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1 Sir Harry Gibbs a Paper Presented Sir Harry Gibbs A paper presented to the Selden Society, Brisbane on 17 March 2016 by D.F. Jackson AM, QC1 Introduction I thank the Selden Society for inviting me to deliver this paper in relation to the life of Sir Harry Gibbs, who was born on 7 February 1917 and died on 25 June 2005. I had the privilege to be his Associate in 1963 and 1964 when he was a Judge of the Supreme Court of Queensland, I appeared before him after that on a number of occasions when he was a Judge of that Court, and on many occasions I appeared before courts of which he was a member in the High Court, sometimes in cases which were acutely political. After his retirement we kept in contact and I was pleased that he sent a message asking me to visit him in hospital a few days before his death. He was then a very sick man. We both knew he was dying. And we uttered the trivialities and banalities so common on such occasions. Other material May I mention first some of the places where other material concerning him is to be found. The fullest is a biography of Sir Harry by Joan Priest, Without Fear or Favour. It was published in 1995 sponsored by the University of Queensland Law Graduates Association. It contains an Appendix by the Hon Peter Connolly CBE, QC a former Judge of the Supreme Court of Queensland, dealing with Sir Harry’s time on the High Court, and thereafter. In 2003 the Supreme Court Library published Queensland Judges on the High Court, edited by Michael White QC and Adam Rahemtula . It contained the proceedings of a Conference on the theme “Queensland’s Contribution to the High Court”. The Hon Justice Glen Williams, then of the Court of Appeal, presented the paper on Gibbs. I presented the Commentary to his paper. For the purposes of this Paper I have plagiarised his paper, shamelessly, as I told him I would, and I also repeat some parts of my Commentary. There is material in the Oxford Companion to the High Court of Australia (2001) in the entries Gibbs, Harry Talbot which Joan Priest and I contributed and Gibbs Court by Professor Anne Twomey. Some of what I will say repeats comments which I wrote in the Obituary in 2005 in 79 Australian Law Journal. Early days Harry Talbot Gibbs was the son of Harry Victor Foote Gibbs, a prominent solicitor in Ipswich. And of Flora McDonald Talbot Woods. 1 This paper was originally delivered in part as a PowerPoint presentation. I thank our daughter Louise Jackson, herself in practice as a barrister in Sydney, for her assistance with the PowerPoint images. Two of Sir Harry’s daughters, Margaret and Mary – mentioned below in the text – are researching the Gibbs family history. I thank them for their assistance with some of the photographs used. 1 May I say two things about names. First to the family the “a” in Talbot is long. Secondly Sir Harry Gibbs, from a young age, was known to his friends as “Bill”. Despite the fact that his father was then in practice as a solicitor in Ipswich, Bill Gibbs was born in Sydney. He was born on 7 February 1917 at 99 Gordon Street, Paddington. The birth certificate records the witnesses to the birth as “Dr Windeyer” and “Sister Cook”. I checked on the lineage of Dr Windeyer2 with Bill Windeyer, a retired New South Wales Supreme Court Judge and the son of Sir Victor Windeyer the former High Court justice, and he confirmed that there was a family relationship. It is an interesting historical vignette that that one member of the 2 Dr John Cadell Windeyer, obstetrician and first Professor of that discipline at Sydney University. 2 High Court had been delivered by a relative of another. But Australia was a much smaller place in 1917. Although he had been born in Sydney Bill Gibbs was brought up in Ipswich. Children do tend to grow up. And up. 3 He attended Ipswich Grammar School and then the University of Queensland. In this photograph from his Ipswich Grammar days he is in the back row sixth from the right. Also at Ipswich Grammar was Douglas Campbell – “DM” as we later called him – to distinguish him from Walter Campbell (“WB”). D.M. became a Supreme Court Judge. His son is Douglas Campbell, a silk at the Queensland Bar. 4 “D.M.” and Bill Gibbs later took silk at the same time, as the newspaper of 8 February 1957 records. 5 Queensland University As I have said he attended the University of Queensland. He was inaugural president of the Law Students’ Society and vice‐president of his college, Emmanuel. He is seventh from the right in the second row. He also was elected President of the Students Union. The other candidate was R.S. Hopkins. 6 7 Dick Hopkins became a distinguished engineer. He frequently gave expert evidence. He was a relative, or relative by marriage, of the Hanger family. Gibbs graduated in Arts in 1937 with first class honours 8 and in Law (1939), again with first class honours. 9 Life at Queensland University, however, was not all unmitigated work and merit. He was a participant in the rather shabby episode reported in Semper Floreat, that journal of record, of 30 September 1937 under the heading “Women’s Club Ravaged”. The basis for the intrusion into the Women’s Club appeared to be the fact that the words defining qualification for membership of the Women’s Club did not specify that members had to be women. No doubt influenced by that experience, he said in his judgment in the High Court in Wacal Developments Pty Ltd v. Realty Developments Pty Ltd (1978) 140 CLR 503 at 507, forty one years later, that where a term is defined it: “is given … a special meaning which must be applied whether or not it accords with the ordinary meaning.” 10 These days, of course, the incursion into the Women’s Club would probably be unnecessary. Reliance could simply be placed on the Sex Discrimination Act. But I suspect he would not have found that course quite as attractive. There was also the occasion in July 1938 when the Brisbane Telegraph carried the headline Students Stranded in Bay. 11 It was said that the engine of the vessel had failed and that the students had had to spend a cold night together at Bishop Island near the mouth of the Brisbane River. The students, as is apparent from the photograph, appear to have survived the ordeal in remarkably good spirits. And it may be noted that the engine of the vessel restarted, apparently without trouble, on the arrival of the Water Police launch. Call to the Bar Sir Harry and Tom Matthews were the first graduates of that University’s Law School to graduate with first class honours. They were thus entitled to admission to the Queensland Bar in 1939 without payment of fees, although they had to establish that entitlement before the Full Court. The report of those proceedings is In re Matthews; In re Gibbs (1939) QWN 32. Their admission to the Bar was on 30 May 1939 but the initial period of practice could only be brief. World War 2 was but months away. World War 2 He was an early enlistee – on 2 December 1939 – and remained in military service for the six years of the War, being discharged in December 1945. On his initial enlistment he was given the rank of Staff Sergeant. Fortunately the Army took the view that he was suited for higher things and he was commissioned six months after enlistment. He served in Australia. 12 and in New Guinea, 13 received promotions to Major, and was Mentioned in Despatches. After completing his military service in December 1945 he resumed practice at the Queensland Bar. May I devote a moment to an event in his military service. It concerns the “Battle of Brisbane” – riots and fighting in November 1942 between Australian and United States troops outside the American PX on the corner of Adelaide and Creek Streets. Much was censored about it at the time; much has been written about it since. What I am about to say comes from Peter Thompson and Robert Macklin’s 2000 work “The Battle of Brisbane”. The authors note that there was a brief lull in the rioting as the wounded Australians were carried away and that the lull gave a Major Cummins, Assistant Adjutant‐General of the Queensland Line of Communication Area, an opportunity to take command outside the PX. Cummins summoned a group of helmeted Australian Army pickets to disperse the mob. They were armed with .303 rifles, but the rifles were not loaded. The authors go on: “The use of a shot gun on Australian troops had enraged the rioters and they urged the pickets to join them. One policeman said that a majority of the pickets, who had been hastily drawn from signals personnel, had ‘doubled back, mingled with the rabble, passed their rifles over to anyone who would take them and changed their helmets for hats or went bareheaded after secreting their steel helmets’. He heard rioters urge the pickets; ‘Shoot the bastards, or give us your guns and we’ll use them.” There was, of course, an Army Court of Inquiry after the event. The fact that a policeman’s recollection of events might differ from that of others was brought home early to Sir Harry.
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