Neil Sands
As he drew the curtain on a two-decade judicial career this week, outgoing Court of Appeal President Justice Mark Cooper was hailed as a trailblazer for Māori lawyers, a profession-leading expert on resource management and local government law and an empathetic source of aroha for grieving families after the Christchurch earthquakes.
At his final sitting in Wellington on Tuesday, colleagues also described Cooper as a “remarkable legal mind” and, perhaps more surprisingly, “the thinking-man’s Mr Bean”.
But the common theme among those paying tribute to the judge was the warmth and sense of humour he displayed to colleagues, both as a practising lawyer and after his elevation to the bench.
“[It] was noted and enjoyed by all of us, but frankly it mattered,” said Stephen Mills KC who served as counsel assisting the Canterbury Earthquakes Royal Commission, which Cooper chaired.
“It mattered in keeping spirits up in circumstances that were very tough.”
Cooper himself recalled that before joining the bench he was “prone to mimicry”, often imitating eminent judges of the day, partly as payback for harsh treatment but also as a kind of group coping mechanism.
“I can still do some of them. They remain in the memory with a kind of nightmarish quality,” he said.
“In those days, when judges could be very challenging and intimidating to young counsel, there was an element of revenge in this, exacted behind their back, of course, with other similarly traumatised young lawyers in the audience.”
Caustic wit
After graduating from the University of Auckland in 1979, Cooper joined Butler White & Hanna, which was later folded into Simpson Grierson, specialising in local government.
He became a barrister in 1997, a silk in 2000 and was appointed to the High Court in 2004, serving as chair of the earthquakes royal commission in 2011-2012. He was elevated to the Court of Appeal in 2014 and became President in 2022.
Solicitor General Una Jagose KC passed on a message of appreciation from Attorney-General Judith Collins KC and paid her own tribute to Cooper’s “immense service to our country as a judge”.
New Zealand Law Society vice-president David Campbell said Cooper possessed “a remarkable legal mind, precise approach to problems and a reflective nature”.
Campbell said when Cooper was a practising lawyer, these attributes helped him dominate the field of local government. He then became “the model of judicial excellence” on the bench.
“I want to touch on your honour’s wit,” he said.
“It’s been variously described as iconic, by some as caustic and most memorably as Rowan Atkinson-ese. Always entertaining, with the capacity to make the dry and dull humorous.”
John Katz KC, who welcomed Cooper to his team at Butler White & Hanna straight out of law school in 1979, continued the theme, describing his former colleague as “the thinking-man’s Mr Bean”.
He said this, combined with Cooper’s kindness, helped ease the “relentless, almost oppressive” workload undertaken in the Court of Appeal.
Katz recalled Carter Holt Harvey v Rolls Royce, a marathon civil trial that Cooper presided over in the High Court, saying that despite the testing nature of the case, it was conducted according to “the three Cs”- courtesy, consideration and conviviality.
“Your legacy lives on in the memories of those who appeared before you, whether as litigants or as counsel, and of the many judgments that you have delivered,” he said.
A bit frightened
Chairing the Canterbury Earthquakes Royal Commission was arguably Cooper’s highest-profile role.
The inquiry examined the devastating disaster which claimed 185 lives in 2011, 175 of them due to building failures.
The commission’s seven-volume report ran to 1,100 pages and resulted in major changes to building design and construction practice across New Zealand.
“[It] was a highly technical, challenging exercise that would have tested the skills, knowledge and understanding of any lawyer… You succeeded admirably in the task,” Katz said.
Mills said Cooper handled the assignment with characteristic sensitivity.
“You were an inspired choice,” he said. “You brought an incisive mind to the task, but you also brought empathy and kindness that helped to heal some of the shattering that occurred in Christchurch.”
Aftershocks were still rattling Christchurch as the Royal Commission went about its work and Cooper admitted “it was possible, if you were on your own, to feel a bit up against it, a bit frightened”.
He praised the inquiry’s staff for the compassionate way they interacted with the bereaved in the stricken city.
“There was a period after the police had done their thing and remains had been identified when there was no coordinated response by government services,” he said.
“People used to come to the commission because they knew they’d be listened to. It was not actually anything to do with our work really, it was a service that staff performed.”
Lasting legacy
Natalie Coates, co-president of Te Hunga Roia Māori-the Māori Law Society, said Cooper had led the way for tangata whenua in the legal profession.
She said he was among the first Māori to take the silk, then became the first appointed as a Court of Appeal judge in 2014, before becoming President.
Coates said Cooper also effected change after becoming chair of the New Zealand Council of Legal Education in 2018, describing him as “the architect and catalyst” for the plan to introduce tikanga education into New Zealand’s law schools from next year.
“Within the law degree, starting next year, every core compulsory subject will be required to have a tikanga dimension taught within it… [and] for students to graduate, they will also need to take a separate standalone tikanga paper,” she said.
Coates said it was a bold move “that will leave a long, lasting legacy and a permanent imprint on the legal landscape”.
“You’ll not be forgotten for your role in that, assuming we get it over the final line,” she said.
Cooper said he was proud of his work in this area.
“It’s high time tikanga law was recognised in a systematic way in the LLB degree and I’m pleased I was able to help further that,” he said.
During the sitting, Mills questioned the compulsory retirement rules for judges that led to Cooper stepping down.
“I’ve long thought that the 70th year for retirement of judges is too soon. Too many fine legal minds are being lost too early, in my view, and yours is one of them.”
Cooper wrapped up the sitting with a story about a failed job interview shortly after graduation, when he was asked “what is your view of the law?” and blurted out “oh, I’m in favour of it”.
“I’m proud to have been a judge for over 20 years. I’m still in favour of the law and I hope I’ve done some good.”
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