Canterbury tales

Canterbury Westland Branch New Zealand Law Society October 2012, Vol. 18, No. 9

Canterbury tales

A baby barrister’s experienceBy Alex Millen

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13th International Criminal Law Congress

Not all work........Natalie Pearce, Bronwen Skea and Alex Millen enjoying the socialside of the conference.

I recently had the opportunity toattend the 13th InternationalCriminal Law Congress inQueenstown with the criminal barfrom here and abroad.

As a young fledgling of the independentcriminal bar here in Christchurch I quickly foundmyself overwhelmed by the calibre ofpresenters and the direct access I had to theseamazing legal minds....if I was game enough tointroduce myself.The conference started with a powhiri and anopening speech from Sir Tipene O’Regan whichimmediately set the scene for what would bean entertaining and informative few days. Achallenging notion of Sir Tipene’s speech wasthe concerning statistics relating to Maorirepresentation in our criminal justice system.Judge Heemi Taumaunu told us that Maorimake up about 16% of the New Zealandpopulation and over 40% of our prisonpopulation. These figures are also reflected inour three strikes laws, with Dr James Olesonreporting in his presentation that Maori areoverwhelmingly represented in their likelihoodto get a strike offence compared to other ethnicgroups. The question was asked, what are wedoing to address these statistics?In a very entertaining and moving address atthe final night dinner Justice Joseph Williamsacknowledged that intervention has to start inthe early stages of l ife and that thedisassociation from their own culture has ledMaori down a dark road. The notions and storiesproffered in Justice Williams speech werecertainly food for thought, especially since I wasnow part of a justice system that has helpedcreate these statistics.

Another dominant theme was the effect oftechnology and social media on our respectivecriminal justice systems.Presentations by Judge David Harvey on the‘Googling Juror’ and Judge Stein Schjolbergfrom Norway on the need for a specialistInternational Criminal Tribunal for Cybercrimehighlight the overwhelming part these issueshave come to play in everyday life.Even at the age of 25 I found myself sittingand thinking about how I had only discoveredFacebook at age 21 and my initial thoughts ofit as a fad only now to be sitting at anInternational Criminal Law Congress listeningto world experts on how we are going to dealwith the unique legal challenges social mediapresents in a modern day justice system.

I am scared to think what is next. In 30 yearstime when I am attending my 15th Congresswhat issues will we be facing then? With suchrapidly developing technology and the changingface of how people interact each day, I struggleto see how the legislature is ever going to keepup.Another interesting presentation was DameSilvia Cartwright’s speech on the CambodianCriminal Trials. They work with a civil system oflaw that starts with a lengthy investigation orpre-trial stage where full disclosure is made.There is no ability to plead guilty and if you arefound guilty a conviction is not entered untilafter the appeal process.

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President’s ColumnVino FinoPhoto Caption

The winning entry for last month’s picture(below) was submitted by Tony Greig

Each month we have a photo captioncompetition where we invite you to submit acaption. The winner will receive two bottles ofwine sponsored by Vino Fino(www.vinifinoco.nz, 188 Durham Street).Send your entry to the Canterbury WestlandBranch New Zealand Law Society, P.O. Box 565,Christchurch. Or email to canterbury-westland@lawsociety.org..nz. All entries mustbe received by November 9 2012. The winnerwill be announced in the next edition ofCanterbury Tales.

“Ahhh.......the baubles of office”.

The importance of law librariesseems to have been the focus ofLaw Society activities in the lastmonth.

As most of you know, our local NZLS libraryhas been temporarily camped in the groundfloor of the branch office at Homersham Place,Burnside. Julia de Friez and her staff have donean outstanding job continuing to servicepractitioners when all they have is a single roomwhich can only hold a skeletal selection of textsfrom the law library in the Durham Street Courtbuildings.Julia makes regular visits to the still yellow-stickered library in Durham Street to accessmaterials required by practitioners and, after ayear and a half, that extra demand on her timemust be wearing thin.I am also aware that many practitioners do nothave access to the same in-house libraryfacilities that their firm or offices might haveonce had because of space constraints in theirtemporary offices, or because they have losttheir existing collection.In short, the NZLS library is probably moreneeded now than it ever was, and yet is lessable to service practitioners than it could whenit operated in the Court buildings.With the support of Allister Davis, who isrepresenting practitioners on the JudicialReference Group (where representatives of thejudiciary are liaising with the Ministry of Justiceand other stakeholders to assist in the recoveryof the Courts post-earthquake), we have askedthe Ministry of Justice to prioritise re-establishingthe Court-based law library.However that may require some compromisein terms of space occupied, as the Ministry alsohas pressing needs for additional administrativespace. The reinstatement of the law library inthe Durham Street building also needs to awaitcompletion of remedial work in that part of thebuilding.Julia de Friez has prepared some options forenabling a core library service to resume in theCourt building while accommodating someencroachment into that area to meet theMinistry’s interim requirement for extraadministrative space. We are hopeful that oneof these options can be up and running in thefirst half of next year.At the same time, planning is proceedingquickly on the new Court facilities proposedfor the Justice and Emergency Services precinctidentified in the Christchurch Central CityRecovery Plan. As advised in my letter to theprofession, this is a facility which will servicethe profession for decades, if not centuries, tocome.As a branch Council we are trying to ensurethat, at this initial stage, account is taken ofpractitioners’ views on the necessary facilities

to be provided in the Courts. Of course, key inthis is a suitable law library facility. Pleasingly,there looks to be general agreement that thiswill be incorporated in the design for the newbuilding.Finally, the profession has taken a keen interestin changes proposed for the Law School atCanterbury University. These include therelocation of the Law Library from the LawSchool building to the James Hight LibraryTower.Students have publicly expressed their concernthat this attractive and important facility couldbe compromised by the shift.Regrettably, at least in the short to mediumterm, the library must move while repair worksare undertaken on the Law Building. The realissue then is whether the library maintains thequality of the library holdings, its highly trainedlibrary staff and extensive quiet study space,so that law students do not feel short changedand choose to study elsewhere.The university has inevitably lost students as aconsequence of the earthquakes and it isimportant to the Canterbury profession that thistrend is reversed as we benefit from having agood pool of local graduates to recruit from.As a Branch we are looking for opportunitiesto support the Law School so that it cancontinue to offer a degree that is attractivedespite necessary disruptions to Law Schoolaccommodation. This may include providingopportunities to students to do “real” legal workthrough the Community Law Centre andthrough local law firms, as part of their degree.There can be no doubt that there are unmetlegal needs in the community which could bemet, in part, by the intellectual skills of lawstudents in much the same way as theirphysical skills were utilised as volunteers in theimmediate aftermath of the earthquakes.Hopefully then, the unique experience of livingin Christchurch at this time in its history can beexploited as a positive, rather than a negative,factor in choosing where to study law.

Rachel Dunningham

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Lawyer dons gloves for St Johns

Canterbury Tales is the official newsletter ofthe Canterbury Westland Branch NewZealand Law Society.Publications Committee: Karen Feltham(editor), Brendan Callaghan, Aliza Eveleigh,Summer Pringle, Zylpha Kovacs and KateDougherty.All correspondence and photographs shouldbe forwarded to: The Branch Manager,Canterbury-Westland Branch New ZealandLaw Society, Unit 1, 8 Homersham Place,Russley, Christchurch. P. O. Box 565Christchurch.Phone 358-3147, fax 358-3148. emailcanterbury-westland@lawsociety.org.nz.Canterbury Tales is published 11 times peryear. The deadline for editorial andphotographs is the 8th of the month.Disclaimer: Canterbury Tales is published bythe Canterbury Westland Branch NewZealand Law Society. The opinions expressedherein may not necessarily be those of theBranch and have not been expresslyauthorised. The Branch accepts noresponsibility whatsoever for any error,omission or statement.

Christchurch commercial lawyerPaul Dorrance is used to having afight on his hands although it is notusually waged with his fists.

However, the Duncan Cotteril l seniorcommercial partner is now regularly donninggloves and stepping into the ring as he preparesfor the annual Fight for Christchurch corporateboxing event on November 30, to raise moneyfor selected charities in the region.Paul is fighting for St John Ambulance inChristchurch, seeking to raise substantial fundsto boost the charity’s work.St John fundraises every year to bridge theshortfall between the delivery of the ambulanceservice and government funding, said ChristinePrince, of St John South Island.“We rely on the support of the community andcorporates to also fund ambulances andmedical equipment; a fully equippedambulance costs approximately $200,000.There are, of course, additional pressures inthis region with many St John buildingsadversely affected by the quakes. We needmore resources to meet response times, withthe current level of road works and disruption.”Prince said fundraising is essential, withapproximately $30 million raised nationwideevery year. In the South Island, St John seeksto raise more than $9 million this calendar year.“Initiatives such as Fight for Christchurch are areal bonus, not only in terms of funds raised,but in the profile it brings us and the opportunityto work alongside the corporate sector.”

The benefits are mutual, according to Paul, whohas lost 5kg during his training to date, whichincludes two boxing circuits in the gym, sparringsessions with Noah Lopez, a former NewZealand boxer, and running four times a week.“It probably wouldn’t be something that I wouldhave volunteered for before the earthquakes,to be honest, but I think that I’m now moreopen to new challenges.“The dramas we have all experienced during

and since the earthquakes have been soberingexperiences and it certainly made me approachthings differently.“My three kids are really enjoying watching mesuffer! They’ve really got into it and recognizethat boxing isn’t something I would usually do.I think seeing me do something outside mycomfort zone makes any challenges they haveseem more tolerable,” Paul said. “And it is alsocool to fight in a legal law abiding way.”

Paul Dorrance, left, with Pete Cain, St John district operations manager, Canterbury.

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Case summaries (59) New Zealand’s legal research tool

Lawyers do not choose which witnesses to callat trial, instead the judges decide and they alsodo all the questioning. There are no evidentialrules as all information is admissible at theinvestigation stage and it is for the judges todecide the probative value of the evidencewhen considering a verdict.There is also no separate sentencing process,the verdict will include the sentence and thismeans that at the trial stage lawyers can makesubmissions on sentence. Dame Silvia hasbeen in Cambodia presiding over the KhmerRouge Trials since 2006 and in the current trial,as they are divided into four separate trials,there are more than 1000 witnesses and eachwitness is reported to take two to three daysto give evidence, which is then translated intothree languages. Let’s just hope none of thelawyers are being paid on fixed fees.The enormity of these trials is almostunimaginable, especially when I thought aboutthe contrast between my daily work life andDame Silvia’s. I go to the marae and enter aguilty plea to a breach of community work andDame Silvia goes to the ‘ExtraordinaryChambers’ and listens to evidence about thegenocide of an estimated 1.5 million people.How am I ever going to even attempt to bridgea career gap that huge? And do I even want

to? I put this concept to her as she sipped onher green tea, and she told me that even shehad fluffed her first court appearance and thatshe “just guessed she had been pretty luckywith the opportunities in her career”.Understatement.On a less serious note, the Congress was notwithout its shenanigans. Turns out you can out

C v Holland, Whata J, HighCourt, Christchurch, 24 August2012, [2012] NZHC 2155

TORT — PRIVACY — DAMAGES

Successful claim for breach of privacy - tort ofintrusion upon seclusion - defendant liable fordamages - covert filming - C was an occupantin a house owned by her boyfriend and thedefendant - defendant surreptitiously installeda video camera in the roof cavity above theshower and toilet - defendant made two videorecordings of C in the bathroom, showing herboth partially dressed and naked - acceptedthat recorded material was not published orviewed by another - whether the defendantintruded upon C’s solitude and seclusion andinfringed a reasonable expectation of privacy -novel claim - no New Zealand authority on tort

of intrusion upon seclusion - whether invasionof privacy by intrusion upon seclusion withoutpublicity or prospect of publicity gave rise toan actionable tort in New Zealand - UnitedStates authorities on tort of intrusion uponseclusion or solitude surveyed by the Court -New Zealand, United Kingdom, Australia andCanada law reviewed to identify arguments forand against the recognition of an intrusionbased privacy tort - trespass as element ofunlawful surveil lance considered -transformation of autonomy aspects of privacyinto rights and unwanted intrusion into a wrong,already well underway in New Zealand law -High Court identified necessary elements ofintrusion upon seclusion as : - (1) intentionaland unauthorised intrusion - ‘intentional’connotes an affirmative act, not an unwittingor simply careless intrusion - ‘unauthorised’excludes consensual and or lawfully authorisedintrusions; - (2) intrusion into seclusion(intimate personal activity, space or affairs) -not every intrusion into a private matter is

actionable - ‘intimate personal activity’acknowledges the need to establish intrusioninto matters that directly impinge on personalautonomy; - (3) intrusion involvinginfringement of a reasonable expectation ofprivacy; - (4) intrusion that is highly offensiveto a reasonable person — content of the tortmust be consistent with domestic privacy lawand principles - tort of intrusion upon seclusioncompatible with and logical adjunct to tort ofwrongful publication of private facts - privacyboundaries articulated in Hosking v Runtingapplicable where relevant - highly offensive testsets barrier to unduly sensitive litigants - HELD:tort of intrusion upon seclusion recognised aspart of New Zealand law - defendant liable forintrusion into C’s intimate personal space andactivity when he filmed her in the showerwithout her consent and otherwise withoutlegislative authority - intrusion infringed areasonable expectation of privacy and washighly offensive to the reasonable person —damages to be considered - costs reserved.

drink an Aussie (although I debatedwhether it was worth the title the nextday) and you should never challengea Silk to a karaoke competition. Also, acertain Crown Prosecutor will be ableto tell you that dancing on tables willget you kicked out of a pub, no matterhow persuasive you think yourarguments are at the time.However, none of this would havebeen possible if it were not for thegenerosity of the Canterbury Westlandbranch of the N.Z. Law Society whogave me a small grant towardsregistration, and my Pupil Masters,Michael Starling and Serina Bailey whonot only stumped up for the rest butalso gave me drinking money! Wouldnot get that at the PDS!But I leave you with a question thatwas on everyone’s mind after a

presentation by clinical psychologist SuzanneBlackwell entitled “Why we might beconcerned about wrongful acquittals inchild sexual offence trials”.Now, the presentation itself was very interestingand she raised some very valid points. HoweverI was distracted by the notion of what exactlywas a wrongful acquittal?

Continued from Page 1A baby barrister’s experience

Alex Millen, second from left, and friends take inthe sights of Queenstown.

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Details vital for EQC claimsDozens of Canterbury homeownersare having their claims with theEarthquake Commission (EQC)unnecessarily delayed because thelegal documentation provided isincomplete.This topic was first raised in Canterbury Talesearlier in the year, and EQC is again appealingto lawyers to make sure they include allnecessary information when preparingdocumentation for clients where a property withoutstanding claims is changing hands.Whenever claim settlements are to be madeto someone other than the original claimant/s, EQC needs to be advised of such changesand supplied with a Deed of Assignment (DOA)or other supporting documentation.This is typically needed when a property istransferred under a sale and purchaseagreement or an agreement under the Property(Relationships) Act 1976 or in the context ofthe administration of an estate when the ownerof a property has died.EQC’s General Manager Policy and StrategyBryan Dunne says there are currently around200 claims that cannot be settled untilcomplete evidence of assignment is providedto the Commission.“Lawyers play a key role in ensuring their clients’claims are not inadvertently delayed becauseevidence of assignment is incomplete or hasnot been supplied to EQC at all,” says MrDunne.EQC says it looked at developing arecommended DOA template, but realised thatthere are too many different scenarios for it tobe workable. Instead EQC has developed thefollowing guidance.

Evidence of assignment supplied to EQC shouldinclude:* Full names and signatures of original owner/s (assignor) and subsequent owner/s(assignee). Where there is more than oneowner or subsequent owner, all the individualsconcerned should sign.* Address of property being sold.* The date of transfer.* All EQC claim numbers that are to be assignedfor the property.* A description in detail of what is and is notbeing transferred e.g. claim numbers,earthquake events, relevant property, and theentitlement of the assignee to receive theproceeds of any claim.* Contact details of the new owners (assignee).* An explanatory note if the owner and theinsured party are different.* The nominated payee.* Agreement that the assignor will provide theassignee with any information/assistancenecessary to pursue the claim with EQC.EQC is also working with the Real EstateInstitute of New Zealand and the New ZealandBankers Association in an effort to ensureclaims where evidence of assignment isrequired are not subject to delays.If CERA is purchasing land and buildings thereare particular requirements, information aboutwhich can be obtained from CERA directly.“It is the responsibility of claimants and anyassignees to ensure that appropriatearrangements are in place for any transfer of

EQC claims, but we want to make clear whatinformation we need to administer transfers,”says Mr Dunne.EQC has created a team specifically for dealingwith claims delayed due to issues with evidenceof assignment.DOAs or other documentation supportingassignment of claims can be sent to EQCClaims, P.O Box 311, Wellington or a PDFemailed to info@eqc.govt.nzIf you need further clarification of whatinformation EQC requires as evidence ofassignment of claims, please contactinfo@eqc.govt.nz.

The Publications Committee is urgentlylooking for people to contribute articles toCanterbury Tales.If you havea an interest in a specific area oflaw, want to grumble to the editor, have aphoto of interest (past or present) then sendthem to us or make enquiries at theCanterbury-Westland Branch New ZealandLaw Society, Unit 1, 8 Homersham Street,Burnside. PO Box 565 Christchurch.Phone 358-3147, fax 358-3148 or emailcanterbury-westland@lawsociety.org.nz.

Would you liketo have a say?

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Students off to WashingtonlTwo University of Canterbury lawinterns Seamus Woods andRachael Harris will have a trip of alifetime next month when they getthe opportunity to become lawinterns on Capitol Hill, WashingtonDC.

The internship programme is jointly funded bythe University of Canterbury and theWashington based US-NZ Council and involvesan amazing programme of events geared toexpose the UC interns to the workings of theUS political system and to benefit particularmembers and committees of the US Congress.The internship programme, to foster greaterunderstanding of the American legislativesystem, was announced at the New ZealandEmbassy in Washington DC on February 22,the one-year anniversary of the 2011earthquake in Christchurch.A number of council members were inChristchurch during the Feb 22 2011earthquake and the University of Canterburywas selected to inaugurate the new internshipprogramme because the council had beeninvolved in collecting charitable donations forthe rebuilding of Christchurch.To date, the council’s American Friends ofChristchurch project has been the vehicle formore than $US5 million in donations and

$US2.7 million in pledges to Christchurch.President of the United States-New ZealandCouncil William Maroni said the US and NewZealand could learn from each other by offeringoutstanding students the opportunity toexperience first-hand the American legislativeprocess, they could promote greaterunderstanding in both nations.UC’s acting Dean and Head of Law Dr ChrisGallavin said law students from UC had played

a pivotal role in the recovery of Christchurchwith the likes of Sam Johnson and fellow lawstudents establishing the student army.“The UC School of Law has a stronginternational reputation for quality and ourstudents are of the highest calibre. They arejust the type of people Canterbury will need toassist in the rebuilding of our beautiful city,’’ DrGallavin said.“The bonds of the Christchurch and USrelationship have been strengthenedimmeasurably by the generosity of our USfriends and it is a bond that will grow fromstrength to strength in many different forms.He agreed with the comments of New ZealandAmbassador Mike Moore who said: “This is anexciting programme for both countries.“Many of these young people will go on to workin both the private and public sector, perhapseven serving in the New Zealand Parliament.This is the kind of learning experience that notonly changes lives, but strengthens friendshipbetween nations. I’m very pleased the firststudents will be from the University ofCanterbury.’’Dr Gallavin said that the experience for Woodsand Harris would be a life changing one.“To work in the US Congress immediately aftera presidential election is simply life changing. Idoubt that these students, undoubtedlyamongst the top one percent of law studentsin the country will come back to New Zealandunchanged. The opportunity is so amazing Iam actually jealous.’’The interns head to Washington DC the middleof next month and return in late January. Theywill present a paper on their experiences inlate February 2013.Story provided by the University ofCanterbury and photograph by theuniversity’s photographer Eve Welch.

Seamus Woods, Dr Chris Gallavin and Rachael Harris engage in a spot of bookwork.

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The naked foolsArthur Sandston sent through thefollowing story, which appeared inthe College House newsletter(College House is a Hall ofResidence associated with theUniversity of Canterbury). Thishumorous tale from 1993 shouldbring a smile to your face.

The 1993 Initiation Dinner took place, as usualat the beginning of the year. Present at HighTable were the Bishop, members of the Boardof Governors, BM and distinguished guests.During the meal, the House was rudelyinterrupted by a streak across the quadrangleinvolving recent alumni from the flats, andincluded both male and female streakers.Of course the House was deeply shocked andaccording to Judge David Saunders, who waspresent at the High Table and at the time wasa Crown prosecutor, all agreed that revengewas “a dish best served cold”.The streakers were duly identified and receiveda court summons under Section 27 of theSummary Offences Act 1981' for obsceneexposure within view of a public place’.The students involved were advised to take theircourt summons very seriously and upon theadvice of Christchurch lawyer Mervyn Gluepleaded guilty and prepared detailed apologiesahead of the court hearing.At the District Court, on the day of the hearing,which was incidentally the 1st of April, thestudents were advised to look carefully at thesignature on their court summons. It read U. R.Fooled.The following article appeared in The Press atthe time:Vengeance is mine sayeth the LawA group of Canterbury University studentsyesterday fell victim to an elaborate AprilFool’s Day joke concocted as revenge fortheir naked run through a formal universitydinner.The four men and five women arrived atthe Christchurch District Court expecting toanswer charges of obscene exposure.Unbeknown to the students they werebogus charges produced by a complicatedruse involving several pillars of theEstablishment.As instructed by their lawyer andChristchurch thespian Mr Mervyn Glue, whowas in on the joke, the students turned upin their Sunday best and carrying letterscontaining grovelling apologies.“I now feel a deep sense of regret for myactions and realise they may have angeredand offended people at the dinner” was atypical abject comment.As the students assembled around Mr Glue

on the court steps to receive his last gemsof advice, he suddenly feigned the discoveryof a technical defence as he ruffled throughthe papers.He pointed to the scrawled signature at thebottom of the charge sheets, which on closeexamination revealed the words “you havebeen fooled”.With another word of explanation, thestudents realised with a mixture of grief,relief, clapping and guffaws they had beenhad. One of the pranksters said the grouphad entertained some doubts because ofthe speed of the process and the date.However, the seemingly genuine handlingof each step of the proceeding hadconvinced them.The plot was the brainchild of DavidSaunders a Crown prosecutor and partnerin the firm of Raymond Donnelly.Mr Saunders, attending in his capacity as amember of the College House board ofgovernors, saw the student’s nakedtransgression at the houses initiation dinneron March 12. The guests included the Bishop

of Christchurch, the Right Rev David Coles.Mr Saunders arranged for the summons tobe drawn up, signed them appropriately,and had a process server deliver thesummons in person to the unsuspectingdefendants.Sobered by the reaction, the students wentto see the police detective listed.He had been briefed about the ruse and(off duty) told them they would be eligiblefor the police diversion scheme but asuitably dressed appearance in court wouldnevertheless be necessary.When they indicated they would beconsulting Mr Glue, the detective was ableto tip off the lawyer before they reachedhim.

Right, relieved studentsthrow away their fakesummons outside theChristchurch courts. Aboveright, the streakers in fullflight. Recognise anyone?Perhaps the poor quality ofthe photograph may save afew blushes!

R Cheeky little buggers — Editor

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Book Review By Melanie Jones

The Book ThiefBy Markus Zusak

If you are anything like me and thethought of reading another novelabout World War II makes you sighand think to yourself, “whatpossibly more could be said?” thenplease read just this book.

The author, Markus Zusak, grew up in Sydneyraised by parents who were German citizensduring WWII. The stories that they have passedon to him have influenced his writing.This story is essentially about a young girl calledLiesel Meminger, her best friend Rudy Steiner,Liesel’s foster parents, Hans and RosaHuberman, and a Jew called Max whom theHubermans hid in their basement.The brilliance of this book is twofold. Zusakpenned the unique idea of using Death as theNarrator. War and death are naturally linked andseeing those years unfold from Death’sperspective makes fascinating reading. Here isa glimpse:“I’ve seen so many young men over the yearswho think they’re running at other young men.

They are not. They’re running at me.” (pg 189)Secondly, Death uses colour throughout thebook in ways that make graphic pictures in thereader’s head that stay with you long afteryou’ve turned the last page. For example Deathdescribing war-torn Stalingrad:“In 1942 and early ’43 in that city, the sky wasbleached bed-sheet white each morning. Allday long, as I carried souls across it, that sheetwas splashed with blood, until it was full andbulging to the earth. In the evening, it wouldbe wrung out and bleached again, ready forthe next dawn.” (pg 115)The beauty of this book is its simplicity. Thecharacters are everyday people living inGermany and what they did and felt. This bookemphasises that it is the small moments inour lives that define us.These acts of kindness, support or meannesscan make a difference in the lives of others.These acts are magnified in times of war. In

times of war the ordinariness of humane actsbecome heroic.Do you give a starving Jew a piece of bread asthey are marching down the middle of yourstreet to Dachau and risk a beating from a Naziguard?Do you join a political party with a manifestothat is repugnant to you when all yourneighbours have, knowing that your livelihoodwill dry up if you do not conform?Liesel is the “Book Thief” who uses the powerof words to ultimately save herself when Deathcomes for nearly everyone she loves. Hitler usesthe power of words to mobilise his people andMax uses “Mein Kampf” on the train to aid hisescape into hiding. This irony is not lost on thereader.The Christmas break will be on us all beforewe can blink. So do yourself a favour and askthe white bearded old boy to leave this bookin your stocking.

On 28 September 2012 Robin (Rob) MacDuff retired after 42 years in the public service. Robjoined the Public Trust office in Christchurch on 12 January 1970 as a clerk.In March 1979 he joined what was then the Commercial Affairs Division of the Department ofJustice as an Investigating Solicitor. He was later promoted to Senior Investigating Solicitor. Hiswork initially involved giving advice to both the Official Assignee and Registrar of Companies inrelation to matters that arose under the Insolvency Act and the Companies Act.Over time Rob’s role became more insolvency focused and when the Official Assignee’s Officeseparated from the Companies Office Rob remained with the Official Assignee’s Office, whichbecame the Insolvency & Trustee Service (ITS)Rob has remained with the ITS as it has moved through several reincarnations from the initialDepartment of Justice to Ministry of Commerce, then Ministry of Economic Development andfinally (from 1 July 2012) the Ministry of Business Innovation and Employment.On 28 September a large number of former and current staff met to acknowledge the contributionthat Rob has made to the ITS over the past 33 years.Rob’s legacy to ITS is his contribution to the administration of bankruptcies and liquidations. Aswell as working on many individualestates and liquidations Rob andLynn Saunders (a former OfficialAssignee in Christchurch) wereresponsible for developing theconcept of the No Asset Procedurean alternative option to bankruptcythat was introduced on 3 December2007.The word that best sums up Rob’sapproach to his work is “pragmatic”.He has always been very consciousof the cost of litigation and the endresult that would be achieved. Hecould always been relied upon toprovide a legal solution that was notjust legally correct but one that wasa pragmatic and cost effectivesolution that also took into accountthe equity of the situation.

Robyn Cox

Rob MacDuff retires

Rob MacDuff, left, with Robyn Cox (Official Assignee,South Island) and Les Currie (Official Assignee,Hamilton) at his retirement function.

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Comings & Goings

Library News

Joined firm/organisationJessica Babe (Cuningham Taylor), ClaireBrownlie (Clark Boyce), Jiaxin Cheryl Chan(Davidson & Associates), Luke Hayward(Meares Williams), Jessica Orsman (DuncanCotterill), Thomas Peterson (Chapman Tripp),Matthew Phimmavanh (Williams McKenzie),Autumn Servatkova (Community LawCanterbury), Jerome Toomey (Harmans),Jeroen Vink (Cavell Leitch Pringle & Boyle), EricWeir (Argyle Welsh Finnigan).Changed firm/organisationLucy Glausiuss (Meares Williams to Malley & Co).Change of statusChristine Kay-Eastgate, partner with CorcoranFrench as from 1.10.12.

New barrister/firmEbborn Law Ltd, Erin Ebborn, Director,(previously with Layburn Hodgins), P.O. Box291, Christchurch 8040, phone (03) 339-2233, email erin@ebborn.co.nz.Branch officeGrant Shand, Barrister & Solicitor, ChristchurchBranch, P. O. Box 13090, Christchurch 8141,phone 027 434 5489.Change of detailsKenneth G Marshall, P. O. Box 30012,Barrington, Christchurch 8244.Lexington Legal, P.O. Box 133, Kaiapoi 7644,phone (03) 327-8074, fax (03) 327- 6759.Saunders & Co, Ferrymead Office, Level 1, UnitF, 1063 Ferry Road, Woolston, Christchurch.

While a CERA s45 restriction stillapplies to the Law Library area inthe courts complex in DurhamStreet, progress is being made bythe Ministry of Justice’s earthquakerecovery teams to restore access tothe Link and Law Library building.We understand that the Christchurch CityCouncil has now endorsed the view of Opusthat the extensive land remediation initiallyconsidered necessary, is now not required forsafe re-entry.So while the planned reoccupation of this partof the courts complex in early 2013 is goodnews, it appears that due to competing needsfor existing Library space, there may be changesto the space allocated for the Law Library.The need for a Law Library to be located in thecourts building to support the research needsof the legal profession (with after- hours access)and a quiet study area for lawyers, along with

various practical issues relating to any reductionin space, have been raised in submissions bythe Law Society to the Ministry of JusticeRecovery Project team and Judicial ReferenceGroup.We will report on developments in the nextissue of Canterbury Tales.High Court EQ listJustice Miller’s seminar on the High CourtEarthquake list was reported in the Septemberissue of Canterbury Tales.In the normal course of events, substantive HighCourt decisions are made available through theLINX case law database, produced by theLibrary. To ensure there is no delay, alljudgments processed on the High Court EQlist will be prioritised for adding to LINX as soonas they come through.The Library will notify practitioners of listdecisions via the weekly NZLS CanterburyWestland branch email notices. No High CourtEQ list judgments have been made available,at the time of writing.Online legislationOfficialisation of New Zealand legislation on theGovernment’s New Zealand Legislation websiteis nearly complete. The Parliamentary CouncilOffice Annual Report says that at 30 June 2012the officialisation programme was approximately84% complete and remains on track to befinished, as planned, in 2013.The report notes that public use of the NewZealand legislation website continues toincrease, with an average of around 100,000unique users monthly.New titlesTitles recently purchased for the Librarycollection include:Alternative dispute resolution, (4th ed). TaniaSourdin, Thomson Reuters, 2012;Arlidge, Eady & Smith on contempt (4th ed).

David Eady et al., Sweet & Maxwell, 2011;Boilerplate: practical clauses (6th ed).Richard Christou, Sweet & Maxwell, 2012;Bullen and Leake and Jacob’s precedentsof pleadings (6th ed). IH Jacob et al., Sweet& Maxwell, 2012;Company law in New Zealand. Peter Wattset al., LexisNexis, 2011;Goff & Jones: the law of unjust enrichment(8th ed). Robert Goff et al., Sweet & Maxwell,2011;Gower and Davies’ principles of moderncompany law (9th ed). Paul L Davies et al.,Sweet & Maxwell, 2012;Guest on the law of assignment. AnthonyGuest, Sweet & Maxwell, 2012;Hewitt on joint ventures (5th ed). Ian Hewitt,Sweet & Maxwell, 2011;Jackson & Powell on professional liability(7th ed). John L Powell et al., Sweet & Maxwell,2012;The interpretation of contracts (5th ed). KimLewison, Sweet & Maxwell, 2011;The law of contract (13th ed). GH Treitel etal., Sweet & Maxwell, 2011;The law of real property (8th ed). RobertMegarry et al., Sweet & Maxwell, 2012;Law of restitution (3rd ed). Andrew Burrows,Oxford University Press, 2011;Liability of the crown (4th ed). Peter Hogg etal., Thomson Reuters, 2011;MacGillivray on insurance law: relating toall risks other than marine (12th ed). JohnBinds (ed) et al., Sweet & Maxwell, 2012;Misrepresentation, mistake and non-disclosure (3rd ed). John Cartwright, Sweet &Maxwell, 2012;Principles of evidence in criminal cases.Elisabeth McDonald, Thomson Reuters, 2012;Residential tenancies: the law and practice(4th ed). David Grinlinton, Butterworths, 2012.Contact usFor further information about the Librarycollection or for research or document deliveryrequests, please contact us by email atcanterbury@nzlslibrary.org.nz or phone 377-1852.

By Julia de FriezLibrarian

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6 — Evidence Act for Civil Litigators.13 — Practical Enforcement of Judgments.13 — Reading Accounts and Balance Sheets2012.19-20 — Introduction to High Court CivilLitigation Skills 2012.20 — Trusts for Property Lawyers.28-29 — Reading accounts and balancesheets.

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Pre-quake damage issuesSome residential and commercialproperty owners are nowdiscovering that their propertieswere damaged long before theCanterbury Earthquakes.In some cases earthquake building repairs haverevealed pre-existing damage caused bysystemic building defects.This article looks at the legal issues that mayarise if a property suffers from both earthquakedamage and pre-existing damage such asweathertightness defects.Residential and commercial property insurancepolicies typically cover sudden or accidental lossand will exclude cover for “gradual damage”such as the damage caused to buildings byleaky building defects.In general terms, properties that containweathertightness defects may suffer gradualdamage due to the ingress of moisture beneaththe external cladding. These problems canworsen over time if remedies are not found.As a result, the estimated cost to repair theseproperties if they are earthquake damaged maybe greater.The term “leaky building” is a blanket term todescribe a wide variety of situations, includingproperties with defects that could be capableof leaking and causing damage in the future.In some cases the property may containmaterials commonly associated with leakybuilding syndrome, such as a monolithiccladding, but not actually suffer any damage.Therefore it is important to bear in mind thedistinction between the terms “defects” and“damage”, even though these two words areoften used interchangeably.If a building contains defects that have notactually caused any damage then, subject tothe wording of the insurance policy, any gradualdeterioration exclusions will not apply. If thebuilding was “performing” before theearthquake then the insurer is obliged toreinstate the property to its pre-earthquakecondition.In most cases insurers will treat the cost ofrectifying the leaky building damage asbetterment. Betterment is a deduction in value

because the replacement product is worthmore than the original. To the insurer, a homewith weathertightness defects and damage willhave been of significantly less value at the timeof the earthquake than if it were built soundly.The insurer may attempt to deduct thedifference in value (or a percentage) from thetotal value of a claim to reflect the true valueof what it has replaced. Again this may dependon the wording of the policy.If the property was built within the last 10 years,the owner may still be within time to recoverthe cost of rectifying the pre-existing damagefrom weathertightness issues, from the partiesresponsible for the defects.This could include the builder, architect, varioussub trades and local Council. The government’sleaky building financial assistance package isanother option open to residential propertyowners. Homeowners can apply for thisthrough the Department of Building andHousing. Again the property must be builtwithin the last 10 years.

The parties to a leaky building claim willinevitably try to attribute as much damage aspossible to the earthquake in order to minimisetheir liability. Therefore, it may be prudent tobring a claim in a forum where it is possible toconsider both earthquake and leaky buildingdamage together, such as a Court, as opposedto the Weathertight Homes Tribunal, which hasa limited jurisdiction.Determining whether a property contains pre-existing damage can be difficult. If it is suspectedthat a property contains pre-existing damage itis important to undertake a thoroughassessment of how and when the damage wascaused.This is especially important where cracks andleaks caused by the earthquakes have not beenrepaired in the interim. Property owners canassist this investigation process by gatheringevidence that shows the property’s pre-earthquake condition, such as photos, buildinginspection reports and maintenance records.

By Lucy Chapman

On the 8th November 2012 Community LawCanterbury will celebrate 30 years of service.Appropriately, the celebration will be hosted bythe UC Law School and its Acting Dean Dr ChrisGallavin. He will be joined by both the CanterburyWestland Law Society’s President RachelDunningham (a past student volunteer) andManager Malcolm Ellis.These hosts are a perfect fit, as Community Lawwas the initiative of both students and faculty ofthe Law School. They incorporated CommunityLaw Canterbury in May 1982. The law professionwelcomed the initiative and joined in supportfor the organisation. These bonds are as strongand relevant today as ever.Today Community Law Canterbury serves closeto 20,000 clients a year across all areas of law.Law students and volunteer solicitors continueto be the backbone. The work undertaken isdiverse with involvement in areas such as, legalinformation, law reform, casework, prison serviceand employment services.The student run phone line alone handles over

CLC celebrates 30 years8000 enquiries each year. The volunteer hoursthat law students, faculty, and the professionprovide are immense and they are given withthe same generosity and passion for access tojustice that sparked the formation 30 years ago.The 30-year celebration almost passed us by asCommunity Law with our partners responds toan ever-increasing community need for legalassistance, particularly in regard to issues arisingout of the earthquakes. Again, the Law Schooland Law Society have joined us in offering alegal response to our community to meet thedevastating impact of those events.There will be a full article in the NovemberCanterbury Tales that will be looking over thepast 30 years and will acknowledge those thathave supported Community Law during this time.Some of the founding students and facultymembers are still volunteers and this support iswhy we are still able to offer the communityour essential services.

Paul O’Neill, Manager, Community Law Canterbury