LawNews - Issue 12

NEWS Apr 29, 2022 Issue 12

Inside ■ INSURANCE

Why the govt’s new scheme won’t work P06-07

■ COMPETITION

Commerce Commission gets new teeth P08

How law firms do adls.org.nz

FIXED FEES AND FOUR-DAY WEEKS

Contents 03-05 FIXED FEES SUBSCRIPTION RESULTS

The billable hour and the four-day week: what clients really want

LawNews is an official publication of Auckland District Law Society Inc. (ADLS).

06-07 INSURERS REDUNDANCY COMPULSION

Why the govt should hold fire with its proposed income insurance scheme

Editor: Jenni McManus Publisher: ADLS Editorial and contributor enquiries to: Jenni McManus 021 971 598 Jenni.Mcmanus@adls.org.nz Advertising enquiries to: Darrell Denney 021 936 858 Darrell.Denney@adls.org.nz

09 JUDICIARY EXPERTISE CREDIBILITY

Opinion: Why we need specialist judges on the Supreme Court

All mail to: ADLS, Level 4, Chancery Chambers, 2 Chancery Street, Auckland 1010 PO Box 58, Shortland Street DX CP24001, Auckland 1140, adls.org.nz

10-11 FEATURED CPD

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Photo: Eerik / Getty Images

CPD IN BRIEF

Write for LawNews LawNews welcomes commentary and opinion pieces from ADLS members and readers. We ask that contributions are civil in tone, factually correct, well-written and logically argued – and fewer than 800 words. And we won’t publish anonymous commentary.

Any questions, please email the editor at: Jenni.McManus@adls.org.nz

LawNews is published weekly (with the exception of a small period over the Christmas holiday break) and is available free of charge to members of ADLS, and available by subscription to non-members for $140 (plus GST) per year.

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Responsibility for such views and for the correctness of the information within their articles lies with the authors.

Cover: Khaichuin Sim / Getty Images

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Apr 29, 2022 Issue 12

LEGAL PROFESSION

How law firms work with fixed-fee billing and the four-day week

Providing excellent advice no longer suffices. Instead, advice needs to be coupled with outstanding client service, a deep understanding of the client’s business, a values or cultural alignment with what matters to them and a strategic mindset

In the final of a two-part series, LawNews examines how some lawyers have ditched billable hours in favour of new ways of pricing their services. Some are also embracing the four-day working week

Rod Vaughan

Photo: wenjin chen / Getty Images

As we discussed in the last issue of LawNews, firms have been converted to the four-day week while others have abandoned billable hours in favour of fixed fees subscription charging and other forms of remuneration.

This week we speak to several lawyers from around New Zealand who tell broadly similar stories about the stress of keeping their businesses afloat during the chaos of lockdowns and the strategies they employed to look after their staff and clients.

Jacqui Owen, director of Jacqui Owen Legal in Morrinsville, was an early adopter of a four-day working week when covid first struck.

“Two years ago, I looked at my staff and our collective work-life balances.

The hours were insane, as they are for all lawyers and their support staff. But it wasn’t the hours or the workload that was the issue; rather, it was that all of us felt time-poor,” Owen says.

“Everyone had families, partners, sport, community interests that they wanted, and needed, to be available for, and the issue was that all this tended to fall on the Saturdays and Sundays and left no actual recuperation time for anyone.”

So, Owen decided to do something about it and after studying how some large law firms operated four-day weeks she came up with a formula for her practice.

By hiring an extra staff member she

Continued on page 04 03

Continued from page 03 could let everyone work four days a week from 8am to 6pm with a half-hour lunch break.

“We began with a system of rolling days off and you could choose if you wanted a Tuesday, Wednesday or Thursday, provided at least one other person was in the office at the time,” she says.

“After six months we decided this didn’t actually work that well. As we are such a small team, it meant there was never a time where we were all in the office together and collegiality was just not the same.”

As a result Owen decided everyone would work from Tuesday to Friday, giving them a three-day weekend.

“Clients have accepted this exceptionally well and my staff love it. Every weekend is a three-day weekend so they book haircuts, doctors’

was for the mental wellness of myself and my staff and an acknowledgement that the work we do is hard and mentally taxing.”

Owen’s progressive thinking has also led her to shun billable hours.

“We do almost 100% fixed-fee billing.

I think clients like the certainty,” she says.

“We long ago decided that we were not a firm competing on price. We were offering a service and clients are either happy to pay for what we offer or they are not.

“There is very little work that comes through the door that one of us has not seen before so gauging estimated time and complexity is not that difficult.

“Sometimes clients want to chat and fill us in on their lives and I don’t think they should be charged for that on a minute-by-minute basis. That’s not the firm I want to own and it’s not the experience I want to give my clients.”

But for many other lawyers billable

Like many others in our industry, I have increasingly used billable hours as the basis for alternative arrangements

appointments, physio appointments, coffee dates, whatever they want to for a Monday.

“Other law firms seem to think I am either crazy or just not busy or successful enough to need to open for five days, but I can assure you we are a very successful and very busy wee firm.

“The reality is I place huge value on family life, on flexible work arrangements and on work being a part of your life, not the sole focus of it. There has not been a cost-saving aspect to this. The entire motivation 04

hours are still largely the name of the game.

Alternative arrangements MinterEllisonRuddWatts partner Stacey Shortall told LawNews that hourly billing “is not going anywhere anytime soon”.

“In fact, I expect the billable hour will remain a mainstay of the legal industry.

But, like many others in our industry, I have increasingly used billable hours as the basis for alternative arrangements, especially where the volume of the legal

services required can reasonably be predicted.”

Shortall says fixed or flat fees remain popular with clients when a pre-determined fee can be fairly agreed.

“This type of approach works best when there is certainty around the nature and volume of legal work required. So they are often a better fit for repetitive or relatively simple legal services.

“Capped arrangements, where clients agree a fee cap or limit, can also help provide price transparency up-front.

“Similarly, blended hourly rates, where one or several hourly rates is applied regardless of which lawyer provides the advice, can be useful when the seniority of the lawyers needed to work the file can be anticipated.

“I have also had an uptick in subscription-based fee arrangements where clients pay a recurring monthly or annual fee to access particular services.”

Shortall says other fee arrangements can be particularly useful in encouraging clients to measure the value that lawyers add for them.

“Most, if not all, clients would rather pay for results than process.

“So a fixed or flat fee that seeks to measure value can be very helpful, as can a predetermined success payment that is similarly tied to value. But given the nature of the instructions that I typically receive, I have not personally really used these types of arrangements.”

Shortall believes clients want alternative arrangements and are seeking more value for their spend.

“Providing excellent advice no longer suffices. Instead, advice needs to be

Continued on page 05

Stacey Shortall

Deena Himpers

There is very little work that comes through the door that one of us has not seen before so gauging estimated time and complexity is not that difficult

Apr 29, 2022 Issue 12

Continued from page 04 coupled with outstanding client service, a deep understanding of the client’s business, a values or cultural alignment with what matters to them and a strategic mindset,” she says.

“In my experience, clients do not expect to pay for these components.

Rather, they need to see them reflected in the advice that is provided. Lots of work needs to happen outside of hourly billables to ensure this happens.”

Shortall says price transparency and predictability were more important than ever during the early days of the pandemic.

“Clients in the hardest-hit sectors, like tourism and hospitality, unsurprisingly needed even greater certainty around their current and anticipated legal spend.

“More regular interim billing, either by work phase or shorter time periods, was something that I used at the time.

Some clients sought temporary pricing or payment relief. But most just wanted to understand a broader range of alternative fee arrangements like those outlined above.”

But what of the other pressures covid has imposed on the working patterns of lawyers, such as being required to work from home and four-day working weeks?

Shortall sees merit in both scenarios but with several caveats.

“I have long thought of work as something that I do rather than somewhere that I go. So I did not find the concept of working from home particularly difficult.

“The challenge during lockdown and other isolation periods was that my home was also filled with five children attempting, with varying degrees of success, to learn online.

“The blurring of my work and their learning environments made it difficult to put in boundaries and impose limitations on my availability to them.

“So I found myself largely scheduling client zooms around their eating and break schedules, attending team calls with at least one child in view, and working on my laptop while they slept at night. Some days this was easier than others.”

Shortall says there were other disadvantages from working from home

osmosis, simply cannot be replicated virtually.”

Shortall says several lawyers in her team were already working from home several days a week long before covid came along.

“We have always had a predominantly office-based culture that also enabled flex working. This is because flexibility has always helped attract and retain diverse talent, especially working parents.

“When my children were younger,

There has not been a cost-saving aspect to this. The entire motivation was for the mental wellness of myself and my staff and an acknowledgement that the work we do is hard and mentally taxing

as well.

“While it was relatively easy for lawyers who were already working together to continue doing so remotely, introducing new [hires] to the team was more difficult.

“Despite best efforts, virtually integrating into a team as a new starter is hard.

“Remote working also made it harder to identify if someone was struggling and needed help. It also is my view that solely working from home has the potential to jeopardise firm culture and the ability of lawyers to learn,” Shortall says.

“Zoom or Teams calls are no great substitute for face-to-face discussions or the impromptu conversations that enable relationships to be forged.

“I learned so much in my early years from being around more experienced lawyers and observing what they were doing. This type of learning, almost by

I also worked a four-day week in the office and one day at home. I found this great. It enabled me to have a day when I knew I could do the school or kindy run without the risk of getting stuck in the office.”

Because of her current caseload she no longer does this but remains a big supporter of any alternative work schedules that enable more diverse lawyers to work in the industry.

Sensible approach Deena Himpers, practice manager for Sharp Tudhope Lawyers in Tauranga, told LawNews the last two years have been tough.

“I’m pleased to say that our team has faced the challenges of covid-19 headon and I’m proud of how we have pulled together and kept the wheels turning.

“We have continued to meet our clients’ needs and many staff have gone above and beyond during that time.”

Himpers says working from home has become the norm for many of them.

“It has also been good to see a sensible approach taken to being sick.

Seeing people soldier on when unwell is a thing of the past. If someone has a mild illness, they feel supported to continue to work at home and sick leave is used for anything more serious.

“Mental health has been front of mind and staff who felt uncomfortable or are immune compromised have been offered the option of working from home during the Omicron wave.

“We are, however, creatures of habit and many of our staff have preferred to remain in the office where we can communicate face-to-face.”

Himpers says a four-day working week is not on the firm’s agenda.

“While this may sound appealing, the reality is that our clients expect our advice five days a week and often require advice overnight. Our core focus remains to meet client needs in a timely manner.”

Last year the firm celebrated 125 years in business but Himpers says celebrations were scaled back as a result of covid.

“Unfortunately, plans to hold a largescale celebration event were dashed two weeks out, but we were able to pivot to an online celebration instead.

“We considered how we could give back to the community in which we have flourished and donated $10,000 each to two local charities.

“This year we have decided to introduce a $10,000 scholarship to be awarded to a budding law student from the region and we are looking forward to the launch in July.

“There is much to be proud of and look forward to. The key is to stay connected, take care of your staff and remember that people are at the heart of everything we do.” ■ 05

INSURANCE

Experts shut out of govt income and health insurance design Jenni McManus Insurers have castigated the government for failing to involve them at the outset when planning and designing its controversial income insurance scheme to cover employees who cannot work because of illness or disability, or who are made redundant.

If introduced as it stands, the $3.54 billion-ayear scheme will be compulsory for all workers and employers, regardless of whether they already have private income protection and health cover. At present, there are no opt-in or opt-out provisions for these two million New Zealanders who will effectively be paying twice for their insurance.

The government says the scheme will be funded by contributions from employers and employees through a levy of 2.77% of wages and salaries, half of which (1.39%) would be paid by each party.

Within MBIE, the scheme is being described as the most significant policy change in the past 30-40 years. As proposed, it will be run by ACC, making it the biggest insurer in the country, with an estimated 100,000 workers a year getting health, disability or redundancy payouts.

Submissions on the proposals closed on Tuesday.

If all goes to plan, the government hopes to introduce legislation later this year and have the scheme in place in 2023.

Few people spoken to by LawNews are happy with the scheme as it stands, including the ADLS Employment Law Committee which filed a submission asking for the redundancy provisions to be scrapped because of the potential for abuse.

06

Most critical, however, is the insurance sector which is unhappy that the government failed to involve its members – the industry experts – before the consultation paper was put together.

Rushed scheme Richard Klipin, CEO of the Financial Services Council which represents insurers and financial advisers, says while the FSC welcomes the focus on helping New Zealanders think about risk, its members are very concerned about several aspects of the proposal.

“To say this is rushed would be an understatement,” he says, “and what we know is when you have rushed policy development, you have rushed thinking and you end up in a whole number of places that have serious unintended consequences.

“We are really concerned as a sector about the rush that this process has delivered. Not enough time has been taken to work with the sector that knows and understands this area best, because that’s our day-to-day bread and butter – things like claims and assessing people and getting them back to work and managing the complexities …. of people having ill health and accidents.”

By way of comparison, Klipin cites the chaos that has ensued from the ill-fated amendments to the Credit Control and Consumer Finance Act (CCCFA) which has seen hitherto acceptable borrowers locked out of the mortgage market.

“When you rush policy development and you don’t know what your drivers are, you’re going to end up like the CCCFA, in places you didn’t intend and, in the end, New Zealanders deserve better,” Klipin says.

The scheme will be compulsory for all workers and employers, regardless of whether they already have private income protection and health cover

Katrina Shanks, CEO of Financial Advice New Zealand, says her members are also disappointed that more work wasn’t done at the initial stages of the scheme, rather than giving stakeholders a consultation paper and telling them it contained the only options available.

Instead, the insurance sector and other stakeholders should have been given the opportunity to give feedback and put forward other options. “It’s a very big policy change for the country and it needs the correct amount of time [for everyone] to be able to understand the implications and how it would be delivered,” she says.

For example, if the government wanted to cushion for six months the economic shock for a fulltime worker facing serious illness or redundancy, it might want to consider what Shanks calls “step changes” to its welfare benefits rather than trying to introduce another universal insurance scheme.

Shanks (like the ADLS Employment Law Committee) is particularly concerned about the proposed redundancy cover, saying her members are keen to see how claims by the 100,000 affected workers will be split between redundancy, and health and disability. The government has estimated the annual costs for redundancy (which it calls ‘displacement’) will be $1.8b, with the health cover costing $1.73b.

“Redundancy [cover] is a product that hasn’t been very successful in the past,” Shanks says. The reason?

Continued on page 07

Apr 29, 2022 Issue 12

Continued from page 06

It’s easy to rort the system. The government should be exploring this, Shanks says. Few, if any, private insurers offer redundancy insurance nowadays.

Like Klipin, Shanks is concerned that her members are getting the chance to comment on the proposals at such a late stage in their development. The scheme, she says, “needs to be integrated with feedback from stakeholders across New Zealand as opposed to simply providing us with options within a consultation process”.

Redundancy provisions The ADLS submission, signed off by Employment Law Committee convenor Catherine Stewart, says it welcomes, in principle, the introduction of an insurance scheme for employees who are unable to work because illness or disability, which is independently certified through a medical practitioner.

But the committee has significant concerns about the scheme’s application to redundancy. It wants to see the redundancy provisions scrapped or significantly tightened to remove any prospect of them being used for non-genuine redundancies.

“Redundancy has been the subject of significant common law precedent over the last few years, which has developed in the direction of preserving employees’ rights to ensure redundancies are not only genuine but have sufficient evidence to justify the rationale of the redundancy,” the committee says.

“This has had the effect of making it more difficult for employers to implement sham redundancies where they simply get rid of employees for reasons such as poor performance, misconduct, incompatibility or personality issues.

“The introduction of the insurance scheme for redundancies would, in our view, be a major step backwards in terms of providing employers with an opportunity to use redundancies for non-genuine reasons. We do not think that the 28-day bridging payment would act as a sufficient deterrent for employers not to use redundancies in this way.

“Employees may also feel under pressure to agree to being made redundant in order to access the

scheme if they might not otherwise be entitled to redundancy compensation. “ If the provisions are retained, the committee suggests it should be made clear that employers are still required to justify redundancies in the usual way in accordance with common law and must follow a process before reaching any redundancy decision.

It also needs to be made clear that employees who receive redundancy insurance still have the right to bring claims pursuant to the Employment Relations

Redundancy insurance is a product that hasn’t been very successful in the past

Act and the Human Rights Act. Some committee members raised concerns about the timing of the scheme’s introduction, where employers are already under significant financial pressure from the pandemic and the effect of the war in Ukraine. “Others felt that no time was a good time and that there should not be too much emphasis on the current context,” the committee said. An alternative was to have a longer lead-in time so the scheme would not take effect until 2025.

Scoping creep Klipin says the scheme has evolved significantly since it was first mooted.

“There’s been significant scope creep in the proposal,” he says. “What started life as a redundancystyle piece has become a whole lot larger, particularly around health insurance, and as the scope creep has grown, so too has the complexity which is now massive. We have great concerns around that.”

These complexities haven’t been properly thought through by the designers of the scheme, Klipin says.

One example is group insurance schemes.

“There is a whole world of group insurance plans out there where employers have tailored really effective programs for their staff. Again, employers and employees are going to have to pay again. So,

what’s the future of those?” People won’t pay twice for cover, he says.

At the micro level, a big concern for the private insurance sector is cover for mental health issues.

Because it is not specifically excluded, mental illness will presumably be covered by the government’s proposed income insurance scheme, even pre-existing and chronic conditions. But private healthcare policies in New Zealand cover, with very limited exceptions, only physical conditions. Importantly, they offer cover for unexpected events that are yet to occur, rather than chronic or known pre-existing conditions.

Most private insurers state explicitly in their policy documents that mental health conditions will not be covered though some offer reimbursement for limited psychiatric treatment if required after surgery.

Nor is a mental health option generally available as an add-on to policies, such as dental or optical cover.

The exceptions are Southern Cross and nib, which recently began offering holders of gold-level policies limited cover (about $2500 a year) for psychiatric or psychologist consultations.

Private income protection insurance, however, does pay out for mental illness but not for pre-existing conditions. Premiums are high and the underwriting (vetting of applications) is stringent. Again, this is because the cover is open to abuse.

Klipin says the insurance industry “stands at the ready” to be constructive and to participate in the debate. The outcome, he says, must be right. “There’s no other option.”

What this scheme will require, he says, is the creation of the largest life insurance business in the country in terms of its capability, skills, systems and processes. But he wonders if ACC is up for it.

Once the government’s proposal is “right”, an idea that might work is a public-private arrangement like KiwiSaver where the government sets the framework and then goes to the market to find providers.

“There’s a great opportunity here to think much more laterally and much more effectively about how you actually pool the capability and resources in New Zealand to solve a problem,” Klipin says. “But let’s just make sure we’re all agreeing on what problem we need to solve.” ■

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Put bluntly, our competition law jurisprudence has over the years ended up making proof of breach so difficult that area #1 became almost redundant in the New Zealand context.

Photo: Image Source / Getty Images

History and near-death experiences

COMPETITION LAW

Commerce Act: amendment gives new teeth to section 36 claims The Commerce Commission and Productivity Commission each began raising s 36 as a policy problem after a 2012 court decision

Gary Hughes For nearly a decade, provisions in the Commerce Act controlling abuse of market power – ‘dominance’ to many people, although that test was amended years ago – have been stunted, if not moribund.

But the passing into law this month of an important and controversial amendment to s 36 of the Act could infuse new breath into the law on conduct by large firms that may have a damaging effect on market competition.

What utility the Commerce Commission makes of this when the changes take effect in April 2023 will be critical to whether New Zealand competition law experiences something of a renaissance in this area.

The context It can be helpful to think of competition law overall as broadly addressing four areas of possible harm: ■ single firm conduct by a large player to increase its monopolistic power or damage competition by smaller rivals or new entrants; ■ conduct by more than one firm in concert, through contractual or informal arrangements (which can be benign in intent but still affect competition or can be more pernicious such as deliberate collusion and cartels); ■ transactions by merger or acquisition through which firms combine and grow to the size of a large player (increasing the risk of abusive large firm conduct in #1 above); and ■ sector-specific price controls, typically for infrastructure monopoly providers, when market failure is evident or the other three competition law controls above are ineffective.

08

Like most competition law reforms, this has been on a longterm path. The Commerce Commission and Productivity Commission each began raising s 36 as a policy problem after a 2012 court decision.

In particular, problems arose from two interpretative matters embedded in the design of s 36: the focus upon only the ‘purpose’ of the large firm’s action and not its effects (eg, when cutting pricing to borderline below cost in response to a cheaper new entrant); and the causation test applied by the courts, requiring proof of a taking advantage of the market power in support of an anti-competitive intent or purpose (eg, whether other firms without market power might also insist on exclusivity clauses).

Complicated causation tests were developed in the telco war cases – initially Telecom v Clear Communications in the Privy Council in1995 and later cemented by the Supreme Court in CC v Telecom [2010] NZSC 111.

Ironically, the commission actually won the last s 36 case it took, the ‘data tails’ litigation [2012] NZCA 344 and Telecom paid a $12 million penalty. But that was a long, hard-fought appellate battle with flocks of economists giving expert evidence. The commission seems to have since prioritised warnings and lobbying for law reform instead.

Both interpretative issues have now been adjusted, meaning s 36 issues may have more impact on your clients (large and small) in future.

Section 36 as amended The reworded misuse of market power provision now reads: “A person that has a substantial degree of power in a market must not engage in conduct that has the purpose, or has or is likely to have the effect, of substantially lessening competition in– (a) that market; or (b) any other market in which the person, or an interconnected person,– (i) supplies or acquires, or is likely to supply or acquire, goods or services; or (ii) supplies or acquires, or is likely to supply or acquire, goods or services indirectly through one or more other persons.”

This means a lower standard is in place with an ‘effect or likely effect’ test, as an alternative to demonstrating a bad ‘purpose’. Many types of commercial conduct can arguably have different views of the purpose (even reasonably objective purpose), whereas effects can be more reliably measured or predicted.

Continued on page 13

Apr 29, 2022 Issue 12

JUDICIARY

Photo: Hagen Hopkins / Stringer / Getty Images

Why we need specialist judges on the Supreme Court There is a case for co-opting specialist judges to the Supreme Court in circumstances where it lacks sufficient expertise

Anthony Grant The decision to abandon access to the Privy Council was a bold move. It meant we have had to rely for our judges on a very small group of people.

We could have done as Hong Kong did and appointed some of the most competent judges in the common law world on an ad hoc basis to our highest court, but that didn’t happen.

It is very important to New Zealand as a country that we staff our highest court with judges who can be relied upon to produce decisions of international standard. Our ability to attract investment depends upon the existence of a legal system of international competence.

Although there has been an unfortunate refusal to promote judicial specialisation, the aversion to specialisation does not seem to have applied so much to the Supreme Court.

Our highest court requires a tax specialist and Susan Glazebrook, formerly a tax partner in Simpson Grierson, was appointed.

Practical commercial expertise is required and Peter Blanchard, formerly a commercial/property/insolvency partner at Simpson Grierson, was appointed. Subsequently, Mark O’Regan, a commercial partner at Chapman Tripp, has taken on the role.

The recent appointment of Court of Appeal President Stephen Kós to the Supreme Court is important not only because of the need to staff the court with lawyers of international competence but also, from a trusts and equity perspective, it is useful to have a judge with a serious interest in these areas of the law.

Justice Kós was the primary author of the chapter on undue influence in Equity & Trusts in New Zealand. He has delivered some interesting papers on equity, including one in 2018 on the foundations of fiduciary law, which he traced back to Aristotle.

Anthony Grant

Our ability to attract investment depends upon the existence of a legal system of international competence

As a judge he has written some significant decisions on fiduciary duties and economic duress (Dold v Murphy), Beddoe orders (McCallum v McCallum) and applications to the court by trustees seeking directions (NZ Māori Council v Foulkes).

Commercial experience is very important for the judges of our highest court. Few barristers have credible commercial experience but Kós P is an exception. He was chair of the Russell McVeagh partnership between 2003 and 2005 and in that role he supervised and managed a business earning scores of millions of dollars.

Lord Mansfield used to supplement his deficient knowledge of commerce by organising dinners with business people so he could learn what mattered to them.

There is a case for co-opting specialist judges to the Supreme Court in circumstances where it lacks sufficient expertise. For example, when Sir Thomas Gault was on the Supreme Court we had an IP lawyer of international renown but there is no longer a specialist in this area on the court.

When an appropriate case arises, the court should be able to co-opt a person with the necessary level of expertise, whether from lawyers within New Zealand or lawyers from off-shore, and not as an unfortunate compromise but as a matter of sensible practicality.

The Hong Kong Court of Final Appeal showed how such a system could work successfully. Sir Tom, by the way, was coopted to that court so Hong Kong could get the benefit of his expertise in IP law.

I am sure the profession would join me in wishing Justice Kós a rewarding time on the Supreme Court and hope he will feel free to contribute to the expansion of our jurisprudence on many aspects of the laws concerning trusts and equity. ■ Anthony Grant is an Auckland barrister specialising in trusts and estates ■ 09

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Personal effectiveness online workshop (May) PERFORMANCE SKILLS DEVELOPMENT

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Reflecting on your goals for this year? Are you performing at your peak?

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FIND OUT MORE 10

Apr 29, 2022 Issue 12

adls.org.nz/cpd

Harm and revenge in the digital space

Webinar 1.5 CPD hrs Monday 30 May 1pm – 2.30pm Presenter David Harvey, retired District Court Judge Chair and commentator Arran Hunt, partner, Stace Hammond

cpd@adls.org.nz

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Lessons from Lyttle DISCLOSURE COSTS INSIGHTS

Webinar 1.5 CPD hrs Tuesday 7 June 4.30pm – 6pm Presenter Christopher Stevenson, barrister, Pipitea Chambers (David Lyttle’s lawyer)

When did you last make a costs application in a criminal case? Based on the recent Court of Appeal judgment in R v Lyttle [2022] NZCA 52, this webinar will look at the prosecutorial failings in that case and the learnings for any party involved in criminal and regulatory prosecutions, in relation to costs orders, stays and fair trials.

Chair and commentator Julie-Anne Kincade QC, Blackstone Chambers

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The deportation process

In Person | Livestream 2 CPD hrs Wednesday 15 June 4pm – 6.15pm Presenters Richard Small; Deborah Manning; Bernard Maritz and Terri Thompson

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In this seminar, you will receive practical guidance and valuable insights into the deportation process from the perspectives of counsel, INZ Compliance and MBIE Legal.

Chair Stewart Dalley, partner, D&S Law

PRACTICAL GUIDANCE PROCESS

IN PERSON

LIVESTREAM 11

CPD IN BRIEF

Reporting for domestic trusts

Webinar 1.5 CPD hrs Wednesday 25 May 4pm – 5.30pm Presenters Stephen Tomlinson, principal, Tomlinson Law and Geordie Hooft, director, Hooft Consulting Ltd

Most domestic trusts required to file income tax returns must also comply with new reporting rules enacted under urgency and with no prior consultation with stakeholders. Gaining an understanding of the new rules and an insight into Inland Revenue’s operational approach to them, will make it easier to comply and to minimise their impact.

Chair Bill Patterson, managing partner, Patterson Hopkins

FIND OUT MORE

Developments in consumer law

Not just another trusts webinar

Livestream | In Person 2 CPD hrs Thursday 23 June 4pm – 6.15pm Presenters Brigette Shone, special counsel, Russell McVeagh and Charlotte Fleetwood-Smith, consumer law specialist, Russell McVeagh

Are your clients prepared for significant changes in this area of law?

Consumer law has been a moving feast of legislative and case law developments in the past 12 months. Significant changes to the Fair Trading Act come into force on 16 August 2022 with the unfair contract terms regime extending to business-to-business or “small trade” contracts and a new statutory unconscionable conduct regime being introduced.

Webinar 1 CPD hrs Thursday 7 July 12pm – 1pm Presenter Tammy McLeod, director, Davenports Law Limited

Your client may think they need a trust, but in fact what may best meet their needs might well be something else. This webinar will look at when a trust should and should not be used, and what succession planning alternatives might be better suited to the client’s circumstances.

IN PERSON

LIVESTREAM

FIND OUT MORE

Lawyer for the child

Livestream | In Person 2 CPD hrs Thursday 4 August 4pm – 6.15pm Presenters David Amodeo, barrister; Val Muller, barrister; Sonya Singh, barrister and Craig Walker, service manager Family Court coordinators, District Courts, Ministry of Justice

Lawyer for the child is a crucial, complex and challenging role – and easily criticised. So, what is the brief, and how is it fulfilled? This seminar will provide key insights into the role and the statutory framework. Case studies will be used.

Chair and commentator Judge Anthony Mahon

IN PERSON

The Art of Will Drafting: Complex Wills Workshop Wednesday 3 August | Workshop | 3.5 CPD hours Visit adls.org.nz for more information.

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LIVESTREAM

Apr 29, 2022 Issue 12

Continued from page 08

And the wretched counterfactual ‘taking advantage of’ test is gone – now simply ‘engaging in’ the conduct.

Other matters A quick summary of other important things that are changing, besides s 36, includes: ■ reliance on intellectual property rights (eg, patents) used to have an exemption, now removed; ■ penalties increased to maximum $10m for mergers consummated without seeking clearance, if leading to substantially lessened competition; ■ procedural changes to streamline commission authorisations applications – a path often so long and costly that few bother with it; ■ covenants now expressly defined to be part of cartel provisions – a nod to restrictive land covenants in the supermarkets inquiry.

What happens next?

Large firms with significant power in their sector may need to reassess certain trade practices and established contracts they have in place, and whether this law change could now bite upon them.

Similarly, small firms that have experienced a hardball competition stance from an incumbent or dominant player might have new avenues to consider whether those tough tactics may cross a (now lowered) anti-competitive threshold.

Some amendments come into force sooner, but the important market power provision changes have a 12-month implementation time – 5 April 2023 is when the law will change.

We can expect the commission to issue detailed guidance in the coming months. How aggressively it moves next year will be important, as will the extent to which smaller players and their advisors are willing to take private action to test the new effects’ threshold. ■ Auckland barrister Gary Hughes specialises in regulatory investigations and proceedings (eg, Commerce Commission, FMA, SFO, and AML-CFT supervisors) along with insurance or privacy aspects.

See: www.law-strategy.nz or gary@garyhughes.nz ■

WILL INQUIRIES

Please refer to deeds clerk. Please check your records and advise ADLS if you hold a will or testamentary disposition for any of the following people. If you do not reply within three weeks it will be assumed you do not hold or have never held such a document.

LawNews: The no-hassle way to source missing wills for $80.50 (GST Included) reception@adls.org.nz

ADLS, PO Box 58, Shortland Street,

DX CP24001, Auckland 1140

Fax: (09) 309 3726

BALL Carol Anne • Late of Manurewa, Auckland • Retired • Aged 74 / Died 20’02’22

(09) 303 5270

Brenda Irene • Late of Arran Court – Radius care , West Auckland • Retired • Aged 70 / Died on or about 13’04’22

PIPER Dallas Michael • Late of 35A Tindalls Bay Road, Tindalls Bay, Whangaparaoa • Married • Sales Consultant • Aged 55 / Died 12’03’22

POLLARD

NOW PUBLISHED

Garrow and Kelly Law of Trusts and Trustees, 8th edition Authors Chris Kelly and Greg Kelly, with Colette Mackenzie and Kimberly Lawrence With the reform of the Trustee Act 1956 bringing about the biggest change in New Zealand trust law in more than 60 years, the introduction of the Trusts Act 2019 reinforces the need for a text that covers tricky, practical aspects of trust law.

This edition updates and incorporates the significant legislative changes of the Trusts Act. In addition, our highly experienced authors have included relevant case law since the last edition was published in 2013.

Price for ADLS members $172.17 plus GST* Price for non-member lawyers $191.30 plus GST* (* + Postage and packaging) To purchase this book, please visit adls.org.nz; alternatively, contact the ADLS bookstore by phone: (09) 306 5740, fax: (09) 306 5741 or email: thestore@adls.org.nz.

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Cradle to Grave™ Conference 2022 Thursday 5 May, 8.45am - 5.05pm In Person (Auckland venue) | Live Stream For those lawyers working at the interface between trust, property and family law, our annual Cradle to Grave™ Conference is coming soon.

T 09 303 5278

E cpd@adls.org.nz

W adls.org.nz/cpd

Youth Advocates Conference 2022 Friday 13 May | 10.00am - 2.30pm Live Stream | In Person This year’s Youth Advocates Half-Day Conference will provide practically focused sessions on a range of pertinent topics presented by youth justice professionals.

T 09 303 5278

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E cpd@adls.org.nz

W adls.org.nz/cpd