Canterbury tales
Canterbury tales
Canterbury Westland Branch New Zealand Law Society
October 2013, Vol. 19, No. 9
Two new QCs admitted
By Malcolm Wallace
The third president of the USA, Thomas
Jefferson, principal author of The
Declaration of Independence, spokesman
for democracy and the rights of Man,
diplomat, polymath and university founder
once said: For heaven’s sake discard the
monstrous wig which makes the English
judges look like rats peeping through
bunches of oakum.
The donning of wigs (by those who
could lay their hands on one) to
attend the ceremonial admission to
the Inner Bar of our own Philip Hall
and Jonathan Eaton on 19 August
2013 exemplified the origins of this
400-year-old preferment.
Their admission was presided over by the Rt.
Hon. Dame Sian Elias Chief Justice, together
with Hon. Justice William Young, and Hon.
Justices Panckhurst, Kos and Gendall and
Associate Judge Matthews. (See photograph
Page 11).
This year’s appointment round of Queen’s
Counsel was the first since 2007 following
changes to the Lawyers and Conveyancers Act
earlier this year restoring the title of Queen’s
Counsel and restricting appointments to
barristers sole.
In June 2009, Attorney- General Hon
Christopher Finlayson announced that the title
of Queen’s Counsel would be reinstated, and
a bill to implement the restoration was
introduced into Parliament in March 2010. The
bill could not be said to have been passed with
any haste, receiving the Royal Assent on 19
November 2012. Indeed there were some who
expected the next round to be King’s Counsel.
There was a time when limits were placed on
Queen’s Counsel, to preserve some work for
members of the outer bar (such as the writer).
Queen’s Counsel and serjeants were
prohibited, at least from the mid-nineteenth
century, from drafting pleadings alone; a junior
Above, new QCs, Pip Hall and Jonathan
Eaton and, right, being congratulated by
brother silks.
barrister had to be retained. They were not
permitted to appear in court without a junior
barrister, and they had to have chambers in
London, a requirement perhaps easier than
having chambers in post-quake Christchurch.
From the beginning, they were not allowed to
appear against the Crown without a special
license, but this was generally given as a
formality. These restrictions made the taking of
“silk” something of a professional risk, because
the appointment abolished at a stroke some
of the staple work of the junior barrister; they
made the use of leading counsel more
expensive, and therefore ensured that they
were retained only in more important cases,
and they protected the work of the junior bar.
It is unlikely that either of Pip or Jonathan would
have needed Silk to claim the attention of the
Court of Elizabeth I in Westminster Hall.
But as Dame Sian Elias told us: It is what is
made of the patent that counts. A former Chief
Justice once said that the place at the Inner
Bar is reserved for those who are upright,
learned and brave.
Queen’s Counsel are expected to justify their
appointments by demonstrating those qualities
in all their work. We are confident that those
admitted today will repay this trust, to the
benefit of the New Zealand legal system.
Her Honour recognised in her address that both
Pip and Jonathan have displayed the
independence, hard work and technical skills
worthy of the call to Inner Bar. Likewise their
preparedness to take on the difficult and
unpopular cases that win counsel little praise
outside of the profession.
Their ability and independence is illustrated by
them both being regularly appointed to
represent members of the Police facing
disciplinary or criminal prosecution.
One notable omission from Her Honour’s
address was that Jonathan worked for Wood
Marshall while Pip was a partner of that firm.
Perhaps that would generate a good question
for Judge Neave at a future quiz evening.
It was delightful to see the pride and joy on
the faces of the family and friends of Pip and
Jonathan sitting in the jury box during the
ceremony. No doubt none of them will pass
the scrutiny of any future jury selection.
Dame Sian Elias also took the opportunity to
praise the Christchurch profession as a whole
that, she said, demonstrated the finest
standards of the profession in helping those in
need of help in the terrible circumstances we
have all faced since the earthquakes.
The great ceremony drew to a close and all
over town wigs were carefully stored or
relegated to their dusty drawer. They will come
out again though, most likely at another type
of ceremony, one to welcome the newest
members of our profession.
Yes, Mr Jefferson, as practitioners are admitted,
advance, are elevated, and ultimately retire to
the eternal chamber, those “monstrous wigs”
link every practitioner to the origins of our great
legal tradition.
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.
Send your entry to the Canterbury Westland
Branch New Zealand Law Society, P.O. Box 565,
Christchurch. All entries must be received by
November 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 Roger Sandford..
“Don’t worry girls, they are repealing
Section 108 Employment Relations Act.”
President’s Column
I have just returned from a
weeklong hearing in the High Court
in Wellington.
So, while I normally use this column to tell the
profession about developments happening
locally or nationally which may affect them,
today my head is still so immersed in my case
that my colum¡n will be a self-indulgent
reflection on that experience.
As any lawyer who has been involved in a
witness action of any duration will know, it is a
gruelling exercise. For some time leading up
to it, and certainly every day of the case, it
dominates your thinking to the exclusion of
everything else.
In reflecting on it during an unscheduled hiatus
between the conclusion of evidence on Friday
and the presentation of closing submissions,
caused by gale force winds in Wellington, the
following questions come to mind:
* Why is that no matter how much work you
do on a case beforehand, you only really realise
what the case is all about on the third day of
hearing?
* Why is that your best ideas for crossexamination strike you at 2am in the morning
when you either have to get up to write them
down, or risk losing them before daybreak?
* Why is that the judge always has at least one
thought on the case that had never occurred
to you?
* Why is that when your shakiest witnesses
hold up brilliantly, the most innocuous seeming
ones turn out to have the potential to derail
your case?
As litigators will know, there is almost no
experience quite like the total immersion you
experience during a hearing. Your existence
shrinks to a world populated by the judge, Court
staff, opposing counsel, and the regular
attendees from each party involved.
For a brief portion in your life you create your
own world of in-jokes and black humour to
defuse the tension of what otherwise is at stake
between the parties. Having parties and counsel
who retain that clear divide between the
arguments in the case, and the professional
courtesy and camaraderie beyond (as I have
had in this case), makes it all bearable.
And of course, at the end, like any contest, there
is the relief that it is over, the satisfaction of
reflecting on what was done well, and the
niggling regrets over what could have been
done better.
However, unlike a normal contest, the victor is
not announced on the day. I know that by the
time the judgment comes, my world will have
moved on. I will be immersed in other files
and thinking of other issues. Win or lose, it will
be a distraction by that stage to return to it, for
the client’s sake.
If it is a win, I will, of course, be happy to take
the credit. If it is a loss, no doubt the client
and I will find some reason, beyond our control,
for the judgment being so aberrant.
In the meantime, while I await that outcome,
instead of the rest I was dreaming of, I will be
catching up on all the work I put on hold for
the past two weeks....!
Rachel Dunningham
Canterbury tales
3
Lawyers and their Super
By Rohan Wills
When I was in Auckland for a
yachting contest in the 1970s I
noticed a beautiful large launch with
the name “Risk and Reward”. It was
owned by a well-known Auckland
professional with family money.
I had a long chat to him regarding the name
and he told me unapologetically how it had
happened. It was at that point I recalled the
Parable of the Talents, Matthew 25:14:30,
which was regularly read at our School
Assembly. For those who don’t possess a Bible
you can Google it!
It is self-explanatory but the message in a
nutshell is use what you have and capitalise
on your strengths to increase your wellbeing.
Lawyers are professionals who by definition are
well educated, enjoy considerable work
autonomy and are commonly engaged in
intellectually challenging work.
It seems however that whilst good lawyers can
give excellent results to clients they seem to
do so at the expense of themselves. What I
mean by that is that it is assumed by clients
that with the fees charged there is more than
enough disposable income to create a
substantial retirement fund for the practitioner.
In reality this is far from the case.
By the time the house in Riccarton is paid off
and the children have been educated there is
little capital left to retire on. Kiwisaver is a start
in the right direction but most financial planners
agree that you need at least $1000 per week
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
[email protected].
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.
disposable income additional to Kiwisaver to
maintain a reasonable retirement lifestyle.
The Government realised this many years ago
for the Judiciary with the generous retirement
superannuation they receive which
compensates them for earning less than the
equivalent person in the private sector. The
many and various retirement business’s run by
prominent barristers have featured all too often
in the Courts for various reasons. So unless
you are a high profile QC or apply to become
a judge, what are your options to generate
additional income to support your retirement
goals?
Prior to law firms being able to incorporate, it
was up to individual partners to do what they
wish outside the partnership. This caused a lot
of friction between partners and affected
workflow and profitability. There were also
different degrees of risk depending upon the
personalities of the different partners.
With the right to incorporate there is no reason
a firm cannot capitalise its goodwill, bring in
work in progress and debtors and end up with
a strong balance sheet which would allow some
leverage to do other things that generate
income and capital.
Historically some of the large legal firms with
advice from their accountants entered into
dicey deals with filmmakers and forests to
produce tax losses. These were a disaster as
everybody was out of their depth with no
knowledge of what they were investing in and
no skill to run them or exit from them. There
was to be tax losses and large capital gain. Too
good to be true. No wonder they were all struck
down by the Commissioner. Now that the tax
rates are the lowest in years it is important to
generate income and some capital growth
outside the firm to provide for retirement
options for the directors.
So what about the Risk and Reward? Lawyers,
are by definition, adverse to risk but there are
investments which can be made which are
calculated and whilst carry some risk do carry
some reward. Let me give you some examples
which are quite recent.
Prior to the earthquakes a firm was looking at
purchasing its own premises as its rent roll was
going to increase. A suitable building was found
and purchased using the strength of the firm’s
balance sheet and showing the previous rent
was more that the present mortgage.
After moving, the earthquake happened and
betterment from the repair was that of the firm
and not the landlord. It now has equity in the
building of over a million dollars after the
upgrade (they were insurance savvy) and their
rent/mortgage is substantially less than their
previous rent.
Another example is a firm asked my advice on
what to do with the excess from its reduced
rent commitment as a result of moving to
smaller, less suitable premises as a result of
the earthquake.
I suggested they purchase five houses (there
were five directors) as there was going to be a
housing shortage and it would be a good shortterm medium for investment. It took some
persuading but I said they all knew real estate
and should be comfortable about buying and
managing such property.
They are now in the position that the rent from
the properties is reducing debt weekly and each
property has increased in value by over
$100,000. They are over half a million better
off and their office rent is more than being
covered by the rents received.
I have other examples but time is too short.
I would be happy to talk to firms for no charge
over morning tea to see how you can get ahead
using existing assets to help fund retirement
as I can assure you that if you are in a position
to retire early then there is a life after law and it
is pretty dam good.
I can be contacted by email, [email protected].
24
Canterbury
Canterburytales
tales
Untied from the Timesheet No.2
Challenges within law firms
By Andrew Nuttall
Partner, Bradley Nuttall Ltd
Last month I wrote about the
research I had undertaken during
the year in interviewing a number
of practitioners, partners and others
who work closely with the legal
fraternity.l
I spoke about the challenges of attraction and
retention of talent, the ageing population, the
pending retirement of many baby boomer
lawyers and the feminisation of the legal
fraternity. This week I am going to discuss
additional challenges mentioned during my
interviews.
Succession
A large proportion of Christchurch’s Law
Partners are males aged 50 and above. No
doubt a number will be planning to retire over
the next 5-10 years, which will provide
opportunities for younger, motivated
practitioners.
While there is a need for good succession
planning, a number of my respondents
indicated that a smooth succession could be
stymied by senior partners being overly
protective of their client bases. Lawyers have
been trained to be very good lawyers and take
a real pride in providing good legal advice but
there can be a tendency to retain control and
not delegate effectively and pass work on.
More than one senior partner emphasised that
it was so very important to plan ahead twothree years to ensure a smooth and successful
transition and work with the client and the
younger lawyer to maintain relationships.
Firm valuations
A number of Christchurch law firms are more
than 100 years old which is no doubt the result
of effective planning, hard work, good advice
and maintenance of client relationships and
trust. Retaining and building expertise within
the firm is on going and requires constant
attention. One of the most frequently
mentioned challenges centred around the
firm’s equity.
Debate focuses on what contributions new
partners are expected to make and what
payouts do retiring partners fairly deserve.
There are a number of different valuation
models within Christchurch and firms seem to
be “tight lipped” about how they confront and
solve succession-planning issues.
Some firms have a policy of ‘no money in, no
money out’ while others expect and require
more substantial contributions of equity from
partners. For those partnerships requiring a
contribution of capital a “lockstep” process is
frequently used. Is there room for partners and
managers within Christchurch and New Zealand
to share ideas more openly to address this
major challenge? One firm reported seeking
advice from off shore consultants.
Client expectations
Most respondents reported that today’s clients
had greater expectations than previously and
expect more, sooner. Lawyers felt they are now
“subject to greater scrutiny by even long term
clients”.
While relationships are important and will always
be a key factor in law, an increased tendency
for the most valuable clients to shop around
was reported. The shopping around was not
necessarily price sensitive but clients were more
motivated to ensure they had the best person
to advise them and help them solve their
problems.
Some respondents suggested that this demand
for expertise is driving merger and acquisition
activity and the growth of larger firms. One
respondent said, “law firms are just like
successful cricket teams that require specialists
with one or two all-rounders.”
The was a general consensus that firms with a
large proportion of ‘all-rounders’ or ‘generalists’
are under pressure compared with other firms
and practitioners who have established specific
areas of expertise and niches.
Technology
New technology developments and
enhancements will enable law firms to continue
to grow and prosper, however, resources need
to be committed to this area. This can be a
challenge as many practitioners aged more than
45 years are not necessarily strong in
technology.
Respondents indicated that in recent years
some firms have invested heavily in systems
and technology and the benefits of this is now
apparent. However, more will be required in
the future. Databases need to be constantly
groomed and upgrades to Trust Account
Management software and communication
technology is on going.
Technology has created a greater emphasis on
nationwide interaction and enabled lawyers to
work remotely but at the same time has made
it easier for competitors to enter the Canterbury
market.
High stress levels
A number of respondents indicated there were
frequently high levels of stress within law firms.
“It’s a competitive environment with capable,
experienced and highly trained people but high
performance environments can also take their
toll,” said one. There is a constant need to bill
as well as find new clients and manage the firm.
Younger partners can be saddled with the
pressures of debts and the need to “keep up
with the Jones’s.” In addition highly motivated
people are inclined to impose high expectations
on themselves as well as others close to them,
which can add pressure, stress and anxiety.
There is a need to ensure stress levels are
managed both at a personal level and as an
organisation to ensure the firm is an employer
of choice and the environment enables all stake
holders to meet personal, professional and
financial goals.
Even though there is stress one partner stated
that the “legal profession” is a great cash model
and although costs, including leases, have
increased law firm costs still represent a
relatively low percentage of turnover when
compared to other businesses.
He went on to say that there is now a greater
need for lawyers to think like other businesses.
This is easier said than done as law firms are
dominated, as they should be, by practitioners
whose main driver will be to ensure they are
good lawyers in the first instance and provide
high quality, professional advice.
They are relationship people but successful
businesses also require excellent management
and some entrepreneurial flair. Michael Gerber’s
book, The ‘E-myth Revisited’ emphasises that
every business requires three personalities to
be successful — the technician, (i.e. the
practitioner), the manager and the
entrepreneur.
Many of the firms who reported improved
profitability and office collegiality have allocated
time, energy and resources to business
planning and management. A number have
employed professional managers and sought
external advice from HR and technology
consultants as well as engaging experienced
managers and directors.
I hope this article will be helpful and stimulate
discussion and planning. Please note that the
above is not necessarily my opinion but is a
collation of views expressed by a number of
people I have interviewed.
Next month I will discuss the financial
challenges that practitioners are facing.
Canterbury tales
5
Making a difference
Dr Chris Gallavin
On taking up the position of Dean
and Head of Law at Canterbury in
2012 it was my desire to change
the face of legal education in New
Zealand.
There have been many innovations in
education and the law and an exponential rise
in need within society and the legal profession
that have all gone unaddressed by New
Zealand’s universities.
Focusing on the legal profession in particular,
this inability to adapt the education of law
students has, I believe, resulted in the
graduation of students who are not as well
equipped to face the practice of law as those
in other countries.
Looking more broadly, the inability to adapt also
has an effect upon civil society and the quality
of the contribution our graduates can make to
the big issues faced by our communities, our
country and our world.
Big problems require big thinking and big
thinking does not occur by accident or as a
result of narrow education. So, whilst parts of
the world have moved with the times,
developments in legal education along with
developments in the law and our communities
have largely passed us by.
The New Zealand law schools in particular have
simply not kept pace with many of these
developments nor stayed attuned to the
changing terrain. We have, to a large extent,
remained flat footed as the world has changed
around us.
I most certainly do not advocate throwing
everything out and starting again. Canterbury
in particular is known for its fundamental
grounding in the core aspects of legal analysis
and we have no intention of changing that.
However, for our graduates to cope in a more
nuanced and complex world they must be
equipped with the skills and attributes most
suited to the challenges they will likely face.
That not only applies to the law and the legal
profession, but is also applicable to our
graduates as global citizens irrespective of their
chosen profession[s].
Whilst the need for change has been more or
less recognised for quite some time the
motivation to develop has been lacking. Well,
not in post-quake Canterbury. In 2010 the world
changed for our community and the status quo
was largely wiped away over a rocky 12-month
period.
What followed for the School of Law, as with
most of our community, was a period of
introspection in which we examined who we
were, what we stood for, and how we went
about our business of research and teaching.
Dr Chris Gallavin and his preferred mode of transport.
Although we would not want to relive anything
like the troubles we faced over that time, in
hindsight the opportunity to reinvent ourselves
was hugely invigorating. Inspired by the lead
of our students — those law students who
established the Student Volunteer Army — we
recognised that our community could not afford
for us to be the aloof ivory tower that we had
become. When I refer to ‘our community’ I not
only mean the legal profession but also civil
society.
We also recognised that the issues faced by
the Canterbury region in particular were and
would continue to be the most challenging but
most exciting that any society in New Zealand,
if not the developed world, could possibly face.
Calls upon the School of Law for help and
assistance started to flood in — Phillipstown
School, EQC issues, calls for greater
collaboration with Community Law, and Urban
Maori development with the placing of a District
Court on the Marae at Aranui were all issues
that needed the enthusiasm, intelligence and
dedication of our students — students keen to
make a difference, keen to be a part of
something bigger than themselves.
With all this before us we began to look at ways
in which we could integrate practical projects
into the training of lawyers.
At a function for Community Law Canterbury
hosted by the School of Law the Vice Chancellor
presented me with a simple but very difficult
question to answer; “Why is the notion of
community law not integrated into the training
of lawyers the way community health is
integrated into the training of Doctors?” — “Yes”
I thought, “why not indeed”.
And so at Canterbury we have launched the
first clinical legal programme in New Zealand
where students will be expected to
complement their dedicated book learning with
getting their hands dirty with real issues
involving real people.
Continued Page 11
26
Canterbury
Canterburytales
tales
‘The Kilichallenge’
By Serina Bailey
In his book “The Snows of
Kilimanjaro”, Ernest Hemingway
described the mountain as “wide
as all the world, great, high and
unbelievably white in the sun”.
Hemingway might be mortified to know that
since 1912 the Kilimanjaro glaciers have lost
85% of their ice due to the warming of the
Indian Ocean and the deforestation of the lower
slopes. Apparently the ice will continue to melt
over the next 30 years so, if you want to view
what’s left of these stunning glaciers, now is
the time to go.
As the biggest freestanding mountain in the
world, sitting in its unique position on the
equator, it richly deserves its other name - the
Roof of Africa.
None of these thoughts were running through
my head as we, myself and Alex Millen, neared
the summit in pitch blackness, the temperature
having plummeted to almost -20 degrees,
barely able to breath at almost 6000 metres,
head aching. It was exceptionally uncomfortable
and unpleasant and, at that moment, it seemed
a stupid thing to do especially as it was an
expensive and time-consuming exercise.
Reaching that point started several months
earlier when Alex casually mentioned she was
going to London via Africa to climb the
mountain and to also check out the Serengeti
wildlife and dazzling beaches of Zanzibar. After
a minute or 2 thinking about this, I was in - our
adventure was born.
The structure of Mt Kilimanjaro makes it
possible to trek to the summit without technical
climbing experience and therefore is a
manageable challenge to the likes of Alex and
myself who are neither mountain climbers nor
used to altitude.
Even so, at 5895 metres it is a serious
undertaking with the freezing temperatures and
altitude difficulties taking their toll. Many do not
make the summit and every year there are
deaths on the mountain.
The official statistics reveal that only 41% of
climbers reach the Uhuru Summit, the majority
turning around during the final ascent,
sometimes within a few hundred metres of
the top. Further, the incidence of Acute
Mountain Sickness is widely deemed to be
unacceptably high.
We thought it was cold when we left
Christchurch one chilly July afternoon, having
no appreciation how bitterly frozen we would
feel a few days later when we finally reached
the top of the mountain. Fortunately we had
filled our packs with enough top quality
Kathmandu gear so the cold, at least, was
manageable.
We also intended to take our training seriously
enough that we would refrain from drinking
alcohol during the 38 hour long haul trip ahead
of us to reach the African town of Moshi — our
kick off point for the mountain.
That intention lasted for the first hour of the
first flight and by the time we reached Dubai,
many hours later, it seemed appropriate to have
G & T’s for breakfast. Tonic, apparently, is a good
mosquito repellent and although we were still
a long way from Moshi it seemed to us a good
idea to help the body prepare for those pesky
creatures.
Our last flight from Nairobi to the Mt Kilimanjaro
airport (Tanzania) was short but spectacular.
Within a half hour of take off from Nairobi we
felt the tangible excitement of seeing the
mountain for the first time as our aircraft
seemed to fly within touching point of the very
glaciers we would soon be walking beside. It
looked so big!
A late check in to our Moshi Hotel did not allow
us to see anything of the town as we drove
through the dark. The pot holed, uneven, dirt
roads reminded us of Christchurch and we
assured our driver we did not mind being
bounced around.
We had an opportunity the following day to
visit Moshi Town with an enthusiastic young
African named Moses who was keen to show
us all the sights including the town’s water
source, the fruit and vegetable markets, the bus
station (in case we needed to go somewhere),
the Masai medicinal stalls, the railway lines
going nowhere, the schools, the motor bike
wash shops, the orphanage and, importantly,
the best place to get coffee (Coffee Union for
those who know Moshi).
It was an entertaining and interesting day. I was
fascinated that the big name player in the town
is Coca Cola — this company sponsors
everything from the schools to the post offices,
from local businesses to the Sikh Club. The
distinctive red signage appears everywhere.
When our booking was made in Christchurch
we understood we would be trekking with a
Serina and Alex Millen, with their guides, express their joy at reaching the top of Mt
Kilimanjaro.
Canterbury tales
7
The morning sun on one of the glaciers at the top of the
mountain.
wonderful array of food in the candle lit mess
The crew which trekked up the mountain. Serina and Alex are at either end.
tent. Alex and I would look at each other over
small group of climbers, possibly up to 10
the final ascent to the summit.
the very solid, chunky candles and think how
people.
Our guides, of course, were the decision makers
romantic it all was — if only it wasn’t each other
When we had our “group” meeting the day
and determined what time we left, when we
we were looking at!
after our arrival, we were told we were the only
stopped for breaks and whether we went for a
The food was exceptional. Every day we were
two in this particular group. Initially we felt
further acclimatisation walk after reaching our
presented with fresh soups (our favourite was
socially deprived but, ultimately, it turned out
camp for the night (this happens as one gets
fresh, hot cucumber soup, a taste sensation),
to be an exceptional experience for us - we
further up and breathing becomes noticeably
fruit, sandwiches — the porters carried loaves
were spoilt for attention. We had a guide, an
more difficult).
of bread tied to the outside of their loads so as
assistant guide, a cook, a “waiter” (more about
Even so, at this point I must put in a special
not to squash the bread) — chicken, vegetables,
Frankie later — every girl should have one!)
word for Frankie. His smiling face would be
avocados, pop corn and chocolate biscuits.
and as many porters as necessary to carry tents,
the first thing we saw at 6am every morning
Frankie would sometimes appear with a small
cooking gear, chairs, food and water.
after we struggled out of our sleeping bags (the
bowl of hot water — this was the only washing
Alex and I felt we could have been setting off
nights are cold, long and uncomfortable),
water available for six days and by the end of
to make a famous discovery with our attentive
unzipped the tent flap and there he was —
day one, everything was infused with dust.
and dedicated crew.
holding a flask of hot water with our mugs and
Within minutes of washing your hands, they
The mountain lies in the heart of the Kilimanjaro
all the necessary instant packets to make that
were dirty again as everything you touched was
National Park. Most trips to the summit and
essential first cup of coffee. We simply did not
so dusty — tents, packs, jackets, boots.
back take five or six days. All trekking must be
function until we poured caffeine down our
We spent many hours talking to our guides as
done with a licensed guide with their teams of
throats.
we trekked forever upwards towards the
porters and there are several different routes
A half hour later his gentle voice would tell us
summit. Every topic from education to job
up the mountain.
breakfast was ready and the mess tent was set
opportunities, from crime to corruption, from
We chose a lesser used route on the northern
for two with an array of food to energise us for
agriculture to industry, from family life to religion
side of the mountain near the Kenyan border
the coming day.
was discussed.
Continued Page 10
as we did not want to use the more popular
Every night Frankie waited on us with another
“coca cola” routes with the larger numbers of
trekkers and busier camps.
We left our Moshi hotel in a mini van with all
our crew on board. The trip to the start of our
trek took most of the morning with a stop at
Marangu Village to complete the paper work.
While waiting here our guides took us to a local
eating spot to enjoy greasy goat broth with
cooked bananas — a “treat” which Alex and I
declined but we did drink the milk tea (mostly
milk) as it seemed a little early to ask for a
beer.
As we continued winding our way northwards,
around the base of the national park, we passed
through many villages with their many
vegetable and goat markets, a funeral
procession with a brass band playing from the
back of a couple of moving utes (indicating
someone important), oxen pulling laden carts
and grubby children playing on the edges of
the dirt roads, amusing themselves with
anything to be found.
Starting in the Rongai pine forest we steadily
made our way up to our first camp, pleased at
last to be making a start. During the next three
days we quickly fell into a routine that was only
to vary on our fourth day immediately before
28
Canterbury
Canterburytales
tales
Nominee company lending
Times they are a changing
By Philip Strang
Readers of The Press may have
noted the article (A13 2nd
October) titled ‘Get creative to beat
the rules’.
The article discussed “10 creative strategies for
thumbing your nose at the Reserve bank’s new
LVR rules and getting your foot on the property
ladder”.
Of interest to the writer (and perhaps
Canterbury Tales readers) is the 7th ‘creative
strategy “Call your Lawyer”. While the Society
would always advocate the seeking of advice
that strategy cites the writer Olly Newland’s
suggestion to seek funding through Lawyers’
Nominee companies.
There are, however, some practical difficulties
with this strategy; the foremost being that if a
loan application cannot meet the Reserve
bank’s 80% LVR it will surely fail the Nominee
company’s 67% requirements; i.e., the two
thirds ‘rule’ of 67%.
The Law Society wrote to all law firms that are
active in lending activities on 14 May and 12
July this year regarding the transitioning of
Lawyers lending from the purview of the Society
to the Financial Markets Conduct legislation and
the FMA. Such transitioning is to occur by 30th
September 2016.
It is reasonable to project that compliance costs
for law firms engaging in lending activities may
rise in the new regime. I say this as currently
there are no additional external compliance
costs if a law firm wishes to engage in lending,
nor cost savings should they cease.
It is my personal view that few firms will
transition their lending to the new regime and
most firms will operate a ‘sinking lid’ policy i.e.,
not renew existing loans as they expire.
It is also my personal view that there are two
distinct ‘camps’ of Lawyers’ lending — those
who are diligent and well organised and those
who are not. Those of the latter camp should
be aware that non-compliance with Nominee
Company rules results in a steady stream of
referrals to the Standards Committees.
Unless a firm has made a considered and
researched decision to continue lending
beyond 2016; and is committing resources to
such, it would be unlikely that they should avail
a borrower of strategy #7.
Canterbury tales
Case summaries (67)
Terranova Homes and Care Ltd v
Faitala — [2013] NZCA 435 —
Randerson, Harrison & Miller JJ —
19 September 2013.
EMPLOYMENT LAW - MINIMUM
WAGE — EMPLOYER KIWISAVER
CONTRIBUTIONS
Unsuccessful appeal from Employment Court
(EC) decision - full bench of the EC had held
that employer was not entitled to deduct
compulsory employer contributions payable
under KiwiSaver scheme from wage of
employee paid at rate of statutory minimum
wage - cross appeal by respondents relating to
construction of a provision in the employees’
contracts - principal appeal concerned
relationship between s6 Minimum Wage Act
1983 (the Act) and s101B Kiwisaver Act 2006
- appellant employed respondent employees
as caregivers at rest home in Wellington employment relationship was governed by
individual employment agreement - gross wage
was $13.50 per hour - employees were
members of KiwiSaver scheme - agreement
provided that employees’ remuneration was
inclusive of any KiwiSaver compulsory employer
contributions which appellant deducted from
gross wage before tax - employees had issued
a proceeding against Terranova before the
Employment Relations Authority (Authority) in
which they claimed arrears of wages
represented by Terranova’s deduction of its
statutory contribution from their wages Authority removed the proceeding to EC for
determination - EC held appellant in breach of
s6 of the Act and that respondents were being
paid at rate less than statutorily prescribed
minimum wage - in particular EC found: - (i)
purpose of the Act was to ensure that workers
received base wage for their work to enable
them to meet daily living expenses for
themselves and their family - minimum wage
did not have built in component of saving for
retirement; - (ii) allowable deductions from
wages such as liable parent contributions and
PAYE represented obligations owed by
employee personally - in contrast payment of
compulsory employer contribution under the
Kiwisaver Act 2006 was employer’s not
employee’s contribution and did not constitute
payment by employer for work performed by
employee for purposes of the Act; - (iii) s101B
of the Kiwisaver Act 2006 was subject to s6 of
the Act - where employee paid the minimum
wage, employer was obliged to pay the 2%
contribution in addition to minimum wage or
(if the parties agreed) the gross wage must
amount to the minimum wage plus 2% appeal on grounds that EC erred in: (a)
concluding that compulsory employer
contributions were not wages received by
employees for their work within meaning of
s6; (b) in rejecting appellant’s argument that
s6 could not limit Parliament’s authority to enact
later contrary legislation (s101B); - (c) relevant
provisions of both Acts when read together
entitled appellant to make deductions - HELD:
(1) EC decision upheld: - EC did not err in
concluding that compulsory employer
contributions were not wages received by
employees for work within meaning of s6 payment of contribution was not “payments
for his [or her] work” but payment of employer’s
obligation as required by law - money paid did
not belong to employee but to KiwiSaver
scheme and employee’s rights ultimately
depended on terms and conditions of
governing instrument - relationship between
hours worked and amount of employer’s
contribution was a means of quantifying
employer’s obligation and did not satisfy
separate concept of payment for work; doctrine
9
New Zealand’s legal research tool
of implied repeal did not apply given provisions
able to be read consistently on basis that s101B
was subject to provisions of the Act applicable
to minimum waged workers; s6 and s101B
read together did not authorise deductions from
wages - introductory words of s6 prohibited
employment agreements affecting substance
of workers entitlement to prescribed minimum
wage - s6 of central importance in setting
minimum statutory threshold consistent with
New Zealand’s international obligations that
purpose of minimum wage legislation was that
minimum wages should not be subject to
abatement by individual agreement; - (2) as
Terranova’s appeal dismissed it was
unnecessary to determine respondents’ crossappeal - appeals dismissed - interests of justice
served if Terranova ordered to pay 75 per cent
of costs for a standard appeal on a band A
basis and usual disbursements.
Comings & Goings
Joined firm/organisation
Moved
Rebecca Ardagh (Lane Neave), Jeremy BellConnell (Wynn Williams Lawyers), Gregory
Belton-Brown (Lane Neave), Miriam Black
(Papprills), Monique Bond (IC Frith &
Associates), Jennifer Carr (Duncan Cotterill),
Malaika Cockerell (Duncan Cotterill), Colenna
Collins (Saunders & Co), Adam Cox (Chapman
Tripp), Hamish Davies (Corcoran French),
Catrina Hunter (Weston Ward & Lascelles),
Joanna Ling (Cherry Kannangara Thomson),
Catherine McCallum (Goodman Tavendale
Reid), Jonathan Nicolle (Anderson Lloyd),
Wathsala Ponnamperuma (Cherry Kannangara
Thomson), Katherine Rouch (Chapman Tripp),
Andrew Sclater (Saunders Robinson Brown),
Ann Skelton (Markit Law), Kimberlee Smith
(Cavell Leitch), Tanya Speight (Wynn Williams
Lawyers), Dhamendra Unka (Taylor Shaw),
Kelsey Watson (Connors Legal), Penelope Wells
(Anthony Harper), Andreea Wilson (Insolvency
Management).
John Goddard (Anthony Harper to Canterbury
Community Law), Alanya Limmer (Solid Energy
NZ Ltd to Lane Neave), Richard McLoughlin
(Trustee Executors Ltd to Anchorage Trustee
Services Limited), Sarah Manning (Simpson
Grierson to Cavell Leitch), Andrew Orme (The
Property Group Limited to Anderson Lloyd),
Catherine Schache (Duncan Cotterill to ARANZ
Geo Limited).
Change of details
Macalister Todd Phillips, Lyttelton Branch, 50
London Street, Lyttelton.
Adrienne Edwards Barrister, 92 Fernside Road,
RD 1 Kaiapoi 7691.
Charlene Benson, 8 Shepherd Avenue, West
Melton, Christchurch 7618.
Commerce Commission, PO Box 9237 Tower
Junction, Christchurch 8149.
Young Hunter, Level 2, Young Hunter House,
134 Victoria Street, Christchurch 8013.
2
10
Canterbury
Canterburytales
tales
‘The Kilichallenge’
Continued from Page 7
The days were sunny and clear, the nights long
and cold. We trekked through the different
zones and found that our breathing and
sleeping had become affected from about
4000 metres. On reaching base camp Kibo
(almost 5000 metres), the final camp before
the final ascent, we noticed real difficulty in
exerting ourselves.
We arrived here early afternoon and the first
thing we saw were two women being almost
dragged off the mountain between guides —
seriously affected by their final ascent. One was
later taken by stretcher from the camp unable
to stand. A sobering sight.
However, it was exciting being at base camp
as we tried to rest for the night-time ascent to
come. At 10pm we were given hot tea and
biscuits (a final supper perhaps!) before leaving
camp at 11pm.
We walked by the light of our headlamps as
we zigzagged our way up the scree slopes. It
felt bitterly cold but the temperature was to
plummet many degrees more by 3am. Despite
the many layers of good thermals, jackets,
gloves and hats the cold still seemed to seep
into our wary bones. We saw several climbers
heading back down the mountain before
reaching half way, obviously unprepared for the
bitter cold.
Half way up, our heads started to ache. Our
noses ran and the snot froze on our face. Our
guides ask us not to take any pain relief — they
wanted to know how we were coping,
unmedicated, with the altitude.
We passed a Japanese woman, on her knees
vomiting. I asked Alex where did this crazy idea
come from? Our pace was so slow I believed it
would take a week to get there. I played
mindless counting games in my head to pass
the time and overcome the slow motion like
feeling of the climb. We stopped for a drink of
honey sweetened tea somewhere up the
mountain and it seemed so difficult to work
out how to hold the cup.
The scree slopes become rocky, with goodsized boulders to scramble over. I could not
look up — the headlamps shining in front of
us seemed so far away.
I lost all sense of time and was amazed when
we suddenly reached Gillmans Point from
where the climb tracks around the edge of the
volcanic crater. We were now at 5695 metres
— only 200 metres higher to reach the ultimate
point. We felt incredibly emotional. We cried.
We were going to get there, a significant
achievement for both of us.
It was still pitch black and very cold but within
an hour the sky began to lighten and we felt
the excitement of the pending sunrise. By now
we had reached Stella Point and waited here
to take photos of the beautiful sunrise as the
ice reflected the golden yellow and orange
hues of the sun casting its spectacular light
onto the impressive glaciers. We felt
overwhelmed. It was stunning.
Within another half hour we reached the final
point — Uhuru, the top of the mountain at
5895 metres. We were standing on the Roof
of Africa.
All the difficulties of the preceding 8 hours or
so escaped us and we continued to take far
too many photos (camera batteries having
been kept close to our hearts to keep from
freezing). Other people grabbed our cameras
so we could have photos taken together and
with our guides. Everyone was in amazing
spirits but within a very short time we had to
start the descent.
We retraced our steps to Stella and Gillman
Points, scrambled over the large boulders and
reached the scree slopes once more. It looked
a long way down to base camp and suddenly
we felt very tired.
The thought of zigzagging back down the long
slopes didn’t appeal — scree surfing seemed
a much better option. This saved time but
raised a dust storm and by the time we reached
the camp, dust had permeated every pore. We
were beyond filthy!
At base camp we were allowed two hours to
Base Camp Kibo..........from where Serina’s group started its final ascent.
rest before setting off to lower slopes.
Our exhilaration competed with tiredness but
we readily trekked back to lower levels and
easier breathing. We stopped at 3700 metres,
which seemed relatively normal.
To say we slept well that night would be an
understatement. It was the first night on the
mountain I didn’t feel cold or uncomfortable. I
just slept.
The following day was our walk out of the
national park. The scree slopes had transformed
from scrub to bush to lush, green, monkey filled
forests. It seemed the monkeys lay in wait for
the trekkers and laughed at us as we walked
by.
Back in Moshi by late afternoon we had two
things on our minds — a cold beer and a hot
shower. The beer was easy. We sat in our hotel
courtyard and ordered. The Kilimanjaro brew
slid down our dust lined throats feeling
sensational. We then raced up to our room to
be first in the shower but.....no hot water!
We were leaving for Arusha the next morning
(the first step on our way to the Serengetti) so
needed to get ourselves and some of our
clothes clean. It was a matter of grin and bear
it as the cold, blackened water swirled down
the plughole.
Our guides returned to pick us up much later
in the evening to take us into Moshi to
celebrate. It turned into an eventful evening
with colourful negotiations over alcohol bills and
taxi fares. It ended when I was offered what I
thought was a drink of cognac but turned out
to be Konyaki — the local fire water, a truly gut
burning experience!
It was well into the early hours now and as
much as I hate to admit it, age is definitely
creeping up and the thought of a comfortable
bed for the first time in a week was too much.
Alex decided she wasn’t hanging out in Moshi
on her own, especially as we had an early start
next morning for the next stage of our travels
so, after another taxi fare stoush, we were back
at our hotel tucked up between clean sheets
dreaming of leopards, cougars, wilderbeast and
pink flamingos. Another story!
Canterbury tales
Canterbury Westland
Branch/NZLS
Education
Programme
Proudly sponsored by
Honourable lineup. The Chief Justice Dame Sian Elias is flanked by Associate Judge
Matthews, Justices Kos and William Young and, on her left, Justices Panckhurst and Gendall
at the admission ceremony for new Christchurch QCs Pip Hall and Jonathan Eaton.
Making a difference
Continued from Page 5
This, we believe, will set students up with skills
fundamentally required but never held
important by this or other universities in New
Zealand. Let me be clear — we at Canterbury
are not here to turn law students into bleeding
heart liberals. Neither are we are here to instil
a philanthropic sense of service for the sake of
service into students. But we are also not here
to be a degree factory.
We are here to make a difference and that
includes our students as much as members of
the Faculty. Employers and the world at large
need graduates who are able to deal with all
manner of issues in a nuanced and
sophisticated way through the application of a
variety of skills that illustrate an ability to think
and act clearly, logically and professionally.
Come 2015 all law students at Canterbury
University will have to accrue 100 hours of
community and/or professional service (paid
or unpaid) over the life of their degree.
Practice Notice
In addition to this requirement students will
undertake courses on such things as curriculum
vitae development, professional liaison,
interview skills and working within a professional
environment.
Further, all law students will have to undertake
one of three internships — either the Legal
Internship, the Community Law Internship or
an internship with the New Zealand Public
Interest Project. The Community Law Internship
and the New Zealand Public Interest Project
Internship will both be launched in February
2014 (watch this space).
The Legal Internship has just been launched
and will, this summer, already be the single
largest internship programme at the University
of Canterbury if not the largest across all the
universities in New Zealand.
We are also very pleased to announce the
advertisement of a new key strategic position the Director of Clinical Legal Studies. The
advertisement for the position can be found
on the UC vacancies page at: http://
www.canterbury.ac.nz/joinus/.
This person will be not only charged with
Directing the Clinical Programme but will lead
research on the justice gap in New Zealand
and will also seek to develop a much closer
relationship with the Canterbury legal
profession.
We are greatly looking forward to working more
closely with the Canterbury legal profession and
the wider Canterbury community. We are
committed to making a difference and
providing an opportunity for our students to
change the world and to stand out from the
crowd as multi-skilled leaders as a result. The
innovations detailed here can be further viewed
in our strategic plan which is available on our
website — http://www.laws.canterbury.ac.nz/.
NZLS Continuing Legal Education
(CLE Limited)
To register and for other
information check the CLE website,
www.lawyerseducation.co.nz
Christchurch
November
5 — Update on Contract.
12 — The Role of the Trustee (also
Webinar, 20 November).
20-21 — Reading accounts and balance
sheets.
26 November — Webinar, The Retirement
Village option, advising your clients on the
benefits and pitfalls.
26 — Immigration and Protection Tribunal.
27 — Trust Account Supervisor Training.
Out of Christchurch
Lawyer as Negotiator, Wellington, 12-13
November, Auckland, 19-20 November.
Introduction to High Court Civil Litigation
Skills, Auckland, 25-26 November.
Family Law Conference, Auckland, 21-22
November, pre-conference workshop, 20
November.
Mediating Dangerously, workshop,
Auckland, 15 November, Wellington, 18
November
Negotiation Masterclass, Auckland, 27
November.
Social
South Island Devils Own Golf
Tournament, 1-3rd November.
To Lease
Office to lease from January 2014 —
300 metres from Courts.
87m2, two offices, mediation room,
reception, kitchen, toilet, shower,
two car parks. Lease negotiable.
Phone 0212048637
11
2
12
Canterbury
Canterburytales
tales
39 new lawyers admitted
On Friday 20th September an
Admission Ceremony was held and
39 new admittees joined the
profession.
One of these was Rachel Walsh. Rachel said
that the admission ceremony was fantastic and
everybody who attended enjoyed the
experience. Rachel’s father, Judge Noel Walsh,
was of course there to enjoy this special day
with his daughter and as she acknowledges,
“Dad inspired me to follow him into the
profession”.
Unfortunately her mother passed away six
months ago but Rachel knows she would have
been very proud of her and thanked her mum
in her speech for getting her to where she is
today.
The ceremony was followed by an afternoon
tea at The George where Rachel Dunningham
and Stephanie Mann both welcomed the new
admittees to the profession. The new
admittees are:
Gregory Stuart Belton-Brown, Adam David Cox,
Michael Andrew Gibbs, Rachel Sarah Irwin,
Sarah Elizabeth Leyser, Joanna Jen En Ling,
Wathsala Tahani Ponnamperuma, Claire
Elizabeth Riach, Katherine Semoe Rouch,
Andrew John Sclater, Sarah Jane Simpson,
Rachel Elizabeth Walsh, Rebecca Jane Ardagh,
Jeremy Patrick Bell- Connell, Malaika Odette
Cockerell, Hamish Gordon Rees Davies, Anna
Mary Thomas Galvin, Troy James Gillan,
Christina Margaret Gordon, Catrina Marie
Hunter, Natalie Melanie Jones, Christopher
Mark Jury, Catherine Janet McCallum, Rosemary
Margaret Mein, Heather Fergus Neeson,
Jonathan William Cranford Nicolle, Kimberlee
Amber Gail Smith, Stephanie Anne Turner,
Judge Noel Walsh and his daughter Rachel.
Nadia Serena Watson, Miriam Margaret
Catherine Black, Colenna Maree Collins, Belinda
Frances Sheila Egden, Thomas Charles Glasson
Nation, Harry Thomas Shaw, Jamie-Lee Tuuta,
Dhamendra Ashok Unka, Kelsey Patricia
Watson, Andrew James Palliser.
....still a way to go?
The fact that more than 50% of the new
admittess were female got Zylpha Kovacs
thinking about the history of women jurors
in New Zealand. Here she takes a quick look
back.
On the 26th October 1942 the Women Jurors
Act came into force. This Act allowed, for the
first time, women aged between 25 and 60 to
volunteer to have their names placed on the
jury list.
1943 saw the first female juror, Miss Elaine
Kingsford, who sat on a case at the Auckland
Supreme Court. While being interviewed at the
time she made the “radical suggestion” that
there may even be women judges in the future!
Very few women took up the opportunity to
serve on juries in the 1940s and 1950s.
In 1963 the Act was amended to include all
adult women’s names on the list — although
they could claim automatic exemption.
Automatic exemption was later updated to
ensure both men and women had the same
jury responsibilities.
The 1940s saw a number of important
milestones for New Zealand women, namely,
first women police officers in 1941, Mary
Anderson was the first women judge in 1945
and then her and Mary Dreaver were the first
women to be appointed to the Legaslative
Council in 1946. These milestones were due
partly to the war and the number of men
serving overseas.
While the effects of the war advanced the
position of women in New Zealand in the
1940s, the women’s cause was fought long
and hard back in the 1890s by the suffragettes.
This fight culminated in the Electoral Act of
1893 granting women the right to vote in
parliamentary elections.
New Zealand was the first self-governing
country to give women the vote.
Notwithstanding that, there was still a long way
to go from there to 1919 for the right to stand
for Parliament, the advances in 1940s and 50s,
Equal Pay Act in 1972, Ministry of Women’s
Affairs in 1985 to name a few.
Some would say there is still a way to go while
others suggest that today women can “do
anything.”