LawNews - Issue 42 by The Law Association

NEWS Nov 26, 2021 Issue 42

Inside ■ TRUST LAW

Eyebrows raised at key High Court decision P05

■ EMPLOYMENT

No jab, no job: but where’s the detail? P06

What should constitute

adls.org.nz

A NUPTIAL SETTLEMENT?

Contents 03

Preston v Preston: did the Supreme Court get it right?

SETTLEMENTS PROPERTY MARRIAGE

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

04 MANDATE BALLOT SALE

ADLS gets the green light to sell Chancery Chambers

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

05 TRUST PROPERTY FIDUCIARY

Another take on parental fiduciary duty

12-13

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

FEATURED CPD

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.

14 CPD IN BRIEF

Photo: EThamPhoto / Getty Images

15 EVENTS

Climate change: why COP26 ended in disappointment

©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. Cover: Waldemarus / istock / Getty Images Plus

Nov 26 2021 Issue 42

TRUST/PROPERTY/FAMILY LAW

The Preston case: why section 182 must go

The Supreme Court has said the second wife can take the pre-relationship assets that have been settled on a trust

Anthony Grant

is entitled to own separate property whether it was earned prior to the marriage or received by gift or bequest during the marriage. That is a fundamental principle of our law of relationship property. The Court of Appeal upheld that principle in the Preston case when it determined that assets a husband acquired prior to his relationship with his second wife and which he settled on a trust should not be taken by the second wife. The Supreme Court has said the second wife can take the pre-relationship assets that have been settled on a trust. Our law concerning spousal relationships also changed dramatically with the Property (Relationships) Act amendments in 2001. This gave cohabiting couples the same property rights as married couples. Section 182 contravenes this statutory entitlement by its exclusive focus on marriages. Three fundamental criticisms can be made of s 182: ■ It is a distortion of the 1867 legislation to say that a typical New Zealand 21st century discretionary trust is a ‘nuptial settlement’ as that term was understood to mean in 1867; ■ Section 182 breaches Parliament’s resolve that cohabitees should have the same property rights as married couples; and ■ Contrary to the classification of separate property rights in the Property (Relationships) Act 1976, s 182 as interpreted by the Supreme Court gives a party to a marriage or civil union the ability to take the separate property assets the other party acquired before he or she ever met his/her spouse and settled them on a trust. The Law Commission is to review the PRA and it will hopefully recommend the abolition of s 182 and its replacement by a more principled regime. ■

was ‘suspended’ during the marriage. A person who has no legal existence cannot own property. Section 182 of the Family Proceedings To illustrate how archaic the law Act allows a court to make any changes was at the time, a married woman who it wants to a ‘nuptial settlement’. had been deserted was in a different The term was intended to refer to position. In 1860, Parliament allowed a marriage settlements of the type made deserted wife to keep what she earned in the 1860s. Settlements were generally after her husband had deserted her but made on, or shortly before, a marriage Anthony Grant he was entitled to take any property she and the beneficiaries were usually the might have brought into the marriage. wife or the husband and the children Divorce was unobtainable prior to 1867. In that year, who would be born to them. Settlements for the an Act made divorce attainable – in theory. But the Act benefit of a wife were needed because wives were not was grossly unfair. A husband could divorce his wife allowed to own property. on grounds of adultery but a wife could not divorce Since then, the term ‘nuptial settlement’ has been her husband for adultery unless she could additionally comprehensively distorted. It now applies to trusts prove one of a number of events including incest, of which one or other of the spouses was made a bigamy, rape (of someone else), sodomy, bestiality or discretionary beneficiary at any stage during the cruelty (ie, brutal violence). marriage or in contemplation of a specific marriage. In 1867 it was not lawful for a man and woman Unlike the parties to a nuptial settlement made in to cohabit. For that reason, s 182 applies only to the 1860s, a spouse who is a discretionary beneficiary marriages and not to people who cohabit. Times of a contemporary New Zealand family trust has no have changed dramatically since then: cohabitation is certainty that he or she will ever receive a distribution common, along with polyamory, serial monogamy and from the trust. serial cohabitation. But only marriages get the benefit In the Court of Appeal’s recent decision in Preston of s 182. it was held that a wife should not be able to use s 182 The 19th century laws concerning marriage to obtain assets from a trust that her husband had were riddled with hypocrisy. Although the law was established when he had not met her and with assets substantially based on the theory that marriages created before he met her. The Supreme Court has reversed that decision: see would last forever, the extent to which the sanctity of marriage was ignored by husbands can be seen from Preston v Preston [2021] NZSC 154. the fact that in London alone in 1857 there were said Bygone days to be 3,325 brothels and 9,409 prostitutes. It is extraordinary that s 182 is still part of our law Dramatic change today. It derives from a New Zealand Act that was passed in 1867 which, in turn, echoed an English Our law concerning matrimonial property changed provision enacted a few years earlier. dramatically with the enactment of the Matrimonial Property Act in 1976. In 1867, a married woman could not own property. This was because a husband and wife were deemed to It declared there were two categories of property: be one person and the legal existence of the woman matrimonial property and separate property. A spouse

Anthony Grant is an Auckland barrister specialising in trusts and estates law ■ 03

ADLS

Expressions of Interest Chairperson – Human Rights Review Tribunal Expressions of Interest are sought from suitably experienced candidates for appointment as Chairperson of the Human Rights Review Tribunal. The Tribunal hears and determines proceedings lodged pursuant to the Human Rights Act 1993, the Privacy Act 1993 and the Health and Disability Commissioner Act 1994 after complaints have first been dealt with by the Human Rights Commission, the Privacy Commissioner and the Health and Disability Commissioner pursuant to their respective Acts. The principal matters considered by the Tribunal concern discrimination, sexual and racial harassment, misuse of personal information and breaches of professional health standards. This is a full-time role and the Chairperson must be a barrister and solicitor of the High Court of not less than 5 years’ practice with career experience at a senior level. Appointments to this role are made by the GovernorGeneral on the recommendation of the Minister of Justice for a term not exceeding 5 years and may be reappointed. Expressions of interest must be received by 5 pm Friday 17 December.

Deputy Judicial Conduct Commissioner Expressions of Interest are sought from suitably experienced candidates for appointment as Deputy Judicial Conduct Commissioner pursuant to s.8A of the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004. The role of the Deputy Commissioner is to receive and examine complaints about the conduct of Judges for the purpose of enhancing public confidence in, and to protect the impartiality and integrity of, the judicial system. Appointments to this position are made by the GovernorGeneral on the recommendation of the House of Representatives and the term of appointment is not less than two years and not more than five years (reappointments may be made). An Expression of Interest form, Statutory Declaration and a position description can be found here. Expressions of interest must be received by 5 pm Friday 10 December.

Chancery Chambers to be sold The decision was not taken lightly and I believe the council presented a cogent argument that we must sell

The ADLS Council has received a strong mandate from members to put their flagship building, Chancery Chambers in downtown Auckland, up for sale. This follows a ballot in which members were asked to vote on a resolution to enable the council to take the necessary steps to sell the iconic building on terms it considers to be in the best interests of ADLS. The result was a resounding ‘yes’. Marie Dyhrberg QC ADLS President Marie Dyhrberg QC said the council had spent a lot of time with experts in the past year and had come to the ‘inevitable conclusion’ that there was no other option. “The decision was not taken lightly and I believe the council presented a cogent argument that we must sell,” Dyhrberg said. “We are no longer the right owners, but the right owner is out there and will relish bringing this iconic building back to its former glory.” Investigations have shown that Chancery Chambers requires substantial investment to refurbish the building and make it compliant with new earthquake codes. On current book value, the building represents about 75% of members’ funds. The process of seeking approval for the sale had been robust and transparent, Dyhrberg said. “We were able to provide evidence of the situation we faced should we retain the building. We didn’t try to hide anything and the information we provided allowed members to reflect and make a responsible, reasoned and informed decision on whether we should retain the building.” In the medium-to-long term, the building could no longer be held as a passive investment. Dyhrberg said she wanted to thank members who participated in the ballot process, irrespective of how they voted. “We are conscious that some members, particularly some in Auckland, have fond memories of happy collegial times spent in the building in the past. We acknowledge this and at the same time are grateful that people understand the necessity at this time to sell the building.” The next step is to put Chancery Chambers on the market in early 2022. Proceeds from the sale will be ring-fenced from other ADLS funds and be invested in a conservative account with Forsyth Barr. Dyhrberg says the council intends purchasing a new building for ADLS in due course in the Auckland CBD. ■

Nov 26 2021 Issue 42

TRUST LAW

Another take on parental fiduciary duty Few would disagree that Gwyn J’s judgment is a compassionate and just result for the plaintiffs. But the underlying premise for the decision may raise eyebrows Andrew Steele

generally of a non-fiduciary kind, there may be aspects of the relationship which do engage fiduciary obligations. The context and facts in A, B & C are harrowing. The judge found that when the plaintiffs were young and vulnerable, they suffered egregious verbal and physical abuse by their father. One of the plaintiffs suffered sexual abuse.

immediate one it solves? The effect of the judgment is to impose a constructive trust on The High Court in A, B & C v D and E Ltd [2021] the father’s assets, not just when NZHC 2997 has held that a father estranged from he endeavoured to alienate them his adult children for more than three decades owed but during the 30+ years of his them a duty not to transfer property to a trust to estrangement from the children. defeat the claim they might have against his estate. What were the father’s rights in The court ordered that the trustees who received respect to this property during that the property now held it on constructive trust for the Andrew Steele period? Is he obligated by the fiduciary father’s estate. Effectively, this unwound the father’s Raised eyebrows duties imposed on him to consult his property transfer and enabled the adult children to children when he deals with his property? Can he bring a claim under the Family Protection Act 1955. Few would disagree that Gwyn J’s judgment is a spend it? Can he give, fritter, or gamble it away without The rationale for the decision was that a fiduciary compassionate and just result for the plaintiffs. But breaching his duty? relationship existed between the parent and his adult the underlying premise for the decision may raise Third, the purpose of the plaintiffs’ action in A, B & children. Arising from this, he owed them a fiduciary eyebrows. C was, in essence, to claw back into the estate their duty to recognise them as members of his family and First, the judgment required that the court deem father’s property which had been cynically settled to provide for them from his wealth. there to be a relationship between the father and into a trust to thwart (or at least to make financially The Supreme Court children when there was no impotent) their rights against his estate pursuant to judgment in Chirnside v Fay relationship between them at Is the proper remedy the Family Protection Act 1955. The anthesis of the [2006] NZSC 68, arguably all. In fact, the court accepted equitable damages, wise and just testator. the leading case on fiduciary there was no contact or even though the When one puts aside the differing levels of moral relationships, separated communications between them turpitude, the father’s actions might be likened to these relationships into two damage caused to the for more than 30 years. categories: those which are Hitherto, case authorities that the debtor who disposes of his assets to avoid his children continues? creditors. ‘inherently fiduciary’ – for discuss and frame the nature Is it possible that the Property Law Act might have example, solicitor and client – of a fiduciary relationship do so aided the plaintiffs, given that the court is empowered and those which depended not on the premise that there is a under that Act’s provisions to unwind dispositions on the inherent nature of the relationship but upon an relationship between the parties. where a debtor makes that disposition with intent to examination of whether its particular aspects justified Second, it seems clear that the father’s abuse it being so classified. profoundly affected his children, both when it occurred prejudice a creditor? The Act allows creditors to seek relief where the disposition was made before or after This second category was said to require a careful and in the years that followed when he was no longer the debtor became indebted to the creditor. scrutiny of the context and the facts on a case-bypart of their lives. But, is the proper remedy equitable Such a route might have avoided some of the case basis. damages – even though the damage caused to the practical consequences that might arise from using In A, B & C, the court stated that in general, children continues? the principles of fiduciary relationship and fiduciary when children are young and in their care, a parent’s By attaching a fiduciary relationship to the relationship with them is inherently fiduciary but that existence of ongoing mental and emotional damage could not be so once the children became adults. caused to the children, has the court delivered a Continued on page 10 And while parent/adult-child relationships are precedent that creates more problems than the 05

EMPLOYMENT/HEALTH/WORKPLACE SAFETY

No jab, no job: some clarity but details still to come Marie Wisker, Vonda Engels & Geoff Carter The government this week moved to clarify employer’s rights around requiring workers to be vaccinated in readiness for when New Zealand moves into the new traffic light regime on 3 December. The legislation was introduced on Tuesday and passed under urgency on Wednesday but we will have to wait a few weeks for the full details of the risk assessment tool itself. The announcement should provide some clarity for smaller businesses operating in indoor environments where physical distancing cannot be maintained. But the risk assessment tool is not as enabling for employers as we had expected. Particular concerns are that employers with larger physical premises could struggle to use the new simplified framework and that other relevant factors, such as business disruption risks, have been omitted from the policy. We had also hoped the government might take the opportunity to restrict a personal grievance claim from challenging an employer’s substantive decision where the employer had used the new risk assessment tool. Overall, these updates will be disappointing for a number of businesses which, on top of the additional delay in releasing the full framework, may lead many employers to push on with their risk assessment based on the current WorkSafe guidance. As part of these latest changes, the government has also addressed some of the legislative process concerns raised by the courts in the recent (unsuccessful) judicial review challenges to the border, health and education vaccine mandates. This should further strengthen the legal framework for the government’s vaccine mandates in case of any future challenges.

The plan so far The range of measures announced this week include: ■ Expanding the mandatory vaccination requirement to include workers at businesses which require customers to show proof of vaccination certificates – eg, hospitality and close contact services such as hairdressing. They will join border workers, health and disability workers, education workers and corrections staff (but so far not police). These workers will need to have their 06

The announcement should provide some clarity for smaller businesses operating in indoor environments where physical distancing cannot be maintained but the risk assessment tool is not as enabling for employers as we had expected

first vaccination by 3 December and be fully vaccinated by 17 January. ■ Introducing a clear and simple legislative risk assessment process for employers not covered by a government mandate to determine which staff can be required to vaccinate or undergo testing for covid-19. The legislative framework for this new process was released on Tuesday, but the practical detail is not expected until mid-December. Our understanding from the Ministry of Business, Innovation and Employment (MBIE) announcement is that: ■ The risk assessment tool involves four factors, at least three of which must be determined to be high risk before an employer can rely on the tool to require vaccination for particular work. ■ The four factors will be: the physical work environment and whether indoor workers are working in less than 100sqm of space; the ability to social distance and maintain one metre distancing between workers; whether workers are in close proximity to others for more than 15 minutes; and whether they provide services to vulnerable people. ■ Employers will still have the option of using the current WorkSafe guidance instead. Any risk assessments already completed in accordance with existing health and safety guidelines will not be affected. There are mandatory statutory consultation requirements for those employers who do use the new risk assessment process. ■ Requiring a minimum of four weeks’ paid notice where an employer terminates an employee’s employment because the role requires vaccination and they are refusing to be vaccinated. That notice of termination will, however, be of no effect if the employee gets vaccinated during the course of the notice period. ■ Requiring employers to provide paid time off for workers to get vaccinated and keep records of workers’ vaccination status. ■ Providing clarity that an individual’s vaccination status can be used only for the purposes of ascertaining whether or not that individual is vaccinated where an employer, after conducting a risk assessment, is requiring vaccination and/or for the purposes of complying with any government mandates; and ■ An employee’s right to bring a personal grievance claim if they are given notice of termination due to a vaccination requirement is preserved. ■ Marie Wisker is a partner at Chapman Tripp. Vonda Engels is a senior associate and Geoff Carter a special counsel at the same firm ■

Nov 26 2021 Issue 42

Briefs Poor law-making Speaker Trevor Mallard has added his voice to those of Opposition MPs, lawyers, academics and the Human Rights Commissioner who have lambasted the government for passing key covid-19 legislation under urgency on Wednesday. Mallard said the government, and the wider House, had failed to better scrutinise the bill and called on the government to make public its policy decision, legal drafting instructions and early drafts of the bill. The government has so far refused, saying it might release the documents sometime next year. “Urgency of this type used to be common. It isn’t any more, for good reason. It resulted in bad law,” Mallard said. The Speaker’s comments follow two days of widespread criticism of the process of ramming through the Covid-19 Response (Vaccination) Legislation Bill and the Taxation (Covid-19 Support Payments and Working for Families Tax Credit Bill) without the usual select committee and public scrutiny. Human Rights Commissioner Paul Hunt condemned the process as ‘poor law-making’ while Victoria University law professor Dean Knight described it as a ‘constitutional disgrace’ that legislation seriously curbing the freedoms of the unvaccinated and the introduction of the so-called traffic light system could be passed without proper interrogation.

Transparent justice The Supreme Court says that from 1 February 2022 submissions (together with relevant outlines and chronologies) filed with the court will be published on the Courts of New Zealand website for all appeal hearings, with only limited exceptions. The initiative is intended to improve the transparency of the court’s processes and improve public understanding of its work. Chief Justice Dame Helen Winkelmann says the decisions follows consultation with the profession and other interested parties. “We very much appreciated the thoughtful responses given by members of the profession. Many expressed strong support for the proposal to make written submissions publicly available on the basis that it supports understanding of what is in issue in the proceeding, and through that improves transparency and helps maintain confidence in the administration of justice. I note that it is in line with the practices of other final appellate courts,” she said. The profession voiced a need for necessary safeguards to be in place, which the court was also very mindful of, the Chief Justice said. “Efforts to further strengthen open justice must be consistent with the need to protect suppressed, confidential or sensitive information. We must balance the need for transparency with the interests of parties – including victims and their whānau – and other countervailing interests.” ■

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

CLIMATE CHANGE

Why the COP26 summit ended in failure and disappointment Robert Hales & Brendan Mackey After two hard-fought weeks of negotiations, the Glasgow climate change summit is, at last, over. All 197 participating countries adopted the so-called Glasgow Climate Pact, despite an 11th hour intervention by India in which the final agreement was watered down from ‘phasing out’ coal to ‘phasing down’. In an emotional final speech, COP26 president Alok Sharma apologised for this last-minute change. His apology goes to the heart of the goals of COP26 in Glasgow: the hope it would deliver outcomes matching the urgent “code red” action needed to achieve the Paris Agreement target. At the summit’s outset, UN Secretary-General António Guterres urged countries to “keep the goal of 1.5oC alive”, to accelerate the decarbonisation of the global economy, and to phase out coal. So, was COP26 a failure? If we evaluate this using the summit’s original stated goals, the answer is yes, it fell short. Two big-ticket items weren’t realised: renewing targets for 2030 that align with limiting warming to 1.5oC and an agreement on accelerating the phase-out of coal. But among the failures, there were important decisions and notable bright spots. So let’s take a look at the summit’s defining issues.

Weak 2030 targets The goal of the Paris Agreement is to limit global temperature rise to well below 2oC this century and to pursue efforts to limit warming to 1.5oC. Catastrophic impacts will be unleashed beyond this point, such as sea level rise and more intense and frequent natural disasters. But new projections from Climate Action Tracker show even if all COP26 pledges are met, the planet is on track to warm by 2.1oC , or 2.4oC if only 2030 targets are met. Despite the Australian government’s recent climate announcements, the nation’s 2030 target remains the same as in 2015. If all countries adopted such meagre near-term targets, global temperature rise would be on track for up to 3oC. Technically, the 1.5oC limit is still within reach 08

Domestic politics rather than international pressure is often the force driving climate policy

because, under the Glasgow pact, countries are asked to update their 2030 targets in a year’s time. However, as Sharma said, “the pulse of 1.5 is weak”. And as Australia’s experience shows, domestic politics rather than international pressure is often the force driving climate policy. So there are no guarantees Australia or other nations will deliver greater ambition in 2022.

Phase down, not out India’s intervention to change the final wording to ‘phase down’ coal rather than ‘phase out’ dampens the urgency to shift away from coal. India is the world’s third-largest emitter of greenhouse gases, after China and the United States. The country relies heavily on coal, and coal-powered generation is expected to grow by 4.6% each year to 2024. India was the most prominent objector to the ‘phase out’ wording, but also had support from China. And US climate envoy John Kerry argued that carbon capture and storage technology could be developed further, to trap emissions at the source and store them underground. Carbon capture and storage is a controversial proposition for climate action. It is not proven at scale, and we don’t yet know if captured emissions stored underground will eventually return to the atmosphere. Around the world, relatively few largescale underground storage locations exist. And it’s hard to see this expensive technology ever being costcompetitive with cheap renewable energy. In a crucial outcome, COP26 also finalised rules for global carbon trading, known as Article 6 under the Paris Agreement. However, under the rules, the fossil fuel industry will be allowed to ‘offset’ its carbon

But among the failures, there were important decisions and notable bright spots

emissions and carry on polluting. Combined with the ‘phasing down’ change, this will see fossil fuel emissions continue.

Not all bad Despite the shortcomings, COP26 led to several important positive outcomes. The world has taken an unambiguous turn away from fossil fuel as a source of energy. And the 1.5oC global warming target has taken centre stage, with the recognition that reaching this target will require rapid, deep and sustained emissions reductions of 45% by 2030, relative to 2010 levels. What’s more, Article 21 of the Glasgow Climate Pact includes protecting forests and biodiversity. This comes on top of a side deal struck by Australia and 123 other countries promising to end deforestation by 2030. The pact also urges countries to fully deliver on an outstanding promise to deliver US$100 billion per year for five years to developing countries vulnerable to climate damage. It also emphasises the importance of transparency in implementing the pledges. Nations are also invited to revisit and strengthen the 2030 targets as necessary to align with the Paris Agreement temperature goal by the end of 2022. In support of this, it was agreed to hold a high-level ministerial roundtable meeting each year focused on raising ambition out to 2030. The US and China climate agreement is also cause for cautious optimism. Despite the world not being on track for the 1.5oC goal, momentum is headed in the right direction. And the mere fact that a reduction in coal use was directly addressed in the final text signals change may be possible. But whether it comes in the small window we have left to stop catastrophic climate change remains to be seen. Robert Hales is the director, Centre for Sustainable Enterprises, at Griffith University and Brendan Mackey is the director of the Griffith University Climate Change Response Program. ■ The above piece was first published in The Conversation and is republished with permission

■

Nov 26 2021 Issue 42

EMPLOYMENT LAW

Judges meet the ADLS Employment Law Committee

Recent Employment Court hearings have taken place either remotely or by way of a hybrid model where some parties and witnesses have been present in the courtroom and others have appeared remotely

William Fussey

timely manner, the judges said. This contrasts with the well-publicised delays The short-term and long-term in the Employment Relations Authority. impact of covid-19 restrictions on the Recent Employment Court hearings Employment Court’s operation was high have tended to take place either on the agenda when Employment Court remotely or by way of a hybrid model Judges Joanna Holden and Kathryn where some parties and witnesses have Beck joined the ADLS Employment Law been present in the courtroom and Committee at its monthly meeting on 17 others have appeared remotely. November. Judge Kathryn Beck Whilst decisions around operational The two judges met with the matters have been made on a relatively committee over Zoom to discuss issues ad hoc basis, Judges Holden and Beck said the of importance to the profession. Employment Court was considering protocols to Judge Beck advised that since Auckland entered apply across the board, including ways to routinely lockdown in mid-August, hearings had proceeded accommodate in-person hearings under the upcoming or been adjourned on a case-by-case basis. covid-19 protection framework. Adjournments have not only been granted because of Ultimately, as these protocols are developed, logistics but also for any equitable reason, including the Employment Court will have to grapple with counsel’s competing obligations. difficult issues around the extent to which parties and In general, Judges Holden and Beck encouraged other courtroom personnel will be required to have counsel to proactively contact the Employment Court vaccination certificates for an in-person hearing to registry if there were any procedural concerns as proceed. It is expected, however, that the New Zealand the judges themselves may not be as close to the courts will take a universal approach to developing proceedings as counsel, meaning they don’t always such protocols. have the full picture. Nevertheless, Judge Holden said she was Despite adjournments resulting from covid-19 impressed with the technology that enables the restrictions, the Employment Court is still well-placed Employment Court to operate a remote courtroom. to hear urgent cases and to schedule hearings in a

Generally, appearing from different locations did not seem to disadvantage counsel, she said. And due to their success, remote hearings might be used more widely in future, regardless of the existence (or otherwise) of covid-19. Inevitably, the discussion turned to whether the Employment Court was preparing for more test cases on vaccination, with Judge Holden indicating this might be expected in the coming months. She also encouraged parties to consider whether an application to remove matters from the Employment Relations Authority to the court might be useful in situations of significant public interest or in areas requiring public guidance. Finally, Judges Holden and Beck were given an opportunity to reflect on the potential impact of the Supreme Court decision of FMV v TZB [2021] NZSC 102 on the nature of future Employment Court cases. Judge Beck said the broadening of the jurisdiction would flow through to the Employment Court and anticipated that a number of disputes that would ordinarily have been heard in the High Court could now be expected to make their way through the employment jurisdiction. ■ William Fussey is an associate at SBM Legal and a member of the ADLS Employment Law Committee ■

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

Continued from page 05

COMMERCIAL / PROPERTY LAWYER INTERESTED IN FORESTRY & CLIMATE CHANGE – AUCKLAND

duty in the unusual circumstances that presented themselves to the court.

A new fiduciary relationship?

You

Writing extra-judicially for the Society of Trust & Estate Practitioners New Zealand 2021 Conference, Justice Stephen Kós, President of the Court of Appeal, suggested at [50] of his paper that fiduciary law’s modern form focuses on three indicia, as being the essence of a fiduciary relationship: ■ the possession of powers, either agreed, assumed or imposed; ■ reliance, via a relationship of trust and confidence (or vulnerability); and ■ the assumption of responsibility, actual, inferred or imposed. Is the existence of ongoing damage a new fourth limb for the indicia necessary to capture relationships that have ended but in the eyes of the law may be deemed to continue?

 5 – 10 years’ PQE with a current NZ practising certificate

Questions raised

 Do you want to contribute to NZ’s efforts to combat climate change?  Do you want to work on pioneering projects for some of NZ’s largest forest owners?

 Experience in commercial / property law, ideally with forestry industry experience  Experience in climate change laws, including the CCRA  Strong drafting, transactional and statutory interpretation skills The Role Forestry plays a key role in NZ’s economy and in its response to the climate crisis, including commercial rotational forestry and carbon forestry. Carbon forestry projects are happening in a dynamic regulatory environment, so you need strong statutory interpretation and analytical skills. Ideally you will have a good working knowledge of the CCRA, but if you have the rights skills, we can teach you the specifics. The work is diverse, and we work closely with other industry experts. Our work includes corporate and structuring advice, regulatory advice, M&A, property transactions of all types including purchases, leases and forestry rights, NZU sales contracts, general contracting and strategic advice. Contact Craig Nelson has over 20 years’ experience as a commercial lawyer acting for a wide range of clients across a wide range of industries, including a growing forestry / climate change practice. Craig Nelson BCom LLB 027 808 2461 | craig@baylawoffice.co.nz

The A, B & C judgment raised the following questions: ■ Can a party to fiduciary relationship continue to owe fiduciary duties after the relationship has ended? Is the existence of ■ Can a breach of a fiduciary ongoing damage duty in and of itself extend a new fourth a fiduciary relationship until limb for the the breach is remedied? The answer to both questions indicia necessary appears to be ‘yes’.

The future

to capture relationships that have ended but in the eyes of the law may be deemed to continue?

Practitioners will be looking at fiduciary relationship with new and expectant eyes now that its parameters have apparently been broadened. In Vervoort v Forrest [2016] NZCA 375, the Court of Appeal rejected application of the traditional trust principles of unanimity of trustee decision-making and prohibition on trustee delegation, saying in the New Zealand discretionary family trust context, those principles had to “bend to practical realities” [62] and “could not be allowed to operate as a weapon for inequity” [64]. Perhaps it is time for delinquent parents to face the music by the application of equity in the manner done in A, B & C. Gwyn J’s judgment might be a compassionate and just result from the plaintiffs’ perspective but is the premise upon which this result is derived a welcome ‘bending of traditional principles’ to secure a humane and equitable result? Or has the apparent extension to what constitutes a fiduciary relationship gone too far, introducing uncertainty about when such relationships might exist and what the consequences of a breach of a fiduciary duty might be? ■ Andrew Steele is an Auckland barrister specialising in family trusts and estates disputes ■

Nov 26 2021 Issue 42

CYBERSECURITY/CPD EVENT

How to protect yourself from phishing scams Phishing has become the first step for cyber criminals in developing steps to attack and destroy an organisation’s defence around its data

Lloyd Gallagher

had information gathered from a dark web scan of the firm’s data breach where the professional shared information. Using this information, the professional Today I went phishing, not in the traditional sense but was conned into releasing access to a server login. in the cybersecurity sense, and I was excited as both The actor then used this information to exploit an small and big fish were biting. unpatched issue and the firm was immediately faced Phishing has become the first step for cyber with a ransomware lockout. criminals in developing steps to It is important to note that the attack and destroy an organisation’s The scams are person approached was an IT defence around its data. September not easy to spot professional but had not updated his 2021 was particular noteworthy, with exploits in Microsoft software causing due to the style cybersecurity knowledge since 2019. asked, he said he thought he widespread data breaches and the of the requests When had enough knowledge to be safe. But information of millions being sent into cyberattacks are now so sophisticated the dark web. that regular refresher courses have No one was safe during the become a requirement, if not a necessity. September attacks: Microsoft saw issues on its 365 As we move to more home-based working platforms, Azure and Windows; Apple saw issues on its environments due to covid, the risks will only increase, Facetime; and Twitch, Facebook and others had data and insurers are becoming more reluctant to provide breaches of some form. With all this information in the cybersecurity cover. Knowing how to approach cyber hands of cyber criminals, it was only a matter of hours risks is more important now than ever. Mitigating your before they turned to phishing attacks. risks is the only option with insurers taking a back seat October and November have seen a rise in the approach. number and sophistication of phishing attacks. Regulators have seen the problems and begun Farmed from data breaches, emails have been sent to implement optional cybersecurity standards as to users’ email addresses. They include queries that they get their heads around how responsibility, and range from simple offers to deliberate approaches for what minimum standards, should be applied. The business assistance. The most common of late is the National Cyber Security Centre and the Control SEO marketing which is routed through Gmail. Systems Security Information Exchange published The scams are not easy to spot due to the style the Voluntary Cyber Security Standards for Control of the requests. Information purporting to be from a Systems Operators (VCSS-CSO) Version 1 to try customer requesting legal assistance is becoming and assist organisations with an approach to these common for law firms. Another form is the IT support threats. operator trying to assist you with a problem. What Other governments internationally are doing makes these more sinister is the use of information to the same as they work towards some form of manipulate you into believing the call is legitimate. understanding. One recent attack saw a firm’s staff member However, it is still down to the individual to contacted about an issue on the network. The caller

Lloyd Gallagher

understand and implement such policies. And they fail to connect individuals with the idea that they are the weak link. Why? Because individuals consider they are safe because the firm’s IT department or their own local ISP is a watchdog. This fallacy continues to get people into trouble. Every day we see people attacked through the personal information they post that then allows an attacker to exploit a firm. The first line of defence is you. Every firm and individual must be proactive in protecting their personal information on the web.

ADLS webinar So, how can we help? ADLS is running a webinar focused on how you, as an individual, can stay alert and prevent phishing from happening to you. We aim to give you the knowledge to better arm yourself against information-gathering and will show you how to recognise a potential threat actor. With the increased sophistication of these attacks, even those who have been to cybersecurity training CPD or webinars can benefit from a refresher. We will give you tips and tools to shield yourself from these new forms of phishing attacks, so you don’t fall prey over the Christmas holidays. Taking examples from stories and international articles, and cybersecurity approaches from international leaders, we will demonstrate what you need to know, how to identify an attack and how you can protect yourself against cyber criminals. As Christmas approaches, it is prudent for everyone to be updated and informed about the new styles associated with phishing scams. Don’t delay, register for the CPD today. ■ Lloyd Gallagher is managing director of Gallagher and Co and the convenor of the ADLS Technology & Law committee ■ 11

FEATURED CPD

FINAL NOTICE

COVID-19 CLIENTS PRIVACY

Practising professionally in the pandemic Webinar 1 CPD hr Monday 29 November 12pm – 1pm Chair and Panellist Paul Collins, Barrister, Shortland Chambers Panellists 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

FINAL NOTICE

Trans-Tasman Resources

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

FIND OUT MORE

FINAL NOTICE

DEVELOPMENTS EVIDENCE INSIGHTS

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

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 12

Nov 26 2021 Issue 42

adls.org.nz/cpd

FINAL NOTICE

Gone phishing

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

cpd@adls.org.nz

09 303 5278

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.

THREAT RISK PROTECTION

LIVE STREAM

How to manage difficult and stressed clients CLIENTS DIFFICULT STRESS

Webinar 1.5 hrs Thursday 2 December 4pm – 5.30pm Presenters Julie-Anne Kincade QC; Kirsty Swadling, barrister and mediator, Ponsonby Chambers and Katie Gray, founder, Principals of Practice Chair Ellen Snedden, senior solicitor, Simpson Western

Leading your career (Wellington)

Stress is an inevitable part of being a lawyer. The way we handle clients significantly contributes to our stress levels, especially clients who are difficult or under pressure themselves. In this webinar, a criminal lawyer, family lawyer and professional executive coach outline strategies to better manage difficult/stressed clients and situations.

LIVE STREAM

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 13

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

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

FIND OUT MORE

Immigration policy changes

‘Court’ by forensics

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

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

Practising Professionally in the Pandemic Helping Lawyers Meet the Challenges of COVID Culture Monday 29 November | 12.00pm - 1.00pm | 1 CPD hour Visit adls.org.nz for more information. 14

LIVESTREAM

Nov 26 2021 Issue 42

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

adls.org.nz

LEGAL EXECUTIVE

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

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

ADLS, PO Box 58, Shortland Street,

DX CP24001, Auckland 1140

Fax: (09) 309 3726

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

(09) 303 5270

Lawyer – Minimum 8 Years’ PQE – Pukekohe DE RAAD Alwyn Flavian

TIARE Awhina Gwenyth

• Late of 41 Domain Crescent, Muriwai, Auckland • Unemployed • Aged 51 / Died on or about 08’10’21

• Late of Tokoroa • Widow • Aged 59 / Died 25’10’04

HALEY Bruce Patrick • Late of Unit 2, 12 Perla Road, Matamata • Groundsman • Aged 67 / Died 05’09’21

WUNSCHE Frank Ruediger (A.K.A WUENSCHER, Frank Ruediger, and WUNSCHE, Frank Rudiger) • Late of Germany • Retired • Aged 77 / Died 15’10’19

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

Nov 26 2021 Issue 42

LAWYER, minimum 2 years’ PQE – Katikati

PROPERTY LAWYER

Intermediate/Senior Solicitor

Are you a lawyer with 2 years or more experience working in property law, relationship property, trust law, wills and estates? We are looking for a talented lawyer to join our friendly team. Anderson Law is a well-established small law firm specialising in property law with growth in other areas available. We are in Katikati, a great little town in the Bay of Plenty, not too far from Auckland, Tauranga and Hamilton. If this sounds like the job for you, please forward your CV by email to john@andersonlawoffice.co.nz

We are a busy provincial law firm situated at the gateway to 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.

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

Cruickshanks Solicitors Privy Council Agents • • • • • •

This space could be yours LawNews reaches a discerning audience of nearly 6000 lawyers, judges, politicians and academics every week.

Probate and resealing Property (Relationships) Act 1976 agreements Agency litigation Sole representative of overseas office, inter company transfers and work permits generally Property UK and European investment China network connections and representation

Get your message in front of them. Call our advertising executive, Darrell Denney, on 021 936 858 or email Darrell on Darrell.denney@adls.org.nz

10 Bentinck Street, London W1U 2EW Tel: (0044) 020-7487 4468 • Fax: (0044) 020-7487 5466 • Email: john@lawco.co.uk www.cruickshanks.co.uk • www.lawco.co.uk

Gone Phishing Thursday 2 December | 12.00pm - 1.00pm 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.

T 09 303 5278

E cpd@adls.org.nz

W adls.org.nz/cpd

Bookstore A convenient, one-stop-shop for all your legal resources ADLS members, including student members, receive a 10% discount

Visit the online bookstore:

adls.org.nz/bookstore Phone:

09 303 5270 Email:

thestore@adls.org.nz

The ADLS Bookstore couriers nationwide. Or, browse in person at: The ADLS Bookstore Ground Floor Chancery Chambers 2 Chancery Street Auckland CBD

Trans-Tasman Resources Tuesday 30 November | 1.00pm - 2.00pm This webinar will explore the nature and facts of the Taranaki-Whanganui v Conservation Board; 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