LawNews - Issue 9

THIS WEEK’S ARTICLES

Issue 9 1 Apr 2021

New MP Helen White seeks revamp of restraints of trade p1

Aussie court sheds light on unconscionable conduct p5

Are lockdowns the tool of lazy and authoritarian govts?

Pages 8-9

LawNews adls.org.nz

COMPETITION/EMPLOYMENT LAW

New MP seeks rethink on restraints of trade

By Diana Clement

Former employment lawyerturned-MP Helen White is preparing a bill to reform restraints of trade law, saying it is long overdue in the employment jurisdiction.

White, who entered Parliament last year on the Labour Party list, told a recent New Zealand Employment Law conference that while she had alluded to a private member’s bill in her maiden speech to Parliament, she now intends to lobby to get her bill on the government’s policy agenda.

In her view, restraint of trade (RoT) clauses in employment contracts have the effect of keeping workers poor by limiting their options to change employers or start businesses. This can also stifle innovation, White says.

Likewise, in employment law, RoTs often find their way into the contracts of key employees who might have access to intellectual property considered critical to their employer’s business, such as trade connections and secrets. As well as walking out the door and taking valuable knowhow to the opposition, RoT clauses are designed to stop employees poaching customers, suppliers or fellow staff when they move jobs or set up on their own.

They must be balanced against the employee’s right to earn a living and are upheld by the courts if they are found to be reasonable.

Speaking at an ADLS CPD seminar last month, barrister Deirdre Watson said RoT clauses are a useful commercial device whereby employers, franchisors, shareholders and businesses generally Continued on page 2

Photo by Hagen Hopkins / Stringer / Getty Images

RoT clauses are common in the sale and purchase of businesses and are designed to protect the vendor from competing directly with the purchaser within a specific geographic limit and for a specific time.

Restraints of trade crimp the rights of low-paid workers

Connecting restraints of trade with the gap between rich and poor is something that [unions] have to grapple with. You are catching the very people who you want to be free to move up in wages – your low-paid workers

COMPETITION/EMPLOYMENT LAW

New MP seeks rethink on restraints of trade Continued from page 1

The problem with the Fuel case, says White, is that a barista’s skill and personality drive customer loyalty. The ability to use those attributes to earn $5 an hour more at the employer across the road is a barista’s way out of a low-wage job. “It’s keeping down wages by stopping the competitive power.”

She adds: “There’s a degree of alienation in [a judge] making a decision like that.”

can protect their legitimate interest.

“Some restraints are very healthy from the commercial point of view. They can drive an economy [and] drive business. You need to have that balancing act.”

But White says the concept was originally designed for 19th century workplaces. RoT clauses crimp the rights of low-paid workers and some franchisees, who often cave in rather than ignore an unreasonable clause in their employment agreement.

What’s more, she says, workers sign these agreements at the beginning of their employment but are held to them at the end. “They’re stuck with what’s in the agreement and the agreement is one-sided. When they want the job, they may not have much choice.”

Consideration A major issue with RoT clauses in the 2020s is that employees often don’t receive any consideration for the restraint.

White cites Fuel Espresso Ltd v Victor (Chi-Huan) Hsieh [2007] NZCA 58 as an example of employees not receiving consideration for giving away their rights. Hsieh’s employment contract as a low-paid barista for a coffee van company included an RoT clause that prevented him for a period of three months from working in a competing espresso bar, café or coffee company within a 100-metre radius of a Fuel’s operation or from setting up a competing business within 5 km.

When Hsieh left to start work at another cart 70m away, Fuel sought an injunction that he cease working for the cart for the three-month period set out in his agreement.

Other issues that come into play with cases such as this are the employer’s or franchisee’s proprietary interests, legitimate interests, geographical region and an appropriate timeframe for a restraint. The courts also consider the public interest factor, says employment law barrister Helen Gilbert.

Helen White

Employers will put restraints of trade across the board – the same restraint for every single employee The Employment Court found in favour of Hsieh because of a lack of valuable consideration but the Court of Appeal disagreed. The Court of Appeal determined it was not the job of the courts to inquire into the adequacy of consideration although it could be relevant in some circumstances, such as where a group of like employees are paid the same but only one has a restraint of trade provision.

On the geographical front, no one yet knows how restraint over cyber businesses will play out in the courts here. Gilbert recommends reading The Restraint of Trade Doctrine in the Era of Digital Markets by David Thorpe, a lecturer at the University of Technology in Sydney.

The effects of RoTs on low-paid workers fly under the radar, White says.

“Connecting restraints of trade with the gap between rich and poor is something that [unions] have to grapple with. You are catching the very people who you want to be free to move up in wages – your low-paid workers.”

RoT clauses affect the collective wellbeing of union members because they push down wages. “Yet [an RoT] is not something that unions see because they would never in a million years have it in a collective agreement,” she says.

Bark or bite?

RoT clauses have been described as being like a Continued on page 4

Photo by Jennifer A Smith / Getty Images

No LawNews next week LawNews traditionally takes a break over Easter, meaning there will be no issue on Friday April 9. Our next publication date will be Friday April 16.

LawNews and ADLS would like to wish you all a happy and relaxing Easter break.

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Editor: Jenni McManus

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LawNews Issue 9 | 1 Apr 2021

COMPETITION LAW

Sharing the pot around: market allocation

By Gary Hughes

rationale for it.

When markets turn south or experience some sort of external shock – for example, technology, input cost or government policy change – incumbent suppliers may struggle to react.

Recognising the frequently pro-competitive nature of collaboration, and the need to compromise wide cartel definitions, a ‘collaborative activity’ exemption exists (s 31) if it can be shown that:

Sometimes, rival firms look to each other for dialogue about ways to prop up a diminishing pot of gold. Those conditions are ripe for cartel conduct.

Firms may find it easier to agree to reduce the fields in which they compete, rather than try to coordinate and maintain outright prices. This week’s focus is agreements that have the purpose or effect of sharing (ie, allocating) aspects of a market.

Competitors who try to divvy up the market between themselves (eg, ‘we will let you have the South Island if you leave our North Island customers alone’) will readily feel the wrath of the Commerce Commission, as with any blatant price fixing arrangement. But often things are not so obvious.

Market sharing Even under older price fixing rules, an arrangement to divide up markets – by customers, regions or product/service – was illegal, regardless of actual impact on competition. It was treated as an indirect means to fix prices, as economic theory suggests sharing out supply areas amongst should-be competitors can operate so as to maintain the price to affected customers.

The case that confirmed market sharing can be treated as equivalent to price fixing was CC v Eli Lilly in 1999, albeit only in an agreed penalty/ settlement hearing. Wholesalers of animal health products to vets agreed that one would sell only to customers buying more than $10,000 worth of products annually, while the other would exclusively focus on smaller customers under $10,000 sales. Penalties of $700,000 were ordered by the High Court.

Nuts and bolts Commerce Act cartel provisions (s 30A(4)) now directly define and outlaw arrangements to allocate markets in these terms: “…allocating between any two or more parties to a contract, arrangement, or understanding, or providing for such an allocation of, either or both of the following: (a) the persons or classes of persons to or from whom the parties supply or acquire goods or services in competition with each other: (b) the geographic areas in which the parties supply or acquire goods or services in competition with each other.”

Firms cannot agree amongst themselves which

two or more parties are involved in genuine collaborative activity carried on in co-operation;

the activity is not carried on for the dominant purpose of lessening competition; and

the cartel clause or restraint is reasonably necessary for the purpose of the collaboration.

JVs, franchises and distributorships might arguably have multiple purposes. If the prevailing or most influential purpose relates to dampening competitive activity, it could fail the test.

Gary Hughes

customers, or groups of customers, to each supply, or on the buying side which ones they will support.

Similarly, clauses that allocate products, services, distribution channels or geographical areas will be caught. Extended wording for clauses that merely ‘provide for’ such things to happen aims at indirect mechanisms to the same end.

The policy intent is that rivals should not agree to allow each other freedom in those areas without competition. An arrangement that has a quid pro quo nature, for other business or benefits, or involves one firm withdrawing from a market it previously supplied, in exchange for reciprocal treatment elsewhere, is risky.

Firms should make their own independent decisions and be wary of information exchange with competitors that might be misconstrued later, in the cold light of a commission investigator’s day.

Australian example The ACCC started court action in 2020 against an overhead crane company in the construction sector. The regulator alleges that a distributorship agreement signed with a competitor crane hire firm included a provision not to target each other’s existing customers in Brisbane and Newcastle.

The case is ongoing. Design, supply, servicing and spare parts aspects of crane markets are affected.

New exemption This should not mean all dealings with competitors are off-limits or all routine restraint clauses in contracts are problematic. But it does require that clients put some thought into what they are agreeing and the business necessity or

The restraint must be reasonably necessary to make the collaboration work, not necessarily ‘essential’. Guidelines suggest the parties must demonstrate they would be otherwise ‘materially hindered’ in achieving the collaborative purpose.

If this exemption applies, cartel conduct is avoided.

But this protects only against risk under s 30; s 27 still applies if a likely effect of substantially lessening competition arises.

Key risks A wide range of unincorporated strategic alliances, partnering deals or joint initiatives could be affected. Industries such as construction or manufacturing may be in the spotlight. Franchises and national distributor systems frequently organise around exclusive geographic territories.

Many should be protected under the new exemption. There might be good reason to allocate aspects of the alliance and confirm it by written restraint. Those incentives may facilitate a new product, service or app coming to market more quickly and efficiently than one party trying to do it alone.

However, to get the benefit of the exemption the commission will test the purpose and rationale, and whether that allocation was reasonably necessary.

Could one party have gone it alone, and why didn’t it? Was that for reasons to do with competition, as opposed to efficiency and resource-pooling?

The commission has outlined its general stance in guidelines but to date there have been no public examples or court guidance. So, it is wellintentioned but remains to be seen in practice how useful the exemption really proves.

Gary Hughes, barrister at Akarana Chambers, specialises in regulatory investigations and proceedings, especially Commerce Commission, FMA, SFO, Police FIU and AML/CFT supervisor cases.

Next week: restricting output 3

Continued from pages 1, 2 compete clauses are bad was pretty clear.

dog whose bark is bigger than its bite because prima facie they are not enforceable unless they can be proved reasonable. The courts will be reluctant to stop people earning a living with their skills and knowledge.

He cited the case of a low-wage worker, earning US$12 an hour, who was offered US$15 an hour at a competitor. “A noncompete could prevent them from making those sorts of moves that are going to enhance their social and economic mobility,” says Starr.

Gilbert says the clauses aren’t always well drafted.

They may cover too wide a geographical area, too long a time period or have other issues around the proprietary or legitimate interest the employer is seeking to protect.

Blanket clauses covering all employees or groups of employees often don’t work. “Employers will put restraints of trade across the board – the same restraint for every single employee. I think it’s appropriate for senior people. I agree in relation to the low-paid workers that there really should be some legislation prohibiting restraints of trade for those low-paid workers.

“There has to be that connection between what the employee does and what the restraint is trying to protect,” says Gilbert. Even so, employers and franchisors may not care because they know nine times out of 10 people will do what’s in the contract.

Watson says it’s a mistake to assume RoTs are not enforceable. “I think there is a widespread misunderstanding out there around where the restraints are binding. I’ve had many experiences of people who are subject to restraints, saying, ‘well, this is a restraint, but everyone knows restraints of trade clauses aren’t binding’.”

Those assumptions can come back to bite. In Zeald New Zealand Ltd v Bernard [2013] NZERA Auckland 402, Bernard (the employee) was ordered to pay his former employer $50,000 for RoT breaches of provisions in his employment agreement. Bernard had solicited three former colleagues and 41 of Zeald’s customers. The ERA imposed a high penalty to set an example over the flagrant conduct.

Franchisors, in particular, are often willing to come chasing, Watson says. They have the legitimate interest in their brand and systems they need to protect, along with the wider interests of other franchisees who will be watching from the wings.

“The cost of pursing a breach of a restraint of trade obligation will often not be a factor. Often, the franchisor won’t care at all what it costs. They just need to take action to stop the conduct and they need to act quickly.

“They have very sound commercial reasons why they need to stop people breaching the restraints.

Very often, where there is one ex franchisee at war with the franchisor over a restraint, half a dozen other franchisees will be sitting on the fence just watching and waiting and quietly talking amongst themselves to see what happens.”

Stifling innovation RoT clauses affect more than just the individuals and the businesses involved. One of the downstream effects is that they can stifle innovation, White says. RoTs emerged when an employer owned all employee inventions, wherever 4

Oregon banned noncompete clauses in 2008 and Starr’s research found that the data showed low-wage workers benefited from the ban, earning higher wages and changing jobs more frequently.

Deirdre Watson

RoT clauses have been described as being like a dog whose bark is bigger than its bite because prima facie they are not enforceable unless they can be proved reasonable they were created. “They also used to give you a job for life.”

“So now our new capital is our inventive power and ….we, without even thinking, are giving this to an employer because it’s standardised in our old agreements. It shouldn’t be. Why, if somebody invents something, even in their workplace, shouldn’t they get a piece of the profit out of that?”

If people’s inventive power is restrained, so too is innovation, White says.

Silicon Valley RoT clauses have caused serious issues in the heart of Silicon Valley. Apple, Google, Intel and Adobe Systems were subject to antitrust litigation by the United States Department of Justice and a class action in relation to “no cold call” agreements in which the companies were accused of conspiring to prevent the hiring of each other’s employees. Workers claimed the agreements limited opportunities and bullied them into toeing the line.

In the past three years, several state legislatures, including Maryland, Virginia and Washington DC, have followed Oregon and moved to ban noncompetition clauses in employment agreements for low-wage earners.

Research by Evan Starr of the University of Maryland found the argument for why non-

On average, he wrote, hourly workers’ wages grew by 6% after the ban had been in force for five years.

The positive wage effects were across the board and in all age groups and education levels. The researchers also found workers’ job mobility rose by 17% overall, with 79% of this increase in mobility driven by an increase in moves within an industry.

“Exactly the kinds of moves that a noncompete would prohibit,” Starr says.

Noncompete agreements also stifle the wider economy and hamper entrepreneurial activity, according to Jessica Jeffers of Chicago’s Booth School of Business.

She mined LinkedIn data on people working in high-tech sectors and found that when noncompete clauses became easier to enforce, 12% fewer workers left their companies to take other jobs within the same industry. Likewise, fewer employees left for more senior positions and the numbers of employees leaving for start-ups dropped. On the other hand, she found the noncompete clauses significantly boosted investment at large existing companies.

Private member’s bill or policy?

White has a private member’s bill in the ballot about bankruptcy, which she says is important in its own right. If she were to go down the private member’s bill route with RoT, she would have to replace that bill.

The bankruptcy bill is a simpler piece of work and more appropriate to a private member’s bill, she says, because it’s a discrete issue compared to RoT, which would involve structural change.

Before drafting the RoT bill, White says she needs to do considerable research, both here and overseas, and connect with fellow MPs. There may be room for lobbying other parties. She sees RoT clauses as anti-competitive behaviour and an issue the Act Party, for example, might also take umbrage with.

Once a bill is drafted, White will put it to her Labour Party colleagues. She hopes to add it to the agenda at her regional conference first and then move on to policy conferences. “It’s like lots of different processes that I’ll be using to push it.”

White is a first-term MP and says she is enjoying the learning curve and making connections through this issue. “It is something I could offer as a contribution that would allow wages to increase, at the bottom end in particular.”

Click here for more information

LawNews Issue 9 | 1 Apr 2021

CONSUMER PROTECTION LAW

Aussie court rules on unconscionable conduct

By Richard Massey & Tim Shiels

In a judgment issued last week, the Full Federal Court of Australia shed partial light on the scope of the prohibition against ‘unconscionable conduct’ under Australia’s consumer protection law.

While the court offered no concrete definition of the term, it held that it does not require the exploitation of some disadvantage or vulnerability to be established (although this might often be the case) and could arise even where no such vulnerability exists.

The Australian Competition and Consumer Commission (ACCC), which brought the claim, describes the result as “an extremely important decision for all Australian consumers and businesses”.

Richard Massey

The judgment may also be significant for businesses in New Zealand as an equivalent prohibition on unconscionable conduct has been proposed under the Fair Trading Amendment Bill.

So, the case will interest those wanting to understand the potential impact of the proposed amendments.

The facts The defendant, Quantum Homes, arranged investments in properties that qualified for financial incentives under the Australian government’s National Rental Affordability Scheme (NRAS).

The NRAS offered tax and cash incentives to providers of new dwellings, so long as they were rented to low- and moderate-income households at below-market rates. Quantum was an approved participant under the NRAS. Various private investors purchased rental properties from Quantum under agreements which provided for sharing of the financial incentives under the NRAS. Property managers were typically appointed to manage the properties in a manner that ensured ongoing qualification for the NRAS incentive.

From 2017, Quantum implemented a scheme under which:

It recommended that investors terminate their agreements with existing property managers and replace them with a select list of other ‘approved’ property managers designated by Quantum. Quantum had a commercial relationship with the ‘approved’ managers but did not disclose that to the investors.

It also pressured investors into replacing their property managers by requiring any nonapproved property managers to pay a ‘security deposit’ of A$10,000. If property managers refused, Quantum would not renew agreements with the investors.

Eventually, investors who had not changed to a Quantum-preferred property manager were issued with notices stating they were in default under their agreements with Quantum, which governed their entitlement to the incentive under the NRAS.

As a result, 260 investors terminated their arrangements with property managers and appointed one of Quantum’s approved managers.

They were unaware that Quantum had a commercial relationship with those managers.

The claim The ACCC alleged Quantum had engaged in unconscionable conduct by exploiting its superior bargaining position.

As the participant under the NRAS, it received the incentives so investors were depending on Quantum to pass them on and could not, under the terms of the NRAS, change to another participant.

Abusing this position to pressure investors into replacing their property managers with Quantum’s preferred managers was, alleged the ACCC, unconscionable.

In June 2020, the court declared that Quantum had made false or misleading representations but was not satisfied it had engaged in unconscionable conduct because it had not been demonstrated that the investors were at a disadvantage or had some vulnerability which Quantum had exploited (which the court found to be an essential ingredient of unconscionable conduct).

Despite its success, the ACCC appealed that decision to clarify whether a special disadvantage was necessary to establish unconscionable conduct.

Appeal decision On appeal, the Full Federal Court found that while exploitation of vulnerability will often be a feature of unconscionable conduct, that did not ‘exhaust the meaning’ of the term. Rather, the court preferred to avoid imposing narrow requirements on it:

Tim Shiels

‘Unconscionable’ is the language of business morality and unconscionable conduct is referable to considerations expressed and recognised by the statute. The word is not limited to one kind of conduct that is against or offends conscience. Surely to predate on vulnerable consumers or small business people is unconscionable.

But why is it not also unconscionable to act in a way that is systematically dishonest, entirely in bad faith in undermining a bargain, involving misrepresentation, commercial bullying or pressure and sharp practice, using a superior bargaining position, behaving contrary to an industry code, using significant market power in a way to extract an undisclosed benefit that will harm others who are commercially related to the counterparty?”

The court described its task as being to assess whether the conduct ‘is to be characterised as a sufficient departure from the norms of acceptable commercial behaviour as to be against conscience or to offend conscience and so be characterised as unconscionable’.

The court also rejected the notion that unconscionable conduct was ‘hinged in some way to the structural form of the equitable doctrine’ and noted that the history, text and structure of the relevant statute was contrary to such a conclusion.

In Quantum’s case, the court found the conduct was unconscionable because Quantum had engaged in “deliberate systematic conduct of misusing their superior bargaining position by dishonestly misleading commercial counterparties… and pressuring the investors by imposing entirely unjustified and unnecessary requirements upon the investors” and because the scheme was implemented to achieve “financial benefits which were surreptitious and undisclosed to the investors”.

Continued on page 10 5

LAW FIRMS

Senior property / general role & Intermediate private client role Top-performing law firm seeks two new team members: (1) senior property / general lawyer with partnership aspirations; and (2) intermediate private client lawyer • Senior property / general lawyer (6+ years’ PQE) – partnership opportunity in two years •

Intermediate private client lawyer (3+ years’ PQE)

My client is a top-performing law firm seeking a senior property / general lawyer with partnership aspirations over the next two years. This is a new role to help manage the firm’s growth and partnership succession.

One of the partners is planning to retire over time, so a rare opportunity exists for an ambitious and capable lawyer to join the firm as a senior associate and work towards partnership. You do not need to bring a client base, as this well-established firm has a substantial client base which requires the right person to help manage it.

This role has a property focus but requires general practice experience. The work is interesting and varied, including commercial and residential property transactions of all types, construction contracts, wills & trusts, estate administration, relationship property and commercial work of all types. You do not need to be an expert in all areas, but your experience and expertise will be primarily in property law, with good private client experience.

A role also exists for an intermediate private client lawyer. This role includes wills & trusts, powers of attorney, relationship property and assisting other staff from time to time on other matters, such as residential conveyancing. You do not need to have experience in all areas, as training and support is available.

COVID has taught many lawyers what my client already knows well – you do not need to work in a city office to do quality work for great clients and have a successful career. My client is a suburban Auckland firm with an outstanding client base and a loyal and capable team of partners, lawyers, legal executives, and support staff.

If you are interested in either role, please email me your CV and any initial questions you may have to sam.bassett@markhams.co.nz

Understanding open and transparent billing

By Juliana Vermaak

Billing is one of the top issues confronting law firms during trust account inspections. It is also among the top causes of complaints filed against firms.

The lack of open and transparent billing has seen many law firms fall foul of the New Zealand Law Society (NZLS). But what constitutes open and transparent billing practices?

Briefly, these may include the following aspects covered in r3.4 and r3.4A, r9 and r11.1 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (LCA Rules 2008): Disclosure of billing practices:

fee-charging structure;

expertise required to complete the services;

consultation of an independent third party if applicable; and

level of complexity and anticipated timeframe to complete.

Disclosure of billing rate Detailed and correctly itemised bills Charging correctly for recoverable disbursements Charging reasonable and legitimate recovery of office expenses

Conflating disbursements and expenses, inflating disbursements and charging for recoveries such as administration fees and agency fees may be disallowed and may not comply with r3.4 and r3.4A, r9 and r11.1 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (Rules).

For an example of a lawyer censured by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal for charging in this way, see Canterbury Westland Standards Committee v P Currie [2015] NZLCDT 15.

In addition, understanding how to correctly lay out a firm’s letters of engagement, terms and conditions of engagement and bills to disclose these requirements is important to ensure clarity and the correct classification and practice of recovering disbursements and expenses.

Before commencing any work, a clear disclosure to clients is required under r3.4 LCA Rules 2008. Maintaining open communication with clients and keeping them informed throughout the provision of services r3.3 LCA Rules 2008 can reduce unnecessary complaints.

Our next article will address billing, disbursements and expenses.

Juliana Vermaak of Baritone Consulting holds a Masters in Professional Accounting and is an associate member of ACFE. She has served law firms in the Auckland region for the past eight years in a consultative capacity and has contracted as an inspector for NZLS

MEDIATION Nigel Dunlop Barrister EXPERTISE & EXPERIENCE Recognised industry experts. Serving legal documents for over 30 years.

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LawNews Issue 9 | 1 Apr 2021

Jason Yang, Joanna Pidgeon, Leigh Judd and ADLS President Marie Dyhrberg QC

Anthony Grant and Sandra Grant

ADLS EVENTS

Auckland Central lawyers’ lunch On Wednesday 24 March, Auckland practitioners joined ADLS for a very sunny lunch at Pilkingtons.

Thanks to MAS for sponsoring this event.

Charlotte Beale, Benazir Din and Andrew Skinner

Edward Chen, Dave Gosper and Nathan Batts

Abigail Shieh, Sean Kim, Joseph Harrop and Ken Huang

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COVID-19

The ‘blood-dimmed tide’ of Covid-19 lockdowns the World Health Organization’s global smallpox eradication program), TV Inglesby, JB Nuzzo, and T O’Toole, Disease mitigation measures in the control of pandemic influenza, Biosecur. Bioterror 2006;4(4):366-75.). The authors of this 2006 study conclude that: “Disease-mitigation measures, however well intentioned, have potential social, economic, and political consequences that need to be fully considered by political leaders as well as health officials.”

Turning and turning in the widening gyre The falcon cannot hear the falconer; Things fall apart; the centre cannot hold; Mere anarchy is loosed upon the world, The blood-dimmed tide is loosed, and everywhere The ceremony of innocence is drowned; The best lack all conviction, while the worst Are full of passionate intensity.

The Second Coming, WB Yeats

By Warren Pyke

Following the High Court’s judgment in Borrowdale v Director-General of Health [2020] NZHC 2090, legal measures for implementing pandemic management tools were tightened.

Bespoke primary legislation was enacted, along with a suite of subsidiary notices, orders and rules governing the exercise of governmental and official power for the purposes of managing the pandemic.

These measures empowered the government for at least two years to deploy levels of social control that are unprecedented in New Zealand.

The purpose of this article is not to finely analyse these legal measures or the Borrowdale judgment.

Instead, I explore important policy issues to answer the question of whether the High Court’s dictum in Borrowdale, at [1] was correct: “But even as this country returns to a state of semi-lockdown, there is one thing on which most commentators are agreed. The decisions taken by the New Zealand government in March this year to ‘go hard and go early’ were the right ones.”

In Borrowdale, the parties adduced no evidence about the social and economic costs of the ‘hard and early’ use of so-called ‘lockdowns’ as an epidemic-management tool.

Nor was there any evidence, let alone contested evidence, of the scientific basis for lockdowns.

While the court cited impressive statistics about the rolling storm that was the pandemic, it was an unexplored question as to whether the government’s measures were empirically supported and proportionate (the High Court held that the first nine days of the lockdown were not lawful, but that the exercise by the DirectorGeneral of a general power under s 70 of the Health Act 1956 authorised the lockdown after 3 April 2020: this is a question under appeal to the Court of Appeal).

The coronavirus 2 (SARS2) viral epidemic has precedents: for example, it displays similar virulence to the 1958 and 1968 influenza virus pandemics, which did not result in governments locking up most of the population in their homes.

SARS2 is nowhere near as virulent or lethal as the 1918 influenza virus. Serious illness or death from 8

There is no evidence this was done before the March 2020 lockdowns.

Warren Pyke

The word ‘lockdown’ is jarring and was previously heard only in prison yards. ‘Lockdowns’ of all types involve an abrogation of fundamental freedoms, bringing to mind this passage from Wordsworth’s Intimations of Immortality from Recollections of Early Childhood (1803-6):

Commanding people to stay put at home for weeks or months is lazy and authoritarian

Covid-19 disease is rare for the young and middleaged (consider one of the worse national mortality rates, from the United States: 3.96% for those aged under 45 years (in this group there is a lot of obesity), and 0.06% for those aged under 18.)

Why did the High Court say nothing about whether a population-wide lockdown can be reconciled with individual autonomy and democratic norms?

Although not mentioned in the High Court’s judgment, the use of stay-at-home orders was said by the WHO to be “unprecedented in public health history” (WHO representative in China – Reuters.

January 23, 2020).

The court mentioned the Prime Minister saying it was unprecedented in New Zealand, but then qualified this by pointing to closures of schools, theatres, music halls, sports and recreation grounds, and restrictions on public assembly and travel of children in 1925. However, based on the court’s survey, there has never been a nationwide confining of people to their homes. To my mind, the Prime Minister was right – the lockdown was unprecedented.

Serious questions have been raised about the effectiveness of population-wide measures. Recent research shows that the evidence for the efficacy of highly-restrictive nonpharmaceutical measures is weak (see E Bendavid, C Oh, J Battacharya, JPA Ioannidis, Assessing mandatory stay-at-home and business closure effects on the spread of Covid-19, Eur J Clin Invest. 2021:51; compare the critique of nonpharmaceutical measures generally, in a leading article authored by Dr Donald A Henderson (Distinguished Professor and Dean Emeritus at Johns Hopkins University; Chief of

“Shades of the prison-house begin to close upon the growing boy… Though nothing can bring back the hour of splendour in the grass, of glory in the flower; we will grieve not, rather find strength in what remains behind, in the primal sympathy which having been must ever be, in the soothing thoughts that spring out of human suffering, in the faith that looks through death, in years that bring the philosophic mind.”

First, the court held that the lockdown limited rights and freedoms (at [199]). Second, the lockdown was held to be authorised by law following the initial nine-day period, although the order covering the following three weeks is challenged on appeal.

The question of whether the lockdown constituted a reasonable limit on protected rights (as can be demonstrably justified in a free and democratic society, see Hansen v R [2007] 3 NZLR 1) did not arise for the court’s opinion. That is because Andrew Borrowdale conceded that the lockdown was a reasonable limit.

I disagree. The case for such an extreme measure ought to be compelling; to my mind it was not.

As already noted, the disease that develops from infection with SARS2 is generally mild in the middle-aged or younger. The actual extent of the Covid-19 disease is not well-established: estimating the infection severity of SARS2 is made challenging by inconsistencies in the available data (O’Driscoll, M., Ribeiro Dos Santos, G., Wang, L. et al, Agespecific mortality and immunity patterns of SARSCoV-2, Nature 590, 140–145 (2021)).

Moreover, the number of deaths associated with Covid-19 is often used as a key indicator for the size of the epidemic, but the observed number Continued on page 9

LawNews Issue 9 | 1 Apr 2021

Continued from page 8 of deaths represent only a minority of all SARS2 infections.

Cause of death is often assumed as being the disease if a deceased person has tested positive for the SARS2 virus, but many of the recorded deaths cannot be causatively shown to be the result of Covid-19 disease, since many have died from other causes, albeit with the disease.

This level of detail, if it is available, is not discussed in the public messaging about the severity of the pandemic, which tends to highlight the numbers, sometimes enhancing public anxiety by showing footage of graves and coffins. The emotional impact of such coverage overlooks that people die every day, every year, in large numbers; they die in their hundreds of thousands of respiratory illnesses and infectious diseases; many tens of thousands of women still die annually in childbirth, and hundreds of thousands are claimed by cancer, AIDS and tuberculosis. We are not shown their coffins, nor are we told about these deaths, or the fact of inevitable death from some cause or other, in nightly news statistics.

Henderson et al observed, in their 2006 study, that beyond widespread vaccination, isolating symptomatic influenza patients, either at home or in the hospital, is probably the most important measure that can be taken to reduce the transmission of a virus within a community.

The sickest and presumably most contagious patients are most likely to seek hospital care. They add that: “The critical importance of hospitals in providing health care during a pandemic cannot be overstated.” Close examination of what occurred in the early stages of the SARS2 pandemic in some of the severely-afflicted population centres shows that vulnerable people were not being adequately protected by health authorities; for example, in New York, patients were being sent home from hospitals in circumstances where they carried the virus back into rest homes (many workers were employed in more than one rest home, who also carried the virus between homes).

This, predictably, took a high toll on the vulnerable (the Governor of New York State is currently facing an inquiry over this issue). Public health institutions had been run down in some of the countries where the toll was heavier, hence Boris Johnson’s plea to “stay home, save the NHS”. Coincidentally, in November 2019, John Pilger had published a documentary highlighting the massively-reduced bed capacity of the NHS, which was a result of successive UK governments selling off or running down bits of the NHS. To gain compliance with the restrictions of lockdown, governments appealed to community spirit (for example, the New Zealand PM’s ‘team of five million’).

Speaking extra-judicially, Lord Sumption has observed that a problem with appeals to solidarity is that they amount to a call to abandon rational thought and logical analysis in favour of emotion, saying: “Solidarity in an ill-thought-out cause helps no one” (Lord Sumption, Mail on Sunday, 27 September 2020).

The temptation is for governments to make restrictive legal measures said to exist to protect people permanently, the enduring Patriot Act in the US being an obvious example. Seeing how efficacious lockdowns have been in controlling the movement of people, coupled with the fanning of fear, governments may make them a permanent feature of health legislation.

These measures empowered the government for at least two years to deploy levels of social control that are unprecedented in New Zealand During the first six months of the pandemic governments, supported by cheer-leading and uncritical mainstream media, generally refused to consider alternative policies, even when scientifically-sound alternatives were advanced by eminent specialists, such as Professors Carl Heneghan and Sanetra Gupta of Oxford University, Professor Mark Woolhouse of Edinburgh University, and the Nobel Prize winner Professor Michael Levitt of Stanford University.

The politics of doing anything other than locking down occurs because politicians think that they will be criticised for inaction, even if action causes grave social and economic harms. This narrow approach did not take sufficient account of previous research, such as that coming from the University of Ottawa’s McLaughlin Centre for Population Health Risk Assessment (Patrick R. Saunders-Hastings and Daniel Krewski, Reviewing the History of Pandemic Influenza: Understanding Patterns of Emergence and Transmission, Pathogens 2016, 5, 66 at 14):

“Pandemics are inherently uncertain, necessitating policies that are flexible in responding to outbreaks as they develop. While insights can be gathered from past experiences of pandemic influenza, it is unlikely that the next event will mimic those of the past.

Continued efforts are required to improve

local, national, and international surveillance, coordination, and resource planning to most effectively mitigate and contain future pandemics.”

Commanding people to stay put at home for weeks or months is lazy and authoritarian. It appeals to the insecurities of the immature mind.

It is not ‘following the science’. It is conducting an experiment. Parliament should be asking how we avoid such measures in the future, not how to perpetuate their availability to successive governments.

The UN’s Framework for the Immediate SocioEconomic Response to the COVID 19 Crisis warned that, “The Covid-19 pandemic is far more than a health crisis: it is affecting societies and economies at their core. While the impact of the pandemic will vary from country to country, it will most likely increase poverty and inequalities at a global scale.”

The economic and social costs of stay-at-home orders have not been proportionally shared. Those involved in the supply of essential services placed themselves at greater risk, and those who work in lower-paying jobs, where face-to-face public contact is required, are suffering permanent loss of employment.

Online shopping enterprises such as Amazon have considerably increased sales, lining the pockets of their already filthy-rich owners. Depression, financial hardship, increased family break-ups and suicides: the social harms of the restrictive measures are great.

Money has been printed, without counting the cost of future inflation; the younger generation’s schooling has been seriously disrupted; tertiary students have been required to continue paying high fees without receiving face-to-face teaching contact. Many of those graduating will either be unable to find work and/or be forever unable to afford to buy a home, owing to the housing and capital asset bubbles caused in part by current monetary policy.

No amount of motorway signage urging us all to be kind and safe will assuage people who cannot pay their bills. I quote Lord Sumption again: “[T]hose who believe that wise governments can triumph over epidemic disease will say that this Government failed because it was not wise enough.

Those who believe that governments cannot, Canute-like, bid the incoming tides to retreat, will blame them for their blighted job-prospects, increased taxes, empty pockets and lost months.

Either way, the Government will be damned.”

Warren Pyke is an Auckland barrister. He was the first to publicly question the legality of the lockdown Also see 9

NEWLY SUITED COMMITTEE

How to dress for an admission ceremony QUESTION Dear Newly Suited I am completing my professional studies and beginning to get excited about my fastapproaching admission. However, my excitement is quickly turning to anxiety as I realise I have no idea about what attire is appropriate for the admission ceremony. Please help! #whatdoIwear

ANSWER Dear #whatdoIwear Congratulations! Reaching this part in your journey is a huge achievement and we know the amount of blood, sweat and tears that have been shed to get to this point. The admission process can be quite daunting, so the Newly Suited Team is pleased to assist you to strike one thing off your list.

The admission ceremony is a formal occasion, attended not only by your family and friends but also senior counsel, judges and other members of the profession. As such, it is critical that you evidence respect and follow the appropriate ritual. Not to mention that you will cherish all

photographs from the occasion for the rest of your life.

These are to be worn over a dark, unembellished suit, consisting of a blazer and pants.

Candidates for admission and their moving counsel have the option of wearing traditional court attire:

For women: white shirt or white blouse; and

wig;

gown

band (also referred to as legal bib); white shirt; and gown These are to be worn over a dark, unembellished suit, consisting of a blazer and pants or appropriate-length skirt (we recommended the skirt is no shorter than above the knee).

Or the candidate and their moving counsel may dispense with the band and wig and only wear:

These are to be worn over a dark, unembellished suit, consisting of a blazer and pants or appropriate length skirt (we recommended the skirt is no shorter than above the knee).

Candidates and their moving counsel may not combine the two options by, for example, wearing a wig and a tie, or bands over a tie.

Whether you choose to wear traditional court attire or dispense with the wig and band, Korowai and Pasifika cloaks may also be worn over the gown.

tie; and

Ensure you make your arrangements to obtain a gown and/or wig and band well in advance of the ceremony for yourself and your moving counsel if required. We also recommend reminding your moving counsel of these requirements.

gown

The Newly Suited Team

For men: white shirt;

Continued from page 5 New Zealand implications The Fair Trading Amendment Bill, in its current form, includes an equivalent prohibition on unconscionable conduct in trade. The bill does not define unconscionable conduct and the courts will have to assess whether conduct is unconscionable on a case-by-case basis.

However, the explanatory note to the bill does at least describe unconscionable conduct as ‘serious misconduct that goes far beyond being commercially necessary or appropriate’ and the bill lists certain factors which a court may consider,

including the balance of bargaining power, the use of standard form contracts and the transparency of terms.

The proposed provisions have been intentionally introduced to align with the Australian regime and therefore the Quantum Homes judgment is likely to provide relevant guidance to a New Zealand Court approaching the new prohibition, if enacted.

Unfortunately, the case will do little to mollify various submitters on the bill who said the standard imposed is imprecise and overly broad.

The findings of the Federal Court – in particular, its comment that businesses ‘need no definition to assist them’ – will doubtless aggravate such concerns.

The bill is awaiting its second reading, after being discharged from the select committee in August 2020 without amendment, despite extensive submissions.

Richard Massey is a senior associate at Bell Gully and Tim Shiels is a solicitor at the same firm

NEW BOOK

Joseph on Constitutional and Administrative Law, 5th edition

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Author: Philip A Joseph

Zealand jurisprudence.

Now entering its fifth edition, this perennial text has been modernised with the new title Joseph on Constitutional and Administrative Law. The new edition builds on the strengths of earlier editions, coupling historical and contemporary analyses of public law principles.

Price: $215.00 plus GST* Price for ADLS members: $193.50 plus GST*

A key development in the fifth edition is the new chapter that records increasing integration of tikanga Māori in legislative and judicial developments. The author interprets these developments as comprising a new form of legal pluralism that signals a distinctively indigenous, New

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

(* + Postage and packaging)

LawNews Issue 9 | 1 Apr 2021

JOIN OUR TEAM QUEEN CITY LAW

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Queen City Law, one of New Zealand’s leading boutique law firms, is currently recruiting:

Intermediate/Senior Employment Lawyer Intermediate/Senior Immigration Lawyer Senior Property and Commercial Lawyers Consultants Queen City Law is a multiple award-winning law firm.

Our culture is special, admired and valued, representing an excellent working environment.

Please forward your CV to careers@queencitylaw.co.nz Alternatively, call Marcus on 0274877332 to discuss further.

More information is available at www.queencitylaw.co.nz or www.qcl-immigration.co.nz

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

Featured CPD Encumbrance Instruments and Covenants in Gross – what’s the issue and where do we go from here?

 Webinar

Encumbrance instruments are a confused beast, relying on technical conveyancing rules to enable personal covenants (that is covenants that are incapable of running with the land) to be made binding in perpetuity on landowners and their successors in title. Used as a device in this way, encumbrance instruments undermine core principles of real property law, creating problems in terms of sustainable land tenure in New Zealand.

Despite recommendations for their abolishment, the Land Transfer Bill was altered prior to enactment to retain the prior use of encumbrance instruments, but with covenants in gross still being introduced.

 Wed, 14 Apr

Learning outcomes: • Understand why the common law has always insisted that personal covenants cannot “run the land”, binding successors in title.

• Understand how the use of encumbrance instruments as a device is not mirrored by comparable overseas common law jurisdictions.

• Appreciate the inconsistencies and weaknesses in the Menere judgments, and why their results are unsustainable.

• Understand the benefits of imposing covenants in gross under appropriate provisions in the Property Law Act 2007, enacted by the Land Transfer Act 2017.

• Consideration of further case law illuminating these problems, including the Court of Appeal judgment in Spark New Zealand Trading Ltd v Clearspan Property Assets Ltd [2018] NZCA 248 and the recent Supreme Court judgment in Synlait Milk Ltd v NZIPL [2020] NZSC 157.

Leading Your Career — Exclusively for Women Lawyers with 6+ years’ PQE Take charge of your career and realise your underlying potential. This practical, interactive one-day workshop, led by one of New Zealand’s top female lawyers and one of New Zealand’s top leadership experts, will arm you with resources, self-confidence and focus to apply immediately to your role and to enhance your future career. Places are limited. Register now to avoid missing out. CPD hours: 7 hours onsite (excluding breaks) plus 1 hour’s preparatory work and completion of an online assessment.

Learning outcomes: • Gain a real understanding of your personal values.

• Better understand your behavioural style, how to ‘read’ others and how to adapt your style to increase your influence.

• Gain insights into how to take responsibility for driving your career and how to challenge undermining self talk that erodes self-confidence.

• Gain clarity about your career purpose and create a clear career vision.

• Develop your ‘brand proposition’ – the reputation needed to realise your career vision.

CPD 1.25 hrs 12pm – 1.15pm

 Presenters Rod Thomas, Barrister, Author and Associate Professor in Law at AUT University Thomas Gibbons, Principal, Thomas Gibbons Law

 Workshop CPD 8 hrs

 Thu, 15 Apr 8.45am – 5pm

 Facilitators Miriam Dean QC Liz Riversdale, Catapult

Covid-19 Vaccination – Q&A for Employers

 Webinar

The New Zealand government has released its plan for rolling out COVID-19 Vaccinations to the NZ population.

Vaccinations are an important measure for controlling and preventing the spread of COVID-19, and will therefore need to be a part of employment policies and health and safety risk management plans throughout NZ businesses. This raises various considerations. Join us for a facilitated panel discussion on COVID Vaccination and the workplace during which experts will discuss these issues from an employment law, health and safety and union perspective and provide insights as to how to tackle them. The panel will answer FAQs around vaccination.

CPD 1 hr

Learning outcomes: •

•

Find out more about employment and human rights law issues and options for shaping your workplace strategy regarding vaccination, including whether vaccination can be mandatory in the workplace.

Learn more about the PCBUs duty to eliminate or minimise health and safety risks, key considerations in managing the risk of workplace transmission, and questions about the management of people who are vaccinated and those that are not.

Cradle to Grave™ Conference 2021 Christchurch | Auckland The interface between trust, property and family law. Early Bird offer available until 17 April 2021.

Topics: Keynote Address: Problems in Succession Law and Options for Reform; Memoranda of Wishes; Section 182 Family Proceedings Act: Are the floodgates still open?; Conveyancing Pot Pourri; Family Property Disputes: The Best Route to Resolution; Trust Information Requests and Trustee Decisionmaking: Practical Suggestions from a Litigator’s Perspective; Focus on Trustees: Beneficiaries’ Rights to Information & Beddoe Orders; Spotlight on the Role of Attorney: EPAs – A Practical Focus; Trust Accounting; Trust Issues for Migrants to New Zealand Presenters: Nicola Peart, Professor Emerita; Helen McQueen, Deputy President, Te Aka, Matua o te Ture | Law Commission; Anthony Grant, Barrister, Paladin Chambers; Amanda Bradley, Partner, Duncan Cotterill; Vicki Ammundsen, Director, Vicki Ammundsen Trust Law Limited; Brian Carter, Barrister, Bastion Chambers; Andrew Steele, Barrister, Princes Chambers; Richard Thompson, Barrister, Vulcan Building Chambers; Chris Kelly, Consultant, Greg Kelly Law (Christchurch); Greg Kelly, Partner, Greg Kelly Law (Auckland); Theresa Donnelly, Legal Services Manager, Perpetual Guardian; Mary Joy Simpson, Partner, Hesketh Henry; Sam Bassett, Director, Moore Markhams Chartered Accountants; Denham Martin, Lawyer, Denham Martin Tax Law 12

 Fri, 16 Apr 12pm – 1pm

 Presenters Myriam Mitchell, Partner Copeland Ashcroft Peter Cranney, Partner, Oakley Moran

 Chair Kate Ashcroft, Partner Copeland Ashcroft

 Conference CPD 7 hrs

 Mon, 3 May Christchurch 8.50am – 5.10pm

 Wed, 5 May Auckland 8.50am – 5.10pm

 Chair Bill Patterson, Partner, Patterson Hopkins

LawNews Issue 9 | 1 Apr 2021

CPD in Brief Current Contractual Issues: Pre-contractual Misrepresentation

Livestream

This next seminar in the series will address the framework for analysing pre-contractual misrepresentation; what constitutes misrepresentation; the primacy of the written agreement and the judicial mindset; s 50 of the Contract and Commercial Law Act and “no representations” clauses; the significance of legal advice; and relief.

Presenters: Stephen Hunter QC, Shortland Chambers; Mike French, Director Law Undergraduate Programmes, Auckland University of Technology

Love Thy Neighbour? A guide to navigating common neighbour disputes In person | Live Stream Disputes between neighbours can escalate quickly and disproportionately. On occasion, tensions build until one neighbour explodes, like one who took a chainsaw to his neighbour’s fence. Often however, disputes make their way through our courts and tribunals, with some culminating in lengthy and costly litigation (such as in the case of Aitchison v Walmsley where a dispute over a play-fort led to 4 years of litigation). Knowing how to navigate and best resolve these often heated disputes may be beneficial to all lawyers advising clients in the area. This seminar provides a guide to navigating common neighbour disputes, in the context of recent and interesting case law, and will focus on covenants, cross-leases, rights of way, boundaries and actionable nuisances.

Presenters: Andrew Peat, Barrister; David Broadmore, Partner Buddle Findlay; Mitch Singh, Partner, Glaister Ennor; Wi Pere Mita, Manager Māori Legal Services, Community Law South Auckland Chair: Geoff Hardy, Partner, Martelli McKegg

Leading in Law – What is Leading? (Workshop 1) A series of three half-day workshops, this distilled leadership development programme provides participants with a range of practical leadership insights, behaviours and tools. Framed in contemporary leadership best-practice, where the primary role of a leader is to empower people to perform and grow, this is an engaging, sometimes challenging, leadership development experience.

Feedback from previous sessions: • Created a good initiative environment with a very good presenter who knew his topic well and was passionate about teaching other to lead.

• Thoroughly enjoyable and highly valuable.

• This really is a great course and should be encouraged right across the profession and at all levels A+.

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

Conducting Effective Client Interviews The start of virtually every lawyer-client relationship is the initial interview. It is an opportunity to identify who the client is, understand the nature of the services required, clearly establish terms of the relationship, manage client expectations, and make a sound impression. Mistakes made during the initial interview can, therefore, have a lasting impact on the relationship and even hinder a lawyer’s ability to provide effective representation. Through a combination of coaching and learn-by-doing methods, this workshop will develop the skills required for conducting effective client interviews. Attendees will learn how to structure and guide the interview process to improve efficiency, enhance rapport and minimise common mistakes.

Presenters: Dr Stephanie Mead, Barrister Sole, and Instructor, Institute of Professional Legal Studies; Seung Youn, Lawyer Public Defence Service

CPD 1.5 hrs

 Tue, 4 May 4pm – 5.30pm

 Seminar

Livestream

CPD 2 hrs

 Tue, 11 May 4pm – 6.15pm

 Workshop CPD 4 hrs

 Thu, 13 May 9am – 1.15pm

 Workshop CPD 3 hrs

 Sat, 15 May 9am – 12.15pm

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.

Cradle to Grave™ Conference 2021 Christchurch | 3 May | 8.50 am - 5.10 pm | Rydges Latimer Auckland | 5 May | 8.50 am - 5.10 pm | Ellerslie Event Centre Visit adls.org.nz for more information.

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Covid-19 Vaccination Q&A for Employers Friday 16 April | 1 CPD hour

Join us for a facilitated panel discussion on COVID Vaccination and the workplace during which a panel of experts will discuss issues from an employment law, health and safety and union perspective.

T 09 303 5278

E cpd@adls.org.nz

W adls.org.nz/cpd

TM

Cradle to Grave Conference 2021 7 CPD hours

The interface between trust, property and family law Christchurch 3 May

Auckland 5 May Proudly sponsored by

Prices:

Members $500 + GST | Non-members $610 + GST Early Bird offer available for bookings made by 17 April 2021.

T 09 303 5278

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E cpd@adls.org.nz

W adls.org.nz/cpd

LawNews Issue 9 | 1 Apr 2021

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

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

Miimetua KOTEKA, Late of 24 Penion Drive, Ormiston, Auckland, aged 52 (died 15’02’21) Sunita LAISENI (aka Sunita Palu LAISENI), Late of 107 Hyperion Drive, Randwick Park, Auckland, process worker, aged 55 (died 07’10’11) Toa LAISENI, Late of 107 Hyperion Drive, Randwick Park, Auckland, housewife, aged 54 (died 09’07’18)

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 ranges from $150 – $300 per week plus gst. No long-term commitment required.

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

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

Scott Tamarakei MATTHEWS, Late of 32 Fruitvale Road, New Lynn, Auckland, civil engineer, aged 36 (died 08’02’21) Marie Bernadette QUINN, Late of 5/28 Victoria Avenue, Remuera, Auckland, widow, financial and investment planner, aged 86 (died 17’02’21) Verna Mavis WARETINI (aka Verna Mavis KAPA-WARETINI), Late of 54 Wellesley Road, Mangere Bridge, Auckland, aged 69 (died 15’04’04) Kam Keung YAM, Late of 28 Ripon Crescent, Meadowbank, Auckland, printer, aged 71 (died 10’07’19)

Barrister Wanted A centrally located Chambers has a vacancy for a barrister to share resources with 6 other collegial barristers.

Handily situated in an historic building in Vulcan Lane, you are steps away from major transport links and restaurants and in close proximity to the courts & many of New Zealand’s corporate offices.

As well as a spacious office, other facilities include: a Boardroom, library, kitchen, shower and access to all technology. An onsite Office Manager is also available. Very reasonable rates are on offer to the right candidate.

All enquiries to eden@vulcanbuilding.co.nz / 09 300 1253

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Chancery Chambers offices for rent

E tū SOLICITOR Auckland Full-Time E tū is New Zealand’s largest private-sector union. We represent, organise and campaign across Aotearoa New Zealand to empower working people and our communities for a better life. We are committed to Te Tiriti o Waitangi.

This rewarding role involves contributing to the strength of E tū by providing legal and industrial support to E tū staff and members.

We currently have a full-time vacancy for an E tū Solicitor based in Auckland.

Two offices are available in the heritage Chancery Chambers building on the corner of Chancery and O’Connell Streets.

There is a 33.71sqm office on the third floor of the O’Connell Street side of building and a 5.75sqm office on the fifth floor of the Chancery Street side of building.

Opex includes reception to greet clients/receive couriers, kitchen facilities, copy room access and use of shared meeting rooms.

Please contact Krystal Marshall on (09) 303 5277 or krystal.marshall@adls.org.nz for more information

This role requires a person who is a qualified lawyer with energy and commitment to social justice principles and the union movement.

Depending on applicants, the role will be appointed at a junior or intermediate level, and is covered by an E tū Employees Collective Agreement.

The person appointed will work in a small internal legal team, in liaison with external legal counsel, providing legal services including advice, analysis and representation to advance the strategies of the union.

Applicants must be self-motivated and able to work independently within a dynamic team.

A current full NZ driver’s licence, computer literacy and excellent verbal and written communication skills are required.

For further information about E tū please visit our website www.etu.nz.

For a job description, please contact: lorraine.cunningham@etu.nz To apply, please send your CV along with a covering letter by 5.00pm, Friday 30 April to: Lorraine Cunningham lorraine.cunningham@etu.nz.

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

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