Tag: ministry of justice

Lockdown survival tips for New Zealand lawyers

Posted on by Matt Taylor Leave a comment

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.
  • 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

Wills/Enduring Powers of Attorney

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

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

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)

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

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

Health Act orders

Other resources

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.

Posted in Law, New Zealand, Technology

OIA Adventures: Learn From My Mistakes

Posted on by Matt Taylor 4 Comments

Part 1 | Part 2 | Part 3

Information

I wouldn’t have picked this post to cause so much drama. But it did.

 

Here’s a couple of tweets I liked:

“Why don’t you research something that is educationally significant” – Like OIA compliance at schools, Ms Kelly? matthewtaylor.co.nz/2012/02/12/oia…

— David Ritchie (@dritchie) February 13, 2012

@timoslimo @MattTaylor Love the way schools insist on knowing who are you and who do you represent. #panicpants

— Bill Blackstone (@SirWB) February 13, 2012

And this post from drone on supplying ‘who are you?’ information:

‘[in response to another post] This, and your other suggestions, are undermining the spirit and intent of the OIA. It is not up to the schools to decide whether they should hand over information based on any criteria of use or who is requesting it.

It’s not about being polite, it’s ensuring that the “norm” does not become something where those providing information under OIA have more wriggle room out of providing it than the law provides.’

Official Information Act guidance for schools

If anyone is curious, this is the only guidance schools have over Official Information Act requests, from the New Zealand School Trustees Association:

‘Official Information Act (OIA) Requests: From time to time boards bear the brunt of broad requests or fishing type expeditions. A recent case in point is a request in the past couple of weeks from the Leader of the Oppositions office to principals for information relating to national standards.  We have had calls from boards and principals about the time and effort these sorts of things create. A reminder of the process when dealing with an OIA request (see very helpful guidelines from the Ombudsmen).

  • you should ensure that the board are aware of any information that is intended to be released from any member of staff
  • you have up to 20 days to respond to the request (in certain cases you can defer for administrative reasons – but this is limited)
  • If the request relates to “work in progress” you may not be able to provide a definitive answer to what is requested and you should identify that is the case.
  • you should ensure that what information the board supplies does not compromised the privacy of any individual(s)
  • you are not required to write an extensive response – often a yes/no, numbers or simply a copy of the material will do
  • sometimes it is not possible to establish the exact information eg if you are asked how much training has been undertaken specifically for one purpose it may be difficult to separate this out from the normal PD undertaken in the school.  There is no requirement to establish new separate databases for such things, particularly where this would require additional administrative costs.’

The 20 day bullet point is interesting because the OIA states: “as soon as reasonably practicable, and in any case not later than 20 working days”.

In fact, in 2008 the Office of the Ombudsman released this statement (via), titled ‘Some public servants play games with OIA requests’:

‘Beverley Wakem says the Office has observed an increasing tendency by a few government departments and Ministerial offices to ignore the provisions of the Official Information Act over the timing of responses to requesters.

“While in some cases this was clearly a misunderstanding of their obligations, there is also a regrettable tendency to game the system and delay responses until the complainants’ interest in the matter had passed,” she says.’ [emphasis mine]

Learn from my mistakes

Wording of the emails

1) When sending a request to multiple recipients, test it with a few first. Then make appropriate changes. Including ‘procedures and practices’ in my request might have been a good idea. However most schools got the idea that by policies, I also meant procedures and practices.

The follow-up email

2) Ask for the recipient to tell you when they have received your request. That opens the door for you to send a nice email a few days later to make sure they got your first email if they haven’t replied.

Some schools appreciated the half way follow-up reminder. Others didn’t. Probably because of the Ombudsman line.

3) Let them know that you know the time limit. “I look forward to your response within 20 working days.” Or you can calculate the day.

Helpful links

Image credit: Heath Brandon

Posted in Law, New Zealand