By Sir Ian Barker QC

Some reflections

When I first qualified in the late 1950s, the idea of appearing in the Privy Council – then New Zealand’s highest court – seemed both attractive and daunting to a newly-fledged lawyer with advocacy aspirations. No New Zealand appeal had gone there since before the war and a perusal of pre-war law reports showed that English counsel often led juniors from the “colony” providing the appeal. Kiwi counsel as leaders were fairly rare.

So, it was my luck after only seven years in practice to assess the possibility of taking an appeal to the Privy Council. I appeared for a group of dairy farmers in Ruawai, Northland, whose leader was Jim Jeffs, later of JBL fame. They did not want to be told to send their milk to the local factory but preferred the factory in Dargaville which was bigger and offered a better payout. This was long before the days of the Fonterra behemoth when small dairy companies were to be found all over Northland and Taranaki. Amalgamations were only just starting to happen.

Jeffs v NZ Dairy Board

The NZ Dairy Board, in those heavily-regulated times, had the power to zone dairy farmers, requiring them to supply their milk to a nominated cooperative dairy company. It also lent money to such companies and did so to the Ruawai company. It held a hearing on whether to zone the rebel farmers to the Ruawai factory. The result saw the rebel farmers ordered, against their wishes, to supply the Ruawai company.

The zoning hearing was before a committee of the board and the zoning decision was made by the board on the recommendation of the committee. The full board had not heard the evidence at the hearing. The legislation did not allow for a committee of the board to make a zoning decision. The board members – other than the three who had sat in Ruawai – received the committee’s report when they arrived for the meeting which was to consider the zoning ruling. They did not receive a transcript nor the submissions from the lawyers for the interested parties – only a rather deficient summary from the committee secretary.

For further factual details, see Jeffs v New Zealand Dairy Production and Marketing Board [1967] NZLR 1057 which will also provide a good summary of the arguments before the Privy Council and its “advice”.

Proceedings seeking the issue of the prerogative writ of certiorari to quash the Dairy Board’s decision were issued in the Whangārei registry of the then Supreme Court. This was before the Judicature Amendment Act 1972 which introduced the remedy of judicial review. The application was rejected by Hardie Boys J (the elder) in 1964 ([1965] 1 NZLR 522) as was an appeal to the Court of Appeal in 1965 ([1966] NZLR 73). However, North P had issued a powerful dissenting judgment which formed the basis for my advice to the clients to seek leave to appeal to the Privy Council which was granted by the Court of Appeal. I had to take many trips to Ruawai (and enjoy lots of toheroa soup at the Ruawai Hotel) for meetings with the farmers to gain their approval for the appeal.

There then followed unfamiliar exercises such as preparing and despatching the record and instructing London agents. The firm of Blyth Dutton in London offered experience with New Zealand appeals and their senior clerk, Mr Iverson, was most helpful. He was required to sit through all the appeal hearings and was referred to by their Lordships to counsel as “your client”.

At around the same time, my friend the late Paul Temm had received instructions to consider an appeal to the Privy Council in Frazer v Walker. The would-be appellant had lost in both the courts below. Over a drink, we agreed to combine forces with me leading him in Jeffs and him leading me in Frazer v Walker. It happened that their Lordships found this swapping of senior counsel role odd and queried it at the start of the hearing of the second appeal. We were able to advise their Lordships that we had both been admitted as barristers on the same day in February 1958. The explanation seemed to satisfy the judges.

Off to London

Funding for the appeals was tight. I had my expenses paid but Paul went largely on a pro bono basis. (Pro bono work was often done by leading counsel then but was not proclaimed as a requirement for the grant of silk.) He certainly had the right appeal to take to London for what was to become the leading case wherever the Torrens system of land registration had been instituted. Sir Alfred North, in his memoirs, called Frazer v Walker the most important case he had heard during his time on the New Zealand Court of Appeal because of its ramifications for the doctrine of indefeasibility of title.

We travelled together to London. The British capital in 1966 was not like it is today. Fewer people, cleaner and more efficient. The tube was relatively unpolluted and easier for breathing. No Post-Brexit trauma. No anti-terrorist police.

The Privy Council sat in Downing Street and we had no difficulty in obtaining permission to access the building which housed two hearing chambers and a huge library of Commonwealth cases. One chamber – no longer in use – had existed for the numerous appeals from the Indian sub-continent before independence in 1947. There was a robing room but little else by way of amenities for counsel.

The Judges

The judicial line-up for both appeals was:

Viscount Dilhorne presiding: He had been Harold MacMillan’s Lord Chancellor after Lord Kilmuir had been despatched by MacMillan at “the Night of the Long Knives”. He had been, before his elevation to the Lords, Sir Reginald Manningham-Buller (aka “Bullying-Manner”), a not-so-successful Attorney-General, if one is to believe Wikipedia. He presided because he was a Viscount and the others were merely Law Lords. According to what the late Sir David Beattie told me, Viscount Dilhorne dropped dead whilst fishing for salmon. He was not the sharpest knife in that particular drawer (Lord Wilberforce won that honour by a wide margin) but he did not display any of his alleged bullying manner and presided adequately.

Lord Denning: He was at that time Master of the Rolls (ie, head of the Court of Appeal) but he arranged to sit on these two Kiwi appeals after a visit to the New Zealand Law Conference in Dunedin at Easter 1966. He wore the Auckland Law School tie given to him on the Auckland segment of his visit, and was very cheerful and friendly. Paul and I visited him in his chambers (at his invitation given when we had met him at the law school) and we sat in on an appeal hearing where he seemed to dominate the proceedings in the nicest possible way.

Lord Hodson: The former head – before he became a Law Lord – of the Probate, Divorce and Admiralty Division (Wives, Wills and Wrecks as the English Bar called it). He contributed little to the dialogue with counsel and seemed to “rest his eyes” at times.

Lord Wilberforce was the star performer. Always polite but frighteningly incisive in his questioning. As I have noted elsewhere, his was the sharpest judicial mind that I ever encountered in my whole career.

Sir Garfield Barwick: The Chief Justice of Australia liked to sit on the Privy Council at a time when Australian States still patronised that august tribunal. He had appeared there as counsel often. We felt (rightly as it turned out) that he would be the biggest obstacle to success in Frazer v Walker because the English judges would rely on his knowledge of that colonial institution, the Torrens system. As Paul was starting to develop his argument for the appellant, Sir Garfield’s distinctly up-market Aussie tones rang out across the Queen Anne’s snuff-boxes which adorned the elegant table at which the judges sat, with the comment: “Mr Temm, you are trying to drive a coach and four horses through the Torrens System”. But he was friendly and pleasant throughout the hearing and when he visited Rotorua for the 1969 Law Conference, he went out of his way to invite Paul and me to have a drink with him.

George summonses us

At the appointed hour for the Jeffs appeal, counsel were summoned to the hearing room by George, the Cockney usher, clad in white tie and tails. We had been advised by London agents that a bottle of whisky for George could make life easier for counsel and that advice proved to be correct. He smoothed paths, made us cups of tea and was generally helpful.

After our 1966 forays, appeals to the Privy Council from New Zealand became much more frequent in the years leading up to the creation of the Supreme Court. Some leading counsel enjoyed several different appearances and would have their share of war stories. 

Their Lordships were seated when counsel were called. They did not robe since they were not technically a court but merely a committee advising Her Majesty. Denis Blundell (later Sir Denis, High Commissioner to the UK and Governor-General) appeared for the respondent, the Dairy Board, with an English junior who had a rather superior air. Denis was, as always, charming and friendly as opposing counsel. He got a bit of flak from Lord Wilberforce on the delegation point.

The first half-day was spent with my reading the judgments in the courts below as one did since the presumption was that their Lordships knew little about the appeal when they turned up for the three-day hearing. But their questioning of both sides showed that they had cottoned on to the basis for the appeal pretty swiftly.

After the hearing had ended, George told me that I should not worry about the result. There was a boxed-off area near the entrance to the hearing room which was George’s space from whence he controlled the loud speaking system. Apparently, this system enabled George to overhear their Lordships’ discussions in their retiring room backstage. Their custom was briefly to discuss the appeal they had just heard and, if all agreed, to nominate the author of the judgment (technically, “advice to Her Majesty”).

When back in Auckland three months later, my delight knew no bounds when George’s prediction proved to be correct and the appeal was allowed with costs to us. We had succeeded on the delegation point but not on the “judge in its own cause” point because of the wording of the legislation which probably would not have been passed now in the form it had been – ie, with no concern about conflicts of interest. Some statutes of those times gave statutory boards powers which sometimes bordered on the fascist. Who now remembers the Act governing the Apple and Pear Board, for example?

Frazer v Walker starts at 10:45

On the Monday of the second week in London, Frazer v Walker was unusually programmed to start at 10:30am – instead of the usual Monday start time of 11am – which was designed to allow their Lordships ample time within which to return to London from their country estates. But nobody had told Paul Temm. We had been staying at different places and when he had not arrived by 10:30, I was very worried about what might have happened to him and whether I would have to argue the appeal myself – for which I was ill-prepared. But at 10:45, Paul with his stately gait appeared up the stairs and asserted that he believed we were starting at 11am – which we did after Viscount Dilhorne had queried the reason for the late start.

All six counsel appearing were Auckland graduates. Besides Paul and me, there were Graham Speight and David Baragwanath for the first respondent (Radomsky) and David Beattie QC and Noel Vautier for the second respondent (Walker). We six had sent a greeting to Professor Geoff Davis who was seriously ill in England and who died shortly thereafter .We all remembered him with affection as the long-term Dean of the Auckland Law School.

The hearing was notable for the excellent presentations from senior counsel for all three parties. Lord Wilberforce’s interventions and questioning showed his huge brilliance and complete grasp of what would have been for an English lawyer, some fairly novel issues. Sir Garfield showed preference for the conventional view of the Torrens system which we were trying to alter somewhat.

Sir Alfred North told me (and it is recorded in his privately-circulated memoirs) that his friend, Lord Denning, told him that the judges had had “rather difficult discussions on the matter in which Sir Garfield Barwick was very influential”. Lord Wilberforce appeared during the hearing to be initially attracted to Paul’s argument which would, if accepted, have meant that the appeal would have been allowed. But that was not to be.

Sir Alfred’s final comment in the memoirs was as follows: “The case is far too involved and difficult to examine the arguments in any way. I felt at the time there was room for a different view if Salmond J’s dissenting judgment had found favour with the Board. I imagine that this is where Sir Garfield Barwick stood out firmly in favour of the orthodox view which had existed since the Assets case”. That was a reference to Assets Co Ltd v Mere Roihi [1905] AC 176.

So much academic comment has been written on Frazer v Walker and it has been quoted in many judgments both here and elsewhere. I therefore suggest to those seeking to know more about the legal issues involved in the appeal to read the report of the arguments and judgment in [1967] NZLR 1069.

After our 1966 forays, appeals to the Privy Council from New Zealand became much more frequent in the years leading up to the creation of the Supreme Court. Some leading counsel enjoyed several different appearances and would have their share of war stories. But even after 50-plus years, the memories of my 1966 appearances before what was then our highest court are still fresh and satisfying.

Admitted as a barrister in 1958, less than a decade before his visit to the Privy Council, Sir Ian Barker QC’s legal career has seen him in the roles of solicitor, barrister, Queen’s Counsel, High Court Judge, law academic, arbitrator and mediator.