New Zealand Law Society - Hon Sir Muir Fitzherbert Chilwell QC, 1924 - 2014

Hon Sir Muir Fitzherbert Chilwell QC, 1924 - 2014

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Sir Muir Chilwell died in Auckland on 10 June 2014 aged 90. From a career as a renowned barrister Sir Muir became a highly respected judge of the High Court who was known for a considerate and courteous style which was reflected in his decisions.

He was born in Auckland on 12 April 1924, the son of Benjamin and Loris Chilwell. He was educated at King’s College in Auckland before attending Auckland University where he graduated LLB in 1949 and LLM with first class honours in 1950. He was awarded the Auckland Law Society’s Hugh Campbell Scholarship.

Sir Muir later reflected that family connections had influenced his decision to become a lawyer. His grandfather had served as a Magistrate in New Plymouth, and three uncles were lawyers.

He retained a connection with Auckland University by lecturing in conflict of laws, conveyancing and taxation law from 1953 to 1960. Former High Court Judge Sir Ian Barker recalls that he first met Sir Muir as a student:

"I first encountered Muir in the late 1950s when, as a final year law student, I attended his lectures in the strangely-combined paper called Conveyancing and Taxation. Muir was well-versed in both topics which was fortunate for all of us in the class of about 25, since most of us who were employed as law clerks for about 5 pounds a week needed to know about conveyancing at least. Tax was as arcane then as it is now. This paper was classified as a 'certificate' subject which meant that, if the lecturer thought you would pass the final examination and had passed term test, he (there were no shes in those days) gave a certificate to that effect and you did not have to sit the final. Such was Muir's humanity and generous disposition that everybody got the certificate - even the back-sliders!"

In 1947 Sir Muir married Lynette Cox. They had two daughters and one son.

Sir Muir was admitted to the bar in 1949. This followed a long time as a law clerk, beginning in 1941. The Second World War intervened and Sir Muir’s war service began in 1942 as a driver in the New Zealand Army Service Corps. By the end of the war he had moved to the Royal New Zealand Navy as a Naval Airman.

He began legal practice in 1949 with the firm Haddow Haddow & Chilwell (later to become Haddow Chilwell Pain & Palmer) where he became a partner. He left the firm in 1965 to practise as a barrister sole. On 11 August 1965 he was appointed Queen’s Counsel. His proficiency as an advocate was further recognised on 4 November 1970 when he was appointed Queen’s Counsel for the Australian state of Victoria.

His connection with the Victorian bar arose when he was briefed to appear in an estate duty matter there. Victorian County Court Judge Graham Fricke, who had met Sir Muir at a law conference in Auckland some years earlier, recalled the quick turn of events:

“Muir asked me if I would like to be his junior in the Victorian litigation. I agreed promptly. I helped to arrange Muir’s admission in Victoria and he flow over to argue the case before Mr Justice Pappe.” (An Evening with the Judge, Strictly Literary, 2011, page 138). The outcome was not the best. Just as Sir Muir and Graham Fricke were preparing to argue the case in the Privy Council the plaintiff decided enough was enough.

Sir Muir was noted for his commercial law practice and specialised in civil procedure, property law, trusts and wills, taxation and intellectual property. He was well known as a “plaintiff’s lawyer” in the field of personal injury law before the advent of Accident Compensation.

Sir Ian Barker remembers appearing with Sir Muir.

"I was junior to Muir in the early 1960s in my second appearance in the Court of Appeal before such renowned judges as KM Gresson, North and Turner. This was a time when it was a 'big deal' to travel from Auckland to appear in that court. Muir was a delight as a leader. He taught me a lot of skills and impressed everyone with his conscientious mastery of some difficult facts and legal concepts. His arguments were extremely finely-crafted and comprehensive. It was all about 'reasonable access by sea' - something which Muir with his sailing persona knew all about. It was not his fault that we lost!" 

Extremely active in the legal profession, Sir Muir was closely involved in many organisations. He was a member of the Contracts and Commercial Law Reform Committee from 1966 to 1968 and chair from 1968 to 1973. He was a member of the Law Revision Committee from 1965 to 1973, President of the Medico Legal Society from 1969 to 1970 (and elected a life member in 1989) and a member of the Disciplinary Committee of the New Zealand Law Society. Sir Muir was a Council member of the Auckland District Law Society from 1960 to 1967 and President from 1967 to 1968. He chaired the Legal Research Foundation from 1977 to 1981 and was also a judicial member of the Council of Legal Education from 1985 to 1991.

Sir Muir was appointed a Judge of the Supreme Court (now High Court) of New Zealand in 1973. He was sworn in on 26 October 1973 and began a career on the bench that was to end with his retirement on 24 May 1991 as Senior Puisne Judge.

Judge John Cadenhead recalls that Sir Muir was a judge with a fine legal mind who was thorough and painstaking, and conducted his court in “an atmosphere of judicial calm” (Law Stories, LexisNexis NZ Ltd, 2003, page 65).

A fellow member of the High Court bench, Sir Ian Barker, remembers with gratitude the help he received from Sir Muir:

"Muir could not have been more helpful to a new judge such as myself. Long before benchbooks were invented, Muir's set of jury directions on all commonly-encountered situations were in demand from almost all his brethren. One could use his precedents knowing that the topic in question had been exhaustively researched and the direction was as appeal-proof as possible."

Sir Ian says Sir Muir was ever willing to provide advice to a colleague on the resolution of a practical problem.

"I recall sitting in Whangarei in that town's first ever defamation jury trial where the late Paul Temm QC (to my surprise) elected to call no evidence for the defence. Whangarei's library in the early days there of High Court sittings was virtually non-existent. That fact necessitated an urgent call to Muir for directions on qualified privilege and general defamation topics. They were put on the next bus north and I was able to work that night on the summing up." 

Sir Muir was judge in Harder v NZ Tramways Union [1977] 2 NZLR 162 in which a law student brought an action in the High Court to enforce a union’s obligation to give notice of an intended strike in an essential industry. The student argued that a planned bus strike would penalise him as he would have to take a taxi to lectures. Sir Muir found that the student had standing and the right to expect that the strikes would be legal, holding “Each member of the public has the right to expect that his neighbour will obey the law.”

Peter Williams QC has expressed his admiration for Sir Muir’s abilities.

“Known for his patience and his erudition, Muir Chilwell always spoke quietly and seemed to have an almost humble attitude towards his job. But beneath that modest veneer was a man of steel and tremendous dedication. He was one of the first judges to recognise that provocation must be considered in relation to the mind of the accused and that, in appropriate cases, depression may be an important factor when considering whether the verdict should be murder or manslaughter.” (A Passion for Justice, Shoal Bay Press, 1997, page 75).

Sir Muir’s attention to detail and his concern to ensure that all aspects of a matter were considered meant many of his judgments were lengthy. In Minister of Foreign Affairs v Benipal [1988] 2 NZLR 222 he delivered extremely long judgments in a case which involved civil liberties and political refugees. Cooke P’s comments on appeal were illuminating:

“These judgments delivered in November and December 1985 … consisted of a meticulous review of the evidence and submissions heard in the High Court and a full explanation of Chilwell J’s reasons for deciding as he did. Unfortunately, as together they extend to the unprecedented length of 489 pages they are presumably for practical purposes not reportable. It is impossible to read them fully without being struck by the single minded concern to do justice that has led to these remarkable judgments.” [at page 227].

Sir Ian Barker says Sir Muir was always prepared to look for something good in everybody and in every situation.

"Criminal defendants were treated with dignity and compassion. In judicial discussions, his was a respected voice. His judgments often took a while to produce - such was the care that he lavished on each one. Cases often took longer to hear before him than they would have taken before others whose style was more peremptory. He would acknowledge that his way of writing judgments sometimes made demands on available sitting time and on his colleagues, but nobody could ever be cross with Muir because he worked so hard on all his trials and judgments. He put many to shame with his diligence.

"All in all, the law has lost a great man. We who knew him well, have lost a dear friend." 

David Williams QC was one of many prominent lawyers to pay tribute to Sir Muir when he retired from the bench. Writing on behalf of members of the New Zealand Bar Association he said Sir Muir had earned admiration for his considerate and courteous style.

“He was at all times, even under barristerial provocation, a model of restraint. No barrister who has ever appeared before him could show a scar that this Judge willingly inflicted,” he wrote in a piece reprinted by the New Zealand Law Journal (July 1991, page 227).

“His reported judgments reflect his deep concern for fairness and justice and an acute awareness of the need to interpret statutes in accordance with contemporary public policy.”

His conclusion was a wonderful tribute to Sir Muir’s career as judge: “In almost 20 years of judicial service Chilwell J has shown how the judicial function can be carried on at once with dignity, with commitment and with courage. The Bar salutes him and wishes him well in his retirement.”

Sir Muir was knighted in 1989. He had earlier been awarded the Queen Elizabeth II Silver Jubilee Medal in 1977 and his career was further honoured in 1990 with award of the New Zealand 1990 Medal.

Following his retirement from the High Court he sat as a Judge of the High Court of the Cook Islands from 1991 to 1994.

Keen on boating, Sir Muir was a member of the Royal New Zealand Yacht Squadron and the Auckland Outboard Boating Club, of which he was patron from 1990 to 2006. He also enjoyed bowls and was a member of the St Heliers Bowling Club.

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