LawNews- Issue 21

Contents

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

Editor: Jenni McManus

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Cover: MinoruM / Getty

Photo: Wesley Soares Ferracini / Getty Images

Scientific evolution: the key lesson from Ellis

Ellis at his original trial. Another of Ellis’ defence counsel, Augusta Chambers barrister Susan Gray, explored the role s 23G of the Evidence Act 1908 played in the way evidence from experts, who had experience dealing with sexually abused children, was admitted.

Also explored: the evolution of science. “We all think we understand memory because we have one. Juries think they understand memory because they have one,” said Irvine, a senior associate in the dispute resolution and litigation team at Christchurch firm Taylor Shaw.

Despite 30 years of scientific development, the reliability of children’s memories as evidence remains an issue that New Zealand’s courts must grapple with as debate within the scientific community persists, a key member of Peter Ellis’ appeal team says.

Contrary to concerns that children couldn’t testify accurately or reliably, the science has shown they could “under the right circumstances”, said Dr Bridget Irvine, who appeared as junior counsel for Ellis in the Supreme Court.

Speaking at ADLS’ recent CPD event Examining Ellis: Legal Principles, Developments, and Learnings, Irvine shared some of the lessons to emerge from one of New Zealand’s most defining miscarriages of justice.

In 1993, Ellis was convicted of sexual offences against children while working at a Christchurch crèche. Never wavering in maintaining his innocence, Ellis died in September 2019, more than three years before the Supreme Court would unanimously quash his convictions on the basis of a miscarriage of justice resulting from the expert evidence given at trial.

The case has captivated New Zealanders for the past three decades, and more recently stirred debate among the public and legal profession after the Supreme Court looked to tikanga to help resolve whether Ellis could continue his appeal despite his death.

At ADLS’ CPD event, chaired by District Court Judge Sanjay Patel, the place of tikanga in the law of New Zealand was examined by Bankside Chambers barrister Kingi Snelgar (Ngāpuhi, Ngāti Whakaue, Te Whakatōhea and Ngāi Tahu), who led the appeal’s tikanga submissions alongside Kāhui Legal partner Natalie Coates (Ngāti Awa, Ngāti Hine, Ngāti Tūwharetoa, Tūhourangi, Tūhoe and Te Whānau a Apanui).

The procedural history of the case, and the context in which it arose, was discussed by barrister Rob Harrison, who represented

“It’s a real problem for our system generally, and so we were really lucky that our experts were so generous with helping us understand memory and the nuances of it – and ultimately helping the court.”

Changing science

Irvine started her career as an academic at the University of Otago, where she completed her PhD in forensic psychology. Her doctoral studies focused on the way in which children are crossexamined in the courtroom.

While at Otago, she got involved with Ellis’ case as the co-ordinator of the Innocence Project New Zealand, which offers pro bono legal assistance to individuals who maintain they are factually innocent.

The volunteer group, made up mostly of psychology and law students, looked at miscarriages of justice through a psychological lens. Key personnel included former Otago Law School faculty dean Professor Mark Henaghan and former vicechancellor and psychology researcher Professor Harlene Hayne, who acted as one of the appeal team’s expert witnesses.

Irvine said a large proportion internationally of cases of wrongful conviction rely on the science having changed for their appeals to succeed. “In our view, this is true with Peter’s case.”

The key evidence that arguably led to Ellis’ conviction was the children’s accounts of the alleged abuse, she said. Their evidential interviews were played at trial in lieu of direct examination, but the complainants were cross-examined.

Vulnerabilities

In 1993, the science underlying children’s memories was still in

Continued on page 04

Reweti Kohere

We all think we understand memory because we have one. Juries think they understand memory because they have one. It’s a real problem for our system generally

Children and humans with memories continue to appear in our courts and it’s important we understand the frailties with that

Continued from page 03

its infancy, Irvine explained. Studies were only just starting to emerge, but crucially they were still preliminary; the scientific community wasn’t willing to conclude that children’s memories were as vulnerable to questioning, media reports and other types of suggestive information, as some results were suggesting.

Since then, an “absolute explosion” of research has not only solidified those early findings but expanded the field into other areas, such as how children’s memories work in a forensic context. The starting point has been that “under the right conditions, children can give very reliable accounts”, Irvine said.

The right conditions helped protect the integrity of the evidence, similar to the chain of custody that crime scene materials, such as a gun or a bloody footprint, should go through. “When you find it, you protect it, you bag it, the whole way through until it arrives at trial to make sure it’s not tainted, [that] nothing has interfered with that piece of evidence,” Irvine said. “It’s the same for a child’s memory.”

Contaminants

Ensuring the memory’s purity wasn’t easy, though. While some likened memory to a tape recorder – “you see something, you record it, you store it and then you later play it back” – others, such as Loftus, have likened memory to a Wikipedia page, Irvine said. “You can go on, edit it, other people can come and edit it and what it looks like at the end is very different to the original source of that piece of information.”

Factually incorrect accounts given by others can also contaminate one’s memory of an event. An eye witness could have observed a white car speeding away from a bank robbery, only to tell the police the car was actually green after having heard a media report that described a green getaway car, the senior associate explained. “You’ve taken in that information from the media reports and it’s changed your memory – even though you initially saw that white car.”

The distortion this “misinformation effect” could create is varied. After canvassing thousands of pages of scientific methods about memory, the appellant’s team distilled the following key principles: first, misinformation permanently alters memory. Consequently, it can’t be unwound and it could lead to one constructing an entirely false report.

Second, memory weakens if the retrieval of an event is delayed. In Ellis’ case, from when one of the complainants last interacted with him (based on the most conservative measure of memory) until they gave their evidential interview, the longest delay was about 1,400 days, Irvine said. “It’s a pretty long time in anyone’s life, as an adult, but when you’re a child, that’s an immensely long period of time.”

Third, richly detailed and consistently maintained false reports can seem “extremely credible”. One of the arguments run in 1993 was that false accounts would lack detail. “But the science has now shown us these memories can be as true as something that you’ve experienced.” And fourth, there is no scientific method for

an interviewer, a child, or a fact finder to distinguish between true and false memories.

Falling away?

One of the key lessons from the case was the close co-operation between the lawyers and the experts. The defence team managed to pull in “the best of the best” on memory. The calibre of the experts, to which the Supreme Court had access, would be important for future cases to consider when relying on memory as evidence, Irvine said.

“Children and humans with memories continue to appear in our courts and it’s important we understand the frailties with it.”

The reliability of children’s memories had been at issue before every court that heard Ellis’ case, Irvine said. In 1999, the Court of Appeal concluded it shouldn’t be asked to make determinations about issues the scientific community had not yet resolved. Nor should it be asked to evaluate the impact of factors on the reliability of children’s testimony when they couldn’t be measured at the time.

“That was our starting point,” she said, “and our argument was that those concerns had fallen away.” By achieving agreement among most of the world’s authorities on memory that there was consensus on the factors that could compromise the accuracy of children’s memory reports, the defence had tried to alleviate any potential judicial concerns.

Moreover, Hayne’s empirical methods had demonstrated the complainants in Ellis’ case were exposed to several pre-interview factors that had subsequently been shown as contaminants.

“We were saying the expert evidence that was led by psychiatrists – they weren’t memory experts themselves –substantially understated the level of risk.”

‘Upsetting’

Irvine said the team had hoped for a hefty statement from the court on reliability. While it was prepared to conclude several contamination factors were canvassed at the trial, the court concluded the reliability debate still existed among memory experts “even today”.

The court had asked the parties’ experts to produce a statement of principles which could be provided to juries. The experts couldn’t agree though and produced markedly different statements.

It was an “upsetting” position, Irvine said, given the defence team had argued strongly about how the courts could proceed in understanding memory. However, the court was persuaded to accept the jury in Ellis’ case was misled by psychiatrist Dr Karen Zelas, the Crown’s expert, who incorrectly rejected or minimised the risk of contamination, among other things. Evidence from another expert didn’t suffice to neutralise Zelas’ impact.

The issue of children’s memory would undoubtedly appear before the Supreme Court again, Irvine said. “I just hope we can get all the right experts back in that room – to have a similar argument.” ■

Missed ADLS’ ‘Examining Ellis’ seminar? Purchase the On Demand course now. ■

You can…. edit it, other people can come and edit it and what it looks like at the end is very different to the original source of that piece of information

Residential Care Subsidy: seven myths and misunderstandings

Vicki Ammundsen

Entitlement to residential care subsidies can be polarising.

The relevant legislation is contained in the Residential Care and Disability Support Services Act 2018 (the RCS Act) and the Residential Care and Disability Support Services Regulations 2018 (the RSC Regulations), which came into force on 26 November 2018.

The RCS Act and the RCS Regulations represent a rewrite of existing policy and provisions formerly contained in the Social Security Act 1964.

The re-written legislation was intended as a policy-neutral review that preserved the previous legislative regime, with updated language and terms.

But this confusion about MSD policy continues. The following non-exhaustive list sets out some of the key myths and misunderstandings that persist:

■ The $27,000 deprivation limit was abolished when gift duty was abolished in 2011. This is not correct.

■ There is no difference between gifting $270,000 10 years ago and gifting $27,000 per year. This is not correct. Gifts outside the five-year gifting period cannot be spread forwards or backwards.

■ MSD is bound by an agreement for the purposes of s 21 of

the Property (Relationships) Act 1976. No, it is not. See G B As Executor of the Estate of E B Of Whangarei v The Chief Executive of The Ministry Of Social Development [2013] NZCA 410 at [10], where the Court of Appeal refers as follows: Ms Jagose for the respondent submitted that to the contrary, the Act and Regulations created a regime where couples, whether they have a marital or de facto relationship, are treated as unitary economic units for the purposes of the aggregation and deprivation of assets. She submitted that the clear words of the Act, interpreted 4 B, above n 3, at [79]. purposively, meant that total per annum gifting per couple that would not constitute deprivation was limited to $27,000 per annum.

■ If you “over-gift”, you can never qualify for a residential care subsidy. This is not entirely correct. MSD will accept a “trust reversal” where an applicant for a residential care subsidy would qualify “but for the trust”. However, MSD policy is that a trust reversal can be carried out where the trust holds the original property transferred by the settlors and requires that no residual assets or benefit are retained by the trust.

■ If trustees refuse to pay for care, there is nothing MSD can

Continued on page 18

Vicki Ammundsen

Massive inter-generational transfer of wealth drives proposed changes to succession law

New Zealand is on the cusp of an enormous transfer of wealth from baby boomers to the younger generations which will likely constitute the greatest wealth transfer in history

These individuals will likely transfer to the younger generations, or donate to charity, around $1.15 trillion in wealth during the next few decades

Silvia McPherson & Daniel McLaughlin

Most practitioners will likely see – and need to grapple with –significant changes to New Zealand’s succession law.

The Te Aka Matua o te Ture | Law Commission has recommended changes, summarised in Report 145 Review of succession law: rights to a person’s property on death. We know the likely shape of these changes but not when they will come into force, or even if the government will accept all the proposals.

This means advisers cannot give clear guidance to clients as to how to respond to these changes. But despite this uncertainty, it is important for advisers to understand that changes are coming, and they need a clear idea of what they will probably look like as there will be significant impacts on their clients’ asset planning.

The proposals also reflect a change in the attitude of the courts and the public to certain asset-planning strategies and issues. Cases like A v D and E Limited as Trustees of the Z Trust already indicate that courts may be willing in certain cases to unwind asset-planning arrangements to ensure people meet familial obligations.

Wealth transfer

It is important to consider the context in which the commission undertook its review. New Zealand is on the cusp of an enormous transfer of wealth from baby boomers to the younger generations which will likely constitute the greatest wealth transfer in history.

Statistics New Zealand data shows 63% of net household wealth was held by individuals aged 55 and over in mid-2018. These individuals will likely transfer to the younger generations, or donate to charity, around $1.15 trillion in wealth during the next few decades.

This massive wealth transfer will have an enormous impact on

investment trends, the financial sector and the global economy. It will likely contribute to societal issues, increasing wealth inequality.

The significant increase in wealth in recent years, driven in part by the property market, makes asset-planning more difficult, and often more contentious. The wealthy – and their advisers – are using increasingly sophisticated asset-planning structures to protect their wealth.

This has created issues where, for example, the structures used effectively disinherit family members. Given the increase in wealth, there is more at stake and a greater incentive to challenge the wealth planning of family members. Anecdotally, there has been an increase in trust and estate litigation in recent years.

Further, societal attitudes have changed since our succession laws were drafted in the mid-20th century. There is a much greater diversity of family arrangements, including blended families, multiple concurrent partners and much less social stigma surrounding adoption and separation.

In part, this is due to New Zealand becoming a more secular society. It is also increasingly multi-cultural, with greater recognition of other cultures’ traditional family units. Families are also increasingly global, with family members living around the world.

The commission’s underlying approach to the review was that succession law should be fit for purpose and should represent the values and principles that modern New Zealanders have about concepts of family, fairness and the network of obligations that people have to each other.

Initially, the commission conducted a review of the Property (Relationships) Act 1976 (PRA), which sets out the entitlements of parties to a relationship to the property owned by each and by

Continued on page 07

Continued from page 06

both of them. The report from that review, Review of the Property (Relationships) Act 1976 (Report 143), proposed the introduction of a new Act governing relationship property law. Report 143 prompted the government to commission a broader review of succession law, so the reviews of relationship property and succession law could be considered concurrently.

Recommendations

The commission conducted the review and released Report 145 in November 2021. More than 400 pages long, the report makes 140 recommendations, concluding that reform of succession law is needed to produce simple and clear law that reflects the attitudes of contemporary New Zealand.

In summary, the recommendations are:

■ to enact a new Inheritance (Claims Against Estates) Act (the ‘new Act’) to replace Part 8 of the PRA, the Family Protection Act 1955 (FPA) and the Law Reform (Testamentary Promises) Act 1949 (TPA), which currently form the body of rules setting out the rights of family and others to the assets of the deceased;

■ that the provisions relating to intestacy should be reformed and modernised, but should remain in the Administration Act 1969, which is the key legislation relating to the administration of estates;

■ that state law should not determine substantive questions of succession to taonga which instead should be determined by the tikanga of the relevant whanau or hāpu, and that taonga should not be available to meet entitlements and claims under the new Act or intestacy;

■ that relationship property entitlements should be dealt with in the same way as other claims under the new Act and that the ‘option A/option B’ election under the PRA should be repealed (under the PRA, a surviving spouse or partner can either elect for a division of relationship property, being ‘option A’, or do nothing and be deemed to accept his or her entitlement under the deceased’s will or the intestacy regime, being ‘option B’);

■ that a surviving spouse or partner should keep the gifts made to him or her under the deceased’s will and then be ‘topped up’ to his or her full relationship property entitlement (rather than the current position under the PRA, which is that gifts under a will to a surviving spouse or partner fail if the survivor chooses option A, unless the deceased expresses a contrary intention in the will);

■ that spouses or partners should continue to be eligible to claim for family provision where they have insufficient resources to maintain a reasonable, independent standard of living;

■ that in relation to family provision claims (replacing claims under the FPA) by children of the deceased, the government should decide whether:

i. all children and grandchildren; or

ii. only those children who are disabled or under the age of 25, should be eligible to claim;

■ that a testamentary promise cause of action (replacing claims under the TPA), which would apply only where the claimant has provided substantial work for or services to the deceased, be included in the new Act;

■ that other claims arising under common law or in equity should continue to operate outside the new Act;

■ that the court should have new anti-avoidance powers to:

■ recover property disposed of by the deceased with the intent to defeat an entitlement or claim under the new Act; and

■ recover property owned by the deceased jointly as a joint tenant where the property interest has accrued to the surviving owner with the effect of defeating an entitlement or claim;

■ that awards under the testamentary promise cause of action should be recovered from the net estate;

■ that the court should have powers to make use and occupation orders in relation to certain real estate owned by the deceased or trusts associated with the deceased;

■ that adults should have the ability to contract out of estate

Continued on page 18

The wealthy – and their advisers –are using increasingly sophisticated asset-planning structures to protect their wealth

Judges in the US Supreme Court turn feral in a battle over copyright

Anthony Grant

I usually write about trusts and estates for LawNews but this week I am writing about a decision the US Supreme Court has delivered on the law of copyright.

As I think most readers know, I have an art tourism project in Matakana called Sculptureum which, incidentally, is ranked by Tripadvisor as one of the top four attractions in Auckland and one of the top five attractions in New Zealand. Among the many works currently on display is a portrait by Andy Warhol of the musician, Prince.

Andy Warhol made 16 different portraits of Prince, all of which were based on a photograph taken by Lynn Goldsmith. One of the works – the version I have on display – is known as Orange Prince

On 18 May 2023, the US Supreme Court held by a majority that Orange Prince infringes copyright in Lynn Goldsmith’s photograph.

Andy Warhol was probably the greatest portrait artist of the late 20th century and most of his portraits were based on photographs taken by others. The genre of art is called “appropriation art”.

After Prince died, Condé Nast wanted a picture of him for the cover of one of its magazines. It chose Orange Prince and didn’t pay Lynn Goldsmith for her photograph. When she complained, Condé Nast sued her, saying it was entitled to use the Warhol image as it constituted “fair use” of the photograph. We don’t have the doctrine of “fair use” in New Zealand but the analogous doctrine of “fair dealing.”

A copy of the Goldsmith photograph and of the cover of the Condé Nast magazine are shown left.

The District Court judge in the USA said the Warhol image “can reasonably be perceived to have transformed Prince from a vulnerable, uncomfortable person to an iconic, larger-than-life figure”. Readers can form their own conclusion but I suspect most would agree with that assessment.

In the same way, Warhol modified photographs of Marilyn Monroe and others and turned them into some of the most expensive artworks of all time.

But the majority Supreme Court decision says Warhol made only “modest alterations” to the photograph, suggesting anyone could have “cropped, flattened, traced and coloured the photo” as Warhol did. As a consequence, the claim of fair use failed.

This assessment shows no understanding of the transformative powers that Warhol had with

Continued on page 09

Readers who want to see the results of disinhibition in a judicial setting – when judges speak openly about each other without the constraints and conventions that politeness and propriety impose upon them – will find the judgments of Justice Sotomayor and Justice Kagan revealing

While the work has been held to infringe copyright, it can be publicly displayed

Left: A black and white portrait photograph of Prince taken in 1981 by Lynn Goldsmith. Right: An orange silkscreen portrait of Prince on the cover of a special edition magazine published in 2016 by Condé Nast.

Continued from page 08

portraiture. To take a few examples, in inflationadjusted terms a Blue Marilyn sold recently for US$195 million, a Turquoise Marilyn sold for US$113m, an Eight Elvis sold for US$136m and a Triple Elvis sold for US$101m. These are some of the highest prices ever paid for works of art.

The highest price Goldsmith is likely to get for her photograph can be measured in thousands of dollars – not millions. The highest price ever paid for a photograph was US$12m and few photographs have sold for more than US$1m.

Trenchant criticism

The case is interesting for the criticism the judges levelled at each other. Writing for the majority, Justice Sotomayor said Justice Kagan had “chosen to ignore” various facts; that her dissent was “stumped” and “mistaken”; it was “odd”; it was based on a “logical fallacy”; it was also based on “an interpretative error”; and it “misses the forest for a tree”. She said Kagan’s reasoning was so extreme as to suggest that the majority decision would “snuff out the light of Western civilisation, returning us to the Dark Ages”.

Justice Kagan – a former Dean of the Harvard Law School – was having none of this. Many of Justice Sotomayor’s criticisms of her were contained in footnotes. Kagan referred to the “fistfuls of comeback footnotes” and said “from top to bottom the

[Sotomayor] analysis fails”. She said it “misconstrues the law [and] misunderstands and threatens the creative process”. She said sarcastically that “It is a good thing the majority isn’t in the magazine business” since they are unable to identify a compelling image from an uncompelling one.

Kagan then launched into a lengthy diatribe on the majority’s ignorance of the way most artists in the visual arts and music world have been inspired by and/ or copied the works of others. She illustrated her thesis by referring to (among others) Irving Berlin, George Gershwin, Stephen Sondheim, 2 Life Crew, Mark Twain, Shakespeare, Vladimir Nabokov, Robert Louis Stevenson, Chuck Berry, Bill Haley, Jimi Hendrix, Eric Clapton, Haydn, Mozart, Beethoven, Stravinsky, Charlie Parker, Bob Dylan, Titian, Manet and Francis Bacon.

Psychologists use the term “disinhibition” to describe the actions of a person who behaves without the constraints and conventions that politeness and propriety impose upon us.

Readers who would like to see the results of disinhibition in a judicial setting – when judges speak openly about each other without the constraints and conventions that politeness and propriety impose upon them – will find the judgments of Justice Sotomayor and Justice Kagan revealing.

The outcome

Does the judgment mean I should take my Orange Prince off display at Sculptureum? The answer is “no.” Oddly, the majority decision states that “The court expresses no opinion as to the … display … of any of

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the original Prince Series works”, so while the work has been held to infringe copyright, it can be publicly displayed. The majority gave no explanation for this statement.

The majority decision appears to be based on the assumption that the photographer will be entitled to a modest sum for the use of her image but as I understand US copyright law, there is no compulsory licensing regime for artistic works.

As one commentator on the decision has written, “What if Goldsmith were to insist on being paid a billion dollars for a licence…? All of a sudden Goldsmith would have close to a veto over someone else’s artistic expression, or at the very least its media reproduction.”

The judges in the majority appear to have had no understanding of the significance of the absence of a compulsory licensing regime and how it could destroy appropriation art. As a commentator in The New York Times has said, the majority’s decision “may turn out to be the latest case where a Supreme Court judgment has effects far beyond what the justices had in mind”.

■

Anthony Grant is an Auckland barrister and trustee, specialising in trusts and estates ■

it is a good thing the majority isn’t in the magazine business

A senior Auckland barrister’s first-hand experience of appearing in the Supreme Court as a rookie

legal debate between colleagues.

Knowing your case

When the hearing got underway, it was immediately apparent that the judges were thoroughly prepared. They had digested the submissions and case authorities and were ready to begin the inquiry.

I use the word ‘inquiry’ intentionally because the judges seemed less interested in receiving submissions per se than in getting to the nub of the key issues – and getting there quickly.

Apparently, when Mike Tyson was asked by a reporter whether he was worried about Evander Holyfield and his fight plan he answered, “No, everyone has a plan until they get punched in the mouth.”

Andrew Steele

Our LawNews editor asked me to write about the experience of my first-ever appearance in the Supreme Court in the case of A, B and C v D & E Limited as trustees of the Z Trust SC 106/2022 – the so-called “Alphabet” case.

I’m not going to argue the merits of this case. The Supreme Court will inform us what the law is in due course. Instead, this piece is intended to enlighten readers about my experience, as a barrister with 30+ years of lawyering under my belt, appearing in the Supreme Court as a newbie.

Initially, it was somewhat daunting. The screen clothing the outside of the building immediately distinguishes it from surrounding buildings that are drab by comparison. When you walk in the main

entrance, you know the occasion is momentous.

Large copper panels encase the courtroom (which apparently takes its inspiration from the seed cone of a kauri tree), giving the room a uniquely Kiwi flavour.

I have been to the High Court of Australia in Canberra, the Old Bailey in Newgate and the Royal Courts of Justice in the Strand in London, and these courts give a totally different and more traditional “ye olde” or stately feel.

The overall impression is that this is a special and unique place and you had better lift your game to meet the gravity and importance of the occasion.

Even though the subject matter of the case involved appalling facts, counsel were friendly and collegial, reflecting I think that the matter was at the end of the judicial road. The issues had been distilled to the point where the initial battle had evolved into a

That brutish insight would seem to have little relevance to appearing in the Supreme Court – but it does. I got half-way through my oral submission “road map” when the questions started coming from the bench and, like the Wellington rain, they came from all angles and thick and fast. My carefully choreographed submissions become a distant memory as my theory of the case was given the third degree by five of our country’s best legal minds. My advice to the Supreme Court newbie is this: know all aspects of your case, including the jurisprudential underpinnings of your arguments, thoroughly. Test your theories with your colleagues and value the conflicting opinions that challenge your arguments. Think also about the wider societal implications of the principles you seek to persuade the court to accept.

If you don’t prepare in this way, then you may not be as ready as you would wish to be when the

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In the lower courts, one might focus more on the battle between the parties but once you are in the Supreme Court there appeared to be a shift away from a battle mentality to a focus on the orderly development of the law

Continued from page 10

judges’ questions come flying at you. Their probing is fair and purposeful, but that does not make it any easier. While there are no traps or hidden agendas, the questions will nevertheless test your theories and probe for possible unexpected consequences arising from your arguments. If you have not taken the time in your preparation to think deeply about the wider issues, then you could run the risk of offering shallow or, worse still, incoherent arguments in support of your case. I hasten to add that in our case, no party or counsel fell down that hole.

It was clear to me that the court is acutely conscious of its role in setting the law for perhaps many years to come and it genuinely seeks assistance from counsel to better serve that purpose.

So, in the lower courts one might focus more on the battle between the parties but once you are in the Supreme Court there appeared to be a shift away from a battle mentality to a focus on the orderly development of the law.

Reverting to less lofty observations, I was surprised by the humour and openly exhibited humanity of the judges. Given the power of the court, one might expect the judges to exhibit a starchy correctness or even sternness but instead one encounters friendliness, patience and courtesy.

The appeal

The case itself involves the worst kind of background. The appellants were children (two sons and a daughter) who suffered what the High Court held to be egregious verbal and physical abuse (and in the daughter’s case, sexual abuse) from their father when they were young and under his care.

After the father left the family home, he became estranged from the children right up until his death more than 30 years later. During the estrangement, the father knew his children needed financial and emotional support but gave none. Some 16 months before he died, the father gifted the bulk of his property into a trust, in part to thwart any possible claim against his estate by his children.

The issue before the Supreme Court was whether the law of fiduciaries could be applied so as to unwind the father’s gifting in some way so the children’s Family Protection Act claim would have property in the estate from which relief could be given.

I believe I am on safe ground in suggesting that the law of fiduciaries needed various adjustments or extensions before it could be applied to give the relief sought by the children. The contest between the parties revolved around whether those adjustments or extensions were appropriate as a matter of principle or whether there may have been other ways the law might respond to the children’s claim for relief.

After-thought

Some may view this article as obsequious, I say I’m calling it as I saw it. In my 30+ years of appearing in courts and tribunals here in New Zealand and in England, I’ve encountered my share of judicial curmudgeons. I flatter myself that I can, with objectivity, differentiate the good experiences from the bad.

As a final overall impression, I came away satisfied that the parties were thoroughly heard and understood. As advocates, can you ask for more than that?

A shout-out to my opponents, Lady Deborah Chambers KC, Issac Hikaka, Josie Beverwijk, Mike Phillips and Vicki Ammundsen. This first-class team didn’t just present an excellent appeal, they did it pro bono, illustrating the characters of each one of them. ■

Andrew Steele is an Auckland barrister, specialising in trusts and estates ■

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• junior or mid-level experience gained in private practice or in-house;

• broad commercial law experience, including consumer law;

• sound judgment in assessing and balancing legal risks;

• the capability to manage competing priorities and make decisions with confidence;

• the ability to build strong relationships at all levels and operate in a fast paced, dynamic environment; and

• a balanced, composed and positive approach.

If you’re the sort of individual who strives to always do the right thing for customers, team, our communities, and our business then we ought to connect.

Jo Lloyd jo.lloyd@countdown.co.nz

Working with Woolworths NZ | Me mahi tahi tatou ki Woolworths NZ

Our purpose is to make Kiwis’ lives a little better every day. We’re friendly, down-to-earth, and energetic – we work hard but we have a great time doing it, and we love what we do. There is plenty of scope for new ideas, lots of room for you to add value, and importantly, you’ll be working with a business that touches the lives of three million New Zealanders each week.

We are proud to be a Work 180-endorsed employer for all women, view the great work we do here

Come as you are | Nau mai, whakatau mai

We’re an equal opportunity employer and are committed to the principle of equal opportunity for all.

If you’re smart and good at what you do, let’s work together | Me mahi tahi tatou

ADLS appoints new council members

President Tony Herring has welcomed three new council members, saying they bring an extensive range of knowledge and experience to the ADLS table. The three new council members are: Jacque Lethbridge (appointed lawyer member), Luana Nickles (council appointee) and Andrée Atkinson (appointed non-lawyer member).

They join five current council members: Herring, Julie-Anne Kincade KC (Vice President), Samira Taghavi, Michael Wallmannsberger and Angela Parlane.

Jacque Lethbridge

Jacque is a senior commercial litigator who has practised in Auckland since 2004. She joined Martelli McKegg in 2019 where she heads the litigation team, after stints at two specialist restructuring and insolvency firms where she became the first female partner in both cases.

Throughout her career, Jacque has volunteered her time to the profession, including several years on the ADLS Council (2007-2011), the New Zealand Law Society (NZLS) board, chairperson of the Auckland Community Law Centre board and as a director of the Restructuring Insolvency and Turnaround Association of New Zealand (RITANZ).

Luana Nickles

Luana is an in-house employment lawyer with more than 17 years’ legal experience. She has worked in law firms across three jurisdictions – New Zealand, the UK and Australia. During this time, she acted for several large private- and public-sector clients, often in high-profile employment, discrimination and health and safety matters.

Luana (Te Whakatōhea and Ngai Tai) is passionate about supporting diversity, equity and inclusion. She is General Manager, Māori Workforce Outcomes & Capability at Fonterra.

Andrée Atkinson

Andrée is an FCA (Fellow Chartered Accountant) and has practised since 2000. After working for mid-tier accounting firms, she is now a consultant. Andrée holds several directorships, is actively involved with chartered accountants education and sits on the New Zealand Institute of Chartered Accountants (NZICA) Disciplinary Tribunal.

Letter to the editor

Compliance with the treaty

I have just completed the online application to renew my practising certificate. The very first matter, which I must answer in the affirmative to continue working as a lawyer, is something very similar to, “I undertake that I have complied with the fundamental obligations of lawyers as set out in section 4 of the [Act]”. In light of the discussions in recent editions between Gary Judd KC, Frazer Barton, and then the editor’s note in the 9 June edition, if the recommendations of the Independent Review Panel are adopted by a future government, it would be proper for the President to further clarify whether the Law Society believes that, by not complying with the Treaty of Waitangi, lawyers would be in breach of this undertaking which would be a matter that the new proposed independent regulator could enforce.

Nick Kearney Special counsel Davenports Law

Offices Available

Following some barristers retiring, we have three offices of varying sizes available for rent.

The Chambers share a refurbished floor (with separate areas) with Hussey & Co., a boutique forensic and general accounting firm. There are shared meeting rooms (a formal boardroom with video conferencing facilities and a less formal meeting room), and communal entrance and client waiting area. Telephones, internet connection, printing and secretarial services also available and some furniture available.

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

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

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

FAMILY COURT ASSOCIATES –Statutory Vacancy

Family Court Associate

Applications are invited from persons qualified for appointment as Family Court Associates.

Family Court Associates are appointed under section 7A of the Family Court Act 1980. They will undertake some of a Family Court judge’s workload, including decisions made at the early stages of proceedings and interlocutory hearings. In addition, a Family Court Associate will be able to exercise all the powers of a court Registrar.

The minimum statutory requirement to be appointed as a Family Court Associate is the holding of a practising certificate as a barrister, or as a barrister and solicitor, for at least seven years. Appointees must also be considered suitable by reason of their training, experience, and personality.

All appointees must also be able to demonstrate a range of clearly defined competencies, including:

• Impartiality, open-mindedness, and good judgment

• Personal integrity

• Awareness of Tikanga Māori and Te Tiriti o Waitangi

• Effective communication skills

• Connection to the community and an awareness of its diversity

Appointees will be required to demonstrate detailed knowledge of the governing legislation and associated family law statutes. It is also expected that candidates will demonstrate a high level of understanding as it pertains to children’s development and rights.

Appointment will be either part-time or full-time, with the salary and allowances set independently by the Remuneration Authority.

A Family Court Associate may be appointed for a term of not more than seven years and may be re-appointed for one or more further terms.

Deployment of Family Court Associates will initially be prioritised to Auckland and Christchurch. The expectation is that Family Court Associates will be available to travel and work at other court locations in response to peaks in demands as required, and the evolving needs of the family justice system.

Completed applications

Please email your completed expression of interest and statutory declaration form, copies of which can be found on the Ministry of Justice’s Statutory Appointments page here, a current curriculum vitae and covering letter to General.OLC@justice.govt.nz by 4:30pm Friday, 7 July 2023

When there’s a will, there’s a right way

WILLS ALL LEVELS WEBINAR

Wednesday 19 July

12pm – 1.30pm

Price from $110 + GST

Presenters Alison Gilbert, partner, Brookfields and Lucy Moyle, senior solicitor, Brookfields

Cross-leases: continuity and challenges

PROPERTY ALL LEVELS WEBINAR

This webinar will teach you the fundamental skills of will preparation, from the initial client meeting through to tips for execution. The webinar will also provide a brief case law update on decisions under s 14 of the Wills Act 2007.

Webinar 1.5 CPD hours

Tuesday 25 July 12pm – 1.30pm

Price from $110 + GST

Presenters Thomas Gibbons, principal, Thomas Gibbons

Law and Campbell Burrows, director, CKL Planning | Surveying | Engineering | Environmental

Cross-leases continue to throw up a mix of survey, planning and legal issues. Presented by a lawyer and a surveyor, this webinar will canvas the key areas to watch out for.

Effective participation in the criminal justice system

Livestream | In Person

CRIMINAL ALL LEVELS

SEMINAR

Tuesday 25 July 4pm – 6.15pm

Price from $150 + GST

Presenters Julie-Anne Kincade KC, Robin McCoubrey; Professor Warren Brookbanks; Dr Jeremy Skipworth and Sally Kedge

Commentator Justice David Collins

This seminar will analyse the Court of Appeal’s decision in Hanara and look at practical ways of navigating issues arising in the criminal justice system.

Chair Julie-Anne Kincade KC

NZBORA: updates and uses

ALL AREAS WEBINAR ALL LEVELS

Engaging with the media

ALL AREAS

ALL LEVELS

SEMINAR

Livestream | In Person

2 CPD Hours

Tuesday 1 August 4pm – 6.15pm

Price from $140 + GST Presenters

Justice Simon Moore; Julie-Anne Kincade KC; Edward Gay; Hannah Norton and Elizabeth Binning

Electronically monitored bail

CRIMINAL WEBINAR

ALL LEVELS

Webinar 2 CPD hours

Thursday 25 July

4pm – 6.15pm

Price from $140 plus GST Presenters Kris Gledhill, Professor, School of Law, Auckland University of Technology

This webinar will focus on innovative and practical ways to use the NZ Bill of Rights Act.

Chair Stewart Dalley, partner, D&S Law

What is the role of the media in legal cases? How should lawyers engage with journalists? What does a court do, when faced with competing considerations?

Chair Marie Dyhrberg KC

Webinar 1.5 CPD hours

Wednesday 9 August

5pm – 6.30pm

Price from $110 + GST Presenters Brendan Hurley and Prashant Rai

With perspectives and practical insights from Bail Support Services and EM Operations from the Department of Corrections, learn how to streamline the process of applying for EM bail.

Chair Julie-Anne Kincade KC

Events

Featured events

Connecting New Zealand lawyers

Central Auckland After 5

Wednesday 12 July

5.30pm – 7.30pm Pilkingtons, 41 Shortland Street, Auckland Central

Sponsored by MAS

Tauranga After 5

Wednesday 19 July 5.30pm – 7.30pm Macau Bar, 59 The Strand, Tauranga Central

Sponsored by MAS

South Auckland Lawyers’ Lunch

Tuesday 8 August 12.30pm – 2pm

Woodside Bar Kitchen Functions, 639 Great South Road, Manukau City Centre, Auckland

Sponsored by MAS

East Auckland Lawyers’ Lunch

Wednesday 23 August 12.30pm – 2pm

Goode Brothers, Shop 36/588 Chapel Road, East Tāmaki, Auckland

Upcoming

September

Office available in prestigious Bankside Chambers

Sunny 2-roomed 36.1sqm office now available in Bankside Chambers. With Rangitoto Island as your backdrop, and lots of natural light, this office space is excellent for a barrister, junior and/or EA. For information, please email the Chambers Manager at eleni.balmer@bankside.co.nz

Thinking of Selling Your Law Practice?

We have sold 5 law practices in the last 12 months and have plenty of buyers. For a free no obligation business value appraisal contact me today.

WILL INQUIRIES

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

LawNews: The no-hassle way to source missing wills for $80.50 (GST Included)

DE JONG

Teunis also known as Tony

• Late of Henderson, Auckland

• Zoo keeper

• Aged 76 / Died 07’05’23

GILL

Travis Jon

• Late of 85 The Centre, Waipu

• No legal relationship

• Farm hand

Legal Executive

MORTON TEE LTD, Takapuna, Auckland

About us

Morton Tee was founded in 1986 in the heart of Takapuna. We are a wellestablished small firm with a developed reputation for capability, reliability and professionalism. We have a well-established and longstanding client base. We are seeking an experienced Legal Executive to join our team and continue our high standard of client care with professionalism and approachability. Please forward expressions of interest along with CV and academic records to our Practice Manager Cristine Tee ctee@mortontee.co.nz

Qualifications & experience

• Probate and Estate administration

• Client Trusts

Tasks & responsibilities

• Property and Conveyancing

• Willingness to form excellent relationships with our clients and staff

• The ability to manage files with minimal supervision

Benefits

• A salary commensurate with skills and experience will be offered to the successful applicant

• Mentoring and ongoing professional education

• On site car parking

• Flexible working hours

MIDGLEY

Richard Mark

• Late of 15 Woodlands Crescent, Browns Bay, Auckland

• Unemployed

• Aged 55 / Died between 01’03’223 and 03’03’23

NEHO OR ERAMIHA (NEE RAPANA)

Puti Tamati

• Aged 42 / Died 18’05’23

KERSEY

Joanne

• Late of Tinopai

• Married

• Social worker

• Aged 63 / Died 03’05’23

LEOTA

Lisiate Felise Konelio also known as Lisiate Siaumau Lisiate, Siaumau Leilua and Siaumau Lisiate Leilua

• Late of 14 Nash Road, Mt Roskill, Auckland

• Storeperson

• Aged 41 / Died 12’01’23

• Late of 11 Norana Avenue, Mangere, Auckland

• Widow

• Housewife

• Aged 73 / Died 21’01’97

Continued from page 05

do. The issue here is not MSD, but rather the contract regarding the provision of care. Contracted care providers are not required to offer care to a resident who will not meet the cost of care.

■ You pay the same for long-term residential care wherever you are in New Zealand. This is not correct. The rules about residential care subsidies are the same nationwide. However, the maximum contribution will depend on the region in which care is provided. This amount is notified annually in the Gazette

■ Family loans are disregarded for residential care subsidy purposes. This is not correct. A loan is an asset that must be declared for means-testing purposes and will also be taken into consideration for income assessment purposes. If interest is not charged on a loan, whether the loan is to a family member, third party or trustees of a trust, MSD can assess the income that was forgone.

This treatment of loans followed the Court of Appeal decision in Chief Executive of the Ministry of Social Development v Broadbent [2019] NZCA 201, where the Court of Appeal held that MSD’s prior policy of attributing trust income (real

Continued from page 07

entitlements and claims;

■ that adults should have the ability to settle entitlement or claims disputes without having to resort to the courts;

■ that the 12-month limitation period for bringing a claim against an estate remains broadly the same;

■ that there should be an express duty on personal representatives to disclose certain information to those who might bring a claim and to disclose all relevant information to the court;

■ that affidavit evidence should be preferred in court and that the court should retain a flexible approach to awarding costs; and

■ that the law to be applied to the succession of a deceased’s estate should be the law of the deceased’s last habitual residence.

Government priorities

On 15 June 2022 the government issued its response to Report 145. It acknowledges the recommendations contained in the report and accepts, in principle, the necessity of reform. However, it also notes that reform will be a significant undertaking, will take a “period of years” and will need to be balanced against other government priorities.

If ultimately enacted, the new Act would address some

or notional) to applicants who had made gifts to trusts by way of forgiveness of debt. As stated at [98]: It is plain nonetheless that the controversy between the Chief Executive and Mrs Broadbent is not finally resolved by that answer. That is because, when the Authority focussed directly on income from trust assets in calculating deprived income, it was in error. It should have focussed instead on the deprived income (if any) of the debt back, that is, any interest free component. We accept Ms Aldred’s submission that the Authority probably did not have sufficient evidence before it to resolve whether the $27,000 “gifts” were deprivations at all (for example, Ms Aldred submitted there could have been no depravation (sic) in substance if the Broadbents enjoyed free accommodation – see above at [65]), and if they were, whether they were deprivations of property or income or a mix of both. It follows that when reconsidering its determination in accordance with the judgment of the High Court, the Authority must also undertake a further factual inquiry into these matters. ■

Vicki Ammundsen is a director and notary public at Vicki Ammundsen Trust Law. She presented a paper on Residential Care Subsidies at ADLS’ recent Cradle to Grave conference ■

fundamental issues with the current law. It would bring together several related issues and claims into one, modern piece of legislation. This would, hopefully, increase clarity and certainty and improve access to the law for interested parties.

There are some issues with the commission’s proposals, and it remains to be seen how they will apply in practice. However, Report 145 largely represents a balancing of property rights and testamentary freedom on one hand, and meeting obligations to family and whānau on the other.

Most limits on testamentary freedom proposed by the commission appear well reasoned and justifiable, although there will be those who disagree.

Given the uncertainty as to when (and even if) the law will change, it is difficult to provide much guidance to clients as to how to take the proposals into account. However, it is important that advisers and their clients are aware that the law will almost certainly change and in a way that may impact how clients wish to structure their affairs.

Once the new Act is in force, it will likely be harder for clients to structure their affairs to avoid obligations to their families. In the meantime, it is the courts that will likely plug any gaps they identify, to ensure justice is done.

Report 145 can be found here ■ Silvia McPherson is a partner and Daniel McLaughlin is a senior associate at Dentons Kensington Swan. Connor Seddon, a solicitor at the same firm, also contributed to this article ■

Anecdotally, there has been an increase in trust and estate litigation in recent years

Gifts outside the fiveyear gifting period cannot be spread forwards or backwards