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LawTalk9 May 2014 · 841
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The opportunity is there for talented lawyers and partnerships seem keen to recognise it, hear your ideas and allow you to give it a go. – Govett Quilliam partner Alice Tocher.
Contents.Contents.Contents.Contents.Contents.
Turei Mackey
Page 4
TaranakiOpportunity fortalented lawyers
LawTalk takes a look at legal
practice in one of New Zealand’s regions – Taranaki.
Our Profession, Our People . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11Practising Well . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16What are the signs to look for that indicate someone you care about may be experiencing problems with their gambling?
The business of law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18If lawyers work in high trust teams, not only will their lives be pleasanter, but their practices will be more e� cient and more pro� table.
Gallavin on litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20In one of the 20th century’s most publicised miscarriage of justice cases, Hurricane Carter was convicted of a triple murder not once but twice and served 19 years in prison before his exoneration in 1985.
Courtroom practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21Jury practice – suggestions based on experience.Class action litigation – an important revolution in our legal culture.
Inspectors’ briefcase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24Reconciliations and certi� cation.
Financial markets law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25Raising equity funds under the new liberalised IPO.Financial Markets Conduct Act liability regime.
Law reform . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28A summary of the new workplace safety regime.
NZLS CLE upcoming programmes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30Law Foundation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32Letters to the Editor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33Coming up . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33Lawyers Complaints Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34Classified Advertising . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Regulars
Feature
1LawTalk 841 · 9 May 2014 ·
From the Law SocietyFrom the Law SocietyFrom the Law SocietyFrom the Law SocietyFrom the Law Society
Rajan Rai
Practising law can be very rewarding,
regardless of where you work. Just as there are particular attractions and rewards for those
practising in the big cities, there are particular rewards and bene� ts for those who work in the regions.
A good proportion of New Zealand’s lawyers work outside the four main cities of Auckland, Christchurch, Hamilton and Wellington (including the Hutt Valley). In fact 2,721, or 23.2%, of this country’s practising lawyers are based outside these main centres.
An even bigger percent-age, 35.6%, of New Zealand law � rms can be found out-side those four cities.
In this issue of LawTalk, we feature a snapshot of what it is like working as a lawyer
in one of the regions – Taranaki.The dairy industry probably comes to the
minds of most New Zealanders when they think about Taranaki, and this – along with agriculture generally – is an important aspect for many lawyers in our district. So, too, is the oil and gas industry, which is the biggest contributor to Taranaki’s GDP.
Over recent years I have heard or read the words “work-life balance” frequently. One of
the many appeals of working outside our four main population centres is that lawyers often � nd a preferable work-life balance. But that is just one of the attractions.
Diversity of practice is another. Quite often, too, there is an opportunity to specialise in one area of law while spending some time in general practice areas.
In my experience, and the experience of many others I have spoken to, working in the regions can provide a lawyer, particularly a younger lawyer, with exposure to a higher level of work compared with the colleagues they know who work in the four big cities. While that is not, of course, always the case, it does happen frequently.
There is also something about collegiality in smaller centres that has a di� erent quality. It shows in very many ways, again quite di� erently to the big city environment.
Interestingly, one of the reasons I have come to call Taranaki home – and the place I de� nitely prefer to practise – came about because of the compulsory “country service” that used to be a feature of teaching in New Zealand. My father was a teacher and undertook his “country service” near Stratford.
But there is anything but a compulsory aspect to my choice. I practise in Taranaki because that is my choice. There’s no other way I would like it to be.
Rajan Rai
New Zealand Law SocietyTaranaki branch President
2 · LawTalk 841 · 9 May 2014
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News PointsNews PointsNews PointsNews PointsNews Points
Judicial independence restoredA Turkish court decision that
preserves judicial independence and the separation of powers has been welcomed by the International Bar Association’s Human Rights Institute (IBAHRI).
The Turkish Judicial Reform Act 2014, signed into law by President Abdullah Gül on 26 February, aimed to restructure the governance of the judicial system in Turkey. In particular, the law altered the regulatory powers of the High Council of Judges and Prosecutors (HSYK), transferring control from the HSYK to the Minister of Justice on
matters including the appointment of judges, the management of judicial disciplinary investigations and the selection of judicial training personnel and HSYK sta� .
The Constitutional Court of Turkey recently overturned controversial provisions of this act. “Judicial independence is an essential foundation for any democratic system,” IBAHRI co-chair Baroness Helena Ken-nedy QC says in a 25 April media release. This “fundamental principle”, she notes, is protected under article 159 of the Turkish Constitution.
Access to justice for disabledThe United Nations will ask the
Government to explain whether New Zealand law provides access to justice for people with disabilities engaged in the statutory dispute resolution process with regard to adequate funding, procedural fairness and reliable evidentiary procedures under New Zealand’s Accident Compensation scheme, Acclaim Otago said in a 23 April media release.
Acclaim Otago received New Zealand Law Foundation funding to prepare a shadow report to the United Nations Committee responsible for the Convention on the Rights
of Persons with Disabilities.The Committee of Disability Experts met
in Geneva in mid-April for a pre-sessional working group. It has selected the most pressing issues around access to justice from Acclaim Otago’s report and the New Zealand Government must now prepare a formal and detailed response for the committee’s consideration.
“ACC was designed as a system to provide access to justice for all New Zealanders,” says Mr Warren Forster, the main author of the Acclaim Otago report. “We can now have a debate about how access to justice for people covered by ACC can be improved. The aim is to reconstruct ACC into a world-leading personal injury system that actually does what it was designed to do.”
First justice symposiumNew Zealand’s � rst Leading Justice
Symposium was held at Parliament on 29 April.
This symposium brought high-calibre experts together to discuss and share “valu-able insights on justice issues and how to address the changing nature of crime,” Justice
Minister Judith Collins said. International guests and panellists came from England, Australia and Singapore.
Ms Collins asked the symposium to take a 10-year horizon approach and provide the Government with fresh thinking around reducing both crime and victimisation.
3LawTalk 841 · 9 May 2014 ·
4 · LawTalk 841 · 9 May 2014
TaranakiFeature & photography by Turei Mackey
OPPORTUNITY FOR TALENTED LAWYERS
5LawTalk 841 · 9 May 2014 ·
Ever since he arrived in New
Zealand as a refugee from Idi Amin’s Uganda in the early 1970s, Taranaki Law Society branch President Rajan Rai has called the central North Island,
and in particular the region of Taranaki, home.Originally settling in Stratford, his father
served as a country teacher before moving his four children to Tokoroa where he worked in an accounting department. On graduating from the Otago University law school, Mr Rai began his legal career in Dannevirke before returning to Taranaki.
“In Dannevirke I was learning to draft wills, and farm conveyancing yet I wanted to get into litigation but there just wasn’t the scope there at the time,” he says.
“I really wanted to test myself in the area of litigation and gain further training in the profession. My uncle said his friend, a solicitor, was looking for a young lawyer to take on board
at his o� ces here in Stratford. That was back in 1984. Within two to three years I was, at least compared with my friends who went to the cities, doing work at a much higher level in the courts.”
He credits the support and network of lawyers around Taranaki and how he could approach senior solicitors with ease, asking if they could guide him on how to do various types of work correctly.
“Even in court if you did something ‘wrong’, the senior lawyers would critique you in a constructive manner about your performance.
“It just comes with the territory in a provincial area and while the young lawyers aren’t spoon feed, they will be helped after court on how they might have done something incorrectly or other ways to address a topic or issue, which is really the best education a new lawyer can receive.”
Areas of work for lawyersWhile there are lawyers who work in particular
Rajan RaiThe New Zealand Law Society’s Taranaki branch President, is a partner of Till Henderson in New Plymouth
6 · LawTalk 841 · 9 May 2014
� elds, many still work in general practice to bolster the workload and in the provinces generally a lawyer will have skills across a broad range, says Mr Rai.
“I could be doing a criminal law trial one week and the next, asset or estate planning with farm-ing clients on substantial assets. The following week it might involve working on leases for the regional or district council, so totally di� erent areas and not operating at a low level, which can bring about its own challenges.
“It does mean lawyers have to put in long hours covering a range of areas whereas it could have been easier, although not as economically sound, to lock myself into one area of practice and just maintain that.”
Lawyer collegialityRobert England, who works as partner at the Eltham o� ce of Thomson, O’Neil & Co, says while the collegiality among lawyers in the regions may not be as strong as it was in previous years, the tradition of assisting fellow lawyers is still there in some regard.
“It works for the bene� t of the clientele, I suppose, because it is a di� erent situation when you know you can converse with fellow lawyers, particularly if you need to convey an issue which has arisen.
“An example was when we had some company representatives visiting the area, we hosted a luncheon and invited fellow South Taranaki lawyers and gave a chance for us all as a group to discuss the important issues in Taranaki with the company.
“Now that is not to the disadvantage of the client obviously, and the better everyone is with the knowledge of certain issues, the better the relationships are between client and lawyers and the lawyer fraternity itself.”
Limited resources?Mr Rai says the myth that resources for lawyers are limited because they work in a rural area or a small town is no longer valid in today’s world.
“I think in the old days there might have been an element of truth there because libraries were so expensive to update and maintain.
“Although every law � rm had its library, and there was a Law Society library, it was probably not at the level of libraries in the big cities, so it was challenging at times to be able to put together the research.
“Of course now we all access those same resources online via digital services.”
65 57
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New Plymouth · 122 · 17.4 years
Location · Total practising lawyers · Average years in practice
Hawera · 14 · 21.6 years
Stratford · 6 · 27.1 years
Other · 12 · 13.4 years
Two biggest contributersto Taranaki's GDP
Oil & Gas
Agriculture
7LawTalk 841 · 9 May 2014 ·
If you had asked Alice Tocher in 2009 if
a career move to Taranaki would see her working in a highly technical industry while also becoming a partner of a law � rm, she would have queried moving to a part of the country she barely knew.
“In all honesty, I had only been to the Taranaki once before and that was as a child on a family vacation. So when my husband had to move here for work I started asking family and colleagues in Wellington about legal jobs in a region I knew little about.”
She was building her budding legal career in the Wairarapa and then Wellington, mainly in the area of property rights, when her husband had to move to Taranaki in 2010 for his work as a top dressing pilot.
After a recommendation from her sister’s � atmate, she successfully applied for a job at Govett Quilliam’s Inglewood o� ce and has since climbed the � rm’s career ladder with success.
Ms Tocher was recently made a partner at Govett Quilliam in New Plymouth at the age of 32 and has built a new career specialising in the oil and gas industry.
“I am really proud to have become a partner here at Govett Quilliam at such a young age, although I am aware that there are a few other partners my age at some of the other Taranaki � rms,” she says.
“When people ask me what are the di� erences to working in the provinces instead of a major city like Wellington I guess it would be that fast tracking in terms of career progression. The opportunity is there for talented lawyers and partnerships seem keen to recognise it, hear your ideas and allow you to give it a go.”
She says that one of the reasons law � rms in the provinces are seeking new lawyers to the region is providing a succession plan for their business.
“I arrived at a time when the � rm was look-ing around, wanting to create some long-term succession plans. The partners are very clear on that fact and I guess I was the enthusiastic lawyer who was proud to be here.”
She adds that some provincial � rms don’t have such succession plans in place and could be waiting for new lawyers to enter the region and come knocking on their door as she did.
“Those lawyers who grew up in provinces will know that you don’t regress there. In fact the opposite. There is a huge client base out there in provincial New Zealand for those lawyers if that’s what they want and you can mix a lovely lifestyle with good practice.”
Richard Natusch, 41, is currently in his
� rst legal job after being admitted in 2008. After 14 years working for Wellington City Council in various regulatory roles while studying law part-time at Victoria University Mr Natusch decided it was time to make the career change in 2013.
He joined Till Henderson in New Plymouth as a sta� solicitor last year, covering the general law work of property, sale purchases, estate, wills, power of attorney, deeds and gifting.
“I guess an advantage for me when I decided to become a lawyer was that I wasn’t � xated on staying in Wellington,” he says.
“Finishing my law degree I saw the job market in the main centres was highly competitive with many law graduates wanting to work in Wellington or Auckland.
“There has always been that hearsay of legal graduates who start a career in the provinces and say how they got more opportunities and responsibilities as a rookie lawyer. And for me my personal goal was to acquire as much experience and opportunity as possible, so I knew moving to the provinces was the best decision.”
Balance of work and lifeHe views his life in New Plymouth as hard-working but also relaxing compared to the life of a professional in a large city.
“The one enjoyment I’ve had moving to New Plymouth has been, in my opinion, the better lifestyle,” says Mr Natusch.
“You do the work but I never stay in the o� ce
New to the region
There is a huge client base out there in
provincial New Zealand
8 · LawTalk 841 · 9 May 2014
or continue work into the night at home. It is usually � nish at 5pm every day and enjoy the nice climate, or jog alongside the coastal area. Sounds rather simple but it does improve your output in work.
“The reality is a legal career is a very stressful one and it doesn’t matter which city or town
you work in as a lawyer, there will be that level of stress.
“You hear of horror stories about new or young lawyers being driven into the ground by work overload. But if you don’t have that balance between your work as a lawyer and life then really what’s the point?”
Farming, Oil and Gas“Economically speaking the region of
Taranaki has always been in strong health, at least stronger than most regions,” says Rajan Rai.
“This is due to the rural sector. The farming payouts are strong so the farmers have a lot of disposable income and they invest it. And the oil and gas industry is still going strong.”
When it comes to provincial New Zealand, the economic spine is traditionally linked to
farming – in Taranaki’s case a strong dairy farming sector, and with that comes a lot of work for rural-based lawyers.
“To be a rural lawyer you do need to have an interest in farming, because if you’re not then it probably isn’t worth it,” says Robert England.
“The more you know about farming the better lawyer you will be. If you know how a farm actually works on a day-to-day basis you are
Alice TocherIs a partner of Govett Quilliam in New Plymouth
9LawTalk 841 · 9 May 2014 ·
going to be that much better as a relationship property lawyer when it comes to giving advice to the farmer than if you didn’t.”
However not all work is done just in Taranaki. Mr England says clients who started o� with small dairy farms like to invest o� the farm to balance their investment strategies, which includes everything from buying commercial property in the Waikato to extra farmland in Southland.
“Our clients are all over New Zealand in the literal and commercial sense from Cape Reinga to the Blu� . And Taranaki is a lot like Southland in the respect that a lot of clients from the rural sector will invest outside of the provinces which opens our work beyond the borders of South Taranaki.”
Alongside a strong agriculture industry, Taranaki is also home to the nation’s oil and natural gas production and is estimated to generate $nz 2.5 billion in GDP for the country, making it the most pro� table Taranaki industry in terms of GDP.
While Alice Tocher works in other areas, includ-ing rural law, the majority of her work these days revolves around the oil and gas industry.
“Oil and gas is dealing with much of what I
already did in Wellington in property law, but in a much more speci� c industry. There is that huge focus around liabilities which has been a good area for me to sink my teeth into as well,” says Ms Tocher.
“Just being willing to try areas of practice that you originally thought you might not be initially interested in is a huge step in a place like Taranaki due to its unique economy.”
A secondment opportunity with two companies gave Ms Tocher an in-depth understanding of the oil and gas business and as a result she now helps manage a team at Govett Quilliam focusing speci� cally on the industry.
“Those secondments meant that as a lawyer I was being thrown into the deep end of an industry that uses its own type of language. A wave of jargon, abbreviations and anagrams would be hurled in your direction every day,” she says.
“I was the only legal person on the ground in Taranaki, working closely with a legal team of 30 based in Sydney. So I found it interesting with how Australian legal teams did things in comparison to New Zealand legal teams.”
Richard NatuschJoined Till Henderson in New Plymouth as a sta� solicitor last year
10 · LawTalk 841 · 9 May 2014
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Monica Ryan has re-joined Lane Neave as a partner after six years at another Christchurch law � rm. Monica’s practice focuses primarily on com-mercial property, trust and asset management and all aspects of rural and residential property transactions. Ashley
Taggart has been made a partner of Lane Neave. Ashley joined the � rm in 2006 and works in the commercial property team. He is experienced in commercial property
and corporate law, franchising and the acquisi-tion and divestment of businesses.
Anthea Coombes is now a senior associate in Glaister Ennor’s property team. Anthea was formerly a solicitor and then associ-ate with the � rm. New to Glaister Ennor is Christina Lee who joins as a solicitor in the family law team.
Gus Stewart has j o i n e d M a t t h e w s Law as an associate, advising on competi-tion, regulatory and consumer protection law. Before joining the � rm, Gus worked as an
in-house counsel at 2degrees and solicitor at Minter Ellison Rudd Watts. Matthews Law is a specialist competition law � rm based in Auckland.
Kensington Swan has appointed three new partners. Ish Fraser
is a property law spe-cialist with particular experience in leasing, transactional and seismic issues. He has been with the � rm for 24 years and will con-tinue working with the � rm’s other property partners: John Meads and Matthew Ockles-ton. Nicky McIndoe
practises resource management law. She has experience in the transport, energy and local government sec-tors, and assisting with consenting and board of inquiry matters. Nicole Xanthopol is a banking lawyer with an established reputa-tion in institutional and
corporate � nance transactions. She comes to the � rm from being a partner in the banking department at Linklaters in London.
David Chisnall has returned to the partner-ship of Bell Gully. David is a commercial property lawyer who specialises in the structuring, pro-curement and delivery of large-scale develop-
ment projects. He has led external legal teams advising public and private sector clients on many nationally signi� cant projects and joint ventures across various industries.
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Ashley TaggartAshley Taggart
Anthea CoombesAnthea Coombes Christina LeeChristina Lee
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Four lawyers have j o i n e d A n t h o n y Harper’s Auckland corporate advisory team. Geo� Hosking
joins the partnership, taking the number of partners in the Auck-land o� ce to 10. Geo� advises on all aspects of commercial law but with particular focus on mergers and acquisi-tions, IT and venture capital. Lydia Wallis
and Victoria Bayly
have joined the team as commercial/corpo-
rate solicitors. Victoria relocated to the Christchurch o� ce at the end of April. Luke
Bodle has been appointed as an associ-ate – corporate/commercial, specialising in intellectual property and technology, media and telecommunications.
Thompson Blackie Bid-dles has promoted Sam
Greenwood to associ-ate. Sam is experienced in commercial property law, specialising in acquisitions, disposals, syndication, leasing,
subdivision and unit title development projects. He has recently been engaged to lecture the property law paper for the Bachelor of Property at Auckland University.
Kris Morrison has been made a partner of Parry Field Lawyers. Kris has been part of the Parry Field team since 2002 and is a leader in the firm’s commercial/business
and immigration teams. He also has expe-rience in property, trusts, charities and intellectual property.
Hamilton sole practitioner Kerry
Burroughs was elected the Law Society’s Waikato Bay of Plenty branch President at the branch’s annual meeting on 16 April.
Mr Burroughs succeeds Bruce Hesketh, who stepped down after three years as branch President.
Being a lawyer was something Mr Bur-roughs always wanted to do, but he did not begin his working life in the law. He took the opportunity to join the � rst intake of the then new Waikato University Law Faculty, becoming one of the school’s � rst group of graduates.
He was admitted in 1994, the same year he married Nancy. He and Nancy have three children. Two are attending Otago Univers-ity and the youngest is in year 12 at a local high school.
In 1995, Mr Burroughs began practising, starting at Frankton Law. After three years there, he set up on his own account.
He has been a Waikato Bay of Plenty District Law Society and then branch Council member on and o� since 2004. He has also been the Law Society representative on the Hamilton District Court stakeholders committee. In 2011 and 2012 he served as the Vice-President of the Waikato Bay of Plenty branch.
The major issue he perceives for the next couple of years is “ensuring that we can provide cost-e� ective professional legal education to our members”, he says.
“Professional legal education is an issue that will concern all practitioners whether in sole practice, employed solicitors or in
New Waikato Bay of Plenty President
partnerships. It is important that continuing legal education becomes a stimulating experience and not a burden. I believe that with some vision this can easily be achieved.
“I would also like to encourage a re-emergence of a sense of collegiality within the profession to enable members to enjoy productive relationships in a congenial environment. I am also concerned that the welfare of younger lawyers is promoted and that they feel connected to the profession.”
The next Waikato Bay of Plenty Young
Lawyers event will be a court etiquette seminar presented by Hamilton barrister David O’Neill.
The seminar will be held at the Waikato Bay of Plenty Hamilton o� ce on 22 May at 5:30pm.
Attendance can qualify as one hour of CPD. The cost is $5 and drinks and nibbles will be provided. RSVP to Roxy Dhanjee at [email protected].
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“Empathy” is a personality trait
fundamental to a great employment lawyer, according to Dundas Street’s newest sta� member, David Traylor.
He speaks passionately about employ-ment law, a � eld he went into fresh from law school in 2006.
“Employment law is, second perhaps only to family law, in requiring empathy. A job is so connected to a person’s life and how they project themselves onto the world. It is very emotional and you need a good deal of empa-thy to deal with those situations.”
Insight and compas-sion help to build a relationship as a trusted advisor who really under-stands a client’s business.
A deep knowledge of a client’s business is crucial in order to be “very responsive, very accessible, and give clear correct advice,” he says.
Mr Traylor’s employ-ment law career began at Minter Ellison, when he joined the employment law team as a new graduate. He found the very human area of law a “nice fusion” of advisory and litigation work – and never looked back.
Like many young lawyers, after � ve years
Empathy key to employment law success
on the ground in New Zealand, he decided to pack a bag and explore overseas work opportunities
(and see the world). And, like many young lawyers, he ended
up living and working in London.Initially, he secured an in-house employ-
ment law advisor role at a “very large” � nan-cial services company. In this position he rose
to the unique challenges presented through an in-house role at the same time navigating his own way through “key di� erences” in the United Kingdom’s employment law.
After eight months, he moved to an employment law advisory position with the Treasury Solicitor’s Department.
The department describes itself as “a non-ministerial government department providing legal services to the majority of central government departments, often representing government departments and other publicly-funded bodies in England and Wales.”
E� ectively, it is the government’s law � rm, Mr Traylor says.
Mid-way through 2013, Mr Traylor and his wife decided to make a slow journey back to New Zealand (there were seven months and more than 25 countries along the way).
Now grounded at boutique law � rm Dun-das Street, Mr Traylor is re-establishing a place within the New Zealand employment law environment.
Dundas Street’s newest sta� member David Traylor (right). This was taken in Uganda, one of more than 25 countries he visited during a seven month journey back to New Zealand from the United Kingdom.
Insight and compassion
help to build a relationship as a trusted advisor
who really understands a
client’s business
13LawTalk 841 · 9 May 2014 ·
Corin Maberly has established Maberly
& Co, a commercial law � rm based in Auck-land. Before setting up Maberly & Co, Corin spent over � ve years as a partner in a boutique international law � rm. Zoë Aldam has joined Corin as a senior asso-ciate. Zoë worked with Corin at their previous firm. Corin and Zoë specialise in outsourc-ing, technology and telecommunications transactions.
property development and relationship property agreements.
Norris Ward McKinnon has appointed two new associates. Erin Burke is a senior member of the litigation and employment team, specialising in employment law. Phil
Hyde specialises in commercial contracts and large-scale commercial property deals and is a senior member of the commercial corporate team.
Anne Toohey has joined Canterbury Chambers in Christch-urch and is practising as a barrister sole. Anne previously prac-tised in both civil and criminal litigation at
Raymond Donnelly & Co in Christchurch and more recently at Crown Law in Wellington. Anne will be practising in all areas of civil litigation, including employment, insurance, judicial review and insolvency work.
Wynn Williams has made Richard Hern a litigation and insurance partner and Ash Hill
a corporate partner. Both Richard and Ash are based in Auckland. Richard was previously at a boutique insurance practice for 13 ½ years and before that was in-house at a major insurer. He is well known in the insurance market, particularly in the liability and health and life insurance area. He is also involved in
litigation and dispute resolution. Ash joins from a large national � rm. He specialises in corporate law including mergers and acquisi-tions, venture capital and private equity capital raising. He also has deal making capability and transactional experience. Guy
Carter joins the Wynn Williams’ litigation and dispute resolution team as a solicitor. James Bull joins the Auckland corporate team as law clerk. Jackson Roland joins the Auckland corporate team as a solicitor.
Gault Mitchell Law has made Lisa Fraser a partner. Lisa is origi-nally from Invercargill and joined the � rm in 2002. She has a particu-lar focus on advising clients on the estab-
lishment of family trusts, estate planning,
Newly elected Nelson branch
president Rob Somerville’s main goal is to ensure the branch remains a collegial place to practice law. The branch’s lawyers have “reasonably good” collegiality already (25% of the branch turned up to the latest Annual General Meeting ) – but it is important the city’s lawyers continue to know each other, Mr Somerville says.
Mr Somerville is well acquainted with most lawyers in the region, and has a broad understanding of the justice sector.
In 1997, he moved to the area from Whan-ganui to work as a general litigator. He then narrowed his focus to criminal and family law in 2002 and for the last four years has worked exclusively as a family lawyer.
However, he remains connected to the criminal justice system. He is Nelson’s Restorative Justice Trust chair. He says he holds this position because over the years he spent in the court “it is clear [to him] that victims need to have input in the justice system for everyone involved”.
He is also the District Inspector of Mental
Health in the area, and is hopeful he will be reappointed when his three year term is up for renewal in June. People detained by the state need to have good access to their legal rights, he says. “It is an important role and I enjoy meeting with the users of mental health services.”
Collegiality a priority for Nelson branch
Special Conditions for new construction contracts standards
Download introductory information from www.derekfirth.com or email [email protected]
nzs 3910:2013 Construction · nzs 3916:2013 Design and Construction · nzs 3917:2013 Term Maintenance
L AW F I R M N E W S
Our Profession · Our PeopleOur Profession · Our PeopleOur Profession · Our PeopleOur Profession · Our PeopleOur Profession · Our People
Erin BurkeErin Burke Corin MaberlyCorin Maberly
Zoë AldamZoë Aldam
Phil HydePhil Hyde
Richard HernRichard Hern
Ash HillAsh Hill
On the Move, Continued...
14 · LawTalk 841 · 9 May 2014
WhanganuiRebecca Alice DempseyHannah Kathryn Smith
AucklandAaron Maxwell AdamsLama Mamoon Kahil Ebrahim AlmoayedJames Thomas AshwinErina Margaret BaarsChristopher Lee BakerStephanie Rachel Ball
Sen BaoNicolette Susan BarrettHarriet Amy BeattieHamish Antony BeckettLuke Timothy BensonPeter Anthony BevanJessica Olive-Ann Walden BevinSarah Julia Bair Sophia BogleNicola Jane BrazendaleJohn Quentin BroadbentTallulah Rose Crowe BrowneKate Alexandra Michelle BushbyHenry John CairnsStephanie Ella CannAshooja ChandraRohan ChauhanRichard ChenFrancine Ying Lai ChyeJames Cameron ClelandRohan Stuart CookVaughn Akuhatu Ming-Fong Clyde Cooper
Delia Anne CormackMairead CusackLuke James Cut� eldDanielle Rebecca Du� eldCharlotte Emily ForsterCallum Stuart FredericRicha Sulochana GejjiMalvern GwizoVictoria Marijana HadlowNathan Edwin Hansen-Thorpe Kate Alexandra HaywoodKim-Sara Hope HohaiaNicholas Mark HornsteinXiao HuangFelicity Jane HullahRichard Douglas HutchisonSamuel Leonard Jackson Marion Grace KennedyDaniel Ki Hoon KimEddy KJ KimSohyum KimVaroon Vikash Kumar
Anna Jean Sumei LeeJoo Yeon LeenohKatherine Tessa Lynch-WatsonSte� any Lisha MeredithLaressa Angela MillsTafaogalupe MulitaloMichael Alexander MullinsThomas NkomoJared Graham NoonanFiona Jane O’MalleyAlice Louise Maie OsmanWaruna Lasintha PadmasiriArnan Pritesh ParbhuMikayla Anne PlawSharmila Devi PrasadSophie Evelyn Wyatt RileyAndrew Stewart RoseEdwin Jonathan SheppardMinjoon ShinAlice Josephine SneddenLaura Ellen StillsMegan Louise Strickett
Katriona Lilla TautauRaaniera Anaru Rawhio Te WhataAnneke Frances TheelenAndrea Pravina ThilliampalamNatalie Elizabeth TownRoderick John TurnerWilliam Peter WalshDavid Matthew WebbSophie WharamEdward Robert Craig WillisClaire Elizabeth Wilson
DunedinMaree Dawn Adams Rory James Barton Freiya Kathleen Campbell Emma Kate Hunter Bridget Victoria McClean Morton Maria Antonia Pozza
Rebecca Dempsey’s ad-
mission ceremony, in the Whan-ganui High Court on 23 April, was particularly special. Rebecca’s mother, Kathryn Crooks, moved the admission and the presid-ing judge was Rebecca’s aunt, Justice Sarah Katz.
Rebecca graduated from Otago University last year with a � rst class honours degree in law, having completed her degree requirements in Canada. She will be working at Simpson Grierson in Auckland.
It is not just her mother and aunt whose footsteps Rebecca is following. Her great grandfather was Dr Roy McElroy, a partner of McElroy, Duncan and Preddle in Auckland.
The New Zealand Law Society welcomes the following recently admitted lawyers to the profession
Welcome to the profession
Dr McElroy was also Mayor of Auckland from 1965 to 1968. Rebecca’s mother is a partner of Armstrong Barton and a former President of the Law Society’s Whanganui branch.
The New Zealand Law Foundation is
the primary sponsor for the Wellington Young Lawyers’ Committee’s second annual mooting competition.
The competition, which is also supported by the New Zealand Bar Association, starts this month and will conclude in June. The
Bar Association will provide group training to all participants and mentoring for semi-� nalists and � nalists.
The mooting competition will simulate an appellate court hearing in which teams of two counsel will be pitted against each other. Counsel will be required to submit
points of appeal and written submissions before the hearing.
The heats will feature 12 teams. The four highest ranking appellant and respondent teams will compete in the semi-� nals. In turn, the two highest ranking teams will compete for the title of the New Zealand Law Foundation YLC Mooting Competition Champions 2014.
Second annual moot
This was the award in the � rst New
Zealand case to grant exemplary damages for negligent conduct causing injury fol-lowing the implementation of the Accident Compensation Act 1972.
McLaren Transport Ltd v Somerville [1996] 3 NZLR 424 was a case where a garage employee over-in� ated a tractor tyre so negligently that it exploded, causing the plainti� serious injuries.
The award was upheld in the High Court by Justice Tipping. “Exemplary damages for negligence causing personal injury may be awarded if, but only if, the level of negligence is so high that it amounts to an outrageous and � agrant disregard for the plainti� ’s safety, meriting condemnation and punish-ment,” Justice Tipping said in his judgment.
$15,000Our Profession · Our PeopleOur Profession · Our PeopleOur Profession · Our PeopleOur Profession · Our PeopleOur Profession · Our People
Particularly special
Rebecca Dempsey (right) with her mother Kathryn Crooks (left) and aunt, Justice Sarah Katz.
15LawTalk 841 · 9 May 2014 ·
Practising WellPractising WellPractising WellPractising WellPractising Well
When people think of addiction or a
problem behaviour they often think of substances such as alcohol or drugs, but another common addiction which can have devastating impacts on individuals and their families is gambling.
Of course not everyone who goes to the casino on a Friday night or does the weekly lotto has a gambling problem. Like anything else, there is a broad spectrum from people who never gamble to people who lose eve-rything because of their gambling.
The di� erent levels are:• Social gambling is casual and fun. The
person may gain enjoyment from the gambling or social company associated with it.
• Professional gamblers make their living by gambling and consider it a profes-sion. They are skilled in the games they choose to play and are able to control both the amount of money and time spent gambling. Professional gamblers are not addicted to gambling. They patiently wait for the best bet and then try to win as much as they can.
• Heavy gambling is when the person gambles often or with large amounts of money, or both. Their moods and emotions are likely to depend on gambling.
• Problem gambling is when the person is less and less able to resist the impulse to gamble. The gambling a� ects their moods, relationships, work, study and � nances in a negative way.
• Compulsive gambling is when the person is unable to resist the impulse to gamble. The person is experiencing an addiction and their wellbeing is badly a� ected by the gambling.
Some people progress through each level over time. Others may reach the level of problem or compulsion very quickly and some may stick within the social gambling realm without ever experiencing any problems.
For those at the problem or compulsive end of the spectrum gambling is likely to also be a� ecting others around the person gambling.
Gambling has become a problem if it a� ects a person’s wellbeing in any way and is also a problem if it is a� ecting those around them.
So what are the signs to look for that indicate someone you care about may be
experiencing problems with their gambling?Gambling might be a problem if the
person is:• spending more money and time than
intended on gambling;• feeling life is boring when they are not
gambling;• � nding their family and friends are becom-
ing less important than their gambling;• seeing gambling as a way to get out of
debt;• taking unexplained absences from work;• constantly borrowing money to pay
ordinary bills or expenses;• start selling personal items, like their
TV or stereo, to get money or take other people’s property for the same reason;
• becoming secretive about money;• becoming secretive about where they are
and what they are doing;• starting to acquire new credit cards;• suddenly starting to avoid certain people
(eg, they might owe them money);• dipping into savings or other assets; or• losing interest in social activities or refus-
ing invitations they would usually accept.Someone with a gambling problem might try to cover up by:• coming up with rational and reasonable
excuses to explain absences (eg, working late, car breaking down, visiting friends, studying at the library);
• hiding bank and credit card statements, maybe saying the bank never sent them;
• o� ering excuses or telling lies to explain how they have lost money (eg, computer error in their pay, losing their wallet, unexpected expenses, bank made a mistake); or
• working overtime or getting a second job to cover debts.
But don’t despair, change is possibleIt takes persistence, patience and courage to change any behaviour, but it can be done and changing gambling behaviour is no di� erent. Addictions can be a large part of people’s strategies for coping with other distress.
That means that it is unwise to remove one coping strategy without replacing it with another. Recovery from addictions can
Gambling – when does it become a problem?By Melanie Shaw
16 · LawTalk 841 · 9 May 2014
therefore be a chance for people to reconsider their life as a whole, and – with the right support – change their life for the better.
It is not uncommon for people on a journey of recovery from addiction to have relapses. While these may be painful, they can also be seen as great opportunities for the person to learn more about what things in their life make them vulnerable to the addiction and put further strategies in place.
What can you do to help someone you are concerned about?It can be hard trying to help someone who gambles, especially if they do not think they have a problem or do not want to stop.
Discussing the issue directly can be con-fronting for both yourself and the person who gambles. So make sure you � nd a time that is suitable to have the discussion, focus the conversation on your concerns and their gambling behaviour.
Talk about what you are feeling. Describe the behaviour that makes you feel this way and the reasons for this. For example:
“I’m concerned about you coming home late at night and I don’t know where you’ve
been. I worry because anything could have happened to you, you might have been in an accident or you may have hurt yourself.”
Avoid “you” statements, such as, “you should…” or “you must…” as this can sound accusatory and blameful, which can lead to defensiveness, creating a communication barrier between you and the other person.
Ask for their feedback, for example: “What are your thoughts?”
By asking the other person to contribute to the conversation and letting them discuss their perspective, you are demonstrating that you are open and willing to listen without judging them.
Listen carefully and repeat back to them your understanding of what they said. This can help the person to feel understood.
Don’t be surprised if the person you are approaching is not ready for this discussion and don’t blame yourself if this is the case.
Try to remember that changing behaviour is a tricky process and people have to be ready to make the changes for themselves. But showing that you care enough to raise your concerns allows the person to know you are there for them when they are ready.
You can also provide them with the number
of the Gambling Helpline, 0800 654 655, which is a free, con� dential service open 24 hours where trained counsellors can support someone with their gambling issue as well as o� ering support to people a� ected by the person's gambling such as partners, colleagues and friends.
So if you have concerns about your own or someone else’s gambling there is help and support available. Don’t feel like you are alone in your situation. Reach out and make today the day you make a positive choice about your future.
Melanie Shaw has 20 years’ experience working in the mental health field and has specialised in trauma therapy work in the United King-dom where she has spent most of her career. While in New Zealand, Melanie has worked in in-patient settings as a senior clinician specialising in mental health rehabilitation and recovery with service users with high and complex needs. Melanie is now the mental health specialist at Lifeline Aotearoa where she works to support, develop and oversee mental health services with a significant focus on the National Depression Initiative and peer support services.
Where: By webcast or attend NZICA Conference Centre; 12-16 Nicholls Lane Parnell, Auckland.
Speakers: Justice Fogarty of the High Court of New Zealand (8.00 am – 8.55 am).
Topic: Unconscionability & the function of the maxims of equity; Prest v Petrodel Resources Ltd [2013] UKSC.
Juliet Moses, partner TGT Legal (9.00 – 9.55am)Topic: Winding up an express trust – Issues to consider.
TRUST SPECIAL INTEREST GROUP
20 May 2014/ 8-10am
15 July 2014/ 8-10am CPD? Yes it quali� es for CPD!Where: By webcast or attend NZICA Conference Centre; 12-16 Nicholls Lane Parnell, Auckland.
Speakers: Panel – Bill Patterson, partner Patterson Hopkins; Vanessa Bruton, partner TGT Legal; Pieter Holl, Pieter Holl and Associates Ltd.
Topic: Questions & Answers session: Trusts & property relationship; trusts & tax; trust issues generally.
WHAT DOES IT COST? You can webcast or attend just one meeting for $60.87 + GST and $121.74 + GST for two meetings. Annual subscription for a lawyer or accountant (who receive a discount using the promo-code: LAW2) is $200.00 + GST. There are 6 meetings a year. A further discount is available for firms registering more than one member.
WHO WEBCASTS/ATTENDS THE TRUST SPECIAL INTEREST GROUP? Members consist principally of accountants, lawyers and trust officers. Trust SIG is one of the larger Special Interest Groups run through NZICA. It has two lawyers and two accountants as co-convenors.
If you have a question regarding trusts and will be webcasting or attending the 15 July panel seminar, you are invited to send your questions to [email protected] by 1 July.
For further information regarding TSIG visit their webpages at www.nzica.com/auckland. To webcast contact David Blackwell at NZICA, Auckland ph (09) 917 5915 or [email protected].
UPCOMING MEETINGS
17LawTalk 841 · 9 May 2014 ·
The Business of LawThe Business of LawThe Business of LawThe Business of LawThe Business of Law
Someone asked me recently why I
write articles and I responded “Because I like to write and am interested in the dis-semination of good ideas, whether they are mine or someone else’s”.
Ideas about high trust teams particularly interest me because team functioning is central to the success of any venture involv-ing more than one person. Hence this article.
I am a linear thinker and used to think: “Here I am at point A. What is the quickest way to get from here to point B?”
Although this was a seemingly e� cient way to practise law, I now realise that sometimes one must “spend” some time to “save” even more time. My personal de� nition of e� ciency has evolved.
Lawyers tell me they aspire to have an e� cient team that does things right the � rst time, meets or exceeds client needs, has high morale, communicates well, has low turnover and so forth.
Despite these good intentions, time is money in the practice of law. It can be di� cult to have the time to invest in and develop one’s team members. If that happens, trust levels within a team can deteriorate. When trust levels drop, team e� ciency, e� ectiveness and productivity also su� er and revenue decreases. Lawyers who are too busy to invest time in their teams do so at their own peril.
Speed of trustIn his book The Speed of Trust, Stephen
Covey posits that trust is not just a soft, social virtue but is, in fact, a hard-edged economic driver.
It’s a skill that individuals and groups can learn, perfect and incorporate into how they work together to become more pro� table, collaborative and competitive. In other words, if lawyers work in high trust teams, not only will their lives be pleasanter, but their practices will be more e� cient and more pro� table.
When a team operates at the speed of trust, things get done more quickly and accurately, there is less “friction”, morale and
retention rates are higher and people have the information they need to do their jobs.
I often say that the only way I will now work with others is at the speed of trust. It’s just too ine� cient, frustrating and downright unpleasant to work any other way. Once one has worked at the speed of trust, believe me, there is no going back.
What di� erentiates teams that work at the speed of trust?
Such teams are those in which every team member has consistently high trust profes-sional relationships with every other team member. In other words, it starts one-on-one with each person and then generalises to the whole team. If even one relationship in the team is low trust, it will “infect” all of the other relationships and the team as a whole. It’s kind of like one rotten apple spoiling the whole basket.
Whether you are the team leader or a member of the team, it is your responsibility to have high trust professional relationships with everyone in your team.
Elements of High Trust Professional RelationshipsIndividual high trust professional relation-ships are based upon the following:
Interaction
The type of interaction that creates high trust professional relationships is that which occurs appropriately, frequently and is high quality. It must happen often enough that team members can rely on it.
The highest quality interactions are, of course, face-to-face, as these involve not only verbal content, but also facial expres-sions, body language, tone of voice and other nuances.
It’s not essential always to have face-to-face interactions, but it is essential that team members do so often enough that it sets the tone for telephone conversations, email correspondence and other remote communications.
The team needs to invest ongoing time and energy to build high trust professional relationships. The occasional team retreat, meeting or lengthy discussion may be admi-rable, but it alone will not su� ce.
This becomes both very important and challenging for teams whose members are geographically distant from each other and who work together remotely. Leaders of such teams would be well advised to invest regularly in getting the team physically together when possible and utilising video conferencing frequently.
Disclosure
An excellent way to erode trust is to fail to share critical information with someone else who is then surprised (often unpleasantly) to learn this information indirectly.
Even if team members have had a rela-tively high level of trust in the past, this will undermine it. Conversely, if team members and, in particular, the team leader, shares appropriate information with others and explains how the information impacts them, the team will be building high trust relationships.
This does not mean violating appropriate con� dences, but it does mean giving people the information they will need to make informed decisions about themselves, their work and their role in the workplace.
Flexibility
Some team managers can be described as “my way or the highway kind of people”, which is not a � attering description.
Flexibility that contributes to high trust means acknowledging that things can be suc-cessfully accomplished in various ways and being open minded when one collaborates with other team members.
This does not mean compromising excellence or moving towards mediocrity, but it does involve recognising that high performance comes in many shapes and sizes.
High trust team members tailor their interactions with each other to accommodate varied interests, capabilities and perspectives and they do this seamlessly and naturally.
They listen to each other respectfully, consider others’ suggestions, critically evaluate various approaches and together decide how to proceed.
This is � exibility and it’s important whether one is drafting a document, negotiating a settlement, making management decisions,
Lawyers, teams and the speed of trustBy Emily Morrow
18 · LawTalk 841 · 9 May 2014
interacting with a client or really anything else.It’s particularly important for the team
leader to be � exible. In� exible leaders sti� e creativity, intelligence and responsibility and often produce low functioning, anxious team members. Although in the short run low � exibility leadership might seem e� cient, in the long run, it’s exceedingly ine� cient and counter productive. Count on it.
Consistency over time
If you who have had a child and/or a pet, you will know it’s critically important to be consistent in raising them.
If they are greeted with love and sup-port on one occasion and then inexplicably experience anger and rejection later, they may develop low levels of trust with others.
Adults are much the same. It’s impor-tant to be consistently consistent in your relationships with other people and to do so over time. Building trust is cumulative and iterative.
Good intentions
Interaction, disclosure, flexibility and consistency will not alone build a high trust professional relationship unless good intentions are part of the mix.
You must genuinely seek positive out-comes, want to support the success of others and be a good team player.
Merely paying lip service to good inten-tions is insu� cient, especially if your actions are at odds with what you say. If that occurs, you will be perceived as a hypocrite. Hypoc-risy and high trust are at opposite ends of the same spectrum.
Trust can be destroyed quickly and abruptly. Probably all of us have experienced this in a professional or personal context.
Conversely, building a high trust relation-ship usually occurs slowly and incrementally, based on multiple small and seemingly inconsequential interactions. When building high trust relationships, excellent com-munication, collaboration and “friction free” work experiences will, with practice and focus, increase over time.
Mary, the well-intentioned and motivated team builderMary is a senior partner in a successful law � rm and is a practice group head of depart-ment. She is clearly smart, hard working and wants to have a high functioning team.
However, when I interviewed her team members, some concerning themes emerged.
Although Mary can be delightful and accessible on a personal basis, she sometimes presents as being quite brusque, if not sharp,
when interrupted in her work. Team members � nd this o� putting and anxiety producing.
She is very focused on being highly e� cient in doing her work and sometimes does not invest much time in providing information to team members. Although Mary enjoys her team members and sometimes circulates “motivational” congratulatory emails to the team, she invests relatively little time in developing one-on-one relationships with them, learning about their lives outside of work and can be perceived as somewhat remote and cryptic.
When I provided Mary with this feedback, she was quite surprised.
To her considerable credit, however, Mary turned to me and said: “My top priority is to build a high trust team. I want to do this for the right reasons; that is to make sure that the work experience for everyone in my team
is as good as it can be. This is important, not just for � nancial reasons but because it is intrinsically right to do.”
She asked how she could enhance the level of trust between herself and her team members and among her team members.
Mary wants to lead her team by example.We discussed the “speed of trust” concept,
as well as the above � ve elements of high trust professional relationships. I asked Mary to “rate” herself, on a scale of 1 to 10 (10 being an excellent rating) on the � ve elements and she did so as follows:• Interaction: Social context 8; work context,
especially under stress, 2 or 3.• Disclosure: Low stress context 6 or 7; high
stress context 2 or 3.• Flexibility: 4 or 5.• Consistency over time: Consistently
volatile in her moods 4.• Good intentions: 9 or 10.Clearly, there was a direct correlation between Mary’s stress level and her ability to be interactive, disclosing and � exible. She needed to replace her consistent emotional
volatility with consistent lower emotional reactivity.
I then asked Mary to rate her motivation level to cultivate high trust professional relationships on the same 1 to 10 scale. She responded without hesitation “I’m at a 10 on that one”.
Mary then identi� ed speci� c ways to enhance her interactions with her team members. She correctly stated: “My team will respond to what I do, not what I say I am going to do”.
She committed to:• investing time getting to know each of
her team members better personally and professionally;
• being regularly available to team members by setting “o� ce hours” for them;
• scheduling a weekly team meeting in which she would solicit team interaction and actively listen; and
• monitoring her own stress level and iden-tifying techniques to calm herself down.
Mary has done well with these initiatives and has moved on to other techniques to improve her leadership style.
Her team members have noticed and commented on this and the general level of functioning is improving. It is a work in progress and it is moving in the right direction.
Although at � rst Mary felt her e� orts made her less e� cient when doing her own work, she now realises that it was an excellent use of her time to enhance everyone’s e� ciency.
How would you rate yourself on the above elements of high trust professional relation-ship building?
If you perceive any de� ciencies, think about what behaviours you will need to change, start making changes, and then watch carefully how others respond over time.
You will know when the team begins to work at the speed of trust; it will, simultane-ously, be both quite subtle and extraordinar-ily obvious.
Emily Morrow was a lawyer and senior partner with a large � rm in Vermont, where she built a premier trusts, estates and tax practice. Having lived and worked in Sydney and Vermont, Emily now resides in Auckland and provides tailored consulting services for lawyers, barristers, in-house counsel, law � rms and barristers’ chambers focusing on non-technical skills that correlate with professional success; business development, communication, delegation, self presentation, leadership, team building/management and the like. Emily can be reached at www.emilymorrow.com.
You must genuinely seek positive
outcomes, want to support the success of others and be a good team player
19LawTalk 841 · 9 May 2014 ·
Gallavin on LitigationGallavin on LitigationGallavin on LitigationGallavin on LitigationGallavin on Litigation
Monday 21 April 2014 – while we were
all enjoying a public holiday “Hurricane” Carter died in Toronto aged 76.
One of the 20th century’s most publicised miscarriage of justice cases, Hurricane Carter was convicted of a triple murder not once but twice and served 19 years in prison before his exoneration in 1985.
On releasing Carter, United States District Judge H Lee Sarokin stated that the prosecu-tion of Carter had been “predicated upon an appeal to racism rather than reason, and concealment rather than disclosure”.
A Bob Dylan song, many books and a Hollywood blockbuster all paid tribute to the man at the centre of a gross injustice the legal system seemed ill equipped to adequately remedy. Here, I do not attempt to draw parallels between New Zealand and the charged social and political environment of late 1960s USA. But miscarriages do happen and, despite the majority of cases that seem to progress uneventfully through our system every day, it is those cases that get stuck or are processed seemingly in de� ance of logic and open justice that come to represent the strength (or weakness) of our system as a whole.
Whatever one feels about the guilt or otherwise of David Bain, Peter Ellis, Mark Lundy, Scott Watson and Teina Pora, it is cases such as these that will and have come to represent our system. For many they become the poster cases for substantive and procedural unfairness the likes of which leave the system injured if not generally weakened in the minds of the populus.
When combined with a growing problem of access to justice across all jurisdictions (criminal, civil and family alike), one is faced with a serious problem of public fatigue the likes of which can erode key elements of societal cohesion, trust and the “kiwi-way” of fairness and equality (if there was ever such a thing in the � rst place).
Lawyers and particularly litigators play a signi� cant role in maintaining faith and engagement in the system of justice. What does not seem to be understood by
parliamentarians is that a well-run and well-resourced legal infrastructure (aka an accessible regime of practitioners) actually helps the system along. It works to prevent and not create backlogs and generally ensures that the mechanical components of the system are well oiled.
As litigators you may be generally under-stood as the ambulance at the bottom of the cli� , whereas the truth is often the opposite. Dissuading clients from litigation, particu-larly in light of recent procedural changes in both the civil and criminal jurisdictions, is as much a part of your practice as is the � ling and seeing through of litigation.
But not all problems are capable of a “legal � x” and on occasion some problems are made or exacerbated by the application of abstract legal principles. Enter Hurricane Carter stage left.
Rather than serving the notion of logic, the rational attainment of facts and a cor-responding connection with some form of “truth”, the law can sometimes truly be an ass.
In such circumstances an unfolding injus-tice will not be capable of remedy by the law. For these cases there is no assurance in the existence of multiple layers of appeal courts, the con� nement of problems to principles and the facilitation of argument around which the truth may be discovered.
In these cases the problem will often be with the base premise upon which the house of cards is built. The base problem may be with the quality of the science involved, the lack of training given to lawyers on how to deal with facts as opposed to abstract legal principles and ultimately the theory of cases from which the edi� ce of legal logic relies.
The system of appeal courts in a common law system is poorly equipped to deal with such foundational issues, with their ever decreasing authority to look at anything beyond narrow points of law – or facts only deemed important by a lawyer’s theory of the case.
So what of those cases that establish a far greater issue of fairness and justice than is possible to deal with through the application of the latest authority from the Supreme Court or Court of Appeal? Where
to for those problems?For many, they are already inexorably
caught up in the litigation trap. The ball having started rolling it quickly becomes impossible to stop the hurried shu� e neces-sary to stay on top. This combined with the fact that most litigators are ill equipped, in my view, to recognise the frailties of junk science or shonky evidence that can result in a case built upon a foundation of sand – while “to a hammer everything that looks like a nail” some problems are more primal than legal and require non-legal skill sets.
In the context of criminal cases, I advocate for the need of a criminal cases review panel. The resolution of many cases needs more than the application of legal minds. The multi-disciplinary approach possible through the likes of a criminal cases review panel is our best bet to avoid those cases that will, in 50 years, still come to de� ne our generation.
Dr Chris Gallavin is an Associate Professor and Dean of Law at Canterbury University. He has published extensively on criminal justice and on evidence and procedure in particular. He is the author of the appellant handbook, Evidence(LexisNexis, Wellington, 2008), and regularly undertakes consultant work in the area of the law of evidence.
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By Dr Chris Gallavin
20 · LawTalk 841 · 9 May 2014
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Details of what occurs behind the
closed doors of jury rooms remain largely unknown to judges and counsel, as all are disbarred from serving on juries. As a layperson having performed jury service I o� er a brief summary of my experiences, together with recommendations.
The subject of jury competence has received attention in recent years. Judge David Harvey (quoted in LawTalk 806, 12 October 2012), spoke on the need for “a proper educative process for jurors”.
In 1997 the Law Commission and Victoria University Faculty of Law undertook a sur-vey of 48 jury trials with the broad aim of identifying problems that juries experience. Their 2003 report Guide to Jury Trial Practicecovers much ground but did not consider the following three questions, which might have revealed signi� cant problems in jury rooms:• Did all members of the jury understand
and apply the judge’s directions?• Did the jury focus on considering evidence
presented in court?• Did jury members work together
harmoniously?In my limited experience, the answer to all three questions was “no”.
My observations are based on service in two criminal trials, both of which eventually resulted in unanimous verdicts. Both trial A and trial B involved multiple charges, each charge embodying several elements.
In trial B, each juror was provided with a � owchart summarising the elements of each charge. The jury found this feature helpful, but an element summary was lacking in trial A.
In both trials the jury was provided with two copies of the transcript of court proceed-ings. In the jury room these transcripts were referred to occasionally, but not in detail. In both trials, few jurors took notes in court. Juries A and B encountered di� erent sets of problems.
In jury A, education levels varied widely. Four members of the jury were recent immi-grants, and were to some extent handicapped by unfamiliarity with English in general and
Jury practiceSuggestions based on experience
3. The foreman was well able to see what was going on, but lacked the experience to control con� ict between aggressively opposed individuals in the room.
4. There was considerable debate but no agreement around the term “beyond reasonable doubt”.
On the basis of the above experiences, a few suggestions are o� ered. These changes could be in addition to – not instead of – instructions provided orally by any judge during any jury trial.I suggest the following four guidelines be provided in writing, available to every juror at the commencement of trials, and that judges should direct juries to pay close attention to these guidelines. Ideally this informa-tion should be written in plain English, be standardised nationwide, and be no more than one page long.1. Advice on selecting a foreperson, on the
importance of this process and on the kind of skills needed.
2. A reminder that a jury’s central task is to evaluate evidence presented in court and that societal generalisations should play no part in the process.
3. Advice on what path a jury should take if it believes any evidence implausible or any witness unreliable.
4. The meaning of the following key terms:• presumption of innocence;• onus of proof;• quality of evidence;• balance of probability; and• beyond reasonable doubt.
Printed summaries of the elements that apply to each charge would greatly assist any jury.
In addition, more care could be taken to screen out jurors with inadequate English. I have been called for jury service four times, and each time have heard the court o� cial in charge of ballots announce to the pool of prospective jurors that anyone who did not
with legal language in particular.In addition, there was unfamiliarity with
legal concepts. For example, two individuals struggled to grasp the concept of presump-tion of innocence, as in their own culture arrest is almost synonymous with guilt. Two others were inclined to make decisions based more on character than on evidence: “I think he is a bad man, so he is guilty”.
The foreman dealt patiently with these misunderstandings. Late in the evening, the entire court had to be reconvened so that the judge could repeat his explanation of the law underlying one element of one charge, a key point that the majority of the jury did not correctly recall from the judge’s closing remarks.
Jury B presented a fresh set of problems, even though all jurors were well educated and competent in English. Four factors contributed to dysfunction in the jury room.1. The judge’s directions were poorly
retained. In particular, little heed was paid to his clear advice that if one wit-ness or item of evidence was perceived to be implausible, that evidence should be put aside and attention should be directed towards other witnesses and other evidence. Instead, some on the jury tended to focus on the character and credibility of two witnesses (out of a total of eight witnesses), and on societal problems generally.
2. On the second day, the jury room became dominated by personal verbal attacks between di� erent factions of the jury, on matters barely related to the trial or to evidence. These attacks were more related to personal ideologies.
LawTalk has been provided two statements which say that this article does not con� ict in any way with the convention of jury deliberation inscrutability. One is from Professor Warren Brookbanks of Auckland University and the other from Judge Stan Thorburn. Professor Brookbanks added
that the article does not reveal information relevant to a particular trial or trials, but is simply commenting on aspects of process. And Judge Thorburn said that: “there is a huge need for impediments that might reign to be revealed for what they are and be outed, surely!”
Continued on following page ...
21LawTalk 841 · 9 May 2014 ·
feel con� dent with their level of English could come forward and be excused. These single brief announcements were indistinct and easily missed. Also, new citizens may be unwilling to publicly admit to being less than competent in English. It may be better, at the stage when jury service notices are sent out, to provide a one-page summary of juror responsibilities and legal terms – includ-ing perhaps those listed above – in order to give prospective jurors an indication of the level of English needed.
In order to reduce the possibility of the trials referred to in this article being identi� ed, the name of the author is not given. The author of this article is a science teacher and writer, with teaching experience in Britain, South Africa and New Zealand; and with several New Zealand textbooks to his name. He has travelled widely in Asia and Africa and has had a number of travel features published.
The traditional conception of
litigation is a process by which private indi-vidual rights and remedies are determined by a passive judge on a one-o� basis.
The lawyer in this picture is an independent professional providing dispassionate advice and advocacy as an agent for clients. Class action litigation raises some hard questions about the appropriate boundaries of civil litigation and the roles that should be played by judge, lawyer, plainti� and defendant. Resistance to this class action litigation may be explained, at least in part, by its incompatibility with our traditional notion of these roles.
New Zealand does not have the large plainti� law � rms that are such an estab-lished presence in Australia and the United States. But there is no reason to think that � rms that are capable of mobilising injured individuals into classes and have the skill and capability to conduct large litigation
will not emerge.Some smaller players in this � eld already
exist and lawyers have proved themselves as adaptable to changing trends in New Zealand as elsewhere. A conservative New Zealand legal culture may frown on “entre-preneurial” lawyers, equating them with “ambulance chasers”. The lawyer’s role in this context and the dilution of control by the immediate parties is seen as in tension with the traditional conception of a lawyer and civil litigation.
The values underlying the traditional approach have to be reconciled with the values which class action litigation pro-motes, in particular access to justice. Class action litigation can have social utility on a scale that is absent in most other litiga-tion. Attitudes which stand in its way merit close scrutiny.
Important mechanism for achieving public interest goalsThe class action procedure empowers indi-viduals to take proceedings in circumstances where the conduct which caused them harm would otherwise be left unchecked and the harm left without redress.
It makes it possible for the courts to grapple with conduct which can only properly be comprehended and responded to by examining its consequences for a group of people. It enables private enforcement of consumer protection laws and investor protections, and redress to be obtained for harm caused to large numbers of individuals by product failures and other torts. It also has the potential to achieve signi� cant collective good by enforcing environmental laws.
A number of the most signi� cant class action cases have sought redress for human rights abuses.
High pro� le cases include Konneh v State of New South Wales, the class action commenced in Australia in 2011 on behalf of children and young adults who had been wrongly arrested and jailed because of out of date or incorrect bail information in the New South Wales police computer system1 and Hilao v Estate of Marcos 103 F.3d 767 (9th Cir 1996) where a class of 10,000 Filipino victims who were tortured, summarily executed or “disappeared” by the Marcos regime took proceedings against Marcos (and his estate
Class action litigationAn important revolution in our legal culture when he died) in the United States under
the Alien Tort Claims Act and the Torture Victim Prevention Act.
Class action claims were � led against various Swiss banks on behalf of a class of Holocaust victims whose assets were wrongfully retained by private Swiss banks during and after World War II. They were settled for US$1.25 billion. Native Alaskans whose lives were a� ected by the 1989 Exxon Valdez oil spill ultimately obtained a US$507 million settlement from Exxon after � ling a class action proceeding.
Class action litigation is a powerful tool for achieving social change because it provides collective interests, often disadvantaged and vulnerable, with publicity and access to the power of the judiciary, which can be a catalyst for legislative reform.
Class action litigation in other jurisdictions has played an important role in raising awareness about health issues, such as faulty medical devices, dangerous impacts of medication and systemic failures in health monitoring. Improved standards in public health in Australia have been attributed to class action litigation regarding increases in exposure to Legionnaire’s disease.2 Class action litigation has been an important tool in advancing tobacco control in the United States.
Should we be concerned?Its opponents insist that if it is to be permit-ted, various safeguards should be put in place to guard against the “excesses” of United States-style class actions.
But problems observed with the US sys-tem – where all the action takes place at the certi� cation stage and the cases that are certi� ed are often settled – are simply never going to be a feature of the New Zealand system with its modest punitive damages awards, absence of large jury awards, limita-tions on contingency fees and potential for adverse costs awards.
The essential concerns appear to be that class actions, especially with the involvement of a litigation funder, pressure defendants into settling meritless claims and are unduly burdensome for defendants and the Court.
In general our legal system assumes that there is no requirement of symmetry or “equality of arms” between litigants. However the reality is that vast inequality of resources between parties in the adver-sarial context can work great injustice, and imbalances of power that are perpetuated
Courtroom PracticeCourtroom PracticeCourtroom PracticeCourtroom PracticeCourtroom Practice
By Liesle Theron
Jury practice: Suggestions based on experienceContinued...
22 · LawTalk 841 · 9 May 2014
in the courtroom can limit access to justice.Government and corporations are sys-
tematically better represented than the individuals who take them on. Class actions represent one means by which this imbal-ance can be addressed. As commentators have pointed out, it is therefore ironic that the concerns expressed about asymmetry created by powerful class plainti� s putting inappropriate pressure on defendants have gained so much traction.3
The argument that class actions are unduly burdensome is also, at a minimum, unduly simplistic. If the alternative is the � ling of thousands of individual claims then the class action is an important tool to ensure the e� cient and e� ective use of court time and to avoid overburdening the courts and defendants.
Class actions o� er e� ciencies by enabling economies of scale to operate in litigation. In New Zealand the courts have come under pressure from the large number of claims arising from the leaky building crisis and from the Christchurch earthquakes. Group-ing claims together through a class action procedure is one obvious solution, especially if the determination of a preliminary issue
will lead to the resolution of the claims.
Tools exist to address abusesIt is hard to believe that there is any real prospect that New Zealand defendants will settle meritless claims for large sums. Strike out and summary judgment are the obvious tools for preventing such an outcome. They are used to good e� ect by New Zealand defend-ants and place responsibility squarely on the judges to prevent meritless claims proceeding.
An aspect of the concern about the burden on defendants is the concern about plainti� s’ ability to pay costs. However this concern is not limited to class action litigation.
It can be addressed within the existing rules by an application for security for costs, which the courts are well-placed to determine by reference to established principles which directly address the values at stake. In exercising its discretion the court balances the importance of the plainti� s’ access to justice against the need to protect the defendant from unjusti� ed litigation. In this context the court will consider the merits of the case. It is likely that security for costs will be sought in many class actions, giving the court an early opportunity to consider
these questions.Like any litigation, and any complaints
procedure, there is the potential for abuse. There are mechanisms available to the parties and the courts for ensuring that class action litigation is conducted appropriately.
In applying these measures, and deter-mining whether additional safeguards are required, it is important that the potential for abuse be addressed proportionately and with sensitivity to the deterrent e� ects that relatively minor limitations can have.
In this context access to justice is a core value, and it is important that it not be denied to some of the most deserving plainti� s by regulating the procedure so that it becomes too di� cult to use.
Liesle Theron is a barrister at Thorndon Chambers. She has a wide-ranging civil and commercial litigation practice and advises clients on all aspects of commercial and public law.
1. For most recent developments, see Konneh v State of New South Wales (No 3) [2013] NSWSC 1424.
2. Australian Lawyers Alliance Submission to Australian productiv-ity commission Inquiry into Access to Justice 8 November 2013.
3. AD Lahav Symmetry and Class Action Litigation 60 UCLA L. Rev. 1494 (2013).
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23LawTalk 841 · 9 May 2014 ·
Inspectors’ BriefcaseInspectors’ BriefcaseInspectors’ BriefcaseInspectors’ BriefcaseInspectors’ Briefcase
This article covers several issues
that have been the source of recent inquiries.
Monthly reconciliation documentsAs discussed in LawTalk 839 page 24, a law � rm operating a trust account must ensure that all trust accounts, or their equivalents, are reconciled at least monthly.
Some trust account reconciliations can be di� cult for an inexperienced or unfamiliar reader to understand, let alone base any necessary corrective action thereon. This can often be the case when a lawyer’s attorney has to manage a practice under unusual circumstances.
Even for more experienced users and current Trust Account Supervisors (TAS) the e� ectiveness and quality of the rec-onciliations they are using can vary. This problem can be further compounded when less common or older trust account software is being used. All of these factors can lead to situations where even though the account appears to be reconciling, all is not strictly accurate.
Also it seems a number of law � rms may not be following 7.3 of the Trust Account Guidelines, which can reduce the e� ective-ness of their month end reconciliation work and can mean that Law Society reviews take longer than should normally be the case.
To mitigate this risk and to ensure that the e� ectiveness of all reconciliation work is retained, it is suggested that the following monthly work papers are prepared and collated for each trust account or equivalent:• the reconciliation itself;• the supporting cashbook/control account
summary for the target month;• the end-of-month bank statement;• an unpresented cheques listing with
numbers, dates and payees;• all adjustments for receipts not credited
or lodgements in transit;• any other adjustments for errors, either in
the control account or made by the bank;• a complete list of client balances, the
net total of which should equate to the
control account;• a printout of the journal transactions for
the target month;• the target month’s transaction ledger for
the � rm’s � oat account/� rm’s interest in trust/� rm’s account; and
• any printouts of relevant exception reports which could include debit balances, large balances, residual and dormant balances.
Reconciliation papers for each interest-bearing deposit (IBD) or term deposit facility would include the:• � rm’s listing of all deposits by client;• end-of-month bank statement detailing
each individual balance held; and• evidence of any total bank interest credited
quarterly. A client-by-client allocation may be requested by an Inspector to ensure correct allocations are being made.
If a � rm carries out lending, then together with the above information, the following listings are also required:• all contributors or lenders;• all borrowers; and• any amounts of interest or principal in
default.Firms are encouraged to retain their end-of-month collated documents in a folder with monthly indices separating the reconcilia-tions to prevent loss or misplacement and to facilitate easy reference.
A summary checklist or coversheet would further assist to act as a reminder for what documents need to be prepared and reviewed each month. This would also allow for the TAS to be advised of the reason for any missing information.
One clear purpose of completing such a collation to a high degree of detail and precision for a sole practitioner is that, should anything happen to the lawyer, any attorney operating the practice would have a definitive starting position for the trust account operation, based on the last month end. It remains the Inspector-ate’s experience that while many sole practitioners’ procedures are familiar to themselves, they are often confusing to locums or attorneys.
Any lawyer reading this who is an attorney for another practitioner is advised to check that the practitioner’s trust account reconciliations and month end procedures are well presented. This might also provide the opportunity for the attorney to ask the practitioner to provide access to the latest review of the trust account by the Inspectorate to ensure all is in order.
Late CertificationUnder Regulation 17of the Lawyers and Con-veyancers Act (Trust Account) Regulations 2008, every Trust Account Supervisor must certify to the NZLS by the tenth working day of each month (or in January the 15th working day) speci� c monthly information concerning the � rm’s trust account operations. Since February 2013 this certi� cation has been required to be made online.
From time to time situations arise for practitioners that prevent them from being able to submit their certi� cation on time. In all such circumstances, whether known in advance or arising at the time of � ling, it is imperative that the � rst course of action is to contact the NZLS advising of that fact. Contact is best made through Lucy Wesley at trustaccountcerti� [email protected], phone (04) 463 2974.
Once contact has been made and the problem discussed then a course of action can be determined. Please do not ignore advising the Society. It is not permitted to allow another sta� member to use the Trust Account Supervisor’s personal lawyer ID and password.
Where a pattern of late � ling arises with no communication or insu� cient explanation, and/or knowingly false declarations made, then the matter will be referred to a lawyers standards committee for inquiry.
If anyone has further questions or requires any assistance please contact the Law Soci-ety’s Inspectorate through the Financial Assurance Manager [email protected], phone (04) 463 2936.
Reconciliations and certificationBy Jeremy F Kennerley, Financial Assurance Manager
24 · LawTalk 841 · 9 May 2014
If a client company asks how to raise
funds where debt is not suitable, there is a new answer to add to the mix available since 1 April.
Perhaps an entrepreneurial company has an innovative product which still needs some development and the potential market looks attractive. Perhaps the company is relatively mature and very pro� table and the owner wishes to sell some shares to realise the asset for personal purposes. Do the provisions of the Financial Markets Conduct Act 2013 [FMCA] provide any new avenue for raising funds?
For the entrepreneur, for many years, the angel investment process has become well developed to provide funding for innovations. The angel process was necessary because the Securities Act 1978 prohibits public o� ers unless accompanied by a Prospectus and Investment Statement [P&IS] Disclosure. Costs made this route prohibitive for smaller amounts.
The unintended e� ect was that entre-preneurial activity, wealth creation, job creation, and economic development were all hindered to a large degree for 35 years while the Securities Act has been in force.
The FMCA has provided a faster and more convenient one-step process which is likely to compete strongly with the angel process if not replace it completely. The new process is actually an old process. It is an Initial Public O� er. These new IPOs are authorised under FMCA Schedule 1 Clause 6 which succinctly excludes o� ers to the public from P&IS Disclosure requirements but only if the o� er is through the licenced intermediary.
The licencee acts as a guardian gateway to prevent irresponsible promoters presenting
inappropriate o� ers to the public. This device has to be praised as an excellent development allowing public fund-raising up to $2 million in any 12 months which should satisfy most SME and entrepreneurial companies [FMC Phase 1 Regs 2014 Schedule 1 Clause 4].
A rigorous FMA licensing process ensures the licencees are up to the task. Entrepre-neural companies can now approach an intended licencee such as IceHouse associate company The Snowball E� ect Ltd.
The only requirement for the fund-raising company is completion of a public o� er document. A template guide is provided for what investors typically want to know. The � exibility is important for start-up entrepreneurial companies which may need to emphasise di� erent strengths in di� erent areas. Anything which sells and everything that discloses should be included succinctly and accurately. [See FMCA Part 2 ss 19 to 23.]
There are new protections for investors. One signi� cant element about the crowd funding process is that investors are able to pose questions to companies. That will operate rather like buyers’ questions on the Trade Me auction site. The company IPO statement is therefore open to public scrutiny.
That could well prove a demanding process.Under clause 27 of the FMCA Phase 1
Regs 2014 Schedule 1, a condition for the crowd funding licence is to make a warning statement available so investors must read it.
The warning statement includes:• Equity crowd funding is risky. You may lose
your entire investment, and must be in a position to bear this risk without undue hardship.
• Issuers using this facility include new or rapidly growing ventures. Investment in these types of businesses is very speculative and carries high risks.
Omit these two sentences if the facility is con� ned to issuers for whom the sentences would be inapplicable (like a mature pro� t-able SMEs). The older shorter version was “caveat emptor”.
This warning must be seen in the light of the amount which an investor can invest. Consideration was given to limiting investors to, for example, $25,000 but picking any � gure created demarcation problems. So no limit is given other than the $2 million which the company can raise.
Financial Markets LawFinancial Markets LawFinancial Markets LawFinancial Markets LawFinancial Markets Law
Raising equity funds under the new liberalised IPOBy Miles Hayward-Ryan
Continued on following page ...
Photo by Ken Teegardin
25LawTalk 841 · 9 May 2014 ·
Financial literacy demands that education be the method for New Zealanders to grow wealth rather than the “prohibition” demand that people be protected from themselves. Licencees are free to add a warning that investors should limit investment to no more than 5% of their net worth. Such a warning would help protect licencees and applicant companies.
The licencee will be wanting to ensure that only projects which have a signi� cant chance of being funded are presented to the public.
During this early stage of crowd funded IPOs, it is relevant that there is 35 years of pent-up public frustration at being denied access to such ventures. Public interest may be high. The new equity crowd funding system provides much more succinct disclosure and is much more transparent and accountable. It is culture changing legislation.
A rare example of one prospect for crowd funding in the � nancial services sector is a system for comparing the performance of investment advisers.
For 80 years in the United States and 30 years in New Zealand, consumer investors have asked how they can compare investment advisers. The industry has never had an incentive to supply an answer. A proposal by Investment Advisers Performance Measures [IAPM] is before licencee Snowball E� ect to raise funds to provide just such a service. Lawyers and chartered accountants may be interested to � nd out just how that new service can help their referral process and risk management especially if also a trustee.
It should � rstly be noted that the previ-ous prohibitions about secondary market selling, typically undertaken by owners, has been substantially tightened. Owners who are “controllers” may not sell their shares without full P&IS disclosure. This is seemingly in contradiction to the liberalisa-tion contained in the FMCA to encourage business. However the owner no longer needs to attempt to sell shares though back street methods.
Owner “controllers” are now controlled by a new provision in FMCA Sch 1 Clause 33 which regulates sales made by controllers of the company which are not quoted / listed. Full P&IS disclosure is required.
Clause 34 now regulates the work-around where a sale by a controller is made to an exempt co-conspirator party who then on-sells. If the second sale is within 12 months and if that second sale was the intent, full P&IS disclosure is required. There is now very little point in looking for a work around. It is simpler and easier to get IPO funding.
FMCA Phase 1 Regs 2014 Regulation 16 [1] de� nes the crowd funding service as having a “principal” purpose of matching companies raising funds with investors seeking to invest relatively small amounts. Reg. 16[2] goes on to specify that the service also includes any “broking service” and operating a “trading facility” for companies that have raised funds on that platform.
This is a secondary market trading plat-form. It is a major advance for business everywhere in New Zealand which should be considered in advice to client companies. This is an SME / start-up stock exchange.
This most important addition to the IPO process means that such companies have an immediate liquidity for all shareholders. It is possible that many SME companies could seek to obtain that liquidity advantage.
It will be interesting to see how this new market develops and how it leads to more SMEs going on to the NZAX or NZX. For example, at this stage, the intent of the applicant start up IAPM is to move to a full listing.
It should also be noted that NZX has announced that is it is developing a new growth exchange operating in the greater than $10 million market capitalisation replac-ing NZAX. After � ve years, start-ups should have achieved that level. It seems that there will shortly be a full stock exchange continuum from start-up to genesis. All investors who enjoy stock markets should be highly supportive of this development.
Commercial lawyers and chartered accountants should acquaint themselves with the new rules in order to help clients participate in the new evolution of growth capital markets. The � rst tranche of IPOs is expected to start this month when FMA will have completed the � rst licencing processes. Registering for updates is easy and available now at www.snowballe� ect.co.nz.
For the FMA and industry educators, the IPO investor warning includes the statement to “seek independent � nancial advice”.
The problem is that no one is authorised in New Zealand to provide � nancial advice on start-up ventures. AFAs must pass exams or provide proof of experience. Those exams do not include start-up venture assessment. [Standard Set D Course 25648 Element 5]. Some unknown AFAs may claim their experience is enough but no such claim has been found. This topic requires further exploration by parties interested in the investment adviser industry and growth companies versus managed funds.
A solution is needed for those angel inves-tors who may be feeling the cold winds of change. Perhaps they could approach the powerfully developing licencees with the idea that the angels become mentors for the applicant companies.
An agreement would be needed to protect applicants and the licencee. Angel availability and potential investment participation at the front end on day one or as underwriting of the IPO in the event of a shortfall or both and announced before the public round could greatly enhance the prospects for all. Co-operation is better than competition in many circumstances, especially when the law has gone against you. Angels will need to adapt.
Miles Hayward-Ryan is an in-house corporate lawyer and founder director of IAPM which is applying for IPO funding. Any lawyer interested in further material about the issues raised in this article may contact Miles at (09) 413 5355, email [email protected] or see www.iapm.co.nz.
Financial Markets LawFinancial Markets LawFinancial Markets LawFinancial Markets LawFinancial Markets Law
26 · LawTalk 841 · 9 May 2014
2014 marks the start of a new era for
New Zealand’s � nancial markets – an ambi-tious and exciting period of change for mar-ket participants and investors. This is the seventh, and � nal, article in a series by the Financial Markets Authority (FMA) outlining the key changes, the impact they will have on the future of our � nancial markets and the role lawyers can play in helping achieve that change.
In this article we discuss the changes to the liability regime and highlight some of the new regulatory tools available to FMA under the Financial Markets Conduct Act 2013 (FMCA).
Changing liability landscapeThe FMCA simplifies what has been a complex liability regime in New Zealand’s � nancial markets. It adopts a system of escalating levels of liability introducing a new set of regulatory powers and infringement o� ences, and increases the emphasis on civil liability for contraventions. Serious criminal o� ences, which may result in imprisonment, are reserved for the most serious violations of the law. A key focus of the regime, with the expanded regulatory toolbox, is to ensure that the regulatory response to actual or potential misconduct is proportionate to the contravention.
Part 8While FMA’s powers and the o� ence provisions are present throughout the FMC Act, Part 8 speci� cally deals with FMA’s enforcement pow-ers, the High Court’s enforcement powers, civil liability including civil remedies and defences, banning orders, infringement o� ences, asset preservation orders and appeals.
Part 8 confers on FMA the power to make a range of orders including Direction Orders which may direct compliance with the Act and stipulate steps that must be taken to comply and Stop Orders which prohibits certain action. These orders are designed to enable FMA to proactively and swiftly respond to threats of harm to the market across a wide range of regulated activities.
Infringement noticesThe FMCA introduces the infringement notice regime which provides an e� ective regulatory response for minor compliance contraventions.
Civil liability regimeWhile shifting away from an emphasis on criminal liability, the FMCA provides a broader range of civil penalties and remedy provisions where issuers contravene the law, and where directors and others are involved in these contraventions. In pursuing a civil claim, FMA may apply to the High Court for orders including declarations of contravention, civil pecuniary penalties, and compensation orders.
These civil liability provisions are strict liability. A person who contravenes a civil liability provision is liable unless they make out a defence. People involved in a contraven-tion may be liable if they were an intentional participant in the primary contravention and had knowledge of all essential facts.
The FMCA provides robust defences for those who have good corporate governance structures and due diligence processes and procedures in place.
Criminal liabilityCriminal liability is now reserved for miscon-duct involving knowledge or recklessness. For example, o� erors of products will be
criminally liable for knowingly or recklessly making an o� er where there is defective disclosure. Directors will only be criminally liable if the o� er document was issued with their authority, permission or consent and they knew or were reckless about whether there was a defect.
What to expectFMA’s primary focus is to help market par-ticipants understand their obligations and to support honest and reasonable e� orts to comply. The FMCA equips FMA with a wide range of powers enabling FMA to act swiftly to minimise harms to the market and to protect investors.
Raising investor con� dence and promoting the integrity of the market is at the core of the new regime and will guide FMA’s use of these powers.
FMA encourages legal advisers to work with their clients to focus on high standards of corporate governance where the interests of investors are promoted and protected in the course of the � nancial services and products that are o� ered. Those � nancial markets participants, who have high stand-ards of conduct, ethics and integrity at the core of their business activities, will be well placed to adapt to the requirements of the FMCA.
Keep an eye on the FMA website www.fma.govt.nz for more details or sign up to the FMA’s engagement site www.talktous.fma.govt.nz to receive regular updates.
Belinda Mo� at is Head of Enforcement at the Financial Markets Authority.
FMC Act liability regime
1 April 2014 – Part 8, Enforcement, Liability and Appeals came into force (excluding ss 470 to 473 which relate to certain FMA orders and ss 510 and 511 which relate to o� ences for defective disclosure).
1 December 2014 – The remainder of Part 8 comes into force (ss 470 to 473, 510 and 511).
For more details about the timeline for change go to www.fma.govt.nz/keep-updated/the-future-of-� nancial-markets/timeline-for-change/.
By Belinda Moffat
Key dates
Financial Markets LawFinancial Markets LawFinancial Markets LawFinancial Markets LawFinancial Markets Law
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27LawTalk 841 · 9 May 2014 ·
Law ReformLaw ReformLaw ReformLaw ReformLaw Reform
The much awaited Health and Safety
Reform Bill has now been introduced into Parliament. The Bill is part of the package of changes that have been introduced following the Pike River Coal Mine Tragedy and various subsequent reviews which have observed a poor health and safety record in New Zealand. The Bill is before the Transport and Industrial Relations Select Committee and submissions close today, 9 May.
The Bill is based on the Australian Model Work Health and Safety Act 2011 with some modi� cations for the New Zealand context. So what are the key changes proposed by the Bill, and what will be the likely impact of those changes in practice?
New defined termsPerson Conducting a Business
or Undertaking
A key aspect of the Bill is the creation of a new duty holder, known as a Person Conducting a Business or Undertaking (PCBU). A PCBU means a person conducting a business or undertaking:• whether the person conducts a business
or undertaking alone or with others; and• whether or not the business or undertaking
is conducted for pro� t or gain.The PCBU is a broad concept, which will encompass the existing duty holder cat-egories (such as employers, principals, and persons in control of a place of work) under the Health and Safety in Employment Act 1992 (HSE Act). A PCBU does not include employees or directors of PCBUs (directors are covered as o� cers – see below), volunteer associations, and occupiers of a home who employ or engage another person solely to do residential work.
Worker
A “worker” is de� ned as a person who carries out work in any capacity for a PCBU, includ-ing work as an employee, a contractor or subcontractor, an employee of a contractor
A summary of the new workplace safety regimeBy Philip McCarthy or subcontractor or an employee of a labour
hire company who has been assigned to work for the PCBU, an outworker, an apprentice or trainee, a person gaining work experience or undertaking a work trial, a volunteer or a person of a prescribed class.
The Bill’s de� nition is broad, and like the PCBU de� nition is designed to encompass a number of relationships that are typical in a work environment (such as employees, contractors, subcontractors, employees of contractors or subcontractors, volunteers and trainees).
Reasonably Practicable
The Bill will replace the current standard under the HSE Act (“All Practicable Steps”) with a new “reasonably practicable” stand-ard. “Reasonably practicable” is de� ned as: “…that which is, or was, at a particular time, reasonably able to be done in rela-tion to ensuring health and safety, taking into account and weighing up all relevant matters, including:• the likelihood of the hazard or the risk
concerned occurring;• the degree of harm that might result from
the hazard or risk;• what the person concerned knows, or
ought reasonably to know, about• the hazard or risk; and
• ways of eliminating or minimising the risk;
• the availability and suitability of ways to eliminate or minimise the risk; and
• after assessing the extent of the risk and available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.”The new standard is broadly similar to the
existing concept of “All Practicable Steps”, except that the assessment of costs must only be taken after the assessment of the risk and the ways to eliminate that risk. This means that costs will only take precedence over safety when the cost of taking a step is “grossly disproportionate” to the risk.
New dutiesPrimary Duty to Ensure Safety
The Bill introduces a new general duty on all PCBUs to ensure, so far as reasonably practicable, the health and safety of:• workers employed or engaged, or caused
to be employed or engaged, by the PCBU while the workers are at work in the busi-ness or undertaking; and
• workers whose activities in carrying out work are in� uenced or directed by the PCBU while the workers are carrying out the work.
PCBUs must also ensure, so far as reasonably practicable, that the health and safety of other people is not put at risk from work carried out by the PCBU.
There are also speci� c duties imposed on PCBUs in respect of:• the management and control of � xtures,
� ttings, and plant in the workplace;• the design and manufacture of plant to
be used in a workplace; and• the supply, importation and installation
of plant to be used in a workplace.
Officers
The Bill introduces a positive duty on o� cers to exercise due diligence to ensure that the PCBU complies with that duty or obligation. This is a key change from the HSE Act, where directors of a company can only be held liable where they have directly participated in, contributed to, or acquiesced in their company’s failure. Under the Bill, o� cers may be convicted for a breach of due diligence regardless of whether the PCBU has been
A person conducting a business or undertaking
must ensure, so far as reasonably
practicable, that the health and safety of other people is not
put at risk
28 · LawTalk 841 · 9 May 2014
convicted of an o� ence.Due diligence includes taking reasonable
steps to:• acquire, and keep up-to-date, knowledge
of work health and safety matters;• gain an understanding of the nature of the
operations of the business or undertaking of the PCBU and generally of the hazards and risks associated with those operations;
• ensure that the PCBU has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety;
• ensure that the PCBU has appropriate processes for receiving and considering information regarding incidents, hazards, and risks and for responding in a timely way to that information;
• ensure that the PCBU has, and imple-ments, a process for complying with any duty or obligation of the PCBU under the Act; and
• verify the provision and use of resources and processes.
OffencesThe Bill creates three o� ence tiers relating to breaches of the health and safety duties. The o� ences and the respective maximum penalties can be summarised as follows:• Reckless Conduct (has a duty and
exposes any person to whom the duty is owed to risk of death or serious injury/illness and is reckless as to that risk) – � nes up to $3 million (or $600,000 and/or up to � ve years’ imprisonment for individuals).
• Failure to comply with a Duty (with exposure to risk of death or serious injury/illness) – � nes up to $1.5 million (or $300,000 for individuals).
• Failure to comply with a Duty (no exposure to death or serious injury/ill-ness) – � nes up to $500,000 (or $100,000 for individuals).
In addition to the � nes and imprisonment that may be imposed, the Bill provides for new orders which the court may impose at sentencing:• Adverse publicity orders – requiring
the o� ender to publicise in a particular manner the o� ence, its consequences, and the penalty imposed.
• Restoration orders – requiring an o� ender to take speci� ed steps to remedy any matter caused by the o� ence.
• H&S project orders – requiring an o� ender to undertake a speci� c project for the general improvement of work health and safety.
• Court-ordered enforceable undertak-
ings – adjourning the proceeding for up to
two years, during which the o� ender under-takes to comply with certain conditions.
Where to next?Progress of the Bill through to legislation is already well under way. The Government has indicated that the Bill will be passed into law by the end of 2014, with an expected start date of 1 April 2015. Regulations necessary to support the new legislation will also be released for consultation this year.
The implementation of the new regime will see more onus placed on managers and
company directors to proactively manage workplace health and safety. Together with stronger penalties, and wider enforcement tools for non compliance, it is hoped that this regime will see improvement to New Zealand’s poor health and safety record.
Philip McCarthy is a solicitor with Auld Brewer Mazengarb & McEwen. Philip specialises in commercial litigation, employment law, and health and safety. Philip regularly advises clients in relation to investigations and enforcement action taken by WorkSafe New Zealand.
Photo by Trevor King
29LawTalk 841 · 9 May 2014 ·
CPDcalendarProgramme Presenters Content Where When
CIVIL LItIgatIon & EmPLoymEntIntroduction to High Court Civil Litigation Skills
Sandra GrantJohn HardieJudge Joyce QCNikki PenderPaul RadichTom Weston QC
This two-day workshop is an excellent opportunity for recently admitted practitioners to develop practical skills in civil litigation in an intense small-group workshop. Don’t miss this chance to ensure that you will be able to face a court case with confidence! You will improve your advocacy skills while you learn how to handle a single file from beginning to end, be able to identify and understand the various steps in the process, develop the practical skills you need to handle this, and a range of other litigation files, competently and confidently.
Auckland 1WellingtonAuckland 2 Christchurch
26 - 27 May20 - 21 Oct10 - 11 Nov24 - 25 Nov
Health and Safety Reforms
Dr Kathleen CallaghanSimon MitchellPenny Swarbrick
The new Health & Safety Reform Bill will replace the current Act, bringing in the most significant reforms in 20 years and, with WorkSafe, there is now a new and very different agency practitioners will need to understand and work with. This seminar will aim to provide a heightened awareness of the new Act, its wide ranging implications and its significantly increased penalty regime.
DunedinChristchurchWellingtonHamilton Auckland
3 Jun4 Jun10 Jun11 Jun12 Jun10 Jun
Using Human Rights Law in Litigation
Chair:Prof Paul Rishworth
It is becoming increasingly important to know how Human Rights can properly be used to influence the outcome of a case. This intensive will provide practical advice and guidance that will help the litigator to know when to play the Human Rights card and how to do so to best effect.
Wellington 25 Jun
Expert Witness Susan Hughes QC This two-day day programme follows the same learning-by-doing methods that have proved so successful in both the annual basic level NZLS CLE Litigation Skills Programme and the advanced course. It is entirely focussed on working with expert witnesses and you will also receive mentoring from experienced faculty members. The course is designed for all litigators from civil, criminal, family and other specialist jurisdictions with at least five years’ experience.
Wellington 26 - 27 Jun
Issues in Unjust Enrichment
Chair:Prof Peter Watts QC
Bringing you up to date with developments both here and abroad, this intensive takes stock of the law of restitution in New Zealand. Presenters will discuss key issues in unjust enrichment, how it affects obligations in contractual arrangements, including mistaken transfer, defences and restitution for wrongs.
WellingtonAuckland
23 Jul24 Jul
Litigation Skills Programme
Director:David Clark
This highly regarded residential week-long advocacy training course is open to applicants with at least two years’ litigation experience. Selected applicants will perform exercises and be critiqued, observe themselves through video review and observe faculty demonstrations. It’s hard work, great fun and most participants say it’s the most effective value-for-money course they’ve ever attended! applications close Friday 6 June 2014
Christchurch 24 - 30 Aug
ComPany, CommERCIaL & taxIntroduction to Company Law
John HornerBen JohnstonAndrew LeeteMark OdlinGraeme SwitzerDaniel Wong
This practical “transaction” based two-day workshop will equip you with the knowledge and understanding to deal with the purchase, establishment, operation and sale of a business.
AucklandWellingtonChristchurch
12 - 13 May19 - 20 May26 - 27 May
CRImInaLDuty Lawyer training Programme
Local Presenters Duty lawyers are critical to the smooth running of a District Court list. Here is a way to gain more of the knowledge and skills you need to join this important group. This workshop is made up of several parts. Visit www.lawyerseducation.co.nz for full course description, dates and locations.
Visiting centres around NZ
Feb - Nov
EnVIRonmEntaL LaWUpdate on Environmental Case Law
Vernon Rive This webinar will examine a number of recent, significant cases in the environmental field. It will also consider the key themes that are emerging from the case law in this area and reflect on what this means for practitioners on a practical basis.
23 May
FamILymediation for Lawyers: Part B – Family Law
Virginia GoldblattDenise Evans
For those with recent approved prior mediation training, including our Part A course. This programme will be an opportunity to practise mediation skills in the family law area and then to be assessed on them. Strictly limited numbers with pre-course work required.
Auckland 1Wellington 2Auckland 2
2 - 4 May22 - 24 Aug10 - 12 Oct
*CPD HRS may vary – please see brochure on website
9CPD HRS
3.5*CPD HRS
6CPD HRS
13.5CPD HRS
55CPD HRS
11*CPD HRS
15CPD HRS
13CPD HRS
Webinar
5.5CPD HRS
1CPD HRS
Webinar
Online registration and booklet purchases (with cheque, direct credit and credit card payment options) available at www.lawyerseducation.co.nz
Online registration and payment can be made at www.lawyerseducation.co.nz
Programme Presenters Content Where WhenFamILy
Understanding mediation – mediation for lawyers Part a
Virginia GoldblattGeoff Sharp
Mediation knowledge and skills are an increasingly important adjunct to legal practice. Many more clients are taking disputes to mediation (because it works) and the more that their legal advisers know about how it works the better. In addition, practice as a mediator extends the service that lawyers can offer the public.
WellingtonAuckland 2
25 - 27 Jul31 Oct - 2 Nov
PRoPERty & tRUStSProperty Law Conference
Chair:John Greenwood
The ever-changing pace of property law places new demands on practioners. We recommend you attend this year’s conference and take the opportunity to indulge yourself by up-skilling your knowledge. The programme will provide you with two days of stimulating engagement on topics of importance and interest concerning property law. Areas for discussion include: leases, ethics, developer’s expectations, property relationship agreements, health and safety reforms, unit titles, insurance, dispute resolution and much more.
Wellington 23 - 24 Jun
Residential Property transactions
Debra DorringtonSimon EllisLauchie GriffinNick KerneyDuncan Terris
This very popular two-day, limited-number workshop, for solicitors at the start of their property law career and legal executives with some experience, follows three files, from client instructions to settlement and beyond.
ChristchurchWellingtonHamiltonAuckland
30 Jun - 1 Jul28 - 29 Jul28 - 29 Jul11 - 12 Aug
Elder Law Intensive
Chair: Catherine Atchison
Attend this intensive to be updated on the constantly evolving issues in elder law. The presenters will discuss: capacity; enduring powers of attorney; elder abuse; privacy; trusts; new relationships; and they will look at future housing options for an ever-increasing and diverse elderly population.
WellingtonAuckland
14 May21 May
PRaCtICE & PRoFESSIonaL SkILLSStepping Up – foundation for practising on own account
Director: John Mackintosh
All lawyers wishing to practise on their own account, whether alone, in partnership, in an incorporated practice or as a barrister, will be required to complete this course. (Note: From 1 October 2012 all lawyers applying to be barristers sole are required to complete Stepping Up). Developed with the support of the New Zealand Law Foundation.
ChristchurchAuckland 2WellingtonAuckland 3
15 - 17 May3 - 5 Jul4 - 6 Sep6 - 8 Nov
Lawyer as negotiator
Jane Chart Building on your own experience, this one-and-a-half day workshop provides hands-on practice and feedback, as well as a conceptual framework for preparing for and undertaking negotiations. It examines different strategies and tactics, and offers tools for dealing with difficult negotiators, breaking impasses, and for addressing specific issues which you might wish to raise.
Wellington 1Wellington 2Auckland 2
20 - 21 May11 - 12 Nov18 - 19 Nov
trust account Supervisor training Programme
Jeremy KennerleyDavid LittlefairDavid ChapmanBob EadesLindsay Lloyd
To qualify as a trust account supervisor, you must complete 40-55 hours’ preparation, attend the assessment day and pass all assessments.
HamiltonWellingtonAuckland 2Christchurch
16 Jul18 Sep19 Nov26 Nov
Secrets of Success
Irene Joyce Understand the factors which make small to medium size firms successful, analyse how well your firm measures up and how to start implementing changes to improve your firm’s success.
DunedinChristchurchWellingtonHamiltonAuckland
30 Apr1 May14 May29 May5 Jun
Financial markets Conduct act – an introduction
Liam MasonJeremy MuirMark Stuart
Join this practical and interactive seminar designed to provide a conversion course from the old Securities Act (and related legislation) to the new, radically different and all-encompassing Act. You will learn the concepts behind the new Act, understand the timetable for implementation, and recognise when the Act applies. For all general practitioners.
DunedinChristchurchWellingtonAuckland
9 Jun10 Jun17 Jun18 Jun17 Jun
In SHoRt SEmInaR SERIES – aUCkLanDIncorporating your law firm? How to capture, transfer and retain value
Phil CreaghJai Basrur
Since the Lawyers and Conveyancers Act 2006 came into force, lawyers have been able to incorporate their practices, rather than being obliged to practice as partnerships. There are significant advantages in doing so. This seminar will assist lawyers considering the benefits and limitations of various practice models; how best to structure an incorporated firm and the valuation and shareholding implications.
Auckland 20 May
14.5CPD HRS
12.5CPD HRS
6CPD HRS
18.5CPD HRS
11.5CPD HRS
10*CPD HRS
3.5*CPD HRS
3.5*CPD HRS
2CPD HRS
Webinar
13CPD HRS
Brochures for CLE programmes are distributed with LawTalk. If you have not received a brochure for any of the programmes listed, please see www.lawyerseducation.co.nz or email [email protected] or contact CLE information, tel 0800 333 111.
CPDcalendarProgramme Presenters Content Where When
CIVIL LItIgatIon & EmPLoymEnt
ComPany, CommERCIaL & tax
CRImInaL
EnVIRonmEntaL LaW
FamILy
*CPD HRS may vary – please see brochure on website
9CPD HRS
3.5*CPD HRS
6CPD HRS
13.5CPD HRS
55CPD HRS
11*CPD HRS
15CPD HRS
13CPD HRS
Webinar
5.5CPD HRS
1CPD HRS
Webinar
Online registration and booklet purchases (with cheque, direct credit and credit card payment options) available at www.lawyerseducation.co.nz
Law FoundationLaw FoundationLaw FoundationLaw FoundationLaw Foundation
Overseas experts will take part in a
Law Foundation-supported forum next month that aims to continue the national debate on our constitutional arrangements.
The New Zealand Bill of Rights Act: Continuing the Conversation will take place on 3 June at the Legislative Council Chamber in Parliament, hosted by the Attorney-General, Chris Finlayson.
The forum follows last year’s thorough consulta-tion process by the Consti-tutional Advisory Panel, involving 100 meetings and more than 5,000 written submissions. A continued constitutional conversation was among the key recom-mendations of its report in November.
One of the forum organisers, Professor Andrew Geddis of Otago University, says that re-examination of the New Zealand Bill of Rights Act 1990 was another of the panel’s recommendations.
“Those of us with an academic interest in the Bill of Rights thought it would be useful to pick up where the panel left o� and engage those who think about these issues, including getting views from experienced overseas people from countries with bills of rights like ours, but with additional features,” he says.
Back in 1990 the Government decided that New Zealand’s Act should have only limited rights, which possibly are not comprehensive
enough now.“For example, privacy is now a much
more thought-about concept than it was back then.
“It’s not clear the Bill of Rights is working properly in terms of legislation being passed. A lot of the time, Parliament doesn’t pay any attention to it.
“There’s the question of whether the courts should have greater powers to use the Bill of Rights Act through, for example, a formal � nding to Parliament that there are problems with a piece of legislation.
“At the moment, the Bill of Rights Act can be changed by a simple major-ity. Should it be amended so that a super-majority is required for change?
“The Constitutional Advisory Panel didn’t have
a view on these things. It just said that they should be considered,” Professor Geddis says.
Features such as privacy rights are included in bills of rights laws in Australia and the United Kingdom, as are parliamentary committees charged with examining the compatibility of legislation with their bills of rights.
“This is a forum that enables professionals to agree on some things, if there is consensus to be found. If there isn’t consensus, that also tells us something. But you have to have the conversation,” he says.
The other organisers of the forum are Professor Claudia Geiringer of Victoria
Continuing the constitutional conversation
3 June, Legislative Council Chamber, Parliament. Morning session open to the public – three visiting experts will present papers:• Professor Stephen Gardbaum,
McArthur Foundation Professor of International Justice and Human Rights, UCLA Law School;
• Tom Hickman, Reader in Public Law, University College, London (note: Dr Hickman will also speak at Otago and Auckland law schools following this event); and
• Joanna Davidson, barrister and former Victoria Government Spe-cial Counsel for Human Rights, Melbourne.
To register, please visit: http://tinyurl.com/nzbora-conversation.
By Lynda Hagen University and Professor Paul Rishworth of Auckland University.
Last year the Law Foundation supported two events that helped promote debate around the Government’s constitutional review. These were a � ve-part debate series on National Radio in April and May, and a Victoria University Conference in August, Unearthing New Zealand’s Constitutional Traditions. Both were organised by the New Zealand Centre for Public Law.
Lynda Hagen is the Executive Director of the New Zealand Law Foundation.
Event detailsEvent detailsEvent detailsEvent detailsEvent details
There’s the question of
whether the courts should have greater
powers to use the Bill of Rights Act
32 · LawTalk 841 · 9 May 2014
Law Society advice on operating trust accountsI am concerned that the Law Society’s message concerning lawyers handling large quantities of cash may have been over-simpli� ed (Operating Trust Accounts, LawTalk 839, p24).
The core message appears to be that when a client wishes to deposit cash “of a large or frequent nature” into a lawyer’s trust account, the lawyer should “place the onus on the payer to bank the money”, after which the lawyer will issue a receipt.
The advice then mentions legislative obli-gations to report “suspicious transactions” under Financial Transactions Reporting Act 1996.
However, asking the client to deposit monies directly does not necessarily remove a law � rm from any obligation to report
suspicious transactions, nor potentially from the risk of facilitating money laundering.
The increasing legislative restrictions on money laundering have made it much harder to conceal the origins of at least $1.5 billion laundered in New Zealand each year, making lawyers’ trust accounts (temporarily exempt from the stricter Anti-Money Laundering and Countering Financing of Terrorism Act 2009) a preferred conduit for “cleaning” dirty money.
The message should be that all unusual � nancial activities (whether or not cash) should invite further enquiry by the lawyer involved; lest lawyers inadvertently get the impression they might receive a “get out of jail free” card by asking clients to bank their own cash about which lawyers harbour suspicions.
Ashley Balls
Legal Best Practice
Response by the Editor of LawTalk, Frank NeillThe New Zealand Law Society would not at any time suggest that lawyers attempt
to circumvent the provisions of any New Zealand legislation.
The Law Society, in fact, supports the legislative obligation to report “suspicious transactions” under the Financial Transac-tions Reporting Act 1996 (FTRA).
In the article, lawyers were advised that where there is “some suspicion” about the transaction, then a suspicious transaction report should be made to the Police Financial Intelligence Unit.
The article said that where cash deposits were either large or of a frequent nature, it was “reasonable” for lawyers to put the onus back on the payer to bank the money. This suggestion was made in the context of advice on accurately recording the amount to be banked and that it also removes any potential risk to the � rm and its sta� in physically taking the money to the bank to be deposited.
There was, and continues to be, no sug-gestion that lawyers could avoid any FTRA responsibilities by asking clients to bank cash themselves.
Letters to the EditorLetters to the EditorLetters to the EditorLetters to the EditorLetters to the Editor
Sports law symposiumThe Australia and New Zealand Sports Law Association (ANZSLA) will hold a one-day New Zealand Sports Law Symposium in Auckland on 16 May. The symposium will take place at Minter Ellison, 88 Shortland St. ANZSLA’s inaugural New Zealand sym-posium, the theme is Key Legal Challenges for New Zealand Sport. See http://anzsla.com/content/new-zealand-sports-law-symposium.
Sports law writing awardEntries are open for the Paul Trisley Award, which will be presented at the 2014 Australian and New Zealand Sports Law Association’s conference dinner in Adelaide on 23 October. Paul Trisley was a highly regarded sports lawyer and one of ANZSLA’s most dedicated members for many years. Paul died in 2001 and this award acknowledges his tremendous contribution to ANZSLA and the area of sports law generally. Entrants must email their paper in MS Word format to ANZSLA’s Executive Manager, [email protected] by 5 September. See www.anzsla.com.
Litigation forumThe IBA Annual Litigation Forum will be held in Montreal from 14 to 16 May. The conference theme is International Litigation: Crossing the Great Divide. See www.ibanet.org/Conferences/conferences_home.aspx.
Criminology congressThe 17th World Congress of Criminology will be held in Monterrey, Mexico, from 10 to 13 August. Organised by the International Society for Criminology, the congress has the theme Gangs, Tra� cking and Insecurity: Empowering the Community. See http://criminology2014.com.
ABA seasonal meetingThe American Bar Association (ABA) 2014 Fall Meeting will be held in Buenos Aires from 21 to 25 October. This will be the � rst ABA seasonal meeting in the southern hemisphere and it is shaping up to be one of the best. See www.americanbar.org/groups/international_law.html.
If you want to change the address
that your copy of LawTalk is sent to, you need to contact the New Zealand Law Society Registry.
The LawTalk address labels are gener-ated from the Registry database. If you change your address with Registry, it automatically changes your LawTalkdelivery address.
There is a form on the Law Society website to do this. It is at www.lawsociety.org.nz/for-lawyers/change-your-details. You can contact Registry at [email protected].
Changing your LawTalkdelivery address
Coming Up...
33LawTalk 841 · 9 May 2014 ·
S was a solicitor whose � rm acted
for the wife in separation proceedings. A transaction in the separation involved a conveyance of a new property to the wife, but the bank required the participation of the husband as a condition of providing � nance. S acted for both parties in this transaction.
A lawyers standards committee found this had breached the Rules of Conduct and Client Care and censured S.
The husband was initially represented by other solicitors in relation to an application
for an occupation order of the family home made by the wife. After negotiation between the lawyers, it was agreed that one of the steps in the separation was to be a sale of the family home.
The wife wanted to purchase another property with her share of the proceeds. When she applied to the bank for � nance to purchase the new property (before the sale of the family home had been completed), the bank refused to approve � nance without her husband joining in the application.
The husband did so without obtaining any legal advice.
Before settlement, S met with both the husband and wife to attend to disclosure of the loan agreement, to which both were to be party, and related matters. The husband’s lawyers were not involved, and did not know about the transaction. Settlement took place several days later.
When the family home � nally did sell, the bank refused to release the mortgage until $7,772.98 had been paid towards the
Acting for both parties not appropriate when interests differ
A lawyer, D, has been censured and
� ned for acting for a client, A, in respect of allegations made by A’s daughter at the same time as D was also acting for another client, B, who was alleged to have committed sexual o� ences against the daughter.
A complained, and a lawyers standards committee has determined that there was a clear con� ict of interest which D should have been careful to avoid.
When A’s daughter alleged that A had assaulted her, he instructed D to act for him in relation to the resulting care and protection proceedings.
At about the same time D had received legally aided instructions to act for B, who was charged with sexual o� ences against A’s daughter.
A discovered that D was acting for B when he saw her at B’s sentencing hearing. He complained to the Law Society about the con� ict of interest, and also that D had overcharged him and had not acted in a timely or e� ective manner while acting for him.
The standards committee said its primary concern was in relation to the allegations about con� ict of interest.
D canvassed this issue only brie� y in her response to the committee, but she did say that she believed A had known about her
instructions. A claimed, however, that he had known nothing about D acting for B until he saw her in court at the sentencing.
The standards committee said there was a clear con� ict of interest. It was reasonable to assume, the committee said, that there was a “real possibility” D could have held information in respect of one client which might be of signi� cant interest to the other.
This was, the committee said, a “clear breach” of Rules 6 and 6.1 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008. Rule 6 requires a lawyer to protect and promote the interests of the client, within the rules and the law, to the exclusion of the interests of third parties.
Rule 6.1 provides that a lawyer must not act for more than one client on a matter in any circumstances “where there is more than a negligible risk” that the lawyer may be unable to discharge the obligations owed to one or more of the clients.
The standards committee noted that the appearance of independence was also important. The committee said A was justi� ed in his concerns about D properly representing his interests when she was also acting for a person who had committed o� ences against his daughter.
D was unable to produce a � le note showing
she had advised A that she was also acting for B. The standards committee said that in any con� ict of interest situation, a prudent lawyer would make a � le note or record the issue in correspondence, with both clients.
B had not complained, but the standards committee said it was as concerned about the independence of the advice B had received as it was about the advice to A.
D said that B had pleaded guilty to the charges early on, and thus D’s primary role was concerned with B’s sentencing for the charges against A’s daughter. The standards committee’s investigation revealed, however, that D had been instructed to act for B before his plea, and that there had been some preliminary matters which had had to be dealt with before he pleaded guilty.
Given the clear con� ict of interest and established breach of the rules, the standards committee did not consider it was necessary to consider the other grounds of complaint.
The committee found that D’s conduct was unsatisfactory. As well as the censure and a $500 � ne, the committee ordered D to apologise, to refund the fees paid by the complainant and pay $500 costs to the Law Society. D was also required to attend the next ethics course that dealt with con� ict of interest issues.
Conflict of interest was a breach of the Rules
Lawyers Complaints ServiceLawyers Complaints ServiceLawyers Complaints ServiceLawyers Complaints ServiceLawyers Complaints Service
34 · LawTalk 841 · 9 May 2014
A barrister, D, failed to respond to
queries about the manner in which he had charged his client $38,000 for representa-tion in a criminal case. An investigation by a lawyers standards committee revealed that D had failed to render a � nal invoice and account of work undertaken and had deducted fees without rendering adequate invoices. The standards committee deter-mined that this was unsatisfactory conduct.
The committee � ned D $3,500 and ordered him to pay $1,500 costs.
The managing director of a company paid funds totalling $43,750 to the trust account of D’s instructing solicitor.
The instruction was in relation to drugs charges against three individuals and two related companies.
D acted for the clients for 18 months before the managing director of the client companies changed to new counsel.
Client care letters were sent at the begin-ning of the instruction, in which D’s fee of $1,000 per hour plus GST was agreed.
A barrister, E, was � ned $2,000 by a
lawyers standards committee after he failed to pay an invoice from a forensic scientist.
E had instructed a forensic scientist in November 2011 to provide advice in relation to a client matter. E had not paid the scientist’s fee of approximately $2,700, which was rendered to him by invoice in May 2012. The scientist complained to the Law Society.
A standards committee found that E had breached Rule 12.2 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008. This rule provides that where a lawyer instructs a third party on behalf of a client to render services, the lawyer is personally responsible for payment of the third party’s fees, costs, and expenses, in the absence of an arrangement to the contrary.
E had failed to pay the invoice and the committee determined that the breach of the rule was unsatisfactory conduct.
E had also failed to respond to the com-plaint despite being invited to do so.
The committee ordered E to pay the out-standing invoice within 14 days. As well as the � ne, E was ordered to pay $1,200 costs.
Barrister fined for failing to render invoices
mortgage on the wife’s new property. The wife agreed to repay the husband over time.
The husband complained that, in the meeting with his wife and S, he had signed a number of papers that a� ected his interests without proper advice nor an indication that he should seek independent legal advice. He said he had not had time to consider all the implications of the transaction.
Rule 6.1 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the Rules) provides that a lawyer must not act for more than one client on a matter where there is a “more than a negligible risk” that the lawyer may be unable to discharge the obligations to one or more of the clients.
S claimed he had received the husband’s informed consent, referring to the exception in Rule 6.1.1. This provides that, subject to Rule 6.1, a lawyer may act for more than one party in respect of the same transaction where the prior informed consent of all parties is obtained. Rules 6.1 states that a lawyer must not act for more than one client on a matter in any circumstances where there
is a more than negligible risk that the lawyer may be unable to discharge the obligations owed to one or more of the clients.
S said he had advised the husband to obtain independent legal advice, but the husband said he did not wish to do so. S did not, however, have a � le note to this e� ect, and the husband could not recall this part of the discussion.
The standards committee commented on the “clear dangers for both parties in [S] acting for them both” in the circumstances of this particular case.
S had clearly advised the wife of the risks to her in the arrangement. The standards committee said “the potential implications for [the husband]… could have been to his detriment and could not be protected satisfactorily by a practitioner who is obliged to act in the best interests of [the husband’s] former spouse.”
As a result there was “more than a neg-ligible risk” that S was unable to discharge his obligations to one or both of the parties.
Further, the husband did not have a
proper understanding of the risks for him in the transaction so he could not be seen as having given “informed consent” for S to act for him. The committee found that S had breached Rule 6.1 by acting where there were more than negligible risks for one or both parties.
The standards committee accepted that having one � rm act for both parties to a separation on resulting conveyancing transactions can often be an e� cient way to proceed, where the parties have a common purpose. However that is on the basis that independent legal advice is obtained to ensure that each party’s interests are adequately protected. This was not the case here.
S had also communicated with the hus-band directly, without communicating with the husband’s lawyers, in breach of Rule 10.2. While the occupation order application had by that time been discontinued, S made no enquiries as to whether the husband’s solicitors were still acting.
As well as censuring S, the committee ordered him to pay $1,000 costs.
Fined for not paying invoice
However, the clients reported that they received no invoices, and that they sought invoices and the return of any amount which was surplus to the amounts on the invoices. Despite numerous telephone calls and email requests, the managing director received no response from D. The clients complained to the Law Society.
The standards committee resolved to investigate, and appointed a costs assessor. Only one invoice for $10,000 was found. The � le, however, did disclose a considerable amount of work had been done by D and his sta� .
The committee considered the detail of the � le, the seriousness of the charges, the amount of work carried out, and noted that D’s fee had been agreed at $1,000 per hour.
The standards committee was unable to say that a fee which would have left no surplus from the payment of $43,750 was excessive in the circumstances.
However the failure to render invoices, and the failure to respond to the client’s queries were unsatisfactory conduct, the committee determined.
These actions were in breach of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, in particular Rule 3.2 (failure to respond to clients in a timely manner), Rule 9.3 (debiting fees without rendering invoices), and Rule 9.6 (failure to render a � nal account).
35LawTalk 841 · 9 May 2014 ·
Integrity Customer Focus Excellence Expertise
Inhouse Insurance SolicitorAuckland BasedWe are seeking a litigation solicitor with a minimum of three years’ PQE to join our busy team on a 12 month fixed term contract.You will need to be highly self motivated, extremely analytical, have proven problem solving skills, and be able to communicate succinctly across all levels within the business. Knowledge of insurance law would be highly desirable but is not a requirement.You will be required to manage Insurance litigation files which are run by our legal panel. The role is challenging and requires you to liaise closely with internal stakeholders including senior leaders across the business in NZ. You will be required to provide proactive, timely and practical advice on the litigation as well as liaising with our panel firms and senior external counsel. You will also be involved in providing advice on a wide range of issues relating to the Canterbury earthquakes and supporting the General and Life Insurance Team in providing advisory services to the business.Critical analysis, measurement and feedback on advice from our external legal partners will be expected.If you think you can meet the expectations of this challenging and exciting role, we want to hear from you.Vero is proud of our sensational staff culture. We are delighted to have achieved staff engagement and enablement scores above global high performing levels.Through our parent company, the Suncorp Group, we are part of one of the largest financial and insurance operations throughout Australia and New Zealand.Called Vero since 2003, we are a long-standing New Zealand general insurance company. We’ve been providing insurance products and services to help protect businesses and individuals against financial hardship arising from loss, liability or damage here for more than 130 years.Our four values - Integrity, Customer Focus, Excellence and Expertise are at the heart of everything we do.
To submit your application for this role please visit our careers site https://careers.vero.co.nz/ and enter the job code 31762.Closing date for applications is Thursday 22 May 2014.
Deputy Public Defender – Public Defence ServiceChristchurch (Vacancy 25540) and Wellington (Vacancy 25539)
The Public Defence Service (PDS) provides high quality legal advice and representation in a full range of legally aided criminal cases, aimed at helping people access justice, and promotes the values of integrity, fairness, consistency and high quality service to its clients. It also provides professional leadership of the Duty Lawyer Service.
We are seeking Deputy Public Defenders for both our Christchurch and Wellington offices, who will lead and continue to develop a high quality criminal legal aid defence service in those centres. As part of a professional and dynamic service, you will report to the Public Defender and be part of the Regional Management and Senior Leadership teams. The position requires excellent people management skills and the ability to run an office, including organisational planning and managing budgets.
We are seeking applications from well respected lawyers who have proven credibility with judges, peers and others in the legal community, with a speciality in criminal advocacy.
Your professional leadership and expertise in mentoring, coaching, training and criminal advocacy will ensure that lawyers within your Public Defence Service office are effective and well supported.
To apply, please go to the Ministry of Justice vacancies website http://careers.justice.govt.nz/Pages/Vacancies.aspx click on the position job title and follow the instructions.
Applications close on Monday, 19 May 2014.
WELLINGTON CBD - OFFICES TO LEASE
Zone Law, Intellectual Property and Business Law Firm currently have five to six offices available to sub-lease.
The office sizes are around 8 – 9 square metres. This is high quality space including common areas of kitchen, meeting rooms and break out areas. The building is located in the Wellington CBD at Level 14, Kordia House, 109-125 Willis Street. The earthquake rating is 88%.
The offices are modern, with a great view and lots of natural light. This space is $280/square metre plus GST plus incidentals on a pro rata basis.
Please contact Karen Doucas at [email protected] [email protected] [email protected] call 04 801 5040.
M O R R I S D I C K W E L L I N G T O NWould any lawyer holding a will for the above-named, late of 5/47 Puckey Avenue, Kaitaia, previously resident in Christchurch and Auckland, born on 7 October 1941, who died on 22 August 2011, please contact Andrea Miliona, David Shanahan, Lawyer:[email protected] 09 430 0674 | Fax 09 430 0758PO Box 1801, Whangarei 0140
M A L C O L M W A Y N E F O W L I EWould any lawyer holding a will for the above-named, late of 153 Hokianga Road, Dargaville, who died on 15 February 2014, please contact Ron Warne,
Hammonds Law, Solicitors:[email protected] 09 439 7099 | Fax 09 439 6464PO Box 16, Dargaville 0340 | DX AA23502
D A V I D A L B E R T N O R R I SWould any lawyer holding a will for the above-named, late of Christchurch, Retired Crane Driver, who died on 5 May 2013 aged 76 years, please contact Peter
J Tatham, Hornby Law:[email protected] 03 349 5111 | Fax 03 349 4876PO Box 16274, Hornby, Christchurch 8441
M A P U A T A G A L O A F E ’A OWould any lawyer holding a will for the above-named, late of 5 Heathberry Close, Papatoetoe, Auckland, born on 18 May 1949, who died on 17 November 2011, please contact Kimberly Knox, Pidgeon Law:[email protected] 09 337 0826 | Fax 09 337 0827PO Box 6535, Wellesley Street, Auckland 1141
M A T H E W L A U R I E N O V I SWould any lawyer holding a will for the above-named, late of Kaikoura, born on 20 September 1971, who died on 23 October 2013 at Tangimona, please contact Ian Farquhar Lawyer:[email protected] 07 378 1859 PO Box 1239, Taupo 3251
X I A O J I N G C H E N GWould any lawyer holding a will for the above-named, late of Dezhou, Shandong, born on 21 June 1990, Student, who died on 11 April 2014, please contact Benazir Din, Amicus Law:[email protected] 09 905 3688 | Fax 09 969 1492PO Box 68804, Newton 1145 | DX CP27004
TO L E AS E
W I L L S
S I T UAT I O N S VAC A N T
36 · LawTalk 841 · 9 May 2014
HEAD OF CORPORATE & INSTITUTIONAL
LEGAL
• Highly sought after leadership opportunity • Auckland CBD
Here is an exceptional opportunity for a high performing lawyer with specialist knowledge of institutional banking, financial markets, securities, trade and corporate law to join this market leading bank.
This is a key leadership role within the organisation. You will be responsible for managing a team and ensuring timely, accurate and high quality legal advice is provided to your internal clients. You and your team will provide transactional advice on the full range of financing arrangements offered by an institution of this calibre.
In addition, you will advise on all non-transactional legal work falling within the corporate and institutional sphere: providing advice on issues of product development, regulatory change and input into submissions or policy decisions on law changes affecting the business units. You will also assist with other legal projects when required.
You will drive performance across the wider legal team and contribute positively to the team culture.
Ideally you will bring to the role:
• Extensive legal experience gained in both law firms and in-house with a minimum of 10 years PQE along with staff management experience
• Specialist institutional banking, financial markets and securities legal transactional experience
• Strategic thinking and influencing skills with the ability to foster excellent working relationships
• Impeccable work standards and attention to detail.
Few senior in-house roles of this quality become available. With exposure to first rate work, a dynamic, high performance team culture and broad career development opportunities, this is a highly sought after position to seriously consider.
For a confidential discussion about this opportunity and to obtain a copy of the position description, please contact
Jennifer Williams at Williams Legal Recruitment on 09 446 6050 or email [email protected]
R E G I N A L D S Y D N E Y B R O W NWould any lawyer holding a will for the above-named, late of Tauranga, retired, born on 4 March 1924, who died on 2 March 2014 at Tauranga, please contact Ian Farquhar Lawyer:[email protected] | Ph 07 378 1859 | PO Box 1239, Taupo 3251
K E N N E T H C L A R K E T Y EWould any lawyer holding a will for the above-named, late of Mangakino and Reporoa, fencing contractor, born on 24 May 1944 at Te Awamutu, who died on 18 November 2011 at Hamilton, please contact Ian Farquhar Lawyer:[email protected] | Ph 07 378 1859 | PO Box 1239, Taupo 3251
W I L L S
REGISTRY
LISA ATTRILL, REGISTRY MANAGER
04 463 2916��0800 22 30 30,��04 463 2989
Bosselmann Heather Isobel Mary Samundsen Burke Emma Jane Howard Hannah TheresaHyde Rachel EmmaMcKeown Julia AlicePartington Kar-Yen AlanaSimpkin Tenille Jocelyn Trangmar Rachel Lisa Venz Anna JaneWakelin Craig MatthewWells Samuel (Sam) Raymond Williams Max Alan Curtin
ADMISSIONUnder Part 3 of the Lawyers and Conveyancers Act 2006
APPROVAL TO PRACTISE ON OWN ACCOUNTUnder s30 of the Lawyers and Conveyancers Act 2006
Cole Maria Ellen Harvey Miranda CarolineMiller Anita KimReuvecamp Iris Henriette VeraTarsau Melanie Peti Akata
Comments concerning the suitability of any of the above-named applicants for the certifi cate or approval being sought should be made in writing to me by 15 May 2014. Any submissions should be given on the understanding that they may be disclosed to the candidate.The Registry is now advertising names of candidates for certifi cates of character, practising certifi cates and approvals to practise on own account on the NZLS website at www.lawsociety.org.nz/for-lawyers/law-society-registry/applications-for-approval.
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37LawTalk 841 · 9 May 2014 ·
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