Former commercial lawyer, Law Commissioner, active in Law Society affairs, legal writer and a great communicator who was gifted with a fearless ability to provoke and tease, Donald Dugdale died in Auckland on 30 August 2011.
Born in Te Aroha on 1 October 1933, he was educated at King’s College, Auckland before studying law at Auckland University from 1950 to 1955, where he graduated BA, LLB in 1956. He was admitted to the bar the same year and began a long and distinguished career in the law.
Mr Dugdale married Yvonne Tootell in 1955, and they had four children.
While carrying on a busy practice and becoming a senior litigation partner with Kensington Swan in Auckland, he gave much time to working for the legal profession. He was president of the Auckland District Law Society, Vice-President of the New Zealand Law Society (1985), a member of the New Zealand Council of Law Reporting (1977 to 1982), served on the Council of Legal Education, and chaired the New Zealand Law Society’s Legal Education Committee from 1977 to 1982. While NZLS Vice-President he was a member of the Ethics Committee, which oversaw the decision to allow lawyers to advertise their services.
Mr Dugdale was an active legal writer throughout his career, and his publications included New Zealand Hire Purchase Law (Butterworths, 3rd edition 1978) and Credit Contracts (Butterworths 1981).
In May 1996 he was appointed to the Law Commission as a Commissioner. His commercial law background meant he led the commercial team, and he was involved in many initiatives to reform the law in this area. He worked at the Law Commission until 2002, when he began a career as a barrister.
As an advocate, Donald Dugdale had a powerful presence in court. One commentator noted of his advocacy before he moved to the Law Commission: “Donald Dugdale was a learned, outspoken, and fearless lawyer, who specialised in civil commercial work. He had a great gift of language that was reflected in his elegantly crafted arguments. He was a traditionalist and favoured oral skills over a written presentation.” (John Cadenhead, “Life in the Courts”, Law Stories, page 66, LexisNexis, Wellington 2003).
Outside the courtroom, it is also important to pay tribute to his great power of stirring sacred cows and forcing re-examinations of some institutions. This was facilitated by the ability to string words together into memorable phrases, or soundbites (before the word became popular). One of his comments on the proposed Bill of Rights has been recorded for all time in Hansard, when in 1990 he was reported to have said the Bill embodied the “monstrously anti-democratic assumption that the ordinary New Zealander cannot be trusted to know what is good for him”.
As a Law Commissioner, while conscious of the solemnity of his office and position, he was also able to translate difficult concepts into understandable and often amusing words.
Writing in the New Zealand Herald on 18 February 2002 on the contracting out provisions for relationship property, he noted: “As the law stands, there is no contracting-out method guaranteed to survive the tinkering urge of some judge”, and continued “There is enough loneliness in the world without it being increased as a consequence of legislation being framed with insufficient refinement.”
“It ought to be possible for couples to decide to marry or cohabit secure and confident in the knowledge that any agreement they have made regulating property matters will be given effect to. The usual view of bureaucrats and politicians is that measures like the one under discussion need time to shake down before they are revisited. This is inappropriate when people's domestic happiness is at stake.
“The precise reform that is needed is a simple repeal of section 21J of what is now called the 1976 Property Relationships Act. A bill to do this would take about five minutes to draft. here is need for such a change and it is best done quickly.”
That same year, in statement on a Law Commission discussion paper on police powers of seizure, arrest and search powers, he observed: "No doubt it adds to the sporting attraction of the criminal processes if there is a chance of the accused being restored to his friends...on the grounds of some Bill of Rights technicality, but it does little to improve law enforcement."
For a while in the early 1990s Donald Dugdale wrote a series of occasional “Opinion” articles in the New Zealand Law Society’s LawTalk magazine. These looked at various legal institutions and were guaranteed to provoke a series of often angry and outraged letters in subsequent issues.
In a piece suggesting ways in which members of the legal profession could pay homage to judges in public places, he concluded: “Life has enough hazards and I am afraid that unless district court judges are prepared to wear gang patches or other identifying insignia the procedure I propose will have to be confined to judges of the High Court” (“Due Deference, LawTalk 418, 25 July 1994, page 9).
In the same article he made the definitely tongue-in-cheek comment that “the only High Court Judge I would not recognise in the street is someone called Fraser J, who I suspect does not really exist”. This provoked a veritable flood of letters (for LawTalk) in response, including one pointing out that Justice Fraser had been sitting in Christchurch for a number of years in the High Court, and another – from a retired District Court Judge – asking “Who is Donald Dugdale?”
In another article (“Desacralising lawyers”, LawTalk 368, 13 April 1992, page 5, he started by stating “The legal profession is a service industry” and proceeded to attack the wearing of wigs and gowns in court – a matter to which he was particularly opposed.
“Counsel’s tables in the new Auckland High Court are wired to enable barristers to plug in computers in cases of appropriate length and complexity. Wigs and computers juxtapose oddly. It is like a witchdoctor prescribing antibiotics,” he concluded.
A prolific writer, he continued to contribute to legal literature until quite recently. The October 2007 issue of the New Zealand Law Journal includes an article by Donald Dugdale gently despairing of the damage done to the Wills Act by the members of Parliament’s Justice and Electoral committee who "decided to do their own little bit of meddling" to make the legislation "accessible and useful to anyone who may make a will." So they substituted the word "testator" with "will-maker". “This is a change for the better only if you believe that the word milk-maker would be an improvement on the word cow."
His wit, energy and perception will be sadly missed.
Tribute by Sir David Baragwanath, Former Law Commission President and Judge of the New Zealand Court of Appeal
Don is a legend in our time. Like Dr Johnson he exhibited great and unannounced kindness to the young and vulnerable; he was succinct, lucid and fearless in exposing pretensions of those in authority; and he enriched our intellectual store.
He cared for the law and its practice, setting standards of concision in written and oral argument, accepting Law Society office, writing brief and useful texts, and serving on the great Contracts and Commercial Law Reform Committee.
When Sir Douglas Graham invited me to suggest names for appointment to the Law Commission I twice rang Donald for advice. On the second occasion, exhibiting the only hesitation I have experienced with him, he indicated his own interest. As expected, his contributions were immense. The debates with Margaret Lee, Denese Henare, Paul Heath and Tim Brewer, on every topic, were hilarious, often teasing the President; our views tended to start from opposite poles.. But a good listener, with a lightening mind, he would pick up from the discussion, and express simply, whatever emerged as the core idea. His concern was to identify, with as few words as possible, where justice lay and how it could be achieved.
He was concerned for each of the three key elements of decent law: clear and practical rules, especially in commerce; sensible procedures; and meeting minority needs. While he is best known for the first, locking the scrum with Justice Heath, his contributions to Judge Lee’s Evidence project and Justice Brewer’s Criminal Procedure were considerable; as were those concerning Denise’s Treaty jurisprudence and those affecting children and other minorities, among them homosexual New Zealanders.
His role as enfant terrible – “ bicycles marked ‘for appellate use only’” – could identify, if sometimes appearing an entertaining distraction from, an important contribution. Overall he was a loyal and respected colleague for whom the team of Commissioners and staff developed a great affection. His legacy includes not only much of New Zealand’s admirable contract legislation, as well as other statutes, but acts of kindness, courage, and wisdom, over a full career.