Canterbury tales

Two new QCs admittedCanterbury Westland Branch New Zealand Law Society October 2013, Vol. 19, No. 9

Canterbury tales

The third president of the USA, ThomasJefferson, principal author of TheDeclaration of Independence, spokesmanfor democracy and the rights of Man,diplomat, polymath and university founderonce said: For heaven’s sake discard themonstrous wig which makes the Englishjudges look like rats peeping throughbunches of oakum.

The donning of wigs (by those whocould lay their hands on one) toattend the ceremonial admission tothe Inner Bar of our own Philip Halland Jonathan Eaton on 19 August2013 exemplified the origins of this400-year-old preferment.Their admission was presided over by the Rt.Hon. Dame Sian Elias Chief Justice, togetherwith Hon. Justice William Young, and Hon.Justices Panckhurst, Kos and Gendall andAssociate Judge Matthews. (See photographPage 11).This year’s appointment round of Queen’sCounsel was the first since 2007 followingchanges to the Lawyers and Conveyancers Actearlier this year restoring the title of Queen’sCounsel and restricting appointments tobarristers sole.In June 2009, Attorney-General HonChristopher Finlayson announced that the titleof Queen’s Counsel would be reinstated, anda bill to implement the restoration wasintroduced into Parliament in March 2010. Thebill could not be said to have been passed withany haste, receiving the Royal Assent on 19November 2012. Indeed there were some whoexpected the next round to be King’s Counsel.There was a time when limits were placed onQueen’s Counsel, to preserve some work formembers of the outer bar (such as the writer).Queen’s Counsel and serjeants wereprohibited, at least from the mid-nineteenthcentury, from drafting pleadings alone; a junior

barrister had to be retained. They were notpermitted to appear in court without a juniorbarrister, and they had to have chambers inLondon, a requirement perhaps easier thanhaving chambers in post-quake Christchurch.From the beginning, they were not allowed toappear against the Crown without a speciallicense, but this was generally given as aformality. These restrictions made the taking of“silk” something of a professional risk, becausethe appointment abolished at a stroke someof the staple work of the junior barrister; theymade the use of leading counsel moreexpensive, and therefore ensured that theywere retained only in more important cases,and they protected the work of the junior bar.It is unlikely that either of Pip or Jonathan wouldhave needed Silk to claim the attention of theCourt of Elizabeth I in Westminster Hall.But as Dame Sian Elias told us: It is what ismade of the patent that counts. A former ChiefJustice once said that the place at the InnerBar is reserved for those who are upright,learned and brave.Queen’s Counsel are expected to justify theirappointments by demonstrating those qualitiesin all their work. We are confident that thoseadmitted today will repay this trust, to thebenefit of the New Zealand legal system.Her Honour recognised in her address that bothPip and Jonathan have displayed the

independence, hard work and technical skillsworthy of the call to Inner Bar. Likewise theirpreparedness to take on the difficult andunpopular cases that win counsel little praiseoutside of the profession.Their ability and independence is illustrated bythem both being regularly appointed torepresent members of the Police facingdisciplinary or criminal prosecution.One notable omission from Her Honour’saddress was that Jonathan worked for WoodMarshall while Pip was a partner of that firm.Perhaps that would generate a good questionfor Judge Neave at a future quiz evening.It was delightful to see the pride and joy onthe faces of the family and friends of Pip andJonathan sitting in the jury box during theceremony. No doubt none of them will passthe scrutiny of any future jury selection.Dame Sian Elias also took the opportunity topraise the Christchurch profession as a wholethat, she said, demonstrated the fineststandards of the profession in helping those inneed of help in the terrible circumstances wehave all faced since the earthquakes.The great ceremony drew to a close and allover town wigs were carefully stored orrelegated to their dusty drawer. They will comeout again though, most likely at another typeof ceremony, one to welcome the newestmembers of our profession.Yes, Mr Jefferson, as practitioners are admitted,advance, are elevated, and ultimately retire tothe eternal chamber, those “monstrous wigs”link every practitioner to the origins of our greatlegal tradition.

By Malcolm Wallace

Above, new QCs, Pip Hall and JonathanEaton and, right, being congratulated bybrother silks.

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President’s ColumnVino FinoPhoto Caption

Each month we have a photo captioncompetition where we invite you to submit acaption. The winner will receive two bottles ofwine sponsored by Vino Fino.Send your entry to the Canterbury WestlandBranch New Zealand Law Society, P.O. Box 565,Christchurch. All entries must be received byNovember 9 2013. The winner will beannounced in the next edition of CanterburyTales.

The winning entry for last month’s picture(below) was submitted by Roger Sandford..

“Don’t worry girls, they are repealingSection 108 Employment Relations Act.”

I have just returned from aweeklong hearing in the High Courtin Wellington.

So, while I normally use this column to tell theprofession about developments happeninglocally or nationally which may affect them,today my head is still so immersed in my casethat my colum¡n will be a self-indulgentreflection on that experience.As any lawyer who has been involved in awitness action of any duration will know, it is agruelling exercise. For some time leading upto it, and certainly every day of the case, itdominates your thinking to the exclusion ofeverything else.In reflecting on it during an unscheduled hiatusbetween the conclusion of evidence on Fridayand the presentation of closing submissions,caused by gale force winds in Wellington, thefollowing questions come to mind:* Why is that no matter how much work youdo on a case beforehand, you only really realisewhat the case is all about on the third day ofhearing?* Why is that your best ideas for cross-examination strike you at 2am in the morningwhen you either have to get up to write themdown, or risk losing them before daybreak?* Why is that the judge always has at least onethought on the case that had never occurredto you?* Why is that when your shakiest witnesseshold up brilliantly, the most innocuous seemingones turn out to have the potential to derailyour case?As litigators will know, there is almost noexperience quite like the total immersion youexperience during a hearing. Your existenceshrinks to a world populated by the judge, Courtstaff, opposing counsel, and the regularattendees from each party involved.For a brief portion in your life you create yourown world of in-jokes and black humour todefuse the tension of what otherwise is at stakebetween the parties. Having parties and counsel

who retain that clear divide between thearguments in the case, and the professionalcourtesy and camaraderie beyond (as I havehad in this case), makes it all bearable.And of course, at the end, like any contest, thereis the relief that it is over, the satisfaction ofreflecting on what was done well, and theniggling regrets over what could have beendone better.However, unlike a normal contest, the victor isnot announced on the day. I know that by thetime the judgment comes, my world will havemoved on. I will be immersed in other filesand thinking of other issues. Win or lose, it willbe a distraction by that stage to return to it, forthe client’s sake.If it is a win, I will, of course, be happy to takethe credit. If it is a loss, no doubt the clientand I will find some reason, beyond our control,for the judgment being so aberrant.In the meantime, while I await that outcome,instead of the rest I was dreaming of, I will becatching up on all the work I put on hold forthe past two weeks....!

Rachel Dunningham

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Lawyers and their Super

Canterbury Tales is the official newsletter ofthe Canterbury Westland Branch New ZealandLaw Society.Publications Committee: Karen Feltham(editor), Brendan Callaghan, Aliza Eveleigh,Zylpha Kovacs and Kate Dougherty.All correspondence and photographs shouldbe forwarded to: The Branch Manager,Canterbury-Westland Branch New ZealandLaw Society, Unit 1, 8 Homersham Place,Russley, Christchurch. P. O. Box 565Christchurch.Phone 358-3147, fax 358-3148. emailcanterbury-westland@lawsociety.org.nz.Canterbury Tales is published 11 times peryear. The deadline for editorial andphotographs is the 8th of the month.Disclaimer: Canterbury Tales is published bythe Canterbury Westland Branch New ZealandLaw Society. The opinions expressed hereinmay not necessarily be those of the Branchand have not been expressly authorised. TheBranch accepts no responsibility whatsoeverfor any error, omission or statement.

When I was in Auckland for ayachting contest in the 1970s Inoticed a beautiful large launch withthe name “Risk and Reward”. It wasowned by a well-known Aucklandprofessional with family money.

I had a long chat to him regarding the nameand he told me unapologetically how it hadhappened. It was at that point I recalled theParable of the Talents, Matthew 25:14:30,which was regularly read at our SchoolAssembly. For those who don’t possess a Bibleyou can Google it!It is self-explanatory but the message in anutshell is use what you have and capitaliseon your strengths to increase your wellbeing.Lawyers are professionals who by definition arewell educated, enjoy considerable workautonomy and are commonly engaged inintellectually challenging work.It seems however that whilst good lawyers cangive excellent results to clients they seem todo so at the expense of themselves. What Imean by that is that it is assumed by clientsthat with the fees charged there is more thanenough disposable income to create asubstantial retirement fund for the practitioner.In reality this is far from the case.By the time the house in Riccarton is paid offand the children have been educated there islittle capital left to retire on. Kiwisaver is a startin the right direction but most financial plannersagree that you need at least $1000 per week

disposable income additional to Kiwisaver tomaintain a reasonable retirement lifestyle.The Government realised this many years agofor the Judiciary with the generous retirementsuperannuation they receive whichcompensates them for earning less than theequivalent person in the private sector. Themany and various retirement business’s run byprominent barristers have featured all too oftenin the Courts for various reasons. So unlessyou are a high profile QC or apply to becomea judge, what are your options to generateadditional income to support your retirementgoals?Prior to law firms being able to incorporate, itwas up to individual partners to do what theywish outside the partnership. This caused a lotof friction between partners and affectedworkflow and profitability. There were alsodifferent degrees of risk depending upon thepersonalities of the different partners.With the right to incorporate there is no reasona firm cannot capitalise its goodwill, bring inwork in progress and debtors and end up witha strong balance sheet which would allow someleverage to do other things that generateincome and capital.Historically some of the large legal firms withadvice from their accountants entered intodicey deals with filmmakers and forests toproduce tax losses. These were a disaster aseverybody was out of their depth with noknowledge of what they were investing in andno skill to run them or exit from them. Therewas to be tax losses and large capital gain. Toogood to be true. No wonder they were all struckdown by the Commissioner. Now that the taxrates are the lowest in years it is important togenerate income and some capital growthoutside the firm to provide for retirementoptions for the directors.So what about the Risk and Reward? Lawyers,are by definition, adverse to risk but there are

investments which can be made which arecalculated and whilst carry some risk do carrysome reward. Let me give you some exampleswhich are quite recent.Prior to the earthquakes a firm was looking atpurchasing its own premises as its rent roll wasgoing to increase. A suitable building was foundand purchased using the strength of the firm’sbalance sheet and showing the previous rentwas more that the present mortgage.After moving, the earthquake happened andbetterment from the repair was that of the firmand not the landlord. It now has equity in thebuilding of over a million dollars after theupgrade (they were insurance savvy) and theirrent/mortgage is substantially less than theirprevious rent.Another example is a firm asked my advice onwhat to do with the excess from its reducedrent commitment as a result of moving tosmaller, less suitable premises as a result ofthe earthquake.I suggested they purchase five houses (therewere five directors) as there was going to be ahousing shortage and it would be a good short-term medium for investment. It took somepersuading but I said they all knew real estateand should be comfortable about buying andmanaging such property.They are now in the position that the rent fromthe properties is reducing debt weekly and eachproperty has increased in value by over$100,000. They are over half a million betteroff and their office rent is more than beingcovered by the rents received.I have other examples but time is too short.I would be happy to talk to firms for no chargeover morning tea to see how you can get aheadusing existing assets to help fund retirementas I can assure you that if you are in a positionto retire early then there is a life after law and itis pretty dam good.I can be contacted by email, rohanw@xtra.co.nz.

By Rohan Wills

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Last month I wrote about theresearch I had undertaken duringthe year in interviewing a numberof practitioners, partners and otherswho work closely with the legalfraternity.lI spoke about the challenges of attraction andretention of talent, the ageing population, thepending retirement of many baby boomerlawyers and the feminisation of the legalfraternity. This week I am going to discussadditional challenges mentioned during myinterviews.SuccessionA large proportion of Christchurch’s LawPartners are males aged 50 and above. Nodoubt a number will be planning to retire overthe next 5-10 years, which will provideopportunities for younger, motivatedpractitioners.While there is a need for good successionplanning, a number of my respondentsindicated that a smooth succession could bestymied by senior partners being overlyprotective of their client bases. Lawyers havebeen trained to be very good lawyers and takea real pride in providing good legal advice butthere can be a tendency to retain control andnot delegate effectively and pass work on.More than one senior partner emphasised thatit was so very important to plan ahead two-three years to ensure a smooth and successfultransition and work with the client and theyounger lawyer to maintain relationships.Firm valuationsA number of Christchurch law firms are morethan 100 years old which is no doubt the resultof effective planning, hard work, good adviceand maintenance of client relationships andtrust. Retaining and building expertise withinthe firm is on going and requires constantattention. One of the most frequentlymentioned challenges centred around thefirm’s equity.Debate focuses on what contributions newpartners are expected to make and whatpayouts do retiring partners fairly deserve.There are a number of different valuationmodels within Christchurch and firms seem tobe “tight lipped” about how they confront andsolve succession-planning issues.

Untied from the Timesheet No.2

Challenges within law firmsBy Andrew NuttallPartner, Bradley Nuttall Ltd

Some firms have a policy of ‘no money in, nomoney out’ while others expect and requiremore substantial contributions of equity frompartners. For those partnerships requiring acontribution of capital a “lockstep” process isfrequently used. Is there room for partners andmanagers within Christchurch and New Zealandto share ideas more openly to address thismajor challenge? One firm reported seekingadvice from off shore consultants.Client expectationsMost respondents reported that today’s clientshad greater expectations than previously andexpect more, sooner. Lawyers felt they are now“subject to greater scrutiny by even long termclients”.While relationships are important and will alwaysbe a key factor in law, an increased tendencyfor the most valuable clients to shop aroundwas reported. The shopping around was notnecessarily price sensitive but clients were moremotivated to ensure they had the best personto advise them and help them solve theirproblems.Some respondents suggested that this demandfor expertise is driving merger and acquisitionactivity and the growth of larger firms. Onerespondent said, “law firms are just likesuccessful cricket teams that require specialistswith one or two all-rounders.”The was a general consensus that firms with alarge proportion of ‘all-rounders’ or ‘generalists’are under pressure compared with other firmsand practitioners who have established specificareas of expertise and niches.TechnologyNew technology developments andenhancements will enable law firms to continueto grow and prosper, however, resources needto be committed to this area. This can be achallenge as many practitioners aged more than45 years are not necessarily strong intechnology.Respondents indicated that in recent yearssome firms have invested heavily in systemsand technology and the benefits of this is nowapparent. However, more will be required inthe future. Databases need to be constantlygroomed and upgrades to Trust AccountManagement software and communicationtechnology is on going.Technology has created a greater emphasis onnationwide interaction and enabled lawyers towork remotely but at the same time has madeit easier for competitors to enter the Canterburymarket.

High stress levelsA number of respondents indicated there werefrequently high levels of stress within law firms.“It’s a competitive environment with capable,experienced and highly trained people but highperformance environments can also take theirtoll,” said one. There is a constant need to billas well as find new clients and manage the firm.Younger partners can be saddled with thepressures of debts and the need to “keep upwith the Jones’s.” In addition highly motivatedpeople are inclined to impose high expectationson themselves as well as others close to them,which can add pressure, stress and anxiety.There is a need to ensure stress levels aremanaged both at a personal level and as anorganisation to ensure the firm is an employerof choice and the environment enables all stakeholders to meet personal, professional andfinancial goals.Even though there is stress one partner statedthat the “legal profession” is a great cash modeland although costs, including leases, haveincreased law firm costs still represent arelatively low percentage of turnover whencompared to other businesses.He went on to say that there is now a greaterneed for lawyers to think like other businesses.This is easier said than done as law firms aredominated, as they should be, by practitionerswhose main driver will be to ensure they aregood lawyers in the first instance and providehigh quality, professional advice.They are relationship people but successfulbusinesses also require excellent managementand some entrepreneurial flair. Michael Gerber’sbook, The ‘E-myth Revisited’ emphasises thatevery business requires three personalities tobe successful — the technician, (i.e. thepractit ioner), the manager and theentrepreneur.Many of the firms who reported improvedprofitability and office collegiality have allocatedtime, energy and resources to businessplanning and management. A number haveemployed professional managers and soughtexternal advice from HR and technologyconsultants as well as engaging experiencedmanagers and directors.I hope this article will be helpful and stimulatediscussion and planning. Please note that theabove is not necessarily my opinion but is acollation of views expressed by a number ofpeople I have interviewed.Next month I will discuss the financialchallenges that practitioners are facing.

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Making a differenceOn taking up the position of Deanand Head of Law at Canterbury in2012 it was my desire to changethe face of legal education in NewZealand.

There have been many innovations ineducation and the law and an exponential risein need within society and the legal professionthat have all gone unaddressed by NewZealand’s universities.Focusing on the legal profession in particular,this inability to adapt the education of lawstudents has, I believe, resulted in thegraduation of students who are not as wellequipped to face the practice of law as thosein other countries.Looking more broadly, the inability to adapt alsohas an effect upon civil society and the qualityof the contribution our graduates can make tothe big issues faced by our communities, ourcountry and our world.Big problems require big thinking and bigthinking does not occur by accident or as aresult of narrow education. So, whilst parts ofthe world have moved with the times,developments in legal education along withdevelopments in the law and our communitieshave largely passed us by.The New Zealand law schools in particular havesimply not kept pace with many of thesedevelopments nor stayed attuned to thechanging terrain. We have, to a large extent,remained flat footed as the world has changedaround us.I most certainly do not advocate throwingeverything out and starting again. Canterburyin particular is known for its fundamentalgrounding in the core aspects of legal analysisand we have no intention of changing that.However, for our graduates to cope in a morenuanced and complex world they must beequipped with the skills and attributes mostsuited to the challenges they will likely face.That not only applies to the law and the legalprofession, but is also applicable to ourgraduates as global citizens irrespective of theirchosen profession[s].Whilst the need for change has been more orless recognised for quite some time themotivation to develop has been lacking. Well,not in post-quake Canterbury. In 2010 the worldchanged for our community and the status quowas largely wiped away over a rocky 12-monthperiod.What followed for the School of Law, as withmost of our community, was a period ofintrospection in which we examined who wewere, what we stood for, and how we wentabout our business of research and teaching.

Although we would not want to relive anythinglike the troubles we faced over that time, inhindsight the opportunity to reinvent ourselveswas hugely invigorating. Inspired by the leadof our students — those law students whoestablished the Student Volunteer Army — werecognised that our community could not affordfor us to be the aloof ivory tower that we hadbecome. When I refer to ‘our community’ I notonly mean the legal profession but also civilsociety.We also recognised that the issues faced bythe Canterbury region in particular were andwould continue to be the most challenging butmost exciting that any society in New Zealand,if not the developed world, could possibly face.Calls upon the School of Law for help andassistance started to flood in — PhillipstownSchool, EQC issues, calls for greatercollaboration with Community Law, and UrbanMaori development with the placing of a DistrictCourt on the Marae at Aranui were all issues

that needed the enthusiasm, intelligence anddedication of our students — students keen tomake a difference, keen to be a part ofsomething bigger than themselves.With all this before us we began to look at waysin which we could integrate practical projectsinto the training of lawyers.At a function for Community Law Canterburyhosted by the School of Law the Vice Chancellorpresented me with a simple but very difficultquestion to answer; “Why is the notion ofcommunity law not integrated into the trainingof lawyers the way community health isintegrated into the training of Doctors?” — “Yes”I thought, “why not indeed”.And so at Canterbury we have launched thefirst clinical legal programme in New Zealandwhere students will be expected tocomplement their dedicated book learning withgetting their hands dirty with real issuesinvolving real people. Continued Page 11

Dr Chris Gallavin

Dr Chris Gallavin and his preferred mode of transport.

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‘The Kilichallenge’In his book “The Snows ofKilimanjaro”, Ernest Hemingwaydescribed the mountain as “wideas all the world, great, high andunbelievably white in the sun”.

Hemingway might be mortified to know thatsince 1912 the Kilimanjaro glaciers have lost85% of their ice due to the warming of theIndian Ocean and the deforestation of the lowerslopes. Apparently the ice will continue to meltover the next 30 years so, if you want to viewwhat’s left of these stunning glaciers, now isthe time to go.As the biggest freestanding mountain in theworld, sitting in its unique position on theequator, it richly deserves its other name - theRoof of Africa.None of these thoughts were running throughmy head as we, myself and Alex Millen, nearedthe summit in pitch blackness, the temperaturehaving plummeted to almost -20 degrees,barely able to breath at almost 6000 metres,head aching. It was exceptionally uncomfortableand unpleasant and, at that moment, it seemeda stupid thing to do especially as it was anexpensive and time-consuming exercise.Reaching that point started several monthsearlier when Alex casually mentioned she wasgoing to London via Africa to climb the

mountain and to also check out the Serengetiwildlife and dazzling beaches of Zanzibar. Aftera minute or 2 thinking about this, I was in - ouradventure was born.The structure of Mt Kilimanjaro makes itpossible to trek to the summit without technicalclimbing experience and therefore is amanageable challenge to the likes of Alex andmyself who are neither mountain climbers norused to altitude.Even so, at 5895 metres it is a seriousundertaking with the freezing temperatures andaltitude difficulties taking their toll. Many do notmake the summit and every year there aredeaths on the mountain.The official statistics reveal that only 41% ofclimbers reach the Uhuru Summit, the majorityturning around during the final ascent,sometimes within a few hundred metres ofthe top. Further, the incidence of AcuteMountain Sickness is widely deemed to beunacceptably high.We thought it was cold when we leftChristchurch one chilly July afternoon, havingno appreciation how bitterly frozen we wouldfeel a few days later when we finally reachedthe top of the mountain. Fortunately we hadfilled our packs with enough top qualityKathmandu gear so the cold, at least, wasmanageable.We also intended to take our training seriouslyenough that we would refrain from drinkingalcohol during the 38 hour long haul trip aheadof us to reach the African town of Moshi — ourkick off point for the mountain.That intention lasted for the first hour of thefirst flight and by the time we reached Dubai,many hours later, it seemed appropriate to have

G & T’s for breakfast. Tonic, apparently, is a goodmosquito repellent and although we were stilla long way from Moshi it seemed to us a goodidea to help the body prepare for those peskycreatures.Our last flight from Nairobi to the Mt Kilimanjaroairport (Tanzania) was short but spectacular.Within a half hour of take off from Nairobi wefelt the tangible excitement of seeing themountain for the first time as our aircraftseemed to fly within touching point of the veryglaciers we would soon be walking beside. Itlooked so big!A late check in to our Moshi Hotel did not allowus to see anything of the town as we drovethrough the dark. The pot holed, uneven, dirtroads reminded us of Christchurch and weassured our driver we did not mind beingbounced around.We had an opportunity the following day tovisit Moshi Town with an enthusiastic youngAfrican named Moses who was keen to showus all the sights including the town’s watersource, the fruit and vegetable markets, the busstation (in case we needed to go somewhere),the Masai medicinal stalls, the railway linesgoing nowhere, the schools, the motor bikewash shops, the orphanage and, importantly,the best place to get coffee (Coffee Union forthose who know Moshi).It was an entertaining and interesting day. I wasfascinated that the big name player in the townis Coca Cola — this company sponsorseverything from the schools to the post offices,from local businesses to the Sikh Club. Thedistinctive red signage appears everywhere.When our booking was made in Christchurchwe understood we would be trekking with a

By Serina Bailey

Serina and Alex Millen, with their guides, express their joy at reaching the top of MtKilimanjaro.

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small group of climbers, possibly up to 10people.When we had our “group” meeting the dayafter our arrival, we were told we were the onlytwo in this particular group. Initially we feltsocially deprived but, ultimately, it turned outto be an exceptional experience for us - wewere spoilt for attention. We had a guide, anassistant guide, a cook, a “waiter” (more aboutFrankie later — every girl should have one!)and as many porters as necessary to carry tents,cooking gear, chairs, food and water.Alex and I felt we could have been setting offto make a famous discovery with our attentiveand dedicated crew.The mountain lies in the heart of the KilimanjaroNational Park. Most trips to the summit andback take five or six days. All trekking must bedone with a licensed guide with their teams ofporters and there are several different routesup the mountain.We chose a lesser used route on the northernside of the mountain near the Kenyan borderas we did not want to use the more popular“coca cola” routes with the larger numbers oftrekkers and busier camps.We left our Moshi hotel in a mini van with allour crew on board. The trip to the start of ourtrek took most of the morning with a stop atMarangu Village to complete the paper work.While waiting here our guides took us to a localeating spot to enjoy greasy goat broth withcooked bananas — a “treat” which Alex and Ideclined but we did drink the milk tea (mostlymilk) as it seemed a little early to ask for abeer.As we continued winding our way northwards,around the base of the national park, we passedthrough many villages with their manyvegetable and goat markets, a funeralprocession with a brass band playing from theback of a couple of moving utes (indicatingsomeone important), oxen pulling laden cartsand grubby children playing on the edges ofthe dirt roads, amusing themselves withanything to be found.Starting in the Rongai pine forest we steadilymade our way up to our first camp, pleased atlast to be making a start. During the next threedays we quickly fell into a routine that was onlyto vary on our fourth day immediately before

the final ascent to the summit.Our guides, of course, were the decision makersand determined what time we left, when westopped for breaks and whether we went for afurther acclimatisation walk after reaching ourcamp for the night (this happens as one getsfurther up and breathing becomes noticeablymore difficult).Even so, at this point I must put in a specialword for Frankie. His smiling face would bethe first thing we saw at 6am every morningafter we struggled out of our sleeping bags (thenights are cold, long and uncomfortable),unzipped the tent flap and there he was —holding a flask of hot water with our mugs andall the necessary instant packets to make thatessential first cup of coffee. We simply did notfunction until we poured caffeine down ourthroats.A half hour later his gentle voice would tell usbreakfast was ready and the mess tent was setfor two with an array of food to energise us forthe coming day.Every night Frankie waited on us with another

wonderful array of food in the candle lit messtent. Alex and I would look at each other overthe very solid, chunky candles and think howromantic it all was — if only it wasn’t each otherwe were looking at!The food was exceptional. Every day we werepresented with fresh soups (our favourite wasfresh, hot cucumber soup, a taste sensation),fruit, sandwiches — the porters carried loavesof bread tied to the outside of their loads so asnot to squash the bread) — chicken, vegetables,avocados, pop corn and chocolate biscuits.Frankie would sometimes appear with a smallbowl of hot water — this was the only washingwater available for six days and by the end ofday one, everything was infused with dust.Within minutes of washing your hands, theywere dirty again as everything you touched wasso dusty — tents, packs, jackets, boots.We spent many hours talking to our guides aswe trekked forever upwards towards thesummit. Every topic from education to jobopportunities, from crime to corruption, fromagriculture to industry, from family life to religionwas discussed.

The morning sun on one of the glaciers at the top of themountain.

The crew which trekked up the mountain. Serina and Alex are at either end.

Continued Page 10

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Times they are a changingReaders of The Press may havenoted the article (A13 2ndOctober) titled ‘Get creative to beatthe rules’.

The article discussed “10 creative strategies forthumbing your nose at the Reserve bank’s newLVR rules and getting your foot on the propertyladder”.Of interest to the writer (and perhapsCanterbury Tales readers) is the 7th ‘creativestrategy “Call your Lawyer”. While the Societywould always advocate the seeking of advicethat strategy cites the writer Olly Newland’ssuggestion to seek funding through Lawyers’Nominee companies.There are, however, some practical difficultieswith this strategy; the foremost being that if aloan application cannot meet the Reservebank’s 80% LVR it will surely fail the Nomineecompany’s 67% requirements; i.e., the twothirds ‘rule’ of 67%.The Law Society wrote to all law firms that are

active in lending activities on 14 May and 12July this year regarding the transitioning ofLawyers lending from the purview of the Societyto the Financial Markets Conduct legislation andthe FMA. Such transitioning is to occur by 30thSeptember 2016.It is reasonable to project that compliance costsfor law firms engaging in lending activities mayrise in the new regime. I say this as currentlythere are no additional external compliancecosts if a law firm wishes to engage in lending,nor cost savings should they cease.It is my personal view that few firms willtransition their lending to the new regime andmost firms will operate a ‘sinking lid’ policy i.e.,not renew existing loans as they expire.It is also my personal view that there are twodistinct ‘camps’ of Lawyers’ lending — thosewho are diligent and well organised and thosewho are not. Those of the latter camp shouldbe aware that non-compliance with NomineeCompany rules results in a steady stream ofreferrals to the Standards Committees.Unless a firm has made a considered andresearched decision to continue lendingbeyond 2016; and is committing resources to

By Philip Strang

Nominee company lending

such, it would be unlikely that they should availa borrower of strategy #7.

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Case summaries (67)Terranova Homes and Care Ltd vFaitala — [2013] NZCA 435 —Randerson, Harrison & Miller JJ —19 September 2013.

EMPLOYMENT LAW - MINIMUMWAGE — EMPLOYER KIWISAVERCONTRIBUTIONSUnsuccessful appeal from Employment Court(EC) decision - full bench of the EC had heldthat employer was not entitled to deductcompulsory employer contributions payableunder KiwiSaver scheme from wage ofemployee paid at rate of statutory minimumwage - cross appeal by respondents relating toconstruction of a provision in the employees’contracts - principal appeal concernedrelationship between s6 Minimum Wage Act1983 (the Act) and s101B Kiwisaver Act 2006- appellant employed respondent employeesas caregivers at rest home in Wellington -employment relationship was governed byindividual employment agreement - gross wagewas $13.50 per hour - employees weremembers of KiwiSaver scheme - agreementprovided that employees’ remuneration wasinclusive of any KiwiSaver compulsory employercontributions which appellant deducted fromgross wage before tax - employees had issueda proceeding against Terranova before theEmployment Relations Authority (Authority) inwhich they claimed arrears of wagesrepresented by Terranova’s deduction of itsstatutory contribution from their wages -Authority removed the proceeding to EC fordetermination - EC held appellant in breach ofs6 of the Act and that respondents were beingpaid at rate less than statutorily prescribedminimum wage - in particular EC found: - (i)purpose of the Act was to ensure that workersreceived base wage for their work to enablethem to meet daily living expenses forthemselves and their family - minimum wagedid not have built in component of saving forretirement; - (ii) allowable deductions fromwages such as liable parent contributions andPAYE represented obligations owed byemployee personally - in contrast payment ofcompulsory employer contribution under theKiwisaver Act 2006 was employer’s notemployee’s contribution and did not constitutepayment by employer for work performed byemployee for purposes of the Act; - (iii) s101Bof the Kiwisaver Act 2006 was subject to s6 ofthe Act - where employee paid the minimumwage, employer was obliged to pay the 2%contribution in addition to minimum wage or(if the parties agreed) the gross wage mustamount to the minimum wage plus 2% -appeal on grounds that EC erred in: (a)concluding that compulsory employercontributions were not wages received byemployees for their work within meaning of

s6; (b) in rejecting appellant’s argument thats6 could not limit Parliament’s authority to enactlater contrary legislation (s101B); - (c) relevantprovisions of both Acts when read togetherentitled appellant to make deductions - HELD:(1) EC decision upheld: - EC did not err inconcluding that compulsory employercontributions were not wages received byemployees for work within meaning of s6 -payment of contribution was not “paymentsfor his [or her] work” but payment of employer’sobligation as required by law - money paid didnot belong to employee but to KiwiSaverscheme and employee’s rights ultimatelydepended on terms and conditions ofgoverning instrument - relationship betweenhours worked and amount of employer’scontribution was a means of quantifyingemployer’s obligation and did not satisfyseparate concept of payment for work; doctrine

of implied repeal did not apply given provisionsable to be read consistently on basis that s101Bwas subject to provisions of the Act applicableto minimum waged workers; s6 and s101Bread together did not authorise deductions fromwages - introductory words of s6 prohibitedemployment agreements affecting substanceof workers entitlement to prescribed minimumwage - s6 of central importance in settingminimum statutory threshold consistent withNew Zealand’s international obligations thatpurpose of minimum wage legislation was thatminimum wages should not be subject toabatement by individual agreement; - (2) asTerranova’s appeal dismissed it wasunnecessary to determine respondents’ cross-appeal - appeals dismissed - interests of justiceserved if Terranova ordered to pay 75 per centof costs for a standard appeal on a band Abasis and usual disbursements.

Comings & GoingsJoined firm/organisationRebecca Ardagh (Lane Neave), Jeremy Bell-Connell (Wynn Williams Lawyers), GregoryBelton-Brown (Lane Neave), Miriam Black(Pappril ls), Monique Bond (IC Frith &Associates), Jennifer Carr (Duncan Cotterill),Malaika Cockerell (Duncan Cotterill), ColennaCollins (Saunders & Co), Adam Cox (ChapmanTripp), Hamish Davies (Corcoran French),Catrina Hunter (Weston Ward & Lascelles),Joanna Ling (Cherry Kannangara Thomson),Catherine McCallum (Goodman TavendaleReid), Jonathan Nicolle (Anderson Lloyd),Wathsala Ponnamperuma (Cherry KannangaraThomson), Katherine Rouch (Chapman Tripp),Andrew Sclater (Saunders Robinson Brown),Ann Skelton (Markit Law), Kimberlee Smith(Cavell Leitch), Tanya Speight (Wynn WilliamsLawyers), Dhamendra Unka (Taylor Shaw),Kelsey Watson (Connors Legal), Penelope Wells(Anthony Harper), Andreea Wilson (InsolvencyManagement).

MovedJohn Goddard (Anthony Harper to CanterburyCommunity Law), Alanya Limmer (Solid EnergyNZ Ltd to Lane Neave), Richard McLoughlin(Trustee Executors Ltd to Anchorage TrusteeServices Limited), Sarah Manning (SimpsonGrierson to Cavell Leitch), Andrew Orme (TheProperty Group Limited to Anderson Lloyd),Catherine Schache (Duncan Cotterill to ARANZGeo Limited).Change of detailsMacalister Todd Phillips, Lyttelton Branch, 50London Street, Lyttelton.Adrienne Edwards Barrister, 92 Fernside Road,RD 1 Kaiapoi 7691.Charlene Benson, 8 Shepherd Avenue, WestMelton, Christchurch 7618.Commerce Commission, PO Box 9237 TowerJunction, Christchurch 8149.Young Hunter, Level 2, Young Hunter House,134 Victoria Street, Christchurch 8013.

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The days were sunny and clear, the nights longand cold. We trekked through the differentzones and found that our breathing andsleeping had become affected from about4000 metres. On reaching base camp Kibo(almost 5000 metres), the final camp beforethe final ascent, we noticed real difficulty inexerting ourselves.We arrived here early afternoon and the firstthing we saw were two women being almostdragged off the mountain between guides —seriously affected by their final ascent. One waslater taken by stretcher from the camp unableto stand. A sobering sight.However, it was exciting being at base campas we tried to rest for the night-time ascent tocome. At 10pm we were given hot tea andbiscuits (a final supper perhaps!) before leavingcamp at 11pm.We walked by the light of our headlamps aswe zigzagged our way up the scree slopes. Itfelt bitterly cold but the temperature was toplummet many degrees more by 3am. Despitethe many layers of good thermals, jackets,gloves and hats the cold still seemed to seepinto our wary bones. We saw several climbersheading back down the mountain beforereaching half way, obviously unprepared for thebitter cold.Half way up, our heads started to ache. Ournoses ran and the snot froze on our face. Ourguides ask us not to take any pain relief — theywanted to know how we were coping,unmedicated, with the altitude.We passed a Japanese woman, on her kneesvomiting. I asked Alex where did this crazy ideacome from? Our pace was so slow I believed itwould take a week to get there. I playedmindless counting games in my head to passthe time and overcome the slow motion likefeeling of the climb. We stopped for a drink ofhoney sweetened tea somewhere up themountain and it seemed so difficult to workout how to hold the cup.

The scree slopes become rocky, with good-sized boulders to scramble over. I could notlook up — the headlamps shining in front ofus seemed so far away.I lost all sense of time and was amazed whenwe suddenly reached Gillmans Point fromwhere the climb tracks around the edge of thevolcanic crater. We were now at 5695 metres— only 200 metres higher to reach the ultimatepoint. We felt incredibly emotional. We cried.We were going to get there, a significantachievement for both of us.It was still pitch black and very cold but withinan hour the sky began to lighten and we feltthe excitement of the pending sunrise. By nowwe had reached Stella Point and waited hereto take photos of the beautiful sunrise as theice reflected the golden yellow and orangehues of the sun casting its spectacular lightonto the impressive glaciers. We feltoverwhelmed. It was stunning.Within another half hour we reached the finalpoint — Uhuru, the top of the mountain at5895 metres. We were standing on the Roofof Africa.All the difficulties of the preceding 8 hours orso escaped us and we continued to take fartoo many photos (camera batteries havingbeen kept close to our hearts to keep fromfreezing). Other people grabbed our camerasso we could have photos taken together andwith our guides. Everyone was in amazingspirits but within a very short time we had tostart the descent.We retraced our steps to Stella and GillmanPoints, scrambled over the large boulders andreached the scree slopes once more. It lookeda long way down to base camp and suddenlywe felt very tired.The thought of zigzagging back down the longslopes didn’t appeal — scree surfing seemeda much better option. This saved time butraised a dust storm and by the time we reachedthe camp, dust had permeated every pore. Wewere beyond filthy!At base camp we were allowed two hours to

rest before setting off to lower slopes.Our exhilaration competed with tiredness butwe readily trekked back to lower levels andeasier breathing. We stopped at 3700 metres,which seemed relatively normal.To say we slept well that night would be anunderstatement. It was the first night on themountain I didn’t feel cold or uncomfortable. Ijust slept.The following day was our walk out of thenational park. The scree slopes had transformedfrom scrub to bush to lush, green, monkey filledforests. It seemed the monkeys lay in wait forthe trekkers and laughed at us as we walkedby.Back in Moshi by late afternoon we had twothings on our minds — a cold beer and a hotshower. The beer was easy. We sat in our hotelcourtyard and ordered. The Kilimanjaro brewslid down our dust lined throats feelingsensational. We then raced up to our room tobe first in the shower but.....no hot water!We were leaving for Arusha the next morning(the first step on our way to the Serengetti) soneeded to get ourselves and some of ourclothes clean. It was a matter of grin and bearit as the cold, blackened water swirled downthe plughole.Our guides returned to pick us up much laterin the evening to take us into Moshi tocelebrate. It turned into an eventful eveningwith colourful negotiations over alcohol bills andtaxi fares. It ended when I was offered what Ithought was a drink of cognac but turned outto be Konyaki — the local fire water, a truly gutburning experience!It was well into the early hours now and asmuch as I hate to admit it, age is definitelycreeping up and the thought of a comfortablebed for the first time in a week was too much.Alex decided she wasn’t hanging out in Moshion her own, especially as we had an early startnext morning for the next stage of our travelsso, after another taxi fare stoush, we were backat our hotel tucked up between clean sheetsdreaming of leopards, cougars, wilderbeast andpink flamingos. Another story!

Base Camp Kibo..........from where Serina’s group started its final ascent.

‘The Kilichallenge’Continued from Page 7

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Canterbury WestlandBranch/NZLS

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NZLS Continuing Legal Education(CLE Limited)

To register and for otherinformation check the CLE website,

www.lawyerseducation.co.nz

ChristchurchNovember

5 — Update on Contract.12 — The Role of the Trustee (alsoWebinar, 20 November).20-21 — Reading accounts and balancesheets.26 November — Webinar, The RetirementVillage option, advising your clients on thebenefits and pitfalls.26 — Immigration and Protection Tribunal.27 — Trust Account Supervisor Training.

Out of ChristchurchLawyer as Negotiator, Wellington, 12-13November, Auckland, 19-20 November.Introduction to High Court Civil LitigationSkills, Auckland, 25-26 November.Family Law Conference, Auckland, 21-22November, pre-conference workshop, 20November.Mediating Dangerously, workshop,Auckland, 15 November, Wellington, 18NovemberNegotiation Masterclass, Auckland, 27November.

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This, we believe, will set students up with skillsfundamentally required but never heldimportant by this or other universities in NewZealand. Let me be clear — we at Canterburyare not here to turn law students into bleedingheart liberals. Neither are we are here to instila philanthropic sense of service for the sake ofservice into students. But we are also not hereto be a degree factory.We are here to make a difference and thatincludes our students as much as members ofthe Faculty. Employers and the world at largeneed graduates who are able to deal with allmanner of issues in a nuanced andsophisticated way through the application of avariety of skills that illustrate an ability to thinkand act clearly, logically and professionally.Come 2015 all law students at CanterburyUniversity will have to accrue 100 hours ofcommunity and/or professional service (paidor unpaid) over the life of their degree.

In addition to this requirement students willundertake courses on such things as curriculumvitae development, professional liaison,interview skills and working within a professionalenvironment.Further, all law students will have to undertakeone of three internships — either the LegalInternship, the Community Law Internship oran internship with the New Zealand PublicInterest Project. The Community Law Internshipand the New Zealand Public Interest ProjectInternship will both be launched in February2014 (watch this space).The Legal Internship has just been launchedand will, this summer, already be the singlelargest internship programme at the Universityof Canterbury if not the largest across all theuniversities in New Zealand.We are also very pleased to announce theadvertisement of a new key strategic position -the Director of Clinical Legal Studies. Theadvertisement for the position can be foundon the UC vacancies page at: http://www.canterbury.ac.nz/joinus/.This person will be not only charged withDirecting the Clinical Programme but will leadresearch on the justice gap in New Zealandand will also seek to develop a much closerrelationship with the Canterbury legalprofession.We are greatly looking forward to working moreclosely with the Canterbury legal profession andthe wider Canterbury community. We arecommitted to making a difference andproviding an opportunity for our students tochange the world and to stand out from thecrowd as multi-skilled leaders as a result. Theinnovations detailed here can be further viewedin our strategic plan which is available on ourwebsite — http://www.laws.canterbury.ac.nz/.

Making a differenceContinued from Page 5

Honourable lineup. The Chief Justice Dame Sian Elias is flanked by Associate JudgeMatthews, Justices Kos and William Young and, on her left, Justices Panckhurst and Gendallat the admission ceremony for new Christchurch QCs Pip Hall and Jonathan Eaton.

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On Friday 20th September anAdmission Ceremony was held and39 new admittees joined theprofession.

One of these was Rachel Walsh. Rachel saidthat the admission ceremony was fantastic andeverybody who attended enjoyed theexperience. Rachel’s father, Judge Noel Walsh,was of course there to enjoy this special daywith his daughter and as she acknowledges,“Dad inspired me to follow him into theprofession”.Unfortunately her mother passed away sixmonths ago but Rachel knows she would havebeen very proud of her and thanked her mumin her speech for getting her to where she istoday.The ceremony was followed by an afternoontea at The George where Rachel Dunninghamand Stephanie Mann both welcomed the newadmittees to the profession. The newadmittees are:Gregory Stuart Belton-Brown, Adam David Cox,Michael Andrew Gibbs, Rachel Sarah Irwin,Sarah Elizabeth Leyser, Joanna Jen En Ling,Wathsala Tahani Ponnamperuma, ClaireElizabeth Riach, Katherine Semoe Rouch,Andrew John Sclater, Sarah Jane Simpson,Rachel Elizabeth Walsh, Rebecca Jane Ardagh,Jeremy Patrick Bell- Connell, Malaika OdetteCockerell, Hamish Gordon Rees Davies, AnnaMary Thomas Galvin, Troy James Gillan,Christina Margaret Gordon, Catrina MarieHunter, Natalie Melanie Jones, ChristopherMark Jury, Catherine Janet McCallum, RosemaryMargaret Mein, Heather Fergus Neeson,Jonathan William Cranford Nicolle, KimberleeAmber Gail Smith, Stephanie Anne Turner,

Judge Noel Walsh and his daughter Rachel.

Nadia Serena Watson, Miriam MargaretCatherine Black, Colenna Maree Collins, BelindaFrances Sheila Egden, Thomas Charles Glasson

The fact that more than 50% of the newadmittess were female got Zylpha Kovacsthinking about the history of women jurorsin New Zealand. Here she takes a quick lookback.

On the 26th October 1942 the Women JurorsAct came into force. This Act allowed, for thefirst time, women aged between 25 and 60 tovolunteer to have their names placed on thejury list.1943 saw the first female juror, Miss ElaineKingsford, who sat on a case at the AucklandSupreme Court. While being interviewed at thetime she made the “radical suggestion” thatthere may even be women judges in the future!Very few women took up the opportunity toserve on juries in the 1940s and 1950s.In 1963 the Act was amended to include alladult women’s names on the list — althoughthey could claim automatic exemption.Automatic exemption was later updated toensure both men and women had the samejury responsibilities.The 1940s saw a number of important

milestones for New Zealand women, namely,first women police officers in 1941, MaryAnderson was the first women judge in 1945and then her and Mary Dreaver were the firstwomen to be appointed to the LegaslativeCouncil in 1946. These milestones were duepartly to the war and the number of menserving overseas.While the effects of the war advanced theposition of women in New Zealand in the1940s, the women’s cause was fought longand hard back in the 1890s by the suffragettes.This fight culminated in the Electoral Act of1893 granting women the right to vote inparliamentary elections.New Zealand was the first self-governingcountry to give women the vote.Notwithstanding that, there was still a long wayto go from there to 1919 for the right to standfor Parliament, the advances in 1940s and 50s,Equal Pay Act in 1972, Ministry of Women’sAffairs in 1985 to name a few.Some would say there is still a way to go whileothers suggest that today women can “doanything.”

Nation, Harry Thomas Shaw, Jamie-Lee Tuuta,Dhamendra Ashok Unka, Kelsey PatriciaWatson, Andrew James Palliser.

39 new lawyers admitted

....still a way to go?

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