Lawyer, law teacher, legal writer, law reformer and judge. Sir Grant Hammond’s career saw him excel in several directions in the justice system. His passion for the law and how it could be made more accessible and workable shone through in his judgments which resisted complexity and were expressed with clarity and a focus on providing balance where there was uncertainty.
He died in Auckland on 31 May 2019 aged 75.
Chief Justice Dame Helen Winkelmann says Sir Grant's fellow judges recall him as an admirable colleague, always cheerful and efficient in the conduct of the business of the court. “They remember his concern, which guided his career and shaped his judgments, that the law be in the best possible shape to see justice done.”
“Grant Hammond had an interesting and widely varied career in the law and it gave him a novel outlook compared with many judges,” says former Attorney-General and Law Commission President Sir Geoffrey Palmer QC. “He was extraordinarily well read, innovative, curious and often expressed novel views on the bench. New Zealand needs more judges like that.”
Sir Grant was born in Waipawa on 14 May 1944 and was raised on a dairy farm near Te Awamutu. He attended Te Awamutu College, where he was head boy in 1962. While at college he played representative rugby and cricket and enjoyed performing in the school’s musicals. He was an AFS Exchange Scholar from 1962 to 1963, attending Wethersfield High School in Illinois, United States.
Returning to New Zealand he attended the University of Auckland and studied law. He also began working as a law clerk. Admitted to the Bar in 1967, he graduated with an LLB from Auckland in 1969 and with a MJur in 1970. His dissertation was entitled “Privacy and the Prominent Person”. He became a partner at Wiseman and Hammond in 1967 until 1971 when he moved to Hamilton to a partnership at the firm Tompkins Wake and Co. In Hamilton he was also active in the profession, sitting on several committees of the then Hamilton District Law Society and he was also a member of the New Zealand Law Society’s Legislation Committee from 1973 to 1978,
Legal academia and law reform
It’s clear that while in practice Sir Grant retained a strong academic focus. During his time in Hamilton he wrote several articles for legal journals and he was to remain a prolific legal author over his career. The lure of the academic world won and in 1978 he was off to the United States as a Visiting Fellow at the University of Illinois College of Law. After obtaining a LLM at the University of Illinois in 1979 he moved to Dalhousie University in Canada as Associate Professor of Law and Director of Graduate Studies. Further advancement came in 1982 when he was appointed Professor of Law and Director of the Institute of Law Research and Reform at the University of Alberta. In 1986 he was appointed Alberta Commissioner on the Uniform Law Conference of Canada, an important position in the world of law reform.
His time in Canada ended in 1988 when he returned to New Zealand to become Professor of Commercial Law at the University of Auckland. On 1 February 1990 he became Dean of Law at the University of Auckland. During his deanship the Law School moved to more roomy premises and he was involved in an at-times heated debate on the establishment of a Department of Commercial Law within the School of Commerce. His tenure at Auckland was relatively short. In July 1992 it was announced that 48-year-old Professor Grant Hammond had become the first person appointed directly from an academic position to the bench of the High Court. He was sworn in in November 1992 and began sitting in the High Court in Hamilton.
The judiciary
The transition from academic to the bench went smoothly. A few months after his arrival he delivered what is one of the most entertainingly expressed New Zealand judgments, in Lowe v Auckland City Council [1993] NZHC 238 (12 May 1993). In this Justice Hammond agonised over an appeal from a District Court Judge’s allegedly “manifestly excessive” fine of $100 for failure to register a “handsome German Shepherd called Ben”. The whole of Sir Grant’s brief judgment is worth reading, but here is an excerpt:
“The fateful moment for the hearing of this appeal arrived. The Court Crier and the Registrar duly attended on me in my chambers. In full High Court regalia we processed through several levels of the High Court building at Auckland. Other processions of bewigged and black-robed Judges were likewise criss-crossing the building at 10:00am, sidestepping each other in a manner reminiscent of line-out drills for aged All Blacks. The Court Crier threw open the door of the courtroom and shrieked, ‘Pray silence for His Honour the Queen’s Judge’.”
Appointments to the new Supreme Court saw Sir Grant appointed to the Court of Appeal from 1 January 2004. He was to remain there until 1 December 2010 when he became President of the Law Commission. He did not retire from the Court of Appeal until 2014.
“His judicial colleagues remember his intellect and capacity for work,” says Chief Justice Dame Helen Winkelman.
Sir Grant first sat in the Hamilton High Court, which was one of the “home registries” for the High Court until that common room was closed in 2001.
“Sir Grant had a keen interest in the Waikato. He had worked there as a young lawyer following his graduation from Auckland University with a law degree and a master’s in history. The service he provided to Hamilton was deeply appreciated by the local community and profession,” Dame Helen says.
“Sir Grant transferred to the Wellington common room and was appointed from there to the Court of Appeal. He was appointed to the Court of Appeal along with others, to replace the four most senior judges of that Court who became judges of the Supreme Court when that court was established in 2004. It was a time of stress for the Court of Appeal and Sir Grant was an important influence on the way the Court re-established itself after this upheaval. His former Court of Appeal colleagues remember the willingness with which Sir Grant took on work. They saw in him a determination not to rush to judgment until he had mastered both the facts and the law. They recall him as an admirable colleague, always cheerful, efficient in the conduct of the business of the court, and open minded in his engagement with his colleagues.”
His judicial approach
Dame Helen Winkelmann says Sir Grant’s judgments make good reading.
“He disliked unnecessary complexity in the law and would strive to express principles in concrete and simple terms. Where a colloquial saying or metaphor would assist him in making a point, he wouldn’t hesitate to use it. Where there was uncertainty in the law, he would identify the competing policy considerations and then explicitly address how those considerations should be balanced to settle the law. He drew on his training as a historian in this, often placing the issues in their social and legal historical context. And although he had a passion for the study of law, devouring legal texts at the rate most of us reserve for meals, Sir Grant used that study in the service of writing judgments which clarified the law, contributing to its certainty and accessibility.
“I mention three of his judgments which provide examples of his approach:
“In Attorney General v Taunoa [2006] 2 NZLR 457, [2005] NZCA 312 (CA), in which Sir Grant dissented in part, he cautioned against the direct application of common law measures for damages in connection with a breach of the New Zealand Bill of Rights Act, arguing ‘the private law tail should not be permitted to wag the public law dog’ (at [300], quoting one of his earlier judgments, Attorney-General v Udompun [2005] 3 NZLR 204 (CA) at [206]). He outlined the case for a new approach to remedy where there is a public dimension to the breach of rights. He proposed that compensation should be tailored to the interest protected without applying the common law principles too restrictively, nor putting them aside too lightly.
“In Lab Tests Auckland Ltd v Auckland District Health Board [2009 1 NZLR 776, [2008] NZCA 385, [2009] Sir Grant described judicial review as a beacon and guard against abuses of power. Sir Grant bemoaned that the law stood in ‘something of a fog’ commenting: ‘… lighthouses do not work by themselves. They function effectively only in concert with complete and precise charts. It is a pressing task for the courts to ameliorate the problem of fog in judicial review.’ (at [373]).
“In Lumber Specialties Ltd v Hodgson [2000] 2 NZLR 347 Sir Grant dealt with an application for judicial review based on several grounds, the last of which was unreasonableness. Sir Grant began his discussion of this ground as follows (at [144]): ‘To arrive at a submission based on “unreasonableness” is, almost inevitably, to arrive at the destination of the doomed in judicial review proceedings’.”
Dame Helen says Sir Grant’s interests and attributes perhaps marked him out for a career in law reform.
“But his interest in the people behind the cases that came before him, and concern to see justice done in the individual case, meant that his appointment as President of the Law Commission was felt as a loss by the judiciary, even though he did, from time to time, sit as a judge of the Court of Appeal until 2014,” she says.
Hammond J at work
While on the High Court Sir Grant also presided over the first trial where television cameras were allowed in court. This followed the arson which destroyed the New Empire Hotel in Hamilton in 1995 and killed six people. Sentencing the arsonist, Alan Wayne Lorry, to life imprisonment after he was found guilty of manslaughter, Sir Grant described him as a "walking time bomb".
Former Hamilton lawyer, New Zealand Law Society Executive Director and now High Court Judge, Christine Grice, says Sir Grant was devoted to the law and his work.
"An urgent matter came up very early one Sunday. Counsel were invited to call up to his home and the judge dealt with the matter over the breakfast table," she says. "His light was often burning in chambers in the early hours of the morning - sometimes we wondered if he had been home. He was fascinated with any bit of arcane law - and would gnaw away at it when many would have skated over it - hence, there were quite a few reported decisions by him."
Justice Grice says in the days when it was common for the presiding judge to see the child in family custody matters, Sir Grant would visit the child involved at school or kindergarten: "Most judges at the time had the child in chambers, which was very intimidating for the child".
"Barry Paterson, John Faire, Simon Menzies, Jenny Binns, Gary MacGaskill, Phil Connell, Tom Ingram and me all regularly appeared before Grant. All went on to become judges and Grant claimed it was his gentle guiding influence that led to their appointments."
Former Hamilton Crown Solicitor Quentin Almao did many trials with Sir Grant as presiding judge. He found him to be courteous to Crown and defence alike. He also remembers Sir Grant's "fanatical support" of the local rugby team.
The Law Commission
“I’m pleased that such a distinguished judge and lawyer is set to lead the [Law] Commission,” the responsible Minister, Simon Power, said of his appointment at the end of 2010. “Justice Hammond’s experience will stand the Commission in good stead as it refocuses its priorities on black letter law.”
Retiring Law Commission President Sir Douglas White says that during his five and a half years as President, Sir Grant oversaw the completion of some 18 law reform reports by the Commission on a wide range of important subjects. These including reviews of the Misuse of Drugs Act, the law of Privacy, the Official Information legislation, the Judicature Act 1908, the law of trusts, suicide reporting, the Crown Proceedings Act and national security information in proceedings, the justice response to victims of sexual violence, strangulation, and understanding family violence: the criminal law relating to homicide.
“Through his work at the Law Commission on these reports, Sir Grant made a major contribution to law reform in New Zealand,” Sir Douglas says.
“There is no doubt that the recommendations in these reports and, in several cases, the subsequent enactment of legislation implementing them, reflect the significant influence of Sir Grant on improving the law of this country and will be part of his enduring legacy.
“As Hon Amy Adams, the then Minister of Justice, said on the occasion of Sir Grant’s retirement as President of the Commission in May 2016, he ‘provided the Commission with very able leadership throughout his tenure’.”
Sir Grant also had an important law reform role in his work as chair of the Legislation Advisory Committee, from 2010 until the committee was re-established as the Legislation Design and Advisory Committee in 2014. He noted that while behind the scenes, this was important work: “We’re a committee of a dozen all pretty senior law and civil service people who report to Parliament on all incoming legislation that goes before parliament, and we can also guide ministries on how to prepare legislation. It’s all about improving the quality of legislation, before it gets passed into law.”
An active retirement
On his retirement from the Commission in May 2016 Sir Grant continued to sit as a judge of the Court of Appeal of Samoa until recently. This followed his appointment to that Court in 2010. He also retained a close connection with the University of Waikato, where he held the role of Professor of Law and Judicial Studies from July 2016. During a judicial sabbatical he was also a visiting professor at Cornell University in New York.
An often-published writer, his contributions to legal scholarship include Judicial Recusal: Principles, Process and Problems (Hart Publishing, 2009) and “Judges and Academics in New Zealand” (2013) 25 NZULR 681.
“He was in my experience a man with a fund of the most remarkable legal stories,” Sir Geoffrey Palmer QC says. “I recall his book on judicial disqualification with affection. Grant kept up his interest in scholarship and universities from the bench over the years. He had a lot of energy and was highly productive. He will be missed.”
Over his career Sir Grant received a number of honours for his contribution to law and the justice system. He was the recipient of the prestigious Robert S Campbell Fellow in Law at Magdalen College of Oxford University in 2008, and in 2014 was made one of only two Distinguished Fellows of Victoria University of Wellington. In the 2011 Queen's Birthday Honours List, Sir Grant was made a Knight Companion of the New Zealand Order of Merit for services to the law.
He also received an Honorary Doctorate of Law from the University of Waikato on 22 October 2014. This was the first honorary LLD awarded by the university. “I can say that my career has been a steady upward curve, and I’ve been very fortunate to have experienced so many aspects of the law," he commented at the time.
Sir Grant is survived by his wife Nanette Moreau and their daughters Catherine and Caroline Moreau-Hammond, and by his children Josephine and Christopher Hammond from his first marriage.
“Dad was a much loved father and grandfather,” says his daughter Catherine. “At home, he was just Dad. He loved reading, films and time in the garden. His farming roots were deeply important to him and we often took countryside jaunts. He taught us to be ever curious.”