The High Court in the 1930s … Judges bickering and distrustful of each other … Drawing on dairy notes, Gideon Haigh details the disharmony … Was this a period of peak judicial unhappiness … Justice in the hands of riven justices … C.N. Brown reporting

Doubtless there has been enmity, distrust and dislike among judges at other times, viz. during Barwick’s crusty tenure as chief justice, the venomous Gibbs-Murphy relationship, and Gleeson CJ being offside during the Kirby-Heffernan crisis. 

In fact, it seems entirely probable that whenever a small group of strong egos have to work in close proximity temperatures will rise and temperaments will grate. 

However, the court under Frank Gavan Duffy and then John Latham as chief justices saw an especially torrid time, as Haigh luridly spells out. 

Duffy was regarded as an interim CJ after Issac Issacs went off to Yarralumla. For a short while the Duffy court was genial enough. Hayden Starke would join in judgments with Bert Evatt and Eddie McTiernan. But Starke, a product of the Melbourne bar, was generally perceived to be an unpleasant piece of work and fell out with everyone, while Duffy was getting old and less able to cope with the friction. 

These are Gideon Haigh’s words: 

“Starke by all accounts, was a boor, devoid of small talk, imperious with underlings, ignoring meetings others called, striding through doors others opened, ostentatiously smoking cigars in the presence of Evatt [which made him] ‘sick in every fibre of his being’.” 

Starke was not only antagonistic to H.V. Evatt, but to his brother Clive, who frequently appeared before the court. The brilliant Bert Evatt, it must be remembered, was only 36 when he was appointed to the court. 

Keith Brennan, Evatt’s associate, described Starke as “absolutely insufferable”. On a return boat trip from Perth where the court had sat on circuit, Evatt urged Brennan to crawl through a porthole into Starke’s cabin and scatter breadcrumbs on his sheets. 

The associate wasn’t up for the prank even though was not unsympathetic to the idea. For a large part of the 1930s Starke was so disassociated with the other members of the court that would write his own single judgments.  

It was common for the judges not to travel together to and from the capital cities – some took the train, others went by ship. Collegiality was fractured. 

Evatt was also having trouble with attorney general Menzies, requesting that a partition be removed from his chambers so as to improve the light and thereby relieve his eye-strain. 

Menzies was unmoved. 

Starke’s dislike of George Rich and Eddie McTiernan was so intense that they could not be left together to form a court of three.

Starke and Duffy were hankering for status and imperial baubles. Duffy wanted a GCMG, while Starke was incensed that Rich, as senior puisne judge, was a Privy Councillor. He said: 

“Rich will be like a dog with two tails … 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.” 

On one occasion, Starke was presiding justice when Rich was unavailable, during which time he was pointedly scornful of Evatt and McTiernan. Evatt wrote to Duffy, who was still absent and unwell:

“I regret to say 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 public scandal.” 

Duffy was under pressure to resign, but prevaricated. Former attorney general, opposition leader and occupant of the seat of Kooyong, John Latham, was waiting in the wings, although he was widely regarded as an uninspiring candidate. 

Dixon notes that Menzies came to see him, saying that Duffy had agreed to step down, adding that “he should be behind a bargain counter”. 

Even then, the CJ didn’t resign – instead taking four months leave. Much of the background information about this period comes from Owen Dixon’s diaries, from which other historians have also drawn. Menzies consulted Dixon on all manner of manoeuvres, legal and political. 

At one point Menzies floated the idea that he should be chief justice.  

The Lyons government was determined that Evatt should not get the top job at the court. Even though his legal mind was widely respected, he was seen as too volatile, too attracted to correcting society’s ills, and too connected to Labor. 

An appointment was pressingly needed as it was anticipated that Starke might make a public attack on Duffy, bringing the court into public controversy. At the same time, Evatt was jockeying to have George Rich, 71, appointed as a stop gap CJ, pending the election of a Labor government. 

Ultimately, after considerable shilly-shalling and disapproval, Latham was appointed. 

Haigh reports: 

“He was a slow remote, deliberate man whose wintry disposition reflected in his silver hair, grey wardrobe, and the pince-nez perched on a long, unsmiling face. He was an unoriginal thinker with a precise, dour and pedagogical style. He was also a palpably political appointment – an idea that in 1930 had caused outrage.” 

At Latham’s swearing in, such was the dismay, that Dixon was “very curt” with Menzies. 

Latham arrived at an unhappy court, illustrated by the way Starke, Dixon, Evatt and the new CJ handled the Arnold Soderman case. 

Soderman admitted kidnapping and killing four young girls. There was evidence that he had a serious mental disorder. His trial was conducted by the Victorian Supreme Court judge Charles Duffy, the son of Frank Gavan Duffy. 

Soderman’s main point was that Duffy had failed to explain to the jury the meaning of the M’Naghten test. 

By the second morning of the appeal, Latham had already dictated his reasons, dismissing the appeal. Starke, according to Dixon, was “terrible, eluding sadism”. Evatt and Dixon, both opponents of the death penalty, were at one – although writing separate judgments. 

Evatt demolished Duffy’s “substantial misdirection” and later gave a heartfelt tribute to Dixon for his clear explanation of the M’Naghten test. 

Nonetheless, Latham and Starke prevailed, dismissing the appeal and confirming the death penalty for Soderman. 

Dixon was contemptuous of Starke, whom he accused of giving “no judicial consideration to the case”. Latham was “quite unmoved by my attempt at legal reasoning”. 

Evatt later found out from the criminal psychologist Reg Ellery that Soderman had never been adequately examined. Only a post-mortem showed lepthomeningitis, which brought about violent seizures. 

Another revelation from Dixon’s diaries was that he assisted his colleagues with their deliberations, in particular Rich and McTiernan.

In The King v Brislan ex parte Williams, Dixon dissented but wrote the majority judgment for Rich. 

In another case, Sun Newspapers v Federal Commissioner of Taxation, Dixon heard an appeal from a judgment he had prepared for Rich, and found for himself. 

Work by scholars at the University of New South Wales, using software to detect similarities in style and wording, found that Dixon wrote 18 percent of Rich’s judgments and four percent of McTiernan’s. 

The backbiting and clawing showed a court of “clever, proud, arrogant men who could also be petty and priggish”.