Address by the Rt Hon Dame Sian Elias, GNZM
Chief Justice of New Zealand
On the Occasion of the Swearing-in of
The Honourable JUSTICE PHEROZE RUSTOM JAGOSE
At Wellington at 4 pm on Thursday 27 July 2017
Te whare e tu nei, e tu rangatira koe
E nga mate, haere atu ra.
E nga kanohi ora o ratou ma
Nau mai, haere mai ki tenei hui a Te Kooti Matua.
Tena koutou katoa.
Welcome to this special sitting of the High Court of New Zealand, Te Kooti Matua, the Elder Court.
I have acknowledged this historic courtroom and those who have passed through it. I greet you who have come to hear Justice Jagose take the oaths of office of a Judge of this Court. Like all business of the Court, the swearing-in of a new Judge is conducted in public and you who attend are an important part of this occasion. I want to welcome especially, the Judge’s mother, Anne, and sisters. All distinguished and strong women. We are honoured to have you here with us today.
We are also delighted to have with us retired Judges of this Court and the appeal
courts and retired and serving judges of the other benches of New Zealand, including the Employment Court where the Judge has had a substantial practice, as well as representatives of the Ministry of Justice whose hardworking staff support the work of the judges of this court so well.
As is the practice of the Court, before turning to the business in hand I will ask
the senior counsel present to make their appearances.
Your Honour, in my opening remarks I referred to those who have passed through this courtroom. It has served in this city for most of our history. Today for the first time since the High Court moved to Molesworth Street, it now has restored to it the portraits of the Chief Justices. Since the third Chief Justice, all of them have sat in this courtroom. They are a reminder of the stability of the institution that Your Honour joins. There is comfort in the tradition but the Judges of today also have the responsibility to live up to it and at times that
can be quite a weight.
The High Court was set up in 1842 to exercise all the jurisdiction of the Courts at
Westminster. Since 1908 however it has been explicitly acknowledged that the Court is a New Zealand court which has “all judicial jurisdiction which may be necessary to administer the laws of New Zealand.” Our law is ancient but it has to be applied in our country, with its own distinctive heritage and accent. The role of a Judge is to draw on this twin heritage in solving the issues of the present, while keeping a weather eye on directions so that the solutions of today are not a straitjacket for the future. Judging in this way is not a mechanical exercise. The jurisdiction exercised by the Judge of the High Court is not confined to statutory functions expressly conferred by legislation.
This is the Court where the common law and usages of New Zealand, which Judges are sworn to apply, are worked out in actual controversies. It is where the major criminal and civil first instance work is heard and where government and citizens can obtain determination of their rights and obligations according to law. It is the court of judicial review, the jurisdiction which assures the rule of law, one of the twin pillars of our constitution.
Although the appellate courts get disproportionate public attention, anyone who knows anything about our legal system knows that it is the first instance work that is key. If a Judge the High Court is deflected from doing what is right by timidity or fear or favour or by the siren song of popularity, wrongs can be done which cannot easily be undone, even by a vigilant appeal court.
We need to be careful of this jurisdiction. It has to be undertaken by men and women who are independent and imaginative but observe scrupulously the discipline of deciding cases within the framework of principle set by statutes and common law.
Judging has been described as thinking at its hardest. It is thinking that is laid bare for all to pick over and disagree with. There is nowhere to hide. Error is very public and no judge can hope to be right all the time. The Court of Appeal is always happy to point out error and to put you right. But that is welcomed by good judges. They know they have to decide cases under pressure and that second thoughts may often be better. They are grateful for the safety net
provided by appeal.
Some resilience is occasionally required. So the qualities of a good judge have to
include not only learning, imagination, and stamina, but also good humour and modesty. In dealing with people in all sorts of trouble and under all sorts of pressures, kindness and courtesy are indispensible.
That is why Your Honour’s appointment has been so warmly welcomed. We know you have these qualities in abundance. You have great learning in law and in some of its most difficult reaches. Your practice has covered commercial litigation, public law, competition law, employment law and many other areas. You have operated at the highest level and, if you had not delayed your departure from Chapman Tripp so long and had gone to the bar a few
months earlier, you would undoubtedly have been a Queen’s Counsel by now. I think it is an indication of your love of law that you would choose to take judicial appointment now rather than practice for a few years at the inner bar.
You have great humour and modesty. You are unfailingly courteous. You are an
extremely decent man, as everyone agrees. You are also very smart and very funny. When I asked one of your former partners for some words to describe you he mentioned erudition, wit, collegiality and the support of others. He also mentioned “grammatical perfection” which could be a bit intimidating to some of your new colleagues but which I am sure you will offer kindly. He also said you had also been memorably described by Geoff Shirtcliffe as “direct; author of “faux translations” and as “a large scary-looking man who can reliably be
called to reception to persuade the occasional uninvited and disruptive visitor to depart”. Well, most of that is very encouraging indeed. A bit of directness will
save you from the sort of padded judgments that some of us get marked down for.
While I would not myself have described you as “scary-looking”, I can see that someone with your experience of getting rid of uninvited and disruptive visitors could be quite useful for us. But I was a bit flummoxed by “faux translations”. Mr Hodder kindly explained and the illustration he gave is very funny indeed. But Mr Hodder and I have both agreed it is not something to be shared on this
Your Honour, I am delighted to welcome you to the Court. I know you will have great satisfaction in the work you will do here and that you will add to the strength and the collegiality of the bench. Your colleagues and I also wish you much happiness in this step.
Address of the Attorney-General
Christopher Finlayson QC
May it please the Court:
It is an honour to appear today as Attorney-General to witness the swearing in of Your Honour, Justice Pheroze Jagose, as a Judge of the High Court. On behalf of the Government I am pleased to congratulate you and your family on this significant achievement and convey best wishes for your judicial career ahead.
On appointment to judicial office, your Honour has accepted a serious responsibility. The functions of a Judge are often conducted in the full glare of the public spotlight. Everyone has an opinion on the decisions you make and the system in which you operate. It is also a public service which both shapes and confirms our community values. The rule of law, as interpreted and applied by you, guarantees the rights of every individual in our society.
From what I know of and have heard of your Honour’s career to date, I have no doubt that you will apply yourself with great diligence to this new challenge before you. You have a formidable reputation as a trusted advisor and loyal advocate. You are known for your precision and clear judgement. These qualities and your Honour’s impressive career in litigation stand you in
good stead to become a distinguished member of the judiciary.
Following graduation in 1987, your Honour commenced your legal career with
the Northern Local Government Officers’ Union. In 1989, you completed a Masters in International Relations at the University of Lancaster, furthering an interest in diverse claims to cultural and political recognition in the law. You then returned to practice, continuing at the NZ Air Line Pilots’ Association. In 1995 you joined the Wellington team at Chapman Tripp, working alongside Justice Forrie Miller and Jack Hodder QC and others on a range of commercial litigation. You became a partner in 2000, and spent altogether 21 loyal years with Chapman Tripp. Since 2016, you have worked out of Thorndon Chambers as a barrister sole.
In cases traversing a wide spectrum of commercial law, you have scrupulously
represented a range of clients, and have demonstrated your ability to master any issue. Your Honour has become a specialist in the law of competition and trade practice, company and securities, employment, and public and administrative law.
Your Honour has appeared at all levels of the New Zealand legal system,
from administrative tribunals, to the Court of Appeal and Supreme Court. You have most recently appeared in two significant employment law appellate cases, representing Affco New Zealand Ltd, and New Zealand Aluminium Smelters Ltd respectively. You have successfully defended Telecom in a Commerce Commission prosecution up to Supreme Court level. You have
established significant appellate-level precedent, including on limitation periods, company law and discovery.
Career highlights include representing a mining contractor in various fora arising out of the Pike River mine disaster, and defending Canterbury against the NZRFU’s attempts to monopolise the association of the colour “black” with the All Blacks. This varied experience has prepared your Honour well for the Bench.
Beyond litigation, your Honour has made a notable contribution to the profession more generally. You are a skilful writer and widely published. You have an admirable curiosity for legal developments generally. Many in the legal profession have most recently enjoyed your guest editorials in the Capital Letter. You took a leading role in management of the practice during your
time at Chapman Tripp. Amongst those more junior than you, you are known for your kind mentorship and loyal support. Together with former Justice Terence Arnold your Honour designed and supervised the New Zealand Law Society entry level civil litigation skills course. Outside of the law, you find time to maintain an interest in art, architecture and sailing.
Your Honour is known and respected for your integrity, diligence and thoroughness. As a result, you will and should expect no less from those who find themselves in your courtroom. I have been told that counsel in Wellington are pleased knowing you will sit in Auckland so they are less likely to face your meticulous preparation and focus. However, in your Honour they will also find a Judge who is decent and courteous, as much as one that is thoroughly-prepared and thoughtful. Certainly that has been the experience of those who have had the opportunity to work with you.
As I have often said, judicial office is a form of public service that is vital to the
effective functioning of our society and to the rule of law. It is demanding to its holders, but also richly rewarding. The level of commitment your Honour has shown to your clients; your colleagues; and to the profession has given the government every confidence that you will meet the demands of office with the same integrity and dedication that you have shown throughout your career.
Once again your Honour, on behalf of the Government, I congratulate you on
your appointment to the Bench and wish you all the very best for your future.
Address for the NZLS
David Goddard QC
May it please your Honour.
It is my very great pleasure to convey the warm wishes and congratulations of the New Zealand Law Society and the profession. The President, Kathryn Beck, would have been here but for a commitment in Auckland. Vice-president, Nerissa Barber, and the President of the Wellington Branch, David Dunbar, are present as well as a strong turnout from your former colleagues at Chapman Tripp, your recent colleagues at Thorndon Chambers, and many colleagues and friends from the local bar and from further afield. I am sure they all wish to join with me in these words of congratulation and best wishes.
This is the next step in your already distinguished career in the law.
As the Attorney General has said, you began your legal career in Auckland. You moved to Wellington and joined Chapman Trip in the mid-1990s, which is when I first had the pleasure of being your colleague. You were admitted to the Chapman Tripp partnership in 2000, shortly after I left the firm to join Thorndon Chambers. And in 2016 you moved 10 or so floors down Maritime Tower to practise as a barrister, also at Thorndon Chambers.
I cannot overstate what a pleasure it has been having you in our chambers. Your intellectual curiosity, your passion for the law, your wide reading, your fondness for technology and your – often mischievous – sense of humour have enriched our chambers enormously. Your new colleagues on the bench are fortunate to have you in their common room, and we will miss your company very much. I will also miss – though I hope I might still receive from time to time – your emails attaching the latest speech by Lord Neuberger, or an article from an online magazine that has caught your eye … or an art auction catalogue to tempt me to some new folly.
One of those emails attached a helpful diagram – in glorious technicolour – aligning percentage prospects of success in litigation with qualitative descriptions of the party’s case – from “remote” (10% to 20%) all the way to “certain” (80% to 90%). There was a 10% allowance at each end of the spectrum for what you euphemistically described as a “judicial discount”. It occurs to me that this diagram could be repurposed, with the addition of a suitable pointer, to provide a helpful indicator to counsel of how their argument is being received by Your Honour.
With the benefit of hindsight, we should have put you in a different room in chambers. You passed – all too briefly – through the room previously occupied by Justice Palmer, whose time with us was also curtailed by departure to the bench. It will be interesting to see who occupies that room next, and how long they last.
In addition to your contribution to your former firm, and to our chambers, you have made a very significant contribution to the organised profession. You have published extensively. You have been very generous with your time and energy in presenting seminars, developing courses, and training young lawyers.
As well as presenting NZLS seminars and writing on issues including The
Criminalisation Of Commercial Law, and Civil Procedure and Documentary Evidence, one of the lasting contributions you have made to the profession was in developing, with Sir Terence Arnold, the materials for the Introduction to High Court Civil Litigation course. These materials formed the basis for training courses which have been running for the past 20 years, at which you and others have educated hundreds of lawyers – many of whom are likely to be appearing before you in the coming years. As they say, what goes round, comes round!
Your publishing endeavours have taken on a contemporary flavour with your twitter feed, which focuses on appellate decisions in NZ, and in other common law jurisdictions. It is quite a feat to summarise these in 140 characters. I look forward to similarly concise judgments of your own.
Your Honour, your intellect, your love of the law, your clear, elegant and concise writing style, added to the breadth of your professional experience, all augur well for your time on the bench. The profession congratulates you on your appointment and we look forward to watching the next stage in your stellar career.
May it please Your Honour.
Address for the NZBA
Jack Hodder QC
On behalf of the New Zealand Bar Association, it is my privilege and pleasure to add the Association’s congratulations on your appointment as a Judge of this Court and in wishing you well in your judicial career.
Given what the previous speakers have covered, and that your own remarks are much awaited, I should perhaps sit down now. But as an experienced advocate, you will recognise the addiction of audience. So there is a little more …
I suspect that not only you and I recognise a sliver of irony in my representing the Bar Association on this occasion. If not irony, perhaps a metaphysical contradiction. The NZBA is an excellent organisation but for most of its life and much of our practising careers (until recently) we were outside the club. We were not barristers sole but operated in a law firm. We consoled ourselves in Marxist rhetoric (I speak of the Marx with the moustache – Groucho): “I
don’t care to belong to any club that would have me as a member”. But times change.
An association is also a union. As is plain, you have more experience of unions than most lawyers. That thought naturally led me to the other Marx (the one with the beard – Karl) and The Communist Manifesto challenge: “The proletarians have nothing to lose but their chains … working men of all countries unite”. (There are other and gender-neutral translations – but the response is still work in progress.)
But times change. Indeed, our last collaboration as counsel (with you in the lead role, and me blotting out a short career as a mutton chain delegate) was an as yet undetermined excursion before the Supremes in opposition to the Meatworkers’ Union. That appearance as counsel was the last of
at least 152 appearances beginning in May 1989. (For that list, I rely on the industry and infallibility of Chapman Tripp’s librarian, Louise Martin.)
And it was in a 1994 encounter in the Employment Tribunal, with you as counsel for a Mr Brunton, a member of the Airline Pilots Association, that your skills – not least your masterly use of language – sufficiently impressed your opponent, counsel for the Airways Corporation, to suggest that you think about a change – a stint in a large law firm. I recall that you looked a little shocked by my suggestion. But you did think about it – for quite some time – before getting back to me and beginning the Chapman Tripp chapter of your career.
At Chapman Tripp, you worked with Terence Arnold and Forrie Miller. Then, when they had been lured away to public service, we began a close association – together with Helen McQueen (and the commercial gurus – Mark O’Regan and Helen Bowie) – on the waves of telecommunications litigation in which our client, Telecom New Zealand, was troubled by a succession of plaintiffs, Including Clear Communications and the Commerce Commission. But now is
not the time to praise the efficient component pricing rule or the judicial wisdom displayed at all levels in the 0867 litigation.
Times change. The telecommunications battlefields more or less settled down with the re-regulation of the 2000s. With you having become a litigation partner, your practice broadened across a very wide range of cases and areas of the law. From stockyards to naval ship designs; from radio towers to coal mine disasters; from sports apparel to paediatric surgeons. You were able to fully enjoy one of the great privileges of advocacy in a small country – largely avoiding specialisation.
I must not be taken to be speculating on the politics of the judiciary, but suspect you might turn to Stephen Sedley in the pages of the London Review of Books before Jonathan Sumption in The Spectator. In any event, on specialisation, we may not be alone in agreeing with Sumption, in his Foreword to The Jurisprudence of Lord Hoffman, that “most specialisations are bogus, and all of them are enemies of coherence”.
Be that as it may, you have demonstrated a passion for litigation and the law. I expect that you will recall a line or two from Sam Keen’s 1991 book, Fire in the belly:
I am also one of the work-driven men. And I am lucky to have work that fits skintight over my spirit.
I did say “passion” and not “obsession”. You have a healthy balancing appreciation of the rest that life has to offer. But your passion and craft have impressed your colleagues and clients. Perhaps more importantly, they have inspired the many younger lawyers you have worked with and
whose affection and respect you enjoy.
I will refrain from any further specifics from your career as an advocate. But there is one other achievement which must be mentioned. For a few weeks last year you became the sixth person in almost 40 years to sit in the editor’s chair for The Capital Letter, while Penny Pepperell took some leave. The volume of “law” our beloved country produces each week is staggering, and the weekly deadline is brutal. But you managed it all with skill and efficiency and – at least on the surface – an impression of calm.
My passing references to the two Marxist philosophers, the London Review Books and such like should not be misunderstood as indicating that yours is an unorthodox appointment. To the contrary, I am confident that those you know you now, and those who come to know you in your new role, will appreciate that it is truly an orthodox appointment of a senior and accomplished litigator.
Among other things, that inevitably means that your patience and stamina has been tested in many contentious matters – large and small: in tribunals, in trials and in the appellate courts. From the vantage point of much time shared in the trenches of litigation, I and our colleagues (and our opponents) have admired the consistency of your integrity, intelligence, energy, resilience, articulateness and good humour – and your patience and courtesy.
These qualities are by no means exhaustive. However, they provide the solid foundation for our confidence that you will have a very successful and enjoyable transition from poacher to gamekeeper. In this most recent change, you have the very best wishes of the New Zealand Bar Association, and its membership – not least your colleagues in Thorndon Chambers.