Winston Peters and Brian Henry: mavericks in arms
BRIAN HENRY hasn't sought the baubles of the law. He could have been rich: "Barristers have a licence to make money," he says, "and if you're a QC you get a licence to print money."
But he also wanted to help people and to sleep well at night, so he regularly represents clients for nothing. His most famous non-paying customer is Winston Peters.
A close friend says Henry went over the top when he told the privileges committee that he and Peters were "blood brothers". But there was truth in it. Together they have fought against Big Money and its expensive QCs. Henry, 57, was Peters' lawyer at the 1990s Winebox hearings on alleged tax fraud by rich businessmen.
The cause runs deep for Brian Henry, whose father was a rich businessman "who didn't believe the company was just a money-making machine", he told the Sunday Star-Times. "It was also about the people who worked in it." For Jack Henry, the resident director in Tokoroa of the giant Forest Products company, "it wasn't all about money".
Brian Henry detested the sell-off of state assets in the 1980s and 1990s, and the way both Labour and National governments spent hundreds of millions bailing out the BNZ. In all this he was in passionate agreement with Peters. There were other parallels too. Peters is a maverick politician, and Henry is a maverick lawyer. He has upset powerful people. Some say that is why he has never been made a QC, although he has applied "every year since 1989" to become one.
There was a horde of ironies, then, attending the blood brothers' appearance before parliament's privileges committee last week. The pair, who had crusaded against money-go-rounds and fancy financial footwork, now faced hard questions about their own monetary arrangements. Was Henry's non-fee work for Peters just a way of avoiding the rules of disclosure for party political donations? Did Henry's voluntary labour allow Peters to avoid parliamentary rules about disclosure of gifts?
The blood brothers' many enemies must have been smacking their lips.
Of course, it's not true that Henry does all his New Zealand First work for nothing. He told the committee he did not bill Peters, but he could fundraise his fees. He said he received $100,000 from expatriate tycoon Owen Glenn as payment for his work on Peters electoral challenge over the 2005 Tauranga electorate result. And by the end of the week, Peters declared that he had in fact reimbursed Henry for the $40,000 court costs he had stumped up for the minister after the failed electoral petition.
HENRY'S CRITICS cannot, however, claim that the non-fee work for Peters was unique for him. He has worked for free for many clients - and in some famous cases.
He has been representing Susan Couch, the badly wounded survivor of the Mt Wellington RSA triple murders in 2001. In June this year Henry scored a notable legal victory when the Supreme Court ruled that Couch could sue the Corrections Department for damages. Couch told the Star-Times that Henry had never charged for his work on what had been a very long case.
"I think he's a lovely man who just stands up for what he believes in."
Garth McVicar, of the Sensible Sentencing Trust, which has championed the case, says Henry has a gruff manner and he calls a spade a spade.
"When you first meet him, you wouldn't pick that he's got a compassionate bone in his body. He will use as few words as possible to say what needs to be said. But to do the sort of work he does, he's obviously a very compassionate guy and as I've got to know him better I've realised that he's very, very community-minded."
Dennis Gates, a friend of Henry's who also acts as his instructing solicitor, says he has worked with him in two cases involving "buy-back" schemes in South Auckland - and once again, for no fee. These schemes targeted "unsophisticated people in financial strife" who would sell their house to get money, rent it back in the meantime and have the chance to buy the house back later at a higher price.
"The inevitable happened," Gates told the Star-Times. He and Henry had taken two cases, which featured on TVNZ's Fair Go programme, to save families' homes.
"Brian and I could see what those things were doing to the community," Gates says. "We could see how they were put together by lawyers who just completely ignored the effect those deals were having." They had been involved in other cases for little or no fee. And yet when Henry worked for Peters for nothing, Gates says sarcastically, "apparently it's illegal".
Look, he says, "if Brian was in it for the money he wouldn't have taken on the challenging files, because most of the challenging files involve a little bit of unorthodox thinking or application. To advance yourself through the legal profession and to obtain the brownie points to be a QC or whatever, you don't go the unorthodox path".
That was why Henry had failed to become a QC, or silk. "He's had too many successes against people who are in a position to withhold the silk. If you look at the whole silk process, you basically have to get the endorsement of all the other silks, all the High Court judges and the government in power at the time. The way Brian's gone, that's an easy way for them to exact some quiet revenge."
Henry is not wealthy, Gates says. "His assets are modest." He lives modestly - having two glasses of wine "would be a big night out" - and doesn't smoke. He and his second wife Carmel Barnao, who married in February this year, have taken up tango dancing and like to travel whenever work and budget constraints allows it, Gates says.
Henry lives in an apartment in Newmarket, Auckland, and used to share a holiday property on Kawau Island with his first wife, Nadine Jansen. The pair had two children, David, who now works for a finance company in Sydney, and a daughter, Jaime, a student in Auckland. "His family is his priority," Gates says.
Some dispute the idea that Henry has failed to become a QC because of his unorthodoxy. One lawyer said Henry was "one of those awkward ones where you'd want to give him marks for courage, then take marks off again for lack of judgement". Henry was a passionate man whose passion sometimes got the better of him.
Critics point to the Supreme Court judgement in June on the Susan Couch case, which sharply criticised Henry's handling of the case.
The claim, the judges said, "is barely developed. All judges in the Court of Appeal were critical about the pleadings and, it may be inferred, about the lack of adequate analysis in the claim and the arguments advanced in support of it. It must be said that the pleadings remain unsatisfactory". Henry had shifted his position during argument before the court and had failed to change his pleadings to meet the criticism of the Court of Appeal, and so on.
It was, says a QC, a humiliating criticism of the barrister.
Henry doesn't see it that way. He had deliberately pleaded the case in a "wide and waffly" way. A narrowly focused plea was more likely to get overruled. But a "bucket plea", where everything was thrown in, allowed judges to get impatient and take over and say, this is what you should have pleaded. "One idea from the bench is worth 10 from the bar," Henry told the Star-Times.
The judges were very smart lawyers and "if they want to call me a dumb lawyer, then let them". Advocacy was not about the barrister's ego but about getting what he wanted for his client. And this he had managed to do.
Henry says he has been called a maverick and others describe him as unorthodox. He's happy to accept the second tag. "If what I'm doing is unorthodox and I'm helping people, I'm very proud of that." He had taken the Couch case without payment "and I'll take that case as long and as far as it can go. She has had her life flattened and I couldn't walk away from that sort of thing. There is no way in the world I could have slept at night if I'd walked away from her."
LAW RAN in the Henry family. Brian's uncle, Sir Trevor Henry, was a High Court judge, and a cousin, Justice John Henry, was an Appeal Court judge. But it was his father who seems to have had the greatest influence on him. Jack Henry had a great rapport with the people who worked for him, and although "he and the unions had a couple of rumbles", the conflict never became personal. Brian lived and went to school in the mill town of Tokoroa, but the bosses' kids never got any grief from the workers' children.
Jack Henry retired in 1982 and foresaw all the excesses to come, says his son. He was very bitter when his beloved company was taken over by another company, and in 1989 he moved to Australia. "He never came back, except once to visit," says Henry. His son "watched the excesses of the 80s" and saw the destruction of the things his father valued. "The nation was raped and pillaged, legally." And he points out another similarity with his blood brother. His mother Betty was of Scottish stock, just like Peters'. "She was very straight up and down, black and white, and no-nonsense."
So how good a lawyer is Brian Henry, and what is he up to with Winston Peters? Auckland University law professor Bill Hodge says Henry "has done a lot of good work over the years" and had been involved in cases that had led to important changes in the law, both with the Couch case and the Winebox. While he was a maverick, "the law needs mavericks".
The fact that Henry had done so much pro bono work over the years showed that his non-fee work for Winston Peters was not simply a "calculated political contrivance".
Of course, "it's possible that there's a bit of truth in both: he does do this genuinely, but he's doing it for the political reasons as well".
After all, Peters is his blood brother.
BRIAN PHILLIP HENRY
1950: Born in Arapuni, near Rotorua. Educated at Tokoroa High School and Canterbury and Auckland universities. LLB 1974.
1976: Marries Nadine Rosalind Jansen; two children, David and Jaime.
1987: Meets Winston Peters, then still a National MP, when National candidate Wyatt Creech mounts electoral petition challenge to Labour's Reg Boorman, who defeated Creech by one vote in Wairarapa seat.
1990s: Works with Peters on the Winebox case. Sir Ronald Davison's inquiry finds against Peters' allegations of fraud and tax evasion but the Court of Appeal overturns central parts of Davison's findings. 2006: Represents Peters in his unsuccessful electoral challenge to Bob Clarkson, who beat Peters in the Tauranga seat in the 2005 election.
Sunday Star Times