New Zealand Law Society - The (then) Supreme Court judges

The (then) Supreme Court judges

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By Sir Ian Barker QC

Sir Ian Barker continues his personal observations on some of the key players in the law when he was a new lawyer.

Supreme Court judges of the 1950s and early 60s were few in number and rather remote figures. Certainly, when compared to today’s echelon of about 25 High Court judges and four associate judges in Auckland alone.

In what follows, I include some judges who were in their last years in office when I was a law clerk. I never appeared before them but observed their performances in an era before time costing and quotas of billable time, when employers did not mind law clerks spending time observing trials when they were “up the hill” filing documents. I then revert to judges before whom I appeared in my early years of practice.

The most famous/notorious trial which attracted the greatest law clerk attention in 1953 was Prevost v Prevost and Hutter before Sir Humphrey O’Leary CJ and a jury. In those pre-Family Court days, one could sue the co-respondent (ie, the “other party”) for damages for adultery. This only applied to males who had to be cited as co-respondents. Female “other parties” were called “persons entitled to intervene” and needed neither to be cited nor to take part in the proceedings unless they wished to do so. They could not be sued for damages.

Mr Prevost was a wealthy businessman and Mr Hutter was a well-known racing commentator. The evidence revealed what were, for the time, glitzy, even risqué goings-on amongst members of what was called “a smart cocktail set”, including one man described as “a cocktail lawyer”. Lots to take in and gossip about for legal people!

It was said that the strain of this trial was too much for O’Leary CJ who died not so long afterwards. He was replaced as Chief Justice by Sir Harold Barrowclough, famously described by the late Professor Davis, long-time Dean of the Auckland Law School, as “a good soldier”.

Sir Humphrey O’Leary was apparently a pleasant and congenial man who had been a good advocate and President of the New Zealand Law Society. He was close to the Labour Party which appointed him as Chief Justice over the establishment candidate, Sir Wilfred Sim, who had National Party affiliations.

As an aside: my only experience of Sir Wilfred was when I was in the old Wellington Court library preparing to argue my first major appeal in the Court of Appeal the following day. I had committed the gross breach of Wellington protocol by sitting in Sir Wilfred’s place. I had been unaware of this very Wellington custom of reserving seats for VIP members of the profession without any indication to ignorant Jafas of the pre-emption. Sir Wilfred was not particularly gracious, unlike TP Cleary who was courtesy and understanding personified when I unintentionally pinched his space in the library.

Barrowclough CJ’s appointment was not received kindly by the profession. It was said that Sidney Holland, the then Prime Minister (arguably one of the worst of that category in my lifetime) appointed Barrowclough to reward him for his service as a general during the war. He was not noted as a good advocate nor as a particularly astute lawyer. He was often overturned on appeal but was said to be a good leader of and shop-steward for his judges and a reasonable administrator. I appeared once before him in his last year on the bench as a junior for the plaintiff in a personal injury case. Senior counsel squabbled consistently throughout, and it was all too much for the judge who threatened to leave the bench unless counsel became more reasonable.

The senior judge in Auckland for some years was Sir George Panton Finlay of whom an elderly idiosyncratic steward at the Northern Club was once heard to enquire “Potage, Sir Jarge?” Finlay J was said to have been decidedly user-unfriendly on the bench – particularly to younger or inexperienced counsel. The only time I witnessed this style in those neophyte days was to hear him rebuke a not-so-accomplished counsel for putting up what the judge thought was a spurious defence. He had practised in Te Kuiti in his younger days, specialising in Māori land law.

Theatrical in court

Sir George could be a bit theatrical, as on the occasion when he swore-in Trevor Henry as a judge in 1954. Unlike as in all the very many swearings-in which I have attended (including my own in 1976), the new judge took his oaths of office not from the bench but whilst standing at counsel’s table in counsel’s robes and wig. The court then adjourned and returned for the customary welcoming speeches with the new judge as one of its members. I have often thought that Finlay J got it right and that his procedure was more logical in that the new judge did not assume the judgment seat nor don the judicial bling until he/she had been sworn-in.

Sir Trevor’s appointment was the first time I had encountered the legal rumour-mill which is alive and well – even today when judicial appointments are exceedingly common and not considered worth noting by Auckland’s sole tabloid newspaper (which used to be a journal of record). The mill was and is activated when a lawyer is about to be elevated. My then employer had asked Sir Trevor to act for a client who had been seriously injured in a motor accident and who was suing for damages – as one could in pre-ACC days. Sir Trevor mysteriously declined what was a great brief but told my employer that he couldn’t say why. That intimation was legal code for “I have been appointed a judge”.

Sir Trevor was sent on appointment to preside in Dunedin and was that city’s last resident judge. He used to visit Auckland to sit occasionally. Whenever he did so, there was a marked fall-off in the number of criminal sentence appeals. Henry J knew about the power to increase a sentence on the hearing of an appeal. Post official retirement, he was a temporary judge in Auckland when I was first appointed to the bench in 1976. He was very generous with his advice to a young judge – particularly in criminal matters where his experience was unrivalled. He lived until the age of 105 and was as sharp and as interesting as ever to the end.

Sir Joseph Stanton was kind and avuncular on the bench. He had been Auckland City Solicitor for many years before appointment. Not as sharp legally as Finlay, he was popular with the bar.

One of New Zealand’s greatest judges, Sir Alexander Turner, had been one of three Queen’s Counsel to have been the first appointed in the reign of Queen Elizabeth II in 1952, along with LP Leary and HP Richmond. Sir Alex became President of the Court of Appeal and had been one of the members of what I consider to have been one of the best judicial combinations on that court in my time and since: North P, Turner and McCarthy JJ.

Sharp and agile mind

Turner J had an extremely sharp and agile mind. What distinguished him from a few others of high intelligence was that he had no tickets on himself. His career at the bar had seen him undertake a variety of cases including criminal defence work – such as the famous George Horry case where a murderer was convicted without any evidence of the corpse of the deceased ever being located. He was also academically inclined and his editing and reinvention of Spencer Bower and Turner on Estoppel was one of this country’s best-ever legal works, acclaimed throughout the common law world.

He was the first judge in Auckland to conduct Chambers hearings in the presence of all counsel with matters on the Chambers List. With other judges, counsel would crowd the corridor near the judge’s chambers and be summoned – one case at a time – to face the judge. On any Chambers List there would be a mixture of cases – many routine, but also defended unusual applications under a variety of statutes. Turner J always did his homework and was many jumps ahead of counsel. He dealt with each case in the presence of assembled counsel and those who had not prepared or who had been sent along thoughtlessly by a senior partner without proper instructions to seek an adjournment were often in for a nasty surprise. One always felt educated by the treatment he gave to legal situations which were outside the common experience.

Turner J had the extraordinary knack of articulating in succinct phrases one counsel’s best argument and then articulating the best argument for the opposition. Usually this happened during submissions. The judgment was always concise and clear and rarely appealed – let alone successfully appealed. His knowledge of all aspects of the law was truly encyclopaedic. Whilst fairly demanding of counsel, he was never nasty or humiliating to them.

On the Court of Appeal, his style did not always blend in well with that of Sir Alfred North. They were quite different personalities. North P was the more forceful. He had an instinctive feel for the law whereas Turner J was more academic. But the combination produced good judgments which were enhanced by the more pragmatic approach of Sir Thaddeus McCarthy – the third member of this memorable court.

After its creation as a permanent court in 1958, in one of many instances of Justice Department inadequate judicial housing efforts, the Court of Appeal was located in a shocker of a building in Ballance Street which had once housed the Public Trust Office. Previously, the court had sat in the Wellington Supreme Court building which before its fairly recent renaissance, had many deficiencies. The Court of Appeal building’s subsequent reincarnation in Molesworth Street was obviously an improved facility. There, Sir Thaddeus gave the judicial input into the design and considered that only the President’s Chambers should be provided with an en-suite. The other judges would have to share a lavatory (men only were catered for in those days,)

On his retirement, Sir Alex became Butterworth’s principal editor and recruiter of textbook authors. He masterminded the Fourth New Zealand Edition of Halsbury. It was almost impossible for someone whom he targeted as an author – either of a text or of a Halsbury topic – to refuse his job offer, given Sir Alex’s encyclopaedic knowledge of the law, his fame as a judge and an engaging manner. You instinctively felt flattered that he had chosen you of all people for what was to be an epic contribution to a particular field of law.

Formidable advocate

Sir Alfred North had practised in Taranaki where he built up a solid reputation before being invited to join Earl Kent in Auckland. He became a formidable advocate there. With a crippled leg and an adenoidal and easily imitable voice, he did not suffer fools gladly either at the bar or on the bench. I got to know him in mellower mode in the years following my appointment to the bench because he happened to live down the road from me. He was always keen to hear the latest legal and judicial gossip and would often summon me to partake of a large gin and tonic. Fortunately, I didn’t need to drive to his house. His war stories were always interesting, and his quick perceptive mind stayed with him to the end. He died suddenly in 1981.

I was admitted as a solicitor in 1957 at a time when I needed only to pass papers in International Law and Conflict of Laws to gain my LLB degree. The regime of the times permitted admission as a solicitor without requiring completion of the full degree course. Why those two subjects were considered essential for a barrister but non-essential for a solicitor remains a mystery. I find it ironic that those two subjects, which we students then considered academic and of no practical use, should assume some importance for me in my “third career” when I undertook international arbitrations.

Having passed quite easily these two subjects which I found interesting even in the late 1950s, I was admitted as a barrister in February 1958 by Justice Shorland who was a kindly, able, hard-working and courteous judge who was great to appear before. Sadly, he died suddenly about three years later whilst on sabbatical in France.

His daughter, Anne Gambrill, was one of the first Masters to have been appointed when the office was created in 1987. Although she ran her court in a relaxed way and was a highly successful appointee, as one of the first Masters, Anne had to put up with the Justice Department’s disapproval of their creation. The department had Masters on five-year appointments which was not constitutional for a judicial officer. The anodyne term “Associate Judge” was introduced some years later. She and the late Pat Towle were pioneers in the role and, along with Master James Thomson in Wellington and Master Hansen (later Sir John) in Christchurch, they earned the respect of the bar for the new creature in the judicial menagerie.

Admission 1958-style

There was no mass admission ceremony in 1958 with red robes and Queen’s Counsel being asked to move, etc. About six of us were ushered into the judicial presence, one at a time, along with counsel moving. The whole process was over in a few minutes after the admittee had taken the prescribed oaths and the judge had offered formal congratulations and exchanged pleasantries with counsel moving.

My first appearance in the Supreme Court (apart from obtaining a decree absolute in a divorce case) was before Hutchison J and a jury. Hutchison J was senior puisne, sent from Wellington to “help out” Auckland which was, as ever, needing extra judicial horsepower. He was rather gruff but basically pleasant to appear before – with expressive bushy eyebrows.

Paul Temm (admitted on the same day as me) and I appeared on legal aid for three young tearaways (who would be deemed innocuous today) charged with being rogues and vagabonds in a public place. Paul and I managed to find them a legal out which was reported as R v llich Newson and Tonge [1958] NZLR 670. So not only did we win our first jury trial but our first case made the Law Reports. All good for the ego! The quaintly-worded charge which our clients faced has now been superseded by something like disorderly behaviour. Criminal legal aid was then in the gift of the judge who almost always granted it on the highest of the niggardly scales of remuneration – in preference to having to deal with a defendant in person.

Paul and I appeared together again in the Privy Council in 1966. He led me in Frazer v Walker [1967] 1 AC 569, [1967] NZLR 1069 and I led him in Jeffs v New Zealand Dairy Production and Marketing Board [1967] 1 AC 551, [1967] NZLR 1057. Their Lordships’ concern at this unusual arrangement was assuaged when they were informed that we had been admitted on the same day.

The judges used to take a lunchtime constitutional (weather permitting), not straying too far from base and wearing their black homburg hats, useful for doffing when greeting a lady.

Terence Gresson was appointed to the bench at the age of 42 (the same age at which I had been appointed) in 1956. He was very much of the Christchurch establishment and had a patrician air. Good-humoured and very professional, he ran his court with grace and style, whilst always with the requisite dignity interspersed with humour. I remember one undefended divorce day when Jimmy Dickson, a then elderly and idiosyncratic practitioner, was presenting a petitioner who alleged a verbal separation agreement as the ground of divorce. He blatantly led his client on the vital evidence of the alleged verbal arrangement with her husband – and some judges would have expressed grave annoyance at such disregard of the rules of evidence. TA Gresson J in his cultivated voice, having listened to this then said: “Mr Dickson, as the years advance, it becomes increasingly difficult to refuse you. Decree Nisi.”

The profession was dismayed when Justice Gresson committed suicide in late 1967. l was involved in a case which ran for some time in 1966 before him. Almost a year after he had finished the hearing, he wrote a judgment, signed it, gave it to his Associate for delivery and then died. There was litigation over whether judgment could be delivered after his death. See Westfield Freezing Company Ltd v Steel Construction Company Ltd [1968] NZLR 680.

Fearful to the unprepared

Reginald Hardie Boys J (father of Sir Michael who became a Court of Appeal judge and Governor-General) was a confident and forceful figure on the judicial scene. Not claiming to be a legal scholar, he brought to bear his considerable knowledge of human nature, born of years of practice. He was particularly empathetic to juries in both criminal trials and personal injury litigation. Yet his civil judgments over a wide area showed an appreciation of the relevant law and an ability to deal with complex factual situations. He could be a bit scary if counsel were unprepared.

Richmond J was appointed in 1960, my second year after admission. I had encountered him in what was one of his last instructions in practice. He was acting for a construction company which had gone into receivership or liquidation owing heaps to the usual unhappy cohort of subcontractors. (Nothing much has changed since then. At least in 1960 there was the rather flimsy protection for subbies offered by the liens legislation which was repealed in 1989 and sort of replaced years later by the Construction Contracts Act.)

A creditors’ meeting was held in the former office of the company. Kip Richmond, acting for the liquidator, presided, seated on an apple box. Attending solicitors – most of them young like me because the fee potential was not great – sat wherever they could or else stood around. Kip dealt with all enquiries and articulated potential legal problems with considerable aplomb and knowledge but with great courtesy to all, including the neophyte lawyers.

So, I was well-disposed towards him when his appointment came a few weeks later. There was some criticism then of his perceived lack of experience in criminal law – a comment often made then and now about appointees who had only civil experience in litigation. But Kip proved them wrong and managed many important criminal trials with the same aplomb he had displayed at the Tru-cut Homes Ltd (in liquidation) creditors’ meeting just described. He went on to the Court of Appeal, becoming President.

On the bench he shook his head a lot because of some neurological condition and always asked questions in a rather tentative manner as if seeking the answer from somebody who knew what it should be. But wise counsel were rarely fooled by this approach. He was a very sound and knowledgeable lawyer who usually knew the answers before he asked the questions. The naming of a high-powered set of Chambers in Auckland after him was a great recognition of his standing and ability. As a guest at Auckland Law Society Council dinners for visiting judges at the long-closed Professional Club in Kitchener Street on the odd occasion when the Court of Appeal sat in Auckland, he was a fan (in appropriate moderation) of Jacob’s Creek Shiraz which he always called “Jackson’s Creek”.

Owen Woodhouse was appointed in 1960 from practice in Napier to sit in Auckland. He brought charm and a relaxed approach to a somewhat stuffy culture and was understanding of and helpful to young lawyers. His informality was often visible on undefended divorce day when he lowered the barriers for formal proof in areas where some of his colleagues insisted on strict compliance with the rules of evidence. This characteristic was often to be seen in his dealing with evidence of verbal separation agreements in divorce petitions. He and Sir Graham Speight – each faced with a list of 30 undefended divorce petitions – were said to have had a bet over which one of them would get through the list first. Legend had it that “Woody” won.

On the Court of Appeal, he wrote some judgments which might be categorised as “forward-thinking” or “socially interesting”. He would try to persuade the colleagues with whom he sat to agree with his approach – not always with success. He was good at persuading long-winded counsel with a plethora of appeal grounds to abandon the grounds which had little chance of success, to concentrate on what he considered the arguable grounds. But the colleagues on the bench did not always agree with his assessment of the arguable grounds! He succeeded in abolishing wigs and gowns in the Court of Appeal in 1986 on “an experimental basis”. There were never any reports on the success or otherwise of the “experiment” which was in fact Woody’s way of imposing his views on a somewhat sceptical bench and bar.

His ability to engineer change was best seen in the eponymous report of the Royal Commission which he chaired (nobody these days recalls the names of the other Commissioners) allegedly on reform of workers’ compensation. By stretching some generality in the terms of reference, the report of the Royal Commission recommended abolition of personal injury litigation and the establishment of a scheme to compensate all victims of injury, workplace, motor accident or any other type of injury such as sporting injury. The legal profession was divided but legislation incorporating some, but not all, of the Commission’s recommendations was enacted in 1972 with additions by a different government in 1973 to come into effect on 1 April 1974. This narrative is not the place to discuss the implementation of the report nor the tinkerings by a succession of politicians with its principles and the use by the said politicians of the funds generated by the scheme. The profession adapted well and, on the principle “The Lord giveth, the Lord taketh away”, new horizons for litigators appeared with such statutes as the Matrimonial Property Act and the Commerce and Fair Trading Acts.

Sir Ian Barker QC was admitted as a solicitor in 1957 and has had a long career in the law, as a solicitor, barrister, Queen’s Counsel, High Court Judge, law academic, arbitrator and mediator.

Humphrey Francis O'Leary, his wife and son. 17 October 1932 Ref: PAColl-6301-21. Alexander Turnbull Library, Wellington, New Zealand.

Chief Justice, Sir Harold Barrowclough (left) and Registrar, G R Holder being escorted by Constable W J Firmin to the new Court of Appeal, Ballance Street, Wellington. Evening Post, 5 Feb 1960 Ref: EP/1960/0507-F. Alexander Turnbull Library, Wellington, New Zealand.

Justice Terence Arbuthnot Gresson (1914-1967)

Sir Ian’s recollections of Justice Gresson are indicative of the affection and respect with which he was held by the profession. His death by suicide on 14 November 1967 at midnight was a major shock, but the prevailing attitudes and conventions of the time meant it was not discussed.

Justice Gresson’s son Nicholas was aged 27 at the time of his father’s death. He has revealed that he tried to obtain help for his father, and was criticised for speaking out both before and after the death. Regardless of the family viewpoint, the Chief Justice Sir Richard Wild remained totally supportive of Nicholas throughout.

Nicholas Gresson QSM is a poet and last year he published a fourth collection of poems, The Writing Point (Australian Scholarly Publishing). This includes a poem, “The Hand at Midnight”, which, in his own words “gives honour to my father and his pain – this should be spoken”. With the permission of Nick Gresson and the support of his wife, Auckland barrister Dr Elizabeth Gresson, LawTalk would like to honour Justice Gresson and his son by publishing “The Hand at Midnight”.

The Hand at Midnight

From the lies in a thousand slips she fed him death,
from a thousand loves she turned his sight,
and that last night she sank him
in the quicksand grip of a family mansion –
so far from home,
in solitary confinement she left him
to spread his last breath by law
and cast his final judgement.
And round about his mates are stepping past
drunk with respect, damning his retreat,
he alone selecting himself for death.
‘And should it be so?’
Passing borders of a life lost in clotted hope
by a driveway, by a river, by a bridge, by a sunken garden,
where athletic breaths and calls are lost in the wind,
the loss of a thousand loves set in a thousand storms.
‘Come my father, so swiftly.’
This is the way she got in
and this was the mien she knew…
alone she could burn and set the hand to midnight
satisfied to swoon in her mocking moonbeams,
assured her perfection and completion
breaking the pace of his being, the tide of his love.
Perhaps autumn leaves, their fires to fuel,
or Ireland’s lore could hold in faith a light,
could charm beyond a church bell’s harvest…
but the door had been shut fast.
Only the cat was welcome to the inside hearth
all else estranged
nothing left but the weave of her thousand snares.
Night scratches time in a soft soul
touches tangled flowers and rhyme
his eye to the last riverbank, caught.
‘Can it be, my father?
Will it be…?’
Alive the profusion of sweet peas by the wash-house
edging the drying-green of a fading Gartmore,
passing footprints in the grass, the hollow bark of dogs.
A long driveway reaching to another time…
autumn leaves casting a last cushion for his head.
Countless trees cry on a nor’west wind.

Nicholas Lyon Gresson 22 February 2017

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