Canterbury tales Canterbury tales

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