Justice Priestley retires

12 December 2013
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By Aditya Basrur

Justice John Priestley, who retires this year after 13 years as a judge of the High Court in Auckland, has been at the forefront of the legal profession in New Zealand during a period of remarkable growth and dramatic change. As his Honour explained in a conversation reflecting on his career, that change has both affected and in part been driven by the Auckland law school, from which he graduated in 1967.

The seeds of his legal career were sown during a visit to the cinema when Justice Priestley was 12, to see Witness for the Prosecution. The future judge was mesmerised by robed counsel, cross-examination, and the characters’ use of language, deciding that it might be a good idea to see what was necessary to become a lawyer. The decision to pursue a legal career was made easier by the reality that lures many high school students to the law today, namely that an aptitude for English or the Humanities (rather than the Sciences or Maths) does not leave one with many options. So, passing up the charms of his father’s dental surgery and foregoing a career as a school teacher, Priestley enrolled in a B.A. (in History) and an LL.B. at the University of Auckland in 1962.

The law school was then based at Pembroke, the two story building bordered on two sides by Albert Park, where the faculty and the library were based. Lectures took place either in the clock tower or in the now demolished lower lecture theatre. Bucking the convention of the time (which was to enrol as a part-time student at the law school and work as a law clerk at a law firm in the city during the day), he registered as a full-time student in both degrees for the first three years of his course. After an interview with the late Sir John Wallace, he clerked during the final two years of his law degree (1965-66), at Wallace McLean Bawden & Partners (now part of Kensington Swan). There, he was exposed to a variety of conveyancing, corporate law, and general filing work with a view to commencing practice as a solicitor. “In those days, everyone was a generalist,” he notes.

Fate initially pushed him down a more academic path. In 1967, Dean Jack Northey (who had taught Priestley Constitutional and Administrative Law in a “deep rumbling voice” and pioneered use of the case book technique and Socratic Method at the law school) inaugurated the law school’s Honours programme. Along with Ian Ross, Gary Craig, and Alan Galbraith QC, Justice Priestley was invited to become one of the law school’s first LL.B (Hons) students. The requirements – three seminar courses, followed by a longer dissertation – seemed incompatible with the demands of virtually full-time practice, so his Honour returned to academic life, initially as tutor and then as junior lecturer. A career-long interest in family law was ignited during work on a dissertation on matrimonial desertion, supervised by Professor P. B. A. Sim. Among other awards and achievements, he won the Stout Shield for mooting in 1966 and in 1967, was an inaugural editor of the Auckland University Law Review (along with Galbraith).

People with whom Justice Priestley shared his time at the law school include a virtual honour roll of those who have shaped the modern New Zealand profession. Retired Court of Appeal judge and current president of the United Nations Special Tribunal for Lebanon Sir David Baragwanath and Jim Farmer QC graduated a short time before he did, while the Rt. Hon. Dame Sian Elias, the current Chief Justice, finished shortly afterwards. Direct contemporaries included former Supreme Court judge Sir Noel Anderson (who, in response to a question from Bernard Brown in a 1962 legal history class, had the class in splits when he told them that the “Wapentake” – an Anglo-Saxon hundred, or governance unit - was synonymous with “robbery with violence”), former Dean of the Law School and current Court of Appeal judge and President of the Law Commission Sir Grant Hammond, Queen’s Counsel David A. R. Williams and Galbraith, former Attorney-General and Deputy Prime Minister and current Permanent Representative to the United Nations Jim McLay, and former Prime Minister David Lange.

Professor John Prebble of Victoria University and Justice Priestley were often confused for each other at law school, as they shared the same initials (JP). (Their divergent career paths – Professor Prebble’s post-graduate work at Oxford and Cornell and distinguished academic career and Justice Priestley’s time at Cambridge, the University of Virginia, and in practice – have since put paid to any such confusion.) Priestley also served on a Law Students’ Association committee with Sir Anand Satyanand. During one meeting at an office downtown, the members found an advertisement for luxury cars for sale in Hamilton and decided that it would be a good idea to telephone the dealer to make enquiries about inspecting and purchasing the cars. “Satch” was tasked with making the phone call, which the future Governor General duly did with mock grave authority. Peals of laughter ensued from his fellow committee members. Reflecting more seriously on his classmates’ distinguished career trajectories, Justice Priestley says that he is “very humbled and honoured” to have been at law school when he was.

His colleagues hold him in equally high esteem. Sir David Baragwanath regards Justice Priestley as “a classic common lawyer” with “a profound understanding of the human condition”, blessed with “acute intelligence, sound judgment and the gift of lucid expression”. Jim McLay, his mooting partner, considered him a “law school star” with whom he has enjoyed a “long friendship in the law”. Their friendship has been helped by the fact that it is “not difficult to like John Priestley” given his “warm personality” and “wicked sense of humour”.

Justice Priestley has happy memories of professors at the law school, too. As is inevitable with Auckland law graduates from that era, Northey looms largest. His Honour describes him as “a total control freak” and “an iconic dean” – someone who, along with Professors Keith Sinclair (History) and Bob Chapman (Political Science) “ran the university”. He appreciates the fact that he was “very well taught”, reserving particular gratitude for George Hinde (who inculcated a lifelong interest in land law and equity), Brian Coote (contract law), Bernard Brown (as engaging and humorous a teacher of criminal law in the 1960s as he is now), and Don Dugdale (commercial law). He also remembers a young Sir Ian Barker teaching Civil Procedure. While his teachers kept his interest in law alive, History retained its allure. At the conclusion of his Honours degree, Justice Priestley went to the University of Cambridge to pursue further studies in the subject. The decision to go to England was eased by the University Grants Committee when – at Northey’s persuasion – it agreed to defer the post-graduate scholarship in law which Justice Priestley had been awarded. Following Cambridge, his Honour took up the scholarship at the University of Virginia’s law school, where he wrote a doctorate on matrimonial property.

On returning to New Zealand in the early 1970s, Justice Priestley joined Holmden Horrocks, then an 8-partner firm; he became partner in 1975. About 50% of his work focused on family law, children, and matrimonial property, with the remainder devoted to opinions, vendor-purchaser work, and general common law matters. This focus of his practice at Holmden Horrocks led to an even greater interest in family law. Seeing the need for issues in the area to be addressed by the Law Society in more focused fashion than the Social Welfare Committee which then existed could accomplish, his Honour was a driving force in the creation of the Family Law Committee and ultimately the Family Law Section of the New Zealand Law Society; he was Chair of the Section for a time. In 1982, he left Holmden Horrocks to go to the independent bar. “In Southern Cross Chambers we saw [Priestley’s] determination to protect those needing the law’s assistance in what was then seen as an unfashionable area of family law”, Sir David remembers. “His notable part in its transformation was rightly recognised by the grant of silk,” in 1994.

From the late 1980s on, Justice Priestley was appointed to various statutory bodies in a part-time capacity, including as a member of the Film Censorship Board of Review, the Deportation Review Tribunal (as inaugural Chair), and the Refugee Status Appeals Authority (as deputy chair). Other highlights of his time in practice included his Honour’s successful involvement, with the late Paul Temm, in election petition cases in Hunua in 1978 (which led to Winston Peters’ initial entry into Parliament) and Taupo in 1981 (leading to an increase in the National Party’s majority). In November 2000, Justice Priestley was appointed to the bench. On his appointment, Attorney General Margaret Wilson – who graduated from the law school two years behind Priestley and who he had once met at an inebriated law students’ association dinner at which they discovered a shared fondness for Shelley’s poetry – wryly noted his Honour’s earlier involvement representing “the other side”.

The elevation was “something of a surprise” to the judge, as “family law was never regarded as a route to fame and fortune”. (Jim McLay, who as Minister of Justice in 1979-80 had established the family courts, disagrees, commenting that he was “not at all surprised when Priestley was appointed”.) His Honour credits the generalist nature of his early legal training and “the firm building blocks laid down at the Law School” as invaluable preparation for his time on the bench. Also helpful was the degree of detachment from their clients’ predicaments required of all successful family lawyers. “I never had a problem with this and have never lain awake in bed at night agonising over a case. I think that skill of detachment has been helpful to me as a Judge, particularly with criminal trials where Judge and jury are frequently exposed to gruesome details and horrific conduct.” Baragwanath (his High Court colleague for seven years) remarks that “having the courage to do what is right made [Priestley] a first rate criminal judge, prepared to innovate to avoid injustice. In the High Court and frequent sittings in the Court of Appeal his acute intelligence, sound judgment and gift of lucid expression made for prompt, succinct and perceptive judgments admired by those of us who were his companions.” Priestley “proved to be a very good judge”, McLay adds, and was “exceptional in criminal law jury trials” despite not having practiced in that area. The “balance” which his Honour demonstrated was perhaps a reflection of his experience in matrimonial law which “equipped one very well” for criminal work, in McLay’s view. “There is not very much which one does not see in practice as a family lawyer.”

Priestley has retained academic interests throughout his time in practice, giving him a helpful perspective on the effects that changes to legal education have had on the profession. In the early period following his return to New Zealand, he taught courses on Banking Law and Bills of Exchange, moving in the late 1970s and early 1980s to teaching advocacy and courtroom ethics. More recently, he has lectured on family law at Auckland and Otago. In 2006 he assisted with the foundation of the Auckland University Law Review Advisory Board, of which he continues to be a member. In this capacity, as well as many others, Justice Priestley’s involvement with the law school will hopefully continue for many years yet.

Since his time at the university, the biggest change in the profession that Justice Priestley has observed is structural. In part, this has been driven by law schools’ evolution from part-time professional training schools to full-time academic institutions. In the 1960s and early 1970s, there had been a tension between “town and gown”. The profession, or “town”, had wanted part-time courses (ensuring a steady supply of law clerks) while the university – and particularly Jack Northey – saw greater merit in a full-time curriculum. Northey won. His Honour emphasises the importance of the law school retaining ties with both the profession and the bench in light of this change and has appreciated the efforts by both Professor Rishworth and Dr Stockley, during their tenures as Dean, to involve the judiciary in the life of the law school through invitations to guest lectures and events. The growth in law school enrolments has also had consequences. In the late 1960s, the graduating class size at the Auckland law school was about 40 and the university’s total enrolment around 6,000, obviating the need for an intermediate (or “Legal System”) year. Larger class sizes have, however, meant that the best students from Auckland are now more academically rigorous than in the 1960s, a fact underscored by the high quality of Justice Priestley’s clerks at the High Court (and his suggestion that there are many competent lawyers from the 1960s who may not have gained admission to the law school today).

As to broader professional trends, larger class sizes make seeking employment more difficult. When his Honour graduated, leaving Auckland for work was a choice – one made by Gary Craig (the first person to be made a law firm partner from Priestley’s law school class, practising in Papakura at Rice Craig), and Sir Grant Hammond (who moved to Hamilton) – rather than a necessity. Priestley points out that the profusion of larger firms has made family law (with its generally smaller fees) uneconomic for most law firms; much of the field is now served by the independent bar. There are also many more women in the profession now – Justice Judith Potter, two years his senior at law school, was one of only two or three in her class – and more female than male law graduates each year.

With retirement, the study of History beckons again. Personal projects that are likely to occupy Justice Priestley’s time include, perhaps, writing a biography of one of his ancestors and reading more Latin. The law – and particularly family law – are not too far from his thoughts, however, and he would like to involve himself with an “organisation with a focus on children and families”.

The breadth and depth of John Priestley’s contributions to academia, the profession, and the judiciary – and, in Sir David’s words, “the warmth of his own humanity, as husband, father, colleague and friend” – mean that his time is certain to be in great demand.