New Zealand Law Society - At the Tribunals Bar

At the Tribunals Bar

By Sir Ian Barker QC

In the 1960s and 1970s, New Zealand’s closely-controlled economy spawned numerous tribunals which licensed all manner of commercial activities. This social phenomenon was no bad thing for litigators, since success in gaining a licence was often not easy and usually involved a defended hearing and sometimes an appeal to another, higher-grade tribunal. Moreover, those wanting a licence frequently were not “short of a few bob”, as the old saying goes. In any tightly-regulated industry, having a licence to operate in the industry was often an easy way to make money!

Lore rather than law predominated. Many tribunals had a statutory right to accept any evidence - despite the normal rules. Many took advantage of such an enabling provision. Some constituting statutes contained an “Anisminic” section which was supposed to make them impervious to the prerogative writs, although judges (who never like legislation which prevents access to the courts) usually did their best to interpret such provisions restrictively (see Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147). Often, tribunal hearings would basically decide whose business should be enhanced by the grant of a licence. This imperative often led to acrimony at hearings which could be softened by the instruction of senior counsel who could lend some credibility to the application for or to the opposition to the grant of a licence. A robust approach was usually expected of counsel nevertheless.

In an earlier article, I have given some comments on the Liquor Licensing Committees (LawTalk 931, August 2019, “Memories of the Auckland Magistrates’ Courts”) so I shall not discuss them again. I do note that, whenever the ruling liquor body for the whole country – the Licensing Control Authority – allocated a new wine shop or the biggest prize of all, a liquor wholesale licence, numerous applicants, each armed with reasonably experienced counsel, would vie for the licence. All contestants would urge that the licensee could operate in premises, objectively inadequate, which were often about all there were on offer in the suburb or town about to be blessed by the arrival of the new liquor outlet.

Transport Licensing Authority

The Transport Licensing Authority (“TLA”) was one tribunal frequently patronised by counsel. One of its functions was to regulate the taxi industry. Licences were closely held but there were few cowboys in the business. However, more often, it sat to consider applications for exemptions from road carriers who wanted to cart goods over distances covered by the NZ Railways monopoly. I think the restriction was for cartage over 40 miles but this was later extended.

Each TLA was a “one man band” (no women in the role in those benighted times) who had jurisdiction in a defined geographical area. The first TLA whom I encountered in Auckland was a retired military man called Brigadier Park. I recall that he had once paid an official visit to the school cadets when I was at boarding school. Almost every male-only school had cadets at a time when the war was not a distant memory. The Brigadier was courteous, well-organised but rather remote. He did not make many waves as TLA.

His replacement was a public accountant called Bill Allingham. I am not sure whether he had had over-much previous involvement in the road transport industry. He was not plagued with self-doubt (as UK obituary writers are wont to say) and took to his role with enthusiasm. He sat in the Transport Department offices and every word uttered in the proceedings before him was recorded, to be transcribed when there was an appeal. Somewhat better than the minimalist recording of evidence in both criminal and civil proceedings in the Magistrates’ Courts or in some other tribunals of the times, less generously resourced by other Departments of State. Delphic hand-written notes occasionally passed as the Magistrate’s record of proceedings before him.

NZR’s lay advocates

The opposition to applications for exemption from the rail monopoly – apart from income-protecting opposition frequently offered by competitors in the road haulage industry – was provided by specialist railway officers who were lay advocates employed by New Zealand Railways (“NZR”). NZR usually ran at a loss which was covered by the taxpayer. Politicians, close to an election, were known to require NZR to take on unemployed people so that the country’s unemployment figures would look respectable on Election Day. The losses were thus not always NZR’s fault.

Besides requiring NZR to take on needless unqualified and inexperienced staff, governments tended to starve the rail system of capital – particularly for branch lines which the Government wanted closed. The famous Nelson Railway to Nowhere provides a good example of this tactic. Competitors had rights of appearance before the TLA also. Often a mix of non-legally qualified advocates and litigants in person competed for the TLA’s interest. Rules of evidence were not relied upon and hearsay and unqualified opinion reigned.

I had many tussles over the years in this forum. Sometimes, my knowledge of the railway system, the result of a lifelong interest in trains born of a Taumarunui boyhood, was able to provide a reality check when the railway advocates got rather too expansive. One of my last appearances was for a carrier who carted crushed grape juice from Gisborne to two Auckland wineries. Wine purists will be dismayed to know that the carrier back-loaded with liquid sugar from Auckland to two Gisborne wineries. The NZR put up some opposition but the reality was that the volatile special cargo needed special and speedy despatch to its winery destination and could not endure a rail journey – particularly when there was no direct railway line from Gisborne to Auckland, a would-be useful project ultimately abandoned. My carrier got his licence.

Motor Spirits Licensing Tribunal

The Motor Spirits Licensing Tribunal was the domain of Jim Bain who had set up a branch in Auckland of the Crown Law Office and who later became a temporary High Court Judge. The Tribunal’s job was to authorise petrol outlets and Jim was an amiable and capable filter of licence applications. I got involved in the seemingly endless saga of the White Glove Service Stations which is another story.

Shops and Offices Exemption Tribunal

The Shops and Offices Exemption Tribunal was a well-retired magistrate called Mr HJ Thompson. It sat but rarely. In those days, there was little retail trading allowed on the weekend, but retailers – usually in tourist towns – could apply to the Tribunal for exemptions which were hotly opposed by both the relevant trade union and employers’ organisation. Exemptions were not often given.

Sometime in the 1960s, I was instructed to apply to this Tribunal for an exemption by all the shopkeepers in Warkworth to allow them to open on Saturdays. Warkworth, then a sleepy village, was starting to develop its present role as a service centre for the numerous settlements on the nearby coast where holiday homes were being built in increasing numbers. Retailers there felt that if places like Queenstown and Taupō could have exemptions, then Warkworth should have them too. (I am not exactly sure which towns then enjoyed exemptions, but they were not numerous.)

After quite a wait for a fixture, my clients and I turned up for the hearing at the historic but miniscule Magistrates’ Court in Warkworth – closed not so long ago and not replaced. (For further information about this and other historic court houses, see Terry Carson’s excellent book on old North Island Courthouses, Built for Justice.)

The Tribunal was remote, although courteous, and engaged in the proceedings rarely. The opposition from the union and employers was predictable. Unlike the TLA, he was not provided with any facility for recording evidence, as I remember. Many retailers gave evidence to show how Saturday closure of their shops made life difficult for the growing number of weekend residents of beach properties who found shopping in Warkworth convenient. Moreover, I believe that most of their employees were not diametrically opposed to the idea. After a fairly lengthy gestation, the judgment was issued in our favour – rather to my surprise. The statute gave those opposed to the decision no right of appeal.

Town planning committees

Local authorities then as now thrived on committees. Town planning committees especially; but there were others involving gripping subjects like an approved route for drains. No fancy names like “Resource Management”. No experienced and well-qualified hearing Commissioners, just elected members of the council hearing the application with the council’s town planners (often with little qualification or experience) in the background. One often suspected R v Sussex Justices principles about advisers not deliberating with the decision-makers and their discussing matters not raised at the hearing were probably ignored. Some of these committee decisions would not stand up in today’s eco-sensitive environment or under the blowtorch of judicial review – which did not come along until the Judicature Amendment Act 1972 .

Planning permissions, known as “specified departures” were dispensed at times rather idiosyncratically by local councillors against a background of a slowly-emerging profession of well-qualified expert planning consultants, some rather dodgy District Plans and a badly-drawn and opaque piece of legislation. The Town and Country Planning Act 1953 should have won an Oscar for its bad drafting. For instance, it had a provision purporting to award compensation in some circumstances. I never was able to discern what those circumstances were nor did I encounter another lawyer who did. There were no cases on the section of which I was aware.

Town and Country Planning Appeal Board

Many council planning decisions were taken on appeal to the Town and Country Planning Appeal Board which had been established by the Act. Its first manifestation was chaired by a Christchurch Magistrate called FF Reid. He sat with two or three members who were often retired council engineers or Ministry of Works officials. That now abolished Ministry held great sway in those days. It negotiated all the compulsory acquisitions for government projects, often less than generously from the stand-point of the landowners. It also had appearance rights before the Board and was routinely served with appeal papers for every appeal.

FF Reid delivered many judgments on behalf of the Board over some years. All were dutifully recorded in their usual brevity in the New Zealand Law Journal. My recollection of my few appearances before him was of a no-nonsense dispenser of justice in an area of law that was only just developing. If a local authority had made a sensible decision, it had little to fear from the outcome of an appeal. The other members of the Board had little to say at the hearing usually.

As the number of appeals increased because more and more territorial local authorities (more numerous and historically anomalous than they are now – think, for example, of the abolished examples of tiny local bodies like the Naseby Borough Council or the Great Barrier Island County Council). Local authorities were required by statute to produce District Plans which regulated land use. Many just could not afford to do so or to do so properly. As business increased, other Appeal Boards were created. So there we had at various times, the No. 1 Board, the No. 2 Board, and the Special Board. After a while, the name was changed for all permutations of the appeal boards to “The Planning Tribunal”.

Some of the Board Chairs

A perusal of the 1969 New Zealand Law Journal shows that Chairs of the Boards included JH Luxford, formerly Chief Judge in (then) Western Sāmoa, Chief Magistrate in Auckland and one-term Mayor of Auckland; Joseph Watts, a Wellington lawyer with local body law experience and JW Kealy SM, about whom I have already written. Occasionally, the reports reveal decisions delivered by a deputy Chair named Beaumont. Planning cases – mainly seeking prerogative writs (later judicial review) – reached the then Supreme Court and Court of Appeal during this period when the parameters of jurisdiction and discretion for local authorities were being set.

Gradually, the standards for today’s resource management justice system were being laid. As I have noted elsewhere, it was Arnold Turner SM (later Judge Turner) who insisted on high standards. He ran the Appeal Boards (now Environment Court) with huge efficiency and produced judgments of high quality. His judicial colleague, who chaired the other Board for most of Arnold’s time in office, was Judge John Treadwell. John was efficient and pleasant and had good standards, although he was not quite as forceful as Arnold. Arnold’s period in charge saw the development of not only a specialist bar, but also the rise of well-qualified experts who frequently gave evidence on appeals which provided for a rehearing before the Board with oral evidence and witnesses being cross-examined – which was not allowed at hearings before a council.

There were other tribunals such as the Air Services Licensing Authority which seemed largely concerned with aerial topdressing. But I never appeared there.

Those tribunals I have mentioned (and there were others less frequently encountered) will give the 21st century reader a glimpse into one of the principal areas of practice for a litigator in the last third of the last century.

Whither to appeal?

But one cannot leave the tribunals without mentioning that they almost all had an appellate body – often an ad hoc one. For example, the local licensing committees could be appealed to the Licensing Appeal Authority which regulated the issue of liquor licences nation-wide. The TLA could be appealed to the one-man Transport Licensing Appeal Authority. Many of the tribunals had a judicial officer as the appellate member, either alone or as Chair. The appeals (other than town planning appeals) were not all that frequent because of delays in preparing the record and in obtaining a fixture – which sometimes was scheduled to occur in Wellington. One usually had a reasonable passage before these appellate tribunals. Certainly, legal submissions would be given more traction than they sometimes received at first instance before the tribunal.

For the sake of completeness, I mention the courts outside of the mainstream where I occasionally appeared. These usually operated like the Supreme Court in that wigs and gowns were expected dress for counsel and judge. Their hearings were sometimes in the Supreme Courthouse but at times, they were in the remoter outposts of the justice system, like hearing rooms in the old Trans Tasman Hotel in Eden Crescent, Auckland.

Compensation Court

There was the Compensation Court which heard claims under the Workers’ Compensation Act 1956. I appeared before both Judge Pat Blair and a Judge Thomson (not the Shops and Offices man). Both were or had been at the time of my appearances in the 1960s, judges of the Arbitration Court (which might not have been called that then, since what is now the Employment Court has had at least four names that I can recall. More on the Arbitration Court later). Both these judges ran their courts efficiently and well. They and counsel wore wigs and gowns. I don’t think there was any right of appeal from the Compensation Court and I don’t understand why workers’ compensation required a specialist court. Cases in the Compensation Court usually required interpretation of the relevant Act, a task which the then Supreme Court tackled frequently.

Land Valuation Court

Then there was the Land Valuation Court which was an appellate court for local Land Valuation Tribunals. The Court could be accessed directly if it granted leave to by-pass the Tribunals – which still exist. The Court was subsumed into the short-lived Administrative Division of the Supreme Court.

The Land Valuation Tribunals consisted then as now of a Magistrate (now District Court Judge) and two registered valuers. The main business of these committees was and is, to hear claims for compensation for land compulsorily acquired by the Crown or a local authority as well as some appeals regarding valuations of land for rating purposes. The Land Valuation Court was usually Judge Archer and one or two registered valuers. Judge Archer served at various times on the Land Valuation Court, as a temporary Supreme Court Judge and one stint as a temporary judge of the Arbitration Court. He was also Transport Licensing Appeal Authority and Waterfront Industry Tribunal Chair. A fairly versatile judicial officer, he was pleasant to appear before and gave good decisions.

Arbitration Court

I was never sure, as an arbitrator in recent years, why it was called “The Arbitration Court” since it had nothing to do with arbitrations as we know them. I never appeared there since appearances by lawyers were not allowed. This Court pronounced on general wage increases and industrial disputes and played a role thus in New Zealand’s economy. It consisted of a judge as chair and two members, one representing employers and one representing trades union. The members usually had diametrically different views which rather cancelled them out and made the judge the sole effective decision-maker.

A strange feature was the insistence of the judge, Arthur Tyndall, to be called “Mr Justice” and to wear judicial wig and gown. According to the NZ Dictionary of Biography, he was an experienced engineer who qualified as a solicitor but never practised as such. Myers CJ was said to have refused to swear him in as judge of the Arbitration Court. I have heard it said that Judge Tyndall assumed the judicial trappings because, before his appointment, the functions he assumed were undertaken by the junior Supreme Court judge. I do not know enough to say whether that suggestion is correct. Fortunately, the current Employment Court, which is the current successor of the Tyndall Court, has had and now has competent lawyers as its judges. I don’t think any of them has a qualification in engineering! Counsel appear there without restriction.

Marine Inquiries

Finally, I mention Marine Inquiries under the Shipping and Seamen Act 1952 – mainly because I appeared before several of these over my years at the bar. They were usually ordered by the Minister of Marine when there had been a fatality at sea in New Zealand waters. I recall one in the 1960s where a crew member of a yacht – a promising young lawyer – had been killed by a long towline which the yacht had struck. The usual team of a Magistrate and two marine experts (usually retired sea captains) was assembled and a lengthy and thorough inquiry was held into the cause of the accident and recommendations for future guidance were often made. There was a right of appeal to the then Supreme Court (a judge and two different experienced sea-dogs.) Quite interesting exercises which required the acquisition of a detailed knowledge of the rules of navigation.

Such inquiries seem to be no more, although we seem to have had more than a few Commissions of Inquiry (Royal or otherwise), and other lesser inquiries at present to keep some lawyers in gainful employment!

Today’s lawyers do not have the same range of tribunals before which to appear. Tribunals will always be with us but one can say without doubt that today’s lot are more legally focused and more lawyer-friendly.

Sir Ian Barker QC was admitted as a barrister in 1958 and embarked on a legal career which has seen him in the roles of solicitor, Queen’s Counsel (in 1973), High Court Judge (from 1976 to 1997), legal academic (Auckland University Chancellor from 1991 to 1997), and more recently as an arbitrator and mediator.

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