 It's my very great pleasure to introduce Sir Edmund Thomas tonight giving his valedictory lecture as a distinguished fellow of the Auckland Law School. When I arrived as dean, Ted had the title of Distinguished Visiting Fellow, and so I decided to take out the word visiting because Ted was showing no sign of leaving. But I also hoped that this would signal that we did not want him to. So Ted became a distinguished fellow at the time the Law School's only distinguished fellow subsequently joined by Sir Anand Sachinand and Justice Tony Rantason. So Edmund merits the appellation distinguished in all sorts of ways. His appointments as Queen's Council, a judge of the High Court, a judge of the Court of Appeal, an acting judge of the Supreme Court, a Knight of the Realm, all testify to the immense contribution he's made to the jurisprudence of this country. Ted is a man seeped in the law. He knows the law, he's practised the law, he's helped develop the law, he continues to write about the law. But more importantly, he believes in the law's power to do good for society. He believes in the protection it can offer the most vulnerable members of society, that it must embody values based upon human dignity and worth, and he's been unafraid of speaking out when the law falls short of this. For Ted, the law should and must achieve justice. As a lawyer, he argued the case that stopped the 1985 All Blacks tour to Apartheid, South Africa. As a judge, he gave the powerful dissent and quarter and attorney-general when he said that same-sex couples should not be denied the right to marry because of who they are and who they love. Ted's topic tonight is aptly titled Reflections on Justice. It's a wonderful title because it enables Ted to talk about anything he wants to, but it's also wonderful because it's summed up what has driven Ted. He's been willing to take on any law, any court, any judge, any academic commentator if he thinks justice has not been served. We have been incredibly fortunate to have this passionate, caring, erudite, committed jurist as a distinguished fellow of the Auckland Law School. It's been of enormous benefit for our students having to come and talk about his experiences on the bench in guest lectures, coming and judging competitions, talking to the students afterwards about how to improve their advocacy and the objectives of what they're seeking to achieve for their clients, talking with students, doing research papers on all sorts of topics. It's been an enormous benefit for our staff having him participate, critique, challenge them in seminars and in live and in common room conversations. But all the time that he's been a distinguished fellow, Ted has kept coming back to justice. He's been patron and an avid supporter of our Equal Justice Project, an organisation within the Law School that brings together hundreds of our students who assist with law reform projects and providing pro bono assistance to charitable organisations, individuals and community law centres. And just recently, he and Lady Margaret Thomas have given the Law School a substantial donation for our social justice initiatives to include establishing a social justice course. It is my very great pleasure to introduce to give his valedictory lecture, Reflections on Justice, a truly distinguished fellow of the Auckland Law School and I'd ask you to welcome Sir Edmund Thomas. Chief Justice, distinguished guests, ladies and gentlemen. Thank you, Dean, for those remarks. I thought you might have added at the end. Of course, he's got a lot older since and put things into better perspectives. I also expressed my gratitude to Hailey Nicholson and Sarah Jane Krutha for their fine effort in organising this lecture. They have been fantastic. I've also thanked my granddaughter, Aroha Chin-Chenwawa, my stern coach and critic and I thank my wife Margaret for her help, support and patience as I struggled to put this humble lecture together. And of course, I thank all of you for attending tonight. I chose the simple title, Reflections on Justice, for this lecture in order to convey that I did not intend to undertake a deep jurisprudential exposition of the complex subject of justice. And when discussing the title with the Dean in the Law Common Room at Morning Tea, I suggested that the title might be reworded, Random Reflections of Justice, to better convey the modest aim I have. Random Reflections of Justice would convey that. A colleague overhearing the conversation turned to his neighbour and said, this is great, Ted is going to talk about reflections on random justice. Someone else volunteered the word rambling, rambling reflections on justice. Some logic to this suggestion, as when one reaches my advanced age, reflecting or having reflections is a given. But I regret to say so too is rambling. No further consideration was given to the use of the words random or rambling, but my intention not to enter upon a deep and jurisprudential exposition of justice remains. To covert academic or my life, I find this disappointing, but I assure you you will not. The lecture does however have a firm theme or message, and that theme or message is that judges should give overt and transparent attention to the justice of the case as part of their reasoning in reaching their judgement. Lord Stain was actively inclined to do so towards the end of his tenure on the House of Lords. It is my regret that I did not similarly disclose the value judgement underlying or directing many of my decisions was in fact the value of justice. In preparing this lecture, I relied heavily on a remarkable book in which the topic of justice is a recurring theme. Indeed, I must admit that I have even filched a number of ideas from this remarkable book. My justification for this, shameless plagiarism, is that I find it says what I want to say better than I could say it myself. And this is the remarkable book. Notwithstanding that I assigned all my rights away in a contract I really should have read, I insisted that Cambridge University Press let me provide a depiction of the Lady of Justice for the cover. I went to Google. To my surprise, I found that Google provided over 2,000 images of the Lady of Justice. I was even more surprised to find a picture of the late Marilyn Monroe among those pictures. I'm the first to admit that had I persisted with the late Marilyn Monroe on the cover, this remarkable book would have sold many more coffees than has been the case. My personal commitment to justice is apparent from the ornaments that adorn my study. Take this splendid example given to be by migrants and my good friends, Doug and Beverly Graham. And then behold this porcelain piece. You may note, you will note that the scales have fallen from the Lady of Justice's hand. Now I acknowledge that coincidences do happen. So while I accept that it may have been a coincidence, it is a fact that the scales of justice fell from the Lady of Justice's hand on the very day in the very hour I accepted appointment to the High Court in 1989. Had the good lady retrieved the scales, they would undoubtedly have fallen again. For when I did my first sentencing and sentenced a prisoner to a term of imprisonment somewhat in excess of the maximum term provided in the statute, the prisoner persuaded the Court of Appeal that this was unjust. In their traditional posture, the Lady of Justice stands serenely blindfolded holding a pair of scales in the one hand and a sword in the other. The blindfold denotes the justice is blind to prejudice or pressure. The scales are invariably held in an outstretched hand, enabling them to perform the balancing faculty. The sword is more mobile. It is sometimes brandished aloft and at other times swath within the folds of the good lady's ample skirt. We all know why justice is blind. Justice is objective and impartial, administered without fear or favour. She bears no will to any litigant and all are equal before the law. Thus justice is even handed. We also know, symbolise the process by which one value or interest or values or interests are balanced against other values or interests. In this way, this balancing exercise justice is done. A fair waiting is an irredeemable element in achieving justice. Because judicial decision-making is essentially a balancing exercise, the scales of, in fact, symbolise the judicial function itself. But why the sword, a weapon? It seems incongruous that our Lady of Justice should bear arms. Strangely enough, no-one seems to know exactly why the Lady of Justice carries a sword. Lord Denning has suggested that the sword is the symbol of the authority by which justice is done. No judgement of any court and no order of any judge, he reasons, is of any use unless it can be enforced and to be enforced requires the authority of the state behind it. Thus the sword of justice is the sword of the state. It is, Lord Denning states, the symbol of authority which must be upheld. Lord Denning's conjecture that the sword symbolises the authority of the state can only be accepted in the broad sense that the justice administered by the courts is backed by the authority of the state. But our Lady of Justice holds out the promise that justice will be done in the individual case and it is in that respect that Lord Denning's theory is deficient because the authority of the state may be used to enforce an unjust judgement or order or it may fail for a variety of reasons to enforce a just judgement or order. Enforcement or execution is a process which operates after justice has been done or not done. It is an essential element of law and order but not an integral facet of the justice administered in the courts. The enigma of the sword has not troubled the United States. The Americans have fashioned their own Lady of Justice. I have been led to a less authoritarian explanation than that suggested by Lord Denning. Over the years and particularly when on the bench I noted that the common law seemed to possess an underlying design. It repeatedly sought to protect those who were vulnerable from being exploited by those in a position of power or dominance or having an unfair advantage. Hence the sword, but more of that or not. I begin with what I regard as a basic truism. The law is a social institution which exists to serve society. This dedication and subservience to the needs and expectations of society is the law's rationale and justification. Those that hold firm to the mystical notion that the law is an independent and autonomous or self-sufficient and self-sustaining discipline must be dispatched to the bottom of the garden where they can blissfully romp with the resident ferries already there. And therefore the purpose and function of the law is to serve society of which it is a part. And to do that it must strive to meet society's expectations. Prime among those expectations is the expectation that the law and the courts will deliver justice. People go to the lawyer in the first instance and then to the courts, complaining that they have suffered a wrong and expecting that wrong to be righted. They seek justice and look to the law to provide that justice. They would rather see a Solomon on the bench than a walking epitome of horse breeze laws of England. Justice, however, is an elusive concept. It seems to defy definition. The most intelligent and erudite of philosophers and theorists are unable to essay a determinative theory when a comprehensive theory is attempted, as in the case of John Rawls. The forests of Chile are dramatically thinned as paper is produced to cope with the ever-mounting and never-ending criticism of that theory. So it seems it continues to urk us that no more definitive definition of a concept which is so central to society is attainable. But if for a moment the vast variety of senses in which we use the word justice, we refer to corrective justice and distributive justice to substantive or material justice and procedural justice, to legal or formal justice and social justice, to natural justice or due process, and to many more variants of this phenomenon called justice. We take the Justinian preset that, quote, justices the set and constant purpose to give every man his due, unquote, without any general assistance or guidance as to what is the person's due. We equate impartiality with justice even though an impartial arbiter may arrive at a finding we consider substantively unjust. We recoil in the name of justice at the notion that persons in an equal position should receive less than equal treatment, or that some justification is proffered to explain the inequality or different treatment. We insist in the name of justice on the ideal of basic human equality or worth but temper the consequences with notions of merit. We ally justice with notions of basic rights, entitlement, empowerment, and the condemnation of oppression or domination. We assert an absolute or universal concept of justice that are yet forced to concede that different cultures have different beliefs as to what is just and unjust. But still, as the crescendo of disagreement and variation mounts, we strive for a unifying feature. I have been brought to the view that no such thing as justice in the abstract is attainable, or if there is, it will forever deny, defy our abilities to discern or agree on its abstract essence. It is therefore largely a futile exercise for philosophers, legal theorists, and other commentators to seek to define justice in the abstract, or to seek to identify a unifying feature. Justice exists, of course, but it has no abstract meaning divorced from a particular context. It is so multifaceted and diverse that no universal or common element emerges for us to seize upon. As already indicated, it is incomplete to say that justice requires that every person be given their due. What then is their due? The question is begged, at least until placed in a concrete situation in which an aggrieved person claims not to have received his or her due. Then the argument becomes clear. There is then a reason why it is claimed that the fact is not that person's due, or why that person has received something that is not their due. The unfairness is once exposed. One only has to take the simple example of a neighbour who has borrowed one's lawnmower and failed or refused to return it to perceive what is one's due. We do not appear to have the same difficulty distilling the abstract or universal meaning or concept, such as to take random examples, dignity, or humanness, or virtue, or utilitarianism. To speak of the dignity of people is to speak of their essential worth as individual human beings. To speak of humanness is to speak of benevolent or compassionate conduct. To speak of virtue is to speak of moral excellence and goodness. To speak of utilitarianism is to refer to the usefulness of some act to the benefit of others generally the majority. To speak of justice, however, is to speak of just conduct or fairness or the assertion or maintenance of right. We may as well say that justice is about justice, or what is considered just or unjust, but we are then back to begging the question. Our discourse reflects this problem. We are much more comfortable with the negative concept of injustice, simply because it is likely to be associated with a concrete situation in which it is alleged justice is absent. Justice, then, in my perception, does not have an identifiable abstract meaning or discernible essence. No universal or holistic definition is presently possible. Justice, however, certainly exists in a concrete specific context. It is, encourageably, concrete specific. And outside a concrete specific context it loses its identity and attempts to capture its essence founder on its diversity and differentness. But if justice has no sensible meaning in the abstract, or at least it is beyond our human limitations to perceive it, what are we to do with the question of justice or what is fair? We can, of course, continue to pursue endless philosophical discourses which, somewhere along the way, tend to become exercises in linguistic source semantics. We can certainly undertake more empirical research in the hope that a common or unifying element will emerge. It may well be that we will accept that there is no unifying or common element in the use of a number of discrete concepts, each with its own abstract meaning or discernible essence appearing under the loose banner of justice. In this quest, I do not doubt that we can look to the sociologists or psychologists to assist in determining why and when people proclaim that something is unjust. This letter inquiry, I believe, probably represents the most productive avenue of determining whether and if so why a vast and diverse group of contexts in which it may be said injustice exists can be legitimately grouped together as a distinctive category or categories. Nor can I profit the source of justice in a specific context. That is to say, I cannot provide a theoretical answer to the question why it is that most people would describe a certain act or in a specific context as unfair or unjust. Their opinion will represent a sentiment eminent in the community and seemingly deeply rooted in the psyche of the individuals in that community. Why the community adheres to that sentiment, however, points to no easy answer and no doubt embraces answers relative to the history, culture and social and economic order of the society of which they are citizens. At times indeed, the sense of injustice that can arise in circumstances can seem innate to the individual. Most of us have had the experience of observing an infant bellowing his or her eyes out when just chastised for something they have not done. Ultimately, whatever its derivation, what is or is not unjust or unfair in a certain context depends on a consensus within the community. Just as I suggest, is not so much a political construct as some theorists do hold as a community construct and judges reflect this consensus eminent in the community. The fact justice in the abstract does not lend itself to a ready definition and is encourageably concrete specific does not mean that it is any less important in the administration of the law. To the contrary, it becomes all the more pertinent for the law is very much concerned with the concrete specific situations of individuals. It seems to provide justice, it seeks to provide justice in the individual case and it is through just decisions in those individual cases that the law is provided with its moral direction. I entertain no doubt that the law is sufficiently flexible to allow justice to be done in the instant case. Those who resist this perception are unaware or do not like the extent of judicial autonomy or discretion. They have failed to perceive what Professor Unger of Harvard has called the incorrigible indeterminacy or what Professor Endicott from Oxford has described as the vagueness of the law or what not to be done I have urged in my book is the inherent uncertainty of the law. I need not expand on this question here. Suffice to say, such indeterminacy vagueness and uncertainty is part and parcel of the dynamic of the common law and within this dynamic there is ample scope for both the liberal and conservative judge to give overt recognition to the dictates of justice and thereby reinforce the moral direction of the law. I have long held to the view that empathy has a close connection with justice. I am not referring to the empathy which can lead to divisive and harmful effects the identification of a group as us and of those who are different as them with all the overtones of superiority and discrimination such a dichotomy entails. Rather I am referring to our capacity to put ourselves in the position of another and perceive understand and indeed feel his or her situation to stand in another's shoes or to see the immediate world through their eyes and share their plight, their misgivings, their grievances and indeed their pain. The reaction is other oriented elicited by the perceived welfare of a person in need at a disadvantage out of their depth or otherwise vulnerable. In this sense empathy is to be seen as the motivation or driving force behind the desire to do justice. In other words it is empathy or an empathetic concern which engenders a consideration of the justice of a given situation and a desire to do justice in that situation. Critics will argue of course that the law and more particularly a predictable law cannot tolerate empathy yet others such as myself will see it as a counterpoint to the evil of formalistic thinking. A related issue that has also been a close interest is the relationship of equality to justice. Although I have more frequently pursued that issue in the context of social justice there I have stressed the exploitation inherent in capitalism neoliberalism and globalisation particularly in relation to workers. In the course of these enlightened rants or raves I have questioned the worth of the mantra equality of opportunity yet the law has its counterpart and that is that everyone is equal before the law. This principle is regularly undermined by the inequality that exists in citizens access to justice yet it is obviously just that everyone should be equal in the eyes of the law obtain equal access to the law no one should be at a disadvantage because of their status, wealth race, religion or any other fact or extrinsic to the law or to the courtroom but I would question whether that kind of equality is enough to satisfy the demands of justice. I admit to a deep rooted bias in favour of a more substantive equality. When I was attending Bible class as a Kala youth many many years ago I could not bring myself to accept that a supreme creator with independent powers could or would tolerate the notion that individuals could be unequal yet all around me individuals were clearly physically and intellectually unequal. The school captain seemed to have an advantage that the doled or disabled people did not possess. I therefore advanced the theory to my disconcerted teachers that God compensated the less advantaged with other obscure blessings such as a greater capacity for justice. In the end therefore God's people could be said to be equal. It seems they were God driven walking talking equations all of which were ultimately equal. I have to say this theory did not endure beyond my formative years but I'm not sure that the in-belt bias it reflected did not. And so I have looked for something more substantive for equality than simply in quality before the law. That substantive contribution I believe can be identified in one overriding respect the claim of human beings to equal dignity. Others have pointed out and I have faithfully repeated that underlying human rights is the dignity of the human person. Everyone has an equal right to claim that dignity and the rights that spring from it. So it is with the law generally. Thus not only is everyone equal before the law they are equal in the law and it is that equality that encompasses a wider and more profound justice. Thus one can conclude that equality is a factor although not the only factor in the achieving justice. But even this perception eventually saw when reflecting on this complex subject of justice does not necessarily exclude the converse. At times it may be necessary to treat people unequally in order to do justice. Take a look at this image. If the children were treated equally it would be unjust but they are treated unequally and given different sizes of stools and justice is done. I came to the conclusion that it is difficult to determine when equality or inequality is part of justice. Justice difficult as it is to define justice in the abstract. The answer as to when justice and equality must converge or when they must diverge will again be concrete specific. But no less real on that account. This exposition of equality and justice has an important derivative. It invites one to consider more precisely the precept of treating like a like and the role of precedent or more particularly the coercive element in the doctrine of precedent. I have long held the view that if an earlier so-called binding decision is unjust a decision that then slavishly follows it will also be unjust. A decision does not gain injustice simply because it is consistent with an earlier decision. A foolish consistency I have agreed is the hobgoblin of little minds. I long cherished a quotation which seemed to me to emphasise what was so often happening in the courts. Justice is the right of the weaker. The quotation is from Joseph Jobert, an 18th century philosopher, moralist and writer. I concluded an address in 2000 with this musing. It may well be 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. And many years later this rhetorical musing became a 14,000 word theory of justice. The theory which I expound in the final chapter of the book is an extension of the concept of corrective justice. In returning the parties to the position they were in before the impeach transaction, it seems to ameliorate the harsh, it seeks to ameliorate the harsh extremes of individual liberalism and the economic order capitalism. I perceived the underlying concept of the common law including equity to be the law's ultimate abhorrence of exploitation. No person may exploit another in the sense of taking or obtaining an unfair advantage at the other's expense. In other words the law serves to protect the weak and vulnerable from the machinations and unfair domination of the strong and powerful. It takes a stand when a person seeks to take advantage of another in a manner or to an extent where it can be fairly said that he or she is abusing the freedom which individual liberalism confers on them. This deep and extended prevalence of the precept of non-exploitation permeates all branches of the law. Equity, with its express concern for the vulnerable of course but also contract, tort and public law. Its implementation, I claim becomes an integral part of the judicial function. In my book I undertake an extensive survey of all branches of the law to demonstrate that the precept of non-exploitation is embedded in the law but tonight we must be spared that lengthy survey. Instead I propose to provide a graphic example of the need for courts to forever be sensitive to the dictates of justice. It is the judgment of the Supreme Court in 2010 in GE custodians and Bartle or more particularly one aspect of the reasoning of the court in reaching its decision. The court was unanimous in reversing the unanimous decision of the Court of Appeal. The judgment and the Supreme Court was given by Justice Blanchard. While I acknowledge that the Supreme Court is made up of highly intelligent and able judges and that it has given many splendid judgments I will suggest in due course that this particular finding is so clearly wrong that the explanation can only be in the judicial lapse is that the court at least momentary lost its moral compass. Its judicial bearings if you like. Mr and Mrs Bartle were an elderly couple their only income was New Zealand superannuation amounting to $21,336 per annum. Not quite as much as most of you spend on coffee and chardonnay every year. Their sole asset was a relatively modest unencumbered home in 2006 they were targeted by blue chip salesmen and were persuaded to enter into a joint venture with that company of a modest monthly income. The blue chip salesmen introduced a mortgage broker who arranged a loan from GS custodians for Mr and Mrs Bartle to enable them to participate in the joint venture. It was this mortgage and not the joint venture that was an issue. It was accepted that Mr and Mrs Bartle could not afford the repayments under the mortgage indeed Justice Hammond in the Court of Appeal referring to United States jurisprudence described the mortgage as a quote asset sale unquote. So when the inevitable occurred and Mr and Mrs Bartle defaulted the mortgage exercised its power of sale the question and issue was whether the mortgage was oppressive under the credit contracts and consumer protection act of 2003. Although they had their own lawyer Mr and Mrs Bartle had persuaded Mr and Mrs Bartle to take advice from Mr M on the basis he understood the scheme whereas their own solicitor might not. It is clear that Mr and Mrs Bartle would not have entered into the mortgage but for this advice and the assurances they received from Mr M His advice and assurances were critical in their decision to proceed. Mr was held by Supreme Court to have been independent and it is that finding which I suggest is patently wrong. Mr M's advice was subsequently found in the High Court to be grossly negligent but that did not avail Mr and Mrs Bartle as Mr M filed in bankruptcy. I suspect aberrant findings of the kind I'm about to describe do not suddenly appear out of the blue as it were and indeed there is more than a suggestion that the Court had lost its bearings before the question whether Mr M was independent was approached. I will restrict the red flags to five points. In the first place the mortgage was a subprime mortgage. It had been specifically structured as a subprime mortgage. The mortgage was a mortgagee was a subsidiary of a conglomerate in the United States which was among the top 10 subprime mortgage companies in 2005. In that country with a loan value of 32.2 billion amounting to 5.5% of the subprime mortgage market. It nowhere in the judgement is there any mention of the fact that the mortgage an issue was a subprime mortgage. It was a subprime mortgage in the court room. This odd omission is not just a matter of calling a spade a spade. Had the Court noted that the mortgage was a subprime mortgage it might and should have felt obliged to refer to the case law in the United States and the courts in that jurisdiction have taken an entirely different approach. Subprime mortgages are unhesitatingly described as quote predatory and uninsettable. They are. Secondly, the Credit Contracts and Consumer Finance Act 2003 is one of a number of acts explicitly enacted for the protection of consumers. Not once in this express legislative purpose and intent, amounting nothing to nothing less than a statutory directive to the courts even acknowledged. The definition is to reinterpret the statutory definition of oppression. Oppressive is defined as oppressive, harsh, unjustly burdensome, unconscionable or in breach of reasonable standards of commercial practice. The definition provided the court with a range of meanings any one of which might have been thought appropriate. Instead the court imposed a gloss on the statutory definition of oppressive mortgages and the legal advice had the effect of making mortgagees the arbiters of what is or is not an oppressive mortgage. Fourthly, although counsel's argument for Mr and Mrs Bartle was that the mortgage was oppressive in its terms, the court introduced a requirement that the mortgagee must know of the factors making the mortgage and the advice does not fulfil the role adequately the oppression remains. This must be so. If a transaction is horribly oppressive but for whatever misguided reason their lawyer tells the party it's not oppressive the transaction is still oppressive. It must be that damned elephant the Supreme Court harbours. If you see an elephant and the zookeeper for whatever it is still an elephant. Fifthly, to justify the conclusion that the lender had to have knowledge of the factors that make the transaction oppressive the court opined that it was not aware of any case where it would have been contended that the lender did not have such knowledge. This is an odd use of prior case law because neither is there any prior case where it has been held that the lender must have such knowledge and any such requirement or implication can certainly not be found in the statute. So perhaps the astute reader is already steeled for the onset of an inexplicable error in respect of the finding that Mr M was independent. Now these are the facts. Mr M was not their own lawyer they had a lawyer of their own Mr M was strongly recommended by the blue-chip salesman at times during their dealings with Mr Mrs Bartle blue-chip salesman dealt direct with Mr M and blue-chips work together formed a substantial proportion of Mr M's sole practice. Now this is worth noting please this is a substantial proportion of Mr M's sole practice. He had about 150 clients who were blue-chip investors making up approximately 75% of his practice 75% of his practice. He represented 50 to 60 blue-chip investors in 2006 50 to 60 clients. He employed two staff members both of whom were specifically dedicated to handling blue-chip conveyancing work. In addition to the fee he recovered from Mr and Mrs Bartle on the mortgage Mr M received the fees for carrying out the mechanical work associated with the registration of the mortgage from blue-chip. Mr M had never once advised any one of the many clients who were sent to him for advice to reject this subprime or even question this subprime mortgage. To this formal list I would add the fact that Mr M's advice in failing to advise Mr and Mrs Bartle of any of the number of real and potentially fatal risks that they faced in entering into the mortgage in itself indicated that he was seriously compromised. I doubt that anyone in this lecture room thinks that Mr M was remotely worthy of the description of independent. He may as well have been blue-chips in-house lawyer. Look at the facts again. He was literally incapable of discharging the solicitor's fundamental fiduciary duty to Mr and Mrs Bartle. I have found that when confronted with an allegedly bad decision, sub-judges will seek to shift the responsibility to counsel. Council's argument it will we said was inadequate or deficient. But I cannot accept that this pitable excuse is acceptable in this case. Certainly the issue was outside Council's argument that the mortgage was oppressive in its terms. But the facts were clear. I have not made these facts up. They come from the court's own judgment and the judgments of the court below. They were known to the members of the court. And the notion that a tame solicitor cannot be considered independent had been rehearsed in oral argument. Justice Tipping had said quote, you can't be both tame and independent unquote. So I am compelled to suggest that it is not going too far to say that at this point the Supreme Court, our highest court was in fact dysfunctional. How did this come about? How did five intelligent judges with formidable judicial talents reach a finding that is so clearly aberrant? I would venture this explanation. I believe that the court lost its moral compass, its justice bearings. It required only one judge to say in conference in holding that Mr M is independent, are we being fair to the battles? The facts would have been re-examined and the finding abandoned is unsustainable. It is important to note that I am not saying that the court would have found that Mr M was not independent simply because any other outcome would be tragic for Mr and Mrs Bartle. Another I am asserting that the court had not lost its moral compass, its justice bearings. It would have been motivated to have a closer regard to the facts and reach the correct decision in law. And so the opportunity was lost to exercise the wide remedial powers conferred on the courts under the statute. It would have been possible, for example, to vest the freehold in the mortgagee and give Mr and Mrs Bartle a life of interest in the property. Or simply, as I would have preferred to deprive the mortgagee of the fruits of its predatory lending. The hallmark of legal reasoning is analytical and logical thinking. That is what my colleagues at the law school so faithfully teach. The absence of the moral or justice compass in this case however means that this analytical and logical thinking was also absent. Determining whether Mr M was independent became an exercise in assembling empty words doing nothing more nor less than playing a word game. And so the court reversed the decision of the court of appeal and Mr and Mrs Bartle at once became homeless and destitute. Now tomorrow after 16 years my sinecure at the law school comes to an end. The time I have been there has been one of the happiest times of my professional life. My respect and admiration for the faculty members is unbounded. I have found them to be dedicated and conscientious to a fault. They are true professionals. I've come to love them and I will miss them. And they have given me but they have given me a gift beyond all value from my the beginning of my studies that I admit another and some would say inferior law school I have loved the law. My presence at the law school has permitted me to prolong and indulge that love of the law for 16 years 16 years past my statutory use by date and for that I will be forever grateful to the faculty and tonight the Dean and the law faculty have given me the opportunity to finish off talking or rambling about justice and for that I will also be forever grateful. For as to tonight's lecture may finally clarify I am under no illusion myself although I have ever loved the law I have loved justice more. Thank you for your attendance. It's just straight for the both of us. Questions if you like. Edmund said that he's happy to take a few questions so if anyone will like to do so this is your opportunity. Any questions anyone wants to ask lawyers and academics surely they must have some. Don't press them now. No it sounds like people are wanting to ask questions. I can't I can't return a question. Thank you Jane. I think the mood of the audience is that actually like to finish where you left things that you love the law and love justice more and rather than question you on that to accept that and that being the case and there will be the chance obviously for people to ask questions individually or talk to Ted afterwards so the vote of thanks today is going to be given by Ted's granddaughter and so I'd ask you to welcome Aroha Chinchunwala. Stern critic and coach of Ted I don't know where he got that from but thank you. The Ront Hon Sir Edmund Thomas LLB Bracket NZ Bracket LLD Bracket VZM QC say that 10 times over to give a vote of thanks but after the well deserved applause by you all what I've prepared now seems a little redundant so for 2-3 minutes that I have on mic I guess I'll try and for a little time although I do have some pretty good stories of the great Royal Ted Thomas at my sleeve I was about 5 years old I'd already learnt a lot about my grandad's passion for justice Every Friday he'd pick me up from school and we'd go to the BID Café in Bremueira where we would indulge in cakes and hot beverages we would talk about a variety of things but often it was one particular topic which kept reoccurring which surprise surprise was justice That's right this 5-year-old right here listened to ideas on what it takes to be a good lawyer and a supreme court judge rather than talking about the average world discussions of fairies or unicorns and the things we talked about on regards to justice were pretty intense He used to give me scenarios of some sort where I had to justify whether or not something was just or unjust One example of this was the boy and the cookie jar This was about the little boy who was called by his mother with his hand in the cookie jar and sent straight to his room for time out The facts always changed with the scenario Sometimes the little boy was putting the cookie back in the cookie jar because it was on the bench and the flies were getting at it At other times the little boy had already eaten one cookie and was getting another This did not matter I strongly believed that the mother was still obliged to give the boy the opportunity to defend himself before being given time out No matter how suspicious the situation may have looked To me this is only common sense And when Grandad was done with the little boy with his hand in the cookie jar we moved on to another scenario This time a train was coming down the track and if it goes straight ahead it will hit the little boy and his 12 puppies or it will hit the two old ladies and the convict But I'd be changing what was already set for the juncture in this instance We moved to choose which train the track would go down and the little boy was saved Mainly because I do love puppies but that's not the point We and the dog vs the old ladies and the criminal were replaced by Grandad with other characters Such as if I should save the 12 babies or the fat greedy man the famous celebrity or the woman who had 5 kids to look after when she got home May I just mention again 5 people, 5 years old between making a choice or letting fate decide was quite a challenge to say the least but both these situations taught me a lot about the difficulty of making and justifying the choices I and we make Justice is an important topic for me and I think you can all connect the dots as to why I am very happy to have learnt about justice at a very early age as it has given me a lot of the base values I still have today I can safely say that you Grandad have taught me a lot about justice in death and I hope I can understand more about it when I'm older I would also like to give you a big thank you for inspiring me as well as other grandkids and other members of the family too You have taught us all a lot and I'm glad to have had you in my life but I'm sure all enjoyed Grandad's venture Thank you so much for listening and I would ask you to give him a round of applause This time go crazy and claim even louder than before Thank you