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Council BriefIssue 452 November 2015
The monthly newspaper of the Wellington Branch New Zealand Law Society
Wellington
ISSN 2382-2333(Print)ISSN 2423-0103 (Online)
From the
President
Council Brief AdvertisingPorirua Dinnerdise.net.nz
Reynolds Advertising
Valid wills 3Annual Dinner 4New NZLS President 5Separating parents 6
INSIDE:
FIRST, my grateful thanks tothe many members of our
profession who completed ourWellington Branch EngagementSurvey.
The survey has provided uswith extremely helpful feedbackand ideas, and was of invaluableassistance in informing Coun-cil’s Strategic Planning sessionin October. (More on that be-low.) We are still digesting thesurvey responses and will reporton the results in future. In brief,though, satisfaction levels arehigh, and preliminary resultsoverwhelmingly endorse the keypriority areas set by Council in2014, and the work Council hasbeen leading in conjunctionwith our Branch Manager, ourcommittees and the wider NewZealand Law Society. I wouldlike to particularly acknowledgeand thank Council memberJulius Maskell for his work com-piling the survey and leadingthis project.
Strategic planningIn October our Branch Coun-
cil undertook its Strategic Plan-ning session, again superblyfacilitated by Paul Rayner ofBetterChange.
This year we adopted theSOAR approach, assessingStrengths, Opportunities, Aspi-rations, Results. Our areas offocus were threefold:• Engagement & participation• Professional development• Pastoral care & member bene-
fits.As a result of the workshop, we
determined our main prioritiesfor the rest of the Council year:1. Online presence: updating the
website and a Facebook page.2. A Complaints Information
Pack: for practitioners whenthey are advised of a com-plaint against them.
3. Instituting a CPD Register:consisting of CPD topics, andthe people who will presentCPD (especially locals in out-lying areas).
4. Sharing best practice: moreengagement with the profes-sion, particularly the bigfirms, on their initiatives (e.g.,wellness, flexible hours, reten-tion).
5. The Solicitors BenevolentFund: raising its profile, andfundraising.
6. A re-launch of regular collegi-al events: including Fridaynight drinks; walking and run-ning groups; and adding awider variety of featuredevents. Also, introducing newways of promoting our events,and encouraging friends andpartners to come along.We will be doing more work
on the delivery of these out-comes, and this will be discussedat our November Council meet-ing. We are also looking forwardto catching up with our commit-tee convenors, who will be join-ing us at our November meeting.
Many thanks to our Councilmembers for an excellent ses-sion. I also thank Paul Rayner ofBetterChange for his time andmarvellous facilitation, and VicePresident Cathy Rodgers for herwork in preparing for the strate-gic planning session.
Branch Council undertakesstrategic planning session
Members of the judiciary taking part in the ‘Life on the Bench’ event held recently at Buddle Findlay were Hon Justice Kós, HonJustice Winkelmann, retired Family and District Court Judge Paul von Dadelszen QSO, and Chief District Court Judge Doogue.
Members of the Women in Law Committee are Caroline Rieger, left, Karen Feint and Morgan Coats, right.
THE Women in Law Committee and BuddleFindlay held a highly successful panel
discussion recently about the process of becominga judge and what it is really like when you are amember of the judiciary.
The panellists for the event were Justice Winkel-mann, Justice Kós, Chief District Court JudgeDoogue and retired Family and District CourtJudge, Paul von Dadelszen, QSO. The wealth of ex-perience and humour that the panellists providedhelped make for a thoroughly enjoyable and in-formative event.
The event chairpersons, Women in Law commit-tee member Morgan Coats and Committee Co-Convenor Caroline Rieger, facilitated discussionsaround the question of becoming a judge: a possi-ble career path to be taken if you want to be a judge,whether or not it is essential to go to the independ-
ent bar if you are wanting to be appointed, thedifferences between District Court and HighCourt (and higher Court) appointments and sev-eral other topics. The discussions were comple-mented by comical personal anecdotes andoccasional words of warning from the panellists.
The key traits required to be a judge, the panel-lists agreed, include humanity, humility, patience,a touch of humour and legal acumen.
What was apparent was that being a member ofthe judiciary is not at all lonely – a common mis-conception. All the panellists commented on howmuch they enjoyed their time on the bench and nomatter how long you are a member of the judici-ary, it is not quite long enough.
Those attending were impressed by the open-ness of the judges and appreciated an enlighten-ing and enjoyable CPD compatible event.
‘Life on the bench’ – what is it really like?By Caroline Rieger
Donations to the Solicitors Benevolent Fund can be made through:
• “Give a Little” http://www.givealittle.co.nz/org/Solicitors, which will be automatically receipted, or
• by Direct debit: Bank of New Zealand: 02-0506-0101108-097
All donations go directly to the capital reserve. The Solicitors’ Benevolent Fund Trust is registered as acharitable trust (number CC48709) and has tax deductible status.
If a receipt is required when making a direct debit, please email [email protected] with your name,the amount deposited and a contact number to ensure a receipt is issued and sent to the correct place.
The Solicitors’ Benevolent Fund – ways to donate
Paul Rayner of BetterChange leads thestrategic discussion.
Newly sworn-in Justice Matthew Palmer’s first High Court sitting was an admission ceremony in Wellington last weekfor Isaiah Okorie. Mr Okorie, who is from Nigeria and was admitted to the Nigerian bar in 2006, is based in Australiaand wants to be able to practise in all three jurisdictions. It will probably be Justice Palmer’s only Wellington sittingas he will be based in Auckland. Moving counsel was Geoff Adlam, Wellington Branch member and New Zealand LawSociety Communications Manager.
Wellington Branch Diary Nov-DecMonday 9 NovemberCriminal Law Committee
Tuesday 10 NovemberMoney Laundering: Independent Practitioners Committee, 5.15pmLaw Society Building, 26 Waring Taylor Street (bookwhen.com/wellington-branch)Vulnerable Witnesses – Children, NZLS CLE Webinar, 11am-12.30pm 1.5 CPD Hrs
Thursday 12 NovemberCourts, Tribunals & ADR CommitteeMeetings – Legal Essentials, NZLS CLE Webinar, 11am-12.00pm 1 CPD Hrs
Monday 16 NovemberWills, Estates & Trusts Law Committee
Mon-Tues 16-17 NovemberReading Accounts and Balance Sheets, NZLS CLE Workshop,Terrace Convention Centre 7 CPD Hrs
Tuesday 17 NovemberFamily Law CommitteeDistrict Court Etiquette, Criminal Law Committee seminar, Jury Assembly Room,Wellington District Court, 5.30-7.30pm (bookwhen.com/wellington-branch)
Wednesday 18 NovemberWellington Branch Council meeting
Thursday 19 NovemberImmigration Law CommitteeRetirement – Villages, Subsidies, Loans, NZLS CLE Webinar, 11am-12.30pm1.5 CPD HrsFinal Sitting of Coroner Garry Evans, 4pm Courtroom 5.01, Wgtn DistrictCourt RSVP [email protected]
Friday 20 NovemberInformal drinks at Wellesley Boutique Hotel
Monday 23 NovemberEmployment and Discrimination, NZLS CLE Webinar 1.5 CPD Hrs
Tuesday 24 NovemberCouncil Brief deadline December issue
Tues-Wed 24-25 NovemberLawyer As Negotiator, NZLS CLE Workshop, Terrace Convention Centre 11.5 CPD Hrs
Tuesday 24 NovemberUpdate on Contract, NZLS CLE Seminar, Wellesley Boutique Hotel 2.5 CPD Hrs(Webinar 11am-noon 1 CPD Hr)
Wednesday 25 NovemberLegal Assistance CommitteeParole Law Committee
Thursday 26 NovemberHuman Rights Committee
Friday 27 NovemberWomen in Law Committee
Friday 11 DecemberAdmissions
COUNCIL BRIEF, NOVEMBER 20152 News
Crossword SolutionsFrom page 7
Across: 7 Lariat; 8 Select; 10 Opinion; 11 Paste;12 Emit; 13 Fence; 17 Quits; 18 Peri; 22 Dwarf;23 Ill-fame; 24 Euclid; 25 Capers.
Down: 1 Almoner; 2 Prairie; 3 Ratio; 4 Respect;5 Tense; 6 Other; 9 Uncertain; 14 Fun-fair; 15Relaxed; 16 License; 19 Idled; 20 Hatch; 21 Float.
Cryptic Solutions
Quick SolutionsAcross: 7 Expert; 8 Zenith; 10 Emotion; 11 Lucid;12 Sane; 13 Bogus; 17 Greed; 18 Pair; 22 Thing;23 Crucial; 24 Result; 25 Revere.
Down: 1 Reverse; 2 Appoint; 3 Drain; 4 Zealous;5 Pinch; 6 Shade; 9 Innocence; 14 Wriggle; 15Mariner; 16 Trolley; 19 Story; 20 First; 21 Queer.
Invitation from Wairarapa practitionersfor a collegial lunch in a country garden
Bring your own drink but food will be provided by Wairarapa practitioners,although a donation to the trust fund for Louise Elder’s three girls would be
appreciated. RSVP essential and can be made at
http://bookwhen.com/wellington-branchFor those wanting to make a weekend of it, there are other Wairarapa
events and Toast Martinborough is on that Sunday.
Wairarapa lawyers are having a collegial gathering for lunch at the home &country garden of Adrienne Hewitt and Grant Allan and cordially invite
Wellington Branch lawyers to join them
Saturday 14 November, 12.30pm, 139 Tararua Drive, Upper Plain, Masterton
By Robin AndersonWellington Branch Librarian
Library News
MADESIGNm
Answers for puzzles from page 7
1 Rambunctious
2 Black wins if black moves first:1…exBf5 2 g7 (if 2 d6 then 2…fxRg43 d7 gxNh3 4 d8=Q 4 hxRg2#)2…fxRg4 3 g8=Q gxNh3 4 Qe6(threatens 5 Qe3#) 4…hxRg2#.However, white would win after 1dxe6 or 1 Bxe6, as this eliminatesblack’s best chance (stalemate is outof reach if white is careful becausethe black king has mobility).
WELLINGTON Queen’s CounselMatthew Palmer has beenappointed a Judge of the HighCourt.
Justice Palmer graduated withan LLB (Hons) (First Class) in1987. He has degrees in econom-ics and political science from theUniversity of Canterbury and aMasters and Doctorate in Lawfrom Yale Law School. JusticePalmer held positions at theTreasury and as Deputy Secre-tary for Justice (Public Law) be-fore taking up the role of DeputySolicitor-General (Public Law) atthe Crown Law Office in 2008where he remained until 2012.
While working in the publicsector, Justice Palmer providedadvice to Ministers, Cabinet and
select commit-tees on a range ofmatters includingthe agreementof protocols be-tween the Com-missioner ofInland Revenueand Solicitor-
General. He was lead negotiator forthe Crown in an internationalcompensation claim for the MVRena and in the first historical set-tlement of a Treaty of Waitangiland claim in New Zealand.
In 2012, Justice Palmer joinedthe independent bar and was ap-pointed Queen’s Counsel in 2014.He has specialised in litigationand advice challenging or de-fending decisions of government,
Crown entities and public bodiesand has led argument in over 50public law cases in the SupremeCourt, Court of Appeal, HighCourt and Waitangi Tribunal.
Justice Palmer was also ProVice Chancellor and Dean ofLaw, and Director of the NZ Cen-tre for Public Law, at VictoriaUniversity of Wellington for fiveyears. He has taught law at theVictoria University of WellingtonSchools of Law and of Govern-ment, Hong Kong UniversityLaw Faculty, Yale Law School,the Australian and NZ School ofGovernment and the Universityof Chicago Law School.
Justice Palmer was sworn inon 27 October and will sit inAuckland.
Appointment of High Court Judge
THE Wellington Library has a new ResearchLibrarian starting on Thursday 19 November. Hername is Nicola Stedman. She has a law degree andhas nearly finished a library qualification. Shecurrently works in the Otago Library as assistantlibrarian and she also writes headnotes for theLINX database. We look forward to welcoming herto Wellington
Professional responsibility database
We also have a new database of interest to prac-titioners. It is the LexisNexis New Zealand onlinework Professional Responsibility in New Zealandwritten especially for lawyers with a lot of relevantand timely information for your day-to-day lifeand any lawyerly problems you may encounter.
November 27 2015 – Third Biennial LabourLaw Conference: New Zealand Labour LawSociety, VUW Law School, Wellington.www.victoria.ac.nzNov 30-Dec 3 2015 – Annual Conference ofthe Law and Society Assn. of Australia andNew Zealand, Flinders University, Adelaide.www.lsaanz.orgDecember 4-5 2015 – 4th InternationalHumanitarian Law Moot Court Competitionfor NZ law students, VUW & Old HighCourt. Red Cross/NZ Law Foundation.www.lawfoundation.org.nzDecember 7-8 2015 – InternationalOrganisations and the Rule of Law: Perils andPromise, NZ Centre for Public Law, VictoriaUniversity of Wgtn. www.victoria.ac.nz/law/about/eventsDecember 10-12 2015 – Australia & NZ Law &History Society (ANZLHS) 34th Conference,Adelaide. law.adelaide.edu.au/anzlhs)January 7-11 2016 – 5th InternationalConference on Adoption Research (ICAR5),Auckland. www.icar5newzealand.comMarch 3-5 2016 – Dispute Resolution on theEdge: International Academy of Mediators,Queenstown. www.aminz.org.nzApril 14-15 2016 – 13th Australasian PropertyLaw Teachers’ Conference, CanterburyUniversity School of Law.www.laws.canterbury.ac.nzApril 14-16 2016 – ICAB World BarConference, Edinburgh. www.nzbar.org.nz
May 12-13 2016 – ILANZ (In-house LawyersAssociation) Annual Conference, Nelson.www.ilanz.org.nzMay 19-20 2016 – Symposium on Quasi-Constitutionality and ConstitutionalStatutes, NZ Centre for Public Law, VUWFaculty of Law. [email protected] 27-29 2016 – Banking & FinancialServices Law Assn. 33rd Annual Conference,Queenstown. www.bfsla.orgSeptember 12-14 2016 – Public LawConference: The Unity of PublicLaw? University of Cambridge.www.publiclawconference.law.cam.ac.uk/2016-conferenceSeptember 18-23 2016 – 23rd ANZFSSInternational Symposium of ForensicSciences, Auckland. www.anzfss2016.orgSeptember 18-23 2016 – IBA AnnualConference, Washington DC www.ibanet.orgSeptember 22-24 2016 – RMLA (ResourceManagement Law Assn.) Conference 2016,Nelson. www.rmla.org.nzNovember 4-7 2016 – Asian Patent AttorneysAssn. Annual Council Meeting, Auckland.www.apaa2017.com2016 (date to follow) – Aviation Law Assn. ofAustralia & NZ. Annual ALAANZ Conference,Canberra.April 5-9 2017 – Inter-Pacific Bar Assn.Annual Meeting & Conference, Auckland.ipba.org
Conferences
It can be used in the library on the public com-puters and in the branch library kiosks and isfound under the Administrative & Public link in thedatabases menu.
Auckland library move
Our colleagues up in the Auckland Library aremoving temporarily while a new courtroom andconference room are constructed using part oftheir library space. All the staff will be in the Auck-land District Court till this work is finished. A lot ofthe books will still be in the High Court Library butyou will need an access card 24/7 to get into thisspace. For more information, see the NZLS web-page: http://www.lawsociety.org.nz/law-library/auckland-hc-library-move
New booksCorporate governance intensiveWellington : New Zealand LawSociety 2015 KN255.L1 NEW
Cyber bullying, Wellington : NewZealand Law Society2015 KN340.5.L1 NEW
Cyber law : what happens to yourbits & bytes when you die?Wellington : New Zealand LawSociety 2015 KN347.L1 NEW
Engaging with Maori business : thepost settlement iwi dynamicWellington : New Zealand LawSociety 2015 KM208.431.L1 NEW
Environmental law in NewZealand, Wellington : ThomsonReuters 2015 KN94.L1 ENV
Estate administration in the 21stcentury, Wellington : New ZealandLaw Society 2015 KN142.L1 NEW
Farm succession planningWellington : New Zealand LawSociety 2015 KN120.L1 NEW
Gale on easements, London: Sweetand Maxwell 19th ed 2012KN65.1.A1 GAL
Health & safety in employmentWellington : New Zealand LawSociety 2015 KN198.L1 NEW
Health law in New ZealandWellington: Thomson Reuters2015 KN185.L1 HEA
Interviewing children : the steps tosuccess, Wellington : New ZealandLaw Society 2015 KN176.L1 NEW
Law and custom of theconstitution, Oxford: ClarendonPress KM31.A1 ANS
Legal Executives Conference,August 2015 Wellington : NewZealand Law Society 2015KL87.2.L1 NEW
LinkedIn for lawyers, Wellington :New Zealand Law Society 2015KL98.L1 NEW
Deadline December Council Brief Tuesday 24 November—
Proceedings before the CoronersCourt, Wellington : New ZealandLaw Society 2015 KL254.L1 NEW
New research librarian this month
❑ Continued on page 5
COUNCIL BRIEF, NOVEMBER 2015 3News
THE Wellington Branch of the Law Society has a range ofresources for practitioners to use to resolve difficult issues. Oneof them is the Ethics Committee, whose principal objective is togive guidance on the highest ethical standards of practice – and aview on when those standards might not have been achieved.The standards apply in relation to clients, other lawyers, thecourt and society generally.
Lawyers are of course also bound to follow the statutoryrequirements of the Lawyers and Conveyancers Act 2006, theRules of Conduct made under that Act and the guidance issuedfrom time to time by the Law Society, such as the rules one-dealing. But the subject of lawyers’ ethics is discussed inarticles and has also been the subject of case law.
Lawyers should however be aware that the views of the EthicsCommittee have no particular standing. The Committee is thereonly to provide guidance and views on issues or behaviour that isreferred to it. A lawyer who would like to refer a matter to theCommittee should contact the Committee Convener, Paul Bar-nett, email: [email protected] phone: 04 498 4932Fax:04 471 0239. Paul will consult with the committee and a dis-tillation of the committee members’ views will be passed back tothe enquirer.
The committee also holds seminars where questions of ethicsare considered live. The next one is planned for the first half of2016, and the committee invites practitioners to suggest issuesthey would like to see discussed. Please send your suggestions [email protected] from where they will be sent on to theCommittee.
THE Trusts and EstatesCommittee recently held aninformal discussion on theimplementation and effects ofs 14 Wills Act 2007.
Section 14 differs from theold s 9 Wills Act 1837, whichhad strict formalities for theexecution of a valid will, andprovides instead that the HighCourt may make an order de-claring a document valid as awill if it is satisfied that it ex-presses the deceased’s testa-mentary intentions. Thecommittee members mostlyfelt that the amendment andits implementation was appro-priate. Any new legal processwill, however, present ques-tions.
The committee considered,for example, the position of alawyer instructed to obtain agrant of probate for a will, whothen hears of a later, “invalidwill” that the High Courtmight, if asked, declare valid.The committee was sure that alawyer has no duty to makeproactive enquiries where theyhave no knowledge of such adocument. However, somemembers were particularlyconcerned that it was unclearhow a lawyer’s overriding dutyto the court would operate ifthey knew a later “invalid will”existed or might well exist, butthe client’s instructions werestrictly to obtain probate of anearlier, fully-executed will.
The committee also consid-ered whether best practicewould now require alerting cli-ents to the new situation.Whilst the new rule is usedwhere a client has not under-stood that a formal-lookingdraft their lawyer has sentthem still requires execution,other clients may be aware ofthe pre-2007 rules as to the re-quirements of formality, andnot understand that if theychange their mind they need totake positive action to ensurethe draft is not subsequentlyadmitted to probate. Thismight happen where, for ex-ample, full instructions for afresh will are given by tele-phone after a family row andthe draft is received after rela-tions are patched up – and isput in a drawer, to be found bya beneficiary under it after thedeceased’s death (and perhapsafter probate of the earlierwill).
The meeting consideredways of forestalling such prob-lems, including following upclients who did not respond toletters containing draft docu-ments and eventually tellingthem that the draft would bewithdrawn. The actual statusof the draft after that would,however, be unclear. The com-mittee considered the balancebetween the advantages offlexibility in unexecuted docu-ments being potentially admis-sible to probate, as opposed tothe disadvantages of openingthe field to uncertainty and liti-gation.
The committee also consid-ered the High Court Ruleswhere a possibly invalid willexists. These provide at R 27.5a process by which an applica-tion for probate of an earlierfully-executed will may be de-ferred whilst an application foran order that a subsequent,“invalid”, will is valid instead is
considered under s 53 Admin-istration Act 1969. They do not,however, fully cover the situa-tion where the lawyer instruct-ed to apply for probate of theearlier will – who may indeedbe the executor of the will – hassome indication that theremay be a later, potentially val-id document – particularly asthe Rules envisage only laterdocuments which appoint ex-ecutors. It is not necessary fora document to appoint an ex-ecutor in order for it to be avalid will, and indeed the HighCourt has ordered recognitionof client-made documentssuch as suicide notes, whichare likely to consist only of dis-positions.
The discussion confirmed toall present that probate prac-tice is an exciting and poten-tially contentious field, andthat the committee is at its cut-ting edge.
By Caroline Sawyer for the Trusts and Estates Committee
THERE is the power ofintention, thoughts,words and actionswhich could thentranslate into belief, if abreeding ground exists.
These words seemclichés, like titles ofbest seller books. How-ever, it is universaltruth. Many wars havebeen waged on this premise.The likes of Hitler have led oth-ers to commit atrocities. Thelikes of Gandhi have led othersto the path of freedom.
Your thoughts have the pow-er to influence another’sthought process which can thenhave a snowball effect. Fashionis another good example; oneway of dressing/appearancegrabs the imagination of anoth-er. With appropriate position-ing, it very quickly becomes thenorm with an opening for a lu-crative business venture.
Culture and social normsadapt and change in this way.Some idea is introduced that hasthe power to influence. It bringsabout a change and a way of be-ing that moves from a spectrumof unacceptability to acceptabil-ity. In other words, ‘it catchesfire.’
Exploitation process
One such thought that is fasttaking hold is exploitation. Ex-amples of it have recently beenseen in the migrant community– one migrant exploiting anoth-er for financial gain.
In some cases, the exploitedmigrant is not only, but alsocomplicit, while in other cases,the exploited migrant has nochoice.
Sometimes the one that hasbeen exploited, in turn has thepotential of becoming the ex-ploiter once he or she gets thatability.
What is being taught is thatthis becomes a potential way ofengaging.
Breeding ground
In New Zealand the breedingground has been cultivated.How so?
It is because of our currentmodel of international studentrecruitment and immigrationpolicies. The model may achievethe educational outcome; thatis, to give educational qualifica-tions. It may even achieve theimmigration objective whichincludes economic and settle-ment outcomes but has the po-tential of a dubious socialoutcome.
Where there’s a will, there could be a way round it
What is meant bydubious social out-come is that some mi-grants pay for jobs,work without pay andprovide fictitious docu-mentation to gain NewZealand residence.
This is how competi-tive advantage isgained in some cases; it
is said that for some companies,such dubious methods are criti-cal for survival.
Related outcome
The stakeholders may insistthat the educational outcome isdistinct from the immigrationoutcome but in reality there is nodistinction. The two are interre-lated and go as a package. That iswhat is being bought. If the edu-cation pathway does not lead toa resident visa, then for some,the purpose for gaining thatqualification is in vain.
Education is not being seen asan end in itself. It is being viewedas a means to this end. Why? Thepolicy framework settings ena-ble the package to be sold in thismanner. It gives the the ability todangle a carrot of potential resi-dency.
Thus far we have been at-tempting to seek solutions byaddressing the symptoms. How-ever, there has been no real in-centive to tinker with the goldenegg in case it stops being golden.Considered holistically, we havebigger problems to deal withthan has been apparent, so tack-ling the golden egg is now be-coming imperative.
If we are really serious aboutaddressing this issue of migrantexploitation, which in my opin-ion has the potential of snow-balling into the mainstreamworkplace practices, then theroot of the problem has to be ad-dressed and addressed fast.
Otherwise New Zealand willbe seeing a very different workplace ethos and a developing un-derworld which may be out ofreach for police to monitor andshut down despite the penaltiesin place.
The power of thought is mani-fested because the breedingground exists.
Guidance towards achieving best ethicalstandards is concern of Branch committee
By Kamil Lakshman
Underbelly of migration
❑ This article was first publishedin Indian Newslink
Kamil Lakshman is Principal ofWellington based law firm IdesiLegal Limited. The opinions ex-pressed in her article above are herown and not that of Idesi LegalLimited or the New Zealand LawSociety, or its Wellington Branch.
Council Brief Advertising
DeadlineDecember Council
Brief – Tuesday24 November
COUNCIL BRIEF, NOVEMBER 20154 Annual Bar Dinner
Gavin Adlam, Ken Johnston and Frank Handy.
Robert Lithgow QC, Rowland Woods and Justice Simon France.
David Dunbar, Amanda Courtney, Cathy Rodgers, Nerissa Barber and Catherine Harris.
John Dean, Dan Parker and Greg Thomas.
James Gallagher, Rebecca Garden and Seamus Woods.
Kezia Tuohy, Judge Chris Tuohy and Donna Llewell.
Mary More, Elizabeth Bransgrove and Anna Kokje.
Kim Murray and Stephanie Winson.
Sally Parker and Stuart Dalzell.
Christina Billing, Britanny Peck and Kerrin Eckersley.
Peter Dengate Thrush, Peter McKnight andMatthew Sherwood King.
Mike Lennard and Amanda Courtney weresurprised to find they matched!
Frances Gush, Chris O’Connor and Steph Dyhrberg.
Paul Morten, Hayden Wilson and Paul Radich QC.
James Gallagher had been looking for anoccasion to wear his grandfather’s suit and
found the annual dinner was [email protected]
Council Brief Advertising
These pictures were taken at theWellington Bar Dinner held at theWellington Club early in October.
COUNCIL BRIEF, NOVEMBER 2015 5Annual Bar Dinner
Judge Ian Mill and Mark Wilton.
Bea Woodhouse and Matthew Brown.Emily Bruce and Jessie Nelson.
Karun Lakshman, Dan Parker, Kamil Lakshman and John Evans.
Sandra North and Charlotte Hollingsworth.
Bill Bevan and Jeremy Upson.
Chris O’Connor, Ken Ah Kuoi and Peter Knyvett.
Lili-Marina Stanley, Justice Winkelmann and Toli Sagaga.
Anna Bloomfield, Helen Tyree, Julia Robertson, Emma Manohar and Lisa Bazalo.
Tara Hauraki and Sarah Gwynn.
Council Brief Advertising
Property taxation legislationWellington : New Zealand LawSociety 2015 KM336.36.L1 NEW
Tax conference, September 2015Wellington : New Zealand LawSociety 2015 KM335.L1 NEW
The Native Land Court. Volume 2,1888-1909 : a historical study,cases and commentary.Wellington : Thomson Reuters2015 KM208.433.L1 BOA
The New Zealand Bill of Rights Act :a commentary Wellington :LexisNexis NZ Ltd 2nd ed 2015KM201.2.L1 BUT Closed Reserve
The law of real property, 2012KN60.A1 MEG
Youth advocates conference July2015 Wellington : New ZealandLaw Society 2015 KN176.L1 NEW
Retired judge Paul von Dadelszen QSO, Janine Bonifant, Simon Martin, Jacinda Rennie and Charlotte von Dadelszen.
Life on the bench
❑ From page 2
New books
Sir Bruce Robertson, Gary Turkington and Felix Geiringer.
Kathryn Beck is new NZLS PresidentKATHRYN BECK fromAuckland has beenconfirmed as the new NZLaw Society President, totake effect at the NZLScouncil meeting in March2016.
Kathryn is a partner atSBM Legal, a boutique em-ployment law firm based in Auck-land and working throughout NewZealand. She is a member of theNZLS Auckland Branch Counciland the Vice President for Aucklandof the New Zealand Law Society.
She has a BCom (Labour Rela-tions) and LLB from the Universityof Auckland and more than 20 yearsof practical legal experience.
Kathryn practises predominate-ly in employment law with a diverseclient base. She is experienced inalternative dispute resolution andregularly acts as mediator and facil-
itator as well as conduct-ing independent investi-gations.
Her practice has gener-ally had a litigation focus.She previously worked atHaigh Lyon for over 11years and led the litigationteam there.
She has been active within thelegal community, and is a memberof the Board of the Auckland Com-munity Law Centre and has beenon the ADLS Council. She wasConvener of the NZLS Employ-ment Law Committee for a timeand has been a submitter for theLaw Society to Select Committeeson legislative change.
Among many issues, Kathrynsees three areas of likely future fo-cus: access to justice, promotionand retention of women in the le-gal profession and practising well.
Community Law CentreCOUNCIL BRIEF, NOVEMBER 20156
COUNCIL BRIEFThe monthly newspaper of theWellington Branch NZ Law Society
Advertising Rates: casual or contract rates on application. Telephone Robin
Reynolds, Reynolds Advertising, Kapiti Coast (04) 902 5544, e-mail:
[email protected]. Rates quoted exclude GST.
Advertising Deadline: for the December 2015 issue is Wdnesday 25 November, 2015.
Circulation: 3150 copies every month except January. Goes to all barristers and
solicitors in the Wellington, Marlborough, Wairarapa, and Manawatu areas. Also
goes to many New Zealand law firms, to law societies, universities, judicial officers,
and others involved in the administration of justice.
Will Notices: $50.00 GST inclusive for each insertion.
Subscriptions: Annual subscription $60.00 incl. GST. Extra copies $5.00 each.
Subscription orders and inquiries to: The Branch Manager, New Zealand Law Society
Wellington Branch, P.O. Box 494, Wellington.
Editor: Chris Ryan, telephone (06) 378 7431 or 027 255 4027
E-mail: [email protected]
Opinions expressed do not necessarily reflect those of the NZ Law Society Wellington Branch or the Editor.
Council Brief is published for the NZ Law Society Wellington Branch
by Chris Ryan, and printed by Beacon Print, Hawke’s Bay.
ISSN 2382-2333
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Skype Face-to-Face counselling applies throughout New Zealand.
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COMMUNITY Law Wellingtonand Hutt Valley (CLWHV)maintains relationships witha variety of organisationsto provide services andprogrammes throughout theWellington region. We believethat by doing this we can shareexpertise and draw on eachother’s strengths to better meetthe complex needs of ourcommunity.
One of our latest initiatives ispartnering with PresbyterianSupport Central (Family Works)to provide the ParentingThrough Separation (PTS) pro-gramme in Wellington, Kapiti,Hutt Valley and Wairarapa.
CLWHV has built up a signifi-cant amount of experience de-livering legal education and isoften a first port of call for familylegal issues. Community Law-yers and education workers co-facilitate with social workers
from Family Works to deliverthis free four-hour programme,over one or two days, to parentswho are at various stages of end-ing their relationship and wantto learn how best to deal with thecare of their children during thisdifficult time.
PTS aims to educate parentson the effects of separation onchildren and to encourage par-ents to put the needs of theirchildren first. PTS also has anemphasis on minimising and re-ducing children’s exposure toparental conflict and on givingparents tools to reach post-separation care arrangementsthat are in the children’s best in-terests and without recourse tothe Family Court.
Research has shown that chil-dren whose parents separate aremore likely to have negative out-comes, but parents have theability to minimise the impact of
separation on their children.1
PTS has a focus on practical ad-vice to help separating parentsand their children deal with sep-aration.
Participants are encouragedto see their separation from theirchildren’s perspective and comeup with practical ways to keeptheir children away from conflictand to help them make a stabletransition to their new situation.PTS offers participants the op-portunity to learn valuable infor-mation by getting involved indiscussions, contributing theirown experiences, collaboratingon activities and watching clipsof children talking about what itwas like for them when their par-ents separated.
PTS also aims to enablegrandparents and the widerwhanau to get involved to sup-port the children involved and tohelp parents minimise conflict.As a rule, ex-partners to the same
relationship do not attend thesame PTS course.
Parents attend the course atdifferent stages of their journeythrough separation, from beingseparated for one week to beingseparated for ten plus years. Theparents are also at hugely variedstages in the legal process; somehave only a verbal parentingagreement, others are going onto Family Dispute Resolutionand some have protection ordersagainst them.
It is often reassuring for par-ents to realise that they are notthe only one going through sepa-ration. Further, when someonerecovering from addiction sitsbeside a participant whose ex-partner has addiction issues,
there is the opportunity for aconnection where both partici-pants are given a window intowhat it could be like for their ex-partner.
If you need to refer a client orfriend to this programme thenplease check out the FamilyWorks website with details ofour programme:www.psc.org.nz/family-works/s e r v i c e s - 2 / p a r e n t i n g /parenting-through-separation .
Footnotes1 www.justice.govt.nz/publications/p u b l i c a t i o n s - a r c h i v e d / 2 0 0 9 /evaluation-of-the-parenting-through-separation-programme
A DRAFT bill intended to repeal a range of redundant laws has beenreleased for comment.
The Statutes Repeal Bill will remove 120 pieces of superfluouslegislation, and parts of eight other acts. It is being consulted onbefore it is introduced to Parliament.
Regulatory reform minister Steven Joyce said feedback was soughtfrom any party who thinks that they may be affected by the repeal ofany legislation proposed for inclusion in the Bill, and from the legalcommunity.
Earlier this year the Government accepted a Productivity Commis-sion recommendation to increase the use of exposure drafts to im-prove New Zealand’s regulatory system.
The Statutes Repeal Bill currently proposes to repeal or partiallyrepeal 120 Acts. It will reduce the total number of public Acts in forceby 113, and the number of private Acts by seven.
The draft bill and information on how to make a submission isavailable at http://www.pco.parliament.govt.nz/consultation-srb
Submissions close on 4 December 2015.
Proposed repeal of redundant laws
NZ Law Society Library, WellingtonPhone: 04 473 6202
Fax: 04 471 2568
email: [email protected]
Branch Manager: Catherine Harris
Branch Administrator: Geeta Raman
Librarian: Robin Anderson
Research Librarian: Nicola Stedman
Technical Services Librarian: Liz Oliver
Library Assistant/LINX: Julie Kirkland
PO Box 494, WellingtonPhone: 04 472 7837
Email: [email protected]
Website: www.lawsociety.org.nz
NZ Law Society – Wellington Branch
THE scheme to assist lawgraduates into work is stillbeing operated by theWellington Branch.
Law graduates seeking workleave their CVs at the Society.These are available to potentialemployers needing staff whocan refer to the CVs and chooseappropriate graduates.
The work offered need notbe permanent. Any work in alaw office will give graduatesexperience that may be helpfulnext time they make job appli-cations.
Law graduateCV scheme
By Ione Gill and Geoffrey Roberts
Parenting through separation – Community Law and Family Works
Council Brief Advertising
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DeadlineDecember Council
Brief – Tuesday24 November
Wellington lawyers are very keento attend events presented by the
Wellington Branch office.
For several recent events demandhas outstripped the number of
places and long waiting lists haveresulted.
The answer is to please bookearly or you risk being
disappointed.
Book early for LawSociety events!
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COUNCIL BRIEF, NOVEMBER 2015 7Contributory mortgages
DOWN1. Role man has created as a social
worker (7)2. Tract of the brave New World (7)3. Odd trio holds a proportion (5)4. A particular deference (7)5. Maybe the present state of a nervous
person (5)6. To come up before her is not the same
(5)9. Centaur in doubtful form (9)14. Ruffian out to provide popular
entertainment (3,4)15. Slackened and became loose in a rush
(7)16. Grant permission to break silence (7)19. Did little after I’d made the running
(5)20. Give birth to a plot (5)21. Amphibious cart? (5)
ACROSS7. A line used in malaria treatment (6)8. Make a choice in this election (6)10. In my view, a vegetable with very
good stuffing (7)11. A step in the making of dough (5)12. Give out when it’s time to come back
(4)13. An unlicensed receiver (5)17. Leaves with all debts settled (5)18. Fairy required, some experience
necessary (4)22. If all plants were this, there would be
no great variety (5)23. Reputation for enjoying poor health?
(3-4)24. He knew where to draw the line (6)25. High jinks with a saucy flavour? (6)
DOWN1. Opposite (7)2. Nominate (7)3. Exhaust (5)4. Fervent (7)5. Nip (5)6. Obscurity (5)9. Guiltlessness (9)14. Squirm (7)15. Sailor (7)16. Small truck (7)19. Narrative (5)20. Foremost (5)21. Odd (5)
ACROSS7. Skilled (6)8. Acme (6)10. Feeling (7)11. Clear (5)12. Rational (4)13. Sham (5)17. Avidity (5)18. Couple (4)22. Object (5)23. Decisive (7)24. Outcome (6)25. Venerate (6)
Cryptic Clues
Quick Clues
PRACTISING WELL
Chaplain, Julia Coleman, 027 285 9115You can use this diagram for either the Quick or Cryptic Clues, but the answers
in each case are different. This month’s solutions are on page 2.
COUNCIL BRIEF CROSSWORD
-
MADESIGNm
© Mark Gobbi 2015
1 Unravel the following word:
2 If you get to move first, wouldyou rather be white or black?Why?
I B M R
O T U A
S U C N
CONSUMER advocate andformer US presidentialcandidate Ralph Nader hasopened an ‘American Museumof Tort Law’ in Winsted,Connecticut, reports NPR.
The museum is filled withitems like defective toys and un-safe machines tied together un-der a unifying theme: tort law.Many of the items on displaywere exhibits used in courtcases.
Nader came to prominencewith the publication of his 1965book Unsafe at Any Speed, a cri-tique of the safety record ofAmerican car manufactuurers,particularly the first-generationChevrolet Corvair.
A bright-red Corvair is themuseum’s centrepiece. Nader’sbook helped establish car safetlyfeatures such as seat belts andairbags.
Torts lawmuseum
LAWYERS offering contributorymortgages under the currentSecurities Act (ContributoryMortgage – Solicitors andIncorporated Law Firms)Exemption Notice 2013 will besubject to new requirementsrolling in on 30 September 2016when the lawyer ExemptionNotice expires. All affected lawfirms should by now beregistered as a Financial ServiceProvider and be a member of anapproved Financial DisputeResolution Scheme in order tobe Securities Act compliant.
Upon expiry of the lawyer Ex-emption Notice, the NZLS,which provides lawyers with aseparate compliance regime,will cease to regulate lawyers op-erating contributory mortgagelending services and the Finan-cial Markets Authority (FMA)will take over the supervision ofall contributory mortgage pro-viders under its new FinancialMarket Conduct Act 2013(FMCA) regime.
Transitional provisions
Under clauses 7 and 53 ofSchedule 4 FMCA, new offersand existing contributory mort-gage investments can, beforethe Exemption Notice expires on30 September 2016, continue tobe governed by the former NZLSregime – unless the law firmelects to come under the newFMCA regime earlier. Howeverfrom 1 October 2016 to 30 No-vember 2016, all contributorymortgages must be offered andmanaged under the SecuritiesAct (Contributory Mortgage)Regulations 1988 (SA Regula-tions) (which apply to brokerswho are not lawyers), unless theinvestments are already beingmanaged under the new FMCA.
From 1 October 2016, regard-less of whether lending servicesare offered under the Securities
Act Regulations or under thenew FMCA regime, the FMA willsupervise all contributory mort-gage providers.
The new FMCA regime
Finally, from 1 December2016, all new offers of contribu-tory mortgages must be compli-ant with the new FMCA regime.New FMCA ongoing obligationssuch as disclosure and govern-ance requirements need to becomplied with.
Note however notwithstand-ing the commencement of thenew FMCA regime, existing con-tributory mortgages issued be-fore 1 December 2016 cancontinue to be managed underthe SA Regulations until they arecancelled, redeemed, forfeitedor the obligations under themare discharged.
Peer-to-Peer Lending (P2P)and Managed InvestmentSchemes (MIS)
Under the FMCA, there are nospecific provisions relating tocontributory mortgages and alaw firm offering contributorymortgage services will be treatedas a financial broker, required toproffer financial market servicesunder an FMCA category. Theywill likely be seen to be operatingeither under the FMCA’s “Man-aged Investment Schemes”(MIS) category or the Peer-to-Peer Lending (P2P Lending) cat-egory.
Briefly, MIS are schemeswhereby the MIS Manager poolsmoney contributed to thescheme by investors as consider-ation to acquire interests (finan-cial benefits) produced underthe scheme. “Regulated offers”under MIS will require disclo-sure and governance as pre-scribed for MIS and a licensedfund manager as well as an inde-pendent licensed supervisor.
P2P Lending involves the facili-tator acting as an intermediarybetween borrowers and lenders.Under this scheme, a licence isrequired if you want to matchborrowers wishing to offer debtsecurities without supplying aproduct disclosure statement(PDS) with lenders wishing toloan money. Borrowers can thenrely on an FMCA exemptionwhich does not mandate a PDS.To obtain a P2P Lending licence,minimum standards need to bemet. Once granted, there are nu-merous ongoing obligationssuch as complying with fair deal-ing policies, having a writtenagreement with clients, provid-ing disclosure statements andmonitoring ongoing compli-ance. Further, the applicant willhave to demonstrate that it isable to meet the standard condi-tions that are attached to the P2Plicence. Similar obligations ap-ply to licensed MIS managers.
Options going forward
Post 30 September 2016, lawfirms can:• Operate under the SA Regula-
tions;• Re-offer contributory mort-
gages under the new FMCAregime; or
• Cease contributory mortgagelending operations completely.In considering the way for-
ward, note that if a law firmchooses to manage existing con-tributory mortgages under the SARegulations instead of opting tooperate straight under the newFMCA, then it would have tocomply with two separate com-pliance regimes come 1 Decem-ber 2016 when all new financialservices are required to be of-fered under the FMCA. Further,until the firm ceased to operateunder the SA Regulations, the lawfirm would need to register as acontributory mortgage broker
and comply with the obligationsimposed by the SA Regulations.
Law firms that do not wish towind down their lawyers nomi-nee companies and instead in-tend to operate under the newFMCA regime should be vigilantabout the amount of preparationand time involved in transition-ing and organising the firm’sprocedures to ensure compli-ance with the new regime andadherence to the professional fi-duciary duty and duty of care tothe lender.
The NZLS may provide fur-ther specific guidance to lawfirms once more detailed re-quirements about ongoing tran-sitional arrangements arereceived from the FMA. In themeantime any enquiries or re-quests for updates should be di-rected to the FMA atwww.fma.govt.nz.
New requirements for law firms providingcontributory mortgage lending services
By Beatrix Chin
Council BriefDecember issue
deadline 24 November❑ This article was first published in
Canterbury Tales
Council Brief [email protected]
Informal drinks atWellesley Boutique Hotel
20 November & 18 December
Landmarks: Entick v Carrington—250 years onIt’s ��� years since John Entick won his case in trespass against four of the King’s messengers, despatched by the Secretary of State under a warrant to seize “seditious papers”. Join us to hear a panel discuss the significance—then and now—of this famous case and the principles of the rule of law it stands for.
Professor Richard Boast QC, Victoria University of Wellington Anthea Williams, Ministry for Primary Industries David Goddard QC, Thorndon Chambers Douglas Ewen, Brandon Street Chambers
When: �.��–�pm, Thursday � November ���� Where: Lecture Theatre �, Government Buildings, �� Lambton Quay, Wellington RSVP: http://nzcpl-entick.eventbrite.com
This event is part of the New Zealand Centre for Public Law’s Landmarks series that commemorates a number of significant legal anniversaries: Magna Carta (��� years) New Zealand Bill of Rights Act (�� years); the Treaty of Waitangi Act ���� (�� years) and Entick v Carrington (��� years).
Capital thinking. Globally minded.
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Council Brief
COUNCIL BRIEF, NOVEMBER 20158 NoticesGawith Burridge
John William (Jock) Kershawadvises that he has retired as a partner from the practice of
Gawith Burridge as at 31 October 2015.
He is continuing with the firm as a consultant from that date.
www.gawith.co.nz
Donations to the Solicitors Benevolent Fund can be made through:
• “Give a Little” http://www.givealittle.co.nz/org/Solicitors,which will be automatically receipted, or
• by Direct debit: Bank of New Zealand: 02-0506-0101108-097
All donations go directly to the capital reserve. The Solicitors’Benevolent Fund Trust is registered as a charitable trust(number CC48709) and has tax deductible status.
If a receipt is required when making a direct debit, pleaseemail [email protected] with your name, theamount deposited and a contact number to ensure a receipt isissued and sent to the correct place.
The Solicitors’ BenevolentFund – ways to donate
Consultation beginson Contract and
Commercial Law Bill
Wellington lawyers are very keento attend events presented by the
Wellington Branch office.
For several recent events demandhas outstripped the number of
places and long waiting lists haveresulted.
The answer is to please bookearly or you risk being
disappointed.
Book early for LawSociety events!
http://bookwhen.com/wellington-branch
The Young Lawyers Committee and Government Legal Networkheld a networking event last week to reflect on how practising wellsupports the achievement of professional goals. Speakers were SaarCohen-Ronen (Crown Counsel Public Prosecutions Unit) and UnaJagose (Deputy Solicitor-General and Acting Director GCSB).
Practising well supporting professional goals
The NZLS Wellington Branch Immigration and Refugee Committee Dinner with the Minister of Immigration at theWellington Club has become an annual event. The committee has become familiar with Minister Woodhouse as he hasattended annual dinners on three occasions during his tenure as Minister of Immigration. The President of the WellingtonBranch Council is normally present. This year we had David Dunbar, the Vice President to grace the occasion.
These dinners are very useful, both for the Minister and the Committee members as it provides a relaxed and enjoyableforum to delve deeper into the emerging and pertinent issues of the day in the New Zealand immigration and refugee field.
Members of the Wellington Branch Immigration Committee with Minister Hon Michael Woodhouse recently: Richard Small,Fraser Richards, Mahinarangi Tangaere, David Dunbar, the Minister, Kar-Yen Pardington, Kamil Lakshman (Convenor),
Rowland Woods, John Petris and Rhyn Visser.
The annual young professionals ball, organised by theYoung Lawyers Committee, was held recently at CityGallery. The ‘Night at the Gallery’ was hugely successfuland over 250 young professionals enjoyed the evening.
THE Government is seekingsubmissions on an exposure draftof the Contract and CommercialLaw Bill.
Eleven contract and commer-cial statutes, some dating back to1908, have been revised and con-solidated into a single Bill withoutchanging the substantive effect ofthe law.
Attorney-General ChristopherFinlayson QC said this was the firstrevision Bill of the government’sstatute revision programme, pre-sented to the House of Represent-atives in December last year,aimed at producing an accessible,clear and up-to-date statute bookfor New Zealand.
The Bill makes some very mi-nor amendments to the law, aspermitted under the statutory re-vision powers, which are clearlyidentified for comment. The expo-sure draft of the Bill and informa-tion about how to make asubmission are available atwww.pco.parliament.govt.nz/consultation-cclb.
Submissions on the draft Billclose on 4 December 2015 andfeedback may be given through:www.pco.parliament.govt.nz/consultation-srb
Saar Cohen-Ronen speaks to the group.
Kathryn Nicholas and Kylee Maree Haw.Emma von Veh, Cassandra Kenworthy and Rosa
Reynolds.
Georgina Dickson, Ved Prasad,Genevieve Rainey and Rebecca Garden.
Ved Prasad, James Gallagher,Nathan Hollis and Amada Wilson.
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