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Penlington, Hon Justice; Williams, Chief Judge --- "Judicial Speeches" [2000] WkoLawRw 8; (2000) 8 Waikato Law Review 153

JUDICIAL SPEECHES

SPEECH FOR ADMISSIONS CEREMONY

BY THE HONOURABLE JUSTICE PENLINGTON[*]

For those of you who have just been admitted, Friday 8 September 2000 will be a very special day.

It will be a day that will stand alongside such important days in your life as the birth of a child, a wedding day, or the death of a loved one.

For on this day, each of you who has been admitted has changed your status. Before this ceremony you were a law clerk or a law student; or perhaps you had a degree or qualification in another discipline. Now, as the result of the solemn commitment which each of you has made, and the order which I have just pronounced, you have become a barrister and solicitor of the High Court of New Zealand, and an officer of this Court.

Now, as the result of this simple but important ceremony, you have the right of audience in any court in our legal system; a right and a privilege which sets you apart from your fellow citizens who have not been so admitted.

At this time, you are entitled to pause on the journey of life, to stand proud, and to derive satisfaction from your achievement in gaining admission to the Bar. For your admission represents the culmination of many years of dedicated study and sacrifice; many years of hard work, punctuated at times with anxiety and anguish. But that is over. You have now reached your goal. You are now entitled to savour this pleasurable moment in your life as you embark on a professional career in the law.

On behalf of all the judges, I warmly congratulate each of you. I welcome you to the fraternity of the law.

Not only is this a memorable day for you who have been admitted, but it is also a memorable day for others. Let us not forget those loved ones – your wife, your husband, your partner, your parents, your siblings, your whanau, your wider family, your friends – who, during the long and arduous years of toil and study, have lovingly and loyally helped and supported you, who have given you strength and sometimes the wherewithal to carry on. They too, each and every one of them, deserve your gratitude and your appreciation. On your behalf, I publicly thank them. Without their love, loyalty, help and support, and the many sacrifices which they have made, you would not be standing where you are today. They too are entitled to share in the pride, the joy and the satisfaction of this special day.

And then there is another group: the Law Faculty at the University of Waikato. I am certain that you would want me to acknowledge a special debt of gratitude to the members of the Faculty for the part which they have played in your achievement; and more latterly to the members of the Institute of Professional Legal Studies.

These good persons have taught you, have helped and encouraged you, and have examined you – obviously to the mutual satisfaction of both sides. On your behalf, I thank them one and all.

And it is especially pleasing once again to be able to welcome to this ceremony the Dean, Professor David Gendall, and members of the faculty. I also welcome the Legal Director of the Institute for Legal Professional Studies, Michael Robb.

I am particularly pleased as well to see once again, and welcome, Professor Margaret Bedggood, who led the faculty with distinction for a time as Dean.

I record an apology from the Attorney General, The Honourable Margaret Wilson, the founding Dean. Parliamentary duties have precluded her from being present. But for those duties, she would have very much liked to have been here.

I welcome, too, the leaders of the practising profession in Hamilton. I ask the newly admitted members of the Bar to note that here today we have three Queen’s Counsel – Mr Alan Hassall, Mr David Wilson, and Mr Paul Heath – and the President of the Waikato Bay of Plenty District Law Society, Mr Philip Morgan. On your behalf, and on behalf of the Court, I would like to thank those senior members of the Bar, and you Mr President, for taking the time and the trouble to appear today. I am personally most grateful for your presence.

The appearance of the leaders of the profession is a tangible sign to you, the new members of the profession, of the welcome which awaits you, and the importance which the organised profession, the Law Society, attaches to every new practitioner who comes into the profession.

You come into this great profession in challenging and changing times. The rapidity of change in our community is often frightening. The law is no exception. Three recent landmark cases demonstrate the vitality of the common law; its adherence to fundamental principle; and yet its preparedness to change to meet modern conditions and to embrace public perceptions of what is fair and just in our society.

First, there is Lewis v Wilson & Horton Ltd.[1] This was the now infamous case about the American billionaire who came into New Zealand with some cannabis. He was discharged under section 19 of the Criminal Justice Act 1985. That is the equivalent of an acquittal; and he had his name suppressed until a Full Court of this Court and then the Court of Appeal, on a challenge by the New Zealand Herald, strongly reaffirmed the fundamental principle of open justice. In delivering the judgment of the Court of Appeal, our Chief Justice, Dame Sian Elias, said:

The principle of open justice serves a wider purpose than the interests represented in the particular case. It is critical to the maint‘nŠnce of public confidence in the system of justice.[2]

Thus, in Lewis, that fundamental principle of fair and open justice – justice not only being done but being seen to be done - was reaffirmed in loud and clear terms.

The second case is Lange v Atkinson.[3] The plaintiff was a former Prime Minister and the defendants were a magazine publisher and its political commentator. The latter pleaded the defence of qualified privilege on the basis of “political expression”. The case was litigated to the Privy Council and back to the Court of Appeal. The case is a classical example of the Court’s striving to achieve a balance between freedom of expression and protection of reputation; two cherished, fundamental and long-standing principles of our modern society.

The third case is Arthur J S Hall & Co v Simons.[4] In it, the House of Lords ruled that the present day circumstances of modern litigation and court practice no longer justified barristerial immunity. As a result of their Lordships’ decision, there must inevitably be a move towards a greater accountability by members of the practising profession in the discharge of their professional duties in court.

Whether we are part of the profession or not, we can gain strength from these three cases, for they show that the courts, the judges, and the practising profession are each playing their part in seeing that the rule of law continues as one of the central pillars of our free and democratic society.

And now to your future as you enter the profession in these exciting and challenging times at the beginning of a new millennium. I urge you to keep four points firmly in mind:

- First, let your goal always be the pursuit of excellence and professionalism. I urge you to be true to your oath or affirmation.

- Secondly, remember the twin duties – the duty to the court, the duty to the client.

- Thirdly, remember that as an officer of the court you have both exclusive privileges and heavy responsibilities. Do not abuse those privileges. Always discharge those responsibilities. At all times duty must prevail over self-interest. At all times, there must be the clear stamp of honesty and integrity.

- Fourthly, remember that the practice of the law is more than a mere business; it is a profession, a learned profession which is based on service to your fellow citizens.

As you go forth to your new calling, I wish you good luck. There will be much hard work, many joys, many disappointments. I believe that you will derive immense personal satisfaction from the practice of the law. I believe that you will not regret your choice of vocation.

And may I conclude on a personal note. This is the last Admissions Ceremony over which I shall preside as a permanent judge of the High Court, and as a resident judge here in this city of Hamilton. For me too, this will be a memorable day.

Today’s ceremony brings back many memories. I remember my own admission on 24 February 1956. Only a handful of us – nine practitioners in all – admitted individually in the Judge’s Chambers in the elegant old Supreme Court building in Christchurch, which alas has been replaced by a modern – dare I say, functional - building that does not have the grace and charm of its predecessor. I envy each of you having your admission in open court and in the presence of all who are close and dear to you. The photograph of my admission day has always hung proudly in my office, and more latterly in my Judge’s Chambers. That milestone was marked afterwards by one dry sherry, shouted by our respective moving counsel in the Edwardian grandeur of the old Clarendon Hotel in Christchurch, and then back to work.

I have greatly enjoyed presiding over Admission Ceremonies here in Hamilton since the first admissions by the former Chief Justice, the Right Honourable Sir Thomas Eichelbaum, on 20 May 1994.

Over the years, almost without exception, the candidates presenting themselves for admission have been products of the Law Faculty of the University of Waikato. To Margaret Wilson, Margaret Bedggood and David Gendall, and to all the members of the Faculty over the years, I pay a special tribute. The Law School nearly foundered; but by the strength, courage, perseverance and foresight of the whole Faculty, it survived. It is now well and truly established. Its students are now in the front rank. They are now taking positions in some of the most prestigious New Zealand law firms. The standard of legal scholarship is of a high order. This is a great credit to the Faculty.

I especially mention the mooting. This has become a triumph for those who have given their time to it, and in particular I mention David Wilson QC and Joan Forret.

For the future, I wish the Faculty well. There are some poetic MŠori words which are apt: tukua kia kohure kia tamaota kia kauru-o-rangi. A liberal translation is simply this. The Law School can be likened to a great kauri. It is straight and strong. It will stand tall. It will spread its canopy. It will nurture new growth. It will grow forever.

It has been an honour and a privilege to preside today.

ADDRESS TO GRADUANDS

BY CHIEF JUDGE J V WILLIAMS[*]

The Chancellor, Faculty, distinguished guests, graduands and families: T‘nŠ koutou katoa.

It is a rare honour indeed to be invited to address you here today at this the seventh graduation of the Waikato Law School. The seventh wave is always the biggest and the best. I don’t know if you are the biggest, but I am sure you are the best.

You are graduands from a law school which (I suspect uniquely among the Law Schools) has three founding principles:

− biculturalism – the importance of the MŠori dimension to New Zealand and to law;

− law in context – the idea that law is not value free, but is a product of our times whether judge or legislature-made;

− professionalism – the idea that law is a calling and that the highest standards must be maintained.

I see now that 30 percent of you are MŠori, a third of you are mature students returning from the work force, and two-thirds of you are women. These numbers are a stunning testament to the great work of this ground-breaking law school and I offer my congratulations to the University, to the Dean and staff of the Law School and most of all to you the graduands. The seventh wave truly is the best.

Now you must go out and earn a living. That is often a daunting task. To take the marine metaphor a little too far no doubt, you will often feel (in these early years) like a piece of driftwood getting washed around in a heavy swell. Don’t worry, that feeling will remain until you retire.

As the structure of your degree implies, not all of you will go into legal practice. Some of you will work in the public sector, some in commerce and management, some in sport, and no doubt some as distinguished academics. Those of you who go into legal practice will practise in the many and increasingly specialised areas of law: commercial transactions, securities, banking, property, environmental, civil litigation, MŠori issues, public, criminal, family, youth, and the list goes on.

The professional world which you are about to enter appears to value information but lack wisdom. It is global and yet troublingly insular in its values and priorities. It is seduced by complexity and afraid of simplicity. Into this world you carry your lawyer’s box of skills. Wherever you end up, the legal method, which is the backbone of your training, will stand you in good stead. The ability to cut quickly to the real issues; the ability to sort the relevant from the irrelevant; the instinct to think first and talk or write only after you’ve finished thinking: these traits are basic to your training. The more information-overloaded complex and global our world becomes, the more valuable those skills will be.

There will be plenty for you to do. Even as early as 1864, Sir John Gorst wrote:

Every country has some staple manufacture, and there can be no question that laws are the staple manufacture of New Zealand.[5]

In short, you are almost certainly assured of a meal ticket.

I do not wish to underplay the importance of that simple fact, particularly since, in this modern age of user pays, you have paid through the nose for it.

But there is more to life than that. It is, after all, the year 2000 and more than ever we confront the finite nature of our presence here on this planet and of the gaping chasm between those that have and those that have not. It is your duty as a lawyer to strive not just for yourself. You must strive for a just self. You must lead good lives and you must believe in something.

You, who have been fed a steady and healthy diet of biculturalism, law and context and professionalism, must see law not just as a living but as a calling. You are better equipped than any generation before you for the task.

Take the race issue for example. Those of you who are MŠori are now used to asserting your identity positively in the law without being arrogant and “in your face” - for that approach makes people defensive and unyielding. Those of you who are Tauiwi have learnt to accept that MŠori context without feeling threatened by it, and without the tendency to cringe, which was often seen in generations before you. For all of you, your training at this law school has made that possible.

Issues of race, racial difference and race conflict are litmus issues for our country. These are issues upon which generations of lawyers and New Zealanders have gagged. We have found the dish impossible to swallow. For you, MŠori, Pakeha, Pacific Islanders, Asians, graduates of this law school, the free interchange of ideas between the races is normal. This is not easy, never easy, but normal.

To borrow a phrase from another political movement altogether: you are the harbingers of a third way. This is a new path between MŠori anger and Tauiwi defensiveness; a bridge between mana MŠori on the one hand and a Pakeha sense of rightful place on the other.

And what I have just postulated about MŠori/Tauiwi relations applies equally in other areas where law meets context.

As a result, in addressing you here today I am filled with hope and optimism for our collective future as lawyers and as New Zealanders.

Kaua mŠ tutuki waewae

engari mŠ upoko pakaru.

Give your goals every ounce of your strength

And if in the end you fall short

Don’t let it be because you tripped over your own feet.

Let it be because the forces ranged against you

Busted your head.

Congratulations to you the graduands; and good luck.

T‘nŠ koutou katoa.

[*] Judge of the High Court of New Zealand, Hamilton. This speech was delivered by Penlington J on the occasion of the last admissions ceremony over which he presided prior to his retirement. The School of Law, University of Waikato, records the appreciation of its staff and students for the valuable support which Penlington J has given to the School.

[1] Unreported, Court of Appeal, CA 131/00, 29 August 2000.

[2] At para 79, p 28.

[3] [1997] 2 NZLR 22 (HC); [1998] 3 NZLR 424 (CA); [2000] 1 NZLR 257 (PC); and [2000] NZCA 95; [2000] 3 NZLR 385 (CA).

[4] [2000] UKHL 38; [2000] 3 WLR 543; [2000] 3 All ER 673.

[*] Chief Judge, MŠori Land Court.. This address was delivered at the graduation ceremony of the School of Law, University of Waikato, Hamilton, on 18 April 2000.

[5] Gorst, Sir John Eldon, The MŠori King, or, The Story of our Quarrel with the Natives of New Zealand (1864) 134.