Council Brief - November 2013

COUNCIL BRIEF
The monthly newspaper of the
Wellington Branch NZ Law Society
NOVEMBER 2013
ISSUE 430
❑ President’s Column
Eventful month as CPD under way
By Mark Wilton, President, Wellington Branch, NZLS
THIS month the Branch hosted a delegation from the CPC
Shanghai Municipality Discip-linary Committee and the
Municipal Super-vision Bureau, the body responsible for
monitor-ing official corruption in Shanghai, China.
Shanghai has been mandated by the Chinese central
government to pilot a range of reforms to improve transparency
and accountability, whilst reducing corruption. The pilot project
involves the introduction of new corruption-prevention and
corruption-prosecution regimes, legal and institutional, at all levels. The Shanghai
Disciplinary Commission is critical to implementing such reform. The meeting
facilitated by the Wellington Branch allowed the participants to share their
respective positions setting out the legal and institutional machinery required (or
in place) to prevent corruption in government.
The meeting included representatives from the New Zealand Law Society, the
New Zealand Law Commission and Independent Police Conduct Authority and
provided the visiting delegation with the opportunity discuss the roles and
functions of these New Zealand bodies with reference and comparison to their
pilot reforms. (See pictures page 5)
CPD under way
This month also saw the start of the NZLS Continuing Professional
Development Scheme. Such is the importance of the scheme, the national office of
the NZLS arranged a number of seminars around the country to explain and
discuss the implementation of the scheme with the profession.
I had the privilege of attending a number of these including a visit to
Palmerston North to meet with and enjoy the hospitality of the Manawatu Branch
President Chris Robertson and his members at a very well attended seminar. It was
also pleasing to see so many Wellington Branch members (over 300 registrations)
at the seminar at Te Papa.
It is time for us all as members of the profession to step up and embrace the
CPD scheme that will benefit not only our practices but individually allow us to
develop professionally. The Wellington Branch continues to champion the scheme
and wishes to assist any member requiring help complying with the scheme. Our
branch committees are committed to organising CPD events that will qualify as
‘runs on the board’ for your compulsory 10 CPD hours per year. Our branch can
also provide guidance for groups proposing to hold a CPD event to ensure it will
comply with the requirements for eligible activities.
Intervention Rule
This month I again attended the NZLS Council meeting as your representative.
Much of the meeting focused on discussing the intervention rule, specifically
around redrafting the rule with wider exemptions particularly with the inclusion of
Family Court (including property related) matters. The NZLS Council confirmed
support for the wider exemption. Further work and discussion with the NZ Bar
Association will follow relating to the ambit and drafting of the rule.
Greg King
It was with sadness that we read the publicity around the Coroner’s report on
the circumstances of Greg King’s death. The practice of law can be a stressful and
demanding, the pressures of meeting court and commercial deadlines everpresent. We are aware that a significant number of lawyers have suffered from
stress and depression. Over the past few years the Society has endeavoured to
build a platform of resources and support mechanisms to provide a starting point
for members of our profession who come under pressure. I would encourage you
all to visit the ‘practising well’ pages on the NZLS website and encourage
members to seek help when they need it. The circumstances around Greg’s tragic
death confirm the need to continue to develop ways of identifying and assisting
lawyers who would benefit from help and support.
From left to right: Hugh McCaffrey, Edward Greig, Justice Glazebrook, Justice William Young,
Justice Arnold, Sean Conway, Matt Dodd and Elizabeth Chan.
NZ Bar Association/Young Lawyers’
Committee mooting competition
By Elizabeth Chan*
IN what circumstances is it reasonable to expect
naked photographs of yourself uploaded onto
Facebook to remain private? This was the question
grappled with by the finalists of the inaugural New
Zealand Bar Association (NZBA)/Young Lawyers’
Committee (YLC) Mooting Competition 2013. The
moot final took place on Thursday 24 October at the
Old High Court before a panel of three Supreme
Court Judges: William Young, Glazebrook and
Arnold JJ.
The finalists were Sean Conway and Matt Dodd,
judges’ clerks at the High Court, as counsel for the
appellant; and Edward Greig and Hugh McCaffrey,
solicitors at Bell Gully, as counsel for the respondent.
It was a close and exciting match, with the
respondents being declared the champions of the
mooting competition at a prizegiving ceremony
hosted at Thorndon Chambers. When announcing the
result, William Young J praised the high standard of
the advocacy, emphasising that he was “heartened”
for the future of the legal profession.
The moot final and prizegiving ceremony was the
culmination of a two-month, three-round competition
that began in early September, after the participants
received the moot problem and attended a training
session run by Karen Clark QC and Matthew Smith
of Thorndon Chambers. Twenty four participants
took part, as did 21 judges who adjudicated the
moots, six barrister/lawyer mentors who coached the
semi-finalist and finalist teams, five registrars and
many others who provided advice on the design of
the competition.
At the prizegiving YLC convenor Jamie Grant,
said the YLC had decided to organise a mooting
competition to give young lawyers the opportunity to
practise the craft of advocacy and to appear before
real judges. He thanked the many organisations and
individuals who had supported the competition,
including: the NZBA as the sponsor of the
competition, Thorndon Chambers for hosting the
prizegiving ceremony, the Wellington High Court
and the Supreme Court for providing court rooms for
the moots, the Wellington High Court library for
lending the participants robes, Bell Gully for assisting
with developing competition resources, the Institute
of Professional Legal Studies for offering its premises
for use by the participants, and Chris Ryan from
Council Brief as the official photographer for the
moot final and prizegiving ceremony.
At the prizegiving, Tim Castle spoke on behalf of
the NZBA, and David Goddard QC spoke on behalf
of Thorndon Chambers.
As the co-ordinator of the mooting competition, I
am thrilled with its success. It has brought together
many different people in the legal profession,
including young lawyers, barristers, judges and other
lawyers. I am grateful to my 10-person organising
committee.
The YLC would love to see the mooting
competition become a regular fixture of the
Wellington young lawyers’ calendar and to
encourage the expansion of the competition to other
regions in New Zealand. The YLC is especially
grateful to the NZBA for its encouragement and
support.
❑ The moot judgment, authored by Tim Cochrane, is available
online from the “NZ Bar Association/YLC Mooting
Competition Final 2013” page at www.younglawyers.co.nz .
* Elizabeth Chan was the co-ordinator of the NZBA/YLC
Mooting Competition 2013. She also works as a judge’s clerk
at the Supreme Court of New Zealand.
More pictures on page 5
Electronic security screening for Porirua District Court
By Mark Wilton, President, Wellington Branch, NZLS
OUR Branch has been notified by the Ministry of
Justice that the permanent electronic security
screening system, first implemented in Auckland
and Manukau District Courts in September 2010
and subsequently at Wellington District Court in
March this year, will commence at the Porirua
District Court on 4 November 2013.
We are assured that the security protocols
being introduced in Porirua are similar to those
operating in other centres including the system
introduced into Wellington at the beginning of
this year. The screening is designed to reduce the
chance of weapons being brought into court
buildings.
People entering Court will walk through a
metal detector which will be used to detect
prohibited items. The machine will be situated at
the public entrance of the Court. The screening
will not involve use of an x-ray machine and,
accordingly, if there is an indication shown by
the metal detector then a hand-held detector
(wand) search will be conducted to identify the
suspect item. This may also involve a request to
open baggage for further inspection.
By now members should have seen notice of
this in e-brief with a link to the letter we have
received from the Ministry which includes a list
of frequently asked questions.
We are advised that security screening will
also eventually be introduced into the Hutt
Valley District Court.
If you would like to give any feedback
regarding the implementation of the screening
protocols in Porirua or any comment on how the
screening process has been operating in
the Wellington District Court since March,
please feel free to email me at
wellington.branch.president@lawsociety.org.nz.
Where are women QCs?
3
Lawyers without borders
3
Lawyer to walk NZ trail
8
Page 2 – COUNCIL BRIEF, NOVEMBER 2013
Case summaries based on those written for LINX database. Copies of the
judgments are available from the NZLS High Court Library:
wellington@nzlslibrary.org.nz 64 4 473-6202 o 0800 FORLAW– 0800 36 75 29
Wellington Branch Diary November
Thursday 7 November
Gifting and residential Care Subsidies – potential liability.
NZLS CLE webinar. Noon-1pm.
Human Rights Committee
Thurs-Fri-Sat 7-9 November
Stepping Up Foundation for Practice on Own Account.
NZLS CLE Training Programme. NZICA Convention Centre.
Tuesday-Wednesday 12-13 November
The Lawyer as Negotiator, NZLS CLE Workshop. Terrace Convention Centre.
Thursday 14 November
Courts and Tribunals Committee
Family Law Committee
Public Law Committee
Monday 18 November
Mediating Dangerously – learning the lessons conflict can teach.
NZLS CLE Workshop, NZICA Convention Centre.
Monday-Tuesday 18-19 November
Reading Accounts and Balance Sheets, NZLS CLE Workshop,
Terrace Convention Centre.
Wednesday 20 November
The Role of the Trustee, NZLS CLE Seminar, NZICA. 9.30-11.30am.
Thursday-Friday 21-22 November
Family Law Conference, Auckland.
Tuesday 26 November
The Retirement Village Option – advising your clients on benefits and pitfalls,
NZLS CLE Webinar. 11.00am-12.30pm.
Wednesday 27 November
Wellington Branch Council meets
Legal Assistance Committee
Friday 29 November
Women in Law Committee
that only legal question meeting
requirements for second appeal
under s13 Supreme Court Act 2003
(the Act) was whether there was
seriousness threshold to be met
before s152(2)(a) power might be
exercised by Standards Committee
– policy of Act did not favour
appeals on preliminary points which
could be raised at conclusion of
process – appeal against preliminary
decision by Standards Committees
that complaints should be
determined by Tribunal analogous
to appeal against interlocutory order
– s13(4) highly relevant to whether
it was in interests of justice to permit
prehearing appeal of such a point –
relevance of other processes of
review – no settled basis of fact on
which Court could decide whether
the way the Committees proceeded
and laid charges was lawful and fair
– no prejudice to applicant in
requiring him to go through
disciplinary process before seeking
to raise his objections to the
respondents process on an
application for leave to appeal in
this Court – HELD: not in interests
Orlov v New Zealand Law Society
(NZLS)
Supreme Court, [2013] NZSC 94,
SC 68-2013, 8 October 2013,
McGrath, William Young &
Arnold JJ
CIVIL
PROCEDURE
–
unsuccessful application for leave
to appeal – CA judgment dismissed
appeal in judicial review
proceedings challenging procedural decisions of respondent
Standards Committees of the New
Zealand Law Society not to deal
with complaints but to lay charges
before the New Zealand Lawyers
and Conveyancers Disciplinary
Tribunal (Tribunal) – CA allowed
cross appeal against HC finding
that certain matters did not reach
standard of sufficient seriousness to
warrant reference to and
determination by Tribunal – CA
inter alia rejected view as to
implicit threshold of seriousness to
be met for referral of matters to
Tribunal as unwarranted gloss of
s152(2)(a)
Lawyers
and
Conveyancers Act 2006 – leave
application determined on basis
of justice to hear and determine
appeal prior to Tribunal’s decision
on the charges and determination by
lowers courts of any appeals against
that decision – application for leave
to appeal dismissed.
COUNCIL BRIEF CROSSWORD
TWO essay prizes have been
awarded by the Wellington
Women Lawyers Association
and Victoria University Law
Faculty to celebrate Harriette
Vine, the first woman law
graduate from Victoria
University.
The winners are: Monique
Van Alphen Fyfe and Amelia
Guy-Meakin. Each received a
$750 prize from WWLA.
In further celebration a
special issue of the Victoria
University of Wellington Law
Revue is planned for early
2014.
PRACTISING WELL
You 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.
Chaplain, Julia Coleman, 027 285 9115
Cryptic Clues
ACROSS
6. Unusually angered (7)
7. Agree to advance (3,2)
9. Such remarks may still be pointed! (5)
10. Decorations I prohibit in small
thoroughfares (7)
12. For many road-users, they provide a
stern outlook (4,7)
14. Patient attendants who treat only
employees? (5,6)
18. He won’t make certain advances (7)
19. It may be sung in a lovely rich
baritone voice (5)
21. People count on them to send them to
sleep! (5)
22. Exercise done by a prisoner (7)
Harriette Vine
essay prizes
DOWN
1. Single unfronted fireplace (5)
2. Red Indian who may keep watch for
you (6)
3. Catch a number up (3)
4. Free beer held up and put down again
(6)
5. Common knowledge (3-4)
8. I arrive upset, for a sunny holiday? (7)
11. A good one will be true to type (7)
13. Wasting a prize (7)
15. Possibly gifted young scholars may be
told not to! (6)
16. Rarely seen part of the French
President’s residence (6)
17. Not much to steal (5)
20. Don’t go without a pen (3)
Quick Clues
ACROSS
6. Nominate (7)
7. Lesser (5)
9. Afterwards (5)
10. Pad (7)
12. Booby prize (6,5)
14. Go separate ways
(4,7)
18. Horse-soldiers (7)
19. Accumulate (5)
21. Performed (5)
22. Regulated (7)
DOWN
1. Utter (5)
2. Spanish dance (6)
3. Finish (3)
4. Chessman (6)
5. A wise man (7)
8. Vegetables (7)
11. Postpone (7)
13. Poise (7)
15. Journey (6)
16. Figure (6)
17. Awry (5)
20. Skill (3)
Deadline December Council Brief – Monday 25 November
Conferences
November 15 2013 – Mental Health Law
Conference 2013, Claro and ANZ
Association of Psychiatry Psychology and
Law (ANZAPPL), Wellington.
No1anzappl@gmail.com
November 21-22 2013 – Family Law Conference,
Auckland. www.lawyerseducation.co.nz
November 22 2013 – 2nd NZ Labour Law
Society Conference, The Employment Forum
of the NZ Work Research Institute, AUT,
Auckland. www.workresearch.aut.ac.nz
November 25-27 2013 – Australia New
Zealand Law and History Conference:
‘People, Power and Place’, University of
Otago, Dunedin. www.otago.ac.nz/law/
conferences
December 5 2013 – Key Issues in
International Arbitration in the Asia-Pacific
region, Sydney. www.ibanet.org
December 6 2013 – IBA Asia Pacific
Arbitration Group Inaugural meeting,
Sydney. www.ibanet.org
February 14-16 2014 – Earth Law
Conference on Sustainability, Earth Law NZ
& German Australia Pacific lawyers
Association, VUW Law Faculty, Wellington.
anna-burnett@vuw.ac.nz
February 19-21 2014 – 5th International
Gambling Conference, AUT City Campus,
Auckland. Problem Gambling Foundation of NZ.
www.internationalgamblingconference.com
March 11-12 2014 – IER Industrial and
Employment Relations Summit, Crowne
Plaza, Auckland. www.conferenz.co.nz
April 8-9 2014 – ANU/NJCA Conference on
Sentencing, Canberra. http://njca.com.au
April 14 2014 – Resource Management Law
Association of NZ, Wind Energy Conference,
Wellington. www.rmla.org.nz
April 21-24 2014 – World Bar Conference
2014, Auckland. www.nzbar.org.nz
May 8-9 2014 – 6th World Women Lawyers’
Conference, Paris. www.iba.org
June 20 2014 – IBA Asia Law Firm
Management Conference, Singapore.
www.ibanet.org
June 24-27 2014 – World Indigenous
Lawyers’
Conference,
Brisbane.
www.indigenouslawyersqld.com
July 3-5 2014 – 5th LAWASIA Family Law
& Children’s Rights Conference, Sapporo,
Japan. http://lawasia.asn.au
Candidate Information Meeting for March 2014 admission
Presented by the Wellington Branch NZ Law Society and the Wellington High Court Registry
Council Brief
Advertising
1-2pm Monday 11 November 2013, Level 8, NZLS Building
26 Waring Taylor Street, Wellington CBD
Please RSVP https://bookwhen.com/wellington-branch
adman@paradise.net.nz
Please encourage anyone you know who will be seeking admission in March next year to attend.
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COUNCIL BRIEF, NOVEMBER 2013 – Page 3
WOMEN QCS
Women Queen’s Counsel: where are they?
By Rachael Dewar
Wellington Branch Women in Law Committee
RECENTLY I was delighted to
congratulate the latest additions
from the Wellington Bar
appointed as QCs.
Those
appointments were richly
deserved and the Inner Bar is
strengthened as a result.
However, I was surprised that
there were no women QCs among
them from Wellington. Several
women QCs were appointed in
Auckland in this round and this led
our committee to ask why no
Wellington women were included.
Karen Feint of the Wellington
Branch Women in Law committee
made a request under the Official
Information Act 1982 for details of
the total number of applicants for
the 2013 appointment round of
Queen’s Counsel plus the number
of women who applied. She also
requested a regional breakdown of
candidates. The response from the
Attorney General, the Honourable
Christopher Finlayson, makes
sober reading. The table at right
shows that no Wellington women
applied and outside of Auckland,
women applicants numbered only
five. Why is it that out of 116
applications to be appointed
Queen’s Counsel, only 16 were
women?
Some may argue that there
simply are not enough able women
to boost the number of female
QCs. Others might argue that
women lack the confidence to
apply to become a QC. Whilst I
(*Queen’s Counsel Guidelines for Candidates 2013: appointments “in recognition of
their extraordinary contribution to the field of law”, pursuant to section 119C
Lawyers and Conveyancers Act 2006).
disagree with the first supposition,
there may well be merit in the
second one.
There is a growing acknowledgement that women lawyers
tend to undervalue their abilities
Wellington Branch and Victoria University invite you to hear this year’s
New Zealand Law Foundation International Dispute Resolution speaker –
Professor Catherine Rogers
Professor Rogers will present a seminar on ‘Lawyers without Borders’ on Wednesday, 27
November 2013, at 5.15-7.15pm on Level 8, NZLS Building 26 Waring Taylor Street, Wellington CBD.
The seminar will be CPD-compatible. Cost $10 to cover catering.
Please RSVP https://bookwhen.com/wellington-branch
Professor Catherine Rogers is a Professor of Law at the Dickinson School of Law,
Pennsylvania State University, where she teaches international arbitration and
professional responsibility. She focuses on the convergence of the public and private
in international adjudication, and on the reconceptualization of the attorney as a
global actor. She has written extensively on the need for a new conception of what
it means to be an “international lawyer” or a “global advocate,” using the term
“accidental legal tourists”, and points to the need for a new approach to regulating
these individuals. “Many of the world’s most urgent issues of transnational regulation
are increasingly being funnelled into international and transnational adjudications.
These adjudications are brought and managed by advocates whose ties and
commitments to any particular legal system are often partial and tangential. The response to resulting
ambiguities about what ethical rules apply to their conduct has primarily been a reliance on choice-of-law
rules that designate particular national ethical rules. There is an emerging realization, however, of the
inadequacy of national ethical rules, which were designed to apply to domestic practices.”
In the American context she speaks of rewriting American Bar Association rule 8.5 to regulate international
law practice. “Ultimately, however, resolving the problems with Rule 8.5 is only a first step in the ominous
but important task of developing a coherent regulatory regime for international legal practice.”
She is also involved in a new initiative, the Jerusalem Arbitration Center, a joint venture among the
International Chamber of Commerce of Israel, the Chamber’s International Secretariat in Paris, and its new
member, the International Chamber of Commerce of Palestine.
Professor Rogers was formerly on the law faculties of Università Commerciale Luigi Bocconi in Milan, Italy,
and Louisiana State University Law Center.
Her forthcoming book, Ethics in International Arbitration, will be published in 2014 by Oxford University
Press.
LEGAL WORD PROCESSING • SECRETARIAL SERVICES
and do little to draw attention to
their achievements in practice.
This in turn means they are often
overlooked and lack opportunities
to lead and gain experience in high
profile cases. The exception in my
view is Crown Law which for
many years has recognised the
distinct experience and perspective
women bring to their work.
When you consider the table
from a regional viewpoint more
questions arise. Surely women
achieving at a high level are not all
concentrated in Auckland? And
why, when our Law School
women graduates outnumber the
men, are so few women applying?
By applying in such large
numbers, our male colleagues
clearly consider they are good
enough to be appointed Queen’s
Counsel. Their confidence (and
that of their referees) is clearly
warranted. However there must
also be women lawyers who
deserve similar recognition. We
challenge the whole profession to
think carefully about which
women should throw their names
into the ring for the next
appointment round.
To do this, senior members of
the profession will need to
consider mentoring women,
encouraging them in their careers
and provide opportunities for them
to engage in challenging work.
Many women are modest about
their abilities and need to be
actively encouraged to see
themselves as potential leaders in
the profession.
Anne Hinton QC recently
commented
that
“these
appointments are in the hands of
the government. This is the
government that signed up to
CEDAW [The Convention on the
Elimination of All Forms of
Discrimination Against Women].
It is about time the government did
something about this. It is not
within the private sector’s hands to
appoint women QCs and women to
the Bench.”
If women put themselves
forward in greater numbers, the
hope is that the government will
act and appoint more women QCs.
The percentage of women QCs in
New Zealand is still very low at 15
percent so there is considerable
room for improvement. This
compares with only 7.92 percent
of all practising silks in Australia
being female, according to a recent
Australian Women Lawyers
(AWL) report. Over the ditch it
seems that women barristers
appear in Court for significantly
shorter periods of time when
compared to male barristers (on
average 2.8 hours for females and
3.8 hours for males). Private
practice law firms there are also far
more likely to brief male barristers
than female barristers. It seems
likely that similar statistics apply
here, but so far little research has
been undertaken in New Zealand.
The Auckland Women Lawyers’
Association currently has a survey
underway which we hope will
throw more light on what is
happening here.
Lastly, it seems that many
women who are appointed as silks
in Australia are soon appointed to
judicial positions. The challenge
there is to keep ahead of that trend
and to ensure there is sufficient
growth in the numbers of women
being made silks, so that when
they do head off to the Bench the
numbers don’t go backwards,
according to AWL President Kate
Ashmor.
New Zealand does not seem to
be suffering from the same
haemorrhaging of women QCs to
the Bench. Rather we need to
focus on identifying and
encouraging women candidates to
apply to become QCs in the first
place.
So who do you know who
should apply next time around, but
may need a push in the right
direction now? Talk to her today
and formulate a plan so that next
time, there is a wider diversity of
skills, aptitude and experience
available for the government to
make its selection.
Typing pleadings • Opinions • Correspondence
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Page 4 – COUNCIL BRIEF, NOVEMBER 2013
CONTINUING PROFESSIONAL DEVELOPMENT
A very well-attended 90-minute workshop at Te Papa on 22 October covered
guidelines to help members produce their continuing professional development
plan and records. This event was one of a number of similar events presented
by NZLS around New Zealand to mark to beginning of CPD. The workshop
was presented by NZLS Executive Director Christine Grice (centre) and
Professor Neil Gould of the University of Windson, Canada (left). Wellington
Branch President Mark Wilton is seen here speaking to the audience.
An valuable Criminal Law Committee CPD-compatible panel discussion on Reasonable Cause (Search and Surveillance)
was held on 31 October. Presenters, from left, were: Stephanie Bishop covering admissibility considerations, Elizabeth Hall,
practicalities of mounting a challenge, and Dale La Hood, search warrants. Branch President Mark Wilton introduced the
event. Earlier in the month the Employment Law Committee held an introductory session to provide occasional or junior
practitioners in employment law with an understanding of what to expect when appearing in the Employment Relations
Authority and and how to approach the Authority. The presenters were Wellington Branch Council member Steph
Dyhrberg and Authority member, Greg Wood. Tanya Kennedy of McBride Davenport James organised the event. This was
the first Wellington Branch CPD-compatible event. Attendees at both events were able to claim one hour CPD to carry
over for their individual plans next year. The Branch hope to facilitate a number of CPD-compatible events in 2014.
8TH ANNUAL CRIMINAL BAR (DES DEACON) DINNER
Judge O’Dwyer, Shane Robinson, Chris Nicholls and Jodi Ongley.
Sarah McLean, Geraldine Kelly and Louise Brown.
Judge Butler and Megan Boyd.
Judge Grace, Helen Cull QC, Judge Behrens and Justice O’Regan.
Angela Brown, Brittany Peck, Kerrin Eckersley, John Millar, Sarah Mann, Katty Lau,
Charlotte Hollingsworth and Chanelle Lovegrove.
Jamie Eng, Judge Walker and Miriam Wilkinson.
Dale La Hood, John Tannahill and Mike Lennard.
Emma Light, Tom Daniel and Kathy Scott-Dowell.
Sir David Carruthers, Sgt Kevin Shaw and Margaret Overton.
Andrea Ewing, Val Nisbet and Stephanie Bishop.
Left: Sarah McLean,
Greg Gimblett, Steve
Gill and Ian Murray.
Right: Judge Hobbs,
Megan Boyd, Mike
Lennard, Geneva Lowe
and Sarah Pettett.
Noel Sainsbury and Andrew Davie.
Rennie Gould, Chris Nicholls and Judge Thomas.
COUNCIL BRIEF, NOVEMBER 2013 – Page 5
CHINA DELEGATION
Wellington Branch hosts Chinese delegation
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CONTACT US TO ARRANGE A FREE DEMONSTRATION
A delegation led by Mr Yang Xiaodu, a high-ranking member of the Shanghai Communist Party leadership
and head of the Shanghai Disciplinary Commission, a powerful body monitoring official corruption, visited
the Society recently. Seen with Mr Yang are delegation deputy head Bei Hua, Wellington Branch president
Mark Wilton, Judge Sir David Carruthers of the Independent Police Conduct Authority, Mr Yang, NZ Law
Society Executive Director Christine Grice, Penny Liu of legal planit, Law Commission President Hon Sir
Grant Hammond and Lilly Shi, solicitor and executive China business, with Kensington Swan. Mr Yang was
previously Vice-Mayor of Shanghai and is well known to New Zealand. The delegation was interested in
speaking with New Zealand agencies on legal and institutional machinery required to prevent
corruption in government. The group had also met with the Ombudsman, officials from
Treasury and Ministry of Justice, and the Auditor-General.
0800 10 60 60
juniorpartner@thomsonreuters.com
www.jpartner.co.nz
NZBA/YLC Mooting Competition
Mr Yang and Mark Wilton.
Sir David Carruthers and Mr Yang.
Mr Yang with Hon Sir Grant Hammond and Christine Grice.
Supreme Court Justices Glazebrook, William Young and Arnold presiding at
the Mooting Competition 2013 in the old High Court.
Mark Wilton and Karen Clark QC.
Elizabeth Chan, Francis Cooke QC and Tim Castle.
Hugh McCaffrey, Catherine Shipton, Michael Green and Grace Boos.
These pictures were
taken at the NZ Bar
Association/Young
Lawyers’ Commiittee
Mooting Competition
final on 24 October and
the prizegiving ceremony
at Thorndon Chambers.
See page 1
Rikky Minocha, Nigel Salmons and Jamie Grant.
Jamie Grant, Nadia Gastaldo-Brac, Elizabeth Chan, Tim Cochrane
and Natalie Manuel.
Nikky Farrell, Anne Melkiau and Edward Greig.
Kerrin Eckersley, Tim Cochrane and Katy Martley.
Nigel Salmons, Nadia Gastaldo-Brac and Nicholas Wood.
Page 6 – COUNCIL BRIEF, NOVEMBER 2013
VUW LAW FACULTY
Shrinking expenditure for law study; a Criminal Cases Review Commission?
By Professor Tony Smith,
Dean of Victoria University’s Law School
THE Government
has released a
draft Tertiary
Education Strategy Document
2014-2019, with a
requirement that
feedback should
Professor Tony Smith be provided within six weeks. My
experience of these exercises is that
they are not so much about
consultation, an opportunity for
providing meaningful input into the
process, but that they alert their objects
to the first inklings of what a
government proposes to do to them in
the near future. This one is no different
in that respect, although it is in some
ways rather odd.
To start, several of the proposals
seem to have very little to do with
the tertiary education sector (which
I take to be the third sector, coming
after primary and secondary). I
wholly appreciate that there are
institutions other than universities
in the tertiary sector at which some
of this might be targeted. But of the
six “strategic priorities” identified,
the second aims at “Getting at-risk
young people in to a career”, and
the fourth at “Improving adult
literacy and numeracy”. I have
absolutely no doubt that these
should be national priorities
(especially in both cases, perhaps,
for those in prison), but I have some
difficulty in seeing quite how the
tertiary education sector is
supposed to achieve them. Priority
three aims at “Boosting the
achievement of Maori and
Pasifika”, and again I have no
quarrel at all with the objective –
universities have already been
given targets that they are expected
to achieve in this area. But I would
have thought that correcting some
of the manifest problems at primary
and secondary education level
should come before a turn to the
tertiary sector is appropriate.
For
some
time
now,
governments have been seeking to
identify and forge closer links
between the state of the economy
and the contribution of the tertiary
sector to the nation’s economic
well-being. Priority number one in
the new Strategy Document is
“Delivering Skills for Industry”.
We are reminded that there are
“skill shortages in specific areas
such as ICT, large animal sciences
and engineering”. For those of you
struggling to decipher the acronym,
incidentally, it stands for
Information and Communications
Technology. Google it, as I had to
do, and you will see just how many
other plausible candidates there are
for this. Mindful as I am of the
mantra that “context is all” in
matters of interpretation, I rejected
out of hand the possibility that this
might refer to the International
Communist Tendency.
Worry about national skills
shortages can be seen as being of a
piece with one of the early
initiatives of the current
Wellington lawyers prominent in
50th NZ Universities Law Review
THE New Zealand Universities
Law Review is celebrating the 50th
anniversary of its first publication.
One of New Zealand’s earliest
law reviews, then, as now, it is a
joint venture between the country’s
law faculties, has published many
of the country’s leading academic
and legal authors and leads debate
in legal matters.
A Special Anniversary issue was
launched on Friday, 1 November to
celebrate the milestone. Its theme
is taken from a Maori saying: Nga
tapuwae o mua, no muri which
translates as “Footprints of the past,
to guide (influence, navigate,
inform) the future”.
The Editor of the Special
Anniversary edition is Professor
Tony Smith, Dean of Law at
Victoria University. Contributors
include: Justice Sir Grant
Hammond
(Judges
and
Academics); Sir Geoffrey Palmer
(Constitutional Reflections on 50
years of the Ombudsmen in New
Zealand); Professor John Burrows
(Academics and Law Reform) and
Don Mathieson (Fair Criminal
Trial and Exclusion of “Unfair
Evidence”).
Don Mathieson QC has the
distinction of being published in
both the first edition of NZULR
(Australian Precedents in New
Zealand Courts) in August, 1963
and the Special Anniversary issue.
Other contributors to Vol 1, No 1
include G. P. Barton (The Chancery
Master); B.D. Inglis (Evidence of
Adultery) and Sir Alfred North
(Parliaments and Great Councils).
A half-day seminar featuring
many of the Special Anniversary
issue contributors will also
celebrate the longevity and
relevance of the publication.
“There is a focus on new and
emerging scholars in both the
Special Anniversary issue and the
seminar” says Editor, Professor
Tony Smith.
“This is in keeping with the
theme of looking to the past and, at
the same time, forward to the
future. The quality of their
contributions bodes well for the
outlook of the legal academy in this
country.”
For
more
information,
please contact: Nicky Saker,
Communications Adviser, Faculty
of Law, Victoria University of
Wellington
government to focus tertiary
education spending on the so-called
“STEM” subjects, Science,
Technology, Engineering and
Mathematics, with more student
places to be made available in these
areas. Whether universities should
be concerning themselves with
“skills” as opposed to more
fundamental science in these areas
is perhaps a matter for debate – and
it is a debate that has been strongly
contested in the UK in the last few
years. Where a Dean of Law might
be a bit concerned about these
developments is that the
government has repeatedly made it
plain that there is to be no extra
funding to the university sector (as
opposed to the tertiary sector more
widely) to accomplish these
objectives. You can have more
places for these subjects, is the
message, but you will have to find
them within your existing
resources. Law is a candidate for
the expenditure to shrink.
International linkages
Lest you think that my take on
the Strategy Document is entirely
negative, I should say that I am
wholeheartedly in favour of the
sixth priority on the list , “Growing
International Linkages”. Placed
where we are at the bottom end of
the earth, we New Zealanders have
to be more outward-looking than
Europeans and Americans, and
increasingly Asians, whose claim
on the attentions of the rest of the
world are obvious and visible. But
making and keeping these links,
even with all that is most up-to-date
in the ICT paraphernalia, is hard
and expensive work, especially in
an environment where no further
cash is to be forthcoming to help us
accomplish this worthwhile
objective.
Criminal Cases Review Commission?
The Privy Council’s quashing of
the conviction in the Lundy case
has precipitated another round of
discussions as to whether or not it is
appropriate for New Zealand to
establish a Criminal Cases Review
Commission similar to those in
England and Scotland. I heard very
few views that had not been fully
rehearsed before with the
exception, perhaps, of an English
academic who complained that the
English Commission was too
concerned with cases involving
relatively trivial criminality. I do
not see the force of the criticism – it
was precisely that these sorts of
cases did manage to slip through
the system and result in wrongful
convictions that persuaded
JUSTICE to recommend the
establishment of the Committee in
the first place. The other slightly
dispiriting element of the
discussion was that none of the
participants seemed to have been
aware that junior counsel in the
appeal, Malcolm Birdling, had
recently completed a study,
“Correction of Miscarriages of
Justice in New Zealand”. The study
involved field work with the
Ministry of Justice files and
provided a number of fresh insights
into the workings of the New
Zealand system, some of them very
critical of what it found. It is
available free on-line at http://
ora.ox.ac.uk/objects/
uuid:2dae4513-4fd2-40cd-bb6adbba696d6d7f, and is a must-read
for anybody seriously interested in
participating in the debate.
Continuing professional
education
In this column last month,
I expressed some views about
continuing Professional Development in the United Kingdom, of
which I have had personal
experience, that were somewhat
this side of complimentary. It was
interesting to read, therefore, that
the English Solicitors Regulatory
Authority has just announced that
it proposes to “end the current
discredited ‘tick-box’ approach
to post-qualification training
(continuing professional development) and introducing a system
under which, while professional
development remains mandatory, it
is in large part the obligation of
individuals”. Just so.
Law Foundation visiting scholar to speak
A leading scholar of international
arbitration and professional ethics is
visiting Wellington in November.
Catherine Rogers is a scholar of
international arbitration and
professional ethics. Her visit will
include sessions on Third Party
Funding and her work with the
Jerusalem Arbitration Centre. This
new initiative seeks to offer
arbitration on issues relating to the
$4B yearly trade between
Palestinians and Israelis as a peace
building enterprise – 90 percent of
Palestinian trade is with Israel.
“Third Party Funding has real
ethical issues, including who is in
control of the case – the funders or
Candidate Information
Meeting for March 2014
admission ceremonies
Presented by the Wellington Branch NZ Law
Society and the Wellington High Court Registry
1-2pm Monday 11 November 2013
Level 8, NZLS Building
26 Waring Taylor Street, Wellington
Please RSVP https://
bookwhen.com/wellington-branch
Please encourage anyone you know who
will be seeking admission in March next
year to attend.
the plaintiffs? But whose case is it?
Who decides about appeals – the
funders or the plaintiffs? Return on
funding drives strategy and shapes
the opportunity for justice and
determines the demands on the court
system. It’s a fascinating, topical
subject,” says Deborah Hart, CEO
of AMINZ.
Professor Rogers schedule in
Wellington is:
27 Nov – Law Society seminar in
Wellington “Lawyers without
Borders”, NZLS Building, Level 8,
NZLS Building, 26 Waring Taylor
Street, 5.15pm – 7.15pm (see page
3 for more details)
28 Nov – AMINZ breakfast
meeting “Third Party Funding”
AMINZ Conference Room, Sir Ian
McKay-Bill Draper AMINZ Suite,
Level 3, 276 Lambton Quay,
7.15 – 8.45am
28 Nov – VUW Law School
interview with Linda Clark about
the Jerusalem Arbitration Centre in
LT3 (Old Government Building)
from 6.30pm – 8.30pm
Professor Rogers’ visit is
generously funded by the New
Zealand Law Foundation.
COUNCIL BRIEF, NOVEMBER 2013 – Page 7
COMMUNITY LAW CENTRE
Should schools punish students for cyberbullying outside school hours?
By Felicity McNeill, Community Lawyer
Community Law Wellington and Hutt Valley
COMMUNITY Law Wellington
and Hutt Valley hosts the Parents
Legal Information Line (PLINFO),
a free phone service for parents and
caregivers seeking information and
assistance on issues about children
and young people at state or
integrated schools. PLINFO
receives an average of 400 legal
enquiries a year from callers whose
children have run into some kind of
problem at school. A recurring
issue is bullying in schools, which
can be anything from emotional
threats to physical violence.
Increasingly, callers are asking
about the school’s jurisdiction
where cyberbullying has taken
place.
Bullying in cyberspace is the
focus of international media
coverage as well as domestic
legislative reform.1 It is also on the
increase among New Zealand
school
children.
Often,
cyberbullying that has its origin in
the school ground continues and
escalates after school hours, as
cyberbullies continue to harass and
attack victims at any time of the
day. The question is, can schools
punish or suspend students for this
after-school conduct?
Legal obligation
As a starting point, schools have
a legal obligation to ensure that
students are safe in school.
The National Administration
Guidelines (NAGs) provide that
schools must “provide a safe
physical and emotional environment for students” (NAG 5(a)) and
“comply in full with any legislation
currently in force or that may be
developed to ensure the safety of
students and employees” (NAG
5(c)). Under health and safety law,
a Board of Trustees must take all
practicable steps to ensure no
hazard or actual harm occurs to
people in the vicinity of the school.2
It is well established that schools
have the authority to discipline
students for bullying behaviour at
school, and that Boards may make
bylaws or school rules related to the
control and management of the
school.3
However, the jurisdiction of the
school to discipline a child is less
straightforward when students
engage in bullying conduct outside
school grounds. There is a lack of
New Zealand authority on this
matter, but there appear to be cases
on the territorial and substantive
limits of schools’ authority in other
jurisdictions that suggest that
student misconduct must be
sufficiently proximate to the school
- in connection, time and place - for
the school to have jurisdiction.4 For
example, a student bullying another
student on the weekend in a skate
park would not be ‘sufficiently
connected’ for the school to have
jurisdiction. In contrast, a student in
school uniform who – in front of
other students in a shopping mall –
plays a harmful trick on another
student would be ‘sufficiently
connected’.
Outside school grounds?
School discipline outside the
school grounds can arguably be
exercised if bullying occurs on
school trips, on a school bus, when
a student is in school uniform, if
they are at a school event, or when
the student is otherwise
representing the school. A school
may be within its rights to take
action over a student who, for
example, damaged a school’s
COUNCIL BRIEF
The monthly newspaper of the
Wellington Branch NZ Law Society
Advertising Rates: casual or contract rates on application. Telephone Robin
Reynolds, Reynolds Advertising, Kapiti Coast (04) 902 5544, e-mail:
adman@paradise.net.nz. Rates quoted exclude GST.
Advertising Deadline: for the December 2013 issue is Wednesday 27 November, 2013.
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,
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Will Notices: $57.50 GST inclusive for each insertion.
Subscriptions: Annual subscription $46.00 incl. GST. Extra copies $5.00 each.
Subscription orders and inquiries to: The Branch Manager, New Zealand Law Society
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Editor: Chris Ryan, telephone 472 8978, (06) 378 7431 or 027 255 4027
E-mail: chrisr@wise.net.nz
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 APN Print, Wanganui.
reputation outside of school hours
by posting an offensive blog
concerning the school community.
In such an instance, the substance
of it is capable of being
characterised as affecting the
school’s educational mission,
making it a matter for school
discipline.
Jurisdiction must be clear
But what about cyberbullying
that does not “name the school”,
and which occurs outside the
school grounds? Unless there is
evidence that cyberbullying
continues at school, it is likely that
schools do not have the jurisdiction
to punish or suspend such a
bullying student. Bear in mind that
under the Education Act 1989,
schools should have clear
jurisdiction before administering
punishment or a “section 14
suspension”, which must meet the
specific threshold of “gross
misconduct
or
continual
disobedience which is a harmful or
dangerous example to other
students”. Over a decade ago
(before cyberbullying was even a
real possibility) the academic Paul
Rishworth argued that “section 14
does not envisage discipline for
conduct with no connection to a
school other than that the
perpetrator happens to be a student.
This may well mean that schools
will have students in them who are
known to have done certain things
out of school, and who might in that
sense be harmful “examples” to
others. This might be thought
undesirable, but the fact is that
section 14 is intended to provide
sanctions for enforcing rules about
behaviour at school, or sufficiently
connected to a school such that the
school’s educational mission is or
is potentially affected. The power is
not a free standing power to rid the
school of unhelpful role models, for
that would be at odds with the right
of the student to an education.”5
Take proactive action
It is, nevertheless, within a
school’s prerogative to take
proactive and preventative steps to
address cyberbullying outside
school hours. NetSafe proposes a
range of interventions: a “class
contract” with all students that
includes appropriate behaviour
online or on mobiles, both during
and after school hours; and to
continuously engage parents and
caregivers about the perils of
cyberbullying.6 For now, schools
also have the option of engaging
assistance from the police, as
cyberbullying may amount to a
criminal offence which warrants
police warnings or a criminal
charge if the student is over sixteen
years of age. It is noted that on 14
October 2013,7 the government
released a response to the Law
Commission’s 2012 report on
cyberbullying and other harmful
uses of communication technologies,8 providing an indication
that the Communications (New
Media) Bill has priority 3 status on
the 2013 Legislation Programme. It
is anticipated that in the not too
distant future, schools will be able
to rely on the law when dealing
with students who cyberbully
outside school hours.
Felicity McNeill is the
Supervising Lawyer of the Parents
Legal Information Line (PLINFO),
which has been in operation since
1999. The PLINFO number is 0800
499 488.
Footnotes
www.beehive.govt.nz/release/
time039s-cyber-bullies
2
Health and Safety in Employment
Act 1992, s 16.
3
Education Act 1989, s 72.
4
Paul Rishworth “The lawful
powers of schools - territorial and
substantive limits” (October 2001)
New Zealand Law Society
Seminar ‘Recent Developments in
School Law’ at 31 - 37.
5
Rishworth, above, at 26.
6
www.cyberbullying.org.nz/
teachers/
7
www.justice.govt.nz/publications/
global-publications/h/harmfuldigital-communications-cabinetsocial-policy-committee-paper/
publication
8
www.lawcom.govt.nz/project/
review-regulatory-gaps-and-newmedia/publication/ministerialb r i e f i n g / 2 0 1 2 /
ministerial-briefing-harmfuldigital-communicationsadequacy-current-sanctions-and-remedies
1
New lawyers’ CVs at Wellington Branch
THE Wellington Branch NZLS holds the CVs of lawyers and people
preparing for admission who are looking for employment. If you are
looking for a researcher or a new employee (part-time or full-time) contact
the Branch to see whether we can match up a candidate with the skills you
are looking for.
Council Brief Advertising adman@paradise.net.nz
Crossword Solutions
From page 2
Cryptic Solutions
Across: 6 Enraged; 7 Get on; 9 Blunt; 10 Ribands; 12 Rear windows;
14 Staff nurses; 18 Toddler; 19 Lyric; 21 Sheep; 22 Stretch.
Down: 1 Ingle; 2 Pawnee; 3 Net; 4 Relaid; 5 Low-down; 8 Riviera;
11 Printer; 13 Atrophy; 15 Fidget; 16 Elysee; 17 Pinch; 20 Sty.
MA
m
Answers for puzzles from page 2
1
Quick Solutions
Across: 6 Appoint; 7 Minor; 9 Later; 10 Cushion; 12 Wooden spoon;
14 Part company; 18 Cavalry; 19 Amass; 21 Acted; 22 Ordered.
Down: 1 Speak; 2 Bolero; 3 End; 4 Bishop; 5 Solomon; 8 Turnips;
11 Adjourn; 13 Balance; 15 Travel; 16 Number; 17 Askew; 20 Art.
‘LAWYERS WITHOUT BORDERS’
– SEMINAR BY PROFESSOR CATHERINE ROGERS
27 NOVEMBER; SEE PAGE 3 MORE DETAIL
DESIG N
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Deadline December Council Brief – Monday 25 November
THE WIZARD OF ID
Page 8 – COUNCIL BRIEF, NOVEMBER 2013
SITUATIONS VACANT
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Masterton lawyer to spend summer walking
the South Island leg of Te Araroa NZ trail
WAIRARAPA lawyer Julie Millar is
abandoning her desk over the summer
to spend three months walking the
South Island section of Te Araroa,
New Zealand’s continuous 3,000 km
walking track which winds from Cape
Reinga to Bluff.
The Associate at Logan Gold Walsh
in Masterton says her bosses have
kindly given her nearly three months’
leave of absence to walk the 1400km
South Island stretch of Te Araroa,
starting just after Christmas at Ship
Cove in the Marlborough Sounds.
Julie has been a keen tramper since
leaving university, walking many
tracks in the Tararuas and fulfilling a
personal goal of visiting all 48 huts and
bivvies in the Tararuas that are marked
on the DOC website. She has done
some of New Zealand’s “great walks”,
such as the Milford and the Heaphy,
and tramped elsewhere in the South
Island. She has also climbed seven of
the Ruapehu summits and three peaks
in the Nelson Lakes National Park and
is a search and rescue volunteer.
Her interest in Te Araroa was
piqued when she heard a speaker from
the Hutt Valley Tramping Club talking
about walking the Appalachian Trail
and then read Geoff Chapple’s book Te
Araroa: Walking the New Zealand
Trail. “I really like the idea of ‘through
hiking’ – it’s popular in the States but
not a lot of people know about it here. I
was enthralled by the challenge of it – I
am really looking forward to three
months with minimal technology.”
It’s a long time to spend on the track
and needs a lot of careful planning. “I
will send food forward in December
before I leave, mostly dehydrated food
as it is lightweight and high calorie.
While most of the walk is hut to hut I
will have to camp sometimes and have
an ultralight tent. I bought an annual hut
pass earlier in the year which covers all
of the huts – $90 for almost three
months accommodation isn’t bad. I’ll
need to stay in towns at least once a
week either camping or in
backpackers’.”
No doubt there will be other
adventurous walkers to team up with at
least some of the time, but Julie is also
meeting up with other tramping friends
and husband Glen is joining her in
Queenstown about two thirds of the
way. For around three weeks she
expects to be walking by herself.
As well as pursuing her own great
adventure Julie hopes to raise money
for the three-year-old Carterton boy,
Quinn Lyford, who has been diagnosed
with the degenerative muscle wasting
disease
Duchenne
Muscular
Dystrophy, and whose family need
funds for his care and drug treatment.
“I’m going to make a little bit of money
for him through local businesses
sponsoring part of my blog to be
published each week in the Wairarapa
News. I’m also looking at setting up a
special purpose trust for him but at
present the funds are being directed
through the Rotary Club of Masterton
Charitable Trust.”
Julie begins her epic journey on 27
December 2013, with her return to
work on 24 March 2014 a distant
dream. She will have a personal locator
beacon and a SPOT device that will
regularly transmit her location. You
can follow her progress via the internet.
Julie will have a 4G tablet which will
enable her to get news out anywhere
she has cell cover. She will also stop
about once a week in townships and
should be able to get news out then.
Julie’s web address is –
www.purposefulwandering.co.nz –
and it is almost ready to go!
Julie Millar.