LawNews - Issue 23

NEWS Jul 16, 2021 Issue 23

Inside ■ TRUST LAW

How to deal with Addleman P03

■ THE COURTS

Why deficient IT risks nobbling justice P05

A blueprint for navigating adls.org.nz

ADDLEMAN

Contents 03 TRUSTEES BENEFICIARIES PRIVILEGE

Addleman: suggestions for trustees

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

05 BACKLOGS PAPER FILES MANAGEMENT

Outdated technology puts justice at risk

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

06 FREE SPEECH CRIME DEFINITION

Battlelines drawn on proposed hate speech law

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14-15 FEATURED CPD

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16 CPD IN BRIEF

ADLS President and Criminal Law committee weigh into hate speech debate

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Cover: wsmahar/Getty Images

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Jul 16 2021

Photo: Tanya Constantine / Getty Images

Issue 23

TRUST LAW

What trustees can do about Addleman The suggestion that a trustee can’t get legal advice without having to disclose it to beneficiaries will deter well-qualified people from acting as trustees

are entitled to see it. There is a secondary pathway by which beneficiaries can achieve the same outcome, the so-called ‘joint interest exception’. Underlying this doctrine is the theory that the legal advice is obtained for the benefit of both the trustees and the beneficiaries so both are entitled to see it.

The Supreme Court’s decision has cast doubt on whether legal advice trustees pay for from their own resources can be withheld from beneficiaries. This arises from one sentence in the decision: “Advice paid for by a trustee may nevertheless be trustee information.” Elsewhere in the decision it appears that trustees may be obliged to provide beneficiaries with what the Supreme Court calls ‘trustee information’.

Unhelpfully, the court did not give any guidance on the circumstances in which advice a trustee pays for from nontrust resources can be withheld from beneficiaries.

Helpful suggestions

Below are some actions trustees might take to reduce the prospect that advice might be disclosed to beneficiaries. It isn’t legal advice; these are merely some suggestions that are intended to be helpful in response to numerous requests made at the webinar and I accept no responsibility for them.

■ Trustees should never use trust monies to pay for legal advice about criticisms beneficiaries have made about Anthony Grant them.

After my recent article on the Supreme Court’s decision in ■ Trustees should consider seeking oral – and not written – Addleman, ADLS asked me to present a advice about criticisms of their conduct webinar on the case. and how best the trustees should The Supreme respond to the criticisms.

It attracted a large audience. It’s clear Court’s decision from the feedback that many ADLS ■ When instructing a legal adviser, a has cast doubt members want more information about trustee might say something like this: on whether actions that might be taken to reduce the “Although it has been said that ‘the risk of trustees having to give beneficiaries courts can expect trustees not to seek legal advice copies of legal advice which the trustees advice as to how to resist litigation’, I trustees pay for have obtained concerning criticisms and consider I am entitled to pay for advice from their own complaints beneficiaries have made about from my own resources to learn whether them. resources can be a criticism made of me might be justified For readers unfamiliar with the and, if so, what I might do about it. Your withheld from Addleman decision, here’s why it’s advice is intended for me alone and it is beneficiaries important. not intended to be made available to the It is increasingly common for beneficiaries.” beneficiaries to criticise trustees. When the ■ Use a corporate trustee where one threats are serious enough, the trustees will want to know person is a shareholder and another is a director. The whether the criticisms have substance and, if so, what might shareholder might seek advice of criticisms made of the be done about them. They will want the advice they obtain to company. be protected by privilege so it can’t be seen by beneficiaries.

The courts have long held that when trustees obtain legal Continued on page 04 advice and pay for it with monies from the trust, beneficiaries 03

Continued from page 03

any advice a trustee receives in such The shareholder might say, “although I have circumstances is not to be disclosable to no role in the management of the company, I beneficiaries if the trustee has paid for the am aware it has been the subject of criticism advice from non-trust resources. and threats by a beneficiary. I seek advice in “If, contrary to this clause, a beneficiary seeks my capacity as a shareholder of the disclosure of the advice, that person will cease company, with no role in its management, to to be a beneficiary as from the date of the learn whether the criticism may have any request and will have no right to receive any validity. The advice is not being sought on benefit from the trust.” behalf of the company’s director or the Anthony Grant trust’s beneficiaries.”

The last words of that passage are designed to get around the unusual wording of the term ■ Arrange for a third party to seek the advice.

■ Obtain trustee liability insurance but not with monies paid ‘beneficiary’ in the Trusts Act 2019.

The suggestion that a trustee can’t get legal advice directly by the trust. Advice to a trustee from a without having to disclose it to beneficiaries will deter well professional indemnity insurer ought never to be qualified people from acting as trustees. It is in the interests considered advice that is sought for the benefit of of the community that actions should be taken to restore a beneficiaries.

■ Incorporate an anti-Addleman clause in trust deeds. Such level of confidence that could be lost by prohibiting trustees from being able to get confidential advice on the effect of a clause might read: their actions. ■ “In recognition of the problems that exist in recruiting suitable people to be trustees of the trust if legal advice Anthony Grant is an Auckland barrister specialising in that a trustee receives in response to criticisms of that trusts and estates law person’s conduct is to be made available to beneficiaries, On Demand webinar available soon, click here ■

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It is in the interests of the community that actions should be taken to restore a level of confidence that could be lost by prohibiting trustees from being able to get confidential advice on the effect of their actions

Jul 16 2021 Issue 23

THE COURTS

Outdated technology

putting justice at risk

Jenni McManus The courts’ IT system is antiquated and urgently needs significant investment.

The need is particularly pressing in the Family Court, where there is a ‘troubling’ backlog of cases, Chief Justice Dame Helen Winkelmann told an ADLS breakfast in Wellington last week.

“Of all the courts, the Family Court struggles the most with the lack of proper IT support, particularly with the lack of document management systems for its cases,” she said. While businesses have taken these systems for granted for the past 30 years, the courts are still operating without them. Paper filing systems are not efficient or safe and while steps are being taken to fix the problem, “the work on the underlying systems is not going as fast as I would wish”.

Justice Winkelmann’s comments came during what she described as a ‘whistle-stop tour’ for attendees of her work program for the next 12 months.

This included updates on initiatives she discussed at a similar breakfast for ADLS members in Auckland in March.

Her broad themes for the next five years are building resilience, addressing the changes in criminal and family justice, facilitating access to justice, connecting the courts to the community and diversity, she said.

On the vexed issue of long-awaited IT upgrades, electronic filing will soon be universal in the courts but only some will operate electronic files. The remainder will continue to use paper files. “The true horror of that is while you’re blithely filing electronically,

If I were to give an aspiring young lawyer one piece of advice about judicial appointment, I would say ‘don’t get stuck in one tiny part of legal practice. Build your skills as a lawyer and also build your skills as a human being’

The full digitisation of the courts awaits a significant investment and I would say the need is pressing everything will be printed out by some poor person in the registries,” she said.

“The full digitisation of the courts awaits a significant investment and I would say the need is pressing.”

Justice Winkelmann gave no indication of the amount of investment required but said there was a cost in doing nothing.

“The state of the IT support for the courts does not merely inconvenience and frustrate and exhaust registry staff and judges and practitioners. It has human costs for litigants as papers and files are lost and important milestone events overlooked.”

Also putting pressure on the system is that the courts are running huge backlogs, partly (but not entirely) because of the pandemic. The District Court went into lockdown with heavy backlogs in its criminal, civil and family divisions, particularly in Auckland and Manukau. The number of active jury trials nationally has risen 79% in the past four years, partly because of the higher rates of election but also because of the creation of new offences and the increasing time cases were taking to get to court.

The District Court is undertaking an extensive review to simplify and improve its processes and, at the same time, is beginning to implement its Te Ao Marama program in its criminal

division – the gradual mainstreaming of the best practices of New Zealand’s 13 specialist and therapeutic courts.

The first community-connected Te Ao Marama court, aimed at rehabilitating the offender while supporting the victim, will be in Gisborne and the Ministry of Justice has committed to rolling out the model across the country.

Community-connected courts will help ensure the decision-maker has all the information he or she needs to act justly, Justice Winkelmann said. “It will have implications for every aspect of the criminal justice system, from bail through to sentencing. It will impact on the Family Court particularly in the area of care of children and care and protection. It will even impact in the courthouses we build from this point on. With the Ministry of Justice, we are joining with iwi to reimagine courthouses.”

The 13 models of specialist and therapeutic courts have become centres of excellence within our system, she said, and have proven that the therapeutic model works.

“They prove we can with those same processes improve the outcome by working to address the drivers of crime.

But this proliferation of therapeutic models can’t continue. They serve only a small part of those people who come into our criminal justice system.

This is literally postcode justice in operation. These courts introduce an inconsistent treatment based on where you are arrested and whilst you can tolerate that inconsistency – it has to be tolerated so you can test ideas– once the concept is proven, its continuation beyond that is fundamentally inconsistent with the rule of law.”

The courts’ response to Covid proved that the justice system could change and improve, she said, and it didn’t inevitably mean spending large amounts of money. “But it does require us to believe that change is possible and to be prepared to work with others towards it.”

On the issue of diversity within the judiciary, Justice Winkelmann noted that if one focused on gender, the courts were approaching gender equity.

In fact, at one point there were more women than men on the Supreme Court. And with 76 new judicial appointments to be made over the next five years, the profession needed to tell the story of diversity to make people with legal experience believe the judiciary was a career they could aspire to.

They also need to know what makes a good judge, she said.

Legal ability and hard work, certainly, but it’s also about humility, empathy and a knowledge of your community.

“If I were to give an aspiring young lawyer one piece of advice about judicial appointment, I would say ‘don’t get stuck in one tiny part of legal practice… Build your skills as a lawyer and also build your skills as a human being’.” ■ 05

Battle lines drawn on

proposed hate speech law Terms such as ‘threatening’, ‘abusive’, ‘insulting’, ‘inciting’ and ‘stirring up’ are highly subjective and liable to be interpreted in different ways, depending on who’s doing the interpreting Rod Vaughan Trenchant criticism of the government’s beefed-up hate speech legislation shows no signs of abating.

Since last week’s LawNews story voicing the concerns of lawyers and academics worried about potential curbs on freedom of speech and the likely unintended consequences of the proposed new law, others have joined the fray.

ADLS’ Criminal Law committee strongly opposes the government’s plans, with two of its members, both senior criminal QCs, urging politicians and the Ministry truthfully say that these are the government’s values.

“It is unclear that the policy is descriptive enough of Justice to back off. to be effective practically. The government has spoken Committee convenor and ADLS President Marie Dyhrberg QC describes the proposed censorship as “a of combatting terrorism with these laws, but terrorism’s bucket of cold water on the kindling of our democracy. causes are much more multi-dimensional than hate speech. People start chatting in dangerous online “Are we such a juvenile society that we require communities in the first place for reasons that go deep the rule of law to make our political discourse safe into the nature of politics and society. enough and decent enough to handle?” she asks. “Or “When I think about do we have the collective [examples of speech intelligence and integrity to These laws were not inciting violence throughout prove ourselves worthy of inspired by cancel culture history], the most harmful, freedom?” but by the very real and insidious hate speech is Julie-Anne Kincade QC, actually spoken by those another committee member ghastly experience of the in power. How do you and a member of the ADLS Holocaust legislate against that?

Council, questions the The government seems to government’s ability to cure want to encourage ‘social the divisiveness in society cohesion’ with these new laws, but this sort of thing by such a “knee-jerk, navel-gazing response”. cannot be forced. Social cohesion is fostered not only “We must think about these laws beyond a by education and community outreach but also by politician’s soundbite and pat on the back,” she says. protection of freedom of speech, a right to protest and “The Ministry of Justice proposal says the new [demonstrate] legitimate anger, and a right to private laws seek to protect ‘our values of inclusiveness and and intimate conversation. diversity’ but without proper investment in education, “A national crisis such as terrorism needs to be community outreach and reducing inequities and responded to with clarity in the law. The government marginalisation on all fronts, we cannot proudly and

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should not fall into the trap of passing questionable and controversial policies while citizens are too distracted to engage and develop an adequate response,” Kincade says.

Another committee member, barrister Iswari Jayanandan, says there is no reason to believe the widening of our hate speech laws won’t have the same results as similar legislation in the UK, where people have been jailed under the Public Order Act 1986 and the Communications Act 2003.

Commonly known as the ‘stirring up’ law, a hate speech offence under the Public Order Act includes inciting racial hatred or stirring up hatred on the grounds of religion or sexual orientation. Section 127 of the Communications Act makes it an offence to send an ‘indecent, obscene, or menacing’ message over a public electronic communications network.

Recent cases in the UK highlight some of the key flaws within the legislation, she says. In 2014, a 21-year-old man was jailed for six weeks for posting an ‘inappropriate’ comment on a Facebook news article about the stabbing of a local school teacher. He was charged under the Communications Act with “having sent by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing nature”. A month later, another man was imprisoned for eight weeks for his online comments regarding the same article.

Lawyers and human rights campaigners in the UK have raised concerns about the number of people who have been jailed simply for causing ‘offence’. The big issue is whose definition of ‘hate’ and ‘offence’ is used to prosecute people since no definition exists under international law. Will we be arresting and jailing people simply for making tasteless remarks?

Jayanandan says because our legislators, as in the UK, want to leave the police to interpret the meaning of ‘hatred’, this could result in unfair pressure to prosecute all instances of ‘hate.’ “We have seen a similar thing happen with the family violence and sexual offending policies,” she says.

Logical move Of those spoken to by LawNews, the Dean of the Auckland Law School, Professor Penelope Mathew, was the most upbeat about the proposed legislation.

Speaking as an academic and not as a representative of the law school, Mathew endorsed the

Continued on page 07

Photo: Russell Monk / Getty Images

CRIMINAL LAW/HUMAN RIGHTS LAW

Jul 16 2021 Issue 23

Continued from page 06

the proposal to use the word ‘hatred’ and whether this will be easier to understand.

“I suspect hatred will be more easily understood and viewed as a relatively high threshold as compared with hostility, ill-will, contempt and ridicule. Ultimately, however, people need to understand what harms are caused by hate speech, the limitations to the normal position in a democracy that speech is best met by more speech, and the problems posed for democracy by speech that marginalises groups based on characteristics such as race or religion. That is a task for education.”

idea of removing hate speech from the Human Rights Act and place it into the Crimes Act, saying it is “logical and in line with the recommendations of the Royal Commission.

“The new offence would make it a crime to intentionally stir up or maintain or normalise hatred against groups defined by protected characteristics through being threatening, abusive or insulting, including by inciting violence.

“This seems a reasonable approach to test the intended outcome of the recommendation of the Royal Commission Problematic language by asking the public whether it thinks the change will indeed produce that outcome.”

Dr Jane Calderwell Norton, a senior lecturer at the Auckland So what is her take on Opposition parties who have Law School with a special interest in discrimination law, is condemned plans to make hate speech a criminal offence and concerned that defining hate speech will prove to be an almost introduce harsher penalties? impossible task.

ACT leader David Seymour has condemned the legislation “The legislation does not have a concise and unambiguous as “a huge win for cancel culture which will create an even more definition of hate speech,” she says. “I am not sure one is possible divided society”. since human language changes and intention, meaning and But Mathew says Seymour’s comments ignore the fact that impact depend on the context, and one person’s hate speech is the proposals seek to alter legislation that pre-dates so-called another person’s political opinion. cancel culture and that the legislation reflects international laws “I have concerns about the proposed legislation because it which New Zealand and the vast majority of the rest of the world continues to use problematic language such as whether the have accepted. words are ‘insulting’. If hate speech is about preventing harm to “These laws were not inspired by cancel culture but by the people, any hate speech legislation needs to be carefully crafted very real and ghastly experience of the Holocaust, when human so that it doesn’t capture unpopular or offensive speech that beings were murdered on the basis of characteristics that does not cause serious harm.” they could not and/or should not have had to change and Nazi Calderwell Norton agrees with many other commentators propaganda fuelled these crimes. who refute suggestions that the Christchurch mosque terror “The attempt to respond to the Christchurch killings and the attack was triggered by hate speech. “I am not clear how role of social media in that event can hardly be dismissed as expanding our criminal hate speech provisions would have cancel culture.” prevented the mosque terror attacks. It can also be the case that But what exactly is the proposed legislation trying to fix, given hate speech prosecutions can turn a person into a martyr and the Christchurch killings were not triggered by hate speech but further radicalise their followers who think there must be truth by the actions of someone who was already radicalised? to what the person is saying if the government is trying to shut it “The Christchurch killer livestreamed his actions, which could down. This has been the case overseas.” inspire copycat actions and may in fact have done so,” Mathew She says freedom of expression has been a hard-won right says. with many countries still not allowing it, singling out religion “The Royal Commission discussed research regarding as a case in point. “I do have some reservations about any the way that radicalisation and acceptance of violence can criminal offence that potentially prevents people from criticising occur through participation in groups, including online, where religion. There have been cases in Europe where people have extremist material and role models are found. The commission been criminally convicted or had their films and artwork seized also discussed the Christchurch killer’s own online activities and because they have insulted a religious figure. noted the plausibility that his accessing of extremist content “I worry about hate speech legislation being used to prevent contributed to his actions on 15 March 2019. people from criticising religion or religious leaders. However, “The legislation is clearly trying to meet the challenge given that the proposal looks to expand hate speech coverage identified by the Royal Commission to develop appropriate to sexuality and gender, religious leaders who preach against responses to harmful behaviours which are effective in limiting gender fluidity or homosexuality could also be caught up in this their occurrence and frequency but which do not, at the same criminal provision. time, exacerbate divisions.”

“It could also make religious holy texts that criticise other But on the vexed question of how hate speech might properly religion and their adherents unlawful. Any new legislation would be defined, Mathew concedes that it’s a tricky area.

“It certainly is a fraught issue. The government is explicitly Continued on page 18 asking for feedback on many aspects of the proposals, including

Marie Dyhrberg QC

Julie-Anne Kincade QC

Pene Mathew

Jane Calderwell Norton

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CONTRACT LAW

Review needed for ‘no oral modification’ clauses It is not surprising that commercial actors wish to minimise the risk of litigation Jeremy Bell-Connell & Hermione Kemp Jeremy Bell-Connell ‘No oral modification’ (NOM) clauses are commonly found in commercial contracts and, if enforceable, carry significant force.

Yet the legal position in New Zealand relating to such clauses is far from established. A recent decision of the Singapore Court of Appeal, Charles Lim Teng Siang v Hong Choon Hau, has reignited the debate.

NOM clauses aim to restrict the contracting parties from varying a contract unless certain conditions are met. They generally state that all variations “must be agreed, set out in writing and signed on behalf of both parties before they take effect”.

In Charles Lim Teng Siang the agreement contained a NOM clause which stated: “No variation, supplement, deletion or replacement of any term of the SPA shall be effective unless made in writing and signed by or on behalf of each party.”

The contract related to the sale of 35 million shares. The parties never performed their obligations under the contract.

Three and half years after completion date the vendors commenced proceedings against the purchasers, claiming damages for breach of contract. The purchasers alleged the parties had orally agreed to rescind the agreement by phone before completion date. This vendors denied this.

New Zealand position There are only a handful of reasoned decisions on this subject in New Zealand and even fewer from the higher courts. The issue has arisen in two cases before the Court of Appeal; however, in neither case did the court substantively address the legal issue of whether NOM clauses should be enforceable and no consideration was given to the significant body of English cases addressing the issue.

The Supreme Court was less equivocal in Savvy Vineyards v Kakara Estate Ltd. Faced with a NOM clause, the court held that “in any event, we do not accept that such a clause deprives the parties to a contract of the ability to vary it otherwise than in writing, albeit that it may be of distinct evidential significance”.

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Hermione Kemp

In this context, the elevation of contractual autonomy comes at the expense of commercial certainty

However, that was the full extent of the discussion, so the court hardly grabbed the bull by the horns.

The approach in New Zealand appears to reflect that of the English Court of Appeal in Globe Motors Inc and ors v TRW Lucas Varity Electric Steering Ltd: that a contract can be varied orally, and the enforceability of that variation rested on the intentions of the parties, given all the available surrounding evidence. If the parties’ subsequent intention was to vary the contract despite a NOM clause, then the courts would not stand in the way of the parties’ autonomy.

But since that decision, the Supreme Court of the United Kingdom (UKSC) decided to settle the position in England and Wales in Rock Advertising Ltd v MWB Business Exchange Centres Ltd. The UKSC decided that contractual certainty should be given primacy and determined that NOM clauses were enforceable. The decision has attracted a lot of attention.

The arguments against New Zealand’s position are found in this case. Ultimately, the majority’s main conclusion was that “the law should and does give effect to a contractual provision requiring specified formalities to be observed for a variation”. The court found there were ‘legitimate commercial reasons’ for parties to agree to NOM clauses: ■ NOM clauses prevent attempts to undermine written agreements by informal means; ■ oral variations can gives rise to misunderstandings and parties acting at cross-purposes; ■ NOM clauses avoid disputes about the actual intention of the oral variation and the exact terms of that variation; and ■ a measure of formality in recording variations allows for easier internal compliance within corporations.

On the issue of the parties’ contractual autonomy, the court found that “party autonomy operates up to the point when the contract is made, but thereafter only to the extent that the contract allows”.

Singapore’s response In Charles Lim Teng Siang, the Singapore Court of Appeal addressed the arguments in Rock Advertising Ltd head on. It adopted the more orthodox position that “…in the absence of statutory provisions mandating formalities for contracts, the court should give effect to party autonomy as the paramount consideration, and uphold the parties’ oral agreement to depart from a NOM clause, express or implied, if the same can be

Continued on page 09

Jul 16 2021 Issue 23

Continued from page 08

proved”.

But what of other formalities imposed on contracting parties, such as the requirement for certain contracts to be in writing or for agreements that need to be in a prescribed form (such as contracts for the sale of land)?

The Singaporean Court distinguished these restrictions on the basis that “statutory provisions which impose mandatory formalities for contracts are enacted by the legislature to achieve certain policy goals at the expense of party autonomy”.

The principle that policy aims are a matter for the legislature and not the courts is in its twilight. There is no such thing as a policy-neutral legal principle, whether it is developed by the courts or imposed by the legislature.

The Singapore Court’s elevation of party autonomy as the paramount consideration is itself a philosophical position, developed at a time when laissez-faire philosophy reigned supreme in the British empire.

NOM clauses aim to restrict the contracting parties from varying a contract unless certain conditions are met

Time to rethink In this context, the elevation of contractual autonomy comes at the expense of commercial certainty. There may be a distinction, from 10,000 feet, between the legal effect of a NOM clause and the evidential difficulties that arise in proving the oral variation.

But that ignores the reality on the ground.

Due to the increasing complexity of the commercial world and the enormous amount of written material involved, modern commercial litigation is time-consuming and expensive.

Determination of evidential issues, such as what was said on a phone call, occurs at the end of a long, costly process, when cynical defendants may have achieved a strategic advantage.

In this context, it is not surprising that commercial actors wish to minimise the risk of litigation. In our view, such aims outweigh the very limited (tangible) benefit of allowing parties to orally vary a contract in the face of a NOM clause.

But what about situations like Charles Lim Teng Siang? Would it not be an injustice to enforce a NOM clause where the parties had agreed, over the phone before completion date, to rescind the contract?

The situation was further coloured by the fact that three and a half years then passed before the vendors sued for breach of contract.

As mentioned in Rock Advertising Ltd, the safeguard against injustices in such cases lies with the doctrine of estoppel. This doctrine is not so broad to destroy the advantage of a NOM clause, but at the same time it offers protection in situations where the parties have clearly acted upon the oral variation as if it were valid. ■ Jeremy Bell-Connell is a senior associate and Hermione Kemp a law graduate at Dentons Kensington Swan ■

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Briefs RIP Vector v Bay of Plenty

DEAN, LAW SCHOOL

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AUT is a vibrant, achievement-oriented and rewarding place to work. We seek individuals who value diversity and work inclusively, with the ability to listen, connect, collaborate, communicate and influence.

Please visit https://careers.aut.ac.nz/jobs (ref: 77849) for further information and to access the role’s extensive candidate information handbook.

Closing date for applications is Sunday 8 August.

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Buddle Findlay notes the Supreme Court has clarified significant issues of contractual interpretation in its decision handed down this week in Bathurst Resource Ltd v L&M Coal Holdings Ltd [2021] NZSC 85. The appeal gave the court the opportunity to clarify whether evidence of the parties’ conduct before and after contractual formation can be used to interpret contracts, as well as on what basis the courts should imply terms into contracts. The court reached a unanimous position on law as it should apply to those issues, although it was split 2:3 on the result on the facts of the case.

Bleak news for business NZIER’s Quarterly Survey of Business Opinion says the difficulty in finding skilled staff is the worst it’s been since 1976. A net 24% of those surveyed say they’re planning to hire more people, up from 20% in the March quarter, and a record 70% say they’re having trouble filling skilled positions. A net 57% say even unskilled people are difficult Businesses to source.

Independent economist Tony seriously need Alexander says the labour market is to look at which the tightest it has been in 50 years customers and an lack of customers is much they must stop less of an issue for businesses. Only 33% cited that as their main reason servicing for not being able to raise output.

“Businesses seriously need to look at which customers they must stop servicing (the lowest-yielding ones), which products to drop, which markets to abandon and whether they can even stay open, potentially burning through their remaining capital,” Alexander says. “The optimal move for some is to close up now and preserve capital. For some, the best move will be to invest in outright labour-replacing technology and processes.”

Customer demand is likely to continue growing for the next few years and a net 53% of businesses say they plan raising prices in the next three months.

Climate change move Europe has produced a blueprint for climate change, including a nineyear shift away from fossil fuels. If it is accepted by EU members and the European Parliament, the plan will be a major step towards a global goal of reaching a carbon-neutral economy by 2050.

The most radical proposal would impose tariffs on some imports from countries with less strict rules on protecting the environment. And if the plan is accepted, airlines and cargo ships will require cleaner fuel.

Jul 16 2021 Issue 23

Brief Borrowdale decision reserved The Court of Appeal has reserved its decision on an appeal brought against the Crown by former parliamentary draftsman Andrew Borrowdale who argues that the Director-General of Heath did not have the power to put New Zealand into lockdown in March last year.

Borrowdale won his case in the High Court which found the first nine days of the lockdown were justified but illegal. He is now seeking a declaration that Dr Ashley Bloomfield exceeded his power under s 70 of the Health Act 1956 by ordering the ongoing shutdown of the entire country, including regions where people were not unwell.

The Crown last week argued that Borrowdale’s claim ignores the speed at which the pandemic escalated, saying there was “no time for some tidy policy process” which was less restrictive on people’s rights to freedom of assembly and movement. Section 70, it said, was designed for a rapidly developing health emergency. Though the Act was old, Parliament had last reviewed it in 2006 to ensure the Crown had strong enough powers to properly respond to a major public crisis. NZLS, as a neutral intervener, told the court that while the government’s actions were legitimate in the first instance, as time went on bespoke legislation was needed to deal with the situation. ■

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A good sense of humour is a must and we work in a familyoriented environment.

Rotorua District Community Law Centre aims to meet the unmet legal needs of people in the Rotorua, Murupara, Minginui and Taupo region, to increase awareness about legal rights and responsibilities and to promote self-reliance and access to justice.

All our staff need a strong understanding of the work of Community Law, the community we serve – the issues and the barriers.

To be successful in this position you will possess:• The ability to practise as a solicitor in New Zealand • Commitment to Te Tiriti O Waitangi and the needs of Māori • Expertise in employment law as well as general areas of law • Sound understanding of social issues and a commitment to social justice • The ability to relate to a wide range of people

In the winter of 1921...

Sir Vincent Meredith was Crown Solicitor for Auckland and busy establishing what is now known as Meredith Connell.

on friday 13 august 2021...

Meredith Connell will celebrate the firm’s first 100 years.

MC’s 100th Anniversary Pō Whakanui is a thank you to our team and alumni for making us who we are today.

It will be held at Tāmaki Paenga Hira, Auckland War Memorial Museum, from 7pm.

If you are MC alumni and wish to attend, please RSVP to sarah.lawrence@mc.co.nz

by Friday 30 July.

Numbers are limited.

• Commitment to the needs of low income and marginalised communities • Commitment to working as a team and the ability to support team members • A pragmatic and creative approach to problem solving and dispute resolution • Excellent interpersonal skills and oral and written communication skills • A full unrestricted New Zealand driver’s licence The vacancy is for a full-time role but we would be happy to consider part-time for the right applicant.

Applications close 26th July 2021 – please send a covering letter and your CV to the Manager Ellie Herbert at Rotorua District Community Law Centre ellie.herbert@rdclc.co.nz Copies of the position description are also available.

Ma pango, mA whero ka oti ai te mahi.

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Events Breakfast with the Chief Justice The Wellington legal profession joined ADLS at the InterContinental on Thursday 8 July for the first of what is to become an annual breakfast with the Chief Justice.

Christchurch practitioners can still purchase tickets for the August event in their city.

Sonja Cooper and Amanda Hill

Luke Yiavasis and Clara Matthews

Justice David Goddard, Dr James Every-Palmer, Gaeline Phipps, Sandy Baigent and Chief Justice Dame Helen Winkelmann

Christopher Curran and Jeremy Upson

Arti Chand, Justice Denis Clifford and Peter Hutchinson

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Justice Dame Ellen France and Steph Dyhrberg

Jul 16 2021 Issue 23

Featured events

Connecting New Zealand Lawyers

Takapuna lawyers’ lunch Wednesday 28 July 2021, 12.30pm – 2pm Regatta Bar & Eatery, The Strand, Takapuna, Auckland Sponsored by MAS Learn More

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

Upcoming July

Wednesday 28 | Takapuna lawyers’ lunch, Auckland Thursday 29 | ADLS retirement dinner for Dr Bill Hodge, Auckland (Sold out)

August

Wednesday 4 | Hamilton sundowner Monday 9 | ADLS Newly Suited & LAWSOC buddy evening, Christchurch Wednesday 11 | Ponsonby lawyers’ lunch, Auckland Thursday 19 | Christchurch breakfast with the Chief Justice Dame Helen Winkelmann Wednesday 25 | ADLS Newly Suited meet the QCs evening, Auckland

September

Hamilton sundowner

Wednesday 8 | Albany lawyers’ lunch, Auckland Thursday 16 | ADLS annual breakfast with the Attorney-General, Auckland

Wednesday 4 August 2021, 5.30pm – 7.30pm Gothenburg, 17 Grantham Street, Hamilton, Waikato

Soon to be added:

Learn More

ADLS annual breakfast with the Attorney-General

September | Auckland central lawyers’ lunch September | Rotorua lawyers’ lunch October | South Auckland lawyers’ lunch October | Tauranga lawyers’ lunch November | Hawkes Bay lawyers’ lunch

Thursday 16 September 2021, 7.15am – 8.30am The Northern Club, 19 Princes Street, Auckland Learn More

Book Here

events@adls.org.nz

adls.org.nz

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FEATURED CPD

How our medically-assisted dying law will work DEATH CAPACITY PROCESS

In Person | Live Stream 2 CPD hrs Thurs 19 Aug 2pm – 4.15pm Presenters Grant Illingworth QC; Richard McLeod, partner, McLeod & Associates; Dr Jeanne Snelling, lecturer, University of Otago and Dr Jane Casey, consultant psychiatrist and psychogeriatrician, Vermont Street Specialists

The End of Life Choice Act 2019 comes into force on 6 November 2021. Hear from our panel of lawyers, academics and a psychogeriatian who will analyse the Act and its corresponding process, offer insights into its implementation, consider capacity and other clinical challenges and discuss some red flags and thorny issues.

Chair Professor Kate Diesfeld, Professor of Law, AUT and Chair, AUT Ethics Committee IN PERSON

The perils of class and funded litigation LITIGATION RISK RESPONSIBILITY

In Person | Live Stream 1.5 CPD hrs Tues 24 Aug 4pm – 6.15pm Presenters Paul Collins, barrister, Shortland Chambers; Philip Skelton QC, Bankside Chambers; Angela Parlane, managing director, Shine Lawyers NZ and Jonathan Woodhams, executive director, LPF Group Ltd

IN PERSON

LIVE STREAM

The rapid growth in class and funded litigation has exposed a range of professional responsibility issues and challenges not encountered in regular litigation. The Conduct and Client Care Rules do not always fit neatly with the sort of professional challenges lawyers face in this area. This seminar is intended to help lawyers navigate this difficult and potentially perilous field.

LIVE STREAM

Attend our popular cross-examination workshop TECHNIQUE STRATEGY EXPERIENCE

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Workshop 4 CPD hrs Sat 28 Aug 9am – 1.15pm Facilitators Marie Dyhrberg QC, Paul Dacre QC, Paul Borich QC, Rachael Reed QC, Julie-Anne Kincade QC, Ish Jayanandan, Panama Le’Au’Anae and Aieyah Shendi Moderators Judge Winter, Judge David Sharp and Judge Earwaker

Cross-examination can make or break your case. In this learn-by-doing workshop, you can test your cross-examination skills and get individualised feedback from experienced practitioners in the field and members of the judiciary.

Refine your skills to increase your confidence and competitive edge and receive feedback direct from the ultimate decision maker – the judge.

Limited spaces available – register now.

FIND OUT MORE

Jul 16 2021 Issue 23

adls.org.nz/cpd

What you need to know about criminal disclosure

In Person | Livestream 2 CPD hrs Thurs 30 Sept 4pm – 6.15pm Presenters Julie-Anne Kincade QC and Robin McCoubrey, partner, Meredith Connell Chair Judge Sellars QC

SCOPE INDEPENDENCE EVIDENCE

IN PERSON

cpd@adls.org.nz

09 303 5278

Disclosure can be fundamental, whether to prove a case or support a defence. Yet it has challenges. The scope for disclosure has widened as technology has developed.

Today, counsel need to consider seeking cellphone provider records of witnesses or social media posts together with the more traditional items such as accounting and bank records or fingerprint evidence.

LIVE STREAM

Update on evidence law EVIDENCE CIVIL CRIMINAL

In Person | Livestream 2 CPD hrs Tues 21 Oct 4pm – 6.15pm Presenters Scott Optican, Associate Professor, University of Auckland and Jack Oliver-Hood, barrister and lecturer, University of Auckland

Presented by two of the co-authors of the 2018 text Mahoney on Evidence: Act & Analysis, this seminar will focus on the current application of key sections of the Evidence Act 2006 in both the civil and criminal law jurisdictions. It will interest civil and criminal practitioners who appear in court.

IN PERSON

Women lawyers: take charge of your career

Workshop 7 CPD hrs Thurs 28 Oct 8.45am – 5pm (Wellington) Facilitators Miriam Dean QC and Liz Riversdale, Catapult

LIVE STREAM

Exclusively for women lawyers with 6+ years’ PQE, this practical, interactive one-day workshop will be led by one of New Zealand’s top QCs and a senior leadership expert. It will arm you with resources and self-confidence which you can apply immediately in your job.

SELF-CONFIDENCE RESOURCES LEADERSHIP

FIND OUT MORE 15

CPD IN BRIEF

Legal ethics and client care: a practical guide

In Person | Live Stream 1.5 CPD hrs Wed 8 Sept 4pm – 5.30pm Presenters Michael Taylor, partner, Russell McVeagh and Joanna Trezise, senior solicitor, Russell McVeagh

Refresh your understanding of your duties and responsibilities to clients and how best to manage issues as they arise. This session will be particularly useful for junior or intermediate level practitioners but is also a helpful refresher for more senior lawyers.

IN PERSON

Running an effective jury trial

Conference 7 CPD hrs Sat 18 Sept 9am – 5.30pm Presenters Marie Dyhrberg QC, Paul Dacre QC, Julie-Anne Kincade QC, Simon Lance, Ish Jayanandan, Guyon Foley and Maxine Pitch Chair Judge McNaughton

LIVE STREAM

Jury trials require a specific set of advocacy skills. During this intensive session, and in a collaborative environment, attendees will receive guidance on jury trial advocacy skills through presentations, demonstrations and commentary.

The Secretary for Justice may take into account attendance at this conference when assessing an application for Legal Aid approval.

FIND OUT MORE

Excellence in legal writing

Workshop 3 CPD hrs Mon 20 Sept 11am – 2.15pm (Nelson) Facilitator Andrea Ewing, Crown counsel, Crown Law Office (Criminal Team)

This learn-by-doing workshop will introduce you to three simple hacks to improve your written work: writing concretely; writing actively and writing less.

FIND OUT MORE

Breach of mandate & licence fee damages

In Person | Live Stream 1.5 CPD hrs Tues 21 Sept 4pm – 5pm Presenters Matthew Harris, partner, Gilbert Walker and Daisy Williams, barrister, Shortland Chambers

The second in a two-part series on remedies, this seminar reviews the remedies available for breach of an agent’s mandate and discusses the conceptual basis of licence fee damages (also known as ‘Wrotham Park damages’).

IN PERSON

The Art of Will Drafting: Complex Wills Workshop Wednesday 15 September | Auckland Workshop | 3.5 CPD hours Visit adls.org.nz for more information.

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LIVE STREAM

Jul 16 2021 Issue 23

ĀKARANA CHAMBERS | HIGH STREET An additional member is sought to join several experienced barristers and junior barristers in our refurbished, light-filled, contemporary, collegial High Street chambers. On offer is a medium-size office at a highly competitive rate that would suit a range of barristers including a junior barrister.

The modern office amenities include a large meeting room with harbour views, kitchenette, adjacent car-parking building and availability for secretarial and junior barrister support.

Terms negotiable include monthly tenancy.

Please contact: Alex McDonald | alex@amcdonald.co.nz Stuart Ryan | stuart@stuartryan.co.nz www.akaranachambers.co.nz

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

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

ADLS, PO Box 58, Shortland Street,

DX CP24001, Auckland 1140

Transition Opportunity in Whanganui An unexpected family health issue has made me bring forward my planning towards handing over my small but well-established law firm to a new owner.

The firm handles a wide range of work with a specialty in immigration.

This creates the opportunity for a lawyer already qualified or close to being qualified to practise on their own account to step into an existing business with an existing client base.

Send expressions of interest in confidence to my direct email: Peter@robinsonassociates.nz

Chancery Chambers office for rent Three office spaces are available in the heritage Chancery Chambers building on the corner of Chancery and O’Connell Streets.

12.27sqm net located on the fifth floor, internal facing.

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21.16sqm net located on the fifth floor, consisting of two smaller adjoining offices, internal facing.

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33.71sqm net located on the third floor of the O’Connell Street side of building.

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

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

Fax: (09) 309 3726

( 09) 303 5270

BROWN Finlay Murdo Donald

MATARORIA Te Kotahi Kennie Herbert

• Late of 1130B South Road, Oakura • Marriage dissolved • Bricklayer • Aged 70 / Died 06’06’21

• Late of Papakura, Auckland • Never in a legal relationship • Truck Driver • Aged 55 / Died 16’01’21

HILL Tony • Late of 9 Otitori Bay Road, Titirangi, Auckland • Aged 56 / Died 16’05’21 JACOBS Godfrey Abraham Louis • Late of Goodwood Heights, Manukau, Auckland • Marriage dissolved • Electrician • Aged 64 / Died 03’12’20 JAIN Vivek

THOMPSON Allan Clifford • Late of 9 Waiatarua Road, Remuera, Auckland • Aged 93 / Died 20’04’20 WEDDING Anthony Terrance (aka Anthony Terence WEDDING, aka Anthony Terry WEDDING, aka Terry WEDDING) • Late of Mussel Point, Haast, Formerly of Kaitaia • Fisherman • Aged 66 / Died 12’02’21

• Late of 39 Anne Burton Drive, Warkworth 0910 • Single • Dentist • Aged 37 / Died between 22’06’21 and 23’06’21

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Continued from page 06

LAWYER need to be carefully crafted so it protects religious groups and individuals from harm but doesn’t capture expression that is important in any democracy, such as the criticism of religious ideas.’

Social and political commentator Karl du Fresne says there are so many things wrong with the proposed laws that it’s hard to know where to start.

“But let’s begin with an obvious problem: those words ‘hate’ and ‘hatred’.

Politicians and activists toss these words around as if they have some agreed, settled meaning, but they don’t. What to one person might be a valid and reasonable comment, or even a mere question relating to ethnicity, religion or gender identity, might be construed by an over-sensitive ‘victim’ as hateful.”

Du Fresne says a similar problem arises with other language used in the government’s ‘tortuously wordy’ discussion paper. “Terms such as ‘threatening’, ‘abusive’, ‘insulting’, ‘inciting’ and ‘stirring up’ are highly subjective and liable to be interpreted in different ways, depending on who’s doing the interpreting.

“There’s also the scary prospect that with the criminalisation of ‘hate speech’, it would fall to the police – initially, at least – to determine which opinions cross the legal threshold. We have ample evidence from Britain of the dangers that arise when the police are politicised and over-zealous officers take it upon themselves to decide what’s safe.” ■

We are looking for a Lawyer with a minimum of 2 years’ PQE to join our team. The role is to assist and work with a Director, so is a great opportunity for you to develop your skills and experience.

Essential Attributes: • Experience in dealing with clients, managing your own files.

• Experience in Conveyancing, Commercial, Trusts and Estate work.

• Able to operate in a collaborative environment.

• Experience with legal software such as Actionstep is a plus.

Our offer: • Innovative & diverse team. An excellent collaborative culture.

• Great lifestyle choice.

• Market salary, benefits and opportunity for career path.

• Established precedents and technology.

• Reasonable relocation expenses.

• Flexible working arrangements by negotiation.

Please email your resume and covering letter to Neil Dickson (neil@jmjlawyers.co.nz)

Thanks to Jasmine Jackson (law clerk to Marie Dyhrberg QC) and Rachel Simpson (EJP student) for assisting the ADLS Criminal Law committee with its research ■

Expert Evidence on Memory: When to Use It and Why Tuesday 7 September | 5.00pm - 7.15pm A case can turn on memory – so having an understanding of how it works, the science available, and when to engage an expert, are vital. This seminar will help you develop your understanding of this complex and key area so you’re better informed and thus better placed to make decisions for you and your client.

T 09 303 5278

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E cpd@adls.org.nz

W adls.org.nz/cpd

Jul 16 2021 Issue 23

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

Visit the online bookstore:

adls.org.nz/bookstore Phone:

09 303 5270 Email:

thestore@adls.org.nz

The ADLS Bookstore couriers nationwide.

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

Excellence in Legal Writing (Queenstown Workshop) Monday 6 September | 11.00am - 2.15pm This workshop will introduce you to three simple hacks to improve your written work: writing concretely; writing actively; and writing less. It builds on the work of linguistic experts, notably Helen Sword and Steven Pinker.

T 09 303 5278

E cpd@adls.org.nz

W adls.org.nz/cpd

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