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Rt Hon Sir (Johann) Thomas Eichelbaum GBE PC QC, 1931 - 2018

By Geoff Adlam

A leader of New Zealand’s judiciary and leader of the legal profession, Sir Thomas Eichelbaum was the last of three men who have held the roles of both Chief Justice and President of the New Zealand Law Society. He died on 31 October 2018 in Paraparaumu aged 87.

Sir Thomas was born in Königsberg, Germany on 17 May 1931 to Dr Walter and Frida Eichelbaum. His family left Germany in 1938 when he was aged seven to escape the Nazi regime and came to New Zealand.

Many years later when he was appointed to Fiji’s Court of Appeal, Sir Thomas gave an interview to a Fijian newspaper and said he had been born in Germany and migrated to New Zealand as a young child. The newspaper headline the next day read: “German Judge appointed to Court of Appeal” (Law Stories, Butterworths 2003, page 94). He was later to make a hurried departure from Fiji in May 2000 when the second military coup took place. Sir Thomas became a naturalised New Zealander in 1946.

He was educated at Hutt Valley High School before completing an LLB at Victoria University of Wellington in 1954. He then moved into private practice in Wellington.

Sir Thomas married Vida Beryl Franz in 1956 and they had three sons. Lady Eichelbaum died in 2013. He was admitted as a barrister and solicitor in 1953.

He became a litigation partner at Chapman Tripp and Co in Wellington in 1958 and remained so until 1978, when he moved to practise as a barrister. He was appointed Queen’s Counsel the same year. While in legal practice he lectured in civil procedure at Victoria University of Wellington and was an assessor for New Zealand in commercial law, a member of the High Court Procedure Research Committee from 1969, and a member of the High Court Rules Committee from 1969 to 1975.

Recognition of his prominence as an advocate came also when he was called to act as counsel in several Commissions of Inquiry. These included the Commission of Inquiry into the Proposal to raise the level of Lake Manapouri (1970), the Royal Commission of Inquiry into Chiropractic (1978-79) and a Commission of Inquiry into Allegations of Impropriety in Respect of Approval by the Marginal Lands Board of an Application by James Maurice Fitzgerald and Audrey Fitzgerald (1981).

President of New Zealand Law Society

His active career in law society affairs culminated with his election as President of the New Zealand Law Society from 1980 to 1982 (he was never President of the Wellington District Law Society, as has been reported). A major interest during his term as President was the maintenance of professional competence and a credible public image in a time when the “traditional aura and mystique of professions” no longer sufficed.

“It is in our dealings with the man in the street that I think we still have the furthest way to go. He increasingly wishes to know what is involved in his transaction, what steps have to be taken, what time it will take, and, importantly, what it will cost. Our standards need to match his reasonable expectations,” he wrote in the Law Society’s 1980 annual report.

One year later, in his final report, he was encouraged that the legal profession was more conscious than in the past of its public image and of the need to keep in step with reasonable public expectations: “The profession must I consider continue to move in the same direction and at a good pace if it is to hold its standing in the community. And we must achieve this advance without weakening the principles of fearless independence, total integrity and complete confidentiality: indeed all the time-honoured tenets on which the profession is based.”

On his retirement as President of the Law Society the Council passed a resolution of appreciation. This described him as “a very friendly, a humane and cheerful and essentially, modest man”. It went on to say that "these qualities, coupled with his high professional and administrative ability, his breadth of vision and his meticulous attention to detail, have resulted in the Society being at all times properly represented and very well served in the early 1980s. His influence will be long felt and the profession owes him much."

Evidence of Sir Thomas’ modesty can be found in an anecdote told by Ian Haynes and former Law Society Executive Director Alan Ritchie in Law Stories (LexisNexis, 2003, page 390): “…after he had been appointed Chief Justice and knighted, he generously swapped his pre-assigned aircraft seat with a chap of no more than 18 who wished for some reason to change. The flight was one of those with an earnest attendant who had memorised the names and seat numbers. The youngster seemed to enjoy the extra little bit of attention which can often ease the way for tired travellers and took no exception either to being called ‘Sir Thomas’. As one would expect, Sir Thomas didn’t seem to mind at all.”

Appointment to the High Court bench

He was appointed a Judge of the High Court on 29 October 1982 and as an additional judge of the Court of Appeal in 1984. 

On his swearing-in as a Justice of the High Court, Law Society President Bruce Slane said that behind a quiet, moderate and thoughtful approach was a keen mind, concerned about principles, but at the same time, greatly understanding of human foibles and tolerant of the inadequacies of others.

“Mr Slane reminded the court of earlier comments made by His Honour on criticism of the Courts. “… you acknowledge the right of people to make legitimate criticism on a judicial process and the importance of responsible informed public debate. You recognise the dangers of the instant three sentence reaction and the implications of lack of impartiality and integrity. It can only be said that your appointment to the Bench strengthens it and your understanding of the role of the media strengthens the understanding of the Courts for the tasks performed by the media and the importance of both.” [LawTalk 163, 1 December 1982, page 3].

“Acknowledging that a lot of people have been concerned with the Law Practitioners Bill presently before Parliament, Mr Slane said that if there were one person who should be identified with the reform of the Act it was His Honour.

“… not only did you help to formulate the policy underlying the reform proposals which was progressive enough to meet the demands of those who would have the legal profession changed, it had to be correct enough to withstand legal criticism.

“You saw the need for the Society to look ahead and thus were responsible."

As a judge he was recognised as being hard-working and astute. Describing him as “extremely courteous”, Judge John Cadenhead said Sir Thomas had a great gift for marshalling detail, besides being a brilliant administrator (Law Stories, Butterworths NZ, 2003, page 67).

Chief Justice of New Zealand

In 1989, when he was aged 58, he was appointed Chief Justice of New Zealand. It was the first time that the Chief Justice had been appointed from the ranks of the already-serving judiciary. His appointment was recognised with appointment as Knight Grand Cross of the order of British Empire (GBE) on 6 February 1989, and appointment to the Privy Council later in 1989.

For the first time, a New Zealand Chief Justice was sworn in by their predecessor. Sir Ronald Davison expressed his delight at being the first retiring Chief Justice to administer the oath of allegiance to his successor.

Legal historian Peter Spiller says Sir Thomas proved to be an efficient Chief Justice who demonstrated outstanding administrative ability, a thorough and painstaking approach, and devotion to duty. An important achievement during his tenure was the creation of the Criminal Appeal Division of the Court of Appeal in 1991.

“He showed an acute intelligence and a strong and decisive personality. He had the ability to set and meet high standards, to consult, and to seek advice. These qualities were combined with a modest, approachable, and likeable personality. During his decade in office, Eichelbaum CJ created an effective infrastructure for the judiciary through far-sighted reforms that enhanced the quality and efficiency of the court system.” (New Zealand Court of Appeal 1958-1996, Brookers Ltd, 2002, page 27).

Dr Spiller says that in his judgments, Sir Thomas showed a sound grasp of the facts and the law and the ability to write valuable judgments on difficult questions of law and practice.

“He took seriously the role of providing practical guidance to both judges and counsel on matters at issue, while at the same time being well aware of the need to respect judicial discretion and assessment of facts.” (Ibid, page 28).

While he made many changes to improve the functioning and accessibility of the courts during his tenure as Chief Justice, the one which received most publicity was probably his decision to abolish wigs in proceedings in the HIgh Court. As Chief Justice during the 1990s he also oversaw the rapid advancement of the use of computers in the legal profession,including their introduction into court proceedings. An enduring change was introduction of the Criminal Appeals Division of the Court of Appeal, along with a case management system.

Sir Thomas was also a supporter of the abolition of the right of appeal to the Privy Council. He was known to believe that the demise of the Privy Council appeal was inevitable, but as he told the audience at a public address on the centenary of the Victoria University Law School shortly after his retirement as Chief Justice “I have been wise enough, or cunning, never to predict when this might happen.”

He then went on to show his frustration with what he saw as an endless debate over the future court structure: “During my term of office I did not actively campaign for abolition of the Privy Council appeal, taking the view that as with wigs, such changes generally find their own right moment, with a little help. But with this subject I feel a growing sense of impatience that the right moment has been overlong in coming. Without detracting from the past value of our access to the Law Lords, for a vibrant South Pacific nation, priding itself on independence and innovation, the Privy Council link must increasingly be seen as a fine concept whose time has now passed.” ("The  Law School: Recollections and Thoughts for the Future” [2000] VUW Law Review 5).

The time had passed. Five years later New Zealand’s Supreme Court sat for the first time, with his successor as Chief Justice as the presiding judge of the nation’s highest court.

Retirement

He retired as Chief Justice on 17 May 1999. He was awarded an honorary LLD from Victoria University in the same year. He continued to make a substantial contribution to New Zealand on his retirement by leading a number of investigations. Several of these proved to be controversial and Sir Thomas’ judicial career and performance was probably seen as equipping him for a difficult task.

Appointed to head a ministerial inquiry into the conviction of childcare worker Peter Ellis in March 2000, Sir Thomas’s findings were released in March 2001. His report upheld the guilty verdicts and was widely criticised.

Sir Thomas chaired the Royal Commission on Genetic Modification from 2000 to 2001, with the Commission presenting a comprehensive report in July 2001. He also carried out an independent inquiry into New Zealand’s loss of co-hosting rights for the 2003 Rugby World Cup. His report was released in July 2002 and concluded that the New Zealand Rugby Football Union seemed unprepared for the role of host.  The Union’s Chairman, Chief Executive and Vice President all resigned following his report.

After his retirement Sir Thomas also served as a judge on the Supreme Court of Fiji and the Court of Appeal of Fiji, and he was also a non-permanent judge of the Hong Kong Court of Final Appeal.

Tributes

Chief Justice Dame Sian Elias says serving and former members of the judiciary have been deeply saddened to hear of his death.

Dame Sian says Sir Thomas was a reforming leader of the judiciary who modernised courts administration during his time in office.

"He was held in the highest affection by the judges who served under him both for his leadership and for his personal warmth and kindness. He was greatly admired as a very fine judge."

New Zealand Law Society President Kathryn Beck says the legal profession will be saddened at news of the death of Sir Thomas.

“Sir Thomas was Chief Justice from February 1989 to May 1999. He was the first Chief Justice who had served as a member of the judiciary before his appointment. He was an excellent administrator who was respected by all as a person of integrity who was also willing to consult and seek advice where necessary. The Criminal Appeal Division of the Court of Appeal was established during Sir Thomas’ time as Chief Justice and this was a very successful initiative. A humble and very approachable man, his time as Chief Justice was viewed as one where the efficiency of our courts was greatly enhanced.

“Sir Thomas was also President of the New Zealand Law Society from 1980 to 1982. Before that he had been very active in the legal profession and was a key player in enactment of the Law Practitioners Act 1982, which made what were very progressive changes at the time to the regulatory requirements of the profession.

“Sir Thomas arrived in New Zealand in 1938 at the age of seven, a refugee from Nazi Germany. His rise to prominence in the legal profession and the judiciary from such a beginning is in itself a statement of his determination and ability. We have lost an important contributor to our justice system.”

New Zealand Bar Association President Kate Davenport QC says Sir Thomas was also a champion of diversity.

"During his term, the first Māori High Court judge was appointed. Sir Thomas also called for the removal of informal barriers to women in the law and the judiciary. As Chief Justice he saw the appointment of the first women to the High Court and was succeeded by the first woman Chief Justice, Dame Sian Elias," she says.

"It is sad to see the loss of an excellent legal mind who made an invaluable contribution to New Zealand, both in his practice of the law and in the important role of Chief Justice," the Secretary of Justice Andrew Bridgman says.

"We are much better off for his contribution to public life."

Photo of Sir Thomas Eichelbaum portrait
Sir Thomas Eichelbaum. Portrait by William Sutton (1998). Photo: Cameron Drawbridge.

Last updated on the 8th November 2018