Law News 3 Issue 3, 20 February 2015

7/21/2019 Law News 3 Issue 3, 20 February 2015

1/12

www.adls.org.nzISSUE 320 FEBRUARY 2015

An inauspicious date, Friday 13 February2015, nevertheless played host this year to

an auspicious occasion the final sitting ofJudge Neil MacLean as he steps down as ChiefCoroner.

Held at the District Court in Auckland, thespecial sitting marks the end of an era incoronial services in New Zealand. Not only has

Judge MacLean held the post for some eightyears, during which time he has, in the wordsof Attorney-General Chris Finlayson, madean outstanding contribution to the coronialregime, but he was also the first Chief Coronerthis country has ever had, as the role was newlycreated as part of a wide-reaching overhaul ofthe coronial system in 2006.

Law Newswas delighted to be able to speak withJudge MacLean shortly before his final sittingas Chief Coroner, and to find out what has kepthim in the job for so long and what is in store forhim next.

What is a coroner, and what does he or she do?At the outset of our discussion, Judge MacLeannotes that many people do not understandwhat a coroner does. A large part of his job hastherefore involved public education, which hasincluded extensive speaking engagements andwork on the website for Coronial Services (which Continued on page 2

LAWNEWS

THIS ISSUE:

Chief Coroner Judge Neil MacLean takes on

a new challenge

Is your earthquake cover shaky?

Food for thought when exporting to the US

+ Coronial services,

judiciary

RETIRINGCHIEFCORONERREFLECTS ON

HIS TIME INOFFICE

Judge Neil MacLean wearing his blue coronial robes for the last time.

provides case management and administrativesupport to the coroners), to make it more user-friendly and to help answer some of the basicquestions people may have.

Te 2006 Act is the only place where you willfind my job description,says his Honour. Tereare a number of statutory functions set out there one of which is a public education role. Tathas turned out to be a major part of the job, farmore so than anyone realised. I have had (andcontinue to have) speaking engagements all over

the world.

Briefly, for readers who may be unfamiliarwith the role and responsibilities of coronersin New Zealand, coroners are, in essence, aspecies of judge. Tey are qualified lawyers,appointed as independent judicial officers tolead investigations into sudden, unexplained

or suspicious deaths. As the Coronial Serviceswebsite puts it, A coroner speaks for the dead toprotect the living.

Coroners may undertake an inquiry (to findout more about an unexpected, violent orsuspicious death), an inquest (a court-stylehearing, although less formal than a criminaltrial and of a more inquisitorial nature), or, asappropriate, make a finding on the papers (wherethere is sufficient evidence within the writtenmaterial before the coroner such that there

is no need to hear from witnesses in person).Teir job also includes considering whetheranything can be done differently that mightprevent similar deaths in the future and makingrecommendations accordingly.


2/12PAGE 2 - ISSUE 3, 20 FEBRUARY 2015

Te Coroners Act 2006 a new approach

As noted, up until 2007, there was no ChiefCoroner in New Zealand. Te role was newlycreated as part of the sweeping changes to theold, more patchwork-like system, introduced bythe Coroners Act 2006. His Honour discussedwithLaw Newssome of the differences betweenthe old and new systems and the advantages inhow coronial services are managed under the2006 Act versus the previous regime.

I inherited a system where the Ministry ofJustice had carried out an analysis (based oninformation from the then coroners) of thelikely workloads in the different areas. Notsurprisingly, they didnt really get the workloadsright, especially in the greater Auckland area,says his Honour.

Under the old system, there were around 70coroners. Most (but not all) of the coronerswere lawyers usually partners in firms in thearea where they sat and essentially did theircoronial work on the side. Only in Aucklandwere there two full-time, salaried coroners. Terest of them (there seemed to be one in almostevery town in New Zealand) were on varyingarrangements.

Part of the problem of having so many coroners

was that often there was uncertainty as to whothe coroner was for a particular area or how tocontact them. Te reality was that the coronialservice was effectively run by the police they decided at the front end what was goingto happen and handled things like going tohospitals and body transfer transport.

Tere were a whole lot of gaps in coverage whichwere plugged by JPs [Justices of the Peace].Especially after hours, i.e. outside of MondayFriday, 9 to 5, it could be very difficult to contacta coroner, so JPs would step in to fill the gap.Te big change now is that we are 24/7 a DutyCoroner is available every hour of every day.

What does the coronial service look like now?

Tere is a statutory cap at the equivalent of 20full-time coroners, with 15 sitting at present.Four coroners are based full-time in Auckland,which is by far the busiest area in terms ofcoronial work.

Coroners in England and Australia in particularhave expressed envy at what we have done to the

+ Coronial services, judiciary

RETIRING CHIEF CORONER REFLECTS ON HISTIME IN OFFICE

Continued from page 1

Editor:Lisa Clark

Publisher:Auckland District Law Society Inc.

Editorial and contributor enquiries:Lisa Clark, phone (09) 303 5270 or [email protected]

Advertising enquiries:Chris Merlini,phone 021 371 302 oremail [email protected]

All mail for the editorial department to:Auckland District Law Society Inc., Level4, Chancery Chambers, 2 Chancery Street,

Auckland 1010. PO Box 58, ShortlandStreet, DX CP24001, Auckland 1140.www.adls.org.nz

Law Newsis published weekly (withthe exception of a small period over theChristmas holiday break) and is availablefree of charge to members of ADLSI, and

available by subscription to non-membersfor $130 plus GS per year. If you wish tosubscribe please email reception@adls.

org.nz

COPYRIGH. Material from this newsletter must

not be reproduced in whole or part without

permission.Law Newsis published by

Auckland District Law Society Inc., 2 Chancery

Street, Auckland.

LAW NEWS is an officialpublication of Auckland DistrictLaw Society Inc. (ADLSI).

coronial system in New Zealand, by moving itfrom a large number of part-time coroners to asmall, full-time legally qualified coronial bench,says his Honour.

Judge MacLean also notes that the demographicsare changing in terms of the make-up of thecoronial bench:

Interestingly, all of the four coroners inAuckland are women, and there are also twowomen coroners in Christchurch. When Ireflect back on when I came into the job ofChief Coroner in July 2007, there were only fourwomen versus 11 men amongst the coroners;

In the instance of the Pike

River disaster, I was down

there within a day or so and

held an inquest within two

months, and thank goodness

I did that, as the Christchurch

earthquakes which took

place the next month would

have meant there may not

have been much progress for

some time.

Judge Neil MacLean

now there are seven women and eight men, sowe have pretty much reached equality.

Also, whereas previously the majority of ourcoroners had also been coroners under the oldsystem (having reapplied for their positions tobe coroners under the 2006 Act regime), as ofMonday this week [i.e. 26 January], we will haveeight coroners who have been appointed underthe new regime and seven who have continuedacross from the old one.

Judge MacLean welcomes the greater variety ofexperience amongst coroners, and says it is greatto have people in the job who have had a reallife outside of it.

Te end result is what I call a civilianising of

the coronial system. We took over a lot of thefunctions previously being carried out by thepolice, such as receiving the first reports ofdeath, particularly in the grey area cases such ashospital deaths where a doctor is unsure whetherhe or she should certify a death, or wherea community doctor may be coming underpressure from family members to do so.

Frontline staff at the National InitialInvestigation Office or NIIO now handleand can deal with many of the queries, but, ifnecessary, an actual coroner is always availableby phone as well.

Now, they [i.e. doctors] can tap straight into the24 hour system, and speak with the coroner ifthat is necessary. Te coroner can reassure thedoctor that they can proceed to certify a death ifthey are satisfied that it was from natural causes.For example, we get a lot of calls from overseas-trained house surgeons reporting deaths, which,although from natural causes, would be requiredto be reported in their home country, for examplebecause the death occurred within 24 hours ofadmission to hospital. In New Zealand, that is nota requirement for reporting a death, so we candeal with those queries quite quickly now.

o give you an idea, there are around 30,000

deaths in New Zealand every year. We [thecoroners] hear of about 6000 of those, and abouthalf of those (i.e. around 3000), we can head off atthe pass. Tis has made a huge impact on policeworkloads, and has freed up their resources toget on with other things. I am not able to quantifythe difference it has made, but the police haveacknowledged that there has been a huge shift ininvolvement from them to us.

Continued on page 7

Judge Neil MacLean


3/12



+ Case note, food and drug labelling, exports, competition

Recent US SC decision impact on NZ exports?

By Zachary D Norris and Ada Echetebu, both

partners at the Auckland-based US law firm

of Norris Legal Consulting

Recently, the Supreme Court of the United

States issued an opinion inPOM WonderfulLLC v Coca-Cola Co(573 US (2014), 134 S Ct2228 (2014)), which potentially affects New

Zealand exporters to the United States of foodand beverage products, cosmetic products,drugs and other products regulated by the USFood and Drug Administration (FDA).

In this case, the Supreme Court approved andelucidated upon an unfair competition claimbrought under theLanham Act,regarding anallegedly misrepresentative food label whichotherwise complied with the FDA regulations.New Zealand companies exporting productsfalling under the US Food, Drug, and Cosmetic

Act(FDCA) may be interested in understandingthe implications of this case on their businesses.

Background

Before we delve into the facts of the case, a briefexplanation is needed regarding the laws at issue.

TeLanham Actis the benchmark trademarklegislation in the United States. It provides inprinciple for the registration of trademarks inthe United States, and provides a mechanism bywhich a party may challenge a trademark, or sueto enforce the infringement of its own trademarkrights. It also provides a private cause of actionfor unfair competition through commercial

misrepresentations. In the present case, POMWonderful LLC (POM) sued under section 43 oftheLanham Act, which states (as relevant):

(a) Civil action

(1) Any person who, on or in connection withany goods or services, or any container forgoods, uses in commerce any word, term,name, symbol, or device, or anycombination thereof, or any falsedesignation of origin, false or misleadingdescription of fact, or false or misleadingrepresentation of fact, which;

(A) Is likely to cause confusion, or to

cause mistake, or to deceive as to theaffiliation, connection, or associationof such person with another person,or as to the origin, sponsorship,or approval of his or her goods,services, or commercial activities byanother person, or;

(B) In commercial advertising orpromotion, misrepresents the nature,characteristics, qualities, orgeographic origin of his or her oranother persons goods, services, orcommercial activities, shall be liablein a civil action by any person who

believes that he or she is or is likely tobe damaged by such act .

Tis section was originally interpreted asprotecting infringement of a mark by someonepassing off their product using a similar butconfusing mark or trade dress. However, itsscope has been considerably expanded through

judicial interpretation to its present day formwhich allows a private party to sue a competitorfor infringement of unregistered/common lawmarks, infringement of trade dress, and for falseadvertising. As the Supreme Courts JusticeKennedy states in the majority opinion ofPOMWonderful, the Act allows one competitor to sueanother if it alleges unfair competition arisingfrom false or misleading product descriptions.

On the other hand, the FDCA is a federal

regulatory statute which provides for thenationwide harmonised regulation of food,drugs, and cosmetics. Te FDCA preempts statelegislation regarding the same subject matter. Inconjunction with a litany of additional statutesand regulations which implement the FDCAstatute, the FDCA requires (inter alia) that foodproducts and beverages must be produced byregistered facilities subject to inspection, cannotcontain any prohibited ingredients or additives,and must have a label which discloses theiringredients, nutritional value information, and isnot misleading or false.

Te FDCA provides the FDA with exclusive

enforcement powers, including the authority toseek criminal sanctions in some circumstances(Pom Wonderful). Te FDA may bring directactions against any manufacturer, distributor,or retailer which deals with any of theregulated products and violates the FDCA orits implementing statutes and regulations. It isimportant to note here the fact that the FDCAdoes not provide a private cause of action whichcan be used by competitors.

Facts

TePOM Wonderfulcase concerned theinterplay of theLanham Actand the FDCAstatutes. Te plaintiff, POM, producesa pomegranate/blueberry juice cocktail(available in New Zealand as well, in case youare curious). POMs juice cocktail is made of85% pomegranate juice and 15% blueberryjuice. Te defendant company, Minute Maid,a division of Coca-Cola, sells a 100% FruitJuice Cocktail, the label of which states

POMEGRANAE BLUEBERRY flavored blendof 5 juices and pictures a drawing of blueberries,a pomegranate, an apple, grapes and alsoraspberries. In reality (and as alleged by POM),the Coca-Cola product contained only 0.3%pomegranate juice and 0.2% blueberry juice.However, Coca-Cola asserted in its defence thatit properly labelled the product in accordancewith FDA regulations and the FDCA.

POM sued Coca-Cola under section 43 of

theLanham Actfor unfair competition,claiming that the labels emphasis on the wordspomegranate and blueberry, where actuallythese juices only made up a very small portion ofthe overall juice blend, misled consumers intobelieving the product consists predominantlyof pomegranate and blueberry juice and thisconfusion caused POM to lose sales. POMsought lost profits and injunctive relief.

Coca-Cola inventively argued that becauseCongress created the FDCA to directly regulatefood and beverage labels, this inherentlyprecluded aLanham Actunfair competitionclaim based on alleged misrepresentative aspects

of a food and beverage label. Tis argument wassupported by a commonly-held belief that theabsence of an FDA objection to any food labelthat was compliant with the FDA regulationsmeant that there existed a de facto approval ofthe representations made in the label. In short,Coca-Colas argument is that only the FDAmay challenge the statements made on a labelregulated by the FDA, and this means that asection 43 claim should not be made in regard toFDA-regulated labels.

Both the California Federal District Courtand the Ninth Circuit Court of Appealsin San Francisco agreed with Coca-Colas

interpretation. Te Supreme Court, however, didnot agree with the rulings of the lower courts.It found that the ... [the]Lanham Actand theFDCA complement each other in major respects both touch on food and beverage labeling(sic), but theLanham Actprotects commercial

Zachary Norris

Continued on page 10

Ada Echetebu



Practitioners, members of the judiciary and the legal community

joined together to mark the commencement of the legal year at theADLSIs annual Opening of the Legal Year Church Service on 11February 2015.

Te service was held at MacLaurin Chapel on the campus of theUniversity of Auckland, and was led by the Very Reverend Jo Kelly-Moore and the Reverend Uesifili Unasa. Attendees enjoyed the chanceto reflect and engage over a cup of tea following the service.

+ ADLSI event review

Opening of the legalyear church service

Te Very Reverend Jo Kelly-Moore, ADLSI President Brian Keene QC, ADLSIVice President Joanna Pidgeon and the Reverend Uesifili Unasa

ADLSI recognises and celebrates the outstanding achievements of itslong-standing members.

It is with pleasure that ADLSI invites members of the legal profession tocome together and honour the Hon Justice Simon Moore. A dinner willbe held at the Northern Club on Friday 6 March 2015.

Justice Moores contribution to the legal profession as a lawyer, CrownSolicitor and Queens Counsel are well known and his appointment tothe High Court is the next step in a distinguished career. We hope youcan join us for this convivial evening to honour a popular and admiredmember of the legal profession.

Date: Friday 6 March 2015

iming: 7:00pm, Arrival and drinks 7:30pm, Dinner

Dress code: Smart business attire

+ ADLSI event

ADLSI Law Dinner to honour the Hon Justice

Simon Moore

LN

Justice Moore

Venue: Te Northern Club19 Princes Street

Auckland

ickets: $105.00 + GS ($120.75incl GS) per ticket forADLSI members andcurrent & retiredmembers of the judiciary;$130.00 + GS ($149.50incl GS) per ticket fornon-members

o register for this dinner visitwww.adls.org.nz; alternatively [email protected] 09 303 5287. Spaces are limited so registerbefore 25 February 2015to secure your space, subject to availability.

ADLSIs standard cancellation policy applies for this event.

By Meryl Duval on behalf of ADLSIs Commercial Law Committee

TeLimited Partnerships Amendment Act 2014introduced key changesincluding a New Zealand resident requirement for general partners.

Limited Partnerships (LPs) that were registered before 1 September2014 have until 28 February 2015to ensure at least one general partnercomplies with the new New Zealand resident criteria. LPs registered after 1September 2014 are already subject to those obligations.

Te changes permit a general partner to include a:

natural person, living in New Zealand or a natural person who lives in

Australia (but only if the resident Australian is a director of a companyin Australia); or

New Zealand registered company. However there are similar residencerequirements for directors of New Zealand companies which applyfrom 1 May 2015 for existing companies and 28 October 2015 for allcompanies.

Changes in the legislation should also be reviewed in relation to other typesof general partners.

LPs registered prior to 1 September 2014 must also provide the Registrar ofCompanies with information including the:

full name, residential address, and place and date of birth of everynatural person who is a general partner or limited partner; and

name and address of every general partner and limited partner whichis not a natural person.

Tese details must be provided either in the LPs 2015 Annual Return oras and when required by the Registrar and will become searchable on theLimited Partnerships Register.

LP clients registered prior to 1 September 2014 should be advised before28 February 2015of how these changes may impact them.

+ Limited partnerships, compliance

Compliance update new general partnerrequirements for

Limited Partnerships

LN



Chen Palmer announces two new partners

Chen Palmer has appointed two new partners,Marina Matthews and James Dunne.

Marina Matthewsleads the Education andPublic Policy teams at Chen Palmer and hasover twelve years experience providing legaland public policy advice on a range of issues toMinisters, officials, and top business leaders. MsMatthews specialises in education, public policy,business regulation, and government relations.Prior to joining Chen Palmer four years ago,she was a senior public servant and worked inthe Beehive advising four Crown Ministers. MsMatthews is Ngti Kahu and uwharetoa, andworks from the Chen Palmer Auckland office.She is also a proud Southlander.

James Dunnehas worked at Chen Palmer forseven years, during which time he has workedon every type of public law instruction the firmattracts. Mr Dunne leads the Working withGovernment team at Chen Palmer. Mr Dunnespecialises in legislation, public policy reform,business regulation and judicial review. Heis also experienced in the full range of publiclaw tools, including public law litigation and

+ Appointments

A round-up of recent appointments

government relations. He also provides regularmedia comment on a range of public lawissues. Mr Dunne works from the Chen Palmer

Wellington office.

Kensington Swan makes two seniorappointments

Jenni Rutter joins the partnership of KensingtonSwan in Auckland, while Catriona Grover hasbeen appointed Wellington Managing Partner.

Based in Auckland,Jenni Rutterwill join

partner Charlotte Henley (in the Wellingtonoffice) in the leadership of the firms dedicatedIP practice. Prior to joining Kensington Swans

Auckland office four years ago, Ms Rutter was apartner with leading international law firm Bakerand McKenzie, based in London. Ms Rutter hasover 17 years experience helping clients buildand protect their valuable IP. She has a provenrecord of finding creative, commercial solutionsto IP challenges and using her global experienceto add value for clients.

Catriona Groverjoined Kensington Swanin 1999 and has been a partner since 2008.Her managed funds and insurance practice isnationally recognised. Te Wellington ManagingPartner role will allow her to use her excellentmanagement and leadership skills for the wider

benefit of the firm and its clients.

New Zealand China rade Association

announces new Chair

New Zealands leading Chinese-New Zealandbusiness and trade organisation, the NewZealand China rade Association (NZCA),has appointed DLA Phillips Fox partner MartinTomsonas its new Chairman.

Mr Tomson is an expert in foreign directinvestment into New Zealand, the OverseasInvestment Act and Chinese trade with andinvestment into the country. He is a member ofDLA Phillips Foxs China practice and advises a

number of Chinese organisations with interestsin New Zealand.

Te NZCA (www.nzcta.co.nz) promotes andstrengthens trade with and investment betweenNew Zealand and the Peoples Republic of China.

General Editors:Kate Diesfeld and Ian McIntoshPages: 633

As the first book published in New Zealand to address these issuesin a single reference work,Elder Law in New Zealandprovidesreaders with a comprehensive view of a complex legal landscape.

Elder Law in New Zealandis accessible and essential reading forlegal and medical practitioners and scholars, elder law advocatesand advisors, and professionals who work with and represent theinterests of older people.

Price:$130.43 plus GS ($150.00 incl. GS)*

Price for ADLSI Members: $117.39 plus GS ($135.00 incl. GS)*

(* + Postage and packaging)

o purchase this book please visit www.adls.org.nz/adlsi-storeor contact the ADLSI

bookstore by phone: 09 306 5740, fax: 09 306 5741 or email: [email protected].

+ New book

Elder Law in New Zealand

Marina Matthews James Dunne Jenni Rutter

Catriona Grover Martin Tomson

LN



Continued from page 2, Retiring Chief Coroner reflects on his time in office

One aspect where coroners are moving with thetimes is trying to reduce the number of caseswhich reach full-blown inquest stage.

In the new system, we do a lot less formalinquests than previously. If the facts are not indispute, the coroner can use his or her powersunder the Act to make a finding on the papers.

In situations such as a suicide (of which thereare some 540 instances a year, or 10-12 a week),for example, the families generally dont want toturn up at court and have the sad details aired inpublic, his Honour says.

Another significant achievement, on whichJudge MacLean reflected with pleasure, wasthe introduction of a coronial checklist atickbox-style checklist that doctors can use tosee whether they have considered all relevantmatters where a patient has died.

Te checklist plays a valuable role as doctorswork their way through it, they are reminded of

things they might not have considered, such aswhether the patient was under a mental health orcustody order, whether relatives are complainingabout the patients treatment, and so on, and itmakes them stop and think about whether or nota death should be certified or referred on.

I have always been a fan of the surgerychecklist created by Atul Gawande [a well-known American surgeon and writer], so thatwas the background to me introducing thechecklist here.

Although this measure initially encounteredsignificant resistance from the medicalprofession, it is now working well.

I attended a meeting with representatives from20 DHBs, at which I was accused of distortingthe law and trying to meddle in the medicalsystem. Now, eight years on, they think thechecklist is the best thing since sliced bread, andthey want (as I do) to extend it further into thecommunity, for example where a patient diesoutside of a hospital, such as in a rest home, hisHonour commented.

A day in the life of the Chief Coroner

When asked how much of the nitty-gritty, day-to-day grind of requests for assistance, hearings,dealing with families etc that he himself hasdone as part of his role as Chief Coroner, JudgeMacLean made it clear that he is far more thanjust a figurehead for the coronial service and is

very hands-on.

It goes back to my army days if you wantto lead a team, you have to show that you canget stuck in there and do the job as well. I havedone my share of being the duty coroner, whichincluded being available to take calls at 4am.In the early days [of being appointed ChiefCoroner], I sat on a lot of cases because weinherited such a huge amount of unfinished workfrom the old system which no one had reallyhad any idea was there. Tere were a staggeringnumber of ongoing cases, well over 2000. Terewas stuff coming out of the woodwork left, rightand centre, from many of the old coroners all

around the country. I had to roll my sleeves upand tackle it. It has taken some years to workthat tail out.

More recently, I have focused on a major pushto deal with cases involving missing persons,whether cold cases or cases where someone ispresumed dead because, for example, witnesseshave seen them being swept out to sea. We aretrying to get such cases dealt with more quicklyrather than leaving them to sit around for yearsand become historic, and where it is clear-cutthat the person must have died then a deathcertificate can be issued. For example, in theinstance of the Pike River disaster, I was down

there within a day or so and held an inquestwithin two months, and thank goodness I didthat, as the Christchurch earthquakes which tookplace the next month would have meant theremay not have been much progress for some time.

What is next for the former Chief Coroner?

Judge MacLean says he will miss many aspectsof his current role, particularly the wide-ranginginteraction he has had with the public.

I have enjoyed the engagement with thepublic I must have spoken at hundreds ofoccasions and to so many groups from Probusand Rotary groups, to nurses and doctorsassociations, to palliative care groups andmarine search and rescue groups death affectseveryone. I always come away feeling Ive learnt

something from the people Ive spoken to.

However, he is also keenly anticipating newchallenges ahead as he takes on a two-yearappointment as an ACC-warranted judge infact, he has already anticipated his new role in sofar as he has been doing both for several weeksbefore stepping down as Chief Coroner!

Im now on my 4th day of ACC hearings, it isan incredibly complicated but fascinating area.I hear three appeal hearings a day, it is prettyfull-on. Essentially, I am going back eight years towhen I last sat as a judge, and I have to rememberto put on my old black gown (which luckily still

fits!) instead of my blue coronial gown.Judge MacLean says that the skills needed tobe a coroner are very transferable to the ACCenvironment, in that both deal with medico-legal issues. However, they differ in the while thecoronial system is inquisitorial, ACC reviews arequasi-adversarial.

In coronial cases, you [the coroner] decidewhat the issues are, who you are going to hearfrom etc. With ACC cases, lawyers are actingas advocates for the parties, and you have todecide the case on the issues as presented toyou. However, there is an inquisitorial aspect tothese cases as well even though I am sittingas a review judge, I find that it is still useful toask questions, and occasionally to interrupt andchallenge in a way you wouldnt do in a criminalcase, for example.

As mentioned in last weeks issue of Law News,Judge MacLean will be succeeded in the role ofChief Coroner by Deborah Marshall, who, upuntil her appointment, was sitting as a coroner inthe Auckland area.

Does theHealth and Safety in Employment

Actimpose additional obligations?

Property owners owe health and safetyobligations under theHealth and Safety inEmployment Act 1992(HSE Act). Arguably, theHSE Act requires property owners to followthe recommendations contained in the NZSEEGuidelines and strengthen to at least 67% ofNBS, rather than merely ensuring that buildingsare above 33% of NBS and therefore notearthquake-prone under theBuilding Act.

However, in December 2013, WorkSafe issueda position statement on earthquake-relatedhazards, which attempted to clarify the interplaybetween theBuilding Actand the HSE Act forproperty owners and occupiers. In summary,WorkSafe is unlikely to take any enforcementaction for a serious harm incident if the owner or

occupier has been complying with theBuildingActand the timeframes for undertaking buildingwork imposed by the local council. Tat said,owners and occupiers may still be vulnerableto enforcement action under the HSE Act ifthey have failed to comply with theBuildingAct. Further, WorkSafe may take action underthe HSE Act if owners or occupiers fail totake practicable steps to identify and managehazardous objects, including componentsattached to buildings such as ceilings, verandas,or glass.

What impact does a lease have?

A lease of the property may contain furtherobligations. For example, the lease may allowa landlord to charge the tenant for the cost ofcomplying with a section 124 notice or repairingearthquake damage. However, if the landlord

decides to strengthen the building in the absenceof a section 124 notice or in excess of therequirements in theBuilding Act, the cost of thiswork is typically to the landlords account.

We are seeing some tenants requiring landlordsto carry out earthquake strengthening workat the time that a lease is renewed or a newlease is entered into. In many cases, tenants arerequiring buildings to be upgraded to a muchhigher standard than 33% NBS, and in somecases even requiring 100% of NBS.

Some tenants are also vacating earthquake-prone buildings while negotiating with alandlord for further work to be completed. Ifa tenant elects to vacate a building then it willusually be obliged to continue to pay the rent. Asalways, the answer will depend on the terms ofthe particular lease.

Continued from page 3, Supreme Court confirms building owners are not required to upgrade to 67%

of NBS

LN

LN



Selected CPD CPDTo view all ADLSI CPD & register: www.adls.org.nz/cpdEmail us: [email protected] Phone us: 09 303 5278

Featured CPD

Enforcing Judgments under the New District Court Regime

2014 saw the most comprehensive rewrite of civil debt enforcement procedures in almost 25 years. The amendments impact uponmany areas of law.

Learning Outcomes

Become familiar with the changes, including the new procedures to obtain attachment orders and how financial means can

now be assessed, and the new penalties for non-compliance.

Gain a greater awareness of the choices for pursuing a debt or when acting for a judgment debtor.

Learn how the courts are responding to, and dealing with, the new changes; the common problems for lawyers and their

clients; the new processes and practices, including financial means assessments and the new contempt procedures.

Who should attend?

All solicitors and barristers acting for judgment debtors or creditors in respect of enforcements in the District Courts as well as

those wanting an update on the recent amendments.

Presenters: His Honour Judge Hinton; Lawrence Ponniah, Managing Partner, Corban Revell; Matthew King, Partner, Sharp

Tudhope; Louisa Carroll, Service Delivery Manager (Northern Region), Ministry of Justice; Dave O'Shaughnessy,Papakura

Collections Manager, Ministry of Justice

Thursday,

5 March 20154pm 6.15pm

Live streamed |

Auckland

(venue TBC)

2 CPD HOURS

Wednesday,

4 March 2015

12pm 1pm

At your desk or

on your portable

device

1 CPD HOUR

Commercial Law Series: Employee Share Plans ESOPs Fables and FactsUntil recently, New Zealands securities legislation made it hard for companies not listed on the NZX to offer shares and share

options to their employees. This webinar will cover the new FMCA rules, common features of employee share and option schemes

and the mechanics of implementing these schemes.

Learning Outcomes

Understand the background to, and details of, the FMCA rules for employee share schemes.

Learn how to establish an employee share scheme for a company not listed on the NZX.

Be better equipped to advise on common issues arising under share purchase and share option schemes.

Benefit from simple share option scheme template documents.

Who should attend?

Intermediate to senior commercial lawyers. General practitioners, as well as those who provide employment law advice, may find

this topic of interest. Accountants and directors may also benefit from attending.

Presenters:Andrew Simmonds, Managing Partner, Simmonds Stewart; Julie Fowler, Partner, Simmonds Stewart

Tuesday,

24 February 2015

12.30pm 5pm

Ellerslie Event

Centre, Auckland |

Live streamed

4 CPD HOURS

Property Law Half-Day ConferenceReceive practical guidance and invaluable insights from 10 highly respected experts during this intensive 4-hour session.

Programme

Subdivisions: Getting Them RightPresenters: Michelle Bain, Director, Cato Bolam Consultants; Roger Low, Senior Subdivision

Advisor, Auckland Council; Ian McCombe, Partner, Brookfields

Advising on Cross Leases: Before and After PurchasePresenter:Joanne Chilvers, Senior Associate, Hesketh Henry

Compulsory Acquisitions: A View from Both Sides of the FencePresenters:Matthew Casey QC; Clive Fuhr, Manager

Acquisitions and Disposals, Auckland Council Property Limited

Dont Go to Ground over Ground Leases! Presenters:Justin March, Senior Partner, DLA Phillips Fox; Reid Quinlan, Principal,Seager and Partners

Conveyancing Practice: Making the Conveyancers Lot a Happier OnePresenters:Paul Collins, Barrister; Tim Jones, Partner,

Glaister Ennor

Chair: Joanna Pidgeon, Principal, Pidgeon Law

Tuesday, 3 March

& Tuesday,

5 May 2015

4pm 6.15pm

Live streamed |

Auckland

(venue TBC)

2 CPD HOURS

Courtroom Advocacy The Essential Skills: Part 1 & Part 2Case preparation and well-honed advocacy skills are key attributes of all successful litigators. This two-part series will give you

practical guidance and examine the key advocacy skills which are adaptable to any litigation context.

Part 1

Topics:theory of the case, openings and closings, preparing written evidence.

Presenters:Her Honour Judge Fleming; Andrew Steele, Partner, Martelli McKegg, Shelley Eden; Partner, Shieff Angland

Chair: Michael Fisher, Barrister, Erskine Chambers

Part 2

Topics:leading evidence, cross-examination, re-examination, examining experts, etiquette.

Presenters:Her Honour Judge Inglis; Simon Jefferson QC; Andrea Manuel, Barrister, Shortland Chambers

Chair: Michael Fisher, Barrister, Erskine Chambers

Who should attend?

Litigators wishing to upskill or receive a refresher.

. ..

. . .

Live stream

.

.

Conference

. ...

. . . .

Seminar

. ..

. . .

Live stream

. ...

. . . .

Seminar

. ..

. . .

Webinar

. ..

. . .

Live stream



CPD in Brief

Cradle to Grave Conference 2015 Mon, 20 April 2015 Auckland | Thurs, 23 April 2015 ChristchurchA compelling refresher and update for general practioners and all lawyers practising in trust, estate planning, relationship property and elder law.

(Refer to the back cover of this issue of Law Newsfor full details.)

Presenters:Bill Patterson, Partner, Patterson Hopkins; The Honourable John Priestley QC; Sandra Grant, Barrister; Dr Bede McIvor MB ChB

FRANZCP; Sonja Clapham, Barrister; Anthony Grant, Barrister; Denham Martin, Barrister; Brian Carter, Barrister; Vanessa Bruton,

Barrister; Chris Kelly, Consultant, Greg Kelly Law Ltd (Auckland); Greg Kelly, Principal, Greg Kelly Law Ltd (Christchurch)

The CCCFA, Lending & Enhanced Consumer Protection Wed, 25 March 2015 | 4pm 6.15pm

The Credit Contracts and Consumer Finance Act has been significantly amended as part of wider reforms of the financial sector.

Presenters:Brett Carter, Principal Counsel (Consumer), Competition Branch, Commerce Commission; Jonathan Flaws, Partner, Sanderson Weir;

Rose Wang, Senior Policy Advisor, Ministry of Business, Innovation and Employment

Chair:Gayatri Jaduram, Lawyer and Disputes Tribunal Referee

Working Through Changes to the Employment Relations Act Wed, 11 March 2015 | 12pm 1pmLong-anticipated changes to New Zealands key piece of employment take effect on 6 March. They relate to six key areas will the changes affect you

and/or your clients?

Presenters:Kate Ashcroft, Senior Associate, Buddle Findlay; Helen White, Barrister Chair:Mark Donovan, Barrister

Rural Property Transactions: The Dos and Donts of Due Diligence Wed, 18 March 2015 | 12pm 1pmThis webinar will provide clear guidance and useful advice to lawyers practising in the area of rural law on what to look out for and potential problems

that can arise when undertaking due diligence.

Presenter:Tim Black, Partner, Anderson Lloyd

Intellectual Property Considerations in Sale and Purchase Transactions Tue, 24 March 2015 | 12pm 1pmIntellectual Property is a valuable asset in any business. However, its importance is not always recognised at the time of sale. This webinar will provide

essential information about what actually constitutes IP and how best to deal with it in sale and purchase transactions.

Presenter: David Alizade, Head of Commercial, Baldwins Intellectual Property

5CPD

ON

DEMAND

PACKAGE

HOUR S

HOURS

CPD

ON

DEMAND

BON

US

5-hour CPD On Demand packages

available.Plus 2 bonus hours of CPDOn Demand for you to complete.

Visitwww.adls.org.nz/cpd

TOP UP YOUR

CPD HOURS

CPD On Demand

CPD On Demand Packages 5 CPD hours with bonus 2 CPD hoursTop up your CPD hours before the end of the CPD year with an On Demand CPD package. Each package comprises various recordings in selected

practice areas, giving you the opportunity to earn 7 CPD hours.

Flexibility is key, with the ability to view the recordings and complete the interactive Q & A, anywhere (provided you have internet access) and anytime

that suits you. There are six packages to choose from:Litigation/Criminal Law Trusts, Wills and Estate Law

Commercial Law Property Law

General Practitioners Toolkit Skills for Lawyers

CPD Pricing

Delivery Method Member Pricing Non-Member Pricing

Webinar $75.00 + GST (= $86.25 incl. GST) $95.00 + GST (= $109.25 incl. GST)

Seminar (in person) $125.00 + GST (= $143.75 incl. GST) $180.00 + GST (= $207.00 incl. GST)

Seminar (live stream) $125.00 + GST (= $143.75 incl. GST) $180.00 + GST (= $207.00 incl. GST)

On Demand (1-hour recording) $85.00 + GST (= $97.75 incl. GST) $110.00 + GST (= $126.50 incl. GST)

On Demand (2-hour recording) $95.00 + GST (= $109.25 incl. GST) $130.00 + GST (= $149.50 incl. GST)

For group bookings for webinars & CPD On Demand, see the ADLSI website at: www.adls.org.nz/cpd/help-and-faqs/group-bookings/.

. 1 h ur . n m n. c t

. in r . rk h . C nf r nc

. 1 h ur . n m n. c t. r um

1. min r . in r . rk h . C nf r nc

. 1 h ur . n m n. c t

. in r . rk h . C nf r nc

. n m n

. C nf r nc

7 . h u. c t. F r u m

. min r . in r 3. r

Webinar

7. h ur . n m n. c t. F r u m

. min r . in r 3. r h 4. C nf r nc

Conference

7 . h u. c t. F r u m

. min r . in r 3. r

Webinar

. c t. F r u m

. min r . in r

Seminar

7. h ur . n. c t. F r u m

. min r . in r 3. r h 4. C

Live stream

7 . h u. c t. F r u m

. min r . in r 3. r

Webinar



Mid-Level Commercial and

Contract Lawyer

We are a well-established medium sized firm situatedin Milford on the North Shore.

Milford is a wonderful place to work with nearly all

amenities within easy reach.

We have a growing commercial and general

contract/dispute practice and require someone to fill

this role. There is a significant variety of work and

also huge potential to develop and expand this role.

Written applications and your CV should be forwarded to:

Tania Bennett, Schnauer and Co Limited, PO Box 31272,

Milford 0741 or by email [email protected]

Property Lawyer

Thompson Blackie Biddles is a leading specialist commercialproperty law firm based in Aucklands CBD. We deliver thehighest quality legal advice to achieve the strategic objectivesof our clients who include NZX listed entities, multinationalorganisations, corporate receivers, commercial property

developers and high net worth individuals.

We have an outstanding opportunity for an exceptionalproperty lawyer who is ambitious to build their career as aleader in the commercial property sector.

You will have 1-3 years high quality commercial propertyexperience along with a strong academic record. You will beconfident and personable enabling you to quickly and easilybuild lasting relationships with both clients and team. Yourtalent and drive will be obvious. All the firms legal advice isunderpinned by a sharp commercial focus so business nouswill be essential.

You will work closely with our team of specialist partnersand lawyers across a broad range of commercial propertywork including acquisitions, disposals, leasing, development,subdivisions, due diligence, property finance and OverseasInvestment Act compliance. You will have excellent exposureto clients.

Please enquire confidentially, or apply by sending a coverletter, your CV and academic record by the end of businessMonday 9 March 2015, to Victoria Fletcher Consulting,021 300 982, [email protected]

interests against unfair competition, while theFDCA protects public health and safety. Inshort, the Supreme Court reasoned that theFDCA does not prohibit aLanham Actclaimregarding misrepresentations on an FDA-compliant label and that there is no impliedrepeal of section 43 of theLanham Actbecause

the interests protected by the two statutes aredifferent.

Te Supreme Court reasoned that the FDCAprotects consumers, while theLanham Actprotects competitors. Te Court found thatCoca-Colas argument would require thatCongress intended for the FDA to protectcompetitors interests, which it clearly did not.Further, both statutes may be applied withoutirreconcilable conflict. Under the SupremeCourts rules of statutory interpretation, Coca-Colas argument was simply without basis.

Application

From a legal scholars standpoint, this case isinteresting as it demonstrates the SupremeCourts free market leanings and lack of regardfor federal regulatory agency competency. Inthe past, the federal courts have given greatdeference to a federal administrative agencysfindings and regulations. Here, however, theSupreme Court makes a remarkable statement infinding that the FDA:

[d]oes not have the same perspective orexpertise in assessing market dynamics that day-to-day competitors possess. Competitors whomanufacture or distribute products have detailedknowledge regarding how consumers rely uponcertain sales and marketing strategies. Teirawareness of unfair competition practices may

be far more immediate and accurate than that ofagency rule makers and regulators.

TePOM Wonderfuldecision effectively givesthe green light to plaintiffs in the US to makeclaims against competitors concerning foodand cosmetic labels. It is expected that this willcause a flood of new court cases. In fact, it couldinterestingly have an anti-competitive effectin that large corporations with unlimited legalresources can now use aLanham Actclaim as anoffensive weapon against smaller competitors byforcing settlements and draining these smallercompanies budgets.

For New Zealand companies exporting productsto the United States, this case should serve asan important warning. While marketing tacticssuch as emphasising certain words (i.e. Coca-Colas emphasis on blueberry and pomegranatejuice) or using marketing catch phrases (i.e.New Zealand 100% Pure) on a label may seemperfectly reasonable and pass muster withthe FDA, it is this kind of marketing schemewhich may expose New Zealand companies

to aLanham Actsection 43 claim by othercompetitors.

Of course, the reverse is also applicable and true.A New Zealand business who is already makingsales to the United States (i.e. is participating ininterstate commerce within the US) also has

standing to bring aLanham Actclaim against UScompetitors who use spurious marketing tacticson their product labels.

In any case, counsel should take a second lookat the manner in which their clients productsare labelled, given the holding in thePOMWonderfulcase. Further, New Zealand marketingcompanies and marketing departments shouldbe alerted to the increased scrutiny to whichproduct labels could be subject in the UnitedStates by competitors. Exaggerations or pufferyon a label should be very carefully consideredand weighed against the potential for triggering acompetitors claim for unfair competition.

Finally, even if a party believes that all of itslabels are fine simply because they comply withthe FDA regulations, a reexamination of everydetail in the label, including font size, fontcolour, and art work depicting the product or itsingredients, should be undertaken by competentcounsel to ensure that there is no opening forattack on a claim of unfair competition.

Continued from page 4, Recent US SC decision impact on NZ exports?

LN



WILL INQUIRIES LAW NEWS

Te no-hassle way to source missing wills for$80.50 (GS Included)

Email to: [email protected] to: Auckland District Law Society Inc.,

PO Box 58, Shortland Street, DX CP24001, Auckland 1140Fax to: 09 309 3726

For enquiries phone: 09 303 5270

+ Wills

Please refer to deeds clerk. Please check your records andadvise ADLSI if you hold a will or testamentary dispositionfor any of the following persons. If you do not reply withinthree weeks it will be assumed that you do not hold or havenever held such a document.

Judith Anne ALEXANDER, late of 39A Carr Road, MountRoskill, Auckland, Aged 58 (Died 17032014)

erry Warren BAES, late of Flat 3, 41 Cedar errace,Stanmore Bay, Whangaparaoa, Aged 50 (Died 06012015)

Cinde CICCONE-COSER (Also known as Paul CharlesWharehoka WALKER), late of Auckland, Aged 44,(Died 25012015)

Laurel Anne FOX, late of 1/1 Montague Street, Balmain,NSW, Australia, Aged 67 (Died 19092014)

Ihaia GILLMAN-HARRIS, late of 24-26 Windsor Road,Kaikohe, Aged 54 (Died 27122014)

Ronald Richard RAINBOW, 187 Crawford Street,Invercargill, Aged 62 (Died 01012015)

Rahui Sema ROBAI, late of 25 Dickens Street, Grey Lynn,Aged 83 (Died 03102013)

Nicholas William SUBBS, late of 30 Campbell Drive,Warkworth, Aged 22 (Died between 14102014-01112014)

Selena Mata WHIINUI, late of 98 Chingford Close,Mangere, Auckland, Aged 62 (Died 11062014)

Chiu Michael WONG, late of 5 Lympne Lane, Mangere,Auckland, Aged 74 (Died 05022014)

Shar Hong WONG, late of 141 Verbena Road, Birkdale,Auckland, Aged 81 (Died 13012015)

We have a full time position ideal for a junior lawyer with 1 2

PQE in our very busy property team.

The ideal candidate will have:

Some experience in conveyancing and leases of

residential, commercial and rural property; establishing and

administering trusts, preparing wills and powers of attorney

A client focussed attitude

A calm, patient and professional manner

Excellent listening and communication skills

A high level of accuracy and attention to details

The ability to work as part of a team.

Denham Bramwell is a well established law frm in Manukau that

is progressive and can offer the right person:

A diverse range of clients

Learning and development opportunities; and

A high performance culture that is fun and collaborative

A balance between work and personal life.

Property Solicitor

Please send your application and CV by Friday 27 February2015 to Traci Collins [email protected]

The move from Total Replacement to Sum Insured meansthat trustees must ensure Trust property is assessed

accurately for replacement value.

Do not rely on the default sum.

Act today for the most accurate rebuild valuation from aRegistered Quantity Surveyor.

Registered Valuations can also be included if required.

Trustees now can be

held liable for their actions.

Or their inactions.

For more information text:

House to 244 or call 0800 422 258 now.

www.costconsultant.co.nz

Lovegrove, Smith & Cotton lawyers in Australiawill accept referrals & agency matters in any

jurisdiction in Australia.

Stephen Smith & Conjoint ProfessorKim Lovegrove (www.lsclawyers.com.au0061 3 96001643) have trans-Tasmanadmission in Australia & New Zealand.


12/12

2015Cradle to GraveConference 6.5 CPD hours

Register online at www.adls.org.nz/cpd

Email:[email protected]

Phone:09 303 5278 Fax:09 309 3726

Proudly sponsored by

The interface between property, trust and family law

A compelling refresher and update for general practitioners and all lawyers practising in trust, estate planning, relationship property

and elder law. (Legal executives specialising in those areas may also benefit from this conference.)

Earlybird rate(available until 30 March 2015)

Members:

$450 + GST ($517.50 incl GST)

Non-members:$550 + GST ($632.50 incl GST)

Team discounts:

10% off for 2nd attendee, 15% off for 3rd attendee

and subsequent attendees from the same firm

Standard Rate (after 30 March 2015)

Members:$495 + GST ($569.25 incl GST)

Non-members: $605 + GST ($695.75 incl GST)

Christchurch: Thursday 23 April 2015, 8.45am 5pm

Hagley Oval, Christchurch

Auckland: Monday 20 April 2015, 8.45am 5pm

Ellerslie Event Centre, Auckland

Wills - Benefits, Mistakes and

Risks: Observations from a

Recently Retired Judge

Presenter: The Honourable John

Priestley QC

Exploring the Legal Landscape

of Capacity

Presenter: Sandra Grant,

Barrister, Shortland Chambers

Assessing Capacity: The Medical

Perspective for the GP Lawyer

Presenter: Dr Bede McIvor,

MB ChB; FRANZCP,

Psychogeriatrician and

Psychiatrist

Testamentary Capacity: The

Lawyers Options When the

Client May Not Have It

Presenter: Sonja Clapham,

Barrister, Shortland Chambers

Trust-Related Case Law Update

Presenter:Anthony Grant,

Barrister, Radcliffe Chambers

The Trusty Trust: The Optimal

Solution for Succession

Planning?

Presenter: Denham Martin,

Barrister

Family Law Developments

For Non-Specialists

Presenters: Brian Carter,

Barrister, Bastion Chambers;

Vanessa Bruton, Barrister

Decisions of Trustees:

Principles, Problems and

Options

Presenter: Bill Patterson,

Partner, Patterson Hopkins

Wills from Start to Finish

Presenters: Chris Kelly,

Consultant, Greg Kelly Law

(Auckland session), Greg

Kelly, Partner, Greg Kelly Law

(Christchurch session)

Gallery: Zone 23 Building, Unit G01, 23 Edwin Street,

Mt Eden, Auckland. Ph 630 6543 [email protected]

Transform youroffice into awork of art.

Create a memorable impression in your office,

board room or foyer with contemporary art

created by some of New Zealands emerging

and leading collectible artists.

Choose from a changing selection of over a

thousand works or ask for a free professional

consultation to source artwork that best

complements your interior.

You can hire art - enabling you to refresh the mood

every six months. Or you can buy the works as

many of our clients do.

See whats possible visit our website or gallery.Or call us for a free consultation at your place

630 6543.

From only $20 a week!

www.mobileart.co.nz

LNews

Law News 3 Issue 3, 20 February 2015

Documents

Transcript of Law News 3 Issue 3, 20 February 2015