Canterbury tales Canterbury tales
Transcription
Canterbury tales Canterbury tales
Canterbury tales Canterbury tales Canterbury Westland Branch New Zealand Law Society June 2013, Vol. 19, No. 5 Law Library — back where it belongs The Law Library has moved back into the Law Courts Building in Durham Street. Library staff have been waiting for this return and working tirelessly towards it for months. Law Librarian Julia de Friez and the team have moved, packed and unpacked the collections so many times that it is a relief for them, and the books, that they are finally all back together at 282 Durham Street. Julia told Canterbury Tales that initially she thought the move to Homersham Place would be very temporary and that they would be back in the Library in a matter of months. As we all know this was not the case and consequently the temporary Library at Homersham Place was their home for more than two years. The main reason for the long delay was that the part of the building where the library is located had restricted access under s45 Canterbury Earthquake Recovery Act 2011 notice (yellow stickered). Extensive remediation was carried out on the Library part of the Courts building, with that part of the building being given a Code of Compliance and the s45 notice removed in May 2013. Because of changes in space allocation in the building, Library staff have had to make changes to the shelving layout of the collection in the Library. These layout changes may require some practitioners to seek assistance from the librarians who are always happy to help locate the desired book. Kerry Cook, who has regularly utilised the temporary Library at Homersham Place, can vouch for the assistance given by the librarians. The refurbished Law Library in the Law Courts Building in Durham Street. More pictures Pages 6 and 7 and praise for Library staff. When asked what impact the move has had and will have for him he replied: “I found the only difference when the library was at Homersham Place was the distance. The librarians were, as always, exemplary. Indeed, they would often go out of their way and would source books for you whether from town or elsewhere. As anyone knows, a library is a necessity and we have the benefit of wonderful librarians too. The shift back to town will mean that it is closer and I am sure the librarians will still be as helpful as ever”. The Library staff — Julia de Friez, Theresa Graham, Mary Cain, Sarina Barron and Rachel Hemmingsen — look forward to seeing everyone back in town. For further information email canterbury@nzlslibrary.org.nz or phone 377-1852. Death notice The Council of the New Zealand Law Society Canterbury Westland Branch records witah regret the death on 29 May 2013 of Frederick John Shaw, barrister and solicitor of Christchurch. 22 Canterbury Canterburytales tales Vino Fino Photo Caption Each month we have a photo caption competition where we invite you to submit a caption. The winner will receive two bottles of wine sponsored by Vino Fino (www.vinifinoco.nz, 188 Durham Street). Send your entry to the Canterbury Westland Branch New Zealand Law Society, P. O. Box 565, Christchurch. Or email to canterburywestland@lawsociety.org.nz. All entries must be received by July 9 2013. The winner will be announced in the next edition of Canterbury Tales. The winning entry for last month’s picture (below) was submitted by Dee Morgan. “Mine, mine, mine, mine, mine...........” (Think the movie Finding Nemo). President’s Column The last month has seen some significant steps forward on our path to normality. Firstly, the Marae Court had its final sitting on 31st May 2013 and the District Court matters being heard there are again being heard in the main Courts building in Durham Street. While the Marae Court had some advantages, particularly in that it had a greater sense of being a community Court than the central Court does and fostered greater co-operation between iwi, police, justice staff and related services, lawyers will not miss the additional travel time it created, nor will the judiciary miss the primitive accommodation which served as judges’ chambers. However we are all grateful that this facility was made available at a time of need by the Marae Trust to allow judicial processes to continue to function. A week before this I attended a function to mark the return of full registry services to the main Court building, and the introduction of a new multi-jurisdictional Customer Service Centre which was officially opened by the Minister of Justice, Judith Collins. The Customer Service Centre is innovative and is designed to make things as easy as possible for the users of Court services, rather than for the Court itself. Speaking to staff who will be on the frontline of this service, I was impressed by their willingness to take on this demanding role. They will need to be prepared to answer questions on any topic, ranging from payment of fines, to lodging proceedings in the High Court. They must become familiar with every aspect of Court services in order to do this effectively, but I am sure for the general public using the Courts, having a “one stop shop” will be welcomed. Another milestone is the return of access to the Law Library in the main Court building. This is something that has been looked forward to by library staff and practitioners alike. Visiting the library a few weeks ago with Julia de Friez, our law librarian, I felt a huge sense of nostalgia to be standing again in that repository of learning. Even the smell is distinctive — a sweet, dusty smell, that can only be created by gathering 150 years’ worth of books on the law in one place. It is reassuring to go into a place where one can physically touch legislation and reports dating from the 16th century, and also go online to access electronic versions of the latest local and overseas decisions. The only dampener on this event is that internal access from the Courts to the library will no longer be available to lawyers. For security reasons, the Ministry has decided that lawyer access to the library must be provided exclusively through an external door on Chester Street. It was acknowledged that this will make it more difficult for counsel to use the service. They must exit the Court building and go round to the external door to get entry to the library, then return to the Courts themselves by going back outside and around through the security check at the main entrance. The Society is discussing with Court staff the possibility of having an intercom at the external door, so that out of town counsel and lawyers without swipe access cards can still be provided access to the library if they should need it. Clearly this issue is one which will also need to be resolved in the design of library access in the new Justice and Emergency Precinct. Finally, it was with great pleasure that the Canterbury profession received the news that two of its own — Jonathan Eaton and Pip Hall — have been appointed as Queen’s Counsel. Both have illustrious careers at the criminal bar and this accolade is truly deserved. The Canterbury profession also notes with pleasure just how many of the recent round of Queens Counsel appointments are graduates of the University of Canterbury. No matter where their legal careers have taken them, our local university has provided them with an excellent grounding in the law. Rachel Dunningham Canterbury tales 3 Leo truly a man of steel By Zylpha Kovacs At 84 years of age, Leo Steel is not only one of the oldest solicitors still holding a practicing certificate he was also the oldest competitor in the events held on the day of the 2013 Christchurch Marathon. Leo contested the 10km event and was very pleased with the day and his run. He ran the second 5km faster than the first, which was one of his goals for the day. Leo still manages to get out and run five or six times a week, but running was not an activity that Leo would have even considered in his youth. He described himself in those days as “very fat and very unfit.” However, he was inspired to make a lifestyle change. In the early 1960s one of the most outstanding athletic coaches of all time, Arthur Lydiard, who travelled the country giving inspirational speeches and popularising the sport of running, held one of his seminars in Christchurch and Leo attended. Leo wanted to go out deerstalking but knew his body was not up to it, therefore, he readily accepted Arthur Lydiard’s suggestions and began slowly running. He says that he had no running ability but he enjoyed it and stuck at it. He had a young family at the time and with both his work and family commitments the only time he could find to run was in his lunch hour, consequently, each lunch hour would find him running around Hagley Park. Running around Hagley Park today is commonplace, however, back when Leo began it was so rare that people used to stare at him and toot their car horns. It was seen as very unusual behaviour. He tells the story of attending a law function when a judge approached the group of young lawyers he was standing with and asked “how is your running going Leo”? He may not have been recognised for his legal prowess but he was the only one the judge could name. Running may not have been recognised as a recreational sport back then but it did get you noticed. Leo was later joined by two running companions — fellow lawyer Bob Boland and famous hockey coach Cyril Walter. There must have been something special in the air back then as Bob Boland can be found today at the impressive age of 90 still working at Steel and Co and also still running. Cyril Walter successfully coached the Canterbury University men’s hockey team to the Christchurch club championship every year from 1967 to 1980. He also coached five of the players that appeared in New Zealand’s 1976 Olympic gold-medal winning side. Leo Steel.............84 and still running five or six times a week. Photo courtesy Fairfax Media/Iain McGregor Winning a gold medal may not have been one of Leo’s objectives when he began running, however he did have his successes. In 2000 he won the New Zealand over 70 years age group half marathon championship and throughout the years he has completed 15 marathons and about 10 half marathons. Leo says his reward for running is that it clears his mind. He explains that as he becomes tired during his runs, his mind clears and he is able to filter out peripheral information allowing him to focus down on the real concerns in any given situation. He acknowledges that he has solved many difficult and complicated issues while out running. Leo’s sons, Dave (Trust Accountant) and Andy (a partner at Steel & Co), are carrying on the tradition of running around Hagley Park in their lunch hour. They competed in the 2013 half marathon and have competed in other marathons and half marathons. His other son Greg (also a partner at Steel & Co) is still competing in the Masters football competitions. Leo’s two daughters, Julie and Kathryn, tinker with running from time to time. These days Leo may not have as many complicated legal issues to sort out as he has reduced his legal workload in order to care for his wife Val. However, he still enjoys working in the legal profession and while his regular runs around the parks in Halswell do not gain the same attention as his earlier running in Hagley Park, it can be said that running anywhere at 84 years of age is definitely worth a toot on the horn from passing cars. 24 Canterbury Canterburytales tales Draft check before signing By Bryce Town Partner Morrison Kent As practitioners will hopefully now be aware, from 8 April 2013, pursuant to the new Real Estate Agents Act (Professional Conduct and Client Care) Rules 2012, real estate agents must recommend that a person seeks legal advice before signing a contractual document. The relevant rule is: Agency Agreements and Contractual Documents — Clause 9.7 which states: “Before a prospective client, client or customer signs an agency agreement, or any other contractual document, a Licensee must: (a) Recommend that the person seek legal advice; and (b) Ensure that the person is aware that he or she can, and may need to, seek technical or other advice and information; and (c) Allow that person a reasonable opportunity to obtain the advice referred to in paragraphs (a) and (b).” At first instance the author applauds and congratulates the real estate industry for enacting this new rule. Practitioners should be aware, however, that the new rule has numerous advantages for a client, but also the potential to cause a significant drawback to the lawyer. What is already occurring, and is likely to develop as an on-going arrangement, is that in compliance with its obligations under the new code the agent will recommend to the client that a lawyer be requested to check a “draft” agreement prior to the client signing a “final”. This means that either the client or the agent on behalf of a client (a slight complexity arises here given that the agent will not be acting for the purchaser, but rather the vendor) will approach the lawyer either by phone or email and request that they check the draft agreement that the agent will have prepared prior to their client signing it. The moment practitioners receive these emails or communications for urgent perusal of a draft agreement, a time constraint is placed on the lawyer. As practitioners will be aware, if they treat the request in a cursory manner and give the agreement the once-over without really focusing on the issues, then the possibility of overlooking a particularly important issue could arise. The potential for a claim for negligence or failure to treat the perusal of the draft agreement in a prompt and comprehensive manner is a real one. This brings us to the core concern: what practice a lawyer should use when a request for an urgent perusal of a draft agreement arises. The first issue to take into account is the fact that it is unlikely that a lawyer will have the time to generate a letter of instruction with terms and conditions and get it out to the client prior to commencing the task requested. There are provisions in our code that permit such an urgent activity and I refer you to Chapter 3.7 to the Schedule Rules of Conduct and Client Care For Lawyers which provides an exception “if it is, in the circumstances, impracticable for the lawyer to provide the information referred to in those Rules”. The ADLSI Property Law Committee’s view is that once a request is received, a practitioner should immediately contact the client to establish: 1. The ambit of work that will be undertaken; 2. A time frame in which the client requires the perusal of the draft agreement and presumably the generation of Special Conditions and comments concerning alterations to be made, etc.; and 3. The fee for such an urgent attendance. Given that the practitioner is likely to have to drop other items of work in order to deal with the urgent request, it is not unreasonable for a lawyer to charge a fee that includes sufficient recognition of the urgency of the task involved. While some tasks will be so urgent that they require a practitioner to provide some verbal comment at first instance, it is essential that such verbal comment be backed up by email or letter. It may well be that some lawyers will attempt to shortcut the issue by requesting the agent to include a purchaser’s solicitor’s approval clause which may well achieve the purpose of buying sufficient time. The lawyer could also recommend that a wide-ranging due diligence clause be included. Obviously, with the new Code only becoming operative on 8 April 2013, new practice arrangements are still developing and the Property Law Committee welcomes comments from practitioners as to how they see the new practice working. In essence, while the new practice has significant benefits to the clients insofar as allowing the lawyer to peruse the draft agreement prior to its being signed (which will hopefully limit some of the gross errors that currently occur), it also places a heavy responsibility on that practitioner to respond within the urgent timeframe that will no doubt be imposed. On top of this they must treat the matter comprehensively and give the draft agreement due consideration, notwithstanding it may be an unanticipated task that arrives on the practitioner’s desk at any time during the week or even overnight. Suffice it to say, the intensity of pressure on practitioners will continue to mount with this new Code of Conduct. This article first appeared in Law News, published by ADLS. Canterbury tales 5 Constitution conversation By Natalie Baird Senior Lecturer University of Canterbury On 16 May, the New Zealand Law Society (NZLS) Canterbury Westland Branch joined forces with the School of Law to host an event as part of the current “Constitution Conversation”. A mixed audience of more than 120 people attended including practitioners, students and University staff. The event was chaired by Professor Philip Joseph. Panellists were Constitutional Advisory Panel co-chairs (and Cantabrians) Sir Tipene O’Regan and Professor John Burrows, NZLS Canterbury Westland Branch President Rachel Dunningham and member Jared Ormsby. Professor John Burrows started the discussion by explaining the current process and NZLS appointment Canterbury lawyer Andrew Logan (right) has been elected unopposed as the new NZLS Property Law Section chair. A partner in Christchurch law firm Mortlock McCormack Law, Andrew was born in Methven, schooled in Christchurch and obtained his LLB at Canterbury University. Apart from a six-year stint with Bell Gully in Auckland and time with a large firm in London, he has always lived in Christchurch. Andrew is actively involved in the Christchurch community. He is pro bono director of the mammoth project of rebuilding the historic Isaac Theatre Royal as a centrepiece of the new arts precinct. He is also an honorary solicitor for three not-for-profit organisations. Andrew has been on the Property Law Society executive since 2002. He was elected deputy chair in 2010 and takes over from Chris Moore, the former chair who has become president of the New Zealand Law Society. He says that his post-quakes Christchurch perspective will be important in his new role as a lot of the current property based issues have come from the disaster’s after math. “The earthquake’s relevance to everyone is evidenced by the change of the ADLS lease to reflect what has happened down here,” Andrew says. Rachel Breckon identifying some of the key issues forming part of the review. He noted in particular that any issue could be raised with the panel even if it had not been identified as a key issue. One such issue is whether New Zealand might become a republic. Sir Tipene noted that at this stage in its consultations, the panel was well apprised of exactly what the issues were but urged the audience to put forward suggestions for the “how” of constitutional change. Rachel Dunningham offered a practitioner’s perspective and suggested that the current system served lawyers and their clients well and did not necessarily need major overhaul. She predicted that while some codification of our constitutional arrangements might occur, there was little appetite for major change with the current arrangements being flexible, practical and able to respond to issues as they arose. Jared Ormsby considered what a supreme law constitution might mean for the Treaty of Waitangi. He noted that, no matter the outcome of the review, the Conversation itself was worthwhile as it would help to draw out what our fundamental values are as a society. The Constitutional Advisory Panel is receiving submissions until 1 July. For more information, or to make a submission go to at the Panel’s website — http:// www.ourconstitution.org.nz/. 26 Canterbury Canterburytales tales Law Library — back Left and below, photographs of the havoc wrought on the earthquake and work on the restoration. Below ri Library staff praised Good library research facilities are pivotal to the maintenance of standards in the profession and the loss of the main library after the earthquake was a significant blow and one from which we are only now properly recovering. The staff are to be congratulated for their efforts in ensuring that the temporary facility at Homersham Place served the profession well in the post-earthquake period. Problems in accessing materials not located in the temporary facility were quickly overcome and the making of arrangements to access the facility after hours was very much appreciated. Both Julia and Mary (with whom I had my primary dealings) went the extra mile to ensure that appropriate texts were recovered from the main library and that other materials which normally would have been available could be accessed from the broader library network throughout New Zealand. The temporary loss of full library services should serve as a timely reminder of the importance of the availability of a well-resourced law library. Looking ahead to the proposed court complex, we must strive to ensure that proper arrangements are made to accommodate our present library and that appropriate space requirements for the library are not whittled down by the demands for space for other court related activities. A C Hughes-Johnson QC Canterbury tales k where it belongs e Law Library by the February 22, 2011 ight, how the Library looks now. 7 28 Canterbury Canterburytales tales Case summaries (64) Criminal Bar Association of New Zealand Inc v Attorney-General — Court of Appeal, Randerson, Stevens & Wild JJ, 24 May 2013, [2013] NZCA 176. Parties: Criminal Bar Association of New Zealand Inc (Appellant), Attorney-General (First Respondent), Stuart White (Second Respondent). LEGAL AID Partly successful appeal from HC decision dismissing application for judicial review of new fees framework for criminal legal aid - new framework known as Fixed Fees Policy (fixed fee policy or policy) was introduced by Government in March 2012 - policy comprised fixed fees for majority of criminal legal aid work with ability to seek amendment of those fees for complex cases and cut remuneration of lawyers providing criminal legal aid services by average of 10% - policy challenged by appellant Criminal Bar Association of New Zealand representing lawyers practising criminal law in New Zealand - comprehensive review of legal aid arose out of concerns over rising cost of legal aid and led to report “Transforming the Legal Aid System” (the Bazley report) in Nov 2009 - Bazley report identified inflexible procurement provisions in Legal Services Act 2000 (2000 Act) which prevented Legal Services Agency (LSA) procuring services in most efficient way possible, considered that existing funding on fee for service basis did not encourage efficiency or innovation in services and recommended mix of publicly and privately provided services and greater flexibility in procurement of legal services including by avoiding fee for service in favour of models such as bulk funding or fixed fee - following Bazley report Cabinet made initial decisions to alter legal aid framework by disestablishing the LSA and Legal Aid Review Panel, transferring responsibility for administration of legal aid scheme to Chief Executive of Minister of Justice (Minister) and establishing office of Legal Services Commissioner (Commissioner) with three specific independent functions relating to granting of legal aid - in February 2011 Cabinet approved recommendations of Minister approving expansion of Public Defender Service and new purchase approach establishing fixed fees for cases with standard cost structures, high cost case management for most expensive cases and fee for service payments for remaining cases with prices set to reduce cost per grant - team was then set up comprising LSA and Ministry of Justice staff and private consultancy to develop fixed fee regime for criminal legal aid - team was headed by 2nd respondent W at that time general manager of LSA - in June 2011 Secretary for Justice (Secretary) delegated to W his statutory functions under Legal Services Act 2011 (2011 Act) enacted in Apr 2011 to come into force in Jul 2011 - W was also appointed as first Commissioner in new position established under s70 of the 2011 Act - from coming into force of 2011 Act W’s involvement in developing the regime was in capacity as Acting Deputy Secretary Legal Services of Ministry of Justice (Ministry) - final framework of fixed fee policy was decided by him in that capacity under delegated authority in Dec 2011 and W was also responsible in that role for implementation of framework - development work on framework based on two givens, namely fixed fee system and 10% saving in average cost per grant - new policy came into effect in Mar 2012 and resulted in fixed fee being applied to 99.6% of grants of legal aid in available statistics - the policy was incorporated in the Criminal Fixed Fee and Complex Cases Policy and Procedures promulgated with amendments in Jun 2012 appellant challenged several key decisions involved in new fees framework including delegation of powers by Secretary to W, decision to introduce the fixed fees regime, regime itself and policy for amendment of fixed fee applying to complex cases - in HC, Simon France J dismissed review application inter alia on basis: - (i) it was permissible under s3 of the 2011 Act to have regard to overall cost of scheme and reference to efficiency in s3 purpose properly incorporated considerations of cost; - (ii) policy was not inconsistent with s16(2)(c) and s23 of the 2011 Act; - (iii) initial allocation of case into fixed fee category not incompatible with s16(2) - HCJ however made suggestions for immediate improvement in the fixed fee scheme by inclusion of exceptional circumstances discretion and clearer criteria and guidance concerning requirement that fixed fee be “completely inadequate” for the case - issues on appeal: - (i) was purpose of cost cutting which supported the introduction of the 2011 Act a proper purpose of that Act; - (ii) was the fixed fee policy consistent with the 2011 Act in particular the Commissioner’s independent New Zealand’s legal research tool functions under the Act; - (iii) did the fixed fee policy unreasonably fetter the Commissioner’s discretion under the 2011 Act (by setting too high threshold for rules governing amendment to grant in complex cases); - (iv) was the delegation of the Secretary’s powers under the 2011 Act to W when he was also the Commissioner a valid exercise of the Secretary’s powers of delegation; - (v) was the fixed fee policy unreasonable (by creating unsustainable situation for criminal legal aid lawyers whereby many necessary tasks would be underpaid or not paid for at all); - (vi) was the fixed fee policy unlawful in that the Secretary when developing the policy failed to take into account rights under the New Zealand Bill of Rights Act 1990 (NZBORA); - (vii) was the Secretary’s decision to implement the fixed fee policy unlawful in that it gave effect to the 10% reduction in fees directed by Cabinet - analysis of functions of Secretary and Commissioner under pt3 of 2011 Act - interpretation task summarised in recent CA judgment in SMW Consortium (Golden Bay) v The Chief Executive of the Ministry of Fisheries - leading authority in New Zealand on improper purposes was SC decision in Unison Networks - not necessary to express view concerning Attorney-General v Ireland in light of criticism by Professor Joseph - any revisiting of that decision to be by SC and not necessary for respondents to rely on Ireland appointment of lawyers for standard cases on rotational basis unsuccessfully challenged in Clark v The Registrar of the Manukau District Court - relevant aspects of administrative law principle of dictation well summarised in M Smith, New Zealand Judicial Review Handbook - permissible for Secretary to make suggestions or issue guidelines concerning exercise by Commissioner of s16(2)(c) power independence of Commissioner in deciding individual applications for legal aid was important feature of the 2011 Act emphasised during legislative process - law relating to fettering statutory discretion accurately and well summarised in Taylor, Judicial Review: A New Zealand Perspective - type of fettering alleged by appellant came within Taylor classification of “overriding policy” - CA decision in Archives Continued Page 9 Canterbury tales and Records Association of New Zealand v Blakeley applied - HELD: (1) cost cutting was proper purpose of 2011 Act - “the most effective and efficient delivery of legal services” in s3 purpose encompassed cost effectiveness and cost efficiency - conclusion reinforced by s23(2) and s99(3), reference to “purchase” of high quality legal services in s68(1)(a) and limited taxpayer monies available to fund legal aid services - primary purpose of 2011 Act of promoting access to justice by providing legal services to people of insufficient means could not be achieved unless the costs of legal services were kept within the available funds fixed fee framework was intended to achieve that and was commensurate with primary purpose of the 2011 Act; - (2) Secretary acted unlawfully in implementing fixed fee policy because it was inconsistent with Commissioner’s independent functions under the 2011 Act and administrative law principle of dictation - by developing and implementing the policy the Secretary had stepped over the line from permissible suggestion or guidance to impermissible dictation and dictated to the Commissioner how he was to exercise his independent functions - Secretary did not have power to set maximum grants under s68 function under s68(1)(a) “to establish, maintain and purchase high-quality legal services” intended to be “macro” level function “in accordance with the Act” that is, in light of specific power vested in Commissioner (to be exercised independently) to fix maximum grants in individual cases under s16 and s23 2011 Act could not be sensibly interpreted as empowering both the Secretary and the Commissioner to fix maximum grants; - (3) policy was also unlawful in that it unreasonably fettered Commissioner’s discretions under s16, s23 and s28 - no reason why Commissioner exercising own powers independently could not establish fixed fees for categories of cases providing there were appropriate mechanisms for departure - however current policy combined fixed fee for almost every grant of legal aid with lack of any effective room for Commissioner to amend grant even where Commissioner considered amendment appropriate - test for departure set threshold so high it constituted an unacceptable limit on exercise by Commissioner of discretion; - (4) delegation of Secretary’s powers to W was not an invalid exercise of Secretary’s powers of delegation - 2011 Act contemplated that Commissioner would have dual role necessitating he act both under direction and independently - no logical reason why Secretary could not delegate some of his functions to person appointed Commissioner; - (5) policy not unreasonable in administrative law terms Secretary not free of fiscal constraints in purchase of high quality legal services - ground of challenge involved non justiciable question whether criminal legal aid lawyers were being paid enough for the work done; - (6) HC was correct to hold that Secretary did not fail to take into account NZBORA rights when developing the policy - rights guaranteed in NZBORA were considered when policy was formulated and no evidence of breach of any defendant’s NZBORA rights - any inadequacies in criminal legal aid leading to unfair trial would need to be addressed on case specific basis; (7) Secretary’s decision to implement fixed policy fee was not unlawful because it gave effect to the 10% reduction in provider remuneration - W obliged to implement Cabinet decision by s32 State Sector Act 1988 and s34 Public Finance Act 1989 - HCJ view upheld that Cabinet decision did not cut across an exercise by W of his function under s68(1)(a) - Cabinet decision required W to discharge function within budgetary restraints of new purchase approach involving fixed fees for cases with standard cost structures with prices set to reduce per grant - decision effectively though not explicitly required the Secretary (W) to cut provider remuneration by 10%, did not unlawfully impinge on s68(1)(a) function delegated to W and was properly 9 treated by W as binding on him; - (8) appeal allowed to extent that: - (i) Secretary of Justice acted unlawfully in implementing the fixed fee policy in that it was inconsistent with the Legal Services Commissioner’s independent functions under the 2011 Act; - (ii) the fixed fee policy and procedures was also unlawful in that it unreasonably fettered the discretions imposed in the Commissioner by s16, s23 and s28 of the 2011 Act - declarations accordingly - any decision on further relief reserved for application by way of memorandum - appeal otherwise dismissed - costs of appeal reserved. Comings & Goings Joined firm/organisation Frances Blundell (Anthony Harper), David Dingwall (Wynn Williams Lawyers), Sarah Lester (Chapman Tripp), Clinton Light (Young Hunter), Karen Overend (Duncan Cotterill), Brigette Riddle (Community Law Canterbury), Michael Sleigh (Goodman Tavendale Reid), Letitia Stenberg (Corcoran French), Monique Thomas (Greenwood Roche Chisnall), Stephanie Woods (Duncan Cotterill). New barrister/sole practitioner/firm Hamish Grant Limited, Sole Practitioner, PO Box 36364 Merivale, Christchurch 8146, phone (03) 355-0556, email hamish.grant@hglegal.co.nz. Change of status David Pedley, partner with Adderley Head as from 1.6.13. Merger Mackintosh Bradley & Price have merged with Malley & Co Lawyers as at 1.6.13. Change of details Cuningham Taylor, change of physical address, Level 1, Unit 7, 295 Blenheim Road. All other details remain the same. Erika D Olsen, Barrister, change of postal address, PO Box 271 Timaru 7940, Dean van Mierlo, Barrister, change of postal address, CMB 45 Punakaiki, RD1 Runanga, West Coast 7873. 2 10 Canterbury Canterburytales tales Canterbury Westland Branch/NZLS Education Programme Proudly sponsored by NZLS Continuing Legal Education (CLE Limited) To register and for other information check the CLE website, www.lawyerseducation.co.nz Christchurch July 8-9 — Residential Property Transactions. August 6 — How to Run a District Court Jury Trial. 15 — Employment Law Conference, held by Employment Law Committee, “Sex Drugs and Rock’ n Roll”. Presenters: Chief Judge Colgan and Judge Couch. Watch for flyer. 18-24 — Litigation Skills Programme. September 12 — Consumer Law Reform. 16 — General Tax Update for NonSpecialists. 23 —- When to and how to engage the expert witness. October 15 — The Difficult Property File. Out of Christchurch Negotiation Masterclass, Wellington, 3 July. Legal Executives Conference, Wellington, 19-20 August. Tax Conference, Auckland, 5 September. Introduction to High Court Civil Litigation Skills, Auckland, 14-15 October; Wellington 29-30 October; Auckland 2 25-26 November. Something to say? The Publications Committee is always looking for people to contribute articles to Canterbury Tales. If you have an interest in a specific area of law, want to grumble to the editor, have a photo of interest (past or present) then send them to us or make enquiries at the Canterbury Westland Branch New Zealand Law Society, Unit 1, 8 Homersham Place, Russley, Christchurch. You can also phone on 366-9184 or email Canterbury.westland@lawsociety.org.nz. Marae memories This is the speech given by Allister Davis at the closure of the Marae Court earlier this month. Chief Judge, Judges of the District Court, distinguished guests, trustees of the National Marae, the profession and staff of the Ministry of Justice. I think I was very lucky to make one of the first pleas in mitigation in this wonderful Marae Court and am delighted to have been asked to represent the profession at this, the last sitting at Nga Hau E Wha Marae Court. When the trustees of the National Marae so graciously allowed us to use this special place as a Court, on 18th April 2011, it was a godsend to us all post-earthquake and closure of the Durham Street Courts. Chief Judge, you are the second Chief Judge of the District Court to have sat in this Court. Your predecessor, the late Russell Johnson, sat in this very Court at the swearing in of our own David Ruth as a District Court judge. There would be few courts could boast that! His Honour admired the surroundings at that time, and they haven’t changed significantly. It is with mixed emotion that I stand here delivering this speech. This place has taught us a lot about ourselves, our community and our heritage. It has been challenging at times it has been challenging just to get here on time! But it has always been a pleasure to deliver pleas in mitigation and be surrounded by such a wonderful heritage. The Court may have its detractors, but they are small in number, although very vocal. Generally, however, the Nga Hau E Wha Marae Court has been a success. This Court represents what I personally believe should happen in relation to the delivery of justice, insofar as justice should in fact come to the community, not vice versa. I am a strong proponent of community courts and believe that this Court is proof that they do work. Many a time we struggle to get to Court in town, because no bus money, no petrol money, the car has broken down, my ride is late — all excuses used by lawyers — and sometimes on their behalf of their clients! In the early days, however, particularly, the accused were summoned to appear at 8.30 o’clock and they were banging the door down at 8.30 o’clock — and they still do. On more than one occasion we have seen people turning up in their pyjamas and slippers! Very few warrants are issued as a result of the operation of this Court because the Court has come to the community. Clearance rates I am reliably told were the best in the country with experienced duty solicitors, (boy did I take some hits for that decision) a desire from the profession to get things moving and the odd bit of “earthquake discount” from the bench. All accused treat this Court with respect and dignity — you see little of the now infamous “Bro Swagger” here. That is because the people who appear here know this is a place of some standing. Coincidentally that particular quote “Bro Swagger” propelled me to an overnight media slut.....everybody wanted a piece of me. I personally will have great memories of Nga Hau E Wha Marae District Court from • The Kea campervan as the Judge’s Chambers to the orange roughy caravan. I have it on good authority that few of the judges took to the “orange roughy”. However, one female Family Court Judge loved it as she said it made her feel like J-Lo being escorted to her own caravan. Your secret is safe with me Judge Smith. • The walk of shame once an accused was remanded in custody to a disused paddy wagon in the early days was also a source of much laughter. • This man behind me exposing his bottom to us all caused some consternation. • In the early days the MoJ had one cell phone for all the staff. Very few if any of the computers worked, because the internet was poor, but they did a sterling job from a Portacom which was about the size of most people’s kitchens. • We had portaloos and no flushing toilets. • Small lists of 40 per day grew to the normal size allowing our lawyers to generate income, which was badly needed at this time. • I will always remember the day when it snowed and Kelly Campbell-Meares treated the place like McDonalds takeaways........... we had cars rolling up to her at the gate where the accused received their bail papers for the next appearance. Not unsurprisingly nobody wanted to up size! It is unlikely we will ever see anything like that again. To name but a few things: The Court is a bit like the Phoenix ........it rose from nothing into a fully functioning Court. The Court has worked due to the extraordinary efforts of the likes of Phil Miles, Kelly CampbellMeares, Murray Smith, Charlie Win, Liz Bulger, all of the judges particularly Judge Crosbie and Judge Moran in the early days, the buy-in from the profession, all stakeholders including Police, Community Probation, clicks and all MOJ employees, the community as a whole, particularly the trustees of the National Marae. All have made this Court a singularly and startling success and on behalf of the profession, I thank you. In years to come we will reflect on how this amazing place of respect, heritage and dignity was a godsend post 22 February 2011 but for the moment, let us all reflect and bask in what we have achieved and thank all who have made Nga Hau E Wha Marae a success. May it please the Court. Canterbury tales 11 Situations Vacant Tim Hall Canterbury Tales is the official newsletter of the Canterbury Westland Branch New Zealand Law Society. Publications Committee: Karen Feltham (editor), Brendan Callaghan, Aliza Eveleigh, Zylpha Kovacs and Kate Dougherty. All correspondence and photographs should be forwarded to: The Branch Manager, Canterbury-Westland Branch New Zealand Law Society, Unit 1, 8 Homersham Place, Russley, Christchurch. P. O. Box 565 Christchurch. Phone 358-3147, fax 358-3148. email canterbury-westland@lawsociety.org.nz. Canterbury Tales is published 11 times per year. The deadline for editorial and photographs is the 8th of the month. Disclaimer: Canterbury Tales is published by the Canterbury Westland Branch New Zealand Law Society. The opinions expressed herein may not necessarily be those of the Branch and have not been expressly authorised. The Branch accepts no responsibility whatsoever for any error, omission or statement. 2 12 Canterbury Canterburytales tales A farewell to the Marae By Karen Feltham Many’s the time we moaned about the travel time out to the Marae and scoffed at Legal Services edict as to the 11.4km return travel allowance (fine if the roadworks were not there and the roads were open ) and we whinged about having to race between the prison; the Rangiora District Court; the Ashburton District Court and the Nga Hau E Wha Marae, but the one constant for us was the Marae. As the prison court closed (Thank you, God); Ashburton was superseded by the partial opening of “The Tower “ in Durham Street; and the Rangiora Court House was abruptly closed indefinitely (hmmm, it looked fine when we were in there at 3.30pm for sentencings ) the Marae was there for us and latterly the Rangiora Court. The Marae stood up to the events of 13th June 2011 and 23rd December 2011 and all of the lesser shakes (man did she dance though!). The history of our occupation of the Marae is set out in I.P.P. Al Davis’s speech (see Page 10) that he delivered at the closing of the Marae Court on 31st May last. All of the usual suspects were in attendance but I do not believe that many of us were prepared for the emotional farewell to the Marae that ensued. At a time of complete turmoil in late March 2011, we were granted permission Neville Smith, Sandy Baigent and Richard McGuire. by the Marae Trust Board to use the Marae. We saw the devastation in the eastern suburbs at first hand, often as we were trying to find a way from whatever part of town we worked or lived in and as roads were closed/ chicaned/ or road-coned in a different pattern each day. However, the Marae was a constant. Two years and a couple of months later justice is being served back in our old haunt of Durham Street albeit a haunt which has been partially refurbished and with new protocols and new management still being tested. As was clear from the various speeches made at the formal closing of the Marae Court, people were very aware of the dispensations made to and for us during a time of turmoil and deep uncertainty from both the Trustees and from a suburb that had been deeply scarred by the 22nd February earthquake. A new set of terms emerged for us such as going over to the Christians (the Celebration Church’s café ) for coffee or lunch if you were duty solicitor (disaster struck when they were suddenly closed last Christmas owing to earthquake damage) and portalooing (many of us preferred constipation!). By and large, we will have fond memories of the profession at the Marae; the Bench adaptive to the changes; the politer paler punters who were a bit unnerved Margaret Pitt and Carol Morgan. at the culture on display whereas Maori were respectful of their surroundings including, often, leaving their footwear at the door. Mostly, because we got through. Collections staff. Judge Couch and Andrew Riches.
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