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Hon Sir John Joseph McGrath KNZM QC, 1945 - 2018

By Hugh Rennie QC and New Zealand Law Society

Sir John McGrath who died on 19 October had a long career in the law, ultimately serving as a judge of the Supreme Court of New Zealand. His eulogy on 24 October was delivered by the Chief Justice, the Rt Hon Dame Sian Elias, who described his life as well-lived and productive, full of love and excitement. John was a former Solicitor-General, Chancellor of Victoria University of Wellington, and a student leader at Victoria University of Wellington in his youth.

Born in Wellington on 10 March 1945, he was influenced by his father Denis, a lawyer in private practice who also served as a Wellington City Councillor, including as Deputy Mayor. Denis was also President of the New Zealand Law Society from 1968 to 1971. His mother Margaret was an artist, and as the oldest of four children, John enjoyed a creative and stimulating childhood.

From primary school in Wellington, he went to Huntley School in Marton, and then to Wanganui Collegiate.  

At Victoria University of Wellington, John threw himself into study but also found time to join the Student Association executive. He was elected Student President in 1966 at a time of wide student concern about issues such as the Vietnam War and apartheid. He was respected for his even-handed style and later became national student president. In this role he undertook travel to Britain, the USA and the Soviet Union, sparking a wide ranging interest in politics and international affairs which continued throughout his life.

But he was always a lawyer and not a politician. He graduated LLM in 1968. In 1969, after clerking at Bell Gully, he joined the family firm.  That year he married Christine Swallow of Palmerston North, who had been a childhood acquaintance until they reconnected at a series of 21st birthday parties and fell in love.  With his father’s encouragement, John moved to the firm Buddle Anderson Kent & Co. (which later became Buddle Findlay), quickly establishing a strong reputation in litigation. John and Chris’s family grew with the arrival of their children, Lucy and Tom.

In 1984 John went to the independent bar as a barrister sole, which proved to be a successful move, and he became a Queen’s Counsel in 1987. He continued his involvement with the VUW Council, ultimately becoming Pro-Chancellor and then Chancellor from 1986-1989. Happily, this coincided with Chris’s graduation and he capped her with a degree in music. In 1992, the university awarded him an Honorary Doctorate in law.

"The best legal job in the country"

In 1989, he was appointed Solicitor-General and head of the Crown Law Office, a role he later described as “the best legal job in the country.” Following major changes in the public sector, and the global financial storms of the 1980s, the office was under great pressure in areas as diverse as competition law, taxation, Treaty of Waitangi claims and human rights. John’s personal organisational and legal skills transformed the office into its modern form. He had a reputation for supporting many women lawyers, who went on to make distinguished careers.

Dame Lowell Goddard, who was both the first Māori woman to be appointed a Queen’s Counsel and as a Justice of the High Court, had huge admiration and respect for Sir John and remembers when he was appointed Solicitor-General in 1989 on the elevation of Paul Neazor to the High Court Bench.

“He was an acknowledged leading commercial Silk at the time. On his appointment to the role he immediately set about recruiting and building up a team to support him in taking Crown Law forward to become what Julian Miles QC was later to describe as 'a powerhouse in the law'. During his years of leadership, the Crown Law Office under John was an energetic and vibrant work place, focused on excellence in the practice of the law.  A notable feature of the team of youngish practitioners he recruited in to help him take the Crown Law Office forward was the number of young women practitioners. He was very supportive of the careers and aspirations of all who worked for him and encouraged his team to take on leading roles in difficult litigation and in trial and appellate work. The opportunities that he provided for all who worked with him in the Crown Law Office of the 80's and 90's set a real benchmark.

"the consummate Solicitor-General"

"For me he will always be the consummate Solicitor-General, who discharged the various demanding roles with excellence and equanimity - as Second Law Officer, exercising the many responsibilities of that role; as the Government's chief legal adviser and counsel; as CEO of the Crown Law Office; and as the leader of the legal profession.  In all of these roles he always led from the front and was that rare combination of legal acumen, strategic thinking, good sense and articulacy that makes a top advocate. He was a courageous lawyer and one of the kindest and most generous of men," says Dame Lowell.

Mary Scholtens QC also has fond memories of Sir John.

“I met John McGrath in 1987 when Watties and Goodman Fielder were challenging the Commerce Commission’s decision to decline to give a clearance or grant an authorisation under the new Commerce Act.  The High Court, facing issues of jurisdiction under new legislation and the withdrawal of the Commission, appointed John as amicus, and he asked the then Solicitor-General for a junior.  I was an Assistant Crown Counsel at Crown Law.  I worked with John in his Terrace chambers for the best part of waking hours for a week to prepare the submissions for the High Court (presented at the hearing back then).  We then worked solidly for another week for the Court of Appeal.  Looking at the report I see the argument took two days before a court of five, and there was only seven days between the judgments.

“John was generous in drawing me into the heart of the work. I had the first of many discussions with John about statutory policy and principles, about underlying values, about what approach best served the public interest, about how to present material.  These were bedrock themes he pressed as Solicitor-General, and in his judgments.   We also trod a later familiar path about when decision-makers should enter the fray, when they should provide affidavits, and when cross-examination should be permitted. When it was over, typical of the thoughtful gentleman he was, he wrote a letter to the Solicitor-General commending my work.  

“I was delighted when, in 1989, he was appointed Solicitor-General.  I was his junior on his first appearance as Solicitor-General in the Court of Appeal, echoing issues of Ministerial affidavits and cross-examination.  And again with (then) Douglas White QC on John’s first appearance before the Privy Council. 

Culture audit

“As Chief Executive of the Crown Law Office John did what today might be called a 'culture audit', as part of restructuring it into teams and changing the focus of our practice. He called on a number of women, including me, to step up and take on a leadership role. From there he mentored and sponsored us, firm in the view that despite the fact that it was uncomfortable for some of us (and our clients), women should be participating at the highest levels. He encouraged and, if necessary, facilitated that. He led us to understand our role as Counsel to the Government – to ensure Government acted lawfully, and wasn’t prevented from implementing its lawful policy.

“I worked with him on many cases and pieces of advice. I took comfort from the fact that even he could occasionally be nervous in his delivery in the courtroom and in the Beehive.  But then someone would throw out a difficult question or a challenge, and his clarity of thought would dominate and drive his compelling advocacy.  My clearest takeaways from working with him was the value-based approach he brought to his legal and managerial work at Crown Law, the commitment and effort that went into his work, and his compassion.” Ms Scholtens says.    

Sir John led many of the key cases himself, including Privy Council appearances (particularly in commercial and taxation cases).  As chief legal adviser to successive governments, he was respected for his integrity, independence, perception and industry. Particular highlights from this period include advising on the Māori Fisheries Settlement of 1992, representing New Zealand at the International Court of Justice in the French nuclear testing case in 1995, and reporting to the Government on the desirability of removing the right of appeal to the Privy Council and replacing it with a New Zealand-based final court. John’s appearances at the Privy Council had convinced him that, although the British judges were “clever and charming”, they had inadequate knowledge of New Zealand conditions to be developing law fit for our needs.

The Court of Appeal and Supreme Court

In July 2000 John was appointed to the Court of Appeal, a rare direct appointment reflecting his seniority and his ability.  At his swearing-in, John said that he regarded the judicial oath as his “declaration of independence” from his former loyalties to government.  In May 2005 he was appointed to the Supreme Court, serving until his retirement in 2015. He was also an acting judge of that court in 2016-2017.  

John found his work on the Supreme Court enormously satisfying, involving as it did cases on the Treaty of Waitangi, the New Zealand Bill of Rights Act, tax avoidance, arbitration, the status of refugees and extradition, as well as commercial cases.  At his final sitting on the occasion of his retirement, he expressed his concern at proposals to remove from legislation a reference affirming the rule of law. His comments were cited by Jacinda Ardern, then an opposition MP and Justice spokesperson, who successfully introduced a Supplementary Order Paper to retain the reference.

Outside the law, John had a variety of interests including music and travel, which he shared with Chris, and the study of international affairs and New Zealand public affairs.  Over many years, he escaped to a family bach at Waikanae, where he swam, fished, walked the bush hills and enjoyed catching up with friends and his growing family, which by 2009 included four grandchildren.  

John was appointed Distinguished Companion of the New Zealand Order of Merit in 2007, re-designated Knight Companion in 2009. While he valued this recognition, as the Chief Justice observed, he wore these honours lightly. From the early 2000s he developed prostate cancer, which he faced and overcame privately.  Good times continued until the cancer recently returned and, despite the excellent treatment he received at Wellington Hospital and his own determination, he passed away on 19 October 2018. He is survived by his wife Chris, daughter Lucy and son Tom, and their families.

Note: A version of this obituary first appeared in Stuff newspapers and on Stuff.co.nz.

Last updated on the 15th November 2018