No CrossRef data available.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 24 January 2025
Judicial biographies in Australia are rare. Even famous judges, who have led interesting and varied lives, pass without a proper record of their decisions and intellectual and personal struggles. So it is with the Right Honourable Sir Frank Kitto AC KBE, Justice of the High Court of Australia from 1950 to 1970. He settled in the Armidale District after the conclusion of his service on the High Court. He served as the Chancellor of the University of New England from 1970 until 1981. With his wife Eleanor he devoted his time (apart from working a small grazing property), as he put it, to “a mass of reading that I had had to put aside through the years of my professional life”. He described this reading as ranging over subjects “from history and biography … and philosophy to fiction, both light and classical”. He even spoke of the enjoyment of selected programmes on television. One suspects that his viewing was probably connected with his duties in late years as foundation Chairman of the Australian Press Council rather than a quest for enlightenment—generally elusive on the small screen.
This is an expanded and revised version of the Sir Frank Kitto lecture given by the author at the University of New England, Armidale, New South Wales, on 22 May 1998.
1 There are two recent biographical books on Justice Lionel Murphy: J Hocking, Lionel Murphy—A Political Biography (1997) reviewed (1998) 72 ALJ 162 and M Coper and G Williams,Justice Lionel Murphy—Influential or Merely Prescient? (1997). See also Chief Justice Barwick's autobiographical work A Radical Tory (1995) and D Marr, Barwick (1980).
2 Quoted in Australian Press Council, News August 1993 at 8.
3 Ibid.
4 See RP Meagher's obituary of Sir Frank Walters Kitto AC, KBE, “Champion of Justice, Knowledge” Australian, 18 February 1994 at 13.
5 Kitto, F W, “Why Write Judgments?” (1992) 66 ALJ 787 at 799Google Scholar.
6 (1986) 15 MULR 577 at 578.
7 Ibid.
8 Monograph by M Connor, The Right Honourable Sir Frank Kitto, unpublished, (1994). Mrs Connor is the second daughter of Sir Frank and Lady Kitto and was Justice Kitto's Associate in the High Court for nine years following his appointment to the High Court. Her monograph is deposited in the Library of the High Court.
9 Ibid at 1.
10 Ibid.
11 Ibid at 23.
12 Ibid.
13 Ibid at 2.
14 Ibid at 3.
15 Ibid.
16 (1928) 2ALJ 85.
17 He referred to Re O'Neill [1922] NZLR 468 and called Salmond J's judgment “characteristically lucid”.
18 (1928) 2 ALJ 85 at 87.
19 M Connor, above n 8 at 4.
20 Transcript of proceedings, 4 June 1984, cited ibid at 19.
21 F W Kitto, “This is My Life”, an address given to the Armidale Central Rotary Club, 1989.
22 M Connor, above n 8 at 5.
23 Attorney-General (New South Wales) v Trethowan (1930) 31 SR (NSW) 183; (1931) 44 CLR 394.
24 (1932) 47 CLR 97 (PC).
25 Phillips, J H, “Barwick v Kitto” (1997) 71 ALJ 832Google Scholar.
26 Herald Sun (Melb) 29 April 1998 at 5.
27 For example,Arthur Yates and Co Pty Ltd v Vegetable Seeds Committee (1945) 72 CLR 37 at 50.
28 For example, Grace Bros Pty Ltd v Commonwealth (1946) 72 CLR 269.
29 Bank of New South Wales v Commonwealth (Bank Nationalisation case) (1948) 76 CLR 1;Commonwealth v Bank of New South Wales (1949) 79 CLR 497 (PC); [1950] AC 227 (PC). See GE Barwick, above n 1 at 71.
30 People in Government, “The Right Hon Sir Frank Kitto KBE” (October 1968) Management Newsletter at 6.
31 Above n 5 at 796 and also at 792.
32 Ibid at 796.
33 (1950) 24 ALJ 21.
34 Ibid.
35 Ibid at 45.
36 Collins v Hill per McTiernan and Kitto JJ, 8 June 1950, unreported but noted (1950) 80 CLR 667.
37 (1950) 81 CLR 87.
38 Williams, Webb and Kitto JJ.
39 Above n 5 at 797.
40 (1950) 80 CLR iv.
41 (1951) 83 CLR 1 at 271. For a description of the similar concerns of the British Labour Government at the time, see P Deery, “'A Very Present Menace'? Attlee, Communism and the Cold War” (1998) 44(1) Aus Jo of Politics and History 69.
42 The terms of the Act are set out in a footnote in (1951) 83 CLR 1 at 1-8.
43 As he later wrote in the foreword to the first edition of R P Meagher, W C M Gummow and JR F Lehane, Equity Doctrines and Remedies (1975) at vi.
44 Cf McGinty v Western Australia (1996) 186 CLR 140 at 243 per McHugh J. Cf MD Kirby, “Deakin, Popular Sovereignty and the True Foundation of the Australian Constitution” (1996) 3 Deakin L Rev 129; HCA Wright, “Sovereignty of the People-A New Constitutional Grundnorm” (1998) 26 FL Rev 165.
45 (1951) 83 CLR 1 at 277.
46 Ibid at 278.
47 Ibid at 280.
48 Quoted in Gouriet v Union of Postal Workers [1977] 1 QB 729 at 762 per Lord Denning MR, not one of Kitto's favourites.
49 Communist Party Case (1951) 83 CLR 1 at 282.
50 Ibid at 278.
51 The referendum was held on 22 September 1951. See A Blackshield, G Williams and B Fitzgerald, Australian Constitutional Law: Theory, Commentary and Materials (1996) at 970. G Henderson, Menzies' Child-The Liberal Party of Australia (revised ed 1998) at 114ff.
52 As required by the Constitution, s 128.
53 Dennis v United States 341 US 494 (1951). By a vote of 6 Justices to 2 (Vinson CJ for the Court, Black and Douglas JJ dissenting) the Supreme Court upheld the constitutional validity of the Smith Act (Title I of the Alien Registration Act 1940 (US)). The decision was later modified, but not expressly overruled, by Yates v United States 354 US 298 (1957). After Yates no further prosecutions were brought under the Smith Act.
54 GE Barwick, above n 1, cited by Brennan CJ (1997) 187 CLR vii.
55 The decision of the High Court in 1951 may be contrasted with the decision of the Constitutional Court of Turkey forty years later in 1991. This dissolved the United Communist Party of Turkey, liquidated its assets and banned its officials from holding .political office. These steps were taken pursuant to the Turkish Law No 2820, sec 107(1), the constitutional validity of which that court upheld. A proceeding by the United Communist Party before the European Court of Human Rights succeeded. That Court found unanimously that the Turkish actions violated the European Convention on Human Rights and Fundamental Freedoms, Art 11 (freedom of association). It ordered Turkey to pay damages to the individual claimants: United Communist Party of Turkey v Turkey (1998) 26 EHRR 121.
56 Kartinyeri v Commonwealth (1998) 72 ALJR 722 at 727 per Brennan CJ and McHugh J and at 751 per Kirby J (dissenting). See also at 735 (fn 63) and 736 (fn 65) per Gaudron J referring to Kitto J's judgments in the Communist Party case and Ex parte Australian National Airways Pty Ltd (1964) 113 CLR 205 at 225-226.
57 Labour Relations Board of Saskatchewan v John East Ironworks Limited [1949] AC 134 at 148.
58 The Queen v Trade Practices Tribunal; Ex parte Tasmania Breweries Pty Ltd (1970) 123 CLR 361 at 373.
59 Ibid at 374.
60 Airlines of New South Wales Pty Ltd v New South Wales [No 2] (1965) 113 CLR 54 at 115.
61 Rootes v Shelton (1967) 116 CLR 383.
62 Jacobs JA in his reasons in Rootes v Shelton (1966) 86 WN (NSW) (Pt 1) at 101-102. Justice Jacobs became a Justice of the High Court in February 1974 and served until April 1979. Cf generally JJ Doyle, “Judicial Law-Making—Is Honesty the Best Policy?” (1995) 17 Adel L Rev 161 at 203.
63 (1967) 116 CLR at 386-387.
64 Above n 5 at 794 (footnote omitted).
65 For example, Lord Reid, “The Judge as Law Maker” (1972) 12 JPTL 22 Cf MH McHugh, “The Judicial Method” (1999) 73 ALJ 37.
66 International Covenant on Civil and Political Rights, Art 14.1. See FF Martin and Ors,International Human Rights Law and Practice (1997) at 43.
67 Cf Forgas, JP (ed),Emotion and Social Judgments (1991) at 76-78Google Scholar.
68 Cf AR Blackshield, “Quantitative Analysis: The High Court of Australia, 1964-1969” [1972] Lawasia l.
69 Bader Ginsburg, R, “Judicial Independence” (1998) 72 ALJ 611 at 611Google Scholar.
70 Above n 5 at 787 “In an after dinner speech … a member of the Bar once urged the High Court to put more colour into its written work. (I think he regarded its spoken work as colourful enough)”.
71 Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 253 per Deane J.
72 Judiciary Act 1903 (Cth), ss 35, 35AA, 35A. See the remarks of Gleeson CJ on the occasion of his swearing in as Chief Justice of Australia, 22 May 1998, concerning the effect on the character of the High Court and its work of the abolition of Privy Council appeals and the introduction of special leave in all civil appeals.
73 F W Kitto, foreword to the First Edition of Meagher, Gummow and Lehane, above n 43.See 3rd edition at v.
74 Ibid at vii.
75 Lord Reid, above n 65.
76 Foreword to Meagher, Gummow and Lehane, above n 43 at v.
77 Judicature Act 1873 (UK), s 24. See now Supreme Court Act 1981 (UK), s 49.
78 Eventually the New South Wales Parliament enacted the Law Reform (Law and Equity}Act 1972 (NSW). This Act contains provisions equivalent to the Judicature Act, ss 24 and 25. See Meagher, Gummow and Lehane, above n 43 (3rd ed 1992) at 44. Cf Felton v Mulligan (1971) 124 CLR 367 at 392; 0' Rourke v Hoeven [1974] 1 NSWLR 622 at 626 per Glass JA.
79 Foreword to Meagher, Gummow and Lehane, above n 43 at vii.
80 For example,Breen v Williams (1996) 186 CLR 71.
81 For example,Mclnerney v MacDonald [1992] 2 FCR 138 at 152; (1992) 93 DLR (4th) 415 at 424 which was not followed in Breen v Williams.
82 I am grateful to Lehane J of the Federal Court of Australia for the following examples of Kitto J's style and method in this area: Attorney-General (NSW) v Donnelly (1958) 99 CLR 538 at 576 (charitable trusts—approved on appeal [1959] AC 457 (PC)); Blomley v Ryan (1956) 99 CLR 362 at 412 dissenting (unconscionable conduct); Livingston v Commissioner of Stamp Duties (Queensland) (1962) 107 CLR 411 at 448-452 (equity acts in personam); Shepherd v Federal Commissioner of Taxation (1965) 113 CLR 385 at 393 (assignment of future property); Olsson v Dyson (1969) 120 CLR 365 at 374 (equitable assignment and estoppel).
83 Sections 42 and 43.
84 (1965) 113 CLR 265 at 273-274.
85 Kitto was also a major figure in the Australian case law on intellectual property. I am indebted to Gummow J for suggesting the following cases as examples both of his style and substance: In re Wolanski's Registered Design (1953) 88 CLR 278; Southern Cross Refrigerating Co v Toawoomba Foundry Pty Ltd (1953) 91 CLR 592; Mark Foy's Ltd v Davies Coop & Co Ltd (1956) 95 CLR 190 at 205; National Research Development Corporation v Commissioner of Patents (1959) 102 CLR 252 at 260—a joint judgment (with Dixon CJ and Windeyer J) but clearly bearing his imprint; The Shell Co of Australia Ltd v Esso Standard Oil (Australia) Ltd (1963) 109 CLR 407 at 420; Bayer Pharma Pty Ltd v Farbenfabrieken Bayer AG (1965) 120 CLR 285 at 287; Re Carl Zeiss Pty Ltd's Application (1969) 122 CLR 1. He also made a notable contribution to the law of taxation in Australia. Hill J of the Federal Court of Australia has suggested the following cases: Clowes v FCT (1954) 91 CLR 209 (significant in explaining profit making schemes); NSW Associated Blue-Metal Quarries Limited v FCT (1956) 94 CLR 509 (important in looking at mining operations and the vexed question of the distinction between law and fact); Shepherd v FCT (1965) 113 CLR 385; FCT v Western Suburbs Cinemas Ltd (1952) 5 AITR 300 (still a pivotal authority on the problem of deductibility of repairs).
86 Above n 5 at 792.
87 Press Council, Commentary on the Law Reform Commission's Discussion Paper noted “The Seventh Summer Judicial Conference 1978” (1978) 52 ALJ 113 at 115.
88 Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 192;Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.