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As Time Goes by a Speech Delivered by the Hon T E F Hughes AO QC to the Justices of the Supreme Court at the Opening of the 2006 Law Term

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As Time Goes by a Speech Delivered by the Hon T E F Hughes AO QC to the Justices of the Supreme Court at the Opening of the 2006 Law Term LEGAL HISTORY As time goes by A speech delivered by the Hon T E F Hughes AO QC to the justices of the Supreme Court at the opening of the 2006 law term. Chief justice, you have asked me to of Appeal was established in 1966, Jack Slattery, his associate, (this was my speak about judges of this court before he was offended by the figurative first meeting with him) conducted me whom I have appeared. I am honoured separation of sheep and goats that the into the interview room. Any tendency by the invitation and thank you for it. new system entailed. He was not alone. on my part to be overawed by the I have decided that I must observe some There was a substantial schism which occasion was dispelled by the cordiality self-imposed ground-rules. They are: took time to heal. Some of the non- of the interviewers. anointed were heard to refer to a ◆ (with two exceptions) to say nothing However, cordiality to strangers was not particular member of the anointed as about the living; and a characteristic of Sir Frederick. He did ‘King Rat’. But Macfarlan was not given not exude warmth or geniality in ◆ to disregard the injunction de mortuis to name-calling. public; he was known as Frigidaire nihil nisi bonum so far as may be I had but one conversation with Jordan. Freddy; he could be mordant, as when necessary in the interests of candour. It was not a forensic occasion. At the in giving judgement in a divorce appeal, To look back 57 years, to 11 February end of the Second World War, I applied he described the respondent and co- 1949, the date of my admission to the unsuccessfully for one of two Rhodes respondent as having committed Bar, is a long retrospect. It looked even scholarships that were open for 1946. adultery ‘al fresco, as it were, in a motor longer when, in the course of preparing He was chairman of the Selection car’; or as, when a timid counsel for this speech, I discovered in Who’s Committee. To get to the interview in explained apologetically that his Who that two judges of this court were time, I had flown from the UK as a hesitant reading of an affidavit was due not then born. I appeared before each passenger in the back of an Avro York, to the near illegibility of the copy in his of them last year. Sir Frederick Jordan reclining on mailbags that were part of brief, Jordan intervened by observing presided in the old Banco Court on the cargo. After a leisurely journey – it that by accident counsel must have that day. Bruce Macfarlan moved my lasted about 14 days via Malta, Cairo, been provided with one of the copies intended for the court. admission. My father had briefed him Bahrain, Karachi, Negombo, Cocos and from time to time and rightly held a Perth held up by engine trouble at Jordan’s mastery of the principles of high opinion of his ability. As counsel, Negombo during which time I visited equity was renowned. Who, as a student Macfarlan – he was then a senior junior the HQ of South East Asia Command, of the Sydney University Law School, – had a grave and courtly manner. His also known as Supreme Example of will forget his Chapters on Equity, even if hallmarks were thoroughness and hard Allied Confusion – I arrived in Sydney not remembering much or anything of work, leading to a complete mastery of on 14 December 1945 and scarcely had its contents? His judgmental technique the many briefs on his table. He became time for a shower and change of clothes was didactic: he approached the a judge of this court in 1959 after a before going to Government House for questions for decision by means of a successful career as silk. When the Court the interview. Sir Frederick presided. compact and lucid essay upon the principles established by the relevant authorities. So vast is the flow of modern judicial decisions that his judgments are not often referred to these days. But they are well worth reading as models of conciseness and a treasure trove of learning. In his valedictory speech, Dixon paid high tribute to him: see (1964) 110 CLR xi. He died in office on 4 November 1949, after nearly 16 years as chief justice. His judgments show that his command of principle was not confined to equity, which had been his chosen metier at the Bar. He had not come from a privileged background. He joined the civil service on leaving school at Balmain, putting himself through Sydney University in Arts and Law while earning his living. Those who knew him well testified to his possession of an Tom Hughes AO QC in chambers. earthy sense of humour in the tradition 58 | Bar News | Winter 2006 LEGAL HISTORY As my practice developed, appearances others were Philp J and Ligertwood J) before Sir Kenneth Street in the full appointed as royal commissioners into court became gradually less infrequent. espionage following the defection of He commanded great respect as chief Vladimir Petrov in 1954, Owen had had justice, also great affection. He was a to deal with Evatt’s increasingly erratic patient, considerate and courteous team behaviour as counsel appearing before leader who left the court in good shape them. They withdrew his leave to at his retirement on 14 December 1959. appear. Evatt’s forensic antics in the To all these sterling qualities there was Petrov commission had made a deeply the added bonus of a deep sense of adverse impression. humour. At the time of his appointment Owen J plugged on unhappily as senior the court had eleven puisne judges; puisne judge, honouring his pledge when he retired, the number had until mercifully and deservedly relieved increased to 21. by appointment to the High Court in The appointment of his successor September 1961. was not good for the morale or the During his brief period of office as chief performance of the court. There was a justice of NSW (he retired on 24 October strong professional consensus in favour 1962), Evatt was suffering from an of the appointment of the senior puisne, illness (in lay terms lack of adequate WFL Owen J. blood supply to the brain) that impaired But that was not to be. The Labor Party his mental faculties to the point of in the federal sphere was then in a state disabling him from the effective of convulsive turmoil because of the discharge of his judicial duties. He can Kenneth Street, ca. 1931. split that had led to the formation hardly be castigated for having taken Photo: Falk Studios/State Library of New South Wales of the DLP. HV Evatt, the leader of the appointment: for I doubt whether the opposition, was not free of of Rabelais. He was fluent in French and he appreciated his lack of capacity. I responsibility for the split. His capacity Italian. appeared before him in the full court on for divisiveness was formidable. His several occasions. He had no grasp of On 6 January 1950, Sir Kenneth Street – performance, appearing as counsel in the case in hand. It required some then senior puisne – became Jordan’s the Petrov Royal Commission, had been dexterity to deal with his interpositions successor. Sir Kenneth had held office as troublesome, to put it mildly. Could a in argument because they were often a judge of the court for nearly 20 years. place be found for him outside politics? scarcely rational and seldom, if ever, His successor as senior puisne – AV The party managers prevailed on the relevant. If you search the State Reports, Maxwell J (of whom more later) – state government to appoint Evatt to you will find that all the judgments in welcomed him at a formal sitting of the the vacant office of chief justice. He was his name were delivered jointly. His court soon afterwards. CE Weigall KC, sworn in on 15 February 1960. contribution to them was nominal. the state solicitor-general, spoke at that As senior puisne, it fell to Owen to ceremony on behalf of the Bar. He was Owen J (born 1899) occupies a special speak on behalf of the Bench on this as deaf as a beetle and used an ear place in my pantheon of judges, and inauspicious occasion. His words were trumpet as an elementary form of that for several reasons, not least his brief: no expression of congratulations prosthesis. This was not an effective aid. helpful influence on me as a young or welcome: only a pledge of aid and He appeared regularly in criminal lawyer. assistance by the judges and officers of appeals. The level at which those instructing him had to speak on these occasions invested the proceedings with Cordiality to strangers was not a characteristic a pantomimic quality hardly conducive of Sir Frederick. He did not exude warmth or to the maintenance of decorum or legal professional privilege. As well as being geniality in public; he was known as Frigidaire very deaf, Weigall was at this time very old; his views were lacking in con- Freddy. temporaneity, as illustrated by a statement, in his welcoming speech, the court ‘to the limits of their ability’. He took silk in 1935, after 12 years of that ‘there has never been a time in the Owen’s remarks occupy nine lines of practice. He was appointed an acting history of the colony when it has been print in the ‘memoranda’ section of judge of this court in 1936.
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