helpful insights from the employment court new land...

By Christine Chilwell, Principal, McElroys and member of ADLSI’s Employment Law Committee

Recently, their Honours Chief Judge Colgan and Judge Inglis visited the ADLSI Employment Law Committee (Committee) during its regular meeting.

Their Honours raised six topics: costs awards, the refreshment of the Employment Court website, recently introduced legislation, compensation for non-economic loss, the consequences of the J P Morgan case, and finally, the (probably unintended) consequences of the recent amendments to the Employment Relations Act 2000 (ERA) requiring the Employment Relations Authority (Authority) to give oral determinations wherever practicable.

This visit is an annual occasion. As always, it was very useful to hear from the Court on topical issues and to be able to give feedback in an informal setting, and the Committee was grateful for that opportunity.

This note outlines the issues and the discussions, and on the costs issue also outlines submissions recently made by the Committee.

Costs

The Court has engaged in a consultation process Continued on page 2

Merry Christmas

THIS ISSUE:

Helpful insights from the Employment Court Change in store for emissions trading?

New Land Transfer Act tax statements causing a headache

www.adls.org.nzISSUE 44 11 DECEMBER 2015

+ Update from ADLSI’s Employment Law Committee

JUDGES’ VISIT TOUCHES ON COSTS AND COMPENSATION

LAWNEWS

ADLSI celebrated the end of 2015 with its annual Christmas function on Thursday 3 December 2015. Guests enjoyed a lovely evening on Chancery Chambers’ rooftop terrace. Pictured here and looking ready for summer-

time are Michelle Burke, Mark Colthart, Peter Spring and Gillian Goodwin. For more photos from this event, please turn to pages 4 and 5.

with stakeholders to seek views on the current approach to costs, and the Committee made detailed written submissions in this process. There was a general view amongst Committee members that a scale along the lines of that in the High Court was warranted, although some members had reservations that this would entail lower costs awards than at present. The reason for these reservations was that lower costs awards together with the relatively low level of remedies in the employment jurisdiction might cumulatively deter litigants from bringing their cases to the Employment Court.

At the Committee meeting, Judge Inglis

told us that the Court has received a lot of feedback expressing a range of views, but with general support for a move towards a scale. The perceived advantages of a scale include consistency in awards, the parties being more able to assess costs at the outset, and being assisted to agree costs rather than spend the time and cost currently expended on applications for costs.

Other issues arising from the consultation process, and which led to some discussion at our meeting, included:

ISSUE 44, 11 DECEMBER 2015

Editor: Lisa Clark

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JUDGES’ VISIT TOUCHES ON COSTS AND COMPENSATION Continued from page 1

• Should costs for attending mediation and judicial settlement conferences be included in the scale? In our submissions, the Committee had proposed that allowance be made in the scale both for preparation for and attendance at a mediation or JSC following the commencement of Employment Court proceedings. The experience of Committee members is that parties to litigation rarely distinguish between the costs they have to pay to their lawyer or advocate for drafting pleadings or appearing in Court, and the costs they pay to the lawyer or advocate appearing for them at a mediation or a JSC. If ultimately successful, the parties are only interested in receiving a contribution towards the costs incurred, and it is often difficult to explain why mediation or JSC costs are not recoverable. Our submissions acknowledged that the normal rule in the High Court was that costs would not be awarded for mediation, but suggested that there was merit in allowing costs for this step at the Employment Court level, given that there will already have been a mediation in the Employment Relations Authority, generally with no costs implications.

• Should the scale distinguish between de novo and non de novo challenges? The draft scale submitted by the Committee provided slightly smaller time allocations for various steps for challenges as opposed to other proceedings, given that the parties will already have been through the Authority process and will not be starting from scratch. That said, it is the experience of Committee members that not a great deal of time is saved by a prior Authority hearing, and in particular the briefing process and preparation for trial for Employment Court challenges are still time intensive. This is because often the issues are different in the Court, and often there are more witnesses.

• The need to preserve flexibility. Their Honours pointed out that Clause 19 of Schedule 3 to the ERA requires the Court to exercise a broad discretion when awarding costs. Accordingly, it will need to be made clear that any scale is something which the Court may take into account, but which will not bind it.

• At the time of our meeting, the Court had not made a decision on whether to adopt a scale, but their Honours emphasised that if that decision is made, there will be a trial period. A guideline scale has now been adopted by the Court and is the subject of a Practice Note published on the Court’s website which will take effect in 2016 as a year-long trial.

Chief Judge Colgan also mentioned the recent decision of the Full Court of the Employment Court in Fagotti v Acme & Co Ltd [2015] NZEmpC 135, which reviewed generally the Authority’s practices concerning costs and affirmed that the Da Cruz approach is still appropriate in the Authority. (This is a tariff based approach, with adjustments according to the nature of the case, resulting generally in modest awards.)

Website

The Court website has been refreshed and it is hoped that it will be more user-friendly. In particular, their Honours told us that it is intended to update the judgments page weekly. They also noted that when searching for a judgment, the site redirects the search to NZLII. All judgments on this site are in HTML format. The Judges prefer the PDF format for unreported judgments, and there is a process for converting HTML documents to PDF on the website.

Precedent documents on the Court website have

been updated.

The website contains a helpful resource for litigants in person and witnesses explaining Court procedure. It will be useful to refer clients and witnesses to it for an understanding of those processes. See www.justice.govt.nz/courts/employment-court/how-the-court-works/at-the-hearing.

Recently introduced legislation

Their Honours drew the Committee’s attention to the recently introduced Employment Standards Legislation Bill (Bill). This is an omnibus Bill amending the Parental Leave and Employment Protection Act 1987, the ERA, the Holidays Act 2003, the Minimum Wage Act 1983 and the Wages Protection Act 1983.

The proposed amendments to the ERA include provision for the enforcement of minimum conditions. When enforcing minimum rights in the Authority, the parties will not be required to go to mediation, and the claim can go straight to an investigation meeting (there are exceptions in certain circumstances: Clause 97 of the Bill). Also, the Employment Court’s jurisdiction will be extended to include orders banning a person from being an employer, and fines for breach of a banning order (Clause 99).

The Minimum Wage (Contractors’ Remuneration) Bill has passed its first reading and gone to the Select Committee. If it passes into law, it will extend coverage of the Minimum Wage Act to specified contractors.

Compensation for non-economic loss

Their Honours referred to Hammond v Credit Union Baywide [2015] NZHRRT 6 and subsequent cases in the Human Rights Review Tribunal where the Tribunal has made significant awards of compensation for hurt, humiliation and injury to feelings. The award in Hammond was $98,000, and in a subsequent decision (now set aside), the Tribunal awarded compensation of $45,000 for humiliation, loss of dignity and injury to feelings (see Singh v Singh [2015] NZHRRT 8; [2015] NZHRRT 16). A contrast was drawn with levels in the Authority where the usual award is in the range of $5,000-$8,000. There was some discussion as to whether the level of awards in the HRRT could lead to an increase in awards in the Authority. Employment lawyers are watching this point with interest.

Christine Chilwell

Continued on page 8


+ Energy law, climate change

Government likely to scrap “one-for-two” ETS surrender obligation By Simon Watt, Partner, and Claire Harmsworth, Senior Associate, Bell Gully

The Government has sent a clear signal that arrangements put in place to ease the impact of the New Zealand Emissions Trading Scheme (ETS) on certain sectors during the Global Financial Crisis could be scrapped as early as next year.

The Ministry for the Environment has just released a discussion paper on the New Zealand Emissions Trading Scheme Review 2015/16. It made the current “one-for-two” surrender obligations a priority issue for submissions, along with managing the cost of moving to “full surrender” (one-for-one) obligations. Submissions on these issues will be due by 19 February 2016, while submissions on other issues can be made until 30 April 2016.

The current “one-for-two” obligations for participants in certain sectors, including liquid fossil fuels, industrial processes, stationary energy and waste, were introduced in 2009 and oblige those participants to acquire and surrender one New Zealand Unit (NZU) to account for every two tonnes of greenhouse gas emissions they produce. The discussion paper makes it clear this was a transitional measure linked to the GFC and the rationale for the looser scheme settings no longer exists.

The early timing of submission deadlines for these features would allow legislation to be passed in 2016 that could see the ‘one-for-two’ measure dropped by mid-2016 at the earliest, and it appears likely a change would be in force from the start of 2017 at the latest. Although this is a consultation document, the parallel focus on managing the cost of moving to tighter obligations reinforces the likelihood that the government is serious about dropping “one-for-two” and the issue is about what can be done to mitigate the change.

The overriding message is that the ETS settings will tighten.

Forestry will benefit – others will manage the cost

One sector that will benefit from tighter settings will be forestry. Forest plantings are clearly recognised as a key plank in achieving New Zealand’s emission reduction targets and the outcome of the review should result in settings more favourable to forestry in the long-term.

For adversely affected businesses, there are two main ways to manage the cost of moving to full surrender: seeking a gradual move to one-for-one obligations, or adjusting the emission unit price cap to mitigate the impact of any large upswing in carbon prices. Given the deadlines, businesses will need to mobilise quickly to express any views on the change or how to mitigate any transition.

The Government has ruled out any consideration of agriculture in this review. While there are some requirements in the sector to report on emissions, there is no obligation to surrender units to “pay” for those emissions.

Stockpiling drives tightening

The paper provides insight into some compelling fiscal reasons for the Government to return to tighter ETS settings. The current settings have contributed to “banking” or stockpiling of a large number of units. While these stockpiled units can be surrendered under the ETS after 2020, they will not count towards New Zealand meeting its 2030 emission reduction target. Unless the stockpile is significantly reduced before 2020 – which returning to one-for-one obligations would help to do – the Government faces a greater financial exposure itself. At today’s carbon prices there is a NZ$400 million exposure for government, and ultimately taxpayers, and that will grow if prices rise.

Prices are likely to be squeezed higher in the next four years, with policy settings pushing ETS compliance costs up. Re-opening of the ETS to international carbon credits, which might offer greater liquidity and potentially lower prices, is not an option until after 2020 because New Zealand opted out of the second round of Kyoto Protocol agreements.

It appears the Government is seeking to manage that change to ensure a steady trajectory toward tighter settings that avoids sudden and painful adjustments.

It is unlikely that any of the changes being discussed will be affected by the major United Nations Framework Convention on Climate Change, which will take place in Paris from 30 November to 11 December 2015. The goals set for that conference are about establishing a direction towards lower emissions and putting a framework around that, but will still take several years to firm up and implement.

Having ETS settings that provide a steady

Simon Watt

path towards emissions-reduction goals while maximising the opportunity of a trading scheme to achieve this more cost effectively will give businesses the certainty needed to enable planning and adjustment. If businesses accept there is a move to a more carbon-constrained future, then they should consider submitting their views on what would be a sustainable carbon price path over time.

Simon Watt is a partner at Bell Gully and specialises in climate change law and providing commercial and public law advice to public sector entities. Mr Watt advised the New Zealand Government on the development of the legal framework for trading in greenhouse gas emissions and on climate change legislation. He advises businesses domestically and internationally on carbon trading and on the implications of the Kyoto Protocol and New Zealand’s emissions trading scheme.

Claire Harmsworth is a senior associate. She advises a range of clients on climate change issues. She has advised various public and private sector clients on the application of the Emissions Trading Scheme and associated commercial agreements relating to pass-through of carbon liabilities, the sale and purchase of units, and deforestation liabilities as between landowners and forestry rights holders. Ms Harmsworth also regularly assists the Bell Gully property team in advising on forestry-related Emissions Trading Scheme considerations that are relevant to the purchase of forested land.

Bell Gully is a member of the All-of-Government panel for Environment and Resource Management. Its climate change team has at various times advised the Ministry for Business, Innovation and Employment, the New Zealand Government’s Emissions Trading Group and the Ministry for the Environment on the design of the New Zealand Emissions Trading Scheme (ETS) and associated legislation. The team’s international work has involved some of the nations that will be among those most affected by climate change.

Claire Harmsworth

LN


Dame Judith Potter and Gary Craig

Anna Fitzgibbon, Kirsty Swadling and the Hon Justice Ailsa Duffy

Frank Godinet, Kathryn Beck and Sir Ted Thomas

Her Honour Judge Sarah Fleming, Brian Keene QC and the Hon Justice Anne Hinton

The Christmas season got off to a promising start at this year’s ADLSI Christmas party, with well over 100 guests (including practitioners, barristers and members of the judiciary) taking the chance to relax and catch up with each other after a busy year.

A lovely sunny evening welcomed guests to the rooftop gardens at Chancery Chambers, where refreshments, good company and the soothing strains of the guitar created a relaxing al fresco atmosphere.

ADLSI would like to take this chance to thank all of our members, staff and supporters for their efforts and encouragement during 2015. We look forward to another great year in 2016.

+ ADLSI event

Annual ADLSI Christmas party, Thursday 3 December 2015

Her Honour Judge Nicola Mathers, her Honour Judge (retired) Dale Clarkson and Rachael Reed

Helen White and Chief Judge Graeme Colgan

Stephanie Nicolson, Paul Collins and Bruce Galloway

Continued on page 5

LN


Jade Magrath and Eugenia Woo

Christopher Eggleston, Ben Thomson, David Niven and Lloyd Gallagher

William Spring, his Honour Judge Nevin Dawson, the Hon Justice Raynor Asher and Margaret Malcolm

Christian Peters, Angela Parlane and Tim Orr

Continued from page 4

+ Update from ADLSI’s Documents and Precedents Committee

Agreement for Sale and Purchase of Real Estate Ninth Edition 2012 (3)

The ADLSI Documents and Precedents Committee is pleased to announce that, in conjunction with REINZ, there have been a number of significant changes made to the Agreement for Sale and Purchase of Real Estate and the Particulars and Conditions of Sale of Real Estate by Auction.

The changes have been made following an extensive review undertaken over the past few months. Feedback provided by lawyers, real estate agents and academics has been considered by the Committee and is reflected in the new edition. The agreement aims to cater to the most common type of real estate transaction. There will be situations where it will require adaptation to meet the requirements of a particular sale (and in those situations, the Committee’s Optional Clauses document is recommended).

For the first time, page numbers have been added to the agreement in an attempt to make life easier for users of the form. The order of signing on the attestation has been reversed so that the purchaser now signs on the left as it is more common for them to sign the agreement before the vendor. The definition of a “working day” has been amended to take into account recent legislative changes and new clauses have been inserted in light of the Land Transfer Amendment Act 2015 and the Tax Administration Amendment Act 2015. Improvements have been made to the GST schedule and its associated clauses, to better allow for the

agreement to cater to a sale where part of the property comprises a principal place of residence (such as a farmhouse or an apartment above a shop).

The new forms will be available via WebForms and in hard copy from Tuesday 15 December 2015.

To assist practitioners navigate the changes, sample copies showing the highlighted changes will be available through the ADLSI website on the release date. In addition, a webinar focusing on the key changes and the underlying rationale for them will be held on Wednesday 3 February 2016. This will provide an excellent opportunity to receive insights from the principal drafter of the Agreement, Peter Nolan, Sole Practitioner, and from the convenor of the Documents and Precedents Committee, Tim Jones, Partner at Glaister Ennor.

Updated versions of the Particulars and Conditions of Sale of Real Estate by Tender and the Mortgagee Sales Forms reflecting the changes made to the standard agreement will be released early in 2016.

For further information, please contact Ben Thomson, ADLSI Documents and Precedents Manager, at [email protected].


By Joanne Chilvers, Senior Associate, Hesketh Henry

The questions contained in the new tax statements required for registration of instrument to transfer some estates in land are causing confusion for both clients and conveyancing practitioners alike.

The information required to be included in a tax statement is set out in sections 156A-156J of the Land Transfer Act 1952. These new sections were inserted by the Land Transfer Amendment Act 2015.

Of particular concern is section 156C, which sets out the content of the tax statement. This new clause provides that any transferor or transferee must state whether they, or a member of that person’s immediate family “is a New Zealand citizen or a holder of a resident visa, work visa or student visa” (Question 2.1).

Further, if the tax statement is being completed by the transferee and the transferee or a member of the transferee’s immediate family holds a work or student visa, the transferee must state whether they or a member of their immediate family intend to live on the land (Question 2.2).

While these questions are not an issue when the transferor or transferee is an individual, deciding how to answer these questions when the transferor or transferee is a corporate entity is causing considerable confusion.

In the short period of time that the legislation has been in force, I have become aware that varying interpretations have been taken by practitioners as to how these questions should be answered when the client is a corporate entity.

+ Property law

New tax statement forms causing confusion for both practitioners and clients alike

LN

In response to queries from practitioners, LINZ has been advising that corporate entities should answer “no” for Question 2.1 and “not applicable” for Question 2.2.

The approach in the Land Transfer Act 1952 can be contrasted with the Tax Administration Act 1994 which uses the term “offshore person”, and the Overseas Investment Act 2005 which uses the term “overseas person”. Both these definitions extend to cover both natural persons and corporate entities.

The reality is that there are numerous parcels of land in New Zealand (including many residential properties) that are owned not by individuals, but by companies, charitable trusts, incorporated societies and other such entities.

If corporate entities follow LINZ advice and

answer “no” to Question 2.1 about whether the transferor or transferee is a New Zealand citizen or holder of a visa, then any transfers to and from New Zealand corporate entities will be in the same category as all transfers to and from overseas-based vendors and purchasers and, as a result, it is difficult to see that any meaningful statistics on foreign ownership can be generated from the information supplied.

Another aspect causing confusion is that terminology in the legislation is not used in the same way as is used or would be easily understood by a conveyancing practitioner or property owner.

As an example, the use of the word “nominee” in section 156C(3) does not appear to have the common meaning of “or nominee” which is used in the standard ADLSI/REINZ form (in the sense that one party signs an agreement for sale and purchase intending to nominate a third party as purchaser prior to settlement) but rather refers to the less common situation of a purchaser holding land as a bare trustee for another party.

It may be that urgent consideration needs to be given as to whether the tax statement form needs to be divided into separate sections that apply to individual and corporate entities or even whether there needs to be different forms of tax statements for different entities.

Certainly, experience in the past month has shown that the clearer and easier the questions in the tax statement form are for both practitioners and property owners to understand, the higher the chance that the tax statements will be completed correctly and that meaningful information will be able to be gathered from them.

Joanne Chilvers

ADLSI and Law News wish all our members and readers a very Merry Christmas and a happy festive season.

May your holidays be peaceful and filled with the joys of family, friends and fun.

Thank you to all who have written for Law News or otherwise supported us throughout 2015, and we look

forward to working with you in the New Year. We note that the first issue of Law News for next year will be published in the first week of February 2016.


Prepared by Sacha Jugum, Editor of ADLSI’s Bulletin

Crimes Act 1961 section 209(b) and section 66(1) – sentencing remarks after guilty plea as a party to one count of kidnapping and sentencing indication – applicable sentencing principles – level of culpability and involvement – “wilful blindness” – actions of co-offender – lack of premeditation – mitigating factors – remorse – end sentence of three months’ community detention with curfew and 250 hours’ community work.

M was in a relationship with L, a woman with “medical and psychological” illnesses, who falsely told M she was pregnant with twin baby boys and that he was the father – L and M attended Middlemore Hospital late in the “pregnancy” and L was advised, in front of M, that she was not pregnant, despite her swollen stomach – M left L at the hospital while “L’s records were checked” – L telephoned him some 20 minutes later to advise him she had given birth – when M returned to collect her from the hospital L

+ Case summary

The Queen v Manutui [2015] NZHC 2880 (Woolford J)

was holding a baby girl that she had “stolen” from a crib on the maternity ward – M had a child from a previous relationship and so had some knowledge of the childbirth procedure/recovery and what a newborn baby looked like – M exhibited a “high” degree of “wilful blindness” and, although he asked L whether the baby was hers, he did not pursue the issue despite the inconsistencies apparent in there being a five-day old, single, female baby “with very white skin despite M’s dark skin” (i.e.: not newborn twin boys) – L advised she had given birth to and been released from hospital all within 20 minutes – M decided to pursue his concerns “in the morning”, however, in the meantime the police located and retrieved the baby.

L was sentenced separately – M pleaded guilty soon after the police revised the charge he was facing – it was apparent M had not “planned” to “steal” a baby – rather M had been faced with a situation where he chose not to pursue his concerns out of his “trust and love” for L, and this meant the baby’s parents suffered further anguish as their baby was missing for some six-

eight hours (whereas if M had acted promptly the baby would have been returned far sooner) – M demonstrated “deep” remorse and was now in a new and supportive relationship.

Held: [after consideration of sentencing principles] no tariff case for kidnapping and case law in the area of child kidnapping is highly varied – no case similar to the “unique role” M played in this crime – a five day old baby is vulnerable victim – “grave consequences” for the baby’s family – M was wilfully blind and ignored warning signs and inconsistencies – starting point of nine months’ imprisonment – discount for remorse and guilty plea – community based sentence “clearly” appropriate – little likelihood of M re-offending – end sentence of three months’ community detention with a curfew and 250 hours’ community work.

A PDF of this decision (which includes sentencing indication) is available from the Judicial Decisions Online section of the Ministry of Justice website https://forms.justice.govt.nz/. LN

+ New book

Family Law in New Zealand, 17th Edition

Authors: Henaghan, Atkin, Clarkson, Caldwell, Swadling, Ballantyne

Family Law in New Zealand, now in its 17th edition, is written by a panel of family law experts and presents the current principles and trends of New Zealand family law in a clear and concise manner. Its in-depth commentary, covering both legislation and case law, is an invaluable resource for both students and practitioners who need to have a portable, authoritative and quick-reference resource at their fingertips.

For this edition, the text has been thoroughly updated with the addition of a new chapter

on practice and procedure, the removal of older cases and content less relevant to the family court, and the inclusion of the most important recent case law.

Price: $113.04 plus GST ($130.00 incl. GST)*

Price for ADLSI Members: $101.74 plus GST ($117.00 incl. GST)*

(* + Postage and packaging)

To purchase this book, please visit www.adls.org.nz or contact the ADLSI bookstore by phone: 09 306 5740, fax: 09 306 5741 or email: [email protected].

By Christine Chilwell, Principal, McElroys and member of ADLSI’s Employment Law Committee

Recently, their Honours Chief Judge Colgan and Judge Inglis visited the ADLSI Employment Law Committee (Committee) during its regular meeting.

Their Honours raised six topics: costs awards, the refreshment of the Employment Court website, recently introduced legislation, compensation for non-economic loss, the consequences of the J P Morgan case, and finally, the (probably unintended) consequences of the recent amendments to the Employment Relations Act 2000 (ERA) requiring the Employment Relations Authority (Authority) to give oral determinations wherever practicable.

This visit is an annual occasion. As always, it was very useful to hear from the Court on topical issues and to be able to give feedback in an informal setting, and the Committee was grateful for that opportunity.

This note outlines the issues and the discussions, and on the costs issue also outlines submissions recently made by the Committee.

Costs

The Court has engaged in a consultation process Continued on page 2

Merry Christmas

THIS ISSUE:

Helpful insights from the Employment Court Change in store for emissions trading?

New Land Transfer Act tax statements causing a headache

www.adls.org.nzISSUE 44 11 DECEMBER 2015


JUDGES’ VISIT TOUCHES ON COSTS AND COMPENSATION

LAWNEWS

ADLSI celebrated the end of 2015 with its annual Christmas function on Thursday 3 December 2015. Guests enjoyed a lovely evening on Chancery Chambers’ rooftop terrace. Pictured here and looking ready for summer-

time are Michelle Burke, Mark Colthart, Peter Spring and Gillian Goodwin. For more photos from this event, please turn to pages 4 and 5.

with stakeholders to seek views on the current approach to costs, and the Committee made detailed written submissions in this process. There was a general view amongst Committee members that a scale along the lines of that in the High Court was warranted, although some members had reservations that this would entail lower costs awards than at present. The reason for these reservations was that lower costs awards together with the relatively low level of remedies in the employment jurisdiction might cumulatively deter litigants from bringing their cases to the Employment Court.

At the Committee meeting, Judge Inglis

told us that the Court has received a lot of feedback expressing a range of views, but with general support for a move towards a scale. The perceived advantages of a scale include consistency in awards, the parties being more able to assess costs at the outset, and being assisted to agree costs rather than spend the time and cost currently expended on applications for costs.

Other issues arising from the consultation process, and which led to some discussion at our meeting, included:

Online magazine version of now available to subscribers.

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Simply email [email protected] and let us know you’d like to switch your weekly print subscription to online, and we’ll arrange to send you an email every Friday with a link to the latest issue of LAWNEWS.

If you’d like to start a subscription to LAWNEWS, it’s free for ADLSI Members and $130+GST per year for non-members. To enquire about subscribing, email [email protected] or visit www.adls.org.nz/adlsi-store


+ Update from ADLSI’s Criminal Law Committee

Legal correspondence to clients in prison

The legal profession has recently been advised by the Department of Corrections that legal correspondence will be opened before it is given to the prisoner.

The reason for this is that contraband has been included in some correspondence purporting to come from a lawyer.

However, if the correspondence is accompanied by a letter to the Prison Director (or P.C.O.) stating that the lawyer is acting in a professional capacity and that the correspondence relates to the prisoner’s legal affairs, the correspondence will not be opened.

In that case the process is as follows:

1. Legal mail is received at MECF addressed to the Prison Director. It is to be accompanied by a letter from the legal advisor stating that:

(i) the legal advisor is acting in a professional capacity in respect of the prisoner; and

(ii) the mail or correspondence relates to the prisoner’s legal affairs.

2. That letter will accompany the unopened mail addressed to the prisoner.

3. The unopened mail will be sent to the prisoner/unit concerned.

4. The prisoner will sign a covering letter from the prison to acknowledge having received the legal correspondence unopened.

This procedure will mean more paper work for the client’s counsel but it should facilitate a prompt delivery of legal correspondence to the prisoner in the future. LN

Greg Jones, founding partner of Heaney Jones and Jones Fee, has started a new practice with a new approach.

Mr Jones is one of New Zealand’s leading specialists in insurance law and litigation. He has most recently been involved in resolving some of the largest claims ever seen in this country, which have arisen out of the Christchurch earthquake. This experience has convinced him of the need for a new approach and a new style of practice.

“Cases are becoming more expensive to litigate and harder to resolve within a reasonable time frame for a reasonable cost. Clients now need from us, not only the strategic and negotiating skills to achieve a resolution, but also court room experience that will drive an advantageous outcome where agreement is not possible. We have a new team that can deal with complex litigation whether through mediation or the courtroom,” says Mr Jones.

Jones & Co will harness its insurance expertise and use its depth and breadth of experience in insurance litigation as a natural complement to the challenges faced in all commercial litigation.

The new practice is now up and running with a team of skilled and seasoned litigators with experience in over 300 trials. The firm’s focus will be the insurance industry and the diverse range of litigation that arises within that industry.

+ News from the profession

New practice in Auckland

LN

The Jones & Co team – Paul Biddle, Lorraine MacDonald, Greg Jones and Sarah Wroe

Consequences of J P Morgan case

Chief Judge Colgan outlined some significant implications of the decision of the Court of Appeal in J P Morgan Chase Bank NA v Robert Lewis [2015] NZCA 255. Firstly, he commented that the decision highlights the restrictions on the enforceability of settlement agreements signed by the mediator under section 149 of the ERA. In particular, damages are not available for breach of a section 149 Record of Settlement. His Honour remarked that in the light of the decision there are now some real questions as to whether clients should be advised to record their agreement in a Record of Settlement signed by a mediator under section 149 or in a settlement agreement/deed of settlement.

Secondly, Chief Judge Colgan observed that the Court also considered the jurisdiction issues raised where a former employee sets up a new company in competition with the former employer. It set aside a line of High Court cases and as a result has restricted the range of matters

Continued from page 2, “Judges’ visit touches on costs and compensation”

which can be dealt with by the employment jurisdictions (see for example The Hibernian Catholic Benefit Society v Hagai [2014] HZHC 41 and Aztec Packaging Ltd v Malevris [2012] NZHC 243). Potentially, the former employer will have to issue proceedings in three jurisdictions:

• a claim for breach of the employment agreement in the Authority;

• a claim for breach of fiduciary duties in the High Court;

• an application for a search order in the Employment Court.

A third issue identified by his Honour is whether, in the light of the Court’s conclusion that the settlement agreement was a new agreement replacing the employment agreement, it will be necessary to incorporate the restraint of trade clause into the settlement agreement in order to be able to rely on it.

Oral determinations in Employment Relations Authority

The Chief Judge highlighted an unintended consequence of the new requirement in section 174 of the ERA for the Authority to provide an oral determination at the end of the investigation meeting wherever practicable. This is, anecdotally, that some Authority members are becoming much more prescriptive in respect of pre-investigation meeting directions, which means a significant addition to the costs of preparation. The feedback from Committee members was that this is consistent with their experience, and that parties are often being asked for lists of issues and submissions (even closing submissions), including hard copies of authorities, in advance of the investigation meeting. Some concern was expressed that this is not consistent with the object of providing low level resolution of employment relationship problems. LN


+ ADLSI Council

Contact details for ADLSI CouncilHere are the contact details for your ADLSI Council. They welcome your queries and suggestions.Brian Keene QC (President) Ph. 09 366 0306 E. [email protected] Pidgeon (Vice-President) Ph. 09 337 0826 E. [email protected] Brandts-Giesen Ph. 03 313 4010 E. [email protected]

Vikki Brannagan E. [email protected] Hagen Ph. 09 309 1689 or 021 452 326 E. [email protected] Nicolson Ph. 09 309 2500 E. [email protected]

David Roughan Ph. 09 435 2261 E. [email protected] Anne Shanahan Ph. 09 827 6106 or 09 827 2783 E. [email protected] Spring Ph. 09 486 1609 E. [email protected]

+ Holiday reading and gift ideas …

Four great titles to give or enjoy this Christmas

It Was All Legal: The Auckland District Law Society and its members 1879-2009, by Graham WearLawyers are the central characters of many novels. The real life stories of many lawyers can be just as interesting. This book is a fascinating story of Auckland’s colourful lawyers and the District Law Society to which they all belonged. Set against the history of Auckland and New Zealand as a whole, it spans from the mid-19th century to the first decade of the 21st century.




A Walking Guide to New Zealand’s Long Trail: 113 Walks from Cape Reinga to BluffThis is the guidebook of “Te Araroa Trail: The Long Pathway”, a continuous trail running from Cape Reinga to Bluff, 35 years in the making, which officially opened in late 2011. The book maps the 3000-kilometre trail in 40-kilometre sections. Each of the 12 regional sections opens with a stunning two-page 3D map.




The New Zealand Cycle Trails: A Guide to New Zealand’s 23 Great RidesThis spectacular book is stuffed full of useful information on the different trails – how to get there, what you will see, level of difficulty, things to take, places to eat and places to stay. There is fascinating background information on each area – its history and the local flora and fauna – as well as on the ride itself.




Face to Face: Conversations with Remarkable New ZealandersFace to Face offers intimate portraits of the lives of twelve remarkable New Zealanders. Through conversations with Paul Moon, one of the country’s most acclaimed historians and cultural commentators, and through the lens of award-winning photographer Jane Ussher, we get to know these extraordinary Kiwis like never before, namely Sir Richard Hadlee, Patricia Grace, Sir Robert Jones, Hone Harawira, Fiona Pardington, Sir Peter Gluckman, Michael Houstoun, Sir Miles Warren, Dame Alison Holst, Sir Lloyd Geering, Tim Finn and Mai Chen.




To purchase any (or all) of these books, or other titles from our great selection, please visit www.adls.org.nz or contact the ADLSI bookstore by phone: 09 306 5740, fax: 09 306 5741 or email: [email protected].


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

Featured CPD

Tuesday 23 February 2016 12.30pm – 5pm

4 CPD HOURS

Property Law Half-Day Conference Enhance your property law practice and become updated in recent developments through this intensive 4-hour session, with topics and presenters as follows:

• End of Lease Obligations: Don’t be Caught Out!; Presenter: Joanna Pidgeon, Principal, Pidgeon Law• The Keys to Unlocking Landlocked Land; Presenter: Elizabeth Toomey, Professor, School of Law, University of Canterbury• Tenancy in Relation to Sale and Purchase Agreements; Presenter: Amy Johns, Senior Associate, Simpson Grierson• Resource Management: Considerations and Tips for Property Lawyers; Presenter: Sue Simons, Partner, Berry Simons• Residential Property Tax: Shedding Light on New Legislation; Presenters: Dominic Lundon, Partner, Buddle Findlay; Tony Wilkinson, Partner, Buddle Findlay Chair: Ian McCombe, Partner, Brookfields

Tuesday 1 March 2016 4pm – 6.15pm

2 CPD HOURS

Health and Safety at Work: Getting Reform-Ready A new health and safety regime comes into effect on 4 April 2016. Preparing clients for, and advising them on, the new reforms will be essential for many lawyers. This seminar will shed light on the new legislation, provide insights into how WorkSafe will enforce the regime, and offer advice on how best to comply with the provisions of the Act as well as how to deal with prosecutions if they occur.

Learning Outcomes:• Gain an understanding of the new legal duties which will apply under the legislation (including the obligations of due diligence for officers) and how they can be met by your clients

• Learn about the functions and powers of WorkSafe’s health and safety inspectors and the approach which they can be expected to take when dealing with duty holders

• Understand the penalty regime which will apply under the legislation and the new enforcement powers which will be available.

Who should attend?Health and safety lawyers, in-house counsel, employment lawyers, civil litigators, insurance litigators, criminal lawyers, those advising on company and governance issues as well as general practitioners and commercial lawyers.

Presenters: Fletcher Pilditch, Barrister, Richmond Chambers; Mike Hargreaves, Chief Legal Adviser, WorkSafe; Sam Moore, Associate, Meredith Connell

The ADLSI/REINZ Agreement for Sale and Purchase of Real Estate 9th ed (3) – Charting Recent ChangesA number of amendments have recently been made to the current ADLSI/REINZ Agreement for Sale and Purchase of Real Estate. These accommodate the residential land tax requirements introduced by recent legislation. They also incorporate improvements adopted following consideration of suggestions received from lawyers and other interested parties. Presented by the drafters of the agreement, this webinar will not only highlight key changes, but will also provide useful explanations surrounding the underlying drivers for including them and the approach taken to drafting them.

Who should attend?All property lawyers and legal executives. Real estate agents would also find this session useful.

Presenters: Tim Jones, Partner, Glaister Ennor; Peter Nolan, Sole Practitioner

Wednesday 3 February 2016 12pm – 1pm

1 CPD HOUR

Saturday 19 March 2016 9.30am – 1pm

3 CPD HOURS

Evidence and Trial Preparation WorkshopThis is a further session of the workshop held in November 2015, which was oversubscribed. Spaces are again limited.

The facts of a case, whether criminal or civil, are a variable over which a lawyer has little control. The optimum collection and skilful use of evidence are, therefore, essential aspects of any litigator’s toolkit. This workshop will cover the core competencies of evidence, proof and factual analysis (EPF). It will also look at methodologies and approaches to factual investigation, the development of a case theory and how to prepare a case for court.

Learning Outcomes• Learn more about the flexible methodologies for the management of evidence.

• Develop a better understanding of reasoning and its use in the development of case theories.

• Learn how to better identify the strengths and weaknesses of a case whether acting for the plaintiff, prosecution or the defendant.

• Gain further practical insights into the preparation of trial documentation including the development of effective chronologies, the preparation of witness briefs and statements, the management and completion of the common bundle and how to produce effective trial folders.

Who should attend?Junior civil and criminal litigators; practitioners wanting to refine and hone their approach to EPF would also benefit from attending.

Presenter: Chris Patterson, Barrister, Chris Patterson Barrister Limited

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

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

Conference



Webinar



Live stream



Seminar



Intensive


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

Featured CPD

CPD in Brief

Demystifying the Cloud: What It Means To You and Your Clients – 1 CPD hr Wednesday 10 February 2016, 12pm – 1pmMany businesses are, or are considering, procuring services that are offered “in the cloud”. This webinar will assist lawyers who are intending to use cloud services within their own firms, and those with clients seeking advice on cloud services, to understand some of the key issues relating to the use of cloud services and their associated terms and conditions of use.

Presenters: Edwin Lim, Partner, Hudson Gavin Martin; Anchali Anandanayagam, Senior Associate, Hudson Gavin Martin

Company Directors: Risk of Civil Liabilities for Third Parties – 2 CPD hrs Thursday 10 March 2016, 4pm – 6.15pmThe risks for company directors of civil liability to third parties are many and varied. This seminar will address liability in tort, under the Fair Trading Act 1986 and Companies Act 1993, to investors and in relation to Phoenix companies.

Presenters: Daniel Kalderimis, Partner, Chapman Tripp; Chris Noonan, Associate Professor, Faculty of Law, University of Auckland

Chair: The Honourable Justice Edwards

Accounting Principles You Need to Know to Become an Effective Commercial Lawyer – 2 CPD hrs Tuesday 15 March 2016, 4pm – 6.15pm Understanding accounting principles and financial statements is key in helping commercial lawyers scope due diligence investigations; understand the purchase price and what the effect is on the completion mechanism; understand completion adjustments; and understand deferred consideration/earnouts. This seminar will provide both legal and accounting insights.

Presenters: Tom Logan, Senior Associate, Minter Ellison Rudd Watts; Simon Peacocke, Partner, BDO Auckland

Chair: Andrew Lewis, Principal, Andrew Lewis Law

CPD On Demand

Top Up Your CPD with ADLSI On Demand PackagesChoose from 7 pre-selected On Demand packages comprising recordings of CPD sessions aligned to your area of practice or development requirements. With each 4-hour package, you also receive 2 bonus hours of CPD On Demand to complete (i.e. totalling 6 CPD hours per package). Each package is CPD compliant. The following packages are available:

General Practitioners’ Toolkit Rural Law Package

Litigation Package Skills for Lawyers Package

Property Law Package Commercial Law Package (select from 2)

Price per package:

ADLSI Members – $290+GST

Non-Members – $350+GST

Please note that there is a processing time of 2-3 working days from the date of receipt of an order before the material within each On Demand package becomes available. Also, purchases of On Demand material must be made before 17 December 2015 if you wish to access material during the holiday period. (The ADLSI office re-opens on 11 January 2016). Please see website for further terms and conditions.

CPD Pricing

Delivery Method Member Pricing Non-Member Pricing

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

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

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

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

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

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











On Demand



Webinar



Seminar



Live stream



Seminar



Live stream

Announcing the Nespresso ‘U’ Espresso Machine winner…ADLSI is delighted to announce that Matt Beattie of Greeson Dorman & Co, Timaru is the lucky winner of the Nespresso ‘U’ Espresso Machine prize draw, valued at $369.Each registration received between 15 October and 4 December 2015 for an ADLSI CPD event provided registrants with an entry into the draw.Matt’s winning registration was for the ‘Courtroom Advocacy – The Essential Skills: Submissions and Appeals’ seminar via live stream. Congratulations Matt!


TOP UP YOUR CPD WITH ADLSI

4-HOUR CPD ON DEMAND PACKAGES 7 combinations of On Demand CPD packages aligned to your

area of practice or development requirements.

Plus receive 2 bonus hours of CPD On Demand to complete.

OPTION TWO OPTION THREE

BROWSE & BOOK CPD ACTIVITIES

Book a CPD activity to suit you from the range available on the ADLSI CPD calendar,

or select from the ADLSI On Demand library.

ADLSI members, non-member lawyers and law firms can now earn Airpoints Dollars™ on their ADLSI CPD purchases. To find out more, and to register your Airpoints membership number with ADLSI visit www.adls.org.nz. Terms and conditions apply.

CHOOSE FROM 3 FLEXIBLE WAYS TO COMPLETE YOUR CPD HOURS BEFORE 31 MARCH 2016

4-HOUR PROPERTY LAW HALF DAY CONFERENCE

Tuesday 23 February 2016, 12.30pm–5pm. Attend in person or via live stream.

Early bird bookings receive 1 bonus hour of CPD

On Demand to complete.

CPD HOURS

+2 CPD BONUS HOURS4 CPD HOURS4CPD

HOURS

+1 CPD BONUS HOUR

OPTION ONE

For more information and to register visit www.adls.org.nz/cpdSpecial pricing available for ADLSI members

Email [email protected] Phone 09 303 5278 Fax 09 309 3726

Purchases of On Demand Packages must be made before 17 December 2015 if you wish to access material during the holiday period. (The ADLSI office re-opens on 11 January 2016.)

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

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

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

Fax to: 09 309 3726 For enquiries phone: 09 303 5270

+ Wills

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

Robin Wright ANDREWS, late of 12 Midvale Place, East Tamaki, Auckland, Aged 60 (Died 23’11’15)

Trevor Hewitt CAPON, late of 183 Hibiscus Coast Highway, Red Beach, Whangaparaoa, Auckland, Retired, Aged 81 (Died 20’11’15)

Sheree Nicole COONEY, late of 14/29 Rossmay Terrace, Mt Eden, Auckland, Real Estate Agent, Aged 28 (Died 31’10’15)

Rosina DE THIERRY aka HEMOPO, late of Pukekohe, Widow, Aged 70 (Died 08’07’15 at the St George Public Hospital, Kogarah, New South Wales, Australia)

Michael Kenneth RAE, late of 9 Nordon Place, Remuera, Auckland, Company Director, Aged 48 (Died 21’11’15)

Faiauga TALIAOA, late of Papatoetoe, Auckland, Aged 52 (Died 28’09’15)

Miriam VELA, late of Manurewa, Auckland, Aged 79 (Died 26’10’15)

Licensed Private Investigators and Process Servers.

We are a leading Investigation and Processing company providing

a national and international service to NZ Law Practice

for more than 25 years.

Phone: 09 827 0096 Fax: 09 827 0226

email: [email protected]

Chambers in High Street

Sizeable corner office available for barrister. A smaller room is also available for a junior. Attractive space with substantial storage, meeting room, kitchenette and reception; to share with three other barristers. Available from 1 January 2016.

Please contact Alex McDonald [email protected] or Stuart Ryan [email protected].

CHANCERY STREET CHAMBERS • Paul Dale has rooms available in his Chambers at 45 Chancery

Street. The options are either one large or one or two smaller offices, or any configuration to suit.

• The Chambers are comprised of a modern open plan reception and boardroom layout with the offices off that space. Opening windows and plenty of natural light make this a very pleasant

working environment.

• Full secretarial services can be provided if required. The Chambers have a good in house library, a friendly atmosphere and

are positioned in a great central location.

Call Paul Dale on 021 990 966 or Marlene Dale on 021 976 657

Property Disputes?The Property Disputes Committee provides a simple, low cost process for resolving legal issues regarding property involving lawyers.

The Committee members are all ADLSI practitioners who have a wide range of experience. The Committee guidelines can be viewed at www.adls.org.nz and set out the application procedure. Practitioners are asked to check the guidelines to ensure the Committee is the appropriate forum for their dispute.

For further information please contact Ben Thomson on (09) 306 3994.


Family Courts Association

Tuesday 9 February 2016 Commencing with drinks at 6pm

Guest Speaker:Professor Mark Henaghan

Otago University, Faculty of Lawtalking on the research of the Otago Law School on the success of the

family law reforms

Venue:The Commerce Club

27-33 Ohinerau Street, Remuera$45 members, $55 non-members

RSVP by 26 January 2016 to: Alison Wilcox, Administrator

[email protected] Mobile: 0274 879 006

For those who have enjoyed the love and companionship of an animal during their lifetime, leaving a gift to SPCA Auckland in their will is a fi tting way to honour that special relationship.

For information about leaving a legacy for the animals contact Bob Kerridge on 09 256 7306 or [email protected]

Protect Auckland’s animals for generations to come.

Booking deadline is 12pm Thursday, 6 working days prior to publication date.

Email [email protected] or call 021 371 302 to book your advertisement.

Get your message in front of 5500 legal professionals.

Barrister’s roomSouthern Cross Chambers

High StreetLarge attractive modern room in large

well established chambers. Lovely aspect overlooking Albert Park.

Excellent amenities including extensive library, common room,

kitchen and meeting facilities.Congenial and supportive environment.Convenient location close to the High

Court & District [email protected]

Tel 021 192 9511

SOUTHERNCROSS CHAMBERS Bar r i s t e r s

DATA RECOVERY0800 LOST FILES

(0800 5678 34)www.datarecovery.co.nzComputer Forensics NZ Ltd,

(on Albert St, Since 1999)

C O M P U T E RINVESTIGATIONS

find out more

Insolvency is our Specialty ...and Litigation Support too!John, Paul, Matt and Simon have decades of experience in Insolvency and Litigation Support. For expert and impartial advice on Restructures Liquidations, Receiverships, Share Valuations, Fraud Analysis and Expert Witness work, call the team at Gerry Rea Partners.

Tel 0800 343 343 · Fax 09 377 3098 · www.gerryrea.co.nz

Contact us for robust independent

residential real estate valuation advice

+ 64 9 482 [email protected]

Valuation and expert witness services


YOU COULD BE EASILY EARNING AIRPOINTS DOLLARS™ WITH ADLSI

Start earning Airpoints Dollars™ on eligible ADLSI purchases such as CPD, legal texts, legal forms,

membership fees and more.Register your Airpoints™ membership details

at adls.org.nz or phone 09 303 5275

To be eligible to earn Airpoints Dollars™ with ADLSI, you must be an ADLSI member or non member lawyer. Law Firms can also earn Airpoints Dollars on eligible firm purchases once they have joined the new Airpoints™ for Business programme. Terms and conditions apply.

Auckland District Law Society Inc. Phone 09 303 [email protected]

Missing out?

ZADLS0013 Missing out Print AW All.indd 3 4/12/15 2:14 pm


As a supplier in the ADLSI Member Benefits Programme, Fuji Xerox will target to save ADLSI members 15% – 20% on current copier contract rates for new Fuji Xerox customers.

As a limited time offer, any new agreements signed prior to 24 December 2015 are entitled to have their rental payments for the first 3 months of the agreement deferred.

For more information and terms and conditions, please contact Carl Cimpoias at Fuji Xerox on 022 313 4177.

A Special Offer from Fuji Xerox for ADLSI Members