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LawTalk issue 860

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  • Law Talk

    13 M A R C H 2015

    860

    Going soloThe rise of self-represented

    litigants and the implications for access to justice

  • Going solo 6 e self-represented litigant. Does self-representation provide access to justice, and does the increase in litigants appearing in person contain a warning to the profession?

    Our Profession, Our People 12

    Inside the law 16 e Millennials are here. Now.

    Practising Well 20Managing your health.

    Keeping high achieving women in the profession 22We need to readjust our mind set in regard to womens careers, work/family con ict and the gender gap in leadership. Conventional wisdom about womens careers does not always square with reality.

    Gallavin on litigation 24 e prevalence of self-representation in New Zealand is likely on the rise. It is a reality that we must deal with. It will undoubtedly place a spotlight on many practices and will ensure that standards of (dare I say it) customer service are increased.

    Bringing certainty to voidables 26Trade creditors will have a lot more certainty about their commercial transactions following the Supreme Courts unanimous decision in Allied Concrete Ltd.

    Leadership in law fi rms 28LawTalk speaks with law rm development specialist Simon Tupman about leadership in law rms.

    Letters to the Editor 29

    Commercial lawyers beware 32Avoid becoming an accessory to a clients white collar crime.

    Contracting with Artifi cial Intelligence 34Does the emergence of advanced arti cial intelligence (AI) require us to consider the question of legal personhood of AIs?

    Wrangle over design of jeans 36 ere were seven issues before the Court of Appeal in JeansWest Corporation (New Zealand) Limited v G-Star Raw C.V. and G-Star Australia Pty Limited.

    NZLS CLE CPD calendar 38

    Lawyers Complaints Service 40

    Coming up 43

    Classifi ed Advertising 44

    Inside

    3

    13 March 2015 LawTalk 860

  • LawTalk is published by the New Zealand Law Society for the New Zealand legal pro-fession. It is published fortnightly and has been published since 1974. LawTalk is sent to every lawyer in New Zealand who holds a current practising certifi cate. Lawyer num-bers change over the year, but range from 11,700 upwards. LawTalk is also sent to fur-ther recipients who include members of the judiciary, Law Society associate members,

    legal executives, Members of Parliament, media, academics and others involved in the legal services industry. Total circulation ranges between 12,400 and 12,800 copies.An online version of LawTalk is available on the New Zealand Law Societys website at www.lawsociety.org.nz. This contains most of the articles included in each issue and a full pdf fi le of each hardcopy issue may also be downloaded.

    LawTalk is printed on Sumo Matte. This is an environmentally responsible paper, produced using Elemental Chlorine Free (ECF), FSC certifi ed, Mixed Source pulp from Respon-sible Sources, and manufactured under the strict ISO14001 Environmental Management System. The FSC certifi cation means that the international Forest Stewardship Council

    has certifi ed that the paper used to produce LawTalk meets its requirements at all stages along the production chain. The shrink wrap used for delivery of LawTalk is 25 micron biodegradable fi lm manufactured in New Zealand. This degrades naturally. If you wish to discard LawTalk please recycle it. The wrapping may be composted.

    ENVIRONMENTAL STATEMENT

    EDITOR Frank Neill 04 463 2982editor@lawsociety.org.nz

    WRITERSElliot Sim 04 463 2902elliot.sim@lawsociety.org.nz

    Sasha Borissenko 04 463 2910sasha.borissenko@lawsociety.org.nz

    SENIOR DESIGNERAndrew Jacombs 04 463 2981andrew.jacombs@lawsociety.org.nz

    DESIGNERDaz Yang 04 463 7837daz.yang@lawsociety.org.nz

    ADVERTISINGChristine Wilson 04 463 2905advertising@lawsociety.org.nz

    COMMUNICATIONS MANAGERGeoff Adlam 04 463 2980geoff.adlam@lawsociety.org.nz

    PRINTINGLithoprint, Wellington

    DISTRIBUTIONWestern Mailing, Lower Hutt

    ISSN 0114-989X (Print)ISSN 2382-0330 (Online)

    Unless it is clearly indicated, the views expressed in LawTalk are not to be taken as those of, or endorsed by, the New Zealand Law Society. No responsibility whatsoever is accepted by the New Zealand Law Society for any opinion, information, or advertisement contained in LawTalk.

    Established in 1869, the New Zealand Law Society regulates the practice of law in New Zealand and represents the interests of lawyers who choose to be members. The powers and functions of the Law Society are set out in the Lawyers and Conveyancers Act 2006. As well as upholding the funda-mental obligations imposed on lawyers who provide regulated services, the Law Society is required to assist and promote the reform of the law, for the purpose of upholding the rule of law and facilitating the administration of justice in New Zealand.

    26 Waring Taylor St, Wellington 6011, New Zealand

    04 472 7837 PO Box 5041, Wellington 6145,

    New Zealand, or DX SP20202President Chris Moore

    Board Allister Davis (South Island), John Unsworth (North Island), Kathryn Beck (Auckland), Mark Wilton (Wellington)

    Executive Director Christine Grice

    News PointsDiscovery and case managementJustice Winkelmann, Chief High Court Judge, and Justice Asher, Chair of the Rules Committee, have written a report on the e ectiveness of the 2011 and 2012 discovery and case management reforms. eir report can be found at www.courtsofnz.govt.nz/front-page/about/system/rules_committee/new.

    Legal services prices upStatistics New Zealands producers price index for the December 2014 quarter shows the prices for legal services (personal and corporate) rose by 0.5%. is compares with a rise of 0.6% in the December 2013 quarter.

    Legal services rose by 3.6% during the year to 31 December 2014. This was the same increase as occurred during the 2013 calendar year.

    Security sensitive informationThe Law Commission is reviewing the laws that determine how security sensi-tive information should be dealt with in court proceedings.

    e review will look at how to protect information that may prejudice New Zealands security. It will also consider whether the current rules governing dis-closure of such information in court, and the use of that information by the Crown or another party in the proceedings, need to be reformed.

    e Law Commission plans to publish an issues paper on the topic in mid-2015, when it will call for submissions.

    Judicial integrityA new judicial integrity initiative was launched by International Bar Association (IBA) President David Rivkin on 19 February. e initiative aims to raise awareness of the legal consequences of judicial corruption where it exists, combat it through promot-ing the highest standards of integrity among judges, prosecutors, court personnel and lawyers, and further the best practices of countries that have worked e ectively to eliminate corruption.

    is issue requires the attention and resolve of the legal profession as a whole to overcome it, and the IBA, as the global association of lawyers and bar associations, can uniquely contribute to the ght against judicial corruption, Mr Rivkin says.

    4

    LawTalk 860 13 March 2015

  • Access to justiceAccess to justiceA is the hallmark of a civilised society.These words were spoken by the United Kingdoms Justice Secretary, Ken Clarke, in 2010.In fact it was with those words that the Justice Secretary introduced

    his governments radical changes to legal aid. Justice Secretary Clarkes changes, which he described as reforms, amounted to a demolition job on publicly funded access to civil justice.

    At the time, I wondered if the Justice Secretary really did genuinely believe that access to justice is the hallmark of a well-functioning democracy.

    I certainly do. Access to justice is a fundamental common law right. e issue is what does access to justice mean the tensions between available resources, proportionality and access to justice services and legal representation is constant. New Zealands reputation as one of the least corrupt countries in the world depends on a well-functioning justice

    system providing a ordable and timely justice.A ordability of access to justice is increasingly an issue in our society. As the Chief High Court Judge,

    Justice Helen Winkelmann, said in the 2014 New Zealand Law Foundation Ethel Benjamin Address: Present levels of civil legal aid inevitably mean that many individuals cannot look to the courts to enforce their rights or obtain a remedy for a wrong. e provision of civil legal aid, she said, is critical to ensuring access to justice. Justice Winkelmann then went on to talk about those who come to court to enforce their rights, but come unrepresented because they lack the money to pay a lawyer.

    You might think that people arguing their own cases before courts is the system operating how it should, people are accessing the courts. But fundamental aspects of our system of justice are built upon the assumption that parties will be legally represented. is means that growing levels of unrepresented litigants are a challenge to the functioning of that system. Equally as important is the fact that those who come before the courts unrepresented risk being disadvantaged by their lack of representation, she said.

    is issue of LawTalk has a particular focus on self-represented litigants. It is an important topic for the profession. e gures we have seen on unrepresented litigants show that they are increasing, and that this increase has followed government policy changes, such as changes to legal aid and to the Family Court.

    is increase in the number of peopl