Leading jurist reflects on justice in valedictory lecture
Legal luminaries packed out the University of Auckland’s Old Government House lecture theatre on a very sultry evening in February, for the valedictory lecture of much-loved and respected jurist and Law School Fellow, Sir Ted Thomas.
In introducing Sir Ted, Dean Andrew Stockley joked they had had to remove the word “Visiting” from the title of “Distinguished Fellow” in Sir Ted’s case, as he (fortunately for the Law School) had shown no inclination to leave. Indeed, after his 16 years at the Law School he will leave an ongoing legacy behind him, not only through his academic work, but also in his involvement as Patron of the student-led Equal Justice Project (EJP), and via a generous donation towards the establishment of a new social justice course.
Dean Stockley praised Sir Ted’s belief in the law’s power to do good for society, and his lack of fear in standing up and speaking out where justice has not been served. “‘Reflections on Justice’ is a wonderful title for this lecture,” he said. “It sums up what has driven Sir Ted.” As Sir Ted himself puts it, “Although I have loved the law, I have loved justice more”.
Sir Ted began by discussing some attributes of justice that we can glean from considering the traditional image of a blindfolded, scale-balancing “Lady of Justice”, of whom his own study boasts a number of examples in ornament form. While Lady Justice’s blindness shows her objectivity and impartiality, her scales represent the fair balancing process between different values and interests that are the essence of the judicial function. The presence of a sword is more controversial, and while various, more authoritarian arguments have been suggested over the years, Sir Ted’s own view is that it symbolises the common law’s aim of “protecting” those vulnerable to exploitation by others in positions of power, and reflects societal expectations that the law exists to right wrongs.
Sir Ted’s overarching theme was that “judges should give overt and transparent attention to the justice of a case as part of their reasoning in their judgments”.
Yet, although this much can be deduced from Justice’s physical attributes, “justice” as an abstract concept is harder to define. As Sir Ted points out, we use it in such disparate contexts as “corrective justice”, “procedural justice” and “natural justice”, and while we may describe it as “just conduct” or “fairness”, this makes for a question-begging definition. Similarly, despite a temptation to think of justice as “universal”, different cultures may have different beliefs about what is just or unjust.
Sir Ted has reached the conclusion that, while the meaning of concepts such as “dignity”, “humaneness”, “virtue”, or “utilitarianism” can be relatively easily distilled, this exercise is futile in the case of justice. “Justice exists, of course, but it has no abstract meaning divorced from a particular context,” he says. “Ultimately, what is or is not unjust or unfair in a certain context depends on a consensus within the community. Judges reflect this consensus immanent in the community.” Often, it is easier to explain what is just by considering its converse, i.e. we are more comfortable with identifying “injustice” or situations where justice has been denied. Sir Ted stresses that this definitional difficulty by no means negates justice’s importance, and that a key feature of the dynamic of it is our common law’s ability to give effect to its dictates. “The fact justice is incorrigibly context-specific does not mean that it is any less important in the administration of the law. It is through just decisions in individual cases that the law is provided with its moral direction.”
Other concepts may assist us in endeavouring to understand what justice is about. Sir Ted cites its “close connection” with empathy – “Our capacity to put ourselves in the position of another … to stand in another’s shoes.” Empathy is “the motivation or driving force behind the desire to do justice” and “a counterpoint to the evil of formalistic thinking”.
He also noted the interrelationship between justice and equality. Equality “before the law and in the law”, and the “claim of human beings to equal dignity” both form part of a wider, more profound concept of justice. However, equality and justice are not synonymous. Sir Ted used an image depicting three children of different height trying to see over a fence at a sports ground to illustrate the occasional necessity of treating people unequally to achieve justice. In one view, while each child has a soap box to stand on, the smallest still can’t see the game. Only when the soap box is taken from the tallest child and given to the smallest child, can each child have an equal view of the action.
A related point to whether like should always be treated alike is what Sir Ted calls “the coercive element in the doctrine of precedent”. He has long held the view that, if an earlier “binding” decision is unjust, a decision that “slavishly” follows it will also be unjust. “A decision does not gain in terms of justice simply because it is consistent with an earlier decision.” Sir Ted agrees that “a foolish consistency is the hobgoblin of little minds”.
Returning to his earlier point about the law’s “ultimate abhorrence of exploitation”, he considers it likely that the law “has no higher calling than to defend the poor against the mighty, the powerless against the powerful, and the weak against the strong”.
Sir Ted illustrated the importance of a court not losing its “moral compass or justice bearings” by referring to the reasoning of the Supreme Court in in GE Custodians v Bartle (2010) NZSC 146,  2 NZLR 31. Sir Ted sought to demonstrate that the reasoning was fundamentally flawed. Asking how five intelligent judges with formidable judicial talents could have reached a finding that was so clearly aberrant, Sir Ted suggested that the Court had lost its moral compass – its justice bearings.
The case involved a Blue Chip sub-prime mortgage gone awry. Mr and Mrs Bartle were an elderly couple, whose only income was their superannuation and their sole asset was their modest family home. They were persuaded by Blue Chip salesmen to enter into a joint venture on the promise of a modest monthly income, and to mortgage their home to enable them to do so. They could not afford the repayments and, when they inevitably defaulted, the mortgagee exercised its power of sale.
The questions for the Court included whether the mortgage was “oppressive” under the Credit Contracts and Consumer Protection Act 2003 (CCCPA). In reaching its finding that the mortgage was not oppressive, the Court accepted that Mr M (who, on Blue Chip’s recommendation, was the lawyer who advised them on the transaction) was “independent”.
Sir Ted points to a number of “red flags” which he considers were not sufficiently taken account of in the Supreme Court’s findings, including that the mortgage was specifically structured as a subprime mortgage (considered “predatory lending” in the US), and lack of consideration given to the express purposive intent of the CCCPA (i.e. the protection of consumers). In addition, he questions why the Court chose to add a gloss to the statutory definition of oppression, and introduced a requirement that the mortgagee had to know of the factors that made it oppressive.
Further, and in spite of a number of factual findings about Mr M (including that he was not the Bartles’ own lawyer but one recommended by Blue Chip, that a substantial part of his practice was Blue Chip work with Blue Chip investors making up 75% of it, that in addition to fees from the couple he also received fees from Blue Chip, and that he failed to advise the couple of the potentially fatal risks in entering into the sub-prime mortgage), the Court nevertheless accepted that Mr M was “independent”.
Sir Ted suggests that the Court should have re-examined the facts more closely with an eye on fairness to the Bartles and that, with “analytical and logical thinking”, this would have led it to reach the correct decision in law and to exercise the wider remedial powers conferred by statute. “It would have been possible, for example, to vest the freehold in the mortgagee and give Mr and Mrs Bartle a life interest in the property or, simply … deprive the mortgagee of the fruits of its predatory lending.”
A vote of thanks was proposed by Sir Ted’s granddaughter, Aroha Chinchanwala. In a delightful speech she recalled how, when she was five years old, her Granddad would pick her up after school on Fridays and take her to a cafe for a hot beverage. But there were no tales about fairies or unicorns. Granddad talked about, “you guessed it”, justice. It was all about the little boy who was caught by his mother with his hand in the cookie jar and given time out. Different scenarios required different answers. “Yes, I was five, people, five!” she reminded the audience.
It is certain that Sir Ted’s wisdom, insights and passion for justice will be missed, and it is to be hoped that, despite his retirement, he continues to speak up for those who stand in need of it.