LawNews - Issue 16

THIS WEEK’S ARTICLES

Issue 16 28 May 2021

District Court: next steps for reform p1

When courier deliveries go wrong p3

Tips and tricks for avoiding burnout p5

LawNews adls.org.nz

THE COURTS

Chief DC Judge reveals next steps for reform

By Jenni McManus

The first stage of the three-year transformation of the District Court has begun, with consultation now underway among judicial leaders, community groups and iwi.

They will help design the framework of Te Ao Mārama (‘the world of light’), a new system where tikanga, and the principles and best practices of the specialist and therapeutic courts, will be mainstreamed into New Zealand’s largest court system.

The change, a radical move, was announced by Chief District Court Judge Heemi Taumaunu in November last year.

Since then, details of exactly how and when the new system might be rolled out, and how it might work, have been sparse. But Judge Taumaunu took the opportunity earlier this month at a conference of the International Association of Women Judges to reveal a few more details.

“We are at the beginning of the process in terms of design and consultation,” he told attendees in a speech delivered at the opening of the conference, at Auckland’s Orakei Marae. “We have to respect the people involved in this process when we drill down into the detail. “ Judge Taumaunu said “enhancing connections” with iwi and local communities was a very important part of Te Ao Mārama. “A key feature is to encourage a restorative approach that creates pathways that lead to healing, rehabilitation and to enhanced wellbeing.

“We need to become a place where all people can be confident that they can come to seek justice.…

This is about confidence in the administration of justice in our courts and it doesn’t matter what your means are or your abilities. It doesn’t matter about your ethnicity or culture or language….

Conference speakers Chief District Court Judge Heemi Taumaunu, Judge Caren Fox and Sharon Hawke

We need to become a place where all people can be confident that they can come to seek justice. This is about confidence in the administration of justice in our courts

“As a default position, we will be adopting a solution-focused judging approach in the mainstream which I don’t think has ever been done internationally before in a system such as ours.

There could be a good reason why, as it’s very hard to do, but that doesn’t mean we shouldn’t do it.”

This would involve identifying risks and needs and bringing the strengths of local tribes into our courtroom. “And we’re going to better coordinate what is happening between our agencies and offering the benefits of the lessons we’ve learned in these specialist courts to everyone in the mainstream [district court system]”.

Continued on page 2

THE COURTS

Chief DC Judge reveals next steps for reform Continued from page 1 The year 2040 will mark the 200-year anniversary of the signing of the Treaty of Waitangi and Judge Taumaunu says he’d like to think New Zealand could “get it right” before then.

“We have 19 years to do something different.

Because, if we keep doing what we’ve been doing, then a very great thinker of our generation would define that as insanity. This is a call to action. It is time to try a different approach to get a different result. It is the right thing to do.”

The calls for change have been coming from all quarters, Judge Taumaunu said – not only from defendants, but also from prosecutors, victims, educators and other stakeholders.

“Essentially, there was a very consistent message that people coming to court were left feeling they hadn’t been heard, that they hadn’t been understood and that they hadn’t received a fair hearing – and, effectively, had not been able to seek justice.”

A change of culture was needed which, he said, “was well understood by judges, given the fact there have been so many efforts in the past to try to address these issues …. If we’re all looking for a more enlightened world, I think it makes sense to be looking for a new approach to the way we administer justice in our court.”

The principles are easily identifiable. “Equitable treatment, looking at the procedural fairness of our processes to try to achieve this thing of having people being heard and understood, and looking at our substantive fairness from the point of view of well-informed decisions being made by ensuring the best information is provided to judicial officers….

We’ve learned that if we don’t have these courts universally available to everyone, then there a problem because it means not everyone can benefit from the obvious advantages that these courts bring

“They play their part and the most important part [is] by transforming the face of the justice system to allow the Māori voice to be heard. It enhances respect for the rule of law when the law is speaking in the language of the people it is dealing with,” Judge Taumaunu said.

“Infusing tikanga and te reo Māori into the processes is something that we’ve learnt from these other courts is very good practice, not just the fact that it’s part of our founding culture.”

Judge Taumaunu recalled the opening of a Rangatahi court on Orakei Marae in 2010, two years after the first one had been set up in Gisborne. The judge was Eddie Paul whose father, Manu Paul, was well-known in Māori circles and had been part of the Bastion Point occupation in the mid-1970s.

“Using plain language, toning down the formalities in the courtroom. That might sound small, but I guarantee if you go and sit in the back of the court at the moment, this is a challenge. It’s quite hard to understand unless you’re a lawyer or someone really engaged in the process. It’s hard to meaningfully participate unless you understand the language that’s being used.”

“On the first day of that court sitting, all the elders who were here were involved in the occupation of Bastion Point and the eviction that occurred, and the police prosecutor who came to prosecute on the first day of the Rangatahi court was one of the police officers involved in the eviction,” Judge Taumaunu said. “So, from that space of time between 1978 and 2010 it was quite a remarkable turn of events in our legal history that the Rangatahi court was operating here on this pa.”

While not a magic bullet, the Rangatahi courts, with their focus on restorative justice and the drivers of offending, could provide useful experience.

But for people to understand the reasons behind Te Ao Mārama, he said it needed to be placed in an historical context. The Māori legal system had

LawNews

Editor: Jenni McManus

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

Publisher: ADLS Editorial and contributor enquiries to: Jenni McManus, phone 021 971 598 or email jenni.mcmanus@adls.org.nz Advertising enquiries to: Darrell Denney, phone 021 936 858 or email Darrell.Denney@adls.org.nz

2

been based on tikanga for the first thousand years, he said, but for Māori the wheels began falling off at the end of WW2, when their rates of imprisonment and the number of Māori children taken into state care began to escalate significantly. In part, this was due to large numbers of Māori leaders being killed during the war but the migration of Māori to the cities also had a major effect. Under-pinning this was the sense of alienation of their land.

The focus of Māori grievance turned towards the courts and criminal justice system from the 1980s onwards, Judge Taumaunu said, fuelled by the occupation of, and eventual eviction from, Bastion Point. This was followed by what he described as “the most transformative piece of legislation we’ve had” – the Children and Young Persons Act 1989 – because it transformed the Youth Court into what it is today.

The first marae-based Rangatahi court was set up in May 2008; there are now 16 spread around the country.

But these courts, along with the specialist therapeutic courts such as the AODT (Alcohol and Other Drug Treatment) courts, are not the complete answer.

They are “centres of excellence for best practice”, Judge Taumaunu said, and “I am very secure in my own mind that we must continue to support those courts”, they can lead to post-code justice.

“We’ve learned that if we don’t have these courts universally available to everyone, then there is a problem because it means not everyone can benefit from the obvious advantages that these courts bring,” he said. “They are resource-intensive, and they are able to cater only for a small number of participants.”

Judge Taumaunu also gave conference participants some idea of the enormity of the task ahead.

New Zealand’s 182 permanent District Court judges (41% of whom are female), working across 58 courthouses, last year resolved 120,000 criminal cases, 3,200 Youth Court cases, 600 defended civil cases, 80,000 Family Court cases and conducted 3,000 jury trials.

It is the biggest and busiest court in the country.

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 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. To subscribe, please email reception@adls.org.nz.

©COPYRIGHT and DISCLAIMER Material from this publication must not be reproduced in whole or part without permission. The views and opinions expressed in this publication are those of the authors and, unless stated, may not reflect the opinions or views of ADLS or its members. Responsibility for such views and for the correctness of the information within their articles lies with the authors.

LawNews Issue 16 | 28 May 2021

CONTRACT AND CONSUMER LAW

Scant joy for consumers when couriers go wrong

By Diana Clement

Have you ever felt frustrated when that parcel you’re expecting is delivered to the wrong address? Or is stolen from your doorstep? Or, even worse, the courier has forged your signature and your parcel is nowhere to be found?

Forced out of the malls and supermarkets by pandemic restrictions, consumers are increasingly shopping online. But there’s a downside to the speed and convenience of online shopping: complaints about non-delivery of goods and shoddy service are rising sharply.

Consumers are piling onto Facebook community groups with desperate pleas for help to locate missing parcels and complaints about poor courier behaviour. Videos of couriers lobbing parcels over fences go viral.

So, if a parcel doesn’t make it into the hands of a purchaser, who is liable to make good the loss? Is it a simple matter of a contract being breached?

It all depends, says Dr Zhixiong (Leo) Liao, senior lecturer at the University of Waikato. There are scenarios where the courier might be able to justify this behaviour and just who is left holding the baby under contract law can be a complicated issue.

The carriage of goods in New Zealand, including courier deliveries, is governed principally by the Contract and Commercial Law Act 2017 (CCLA), says Richard Massey, a senior associate at Bell Gully. The Consumer Guarantees Act and Fair Trading Act might also be relevant.

Courier companies use standard-form contracts and each is different, although there are many similarities. The rights and liabilities of the contracting parties depend on the type of contract of carriage the parties enter into, Massey says. The four types recognised by the CCLA are:

at ‘declared value risk’ where the carrier is liable for loss of or damage to goods up to an amount specified in the contract;

at ‘owner’s risk’ where the carrier is liable only for damage intentionally caused by the carrier;

on ‘declared terms’: under these contracts, all the terms are negotiated and the carrier’s liability is governed by the specific terms of the contract; and

at ‘limited carrier’s risk’ where the carrier’s liability for unintentional damage is capped at $2,000 per ‘unit’.

The default position in New Zealand is the limited carrier’s risk.

What happens when a courier contract goes wrong depends first on who the contractual parties

Dr Zhixiong (Leo) Liao

Richard Massey

are. The most common contract is between the consignor (sender) and the courier company but sometimes it’s the consignee (receiver) and the courier company.

might not surprise members of the public if they read and understood them.

Consumer Guarantees Act While most consumers assume if their goods don’t turn up they’ve lost money, the reality is that they’re protected by the Consumer Guarantees Act 1993.

The Act provides that where a supplier is responsible for arranging delivery of goods to a consumer, there is a guarantee that the goods will be received by the consumer at an agreed time if applicable or otherwise within a reasonable time, Massey says.

“Where delivery of the goods fails to comply with that guarantee, the Consumer Guarantees Act gives the consumer a direct right of redress against the supplier, including a right to reject the goods if the failure is of a substantial character, and to obtain damages.”

Courier companies understand the Consumer Guarantees Act and when it comes to business customers, they add exclusions to their terms and conditions.

The contracts themselves are full of exemption clauses that limit the liability of the courier company. For example, says Liao, in the New Zealand Couriers’ contract, clauses 4 and 19 limit the provisions of the Contract and Commercial Law Act. There are limits as to who can make a claim, limits to the compensation, a timeframe limit, limited liability for breach of contract and exemptions liability for tort, even if the breach was a result of negligence or an intentional act of the employee of the courier company.

Such teflon-coated clauses where nothing sticks

Who is liable?

The big question for many consignors and consignees is where the liabilities lie when parcels are not delivered according to the service they signed up for.

Once again, the courier contracts are tefloncoated. "Provided the carrier delivers goods in accordance with the manner expressed or implied in the contract, the contracting carrier’s responsibility for the goods generally ends upon delivery to the recipient [the ‘consignee’], Massey says.

In cases where a call-to-collect card is left at a property, with goods to be collected by the consignee, the carrier’s responsibility ends when the goods are collected by the consignee or on the expiry of the fifth day after the date on which the carrier notifies the consignee that the goods are available for collection.

What is ‘delivered’?

But the more you dig, the murkier it gets. What does ‘delivered’ actually mean? Left in your letterbox?

Handed to whoever opens the door, even if it’s your untrustworthy flatmate? That may well turn out to be the meaning of ‘delivery’ in many cases.

Or, for example, clause 2 of the NZ Post (CourierPost) service terms and specifications outlines the situation where the parcel is collected by the recipient or other authorised person. Once that has happened, the courier company is off the hook, even if the person in possession of the callto-collect card isn’t the correct recipient.

“However, where a signature is required, if the parcel is left somewhere without the signature of the intended recipient or his or her agent, including Continued on page 6 3

THE COURTS

Interim guidance: wearing taonga in court

NEW BOOK

Nevill’s Will Drafting Handbook, 8th edition Author: Sarah Parsons The eighth edition of Nevill’s Will Drafting Handbook is a practical tool for modern will-drafters and legal executives, updated to reflect the significant changes to trusts law, as enacted by the Trusts Act 2019.

Written in plain English, the sample clauses and sample wills are easy to follow and simple to use.

Price: $139.13 plus GST* Price for ADLS members: $125.22 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.

Mana Taumaunu and NZLS President Tiana Epati

Chief Justice Dame Helen Winkelmann has issued interim guidance about the wearing of culturally significant decorative taonga by counsel as part of business attire during court appearances.

All counsel, along with judicial officers, court staff, stakeholders and others who perform official roles are now permitted to wear taonga in place of a necktie. As with ties, taonga are to be worn with a shirt that has the top button done up.

“The overriding requirement is that conduct and attire demonstrate respect for the court and those participating in its proceedings,” Justice Winkelmann said.

PARTNERSHIP OPPORTUNITY This firm is an established small and growing firm based in Newmarket specialising in Asset Protection, Commercial and Property work. This is an affordable opportunity for an ambitious asset protection, property or commercial lawyer with 5+ yearsʼ PQE to buy a 50% share of the firm.

Expressions of interest sought in the first instance by emailing advertiser@adls.org.nz quoting reference: Partner0521 Expressions of interest close on 11 June 2021

This guidance is an interim measure until the 2009 Court Etiquette Guidelines (which define ‘business attire’) are updated.

It is not intended to provide a comprehensive definition of taonga but, for the purposes of this guidance, ‘taonga’ is intended to refer to a decorative item of special Māori cultural significance that is worn around a person’s neck.

This space could be yours

Article II of Te Tiriti o Waitangi provides for the protection of Māori tino rangatiratanga over all taonga. Academic literature has observed it is unlikely that a comprehensive definition of taonga is available, Justice Winkelmann said.

LawNews reaches a discerning audience of nearly 6000 lawyers, judges, politicians and academics every week.

Descriptions of taonga are accepted to have broad scope that includes intangible concepts such as language and the make-up of familial units. The Waitangi Tribunal has summarised the meaning of taonga in the following manner: “Though the term has a number of other more mundane meanings, successive carefully reasoned reports of the tribunal over many years now have come to treat ‘taonga’, as used in the treaty, as a tangible or intangible item or matter of special cultural significance.”

4

Get your message in front of them.

Call our advertising executive, Darrell Denney, on 021 936 858 or email Darrell on Darrell.denney@adls.org.nz

LawNews Issue 16 | 28 May 2021

HEALTH & WELLBEING/LAW FIRMS

How lawyers can deal with burnout

By Katie Gray

Taking an “if it ain’t broke, don’t fix it” approach might be tempting, but this ignores the reality that many lawyers, at times in their careers, feel broken.

Thanks to the pandemic, burnout is becoming a hot topic in the area of workplace well-being and effectiveness. Research reveals that:

Research shows those experiencing burnout are: 63% more likely to take a sick day

89% of respondents said their work life was getting worse;

23% more likely to visit the emergency room 13% less confident in their performance

85% said their well-being had declined; 56% said their job demands had increased; and

57% felt the pandemic had a large effect on, or completely dominated, their work.

Burnout has been a significant issue in the legal industry for many years. A 2020 Gallup report identifies the root causes and few would be surprised that many of these triggers are inherent in legal practice.

The report links the root causes to poor leadership so the impact of burnout is often compounded when leaders themselves are burnt out.

While this may sound dire, the encouraging message is that burnout can be combatted through transformational leadership focussed on more effective and supportive communication and changing behaviours so leaders prioritise identifying, managing and dealing with stress within themselves and their teams.

What is burnout?

Burnout is an occupational phenomenon defined by the World Health Organisation as “a syndrome conceptualised as resulting from chronic workplace stress that has not been successfully managed.”

The WHO describe three dimensions of employee burnout:

Katie Gray

Examples of how this plays out in the legal context include:

What causes it?

Current research indicates the causes of burnout are: Unsustainable or unmanageable workload Perceived lack of control Insufficient rewards for effort Lack of a supportive community Lack of fairness Mismatched values and skills Unreasonable time pressure Unclear communication from managers

A failure to push back on unreasonable client demands due to fear of losing the client or other potential repercussions

A perceived inability to apply boundaries to protect time outside work or commit to or participate in non-work-related activities or pursuits

A culture that promotes working excessively long hours (including during personal time) and putting work ahead of family and other commitments. The Gallup research shows burnout risk increases greatly when employees exceed an average of 50 hours per week and escalates even more at 60 hours per week. And let’s face it, regularly working 10-12 hour days is not unusual in the legal industry

Mixed messages around well-being, such as the introduction of self-care initiatives while not allowing employees the time or autonomy to implement them

Reduced professional efficacy.

Burnout diminishes an employee’s desire to learn and grow because most of his or her energy and mental focus is consumed by daily survival.

2.6 times more likely to be actively seeking a different job

And if that’s not enough, the Southern Cross 2019 Workplace Wellness Report revealed that New Zealand lost around 7.4 million working days at a cost of $1.79 billion due to employee absence.

Feelings of energy depletion or exhaustion; Increased mental distance from one’s job or feelings of negativism or cynicism relating to one’s job; and

Half as likely to discuss how to approach performance goals with their manager

Clunky and time-consuming internal processes

Lack of transparency around work allocation resulting in perceived favouritism, cliques, isolation and ostracism

Fear or ego-driven competitiveness that impedes the creation of a supportive environment

Mission statements or organisational values that don’t resonate at a personal, broader community or societal level

Intense pressure placed on seniors and partners to exceed expectations in all competencies including profitability

Why should we care?

As long as law firms remain profitable and legal teams continue to provide excellent service, there might be a reluctance to focus on burnout.

Fixing the problem Gallup and workplace expert Jennifer Moss have several suggestions and recommendations.

When a legal lens is applied to these recommendations, it boils down to leaders engaging in meaningful conversations with staff and peers where they demonstrate trust, trustworthiness, a willingness to try new approaches, empathy and a commitment to making work more meaningful.

How can this be achieved in practical terms?

Take responsibility Leaders need to acknowledge that employee burnout is a leadership issue. They should consider taking a “people first” approach with the view that talented employees who are supported by leadership will want to work hard and be highly productive.

Meaningful conversations Ensure managers demonstrate trust and empathy as they engage in meaningful conversations with their team and across the organisation.

This is especially important in a remote working environment where a team member’s contact with his or her manager or working group might constitute the bulk of their exposure to organisational culture.

This involves: Actively listening to work-related problems: employees whose manager is always willing to listen are 62% less likely to be burnt out.

Take care to listen closely enough to hear what is not being said. If an employee alludes to a situation that sounds stressful but in the same breath insists they are “fine”, this might be an area for tactful and respectful inquiry.

Soliciting feedback and opinions: instilling in team members a sense of control over their work.

Continued on page 10 5

Continued from page 3 an employee or sub-contractor of the courier with the authority to sign, the courier company would have breached the contract,” says Liao.

What are you implying?

It’s with the word ‘implied’ where parcel deliveries can really come unstuck. If, for example, you signed a form allowing the courier to sign on your behalf and leave the parcel at your front door, then agency law comes into play and the parcel is deemed to have been delivered once it is left at your front door by your ‘agent’, the courier.

That raises the issue of double agency, Liao says. “[It’s a] conflict of interest issue, in that the authorised person has a duty to act in the best interest of the recipient who has given the authorisation but the authorised person is also an employee of the courier company.”

There’s also apparent or ostensible agency to consider, he says. “The employee of the courier company may argue that he or she has reasonable grounds to believe someone answering the door or the receptionist of the office has the authority to sign or receive the parcel.”

Business practicalities It sounds very unsatisfactory for the consignors, who are left holding the baby under the Consumer Guarantees Act if a parcel goes walkabout. On the other hand, you also need to consider the commercial reality of running a courier operation.

Some might argue the prevailing delivery practices are so well known that they becomes notorious business practices that are necessary for business efficacy, Liao says.

“The users and the law may have to put up with this widely accepted practice if there are no better or practical alternatives. Otherwise, nobody would be brave enough to run such a business.”

The underlying policies may also be relevant. If you’re paying $4.49 for Aramex to deliver a 10kg parcel in a banana box, the balance between expectation of high-quality of services versus the costs/business risks isn’t that great.

Forged signatures Without authority, signing on behalf of a customer may be deceptive conduct or an ineffective recognition of the reception of the parcel, says Liao.

NZ Post, owner of CourierPost, says it doesn’t condone its couriers signing on behalf of clients.

“No, it is not acceptable for a signature-required parcel to be signed for by our couriers when there is no authorisation to do so,” the company says.

“It is expected that all our contractors follow our standard processes and, in the case of a signaturerequired parcel, that they obtain a signature from someone at the address.”

NZ Post says it takes instances such as these seriously and disciplinary action can be taken.

“This might include 'non-compliance' being lodged on a courier's record with us and in some instances 6

The public needs to consider this question: how much are they willing to pay in exchange for better or more reliable service from courier companies?

unless mandatory statutory requirements provide otherwise.”

their contract with us may be terminated.”

In that case, Liao says, DHL mistakenly delivered export documents to the wrong party. This enabled an Italian importer to use the documents to uplift goods without paying.

To sue or not to sue?

In reality, little case law exists because the value of each contract is generally low and the standardform contracts exclude or limit liability in most cases.

For example, says Liao, clause 13 of the NZ Post service terms says: ‘We will not pay compensation for any other direct or indirect loss or damage caused to you or your items, even if caused by an intentional act or negligence of our employees, unless we are required to by law.” In other words, take us to court or you’ll get nothing.

A ‘frame of reasoning’ exists when assessing whether the exclusion or limitation of liability clauses might protect the courier company from liability, Liao says.

“Because the exemption clauses are part of the standard from terms and conditions, it is very unlikely that a user would have actually read them before entering into the contract. In such a circumstance, the issue is whether a reasonable notice has been given prior to the contract.

“What amounts to a reasonable notice could be a complicated issue, which requires the assessment of all the relevant facts in the particular circumstances. Generally, the wider the exemption scope, the more serious the breach or conducts being covered [and] the higher the standard of reasonableness.

“For exclusion of negligence or intentional act, the notice needs to be more readily available and easier to draw to the user's attention.” Applying this standard of reasonableness, clause 13 of the NZ Post service agreement may be an issue because it’s not set out in bold type.

“Secondly, assuming an exemption clause is a part of the contract, the issue is then whether the breach of contract, failure of delivery, loss of or damage to the parcel falls within the coverage of the exemption clause.”

Where there is an ambiguity, the court will interpret the clause against the courier company, “but will not do a hostile interpretation,” says Liao. “This is because the court may not ignore the freedom [of parties to] contract which is the cornerstone of contract law and a must for a market economy.

“If it is clear that the loss and how it was caused falls within the coverage of the exemption clause, the court will have to allow the protection of the clause to be available to the courier company,

This will be the case, even if the courier company has completely failed to perform its contractual obligations or is in “fundamental breach” of the contract.

DHL International NZ Ltd v Richmond The Court of Appeal in DHL International NZ Ltd v Richmond [1993] 3 NZLR 10 allowed the exemption clauses, even for fundamental breach.

Richmond sued DHL, but the latter relied on the exemption clauses including one limiting the liability for direct losses to $100. “The Court of Appeal held that the exemption clauses clearly applied so that DHL may rely on them.”

Common law Most courier companies’ terms and conditions, such as clause 16.3 in the NZ Post contract, preclude the consignees from suing.

The recipient could argue under common law that as the owner of the parcel, even if not a party to the courier service contract, he or she could still sue the courier in tort. “Of course, the cost of time, money and worthiness of the litigation is another issue,” says Liao.

Disgruntled recipients could also complain to the Commerce Commission, which could issue warning notices, impose a fine or bring a court proceeding against errant courier companies.

Grounds could be breach of the Fair Trading Act if the courier company’s employees (or contract drivers) forged signatures or intentionally destroyed or dumped the parcels rather than delivering them to the recipients, says Liao.

Antiquated law To the lay person, it might seem that contract law hasn’t caught up with Covid and the 21st century.

But Liao argues that common law develops slowly and that new legislation could have unintended consequences.

Courier companies, as service providers, are also entitled to protection and the freedom of contract principle must be respected.

“No benefit comes without a cost,” he says. And the public needs to weigh up its tolerance of the problems versus the cost of sending parcels.

Do they want their Noel Leeming deliveries, for example, to cost $10 a time instead of $5?

So, the public needs to consider this question: how much are they willing to pay in exchange for better or more reliable service from courier companies?

A better solution, Liao argues, would be increased competition among the courier service providers.

“In this regard, the Commerce Commission may have a greater role.”

LawNews Issue 16 | 28 May 2021

Collegiality Events Inaugural Annual Breakfasts with the Rt Hon Dame Helen Winkelmann Wellington Thursday 8 July | 7.15 am - 8.30 am InterContinental Wellington | 2 Grey Street Christchurch Thursday 19 August | 7.15 am - 8.30 am The George | 50 Park Terrace

9 Jun

Newmarket Lawyers’ Lunch New York Grill

10 Jun

Tauranga Sundowner Tauranga Club

9 23 Jun Jun

Northland Lawyers’ Lunch The Quay

For tickets & more information click on this page or contact us T 09 978 3970

E events@adls.org.nz

W adls.org.nz/collegiality

7

To view all ADLS CPD & register: adls.org.nz/cpd Email us: cpd@adls.org.nz Phone us: 09 303 5278

Featured CPD Excellence in Legal Writing – Hamilton — FINAL NOTICE Legal writing is the “bread and butter” of a lawyer’s practice. Writing well is harder than it looks, though. For years, we've been told that we should "write like Katherine Mansfield". But how? This workshop will introduce you to three simple hacks to improve your written work: writing concretely; writing actively; and writing less.

It builds on the work of linguistic experts, notably Helen Sword and Steven Pinker. But never fear: the words "subordinate clause" will not feature. We’ll also deploy a fourth tool – “point-first advocacy” – to structure arguments for maximum impact. This learn-by-doing workshop will help you achieve writing excellence.

Learning outcomes:

 Workshop CPD 3 hrs

 Thu, 3 Jun 10am – 1.15pm

 Presenter Andrea Ewing, Crown Counsel, Crown Law Office (Criminal Team)

• Learn the hallmarks of crisp legal writing – concrete, active, brief.

• Understand the common traps that frustrate clear writing.

• Practice editing to write well.

• Develop your skills in “point-first” advocacy.

Click here for more locations and dates.

Leading in Law Workshop – Leading Yourself This distilled leadership development programme provides participants with a range of practical leadership insights, behaviours and tools. Framed in contemporary leadership best-practice, where the primary role of a leader is to empower people to perform and grow, this is an engaging, sometimes challenging, leadership development experience.

Places are limited. Register now to avoid missing out.

Feedback from other sessions: •

• •

Created a good initiative environment with a very good presenter who knew his topic well and was passionate about teaching other to lead.

This really is a great course and should be encouraged right across the profession and at all levels A+.

Tony is excellent whilst he encourages debate and engagement it is his course and his content, and he is brilliant at conveying that content.

 Workshop CPD 4 hrs

 Thu, 10 Jun 9am – 1.15pm

 Facilitator Tony Gardner, Managing Director, Archetype Leadership + Teams

Learning outcomes: • • • •

Gain an understanding of contemporary, real-world leadership.

Experience authentic personal growth.

Build your knowledge of a range of leadership techniques and tools, and how to use them.

Garner practical leadership development actions to implement during and after the programme.

Remedies: Expectation Damages & Damages for Misrepresentations In Person | Live Stream Cases are often won on liability but lost on remedy. A sound knowledge of the remedies available to litigants in civil matters and the general principles which guide the courts in assessing the appropriate relief, is critical for all lawyers. Clients are less interested in the cause of action and most interested in the result that can be achieved!

The first in a two-part series on Remedies, this seminar discusses expectation damages, and damages for claims of misrepresentation under the Fair Trading Act, the Contract and Commercial Law Act and in tort.

Learning outcomes: • •

• • • • •

• • •

Receive a general overview of expectation damages and understand the terminology.

Refresh your knowledge on the usual remedies in contract (damages, specific performance and injunction) and learn about other rules or remedies available in exceptional circumstances.

Learn about choice of remedy: choice of kind or measure.

Learn about the rule in Hadley v Baxendale and the rule against double recovery.

Learn about expectation damages in different circumstances.

Learn more about the limits to expectation damages, the extent of award, date of assessment, and mitigation.

Receive a brief overview of the elements of a claim for misrepresentation under the Fair Trading Act, the Contract and Commercial Law Act and in tort.

Learn about the different measures of damages for each claim and the key differences between them.

Understand the discretionary nature of remedies.

Learn about recent case law in the area.

 Seminar

Livestream

CPD 1.5 hrs

 Tue, 15 Jun 4pm – 5.30pm

 Presenters Suzanne Robertson QC, Barrister, Bankside Chambers Peter Wright, Barrister, Shortland Chambers

Business Interruption Insurance and COVID: Update on recent overseas cases and the implications for New Zealand

 Webinar

The UK Supreme Court and the NSW Court of Appeal have recently ruled on the application of business interruption (BI) policies to losses caused by COVID-19. In this webinar, we explore the scope of the two decisions, and consider the potential implications for New Zealand (where exclusions for pandemics such as COVID-19 are common). Both overseas decisions address a number of fundamental principles relating to BI claims, including policy interpretation, causation, and trends clauses. The webinar is therefore relevant not only in respect of claims for COVID-19, but is also relevant more generally to all BI claims.

 Thu, 17 Jun

Learning outcomes: • Learn about the rulings from the UK Supreme Court and the NSW Court of Appeal about BI cover for COVID-19 • Gains insights into the key principles arising from the cases as they relate to COVID-19 claims and to BI claims more generally • Understand the implications of the decisions for New Zealand 8

CPD 1 hr 12pm – 1pm

 Presenters David Friar, Partner, Bell Gully Sam Hiebendaal, Senior Associate, Bell Gully

LawNews Issue 16 | 28 May 2021

CPD in Brief The Technological Future of Legal Practice

 Webinar

The impacts of COVID-19 have been far-reaching and multifaceted for the entire legal sector. One of the most pronounced consequences has been the forced mass adoption of technology by legal professionals, firms and courts alike. While the nascent field of law and technology experienced rapid growth prior to 2020, the COVID-19 pandemic has catapulted the field to prominence. Across all aspects of the legal sector, technology use is ubiquitous and there is no better time to take stock of the changes and what is yet to come. Matt Bartlett from the New Zealand Centre for ICT Law will provide case studies and insights about legal technologies across both New Zealand and international jurisdictions. These technologies range from straightforward transitions to the online space, like e-filing, to disruptive tech like AI-powered chatbots and algorithmic dispute resolution platforms. These technologies are beginning to reshape key tenets of legal practice.

Presenter: Matt Bartlett, Research Fellow, Faculty of Law, University of Auckland and New Zealand Centre for ICT Law

CPD 1.5 hrs

Name Suppression: Privacy, Reputation and Fair Trial

 Seminar

In Person | Live Stream Name suppression – or its removal – has recently been in the spotlight in some newsworthy cases. With suppression come interrelated and countervailing interests. On the one hand, clients wish to protect their reputation and privacy, their right to a fair trial and due process. On the other hand, an open system of justice demands that the public is entitled to know what occurs in our courts and proceeds on the principle that members of the public should be trusted to reach their own informed views cognisant of the presumption of innocence. With reference to recent case law both in New Zealand and overseas, the presenters will address the statutory and tortious framework, strategic considerations and the unenviable balancing act required.

Presenters: Bruce Gray QC; Rachael Reed QC

The AML/CFT Workshop 2021 (Auckland) Another year under the belt and first audits are tucked away. But it’s not the time to become complacent. A compliant programme requires ongoing review and updating and it is especially important to address any issues raised in your audit and to keep up to date with supervisor expectations and legislative changes. This year’s workshops will continue to focus on issues that practitioners have raised, as well as developments in the law and NZ regime, including: meeting obligations in relation to politically exposed persons (PEPs); drilling down to the beneficial owner; transaction and activity monitoring; updated regulations and review of legislation; FATF Mutual Evaluation and what it means for reporting entities; recent warnings and prosecutions and supervisor powers. Numbers strictly limited. Register now to avoid disappointment.

Facilitator: Fiona Hall, Barrister and Solicitor

Auckland Unitary Plan: Past, Present and Future – The guide for non-specialists In Person | Live Stream Through personal or professional experience, many non-specialist practitioners will know a little bit about the Auckland Unitary Plan but perhaps not enough to understand its impact for their clients nor how to engage with Auckland Council and work with the plan. This session will provide an update for general practitioners and non-specialists on where the AUP is at – where we’ve got to and what’s ahead.

Presenters: Phill Reid, Auckland-wide Planning Manager, Plans and Places, Chief Planning Office, Auckland Council; Corina Faesenkloet, Principal Solicitor, Legal Services – Regulatory & Enforcement, Auckland Council; Stephanie Harris, Joint Managing Partner, Glaister Ennor Chair: His Honour Judge Kirkpatrick, Principal Environment Judge

 Tue, 22 Jun 12pm – 1.30pm

Livestream CPD 1.75 hrs

 Tue, 22 Jun 4pm – 6pm

 Workshop CPD 2 hrs

 Wed, 23 Jun 2pm – 4pm

 Seminar Livestream CPD 1.5 hrs

 Thu, 24 Jun 4pm – 5.30pm

CPD Pricing Delivery Method

Member

Non-Member



Webinar (1 hour)

$80 + GST

$115 + GST

Webinar (1.25 hour)

$90 + GST

$130 + GST



Seminar (2 hour in person)

$130 + GST

$185 + GST

Seminar (2 hour live stream)

$130 + GST

$185 + GST

On Demand (1 hour recording)

$90 + GST

$130 + GST

On Demand (2 hour recording)

$145 + GST

$205 + GST

 

CPD On Demand Earn CPD hours by completing On Demand activities via your computer or smart device visit: adls.org.nz/cpd

For group bookings for webinars and seminars, contact cpd@adls.org.nz ADLS members and non-member lawyers who have registered their Airpoints™ membership with ADLS can earn Airpoints Dollars™ on eligible ADLS CPD purchases.

Terms and conditions apply.

Expert Evidence on Memory: When to Use It and Why Tuesday 29 June | Seminar | 2 CPD hours Visit adls.org.nz for more information.

9

Continued from page 5 Some examples: Asking for, and being receptive to, feedback on how work is allocated across the team Helping team members prioritise their workload, noting that meeting fatigue has been cited as one of the most glaring issues related to workload. A recent study shows the amount of time employees spent in meetings during lockdown increased by 13%, making the average workday 48 minutes longer. Other research has also shown that video calls are more demanding both physically and mentally, so Moss advises:

Using video calls sparingly and instead reverting to audio calls or simply turning off the camera

Limiting calls to 30 minutes and requiring attendance only by those who are essential to the meeting Allowing sufficient time to recover between back-to-back video calls

Trusting team members to choose when and how they complete their work while being clear on expectations

Soliciting feedback on rewards and benefits and the efficiency and effectiveness of internal processes and systems

Exploring how contributors can have more control over their performance expectations and metrics, and being cognisant of the impact that performance metrics predominantly focused on utilisation, something they may not be able to control, might have

Individual strengths and talents Celebrating these and nurturing them by actively giving employees the opportunity to do what they do best, thereby reducing the risk of employee burnout by 57%.

Talk about stress management Actively inquiring about the ways individual team members recover from stress and encouraging them to engage in these activities regularly.

Contrary to popular belief, exercise is not the preferred stress reliever for

everyone and stress does not disappear from the body by the stressful event being resolved.

In the book Burnout: Solve Your Stress Cycle, Emily and Amelia Nagoski talk about ways to complete your stress cycle with physical activity, breathing exercises, positive social interaction, laughter, affection, having “a big ol’ cry” and creative expression.

Confronting and addressing unsupportive behaviour: This might include outdated practices centred around ‘breaking in’ junior lawyers and new partners or comments about team mates who ‘can’t hack it’ or ‘don’t have what it takes’.

Unlock purpose Cultivate a culture where lawyers can find meaning and purpose in their work.

Research shows that feeling a sense of purpose helps defend against burnout at work and employees are significantly less likely to be burnt out when they can connect their work to their company’s mission or purpose.

As has been said, the antidote to exhaustion is not necessarily rest. It is ‘wholeheartedness’. So, it is worth considering whether organisational values or mission statements like ‘being the firm of choice’ resonate with employees on a personal, community or societal level. Perhaps it’s time to revisit how we describe and internalise the contributions we make as lawyers?

Sustainable legal careers are intrinsically linked with workplace well-being and taking a proactive, preventative approach to managing stress. Engaging in supportive dialogue to manage workload and concerns, tapping into strengths and unlocking purpose are key to creating a continuously productive working environment.

Now based in Auckland, Katie Gray is a former banking and finance lawyer and partner at global firm Herbert Smith Freehills. She is the founder of Principals of Practice, an executive coaching firm that focuses on lawyers and other professionals. She will be co-presenting an ADLS workshop and webinar

Remedies: Expectation Damages & Damages for Misrepresentations Tuesday 15 June | 4.00pm - 5.30pm This seminar discusses expectation damages, and damages for claims of misrepresentation under the Fair Trading Act, the Contract and Commercial Law Act and in tort.

T 09 303 5278

10

E cpd@adls.org.nz

W adls.org.nz/cpd

LawNews Issue 16 | 28 May 2021

Offices Available Following some barristers leaving as a result of Covid, we have four offices available for rent, of varying sizes.

The Chambers share a refurbished floor (with separate areas) with Hussey & Co., a boutique forensic and general accounting firm. There are shared meeting rooms (a formal boardroom and a less formal meeting room), and communal entrance and client waiting area.

Telephones, internet connection, printing and secretarial services also available and some furniture available.

Cost depends on office size and ranges from $150 – $300 per week plus gst. No long-term commitment required.

Photographs of the Chambers can be viewed at www.hco.co.nz/gallery.

Contact: Shane Hussey for further details, Shane@hco.co.nz 09 300 5481

WILL INQUIRIES LawNews The no-hassle way to source missing wills for $80.50 (GST Included) Email to: reception@adls.org.nz Post to: ADLS PO Box 58, Shortland Street, DX CP24001, Auckland 1140 Fax to: (09) 309 3726 For enquiries phone: (09) 303 5270

Wills 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.

NEW TITLE: Land Registration and Title

Security in the Digital Age –

New Horizons for Torrens (Routledge, 2020)

EDITORS: David Grinlinton and Rod Thomas This book examines the modernisation and automation of Torrens land registration, with a particular focus on the reforms implemented by the New Zealand Land Transfer Act 2017. It includes contributions from leading experts – including practitioners, judges and academics from New Zealand, Australia and other relevant jurisdictions. In reviewing the book, Dr Don McMorland has written: “this is a valuable book of almost 400 pages which should be in every law library of the courts, the law society and the universities, and in the libraries of every set of barristers’ chambers” ADLS members price $294.26 Price: Hardback $376.80; E-book$66.59 More information here

Chancery Chambers offices for rent

David Cedric BEARD, Late of 24 Mowbray Road, Waharoa, Waikato, single, sickness beneficiary, aged 55 (died 17’05’20) Alexander John Nicholls BRADDOCK, Late of Haast Beach, Haast, aged 29 (died 19’03’21) Yu-Mei HSIEH, Late of 34 Ranfurly Road, Alfriston, Auckland, housewife, aged 63 (died on or about 11’01’21) Ivan LIPOVSEK, Late of Croatia, aged 78 (died 10’03’21) Mary-Beth MARTIN, Late of 39 Tohunga Crescent, Parnell, Auckland, retired teacher, aged 77 (died 28’11’20) Louise Christine McDONALD, Late of Christchurch, aged 63 (died 28’04’21) David William PROBERT, Late of 1 Kennedy Avenue, Forrest Hill, Auckland, aged 88 (died 14’04’21) Ripeka YOUNG (nee HEKE), Late of 2 Choice Avenue, Henderson, Auckland, widow, aged 71 (died 09’10’85)

Two offices are available in the heritage Chancery Chambers building on the corner of Chancery and O’Connell Streets.

There is a 33.71sqm office on the third floor of the O’Connell Street side of building and a 15.75sqm office on the fifth floor of the Chancery Street side of building.

Opex includes reception to greet clients/receive couriers, kitchen facilities, copy room access and use of shared meeting rooms.

Please contact Krystal Marshall on (09) 303 5277 or krystal.marshall@adls.org.nz for more information

11

Bookstore A convenient, one-stop-shop for all your legal resources ADLS members, including student members, receive a 10% discount

Visit the online bookstore:

adls.org.nz/bookstore Phone:

09 303 5270 Email:

thestore@adls.org.nz

The ADLS Bookstore couriers nationwide Or, browse in person at: The ADLS Bookstore Ground Floor Chancery Chambers 2 Chancery Street Auckland CBD

Triple your rewards

During June, earn triple the standard Airpoints Dollars™ on all eligible purchases with ADLS. Members can earn 12 Airpoints Dollars, and non-member lawyers can earn 6 Airpoints Dollars per $100 spent on purchases during the month of June.

Sumner, Christchurch

12

Visit

If you have not yet registered your Airpoints™ details with us or want to know more about the offer:

Phone

Terms and conditions apply, visit adls.org.nz/airpoints for full details.

09 306 3993

adls.org.nz/airpoints