New Zealand Law Society - More 20th century judges

More 20th century judges

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By Sir Ian Barker QC

Sir Ian Barker QC in 1993

Following on from his personal reflections on members of the judiciary in his early days in the law (“The (then) Supreme Court judges”, LawTalk 935, December 2019, pages 69-75), Sir Ian recalls some of the judicial officers from his later days in practice and on the bench.

Sir Alec Haslam was a Wellington judge who rarely, if ever, ventured to Auckland. My experiences with him were confined to New Plymouth, from which city I had been favoured with a few instructions. Taranaki lawyers were great to work with. He liked to take the spring sitting in New Plymouth because he was thus able to visit the spectacular rhododendron display which occurs annually about that time.

I had briefs for one such spring session and was somewhat apprehensive about appearing before Haslam J, since I heard he was a stickler for appearances and had been known for telling counsel he could not “hear” them if they were wearing brown shoes or sporting an unsuitably loud suit. But what the local lawyers told me was correct. He was sweetness and light in New Plymouth in the spring. In the two cases where I was due to appear, opposing counsel and I were invited to the judge’s chambers where polite and friendly suggestions were made about settlement – without, of course, any indication of a firm judicial view. These suggestions usually bore fruit. He was said by my friends at the bar in Wellington to be sometimes difficult to appear before and to have been disappointed not to have been appointed to the Court of Appeal.

Alec Haslam (L) with W.J Kemp and J.D McGrath, 1975

The leaky centre for justice

New Plymouth was also the venue for a 1960s appearance before Sir George McGregor on a two-day fixture about a boat-building contract. (Civil cases didn’t take so long in the days before pre-trial conferences, written briefs, filed opening submissions and the like). This was in the old, old courthouse which had served for decades as the leaky centre for justice in the province until the advent of the Ministry of Works mark 1 model, replicated at several provincial centres. All of these Palais de Justice have now undergone additions, alterations, refurbishment, some more than once. I lost the case and, looking back, I must resort to the standard advocate’s excuse – “my main witness did not come up to brief”. Sir George had been my grandfather’s lawyer in Palmerston North until Grandfather Humphrys died. His more demanding role had been that of Manawatu Crown Solicitor.

Sir George was pleasant to appear before and a sound lawyer. He could be fairly direct but never unreasonable. His bushy eyebrows would twitch a bit if he disagreed with a submission. He had the awful task of imposing the death sentence in Greymouth in 1953 – shortly after he had been appointed – on the man who had shot the booking clerk at the Reefton station and then ran out onto the path of an oncoming train which stopped before it hit him. New Zealand went through an unpleasant phase in the 1950s when the Sidney Holland government reintroduced capital punishment, which was abolished for murder with the Crimes Act 1961, thanks to the efforts of one of our greatest law reformers, Ralph Hanan.

Before the Privy Council

I also remember McGregor J for having been one of the majority in the Court of Appeal who found against me in Jeffs v New Zealand Dairy Production and Marketing Board [1966] NZLR 73 (CA) in 1965. The practice in the Privy Council in those days was for counsel for the appellant (in this case, me) to have to read out word-for-word all the judgments in the courts below; including McGregor J’s. It was said that their Lordships didn’t know what the appeal was about until this reading occurred! Naturally, I read the dissenting judgment of North P (which was in my favour) with great fervour. Fortunately for my clients, Lord Wilberforce, who was probably the brightest judge I ever appeared before, cottoned on to the principal issue fairly quickly. His questioning of counsel, whilst always polite and friendly, showed an exceptional intellect and an unsurpassed grasp of the issues.

McGregor J’s late daughter, Margaret Vennell, was a well-regarded academic at the Auckland Law School who pioneered in New Zealand the study of air and space law.

Sir Ian MacArthur

I never appeared before Sir Ian MacArthur who was appointed as a Christchurch judge to the very old Christchurch Supreme Court building – long since demolished. No trendy names like Justice Precinct in those days! My appearances as counsel in the South Island were confined to Christchurch and Invercargill, although I managed over the course of 21 years on the bench to have sat in every place where the High Court had sittings.

My Christchurch appearances as counsel were before Justice Nigel Wilson who was the only judge sitting in Christchurch regularly at the time because MacArthur J was busy revising the companies’ legislation in a little house in the grounds of the old courthouse. More about Wilson J later.

MacArthur J was known (hearsay so far as I was concerned) as a courteous judge and a good lawyer, but not the speediest occupant of the bench. Very sadly, he died suddenly at the church where his daughter was being married.

Honours for the judiciary

He was knighted under what I suspect to have been the then policy that High (then Supreme) Court puisne judges would receive a knighthood (damehoods were not contemplated for judges in those days) on completion of 15 years’ service or on retirement. I do not know, but speculate, that this rather generous provision was offered by the Kirk government because it had altered the Order of Precedence to place ordinary members of Parliament ahead of Supreme Court judges. Sir Richard Wild, as Chief Justice, saw this alteration as a slight on the judiciary and a lack of recognition by the government of the judges’ constitutional position. The latest version of the Order of Precedence, dated 15 September 2016, still has judges – except the Chief Justice – listed in the official pecking-order behind MPs and ambassadors. The issue seems less important now than it did in the 1970s.

Government policy on royal honours for judges has fluctuated over the years about which I can speak. But, speaking outside of that bygone era, I am sorry to observe that a number of recently-retired judges who have given excellent service, seem not to have been honoured at all in the Queen’s Birthday or New Year’s Honours lists. I imagine that the increase in judicial numbers plus the addition of another and higher layer of judicial officers with the creation of the Supreme Court, have made former protocols redundant and the honouring of all judges on retirement impracticable politically.

Which brings me to Sir Richard Wild. At the time of his appointment as Chief Justice in 1966 he was Solicitor-General, having previously been a partner in Bell Gully. His selection came as no surprise to the profession. Rumour had it that the only other candidate was Denis Blundell, later the Governor-General who signed my QC and Judge warrants. I now mention my first encounter with Sir Richard, other than appearances in court.

The path to silk

Sir Richard Wild

Some Auckland judges had suggested to me in 1972 that I should consider applying for silk. In those days, there were no forms to fill in wherein one had to spell out one’s career and say why, in Muhammed Ali style, one should be appointed. No appointment “round”; no $500 fee; no referees; no requirement of community service, although almost all appointees in those days did pro bono work without publicity. Just a one-on-one interview with the CJ, expected to be a bit scary. He turned out to be pleasant and gave me his approval and told me to contact the Attorney-General – then Martyn Finlay whom I had juniored in a murder trial. Martyn and the then Solicitor-General, Richard Savage, were most helpful and I duly became a silk in March 1973 with precedence after my good friend, the late Maurice O’Brien QC who had been appointed two years previously. No multiple appointments in those days.

Sir Richard was a rather awe-inspiring figure to those at the bar who didn’t know him. That category included most Auckland lawyers. Sir Richard had a habit of referring to “The Republic of Auckland” but that jocular reference did not diminish his performance as one of a team of Wellington heavies from the New Zealand Law Society’s then ruling class (before his appointment as CJ), when he addressed, and won over, a majority of the sceptical members of the Auckland profession at a crowded meeting in 1961. The Wellington delegation sought approval from the largest district law society for the construction of a building in Wellington to house the NZLS and a levy on every lawyer to pay for it. Earthquake safety problems meant the Law Society had to leave the building at 26 Waring Taylor Street in mid-2019, never to return.

I become a Judge

Sir Richard was Chief Justice when I was appointed to the then Supreme Court in March 1976. At the time of being telephoned on a Saturday in February 1976 with the offer of appointment from the newly-elected Muldoon Government’s Attorney-General, Peter Wilkinson, I was in the middle of what turned out to be my last major case at the bar, Tawharanui Farm Ltd v Auckland Regional Authority [1976] 2 NZLR 230, before Wild CJ and a specialist valuer in the Administrative Division (then in existence). I was sworn-in on Easter Thursday by Wild CJ and started sitting after the Easter break. My first case was not a criminal trial (as it had been for many new judges) but a sort of building dispute. More about who was liable for what rather than a trawl through schedules of quantities and other delights of that form of litigation.

In Wild CJ’s reign, if one refused appointment to the Supreme Court bench, the offer was quite often not repeated. Moreover, the offer was for me to sit in Auckland where my family and I wanted to remain. Other recent appointees had been moved south with a vague promise of return to Auckland sometime. Hence my decision to become a ”boy judge” at age 42 – a decision I have not regretted.

15 April 1976 and Justice Barker takes his oath of office in the Supreme Court at Auckland. From left, Justice Perry, Sir Richard Wild CJ, Justice Coates (partly obscured), the new Justice Barker, Justice Moller and Justice Speight.

Led by example

Sir Richard had a strong personality and was a forceful and effective leader of the judiciary. He micro-managed the business of the court and expected his judges to work hard. He led by example as could be discerned, for instance, on my receiving a call from him from a circuit town in the South Island to the lovely old Hamilton courthouse (now apparently and inexplicably abandoned), enquiring how many appeals I had heard that day and how many had yet to be heard. In those days, Hamilton could always be relied upon to provide lots of appeals. One often drove back to Auckland, exhausted, with a bag full of reserves at 5pm on a Friday. Another judge told me, a few months after my appointment, that I had passed muster with Sir Richard by coping with the grab bag of diffuse files which greeted one in the Auckland circuit towns of the day. I found him very reasonable and approachable, although someone as new to the judiciary as I could not help experiencing a headmaster image of him.

His successor created the position of Executive Judge which devolved administration of judicial work locally instead of being under the central control of the CJ. This was an excellent idea which worked well after a few inaugural hiccups. Wild CJ instituted a week’s “spring leave” for judges and generally improved their conditions of service.

During Sir Richard’s term as CJ, sittings of the court were instituted in Whangārei (which had had a registry for many years) which led to petty inefficiency since cases being heard in Auckland had to be filed in Whangārei. It was said, facetiously, that files got lost in transit whilst coming over the Brynderwyns.

Rotorua and Tauranga

Sittings were also inaugurated in Rotorua despite the Auckland District Law Society’s research that Tauranga was more worthy of the honour on demographic grounds. Tauranga was still within the Auckland Law Society’s diocese at the time because it was still within the Northern Judicial District with all its litigation required to be held in Auckland. Judicial Districts were abolished as a belated recognition of the fact that Hamilton and Rotorua were closer to Tauranga than Auckland.

The then government’s decision in 1973 to opt for Rotorua instead of Tauranga for Supreme Court sittings may have been pragmatic. The old courthouse had been burnt down in Rotorua. The Rotorua court – then and now – generates a lot of High Court work – especially criminal trials and appeals. Tauranga has lived up to the Auckland District Law Society’s predictions of the 1970s with its ever-increasing population. It achieved High Court registry status some years before High Court judge-alone sittings occurred there. I am told that planning for its existing and remodelled courthouse extended only to District Court jury trials. A rather odd situation for our fifth largest city, if this be so. As I complete this article, the news has shown that Tauranga is to get a new courthouse in a few years’ time. One said to be not so “intimidating”, whatever that may mean.

Sir Richard was committed to maintaining standards of courtroom etiquette, administrative efficiency and respect for the judicial office. He encouraged collegiality amongst the judges. He maintained a punishing workload – never sparing himself. He died in 1978 after ill health had forced his retirement. His relationship with various Presidents of the Court of Appeal was not always smooth. See Professor Peter Spiller’s book on the history of the Court of Appeal for details (The New Zealand Court of Appeal (1958-96), A History, 2002, Brookers).

Working through the pain barrier

Justice Nigel Wilson

Nigel Wilson was a most courteous gentleman who suffered from a very painful hip which retarded his mobility and required him to use a walking stick. He had gone to the independent bar in Auckland in the 1950s after being in the small to medium-sized solicitors’ firm of Gittos, Uren, Wilson, Greig and Bourke. A courageous move in those days, since there were very few barristers sole. His chambers were a single room in the unpretentious building of Victoria Insurance in Shortland Street. Nigel’s practice was more focused on equity and probate law. Although he was granted silk in 1958, he did not appear to have the comprehensive and lucrative practice that most of today’s silks enjoy. So, when he was appointed to the Supreme Court in 1962, it was said (I don’t know how accurately) that he might benefit from a slight increase in earnings.

Nigel was despatched to Christchurch as a resident judge and he soon displayed a propensity for speedy decisions and oral judgments. Consequently, although appealed against quite often, he got through a huge amount of work and displayed an acquaintance with many branches of the law. All this work was accomplished when he was frequently in pain. Personal injury insurance lawyers often settled their cases before him, not because he was other than impartial, but because it was thought that he would understand a plaintiff’s evidence of pain and suffering better than most.

But he never let his affliction interfere with dispensing justice. Conditions in the antediluvian Christchurch courthouse of the 1960s were far from ideal. Nigel’s Chambers were upstairs (no lift, so how he coped with the stairs is hard to imagine). I appeared before him in about 1965 in the smallish upstairs courtroom and he came on to the bench in obvious pain: but that didn’t stop him from being charming to counsel and from giving an oral judgment which was eminently appropriate.

Alone in the South Island

There were times when Wilson J was the only judge for all the Supreme Court centres in the South Island (apart from Nelson and Blenheim which were served from Wellington). MacArthur J was doing his companies thing and Henry J (the last judge appointed to reside in Dunedin) was either on sabbatical leave or had by then transferred from Dunedin back to Auckland. Wilson J traversed his territory tirelessly. He transferred back to Auckland for his last years on the bench and retired around 1976.

Justice Wilson takes his leave of the bench at a special sitting of the Supreme Court in Christchurch on 19 November 1976 to mark his retirement. He wore the same wig and gown when first appointed to the bench, but had discarded them because of their condition. The wig previously belonged to both Justice Callan and Sir Alexander Turner.

After his retirement, Nigel received no royal honour, although a knighthood in those days would have been customary for a Supreme Court retiree with Nigel’s length of service. A highly principled man, he could be outspoken and sometimes adopted causes which were not universally popular. One that I recall concerned a proposal to transport the elegant wooden St Mary’s Cathedral church from one side of Parnell Road, Auckland to the other so that the old building would be alongside the new, but then incomplete, Holy Trinity Cathedral. I forget the detail after almost 50 years, but Nigel led the charge against the relocation of St Mary’s but was unsuccessful in his opposition. It was said that he was denied any recognition by way of an honour because he had been publicly outspoken (after his retirement) about something favoured by the then Prime Minister, Robert Muldoon. I do not know whether that theory is correct but many felt that Nigel had been unfairly treated and that his efforts on the bench should have been recognised.

The former judge who appeared as counsel

Nigel received none of the appointments now often given to retired judges, such as chairing enquiries of various kinds. Nor was any trend for such retirees to become ADR practitioners discernible in those times. Bear in mind that this was before the reform of the arbitration legislation and before anyone had heard of mediation as the “go-to” healing balm for most litigation. So he not only took out a practising certificate, but he actually made a few appearances as a QC after he had retired from the bench. To my embarrassment (not outwardly expressed) one was before me. I can still recall sitting in the historic Auckland No.1 Court, before its refurbishment, to see Nigel with his stick coming through counsel’s door and announcing that he was appearing for a party in what was a fairly standard Family Protection Act claim in a not-so-large estate. I forget the detail of the case which had no novel features. I think I reserved judgment. Nigel’s submissions were par for the course but I could not but feel sad that Nigel – despite the non-binding convention to the contrary – was appearing as counsel in his retirement, after a judicial career where, although he had been no stellar legal genius, he had worked extremely hard and conscientiously.

Maxwell Vautier QC is called to the Inner Bar in the Supreme Court at Auckland on 23 July 1976. With him is Justice Perry, who presided.

Clifford Perry (who became Sir Clifford in 1976) was the senior judge in Auckland at the time of my appointment in 1976. He was very welcoming and kind to me in my early days on the bench. He may have had a fellow feeling for me in that he too had won a Privy Council appeal (Lee v Lee’s Air Farming Ltd [1961] AC 12) when both judgments in the New Zealand courts had not been in the appellant’s favour.

I appeared before him in 1967 in a three-week jury trial. I unsuccessfully defended the Cook Islands Government which was being sued for malicious prosecution. In the early days of independence for the Cooks, one could still litigate civil cases in the New Zealand Supreme Court. I had felt that some of Perry J’s interventions and questioning of witnesses was hovering around the Jones v National Coal Board [1957] 2 All ER 155 strictures – but the case was settled before an appeal could be heard. My detailed knowledge of the law of malicious prosecution, of necessity acquired in the course of that trial, was never again called upon in the years that followed! Later in that same year, I appeared before Perry J as counsel for the accused in a murder trial where the jury accepted provocation as a defence and found manslaughter.

Sadly, Perry J did not get on so well with certain other Auckland judges nor with Wild CJ, despite his being ex officio as Senior Puisne, Acting Chief Justice, if Sir Richard was out of New Zealand. He presided over the second Arthur Allan Thomas trial, for which role he prepared meticulously. His health was not robust – a fact that did little to boost his judicial output to the level of that of younger colleagues. His judgments were careful and not often appealed.

The triennial law conferences

I had got to know Lester Moller when he was Chairman, and I was one of the Joint Secretaries, for the 1963 NZ Law Conference in Auckland. The late Richard Craddock was the other Joint Secretary - an interesting position that involved a lot of work, accommodating the vagaries of some egos and enjoying the chance to meet legal celebrities from overseas.

The grand triennial law conferences, with their extravagant opening ceremonies and their arrays of visiting Commonwealth jurists, are no more, sadly. Replaced by specialist gatherings, they provided the opportunity for all members of the profession, city and rural, litigation and conveyancing, old and young, to mingle, attend papers on hot legal topics of the day, meet the great and good from overseas, enjoy sporting and social occasions and generally do what lawyers like doing – talking to their peers. As numbers of attendees increased and suitably-sized venues became harder to find, the logistics of running the conference became all the more difficult. But being a Joint Secretary, a role given to two youngish practitioners every three years, was exhausting but highly enjoyable.

A son of the South and a brilliant graduate from the Otago Law School, Lester was a pre-war Rhodes Scholar. He “went up” to Brasenose College and obtained his Oxford degree. After the war, he became a partner in an Invercargill firm. His abilities as counsel there led to an invitation to join the Auckland firm of Wallace McLean (now absorbed into Denton’s Kensington Swan). In Auckland, he quickly became a leading counsel and highly popular in the profession. So much so that he became President of the Auckland District Law Society in the year of its hosting of the Triennial Law Conference which meant that he was the titular host for what was to be the biggest legal gathering in the country to date. He had to entertain the visiting grandees (with plenty of helpers) – Lord Parker LCJ and Lady Parker from London and Sir Charles Lowe, a senior judge from Victoria – for example.

The copious file notes

In the following year, 1964, to nobody’s surprise, Lester Moller was appointed to the Supreme Court Bench. As a judge, he was meticulous over detail, strict on enforcing rules of evidence and on upholding standards of conduct at the bar. He always made copious file notes – even writing extensive reasons for adjourning a proceeding.

He was particularly strict on undefended divorce day, especially with those counsel who sought to prove verbal separation agreements by asking leading questions. His questioning of private enquiry agents giving evidence in adultery-based petitions for divorce enforced adherence to the rules of evidence, so much so that several after-dinner speakers have been known to quote these questions. At times, his experience with the Otago and Oxford dramatic societies could be detected in his demeanour with juries or witnesses. He had a good grasp of legal principle and a judge-alone argument before him could be a satisfying experience for counsel. His judgments were soundly based and not often successfully appealed.

After his retirement, he became stricken with a serious illness. Yet, he faced his many health-related ordeals with huge courage. I would visit him at home when he was quite ill. He always greeted me immaculately attired and pressed me to join him in a drink, although his ability to enjoy a drink was hugely limited. Always interested in what was happening at the court, always cheerful, charming and amusing. Yet, underneath it all, in considerable distress.

Common-sense approach

Sir Clinton Roper

Sir Clinton Roper was the Christchurch Crown Solicitor when appointed to the Supreme Court in 1968. As a judge he sat in that city where he was greatly respected and loved by Canterbury lawyers. He was hugely experienced and had a direct and common-sense approach to the many problems one faces on the bench. His humanity was demonstrated in the one major appearance I had before him when he was helping out in Auckland. With a youthful Sir Grant Hammond (as he then wasn’t) as my junior, we appeared for an unfortunate lady who had some mental problems and who had undergone a lobotomy (sadly, not uncommon in the 1970s) at the behest of her father. He was a staunch member of a sect which was very controlling and which ostracised any family member who did not want to follow the party line.

I forget much of the detail of this distressing case, but I do recall how sensitively, yet firmly, Roper J dealt with it. He certainly won my admiration for finding a solution in a humane manner. No solution was ever going to be ideal, but Roper J did well in an impossible situation.

An early member of the corps of retired judges and senior barristers who have served the Cook Islands well as Chief Justice, Clinton invited me to become a member of the Cook Islands Court of Appeal in 1990. I have been honoured to have served in that role until my retirement in 2019.

Admitted as a solicitor in 1957, 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.

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