Personal relations. Any human grouping has its own politics and its own complex network of interpersonal relationships. These relationships may affect the way the group discharges its collective task; and, conversely, the structures in place to facilitate the discharge of that task may affect group dynamics by fostering or inhibiting the development of personal relationships (see Conferences). The High Court—a small, collegial group with the dual role of deciding particular cases and, in so doing, of declaring the law for Australia—is no exception.
For obvious reasons, information about personal relations within the Court is necessarily incomplete, inevitably selective, and not entirely reliable, or at least not always conveyed or received in its proper context. Nevertheless, neither is it wholly irrelevant or gratuitous; interpersonal relationships bear upon the work of the Court both directly and indirectly, particularly upon the consensus-building aspects of the decision-making process. Facts, so far as they are known, can be reported, and readers—making due allowance for the subjectivity of the sources (which include diaries, letters, and other private papers, as well as interviews and other records)—may make their own assessments of any extrapolations or generalisations from those facts, or indeed may make extrapolations or generalisations of their own.
One easy generalisation is that personal relations in the Court have varied considerably over time. In the very beginning, they were good. The personal friendship of the foundation Justices, Griffith, Barton, and O’Connor is well documented, and is nicely illustrated by their unanimous reaction to Attorney-General Josiah Symon’s attempt to create a permanent seat for the Court (see Strike of 1905). When Symon suggested a reduced allowance for the Justices when travelling together, Griffith told Symon that it had ‘fortunately happened that we are on terms of personal friendship’, and on most occasions had therefore been able to reside together while on circuit. But ‘this is an accident which cannot be regarded as a permanent solution’.
At a ceremonial sitting to commemorate Griffith’s retirement in 1919, Barton, who was unable to attend, forwarded a message to the Court testifying to Griffith’s ‘ceaseless devotion’, ‘unwearied labour’, and ‘matchless ability’. In his farewell speech, Griffith, in turn, could ‘not refrain from mentioning’ his ‘especial regret’ at the absence of Barton, his ‘oldest, and always trusty, colleague’. Griffith and O’Connor also quickly developed an ‘affectionate regard and confidence which was never broken or weakened’. Griffith said that their minds ‘ran to a great extent in similar grooves’, to which ‘our early training at our common University of Sydney may have in some degree contributed’. Barton and O’Connor had been friends from boyhood; their friendship continued through years in state politics, and as proponents of federation. When Griffith announced that he was resigning in 1919, Barton wrote to him: ‘Up to  … the three original members of the Court remained—now there will be only one. The result is indescribable loneliness, and the sundering of the old companionship will make me feel the chill of isolation as I sit in the cases that are to come.’
When Isaacs and Higgins were appointed in 1906, there began, to use Barton’s words, years of ‘stirring up the peace’. In 1903, Isaacs had expressed a clear preference for Barton or O’Connor, rather than Griffith, for the Chief Justiceship: ‘I look upon Griffith as a past number.’ Letters from Griffith and Isaacs do not otherwise reveal much about the relationship between the two men. But their judgments reveal that they were far from comfortable colleagues. Their judicial style and judicial philosophy differed; Griffith sought a ‘balanced’ Constitution that reserved state powers, while Isaacs interpreted Commonwealth legislative powers widely. Both possessed dominant personalities; both were ambitious, highly intelligent, and self-assured. Consequently, they often expressed their opposing positions emphatically and dogmatically, sometimes with little tolerance of each other’s views. Their ‘exceedingly fierce brushes’, Evatt wrote in 1940, ‘delighted the law students, if they scandalized the public’.
Before federation, Barton, in Alfred Deakin’s words, had ‘cordially disliked’ Isaacs. Barton had been irritated, during the Convention Debates, by Isaacs’ combativeness, insults, and lengthy displays of erudition. Barton’s letters show his unrestrained dislike of Isaacs after Isaacs’ appointment. The two men did not merely interpret the Constitution differently—they differed temperamentally in almost every way. In 1913, Barton wrote to Griffith that Isaacs was ‘trying to make such a big splash that he will make himself manifest as the right CJ … His judgments are swelling to bigger proportions than ever—in fact they are very weighty—in respect of paper; and he has assumed an oracular air in court that is quite laughable’.
Griffith’s few letters to Higgins have a friendly, sometimes jocular, tone, and they sometimes visited each other’s homes. Barton, however, appears to have had little regard for Higgins. He wrote to Griffith: ‘You will see how little decency there is about [Isaacs and Higgins] … All the same, I think they hate each other, although they conspire. They had a little brush at consultation yesterday … [Higgins’] manner, in his annoyance with Isaacs, was most offensive to the rest of us.’ Isaacs and Higgins differed in many respects, but shared similar views of the Constitution, and were partners in the shift in constitutional interpretation ushered in by the Engineers Case (1920). They had had a long association at the Bar and in state and federal politics. When Higgins died, Isaacs said: ‘There will ever live in my memory his individual kindness of spirit—I never knew him to utter an unkind word—his courtesy, his marvellous fortitude … his gentleness, his dignity under all circumstances.’ Although there are often differences between public statements and private views, Isaacs’ tribute to Higgins sits particularly oddly with Barton’s description of the Justices’ relationships; so too do Isaacs’ public tributes to Griffith and Barton. In 1919, Isaacs spoke of Griffith’s ‘wisdom and capacity’, ‘great talents’, ‘ripe experience’, and ‘erudition’; and in 1920, of Barton’s ‘unfailing gentleness of disposition, his personal attraction and warm sympathy of soul—qualities that always endeared him to his colleagues’.
Of the 1913 appointees, Barton wrote to Griffith that he thought Powers behaved, in one case at least, ‘more satisfactorily than either [Gavan Duffy or Rich]’. He thought Gavan Duffy, whose relationship with Griffith was sometimes strained, was ‘honest’, and is ‘honestly sticking to the line of construction for which he argued at the Bar’. Barton said Rich ‘followed Gavan Duffy in all things’. While Griffith was overseas, there had ‘been no electricity in the judicial atmosphere’, apart from the failure to consult in the Engine Driver’s Case (see Conferences), although Barton feared he ‘may have said one or two unpleasant things’.
Griffith wrote to the Chief Justice of NZ, Robert Stout, that although differences between Griffith, Isaacs, Higgins, Gavan Duffy, Powers, and Rich occurred ‘often’, they did not ‘affect our relationship’. However, in 1919—in what Barton described to Governor-General Munro Ferguson as Griffith’s attempt to ‘requite in deadly fashion the man [Isaacs] who had injured him’, even if it meant that ‘he killed the man [Barton] who had helped him’—Griffith secured Knox’s appointment ahead of Isaacs and Barton as the next Chief Justice.
In the Knox Court, strong differences developed between Starke and Isaacs and Higgins. There were also tensions between other Justices and Isaacs. Rich recalled to Latham the acrimonious atmosphere that existed before Latham was appointed: ‘My mind goes back to the time when Duffy opposed the acceptance of Isaacs’ portrait, and with the aid of Knox and Starke prevented the Court having it.’ According to the Bulletin, although Knox had been the strongest President the Australian Jockey Club had had, ‘he has not been quite so assured on the Bench. The restless, questioning Isaacs who was the bane of old Samuel Griffith, is a continued menace to Griffith’s successor also’.
A member of an old Sydney elite, Knox had nothing in common with Isaacs or Higgins, but would have been brought up in the company of Barton and would have found Gavan Duffy, an Irishman of the governing class, congenial. Knox was not as erudite as Isaacs or Higgins, nor did he share their passion for judicial work. In his retirement speech, Dixon said that he had known Knox ‘to refuse to have anything to do with a judgment I wrote, on the ground that it sounded too philosophical for him’. Initially, Knox joined in judgments with Isaacs, but in general, his letters to Isaacs—who served with him for more than a decade—are courteous and polite, rather than friendly. His letter to Isaacs informing him of his intention to resign in 1930 ends: ‘I am very grateful to you for the loyal support you have always given me, and hope to see you to thank you personally on my return from Canberra on Wednesday or Thursday next’. In contrast, when Barton died, Knox wrote to Lady Barton in emotional terms: ‘I shall never forget his kindness to me on many occasions during my career and most of all on my appointment as CJ. I doubt if any other man in his position would have gone out of his way as he did to convince me of his gracious feelings towards me.’
There were tensions in the Gavan Duffy Court between Starke and Evatt and between Starke and McTiernan (partly because of the political nature of Evatt’s and McTiernan’s appointments), and between Gavan Duffy and Starke (who had married a daughter of Gavan Duffy’s half-brother). According to Robert Menzies, Starke ‘would not temper the wind to the shorn lamb’; and when Gavan Duffy ‘chose to sting, he could sting like an adder’. On one occasion, after a series of insults from Starke, the recipient of which is unknown, Gavan Duffy adjourned the Court; but, due to a misunderstanding, Starke remained at the bench alone. According to the Dixon diaries, Gavan Duffy confronted Starke about the incident years later. He asked Starke: ‘Is our misunderstanding to continue until I die?’, to which Starke replied: ‘I see no reason why it should not.’ Starke and Dixon thought that Gavan Duffy—who was 78 when appointed Chief Justice—would have to leave the Court if personal relations were to improve. They encouraged Gavan Duffy to resign, which Gavan Duffy resented.
Latham inherited a difficult situation. Everybody in the early Latham Court, as Dixon recalled in 1964, seemed ‘to dislike everybody else’. In 1939, Latham wrote to Evatt: ‘What can be done in these circumstances which I found existing when I came to the Court? I have tried very hard to improve the personal relations of other members of the Court, but I confess without success … We ought to be able to enjoy our work and live happily together. Will you not help to bring this about?’
Starke was a particular problem. Latham had been Starke’s pupil; now Latham was Starke’s Chief Justice. When Latham tried to persuade Starke to travel on circuit in 1940, Starke responded: ‘I resent your dirty insinuation that I stayed on in Sydney to make a bob out of the government, and also your silly schoolmaster attitude toward me. I think an apology is overdue and in future … keep your criticisms of me to yourself unless I ask for them.’
Although Dixon was often privately highly critical of Latham, he also recognised his abilities—Dixon praised Latham’s judgment in the Jehovah’s Witnesses Case (1943)—and recorded at least one occasion when he talked with Latham ‘pleasantly about all sorts of things’. Evatt showed resentment about the way Gavan Duffy had been ‘forced off the Bench’—to make way for Latham—‘by a combination which included one member of the present Bench’. He also resented Latham’s riding roughshod over him. In 1939, Evatt accused Latham of delivering Moran’s Case (1939) ‘without any consideration of my opinion, or even prior discussion of the great constitutional questions involved … If you persist in this mode of conduct to me, you leave me no alternative except to appeal to authority outside this court’. Evatt suspected that Moran had been expedited because of political pressure: ‘Under these conditions, good work is rendered almost impossible. I regret to say that I think you have exacerbated feelings of unpleasantness, suspicion and even hostility among the Judges.’
Most of the Justices related well to Rich; but Starke could treat him harshly. Starke wrote to Latham in 1936 about Rich’s appointment to the Privy Council: ‘He will be like a dog with two tails … But I thought the Privy Councillorship was reserved for those who had rendered distinguished political, judicial or other services. It is a pity to degrade the rank by such an appointment.’ Yet the Dixon diaries record that Evatt ‘liked old Rich’. McTiernan, who served as Rich’s associate, had certainly liked Rich initially. When McTiernan’s appointment to the Court was announced, ‘Rich phoned me and walked down from the Court to the city to have a cup of tea. He brought Dixon along. Dixon was quite friendly … Duffy was very friendly’. But over time, McTiernan began to think that Rich was a ‘mean’ man and a lazy Justice: ‘If you said anything to Rich about a case, he’d grab … [the references] and you would find them in the judgment … He was a terror. If he did a little work and found a case, he’d say, “Well, I’m not going to circulate my judgments because if I do they’ll bag my cases”.’
Dixon socialised with Starke, and continued to do so after Starke’s retirement. Starke, however, flatly refused to cooperate with Evatt. Evatt, in turn, refused to cooperate with Starke. When Latham was away, Starke was Acting Chief Justice. Evatt wrote to Latham in 1936 that Starke’s behaviour as presiding Justice ‘to his colleagues—and I refer to McTiernan and myself, has been disgraceful. It is only one’s sense of duty to the Court that prevents grave public scandal’. In 1948, McTiernan withdrew from hearing Henry Jones v Talbot (1948) in protest at Starke’s insults—‘This conduct interferes with my placid consideration of a case and harasses me in the discharge of my duties. To mark my protest, I retire from any further part in the hearing of this case’. The Commonwealth Parliamentary Debates record that after the incident, an MP requested the government to consider giving the Chief Justice disciplinary power to ensure ‘such incidents which detract from the standing of the court will not be allowed to recur’.
Writing to Latham in 1938, Starke derided Evatt’s and McTiernan’s tendency to follow Dixon uncritically: ‘It is gravely detrimental to the High Court and its independence that whenever a grave difference of opinion is disclosed, the “parrots” always reach the same conclusion as Dixon.’ Starke largely blamed Dixon. He wrote to Latham that Dixon ‘angles for their support and shepherds them into the proper cage as he thinks fit’. Dixon rejected this, writing in his diary: ‘Latham s[ai]d E[vatt] should not join in my judgments. I agreed but s[ai]d why should I refuse to let him when he asks.’ Starke also disagreed with aspects of Dixon’s judicial style and substance. Starke wrote to Latham: ‘Dixon sent me his judgment which I think is a delightful exhibition of the logical method at which I often scoff.’
McTiernan valued his friendship with Dixon. McTiernan said that he and Dixon ‘used to go for walks and chat about things’ and have ‘wonderful dinners’. They used to ‘tell stories, and laugh at one another’. Dixon ‘could be frivolous when he wanted to be’ as, for example, when he proposed to put a hotel ‘Do Not Disturb’ sign in front of Fullagar when Fullagar fell asleep on the Bench (see Humour). McTiernan continued to visit Dixon after Dixon’s retirement. McTiernan said that Dixon ‘viewed a lot of people, including judges and barristers, with a sort of haughty contempt’; but, according to McTiernan, Dixon would not allow himself to show it.
Dixon thought Evatt’s ‘great fault was that he generated hostile feeling’. His main social intercourse with Evatt, and with Rich and McTiernan, was over afternoon tea. But by the time Evatt became Chief Justice of NSW, Dixon had little to do with Evatt. Dixon had respected many of Evatt’s judgments, though he privately criticised him and collected stories of his ‘misbehaviour’. On the other hand, Dixon thought that Williams and Webb were ‘passengers’, and that Webb should never have been appointed. As to Williams, Dixon persuaded him to retire; Williams regretted his retirement, and was inclined to blame Dixon.
From 1950, after Starke and Evatt had gone and after the congenial Fullagar and Kitto had been appointed, ‘harmony and friendliness prevailed’, to use Dixon’s words in 1952. In 1950, Latham wrote that Fullagar and Kitto were ‘great acquisitions and the appointments have given me great pleasure. They are both highly competent and cooperative’. Dixon and Fullagar were life-long friends; the two shared many interests. Dixon admired Kitto’s ability and liked him as a person, but they were almost a generation apart. Kitto was not especially close to Fullagar, although they respected each other. There was some tension between Dixon and Taylor, but neither allowed this to interfere with the functioning of the Court. Dixon respected Windeyer, who greatly admired Dixon. Dixon had been very close to Owen since the 1930s. He arranged for Owen to succeed him as Chairman of the Central Wool Committee and often mentioned Owen for consideration for the High Court in the 1950s (see Appointments that might have been). But after Owen’s appointment to the Court, Dixon was disappointed by both the quality of Owen’s work and his attitude to it.
The character of the Court began to change part-way into the Barwick Court, when Justices who had been Barwick’s contemporaries and had sat on the Dixon Court died or retired, and were replaced by younger Justices. Kitto was the first of the Dixon Court Justices to retire. He and Barwick had worked together closely as counsel in the Bank Nationalisation Case (1948), but they differed temperamentally and their relationship deteriorated. When Barwick was appointed, Dixon, who was upset by the appointment, encouraged Kitto to resign. Kitto reminded Dixon that he, Dixon, had been persuaded not to resign when Evatt and McTiernan were appointed. Kitto said that for the sake of the Court he would remain. Nevertheless, Kitto remained in the Barwick Court for only six years, during which time the two Justices occasionally expressed their differences of judicial opinion in very strong terms.
In 1969, a year before Kitto retired, Taylor died. In his eulogy, Barwick said that Taylor was ‘a companionable man—kind, loyal and generous in his friendship’. Owen died in 1972, a month after Windeyer retired. Barwick told the Court that he had always had Owen’s ‘loyal co-operation and the benefit of his wise advice. Over all the years of our association we have been friends’. Douglas Menzies had been Barwick’s closest friend on the Court; the two became close friends during their frequent visits to the Privy Council. In 1995, Barwick wrote that Menzies’ friendship ‘became a large part of my life, a part I shall ever cherish’. Menzies, renowned for his sense of humour, provided a valuable bridge between Barwick and the younger Justices. He organised social events for the Justices, such as trips to the races, when they were on circuit. He died in 1974 and was replaced by Murphy, with whom Barwick had a poor relationship, made worse by Barwick’s role in the dismissal of 1975.
There were obvious tensions between Barwick and Aickin when Aickin appeared before the early Barwick Court. But once Aickin was appointed in 1976, his relationship with Barwick improved, and they became friendly. There were serious disputes between Barwick and some of the puisne Justices in the late 1970s and early 1980s about the Court’s move to Canberra and Barwick’s proposals for the administration of the Court. As part of the Court’s move to Canberra, Barwick attempted to introduce a compound in which to house the Justices, in an attempt to foster collegiality, but the proposal failed to gain the support of the puisne Justices.
Personal relations improved when Gibbs was appointed Chief Justice in 1981. According to Mason, ‘the more I saw of [Gibbs], the more I was impressed with him as a person and as a lawyer. He is, I think, in many respects, the most naturally courteous and considerate person I know’. The relative calm was interrupted by the ‘Murphy affair’, when personal differences arose between Murphy and other Justices; the tensions led to some Justices having only formal contact with Murphy. The affair led to the publication of correspondence between Murphy and Gibbs, in relation to Murphy’s right to sit, but even so, the relationship between Gibbs and Murphy was always civil.
An account of personal relations within the Court in more recent times remains to be provided, and awaits the passage and distance of time to yield memoirs, letters, oral histories, and other sources. Even so, that account will share with the story of personal relations in earlier times the fragmentary and quite possibly unrepresentative nature of that story. In particular, poor relations, like bad news, inevitably attract more attention than good relations. Yet acknowledgment of this phenomenon should not be allowed to trivialise the point that there can be a connection with the Court’s work. In general terms, strained relations may impede the collegial aspects of the Court’s work, whereas relations that are too cosy may be thought to take the edge off the Justices’ independence from each other and present a challenge for each Justice’s individual responsibility for decision making. Fortunately, the overall quality and professional integrity of the Justices of the High Court appears largely to have rendered these dangers more theoretical than real (see Personal relations: a personal reflection); yet the true nature of the various connections between the Justices’ personal relations and the Court’s work awaits serious study.
Clem Lloyd, ‘Not Peace but a Sword! The High Court under JG Latham’ (1987) 11 Adel L Rev 175
Bob Woodward and Scott Armstrong, The Brethren (1979)