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Lawtalk issue 841


  • 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.


    Turei Mackey

    Page 4

    TaranakiOpportunity fortalented lawyers

    LawTalk takes a look at legal practice in one of New Zealands 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 centurys 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



    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 Zealands 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 countrys 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 Taranakis 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. Theres no other way I would like it to be.

    Rajan RaiNew Zealand Law SocietyTaranaki branch President

    2 LawTalk 841 9 May 2014

  • LawTalkMore than 12,000 copies of LawTalk are distributed each issue. The magazine of the New Zealand Law Society, LawTalk is sent to every lawyer in New Zealand who holds a current practising certi cate. Although the number of lawyers with practising certi cates varies, it is typi-cally around 11,500. Others who receive LawTalk include members of the judiciary, Law Society associate members, legal executives, Members of Parliament, media, academics and others involved in the legal services industry.

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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 Associations Human Rights Institute (IBAHRI).

    The Turkish Judicial Reform Act 2014, signed into law by President Abdullah Gl 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 Zealands 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 Otagos report and the New Zealand Government must now prepare a formal and detailed response for the committees 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 howaccess to justice for people covered by ACC can be improved. The aim is to reconstruct ACC into a world-leading personal injurysystem that actually does what it was designed to do.

    First justice symposiumNew Zealands 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


    5LawTalk 841 9 May 2014

  • Ever since he arrived in New Zealand as a refugee from Idi Amins 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 wasnt 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 arent 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 Societys 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, ONeil & 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 todays 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







    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


    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 sisters atmate, she successfully applied for a job at Govett Quilliams Inglewood o ce and has since climbed the rms 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 dont 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 dont regress there. In fact the opposite. There is a huge client base out there in provincial New Zealand for those lawyers if thats 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 wasnt 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 Ive 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 doesnt 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 dont have that balance between your work as a lawyer and life then really whats the point?

    Farming, Oil and GasEconomically 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 Taranakis 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 youre not then it probably isnt 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 didnt.

    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 nations 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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    Our P


    eLaw firms and practitioners are invited to send in announcements of appointments, promotions, retirements or other information for this column. Submissions may be sent to [email protected] If possible, please include colour photographs of any persons mentioned.

    Image les should ideally be print resolution of 300dpi, and must be a minimum of 500 pixels wide for headshots, 2000 pixels wide for group shots. You can nd the dimensions of an image in Windows by right clicking on an image le, going to Properties, and clicking on Details, or on a Mac by right clicking on the image le in the Finder and clicking Get Info. JPEG or TIFF formats are acceptable, BMP or GIF are unacceptable. If digital les are unavailable, hardcopy photographic prints of minimum 10cm x 15cm may be sent to LawTalk, DX SP20202 or PO Box 5041, Lambton Quay, Wellington 6145. We will endeavour to return hardcopy photographs, provided a return address is included.

    Monica Ryan has re-joined Lane Neave as a partner after six years at another Christchurch law rm. Monicas 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 Ennors 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 Fraseris 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 rms other property partners: John Meads and Matthew Ockles-ton. Nicky McIndoepractises 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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    11LawTalk 841 9 May 2014

  • Four lawyers have j o i n e d A n t h o n y Harpers Auckland corporate advisory team. Geo Hoskingjoins 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 Wallisand Victoria Baylyhave 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 firms 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 Societys Waikato Bay of Plenty branch President at the branchs 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 schools 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 ONeill.

    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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    12 LawTalk 841 9 May 2014

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    Empathy is a personality trait fundamental to a great employment lawyer, according to Dundas Streets 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 persons 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 clients business.

    A deep knowledge of a clients business is crucial in order to be very responsive, very accessible, and give clear correct advice, he says.

    Mr Traylors 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 Kingdoms employment law.

    After eight months, he moved to an employment law advisory position with the Treasury Solicitors 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 governments 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 Streets 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

    clients 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. Zo Aldam has joined Corin as a senior asso-ciate. Zo worked with Corin at their previous firm. Corin and Zo 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 Hilla corporate partner. Both Richard and Ash are based in Auckland. Richard was previously at a boutique insurance practice for 13 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 Somervilles main goal is to ensure the branch remains a collegial place to practice law. The branchs lawyers have reasonably good collegiality already (25% of the branch turned up to the latest Annual General Meeting ) but it is important the citys 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 Nelsons 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 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

    Zo AldamZo 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 OMalleyAlice 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 AdamsRory James BartonFreiya Kathleen CampbellEmma Kate HunterBridget Victoria McClean MortonMaria Antonia Pozza

    Rebecca Dempseys ad-mission ceremony, in the Whan-ganui High Court on 23 April, was particularly special. Rebeccas mother, Kathryn Crooks, moved the admission and the presid-ing judge was Rebeccas 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. Rebeccas mother is a partner of Armstrong Barton and a former President of the Law Societys Whanganui branch.

    The New Zealand Law Foundation is the primary sponsor for the Wellington Young Lawyers Committees 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 persons 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 peoples 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 dont 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 peoples 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:

    Im concerned about you coming home late at night and I dont know where youve

    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.

    Dont be surprised if the person you are approaching is not ready for this discussion and dont 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 elses gambling there is help and support available. Dont 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.


    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 To webcast contact David Blackwell at NZICA, Auckland ph (09) 917 5915 or [email protected]


    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 elses.

    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 ones 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.

    Its 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. Its 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. Its 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:

    InteractionThe 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.

    Its 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.

    DisclosureAn 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.

    FlexibilitySome 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 its 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.Its 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, its exceedingly ine cient and counter productive. Count on it.

    Consistency over timeIf you who have had a child and/or a pet, you will know its 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. Its 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 intentionsInteraction, 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 Marys 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 Im 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 everyones 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

    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 centurys 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 lawyers 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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    20 LawTalk 841 9 May 2014

  • Courtroom PracticeCourtroom PracticeCourtroom PracticeCourtroom PracticeCourtroom Practice

    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 judges 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 jurys 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 judges 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 judges 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 lawyers 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 Legionnaires 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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