crown law

Survival tips for New Zealand lawyers working through the COVID-19 lockdown

Fence in a field by Omar Lopez - omarlopez1 — Photo by Omar Lopez on Unsplash

This post is not legal advice, but a collection of points that lawyers may find useful to consider while working during the COVID-19 lockdown. If you require legal advice you should instruct a lawyer.

Other posts in this series:

Witnessing affidavits/declarations remotely

On 16 April 2020 the Epidemic Preparedness (Oaths and Declarations Act 1957) Immediate Modification Order 2020 came into force which modifies the Oaths and Declarations Act. This came into force after the NZ Law Society opinion mentioned below was written.
- See the Ministry of Justice guidance on the change.
- If the client does not have access to video chat/a printer/a scanner can they extend their bubble to include someone who does?
If the client and independent lawyer both have a printer and scanner, see Paul Collins’ opinion on remote witnessing for the NZ Law Society here, and draft certificate here (docx), if not, see the below section Signing documents/unsworn affidavits.
If a deponent does not have access to a physical bible, can they affirm their affidavit instead of swearing, or bring up an online bible/bible app on their phone?

Signing documents electronically

See tools mentioned in this post.
See the Contract and Commercial Law Act 2017, especially:

Wills/Enduring Powers of Attorney

Can you:
- Mail the will out with instructions for executing it correctly, if the person has enough eligible people in their bubble (e.g. non-beneficiaries)?
- Organise signing and witnessing by video conference?
  - For wills see the Epidemic Preparedness (Wills Act 2007—Signing and Witnessing of Wills) Immediate Modification Order 2020 and the Ministry of Justice guidance on the change.
  - For EPAs see the Epidemic Preparedness (Protection of Personal and Property Rights Act 1988—Enduring Powers of Attorney) Immediate Modification Order 2020.
  - If the client does not have access to video chat/a printer/a scanner can they extend their bubble to include someone who does?
- Email or post the will out to the person and record in a file note (or have the client send to you in writing) that the will has been drafted in accordance with their instructions and no changes are required; and post-lockdown have it executed correctly? (see section 14 of the Wills Act 2007)

See also information from the Property Law Section from 16 April 2020 with guidance on drafting wills and enduring powers of attorney during the lockdown and executing them via AVL (pdf) however note this was drafted prior to the Wills Act immediate modification order which includes a modified attestation section.

[No longer relevant, see the immediate modification order] Consider whether the suggested clause iv. may place doubt over the document if the client does not have it witnessed in the traditional way when physically able to.
See the linked attachments including Paul Collins’ opinion, Theresa Donnelly of Perpetual Guardian’s document on validation applications, and checklists for drafting EPAs/wills during this time.

Family law

Resources for children/parents

Links collated by the Family Law Section (pdf):

Shared care

Ministry of Health press release (4 April 2020)
Ministry of Justice guidance (being updated regularly)
Family Law Section member Prue McGuire’s paper (pdf) (24 March 2020).
Principal Family Court Judge of New Zealand’s statement on children in shared care and COVID-19 (pdf) (24 March 2020).

Witnessing relationship property agreements by video conference

See Ingrid Squire’s 2014 article in the New Zealand Law Society Family Law Section’s Family Advocate, To Skype or not to Skype: that is the question (pdf) on things to consider when witnessing a relationship property agreement by video conference.

Example of an audio-visual clause for inclusion in a relationship property agreement (republished with permission from Lady Deborah Chambers QC):

“Both [party one] and [party two] acknowledge and agree that both parties will execute this agreement before their lawyer using a Skype, FaceTime or WhatsApp connection and on that basis their lawyers will witness their signatures and give an explanation as to the effects and implications of this agreement.
The parties agree to this document being executed using that technology and agree that they will not attempt to set aside the agreement on the basis that execution and witness of signature occurred using internet connection. They also agree that it will be necessary for each party to send a scanned copy of their signed agreement to their lawyers in New Zealand for them to then complete the document. The fact that it is a scanned copy will also not invalidate the document.
The parties may sign separate copies of this agreement but once all parties have signed separate copies they will form a final binding agreement.”

Care and Protection

See Oranga Tamariki’s internal guidance on Family Group Conferences (PDF) and access (PDF).

Conveyancing

See statement from chair of New Zealand Law Society Te Kāhui Ture o Aotearoa’s that property settlements requiring physical movement are not an essential service (26 March 2020).
See the information on Ministry of Justice website, consider options including:
- Deferring settlement
- Lowering interest rate for late settlement
- Purchaser renting the property back to the seller after settlement
See bank and KiwiSaver provider positions on documents during the lockdown.

Deferring settlement

See the Property Law Section of the New Zealand Law Society Te Kāhui Ture o Aotearoa‘s suggested wording to defer settlement:

“The parties agree that settlement is hereby deferred to the 10th working day after the Government reduces the COVID-19 Level to Level 2 or below, or to such other date as may be mutually agreed. For the sake of clarity neither party shall have any claim against the other in relation to this deferral.”

But consider:

If the property, both lawyers, and the seller and purchaser are not in the same area, what if there are regional differences in the COVID-19 level?
Workload if all settlements are deferred to the 10th working day.

Accessing Landonline

Can you remote onto the computer your digital certificate is stored on?
Can you transfer your certificate to another computer? See the information on the LINZ website here or contact LINZ.
Is there another user (e.g. a colleague, your attorney) that would be able to access your workspace?

Authority & Instruction forms (A&Is)

See Land Information New Zealand’s Authority and Identity Requirements and Electronic Signing of Documents Interim Guideline 2020 and information on signing documents remotely.
If the client does not have access to video chat/a printer/a scanner can they extend their bubble to include someone who does?
For additional assurance, have you checked the historical view of the title?

KiwiSaver

If your clients’ are relying on KiwiSaver funds for a future settlement, are their funds at risk from market fluctuation, or are they in a cash fund?

Courts

Priority proceedings

See the list on the Ministry of Justice website.
If needing to travel for priority proceedings, print or save/screenshot to your phone the email from the Law Society sent to all lawyers on 8 April 2020, subject ‘Confirmation of being a practising lawyer’.

Filing documents electronically

See the Ministry of Justice website for Court email addresses.
See also the Family Court without notice email addresses.

Service

Court bailiffs may not be serving documents at all (check with the Court), so unless service will be undertaken by Police, address service in application/interlocutory application.
One option if electronic (email/social media) service is not available (from Wellington Family Law Section):
- Ask the Court to direct the respondent to attend the registry to collect the documents as arranged by the registry. The case officer is to contact the respondent by telephone to advise the documents are ready to be collected. The notice period begins from the time the registry advise the respondent and they are to be advised that if they do not make arrangements with the registry to collect or otherwise obtain a copy of the documents, they will be deemed to have had notice of the proceedings and the court will continue to progress the application as directed.

Signing documents/unsworn affidavits

If the deponent has a printer, can they print and sign the document and scan it to you or take a photo of it (or at least the jurat page) using a scanning app like Microsoft Office Lens?
If the client does not have access to video chat/a printer/a scanner can they extend their bubble to include someone who does?
Can they sign the document electronically? See options in this post.
Can you amend the lawyer’s certificate to explain why the document is unsigned/signed in a different way, or file a memorandum of counsel?
- See the Principal Family Court Judge Jackie Moran’s Guidelines for Family Law Practitioners during period of epidemic notice (pdf)
  - An adaption of the without notice certificate statement in those guidelines: “The affidavit filed in support of this application was prepared in accordance with the deponent’s specific instructions. [It was read/An electronic version was provided] to them. The deponent confirmed that they fully understood the affidavit and that the contents of it were true and correct to the best of their knowledge and belief.”
  - Note the difficulties of providing an undertaking as worded in the guidelines that you will file an affidavit when 1) that is not solely under your control and 2) circumstances may have changed which makes filing an affidavit containing the same information misleading.

Information in without notice Family Court affidavits

From the Principal Family Court Judge Jackie Moran, reported in Family Law Section Bulletin 420 – 25 March 2020 (pdf):

“Judges on the e-duty platform have encountered a lack of specificity in some affidavits filed in support of without notice applications seeking orders for day-to-day care and/or the enforcement of day-to-day care orders due to [COVID-19].
It is imperative that affidavits contain all relevant information including, but not exclusive to, the following:
• the terms of the parenting order;
• the occupants of the property/properties;
• whether any occupants are engaged in an essential service;
• steps taken to ensure compliance with the lock down;
• comprehensive details of any health issues;
• the mode of travel between the respective homes and who will undertake that travel; and
• the distance between the homes.”

Appearing via AVL

Tips from the NZLS heads of bench webinar:

Robes are not necessary. Dress in formal business attire.
You do not need to stand up when speaking.
Raise your hand toward the screen to signal an interruption (instead of standing up in a courtroom to signal you would like to speak) but these should be rare.
Set up your workspace appropriately and consider your background.
Read the information that the Court has provided you.
Follow the other usual rules that apply during hearings.

Also, consider if participating remotely will be particularly difficult for your client for example: for linguistic reasons, developmental reasons or that there is no private space away from children.

See the protocols on the Courts of New Zealand website.

Criminal

Emailing documents to prisons

See this letter from the CEO of Department of Corrections (pdf) regarding emailing documents for prison staff to print.

List of prison email addresses (pdf) last updated 8 April 2020.

Consider a cover letter and/or stamp over the documents regarding legal privilege.

Note that family and friends can also email prisoners, see here, however prisoners cannot reply by email. Prisoners will be given a $5 phone card every week until visits recommence, see here.

Contacting clients in prison

See the information from the Department of Corrections to request phone or AVL meetings with clients (PDF, from around 15 April 2020) and the update from 20 April 2020 (PDF).

Bail

See the 7 April 2020 letter from Crown Law to Crown solicitors and public prosecutors (pdf); the 15 April 2020 letter from Crown Law for distribution to lawyers (pdf); and the 15 April 2020 letter from Crown Law to Crown solicitors and public prosecutors (pdf) regarding the approach to bail.

See the 16 April 2020 letter from barrister Douglas A . Ewen in reply (pdf).

Legal aid

Application forms do not need to be signed, see update here (emailed out on 25 March 2020 and updated online 7 April 2020).

Family Legal Advice Service (FLAS)

Family Legal Advice Service (FLAS) funding forms do not need to be signed by the client, see update here (9 April 2020).

Leases

See ADLS’s statement on the no access in emergency clause (7 April 2020, PDF).
See the Property Law Section update on what is a fair proportion (20 April 2020, PDF).
See the Property Council on rent payments during the lockdown (30 March 2020).

Health Act orders

Health Act (COVID-19 Alert Level 3) Order 2020
Section 70(1)(m) order – 25 March 2020 (pdf)
Section 70(1)(f) order – 3 April 2020 (pdf)
- Includes reference to shared care/shared bubbles
Section 70(1)(e), (ea) and (f) – 9 April 2020 (pdf)

Other resources

New Zealand Law Society Te Kāhui Ture o Aotearoa – see pages here and here
Auckland District Law society (ADLS) COVID-19 page
LexisNexis’s COVID-19 information centre
Ministry of Justice – COVID-19 information
Family Law Section homepage
Courts of New Zealand protocols
Real Estate Authority – Conducting real estate business during COVID-19 alert level 3
Dairy NZ – Moving day

Updated 19 April 2020: Added information on contacting clients in prison; updated wills section and added information on enduring powers of attorney; added information on appearing by AVL.

Updated 20 April 2020: Explained where the Family Advocate article is from; added information about the Wills Act and Oaths and Declarations Act immediate modification orders; added information about bail.

Updated 30 April 2020: Updated conveyancing, A&I, affidavits/declarations, wills/EPAs, shared care, leases, appearing via AVL, contacting clients in prison, Health Act orders, signing documents, and other resources sections. Added care and protection section.

Kim Dotcom outside New Zealand's Parliament

Crown Law has provided figures under the Official Information Act on the money and time spent in relation to legal work completed in respect of Kim Dotcom and his associates which amounts to more than $5.8 million.

Crown Law writes that the United States Department of Justice is not reimbursing New Zealand for any of these expenses, even though the cases largely relate to charges that they wish to bring against Mr Dotcom and his associates.

Crown Law hours spent

The figures:

are as at 8 February 2017;
include work on both domestic and mutual assistance (United States initiated extradition) legal proceedings;
exclude work completed to provide advice to other Government Departments, for example the Police or the GCSB who respectively picked up the bill for Crown Law’s advice to them; and
include most Crown Law legal staff time and some support staff time.

2011: 432.10
2012: 7,356.67
2013: 4,087.50
2014: 5,742.27
2015: 4,911.80
2016: 3,207.26
2017: 4.77
Total: 25,742.37

25,000 hours.

Using a conservative estimate of the value of the time spent ($140 per hour,¹ which is the rate a Crown Law junior prosecutor would be billed out as – senior solicitors’ time is likely worth more, support staffs’ likely less), this comes to around NZD $3.6 million.

Disbursements

New Zealand has also covered the bill for work completed by external counsel on Crown Law’s behalf and expenses paid by Crown Law in relation to the Dotcom/Megaupload matters – another NZD $2.2 million.

This includes: $1.98 million on external barrister/solicitor fees, $171,800 on travel and accommodation, $23,151 on Court filing fees, $20,125 on photocopying, and $17,356 on professional fees including research material.

An excessive burden?

At least NZD $5.8 million has been spent on Kim Dotcom et al. by New Zealand so far, and it begs the question: was it worth it?

Should we have refused the United States’ mutual assistance request when it was made? Section 27(g)(i) of the Mutual Assistance in Criminal Matters Act 1992 allows New Zealand to refuse a request made by a foreign country if “in the opinion of the Attorney-General, the provision of assistance would impose an excessive burden on the resources of New Zealand”.

Kim Dotcom had hundreds of millions of dollars worth of assets before the raid on his home and it’s not a shock that he has aggressively defended the cases brought against him.

If spending $5.8 million+ has not been an excessive burden on New Zealand, what amount would be?

¹ This is a lower rate to that used by David Fisher in his September 2015 article of $198/hour.

^{Image credit: Sarah-Rose}

The full response from Crown Law, including the breakdown of expenses incurred is embedded below.