Sir Ronald Davison died recently at his home in Auckland. He passed away as quietly as he had lived. It is well said the “the good men do is oft interred with their bones” and that has a special significance to the passing of Sir Ronald Davison, a man who had occupied the highest Judicial office the law has to offer but lived his life with a minimum of fuss and pomp. I have yet to see any tribute either on his retirement as Chief Justice or his death that makes any attempt to capture the significance of his contributions to the public weal both inside the law and in wider commercial and public affairs. It is therefore fitting that some attempt be made to chronical the contributions of such a distinguished servant of the public before he slips into an undeserved obscurity.
If there is one quality which to my observation of the man both inside the law and socially over some forty years it was his wry humility. Irrespective of the honours accorded him, and they were substantial, he always seemed to remember who he was, where he came from and what was his role in life. It is as if he lived his life according to Rudyard Kipling’s “If” the final verse of which readers will recall reads:
If you can talk with crowds and keep your virtue,
Or walk with Kings – nor lose the common touch,
If neither foes nor loving friends can hurt you,
If all men count with you, but none too much:
If you can fill the unforgiving minute
With sixty seconds’ worth of distance run,
Yours is the Earth and everything that’s in it,
And – which is more – you’ll be a Man, my son!
If nothing else, judged by these standards Sir Ronald was “a Man” for he never did lose the common touch which he no doubt acquired as a pupil at Te Kuiti District High School and during his war service first as a lieutenant in the army and later as a flying officer in The Royal New Zealand Air Force. As for walking with kings very few New Zealanders were so honoured by the Queen not only with Companion of The Order of St Michael and St. George (1975), but in 1978 made a Knight Grand Cross of The Most Excellent Order of The British Empire. The first of these orders is limited to 1750 members, the second to 300. What is more “all men did count with him.” His annual fly fishing outing in the wilds of Central Otago or Marlborough, or Turangi was in the company of; a shop keeper, a quantity surveyor, a medical academic and the writer. We all counted with him but none too much. No favours were asked or given other than on one occasion when an officious fisheries officer wanted to impound the fishing gear of the medical man because his licence was back in his car. Sir Ronald offered to vouch for the man for the time it took to walk back to the car. When she rudely asked who he was he replied simply and truthfully that he held the office of Governor General (the incumbent was out of the country) there was no more talk of confiscation. That was the only occasion when I ever heard Sir Ronald “pull rank.”
Aside from his contribution to the law and public service, about which more later Sir Ronald was, before his appointment to the Bench chairman or a director of a number of public companies including The New Zealand Insurance Company and the Auckland Electric Power Board, but it was as Chairman of Directors of Montana Wines Limited that he made a contribution of exceptional importance to the New Zealand economy. In the early 1970s Montana established plantings of Sauvignon Blanc vines in Marlborough. Because of the dry climate and lack of irrigation the plantings were a commercial failure and the company considered relocating the whole enterprise to The Hawkes Bay. A young employee responsible for the vineyard management pleaded with the Board to give it another go in Marlborough. Sir Ronald as Chairman agreed and carried the day. The second planting thrived and produced the unique Sauvignon flavours for which Marlborough is noted and was the beginning of some 20,000 hectares of vines now established in the Province .This now accounts for some 80% of New Zealand’s overseas wine sales with an export value in excess of one billion dollars. So in addition to running a busy legal practice as one of New Zealand’s senior silks and all the Law Society duties that entailed it is fair to say that Sir Ronald did: “fill the unforgiving minute with sixty seconds worth of distance run” and from that busy life he was appointed Chief Justice of New Zealand on the 3rd February 1978.
It is in that office he made his greatest, but largely unsung public contribution. Unsung because he did not seek publicity or succumb to the temptation to set the world to rights which more and more seems to afflict appointments to the senior judiciary around the common law world. Sir Ronald understood that the role of the judge although important is a humble one to be performed in accordance with the oath taken on appointment which requires all judges to “do right by all manner of persons without fear or favour affection or ill will.” “Right.” In a rule of law country such as we enjoy means to apply the law. What it does not mean is to grant judges a licence to apply such vague notions of “justice” which from time to time the judge may find attractive, or chiming with his or her social conscience. We call it judicial activism today and it is a blot on civil society around the common law world. Informed members of the public look askance at such decisions as the American Supreme Court in the recent case of Obergefel v Hodges which by a majority of 5 to 4 happily redefined the institution of marriage to apply to same sex couples not because the Constitution requires, or probably even allows it but because it is a trendy and popular thing to do. Here is what one commentator said of the decision
As the four dissenting opinions make abundantly clear, today’s ruling in Obergefell v. Hodges had nothing to do with the Constitution. This ruling is perhaps as clear an example of judicial activism as any we have seen in recent years – or are likely (hopefully) to see in the future. The majority of the Court simply replaced the people’s opinion about what marriage is with its own. Nothing in the Constitution supplies authority for this. The ruling will likely cause harm to the body politic: to constitutional democratic self-government, to marriage itself, to civil harmony, and to religious liberty.
As Chief Justice Roberts pointed out, highlighting the dangers of such trendy activism the arguments of the majority apply with equal force to the legalization of polygamy.
Similarly with the High Court of Australia inventing constitutional rights for the Aboriginal peoples of Australia which are to be found nowhere in the Federal Constitution; described by one Australian commentator James Allen recently as:
“Interpretative mumbo jumbo where words are alleged to change their meaning over time based on the interpreter’s mystical sense of changing social values and some claimed ability to put their finger on the pulse of the country’s vibe.”
Or closer to home judgments from our Supreme Court disregarding long established legal principles to fashion rights for Maori people to ownership of fresh water resources.
Sir Ronald would have none of this not only did he remain true to his roots but throughout his time on the bench and beyond he conscientiously observed his judicial oath to apply the law and to leave it to the representatives of the people; democratically elected to Parliament, possessed of information and sources denied to the judiciary to make such changes to the fabric of society as changing social circumstances require. He understood that judges are at best merely lawyers who have no popular mandate. Their job is to seek to understand the law applicable to the disputes which come before them (not always an easy task) and to apply it without fear or favour affection or ill will. He understood that in most cases judges are very ordinary and fallible human beings who do not on appointment to the bench acquire some hidden wisdom denied to other mere mortals. They have not, as a colleague of mine once observed “kissed the hem of the old man in the cave.” The value of a judges opinions about matters of political or social importance are worth no more than those of your car mechanic. Indeed he or she probably has a better grasp of such trends as they develop because such people live in the real world rather than the cloistered chambers of the Judiciary. The argument that because Judges Sit in observation on the passing parade of humanity they thereby acquire some unique social insight does not bear analysis, because the passing parade which the Judiciary are sentenced to observe is not the real world. It is made up largely of the misanthropes in criminal cases, and the cut throat world of those involved in business disputes in commercial cases. For the specialist Courts; Environment, Tax, Valuation etc. the position is even more rarefied because the judges are dealing with one basic statute occupying one small corner of social activity.
It would have occasioned great surprise to Sir Ronald that there was any way of doing the job other than to simply apply the law to the dispute. In this he was in the tradition (now largely extinct) of great “black letter” lawyers such as: Sir Alexander Turner, Sir Timothy Cleary, Sir Kenneth Gresson, and Sir Alfred North, (and his colleague, that other great unsung lawyer and Jurist the late Justice Peter Mahon QC) to name but a few. It was from these men whom Sir Ronald learned the practice of the law and it is that knowledge and experience he applied in his time on the Bench.
It would be tedious to recite cases which illustrate this fundamental point. They are now part of history and concern causes celebre which are no longer of much current public interest, but there are two which so aptly illustrate the distinction between Sir Ronald’s approach to the role of a Judge and that of the judicial reformer which bear mention. The first is the case of Finnegan v The Council of The New Zealand Rugby Football Union Inc. The case concerned a decision by the NZRFU in 1985 to accept an invitation to send a rugby team to South Africa. The plaintiffs sued the NZRFU claiming that the decision was unlawful on a number of grounds relating to the alleged breaches of the constitution and rules of the Union. The social background was that a powerful New Zealand sporting body was in the plaintiffs’ view being seen to support apartheid in South Africa. The opposing view of course was that sporting contacts with a mixed race team did much to undermine apartheid. The case before Sir Ronald was argued solely on the basis pleaded by the plaintiffs. Sir Ronald’s judgment striking out the plaintiffs’ claim as legally untenable is based on the law relating to the rights and powers of private associations to regulate their own affairs within the terms of their rules and constitution. A run of the mill rather hum drum affair having no wider social significance. The Court of Appeal reversed that decision and directed that the case be given a full hearing. Casey J. heard the claims on the merits and noted early in his judgment that
“the case was conducted against a background of national controversy over the question of sporting contacts with South Africa, and that the 1981 Springbock Tour of New Zealand was a disaster both for Rugby Football and the community.”
He said that the courts had:
“encountered numerous cases of otherwise perfectly respectable people at odds with the law for the first time and that a very substantial number-perhaps even approaching half of all New Zealanders are opposed or upset about this tour”.
The judge went on to opine that New Zealand’s international standing and trade relations would be affected if the Tour went ahead. From these lofty views the Judge decided that the Tour would not promote the game of rugby in New Zealand and would lead to a decline in school boy interest in the game (something denied by the headmaster of Auckland Grammar School in an affidavit before the court). The Judge granted an interim injunction stopping the NZRFU from sending the team to South Africa. The time for doing so had passed the Union did not appeal, and the Tour was cancelled.
Nothing could better illustrate the distinction between a Judge who simply applied the law to the facts as pleaded by the parties and one whose judgment was influenced by social considerations outside of the law. There can be no doubt that Casey J’s views on apartheid were sincerely held but the concerns expressed by him were at best speculative, had only the most tenuous connection with the case and were in part no more than information which came to him via the media as a member of the public some of which was actually controverted by the evidence before him. It is said that hard cases make bad law meaning that to apply notions of justice, individual or more broadly social (what used to be referred to as Justice determined by the length of The Lord Chancellors foot, or as dispensed by a Cadi sitting under a palm tree) in place of the strict application of the law will result in damage to the fabric of the law which will come back to haunt later Courts. Cooke J. (later Lord Cooke of Thorndon), himself a noted legal reformer was well aware of this and when the Finnegan case came before the Court of Appeal on a belated application for leave to appeal to the Privy Council. The Judge was at pains to point out that the decision of Casey J was unlikely to be regarded as a precedent in any later case and was unlikely to affect the law relating to the ability of a private body to regulate its affairs. How much better if the Court at first instance had simply applied the law as did Sir Ronald, and left the political question of how best to deal with injustices in another country to the legislature or whatever non-governmental organisations has the particular bee in its bonnet.
Very briefly the second example of Sir Ronald’s single minded understanding of his duty as a judge was the so called Wine Box enquiry which concerned allegations of tax evasion in The Cook Islands, and wrong doing by The Inland Revenue Department and The Serious Fraud Office affecting the integrity of the New Zealand tax base. The Governor General appointed Sir Ronald to conduct the enquiry after his retirement as Chief Justice. He was to answer two questions about whether either the Inland Revenue Depart and or the Serious Fraud Office had properly conducted their enquiries into the transactions the subject of the enquiry. The hearing dragged on for three years and was the darling of the media, and some politicians throughout that time. Reputations not only concerning the conduct of two large state institutions but also some of the largest financial corporates then trading in New Zealand were called into question. In addition large sums of money were at stake and the whole enquiry was conducted amidst a swirl of serious accusations which if proved could have criminal consequences to some of those involved. Because of the range and gravity of the issues the Commission was taken before the whole gamut of New Zealand Courts (High Court, Court of Appeal and The Privy Council) on a number of occasions. The gravity of the possibly outcome was such that on one occasion Sir Ronald’s house was burgled and his computer interfered with. Never the less he soldiered on and produced a report which was not the expose the media and some interested parties had hoped for. Instead he produced a comprehensive report which found that none of the allegations of fraud, private or public were proven and that there had been no income tax evasion. This produced a storm of complaint from a number of quarters; persons involved in the enquiry, the media and a number of tax lawyers. He was accused by one learned tax lawyer (who should have known better) of a whitewash, and of course in the nature of these sort of proceeding there was nobody to support Sir Ronald. His report had to stand for itself. It is all history now but the conduct of the hearings and the dignified way in which Sir Ronald bore the subsequent slings and arrows speaks volumes about the man. In fact in answering the question put to him he did what he had done throughout his time as a lawyer. He applied the law as he understood it to be. On the fraud issues he repeatedly asked those making the allegations of fraud to provide evidence capable meeting the high standard of proof which Courts must apply to such serious allegations. The evidence was never forthcoming to his vastly experienced satisfaction, and all questions of fraud therefore failed on the facts. On the issue of whether there was tax evasion Sir Ronald said of the schemes before him they were blatant tax avoidance which “cast little credit on the business ethics of the designers” but in the absence of fraud the schemes were not tax evasion which then as now was a criminal offence required to be proved beyond reasonable doubt, or if under the Tax Act he was satisfied that the affected parties had proved on the balance of probabilities that they were not engaged in tax evasion. In coming to these conclusions Sir Ronald simply applied what he took to be the relevant tax law as decided by our highest courts and that determined the outcome of the questions he was required to answer. Subsequent attempts to challenge his report got off to a bad start when another experienced Judge; Smellie J. dismissed as legally untenable an application to review Sir Ronald’s findings of law. The Court of Appeal later disagreed with Justice Smellie and directed a hearing of the claims that Sir Ronald had got an aspect of the tax law wrong. In doing so it was necessary to make new law which had not been available in New Zealand prior to that time. The High Court later found that Sir Ronald had got an aspect of the law wrong but nothing turned on the outcome. There is nothing exceptional in that. Many appeals from the findings of even distinguished judges are overturned on appeal, as witness the number of times our Court of Appeal was overturned in the Privy Council when we had the benefit of that body.
What this case does illustrate about the character of Sir Ronald is that even in a crucible such as this he quietly went about his job, ignoring the clamour of the media and interested parties and produced a report which answered the questions asked of him. He certainly didn’t deserve the opprobrium heaped on him at this late stage of his distinguished career in some cases by people who should have known better. To the contrary his conduct of this difficult affair aptly illustrates his dedication to the law as he understood it to be irrespective of social and political considerations, truly without fear or favour affection or will.
If the high standing of the Courts and the judiciary in the eyes of the public and respect for the law is to be maintained then it is to the example of Sir Ronald and those like him that we must return. He was a learned but modest servant of the law and not one of those who use and subvert the law for the more popular and flamboyant purpose of furthering their own political and social agendas. Requiescat in pace Sir Ronald.