LawNews - Issue 42

THIS WEEK’S ARTICLES

Issue 42 27 Nov 2020

Why lawyers must fight to retain encryption pages 1,2,4 & 5

Challenging wills: the unpredictability of litigation p3

Class actions just got a whole lot easier p7

LawNews adls.org.nz

TECHNOLOGY & LAW

Govt de-encryption move puts client data at risk

By Diana Clement

The New Zealand government, along with its Five Eyes intelligence partners, has called for tech firms to open a ‘back door’ to encrypted communications to make it easier for law enforcement to access information.

Just five days before this year’s election, when the country’s attention was fixated on politics, Andrew Little – then Justice Minister and now the minister responsible for both the GCSB and NZSIS – signed a controversial statement asking technology companies such as Facebook, Google and Apple to allow access to encrypted communications and data passing through their services.

Australia has already come to the party. The controversial Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 enables Australian law enforcement and intelligence agencies to compel anyone providing a service or product that involves telecommunications or the internet to remove electronic protection, such as encryption.

Not only is it an offence not to comply but those required to turn over information are not permitted to disclose that the compulsion order even exists.

New Zealand organisations which store information on Australian servers have been warned that their data might be at risk. Read more.

Tech companies encrypt – ie, scramble - their users’ messages, audio and video communications from ‘end to end’, meaning they can’t be accessed by others. This gives individuals, businesses and other organisations total privacy, but is a significant barrier to legal access to those messages by law enforcement.

The Five Eyes countries, along with Japan and

Photo by Andriy Onnfriyenko/Getty Images

What are the implications for law firms and their clients’ data?

Encryption is vital for protecting confidential information

We really do need access to encryption for all kinds of privacy and security reasons but that’s not to say the policy and law enforcement concerns raised don’t matter

India which also signed the agreement, argue that unbreakable encryption technology creates severe risks to public safety, in particular to vulnerable groups such as sexually exploited children. But any back door will affect all internet users.

And the statement Little signed is inconsistent with New Zealand’s cybersecurity strategy, which notes that secure data is fundamental to a robust and thriving society. It also warns that as more people use and do business on the internet, the payoffs from cyber and cyber-enabled crimes will increase, attracting greater numbers of cybercriminals Client files Lawyers whose eyes might glaze over at the mention of technology should pay attention.

End-to-end encryption as a concept is simple to understand and among the data at risk are their Continued on page 2

TECHNOLOGY & LAW

Govt de-encryption move puts client data at risk Continued from page 1

(whose patron is Dame Silvia Cartwright).

client files and other confidential information.

ADLS Technology & Law committee member James Ting-Edwards likens unencrypted communications to a postcard that can be read by anyone whose hands it passes through. An encrypted communication would mean the postcard was placed inside an envelope.

Since whistle-blower Edward Snowden leaked classified information revealing the extent of global surveillance programs, technology companies have increasingly added security to their services, including unbreakable encryption.

But it won’t necessarily be safe if the Five Eyes governments have their way and a back door is opened to monitor those communications and data on organisations’ servers or in the cloud. Criminals and state-sponsored actors using cyber tools for geopolitical advantage could be given a new way to break encrypted communications for their own ends.

Andrew Little’s signing of the document marked a change in our approach, Betkier says. In a report about the proposal, the foundation called for careful review and validation by the New Zealand public.

End-to-end encryption is what enables business to thrive online.

Former Commerce & Consumer Affairs Minister Kris Faafoi, when launching New Zealand’s cybersecurity strategy in 2019, said encryption ranged from the basic functioning of New Zealand’s economy and society – our jobs, banks and schools – to the delivery of government and telecommunications and electricity services.

“We need to know that our systems will keep running, that our personal and commercial information is safe and that we can trust the information that we use to make decisions,” he said.

Ting-Edwards says anyone seeking to comply with privacy law and those with obligations of confidence, such as lawyers, needs encryption.

“It’s very easy to find people pushing a hard-line position on both sides of this. Now that the internet includes four billion people there are some difficult, nuanced problems about how the administration of social life, how the admin of government happens in a world where this exists.

“We really do need access to encryption for all kinds of privacy and security reasons but that’s not to say the policy and law enforcement concerns raised don’t matter. They do matter.”

Banks and professionals Security breaches resulting from a back door could affect our communications with banks and commerce, and professionals such as lawyers and doctors who need security to ensure the confidentiality of their clients’ data, says Marcin Betkier, a law lecturer at Victoria University and a committee member of the Privacy Foundation NZ

It will reduce confidence in e-commerce, independent journalism, whistleblowing and many other sectors or scenarios where the confidentiality and integrity of information is essential “We are concerned that the New Zealand government has signed the statement without wider public consultation or discussion,” the foundation wrote. “This is critical in light of the direct impact that undermining encryption would have on New Zealanders’ privacy and cybersecurity.”

In an interview with LawNews Betkier added: “It would be naïve to think you could have some sort of private, exclusive access for Five Eyes. Not Russia, China or North Korea. It’s not that easy.”

Systems leak sooner or later.

Betkier cites the case of Moscow-based cybersecurity company Kaspersky Lab, which in 2017 either actively or passively enabled the hack of a US National Security Agency contractor’s data.

The contractor was working to replace hacking tools that had been leaked by Snowden. The

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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

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hacked information ended up in the hands of the Russian government.

Ting-Edwards adds: “It seems really important that New Zealand as a small participant in the multilateral order is careful not to sign up to precedents that we would be unhappy with other governments using to serve their own ends in their own ways. “ Having signed the international statement doesn’t mean it will come to fruition, however. Privacy law expert Tania Goatley, a partner at Bell Gully, says there is no legal requirement for the government to execute such statements on behalf of New Zealanders.

“However, the general role of a government in any society is to ensure its citizens are protected and that parameters are put in place to ensure the safety of those citizens.” Executing the international statement therefore might be seen by government representatives as necessary to protect the more vulnerable members of New Zealand’s society.

Goatley says it indicates the signatories generally support encryption technologies, but that encryption that wholly precludes legal access to any content should be addressed, to enable access to illegal content in circumstances where access is authorised, necessary and proportionate, and subject to strong safeguards and oversight.

If the government introduced strong safeguards and oversight and supported encryption technologies as it stated, then there are some good policy arguments in favour of implementing the international statement, she said.

Privacy risks But Goatley says several concerns might arise around implementation. These include a definition of what constitutes illegal content, who will monitor enforcement agencies to ensure their access and use of information is only for enforcement and safety purposes, and whether there would be penalties for non-compliance or unjustifiable intrusions into personal privacy.

Another concern, she says, may be the extent to which it is permissible to erode individual privacy rights to protect the vulnerable. “This is 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.

LawNews Issue 42 | 27 Nov 2020

TRUST LAW

Challenges to wills: the unpredictability of litigation

By Anthony Grant

Today’s article concerns O’Neill v O’Neill [2020] NZHC 2988 (13 November 2020), a decision of Downs J. A Hamilton solicitor died, leaving only one asset of significance – a half-interest in a house worth about $500,000.

He had three adult children. In an earlier will he gave his wife a life interest in his half-interest in the house and left the half-interest to the three children after her death. In his final will he gave his wife the half-interest outright and the three children got nothing.

The solicitor had been in a relationship with his wife for 37 years.

The three children sued, claiming lack of testamentary capacity and undue influence and sought an award under the Family Protection Act. This was some of the evidence about O’Neill’s lack of testamentary capacity: he was forgetful and repeated the same question every couple of minutes, he would forget a conversation within minutes and then ask the same question again, “whenever he was outside his normal environment… he would need complete guidance and direction on just about everything”, he couldn’t remember the ages of his children and he relied on his wife to write notes on a board on the dining room table to remind him when she would be home, whether someone was coming to pick him up for an outing or if a cleaner was coming etc.

Three doctors said he had sufficient mental capacity to make a will and their evidence was upheld. The claim of testamentary incapacity failed.

The children said when he made his final will, their father did so as a result of his wife’s undue

influence. He had poor eyesight and relied on his wife “to take him everywhere” and he was substantially dependent on her. This and other evidence was held not to be sufficient to establish a claim of undue influence.

indeed anyone – to predict.

That left the claim under the Family Protection Act and this article is primarily about this particular cause of action.

Two of the children were well off but the third appeared not to be. There is ample authority for the proposition that children who are well off but who receive nothing from a parent’s will might reasonably expect to get a payment of up to 10% of an estate for ‘recognition’ or ‘support’. But the court gave them nothing, with Downs J saying, “Every case under the Family Protection Act turns on its facts. Richardson P made the same point in [the leading case of] Williams v Aucutt, as did Blanchard J writing separately, “[The facts] here count against an award.”

The regime can be contrasted with the ‘forced heirship’ regimes in continental Europe and in many Islamic countries where wealth devolves in stated proportions to family members.

By contrast, the Family Protection Act gives no bright lines for the way assets should devolve amongst family members.

The principles that New Zealand judges should apply have varied over time with the Court of Appeal having said a few years ago that the courts had been too interventionist and ought to make fewer changes than before.

The case illustrates the uncertainty of litigation involving claims of testamentary incapacity and particularly claims under the Family Protection Act. I suspect most counsel, advising children who received nothing under their father’s will, would advise them that a claim under the Family Protection Act would be likely to succeed and there would be a reasonable prospect that they might receive about 10% of the estate – albeit after the wife had died.

The judge has not yet ruled on costs and whether the children must pay the defendant’s costs for a four-day trial. If they have to pay the widow’s costs, having received nothing from the estate, they will surely feel this area of law is so uncertain as not to justify the risks and expense of litigation.

In making these comments I am not criticising the decision of Downs J. The point is simply to show how fact-specific so many of these cases can be and how the outcome of cases under the Family Protection Act can be impossible for counsel – or

It is hard to think of any area of the law in this country that gives judges such wide discretions and makes the outcome of such claims so unpredictable. And, being so unpredictable, so unappealable as well.

This area of the law is inherently uncertain because there are no prevailing beliefs within New Zealand society as to the ‘right’ way assets should devolve on death. There are widely-divergent opinions.

Some people believe children should be made to fend for themselves. Others think all parental wealth should devolve to a spouse and children.

But how much should devolve to the spouse and how much to the children? Should there be a principle of equality? Is a court unfair in preferring inequality?

I think it likely that some judges would have found in favour of the children in the O’Neill case but that doesn’t mean Justice Downs got it wrong. The fact that some judges would favour the children and others wouldn’t reflects the divergent views in New Zealand on this subject and the unpredictability of the outcome of claims under the Family Protection Act reflects the prevailing lack of consensus on the way assets should devolve on death.

Anthony Grant is an Auckland barrister specialising in trusts and estates

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Continued from pages 1, 2

James Ting-Edwards

Marcin Betkier

Tania Goatley

particularly significant where organisations do not actually know what the relevant content is or might contain.”

We are concerned that the New Zealand government has signed the statement without wider public consultation or discussion

The Australians are struggling with the law of unintended consequences. So too, the foundation noted, could New Zealand if it were to enact similar legislation.

Implementation of the type called for in the international statement also raises privacy risks from an organisational perspective, says Goatley.

“These include mapping data flows and, in particular, understanding where data is collected, held, used and disclosed, understanding the legal obligations and access powers that may apply to organisations as a result, and ensuring customer data is properly protected and not illegally disclosed in that context.”

Not a first If the statement becomes reality it wouldn’t be the first time a government has demanded access to end-to-end encryption. As discussed, Australia has passed legislation enabling lawmakers and enforcement to compel communications providers to provide certain assistance in accessing content.

The Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 has been criticised for being inadequately debated, poorly drafted and draconian.

An amendment was passed in 2019 and the law was subsequently reviewed by an Independent National Security Legislation Monitor which has recommended extensive amendments. The Australian Parliamentary Joint Committee on Intelligence and Security (PJCIS) is undertaking a review.

In the United States, the FBI has unsuccessfully attempted to require Apple to provide tools for bypassing the security restrictions on iPhones belonging to suspects.

The question is whether any of this legislation is necessary.

Undermining encryption is not the only way to access data, says Betkier. Law enforcement agencies can access communications when necessary even without this back door. He cites the example of EncroChat, a secure telephone 4

network in Europe favoured by criminal groups.

French police hacked into the network, broke the encryption and cracked open millions of messages.

It was big news for law enforcement.

Playing on emotions The Privacy Foundation expressed its concerns about the emotional language used in the Five Eyes statement and the fact that it offered little in terms of a solution.

“Such discourse creates a false illusion that everyone who stands for privacy also supports individuals who use the internet for these sorts of illegal activities,” it says. “This is, of course, not the case and we agree that law enforcement agencies need to have tools and processes to protect individuals and vulnerable groups in society.”

Betkier says we need to discuss this more rationally as a nation. “What can law enforcement agencies do? Right now, it looks like they just want everything. If there is no easy way, they just keep reporting that emotional communication.”

Translation into law?

As Goatley points out, the government has not brought in specific anti-encryption legislation and has not indicated it intends to do so. “Rather, to date its focus appears to be engaging in constructive dialogue, which is likely to involve consultation with industry experts.”

This approach, she says, is generally preferable and would help avoid shortfalls in the equivalent Australian law.

The foundation noted: “It will reduce confidence in e-commerce, independent journalism, whistleblowing and many other sectors or scenarios where the confidentiality and integrity of information is essential. For example, it may be a direct threat to vulnerable communities (like LGBTQ) and to groups that oppose authoritarian regimes across the globe.”

Another unintended consequence might be whether New Zealand could continue to be considered an ‘adequate’ country under Europe’s General Data Protection Regulation (GDPR) privacy rules, says Goatley. This is soon to be reviewed by the European Commission.

Any weight the EU might place on a back door to end-to-end encryption remains uncertain, Goatley says.

How might it work?

The foundation says the statement does not present practical proposals for achieving its aims of maintaining public safety while protecting privacy and cybersecurity through encryption.

“Law enforcement agencies may have a number of alternative means of accessing digital content that does not require them to break encryption through exploiting vulnerabilities in an individual’s device or tracking their online activities to glean further information.”

Ting-Edwards says it would help if the Five Eyes governments could publish technical designs so relevant parties could scrutinise and discuss them.

“We can trust software systems only when the design is presented and people can independently look at them and test them and see what breaks to assure them the systems do what they say on the box and they don’t have any surprising impacts.”

LawNews Issue 42 | 27 Nov 2020

TECHNOLOGY

Why scrapping encryption is the wrong way to go

By Richard Anstice

systematically copied and stored billions of pieces of information about all internet users every day, and then subjected the information to a dizzying array of analysis tools to snoop on every aspect of the lives of millions of law-abiding citizens, including New Zealanders.

Imagine there was legislation saying you could have a lock on the door of your law firm only if you could prove the lock could be picked by government lock-picks.

In fact, the Five-Eyes agencies represented in this 2020 announcement are exactly the wrongdoers against whom New Zealand citizens require encryption as a protection.

Not only would it effectively remove legal privilege, but it would also leave your clients’ information vulnerable to anyone who could copy the government’s lockpicks. Such a law would be ludicrous. And yet, for encryption – or digital locks – the New Zealand government recently announced a policy to implement analogous rules.

On the internet today, encryption is ubiquitous. You rely on it to protect your information every time you log onto a reputable website (that’s what the “S” in “https://” refers to). And every time you make an online payment or send a message through a tool like Facebook, Zoom or WhatsApp. If the computers in your law firm are connected to the internet (even if your servers are located in your offices) then you rely on encryption to keep client information confidential, and to preserve privilege.

End-to-end encryption is an increasingly common type of encryption where the encryption and decryption happen only at the first and last computer from which data is sent and received.

Nobody in the middle, including the company managing the service, has the wherewithal to decrypt the message. If an intelligence agency wants to read the message, it must use a hostile decryption method.

Online, end-to-end encryption is being used more and more, because it is the only way to ensure none of the points in the middle of the transmission can be exploited to decrypt messages.

But, in the run-up to the 2020 election, thenJustice Minister Andrew Little announced a government policy to introduce laws preventing use of end-to-end encryption on the internet.

Read more.

It is not a New Zealand initiative; rather, it arises from our involvement with the Five Eyes network of intelligence agencies. The announcement calls on technology firms to avoid using end-to-end encryption unless it will “enable law enforcement access to content in a readable and usable format where an authorisation is lawfully issued”.

What that means is that encryption – the digital lock – should be created and used only in a way that has digital lock-picks that the government can use to decrypt it – ie, no end-to-end encryption.

This proposal is fundamentally flawed for three reasons: First, any lock (physical or digital) that is designed

Richard Anstice

If the computers in your law firm are connected to the internet, even if your servers are located in your offices, then you rely on encryption to keep client information confidential, and to preserve privilege to be vulnerable is vulnerable to any attacker, not just a government agent that may or may not be following the rules. If the lock can be picked, then criminals, third-world dictators and lazy law-enforcement agencies will find and use the lockpick illegally. If it can be hacked, it will be hacked.

Second, the Five Eyes agencies have claimed this policy would make it easier to stop terrorists and peddlers of child-abuse images. This is wrong because the rules will not prevent wrongdoers from using simple, freely-available encryption tools that do not have government-mandated vulnerabilities. Using basic skills and non-technical knowledge, criminals will be able to protect their communication.

Most importantly, the announcement claims that intrusion on encrypted information by secret intelligence agencies can be done in accordance with the rule of law.

This has been proven to be incorrect. The 2013 release of classified documents by Edward Snowden showed the Five Eyes agencies

No member-nation of the Five Eyes network has properly called its officials to account for this systematic program of supra-legal surveillance.

Since 2013, one of the reasons the internet has moved to an encrypted model is to give citizens protection against this illegal, uncontrolled surveillance by the Five Eyes network.

If civil society is valuable – if citizens should have a right to be free from government surveillance without just cause, and without due process – then encryption is fundamental to protect civil society.

For the reasons outlined above, a government attack on even part of these basic encryption technologies (end-to-end encryption architecture) is unacceptable. To be clear, there is a cost: strong encryption will definitely enable communication that involves criminal activity but that is a risk society has accepted for all communications technologies. And the proposed attacks on end-toend encryption will not affect that basic risk.

As a member of the legal profession, it would be appreciated if Andrew Little would explain to lawyers why he thinks this proposal is justifiable in a free and democratic society. From his past career as a legal representative for members of the labour movement, he must be aware of the problems of surveillance on law-abiding citizens carried out beyond the law.

It would be reasonable and helpful for him to explain to New Zealand lawyers how he reconciled those two conflicting perspectives before he signed this proposal.

And in 2021, if the New Zealand government proposes legislation to restrict or remove the right to choose encryption technologies, then legal professionals will need to be ready to respond.

There is a strong need to hold the government to account to ensure that regardless of what spooks in the UK or the USA think they need, the New Zealand government takes action only for the benefit of its citizens and their fundamental rights.

Civil society must protect itself from legislative attacks on end-to-end encryption.

Richard Anstice is a consultant for Gallagher and Co Consultants. He also works with the Baywide Community Law Service and is a member of the ADLS Technology & Law committee 5

LAW FIRMS

Global survey gives the thumbs up to remote working

By Jenni McManus

A global survey by legal researcher Acritas has revealed 77% of senior lawyers want to continue working remotely and flexibly for at least one day a week once the Covid-19 pandemic is over.

And, of these, 22% - or nearly one in five - say they would consider quitting if their employers fail to make this happen, says Lisa Hart-Shepherd, vicepresident of strategy at Acritas, which is part of Thomson Reuters.

More than 800 ‘stand-out’ lawyers, mainly partners, were surveyed in June and July and asked how they had managed working from home since the pandemic took hold.

The result: a one-size-fits-all approach will no longer work and law firms need to find a way to balance what most lawyers are asking for with the business needs of the firm. Anything else is likely to trigger an unacceptable level of ‘flight risk’, Hart-Shepherd says.

“One in five is huge. People have had this moment to reflect and if they can’t get the changes they want, they’re going to move on.”

The results align with what New Zealand lawyers are telling legal recruiters. A July survey revealed 80% wanted to continue working from home on a regular basis for two or three days a week. Read more.

But there is significant pushback from their employers, meaning 2021 is shaping up as a battleground over remote and flexible working. LawNews has been told of candidates who’ve refused job offers because flexibility wasn’t part of the package.

However, at the other end of the spectrum, a significant number – 23% in the Acritas survey – have not enjoyed working remotely during lockdown and would prefer to be in the office fulltime. But, says Hart-Shepherd, they need to realise the workplace of the future will be nothing like that of the past as many colleagues will continue to work remotely.

“Every single meeting moving forward is likely to have some people online and some working in the office,” she says. “This will be the default way things work. It will mean an overhaul of working practices and technology so it can be a successful and permanent way forward. Firms have to find a way of accommodating this physical and virtual approach to collaboration.”

Everybody is different, she says, and firms should embrace this diversity of needs but this will require more careful and thorough planning and better project management to make it work.

“It isn’t as easy as saying ‘great, we’re going to be flexible’. There’ve got to be a lot more tools and systems in place to support that flexibility, particularly when you look at business development, talent development and collaboration.

These came through clearly as areas lawyers are struggling with under these new working conditions.”

Firms have to find a way of accommodating this physical and virtual approach to collaboration Part of this is ensuring those operating remotely are putting some clear structure around their work. Jen Dezso, director of client services at Acritas, cites one survey respondent who put aside two hours every Wednesday to contact 30 of his top clients. “He’s extremely structured about this outreach because he wants to make sure it’s a priority in his day,” she says.

Successful remote workers are also structured about shutting down and taking regular breaks for exercise during the day and turning off their phones at dinner time. “They’re recharging so they don’t burn out while working under these conditions.”

Another bonus is the potential cost-saving on real estate. According to Dezso, those who reduce office space in favour of ‘hotelling’ and ‘collaboration spaces’ could cut costs by up to 38%. Above all, they must keep their talent happy and ensure any new strategy doesn’t impact on productivity and client services.

The number of lawyers wanting to continue working remotely represents a huge mind-set shift, Hart-Shepherd says. Previously, it was viewed as something done by young people and those who were not serious about their careers.

No longer. Acritas’ research reveals those most in favour of working from home are lawyers over the age of 60 whereas those with children under the age of 18 living at home wanted to spend more time in the office.

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LawNews Issue 42 | 27 Nov 2020

LITIGATION

Landmark decision allows opt-out class actions

By David Friar & Daniel Scholes

​​​The Supreme Court’s decision in Southern Response Earthquake Services Ltd v Ross [2020] NZSC 126 will likely have a significant effect on New Zealand’s class action regime for years to come.

It ruled that opt-out class actions are permitted in New Zealand, and that in many cases this will be the starting point for an action. This will change the nature and impact of class actions, with consequences for consumers, investors, corporates, litigation funders and insurers.

Facts and issues Brendan and Colleen Ross brought proceedings against Southern Response, alleging it had failed to provide them with information about the cost to rebuild their house before they settled their insurance claim. The Rosses sought orders allowing them to bring the proceedings not only for themselves but also on behalf of 3,000 other insureds who had settled with Southern Response.

The Rosses also asked permission to bring the proceedings on an opt-out rather than an opt-in basis. An opt-out proceeding would allow the Rosses to sue on behalf of all other insureds without obtaining their consent, unless they specifically said they did not wish to participate.

Opt-out proceedings are common in other jurisdictions, including the United States and increasingly Australia, but before now all class actions in New Zealand have been opt-in.

There is no detailed class action regime in New Zealand and proceedings must be brought under a relatively brief provision in the High Court Rules, allowing a person to sue on behalf of others with the same interest with their consent or by an order of the court.

There have been various efforts to introduce a more detailed regime, but these have all stalled.

The Law Commission is in the early stages of investigating whether to make legislative reform but has not yet issued any consultation document or recommendations for reform.

The High Court in the Ross proceeding ruled that opt-out orders were not available in New Zealand and therefore declined to make the orders the Rosses sought. That decision was consistent with a reasonably long line of other decisions that ruled the same way.

The Court of Appeal, however, overturned the High Court and ruled that the courts had jurisdiction to make opt-out orders, and that an opt-out order was appropriate in this case. The Court of Appeal considered this would facilitate improved access to justice because it would result in better participation in class actions.

David Friar

Opt-out proceedings are common in other jurisdictions, including the United States and increasingly Australia, but before now all class actions in New Zealand have been opt-in The counterargument, mounted by Southern Response, was that without a detailed class action regime (as exists in other jurisdictions), class actions would involve excessive and costly proceedings to determine the procedural details and there would be insufficient protections for members of the class who were not aware of the proceeding.

The Court of Appeal’s decision was itself a landmark case, but it remained to be seen whether the Supreme Court would agree that opt-out class actions should be permitted in the absence of legislative reform.

Supreme Court deci​sion We now have the Supreme Court’s view. It unanimously endorsed the Court of Appeal’s approach and in some respects went further. There are several key points that consumers, investors, corporates, litigation funders and insurers should be aware of following the Supreme Court’s decision:

The Supreme Court ruled that the courts have jurisdiction to make opt-out orders in New Zealand, even in the absence of a specific statutory class action regime.

Daniel Scholes

The objectives of the jurisdiction to bring class actions are improving access to justice, facilitating efficient use of judicial resources and strengthening incentives for complying with the law. The court ruled that opt-out class actions are consistent with these objectives.

The default position will be the procedure sought by the applicant. The court will depart from this only if there are good reasons to do so, considering what will best meet the permissible objectives of the representative action in the particular case.

The plaintiff conducting the proceeding has the power to settle on behalf of the other class members.

The courts have wide powers to control how class actions are run. This includes the power to approve settlements, which should generally be a condition of making an opt-out order.

The Supreme Court accepted that absent a detailed regulatory class action regime, class actions will involve more procedural uncertainty and this will require many issues to be determined by the courts. However, the absence of a more detailed regime that did not preclude the courts from making opt-out orders under the existing rules.

Interestingly, a separate New Zealand litigation funder, LPF Group, made submissions against the Rosses and their litigation funder, in support of Southern Response’s position. LPF argued that opt-out class actions should not be permitted in the absence of a detailed legislative regime.

However, the Supreme Court rejected this submission.

But there is unlikely to be any reform of the current rules any time soon, given the ongoing Law Commission review. Even then it is by no means clear that Parliament will have an appetite to overrule the Supreme Court’s decision.

Continued on page 10 7

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• Build up your cross-examination confidence by engaging in practical learn-by-doing sessions followed by individual feedback.

• Meet colleagues and engage in a challenging learning experience with them.

Facilitators: Marie Dyhrberg QC; Paul Dacre QC; Paul Borich QC; Rachael Reed QC; Julie-Anne Kincade QC; Ish Jayanandan; Panama Le’Au’Anae; Aieyah Shendi

Unpacking the Amendments to the Equal Pay Act — FINAL NOTICE With the amendments to the Equal Pay Act having recently come into force, familiarity with the changes, and an understanding of what the new framework means for employees, businesses and trade unions may be desirable for all lawyers and advocates advising clients in the area. Presented from both an employer and union perspective, this webinar will provide an overview of the changes to the Act and offer practical advice on the new pay equity process.

Learning outcomes: • Receive an overview of the amendments to the Equal Pay Act. • Receive practical guidance on the new pay equity process for claims raised by employees and unions. In particular: o The process for raising a pay equity claim; o The pay equity bargaining process; o The dispute resolution process; o Settling pay equity claims.

• Become aware of and learn more about the comparators that will be used.

• Learn about pay equity outcomes.

• Learn what the new framework means for businesses, unions, and employees.

Jumping off the page The use of extrinsic material in the interpretation of contracts and statutes In person | Live Stream The late Justice Antonin Scalia (and RBG bestie) once quipped that “the main business of a lawyer is to take the romance, the mystery, the irony and the ambiguity out of everything [s]he touches”. A large part of that exacting business is the task of interpretation. It is the bedrock of our legal work. Many disputes turn on the meaning of a written contract, or of a statute, or both. Lawyers constantly fret: “what on earth do these words mean?” The answer, often knife-edge, can have enormous consequences. The New Zealand courts have been tightening up their approach to interpretation, re-emphasising the primacy of the text. Judges have admonished parties for excessive reliance on external material that is inadmissible, only remotely relevant, or “singularly unhelpful”. This seminar will explore what may properly be put before the court.

 Sat, 28 Nov 9am – 1.15pm

 Moderators His Honour Judge David Sharp His Honour Judge Winter His Honour Judge Earwaker His Honour Judge Sainsbury

 Webinar CPD 1 hr

 Wed, 2 Dec 12pm – 1pm

 Presenters Liz Coats, Partner, Bell Gully Avalon Kent, Legal Officer, New Zealand Council of Trade Unions

 Seminar

Livestream

CPD 1.5 hrs

 Mon, 15 Feb 4pm – 5.30pm

 Presenter Gillian Coumbe QC, Barristers at Chancery

Learning outcomes: •

•

•

•

Update your understanding of the principles governing the interpretation of written contracts and of statutes, including the most recent case law.

In relation to contracts, get practical guidance about what evidence is admissible (or not) under the “factual matrix”, commercial context, prior negotiations, and subsequent conduct.

In respect of statutes, hear the latest word on permissible and impermissible extrinsic aids relating to legislative history.

Overall, learn how far beyond the written page you should look in giving advice, or in bringing or defending a proceeding involving an issue of interpretation.

Mortgagee Sales: Avoid the Pitfalls With businesses closing or downsizing, incomes being affected and jobs being lost, it likely won’t be long before the economic turmoil wrought by Covid-19 plays out in an increase in mortgagee sales. These present a special status and rights. Are you prepared for advising and acting? Providing property and litigation perspectives, this webinar will assist you to advise those contemplating, or confronted with, a mortgagee sale.

Learning outcomes: In respect of mortgagee sales: • Deepen your knowledge of when the process might be commenced, and what is involved.

• Explore the options that exist, and trends in play.

• Get to grips with the twists and turns the process can take.

• Delve into where challenges to a proposed sale might arise.

• Gain insights into common traps and complications and how to avoid or deal with them.

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 Webinar CPD 1.5 hrs

 Tue, 16 Feb 12pm – 1.30pm

 Presenters Nicola Robertson, Director, Sanderson Weir Limited Tony Johnson, Partner, Martelli McKegg

LawNews Issue 42 | 27 Nov 2020

CPD in Brief Future Planning: Alternative Mechanisms for Selling the Family/Small Business

 Webinar

Globally, 80% of businesses are family owned, however only 25 to 30% of these businesses will successfully transfer to the second generation, leaving two-thirds of business owners to find an alternative mechanism to sell their family-owned businesses. This webinar will focus on preparation for sale, compare sale processes, discuss the value of the business, the role of management or joint venture partners and working with advisors.

Presenter: Tim Howe, Partner, Ocean Partners

CPD 1 hr

Bully or Client – Where is the Line?

 Seminar

In Person | Live Stream Lawyers are ethically obliged to accept instructions in their practice area from any client, unless they have “good cause” to refuse them. But at what point does the client’s behaviour justify terminating or rejecting an engagement? There has been considerable recent focus on bullying in the workplace, bullying between professionals, and bullying from the bench. We have heard less about the bullying client, and it’s a fraught topic!

Presenters: Janine Stewart, Partner – Construction MinterEllisonRuddWatts; Katie Karpik, Solicitor, MinterEllisonRuddWatts Chair: Dennis Jenkin, Barrister

Youth Advocates Conference In Person | Live Stream The Youth Justice system in New Zealand has always been pioneering, and following amendments to the Oranga Tamariki Act in July 2019 practitioners in the Youth Justice space have even more tools at their disposal when working with rangatahi.

It is a brave, exciting, new world and a time to make the most of what the Act, the Convention and the Treaty offer. The Youth Court is a specialist jurisdiction, requiring Youth Advocates to have special characteristics in order to be appointed, and special skills to do their work in addition to their legal skills. This conference will give an overview of the Youth Justice System and focus on the function and procedures in the courtroom.

 Wed, 17 Feb 12pm – 1pm

Livestream

CPD 1.5 hrs

 Thu, 18 Feb 4pm – 5.30pm

 Conference Livestream CPD 4 hrs

 Fri, 26 Feb 10am – 2.30pm

The conference will focus on: • The Youth Court • Family group conferences • Arrest, Police procedures and remands • Disposition – sentencing Presenters: Her Honour Judge Otene; Dana George; Maggie Winterstein; Maria Pecotic; Renee Karena; Judith Malcolm; Amosa Samuelu; Gary Earley; Presenter/Chair: His Honour Judge FitzGerald

Criminal Law Pot Pourri™ In person | Live Stream Join us for our annual Pot Pourri of the topical issues in Criminal Law. A must-attend event covering the following topics: • Guiding principles for s 27 reports.

• The Sexual Violence Bill.

• Name suppression and the impact of social media.

• Parole – lack of available programmes is resulting in parole being denied.

Presenters: Marie Dyhrberg QC, President, ADLS; Emma Priest, Barrister; Ish Jayanandan, Barrister; Lucy Smith, Barrister Chairs: His Honour Judge Bergseng; Her Honour Judge Aitken

 Seminar

Livestream

CPD 2 hrs

 Tue, 3 Mar 4pm – 6.15pm

CPD Pricing Delivery Method

Member

Non-Member



Webinar (1 hour)

$80 + GST

$115 + GST

Webinar (1.25 hour)

$90 + GST

$130 + GST



Seminar (2 hour in person)

$130 + GST

$185 + GST

Seminar (2 hour live stream)

$130 + GST

$185 + GST

On Demand (1 hour recording)

$90 + GST

$130 + GST

On Demand (2 hour recording)

$145 + GST

$205 + GST

 

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

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

Terms and conditions apply.

Jumping off the Page The use of extrinsic material in the interpretation of contracts and statutes Monday 15 February | Seminar & Live Stream | 1.5 CPD hours Visit adls.org.nz for more information.

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Continued from page 7 The upshot It seems likely that opt-out class actions will become more common in New Zealand. If the Australian and American experience of opt-out class actions is anything to go by, this will likely mean corporates, and particularly companies listed on the NZX or ASX, may face a greater risk of such a claim. The increase of class action claims in Australia has affected directors’ and officers’ insurance premiums on both sides of the Tasman. Confirmation of the availability of optout proceedings in New Zealand may well exacerbate the impact that we have been seeing on premiums.

The Supreme Court expressly declined to consider whether there was jurisdiction to make what are called “common fund orders”. That is an order that members of the class contribute to the litigation costs of the action, normally through a deduction from the damages owing to each class member if the action succeeds. That issue is before the High Court in the Ross proceeding.

A specialist accounting practice is looking to sub-lease furnished offices in the Auckland CBD We are seeking furnished office space in the Auckland CBD of approximately 80m2 to 100m2 with the provision of reception and meeting room facilities (no car parks required). We are flexible in regard to terms of a sub-lease.

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

David Friar is a partner and Daniel Scholes is a solicitor at Bell Gully Read more.

SOUTH AUCKLAND LAW PRACTICE FOR SALE

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

A highly profitable boutique law practice with a large and longstanding client base offers the potential for both lifestyle and success for a general practitioner. Situated in the South Auckland area, this is a unique opportunity to walk into a solid and ever-expanding profitable base of private and small to medium business clients.

The practice has a substantial conveyancing, commercial, trusts and estates clientele with room to expand into civil litigation and family law. The possibilities are endless for an ambitious general practitioner.

Very flexible arrangements are available for transition to the new ownership.

Expressions of interest c/- Matthew Pasley, Keegan Alexander, Lawyers Auckland, mpasley@keegan.co.nz

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.

Alexandra Claire FOSTER, Late of 1/19 Houghton Street, Meadowbank, Auckland, single, veterinarian, aged 36 (died 16’10’20) Paul Scott Reeves GLASSIE, Late of 7 Line Road, Glen Innes, Auckland pastor, aged 65 (died 17’09’20) Gail Karen HALL, Late of Unit 9, Sovereign Pier, 73 South Highway, Whitianga, married, school teacher, aged 68 (died 05’09’20) Aristides Rosales MAYO, Late of 17A St Catherine Crescent, Auckland, aged 57 (died 27’06’20)

Senior property/relationship property lawyer

Nicole Anne MEARNS, Late of 19 Carina Way, Whitianga, married, sales manager, aged 56 (died 14’10’20)

• Property Law, relationship property, trusts, wills and estates team leader.

Pauro PIRANGI, Late of 10 Romney Place, Manurewa, Auckland, print processor, aged 54 (died 28’09’20)

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

Nabil Sahib Abdullah SHENDI, Late of 131 Bridge Street, Nelson, separated, company director, aged 61 (died 31’10’20)

• 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

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LawNews Issue 42 | 27 Nov 2020

ROOM AVAILABLE Vulcan Building Chambers has a spacious room in the historic Vulcan Buildings in Vulcan Lane available to a barrister wishing to share reasonably priced facilities with six other collegial barristers.

Facilities include: Website, boardroom, library, kitchen, shower, ultra fast broadband, networked printing and photocopying and VOIP phone system. The chambers have a dedicated and capable office manager.

Please email: eden@vulcanbuilding.co.nz or phone 09 300 1253

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.

GENERAL PRACTITIONER Glaister Ennor is a well-regarded 14-partner law firm with a combination of strengths in property and personal property law, litigation and commercial. What really distinguishes the firm are the high levels of expertise, approachability and client-centred philosophy. The work style is inclusive with an excellent focus on open communication, both within the team and within the partnership. The culture is based on integrity, transparency and trust, observing the highest professional and ethical standards. We have a reputation for being a great place to work.

We have an opportunity for a high calibre individual to assume a leading role in our general practice/private client team and, in time, partnership. The timing of that will be dependent on you.

You will have carved out your legal career over the last 10 years and more in general practice including conveyancing, commercial, Wills, trusts and estates. You will have built up many skills in legal practice, however, it is the skill of developing client relationships that has got you to where you are today. Your clients consider you a trusted advisor.

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

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

CAREER OPPORTUNITY TAKAPUNA BEACH AUCKLAND 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.

To discuss this excellent opportunity further and find out more apply now to anne.harris@glaister.co.nz

Auckland Law Practice for Sale This is an opportunity of a Lifetime for a person with the right experience.

A general practice established for over 50 years is for sale in Auckland.

The practice has 6 plus lawyers and support staff. It has a broad client base. It is available for sale on very reasonable terms due to the health issues of one of our principals.

The practice focuses on property work, trusts, estates, wills, and family law. It would suit a lawyer (or perhaps two) with experience as general practitioners. A successful purchaser would need to have 10 years’ plus experience and a desire to manage and run their own business.

It may well suit a larger firm as a suburban branch office.

This practice is one of the best suburban practices in Auckland. The principal is willing to remain with the new owners for a period (to be agreed) to assist with the transitioning of the client base.

All enquiries in the first instance to advertiser@adls.org.nz marked “Auckland Law Practice for Sale”

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CRIMINAL LAW

A research project that aims to capture the experiences of Pacific people in New Zealand’s Criminal Justice System (CJS) has received substantial funding of more than $250,000 from the Michael & Suzanne Borrin Foundation.

seeks to explore the same issues, but from a Pasifika framework.

Pacific Peoples and the Criminal Justice System in Aotearoa, New Zealand: Past, Present and Future, is a two-stage research project led by legal scholar Litia Tuiburelevu, a Professional Teaching Fellow at the University of Auckland’s Faculty of Law.

The findings are intended for Aotearoa’s diasporic Pacific communities, especially those within the CJS to ensure their voices are at the forefront of any proposed reforms.

Using a Pasifika cultural lens, Tuiburelevu’s study will specifically look at the issue of Pacific overrepresentation in the CJS and what individual, structural and cultural determinants contribute to this phenomenon.

“The lived experience of individuals within the CJS and the literature tell us that the system is institutionally racist and fundamentally broken,” says Tuiburelevu.

“In the CJS, Pasifika peoples are overrepresented as offenders and victims of crime. As of 2020,

It will be undertaken in accordance with Pacific research methodologies and values, recognising the importance of communal relationships, reciprocity, holism and building research capacity for Pacific legal scholarship.

Pasifika peoples comprise just under 8% of the total population, but a little over 12% of the prison population,” she says.

“I want to acknowledge the work of Māori legal scholar, Moana Jackson, and his ground-breaking report, He Whaipaanga Hou, which is the blueprint for this kind of research.

“The project, which will take place over 18 months,

Tuiburelevu teaches the elective paper Pasifika Peoples and the Law: Critical Perspectives, with a focus on critical race theory and minority rights.

She also oversees the Pacific Academic Support Program. Prior to working at the university, she was a solicitor at Meredith Connell.

The Michael and Suzanne Borrin Foundation believes law is essential to a flourishing society – one that is just, inclusive, tolerant and free.

Founded by the late Judge Ian Borrin, the foundation supports legal research, education and scholarship that contributes to their vision for Aotearoa New Zealand.

Unpacking the Amendments to the Equal Pay Act Wednesday 2 December | 1 CPD hour Presented from both an employer and union perspective.

This webinar will provide an overview of the changes to the Act and offer practical advice on the new pay equity process.

T 09 303 5278

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E cpd@adls.org.nz

W adls.org.nz

Photo by Boonchai Wedmakawand/Getty Images

Pacific criminal justice research gets funding boost