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Of Chief Justices

09 November 2018 - By Geoff Adlam

It will be the end of an era early in 2019 when New Zealand’s 12th Chief Justice retires. A trailblazer in many ways, Dame Sian Elias will have been the third-longest serving Chief Justice since Sir William Martin’s appointment on 10 January 1842.

Dame Sian was the first woman to be appointed Chief Justice. The Senior Courts Act 2016 states that she must retire from both the role and the judiciary before her 70th birthday, which will be on 13 March 2019. She has been our Chief Justice for nearly 20 years – 73% of all women lawyers and 61% of the entire profession have been admitted since Dame Sian’s appointment.

The role of Chief Justice can be traced back in England to 1234, when William de Raley was appointed Chief Justice of the King’s Bench. Our first Chief Justice was also our youngest on appointment. William Martin was called to the English Bar in November 1836 and was aged 34 when he took up the role on 10 January 1842 after a four-month voyage from England. It is likely that Martin CJ had never appeared in court before the first sessions of New Zealand’s (then) Supreme Court in Auckland on 28 February 1842.

Head of judiciary

The Senior Courts Act 2016 states that the Chief Justice is the head of the New Zealand judiciary (s 89) and senior to all other judges (s 120). Section 99 says a person may only be appointed Chief Justice if that person is a High Court Judge or appointed a High Court Judge at the same time as being appointed the Chief Justice. If a Court of Appeal Judge is appointed Chief Justice, that person immediately ceases to hold office as a Court of Appeal Judge.

Section 94 says a person may only be appointed a judge or associate judge if they have, for at least seven years, held a New Zealand practising certificate as a barrister or as a barrister and solicitor. If you’ve been in practice for at least seven years, you are theoretically eligible for appointment as Chief Justice – along with 10,154 other lawyers at mid-October.

The tenure of office for Chief Justice is covered by section 127, with resignation, retirement or removal from office the options. Section 131 provides that a judge may at any time resign in writing to the Attorney-General and section 131(b)(i) provides that a judge may resign from the office of Chief Justice but still remain in office as a High Court Judge. However, section 132(a) requires the Governor-General’s approval for this to happen.

One of our Chief Justices carried on past the mandatory retirement age. Sir Michael Myers’ 72nd birthday (the retirement age at that time) fell on 6 September 1945 but the Government wanted him to represent New Zealand as Chief Justice at international conferences in the aftermath of World War II. The Judicature Amendment Act 1945 allowed extension of his term for another year. A Wellington District Law Society dinner to farewell Sir Michael was changed to a Victory Dinner to welcome home returned services lawyers. Sir Michael finally retired on 31 July 1946.

Incidentally, the age for judicial retirement was lowered to 68 in 1980 but raised to the present 70 in 2007.

NZ-born

The sixth Chief Justice, Sir Michael Myers made history in being the first Chief Justice to be born in New Zealand. He was also the first to have graduated in law from a New Zealand university and the first to have practised as a barrister sole before his appointment.

Hampered with deafness late in his career, Sir Michael was once having difficulty hearing FC Spratt, a leading counsel and a prominent teetotaller and prohibitionist. After being asked to speak up several times, Mr Spratt said very loudly, “Does your Honour want me to shout?”. “No,” replied the Chief Justice, “I don’t think that would be in accordance with your principles, Mr Spratt.” (Portrait of a Profession, page 116).

Speaking at the Victory Dinner, Sir Michael revealed – to the surprise of many – that the appointment of the Chief Justice was the prerogative of the Prime Minister. That endures today: the Chief Justice is appointed on the recommendation of the Prime Minister, while every other judge is appointed on the recommendation of the Attorney-General (s 100 Senior Courts Act 2016).

Interestingly, the last two Chief Justices have both been born outside New Zealand. Sir Thomas Eichelbaum’s family emigrated here from Germany in 1938 to escape the persecution of Jews when he was aged seven. He was naturalised in 1946. Dame Sian was born in London and arrived here as a toddler. Her “technical” birth outside New Zealand means that over half – seven – of our Chief Justices were born overseas. Of those who were New Zealand-born, there is obviously something in the Marlborough/Nelson water, with three coming from there.

Longest tenure

Sir Robert Stout had the longest tenure as Chief Justice. As well as in the law, he attained the top positions in politics and education. Arriving in New Zealand from Scotland at the age of 20 he took up law a few years later and was admitted to the Bar in July 1871 when aged 26. He was the first law lecturer at the University of Otago, from 1873 to 1875 and then began an interesting and turbulent political career. He was Attorney-General and then premier from 1884 until he lost his parliamentary seat in 1887. Throughout his time in politics he continued to practise law. He was also a member of the senate of the University of New Zealand from 1885 to 1930 and chancellor from 1903 to 1923. Retiring from politics in 1898, he was appointed Chief Justice a year later.

As Chief Justice, Sir Robert decided over 1,400 cases – including 450 as a member of the Court of Appeal. “His judgments show great confidence in the correctness of his opinions, enormous industry and wide general knowledge; but they were seldom the product of prolonged deliberation, often being written in haste and lacking literary quality. One in three cases taken on appeal from his decisions was successful,” David Hamer writes in the Dictionary of New Zealand Biography.

The shortest tenure was that of Sir Charles Skerrett, who died in office after serving for three years. Sir Charles was one of the first New Zealand lawyers appointed King’s Counsel in 1907. There has since been just one Chief Justice – Sir Harold Barrowclough – who was not a KC or QC on appointment. Just two years after his appointment, illness meant Sir Charles could not carry out his judicial duties and he finally had both legs amputated because of thrombosis. He decided to go to England to seek advice about artificial limbs but died during the voyage.

While not being appointed QC or KC, Sir Harold Barrowclough had by far the most glittering military career of our Chief Justices. Awarded a DSO for “conspicuous gallantry and able leadership” in World War I, he ended World War II as a Brigadier commanding the 3rd New Zealand Division in the Pacific. He was awarded a bar to his DSO, this time for “conspicuous bravery and brilliant leadership”. Returning to the law after the war, his appointment as Chief Justice was a surprise to many. “Barrowclough was generally considered a better soldier than he was a lawyer,” says JAB Crawford in the Dictionary of New Zealand Biography. Nevertheless, Sir Harold managed finally to get New Zealand a permanent Court of Appeal in 1957 and was held in high regard by the judiciary and the profession.

Court of Appeal

The establishment of the Court of Appeal and the new role of President began an interesting relationship with Chief Justices which endured until 2004 when New Zealand established the Supreme Court over which the Chief Justice presides. “While at times relationships between the Chief Justice and the President of the Court of Appeal were congenial and co-operative, at other times there were unfortunate tensions. Certain Presidents of the Court believed that the positions of the President and the Chief Justice should be combined,” Peter Spiller notes (New Zealand Court of Appeal 1958-1996, page 23).

Until the appointment of Sir Thomas Eichelbaum in February 1989, all Chief Justices were traditionally appointed directly from the Bar and had not served on the bench. This is still theoretically possible, but it is extremely likely that Sir Ronald Davison will be the last direct appointment.

Sir Ronald himself expressed his delight to be the first retiring Chief Justice to administer the oath of allegiance to his successor, Sir Thomas Eichelbaum. All previous appointees were sworn in by a judge of the High Court. “Circumstances as they now exist make it extremely difficult for a person to be appointed directly from the Bar with no previous experience of judicial work or of judicial administration,” Sir Ronald said.

Clause 12 of the 1983 Letters Patent Constituting the Office of Governor-General of New Zealand states that whenever the Office of Governor-General is vacant, or the incumbent is unable to perform any of the functions of the office, the Chief Justice is authorised and empowered to perform the functions of Governor-General. While doing so, the Chief Justice is to be known as the Administrator of the Government. Former District Court Judge Anthony Willy recalls accompanying Sir Ronald Davison on an annual fly fishing trip and encountering a diligent fisheries officer who wanted to impound the fishing gear of one of the group who had left his licence in his car.

“Sir Ronald offered to vouch for the man for the time it took to walk back to the car. When she rudely asked who he was he replied simply and truthfully that he held the office of Governor-General (the incumbent was out of the country). There was no more talk of confiscation. That was the only occasion that I ever heard Sir Ronald ‘pull rank’.”

During his tenure Sir Ronald Davison oversaw major restructuring of the courts. This continued through Sir Thomas’ term and also during that of Dame Sian. The role of Chief Justice is pivotal to the functioning of our courts. The Ministry of Justice states its main responsibilities are acting as head of the Supreme Court, acting as Administrator of the Government in the absence or incapacity of the Governor General, liaising with the Government on policies or practices that impact upon judicial administration and the discharge of judicial responsibilities, speaking for the judiciary, and with administrative responsibilities for the Supreme Court and High Court (through the Chief High Court Judge). When ending his term as our first Chief Justice in 1857, Sir William Martin was one of four superior court judges who had been appointed. Today, with Dame Sian there are four other Supreme Court, 10 Court of Appeal and 46 High Court Judges and Associate Judges.

Chief Justices of New Zealand

Chief JusticeBornAgeAppointedResignedTenure
Sir William Martin Birmingham, England 34 10 Jan 1842 12 Jun 1857 15 years 5 months
Sir George Arney Salisbury, England 48 1 Mar 1858 31 Mar 1875 17 years
Sir James Prendergast London, England 49 1 Apr 1875 25 May 1899 24 years 1 month
Sir Robert Stout Lerwick, Scotland 54 22 Jun 1899 31 Jan 1926 26 years 6 months
Sir Charles Skerrett India 62 1 Feb 1926 13 Feb 1929 3 years
Sir Michael Myers Motueka 55 3 May 1929 7 Aug 1946* 16 years 3 months
Sir Humphrey O’Leary Redwoodtown, Marlborough 59 12 Aug 1946 16 Oct 1953 7 years 2 months
Sir Harold Barrowclough Masterton 59 17 Nov 1953 17 Jan 1966 13 years 2 months
Sir Richard Wild Blenheim 54 18 Jan 1966 20 Jan 1978 12 years
Sir Ronald Davison Kaponga 57 3 Feb 1978 4 Feb 1989 11 years
Sir Thomas Eichelbaum Königsberg, Germany 57 6 Feb 1989 17 May 1999 10 years 3 months
Dame Sian Elias London, England 50 17 May 1999   

*Extended by Act of Parliament.

Last updated on the 9th November 2018