LawNews - Issue 19

NEWS Jun 18, 2021 Issue 19

Inside ■ TRUST LAW

What Addleman means for trustees P03

■ ACCESS TO JUSTICE

Does legal culture need to change?

P05

What every trustee needs to know

adls.org.nz

ABOUT DISCLOSURE

Contents 03

Addleman: a difficult decision for trustees and administrators

TRUST LAW/LEGAL PROFESSIONAL PRIVILEGE

05 RULES COMMITTEE CIVIL LITIGATION

Cheaper justice means a change in legal culture

06 LEGAL PRACTICE LAWYERS’ FEES

How should lawyers charge?

08 ADLS COMMITTEES

New tax rules for mixed-asset deals

05 10 ADLS EVENTS

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

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 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.

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12 FEATURED CPD

13 CPD IN BRIEF

Justice Francis Cooke: The barriers to accessing civil justice are deeply entrenched and go beyond rule-making

©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.

Cover: Artem Cherednik / Getty Images

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Jun 18 2021 Issue 19

TRUST LAW/LEGAL PROFESSIONAL PRIVILEGE

Why Addleman is such a difficult

decision

Anthony Grant

While secrecy of this nature may not reflect well on trustees, it would be unrealistic to think they will want to create a paper trail that will assist people to sue them

One of the realities of trusteeship these days is that many beneficiaries who don’t get what they want are willing to make unreasonable threats and claims against trustees in ways that would not have happened a few years ago

When a trustee receives a letter from a beneficiary, claiming the trustee has acted in breach of trust, what should the trustee do?

Typically, the trustee will consult a lawyer and ask if the criticisms are justified and, if so, ask what the trustee should do about it.

If the lawyer advises the trustee that 2021), saying that even if the trustee there is substance to the beneficiary’s pays for the advice with his or her own complaint, the trustee will want to withhold the advice from the beneficiary money, “This may not work ... and advice paid for by a trustee may nevertheless since the beneficiary may use the letter be trustee information” as evidence to remove which must be disclosed the trustee or to make to beneficiaries. a financial claim against This important him or her or to publicise statement appears in – of the trustee’s conduct and all places – a footnote in harm his or her reputation. the judgment that Justice Assume the trustee William Young gave on is a solicitor acting as a behalf of the five members professional trustee. Can Anthony Grant of the court. It is footnote the solicitor withhold the 33 and I will refer to it in legal advice from the more detail shortly. beneficiary?

In the Addleman case, the Supreme I have advised trustees in the past Court was not given copies of the that if they arrange for the trust to pay advice the trustee had obtained, and for legal advice in those circumstances, that the plaintiff beneficiary wanted to the beneficiary will almost certainly be see. Instead, the court asked counsel allowed to see it since the beneficiaries for the trustee to summarise the nature are the beneficial owners of the trust’s resources and are entitled to know what of the advice it wished to withhold from the beneficiary. has been bought with ‘their’ money.

The summary said the documents The Supreme Court has gone were “advice/opinions obtained … by further than this in Lambie Trustee Ltd the trustee … ranging from matters of v Addleman [2021] NZSC 54 (1 June

trust administration to advice about the trustee’s discretionary powers and dealings with the beneficiaries”.

Disclosure required The Supreme Court has held that all the documents in those categories must be given to the beneficiary since they contain advice “of a kind that [the trustee] would be required to hand over to a replacement trustee”.

The only category of advice the trustee has been allowed to withhold from the beneficiary is legal advice that the trustee obtained after it was served with court proceedings.

The trustee has, however, been given permission to apply to the court to withhold some of the advice that preceded the service of the legal proceedings, although whether any application it makes will succeed seems doubtful since “the courts can expect trustees not to seek advice as to how to resist litigation without having first sought advice [which must be disclosed to a beneficiary] as to the appropriate

stance to take on the point at issue”.

[92] What should trustees do about this?

ADLS has organised a webinar on the Addleman decision that will be held on 7 July, and I suspect the topic of most interest to those who attend will be what trustees can do to circumvent the court’s decision.

An obvious response to the decision will be to seek oral advice from a lawyer in the hope that there will be no record of the advice that is given. While secrecy of this nature may not reflect well on trustees, it would be unrealistic to think they will want to create a paper trail that will assist people to sue them.

It may seem dishonourable for a lawyer trustee to adopt such a course of action but one of the realities of trusteeship these days is that many beneficiaries who don’t get what they want are willing to make unreasonable threats and claims against trustees in ways that would not have happened a few years ago.

I referred earlier to footnote 33 of Justice William Young’s judgment, where he said legal advice that a trustee pays for with his/her own money “may be trustee information” that must be disclosed to beneficiaries. He went on to say that “personal information that is not privileged may have to be produced in discovery”.

Continued on page 04 03

Continued from page 03

As I understand it, the court is saying that if trustees pay for legal advice with their own money, the beneficiaries may be entitled to have copies of it except to the extent that the advice is subject to legal professional privilege or some other privilege.

The difficulty The hard part about the Supreme Court’s decision is this. A trustee who receives a threatening letter will want to know whether the complaint is justified.

If the trustee pays for the advice with his or her own money, the advice would traditionally be the subject of legal professional privilege.

But the Supreme Court appears to say that the trustee’s role in the trust may require him or her to obtain the advice for the benefit of the

I believe the Addleman decision may not be confined to trustees but will also apply to executors [as] the duties of an administrator are to be deemed to be express trusts for the purposes of the Trusts Act

beneficiaries – with the consequence that the advice may not be the subject of legal professional privilege.

The relevant words in the judgment are “the courts can expect trustees not to seek advice as to how to resist litigation without first having sought advice... as to the appropriate stance to take on the point at issue”.

The need to maintain legal professional privilege lies at the heart of all mature legal systems so people can get advice without having to fear that

the advice will be publicised to their detriment.

If a trustee is accused of acting in breach of trust and if the accusation has substance, the act of seeking advice ‘as to the appropriate stance to take on the point at issue’ may reveal the trustee’s vulnerability. It remains to be seen if advice on ‘the appropriate stance to take on the point at issue’ may not be protected by legal professional privilege.

I believe the Addleman decision may not be confined to trustees but

will also apply to executors since Part 1 of Schedule 4 to the Trusts Act 2019 inserts a new provision into the Administration Act 1969 (it’s s 4B). This says the duties of an administrator are to be deemed to be express trusts for the purposes of the Trusts Act, and the Trusts Act applies to those trusts.

The possibility that advice on the personal liability of trustees and administrators may not attract legal professional privilege would be startling.

As Lord Brougham once said: “If [the privilege] did not exist… a man wouldn’t venture to consult any skilful person or would only dare to tell his counsel half his case.” ■

■ Anthony Grant is an Auckland barrister specialising in trusts and estates ■ The webinar on 7 July will be chaired by Vicki Ammundsen

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Jun 18 2021 Issue 19

RULES COMMITTEE/CIVIL LITIGATION

How civil litigation needs to change There is a need for greater proportionality in the way we conduct litigation. It needs to be done much more efficiently if it’s going to be conducted properly as a service to the community

By Jenni McManus

have agreed that the committee should consider these broader proposals for reform.

These include legislation to increase the jurisdiction of the Disputes Tribunal, improving the District Court’s structural ability to deal with civil claims and reforming procedures in the High Court to streamline its processes.

contemplate legal representation. So, if you increase the jurisdiction of that body at the lower end, you’re allowing Big changes are needed in our legal culture if moves people to access civil justice without by the Rules Committee are to succeed in improving having to meet the costs of legal New Zealanders’ ability to use the District Court to representation resolve civil disputes.

“You can change rules as much as That’s the view of Justice Francis Cooke, chairman you like but it all ultimately depends of the Rules Committee, who said earlier this month on the way people apply them. There that the committee believed the barriers to accessing does need to be a change in legal civil justice were “deeply entrenched” and went culture, not only in terms of what may beyond mere rule-making.

Justice Francis Cooke Culture is critical be earned from conducting litigation Justice Cooke also referred to the “maximalist” as a skill set that you charge for but culture among litigators, many of whom leave no stone In a recent interview with LawNews, unturned in their approach to litigation rather than Justice Cooke said culture was probably at the root of also in the way it is done, when every single point is taken, every single document is sought to be obtained taking advantage of the streamlined processes already the access-to-justice problem. by way of discovery and every conceivable point is available in the District Court to make justice less This includes the high, and increasing, cost of legal argued. costly for their clients. fees. “It’s certainly very much part of it,” he said. “One “There is a need for greater proportionality in the After consulting with the of the submitters, Bridgette way we conduct litigation …It needs to be done much legal profession and community You can change rules Toy-Cronin, identified lawyers’ more efficiently if it’s going to be conducted properly groups last year, the Rules charge-out rates as increasing as much as you like as a service to the community.”

Committee now has a second disproportionately to the rise in consultation paper in the incomes in other sectors. but it all ultimately Judges’ role market, with submissions due “So, I think it’s very much depends on the way by 2 July. part of it in that civil litigation Judges, also, will need to step up to the plate. A people apply them.

While the committee initially is outside the economic reach “wee bit” of cultural change may be in store for them There does need to focused on how the rules for of most New Zealanders. And as well, including a more proactive and hands-on conducting civil trials might be there appears to have been an approach to the way litigation is managed, Justice be a change in legal changed in the District Court increase in charge-out rates Cooke says. culture and High Court, the second and earnings from litigation “Part of that is reflected in the proposal that consultation document asks for notwithstanding that things we have a much greater emphasis on the issues input on much broader themes have been tightening. So that’s conference at the commencement of proceedings and issues which submitters indicated they wanted one of the very significant contributors to people not in the High Court. [Here] the expectation would be the committee to address. These go beyond simply being able to afford to access civil litigation. that the parties and the judge would more thoroughly amending the court rules and some stray into areas of “It’s why one of [our] key proposals is to extend the policy which the government will need to address. But jurisdiction of the Disputes Tribunal to [handle higher- Continued on page 09 both the Attorney-General and the Justice Minister value] claims because that’s the tribunal that doesn’t 05

LEGAL PRACTICE/LAWYERS’ FEES

Fixed fees versus timesheets: how should lawyers charge?

If all you do is charge in six-minute blocks, where’s the time pressure to get the job done?

By Rod Vaughan & Jenni McManus A couple of weeks after New Zealand was plunged into lockdown in March last year, LawNews published an interview with entrepreneur Andrew Barnes, the founder of Perpetual Guardian (NZ’s biggest corporate trustee) and a high-profile proponent of the four-day working week.

Amongst predictions that lockdown would permanently and fundamentally change the way New Zealanders did their jobs, Barnes had a message for the legal profession: “This is a huge opportunity to rethink how [law firms] operate, when they operate, in Andrew Barnes which form they operate and also whether they really need those expensive offices and infrastructure that been specifically identified by many as a significant doesn’t generate any revenue and costs money.” barrier to access to justice. Legal leaders such as the The key question to be asked was, “What does Chief Justice and, on page 5 of this week’s LawNews, productivity look like in my organisation?” Defining Justice Francis Cooke, chairman of the Rules productivity was not necessarily top-of-mind for Committee, are among lawyers, Barnes said, but those who have spoken out. the six-minute time slot In the civil courts some wasn’t the most efficient or people use litigation as A weapon effective way of achieving a business strategy or a it.

Interviewed again late last “For far-seeing leaders month, Barnes described weapon. If you’re rich, in the law, if they really take the law as “the last, great you can line up QCs and the time and sit down and unreformed profession the person fighting that think about this, [lockdown] there is”. Justice is now so is a fantastic opportunity expensive that it is “in thedoesn’t get a chance to rethink how the law is ory” being delivered most delivered, how we charge often to those who could for it and when and where afford it, rather than those it is supplied,” he said. “If all you do is charge in sixwho need or deserve it, he said. minute blocks, where’s the time pressure to get the job “We see this most often in the civil courts, where done?” some people use litigation as a business strategy or a More than a year later, has anything changed? It weapon,” he says. “The wealthier person can use the seems not. In fact, high – and rising – legal fees have courts as a tool while their opponent incurs costs and 06

can spend years fighting. The exception is the criminal court, where legal aid is provided so both prosecution and defence in a criminal trial can be funded by the government. But with civil actions, if you’re rich you can line up QCs and the person fighting that doesn’t get a chance.”

Professor Mark Henaghan, from the University of Auckland’s law school, says the growing number of litigants in person is evidence that people can’t afford to use lawyers.

“There does not seem to be anything done within the legal profession to address the high hourly rates of a large proportion of lawyers,” he says. “The Commerce Act 1986 requires competition between lawyers on what they charge on the assumption that it will benefit the community. It’s not working too well in keeping costs down… The denial of access to justice means many are not able to get what they are entitled to, which is a failure of the system.

“In the civil system, the cost of justice is beyond a large number of New Zealanders. Legal aid is only a loan and has to be paid back.

The low rates of pay for lawyers doing legal aid compared with what can be charged privately mean that it’s difficult to find the overworked lawyers who are available for legal aid.”

Business struggles It’s not only individuals who’re finding the costs of litigation too high. Steph Dyhrberg, a partner at Dyhrberg Drayton Employment Law, says small businesses and employee claimants, in particular, struggle to afford representation.

“Undoubtedly those who suffer from any disadvantage or are vulnerable do not get equal access to justice,” she says. “Restrictions on legal aid leave some people in the middle, in no man’s land: too well-off to get legal aid, not rich enough for a decent lawyer.

“In employment law, the lack of affordable lawyers, the low levels of unionisation and poor employment practices combine to make employees walk away from legitimate claims.

“Larger employers in particular use that power and resource imbalance to shut down claims. Small businesses and employees will reach settlements that don’t necessarily reflect the merits of their legal position. People turn to no win-no fee advocates, some of whom do not provide a good service.”

Continued on page 07

Jun 18 2021 Issue 19

Continued from page 06

Would a fixed fee, or project billing, help keep costs down?

Barnes says he’s not sure how that might work with litigation. “I certainly do not think billable hours are about maximising time spent and money made. That is too simplistic.

“The pros [of fixed-fee billing] are that you can set parameters for costs at the outset and the cons are that you usually cannot know, within the bounds of the system we currently have, where the end point of litigation will be.

dramatically and sometimes without warning.”

Jim Farmer QC says he’s not aware of any move away from billable hours to fixed prices. Clients ask only about his hourly rate.

“I am quite often asked for my estimate of my fees for a trial of known duration and for preparation 'for budget purposes' but never for a fixed fee. The other side of that coin is that if the case settles shortly before trial, the assumption is that no further fee will be charged or be payable. This raises the topic of cancellation fees, which are starting to become a topic.”

Steph Dyhrberg

Research needed “If we are going to address billable hours as an issue, we have to find a method of subsidy and rethink how we provide justice in areas where going to trial should not be the answer.

For instance, set up a properly constructed small claims court where individuals represent themselves, and/or a binding arbitration or mediation service where parties cannot go to trial unless they have first participated in this process.

“Then, if parties still choose to go to court, the courts have to be in the position of awarding true costs of litigation back to the winner, to help limit the use of litigation as a business strategy. The beauty is that parties then have an option to keep fighting or to return to the negotiating table.”

Dyhrberg is not a fan of fixed fees. “Our work is so variable I’m not sure it would be sustainable or fair,” she says. “We always take time recorded as just a starting point and have to consider all factors and set a fair fee. We discount for charities, small business and employee clients.”

She says there is a “real reluctance” among lawyers to change to fixed fees. “One reason is inertia: things have always been done this way, we have more work than we can handle, this works for us so why change?

“Another is apprehension of losing out on fixed pricing especially for litigation as the time required can increase

Henaghan wants to see research done on what lawyers charge on average and how this compares with what people on average incomes can afford.

“A fixed price would help with people knowing in advance what the cost will be,” he says. “An hourly rate can blow out costs very quickly for most people and the drawn-out time litigation takes is definitely a big contributor to costs.

“There have been attempts to simplify the rules to speed up the process but they have failed. For example, the Property Relationships Act says matters under that Act should be resolved as inexpensively, simply and speedily as possible (s 1N(d) of the Property (Relationships) Act 1976). I know of relationship property litigants who have spent $2 million on legal fees.

“There is always the possibility and incentive with billable hours of keeping the hours going to bring in income. Billable hours keeps the control in the hands of lawyers both in terms of their employees and in terms of their clients.

According to Farmer, billable hours were sold to clients in the 1970s and clients bought into it. “I think there is a hope

Continued on page 14

Mark Henaghan

Jim Farmer QC

SPECIAL SECTION: LEGAL RECRUITMENT

Who’s hot and who’s not?

In a special section to be published on 25 June, LawNews runs the rule over current trends in legal recruiting.

ADVERTISING INQUIRIES: Please contact Darrell Denney at: Darrell.Denney@adls.org.nz or call him on 021 936 858

Photo: Wera Rodsawang / Getty Images

How has Covid-19, and the return of ex-pats over the past 12 month, affected the legal recruitment market? Has the pandemic changed the way firms and recruiters search for staff? And what sort of lawyers are in high demand?

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ADLS COMMITTEES

New tax rules for mixed-asset deals Absent an agreed PPA, a vendor can unilaterally determine a PPA that may significantly impact the purchaser’s tax position

By Nick Bland & Barney Cumberland

purchaser do not adopt, at the expense of the tax base, different PPAs for the assets included in the Important purchase price allocation (PPA) income tax transaction. rules come into effect from 1 Under the new rules, if July 2021. PPA can significantly the parties agree a PPA in The new rules impact a party’s tax position writing, they must determine will be relevant to so advisers must be aware of their income tax positions in the changes and ensure their accordance with that PPA. The any mixed-asset clients’ interests are protected. agreed PPA can be overruled sale and purchase by the commissioner only if she New PPA addenda to the transaction involving considers it does not reflect ADLS/REINZ standard form classes of asset that the relative market value of the real estate and business sale assets. and purchase agreement will have different tax However, if there is no soon be available for affected treatments agreed PPA for a mixed asset transactions. transaction - and the residential land and lower value transaction Affected transactions exclusions noted above do not The new PPA income tax rules apply - the new rules allocate the right to determine will apply to agreements entered into (conditional or the PPA for the transaction as follows: unconditional) on or after 1 July 2021.

The new rules will be relevant to any mixed asset ■ Subject to certain constraints, the vendor generally sale and purchase transaction involving classes of has the first, unilateral right to determine a PPA within three months of settlement. That PPA will asset that have different tax treatments. This will include business (asset) sales, commercial property bind the purchaser. sales, forestry and farm sales and certain residential ■ If the vendor does not have or exercise that right, property sales. the purchaser has a unilateral right to determine However, the harshest aspects of the new rules a PPA within six months of settlement. That PPA (discussed below) do not apply to the following: will bind the vendor.

■ Transactions limited to residential land and ■ If the parties do not exercise those rights, the chattels if the total consideration is less than commissioner has the right to determine a PPA $7.5million; and that will bind both vendor and purchaser.

■ Other, lower-value transactions where the total Buyers, in particular, must be aware of the new statuconsideration is less than $1m. tory default position: absent an agreed PPA, a vendor In some situations, PPA will not be an issue for one can unilaterally determine a PPA that may significantly or both parties - eg, because all assets are revenue impact the purchaser’s tax position – for example, by account assets for a party or because a party is giving the purchaser a lower-than-expected cost base tax-exempt. for depreciable property or revenue account assets.

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■ An agreed PPA can be recorded in a new schedule. The schedule is flexible so the PPA can be tailored for the relevant transaction.

■ If there is no agreed PPA when the agreement is entered into, and the new PPA income tax rules would skew matters in favour of the vendor, the addendum provisions prescribe a balanced process for a PPA to be agreed post-signing, with provision for expert determination if need be.

Addenda will be available for the ADLS/REINZ real estate standard form and tender ASPs and the business ASPs but are not considered practicable for the real estate auction and mortgagee sale documents.

Buyers must be aware that the vendor by auction or the mortgagor in those situations may have a statutory right to unilaterally determine a PPA that binds the purchaser.

Where PPA is potentially a material issue, transacting parties should get professional tax advice before entering into a transaction. ■ A sub-committee of the ADLS Documents & Precedents Committee has received expert advice from Simpson Grierson’s tax team to prepare addenda to the ADLS/ REINZ Agreement for Sale & Purchase of Real Estate, its derivative tender agreement and the ADLS/REINZ Agreement for Sale & Purchase of a Business. These addenda will be released for use on 1 July 2021 and sample documents may be made available before then. The provisions of these addenda will be incorporated into the next revised edition of each form.

Buyer beware

Addenda available

ADLS acknowledges and thanks the ADLS Documents & Precedents sub-committee and, in particular, its convenor Tim Jones for their support and contribution. ADLS also extends its appreciation to Barney Cumberland and Nick Bland of Simpson Grierson for their expert advice and to the lead drafters (being, for the real estate-related agreements, Thomas Gibbons and, for the business

The new rules are focused on ensuring vendor and

The two key features of the new PPA addenda are:

agreement, Elise Markwick) ■

Jun 18 2021 Issue 19

Continued from page 05

review the case and discuss the issues and what the parties would need to do to establish their positions.

“For that reason, judges will need to be prepared to discuss the issues in the case and the merits of those issues at an earlier stage and therefore be much more active in dealing with litigation.

“That will involve a cultural change from their perspective too. It’s not simply a matter of sitting back and waiting for parties to present their case and impartially reaching a judgment. There needs to be more hands-on management in terms of making sure that the litigation is being conducted in a manner consistent with the principles of proportionality and access to justice.”

For all this to happen more training might be needed. “I know some judges will be concerned that they might be expected to express views about the merits of claims too early in the process and that is a legitimate concern,” Justice Cooke says. “And there will be some who will be reluctant to give such views too early, but it is all a matter of judgment and experience, and training may well be part of that skill-set should the proposals ultimately prevail after the consultation process.”

And that, of course, is still a big ‘if’. The committee is keen for as many lawyers and members of the community as possible to give feedback on the second consultation paper. It will then produce a report for the government, hopefully before the end of this year.

Submissions needed “It really is important to understand that these proposals are out there to be consulted on,” Justice Cooke says. These are very different proposals from those developed for the first round of consultation and are a direct response from the committee to the feedback received from that.

“People shouldn’t assume that they are going to be implemented without change or even implemented at all. That’s the very purpose of consultation and the previous consultation has led to significant changes to what has been contemplated.

“The original proposals were literally that – our initial thoughts on what could be done to make it better. Although we didn’t have a huge number of submissions, there was a reasonable number and what was striking about them was their quality. People had taken real time and effort to explain their views on the problems that existed with civil justice generally and you could find common themes within those submissions… The new proposals are an attempt to pick up the common themes and develop proposals arising from them.”

At the end of the day, it’s about breathing new life into civil litigation in the District Court and expand its work beyond the current trend to use it as a debt-collection agency.

“I think there is a view that the District Court has lost its civil jurisdiction capacity,” Justice Cooke says. “It doesn’t really have as much of a reputation for dealing with standard civil litigation as it used to.

“So, that’s behind our proposals to try and re-energise that jurisdiction, first by appointing a new principal civil judge for the civil jurisdiction and then by appointing deputy judges or recorders to act as part-time judges who will deal with civil claims. ..It’s all part of getting people back to the District Court to resolve their civil disputes.” ■

Experienced Property/Commercial Solicitor We are looking for a successor to join our Commercial and Property team with an opportunity of short to medium-term partnership prospects where a following is not required.

We have very senior members of our team looking to retire and who would love to hand over their well-established client base. We have been providing legal services in the Gisborne district for more than a century and we have been acting for families, and particularly farmers, for generations. We also complete work in the forestry sector, act for SMEs and for individuals.

The role requires a commercial and property lawyer who can demonstrate leadership skills and will suit a senior level lawyer looking to join a partnership, or an intermediate to senior level lawyer who has their eye on partnership.

In addition to leadership skills, building long-term client relationships will also need to form part of your key strengths to be successful in this role. The work will involve a broad range of commercial and property matters as well as other matters like trusts and estates that usually tie in with a commercial and property practice in the regions.

We also have a well-established litigation practice to hand contentious matters to. We have plenty of support staff and modern technology, ensuring you will not get tied up in junior-level work and allowing you to focus on more complex and juicy work.

For someone who might still need a bit of guidance, there will be an experienced partner you can turn to who will support you in your path to become a partner.

We value work/life balance and although we are proud to offer a superb service to our clients, we are not just all about producing fees. You will certainly have the time to enjoy the relaxed Gisborne lifestyle with its sun, surf and social life in the heart of the wine country.

Please forward your letter and CV to Amanda Matthews; amanda.m@woodward-chrisp.co.nz

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Events ADLS EVENTS

Newmarket lawyers’ lunch On Wednesday 9 June Newmarket practitioners enjoyed lunch at the New York Grill on Westfield’s Rooftop.

Thank you to event sponsor MAS Arthur Loo QSM, Jennifer Wickes, Anne Hall and Nick Hodson

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Kate Mimms and Dalia Hamza

Mason Lockhart, Colin Lucas and Renee Jensen

Nicola Airey from sponsor MAS, Richard Gardner and Rae Nield

Michelle Bowen, William Fussey, Isabelle McKay and Hayley Marquart

Helen Chung and Isabelle McKay

John Barrat-Boyes, Colin McKay, ADLS council member Andrew Skinner and Andrew Schnauer

Jun 18 2021 Issue 19

Featured events

Connecting New Zealand Lawyers

Wellington Breakfast with the Chief Justice Dame Helen Winkelmann Thursday 8 July 2021, 7.15am – 8.30am InterContinental, 2 Grey Street, Wellington Learn More

Christchurch Breakfast with the Chief Justice Dame Helen Winkelmann Thursday 19 August 2021, 7.15am – 8.30am The George, 50 Park Terrace, Christchurch Learn More

Retirement Dinner for Dr Bill Hodge Thursday 29 July 2021, 6pm – 10pm The Northern Club, 19 Princes Street, Auckland Learn More

Northland Lawyers’ Lunch

Upcoming June

Wednesday 23 | Northland Lawyers’ Lunch, Whangarei Wednesday 30 | New Lynn Lawyers’ Lunch, Auckland

July

Thursday 8 | Wellington breakfast with the Chief Justice Dame Helen Winkelmann Thursday 29 | ADLS retirement dinner for Dr Bill Hodge, Auckland

August

Monday 9 | ADLS Newly Suited & LAWSOC Buddy Evening, Christchurch Thursday 19 | Christchurch breakfast with the Chief Justice Dame Helen Winkelmann

Soon to be added:

August | ADLS Newly Suited Meet the QCs Evening, Auckland August | Hamilton Sundowner August | Ponsonby Lawyers’ Lunch, Auckland September | Rotorua Lawyers’ Lunch September | Albany Lawyers’ Lunch, Auckland September | Auckland Central Lawyers’ Lunch

Wednesday 23 June 2021, 12.30pm – 2pm The Quay, 31 Quayside, Whangarei, Northland Proudly sponsored by MAS Learn More

Book Here

events@adls.org.nz

adls.org.nz

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adls.org.nz/cpd

cpd@adls.org.nz

09 303 5278

FEATURED CPD

Why use experts for evidence on memory?

Seminar CPD 2 hrs Tue, 29 Jun 4.30pm – 6.45pm Presenters Rob Harrison, barrister, Inangahua Chambers and Dr Rachel Zajac, expert witness and Professor of Psychology, University of Otago | Te Whare Wānanga o Otāgo

MEMORY EXPERT EVIDENCE

Cases can turn on memory, so understanding the science and how it works, and when to engage an expert are vital. This seminar, aimed at those practising in criminal law, will help practitioners to understand this complex and key area of the law.

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IN PERSON

FINAL NOTICE

The AML/CFT Workshop 2021 (Auckland)

Workshop CPD 2 hrs Wed, 23 Jun, 2pm – 4pm Facilitator Fiona Hall, barrister and solicitor

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Another year under the belt and first audits are tucked away. But compliance requires ongoing review: there’s no room for complacency. In particular, you must address any issues raised in your audit and keep up-to-date with supervisor expectations and legislative changes.

ANTI-MONEY LAUNDERING COMPLIANCE COMPLACENCY

FIND OUT MORE

FINAL NOTICE

PRIVACY REPUTATION FAIR TRIAL

Name suppression Seminar CPD 1.75 hrs Tue, 22 Jun 4pm – 6pm Presenters Bruce Gray QC and Rachael Reed QC

Name suppression: privacy, reputation and fair trial Referencing recent case law in New Zealand and overseas, the presenters will address the statutory and tortious framework, strategic considerations and the unenviable balancing act required. Designed for those practising in criminal law and civil litigation.

IN PERSON 12

LIVE STREAM

Jun 18 2021 Issue 19

CPD IN BRIEF FINAL NOTICE

Law practice & technology

Webinar CPD 1.5 hrs Tue, 22 Jun, 12pm – 1.30pm Presenter Matt Bartlett, research fellow, Faculty of Law, University of Auckland and New Zealand Centre for ICT Law

How technology will change legal practice A major consequence of Covid-19 has been the forced adoption of technology by legal professionals, firms and the courts. Across the sector, technology is now ubiquitous and it’s time for lawyers to take stock. Learn about the trends in law and technology in overseas jurisdictions and analyse the potential implications for New Zealand.

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FINAL NOTICE

Auckland Unitary Plan

Seminar CPD 1.5 hrs Thu, 24 Jun 4pm – 5.30pm Presenters Phill Reid, Corina Faesenkloet and Stephanie Harris

The Auckland Unitary Plan is designed to help Auckland meet its economic and housing needs. This seminar will help you understand its impact for your clients and how to engage with Auckland Council and work with the plan. It will update general practitioners and non-specialists on where the plan is at and what’s ahead.

Chair His Honour Judge Kirkpatrick, Principal Environment Judge IN PERSON

Conducting effective client interviews

Workshop CPD 3 hrs Thu, 1 Jul 2pm – 5.15pm Presenters/Facilitators Dr Stephanie Mead, barrister sole, and instructor, Institute of Professional Legal Studies and Seung Youn, lawyer, Public Defence Service

LIVE STREAM

Most lawyer-client relationships begin with an interview. Among other things, it is an opportunity to identify who the client is and to understand the nature of the services required. Mistakes made during the initial interview can have a lasting impact and even hinder a lawyer’s ability to provide effective representation.

Limited spaces available – register now.

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Remedies

Seminar & Livestream CPD 1.5 hrs Tue, 6 Jul 4pm – 5.30pm Presenters Matthew Harris, partner, Gilbert Walker and Daisy Williams, barrister, Shortland Chambers

Remedies: breach of mandate & licence fee damages This seminar discusses remedies for agents’ breach of mandate and licence fee damages. It is particularly relevant for contract and commercial lawyers, civil litigators, intellectual property practitioners, trusts lawyers and in-house lawyers for banks and other organisations that handle assets for customers and other third-parties.

IN PERSON

LIVE STREAM

Business Evolution in a Changing World Thursday 29 July | Workshop | 2 CPD hours Visit adls.org.nz for more information.

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Continued from Page 07

But Barnes does not believe the system is being exploited. “I believe lawyers share their clients’ desire to resolve their cases in a timely way, but we do not have the method to make the process as inexpensive and straightforward as it could be. It is not the fault on the client’s part that the case will settle or not take so long and of lawyers that the system is set up this way and I do not think the therefore the total fees will be less than if there had been a fixed fee billable hours model is being exploited.” agreed,” he says.

Dyhrberg says schemes are afoot to provide more affordable Barnes believes the problem is not with lawyers, but with ‘the legal assistance. Many lawyers already do “a great deal” of pro bono system’ within which options are constrained. or heavily discounted work, she says, along with mentoring, Friends’ “We have a process that requires things to be done a certain way, which is often expensive and not conducive to the consistent delivery Panel assistance, and by working with Community Law Centres and the Citizen’s Advice Bureau and by sitting, or advising for free, on of justice on the civil or commercial side. Why is that necessary? charitable boards and committees.

“I think for any professional service that relies on the investment “We collectively give a huge amount of our time to our of time, a billable hour mechanism is quite sensible. In my experience, communities. Most of it is not common knowledge. Many critics of when it comes to timesheets, most service providers will cut back to lawyers’ fees don’t seem to be aware of this.” make the numbers more palatable, not inflate them.”

Henaghan agrees that there are efforts to encourage more pro Timesheet padding bono work.

“This used to be common years ago but is not so common now.

But is there is an inherent conflict between the client's desire to Some lawyers do more than their fair share of pro bono work and if it quickly resolve his or her case and a law firm's interest in maximising was more widely spread it would make the law much more accessible. time spent and money made as well as meeting billing targets?

“Law, like other professions, has moved from primarily being There can be, Dhyrberg says. “I do sometimes wonder whether a profession that served the community to being a business. a particular strategy and approach taken by some counsel is about Community Law Centres do a fantastic job on a shoestring to provide racking up the hours more than achieving the best outcome for the initial free legal advice to the public. There still needs to be a major client. look at the costs of lawyers in the civil system.”

“We actively discourage timesheet padding or spinning work Could other jurisdictions teach New out in our firm by not setting hour or fees Zealand a thing or two about access to budgets. We encourage collaboration and One reason is inertia: justice? “Ultimately, we can look at other discourage competition or undue focus on things have always been jurisdictions for a model such as France, billable hours.” which uses the inquisitorial rather than Barnes says the central conflict is around done this way, we have adversarial system. how the courts are being used in civil and more work than we can “Parties” supply information directly to commercial cases, when there are options handle, this works for us the investigating judge, which potentially that would cost less and work better for cuts down the intervention of professionals resolving disputes. so why change? and associated costs.

“For instance, some people will be in “Certainly in New Zealand it would litigation for years, with weeks in court be more affordable for two parties with a because of dispute over the interpretation civil or commercial dispute to gather the of documents or emails. I have seen this information according to the rules of the court and present their case happen. without the intervention of a barrister to represent them. There is also “If you set up an alternative system of mediation or arbitration of these types of cases, where a sensible arbitrator understands the nub the opportunity to use technology to better deliver just outcomes.

With more government investment in AI and machine learning, there of the issue, the process would be so much cheaper and can lay the can be support with presenting documents correctly. It is about more ground rules on whether you should litigate. than the price of lawyers. If we want to give better access to justice, “That mediator will have a view that the interpretation is likely to we need to make the whole process simpler and easier.” go a particular way so the parties are not just relying on the people Automation is probably the way things will get more efficient and they are paying to litigate, who have a vested interest in litigating.

“Obligating people to go through timely, organised steps like these cheaper, Dyhrberg says.

“Smaller specialist firms tend to keep their overheads lower, don’t that prevent litigation would be more likely to consistently deliver waste money on harbour views and flash coffee machines and can justice across the board, regardless of means, in my view.” deliver a service that is as good or better than large full service firms, Are lawyers simply padding their timesheets and exploiting their keeping fees more affordable. clients? “I have seen this occur and it’s dishonest,” Dyhrberg says.

“In litigation, big corporates thinking you have to brief a QC and Henaghan says lawyers are required ethically to act in the best possible interests of their clients. “Padding out a timesheet is a breach have an entourage of juniors to run every significant case ramps up cost and does not necessarily result in better outcomes.” ■ of ethics. It would be worth looking at disciplinary proceedings to see the degree to which lawyers are disciplined for overcharging.”

See also Briefs on page 15 14

Jun 18 2021 Issue 19

‘

Briefs

Is my lawyer a robot?

AI is set to take over the legal profession, according to a report by the UK Law Society. The report, Images of the future worlds facing the legal profession 2020-2030, says legal employment in the UK peaked in 2016 and since then job opportunities have been declining. Fulltime work for human lawyers is expected to plummet by 2050 as self-service models and tech-led alternatives emerge, according to the Law Society Gazette. During the 2023-2030 period, the report suggests the use of the partnership model will cease, compensation packages will shrink significantly, and the legal profession will be deskilled. Law Society President Stephanie Boyce says the legal profession is at a pivotal moment. “If we’ve learnt anything from 2020, it’s that the future can still catch you unawares.”

Ellis appeal The Supreme Court has dismissed the Crown’s bid to adduce new evidence as it prepares to hear the appeal on behalf of now-deceased convicted sex offender Peter Ellis. The Crown had applied for leave to introduce an affidavit by a woman who says Ellis sexually assaulted her in 1982 or 1983 when he was her babysitter.

The court said it would give its reasons in two or three weeks. On 31 July 2019, Ellis was granted leave to appeal his 16 convictions. He died on 4 September 2019. The court decided to continue with the appeal but is yet to give its reasons.

Recession averted The New Zealand economy has dodged another bullet: Stats NZ said yesterday the economy had grown by a healthy 1.6% in the March 2021 quarter, thereby Stats NZ says the avoiding a second pandemic recession. past quarter’s During the December 2020 growth has been quarter, the economy shrank broad-based, and by 1%. Stats NZ says the past quarter’s growth has been power largely broad-based, and power largely by the services by the services industries which industries which comprise about two-thirds of New Zealand’s economy. comprise about Specifically, consumers spent two-thirds of more on accommodation, eating New Zealand’s out and buying big-ticket items such as furniture. ■ economy

Solicitor – Employment We are looking for a solicitor with 1-2 years’ PQE to join our employment team Simpson Western is a leading law firm, located in Auckland’s North Shore. Based in Takapuna, your work day will be just seconds from the beach, shops and cafes, and you will be able to enjoy the great lifestyle and worklife balance which this location and our firm offer!

Our work focuses on providing exceptional client service with an emphasis on building strong client relationships.

Simpson Western encourages junior staff to be a part of our client-facing relations and you will be involved in our high-level and diverse employment matters from the outset. You will work on a range of matters – acting for small to large business clients and mid to senior level employees, many of whom have longstanding relationships with our firm. All this work is done alongside an experienced Partner, in a collaborative team environment.

Wider than the Employment team, Simpson Western has a culture and staff that exhibit high levels of integrity, demonstrate initiative and proactivity and encourage open and supportive workplace relations. Our firm appreciates the value of a workplace where staff are acknowledged, appreciated and encouraged to develop into their best version of a lawyer.

The successful candidate will have: • Minimum 1-2 years’ PQE; • Experience in Employment Law; • Strong business understanding and ability to offer practical commercially-sound solutions; • The ability to build strong relationships with a range of personal and business clients; • Motivation and diligence in your work; and • An ability to immerse yourself into a high-energy and social team.

If this sounds like you, we would love to hear from you.

Please send your CV and covering letter via email to our Office/Projects Coordinator Lisa Bycroft at lisab@simpsonwestern.co.nz.

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BARRISTERS CHAMBERS

WILL INQUIRIES

There is currently a room available in well appointed, fully serviced, central city Chambers. Vulcan Chambers was established in 1982 and occupies 2 levels in a heritage building in Vulcan Lane.

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

This would suit someone with an established practice who wishes to join a longstanding Chambers. Or someone wishing to build on their existing practice with the added opportunity to work on significant criminal trials.

Vulcan Chambers offers a collegial environment with senior members of the Criminal Bar and experienced staff.

For more information please contact Andrew Speed Phone (09) 379 8330 or email speed.law@xtra.co.nz

ADLS, PO Box 58, Shortland Street,

DX CP24001, Auckland 1140

Fax: (09) 309 3726

( 09) 303 5270

Lawyer – Minimum 5-6 Years’ PQE – Katikati

APPLEYARD Brett Ellis

MATTHEWS Vicki Anne

• Late of 252 Glenmore Road, Coatesville, Auckland • Company Director • Aged 59 / Died 22’07’20

• Late of 2 Beatty Street, Otahuhu, Auckland • Aged 58 / Died 15’07’19

Are you a lawyer with 5+ years of experience as a general practitioner seeking a partnership in the next 2 years? Do you have a background in property, relationship property, trust, commercial and estate law?

Anderson Law is a well-established small law firm specialising in property law with room for growth in other areas looking for someone to join our friendly team. Walk into a great long-term client base ready for you to get started.

If this sounds like the job for you, please forward your application by email to neil@andersonlawoffice.co.nz

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

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The ADLS Bookstore couriers nationwide.

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

Jun 18 2021 Issue 19

General Manager (Lawyer) – Auckland Community Law Centre

Chancery Chambers office for rent

Auckland Community Law Centre (ACLC), is looking for an experienced lawyer with management experience for the role of General Manager to lead the organisation through its exciting next phase.

The role requires a mix of management, practice management and technical legal practice experience together with a passion for promoting and delivering access to justice. You will have strong legal skills, including established Court and Tribunal experience, and be qualified to practice on your own account (or eligible to complete the qualification).

The General Manager of ACLC leads a team of 10 staff to deliver high quality legal services to the Tamaki Makaurau Auckland community. You will be supported by a capable senior team, and report to an experienced and skilled Board of lawyers and community reps. You will have opportunities to engage with senior members of the profession on the future of access to justice as well as the judiciary, regulators, professional associations and policy makers.

This is a rare and special opportunity: the role is varied and dynamic; the organisational culture is warm, supportive, hardworking yet family friendly. This is your opportunity to work in a role where you can really make a difference not only with the organisation but the Auckland community ACLC serves.

An office is available in the heritage Chancery Chambers building on the corner of Chancery and O’Connell Streets.

The office is 33.71sqm and is located on the third floor of the O’Connell Street side of the building.

To apply for this role receive a job description please email a short cover letter and CV to: Amelia Campbell at: recruitment@aclc.org.nz Applications close 2 July 2021.

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

Bright-line: Coming into the Light Tuesday 3 August | 12.00pm - 1.00pm This webinar will shed light on the new rules and Inland Revenue’s focus on compliance, use case studies to highlight the issues and traps, and illuminate attendees on the risks to convey to clients.

T 09 303 5278

E cpd@adls.org.nz

W adls.org.nz/cpd

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McVeagh Fleming expands its practice with a recent merger with Aucklandbased LAWWORKS McVeagh Fleming is pleased to announce that George Ireland and Tony Walker joined the Partnership on 14 June 2021. Sarah Edmondson joined as an Associate.

We are delighted to announce the appointment of our newest partner Liz Gellert.

The recent merger strengthens McVeagh Fleming’s Commercial, Property, Relationship Property, Family and Litigation practice. Lawworks is an established practice with a diverse client base. McVeagh Fleming’s expansive range of legal services will also enhance the offering to Lawworks’ client base.

Liz joins Lowndes Jordan with 17+ years’ experience in the legal sector delivering practical and strategic advice in contentious and non-contentious matters.

Liz is a commercial litigator who has acted for corporates, insurance companies, banks and finance companies. She brings high-quality analytical, technical, risk mitigation and problem-solving skills to any situation.

George, Tony and Sarah will be based at McVeagh Fleming’s Auckland City office.

Liz Gellert p 09 282 1737 m 021 643 511 e ecg@ lojo.co.nz

Trustees and Disclosure Requirements - The Implications of Addleman Wednesday 7 July | 12.00pm - 1.00pm The Supreme Court has delivered an important decision that affects all trustees who get legal advice on what they should do when they receive requests by beneficiaries for Trust documents.

T 09 303 5278

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