The past month has seen two outstanding men leave us – both, coincidentally, aged 89. Their accomplishments have been prominently recounted in the media and so this is not the place to write obituaries. But in different ways, they were each influential in my sporting and professional endeavours and I would like to pay a personal tribute to each of them. I did this previously in the case of George Barton QC, Don Dugdale and Richard Craddock QC (14 September 2011) and David Barnes (World Champion and America’s Cup sailor (2 November 2020). I feel privileged to have known and been influenced, one way or another, by all of them.
Sir Ian Barker
My first acquaintance with Ian was at the Auckland Law School when, as a part-time lecturer, he taught us Civil Procedure in the final year of the Law degree. Notwithstanding their quality, his were not the most popular lectures but that was because they were held at 8 a.m. On one occasion, I became popular myself with the class because I fainted early on in one lecture and that brought it to an end. At that time, I used to run to and from University each day, which may or may not have been the cause on that occasion.
As is well known, Ian made his mark as a barrister at the Privy Council in Jeffs v. New Zealand Dairy Board [1967] NZLR 1057, in which he successfully argued that the Dairy Board had breached the rules of natural justice when coming to a milk supply zoning decision. That led in time to his being appointed as a Queen’s Counsel followed very soon afterwards at a young age by appointment to the High Court.
His first major case as a Judge was one which determined the rights and liabilities of different classes of creditors and debtors of the merchant bank Securitibank Limited, which was put into provisional liquidation in 1976. The hearing of that case took place over a period of 4 months and he gave his Judgment (which occupies 115 pages of the New Zealand Law Reports) a mere 7 weeks later: Re Securitbank Ltd [1978] 1 NZLR 97. There followed other Securitbank-related litigation which he case-managed and heard. It can rightly be said that he was the pioneer of case management and major commercial litigation in New Zealand. Unsurprisingly, that led to his appointment as the first Commercial List Judge when that List was established and he managed that List for many years providing the High Court with some degree of relevance to a commercial community which hitherto had been sceptical that the Court was a forum equipped to deal with commercial disputes.
I appeared as counsel in Securitbank and then again in Ian’s last major cases as a Judge, Shell (Petroleum Mining) Co. Ltd. v. Kapuni Gas Contracts Ltd. (1997) 7 TCLR 463, a case which concerned the continued operation of a long-term gas supply contract, both as a matter of contract law and under the Commerce Act. Alan Galbraith QC also shared with me participation as counsel in both cases, albeit on different sides. This time the major part of the hearing took 5 months and the Judgment (shared by a lay member in respect of the Commerce Act claims) took effectively 3 months to deliver and occupied 97 pages of the law reports.
One aspect of the Kapuni Judgment that attracted attention at the time were Ian’s trenchant criticisms of some of the extensive and esoteric economic – and in particular econometric (described in the Judgment as “arcane”) – evidence led by the parties and in the case of one party persisted with at the hearing despite a ruling that the platform on which it was based was flawed. Specific comment was made of the number of academic economists called by the parties, all of whom were from the United States. As it was put in the Judgment: “Without wishing to appear chauvinistic, we hope that there can be found economic experts of sufficient standing and experience in this country, able to give expert evidence about economic issues in New Zealand.”
As one of those responsible for retaining one American economist (and having done so in earlier competition law cases), I would defend myself by pointing out that we were still in the early forensic period of the Commerce Act 1986 which had adopted US antitrust principles (via the Australian Trade Practices Act) and there was in New Zealand (and to a lesser extent in Australia) a dearth of experienced economists who had working knowledge of those principles. Recent cases in New Zealand have certainly seen greater use of New Zealand economists though the number remains small.
It should not be thought that Ian was, as he put it, chauvinistic when it came to accepting the evidence of American economists which he found relevant and helpful. He did this some years earlier, a few years after the Commerce Act was enacted, in Fisher & Paykel Ltd. v. Commerce Commission [1990] 2 NZLR 731 in which exclusive dealing arrangements between Fisher & Paykel and its retailers were found to provide efficiency benefits and to be pro-competitive rather than anti-competitive. The Judgment records that strong criticism was made of the evidence of the US economic experts who we retained on behalf of Fisher & Paykel (Professors Klein and Baxter) on the grounds that it was said to be based on the Chicago School of economic theory (which still attracts criticism today). The Court however held that it derived assistance from the evidence of Klein and Baxter and US legal thinking as recorded in US Judgments (including that of Justice Posner, a prime exponent of the Chicago School). Ian did not shirk from doing what he thought correct and said: “If [adopting] this view earns for us the appellation of ‘Chicago School’, then so be it.”
Even earlier than Fisher & Paykel, Ian had in 1987 in ARA v. Mutual Rental Cars [1987] 2 NZLR 647 shown a readiness to turn to US case law in the antitrust area, pointing to Australian decisions which had taken account of US cases under the Sherman Act, which provided much of the foundation of the Australian Act in 1976 and subsequently the Commerce Act in New Zealand in 1986. In considering the monopoly position that the Auckland Regional Authority as the owner of Auckland Airport held in relation to its power to license rental car companies to be based at the airport, he had no hesitation in adopting US case law that examined whether that position could rightly be considered as a ‘bottleneck facility” or an “essential facility” through which firms wishing to compete in a market must pass.
None of this is easy stuff and Ian’s previous experience was unlikely to have given him relevant expertise in the competition law area in particular. However, he was, in my respectful view, successful in rolling up his sleeves and not hesitating to look for assistance in the form of expert evidence or unfamiliar foreign case law to help him get to the right decision.
Finally, when considering his judicial career as a whole, I think mention needs to be made of the fact that, although in the very top echelon of New Zealand’s High Court Judges and as such would undoubtedly have been offered appointment to the Court of Appeal, he chose (whether for family reasons or otherwise I know not) to remain as a Judge of the Auckland High Court until his retirement. I do not believe that there has been any Judge who has (certainly in recent decades) served that Court longer or with greater distinction.
Sir Murray Halberg
My acquaintance with Murray Halberg came through his world-famous coach, Arthur Lydiard, who worked for his brother who owned a shoe manufacturing company close to my home and where my mother also worked part-time. I was then a keen schoolboy middle distance runner whose running career had however been seriously interrupted in the fourth form by an accident that had crushed my right ankle and which took the best part of 2 years to recover from. From that point and having met Arthur, I would frequently call in to see him on my way home from school and he willingly devised training programmes for me. His basic theory was that it was necessary to embark on lengthy conditioning in the form of 100 miles of relatively slow running a week. In the summer, when preparing for track racing, this would be followed by 6 weeks of hill running and then a 12 week track training programme but throughout including a 22 mile Sunday run, usually from his home in Mt Roskill around the famed Waiatarua-Scenic Drive course.
During that period, Arthur talked to me a lot about his stable of top runners, headed by Halberg and Peter Snell but including also runners such as Barry Magee (bronze medal winner in the Rome Olympics marathon), Bill Baillie, Jeff Julian and Ray Puckett (all Olympic runners). As regards Snell (who was then an inexperienced 800 metres runner who only just scraped into the New Zealand team for the Rome Olympics), Arthur said that he didn’t know whether Peter would make the final but if he did he would win. That was a view based on the Lydiard marathon training that he put all his middle distance runners on and on the fact that in the 800 metres there were 2 rounds of heats and a semifinal and then the final, all scheduled to take place within a 4 day period. History shows that he was right, that Snell did almost miss out in the semi-final through poor tactics but then won the final. On that same afternoon, Halberg won the gold medal in the 5000 metres in one of the gutsiest runs of all time sprinting out to a lead with 3 laps to go and then holding on to the finish ahead of runners with a faster finishing kick.
Following Rome and Halberg’s gold medal in the 5000 metres, I did get to know Murray and was fortunate to be invited by him to do the Waiatarua run from his house every Sunday with a small group (which included Peter Brook, also with me a University runner, and later crew on a World Champion 18 foot skiff and now a fellow member of our yoga class). A cup of tea was provided after each of these grueling runs by Murray’s lovely wife Phyllis. I also travelled with Murray and took part in a 3 mile race at Wanganui’s Cook Gardens where Snell was later to break the World 1 mile record at 3 minutes 54.1 second. Murray had previously been the first New Zealander to break the 4 minute barrier and had competed in the Commonwealth Games Mile at Vancouver in 1954 where Roger Bannister, the first man to break the barrier at 3 minutes 59.4, defeated John Landy who a short while later had reduced that time to 3 minutes 58.
On another occasion, at Western Springs in Auckland, Halberg attempted the World 3 miles record, which he narrowly missed that night. Second in the race was the Australian Dave Power who later won a bronze medal in the Olympic 10,000 metres. Halberg lapped the field (apart from Power) towards the end of the race. I was in that field and finished 3 rd , ahead of the bunch, but to this day I recall the NZ Herald report of the race, describing Halberg’s lapping of the field as being like “gazelle through buffalo”! As is well known, he ran with one withered arm tucked up under his collar bone, the result of a teenage rugby accident but his running style was certainly smooth.
After he finished his competitive running days, Murray and Phyliss owned and ran a furnishings shop in Dominion Road and they supplied the curtains for my first house. He also established the Halberg Foundation to help disabled children and from that grew the annual Halberg Sports Awards, known now simply as “The Halbergs”. A truly great man, who I was privileged to know, to learn from and be inspired by.
Jim Farmer
6 December 2022