Counsel, notable. Although the High Court is sometimes confronted by litigants in person, most cases are argued by counsel, whose advocacy of their clients’ cases contributes, to some extent, to the formulation and shaping of the legal doctrines ultimately adopted by the Court. Over the years, in Arthur Dean’s phrase, ‘a multitude of counsellors’ have come and gone, with varying degrees of success. These have included most Justices of the Court at earlier stages of their careers (see table), though Evatt also appeared in some celebrated cases after leaving the Court (in particular, the Bank Nationalisation Case (1949) and the Communist Party Case (1951)). As the Justices have been drawn mainly from the ranks of barristers (see Appointment of Justices), and then from among the most prominent or successful, it is not surprising that most—and not only those with the prodigious reputations of Dixon, Barwick, and Aickin—would take their place in any account of the notable counsel who have appeared before the Court. Their stories are told in their respective biographical entries.
Even among the counsel who have not been appointed to the Court, it would be invidious to attempt to identify, by some objective criterion or criteria, those who might be described as notable. Opinions vary widely among the peer group of Justices, former Justices, counsel, and former counsel, as to both the criteria and their application. What follows is a selective survey, with a particular emphasis on the Court’s early years, of some of the many counsel—other than those who later themselves became Justices—who, for diverse reasons, may be considered worthy of notice.
The first reported case in the High Court—Hannah v Dalgarno (1903)—pitted Wise against Sly. Bernhard Ringrose Wise (1858–1916) had returned to Sydney in 1883 after a brilliant academic career in England. Associated in NSW politics with Henry Parkes and the free trade movement, he was also a strong supporter of the emerging Labor movement. A powerful campaigner for federation and a framer of the Constitution—he was one of the celebrated Lucinda party in 1891—he failed to win election to the first federal Parliament, but remained active in NSW politics. His strong support for the High Court in its first year of sittings helped to establish its reputation. Although unsuccessful in Hannah v Dalgarno, he persuaded the Court to adopt a narrow definition of excise duties in Peterswald v Bartley (1904), and to uphold the powers of a Royal Commission in Clough v Leahy (1904). After an extended absence in England (1904–08), he resumed his High Court practice in 1909—representing the Commonwealth in the Coal Vend Case (1911), and the Speaker of the NSW Legislative Assembly in Willis and Christie v Perry (1912). He died in London in 1916.
Richard Sly (1849–1929) was one of three lawyer brothers—including George, a founder of the firm of Sly and Russell—who, unusually for the time, all had LLD degrees. As a barrister, Sly was notoriously nervous, constantly fiddling with a piece of pink tape while addressing the Court. After Hannah v Dalgarno, he made relatively few High Court appearances, and became a judge of the Supreme Court of NSW in 1908. In Boxall v Sly (1911), his award in a land compensation case was unsuccessfully challenged by Wise.
Wilfred Blacket (1859–1937), a celebrated barrister and law reformer, was equally known for his literary talents—as a frequent contributor to the Bulletin and its first subeditor—and for his zest as a legal raconteur, preserved in his book May It Please Your Honour (1927). His early High Court appearances were mainly in customs and immigration matters and in minor criminal cases, but with briefs in constitutional cases such as R v Sutton (1908) and Osborne v Commonwealth (1911), his reputation grew. He took silk in 1912, and continued to appear in the High Court until 1924. His greatest triumph was his victory in the Wheat Case (1915).
Walter Coldham (1860–1908), a champion tennis player and all-round athlete, had been admitted to the Melbourne Bar in 1884. With expertise in mathematics, engineering, and science, he had a flourishing patents practice (see, for example, Potter v BHP (1906); Cullen v Welsbach Light Co (1907)), and frequently indulged the Court with lengthy scientific dissertations in other cases—for example, in a detailed explanation of the chemical and geological properties of guano in Cuming Smith v Melbourne Harbour Trust (1905). On one such occasion, Griffith remarked that, having heard Coldham at great length, he was ‘none the wiser’—to which Coldham replied: ‘Not wiser, your Honour, but perhaps better informed.’
Initially, not all leading counsel thought it particularly important or prestigious to appear before the nascent High Court. Julian Salomons (1935–1909), for example, the acknowledged leader of the Sydney Bar at the time, had opposed the Court’s creation; and after five appearances in the Court’s first few months of sittings, including Clissold v Perry (1904) and McLaughlin v Fosbery (1904), returned only in 1907—to argue (successfully) in R v Governor of SA (1907) that the Court had no power to issue a writ of mandamus to a state Governor, and (singularly unsuccessfully) in Baxter v Commissioners of Taxation (1907) that the High Court as ‘an inferior Court’ was bound by the Privy Council decision in Webb v Outtrim (1906), and that in any event Griffith, Barton, and O’Connor should disqualify themselves because, as residents of NSW, they were potentially liable to pay the tax whose validity was under challenge. His early appearance in Saunders v Borthistle (1904) did, however, launch a remarkable High Court career for his junior, Richard Windeyer (1868–1959), uncle of the future High Court Justice Victor Windeyer.
Among the most successful counsel of the early years were two who became Chief Justices of their state Supreme Courts: William Cullen (1855–1935), later Chief Justice of NSW (1910–25), and William ‘Iceberg’ Irvine (1858–1943), later Chief Justice of Victoria (1918–35). Like many barristers of his generation, Cullen—another LLD—was active in the federal movement, in state politics, and in University life: he was Chancellor of the University of Sydney from 1914 to 1934. An early proponent of the abolition of Privy Council appeals, he supported the Court strongly from the time of his early appearances in the Municipal Rates Case (1904) and Clissold v Perry. Often appearing for the Commonwealth—for instance, in Commonwealth v NSW (1906) and Baxter v Commissioner for Railways (NSW)—he also appeared for NSW, notably (though unsuccessfully) in the Surplus Revenue Case (1908). But his practice was diverse: he appeared for the Sydney solicitor John McLaughlin (see Litigants, notable, 1903–1945) in McLaughlin v Daily Telegraph (1906) and McLaughlin v Freehill (1908), and for Lever Bros in a successful defence of their trade mark ‘Sunlight soap’ (Lever Bros v Abrams (1909)). According to John Peden, Griffith regarded him ‘as being in the first rank’ of the barristers then practising before the Court.
Irvine, who in 1886 had written a book with Gavan Duffy on Law Relating to the Property of Women, had been active in Victorian politics since 1894—as Attorney-General (1899–1900), Leader of the Opposition (1901–02), and Premier (1902–04). It was during his two years as Premier that he acquired the soubriquet ‘Iceberg’, attributed to his appearance of prim austerity and his ‘monosyllabic, incisive method of speech’. On losing office in February 1904, he resumed his practice at the Bar, and had a flourishing High Court practice from that time on—often as a leader to Starke (whose own High Court practice was extremely large). He was active in the Victorian resistance to the Griffith Court’s doctrine of intergovernmental immunities, urging the Court in Flint v Webb (1907) to settle the matter by granting a certificate for appeal to the Privy Council.
In 1906, he began a controversial career in federal politics. Alfred Deakin, forming a ministry in 1909, was advised: ‘This man must be excluded at all costs.’ In World War I, he was a strong supporter of conscription. Throughout this time, he maintained an active practice in the High Court. As Commonwealth Attorney-General in 1913–14, he narrowly survived a censure motion because, while Attorney-General, he had represented the Italian Marconi company in litigation against the Commonwealth (see Marconi’s Wireless Telegraph Co v Commonwealth (No 2) (1913)). In the same period, he also appeared for the Colonial Sugar Refining company in Merchant Service Guild v Commonwealth Steamship Owners Association (1913), and for Schweppes in Schweppes v Rowlands (1913), successfully opposing the grant of a trade mark for ‘Sarilla’ ginger beer. In the major case of the period on the defence power, Farey v Burvett (1916), he led Starke in an unsuccessful challenge to government regulations fixing the price of bread. His involvement in wartime controversies ended only when he became Chief Justice of Victoria in March 1918.
No such judicial advancement awaited Arthur Feez (1860–1935), who in 1901, after 20 years at the Bar, was firmly established as Queensland’s leading barrister. In 1882, he had been the best man at Nellie Melba’s wedding. His appeals to the High Court often had a distinctive Queensland flavour or background: among his more important cases, he appeared on behalf of the Brisbane Tramways Company in the Union Badge Case (1913) and the Tramways Cases (1914); on behalf of Laura Duncan in Duncan v Queensland (1916) and Duncan v Theodore (1917); on behalf of members of the Queensland Legislative Council, seeking unsuccessfully to block constitutional moves for its abolition, in Taylor v A-G (Qld) (1917); and on behalf of Queensland pastoral employers in Waddell v Australian Workers Union (1922). In many of these cases, he appeared to be swimming against a socialist tide. Indeed, his determined resistance to socialism found him frequently at odds with the Labor-dominated political establishment in Queensland—most notably when he spearheaded the opposition to the appointment of Thomas McCawley to the Supreme Court of Queensland (see McCawley v The King (1918))—and led ultimately to his being passed over for appointment to the Supreme Court himself. When Frank Brennan—the father of the future High Court Chief Justice—was appointed to the Supreme Court in 1925, Feez moved in protest to Sydney, where he had some late High Court successes—persuading the Court in Mathews v Foggitt Jones (1926) that a sausage was not a ‘carcase’ or ‘portion of a carcase’, and in Roman Catholic Archbishop of Sydney v Metropolitan Water, Sewerage & Drainage Board (1928) that St Patrick’s College at Manly was entitled to an exemption from water rates.
No less vehement in their opposition to socialism were EF Mitchell (Edward) (1855–1941), from Melbourne, and EM Mitchell (Ernest) (1875–1943), from Sydney. Both were among the leaders of their respective state Bars, and made regular appearances in the High Court during its first four decades: sometimes, as in McArthur v Queensland (1920), the two Mitchells appeared together.
Edward Mitchell, admitted to the Bar in 1881 and appointed KC in 1904, dominated the Court’s constitutional work in its early years, and was also a notable equity lawyer. As Chancellor of the Anglican diocese of Melbourne, he encouraged Archbishop Henry Clarke to sue successfully for defamation in Norton v Clarke (1911). In the High Court, especially in constitutional cases, he and ‘Iceberg’ Irvine frequently appeared together—for example, in Huddart Parker v Moorehead (1909), SA v Victoria (1911), and A-G (Qld) v A-G (Cth) (1915)—or for different parties in the same interest, as in R v Barger (1908) and in the Woodworkers Case (1909). On other occasions, they were on opposite sides: for example, in Webb v Syme (1910)—as to income tax on the trust estate of the late David Syme—and in Packer v Peacock (1912), an early case on contempt of court.
Ernest Mitchell was admitted to the NSW Bar in 1906 and became a KC in 1925. As counsel, he played a leading role in the great cases of the 1930s on section 92 of the Constitution (see Interstate trade and commerce), and also appeared on behalf of the aviator Henry Goya Henry in both of his High Court appeals.
Despite their 20-year age difference and their different state backgrounds, the two Mitchells were united in their opposition to NSW Premier Jack Lang. Edward Mitchell led the public campaign against Lang, both through articles in the Melbourne Argus and through his book What Every Australian Ought to Know (1931). Ernest Mitchell appeared (free of charge) for the plaintiffs in A-G (NSW) v Trethowan (1931), successfully blocking attempts to abolish the NSW Legislative Council. He also appeared on behalf of the Commonwealth in the State Garnishee Cases (1932). From 1933 to 1943, he was himself a NSW Legislative Councillor.
During the Court’s earliest years, Leo Cussen (1859–1933) was another leading barrister with a wide-ranging practice, although, like Starke, he never took silk. His appearances in the High Court were mostly as a junior, for example to Isaacs in Bond v Commonwealth (1903) and Deakin v Webb (1904). Appointed to the Supreme Court of Victoria in 1906, he sat as a judge of that Court until his death in 1933. A second Leo Cussen, admitted to the Bar in 1908, was also a notable advocate, though his health failed early. Initially he, too, appeared mostly as a junior—to Gavan Duffy in Peacock v The King (1911), to Irvine in R v Bernasconi (1915), and frequently to Starke. But by 1917, he was appearing on his own. In Lennon v Scarlett & Co (1921), he appeared as leading counsel opposed to Latham and Robert Menzies; and in Horne v Barber (1920), he led Dixon—though in later cases, after Dixon became a KC, those roles were reversed.
Menzies described the elder Cussen as ‘one of the great judges of the English-speaking world’; and Dixon expressed regret that, like Frederick Jordan, Cussen was never appointed to the High Court (see Appointments that might have been). A similar regret was expressed by the legal profession in SA over the non-appointment of Francis Villeneuve Smith (1883–1956), whose West Indian grandmother was descended from Nelson’s great adversary at the battle of Trafalgar, the French admiral Pierre-Charles Villeneuve. Admitted to the SA Bar in 1906, and appointed KC in 1919, Villeneuve Smith was one of the leading advocates of the next generation of High Court counsel. That generation also included Wilbur Ham (1883–1948) and Robert Menzies (1894–1978).
Ham, related on his mother’s side to the Latham family, appeared frequently in the 1930s and 1940s, particularly in cases involving taxation law and constitutional law (see, for example, the First Uniform Tax Case (1942)), but also in other landmark cases such as Clements v Ellis (1934) and Australian Knitting Mills v Grant (1933). His children bore the surname ‘Wilbur-Ham’. Menzies—who remembered Ham fondly as ‘a master of polished profanity’—secured his own place in Australian legal folklore with his appearance at the young age of 25 in the landmark Engineers Case (1920)—alone against a range of opposing counsel including Ham, Edward Mitchell, Latham, and Evatt—and perhaps even more with his colourful recounting, if not embellishment, of that appearance in his University of Virginia lectures, published in 1967 as Central Power in the Australian Commonwealth. Menzies opened by relying upon a distinction that had emerged from earlier decisions. On being told by Starke that his argument was ‘nonsense’, he responded somewhat brashly that it was a nonsense forced upon him by the decisions of the Court, and that he would be happy to advance a more sensible argument if the Court were prepared to question any of those earlier decisions. The Court retired briefly and then announced that it would hear argument on the reopening of the earlier cases. It was therefore little surprise when those cases were overruled—with the changes in the composition of the Bench, it was a case that was waiting to be won (see Intergovernmental immunities)—but it cemented Menzies’ place in Australian legal history.
Menzies was not the only young political aspirant in the early twentieth century who decided that the way to political success lay through practice at the Bar. The young activists in Sydney at the turn of the century who honed their political skills at the Bar included another future Prime Minister, WM Hughes (1862–1952), and two future Premiers of NSW, William Holman (1871–1934) and Thomas Bavin (1874–1941). Hughes appeared as a barrister before the High Court only rarely, and only in industrial cases (see, for example, Trolley, Draymen and Carters Union v Master Builders Association (1905)). Holman was NSW Attorney-General from 1910 to 1913, and Premier from 1913 to 1920. A brilliant orator, he was also among the leading theoreticians of the Labor movement in Australia, which he had joined in 1890 along with Hughes and George Beeby (1869–1942), later Chief Judge of the Commonwealth Court of Conciliation and Arbitration. In later years, Holman fell out with Hughes, primarily because of his commitment to state politics rather than federal politics. Admitted to the Bar in 1903, he soon developed a general practice that included some of the most important industrial cases of the time: Clancy v Butchers’ Shop Employés (1904); the Railway Servants Case (1906), as junior to Higgins; the Union Label Case (1908); and Ex parte Whybrow (1910). After his defeat as Premier in 1920, he became a KC and again appeared in the High Court from 1922 onwards, notably in the Limerick Steamship Case (1924).
Bavin’s political allegiances, like those of Hughes, were less enduring. Admitted to the Bar in 1897, he shared chambers with Wise and was befriended by Barton. After a brief career as a law academic (at the Universities of Sydney and Tasmania), he joined Barton in Melbourne in 1901 as Barton’s private secretary, and in 1903 moved with Barton to the High Court as his associate, while simultaneously continuing as a private secretary to the new Prime Minister, Deakin. Returning to the Sydney Bar in 1906, he quickly developed a flourishing practice. In Smith v Watson (1906), he and Holman appeared together; six years later, in R v Smithers; Ex parte Benson (1912), they were on opposite sides. By that time, Bavin had appeared—often as a junior to Cullen and often on behalf of the Commonwealth—in important cases including Baxter v Commissioners of Taxation (NSW), the Steel Rails Case (1908), and the Union Label Case. In Baxter v Ah Way (1909), he was junior to Wise and Blacket; in 1911 in the Coal Vend Case, he was junior to Wise.
After entering NSW politics in 1917 as a member of Holman’s Nationalist Party (then still aligned with Hughes), he increasingly quarrelled with Holman. In 1920, after unsuccessfully moving a motion of no confidence in Holman’s leadership, he resigned from the party and joined the Progressive Party (which Beeby had founded in 1915). From 1922 to 1925, he was Attorney-General in the Nationalist government of Premier George Fuller. Even after entering politics, Bavin had maintained his private practice at the Bar, and had appeared in R v Brisbane Licensing Court; Ex parte Daniell (1920); but as Attorney-General, his choice of briefs appeared to reflect his changing politics. In earlier industrial cases, he had often appeared for trade unions—particularly for the Merchant Service Guild in a series of cases in 1913, in Holyman’s Case (1914), and (with Menzies) in Merchant Service Guild v Commonwealth Steamship Owners Association (1920), a sequel to the Engineers Case. But as Attorney-General, he represented employers in some of the most important cases of the 1920s (see Knox Court and arbitration): George Hudson v Australian Timber Workers Union (1923); Waterside Workers Federation v Gilchrist, Watt & Sanderson (1924); Hillman v Commonwealth (1924); and the Burwood Cinema Case (1925).
When Labor took office in 1925 under Lang, Bavin became Leader of the Opposition. Himself becoming Premier in 1927, he committed NSW to that year’s Financial Agreement, which was ultimately to be Lang’s downfall. He also introduced the amendments to the Constitution Act 1902 (NSW), which in Trethowan’s Case were held to have effectively blocked Lang’s attempt to abolish the Legislative Council. After losing the 1930 election, he returned to his High Court practice (see, for example, Telegraph Newspapers v Bedford (1934)); but by the time he was appointed to the Supreme Court of NSW in 1935, he was ailing, and confined himself mainly to hearing chamber applications.
The politician–barristers are notable mainly for their contributions to Australian politics, and in later careers of this kind the political element quickly overshadowed the nascent legal career. Gough Whitlam, for example, had five reported appearances as a barrister in the High Court. In Brady v Thornton (1947), he appeared as a junior to Taylor. In Saffron v The Queen (1953), Whitlam and Mason appeared together as juniors, opposing Barwick; in Grannall v Marrickville Margarine (1955) and in Owen v Woolworths Properties (1956), Whitlam was Barwick’s junior. In Thompson v Easterbrook (1951), he appeared on his own. Peter Costello had two High Court appearances, in the Ranger Uranium Case (1987) and the Wooldumpers Case (1989), before his election to Parliament in 1990. On the other hand, a distinguished career at the Bar has sometimes been interrupted by a relatively brief interlude in politics. Tom Hughes, who first took silk in 1962, returned to a position of leadership at the Sydney Bar after serving as Attorney-General in the Gorton government (1969–71); while RJ Ellicott, after regular appearances in the High Court as Commonwealth Solicitor-General (1969–73), went on to become Attorney-General in the Fraser government (1975–77), and—after a brief period as a judge of the Federal Court (1981–83)—has continued to play a prominent role among senior High Court counsel.
Other eminent counsel over the years have been notable for their contributions to the formation of legal doctrine. The extent to which the ideas and doctrines adopted by the Court may be sheeted home to the argument of particular counsel is always difficult to judge; few Australian counsel can claim to have had an influence on the development of the law comparable to that of Daniel Webster on the doctrines espoused by the United States Supreme Court in the nineteenth century. But in the generation that included JD Holmes (1907–73), Rae Else-Mitchell (1914–), Bruce Macfarlan (1910–78), and Nigel Bowen (1911–94) from Sydney and PD Phillips (1897–1970) from Melbourne, the standard of argument before the High Court was consistently high; and in any generation, Maurice Byers (1917–99) must be regarded as outstanding. As Commonwealth Solicitor-General from 1973 to 1983, and later in major cases such as Australian Capital Television v Commonwealth (1992) (see Free Speech Cases; Implied constitutional rights), Kable v DPP (1996), and Wik (1996), he had an extraordinary success rate. Like those of Robert Menzies, his arguments may have fallen on the ears of a receptive Court; but in his genial avuncular style, he projected his inner character and made the Court comfortable with what still appears to some as a radical proposition that the Constitution contains an implicit guarantee of the freedom of political communication. Melbourne barrister Ron Castan (1939–99) also had to win the confidence of the Court in the landmark native title case of Mabo (1992) in order to persuade it to depart from long settled expectations about land law in Australia, and this he did with the sine qua non of all successful counsel: thorough preparation and careful scholarship.
Apart from the Solicitors-General of the Commonwealth and the states—who, in the latter part of the twentieth century, came virtually to monopolise argument in constitutional cases—two counsel with significant, if not dominating, High Court practices in recent times have been David F Jackson (originally from Brisbane) and David Bennett (from Sydney), the latter taking up appointment as Commonwealth Solicitor-General in 1998. Jackson, who began his career as Gibbs’ associate in the Supreme Court of Queensland, and represented the Queensland government in most of the great constitutional cases of the 1970s, returned to the Bar in 1987 after a brief period as a judge of the Federal Court, and since 1996 has practiced mainly from Sydney.
Although the ranks of prominent High Court counsel have been dominated by those who were later elevated to the Bench—including not only Dixon, Barwick, and Aickin but also, for example, Isaacs, Gavan Duffy, Knox, Starke, Evatt, Latham, Kitto, Taylor, Douglas Menzies, Mason, Deane, McHugh, and Gleeson—not all those who have appeared before the Court have fitted the mould of being white, Anglo-Celtic males. The first woman to appear before the Court was Roma Mitchell (1913–2000), who was only 25 when she argued Maeder v Busch (1938), a patents case. Mitchell went on to be Australia’s first woman QC, first woman judge (of the Supreme Court of SA), and first woman state governor (SA). Joan Rosanove (1896–1974), of the Melbourne Bar and a specialist in family law, appeared before the Court shortly after Mitchell, in Briginshaw v Briginshaw (1938). Gaudron made regular appearances as NSW Solicitor-General in the 1980s, but women entered this field late and remain under-represented (see Women practitioners). Chinese Australians, however, were represented from the very beginning. William Ah Ket (1876–1936) joined the Melbourne Bar in 1903 and often appeared in the High Court for Chinese Australian litigants in cases involving discrimination of one kind or another: see, for example, Ah Yick v Lehmert (1905), Potter v Minahan (1908), and Ingham v Hie Lee (1912).
As far as can be ascertained, and despite the Court’s increasing contact with issues involving race and Aboriginal peoples, no indigenous Australian, from among the still very small number of the legally qualified, has yet appeared as counsel before the High Court.
Arthur Dean, A Multitude of Counsellors: A History of the Bar of Victoria (1968)
JM Bennett (ed), A History of the New South Wales Bar (1969)
Graham Fricke, Judges of the High Court (1986)
HV Evatt, Australian Labour Leader: The Story of WA Holman and the Labour Movement (1940)