Surrounded by forest with views over the Hauraki Gulf, Pupuke Golf Club on Auckland’s North Shore describes itself as a great escape from the hustle and bustle of the city. Like most golf clubs it has lawyers among its members, but litigation will be far from their minds as they line up their putts. Not so over 80 years ago, when a battle over the rights of women to play reached the Supreme Court.
The club was founded in 1914 and today’s pleasant but often precipitous course was hacked out of bush and straggly grassland through thousands of hours of voluntary labour. It flourished, and by 1932 it had hundreds of men and women members. In an age of dances it was renowned for its annual ball. The fifth such event on 25 June 1932 at the Pirate Ship in Milford was organised by a ladies’ committee. A full report in the New Zealand Herald said the Pirate Ship Orchestra played “enlivening music” and supper was served on the upper deck, where the long tables were decorated with floating bowls of violets and Iceland poppies.
One month later the harmonious spirit in the club had vanished. Four women members sought a Supreme Court injunction to restrain the committee from preventing women from playing before three o’clock on Saturdays.
Like all golf clubs, Pupuke was incorporated with a set of rules. These established different classes of members, such as junior members, country members, non-playing members and full playing members. There was no distinction between the rights of male (“gentleman”) and female (“lady”) full playing members.
The dispute arose when more women began to play on Saturdays, instead of during the week. Male members complained to the club’s committee which decided to take action. It refused a request by some of the women for a general meeting of the club to consider the matter and instead passed a by-law.
The by-law
The by-law read: “Saturday morning play by lady members, other than week-end members, is absolutely prohibited. The course is, however, open to lady members on Saturday afternoons, but only on condition that their round must not start till after 3pm and until all gentlemen players have commenced their matches, and that right of way must be given to the men at all times.”
Breach of the by-law was to be punished by a fine of £2 and exclusion of offenders from club rights and privileges until it was paid. Four defiant women – Alma O’Neill, Grace MacDonald, Winifred (Olive) Stevens and Mabel Stevens – refused to be cowed and turned up on a Saturday morning to play. They were duly fined and suspended until payment. In 1932 New Zealand was well into the Great Depression, and £2 would have purchased $230 in 2019.
The women engaged Howard Richmond (1878-1974) (appointed King’s Counsel in February 1952 and father of Sir Clifford Richmond) of the firm Buddle, Richmond and Buddle. Representing the golf club were Alexander Johnstone (1877-1956) (later Sir Alexander Johnstone KC) and a Mr McKay of the firm Stanton, Johnstone and Spence. Johnstone was widely regarded as Auckland’s leading barrister. Three years earlier he had been offered the Chief Justiceship. Overcome by severe doubts he had discussed matters with the puisne judges (who urged him to accept), sent a letter of acceptance, and then (after a sleepless night) sent a telegram cancelling his acceptance (Portrait of a Profession, page 97).
Presiding was Justice Alexander Lawrence Herdman (1869-1953). He had practised law in Naseby for eight years before moving to Wellington and entering Parliament. His career flourished and he became Attorney-General and Minister of Justice in 1912.
The Attorney-General is ultimately responsible for judicial appointment, and Attorney-General Herdman had created an uproar in 1918 when, on the retirement of Justice Denniston, he appointed himself to the Supreme Court bench. There were furious public meetings around the country and fervent motions in opposition, but to no avail. Following his self-appointment Herdman J resigned as an MP on 4 February 1918 and began a judicial career that ended with his retirement in 1935 (including a brief tenure as Acting Chief Justice in 1929).
By most accounts Herdman J (knighted in 1929) was an “adequate rather than distinguished” judge. He was a prominent Mason and regarded as authoritarian in the courtroom. It is not known if he was a golfer.
The proceedings
The application for injunction was heard in the Supreme Court in Auckland on 22 August 1932. The applicants argued that the committee had no power to make the by-law, which effectively cut down privileges conferred by the rules. Alteration of the rules could be effectively done only by the members in general meeting.
The applicants had done everything possible to resolve matters, said their counsel, including offering to suspend play for three weeks and to bring it to arbitration. They had been subjected to a great deal of annoyance, statements having made that they were entirely selfish “and ploughed up the greens,” Richmond told the court. The real reason for the by-law was to enable the men to have the course to themselves. “The whole object is to ensure the links are perfect for the men players; that there shall not be a blade of grass trampled on before they commence play,” he said.
The club argued that the sole question was whether the rule giving the committee power to make by-laws was wide enough in its terms. “A power to regulate and control involves a necessary restriction of liberty”. The by-law was made to preserve the conditions of the greens and to allow male members to conduct their competitions without congestion and interference. “A perfect army of these women turn up in the morning and ruin the game for the men in the afternoon. They are not deterred by any regard for rules of sportsmanship or consideration for other members,” said Johnstone.
In response to a question from the judge, Johnstone said the women paid less for their subscription and the by-law was not enforced when first made. However, women had played in such numbers on Saturday mornings as to interfere with the preparation of the greens and it had become necessary to enforce the by-law.
The decision
Ten days later, on 1 September, Herdman J delivered his decision (O’Neill v Pupuke Golf Club Inc [1932] NZLR 1012). The injunction was granted. In making the contested by-law the committee had acted beyond the powers conferred upon it by the rules of the club, he held. The by-law was therefore invalid.
Herdman J noted that the affidavit evidence was so conflicting that it was impossible for him to decide whether it was in the interests of the club as a whole that the prohibition created by the by-law should exist. The club’s rules did not go the length of enabling the committee to make a by-law which benefitted one section of members only, which restricted the playing rights of another section “and which authorises the committee, if a breach of the by-law be committed and the authority of the committee is defied, to take some action against an offending member which involves disqualification.”
The committee had discriminated between men and women players and had deprived the women of an advantage they possessed under the club rules when they joined the club.
“It think it is plain that the rule cannot have been devised for the protection of the grounds in the interests of all players, for … men and boys may, if they like, use the links on Saturday mornings. The committee must have had some other object in view, and that object appears to have been to give men players special facilities on Saturdays.”
Herdman J said the club, in general meeting, might lawfully make rules which benefit one section of the members only, but it was difficult to believe that a committee, by means of by-laws which usually related to matters of minor importance, could seriously interfere with the rights conferred upon a member by rules in existence when “he” joined the club and paid “his” subscription.
The sting in the tail
Victory was short-lived. A few days later the Auckland Star reported that a special general meeting of the club had been convened for 13 September 1932 “when proposals to add to the rules of the club will be submitted to members”.
The proposed amendments to the rules included empowering the committee to close the course for play on such days or parts of days as it thought necessary and to regulate times “at which particular classes, or grade, or sex of members shall play”.
Another proposed amendment was that “at any general meeting each lady member shall have one vote and each gentleman player two votes”.
And, even more punitively, two-thirds of present committee members (effectively eliminating the women members) could resolve to refuse to accept “without giving reasons therefor” the annual subscription tendered by any member.
Finally, “no action or legal proceeding whatever … shall be taken or instituted against the club committee or an official, notwithstanding any irregularity in the committee’s action or procedure.”
Commenting in the New Zealand Herald lawyer and club stalwart DRC Mowbray admitted that “the proposed new rules were something quite foreign to the rules of golf clubs generally”.
Resolution
The meeting was attended by about 150 members, men and women being present in about equal proportions, the New Zealand Herald reported. All proposed rules were adopted, except the one allowing the committee to refuse to accept an annual subscription.
“I cannot emphasise too strongly that the amendments to the rules of the club which are now proposed are not brought forward in any spirit of vindictiveness as a result of the recent regrettable Supreme Court case,” club president JA Howie said.
The meeting, however, resolved the Saturday play issue amicably. The press was excluded, but the New Zealand Herald understood that a proposal to transfer the by-law into the club’s constitution was abandoned at the outset. It appears this was because the large number of women present may have successfully called for a vote of no confidence in the committee.
“In respect to the contentious question of the hours during which women may play the committee has now been given power to frame by-laws to suit the convenience of the majority of players of the club,” it said.
“Mr Howie pointed out that the proposed rule concerning players’ hours would certainly give the committee wide powers, but it could be trusted to do the fair thing in the interests of all the members.”
The women involved remained (no longer suspended) members. Indeed, just days after the general meeting, Olive Stevens beat Mabel Stevens in the final of the Ladies’ Senior Championship. Bad feelings must have lingered, as – after spending part of February 1933 in Port Albert “for the opening of the godwit shooting season [!]” – Alma O’Neill and also Mabel Stevens were reported as playing at the North Shore Golf Club (which had opened on 13 May 1931).
Moving forward
Time has passed and the case is forgotten. In 2014 the club’s centenary publication One Hundred Years of Golf made just one oblique reference. In a paragraph headed “Another one about the Ladies” it noted “Rumour has it that during the early Thirties there was a bit of a debate about Lady Members. So much so that a group left Pupuke and joined together to help establish the North Shore Golf Club”.
The difference between men and women still applied in the 1960s with women paying lower subscriptions, but “only entitled to half a vote at the AGMs,” the centenary history states. This changed in the mid-1990s when subscriptions were equalised and the club structure reformed. Under the 2011 rules “Full Playing Members” have use of the full privileges of the club regardless of their gender.
New Zealand of course now has legislation which prohibits overt discrimination on a gender basis. In his entertaining article “Golf and the Law: More than errant golf balls” Otago Law Review (1998) Vol 9 No 2, 373-398, Craig Brown says exclusion of and restrictions on women have long been a part of private golf clubs. On the other side of the world from Pupuke, the “home” of golf was not exempt: “In early days the Royal and Ancient at St Andrews confined women to their own course, a large putting green thought appropriate since women were not physically suited to the rigours of the full game” (at 390). As the women of Pupuke showed, change can come through challenging discrimination.