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Judge Phil Recordon hangs up his gown

16 Jun 2023

| Author: Reweti Kohere

After nearly half a century surrounded by the law, Judge Philip Recordon is hanging up his gown. The District Court judge’s acting warrant may be expiring but he’s got a few more months left to write decisions and tidy his desk.

“That’s why my name didn’t come up,” he says, after LawNews noticed his absence on the list of District Court judges.

Before his appointment to the Bench in 2003, Judge Recordon practised as a barrister sole for a couple of years, and before that as a lawyer, covering criminal law, civil litigation, immigration, tenancy and tribunal work. Mostly serving south Auckland communities, his legal career has “always very much [about] the underdog, whatever I did”, he says. “It was for the people who needed help.”

The Auckland Council for Civil Liberties, New Zealand Lawyers for Nuclear Disarmament, Lifeline, Richmond Fellowship, The Right Track, Māori and Pacific Wardens and trustee for several mental health and Māori health trusts – these are just some of the community-based organisations he has been involved with. “I was very interested in the rights of people not to suffer indignities.”

All Blacks tour

Nothing illustrates his attitude more than his decision, almost 40 years ago, to put his name to a lawsuit that challenged one of New Zealand’s most powerful organisations.

If you Google “Judge Recordon” and “rugby”, then search results will tell you he was one of two lawyers – supported by a formidable legal team including Sir Ted Thomas KC, Sir Rodney Hansen KC, former Chief Justice Dame Sian Elias, John Marshall KC, and Thomas’ son Simon – who challenged the New Zealand Rugby Union’s decision to send the All Blacks to apartheid South Africa in 1985.

Their essential claim was that the rugby union’s decision didn’t comply with its own rule to “promote, foster and develop” the sport in New Zealand. The union moved to strike out the judicial review claim on the basis it was frivolous, vexatious and an abuse of power.

Four years after the divisive, traumatic 1981 Springbok tour, history records Recordon and his coplaintiff, lawyer Paddy Finnigan, ultimately succeeded: just six days before the All Blacks were due to depart, Justice Maurice Casey, hearing the substantive case, granted an interim injunction that grounded the team in New Zealand until he could pass judgment. The rugby union announced it wouldn’t appeal the decision. The tour was cancelled.

Even getting to trial had been difficult, though. Chief Justice Sir Ron Davison initially struck out the plaintiffs’ case, finding they didn’t have a direct enough connection to the union to mount a challenge. The Court of Appeal, however, found the lawyers had standing. Among a list of factors, Finnigan and Recordon were linked to the union by a “chain of contracts” and, unless they were accorded standing, there would be no effective way to test whether the administrative body had acted lawfully.

In a famous extract, Justice Robin Cooke said the plaintiffs ought not to be dismissed as “mere busybodies, cranks or other mischief-makers”. In 1981, many protestors, “normally law-abiding citizens”, had been subjected to the rule of law, Justice Cooke wrote. “It is now no less appropriate that the lawfulness of the union’s decision under its own constitution to arrange the proposed tour should be open to test in the courts.”

While the court never fully considered the lawfulness of the rugby union’s decision, four decade on the lawyers’ case serves as a great example of the law being used as an effective tool, Judge Recordon says.

But “I always felt a bit of a fraud [for] using the law to do what the country should have been persuaded to do”. While lawyers who challenged the union received abuse and, in Recordon’s case, death threats, they were also credited with having stopped the tour. Such credit glosses over the groundwork that Halt All Racist Tours (Hart) founding members Trevor Richards and John Minto and other protest groups had done, often in the face of violent police retaliation, Judge Recordon says. “And then we come in as smartass lawyers and take a case that wins. I know that’s not how it was, but that’s how it felt for me.”

He’s proud of their effort and the end result, yet wistful that New Zealand hadn’t been braver earlier on in making a stand against South Africa’s apartheid regime. “We should have made our position much clearer and unequivocal – and it [shouldn’t have mattered] which government was in place.”

A stirrer

While on the Bench, Judge Recordon still felt he could approach his judicial work in the same way he had served south Auckland as a lawyer. “Right from day one, [I did] what I thought was fair and right and just and within the terms of the law, but trying to look at the individual and their needs and [those] of the victim,” he says, acknowledging he was never as effective as some of his colleagues such as Judge Lisa Tremewan, who, in 2012 and alongside Judge Ema Aitken, started Te Whare Whakapiki Wairua (The house that lifts the spirit), otherwise known as the country’s first adult Alcohol and Other Drug Treatment Court.

Or Judge Tony FitzGerald, who, in 2010, established Te Kooti o Timatanga Hou (The Court of New Beginnings), a court in Auckland for offenders who are homeless. Or even Chief District Court Judge Heemi Taumaunu, who’s leading Te Ao Mārama, an initiative to incorporate the hallmarks of specialist and therapeutic courts – solution-focused judging, screening for addiction, neurodiversity, and mental health issues, the use of plain language, revised courtroom layouts, and tikanga Māori – into the District Court’s mainstream work in its criminal and family divisions.

They have achieved something, Judge Recordon says. “I was more a stirrer and would give people ideas and they would take them on and complete them. I was never very good at finishing things off, but would always be there in the background helping.”

Judge Recordon’s compassion and empathy is so strong that he says he would “genuinely be prepared to basically sacrifice myself for some of the people who come in front of me because everyone is equally as important. That includes our twentieth-time wifebeater. You’ve just got to try to keep working with them and treat them as an individual”, he says. “There are a few rottweilers whom we do something about. Putting them in prison doesn’t generally help but obviously, they have to go to prison.

“That’s why I get so angry with the government and people not changing the laws, which need changing, simple tweaking.” An example? Subpart 2B of the Sentencing Act 2002 is headed “judicial monitoring”, which permits sentencing judges to be kept informed regularly of an offender’s progress and compliance with either their sentence of intensive supervision or home detention. The sentencing option is primarily aimed at cases where a community-based sentence or imprisonment is finely balanced. But Judge Recordon notes judicial monitoring isn’t available for offenders who have been sentenced to prison for up to and including two years and are released on conditions.

Lasting impressions

“If you were to contact Heemi Taumaunu and say ‘would you regard me as maybe a bit of a stirrer?’, you’d get a big laugh. And some of the old retired chief judges would say exactly the same.” While Chief Judge Taumaunu wasn’t available for an interview, he did share comments he had made at a special sitting of the Manukau District Court to celebrate Judge Recordon’s service “to this Bench, your community, and Aotearoa as a whole”.

In attendance were Chief Justice Dame Helen Winkelmann, Principal Youth Court Judge John Walker, Judge Walker’s successor, Judge Ida Malosi, South Auckland Executive Judge Jonny Moses, former Governor-General Dame Silvia Cartwright (the first female Chief District Court Judge), representatives of Tainui waka and Ngāti Whātua ki Orakei (in acknowledgment of Judge Recordon’s longstanding relationship with tangata whenua), Pasifika elders, other Auckland judges, King’s Counsel, members of the South Auckland Bar, Crown Solicitor Natalie Walker and, most importantly, Judge Recordon’s whānau, whom Chief Judge Taumaunau thanked for their “support, patience and understanding”.

Judge Recordon has been a role model for many lawyers and judges, “including myself”, Chief Judge Taumaunu said. “When I joined you at the Waitakere District Court in 2005, I was a young judge and you took me under your wing and mentored me. I fondly recall that you were happy to drive me anywhere in your combi van, especially if it meant that I would agree to play for your golden oldies rugby team. “Judge Recordon, you have left a lasting impression upon me and many others on our bench. You have strived to ensure that all people who come to court to seek justice are treated in a respectful manner that is both fair and just,” the chief judge said. “This approach lies at the heart of the ‘Te Ao Mārama – Enhancing Justice For All’ kaupapa for the District Court. It is an approach that you have adopted throughout your whole career in the law.”

Doing things differently

“The Te Ao Mārama gown is offered to judges when the initiative is formally developed in each court. Although the initiative has yet to formally commence here at Manukau, I am very pleased that you are able to wear the Te Ao Mārama gown on this special occasion today,” Chief Judge Taumaunu said. “It is a fitting tribute to you and to your contribution to our Bench.”

Judge Recordon tells LawNews his early involvement in mental health and disability organisations led to an “early discovery” of some of the principles underlining more therapeutic approaches to justice. “It’s quite exciting, when I think of hopefully what our courts can do in the future with Te Ao Mārama,” he says. “But they’re going to need a lot more resource than they’ve got for certain because if you’re going to be dealing with people’s problems, which are causative of their criminal activities, then you’re going to have to have a lot of people and resource, because otherwise it’s going to be very frustrating.”

Asked if he shared Judge Recordon’s concerns, Chief Judge Taumaunu said he welcomed the initial four years of funding, set at just over $47 million, which was committed in Budget 2022 to “develop, test and refine” Te Ao Mārama. “A business case for how the funding will be allocated has recently been agreed. A program team is being established within the Ministry of Justice. The long-term intention is to develop the Te Ao Mārama initiative in every District Court location in the country over time,” he said. Currently, the program has been announced in Kirikiriroa Hamilton, Tairāwhiti Gisborne, and Kaitāia.

Judge Recordon says many people who come before the courts have ongoing problems, and a lot of them are very young. “They’re maybe halfway down the cliff and they’re sort of floundering a wee bit. But there’s still room to haul them back up again. [There’s] plenty of time for most of them if you put the resource in. “No one wants to go right down to the bottom of the cliff. Maybe one in 20 is hell-bent on going to the bottom, but most of them don’t want to go. They want some help. They don’t want to smash up their partners and get into trouble.” A safety net then, is what Te Ao Mārama aims to unfurl. “Society has a responsibility to put that in place and to make sure it doesn’t have holes in it,” Judge Recordon says.

Twenty years on the Bench. Did he enjoy it? As Judge Recordon responds, his voice rises as if he’s still thinking through an answer he’s already voiced. “Yeah? I do now. I didn’t initially. But only now because I think I can help people. I didn’t initially because I thought I was just part of the system. But it didn’t take me long to realise you can do things that are different.” Do things differently – and that makes society a better place. ■

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