Led by Chief Justice Dame Helen Winkelmann, tributes are flowing in for former High Court judge Sir Ian Barker KC who died last Friday at the age of 88. “Sir Ian was an outstanding judge and a true leader,” the chief justice said. “His distinguished career in the law spanned 60 years of service to the law, to the judiciary – both here and in the Pacific – and to our society. His passing is a loss that will be widely felt.
“On behalf of the New Zealand judiciary, I acknowledge Sir Ian’s service and extend my deepest sympathy to his family.” Similarly, Maria Dew KC, President of the New Zealand Bar Association, described Sir Ian as a wonderful mentor to herself and others. “We are all feeling saddened by Sir Ian’s loss, and he will be deeply missed,” she said.
“He contributed to many organisations over the years, the NZBA included. At Bankside Chambers, he was kaumatua to all. He rarely spoke about his own accomplishments and instead focused his interests on others and the world outside the law – travelling, writing and engaging to the end. His warm smile will be missed.”
In an interview with LawNews two years ago, Sir Ian spoke of his early days in the law and his first job, with TJ (Tommy) Doole, whose “ghastly” City Chambers were located at the corner of Auckland’s Queen and Wellesley Streets, on the site of the old Auckland jail. Sir Ian said he hated the building. In 1949, then Prime Minister Sid Holland (“one of the least distinguished prime ministers we’ve ever had”) had reintroduced capital punishment and the jail had been the site of hangings. Sir Ian went to university in 1952, enrolling for a BA. But he didn’t want to teach and didn’t think he was equipped for medical school so eventually decided to sign up for law as well.
Lawyering back then was dominated by conveyancing and the profession was far more collegial “and not as cut-throat” as it is today. Everything was done manually, and law clerks met each other at the Land Transfer Office and at court registries when filing documents. He learnt conveyancing “almost by osmosis”, Sir Ian said. “If you thought you could do it, they probably let you and that’s the way I met lots of people in the profession.”
There were no large law firms in the fifties and sixties. Most had fewer than eight partners. It was easy for clerks and lawyers to find a job and while the pay “wasn’t great”, there was a reasonable anticipation of partnership within a few years. Sir Ian’s starting pay was £4 a week. At the time, he said, the Auckland legal profession was dominated by “elderly, idiosyncratic sole practitioners living in rent-controlled buildings” who had kept the profession going after WW2.
There was little specialisation. Most lawyers were conveyancers or, in pre-ACC days, did personal injury claims. “There were no sports lawyers or RMA lawyers or immigration lawyers and there certainly weren’t environmental lawyers.” However, conveyancers had to deal with a piece of legislation – the Town and Country Planning Act 1953 – that almost rivalled the Resource Management Act in terms of its complexity and opacity, Sir Ian said.
He graduated with a BA/LLB and was admitted in 1958. Of the 23 students finishing university that year, only one was a woman. From Tommy Doole’s chambers, where he’d acquired a lot of experience in the Magistrates’ Court, Sir Ian moved to Morpeth Gould (now Morrison Kent) where one of his first cases – and his first criminal matter – involved three men charged with being “rogues and vagabonds” in a case that eventually made its way into the law reports.
The following year, Sir Ian did his first murder trial where he was junior to Martyn Finlay, who later became President of the Labour Party and Attorney-General and Minister of Justice in the governments of Norman Kirk and Bill Rowling respectively.
His big break came in 1966 where he successfully represented businessman Jim Jeffs at the Privy Council in a stoush with the New Zealand Dairy Board. To keep costs down, Sir Ian did a deal with his friend Paul (later Justice) Temm who was appearing before the Privy Council at the same time to argue Frazer v Walker (which became the eading case around the Torrens system of land registration). “Over a drink, we agreed to combine forces, with me leading him in Jeffs and him leading me in Frazer v Walker,” Sir Ian wrote later in an article for the New Zealand Law Society. “It happened that their Lordships found this swapping of senior counsel role odd and queried it at the start of the hearing for the second appeal. We were able to advise their Lordships that we had both been admitted as barristers on the same day in February 1958. That explanation seemed to satisfy the judges.”
Jeffs went on to found the ill-fated conglomerate JBL which collapsed in 1972, leaving thousands of out-of-pocket investors and a mess that took receiver Doug Hazard 25 years to clean up. Jeffs and his brother Vaughan were prosecuted; Jim Jeffs was sentenced to nine months’ jail while Vaughan was fined.
“Things were always exciting with the Jeffs,” Sir Ian told LawNews. He left Morpeth Gould for the bar in 1969, became a QC in 1973 and was appointed to the High Court bench in 1976, at the age of 42. He quickly made a name for himself as an astute commercial judge, with a talent for dealing with complex and detailed matters. One such case was the 10-yearlong Securitibank litigation (Re Securitibank Ltd No 2 ). The biggest corporate collapse in New Zealand history at the time, Securitibank went bust in December 1976, owing between $30 million and $50m to investors and other creditors.
Sir Ian, along with Sir John Henry, also founded the fast-track Commercial List in the High Court at Auckland. Spawned by the fallout from the 1987 sharemarket crash, the list was the brainchild of the two judges and then Justice Minister Sir Geoffrey Palmer. It was designed to fast-track the interlocutories – “making them all happen at once”, as Sir Ian put it – at the point where most of the delay in traditional civil litigation takes place.
In 1997, at the age of 62, Sir Ian quit the bench. The mandatory retirement age for judges at the time was 72 but he’d had enough. “There was a new Arbitration Act and it seemed like a good opportunity,” he said. Mediation was also coming into its own. Sir Ian said he’d been at a judges’ conference in Auckland around 1994 and one of the speakers, a mediator from Australia, was keen to share what was happening across the ditch. “A lot of the judges and lawyers weren’t impressed,” Sir Ian said. “They thought it was a fad.”
He suspected they were wrong. And while he didn’t do many mediations, Sir Ian carved out an impressive international reputation as an arbitrator, retiring from this work only in 2019. Along the way, he was a founder of Bankside Chambers in Auckland in 2001 and was the longest-serving chancellor of the University of Auckland. After his retirement from the New Zealand bench in 1997, Sir Ian sat on several Pacific courts, including Courts of Appeal in Fiji, Samoa, Vanuatu, Pitcairn and Kiribati.
One of his most high-profile cases was in 2001 when he sat on the court that decided the legitimacy of George Speight’s coup in Fiji. It was “pretty tense”, Sir Ian said. “We all stayed in the Travelodge and had to be driven across the road to the court. There were armed guards on the roof of the hotel and sleeping on the same floor as the judges.”
Asked about the secret to his success, Sir Ian said: “I guess one of my advantages in the law is that I’ve got a good memory. Whatever success I’ve achieved, it’s partly due to that.”