When I was at the New South Wales Bar, I was struck by the number of senior Queen’s Counsel in active practice who had clearly chosen not to accept appointment to the Bench. I recalled a comment some years earlier by an English Law Lord who had said that it was the duty of Senior Counsel to perform the public service of taking Judicial Office if approached to do so. Much later though I read that the great Australian Chief Justice, Sir Owen Dixon, while acknowledging the vitally important constitutional role performed by Judges, had also said that the role of the Bar and of the independent Bar in particular was greater.
The Bar has indeed followed a tradition of supporting Judges when they are unfairly attacked, whether by the media (increasingly) or politicians (less so of late). The introduction of a ‘transparent’, formal, judicial complaints process has done little to preserve respect for, and fairness to, Judges and it is now open season for disappointed litigants and malcontents to attack the Judges and to expose them to a public process that can all to easily lead to public humiliation and damage irrespective of the merits of the complaint.
On the other side of the equation, however, it should be noted that there are (fortunately) rare occasions where Judges have misused their very considerable judicial power by showing some intemperance towards counsel who, through inexperience do not always feel able to defend themselves. The formal niceties of the court room – “May it please Your Honour”, “with respect”, “my learned friend”, etc. – are there for a reason. The system of oral argument and the adversarial nature of trials only works effectively if there is mutual respect and restraint by both Bench and Bar. Anything short of that means that the necessary formality of judicial dispute resolution quickly dissolves into a degrading spectacle with the attendant danger of the Judge “descending into the arena and allowing the dust of the conflict to cloud his eyes”, to refer to a famous dictum.
It is in this area, among others, where senior barristers are able to stand up to inappropriate judicial behaviour in the same way that Judges are entitled to respond firmly to inappropriate behaviour by a lawyer in the courtroom.
I recall, when I was at the New South Wales Bar, witnessing an outstanding example of the Senior Bar making it plain to a Judge who had overstepped the mark by threatening to use his contempt powers against two junior barristers who, in the Judge’s view, may have been party to a breach of an undertaking (a serious matter, if established, but not in the particular case based on any evidence of substance). On the return date of a direction from the Judge (who was newly appointed) that the barristers concerned should return in a week’s time to “show cause” why they should not be committed for contempt, the Judge found, when he came into Court, four of the most senior barristers from the New South Wales Bar seated at the Bar table representing the junior barristers. One of them, the late Roddy Meagher, co-author of the famous book on Equity and later a Judge of the New South Wales Court of Appeal himself, rose to his feet and said: “I understand that Your Honour wishes to hear about the law of contempt. I am here to instruct you.....” Then followed an exhaustive account of the history and principles of the law of contempt, all witnessed by 20-30 bewigged barristers sitting in the courtroom. The outcome was never in doubt.
During the course of 2011, the New Zealand Bar has lost 3 of its most senior and distinguished barristers: Richard Craddock QC, George Barton QC and Donald Dugdale, a fact which was commented on by the Attorney-General, Chris Finlayson, when leading a minute's silence at a recent New Zealand Bar Association Conference.
All 3 of them at different times in their careers exhibited, in different ways and with differing styles, the same independence and willingness to stand up to Judges on those – I repeat, rare – occasions when it was warranted. They were able to do so, not just because they became “senior” with the passage of time but also because their practice of law showed such great ability and distinction that it demanded respect.
This is not intended to be an obituary for them but I would like to be able to say something very brief about my experience of each.
Richard Craddock was a man of considerable style who took his cases seriously and fought tigerishly for his clients. However, he maintained a healthy objective view of the Law and of the legal system and did not fall into the trap of believing that he had been brought into this world to become a servant of the Law. He lived a very full life and was an accomplished sailor, pilot and mountain climber, among many other attributes. He did not pursue formal Honours or titles and he did not believe that his legal career was somehow deficient or lacking because he did not take judicial office.
I was in many cases in which he appeared as counsel, beginning with the Securitibank litigation in 1978 when he cross-examined the former managing director of Securitibank before Justice Barker with great skill and exposed the arrogance and nonsense of the Securitibank funding systems as developed by that man. He was counsel in the Wine Box Commission of Enquiry presided over by Sir Ronald Davison and was remembered thereafter for his famous tightrope walk when he responded to the Commissioner’s attempt to have him accept the Commission’s jurisdiction over his client (a Cook Islands company): “We are here, Sir, for some purposes but not for others”.
It would not be putting it too highly to say that Richard was feared by many of his opponents but feared for the right reasons – his ability and discipline that he brought to bear to litigation. I had the privilege to act as counsel for him, together with Miriam Dean, when an application was made to remove him as counsel from a case on the grounds of an alleged conflict. He was a hard task master and on one occasion after meeting with him in Chambers to discuss the forthcoming hearing he said to us (politely) that the case required more “intellectual rigour”. Miriam and I (wrongly thinking perhaps that postgraduate degrees from Harvard and Cambridge respectively do not warrant such a charge) were, it must be confessed, somewhat taken aback!
George Barton made his name initially as an academic lawyer. With a doctorate from Cambridge he quickly rose to become a Professor of Law at Victoria University in Wellington. He did however have the distinction also of combining that with practice as a barrister and was in considerable demand, especially in banco work. He loved nothing more than a good will interpretation or equity argument though as an academic he taught public international law as well as legal history and civil procedure.
When I was myself teaching law at Cambridge University, George spent a sabbatical leave there and we in fact lunched and dined together regularly. He was always delightful company and clearly enjoyed life and was truly “learned in the law”. He enjoyed discussing the personal foibles of those Judges who displayed them on the Bench. As a young lawyer then, I think that I learned from him that respect needs to be earned by individuals and not automatically accorded by virtue of the holding of office.
George eventually left the University and went to the Bar full time. He had been refused Silk while still teaching, something which he (rightly) felt was unjust and it was some time after he had stopped teaching before he was prevailed on to become a QC. Trial work was not his forte though he did undertake a very lengthy, largely fact-based, hearing in relation to what is now the ANZ Centre building in Auckland. He shone as an appellate counsel and his knowledge of the law stood him in good stead there.
Although often regarded as being a conventional and traditional lawyer, George in fact was innovative and not afraid to push the boundaries of the law and to ensure that constitutional principle was upheld. Most notable were the claims that he led in Parsons v. Burk [1971] NZLR 244 and Fitzgerald v. Muldoon [1976] 2 NZLR 615. In the first of these, he sought the issue of the little known (in modern times) writ of ne exeat regno, in order to prevent the All Blacks team of that year leaving New Zealand to tour South Africa. The application failed but he was successful in the second case in which a declaration was sought to declare unlawful an announcement made by the newly elected Prime Minister Muldoon that the current statutory superannuation scheme would be abolished and that in the meantime contributions should not be enforced by the Superannuation Board. Wild CJ accepted George's submissions that a Parliamentary law can be amended or suspended only by Parliament, citing in support no less an authority than Dicey's Law of the Constitution.
Don Dugdale spent most of his career at Kensington Haynes and White, which is today Kensington Swan. Even after the independent bar developed to become the dominant source of counsel appearing in court, he maintained his position as one of the pre-eminent counsel in New Zealand.
My first meeting with him was as a law student at Auckland University. He taught Commercial Law part-time at 8 o’clock in the morning. He began his first lecture for the year by telling us that he was a part-time lecturer. He continued: “The difference between a part-time and a full-time lecturer is that when I finish this lecture, I will go down town and work at an office – whereas, no one is quite sure what a full-time lecturer does.”
Later as a young full-time lecturer myself, I had the great fortune to serve with him on the Contracts and Commercial Law Reform Committee, chaired by the late Colin Paterson who was to become Chairman of the Securities Commission. This was the Committee that formulated and was responsible for the reports that led to New Zealand’s unique set of contract statutes. Don had also written the leading (in fact the only) text on hire purchase law in New Zealand.
Subsequently, he appeared also in the Securitibank litigation (as had Richard Craddock, as noted above). That was at a time when the practice was just beginning of providing Judges with written outlines of argument and with photocopies of law reports. When it was Don’s turn to present his submissions, Justice Ian Barker interrupted to say: “Mr Dugdale, where is your outline and your copies of cases?” Don paused, sniffed loudly and replied: “Your Honour, I don’t believe in this practice of pandering to Judges”. Justice Barker laughed!
Don had a distrust of Judges who did not follow precedent but who endeavoured to bend either the law or the facts to their own personal idiosyncratic view of the case. He wrote an article in the New Zealand Law Journal complaining of what he called “the funny inside feeling school of Jurisprudence”. More recently, he wrote in the Victoria University Law Review vigorously criticising the Judgments and writing of a particular High Court Judge who had eschewed precedent, no matter whether formally bound by it or not, if it offended the Judge’s view of “the community’s basic concepts of justice and fairness”.
Don's view, clearly, was that Judges should develop the law incrementally and leave law reform to law reformers and to Parliament, who were better equipped to effect radical changes to the law than a Judge who, no matter how uniquely gifted and perceptive he might believe himself to be, is necessarily constrained by the factual and evidential constraints of particular cases. It was natural therefore that, following his earlier work on the Contracts and Commercial Law Reform Committee that I have referred to above, in the later years of his career he should spend several years as a Law Commissioner.
We are the poorer for the passing of these three. Not only were they truly pre-eminent in the legal system but, in their different ways, they stood out as individuals in a profession that often seeks to suppress individuality.