reacting to a complaint

Canterbury tales

Canterbury Westland Branch New Zealand Law Society June 2015, Vol. 21, No. 5

Canterbury talesReacting to a complaint

This is the first in a series on theNZLS complaints process. Nextmonth we will look at the Early

Resolution Service (ERS) andthe 0800 number.

A lawyer on the receiving end of acomplaint may have a range ofreactions, not all of them helpful.Surprise, shock and anger might beamong the feelings that passthrough the mind of the lawyer.

Complaints Manager Paul Byers (right) sayseveryone reacts differently. One reaction all toohuman is to feel vulnerable and wonder ‘whatdo I do now?’ Sometimes the temptation is to,‘respond immediately’, but Paul thinks the bestcourse is not to ignore the complaint but thinkabout it for a couple of days and then write areasoned response.Check the response with a trusted colleague,to get some feedback. In particular, if you are asole practitioner, it can be important to talk withothers and get some perspective especially ifthe complaint is causing undue stress andanxiety.“Every law firm must have a mechanism fordealing with complaints. This is required by therules of conduct and client care. In large firmsthey may be directed to a particular partner, insmaller firms particularly sole practitioners theremay be an arrangement with someone outsidethe firm.“A practitioner’s own internal complaintsprocess really is the first layer of the complaintsprocess and an opportunity for the lawyer totry to resolve the issue. A good internal processmay resolve the matter so that ComplaintsService never has to be involved,” said Paul.“The large proportion of complaints come fromthe trusts and estates, property and family areasand underlying many of these is lack of clearcommunication. Many of the minor complaintsare essentially communication problems, andoften these can be resolved with an apologyor explanation. If you forget something, beproactive, sometimes an apology oracknowledgment and a correction will stop thematter needlessly escalating.“We use a triage system on receipt of acomplaint: three staff do an initial triage, andthe second triage is by one of the EarlyResolution Service (ERS) StandardsCommittees. These assess whether a particularcomplaint is capable of being dealt with by theERS. Of course, if there is any suggestion ofmisconduct the complaint would not besuitable for the ERS.”

Paul said the Lawyers Complaints Service staffmembers are not focused on the merits ofcomplaints as such, they are there to assist thestandards committees; it is the committeeswhich determine the merits.“Part of the focus of the ERS is on negotiation,whereas on the standard track process, theintention is to try to conclude the matterthrough a reasoned decision.”Paul says Standards Committees are made upof experienced lawyers and lay people withwide life and practice experience. He says it isimportant sometimes to have largercommittees in smaller centers so any conflictsof interest can be managed while retaining aquorum. “Members of committees work hardand try to turn their minds impartially to theinterests of both the lawyer and the client.“The Lawyers Complaints Service is impartial,fair and accessible. Staff are not driven by theoutcome — that is for the StandardsCommittees. I have confidence that the Servicewill impartially and transparently administer thecomplaint so that both sides can see theprocess, understand that certain actions havetaken place, know that the decision maker hasexamined the issues and the documentsconcerned, and has made an informed

decision. We try and do this as expeditiouslyas possible.”Lawyers also make complaints, indeed underthe rules they are required to report misconductif they suspect it. Such reports may be madeon a confidential basis and anonymity ispreserved where possible in such cases, saidPaul. If it cannot be preserved the maker ofthe report will be consulted with before anyaction is taken.Some complainants become confused whenlawyers do what they are supposed to do -represent a side. Particularly in family andestates matters, complainants may see lawyers’statements as personal attacks on them.“Lawyers have great respect for language, andsometimes members of the public or clientsthink they are being attacked personallywhereas the lawyer may just be ‘lawyering’.Lawyers also act on instructions which may leadthe person on the other side to think the lawyerpersonally holds the views they are espousing.When in fact the lawyer is doing their best toprofessionally represent their client and followtheir instructions and may have no personalview on the matter in which they are actingon,” said Paul.The 0800 number is useful in these caseswhere such matters and misconceptions canbe discussed with the member of the public.“Another problem area is when complaints areso tied up with legal proceedings that acommittee may decide it cannot move untilthe action works its way through the courts.These are reviewed regularly but committeesare focused on the conduct of the lawyers - itis not another court. They cannot interfere inthe legal process.”Paul suggested the following framework mightassist in responding to a complaint:1. Wait for a couple of days before responding,think about it, consult and then write a reasonedresponse.2. Make sure you focus on the substance ofthe issues rather than the surroundingcircumstances.3. Include a time line; this is useful for thecommittee and helps to put things inperspective; don’t take important things forgranted.4. Be consistent in your response.5. Attach all relevant documents.6. Consider talking to another lawyer/colleague,ask for advice and feedback on a draft response.

Reprinted from Council Brief

Canterbury tales2 Canterbury tales2

President’s ColumnVino FinoPhoto Caption

The winning entry for last month’s picture(below) was submitted by Michael O’Regan.

“How many lawyers can you fit inthe dock ... surely one more.

Each month we have a photo captioncompetition where we invite you to submit acaption. The winner will receive two bottles ofwine sponsored by Vino Fino (www.vinifinoco.nz,188 Durham Street). Send your entry to theCanterbury Westland Branch New Zealand LawSociety, P. O. Box 565, Christchurch. Or emailto [email protected]. Allentries must be received by July 9 2015. Thewinner will be announced in the next editionof Canterbury Tales.

Dear Colleagues,

Notes about CommitteesThe various new committees in the CanterburyWestland Branch are underway and planningthe events and activities for the coming year.It is astonishing to note the large number ofpractitioners involved in these committees andthe time commitment being made by so many.It is a barometer of the good health of thisbranch. To those people who are serving oncommittees, we give our grateful thanks.I also wish to thank many practitioners whohave served on local and national committeesover a period of many years. Your knowledgecombined with hard work has added greatvalue to the practice of law by the localprofession.Notes about children in theFamily Court* I was lawyer for a child interviewing a verysmall five-year-old girl who had on severaloccasions, indicated that she wanted to changeher care arrangements. What she wanted wasto stop living most of the time with her mumand instead to live with her dad, which was asurprise for mum.During my second visit to the school to talkabout her views, the interview concluded -Q: What do you think is best about dad’s place?A: It is because he is there.* I was lawyer for child in a defended hearingto determine a change to contact arrangementsfor an eight-year-old girl. The mother was self-represented and had been unable on the dayof hearing, to arrange a caregiver for her five-week-old baby and her four-year-old daughter.They were present in court. The hearing didnot concern those children who had their ownindividual fathers. (The choice of the favourablegenetic material by the mother was still anunsettled issue).As the hearing commenced the baby slept andthe four-year-old girl behaved very well andsat in the back of the courtroom. However afterabout an hour she asked me if she couldoccupy the seat next to me — we shared thesame water jug. She then quietly and politelyasked me -Q: When are they (that is the adults in Court)going to talk about me?A: Hopefully never sweetheart.* I was lawyer for a child in a dispute relatingto the day-to-day care arrangements for twogirls, one aged six and the other four. Thisrequired a visit to the home of the father wherethe girls lived. We drew pictures of mum anddad’s houses including bedrooms, establishedwho slept where, and identified those whocame to stay some nights and where they slept.This is always a revealing and helpful topic tocover. During this time the children said howmuch they enjoyed staying with their

grandmother some weekends which promptedthe following:Q: How old is granny do you think?A: I don’t know.Q: Do you think she could be 150?A: No. She is WAY older than that.District Court NotesRecently in the District Court Mr GrahamCoumbe was appearing for a client whosedrinking issues interfered with his driving. Thiswas apparently habitual. Mr Coumbe wasmasterful in his putting all submissions thatcould reasonably be thought up before thepresiding judge. One matter clearly advanced(as I and other present heard it) was that theillustrious man in the dock was a “hospitalitycoach”.I had never heard of such an occupation butimmediately saw that there was a useful andpleasant life beyond the law and cookingchutney. I thought I had enough flare and talentin this area and resolved to consider it further.By contrast I reached a firm view that the manin the dock was quite unsuitable.It was my great fortune at that time to be sittingnext to our esteemed and learned friendRichard McGuire — that star of public relationsat the Public Defender’s office, a man of vastknowledge and wit.

Continued Page 10

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Canterbury tales 3

The Property (Relationships) Act1976 (PRA) was amended in 2002.Since that time, with both increaseduse of technology, and overseastravel, there has been an unresolvedissue as the execution of section 21agreements.Can such agreements validly be executed byeither party (or indeed both parties) and theirlawyer(s) via Skype/Facetime/webcam?There has been a growing divergence in opinionamongst the profession as to whether or notuse of Skype is acceptable in terms incompliance with the PRA.Requirements for a binding section 21agreementSection 21F of the PRA provides that anagreement under s 21 will be void unless thefollowing requirements are complied with: -a) The agreement must be in writing, and signedby both parties;b) Each party to the agreement must haveindependent legal advice before signing theagreement;c) The signature of each party to the agreementmust be witnessed by a lawyer;d) The lawyer who witnesses the signature of aparty must certify that, before the party signedthe agreement, the lawyer explained to that partythe effect and implications of the agreement.Section 21H provides that even if the agreementis void for non-compliance of thoserequirements, the Court may still declare thatthe agreement has effect “if it is satisfied thatthe non-compliance has not materiallyprejudiced the interest of any party to theagreement”.

The issue for practitioners is that if anagreement is executed by Skype, do they runthe risk of the agreement being declared void,set aside and the practitioner sued.Family Law SectionIn 2009, the New Zealand Law Society FamilyLaw Section (FLS) considered the issue (havingreferred it to the Section’s Practice & Procedureand Relationship Property standingcommittees). The position of the FLS at thatstage, was that there was an implication thatwitnessing should take place in the physicalpresence of the parties and that usingtechnology such as Skype was not envisagedwhen the legislation was passed.One of the concerns raised by the FLS waswhether someone else might be present inthe room (and therefore duress at play).BrookersThe commentary in Brookers provides:“It would not be desirable for agreements tobe certified by video link or Skype in theabsence of an overseas lawyer sitting with theoverseas person. The purpose of s21F is toprotect the client. A prudent lawyer would wantto see the client on their own in a professionalenvironment where the client can be offeredfrank advice. If the client was only visible bycamera, there is no way of knowing who elsemight be present and what pressures mightbe brought to bear on the person signing theagreement.”Potential pitfallsSo what then, are some of the potential pitfallsin executing a section 21 agreement by Skype:-a) Issues of duress (who else is present in theroom when the agreement is being signed);b) How does the practitioner know that thedocument signed by the client is the actualagreement (given that the practitioner needsto certify they witnessed the client signing theagreement);c) How can the practitioner and the client becertain that the other party will not attempt to

have the agreement declared void under s21F.If I take the plunge, what do I need to know?To address the issues above, any agreement tobe executed this way could include the followingpractice:a) The practitioner could require the client toconfirm that there is no-one else present in theroom, at the time of execution and/or use thecamera to establish this (practitioner would takea file note of the same). Alternatively, instructan overseas solicitor to sit in on the appointmentwhere the agreement is executed simply so thatthey can certify to the practitioner that there wasno one else present;b) The agreement could include a clause “[PartyA] is executing this agreement with his/hersolicitor via Skype and has contemporaneouslysigned an undertaking to [Party B’s] solicitor thatthe document he/she has signed via Skype, isthe Separation and Relationship PropertyAgreement subsequently forwarded to his/hersolicitor”;As Party A signs each page of the agreement,he/she ought to immediately lift up the page tothe camera so the practitioner can confirm theyhave witnessed that particular page being signedby the client (as opposed to any other piece ofpaper);c) Include in the certification that “both partiesconfirm that they accept that the agreement isvalid, taking into account the execution bySkype”.Will it hold?It does not appear that there are any reportedcases on which a section 21 agreement hasbeen challenged for validity due to execution inthis manner, so unless or until that happens, itis a waiting game.

Ingrid Squire is a partner at Gifford Devinein Hawkes Bay and an experienced familylitigator. Republished with permission ofFamily Law Section’s Family Advocate. Firstpublished in Family Advocate Autumn 2014(Volume 15 Issue 3).

To skype or not to skype?By Ingrid Squire

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‘He who fails to planis planning to fail’By Scott Rainey

Both Benjamin Franklin andWinston Churchill have had theabove quote, or variations thereof,attributed to them.

As a fan of Churchill’s infamously pithy wit anda citizen of the Commonwealth I prefer toattribute it to him.In a previous article, I wrote that the secret to ahappy retirement is a steady source of income.As promised in that article, this one is aboutthe difference purposeful planning can maketo retirement.While, in principle, planning for retirementseems simple the reality is often much less so.The parametrisation of the factors that go intoplanning for retirement; when, how much, howmuch risk can you afford or do you need totake, for how long and what to leave as a legacycan be complex, but it is usually having theconversation, or more pointedly not, that provesthe real hold up.Often this is due to a lack of awareness of whatneeds to be considered.The key considerations that need to beaddressed during a good planning process are:* When do you want to begin drawing cashflow from your investments to fund yourlifestyle?* How long do you want to be able to fundyour lifestyle in retirement?* How much cash flow do you need to fundyour lifestyle in retirement?

* What legacy do you want to leave to yourbeneficiaries upon your death?* How much have you got saved for retirementnow?* How much can you save between now andwhen you want to retire?* How much risk are you prepared/requiredto take?* How certain do you want to be of retiringwhen you want in the level of comfort youwant?Some are easy, almost all investors prefer lessrisk to more (they certainly should) and mostknow how much they have saved for retirementalready, but others are harder.Having pondered the above investors mustthen prioritise what’s most important.Is it more important to retire on more or toretire earlier? The answers are often in conflict.In order to achieve some goals investors mayneed to compromise on some of the others.The role of a good financial adviser is to helpidentify which goals are most important and

what must be done to achieve them, includingany trade-offs that must be made.This involves ascertaining all of the parametersidentified earlier (when, how long, how much,legacy, savings, risk and level of certainty) andmodelling expected outcomes. At its best, thisis an interactive process and can take severaliterations before the most preferred scenariocan be found.The result is a roadmap to your retirement. Likeany journey, you’ll hit diversions and detoursbut if you follow the landmarks, and regularlycheck your progress to see if you’re still on track,you should reach your destination.If you’ve lost sight of your landmarks, or yourroadmap’s looking a bit tatty, contact one ofthe advisers at Bradley Nuttall for a secondopinion. It just might get you back on track.

Scott Rainey is an Authorised FinancialAdviser at Bradley Nuttall. Phone 364-9119.Website, www.bnl.co.nz. His disclosurestatement available on request and free ofcharge.

Comings & GoingsJoined firm/organisationAmy Watson (Buddle Findlay), Bridie McKinnon(Buddle Findlay, Wellington office), AnnabelRitchie (CERA), Leigh Simpkin (CERA).MovedRachelle Boulton (GD Horne to SB Law), AmyBayliss (Wynn Williams to Stephen vanBohemen, Barrister), Nicki Adams (Cordner Hillto Saunders Robinson Brown), Phil Payton

(Mortlock McCormack to Saunders RobinsonBrown), Casey Trowbridge (Corcoran Frenchto Saunders Robinson Brown).Left firm/organisationJamie Ling (Tavendale & Partners to LexisNexisPacific, Sydney).Changed statusJulia Graham now Barrister Sole as from 1 June.All details remain the same.

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Canterbury tales 5

Getting a grip on email

The winner of the “Who is This” photocompetition in last month’s issue was BevanStone. He receives a bottle of wine for beingthe first in with the correct answer of Hans vanSchreven.Thanks to everyone who sent us emailssuggesting who it was. Many of you got it rightand some of the other responses may deservea bottle of wine, like Hans “one of the Gibbbrothers” van Schreven and Ron Burgundy(Anchorman) look alike.Are there any more photos of our colleagues“lurking” around out there? If you have one toplace in Canterbury Tales send it [email protected] in case there are any doubts we are runningthe photo of a youthful Hans again.

Hands up if youhad Hans down

Do you find yourself overwhelmedat times by the number of emailsyou receive each day?

Do you seem to spend your day answeringemail queries as they arise, instead of beingable to focus on the work that needs to bedone?If so, you are not alone. Basex, a New York-based research firm found that most knowledgeworkers lose 28% of productivity due tointerruptions such as checking email, searchingthe web, instant messages and taking cellphone calls at work.At a recent webinar, Robyn Pearce timemanagement specialist from Getting a Grip,Auckland provided the following tips to save

time when dealing with email:* Reduce Interruptions: Turn of the alert. Thatway you will not be disturbed every time youreceive an email and tempted to check what itis about if you are less then engaged in whatyou are doing.* Choose your own priorities: Don’t makeemail the first thing you do each day. Insteadmake you own priority list for the day, thenclear your emails.* Check emails at intervals not all day:Chunk your email activity to 3-4 times a day.This means, have certain times in the day thatyou clear email but then spend the rest of thetime doing the work that needs to be done.This could be as simple as checking email afterevery job is finished.* Reduce emails: Consider whether email isthe best medium to achieve what you want toachieve? Are you likely to go back and forth onthe issue, would a phone call therefore be moreeffective? Change the way in which youapproach email, before sending an email askyourself these questions:Do I need to send this?

Can I deliver the message in person?Can I discuss this over the phone?Am I sending this email for the right reasons?If I must send it, am I copying in unnecessarypeople?Robyn also suggests that every now and thenorganisations should consider having a “ReduceEmail Week”.* Get to know your email system: This willensure that you are using the system to itsoptimum. Features such as using the click anddrag function to save re-typing, turning regularlyused phrases into signatures and convertingemails to tasks and calendars will all save time.* Organise your environment: Consider howefficiently you have set up your emailenvironment. Do you have folders andsubfolders for each major sub category? Treatemail like a physical filing cabinet. Clear outyour inbox each day putting the work to becompleted into its relevant folder, action,projects, reading etc.For further reading in this area, as well asmanaging the paper and officeenvironment, visit Robyn’s websitewww.gettingagrip.com.

By Ann Maria Buckley

Golden Homes Tel: 03-377 7940Graeme Odams Tel: 021-778 998Amelia Simpson Tel: 027-706 6207Denise Booth Tel: 027-295 4920

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As part of commemorative activities for the 800th anniversary of theMagna Carta the NZLS Canterbury Westland Library has a small display

of texts from the Library’s collection. Coke’s Institutes (1796) is theearliest text on display (above), Magna Carta uncovered by Anthony

Arlidge & Igor Judge (2014), the most recent. The framed copy of theMagna Carta is a reproduction of one of the ‘original’ copies held by the

British Museum.

CelebratingMagna Carta

Compass

Who will buy your business?

Do you want to grow your business?

Canterbury tales 7

Advice on A&I formsAs all property lawyers know,obtaining a client Authority andInstruction (A&I) is a key step in theconveyancing process.

The A&I form is a fundamental compliancerequirement for registration of propertytransactions via the Landonline e-dealingsystem, as it shows that proper authority hasbeen obtained and the necessary identitychecks undertaken for the purposes of s164Aof the Land Transfer Act 1952.It is an essential record for audit and compliancereview purposes. For these reasons, particularcare should be taken when preparing andcompleting A&I forms.The A&I forms set out in the NZLS PropertyTransactions and E-Dealing Guidelines (July2012) are endorsed by LINZ and have beendevised to assist practitioners in meeting theserequirements. They have also been adoptedfor the online A&I form templates which aremade available via Landonline.While the variable details may be modified andcompleted according to the nature and specificsof the transaction, the key elements of the A&Iform are there to address specific legalrequirements and should not be deleted oraltered, except as outlined in the followingcommentary.Modification of A&I — Section 4statementsSection 4 of the A&I form includes specificstatements the client giving authority mustconfirm when signing the document. In thecase of the A&I form devised for privateindividuals, this includes confirmation that theclient is not:* an undischarged bankrupt [see 4(c)]* subject to any order or management pursuantto the Protection of Personal and Property

Rights Act or any other legislation that couldrestrict their ability to deal with land [see4 (d)]In the case of the A&I forms intended for useby private or public corporates, the Section 4statements include confirmation that the client:* is not subject to any statutory managementorder or the appointment of a receiver orliquidator [see 4(d)]* has passed the necessary resolutions asrequired by its empowering constitution, rulesor statute [see 4(e)]The Section 4 statements are a necessary partof the A&I form and should generally beadopted and signed without modification. Aclient who is unable to confirm these mattersmay not have the requisite legal capacity toauthorise the transaction. There are somelimited exceptions:* If the transaction has been authorised by thereceiver or liquidator of a company the A&I formmay be modified accordingly. It should showthat the client company is in liquidation orreceivership and the statement in 4(d) maybe deleted. The name of the liquidator orreceiver should also be shown and evidenceof appointment attached.* If a Public Corporate A&I is signed by anauthorised officer of a government agency notsusceptible to statutory management,receivership or liquidation, or required to make‘resolutions ‘ when authorising transactions, theA&I form may be modified accordingly. Thestatutory or delegated authority under whichthe A&I has been signed should be stated andthe statements in 4(d) & (e) may be deleted.Execution of A&I by attorneyAs noted in the NZLS Property Transactions andE-Dealing Guidelines (see Section L), if an A&Iform is signed by an attorney on behalf of theclient, particular care must be taken both as tothe identity of the attorney and the currency ofthe Power of Attorney.If the client is a natural person, the ‘PrivateIndividual’ A& I form should be used, regardlessof whether the attorney is a natural person ora corporate entity.

This is because the Section 4 statements as toauthorisation and capacity relate to the clienton whose behalf the attorney is signing.Similarly, if the client the attorney is signing foris a corporate entity, then either the PublicCorporate or Private Corporate A&I form shouldbe used as appropriate.The A&I form should be modified as necessaryto reflect the attorneyship. A copy of the relevantPower of Attorney (if not deposited with LINZ)and certificate of non-revocation must also beheld with the A&I form.In the case of an Enduring Power of Attorneythe relevant certificates under the Protectionof Personal and Property Rights (EnduringPowers of Attorney Forms) Regulations 2008must also be held (i.e. the certificate of non-revocation and non-suspension, donor’switness certificate and health practitioner’scertificate).If the attorney is a natural person their identitymust be verified and evidenced in the usualmanner. Similarly, if the attorney is a privatecorporate the identities of its authorisedsignatories must be verified and evidenced. Ifthe attorney is a public corporate (like PublicTrust or The NZ Guardian Trust Company) theusual ID verification exceptions apply.Some general remindersA&I forms must be completed with all relevantdetails, including:* title references (a street address alone is notsufficient);* parties’ names (in full); and* details of base documents (e.g. nature anddate of agreement) before they are signed bythe client.A vendor’s A&I form must record the name ofthe purchaser, and should include the words‘and/or nominee’ if a nomination may occur. Ifa nomination then takes place, practitionersshould retain a clear paper trail evidencing thatthe nomination has occurred (for example, anysubsequent written advice or instructionsregarding the nominated transferee) along withthe A&I form.Particular care should also be taken whenpreparing A&I forms for the purpose ofregistering or surrendering easements, toensure the nature and extent of the easementis clearly described and can later be related towhat is ultimately registered. The A&I mustinclude, at a minimum:* the names of the other parties;* the references for all affected titles (includingdominant tenements);* the nature and purpose of the easement;* and the reference number for the depositedplan depicting the easement.

First published in TheProperty Lawyer

By Robbie MuirRegister General of LandIntroduction

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Case summaries (82)New Zealand’s legal research tool

When it comes ensuring the success of yourpractice the least costly approach still remainshanging on to the talent that already existswithin your practice. Give some thought tothe top 10 reasons why lawyers change firms(at any time):1. More money. 2. Better prospects. 3.Employer is unpleasant. 4. Current firmenvironment not acceptable. 5. Time for achange. 6. Relocation. 7. Returning from leave(maternity or otherwise) and employer notexpected to be sympathetic or offer flexibility.8. Changing part of caseload or work types.9. Redundancy. 10. Leaving the legalprofession.Clearly, more frequent and accurate salaryreviews, increased flexibility and improvedcareer prospects ensure that you willcontinue to prosper from your current staff.When locating top employees 47% of NewZealand employers place advertisements,43% use recruitment consultants and 29%their own personal networks. Significantly,employers use a variety of sources and while

technology solutions are key, so too areexternal solutions and personal networks.Why use recruitment consultants?It is a simple reality that in a similar vein toestate agents and selling houses it is easierand more effective to use recruitmentconsultants to fill a position than to advertiseit yourself.Fees for recruitment consultants that are dueonly when a candidate is successfully placedsuddenly make more sense.Recruitment consultants can also help in anumber of ways. Throughout the process youhave an independent voice for the candidateto speak to, and this is invaluable for you.Often firms do not realise how muchnegotiation and discussion has taken placeeven prior to sending out a CV. Candidateslike to be guided towards particular firms, andgiven advice on whether a firm is suitable forthem.Recruitment consultants aim to be impartialto both clients and candidates, givingstraightforward advice during the recruitmentprocess and assisting with any negotiationrequired. We take the strain away from youdealing with applications, as you will receiveCVs from us that match your job description.Salary ranges are also something we canassist with - often firms are not aware of otheroffers a candidate may have, and lose thechance to recruit a quality fee earner simplyby not offering sufficient money in the firstinstance. By using recruitment consultantsyou benefit from being aware of the salaryrequired to attract a particular candidate.Information technology may have foreverchanged the legal employment market, butthe new best practice in hiring is far from adigital-only approach.

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Cullen v R, Supreme Court, [2015]NZSC 73, 29 May 2015RECEIVING STOLEN VEHICLES —DIRECTION TO JURY — FORM OFCHARGEUnsuccessful appeal against conviction followingsecond jury trial in District Court on 15 countsof receiving stolen motor vehicles under s 246of the Crimes Act 1961 - at second trial theappellant charged with being a party to offending“together with Tamaki Metals Limited” whichowned the scrap metal business where the

stolen motor vehicles were located - form of thecharge dictated by earlier history of matter -present appeal relates to retrial followingquashing of appellant’s convictions at earlier trialin which he had been charged as sole party - onappeal of the earlier conviction, Court of Appeal’sview had been that since Tamaki Metals heldthe scrap metal dealer’s licence for the business,appellant could have only been guilty as a partyto receiving by Tamaki Metals - section 246(1)Crimes Act 1961 imposes liability on “every one”who receives any stolen property knowing it tohave been stolen or being reckless as to whetherit had been stolen - appellant was sole director

of company and manager of scrap metalbusiness - stolen vehicles were brought onto yardby three employees who had purchased them -case against appellant based on his actions andrecklessness after he became aware the vehicleswere on the yard - actions relied on by Crownwere permitting vehicles to remain for processinginto scrap when he became aware of theirpresence and his completion of necessarypaperwork on behalf of the company in respectof 10 vehicles - recklessness as to whethervehicles stolen depended on circumstances andcondition of vehicles and knowledge of how theyhad been acquired - issue of trial Judge’sdirection on attribution - District Court Judge haddirected jury that appellant was the “controllingmind” of the company in relation to joint chargelaid against company - effects of that directionwere that only the appellant’s actions andknowledge were to be attributed to the companyand that only his actions and recklessnessconstituted the elements of the offence chargedunder s246 - defence case that appellant’s roleon yard was largely administrative and that hewas not in position to know of presence ofvehicles and take control of them nor did hehave necessary knowledge of any suspiciouscircumstances which would make him recklessas to whether the vehicles were stolen - appealto Court of Appeal unsuccessfully challenged thedirection as to the attribution of appellant’sactions and knowledge to company - appellantargued on appeal to Supreme Court thatdirection deprived him of putting defence to jurythat vehicles were received by company whenthey were brought onto yard by employees whopurchased them so that appellant could not beparty “with” the company - direction also said tohave undermined defence case that appellant’srole was limited and clerical and that he was notshown to have had knowledge of presence of

Continued Page 11

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Canterbury tales 9

Learning about BYODThere is a little turning back the tideon organisations allowing theirpeople to access the network andhold data on employee’s andcontractor’s own devices such asmobiles, personal laptops, USB datasticks, and so on.Surveys point to a number of advantagesincluding staff efficiency. But without the rigourusually found in company IT systems, thisthrows up the risk of unencrypted data goingpublic, with legal and reputationalconsequences.BYOD (Bring Your Own Devices) can open upsecurity gaps in best practice internal IT systems.BYOD is a big issue for IT people and IT securityspecialists, so they are likely to understand thelawyers getting involved.The challenge is usefully set out by Nigel Millerin his October 2013 article in Computers &Law, BYOD: Win-win or Zero-sum Game?as follows:“The big risk factor for organisations with BYODschemes is the loss of control over the devicesbeing used. This leaves organisations in the darkin terms of knowing what data are stored onthe devices or in the cloud, what data securityvulnerabilities there may be and how to secureaccess themselves. This potential loss of controlopens the door to a host of privacy and datasecurity issues.“For the employee who has to share control ofthe device with an organisation looking toprotect its data assets, he could be forced toallow the organisation access to his ownequipment, often without compensation, andface the risk that the organisation could accesshis private information, lock him out of thedevice and wipe his data.”What are the legal issues?There are plenty of contract, tort, and statutoryreasons why this is legally a problem area - ontop of reputational risk. A convenientbenchmark for assessing legal obligations forboth commercial and for personal data is IPP5of the Privacy Act 1993An agency that holds personal information shallensure:(a) that the information is protected, by suchsecurity safeguards as it is reasonable in thecircumstances to take, against-

(i) loss; and(ii) access, use, modification, or disclosure,except with the authority of the agency thatholds the information; and(iii) other misuse; and(b) that if it is necessary for the information tobe given to a person in connection with theprovision of a service to the agency, everythingreasonably within the power of the agency isdone to prevent unauthorised use orunauthorised disclosure of the information.Essentially, the organisation must ensureinformation is protected to a standard that isreasonable in the circumstances to preventunauthorised use or disclosure of theinformation (including taking reasonable stepswhen third parties including staff andcontractors get information). This is notnecessarily about 100 per cent fail-safe securityprotection; it is about the organisation still beinglargely responsible for compliance over anemployee’s and contractor’s BYOD device.What is needed obviously depends on the levelof sensitivity of the information. Therefore anorganisation may, for example, stop highlysensitive information being used over BYOD,but take a more relaxed approach to otherinformation.What should the lawyer do?To the extent BYOD access and data holding ispermitted, the lawyer should get reassurancearound two main categories, based on anadequate assessment of risk in the context ofthe organisation’s specific circumstances:1. Are there adequate technical requirementsin place? That could include restricting BYODaccess to certain information in the network,and mobile device management solutions suchas encryption, monitoring corporate policyimplementation, configuring settings andremote wiping, and locking of lost or stolendevices.2. Are there adequate policies in place acceptedby staff and contractors? That would include:(a) material educating staff and contractors onthe risks and how to manage BYOD devices(this can overlap with policies and material onrelated risks such as cloud computing and WiFi);(b) staff/contractor obligations and acceptableuse;(c) the extent of the organisation’ right to accessand monitor the device and its use (clearlydefined to meet, for example, employment lawrequirements);(d) the consequences if there are breaches.

Some more detailA useful source is the material produced by theUnited Kingdom equivalent of the PrivacyCommissioner, such as its report, Bring your owndevice (BYOD) Guidance (www.ico.org.uk).Summarising some of that office’s key points:* “Be clear with staff about which types ofpersonal data may be processed on personaldevices and which may not.* Use a strong password to secure your devices.* Enable encryption to store data on the devicesecurely.* Ensure that access to the device is locked ordata automatically deleted if an incorrectpassword is input too many times.* Use public cloud-based sharing and publicbackup services, which you have not fullyassessed, with extreme caution, if at all.* Register devices with a remote locate andwipe facility to maintain confidentiality of thedata in the event of a loss or theft.”Checklist for BYOD legal review1. Has the IT Department categorised data andassociated risk?(a) what type of data is held;(b) where data may be stored;(c) how it is transferred;(d) potential for data leakage;(e) blurring of personal and business use;(f) the device’s security capacities;(g) what to do if the person who owns thedevice leaves their employment; and(h) how to deal with the loss, theft, failure andsupport of a device.2. What types of devices are used andpermitted?3. Any specific legal issues applicable to theorganisation such as legislation or onerouscontracts?4. Any specific reputational concerns?5. What level of protection is required, basedon what is reasonably required for eachcategory of data?6. What technical solutions are being used andare they adequate for each category ofinformation?7. Are adequate corporate policies in placetaking account of (a) employment law and(b) binding buy-in by the employee orcontractor?8. Are there systems to monitor what ishappening and are they implemented inpractice?

First published in NZ Lawyer

By Michael Wigley

I N D E P E N D E N T C O M M E R C I A L B A R R I S T E R

Mark Russell now practises as a commercial barrister at Canterbury Chambers. Mark is available to provide independent, expert advice in:• company law issues • corporate structuring• shareholder disputes • joint ventures• corporate governance • securities law• banking and financing law • commercial contracts and disputes• company insolvency

Mark is also available to accept appointments as a commercial mediator and arbitrator.

Phone: (03) 260 3100Cell: 021 499 231

Email: [email protected]


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I mentioned my concern to him. Of course Idid so discreetly so as to leave the Court’sdignity unharmed. Richard McGuire becamethoughtful for several minutes and then a brightlight shone behind the blue Irish eyes.He turned and said, “Col, a hospitality coach isa large motorised vehicle used to get theinebriated between watering holes”. MrCoumbe meant to say he was on one but leftthat small word out.Youth Advocate NotesSome of you may know that to the south ofour fair city there is a residence designed todetain very naughty teenagers. Within theconfines of that residence there is a securecare unit where the very, very naughtyteenagers go when they don’t comply with therules of the residence.The law requires that they have to be visitedregularly by a Youth Advocate to advise oncertain applications that have to be made tothe Court in respect to their detention.On a recent occasion when I was the rosteredDuty Youth Advocate to attend, a riot (my word,proper word — some code coloured incident)broke out which involved throwing chairs, hittingwindows & yelling. The staff immediately

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President’s ColumnContinued from Page 2 readjusted the furniture and removed objects

out of the quite large room. I was told to standagainst a wall to protect my back and was thenushered into a room that was locked. As Iwatched through the window to see the eventsoccurring I was reminded of the similarity tothe experiences of Gerard Thwaites whenreminiscing of his student pub days.After about 15 minutes I realised that I was theonly person who had been successfully lockedup by the staff. Perhaps it had something to dowith the fact that I was probably at least threetimes older than most of the other people atthe scene. Until next time.

Colin Eason

Canterbury tales 11

Canterbury Tales is the official newsletter ofthe Canterbury Westland Branch New ZealandLaw Society.Publications Committee: Zylpha Kovacs(convenor), Simon Shamy (editor), CarolynBrowne, Ann Maria Buckley, DanielWeatherley, Beatrix Chin.All correspondence and photographs shouldbe forwarded to: The Branch Manager,Canterbury-Westland Branch New ZealandLaw Society, Unit 1, 8 Homersham Place,Russley, Christchurch. P. O. Box 565Christchurch.Phone 358-3147, fax 358-3148. [email protected]: Canterbury Tales is published bythe Canterbury Westland Branch New ZealandLaw Society. The opinions expressed hereinmay not necessarily be those of the Branchand have not been expressly authorised. TheBranch accepts no responsibility whatsoeverfor any error, omission or statement.

vehicles on yard or circumstances whichsuggested knowledge or recklessness of fact theywere stolen - Court noted that difficult questionsmay arise in some cases as to the basis of theliability of secondary parties where a companyreceives stolen property with knowledge as aresult of the actions and states of mind of anumber of secondary parties which are properlyattributed to it, however such difficulties do notarise where a single secondary party is the solesource of the attributed necessary actions or stateof mind where there is unity between the basisof culpability of the principal and the secondaryparty, as in this case - R v Kennedy distinguishedin relation to timing of actions and intention - noimpediment to different offences of receivingarising in series of dealing with stolen property -nothing to stop employees being chargedseparately from appellant for their actions andstates of minds if amounting to distinct offencesof receiving - Crimes Act 1961 as a statute ofgeneral application cannot be read down bySecondhand Dealers and Pawnbrokers Act -discussion of terms “every one” and “person”.HELD: no miscarriage of justice in direction tojury as to attribution - argument that appellantdeprived of additional defence that company hadalready received stolen vehicles through actionsand knowledge of employees was misconceived- s246(1) applied to “every one” who receivedstolen property - appellant could have beencharged on the facts as a principal or charged asa party to the offending with the company basedon attribution to it of his receiving with knowledgeor recklessness as to whether or not the carswere stolen - additional sanction (cancellationof licence) under the Secondhand Dealer’s andPawnbrokers Act did not have effect that onlylicensed dealer could be liable as principal partywhen stolen goods received during course ofbusiness - although an unnecessarycomplication, no error of law in joint framing ofcharge - appeal dismissed.

Case SummaryContinued from Page 8

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The Young Lawyers CommitteeCanterbury-Westland recentlycompleted the inaugural regionalmooting final.

The regional competition is part of the NewZealand Law Foundation National YoungLawyers’ Mooting Competition 2015 that issupported by the New Zealand Bar Associationand the New Zealand Law Society.The regional competition saw 10 local teamsattend a training evening run by PeterWhiteside QC and Malcolm Wallace followedby preliminary rounds, semi-finals and finalsthroughout May. Senior practitioners judgedthe event and were very impressed at thestandard of the participants.The finalists were Sam Henry and StephanieMann of Young Hunter and MatthewPrendergast and Guy Carter of WynnWill iams, who were judged by TheHonourable Sir Graham Panckhurst and TheHonourable Lester Chisholm.Following the final, drinks and nibbles wereheld for the finalists and their families alongwith those that had taken part in thecompetition. Sam and Stephanie wereawarded the trophy as winners of theregional competition.However unfortunately Stephanie had a priorcommitment, which meant that Guy andMatthew would be proudly representingCanterbury-Westland at the national final inWellington next month. We wish them wellagainst their Auckland and Wellingtoncounterparts.Once again we would like to thank all whowere involved with the competition. Inparticular the judges, the University ofCanterbury, Cavell Leitch, the Canterbury-Westland Branch of the New Zealand LawSociety, Peter Whiteside QC, and MalcolmWallace who were all of huge assistance.We would also like to make special mentionof Sam Henry who was the stand out speakerof the regional competition.It is to be hoped that this competition willnow become an annual event.

High standard at localmoot

Above, Sam Henry and Stephanie Mann. Below, Matthew Prendergast and Guy Carter,

— Emily Quested and ChristopherNewman (Regional MootingConvenors)

reacting to a complaint

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