The Barker Observations: Judges I have Known

The Barker Observations: Judges I have Known 2
The Barker Observations: Judges I have Known 3

Legal luminary and identity Sir Ian Barker has provided some colourful and insightful discussion on some of New Zealand’s leading legal identities from his time as a law clerk and from his early years in practice.

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He notes that Supreme Court (as it then was) judges in the ’50s and ’60s were few in number and “rather remote figures” compared to today’s echelon of around 25 High Court judges.

Among the notable memories are some acute observations –

Sir Humphrey O’Leary – “pleasant and congenial”

Sir Humphrey O’Leary was apparently a pleasant and congenial man who had been a good advocate and President of the New Zealand Law Society. He was close to the Labour Party which appointed him as Chief Justice over the establishment candidate, Sir Wilfred Sim, who had National Party affiliations.

As an aside: my only experience of Sir Wilfred was when I was in the old Wellington Court library preparing to argue my first major appeal in the Court of Appeal the following day. I had committed the gross breach of Wellington protocol by sitting in Sir Wilfred’s place. I had been unaware of this very Wellington custom of reserving seats for VIP members of the profession without any indication to ignorant Jafas of the pre-emption. Sir Wilfred was not particularly gracious, unlike TP Cleary who was courtesy and understanding personified when I unintentionally pinched his space in the library.

Barraclough CJ – “shop steward for his judges”

Barrowclough CJ’s appointment was not received kindly by the profession. It was said that Sidney Holland, the then Prime Minister (arguably one of the worst of that category in my lifetime) appointed Barrowclough to reward him for his service as a general during the war.

He was not noted as a good advocate nor as a particularly astute lawyer. He was often overturned on appeal but was said to be a good leader of and shop-steward for his judges and a reasonable administrator

Sir George FInlay – “User unfriendly”

 Finlay J was said to have been decidedly user-unfriendly on the bench – particularly to younger or inexperienced counsel. The only time I witnessed this style in those neophyte days was to hear him rebuke a not-so-accomplished counsel for putting up what the judge thought was a spurious defence. He had practised in Te Kuiti in his younger days, specialising in Māori land law.

Sir George could be a bit theatrical, as on the occasion when he swore-in Trevor Henry as a judge in 1954.

Unlike as in all the very many swearings-in which I have attended (including my own in 1976), the new judge took his oaths of office not from the bench but whilst standing at counsel’s table in counsel’s robes and wig. The court then adjourned and returned for the customary welcoming speeches with the new judge as one of its members. I have often thought that Finlay J got it right and that his procedure was more logical in that the new judge did not assume the judgment seat nor don the judicial bling until he/she had been sworn-in.

Sir Alexander Turner – “no ticket on himself”

Turner J had an extremely sharp and agile mind. What distinguished him from a few others of high intelligence was that he had no tickets on himself. His career at the bar had seen him undertake a variety of cases including criminal defence work – such as the famous George Horry case where a murderer was convicted without any evidence of the corpse of the deceased ever being located.

He was also academically inclined and his editing and reinvention of Spencer Bower and Turner on Estoppel was one of this country’s best-ever legal works, acclaimed throughout the common law world.

On his retirement, Sir Alex became Butterworth’s principal editor and recruiter of textbook authors. He masterminded the Fourth New Zealand Edition of Halsbury. It was almost impossible for someone whom he targeted as an author – either of a text or of a Halsbury topic – to refuse his job offer, given Sir Alex’s encyclopaedic knowledge of the law, his fame as a judge and an engaging manner. You instinctively felt flattered that he had chosen you of all people for what was to be an epic contribution to a particular field of law.

Sir Alfred North – “war stories”

He became a formidable advocate there. With a crippled leg and an adenoidal and easily imitable voice, he did not suffer fools gladly either at the bar or on the bench. I got to know him in mellower mode in the years following my appointment to the bench because he happened to live down the road from me.

He was always keen to hear the latest legal and judicial gossip and would often summon me to partake of a large gin and tonic. Fortunately, I didn’t need to drive to his house. His war stories were always interesting, and his quick perceptive mind stayed with him to the end. He died suddenly in 1981.

Source: LawTalk

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