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Finnigan v New Zealand Rugby Football Union three decades on – preserving the story

04 May 2018 - By Sam Bookman

The All Blacks performing a haka Pauline Smith CC-By-NC-ND
Photo: Pauline Smith

Over 30 years have passed since the end of proceedings in Finnigan v New Zealand Rugby Football Union [1985] 2 NZLR 159. The case remains one of the most remarkable in modern New Zealand history: in 2008, a survey of Court of Appeal judges ranked it among New Zealand’s top three landmark cases (see Susan Glazebrook “What Makes a Leading Case? The Narrow Lens of the Law or a Wider Perspective?” (2010) 41 VUWLR 339). It remains a staple of introductory law courses at law schools as an example of the role that litigation can play in wider social and political disputes.

Last year, with funding from the Law Foundation, and support from the University of Auckland, I interviewed some of the main participants and archived key documents from their personal files. The results of that project have been made publicly available and edited into a podcast. This podcast series explores the issue of public interest litigation in New Zealand through the story of one case: Finnigan v New Zealand Rugby Football Union, a case which challenged an All Blacks tour of South Africa.

A quick recap

The Finnigan litigation was a successful attempt by a group of lawyers to halt the proposed 1985 All Blacks tour of South Africa, which due to the apartheid regime, was subject to a global sporting boycott. The 1981 South African tour of New Zealand had led to widespread scenes of civil unrest as protesters battled rugby supporters, and police were accused of excessive use of force.

After political efforts by Prime Minister David Lange failed to persuade the Rugby Union to cancel the tour, about 30 lawyers met in Auckland to discuss legal options. From that group, a team emerged to challenge the case through litigation. The case was led by Sir Edmund “Ted” Thomas QC, later to become a judge of the Court of Appeal. But it was Rodney Hansen QC, later to become a High Court Judge, who Sir Ted credits with formulating the litigation strategy: the lawyers argued that the case breached the requirement in the Rugby Union’s own rules that it must act in order to “promote, foster and develop” New Zealand rugby. The lawyers claimed the decision to tour would instead bring the game into disrepute.

The lawyers recruited two plaintiffs, Paddy Finnigan and Phil Recordon (later to become District Court Judge Philip Recordon), who were members of Auckland rugby clubs. Their standing was contested by the Rugby Union and the case was struck out by the High Court. But the plaintiffs were reinstated by the Court of Appeal, and sent back to the High Court. With time running out before the team’s departure, the lawyers successfully obtained an interim injunction preventing the All Blacks from travelling, prompting the Rugby Union to admit defeat and cancel the tour before the matter was finally decided. Leave to appeal the issue of standing was denied by the Court of Appeal, and ultimately by the Privy Council in 1986.

Preserving the story

There is a real risk that this case may fall away into an obscure historical footnote. The Finnigan case was closely bound up in the broader context of 1980s radical social change. But many law graduates today, including this author, have no living memory of the 1981 or the proposed 1985 Springbok tours. Most millennials raised in cosmopolitan Auckland or Wellington in the 1990s do not appreciate the historic significance of rugby contact with South Africa. The comments of Cooke J (as he was then), that the case – being about rugby – was one of “major national importance” that “affects the international standing of New Zealand”, are difficult to comprehend in today’s New Zealand (Finnigan [at 179]).

And yet, lawyers with first-hand involvement in or memory of the case will attest to its importance. Finnigan is a unique instance in which a broad swathe of the legal profession used litigation as a means of influencing government policy. The plaintiffs were lawyers; the funders were lawyers; and, of course, the lawyers were lawyers.

The Finnigan story is one that has the potential to inspire future generations of lawyers, or at least spark debate about the role that the profession can play in contemporary society. I believe it is worthy of preservation and transmission to a new generation.

During my research, I interviewed 15 participants involved in the case, many of whom had never previously gone “on record”. I talked to lawyers, activists, journalists, and even a then-member of the Rugby Union’s governing council. I was granted access to many of their personal documents, some of which have remained in files and boxes since the conclusion of the proceedings. Thirty-three years on from the decision, I found that the participants from both sides were willing to speak freely about their experiences.

What is so remarkable?

The great legal historian Brian Simpson once commented that “[y]ou cannot understand litigation simply by reading law reports” (AW Brian Simpson Leading Cases in Common Law (Oxford University Press, 1996, at 11-12). Instead, he suggested that to understand a case it must be treated like a “legal archaeology”, looking to as wide a range of sources as possible and trying to understand the judicial process in light of the wider social and political context.

Although the Finnigan case dominated the attention of New Zealand in 1985, much of its wider context has now been forgotten. Reading the law report alone will not do justice to the case. The ratio is restricted to its facts and, aside from some developments in standing and incorporated societies law, the judgments have rarely been cited in subsequent cases.

It is only through a process of legal archaeology – interviewing participants and reviewing disparate files – that the significance of the case can be located. This is true in both a historical and a legal sense. The case is a snapshot of an extraordinary moment in New Zealand social history, emblematic of the wider fault lines emerging in New Zealand society: progressive vs conservative; urban vs liberal; traditional vs multicultural. Participants explained to me that there was a natural link between the Finnigan case and later landmark public interest litigation, such as New Zealand Māori Council v Attorney-General [1987] 1 NZLR 641 (CA). Indeed, Chief Justice Dame Sian Elias acted as counsel on both occasions.

Throughout the interviews, it was striking to hear the extent to which the participants viewed themselves as part of this cultural collision. Tom Johnson, a then councillor of the Rugby Union, described it as a clash “between the egalitarian old colonial New Zealand outlooks and attitudes, with the young coming through with a much more idealistic look”. Judge Recordon told me that he was forced out of his rugby club for taking a stand against the tour. Almost all participants spoke of the abuse and vitriol they received – Paddy Finnigan even provided me with originals of anonymous death threats. A full inquiry into the case offers an accessible and fascinating snapshot into this divisive period of New Zealand history.

Furthermore, a study of the plaintiffs’ strategies may be instructive for future lawyers attempting strategic litigation. In my interviews with the plaintiffs and their lawyers, I learned about the difficulty of recruiting plaintiffs with the requisite degree of standing. I also learned that, in the view of both the plaintiffs’ and the Rugby Union’s lawyers, the key to the success of the case was the adaptable nature of it. The plaintiffs’ initial grounds of argument were narrow and technical, and the case instead shifted daily between grounds of contract, public and incorporated society law which frequently overlapped. As the Chief Justice suggested to me, this reflected a wider philosophy of the fluidity between different branches of law: “public law is a construct which draws on private law principles”. Sir Ted Thomas explained to me that during the hearing, the case was essentially rewritten each night. It would not have succeeded but for this nimbleness.

Perhaps most significantly, I found the interviews most fascinating because of the participants’ candidness about the reality of judicial reasoning. Most interviewees accepted that the judges who decided the case – particularly Cooke J in the Court of Appeal and Casey J in the High Court – could not help but be influenced by the wider social and political environment in which they were making their decision. They had been witness to the chaos of the 1981 tour and news coverage of apartheid South Africa. Several interviewees also suggested that Casey J must have been moved by the dramatic testimony of Arnold Stofile, an anti-apartheid activist who gave evidence at the hearing and was imprisoned on his return to South Africa. These reflections were particularly interesting in light of the fact that many of the participants went on to become judges themselves.

Strikingly, almost all participants agreed that earlier anti-tour cases – particularly Ashby v Minister of Immigration [1981] 1 NZLR 222 (CA) in 1981 – had been stronger. But it was not until 1985, when the social conditions were ripe, that the courts were ready to interfere with sporting contacts. As Rodney Hansen J, the solicitor for the plaintiffs and later a High Court Judge, explained to me: “I do think that the social conditions, attitudes, and just simply the way that you can kind of mould and shape the case do influence what is happening. That’s how the law changes and evolves and progresses and reflects what is going on in society”.

Putting it on record

Most of the case participants who agreed to be interviewed have generously allowed their interview transcripts to be placed on the public record. They have been edited into a volume which has been deposited in the Davis Law Library at the University of Auckland.

In order to make the Finnigan story accessible to a wide audience, the interviews have been edited into a narrated podcast which also draws on audio archives supplied by Ngā Taonga Sound & Vision. It is freely available on the Law Foundation’s YouTube channel and is pitched at the level of a non-lawyer or early law student.

By recording the history of the Finnigan proceedings, the full impact of the case will be preserved for future generations of social historians and lawyers. It is hoped that the materials will eventually form the basis for a book chronicling the case and its lasting impact.

Sam Bookman is an LLM candidate at Harvard Law School. He received a Law Foundation grant to enable research into the Finnigan litigation in early 2017 and this was supported by the University of Auckland Law School.

Last updated on the 4th May 2018