New Zealand Law Society - Judge John Duncan Bathgate, 1934 – 1997

Judge John Duncan Bathgate, 1934 – 1997

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Judge John Bathgate died suddenly in June 1997 while taking an early morning walk along the beach at Mahanga. He had been in ill health for some years and, indeed, had coped cheerfully and determinedly with indifferent health for much of his life.

John Bathgate was born at Hastings on 19 July 1934. His father was a well known Hastings medical practitioner whose autobiographical book Doctor in the Sticks is a fascinating read. Educated at New Plymouth Boys’ High School, he took his law degree at Victoria University in 1957. He worked as a law clerk and young barrister and solicitor in Wellington, Napier, Auckland and Hamilton, before joining Tompkins and Wake, Hamilton (then known as Tompkins, Wake, Paterson and Bathgate) as a common law partner in 1963 and became a highly skilled and experience advocate in the Hamilton area.

In late 1981 he came to Wellington as a District Court Judge with a preference for civil work. In mid-1982 he joined me as a Taxation Review Authority and also became a Planning Tribunal chairperson (now the Environment Court) although for the next 9 years he concentrated in tax court work. It was a singular privilege and pleasure to have him as a close judicial colleague.

In 1986 he spent 6 months in Western Samoa as a High Court Judge. He sat more than once in the Chatham Islands. He returned to the general jurisdiction of the District Court at Wellington in 1992 and, in particular, handled a lengthy and complex fishing prosecution case at Nelson. Later that year he moved to Napier with a criminal jury warrant. However, due to his ill health, he retired from the District Court in early 1994.

In 1982 Taxation Review Authority work was a growth industry so that Judge Bathgate was deployed (from the Wellington District Court) to assist hearing tax cases throughout New Zealand. He was admirably suited to the demands of that jurisdiction because he had been a very skilled and experienced barrister with a wide range of civil and criminal work. He was acute at assessing credibility of witnesses and at expressing complex facts and relevant legal principles in a coherent and well reasoned manner. He was very conscientious and industrious.

Taxation cases involve the application of a wide range of general law, for example the law relating to contract, trusts, corporate and commercial, banking, property, securities, or whatever and in many combinations, and statutory interpretation. His Honour was a deep thinker with a strong mind and an independent spirit. He was highly principled both in terms of law and in terms of his own integrity. He did not hesitate to challenge established Inland Revenue Department practices and previous case authorities at any level. A browse through the sets of tax reports shows that he contributed to tax cases and the development of tax law on all manner of topics and involving many areas of the law. Perhaps, some day that will be a research topic for an honours law student.

As long ago as in 1983, in Grieve v CIR (1983) 6 TRNZ 461 (CA) the Court of Appeal developed important new criteria for recognising the existence of a business. At page 469 of his judgment in that case Richardson J (as he then was) refers to an “illuminating discussion by Judge Bathgate of all the authorities” in Case 29 (1983) 6 TRNZ 203 where Judge Bathgate had challenged the previous perception of the law as to the existence of a business.

Judge Bathgate’s tax decisions have frequently been referred to in the higher courts and that trend continues. Of course, in many tax cases heard by the Taxation Review Authority, previous statements of Judge Bathgate are relied on. His written decisions are comprehensive, lucid and decisive. Most of His Honour’s tax decisions have been published in the two sets of tax reports operated respectively by Commerce Clearing House and Butterworths. His tax decisions are relied on in tax textbooks and seminars. Indeed, I note that at least one of his tax decisions dealing with the distinction between tax avoidance and tax mitigation, Case M25 (1990) 12 NZTC 2,155, is referred to in the report of the Winebox Inquiry of August 1997.

His Honour also dealt with many cases in the general civil jurisdictions of the district courts and for the two years prior to retirement was an outstanding criminal law judge.

Judge Bathgate enjoyed the outdoors and was a keen and experienced tramper. He was a keen gardener. He was a dedicated jogger and ran well in Fletcher marathons at Rotorua and Hamilton in the 1970s. He enjoyed a good laugh and the company of others. He was an intensely loyal person with a strong sense of matters spiritual. He always had a genuine concern for those in trouble and less fortunate. He displayed this concern by active and caring assistance. He was constantly helping people in trouble or distress. Upon his retirement His Honour gave a great deal of time to the Flaxmere Community Law Centre and to the Hastings Children and Young Person Panel. Hundreds of ordinary people (young and old) received his wise and skilled advice on a complimentary basis.

I treasured my association with Judge John Bathgate. He was a caring, considerate and loyal friend. He enjoyed humour and had a ready wit. His high intelligence made for easy communication with him. He helped mould the Taxation Review Authority from an isolated specialist tribunal into a respected tax court dealing with taxpayers all over New Zealand.

There are many citizens of New Zealand who are grateful that the high ability of Judge John Bathgate was applied to their particular case.

In his private life, His Honour was a dedicated family person and in his wife, Sandra, he had a gracious and charming partner of similar high integrity and concern for others. They restored an elegant home in Karori, Wellington, where they were most generous hosts. He is survived by Sandra and four children, a daughter-in-law and two grandchildren. He leaves many friends and good memories as a wise and kind judge of his fellow human beings.

By Judge Paul Barber 

This obituary was published in LawTalk 485, 15 September 1997, page 3.

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