LawNews Issue - 26

THIS WEEK’S ARTICLES

Issue 26 7 Aug 2020

From in-house counsel to judge: an alternative route to success p1

ERA rules on first Covid-19 employment disputes p3

ADLS Council: meet Julie-Anne Kincade QC pages 4-5

LawNews adls.org.nz

LEGAL PRACTICE

In-house counsel: another route to legal success

By Diana Clement

Have you heard the one about the law student who dreamed of becoming in-house counsel? Didn’t think so. Much as our universities like to say otherwise, law students are often focussed on a job at the Big 3, with an eye on partnership.

© Georgesixth | Dreamstime.com

Yet if you speak to lawyers who have moved from big law firms or other private practice jobs to inhouse roles, by and large they couldn’t be happier.

So, are in-house jobs a hidden gem?

The market for in-house lawyers is huge and the roles diverse. Government, councils, unions, charities, sporting bodies .and New Zealand’s largest companies all employ lawyers.

The biggest employer of all is the public sector.

Government Legal Network (GLN) statistics show that in 2019 there were 899 full-time lawyers working at various government agencies compared with 844 full-time lawyers in the previous year.

Some in-house lawyers start as graduates but most jobs need experience in private practice first. Hays Specialist Recruiters’ senior business manager legal, Lorraine Zencic, says in-house roles usually require at least two or more years’ experience. “By four to five years lawyers have some solid training, systems and principles in place if they have worked in a good firm, which gives a sense of comfort [to employers].”

Zencic says lawyers are often seconded into businesses and other organisations to work inhouse on behalf of the law firm and they get a taste for the work. “Quite often they are shoulder-tapped [and] that transition is made without them even looking outside in the market.”

Of all lawyers practising in New Zealand nearly a quarter (23 per cent) are in-house lawyers, says Zencic.

Monique Esplin, manager of the GLN programmes

More than 49% of practising lawyers in Wellington work for the government

It was unheard of in years gone by for someone to go directly from an in-house legal team to become a judge and sit on the High Court bench and capability team at Crown Law (Te Tari Turi o te Karauna), says the GLN is home to lawyers who work in a variety of ministries, departments, Crown entities, commissions and research institutes.

“Our lawyers work across the country to protect the rule of law and maintain the integrity of our

constitutional democracy,” Esplin says. “We help the government implement its policies lawfully and as a result support New Zealanders to benefit from a society that is safe, just, environmentally sustainable and economically sound. We are lawyers for New Zealand.”

In-house lawyers LawNews spoke to said they often earned as much and sometimes more than they would in private practice. Many in-house lawyers progress into management at the very highest levels with salaries to reflect that.

But the career path may not be as linear as in private practice and it’s often necessary to look outside the team for advancement opportunities.

Graduates can, and do, find roles in-house straight out of university with government, local Continued on page 2

LEGAL PRACTICE

In-house counsel: another route to legal success Continued from page 1 body or other organisations. Auckland Council solicitor David Hebenton was one such graduate, joining Auckland Council’s program in January 2018. Hebenton had studied law at Strathclyde University in Scotland but went travelling, working along the way in sales and then as an adviser at Auckland Council’s Arts and Culture department.

He decided to pursue law here and enrolled at the University of Auckland to complete the Certificate of Proficiency (COP) needed to convert his degree.

“When I was converting my degree, Auckland Council ran a graduate evening at Auckland University. My manager in Arts and Culture [where he worked to pay for his studies] also recommended council’s legal team. So that’s how I was made aware of the opportunities.”

Hebenton was one of four graduate lawyers in the same intake. They were part of the council’s wider graduate program, doing stints in the property/ commercial, public law, regulatory and civil litigation teams. “It was a really good opportunity to test out all those different areas and actually be exposed to the type of work the lawyers do in each,” says Hebenton. The graduate junior lawyers were given more autonomy than they may have received in private practice. “At council we get the opportunity to own a file from start to finish,” he says.

On completing the rotations, Hebenton chose to go into the council’s litigation and dispute resolution team where he deals with negligence, nuisance and public works claims as well as contractual disputes.

The department also advises on health and safety.

The GLN also has programs for students at graduates. Its summer clerk program places law students in government legal teams to get paid, first-hand experience, Esplin says. “In 2019 we had 21 summer clerks placed in agencies and in 2020 we have 22 summer clerks in agencies in Wellington and Auckland.

“At the start of next year, our GLN graduate program will be seeking law graduates who would like the opportunity to work in three government agencies over the course of two years. In 2020 we had six graduates placed in agencies.” The popularity of these programs continues to increase, says Esplin.

David Hebenton

Craig McCall

In Wellington more than 49% of all practising lawyers work in government

from former children in state care, alleging some failure by the ministry or its predecessors that caused them harm.

Another route Craig McCall, senior legal counsel at Vodafone, started his career in-house but not through a graduate program. He hadn’t considered working in-house when he was at university, being aware only of the private practice route. “I didn’t have a great picture of what else was out there.”

“Fortunately, because I hadn’t particularly applied myself well at uni, my grades didn’t really align with getting a job in one of the private practices I applied [to]. So, I scrambled around and ended up getting a job with the Charities Commission.” Although the registration analyst job was not a legal role, it gave McCall the feel of what it was like to work in-house. Determined to get into the law profession, McCall did the Professional Legal Studies Course off his own bat.

But it was the height of the Global Financial Crisis and there weren’t a heap of legal jobs around. He ended up in a legal role at the Ministry of Social Development, dealing with historical abuse claims

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“This role has given me thorough experience in high-level litigation in a large organisation, dispute resolution and legal and factual research, including conducting interviews.” It allowed McCall to grow his experience.

He left to go on an OE to the United Kingdom where he landed a temp legal role with Sport England. Thanks to the London 2012 summer Olympics, the organisation handled huge amounts of funding for grass-roots sport which was monitored by the legal team. “I was lucky that this temp role happened to be in this really exciting organisation,” says McCall.

The legal adviser role involved tasks such as taking security over property to claw back funds from organisations that didn’t meet their key performance indicators (KPIs) as well as more general in-house type work on contracts and procurement. The job allowed McCall to delve into issues of professional interest. “[I] thought ‘this is good. I like this’.” He thrived on the day-to-day hustle and bustle of the business.

“You have to keep doing things. You are on-the-fly all the time.”

On his return home McCall worked for four years in Continued on page 6

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LawNews Issue 26 | 7 Aug 2020

EMPLOYMENT LAW

ERA releases first Covid-19 employment decisions

By Jenni McManus

As employment lawyers report an upsurge in post-Covid-19 inquiries, the Employment Relations Authority (ERA) has begun determining complaints relating to the lockdown.

Two decisions, in particular, spell bad news for any employer who has failed to implement the new minimum wage requirements on 1 April or who did not consult with, and secure agreement from, employees before cutting their pay during lockdown. Employers would have been better off, it seems, to have restructured their businesses and made staff redundant rather than accepting the wage subsidy and cutting employees’ pay without agreement to 80% to try to preserve jobs.

Sandhu v Gate Gourmet New Zealand Ltd [2020] NZERA 259 Gate Gourmet operates from Auckland International Airport, providing inflight catering for domestic and international flights. It has more than 130 staff. Though deemed by the government to be an essential service, the business found its work evaporated almost overnight when New Zealand went into lockdown on 25 March and 99% of flights were cancelled. Nevertheless, because of its ‘essential service’ status, Gate remained open throughout the lockdown with a skeleton staff. Most employees were told to stay at home because, with most flights grounded, the business had no work for them.

Gate Gourmet told staff they would receive 80% of their normal pay if the company succeeded in getting the government’s wage subsidy and, to supplement this, employees could also use one day each week of the annual leave entitlements to bring their pay up to 100%. The Aviation Workers United Inc Union (AWU) agreed to this, providing Gate Gourmet complied with all relevant legislation.

Complicating the issue were the new minimum wage requirements which came into force on 1 April, about a week after lockdown began, boosting Gate employees’ pay from $17.70 an hour ($708 a week) to $18.90 an hour ($756 a week). The company told its staff only those actually working would receive the minimum wage increase, meaning those not rostered on and actually working would continue to receive 80% of the old minimum wage, or $604 a week.

The union objected, saying Gate was not entitled to pay any fulltime employee less than the minimum wage for at least 40 hours a week. To do otherwise would breach the Minimum Wage Act 1983. It also said Gate had failed to consult with the union about the proposed changes and had unilaterally decided to alter the terms of its employees’ employment contracts by shutting down most of its business as a result of the pandemic.

It sought a determination that Gate had acted

unlawfully in paying less than the minimum wage, compliance orders requiring it to pay all fulltime employees no less than the minimum wage of $756 a week regardless of whether they were working or not, and penalties. The union said Gate’s workers were ready, willing and able to work and the only reason their work had been curtailed was that the company had failed to provide them with work.

They were therefore entitled to their normal wages, the union said. There could be no contracting out of the minimum wage requirements.

proposing a restructure of their positions and inviting feedback.

Gate Gourmet said based on legal and government advice, its reading of the rules meant it was required to pay the new minimum wage only for employees who were actually working. Regardless of its ‘essential service’ status, it had little or no work for staff during lockdown. Airlines were grounded and the government had issued stay-athome orders. Gate said it had reached agreement with its employees to pay 80% of their normal wage. It had decided to accept the government’s wage subsidy rather than restructure its business and make employees redundant, it said.

On 8 May a group of workers lodged a claim with the ERA challenging the justifiability of their dismissal and the short payments for the second four weeks of their notice period. They said they had not agreed to be paid anything less than their normal wages and salary and that Dove had made unlawful deductions in breach of the Wages Protection Act.

The ERA thought otherwise. If employees were ready, willing and able to work in an essential industry, the company was required to pay them at least the minimum wage, regardless of any agreement to the contrary that might be in place, it said.

The ERA acknowledged the extended eight-week notice period was “generous and sensitive to the impact of the redundancies on the workers” but regardless of that, Dove was “not permitted to pay a rate that differed from the rate stipulated in workers’ employment agreements.”

The ERA also disagreed with Gate’s view that if employees were not working, it was not required to pay them anything.

“The parties had an agreed instrument for payment of redundancy notices,” the ERA said. “To unilaterally vary part of that instrument, albeit to the benefit of the affected workers, did not release Dove from the remaining obligations under the instrument.”

Because the company had taken no steps to restructure after its work evaporated, Covid-19 restrictions were not the reason Gate’s employees were prevented from working. Rather, it was because of a direction from the company itself to close down most of its business, the ERA said.

In paying its workers 80% of their wage, Gate breached the Minimum Wage Act. Back pay and reimbursement was ordered, but no penalty to the company.

Raggett v Eastern Bays Hospice Trust t/a Dove Hospice [2020] NZERA 266 At issue here was whether the government wage subsidy introduced in response to the Covid-19 lockdown meant employers did not need to pay wages under the Wages Protection Act 1983 because their employees could not work. The definition of “wages” also came under scrutiny.

Valerie Raggett and five other applicants worked in retail businesses supporting the East Auckland hospice and in human resources and communications for the hospice. Raggett herself was HR manager.

The day before lockdown the hospice closed its retail stores in response to the government’s stayat-home orders for all but essential workers and orders to close all but essential businesses. Staff were told they’d be paid 80% of their wages. But a few days later employees received individual letters

At various dates during April, individual employees received further letters saying their positions were being disestablished and eight weeks’ notice of termination of employment was being given. The first four weeks would be paid at 80% of their salary or wages and the second four weeks at $585.80 a week – the amount of the government wage subsidy.

For its part, Dove said because of the Covid-19 restrictions, its employees were not ready, willing and able to work so no laws had been breached.

The ERA also rejected Dove’s argument that it was released from its obligations under the Wages Protection Act because its workers did not perform services or work under their employment agreement.

“If the WPA were to operate as argued, any nonperformance of service or work would release the employer from its contractual obligations to pay wages,” the ERA said. Dove’s proposed interpretation “stretches the statutory language too far”.

Dove’s employees were at all times ready and willing to work, the ERA said. “But for the intervening event of the Covid-19 restrictions and/ or Dove’s decision not to require them to attend work during the notice period, on the evidence, they were able to fulfil their obligations under the employment agreement.”

Employees were sent redundancy notices on 7, 9, 14 and 15 April and 1 May. From 25 March to 27 April New Zealand was under level 4 lockdown restrictions, meaning stay-at-home orders prevented employees from attending work unless they worked in an essential industry. Dove’s retail stores were not deemed to be essential services.

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PEOPLE

ADLS Council: Meet Julie-Anne Kincade QC

By Rod Vaughan

Newly-appointed ADLS Council member Julie-Anne Kincade QC brings to the table nearly 30 years’ experience as a criminal barrister, working in both New Zealand and the UK. A newly-minted QC, her most high-profile case to date was working with Jonathan Eaton QC to defend Mark Lundy, convicted of killing his wife and daughter at their Palmerston North home in 2002.

When Lundy lost his final appeal in the Supreme Court last year, Eaton and Kincade said it was not the end of the road and indicated his case might be put before the newly-established Criminal Cases Review Commission.

Kincade graduated LLB (Hons) from the University of Huddersfield in 1990.

She was admitted to the New Zealand bar in 2007 and was a prosecutor at Meredith Connell before joining the independent bar in 2013.

Now a member of Blackstone Chambers in Auckland, she regularly presents seminars for criminal lawyers and is a member of the Criminal Bar Association, the New Zealand Bar Association, the Auckland Women Lawyers’ Association and the ADLS Criminal Law committee.

Paint me a picture of your upbringing, education and family life in the UK and how it shaped you as a person.

I grew up the younger of two girls and went to school in Belfast, Northern Ireland.

Julie-Anne Kincade QC

Northern Ireland in the 1970s was a deeply divided and troubled place. As a child, I did not realise the full extent of how abnormal the society was but I was always aware of the many imbalances of power that existed – not just the obvious imbalance between Protestants and Catholics but also between men and women, rich and poor, gay and straight and so on.

Being a criminal lawyer is working at the coalface of the legal system

The constant daily violence prevented discussion about greater rights and freedoms, such as we are used to and take for granted in New Zealand. There was also a power imbalance in my household as I was the youngest and felt I always got the blame for everything. I have no doubt this sowed the seeds of wanting to help people with less power and less voice in society.

master plan. Just do your best each and every day and the future will work itself out.

When did you decide on a career in law and what influenced you to go down this path?

Truly, I started the law degree because my family suggested that I try it out. I was always pretty argumentative so to them it was an obvious choice!

What are the biggest challenges you have faced as a woman practising law and how have you met them?

When I began as a young lawyer in the early 90s, I was very naïve and did not think gender made much difference. That opinion is so ridiculous to me now.

I was not sure it was for me before I began, but I really did love it. I loved mooting and was always most attracted to criminal justice and criminal law.

One thing back then was that ‘female’ attributes were not valued. The values that were respected were traditionally viewed as ‘male’ traits – aggression and fairly brash behaviour.

Being a criminal lawyer is working at the coalface of the legal system. It is the point of contact with law that most people think about or have experience of – whether as a juror, a witness, or going to court with a friend or family member for some reason.

I strongly believe that lawyers are privileged to help people when they are going through one of the most difficult and challenging experiences of their lives. It is our job to help them through that process and try and achieve the best outcome for them that we can in the circumstances that exist.

What did you hope to achieve as a lawyer and are you hitting your goals?

I just really hoped to make a living to support my family and help people as much as possible along the way. I also love working with other lawyers, teaching or giving seminars or just chatting about our cases.

The objectives I focus upon are the day-to-day things rather than having a big 4

I quickly realised that being underestimated in the courtroom was a gift and I could use that to my advantage. I tried to be well prepared, had a game plan and stuck to my own knitting. I tried not to get drawn into the games that barristers can try to play in the courtroom. I try to think about what the judge needs to know, or what they need to decide, and help them in that job – hopefully persuasively for my client of course but realistically as well.

Slowly the judges get to know that about you and are willing to listen to what you are saying.

To what extent is sexual harassment and discrimination still an issue in the New Zealand legal profession? Is there more work to be done?

I think sexual harassment is always more of an issue for younger women – in every era. I hope today there is more awareness of what it looks like and what is Continued on page 5

LawNews Issue 26 | 7 Aug 2020

Continued on page 5 unacceptable behaviour. Discrimination is much harder to identify. Quotas are important to make us all think about our conditioning and try to guard against our own prejudices. If you get given a chance, though, make the most of it – whatever it is.

What are the most pressing issues facing the legal profession? Are they being adequately addressed?

For the legal profession, the issues are always about succession and training.

We need to make sure the people coming through are well equipped to ensure the profession carries on from strength to strength. Access to justice is always vital and must be protected by practitioners as much as possible.

How would you describe your personal and professional values and how do you apply them on a day-to-day basis?

I strongly believe in authenticity. Judges, clients and juries need to know they can rely upon you and what you are telling them. Also, strong professional ethics are important. Criminal lawyers particularly need to have very clear ethical boundaries to protect themselves from criticism.

What drove you to become a criminal lawyer? What does it take to become successful in this area of the law?

In my second year at university I met a probation officer who offered me the opportunity to spend a working week with him. At that time, I thought that was something I might do (either that or journalism).

He told me if I wanted to make a difference and help people [I should] be their lawyer. I have strived always to do the best job, whether it be a bail application, a trial or sentencing.

It is thrilling and a privilege to think you can positively impact on a person’s life, giving them an opportunity that otherwise they might not have had.

When it works and you get a thank you, that is amazing. Lawyers also need to understand they are running a business too, and make sure they set aside time in their working week for the admin. Know what you need to do and when you need to do it so you are using your time as efficiently as possible.”

Having worked as both prosecutor and defence lawyer, which role do you find the most demanding and challenging?

Defending definitely has higher highs and lower lows. With prosecuting there is usually less emotion although one of the most moving moments of thanks that I had was from the whanau of the deceased in a case that I prosecuted with Rachael Reed QC while we were at Meredith Connell.”

Criminal law can come at a huge personal cost as we’ve seen with the tragic death of Greg King. From a personal perspective, is stress and burnout still an issue and, if so, is enough being done to rectify it?

We absorb so much stress from our cases and clients and need to keep moving forward so it is inevitably detrimental to our mental health.

There is often no time to recover or have personal issues. I encourage all lawyers to keep ahead of their mental health. I always have at least one day off a week, book holidays in advance. Don’t feel guilty when you are not working.

Being in chambers is vital as we support each other a lot – we try to keep an eye on the well-being of everyone in chambers.

You’ve been involved in several high-profile criminal cases. To what extent were the people you defended well served by the criminal justice system and, if not, what needs to be done?

That needs a whole other interview but by and large I like the jury system and think that they usually get it right.

As one of the lawyers defending Mark Lundy, did he get a fair crack of the whip and will you be referring his case to the newly-established Criminal

Cases Review Commission (CCRC)?

I represented Mark over six years and so after the Supreme Court decision I indicated that I was going to step aside. What I have said about that trial is well documented elsewhere.

You are on record as questioning the impartiality and inexperience of some individuals on the CCRC. What are your concerns?

The CCRC is an exciting development in the legal landscape of New Zealand which is very challenging for anyone appointed. The concerns are only that the job will involve an analysis and judgment about (mainly) jury trials and so those with trial experience will no doubt find that useful.

Rightly or wrongly there is a public perception that some judges are too soft on hardened criminals. Are you sympathetic to this point of view and is there any evidence to support it?

I would challenge anyone with that opinion to come to court with a lawyer and see how many factors the judge needs to balance in making a decision, whether on sentence or on bail.

There are some highly-publicised cases which can lead to this view – but these few outliers do not reflect the hundreds of cases which are not reported and where decisions have also been made without complaint.

I strongly believe that lawyers are privileged to help people when they are going through one of the most difficult and challenging experiences of their lives What are your views on the three strikes law and does it need to be amended or repealed?

My view is the same as that on the New Zealand government website which is that there is no evidence that it works.

I have yet to meet a person accused of a crime who thought to stop and think about the consequences of his action, or what would happen if caught.

This law definitely does lead to injustice though, as was recently seen with a man being given seven years for a kiss, a sentence which he will have to serve in full without parole.

New Zealand has one of the highest prison incarceration rates in the western world with Māori being disproportionately represented. How would you tackle two such seemingly intractable issues?

I do feel there are people in prison where it is a waste of society’s resources to simply lock up people, often in the prime of their life.

I am sure we could and should find different solutions than prison, with a focus on rehabilitation. Locking people up for 23 hours a day is such a waste of humanity.

So far as Māori representation in the prison system is concerned, the issues of course arise from childhood. The issues to be tackled cross the whole of society. The criminal justice system is trying to look at the issues with the use of cultural reports, but this is at the end of the process.

Away from your chambers and the courtroom what interests do you have and what sort of life do you lead with your family?

A busy life one! I like to spend time with my kids and friends, just hanging out, preferably near a beach.

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Continued from pages 1, 2 legal roles at the New Zealand Defence Force, then moved to a fixed-term contract three years ago at Vodafone to “have a go outside the public sector”.

Vodafone suited him. He enjoyed the technology side and the contract became permanent.

McCall has discovered through his various legal roles that he really enjoys working alongside people who are specialists in their sectors.

At the Ministry of Defence, for example, the procurement side was endlessly interesting.

“Even things like the mass level of hospitality-type services. The rations. Feeding the people. [It] is just fascinating to see a big organisation and how it can manage those things and how there is a legal part to play in that to bind it all together,” says McCall. “[In-house] is definitely something that’s worth giving a go. Even if it’s just for a short time. That’s what I did [when] coming to Vodafone. I wanted to try out the corporate side of things. Getting out of government. Do it for a year and see what happens. It might be an experience. It might be a new opportunity to stick with. There is nothing to lose giving it a go.”

If McCall had his time over again, he’d plan a career that got him exactly where he is today. “I would have liked to have got where I got from actual planning rather than been lucky to land where I have. But each role I have had has been critical to getting me where I am.”

Seizing opportunities An in-house team is different from the big teams in private practice, which are set up to move lawyers through the ranks. “You do quite often need to move between organisations to make those advancements,” says McCall. “I think that’s part of the fun. You get to jump into another organisation and figure out how it works.

Some in-house lawyers start as graduates but most jobs need experience in private practice first “There’s a theme there of having to look for and take opportunities rather than waiting for a role above to open up, but an open mind to what those opportunities look like will offer more.

Later there are more opportunities available within an organisation to shift into other teams or management roles.”

Around one-third of in-house roles involve a single lawyer working in an organisation, says Zencic. She notes that few companies in New Zealand have more than 20 lawyers in their legal departments.

The government has several departments that each employ more than 100 lawyers. “Government is huge,” she says. “In Wellington more than 49% of

all practising lawyers work in government.”

In-house lawyers often talk of the better work/ life balance. Some work 9am to 5pm; others work part-time.

McCall says the tempo of work is different to what he sees his contemporaries doing in private practice. “I think it’s [a] different [sort of] stress. You have to make calls and keep things going. Some people might not like that. But it fits quite well with me.”

Once an in-house lawyer doesn’t mean always an in-house lawyer. There is crossover, says Zencic.

Nor is being an in-house lawyer a hindrance if you want to become a judge.

Hebenton points with pride to newly-appointed Associate Judge Dani Lee Gardiner, who was appointed to the bench from her role as general counsel at Auckland Council.

“It was unheard of in years gone by for someone to go directly from an in-house legal team to become a judge and sit on the High Court bench,” he says.

“That is something we are all really proud of and it does show younger lawyers if you do have aspiration to become a judge you don’t necessarily need to follow the traditional route of becoming a partner in a law firm or a barrister. So, I definitely think the perception of in-house lawyers is changing and is not, as it once was thought, inferior to private practice.”

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LawNews Issue 26 | 7 Aug 2020

ADLS EVENTS

ADLS host its first live event since March On Wednesday 29 July ADLS hosted its Hamilton lawyers’ lunch – its first in-person collegiality event post lockdown. We were delighted with the turnout at the Restaurant on Alma. The consensus was that it was wonderful to be out and about again, networking and socialising with others in the profession.

Peter Lycett (MAS) and ‘txt to win’ winner Samantha Lee

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Livestream CPD 1.5 hrs

 Mon, 17 Aug 4pm – 5.30pm

 Presenters Sarah Blackmore, Special Counsel, Russell McVeagh Patrick Senior, Senior Solicitor, Russell McVeagh Belinda Storey, Managing Director, Climate Sigma

 Chair Elise Markwick, Partner, Martelli McKegg

 Webinar CPD 1 hr

 Wed, 19 Aug 12pm – 1pm

• Understand the role that Microsoft Teams can play in your workday beyond voice calls and meetings.

• Learn the difference between using Chat and Teams/Channels.

• Manage who has access to Teams and Channels – invite, add and remove users.

• Invite external collaborators to Teams and Channels.

• Share files and collaborate on documents.

• Search – and find stuff.

• Add additional tabs into Teams and learn about their benefits.

• Learn how to add further apps into Teams, and which ones might benefit a Legal Office.

As an added bonus, you will receive a free 20-minute video on a beginner’s guide to using MS Teams.

 Presenter

Working More Effectively with Others

Members: $300 + $180 for DiSC profile +GST. Non-Member: $390 + $180 for DiSC profile +GST

 Workshop

Success in law requires great commitment and capability. One area that can make or break a legal career is how effectively a person works with others. Sometimes, under the focus of practising law, the legal profession overlooks the importance of interpersonal effectiveness. DiSC behavioural profiling brings a structured framework to working with others that suits the legal profession. It is evidence-based, powerful and highly actionable, providing clear insights and ways of working with others that will immediately increase how well you and others work together.

Carlene O’Meagher

CPD 3 hrs

 Thu, 20 Aug 9am – 12.15pm

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

Learning objectives: • • • •

Understand the different ways people prefer to work.

Better understand how you prefer to work.

Learn how to immediately work more effecively with others.

Enjoy more effective working relationships.

Openings and Closings in Criminal Trials

Livestream

In Person | Livestream Focusing on effective preparation and presentation of opening and closing addresses from both a prosecution and defence perspective, this seminar will also cover content, structure, applicable principles, and best-practice approach.

 Seminar

Learning outcomes:

4pm – 6.15pm

• • •

 Presenters

Receive guidance on how to effectively prepare and present an opening statement.

Gain valuable pointers on how to effectively prepare and present a closing statement.

Learn more about the content and structure of openings and closings.

CPD 2 hrs

 Tue, 25 Aug

Marie Dyhrberg QC, President, ADLS Aaron Perkins QC

 Chair The Honourable Justice Moore

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LawNews Issue 26 | 7 Aug 2020

CPD in Brief Climate Change Series (3): Key Considerations for Corporate & Commercial and Banking & Finance Lawyers The third session in the five-part series will look at the interface of climate change with corporate & commercial and banking & finance law, highlighting where climate change and emissions trading scheme (ETS) issues might arise now and into the future. Relatable case studies will be used.

Livestream

CPD 1.5 hrs

 Mon, 24 Aug 4pm – 5.30pm

Presenters: Simon Watt, Partner, Bell Gully; Kate Redgewell, Consultant, Bell Gully; Joanna Silver, Head of Sustainable Finance, Corporate & Institutional Banking, Westpac

Contempt and Recusal: New Legislation, Old Saws In Person | Livestream Contempt of court and judicial recusal are important topics for all litigators. This seminar will provide a refresher and updater on contempt of court and judicial recusal.

With new legislation on the law of contempt, the potential for contempt – and the need for lawyers to deal with potential contempt issues – will increase once the Act takes effect later this year.

In a country the size of Aotearoa, the need for judicial recusal would seem to be great – but proper procedures and various guidelines exist, and the threshold for recusal is high.

Presenter: Robert Stewart, Barrister, Shortland Chambers Chair & Commentator: The Honourable Kit Toogood QC

Future Fit Workshop

As we find ourselves adjusting to the new normal after Lockdown, we are being ever more stretched to meet the expectations of our organizations, customers, and to keep our teams engaged.

Being Future Fit has evolved as a new paradigm, designed to help you and your team move from a state of panic to thriving.

Attendees will also have post Workshop access to Jumpshift’s Adeption Platform to further support their learning and achievement of their goals.

Numbers are strictly limited so book now.

Facilitator: Jimmy Burroughes, Leadership Sounding Board and Coach, Jumpshift

The Art of Communication How often have you heard that communication is key? And how often have you regretted (to your or your client’s chagrin and possibly disadvantage) that you should have slowed down when making an address, used more eye contact, and/or come across as more confident? Led by an experienced advocate (and media spokesperson) and an accomplished teacher/director, this workshop will arm you with the skills for developing the art of communication for your role as an advocate – so you won’t let yourself down, or your clients on behalf of whom you speak.

This workshop sold out in 2018 and 2019 - register now to avoid missing out.

Presenters: Marie Dyhrberg QC, President, ADLS; Isabel Fish, Director, Producer and Educator

Livestream  Seminar CPD 1.5 hrs

 Thu, 27 Aug 4pm – 5.30pm

 Workshop CPD 2 hrs

 Wed, 2 Sep 10am – 12.15pm

 Workshop CPD 3 hrs

 Sat, 5 Sep 9am – 12.15pm

CPD Pricing Delivery Method

Member

Non-Member



Webinar (1 hour)

$80 + GST

$115 + GST

Webinar (1.25 hour)

$90 + GST

$130 + GST



Seminar (2 hour in person)

$130 + GST

$185 + GST

Seminar (2 hour live stream)

$130 + GST

$185 + GST

On Demand (1 hour recording)

$90 + GST

$130 + GST

On Demand (2 hour recording)

$145 + GST

$205 + GST

 

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

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

Terms and conditions apply.

Working More Effectively with Others Thursday 20 August | 9:00 am - 12.15 pm | 3 CPD hours Visit adls.org.nz for more information.

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WILL INQUIRIES LawNews

ARE YOU FEELING OVERWHELMED AND DON'T KNOW WHERE TO START?

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

New Trusts Act 2019 We have created a set of precedents (including a Winding Up package, work flows, letters and bills to clients, checklists and a Trust Review Report) that will:

SAVE YOU TIME AND MONEY and gives you the structure you need to ensure your clients' trusts are relevant, fit for purpose and align with the new Act. We estimate by using our documents you can halve the time it would usually take you to complete the work.

SPECIAL OFFER FREE - 1 hour training session

Email to: reception@adls.org.nz Post to: ADLS PO Box 58, Shortland Street, DX CP24001, Auckland 1140 Fax to: (09) 309 3726 For enquiries phone: (09) 303 5270

Wills

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

Vincent BAMFORD, Late of Gundry Street, Auckland Central, aged 68 (died 23’06’20)

Payment terms available on request If you would like to see a sample of our Trust Report precedent email us at legal@horrockshampton.co.nz

Howard Ernest FOOTE, Late of 53 Ferry Parade, Herald Island, Auckland, aged 73 (died 06’06’20)

Contact: wendy@horrockshampton.co.nz (021 413 126) or leonie@horrockshampton.co.nz (09 489 9029)

Krypton Kusitasu MATEKUOLAVA, Late of 1/26 Hobson Drive, Panmure, Auckland 1072, insulator, aged 40 (died 26’11’19) Hazel Esther SINCLAIR, Late of Auckland, widowed, widow, aged 97 (died 21’07’20) John Raymond TUKI, Late of Point England, Auckland, car painter, aged 31 (died 09’05’20)

Future Fit Workshop Wednesday 2 September 10:00 am - 12:15 pm | 2 CPD hours Venue: ADLS, Auckland

As we find ourselves adjusting to the new normal after Lockdown, we are being ever more stretched to meet the expectations of our organizations, customers, and to keep our teams engaged.

Being Future Fit has evolved as a new paradigm, designed to help you and your team move from a state of panic to thriving.

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LawNews Issue 26 | 7 Aug 2020

Lawyer/Legal Executive – Estates Role

LAWYER – GENERAL PRACTICE Parshotam Lawyers is a busy suburban practice with a long-standing and well-established client base.

We are looking for either a Lawyer or Legal Executive with a minimum of 3-5 years’ experience to join our team. This is a great opportunity for an ambitious and competent person with a sound understanding of estate matters.

We are looking to hire a lawyer with at least 5 years’ PQE.

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

own files with minimum supervision

• Relate well to clients and referrers

The work will be varied and will include residential and commercial conveyancing, business sales and purchase, relationship property, trust, wills, estates and leases.

• Have good time management, excellent interpersonal skills,

E-dealing and property transaction experience is essential.

attention to detail and a positive can-do attitude

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

We offer: • An opportunity to be part of one of the Eastern Suburbs’ largest

legal practices

We have an excellent work-life balance but your day will be busy.

We are looking for an immediate start. All applications will be treated in strictest confidence.

• A dynamic and forward-thinking firm with a great team

environment

• Market salary, monthly and annual bonus schemes

Please email your resume and covering letter to bharat@parshotam.co.nz

• Free parking and iPhone • Established precedents, systems and technology • The excellent training, conferences and benefits that are available

No Agencies please

to members of a NZ Law legal firm

Please email your resume and covering letter to the Practice Manager at DG Law Limited.

Brandon Tam – brandont@dglaw.co.nz No Agencies please

Climate Change Series: What Lawyers Need to Know This 5-part series aims to provide practical guidance on this key topic across a range of areas of law • • • • •

An Overview of Key Climate Change Considerations Across the Law | On Demand Key Considerations for Property and Resource Management Lawyers | Monday 17 August Key Considerations for Corporate & Commercial and Banking & Finance Lawyers | Monday 24 August Dispute Resolution Trends and Insights Monday 7 September Climate Change Implications for Governance Thursday 24 September

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ADLS COMMITTEES

How our new resource management law will work An update from the Environment & Resource Management Law Committee In force since 1 July, the Resource Management Amendment Act 2020 introduces a new freshwater planning process and expands the RMA’s role in climate change mitigation, along with other amendments to improve general RMA processes.

Freshwater planning process This must be followed by regional councils developing regional policy statements or plans relating to freshwater. Regional councils must implement the requirements of the new National Policy Statement for Freshwater Management by 2025.

Newly-established freshwater hearings panels will have enhanced hearing powers for public submissions on freshwater policies and plans.

Retired Environment Judge Peter Skelton CNZM has been appointed as Chief Freshwater Commissioner, and Alternate Environment Judge Craig Thompson as Deputy Chief Freshwater Commissioner. The chief is responsible for convening the panels, which will comprise commissioners with particular freshwater expertise and nominated by the relevant regional council and local tangata whenua.

Climate change mitigation The amendment also removes the statutory barriers to considering the effects of activities on climate change in both plan-making and resource consent processes.

Previously these could be considered only within the context of the development of renewable energy. These changes come into force on 31 December 2021 to give the Minister for Climate Change time to prepare the emissions reduction plans and national adaptation plans under the Climate Change Response Act. The Covid-19 Recovery (Fast Track Consenting) Act 2020 This came into force on 9 July and will self-repeal

in two years. It provides a three-tiered approach to accelerate what are referred to as listed projects, referred projects and permitted infrastructure works, by avoiding some of the more constraining aspects of the RMA processes.

Consent applications will still need to consider environmental effects in the same way as they would under the RMA and decisions are still subject to Part 2. However, it’s expected in most cases that once an application is before an expert consenting panel for determination, consent will be granted, subject to conditions.

There is no general opportunity for public participation under the fast-track process but select groups will be invited to comment on applications.

Listed projects are specifically listed in schedule 2 of the Act and will be automatically referred to expert consenting panels for determination.

The panels will be convened by former Chief Environment Court Judge Laurie Newhook, with a minimum of three commissioners with expertise and knowledge in resource management, the technical aspects of the project and in tikanga and mātauranga Māori.

Projects not already listed must be referred to an expert consenting panel on application to the Minister for the Environment. The minister will assess the application against several criteria and determine whether it is appropriate for the project to use the fast-track process. Some other minor works on certain existing infrastructure will also be permitted under the Act. Prior to enactment, the ADLS Environment and Resource Management Law Committee made submissions on the Covid-19 Recovery (Fast Track Consenting) Bill 2020 in support of the following aspects: (1) The way the Bill seeks to drive economic activity, by:

supporting New Zealand’s transition to a

Albany Lawyers’ Lunch Wednesday 19 August 2020 | 12.30 pm - 2.00 pm The Merchant Pub Co. | 219 Don McKinnon Drive | Albany Meet and network with practitioners in your area

Learn more

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Proudly sponsored by

low emissions economy;

improving New Zealand’s resilience to climate change and other natural hazards; and continuing to promote the sustainable

management of natural and physical resources in accordance with section 5 of the RMA. (2) The fact the Bill does not “relegate” Part 2 of the RMA below the purpose of the Bill, in terms of the matters that guide decisions on applications for listed and referred projects (particularly in clauses 27, 29 and 31 of the Bill). It has therefore avoided the mistakes made in previous bespoke legislation, such as the Housing Accords and Special Housing Areas Act 2013.

(3) The key role to be played by Environment Judges under the Bill in appointing and chairing expert consenting panels. In the committee’s view, using the considerable expertise and experience of the Environment Court is crucial to ensuring the Bill achieves its intended purpose and outcomes.

Congratuations The ADLS Environment and Resource Management Law Committee would like to congratulate Judge David Kirkpatrick for his appointment to Chief Environment Court Judge. The committee would also like to acknowledge the significant contribution of outgoing Chief Environment Court Judge Newhook to the Environment Court as well as ADLS during his time on the bench. Judge Newhook has attended annual meetings with the committee and chaired and presented at CPD seminars for the profession. The committee wishes him all the best in his new roles as an Alternate Environment Judge and convener of the expert consenting panels.

LawNews Issue 26 | 7 Aug 2020

MANUKAU PRACTICE FOR SALE

OFFICES AVAILABLE

A long-established South Auckland general practice with substantial conveyancing, estates and trusts clientele is available for purchase.

An opportunity for an existing firm wanting to add depth to its client base – or ambitious general practitioner with an eye to the future. The time-consuming work of building a substantial client base has been done. Act now and reap the rewards of a steady and increasing stream of varied, well-paying work flowing from a solid and expanding base of private and small business clients.

Durham West Chambers, Auckland CBD Durham West Chambers has three offices available for immediate occupation. The Chambers share a refurbished floor (with separate areas) with Hussey & Co., a boutique forensic and general accounting firm, with a shared waiting area.

Very flexible arrangements available for transition to new ownership.

Expressions of interest to:

There are two shared meeting rooms and a communal kitchen area. Telephones, internet connection, printing and secretarial services are available. Some furniture is also available.

advertising@adls.org.nz quoting ref: MLN08

The cost is $280, $210 or $140 plus GST per week plus overheads (around $120 or $75 per month) depending on size (19 sq metres, 12 sq metres and 10 sq metres).

No long-term commitment is required.

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

Contact: Shane Hussey for further details. shane@hco.co.nz tel. (09) 300 5481

Retirement Dinner for Bob Eades Thursday 3 September | 6.30 pm - 9.30 pm The Northern Club, Auckland ADLS warmly invites members of the legal profession to come together to honour Bob Eades, at a dinner to celebrate his remarkable 69 years in the law Beverage reception from 6.30 pm followed by an introduction from Dame Judith Potter DNZM CBE before enjoying a three course dinner Register here or contact ADLS Events

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CASE NOTE

Court of Appeal settles row over kiwifruit extract

By Sacha Jugum

© Shawn Hempel | Dreamstime.com

Trade Marks Act 2002 s 25 – appeal in relation to finding on similarity and whether such use is intended to deceive or confuse – applicable principles – legal test – statutory interpretation – jurisdiction – extent of any visual and aural similarities – pronunciation – precedent – appeal dismissed.

Pharmazen Limited v Anagenix IP Limited [2020] NZCA 306 (Brown, Dobson and Nation JJ) Anagenix is the registered proprietor of a certain trademark ACTAZIN (TM1) for particular goods and services, including a kiwifruit dietic substance or ingredient for medical use. Pharmazen applied to register its trademark ActiPhen (TM2).

TM1 and TM2 are accepted to relate to similar goods. The Assistant Commissioner of Trademarks declined Pharmazen’s application and this decision was upheld on appeal by the High Court.

Pharmazen now appeals to the Court of Appeal on points relating to the alleged similarity of TM1 and TM2, and whether the use of TM2 is likely to deceive or confuse.

Applicable principles – statutory interpretation, particularly in relation to s 25(1)(b) of the Trade Marks Act 2002 – whether there is an “absolute

ground” for not registering a trade mark (s 17) – whether jurisdiction to revoke registration of a trade mark for non-use (s 66) – meaning of “use” of trade mark (s 7) – whether there is any real doubt as the extent of the similarity – whether TM1 and TM2 were visually similar – extent of any phonetic identification and whether there was a substantial similarity in natural pronunciation – detailed consideration of pronunciation principles, particularly in relation to vowels, and syllables – whether actual use, or reputation, is a relevant factor – availability of each product on the New Zealand market – whether a trade mark needs to be in use before a trade mark holder can oppose another’s application – detailed discussion of precedent, including Privy Council decision Hannaford & Burton Limited v Polaroid Corp [1976] 2 NZLR 14 (PC) – consideration of legislative history, both in New Zealand and England – overall assessment of TM1 and TM2 in their entirety – the court noted both trademarks are invented words and that they are to be compared as they would be encountered in the usual circumstances of trade.

Held: Pharmazen has not demonstrated that its use of TM2 is not likely to deceive or cause confusion with products bearing the TM1 brand.

Its appeal is dismissed.

Breakfast with the Minister of Justice, Hon Andrew Little Friday 14 August | 7:15 am - 8:30 am The Northern Club, Auckland ADLS invites you to hear from Hon Andrew Little on important topics relevant to New Zealand’s legal profession.

Join us for breakfast and light refreshments, followed by an address from the Minister and a Q&A session.

To register, click here.

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