Robin Brunskill Cooke, Baron Cooke of Thorndon, (9 May 1926 – 30 August 2006) was a New Zealand judge and later a British

Law Lord Lords of Appeal in Ordinary, commonly known as Law Lords, were judges appointed under the Appellate Jurisdiction Act 1876 to the British House of Lords, as a committee of the House, effectively to exercise the judicial functions of the House of ...

and member of the

Judicial Committee of the Privy Council The Judicial Committee of the Privy Council (JCPC) is the highest court of appeal for the Crown Dependencies, the British Overseas Territories, some Commonwealth countries and a few institutions in the United Kingdom. Established on 14 August ...

. He is widely considered one of New Zealand's most influential jurists, and is the only New Zealand judge to have sat in the

House of Lords The House of Lords is the upper house of the Parliament of the United Kingdom. Like the lower house, the House of Commons of the United Kingdom, House of Commons, it meets in the Palace of Westminster in London, England. One of the oldest ext ...

. He was a Non-Permanent Judge of the Court of Final Appeal of

Hong Kong Hong Kong)., Legally Hong Kong, China in international treaties and organizations. is a special administrative region of China. With 7.5 million residents in a territory, Hong Kong is the fourth most densely populated region in the wor ...

from 1997 to 2006.

Early life and education

The son of the

Supreme Court In most legal jurisdictions, a supreme court, also known as a court of last resort, apex court, high (or final) court of appeal, and court of final appeal, is the highest court within the hierarchy of courts. Broadly speaking, the decisions of ...

judge Justice Philip Brunskill Cooke and his wife, Valmai, Lord Cooke was born in

Wellington Wellington is the capital city of New Zealand. It is located at the south-western tip of the North Island, between Cook Strait and the Remutaka Range. Wellington is the third-largest city in New Zealand (second largest in the North Island ...

and attended

Wanganui Collegiate School Whanganui Collegiate School is a state-integrated, coeducational, day and boarding secondary school located in Whanganui, in the Manawatū-Whanganui region of New Zealand. Affiliated with the Anglican Church, it is the third oldest school in ...

. He graduated with an LL.M. from Victoria University College, and subsequently studied at

Clare College, Cambridge Clare College is a Colleges of the University of Cambridge, constituent college of the University of Cambridge in Cambridge, England. The college was founded in 1326 as University Hall, making it the second-oldest surviving college of the Unive ...

as a Research Fellow. While on a travelling scholarship, Lord Cooke was awarded an MA in 1954 from Gonville and Caius College,

Cambridge Cambridge ( ) is a List of cities in the United Kingdom, city and non-metropolitan district in the county of Cambridgeshire, England. It is the county town of Cambridgeshire and is located on the River Cam, north of London. As of the 2021 Unit ...

and subsequently a PhD in 1955. In 1952, he married Annette Miller, with whom he had three sons. One of their sons, Francis, was appointed to the High Court in 2018 and the Court of Appeal in 2024.

Legal career

Cooke was admitted to the New Zealand bar in 1950, and was also admitted to the English bar as a

barrister A barrister is a type of lawyer in common law jurisdiction (area), jurisdictions. Barristers mostly specialise in courtroom advocacy and litigation. Their tasks include arguing cases in courts and tribunals, drafting legal pleadings, jurisprud ...

Inner Temple The Honourable Society of the Inner Temple, commonly known as the Inner Temple, is one of the four Inns of Court and is a professional association for barristers and judges. To be called to the Bar and practice as a barrister in England and Wa ...

in 1954. He practised law in New Zealand as a barrister for almost twenty years, and was appointed as a

Queen's Counsel A King's Counsel (Post-nominal letters, post-nominal initials KC) is a senior lawyer appointed by the monarch (or their Viceroy, viceregal representative) of some Commonwealth realms as a "Counsel learned in the law". When the reigning monarc ...

in 1964. At age 38, that was the youngest appointment of a QC in New Zealand; the young age record had previously been held by his father, who had been appointed aged 43. In 1972, he was appointed as a Judge of the (former) New Zealand Supreme Court (now High Court). He held this position until 1976 when he was elevated to the New Zealand Court of Appeal (at that time the country's highest local court). In 1986, he was appointed as President of that Court – a position he was to hold for the next 10 years. On his retirement from the Court of Appeal in 1996 Cook was granted a British

life peerage In the United Kingdom, life peers are appointed members of the peerage whose titles cannot be inherited, in contrast to hereditary peers. Life peers are appointed by the monarch on the advice of the prime minister. With the exception of the D ...

Baron Baron is a rank of nobility or title of honour, often Hereditary title, hereditary, in various European countries, either current or historical. The female equivalent is baroness. Typically, the title denotes an aristocrat who ranks higher than ...

Cooke of Thorndon, (a suburb of

) in New Zealand and of

in the County of Cambridgeshire, becoming a member of the Appellate Committee of the House of Lords where he sat as a Lord of Appeal (Law Lord) until his retirement in 2001. He also sat (from time to time) as President in the Courts of Appeal of

Samoa Samoa, officially the Independent State of Samoa and known until 1997 as Western Samoa, is an island country in Polynesia, part of Oceania, in the South Pacific Ocean. It consists of two main islands (Savai'i and Upolu), two smaller, inhabited ...

, the

Cook Islands The Cook Islands is an island country in Polynesia, part of Oceania in the South Pacific Ocean. It consists of 15 islands whose total land area is approximately . The Cook Islands' Exclusive Economic Zone (EEZ) covers of ocean. Avarua is its ...

and

Kiribati Kiribati, officially the Republic of Kiribati, is an island country in the Micronesia subregion of Oceania in the central Pacific Ocean. Its permanent population is over 119,000 as of the 2020 census, and more than half live on Tarawa. The st ...

; as well as being a Non-Permanent Judge on the Hong Kong Court of Final Appeal and a Judge of the Supreme Court of Fiji. Cooke was the only

Commonwealth A commonwealth is a traditional English term for a political community founded for the common good. The noun "commonwealth", meaning "public welfare, general good or advantage", dates from the 15th century. Originally a phrase (the common-wealth ...

judge in the past century to sit in the Appellate Committee of the House of Lords on United Kingdom appeals. He adjudicated on nearly a hundred cases in the House of Lords and the Privy Council; his final case before retirement was '' Delaware v City of Westminster'', in October 2001. Cooke died in Wellington on 30 August 2006. His wife, Annette, Lady Cooke, died in 2024.

Legal philosophy and influence on the law

Cooke is New Zealand's best known jurist, and is regarded as perhaps the finest judge which the country has produced. He is most widely known for his contribution to the development of

administrative law Administrative law is a division of law governing the activities of government agency, executive branch agencies of government. Administrative law includes executive branch rulemaking (executive branch rules are generally referred to as "regul ...

(both in New Zealand and internationally) and his influence in the development of legal recognition for the

Treaty of Waitangi The Treaty of Waitangi (), sometimes referred to as ''Te Tiriti'', is a document of central importance to the history of New Zealand, Constitution of New Zealand, its constitution, and its national mythos. It has played a major role in the tr ...

. Cooke was a champion of the need to develop independent jurisprudence for New Zealand. In 1956, having recently returned from the United Kingdom, he criticised New Zealand's judiciary for its "unquestioning compliance" with English case law. By 1988, Lord Cooke was pleased to be able to report that "in virtually every major field of law New Zealand law is radically, or at least very considerably, different from English law". This change was thanks in part to his own efforts. Yet Lord Cooke did not believe that different jurisdictions had nothing to learn from each other. Rather, he believed that " mmon denominators may be usefully sought, as long as the process is not compelled from outside and the national ethos is allowed its own weight."

Administrative law jurisprudence

Lord Cooke took what could be considered a

natural law Natural law (, ) is a Philosophy, philosophical and legal theory that posits the existence of a set of inherent laws derived from nature and universal moral principles, which are discoverable through reason. In ethics, natural law theory asserts ...

approach to public law, often seeking to assert a right for the courts to intervene where none was prescribed in legislation. In ''Fraser v State Services Commission'' he famously made the comment that "it is arguable that some common law rights may go so deep that even Parliament cannot be accepted by the Courts to have destroyed them." This view contradicted the dominant parliamentary supremacy theories of A. V. Dicey, which had guided common law courts since the late 19th century. However, Cooke's position recalled a similar opinion expressed by the famous 17th century English jurist, Sir Edward Coke. In ''Bulk Gas Users Group v Attorney-General'', the then Justice Cooke delivered the leading judgment of the Court of Appeal. Cooke held that a privative clause in the Commerce Act 1975 did not prevent the courts from reviewing a decision made by the Secretary of Energy. He observed that "the Courts of general jurisdiction will be slow to conclude" that they are not permitted to rule on a question of law. This reluctance to accept the ouster of the court's jurisdiction was characteristic of Cooke's views on the importance of the courts' role in upholding the rule of law. He took a similar approach in 1985, when he delivered the judgment of the Court of Appeal in the case of ''Finnigan v New Zealand Rugby Football Union'' allowing the appeal of lawyers seeking an injunction against the NZRFU's proposed tour of South Africa. The proposed tour followed the controversial 1981 Springbok Tour, and was cancelled after the High Court re-heard the case in light of the Court of Appeal's judgment. Perhaps the most famous public law case which Cooke decided came before him when he was President of the

Court of Appeal An appellate court, commonly called a court of appeal(s), appeal court, court of second instance or second instance court, is any court of law that is empowered to Hearing (law), hear a Legal case, case upon appeal from a trial court or other ...

. In '' Simpson v Attorney-General'' (commonly referred to as ''Baigent's case''), the Court held that it is implicit in the New Zealand Bill of Rights Act 1990 that breaches of human rights by public officials could result in a claim for

damages At common law, damages are a remedy in the form of a monetary award to be paid to a claimant as compensation for loss or injury. To warrant the award, the claimant must show that a breach of duty has caused foreseeable loss. To be recognized at ...

— even though there is no such provision in the Act itself. In the case, the Police had mistakenly carried out a search warrant at the wrong address. Because the occupant of the house was not charged with any crime, there was no obvious remedy for the Police's illegal search (exclusion of improperly obtained evidence being the usual remedy applied in Bill of Rights Act cases). In delivering the leading judgment, President Cooke remarked that "we he Courtwould fail in our duty if we did not give an effective remedy to a person whose legislatively affirmed rights have been infringed".

Treaty of Waitangi jurisprudence

In 1987, Cooke delivered the judgment of the Court of Appeal in the landmark case of ''New Zealand Maori Council'' v ''Attorney-General'', which sought to clarify what Parliament meant by section 9 of the State Owned Enterprises Act 1986. The Act stated "Nothing in this act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi", but what those principles might be was left to the courts to decide. The principles elicited by President Cooke gave legal recognition to the special relationship between the Crown and Maori. Cooke held that "the Treaty created an enduring relationship of a fiduciary nature akin to a partnership, each party accepting a positive duty to act in good faith, fairly, reasonably and honourably towards the other". This principle of partnership continues to shape the legal relations between the Crown and Maori to this day.

Legal commentary

Lord Cooke's often bold views occasionally drew criticism. In one noteworthy example, some of Australia's most senior judges co-wrote the Preface of ''Meagher, Gummow and Lehane’s Equity, Doctrines and Remedies'', where they blamed "Lord Cooke's misguided endeavours" for what they saw as the Court of Appeal's unprincipled decisions concerning the merger of common law and equitable doctrines in New Zealand. The authors went on to remark " at one man could, in a few years, cause such destruction exposes the fragility of contemporary legal systems and the need for vigilant exposure and rooting out of error". However, not all their colleagues shared such concerns. Justice Kirby (of the

High Court of Australia The High Court of Australia is the apex court of the Australian legal system. It exercises original and appellate jurisdiction on matters specified in the Constitution of Australia and supplementary legislation. The High Court was establi ...

), in his 2008 W A Lee Lecture, noted that Lord Cooke's supposedly "heretical" views had in fact been accepted by many prominent jurists in the United Kingdom, including the

. He took issue with the tone of the ''Meagher'' Preface, remarking that "those familiar with the successive 'rooting out' of heretics in England under the later Tudors will recognise the ''genre'' of this denunciatory writing. Burning at the professional stake would seem too kind a fate for such doctrinal rascals." Cooke himself had a formidable extrajudicial and academic presence. From 1992 until 1996, Cooke was General Editor of ''

The Laws of New Zealand ''The Laws of New Zealand'' is an encyclopedia that is intended to provide a reliable statement of the whole law of New Zealand – statutory, regulatory, and judicial. Publication commenced in 1992. It is published by LexisNexis LexisNex ...

'' and selected the original authors for the different titles. He was also a prolific contributor to legal journals, including the '' Law Quarterly Review'', '' Cambridge Law Journal'' and '' New Zealand Law Journal''. In 1996, Lord Cooke delivered the 47th Hamlyn Lecture Series, entitled ''Turning Points of the Common Law''. In each of his four lectures, he focused on a single major case (covering public law, crime, tort and company law) and the influence of that case on the development of the common law as a whole throughout the

Honours and awards

*1955: Yorke Prize *1977:

Knight Bachelor The title of Knight Bachelor is the basic rank granted to a man who has been knighted by the monarch but not inducted as a member of one of the organised Order of chivalry, orders of chivalry; it is a part of the Orders, decorations, and medals ...

in the 1977 New Year Honours *1977: Appointed to the

Privy Council of the United Kingdom The Privy Council, formally His Majesty's Most Honourable Privy Council, is a privy council, formal body of advisers to the sovereign of the United Kingdom. Its members, known as privy counsellors, are mainly senior politicians who are curre ...

*1977: Queen Elizabeth II Silver Jubilee Medal *1986:

Knight Commander of the Order of the British Empire The Most Excellent Order of the British Empire is a British order of chivalry, rewarding valuable service in a wide range of useful activities. It comprises five classes of awards across both civil and military divisions, the most senior two o ...

(KBE) in the 1986 Queen's Birthday Honours *1982: Honorary Fellow of

Gonville and Caius College, Cambridge Gonville and Caius College, commonly known as Caius ( ), is a constituent college of the University of Cambridge in Cambridge, England. Founded in 1348 by Edmund Gonville, it is the fourth-oldest of the University of Cambridge's 31 colleges and ...

*1985: Honorary Bencher of

*1989: Honorary Doctorate of Laws (LLD) from the

Victoria University of Wellington Victoria University of Wellington (), also known by its shorter names "VUW" or "Vic", is a public university, public research university in Wellington, New Zealand. It was established in 1897 by Act of New Zealand Parliament, Parliament, and w ...

*1990: New Zealand 1990 Commemoration Medal *1990: Honorary Doctorate of Laws (LLD) from the

University of Cambridge The University of Cambridge is a Public university, public collegiate university, collegiate research university in Cambridge, England. Founded in 1209, the University of Cambridge is the List of oldest universities in continuous operation, wo ...

*1991: Honorary Doctorate of Civil Law (DCL) from the

University of Oxford The University of Oxford is a collegiate university, collegiate research university in Oxford, England. There is evidence of teaching as early as 1096, making it the oldest university in the English-speaking world and the List of oldest un ...

*1993: Appointed to the

International Commission of Jurists The International Commission of Jurists (ICJ) is an international human rights non-governmental organization. It is supported by an International Secretariat based in Geneva, Switzerland, and staffed by lawyers drawn from a wide range of jurisdi ...

*1996: Created a

Life Peer In the United Kingdom, life peers are appointed members of the peerage whose titles cannot be inherited, in contrast to hereditary peers. Life peers are appointed by the monarch on the advice of the prime minister. With the exception of the D ...

*2002: Additional Member of the Order of New Zealand in the 2002 Queen's Birthday and Golden Jubilee Honours Since 2002 the Law School of Victoria University, Wellington has held an annual lecture in his honour, predominately in the area of constitutional and administrative law.

Cases, articles and books

;Notable cases *'' Finnigan v New Zealand Rugby Football Union'' 9852 NZLR 159 *'' New Zealand Maori Council v Attorney-General'' 9871 NZLR 641 *'' R v Baker'' 9891 NZLR 738 *'' Trevor Ivory Ltd v Anderson '' 9922 NZLR 517 *'' Taylor v New Zealand Poultry Board'' 9841 NZLR 394 *'' Flickinger v Crown Colony of Hong Kong''

991 Year 991 (Roman numerals, CMXCI) was a common year starting on Thursday of the Julian calendar. Events * March 1: In Rouen, Pope John XV ratifies the first Peace and Truce of God, Truce of God, between Æthelred the Unready and Richard I o ...

1 NZLR 439 *''

Bulk Gas Users Group v Attorney-General Bulk can refer to: Industry * Bulk cargo * Bulk carrier * Bulk liquids * Bulk mail * Bulk material handling * Bulk pack, packaged bulk materials/products * Bulk purchasing * Baking * Bulk fermentation, the period after mixing when dough is left ...

'' 983NZLR 129 *'' Fraser v State Services Commission'' 9841 NZLR 116 *'' Horsburgh v NZ Meat Processors Industrial Union of Workers'' 9881 NZLR 698 *'' Taupo Borough Council v Birnie'' 9782 NZLR 397 ;Notable articles *Cooke, Robin "An Impossible Distinction" (1991) 107 '' Law Quarterly Review'' 46 *Cooke, Robin "The Supreme Tribunal of the British Commonwealth?" (1956) 32 NZLJ 233 *Cooke, Robin "Fundamentals" 988NZLJ 158 *Cooke, Robin "The Struggle for Simplicity in Administrative Law" in Michael Taggart (ed) ''Judicial Review of Administrative Action in the 1980s: Problems and Prospects'' (Oxford University Press, Auckland, 1986) *Cooke, Robin "Fairness" (1989) VUWLR 421 *Cooke, Robin "Divergences – England, Australia and New Zealand" 983NZLJ 297 *Lord Cooke "The Dream of an International Common Law" in Cheryl Saunders (ed) ''Courts of Final Jurisdiction: The Mason Court in Australia'' (Federation Press, Sydney, 1996) *Lord Cooke "The Common Law Through Commonwealth Eyes" (1998) 2 Inter Alia 45 *Cooke, Robin "The New Zealand National Legal Identity" (1987) 3 Canta LR 171 *Cooke, Robin "The Changing Face of Administrative Law" 960NZLJ 128 *Cooke, Robin "The Harkness Henry Lecture: the Challenge of Treaty of Waitangi Jurisprudence" (1994) 2 Waikato L Rev 1 ;Books * *

Coat of arms

References

External links

*
Obituary
''

The Times ''The Times'' is a British Newspaper#Daily, daily Newspaper#National, national newspaper based in London. It began in 1785 under the title ''The Daily Universal Register'', adopting its modern name on 1 January 1788. ''The Times'' and its si ...

'', 22 September 2006
Obituary
''

The Daily Telegraph ''The Daily Telegraph'', known online and elsewhere as ''The Telegraph'', is a British daily broadsheet conservative newspaper published in London by Telegraph Media Group and distributed in the United Kingdom and internationally. It was found ...

'', 26 September 2006
Announcement of his death at the House of Lords
House of Lords minutes of proceedings, 9 October 2006
Eulogy
4 September 2006 (PDF) * , - {{DEFAULTSORT:Cooke Of Thorndon, Robin Brunskill Cooke, Baron 1926 births 2006 deaths Alumni of Clare College, Cambridge Alumni of Gonville and Caius College, Cambridge New Zealand judges on the courts of Hong Kong Justices of the Court of Final Appeal (Hong Kong) Knights Bachelor Law lords New Zealand members of the Privy Council of the United Kingdom 20th-century New Zealand judges Victoria University of Wellington alumni Court of Appeal of New Zealand judges High Court of New Zealand judges Members of the Judicial Committee of the Privy Council New Zealand judges on the courts of Samoa New Zealand judges on the courts of the Cook Islands New Zealand judges on the courts of Kiribati People educated at Whanganui Collegiate School New Zealand recipients of a British peerage New Zealand judges on the courts of Fiji New Zealand King's Counsel New Zealand Knights Commander of the Order of the British Empire People educated at Wellesley College, New Zealand Life peers created by Elizabeth II