adls.org.nz NEWS Sep 16, 2022 Issue 32 Inside ■ TRUSTS Constraints on fiduciaries P06 ■ TE REO MAORI When English will do P07 The case for plain language LEGAL WRITING
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Why can’t lawyers write more clearly?COMPLEXITYLATINJARGON 03-05 Fiduciary constraints: the Court of Appeal rules on a controversial area of trust lawTRUSTSFIDUCIARYBENEFICIARIES 06 A Professor of Maori and Indigenous Affairs says sometimes it’s better just to speak English TE REO TAONGATOKENISMMAORI 07 FEATURED CPD 10-11 Cover: PM Images / Getty Images Build your brand and grow your legal practice by writing for LawNews! We welcome opinion pieces and other contributions for publication in our weekly magazine. Please contact the editor to discuss: Jenni.McManus@adls.org.nz ImagesGettyguvendemirPhoto: CPD IN BRIEF 12 EVENTS 14-15
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Some of the country’s top legal brains are backing calls for greater use of plain language in the law to make it more accessible for New Zealanders.
“The language of law is to persuade, to advise and, in the case of judging, to determine disputes between parties so that justice is done between them and seen and understood to be“Asdone.Itell my colleagues in Crown Law, if our clients cannot understand what we are telling them, and if they need a lawyer to translate what our advice is, we are not doing our jobsFormerright.”
High Court Judge Paul Heath KC holds similar views.He told LawNews that during his time on the bench
“In a leaky home case, for example, rather than getting into technical detail about what happened, there is no reason why you simply could not say that someone was complaining about the quality of work to the deck on his or her house because it was leaking, for whatever reason.
“If you were explaining the problem to a neighbour, you would avoid over-complicating the facts. Why would you not do the same thing when writing the award?”
LEGAL PROFESSION
03 Sep 16, 2022 Issue 32
he was a member of the Board of the Institute of Judicial Studies which ran programs dealing with judgment-writing, emphasising the need where possible for simplicity of expression.“Sometimes that will not be possible, for example in a case where the subject-matter is technical/legal and requires careful use of terms to explain the reasons for a decision,” he says. “In such cases, a lay reader may well find the language somewhat dense and difficult to follow but that is difficult to avoid.”
The language of the law: why has it traditionally been so opaque?
Rod Vaughan
and see if
ImagesGettydjgunnerPhoto: Tax Act you affects us all
“Think about leaning over the neighbour’s fence at the end of a hard day at the office and explaining what you have done that day.
“Secondly, the time spent writing an award must remain proportionate to the amount at stake. For every hour you take to polish an award, the parties pay more for it. Efficiency is
Continued on page 04 Have a read of the
Heath has two further tips: “When you define a term for later use in the award, choose one that is simple and easily remembered. Often lengthy acronyms do not serve the purpose well. The reader may have to return to the definition frequently if they cannot remember what the acronym means.
But Heath says a more nuanced approach may be required when making findings on differences in expert evidence.“Frequently, an explanation of the technical nature of the problem and solutions cannot be written in simple language. The aim is to write in simple terms, so far as that is practicable in light of the subject matter of the dispute and the reasons why it should be resolved in a particular way.”
Heath, who now works as an international arbitrator and mediator at Bankside Chambers, says simplicity of language is paramount.“Writeassimply as possible. Short sentences and simple language make for the best writing, whether one is reading a judgment of a court, an arbitral award or a novel. Try to use language that would explain the problem and the solution to an intelligent third party.
Leading the charge is Solicitor-General Una Jagose who for years has been intent on clearing the legal landscape of arcane language that is “mired in the past.”
Jagose launched her campaign at a Clarity International conference some years ago, saying for far too long lawyers have revelled in complex, hard-to-understand language.
understandcanit. Tax
If our clients cannot understand what we are telling them, and if they need a lawyer to translate what our advice is, we are not doing our jobs right
important. It is not an ‘either/or’ situation.
Continued on page 05
“As far as worst offenders go, it’s difficult to tell. There are still lawyers who try to hide the ball behind convoluted language. They normally don’t understand the issues very well and are largely ineffective.
“The same can happen in some judgments which can be long and give a variety of difficult-to-reconcile reasons for the outcome.“Forexample, the Supreme Court decision of Vector Gas Limited v Bay of Plenty Limited [2010] NZSC 85 is about how to interpret a contract and the degree to which prior negotiations can be taken account of in the interpretation process.“There are five judgments by the Supreme Court judges in the case which all say different things.”
Henaghan says while significant headway has been made in the use of plain language, much still needs to be done. “It is a work-in-progress and a highly significant one if society is going to continue to rely on lawyers and judges to resolve its problems.“Themost effective lawyers and judges communicate in succinct, plain and accessible-to-all language.
“I think the legal profession is recognising this; for example, we are seeing plain language initiatives in legislative drafting. We are seeing digestible, accessible summaries of important court judgments. These initiatives are important, and they show the connection between plain language and access to justice.”
“There are pamphlets which are brought out to explain legislation, but the legislation itself could be improved by making it much more accessible to read.”
Paul Heath KC
Otago Law School lecturer Mihiata Pirini told LawNews the use of plain language in the law is also important for those who cannot afford lawyers or choose to represent themselves in the“Thecourtroom.audience for legal writing is changing. Once, lawyers were the sole or primary audience for legislation and judgments. It was the lawyer’s job to explain the law in a way their client could understand, but lawyers are not affordable or accessible for all.
Continued from page 03
Mark Henaghan
Auckland Law School Professor Mark Henaghan is another who supports the efforts of the Solicitor-General to make the law more accessible through the use of plain language.
“A good award will be well-written, readily comprehensible and produced efficiently.”
Eternal vigilance
“Increasingly, people are going to the source of the law to try and understand it and apply it to their own situation. So, the audience for legislation and legal judgments is expanding to include non-lawyers.
Not surprisingly, Australian lawyer Lauren Kelindeman, who was one of the winners in the 2021 Australia/New Zealand Plain English Awards, is an ardent advocate of plain
Unrepresented parties
Henaghan says there is no question that judges are now taking time to make their judgments more accessible.
“Eternal vigilance to insist on and demand plain, understandable, succinct language by the whole of the legal profession and by the academics teaching the future generations of lawyers is the only way to ensure that the profession is relevant, accessible and cost-effective for New Zealand society,” he says.
04
It cited the example of a litigant, the House of Zana, who had been sued in a trade-mark dispute with fashion giant Zara. The defendant said she was struggling to understand the court’s decision and it was only after skipping to the end of the 29-page judgment that she realised she had won.
“The Supreme Court, for example, releases helpful media statements to summarise in plain language the outcomes of its decisions.“Recently it made a helpful video explaining the background to the case of Smith v Fonterra which outlines the issues in a case where claims are made against a number of companies, including Fonterra, for causing climate change damage.” Henaghan says while ignorance of the law is no excuse for committing an offence, “the law itself fails when it creates that ignorance by the use of obtuse legalese, where only specialists in the field can understand it.
“The Social Security Act, which is the other end of tax, is also very complex. Yet both these pieces of legislation affect New Zealanders one way or the other,” Henaghan says.
The issue of opaque court judgments was raised last month in an article published in the UK’s Law Society Gazette
“The legislation itself can be an offender. This is partly due to what is called the technical nature of some fields such as tax. Have a read of the Tax Act and see if you can understand it. Tax affects us all.
Think leaningaboutover the neighbour’s fence at the end of a hard day at the office and donewhatexplainingyouhavethatday
Henaghan says another downside to convoluted legal language is that it adds significant costs to litigants by creating uncertainty and delays.
“In an age of speed reading and increasingly unrepresented parties, is it not time for a few rules to ensure [litigants in person] can understand the rulings that affect them?” the article said. “If people cannot understand a ruling that affects them, then justice is not being served properly.”
■ not empowering them to negotiate directly with the buyer as they are not confident;
■ higher legal costs because of all the above.
Kelindeman says trying to get judges and lawyers to embrace plain language has been problematic.
Kelindeman attributes her success in the use of plain language to two “Commitmentthings.andconsistency. It was a huge task to simplify all of our precedents, but we were determined. We do refresher training and review our templates as we use them, so it is always a priority.”
Otherneed?legal entities which are following in Legalite’s footsteps include the Citizens Advice Bureau in New Zealand.
The law itself fails when it creates that ignorance by the use of obtuse legalese, where only specialists in the field understandcanit
“Language can exclude and hold back progress,” she says.
“For example, let’s say you have a client who is selling their business. If they don't understand your sale agreement, this will have many negative effects including:
05 Sep 16, 2022 Issue 32
■
language in law.
And what advice does she have for others who may wish to follow in her footsteps?
■
Lauren Kelindeman
“The other culprit is old-fashioned English language such as forthwith, herewith, insofar etc.
“I don’t believe enough is being done to encourage plain English. University students are still being trained to write essays in complicated and academic language to meet assignment word counts.
Kelindeman says many lawyers still use Latin phrases that clients don’t understand, such as prima facie or ab initio
There are a few reasons, Kelindeman says. First, lawyers often use templates. If these aren't updated regularly, they will have out-of-date language.
■
“Updating requires a big-time commitment and is often not prioritised. We've seen templates that are decades old or where a whole page goes by without a full stop!
■ misunderstanding an obligation, increasing the risk of a dispute later on;
So, why do so many members of the legal profession still resort to the use of such language?
“Second, some lawyers believe it is unprofessional or unintelligent to use simple words. I don’t agree. Using plain English makes us more relatable and helps us build trust with
is that they try to write in plain English but their supervisor changes it back to jargon. Like any culture shift, change needs to come from the top.”
■
Her law firm Legalite is at the forefront of moves to make law more accessible to individuals and organisations.
■ slowing down the sale; and
“In 2021 we won the Plain English Champion award at the Plain English Awards New Zealand and Australia which was a huge“Weachievement.sawsignificant benefits, including increased client happiness, productivity, accessibility and business growth. It is now a key pillar of Legalite’s culture and one of the main reasons clients come to us.”
“Writing in plain English takes practice, especially if you are undoing years of habits. Here are some tips which I follow: use the active voice. This shortens sentences and provides certainty; swap jargon for simple words, the simpler the better; put the answer or a summary first. This gives the reader clarity; after you finish writing, go back and delete unnecessary words; and consider your audience. How much detail does the reader
■
“If clients aren’t sure of the meaning of a word, they will assume what it means, which might be incorrect. This makes it uncertain and possibly even unenforceable.”
But Kelindeman says despite such encouraging signs it’s still an uphill struggle.,
Continued from page 04
Despite such linguistic impediments in her journey to become a lawyer, Kelindeman took it upon herself to become a pioneer in the use of plain language.
“Peopleclients.will already think you are intelligent. You don’t need to impress them with a big vocabulary!”
“I have been passionate about using plain English since the beginning of my career. As a young lawyer, I didn’t understand why lawyers used complicated language. I felt that I wasn’t smart enough to be a lawyer as I didn’t include Latin phrases in my advice. But it didn’t make sense to me. Surely clients would like you more if they could understand you?” So, in 2020 she spear-headed a plain English project at Legalite.“Wedeveloped a plain English policy and simplified over 100 of our templates and advice. I provided internal and external training on plain English and helped us launch a LinkedIn campaign with plain English tips.
Mihiata Pirini
Last year it was judged best organisation in the Plain EnglishWinnersAwards.ofthis year’s awards will be announced on October 27. ■
“The feedback we get, particularly from young lawyers,
“The good thing is we are seeing more plain English training opportunities for lawyers. We present plain English training several times a year and there are organisations like the Plain English Foundation dedicated to this.”
■ needing more hand-holding, reducing your ability to be efficient and work on other matters;
An untidy aspect of the law of trusts is knowing whether a proposed action is subject to a fiduciary constraint and, if so, to what extent.
The Court of Appeal recently dealt with this question in Pollock v Pollock [2022] NZCA 331, 25.7.22
Other factors supporting the trustees’ decision were that the father had established the trust with assets from his labours and Steven had not contributed anything to the value of the trust.
The power to remove beneficiaries was very wide. The trustees were given an “absolute and uncontrolled discretion to remove any beneficiary”.
Although the power to remove the beneficiary “imposed some obligations on the trustees of a fiduciary nature,” the obligations were said to fall well short of the standard urged by Steven.
In a recent article in LawNews, I wrote that it was desirable from a trustee’s perspective for discretions to be given to trustees with very wide wording. I said it was desirable that trustees should generally be given “an absolute and uncontrolled discretion” since this ought to make courts more reluctant to interfere with their decisions. The Pollock decision may give some support to this recommendation.
Although it is customary for commentators on decisions of senior courts to cloak their criticisms with deferential wording, Flannigan’s criticisms are not like that. They can fairly be described as savage.
Anthony Grant is an Auckland barrister specialising in trusts and estates ■
TRUST LAW
The power to remove beneficiaries was very wide. The trustees were given an absolute and uncontrolled discretion to remove any beneficiary
A successful businessman established a family trust. His son Steven was originally a discretionary beneficiary and a final beneficiary.
In a conventional analysis, it would probably be said that the father was not subject to fiduciary constraints when removing his son as a beneficiary. That is because the father was the settlor, a trustee and the funder of the trust and he was intended to have the right to determine who might benefit from it, with an “absolute” discretion to remove a beneficiary.
conclude that it was “untenable” for Steven to remain a beneficiary of the [family] business when he had become a competitor whose actions were putting the success of the family business at risk.
trustees by the father at the time of settlement and he had given them an “absolute” discretion to remove beneficiaries.Although the discretion was described as being absolute, the court said it was not. It said the trustees had an “obligation… of a fiduciary nature”. [100] What is the difference between a “fiduciary duty” and a “duty of a fiduciary nature?” If there is one, the Court of Appeal did not say what it is.
Readers who take an interest in the law concerning fiduciary accountability may want to read Professor Flannigan’s recent denunciation of the English Supreme Court’s decision in Lettimaki v Cooper [2020] UKSC 33, in an article in Trusts & Trustees entitled Fiduciary Accountability Shattered. It’s at [2021] pp 889 – 912.
Are there aconstraintsfiduciaryonremovingchildasabeneficiary?
The father signed a memorandum in which he said he had not made any provision for Steven in his will or his trust because Steven no longer wished to work in the family business.
Readers who may be interested to read some recent academic writing about the difficulties in removing children as beneficiaries are directed to another article in Trusts & Trustees, Excluding Beneficiaries: a decision not to be taken lightly [2021] page 858. ■
Steven’s counsel argued that Steven had suffered a mental breakdown. He had been removed from the company “effectively because of his mental illness” and no rational trustee could have reached the decision in thoseThecircumstances.CourtofAppeal was not persuaded by this. It held that the trustees were justified in believing that Steven was threatening to set up in competition with the family business. They were entitled to
06
As time went on, the father and son fell out. In accordance with the father’s wishes, Steven was removed as a beneficiary. The father arranged to dispose of all his assets so after his death, if Steven decided to sue, he would find the cupboard was bare.
Steven was removed for several reasons. When he wasn’t given a promotion in his father’s business, which he thought he deserved, his response was to resign and threaten to set up in competition with his father. The father’s business was called Pollock & Sons Crane Hire Ltd – or Pollock & Sons for short - and Steven threatened to open a competing business with the name “Pollock” in it. This had the potential to harm the father’s company.
Steven was not put off by this and he sued. He claimed that his father’s gifting of monies to deplete his estate was made as a result of undue influence, that the trust had been unduly enriched by reason of the gifts and that his removal as a beneficiary was in breach of a fiduciary duty the trustees owed to him. All of these claims failed.
His second wife and the professional trustee were in a similar position in that they had been appointed
There had been earlier disappointments with Steven and in a subsequent document the father wrote that his son had “never been there for [him] in his hard or bad times” and that “because of the heartache, stress and... selfish ways” his intentions were that Steven should receive nothing from the father’s estate “because in the past he has had plenty and got nothing to show for it”. [26]
Anthony Grant
This article is confined to Steven’s claim that the trustees acted in breach of fiduciary duty when they removed him as a beneficiary. There were three trustees: the father, his second wife (Steven’s stepmother) and a professional trustee.
With all things in the world possessing one fundamental essence, any single object owes its existence to everything else. Within one object, everything else resides. The Te Awa Tupua Act took a conceptual step towards recognising this in law.
From a Māori perspective of the interconnectedness of things, there is a particularly isolating, divisive tendency in English, which diminishes full Māori meanings.
Justice Minister Kiri Allan
Tokenism and te reo Māori: why some things just shouldn’t be translated
With these political and philosophical concerns at the forefront, one arm of my research has been to examine – from a Māori vantage point, where all things are interconnected or “one” – how a Māori text does not essentially connect with its English translation.WithKiritapu
Carl Mika
and tikanga and law.
Deeper meanings
So it was that earlier this year Justice Minister Kiritapu Allan objected to the tokenistic use of te reo Māori in government departments.OtherMāori have objected to this too and the issue also arises in the debates around science and mātauranga Māori
Words such as “whakapapa” and “whanau”, for example, often lack their more holistic dimensions in these contexts. Ironically, they have no whakapapa or whanaungatanga with the text. The surrounding English text in law and policy will emphasise measurable, tangible things whereas te reo terms always refer to intangible worlds as well.
Continued on page 13
In 2017, the Whanganui River was made a person in the eyes of the law. The Te Awa Tupua (Whanganui River Claims Settlement) Act acknowledged, in its own way, that the human world includes other, more-than-human entities.
It was perceived at the time as quite a radical step for the law and it is undoubtedly legally significant. But this profound interconnection that underpins all things has been self-evident for Māori and other indigenous peoples for millennia.
MAORI LANGUAGE WEEK
The problem, one suspects, relates to the overuse and inappropriate use of te reo Māori. Indeed, there may be times when the taonga status of the language can be honoured only when we decide not to use te reo in certain circumstances.
These more abstract dimensions of te reo Māori, however, can clash with the generally more instrumentalist use of language in policy and law.
07 Sep 16, 2022 Issue 32
Depending on who one is talking to, these metaphysical concepts may be called spiritual or holistic or they may have no label. But it is clearly important that we employ a language that accommodates this thinking and that its terms are treated with the integrity they’re due, even in the political sphere..
ImagesGetty/Stringer/HopkinsHagenPhoto:
Earlier this year, Justice Minister Kiritapu Allan objected to the tokenistic use of te reo Māori in government departments
It is thisaccommodateslanguageweimportantclearlythatemployathatthinking
Te Reo Māori is often invoked as one such language – a spiritual taonga, gifted by human and non-human ancestors and imbued with their presence. It registers the more-than-human realm – Te Po (night), Te Kore (nothingness) and so on – while talking about a single thing.
Allan’s challenge in mind, and in light of this year’s 50th anniversary of the Māori language petition itself, consider the position of te reo Māori in policy and legal texts.
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On behalf of the judiciary, Chief Justice Dame Helen Winkelmann issued a statement of condolence on the death of the Queen, “recognising her life of extraordinary commitment to duty and unprecedented service as Chiefsovereign”.Justice
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Winkelmann said it was decided to keep the courts open last Friday, with flags at half-mast. Judges were invited to mark the event in court in a manner of their own choosing – for example, with a short statement of condolence, a karakia that has been prepared to mark the event or two minutes’ silence.
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Sacha Jugum
Erlon now applies for an order that the caveat over the two properties not lapse – applicable principles – extensive discussion of the background to the parties’ arrangements and the financial contributions and payments made – whether mutuality of agreement between the parties – consideration of the nature of caveatable interest claimed by E, where the caveat referred to an “equitable interest pursuant to a constructive trust… by reason of the joint venture agreement”, and assessment of whether this type of interest was a sufficient interest in land to support a caveat – discussion of the elements of an institutional constructive trust and whether this type of trust could support a caveat in these circumstances – relevance of indirect and direct financial contributions – whether E had a reasonable expectation of an interest – reference to precedent and academic commentary Held: it is reasonably arguable that E will be able to establish all four elements necessary for an institutional constructive trust –the application for an order that the caveat not lapse is granted. ■
Erlon lodged caveats over two properties owned by Agrotrust.
Sacha Jugum
Land Transfer Act 2017 s143 – application for order that caveat over two properties not lapse – applicable principles – nature of caveatable interest – “equitable interest pursuant to a constructive trust” – “financial contribution” – whether sufficient interest in land – institutional constructive trust –whether reasonable expectation – precedent and academic commentary – application for order that caveat not lapse is granted
What do you need to sustain a caveat?
Erlon Limited v Agrotrust Limited [2022] NZHC 1995 (Associate Judge Sussock)
The parties had previously entered into a joint venture or some form of agreement [the precise existence and terms of this arrangement was in dispute] was reached between the parties. The properties had been converted from farmland into a kiwifruit orchard.
Sacha Jugum is a senior solicitor at Brookfields and the editor of The Bulletin ■
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Instead of being forced to act as a receptacle for a colonising worldview, te reo Māori could “take a breather” to allow Māori to discuss the issue in more depth.
After that, it might be that our precious terms are returned to the text with special provisos – or maybe not at all. ■
The Māoriuseinappropriateoveruserelatesproblemtotheandoftereo
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The Māori worldview
Regulatory Oversight Manager
The above was first published in The Conversation and is republished with permission.
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About the role
We are looking for an experienced legal professional to join our Consents and Compliance Group as the Regulatory Oversight Manager. This role provides oversight, advice, and implementation of the Consent and Compliance group’s legal, and statutory functions. This role will also provide guidance regarding best practice and training to ensure robust, sound and consistent practice, of the group’s regulatory services.
We see a warping of te reo Maori in these circumstances – a negating of its spiritual character in order to refer to more tangible things. “Whakapapa” in those instances merely refers to genealogy, “whanau” to human family.
Te Wiki o Te Reo Māori offers a chance to recall and honour the work of those who have fought to increase the number of Māori speakers. Through their efforts we’ve seen the language flourish in areas we would never have dreamed of only a decade ago.But with the language now being so widely deployed in previously unforeseen ways and contexts, it’s also timely to think about how the spiritual reality of te reo should be preserved
Author David Robinson
Carl Mika is a Professor of Māori and Indigenous Studies at the University of Canterbury ■
13 Sep 16, 2022 Issue 32
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As I said earlier, this worldview is isolating. It separates out things in the world, it actively rejects their togetherness and their relationship with the more-than-human and it inhibits te reo Māori’s ability to transcend human existence.
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against these colonising backdrops.
When English will do
This is just as important as the effort to have te reo widely used. Sometimes the two camps may not agree with each other, either. It might involve, for instance, not being scared to reject an offer to use te reo Māori in certain forums.
Wherever we see the naturally expansive nature of te reo Māori being “disciplined” by other registers of language, we need to consider withdrawing it. We would simply advise policymakers and legislators to use English terms if they are referring to a nonMāoriThisworldview.mightseem unthinkable for many, given the apparent push to use te reo Māori at every opportunity to ensure its survival. But it would also be the face of a deeper mission to ensure te reo Māori accords with a Māori worldview.
Police Law and Practice in New Zealand
The problem for te reo Māori in these situations is that a term’s “essence” – some might call this its “wairua” – has been modified to refer and equate to an English language term and also to conform to a colonising worldview in the background.
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For further information you are welcome to contact Gina Ferguson (Consents and Compliance Group Manager) on gina.ferguson@marlborough.govt.nz
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This permanent role leads a team of five property specialists who work closely within Auckland Transport and with Auckland Council and Eke Panuku to ensure the property acquisition programme is developed and implemented in accordance with statute.
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opportunity available to lead the Acquisitions team who are responsible for delivering the acquisitions programme for the Eastern Busway ensuring that acquisitions are completed on-programme and within budget.
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The position description and expression of interest forms are available from the Ministry of Justice website here.
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17 Sep 16, 2022 Issue 32 Leading in Law Workshop 2 Thursday 22 September | 9am - 1.15pm Online - Zoom Framed in contemporary leadership best-practice, where the primary role of a leader is to empower people to perform and grow, this is an engaging, sometimes challenging, leadership development experience. T 09 303 5278 E cpd@adls.org.nz W adls.org.nz/cpd 4 HOURSCPD Burning Issues in Employment Law Forum 2022 Wednesday 21 September | 4pm - 6pm | In Person - Auckland Burning Issues is back and this year it’s hitting new heights with a raft of red-hot employment law topics. This year’s theme is worker vulnerability in 2022, so join us as we consider the latest developments. T 09 303 5278 E cpd@adls.org.nz W adls.org.nz/cpd 2 HOURSCPD
