Sir Ian McKay died in Wellington on 20 February 2014. During his long legal career he was a highly respected judge of the Court of Appeal, renowned as an advocate and a senior partner of one of New Zealand’s largest law firms.
He was born in Waipawa on 7 March 1929 to Neville and Kathleen McKay. His father was a solicitor and also a qualified accountant. He was educated at St Columba’s Convent in Waipawa before winning a scholarship to St Patrick’s College (Silverstream). He completed his schooling at Waipawa District High School before enrolling to study law at Victoria University College in 1946.
While studying he worked for the Public Trust Office in Wellington and then joined a conveyancing firm. He graduated BA and LLB in 1952. He was admitted as a barrister and solicitor in 1952.
After graduating Sir Ian worked his passage by sea to Britain to further his bagpipe studies. A love of the bagpipes was to be an important part of his life.
On his return to New Zealand Sir Ian began what would be a 39-year career at the law firm which began as Swan Davies and is now called Kensington Swan. He became a partner in Swan Davies and McKay in 1953 and became Senior Partner in 1967.
He married Ruth Younger in 1958 and the couple had four sons and two daughters. Lady McKay died in 2010.
While remaining a barrister and solicitor, his impressive advocacy skills were widely recognised. Brian McClelland QC, himself renowned as one of the leaders of the bar, was reported as saying frequently “The best barrister in New Zealand is not a Queen’s Counsel but Ian McKay”. (Law Stories, LexisNexis, 2003, page 59).
Kensington Swan partner Chris Booth says Sir Ian was always regarded as being a leader of the bar, even though he never practised as a barrister sole. “He was known for his clarity of expression in writing or orally,” he says. “One of his major contributions was as chair of the committee appointed by Standards New Zealand to develop and review the standard conditions of contract for building and civil engineering construction, NZS 3910. This is still the most widely used standard form contract and a key feature was Sir Ian’s lead to clear and plain English.”
Mr Booth says Sir Ian’s practice extended across many areas of the law.
“He was one of those people who could take on any case. He took on commercial disputes, contract cases, of absolutely any kind. Sir Ian was regarded as the foremost building and construction lawyer in New Zealand and he did a number of major arbitrations.”
Although he undoubtedly had many opportunities and suggestions to become a barrister sole, Sir Ian remained with Kensington Swan.
“He used to say that he enjoyed the camaraderie provided by our partnership,” says Chris Booth.
Another Kensington Swan partner, John Meads, describes Sir Ian as a tower of strength and “the ultimate senior partner”.
“He was an amazing person to have in our firm, so erudite and learned, with his extraordinary talent. We will all miss him.”
Sir Ian appeared in many high profile cases, including in the Court of Appeal and Privy Council.
He was also a very active participant in the affairs of the legal profession. He was a Council member of the Wellington District Law Society from 1971 to 1977 and President in 1982, and Vice President of the New Zealand Law Society from 1979 to 1982. He served on numerous Law Society committees, including convening the committee which prepared the Law Society’s submissions to the McArthur Commission for the Review of the Companies Act from 1968 to 1973.
A member of the New Zealand Council of Law Reporting from 1974 to 1979, Sir Ian also served on the Law Revision Committee from 1971 to 1986, chaired the Torts and General Law Reform Committee from 1971 to 1983, the Committee on the Law of Defamation from 1975 and the Committee on Law of Evidence from 1982 to 1987.
Sir Ian’s career took a new direction in 1991 when, at the age of 62, he was appointed as a Judge of the Court of Appeal. This was only the second time since the establishment of the permanent Court in 1958 that a direct appointment had been made to the Court.
“The appointment of Mr McKay recognises his outstanding qualities as a lawyer,” Attorney-General Paul East said when announcing the appointment. (LawTalk 350, 10 June 1991, page 1).
Former Court of Appeal President Sir Ivor Richardson says Sir Ian made a major and distinctive contribution to the work of the court.
"The number of cases on which he sat and the 403 judgments which he delivered demonstrate his workload at the court," Sir Ivor said in a Tribute at Sir Ian's funeral.
"He was a prodigious worker with a particular capacity for analysing complex facts and identifying and applying legal principles with a healthy pragmatism. Ian also brought to the court his knowledge of organisations and the commercial world. Barristers tend to deal with situations which have gone sour. But, it is also very useful in judicial work to know how organisations normally tick, how management and boards relate, what they see as issues, and how they are inclined to deal with issues. And the Court certainly benefited from his wide experience."
In his book on the Court of Appeal, legal historian Peter Spiller says that during his time in practice Sir Ian had turned down requests to serve on the Supreme (later High) Court in view of his work and family commitments.
“However, by the early 1990s, his circumstances were such that he was able to accept appointment to the Court of Appeal, and the determined efforts of the Chief Justice helped to secure this.”
Dr Spiller says Sir Ian’s tenure on the Court of Appeal was marked by judgments that were thorough, sound in law, and clearly expressed.
“His brother judges would commonly pay tribute to the way in which McKay J fully set out the background and relevant facts of cases. His experience at the bar gave him a sureness of touch in a wide range of matters including practice and procedure and professional responsibility.”
Summing up Sir Ian’s time on the Court of Appeal, Dr Spiller describes him as a “scrupulous, independent-minded judge of consummate efficiency”. “His wealth of practical legal experience and his insights, particularly in the commercial procedural, and professional spheres, gave considerable support to the pragmatic approach of the court.” (New Zealand Court of Appeal 1958-1996, Brookers Ltd, 2002, pages 204-207).
Sir Ian retired from the Court of Appeal in 1997. He continued to serve the community with appointment as President of the Electoral Commission from 1997 to 2000, and was appointed to head the Commission of Inquiry into the Police INCIS system in 1999. He was President of the Surveillance Panel of the New Zealand Stock Exchange from 1997 to 2003, and also appointed to the Court of Appeal of Samoa.
Sir Ian became a member of the Privy Council on 8 April 1992. He was knighted in the Queen’s Birthday Honours in 1998.
While on the Court of Appeal he was elected as president of the Arbitrator’s Institute of New Zealand from 1994 to 1996. He was a Fellow of the Chartered Institutes of Arbitrators and of AMINZ and was a panel member of the Australian Centre for International Commercial Arbitration and of the Hong Kong International Arbitration Centre.
Outside the law Sir Ian’s Scottish heritage came to the fore. He was active in highland pipe bands and was made a Life Member of the Piping and Dancing Association of New Zealand in 1974.