Law News - Issue 1

THIS WEEK’S ARTICLES

Issue 1 5 Feb 2021

Clarity needed on Covid jabs p1

More bad news for trustees p3

Are online contracts enforceable? P7

LawNews adls.org.nz

EMPLOYMENT/HUMAN RIGHTS LAW

Bosses, unions want clarity on Covid-19 jabs

By Diana Clement

Business New Zealand and the CTU (Council of Trade Unions) are calling on the government to provide advice on whether they can direct employees to get a Covid-19 vaccination.

Employers will also need to decide how to deal with employees who will refuse the vaccine because of religious or anti-vaccination beliefs, or other fears, says CTU president Richard Wagstaff. That may involve redeploying them.

Mackay concurs: “The existence of those groups makes it almost obvious that you can’t have a blanket rule that you must get vaccinated, because every one of those groups can have justifiable grounds for saying ‘no that was not justified’ or ‘that was discriminatory’.”

There is a plethora of questions to be considered, such as whether the requirement to be vaccinated could be written into new employment contracts.

But the mere suggestion raises red flags under employment law and the New Zealand Bill of Rights Act 1990.

Could employers demand that all staff are vaccinated? What if vaccinated employees refuse to work with the non-vaccinated? And could vaccines become compulsory for people who want to enter the country? And, as Qantas has already indicated, on airlines?

This has become a major issue across the ditch.

Fearing an avalanche of legal disputes, including unfair dismissal claims, Australian business leaders

Photo by Tulcarion/Getty Images

Business NZ’s manager, employment relations policy, Paul Mackay, says the government has a responsibility to coordinate input from multiple agencies, including MBIE and the Ministry of Health, into a single coherent piece of advice delivered through the Covid website. “That’s the perfect vehicle to put that advice on. It just needs to be done,” he says.

Government needs to provide coherent advice on whether employees can be forced to have the vaccine

With the current lack of research, knowledge and experience of the Covid vaccine, it would be a pretty steep burden of proof to get compulsory vaccination over the line in court have urged Cabinet to provide guidelines and advice.

But back in this country, Covid-19 response minster Chris Hipkins has no answers as yet, saying it’s “too early to comment” on advice to businesses and

the unions about mandatory vaccination in some workplaces.

“In terms of incentives, sick leave, additional pay and any related matters, we’re not yet in a position to design schedules for the vaccination roll-out, and the forms it will take,” he says. “Some might be workplace-based and others where people are required to travel. The shape these ultimately take could influence what supports might be provided.”

Mackay sees a role for business in the rollout and uptake of vaccines but says the government must take the lead in dealing with the logistical and legal issues. He suggests there may be situations where employers pay their staff for the time and other costs involved in getting vaccinations.

The law The Employment Relations Act 2000 and the Bill of Rights Act both come into play on the question of Continued on page 2

EMPLOYMENT/HUMAN RIGHTS LAW

Bosses, unions want clarity on Covid-19 jabs Continued from page 1 compulsory vaccination in the workplace.

Dr Bill Hodge from the University of Auckland’s Law School says while s 11 of the Bill of Rights Act says you have a right to refuse medical treatment, s 5 allows for justified limitations to that right.

“So, it’s not an absolute prohibition. You have to demonstrate that it’s justified in a free and democratic society,” he says.

“The government [could] say, ‘we’re a vulnerable island society and we’re going to prove justified limitation on your right to resist by s 5.” The government must balance individuals’ rights with competing interests such as providing adequate healthcare and not allowing our standard of living to significantly deteriorate.

AUT law professor Kris Gledhill says a decent argument for compulsory vaccination can be constructed in relation to some diseases, weighing the risks to others against the right to refuse medical treatment, which is not absolute. “Witness compulsory psychiatric treatment, even for people who have capacity.”

Whether it is justified in relation to Covid-19 will depend on the evidence about the danger it poses and whether there are alternatives, Gledhill says. “Banning people from flying or visiting care homes, or from attending university or using public transport – those might also be proportionate steps to take to encourage people to be vaccinated because of the duties people have to the community and the need to protect the rights of others.”

Gledhill adds that rights aren’t always absolute.

Rights represent an important value in our society, he says, but need to be weighed against countervailing arguments. Hence the existence of s 5 of the Bill of Rights Act. In respect of Covid-19, the government has many competing interests which it has a duty to balance – for example, protecting the right to life is the government’s duty and can justify conditions such as limiting numbers of returnees. The right to health could be undermined if healthcare systems are overwhelmed. Rights that flow through from having a robust economy, such as the right to an adequate standard of living, are protected by cutting off international tourism, Gledhill says.

Paul Mackay

Richard Wagstaff

The interests of those involved in tourism, including the airlines that bring international tourists here, must be weighed in the balance. “But a government can properly point to the importance of allowing New Zealanders to move around.

There is, after all, a right to freedom of movement within a state – to enjoy domestic tourism – whilst travel abroad is difficult. This right would be compromised if there were not proper checks to contain Covid-19 at the border.”

pull aeroplanes.

Offshore New Zealanders also have rights, Gledhill says. But the government can give extra weight to protecting people already here.

Public/private employees The Bill of Rights Act applies to individuals employed by the government, but not to those working for private employers, Hodge says. “[But] even in the private sector, where the Bill of Rights doesn’t apply, the courts are going to say ‘gee that’s a pretty big invasion, we want to see what’s fair and reasonable’.”

The next step in considering compulsory vaccination would be whether there was precedent for some sort of invasion of the body such as requiring a urine test, he says.

A full court of the Employment Court ruled in favour of Air New Zealand on compulsory urine testing for staff members deployed to safetysensitive roles, such as driving vehicles that

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Other industries where a court might find compulsory vaccination justifiable might be hospitality, health and aged care facilities, says Hodge.

Mackay points out that in some cases it might be more important for the vulnerable patient or client, rather than the employee, to be vaccinated if the employee can still pass it on. In an aged care facility, it might make more sense to vaccinate the residents.

If, on the other hand, you’re manufacturing something on an assembly line and you don’t have any direct contact with vulnerable members of the public, there may be less of a case for vaccination, Hodge says. “I am sure the court would say, ‘it depends on the facts. Tell us more’.

“Are you handling something and handing it to somebody else? Or are you more-or-less alone, putting bolts and nuts on a part of the machine that comes along the line and you don’t really deal with anybody else in near proximity? I don’t see that there’s a strong case there.

“What’s more, with the current lack of research, knowledge and experience of the Covid vaccine, it would be a pretty steep burden of proof to get compulsory vaccination over the line in court.”

Hodge believes, however, that there is a debate to Continued on page 4

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LawNews Issue 1 | 5 Feb 2021

TRUST LAW

Tough new disclosure rules for trusts

By Bill Patterson

On 2 December last year – with urgency and, it appears, no prior consultation – the government introduced onerous new reporting obligations applying to all trusts earning income from 1 April 2021.

In addition, trustees of these trusts may be required to provide similar information for tax years as far back as the 2014-2015 tax year.

The new requirements are set out in the Taxation (Income Tax Rate and Other Amendments) Act 2020 which adds new sections to the Tax Administration Act 1994.

They are: s 17GB, permitting information-gathering (not just in relation to trusts but generally) to promote tax policy; s 59BA, creating an annual return trusts must file; and s 59BAB, permitting retrospective information-gathering in relation to trusts from the end of the 2013-2014 income year.

The government passed the legislation on 3 December last year and the Act was granted royal assent on 7 December.

In summary, trustees will be required to provide: financial accounting information, including profit and loss statements, balance sheet items and other information to be specified by the commissioner – for example, any transfers to the trust by associated persons; additional information such as loans to or by related parties; and information on distributions and settlements made during the income year.

This information-gathering regime appears to go well beyond anything required to prevent taxpayers diverting income which would otherwise be taxed at 39% into a trust taxed at 33% The information required about trust distributions will include identifying information for beneficiaries such as their name, IRD number and date of birth.

Other information relating to distributions – for example, the source of the distribution – may also be required.

Information will be required for settlements on the trust during the year. This will include identifying information for settlors such as name, IRD number and date of birth, along with the amount and nature of each settlement. In addition, for the 2021-22 return year, trustees will have to provide names and details of settlors from prior years.

Trustees will also be required to provide information on persons who have power under the trust deed to appoint or dismiss a trustee, to add or remove a beneficiary or to amend the trust deed.

This information-gathering regime appears to go well beyond anything required to prevent taxpayers diverting income which would otherwise be taxed at 39% into a trust taxed at 33%.

Rather, it seems to reflect a view of officials that trusts are somehow “bad” and are often misused.

This contrasts with speeches from members on all sides of the House when the Trusts Bill was introduced in 2019. They all said trusts were “good” and play

Bill Patterson

There is a significant measure of overkill in the new rules a valuable role in New Zealand’s commercial life.

There is a significant measure of overkill in the new rules. According to the regulatory impact statement accompanying the bill, there were 86,000 taxpayers earning more than $180,000 per annum, where the new 39% rate cuts in. Yet there were 245,000 trust tax returns filed. A large number of trusts affected appear to involve taxpayers who will be earning well under $180,000 per annum.

Not only will these new requirements impose significant compliance costs on trustees, they also create a risk that information obtained – for example, a past distribution to a beneficiary living overseas may have been capital under New Zealand tax laws but taxable under the laws of that person’s jurisdiction – may be shared with foreign government agencies under tax information exchange agreements New Zealand has entered into.

While accountants may see a bonanza ahead, lawyers who are already considering what advice to give to trustees about the Trusts Act 2019 will also have to consider how they should advise clients about these new requirements. The Trusts Act came into force on 30 January this year.

It may be considerably cheaper and less stressful for clients who are not likely to be in the 39% income tax bracket to sacrifice the protections their trust was designed to afford and to take income-earning assets back into their own names. As personal taxpayers, they do not have anywhere near the same obligations as trustees will now have.

Non-active trusts (those with passive assets such as the family home or bach or other non-income-earning assets) are not affected by the new requirements. A choice might need to be made about keeping those assets in a trust but removing the income-earning assets.

Bill Patterson is a partner at Patterson Hopkins and convenor of the ADLS Trust Law committee. The views expressed are his own and not necessarily those of the committee.

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Continued from pages 1, 2

Dr Bill Hodge

Catherine Stewart

Kris Gledhill

be had.

risk area and put themselves or others at risk, the employer might be justified in dismissing an employee who refuses a vaccine, provided the employer followed a thorough process, Stewart says.

“Even perhaps more analogous is the medical examination clause of an employment agreement [which might] say, ‘if you become incapacitated and unable to work, we have the right to require you to undertake a medical examination to ascertain your fitness to work and then we will assess whether or not we will continue to employ you’.”

Health and safety The argument is not simply about protecting patients and clients of a business. Employers have a duty to take reasonable steps to protect the health and safety of all their employees. Hodge points out that employers must take employees as they find them. “If you’ve got an immune suppression syndrome of some sort, then the employer has to take you with that once you’re employed.”

One answer might be to seek a declaratory judgment that would likely move to the Court of Appeal.

“My recommendation would be that employers have policies in place to explain the reasons behind the need for vaccination and to give employees an opportunity to provide feedback on those policies.

That feedback would need to be discussed with the employee and considered. [Employers also] need to consider alternatives such as redeployments or other options to vaccination such as wearing PPE, and so on.”

In the case of a Covid vaccination, however, there is likely to be stronger grounds to enforce such clauses because there is such a strong public health necessity, she says.

But Stewart questions how enforceable a compulsory vaccination clause might be once the person is employed, even if it’s written into the contract and both parties have agreed.

As barrister Catherine Stewart sees it, some employees might have genuine reasons for declining a vaccine because they are concerned about adverse effects.

Whether vaccination policies and dismissals for refusing vaccinations will be upheld in court is untested territory. “These are issues that will need to be worked through with the Employment Court on a case-by-case basis.”

She says a careful analysis and assessment needs to be made of the effectiveness of the vaccine and its side effects. “Imagine if the employer, for example, required an employee to have a vaccination, and the employee then had a massive adverse reaction to the vaccine?”

Pre employment Employers requiring mandatory vaccination could also face issues during the pre-employment process, although it will come down to bargaining.

In a pre-employment situation, a requirement for being vaccinated would not come under the prohibited grounds of discrimination under the Human Rights Act.

Stewart says: “What is the employer offering and what is the employee willing to accept? In the same way that you bargain for drug and alcohol clauses, an employer might require [vaccination clauses].

The employee might refuse. Then it comes down to what extent the employer is willing to take on [the candidate] if they decline.”

“It’s a different kettle of fish from discrimination,” she says. “It’s more akin to alcohol and drug-type clauses.

As an example, she cites clauses in contracts requiring consent for a medical examination. If an employee refuses, the employer may choose not to take that person on.

The question also arises about whether returnees or visitors to New Zealand can be required to have compulsory vaccines.

Employees should be encouraged to be vaccinated in preference to compulsion, say Mackay and Wagstaff. Attempts in the past have backfired – for example, when employers tried to force employees to have flu injections, Wagstaff says.

Stewart says putting in place vaccination policies is something employers need to look at imminently.

It would be difficult to overcome the entrenched right of people to refuse medical intervention but, on the flip side, employers have an obligation to provide a healthy and safe workplace and manage high risks prudently.

“So, I think that an employer may be justified in some circumstances in requiring an employee to have a vaccine.” The employee could still decline with justification on a range of circumstances.

Stewart says the best avenue for employers might be to consult with workers and persuade them effectively rather than attempting compulsion.

In scenarios where employees work in a high4

“Whether it’s reasonable to decline on the basis of an employee saying, ‘I’m not going to accept this vaccination’ will again be one of those overall [risk] assessments for that employer, and for the employee’s role.”

Stewart says the courts have been cautious about enforcing such clauses and contracts in relation to drug and alcohol testing, and medical examinations. They have erred on the side of free and willing patient consent.

“The courts do take great caution not to be too intrusive with those types of issues and to be really clear about consent and carefully drafted clauses which are appropriate for the situation.”

The best advice for employers on these questions is to seek advice and use well-drafted policies around what vaccinations they require in the circumstances and the reasons.”

Hodge says s 18 of the Bill of Rights Act says every New Zealand citizen has the right to enter New Zealand. Again, that could be subject to section 5, meaning compulsory vaccines could be justified.

“I wouldn’t be surprised if [in a few months] the government said ‘yes, we not only want a test three days before departure, followed by three days of self-isolation or even managed isolation. We’re now going to move to requirement of vaccination.’

That’d be a big step. And that certainly would meet some opposition politically.”

LawNews Issue 1 | 5 Feb 2021

TRUST LAW

Assessing testamentary capacity: an update on Banks

By Anthony Grant

In Banks v Goodfellow (1870) LR 5QB 549, Cockburn CJ set out a test to establish whether a person has testamentary capacity. It met with universal approval and was adopted by judges throughout the Commonwealth where it remains the applicable test today.

Although there have been huge advances in medical science since 1870, the test has not been altered substantially. It should be noted, though, that in Loosley v Powell [2018] 2 NZLR 618 our Court of Appeal said the checklist of factors in the Banks decision were to be regarded “as guiding propositions rather than as a formula”.

Fitzgerald J considered the test for testamentary capacity in unusual circumstances in Dodssuweit v Olivier [2019] NZHC 1226. Two weeks before a Mrs D died in 2017, she made various gifts and executed a new will, the effect of which was to benefit her daughter to the detriment of her two other children.

A week before she made the gifts and the will, Mrs D was admitted to a mental health unit on the basis that there were reasonable grounds for believing she was mentally disordered.

She had an unusual personality and was described as being “eccentric, dramatic, melodramatic... and as having obsessional traits”. Her son said she had been seriously contemplating suicide in the days before her death. A doctor who treated her shortly before she died said she believed her son was persecuting her and that she had “repeatedly asked [the son] to help her die”.

The two children who were disadvantaged sought to set aside the gifts and the will on the grounds that Mrs D had lacked sufficient mental capacity.

Both claims were rejected by the court.

When I read this case recently, it brought to mind the case of Key v Key [2010] EWHC 408 (Ch) a decision of Mr Justice Briggs.

Key had been married to his wife for 65 years. When she died in November 2006 he was devastated. His GP described him as “desperate, not sleeping” and needing a “full social care package.” The doctor also said: “I think he is high risk as he was so dependent on his wife.” He said Key had been “extremely distressed” and he “would have concerns in terms of him making decisions at this time, because of his emotional state after losing his wife”.

A week after the wife’s death, one of Key’s daughters took him to see a solicitor where she arranged for him to make a new will under which she and her sister would take the bulk of his estate. The will was in sharp contrast to his previous will.

The disadvantaged sons contended that the will was made when Key lacked testamentary capacity, an argument that was upheld by Mr Justice Briggs in a decision where he modified the test in Banks v Goodfellow. This is what he said:

“Without in any way detracting from the continuing authority of Banks v Goodfellow, it must be recognised that psychiatric medicine has come a long way since 1870 in recognising an ever widening range of circumstances now regarded as sufficient at least to give rise to a risk of mental disorder, sufficient to deprive a patient of the power of rational decision-making, quite distinctly from old age and infirmity. The mental shock of witnessing an injury to a loved one is an example recognised by the law, and the affective disorder which may be caused by bereavement is an example recognised by [the two psychiatrists who gave evidence in the case, one of whom] ‘described the symptomatic effect of bereavement as capable of being almost identical to that associated with severe depression’. Accordingly, neither I nor counsel has found any reported case

Anthony Grant

dealing with the effect of bereavement on testamentary capacity, the Banks v Goodfellow test must be applied so as to accommodate this, among other factors capable of impairing testamentary capacity, in a way in which, perhaps, the court would have found difficult to recognise in the 19th century.” [95]

“Mr Key was devastated by his bereavement. It was in my judgment a severe affective disorder, perhaps sufficient on its own to have deprived him of testamentary capacity, but probably sufficient in combination with his mild pre-existing cognitive impairment.” [107]

One of the psychiatrists who gave evidence in that case was Professor Jacoby, one of the world’s leading experts in old-age psychiatry who has given expert evidence in many cases involving testamentary capacity.

Professor Jacoby “said in cross-examination that distress caused by bereavement may make the sufferer suggestible and may make him say anything to put an end to emotional pressure. He said that a severe reaction to bereavement may, like depression [be] caused by other factors, impair attention and concentration, and the ability of the sufferer to take things in and remember them. He said that depression could itself cause cognitive impairment with symptoms similar to dementia, a condition [from which] unlike true dementia, the patient might recover once the factors causing the depression had passed.” [109]

In ruling that Key lacked sufficient mental capacity when he made his will, the judge said that “to the extent that such a conclusion involves a slight development of the Banks v Goodfellow test... I consider that it is necessitated by the greater understanding of the mind now available from modern psychiatric medicine, in particular in relation to affective disorder.” [115] My reason for referring to the Key case is a desire to publicise the very sensible decision of Mr Justice Briggs in which the test in Banks v Goodfellow was expanded to incorporate some medical developments that have occurred since 1870. I suspect the court’s assessment of Mrs D’s capacity in the Dodssuweit case might have been assisted if the psychiatrists had not been confined to the test set out in Banks v Goodfellow and it had been able to assess capacity for decision-making by reference to some other medical discoveries that have occurred in the past 150 years.

Anthony Grant is an Auckland barrister specialising in trusts and estates law 5

ADLS COMMITTEES

How the ERA is navigating through Covid-19

By Alastair Espie

Like all areas of the law, the employment jurisdiction was confronted with several unique challenges throughout 2020, forcing practitioners and the employment institutions to adapt to new ways of operating and to accept significant disruption to the process of resolving employment relationship problems.

In this context, the ADLS Employment Law Committee was privileged to hear from two of the Employment Relations Authority’s Auckland-based members, Eleanor Robinson and Nicola Craig, at its November meeting.

Each provided an overview of the ongoing Covid-19 challenges facing the ERA and the steps taken in response, along with a discussion of more general trends.

Some of the key takeaways from the discussion were:

At the time, the ERA had a backlog of approximately 130 files awaiting allocation to members.

In the months following the initial lockdown, there was an increase of nearly 33% in the number of applications being lodged with the ERA.

During lockdown periods, the ERA has sought to advance applications via email.

It identified Covid-19-related issues that could be fast-tracked, allowing relevant principles to be set out. Since these cases were determined, the number of Covid-19-related applications has begun dropping.

Due to the high number of applications, the ERA has been unable to schedule investigation meetings inside the timeframes that practitioners are accustomed to. So, it has adopted a priority waitlist system to assist in clearing the backlog. Under this system, cases that were adjourned because of lockdowns were prioritised. Others are being scheduled based on the order in which they become ready for an investigation meeting (ie,

once all documentary material has been filed).

But there remains scope for urgent applications, such as interim reinstatement claims, to be advanced expeditiously.

Zoom has proven an effective tool to efficiently advance applications. However, its primary use has been for submission-only investigation meetings or to allow overseas witnesses to participate in the process. The ERA still prefers face-to-face investigation meetings if evidential disputes need to be resolved.

Less than 50% of parties are represented by lawyers. Those not represented by lawyers are either self-represented or represented by nonlawyer advocates.

The committee greatly appreciated the members’ insights and time. With Covid-19 likely to continue casting a shadow for the foreseeable future, employment practitioners need to understand the impact it is having on the ERA and its caseloads so client expectations can be managed.

Alastair Espie is a senior associate at Duncan Cotterill and a member of the ADLS Employment Law committee

ADLS COMMITTEES

Sub-committee to drive change in parole system The ADLS Criminal Law committee has formed a subcommittee aimed at advancing the profession’s awareness and understanding of the importance of the parole system and process, increasing the number of lawyers practising in the area, and to create a network of strong legal voices advocating for any identified need for change or improvement in the system.

New Zealand has a significant prison population and a punitive prison culture. So, prisoners must have legal representation throughout their sentences and at their Parole Board hearing.

estimated only 10% to 15% exercised this right. The statistic is concerning because of the individual rights at stake, namely unlawful or arbitrary detention.

Limited resources and delays in accessing relevant programs impact critically on a person’s sentence progression and ability to be considered for parole.

This issue is directly relevant to New Zealand’s high prison population and concerns about recidivism.

Covid-19 has only exacerbated these challenges.”

An initial key focus of the Parole Sub-Committee will be on the provision (or non-provision) of rehabilitation and reintegration programs to prisoners during their sentences. The rehabilitation and reintegration of a prisoner through the programs and other interventions is a principal purpose of the Corrections system.

Between 2018 and 2019, 9,119 Parole Board hearings were conducted but despite prisoners having a right to legal representation, it is

The ADLS Parole Sub-Committee with be co-chaired by Emma Priest and Lucy Smith

NEW BOOK

Nevill’s Trusts Drafting Handbook, 3rd edition Author: Sarah Parsons

Price: $139.13 plus GST*

The handbook is designed to be particularly useful to smaller firms without large law firm precedent resources. It provides a “technical” and practical resource as a companion to the highly successful Nevill’s Law of Wills, Trusts, and Administration, 13th edition, 2018. The precedents mean the needs of lawyers and legal executives can be met.

Price for ADLS members: $125.22 plus GST*

This edition has been updated to reflect the substantial changes to trusts law, as enacted by the Trusts Act 2019. It also comes with a bonus – onemonth’s trial access to a set of online precedents.

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LawNews Issue 1 | 5 Feb 2021

CONTRACT LAW

Uber delivers lessons in online contract enforceability

By Richard Massey

Online contracts are everywhere these days so it might be surprising to learn that New Zealand’s courts have yet to assess their enforceability. But overseas cases may provide some guidance.

In the US, Uber’s online terms have been examined in a series of leading decisions over the past few years. Most recently, in Kauders v Uber (2021), the Supreme Judicial Court of Massachusetts considered whether Uber could rely on its online terms to enforce an arbitration clause and so avoid a court proceeding.

After carefully scrutinising the specific layout and visual structure of the signup process, the court found that customers had insufficient notice of the terms and no contract had been formed.

Despite differences in the countries’ legal frameworks, the decision is a reminder to New Zealand businesses that contractual terms should be presented prominently and transparently.

The facts The case concerned an Uber customer, Christopher Kauders, who signed up to the app in 2014. Kauders was blind and used a guide dog. Various Uber drivers refused to allow the dog into their cars, and Kauders sued Uber for discrimination.

In response, Uber claimed that Kauders could not bring a court proceeding because of an arbitration agreement in its standard terms which it claimed had been agreed as part of the registration process via the app.

When Kauders registered, the process involved three separate screens, each featuring white text on dark background. The first two screens required users to enter contact details and set up a profile. The third screen (titled “Link Payment”) required users to enter payment information and stated at the bottom of the screen: “By creating an Uber account, you agree to the Terms & Conditions and Privacy Policy.”

Richard Massey

future ride services, they might not expect that initial step to create a contractual relationship. This suggests even greater prominence might be required where registration does not involve an immediate purchase of goods or services. Conversely, where customers make online purchases, they may more readily expect that terms apply (as found in a previous case, discussed here).

The bold words appeared in a rectangular box and linked through to Uber’s standard terms which set out the arbitration agreement and various broad limitations of liability.

The court also criticised Uber’s formatting of the link, with the first part of the text, describing the consequences of creating an account, being less prominently displayed than the bold link to the terms. The court considered that this structure “downplayed the legal significance of creating the account”.

The key issue before the court was whether Uber’s sign-up process gave customers reasonable notice of the terms. In finding it did not, and that no enforceable contract had been created, the court drew attention to the following features:

First, the court considered that where users create an account to enable

The court noted that consumers were not required to scroll through the conditions or even to select them. It also observed that, in “striking contrast”, Uber required all drivers to review terms as part of the driver registration process and to click a button signifying agreement. The court

Continued on page 10

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MEDIA LAW

The old news business model is broken: making Google and Facebook pay won’t save journalism

By Amanda Lotz

The Australian federal government is talking tough about making Google and Facebook pay news businesses for linking to, or featuring, these publishers’ content.

Separate from their linking to, or featuring, these publishers’ content, the digital platforms are just more effective vehicles for advertisers seeking to buy consumers’ attention. They serve ads based on consumer interests or in relation to a specific search.

The simple fact is news publishers’ core content is not that important to the platforms’ profitability.

The digital platforms have been talking equally tough. Facebook is threatening to remove Australian news stories and Google says it will shut off search to Australia if the government pushes ahead with its “mandatory bargaining code”.

Research by the Reuters Institute for the Study of Journalism during the 2019 UK general election – tracking 1,711 people aged 18-65 across mobile and desktop devices for six weeks – found news took up just 3% of their time online (about 16 minutes and 22 visits to news sites a week).

The code is meant to help alleviate the revenue crisis facing news publishers. Over the past two decades they have made deep cuts to newsrooms.

Scores of local print papers have become “digital only” or been shut down completely.

Read more: Digital-only local newspapers will struggle to serve the communities that need them most If legislated, the code will require the platforms to negotiate payments to news publishers, as well as disclose changes in algorithms affecting traffic to news sites.

But the code is unlikely to do much to fix the crisis faced by journalism in the internet age. It isn’t even a band-aid on the problem.

The traditional commercial news business model is broken beyond repair. If the government wants to save the social benefit of public-interest journalism, it must look elsewhere.

Selling readers To understand why the commercial news model is so broken, we first need to recognise what the primary business of commercial news media has been: attracting an audience that can be sold to advertisers.

Newspapers attracted readers with news and feature journalism that provided public value, but also information of interest such as weather forecasts, sports scores, stock prices, television and radio guides and comics. Readers even sought out papers for their advertisements – in particular the “classifieds” for jobs, cars and real estate.

So if stories from Australian news outlets disappeared from Facebook or Google search results, it would barely make a scratch on their appeal to advertisers.

More than 70% of revenue for a typical daily newspaper came from advertising have dismantled the newspaper business model.

They offered new and better ways to connect buyers and sellers, pulling advertiser spending away from newspapers. More than 70% of revenue for a typical daily newspaper came from advertising. Before 2000, print media attracted nearly 60% of Australian advertiser dollars, according to an analysis for the Australian Competition and Consumer Commission’s Digital Platforms Inquiry. By 2017 it was just 12%.

Internet technologies also provided better ways to access the non-journalism information that had made the bundled paper valuable to a mass of readers.

Before the internet the newspaper was the only place to access much of this information. This broad bundle of content attracted a wide range of readers, which the economics of newspapers – particularly the cost of producing the journalism – required.

Readers also now access news in many other places, through news apps, aggregators and social media feeds such as Twitter, Reddit, Apple News, Flipboard and many others, including Facebook and Google. Research by the University of Canberra’s News and Media Research Centre published in 2019 found just 30% of Australian news consumers accessed online news directly from news publishers’ websites.

Broken business model Internet technologies introduced two changes that

Main problem If Google and Facebook are “to blame” for news

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Read more: It’s not ‘fair’ and it won’t work: an argument against the ACCC forcing Google and Facebook to pay for news Save journalism The Australian Competition and Consumer Commission’s Digital Platforms Inquiry has rightly noted the revenue crisis has crippled commercial provision of public-interest journalism “that performs a critical role in the effective functioning of democracy at all levels of government”.

But the core of the problem is that funding such journalism through advertising is no longer viable.

Other solutions are needed – locally and nationally – to ensure its survival.

Read more: Web’s inventor says news media bargaining code could break the internet. He’s right – but there’s a fix Commercial news organisations no longer offer value to advertisers. Instead of searching for ways to make an obsolete business solvent, efforts should focus on alternative ways to fund publicinterest journalism.

More funding for independent public broadcasters is one solution, and incentives for philanthropic funding and non-profit journalism organisations are proving successful in other countries.

It’s a global problem. To solve the crisis in Australia will require focusing on the core problem and thinking bigger than a bargaining code.

Amanda Lotz is a Professor of Media Studies at the Queensland University of Technology THE ABOVE IS REPUBLISHED, WITH PERMISSION, FROM THE CONVERSATION

Photo by Mustafa Murat Kaynak/Anadolu Agency via Getty Images

publishers’ malaise, it is not in the way the bargaining code suggests.

LawNews Issue 1 | 5 Feb 2021

Collegiality Events Retirement Dinner for Bob Eades Friday 12 February | 6.30 pm until late The Northern Club

Inaugural Annual Breakfast with the Rt Hon Dame Helen Winkelmann Thursday 18 March | 7.15 am - 8.30 am The Northern Club

24 Feb

Auckland Newly Suited Summer Quiz & Pizza Night

02 Mar

Auckland Central Lawyers’ Lunch

10 Mar

Hamilton Lawyers’ Lunch

For tickets & more information click on the images or contact us

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CASE NOTE

Ngāti Whātua wins first round of Auckland land claim

By Sacha Jugum

Crown’s overlapping claims policy – application for judicial review and for declarations – applicable principles – procedure – tikanga – parliamentary primacy – availability of declarations – mana whenua – level of consultation – factual disputes – status of land – application to cross-examine witnesses – precedent and academic commentary – challenges to legislation – appointment of pūkenga [as court experts in tikanga] – “hot-tubbing” of experts – leave granted for cross-examination of certain witnesses, by consent – application to appoint pūkenga declined Ngāti Whātua Ōrākei Trust v Attorney-General & Or [2020] NZHC 3120 (Palmer J) The parties have a substantive hearing scheduled for 2021 where Ngāti Whātua seeks declarations as to its rights and status over certain land in the Tāmaki Makaurau [Auckland] area.

The proceedings follow an earlier application for judicial review which was considered by the Supreme Court. Some aspects of the iwi’s original proceedings would have essentially meant a challenge to legislation, or that the court would be in a position of commenting on or impacting on the passage of legislation. This is within the ambit of Parliament, not the courts.

Ngāti Whātua also applied for declarations relating to the level of Crown consultation and the way in which the Crown’s overlapping claims policy should be implemented and observed.

Applicable principles – extensive discussion of procedure, including the inclusion and importance of tikanga and the jurisdiction of the court to reference tikanga and appoint relevant experts – consideration of whether there are factual disputes and whether these were disputes or only differences in expression – whether the existing witnesses would be sufficient – significance of cross-examination of witnesses – consideration of academic commentary and precedent – applicability of High Court Rules 2016 – analysis of the most appropriate way to hear and use the expert evidence of witnesses Held: [after discussion of all matters] leave granted for cross-examination of certain witnesses, by consent – application to appoint pūkenga declined.

Read case at Judicial Decisions Online

Continued from page 7

considered it significant: “Clearly, Uber knows how to obtain clear assent to its terms.”

The court also criticised the placement of the hyperlink, both because it did not appear until the third screen of the process and because it appeared at the very bottom of that screen. The more prominent information at the top of the screen, and a large button in the centre, dealt with payment options. The court considered that: “Nothing about this third screen conveyed to a user that he or she should open a link that would reveal an extensive set of terms and conditions at the bottom of the screen to which the user was agreeing.”

As a result, the court found there was no enforceable agreement between Uber and Kauders and therefore the dispute was not arbitrable.

NZ implications The case highlights the importance of presenting online terms clearly to consumers, a principle which will apply similarly in New Zealand as it does in the US. Kauders v Uber provides the following valuable takeaways for any consumer-facing organisation:

terms should be transparently and conspicuously presented, particularly where consumers may not readily assume they are entering into a contract (eg, signing up for an account without simultaneously acquiring any goods or services);

any links to the terms should be explained by text which, with equal prominence to the link itself, explains how the terms become binding (ie, that by creating an account or by clicking a button, the customer accepts the terms); links to consumer terms should be at least as conspicuously presented as terms used in other channels (eg, supplier terms). If consumer terms are presented less clearly than for other channels, a court could (as in Kauders v Uber) infer that the business has deliberately sought to exploit consumers’ willingness to agree online contracts without reading the terms; and where multiple screens are used during a sign-up process, the terms 10

should be presented early on (ideally on the first screen) and in a prominent central position.

These principles, and others described in our previous article, will assist in terms of improving arguments for contractual enforceability and reduce regulatory risk.

Despite differences in the countries’ legal frameworks, the decision is a reminder to New Zealand businesses that contractual terms should be presented prominently and transparently Where online consumer terms are not conspicuously presented, this can create a risk of challenge by the Commerce Commission under the “Unfair Contract Terms” provisions of the Fair Trading Act 1986.

In particular, if a term is not reasonably necessary to protect the relevant business’s legitimate interests, or if it is not suitably transparent, there is a greater risk that a term could be declared unfair, meaning it will be unenforceable.

The significance of online terms is likely to grow as the Unfair Contract Terms regime expands to cover business-to-business contracts, as part of various proposed changes under the Fair Trading Amendment Bill (awaiting its second reading following submissions last year).

It would be prudent for businesses to review their online terms with the above principles in mind.

Richard Massey is a senior associate at Bell Gully

LawNews Issue 1 | 5 Feb 2021

Locum/Consultancy

LawNews Get your message in front of 5500 legal professionals.

Booking deadline is close of business on the Friday prior to publication date.

Email Darrell.Denney@adls.org.nz or call 021 936 858 to book your advertisement.

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Princes Chambers | Office for Lease Located in one of the oldest character buildings at 3 Princes Street, Auckland Central. Strategically positioned between the High Court and Auckland’s financial and legal precinct.

We currently have one large office (62sqm) suitable for a small team and one smaller office (18sqm) for an individual barrister on offer.

Lease includes the use of meeting room, courtyard, and kitchenette.

Please email: richardtan@timbergrow.co.nz or phone 0212768168.

Youth Advocates Conference Friday 26 February | 4 CPD hours In Person & Live Stream

This conference will give an overview of the Youth Justice System and focus on the function and procedures in the courtroom.

Click here to view the full brochure

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

Featured CPD Essentials to Consider when Considering a Proprietorship Offer — FINAL NOTICE In person | Live Stream

Just what does a partnership, directorship or other proprietary interest in a law practice mean these days? Are any terms negotiable? What’s reasonable? What’s wise? Are you compatible? Do you have what it takes to be a leader? Can you really achieve a work-life balance? While it’s flattering to be asked, is it truly what you want? In this seminar, our experienced panellists will answer these and other questions for those considering moving up or into a proprietorship, merging practices or reviewing their arrangements.

Learning outcomes: •

• •

•

Become apprised of what’s negotiable and what’s not with a partnership offer, and how to assess the offer on the table.

Gain insights into how to conduct due diligence – not only on the practice, but also on yourself.

Get across the various financial aspects involved, including buy-in, the capital account, insurances and poor-performing colleagues.

Develop a better understanding of what it takes to step up into a leadership role in a firm, what your gaps may be and what to focus on to fill them.

Jumping off the page In person | Live Stream The late Justice Antonin Scalia (and RBG bestie) once quipped that “the main business of a lawyer is to take the romance, the mystery, the irony and the ambiguity out of everything [s]he touches”. A large part of that exacting business is the task of interpretation. It is the bedrock of our legal work. Many disputes turn on the meaning of a written contract, or of a statute, or both. Lawyers constantly fret: “what on earth do these words mean?”. The answer, often knife-edge, can have enormous consequences. The New Zealand courts have been tightening up their approach to interpretation, re-emphasising the primacy of the text. Judges have admonished parties for excessive reliance on external material that is inadmissible, only remotely relevant, or “singularly unhelpful”. This seminar will explore what may properly be put before the court.

 Seminar

Livestream

CPD 2 hrs

 Thu, 11 Feb 4pm – 5.30pm

 Presenters Denis McNamara, Law Practice Consultant Sam Bassett, Director, Moore Markhams, Chartered Accountants Carmel Byrne, Partner, Stepshift

 Seminar

Livestream

CPD 1.5 hrs

 Mon, 15 Feb 4pm – 5.30pm

 Presenter Gillian Coumbe QC, Barristers at Chancery

Learning outcomes: •

•

•

•

Update your understanding of the principles governing the interpretation of written contracts and of statutes, including the most recent case law; In relation to contracts, get practical guidance about what evidence is admissible (or not) under the “factual matrix”, commercial context, prior negotiations, and subsequent conduct; In respect of statutes, hear the latest word on permissible and impermissible extrinsic aids relating to legislative history; Overall, learn how far beyond the written page you should look in giving advice, or in bringing or defending a proceeding involving an issue of interpretation.

Mortgagee Sales: Avoid the Pitfalls With businesses closing or downsizing, incomes being affected and jobs being lost, it likely won’t be long before the economic turmoil wrought by Covid-19 plays out in an increase in mortgagee sales. These present a special status and rights. Are you prepared for advising and acting? Providing property and litigation perspectives, this webinar will assist you to advise those contemplating, or confronted with, a mortgagee sale.

Learning outcomes:

 Webinar CPD 1.5 hrs

 Tue, 16 Feb 12pm – 1.30pm

 Presenters

In respect of mortgagee sales: • Deepen your knowledge of when the process might be commenced, and what is involved.

• Explore the options that exist, and trends in play.

• Get to grips with the twists and turns the process can take.

• Delve into where challenges to a proposed sale might arise.

• Gain insights into common traps and complications and how to avoid or deal with them.

Nicola Robertson, Director, Sanderson Weir Limited Tony Johnson, Partner, Martelli McKegg

Future Planning: Alternative Mechanisms for Selling the Family/Small Business

 Webinar

Globally, 80% of businesses are family owned, however only 25 to 30% of these businesses will successfully transfer to the second generation, leaving two thirds of business owners to find an alternative mechanism to sell their family owned businesses. This webinar will focus on preparation for sale, compare sale processes, discuss the value of the business, the role of management or joint venture partners and working with advisors.

Learning outcomes: • •

• •

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Learn more about the mechanisms for family business succession in a post-COVID environment.

Gain an increased understanding of the role of management or new joint venture partners in release of equity to business owners through the succession process.

Learn more about the changing dynamics around business values.

Gain insights into advising clients on preparation for sale and the various sale processes.

CPD 1 hr

 Wed, 17 Feb 12pm – 1pm

 Presenter Tim Howe, Partner, Ocean Partners

LawNews Issue 1 | 5 Feb 2021

CPD in Brief Bully or Client – Where is the Line?

In person | Live Stream There has been considerable recent focus on bullying in the workplace, bullying between professionals and bullying from the bench. But what happens when the unreasonable conduct is being driven by the client? What are our obligations as employers, and what are our rights in respect of our employees’ and our own engagement with these clients? Do the new Conduct and Client Care Rules provide a solution to these issues? This session covers lawyers’ legal and ethical obligations in this context, and the best way forward to establish a sustainable legal practice with enduring client relationships.

Presenters: Janine Stewart, Partner – Construction MinterEllisonRuddWatts; Gillian Service, Partner, MinterEllison RuddWatts; Katie Karpik, Solicitor, MinterEllisonRuddWatts. Chair: Dennis Jenkin, Barrister

Your Legal Business: Practice Management in the Cloud: A Practical Demonstration In person | Live Stream Does practising from the beach, bush or mountains sound appealing? Has Covid-19 got you thinking about the need for a robust yet flexible practice management system? Do you know a bit about the Cloud but would like to know more and understand how it could serve you and your practice? Through the use of a practical demonstration and reference to reallife insights, at this seminar you will be able to see and hear how systems can talk to each other, the sort of problems that operating in the Cloud can solve, and what limitations exist.

Presenters: Sumire Tachibana, Senior Manager, William Buck Chartered Accountants and Business Advisors; Martinus Naude, Director, William Buck Chartered Accountants and Business Advisors; Katerina Hatzidakis, Principal, Accessible Law

Property Law Half-Day Conference 2021 In person | Live Stream The Half-Day Conference provides practically-focused sessions on a range of pertinent and interesting property law topics presented by experts in their fields. It will be of value to all those practising in the area of property law.

Early Bird offer available for bookings made before 10 February 2021.

Topics: Cross Leases, Warranties, Re-instatement of Leases, Sale and Purchase of Commercial Property and Resource Management Law Reform Presenters: Joanna Pidgeon, Partner, Pidgeon Law; Janine Stewart, Partner - Construction, MinterEllisonRuddWatts; Stephen Price, Partner, MinterEllisonRuddWatts; Joanne Ward, Senior Legal Counsel, The Warehouse Group; Brian Jones, Managing Director, Hampton Jones; Kate Storer, Senior Associate, Berry Simons Environmental Law Chair: Bryce Town, Partner, Morrison Kent

Youth Advocates Conference In person | Live Stream NZ’s Youth Justice System has always been pioneering, and following amendments to the Oranga Tamariki Act in July 2019 practitioners in this space have even more tools at their disposal when working with rangatahi. It is a brave, exciting, new world and a time to make the most of what the Act, the Convention and the Treaty offer. This conference will give an overview of the Youth Justice System and focus on the function and procedures in the courtroom.

Topics: The Youth Court, Family group conferences, Arrest, Police procedures and remands and Disposition – sentencing Presenters: Her Honour Judge Otene; Dana George, Barrister and Youth Advocate; Amosa Samuelu, Auckland City Youth Justice Co-ordinator; Maggie Winterstein, Barrister & Youth Advocate; Gary Earley, Barrister; Renee Karena, Barrister & Youth Advocate; Judith Malcolm, Barrister & Youth Advocate. Presenter/Chair: His Honour Judge FitzGerald

 Seminar

Livestream

CPD 1.5 hrs

 Thu, 18 Feb 4pm – 5.30pm

 Seminar

Livestream

CPD 1.5 hrs

 Mon, 22 Feb 4pm – 5.30pm

 Conference Livestream CPD 4 hrs

 Thu, 25 Feb 12.30pm – 5pm

 Conference Livestream CPD 4 hrs

 Fri, 26 Feb 10am – 2.30pm

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.

Bully or Client - Where is the Line?

Thursday 18 February | Seminar & Live Stream | 1.5 CPD hours Visit adls.org.nz for more information.

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Partnership or pre-partnership Opportunity Buy a 50% share of an established small but growing city fringe firm specialising in Asset Protection, Commercial and Property work. This is an opportunity for an ambitious Asset Protection, Commercial or Property Lawyer with 7+ years’ PQE. Bring your own clients with you or build on the existing client base and reap the rewards. There is also the opportunity to extend the firm into other practice areas of your choice. Enjoy the work-life balance, collegiality and continuity for clients that comes with an existing partner remaining with the firm – no sole practitioner issues here.

This is a cost-effective option for a lawyer wishing to build their own practice.

Applications welcomed from senior property, commercial and/or private client lawyers or an existing partner wishing to move laterally.

Expressions of interest sought in the first instance by emailing: advertiser@adls.org.nz quoting reference: POP21

Cambridge Law – Senior Associate / Partnership Opportunity We are seeking a motivated individual with a minimum of 5-6+ years’ PQE to join our busy practice. The role is full time, Monday to Friday from 8.30am to 5.00pm starting immediately.

Experience in trust work (including good knowledge around the new Act), estate work, commercial transactions (including leasing) and conveyancing are essential.

In addition, strong communication skills, the ability to give practical advice and work independently are keys to success in this role. The right candidate will need to have a strong focus on partnership as the firm is currently finalising succession plans with one partner looking to retire in the next 12-15 months and move into a role of consultancy to provide a structured and smooth supportive transition in the partnership.

You will be provided with your own office, a competitive salary package and will be welcomed by a friendly and supportive team working in the heart of Cambridge.

If you are looking for your next career opportunity with scope to grow and independence, please send your CV and covering letter to sabrina@cambridgelaw.co.nz by Friday, 12 March 2021.

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.

Reupena AIOLUPOTEA-AUVAE, also known as Reupena AUVAE, Late of 39-41 Trevor Hosking Drive, Wiri, Auckland 2104, Previously of 76 Cranmere Drive, Mangere, Auckland 2024, retired (previously unemployed), aged 67 (Died 16’08’20) Patricia BLACK, Late of 1/21 Dunkirk Road, Panmure, Auckland 1072, widowed, retired, aged 93 (Died 31’07’20) Roman Eugene Milton GALLOWAY, Late of Auckland, sickness beneficiary, aged 32 (Died 04’04’20) Fiona Blyth HAAR, Late of 12 Barclay Avenue, Mount Roskill, Auckland, aged 49 (Died 20’10’20) Ihaka Kemara HAPETA, Late of 14 Marybeth Place, Rosehill, Papakura 2113, married, truck driver, aged 70 (Died 15’11’20) David Stanley HART, Late of 3 Marlborough Street, Mt Eden, Auckland, harbour board clerk, aged 62 (Died between 01’03’04 and 31’01’20) Gary Edward HELMLING, formerly of Auckland who died in Christchurch, aged 65 (Died 26’12’20) Siro HEREMAIA, Late of 30 Muir Avenue, Mangere Bridge, Auckland, retired, aged 80 (Died 09’06’09) Catherine HODGSON, Late of 24 Rickton Place, Rangiora, aged 52, (Died 23’11’20) Annelouise KRUSE, aka Anne Louise KRUSE, Late of Apt 601, 38A Liverpool Street, Auckland CBD, beneficiary, aged 46 (Died 12’12’20)

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Andrew Craig LAMB, Late of Rescare Homes Trust, House 3, 20 John Broad Place, Flat Bush, Auckland, not married, unemployed, aged 57 (Died 27’11’20) Tuck Choy LIEW, aka Eddie LIEW, Late of 21 Kitewao Street, Northcote, Auckland, mortgage broker, aged 38 (Died 27’12’20) Bill Paul Mutu MARTIN, Late of 26 Windrush Close, Mangere, Auckland, aged 48 (Died 06’12’20) Michael James MCCLURE, Late of 6/2 Western Springs Road, Morningside, Auckland, self employed project manager, aged 46 (Died 20’12’20) Daniel Edward O’NEIL, Late of 25A Grenadine Place, Unsworth Heights, Auckland, single, motor parts service assistant, aged 43 (Died 06’12’20) Dinka SIMUNOVICH, Late of Craigweil House, 143 Parkhurst Road, Parakai, Auckland, Formerly of 14 Puriri Street, Helensville, Auckland, retired, aged 96 (Died 14’01’21) Khamendra Nand SINGH, Late of Auckland, accounts manager, aged 42 (Died 07’12’20) Shan SONG, Late of 282A Whitney Street, Blockhouse Bay, Auckland, married, self employed, aged 49 (Died 30’11’20) Joan TUCK, Late of 4/86 Owens Road, Epsom, Auckland 1023, non-married, retired, aged 84 (Died 03’12’20) Tingting YANG, Late of Zhengzhou City, Henan Province, China, married, business woman, aged 51 (Died 31’07’19) Yuchuan ZHAO, Late of 51 James Mackie Road, Helensville, Auckland 0875, widower, retired, aged 63 (Died 10’10’20)

LawNews Issue 1 | 5 Feb 2021

ROOM AVAILABLE Vulcan Building Chambers has a spacious room in the historic Vulcan Buildings in Vulcan Lane available to a barrister wishing to share reasonably priced facilities with six other collegial barristers.

Facilities include: Website, boardroom, library, kitchen, shower, Fibre, networked printing and photocopying and VOIP phone system. The chambers have a dedicated and capable office manager.

PROPERTY/COMMERCIAL LAWYER Palmer Theron is a busy general practice in Karaka. The firm is seeking an experienced property/commercial lawyer with a solid background in property, commercial, trust and estate work. The candidate should have at least 4 years’ post-admission experience and be able to both manage their own files and work in a team environment. The firm operates from new premises in the rapidly expanding suburb of Karaka and there is real potential for the candidate to grow and/or consolidate their own client base.

All applications will be treated in confidence and expressions of interest should be sent to Stephen Palmer (spalmer@palmertheron.co.nz).

Please email: eden@vulcanbuilding.co.nz or phone 09 300 1253

PREVENTING MISCONDUCT Professional Disciplinary Tribunals: Research and Practice

Hybrid Conference | 19 February 2021 Auckland University of Technology The conference is dedicated to understanding how these New Zealand tribunals function: • • •

Health Practitioners Disciplinary Tribunal Teachers Disciplinary Tribunal Human Rights Review Tribunal Click here for more information

Proudly supported by:

WALTERS LAW MANGAWHAI OFFICE The Walters Law Mangawhai office opened in 2017 and has grown exponentially since then.

Mangawhai is one of the fastest growing towns in New Zealand and the population is expected to double in the next 10 years.

We are extremely busy, and expect to get busier, as the town grows.

We accordingly wish to appoint a senior solicitor to help meet the demand.

The work is varied and interesting, including commercial, property, relationship property; trusts, wills, and estate planning; and dispute resolution.

Mangawhai is a great place to live and work, as is evidenced by the many young people and families moving into town, and there is a wide range of outdoor activities to enjoy. It is also only an hour and a quarter from Auckland if you want a city fix every now and then.

The appointment would suit a senior solicitor with the following attributes: • can hit the ground running and act unsupervised; • is compatible and personable with staff and clients (a people person); • wants and merits quick partnership appointment; and

SOUTH AUCKLAND LAW PRACTICE FOR SALE A highly profitable boutique law practice with a large and longstanding client base offers the potential for both lifestyle and success for a general practitioner. Situated in the South Auckland area, this is a unique opportunity to walk into a solid and ever-expanding profitable base of private and small to medium business clients.

The practice has a substantial conveyancing, commercial, trusts and estates clientele with room to expand into civil litigation and family law. The possibilities are endless for an ambitious general practitioner.

Very flexible arrangements are available for transition to the new ownership.

Expressions of interest c/- Matthew Pasley, Keegan Alexander, Lawyers Auckland, mpasley@keegan.co.nz

KING LEGAL – BIRKENHEAD

Senior General Practice Solicitor – 8+PQEOwnership Opportunity Competitive salary – 5 weeks’ leave – attractive, spacious offices – support/mentoring • Property at all levels • Trusts • Estates/Wills/Estate Planning/Asset Protection • PRA experience an advantage Must have a passion for the law and be a strong and clear/logical communicator. Excellent drafting skills and an appetite for handling contentious contractual and estate issues arising from time to time are essential.

Our well-established client base provides variety and interest. We are not high-volume low-cost operators.

You will be: • an achiever taking a proactive and pragmatic approach to client requirements and objectives; • proud of your efforts and standard of service; • capable of achieving a realistic budget; • highly organised.

You will be expected to assist the principal (sole practitioner) in some admin areas and assist with supervision of F/T staff solicitor and P/T legal executive. Conversely staff will support you in relevant respects.

• has the personality and community-mindedness/involvement to attract new work as the town grows.

Applicants looking to acquire the practice within 3-5 years are also welcome to discuss options and the opportunity to help expand the practice in this high-growth catchment.

Please forward applications and CV’s to John Walters at jwalters@walterslaw.co.nz.

Applications to: nkk.recruitment@gmail.com

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Auckland Community Law Centre is looking for a General Manager (lawyer) to lead the organisation through its exciting next phase.

You will be passionate about promoting access to justice and be able to demonstrate your commitment to it. 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).

Senior Lawyer – Trust/Property/Business Role We are looking for a senior lawyer with a minimum of 5 years’ PQE to join our team. This role is to ease the workload of a Director who is moving towards retirement.

This is a great opportunity for an ambitious and dynamic person with a sound understanding of trusts, property and business. The ability to supervise estate work undertaken by another team member would be beneficial.

Key attributes required for this role: • Have experience in dealing with clients and able to manage your

You will lead a team of 10 staff to deliver high-quality legal services to the community. You will be supported by a capable senior team, and report to an experienced and skilled Board. You will have opportunities to engage with senior members of the profession on the future of access to justice, including the judiciary, regulators, professional associations and policy makers.

own files with minimum supervision

• Relate well to clients and referrers • Have good time management, interpersonal skills, attention to

detail and operate in a collaborative team environment

• Be able to work in a Paperlite office and manage an electronic file

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 practice law in a highly rewarding and meaningful way.

To apply for this role please email a short cover letter and CV to: Darryn Aitchison, General Manager, at: recruitment@aclc.org.nz

using Infinity Software

We offer: • An innovative firm with a great team environment • An opportunity to be part of one of the eastern suburbs’ largest

• • • •

legal practices Market salary, team monthly and annual bonus schemes Excellent established precedents, systems and technology Free parking and iPhone The excellent training, conferences and benefits that are available to members of NZ LAW legal firms

Applications close 28 February 2021.

A full overview and job description can be viewed here.

Please email your resume and covering letter to our Practice Manager, Brandon Tam brandont@dglaw.co.nz or Director, Kelly McCullough kellym@dglaw.co.nz.

No Agencies please

Top Up your CPD with ADLS before 31 March 2021 And receive bonus CPD hours Choose from 13 pre-selected 4-hour CPD On Demand Packages aligned to your area of practice and receive 2 Bonus CPD hours of On Demand to complete at no extra cost (total 6 CPD hours).

Prices: Members $295 + GST Non-members $370 + GST

T 09 303 5278

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