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Published online by Cambridge University Press: 24 January 2025
Knox has generally been regarded as a disappointing Chief Justice; his high distinction at the Bar was not matched by his achievements as a judge. His undoubted skills as a lawyer were overbalanced by the distractions of interests outside the law.
Australia’s second chief justice has generally received a bad press. Perhaps this is due in part to the circumstances of his departure, which did nothing to enhance the prestige of the office. But it may be worthwhile to revisit the decade of his stewardship, for it marks the commencement of a centralist approach to the interpretation of our Constitution. It may also be fruitful to examine the extent to which the justices under his leadership collaborated in preparing their judgments, for that question has a contemporary relevance.
1 Cowen, Z, Sir John Latham & other Papers (1965) at 34Google Scholar.
2 See text below at nn 41-46.
3 Evatt, H V, William Holman (1979) at 116Google Scholar.
4 The King and Attorney-General of the Commonwealth v Associated Northern Collieries (1911) 14 CLR 387; 15 CLR 65 (FC); 18 CLR 30 (PC).
5 Griffith was, according to Sir Dixon, Owen, “dominant and decisive … he just felt that he knew; and that what he knew was right.”: see (1964) 38 ALJ 3 at 6Google Scholar.
6 According to Griffith's associate, Sir Samuel was courteous, but he would “dispose of a fallacious argument” in a few short words; it was “always good policy not to pursue a point after he had expressed the view that it was untenable”. See Joyce, RB, Samuel Walker Griffith (1984) at 219Google Scholar.
7 Z Cowen, above n 1.
8 WM Hughes to RM Ferguson, 16 Oct 1919 Navar papers, National Library, 696/22,24.
9 A Deakin in J A La Nauze (ed), Federated Australia (1%8) at 97.
10 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129.
11 Menzies, R G, Central Power in the Australian Commonwealth (1967) at 38-39CrossRefGoogle Scholar.
12 Ibid at 39.
13 Cowen, Z, Isaac Isaacs (1967) at 160Google Scholar.
14 F Gavan Duffy to SW Griffith, 23 Dec 1919 quoted in RB Joyce, above n 6 at 357.
15 Z Cowen, above n 13 at 121.
16 Ibid.
17 Victoria v Commonwealth (1926) 38 CLR 399.
18 See Menzies, R G, The Measure of the Years (1970) at 243Google Scholar; cf Jacobs, PA, A Lawyer Tells (1949) at 151Google Scholar.
19 (1926) 38 CLR 399 at 406.
20 Ibid.
21 (1928) 41 CLR 128.
22 R v Snow (1915) 20 CLR 315 at 323 per Griffith q.
23 (1928) 41 CLR 128 at 136.
24 Victoria v Commonwealth (1957) 99 CLR 575 (Second Uniform Tax Case); R v Federal Court of Bankruptcy; ex parte Lowenstein (1938) 59 CLR 556.
25 See Dixon, O, Jesting Pilate (1965) at 258Google Scholar.
26 South Australia v Commonwealth (1942) 65 CLR 373.
27 Melbourne Corporation v Commonwealth (1947) 74 CLR 31.
28 Victoria v Commonwealth (1957) 99 CLR 575.
29 Ibid at 609.
30 Ibid.
31 R v Federal Court of Bankruptcy; ex parte Lowenstein (1938) 59 CLR 556 at 581-583.
32 Cf the remarks of Attorney-General Daryl Williams, QC at the swearing in of Chief Justice Gleeson: Weekend Australian 23-24 May 1998 at 4.
33 For example, Koowarta v Bjelke-Petersen (1982) 153 CLR 168; Commonwealth v Tasmania (1983) 158 CLR 1; University of Wollongong v Metwally (1984) 158 CLR 447; Dennis Hotels Pty Ltd v Victoria (1960) 104 CLR 529;Western Australia v Commonwealth (1975) 134 CLR 201.
34 Even more striking, perhaps, is the figure for the Griffith court: 950 reported cases, or an average of 68 a year: see RB Joyce, above n 6 at 357. Both Griffith and Knox had significant periods of absence during the last years of their tenure.
35 He also participated in a number of dissents with Gavan Duffy eg, Burwood Cinema Ltd v Australian Theatrical and Amusement Employees Association (1925} 35 CLR 528; Australian Insurance Staffs' Federation v Accident Underwriters' Association (1923) 33 CLR 517. These cases reveal a resistance by the dissentients to the expansion of the arbitration power. See also Federal Commissioner of Taxation v Munro (1926) 38 CLR 153.
36 Z Cowen, above n 13 at 172-176.
37 Vic PD 1923-1924 Vol 164 at 523. Following allegations of bribery and misconduct in the carrying out of public works at Warmambool, the Victorian Attorney-General had asked Chief Justice Irvine to provide a justice of his court as a Royal Commissioner.
38 Rosenthal, N, Sir Charles Lawe (1968) at 92-94Google Scholar.
39 Holmes, J D, “Royal Commissions” (1955) 29 ALJ 253Google Scholar, a paper given at the 9th Legal Convention of the Law Council of Australia.
40 Ibid at 272.
41 Macbeth Act I, Scene IV, 8.
42 Age 5 April 1930 at 23.
43 Sydney Morning Herald 4 April 1930.
44 See his letter to Isaacs of 23 March 1930, reproduced in Z Cowen, above n 13 at 121-122.
45 Dixon, above n 25.
46 Cth Par! Deb 1930, Vol 123 at 1145. A perusal of a number of volumes of the Commonwealth Law Reports preceding Knox's retirement suggests that Knox did not in fact sit on any of the cases in which John Brown's interests were involved, despite the suggestion to the contrary in Robertson, J, JH Scullin (1974) at 224Google Scholar. The footnote references to the Sydney Morning Herald and the Maitland Mercury do not bear out Robertson's assertion. Knox seems to have been careful to avoid sitting in such cases as Caledonian Collieries Ltd v Australian Coal and Shale Employees' Federation (No 1) (1930) 42 CLR 527.