LawNews - Issue 41

NEWS Nov 19, 2021 Issue 41

Inside ■ ASSISTED DYING

Potential fishhooks in the law P06-07

■ EMPLOYMENT

Court of Appeal rules on key covid claim P03-04

Navigating our new

adls.org.nz

ASSISTED DYING LAW

Contents 03-04 MINIMUM WAGE UNION AGREEMENT

Key covid decision goes against employer

05 FIDUCIARY TRUST TORT

Duty of care: an expansion of parental limits

06-07 EUTHANASIA OBJECTION CHOICE

Is our assisted dying law open to legal challenge?

09 10-11 FEATURED CPD

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

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To subscribe, please email reception@adls.org.nz.

CPD IN BRIEF

14 EVENTS

Last chance to vote on the future of Chancery Chambers

02

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

©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.

Nov 19 2021

Photo: Aureliy / Getty Images

Issue 41

EMPLOYMENT LAW

Court of Appeal rules on key covid dispute The Court of Appeal was at pains to emphasise that its findings do not remove the ability of an employer to negotiate with employees for a reduction in hours or to take leave without pay

Jenni McManus Don’t panic! That’s the message to bosses following a longawaited Court of Appeal decision on whether employees in essential businesses were entitled to be paid the minimum wage for their full contracted hours during lockdown, even though their employer had reduced their hours because of a lack of work.

The court has ruled that a group of five workers at Gate Gourmet, a supplier of catering services to domestic and international airlines, should have been paid in full, though the company had shut down a substantial part of its business, standing down many of its staff and putting others on reduced hours after 99% of flights were grounded during lockdown.

But, the court said, had Gate Gourmet reached agreement with its workers to cut their hours, or to take leave without pay, it would not have had to pay the minimum wage ($18.90 an hour or $756 a week) for hours not worked.

Before cutting their hours, Gate Gourmet offered workers the option of receiving 80% of their pay, providing the company got the government’s wage subsidy, or 80% of their pay with the rest being made up from taking annual leave for one day a week.

But whether such an agreement existed remains a matter of contention between the company and the unions representing the workers who took their claim to the Employment Relations Authority (ERA) soon after lockdown ended last year.

The ERA found in their favour but made no finding on whether there was an agreement between the parties. The only question before the Court of Appeal was whether, in the absence of an agreement, Gate Gourmet was required to pay the full minimum wage for the employees’ agreed contracted hours if they were

ready, willing and able to work, regardless of whether there was work available for them or not.

The court said, “It is not lawful to make deductions from wages for lost time not worked at the employer’s direction. The minimum wage is payable for the hours of work that the worker has agreed to perform but does not perform because of such a direction.”

The ruling overturns the ‘no work, no pay’ majority decision of the Employment Court earlier this year. This said that workers furloughed by their employer during the pandemic are not entitled to be paid the minimum wage for hours they are not actually working, even if they have employment agreements guaranteeing them 40 hours’ work a week.

Judges Joanna Holden and Kathryn Beck overturned the ERA’s determination, saying if employees were staying home, they were not working for the purposes of s 6 of the Minimum Wage Act 1983. The judges acknowledged that covid-19 “did not act to suspend employee rights or employer obligations” but said the ‘expansive’ definition of work put forward by the claimants that included employer-mandated downtime would undermine the core concept of s 6 of the Act – the exchange of payment for work.

Being ready, willing and able to work is not the same as working, they said, meaning Gate Gourmet did not breach the Minimum Wage Act.

Dissent Chief Employment Court Judge Christina Inglis strongly dissented, arguing that s 6 of the Act meant if an employer decided employees were not required to work their contracted hours, those hours must still be paid for at no less than the minimum wage.

Any other interpretation of the section “ignores the widelyunderstood common law rule that, where there are agreed hours of work cancelled by the employer, wages remain payable provided the worker is ready willing and able to work those hours”.

Chief Judge Inglis said s 6 must be read in conjunction with s 7(2) which spells out the four circumstances where deductions can be made from a worker’s pay: board and lodgings, worker default, accident or illness.

The Court of Appeal has upheld her reasoning. The question now is whether the decision can be regarded as a test case and applied to other circumstances where employers shut down their businesses during lockdown, opening the floodgates to a raft of similar claims from out-of-pocket employees.

Ramifications After the Employment Court ruling, many employers feared that if the decision were overturned on appeal, they might face substantial liability if they’d struck stand-down or partial closure agreements with their staff which brought their workers’ pay below the minimum wage.

But the special circumstances applying to Sandhu v Gate

Continued on page 04 03

Continued from page 03

lockdown but the action has since settled.

Stewart, who is the convenor of the ADLS Employment Law committee, sees Gate Gourmet as a niche decision and an academic Gourmet mean this probably won’t happen, say employment analysis of the Minimum Wage Act. “We are still waiting for the big specialists Catherine Stewart and Peter Kiely. test case involving a government-mandated lockdown, meaning the Significantly, the Court of Appeal was at pains to emphasise employees are ready, willing and able to work,” she says. that its findings do not remove the ability of an employer to In her view, Gate Gourmet is not specific authority beyond negotiate with employees for a reduction in hours or to take two contextual points: the interpretation of the Act and that the leave without pay. And, they say, it’s also significant that Gate case deals with essential workers who were Gourmet was deemed to be providing an not prohibited from working pursuant to the essential service, even though there was little This decision government mandate. work available for employees. It was not part is restricted But while it doesn’t explicitly address the of the government’s mandated shutdown of and limited on issue of other, non-essential workers who businesses during the first lockdown last year. lost pay during lockdown, “you could mount “This decision is restricted and limited on one important a respectable argument to say you can one important fact: that Gate Gourmet was an fact: that Gate extrapolate this decision to apply to others”, essential service,” Kiely says.

Gourmet was an she says. “The Court of Appeal didn’t have to “The problem arises where, as it seems essential service explicitly address this issue so I don’t think you happened in this case, the employer says, ‘don’t can say this is what the case stands for, but the come to work and we’ll pay you only 80%’ which question of wages protection is not limited to in this case turned out to be less than the the Minimum Wage Act.” minimum entitlement.

The other issue, Stewart says, is that Gate Gourmet applied “The real issue, and this has been sent back to the Authority, for the wage subsidy on 26 March last year. The following day, is exactly what was agreed. Gate Gourmet seems to have argued the government changed the rules, requiring all recipients of the that what was agreed was a reduction of hours and rather than wage subsidy to sign a declaration stating that they would not being made redundant, [the employees] would receive the wage cut wages or make any other changes to workers’ employment subsidy.” The unions, however, appeared to have a different view. agreements. This meant that employers applying for the wage “The burden will be on the employer to show that its papersubsidy on or after 27 March would have been aware of these work is tidy – what they’d agreed,” Kiely says. obligations, meaning few (if any) would be in the same position as A better test case for determining entitlements when workers Gate Gourmet. were ready, willing and able for work but were barred from doing The Court of Appeal has set aside the Employment Court’s so by government mandate would have been the action brought decision and reinstated the determination of the ERA which will by workers at the Dove Hospice shop, he said. This was not now consider any outstanding matters. ■ considered to be an essential business and was closed during

Peter Kiely

Catherine Stewart

Message from ADLS President Marie Dyhrberg QC

Marie Dyhrberg QC

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The covid virus is showing no signs of being eliminated, and the daily number of covid-positive people is increasing. VMR facilities are offered to counsel and clients as the best method of appearance to reduce foot traffic in courts. In such circumstances, a departure from the usual course of courtroom practice will not attract criticism. No doubt more people present in the courtroom has the potential of increased spread of the virus.

We have watched with concern the increasing frequency of covid-positive defendants appearing in our lower courts. It is also a significant concern that there are numbers of lawyers present in the courtrooms, despite there not being a need for personal attendances or the matter being dealt with is not a matter of those lawyers.

Counsel are asked that they give serious consideration as to the need to be physically present at court on any matter and if there is a need to be present, then counsel enter the courtroom only when their matter has been called.

If you do not need to be at court in person, please do not go.

If you have to go to court, stay out of the courtroom until your matter is called. ■

Nov 19 2021 Issue 41

TRUST LAW

A new tort: breaching a fiduciary duty to a child Anthony Grant

The father, knowing they might make a claim against his estate after he died, resolved to settle his assets on a trust to defeat them

that their father breached his fiduciary duty to them when he transferred assets to a trust for the purpose of This article is based on the muchavoiding his obligations to them. The awaited decision that Gwyn J delivered transfer had taken place many years on 5 November 2021 in AB & C v D & E after they had left home and many [2021] NZHC 2997. years after their father’s cruelty to and The plaintiffs were three children abuse of them had taken place. of Mr Z. Mr Z was a violent and cruel man who caused his children great Gwyn J held that the fiduciary duty Anthony Grant suffering during their youth. He inflicted Mr Z owed to his children was limited harms that have caused them to be to an obligation to “refrain from sexually disadvantaged in various ways as adults. They have or physically assaulting them”. This is important as been harmed for life. it indicates that the tort will not extend to lesser The father, knowing they might make a claim conduct. against his estate after he died, resolved to settle his While the relationship between an infant and assets on a trust to defeat them. In this proceeding, a parent is inherently fiduciary, she said that “the the children sought orders that the transfer of his relationship with an adult child to their parent is of a assets to the trust should be set aside and for the assets to fall into the father’s estate where they could be awarded to the children for breach of his fiduciary The notion that a parent can duties to them. be sued by a child for breach The notion that a parent can be sued by a child of fiduciary duty has sat on for breach of fiduciary duty has sat on the perimeter of the law in New Zealand. It is not a new notion: the the perimeter of the law in Supreme Court of Canada discussed it at length in a New Zealand case that was reported in 1992.

Gwyn J documented in 11 pages of her judgment the appalling brutality of Mr Z and the harms he inflicted on his children. A dispassionate reader of this account will conclude that the father ought not to be non-fiduciary kind”. [133] allowed to cause such harm and leave his children How then could the disposition of the father’s with no remedy. assets to the trust be set aside?

While it is accepted that parents of infants owe Gwyn J held that: fiduciary duties to them, it is not accepted that parents “At the time he gifted the property [to the trust] generally owe fiduciary duties to adult children.

Mr Z owed each of the plaintiffs a duty to recognise them as members of his family and Transferred assets to provide for them from his wealth, due to the vulnerability [that] his earlier breach of fiduciary The main act the adult children complained of was

duties had caused them.” [173] She held that the transfer of the assets to the trust in these circumstances “was in breach of the fiduciary duties I have found Mr Z owed to the plaintiffs”. [174] The judge went out of her way to distinguish this case from other cases where a child might want to sue a parent. She said it was appropriate: “to be cautious in concluding that a fiduciary relationship exists … for what may be seen as illegitimate intrusions on parental authority and decision-making”. [159] She held that even though Mr Z may not have understood his parental obligations as a fiduciary: “his knowledge of his treatment of his children together with his desire to ensure they were not able to make any legal claim against his estate constitutes knowledge he was transferring the property in breach of his fiduciary obligations”.

[178] And even though the remaining trustees lacked knowledge of the father’s mis-deeds, the knowledge of the father was to be imputed to them. [191]

Takeaways Two lessons can be taken from this case: ■ It would have been a grave injustice if the children had not been able to set aside the transfer of assets to the trust and gain access to assets that could give them some recompense for the harms the father had inflicted on them; and ■ Gwyn J has been careful in confining to extreme circumstances the ambit of a claim for breach of a parent’s fiduciary duties to a child. Hopefully that will be rare. ■ Anthony Grant is an Auckland barrister specialising in trust and estates ■

05

HEALTH

Potential fishhooks in our new assisted dying law

Mental or emotional anguish could potentially be sufficient to satisfy the unbearable suffering criterion, even in the absence of physical pain

Diana Clement Assisted dying is now legal in New Zealand. The legislation will take time to bed in and, as with any law, aspects will be clarified by the courts.

LawNews asked lawyers where they anticipate those challenges might come from.

The End of Life Choice Act 2019 has been a long time coming.

Passed following a referendum at last year’s general election, the legislation enables people with a terminal illness that is likely to end their life within six months to seek medical assistance to die.

To qualify, a person must be over 18, be a New Zealand citizen or permanent resident, be in an advanced state of irreversible decline in physical health, have unbearable suffering that can’t be relieved in a way that is tolerable to the person and be competent to make an informed decision.

People cannot be considered if they have a mental disorder or illness such as dementia or are simply seeking assisted death because they are disabled, old or sick but not terminally so.

Doctors and nurse practitioners can refuse requests on conscience grounds but must then put patients in contact with the Support and Consultation for End of Life in New Zealand (SCENZ) group, a statutory body established under the legislation.

Those refusing to offer assisted dying services include most members of Hospice New Zealand. The group filed action in the High Court last year where it (unsuccessfully) sought a declaration that would enable the organisation to exercise an ‘institutional conscientious objection’ to assisted dying and to provide a ‘euthanasia-free service’ if this were to become legal after last year’s referendum.

While declining the application, largely because it was hypothetical, Justice Jillian Mallon said hospices would not be forced to provide assisted dying services against their will.

The hospice philosophy has palliative care at its core, saying it intends neither to hasten nor postpone the death of those in its care. In Auckland, Mercy Hospice and the Harbour Hospice Group 06

Photo: Rtdeleon04 | Dreamstime.com

The Act

(North Shore, Hibiscus and Warkworth/Wellsford) are refusing to offer assisted dying services although Totara Hospice in East Auckland does.

Legal challenges to the new Act, if they arise, are most likely to come under s 5, which addresses eligibility, and s 24, which deals with compulsion.

Safeguards The Act has many checks and balances. For example, a health practitioner can’t initiate discussions with patients about assisted dying. Patients can change their mind at any time.

Once approved by a GP or other practitioner, the patient is then seen by a SCENZ-approved doctor, who meets with the person, reads the medical file and carries out an examination. If the doctors are not in agreement about the patient’s competency, a psychiatric examination is also required. At any suggestion of coercion, a medical practitioner must disengage.

Russell McVeagh special counsel (public law and regulation) Catherine Marks says although there were attempts to block the law before it was passed, it has been well-drafted and was tested

Continued on page 07

Families, as third parties, would rarely have the ability to challenge a decision made by a person deemed eligible

Nov 19 2021 Issue 41

Continued from page 06

by the Hospice case.

“There will be challenges by people, but I’m not sure that they’ll be important ones or that they’ll get anywhere,” she says. “It has been demonstrated to have lots of safeguards and it has gone through rigorous amendments.

Marks cites similar legislation in the Australian state of Victoria, where she says there has been high compliance. “If you just look at all the countries [that offer] assisted dying, there just isn’t a whole load of litigation.”

She says potential challenges to the Act have already been litigated in an action taken by Hospice New Zealand, which asked the court to rule on a number of questions including whether organisations could conscientiously object to providing assisted dying services. But not everyone agrees that the law is done and dusted and won’t be challenged. LawNews spoke with presenters from an ADLS CPD seminar on medically assisted dying.

Eligibility Otago University’s Dr Jeanne Snelling’s teaching spans both law and medicine. Snelling presented at the ADLS seminar and says eligibility addressed by s 5 of the Act is not straightforward.

To be eligible, patients must meet all criteria for assisted dying.

One that could prove subjective is ‘unbearable suffering’, Snelling says. “Whether a person is experiencing suffering and, if so, whether such suffering is unbearable are inherently subjective matters.”

Some people consider a severe migraine to be unbearable, while more stoic individuals might feel able to endure levels of pain or discomfort that would cause most of us to wilt, she says.

Grant Illingworth QC, who also presented at the seminar, notes that there is no express statutory requirement for the suffering to be physical.

“In other words, mental or emotional anguish could potentially be sufficient to satisfy the unbearable suffering criterion, even in the absence of physical pain. It is unclear at present whether, as a matter of law, this more liberal interpretation is correct.”

The next question is whether there must be a link between the patient’s terminal illness, their irreversible physical decline and their unbearable suffering.

“Are these criteria required to be causally connected or are they to be viewed as stand-alone issues? The better interpretation is probably that they are intended to be causally connected, in the sense that the illness has caused both the advanced physical decline and the unbearable suffering. But again, whether this interpretation is correct in law remains to be seen.”

Illingworth campaigned against the law but says he has retired that hat. “My lobbying days are over. That battle has been lost and I accept that.”

Age discrimination Illingworth says it’s not inconceivable that a teenager could argue that the age provision in the Act is inconsistent with the Human Rights Act 1993.

“It could be that someone could ask for a declaration of inconsistency on the basis that Parliament should not be discriminating on the basis of age. A 16-year-old might say, ‘I’m eligible in every respect other than age. Why am I being denied the opportunity to do this? That’s discrimination on the grounds of age and I want the court to declare that I’m being denied that opportunity.’ This could then be used politically to lobby for a change in the eligibility section.”

Jeanne Snelling

Competent or not The final criterion is that a person must be competent to make a decision, says Snelling. The decision to end one’s life has such gravity that people must have full capacity to make an informed decision. As a safeguard, the Act requires psychiatric advice when the patient’s competence is in doubt.

Illingworth anticipates that there could be litigation by a patient refused assisted dying after being deemed not competent by medical practitioners.

“If the psychiatrist says, ‘no, this person is not competent’, [but] the person then says ‘yes, I am and you’ve made a mistake’, that could end up in court,” he says.

Coercion Another legal issue involves the risk of patients being pressured by families or others to apply for assisted dying.

Section 24 of the Act requires that no further action by the medical practitioners can be taken if they suspect on reasonable grounds that the patient is not expressing their wish to receive assisted dying free from pressure from any other person.

In theory, says Illingworth, a patient refused assisted dying on the grounds of medical professionals suspecting pressure, could then litigate. They could argue that pressure has not been correctly understood by the relevant health practitioner, says Illingworth.

Pressure is not inconceivable considering the high level of elder abuse in New Zealand. The New Zealand Longitudinal Study of Ageing found that one in 10 people aged over 65 had suffered elder abuse, which could be physical, financial or neglect.

Illingworth anticipates a scenario where a patient about to go through with the procedure says something like, “I really wish my family hadn’t put me under so much pressure,” at which point the doctor or nurse would need to stop the process. If the person then said, “No, no, I didn’t mean that,” the medical professionals would still be obliged to stop and the patient would need to go to court to proceed.

He says there are no questions in the forms filled in by patients that ask whether they have been put under pressure.

While these types of issues weren’t explored in our debates, I think the courts would adopt a narrow approach whereby terminal illness means an ‘incurable’ illness

Palliative care One issue that could arise relates to the inability of patients to access palliative care and/or non-Pharmac drugs, says Richard McLeod, of McLeod & Associates.

“Could a doctor, conceivably in the Far North, refuse a patient’s

Continued on page 15 07

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Briefs Criminal responsibility The Law Council of Australia says it welcomes a decision by the Australian State Attorney-General to support the development of a proposal to lift the age of criminal responsibility from 10 years to 12.

But President Jacoba Brasch QC said an opportunity had been missed to bring Australia into line with international human rights standards and says the council will continue to lobby for the age to be raised to 14. “At 12, a child cannot lawfully sign onto Facebook but can be questioned, arrested, detained and imprisoned,” she said. “The minimum age for criminal responsibility should be raised to 14 in all jurisdictions, for all offences, without exception.”

In New Zealand, children aged between 10 and 13 can be charged with serious offences but cannot be convicted unless they knew the act or omission was wrong or contrary to law. Under the Sentencing Act 2002, a child or young person under 17 cannot be sentenced to prison or home detention unless they commit a category 4 offence (such as murder or manslaughter) or an offence where the maximum penalty is more than 14 years’ jail.

The Great Resignation More than 35 million Americans have quit their jobs this year – an all-time high – as part of the so-called Great Resignation, a term used to describe the unprecedented wave of Americans who have left their jobs in recent months.

In September alone, a record 4.4 million workers left their jobs voluntarily.

Texan psychologist Anthony Klotz, who coined the term Great Resignation, says part of the reason is burnout, combined with pandemic epiphanies and disputes with bosses about mandatory returns to the office.

Job openings in the US have reached 10.5 million, well above the unemployment number of 7.4 million

Lawyer disciplined A Sydney lawyer who unsuccessfully challenged the NSW covid-19 vaccine mandates has had his practising certificate suspended after posting on his firm’s social media account that, among other things, the decision “basically said it is ok to kill anyone you like”.

Nathan Buckley, the high-profile principal of G & B Lawyers, had raised more than A$575k in crowd-funding to challenge various covid public health orders. The law society wrote to Buckley on 20 October, saying the posts demonstrated he was unable to fulfil the inherent requirements of an Australian legal practitioner. His statements were likely to mislead and to undermine confidence in the administration of justice and/or impair the authority of the judge and the NSW Supreme Court, the law society said.

He has been suspended until June 2022. ■

Nov 19 2021 Issue 41

NEWS Nov 12, 2021 Issue 40

Letters to

the editor

Inside ■ TRUST LAW

The risk of being an independent professional trustee P07

■ RECRUITMENT

Has The Great Resignation hit your firm?

P11

Glaring gaps in harmful

adls.org.nz

DIGITAL COMMS BILL

Netsafe is not an enforcement agency under the Act. It is the approved agency and thus falls within the scope of the civil enforcement regime

In defence of Netsafe In the article about the amendments to the Harmful Digital Communications Act (HDCA) – LawNews issue 40 – it seems to me that Ruth Money confuses the civil enforcement regime of the Act with the criminal offence provisions – s 22 and soon-to-be s 22A under the amendment.

The reason I suggest she is confused lies in her misunderstanding of the role of Netsafe. Netsafe is not an enforcement agency under the Act. It is the approved agency and thus falls within the scope of the civil enforcement regime.

The functions of the approved agency are set out in s 8 HDCA. They are: (a) to receive and assess complaints about harm caused to individuals by digital communications; (b) to investigate complaints; (c) to use advice, negotiation, mediation and persuasion (as appropriate) to resolve complaints; (d) to establish and maintain relationships with domestic and foreign service providers, online content hosts and agencies (as appropriate) to achieve the purpose of the Act; (e) to provide education and advice on policies for online safety and conduct on the internet; and (f) to perform the other functions conferred on it by or under the Act, including functions prescribed by Order in Council made under s 7.

The agency has powers of enquiry. It may, subject to any other enactment, seek and receive any information it considers will assist it in the

performance of its functions.

This is consistent with the overarching function of the agency which is to act as a filter for complaints about digital communications and to provide a compulsory preliminary investigative and alternative dispute resolution process before the matter can qualify for the intervention of the court using the civil enforcement remedies.

The agency does not have any power of arrest. It has no authority to conduct searches under the Search and Surveillance Act. It has none of the ordinary powers of an agency (like the police) charged with investigating crime.

It is therefore unfair of Ms Money to conflate police powers of investigation of crime with those of the approved agency. To suggest their performance is ‘beyond woeful’ ignores the very positive work Netsafe has done over the years as the approved agency. My observations of the role of Netsafe as providing one of the necessary thresholds for a civil enforcement order under the Act have been positive.

However, I agree with Mr Hunt that more police resource and skill need to be applied to investigating online offending and especially in the area of offences against s 22 and the proposed s 22A HDCA. It is not the function of Netsafe to make these enquiries nor should it be. If there should appear to be evidence of criminal offending uncovered in a Netsafe enquiry as approved agency, the matter should be referred to the police.

David Harvey Auckland ■

Last chance to vote on Chancery Chambers Voting closes today on the future of Chancery Chambers.

The ADLS Council and President Marie Dyhrberg QC are recommending that members vote ‘yes’ on the proposed sale of the heritage building in downtown Auckland.

Have your say. The ballot closes at 5pm today, Friday 19 November.

For more information, please click here.

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FEATURED CPD

FINAL NOTICE

YOUTH JUSTICE JOURNEY

Children who come to the attention of police Live Stream 2 CPD hrs Thursday 25 November 4pm – 6.15pm Presenters Craig Clark; Tahu Weeks; Laura Wainwright; Gary Earley; Steven O’Connor and Zoe Monk Chair Judge FitzGerald

Trans-Tasman Resources

Children aged 10 to 13 who come to police attention are a unique and special group. The system set up for them is also special and unique; they are the quintessential embodiment of the crossover between the care and protection and the youth justice provisions of the Oranga Tamariki Act 1989 which places emphasis on taking a primarily welfare-focused approach, rather than a criminal justice one, wherever possible.

FIND OUT MORE

Webinar 1 CPD hr Tuesday 30 November 1pm – 2pm Presenters Rachael Jones, rōia matua (senior solicitor), Chapman Tripp and Josie Te Rata, rōia matua (senior solicitor), Chapman Tripp

The Supreme Court’s decision in Trans-Tasman Resources Ltd v Taranaki Whanganui Conservation Board reflects greater inclusion of tikanga Māori in our law. This webinar will explore the case and its broader implications.

RECOGNITION ENDORSEMENT APPLICABILITY

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Practising professionally in the pandemic COVID-19 CLIENTS PRIVACY

Webinar 1 CPD hr Monday 29 November 12pm – 1pm Chair and Panelist Paul Collins, Barrister, Shortland Chambers Panelists Dr Bill Hodge, Honorary Academic, Auckland University and Kathryn Dalziel, Barrister, Walker Street Chambers

How do lawyers and legal practices balance competing health and safety, human rights, and privacy obligations, with their duties to clients and employees in the current COVID-19 environment? What about lawyers’ civil liberties, and where is the line? Our expert panel will raise important questions for consideration and offer insights into how lawyers can navigate this unfamiliar territory.

FIND OUT MORE 10

Nov 19 2021 Issue 41

adls.org.nz/cpd

Evidence law update

Live Stream 2 CPD hrs Wednesday 1 December 4pm – 6.15pm Presenters Scott Optican, Associate Professor, University of Auckland and Jack Oliver-Hood, barrister

DEVELOPMENTS EVIDENCE INSIGHTS

cpd@adls.org.nz

09 303 5278

Presented by two of the co-authors of the 2018 text Mahoney on Evidence: Act & Analysis, this seminar will focus on the current application of key sections of the Evidence Act 2006 in both the civil and criminal law jurisdictions. This seminar will cover recent developments related to rules of evidence that are of interest to civil and criminal law practitioners.

LIVE STREAM

Gone phishing THREAT RISK PROTECTION

Webinar 1 CPD hr Thursday 2 December 12pm – 1pm Presenter Lloyd Gallagher, Managing Partner, Gallagher & Co

This webinar is different. We don’t care about what happened to the other person, we care about how you stay alert and protect against it happening to you! We will aim to give you the knowledge to better arm yourself against information gathering, and how to recognise a potential threat actor.

LIVE STREAM

Leading your career (Wellington)

Workshop 8 CPD hrs Thursday 3 February 8.45am – 5pm Facilitators Miriam Dean QC and Liz Riversdale, Catapult

Exclusively for women lawyers with 6+ years’ PQE. Take charge of your career and realise your potential. This practical, interactive one-day workshop, led by one of New Zealand’s top QCs and one of New Zealand’s senior leadership experts, will arm you with resources, self-confidence and focus to apply immediately to your role and to enhance your future career.

CLARITY VALUES VISION

FIND OUT MORE 11

CPD IN BRIEF

Written advocacy: what judges want

Seminar 1.5 CPD hrs Tuesday 15 February 4.30pm – 6pm Presenters Raynor Asher QC, Richmond Chambers and Davey Salmon QC, Mills Lane Chambers IN PERSON

Immigration policy changes

‘Court’ by forensics

Focussing on trial and appellate submissions, the panellists will provide invaluable insights into how to approach drafting, the structure and language to be used once you put pen to paper and ways to ascertain whether you’ve achieved your purpose.

Chair Paul David QC, Eldon Chambers

LIVESTREAM

Live Stream 2 CPD hrs Wednesday 16 February 4pm – 6pm Presenters Pooja Sundar, partner, D&S Law and Lauren Qiu, principal, Stay Legal Chair Stewart Dalley, partner, D&S Law

The immigration landscape is constantly evolving. Add covid-19, lockdowns and border restrictions into the mix and what you get is a recipe for unprecedented change to immigration policy. Perhaps most notable is the introduction of the 2021 ‘one-off’ resident visa which will be tested for the first time in December 2021.

Workshop 4 CPD hrs Saturday 19 February 9am – 1.15pm Presenters Tom Coyle, managing director, Forensic Insight Ltd and Allie Coyle, director, Forensic Insight Ltd

Forensics never goes away. Every contact leaves a trace. This workshop will take you behind the scenes as a crime scene investigator, giving you a greater understanding of what type of evidence is preserved from the scene and used effectively in court, the importance of the chain of evidence and an insight into how to deal with expert forensic witnesses.

Spaces strictly limited

FIND OUT MORE

FIND OUT MORE

Class and funded litigation

In Person | Live Stream 2 CPD hrs Wednesday 23 February 4pm – 6.15pm Presenters Paul Collins; Philip Skelton QC; Angela Parlane and Jonathan Woodhams

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

IN PERSON

Children who come to the attention of police Thursday 25 November 2021 | Live Stream | 2 CPD hours Visit adls.org.nz for more information.

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LIVESTREAM

Nov 19 2021 Issue 41

WILL INQUIRIES

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

LawNEWS: The no-hassle way to source missing wills for $80.50 (GST Included) reception@adls.org.nz DX CP24001, Auckland 1140

ADLS, PO Box 58, Shortland Street, Fax: (09) 309 3726

ARMSTRONG David • Late of 34A Windermere Crescent, Blockhouse Bay, Auckland • Consultant • Aged 52 / Died 07’11’21 CUMMINGS William Alva • Late of 2 Dorsal Close, Marlin Waters, Whitianga • Married • Retired engineer • Aged 87 / Died 24’09’21 DAVIS Rewi Hawea (a.k.a DAVIS, David Rewi Hawea; DAVIS, Rewi; DAVIS, David Rewiti Hawea; DAVIS, Rewi Hewea; DAVIS, Dave) • Late of Auckland, originally from Waikare, previously resided in Russell • Retired • Aged 62 / Died 18’01’15 DENZ Lenore Phyllis • Late of 10 Kotanui Avenue, Army Bay, Whangaparaoa, Auckland

(09) 303 5270

Auckland Community Law Centre seeks applications for a Director/Manager and Supervising Lawyer The Auckland Community Law Centre, now located in the inner city, has a long history and deserved reputation for delivering quality legal assistance to the many who are not eligible for legal aid, but cannot afford private legal fees.

• Widowed • Retired office assistant • Aged 91 / Died 16’10’21

It is staffed by seven full-time lawyers, three administration support staff, funded by Ministry of Justice and supported by volunteer lawyer supervisors.

JELLICOE Christopher Harry

It operates a busy triage programme in response to phoned requests for legal assistance and staffed by senior law students on rotation. Any additional assistance needed is undertaken by the permanent staff. There is a strong staff culture of social justice and supportive interaction.

• Late of 2/42 Dale Crescent, Pakuranga, Auckland • Divorced • Retired • Aged 71 / Died 28’08’21 KEZUNOVIC Peter Dusan • Late of Auckland • Beneficiary • Aged 53 / Died 05’09’21 NUNN Esther Georgina • Late of Bupa Beachhaven Care Home, 249 Birkdale Road, Beachhaven, Auckland • Widowed • Aged 84 / Died 25’10’21 ROEBUCK Janette • Late of 15 Knightsbridge Drive, Forrest Hill, Auckland • Widow • Retired • Aged 84 / Died 01’06’21

The Centre is looking for a person with sufficient legal experience to provide leadership and guidance for the permanent staff lawyers and overall supervision of all staff. Also, most importantly, that applicant must have proven management experience.

The Centre has a high-functioning Board comprising practising lawyers and community representatives, and the position reports directly to the Board. The role requires stakeholder relations with the Ministry of Justice, Community Law Centres o Aotearoa and other community law centres, as well as working with senior members of the profession on the future of access to justice, including the judiciary, regulators, professional associations and policy makers.

This position would best fit an experienced practitioner with a practising certificate who has had a successful role in the management of a firm. The division of legal and management roles is expected to be about even and could for example suit someone who is looking to scale back from the demands of private practice. This is a rare and special opportunity: the role is varied and dynamic; the organisational culture is supportive.

This is your opportunity to practise law in a highly rewarding and meaningful way.

Please respond in writing to jo@aclc.org.nz

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Events Featured events

Connecting New Zealand Lawyers

Christchurch breakfast with the Chief Justice Dame Helen Winkelmann Friday 11 February, 2022 7.15am – 8.30am The George, 50 Park Terrace, Christchurch Learn More

New Plymouth sundowner Thursday 24 February, 2022 5.30pm – 7.30pm The Pepper Room, Millennium Hotel New Plymouth Waterfront Catering sponsored by MAS Learn More

Upcoming February

Friday 11 | Christchurch breakfast with Chief Justice Dame Helen Winkelmann Thursday 24 | New Plymouth sundowner

March

Wednesday 2 | Central Auckland express lunch Wednesday 16 | Newly Suited meet the QCs evening, Auckland Monday 28 | ADLS golf tournament

April

Wednesday 6 | Rotorua lawyers’ lunch

Auckland central express lunch Wednesday 2 March, 2022 1pm – 2pm Glass Goose, 78 Federal Street, Auckland Sponsored by CoLegal Learn More

Newly Suited meet the QCs evening Wednesday 16 March, 2022 5.30pm – 7.30pm Stanbeth House, 28 Customs Street East, Auckland CBD Learn More

ADLS golf tournament Monday 28 March, 2022 2pm – 8pm Remuera Golf Club, 120 Abbotts Way, Auckland

Soon to be added:

Feb – April Newly Suited ‘saved by the bell’ careers evening, Auckland Immigration law dinner, Auckland May – July Hamilton lawyers’ lunch Auckland breakfast with Chief Justice Dame Helen Winkelmann Employment law dinner South Auckland lawyers’ lunch Breakfast with the Attorney-General, Auckland Hawke’s Bay lawyers’ lunch Henderson lawyers’ lunch, Auckland Tauranga lawyers’ lunch Northland lawyers’ lunch

Book Here

Learn More

events@adls.org.nz

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adls.org.nz

Nov 19 2021 Issue 41

Continued from page 07 request….…. because that doctor believes the person’s inability to get quality palliative care acts as a form of coercion, compelling them to do something that they wouldn’t ordinarily or otherwise wish to do? Would that be grounds for refusing a request?

“What about a situation where a requesting patient with lung cancer told the doctor they would like euthanasia but Pharmac has refused to fund Keytruda. Is that pressure? If you go back to s 5, the person must be enduring unbearable suffering, which cannot be relieved in a way that the person considers to be tolerable.”

If a person doesn’t want to travel but was then refused assisted dying, that could be a double whammy, says Snelling.

“It’s unrealistic, however, to refuse assisted dying until we have a perfect health system. That’s a separate issue,” she says.

McLeod cited an example in Quebec in May 2018 where the Royal College of Physicians wrote to the Health Minister, warning him that the lack of access to palliative care could be forcing terminally ill people to choose euthanasia.

Family unaware Doctors or hospitals could potentially seek a declaration of whether providing the service for an individual would be lawful should circumstances arise that led to a need to test the legislation, says Snelling.

“I think a doctor or hospital themselves may say, ‘I’m prepared to provide the service but I’m unsure if your position comes within [the law]’.” Snelling points out that while a patient could go to court if refused assisted dying, families, as third parties, would rarely have the ability to challenge a decision made by a person deemed eligible.

Illingworth says, however, that family could in theory take proceedings if their relative’s life has been terminated without their knowledge and they suspect the process has not been carried out properly. If not, it could potentially be a case of manslaughter.

Frail and elderly Snelling says there will be issues at the margins of the law – for example, with eligibility for frail older people who have multiple conditions and not long left to live. The law is not completely unambiguous on this point, she says.

“There are a couple of different ways of interpreting terminal illness. Say, for example, it’s an elderly person who has a lot of conditions that together mean they’re dying but they haven’t been diagnosed with [a terminal illness].” Her personal view is that they don’t fall within the Act. Snelling says practitioners could be guided by anticipating what a court might do if required to interpret this provision. “This is a question of whether we should interpret it narrowly or broadly.”

A broad interpretation of the law would be that it’s any condition that’s fatal and will lead to death. A narrow definition would limit this to a disease that can’t be cured and will cause death.

“When the courts are required to interpret a provision, they’ll look at the text, they’ll look at the purpose and they look at the parliamentary debates to determine intent,” Snelling says. She believes it would most likely be the narrow approach.

Even then, there could be doubt about what constitutes an incurable illness.

“For example, the person has an illness that could potentially be cured but they refuse that treatment. Does that make it a terminal illness that they’re suffering from? This is a question that was directly considered by the Australian state of Victoria’s Parliament when they were introducing the Victorian legislation.

“While these types of issues weren’t explored in our debates, I think the courts would adopt a narrow approach whereby terminal illness means an ‘incurable’ illness.

“My concern is that it’s not clear to the people who are having to function under the law. It might take judicial intervention in the form of [the medical profession] asking for declaratory judgment about the meaning and the scope of those provisions to make it clear. It would be good to have some judicial clarity if we can.”

The Act requires that no further action by the medical practitioners can be taken if they suspect on reasonable grounds that the patient is not expressing their wish to receive assisted dying free from pressure from any other person

Section 11 Illingworth says s 11 will need some clarification. It allows anyone to request assisted dying, even if they do not meet the criteria. The medical professional still needs to go through preliminary steps with them, even if it’s clear they will not qualify.

“I suspect the courts will interpret this in a way that modifies the literal meaning of the words and provide something a little bit more straightforward.”

More information can be found here and the legislation here. ■

Membership offers a range of benefits, including:

Become an ADLS Member adls.org.nz/join

■ ■ ■ ■ ■ ■

LawNews and the ADLS Monday e-Bulletin Collegiality events available at special member rates A variety of CPD activities all at special member rates Eligibility to apply for ADLS Committees Enhanced Airpoints Dollars™ earn rate on eligible ADLS purchases Member pricing on textbooks and related products at the ADLS Bookstore, and more

membership@adls.org.nz

09 303 5270

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LEGAL EXECUTIVE

PRO-ACTIVE SENIOR LAWYER

Our busy and long-established Takapuna Law Firm has a position available for an intermediate/senior Legal Executive.

Experience in the following areas is essential: • Trusts and Property focus with exposure to other areas of practice • Probate and estate administration • The ability to manage files with minimal supervision • Willingness to form excellent relationships with clients and staff The role is varied and busy, however with the support of the Director and Associates. We offer a pleasant office environment in the heart of Takapuna, close to cafés and the beach.

Remuneration will be commensurate with skills and experience.

Please forward your CV to cristine@mortontee.co.nz

Commercial/Commercial Property, 5 YEARS’+ PQE

• Competitive salary and bonus scheme • Newmarket location, modern approach • Opportunity to join a busy boutique legal practice If you have strong commercial and commercial property law experience, excellent communication skills and are ready to take your career to the next level, we want to talk to you. We are seeking a senior lawyer with the right skills, but more importantly the right attitude and drive to join a growing legal business.

Please apply with CV and academic record to sara@lockhartlegal.co.nz

A specialist accounting practice is looking to sub-lease in the Auckland CBD

PROPERTY LAWYER

Intermediate/Senior Solicitor We are a busy provincial law firm situated at the gateway to

Our sub-lease is coming to an end and we are seeking furnished or unfurnished office space in the Auckland CBD of approximately 60m² to 80m² with the provision of reception and meeting room facilities (no car parks required). We are flexible in regard to terms of a sub-lease. We can provide positive references if required.

Thamesa solicitor, ideally with the Coromandel andLocation: seek to employ at least 5 years’ experience in property law, to work in our Aregeneral you looking for a lifestyle change? Join our busy and modern law practice practice. located at the gateway to the Coromandel.

We offer a challenging and interesting range of work in a Applicants should have at least 5 years’ experience in property, trusts and estates. supportive congenial working environment.

Definite prospects for advancement exist for the right candidate.

If you would like to sub-lease to a reputable accounting practice, please contact: Rowan Chapman 09 215 4764 | rowan@chapmanatkins.co.nz

You can look forward to great work/life balance with partnership opportunities.

This is Applications an opportunity to should be part of a progressive practice with CV be forwarded by email to: where a positive work/life balance is a priority.

maree@millerpoulgrain.co.nz

Applications with CV should be forwarded by email to rodney@millerpoulgrain.co.nz

Examination-in-Chief and Re-Examination Workshop Saturday 26 March | 9.00am - 1.15pm In this learn-by-doing workshop, you will get to test your examination-in-chief and reexamination skills and receive individualised feedback from experienced practitioners and members of the judiciary.

T 09 303 5278

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Nov 19 2021 Issue 41

Lawyer – Minimum 8 Years’ PQE – Pukekohe Are you a lawyer with 8+ Years of experience as a general practitioner seeking a partnership in the next year or two? Do you have a background in property, relationship property, trusts, commercial and estate law?

INTERMEDIATE CROWN PROSECUTOR We seek a practitioner with a minimum of 4 years’ post-qualification experience to carry out prosecution work in the Timaru, Oamaru, Ashburton and Christchurch Courts. The successful applicant will have the ability to undertake jury trials immediately.

Blackhawk Law is a well-established highly profitable small law firm specialising in Property Law looking for someone to join our friendly team. Walk into a great long-term client base ready for you to get started in a location close to Auckland that has experienced nothing but growth in the Property Market, but also offers a lifestyle.

The role will be as second-in-charge to the Crown Solicitor and will carry with it significant responsibility given your involvement in a small prosecution team. The quality and breadth of work gives the opportunity for rapid career advancement and excellent career promotion.

This business is future-proofed against Covid 19 disruptions with tried, tested and proven systems that allow the business to continue through any alert level seamlessly.

Timaru offers an excellent climate and relaxed and affordable lifestyle with low house prices (median $437,000), excellent schools, a short commute and easy access to dozens of recreational and leisure pursuits. Timaru is ideally positioned between Christchurch and Dunedin.

We are looking for someone with an outgoing friendly nature, leaderships skills and you will need to be willing and capable of working in a team of lovely ladies. You will be very busy but well remunerated with a Salary package that will include bonuses with a view to Partnership in a short time-frame for the right candidate.

A second-to-none salary package, flexible working arrangements, free car-parking and moving expenses will be negotiated with the successful applicant.

If this sounds like the job for you, please forward your application by email to: kim@blackhawklaw.co.nz

Confidential applications and expressions of interest should be directed to Shirley Baker, E-mail: shirley@gressons.co.nz, Telephone: 03 687 8004, by 29 November 2021.

Trans-Tasman Resources Tuesday 30 November | 1.00pm - 2.00pm This webinar will explore the nature and facts of the Trans-Tasman Resources Ltd; its progression through the High Court, Court of Appeal and Supreme Court; and the findings, placing it within the context of other case law to date, and focusing on the potential application of tikanga going forward.

T 09 303 5278

E cpd@adls.org.nz

W adls.org.nz/cpd

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