LawNews - Issue 38

THIS WEEK’S ARTICLES

Issue 38 30 Oct 2020

Where are the dissenters? P1

Dealing with warring trustees p3

Siouxsie Wiles: The life we knew in 2019 has gone p7

LawNews adls.org.nz

CONSTITUTIONAL LAW/HUMAN RIGHTS LAW

New Zealand 2020: Where are the dissenters?

The following is an abridged version of the Archibald Baxter Memorial Trust Annual Peace Lecture, delivered this year by former Attorney-General Christopher Finlayson QC. Baxter was a WW1 conscientious objector who was arrested, imprisoned and sent to war against his will There are many things I admire about Archibald Baxter but what I admire most of all was that he had the courage to dissent.

Dissent is what I want to talk about today and it seems an especially appropriate subject to discuss following the death of US Supreme Court Justice Ruth Bader Ginsburg, who established her reputation on that court as a principled dissenter from what she saw as the unacceptable status quo.

Photo by Hannah Peters/Getty Images

In the 27 years she was on the court, she was often ahead of her time: public and political opinion eventually caught up with her dissenting views. In the interim, she was often the subject of vicious political attacks.

Likewise, we can only imagine the pressure on Baxter when he was called up for duty. New Zealand has always been a closed society in many ways even though we pride ourselves on our liberalism, internationalism and outward-looking focus.

In 1914 we were lackeys of the United Kingdom which, along with the European powers, rushed headlong into a crazy world war that basically scarred the rest of the century. And yet it was nothing more than a fight between first cousins with the Habsburgs thrown in for good measure.

As a result of this exercise in gross stupidity, the Russian empire fell, communism triumphed and Russia was prevented from achieving its potential throughout the 20th century. The German Empire fell and the resulting chaos ushered in Nazism in 1933 and I don’t need to elaborate on that. The Austro-Hungarian Empire fell and was dismembered at the Treaty of Versailles. Austria followed Germany into Nazism in 1938, and the history of Mittel-Europa and Eastern Europe in the 20th century was a tragedy. So many mistakes were made during the First World War and those

A disturbing conformist trend emerged among the NZ public this year

New Zealand has always been a closed society in many ways even though we pride ourselves on our liberalism, internationalism and outward-looking focus

mistakes live with us today.

As for the United Kingdom, it treated Canadians, Australians and New Zealanders as mere colonials.

As the minister primarily responsible for World War I commemorations at the time of the centenary, I visited Belgium and northern France. What a sad experience it was to drive through the countryside and see war cemeteries every couple of kilometres.

The saddest experience of all was visiting the Continued on page 2

CONSTITUTIONAL LAW/HUMAN RIGHTS LAW

Continued from page 1 cemetery at Passchendaele and seeing row upon row of war graves. Another sad experience was visiting Arras in northern France and going down into the caves where there were signs put up by young New Zealanders and Cook Islanders, pointing out how far away towns like New Plymouth were. These fine young people fought in vain and too many of them had their lives snuffed out in the trenches of the Somme, Messines, Ypres and other battlefields.

to comment on the approach taken by the New Zealand government. Only time will tell whether the largely authoritarian response taken here and in several states of Australia was the right policy response to save the most lives and preserve the economy. I’ll say no more than that for now.

But whether it was due to blind panic, an inclination to submit to the (as it turns out) illegal instructions of a charismatic leader, or some other aspect of our national psyche, a disturbing conformist trend emerged among the New Zealand public this year.

Every year on Anzac Day we remember the folly of Gallipoli and repeat the inane phrase: “They shall not grow old as we who are left grow old. Age shall not weary them.” Well of course not; they all died in their early twenties as a result of the folly of Churchill, Lloyd George, Kitchener and other guilty men.

Yet the prevailing attitude in New Zealand was that we had to support the empire to defeat the Boche.

Our loyalty to the mother country demanded that we send thousands of young men and women overseas to fight in this meaningless war, the socalled “war to end all wars”.

The atmosphere throughout the country was one of oppressive jingoism. Imagine the courage that it took the likes of Baxter to refuse to participate in this madness. For the average person, he was a traitor and a dissenter and was punished in the most grotesque manner. You all know his punishment and I do not need to repeat it here. In a small closed country like New Zealand, Baxter’s dissent is frankly almost unbelievable.

More than 100 years on, most of the people in this room look back at Baxter and the other objectors with admiration and they affirm his dissent. But in the New Zealand of the 2020s, I wonder how many people would be prepared to take Baxter’s stand, go out on a limb and dissent from majority opinion.

Unfortunately, I don’t think there are all that many who would. The events of this year would indicate to me that most New Zealanders still subscribe to herd mentality, albeit in very different circumstances.

This first became apparent through the behaviour of the thousands of New Zealanders who reported neighbours to the authorities for perceived breaches of regulations.

Christopher Finlayson QC

Whether it was due to blind panic, an inclination to submit to the (as it turns out) illegal instructions of a charismatic leader, or some other aspect of our national psyche, a disturbing conformist trend emerged among the New Zealand public this year

Disturbingly conformist We are in the midst of the most awful pandemic and the government has had to make some difficult decisions about how to confront it. I am not going

LawNews

Editor: Jenni McManus

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

Publisher: ADLS Editorial and contributor enquiries to: Jenni McManus, phone 021 971 598 or email jenni.mcmanus@adls.org.nz Advertising enquiries to: Darrell Denney, phone 021 936 858 or email Darrell.Denney@adls.org.nz

2

In late March and early April, the police website crashed several times due to the volume of people filing reports about people whose conduct they did not believe met the various coronavirus rules floating around at the time. Some of these reports were fair enough – large gatherings and the like.

But many were for very minor breaches or were completely incorrect. A similar pattern occurred in our fellow liberal democracies, Australia and the United Kingdom. The sheer volume of calls went beyond what I would have thought was warranted.

As Lionel Shriver wrote regarding the British situation in The Spectator: The supine capitulation to a de facto police state in a country long regarded as a cradle of liberty has been one of the most depressing spectacles I’ve ever witnessed. In a matter of days, busybodies are ratting on neighbours for going for a run twice; these people would have been pigs in s*** in communist East Germany.

But this tattle-tale trend was just part of a much more disturbing whole: in 2020, no one is really permitted to dissent from the majoritarian view on the government’s response to the pandemic.

Anyone who voices a contrary opinion is subject to withering attacks in various forms of social media and from a concerning new class of public figures: the politically-aligned scientist or medical expert.

As for the media, with a few exceptions everyone has basically fallen into line and uncritically repeats the government’s message. One brave soul did Continued on page 4

All mail to: ADLS, Level 4, Chancery Chambers, 2 Chancery Street, Auckland 1010 PO Box 58, Shortland Street DX CP24001, Auckland 1140, adls.org.nz LawNews is published weekly (with the exception of a small period over the Christmas holiday break) and is available free of charge to members of ADLS, and available by subscription to non-members for $140 (plus GST) per year. To subscribe, please email reception@adls.org.nz.

©COPYRIGHT and DISCLAIMER Material from this publication must not be reproduced in whole or part without permission. The views and opinions expressed in this publication are those of the authors and, unless stated, may not reflect the opinions or views of ADLS or its members. Responsibility for such views and for the correctness of the information within their articles lies with the authors.

Photo by Hagen Hopkins/Getty Images

New Zealand 2020: Where are the dissenters?

LawNews Issue 38 | 30 Oct 2020

TRUST LAW

How to break the deadlock between warring trustees

By Anthony Grant

and contractual arrangements are such that no other means of achieving the desired object can be obtained.” [34]

I suspect the biggest category of trust litigation at present involves trusts where former spouses are co-trustees. Their relationship’s over and so is the prospect of any co-operation between them.

Although the trust deed allowed the trust to function with two trustees, there was no point in releasing the lawyer and leaving the warring spouses since they couldn’t agree on anything.

The judge said that “the level of acrimony and dysfunction is such that there is really no other option but to remove all trustees”.

Today’s article involves one of these trusts – Lockhart Trustee Services v Ryan & Another [2020] NZHC 1823, 27 July 2020.

In this case, a man and a woman settled a trust for themselves and their children. It owned the family home, jewellery and other chattels. The trust had three trustees, the man, the woman and a corporate trustee formed by a lawyer. In this article I will call the corporate trustee ‘the lawyer’.

The relationship between the man and the woman fell apart in a spectacular way: they were involved in no less than nine separate sets of proceedings against each other.

They couldn’t agree on the payment of the mortgage which went unpaid and the bank had issued a Property Law Act notice. Penalty interest was accruing on the mortgage.

It was said that some of the family chattels had gone missing.

The lawyer was caught up in the middle of all this. Edwards J said that he was “in an impossible position. [He] is unable to obtain instructions or agreement from [his] fellow trustees…” They distrusted him “and each have made allegations that [he] is acting for the other”. He had “been told [he] is acting in breach of [his] fiduciary duties, acting unfairly as between [the parties] and [he] has been threatened with legal action”.

The lawyer applied to the court for an order that he should be discharged as a trustee and for an order that a replacement trustee be appointed.

Alternatively, he asked for a receiver to be appointed.

Anthony Grant

The logical replacement trustee for such a trust, in Auckland at least, is usually the Public Trust or Perpetual Guardian. But in my experience neither of these trustee corporations is keen to accept a trusteeship when the other trustees are at war with each other. That was the case here. Neither was willing to accept appointment.

But there was a more fundamental problem.

I assume there were no liquid assets to pay a trustee.

So, the court was faced with a corporate trustee who was desperate to retire, two trustees who were at war with each other and a house on which the mortgage was not being paid and on which penalty interest was accruing. No one was willing to accept appointment as a trustee and there was no cash to pay a replacement trustee, even if one could be found.

The court in its supervisory jurisdiction over trusts must find a solution to this type of problem and there was a person who was willing to be a receiver.

Edwards J said: “The appointment [of a receiver] is a matter of last resort where there is no other adequate legal or equitable remedy available or when the court is satisfied that the existing law

The receiver was given the powers and authority set out in s 14(2) of the Receiverships Act 1993 and was instructed to report to the court within four weeks of his appointment on the condition of the trust assets. His costs were to be met from the assets of the trust.

The lawyer has sought an order that his costs should be paid from the assets of the trust and this request was to be the subject of argument.

I suspect there are several trusts like this, where the spouses who are co-trustees have fallen out, the trust is dysfunctional and there is no money to pay a person who might be willing to accept appointment as a trustee to fix up the mess.

The Lockhart decision points the way to a solution: remove the warring parties and appoint a receiver who is to liaise with the court on how to fix the problems with the trust.

There are also some lessons from this case for lawyers who act as trustees. First, acting through a corporate trustee may relieve you of some difficulties but in the present case it doesn’t seem to have been of much benefit.

Second, a Deed of Trust should contain a summary mechanism by which a corporate trustee can resign at will, against the opposition of people in the position of the warring spouses in the Lockhart case.

Anthony Grant is an Auckland barrister specialising in trusts and estates. Click here for ADLS Trusts seminar.

NEW BOOK

Drafting, 20th edition Editor: David Emmet Drafting – The City Law School, London – is designed to equip trainee barristers with the skills to draft high-quality legal documents across all areas of practice.

The manual contains practical advice on these skills in several legal settings, including contract, tort and criminal proceedings. Each chapter contains numerous examples accompanied

by detailed commentary on the key features of the draft. Exercises are included throughout the manual, offering the opportunity to practise and perfect your own style of drafting.

Note: This is a UK text; it is not specific to New Zealand.

Price: $110.00 plus GST* Price for ADLS members: $99.00 plus GST* (* + Postage and packaging)

To purchase this book, please visit adls.org.nz; alternatively, contact the ADLS bookstore by phone: (09) 306 5740, fax: (09) 306 5741 or email: thestore@adls.org.nz.

3

Continued from pages 1, 2 dissent. His name was Andrew Borrowdale. He thought the lockdown was illegal and brought a case in the High Court. He was successful in obtaining a declaration about the first nine days even though the court said it understood why the lockdown was considered important by the government. He is now appealing the High Court ruling on the basis that, despite his success, the judgment was too deferential to the executive. I hope he succeeds again in the Court of Appeal.

I note some very good recent commentary from academics like Andrew Geddis of the Otago Law Faculty and Janet McLean from the University of Auckland. We haven’t heard the end of this matter yet.

On the other hand, throughout the High Court case I was amazed at the number of commentators who thought Borrowdale was nothing more than a legal pedant who was making unmeritorious points. Where were the commentators who should have been speaking on these subjects? They were nowhere to be found.

The current attorney-general, David Parker, did a live-streamed one-hour monologue on Facebook when questions about the legality of the first nine days were raised and said he was satisfied as to the legality of the lockdown.

He was wrong. People didn’t seem to mind that the police commissioner was telling his fellow New Zealanders they would be invited down to the police station for a little chat if they didn’t conform.

I heard of several instances where police stopped young people and demanded to know what was in their bags. That was occurring in the first nine days of lockdown. That kind of behaviour was oppressive and has no precedent outside wartime in this country, and even in wartime, it was actually authorised by law. Here, it wasn’t. It should not have been tolerated. But who dissented? Very few.

People largely just fell into line.

This year has illustrated for me that we are not a nation of dissenters; we are a nation of conformists.

Margaret Thatcher once said, “when people have freedom to choose, they choose freedom”. Well, apparently not in New Zealand.

Like so many other years in our history, 2020 is yet another year of compliance and conformity, and deference by individual New Zealanders to the power of the state. Even motorway road signs ordering us to be kind don’t seem to arouse any concerns among the trusting, dependent New Zealand public. I have come to realise that those of us in whom those signs aroused Orwellian visions of the future are a very small minority indeed.

Historic wrong A few years ago, I was honoured to be the minister who gave the apology to Parihaka for the awful 4

No one is permitted to dissent from the majority view or the government’s response to the pandemic

In late March and early April, the police website crashed several times due to the volume of people filing reports about people whose conduct they did not believe met the various coronavirus rules floating around at the time events that occurred in Taranaki in 1881.

It was one of the most amazing days of my life to be able to stand up and address wrongs that had been committed in the name of the Crown so many years ago. Everyone was greatly moved by the occasion. But go back to colonial New Zealand in the early 1880s. How many people tolerated the dissent of Parihaka? People were detained without trial, exiled to Otago or the Chathams and vilified for their stance.

Still, one or two did. Many years ago, I was in the lobby of the House of Representatives looking for the Hansard of the debate where habeas corpus was suspended. An elderly parliamentary messenger asked what I was doing clambering up ladders and I told him. He was very knowledgeable about Parihaka because his great grandfather had

been a soldier there. He told me that experience turned his grandfather into a pacifist. But there were not many like him. It took great courage to dissent from the prevailing view that the Māori of Taranaki needed to be dealt to.

A couple of decades after Parihaka, the Roman Catholic Bishop of Auckland, Bishop Liston, spoke in the Auckland town hall about the treatment of the Irish at the hands of the British. He was tried for sedition. Most people blame Massey for the prosecution but that is not the truth. Liston was prosecuted because of pressure from The New Zealand Herald. Again, the prevailing view was that the United Kingdom needed to deal to the Irish rabble and dissent from that view was not tolerated. Luckily, sedition is no longer a crime in New Zealand.

Some people doubtless say while this may have been the case in the old days, we are far more liberal and questioning than we were. But that all depends on an individual’s point of view on a particular topic.

Yes, there was dissent over such matters as rugby contacts with South Africa and nuclear ships, but I fear they are the exception rather than the rule.

Take climate change, for example. Can anyone seriously suggest that dissent on this particular topic is tolerated? The editor of The Dominion Post has apparently decreed that articles questioning the validity of the ever-changing scientific consensus on the causes of climate change will not be accepted. That is an odd proposition. Surely it is better to engage in the debate with the same ferocity as your opponents rather than try to shut Continued on page 5

Photo by Fiona Goodall/Getty Images

If a National government had decreed a lockdown which was subsequently found to be unlawful, then there would have been all hell to pay. I was attorney-general for nine years and, knowing John Key, I would have been called into his office after that judgment was delivered and told that as attorney-general, I was there to ensure that sort of thing didn’t happen, and I would have been fired.

LawNews Issue 38 | 30 Oct 2020

Continued from pages 1, 2, 4 them down.

Another example would be the debate a few years ago about marriage equality. It was very difficult to voice any arguments against that legislation.

I opposed it on the principled ground that the state should not be involved in marriage at all. Marriage should be privatised as it was for hundreds of years in England and Wales until the 19th century.

I thought the time was ripe for a principled debate about the laws governing relationships to determine what was the appropriate role of the state in a secular time. Such an approach was derided as legalistic.

The history of this country shows we can be oppressively conformist and, if you step out of line, you are crushed. That is why Archibald Baxter is a real hero. He stood against the prevailing views of the day and never surrendered. Neither did the people of Parihaka. But they paid a terrible price.

Dissent essential The events of 2020 remind us that the challenge for all of us is to live lives worthy of Archibald Baxter: never uncritically accept anything as the given truth, regardless of the issue of the day or its political popularity.

That doesn’t mean dissent should be never-ending.

It is a well-known maxim of the law that it is in the public interest that there be an end to litigation.

Like so many other years in our history, 2020 is yet another year of compliance and conformity, and deference by individual New Zealanders to the power of the state I can certainly understand that sentiment in a variety of circumstances. There does come a time when argument on a topic should stop – where the argument is over.

No one in their right mind could ever sensibly argue the case for the recriminalisation of homosexual activity. One would hope it was generally accepted throughout society, regardless of whether people are liberal or conservative, that the treatment of homosexuals throughout history has been grotesque and unfair and all people, regardless of sexual orientation, should be treated with dignity. Certainly, that is what one would expect in a western democratic society such as ours and I hope it would soon become the

prevailing view in all parts of the world.

But in the end, most public policy issues should lend themselves to debate and dissent. We’ve seen plenty of these issues in recent years. Brexit was one. A good friend of mine, Dominic Grieve, fell out with his own party and ended up being deselected as a Conservative MP in the UK. In the end, he did not allow his own self-interest to force him to fall into line and uncritically accept as gospel a particular policy prescription. People must dissent from the common herd.

As Baxter shows, it takes courage to dissent, particularly in a conformist country like New Zealand. But the message of Baxter and other conscientious objectors is that dissent is not only a good thing but is essential in any society.

Archibald Baxter and other conscientious objectors saw that the Great War was evil and folly and that they would not participate in it. They were punished, treated badly and vilified for years after.

But history has shown they were right. They saw wrong and did not tolerate it. Their memory must be honoured. Their example must be followed.

They were heroes at a time of madness. They are heroes now.

Christopher Finalyson delivered this lecture on 23 September at the National Centre for Peace and Conflict Studies, University of Otago. The above is republished with his permission.

Christchurch Sundowner Thursday 26 November 5.30 pm - 8. 30 pm Fiddlesticks Bar & Restaurant Corner of Worcester Boulevard & Montreal Street Learn More

T 09 978 3970

E events@adls.org.nz

W adls.org.nz

5

ADLS COMMITTEES

ADLS committees celebrate a ‘strange, strange year’ On Thursday 22 October members from the 17 ADLS committees attended a cocktail function at Auckland’s Northern Club for an evening of refreshments, canapés and collegiality.

This annual event is to acknowledge ADLS committee members for their support and contribution to the legal profession and to welcome new committee members.

ADLS President Marie Dyhrberg QC thanked attendees for their hard work and dedication over the past year, particularly during the two lockdowns.

One attendee summed up the evening perfectly: “It was so nice to catch up with everyone. This has been a strange, strange year so a chance to celebrate the hard work of the committees was very welcome.”

Josie Butcher, Adriana Bird, Sonya Singh, Samantha Noakes and Fiona Wu

Fletcher Pilditch, Guyon Foley, Oliver Collette-Moxon and Kate Diesfeld

Anthony Grant and Rachel Oldham-Ormiston

Marie Dyhrberg QC and Des Wood

Richard Thompson and Andrew Steele

Samira Taghavi and Professor Warren Brookbanks

6

LawNews Issue 38 | 30 Oct 2020

COVID-19

Siouxsie Wiles: keep calm and carry on

By Jenni McManus

Microbiologist and associate professor Siouxsie Wiles is among a small group of scientists who’ve become household names during the Covid-19 pandemic.

As a regular guest on television news and current affairs shows, Wiles stood out for two reasons: her long, pink hair and her crisp, clear communication of the science behind the virus and the government’s response, delivered in language ‘ordinary’ viewers could understand.

None of this happened by accident. Wiles has worked hard at honing her communications skills. “I have spent 10 years learning how to get better at it, answering journalists’ phone calls,” she told attendees at this year’s Dame Silvia Cartwright lecture, organised by the Auckland Women Lawyers’ Association and held at Auckland’s Northern Club earlier this month.

“It was difficult because some of the people in my field felt I wasn’t prestigious enough or senior enough to do that. I think we should be hearing from people at all levels because we all have something different to contribute. But it’s not valued – it’s seen as taking me away from my research.

Dame Silvia Cartwright and Associate Professor Siouxsie Wiles

“I see it as an extension of my research. It doesn’t stop at writing a paper in a journal that maybe only 10 people will read. It’s about making sure that anybody who could potentially apply that knowledge understands it.

“So I feel I’ve been training for Covid-19, the marathon, for 10 years because every time there’s been some sort of microbiology crisis, or even a near miss, my phone has started ringing because journalists know that I’ve spent a lot of time learning how to talk to people and that I will pick up my phone and try to answer their questions.”

But there’s a downside. Since the start of the pandemic, Wiles has been the target of some particularly vicious social media abuse. She has been called ‘satanic’ and a witch and accused of being embroiled in a plot by Bill Gates to microchip everyone on the planet. A man in Dunedin refuses to believe she has a PhD and is firing off OIA requests in a bid to prove that. There have been attacks on her email; someone signed her up to hundreds of mailing lists in the US and Canada. “It’s been a rollercoaster, watching all the different ways people can harass others,” she says.

“I’m called a ‘narcissistic attention-seeker’ for speaking to the media. I’m a fat, 45-year-old woman. Why would I want to be on the news? I’m doing it because it’s necessary.”

Friends and family have told her to stop talking. “But I won’t be silenced. We deal with bullies.” This includes the workplace where life is far from easy for women stepping up in a profession where they’re not necessarily the dominant force.

The other reason Wiles stands out, of course, is her pink hair. That’s not likely to change anytime soon but she says it astonishes her, in 2020, that people still care about the colour of her hair and think it has some bearing on her ability to do her job.

Initially her hair was purple: at the age of 16, she and a friend decided one night it would be fun to do some dyeing - but she migrated to pink about 20 years ago and now says she can’t imagine it being anything else. “It was never meant to be a statement against anything.”

But she was keen for people to understand that scientists don’t necessarily look like the white-coated men that six-year-olds come up with when asked to draw a picture of a scientist. Even at that age, Wiles says, “that idea has got to them – that scientists look a particular way. I imagine it’s the same with lawyers and judges”.

But it has become much wider than that. “I realised that my colleagues also

seem to think there’s a type of person who should be a scientist. It gets worse as I get more senior. Twice in my career I’ve nearly lost a position because of my appearance. I got my PhD post through interviewing on the telephone and when I turned up at the lab, my supervisor nearly had a heart attack. He was like ‘you don’t look like what you sounded on the phone’. We had a very difficult three years because he was freaked out every time he saw me in the corridor.”

Around the time she first dyed her hair, Wiles became fascinated by microbes and the ability of such tiny organisms to wreak havoc. She wanted to find out how and why this happened. “I was fascinated by the fact that they could change the course of human history.”

At the end of her PhD, Wiles was told she’d done a great job but her supervisor said he would have to warn people about her appearance. “These people are probably in the minority but they seem to be in gatekeeping positions,” she says. “The message was ‘you can’t possibly be a serious scientist with hair like that…. My whole career has been forged on fighting against people’s expectations of how I should behave and how I should look.”

When the first stories emerged in early January about a mysterious pneumonia making people ill in the Chinese city of Wuhan, Wiles and her daughter were in the UK visiting her parents. Because she was on holiday, she tried to ignore the reports but that became impossible on her return to New Zealand when the phone started ringing.

Her response was to sound the alarm but to do it in a calm and measured way, so nobody panicked. “It became very apparent that this was going to become something quite frightening and unlike anything we’d ever experienced.” She recalled a scenario several years earlier when she and other experts had been invited to Great Barrier Island for a panel discussion about a pandemic and how, in that situation, the island might protect itself. “It was all a bit ‘Mad Maxish,’” she said.

But when Covid-19 took hold, she recalled the words of a sci-fi writer who’d been part of the Great Barrier panel. He’d spoken about the need for cohesion and for people to look after each other. Wiles decided she would spread that message – while remaining calm. She also decided she wouldn’t undermine the messaging coming from the authorities. “I’d let them know if things weren’t right, but it was really important that we trusted that things would be done well.”

Continued on page 10 7

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

Featured CPD Your Legal Business: Project Management and Other Tools for Improving Effectiveness — FINAL NOTICE

 Webinar

In a year like no other, legal professionals and firms have dug deep and adapted to new ways of working. This begs the question: what else can be achieved – and not just now, but in the longer term? Through the use of relatable examples, the presenters will help you garner a set of tools to help you raise the bar even higher, enabling you to take control and make improvements all-round.

 Mon, 2 Nov

Learning outcomes: •

•

•

Become apprised of the general principles and specific stages of legal project management, and how these can be tailored to your firm or organisation’s size, areas of practice and culture.

Gain a better understanding of how tools – technology, templates and checklists – can empower and streamline, resulting in reduced stress, increased profitability and enhanced client satisfaction.

Benefit from receiving templates that can be used in/adapted for your practice.

CPD 1 hr 12pm – 1pm

 Presenters Caroline Ferguson, Director of Business Transformation and Innovation, Simpson Grierson Kathryn Low, Associate General Counsel – Legal Operations, Kāinga Ora – Homes and Communities Karen O’Leary, Senior People & Culture Manager, Chapman Tripp

Burning Issues in Employment Law Forum 2020: The Covid Reformation. A Kinder World?

— FINAL NOTICE

 Forum

This Guy Fawkes night, the Burning Issues Forum 2020 has it all – bon fires, camp fires and wild fires – a veritable barbecued smorgasbord of the hottest and spiciest issues to emerge in these times of global challenge. First “The Covid Conundrum” – a blistering review of the Covid caselaw and a meaningful insight into the challenges faced by employment lawyers and their clients. Next, a scorching commentary on recent judgments that are clearing the smoky blurred lines between employees and independent contractors. Lastly, come fireside as the Chief Judge illuminates the path towards meaningful access to justice in employment law.

 Thu, 5 Nov

Learning outcomes: •

• •

Discover how employment lawyers and their clients are balancing the desire to be kind and the obligation to comply with emerging Covid caselaw, with the need to be prudent in times of economic uncertainty.

Gain a useful insight into recent judgments of the Employment Court (including Leota and Southern Taxis).

Learn more about the developing emphasis on achieving broad and meaningful access to justice in employment law.

Fairness in the Consumer and Commercial Sphere: An Update In recent times, we have heard a lot about being kind. In relation to consumer and commercial law, fairness may be kindness’ cousin. How does this translate to the consumer and commercial sphere? In this seminar, the presenters will provide an update and refresher on key areas which affect or will affect some consumer and commercial relationships, such as fair trading, (un)fair contract terms, and (un)conscionability.

Learning outcomes: • •

•

In respect of fair trading, receive an update on recent case law.

In respect of unfair contract terms and unconscionability, become familiar with the proposed legislation and become updated on recent case law.

Gain insights into the current areas of focus for the Commerce Commission.

CPD 2 hrs 4pm – 6pm

 Presenters Her Honour Chief Judge Inglis Garry Pollak, Solicitor Rachael Judge, Senior Associate, Simpson Grierson

 Chair Catherine Stewart, Barrister

Livestream CPD 1.5 hrs

 Mon, 9 Nov 4pm – 5.30pm

 Presenter Tania Goatley, Partner, Bell Gully Anne Callinan, Partner, Simpson Grierson Dot Benson, Credit Deputy General Counsel, Commerce Commission

 Chair Steve Dukeson, Principal, Dukesons Business Law

Are you Trust Fit? – Varying, Resettlements, Winding Up and Mediation In Person | Live Stream The new Trusts Act and continuing developments in relationship property laws have led many clients to reconsider existing trust structures, and either look to update old trust deeds, or to take the opportunity to substantially restructure, resettle or simply wind-up existing trusts. This seminar will examine the processes which can be adopted to vary, resettle or wind-up a trust and the issues that can arise from those processes.

The seminar will also look at the Trusts Act from a mediation perspective and will cover the specific ADR provisions in the Act, as well as how trustees’ costs are likely to be treated on compromise.

Learning outcomes: •

•

•

8

Understand better the ability to vary, restructure or wind up a trust including common fetters on powers of variation included in trust deeds and the risk that extensive variations to a trust deed can result in a deemed resettlement, with consequential issues including tax issues.

Learn more about beneficiary considerations upon a resettlement and the extent to which a beneficiary may have rights to prevent or influence a proposed resettlement and what steps trustees can take to protect themselves in difficult situations.

Gain insights into the specific ADR provisions in the Act, as well as how trustees’ costs are likely to be treated on compromise.

 Seminar Livestream CPD 2 hrs

 Tue, 10 Nov 4pm – 6.15pm

 Presenter Jarrod Walker, Partner, Chapman Tripp Carole Smith, Barrister, FortyEight Shortland Barristers

 Chair Bill Patterson, Partner, Patterson Hopkins

LawNews Issue 38 | 30 Oct 2020

CPD in Brief Advising Company Directors: The Implications of the Supreme Court’s Decision in Debut Homes

 Webinar

The Supreme Court’s recent decision in Debut Homes is the first from the Court addressing the scope of directors’ duties when nearing insolvency, including the duty of loyalty and the duty not to engage in reckless trading. In this webinar, David Friar and Tim Fitzgerald will consider the practical implications of the decision for directors and their advisors.

Presenters: David Friar, Partner, Bell Gully; Tim Fitzgerald, Partner, Bell Gully

CPD 1.25 hrs

Corporate Restructuring: Navigating Covid-19

 Webinar

Covid-19 has already had a dramatic impact on the tourism, accommodation, hospitality and retail sectors, but the broader economic impact of Covid-19 is yet to be felt by the wider economy. In this session, we will provide you with an overview of the restructuring tools available to corporates, so that you are aware of options should your clients call seeking advice to manage risk or distress. We will also touch on relief for directors and businesses and early warning signs to look for.

Presenters: Conor McElhinney, Partner, McGrathNicol; Laura O’Gorman, Barrister, Bankside Chambers

CPD 1.25 hrs

Family Law Conference 2020

 Conference Livestream

In person | Live Stream This conference will cover how to run a Relationship Property case from go to whoa.

With a focus on the different stages you’ll have to navigate, the presenters will guide you through the various issues you will have to consider.

Presenters: Brian Carter, Barrister, Bastion Chambers; Alissa Bell, Partner, McVeagh Fleming; Sarah Bush, Partner, Inder Lynch Lawyers; Inger Blackford, Barrister, Trinity Chambers Chair: Lynda Kearns, Barrister, Bastion Chambers

 Mon, 16 Nov 4pm – 5.15pm

 Tue, 17 Nov 4pm – 5.15pm

CPD 7 hrs

 Wed, 18 Nov 9am – 5pm

Leading in Law Workshop – Leading Others

 Workshop

This distilled leadership development programme provides participants with a range of practical leadership insights, behaviours and tools. 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.

Facilitator: Tony Gardner, Managing Director, Archetype Leadership + Teams

CPD 4 hrs

ADLS/SCA (NZ) Unit Titles/Bodies Corporate Half-Day Conference 2020 In person | Live Stream Once again, the half-day conference will be packed with a great selection of pertinent and practical topics relating to Unit Titles and Bodies Corporate, presented by experienced lawyers, property managers and other professionals.

Early Bird offer available for bookings made before 8 November 2020.

Presenters: Thomas Gibbons; Joanna Pidgeon; Ian Jespersen; Liza Fry-Irvine; Andrew Hough; Vicki Toan; Wendy Baker; Julie McLean; Paula Beaton; Adriana Radich; Anita Reinecke; Charlotte Muggeridge; Kathryn Clark; Ben Thomson Chair: Thomas Gibbons

Preparing Client-Focused Opinions Preparing an opinion is an essential part of being a lawyer, but doing it well is another matter. This webinar will provide practical insights on how to deliver a client-focused opinion – ensuring you provide effective advice and maximise client service.

Presenters: Siobhan Cervin, Barrister, Mills Lane Chambers; Rachel O’Brien, Head of Privacy & Data Ethics, BNZ

 Thu, 19 Nov 9am – 1.15pm

 Conference Livestream CPD 4 hrs

 Thu, 19 Nov 12.30pm – 5pm

 Webinar CPD 1 hr

 Tue, 24 Nov 1pm – 2pm

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.

Burning Issues in Employment Law Forum 2020 Thursday 5 November | Forum | 2 CPD hours Visit adls.org.nz for more information.

9

Continued from page 7

Solicitor Role (Part-time) in Community Law

The only time she became distraught, she says, is when her parents decided to stay put in the UK rather than travelling to the safety of New Zealand. At the time, British Prime Minister Boris Johnson was warning that every family should expect someone to die prematurely from the virus. “It was a signal to me that they were going to go for this herd immunity approach – just let it go and hopefully the people who are unwell will stay home. I did some back-of-theenvelope calculations and worked out how many people were going to die, and I thought if my mum caught it, she’d be one of them.”

Do you want to make a difference as a lawyer? Do you want to work in a supportive community setting? Auckland Disability Law (ADL) has an exciting opportunity for you in our part-time Solicitor role.

What New Zealand should be doing now, she says, is adopt a ‘Swiss cheese’ approach. Like the holes in Swiss cheese, our measures to combat Covid-19 will have gaps. No single thing will be perfect and every response has the potential to fail. New Zealand can be considered as a large slice of Swiss cheese with one small, but deliberate, hole – the border – to allow New Zealanders to return.

Another slice is managed isolation and quarantine – “a huge undertaking and we know human error can occur.

• Contribute to ADL’s law reform programme and legal information projects.

“What we do is layer-up a few slices of cheese – using the app, washing our hands and getting tested if you have symptoms. All these things will prevent what happened to us in August with the Auckland clusters. And we’re going to have to keep doing that for a while.”

We also need to steel ourselves for the new year. While most people are keen to see the back of 2020, “I don’t mean to depress you but the new year’s not going to be any different,” Wiles says. “We need to be appreciative of what we’ve got here and work actively to keep it that way. And we should be actively working against those who are trying to pull us apart for their own agendas. I don’t know what these agendas are because all I can see is dead people.”

So, there’s no going back to the life we had in 2019. And the life we rebuild needs to make us resistant to more pandemics because there will be more, she says. Partly it’s climate change but it’s also because humans are increasingly encroaching on the habitats of wild animals such as bats – “the most amazing harbinger of viruses”.

Senior Solicitor/Senior Associate with Partnership Opportunity We are seeking a motivated individual with 5-6+ years’ PQE to join our busy practice.

The role is full time, Monday to Friday from 8.30am to 5.00pm starting immediately.

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

In addition, strong communication skills, the ability to give practical advice and work independently are keys to success in this role. Succession partnership opportunities may be offered to the right candidate as the firm is currently in the phase of succession planning and looking for a change in partnership in the next 12-18 months.

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

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

by Friday, 20 November 2020.

Senior property/relationship property lawyer • Management of property law team, relationship property, trusts, wills and estates.

• Established busy central city law firm. One principal, one senior lawyer, two junior lawyers, supporting law clerks. Up-to-date systems.

• Firm expertise in Public Works Act compensation claims, charities law.

• Partnership and practice acquisition opportunity.

Contact; Warwick Wright, RAINEY COLLINS WRIGHT LAWYERS Mob: +64 27 294 4102, Email: wwright@rainey.co.nz

10

This part-time role delivers disability-related legal services and activities including: • Provide casework services to Disabled and Deaf People • Undertake legal education work This is a permanent part-time position at 22.5 hours per week. Applications close Friday 20 November 2020.

For the job description contact Preetha Suresh 09-257-5140 or preetha.suresh@adl.org.nz

OFFICE FOR RENT ALBANY Have an office with the best view of the North Shore District Court. Wait for your client’s arrival at court while you look down from your deck.

• 50 square metres of your own private lockable office space.

• 65 square metres of shared space with professional services company.

• Includes boardroom, kitchenette, bathroom, break-out area and deck.

• Signage rights and two carparks.

Call Gavin on 021503665 or email admin@rms.nz

WILL INQUIRIES LawNews The no-hassle way to source missing wills for $80.50 (GST Included) Email to: reception@adls.org.nz Post to: ADLS PO Box 58, Shortland Street, DX CP24001, Auckland 1140 Fax to: (09) 309 3726 For enquiries phone: (09) 303 5270

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

Benita Leslie LEE (nee TUKUITOGA), Late of 54 Rosier Road, Glen Eden, Auckland, chartered accountant, aged 42 (died 20’08’20) Patricia Joan LOCK, Late of 4 East Point, Manly, Whangaparaoa, de facto, retired, aged 68 (died 02’10’20) Sakeusa MATANA, Late of 52 Tabitha Crescent, Henderson, Auckland, pastor, aged 43 (died 21’07’20)

LawNews Issue 38 | 30 Oct 2020

General practice –

Office to Lease Due to my impending retirement, my offices will be available to lease from 1 April 2021, subject to notice of renewal being given to the landlord before 31 December 2020.

Superb location in High Street, close to Shortland Street. Two large offices, meeting room, reception area, file storage area, kitchenette and bathroom.

the good life on your terms We are looking for a senior general practitioner, interested in succession in the short to medium term, to lead our office in a beautiful part of Auckland’s North Shore. Experience essential.

Ideal for a sole practitioner or barrister.

Architect-designed fitout, complete with all desks, furniture, filing cabinets, shelving and other office equipment.

You can:

Contact me for further details: Peter Nolan phn@peternolan.co.nz, (09) 307 6935 or 021 608 955

• Determine the direction of this profitable practice • Draw on the mentoring and support of the soon-to- retire Principal while you decide if it’s for you

Offices Available Following some barristers leaving as a result of Covid, we have four offices available for rent, of varying sizes.

The Chambers share a refurbished floor (with separate areas) with Hussey & Co., a boutique forensic and general accounting firm. There are shared meeting rooms (a formal boardroom and a less formal meeting room), and communal entrance and client waiting area.

Telephones, internet connection, printing and secretarial services also available and some furniture available.

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

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

• Set your hours, working style and practice areas.

The business was built by its Principal to support rather than thwart a busy family life. Our clients are downto-earth and so are we. We specialise in conveyancing, relationship property and estates, but our work is hugely varied.

This is a rare chance to jump into the driver’s seat of a thriving practice ready for new leadership. Shape your own work culture. Set your own path.

Please reply in confidence with a CV to: advertiser@adls.org.nz quoting reference SGP10

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

ADLS/SCA (NZ) Unit Titles/ Bodies Corporate Half-Day Conference 2020 Thursday 19 November | 4 CPD hours Venue: Ellerslie Event Centre, Ellerslie Once again, the half-day conference will be packed with a great selection of pertinent and practical topics relating to unit titles and bodies corporate, presented by experienced lawyers, property managers and other professionals.

The conference will be followed by a networking function from 5pm.

T 09 303 5278

E cpd@adls.org.nz

W adls.org.nz

11

Senior Lawyer – Trust/Property/Business Role

CAREER OPPORTUNITY TAKAPUNA BEACH AUCKLAND

We are looking for a senior lawyer with a minimum of 5 years’ PQE to join our team. This role is to ease the workload of a Director who is moving towards retirement.

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

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

own files with minimum supervision

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

detail and operate in a collaborative team environment

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

using Infinity Software

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

• • • •

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

Morton Tee Limited is an established firm based in Takapuna Auckland with a settled client base offering a variety of interesting work.

An exciting opportunity exists for a Property Solicitor ideally with 4-5 years’ PQE to work in our general practice and supervise our residential conveyancing team.

The role will suit someone seeking greater autonomy and prospects of advancement together with a better work life balance including the benefits a Takapuna beach-based practice provides.

Confidential applications and expressions of interest should be directed to: Cristine Tee ctee@mortontee.co.nz P O Box 33133 Takapuna 0740 Auckland.

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

No Agencies please

Burning Issues in Employment Law Forum 2020 Thursday 5 November | 2 CPD hours Venue: Simpson Grierson, Auckland City This Guy Fawkes night, the Burning Issues Forum 2020 has it all – bonfires, camp fires and wild fires.

A veritable barbecued smorgasbord of the hottest and spiciest issues to emerge in these times of global challenge.

Places are limited, register now to secure your place.

T 09 303 5278

12

E cpd@adls.org.nz

W adls.org.nz