SPRING 2013 1

AdvocateSpring 2013

The quarterly magazine of the Young Lawyers’ Committee Wellington

NZBA/YLC Mooting CompetitionThird party litigation funding Criminal Procedure Act 2011YLC Young Professionals’ Ball

INSIDE THIS ISSUE:

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SPRING 2013 03

YLC Advocate Spring 2013

Editors: Lizzie Chan & Hamish McQueen

Layout: Rebecca Walthall

Cover photograph by flickr user ericthehalibut

04Editors’ Note

05Convenor’s Note

06YLC Committee

07Spotlight on Nigel

Salmons

10YLC Young

Professionals’ Ball — 31 August

12Case Note: Air New Zealand Ltd v Kerr — Jennifer Howes

14Things You Might

Not Know About the Criminal Procedure

Act 2011 — Libby Major

15Get Ahead

Careers Seminar — 3 September

16Summer Loving

— Ani Chan

18YLC Chapman Tripp

Comedy Debate — 3 October

20Case Note of a Recent

Supreme Court Decision: West Coast ENT v Buller Coal Ltd

— Lizzy Wiessing

22YLC Oktoberfest

— 12 October

23YLC/Government

Legal Network “Serving the Crown”

Drinks with the Attorney-General and

Solicitor-General — 31 October

24Case Note of a

Recent Supreme Court Decision on

Third Party Litigation Funding:

Waterhouse v Contractors Bonding Ltd

— Helen Arathimos

26Felt it?

Quake-rattled Internship at

Community Law Wellington and

Hutt Valley — Community Law

Centre

27YLC MAS Basics of

Investment Seminar: Real Estate and

Property — 3 October

27Bridging the Gap Dinner and Drinks — 17 September &

8 October

28New Zealand Bar Association/YLC

Mooting Competition — September–October

30Who is the Chief

Justice of Australia? — David Green

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04 YLC ADVOCATE

While New Zealand has an independent and robust judiciary, Lundy’s case highlights that the criminal appellate court structure is not designed to deal with the wide-ranging factual reviews that are required in some cases.

Retired High Court Judge Sir Thomas Thorp has long advocated that New Zealand set up an independent criminal review commission. Based on his studies of the criminal review tribunals in England and Scotland, Sir Thomas estimated that there are likely to be at least 20 innocent people in jail in New Zealand. He has noted that, on average, referrals to the Scottish Criminal Cases Review Commission had resulted in four wrongful convictions being corrected each year (Scotland having a similar prison population to New Zealand), compared to New Zealand’s rate of one every two years under the prerogative of mercy system.

The difficulties faced by Teina Pora in challenging his convictions for murder and rape are a good example of the shortcomings of the current prerogative of mercy system. Despite strong calls for an inquiry into Pora’s convictions, including from the Police Association, the Ministry of Justice has steadfastly refused to consider making a recommendation to the Governor-General. An independent commission would provide a safety valve in the criminal justice system without having to rely on the willingness of the Minister to order an ad hoc review or the need to frame an appeal as a question of law.

Sir Thomas considered that concerns about cost or that a commission would be bogged down with unmeritorious claims are not supported by the Scottish experience. In addition, the current system relies on law-yers’ willingness to take on the cause of prisoners for little or no pay-ment, often for a number of years. The case for a commission may even be stronger in New Zealand because of the high proportion of Māori and Pacific Islanders in prison who may be less likely to seek to correct mis-carriages of justice due to cultural factors and a lack of faith in the sys-tem. The Government’s insistence that the judicial appellate system is sufficient to prevent miscarriages of justice reveals a misunderstanding of the role that a review commission would play in our criminal justice system.

Inside this issue we are proud to present another great collection of articles from Wellington’s young lawyers. David Green ponders whether we should be taught more about Australian law at university. Four European interns share with us their personal experiences as interns at Community Law Wellington and Hutt Valley. Plus, we have a useful series of notes on recent developments in the law. Jennifer Howes discusses a recent Employment Court decision on the relationship between restraints of trade and garden leave. Libby Major examines some interesting changes to criminal procedure brought about by the Criminal Procedure Act 2011. Lizzy Wiessing provides a case note on the Supreme Court’s recent decision on the effect of carbon emissions

The Privy Council’s recent judgment quashing Mark Lundy’s murder

convictions and ordering a retrial has highlighted the need for New Zealand

to consider seriously the establishment of an independent commission to investigate miscarriages of justice.

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Editors’ noteLizzie Chan and Hamish McQueen

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The YLC has undergone a refocusing over the past two years towards providing greater advocacy and professional development services for young lawyers in Wellington. Whilst retaining our primary objective of fostering collegiality among young lawyers, several YLC committee members have been beavering away on a number of projects to enhance the profile of the YLC in Wellington and greater New Zealand, and to give young lawyers the opportunity to enhance their standing in the legal community.

It was in this context that the YLC’s inaugural mooting competition was conceived, to allow young litigation practitioners the opportunity to step out from under their supervising partners’ shadows and showcase their skills in their own right. Naturally, this was an objective that the New Zealand Bar Association keenly identified with and threw its weight be-hind, with our sincere appreciation.

The competition couldn’t have achieved its goals more spectacularly. From the first heats, all of the participants were incredible, and our judges and mentors rose to their respective tasks with gusto. All of the participants should feel proud of their performances, and all judges and mentors similarly so for supporting these young lawyers. I’ve heard nothing but gratitude from participants for the assistance of their men-tors. All of the judges were impressed by the participants and the par-ticipants suitably intimidated by the judging panels!

The moot final and prizegiving ceremony undoubtedly demonstrated the success of the competition, with a packed gallery in the Old High Court, an awe-inspiring performance from the mooters and a very engaged panel of Supreme Court Judges. I left the prizegiving ceremony with the feeling that the YLC had truly come into its own and found its place within the Wellington legal community. Everybody involved with the project should feel proud of what they have achieved for themselves and the YLC this year.

What would you like to see included in the

YLC Advocate?We’d love to hear any feedback about the magazine — especially from potential contributors! So please

get in touch at info@younglawyers.co.nz.

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when considering whether to approve resource consents for coal mines. Helen Arathimos comments on a recent Supreme Court decision on litigation funding, and considers the place of litigation funding in New Zealand. Finally, Ani Chan shares with us her tips on finding the perfect swimwear and sunglasses in preparation for summer!

Of course, we also have reports and photos from the latest YLC events – including the highlight of Wellington young professionals’ calendars, the YLC Ball! The YLC has hosted a large number of events in recent months, and Advocate has reports on the Bridging the Gap mentor-ing programme, the MAS Basics of Investment Seminar, the Careers Seminar, the Chapman Tripp Comedy Debate, Oktoberfest, and the Government Legal Network’s “Serving the Crown” drinks. In addition you can read all about the first ever NZBA/YLC mooting competition, which was held throughout September and October. Congratulations to Edward Greig and Hugh McCaffrey for winning the competition!

This will be our last edition of Advocate as editors, as we are both leaving Wellington next year to move on to new jobs. In our first editorial we spoke of the virtues of Wellington, in particular the public-spiritedness and interconnectedness of the legal profession. During our two years in Wellington our first impressions have proved well-founded. We have re-ally enjoyed getting to know young lawyers around Wellington, and are sad to say farewell to a number of new friends. There is a real spirit of collegiality in the Wellington profession that should be cherished.

We are also grateful to Annabel Martin for her marketing prowess and to Rebecca Walthall for her design work.

Over and out.

This quarter’s edition of Advocate rounds out a frenetically busy few months for the YLC, largely

due to the inaugural New Zealand Bar Association/YLC Mooting Competition. The mooting

competition is arguably the YLC’s largest and most ambitious project to date.

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Convenor’s noteJamie Grant

Y LC C ON V E NOR

06 YLC ADVOCATE

Althea Carbon

Amberley James

Annabel Martin

Daniel Fielding

Elizabeth Chan

Emma Currie

Guy Carter

Hadleigh Pedler

Hamish McQueen

Heléna Cook

Helen Arathimos

Ian Miller

Jamie Grant

Jelena Gligorijevic

Jessica Braithwaite

Jessica Davies

Jordan Williams

Katie Williams

Katrina Kelly

Kerrin Eckersley

Leah Hamilton

Lorraine Hercus

Mallory Ward

Monica Hamlyn-Crawshaw

Nadia Gastaldo-Brac

Natalie Pierce

Nigel Salmons

Nikki Farrell

Penelope Skinner

Richard Evans

Rikky Minocha

Sam Mossman

Simon Wilson

Tim Cochrane

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Committee Members

YLC Executive 2013

Convenor

Jamie Grant

Deputy Convenors

Heléna CookElizabeth Chan

Treasurer

Daniel Fielding

Secretary

Lorraine Hercus

Communications officer

Hadleigh Pedler

Sponsorship Officers

Guy CarterRichard Evans

Marketing/membership officers

Annabel MartinAmberley James

Magazine editors

Elizabeth ChanHamish McQueen

Advocacy, Welfare & Professional Development

officer

Natalie Pierce

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What’s your role on the YLC?

I’m one of the general committee members. I help to organise events and keep the other young lawyers at work in the loop with what’s coming up. Recently I’ve been involved with the NZBA/YLC Mooting Competition, which has been great fun.

When and why did you join the YLC?

Earlier this year I let slip at one of the first YLC events that I was from a firm that hadn’t had anyone on the committee for a number of years. They recommended I join, so I did. So far so good.

What do you do in your day job?

I do normal first year lawyer-ish type stuff. My “area of expertise” is public and IT law, but really I just do what I’m told. In a big firm the work can range quite a bit from day to day. Sometimes it stays the same, other days it’s different. It varies.

What’s your favourite holiday spot in New Zealand?

Queenstown off-peak season. Beautiful location, always something to do, all kinds of people … and Ferg burger.

If someone asked you to give them a random piece of advice, what would you say?

I’d pass on a solid piece of advice that was given to me a long time ago: “The definition of insanity is doing the same thing and expecting a different result.” In other words, if you keep doing what you’ve always done, you’re going to keep getting what you’ve always got. I think most people (myself included) often overlook the fact that if you want something to improve in life, you actually have to change something about your life!

If you could bring a famous person back to life to dine with you for one night, who would it be?

Socrates. Though I would also need to invite a Greek translator to dinner to somewhat enhance what otherwise might be a rather frustrating experience. I say Socrates because I imagine he’d have some pretty interesting dinner table chat. To be fair, he’d probably have a few questions for me too. There have been some significant changes since his death in 399 BC.

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Spotlight on Nigel Salmons

10 YLC ADVOCATE

Young Professionals’ Ball

On Saturday 31 August, the YLC hosted the annual Young Professionals’ Ball. 300 young

professionals donned their glad rags and descended on The Boatshed for a night of glitz

and glamour, Great Gatsby style.

It was a night filled with sparkly headpieces, pocket squares, delicious delicacies from Fine Cuisine, and even some hooch at the juice joint. In a venue that would have made Jay Gatsby himself jealous, Jonny and the Dreamboats serenaded the room with smooth jazz before everyone twirled the night away.

The YLC would like to thank The Boatshed, Jonny and the Dreamboats, and Elaine Harris of Fine Cuisine for their assistance in creating a night not soon to be forgotten!

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SPRING 2013 11

12 YLC ADVOCATE

The facts

Mr Kerr was employed by Air New Zealand for approximately nine years, first as International Cargo Operations Manager, then as General Manager of Eagle Airways, and finally, as General Manager of Air Nelson, a role he held for four years. His employment agreement con-tained a restraint of trade clause that prohibited him from working for a competitor in New Zealand or Australia for six months following termination of his employment. It also contained a garden leave provi-sion. The garden leave provision meant that during his six month notice period, he would remain an employee and receive his full salary, but be prohibited from performing any work for Air New Zealand, effectively being told to go home and garden (hence the name).3

On 4 February 2013, Mr Kerr resigned from Air New Zealand, informing it that he had accepted a position with Jetstar as Head of New Zealand. He also informed Air New Zealand that he intended to start work with Jetstar on 5 August 2013, after his six month notice period finished.4 Due to the fierce competition between the two airlines,5 Air New Zealand put Mr Kerr on garden leave on 5 February 2013 to restrict his access to its confidential information.

At the outset, Mr Kerr agreed to abide by his confidentiality obligations, his duty of fidelity and the non-solicitation restraint. However, Mr Kerr advised Air New Zealand that he did not intend to comply with the six-month non-competition restraint as he had received legal advice that it was unenforceable.

Accordingly, Air New Zealand commenced proceedings against Mr Kerr to enforce the non-competition restraint. The matter was removed to the Employment Court on the grounds that one or more important questions of law were likely to arise, namely:6

(a) whether a period of garden leave (involving the employee’s complete removal from the relevant industry and his or her workplace) is in essence a restraint of trade; and

(b) how and to what extent a period of garden leave should be taken into account when assessing the reasonableness of a post-employment restraint of trade.

Restraints of trade and garden leave

The law relating to restraints of trade in New Zealand is well-estab-lished. The general position is that any restraint of trade is prima facie unlawful unless an employer can establish that it extends no further than reasonably necessary to protect the employer’s legitimate business interests.8 In determining whether Air New Zealand’s restraint was rea-sonable, Judge Ford had to determine first, what the clause meant when properly construed. He then had to determine whether Air New Zealand had a legitimate proprietary interest worthy of protection. If such an in-terest existed, the question became whether the restraint was no wider than necessary. This last inquiry involved considering the reasonable-ness of the period of the restraint, its scope and its geographical limits. If satisfied that it was reasonable, the Court then had a discretion to grant the permanent injunction that was sought.

Case note: Air New Zealand Ltd

v Kerr

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Jennifer HowesL AW C L E R K AT B U DDL E F I N DL AY

Restraints of trade and garden leave provisions are becoming increasingly common in employment agreements, but little thought has been given in New Zealand to the interaction between the two. Taking guidance from overseas authorities, the Employment Court has finally grappled with

the issue in the recent high profile case, Air New Zealand Ltd v Kerr.1 This article outlines the approach towards garden leave in Australia and

the United Kingdom, and how New Zealand courts will likely approach such provisions, following this

recent New Zealand judgment.2

3 At [7]–[8].4 At [9]–[14].5 At [10].6 Air New Zealand Ltd v Kerr [2013] NZERA Auckland 241. Air New Zealand’s challenge to the

removal was dismissed, see Air New Zealand Ltd v Kerr [2013] NZEmpC 114.7 Air New Zealand v Kerr, above n 1, at [2].8 Air New Zealand v Kerr, above n 1, at [1]; Transpacific Industries Group (NZ) Ltd v Harris

[2013] NZEmpC 97 at [37]; and Gallagher Group Ltd v Walley [1999] 1 ERNZ 490 (CA) at [20].

1 Air New Zealand Ltd v Kerr [2013] NZEmpC 153.2 The author notes that Buddle Findlay acted for Mr Kerr in this proceeding. The views

expressed in this case note are the author’s own and not those of Buddle Findlay.

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9 Credit Suisse Asset Management Ltd v Armstrong [1996] ICR 882 (CA) [Credit Suisse].10 See Air New Zealand v Kerr, above n 1, at [59].11 Credit Suisse, above n 9, at 894.12 Air New Zealand v Kerr, above n 1, at [63], commenting on the High Court’s decision in

Tullet Prebon plc v BGC Brokers LP [2010] EWHC 484 (QB).13 See Tullet Prebon (Australia) Pty Ltd v Purcell [2008] NSWSC 852; and Seven Network

(Operations) Ltd v Warburton (No 2) [2011] NSWSC 386.14 See Tullet Prebon, above n 13, at [40]–[46] and [55]–[56]. 15 Tullet Prebon, above n 13, at [52]–[58], [66] and [68].

16 Marshment v Sheppard Industries Ltd [2010] NZEmpC 98; and Transpacific Industries Group (NZ) Ltd v Harris [2013] NZEmpC 97. See also the analysis of these cases in Air New Zealand v Kerr, above n 1, at [69]–[70].

17 Marshment v Sheppard Industries, above n 16, at [54].18 At [54].19 At [54].20 Air New Zealand v Kerr, above n 1, at [71].21 At [74]–[75].22 At [80].23 At [81].24 At [83].

The Judge ruled in favour of Air New Zealand on the first two issues. He found that the clause was designed to protect confidential information and not merely prohibit competition per se. He also concluded that Air New Zealand possessed confidential information akin to a trade secret that required protection. Judge Ford then turned to the question of reasonableness, in particular the duration of the restraint and the significance (if any) of the six months’ garden leave. Air New Zealand submitted that there was no relationship between garden leave and the restraint of trade, or alternatively, that garden leave was just one of many factors to take into account in determining reasonableness.

On the other hand, Mr Kerr submitted that the garden leave was a restraint of trade in itself, governed by restraint principles, and that full account had to be taken of the six months on garden leave. Mr Kerr’s submission in essence was that Air New Zealand had already received sufficient protection by virtue of the garden leave and was not entitled to more. The resulting decision in favour of Mr Kerr ultimately turned on this important issue and what Judge Ford took from overseas authorities.

Overseas authorities

Air New Zealand sought to rely on the decision of the Court of Appeal of England and Wales in Credit Suisse Asset Management Ltd v Armstrong,9 which held that there was no relationship between garden leave and a restraint of trade.10 Under Credit Suisse, if a restraint is reasonable, even in the face of a garden leave clause, an employer is entitled to have it enforced except in “exceptional cases”11. However, subsequent decisions had broadened the approach and it appeared to Judge Ford that English courts are now required to “assess the extent to which the employer’s interests are already adequately protected during the period of garden leave and, therefore, whether enforcement of the restraint of trade clause is necessary in all the circumstances”.12

The approach in Australia quite clearly favours finding a relationship between garden leave and restraints of trade.13 The leading New South Wales Supreme Court decision considered that restraint principles apply to any time spent on garden leave.14 Additionally, time spent on garden leave was relevant in determining the reasonableness of a post-employment restraint.15

Further, although the matter had not been decided in New Zealand, it had come to the Employment Court’s attention in a small number of cases.16 Chief Judge Colgan had noted, in an interlocutory decision, that the important commercial consequences of a restraint were achieved by making an employee “impotent commercially”during a period of garden leave.17 In the Chief Judge’s view, even if the employer did “not literally obtain a further month’s restraint, it retained all the significant bene-fits”18 and this was a “relevant consideration going to overall justice”. 19

The position in New Zealand

Ultimately, Judge Ford concluded that in New Zealand, any period spent on garden leave “should be taken into account by the Court when con-sidering the reasonableness of the duration of any post-employment restraint covenant”.20

In this case, given that Mr Kerr’s entire focus was on Air Nelson, an air-line that did not compete directly with Jetstar,21 the fact that Mr Kerr did not have any copies of the documents relied upon22 and that it had been eight months or more since he had attended meetings or received docu-ments containing confidential information,23 a period of only six months was necessary to protect Air New Zealand’s legitimate proprietary in-terests. Accordingly, the six months already spent on garden leave was sufficient to provide Air New Zealand with all the protection it needed and any further restraint would be unnecessary.24

It will be interesting to see whether employers change their approach to garden leave and restraints of trade following this decision. In hind-sight, Air New Zealand should have allowed Mr Kerr to work out his six month notice period. It would have then been able to enforce the six month post-employment restraint, and prohibit Mr Kerr from working for Jetstar until February 2014. However, the enforceability of restraints is always hard to predict, and this decision demonstrates just how deli-cate such clauses are.

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It may limit the courts’ inherent jurisdiction

Judges’ inherent power to control their courtrooms received media at-tention last year after a judge questioned why a baby was being breastfed in his courtroom. While the woman chose to leave of her own volition, it was noted that if the judge had ordered her to leave, it was his right to do so: it was the judge’s courtroom.1 However, since then the Act has curtailed the courts’ inherent powers by codifying the power to clear the court.2 The Act prescribes who may be removed and in what circum-stances. It specifically prescribes that this power is in substitution of any power to clear the court previously held under inherent jurisdiction or any rule of law.3

However, can Parliament override the courts’ inherent jurisdiction? With regard to the District Courts, this can be accepted; the District Courts were themselves created by Parliament.4 But what about the High Court? While s 16 of the Judicature Act 1908 recognises the High Court’s inherent jurisdiction, it is not sourced from there. The High Court’s inherent jurisdiction exists outside of statute. It exists because of the very nature of the Court: in order for the Court to carry out its functions it has to be “invested with power to maintain its authority and to prevent its process being obstructed and abused”.5 Despite this, in Zaoui v Attorney-General the Supreme Court found with regard to bail, Parliament could displace both substantive and procedural inherent jurisdiction by legislation. However, where this was done the statutory purpose must be plain.6 There can be no argument about the plain word-ing contained in the Act. It will fall to the courts to decide if the power to control their courts is so essential that it cannot be derogated in the slightest by Parliament.

If this is accepted, what, if any, limits the Act has placed on this still re-mains to be seen. The wording of the section is general and allows the court to exclude members of the public if it is required, for example, to avoid “undue disruption to the conduct of the proceedings” or “a real risk of prejudice to a fair trial”.7 However, what this provision does is turn what would have originally been a subjective decision of a judge, into an objective one that requires a rational basis. Could a judge still ask for a breastfeeding mother to be removed from the court? Can this be said to be an undue disruption? Or would this prejudice a fair trial? This may make for some interesting case law in the future.

Things you might not know about the Criminal Procedure

Act 2011

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Libby MajorJ U D G E S’ R E S E A RC H C OU N S E L AT

T H E H A M I LTON DI S T R IC T C OU RT

The introduction of the Criminal Procedure Act 2011 (the Act) has been lauded as the biggest change to New Zealand’s criminal procedure in over 50 years. The main aim of the Act was to streamline the criminal process so that cases

could proceed quicker, with fewer hearings. Apart from this, for the most part, the Act has collected procedural law and collated it in one easy to find place. However, there are a couple of interesting

changes you may not be aware of that have resulted from this codification.

1 “Breastfeeding mum asked to leave court” New Zealand Herald (online ed, 25 October 2012) <www.nzherald.co.nz>.

2 See Criminal Procedure Act 2011, s 197.3 Section 197(4). 4 See District Courts Act 1947, s 3.5 Sir Jack Jacob “The Inherent Jurisdiction of the Court” (1970) CLP 23 at 27.6 Zaoui v Attorney-General [2005] 1 NZLR 577 (SC) at 644.7 Criminal Procedure Act, ss 197 (2)(a)(i) and (iii).

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8 Criminal Procedure Act, s 133(2).9 Previously Crimes Act 1961, s 339; now, Criminal Procedure Act, s 143.10 Campbell v Police [1990] 3 NZLR 9 (CA) at 14.11 At 14.12 Crimes Act, s 335(2).13 Criminal Procedure Act, s 364.

It could erode prosecutorial discretion

The Act has extended how and when charges may be amended. Now the court can amend a charge of its own motion at any stage in a pro-ceeding.8 Previously in the indictable jurisdiction, a charge could only be amended before a trial on application by the prosecution. This means that there are two key changes: a charge can be amended during a trial, and the court can amend a charge without an application.

Now during a trial, the Judge could, on his or her own motion, amend the charge downwards or upwards to suit the facts that have been proven. That raises the question: does this type of judicial intervention overstep the boundary into prosecutorial discretion? It should be noted the court has always had the power to convict for included offences, but an amended charge is likely to have a higher penalty.9 Furthermore, the Act provides no guidance of what factors should be met in order to exercise this power.

The courts are likely to be guided by the case law that previously developed in the summary jurisdiction and around applications in the indictable jurisdiction. In the summary jurisdiction, a judge was required to turn his or her mind to an amendment if the evidence pointed to the commission of an offence other than the one charged.10 However, the accused could not be misled or prejudiced in his or her defence by any such amendment.11 That the accused must not be misled or prejudiced against was previously a legislative requirement for amendments in the indictable jurisdiction.12 The fact that Parliament has chosen to exclude this requirement in the Act is of note. Its specific exclusion may mean that a lesser threshold could now apply. Of course, such an interpretation would still need to be consistent with the New Zealand Bill of Rights Act 1990.

Other changes to note

The above are just two examples where the Act might have unexpected implications in the future. Another area also worth watching will be how the courts choose to proceed with the provisions that allow them to im-pose costs on counsel and accused for procedural failures.13 It will also be interesting to see how the Act impacts on the jury to judge-alone trial ratio and how this impacts on justice overall in New Zealand. There can be no doubt that the Act will create lasting changes to how our courts operate in the future.

Andrea drew on her experience as a High Court clerk, with the Prosecutor’s Office of Bosnia & Herzegovina and now as a Crown Prosecutor at Luke, Cunningham & Clere. As a former solicitor and director of legal recruitment consultancy JLegal, Damian shared his unique perspective of what employers want and of the international market for legal talent. The messages were forthright and unembellished, tackling the issues that weigh on young lawyers’ minds (including those we mightn’t admit to having on our minds) — the importance of your employer’s reputa-tion for future job applications, the value of postgraduate study, the sig-nificance of career planning and the state of overseas employment mar-kets were all canvassed. Those present left with much to think about.

The YLC is very grateful to Kensington Swan for its hospitality, and to Damian and Andrea for their wisdom.

YLC Get Ahead Careers Seminar

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This year’s Get Ahead Careers Seminar was hosted by Kensington Swan on 3 September. The event was attended by around 40 young lawyers and participants in the Bridging the Gap lawyer-

student mentoring programme. Speakers Andrea Ewing and Damian Hanna thought back to the first steps of their careers, pondering what they know

now and what they wish they’d known then.

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Holidays, warm weather, blue skies and crystal clear waters. Yes. Summer is finally peering around the corner. Find out which type of swimwear will highlight the features you love and downplay the features you don’t love. Know which style of sunglasses will best suit your face shape. Prepare for this summer and make sure you’ve got all your essentials for having fun in the sun!

1. Vogue Australia Magazine $9.20

2. Havaianas, Slim Animal Fluoro $40

3. Neutrogena Wet Skin Sunscreen Spray $21.99

4. Elizabeth Arden, Green Tea Honeysuckle Eau de Toilette 50ml $52

5. Crabtree & Evelyn, Pomegranate, Argan & Grapeseed hand therapy 100ml $35

6. L’Occitane, Organic Shea Butter Mango Flower Lipbalm $21

7. Beach Towel, Cotton On $45.99

8. Country Road, Colour Block stripe tote $64.90

Beach Essentials

- Swimwear - Which type of swimming gear goes best with your body shape? Here are some tips to finding the ultimate swimsuit for you this summer.

- Sunglasses - Which set of frames suits your face shape the most? Follow these tips and buy a pair of sunglasses that match your features and face structure.

Round face shapes tend to have fuller cheeks so pick frames that extend your face making it look thinner and longer. Angular, rectangular, horizontal or upswept frames all draw attention to the top of your face creating that extra length you need.

1. Victoria’s  Secret,  Black  Foil  Garden  Floral  $89  (www.victoriassecret.com)  

2. Moontide,  Spots  and  Stripes  tankini  set  $110  (North  Beach)  

3. Seafolly,  Bella  Rose  bikini  set  $195  (Splash  Swimwear)  

4. Seafolly,  Summer  Garden  swimsuit  $217  

5. Victoria’s  Secret,  Black  Stripe  and  Aqua  Reef  Ruffle  bikini  set  $65  

1. Karen  Walker,  Rowdy  Filigree  in  black  $349  2. House  of  Holland,  Eyebrows  Sunglasses  $349  3. Le  Specs,  Rapture  in  Ice  Blue  $74.99  4. Giorgio  Armani  Sunglasses  $460  

 

Oval face shapes are the lucky ones. They have balanced proportions and can pull off any kind of frames. My advice is have fun, play around and try something new!

1. Prada,  Poeme  Sunglasses  in  Ivory  $495  2. House  of  Harlow  1960,  Lucy  Sunglasses  $150  3. Le  Specs,  Rude  Boy  in  Gold  $90  4. Ksubi,  Rana  Sunglasses  in  Leopard  $329  

1. Karen  Walker,  Iris  in  Pink  $349  2. Prada,  Baroque  Sunglasses  $530  3. Coach,  Alexa  Cat  Eye  in  Clear  $245  4. Fendi,  Injected  Sunglasses  in  Green  $349  

Square face shapes should avoid hard angular lines that accentuate your strong features. Soften your hard features with oval or round frames.

 

Heart face shapes are suited to frames that draw attention downwards to add width to the lower part of their faces. Avoid frames that sit too high and wide and stay away from decorative top styles. Round edges and large frames are recommended.

1. ASOS,  Retro  with  Blue  Mirrored  Lens  $22  2. Jeepers  Peepers,  Cloud  Round  $39  3. Ray-­‐Ban,  Aviators  $295  4. Vogue,  Tortoiseshell  Sunglasses  $135  

§ Plunge or halter tops emphasises the neck, collarbone and chest areas

§ Tankinis with shirring helps to conceal unwanted belly bulges

§ Push-up or balconette bikini tops enhances the bust

§ High cut bottoms draw length to the legs

§ Use prints on areas where you want to add volume and attention

§ Use dark block colours on areas that you want to tone

§ High-waist bikini bottoms or one piece tucks in the waist

SPRING 2013 17

Ani ChanC A S E OF F IC E R, S U P R E M E C OU RT

H I N TOF C H IC.WOR DP R E S S.C OM

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- Swimwear - Which type of swimming gear goes best with your body shape? Here are some tips to finding the ultimate swimsuit for you this summer.

- Sunglasses - Which set of frames suits your face shape the most? Follow these tips and buy a pair of sunglasses that match your features and face structure.

Round face shapes tend to have fuller cheeks so pick frames that extend your face making it look thinner and longer. Angular, rectangular, horizontal or upswept frames all draw attention to the top of your face creating that extra length you need.

1. Victoria’s  Secret,  Black  Foil  Garden  Floral  $89  (www.victoriassecret.com)  

2. Moontide,  Spots  and  Stripes  tankini  set  $110  (North  Beach)  

3. Seafolly,  Bella  Rose  bikini  set  $195  (Splash  Swimwear)  

4. Seafolly,  Summer  Garden  swimsuit  $217  

5. Victoria’s  Secret,  Black  Stripe  and  Aqua  Reef  Ruffle  bikini  set  $65  

1. Karen  Walker,  Rowdy  Filigree  in  black  $349  2. House  of  Holland,  Eyebrows  Sunglasses  $349  3. Le  Specs,  Rapture  in  Ice  Blue  $74.99  4. Giorgio  Armani  Sunglasses  $460  

 

Oval face shapes are the lucky ones. They have balanced proportions and can pull off any kind of frames. My advice is have fun, play around and try something new!

1. Prada,  Poeme  Sunglasses  in  Ivory  $495  2. House  of  Harlow  1960,  Lucy  Sunglasses  $150  3. Le  Specs,  Rude  Boy  in  Gold  $90  4. Ksubi,  Rana  Sunglasses  in  Leopard  $329  

1. Karen  Walker,  Iris  in  Pink  $349  2. Prada,  Baroque  Sunglasses  $530  3. Coach,  Alexa  Cat  Eye  in  Clear  $245  4. Fendi,  Injected  Sunglasses  in  Green  $349  

Square face shapes should avoid hard angular lines that accentuate your strong features. Soften your hard features with oval or round frames.

 

Heart face shapes are suited to frames that draw attention downwards to add width to the lower part of their faces. Avoid frames that sit too high and wide and stay away from decorative top styles. Round edges and large frames are recommended.

1. ASOS,  Retro  with  Blue  Mirrored  Lens  $22  2. Jeepers  Peepers,  Cloud  Round  $39  3. Ray-­‐Ban,  Aviators  $295  4. Vogue,  Tortoiseshell  Sunglasses  $135  

§ Plunge or halter tops emphasises the neck, collarbone and chest areas

§ Tankinis with shirring helps to conceal unwanted belly bulges

§ Push-up or balconette bikini tops enhances the bust

§ High cut bottoms draw length to the legs

§ Use prints on areas where you want to add volume and attention

§ Use dark block colours on areas that you want to tone

§ High-waist bikini bottoms or one piece tucks in the waist

18 YLC ADVOCATE

YLC Comedy Law Debate

Would celebrities make better political leaders than politicians? With the United States Government shutdown, Putin’s nomination for a Nobel Prize,

and the Mo Ibrahim prize for good governance in Africa going unclaimed, this question has recently crossed the mind of many citizens. On a Thursday evening, 3 October, this issue was explored and

resolved at the YLC Comedy Debate.

An annual favourite for young Wellingtonians, this year’s Comedy Debate was a hit. The Chapman Tripp office was packed as people flocked to hear MPs, lawyers, and non-lawyers discuss Miley Cyrus’ twerking and the possibility of an All Blacks/Flight of the Conchords coalition party as part of an informed debate about what we need in a political leader.

On the affirmative side, we had comedian Jonathan Heslop, Yogesh Patel from Russell McVeagh and Richard D’Ath from the Ministry of Education invite the audience to consider an alternative political landscape with the Briscoes lady, Sally Ridge, and the X-Factor judges as MPs.

Taking on these cheeky young Gen Yers were MPs Shane Jones and Jacinda Ardern together with journalist Aimee Gulliver. Aimee asked whether New Zealand even had celebrities in the first place. Shane and Jacinda talked about the unique characteristics of being a politician. According to them, there is no such thing as a nerdy celebrity, but all politicians must be nerdy enough to love politics and survive it.

There was good cross-table banter including calls that Richard D’Ath was mean and his pants were too short and young lawyers trying to give Jacinda their business cards/numbers. Fortunately, Linda Clark as the MC kept the egos and interjections in check.

Overall, the night was a #success with much #laughterandwine and #goodcompany.

A massive thank you on behalf of the YLC to Chapman Tripp for spon-soring and hosting the Comedy Debate again this year, and to all those who came on the night!

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SPRING 2013 19

20 YLC ADVOCATE

In summary, the Court’s decision means that the regional council could not consider the greenhouse gas emissions from the end use of the coal (likely to occur overseas) sought to be won with the coal companies’ applications for resource consent.

The Supreme Court’s judgment is notable for its majority1 and minority judgments, where Elias CJ, in the minority, would have allowed the envi-ronmental groups’ appeals and heard more evidence about the declara-tions that should be made.

Background

As discussed in the case preview in the summer edition of Advocate (available here), the appeal before the Court concerned whether green-house gas emissions from the end use of coal (likely to occur overseas) should be considered by those making decisions on resource con-sent applications for coal extraction (the consideration in s 104(1)(a) of the Resource Management Act 1991 being “any actual and potential effects on the environment of allowing the activity”). The environ-mental groups opposing the construction and operation Buller Coal’s Escarpment Mine argued that the consent process must take into ac-count that the coal extracted from the mine, when burnt, would contrib-ute to climate change and thus have an “adverse effect” on the environ-ment. 2

Both the Environment Court3 and the High Court4 had previously ruled that consideration of greenhouse gas emissions is not within the scope of regional council considerations on a resource consent application be-cause of changes enacted by s 3 of the Resource Management (Energy and Climate Change) Amendment Act 2004 (2004 Amendment). While local authorities are responsible for planning for the effects of climate change (under s 7(i) of the Resource Management Act), greenhouse gas emissions are managed at a central government level under the auspices of the Climate Change Response Act 2002.5

It is worth repeating what s 3 of the 2004 Amendment states:

3 Purpose The purpose of this Act is to amend the principal Act— (a) …(b) to require local authorities— (i) to plan for the effects of climate change; but (ii) not to consider the effects on climate change of

discharges into air of greenhouse gases.

The Supreme Court’s judgment

The Supreme Court’s judgment extends over 178 paragraphs, but many relate to setting out the background to the case, and the lower courts’ judgments.

To start with the minority judgment, Elias CJ noted that s 3 of the 2004 Amendment should not be read as if it were part of the Resource Management Act, noting that it was not carried through to amend the

Case Note of a Recent Supreme Court

Decision: West Coast Ent Inc v Buller Coal Ltd

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Lizzy WiessingA S S O C I AT E AT S I M P S ON GR I E R S ON

The Supreme Court has recently given its judgment in the case West Coast Ent Inc v Buller Coal Ltd. After hearing an appeal direct from the

decision of the High Court in March, the Supreme Court has dismissed the appeal and upheld the

High Court’s judgment.

1 McGrath, William Young, and Glazebrook JJ. Chambers J died before the judgment was given and the remaining judges decided under s 30(1) of the Supreme Court Act 2003 to proceed to judgment.

2 West Coast Ent Inc v Buller Coal Ltd [2013] NZSC 87 at [102].3 Re Buller Coal Ltd [2012] NZEnvC 80, [2012] NZRMA 401.4 Royal Forest and Bird Protection Society of New Zealand v Buller Coal Ltd [2012] NZHC

2156, [2012] NZRMA 552.5 Before the Supreme Court gave its judgment, the Environment Court in late March in West

Coast Environmental Network Inc v West Coast Regional Council [2013] NZEnvC 47 had provisionally dismissed the environmental groups’ appeals against the substantive matter of the grant of resource consents, but this decision was subject to the Supreme Court’s determination on the relevance of the end use of coal.

SPRING 2013 21

6 West Coast Ent Inc at [86].7 At [72]–[74].8 At [74].9 At [97].10 At [151].

11 At [85].12 At [142].13 At [77].14 At [153].15 At [169].

principal Act. As such, the effect of s 23 of the Interpretation Act 1999 (“[a]n amending enactment is part of the enactment that it amends”) was not sufficient for s 3 of the 2004 Amendment to be incorporated into the Resource Management Act. The Chief Justice said that s 3 of the 2004 Amendment was, instead, relevant to the Court’s interpretation and understanding of the scheme introduced by that amendment. In the Chief Justice’s view, s 3 of the 2004 Amendment did not affect the deci-sion on the meaning of s 104(1)(a) of the Resource Management Act.6

Elias CJ considered that there was nothing in the Resource Management Act to exclude the fact that emissions generated from burning the coal would contribute to climate change, as an “actual and potential” effect of the activity, particularly nothing excluding it from s 104(1)(a).7 She noted that the term “environment” used in s 104(1)(a) included “ecosystems” and, in turn, must include “the single ecosystem which makes the phe-nomenon of global climate change possible”.8

The majority also recognised that s 3 of the 2004 Amendment was not incorporated into the principal Act and because of this, it did not open and shut the book on the appellants’ cases.9 While the majority rejected the appellants’ “literal approach” to the interpretation of the relevant provisions, including s 104(1)(a) of the Resource Management Act, they noted that on its face, the general language of the section “appears to be broad enough to at least permit West Coast ENT and Forest and Bird to lead evidence as to the effect on climate change of the burning of the coal which is to be won”.10

The implications of the 2004 Amendment was at the heart of the case before the Court and thus the minority and majority judgments considered the legislative history at some length.

There was a strong level of disagreement between the majority and minority about the extent to which the parliamentary history materials supported the opposing parties’ arguments. Elias CJ considered that the parliamentary materials “stress[ed]” that climate change effects would

still be considered in land-use and non-discharge planning and consent processes.11 The majority stated that the history gave “mixed signals”, which proved a challenge for a simple resolution to the case.12

Elias CJ also considered that excluding consideration of the end use of coal would undermine the assessment of the proposal on sustainable management principles in line with s 5 of the Resource Management Act.13

The majority decision appears to have taken a narrower approach to the issue and instead emphasised “a pragmatic and logical approach” to the application of the 2004 Amendment by testing the “plausibility and workability” of West Coast Ent Ltd’s arguments through a series of “examples”.14 After considering the examples, the majority concluded that a literal interpretation of the 2004 Amendment would produce anomalous outcomes and place regional councils in the position of regulating indirectly on what it considered had been left to central government.15

Commentary

On the face of it, the decision provides the clear precedent required, in a reasonably concise presentation. However, on closer examination, it may be considered that the door is still open for the same kinds of issues to continue to be debated, affecting the efficiency of the resource consenting process. This is because this case (principally) concerned the declarations sought, limiting wider applicability of the principles. Additionally, and perhaps surprisingly, it may be that the majority decision has the effect of leaving the door open for similar kinds of arguments in other matters by noting that the wording of s 104(1)(a) of the Resource Management Act potentially allowed the appellants to lead evidence on their literal interpretation in a consent hearing, even though the majority clearly did not favour that interpretation.

22 YLC ADVOCATE

YLC Oktoberfest

This October, in homage to Munich’s Oktoberfest, the YLC treated 50 young

Wellingtonians to a spectacular evening of local craft beer and sumptuous food.

Inconspicuously dressed in lederhosen and dirndl, a “bevy” of beer connoisseurs arrived at the Fork & Brewer to taste the night away. The evening got off to a great start thanks to our two wonderful hosts. The renowned Wellington beer writer, Neil Miller, and the inimitable Fork & Brewer head-chef, Anton Legg, both delighted with their intricate knowledge of all things brewed.

Guests enjoyed five rounds of magnificently matched craft beers and foods, ranging from an Emerson’s Bookbinder matched with Corn Beef Hash-Browns and an Oak Aged Hollandaise, to a traditionally sour Timmerman’s Framboise Lambic matched with Spent Grain Crackers, Emmental Cheese and Quince Paste.

It was great to see everyone get involved in the Best and Würst dressed competition too. A special shout out to our winner Jess, who looked very sharp as a giant green beer-bottle, and a disappointing nod to our worst dressed Joe! Also a commendable mention must go to the one-and-only Richard, who showed immense courage by squeezing into those tight leather shorts and showing up late.

Afterwards, attendees revelled in cheap pints, fantastic company, and some foot stomping, thigh slapping German Oompah music. A great time was had by all.

Big thanks must go to Neil, Anton and the Fork & Brewer team for host-ing a fantastic evening. Thanks also to Simon, Ian and Heléna, for all their efforts in helping to organise such a successful event.Can’t wait to see you all again next year — Prost!

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SPRING 2013 23

Government Legal Network and

YLC “Serving the Crown” Drinks

On Thursday 31 October, the Young Lawyers’ Committee (YLC) and the Government

Legal Network (GLN) hosted the inaugural “Serving the Crown” event.

This event targeted young lawyers who work in and around the Crown to network with their colleagues. It was also a great opportunity to hear speeches from the Attorney-General, Hon Chris Finlayson QC, and Solicitor General, Mike Heron QC. The Attorney-General engaged the crowd as he talked about the importance of working together for the Crown and the interesting and diverse work that public lawyers under-take. The Attorney-General talked about upholding the rule of law and the importance of the work of the Parliamentary Counsel Office. He also talked about how the GLN is a useful tool for public lawyers and encouraged everyone to make good use of it and to sign up. Next up was the Attorney’s “junior”, the Solicitor-General, who described his career. It was interesting to hear about his overseas employment and work in private firms before taking up his current role. Before and after the speeches, the Attorney-General and Solicitor General introduced them-selves to everyone and enjoyed drinks and canapés in a relaxed environ-ment. Attendees enjoyed mingling and meeting new colleagues and the National Library was an excellent venue for such an event. This was the first time the GLN and YLC had collaborated on an event and no doubt it will be the first of many.

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24 YLC ADVOCATE

Proponents of this type of funding for a representative or class action argue that the ability to seek litigation funding ensures “claimants a convenient and risk-free ability to pursue their claims”.3 This is attractive, at least for those initiating law suits, to ensure that they get the people signing up (as claimants) and that those claimants can then have their case heard, with no other effort or involvement on those claimants’ part. However, the flipside of funded litigation is that the funder will ultimately get a percentage of any successful award, in circumstances where the funder is not (generally) assisting the litigation out of any real concern for those plaintiffs. At least in the United States, it appears that it is the funder and the plaintiff’s law firm who often see the greatest gains, rather than the actual claimants.4

Third party litigation funding can also be used in general civil actions, which has its own particular potential minefield of issues. While third party litigation funding has not had much attention in New Zealand, the practice has become widespread internationally — especially in Australia, Canada and the United Kingdom.5 It has even generated a 158 page research report from researchers at the University of Oxford and Lincoln University.6

Unlike in other jurisdictions, analysis in New Zealand regarding third party litigation funding appears to exist on a more case-by-case basis by the courts, rather than the subject of any government intervention. In contrast to the United Kingdom, New Zealand has not developed a detailed regulatory regime (for example, in the United Kingdom there is a Code of Conduct for Litigation Funders). The New Zealand Supreme Court has also explicitly stated that “it is not the role of the courts to act as general regulators of litigation funding arrangements. If that is considered desirable, it is a matter for legislation or regulation.”7

In that vein, the Supreme Court recently delivered its judgment in Waterhouse v Contractors Bonding Ltd.8 Rather than a representative ac-tion, the facts in Waterhouse concerned whether the Waterhouses were required to disclose the details of their third party litigation funding agreement to Contractors Bonding Ltd, and on what terms they would be required to do so. The Waterhouses had taken action to sue the American-based Contractors Bonding Ltd in relation to a failed insur-ance business. The judgment expressly noted that it was not making comment on the Court’s approach to third party litigation funding in a representative action.9

Before the Supreme Court judgment, the High Court and the Court of Appeal had both taken different angles to the disclosure of third party funding arrangements. Each Court, however, still required disclosure of the funding agreement in the first instance — either to the court (as held in the High Court 10) or to the other side as a redacted version showing the principle terms (as held in the Court of Appeal11).

Case Note of a Recent Supreme Court

Decision on Third Party Litigation

Funding: Waterhouse v Contractors Bonding Ltd

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Helen ArathimosS OL IC I TOR AT B U DDL E F I N DL AY

Third party litigation funding is a common way in which civil plaintiffs are funded in overseas

jurisdictions. However, it is a much more recent phenomenon in New Zealand — gaining media prominence most recently in the “Fair Pay on Fees: Bank Fees Class Action”1 case, which is being funded by Litigation Lending Services.2

3 Fair Play on Fees “The Claims” (26 September 2013) <www.fairplayonfees.co.nz>.4 See, for instance, the opinion of Stacey Shortall: “In my experience in the US where group

litigation was brought, the party that often did best out of that was the funder and the plaintiff’s law firm involved. There is a lot of statistical analysis in those US type actions with plaintiffs only getting cents on the dollar so they become a conduit for others to benefit”: Gareth Vaughan “As group prepares to sue ANZ over exception fees, senior lawyer warns litigation funder and plaintiff’s lawyer usually the big winners in such cases” (19 June 2013) <interest.co.nz>.

5 C Hodges, J Peysner and A Nurse “Litigation Funding. Status and Issues” (Centre for Socio-Legal Studies, Oxford and Lincoln University, 2012) at 38.

6 Hodges, Peysner and Nurse, above n 5.7 Waterhouse v Contractors Bonding Limited [2013] NZSC 89 at [28].8 Waterhouse, above n 7. The Supreme Court also noted that while Chambers J died prior

to the judgment being delivered, the other Judges decided under s 30(1) of the Supreme Court Act 2003 to continue the proceeding to judgment.

9 The Court notes that this has already been discussed in the Feltex shareholders’ repre-sentative action: Saunders v Houghton [2009] NZCA 610, [2010] 3 NZLR 331 at [79].

10 Waterhouse v Contractors Bonding Ltd HC Auckland CIV-2010-404-3074, 13 December 2010.

11 Contractors Bonding Ltd v Waterhouse [2012] NZCA 399; [2012] 3 NZLR 826 (CA).12 Waterhouse, above n 7, at [70].13 At [76].14 At [73].

1 Note that there is currently no class action regime in New Zealand (as it exists in some other jurisdictions). Rather, the present case is a representative action where customers of the banks must sign up individually. The draft Class Actions Bill has currently been before the New Zealand Parliament for four years.

2 The first “test case” being filed against ANZ Bank New Zealand in the High Court at Auckland in June in 2013, with further banks to follow. For more general information, see Fair Play on Fees <www.fairplayonfees.co.nz>.

SPRING 2013 25

First, as mentioned above, the Supreme Court held that it is “not within the function or within the competence of the courts to provide any gen-eral regulation of litigation funders”12 and “nor is it the courts’ role to assess the fairness of any bargain between a funder and a plaintiff”.13 Essentially, if it becomes necessary, Parliament itself should intervene in these types of arrangements.

Secondly, rather than the upfront disclosure of principle terms in a redacted version of the agreement, the Court held that (subject to confidentiality and privilege issues, and not disclosing things that may give a tactical advantage to the other side)14 disclosure of the agreement is only relevant where the non-funded party makes an application to which the terms of that agreement are relevant, which may include:15

(a) security for costs against the plaintiff;(b) costs against the plaintiff; or(c) application for a stay on abuse of process grounds (in certain

circumstances).16

Nonetheless, on issuing proceedings funded by a third party litigation funder (noting that this party must be unrelated, with no prior interest in the proceeding, who is standing to gain financially from the success of the proceedings and/or has the ability to exercise control of the proceed-ings)17, the funded party must disclose to the non-funded party the iden-tity and location of the funder, and whether the funder is amenable to the jurisdiction of New Zealand courts.18 The Court justified the disclosure of these facts as inherently related to whether a non-funded party can make a fully informed decision in respect of applications under (a)–(c) above.

However, disclosure is still restricted to those bare facts, and the Court expressly stated that it did not consider that the solvency or financial standing of the funder as a relevant fact to disclose (as was held in the Court of Appeal), such fact tending more towards the regulation of such funders.19 This is an interesting point, given that the financial standing of the funder would likely be one of the facts that a non-funded party would probably be most interested in.

The Supreme Court also stated that there should be no obligation to disclose the terms on which funding could be withdrawn (as was also held in the Court of Appeal). This was seen as more “tactical” information, and whether a plaintiff would be left “high and dry” when funds run out (or are withdrawn) was seen as a legitimate concern for all defendants in litigation, and not something unique to a third party litigation funding situation.20

In Waterhouse, the Court appears to be retreating from the view of third party funding agreements in the High Court and Court of Appeal as something unique or unusual, requiring the protection of the courts.21 This is expressly left for the jurisdiction of Parliament. However, the Court is also quick to reiterate the concerns felt globally regarding such litigation funding: 22

(a) it cannot be so easily justified by “access to justice” principles. Funders will generally only fund the claims that will bring a projected return — so it is “not a general panacea to rising costs of litigation and resulting access to justice concerns”; and

(b) counter to that, it is not available to defendants, and therefore potentially brings “disparity in resources” and may “exacerbate the risk of defendants being faced with unmeritorious claims and forced into unjustifiable settlements”.

Whether Parliament does see fit to step in and regulate third party litigation funding arrangements is likely to depend on whether we see the wide-spread concern and detriment like, for example, in the United Kingdom.23 At this point, the impact of these arrangements in New Zealand still sits at the minor end of the scale. It remains to be seen whether that is related to our generally less litigious nature, or whether the value of our cases are just not attracting the various hedge funds and commercial litigation funders that operate more widely in the United Kingdom, the United States and Australia.

15 At [73].16 At [56]–[57].17 At [76] and [24].18 At [76].

19 At [70].20 At [55] and [71].21 See, for example, at [28] — although it is noted, again, that the Court was not commenting

on cases of representative action.22 At [41]–[42].23 See Hodges, Peysner and Nurse, above n 5; and the United Kingdom Ministry of Justice

“Proposals for Reform of Civil Litigation Funding and Costs in England and Wales” (March 2011) CP 13/10.

Ala

n L

igh

t

26 YLC ADVOCATE

Internships in Europe have a bad reputation. Although the majority of internships are interesting and educational, a growing number are ei-ther just cheap replacements for regular staff in disguise or simply dead boring. In the worst cases, interns are seen as minions, only good for making coffee, washing dishes or operating the copier. Fortunately it is quite the opposite when it comes to internships at Community Law Wellington and Hutt Valley (CLWHV), as four European interns have recently experienced.

Marianne (27), from Erlangen, Germany, was excited to do her legal traineeship in New Zealand because she had already visited the country as a tourist. This year, she came back to gain professional legal work experience. “It’s amazing to have the chance to get an insight into many different areas of law while attending the free legal advice sessions of CLWHV or working on education projects. I found unique New Zealand institutions like the ACC and the Māori Land Court unusual and very interesting.”

Marianne was lucky to find a great place to stay during her internship at CLWHV. “I was sharing a house with kiwi students and young pro-fessionals. Living in this situation offered me a perfect opportunity to catch a breath of everyday kiwi-life in a very personal way. I especially enjoyed the way people here handled the two strong earthquakes in July and August: after being evacuated from the [central business district], everybody went home to their safe wooden houses, now and then jump-ing under the table if necessary, and having a special ‘aftershock-drink’ together.” Many entertaining surprises are waiting for a foreign intern in New Zealand.

Jan (28), from Regensburg, Germany, previously worked at a small law firm that specialised in criminal law. “After finishing my training as a lawyer, I wanted to focus on criminal law. I wanted to have an insight into a foreign criminal system, because that way I hoped to see the German criminal system in a different light. During my internship, I was able to work together with a community lawyer, who focussed pre-dominantly on criminal law, as well as legal issues regarding prisoners.” But there is also another reason why Jan came to New Zealand. “I am a

Felt it? Quake-rattled Internship at Community

Law Wellington and Hutt Valley

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Four European legal interns discuss their experiences working at Community Law

Wellington and Hutt Valley

huge fan of Lord of the Rings! On one of my first nights in Wellington I was going out with some friends and a guy joined us at our table. He was very funny and even treated us to some drinks. It took me a while before I realised that he was James Nesbitt, an actor who plays one of the dwarfs in The Hobbit. That was a really nice experience!”

Irene (29), from Italy, decided to resign from her legal job and come to New Zealand because she wanted to improve her English and experience new ways of living, thinking and working. “When I arrived in Wellington about five months ago, I didn’t have a place to stay or a job, and I didn’t know anybody. But step by step, I found a place to stay, met some friends and finally got a part time job as well as an internship at CLWHV. The internship gave me the opportunity to continue being immersed in a legal field and working on legal issues.” Irene acknowledges that her New Zealand experience changed her perception of Europe. “For the first time in my life, I have been feeling like a true European. Back in Europe, I always considered myself more Italian than European. Europe was nothing more than a label without any meaning to me. Now that I have met a lot of other European interns, and we are all far from home, our European origin is our common bond.”

Daniel (31), from Hamburg, Germany decided to do an internship at CLWHV because he wanted to improve his English legal skills and also gain some experience working face-to-face with clients. “My last internship at a medium-sized law firm in Germany was quite interesting, but during my four months there I hardly saw any clients. In contrast, at CLWHV my supervisor took me with her to CLWHV’s free legal advice and outreach sessions, and I was even allowed to do some client work on my own.” One thing Daniel wasn’t aware of until he arrived in Wellington was the challenge he would face in finding affordable accommodation. “I was very lucky that I was offered the chance to stay at the home of some New Zealand friends of mine, whom I met during their stay in Germany. They gave me a very warm welcome and provided me with a wonderful example of New Zealand hospitality. I would love all interns at Community Law Centres to have the opportunity to experience living in a New Zealand home situation. I am sure it would encourage international friendship as well as be beneficial for all in practical ways. I know my hosts definitely enjoyed my German cheesecake recipe.”

All interns agree that they had a great time during their internships and they would recommend doing an internship with CLWHV to other stu-dents back in Europe. Each intern’s experience is different depending on the area of law that their supervisor is engaged in and the work that their Community Law Centre does. Daniel will miss a lot of things he got used to while being in New Zealand, but with one exception. “Experiencing an earthquake once is exciting, especially if it didn’t cause any severe damage. But I could have done easily without the second one in August. Sometimes less is more.”

For more information about the CLWHV, please visit www.wclc.org.nz.

Left to right Cameron Madgwick (Chair of Community Law Board), Marianne Dorfner, Jan Luehmann, Daniel Valdini.

SPRING 2013 27

YLC MAS Basics of Investment

Seminar: Real Estate

and Property

On Thursday 19 September 2013, MAS, a sponsor of the YLC, presented the second

instalment in the Basics of Investment Seminar series: the “Basics of Investment

Seminar: Real Estate and Property”.

Bridging the Gap Dinner and End of

Year Drinks

The Bridging the Gap mentoring programme has finished the year on a high with a dinner

and end of year drinks.

The event featured speakers from MAS Financial Services, ANZ Bank and Tommys Real Estate. The evening started at 5.30pm at Russell McVeagh with a game where the audience participated in a simulated tender process for purchasing a house. Neville Saunders from MAS then presented on Kiwisaver and how it relates to first home-buying, as well as advice on obtaining general, income and life insurance. Jo Anne from ANZ spoke about the pre-approval and general application process for purchasing a home, and how different property types have different re-quirements for mortgage financing. Kiri from ANZ discussed different types of loans. Finally, Jane Johnson from Tommys Real Estate gave ex-amples of different property types in Wellington. The YLC is grateful to MAS, Russell McVeagh and all the speakers for their support.

On Tuesday 17 September the Bridging the Gap dinner was held. The event was hosted at Joe’s Garage where the mentors and mentees were provided with great service and delicious burgers! Thanks to our gen-erous sponsorship from IPLS the mentors and mentees each got $10 discounted off their meal. The evening was a great chance for mentors and mentees to meet in an informal situation, and get to know each other better, as well as giving them the chance to meet other mentors and mentees. Some mentors and mentees took the opportunity to get to know each other even better by finishing the night off at El Horno for a dance and some sangria.

On Tuesday 8 October the end of year drinks for Bridging the Gap were held at Foxglove. It was another excellent night of mingling with other mentors and mentees, food, and drinks. Thank you to everyone who participated in BTG this year, both the mentors and mentees got a lot out of it. We hope that everyone gets involved again next year!

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28 YLC ADVOCATE

The moot final took place on Thursday 24 October at the Old High Court before a panel of three Supreme Court Judges: William Young, Glazebrook and Arnold JJ.

The finalists were Sean Conway and Matt Dodd, judges’ clerks at the High Court, as counsel for the appellant; and Edward Greig and Hugh McCaffrey, solicitors at Bell Gully, as counsel for the respondent. It was a close and exciting match, with the respondents being declared the champions of the mooting competition at a prizegiving ceremony hosted at Thorndon Chambers. When announcing the result, William Young J praised the high standard of the advocacy, emphasising that he was “heartened” for the future of the legal profession.

The moot final and prizegiving ceremony brought the NZBA/YLC Mooting Competition to a successful conclusion. The mooting competition took place over two months, beginning in early September, when the participants received the moot problem and attended a training session run by Karen Clark QC and Matthew Smith of Thorndon Chambers. There were three rounds of moots in the competition.

Jamie Grant, the Convenor of the YLC, explained that the YLC had decided to organise a mooting competition to give young lawyers the opportunity to practise the craft of advocacy and to appear before real judges. He also thanked the many organisations and individuals who had supported the competition. These organisations and individuals included: the NZBA as the sponsor of the competition, Thorndon Chambers for hosting the prizegiving ceremony, the Wellington High Court and the Supreme Court for providing court rooms for the moots, the Wellington High Court library for lending the participants robes, Bell Gully for assisting with developing competition resources, the Institute of Professional Legal Studies for offering its premises for use by the participants, and Chris Ryan from Council Brief as the official photographer for the moot final and prizegiving ceremony. At the prizegiving, Tim Castle spoke on behalf of the NZBA, and David Goddard QC spoke on behalf of Thorndon Chambers.

As the co-ordinator of the mooting competition, I am thrilled with its success. This competition has involved the work of many people. I am grateful to my organising committee of 10 people, the 24 participants in the competition, the 21 judges who adjudicated the moots, six barrister/lawyer mentors who coached the semi-finalist and finalist teams, five registrars and many others who provided us with advice in the design of this competition. The mooting competition has brought together many different people in the legal profession, including young lawyers, barristers, judges and other lawyers.

The YLC would love to see the mooting competition become a regular fixture of the Wellington young lawyers’ calendar and to encourage the expansion of the competition to other regions in New Zealand. The YLC is especially grateful to the NZBA for its encouragement and support.

The moot judgment, authored by Tim Cochrane, is available online from the “NZ Bar Association/YLC Mooting Competition Final 2013” page at www.younglawyers.co.nz.

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New Zealand Bar Association/Young Lawyers’

Committee Mooting Competition 2013

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In what circumstances is it reasonable to expect naked photographs of yourself uploaded onto

Facebook to remain private? This was the question grappled with by the finalists of the inaugural New Zealand Bar Association (NZBA)/ Young Lawyers’

Committee (YLC) Mooting Competition 2013.

Elizabeth ChanC O- OR DI N ATOR OF T H E N Z BA/ Y LC

MO O T I NG C OM P E T I T ION 2013

SPRING 2013 29

30 YLC ADVOCATE

It seems obvious why we see their smiles glinting at us down the camera because, as our nearest neighbours, there is clear relevance in under-standing what is happening in Australia. One consequence of our close ties with Australia is increasing moves to harmonise our legal systems in many respects. Yet, how much do we learn about the Australian legal system at law school?

New Zealand has integral connections with Australia. If you open The New Zealand Oxford Dictionary (which I do more than I care to ad-mit) there are three definitions for “trans-Tasman”: first, crossing the Tasman Sea (“trans-Tasman flights”); second, conducted between New Zealand and Australia (“trans-Tasman trade”); and third, New Zealand Australian (“our trans-Tasman neighbours”). “Trans-Pacific” does not enjoy the same level of familiarity. Australia is frequently a topic of con-versation. Abbott in particular has been a regular focus of my Facebook friends’ ire.

Yet as I paused to think about Australia and learned a little more about the Australian electoral process it dawned on me that I know little about how the Australian legal system operates. I could not tell you wheth-er the New South Wales Court of Appeal hears appeals from the New South Wales Supreme Court, or vice versa. I do know the highest court in Australia is the High Court of Australia, but anything beyond that and I would need to phone a friend. If you were to ask me to name the Australian Chief Justice, I could perhaps hazard a guess after asking the audience. And I don’t think that I am uniquely ignorant. At drinks with a cluster of young lawyers last week, we broached the most scintillating conversation topic of naming the judges of the High Court of Australia and struggled to name more than two.

Who is the Chief Justice of Australia?

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Tony Abbott and Kevin Rudd spent a good deal of time on the news in early September 2013 campaigning in the Australian general election. Each day we saw Rudd’s cheerful

face belying Labour’s slipping polls, and Abbott smoothing over another gaffe.

David GreenJ U D G E’ S C L E R K AT T H E

C OU RT OF A P P E A L

Much of this information is readily ascertained with a quick Google: Wikipedia says the New South Wales Court of Appeal forms part of the Supreme Court of New South Wales and hears appeals from the Supreme Court (among others); and the current Chief Justice of Australia is Robert French – if you’re interested, Google the other members.

I do not necessarily consider it hugely important to be able to name judges (I wonder how many young lawyers could name the judges of the New Zealand Court of Appeal?) but I believe there is a general lack of knowledge about the Australian legal system among New Zealand law-yers. For one thing, it would be good to know how a federal system oper-ates, which would be helpful with the United States and Canadian legal systems too. Yet beyond that basic point there are several other reasons to know more about Australia.

First, we have the common law in common. The breadth of Australian law that has been considered and accepted by New Zealand courts is vast. Every week, counsel stand up in court and encourage New Zealand judges to follow Australian authority. Judges often consider the Australian position to be highly persuasive in the New Zealand context. It would be embarrassing if you cited a New South Wales Supreme Court decision as more persuasive than it was.

Second, much of our legislation is adopted from an Australia coun-terpart statute. For instance, New Zealand’s voluntary administration regime for companies in financial distress is based on the Australian model. Indeed one of the reasons behind the change was explicitly to “ensure that the New Zealand insolvency law regime is coordinated with that of Australia”, according to the Insolvency Law Reform Bill’s explan-atory note.

Third, many New Zealanders live in Australia. If my sister goes to gain wealth from toil-ing Australia’s golden soil, what employment protections does Australia offer her? What hap-pens to her Kiwisaver? Does she pay more to go to the doc-tor? The close ties between New Zealanders and Australians mean that it is important for law-yers to be aware of Australian law in order to be able to provide fully contextual legal advice.

These are all googleable things, of course. I’m not suggesting we need to learn masses about Australia. I just reckon it would be helpful to know more about what is happening across the Tasman Sea. It is of impor-tance to understand how those countries closest to Aotearoa operate. As the ties that bind New Zealand and Australia are increasingly strength-ened, our legal education should reflect that. It seems incongruous to sit alongside a big country with, in many ways, a remarkably different institutional structure from our own and to know so little about it.

The current Chief Justice of Australia is Robert French CJ

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SPRING 2013 31

There are numerous roles open to New Zealand lawyers wanting to work overseas so make the move now – gain international experience, increase your earnings and travel the world!

Through our global network of JLegal offices, we recruit lawyers with the leading law firms and corporations in the Australia, UK, US, Asia, Middle East, North & South America and the Offshores (including Cayman Islands, BVI, Channel Islands, Bermuda, Luxembourg and Malta).

For a confidential discussion about making the leap overseas, contact Damian Hanna today at damian.hanna@jlegal.com.

Your next career leap – made easy by JLegal.

New Zealand

Singapore

Middle East

ChinaLondon

Australia

Hong Kong

new zealandlevel 1, 124 willis street, wellington t | +64 4 499 5949

www.jlegal.com find jlegal onnew zealand melbourne sydney london singapore uae hong kong

JLegal were formally know as Simply Legal.

32 YLC ADVOCATE

www.younglawyers.co.nz