coming to nz to do business? what you need to know...

www.adls.org.nzISSUE 21 3 JULY 2015

Continued on page 2

LAWNEWS

THIS ISSUE:

More top minds to tackle miscarriages of justice

Erceg decision – what happens to bankrupt beneficiaries?

Coming to NZ to do business? What you need to know …

+ Criminal law and appeals

PUBLIC INTEREST PROJECT AIMS TO EXPOSE MISCARRIAGES OF JUSTICE

By Rod Vaughan

Just over a year after Law News reported on the revival of the New Zealand “Innocence Project” (Law News Issue 1, 7 February 2014), another body has been set up to investigate suspected miscarriages of justice.

The New Zealand Public Interest Project (NZPIP), a charitable trust, was developed in the wake of the Teina Pora and Michael October cases where fundamental concerns about the justice system had been raised by the news media and prominent lawyers.

Mr Pora’s convictions for the rape and murder of Susan Burdett were quashed by the Privy Council this year after he spent more than 21 years in prison, while Mr October was jailed for 11 years for the 1994 rape and murder of Anne-Maree Ellens, a crime that he claims he did not commit.

The NZPIP’s voluntary board consists of Canterbury University Dean of Law Chris Gallavin, sociology lecturer Jarrod Gilbert (also from Canterbury University), lawyers Nigel Hampton QC, Kerry Cook and Duncan Webb, private investigators Tim McKinnel and Glynn Rigby and forensic scientist Dr Anna Sandiford.

Should New Zealand follow in the footsteps of some other jurisdictions and set up a government-funded criminal cases review commission?

Before the creation of the NZPIP (which is a joint initiative with the University of Canterbury), board members were privately involved in the Pora, October, Lundy and Bain cases.

Other cases currently in the NZPIP’s sights include those of Scott Watson, who was jailed for a minimum of 17 years for the murder of Ben Smart and Olivia Hope in 1998, and Peter Ellis, who was convicted of child sex abuse at the Christchurch Civic Crèche in 1993 and spent ten years in prison.

In the first instance, cases will be examined by law students operating under the supervision of

the board, working mostly on a pro bono basis and earning course credits.

In some cases, the board may apply for legal aid, but the NZPIP itself will receive no direct funding.

Associate Professor Gallavin told Law News the organisation has a broader mandate than the Innocence Project and will look at civil cases as well as criminal ones.

He says that, with no government funding, the NZPIP will be limited in what it can take on but he is nevertheless “hopeful that the public of

ISSUE 21, 3 JULY 2015

New Zealand will agree with our ethos of getting cases heard or reheard before the courts in the best shape possible”.

Asked whether the incidence of miscarriages of justice in New Zealand is higher than other western jurisdictions, Associate Professor Gallavin said there has been a number of criminal and civil cases in recent years that have given many people “serious cause for concern”.

“However, no specific research has been done on the rate of miscarriages of justice in New Zealand and I suspect we are not out of line with overseas jurisdictions, so let us not overreact and say that the New Zealand system is rotten to the core.

“It is a man-made system with man-made frailties and mistakes will happen and scientific advances will be made.

“Overall, the system will be strongly complimented and not undermined by the NZPIP.”

He went on to note, “This is not a bunch of disgruntled lawyers working to free those guilty of crimes they have committed, but is a group of people who feel passionately about our system and our community and justice, and want the system to operate more effectively for the most vulnerable.”

Lawyer Jonathan Krebs, who, along with private investigator Tim McKinnel, was instrumental in getting Teina Pora’s convictions quashed, told Law News he sees the NZPIP as being “a focal point for those who feel that a miscarriage of justice has occurred and a vehicle to begin the investigation and enquiry into such claims”.

“To date, such cases are only advanced if an advocate or champion is willing to work for free in order to investigate and look to correct any miscarriages of justice that are revealed.

“Teina Pora’s case was one such. It took nearly two years of work by Tim McKinnel and myself without remuneration before we had sufficient evidence to justify applying for a grant of legal aid.

“Not everybody is prepared to work for free for a cause which may or may not prove meritorious in the long run.”


PUBLIC INTEREST PROJECT AIMS TO EXPOSE MISCARRIAGES OF JUSTICEContinued from page 1

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with problematic cases much more efficiently.

“I think part of the reluctance to establish such a commission is driven by ignorance and misconception in the minds of politicians.”

And he believes politicians opposed to a commission are wrong to suggest there are currently more than adequate avenues of appeal in the present system.

“Ask Teina Pora whether the right to appeal under New Zealand law was sufficient, seeing as he spent 21 years in prison and was reviewed by 15 Corrections Department psychologists who failed to identify he suffered from foetal alcohol syndrome.

“The theory of the case put by the Crown was fundamentally flawed and yet it took 21 years and the personal dedication of a few hard working lawyers and private investigators, who would not give up, to get the case to the Privy Council.

“Even senior police officers said his convictions were wrong, so tell me now that the appeal process is flexible enough to fix such problems quickly?”

Chris Gallavin and Jonathan Krebs are in good company in their belief that New Zealand should look at setting up a criminal cases review commission.

Former High Court Judge Sir Thomas Thorp conducted a review more than a decade ago comparing New Zealand’s system of dealing with miscarriages of justice with those in Scotland and England.

Based on the experiences of those countries, he estimated there were likely to be at least 20 innocent people in jail here and concluded we should establish something akin to the Scottish Criminal Cases Review Commission (CCRC).

Referrals by the CCRC have resulted in around four wrongful convictions being corrected each year, compared to New Zealand’s rate of one every two years under the royal prerogative of mercy.

When interviewed by Law News last year, Sir Thomas said his views have not changed over the years, saying one of the reasons for the low number of miscarriage of justice claims here

“[At present, there is] a real impediment to advancing an application for exercise of royal prerogative of mercy – that is that the Criminal Disclosure Act does not apply. The result is that those seeking redress must rely on civil remedies and the view of police as to what should be disclosed. This is unsatisfactory and could be remedied by an amendment to the Criminal Disclosure Act requiring disclosure in royal prerogative of mercy cases.”

Jonathan Krebs

Continued on page 3

Asked whether New Zealand should follow in the footsteps of some other jurisdictions and set up a government-funded criminal cases review commission, Mr Krebs says he believes the time has come for such a body to be reassessed.

“That is not to say that I believe one would be economically justified but I do think some greater consideration needs to be had.

“Whether Teina’s case would have played out any differently is hard to say. Time may have been saved, particularly if any commission had with it powers to compel police to provide disclosure. In Teina’s case, we were delayed for what was in effect 18 months, by refusal of the police to provide certain information and our need to apply to the High Court for the mandatory injunctions requiring them to do so.”

This view is shared by Associate Professor Gallavin who believes such a commission would save taxpayers money in the long run by dealing


is that Māori and Pacific Island inmates, who make up more than 60 per cent of the prison population, see little merit in making such claims.

“Most people who have failed in all their appeals are unimpressed with the justice system and they don’t want to go back to the Minister of Justice with complaints because they think it’s simply a waste of time. In England and Scotland it’s considered vital to have an independent commission considering such complaints but, for some reason, not in this country.”

Despite such high-powered advocacy, Minister of Justice the Hon Amy Adams (like her predecessor Judith Collins), sees no need for a commission.

Ms Adams told Law News that while it is “clearly undesirable” for cases like Teina Pora to take more than 20 years to resolve, “miscarriage of justice cases invariably rely on fresh evidence which only comes to light well after trial and following further investigation by a new defence team”.

“We already have mechanisms such as the appellate courts and the royal prerogative of mercy which allow the system to correct errors.

“It’s important to understand that criminal cases review commissions require applicants to produce new evidence that was not considered at trial or on appeal before they will consider their cases. Also, in recognition of the separation of powers, criminal cases review commissions only have power to refer cases back to the appellate courts and do not themselves set aside convictions.

“In New Zealand, we already have a mechanism to refer deserving cases back to the criminal courts for a further appeal – the royal prerogative of mercy. In general terms, an applicant who is able to show they have fresh, reliable and cogent evidence will have their case referred back to the courts by the Governor-General. That process has been used successfully in a number of cases, including David Bain’s.

“As I’ve seen no evidence the current mechanism does not operate effectively, we are satisfied there is no need for a new body.”

For his part, Jonathan Krebs remains unconvinced, saying there is at present “a real

impediment to advancing an application for exercise of the royal prerogative of mercy”.

“That is that the Criminal Disclosure Act [2008] does not apply. The result is that those seeking redress must rely on civil remedies and the view of police as to what should be disclosed. This is unsatisfactory and was the underlying reason why we required injunctive relief in Teina’s case. This could be remedied by an amendment to the Criminal Disclosure Act requiring disclosure in royal prerogative of mercy cases.”

In the meantime, the NZPIP faces a daunting task as it delves into some of the most controversial and complicated cases that have been before the courts. Reliant on the goodwill of academics, students, lawyers and investigators, and with no direct funding, it will have its work cut out uncovering new evidence that could redress miscarriages of justice.

Chris Gallavin, for one, is not underestimating the task ahead.

“We are a little nervous about the number of criminal and civil cases that might be referred to us for review, but we are keen to do our best in our little corner.”

“In New Zealand, we already have a mechanism to refer deserving cases back to the criminal courts for a further appeal – the royal prerogative of mercy. In general terms, an applicant who is able to show they have fresh, reliable and cogent evidence will have their case referred back to the courts by the Governor-General. As I’ve seen no evidence the current mechanism does not operate effectively, we are satisfied there is no need for a new body.”

Justice Minister the Hon Amy Adams

Continued from page 2

A range of preferential offers, available to

ADLSI members, from carefully selected partners.Member BenefitsProgramme

To view the latest offers visit www.adls.org.nz

LN


However, a beneficiary’s right to information flows not from a beneficiary’s future interest in trust property (a proprietary right) but from the High Court’s inherent jurisdiction to enforce a trust. See Schmidt v Rosewood Trust Limited [2003] 2 AC 709; [2003] 3 All ER 76 (PC) at [51], where the Privy Council states that:

“… the more principled and correct approach is to regard the right to seek disclosure of documents as one aspect of the court’s inherent jurisdiction to supervise, and if necessary to intervene in, the administration of trusts. The right to seek the court’s intervention does not depend on entitlement to a fixed and transmissible beneficial interest.”

In Erceg, the matter came before the Court when a disgruntled (former) beneficiary, who was a discharged bankrupt, sought orders requiring trustees of a trust that had since been wound up to provide trust documents. The application was by way of summary judgment. The application was defended by the trustees. The beneficiary had two different interests under the trust, as a discretionary beneficiary and as a contingent final beneficiary. See also Johns v Johns [2004] 3 NZLR 202; (2004) 1 NZTR 14-005 (CA), where the trust deed was similar in that regard.

First, it was necessary for the Court to determine whether Mr Erceg had standing to bring the proceedings. This required the Court to assess whether his rights to seek trust information constituted property for the purposes of section 101 of the Insolvency Act.

The court determined that Mr Erceg’s interests as a final beneficiary were property for the purposes of section 101 and that these rights vested in the Official Assignee. Perhaps surprisingly, the Court also found that these rights did not automatically re-vest in Mr Erceg upon his discharge from bankruptcy. Accordingly, Mr Erceg did not have standing to bring the proceedings as a final beneficiary despite his discharge from bankruptcy.

This begs the question as to what happens to a bankrupt’s interests as a final beneficiary following discharge from bankruptcy (where the

+ Trust law, insolvency law

Bankrupt beneficiaries – for three years or forever?

By Vicki Ammundsen, Director, Vicki Ammundsen Trust Law Limited

Vicki Ammundsen considers the potential implications of the High Court decision in Erceg v Erceg [2015] NZHC 594. The author gratefully acknowledges the assistance of John Brown, Barrister.

Trusts are settled for many reasons. While there is no one primary reason for settling a trust, creditor protection is commonly cited. But what actually happens if a beneficiary is bankrupted? Does a trust provide a perfect solution?

The adequacy of a trust to protect bankrupt beneficiaries depends in part on what side of the equation you are looking. In the recent decision in Erceg v Erceg [2015] NZHC 594, the issue for the court was whether the court should order disclosure of trust information to a beneficiary and, in particular, whether a discretionary beneficiary’s right to trust information was a property right that vested in the Official Assignee on the beneficiary’s bankruptcy.

Pursuant to section 101 of the Insolvency Act 2006, all of a bankrupt’s property vests absolutely in the Official Assignee upon the bankrupt’s bankruptcy. Section 101 provides:

Status of bankrupt’s property on adjudication

(1) On adjudication,—

(a) all property (whether in or outside New Zealand) belonging to the bankrupt or vested in the bankrupt vests in the Assignee without the Assignee having to intervene or take any other step in relation to the property, and any rights of the bankrupt in the property are extinguished; and

(b) the powers that the bankrupt could have exercised in, over, or in respect of any property (whether in or outside New Zealand) for the bankrupt’s own benefit vest in the Assignee.

Note that section 101 is subject to section 104, which specifically provides that any property owned by a bankrupt as trustee does not comprise part of the bankrupt’s estate.

For the purposes of the Insolvency Act, “property” is defined to mean “property of every kind, whether tangible or intangible, real or personal, corporeal or incorporeal, and includes rights, interests, and claims of every kind in relation to property however they arise”. In Erceg, Courtney J notes at [15] that the definition of property is “very wide and clearly intended to have the broadest reach possible, capturing all interests in and rights broadly connected with property”. The breadth of the definition of property for the purposes of the Insolvency Act is confirmed in Rosebud Corporate Trustee v Bublitz [2014] NZHC 2018 at [141], where it is stated that for the purposes of the Insolvency Act “property” includes “rights, interests and claims of every kind in relation to property however they arise. It includes choses in action, and every valuable thing.”

trust in question has not vested during the term of the bankruptcy).

The answer to this question can be found in Trustee Executors v Official Assignee [2015] NZCA 118, which states somewhat succinctly at [32] that:

“The [Insolvency Act] also allows for an annulment of the adjudication of a bankrupt in certain circumstances including where the court is satisfied that the bankrupt’s debts have been fully paid and that the [Official Assignee’s] costs have been met. The effect of an annulment is that all property of the bankrupt vested in the [Official Assignee (OA)] on bankruptcy and not sold or disposed of, revests in the bankrupt. If there is no annulment, any property that has vested in the OA remains available to the OA despite the bankrupt’s discharge.”

(Note: references to sections 309 and 311 of the Insolvency Act and reference to Official Assignee v Probert HC Palmerston North CP 216-90, 12 November 1990 have been omitted from the quote.)

Nevertheless, the next issue for the Court related to a discretionary beneficiary’s right to trust information. In this regard, it was noted that a discretionary beneficiary has no more than an expectancy or hope that a trustee will exercise a discretion in the beneficiary’s favour and it was accepted that there is no property right or interest in this. However, a discretionary beneficiary does have the right to seek trust information (deriving not from any property right but from the Court’s inherent jurisdiction to enforce trusts – as confirmed in Schmidt v Rosewood Trust Limited).

The Court considered that the right to seek disclosure of documents relating to the administration of a trust is a right in relation to property – and accordingly vested in the Official Assignee. It is difficult to reconcile this conclusion with the decision in Schmidt v Rosewood Trust Limited given that while the right to trust information is a beneficiary’s right, its exercise is contingent on the Court’s discretion to enforce the proper management of a trust.

However, given the authority in Erceg, practical consideration needs to be given to the fact that any bankrupt beneficiary who does not have his or her bankruptcy annulled may have no rights to trust information during or following the discharge from bankruptcy. This raises the more important issue as to the status of any beneficiary distributions following bankruptcy and whether these are possible at all – or whether following the analysis in Erceg, any subsequent beneficiary distributions to a discharged bankrupt are more properly the property of the Official Assignee.

Readers may be interested in ADLSI’s upcoming webinar entitled “Bankruptcy: Uses and Abuses” being held on 22 July 2015. For more details, please see page 8 or visit ADLSI’s website www.adls.org.nz/cpd.

Vicki Ammundsen

LN


By David Ryken, Principal, Ryken and Associates

Reference is made to the very helpful article on immigration issues involved with doing business in the United States, written by Zachary Norris and Ada Echetebu (Law News Issue 17, 5 June 2015). Almost without exception, the problems facing New Zealanders bound for the US are identical or parallel to the problems and issues awaiting unprepared business persons and corporate employees coming to carry out activities properly described as “work” in New Zealand.

The writer’s firm is often engaged very late in the process, sometimes after corporate transferees have actually arrived in New Zealand and are already carrying out non-compliant (unlawful) activities. Sometimes these are individuals from major corporations, often senior executives, who either incorrectly consider that their activity is “business” and does not require a work visa, or who for some reason are of the view that they can fly into New Zealand and begin work immediately.

Law firms involved in joint ventures or in setting up company structures in New Zealand for multinational companies need to factor in as early as possible detailed immigration advice if it is intended that employees from overseas companies are required to work in New Zealand, be they specialist personnel, senior executives or business persons.

Business visitor visas

New Zealand allows the citizens of 58 countries to apply for entry at the border without a visa. This is sometimes referred to as “visa-free”, but this is in fact a misnomer. The arrival card is in fact a visa application which is processed summarily.

Where an individual indicates they are not a genuine visitor, and for example does not have sufficient means of support or indicates at an interview an activity that does not come within the “business” visitor exception, then the individual can face immediate repatriation without obtaining entry. There is almost no opportunity to review this process prior to deportation and any future travel will be restricted to a pre-travel visa application.

Ticking “business” on the arrival card is therefore not enough. The misuse of the “business” exception is in fact endemic around the globe. Furthermore, the definition of the “business” exception to the visitor visa rule differs from country to country. The Global Employment Institute, a section within the International Bar Association, has, as one of its projects, harmonisation of these rules. Currently the rules, though similar, are not standardised. In New Zealand, working on a visitor visa for up to three months is allowed for the following (see Immigration New Zealand Operational Manual, V3.5):

• representatives on official trade missions;• sales reps of overseas companies;

• overseas buyers of New Zealand goods or services; and

• business persons conducting business negotiations or consultations.

With regard to “business negotiations or consultations”, the exception only extends to the establishing, expanding or winding up of any business enterprise in New Zealand, or carrying on any business in New Zealand involving the authorised representatives of any overseas company or persons.

The last part of the rule clearly indicates that the senior part of an organisation, such as the CEO or a director who represents the company, can make use of the flexibility surrounding the term “business negotiations or consultations”. This is limited to three months in any calendar year, but it can be extended by way of application but this involves the granting of a work visa. It is a special type of work visa and does not require a job offer from a New Zealand company or entity.

“Business negotiations or consultations” do not include (to give some examples) work as an engineer, a loss adjuster, as an architect or to work as a lawyer in a law firm, or giving paid expert evidence in court. These activities are not

business negotiations or consultations. It might be work that is carried out to service a client, or it might be work for a subsidiary company already established in New Zealand. The notion that it is enough for “business” to be carried out is quite wrong.

Neither is there authorisation to carry out these activities post-arrival after an application has been lodged. Inward-bound to the US, in some circumstances, a petition can be presented at the border. New Zealand does not have that facility and unless an applicant is prepared to go on a long holiday, post-arrival intra-corporate transferee visas should be avoided as it clearly may indicate to Immigration New Zealand that the company or individual or both are non-compliant, and already working. This is easily ascertained by a simple phone call to the business.

We have found, particularly with the Christchurch reconstruction project, a number of corporates have unfortunately mis-advised themselves of the parameters of the business visitor exception to the rule. An excuse we often hear is that because the remuneration is not within New Zealand, it is thought that a work visa is not required. This is not so. Foregoing wages until the visa is issued is also a well-tried argument that goes down like a lead balloon.

It is critical therefore that immigration/visa issues are examined carefully with all businesses setting up operations in New Zealand, if, to use the words of Mr Norris and Ms Echetebu in their article, the client wants to avoid “catastrophic results”.

Please note that in addition to the business exception that allows remuneration whilst on a visitor visa, we have a number of other exceptions to the visitor visa rule including:

• media involved in sports events, etc;• sports persons involved in events, etc;• academics; and• owners and crew of super yachts.

The exact parameters of these exceptions and others are set out in the Operational Manual, in the chapter on visitor visas.

Intra-corporate multinational transfer visas

Early advice is also important, particularly if visas are wanted urgently. We have two species of corporate work visa under WS2 (Operational Manual) – a secondment visa and an intra-company transfer visa. With the intra-company transfer visa, it is not necessary to have a localised contract or in fact to have an employer in New Zealand. The company must, however, be a multinational. Sometimes there are advantages in relation to the documentation requirements involved in one category or the other. The important point is that neither the secondment visa nor the intra-company transfer visa require the employer to establish a local shortage. No market test is necessary.

Ordinarily for visas under the Essential Skills work visa category, unless the occupation comes within one of our shortages lists and the person

+ Law and doing business in New Zealand, immigration issues

Immigration issues and doing business in NZ

David Ryken

A number of corporates mis-advise themselves of the parameters of the business visitor exception. A frequent excuse is that because the remuneration is not within New Zealand, it is thought that a work visa is not required. Foregoing wages until the visa is issued is also a well-tried argument that goes down like a lead balloon.

Continued on page 10


The legal and academic communities were saddened by the passing last week of Margaret McGregor-Vennell, aged 80 years.

Margaret Vennell first started lecturing at the Auckland Faculty of Law in 1967, eventually retiring as an Associate Professor in March 2001.

She taught a broad range of courses, including Air and Space Law and Commercial Law, but is remembered by generations of law students for her teaching and research in Tort Law, in which she was something of an institution.

Dean Andrew Stockley said Associate Professor Vennell was a greatly admired and much respected member of the Faculty and her legacy will live on in the minds of those whose lives she touched during her years of service.

“There has been an instant response from a number of her long-standing colleagues who remember her with great fondness and are very sad to hear of her death,” he said. “Margaret was held in great affection by her students and former colleagues. She remained in touch with the Law School and took part in our Alumni Celebration Event in 2012. She will be greatly missed.”

Among those who expressed their sense of loss, Associate Professor Jo Manning said: “I remember especially her kindness and the support she showed to me as a young woman new to the Faculty. She will be remembered as much for her wonderful, self-parodying anecdotes with which she entertained numbers

+ Tribute

Margaret McGregor-Vennell ONZM, 18 June 2015

of Torts students over many years, as for her extraordinary encyclopaedic knowledge of Tort Law. She had a wonderfully warm and colourful personality.”

Professor Jane Kelsey said she had many memories of the vanguard role that Associate Professor Vennell and her fellow colleague, Nadja Tollemache, played for women law academics, being required to share an office with each other and their babies during their early careers.

Margaret Vennell was made a distinguished member of the Auckland District Law Society in recognition of her services to law. In an article in Law News in May 2001, she discussed her decision to enter the law (which won out over becoming a pilot) and some highlights of her career. As the sole female law student at Otago University in 1952, she “wasn’t allowed to go to some of the criminal lectures, the ones on rape and sexual crimes”. “The lecturer told me to read about them myself and ask him if there was anything I didn’t understand,” she said.

Once out in practice, Professor Vennell became more assertive about her minority female status. She once returned an invitation to a Law Society dinner in Wellington, but was then phoned and “politely told she must have made a mistake”. “Then I rang around and got some other women friends to go, so they couldn’t turn us down. We had our photo in the paper and a story about how they had these women at the dinner!” she said.

Ultimately, she landed her “dream job” as legal advisor with the Civil Aviation Administration. During that time, she wrote the Carriage by Air Act 1962, and sat alongside the Minister to advise him as he introduced it to Parliament. After a stint as legal adviser in the Ministry of Works, she approached the Auckland Law School and began a teaching career which was to span some 30 years, but maintained that of all the subjects she taught, air and space law was “still her greatest love”. LN

Christchurch Queen’s Counsel Nicholas Davidson and Auckland barrister Rebecca Edwards have been appointed judges of the High Court.

Nicholas Davidson graduated with an LLB (Hons) from the University of Canterbury in 1971 and became a barrister and solicitor with Duncan Cotterill & Co in Christchurch. In 1974, he left that firm to join Young Hunter & Co, becoming a partner in 1975.

Justice Davidson went to the independent bar in 1988 and was appointed Queen’s Counsel in 1996. He has led teams across a wide range of civil and prosecution litigation including representing the Serious Fraud Office in the Commission of Inquiry into various tax related matters (the Wine Box Inquiry). He was also counsel before the Royal Commission of Inquiry for the families of those who died in the Pike River Mine Disaster in 2010.

Justice Davidson was appointed Deputy Chair of the New Zealand Sports Disputes Tribunal in 2003 for a term ending in 2011

+ Judicial appointments

Two new judges of the High Court

and is National Commissioner for New Zealand Cricket. He is a member of the disciplinary structures within SANZAR and the IRB and the Code of Conduct Commission for the International Cricket Council based in Dubai.

Justice Davidson will sit in Christchurch.

Rebecca Edwards graduated with a BA and LLB (Hons) from the University of Auckland in 1993 and commenced work as a solicitor with the Auckland office of Russell McVeagh. In 1996, she graduated with an LLM from the University of Virginia.

In 1997, Justice Edwards took a position with Herbert Smith in London, before returning to Russell McVeagh as a senior solicitor in 1998. Justice Edwards left Russell McVeagh in 2003 to commence practice as a barrister sole specialising in commercial civil litigation with a particular focus on contract, shareholder and insolvency related disputes.

Justice Edwards was admitted to the permanent bar in the Cook Islands in 2010 and subsequently represented the respondents in the first two Cook Islands appeals to the Privy Council. She has also been a long-standing member of ADLSI.

Justice Edwards will sit in Auckland.

Justice Rebecca Edwards

LN

Associate Professor Margaret Vennell (pictured in Law News, 4 May 2001)

said that air and space law was her greatest love.


ADLSI is continuing its successful Lawyers’ Lunch series for 2015 with an event in West

Auckland.

We have a Lawyers’ Lunch coming up in Henderson on Tuesday 28 July 2015 at The Falls. Practitioners from across West Auckland are invited to join us for a relaxed

lunch and enjoy a short presentation by ADLSI and Lawyers’ Lunch sponsor Mainprice King.

The lunch will be $24.95 (incl. GST) from a set menu, and we are pleased to offer ADLSI members an exclusive Lawyers’ Lunch rate of $14.95 (incl. GST). Numbers are limited, so register now to avoid missing out.

+ ADLSI event

West Auckland Lawyers’ Lunch, 28 July 2015

The ADLSI Immigration and Refugee Law Committee is again holding its annual dinner with the Minister of Immigration, the Hon Michael Woodhouse.

Immigration lawyers, licensed advisers and other senior figures in the immigration sector are invited to this valuable opportunity to meet and build rapport in a convivial setting. The evening will include pre-dinner drinks and a three-course dinner, plus a short address from the Minister.

Date: Monday, 27 July 2015Time: 7.00pm arrival and drinks 7.30pm dinnerDress code: Business attireVenue: Northern Club, 19 Princes Street, Auckland Tickets: $83.00 + GST ($95.45 incl. GST) for ADLSI members and the judiciary; $95.00 + GST ($109.25 incl. GST) for non-members.

To register for this dinner visit www.adls.org.nz; alternatively, email [email protected] or phone (09) 303 5287. Spaces are limited, so register before Wednesday 22 July 2015 to secure your spot, subject to availability.

ADLSI’s standard cancellation policy applies for this event.

+ ADLSI event

Annual Immigration and Refugee Law dinner, 27 July 2015

The Hon Michael Woodhouse

LN

Employment lawyers, judges, ERA members and mediators are invited to come together for the Annual ADLSI Employment Law dinner on Thursday 6 August 2015.

Pre-dinner drinks followed by dinner will give plenty of time and opportunity for you to relax and enjoy the company of your employment law friends and colleagues in the ambiance of Euro Restaurant on Princes Wharf.

Date & time: Thursday 6 August 2015, 6.30pm

Venue: Euro Restaurant & Bar Shed 22, Princes Wharf, 147 Quay Street, Auckland

Tickets: $110 + GST ($126.50 incl. GST) for ADLSI members and the judiciary; $125 + GST ($143.75 incl. GST) for non-members.

Register before 29 July 2015 to secure your space, subject to availability. To register and pay for this dinner online visit www.adls.org.nz; alternatively, contact [email protected] or 09 303 5287.

ADLSI’s standard cancellation policy applies for this event.

+ ADLSI event

Annual Employment Law dinner, 6 August 2015

Date & time: Tuesday 28 July 2015, 12-2pmVenue: The Falls, 22 Alderman Dr, HendersonTickets: $13.00 + GST ($14.95 incl GST) per person for ADLSI members; $21.70 + GST ($24.95 incl GST) per person for non-members.Register before 20 July 2015 to secure your spot, subject to availability. Visit www.adls.org.nz to register and pay online; alternatively, contact [email protected] or 09 303 5287. ADLSI’s standard cancellation policy applies for this event.

ADLSI West Auckland Lawyers’ Lunch sponsored by Mainprice King.

LN

www.adls.org.nzISSUE 21 3 JULY 2015

Continued on page 2

LAWNEWS

THIS ISSUE:

More top minds to tackle miscarriages of justice

Erceg decision – what happens to bankrupt beneficiaries?

Coming to NZ to do business? What you need to know …


PUBLIC INTEREST PROJECT AIMS TO EXPOSE MISCARRIAGES OF JUSTICE

By Rod Vaughan

Just over a year after Law News reported on the revival of the New Zealand “Innocence Project” (Law News Issue 1, 7 February 2014), another body has been set up to investigate suspected miscarriages of justice.

The New Zealand Public Interest Project (NZPIP), a charitable trust, was developed in the wake of the Teina Pora and Michael October cases where fundamental concerns about the justice system had been raised by the news media and prominent lawyers.

Mr Pora’s convictions for the rape and murder of Susan Burdett were quashed by the Privy Council this year after he spent more than 21 years in prison, while Mr October was jailed for 11 years for the 1994 rape and murder of Anne-Maree Ellens, a crime that he claims he did not commit.

The NZPIP’s voluntary board consists of Canterbury University Dean of Law Chris Gallavin, sociology lecturer Jarrod Gilbert (also from Canterbury University), lawyers Nigel Hampton QC, Kerry Cook and Duncan Webb, private investigators Tim McKinnel and Glynn Rigby and forensic scientist Dr Anna Sandiford.

Should New Zealand follow in the footsteps of some other jurisdictions and set up a government-funded criminal cases review commission?

Before the creation of the NZPIP (which is a joint initiative with the University of Canterbury), board members were privately involved in the Pora, October, Lundy and Bain cases.

Other cases currently in the NZPIP’s sights include those of Scott Watson, who was jailed for a minimum of 17 years for the murder of Ben Smart and Olivia Hope in 1998, and Peter Ellis, who was convicted of child sex abuse at the Christchurch Civic Crèche in 1993 and spent ten years in prison.

In the first instance, cases will be examined by law students operating under the supervision of

the board, working mostly on a pro bono basis and earning course credits.

In some cases, the board may apply for legal aid, but the NZPIP itself will receive no direct funding.

Associate Professor Gallavin told Law News the organisation has a broader mandate than the Innocence Project and will look at civil cases as well as criminal ones.

He says that, with no government funding, the NZPIP will be limited in what it can take on but he is nevertheless “hopeful that the public of

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Selected CPD CPDTo view all ADLSI CPD & register: www.adls.org.nz/cpdEmail us: [email protected] Phone us: 09 303 5278

Featured CPD

Tuesday 28 July 2015 12pm – 1pm

At your desk or on your portable device

1 CPD HOUR

Rural Law Series: Best Practice for Tailored Succession Planning Rural properties (including farms) stand apart from other realty and income-generating assets in that they are frequently the culmination of lifetime investments, driving significant emotional attachment. These factors, together with the increasingly complex nature of families, mean that careful attention and expertise are required when advising such clients on succession planning matters. With focus on both legal and financial aspects, this webinar will equip lawyers with knowledge of how best to advise rural and farming clients according to their individual needs when planning their future, that of the farm and their children.

Learning Outcomes• Gain an increased awareness of what information is relevant when advising on a succession plan.

• Increase your understanding of financial factors to consider when devising a succession plan.

• Learn more about the various succession planning vehicles available and the advantages and disadvantages of each.

Who should attend?Junior to intermediate rural lawyers and property lawyers of any level who may occasionally be involved with advising rural (including farming) clients on their succession planning matters.

Presenters: Warwick Deuchrass, Partner, Anderson Lloyd, Queenstown and John Adams, Director – Tax, KPMG, Hamilton

Wednesday 22 July 2015 12pm – 1pm

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device

1 CPD HOUR

Bankruptcy: Uses and AbusesBankruptcy is a tool available to both debtors and creditors but it needs to be used carefully for the parties to obtain any real benefit. This webinar will explore some of the key issues when advising debtors and creditors on bankruptcy, as well as the role of the Official Assignee in the proceedings.

Learning Outcomes• Gain insights into the advantages and disadvantages of the bankruptcy regime and strategies for avoiding bankruptcy.

• Learn more about the alternatives to bankruptcy, including the No Asset Procedure, and the potential problems of each.

• Discover more about the Official Assignee’s position in respect of the disclaiming of property and rights as well as the assignment of actions and vesting orders.

Who should attend?General practitioners, in-house lawyers, litigators and debt collectors.

Presenters: Gareth Neil, Partner, Meredith Connell and Nick Moffatt, Senior Associate, Bell Gully

Tuesday 21 July 2015 4pm – 6.15pm

Live streamed | Auckland (venue TBC)

2 CPD HOURS

Commercial Law Series: Offers of Equity Securities under the Financial Markets Conduct Act 2013 This seminar will provide a practical overview of the new regime (including the key departures from the former regime under the Securities Act 1978) as it relates to offers of equity securities. Participants will then be better able to identify and overcome the challenges of the FMCA regime and maximise opportunities for their clients.

Learning Outcomes• Gain an understanding of the key differences between the former Securities Act regime and the new FMCA environment.

• Learn when and how the FMCA applies to offers of equity securities, as well as the exceptions and exemptions to the regime.

• Understand the potential liability of offerors and others under the regime and obtain practical guidance on how to mitigate liability.

Who should attend?Junior and intermediate corporate lawyers and general practitioners with significant corporate clients.

Presenters: Stephen Lowe, Partner, Chapman Tripp and Jeremy Gray, Senior Associate, Chapman TrippChair: Andrew Lewis, Principal, Andrew Lewis Law

Wednesday 29 July 2015 1pm – 2 pm

At your desk or on your portable device

1 CPD HOUR

Self-Represented and Vexatious Litigants – Civil Cases: Judicial Perspective and Practitioner’s Dilemma An increasing number of High Court cases involve self-represented litigants. Effective civil litigators need strategies and skills to deal with such situations. This webinar will provide invaluable insights into the Court’s role and how it strives to balance the interests at play. It will also provide practical guidance on how to advocate effectively when the other party self-represents.

• Gain a better understanding of the Court’s approach to self-represented, querulant and vexatious claimants, directors representing a limited liability company and the appointment of guardians ad litem.

• Recognise the duties and rights of counsel and identify the relevant Rules of Conduct and Client Care.

• Receive guidance on procedural considerations, including in relation to discovery, the admissibility of evidence, objections, procedure generally and costs.

• Learn useful strategies to manage the increased burden for counsel and reduce the risk of delays and/or complications.

• Learn to anticipate and better approach issues arising when engaging in settlement discussions with a self-represented person.

Who should attend?Civil litigators and lawyers practising in the civil law area in contentious matters involving self-represented persons.

Presenters: The Honourable Justice Wylie and Noel Ingram QC

7. 10 hour 8. On demands6. Webcast5. Forum

1. Seminar 2. Webinar 3. Workshop 4. Conference

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Live stream



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Selected CPD CPDTo view all ADLSI CPD & register: www.adls.org.nz/cpdEmail us: [email protected] Phone us: 09 303 5278

CPD in Brief

Strategies Around the Use and Analysis of Dispute Resolution Clauses Thursday 30 July 2015| 12pm-1pm Learn how best to advise clients on what form, if any, Dispute Resolution clauses might take and gain insights into how best to tailor them to suit clients’ needs.

Presenters: Paul Cogswell, Principal, Cogswell Law and Nick Gillies, Partner, Hesketh Henry

Privacy in the Digital Age: The Risks and Opportunities of New Technology Wednesday 5 August 2015| 12pm-1pmTechnology and social media are now inescapable aspects of modern life. Privacy issues have, as a result, become increasingly complex. It is essential for lawyers to know how their clients’ professional and personal privacy may be affected by technology and how to advise clients on avoiding privacy breaches or protecting them from unwanted attention.

Presenters: Daimhin Warner, Customer Governance & Privacy Manager, Sovereign Insurance; Joe Edwards, Senior Associate, Russell McVeagh

Courtroom Advocacy – The Essential Skills: Part 3 Tuesday 11 August 2015| 4pm-6.15pmThe next part in this well-received series will focus on procedure and objections. Attend this seminar to receive practical guidance with judicial insight on these two important topics. Attendance at the previous seminars in this series is not a prerequisite for this session.

Presenters: David Bigio, Barrister, Shortland Chambers and Adam Ross, Barrister, Shortland Chambers Chair: Her Honour Judge Mathers

Hot Topics in Commercial Leasing: Green Leases and Rent Guarantees Wednesday 12 August 2015| 12pm-1pm Commercial leases are subject to a number of external influences. For example, the emphasis on sustainability has seen a rise in the use of green leases. Being able to advise clients on the specific requirements of such leases, as well as the novel way in which operating expenses are dealt with in the context of them, is an important aspect of any commercial property lawyer’s practice. So too is the way in which rent guarantees have evolved recently with consequences for landlord and tenant. This webinar will look at both developments and provide insights into the particular opportunities and problems they present.

Presenters: Nick Wilson, Partner, Burton & Co and Emma Tonkin, Senior Associate, Kensington Swan

ADLSI LIVE STREAMINGBringing seminars to you,

wherever you are.Visit www.adls.org.nz/CPD

CPD On Demand

The Reviewable Attorney – Enduring Power of Attorney Update This practical session will enable practitioners to consider the “how to” of an application for review of the actions of an attorney acting under an EPA in light of recent case law, and will provide useful guidance on steps to take when drafting EPAs to reduce the possibility of review of attorney actions in future.

Presenter: Maria Kazmierow, Barrister and Mediator; Chair/Commentator: Tony Fortune, Partner, Fortune Manning

Unit Titles Unleashed: Practical Tips on Rules and CommitteesThis webinar provides a practical update on two key areas relating to Unit Titles, body corporate operational rules and committees. Receive practical tips on how to provide effective legal advice on committee conflicts of interest, disclosure of committee minutes, committee liability, delegated powers and the changes around the operational rules and how they influence the advice lawyers should provide to unit owners, body corporates and interested purchasers contemplating a set of rules.

Presenters: Joanna Pidgeon, Principal, Pidgeon Law and Liza Fry-Irvine, Senior Associate, Pidgeon Law

CPD Pricing

Delivery Method Member Pricing Non-Member Pricing

Webinar $75.00 + GST (= $86.25 incl. GST) $95.00 + GST (= $109.25 incl. GST)

Seminar (in person) $125.00 + GST (= $143.75 incl. GST) $180.00 + GST (= $207.00 incl. GST)

Seminar (live stream) $125.00 + GST (= $143.75 incl. GST) $180.00 + GST (= $207.00 incl. GST)

On Demand (1-hour recording) $85.00 + GST (= $97.75 incl. GST) $110.00 + GST (= $126.50 incl. GST)

On Demand (2-hour recording) $95.00 + GST (= $109.25 incl. GST) $130.00 + GST (= $149.50 incl. GST)

For group bookings for webinars & CPD On Demand, see the ADLSI website at: www.adls.org.nz/cpd/help-and-faqs/group-bookings/.











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WILL INQUIRIES LAW NEWSThe no-hassle way to source missing wills for

$80.50 (GST Included)Email to: [email protected]

Post to: Auckland District Law Society Inc., PO Box 58, Shortland Street, DX CP24001, Auckland 1140. Fax to: 09 309 3726

For enquiries phone: 09 303 5270

+ Wills

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

Dorothy Mary BATES, late of Edmund Hillary Village, 221 Abbotts Way, Remuera, Auckland, Retired, Aged 86 (Died 15’05’2015)

Marion BROWNE, late of 2/434 Te Atatu Road, Te Atatu Penninsula, Auckland, Aged 90 (Died 02’06’2015)

Leslie Roy CROFT, late of 100 Pauanui Boulevard, Pauanui, Business owner, Aged 84 (Died 08’04’2015)

Peri HETARAKA, late of 48 Airfield Road, Takanini, South Auckland, Truck Driver, Aged 61 (Died 05’06’2015)

LN

Lovegrove, Smith & Cotton lawyers in Australia will accept referrals & agency matters in any

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Stephen Smith & Conjoint Professor Kim Lovegrove (www.lsclawyers.com.au

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Are you a recent law graduate or newly admitted solicitor seeking real, practical experience in legal practice?

The Auckland Community Law Centre offers an Internship Programme for law graduates who wish to gain experience in a law firm and an opportunity to learn about the community law centres’ work. You will support our lawyers with legal research and drafting, and even have direct, supervised client contact.

Your internship will last for three or four months of full-time or near full-time work. You will work for at least 30 hours per week, but we are able to be relatively flexible to accommodate interns’ other commitments, such as part time work.

The Internship Programme is unpaid. However, in the three or four months that you would be an intern, you will be expected to use part of your time seeking a full time legal position. Many of our former volunteers and interns now have successful careers in a wide range of legal roles.

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has the required work experience and qualifications, it is imperative that the employer establishes a shortage. This is not required for intra-company transfer visas, however there are restrictions, as set out in the rules in the Operational Manual.

We also of course have employment-based residence options, but typically a corporation does not want to wait six to nine months for these to be processed. Usually, a temporary work visa solution is mandated.

In New Zealand, we have a further option which is immigration accreditation. In our dealings with corporate business immigration clients, we find that this solution is very often misunderstood or simply has not been considered by the human resources section of the company or by their business advisers. This does, however, require a subsidiary in New Zealand, but one advantage of accreditation is that the market test does not apply and the employer can select its employees globally, provided that the company remains compliant and the position involves remuneration of $55K or more. This is a two-year work-to-residence option, and is an option that is not available in other countries.

In summary, we find that corporate immigration solutions, either short-term or long-term, are poorly understood, not only by foreign corporations wanting to set up business in New Zealand, but also by their advisers. It is critical to engage a business immigration corporate adviser at an early stage.

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Continued from page 5, “Immigration issues and doing business in NZ”

LAWYERS – CORPORATE/COMMERCIAL PROPERTYBrown Partners is a boutique corporate law firm in Auckland. We are looking for two outstanding lawyers to join our thriving practice in Shortland Street.

We are inviting applications from first class lawyers with outstanding legal and communication skills and an impressive academic and career track record, who wish to work for a mix of high quality New Zealand and overseas clients on a broad range of interesting projects.

The right candidates will enjoy a high level of client contact and will be involved in diverse and challenging work within a small, supportive and close knit team who exhibit a culture of high performance and integrity.

The two roles for which we are recruiting are:

JUNIOR LAWYER – CORPORATE: 1-3 years corporate experienceJUNIOR – INTERMEDIATE LAWYER – COMMERCIAL PROPERTY: 2-5 years commercial property experienceIf you would like to become part of our team please email your CV in confidence to [email protected]


ADLSI, in association with the Auckland University Students Society (AULSS), has recently launched a pilot initiative which aims to connect 4th and 5th year law students from the University of Auckland seeking volunteer or paid work experience, with Auckland-based law firms offering such opportunities.

WANT ED

Work experience opportunities

for 4th and 5th year law students

INDEPENDENT VOICE OF LAW

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The programme also provides law firms with an opportunity to work with those students they may select, to help the firm with tasks that may require some additional assistance.If you, or your firm is able to offer a paid or volunteer work experience opportunity to a 4th or 5th year law student, you will be able to post the details free of charge on the ADLSI noticeboard at www.adls.org.nz.For more information on the work experience pilot programme, please contact ADLSI on (09) 303 5270 or email [email protected] Terms and conditions apply.

Offices Available at Chancery Chambers

Two large offices have recently become available in the centrally located ADLSI Chancery Chambers. These

spacious offices are both suitable for 2 – 3 people. Meeting room, kitchen and photocopier facilities available.

Please contact Monique on [email protected] or 09 303 5277 for more details.

We require a solicitor for our busy North Shore practice.

Experience in property transactions would be an advantage.

Apply in writing with CV and references (if any) to:

Solicitor, Donnell and Associates.

PO Box 334050, Sunnynook,Auckland 0743

Email: [email protected] 4430516.

SOLICITOR

We require a Legal Accountant for our busy North Shore practice.

Experience in MYOB and ASB Fastnet Business would

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Legal Accountant, Donnell and Associates.

PO Box 334050 Sunnynook,Auckland 0743,

Email: [email protected] Fax 443 0516.

LEGAL ACCOUNTANT


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