The Hon. Sir Ian Barker KC
Sir Richard Ian Barker KC (17 March 1934 – 11 November 2022)
*Barbara Relph
It is with great sadness that the legal profession farewells Sir Ian Barker KC, Honorary member of the NZBA | Ngā Ahorangi Motuhake o te Ture and a man with deep connections to many within the profession.
Following his childhood in 1930s Taumarunui, Sir Ian undertook the study of law because, in his words, he was “too clumsy to be a medical practitioner, not mechanically inclined for engineering … and [he] did not want to be a teacher”. Entering the profession in the 1950s, Sir Ian began in general practice with Thomas Doole, gaining knowledge he claimed was useful later in his career, such as the mechanics of conveyancing which helped him when he was confronted with land cases (including the seminal indefeasibility of title case, Fraser v Walker[1]). Thanks to what he described as a “maverick insurance client”,[2] Sir Ian also spent a great deal of time in the Magistrates court, where he acquired witness-handling and cross-examination skills.
Sir Ian was admitted to the bar in 1958 without fanfare. Back then, he said, admission was simply a matter of turning up in chambers, where the oath was administered, and then you went back to work. There were no gowns or wigs, no open court with family watching on or other ceremonial trappings. His call to the inner bar in 1973 fared slightly better, but only marginally – he was the only candidate and there were only two judges, but at least it was held in open court.
Following his admission, Sir Ian joined Morpeth Gould in Auckland, where he quickly became a partner practicing mainly personal injury, family protection and property disputes. While he did not practise criminal law, he did junior in a murder case in 1969. Lead counsel was Martyn Finlay QC (former Labour politician and Attorney-General), described by Sir Ian as a very good criminal lawyer. Unfortunately, their client was convicted and sentenced to death. While the death penalty was repealed before the sentence could be carried out, Sir Ian described this experience as “slightly creepy”.
In the mid 1960’s Sir Ian had the opportunity to appear with Paul Temm (as he was) before the Privy Council in two cases, argued one week after the other. Sitting in Downing Street at the time, the Privy Council comprised some of the most famous names in jurisprudence: Viscount Dilhorne, Lord Denning, Lord Hodson (who slept some of the time), Lord Wilberforce (whom Sir Ian described as the brightest Judge he ever appeared before), and Sir Garfield Barwick, the Chief Justice of Australia. Viscount Dilhorne was intrigued by the fact that while Temm led in Fraser v Walker, a week earlier Sir Ian had led in Jeffs v New Zealand Dairy Production & Marketing Board[3]. It turned out that both Temm and Sir Ian had been admitted on the same day and neither could claim seniority.
Sir Ian found the decision to join the independent bar difficult as he would be making himself and his family “hostages to fortune”. However, with relatively few barristers sole in 1969, there was room for newcomers. Setting up chambers in a new building housing a couple of solicitors’ firms, Sir Ian remarked that “the law of propinquity is a good thing”.
When Sir Ian took silk in 1973 the process simply involved a discussion with the Chief Justice followed by approaching the Attorney-General. Sir Ian’s discussion with Chief Justice Sir Richard Wild caused some trepidation, but Attorney-General Martyn Finlay QC of course recalled Sir Ian from their early murder case. Before the call ceremony, the other silks took him to lunch, encouraging him to drink sufficient red wine to falter over the oath. Fortunately, they failed, and Sir Ian managed to get through it without problem.
In 1976, at the age of 42, Sir Ian became a High Court Judge. There were only eight judges in Auckland back then and he described his office as a broom closet at the top of the stairs in the old High Court building. Asked about the highlights of his time on the bench, he recalled the Securitibank litigation. It more or less fell into his lap. He was taking a quick break when a court official asked if he would urgently see a lawyer – James Farmer KC – whose client wanted to put Securitibank into provisional litigation.
This request led to what was the largest commercial case in New Zealand’s legal history, resulting in ten years of litigation with 41 judgments related to Securitibank itself and another dozen or so in relation to its subsidiaries. Farmer says it was almost certainly the first time a Judge case managed major litigation.
The first and most important judgment was an application for directions by the Provisional Liquidator, represented by Farmer. Because there were several groups or different types of creditors, different counsel were appointed by the Court to represent each of those groups. They included Richard Craddock and Don Dugdale, then arguably the leaders of the Bar and Rhys Harrison KC and Colin Nicholson KC (later High Court Judges and in Harrison’s case a Court of Appeal Judge) and Alan Galbraith KC. Sir Ian’s judgment occupies 115 pages of the New Zealand Law Reports[4] following a four-month hearing and just seven weeks to write his judgment. Farmer recalls that:
“[T]he Securitibank case] also heralded calls for the establishment of a specialist Commercial List to ensure that commercial litigation was accorded a degree of priority and specialisation. The Commercial List was eventually established, and Ian was the first Judge appointed to manage it, which he did with great skill for several years. It was a disappointment that the List was confined to managing commercial cases to the point of readiness for trial and that there was not a panel of Judges with commercial experience appointed to try the cases. However, I have no doubt that he used his position and influence to ensure that the Judges who were allocated to conduct the trials were not completely inappropriate or unsuited to do so.”
Famous in legal circles for his outstanding memory, Sir Ian relished complexity and obscure detail as exemplified in his last case, Shell (Petroleum Mining) Co. Ltd v Kapuni Gas Contracts Ltd[5] involving splitting ownership of a gas field. Sir Ian was also the Executive Judge for six to seven years and created the duty judge role.
Chief Justice Dame Helen Winkelmann paid tribute to Sir Ian, saying that he was “… an outstanding judge and a true leader of the profession. His distinguished career in the law spanned sixty 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.”[6]
Matthew Andrews, now Chief Legal Advisor at Te Arawhiti | Office for Māori Crown Relations, fondly remembers his time as Sir Ian’s clerk at the Auckland High Court. “I had the great fortune to clerk for Sir Ian at the Auckland High Court. His in-court persona was of someone who expected high standards, especially in the crazily busy Auckland Commercial List of the early 1990s which rapidly developed Aotearoa's commercial law in so many areas.”
“To his clerks he was kind and encouraging. He showed his appreciation for help on his many speaking and academic commitments through excellent red wine. My strongest memories of him at this time were those cases where he sought to align the law with what was right, when it wasn't always clear that the outcomes would be the same.”
Sir Ian retired from the bench in 1997 at the age of 63 and began what he called his third career in the law. He became a foundation member of Bankside Chambers in 2001 where he practiced as an arbitrator and mediator. He was chair of the Banking Ombudsman Commission, a World Intellectual Property Organisation (WIPO) panellist for domain disputes, and he conducted investigations. He said that his most interesting inquiry involved the award of a Master of Arts degree for a thesis that essentially denied the holocaust had happened.
Regularly sitting on the Court of Appeal bench in the Cook Islands and that of other Pacific nations, Sir Ian developed an affinity for the Cook Island people and found the work to be very interesting and his cases diverse, ranging from the Cook Islands superannuation scheme, land cases, and fishing rights issues concerning the Cook Islands’ extensive exclusive economic zone.
Sir Ian also served as President of the Legal Research Foundation from 1982-1991 and was appointed a Fellow at the end of his presidency. He taught law and was the longest serving chancellor at the University of Auckland from 1991 to 1999, enjoying seeing the joy on the faces of the students being capped.
Becoming an associate member of Bankside in 2019, Sir Ian’s version of retirement involved many morning tea catch-ups with old and new colleagues seeking advice and a friendly ear. Not one to waste time, Sir Ian also provided weekly remedial reading assistance at Otahuhu College alongside two other retired High Court judges.
Many colleagues at Bankside Chambers have paid tribute to Sir Ian. NZBA President Maria Dew KC and Bankside colleague notes, “We are saddened by Sir Ian’s loss, and he will be deeply missed. He was a wonderful mentor to me and many others. He contributed to many organisations over the years, the NZBA included. At Bankside, he was kaumātua to all. He rarely spoke about his own accomplishments, and instead focused his interest on others and the world outside the law, travelling, writing, and engaging to the end. His warm smile will be missed.”
Deeply respected by all, Sir Ian was held in the highest esteem by colleagues and fellow judges alike. He was famous for his warmth and kindness, his sharp intellect, efficiency, and endless capacity. Sir Ian was knighted in 1994, acknowledging his huge contribution to law.
In a 2020 webinar, Sir Ian was interviewed about his career by Kate Davenport KC. She asked him what he would like his legacy to be. He replied, “That he dealt with people justly and efficiently and tried to make the system work better.”[7] Few would argue with that, but they would also add that he contributed more than he took.
Sir Ian is survived by his wife Mary, his five children, Clare, John, Andrew, Mary Elizabeth and Lucy, and his grandchildren.
[1] Fraser v Walker [1967] 1 AC 569; [1967] NZLR 1069
[2] A Chat with Sir Ian Barker QC (Webinar, 21 May 2021, New Zealand Bar Association | Ngā Ahorangi Motuhake o te Ture)
[3] Jeffs v New Zealand Dairy Production & Marketing Board [1967] 1 AC 551; [1967] NZLR 1057
[4] Re Securitibank Ltd (in liq) [1978] 1 NZLR 97
[5] Shell (Petroleum Mining) Co. Ltd v Kapuni Gas Contracts Ltd (1997) 7 TCLR 463
[6] Chief Justice pays tribute to Sir Ian Barker KC (https://www.nzbar.org.nz/news/chief-justice-pays-tribute-sir-ian-barker-kc)
[7] Above at n2.
