YLC Advocate Spring 2012

Advocate Spring 2012

INSIDE THIS ISSUE:

Oktoberfest Duncan Webb on Barry Hart American torts of privacy Tikanga and criminal law

The quarterly magazine of the Young Lawyers’ Committee Wellington

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YLC Advocate Spring 2012 04

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Editors’ Note

Case Note: R v Mason – Maria Bagnall

Oktoberfest event

Upcoming events

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Convenor’s Note

Human Rights Lawyers Association information evening

08 The YLC Team 09 YLC member profile: Tell-all with Tim the Treasurer 10 Justiciability: Lessons from the South Pacific – Martien Duis 13 ASB Effective Networking event 14

Experiences as a Pegasus Scholar – Jacqueline Lean 31

20 Torts of privacy: what can we learn from America?

– Tim Cochrane

YLC Submission on the NZCLE Review of Professional Legal Studies

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Meet the Judiciary event

Reflections on a Pegasus Scholarship in New Zealand: My Top Five Reasons Why You Should Apply – Katrina Yates

24 The “MixedOwnership Model”: what is the Government really selling?

– Richard Hoare

The sorry saga of Barry Hart – Dr Duncan Webb

Editors:

Lizzie Chan & Hamish McQueen

Contributors: Maria

Bagnall, Tim Cochrane, Martien Duis, Richard Hoare, Jacqueline Lean, Dr Duncan Webb, Katrina Yates

Layout:

Rebecca Walthall

Cover photograph by Rebecca Walthall Natalie Siefe Photography

SPRING 2012 03

Editors’ Note The days are getting longer, the weather’s getting warmer, and there’s a nagging thought in the back of your mind that you’d better get onto your Christmas shopping… it must be time for the Spring edition of Advocate!

With summer just around the corner and the new year getting seriously close we have been reflecting about the year that has passed. Twentytwelve has been a big year for both of us: our first year out of university and our first year working, a move to a new city, graduation and profs. Many of you have probably experienced some combination of those changes and experiences in your own lives in the past year or so.

Adjusting to the rhythms of working life can be a particularly big shift for many young lawyers, and the YLC has been working throughout the year to make life easier for all of you. Events like the Welcome to 2012 BBQ, Young Lawyers’ Ball, Comedy Debate, and Oktoberfest were a great way to meet other young lawyers over a glass or two and kept us sane during the working year. This year the YLC has also made a big push to help young lawyers develop professional skills through events such as the Toolbox Seminar, Wellness Seminar and Effective Networking event. The YLC has put on a record number of events this year, and we hope that you enjoyed them — we sure did!

Looking back at earlier issues of Advocate from this year the magazine seems to keep growing in size — and this issue is no exception! One of our aims for Advocate this year was to showcase serious legal writing by young lawyers on current issues. Over the last three editions of Advocate, we’ve been able to offer young lawyers’ perspectives on a range of topical issues such as the review of the Mixed Member Proportional voting system, trust busting mechanisms, Māori and the criminal justice system and the issue of consent in sexual cases involving HIV. We hope that Advocate will become known as a valuable source for legal opinions on current topics.

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In this issue there is commentary on three recent cases.

Dr Duncan Webb, former Legal Complaints Review Officer, shares his views on the sorry saga of the Barry Hart. Tim Cochrane comments on American torts of privacy in light of C v Holland. Maria Bagnall examines the relationship between tikanga Māori and the criminal law in light of the recent case of R v Mason. Plus there are articles on topical events. Martien Duis contemplates what lessons the drafters of a New Zealand written constitution could draw from our neighbours in the South Pacific. Richard Hoare questions the extent to which the Government’s control of state-owned enterprises will really change under their proposed sale. Finally Jacqueline Lean and Katrina Yates, both barristers from the United Kingdom visiting Wellington on Pegasus Scholarships, share with us their thoughts on the differences they have observed about legal practice in the United Kingdom and New Zealand.

As always we have photos and reviews from the latest YLC events. YLC’s inaugural Oktoberfest event was extremely popular: young lawyers dressed in traditional German garb enjoyed matched Tuatara craft beers and foods. The Effective Networking seminar discussed how we can get the most out of the events we attend, and provided practical tips about how to network well. The Meet the Judiciary evening was a great success, with young lawyers able to mix and mingle with some of New Zealand’s leading judges, picking up some advocacy tips along the way.

The YLC has also been involved in projects that encompass the wider legal profession. We have put together a submission on the NZCLE’s review of profs — a topic that is dear to the hearts of all young lawyers. Plus many of our members have been involved in promoting the es-

What a year! Clockwise from top left: Young Professionals’ Ball, Quiz Night, Oktoberfest, Grad Cruise

tablishment of the Human Rights Lawyers Association in Wellington, an exciting initiative which aims to create a network of human rights lawyers throughout New Zealand.

For more check out the YLC website, and make sure to join our facebook page (www.facebook.com/younglawyerscommittee) to keep up to date with the latest YLC activities.

What would you like to see included in the YLC Advocate?

We also thank the YLC’s general sponsors: the Medical Assurance Society and JLegal. Thanks also to Rebecca Walthall our designer for the great work that she has done on this issue (as well as taking the cover photo) — and on Advocate throughout the year!

We’d love to hear any feedback about the magazine — especially from potential contributors! So please get in touch at elizabeth.chan@justice.govt.nz or hamish.mcqueen@justice.govt.nz.

LIZZIE CHAN AND HAMISH MCQUEEN

Upcoming Events

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MAY

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AUG

SEP

OCT

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DEC

Young Lawyers and Accountants Sports event MAS Basics of Investment seminar Welcome to 2013 BBQ Grad Cruise Meet the Registry

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Convenor’s Note It is with considerable surprise that I find myself writing my second convenor’s note for Advocate. I’m not surprised that I’m still here, but surprised that I’ve seemingly stepped through time and space without registering the passing of the last three months.

Stopping to reflect on what the YLC has crammed into three short months gives some explanation as to why the time has flown.

Continuing the progress we made earlier this year, we’ve spent the winter and spring months focusing on our professional development and representative roles. It has been a fairly educative season and it has been inspiring to see committee members stepping up and making a mark on the region’s — and the country’s — profession.

Of particular note was the Human Rights Lawyers Association (HRLA) information evening run by Lizzie Chan, Jess Willis and Natalie Pierce. The response was so strong that the number of RSVPs had us concerned there wouldn’t be enough standing room; but there was, just. I understand that the follow-up response has been strong and will set a strong basis for the HRLA in years to come.

The other highlight has been working with Tim Cochrane and Lizzie Chan on the YLC’s submission to the New Zealand Council of Legal Education’s Review of the Professional Legal Studies Course (see page 31 for more information about the Review and submission). It is obviously an issue on which young lawyers have a uniquely immediate and first-hand experience. A wide range of participants filled in a comprehensive survey on Profs.

The experiences of those who contributed to the survey differed widely but by and large supported our initial suspicions that there was general dissatisfaction with the Profs course.

During the survey we were approached and asked whether the survey could be shared with other YLC groups throughout the country to increase its scope and use to the Review. The Waikato and Bay of Plenty YLC came to the party with a number of members participating and we hope that they will also be putting forward a submission. A huge thank you needs to go to Tim and Lizzie who gave up a huge amount of time to trawl through the masses of information collected and reduce that to a comprehensive yet in-depth report on the experiences of young lawyers in the Profs course. The draft submission is (at the time of writing) presently out for consultation with our membership, after which it will be submitted to the New Zealand Law Society for input into the Law Society’s final submission to the working group. We look forward to seeing the final form of the Law Society’s submission and hope that the working group results in real change to the Profs course.

On a personal note, perusing the responses to the survey gave me a real sense of the experiences of young lawyers across the profession. From my perspective, coming from a very small, private practice firm, it was enlightening to see the level of similarities, as opposed to the differences, experienced by young lawyers working in different environs.

Given the amount of work that the committee has put in the last few months, I think everyone will be more than ready for their summer break!

JAMIE GRANT

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Have you got something you’d like to say?

The Young Lawyers’ Committee is the voice of young lawyers in Wellington.

We meet regularly with the New Zealand Law Society to represent the views and interests of young lawyers on issues affecting the legal profession. Our role is not only to entertain and inform you, but to advocate on your behalf.

If you have any issues, concerns or complaints, or anything you’d like to let us know about, email our convenor in confidence at info@younglawyers.co.nz.

If you want to join the YLC as a committee member, send us an email at info@younglawyers.co.nz.

SPRING 2012 07

Committee Members Amberley James

Hamish McQueen

Jordan Williams

Lorraine Hercus

Sarah Hoffman

Annabel Martin

Heléna Cook

Katherine Leslie

Matthew Jenkins

Sarah Watson

Daniel Fielding

Helen Arathimos

Katie Mortimer

Natalie Pierce

Simon Wilson

Elizabeth Chan

Ian Miller

Katie Williams

Pearl Roy

Tim Cochrane

Guy Carter

Jamie Grant

Katrina Kelly

Richard Evans

Hadleigh Pedler

Jess Willis

Kerrin Eckersley

Sarah Backhouse

YLC Executive 2012 Convenor

Jamie Grant

Sponsorship Officers

Co-Deputy Convenors

Heléna Cook Pearl Roy

Guy Carter Sarah Watson

Marketing Officers

Treasurer

Tim Cochrane

Jordan Williams Sarah Backhouse

Secretary

Lorraine Hercus

Communications Officer

Simon Wilson

Magazine Editors

Elizabeth Chan Hamish McQueen

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Tell-all with Tim the Treasurer Hi Tim! What’s your role on the YLC? Hi Advocate! Lovely to see you, as always. I’m the Treasurer of the YLC — I really treasure the role.

What’s your favourite xkcd comic? Why? Wow, tough question. I definitely don’t have a favourite, but I recommend xkcd to all. I have a soft spot for 276 — “Fixed Width”. Check it out:

How and when did you get involved?

I began on the YLC near the end of 2010, when my colleague Emily was the Convenor. I soon began writing notes for the meetings, and from there my role grew.

What’s your day job?

I’m a solicitor at Kensington Swan practising public law and civil litigation and saving the world.

Describe yourself in three words.

Enthusiastic, inquisitive, and determined.

We hear you’re the youngest of four boys. Do you think birth order has shaped your personality? Why/why not?

It’s hard to isolate the influence of any one particular factor on personality! Having older brothers has, at least, made me optimistic and focused — I can look at their successes and know what I’m capable of achieving.

What’s the best place to get coffee in Wellington?

Memphis Belle! Mm, chemex …

If you were stuck on a deserted island and you could only bring one song with you, what would it be?

Does it have to be a song? Can it be an audiobook? If it’s a song, either Bob Dylan’s Hurricane, or the complete recording of the Phantom of the Opera (the CD we had growing up was one continuous track).

If you could bring a famous dead person back to life for dinner, who would it be?

Wittgenstein — although I’d love to host a dinner party with him, Jesus, Nietzsche, and a host of other (mostly formerly dead) guests. Catering would be tough though…

What will you name your firstborn? Why? That’s a secret!

Any famous last words?

Thanks for coming to the Ball, and see ya’ll next year!

SPRING 2012 09

Justiciability: Lessons from the South Pacific MARTIEN DUIS IS AN ADVISOR, LEGAL RESEARCH AT THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT The views expressed in this article are not those of the Ministry of Business, Innovation and Employment.

A non-justiciable issue is one that is not amenable to judicial adjudication. Such an issue is one where there is no legal yardstick against which to measure it or where it would be constitutionally inappropriate for the courts to determine it.1 It is uncontroversial that the governor-general’s exercise of his or her political discretions, including the appointment of ministers and the summoning, prorogation and dissolution of Parliament, is non-justiciable. However, with the possibility that these powers may find themselves enumerated in a written constitution in the future, this article looks to the South Pacific experience to suggest that continuing non-justiciability should not be taken for granted.

The South Pacific Lesson

Implications of the South Pacific Lesson

Many South Pacific countries inherited a governance system based on the Westminster model. However, they also have written constitutions that set out processes and powers that in New Zealand are left largely to unenforceable convention to define. South Pacific courts have recognised this process of enumeration as itself being a change from the Westminster system, with the Fijian Court of Appeal stating that that country’s Constitution marks a shift “from parliamentary to constitutional sovereignty”.2 The supremacy of the constitution means that courts will adjudicate on matters where necessary to give effect to the constitution and have, for example, been willing to examine proceedings in Parliament that would be clearly non-justiciable in New Zealand.3

Consider art 37(3) of the Cook Islands Constitution. This provides that the queen’s representative — the equivalent of the New Zealand governor-general — may dissolve Parliament if advised to do so by the prime minister, but is not obliged to act on this advice unless the queen’s representative is satisfied that the prime minister commands the confidence of Parliament. In other words, the queen’s representative has discretion, not only in making the substantive decision of whether Parliament should be dissolved, but also as to whether or not they have jurisdiction to make that determination. Could this jurisdictional discretion, as to whether the prime minister has the confidence of Parliament, be subject to judicial review?

Another interesting feature of this process is that many South Pacific constitutions have confined deliberately the discretion available to a head of state. In two cases, the Courts of Appeal of Fiji and Solomon Islands reacted to earlier judgments that invoked the need for the relevant head of state to have a wide discretionary power to act in a crisis. Both courts overruled the earlier decision.

Instead, they focused on the provisions of the relevant constitution itself and each court concluded that the drafters of the constitution intended to provide as much certainty as possible as to when the head of state could exercise their powers — a reaction to the relatively uncertain ambit of the “reserve powers” under the Westminster system.4 In New Zealand these powers — to dismiss the prime minister and summon Parliament — would be non-justiciable, due largely to their breadth and political content. Yet if the intention of the relevant constitution is to confine the discretion afforded to the head of state, then it arguably undermines a key reason for considering the exercise of such powers to be non-justiciable.

It is currently extremely difficult to predict whether a South Pacific court would engage in review of a political discretion, and on what grounds, as there has been no systematic analysis of justiciability in these jurisdictions. However, conspicuously absent are consistently emphatic judicial statements that the exercise of such powers is non-justiciable. So what might the lessons gleaned from South Pacific jurisdictions above mean for whether the jurisdictional decision of the Cook Islands queen’s representative can be subject to judicial review?

Consider the following points: The Cook Islands Constitution limits the discretion afforded to the queen’s representative, with art 5(1) imposing a duty to act on advice unless the Constitution specifies otherwise. While the queen’s representative making their determination as to whether they are satisfied that the prime minister commands the confidence of Parliament is one of the situations where they do not act on advice, the general tenor of the Constitution is to limit

Curtis v Minister of Defence [2002] 2 NZLR 744 (CA) at [27].

Qarase v Bainimarama [2009] FJCA 9, [2009] 3 LRC 614 at [78].

3 See, for example Kipalan v National Parliament Supreme Court of Justice Papua New Guinea SC OS NO 3 of 2003, 31 March 2004.

4 Qarase v Bainimarama, above n 2; Prime Minister v Governor-General CA Solomon Islands Civil Appeal Case No 14 of 1998, 1 September 1999.

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discretion. It undermines, therefore, one of the bases for such a power to be non-justiciable in New Zealand.

Article 37(3) seeks to ensure that a prime minister facing imminent defeat on the floor of Parliament cannot escape its verdict simply by appealing pre-emptively to the electorate — the queen’s representative is not set up as the arbiter of whether an election is needed. If a determination of the queen’s representative that they are not satisfied that a prime minister has the confidence of Parliament is non-justiciable, this purpose — that the prime minister is entitled generally to a dissolution — could be subverted. Imagine that the prime minister has just won a vote of confidence by a significant margin in Parliament.

Imagine the prime minister meets the queen’s representative immediately to advise that Parliament be dissolved.

Imagine then that the queen’s representative announces that they are not satisfied that the prime minister commands the confidence of Parliament and, further, that they then refuse to dissolve Parliament. It cannot be the case that the Cook Islands Constitution gives the queen’s representative the ability to determine their own jurisdiction free from judicial review. Judicial review is necessary to give effect to the Constitution, especially given that there is no mechanism for the queen’s representative to be removed from office.

Other, more traditional, determinants of justiciability are also relevant. Article 37(3) aims to prevent a prime minister escaping the adverse judgment of Parliament by appealing pre-emptively to the electorate. Otherwise, the prime minister is entitled to a dissolution. Thus, while a prime minister does not have a right to a dissolution, they have a legitimate expectation of a favourable result.

This supports review of the determination of the queen’s representative on the ground of procedural impropriety.

If the queen’s representative is considering making a

determination that they are not satisfied that the prime minister has the confidence of Parliament, natural justice may mean that the queen’s representative must put that view and supporting information to the prime minister for comment.

There is no reason why a court is not suited to reviewing this decision. The issue is narrow — whether the queen’s representative is satisfied that the prime minister commands the confidence of Parliament. Resolving it does not involve matters of policy but the weighing of factual evidence. This may involve political judgment, but the narrow scope of the issue is such that the court can ensure that the determination was made appropriately, through the grounds of illegality and irrationality. The narrow question also provides a legal yardstick.

Why does this matter?

New Zealand does not generally look to South Pacific authority for legal guidance. Yet these countries have a valuable lesson to teach us. Many of them inherited the Westminster system of government and attempted to encapsulate that in a written constitution. They have found that the flexibility of New Zealand’s largely unwritten system has been removed to quite an extent. Although this area of law is not well developed in the South Pacific, there is potential for courts to undertake judicial review of a political discretion of the head of state — something unheard of in this country. Those who would draft a future New Zealand constitution would do well to consider justiciability implications.

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ASB Effective networking event On September 13, with the generous support of ASB and Kensington Swan, the YLC in conjunction with the New Zealand Law Society hosted presenter Laurie Sharp in a seminar on “Effective Networking”. Laurie discussed how young lawyers can get the most out of the events that we attend and the importance of building networks early on in our careers. He set out to address common mistakes of an inexperienced networker, namely a lack of preparation and merely attending instead of planning to get the most out of an event.

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aurie split everyone into smaller groups to brainstorm what we should do before, during, and after any networking event. The feedback from the groups highlighted how simple things can vastly improve what you get out of an event. Key tips included taking some time to research who is attending, bringing business cards, and having an easy “exit strategy” such as a drink that is only one-third full.

Feedback from the event was excellent, and the fact that a number of people stayed around for over an hour to chat and get through the delicious catering funded by ASB, was a testament to the event’s success. We’ve also heard that there have been several follow-up “networking-esque” events with people who met at the seminar!

Simply Legal has become JLegal!

Since 1 October 2012, Simply Legal has become JLegal. New Zealand is the most recent addition to the JLegal brand, which already has offices in London, Dubai, Hong Kong, Singapore, Melbourne and Sydney.

In late 2011, JLegal approached the director of Simply Legal in New Zealand, Damian Hanna, with the proposal to rebrand as JLegal and to expand the service provided by Simply Legal.

Simply Legal had previously worked with different partners in various overseas jurisdictions. Although this arrangement worked well in some markets, it did not work so well in others. Damian was convinced that

joining JLegal, a single agency with global coverage, would allow Simply Legal to better assist New Zealand lawyers seeking work overseas.

Damian says, “There are a lot of agencies out there who say that they have global coverage but there are very few who actually have offices on the ground in the jurisdictions where lawyers want to move to. The JLegal Model of having a presence and local expertise in the major legal centres in the world seems to be the best and only for an agency, which specialises in international legal recruitment, to operate.”

JLegal New Zealand will continue to place lawyers within the local market. It will also be able to provide local clients with candidates sourced by the other JLegal offices for those hard-to-fill vacancies. For New Zealand lawyers wishing to move overseas, JLegal offers the most extensive global coverage and market knowledge for any New Zealand-based legal recruitment agency. For a confidential discussion about your career options, please contact Damian on (04) 499 5949 or email damian.hanna@jlegal.com.

SPRING 2012 13

The sorry saga of Barry Hart The sorry saga of Barry Hart’s fall from grace is increasingly well-known. The former criminal defence barrister was recently struck off by the Lawyers and Conveyancers Disciplinary Tribunal after being found guilty of three charges of misconduct (Auckland Standards Committee No 1 v Hart (currently under appeal)1). The three charges of misconduct related to the failure to pay the fees of an expert he retained, a refusal to disclose a file to the Standards Committee, and the gross overcharging of a client.

DR DUNCAN WEBB IS A PARTNER AT LANE NEAVE. HE WAS FORMERLY PROFESSOR OF LAW AT THE UNIVERSITY OF CANTERBURY AND WAS RECENTLY THE LEGAL COMPLAINTS REVIEW OFFICER

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hile each of the three findings of misconduct are of interest in their own right, the really striking matter (and one which also flows into the later decision on penalty) is the manner in which Mr Hart dealt with the Law Society, Standards Committee and Tribunal.

The decision opens by noting that the fixture at which the matter was determined was the fifth that had been scheduled (in fact the Tribunal later corrected itself — it was the fourth). Mr Hart did not attend the hearing and his counsel attended only to seek an adjournment. Mr Hart had produced affidavit evidence, but his witnesses were not available to be cross-examined — which resulted in a number of adverse credibility findings. The Tribunal concluded that “Mr Hart did not intend to engage in these proceedings.” This was the approach of Mr Hart throughout. The effect of this strategy was to ensure that any sympathy that the Tribunal may have had for Mr Hart and his predicament evaporated.

Expert fees The first complaint related to the failure of Mr Hart to pay the fees of an expert he retained. The case was legally aided and it was argued that the expert had understood that he would only be paid if the Legal Services Agency agreed to fund him. The Tribunal found that this was not

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credible and that “Mr Hart was cavalier in his professional responsibility to this [expert] complainant and in doing so brings the profession into disrepute” and that (although at the lower end) this amounted to the serious professional wrong of misconduct.

This is surprising. Disagreements about the payment of professional fees are not unknown. A failure to pay such a third party is widely regarded as bad form, but would not usually be considered to reach the threshold of “disgraceful or dishonourable” conduct or a “wilful or reckless contravention” (as set out in s 7 of the Lawyers and Conveyancers Act 2006 (LACA)) such as to warrant a finding of misconduct.

While Mr Hart may have been cavalier (he ultimately paid the expert on the “steps” of the Disputes Tribunal) on first blush it would appear to answer more to a description of “unacceptable”, “unprofessional” or “conduct unbecoming” and therefore amounting to unsatisfactory conduct under s 12 of the LACA. The very stern approach of the Tribunal can only be explained in part by the uncooperative approach of Mr Hart and the conclusion that the same obstructive approach was taken by him to his dealings with third parties.

Auckland Standards Committee No 1 v Hart [2012] NZLCDT 20; Auckland Standards Committee No 1 v Hart [2012] NZLCDT 26 (decision on penalty).

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Obstruction of the inquiry The second charge alleged obstruction of a Law Society inquiry. It related to a failure by Mr Hart to cooperate in respect of a costs complaint made in 2006. The underlying costs complaint was ultimately settled between Mr Hart and the former client (who was advised by a new lawyer). However the Complaints Committee that had been considering the complaint resolved to continue the inquiry (as it was entitled to) even though the complainant no longer sought to pursue the complaint.

Mr Hart was informed of the decision of the Committee to inquire into the complaint and a response (and, it appears, his file) was sought from him in May 2008.

Delays and excuses ensued for many months until the Committee (presumably in exasperation) issued a formal notice to produce the file in November. Further delays and extensions of time occurred until the Committee indicated that the final date for compliance was 13 March 2009. This did not occur. That non-compliance itself became the subject of an inquiry and ultimately this proceeding.

The finding that it was misconduct for Mr Hart to fail to comply with the lawful requirement of the Committee that he produce his file is unsurprising. Under s 7 of the current Act a “wilful or reckless” failure to comply with

the Act is explicitly stated to be misconduct. The decision of the Tribunal leaves little doubt that it viewed this conduct as not only wilful, but also intentionally obstructive (which is also an offence under s 262 of the LACA). What is of particular interest are the further comments of the Tribunal that lawyers are required to take a cooperative approach to disciplinary proceedings.

In any case where a lawyer’s conduct is under scrutiny by the professional body there is a strategic decision to be made (which is the same as that in many other regulatory contexts). Namely, is the best final outcome most likely to result from an approach of engagement and cooperation, or from a more adversarial approach. The Tribunal appeared to be of the view that the latter approach was not one that could legitimately be taken by a lawyer. I do not agree.

It is right that the Law Society and its Standards Committees have broad powers of inquiry which include the right to require a lawyer to provide an explanation in person (s 141) and to demand the production of documents of all kinds (s 147). This amounts to an absence of any privilege not to give evidence which might be prejudicial (incriminating would be the usual but ill-fitting term — the privilege against genuinely incriminating > evidence will still exist).

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flickr user s_falkow

> It is therefore clearly correct to say (as Cooper J did in Parlane v New Zealand Law Society2) that legal practitioners owe a duty to comply with any lawful requirement made under the Act. However it may go too far to say (as the Judge also did) that there is also “a duty to act in a professional, candid and straightforward way in dealing with the Society and its representatives”. While a lawyer may not deceive or obstruct an inquiry, to suggest that there is a positive duty of cooperation appears to go too far.

The Tribunal also cited authority to the effect that a lawyer whose conduct is being inquired into must “inform and assist” the inquiry and must not “lie by and engage in a battle of tactics”. However those authorities need to be viewed with caution. The powers of inquiry are comprehensively set out in the LACA and need not be supplemented by a vague and far reaching duty on a lawyer to assist in their own demise.

While it may be appropriate for the Tribunal to take into account the conduct of the lawyer’s defence in considering if any “credit” should be given when considering penalty, it cannot be a professional wrong of itself for a lawyer to seek to use the procedural techniques available to advantage themselves. It is for the body of inquiry (or the prosecution before the Tribunal) to resist such a strategy and to ensure the matter is properly and expeditiously disposed of.

Grossly excessive costs The third charge which was found to be proved was one of gross overcharging, which is expressly stated to amount to misconduct under s 7 of the LACA. Some $35,000.00 was charged in three tranches for bail matters and name suppression. The Tribunal concluded that a reasonable fee would not have exceeded $16,000.00.

The Tribunal did not think it necessary to consider whether Mr Hart was dishonest in charging the fees.

While clearly of the view that some of the time allegedly 2

spent in preparation and reviewing material was substantially more than might reasonably be needed, the focus was on the fact that given the work done and the identity of the parties who actually undertook it (a large part of the work was undertaken by junior lawyers) the bill was objectively excessive and grossly so.

This is a welcome approach to grossly excessive costs and one which avoids the trap of asking whether the costs were at such a level as to make them fraudulent or requiring some dishonesty on the part of the lawyer. While dishonest or fraudulent fees would clearly amount to misconduct, a more holistic approach was taken.

In the present case other factors supported the finding of misconduct in respect of the charging. This included the fact that much of the work was undertaken by junior lawyers; Mr Hart failed to give any clear guidance as to the likely level of costs; and some attendances appeared to be wholly needless (such as six hours of attendances in respect of a three minute court appearance). Also central was the fact that the level of fees was abusive of the lawyer-client relationship. The client was a young man charged with a serious offence. His family was unfamiliar with legal processes and sought financial support from family overseas.

In such a case it is clear that a lawyer is not free to charge whatever the client will pay. The lawyer, in setting the fee must have “regard to the interests of both client and lawyer” (r 9). In this case the clear conclusion was that the charging by Mr Hart had been opportunistic. He took advantage of a naïve and vulnerable client. This, in conjunction with the excessive level of charging, meant that the threshold of misconduct had been reached.

This decision is a lesson in how not to deal with the Tribunal. This is further borne out in the penalty decision. While the day of reckoning may have been deferred for many years, ultimately Mr Hart may have avoided the worst consequences of his actions had a quite different approach been taken to these complaints.

Parlane v New Zealand Law Society HC Hamilton CIV-2010-419-1209, 20 December 2010 at [108].

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Case Note: R v Mason In the recently decided case of R v Mason it was argued that a parallel system of tikanga Maori (customary law) exists within the criminal justice system in New Zealand.1 Similar arguments in previous cases have been consistently rejected, a practice which has become so common that the courts have begun to order costs against the parties relying on them. What distinguished this case, however, was the acceptance from the outset by Mr Mason that Parliament had an ability to pass legislation that could remove the availability of a tikanga approach.

MARIA BAGNALL IS A SOLICITOR AT JOHN MILLER LAW

Facts In the early hours of the morning Mr Mason broke into the house of his former fiancée and her mother. He stabbed them both repeatedly, killing the mother. Before pleading guilty he applied for a ruling from the High Court on the issue of tikanga Māori.

Issues It was argued for Mr Mason that tikanga Māori could only be extinguished with Māori consent under express and clear statutory language. As this consent had not been obtained, tikanga Māori continued to operate as a source of law in its own right.

For this argument to succeed, Heath J considered that Mr Mason needed to prove two distinct propositions.

First, that a parallel system of tikanga Māori had existed around the time of the Declaration of Independence 1835 and the Treaty of Waitangi 1840 and secondly, that this system continues to exist today.

In addressing the first issue, Heath J relied on established precedent and expert evidence to answer in the affirmative. However, in addressing the second, the Judge determined that the combined effect of ss 5 and 9 of the Crimes Act 1961 was to extinguish tikanga Māori.

Heath J also went on to note the fact that the application of customary law was precluded by statute did not exclude the possibility that elements of it could play a meaningful role in criminal proceedings, namely in the sentencing process.

Analysis This judgment provided a unique evaluation given the approach taken by Mr Mason with regards to the acceptance that Parliament could extinguish tikanga Māori rights with the use of “express, clear and plain” language.

Section 9 of the Crimes Act eliminates common law offences as well any offence against the United Kingdom

Parliament. The wording of this section suggests that it was drafted for this specific purpose only. It does not appear to “expressly” or “clearly” eliminate a parallel system based on customary law within New Zealand.

However as Heath J observes, when applying the reasoning of Ngati Apa v Attorney-General, it can easily be implied that the combined effect of these sections is to create an exhaustive code of criminal offences in New Zealand.2 In relation to subs 5(1), Adams on Criminal Law explains that an important constitutional aspect of this subsection is that it is contrary to law to try a person for a criminal offence by a method or procedure other than that laid down in the Crimes Act. So although Mr Mason’s argument regarding express and clear language was valid, the Judge found support for his ultimate conclusion that tikanga Māori cannot apply in statute.

Perhaps a more important aspect of the judgment is the analysis of the issue of incorporating tikanga Māori into sentencing. Heath J had qualified his ultimate conclusion in regards to the sentencing of Mr Mason by noting that customary law could only be accommodated within the existing criminal law framework, and that the law must be administered to society as a whole. The analysis by Heath J makes for a thought-provoking comparison with the recent Canadian Supreme Court decision in R v Ipeelee, which reaffirmed the importance of taking into account the aboriginal circumstances of the offender in all contexts of sentencing.3 The end result in Mason is in line with the extensive existing authority on the subject, but provides an interesting perspective on a contentious issue. It is hoped that Heath J’s discussion of the importance of tikanga Māori in the sentencing process will encourage New Zealand judges to consider the importance of cultural factors in sentencing indigenous offenders. For example, judges could further embrace the factors outlined in ss 7 and 8 of the Sentencing Act 2002, which require the Court to take into account the offender’s whanau, community and cultural background in sentencing, as well as promoting culturally-appropriate rehabilitative options such as restorative justice.

R v Mason [2012] NZHC 1361. gati Apa v Attorney-General [2003] 3 NZLR 643 (CA) at [34] per Elias CJ and [185] per Tipping J. In this case both Elias CJ and Tipping J N considered that pre-existing customary rights could be extinguished either “by express words or at least by necessary implication”.

3 R v Ipeelee 2012 SCC 13.

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Harnessing Human Rights in Wellington In the winter edition of Advocate, we heard from Kris Gledhill about the New Zealand Centre for Human Rights Law, Policy and Practice and the recently launched Aotearoa Human Rights Lawyers Association (HRLA). On 25 September the Young Lawyers’ Committee, with the generous support of DLA Phillips Fox, hosted the HRLA information evening. The aim of the evening was to provide the legal and wider community with information on the HRLA, its principles and focus, and to stimulate discussion about the possibilities for contribution to the HRLA by Wellington practitioners.

The speakers, Kris Gledhill, Andrew Butler, David Rutherford and Adam Holloway delivered interesting and engaging presentations. The breadth and depth of their experience, both individually and collectively, clearly demonstrate the benefits that can be gleaned from a structured and collaborative approach to human rights and public interest law initiatives in New Zealand.

Adam Holloway is a Senior Associate at DLA Phillips Fox. He is a civil litigator and public law advisor. He also helps to run the firm’s pro bono programme and sits on the boards of the Multicultural Services Centre and English Language Partners Wellington. Adam provided preliminary remarks on behalf of DLA Phillips Fox. Kris Gledhill is the inaugural Director of the New Zealand Centre for Human Rights Law, Policy and Practice, based at the University of Auckland. He has expertise in appellate criminal and public law practice

and has represented clients before the European Court of Human Rights. Kris provided a useful insight into the work of the HRLA, from undertaking academic research and contributing to the New Zealand Human Rights blog to shadow reporting to United Nations treaty bodies and promoting human rights projects and internships.

Andrew Butler is a member of the Human Rights Centre advisory board. He is a partner at Russell McVeagh and is a leading authority in public law, human rights protection and judicial review. Andrew provided meaningful insight into the role of lawyers, including their role as part of a legal system based on the rule of law. In the latter respect, Andrew reflected on and gave meaning to the fundamental obligations of lawyers as provided in s 4 of the Lawyers and Conveyancers Act 2006. His address served as a useful reminder of the value that lawyers from across the profession can add to the human rights endeavour.

David Rutherford is New Zealand’s Chief Human Rights Commissioner. Prior to taking on this role, he was the managing director of Special Olympics Asia Pacific.

He was the Chief Executive of the New Zealand Rugby Union and has worked as a sport and commercial lawyer at Bell Gully, Gibson Sheat and Goodmans (Toronto).

David has held senior executive roles at Fletcher Challenge and Wrightson and lectured in sports law at Victoria University. David’s presentation reinforced the rights and freedoms that were fought for during World War Two and the human rights obligations that arise as a result. He provided insights into the human rights challenges faced by New Zealanders in the wake of the Christchurch earthquakes. He emphasised the need for lawyers, public sector officials, and others to involve people with lived experience of human rights issues in the work they undertake.

The panel members engaged in a constructive question and answer session following the main presentations.

The event was well-attended, with over 100 advocates, students, and lawyers from across the profession. The level of attendance, as well as the nature of the discussions during the course of the evening, highlights the interest in advancing a more structured and principled approach to human rights work at the regional and national levels.

Scoping work is currently underway to determine the available models and foci of a human rights network in Wellington. If you are interested in learning more about the HRLA, visit www.hrla.org.nz.

If you would like to know more about the possibilities for human rights work in Wellington, get in touch via email at membership@hrla.org.nz.

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SPRING 2012 19

Torts of privacy: what can we learn from America?

TIM COCHRANE IS A SOLICITOR AT KENSINGTON SWAN

With the release of C v Holland New Zealand now has two distinct torts relating to privacy.1 The tort in Holland, intrusion upon seclusion, complements the tort of public disclosure of private facts recognised by the Court of Appeal in Hosking v Runting.2 Much of the inspiration for these torts comes from the United States, where four long-standing privacy-related torts are available. After briefly discussing Holland, this article considers whether New Zealand courts may adopt these further torts.

C v Holland Much has already been written about Holland.3 Mr Holland installed a hidden camera in the bathroom of his flat, and recorded and stored two videos of a female flatmate. These videos were discovered and given to the police. Mr Holland was charged with making an intimate video recording, ordered to pay $1,000 in emotional harm reparation, and discharged without conviction.

Subsequently, the female flatmate, “C”, brought a civil proceeding for damages against Mr Holland and was successful because Whata J recognised a tort of intrusion upon seclusion in New Zealand law and held that it applied in the circumstances.

As is made clear from Holland and Hosking, New Zealand’s primary sources for tortious remedies for breaches of privacy come from North American rather than United Kingdom or Australian case law.4 For instance, Canadian law has also very recently recognised the tort of intrusion upon seclusion.5 In the United States, meanwhile, this tort and three other privacy torts, including the tort

of public disclosure of private facts, are long-established and have been applied (in a variety of forms) throughout the various states.6 Given the focus on United States law in New Zealand in this area, and in particular the recognition of two of the United States’ four privacy torts, it is worth considering whether the remaining two torts may be applied in New Zealand in the future.

Privacy torts in the United States Privacy torts in the United States initially developed haphazardly. However, in 1960 William Prosser summarised over 300 reported American cases on privacy and argued that, together, these cases established the existence of four discrete torts.7 His articulation was later adopted by the Restatement (Second) of Torts (1977), a text widely followed in the United States.8

C v Holland [2012] NZHC 2155.

Hosking v Runting [2005] 1 NZLR 1 (CA) (Hosking (CA)).

3 See for example, Nicholai C Anderson “Give me space: a new tort of intrusion upon seclusion” NZLawyer (online ed, New Zealand, 21 September 2012); Tom Turton “New privacy law protects against intrusion into privacy” NZLawyer extra (online ed, 29 September 2012); Caitlin Wilson and Daniel Nilsson “C v Holland — a peeping and prying tort in New Zealand” NZLawyer (online ed, New Zealand, 5 October 2012); Steven Price “Privacy — crafting a new remedy” NZLawyer (online ed, New Zealand, 5 October 2012); and Simon Connell “Intrusion upon seclusion” [2012] NZLJ 315.

4 The United Kingdom and Australian jurisdictions do not recognise a tort of privacy generally, let alone a tort of intrusion upon seclusion, as discussed in Holland at [49]–[61].

5 An intrusion-based privacy tort was recently recognised in Jones v Tsige 2012 ONCA 32, as discussed in Holland at [62]–[64].

6 Law Commission Invasion of Privacy: Penalties and Remedies (NZLC IP17, 2010) at [4.6] and [4.8] (Law Commission report).

7 William L Prosser “Privacy” (1960) 48 Cal L Rev 383.

8 American Law Institute Restatement of the Law of Torts (2nd ed, 1977) at §652.

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The relevant section of the Restatement reads: 2. T he right of privacy is invaded by (a) unreasonable intrusion upon the seclusion of another; or (b) appropriation of the other’s name or likeness; or (c) u nreasonable publicity given to the other’s private life; or (d) publicity that unreasonably places the other in a false light before the public.

Both Hosking and Holland referred to the above section as an accurate summary of the American position.9 As these cases demonstrate, (a) and (c) are now recognised torts in New Zealand. The remainder of this article will outline (b) and (d) and discuss the limited judicial comment on these two torts in New Zealand.

Appropriation of another’s name or likeness First, the tort of appropriation of another’s name or likeness protects a plaintiff’s identity. It is available where a person uses another person’s name or likeness for their own benefit. As the New Zealand Law Commission recognised in its review of privacy laws, the appropriation tort not only “protects a plaintiff’s dignitary interests, and provides a remedy for mental distress, it can also be viewed as protecting something in the nature of a property right”. In some jurisdictions, it takes the form of a “right to publicity”.10 The applicability of this tort in New Zealand was rejected by the Court of Appeal in Hosking. However, no extensive reasons were given by the Court as to why this specific tort should not apply in New Zealand. This may be be-

cause the cause of action was only pleaded at trial in the Court of Appeal, and not pleaded at all in the High Court.11 As a result, in an original proceeding at least, Hosking appears to stand in the way of successfully establishing appropriation as a cause of action for breach of privacy. However, parties attempting to plead this tort are not without hope. For one, the rejection of this tort in Hosking has been subject to criticism. Commentary has noted that this area is “overdue for greater recognition” in New Zealand and that a separate tort may be appropriate, despite the Court of Appeal’s express rejection of it.12 Furthermore, the potential value of this tort was earlier recognised by the High Court in Tot Toys v Mitchell (a case not cited in Hosking).13 This proceeding concerned the passing-off of a toy known as the “Kiwi Bee” which was “indistinguishable” from the beloved New Zealand toy Buzzy Bee.14 Fisher J stated in an obiter comment that “[f]ew would dispute that real persons should generally have the right to prevent the unauthorised promotional use of their person”. He went on to suggest that “[t]here may be a case for going beyond existing causes of action — >

See Holland at [13] and Hosking (CA) at [66].

Law Commission report at [4.17]–[4.18].

11 Hosking (CA) at [17] and [171]. This tort was not a cause of action in the High Court proceeding: see Hosking v Runting [2003] 3 NZLR 385 (HC) at [137].

12 Clive Elliot Electronic Business and Technology Law (NZ) (online looseleaf ed, LexisNexis) at [8.11].

13 Tot Toys v Mitchell [1993] 1 NZLR 325 (HC).

14 As Fisher J commented at [3] of Mitchell, the Buzzy Bee is “a noisy, highly coloured, bee oscillating its wings in a determined attempt at levitation” which is “highly popular with children and, one suspects, their parents”.

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> defamation, confidentiality, contract and passing off in its less controversial form — to North American causes of action for appropriation of personality and/or breach of rights of privacy and publicity”.

Placing another in a false light Secondly, the tort of placing another in a false light involves publicising a matter about someone else which is false, where the person doing the publicising knows or is reckless as to whether the matter is false or not, and where this publicity is misleading about the other person in a way that would reasonably be viewed as being highly offensive. The Law Commission commented in its review that foreign courts have also applied this tort to matters which, although “technically true, create a false impression in the absence of other explanatory facts and circumstances”.15 Helpfully, this tort was considered in Bradley v Wingnut Films (a case approved in Hosking).16 Wingnut concerned a claim brought by a family who were upset that a tombstone of theirs featured in a “splatter film” scene filmed at Karori Cemetery in Wellington. One of their causes of action was described as the tort of “publicity which places the plaintiff in a false light in the public eye”. In explaining this tort, the High Court gave as an example a plaintiff whose photo is used on a book jacket to promote a book that the plaintiff had no reasonable connection with in circumstances giving rise to the “implication” that such a connection exists. This cause of action was dismissed in Wingnut on the basis that no such implication existed in the circumstances – no one would reasonably believe that the family was associated with the film.

It is important to recognise that this tort is different to the tort of defamation. Gallen J referred to this possible confusion in Wingnut,17 and this point was echoed by the Law Commission in its review.18 While defamation protects reputation, this tort protects “the right to be left alone” and provides remedies for humiliation, distress, and other forms of mental distress, which would not be available as a remedy for defamation.

Where to from here?

As the Law Commission has warned, care should be taken in drawing lessons from the United States, given “the different constitutional framework and social climate”.19 The Court of Appeal has similarly noted that the American experience “is of real value, but it must be considered in its full context”.20 Bearing these cautionary points in mind, this article has shown that these torts may have application in New Zealand in the appropriate circumstances. However, a party may need to be willing to venture to the Court of Appeal to secure a remedy on the basis of the tort of appropriation, given the rejection of this tort in Hosking.

Finally, we should recognise, as the Chief Justice noted in 2008, that the full extent to which tort law provides remedies for breaches of privacy in New Zealand has not yet been established.21 This point is shown by Holland. This decision also justifies the Law Commission’s recommendation in 2011 that the development of torts of privacy in New Zealand should be left to the common law.22 This remains true: whether either of these two further tortious remedies is appropriate in New Zealand should remain a question for consideration by the courts in an appropriate proceeding with the benefit of full pleadings and all relevant evidence.

Law Commission report at [4.15] and [4.16].

Bradley v Wingnut Films [1993] 1 NZLR 415 (HC).

17 At 425.

18 Law Commission report at [4.16].

19 Law Commission report at [4.25].

20 Hosking (CA) at [66].

21 Rogers v Television New Zealand Ltd [2007] NZSC 91, [2008] 2 NZLR 277 at [23] per Elias CJ. 22 Law Commission report at [7.13] and [7.18].

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Meet the Judiciary On 1 November the YLC in conjunction with the New Zealand Law Society hosted a Meet the Judiciary event.

Young lawyers were invited to mix and mingle with some of New Zealand’s top judges in an informal atmosphere.

In attendance were Chambers and Glazebrook JJ from the Supreme Court; Arnold, Ellen France and Wild JJ from the Court of Appeal; and Dobson and Kós JJ from the High Court.

The event started with the judges chatting and getting to know the young lawyers over nibbles and wine. There was then a brief pause in the socialising while the audience heard from Jamie Grant, the YLC Convenor, and Mark Wilton, the Wellington Branch President, before some short speeches from three of the judges. Glazebrook J drew on her recent appointment to the Supreme Court to talk about the differences in the role of the Supreme Court and Court of Appeal. Arnold J provided the young lawyers present with some great advocacy tips — emphasising the need for all advocates to have a clear theory of their case and the importance of not antagonising judges. Kós J talked about the pleasure he gains from the varied work that comes with judging, and entertained the audience with anecdotes from his experiences as a judge.

The event was a great success, with about 50 young lawyers taking the opportunity to meet some of New Zealand’s finest legal minds. It was great to see both senior and junior members of the legal profession mixing in such a convivial atmosphere, and a real testament to the judges who gave up their time to assist with the professional development of Wellington’s young lawyers.

Many thanks to the Law Society for its generous provision of the venue and catering for the event, and to Sarah Hoffman, Hamish McQueen and Lizzie Chan for helping to organise the event. The YLC looks forward to organising similar events in the future.

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The “Mixed-Ownership Model”: what is the Government really selling?

The National Government is proposing to remove a number of state-owned enterprises (SOEs) from the State-Owned Enterprises Act 1986 (SOE Act), and then sell up to 49 per cent of the shares in those entities on the open market via the NZX.

RICHARD HOARE IS A SOLICITOR IN KENSINGTON SWAN’S CORPORATE AND COMMERCIAL TEAM

T

he Government’s decision to sell SOEs has been polarising and controversial. It was a key point of difference between the parties in the last election. There is a healthy “anti-asset sales” movement collecting signatures in a neighbourhood near you. There are Treaty of Waitangi issues. And if you are an investor, you’ve probably been inundated with communications from your broker about the “opportunities” this SOE sell-down presents.

Despite this, and despite a truckload of media reports and editorials on the subject, a fundamental question seems to continually be glossed over or misunderstood: what is the Government actually proposing to sell?

This question should really be the foundation on which any debate on the topic rests. This is because to have an informed debate on the merits of the proposed sell down, there needs to be an understanding of either the:

• f orecasted financial consequences (not the focus of this article); or • forecasted changes to the control or management of the assets.

Most media or “dinner party” discussions to date have seemed to centre on an assessment of the financial benefits or detriments, or a perceived “change in control” of the SOEs’ assets and the way those assets are managed.

The aim of this article is not to argue for or against the mixed-ownership model. Rather, it is to establish a clear understanding of what is for sale, and what selling up to 49 per cent of the shares in asset-owning companies could mean for the way those companies are managed and controlled.

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What is for sale?

Shares in the following SOEs are intended for sale: • M ighty River Power (a hydro and geothermal energy generator); • Genesis Energy (a thermal energy generator); • Meridian (a hydro and wind energy generator); and • Solid Energy ( a coal supplier and coal-seam gas extractor).

Together these companies are referred to in this article as SOEs. (The Government is also proposing to further selldown its stake in Air New Zealand — our national airline is already listed on the NZX.) The key assets held by these SOEs are New Zealand’s energy generation and delivery capabilities.

The first common misconception that arises in mixedownership model debates is that the actual assets illustrated below, which are owned by the SOEs, are being sold or partially sold. This is incorrect.

workersparty.org.nz

The “state assets” the Government is proposing to sell are shares in asset-owning companies, not the assets owned by those companies.

What is the legal nature of a share? A share in a company is a type of intangible personal property. A share can be described as a bundle of rights that a holder enjoys in relation to a company. The rights attaching to a share can have almost endless variations, however the “ordinary” rights that attach to a share are: • a right to vote on a matter reserved for shareholders; • a right to share equally in any distributed income of the company (ordinarily achieved by the company issuing a “dividend”); and • a right to share equally in the surplus assets of a company once that company is wound up and all prior ranking claims have been satisfied.

Ownership of a share in a company does not confer any legal or equitable rights in the assets of that company.

The property and other rights of a company are those of the company alone, and not of the shareholders. This is a fundamental tenet of companies law.

By selling up to 49 per cent of its shares in the SOEs, the Government will surrender its position as sole shareholder in the SOEs and 49 per cent of its voting and distribution rights, as well as introduce a variety of new shareholders who will together hold that 49 per cent. The Government will retain 51 per cent of the voting rights, and a right to share in 51 per cent of any dividends issued by the SOEs or 51 per cent of the surplus assets of the SOEs should the SOEs ever be wound up.

What does this mean for control?

There are two material changes to the control rights of the Government as a result of the mixed-ownership model: The SOEs will be removed from the ambit of the SOE Act. The Government will cede its sole ownership position, and become the holder of a bare majority of shares. >

SPRING 2012 25

workersparty.org.nz

> Removal from the SOE Act

The first change that will occur, if the mixed-ownership model proceeds, is that the SOEs will be removed from the ambit of the SOE Act. The control and management of the SOEs will (for all intents and purposes), become governed only by the general companies law and the NZX Listing Rules. The SOE Act provides that a principal objective of an SOE is to be “as profitable and efficient” as comparable privately-owned businesses. However, the SOE Act does provide for certain “civic-minded” principles which will cease to directly apply. These include: • a statutory objective to be a good employer; • a statutory objective to exhibit a sense of social responsibility and have regard to the interests of the community in which it operates; and • a direct statutory ability for the Government to direct an SOE to undertake “non-commercial” activities, funded by the Government.

The mixed-ownership model will not affect the Government’s right to exercise the key control mechanism available to shareholders.

The Government will control the composition of the board and will have the ability to influence the course of the SOEs accordingly.

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So, the act of removing the SOEs from the ambit of the SOE Act will change some of the legal obligations of those SOEs. The SOE could still strive to operate in accordance with the objectives set out above, but any actions will ultimately need to be justifiable as being “in the best interests of the company”, which will now include a more diverse set of stakeholders (including private interests).

As such, the single act of removing the SOEs from the ambit of the SOE Act will reduce the ability of the Government to “control” the management of the key assets.

Sole shareholder to bare majority holder The next way in which the Government potentially changes the “control” of these assets is by reducing its ownership stake from 100 per cent to 51 per cent. So, the question becomes, what can a 100 per cent shareholder achieve that a 51 per cent shareholder cannot?

Shareholders do not actively manage a company. It is another fundamental tenet of companies law in New Zealand that the business and affairs of a company must be managed by, or under the direction or supervision of, the board of the company. Shareholders have no actual authority or right to act for the company in the management of its business.

Shareholders derive their ability to “control” a company by having the right, by exercise of a majority of votes, to: • a ppoint or remove directors to manage the company; and • appoint an auditor, whose role is to review the financial records of the company to confirm that management is presenting an accurate and compliant financial position to shareholders.

flickr user dailysublime

So from a legal perspective, the mixed-ownership model will not affect the Government’s right to exercise the key control mechanism available to shareholders. The Government will control the composition of the board and will have the ability to influence the course of the SOEs accordingly. This is why a 51 per cent stake is commonly referred to as a “controlling interest”.

Other rights exercisable by the Government with its 51 per cent shareholding would be the right to approve certain non-pro rata share issues (under both the Companies Act 1993 and the NZX Listing Rules), “material transactions” with related parties, as well as transactions that, under the NZX Listing Rules, involve a value of more than half the company’s market capitalisation (the market value of its shares, in aggregate) or that would change “the essential nature of the business” of the company.

From a companies law perspective, the key function that the Government cedes by reducing to a 51 per cent stake is its ability to pass special resolutions (a resolution passed by a 75 per cent vote of shareholders entitled to vote and voting on a question) unilaterally, or provide unanimous assent to certain corporate actions. Matters that cannot be undertaken by a company without the approval of shareholders by special resolution include: • a dopting or amending a company constitution; • approving a major transaction (a transaction with a value greater than 50 per cent of the company’s assets); • approving an amalgamation; and • placing the company in liquidation.

These matters are less an issue of “control”, but a protection of certain shareholder rights where the board of a company seeks to take decisive actions.

What can we conclude about control?

There will be a lessening of Government control over the SOEs as a result of the mixed-ownership model.

Removal from the SOE Act can be viewed as a significant alteration of the legal objectives of the SOEs. And a lessening of the Government stake from 100 per cent to 51 per cent will prevent the Government from unilaterally approving certain types of actions. In addition, new private sector interests will be introduced as stakeholders in the company, and the directors of the SOEs will need to identify and serve those interests when considering what is “in the best interests of the company”.

However, in a legal sense, the Government retains the key control mechanisms available to shareholders under companies law. A board of directors, whose role under the SOE Act regime and under general companies law is to manage and direct the business and affairs of a company, can be hand-picked by the Government if it chooses, and removed by the Government if it chooses.

This gives the Government a strong ability to influence the management of the SOEs. In the end, it can be argued that the current position (SOEs governed by the SOE Act and wholly-owned by the Government) and the position that will apply under the mixed-ownership model is materially the same: the Government has a similar indirect legal ability to control the management of the SOEs, and the manner in which the assets those SOEs own are operated.

However, whether the Government chooses to exercise those legal rights to protect the interests of the public (which may not always align, or be perceived to align, with the interests of newly introduced private investors) has been, and will continue to be, a question of politics.

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Oktoberfest This October, in homage to Munich’s Oktoberfest, the YLC treated 50 young Wellingtonians to a spectacular evening of local craft beer and sumptuous food.

A “bevy” of beer connoisseurs arrived at Meow cafe/bar on 11 October, inconspicuously dressed in traditional German garb, to taste the wares of the legendary Tuatara Brewery. The evening got off to a great start thanks to our wonderful host, the renowned Wellington beer writer Neil Miller, who delighted guests with his intricate knowledge of all things brewed (including some outrageous stories of “death by beer”). Beer and banter quickly flowed in abundance.

Guests enjoyed four rounds of magnificently matched craft beers and foods, ranging from an Indian Pale Ale matched with Cured Beef Crostinis, pinot aioli and braised red cabbage, to a traditional English Porter matched with home-made, sweet balsamic dark chocolates. Following the tasting, Meow threw its doors open to the public, and those who missed out on the tastings came and revelled in some cheap Tuatara pints, some fantastic company, and some foot-stomping, thigh-slapping German oompah music! A great time was had by all.

Big thanks must go to Tuatara, Meow and Neil, for all their support on the evening. Thanks also to Simon Wilson, Ian Miller and Katie Mortimer, for all their efforts in helping to organise such a successful event.

Can’t wait to see you all again next year — Prost!

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Jacqueline Lean: Experiences as a Pegasus Scholar Having been aware of the Pegasus scheme since I was called to the Bar in 2007, I was delighted to be awarded a scholarship earlier this year to undertake a placement in Wellington. In setting off from Heathrow, I had anticipated two months of observing the New Zealand legal system in action and watching great advocates on their feet. What I hadn’t expected was that the warmth and friendliness of the reception I received would result in the loss of the ability to say “no”. Specifically, when Lizzie asked me if I would write an article for the YLC on the differences I had observed between practice in the United Kingdom and New Zealand.

JACQUELINE LEAN IS A BARRISTER OF GRAY’S INN PRACTISING FROM LANDMARK CHAMBERS, LONDON, AND A PEGASUS SCHOLAR AT THORNDON CHAMBERS SEPT/OCT 2012

With the express caveat that two months makes me at best an only partially-informed observer (always a dangerous basis for counsel to work on), here goes …

Whilst there are clearly a number of similarities between practice in the United Kingdom and in New Zealand, there are also notable differences. Four things in particular have stood out for me: (1) the fusion of the profession, and route to the Bar; (2) the absence of a leave requirement in judicial review proceedings; (3) how human rights arguments are advanced and considered; and (4) the more generous standing provisions in respect of planning (i.e. Resource Management Act 1991) proceedings.

In the United Kingdom, the split between barristers and solicitors occurs after the qualifying law degree.1 Whilst it is possible for a practising solicitor to be a “barrister” (in the sense of having been called to the Bar) it is not, as yet, possible to practise in both capacities. In terms of the Bar, after Bar exams and a one-year pupillage (akin to an apprenticeship — or a year-long interview process!) you are then qualified to practice as a barrister sole and, essentially, let loose on your own.

From the perspective of someone who has been through that process, the major advantage is that you are, effectively from day one, responsible for your own cases and on your feet in court on a regular basis. Whilst something of a baptism of fire, from the relatively advantaged position of four years in, I can see that the experience gained from knocking round the lower courts for the last couple of years was invaluable — and excellent preparation for dealing with more complex or high profile cases with more at stake, and with ever more penetrating (and occasionally unexpected) questions from the bench!

On the other hand, the opportunities to work on larger cases (or to see them through to conclusion) are probably more limited for a junior barrister in the United Kingdom — depending on client finance, the preferences of instructing solicitors and/or the more senior counsel on the case. There is also much to be said for the efficiency of having one (or two) individuals taking a case through to its conclusion (especially from the client’s perspective) without having to instruct a barrister for the final stage. At a time when “Alternative Business Structures”2 are being actively explored, and developed, in the United Kingdom, further recourse to the New Zealand model may provide some useful food for thought.

The other differences are, in essence, more of procedure than substance!

At the current time, defending renewed applications for permission to judicially review a decision of a public body makes up a fair proportion of my court work.3 As such, it was somewhat surprising to realise that a claim for judicial review does not have to pass that initial hurdle in New Zealand!

Similarly, since the commencement of the Human Rights Act 1998 (UK), “human rights” arguments have become a staple of public law proceedings. These arguments often found a claim rather than an argument run in support of an alleged wrong. See, by way of example, s 84 of the Nationality Immigration and Asylum Act 2002 (UK) which expressly provides as a ground of appeal against an immigration detention “that the decision is unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant’s Convention rights”. It was somewhat unexpected, therefore, to realise at the Human Rights Lawyers Association (Wellington) pre-launch event in October 2012, that that step had not, as yet, been taken in statutory appeal processes in New Zealand, and to appreciate the work that was ongoing

This can be a three year undergraduate degree, a two year degree following an earlier BSc/BA, or a one year law conversion course (again after a non-law degree).

2 Often referred to as “Tesco Law”.

3 In England, applications for permission to apply for judicial review are usually considered on the papers first. If permission is refused, then the claimant may apply to renew the application, which will be dealt with at an oral hearing.

4 Check out the interview with Kris Gledhill, the inaugural director of the New Zealand Centre for Human Rights Law, Policy and Practice in the Winter edition of Advocate.

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to provide a similar form of entrenchment for the rights protected by the Bill of Rights, and other instruments.4 On the other side of the coin, it appears that standing requirements for challenges to, or active participation in, Resource Management Act decisions are significantly more relaxed than in the United Kingdom,5 and the funding provisions seem comparatively generous ­— for example, in terms of the availability of legal aid for appeals to the Environment Court. Interestingly though, there are some indications that the New Zealand approach to participation in the process may be becoming more restrictive — for example, through increasing use of orders for security for costs. In contrast, in the United Kingdom there is arguably a shift in the other direction, due in no small part to the right of public participation in environmental decision making enshrined in the Aarhus Convention.6 This is demonstrated, among other things, by the increase in protective costs orders in cases rais-

ing “environmental matters”.7 Again, with the United Kingdom planning system once more under review, closer consideration of the New Zealand regime may well provide some useful comparators.

By way of conclusion, I have very much enjoyed my two months here in Wellington, and would strongly encourage anyone even vaguely thinking of applying for a Pegasus Scholarship to do so. As a wise (and eminent) jurist once wrote: “It can be useful to remember that there is a common law world elsewhere which may provide some help, particularly on issues where English law is not yet settled.”8 And it may even be that English law may still provide some assistance in return…

I n England and Wales, only the applicant for planning permission has a right of appeal on the merits of a local authority’s decision as to whether to grant planning permission, and there are restrictions on the parties which may participate in such an appeal — although members of the public are welcome to attend, make representations in writing, and make a short statement in support of/against the appeal towards the end of the process. Any challenge to a grant of permission is by way of judicial review, and subject to relatively rigorous standing requirements.

6 The United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters.

7 These effectively cap the amount one party may be liable to pay in respect of the other side’s costs in the event of not succeeding in its claim.

8 Delaware Mansions Ltd v Westminster City Council [2001] UKHL 55 at [35] per Lord Cooke.

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YLC Submission on the NZCLE Review of Professional Legal Studies The YLC would like to thank all those who filled in our survey on Profs, sent out in October. This survey related to a review being undertaken by the recently retired Supreme Court Justice, Sir Andrew Tipping, on behalf of the New Zealand Council of Legal Education. The YLC prepared a submission to the New Zealand Law Society (NZLS) on this review to ensure that the voices of young lawyers were taken into account as part of the NZLS’s submission to Sir Andrew.

Over 100 young lawyers contributed to our survey. This demonstrates the importance that young lawyers place on this review, and allowed the YLC to prepare a thoughtful and provoking submission to the NZLS. Our submission focused on particular aspects of how Profs is taught and what is taught as part of Profs.

Congratulations to Amelia Bleeker and Annika Voulgaris, the winners of our two $50 Kirkaldie and Stains vouchers! Thank you once again. We will update you about the results of Sir Andrew’s review in a subsequent edition of Advocate in 2013.

SPRING 2012 31

Reflections on a Pegasus Scholarship in New Zealand: My Top Five Reasons Why You Should Apply KATRINA YATES IS A BARRISTER WHO WAS CALLED TO THE BAR BY LINCOLN’S INN IN 2006, AND PRACTISES FROM LANDMARK CHAMBERS IN LONDON. SHE UNDERTOOK A PEGASUS SCHOLARSHIP FROM OCTOBER TO DECEMBER 2011 WITH THE NATURAL RESOURCES TEAM AT CROWN LAW IN WELLINGTON.

For the uninitiated, the Pegasus Trust was established in 1987 by the Inner Temple in England, with the general aim of building links between common law jurisdictions across the world.

What has resulted from that vision is a unique exchange programme, which enables “gifted young lawyers … to learn about the practical working of the Common Law system in countries other than their own, and to form enduring links with lawyers in those countries” (Lord Goff of Chieveley, Senior Law Lord, 1996–1998). I don’t know about the “gifted” part, but it is certainly a testament to the value of the exchange scheme that exactly one year after my placement with Crown Law, I am still in touch with many of the lawyers with whom I worked and socialised, and for that reason I have been invited to offer some reflections on my experiences.

So, here are my top five reasons why I am, to this day, delighted that I embarked on a Pegasus Scholarship, and why I would encourage all keen young lawyers in New Zealand to apply for a reciprocal placement in England: 1. A unique insight into law and culture The Pegasus Scholarship provides a rare opportunity to access a different culture and learn about the law’s place within it. The most extraordinary example I encountered was observing the trial in the case of Proprietors of Wakatū v Attorney-General 1. This experience enabled me not only to learn a great deal about the Treaty of Waitangi, Māori culture, and the system of Crown grants, but also to witness classic principles of trust law being applied in the context of important historical events. The arguments as to certainty of subject-matter and objects, intention, the rule against perpetuities and limitation were some of the most fascinating and well-made that I have encountered in my career, which were made all more interesting by the cultural significance of the case.

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Proprietors of Wakatu- v Attorney-General [2012] NZHC 1461.

2. Testing your adaptability There is nothing quite as beneficial as working outside of your comfort zone, and a Pegasus Scholarship provides a unique opportunity to do just that. And so it was with a mix of trepidation and eagerness that I assisted Crown Law in preparing submissions for an appeal to the Supreme Court of New Zealand. The case straddled the boundaries of my usual practice in England, combining elements of both land law and environmental law, but I really had to go back to basics in terms of the law: not one principle could be assumed. The task required me to find my way around unfamiliar legislation and also to teach myself property law, New Zealand style. Talk about hitting the ground running! But once I was over the initial shock, it was immensely satisfying to prove to myself that I could get on top of the new material and produce draft submissions, which did not have to be torn to shreds during peer review.

3. A fresh perspective on your own way of working When you have learned all that you know about law in one place, it is all too easy to become mired in a particular working style, and to approach your profession in only one way. It is by stepping outside of the familiar, and into a related, but distinct, environment that you can achieve greater clarity. This is where a Pegasus Scholarship, again, comes into its own. I learned so many tips simply by working with lawyers who had trained in a different way.

As a barrister in England and Wales, the “split” profession has afforded me the luxury of being able to focus on honing my advocacy skills, without having to worry about exclusively solicitors’ responsibilities, such as filing applications at court, writing client care letters and engaging in party-to-party correspondence. However, I suspect that the wider responsibilities imposed upon a lawyer working in a fused profession explains the

Singing with the Crown Law Choir.

particularly functional and practical approach I generally encountered in New Zealand. This was observable in written advocacy of high quality, which was often couched in more direct terms than you sometimes find in England and Wales, and also in creative advocacy techniques. At a hearing of the Environment Court, opening submissions based upon a tabulated summary of technical acoustic evidence, to my eyes and ears, was a fresh and more useful alternative to a traditional speech. These experiences have enriched and invigorated the way I approach my work at home.

Paragliding above Coronet Peak, near Queenstown.

It was immensely satisfying to prove to myself that I could get on top of the new material and produce draft submissions, which did not have to be torn to shreds during peer review.

4. A fresh perspective on your own legal system It is obvious that every legal system has its own strengths and weaknesses, but it is most instructive to see those differences in action. In terms of legislation, I think New Zealand has often proven itself to be ahead of the curve: the cohesive attempt at environmental protection under the Resource Management Act 1991, when compared to the more piecemeal approach in England and Wales, is a case in point. We simply don’t have a direct equivalent of the Environment Court at home, where environmental issues are litigated in a variety of forums from planning inquiries heard by Government-appointed Inspectors, to hearings before Magistrates’ Courts (similar to the District Courts in New Zealand). It seems obviously sensible for that kind of dispute to be heard by specialist judges and expert commissioners.

One area of particular interest to me was the progress that has been made in New Zealand by the use of mediation in environmental disputes. While mediation resolves many commercial and family disputes in England and Wales, it does not yet play a significant part in environmental litigation. By contrast, it seems that the liberal standing rules and third party rights of appeal of the Environment Court have maximised public participation in environmental regulation, whilst enabling issues to be tackled fairly and more efficiently at multi-party mediations. As a scholar it was enlightening to observe such a

mediation and to witness the achievements of a radically different system for myself. I now understand why England might increasingly need to look to New Zealand for guidance on this topic in the future.

5. Socialising, leisure and travel Happily, it was not all work during my trip. I have lost count of the times that my colleagues invited me out for coffee, drinks, dinners and functions. Two particular high points were performing with the Crown Law choir at a charity concert, and attending a reception at the Supreme Court, hosted by Justice McGrath and the judge’s clerks. Any free time was spent gleefully exploring the many treasures New Zealand has to offer, from kayaking in the Marlborough Sounds, to paragliding near Queenstown, and wine-tasting in Martinborough. I can’t promise quite such dramatic scenery for incoming scholars to the United Kingdom, but we can “hold our own”, and no Pegasus Scholarship would be complete without allowing a little time to explore.

I remain so grateful to the Pegasus Trust, and to my hosts in New Zealand, for affording me what was, undoubtedly, the opportunity of a lifetime. So please, apply, and allow us to return the favour.

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