New Zealand Law Society - Three Twentieth Century Judges

Three Twentieth Century Judges

By Sir Ian Barker QC

Sir Ian Barker QC
Sir Ian Barker QC

When first writing this series I intended that I should discuss people prominent in the law in those distant days when I was a young(ish) lawyer. I later extended the menu to include some deceased judges who might not be well-known to many of today’s lawyers. However, two of those I am including in this present offering are fairly recently deceased. All three were all excellent lawyers and judges as well as wonderful human beings. I was very fond of them and hence I felt able to step outside of any self-imposed limitation of subject-matter.

None of these was accorded a memorial sitting after his death. Such sittings have been fairly rare in Auckland in recent years, although I do recall a couple. Memorial sittings give the judiciary and the profession the opportunity to express not only sadness at the loss of a distinguished person, but to detail the contributions to the law made by the deceased – some of which would be unknown to many.

Sir Graham Speight (1921-2008)

Graham Speight was appointed to the Supreme Court bench in late 1967. I remember well walking with him along Waterloo Quadrant after a hearing in the saga of Steel Construction Ltd v Queensland Insurance/ Westfield Freezing Works v Steel Construction Ltd where he had been briefed as senior counsel. (As noted in an earlier article, Westfield v Steel Construction [1968] NZLR 680 was TA Gresson J’s last written judgment: “The (then) Supreme Court Judges”, LawTalk 935, December 2019, pages 69-75). Graham told me that I would have to soldier on in the case as leading counsel because of his appointment: but he generously offered the services of David Baragwanath as a junior. David was from his firm and newly returned from Oxford. He and Graham had been two of the successful counsel in Fraser v Walker in the Privy Council in the previous year. Needless to say, this offer was eagerly accepted.

Graham had had a distinguished war record. He was a partner in Meredith, Meredith, Kerr and Cleal (as Meredith Connell then was called) – then as now, the Auckland Crown Solicitor’s office. He succeeded Sir Vincent Meredith and Mr GSR Meredith (known as “Mister Bob”) as Crown Solicitor, the office he held at the time of his appointment to the bench.

He was one of the best cross-examiners I have ever encountered. I have listened to 40 years of cross-examination – some good, some execrable and most fairly ordinary. His questions were always shortly-expressed and usually permitted only one of two possible answers. He would never end a question with “Wouldn’t you”, “Didn’t she” or other “N’est ce pas” type expressions which some lawyers use today and which are confusing for witnesses and judges. His addresses to the jury were succinct, displaying a complete mastery of facts and without unnecessary emotion. He was a very effective, fair and ethical prosecutor. His knowledge of the criminal law was encyclopaedic. In fact my first contact with him was as one of a class of about 25 in 1953, when I was taught criminal law by him.

Graham was briefed in civil cases – both for the Crown (lots of railway and forestry personal injury cases and Ministry of Works compulsory acquisition claims) and by other firms, mine included. The profession realised his skill in absorbing difficult facts and making them understandable to judges and witnesses.

The Kaimai air disaster proceedings

I had become involved with the aftermath of the Kaimai Air Disaster in 1963 when an NAC DC3, en route from Auckland to Tauranga, crashed into the Kaimai ranges on 3 July, killing all 23 people on board. Because none of the passengers was on an international ticket, the Warsaw Convention did not apply. Compensation for death claims on domestic flights was limited by a common form of statutory regulation in those over-regulated times, designed to limit the liability of a government-owned entity. The maximum amount that could be awarded for any one claim was £5,000 and, unlike for international claims, one had also to prove negligence. Some of the potential claimants under the Deaths by Accident Compensation Act 1952 clearly had claims for more than that amount.

Graham Speight (whom I instructed as senior counsel) and I persuaded all the various solicitors acting for the estates of deceased passengers and crew to agree to join forces in their damages claims. An unfortunate precedent showed the desirability of such a tactic. Sometime before the air disaster, on 7 February 1963, a bus carrying people who had been to the annual Waitangi Day functions went off the road whilst traversing the Brynderwyns between Auckland and Whangārei when the brakes failed. There were 15 fatalities with others seriously injured, our worst road crash. A succession of diverse and uncoordinated claims was filed by different lawyers, without much commonality of defendants or causes of action. Some sued the bus operator; others the garage which had passed the brakes for a warrant. I believe there were other defendants. Defendants had different insurers. Some claims settled quickly, some dragged on. Some were said to have been settled too readily. I do not know since I was not involved in any of these claims. Yet the legal quagmire of uncertainty in the bus case convinced us that, given a statutory limitation and a deep-pocket defendant, all Kaimai claimants had to be united.

The solicitors who were in different locations, readily agreed and each estate was levied a contribution to the fighting fund. Each plaintiff was named in the proceedings that were issued. A cautionary tale for any sort of action involving plaintiffs with identical liability claims. We felt that prudence demanded the nomination of all plaintiffs in the proceedings filed because of an earlier test case which held that Glasgow leases (and there are a lot of them in Auckland) were subject to the Tenancy Act. The case had been taken in the name of one leasehold owner but many had contributed to the fighting fund. The leasing organisations (mainly church-oriented) quickly lobbied to get legislation passed to nullify the court ruling. But only the one plaintiff was excluded from the scope of the “reforming” legislation, despite the fact that many in a similar position had been affected and had contributed to the litigation cost. So we deemed it advisable to have all plaintiffs involved in the litigation. This cautionary tale about legislative “patching up” may still apply today in other than personal injury situations. One would hope that the Legislature nowadays would not be so compliant and be more resistant to lobbying.

The Air Department as defendant

Mindful that the draconian limitation of liability might prove hard to overcome, we looked around for another defendant and sued the Crown in the guise of “The Air Department” (because our expert advice had been that there were deficiencies involving the beacons and warning systems for Tauranga airport which, if better, might have warned the pilot of impending danger). We lost before Hardie Boys J (the elder) on a challenge to the limitation regulations (see Graham v Attorney-General [1966] NZLR 93). The Court of Appeal was sympathetic but agreed with the judge. It refused leave to appeal to the Privy Council.

Most of the claims were under the limitation figure but some were not. NAC waived the requirement of proving liability, as I recall. All were eventually settled with the Crown contributing for those settlements over £5,000. The litigation cost to individual claimant estates was definitely less than it would have been if the claims had each been administered separately. The same strategy was followed, I understand, to combine the resources of all claimants in the litigation after the Erebus Disaster – to similar positive effect.

On the bench, Graham was courteous, quick and usually several jumps ahead of counsel. I remember an early judgment of his where I had persuaded him to find for a taxpayer against the IRD which appealed, instructing the formidable Eric Winkel as its counsel. Sir Alfred North was against me from the start of the appeal, at one point removing his wig (this was before the Woodhouse “experiment” to abolish wigs in that court), scratching his pate and intoning in adenoidal tones about the judgment under appeal: “Well, he must have been a very clever judge to have given this judgment so quickly”.

The loser is most important

In his Harkness Henry Lecture, published in (2004) 12 Waikato Law Review 1, Sir Noel Anderson recounts Graham’s advice to new judges that the most important person in the courtroom is the loser. Graham lived up to that advice when giving judgment. He was – because of his huge experience in criminal law – the “go-to” person for any judge with a criminal law problem; something that often happened unexpectedly in the course of a trial. No matter how he was placed work-wise, Graham was always immediately available to solve the problem. He had probably encountered it before.

He was one of the first Executive Judges for the Auckland region when Davison CJ created the role. Even in those days, this was not an easy job, but one which he discharged with his trademark panache and knowledge of the strengths and weaknesses of each of his flock. Criminal trials under Graham took up far less time than they seem to do now because of his vast knowledge of crime and his pleasant and efficient disposal of objections. Counsel were not inclined to raise frivolous and time-wasting points. Those who tried were fairly pleasantly but effectively told what the situation was.

He was Chancellor of the University of Auckland for six years – a role which I later filled. He brought his flair for efficiency and his people skills to this role which has probably become more difficult and time-consuming over the years as student numbers burgeon and funding decreases. The judges were all pleased that Graham had been chosen for this prestigious role, which did not diminish his judicial output.

Judging in the Pacific

After his retirement, Graham became Chief Justice of the Cook Islands, succeeding Sir Gaven Donne who had set the newly-independent nation on an excellent legal path. Graham was the first of the retired High Court judges and leaders of the bar who, over the years, have fulfilled this role with distinction. He also became a judge of the Fiji Court of Appeal. I first sat in that court with him and Sir Barry O’Regan in 1984. A great experience for me to sit with two fine lawyers who had a relaxed manner and who were delightfully amusing and stimulating company for the month of the session. One case in that session which I recall involved Ratu Mara as a party, represented by Michael McHugh, soon to become a judge of the High Court of Australia

Graham was also a pioneer in putting New Zealand on the map for international arbitration. He was the arbitrator in the Mobil Oil arbitration competition case (see the excellent judgment of Heron J delivered on 1 July 1987 and reported as Attorney-General v Mobil Oil NZ Ltd [1989] 2 NZLR 649 and also the Court of Appeal judgments in an early ICC arbitration involving the Marsden Point Oil Refinery (New Zealand Refining Co Ltd v Attorney-General CA 40-92, 17 December 1992). He also arbitrated other less-celebrated disputes

He was also a fine yachtie, becoming Commodore of the Royal New Zealand Yacht Squadron. When a civil case settled or there was a late guilty plea in a criminal trial, Graham would head for the golf-course, accompanied at times by Peter Mahon. His judgments were always up-to-date.

Much more could be written about this accomplished judge who excelled in his task to which he devoted his many skills and his wide experience of life both within and out of the law.

Sir Thomas Thorp (1925-2018)

Tom Thorp was only five and had just started school when the Napier Earthquake of 1931 struck. He vividly recalled that day even when he was in old age. His father owned a shoe store, damaged in the quake. Tom was to go on to study for a law degree at Auckland, clerk for Nicholson, Gribbin, Rogerson & Nicholson and move to Gisborne. He soon became a partner in the firm of Nolan & Skeet which had a history dating back many years, as Tom pointed out when arguing before me in Gisborne his last case before appointment to the bench. In one of the old authorities on which Tom had relied, Mr Skeet (not usually in the pantheon of deceased Poverty Bay lawyers) was recorded as counsel.

Operating from a rather gaunt-looking building, where Sir Āpirana Ngata had once been employed by the firm, Tom and his partner and friend, the late Peter Robinson, built up a large and successful practice on top of the one already established. Tom became an expert in several areas – notably taxation. His advice was sought not just from the firm’s clients – some of whom were numbered amongst New Zealand’s then financial elite. Law firms from many other parts of the country turned to him for taxation and estate planning advice. His drafting ability was legendary. I remember the late Peter Mahon – himself no slug with the written word – recounting to me his amazement at Tom being able to dictate a complex document of great length which, when typed out, required no editing or amendment. Tom was also well-versed in Māori Land legal problems and offered advice to Māori leaders.

Another of my diversions. At Nolan & Skeet in Tom’s time, partners always signed letters in the firm name, “Nolan & Skeet”. Tom’s spidery and distinctive handwriting, displayed in the firm’s signature was something else! In the 1960s and 70s, a few other New Zealand firms followed this procedure. “Bell, Gully & Co” comes to mind; English and Sydney firms often did this procedure. I should be interested to know whether any New Zealand firms employ this rather quaint custom now. Probably not, because so much correspondence is by email.

Crown Solicitor

Unlike most commercial lawyers, Tom had a broad knowledge of criminal law and practice, being appointed Crown Solicitor in 1963. Whilst possibly one of the most scholarly persons to have held that role, Tom was widely respected in the criminal justice system for his compassionate and understatedly moderate approach which proved very effective.

He was also for some years President of the Gisborne District Law Society and helped maintain the tradition of competence and good preparation that I, as a visiting judge to Gisborne, always found to be the hallmark of Gisborne counsel. I speculate that the long tradition of Supreme Court sittings plus the long-standing self-containment of the legal community (with their own Land Transfer Office, Stamp Office, Companies Registry, etc) was reflected in the careful submissions and conduct of trials, civil and criminal, that I always encountered at the Gisborne sessions.

So it was no surprise when he was appointed to the Bench in 1979. He was sworn-in by Perry J, then Senior Puisne, with no other judges in attendance – unlike present-day occasions when, at Auckland at least, many of the judges attending as co-consecrators (to use an ecclesiastical analogy) have to be accommodated in the jury box because the bench is too crowded!

Tom was an instant success as a judge. That success never diminished over his time on the bench. Quick, courteous and usually right. He ran trials – criminal and civil – with great efficiency but with consideration for witnesses and counsel. Because of his Crown Solicitor experience, he was often a “go-to” for judges with trial problems. He rarely needed to take time to prepare a reserved judgment on a procedural issue. He always knew the answer! Complex proceedings did not phase him. His organisation of the many complex issues in the Goldcorp litigation, for example, earned him praise from the Privy Council. On the bench, as in practice, he was able to balance pragmatism and principle. See Simon Mount QC’s obituary on the New Zealand Law Society website.

Auckland’s High Court

Tom took on the superintendence from the judges’ point of view of the refurbishment of and the additions to Auckland’s historic High Court. He was meticulous in this task which had many frustrations. The finished product – especially the old Number One Courtroom – is a tribute to his tenacity and powers of persuasion with the bureaucracy. He always said that the additions were not sufficiently large and that further Chambers and courtrooms were essential for future expansion. But his pleas for greater facilities fell on deaf civil service ears. Several expedient additions – like building extra Judges’ Chambers on the roof – have proved Tom right in his predictions of future needs. I just do not know how 25 judges, four associate judges plus associates and clerks are able to be housed in the appropriate way in a building designed to house, at most, two-thirds of that number.

As Executive Judge for most of the gestation period of the additions, when we and the public had to use the temporary facilities offered by “ice-cream” and “soft drink” factories in Eden Crescent (1982-1991), I was glad that the ever-reliable Tom had accepted the real burden of looking after the new building project.

Tom was also on a judges’ committee of which also included Eichelbaum J (as he then was), Holland J and myself to suggest reforms to the Court system. His experience and perspicacity were greatly valued by us all.

Tom also found time to sit on various committees of the judiciary concerned with criminal practice and sentencing as well as with IT for judges. When the Criminal Appeal Division was created, he was appointed to that and sat regularly on criminal appeals. In my view, he should have been appointed to the Court of Appeal. I do not know why this did not happen. Maybe he did not want to leave Auckland where his wife, Patricia, was an extremely competent City Councillor who headed the important Planning Committee.

After his retirement in 1996, Tom took on the challenge of Chair of the Parole Board. He was the perfect fit for this stressful but highly-important role. His humanity and understanding were paramount. He studied international practice and academic writings and introduced a structured decision-making process whilst retaining his human touch.

The firearms inquiry

He was asked in 1996 by the then government, after the Tasmanian shooting massacre, to conduct an inquiry into firearms in New Zealand. After careful analysis and consideration of the views of interested parties, he produced a report in his trademark logical and lucid way.

He made a number of recommendations including one that semi-automatic rifles be banned and a buy-back scheme be instituted for those already in private ownership. Australia had quickly implemented that sensible course after the Tasmanian tragedy but New Zealand did nothing to implement Tom’s very considered and sensible report. Legislation – not about banning semi-automatics – was introduced in 1999 and like another muted reform attempt some years later, it withered during the parliamentary process. It was said not to have proceeded because of lobbying by “the gun lobby” .The attacker in the Mosque shootings of last year used a semi-automatic weapon which he might not have been able to acquire had the Thorp recommendations been adopted by successive governments. In the public discussions about gun control following the Christchurch tragedy, I do not recall reading any reported comment from the parties of those politicians who opposed the legislative implementation of the Thorp recommendations, as to why they did so.

Tom also went to South Africa, at the request of its government, to make recommendations on gun control. He told me, a few months before he died, that the South Africans wanted further help from him on gun laws. He was not well enough to entertain this request.

Criminal Cases Review

Another project of this multi-talented man was to advocate the establishment of a Criminal Cases Review system. He felt that there had been some fairly rare miscarriages of justice for which the present system did not fully cater. At his own expense, he published a book entitled Miscarriages of Justice and travelled abroad to investigate similar schemes: the one he favoured was the Scottish scheme. He felt that the current system had revealed after his comprehensive review of numerous cases, that there had been miscarriages of justice and that the system did not serve Māori and Pasifika people well. He was greatly pleased when, not long before he died, the current Minister of Justice, Andrew Little, visited Tom at his Parnell home to talk about his proposal for a similar regime in New Zealand and to indicate that legislation was to be introduced.

His interest in the criminal case reviews may have been started from his reviews, at the Justice Department’s request, of several cases of alleged miscarriages of justice and applications to the Governor-General for the exercise of the royal prerogative of mercy. He investigated the Ellis and Bain cases. He expressed misgivings about the Ellis case and made recommendations which, I believe, were not implemented.

Tom’s life was so replete with memorable initiatives which he fostered in practice, on the bench and into an active retirement. The above is but an incomplete summary of the career of an exceptional judge and wonderful human being.

Sir Muir Chilwell (1924-2014)

Muir Fitzherbert Chilwell – despite his fancy given names – was an extremely modest individual, especially on the subject of his numerous accomplishments. Unlike the other two subjects of my present study, he could be painstakingly thorough. While they too were thorough, they were naturally quicker to respond. Yet their convergences of personality were many. Kind, generous, courteous to all, knowledgeable in the law, and with a fine sense of justice. Many more similar epithets which describe their enduring qualities come to mind, but all three did not tolerate praise happily.

After war service, Muir attended Auckland Law School and gained an LLM with first class honours in 1950. Unlike today’s bright young law graduates, Muir did not head off for a prestigious overseas university for post-graduate study and a job with one of the “Magic Circle” London law-firms. Apart from other factors, there were very few scholarships or other forms of financial assistance available to law graduates then. Instead, he soon became a partner in the firm of Haddow, Haddow and Chilwell where he stayed until his appointment as Queen’s Counsel in 1965. He was also to add an appointment as a silk in Victoria (the ones with the black rosette on the back of their gowns). His fame had spread across the Tasman to the extent that he was admitted in Melbourne – pretty unusual for a Kiwi barrister in the 1960s.

“Conveyancing and Taxation”

I first encountered Muir when he was lecturing in the strangely-combined course called Conveyancing and Taxation. His 25 or so students wanted to learn a bit more about conveyancing, since most were involved with property transactions in their employment as law clerks. Few were interested in taxation which, in those days, was the holy grail of a few specialist lawyers as well as accountants – then often accused of trespassing on the legal patch.

Muir was completely up with the play in both subjects and I certainly learned a lot from his carefully-prepared but informally-delivered lectures. Since this was a “certificate” paper, if the lecturer had passed you in term tests and considered that you would pass the final paper, then he (no female lecturers and only one female student in our class, Robyn McMeekan) would issue a certificate to that effect and one did not have to sit the final. Muir was of a generous disposition and subscribed to the “every player a prize” philosophy which meant that even the doubtfully deserving got their certificate.

In practice, Muir specialised in commercial law, including taxation, as well as intellectual property, trusts and probate litigation with some personal injury cases for plaintiffs. He was versatile and briefed by many firms – particularly after he took silk. He played a full part in professional life, becoming President of the Auckland District Law Society, President of the Legal Research Foundation, and President of the Auckland Medico-Legal Society, to name but some of his appointments.

I recall briefing Muir in my early days in practice to appear in the Court of Appeal. Appearances there were “big-time” then – no divisional Courts of Appeal, not much waiting for a fixture and a permanent court of three judges. I learned much from my experience as Muir’s junior. Mastery of the facts and the law were essential. His arguments were finely-crafted and exceedingly comprehensive. The case was about “reasonable access by sea”, a subject Muir, as a boatie, knew much about. It was not his fault that we lost the appeal!

Something good in everybody

His 18-year career as a judge began in 1973. He conducted his court with great courtesy and calm, always helpful to counsel and empathetic to witnesses. He would be loath to cut short even an argument which was bordering on the hopeless and was anxious to explore every facet of the case before him. Criminal accused were always treated with dignity and compassion. He always looked for something good in everybody.

When I became a judge in 1976, one could not find a more helpful colleague. Long before judges were issued with “bench books” suggesting model directions to juries, Muir had compiled his own set of precedents of commonly-required jury directions. He was always generous in lending his precedents to his colleagues. One could use the precedents in the knowledge that the subject had been well-researched and the direction rendered as appeal-proof as possible.

One situation where I was grateful for Muir’s help occurred when I found myself presiding with a jury in Whangārei’s first defamation trial since High Court sittings were introduced there in 1971. Unusually, this was a claim based on an alleged slander (ie, not the usual written defamatory statement) said to have occurred on the occasion of a meeting of a cooperative dairy company in Dargaville. The very experienced counsel were Paul Temm QC and John Henry QC (as they then both were). At the conclusion of the plaintiff’s case, the defendant chose to call no evidence which meant that I would have to sum-up on the next morning. This contingency had not been expected since the trial had been scheduled to last longer. So I had had to prepare a summing-up in a tricky area of the law in which I had had little experience. In practice, would-be defamation plaintiffs had seen the wisdom of a “Even if you win, you lose” approach. I knew that the Whangārei law library was singularly bereft of text books. Certainly there was nothing there on such an esoteric subject as defamation.

An SOS call to Muir saw his defamation precedents sent north on the next bus. I laboured until late preparing my summing-up with deep gratitude to Muir, but was somewhat deflated when Paul Temm came into Chambers in the morning and elected a non-suit. All that then remained was an argument about costs.

The Benipal judgment

Muir’s attention to detail meant that his judgments were longer than those of the rest of his brethren and they took longer to prepare. His longest judgment was that in Minister of Foreign Affairs v Benipal [1988] 2 NZLR 222 (this citation is for the Court of Appeal judgment). His judgment runs to 489 pages and consisted of a meticulous review of the evidence and submissions. The Court of Appeal at page 227 spoke of the judge’s “single-minded concern to do justice that led to these remarkable judgments”.

I was Executive Judge in Auckland at the time the Benipal judgment was in gestation. Muir laboured intensely, his Chambers crowded with law reports. He acknowledged that his way of writing judgments made demands on available sitting time and on his colleagues. But nobody could ever be cross with him. He worked harder and longer than most and his diligence was exemplary.

His was a respected voice at judicial meetings. Even when in the throes of composition, he would always drop what he was doing to help a colleague with advice. On his retirement, he was appointed to the Cook Islands Court of Appeal where he sat for a few years. His professional and judicial life was marked by his commitment, courage and diligence – but most of all by his humanity and modesty.

Sir Ian Barker QC was admitted as a solicitor in 1957 and went on to a legal career as a barrister, Queen’s Counsel, High Court Judge, law academic, arbitrator and mediator.

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