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 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 was renowned. Who, as a student Macfarlan – he was then a senior junior the HQ of South East Asia Command, of the 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

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As my practice developed, appearances others were Philp J and Ligertwood J) before Sir 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 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. In October more essential that the traditions of the (1960) SR (NSW). This economy of 1937, his appointment became Bar should be maintained’: see the speech was hardly surprising. As permanent and he served in that office memoranda section of 1960 SR (NSW). chairman of the trio of judges (the for 24 years. His father and grandfather

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held judicial office, each in their time as of Owen’s death is rightly replete with ‘In speaking to you tonight I feel like a a judge of the Supreme Court. His youth unstinted appreciation of his public castrated glow-worm: delighted’. was unconventional in that he ran away service: A statement illustrative of the from Shore at the age of 15 to join the (T)hroughout all his judicial life he occupational pressures to which Bench 1st AIF. At 16, when serving in France, he exhibited those qualities which are most and Bar are subjected now compared was wounded in action; after returning sought in a judge: unremitting devotion with those of bygone times appears from to the lines he was wounded again, this to duty, a sound grasp of legal principle, a a few lines in the valedictory speech time by gas. He recovered to join the proper sense of fairness and right, and made by SV Toose J on the occasion of newly formed Australian Flying Corps good and sound judgment. his retirement in October 1953. He in which he received a commission as Ill-health dogged him. He had an recorded a piece of advice imparted to lieutenant. On discharge in 1919, he agonising affliction of a facial muscle him when young at the Bar by Sir toyed briefly with the idea of becoming caused by a disordered trigeminal nerve. Alexander Gordon, whom he described an engineer before opting to study law. Towards the end of his judicial career he as ‘a very great man and a very great He passed the Bar examinations and was suffered the partial amputation of a leg. judge’. The advice was ‘to start work at admitted to practise in August 1923. His He was only 71 when he died. 9am and be there until 5.30pm’. Few practice soon took off. barristers today would regard adherence I have mentioned three chief justices – I knew him well: his father and mine to this tempo as adequate obeisance Jordan, KW Street and Evatt. The latter’s were contemporaries and great friends. before the altar of the goddess of successor was Sir . He He was my father’s best man. For several ambition. How many of you – I suspect shouldered with ability the task of years after the Second World War he none – could carry on your work restoring balance and direction to the came trout-fishing with us in a remote effectively by keeping those hours? court after the departure of Evatt. He was and beautiful place called ‘Yaouk’, on appointed chief justice in October 1962 WR Dovey QC succeeded Toose as judge the Upper Murrumbidgee. He was an after many years as a puisne. He was, in Divorce. Dovey’s life on the Bench was accomplished fly-fisherman. He was a without being of great intellectual bent, somewhat turbulent. He had been a shy man: only those who knew him well an effective, albeit verbose, judge powerful, forceful and very successful were able to penetrate his polite reserve. respected and liked by those who advocate. He had a sonorous voice. He Once you did that, his friendship was appeared before him. Before going to the was adept in grasping facts on the run, warm. I was his associate during 1948, Bench, he had a very large practice on after only a short excursion into learning much at his feet. His mind was the North Coast. He was affable, given to his brief. He possessed great power of incisive. He had an enviable capacity for rather banal puns off the Bench such as: verbal expression. He had an imposing succinct expression. He took no more than 20 minutes to charge a jury in a straightforward case.

In his contributions to the administration of justice and public affairs, Owen was not just a lawyer. His talents spread into other areas where his services were in demand by government.

Between 1942 and 1945 he served as chairman of the Central Wool Committee, responsible for the acquisition and marketing of the Australian Wool Clip. In this task he succeeded Sir , who regarded him, as did Menzies, as a suitable prospective appointee to the High Court, where he ultimately arrived.

Barwick was not given to generous praise. Commendation from him was hard earned. His recitation, in the eulogy Doc Evatt and his wife at the time of his appointment as chief justice of NSW, Mosman. (reported in 125 CLR) upon the occasion Photo: Jack Hickson / Australian Photographic Agency collection, State Library of New South Wales

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physical presence. As a young man he solicitor granted, to enable me to do had taught English before embarking in other work. Maxwell and Dovey were 1914 on military service to deal with the set upon bringing down a well-known German colony of New Guinea. He and liquor merchant (‘L’) who was under JW Shand were legendary exponents of suspicion as having possession in a forensic brawling in their encounters secret location of a large quantity of against each other. One morning, in the illegally acquired liquor. He stoutly concluding stages of such a case, denied the accusation. He was stood someone who saw Dovey taking the air down and another witness (‘X’) after 10am at the doorway of the old interposed, who gave some inconsequential evidence unrelated to Selborne Chambers, asked him: ‘Why the particular allegation against L, who aren’t you in court, listening to Shand’s was then recalled. Dovey continued to address?’ The response came in the form hammer him unavailingly for a while, of a rhetorical question: ‘Why should I until the commissioner interposed with listen to John Wentworth Shand pouring this deadly and wholly inadmissible a verbal shit-can all over me?’ question: ‘Mr L what would you say if I In 1956, Dovey came under heavy were to tell you that X has just told us criticism from the media because of that you had an arrangement to Justice Victor Maxwell. his authoritarian conduct as royal Photo: Hereld & Weekly Times Ltd Portrait Collection/State purchase the liquor from him and that commissioner into the arrest, and Library of Victoria he let you inspect the stock? Confronted treatment by the police of one Studley- with this quite false statement, L Ruxton, an Englishman dwelling on the Bench, Maxwell was engaging and thought that he was compromised and fringe of society for whom my friend amusing, displaying warmth and charm confessed to possession. Antony Larkins QC, appeared, paid by which he did not replicate in court. Athol Railton Richardson was appointed Frank Packer. Dovey raised eyebrows by There he elevated asperity and to the Supreme Court in 1952. He had remaining vice-chairman of the AJC after impatience to the level of an art form. no practice, having been Liberal his appointment to the court. As such, When he retired in August 1957 to take he heard racing appeals in the exercise of an appointment as chairman of Channel member for Ashfield in the Legislative the club’s statutory appellate jurisdiction. 7, then in the Fairfax stable, Harold Assembly for some years. But he had a His capacity for terrifying witnesses, by Snelling QC, then solicitor general, told silk gown, the basis for which must have peering and glaring at them through his a whopping fib in the course of the been his status as a member of monocle, was legendary. For him the customary valedictory eulogy: he parliament. The government of the day transition from advocate to judge was described him as having been ‘at times saw a chance that if his seat were to not easy. While in office he suffered the a little impatient’. become vacant, Labor might pick it up humiliation of being voted off the AJC There was one incident in the liquor on a by-election. Richardson accepted Committee. commission that I well remember. I had the appointment so that when the by- election was being fought he was One of Dovey’s last briefs before a junior brief in it at 20 guineas per day appointment to the court was as senior until boredom inspired me to seek a Richardson J. Labor cleverly selected as counsel assisting AV Maxwell J as royal release, which Brian Page, my instructing his successor a man with the same commissioner to inquire into the liquor industry. The inquiry lasted more than two years and was a bonanza for the Athol Railton Richardson was appointed to the participants from the Bar. earned 1000 guineas per week Supreme Court in 1952. He had no practice, as counsel for Tooths. This was stratospheric remuneration. His junior having been Liberal member for Ashfield in the silk, Richard Ashburner, was on 600 guineas. Victor Maxwell was a judge of Legislative Assembly for some years. unrivalled sharpness of mind. He had a big practice as silk in the late 20s and The government of the day saw a chance that if until his appointment to the court in 1934. He was under consideration for the his seat were to become vacant, Labor might pick appointment that Jordan got. Off the it up on a by-election.

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surname Jack Richardson – he had been It was part of his training method to was the possession of physical courage in the same year as myself at law school. give his pupils very difficult tasks, as and powers of endurance. He had a Rather cleverly he picked as his when he sent me on one occasion to disability which required him to wear a campaign slogan the words ‘Judge seek an ex parte injunction to restrain cumbersome surgical boot. This did not Richardson on his merits’. He won the infringement of an industrial design. prevent him from engaging in military by-election but did not last long in the David Roper, chief judge in Equity, gave service in World War II and from seat. Once ensconced in judicial office, me short shrift, but gently so. I think he climbing the Kokoda Trail. He had a Athol Richardson demonstrated orderly identified my pupil master as the successful equity practice as silk when habits: he devised a card index system instigator of this exercise in forensic appointed to the Bench. Unfortunately that he utilised to structure his hardihood. Ken had a habit of taking a his approach was towards creating directions in a jury trial. There blue bag, stuffed with briefs, home every rather than solving problems. He was were neat topic headings such as night to Pymble. They must have been unaffectionately and cruelly known as ‘contributory negligence’, ‘volenti non fit the most peripatetic papers in Phillip ‘funnel web’. One member of the Bar, injuria’, ‘how to define negligence’. Street. His easy confidence as a trial Michael Helsham, knew how to handle There was probably a card with counsel was not so evident in the him. He was able to engage in a process suggestions about how to deal with appellate arena, where his adherence to of self-abasement, describing the Clive Evatt QC, who in those days was a written argument created a slightly magnitude of the difficulties that faced riding high. Richardson’s problem was wooden presentation. He was appointed him in the presentation of his case. that he was not adept in the choice of to the court in June 1963 after several Thus he was able to appeal to a the cards to be used. So, for instance, he months (from October 1962) as an miniscule constructive streak in Myers’s would pick the ‘contributory negligence’ acting judge. The general impression nature. It was an effective but not much card for use when that was not in issue. was that his ebullience and egocentricity admired way of dealing with a difficult Richardson was a well-meaning man would tell against his success on judge. Michael Helsham at the Bar had who gained marks only for sincerity and the Bench. The doomsayers were an unusual but very large practice: it effort. He lived in my electorate of completely wrong: he deployed his was equity work, GIO work and Parkes. To my slight surprise I found considerable talents as an actor to play constitutional work for the New South that even when on the Bench he the part of judge. He was a great success Wales Government. In due time, he remained a paid up member of the on the Bench, both at first instance and became an equity judge, succeeding Liberal Party. in the Court of Appeal, to which he to the office of chief judge. He was one of the first appointees on its ran an efficient court somewhat I had the good fortune to read with establishment (1 January 1966). Asprey idiosyncratically. He had the Kenneth William Asprey during 1949 was able to adapt his strong personality commendable habit of giving ex- and 1950. He was an innovative and to the exigencies of judicial office. In tempore judgments with greater energetic advocate who prided himself, sum, he was as good as he thought he frequency than his brethren. He served with full justification, on his ability as a was. with distinction in the RAAF in World cross-examiner. He was not plagued War II. with doubts about his ability. Frederick George Myers was appointed in 1953 as a judge to sit in Equity. The No treatment of my subject would be His method of advocacy was distinctly memoranda section of 1970 SR (NSW) complete without making reference to thespian; of his many forensic successes records him as having retired two judges, one long dead – Cyril Walsh he was given to regaling people with voluntarily on 28 July 1971. He lived – and the other happily still amongst us, vivid descriptions, the extravagance of into his nineties and was an occasional in good health at the age of 87 – Jack which was alleviated by his flair as a writer of letters to the Sydney Morning Slattery. raconteur. Herald. One of his notable characteristics Cyril Walsh was appointed on 8 March 1954 at the age of 45. He became a judge of appeal upon the establishment of the Court of Appeal on 1 January Frederick George Myers was appointed in 1953 as 1966. He was translated to the High a judge to sit in Equity. The memoranda section Court of on 3 October 1969. His career before assuming judicial of 1970 SR (NSW) records him as having retired office was academically brilliant. On voluntarily on 28 July 1971. admission to the Bar in 1934 he

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practised on the equity side of the court. In the main he had what used to be called a Friday practice. My perspective of him was that he was not given to professional over-exertion, perhaps because his talents were such that he took in his stride work that would have taxed others more heavily. He was seldom in chambers after 5pm.

His intellectual powers came into full blossom on the Bench. His temperament was completely suited to judicial office. Appearing before him, one gained a strong impression that one of his main aims was to enlist counsel’s involvement in a co-operative exercise designed to expose and unravel the problems, factual and legal, thrown up by the case in hand. He was scrupulously polite, except when a step out of line by counsel would provoke a curl of his lip and a deserved rebuke. He displayed an incisive and inquiring mind; he was patient. I had the good fortune to Portrait of Mr Justice Cyril Ambrose Walsh seated in chambers. appear quite frequently before him. My Photo: Mulligan, J A (John Aloysius), 1927-1996/National Library of Australia chief recollection of him after this lapse of time is of his participation in the Concrete Pipes case in 1971 in which I On Walsh’s untimely death at the age of 64, led a team, who, in order of seniority Barwick delivered a eulogy of unstinted, wholly at the time were Bob Ellicott, Bill Deane and for the deserved praise capturing all his outstanding Commonwealth. On Walsh’s untimely death at the age of 64, Barwick delivered qualities. a eulogy of unstinted, wholly deserved praise capturing all his outstanding reached the then statutory retiring age art, such as Charles McLelland and his qualities. You will find it at the front of of 70 he was chief judge at Common son Malcolm who retired too early and 128 CLR. Law. The government wisely decided had the potential for appointment to Earlier I mentioned Jack Slattery and that his services to the state were too the High Court. Denys Needham was told you when I first met him. Later valuable to lose so soon. Hence the one of the most impressive judges we were juniors in opposite sides in Slattery Act, which enabled him and before whom I ever appeared. We were October 1955 in the Mace/Murray others to serve on as acting judges to colleagues at law school, he with a custody litigation when it went to the age 75. He was an astute and highly much better academic record than I. Privy Council. Mace was the natural successful trial judge. He remained in I equate his style with that of Cyril mother, supported by Ezra Norton; the judicial office until 1992. Apart from Walsh. Murrays were the adopting parents, strictly judicial work, he gave sterling I have witnessed a long procession of supported by Frank Packer. service to the state on numerous judges through the halls of justice and commissions of inquiry and in courts To adopt modern jargon, I describe Jack propose to continue. I regret having of Disputed Returns. Slattery without hesitation as a living been critical of a few – although very national treasure. His record of judicial This has been a selective recollective few. But history and sugar coating go ill service is unsurpassed. He served on this ramble. Time prevents treatment of in hand. court from 1970 to 1988. When he other admired performers of the judicial

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