Owen Dixon: A Biography 0522850456, 9780522850451

Citation preview

GoeeA TXON

Choe-A IXON AYRES a BL THE

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PHILIP

MIEGUNYAH

PRESS

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MIEGUNYAH

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An imprint of Melbourne University Publishing (MUP Ltd)

PO Box 1167, Carlton, Victoria 3053, Australia [email protected]

www.mup.com.au

First published 2003

Reprinted 2003

Text © Philip Ayres 2003

Design and typography © Melbourne University Publishing (MUP Ltd) 2003

This book is copyright. Apart from any use permitted under the Copyright

Act 1968 and subsequent amendments, no part may be reproduced, stored in a retrieval system or transmitted by any means or process whatsoever

without the prior written permission of the publishers. Printed in Australia by Ligare

National Library of Australia Cataloguing-in-Publication entry Ayres, Philip. Owen Dixon.

Bibliography. Includes index. ISBN 0 522 85045 6.

1. Dixon, Owen, Sir, 1886-1972. 2. Judges—Australia—Biography.

I. Title.

347.9403534092

in se ipso totus, teres atque rotundus entire in himself, well-turned and polished, rounded off Horace, Satires, Ul, vii, 85, on the free man of liberal education,

quoted by Dixon in ‘University Education in a Scientific Civilization’

CONTENTS

FF WN CONDH

HE

Preface Abbreviations Foundations: 1886-1909 The Young Barrister: 1909-1920

xv xix

Chief Justice: 1952-1964 Retirement: 1964-1972 The Measure of Dixon’s Greatness

16 32 47 56 100 115 140 176 197 219 231 285 292

Appendix: Table of Cases Notes Bibliography Index

295 303 369 385

A KC in London: 1921-1924

The Mature Barrister and Acting Justice: 1924-1929 A Reluctant Justice on the High Court: 1929-1939 Family First: 1939 Wartime Work in Australia: 1939-1942

Minister to the United States: 1942-1944 The Postwar Latham Court: 1944-1950

United Nations Mediator, Kashmir: 1950

Chief Justice-in- Waiting: 1950-1952

ILLUSTRATIONS

Owen Dixon with his mother, 1886

following page 76

Family collection

Dixon aged two, 1888

Family collection

Dixon aged three, 1889 Family collection

Dixon with his parents, Edith Annie and Joseph William, c. 1896 Family collection

Setting out for Hawthorn College, c. 1896 Family collection

Dixon with Hawthorn College cadets, 1900 Family collection

Dixon with unidentified friends, early 1930s

Family collection

Levee for the Duke of Gloucester, Government House, Melbourne, 19 October 1934

Collection of Sir John Young With the Waterfall Farm Fly Fishing Club, late December 1939 or early January 1940

Author collection

Alice, Betty, Anne, Dixon and Ted pose at ‘Yallambee’,

26 April 1942.

Melbourne Argus, author collection

xii

ILLUSTRATIONS

Dixon addresses the Lend-Lease dinner, 11 May 1942, Melbourne. Melbourne Argus, author collection

With Prime Minister John Curtin, April 1942 Melbourne Argus, author collection

Dixon at the Australian Legation in Washington with Alan Watt and Keith Aickin, c. 1942 Family collection

Alice and the children in Washington, 23 June 1942

following page 140

Family collection

In the drawing room of the Legation, with Anne and Betty, c. 1942

Family collection

At the White House, 25 June 1942, for lunch and a meeting of the Pacific War Council Author collection

Dixon visits the Douglas plant at Long Beach, California,

10 July 1942.

Family collection

Dixon with John D. Hickerson, Australian Desk, State

Department, c. 1942 Family collection

New York, 26 January 1943, Australia Day Family collection

Dixon confers with Churchill, 4 September 1943. Family collection

Dean Acheson presides over the first plenary session of UNRRA, 10 November 1943.

Family collection

Dixon with John Beasley, Australian Minister of Supply, as they leave the White House, 1 June 1944 Family collection

10 July 1944: Dixon presents US Secretary of the Navy, James Forrestal, with a document accompanying a plaque made of Australian wood. Family collection

14 August 1944: Dixon reviews a parade of men of the 2nd AIF.

Family collection

Dixon addresses the parade. Family collection

ILLUSTRATIONS

xiii

Evatt greets Dixon and his family on their return from the United States, 27 October 1944. Melbourne Argus, author collection

Dixon with Alice and Anne, late October 1944 Melbourne Argus, author collection

following page 236

Dixon meets with Admiral Chester W. Nimitz, UN Plebiscite Administrator Delegate for Jammu and Kashmir, 1 May 1950. UN Archives

Dixon, with UN Secretary-General Trygve Lie, in London, 24 May 1950

UN Archives

Dixon meets the press at Karachi airport, 2 a.m., 27 May 1950. Family collection

Dixon poses with members of his team and others at Karachi

airport, 17 July 1950. Family collection

Dixon mediates between Liaquat Ali Khan and Pandit Nehru, New Delhi, 20 July 1950. UN Archives

New Delhi, 21 July 1950: at the memorial service for UN secretariat members and military observers killed in a plane crash UN Archives

Dinner at Government House, New Delhi, 22 July 1950 Family collection

At a conference on Government Under Law, Harvard University,

22-24 September 1955 Harvard University

Oxford, 25 June 1958: recipients of honorary doctorates from Worcester College

Family collection

Essendon Airport, Melbourne, 2 February 1960: Dixon and R. G. Casey welcome Dean Acheson.

Author collection

Prime Minister Sir Robert Menzies with Dixon, 16 October 1961

Family collection

Dixon swears in Sir Dallas Brooks as Administrator of the

Commonwealth, 5 June 1962.

Family collection

xiv

ILLUSTRATIONS

Dixon with his High Court on the day of his retirement, 13 April 1964 Family collection

The study at ‘Yallambee’ soon after Dixon’s death in 1972 Author collection

The alcove of the study at ‘Yallambee’ Author collection

PREFACE

THIRTY YEARS HAVE passed since the death of Sir Owen Dixon and many of those who knew him have died. Moreover the collective memory is short. If one were to claim today, in general company, that Dixon’s was the finest and most entire mind Australia had produced one would provoke sceptical looks, and from the young even the question ‘Who was Owen Dixon?—I know the name’. Yet in 1960 the claim would have been taken seriously and many would have concurred, thinking of his achievements in the field of law, his wide learning, his profound knowledge of men and affairs enhanced by his diplomacy and international mediation, his exemplary standards of professional and private conduct. Personal contact was what most impressed: He spoke incisively, so that you felt you were opening a book—a wellwritten, informative book—at random and having a subject traced to its

origins, followed through its history, observed in its development and analysed for its weight and content. One axiom emerged: all matter has as one of its elements a trace of humour. Sir Owen, being the first to discover this element, was the first to burst into spontaneous laughter at it. With such a ready wit and so complete a command of the facts that he was able to introduce them into the narrative in the way a conductor brings the instruments into a symphony, he held his audience enthralled.

Probably for me the most infectious of his enthusiasms was his love of books, and he spent a great deal of time telling me what I should read and why it was important to do so. MARGarET CONNOR, daughter of Sir Frank Kitto

xvi

PREFACE

Civic figures of the first rank acknowledged his greatness: Dixon had the most distinguished mind I have been privileged to know

among fellow Australians.

Sir PAUL HASLUCK

And even the average client sensed it: I shall never forget the days which I spent with you in the Court in Brisbane. That was the most wonderful intellectual experience of my life. EDMUND JOWETT, wool-grower

These are but three of a range of such reactions cited in this book.

Within his profession he was considered by those qualified to judge to be

the greatest living lawyer in the English-speaking world. The men who made that assessment sat on the United States Supreme Court and on the Judicial Committee of the Privy Council and they based it on their intimate knowledge

of his work. When I was invited by Dixon’s surviving daughter to undertake this biography I accepted on the understanding that I would receive intensive

advice, supervision and co-operation from senior lawyers, which I certainly

needed. The result is that at countless points and across considerable stretches

this book is a work of deep collaboration, heavily informed in its assessments by a number of Dixon’s surviving associates and senior constitutional

lawyers. Hundreds of his judgments in the areas of both constitutional and general law were read and analysed along with the secondary literature on

the important cases. In addition, every one of the hundreds of reported

cases in which he appeared as a barrister from 1910 to 1929 was closely

examined with attention to what was reported of his advocacy in the case.

But this is not a textbook, and the narrative is designed to integrate the personal and the professional as seamlessly as possible. In 1972 Dixon received a letter from the National Librarian in Can-

berra. The Library had been bequeathed the papers of Sir John Latham, including correspondence from Dixon. Might they presume Sir Owen would bequeath his own papers to the Library? ‘No’, he replied, and he was dis-

turbed to think that his private letters to Latham were now accessible to the public. However, although he had every moral right to destroy his correspondence and his diaries, and certainly did not wish them to be publicly

accessible, he preserved them. A generation on, they can legitimately be

considered a part of the historical record. The diaries cover 1911, the first two months of 1929, and the thirty-one years of 1935-65. There are also travel diaries and journals by Dixon and Lady Dixon covering trips to

PREFACE

xvii

Europe and the United States for the years 1922-23, 1923-24, 1939, 1953, 1955 and 1958. Dixon lived his life very much in the wider public sphere, not just in the courts. His diaries display a panorama of twentieth-century Australian history. They take us inside Roosevelt’s wartime Washington, to the war fronts of New Guinea, and into the remotest Himalayan reaches of Kashmir. Why he kept them is a mystery: they are more than a running aidemémoire, for they include quite trivial information as well as experiences within and outside the family circle one might well wish to forget. They seem to have been composed for himself and not for posterity, but whatever their motivation they enable Dixon to be known and understood from within. I am indebted especially to his surviving daughter, Mrs Betty Danby, for her friendly assistance and encouragement, and for putting into my custody for the duration of the project her father’s personal papers in their entirety, including all the diaries. | am equally indebted to a number of Dixon’s surviving associates (or personal assistants, each appointed for one

or more years soon after graduation), including the Hon. James Guest, John Read, Richard Searby QC, Ian Spry QC and Sir John Young. Not only did they share their memories of Dixon with me, they read through chapters with great care and substantially assisted with the redrafting at various stages of completion, finally overseeing the entire manuscript, which was also read and commented on by Sir Daryl Dawson, Sir Harry Gibbs and Colin Howard QC. I am also indebted to the late Lord Denning, the late Richard Fullagar, the

late Kenneth Jenkinson, the late Sir George

Lush,

and

to Peter and

Rosemary Balmford, Margaret Connor, Sir Zelman Cowen, Russell Danby, Robert J. Hawke, S. E. K. Hulme QC, Margot Jones, Whitney King, Sir Frank Little, Sally Nicholls, Meg Probyn, Gordon Sargood, David Sissons,

Leslie P. Stevenson, my son Julian Ayres, and the manuscript librarians at the National Library of Australia, the Baillieu Library at the University of Melbourne,

the La Trobe

Library

in Melbourne,

the Flinders University

Library, the United States Library of Congress, Yale University Library, the National Archives in Melbourne and Canberra, the Public Record Office at Laverton in Victoria, the University of Melbourne Archives, St Paul’s Cathedral Archives in Melbourne, the Victorian Bar Council Archives,

United Nations Archives in New York, and the National Archives at College Park in Maryland. I am grateful to Monash University for a small grant towards my travelling costs, the only public moneys expended on this book. Finally, I wish to express my sincere thanks to James Merralls QC, another of Dixon’s associates, whose knowledge of him is extensive and profound. In quotations from Dixon’s diaries his contractions have been preserved to avoid any possible misrepresentation. He contracts ‘matter’ to ‘mre’ and

Xvill

PREFACE

‘letter’ to ‘Ire’, but most of his other forms contracting words, he regularly dispenses diary entries and punctuates inconsistently, would be tedious to insert ‘[sic]’ in every should be taken as checked and accurate.

are clear enough. In addition to with possessive apostrophes in often writing fast and close. It such case, and each quotation

PHILIP AYRES

ABBREVIATIONS

AC AIF All ER ALT AMF ANU BAWRA Ch. Cl. & F CLR

Cox CC Cranch

CSIR CSIRO

Cwc ER ESU GCMG KB KC KCMG

Appeal Cases (English) Australian Imperial Forces All England Law Reports Australian Law Times (Victoria)

Australian Military Forces Australian National University British Australian Wool Realisation Association Ltd Chancery (English law reports)

Clark & Finnelly (English law reports) Commonwealth Law Reports

Cox’s Criminal Cases (English)

Cranch’s Supreme Court Reports (US)

Council for Scientific and Industrial Research

Commonwealth Scientific and Industrial Research Organization Central Wool Committee English Reports English Speaking Union Knight Grand Cross of the Order of St Michael and St George King’s Bench (English law reports) King’s Counsel Knight Commander of the Order of St Michael and St George

xx

ABBREVIATIONS

NLA PC QBD Qc

National Library of Australia Privy Council Queen’s Bench Division (English law reports) Queen’s Counsel

RPC

Reports of Patent Cases (English)

SCB UNRRA

Australian Coastal Shipping Control Board United Nations Relief and Rehabilitation Administration

VLR

Victorian Law Reports

Wm. Bl. WN (NSW)

Sir William Blackstone (English law reports) Weekly Notes (New South Wales law reports)

WLR

Weekly Law Reports (English)

CONVERSIONS On 14 February 1966 Australian currency changed from pounds, shillings and pence (£, s, d) to dollars and cents at the rate of £1 = $2. Twelve pence

made up one shilling and twenty shillings made up one pound. A guinea was a pound plus a shilling. 1 foot (ft)

0.30 metre

1 mile 1 pound (Ib)

1.61 kilometres 0.45 kilogram

1

FOUNDATIONS 1886-1909

IN THE YEAR of Dixon’s birth, 1886, Melbourne was enjoying its greatestever boom, which would end within five years in panic and bust. Prices were spiralling and the city was awash with money. Its mainly immigrant citizens enjoyed the Empire’s highest income courtesy of a stream of loans from British banks, thriving manufactures and businesses, and lucrative exports generated by 12 million sheep on vast park-like runs to the west and by endless acres of cereal crops. Melbourne’s cathedrals, theatres, public library, parliament, law courts, exhibition and treasury buildings were displayed to proud effect, though there was a bad odour yet to be sewered away. Land was being subdivided for suburban development as far out as Laverton (an

optimism that was misplaced; few of the lots would be built on until the

1950s).

From the city centre you could travel the three miles east to Hawthorn and the Dixon house by train or by horse-drawn omnibus, carriage or hansom cab. Taking a hansom cab by a route Owen Dixon would later often walk, you would be driven along Wellington Parade, past the Fitzroy Gardens with their network of avenues shaded by maturing elms, poplars, plane trees and oaks, and Yarra Park with its cricket grounds, then down the Richmond

hill and east along Bridge Road, crossing the Yarra by the new Richmond Bridge into Hawthorn Town, population just under 12000. The orchards and vineyards that had flourished in this district in the 1850s, and whose

cultivators had succeeded the Aboriginal people, had long since been sold to speculators and developers.

2

OweEN

DIxon

As yet no telegraph poles, no electricity poles, no tramways strung wires along roads and streets, which, like the houses, were lit by gas. No internal combustion engines disturbed the tranquility of the day or the peace of the night. The most striking difference between then and now was the quiet. In 1886, in almost any Melbourne house that was not built beside a railway line or factory, the only sounds, aside from the human voice, were the clock, sometimes a piano, and the odd horse going by outside. Owen Dixon’s love of horses and his lifelong memories of this era partly explain his refusal ever to learn to drive a motor car, a contraption he referred to as a ‘lethal weapon’.! Anywhere past the intersection with Power Street you would pay the fare and alight from the hansom cab, dodging carriages and avoiding dung as you crossed the busy road. Striking south down one of the streets off Burwood Road you would come upon Weinberg Road (Wattle Road after 1914, when German names, by the general will, were replaced with English ones). This road undulates east to Glenferrie Road. At 63 Weinberg Road, in a house named ‘Morley’ (still there but now number 61), the young barrister Joseph William Dixon and his wife Edith Annie, Owen’s parents, lived together with Owen’s grandparents, Joseph Dixon senior and his wife Elizabeth. Owen’s parents had married on 3 June 1885, and Owen was born eleven months later, on a still autumn day, 28 April 1886.2 None of the houses

he would ever call home would be more than a mile and a half from here.

He was destined to be his parents’ only child, and his mother, father

and paternal grandparents constituted his immediate family. There were

others in the family, people who visited or were visited—an aunt, uncles and

cousins on the Dixon side, and friends in trade and the law. There were

those who were spoken of but seldom seen—mother’s relatives in Sydney. There were the dead—the Dixon line, and mother’s parents about whom nothing was ever said, though their images were among the household icons that adorned the mantelpieces.

When Owen Dixon was born his father was twenty-six and an opti-

mist. There was plenty of work at the Melbourne bar for a good barrister— in boom times people can afford to be litigious, and the pickings are better. Born 16 July 1859 in the town of Morley, Yorkshire, four miles southsouth-west of Leeds, Joseph William had emigrated with his mother Elizabeth Dixon, née Dodgshun

(born c. 1831), his sister May

and

brothers

Charles (who died young), John Edward and Frederick. They sailed on the clipper Champion of the Seas, arriving in Melbourne in November 1865. Joseph Dixon (christened 7 November 1830) had arrived in August on the White Star with his eldest daughter Mary Ann.? The Dixons had lived in

1

FOUNDATIONS:

1886-1909

3

and around Morley for generations, and most of them, like Joseph Dixon,

were connected with the dominant wool trade as cloth manufacturers. The

family’s lineage can be traced back through their association with their church, the New Chapel Independent in Morley. The line runs back through Joseph Dixon’s father William Dixon (christened 30 August 1805) to his father, William Dixon senior (born 1 December 1772), whose older brother Joseph Dixon (born 17 September 1770), through his daughter Esther and her son Joseph Dixon Asquith, was the great-grandfather of British Liberal Prime Minister Herbert Henry Asquith (1852-1928), who was thus the Morley-born third cousin of Owen Dixon’s father.‘ But family trees would never be of interest to Owen Dixon, who knew from an early age that one is responsible for oneself and makes oneself, though somewhere in the obscurity of things there was such a thing as fate. He was not like his parents or grandparents and lineage was largely irrelevant to his character, except for the warnings it provided. After arriving in Melbourne in 1865 Joseph Dixon worked for his brother-in-law James Dodgshun, who had been active in Melbourne since the

1850s as an importer, warehouseman

and wool-broker following his

own arrival from Morley.’ Later Joseph Dixon struck out independently as Dixon & Co., importers of dyes, and as a lay preacher with his own chapel,

the Zion Independent Church of Lower Hawthorn, praising the Lord and

doing his work among the labourers in the Hawthorn brickfields. A local grocer, J. Chandler, described the preaching of Owen Dixon’s grandfather: Went to the little chapel in Henry Street, Hawthorn then went to Mr Dixon’s . . . It was called Zion Independent Church and was down by the old brickfields. He preached the Truth, but he was lacking in warmth of spirit, he was cold, formal and stiff.6

Still, many heard the call. In 1873 he had bought the single-storeyed, slateroofed villa in dark brick with cream quoins he called ‘Morley’. Mrs E. Baker of East Bairnsdale also remembered the Dixons of ‘Morley’. A poor

woman by her own account, living with eight children in a ‘humble cottage’, she wrote to Owen Dixon on 4 February 1929 congratulating him on his appointment to the High Court. She had always admired you as a small boy ... I knew & loved your grandparents & often as a child visited ‘Morley’ which was a great pleasure to be taken there by my Mother, who was taught by Mrs Joseph Dixon at Sunday School, in the early 80s. My parents were married by Mr Dixon

& the family all christened by him.”

4

OweEN

DIXON

Although a year or so after his birth Owen Dixon and his parents moved to a rented house in Manningtree Road (between Weinberg and Burwood Roads), then in the early 1890s to a house of their own at 55 Manningtree Road,® Owen was constantly in and out of ‘Morley’. It was not, however,

a milieu that as he grew up he continued to find congenial. His education, and tendency of character, soon turned him into a rational classicist whose spiritual home was ancient Greece, not ‘Zion’, and he appears to have passed on to his children little information about the religious enthusiasm

characterising ‘Morley’ or the truth to be found there.

His father Joseph William (J.W. from here on, for convenience) seems to have preferred to forget it too, and never encouraged patterns of piety in his son, though Owen would accompany his mother to the local Christ Church (Church of England), and on special days to the cathedral, a custom

that became irregular as he grew up. J.W., along with his younger brothers John Edward and Frederick, had been sent to Hawthorn Grammar School under its owners John T. Meeson and (from 1875, J.W.’s final year) Martin Howy Irving. Irving, who would become Vice-Chancellor of the University of Melbourne, was a brilliant classicist, progressive in educational matters.” He encouraged rifle shooting at Hawthorn Grammar and J.W., who picked up the enthusiasm, passed it on to Owen. Both J.W. and John Edward went on to study law at the university under the Dean, Dr William Edward Hearn. J.W. graduated LL B in December 1880, and was admitted to the Victorian bar the following year, while his brother practised as a solicitor. But fate in

the form of an 1890s train smash forced them into partnership. J.W., his

hearing already going, lost most of what remained in the smash. A deaf barrister finds it hard to get work, so around 1895 J.W. joined his brother as J. W. and J. E. Dixon, Solicitors.'° He was better off there—with the bursting of the boom in the early 1890s work at the Melbourne bar initially surged, then almost totally dried up.’ His deafness would later induce bouts of depression and heavy drinking, but for the time being he maintained control and at least tried, after his own fashion, to be a good husband and father. Owen’s mother, Edith Annie, was described by his cousin Colin Dixon

as having ‘great dignity, wisdom and common sense’.'? Because these qualities (which influenced Owen) were accompanied by equanimity they could be sustained when testing times came. Like her husband she had been born in Morley, and just a few months earlier, on 1 February 1859. She was the first child of Edward Owen (died 1869), stationmaster there for the London and North-West Railway Co., and Elizabeth (Betsy) Rodley (died 1876), daughter of Thomas Rodley, shoemaker, of Stump Cross, Morley. Her parents were Methodists. Edward Owen had only recently been moved to Morley

1

FOUNDATIONS:

1886-1909

5

from St Asaph in Wales by his employers. Another illustrious relative of Owen’s emerges on his mother’s side. Edward Owen’s mother, Mary Owen, née Parry, had a sister whose illegitimate child, John Rowlands, caught a ship to New Orleans while only a lad and was there ‘adopted’, becoming Henry Morton Stanley, explorer of Africa. He was Owen Dixon’s cousin twice removed.'> In 1861 Edward Owen emigrated to Sydney, followed in 1862 by Betsy and their two small children, Edith Annie and Edward. He joined the New South Wales railways, was soon promoted to stationmaster at Central Station and from 1 July 1863 to state traffic manager on a handsome salary of £500. But things were far from well. On 4 June 1864 he secured Betsy’s admission

to the Tarban

Creek (Gladesville) Mental

Hospital, where

on

5 June the case book recorded that She has been insane five years but has gradually been growing worse until her husband has been reluctantly compelled to remove her from home. The immediate exciting cause of her illness appears to have been childbirth, and the original delusion was jealousy of her husband since which her ideas have shifted about from one imaginary notion to another but most of them tinged with suspicion and fear. She has a brother who went insane from grief and his insanity was similar in its manifestation to her own ... Her moral conduct before her derangement was strictly correct and unimpeachable but since her mind was affected a growing passion for ardent liquor has shewn itself.'*

On 31 December that year she gave birth to a son in the asylum. Discharged on

16 January

1865, she was soon readmitted, the readmissions register

noting a knife concealed on her person, and that ‘Probably she intended suicide’. She remained there and later in the Bay View House asylum at Cook’s River until she died in 1876. Her husband predeceased her on 18 April

1869 at the age of thirty-seven—‘delirium tremens with epilepsy’, a classic

cocktail with a massive dose of spirits as its base. A family friend, also from

Morley, the well-to-do wool merchant Andrew Hinchcliff, took Edith and

at least one of her brothers under his care after her mother’s committal to

Tarban Creek. She lived with him and his family at ‘Albermarle House’ in Newtown. J.W. probably met her through the Dodgshun connection—in any case during a visit to Sydney—and they married at St Stephen’s Church of England, Newtown, on 3 June 1885. Andrew Hinchcliff had meanwhile died in 1882, and his son John Hinchcliff followed him in 1895 after making

a fortune of his own and establishing himself in his mansion ‘Mount Royal’

6

OwEN

DIXON

in Strathfield, which Owen Dixon visited as a child.'* Andrew Hinchcliff had

bequeathed £2000 to Edith to be invested on trust and she brought it into the marriage. It would be drawn on regularly when hard times came. At the beginning of 1894 Owen’s parents enrolled him at Hawthorn College, half a mile to the east. Owned from 1890 by George Coutie and run along non-denominational lines, the college was located initially in Oxley Road but during most of Dixon’s attendance it was in Minona Street, occupying under lease the large polychrome-brick ‘Augustine Hall’ (built 1889), as well as all its rooms to the front, rear and sides, behind the Con-

gregational Church that fronts Burwood Road. Hawthorn College closed at the end of 1910 but the complex still stands, and one can walk about the hall, into the old classrooms, and around the back where the cadets paraded —aside from the furnishings, nothing has changed. Children were accepted from the age of seven and taken through to the matriculation examination, enrolment being around 160 during Dixon’s years there. Coutie appointed excellent masters who tended to stay, and achieved outstanding results. After the Junior Course there was the option of a commercial stream or a professional, academic stream, and 138 pupils passed the matriculation examination between 1893 and 1901 compared with 116 at Wesley College, 85 at Melbourne Grammar, 75 at St Francis Xavier’s, and 58 at Geelong Grammar.

Only Scotch College scored more, with 175, but its enrolment was higher.'* Of the thirteen rooms, seven were in constant use for the seven ordi-

nary classes (three on the south side of the hall, four on the north), and each class had its own all-day master. The other rooms could be allotted as occasion demanded to music, typewriting, shorthand and so on. Dixon’s schoolday, as he later described it to his children, began with his saddling up and riding east down Manningtree Road, left into Glenferrie Road, then right

along Burwood Road with its morning clutter of carts and carriages, to the

college entrance off Burwood Road. After unsaddling he would leave the pony in the school’s stables and walk into the great hall where everyone would be assembling for Coutie’s daily Bible lesson. ‘Old Coutie’, as he was affectionately known, had come from Liverpool where he had been principal of the Northern Institute, and he devoted much time to the junior classes. Everything was shipshape, down to the drinking water (a risk in unsewered times), which was sterilised. When Dixon entered the college in 1894, John Newman

Morris, later

prominent in Victorian medical politics and organisation, and for many years Dixon’s physician, was there, seven years older. John Leslie Hardie, later Major-General, was there and four years older. Frank Ponsford, later Senior Commonwealth

Medical Officer in South Australia, was there and

1

FOUNDATIONS:

1886-1909

7

two years older. After Dixon came in, Henry Gordon Bennett was enrolled. Later a Lieutenant-General, Bennett would leave Singapore in controversial

circumstances in 1942. Others younger than Dixon included John Arnold

Seitz, later Director of Education, and Vernon Ransford, soon to achieve recognition as a cricketer and later secretary of the Melbourne Cricket Club. The

young Dixon was self-assured and self-contained, disdainful of

group idiocies. He enjoyed reading but showed little interest in sport. (In any case the college had no playing fields of its own, the only on-site ‘sport’

being the weekly gymnastics lesson.) He did well at Hawthorn College. In

1895, his second year, he gained an honourable mention, in 1896 he won first prize in his form, and in 1898 and 1899 he won two more academic prizes.!” In 1895 Dixon’s grandmother died (he loved her so much he made a note in his diary of the sixtieth anniversary of her death"*), and in 1897 the

family moved again, to 59 Lisson Grove, two streets south of Manningtree Road.'?

J.W.’s

constant

moves

from

one

Hawthorn

street

to

another

reflected the changing state of his finances. Over the next twenty-two years the family would move again, and again, and again. Then in 1899 Old Coutie died and his Second Master, Quintin Hugh Rose

Smith,

became head, buying the school from Mrs

Coutie in 1902.

Smith had taught at the college since 1893 but was still in his twenties in 1899. After entering King’s College at the University of Aberdeen in 1887 as Greenskares Bursar he had won prizes in English, Latin, Greek, philosophy

and other subjects, taking his MA with honours in mental philosophy in 1891. Soon after, for some private reason, he came out to Melbourne.”? Smith cut a sombre figure in his academic gown, with his round face, reced-

ing hair and trim moustache. It was he who first taught Dixon to love the classics. At the beginning of 1900, when Dixon was thirteen, Quintin Smith,

recognising his intellectual gifts, advanced him from lower-fifth directly to the matriculation class, so that he skipped upper-fifth, the sub-matriculation year. In Victoria it was usual to pass the matriculation examination at sixteen or seventeen—the university only took students from the age of sixteen—

but Hawthorn College boasted in its prospectuses of how more than half its

pupils who had matriculated were just fourteen, ‘and not a few only thir-

teen’.2! At the end of 1900 Dixon won the second prize for English and continued his matriculation studies through 1901, passing the examinations in December at the age of fifteen, when he also won the college’s second prize for languages (in Greek and Latin). In August 1950 he would write from

Karachi to his daughter Anne,

8

OwEN

DIXON

I did not leave school until the end of 1903 when I was about as old as you ... I found school very dull matriculation in 1901 & except versity. But I learned an awful lot subjects. We were not taught very

which of course we wasted.??

in 1902 and for age could and got very long hours &

1903 because I passed have gone to the Uniinterested in the actual had many periods off,

In these two years he was in Quintin Smith’s own post-matriculation form, which, following the model of Dr Arnold’s sixth form at Rugby, was a ‘democracy of gentlemen’. His intensified reading in the classics is confirmed by his winning Mr Rose’s prize for languages at the end of 1903.74 James A. Rose, who funded the prize, was a graduate of the University of Melbourne and Smith’s Second Master. He taught French and German and was noted as ‘a great punster and excellent teacher’.?’ If Dixon ever had him

as a teacher it was for French.

In that final year Dixon was the school’s top cadet. His father had encouraged him to join the cadets when they were established at Hawthorn College in March 1900.6 The Defence Department imposed a maximum membership of fifty and at this college the corps never fell below that. They drilled in the playground behind the school every Friday afternoon between 3 and 4 p.m.,?’ under the strict command of the generously moustachioed Lieutenant (later Captain) T. E. Shaw, whose identification with the school

was strong—he had been a master at Liverpool Northern Institute under Coutie in the 1880s and was regarded by students as an absolute martinet.”* Dixon, uniformed and holding his Francotte rifle, appears in a group photograph with Shaw and other cadets, probably taken in 1900 when Dixon was fourteen—he looks very young, but it cannot be earlier than March of that

year. His face, particularly his eyes and the set of the jaw, shows calm deter-

mination and self-control—this boy knew how to keep his emotions in check. Dixon’s membership of the cadets strengthened his bond with his

father, who gave the handsome trophies to be shot for each year, as well as the annual prize for Dux of School. In the Boroondara Rifle Club father and son regularly shot alongside each other, prone on the ground, making clickstop adjustments for elevation on their vernier peep sights. Owen gradually

overtook his father (who could barely hear the shots he was squeezing off),

and beat him, for example, in the match of early December 1903 by two points.”? In the cadet matches he was doing well too. On the first occasion when Hawthorn College was represented at the state cadet matches, in December 1902, he shot second-best in the competition with scores of 29/30 at 400 yards and 28/30 at 500 yards.*° Then in 1903 the college’s cadets won all the senior prizes at the Metropolitan Rifle Clubs Association meeting

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at Easter. At the subsequent parade in May, with all flags flying, they were personally commended by Major-General Sir Edward Hutton, General

Officer Commanding Commonwealth Military Forces, veteran of the Zulu Wars. That year Owen Dixon, now a

lieutenant, was best of the best, receiv-

ing at the speech day in December the school’s first probably meant as much to him as Rose’s prize for form, watching him walk up to collect them both, days, was his father, sitting beside the distinguished

prize for cadets.3! This languages. On the platand so end his schoolQuintin Smith.*?

In 1904 the University of Melbourne was still spacious, with just 750

students, its neo-Gothic buildings disposed in a tranquil park complete with lake. Its young gentlemen wore boaters and blazers, its ladies long cool linen dresses, and temptations to idleness were great. Dixon entered as a law student enrolled also for arts—what is now termed arts/law. Sir John Norris, not a contemporary of Dixon’s, reported Dixon as saying that he ‘had been ambling through an Arts course when suddenly the need arose to

earn a living’.»> By this Dixon perhaps meant that a sense of urgency devel-

oped some time into his studies, a need to supplement the family’s income. It was usual to pursue arts subjects in the first year at the university, begin-

ning law subjects in the second year.** Like other law students his honours

arts course was completed by the end of his third year, paralleling law in the second and third years, law alone being studied through the fourth and fifth years. Dixon intended from the start, and was intended by his father, to be a

lawyer. His later statement, that ‘I had turned away from studies for which I hope I had undergone a better preparation in order to enter [Professor Thomas George Tucker’s] domain’, the domain of classics, can be taken to mean that Dixon had been prepared by his father and his schooling to think of the law as his future profession.>> His love of classics, however, may well have inclined him to forget the law and go off to Oxford to study ‘the Greats’ had not ‘the spur of necessity’, as he terms it, dictated otherwise.°**

He was an early member of the Classical Association of Victoria (founded in 1913), addressing them many years later on the more curious intersections of Latin and the law.>” As Sir Robert Menzies, who first met Dixon in 1918, pointed out, His university degrees were moderate enough for a man of Dixon’s uncommon

talents. But as I got to know him, I got to realize that as a

student he must have been much more interested in far-ranging studies— learning for learning’s sake—than in the mere passing of examinations based upon set courses and prescribed books.**

After he retired in 1964 he seems never to have read another law report

—he went back to the classics, the texts of which had often accompanied

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DIXON

him on trips anyway.*? He later referred to his professor of classical philology, Thomas George Tucker, as ‘an idol of my youth’.*° Tucker, in his midforties when he taught Dixon, was respected internationally for his editions of Aeschylus’s Supplices (1889), Choephori (1901), and Seven Against Thebes (1908), and his works on Book VIII of Thucydides’ Peloponnesian War (1892), Aristotle’s Poetics (1899), Plato’s Republic (1900), and Aris-

tophanes’ The Frogs (1906). His edition of Aeschylus’s Choephori (1901) is still the basis of the Penguin translation. He also edited an edition of Shakespeare’s Sonnets. Tucker’s Saturday leaders in the Argus, the best Melbourne paper, gave him a wide audience, and he published collections of popular essays including Things Worth Thinking About (1890). After a brilliant course of studies at St John’s College, Cambridge, he had emigrated for health reasons. He was a charming man, with presence and authority, who dressed stylishly—‘gloves and a light cane, a broad brimmed fedora hat, patent leather shoes, large pearl tiepin and an unusually high white collar’.*! In Dixon’s first year under Tucker he took Greek Part I and Latin Part I; in addition he took pure mathematics I and deductive logic. For the Greek and Latin he received third-class honours that year, and passed the others. In Greek he read Sophocles’ Antigone, Plato’s Apology and Crito, Aeschylus’s Agamemnon, and sections of Lucian. He also rendered English passages into Greek iambic verse.‘* Throughout his life Dixon would repeatedly go back to the Agamemnon. What drew him to it? One of his favourite novelists was Trollope whose humorous analyses of folly appealed

to the sense of the absurd, and Dixon had a wry, occasionally unkind sense

of humour (though he would never be directly hurtful to an individual). This humour, however, often disguised profound seriousness, and it is not strange

that he should have been drawn to the Agamemnon, an extraordinarily serious work on matters close to his heart. This tragedy is the first part of the Oresteian trilogy, seed-bed of Greek tragedy, and because Tucker had just published his edition of the second part (the Choephori) he lectured on Aeschylus with authority and engagement. The trilogy addresses the nature of justice and the related issue of fate as the dark qualifier of free will and human responsibility. The Agamemnon dramatises these issues starkly, with an austere acceptance of the delusions of happiness, and Cassandra speaks for Aeschylus when she says, Alas for human destiny! Man’s happiest hours Are pictures drawn in shadow. Then ill fortune comes,

And with two strokes the wet sponge wipes the drawing out. And grief itself’s hardly more pitiable than joy.”?

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There was no book closer to Dixon’s soul than the Agamemnon. It reflects

his fatalism. For

Latin

he was reading Book

V of Virgil’s Aeneid,

Cicero’s Pro

Cornelio Sulla (literature of advocacy of interest to the law students), the younger Pliny’s letters (31-52), some Terence, some Martial, and translat-

ing English passages into Latin heroic and elegiac verse. The following year (1905) he read Pindar’s Olympian Odes (2-10), Aristophanes’ The Frogs (which Tucker had just edited), Demosthenes’ Private Speeches, and Book

VII of Thucydides on which Tucker was an authority of international

standing. He also did translations into Greek verse and prose. The Latin included Plautus, Catullus, Juvenal, Cicero’s Pro Publio Sestio (more advo-

cacy), and composition in prose and verse. At the end of the year he was again awarded third-class honours in Greek and Latin and passed as well in comparative philology, but the next year (1906) he did well enough to earn a second-class honours degree at the final examinations. Reading for third year was set by Tucker week by week and not listed in the Calendar, but may have included Horace and Tacitus, lifelong favourites of Dixon’s.

Of the seven graduates from the honours school of classical philology

in February 1907 one received a first, two including Dixon a second, and four a third. This put him near the top of his class and establishes his interest in classics as serious at that time (he certainly read beyond the curriculum, including the New Testament in Greek, which put him off religion ‘because the Greek was so awful). Tucker asked him what he was going to do. In Dixon’s words, ‘I answered “Law.” “Law,” he said, “You will find that very

medieval.”*5 Tucker as a classicist despised the hoary Gothicism of the

Middle Ages out of which the English common law had grown, but there was no question of Dixon’s continuing with classics (at Oxford, say). The

family could not afford it; in fact they needed their son’s financial support.

So what Dixon called ‘the spur of necessity’ drove him to pursue the course his father had always intended him to follow. In

1905

he had also studied constitutional history and law, gaining

second-class honours, and now went on to major in the subject. After a

break from the law in 1906 while the BA Hons was completed, 1907 and 1908 were pure law. Constitutional law was taught by the Dean, William Harrison Moore, a graduate of King’s College, Cambridge, and the Uni-

versity of London, author of the key work on the development and structure of the Australian Constitution.” In his late thirties, finely dressed and finely featured, he was precise and sardonic: to a class packing up to go,

‘Gentlemen, please, I still have a few more pearls to cast before you’; to students who had removed their coats, ‘Gentlemen, I must trouble you to

12

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DIXON

resume your clothing’; to an audible whisperer up the back, ‘You, yes you with the scruffy hair and the dirty collar!” Loretta Re has described how ‘During the course of conversation, he would obsessively twist between his fingers a pellet of greasy wool, pulling it to pieces and rolling it into a ball again, as if, when he was dividing the strands of wool, he were separating the strands of an argument’.* Harrison Moore’s School of Law was short on accommodation and funding—some lectures had to be held in the Supreme Court. But the main problem was lack of books, Moore having to put some of his own books into the library for the use of students.*? Although he encouraged an interest in history and politics as background to constitutional law, he taught a pure and avowedly non-political ‘jurisprudence of concepts’, objective and ‘scientific’ in its treatment of principles, typical of the best English common-law tradition, and it was reflected in his graduates, particularly Dixon, as Sir

Robert Menzies and others have always recognised. In Harrison Moore

Dixon found ‘A gentle manner, learning infused with the true spirit of liberalism, a complete grasp of legal principle to the exclusion of all that was mere dogma and a lively interest in constitutional and legal development’.*! On federalism Moore was without equal in Australia, and in 1964 Dixon would decry the cloud of unknowing that had settled over this subject: There are comparatively few survivors who know anything about it. I think that we were all very lucky to have Harrison Moore who had taken a lot of trouble to master the theories and to teach them. I surmise he did so because he recognised that, coming as he did from Cambridge, he was in a country to which these theories were vital and yet he had been taught nothing about them.

Dixon developed a strong interest in theories of federalism and would deliver important addresses on comparative federalism in Australia and the

United States in the years ahead. Aside from the early High Court judges

who had been involved in the framing of the Constitution, Dixon probably knew more about federalism than any other judge on that bench. Yet while he admired Moore and was his disciple in the senses of taking the federal compact seriously and advocating a conceptual style of jurisprudence, he seems never to have established very close relations with him.*? He did, however, speak at a dinner in Moore’s honour given in April 1929 by the Law Students’ Society at the Oriental Hotel to mark his retirement. His 1907 results in Moore’s subjects, constitutional history and law,

and jurisprudence including Roman law, were second-class honours level, like his results in property and contract, lectured on by Frank Gavan Duffy KC who would join the High Court in 1913 and serve as its Chief Justice

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from 1931 to 1935. In Dixon’s final year, 1908, visiting lecturers included Sir John Madden (Chief Justice of Victoria and University Chancellor), Henry Bournes Higgins (Justice of the High Court), and Joseph Hood, Leo Cussen and Sir Thomas a Beckett (Justices of the Supreme Court of Victoria), as well as others prominent in the law.°> There was nothing closed

and ‘academical’ about Harrison Moore’s school, and students were fortunate who studied there. In 1971 Bruce Coles, Dixon’s associate in 195960, wrote to him: I was at a meeting at the Institute of Advanced Legal Studies (part of London

University) earlier this week at which

Lord Devlin spoke. He

made an interesting remark to the assembled academics which was that

the reason why the High Court of Australia when presided over by you was the finest Court he had ever known was partly due to the fact that the Australian lawyers had been taught their law by practising lawyers who lectured before Court in the morning and again in the evenings.*¢

In that final year Dixon passed private international law, administrative law, equity, law of wrongs, law of procedure and evidence, and the third year of constitutional history and law, but for some reason (perhaps because

he was helping out at his father’s law firm) he never sat his final honours examinations, taking an ordinary LL B on 23 December 1908. In 1909,

while doing articles, he was awarded the MA, automatic for anyone with a

BA Hons on passage of time and payment of a small fee (as at Oxford and Cambridge). From his studies in classics Dixon learned to value precision in thought, clarity of expression, and logical sequence in the parts of a composition, and these qualities mark everything he ever wrote. In his 1961 obituary for his friend and brother High Court judge, Sir Wilfred Fullagar, he could have been speaking for himself when he praised Fullagar’s classical scholarship which did not desert him as the years advanced. His style of writing, formed doubtless by his classical training, gave an added distinction to his writings. No one sensitive to language can fail to per-

ceive that his judgments not only were masterly embodiments of judicial reasoning but contained a singularly apt and felicitous use of English in the expression of a legal subject.*”

Though Dixon had not done brilliantly in either discipline he graduated near the top of his class in honours classics and impressed at least one fellow student as someone to watch. Frank A. Russell, a journalist on Melbourne

Punch, later recalled the Dixon he knew in 1907-8:

14

Owen

DIxon

It was easy to see then where he was headed. Even in those early days he possessed a soundness of judgment that was surprising. He did not give his friends an idea of unflagging work. My own recollection of him is one of laughing indolence, which did not preclude an almost uncanny

exactness of knowledge. I believe that what he once read he never forgot.**

Apart from this we have few glimpses of Dixon during his university years. The newsletter of the Law Students’ Society, The Summons, became defunct

in May 1903, the year before he enrolled, and there was no replacement until Res Judicatae, a proper journal, appeared in the 1930s. Beginning in 1907 there is the Melbourne University Magazine from which it is clear that he played no reported part in sports, not even shooting. Through 1907 the magazine reports the Law Students’ Society meetings at the Vienna Cafe in Collins Street, held every third Monday in term time. Dixon was not an office-bearer that year but took part in a lively meeting on 25 June: ‘Debate re Contract. Opener Dixon; respondent, Blackburn. Many important facts in connection with the making and ratification of contracts by infants were brought out’. (Maurice Blackburn, Dixon and Charles Gavan Duffy would be working together within a few years for Mr Justice Cussen on the 1915 statutory consolidations, and Blackburn would later be prominent in Victorian Labor politics.) The society staged mock trials too. During his articles year (1909) Dixon became secretary of the society, continuing his active membership for a while after graduating. These university years were full of worry. As his father declined in spirit and health, Owen frequently had to help out at the firm’s offices at 349 Collins Street, gaining experience as a solicitor before he had even graduated, but all law firms were short of work as the economy continued to be depressed. The want of money became a family obsession and he kept a note of every penny’s expenditure. Law was even more expensive than

medicine in the final two years when the fees were £25 4s a year; arts fees had been 12 guineas. At least he was living at home, not in one of the three colleges, where fees ran to an additional 84 guineas a year, though by doing so he missed out on the benefits of more tuition and a social life. It was not just the money—someone had to help his mother cope with his father in the evenings. Dixon was forced to deal with ever-present problems and at the same time devote himself to study. To do this and not become distraught he learned to compartmentalise things and put up with what could not be changed. Sometimes the family would get away to the beach at Port Albert where the sands were clean and the tides ran strong. William Howat wrote to Dixon on his appointment to the High Court in January 1929:

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When I first saw you at Port Albert with the marks of the sand flies spread on your body I think you must not have been out of your teens. I was much impressed with your splendid disregard of the annoyance from their bites in your determination not to let these interfere with your bathing. Your father admired your spirit of enthusiasm at the time to enjoy the sea as did I.*!

It was an emblem of character and self-control, but Dixon still lacked what the forensic milieu would inspire: a drive and purpose without which the voyage of his life might have been bound in shallows.

2

THE YOUNG BARRISTER 1909-1920

WITH HIS FATHER as witness Dixon signed articles of clerkship on 19 January 1909. He was to work for Alexander Cameron of Crisp and Cameron,

425 Little Collins Street, but by this time Cameron’s enthusiasm was in tramways, not law, and Dixon’s time with him was uneventful.' After a year of

this apprenticeship he was admitted to practise as a barrister and solicitor

on 1 March 1910 and signed the Roll of Counsel as No. 0117 on 13 June 1910.2

It is the custom in Victoria for a newly called barrister to ‘read’ for six

months or a year in the chambers of an established junior barrister, a junior being any barrister who has not ‘taken silk’? by becoming a King’s (or

Queen’s) Counsel.? The typical experience of such a pupil has been well described by Sir Robert Menzies, Dixon’s pupil in 1918: He reads the briefs that come in; he is encouraged to discuss them with his chief. He is, of course, free to accept briefs of his own and, if he is

lucky, as I was, gets a few. But his great advantage is that he sees a busy junior at work, and at close quarters. The law comes alive for him.*

The fee for the induction into the mysteries of the profession, however, was

a hundred guineas a year (or 50 guineas for six months), and as Dixon’s parents could not afford this he made his way untutored. It was a hard start

made harder by the fact that there was so little work to go around. He once glanced at a Supreme Court cause list for a particular month in 1910 with

just one case set down for trial.’ Yet for his own and his parents’ sake he

could not afford to fail.

1k

2

YOUNG

BARRISTER:

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17

Most Melbourne barristers in 1910 worked from 462 Chancery Lane —Selborne Chambers. Built in 1881, the chambers ran between Chancery Lane (now part of western Little Collins Street) and Bourke Street, with an

entrance at either end.* There was a wide central passageway from one end to the other, with barristers’ chambers behind the Gothic arches that ran the length of each side on the ground floor. The passageway was two storeys in height and, high above, a saw-tooth roof provided light. The upstairs rooms opened onto a gallery running along either side of the passageway, and there were cross-over bridges between the two sides. Because the Chancery Lane end was lower on the hill than the Bourke Street end, the building was ‘stepped up’ halfway along its length. The striking openness of the interior enhanced the sense of collegiality. Barristers would call from the first-floor galleries to friends below, and there was commingling and discussion along the passageway. Chambers were uncarpeted and heated only by fireplaces. This spartan quality was traditional and Dixon liked it: I remember my grandfather telling me that the late Mr George Higinbotham, afterwards Chief Justice of this State, took him into counsel’s chambers at a date which I would estimate to be about the late 1870s,

and as he opened the door to see the counsel, he looked at the floor, and he said to the counsel, ‘Goodness me! What are you doing with a carpet on your floor? You are a barrister, not a company promoter!””

In 1910 none of the barristers’ rooms had a telephone. The clerks had telephones and would pass on messages. Dixon obtained room 15 after waiting some time while structural

changes were made around and above it.? This room was near the Bourke

Street entrance at the higher, less popular end of the building, on the eastern side of the passageway. Although there was relatively little work, Dixon found briefs easier to come by than had some young barristers—John Greig Latham, the future Commonwealth Attorney-General, had earned just one guinea in his first six months during 1905.° The evidence for Dixon’s income during his first twelve months is a list of ‘Fees 1910” at the back of his 1911 diary.!° He made a total of 113 guineas, including 27 guineas from coaching students and 5 guineas of ‘family’ money from the Dodgshun side by way of an unnamed solicitor (Hamilton v Dodgshun, Dixon for the defendant). Some

months were very lean, however; no fees at all were listed for September.'! The cases were in the County Court or other inferior courts, no law reports cover them, and analysis is closed. All we have are the names of the contending parties as they appear in Dixon’s diary, and his later statement that

the first brief he held was against the barrister H. C. Winneke.'?

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DIXON

With a view to supplementing his income Dixon applied for two fiveyear lectureships offered by the university’s School of Law towards the end

of 1910, one in equity, the other in contracts and personal property. Most

of his competitors were more experienced in the law and had shone more

brightly as students. The first lectureship went to John Mackey, forty-seven,

with experience in politics as well as the law; the second to John Latham,

thirty-three.'> Dixon made a friend of the urbane Charles Gavan Duffy, four years

older but admitted to practise just fifteen months before him. Both loved riding. At this time Dixon owned a bicycle but not a horse, probably because the family could not afford to keep one.'* But his growing income would

soon lead to the purchase of ‘Garryowen’,'’ and with Charles Gavan Duffy

he would then regularly ride to the country for weekends. (In the 1930s a heavy fall would put paid to this activity.'*) The two had met at the university. Charles was the eldest son of Frank Gavan Duffy KC, Dixon’s lecturer in property and contract, and it was through the son that Dixon came to

know the father better. Prior to his appointment as a High Court judge in 1913 Frank Gavan Duffy was a brilliant advocate rivalled only by the legendary James Liddell Purves KC, still at the bar when Dixon was admitted though he died later that year. Purves advised brother barristers that their first consideration

should be ‘the predominating character of the presiding Judge’.'” Frank

Gavan Duffy followed the same rule. Arthur Dean, historian of the Victorian bar, described him as ‘short of stature, vigorous and impulsive in manner,

quick-witted and of sparkling vitality. He was a magnificent advocate in hard fought cases’.'® This man, with whom Dixon would sit on the High Court

in the 1930s, recognised Dixon’s potential and took him under his wing. In Dixon’s words, He had the odd and forgotten theory that what mattered most in courts was advocacy, and he had thought about it a lot and he had practised it with extraordinary success. I had a room in Selborne Chambers at that time which fortunately was almost the last room before you got onto Bourke Street, and in the niceness of his disposition he used to come in

to me and say, ‘Dixon, come up and see what I am going to do in suchand-such a court’, And it was worth going up to see what he did, I can assure you. If ever there was a man who could make bricks without

straw in open court it was Sir Frank Gavan Duffy.'?

Another mentor—‘My chief mentor in the matter of language’, Dixon

called him—was Gerald Pigott:

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YOUNG

BARRISTER:

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19

He came over to my chambers on one very wet day, wearing galoshes, raincoat and carrying an umbrella, all of which he took off and hung up, apologising for making my chambers in such a mess. Then he sat down and said he had come on a very difficult errand and that he hoped I would not be offended, but he thought it was very worth while doing it. He had listened to me in court and to his horror I had used the word ‘firstly’ and he had come over to tell me that the word ‘first’ was an adverb and for the future I had better use it, and not get into the way of putting an ‘ly’ on a perfectly good adverb. I told him that I would attempt to remember that ‘first’ was an adverb and told him that ‘second’ could be used as an adverb also. That he disputed however.”

These older barristers knew Dixon had worries and went out of their way to be friendly. The legal profession was a small world and J. W. Dixon’s unhappy

fortune was no secret. J. L. Read, Dixon’s associate in 1954-55

and later a County Court judge, recalls his father, A. L. Read (also a County Court judge), speaking of how Dixon regularly had to help his inebriated

father home from the office.2! One’s view of human nature comes from the

evidence to hand. Richard Searby, Dixon’s associate from

1956 to 1959,

found him sceptical about any person’s ability to change his own nature— he believed characteristics were imprinted and could neither be erased nor rewritten, though they might be hidden for long periods. He never treated a morally wrong action or deceit as a lapse on the part of the person responsible, but as a manifestation of character. He looked very objectively at life, and he couldn’t be said to be pessimistic, because he got so much enjoyment out of analysing it. I remember Mr Justice Taylor came to see him once and wanted Dixon to go and have lunch at the Tattersall’s Club, which Taylor was a member of, with some gentleman in Sydney who had achieved some eminence. Dixon said, No, he couldn’t, really he couldn’t, and Taylor said to him, ‘Well, you may be thinking about his past, but he’s a totally reformed character and he’s very respectable now’. Dixon replied, ‘Well, thank you very much, but I won’t’. And when I went in, after Taylor had left, he told me about all

this, and said ‘When I hear stories like that about people who are reformed characters, the only thing it ever reminds me of is the story of the cannibal chief who lost his teeth and became a vegetarian’. That was the attitude. He was very shrewd about human nature.??

Though Searby might not have considered him a pessimist, Dixon would later write that ‘There are minds, perhaps mine is one, that take

20

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DIXON

comfort in pessimism, which reconciles them to the inevitable’. A fatalist unable to rely on a father who could never change, Dixon knew the impor-

tance of self-reliance, especially as his parents relied so much on him. His father is the leading character in the 1911 diary, the only surviving diary from the early years.

In 1908 Dixon’s family had moved again, from 59 Lisson Grove to 29

Chrystobel Crescent, Hawthorn,” but already by the second half of 1910

J.W. had decided that a more modest house further east, at 35 Russell Street in Camberwell (still there), would be in order, so at the beginning of 1911 they were moving yet again. (Joseph Dixon, meanwhile, had sold ‘Morley’

and moved to ‘Olinda’ in Power Street, Hawthorn.) Although Dixon earned

more money in 1911 than in 1910, appearing in the Insolvency Court and the County Court, often in complex equity and commercial cases—trusts,

mortgages, contracts, partnerships and the like—he was still coaching law students (in real property and contract) and counting every penny’s expenditure, sometimes reduced to borrowing from his mother, to whom he paid quarterly rent.

The first entry of interest in his 1911 diary comes on 2 January: at the

Melbourne

Cricket Ground

Dixon and his father watch the second Test,

Australia against South Africa, but they meet there, they don’t go together, J.W. being of independent mind. The following day Owen has to enjoy by

himself the spectacle of Victor Trumper scoring 159—‘Father joins me at 4 p.m.’ There is a published photograph of Trumper scoring his hundredth run, with the crowd in the background—Owen Dixon somewhere out there, alone.’ On the final day, 4 January, when South Africa crumbles, giving the

Test to Australia: ‘Father to town in morning I to match. Home after lunch

find him gone Go to match 4 p.m. where I find him * ’. The sign, which it

would be presumptuous to render in brutal English, appears every few days. Dixon would often stay at home to watch over him. ‘F * in morning. Stayed with him afternoon. Translated Hec. 200-250’ (18 January, a working

day, when Dixon should have been in chambers). This is one of a sequence

of entries in which the only change from day to day is the number of lines of Hecuba he has mastered. By translating Euripides he could be a million miles away while keeping an eye on father in the next room. Sometimes he would stand watch all night: ‘Father very bad again . . . Did not go to bed F

to sleep 4 a.m. (24th)’ (23 January). Around this time Dixon made his mother

a solemn vow: for as long as he lived he would never drink alcohol. He kept his promise. It was not a matter of disapproving of drink per se—at the

dinner parties he hosted he would always ensure that there were adequate supplies of alcoholic drinks for his guests.

2

YOUNG

BARRISTER:

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21

From time to time he would take a train to a country town for County

Court cases on the circuit—he visited Warragul, Foster and St Arnaud that

year. He kept in touch with his parents by telegram because he was concerned for his father. Things could have been worse at home. The family was strongly bonded and J.W. went to the office on most days and often accompanied his wife and son to concerts (to Nellie Melba’s in November, for instance). December 1911 was a significant month. Dixon made his first appearance in the High Court, in Sydney, to which a Melbourne case had been transferred. It was highly unusual for a barrister to appear in that court after little more than a year and a half at the bar. The bench of five consisted of Sir Samuel Griffith (Chief Justice), Sir Edmund

Barton, Richard E. O’Connor,

Isaac Isaacs and Henry Bournes Higgins. Griffith, Barton and O’Connor had constituted the Court’s full strength from its inception in 1903 to 1906, and all three had played major roles in the framing of the Australian Constitution. Isaacs and Higgins had come onto the bench in 1906. Both had been elected to the 1897 Constitutional Convention, but only Higgins had subsequently been elected to the drafting committee. Griffith struck Dixon, perhaps not at this early time but over several years’ observation, as a dominant legal mind. To my way of thinking, it was a legal mind of the Austinian age, representing the thoughts and learning of a period which had gone, but it was dominant and decisive. His mind clearly was of that calibre: he did not hesitate, he just felt that he knew; and that what he

knew was right. So appearing before him was in itself an interesting task.”

Dixon travelled alone to Sydney by train, and after two days seeing the sights and swimming at Manly and Bondi he entered the High Court on 18 December for a case the complexities of which are not particularly interesting.”” It was heard by the original three High Court Justices, Griffith, Barton and O’Connor. A related case, out of which it had arisen, had gone all

the way to the Privy Council.?* Dixon, having been briefed by his uncle, J. E. Dixon, represented (alone) the infant respondents, one of three groups of respondents. One question as far as his clients were concerned was whether annuities bequeathed to them by their great aunt were payable out of the estate’s capital, its income, or a combination of both. Dixon argued, against

their father who had been bequeathed the income of the aunt’s residuary

estate, that the annuities should be paid solely out of that income, as held by Chief Justice Madden in the Supreme Court of Victoria. His argument persuaded Griffith who two days later affirmed this part of Madden’s judgment, with Barton and O’Connor concurring.” Edward

(later Sir Edward)

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Mitchell KC led for the appellants. He was fifty-six and was even taller than Dixon, bald, forceful-looking with penetrating eyes behind wire-rimmed

spectacles, but dreary in presentation (‘the long (k)night cometh, when no

work is done’, Mr Justice Rich reportedly said of a court appearance by Mitchell>°). Dixon found time to watch the first Test between Australia and England at the Sydney Cricket Ground, and then on 22 December his mother and father arrived. The three spent the last days of the year visiting galleries

and gardens, taking boating excursions and seeing relatives.

Dixon practised mainly in the County Court of Victoria during his first three years at the bar, but from 1913 increasingly in the Supreme Court. By his own account, ‘I did not practise in the Criminal Courts and it was only by

chance that I was ever there’.*' By 1913 his reputation was strong in the pro-

fession, his name familiar to important solicitors and their clients. That year he was asked, with other young barristers, to attend on the Empire Parliamentary Delegation led by Lord Emmott, which was touring the Dominions to meet Members of Parliament with a view to establishing inter-parliamentary conferences. Dixon later told Lord Reid: One Donald Macmaster KC a conservative MP of Canadian birth fell to my lot. He talked to me incessantly of the Marconi case. I think he had been on the Committee. I am afraid that his story left an indelible impression of the un-candid and insensitive character of Rufus Isaacs & of course still worse of Lloyd George.*?

Dixon was interested in politics, but objectively. He never contemplated

going into Parliament and rarely discussed his political preferences. In 1957 Richard Searby asked him whether he had known Billy Hughes:

Yes, he said, he had known all the Prime Ministers of Australia since its federation. He then started with Barton and ran through every Prime Minister in order—an account of his background, how he got into poli-

tics, what he subscribed to or was responsible for, the principal events of his Prime Ministership, his departure from politics and subsequent career. He spoke without pause or hesitation for over an hour. It was a

remarkable tour de force.*®

Though he never considered politics an especially high calling (he was intel-

lectual through and through), his mind turned naturally to matters of importance and interest. In 1914 Dixon, Charles Gavan Duffy and Maurice Blackburn were recruited by Sir Leo Cussen of the Victorian Supreme Court, a most eminent

judge, to assist him by checking his draft consolidation of the Victorian

2

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statutes. Sir Leo had worked on this since 1908 and the result was the enact-

ment of the 1915 consolidation of the whole statute law in Victoria.*4 This experience moderated some of Dixon’s reformist tendencies: I think that we were really intended only to be proof readers, but we thought we were enlisted in the army of law reformers. We sat evening after evening and read the bills and made notes. Sometimes in the morning we paraded before a judge of immense learning and understanding, one great in his sympathetic nature, and made our suggestions. Usually we found them disposed of one by one. One on the ground that you would not get it through the Legislature, another because the same thing had been done before in some jurisdiction or other of which we did not know, a third because it really would not work, and so it went on. I found myself, before I had passed the age of enthusiasm, confronted by a mind that really knew, one of depth and breadth. I learned that there were limits

to what you really could do and to what you ought to attempt, and that the best course was to endeavour to provide an intelligible body of statutory law likely to be construed in the way which you intended.>*

That he was chosen by Cussen indicates his reputation within the profession at the time. It is indicative too that by 1913 he was arguing cases for or against the Law Institute of Victoria, in the Supreme Court and the High Court, involving contested admission to practise,** and appearing with eminent barristers including Hayden Starke.*’ His practice was extensive—he was accepting briefs for cases ranging from industrial matters to local government and traffic, insolvency, wills, defamation, and intellectual property,>* and his work was coming from a very wide range of solicitors, no one par-

ticular firm standing out.

Many cases are unwinnable, but sometimes he would win a case others said he ought not to have won. On 23 July 1914 he was representing a defendant who had plainly reneged on a written agreement, which the complainant claimed was an ‘account stated’, between himself and the defendant, to pay a certain sum on dissolving their business partnership. The

Court of Petty Sessions had found against the defendant, who now sought a review of that decision on the ground that the written agreement was not

an ‘account stated’ but a contract, which the Court of Petty Sessions had no jurisdiction to enforce. Dixon was opposed by Tom Brennan, whose room in Selborne Chambers was up the stairs from his own. Brennan confidently

cited a definition of ‘account stated’ in an 1837 case: ‘The account stated is nothing more than the admission of a balance due from one party to another’, but Dixon had found a case in 1834 in which it had been deter-

mined that to constitute an ‘account stated’ there must be some antecedent

24

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DIXON

liability or transaction with reference to which the account is stated. ‘Here’,

he pointed out, ‘there was no suggestion of a prior liability’. It was a purely technical point but that would count heavily with Mr Justice Hodges, a humourless and irascible judge, rigidly logical in his decisions. As Dixon spoke, Hodges took it all down in shorthand. He was most impressed. ‘I am afraid the defendant’s objection’, he declared, though entirely technical, is nevertheless a good one. I did not think there was an authority that went as far as that cited . . . However, there is a case

which decides that there must be an antecedent liability, a previous transaction. What we have in this case is a memorandum of the conclusion of the terms on which the parties agreed to dissolve partnership, and, though it gets very close to an account stated, I do not think it is one.°?

This skill was among the first things Robert Menzies noticed about Dixon

in 1918. He remarked on Dixon’s ‘close knowledge of the forensic qualities and methods of his leading opponents, and of the judicial strengths and weaknesses of the judges before whom he appeared’.*° The character of the judge was crucial. Dixon once appeared in the County Court before Judge

Moule, an ardent, elderly cricket enthusiast, and had a witness, a young lad, describe his first sight of the car that had knocked him down. Instead of having the boy say ‘20 to 25 yards away’, which could easily have been contested, he got him to say ‘It was about the length of a cricket pitch, sir’. Moule bent down from the bench, pleasantly animated, and in the friendliest

and most interested fashion asked the boy where he played cricket, was he a batsman or a bowler, and so on, and concluded by noting that if the boy said it was the length of a cricket pitch then of course that must be right.‘ Sometimes Dixon miscalculated over which facet of a judge’s charac-

ter would be uppermost. On one occasion, endeavouring to make bricks with minimal straw a la Frank Gavan Duffy, he engaged in a tongue-in-cheek ‘play’, which did not come off. The plaintiff, his client, was advancing

common-law claims for damages for conversion, trespass, and slander of title,

and she and Dixon wished to avoid having the case tried by a jury, which they thought would be unsympathetic. Besides, Dixon thrived in equity

cases where his forensic manner (which included a running commentary, in

undertones, on the weaknesses of opposing counsel’s argument—most dis-

concerting) was highly effective.*? To this end, incidental claims for equitable (as distinct from common-law) relief were thrown in, and in particular for ‘An injunction to restrain the defendant from selling, mortgaging, or

otherwise disposing of’ a contested piece of land. Dixon then argued that ‘There being equitable claims, there can be no right to a jury’."? Equity cases

2

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are heard by a judge alone. In this instance the matter was being heard by Hodges in chambers. While Dixon’s argument cited authority and was severely if narrowly logical, and might be expected to register strongly with Hodges, on this occasion common sense and common law triumphed. ‘I look upon the whole of the claim as a Common

Law claim’, Hodges declared,

‘and I therefore order the case to be tried by a Judge and jury’. Dixon sought leave to appeal to the Full Court on the matter but the Justices were unsympathetic. Mr Justice 4 Beckett, himself a first-class equity lawyer and normally gentle in disposition, dismissed Dixon’s argument. ‘This claim for an injunction is a mere burlesque of an equitable claim. You show no equity at all, but claim to oust defendant’s right to a jury by the mere use of the word “injunction”.’ The Chief Justice, Sir John Madden, was even harsher: ‘It is a palpably bad Common Law claim masquerading in a ragged gown of Equity’. Mr Justice Cussen agreed, and nothing more was heard of the ‘palpably bad’ case. This incident shows that Dixon was not averse to impudent devices when he felt the occasion warranted them. It is also an example of the rare occasions when his argument was completely rejected by the judges—usually his presentation elicited respect and admiration from the bench, partly because of the ever-increasing extent of his knowledge of case law and his ability to go directly to the heart of an issue and argue his propositions concisely and with intellectual force. In these early cases we see Dixon beginning to amass a formidable knowledge of the 600-odd years of reported decisions. The Melbourne barrister Grattan Gunson told Dixon’s associate Richard Searby of a case in which he was led by Dixon. It turned on a point

on which Gunson could find no relevant authority, as he told Dixon before

the latter left on a trip to Sydney. A few days later Dixon returned and in the interval Gunson had found a case from the 1840s in which the majority of a full bench favoured the required position. Excited, he called on Dixon at the earliest opportunity and poured out his good news. Dixon replied, ‘Well, we can refer to it, Gunson, but I’ve always thought the dissenting judgment’, specifying the page, ‘was right. Don’t you think so?” Gunson was

flabbergasted.**

Later, as a judge, in common law matters, Dixon would often write a

judgment straight through without authorities. Searby once pointed to this

deficiency and Dixon laughed in his distinctive, almost ‘You think we had better decorate it, then?’ He took back and, starting at the beginning, inserted at every relevant the case, year of the report, name of the judge, and page at

appeared.**

cackling manner. the sheets of paper point the name of which the passage

26

OweEN

DIXON

One sees this phenomenal ability already being put to deadly effect by

1918 in wrong-footing not only opposing counsel but judges preparing to

rule one way and suddenly finding the road closed, as Mr Justice Hodges did in a case involving a contract for the sale of land, Matear v Lyne.” Dixon was counsel for the defendant, and it is enough to quote from Hodges’s judgment: The defendant, and the defendant's wife, I find myself unable to trust. . .

The question is, Can I give the plaintiff the redress that he asks? I am faced on this subject with

that statement

which

Mr.

Owen

Dixon

referred me to in vol. xxi. Halsbury’s Laws of England, p. 21... I think that is the position which I am bound to assume . . . I do not understand the reasoning on which the cases are based."* With his phenomenal memory of reported cases he never had any problem, when responding to unexpected arguments of opposing counsel, in citing, extempore, cases he had not previously considered in relation to the matter

at hand. Everything was done with consummate ease and accompanied with sudden bursts of laughter at the expense of opposing counsel, who would be thrown off balance at the weakest points of their arguments. Mr Justice Lowe, responding to a complaint from Edmund Herring that Dixon

was laughing at his argument, cautioned, ‘I will have you know, Mr Dixon, that laughter is no argument in my court’. ‘I know, Your Honour’, Dixon

replied, still laughing, ‘that’s the trouble!’ While he radiated blithe indifference it was undercut by physical man-

nerisms suggestive of inner tension, and he probably never went into court without very full preparation. He told his associate John Read that as a bar-

rister he had been nervous, and felt he should be nervous, at the opening of every case in which he had ever appeared.” Frank Russell’s 1924 article on Dixon brought out vividly the contradictions between outward assurance and inner tension: His wide smile, happy in its unconcern, lights up his face when he is listening to his learned brother put the case he is soon to reduce to powder. When His Honor calls upon him to reply to a proposition, Dixon twitches his gown over his right shoulder, coughs nervously, gives a short, stac-

cato laugh, of which he appears entirely unconscious, and then, however

unawares he seems to have been taken, delivers a reply which is com-

plete to six decimal places.** Menzies also commented on the nervous cough, which in the presence of his brother barristers generally heralded ‘a devastating blast at somebody or

something. He would freely and unpityingly analyse people and expose

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their mental deficiencies in what seemed to me to be a heartless manner. But I came to know that this was a nervous mannerism’. Among closer friends the cynicism

vanished

and

he would

be ‘warm-hearted,

tolerant of ...

deficiencies, and revealing in his thought’.°? He was certainly popular with

barristers of his own generation, as reflected in his election to the Com-

mittee of Counsel (now the Victorian Bar Council) on 1 March 1916 as the

member ‘called under ten years’ of practice. Thereafter he was re-elected

every year until 1929, standing down in the second half of 1926 when he was an Acting Justice of the Supreme Court.? During World War I nineteen of Melbourne’s barristers were away at the front (five never to return). They included Dixon’s friends Charles Gavan Duffy and Russell Martin, both of whom

survived. For Dixon war

service was out of the question—his parents depended on him. Interestingly, he was not subsequently criticised for not having served in the war as some of his contemporaries {including Menzies) were. From 1913 to 1918 the

number of reported cases in which he appeared in the Victorian Supreme

Court each year went from five to fifteen, and he began to appear more frequently in the High Court. His first important constitutional case came in September 1916 when, before the Full Court (Chief Justice Griffith and Justices Barton, Isaacs, Higgins, Gavan Duffy, Powers and Rich), he appeared

in a case involving the arbitration power.°> Thereafter he appeared in the High Court with increasing frequency in significant constitutional cases, as well as in a wide range of non-constitutional cases.°” The High Court’s methods were very different then from what they would be like following Dixon’s appointment there in 1929. As he would point out in 1952, When I first began to practise before it its methods were entirely dialectical, the minds of all the judges were actively expressed in support or in criticism of arguments. Cross-examination of counsel was indulged in as part of the common course of argument. For myself, that system was advantageous. Apparently I was endowed with a greater degree of endur-

ance or lack of sensibility than most people, but .. . there was a large body of counsel who

disliked that procedure, and when I came to the

Bench I had formed a conviction that it was not a desirable one. I felt that the process by which arguments were torn to shreds before they were fully admitted to the mind led to a lack of coherence in the presentation of a case and to a failure of the Bench to understand the complete and full cases of the parties, and I therefore resolved, so far as I was able to restrain my impetuosiry, that I should not follow that method and I

should dissuade others from it.

28

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DIXON

Not only did he revel in being cross-examined by High Court judges,

he knew how to sway them. For instance he had learned that ‘candour is not merely an obligation, but that in advocacy it is a weapon’, and also that it is not case law which determines the result; it is a clear and definite solution, if one can be found, of the difficulty the case presents—a solution worked out in advance by an apparently sound reconciliation of fact and law. But. . . the difficulty which has to be solved must be felt by the Bench before the proper solution can exert its full powers of attraction.”

On 2 May 1918 the young Robert Gordon Menzies was admitted to

practise. Born in the remote Victorian town of Jeparit in December 1894, he had been a brilliant student, taking a first in Law and winning a string of prizes including the Supreme Court Judges’ Prize. He approached Dixon

who agreed to take him as the first of the three pupils he took while a junior, the others being Henry S. Baker (later a Tasmanian politician) and James

B. Tait. Dixon, by this time, had moved to room 21 on the eastern side of the lower ground floor of Selborne Chambers, just south of the stairway

that ‘stepped’ the building halfway along its length, where he was far more in the centre of things. Menzies later recalled his experience here in con-

siderable detail, including Dixon’s way with a typical constitutional brief. It arrived from the solicitor with reams of notes and references to related

cases. Dixon, only interested in the statement of facts at the front of the brief, detached all the other pages and put them aside. ‘Menzies’, he said, it’s a great mistake to allow yourself to be side-tracked by what may turn out to be judicial errors. Our job is to interpret the Constitution, not to interpret other people’s interpretations. Let us now read the Constitution and interpret it as a comprehensive statute. Let us pay particular attention to the basic structure of the Constitution and to every section which may bear upon our problem, and see if we can reach a conclusion. When we have reached one, we shall then turn to the decided cases. If they support our conclusion, we may take it that we are right. If they don’t, we must

examine them to see whether they can be distinguished from our case

successfully. If they are indistinguishable, we shall have to decide that our client be advised to attack them as wrongly decided, or advise him that our opinion is AB, that the decisions make it clear that the High Court will decide against that opinion, and that he should act accordingly.

Dixon was briefed in September 1918 to appear with his new pupil in the

High Court in an industrial arbitration case they finally won, the first of

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29

several cases in which they would appear together or opposed over the following years.°! These were interesting times for Australian constitutional law. The original High Court Justices—Griffith, Barton and O’Connor—had helped draft the Constitution so they were in effect interpreting their own work. They took seriously the federal spirit of the compact and established two important doctrines: the immunity of State and Commonwealth government agencies and instrumentalities from (respectively) Commonwealth and

State laws, particularly those imposing taxation; and the doctrine of reserved

(residual) State powers—the principle that, because the Commonwealth’s powers were specific and the States’ residual and mostly concurrent, the

Commonwealth’s powers should be interpreted narrowly. This was a doc-

trine, or rather, principle which held sway in the interpretation of the United States Constitution. There had been a tug of war in the early years of federation between the High Court and the Privy Council on the matter. The High Court’s decisions in D’Emden v Pedder (1904), Deakin v Webb (1904), the Railway Servants’ Case (1906), and Baxter v Commissioners of Taxation (New South Wales) (1907) were at variance with the Privy Council’s in

Webb v Outtrim (1907) where the Privy Council said that, in interpreting the Constitution, courts could not ‘consider the knowledge of those who framed the Constitution and their supposed preferences for this or that model which might have been in their minds’.** This view was finally accepted by the High Court in the Engineers’ Case of 1920, the Court’s earlier D’Emden v Pedder line of reasoning, based on the federalist implications of the Constitution, being rejected, much to the displeasure of the States.

By then the bench had entirely changed. In 1906 it had been augmented

by the appointments of Isaacs and Higgins, political radicals favouring the growth of federal power at the expense of the States and thus predisposed to challenge doctrines enshrining States’ rights. However, they were in a minority. O’Connor died in 1912 and in 1913 Gavan Duffy, Powers and Rich were appointed, making a court of seven. Of the new judges only Gavan Duffy favoured the old doctrines, but as late as 1919 the implied immunity of State instrumentalities (for instance railways, electricity supply and water supply)

from federal control was reaffirmed in an industrial arbitration case in which

Mann and Dixon, for the State of Victoria, successfully argued for the old doctrine.“ After Griffith left the court that year the way was open for the change ushered in with the Engineers’ Case in 1920. Both doctrines— immunity of instrumentalities, and reserved State powers—were thrown out in a decision that brought the wage structures of (for example) Victorian instrumentalities, entirely financed

by the people

of Victoria, within

the

30

OweN

DIXON

jurisdiction of a body, the Federal Arbitration Court, owing no responsibility to the electors or Parliament of Victoria. The principle of mutual immunity

of State and federal instrumentalities had been endorsed by the people at three referendums, in 1911, 1913 and 1919, but a centralist-minded majority of the judges was only too ready to be persuaded by the arguments of the young Robert Menzies and took a literalist approach to the Constitution that downplayed its federal spirit—Menzies’ most signal victory as a barris-

ter. Soon, as a newly appointed KC, Dixon would be travelling to London

on behalf of Victoria to try to persuade the Privy Council to reverse the High Court decision. Later, his judgments in the High Court would somewhat rehabilitate the concept of mutual immunities.

Late in 1919 Owen Dixon’s engagement was announced. This took his friends by surprise—he was so hard-working they had not imagined there

could be room in his life for anyone else.® In the spring of that year his

mother had urged him to improve his tennis by joining the club at the nearby St Mark’s Church of England, Camberwell, and gave him the details. On an appropriate afternoon he walked to the vicarage in Canterbury Road and rang the doorbell. Alice Brooksbank, the vicar’s daughter, answered it. He

told her, ‘My name’s Dixon. I’ve come to tennis’. Soon they were going for

walks together with one of Alice’s younger brothers as chaperone, and at

the end of October her parents announced the engagement.” Alice Crossland Brooksbank was the only daughter and eldest of five

children of the Reverend Hubert Alan Brooksbank and his wife Gertrude Amy, née Buckhurst. Brooksbank had been a student of St John’s College,

Cambridge. From 1891 to 1900 he was vicar at Lyndoch in the Barossa

Valley, South Australia, and Alice had been born there on 27 August 1893.

In 1900 the family had moved to Adelaide, then around 1903 to Melbourne

where Brooksbank was headmaster of Christ Church Grammar School, South Yarra, before moving to a parish in Williamstown and finally to St Mark’s. Alice was a pleasant woman of twenty-six when Dixon met her. She

was dark-haired, reasonably tall, sociable, by nature sensitive and endowed

with a sharp intuition, but not intellectual. Like Dixon, she never drank alcohol. Above all she was a woman of oldfashioned virtues, which Dixon

respected. They were married on 8 January 1920 in St Paul’s Cathedral by the Dean, John Stephen Hart. It was a private, not a major social, wedding. On the certificate of marriage Dixon wrote his address, 1 Fermanagh Road,

Camberwell, a small cottage to which his family had moved from Russell Street that year. The witnesses were Dixon’s mother and father and Alice’s mother.**

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This marriage would be stable and happy, though of course it was understood that Dixon would continue to work the extremely long hours to which he had become accustomed. While Alice may not have been someone to whom he could talk deeply about his work, she would be a cherished companion whose strength of character and fund of common sense would make her a pillar of strength for a growing family, particularly later when Dixon would be regularly interstate on the High Court. It was a marriage in which she would be able to develop her own outside interests.

3

AKC IN LONDON 1921-1924

DIXON TOOK SILK ON 2 March 1922, twelve years and a day from his admission to practise. By this time he was appearing in the majority of High Court cases emanating from Victoria—in important constitutional cases as a matter of course, in equity and common-law cases, with only occasional

forays into matrimonial and criminal spheres.! Towards the end of 1922, on

behalf of Western Australia, Tasmania and New South Wales (and effec-

tively the other States), he travelled to London to appear before the Judicial

Committee of the Privy Council (known as ‘the Board’) to seek leave to appeal in the Engineers’ Case,’ and a year later made a similar trip on behalf of vendors of shorn wool (and in effect the Central Wool Committee). Alice Dixon kept an informative diary of the 1922-23 trip and Owen Dixon kept

one of the 1923-24 trip—the only extended interior perspective of his that survives between the 1911 diary and 1935 when the long run of completed diaries begins. Dixon’s father also kept a diary of the 1922-23 trip but it offers little of use here. On 1 August 1921 Chief Justice Knox of the High Court spoke for the majority of his bench (Gavan Duffy and Powers dissenting) in denying a certificate (under section 74 of the Constitution) to appeal to the Privy Council with respect to questions decided in the Engineers’ Case, in particular the bringing of State instrumentalities such as railways within the jurisdiction of the Federal Arbitration Court.’ Section 74 provided against any appeal where the High Court had decided a question regarding the limits of the powers of the Commonwealth and States ‘as between themselves’ (or inter se) unless the High Court certified that the question ought to be determined 32

3

KC

IN LONDON:

1921-1924

33

by the Privy Council. Sir Edward Mitchell and Dixon had argued on behalf of the Minister for Trading Concerns for Western Australia (and the other States)—and against Menzies for the Amalgamated Society of Engineers and Frank Leverrier for the Commonwealth—in support of a certificate being granted in view of ‘The reversal of principles which have stood for so many

years in this Court’.4 Now the Minister for Trading Concerns for Western

Australia, the Attorney-General for Tasmania, and the State of New South Wales were seeking from the Privy Council leave to appeal, and it was Dixon

they chose to represent them. He was also briefed to appear before the same

body in other matters, a Western Australian metals case and a New South Wales landlord-and-tenant case. Five of them made this trip, Dixon’s parents coming along to see the Old Country and occasionally to help look after Franklin Owen Dixon, born 12 March 1922, and seven months old when they boarded the Khyber at Port Melbourne on Saturday, 21 October 1922. (J.W.’s journal of the trip is mostly about Franklin and intended as an amusing keepsake for him.) Around fifty friends and relations saw them off including Dixon’s close colleagues Russell Martin and T. S. (‘Sammy’) Clyne. First stop was Adelaide where Dixon had a meeting with Walter J. Young, Vice-Chairman of the Central Wool Committee

(CWC)

for which

Dixon had been acting as senior counsel, so far with success. In November 1916 the British Government had contracted with Australia to buy the remainder of that season’s wool clip at an agreed price per pound (the Imperial Wool Purchase Scheme), and the CWC had been formed to control

the operation, of enormous economic significance for both countries; for the remainder of World War I, Britain had continued to purchase all of the Australian wool clip not required by the local manufacturers.’ Disputes inevitably arose between the CWC and sections of the wool trade.§ Dixon had come to know the leading members of the CWC and was becoming increasingly close to its Chairman, Sir John Higgins, a confidant and something of a father figure in the late 1920s and 1930s, even before J. W.’s death. As Dixon left Melbourne a vital case was proceeding in which he had been acting as the CWC’s senior counsel. This was the Wool Tops case. His juniors, E. M. Mitchell and Russell Martin, had been left to carry on in his

absence. The CWC

stood to lose £282 808 it claimed as owing to it.”

Whether or not Dixon sensed the disaster around the corner or felt like a deserter from a sinking ship, his discussions with Young were unlikely to

have been relaxed.

He was periodically and deeply depressed during the voyage and turned

to the Agamemnon

to distance himself from his concerns.* He and Alice

(whose diary of the trip provides all the quoted insights here) were regularly

34

OWEN

DIXON

seated at the table of the ship’s doctor, where company included a young

American woman whose ‘conversation ... disgusted Owen’, as Alice observed (25 October 1922), not that the woman would have noticed—he

was kindly and good-natured, but his sense of propriety was strong. They made the usual stops. At Port Said the ship coaled at night: Owen and Mrs Dixon Miss Mills and I got in a rowing boat to row to the wharf. The scene was very curious and weird. The darkling water, large outlines of steamers and weirdest of all were the many large rather

flat barges filled with coal and coalers. A kind of flare is used for light

wrote Alice (19 November 1922). They sipped coffee at an open-air cafe with their Egyptian guide, surrounded in the night by a spectrum of humanity, ‘Egyptians, Greeks, Moors ... a painted French lady’, and clamorous

vendors of paper flowers, Turkish delight, beads and curios. At Marseilles “Owen got on wonderfully all day with his French’ (25 November 1922).

During the afternoon they hired a car and saw the botanical gardens and the

Catalan quarter, then ascended to the cathedral where ‘all Marseilles lies beneath you with its docks and harbours and the large suspension bridge standing out clearly’. At sea again, four nights from England, Dixon lay

sleepless. He was depressed over the following two days. He probably knew from Russell Martin, through the ship’s wireless, that judgment in the Wool

Tops case was imminent and the omens bad.’ On 2 December the Khyber

docked at fog-bound Tilbury and Dixon’s family took a train to London, where they were met by John McWhae, Agent-General for Victoria.

They stayed at the Goring, Dixon, his wife and son on the second floor, room 56, his parents below in 34. Alice’s diary details the myriad sights seen

over the following weeks including the Inns of Court (the home of the English Bar—Inner Temple, Middle Temple, Lincoln’s Inn, Gray’s Inn), and

the Court of Appeal and the King’s Bench in the Law Courts building in the Strand. Dixon’s London connections included Sir Arthur and Lady Stanley in whose home (1 Gloucester Square) they dined @ la mode moderne at a polished black-enamel table with electric candles, together with Lord and Lady Novar. Stanley had been Governor of Victoria from 1913 to 1920, Lord Novar (Sir Ronald Munro Ferguson) Governor-General of Australia

from 1914 to 1920. The following February the Stanleys would sail back to Australia with the Dixons.

The very next day, 8 December, Dixon made his first appearance before

the Privy Council. Alice noted that ‘Owen came home rather disappointed.

He put up a fight for the Appeal. He won the West Australian Metal case’ (8 December

1922). In Australia, the States were aghast, the newspapers

3 KC IN LonpDon:

1921-1924

35

outraged. ‘RIGHTS OF THE STATES. APPEAL REFUSED’, Melbourne’s Argus complained, reacting like most other papers:

This is the famous State instrumentalities case in connection with which Mr. Owen Dixon, K.C., went to England to appeal to the Privy Council ...In 1920 the High Court, by a majority, reversed the constitutional principles previously laid down by that court, and endorsed by the electors. Obviously the doctrine of continuity in decisions has been as much affected as the doctrine of the reciprocal freedom of Commonwealth and State from each other's interference . . . The position would be comical were it not so evidently fraught with every element of danger. One would have thought that only in the Wonderland of Alice—and not in States supposed to enjoy responsible Government—would it be possible for the control of the expenditure of taxes raised from the people of a State to be removed from the electors and the Parliament of that State.'°

Assisted by Wilfred Barton (son of Sir Edmund), Dixon had pointed out to Viscount Cave (Lord Chancellor), Viscount Haldane and Lords Dunedin,

Shaw and Carson that ‘the questions which it is desired to raise are of great importance; the petitioners have the support of all the States’. Section 74, he said, did not apply. ‘The question is not as to the demarcation of the constitutional powers inter se, but as to the power of the Commonwealth Parliament, and the Court set up by it, to bind the Crown in the right of the States’. He would later adopt the propositions of this argument judicially."! He backed this one with other arguments but was opposed by the eminent Sir

John Simon KC, who won the day.'? Simon had been Attorney-General from

1913 to 1915, succeeding Rufus Isaacs, and Home Secretary from 1915 to 1916, but the most important part of his political and legal career lay ahead (as Foreign Secretary, Chancellor of the Exchequer and Lord Chancellor).

In the Western Australian metals case Dixon persuaded the Privy

Council not to entertain an appeal by the Crown (in right of Western Australia) against a decision of the High Court that had gone in his clients’

favour on a number of points.!?

There was another case in which Dixon was involved and this was not coming before the Privy Council until late January. The time was filled with visits to parks and historic buildings, parliament, the galleries, and theatres, where

they

saw

Lilian

Braithwaite,

Ethel

Irving,

Miles

Malleson,

Fay

Compton and other actors of the day. They took trips out of town, Alice to relations in Peterborough, Bishop’s Stortford and Birmingham, Owen and his parents to family turf in North Wales and Morley (by this time part of

Leeds). There were also trips to Cambridge, Winchester and Brighton, where they walked the length of the pier.

36

OWEN

DIXON

Towards the end of January they visited Andrew Weir, first Baron Inverforth, shipping magnate and former Minister of Munitions who in

1921 had taken over as Chairman of the Disposals and Liquidation Commission for selling Army stores. Inverforth had approved CWC Chairman

Sir John Higgins’s scheme for the realisation of wool stocks (the British Australian Wool Realisation Association, or BAWRA), and he knew of Dixon

through the latter’s close association with Higgins. Inverforth sent a car to bring Dixon and Alice to his house at Southgate. Alice noted, ‘Their grounds

are magnificent and so is the house. The view across acres to terraced lawns was very pleasing. In the grounds is the old oak under which Handel composed “The Messiah”. The 4 daughters and son were all home ... girls rather too modern for me’ (28 January 1923). Dixon and Inverforth may

have discussed politics as well as wool, for Higgins was channelling ‘inside’ information to Inverforth on Australian Prime Minister William Morris Hughes during the period from late October 1922 to early February 1923—

at this very time. In 1956 Dixon would tell Lord Reid, Of Bonar Law I heard a good deal when he was in office, because he

relied for his Australian information on a man who was accustomed to

consult me when I was at the Bar. W. M. Hughes was our P.M. and, as always, was troublesome in his requests to the Home Government. The man to whom I refer was the late Sir John Higgins (no connexion with

the judge of our land). He was a close friend of Lord Inverforth and it

was through him that advice was occasionally sought from Higgins."

Dixon’s final appearance before the Privy Council on this visit was on

30 January and 1 February 1923, when his clients in a landlord-and-tenant case (on appeal from the Supreme Court of New South Wales) were found

to have broken their covenant and their appeal failed.'5 In this case he was led by the 53-year-old Sir Leslie Scott KC, MP, Solicitor-General in 1922 under Lloyd George but again in private practice since Bonar Law’s becom-

ing Prime Minister on 23 October. On the other side Sir Ernest Pollock KC, Lloyd George’s Attorney-General in 1922, led for the respondent. So while Dixon’s first appearances before the Empire’s highest court were disappoint-

ing in point of results, his qualities as an advocate were now known to sig-

nificant British lawyers; on his next trip to England he would be urged to take up practice in London.

At Tilbury on 3 February 1923 the five Dixons boarded the Orvieto

for home, with stops at Gibraltar, Toulon, Naples, Port Said,’* and Colombo,

reaching Melbourne on 14 March. Immediately on return Dixon settled the memorandum and articles of association of Selborne Chambers Ltd, incorporated on 28 March 1923—

3

KC

IN LONDON:

1921-1924

37

the building had just been purchased on behalf of the Victorian Bar for £45 000. Share capital was £60000, shares £1 each, but only 24000 were issued, a mortgage providing the rest of the purchase price.'” Those subscribing to the memorandum and articles (and applying for shares) included Dixon and John Greig Latham KC, MHR for Kooyong and as prominent a barrister as Dixon. Latham would go on to be (among other things) federal Attorney-General (1925-29, 1931-34), Leader of the federal Opposition (1929-31), Deputy Prime Minister, Minister for External Affairs and Minister for Industry (1931-34), Chief Justice of the High Court (1935-52), and

Minister to Japan (1940-41). Dixon and Latham appeared together or opposed in significant High Court cases through the early 1920s. Appointed KCs in 1922, they had a few things in common including tall physique,

great reserves of energy and intellectual power, and agnosticism, though

Latham was a conventional post-Darwinian rationalist, connected with rationalist societies the thought of which would have horrified the sceptical Dixon. Latham’s mind, trained in philosophy, had a colder application than Dixon’s, and his instincts were profoundly political. Dry and unwelcoming, he could never inspire the kind of widespread affection Dixon drew to himself. Their aesthetic preferences distinguished them too, Latham fascinated with Japanese culture, Dixon entirely Western in sensibility. While there was little affection between these two, together with Sir Edward Mitchell they dominated the Committee of Counsel.

Towards

the end of November

1923 Dixon was off to the Privy

Council once more. Alice, who was four months into her second pregnancy, remained at home with Franklin at ‘Albemarle’, 3 Trafalgar Road, Camber-

well (still standing), the house Dixon had bought at the time of his marriage. It was beginning to feel too small and they would soon move to ‘Beechfield’, 21 Trafalgar Road

(also still there), a late Victorian house of brick with

gabled slate roof and (on either side) substantial gardens, since subdivided from the central section. This was probably the most attractive of the houses associated with Sir Owen Dixon."* The second trip to the Privy Council merits close attention because of the perspective afforded by Dixon’s own diary, which is rich in interesting detail. His loss in 1922 of the Wool Tops case for the CWC had been balanced by a win in the Skin Wool case.'? This was a major legal battle in

which the CWC stood to lose up to £1 700 000. During the first two seasons

of the Imperial Wool Purchase Scheme the CWC, in distributing profits received from the British Government over and above the agreed price per pound, had not distinguished between suppliers of shorn wool and suppliers

of skin wool. Doubts over the justice of allowing the latter to share in the profits determined the CWC in 1918 to restrict the distribution of profits to

38

OweEN

DIXON

suppliers of shorn wool for the 1918-19 season and any subsequent seasons covered by the scheme. The suppliers of skin wool (John Cooke & Co. Pty

Ltd and others) took legal action and the case was fought in the High Court

in late November and early December 1921. The process was complicated by the fact that in March 1922 the Court allowed the plaintiffs to amend their claim. Dixon, assisted by his friend and junior Russell Martin, came into the case on the CWC side in September 1922, representing two suppliers of shorn wool, John Mackay and Charles Robert Murphy (also directors of

BAWRA). The final judgment, in December 1922, went against the plaintiffs. It was held inter alia that no contractual relation had ever been created between the Imperial Government or the Commonwealth Government and the suppliers of wool. The judges (Knox, Gavan Duffy and Starke) complimented Dixon and simply reproduced his points:

We agree with Mr. Owen Dixon, in his able argument, that this was an arrangement between Governments—an arrangement of a political

nature, as he phrased it, not cognizable by Courts of law, creating no legal rights and duties and depending entirely for its performance upon the constitutional relationship between those Governments

and their

good faith toward each other. The Imperial Government was not addressing itself, again to use the very language of the learned counsel, to a mercantile agent: it was addressing itself to a political power, a political entity .. .2°

The plaintiffs thereupon appealed to the Privy Council, and Dixon and Martin (with Gordon Brown in London) were briefed to represent Mackay and Murphy, and effectively the CWC, which (with the Commonwealth) was to be separately represented by Sir John Simon KC and Wilfred Barton. Dixon’s fee was written on the front of the brief from the law firm Blake &

Riggall: 1000 guineas. It was a case, Dixon was assured by many of his pro-

fessional friends, that was unwinnable—it should never have been won in the High Court. He recalled this when, following his retirement in 1964, he

replied to a letter from an old acquaintance, Ralph Burt, long associated with the law firm Blake & Riggall: ‘Do you remember that it was said in Sydney, and by most respectable, if not highly eminent, counsel that we could not win the Skin Wool case? Perhaps we shouldn’t [have] but you never know what can be done in the law courts until you try’.?!

First class and westbound, Dixon left Melbourne with Martin on

27 November

1923 on the Orsova. Two days were killed playing deck

quoits and reading Hugh Fletcher Moulton’s Life of Lord Moulton (Lord of Appeal and politician): the author ‘like all judges’ sons is of deficient intel-

ligence’, Dixon observed in jest, tempting fate.22 At Adelaide one of the

3

KC

IN LonpDon;

1921-1924

39

counsel for the appellants boarded—Harold Sprent Nicholas. Dixon made telephone calls to Alice and his parents, and visited the Supreme Court,

browsed bookshops, and dined at the South Australian Hotel. Across the

Great Australian Bight he read Walter Savage Landor (‘clever and interesting but scarcely captivating’), and glanced through an unwelcome sheaf of documents he had been handed in Adelaide by a woman wanting an opinion on her husband’s will; ‘She added in a note that Mrs McGregor recommended her to get my opinion. Many thanks to Mrs McGregor’ (30 November).

He had the Skin Wool transcripts to study, a vast mass of them, including all

the complex arguments of opposing counsel which he needed to assimilate thoroughly, for they would be coming up again in London. All else was secondary, including meals: ‘St Andrews day ... a haggis was brought in. I passed . . . read skin wool papers until afternoon tea’ (1 December). Dixon needed regular breaks from this intense work. Landor gave way to Froude’s Life of Caesar (1879), and after Perth he read Sir John Murray’s The Depths of the Sea (1912). The usual shipboard pastimes were tiresome. In the Indian Ocean on 4 December ‘whilst the ship danced to the same old tunes’ he ‘talked with Russ’ and read Virgil’s first eclogue. On board was Britain’s most eminent surgeon, Sir William Macewen, ‘who sat and talked with me for an hour’ (5 December). Dixon would have valued the conver-

sation as medicine rivalled the law in his esteem. Out there on the ocean he was still in touch with Melbourne. Arthur Dean and T. S. Clyne each radioed asking to take over his room, number 22, in Selborne Chambers, given to Clyne on 5 December by return radio; Dixon was about to succeed Latham in room 40—first floor, west side, near

the Bourke Street end, a large room. Also on 5 December he ‘went through the War Precautions Regulations relating to wool and sheep skins and made elaborate notes . . . took from 1.30 till 7. o’clock . . . glanced at the moving pictures’. He spent the next day on Virgil and ‘trying to get a complete grasp of the Audit Act’ but ‘wasted the evening’. The last phrase occurs only occasionally in Dixon’s diaries. The force of his advocacy, like the quality of his judgments from 1929, depended on his devoting most evenings to work, generally until 1 or 2 a.m. Occasionally he would be dragged off to make up a team—‘played off mixed doubles ball tennis and lost. My partner was Mrs Bain who had just failed to get a divorce so I lost deliberately’ (7 December). On 8 December he had the Purser book him and Martin on the fast Train de luxe, Toulon to Paris, talked to Sir William Macewen, finished Depths of the Sea, and ‘read skin wool transcript’. At Colombo on 12 December he took a break. He and Martin hired a ride to the Peradeniya Gardens and around Kandy and its lake, with lunch at the Queen’s Hotel. But back on the ship the next day

40

OweEN

DIXON

he was ‘arguing out skin wool’ with Martin, rereading transcripts, studying

‘the judgments of the High Court particularly’; then on 14 December ‘the transcript all day’. It was not just for himself he was preparing his arguments. In London he would be advising Sir John Simon, an outstanding advocate. Tragically,

Simon had been widowed under thirty when his wife died giving birth to

their first son, plunging him for fifteen years into ‘the loneliness and dejec-

tion of sorrow’.?? Yet he was reserved and splendidly self-contained, and in court had a genius for the winning point, an impressive presence and a phenomenal command of detail. Simon knew little about this case, and to win

it he would be dependent on Dixon.

It was now time to set about systematising the materials in a thick note-

book:”* ‘Started to make a chronological set of notes of the case at which I

worked until afternoon tea time’ (15 December); ‘Settled down to complete

my notes of the chronological order of facts in the skin wool case. This took

all day till 10 o’clock’ (16 December). These notes are extraordinarily detailed, consisting of thousands of facts. While he wrote, Africa loomed to

port—Cape Guardafui. Dixon continued: ‘Read up the documents prepared by Sharwood [Assistant Commonwealth Crown Solicitor] which are mostly

rot’ (18 December); ‘Talked to Sir William McEwen’, ‘Masque ball which I

did not attend’ (19 December); ‘Played quoit tennis against a Japanese named Oyaki. Worked at skin wool case’ (20 December).

Into the Mediterranean Orsova hit heavy weather, wildly pitching and rolling. ‘A strong head wind was blowing and a heavy sea running’, hardly

anyone presenting for breakfast. A lot of water was shipped bow nosed the swell and ‘showers of spray reached even the only one walking that rolling ship was Dixon: ‘I spent most walking round the boat deck. The smoking room had all its

forward as the boat deck’. The of the morning doors and win-

dows shut and was very musty and there was no chance of reading on deck. The afternoon was even worse . . . I found the day quite one of enjoyment’

(23 December). Dixon’s lack of fear in such situations was remembered by

Margaret Connor, formerly Margaret Kitto, daughter of Mr Justice Kitto and

close to the Dixons in the 1950s. On a visit to a dam, Dixon, deep in conver-

sation, walked to the very edge of the unrailed slipway. ‘He felt no danger

there’, she said.?5 Things were still rough nearing Italy, yet ‘Last night after

a Christmas dinner at which the company pulled bon-bons blew whistles contained therein and threw artificial snowballs a dance ensued. The proceedings shewed how much sea sickness is a “permission of the will” ’. At Toulon the customs and baggage procedures were chaotic and Dixon

and Martin assisted fellow passengers, including widows and orphans, to

3

KC

IN LONDON:

1921-1924

41

get their baggage passed and find trains. Their own prebooked sleeping compartments on the Train de luxe had them in Paris refreshed the next morning, and that night they were across the Channel and in London. Between arranging conferences with his other junior, Gordon Brown (who had made a mess of preparing the case”*), and Simon’s junior, Wilfred Barton, and visiting the BAWRA offices, Dixon showed Martin around London and took him on walks in the country. These had become obligatory at regular intervals to counteract his sedentary hours, and they were

long walks. Thus on 5 January they taxied to Marylebone Station, took the

Central Railway to Wendover and walked from there to Aylesbury, six miles. On 8 January they taxied to Liverpool Street Station and took the train to Chingford, walking from there by way of Epping forest to High Beech and Waltham Abbey, ten miles. ‘The air was pure and the ground frozen. A nice long walk.’ On such walks, which he would continue to take well into his seventies, Dixon would often converse with companions at a profound level, ‘yet afterwards recall every minor feature on the way’, Margaret Kitto later noticed. There were plays to be seen, and mostly disliked: The Importance of Being Earnest at the Haymarket on New Year’s Day (‘Acting not very good’), The Private Secretary at the Playhouse on 3 January (‘poor Opera Bouffe’), Catherine at the Gaiety on 10 January starring José Collins (‘a

vulgar Jewess who posed as Catherine the Great of Russia. Real rubbish

badly done’), Fay Compton at the Queen’s in The Little Minister on 16 January (‘a poor play by Barrie’), and numerous others fortunately including The Eternal Spring at the Royalty with Lilian Braithwaite on 9 February (‘Perhaps the best play we have seen’). Curiously he attended few plays of quality, preferring to see the most popular plays, which predictably he detested. On 21 January, the same day the British Conservative Government was defeated by 72 votes, Australian Prime Minister Stanley Melbourne Bruce hosted a reception at Wembley to which Dixon was invited. Sir Joseph Cook, Australian High Commissioner and former Prime Minister, was there along with John McWhae the Victorian Agent-General whom

Dixon knew from the previous trip and who introduced him to the host.

The next day Ramsay MacDonald became Britain’s first Labour Prime Minister but Dixon’s diary ignores the event. Instead Dixon reported a sitting of the Privy Council he attended. He wanted to establish a feel for the men

who would hear his case, and called in again on 24 January: ‘heard them

arguing [sic] a Canadian appeal. Their Lordships in my opinion did not go into it thoroughly’. This would be a lifelong complaint of his in regard to

42

OwEN

DIXON

Australian constitutional cases coming before the Board. On 25 January he watched Lord Haldane ceremonially sworn in as Labour’s Lord Chancellor

in the presence of the Lord Chief Justice, all the Lords Justices of Appeal,

the President of the Probate Division, and all the other judges in London at the time. He visited some of the Courts and went to the Privy Council again.

For variety, on 26 January he watched a soccer match (Huddersfield and Chelsea).

His first meeting with Sir John Simon, who was to lead for the Commonwealth and the CWC, did not take place until the very end of the month. Dixon

turned

up at Simon’s

chambers

for a conference

scheduled

for

4.30 p.m., Simon appeared at 5: ‘Knew nothing of the case and adjourned

at 6’ (31 January). Dixon, no doubt worried now, returned to the Goring, put on evening dress and went to dine by invitation with Sir Leslie Scott KC, MP (leading for the appellants) at the Inner Temple. The next day, 1 February, he went to Barton’s chambers and used his telephone to send a mes-

sage to Simon’s clerk who replied that ‘Sir John could not see us tonight’.

The case was three days from being heard.

Early the following morning Simon’s secretary rang, wanting to know

whether Dixon could be at Paddington at 4.10 p.m., to take the Bicester carriage attached to the Birmingham train, for a two-night stay in the coun-

try. They departed on time and by 5.15 were in Bicester, 15 miles north-east

of Oxford, whence a car drove them to Fritwell Manor, Simon’s house in Oxfordshire, built in 1611. Although they must have discussed the Skin

Wool case on the way up, Dixon would have realised by now that the MP for Spen Valley was far more interested in politics than law.

At the house they were welcomed by Simon’s second wife, Kathleen,

and the three of them had afternoon tea before repairing to the billiard room. Lady Simon, like her husband, was a keen player, and Dixon played too.

Then a friend turned up, Harold Maurice Abrahams, who had been called to the bar that year and was a champion Cambridge sprinter. He was in training for the 1924 Paris Olympics, where he would win the men’s 100 metres.

Abrahams’s sporting achievements would be celebrated fifty-seven years

later in the film Chariots of Fire. Before dining, Dixon was shown over the house and its antiquities, and after dinner there were more billiards before finally they started work on the case, into the mysteries of which he now

initiated Simon until 2 a.m. Breakfast was served at 9.15 a.m. followed by a leisurely walk around

the extensive, gabled, E-shaped Jacobean house, its warm Cotswold stone

enhanced by the low February sun. Then, it being Sunday, they strolled

across the park to the ancient church. A bit more work was done on the

3

KC IN Lonpon:

1921-1924

43

case, lunch taken, and ‘after lunch we played more billiards then worked again until about 6.30 p.m.’ By now it was time to put on formal dress and accompany Simon in the car to his college, All Souls, of which he was a Fellow. At dinner Dixon found himself seated next to W. S. Holdsworth,

Vinerian Professor in English Law, and author, to that date, of eight volumes of the History of English Law (which would ultimately run to seventeen volumes). Dixon thought highly of Holdsworth, who was revered by students and colleagues. He also got to know the youngest Fellow, 25-year-old (William) Keith Hancock, Rhodes Scholar for Victoria in 1922, and soon to take

up the chair of history at Adelaide before returning to Oxford as Professor

of Economic History. The dinner was not a drawn-out affair. Simon and

Dixon were home by 10.15 p.m. and worked on the case until 11.30—a case to be heard by the Privy Council the following morning, Monday, 4 February. Rising early, they were packed and off by 8.30 a.m. for Bicester, thence to London, breakfasting in the dining car as drizzle streaked the windows and the misty fields slipped by at 80 miles an hour. All the work during the voyage, the mass of materials assimilated and synthesised in order to convey to Simon, across a few hours’ concerted discussion, the essence of what

was required to win this case, must now pay off. Alighting at Paddington at

10 a.m., Dixon taxied to his hotel then went directly to the Privy Council

where their Lordships commenced the Skin Wool case at 10.50 a.m., Viscount Cave presiding, the others being Lords Buckmaster, Atkinson, Wrenbury and Darling. The quality of the Board was about as low as it might have been at any time in the century. Buckmaster was the only top-flight lawyer. Wrenbury, as Henry Burton Buckley, had written the standard commentary on the Companies Act but he was old and well past his best. Dixon at first had a high opinion of Buckmaster but it would fall over time and he would come to regard him as typical of good lawyers seduced by politics. Sir Leslie Scott, for the appellants, ‘opened well’ in Dixon’s sharp-eyed view, ‘but Buckmaster is against him Atkinson more or less with him’. He and Simon ‘lunched at the P.C.’, the case resumed, and at 4 p.m. it was adjourned. Dixon dined at the hotel and did more work in his room. At 10 the next morning he conferred for half an hour with Simon and Barton, and the case was called at 10.30 a.m., Scott continuing his argument as Dixon watched the judges: ‘The Board were quite favourable save Atkinson’. After lunch Scott resumed, finishing around 3 p.m., his junior Geoffrey Lawrence following. At 4 p.m. the Board adjourned to Thursday 7 February. On 6 Feb-

tuary Dixon and Martin lunched with Simon at the courts, together with

Albert Charles (later Lord) Clauson KC, a brilliant advocate in equity cases

44

OweN

DIXON

with a stylish presentation of argument. In 1925 Clauson would win a case

for which Dixon, in a few days’ time, would be seeking leave to appeal, the Hoysted case. When the Skin Wool case resumed, Lawrence completed his argument,

then Simon was heard until lunch. His presentation, though technically excellent, worried Dixon, who talked to him about it during the interval. Dixon’s concern was over Simon’s focus. Though Dixon regarded advocacy

as the soul of the law, he did not believe that the arguments of counsel should be the primary factor in the final judgment of the Court. ‘I cannot help feeling’, he wrote in 1959 to Lord Morton, that in litigation the order of importance is 1st the formal order 2d the reasons 3d the adequacy of the basal material and the use of it made by the reasons. The place which the arguments of counsel take should be auxiliary. The place given to them is in fact far too great. In the past I have read arguments before the Privy Council presented by Australian Counsel which they would not have dared to raise before us [the High Court].

Without telling Morton in so many words that he had always believed members of the Privy Council had inadequately prepared themselves in the basal details of Australian cases coming before them, he went on to make

his point by reference to the Skin Wool case.

I remember appearing with Sir John Simon in a case the legal principles governing [which] had never properly been explored either here or in London. Simon made a very good argument very clearly, so clearly that

a critical mind reflecting upon it might get to the unexplored foundations of the case and then heaven knew how we should get on. I rapidly explained this to Simon at the interval. He said ‘Well Buckmaster might do that but the others would just pursue the argument’. Skilfully he retraced his steps and put another argument and no one noticed. Well: I suppose that often happens any where but I have always tried to make an independent job of the case. Two years after this a Supreme Court judge insisted on re-examining the whole subject and ignored the Privy Council. Fortunately I was able to convince him the judgment as distinguished from the reasons was really right.?”

Dixon’s diary shows that after lunch on that 7 February their Lord-

ships stopped Simon hard upon his resuming the modified argument. They had heard enough. Judgment was reserved but the diary shows no qualms

about the outcome. On 24 March the High Court’s decision was affirmed: ‘Held, ... that suppliers of skin wool had no cause of action against the

3

KC

IN LONDON:

1921-1924

Commonwealth or the Central Wool Committee in respect of their allow the suppliers of skin wool to participate in the distribution of of the profits and the other profits which accrued’.”* In Melbourne Higgins issued a press statement as Chairman of the CWC and of

45

refusal to the share Sir John BAWRA:

The judgment, of course, is very satisfactory to the Central Wool Committee ... The amount ... involved in the litigation is approximately £1700 000 ... Throughout these long proceedings the Central Wool Committee has consulted its legal advisers at every stage, and, as heretofore, the committee will be guided by legal opinion as to the proper steps to be taken.??

For ‘legal opinion’ read ‘Owen Dixon’. Higgins’ statement clearly indicates where the pressure point in all this was. Dixon’s work in London was not yet done but he treated himself to a day with Russell Martin in Paris. On 11 February they travelled pullman to Dover, took the ferry boat, then Nord Express by its Calais line to Paris,

dining en route and taxiing to the Hétel Ste Anne before midnight. In the morning ‘Shaved and dressed (but did not bathe!) and ordered “petit dejeuner complét” which consisted of so little that I wondered what incomplét was like’. This was early, probably around 7 a.m. Before Martin was even dressed Dixon had walked the Avenue de !’Opéra, Rue de Rivoli, Rue St Honoré and Rue des Halles, and explored the Palais Royal. The rest of the principal sights they saw together. They had to be back in London the next day, 13 February, for Dixon had a 5.30 p.m. appointment for a conference at the Houses of Parliament with Sir Douglas Hogg, later Viscount Hailsham, Lord Chancellor. Hogg had served as Attorney-General under Bonar Law and Baldwin (1922-24)

but was now in Opposition, and Dixon had seen him previously, on 30 January. The subject of both conferences was the Hoysted land tax case which Dixon was trying to obtain leave to appeal. On 14 February he was successful, leave being granted on the basis of his arguments put to the Privy Council that morning, and almost two years later Clauson (opposed by Simon) would win the appeal.*° Dixon gives no details regarding Hogg’s involvement, and it was probably just provision of advice sought. Just before the case came on, Simon called in ‘and urged me to come to the English bar’. Whether Dixon seriously contemplated this he does not say, but looked at realistically the suggestion came ten years too late. His Australian practice was enormous and lucrative, and in London he would have had to begin over again (though he was given an assurance of earning £20000 a year). His and his family’s health in a smoggy city was perhaps another factor. There may also have been a nagging feeling that for reasons

46

OweEN

DIXON

unconnected with talent he would not succeed at the level to which he

aspired. He was well received as a visiting outsider but he could not be sure

that he would be accepted as an insider. He did not admire the London bar, however much he may have been tempted to stretch his wings there. He

lunched at the hotel, booked his passage with P&O from Marseilles, called

on McWhae and Scott, then settled up at the Goring. Before midnight he and Martin were back in Paris.

Dixon took a serious interest in the French courts, visiting the Palais de Justice on 15 February where he saw three Cours Civiles and the Cour

d’Appel. His interest in Roman law, and in French culture generally, was deepened at this time. He took the Metro to the Champs-Elysées where, at the Palais des Beaux-Arts, he saw the Exposition de la société des artistes indépendants, and he went to the Opéra for a performance of Gabriel Dupont’s Antar. With Martin he made excursions to Versailles and Fon-

tainebleau, watched plays at the Athenée and the Daunou, and visited the

Folies Bergéres (‘dreadful’), the Louvre, Jardin des Plantes, and the Bibliothéque Nationale. After a week in Paris (15-21 February) it was time to go home. In Marseilles they stayed at the Hotel des Noailles, then boarded the ship. Dixon liked to read in the smoking room, a kind of shipboard gentlemen’s club, but was ‘horrified to find women and Italians with a gramophone’ in

there, where the cacophany continued day after day. It was too cold to sit

outside on the deck chairs and he was forced to read in his cabin. A garrulous gang of forward ladies by the name of Sloman pressured him to join them in bridge. What with them, the gramophone, the jazz band and the ‘raging’

fancy dress balls, the voyage home would have been a nightmare had it not

been for the peace of his cabin and the books on Roman law he had bought at Maxwells in London. These he studied throughout the journey, interspersed with recent issues of L’Avocat, Anatole France’s Thais, the Oedipus Tyrannus of Sophocles, ‘yarning to Dr Rosenberg’, and helping to organise the sports, which he enjoyed, along with ‘a “bachelors dinner” which excited envy and malice’ (6 March).

At 11 a.m. on 22 March they docked at Outer Harbour, north of Adelaide. The diary ends mid-sentence—‘Got thro customs and drove with’. One

can guess at the absent

words:

‘Young

[Vice-Chairman,

CWC],

to

lunch’, a lunch for which Young would no doubt have paid, a small gesture

of gratitude on behalf of a committee justifiably delighted with the performance of its legal counsel.

4 THE MATURE BARRISTER AND ACTING JUSTICE 1924-1929 DIXON’S

SUCCESSES

AT

the Privy Council sealed his reputation at the

Melbourne bar. Arthur Dean, admitted to practise in 1919, noted that in these years Dixon achieved

a quite remarkable

standing

in the community,

became

the

adviser of public men, and was so outstanding a man that the Bar itself took pride in his reputation and shared the general esteem. He was the final and accepted arbiter on all problems between Counsel and Counsel or between Counsel and client. He was the very epitome of wisdom to guide us all."

Yet in pushing himself close to breaking point he seemed to some the epitome of unwisdom, ‘a probable tragedy’,? as his cases became ever more numerous.’ On 8 June 1926, at the age of sixty-six, Theyre 4 Beckett Weigall, Acting Justice of the Supreme Court of Victoria, died of pneumonia. Four years earlier, at the wedding of his daughter Joan to Daryl Lindsay, he had told Lindsay, ‘Remember that name Dixon—the future of law in this country

is in his hands’.‘ Appointed Acting Justice in 1923 when Mr Justice Cussen

was

abroad,

Weigall’s commission

justices had taken leave. Now

had

been

renewed

annually

as other

the press speculated on his replacement:

It is suggested in Selborne Chambers that there would be some difficulty in inducing a suitable man to act temporarily for the remaining portion of the year. The inducement

to break with his practice would

sufficient ... The salary of a puisne judge is £2500 a year.‘

not be

48

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DIXON

That went to the heart of the issue. Dixon, for instance, was reputed to be

earning over £10000 a year. Yet, as he later said, he now stepped forward ‘as a volunteer and in effect proposed myself’.6 The bar, he recalled, ‘were

good enough to gather together to compliment me, and I remember saying, having practised a great deal in this [High] Court, that it would do me a

great deal of good to go into the purer atmosphere of non-Federal law, and it did’.”

This seems an inadequate explanation. Though intensely interested in

criminal law and criminal psychology, like Weigall he disliked the idea of actually sitting on criminal cases (Weigall had been excused them). Like

Weigall he disapproved of the death penalty. “We cannot deal in human life’, he would later tell associates. He believed it was immoral to do so. He believed, too, that the effect on those who pronounced or gave effect to the death penalty was often ruinous. One ought not, and could not humanly,

place on a judge the task of pronouncing a death sentence, and the like went

for gaolers, prison governors and so on.® The main reason why he volunteered for the acting justiceship, he would tell another associate, was ‘to

find out whether he would enjoy judicial work without having to make an

irrevocable commitment. He did not enjoy the experience’.? Frederic Eggleston, Victorian Attorney-General, was keen to make the

appointment but the Government, relying on wavering independents, was

repeatedly under threat in Parliament and timing was important. ‘Now that the no-confidence motion is defeated’, Eggleston wrote to Dixon on 15 July,

‘Lam in position to make that appointment we discussed . . . P.S. 1 want to fix it up before a fresh crisis develops’.!° The commission went through on 21 July, and Dixon took his seat the following day.'' Among the congratulatory messages were three from the High Court where Dixon’s advocacy

had long been greatly admired—from Mr Justice Isaacs (‘It is of course a sacrifice, but doubtless at the same time only a preliminary canter before the real race’), Mr Justice Rich, alluding to Dixon’s preparation at this time of a submission, on behalf of the Victorian bar, to federal Cabinet on the salaries of federal judges (‘I regarded you as my best argument for a rise in salary & status—Alas!’), and the Court’s individualist, Mr Justice Starke (‘Anyhow

don’t “peg out a claim” on the Supreme Court for Crime & Divorce are not worthy of your talents & I hope some day to see you in this Court & the sooner the better’).'2 A school friend wrote, ‘If poor old Coutie were alive|

guess he would be proud that one of his boys had risen so high while at the

same time being so popular’. Even a merely statistical analysis of Dixon’s work as Acting Justice is instructive. Bearing in mind that not every case was reported, if one looks

first at the number of reported cases heard by a single judge during Dixon’s

4

MATURE

BARRISTER,

ACTING

JUSTICE:

1924-1929

49

time with the Supreme Court, from 21 July 1926 to the end of the year, the figures are Irvine (Chief Justice) 2, Schutt 5, Mann

3, McArthur 5, Mac-

farlan 5, and Dixon 16 (Cussen was on leave preparing the 1929 consolidation of the Victorian statutes). Of reported cases in this period heard by a Full Court of three, Irvine sat on 11, Schutt 5, Mann 6, McArthur 4, Macfarlan 3, Dixon 4, and of the 4 on which Dixon sat he wrote and read the

judgments in 3. He seems to have been heavily worked in comparison with the other judges apart from Irvine, though there were probably more reserved and reported judgments in the areas of work that most occupied Dixon than in others (he did not sit often if at all in divorce, or the practice court, though he sat on criminal cases'*). Of reported cases heard by a single

judge, Irvine reserved judgment in 1 of 2, Schutt in 2 of 5, Mann in none of 3, McArthur in 2 of 5, Macfarlan in 2 of 5, and Dixon in 13 of 16. Of the

total of cases heard by a single judge apart from Dixon, judgment was reserved in 7 out of 20 cases or 35 per cent of them; for Dixon the figure is 81 per cent.’ True, he was new to the Court, but his rate increased over the period rather than diminishing. Reserved judgments should be seen as a

feature of his judicial work at this time as they were of his later judicial

career, and say something for his intellectual rigour. A judge who heard a case, he would later say, had a choice: to decide it, or decide it rightly. The practice in the English courts of giving ex tempore judgments in complex cases dismayed him—no one could be as confident as that about resolving

such issues, and he suspected some of them were a bit lazy.'* Across a wide range of cases, several of his judgments stand out for their high quality and legal interest (hundreds of his judgments as a member of the High Court are of similar quality, far more than can be mentioned in a work

of this kind).!7 That in McKenzie

v McDonald

(1927) shows his

style rising to the occasion provided by a case of strong human interest,

involving breach of duty on the part of a widow’s fiduciary agent. He begins, as he so often did, by systematically setting out the basal facts. Many judges tend to proceed more directly than Dixon to the arguments of counsel, but he firmly believed that the first and most difficult thing a judge has to do is to ascertain the facts (‘I have always thought that clear definitions of the

exact question to be tried and decided is a most important factor’, he wrote

to a correspondent years later'*), and this frequently entailed a long written judgment. Dixon often incorporated slabs of reported dialogue from the transcript of evidence, reanimating the bare facts. Whether or not it was his intention, this makes the judgment more readable and engaging. Style serves to give logic its maximum effect. A good example of this is his 1936 judgment in Sodeman v The King—by contrast the judgments of Latham, Starke

and Evatt in that case read less compellingly.”

50

OWEN

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During these five months he established a judicial reputation that was well described by the barrister V.G. Braham: ‘While you were on the Supreme Court Bench we all regarded you as an ideal judge in every way, having all those qualities that a judge should possess and none of those

failings’.?° Yet at the end of the year, on the resignation of Mr Justice Schutt, he declined the offer of permanent appointment to the same bench, having

‘made up my mind that I would never be a judge’.?! He suggested Charles Lowe for the position.?? Dixon had been on the Committee of Counsel since 1 March 1916 and was elected to it annually until his appointment to the High Court in 1929. The minutes of the meetings he attended show him using his membership to

enhance the bar’s standards. There were eight on the committee and they

acted as guardians of traditional standards, a board of discipline, and a source

of advice and guidance. During World War I they protected the interests of barristers at the front.” As previously explained, until 1920 Dixon was ‘the

member called under ten years’ of practice, sitting with eminent men. In 1916

they included Sir William Irvine KC, formerly Premier of Victoria and from 1918 its Chief Justice; Hayden Starke, four years away from appointment to the High Court; William Schutt and Frederick Mann, each three years from appointment to the Supreme Court of Victoria; and Theyre a Beckett Weigall KC. John Latham and Robert Menzies were on the Committee in the 1920s. Most members were destined for higher things. Latham already had significant achievements behind him. During the latter part of World War I he had headed Naval Intelligence, and following the armistice had been a member of the Australian delegation to the Versailles Peace Conference. A few months after his second return from London Dixon had backed

Latham in a concerted assault on lax bar standards. At a general meeting of counsel on 30 October 1924 Latham took the floor and spoke of reports that counsel, whom he refrained from naming, had been appearing in court without holding briefs, others without fees marked on briefs, and yet others

(probably at the solicitor’s request) collecting their own and the solicitor’s

fees directly from clients. If these breaches of conduct did not cease at once, Latham warned, the committee would take strong action—striking them from the roll was clearly contemplated. Dixon, as deputy chairman, supported Latham’s remarks, asking the bar for its full support.” In 1926, with Dixon as chairman now, the committee resolved ‘that it is undesirable as a general rule for members of the Bar to furnish signed articles or letters or opinions (whether by way of interview or otherwise) to the public press’. If such articles were to appear, other counsel should be supplied with copies.* Press statements and interviews, he obviously thought, compromised the bar’s detachment and involved self-promotion.

4

MATUuRE

BARRISTER,

ACTING

JUSTICE:

1924-1929

51

‘Whenever he doubted the propriety of contemplated action of his own he referred the matter to the Committee. For instance, in late 1927, with

Wilbur Ham in the chair,

-Mr Dixon placed the following facts before the Committee and asked for a ruling:— He had advised A as to the correctness of a judgment given in an action between A and B by the Supreme Court of South Australia. Later B gave Mr Dixon a general retainer and A obtained special leave to appeal to the High Court of Australia. A and B now tendered Mr Dixon briefs to appear on the appeal which had been removed for hearing from South

Australia to Victoria. The Committee ruled that the fact that Mr Dixon

had given an opinion to A did not disentitle him from accepting a general

retainer from B. That he could not accept a brief on the appeal against B. That he could accept a brief on the appeal for B if he were not embarrassed as the result of advising A.?6

The relevant volume of Dixon’s vast output of opinions seems not to have survived,”’ but given the dates and lead times involved, this would refer to Adelaide Corporation v Australasian Performing Right Association Ltd,

heard by the High Court in Melbourne on 14-15 March 1928.78 ‘A’ is the Corporation of the City of Adelaide, ‘B’ the Australasian Performing Right

Association Ltd. Dixon followed the Committee of Counsel’s advice ‘That

he could accept a brief on the appeal for B if he were not embarrassed as the result of advising A’, for he represented the Australasian Performing Right Association Ltd, the respondent in the appeal, losing against the Corporation (represented by Robert Menzies, also on the Committee of Counsel) which

had successfully followed his advice to appeal. There was no foregone

conclusion, Knox and Isaacs dissenting from the decision of Higgins, Gavan Duffy and Starke. A year later Dixon again sought advice from the Committee, this time from the chair, probably on his own behalf though possibly for a colleague: Mr Dixon of counsel submitted the following facts for consideration:—

A general retainer ‘In all courts and jurisdictions’ was accepted by counsel from A. Subsequently B tendered a special retainer to appear before the Railways Standing Committee in an inquiry in which A was interested. Later still A tendered a special retainer to appear in the same inquiry.

It was resolved that the general retainer did not apply to the said

inquiry.”

52

OWEN

DIXON

The minutes of the Committee of Counsel’s meetings reveal that Dixon was exceptional in using it as a check on his professional conduct. Few if any

others appear to have done so. Perhaps the most striking characteristic of Dixon, aside from the clarity of his perceptions, was his complete integrity. Meanwhile in October 1927 he had placed before the Committee a letter from H. S. Nicholas, who, as one of opposing counsel, had sailed for

England with Dixon and Martin on the Orsova in 1923. Nicholas was now

assisting the Royal Commission on the Constitution of the Commonwealth (chaired by John Peden KC), and his letter invited Dixon and members of the

Committee to give evidence before the Commission on how well the Con-

stitution was working in its various sections and how it might be improved. A subcommittee consisting of Dixon, Wilbur Ham and Robert Menzies was

established to prepare a submission on the Committee’s behalf.*° Appointed on 18 August 1927, the Royal Commission’s investigation was prompted

by new constitutional circumstances including the Commonwealth-State Financial Agreement of 1928, the strength of the Western Australian seces-

sionist movement, and shifts in the balance of Commonwealth and State powers flowing from such cases as the Engineers’ Case (1920) and W. &

A. McArthur v Queensland (1920).3!

Most of the work of preparing the Committee of Counsel’s memorandum of evidence fell to Dixon—certainly Robert Menzies, preoccupied

with launching his political career, contributed little.*? This remarkable document foreshadows significant judgments of Dixon’s. The memorandum of evidence he read to the Commissioners on 13 December 1927 takes up

over thirteen large, double-column pages, followed by over five pages of

detailed questioning, and was prepared and written in a hectic eight weeks.?? It has been analysed in detail.** Although Dixon, like most people

then, thought Australia would eventually move to a more centralised form of government, he stressed in his concluding sentence that ‘Looked at as a whole the Constitution seems to have worked well enough as a federal instrument’.>5

In relation to section 51 (v), the power of Parliament to legislate with

respect to ‘Postal, telegraphic, telephonic, and other like services’, he argued

that ‘like services’ ‘would seem to be means for enabling one person to

communicate a private message to another. To this entertainment by broadcasting is most unlike’. Here he anticipates his dissenting judgment in R v Brislan (1935).°° He argued that section 92 of the Constitution, which provides that ‘trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free’, and is so general as to be open to wide interpretation, would be better under-

stood if it ran ‘the States shall not by any discriminatory law or executive act

4

MATURE

BARRISTER,

ACTING

JUSTICE:

1924-1929

53

impair the freedom of trade, commerce and intercourse among the States

and the Territories of the Commonwealth’. That would also accord with the (then current) view that section 92 bound the States but not the Common-

wealth.*” Elsewhere he argued for a strict interpretation of the doctrine of the separation of powers, and referred to the Commonwealth Court of Conciliation and Arbitration, which had been vested with non-judicial (arbitral) as well as judicial powers. This, he stated, ‘might lead to difficulties . . . but no one has hitherto been courageous enough to pursue this argument’. In Dixon’s view the necessity of preserving a completely independent judiciary in a Federal system may be said to be absolute . .. Whether it is possible or not to confer non-judicial power upon the High Court or any other Federal court created pursuant to section 71 or section 72 is by no means clear, but we are of opinion that it should not be possible to confer such power.**

Here the decision (upheld by the Privy Council) in the Boilermakers’ Case is anticipated by almost thirty years.>” A later letter of Dixon’s further clarifies his position on this question in 1926-27. Writing to Lord Simonds (Lord Chancellor, 1951-54) in 1957, he pointed out that in 1926 he had warned Latham on the matter—as federal Attorney-General Latham was the author of the amended Conciliation and Arbitration Act of 1926. ‘But I don’t think he really understood and of course as it was a political matter with him his legal perception was not at its highest point.’° (Predictably, Latham failed in 1926 to entice Dixon to take the position of Chief Judge on the Commonwealth Court of Conciliation and Arbitration where he had appeared on legal questions though not on questions of wages and conditions.) In 1935 Latham would return to the law as Chief Justice of the High Court. Dixon thought politics unfitted a man for judicial office. When Robert Menzies entered the Victorian Legislative Council in 1928 Dixon told him, only half-jokingly, “Well, Menzies, it is quite easy, I am told, to convert a good lawyer into a good politician. But reconversion is impossible’.*! On 13 January 1929 Mr Justice Higgins died at the age of seventyseven and ten days later Dixon received a letter from Attorney-General Latham: My dear Dixon,

I wish to know whether you would be prepared to accept a seat upon the High Court bench if you were asked to do so. I have not offered the position to anyone else.

54

OweN

DIXON

I sincerely hope that your answer will be in the affirmative. I need not emphasise to you the importance, the responsibility, or the interest of the work. You would render a service to the people of Australia by undertaking it. I am sure that your appointment would be welcomed with unqualified approval, alike by the profession and the public.

It is because I know that you possess the necessary qualities of character knowledge and temperament that I have pleasure in writing this letter and in awaiting what I hope will be a favourable reply. Yours

J G Latham”

Though gratifying, this did not take Dixon completely by surprise, because on the day it was written he had lunched with Sir John Higgins (no relation to the deceased High Court Justice) at the Melbourne Club where, according to Dixon’s incomplete 1929 diary, ‘Sir John raised the question whether if I was offered a position on the HCA I would take it. I said I thought so. He remonstrated: hoped that I would secure a C.J. ship’. Still, Dixon clearly did not know the offer was coming, for later that afternoon he agreed to travel to London to argue a case for which the Shell Company had just won leave to appeal to the Privy Council.*? When he received Latham’s letter he talked it over with Alice, and with his father, who expressed discontent at the idea:

‘You know very well that you would be much happier at the Bar. I never

thought much of judges anyhow’.“ According to his diary Dixon, however, ‘provisionally decided to accept’ (24 January), despite ‘all the unwillingness

on my part to become a judge’,** and next morning had himself photographed in preparation for the announcement, which was made by Prime

Minister Bruce on 29 January.** The appointment, carrying a salary of £3000, was made on 4 February and on 12 February he was sworn in, at

forty-two the youngest on the bench. Latham told Zelman Cowen that his success in persuading Dixon to accept the seat ‘was his finest achievement as Attorney-General’.*” To balance his heavy workload Dixon had established regular patterns of relaxation. He still rode, and since 1927 had belonged to the Wallaby Club, a group of men who took leisurely walks of up to 20 miles through the

countryside for health, companionship and conversation. Until the 1950s

they wore suits on these excursions. Members included Sir John Monash, Sir Robert Garran the Commonwealth Solicitor-General, David Rivett of

CSIR, and others prominent in public affairs. Mr Justice Higgins had been a member.** Dixon also belonged to the Melbourne Club, the Australian

Club (Melbourne), the Bohemians, the Victoria Racing Club, the Riversdale Golf Club, and the Australian Institute of International Affairs.*?

4

MATURE

BARRISTER,

ACTING

JUSTICE:

1924-1929

55

Evening hours were shared with a growing family of which he would now see far less because the Court, though based in Melbourne, sat in all State capitals. Dixon made time for his children between their dinner and bedtime, and on weekends, reading to them and accompanying them on

bicycle rides about the streets and on walks to the local sweets shop. His

second son, Edward Owen (‘Ted’), had been born on 26 April 1924, his first daughter, Elizabeth Brooksbank Owen (‘Betty’ or ‘Bet’), on 5 November

1928. Franklin, almost seven and obviously intelligent, was asthmatic.

The children’s uncles (Alice’s four brothers) visited the Dixons occasionally. One of them, Alan Brooksbank, a returned soldier, now became Dixon’s first associate (personal assistant). Like some other associ-

ates of High Court Justices in the 1920s he was not a lawyer. He had rejected

his clergyman father’s creed, perhaps impressed by Dixon’s sceptical cast of

mind, but otherwise he had little in common with his brother-in-law. In 1969 he sent Dixon a ‘philosophical essay’ with a covering note saying he was ‘grateful for the seeds you planted’. After reading Darwin’s Origin of Species, he recalled, in a separate note not addressed to Dixon, I felt much freer to discuss religion with Owen and other matters and am very grateful to him for his comments in 1923-29 and as his Associate from 1929 onwards for referring me to authoritative books. I am greatly indebted to him for opening my mind to many other subjects, and not limiting my freedom to believe what I wanted to.*°

Dixon, however, was not one of those who wished not to believe in God. He was perfectly happy for his wife to maintain her religious views, and it is interesting that the Agamemnon, a work steeped in religious feeling,

was his favourite. He found aggressive atheists distasteful. It was simply a matter of his being unable to satisfy himself of the validity of religious pro-

positions. This openness of mind was precisely what enabled him to open

the minds of others. Indeed, most who became acquainted with him felt that

their minds had been expanded by the contact. Margaret Connor’s, Sir Paul Hasluck’s and Edmund Jowett’s experiences are typical and have been quoted in the Preface; others may readily be cited.*! Dixon’s associate in the Supreme Court had been John Oldham, a lawyer who, before a nervous breakdown destroyed his career, would hold several responsible positions in the diplomatic service. Dixon no doubt appointed Brooksbank partly out of a sense of family dury—many returned servicemen were having difficulty finding jobs. It was typical of him to do

so, and he would keep him for ten years.

5 A RELUCTANT JUSTICE ON THE HIGH COURT 1929-1939 AS HE SURELY KNEW, the Court Dixon was joining as its youngest member

was not a happy place. It was split by conflicting personalities—‘everybody

seemed to dislike everybody else’.! The 65-year-old Chief Justice, Sir Adrian Knox, appointed in 1919, was as brusque in manner as he was short in his judgments, an ‘intellectual man without any intellectual interests’ in Dixon’s

words, refusing ‘to have anything to do with a judgment I wrote, on the

ground that it sounded too philosophical for him’? Sir Isaac Isaacs, at seventy-three, who would briefly succeed Knox as Chief Justice in 1930 and who had sat on the Court since 1906, was strong-willed, egotistical and dogmatic, with few close friends outside Freemasonry; hardly a born leader and binder of men. Though a forceful speaker in his younger days in the Victorian and federal parliaments, his style had become florid and verbose—Dixon once described a speech of his as ‘a moving and meaningless flow of abstract nouns’. Sir Frank Gavan Duffy, seventy-six, who would succeed Isaacs as Chief Justice in 1931 and who had sat on the Court since 1913, ‘never liked

sitting on the bench and he did as little as he thought was necessary’, Dixon

observed.* Charles Powers, seventy-five, like Gavan Duffy appointed in 1913, would retire during 1929 after an undistinguished record. (There was a legal joke: matters which came before the Court were sometimes said to be ultra vires—beyond Powers.) The urbane George Rich, sixty-five, also

appointed in 1913, had ability but lacked energy, tending to attach his name

to the judgments of others. He would find Dixon’s so persuasive he would take the logical course and often ask Dixon to write judgments for him. Last there was the self-contained, handsome, arrogant Hayden Starke, fifty-seven, 56

5

RELUCTANT

JUSTICE

ON

THE HIGH

Court:

1929-1939

57

appointed in 1920 and married to Gavan Duffy’s niece. Starke’s conservatism and the prickly Isaacs’s radicalism put them at odds, and in any case

Starke’s difficult, forceful personality and acute sense of honour resulted in

an isolation of his own making and choice. He could be very very rude, but

his concise and lucid judgments were an ornament to the Court. How did these ill-matched men react to the arrival of a prodigy in their

midst? They welcomed him as a breath of fresh air. Starke had written to Dixon in 1926 of his ‘hope to see you in this Court & the sooner the better’.

Gavan Duffy had known and liked him as a friend of the family since 1910, Rich admired him immensely and had felt a paternal fondness for him over

a number of years, and Isaacs too liked him. It was hard to dislike him: he was good-humoured, easy-going yet hard-working, immensely capable, not political or tendentious. His integrity was beyond doubt. In fact he would become the Court’s fulcrum, the only Justice to whom all the others consistently talked. His judgments, even in dissent, would carry weight because of their sheer intellectual power, more evident now than in his Supreme Court days. Dixon often circulated an important judgment as soon as he had drafted it, and through the 1930s he would regularly carry others along with him, not just the unenergetic Rich and the averagely talented McTiernan but Evatt too. By contrast, Starke’s relationship with the others was so bad they often did not know the purport of his judgment until it was about to be delivered. And it has to be said that none of the Chief Justices under whom Dixon served had the necessary will or ability adequately to manage his men. One of Dixon’s first judgments for the High Court was written for a case on which he had not even sat. He wrote it, on request, for Sir George Rich and it has that rare quality, humour, though it is not so rare in Dixon’s judgments. The point at issue was whether school teachers comprised an

‘industry’ and whether their dispute with the State of Victoria was an ‘indus-

trial dispute’ within the meaning of the Constitution. Dixon/Rich decided

that they were not an industry. The judgment began:

This case evoked another of the often repeated and always unsuccessful attempts to determine the connotation of the vague and indeterminate words ‘industrial dispute.’ A review of the many disquisitions of each of the Justices past and present of this Court recalls an observation made by Sir Frederick Pollock in an essay not inappropriately entitled ‘Mystic Experience and Philosophy,’ in his book called also with some appropriateness Outside the Law: ‘The only inference we can draw is that every one of the seers expressed his insight, naturally and inevitably, in a form

conditioned by the terms and symbols which were familiar to him.’ To

borrow an apt phrase from Professor Gilbert Murray, ‘they are all trying

58

OweEN

DIXON

to say the same ineffable thing. Whoever is convinced that any one form is better than the rest must base his conviction on some independent external ground. The mystics themselves are not in accord on the question whether any such grounds can be assigned.Ӣ

The pleasure of composing such paragraphs must have been comparatively slight, however, compared with that of advancing constitutional law in significant ways, as he did from the first, for instance in Ex parte Nelson (1929) in which he produced the classic exposition of constitutional law on the limits inter se of State and Commonwealth power.’ Another relatively early judgment, in Trethowan’s Case (1931), where Dixon considered whether amendments to the New South Wales Constitution passed by the previous Nationalist Government could prevent the Labor Government under Jack Lang from abolishing the Upper House without holding a referendum on the matter, analysed questions of parliamentary sovereignty at a depth never before attempted. He soon realised, however, that he had committed a serious error in

joining a bench vitiated by mutual antagonisms and limited by inequality of talents. Things were not about to improve. Powers resigned in July 1929 to be followed by Chief Justice Knox in March 1930. Isaacs became Chief Justice—he would leave in 1931 to become Governor-General, replaced as Chief Justice by Gavan Duffy. No new appointment would be made at that time to the Court (a concession to Depression stringencies). In extraordinary circumstances, two politicians, Herbert Vere Evatt and Edward McTiernan, were appointed in late 1930 to replace Knox and Powers. With Labor Prime

Minister James Scullin and his Attorney-General Frank Brennan out of the

country (they were returning from the Imperial Conference), the Labor Caucus took it on itself to instruct Cabinet to make the appointments. Evatt (appointed 19 December) had been a Labor Member of Parliament in New South Wales, McTiernan (appointed 20 December) was the federal Member for Parkes at the time, having earlier sat in the New South Wales Parliament

and served twice as attorney-general. Believing the appointments would

lower respect for the Court, Scullin and Brennan vehemently opposed them, but from afar and ineffectually. Public criticism was intense, particularly in the case of McTiernan who had no reputation at the bar, unlike Evatt, at thirty-six the youngest ever appointment to the High Court and widely

acknowledged as having real talent. In Who’s Who in Australia, McTiernan

boasted of his appointment as ‘Papal Chamberlain to H. H. Pope Pius XI. 1928’. One can imagine Dixon’s view of that. When the new appointments were announced Dixon wished to resign but Starke persuaded him not to do so.” The new men were begrudgingly accommodated within an already

5

RELUCTANT

JUSTICE

ON

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HIGH

CourT:

1929-1939

59

uncongenial club. Starke treated them with contempt, prompting Evatt (as irascible as Starke) to complain to Chief Justice Sir John Latham in 1936 that ‘Starke’s behaviour as presiding Justice—and I refer to McTiernan & myself—has been disgraceful. It is only one’s sense of duty to the Court that prevents some public scandal’.!° Later Starke would cease all communication

with them, Dixon having to act as go-between. Dixon never much admired

Evatt, seeing him as an essentially political judge and as dishonest,'! though he forced himself to get along with him. McTiernan he thought lazy and

unqualified, though the two would sometimes go out together to tea or for

a walk. In 1932, with unemployment over 30 per cent, the Government of New South Wales under Labor populist and States’ righter Jack Lang (‘Greater than Lenin’ as his ardent followers and daubers of political graffiti described him) stepped up its war against ‘the money ring’. The previous year it had failed to make interest payments on State loans, which it was bound to make year by year under the Commonwealth-State Financial Agreement

signed in 1928. The federal Labor Government under Scullin had lamely

covered the debt. Since then there had been a change of government in Canberra. The new United Australia Party Government under Joseph Lyons determined to enforce the Financial Agreement, already incorporated into the Constitution as section 105A, sub-section 3 of which provided that ‘The Parliament may make laws for the carrying out by the parties thereto of any such agreement’. In early 1932 the Parliament passed the Financial Agree-

ments Enforcement Act, and in reaction the Lang Government, which had

no more intention of paying interest that year than it had in the last, withdrew over £1 million in cash from banks in Sydney. As tensions mounted there were large pro- and anti-Lang demonstrations and the atmosphere became revolutionary. Wild incidents occurred—on 19 March Lang was to open the new Sydney Harbour Bridge but the ribbon was slashed by a

mounted member of the pseudo-Fascist New Guard, F. E. de Groot. In April

the federal Government, presuming the Lang Government would default on its interest payments, made good the default, recouping its losses by ‘garnishee’ proceedings against the revenues of New South Wales. Public debate was strident and a ‘Red Army’ was reportedly ready to defend the Premier and his Government, which conservatives were insisting be sacked

by the Governor. In this atmosphere New South Wales challenged the rel-

evant federal legislation in the High Court.'?

The case was heard through the second half of March and early April,

and judgment given in Sydney on 21 April. Gavan

Duffy and Evatt, both

States’ righters, dissented, the majority (including Labor appointee McTiernan) pronouncing the 1932 legislation valid and the 1928 agreement

60

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enforceable. Dixon’s judgment, carrying Rich’s name too, is noteworthy for its appeal to first principles and its simple logic. Barely a case is mentioned.'3 During the hearing there had been debate over the meaning of the phrase ‘carrying out’ in sub-section 3 of section 1054. Dixon thought, logically, that the words ‘carrying out’ cannot mean creating or establishing the agreement, but must mean acting under it... In our opinion it enables the Parliament to enforce performance by the States of their obligations under the Agreement, and it authorizes the main provision of the Financial Agreements Enforcement Act 1932.

The federal Government had acted on the presumption that New South Wales had defaulted on its debt repayments, and Dixon addressed this too, taking note of the passions of the moment. The legislation is brought into operation upon a reasonable or perhaps vehement presumption of default which may, nevertheless, conceivably be wrong. The State may at once apply on three days’ notice for a declaration that it is wrong, and, if the State does not so apply, the Commonwealth must apply within two months for a declaration that it is right. The question is whether a law for the immediate sequestration of the State’s revenue upon a strong presumption of default, subject to the State’s right to apply to the Court to displace the sequestration, can be considered as an exercise of the power as we have construed it. We have come to the conclusion that this question should be answered in the affirmative. Strong as the measure is, it may be fairly regarded in the conditions which at present prevail, and which we are entitled judicially to notice, as reasonably necessary to ensure payment of a liability if and when judicially established.'5

The references to the fraught political atmosphere are interesting. Many judges would prefer not to acknowledge such pressures, but Dixon accepted that they had a legitimate influence on this particular aspect of the judgment, which in its essentials is nevertheless based on logic and not political

expediency. Still, he was accused of a conflict of interest, having as a barris-

ter advised the Commonwealth over the drafting of the Financial Agreement.'¢ Personally he was contemptuous of the Lang Government, regarding it as dangerous and thoroughly corrupt, and Evatt and McTiernan as forever stigmatised by their formerly intimate association with it. His attitude to economics does not seem to have been very precise—it was not a field in which he felt confident. But he was a gold-standard man, a hallmark of economic conservatism, and a (probably early) reader of John Maynard

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Keynes. (Keynes later backed a virtual return to the gold standard, though he had been against this in 1925.)'” Notwithstanding the Court’s low morale, and his own, Dixon’s intellectual contributions to its decisions were important from the outset, not

just in the area of constitutional law. Some of his judgments from the early and middle 1930s rank among his most brilliant, influencing the common-

law world in profound ways. For instance, he wrote three judgments in this period that contributed very significantly to the understanding of the principles of estoppel.'* His 1933 judgment in McDonald v Dennys Lascelles Ltd, which concerned the right to damages of an innocent party to a contract for the sale of land following the contract’s termination by an accepted repudiation, was later adopted by the House of Lords."® And his judgment

in Birmingham v Renfrew (1937) 57 CLR 666 on the position of the

survivor of persons who make mutual wills has been frequently cited in the English courts. Most of the 1930s judgments noticed below are constitutional, but his contributions to the general law would be profound throughout his judicial career. By the end of 1934, and probably much earlier, he was looking for an opportunity to resign, though it no doubt occurred to him that from the position of Chief Justice it might be easier to improve the Court’s tone and

harmonise some of the discord. First, though, the octogenarian Frank Gavan Duffy, who had succeeded Isaacs in early 1931 on a ‘Depression’ Court of six rather than seven members, would have to retire and the right appointment be made. That would not be Rich, nor would it be Starke, and as for

Dixon no member of the Court had ever been appointed Chief Justice over another, though that did not mean it could not happen. The next Chief

Justice, however, was destined to come from outside. In 1934 John Latham resigned as Lyons’s Attorney-General—or, as Sir John Higgins (who was

close to members of Cabinet) told Dixon, ‘was dragged screaming from the perch’°—in favour of Robert Menzies, who took Latham’s seat, moving from Victorian to federal politics. This move, in the period leading up to the

1934 elections, was probably engineered by a small group of people concerned at Latham’s lack of popular appeal, and with the intention of positioning Menzies to take over from Lyons after a short time. The circumstances are obscure. Latham returned to the bar, with tacit assurances, it was said, that Gavan Duffy’s seat would soon be his.”! On the other hand,

should the Lyons Government fall at the next elections, in 1937 or earlier, and Gavan

Duffy not retire until after that, then Evatt would probably be

Labor’s choice for the position. These were among Dixon’s and Evatt’s preoccupations through the summer of 1934-35.

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During the 1930s the Dixons regularly spent summer vacations at the small town of Toolangi, on the edge of the Great Divide north-east of Melbourne. They went for bicycle rides and long walks along the bush tracks, interspersed with reading around the fire at the Toolangi Hotel, but Dixon

kept in touch with developments. In Sydney in early 1935 there was an appli-

cation before Evatt to commit the Sydney Morning Herald for contempt over criticism of the Court’s role in the continuing saga of Egon Kisch, a visiting Comintern agent from Czechoslovakia whom the Government wished to expel. Dixon wrote to Evatt from Toolangi about the case on 16 January,

and after receiving a copy of the judgment he congratulated Evatt for

dismissing the application. ‘The course you took is calculated to enhance the Court’s reputation in a substantial degree’, Dixon told him, adding that the tone of detachment which the judgment has and the entire absence of any spirit of retaliation . .. does much more to strengthen the authority of the Court as an instrument of justice, than the imposition of any deterrent punishment, which might perhaps operate to suppress the publication of criticism in the future but would promote a real hostility to

the Court.??

There are degrees of contempt, however, and a few months later he would

take a less lenient view of a similar case involving the Sydney Sun. Evatt and Dixon were closer in the early 1930s than they were to be later, often meet-

ing for lunch or tea. Dixon respected the quality of some of Evatt’s judgments, and was at first prepared to give him the trust and confidence appropriate to a fellow judge, sending him draft judgments for comment,

for example.” But he was frequently critical of Evatt and over the decade he lost faith in his probity. Evatt could be very partial on the bench, Dixon

noting in one instance how he was ‘full of antagonism to the respt [respondent]. Spent an unpleasant day listening to his attacks on Weston & his argument for the appellant. Most unjudicial’.* It is noticeable, reviewing

the Commonwealth Law Reports for the 1930s, that when Evatt was not particularly interested in a case he generally went along with Dixon’s judgment. The same applies to McTiernan, whose interest in cases was less pol-

itical than Evatt’s. On 8 February 1935 an escape route from the High Court was offered. At 11.30 a.m. Menzies called in at chambers to ask if Dixon would under-

take the chairmanship of a Royal Commission on Banking and Finance, decided upon at the previous day’s Cabinet meeting. Given the current conditions of economic depression there was pressure on the Government to look into licensing the trading banks and providing greater central control of the banking system. Dixon told him that to accept would be contrary to

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proper judicial conduct. He consistently held that judges should not become

involved in controversial matters other than those that could not be avoided

in the performance of judicial duty. Royal Commissions, of course, gener-

ally involve political questions, with the Royal Commissioner being asked

to decide what political course should be taken. Nevertheless Dixon agreed to consider it, noting in his diary that ‘It seems to present an opportunity of resigning in order to do this work & then of returning to the bar’. Dixon made use of Menzies’ visit to discuss some other matters. Believing he had a responsibility to warn against the appointment of inappropriate men to the judiciary, he asked Menzies to prevent Ian Macfarlan, Victorian Attorney-General, from becoming a judge—Dixon evidently believed Macfarlan had his eye on a judicial position should he lose in the Victorian elections scheduled for 2 March (he won narrowly). Dixon also hinted that Menzies would do well to let Kisch depart quietly without further action against him. He then discussed Gavan Duffy. Here was an opportunity for Menzies to say something on the subject of the Chief Justiceship, but he merely referred to the fact that as the price of his retirement Gavan Duffy ‘now demands a GCMG’ (a ‘G’ was considerably harder to come by than a

KCMG, which he already held). Although Dixon probably contemplated the odds of himself succeeding Gavan Duffy, it was Gavan Duffy’s advanced

age and unsuitability for the position that concerned him. Still, that same afternoon when Starke showed him a letter he had written calling on Gavan Duffy to retire Dixon ‘expressed disapproval’.*5 Within days that attitude

changed and he took it on himself to urge the resignation.

There were several factors involved here. On 14 February he spent the morning with Rich at the latter’s hotel discussing an article in the Age on the retiring ages of judges (for the High Court there was no compulsory retiring age, whereas there was, for example, in New South Wales), and Menzies’ comment to Rich the previous day about Cabinet’s ‘expectation that Latham should be C.J.’ (something Menzies had neglected to mention to Dixon). Later that day Starke came in to discuss Gavan Duffy, leaving Dixon with the

certainty that he would ‘publicly attack him soon’.”* Such scandal-making was anathema to Dixon and he would do anything to prevent it. Starke

seems to have been concerned that should Gavan Duffy hold on, a change of government would lead to the appointment of Evatt. In Dixon’s view too this would have been ‘a fearful disaster’.2” The following day at 3 p.m. he had an appointment to see Gavan Duffy and they discussed current cases. ‘Then as if an afterthought he said he had not asked me as he always did whether I noticed any diminution in his mind.’ To the amazement of the Chief Justice, Dixon urged him to ‘consider what he should do’, initiating an ‘embarras-

sing conversation’ during which Dixon made the following points:

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(1) that Starke would make a public attack (2) the press were at it (3) Parliamentary discussion would follow (4) his age had caused us to exer-

cise forebearance in the past where Starke had required dealing with & the like (5) that the bar had considered

the mre &

while having no

enthusiasms about Latham feared a change of Gov (6) I felt that heavy cases were too much for him.

Dixon then suggested Gavan Duffy talk it over with his son Charles. Should

Starke strike publicly Dixon would defend Gavan Duffy, but ‘the proper

policy was to ignore an attack’. Better still, ‘talk candidly to him in private’.?®

To judge from Gavan Duffy’s ‘amazed’ reaction no one, not even his son, had broached the matter. This was on Friday. During the weekend Gavan

Duffy decided to resign with or without his ‘G’. He may have told Evatt

what Dixon had said because Evatt later told Latham that Gavan Duffy had been forced to retire by a ‘combination which included one member of the

present bench’, obviously not a reference to Latham himself.?? Gavan Duffy

informed Menzies (as Attorney-General) of his decision, and Menzies told

Dixon on the Monday, still without commenting on the question of the replacement. Gavan Duffy ‘should be behind a bargain counter’, Menzies quipped.?° Over the next seven months Gavan Duffy would take leave preliminary to resigning in October while periodically threatening to stay on, the matter of his replacement unresolved. In response to Menzies again raising the matter of the banking commission during their discussion that Monday, Dixon ‘refused to act’, perhaps meaning ‘refused to decide’, for he would soon be pressed yet again. Having decided against the opportunity to return to the bar, Dixon now found himself dealing with a number of cases involving section 92 of the Constitution, which provides that ‘trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free’. But the question has always been, free of, or free from, what? From the protectionist policies of individual States, certainly, for the section was meant to end for ever the nineteenth-century tariff wars between the selfgoverning colonies. But free from what, if anything, else? An obvious problem was the word ‘absolutely’. Did that (for example) negate the imposition by individual States of road taxes, which put a burden on trucks entering from interstate? In 1920, in ruling unconstitutional a Queensland marketing scheme that restricted the flow of wheat from New South Wales, the Court

under Isaacs had decided that section 92 bound the States but not the Com-

monwealth.;! This then allowed the Commonwealth to enter upon the regulation of commerce on behalf of States powerless to do so. Through the early 1930s Evatt, with his experience in New South Wales politics and consequent

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tendency to favour States’ rights, worked to interpret the section as binding on the Commonwealth as well as the States (accepted by the Privy Council

in 1936) but in a restricted, purely anti-protectionist sense that would allow governments to regulate and ‘canalise’ interstate commerce, for instance by encouraging rail transport (a major earner for the States) and discouraging road transport, provided the overall flow of goods was not restricted.

During

these years

Dixon

‘absolutely free’ as a guarantee border movement, but doing so to triumph until the 1950s. He depend on a priori assumptions

was

elaborating

his interpretation

of

of the individual trader’s freedom of crossin dissent,** his interpretation not destined was seeking a legal solution which did not (such as the correctness or incorrectness of

laissez-faire economic theory). The ‘essential attributes’ of interstate trade

were crucial to his solution. This was a good example of his recourse to Aris-

totelian concepts as a basis of legal reasoning. He also knew that the textual origins of section 92 were to be found in the Act of Union and he was amused, in a rather superior way, that others did not. Writers who think of

Dixon’s position on section 92 as a political one misrepresent him.>? Dixon’s interpretation was now about to receive its classic statement with Gilpin’s Case. Because he had four judgments to write through late February and early March, all relating to section 92 and all to be delivered on 6 or 11 March, his mind was wonderfully concentrated on arriving at a definitive legal solution to problems posed by that section, though he never

expected his solution to win the day.’ The lights in the study at ‘Beechfield’ burned later into the night than usual, sometimes until almost 4 a.m. through

late February and early March. Gilpin involved the transportation of goods,

from a company’s Melbourne warehouse to its branch shops in New South

Wales for purposes of sale, in a vehicle not licensed under the State Transport (Co-ordination)

Act

1931,

and

as a result the New

South

Wales

Com-

mission for Road Transport and Tramways had imposed a charge of three-

pence per ton for each mile from the State border to the shop most distant

from it. In his dissenting judgment Dixon wrote that ‘Independently of any decided case, I am clearly of opinion that to allow these provisions to apply to the carriage of goods in a course of transportation from another State would be inconsistent with the absolute freedom of trade, commerce and intercourse among the States’. He stressed that it is not every regulation of commerce or of movement that involves a

restriction or burden constituting an impairment of freedom. Traffic

regulations affecting the lighting and speed of vehicles, tolls for the use

of a bridge, prohibition of fraudulent descriptions upon goods, and provisions for the safe carriage of dangerous things, supply examples.

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The vital question was whether the restriction or burden was imposed in reference to the essential qualities which are connoted by the description ‘trade, commerce, and intercourse among the States.’ Now, in the present case, the application of the statutory provision authorizing the imposition of the burden is the consequence of the act’s being of a commercial or trading character and of its involving intercourse between two places.

He proceeded to show how such an interpretation of the section would

have produced different judgments in previous cases, which was why he

was considering the present case independently of decided cases. Then he went on to argue that section 92 should be read as applying not to trade, commerce, and intercourse as a whole but distributively: Trade, commerce and intercourse among the States is an expression which describes the activities of individuals. The object of sec. 92 is to enable individuals to conduct their commercial dealings and their personal intercourse with one another independently of State boundaries. The constitutional provision is not based on mere economic considerations.**

This interpretation, somewhat modified during its years of triumph in the 1950s, is simple, clear and semantically logical—that is its brilliance— but to the pragmatic, regulatory cast of mind which tends to dominate in government, and sometimes in the courts and law schools, Dixon’s interpretation is hard to live with. Since his retirement it has been eroded, as

section 92 has come to be seen as simply a prohibition of clearly protectionist measures. Geoffrey Sawer would later write that Dixon’s reading of

section 92 was ‘a guarantee of individual liberty appropriate to the circumstances of a private enterprise or capitalist society, “liberty” in a sense determined by Herbert Spencer’s sociology’;°” but liberty is liberty, Dixon’s interpretation was apolitical, and though he knew of Spencer’s writings, the insinuation that he was a social Darwinist was obviously false. In early March 1935 Evatt was encouraging Rich, as the Court’s senior puisne judge, to press for a commission as Acting Chief Justice. ‘Doubtless

it might help towards his selection for the office but it is only a very trifling

thing’, Dixon thought after Rich had broached the subject. It would have

suited Evatt, if he expected to be offered the position of Chief Justice by a future Labor government, to have it in the meantime go to someone who might not be expected to hold it long—Rich was now into his seventies. McTiernan, on the other hand, thought Dixon would be preferable to all others as Gavan Duffy’s replacement, and told him so.3®

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Dixon’s major distraction from section 92, however, was not the Chief

Justiceship but the preparation of a lecture on ‘The Law and the Consti-

tution’ for delivery on 14 March at the University of Melbourne, one of a series commemorating the centenary of Victoria. Capping an extraordinarily productive fortnight, this major paper was completed in the study at ‘Beechfield’ at 3.20 a.m. on 10 March, the night before his judgments in Gilpin and other section 92 cases were delivered. It is a profoundly considered treatment of the historical relations of three rival and intermeshing con-

ceptions, the supremacy of the law, the supremacy of the Crown, and the

supremacy of Parliament, focusing not only on British constitutional history from the Middle Ages but on the fate of these concepts in the United States, Australia, Canada and South Africa.*? ‘I fancy the audience found it dull’, he wrote. He also noted, ‘Harrison Moore in proposing a vote of thanks to Duffy & me praised the former so much that Rich went out’.

It speaks volumes for Dixon’s intellectual and physical stamina that he

could write this paper and produce an authoritatively articulated statement

on section 92 while also working on other judgments, all in a fortnight or so, and with only four hours’ or so sleep most nights. Starke, by contrast,

feeling obliged to write separate judgments and not simply attach his name to someone else’s, was finding it a strain just to keep up.‘' The only one equal to Dixon in stamina was Evatt. Evatt’s habit of following Dixon in cases that did not capture his interest gave him some of the time he needed to produce significant books.*? His patience would fray under stress, however, resulting (for example) in a ‘strong inclination to upset McTiernan’, also Starke’s favourite target, whereas on the rare occasions when somebody or something succeeded in destroying Dixon’s equanimity the result might be resentment or short-term depression but rarely aggression. Then at the end of May a major rift opened between Dixon and Starke, no doubt just the latest in a series since 1929, over the latter’s judgment in a contempt case involving the Sydney Sun. On 13 April in a leading article

the newspaper had attacked the Court for the way it ‘knocked holes in the

Federal laws’. The article, critical of recent decisions of the Court including its frustration of the Government’s attempts to deport Kisch, argued that

public money could be saved by simply placing legislation, prior to enactment, before the Court for judicial approval. The justices were ridiculed as ‘bewigged’, ‘ingenious’ and ‘hair-splitters’. In Sydney for the case, Dixon, along with Evatt and McTiernan, agreed with Rich that the offence was

serious, that the article ‘charged the Court with a wanton destruction of legislation effected by the exercise of excessive ingenuity’, in Dixon’s words.**

Starke thought it trivial—before the hearing of the contempt application on 28 May he told Dixon it ought to be ‘thrown out’. They disagreed. Starke

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acknowledged that it was a contempt but not a serious one, wanting to make the newspaper pay costs only. Dixon wished to impose a £500 fine as well. Starke said he would go to £100. Dixon thought the Court should

decide unanimously in this case and told Evatt they would therefore have to agree to Starke’s offer. The next day Starke’s judgment was circulated. It

concluded with a statement dissociating himself from the rest of the Court on the matter of the imposition of an excessively severe fine (though he did not yet know what it would be fixed at), describing it as ‘unwise’ and ‘uncalled for in the public interest’.46 Dixon saw him ‘and remonstrated in no measured terms’ but Starke went ahead and delivered it. In the event

Dixon took no part in fixing the fine because, while he was talking to Starke,

Rich, Evatt and McTiernan fixed it at £200 for the company and £50 for the editor. Starke had reneged on his agreement of the 28th to impose a fine.” The following day, by means of a question about the galley proofs for another case, Starke attempted ‘to talk to me at Assembly as if nothing had happened’.*® Dixon was not talking back. More than ever now he was thinking of alternatives to this work. In Melbourne on 24 May, over tea, Eugene Gorman had asked him whether he would accept the Chief Justiceship of Victoria if it were offered. ‘I said I would not decide’, but it was probably playing on his mind at the Yehudi Menuhin concert the following night—he had little appreciation of serious music, Gilbert and Sullivan being more to his taste.‘? On 10 June when his friend Wilfred Fullagar asked his advice about going onto the bench ‘I

answered somewhat unrestrainedly’. Meanwhile Gavan Duffy was threaten-

ing to come back—‘he wished to be frank & to say there was a bare possibility that he might return: it depended on the turn of events: it was unlikely but one could not say’.°° There was a downward spiral as the winter vacation approached. Dixon’s eleven-year-old son Ted was a perpetual worry. His academic progress was ‘deplorable’,*' and his school teacher referred to him as a ‘problem child’. ‘I fear his fate’, Dixon wrote.*? As well as assisting Rich with his judgments (he would soon be writing at least parts of them, even when he had not sat on the cases), he was having to help McTiernan compose his.5? The great Harrison Moore, whom he esteemed above any other lawyer in the country, died on 1 July. Then Dixon’s health collapsed at the

end of the term, and much of the second half of July was spent in bed recovering from influenza and a general state of collapse, reading Trollope and the sceptical Essays of Montaigne.

He had scarcely recovered when in mid-August the Court was off to Perth. Through the early years of the Depression the sittings had been con-

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fined to Melbourne and Sydney to save money, but the annual ‘outer circuit’ to Brisbane,

Perth, Adelaide

and

Hobart

had

now

been

resumed.

‘The

judges are expected to sit in Melbourne 62 days and out of Melbourne 128

days’, Starke observed. ‘They are like and are treated like carpetbaggers

roaming the country.’ For the Adelaide to Perth leg of this trip, Evatt and McTiernan travelled by train to avoid Starke and a rough sea passage.*> Dixon and Rich took the ship, the Manunda. The weather was unexpectedly pleasant, and Dixon settled down to reading a book on the great Whig leader Charles James Fox, and transcripts of the cases coming up in Perth. On the second day out Starke walked up, tossed a book on the adjacent couch and proceeded to discuss it, then in the evening, after coffee, approached again, talking of Gavan Duffy’s retirement, of the Perth cases, and ‘of all sorts of topics started by him’. On the third day out: ‘Read & walked all day. Avoided meeting Starke again’. When the ship stopped at Albany next morning (‘a beautiful dawn’) Dixon followed breakfast by walking out along the Mt Barker Road for six miles with Alan Brooksbank, then in the afternoon ‘read on the after deck & looked at the sun set. On each occasion Starke came near by but I went on with my task of reading or gazing’.* (He was still on cold terms with Starke two months later when, in Sydney, he refused an invitation from Frederick Jordan, Chief Justice of New South

Wales: ‘He had invited Starke so I wrote I hoped to go to Melb for the week

end’.5”) On the bench the first day in Perth, 21 August, Starke made a point of contradicting Dixon and ‘laughed when I made a mistake. He went on the bench before us & took his seat’, a deliberate slight. Meanwhile Evatt was bullying McTiernan, this time into giving him his cabin for the voyage back east because it had a bath.** Escaping such pettiness, Dixon took walks outside sitting hours and spent Sunday with his friend Sir Walter James, former Western Australian Premier and social reformer (‘Nutty James’ to

his foes), who had entertained him on the way to London in 1922.5? Two

days later he travelled back east by the Kalgoorlie Express and Transconti-

nental Railway and was home by the end of the month. This totally unremarkable trip epitomises the Court in all its divisiveness.

Dixon had now decided that he would not accept the Victorian Chief Justiceship if offered, telling Latham this on 6 September when he was invited to the latter’s home to meet the Japanese Consul General, Kuramatsu Murai. Latham took Dixon aside to implore me not to accept the Vic C.J. if offered. Told him it had not been 8& would nor although some time ago I was sounded. He sd it would be the end of the H.C. I sd if he became the C.J. of the HC to see

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me at once. He wd be horrified. But he sd that ifI wished to be CJ of it & the govt wd offer it, he wd withdraw. I sd it was very kind. But if he took the unthankful job I would support him to the full.°°

Dixon could hardly indicate an interest in the Chief Justiceship unless he knew that Menzies, as Attorney-General, would back him for it, but Menzies

had not sounded him out. On 19 September Dixon saw his close friend Sir John Higgins, who occasionally saw the Prime Minister, and was told of a

recent discussion in which Lyons had told Higgins that if Latham were not

to be appointed the Ministry would be regarded as breaking faith, but that he personally thought Latham unsuitable and would not be sorry to see Gavan Duffy hang on. Menzies, he said, was anxious to appoint Latham. Dixon knew Evatt was encouraging Gavan Duffy to hold on, ‘endeavouring by that means to obtain the office’, which he believed ‘would be a fearful disaster’. He was probably thinking of Evatt’s antipathy towards McTiernan

and Starke as well as of Evatt’s judicial qualities. The following day, how-

ever, Charles Gavan Duffy told Dixon he had finally persuaded his father to

resign with effect from 1 October. He also told Dixon that Premier Albert Dunstan’s anti-federal bias had been the reason for Dixon not being the Victorian Chief Justiceship.*' There was a souring now in his affection for Menzies, who still him to preside over the Royal Commission on Banking and Finance his having refused earlier in the year and again recently when the

had come

from the Federal Treasurer, Richard

offered

wanted despite request

Casey, via Latham.*?

On

29 September, a Sunday, Menzies rang Alice Dixon at ‘Beechfield’ and asked her whether there was any chance of Dixon’s presiding, a breach of decorum perhaps excusable in a close friend. She said nothing in reply, but Menzies told her that (in Dixon’s words) ‘he would come to Sydney to see [Dixon] if there was a chance: wd [Dixon] write to Canberra’. That night, after Dixon had returned home, Fullagar came around to repeat the same question he had asked in June—should he accept a judgeship in the Supreme Court of Victoria? Dixon discouraged him ‘on every ground’ but felt afterwards that he had not said enough, so first thing the following morning he rang to say it was ‘a perfect tragedy’. He warned Fullagar that before answering he should ensure that the Victorian Attorney-General had full authority or he might find himself let down, and he should certainly not let the Attorney-General take his answer back for consideration. At 10 a.m.

Fullagar rang back to say he had refused the offer (though in 1945 he would accept). Later the two had tea together at the Melbourne Club where Dixon

congratulated him and ‘gave a very bad picture of judicial life based on my own unhappiness & observation of others’. That very afternoon it was

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Wilbur Ham who was being propositioned. He telephoned ‘Beechfield’ the

next morning—would Dixon see him? They met in Dixon’s chambers at 11.30 a.m. Ham said Latham had come to see him the previous day to say

that although he had no authority in the matter he believed the Victorian Government would offer Ham a seat on the bench if he would take it. Dixon minced no words. I said that no one could get any pleasure out of judicial work but with him the question should be could he afford to throw it up if it made him unhappy & retire. If so, and he felt he would not like to face work at the bar now, I would not advise him against it. But I hated the work. Gave

reasons.*°

Ham was witty and cultured, though anaemic, with a limp from a cavalry accident in World War I. Dixon was fond of him. Like Dixon he was a keen member of the Medico-Legal Society of Victoria and had been its President in 1933-34, when he had invited Dixon to address it on the subject of ‘Science and Judicial Proceedings’, one of two papers Dixon gave in those years on science and the law.** Ham had a large practice but it was ruining his health, and his sight was failing. Following his friend’s advice he too declined the offer.°” That night Dixon took the express to Sydney where all sorts of rumours about the Chief Justiceship were flying around: that Earle Page, Leader of the Country Party, was opposed to Latham, that Menzies had said no one should go from politics to the bench, even that Menzies was sick of the

question and would take the position himself.“ Then on 10 October Dixon

learned Latham future. Dixon cutting

from Rich that Latham had been appointed. In Dixon’s mind was a usurper, and that view would colour their relationship for the The swearing-in was on the 17th—‘Menzies saw me afterwards’, noted, ‘& I was very curt’. Latham began his new career with a comment to Rich who was explaining his failure to send written

congratulations. ‘Excuse accepted’, Latham replied. ‘It is not an excuse’,

Rich protested, ‘it is an explanation’.© Starke forced a reargument in one case, threw a fit of pique in another”’—it was business as usual in the ‘new’

Latham Court.”

On the way home for the weekend Dixon ran into Menzies on the platform at Albury—‘made some trivial civil observation & did not see him again’.”? It would be months before Dixon would once more think of him as

a good friend. With rumours flying in all directions he might have said some-

thing without impropriety. But thirty years later, in the period immediately preceding Barwick’s appointment, there would be the same silence. Dixon’s

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integrity and seriousness of purpose, combined with his clarity of thought, led to repeated internal tensions as he perceived how frequently his expectations were let down not just by other judges but by politicians including Menzies. Menzies was an egotist in a way that Dixon was not: Menzies was concerned above all with his own advancement, and he frequently let Dixon down accordingly; Dixon’s overriding concern was that people and institutions, and the courts especially, should act with propriety and rationality so as to discharge their duties honourably and correctly. In this context it is not surprising that he frequently resorted to the classics, and especially to Greek literature, as a refuge from the deep disappointment provided by such actions and events. Latham proposed to hold regular conferences on important cases and Dixon makes a few references to them in the diaries.” But unlike the informal and frequent conferences Dixon would later convene as Chief Justice they turned out to be irregular and were not held on many important cases. Starke’s antipathy towards Rich and McTiernan meant that he could never

be left in Sydney to form a Full Court of three with them, and for that

reason Dixon had to cancel a trip to Melbourne for the first convention of

the Law Council of Australia at the end of October. This was a sacrifice. He

had prepared two papers, ‘The Development of the Law of Homicide’ and the brilliant ‘Sir Roger Scatcherd’s Will in Anthony Trollope’s Doctor

Thorne’. This latter had been written as a make-weight. Latham had sol-

icited the homicide paper, then told Dixon it was too short.” Evatt agreed to deliver the first, Kenneth Bailey, Professor of Public Law at the University of Melbourne, and later Solicitor-General of the Commonwealth, the second. Significant judgments delivered in the closing months of 1935 included two in which Dixon dissented. In the Metal Trades Case earlier authority

was discarded by the Court in favour of a ruling that awards against employers who were parties to the proceedings applied equally to non-unionist

employees not participating in the proceedings.’ Following the reading of

the Court’s about face, the next morning’s press, to Dixon’s surprise, seemed ‘quite unaware of the great importance and the significance of the Metals Trades judgments’.”* This case marked a crucial stage in the establishment of a convenient ‘common rule’ applicable to employers of unionists and employers of non-unionists in such cases, but Dixon’s dissenting judgment is not premissed on convenience but logic: It is one thing to say that an organization of employees may, by a paper demand, raise a dispute with employers, who do not employ its members, about the wages to be paid and the conditions to be afforded to any of

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its members they may in future employ. It is quite another to say that the organization may raise a dispute with them on the subject of wages and conditions upon which they may continue to employ their workmen, although they do not include members of the organization and the employers have never engaged a single member of the organization.”

In R v Brislan he argued against the Commonwealth having of power to regulate radio broadcasting. In his view the reference 51 (v) of the Constitution to ‘postal, telegraphic, telephonic, and services’ indicated interpersonal communication in the form of messages and thus could not logically apply to radio broadcasting,

any grant in section other like individual which was

essentially mass entertainment.”* Interestingly, he helped Rich compose his non-dissenting judgment in this case, like a debater momentarily changing sides,”? the day after writing to Evatt that ‘I have read Latham’s account of the accumulated reasons for deciding that broadcasting is a telephonic service for distributing messages. I am unmoved except that I can see that the current of error is strong and that my opinion will be regarded with pity by more statesman-like lawyers’.*° He agreed with Evatt that his draft judgment

in another case was flawed—he had been ‘spending so much time in finding

conclusions for reasons and reasons for conclusions in the very many cases now awaiting judgment’, he confided, that he needed a ‘mental purgation’,

but committed himself to ‘a complete re-consideration of the case’.*!

Worries pressed in from other directions. Alice sustained serious facial injuries from a smashed windscreen in a motor accident on 2 November and was hospitalised for a fortnight, during which Ted became ill and

needed his father’s attention (the boy was ‘lachrymose ... Ate no tea... went to sleep in my arms’).*? In December both boys’ examination

were disappointing.

results

The family spent much of January at Toolangi, their annual return to nature. Dixon kept himself fit throughout the year by taking daily walks

wherever the Court was sitting. In Sydney, for example, he would walk to

Court from what was known as ‘52 Macleay St in Greenknowe Ave’ (entrance in Greenknowe Ave), the comfortable boarding house where he normally stayed,® taking roundabout routes, through the Domain and the botanical gardens, around the point called Mrs Macquarie’s Chair, or across the new Harbour Bridge and back. Nothing, though, could compare to

walks in the wild, which was why he relished his outings with the Wallabies. During this holiday at Toolangi, in the fortnight from 10 to 23 January, his

daily mileages, mostly on seldom-used tracks or across open country, were

meticulously noted in his diary: 8, 15, 74, 22, 14, 11, 13, 134, 15, 15, 14,

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24, 13, 12+. The 24 miles on 21 January was a single walk with the asthmatic Franklin, or ‘Bruv’, as he was affectionately known (being Ted’s older ‘bruvver’), his father’s most loyal walking companion. They left at 10.30 a.m., returning at 6.20 p.m. Though Dixon was fit he had developed minor complaints including sinus problems. At the end of this month he had three non-malignant anal polyps removed under local anaesthetic. Because he had an aversion to general anaesthetics (ether at this time, with its unpleasant after-effects), he never ‘went under’ in his life. According to his daughter Betty this was because ‘he didn’t want to lose control’. In fact, through the remaining

decades of his life he would endure much pain from haemorrhoids rather than have a haemorrhoidectomy, an operation normally performed under general anaesthetic. Instead, his doctor, Sir John Newman

Morris, would

regularly inject them with an astringent agent, an unpleasant procedure but one that allowed Dixon to remain ‘in control’,

Back in Melbourne in early February his reading alternated between

Holdsworth’s History of English Law, Aeschylus’s Agamemnon, and Cicero’s De Amicitia. The newspapers were full of the Sodeman case. On

2 December 1935 the body of six-year-old June Rushmer had been found, bound and gagged, outside the Gippsland town of Leongatha. She had died

of suffocation. The suspicions of a workmate led police to Arnold Karl Sodeman, thirty-six, who confessed to this murder and others of a similar

nature—of a twelve-year-old girl and a sixteen-year-old girl in Melbourne in

1930 and 1931, and of February 1936 he was Charles Gavan Duffy.§5 insanity, was convicted

a twelve-year-old girl at Inverloch in early 1935, In tried for murder, the judge being Dixon’s friend Sodeman, pleading not guilty on the ground of and sentenced to hang. He applied to the High

Court for leave to appeal, the matter coming before Latham, Starke, Dixon

and Evatt in late March. Sodeman was born in Dixon’s own suburb of Hawthorn. His father and grandfather had died in asylums for the insane and he had been sent to a reformatory at seventeen for forgery and theft. In 1920 he had been sen-

tenced to three years’ hard labour for attempted armed robbery. From 1926 he worked

as a labourer

in Melbourne.

He

married

and

settled down,

became a father, and later moved with his family to Gippsland. He would frequently get drunk but was not violent towards his family. Workmates found him friendly and generous.

Dixon and Evatt believed that Charles Gavan Duffy, in his summing

up, had misled the jury into thinking that Sodeman had not only to establish his insanity to their satisfaction but to do so beyond a reasonable doubt.

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Latham and Starke, on the other hand, thought Charles Gavan Duffy’s sum-

ming up adequate. Both Dixon and Evatt were persuaded by the evidence (supported by medical and psychiatric testimony) of temporary insanity taking the form of uncontrollable obsessional impulses under intoxication, with no awareness of criminal action until immediately after the event. Latham and Starke were not so persuaded. The Court being equally divided, special leave to appeal was refused. The Privy Council also denied special leave to appeal and Sodeman was hanged on 1 June 1936. The autopsy dis-

closed leptomeningitis, which under intoxication can cause congestion of the brain. Because Dixon had a longstanding interest in criminal insanity this case warrants close attention here.** Sodeman’s way with his victims

followed a pattern that Dixon set forth in far more detail than did Latham,

Starke and Evatt, because he wished to stress the absence of a crucial element from each of Sodeman’s confessions—the memory of the actual rape and murder—which might suggest a temporary disorder of the brain causing unawareness of the nature and quality of the act, or of its wrongfulness, factors crucial to the establishment of temporary insanity. In regard to the most recent murder, Sodeman’s signed statement was to the effect that (in Dixon’s words) while he was riding his bicycle he happened to pass the child, who asked him for a

ride, and that he gave her a ride on the bar of his bicycle. After

they had gone some distance she said it was far enough. He dismounted and told her she could walk home. The confession then goes on:—‘I made a run towards her and she ran into the bush. I ran after her and caught her around the neck and she started to scream. I held her by the neck and she went limp all ofa sudden. I then took her bloomers off and jammed them in her mouth. I then got her belt from her frock and tied it over her mouth and around the back of her neck. I then tore a strip off her dress and tied her hands behind her back and left her lying downwards. I then left her there.’ He adds that he cannot say why he did this to the child, that he then realized he had done a dreadful act and that he went around to try and show he was away from the scene.*”

After similarly detailing each of the other three murders, Dixon went on to make the point that it is evident that the prisoner’s actions are governed by recurrent mental or volitional conditions which result in his committing atrocities peculiarly uniform in their characteristic features. It is also apparent that each statement fails to give the details of the violence he must have used after

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he seized his victim’s throat and before she collapsed. The omission is, of course, natural on any view of the facts. Its importance arises from the

nature of the medical testimony.**

He found that testimony persuasive (‘There was no likelihood that gaol medical officers would express hasty or ill-considered judgments in his favour’),® particularly as the Crown

had called no evidence

in rebuttal.

Whether or not it influenced his judgment, Dixon knew about the radical effects of alcohol on self-control, and its links with insanity—his father in the first instance, his maternal grandparents in the second provided examples. Charles Gavan Duffy’s summing up, moreover, had been remiss in that it had ‘failed to give the jury an adequate opportunity of appreciating the strength of the prisoner’s case’, had not furnished them ‘with the means of appreciating fully how the legal criterion of irresponsibility might be applied in the prisoner’s favour to the precise case made by the medical evidence’, and had probably led them ‘to suppose that a burden of proof lay on the prisoner of a much higher degree than the law demands’.” As Evatt pointed out in his own judgment, Charles Gavan Duffy had ignored a perfect model of summing up in such a case, Dixon’s celebrated charge to the jury in R v Porter, delivered on 1 February 1933 in Canberra,” Dixon sitting in the original jurisdiction of the High Court under section 308 of the Judiciary Act 1903. That case had brought out an important aspect of Dixon’s character, a deep humane concern. A distraught father had been found not guilty of murder in poisoning his eleven-month-old son, Dixon having taken the jurors step by step through the rules governing the finding of criminal insanity, first adopted in 1843 in M’Naghten’s Case—principally, that the defendant must be able to establish to the jury’s satisfaction that he

was unable at the time of his act to appreciate its nature and quality, and

unable to understand that it was wrong.” Dixon had studied these rules carefully in their historical context and development. (His interest in criminal

insanity would continue into the 1950s when he would criticise current legal

developments in the field.*?) He had also encouraged Evatt’s interest in the connections of medicine and law, taking him (just a few days before Sodeman sought leave to appeal) to the Medico-Legal Society after dining him at the Melbourne Club.” It is not surprising, then, that Evatt’s own judgment in the

Sodeman case displays a thorough understanding of the relevant case law. Dixon was critical of Latham’s handling of the appeal. The matter was heard over three days from 30 March to 1 April, but on the first day ‘It

seemed apparent that Latham had made up his mind on grounds of public policy to dismiss the appeal’, Dixon took Latham and Evatt to lunch at

Menzies Hotel, then after Court, when Evatt drove Dixon to the Glenferrie

Owen

Dixon

with his mother, Edith

Annie,

centre of stability in the family of three, 1886

Dixon aged two, 1888

Dixon aged three, 1889

Dixon with his parents, Edith Annie and Joseph William, c. 1896

Dixon (front row, left), with Hawthorn College cadets, 1900

Dixon with unidentified friends outside Parliament House, Melbourne, early 1930s

Levee for the Duke of Gloucester, Government

House, Melbourne,

19 October 1934. Dixon, holding his tricorn hat, stands behind the central figure, the Duke of Gloucester. Front row dignitaries are (from left): Prime Minister Joseph Lyons, Victorian Governor Lord Huntingfield, the Duke, Lieutenant-

Governor Sir William Irvine, and Victorian Premier Sir Stanley Argyle.

me ; *

4 : hb a

With the Waterfall Farm Fly Fishing Club (of which Dixon was not a member), late December 1939 or early January 1940. From left: the surgeon Sir Harold Dew, former NSW Premier Sir Thomas Bavin, Dixon, Sir John Latham and Barney Allen

Alice, Betty, Anne, Dixon

and

Ted pose in the sitting room

26 April 1942, following the announcement

of Dixon’s

as Australia’s Minister to the United States.

at

*Yallambee’,

appointnent

Dixon addresses the Lend-Lease dinner, 11 May

1942, Melbourne.

From left: R. G. Menzies (partly out of frame), Prime Minister John Curtin, Leader of the Opposition Arthur Fadden, Dixon and American Envoy Nelson Johnson.

With Prime Minister John Curtin, April 1942

Dixon at the Australian Legation in Washington with his First Secretary Alan Watt (left) and Third Secretary

Keith Aickin, c. 1942

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Road tram, Evatt mentioned that Latham had been referring to the ‘Public danger’.?> By the following morning Dixon had decided provisionally that

leave to appeal should be granted and told Evatt. On assembly Latham was

full of the need to adjourn the Sydney sittings, originally scheduled to commence that week, in order to give the Sodeman appeal ‘full consideration’,

but then Dixon learned from Alan Brooksbank that Latham had in fact dic-

tated his judgment before assembling. ‘Of course this explains his complete lack of interest in my views of the case’, he noted, adding that ‘Starke was terrible—sadism.’ That day Dixon had lunch with Justices Charles Lowe and Russell Martin, both on the Victorian Supreme Court with Charles Gavan Duffy, learning from Lowe that Gavan Duffy had apparently thought Sodeman irresponsible, but that the Victorian Cabinet had told him ‘at once’ that ‘the public wd never stand for a reprieve’. On 1 April the Court finished hearing the application. Dixon complained to Latham that Starke ‘had given no judicial consideration to the

case’, while for his part Latham appeared ‘quite unmoved by my attempt at legal reasoning’. Dixon began writing his judgment that afternoon, having just learned from Evatt that the real reason Latham had adjourned the

Sydney sittings had been his desire to attend the University Commencement

that coming Saturday. Dixon’s long and careful judgment was not completed until late that night, in chambers, after which he and Brooksbank walked through the cold and empty streets to Flinders Street station in time

to catch the last train home.”

The judgments were read to a crowded courtroom the following morning. Latham’s persuasively emphasised what does seem a fatal flaw in Sodeman’s claim of sudden unawareness of his actions at the point of assault, namely the evidence of ‘planning and deliberation by the accused,

choice of a secluded spot, and immediate arrangement of an alibi—all of which tended against the plea of insanity’, and went on to argue that ‘The refusal to recognise a defence of uncontrollable impulse per se doubtless looks for its justification, not exclusively to opinions

(often differing) in

scientific theory or moral doctrine, but to the interests of society and to practical considerations affecting the security of the community’.** Latham

strongly criticised the M’Naghten rules for their reliance on ‘an abandoned

system of faculty psychology which divided the mind into almost unrelated functions each existing in a separate compartment’.” Starke’s judgment made the powerful point that the High Court should only intervene where it is shown that substantial and grave injustice has been done. All the States have now, I think, constituted special

tribunals for hearing appeals in criminal cases, and interference by this

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Court in such cases, unless under the circumstances mentioned, is calcu-

lated to lead to mischief and inconvenience in the administration of criminal justice."

Evatt’s judgment was heavily critical of Charles Gavan Duffy’s charge to the jury, and considered the extent to which a claim of ‘irresistible impulse’ might be consistent with the M’Naghten rules. Afterwards he came up to Dixon’s chambers ‘to discuss the conduct of our colleagues’ of which ‘he strongly disapproved’. He also asked ‘to join in other judgments or to concur.” On 5 June Dixon learned from Evatt that the autopsy on Sodeman had disclosed leptomeningitis. The prison psychiatrist, Dr Reginald Ellery,

told Evatt that Sodeman ‘had informed him that on three other occasions’

apart from those that had resulted in murder ‘he had found himself with his

hands on the throat of a girl not yet choked’, that his ancestry was even

worse than the evidence had indicated, and that ‘no Xray or other proper investigation was made owing to Crown refusing money’.* Latham and Starke were already concerned at Dixon’s strong influence on the Court, and as Evatt increasingly joined in Dixon’s judgments Latham vainly tried to rein in that influence. Dixon noted in September of that year, ‘On going to Lathams room for dinner he sd he had had a long talk with Starke. There is, I think, a desire in both of them to stop my writing judgments. Latham sd E [Evatt] should not join in my judgments. I agreed but sd why should I refuse to let him when he asks’.‘ In fact Dixon believed at this stage that ideally every judge on the Court should write a judgment for each case on which he sat,‘ and for twenty years (as he later told Lord Morton) he did just that.* In certain areas of the law, however, he believed

that, if possible, a Court should speak with a single voice—for example in certain criminal cases in order to avoid confusion at the trial level. His hand

is evident in many of the High Court’s joint judgments through the 1930s, and his influence on Evatt and McTiernan in particular (to say nothing of Rich) continued to grow, Starke complaining to Latham in several letters

that in his view Evatt and McTiernan habitually ‘parroted’ Dixon with his active encouragement: Dixon may be right but let an independent majority say so. I was disgusted with the result of Phillips and E.S.A. Bank. Every one agreed with the view that you and I took at the close of the argument. Then Dixon

suddenly alters his mind and to me a most confused judgment and the Parrots at once agree.”

It could hardly have been to Latham’s liking that it was Dixon and not he

who was now dominating the Court. Starke rubbed it in:

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... it must be obvious to you as to others that the High Court is becoming more and more dependent upon the opinion of one man. It is a

new development in the High Court and much to be deplored. I don’t accept your generous view that the result is distasteful to that one man. He plays up to it and really encourages it."

Of course the reason why Dixon was by now so dominant on what, without much distortion, may be termed ‘the first Dixon Court’ was too unpala-

table for Starke to mention. Sir Frank Gavan Duffy died on 29 July and was buried the next day, a

cold, bleak Thursday. Dixon was among the pallbearers, as was Starke. Back in February Gavan Duffy had dropped in at the Court, walking into Starke’s room supposing it to be McTiernan’s. In Dixon’s words, ‘Seeing Starke, he sd. “Starke Is our misunderstanding to continue until I die?” Starke replied, “I see no reason why it should not”’.? So it had. Later, walking behind the hearse through the Boroondara Cemetery in Kew, Starke muttered to Dixon his latest resentments against Evatt. As they passed the Grecian-styled monument over the grave of Annie Springthorpe, Starke remarked cynically that her husband, the physician Dr J. W. Springthorpe, whom Dixon knew through the Wallaby Club, had spent £10000 on its design and construction ‘to spite her relatives who took the residue’. ‘A pitiless man’, Dixon noted of Starke, ‘& a sad scene’.!°

A few days earlier Dixon had learned that the Privy Council had allowed the appeal in the latest James case,'! one of many on section 92 of the Constitution initiated by Frederick Alexander James, a South Australian

marketer of dried fruits who had fought with much success against State and

Commonwealth marketing scheme legislation. The Commonwealth was still

trying to restrict his freedom of interstate trade. In James v Commonwealth

(1935) the Court had reiterated its view that section 92 did not bind the Commonwealth, but only because they felt bound by the decision to that

effect in McArthur (1920), which seemed increasingly untenable.'? They

were therefore happy to have James appeal to the Privy Council which, knowing that a majority of the High Court (including Dixon) would welcome change in this area, could be expected to rule that section 92 bound

both the States and the Commonwealth, but preferably to a limited extent

so as to allow for some regulation of interstate commerce. In February 1936,

when the Privy Council had heard three applications to appeal including this one,

Dixon

had read the transcripts.

‘The P.C. under Hailsham’, he

observed, ‘disposed of all three without any understanding of them at all.

Shocking proceedings’.!’ Now, six months later, he was even more appalled when their Lordships, having allowed the appeal in James, brought in their

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judgment, because although they decided that section 92 bound both the

States and the Commonwealth in a limited sense, allowing for regulation of interstate commerce provided it be not restricted ‘as at the frontier’,'* the reasoning, as Geoffrey Sawer has said, was ‘sufficiently ambiguous for all the main theories current in the High Court to stay alive’.!5

‘Very poor’, Dixon privately noted of the judgment,'* and wrote to

Latham that ‘It is a very unphilosophical and crude production, to my mind’. Then he added with typical irony, ‘However [Hailsham] seems to have made some attempt to inform his mind by reading our Court’s decisions’.'” Starke thought it ‘meant a very narrow application of 92: restricted to border interferences’,!® but beyond that, no one on the Court really had any idea what to make of it. A few weeks later Dixon learned from Kenneth Bailey that at the Premiers’ Conference in Adelaide none of the Premiers had any understanding or policy on section 92, and that ‘Menzies did not put forward any course wh he proposed as one he would stand by & took the attitude of explaining alternatives & saying the States must decide’.'? This despite the fact that in London it had been Menzies who had presented the arguments on behalf of the Commonwealth in the James case.”° On 2 August, on the night express to Sydney, Dixon dined with Alfred Stirling whom he had known at the bar. Stirling had returned from London where he had been Assistant External Affairs Officer, and now headed the Political Section of the Department of External Affairs in Canberra. He talked about how well Stanley Bruce, Australian High Commissioner in London, with a seat on the League of Nations council in Geneva, had presided over the Montreux conference on Turkey’s demand for revision of the Straits Convention. He talked about how the British had been taken aback by the sudden Italian success in Abyssinia. He talked about Neville Chamberlain who he thought would soon be Prime Minister. Dixon had followed the Abyssinian campaign and events at the League in the pages of The Nineteenth Century and elsewhere,?!

and later, in his compartment,

he noted

down Stirling’s comments. Then, as the train left Albury, he settled down with Evatt’s recently published The King and His Dominion Governors (London, 1936) which thirty-nine years later would help persuade Sir John

Kerr to dismiss the Whitlam Government.”

In Sydney, between cases, he puzzled over Lord Wright’s judgment on behalf of the Board in James, and read it beside the two volumes of the

argument, which had just arrived from London. There he was flattered to

see his own views amply set forth. They were reflected in the argument of

Wilfred Barton for the appellant James:

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The Commonwealth was a union of people not of States. Sec. 92 is one of a group of sections which deal with the rights of citizens and these sections protect the political rights, the financial rights, and trade rights, the individual liberty and religion, and equal rights, wherever he may be, of the individual citizen .. . The word ‘intercourse’ is very significant because in the ordinary acceptation of words the States do not have intercourse but indivuals do, and it is the intercourse of individuals that

is there protected.?>

Barton also explicitly quoted Dixon’s dissenting judgment in Gilpin. And

Menzies, too, arguing as Attorney-General for the Commonwealth against it being bound by section 92 (and thus against the appellant), backed Dixon’s interpretation: ‘Sec. 92 was concerned not with freedom of trade as an abstraction but with freedom of trade as something in which the individual as such had a concern and in which he was protected’. And he attacked the Evatt interpretation ‘that absolute freedom is the perquisite of trade and commerce

as a whole under sec. 92, and is not ascribed to individuals in

relation to that trade’. As Menzies put it,

The first difficulty this view produces is that of determining whether the effect of the legislation in question will be to diminish or control the volume of inter-State trade. If the test is whether the act has a tendency to interfere with inter-State trade then the answer to the question must depend upon an economic survey of the problem in order to determine whether the tendencies in the act are of a kind calculated to facilitate

inter-State trade or calculated to retard it. These last two tests lead to

complete confusion and cannot possibly afford a working guide to those whose task it is to interpret the Constitution.?*

As for their Lordships, however, they never directly addressed this crucial question as to whether the Dixon or the Evatt interpretation was more persuasive, despite many words spent on the possible and impossible connotations of ‘freedom’. They did, however, compliment Menzies, ‘the merit of whose admirable argument is in no way diminished because it has not succeeded’, thus appropriately summing up a confusing judgment.”¢ In June of the following year Dixon would write to Latham regarding section 92 cases that I think it is almost clear that we must proceed by arbitrary methods. No doubt there will be limits but political and economic considerations will guide the instinct of the Court chiefly. In time the thing will work back

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to some principle or doctrine but what it will be I am unable to foretell. At present I feel frightened of the use of any logical ideas or conceptions of my own because I am only too painfully aware that my methods of thought are hopelessly opposed to those which so far have been authoritatively adopted.”

The day after he wrote this, during the hearing of another section 92 case, the Riverina Transport Case,?* he would be silent the entire day ‘owing to my complete inability to know how sec 92 now stands or what criterion to apply’.?? Regulation of interstate transport in this instance would be held by the Court not to violate section 92, particularly as there was no proven obstruction to commerce ‘as at the frontier’, though the legislation in question certainly discriminated against interstate commerce. Dixon would go along with the Court on the basis of previously decided cases (in which he had dissented) because of the Privy Council’s specific endorsement of the conclusion of one of them (involving a narrowed understanding of the activities prohibited under section 92), even though it was a conclusion with

which ‘I remain quite unable to agree’.>° His judgment in another section 92 case, however, delivered on the same day (29 July 1937) would be a dissent.

This case, Hartley v Walsh, involved a Victorian compulsory marketing scheme that, as Dixon said, was so blatantly protectionist as ‘entirely to forbid inter-State trade between growers and packers in unpacked dried fruit’?! A comparison of the several judgments in this case reveals the confusion that reigned in the wake of the Privy Council’s various pronouncements on section 92 in James v Commonwealth (1936) and an earlier case,

James v Cowan.*

The Perth sittings in late September of 1936 prevented him from read-

ing his highly theoretical paper on ‘The Statute of Westminster, 1931’ at the Law Council of Australia’s convention in Adelaide. When he reached Adelaide at the end of the month he learned from W. Anstey Wynes, barrister and author of Legislative, Executive and Judicial Powers in Australia

(1936), that nobody had understood it except Wynes and Arthur Campbell,

Bonython Professor of Law at the University of Adelaide. Among other things, the paper demonstrates that while ‘an excess of power is void ... because it is an attempt to do what the law does not authorise’, the Statute

of Westminster paradoxically enabled ‘the Dominion legislatures to transcend their own powers’, and that while there were restraints upon its effect in Canada and Australia, it gave to the legislature of the Irish Free State ‘a positive power to amend its own power of amending the Constitution so as to extend it’*—an extraordinary situation, apparently unappreciated by the

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audience. The Statute had not at this stage been adopted by Australia and

Dixon’s paper may have been intended to caution against doing so.

During Dixon’s summer vacation at the beginning of 1937 he was

reading the Odyssey, Horace’s Odes, and the sixth volume of Holdsworth’s

History of English Law. He was also concerned about the deteriorating health of Sir John Higgins. Dixon’s father had died on 26 June 1929, his mother on 18 June 1934, and Higgins had become something of a father figure. On the afternoon of 22 January Dixon went to his Toorak house on request. Sir John’s wife had died in 1932 and he was living with his sister. Having no children of his own, he wished to discuss his dispositions, including bequests of a thousand pounds each to Dixon’s four children (the youngest, Anne Helen Owen Dixon, having been born on 20 April 1934). To Dixon he was leaving his substantial library. Other matters were discussed too. As Dixon rose to go, Sir John got up and walked to the door, then ‘appeared to stagger, I caught him & put him in a chair where I saw that he had changed colour & obviously had a real heart attack. I summoned the nurse who gave him brandy’.* Sir John was to die in October. Dixon now began looking for a bigger house, as ‘Beechfield’ could no longer accommodate his own library let alone Sir John’s. In April he would pay £4750 for ‘Yallambee’, a single-storeyed, substantial late Victorian house on large grounds at 4 Higham Road, Auburn (now gutted but still there), once owned by James Crotty, prospector and principal shareholder

in the Mount Lyell Mining and Railway Co. Ltd. ‘Yallambee’ included a

separate building close to the house, consisting of a spacious room with a small theatrical stage at the northern end and a little alcove at the south-

western end in which most of Dixon’s subsequent judgments would be

written. He could see that this building would make an excellent library, which was one reason for choosing ‘Yallambee’. They would move in during July.25 Margaret Connor, who visited the house on numerous occasions

through the 1950s, recalls the life the Dixons led there:

Ic was a big, sprawling Victorian home, solid and enduring. front steps led to a porch and thence into the front hallway, the formal rooms opened, the drawing room (to which the withdraw after dinner) on one side and the dining room on

The wide off which ladies did the other.

These rooms were not the family rooms, however, and were used only

on formal occasions. The sitting room in daily use was opposite the front door, screened from the entrance hall by a velvet curtain. It must have had windows, but I don’t remember them. I remember only that it was a snug room, with a fire blazing, casting a glow on dark polished

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wood. Opposite the fire was a lounge, where Lady Dixon sat with the tea-tray in front of her, and there was a leather armchair where Sir Owen

sat, his long legs crossed so that one foot paddled the air while his hands waved as he talked, or reached out to take hold of the hand of one of his

daughters. Because of the friendship that had grown between me and Anne, I came to spend many hours in that simple, cosy room. If Sir Owen, who spent a good deal of time in his study, were there, he would talk, often about what he had just been reading, and it was obvious that

the ritual of tea-and-scones by the fire with his family was very dear to

him. It was his relaxation.°*

The sitting room was illuminated only by a skylight and was somewhat draughty, having doors that opened into several passages. Though Alice Dixon supervised the meals and the ritual teatime (using an autotray), she never cooked. Most upper-middle-class families then had servants. During World War II ladies like her would have to discover their own kitchens, but

by then she would be in Washington as an ambassadorial wife, domestic

staff at hand.

Through mid-February of 1937, with the new school year under way, Dixon helped the boys with their studies (‘Lectured Ted on his work & made him re-do his Latin’’) and wrote his judgment in West’s Case, finally completed at 3 a.m. on the 21st.>* Here the Court held that a New South

Wales tax could apply to a federal pension, though Dixon and Evatt argued

that it could not do so in a discriminatory way (which they agreed was not the case in this instance) since the Constitution by its federal nature implicitly denied the States and the Commonwealth the right to impose discriminatory burdens upon each other’s instrumentalities.

This was an instance of Dixon’s reading down of the Engineers’ Case of 1920.°° One should not overstate the matter. He did nothing towards

reinstating the old doctrine of the reserved powers of the States. He took the

Engineers’ Case to be a valid check not only to that doctrine, but to the excesses (as he saw them)

of the doctrine of the ‘implied immunities’

of

Commonwealth and State government instrumentalities. Yet it was evident to some constitutional lawyers that one could not read a federal constitution for long without considering its implications, including implied immunities. Sir Robert Garran commented in 1923, ‘No rule of construction can ignore

the truth that what is necessarily implied is as much part of the Constitution

as that which is expressed; the only question is, whether the implication is necessary.’4° In late 1930, his second year on the Court, in his judgment in Australian Railways Union v Victorian Railways Commissioners, Dixon had written

that, as he read it, the central principle in the Engineers’ Case was that

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unless, and save in so far as, the contrary appears from some other provision of the Constitution, or from the nature or the subject matter of the power or from the terms in which it is conferred, every grant of legislative power to the Commonwealth should be interpreted as authorizing the Parliament to make laws affecting the operations of the States and their agencies if the State is not acting in the exercise of the Crown's prerogative and if the Parliament confines itself to laws which do not discriminate against the States or their agencies.

He added that During the argument of this case it appeared that the judgment of the majority of the Court in the Engineers’ Case ought not to be understood as laying it down that over a State the power of the Parliament is as full and ample as over the subject and allows the same choice of remedies, measures and expedients to secure fulfilment of the legislative will.*'

These exceptions and reservations, which he understood to be implicitly contained in the Engineers’ Case decision, were now to be elaborated in his judgment in West’s Case, where he boldly affirmed the validity of implications: Since the Engineers’ Case a notion seems to have gained currency that in interpreting the Constitution no implications can be made. Such a method of construction would defeat the intention of any instrument, but of all instruments a written Constitution seems the last to which it could be applied. I do not think that the judgment of the majority of the court in the Engineers’ Case meant to propound such a doctrine. It is inconsistent with many of the reasons afterwards advanced by Isaacs J.

himself for his dissent in Pirrie v McFarlane. Indeed, he there refers to

‘the natural and fundamental principle that where by the one Consti-

tution separate and exclusive governmental powers have been allotted to two distinct organisms, neither is intended, in the absence of distinct

provision to the contrary, to destroy or weaken the capacity or functions expressly conferred on the other’. He adds: ‘Such attempted destruction or weakening is prima facie outside the respective grants of power’. There

is little justification for seeking to find in the Engineers’

Case

authority for more than was decided.*? He then repeated the two reservations he had mentioned in the 1930 case: no Commonwealth legislation should affect ‘the exercise of a prerogative of the Crown in right of the States’, and federal Parliament would not seem to

be authorised ‘to enact legislation discriminating against the States or their

agencies’.*? In 1947 he would add a third reservation: that the States could

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not tax the Commonwealth in respect of the exercise of its powers and func-

tions.“ This implied immunity he would regard as mutual, as seen in his judgment in the State Banking Case of 1947 where he would provide his most extended consideration of the implications of the federal compact.‘ Latham, by contrast, tended (as Isaacs had) to pay attention to the letter of

the Constitution and not worry too much about its federal ‘spirit’. At this time Dixon was President of the Wallaby Club having been elected in 1936. It was customary to lead a presidential outing, but no predecessor had organised a walk as spectacular as the Easter outing Dixon led in March 1937, and it became a club legend.** Eight of them—six members, the driver and a guide—travelled in an eight-seater bus leaving Melbourne at 4.15 p.m. on Thursday, 25 March, stopping for dinner at a hotel in Seymour,

then pushing on through Wangaratta and Bright to reach Harrietville in the Victorian Alps at 1.30 a.m. The licensee at the hotel had expected them at 11, ‘was half drunk &

received us discourteously, suggesting at first that we

were too late for our rooms. Hotel very off.’ It took all of Dixon’s ‘legal tact’ (as the Club’s History puts it) to secure beds the landlord claimed had

been given to others without seeming to make a liar of him. Next morning they set out by foot from Harrietville (elevation 1700 ft) for the stateliest and second-highest mountain in Victoria, Mt Feathertop (6307 ft). A climb of

six hard miles through heavily timbered country saw them at the Bungalow

(5400 ft) by 2.30 p.m., whence they set off for the barren summit, reaching it in brilliant sunshine. Today, with the development of the region for skiers,

the ascent of Feathertop is no longer as difficult as it was in the 1930s.

The night was spent back at the Bungalow, then after breakfast Dixon led them all out in a howling gale for Hotham Heights. Wallaby walks were supposed to be sedate affairs—walkers attired in suits, conversing as they

went. Up here they were all in suits but no one could hear himself talk let alone his companions. The point was the vistas on every side and the rugged exercise. Conversation came a poor third. After supervising their lunch at the Razorback Hut Dixon struck ahead with the Vice-President, G. G. Jobbins,

reaching the Alpine Road at 3.30 p.m. When the rest turned up Dixon led them back to the Bungalow, or more accurately forged ahead across the top

of Mt Hotham to such effect that he had time to take a bath before his com-

panions returned.**

That night a wild storm battered the Bungalow, and on the morning of

the 28th the mountains were covered in snow, thickening by the minute.

They all hoped the President would call an off-day. Instead he led them out

in ‘a blizzard’ (his own description), trusting it would clear. By the time they reached the Diamantina Hut the sun was out and the mountains dazzling

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white against the skies. They lunched at the St Bernard Hospice, south-west of Mt Hotham, and struck out along the Dargo Track, returning to the Hospice for the night. On the morning of the 29th, while the others went

south along the Dargo Track, Dixon and Jobbins walked the 14 miles north to Harrietville where they picked up the driver and the bus, and returned to the Hospice in the evening. Next day they left for home. Dixon was dropped off at ‘Beechfield’ at 7 p.m. in time to have dinner and read a chapter of A Tale of Two Cities to the children.*? Someone in the Wallaby Club composed an epigram in his honour: Fiat justitia! We'll gladly ramble With Mr Justice High Peregrinator; Long days be his by pleasant paths to amble, Vir sapiens, sodalis, ambulator.

Nil tetigit quod non ornavit.°

Just before departing on this trip Dixon had read a paper to the Mel-

bourne Law Students’ Society on ‘Causation and the Law’, which reflects

his sceptical cast of mind better than anything else he ever wrote. This address survives only in the form of his manuscript notes and a précis by a

member of the audience, John Kinnear. It casts doubt on the most fundamental of legal assumptions, causation. Dixon took as his text a statement by Sir Edward Fry who was refusing to define ‘proximate cause’: ‘The doctrine

of causation involves much difficulty in philosophy as in law’.*' From Thales

to Plato, Dixon pointed out, from Aristotle to today, ‘cause’ has been a matter of philosophical dispute. Francis Bacon had addressed the issue as a lawyer, offering the maxim ‘In jure, non remota causa sed proxima spectatur’

—‘in law, the proximate, not the remote, cause is to be looked to’, since ‘It

were infinite to judge of the causes of causes’. Bacon had given no examples in tort but one in crime (homicide). Dixon observed that at common law the difficulties with causation had only arisen in modern times as the law

became less satisfied with enquiring into external events and facts and more

interested

in culpability, responsible agency and grounds of liability.”

(Courts of equity, on the other hand, in developing remedies for unconscien-

tious dealing, found little or no need to rely on cause.) He cited an interest-

ing eighteenth-century example of a ‘causation chain’, and other cases

from the nineteenth century. But these, like most cases since, had proceeded

in blithe ignorance of the metaphysical and epistemological problems of causation of which philosophers had become increasingly aware as they enquired into the relations of appearance and phenomena to reality and examined

with logical rigour the grounds and validity of induction. He

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referred to, and made passing glosses on, Descartes (referring to Descartes’ ‘distinction of mind from body’) and Malebranche, Leibniz, Hume (referring to Hume’s ‘radical scepticism, discontinuity’), Kant, Mill (citing the view

of ‘phenomena as causes, volition merely an antecedent’), F. H. Bradley (mentioning Bradley’s notion that ‘Separate “causes” may have sufficient

“truth” to be practically reliable, but cause and effect are irrational appearance, not reality’), and quantum theory. Lawyers, Dixon told his impressionable young audience, are sublimely ignorant of the epistemological

abysses they skirt. Each and every kind of causation—and ‘Immediate’,

‘Direct’,

‘Proximate’—‘are

illusory

in point

he listed

of logic’,

he

insisted, ‘“broken links” or worse’.

The entire address is a reflection of the speaker—acute, sceptical, real-

istic. Despite an occasional tendency to pessimism, Dixon was in most respects a realist, his conclusions on any aspect of life generally proceeding

from observed behavioural phenomena or the like. He gave Ovid the last word: ‘Causa latet, mala nostra patent’—'The cause lies hidden, our evils lie

exposed’.** He would not allow the Law Students’ Society to publish the

address,°> perhaps thinking so sceptical a paper could seem controversial

coming from a Justice of the High Court, though he would end a later, pub-

lished speech by effectively endorsing Pontius Pilate’s profoundly sceptical

and philosophic question, ‘What is truth?’5* His scepticism surfaces in a

number of cases.°” The following year he submitted a more conventional

paper to the Law Students’ Society on the subject of ‘De Facto Officers’, this time for their journal.** At the beginning of April Starke, who had suffered an attack of angina in February and was still away, submitted a judgment in Nassoor’s Case (bankruptcy) which criticised his brother justices for their ‘insufficient consideration’ of the case, directing a reargument.*? Dixon was furious, telling Latham that Starke ‘was irrational his inhibitions had gone & his old obsessions governed him. Ought not ever to come back to bench if his judgt were published’. After thinking about it overnight he then told Latham on the following morning that he was prepared to deliver Starke’s judgment and, if

the others agreed, say that they all thought the claim to direct a reargument

was without foundation; but that he was also prepared, alternatively, to

ignore Starke’s judgment as irrational and not deliver it. On 9 April he

lunched with Evatt who, having been particularly attacked, wanted Nassoor reargued to obviate publication. Although in Dixon’s view ‘no case was less suitable for reargument’ and it was ‘unjust to the parties’ he went along with this, as Evatt had the right ‘to say what should be done to protect himself’. After Court on the 12th they all discussed the matter, Rich urging that Starke’s judgment be suppressed. Latham would not have it, so the case was

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reargued.*' Interestingly, Dixon went on to decide (in late July) that his judgment in Nassoor, even after the reargument, was wrong. He rewrote it.

In the closeted world of the High Court Latham’s manner was be-

coming increasingly familiar and he regularly dropped his guard. A ‘much talking judge’, as Sir Zelman Cowen has observed, in private he ‘talked incessantly and mostly about himself’.6? Dixon had little respect for his

judicial abilities, commenting on his ‘great ignorance’ in one case and on

how ‘extremely stupid’ he appeared in another,“ but he was more critical of Latham’s personality—more so even than he was of Starke’s. There were qualities of sensitivity and honour about Starke which Dixon respected, even admired. In fact his sense of honour contributed to his intolerance of others’ frailty and made him hard to work with. He exercised an independent judgment in most cases, preparing his own reasons in a tight and lucid style. His knowledge of the law was extensive.*° Latham (who had been Starke’s pupil on coming to the bar) was not his equal in any of these respects. Politics seemed to have coarsened his sensibilities. Latham’s comments over the trial

of Seaforth Mackenzie were an example of this. August of 1936 had seen the trial in Melbourne of Mackenzie, former Judge of Appeal at Rabaul and from 1922 Principal Registrar of the High Court, a position within the

Attorney-General’s department. Mackenzie had run up huge debts to the

Commonwealth on plantations bought in New Guinea, and had been charged with forging and uttering seals of the High Court. He was con-

victed and sentenced to four and a half years’ imprisonment. Latham told Dixon that as Attorney-General he had not removed Mackenzie because ‘his offences consisted only of (1) living with a woman not his wife “which might happen to any one” (2) failure to pay his creditors and the usual consequences, which was common to the greater part of the service’.*” There is no comment—in Dixon’s diary these quotations don’t require comment. For Dixon there were absolute moral standards. Without them, all was corrup-

tion and chaos. He was extremely kind, and although he must often have

found other people’s efforts inadequate it was not his habit to criticise or upbraid. He was very accepting of the deficiencies of those around

him, but he became critical when he was presented with morally culpable behaviour—arrogance, the corruption of power or a lack of proper diligence. There is much significance in those he admired: they were inevitably persons

with a strong sense of duty. Sir Leo Cussen and Sir Wilfred Fullagar were

the two Australian judges he most admired, men with a profound sense of

duty and high standards of personal conduct. One evening during the Perth sittings of September 1937 Latham ‘nearly exasperated me with much talk of the corrupt political world the sickening atmosphere of which did not appear to offend his sensibilities’.

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Three nights later they dined with Walter Murdoch, Professor of English at

the University of Western Australia. Numerous indecent stories were told by Latham and ‘the evening was ill spent. Murdoch was confirmed I could see in an opinion that lawyers were low brow’.® The Artur Rubinstein concert at University Hall on 5 October (Schumann, Debussy and Chopin) was at least better entertainment,” though Dixon would have been there on somebody’s invitation. His presidency, over many years, of the Melbourne Philharmonic Society was a family joke—he had no ear for music. To cap a bad week, news came the following day from Alice that Sir John Higgins had died. Small things could trigger depression in a state of overwork. On 4 November, in Melbourne, after a day on the bench marked by a public conflict of views between himself and Starke, and Latham’s very ‘political’, proCommonwealth statements during the hearing of Radio Corporation v Commonwealth,” Dixon was looking forward to seeing his barrister friend T.S. (‘Sammy’) Clyne whom he had invited to tea through Alan Brooksbank. However, due to Brooksbank’s ‘mess up’ or Clyne’s ‘indiffer-

ence’ there was no answer, ‘another example of the hopeless condn I have

attained’.”! Three weeks later he made the mistake of confiding his depression to Brooksbank who seized the chance to air his own problems—

‘gathered from him that he felt rather an encumbrance: foolish talk on my part: overworked’.”? It is odd that Dixon thought Brooksbank would under-

stand, for in May of 1936, during a walk from Bondi to Rose Bay, Brooksbank had badly upset him by recounting how some employee of the Court ‘had calculated the huge sum drawn by Isaacs from “the taxpayer”’. The comment had forcibly brought home to Dixon ‘how my occupancy of this dreadful judicial post is regarded by the common man’.” But it was Latham who most depressed Dixon, even though the atmosphere on the bench ‘was more pleasant for his presence’ in consequence of his affability.”* At a dinner party at the home of the Chief Justice of New South Wales, Sir Frederick Jordan, Latham ‘dominated the conversation’, dragging in ‘a reference to Roberts case, the sadist murder’ in which there had been an acquittal, remarking, in the presence of women including the American wife of the Chinese Consul, ‘that “all the ladies were reading it”! However, Latham ‘went down’ well with Dudley Williams KC, Dixon noted

disapprovingly.’ Three days later, on Rich’s seventy-fifth birthday, Latham

named Williams as Rich’s most likely successor.”6 Probably the worst evening Dixon ever spent in Latham’s presence was on 26 November 1938, in Sydney, when he dined as one of Latham’s party

in the Kent Room of the Hotel Australia. Guests included New South Wales

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Justices Reginald Long Innes, Colin Davidson, Kenneth Street, Allan Max-

well and Milner Stephen, as well as Rich and McTiernan. From what Dixon could overhear (he was two places to the left of Latham), Latham’s conver-

sation ‘included much propaganda ... to spread the view that he had reformed the Court: the great point being that we used to short circuit counsel & that he insisted on full argument: also he dissociated himself

from particular decisions’. It was ‘a disgusting evening for me’, the Kent

Room ‘very vulgar: ditto food’, Latham ‘obviously vain & hostile: my end of the table reduced to low jokes & stories no doubt suited to our inferiority.””” (He enjoyed Wilbur Ham’s comment that Latham was ineffable and ‘wore ermine in his bath’.’*) A few days later the Chief Justice seemed to be ‘fighting for the husband’ in a divorce case and ‘taking rather a low attitude over sexual relations’. Standards everywhere were sliding. After court that day Dixon took a long stroll through Centennial Park and down Oxford Street, noting closely the squalor produced by eight years of economic depression, the looks in the eyes of those idling about the streets, and the tenor of their conversation. ‘The conditions of life’, he noted, ‘seemed to me very bad and to be producing a very low and dangerous class of youth and young women’.”” During 1938 and 1939, as war neared, his contact with the worlds of industry and politics expanded. Dixon knew the British High Commissioner, Sir Geoffrey Whiskard,® and most of the foreign diplomats including the

Dutch, Italian, Japanese and American Consuls.*! In mid-April 1938 he

travelled home to Melbourne with Essington Lewis, Managing Director of BHP (shortly to become its Chief General Manager), who in 1940 would be appointed Director-General of Munitions.®? He was increasingly friendly

with Harold Winthrop Clapp, Chairman of the Victorian Railways Commissioners and designer of Australia’s first air-conditioned, all-steel express

train, the new Spirit of Progress, which ran between Melbourne and Albury.®? The following year Clapp would be put in charge of the nation’s

aircraft production. And of course Dixon was close to Robert Menzies,

soon to be prime minister. These contacts led inevitably to others, with the

consequence that after the outbreak of war Dixon would seem, in the eyes

of government and industry, an appropriate choice boards connected with the defence effort. He liked and admired Clapp, who had overseen important lines of the New York Central, Pennsylvania, Railroad Companies before being appointed Chairman

to head

important

the electrification of and Southern Pacific of the Victorian Rail-

ways Commissioners in 1920. The two had probably met soon after, in the

course of some litigation involving the commissioners. Clapp had revitalised

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the Victorian Railways but by the late 1930s he had turned his mind to defence production and aircraft, topics that from mid-1942 would directly concern Dixon too. Calling in at ‘Yallambee’ on 22 May 1938, Clapp voiced

his fears of war and his concern over Australia’s unpreparedness, repeating

himself three weeks later as he and Dixon departed from Melbourne on Clapp’s Spirit of Progress.** They would sometimes take tea together in Melbourne, as on 12 October when Clapp reported his latest failure to persuade Canberra to increase defence production.** His campaign would pay off, the Government putting him in charge of aircraft construction with effect from 1 July 1939. In Dixon Clapp was not talking to a cloistered jurist but an interested friend whose attention in 1938 and 1939 was increasingly

on things political. This can be seen by reference to the notes Dixon made on two dinner parties in Sydney on consecutive days in early August 1938, when a German

invasion

of Czechoslovakia

seemed

briefly, by the Munich agreement Dixon’s dining circle was addressed politician, founder of the Australian cate for free trade, socialism and a

imminent

(it would

be

forestalled,

the following month). On 5 August by Ronald (‘Kim’) Mackay, lawyer and Institute of Political Science, and advofederal Europe. Mackay, by this time a

member of the British Labour Party, had been living in England since 1934 but was back in Sydney for a visit. In his address to the dining circle he

preached appeasement, or in Dixon’s words ‘urged immediate negotiations

with throwing down of trade barriers & concessions to Germany: blamed

mistakes of conservative govts’. Some in the audience were sceptical, among, them Stephen Roberts and Eben Waterhouse, respectively Professors of History and German at the University of Sydney. Both challenged Mackay, arguing that Hitler could only understand force, Roberts wondering why he had not yet occupied Danzig and Memel. The parodic tone of Dixon’s reporting here (‘immediate negotiations’, ‘throwing down of trade barriers’,

etc.) shows what he thought of Mackay’s prescription for peace.**

More to his liking was what he heard the following night at the dinner Rich gave for young Enoch Powell, the new Professor of Greek at Sydney and the youngest man ever appointed to an Australian university chair. It was a small party, at the Australian Club—Rich, Powell, Alan Brown (Fellow of Worcester College, Oxford), the physician Alan Holmes 4 Court, A. C. Gain, and Dixon. Powell told Dixon of the work he was doing on the manuscripts of the ancient Welsh legal codes, saying he was tempted to try for a

chair of Celtic studies. Dixon thought him an ‘Enthusiastic scholar’, ‘Pragmatical’, ‘Clear about a German war, but apparently full of guts’.8” Powell would resign from his chair on the outbreak of war to join the British Army as a private in the Royal Warwickshire Regiment.

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There were few cases of high constitutional significance from late 1937 to early 1939. In Ex parte Lowenstein**—where he was joined in dissent by Evatt—Dixon, consistently with the later judgment of his Court in the Boilermakers’ Case (1956),® held to a stricter interpretation of the separa-

tion of powers than did the rest of the Court, considering section 217 of the Bankruptcy Act 1924 unconstitutional in that it empowered judges to for-

mulate charges against persons appearing before them, an executive function. In R v Poole; ex parte Henry (No. 2)” his judgment includes what is regarded as a definitive pronouncement on the interpretation of severability clauses. Among the common-law cases, his judgment in Thomas v The King?" is a fine example of logical powers applied to the question of mens rea (criminal intent) in an interesting case of bigamy. But the most important common-law judgment he wrote in the late 1930s was that for a rev-

enue case, Sun Newspapers Ltd, the first of several in which he analysed in a fresh way the concepts of capital and revenue in relation to deductible

outgoings, the analysis extending to capital and income in relation to assessable income.” The Sydney Sun had paid £86 500, which they claimed as outgoings incurred in the production of assessable income and wished to deduct from that income, for a controlling interest in a competitive newspaper, the World, which was about to close down and which they agreed to close down, the agreement stipulating, inter alia, that those to whom the moneys were paid would not, for three years, produce a new and cheaper newspaper, which they had had in contemplation. Rich had found that the expenditure was in the nature of outgoing capital within the meaning of the relevant Act and was therefore not deductible from assessable income, and an appeal against his decision was heard by Latham, Dixon and McTiernan. It should be noted that Rich’s judgment had been substantially written up for him by Dixon, a comic ingredient which must have delighted Dixon beyond words.”? In any case, in the judgment he wrote following the appeal he pointed out that The distinction between expenditure and outgoings on revenue account and on capital account corresponds with the distinction between the business entity, structure, or organization set up or established for the earning of profit and the process by which such an organization operates to obtain regular returns by means of regular outlay, the difference between the outlay and returns representing profit or loss.

It was difficult to find a ‘standard by the application of which expenditure or outgoings may be referred to capital account or to revenue account’, the

courts generally relying

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to some extent upon the difference between an outlay which is recurrent, repeated or continual and that which is final or made ‘once for all’, and to a still greater extent upon a distinction to be discovered in the nature of the asset or advantage obtained by the outlay. If what is commonly understood as a fixed capital asset is acquired the question answers itself. But the distinction goes further. The result or purpose of the expenditure may be to bring into existence or procure some asset or advantage of a lasting character which will enure for the benefit of the organization or system or ‘profit-earning subject.’ It will thus be distinguished from the expenditure which should be recouped by circulating capital or by working capital.

And he demonstrated that ‘recurrence is not a test, it is no more than a consideration the weight of which depends upon the nature of the expenditure’. Nor was ‘the lasting character of the advantage . . . necessarily a determin-

ing factor’. Three matters had to be considered:

(a) the character of the advantage sought, and in this its lasting qualities

may play a part, (b) the manner in which it is to enjoyed, and in this and under the former head part, and (c) the means adopted to obtain it; periodical reward or outlay to cover its use or commensurate with the payment or by making a

ment so as to secure future use or enjoyment.™

be used, relied upon or recurrence may play a that is, by providing a enjoyment for periods final provision or pay-

He decided, as did Latham and McTiernan (and as had ‘Rich’, of course),

that the expenditure in the present case was of a capital nature within the

meaning of the relevant Act and therefore not deductible from assessable income, but in writing his judgment Dixon, unlike his brother judges, had developed the law. His logical method, which could produce such impressive results in common-law and constitutional cases, was always evident in his judgments, though in Starke’s view (and here he was surely correct) faith in reason and logic could be misplaced in cases involving complex issues of human nature: Dixon sent me his judgment which I think is a delightful exhibition of his logical method at which I often scoff when applied to human conduct and action. He takes the presumption of legitimacy and founding on its strength reaches the conclusion that the evidence is not strong enough to displace it. And all this in the face of the undoubted position that the legitimacy of the child is not in issue in these proceedings either in fact or in law.”

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Nor would Dixon’s logical, conceptual way of thinking always prove fruitful in its application to wider human problems beyond the law—in Washington, for example, or in Kashmir. On Christmas eve of 1938, in the Melbourne Town Hall, he presided

at the Philharmonic Society’s performance of Handel's Messiah. Sitting

there at the front of the audience, flanked by State dignitaries, part of his mind turned on a new source of worry, Franklin’s keratoconus, or conical cornea, a condition little understood but about which theories abounded. It preoccupied Dixon intensely through 1938 and early 1939 as he searched for explanations and solutions. Back in January he had been told by Melbourne eye specialist Dr Mark Gardner that it was likely that Franklin’s myopia was not due to excessive reading but to deformed cornea, and that

if this were confirmed Franklin should be taken to Germany for treatment.** Conical cornea was confirmed at the beginning of February by Dr Archie

Anderson who also thought Franklin should be taken to Europe. In any case contact lenses must be fitted at once. This was done ‘quite successfully’ the following Monday by Dr Goetz of Zurich, in Melbourne at the time.°” Goetz

told Dixon that Ringland Anderson, Honorary Ophthalmic Surgeon at the

local Alfred Hospital, was the only one in Australia interested in conical cornea. The two best specialists were in Halle and Kiel.** That night Dixon continued reading to Franklin from Virgil and from Sophocles’ Philoctetes— it had become habitual with him at the beginning of each school year to read to the boys their prescribed texts for English, Greek and Latin, but this

was Franklin’s matriculation year and particularly important. A family

friend, Severin Woinarski, was employed as his tutor in classics.” In early April Dixon was advised that the Zeiss contact lenses Franklin was wearing would not be satisfactory for long because they were not shaped for conical cornea. Ideally, a cast for each eye should be taken and the lenses made up from them.' This could not be done in Australia. He now knew that he would have to take the boy to Europe, preferably to Germany, but that the condition was relatively stable and the present contact lenses would suffice for the time being. Then in July he learned from Mark Gardner, who was visiting London, that he had seen the top specialist there in the making of contact lenses from casts, Dr Josef Dallos, and a specialist in Franklin’s condition, Dr Ida Mann, later Professor of Ophthalmology at Oxford and, in the 1950s, Ophthalmic Consultant to the Western Australian Government. Both supported the idea of a visit. By September Dixon was calculating whether Franklin, if he matriculated at the end of the year, might secure admission at Oxford in August 1939 after having ophthalmic treatment in Europe. He talked to the young

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Alan Brown with whom he had recently dined in company with Enoch Powell. Brown, an Australian, had studied at New College, Oxford (Vinerian Law Scholar, 1935) and was now Fellow and Tutor at Worcester College. Brown told Dixon that a man could get by at Oxford on £400 a year, needed £500, and could enjoy ‘every advantage’ on £600, but that Worcester would scarcely do for Greats, recommending New College ‘where they had in effect installed a matron’.? At the end of November Dixon talked to Latham about taking Franklin ‘home’ next year? On 16 December Franklin won the prize for English at Melbourne Grammar. He had passed in all his other subjects, too: Greek, Latin, English, geography and French. Meanwhile Evatt, in America, was searching out the latest learned articles on conical cornea, a parcel of these arriving at ‘Yallambee’ on 29 December.* January normally meant a stay at Toolangi but in 1939 there were

bushfires all around it—seventy-one lives were lost in Victoria—so the

Dixons stayed home. This was the month Alan Brooksbank announced to the Dixons his engagement to Marcia Dunn, which meant Brooksbank’s resignation as associate soon afterwards.* It was the month Alice’s mother

died. It was the month Starke received his KCMG—in Dixon’s view a ‘kindly

experiment’ on the Government's part ‘in cardio-psychotherapy made at the instance of Dr W. A. Watt’ (former Premier), the joke being that Watt had suffered a stroke after his most recent rejection of a similar honour and that Starke might reject it too, with similar after-effects.’ It was the month T. S. Clyne became a County Court judge, to Dixon’s regret. It was the month

Menzies urged Dixon to take Franklin to Europe—there would be no dif-

ficulty. It was a month of ailments, injected haemorrhoids, sinus headaches, depression.” Comic relief was provided on 25 January when a man named Sayce, whom Dixon had once met while riding, and ‘Obviously suffering from delusional insanity’, walked into his chambers to reveal a saga of persecution by wireless rays, prussic acid and other devices at the hands of conspirators including a well-known Melbourne radiologist, the Governor, the Toorak

establishment, and ‘Tammany’. ‘I listened gravely’, Dixon wryly noted, ‘8& advised him to avoid consulting all public authorities & to collect further data’.® Latham became patronising in early February, adverting to Dixon’s ailments and suggesting he not fly down that month for the Tasmanian sittings. ‘You have if I may say so’, he remarked, ‘been at home too much & it wd perhaps be as well for you to have a break’. Dixon, still recovering from Dr Morris’s injections, said he wanted to go, then, after hanging up,

went on working in bed before reading a chapter of George Eliot’s Middlemarch to Franklin.’

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He was busy at this time, and over the next two months, with his long

and careful judgment in the final James case, which he had heard the previous October and November. This was a pair of consolidated suits for

damages by Frederick Alexander James against the Commonwealth for lost

sales in dried fruit caused by the Government’s past enforcement of legis-

lation held invalid by the Privy Council in 1936. It has been said that by applying a strict legalism to this case Dixon ‘saved the day for the govern-

ment’ by greatly reducing the amount of damages awarded,'° but that was not his aim. His purpose was to dispense justice according to law. While of little historic moment, the judgment would be among the most painstaking he ever wrote, fifty-six pages of meticulously constructed, thorough argument founded in a host of authorities running back to 1620." He was continuing his work on this a few days later when Dr Morris called in and pronounced the injections a success. Morris then let slip that

Latham had asked about Dixon’s health and ‘pumped him’. The situation,

he claimed, had been awkward, but he had told Latham that Dixon’s health was sound. Latham had commented on what a hard worker Dixon was, adding that there was no particular reason behind his question. But then he had gone on to speculate as to why Dixon was not playing tennis these days. From what Morris chose to reveal Dixon could see he had been ‘freely & critically discussed’. In as dry a tone as he could muster he told Morris he would be obliged if he would not discuss him with Latham, who had only asked after him in order ‘to find some ground for getting rid of me’ because he would then ‘get more of his own way’. Dixon’s basic objection, he added, was to Latham’s character. Then as Morris was preparing to go Dixon played a card he had been holding back. Latham, he said, had telephoned to reveal that Morris had told him about Alan Brooksbank’s engagement,

something Dixon had not mentioned to his colleagues. Latham had added

that he would find Dixon a new associate (‘probably a spy’, Dixon told Morris). As Morris was leaving, Alice came to the door and Dixon told her,

in Morris’s presence, what he had just told Morris, provoking embarrassed

apologies from Morris and causing Alice to break down. Later a ‘misguided discussion’ with her thwarted Dixon’s intention of going to bed early, capping a miserable day.'? After this he made a special point of going to Tasmania for the Hobart

sittings. By now the Court was regularly using the airlines and Dixon enjoyed flying, taking an interest in the mechanical aspects of the aircraft and noting their types and names." It was Australia’s worst ever summer

for bushfires and on the way down they flew over many of them, views out

to the horizon hazed by smoke. The Hobart sittings were normally relaxed,

the town a pleasant venue for the Court, Sir Ernest and Lady Clark inviting

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the visiting judges to Government House, and Dixon free to take scenic walks around Government House, past the works for the new pontoon bridge, and back through the botanical gardens. One evening in his hotel, at dinner, he spotted Sir Arthur Robinson, prominent Melbourne solicitor and company director, former Victorian Attorney-General, nephew of Sir Edmund

Barton and brother of W. S. Robinson (a man equally powerful in the cor-

porate world who, like Dixon, would soon be making diplomatic contribu-

tions to Australia’s war effort, but with whom Dixon would consistently refuse to have any social contact"). Sitting there with Sir Arthur was the new

Lady Robinson, née Beverley Wood—between them these two would span the years 1872 to 1997. ‘I did not “see” them’, Dixon noted superciliously in one of those epigrammatic sentences of his with its sting in the tail, ‘But

Latham did’.!5 The next day Dixon went with a party to the pinnacle of Mt

Wellington ‘where we picked out the various objects and discussed the prospects of invasion’, then at dinner he saw the Robinsons again—or rather they saw him, Sir Arthur sending an invitation for coffee by way of a

waiter. Following their coffees the three conversed in Dixon’s sitting room

until 8.30 p.m. ‘She is circa 26’, he observed, ‘he 66. The talk was of public affairs &, by me, anecdotal. She sparked upa little but—quaere?’'* In early March he booked himself and the two boys on the Strathnaver, scheduled to depart on 18 April for England. Then on 6 March (the day

Latham was elected Chancellor of the University of Melbourne) he took

Evatt, just returned from overseas, and Rich to the Australian Club for tea,

where they found Clyne and Menzies. Evatt spoke about Franklin Delano Roosevelt whom he Dixon home, telling Arbitration Court. ‘dubious about his though Dixon told

offer down.!”

had met in Washington, then afterwards Menzies drove him he had offered Clyne the position of Judge of the Later that evening Clyne dropped in at ‘Yallambee’, ability to tackle the work’, and left without deciding him he should accept. Two days later he turned the

In late March and early April the High Court sat in Sydney where Dixon finally completed his long and careful judgment in James v Commonwealth (1939), delivered in Melbourne on 6 April. Australian politics were in flux in the days leading up to his departure for London. On the 7th, the day Prime Minister Lyons died in Sydney, Dixon presided at the Melbourne Philharmonic’s performance of Mendelssohn’s oratorio Elijah. On the morning of the 13th Menzies called at his chambers to say he expected to be elected leader of the governing United Australia Party.'® This followed in short order, provoking the departure of the Country Party from

the coalition—on the 26th Menzies would become Prime Minister of an all-

UAP government.

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There was a farewell party given by Clyne on 14 April, then four days later, around noon, Dixon

and the boys boarded the Strathnaver at Port

Melbourne, farewelled by the rest of the family including Alice’s brothersin-law. They were leaving for an indefinite period, however long it took to

find a satisfactory solution for Franklin’s eye condition. The family had never been split like this. Alice, Dixon could see, ‘was very upset’, but at the request of Betty and Anne she ‘stood on the wharf until the ship turned’.'?

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ACROSS THE BIGHT and into the Indian Ocean Dixon read George Eliot’s Middlemarch to Franklin. He swam in the pool, while an instructor taught the boys to swim, and walked a measured mile each day around the decks. Latham had given him two books (a paperback full of ‘nonsense’ and something ‘childish’), but Dixon had books of his own and settled down with Timotheus of Miletus’s Persae, law books, and books on current affairs.'

In Colombo he and Franklin took a rickshaw ride by night, Ted refus-

ing. The streets were crowded and noisy, colourfully illuminated for the Buddhist festival. In Bombay they stayed at the Taj Mahal, said to be the best hotel in India, visiting the bazaars, Palm Beach, Malabar Hill. Many new passengers boarded—‘the boat is full of Indians’, Dixon noted.” Into

the Arabian Sea Ted became feverish, his father watching over him and

reading him Goldsmith’s Vicar of Wakefield after the invalid had rejected

other books. Though Dixon was patient and attentive, affectionate and caring towards his children, there was a detachment which, as Margaret

Kitto saw it, ‘seemed to bar him from too great a personal involvement or

intimacy’, and while the children ‘were obviously a very important part of his life, I had the impression that he could go into another room of his mind where they could not enter’.? They all went ashore at Aden, ‘still the same squalid town’.* At Suez they took a car 86 miles across the desert through Heliopolis to Cairo, saw the Tutankhamun discoveries, lunched at the Continental, visited a mosque, drove to the pyramids of Giza and the sphinx, rode camels, had tea on the

Nile, then took the train back to Port Said—all in one day.5 100

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Marseilles was the end of the voyage. It was Friday, 19 May, a brilliant spring day. Dixon tipped his two waiters ‘a fiver each’, others lesser amounts, disembarked and took Franklin and Ted around the same sights he and Alice had seen in 1922, before boarding the train for Paris and Dover. In the calm of the evening ‘The Rhone Valley’, he wrote, ‘looked beautiful’, night falling around Valence. After a sound sleep the rumbling wheels, the swaying, or the creaking cabinet-work woke him early, at Fontaine-le-Port just before

Melun, where the line skirts the Seine above its right bank. Stretched out in his sleeping compartment he gazed at the river, flowing ‘quietly peaceful’ in

the breaking dawn, and at a France that ‘looked lovely’, aesthetic phrases

untypical of Dixon.®

That same afternoon they were in London, welcomed at Victoria Station by cousin Colin Dixon and his wife Mary, and by Miss Carrie

Francis, an art expert and friend of Dixon’s mother who had guided the

Dixons around galleries and places of architectural interest and helped look after Franklin on the 1922-23 trip. The boys being impatient to see the sights, and Dixon feeling the need of a long walk after the voyage, as soon as they had deposited their luggage at the Cumberland they were off along Oxford, Bond and Regent streets, to Admiralty Arch, up the Mall and through the courts of St James’s Palace to Buckingham Palace, the Horse Guards parade, Whitehall, and back by Constitution Hill and Hyde Park. ‘Dined in the grill room & then to bed.”’ After fifteen years he was back in the cultural homeland again. It was not just sentiment that tied him to England. Though he was Australian-born, and even his parents had nothing more than childhood memories of England, his attachment to that country represented ‘an intellectual conviction of the value to Australia of what was noblest and best in the British tradition’.® It is a matter of permanent institutional connection and cultural memory, and easy to understand. On 24 May he took Franklin for an appointment with Sir John Parsons,

the noted ophthalmologist, who had a large practice and had done pioneer-

ing work on the control of intra-ocular pressure. His four-volume Pathology of the Eye (1904-8), backed up by Diseases of the Eye (1907), had made him a world authority, but he was old now, and after examining Franklin he could only suggest they see Miss Ida Mann. It transpired that she was on her way back from a visit to Australia, but an appointment was made for the

same day she was due to return, at the beginning of June. Meanwhile Dixon

took Franklin to Dr Donald Hunter who examined him and said no medici-

nal treatment was known to be effective. He also commented on the boy’s

back, which over the years had developed a noticeable hump, pronouncing it

‘simply a postural development’. Hunter was generally unhelpful, also referring them to Ida Mann ‘with the comment that she was a remarkable person

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who had shown English medical men that some things from the Continent which they thought “Dago nonsense” were sound’. (Ida Mann herself was English.) ‘I felt’, Dixon added, ‘that perhaps the “Dagos” might make a more

sincere effort to help the patient’. He had the impression ‘that Dr Donald Hunter was a very capable man whose eminence made it unlikely that he would ever seek to enlarge his knowledge or indeed exercise his talents in a

thoroughly responsible way’.? Such epigrammatic irony is quintessential Dixon.

On 1 June they saw Miss Mann, forty-six, ‘with “assisted” reddish black hair & may be Jewish’, ‘Very confident & no doubt competent’.

Conical cornea, she said, was the most mysterious of all eye abnormalities.

There were no known remedies. The other children might be examined for it but it was not necessarily familial. Vitamins could do no harm and probably no good. The only course was for Franklin to see Dr Josef Dallos at the Contact Lens Centre, Cavendish Square, which she had helped found. Dallos, she said, would experiment with numerous glass ‘shells’ made from casts of the eyes of other patients until he found two that were more or less appropriate, and work from there. It would be necessary for Franklin to have dozens fitted on him before the best one was identified for each eye.'° The Contact Lens Centre consisted, on the ground floor, of an outer waiting room, part of which served as an office for the secretary, and an inner room equipped with electric grinding and polishing machines, its walls covered in black light-absorbent wallpaper, all work being done under lamps. Dallos saw his patients upstairs. The method, as Ida Mann had indicated, was to find, or make from a mould, a concave glass shell approximately fitting the eyeball, then to grind and polish this to remove points of pressure discovered in trial. To this end it was taken from the eye to a grinding stone and a polishing cone repeatedly during each fitting. Dallos was a fair, reddish-haired, slight Hungarian of around forty-five. ‘He looks refined’, Dixon thought, ‘8& artistic, rather than scientific; he may be Jewish. His English is not very good’. Dallos said he did not often take casts now, and at once began calling for shells of previous patients whose eyes resembled Franklin’s. The left eye being particularly unusual, he thought he might need to take a cast from it. On each of his visits to the Centre Dixon’s senses

were acutely receptive:

The relations between the Jewish secretary 8& Dallos of implicit respect & obedience on the one hand & other. He is very temperamental & she is not the best very little trust or confidence in any of the people

were hardly those authority on the type. I should feel from Miss Mann

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downwards, but I suppose trust is unnecessary. Their job is to make contact lenses that fit & can be worn with comfort & Franklin alone can judge if they perform it."'

It is typical that Dixon should regret the absence of anyone from the space between the eminent, lofty but complacent Parsons and Hunter (and those like them amongst the English judiciary) and the clever technicians who knew not Aeschylus or even Galen. Dixon’s attitude to Jews was based on cultural preferences and views formed in earlier years. His own nature

was modest and self-contained, and he discerned in the disposition of many

of the Jews he came across something ‘oriental’ or Levantine, a tendency to the florid and slightly colourful. He noticed those examples that confirmed his expectations. He was not anti-Jewish, or anti-Arab, or anti-anyone in a racial sense. At another level it was the classicist’s preference for ‘west’ over

‘east’. Dixon’s comments on Ida Mann were ungenerous as he himself later realised; in the 1950s she became an admired

friend. In any case, Dallos

(like Ida Mann) knew his work. After a week of appointments he finally passed a particular shell, suitably ground and polished, as ‘final’ for the right eye, and it only remained to put the appropriate correction—the ‘optics’— for Franklin’s vision onto that shell. During these long and (for the uncomplaining Franklin) often painful sessions, and at other times, Dixon would visit the various law courts, see

people he knew, or buy second-hand books, Miss Francis sometimes looking

after the boys. Sir James Macfarlan, Senior Puisne Judge of the Supreme Court of Victoria, was in London and feeling lonely ‘in spite of having made many friends on his last visit, friends who had not reappeared or been

replaced’, so Dixon invited him to dine at the hotel.'? He took the boys for

a day visit to Coventry and Warwick and they were shown through the Hillman and Humber Motor Company’s factory: ‘typical mass production engineering shops. Ted was interested & Franklin horrified at human beings working in such surroundings & noise’.'* Franklin’s reaction typified his

general human sympathy.

Dick Latham, Sir John’s son, came to dinner on 7 June, at the Rembrandt, to which the Dixons had transferred. He had been Victorian Rhodes

Scholar for 1931, had graduated from Oxford with first-class honours in jurisprudence, was a Fellow of All Souls College, and practised in London. He would be a casualty of war, his aircraft missing in action on 15 April

1943. In a sense he was already a veteran, having driven a truck for a relief

society during the Spanish Civil War. He told Dixon about the ‘refugee work’ he had been doing on the Dutch-German border. He had last been in

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Germany in January. ‘The Germans were at great tension, he said, and very apprehensive, having no news or information by press or wireless. He was very adverse to Chamberlain.’'’ On the 13th Dixon took the boys into the Law Courts on their way to

visit Dr Dallos: We saw Singleton Franklin at fault, when the summary

the Court of Criminal Appeal composed of Hewart C.J. & & Hilbery JJ dealing with applications not argued by counsel. & also Ted took a dislike to them all. Their instincts were not for in fact they were pretending to know all about the cases truth was that the Registrar had supplied the Court with his & recommendation on which they were acting.'*

Frequent opportunities were taken to get to know the Law Lords. On the 14th he dined at the Inner Temple (their Grand Night) with Lords Wright and Macmillan, Claud Schuster, Permanent Secretary to the Lord Chancellor’s Office, and Ferdinand Schiller KC, Recorder of Bristol, talking also to Lords Roche and Russell and to Lord Justice Scott who introduced him to

Sir Samuel Hoare, Secretary of State for Home Affairs, ‘a most disappointing man’."” The following evening he dined with Sir James Macfarlan at the

Bath Club in company with Alfred Stirling who was now back in Britain as

Australian Political Liaison Officer attached to the Foreign Office." Stirling

had been to Germany just before the Munich crisis, and Dixon made a note of some of his observations: ‘He said the Germans spoke freely of prominent Nazis & Hitler’s lieutenants & showed no signs of fear or repression, but were keyed up & under nervous tension in relation to events’.!” Worrying about Franklin, Dixon sought out prominent medical men like Sir Thomas Dunhill, the Australian-born surgeon, to discuss the London ophthalmologists.” For the same purpose, on 16 June he travelled with the boys to Oxford after lunching at the house of Australian High Commissioner Stanley Bruce. As prearranged they met Dick Latham at Paddington Station. Latham brought with him a youngish German friend, Adam von Trott zu Solz, an ‘alleged anti Nazi who conversed with Latham mostly’,

Dixon observed. Von Trott ‘said that Germany was enormously strong, had never been stronger in her history, but that if Britain showed firmness Germany would not begin a war’.?' His trip to England was an attempt to convince the British leadership of precisely that. He had been staying with the Astors at their estate, ‘Cliveden’. This visit, like a previous one earlier in the month, was semi-official and had been cleared with Walter Hewel, Ribbentrop’s liaison officer with Hitler, but there is no doubt about von Trott’s sincerity. Five years later, with Lieutenant-Colonel Klaus von Stauffenberg and others, he would be a leading figure in the bomb plot and attempted coup

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d’état of 20 July 1944, resulting in his execution on 25 August.” That night Dixon dined at All Souls (where von Trott was also entertained), sitting between the great legal historian Sir William Holdsworth, with whom he had previously dined here in 1924, and Arthur Lehman Goodhart, Professor of Jurisprudence and editor of the Law Quarterly Review. The following day, at Oxford’s Radcliffe Infirmary, Dixon saw Professor Hugh

Cairns, the object of this excursion. Cairns, a neurosurgeon,

was from Adelaide (born in Port Pirie, Rhodes Scholar 1917), who in 1937 had become the first Professor of Surgery at the new medical research school endowed at Oxford by Lord Nuffield. He assured Dixon that Ida Mann

could be relied on. Dixon asked about specialists in Germany, by which he seems to have meant Germans as distinct from German Jews, whereupon

Cairns pointed out that few good ophthalmologists there were not Jews, and

in any case ophthalmology was still good in England. However, he would

write to a specialist in Zurich. Dixon then went to lunch at the house of

Robert W. Lee, Professor of Roman-Dutch law and Fellow of All Souls, one of two luncheon invitations that had come his way the previous night, the other being for the 18th at the house of Arthur Goodhart, who gave a bad

report of the English courts. Dixon also found time to call at Worcester College to see Alan Brown who had been at Rich’s dinner for Enoch Powell

the previous August, and with whom, in September, Dixon had discussed Franklin’s prospects for admission at one of the Oxford colleges. Back in London on the 19th he took Franklin to Dallos, then lunched

at the House of Lords with a group including Lord Macmillan and Lord Chancellor Frederic Maugham (brother of Somerset Maugham), returning

to the Contact Lens Centre in the afternoon. Over previous visits Dallos had

found no shell suitable for Franklin’s left eye, and prior to the Oxford trip he had taken a cast in order to make one. At this visit, Franklin had just been trying out the shell by walking about the streets for a couple of hours. It had hurt for the final half hour and Dallos pronounced it not good enough. From here Dixon took the boys to the HMV television rooms in Oxford Street and watched a third-rate play being televised from the studio of the BBC.

He found it hard to get Franklin to distinguish between the wonders of tele-

vision as a mechanism and the base use to which it was applied. ‘It is evident’, Dixon observed with typical if justified scepticism, ‘that it is going to be another means of debasing public taste & destroying standards’. As an

antidote they spent the rest of the afternoon at the British Museum.

On 21 June Dallos pronounced the left shell ‘final’ and sent Franklin

into the streets, accompanied by his father and brother, to try out the shell

(now bearing the optics) for the right eye. It felt comfortable through a lunch

at the Trocadero and a visit to the National Gallery, and Dallos was satisfied.

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In the evening Dixon attended the dinner given by the London Australian Club to the Duke of Kent as Governor-General Designate, presided over by

the Duke of Gloucester as head of the Club. Dixon sat at the Kent and

Gloucester table between the Earl of Derby and Lord Chancellor Maugham, talking to Maugham about his books The Case of Jean Calas (1928) and The Tichborne Case (1936). Later he spoke to Sir Philip Game about the 1932 crisis in New South Wales and the dismissal of Jack Lang as Premier. Stanley Bruce was there, Sir Thomas Dunhill, and people Dixon knew from Australia. The following day he and the boys went to the HMV offices, where they had reserved seats, to watch on television the arrival of King George VI and Queen Elizabeth in London on their return from Canada and the United States, their progress to the Palace, and their appearance with the princesses, Elizabeth and Margaret, on the balcony.”* On the 22nd, both shells with their optics having been passed as final, Franklin was given lessons in removing and inserting them, as they were bigger and shaped differently from the Zeiss lenses with which he had been fitted in Melbourne the previous year. Dallos said that conical cornea was probably due to endocrine disturbance. The membrane split, fluid came through, and the cracks healed. He had this information from recent German

discussions on the course and origin of conical cornea, and passed on to Dr Hunter a list of references to the relevant journals. There was no hereditary

aspect, and no reason to believe that Franklin’s condition would worsen.

Dixon now had the two things for which he had come twelve thousand miles —contact lenses specifically engineered for Franklin’s condition, and the

latest explanation for it.° As the lenses were not supposed to be worn for the

whole day, at least at first, Franklin also had a pair of tinted spectacles, pre-

scribed by Ida Mann, to wear at other times. Later Dallos would supply a

second pair of contact lenses to be used in the event of Franklin’s misplacing the first pair, which in any case would need to be sent back to London for repolishing after a time. And just to be on the safe side, Dixon had Dr Hunter supervise tests for vitamin deficiency at the London Clinic where Franklin was hospitalised in July, tests that would show his vitamin balance to be normal.?” The IRA were on a bombing blitz and Dixon and the boys inspected the latest ruins. They saw little theatre on this trip, though on the 29th they attended a ‘splendid’ performance of Hamlet with John Gielgud in the title role at the Lyceum, the last play there before its demolition. During July, while Franklin’s tests continued, Dixon had a series of

engagements with prominent lawyers. On the 11th he lunched at the Privy

Council with Lords Atkin, Thankerton, Russell, Wright, and Romer. ‘1 am

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more impressed with Maugham than any of the judges I have met’, he had

written to Latham the previous month, adding that ‘Macmillan and Atkin I

was also much

impressed with: not by Wright or Thankerton.

Russell

seemed too old in manner and style if not in years. Scott L.J. has been most

kind but I cannot feel that he is very great’.’® Scott had lent Dixon his copy of the biography of Oliver Wendell Holmes by the United States Supreme

Court Justice Felix Frankfurter. On the 13th Dixon lunched at the Law

Courts with Sir Boyd Merriman, President of the Probate and Admiralty Divisions and formerly Attorney-General. ‘A formal and dull affair’ was how he described the dinner Lord Justice Scott gave on the 25th. Earlier that day, on Scott’s strong recommendation, Dixon had taken Franklin to

see Martin Sherwood who Scott said

had many cases of high myopia under treatment ... I hardly liked to refuse. His clinic was espoused by one Dr McGowan but as I suspected he turned out to be a quack & a fraud. However it was a very interesting experience. It seemed extraordinary that a Lord Justice of Appeal should place himself in such hands, but he had done so with the greatest confidence.”

‘Much more interesting than the lawyers’ was Lord Ashfield, a friend of Harold Clapp’s whom Dixon saw on the 13th. Chairman of the London Passenger Transport Board, it was Ashfield who had established a single

controlling transport authority for London and created the world’s most

efficient urban transit system, London Transport. Like Clapp he was con-

cerned to apply only the very latest technology, like Clapp he took a serious

interest in public affairs. Dixon’s notes on Ashfield’s conversation are more extensive than his notes on conversations with any judge he met:

He said that Germany’s technical skill was greater than England’s but nevertheless he thought it would be found that at points their skill had been exaggerated: that Germany would be unitedly behind Hitler in the event of war: that English policy had now frightened all the Germans, including those against Hitler, and they would regard war as a fight for Germany’s safety.

The money

being spent in Britain on preparations for war, Ashfield said,

was ‘stupendous’ but he was concerned that ‘his system of tubes could not be protected against high explosives’.° There

were

day trips with

the boys

to Winchester,

St Albans

and

Cambridge, and a repeat of the walk through the Epping forest he had made

with Russell Martin in the winter of 1924.3! He lunched on the 18th at the

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Caledonian Club, St James’s Square, with Alfred Stirling and a ‘very interesting’ Foreign Office counsellor named Hadow whom Stirling had brought along. Hadow thought Germany could yet be appeased: He condemned Baldwin as a humbug, Simon as a conceited doctrinaire & said that he respected Chamberlain but thought he had gone far enough in proclaiming Britain’s preparedness to resist. He considered that war was not inevitable while negotiations were still open & set out a general plan of compromise, which, however, I thought would never commend itself to the Germans. His work at present was to explain foreign affairs as they developed to the Dominions & settle the communications to those governments.*?

The very next day, at Sir John Simon’s invitation, Dixon lunched at his house, 11 Downing Street, finding the former Foreign Secretary, now

Chancellor of the Exchequer, utterly aloof from current events, though he was a member of Neville Chamberlain’s inner Cabinet and in the midst of the

gathering storm (perhaps his aloofness was an act). Apart from Dixon it was

a family affair. They reminisced about the 1924 case and Simon’s predictions regarding Dixon’s future, since fulfilled. Over lunch the conversation turned

on extraordinarily arcane subjects: on the circle and ellipse made by a driver

at golf, and the relation of this to a cone; on a theory Simon had evolved con-

cerning Portia’s speech in The Merchant of Venice; on Australia’s treatment of its Aboriginal people; and on the Privy Council’s failure properly to

understand federalism. The mention of Aboriginals drew Lady Simon into

the conversation. She had written a book on slavery which Dixon, she was gratified to learn, had read, and she inquired about the Aboriginals’ belief in the supernatural. This, Dixon noted sceptically, led to her speaking of what sounded like a telepathic delusion over her sons death at the war. To support, or rescue her from the quagmire, Simon cited a real or imaginary feeling of agitation felt by himself at a time when his mother was in danger, he being in Switzerland & she in England. I turned the conversation to totemism

(as more rational) &

Simon was interested.

After lunch Simon showed Dixon over the house, part of the same

building as No. 10 next door. Dixon commented on the large number of Latin books in Simon’s library—why did they predominate over the Greek? Simon said his Greek library was in a separate room, and yes, of course he

read more Greek than Latin. In fact he was in the process of reading the newly discovered fragments of Menander. Dixon felt he had taken up

enough valuable time but Simon demurred—he

had just come from the

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Cabinet, he said, a meeting devoted to the discussion of the consequences of

Britain’s guarantee (given in the spring) of support for Poland in the event

of war. Simon said that there were in effect three foreign secretaries, Chamberlain, Lord Halifax and himself, but the picture remained dark and there was no solution. Still, while diplomatic relations remained open there

was hope of averting war.’ Simon evidently had nothing to do for the afternoon. He picked up a studio photograph of his mother and discussed her, ‘rather I thought because his mother was much on his mind owing to the

turn the conversation took at lunch’. The conversation then turned to Australian politics, Simon asking about Menzies who he thought made excellent speeches.>4 Dixon wrote to Sir John Latham a few days later with his impressions.

Simon, he thought, ‘shows most intellectual capacity among the men I have

met, and in a glittering form’, yet

it is not hard to understand why he arouses hostility in many and why his foreign policy was misjudged. There is a suspicion of palaver coupled with an egotism and intellectual confidence which accounts for the one and a doctrinaire approach to questions which combines with the other qualities to account for the other.>*

Dixon and Simon, highly self-contained personalities, clearly had much in common, but Dixon was less aloof, not particularly egotistical, and cer-

tainly not doctrinaire. As one who observed him closely during his time as Chief Justice points out, ‘The awe in which he was held was born of respect;

he had no need of arrogance, and his dignity bore no resemblance to pom-

posity’.** His high standard of honesty went with strength of character and Victorian principles of conduct, learned as a child. As he aged he was dis-

mayed to see many around him defying those principles or simply forgetting them. Something analogous was happening in regard to the law. He had

always admired the great jurists of the classic period of English law, the

second half (and particularly the third quarter) of the nineteenth century, as reflected in the judgments of the Courts of Common Pleas and King’s Bench. Among the English judges he most admired were Sir James Parke (Baron Wensleydale) and Sir James Shaw Willes. As a legalist Dixon conceived of the law as a systematic body of knowledge, and one from which he thought many modern English judges had departed. These months in London mark the acceleration of a process of disillusionment with modern English judges, and he would find this disillusionment hard to deal with in the years ahead. At King’s Cross Station on the afternoon of 20 July, with Franklin now

released from the London Clinic, they caught the LNER’s Coronation train

for Edinburgh, dining en route and covering the 392 miles in six hours. Not

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everything at Edinburgh elicited Dixon’s admiration. ‘The Castle’, he thought,

‘lives as a memorial of the savagery of the Scots, not a single thing represents art or literature, all bloodshed, even the war memorial of which they

are so proud, without much justification’. At the Old University he attended a conference of the Society of Public Teachers of Law, the purpose of this trip. On his previous visits to Britain Dixon had met relatively few academic lawyers. This conference set things right, for it was attended by outstanding teachers of law. Robert W. Lee, Professor of Roman-Dutch Law at Oxford, with whom he had lunched the previous month, read a paper on Roman law in South Africa and Ceylon which Dixon found particularly interesting. Later, over tea, he talked to Sir Maurice Amos, Quain Professor of Comparative Law in London, to Sir William Holdsworth, and to Sir Charles Finlay, lecturer in English law at Edinburgh. Professor Candlish Henderson, who gave a paper on ‘Points of Difference between English and Scots Law’, invited Dixon to dine at his house the following night. At the society’s dinner, where

he sat with Henry Arthur Hollond, Reader in English Law at Cambridge,

there were other invitations, from Amos and from J. G. McIntyre, Dean of the Faculty and (as such) head of the Edinburgh bar. He also met Wilfrid Normand, Lord President of the Court of Session, ‘who made a dull

speech’.>” As a Law Lord he would later become a regular correspondent of Dixon’s and, like Lord Simonds (later Lord Chancellor), a recipient of Food

for Britain parcels sent by Dixon during the war. The following day, Saturday, 22 July, after returning to the conference and responding to a paper on legal education by Professor G. R. Y. Radcliffe (the society’s President), Dixon and the boys took a bus to Queensferry by the Forth Bridge, then over the next two days saw Sir Walter Scott’s mansion at Abbotsford and walked in the Pentland Hills. Afterwards they returned to London.** On the 27th he went up to Oxford, lunching with Alan Brown in his rooms. Also there was (Theodore) Henry Tylor, Balliol’s blind tutor in jurisprudence, ‘extraordinarily learned & most interesting’. Later they all went for a walk, joining up with the Australian Kenneth Wheare (born in Warragul, Rhodes Scholar 1929). Wheare was Beit Lecturer in Colonial

History at Oxford, and author of books on the Statute of Westminster. It

appears he had read Dixon’s theoretical paper on the subject, as well as ‘The

Law and the Constitution’.*? Back in London, writing to Sir John Latham, Dixon summed up a few of the lawyers he had come to know better at first hand. Holdsworth he rated as ‘the wisest and best common lawyer that I have met’, Lord Maugham as ‘a little narrow or perhaps I should say that he has a rather strange order of

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values in his interests and shows a particularity rather than a generality in

his ideas. He makes a poor speech. But I should say that he has a better understanding than most of the judges of how a case should be decided according to law’. Lord Justice Scott he rated low on both judgment and legal capacity. ‘Morton J. seems a good man of Scotch extraction. He is reasonably young. Finlay L.J. is a stout person and has a John Bull style, though

on the printed page he reads as if he were far otherwise. All agree that Wilfred or give than he At

Greene [Master any satisfactory had in his letter the end of the

of the Rolls] is not a success but none can say why, criticism of him.’ Macmillan he now rated lower of 25 June.*° month, just before leaving Britain, he called on

Alfred Stirling in Richmond Terrace, Whitehall, to say farewell. Stirling ‘discussed international relations & referred to the representation of Australia

in Japan and at Washington’.*! At the time Australia had no diplomatic posts of its own in either of those cities but the Menzies Government was planning to establish them. In 1940 Richard Casey would be appointed to Washington, Sir John Latham to Tokyo (on leave from the High Court while retaining the Chief Justiceship). As Minister for External Affairs Latham had led a goodwill mission to Japan in 1934 and considered himself a connoisseur of Japanese culture. As Australian Political Liaison Officer in

London Stirling would have been involved in the preliminary groundwork

for these appointments.

Dixon also had a final meeting with Ida Mann who, after examining

Franklin’s eyes with the lenses in, pronounced herself fully satisfied. She said she would be in Australia in four years’ time—in fact she would be appointed Reader

and

then

Professor

of Ophthalmology

at Oxford

in the

1940s,

holding the chair until 1947. Only then would she move to Western Aus-

tralia, where Dixon would see her socially in the 1950s, having grown to like her. She would be created DBE in 1980.

At Southampton on the evening of 1 August he and the boys boarded

a tender that took them on a long, cold voyage down the Solent to the French

Line’s [le-de-France, lying at anchor after her arrival from Le Havre. ‘We

reached her about 7.30’, he recorded, ‘and dined in great magnificence of the French sort’. This was a grand ship, 44.000 tons, built in 1926, ‘with appointments & decorations representing French notions of luxury’.*? The voyage, however, was unpleasant for Franklin, who suffered a bad attack of asthma on the first night though he avoided waking his father or Ted. The ship’s doctor treated him for the rest of the trip, Dixon giving him the ephedrine Alice had packed for such an eventuality, but he took the entire passage to recover. The cinema was showing the spectacular Entente

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Cordiale (1939), which Ted watched with his father, and Dixon read to Franklin the lives of Lyndhurst and Brougham from Atlay’s The Victorian Chancellors (1906).

When they docked in New York on the afternoon of 7 August a customs officer who boarded with the pilot sent for Dixon to say that he had instructions from Washington to let his baggage through free, probably thanks to Keith Officer, Australian Counsellor at the British Embassy in Washington. They were booked at the St Regis, corner of 55th Street and Fifth Avenue, a quiet, luxurious hotel of twenty storeys, and in the evening began to explore the city around them, starting with Fifth Avenue and Broadway. The next morning Dixon telephoned Dr Applebaum, author of a 1936 article on conical cornea he had read, and saw him at noon. He ‘proved a

vulgar but knowledgeable tradesman’, examining Franklin quite thoroughly, but he could tell them nothing they had not heard in London. He claimed

that no new knowledge or methods had been developed in the United States since he had written his piece, and appeared to have known nothing about the latest German articles. ‘In effect he gave no further help.’ The same day Dixon called on Keith Officer, who was staying at the Gotham Hotel on

West 55th, and visited the offices of the Australian Trade Commissioner to

North America, Lewis R. Macgregor, at 630 Fifth Avenue. Macgregor would soon be directing the Australian War Supplies Mission in Washington where

Dixon, as Australian Minister, would be working closely with him. On the

9th, Officer came to lunch at the St Regis and Macgregor called too. Alfred

Stirling, Keith Officer, Lewis Macgregor—each was at this time involved

in the genesis of an independent Australian diplomacy, and with hindsight Dixon’s contacts with this circle look like destiny. At Grand Central Station that afternoon, 4.20 p.m. New York summer time, they boarded the de luxe Twentieth Century Limited, their section hauled, as Dixon noted, by the locomotive ‘Commodore Vanderbilt’, capable of a hundred miles an hour on the straight stretches. It covered the 961

miles to Chicago in just 16 hours and 10 minutes by his precise reckoning,

though apart from its speed he thought it ‘not very wonderful’. He had become increasingly interested in modern technology, and New York Central invited passengers to time this route, offering a dollar for each hour or part-hour the Century was late on arrival. In Chicago they took a taxi to the Chicago & North-Western Station, then walked the length of Michigan Avenue and back before boarding the Treasure Island train for points west

at 9.30 a.m. Traversing an America in which he knew almost nobody, he

made notes of their daily routines. Across the plains that first day they explored the length of the train, lunched in the dining car, bought soft drinks in the club car. Dinner was taken as they rolled towards Omaha, where they

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had a fifteen-minute walk. Flying was the only form of travel that ever came between Dixon and his exercise. On rising the next day he took a bath at the end of the train as it passed through southern Wyoming, bought the Denver Post at Rawlins and read it across the Continental Divide, taking additional walks at Carter and Ogden. After crossing the Great Salt Lake (‘34 miles by embankments & a bridge of 12 m.’) they slept through Nevada. ‘I woke early’, Dixon wrote, ‘8& found ourselves passing through the mountains with firs and gulches’—the Californian Sierra Nevada. They were on the plains before the boys woke, arriving in Oakland breakfasted and refreshed

at 9.30 a.m.‘ Three days were spent in San Francisco, staying at the Francis Drake

Hotel, touring the city and sampling its restaurants. Out of curiosity Dixon

took the boys by ferry across to Treasure Island and the much-touted

Golden Gate International Exposition, competing with the 1939 New York

World’s Fair, but it ‘proved a fraud’—nothing but ‘rubbish’.6 This would

have been Franklin’s view too, for he tudes. On the 16th they boarded the proceeded to Los Angeles, and while the boys hired a car to see the city,

already Matson it took twenty

shared most of his father’s attiLine ship, the Mariposa, which on more passengers Dixon and dollars for the entire day. The

driver called himself Sandy, and his familiar, comically ‘aggressive manners’, Dixon noticed,

amused the boys very much. He drove us through Wilmington to Los Angeles & around its streets. We went then to Hollywood & saw the Bowl|[,] the Chinese Picture Palace with the hand & foot prints of Stars in the cement & drove round the Beverly Hills. After lunching at the Brown Derby Hat & buying Anne a toy we drove through Pasadena to the Huntington Gallery & Library where we saw Reynolds Blue Boy and pictures of Romney &c. The ship sailed about midnight amidst a scene of intoxication.*”

Dixon settled down to reading his way across the Pacific, ‘particularly Aeschylus’ and ‘the U.S. Chief Justices’. On the 20th ‘there was a “Captain’s

Dinner” to celebrate the departure of those disembarking at Honolulu tomorrow. Bursting balloons & childish hilarity pleased the Americans’.**

At night one could listen to the ship’s wireless, tuned to the shortwave

stations. On the 22nd he listened to the reports of Ribbentrop’s flight to Moscow to sign the non-aggression pact, British families leaving Berlin, and

German reservists back to the class of 1899 being called up. Passengers

started listening to the news more frequently, and Dixon’s diary records little else. On the 29th he spent the evening reading the newspapers at Fiji.

As they sailed out of Auckland on 1 September a fellow passenger, Angus

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McLachlan, News Editor of the Sydney Morning Herald and later Director

of John Fairfax Ltd., told Dixon ‘the Auckland Herald had news that Hitler

had bombed Warsaw’. The Mariposa was a day from Sydney when ‘we

heard Chamberlains declaration, Menzies statement’.*? Three years later, in New York, Dixon would recall how, at the conclusion of Chamberlain’s

speech,

an Australian whose view of life, although a robust one, was coloured

by his pursuit of the turf, rose from his seat and addressing the assembly said quite simply “Ladies and gentlemen, we’re off!” His metaphor was not drawn from the noblest transactions of Australian life but it appeared to me to express exactly what the members of the British Commonwealth felt. We knew that we were entering on a fight involving perhaps our national life but this Australian expressed himself as one whose fears and anxieties were resolved by Mr. Chamberlain’s announcement that war had been declared.

7

DIXON’S

WARTIME WORK AUSTRALIA 1939-1942 MIND

NOW

IN

focused primarily on the war effort and what he

could do to assist it. On his first day home, 5 September, the Government

announced the establishment of a Central Wool Committee (CWC) to dispose of that part of Australia’s wartime woolclip not required by local manufacturers, at a fixed price per pound under a contract to be negotiated with

Britain. The total amount for the war would run to around £600 million

and represent the highest single source of Australia’s national income at that time. Every aspect had to be overseen, including appraisement of the various types of wool, handling, scouring, carbonising, storage, shipment, and the distribution of British funds to growers.' As this was a similar scheme to that with which Dixon was familiar from the previous war and its aftermath, he wired Canberra the next morning to offer his services. In the afternoon he had tea with Clapp at the Australian Club where a message from Canberra already awaited him, asking him to come up at once to help with the new scheme. Clapp drove him home, he packed, farewelled the family and

caught the train that evening, discussing the scheme en route with two of the new CWC’s provisional members, Norman W. Yeo, formerly Chief Accountant to the old CWC and to the British Australian Wool Realisation Association (BAWRA), and Frederick C. Laycock, representing the industry’s

manufacturers. On

their arrival there was a meeting of the provisional committee:

Alexander F. Bell, businessman and Director of the Commonwealth Bank of

Australia, selected by the Government as Chairman; Yeo, Executive Officer; Laycock, representing the manufacturers; Frank N. Young, Norman

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J. Carson and Thomas S. Cheadle for the wool-selling brokers; Joseph P. Abbott, Douglas T. Boyd and Bertie A. N. Cole for the woolgrowers; and James R. McGregor, an experienced wool-buyer.? Dixon’s role was to give legal advice and draft regulations, but he was not content simply to play that part. In the afternoon he saw Menzies: ‘said I was anxious to do anything I

cd for the war & suggested he shd get the British Govt to sell out of China

to Japan & use wool’. That is, he was urging Menzies to use the influence

wool gave him to suggest to Britain that it sell some of the clip (surplus to

its requirements) out of China to the Japanese and share the profits with Australia, which was consistent with Australia’s trade policies at the time.? The rest of the day was spent working out the necessary regulations. Also, at Dixon’s urging, a cable was sent to Stanley Bruce for him to pass on to the British Government ‘insisting on urgency’.*

Back in Melbourne over the following days Dixon drafted the National

Security (Wool) Regulations and explained them to the CWC at its second meeting on 11 September, in Melbourne. Bell, as Chairman, pointed out that Dixon had ‘placed his services unreservedly at the disposal of the Prime Minister, and when you consider the Regulations before you this afternoon you will realise how very fortunate we are in having the finest legal opinion on them’.’ Dixon dictated a judgment to Rich on the 12th, then spent the

rest of the day with the CWC explaining the Wool Contract Avoidance

Regulations. He spent the 13th there too, when the CWC considered the British Government's offer, cabled by Bruce, to purchase the Australian clip for the period of the war and the season following it at the proposed price of 10.39 pence (Australian) per pound, the average realised price for the year ending June 1939. But that season had been the worst in years for quality and price. The Australians were ‘thunderstruck’ (Dixon’s word)—people in the industry were expecting up to 15 pence, as the new season’s clip promised to be of excellent quality. The question now was, what price should Australia ask? It was arranged ‘on my suggestion’, Dixon noted, that Yeo, Bell, McGregor and he should fly up to Canberra the next morning, 14 September, to settle the matter.® With Professor Leslie G. Melville, Economic Adviser to the Common-

wealth Bank of Australia and Adviser to Treasury on Financial and Economic Policy, they went to Parliament House to discuss the British offer with Senator Philip McBride, Assistant Minister for Commerce, and his departmental head, (James) Frank Murphy. Melville, McGregor, Yeo and Dixon then settled the wording of a cable to Bruce for forwarding to the British and at 3.30 p.m. took it in to Menzies. On Dixon’s recommendation they

had fixed on 14 pence (Australian) per pound, against the advice of Yeo but

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with Bell’s strong support. McGregor preferred 13} pence, Yeo’s preference is unclear. Many millions of pounds hung on such ‘fine’ differences. Menzies

agreed to 14 pence and to the strongly worded cable they had drafted.

Afterwards Dixon had fifteen minutes alone with him:

I pressed him with the situation in Melb owing to press criticism of inaction. He sd he wd broadcast on Friday announcing a force for use here or elsewhere & I suggested confidence wd be best established by emphasizing collaboration with GB. Govt. Spoke of Japan & need for British coming to terms & ‘selling out’ of China. He agreed war would open in earnest in a week. Offered my services in any capacity. He asked if any objection to going abroad. I sd no. Certainly not.”

It is clear, then, that from the outset Dixon was taking a leading role within

the CWC beyond the provision of legal services, proffering advice of a political and even military kind to Menzies, and making it clear that he was prepared to work for the Government abroad. The reservoir of appropriately educated talent in Australia at the time was limited, and conventions about the permissible bounds of judges’ activities gave way to necessity in his case. Overnight he travelled back to Melbourne on the train with Clapp

‘who discussed his air troubles’-—he was now managing the Aircraft Construction Branch of the Commonwealth Department of Supply and Development, with a brief to assemble Bristol Beaufort bombers in Australia. The following day, Friday, 15 September, Dixon had tea with Edmund Herring,

a Melbourne KC who combined the law with an already distinguished military career and who would soon bea lieutenant-general (and from 1944

Chief Justice of Victoria). Herring ‘narrated all the difficulties of getting anything done from a military point of view’, but that very day Menzies, in

the speech he had mentioned to Dixon, announced the call-up of the militia in two drafts, each of 40000 men, for a month’s training, and the enlistment

of an infantry division of 20000 men for possible service abroad—the

initiation of the Second AIF (Australian Imperial Forces). To Dixon’s mind,

however, this seemed half-hearted—‘disappointing’.® On Saturday he, Bell and McGregor met Menzies in Melbourne to review the negotiations with Britain but the conversation between Menzies and Dixon ranged more widely: We discussed general situation Menzies observing that Japan invade us & risk Americans attack: our soldiers cost 4 times an army if raised might not strike a blow & he wd be faced deficit for nothing. I urged a board of 5 between service & overcome service blockage.?

would not British & with great cabinet to

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DIXON

Although there was a state of war there was still no fighting between

Britain and Germany. Some thought that once Poland had been defeated ‘peace might be patched up’.'® On the evening of the 19th Clapp drove Dixon to visit a ‘tired & dispirited’ Essington Lewis, Chief General Manager

of BHP, appointed that month as Business Consultant to the Defence Depart-

ment." Lewis was not alone in his gloom. Everywhere there was a sense of drift. When Neville Chamberlain had replied to Menzies’ cable on the wool

price, he had offered 13.13 pence a pound. On 23 September Dixon advised

Menzies ‘that the price of 14d might be brought to 13 but not lower’, and made an appointment to see him the following day (Sunday) at ‘Yallambee’. Clapp came in the morning ‘to discuss what I was to say to Menzies’, who arrived just after 5 p.m. and spent an hour. ‘I urged him to delegate to a board of 5 & get rid of his cabinet & keep in touch with them[;] urged a trial medium mobilization & discussed whole war situation.’! It is hard to overstate the radical nature of the first of these suggestions. Dixon’s ‘board of five’ appears to have been conceived as a council of state, to be justified in terms of wartime exigence. The High Court sat in Adelaide from the 26th to the 29th, but on the 27th Menzies wired Latham asking for Dixon’s presence in Melbourne the

following day. On Bell’s advice Menzies had accepted, for the current year

only, the ‘final’ British offer of 104 pence sterling or 13.4375 pence Australian, but the British wanted the agreement to cover the war. Dixon and Yeo drafted a reply accepting this, with provisos about possible renegotiation of the price further down the track, and Dixon and Bell took it in to Menzies for final approval at the War Cabinet, meeting at Victoria Barracks in St Kilda Road. Afterwards, Dixon had just enough time to go home and take a bath before catching the train back to Adelaide for the final day’s sitting there." While he continued to be closely involved in the work of the CWC over the following months he was being consulted on a range of other problems including those arising in regard to the wheat pool (6 October) and, later, coal. Clapp wanted his advice on his proposal to incorporate his air-

craft operations to avoid the Public Service Arbitrator and other ‘incidents’

of the Public Service (15 and 17 October—they saw Menzies about this on the 21st), and over the following months Dixon drafted, or assisted the Secretary to the Attorney-General’s Department, Sir George Knowles, in drafting, an ever-growing number of regulations concerning wheat, transport, aircraft production and other aspects of the war economy.

Meanwhile he had fixed on Keith Aickin for his associate to replace

Alan Brooksbank, but Aickin’s employer, the solicitor Sir Arthur Robinson

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of Arthur Robinson & Co., opposed the idea. Refusing ‘No’ for an answer, ‘I told him to consult him again’ (17 October). Robinson gave in. There were few cases of constitutional interest in which Dixon delivered a judgment in the latter part of 1939. In R v Martin; ex parte Wawn he supported the majority view that New South Wales, which had its own lottery, could prohibit the sale in New South Wales of ‘foreign’ lottery

tickets from other States without infringing section 92 of the Constitution. Because the law in question was directed against any lottery (apart from the

New South Wales State lottery) whether within or outside the State, its application did not ‘depend upon any characteristic of lotteries or lottery transactions in virtue of which they are trade or commerce or intercourse nor upon any inter-State element in their nature’.'* His judgment in this case seems longer than necessary and somewhat repetitive, perhaps because he had to rely on just one line of argument rather than the two he had been able to use for a judgment in a similar lottery case earlier in the year.'5 At

the end of November there was an application for special leave to appeal in

a custody case in which ‘Evatt & I dissented from the refusal wh. I felt was

very bad. Starke & McT. religion. L. politics R fear operated to inflict great harm on two children’.'* Meanwhile Rich was still imposing on him and it speaks for Dixon’s charity that he allowed it. On 28 October, for instance,

he wrote a paper for Rich to deliver in Sydney. ‘He said that it was very good, too good for him.””” On 23 October Yeo, Bell and Dixon—the CWC’s ‘inner cabinet’!*— were discussing with Menzies problems to do with woolcombers and sheepskins. At one point Menzies told Dixon, aside, ‘that he wished me to superintend all the Bds [Boards] erected for commodities. Sd he wd speak to

Murphy’.!? But Frank Murphy, Secretary of the Department of Commerce,

wanted to do the superintending himself, for he saw Dixon a few days later, ‘Evidently anxious to use me but not in relation to his control of Boards[.]

I sd in the end that he shd. consult me as occasion arose’.”° Either there was

a limit to Menzies’ control of his senior public servants, or he had had second thoughts about an idea taken by Murphy as a slight. In any case Dixon would soon be chairing a range of boards, though none apart from the CWC directly concerned with commodities.

Some of the matters on which he was now being consulted seem surprising, but he could assimilate new concepts rapidly and needed to do so if the drafting of regulations was in prospect. He had no technological expe-

rience, of course, though he had a keen interest and Harold Clapp was there for advice: ‘Evg Clapp came over to discuss a request by cable to enter upon

the mfr of twin-row Wasp engines work requiring the importation of new

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plant machine tools &c besides being an experiment Also a proposal by Wackett to build a new design of plane and engines which he thought

foolish’. The following week Clapp ‘showed me cables about the twin row

Wasp engines & the Pegasus’ and a few days later about the Taurus engine.”! Australia would adopt the American Pratt and Whitney twin-row Wasp engine for its Beauforts, making them faster than their Taurus-powered British counterparts. It would not be long before Dixon, as Minister to

Washington, would be inspecting aircraft production lines in California,

and overseeing the ordering and shipment of military aircraft for Australia. After a break in the mountains at Khancoban fly-fishing with Latham and others,” in mid-January Dixon was approached by Edmund Herring to help General Sir Thomas Blamey in obtaining authority to command the 2d in cl [council] as opposed to St [Statutory] togr [together] under the G.O.C.’s control to the Govt without interference from the of the department here.”

AIF abroad Regs. 2) so (3) & he wd Military Bd

1) under an order that it wd be kept have direct access & the ‘dead hand’

Dixon worked on the problem the following day (Sunday), and on Monday morning, 15 January, told Blamey there were no legal difficulties. He would

help him again on other matters.”* That afternoon Menzies, Blamey, Herring

and Dixon met, and afterwards, as often happened, Dixon was left alone with the Prime Minister: ‘I urged him to go to England now([.] Then spoke of

Blamey to whom he sd he wd give full power. M. told me he had prevented a decision of the British Cabinet to intervene in Swedish waters to intercept

access of Germany to Swedish iron ore by a cable’.?s The Prime Minister would not go to England until a year later, but Dixon’s advice reflects his view that Australia needed to consult directly, at the top level, with the British War Cabinet. Like many others he thought Menzies insufficiently forceful. At a dinner on 9 March for Ian CluniesRoss, Australian Member of the International Wool Secretariat in London, Dixon found Menzies ‘flippant & alcoholic’.* With the German invasion of Denmark and Norway in early April, and the Low Countries and France in

early May, the ‘Phoney War’ was over. Chamberlain resigned on 10 May

and there was a new sense of urgency. Menzies considered sending Philip McBride, Assistant Minister for Commerce, to London with Dixon, asking

the latter ‘if I wd go to England to act in connexion with the Ministry of

contraband control & for Bruce generally . . . I sd I would do anything’.”” But Bell, the CWC’s Chairman, was opposed, and on Sunday,

and Dixon saw Menzies at home:

12 May, he

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Mrs M remarked that the change of Ministry in England was a success of the German war of nerves. Bell told M. of the Jap difficulty yesterday & then spoke of the proposal to send McBryde to Eng. & said it was inopportune. M. sd there were other commodities & a change of ministry made it possible to get the ear of the new minister. I suggested that a cable be sent asking a continuance of all arrangements for a month & a postponement of all discussions. M. agreed to this. We then discussed what he shd do here over the invasion. I urged him to speak on Mon. & to take extreme steps. He sd no more munitions cd be produced!!?*

The hasty proposal to send McBride and Dixon to London evaporated. Frank Murphy no doubt spoke for many public servants when he complained to Dixon the following day of Menzies’ ‘want of fire & initiative & drive & the means of meeting the present desperate necessities’.”* But the

worst complacency was in Parkville, not Canberra. ‘A commentary on the University as a source of wisdom’, Dixon noted on the 14th, ‘was provided

by a radio announcement that 31 members of the staff (inclg. Woodruffe &

Crawford) had protested against the censorship of communist & trade union journals by the Govt’.2° The Communist Party of Australia was proMoscow, and so (at this time) not anti-German—it opposed Australian par-

ticipation in the ‘imperialist’ war. Dixon, at the wholesale conscription—he never spells this out when Evatt volunteered the thought that total accepted.}! The intellectuals, Dixon thought, were

other extreme, was for but was clearly pleased conscription would be typified by Macfarlane

Burnet, Assistant Director of Melbourne’s Walter and Eliza Hall Institute

and fellow member of the Wallaby Club. During a walk along the coastal

sands from Mornington to Frankston Dixon found him ‘most unsatisfactory about the war displaying, like most of the intelligenzia [Dixon uses the German form], an indifference to our victory or defeat & a readiness to receive German rule or hegemony’.>2 Around this time Dixon was working on a constitutionally significant judgment in Farley’s Case,>? completed in the alcove of the library of ‘Yallambee’ at 1.15 a.m. on 2 June, winter’s chill held at bay by a single-bar radiator propped on the uncovered floorboards. (He would later observe of

the successful barrister, ‘the harder he works the less notice he takes of his

surroundings’.**) This case involved the winding up of an insolvent company in New South Wales, with debts due to the Crown in right of the Common-

wealth and to the Crown in right of the State of New South Wales. The Court

held that as between the State and the Commonwealth there were coexisting

rights which, in the absence of valid legislation disturbing the position, stood

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on an equality. Dixon’s judgment went further, arguing that even if the legislation in question were construed to give the Commonwealth priority over the State this would in any case be invalid because the State’s claim to stand on an equality with the Commonwealth in respect of demands upon the same fund is the consequence of the Federal system by which two governments of the Crown are established within the same territory, neither superior to the other . .. The Federal Consti-

tution does not imply as a matter of meaning or intention that debts due to the Crown in right of the State shall, in a distribution of assets, stand on an equality with debts due to the Commonwealth. If it did so, there would, of course, be an end of the matter. But it does mean to establish two governments, State and Federal, side by side, neither subordinate to

the other, and it is this that gives rise to their equality in a competition of claims to be satisfied out of assets in a course of administration.

He added that ‘to destroy the equality does spell an interference with an existing governmental right of the State flowing from the constitutional

relations of the two polities’.’ This was another Dixonian attack on the

notion that the Court’s judgment in the Engineers’ Case, destroying the doctrine of the implied immunity of State and Commonwealth government agents and instrumentalities from each other’s taxation, had somehow proscribed the very notion of ‘implication’ in the Court’s interpretation of the Constitution. Any federal constitution ipso facto had federalist implications. By contrast Evatt’s judgment, also hypothesising beyond the legislation in question, was completely unbothered by any federalist implications in the Constitution. He merely cited his own 1924 doctoral dissertation to support his claim that the equality of footing as between the Commonwealth and the State in such a situation might validly be destroyed by the Commonwealth, though in the present case the relevant legislation did not so destroy it.°¢ On 27 June Latham told Dixon that Menzies had come to see him,

asking him to go to Tokyo and to relinquish the Chief Justiceship. The term

would be five years, though events ‘made time uncertain’. Cabinet had been against his going temporarily on leave. Latham had refused because it was ‘too late’ and because he could ‘not afford to resign with no recourse’. The very right-wing Treasurer, Percy Spender, was ‘anxious to go’.°” But within a few days Cabinet withdrew their objection to Latham’s holding two offices and wanted him to go to Tokyo on leave for twelve months. Asked his advice, Dixon told him

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to seek infmn. thro’ Bruce or Stirling about Brit. Govt views & wishes[,] to communicate with Casey [Minister to the United States] similarly &

then on the facts so ascertained to make up his own mind whether he could really effect something & if so to go not for a term but ad hoc & without his family.°*

The following day, with Latham’s opportunity at the back of his mind,

Dixon found himself lunching with General Sir Brudenell White, Chief of

the General Staff, who ‘spoke about the proceedings of the War Cabinet’. On the spur of the moment ‘I asked him to find me some war service’. By 5 July Latham had Casey’s encouragement and that of the Leader of the Opposition, John Curtin. Nevertheless Dixon told him ‘that I doubted

whether anyone should be sent: we might be better with no one representing us there’. Yeo, on the other hand, ‘considered Japan friendly’.*? Trading relations were good and there was still no pact between Japan and the Axis.

Life in Australia continued relatively unchanged. On the evening of 11 July

Dixon presided at the Melbourne Philharmonic concert where Sir Thomas Beecham conducted Brahms’s Requiem. Beecham, off-stage, revealed him-

self to be ‘a palpitating mass of conceit’.*°

In August Evatt informed Dixon of his impending resignation—he was standing for the Australian Labor Party at the forthcoming elections. He asked that Dixon, for propriety’s sake, prepare judgments for him in cases

in which he was currently concerned. ‘At Ct he told me in effect that he wd

resign though he still had room to turn . . . Saw Starke & besought him to

give E an opportunity of going w/out imposing on parties a reargument’.*! Evatt’s place would be filled by Dudley Williams, only recently appointed

to the Supreme Court of New South Wales. Menzies, discussing possible appointments with Dixon, ranked Williams as his most preferred, then William Owen (also on the Supreme Court of New South Wales), then John

Mellis Napier of the South Australian Supreme Court.” Williams was an

unenthusiastic appointee, sitting on few cases, and his associate told Dixon that ‘He gets very nervy’.*? His career on the High Court would confirm the

perceptiveness of the comment. He was a hypochondriac who did not exert himself though not lacking ability as a company lawyer. Dixon was inclined

to accept him because he had a good record as a soldier in World War I. That

was typical of Dixon. He respected Owen for much the same reason. In the

period leading up to Williams’s appointment Latham permitted Evatt to ‘continue the use of his room, as a convenient political HQ!" With Evatt gone, Latham about to go, and Dixon spending much of his time on CWC matters, the Court was stretched to the limit. Then the CWC’s Chairman,

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Alexander Bell, died of a heart attack on 14 August, largely the result of the strain of work to which he was not equal and the associated faction fighting he could not control. Menzies wanted to replace him with Dixon, who was so worried about possible political criticisms that the Prime Minister agreed to seek Curtin’s approval, delaying the appointment until the second

half of October following the Government’s narrow return to office in the

wake of the September elections.‘* Those elections produced a hung Parliament, the Government finally scraping in with the support of two independents. Its morale was low, and it had lost three of its most able ministers in an aircraft accident at Canberra in August that left the nation appalled. Among the dead were Sir Brudenell White, Chief of the General Staff, and the ministers J. V. Fairbairn, Sir Henry Gullett and G. A. Street. Latham gave Dixon a striking insight into the Government’s mood at the beginning of October when the result of the elections was still unclear: ‘Tea with Latham who came from the Cabinet: sd (1) Menzies thought he was beaten. (2) All in fear of Japan. . . The Jap. treaty with Germany meant that she believed that we were beaten’.*¢ With hindsight it may seem odd, given Dixon’s strong feelings about Australia’s war effort being inadequate, that at that time he and Yeo should

be trying to persuade Menzies to take a strong line over British objections

to further sales of wool (surplus to requirements in Britain and Australia) to Japan. The Japanese wanted a seventh shipment of 25000 bales and Yeo had stated that they could have it at the old price, but Lord Essendon, Chairman of Britain’s Committee for the Sale of Empire Wool Abroad, dis-

approved, wanting a 4 per cent increase in price while expressing ‘doubt about [the] allotment at all’.*” Menzies simply delegated the matter to Bruce

in London. As usual he and Dixon had a

private chat. Evatt, Menzies said,

had three times telephoned the Governor-General, Lord Gowrie, requesting

an interview, though Dixon does not report what it was to be about—

presumably the tendering of unsolicited advice. Menzies speculated that the

Government ‘wd be defeated by Sir Earle Page’, Menzies would then ask for a dissolution of Parliament and ‘Gowrie wd refuse’. None of this came to pass but it reveals the possibilities of the hour.** These were dark days, with Dixon now talking about ‘the undoing’ of England,‘ and Australia increasingly anxious about Japan, with whom trading and diplomatic relations

continued. As late as the second half of 1941 Dixon as Chairman of the

CWC was attending, as a matter of course, dinners and cocktail parties given or attended by Tatsuo Kawai, Japanese Minister to Australia, Tsuneo Hattori, Kawai’s Secretary at the Legation and Consul in Sydney, and Minoru Amemiya and Shird Kikuchi, who headed the Australian branch of

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Mitsubishi Shoji, a large firm with which the CWC was necessarily in frequent contact.*° Dixon conducted his first meeting as the CWC’s Chairman on 23 Oct-

ober 1940, the day he learned the position was his. Announcing his own

appointment, he at once asserted his authority in a way the Committee appreciated. They had a cable from the Australian Trade Commissioner in New York, Lewis Macgregor, recommending that the Australian Minister to the United States, Richard Casey, be authorised to request the American

authorities to alter the American Defence Contract to eliminate the require-

ment that only domestic wools be used in American service uniforms. The Department of Commerce in Canberra had replied, rejecting Macgregor’s recommendation without consulting the CWC. Dixon stated his view that the Department, before sending such cables, should consult the CWC, which was in a position to express an authoritative opinion: I should like to know that I have the support of the Committee in any remonstrances which I might think fit to address to the Secretary of that department about doing such things . . . It is unfortunate that they have fallen into the habit of doing things without consulting the expert Committee which has been set up to handle the Wool Purchase Arrangement. Ishould think that the Committee knows more about those matters than the department.

Everyone approved of his desire ‘to secure the maximum degree of immunity from interference’, as one member put it. Dixon then proposed they solicit information directly from Macgregor in New York.*! The Department of Commerce had been trying to ‘capture’ the CWC (despite Menzies’ preference for Dixon as its new Chairman) ever since Bell had become too ill to chair it. On 11 July, when Yeo had told Dixon of Bell’s latest heart attack,

he had also warned that Senator Philip McBride, Assistant Minister for

Commerce, ‘wished to be chairman’.*? Indeed McBride had chaired the meeting of 11 September and declared ‘that a replacement chairman would soon be announced’. Two days later Dixon had been informed by Yeo of McBride’s imminent appointment as Acting Chairman of the CWC. ‘I referred to sec. 44 (iv) of the Constitution and Yeo said he would stop gazettal.’* Thus Dixon’s first chairing of the CWC was not only a victory in itself but sent a clear message to the Department of Commerce—stop interfering. On most days he spent several hours at the CWC offices, often the entire day, dealing with a stream of problems thrown up by various sections of the industry with their often conflicting interests. One example was the

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continual pressure to increase the number of centres for appraisal Despite the CWC’s policy that only cities where auctions had would become centres, other cities such as Townsville and Albany the Government to make them centres too. Dixon fought this

of wool. occurred pressured tendency

because it would result in small quantities of wool being appraised there

and an overly slow accumulation of wool types in groups large enough for

economical shipping.** In early November he drafted a set of reasons against additional appraisement centres but the Department of Commerce seemed not to listen. A month later he saw Sir Earle Page whom Menzies had been compelled to reinstate as Minister for Commerce following the elections.

Wool Control in Bradford, the British body overseeing its side of the scheme, had cabled Page expressing their strong opposition to new centres and saying they would not stand any extra costs. Page was now complaining that someone in the CWC was leaking information (it had been Dixon who had solicited the cable from Bradford).** In Dixon’s words, Isd that possibly so but I did not know & that he shd not be concerned [because] the British Govt. knew the fixing of new centres was wrong every body knew of it & regarded it as unwise & unsound & that the wool men communicated freely in the interest of the war & the scheme. I encouraged them to do so. I sympathized with him & wished to do anything but increase his difficulties but the CWC thought it wrong & wd not retreat from that position.

Page complained that he had to meet the Albany people and that the Government had already ‘given away the question’. Dixon told him that ‘(1) we had no money for it & (2) he cd tell them we were opposed to it &

the Government had to act at its cost’.*” His stand delayed matters but Page

continued to be pressured by Albany and in 1941 the CWC had to accept what its members ‘unanimously opposed & thought quite wrong’.** Formal meetings were normally held twice a month, each lasting a day and a half, but Dixon visited the offices almost daily. His command of

detail and ability to go to the heart of a problem were admired by other

members, even Frank Young who was perpetually critical of Dixon’s firstrate Executive Officer Norman Yeo, of James R. McGregor (an outstanding member), and sometimes of Dixon himself. Young seemed to go out of his

way to be difficult and had few friends on the Committee (he was eventually persuaded to resign). At the meeting of 30 January 1941 he implied, without evidence, that South Australia’s controlling appraiser, H. W. McGregor, brother of James, was guilty of malpractice and conflict of interests. James McGregor defended his brother by verbally attacking Young. As Dixon summarised it that evening, ‘Young asked for my protection whereupon I

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told him that I wd protect others against him’.*? On one occasion Dixon put out a statement with which all agreed except Young who, according to the verbatim notes, complained that Dixon had always been particularly adroit in avoiding voting on the Committee . . . That might be a most excellent course to adopt, and I congratulate you on your ability to do it. But it does remove the possibility of our being able to say at any time that there were two, three, or four members against a particular motion.

Dixon answered: Personally I have noted with very little pleasure the tendency of members to differ in their opinions rather on personal lines than on lines devoted to the subject matter, and I have thought it was my business to try to avoid accentuating those differences, and to keep members’ minds as far as possible on the subject matter of what has to be done. I therefore make no apology for avoiding the process of dividing and going into different lobbies and so forth . . . On general principles I do not propose to take any votes.

Dixon managed to overcome the problems arising from the differences between interest groups that had beset the CWC’s operations under Bell. The differences seemed irreconcilable. Broadly speaking there were three interests: the buyers (represented by James McGregor), the brokers (Frank Young), and the growers. Dixon respected McGregor’s ability but had no time at all for Young. His great skill was in acting with scrupulous impartiality in reconciling the differences between the warring parties, a skill he later brought to bear upon Kashmir. He was aided at CWC by Frank Murphy who was an able civil servant but whose temper had a low flashpoint, which made him an unsuitable conciliator. He acted as Dixon’s intelligencer on the ebb and flow of political currents. Dixon’s personal qualities aside, he and Norman Yeo brought to the CWC a memory of BAWRA’s operations (most useful because many of the records of BAWRA had been destroyed).

The agendas were long and problem-filled, requiring much advice and deliberation in advance of the meetings, which were managed extremely well by Dixon. A recurring issue of justice he failed to solve involved French

appraisers who had been assured, on going to fight in Indo-China for France

against Japan, that they would

be reappointed on return. Feeling among

some CWC members was that they must first declare themselves Free French

(as the Returned Servicemen’s League also argued). Dixon believed it unjust

to coerce them into making political declarations: some ‘did not like the

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[Australian Free French] leader, M. Brenac. Others did not join for various

other reasons which were entirely creditable’.*! He tried unsuccessfully over many months to have them reappointed, even talking to Curtin about their plight, but was opposed by the League and an indifferent Government, the

matter remaining unresolved when he left for Washington in May 1942. A highly significant event during Dixon’s chairmanship, one which relieved Australia of the need to store vast quantities of wool awaiting export, was the securing of Britain’s agreement in December 1940 to make

available 250 million pounds of wool to the United States as a strategic

reserve. Shipped to America and stored there at American expense, this wool remained British property but the United States could and did pur-

chase it as circumstances demanded.

Dixon had become increasingly involved with problems arising over

the inefficient use of coastal shipping for movements of coal and other

resources as efforts were made to build up emergency stocks of the neces-

sities of life. The Department of Commerce had looked into the whole ques-

tion of control and requisitioning of Australian merchant shipping on the basis of hire agreements, the idea being that shipowners would continue to run their ships as managers. Frank Murphy, Secretary of the Department, saw Dixon on 2 December 1940 about the proposed position of Director of Shipping. Dixon suggested a small board of two or three—‘myself{,] naval man{,] shipowner’, stressing ‘no political control’. Thus he volunteered for what became the Australian Coastal Shipping Control Board (SCB), announcing his appointment as Chairman to a conference of shipping interests over which he presided in Melbourne on 17 January 1941.% As the

official war history summarises it:

The board was empowered to exercise control over ships on the Australian register wherever they might be, ships under charter to any comPany or person resident or operating in Australia if the ship was in Australian territorial waters, and British ships engaged in regular trade between Australian ports and ports outside the United Kingdom, once again while such ships were in territorial waters. The board might give directions as to the trades in which a ship should engage and the voyages it should make, its cargo or passengers, the terms of hire for the ship itself, and rates for cargo and passengers, priorities for cargoes, ports of loading and discharge and similar matters. Ships or space in ships might be requisitioned for either cargo or passengers and the owners in such case might be required to act as agents for the Commonwealth.**

Dixon and Aickin drafted the necessary regulations, along with proposals for controlling the supply of coal, which Menzies approved when they

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discussed them on 22 January. From now on the SCB demanded nearly as much of his time as the CWC, further reducing the hours he could devote to the High Court. One of his first jobs with the SCB was to oversee the preparation of comprehensive lists of charter rates and rates of hire, which he had ready by 26 February 1941, as he told a meeting at the Navy Office in Melbourne that day.*” As Chairman he had automatically become Chairman of the Marine War Risks Insurance Board when it was created towards the end of February 1941.5* The Government Insurance Office of New South Wales was used to administer this scheme, the initial purpose of which was to ascertain whether current rates of insurance were justifiable and, if not,

to reduce them. It covered all ships on the Australian register trading solely

between Australian ports, and later all ships on the register trading anywhere. From mid-1942 cargoes could also be covered. Vessels were to be insured only through the Board, but insurance was not compulsory.” In the meantime Dixon, by virtue of his office as a High Court Justice, had been awarded a knighthood, a KCMG, announced in the King’s New Year’s Honours list. Being an order with a fixed number of knights, it often took some years for an award to be made (in the 1950s KBEs were sub-

stituted and knighthoods conferred without waiting).

Industrial disputes relating to coal and the waterfront directly involved the SCB and could require the Prime Minister’s intervention, but he was not always easy to reach: ‘Pressed him about his secretariat & gave his inaccessibility during last few days as illustrn’—thus wrote Dixon on 13 June

1941 (following Menzies’ return from England), regarding their discussion

on shipping requisitions, watersiders and the Stevedoring Commission.” He prepared memorandums on such matters and discussed with Menzies

the question of preferential employment for members of the Waterside

Workers’ Federation as well as the feasibility of a weekly wage in place of their irregular patterns of employment and pay.”! In July the SCB set up the Shipping Management Committee on which Dixon sat with representatives

of the companies whose ships had been requisitioned, and a Central Traffic Committee with separate Traffic Committees for the port of each of the State capitals. By late July the Government was under continuing threat of defeat on the floor of Parliament, and Arthur Fadden was poised to replace Menzies. On 6 August the Prime Minister told Dixon ‘he wd support Labour if defeated but would first go through with it[.] I suggested that he should see

Curtin if defeated before he saw the G-G & tell him he wd support him’.’? That month Menzies offered Labor a National Government with a ministry

composed equally of the two sides of the House, but the offer was rejected

on 26 August. With the United Australia Party divided over his leadership

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he resigned in the party room on 28 August and was replaced by Arthur

Fadden, Leader of the Country Party. Two days later Dixon ‘Walked down to see the Menzies. She was at home & told us of the conspiracy. Sd it was arranged while he was away.—Fadden deeply in it. She looked haggard & strained. Much against his going to England’.”? Over lunch on 1 September Menzies ‘Described the treachery. Hughes Page & Country Party very bad’. On 3 September: Frank Murphy put to Dixon a radical proposal by

Earle Page, Minister for Commerce, ‘that I shd take charge of the acquisition

by Commonwealth of all State Rys [Railways]. I sent word that (1) if done by consent of States I wd help (2) if by exercise of power in invitos I must reserve myself for the Court’;’5 the States would certainly take the matter

there. Nothing more was heard of it. On 3 October the two independents

holding the balance of power in the House of Representatives voted for a censure motion on the budget, defeating the Government, which resigned. John Curtin proceeded to form a Labor Government. On the Sth, Dixon recorded, ‘Lady Latham came to express alarm at the prospect (forecast by the press) of Evatt being Minister for External Affairs [because] of his antipathy for her husband & of his unreliability of utterance & action[.] I agreed to try to see RG.M.’® When he walked over to the Menzies house, however, he found it locked up. Lady Latham was right about Evatt’s ‘unreliability of utterance and action’—it would make him notorious in London

and Washington alike. Her husband was vulnerable at the time. Having

travelled from Tokyo to Singapore for consultations, he had there devel-

oped calculus and enlarged prostate with uremia. It would have been easy

for Evatt to recall and dismiss him but in fact Evatt had no desire to do so, and it was only the outbreak of the Pacific war that would prevent Latham’s

return to Tokyo. In late October Lady Latham travelled to Singapore by

flying boat to be with her husband, Dixon farewelling her at Rose Bay in Sydney on the 27th before chairing a meeting of the Commonwealth Transport Advisory Board on which the SCB had a seat.”” This body, set up to determine and control priorities for rail and road transport in an emergency, included representatives of the State railways, roads boards and the Defence Department. Dixon’s first meeting with Curtin was thoughtfully organised. He flew to Canberra on Friday, 7 November, for an overnight stay as guest of Lord and Lady Gowrie at ‘Yarralumla’ (Government House), on the outskirts of

the diminutive national capital. The Prime Minister and his wife were at

the dinner given that night for the guests of honour, Duff Cooper, British Prime Minister Winston Churchill’s emissary sent to explore possible consultative arrangements in the Far East, and the beautiful Lady Diana Cooper.

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Ministers present had portfolios directly relevant to Dixon’s work: John Dedman (War Organisation of Industry), Senator James Fraser (Assisting Commerce),

Senator

Richard

Keane

(Trade

and

Customs),

and

George

Lawson (Transport). He was able to talk to Duff Cooper about the wool contract and the argument for an increase in price. In the morning Murphy took him to see Curtin and they discussed the wool scheme and the question of price.”® ‘He discussed Latham & Menzies & their respective developments’, Dixon noted afterwards, ‘suggesting that Menzies never handled his men. We touched on coal and he saw the plan of use of ships Also on French appraisers’.”? From Canberra Dixon flew to Sydney for the sittings there and on 15 November, along with Rich, the Japanese Consul-General Masatoshi Akiyama and others, greeted Latham on his arrival at Rose Bay. Dixon then flew to Melbourne with him late that night to be met at Essendon

Airport by Kawai and Hattori, who were still observing the niceties, though

by now Australia had followed Britain and the United States in imposing economic sanctions against Japan.®° The attack on Pearl Harbor was just three weeks away. Kawai, a most pleasant man who kept a trained sparrow, lived near Dixon (they met while out walking at least once) and would soon

be interned close by in Auburn until repatriated to Japan the next year.*!

Concerned to increase the wartime efficiency of Australian shipping,

Dixon had been contemplating a scheme for ‘Marine Service’-—enlistment

and efficient control of seamen. The spur to do something about it came on 8 December. Dixon was at ‘Yallambee’, at breakfast: ‘Early this morng Jap attacked Pearl Harbor Singapore & Thailand Phillipines Guam &c Heard it over 6.45 AM BBC’.* He attended fraught meetings the next day at Commerce and Victoria Barracks on the vulnerability of Darwin, and on the 10th discussed his marine service scheme with Murphy and Michael Bourke, Assistant Secretary (Marine) in the Department of Supply and Shipping. Murphy rang the Prime Minister’s secretary for an appointment but Curtin was out with his wife, and later in the day was ‘reported to be in a “difficult” humor & thought Minister for Commerce shd handle it He “couldn’t attend to everything” ’. The radio announced the sinking of the Prince of Wales and the Repulse. On the 11th Dixon ‘discussed whole qn [question] of seamen with all Maritime Cl [Council] reps’-—the relevant union. On the 21st he drafted the necessary regulations and the next day drove to Canberra with

Scully (the Minister for Commerce), Murphy and Aickin, explaining the

scheme to the Prime Minister alone and then, later, to him and a group of ministers: Evatt, John Beasley the Minister for Supply and Shipping, and Scully. All appeared to accept it.

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He was soon to be disappointed. On Christmas Eve Murphy rang ‘Yallambee’ about that day’s conferences in Canberra. The Maritime Transport Council ‘had gone back to their idea of getting some immediate advantages’ from the scheme, while ‘Evatt & perhaps other ministers were intent on using parts of scheme to the advantage of Govt with Unions & disregarding running of shipp—each was out to advantage himself, wrecking

Dixon’s finely honed plans. Moreover Evatt ‘misrepresented my scheme’ to

the shipowners.* The scene was set for a miserable Christmas the following day: Exchanged presents & Alice was not content with the clock or my manner of giving it or some thing. She spoke of my attitude & her feeling it when she was ill. I did not understand it but evidently she thought that there was want of consideration & respect and in some way I had managed to revive the antagonism. I went a walk alone and then with Ted .. . She repeated the same thing in the evg. It had been a trying day & I broke down. She tried to help me but I spent a bad night.**

Dixon went next day ‘early to town & remained in Chambers all day. Felt in danger of a complete breakdown Worse in evg’. The 27th was spent in town too, working on shipping, wool, and court matters, then in the evening he

took a walk with his barrister friend and fellow classicist Severin Woinarski. ‘Managed during day to reestablish control.’ But on the night of the 31st the

subject of Christmas was ‘reviewed’ and on 1 January he ‘felt very depressed all day & distrait. Spent it in walking &c.’ In Sydney on the 8th he returned to his room at 52 Macleay Street to find an anniversary telegram from Alice—he had forgotten to send one.°® With the war now on Australia’s doorstep, shipping, particularly around the north, was under direct threat.” Dixon’s work with the SCB took on added strategic significance and he was involved almost daily in consultations with senior officers in the Navy Office in Melbourne,

men

like Admiral Sir Guy Royle and Commodore John Durnford, and particularly Commander Rupert Long, Director of Naval Intelligence. Because the

overall war situation directly impinged on the work of the SCB he was also

in regular contact with the Chief of the General Staff, Lieutenant-General Vernon Sturdee (who had replaced Sir Brudenell White), and his deputy, Major-General Sydney Rowell. Apart from the military threat, Australian shipping was beset by industrial disputes and a Maritime Industry Commission was set up during

January 1942 designed to overcome ‘the sticking up of ships’, in Dixon’s

well-chosen words.** It was composed of employers and union represen-

tatives in equal numbers and aimed at efficient manning of vessels, control

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of working conditions, imposition of a 44-hour week as demanded by the unions, and machinery for settling disputes. The Commission effectively did what Dixon had aimed to do through his scheme for ‘Marine Service’. It should be said that in his shipping role Dixon developed a contempt for some of the activities of unionists, which he regarded as bordering on treachery. When Darwin was bombed on 19 February the reaction was terror. Some of the troops there ran south, and according to Frederick Shedden,

Secretary of the War Cabinet, agitated ministers ran about ‘like a lot of startled chooks’.®? By March a Salvage Board had been formed, with Dixon as Chairman, to oversee the recovery (where possible) of sunken and damaged ships around Australia, with branches in each State except Tasmania. Meanwhile demands imposed on the SCB by the influx of refugee ships—many from the Dutch East Indies, others flying British and American flags—and

the

movement

of United

States

forces

into

Australia

(some

35000 American troops had arrived by 1 April, Blamey told Dixon that day), led to the creation of the Allied Consultative Shipping Council (ACSC). It was established by decision of the War Cabinet on 9 March

1942, and

Dixon was appointed as chairman with the directive to promote the coordination of shipping, regardless of origin, in the Australian region.” Meetings were held every three weeks. The first issue to be addressed was the inefficiency on the wharves. When work was plentiful, as it was now, the waterside workers, all casual

labourers, chose which cargoes they worked and when they worked them. On 4 March Dixon had attended a meeting in Canberra with Prime Minister Curtin on this very problem. Others present included Sir Thomas Gordon of the British Ministry of War Transport (he sat with Dixon on the ACSC),

Charles Elwood Brown, Regional Director for the United States War Shipping Administration, South-West Pacific Area, Ronald Bienvenu, General Secretary of the Australian

Steamship

Owners’

Association, Eddie Ward,

Minister for Labour and National Service, John Dedman, Minister for War

Organisation of Industry, and the Communist ‘Big Jim’ Healy, General Secretary of the Waterside Workers’ Federation. The United States Army

was by now the principal user of the wharves. Brown read out to Curtin a

protest from the United States authorities regarding the waterside workers.

Dixon was commissioned with Gordon and Healy to report to Cabinet on

how to meet the ‘difficulty’.2' They had their first meeting in Melbourne the next day, 5 March. Dixon composed a draft report and on the 6th showed it to Gordon and Healy who agreed to it, but by the time of the ACSC’s meeting on 13 April it had still not been acted upon, though Dixon had by

then revised the necessary regulations. Colonel D. C. Cordiner, one of the

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Americans on the ACSC, told the meeting that the United States Army would

order stevedoring battalions from the United States to solve the problem. Dixon liked the idea but suggested that the necessary men could be collected more quickly in Australia.”? He too felt frustrated. Later that month the Stevedoring Industry Commission would be formed on the basis of Dixon’s report, its brief to make the waterfront more efficient. Dixon had also seen Curtin on 19 March at the latter’s request on an

entirely different matter. Before the meeting he had seen the British High Commissioner, Sir Ronald

Cross. Evatt, as Minister for External Affairs,

had just left for the United States and Britain to secure guarantees of war

materials and support for an Australia now under direct threat of Japanese invasion. Cross complained of Evatt’s ‘anti-British propaganda’ and the new American influence on Australia. Dixon replied that in his view it was

only temporary—British victories wd restore influence’. Cross reported Major-General Victor Odlum, Canadian High Commissioner to Australia,

saying that the military situation was ‘dreadful’—Australia could defend

only a small area north and south of Sydney. He agreed with Dixon that a ‘non political’ government was ‘essential’. When Dixon saw Curtin a little later he actually pressed this idea on him—‘I mentioned the necessity of a Council of State’, the same radical idea he had urged on Menzies, but the Prime Minister wished to talk about Casey’s resignation as Minister to the United States. Casey, feeling bypassed by Evatt, who communicated directly with the American authorities, had earlier that month accepted an invitation

from Churchill to be British Minister of State in the Middle East with a seat

in the War Cabinet.”? As Casey’s Washington replacement, Curtin said his Cabinet was considering Dixon, or if he refused, then Brigadier Eugene Gorman, currently Chief Inspector of Army Administration, whom Dixon

knew from his days at the Melbourne bar. Dixon responded by recom-

mending Bruce and suggesting Menzies take Bruce’s place in London. As for himself, he did not wish to be the last rat to leave the sinking ship: ‘Sd I cd not go [because] the country is in danger & I did not wish to leave: sd E [Evatt] was thought an evacuee. C. [Curtin] sd I had put a new idea into his head. C. spoke of E’s character & so did I. I suggested that C [Casey] had resigned [because of] Evatt’. The next day, back in Melbourne, Dixon received a telephone call from Curtin—‘rang to revive proposal I shd go US’. It says much for Starke’s ignorance of such matters that at Court the following day he was reported

to have said that Dixon ‘did nothing & just went to lunches & dinners’.™ It is true, though, that Dixon was now spending less time on the bench than

the other judges. Over the following two years he would be far away on

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leave of absence from the Court when the important constitutional cases

involving the Government’s wartime powers would be fought out. Dixon spoke to Murphy and Menzies on 22 March about Curtin’s proposal, and both of them urged him to go. Then on the 23rd he flew to Canberra to see Curtin: ‘Told him the difficulties & my objections to going but sd that I wd if he thought I cd be of more service It appeared that he had not sent word to E [Evatt] 8& I asked that he shd cable him & let me know

the decision’. On the 25th in Melbourne Clapp introduced him to William S. Wasserman, attached to the American Legation in Canberra as Chief of the Lend-Lease Mission in Australia, Dixon discussing with him the Australian political situation and ‘giving him an account of Evatt’. They lunched with Lieutenant-General George H. Brett of the United States Army Air

Corps (USAAC), Essington Lewis and others, Brett urging Lewis, who was Director-General of Aircraft Production, ‘to turn his aircraft wks [works]

over from production of planes to spares & repairs of US planes’. On the

27th Dixon again flew to Canberra at the Prime Minister’s request, seeing him at 2.30 p.m. Curtin said ‘that Evatt did not want anybody appointed at present & an appointment wd not be made. I sd E. wd not want me. He sd, nothing of that sort. No decision. I sd I did not mind delay’. In fact Menzies had told Dixon over lunch that this was coming—‘wind had changed & it

was thought that wool & shipping opened too many difficulties’.

It is hard to overstate the degree to which Dixon was now being kept

informed about the most secret aspects of the war effort. To give one day as an example, on 28 March he took Commander Long of Naval Intelligence (forerunner of the Australian Security Service) for lunch at the Melbourne

Club where Long discussed the ‘special operations’ being undertaken (pre-

sumably in the islands to the north), ‘enemy influence here’, ‘Spender’ (sus-

pected by some of being pro-Fascist), and a proposal to place police under the Commonwealth Attorney-General.” Finally on 15 April he received a letter from Curtin offering the

Washington job. Melbourne’s Herald ran the news of his appointment that afternoon. The Prime Minister made it clear in his official announcement

that he had prevailed upon Dixon to go—this alleviated Dixon’s concern not to be seen as a deserter. The tenure of the post was indefinite, and he

would remain a Justice of the High Court by virtue of the Commonwealth Judiciary (Diplomatic Representation) Act 1942.7” He saw the Prime Minis-

ter in Canberra the next day and suggested who should succeed him on the CWC, the SCB, the ACSC

and the other boards. He asked Curtin about the

salary and pointed out that it was taxable, surprising the Prime Minister who replied that a statute must be passed to deal with that. Personally Dixon had

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little interest in money and no taste for luxury, but he was becoming concerned lest his death leave his family with inadequate resources, a worry that would increase in the years ahead. Curtin agreed with Dixon’s demand that his family go, and Aickin too, as Third Secretary. Later LieutenantColonel W. R. Hodgson, Secretary of the Department of External Affairs, told Dixon he thought the emoluments ‘sufficient’, Dixon replying that he doubted it.** It was an important feature of his appointment that he should be directly responsible to Curtin and not to Evatt, an arrangement which would cause many problems with Evatt.” At the Australian Legation in Washington an official telegram arrived from Canberra. In the words of Alan Watt, the First Secretary, ‘I took the telegram to Evatt, who read it without comment but with every physical sign of surprise. The clear inference to me was that Prime Minister Curtin had taken the decision without reference to Evatt’.! At 10 a.m. on 20 April Dixon saw General Douglas MacArthur, Commander-in-Chief of all allied naval, land and air forces, South-West Pacific Area, who briefed him on the strategy against Japan, the ‘pull’ in Washington towards the European war, the key people there, and his own disappointment at their ‘tendency’ (meaning their tendency to favour Europe

and ‘beat Hitler first’, as the policy, part of the Arcadia Accords,” soon came to be termed), despite assurances they had given him prior to his leaving the Philippines the previous month.’ In fact the perfectly sensible policy of ‘beat Hitler first’ never meant abandoning Australia but was a matter of priorities and relativities. MacArthur was understandably impatient to reverse his own recent retreat, but the fact was that thousands of conscripted American Gls were already pouring into Australia—a country not allowing its own conscripted militia (the AMF, or Australian Military Forces, for those unwilling

to volunteer for overseas service in the AIF) to fight outside Australian ter-

ritorial waters, whether in defence or attack. To those in the United States who knew about it this was scandalous and sat most strangely alongside Australia’s complaints about its imminent peril. Dixon would soon be ‘explaining’ it in America to Sumner Welles at the State Department, a hopeless task. Also, the United States Pacific Fleet was quickly being brought back to strength and would turn the sea war against Japan by early June. On 4 May Dixon dined in Canberra with Curtin and the United States Minister to Australia, Nelson T. Johnson, his wife Jane, and Treasurer Ben Chifley, the discussion focusing on ‘reverse Lend-Lease’ or reciprocal aid (provision by Australia of food, accommodation and other essential services

for the American forces in the south-west Pacific in return for American

supplies and equipment) and its impact on the already dwindling Australian reserves in London. The Lend-Lease chief, Wasserman, was taking a hard

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line on what Australia should fund—everything, he argued, but pay and

allowances—and Dixon needed to know the arguments on both sides if he were to fight this battle for Australia in Washington. The following day he and Curtin discussed wool and shipping, and Dixon’s successors— Mr Justice Owen of the Supreme Court of New South Wales (CWC) and Dixon’s friend T. S. Clyne, Judge of the County Court of Victoria (SCB and associated boards).* At this time the Japanese air force was targeting Broome, Wyndham

and Darwin ona regular basis. While the Battle of the Coral Sea was being fought off Australia’s north-east coast, Dixon travelled to Darwin to see the

conditions and examine the wharves, flying up with senior military officers and Wasserman. On 8 May at Bachelor, a town in the scrub 55 miles south of Darwin, they were met by General Herring, now General Officer Commanding Northern Territory Force, and driven to his advanced headquarters camp further north. The conditions were makeshift and primitive. On 9 May Dixon was shown around troop dispositions, the Australian Air Force headquarters under Air Commodore Francis M. Bladin, and the USAAC’s control room run by the hero of the hour, Lieutenant-Colonel Paul B. Wurtsmith, commander of the recently arrived 49th American Fighter Group whose three squadrons of Kittyhawks had restored the poor morale of the Australians in the area, downing thirty-eight Japanese aircraft to the end of April for the loss of only eight of their own.5 Dixon then proceeded to Darwin to survey the cratered aerodrome with its wrecked hangars and inspect damaged wharves (‘got everybody ... togr [together] & dictated memorandum of what ought to be done’*) before flying home the next day.

There were a host of engagements prior to his departure for the United

States, starting with a Lend-Lease dinner in Melbourne on 11 May where he made a farewell speech before Curtin, Nelson Johnson, Menzies, Fadden and others against a backdrop of allied flags. An Argus photographer caught

Menzies apparently dozing off during the speech. On the 12th, Dixon dined

with American

manding

United

officers including Vice-Admiral

States

Naval

Forces,

Herbert F. Leary, Com-

South-West

Pacific

Area,

and

Lieutenant-General Brett, both of whom stressed ‘the necessity of further airplanes submarines & forces generally & the need for my going’. MacArthur saw him again from 4 to 5.15 p.m. on the 14th, enlarging ‘on how

he had been let down & his inability to understand why more forces not

sent’, Dixon noted. On the 15th, Admiral Sir Guy Royle, Chief of the Australian Naval Staff, and Air Marshal Richard Williams, soon to be RAAF representative in Washington, briefed him on the local war strategy and his mission generally. He was invited into the War Advisory Council’s meeting in Canberra on the 19th

(11 a.m. to 2 p.m.). Curtin pointed out

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that Dixon was now being supplied with full information about the Australian war effort and strategical policy in the south-west Pacific. Dixon referred to his discussions with United States service officers and sought

guidance as to whether he should travel to the United States by air, the

Council agreeing to this so that he might have discussions with Evatt before the latter returned to Australia.? Afterwards he lunched with Admiral Royle and Lieutenant-General Vernon Sturdee, Chief of the Australian General Staff (and from December that year Head of the Australian Military Mission in the United States), then had additional briefings by Hodgson and Frederick Shedden, Secretary of the Department of Defence, before dining at Government House with Lord Gowrie, Sir Ronald Cross and Menzies.®

Shedden had written to the Secretary of the Department of Aircraft Production in Melbourne on 1 May requesting up-to-date information for Dixon

and the result was a 33-page report. Revised statements on local aircraft production, still well below requirements, were subsequently sent to him at half-yearly intervals to enable him to discuss purchases of American aircraft

in an informed manner.”

On the 20th he asked Brett to arrange military air transport across the

Pacific for himself and Aickin (now the Third Secretary), and on the 24th

they and the Dixon family caught the night express for Sydney. Alice and

the children were seen safely aboard the American military ship Ancon the following evening—the start for them of an uncomfortable month-long trip (all of it in radio silence) across waters where, for all they knew, enemy sub-

marines may have been lurking. After minimal sleep Dixon and Aickin were woken at 4.30 a.m. on the 26th. When they arrived at the Rose Bay flyingboat base an hour and a quarter later it was still dark, the streets unlit as a precaution against air raids. Hodgson, Owen and the American ConsulGeneral in Sydney, Ely Palmer, had braved the cold to see them off. The only lights were inside the misted cockpit windows of the American Naval seaplane moored just offshore, a PB2Y6 Coronado (as Dixon precisely recorded), commanded by Captain Bill Nation, formerly one of Governor Huey Long’s bodyguards in Louisiana. While the plane was being made ready Dixon and Aickin accommodated themselves to its spartan interior. By the time they rose above the water just before 7 a.m. there was a warm, pink glow in the sky to the east.'? Dixon’s thoughts were glum. Hodgson sent a cyphered telegram to Evatt (then in London): ‘I saw Dixon off by naval clipper ... He was fully documented prior to leaving and Prime Minister met all his wishes. He was still most unhappy however about his Mission feeling strongly he had made big mistake in accepting and that he could do better job in Australia’."!

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After nine hours they reached Free-French Noumea, the Coronado docking beside the Tangier, a mother ship there to refuel and service seaplanes. The second day’s hop was to Suva where Dixon slept at Government House; the third day they made Canton Island in the Phoenix group; the fourth, Palmyra in the Christmas Islands where Captain Gordon Rowe ‘drove me round the island showing his protection. Had been shelled with submarine. Only Brewster Buffalo planes. Then had a swim & shower’. On

the afternoon of the fifth day they reached Honolulu where they were met

by Admiral Chester W. Nimitz, Commander-in-Chief of the Pacific Fleet. Dixon and Aickin dined under the eyes of Japanese waiters at the Halekulaui Hotel—proportionately there were too many Japanese in Hawaii doing too many useful jobs to lock them all up, as was done in California—then took an evening stroll along the road skirting Waikiki Beach, barricaded with wire against invasion. The next day, the sixth since leaving Sydney, they

were issued with visas and seen off in the late afternoon on a Pan American flight for the all-night run to San Francisco.'2

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AMONG THOSE AT San Francisco airport to greet Dixon was Alan Watt, Head of Chancery and First Secretary at the Australian Legation in Washing-

ton. Following Richard Casey’s departure at the end of March, Evatt had

assumed control of the Legation until leaving for London in May, when he had nominated Watt as Chargé d’Affaires pending Dixon’s arrival. Watt had been among the first small intake of trainee diplomats to the Department of External Affairs in 1937 after the Lyons Government decided to establish Australian posts abroad, a decision the Menzies Government put into effect in 1940. Previously Australia had relied on the good offices of British embassies. Prior to the establishment of an independent Australian Legation in Washington a Counsellor had been appointed by Australia to the British Embassy there, most recently Casey before his appointment in 1940 as Australian Minister to the United States. Watt as First Secretary had worked closely with Casey in the new job, his advice regularly sought and appreciated. To his chagrin, he would find Dixon a less consultative minister. Watt later recalled Dixon spending that first evening, at the Fairmont Hotel, cross-examining him on the Legation’s functions and problems, and began to get to know him during the long, sleepless flight to Washington through Los Angeles, Tucson, Dallas and Nashville. He later recalled: It was obvious that he was a person of outstanding intelligence, whose interests ranged from the Classics and Archeology through History and Law to current affairs. He combined in one and the same person acute analytical capacity, clear apprehension of general principles, thorough attention to detail and ability to express himself in clear, logical terms.'

140

Alice and the children, Betty, Ted, Franklin and Anne, in the grounds of their new

home, on their first day in Washington, 23 June 1942

In the drawing room of the

Legation, with

Anne

and Betty, ¢. 1942

At the White House, 25 June

1942, for lunch and a meeting of the Pacific War

Council. Standing behind Churchill and Roosevelt are (left to right): Dr Eelco van Kleefens (Foreign Minister, Netherlands Government-in-Exile), Dixon, Leighton McCarthy (Canadian Minister to the United States), W. L. Mackenzie King (Prime

Minister of Canada), Lord Halifax (British Ambassador to the United States, looking away), Dr T. V. Soong (Chinese Minister of Foreign Affairs), Manuel Quezon

(President of the Philippines), and Walter Nash

(New Zealand Minister to the United States).

Dixon visits the Douglas plant at Long Beach, California, 10 July 1942.

Dixon with John D. Hickerson, Australian Desk Stare Department, ¢. 1942

New York, 26 January 1943, Australia Day. With his wife beside him, Dixon broadcasts over WNYC on the ‘Anzac Hour’. They are surrounded by RAAF and RNZAF trainees.

Dixon confers with Churchill at the White House, 4 September

1943.

Dean Acheson presides over the first plenary session of UNRRA, in Atlantic City, 10 November

1943. Dixon, representing Australia, is seated second from

Acheson’s right.

Dixon with John Beasley, Australian

House after visiting Roosevelt,

1 June

Minister

1944.

of Supply,

Beasley

problems created by Evatt’s undermining

Was «

10 July 1944: Dixon presents US Secretary of the Navy, James Forrestal, with a document accompanying a plaque made of Australian wood to be installed aboard the cruiser USS Canberra, named

in honour of HMAS

sunk off Savo Island with three American cruisers.

Canberra,

City Hall, New York, 14 August 1944: Dixon (on balcony to right of lectern) reviews a parade of 200 men of the 2nd AIF who marched up Broadway.

Evatt greets Dixon and his family at the dock in Sydney on their return from the United States, 27 October 1944. Franklin is not in the picture.

Dixon with Alice and Anne, on their return from the United States, 27 October 1944.

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It was a mixed blessing for Dixon that on the very day he reached Washington, 2 June, Evatt returned there from London. Evatt proceeded to introduce him to all the important people, having spent much of April and May pressing them with Australia’s war needs—and antagonising them with his abrasive, bad-mannered ways.” In fact the key people in Washington had become fed up with Australia’s incessant demands, and with what they saw as its extraordinary myopia—as if other countries were not equally imperilled by the Axis. However, Evatt had managed to secure President Roosevelt’s agreement to set up and chair the Pacific War Council on which Australia (represented by Evatt at the first meeting) sat with the United States, Britain, Canada, the Netherlands, New Zealand, China and the Philippines. The Council was less a forum than a briefing by the President on the week’s developments in the war, followed by unstructured discussion. The main value was that Roosevelt was kept aware of the concerns of the

Pacific allies.>

On Dixon’s first full day in Washington, 3 June, Evatt introduced him to Secretary of State Cordell Hull (a former attorney from Tennessee) and

his Under-Secretary Sumner Welles, and took him to lunch at the Supreme

Court with Mr Justice Frankfurter, a close friend of Roosevelt’s and soon to

be a close friend of Dixon’s.*

Felix Frankfurter was Jewish. He had been born in Vienna, and was four years older than Dixon. A compact storehouse of energies, he had an impressive list of books to his credit and was at this time perhaps the most outstanding member of the Court. He kept abreast of important cases throughout the common-law world including Australia, and like Dixon he was interested in federal law relating to interstate commerce. Dixon and he were both quick to see the funny side of things and burst into laughter, and they discovered an instant rapport. Dean Acheson, then Assistant Secretary of State, later wrote of Felix Frankfurter, ‘One needs to see, to

hear—particularly to hear his laugh, his general noisiness—to realise what an obstreperous person this man is, to have one’s arm numbed by his vicelike grip just above one’s elbow, to feel the intensity of his nervous energy’.* Another friend of Frankfurter’s, Wilmarth S. (‘Lefty’) Lewis, later reminded Dixon of the atmosphere they had both experienced on numerous occasions

in Frankfurter’s chambers:

‘We go down to Washington next week for a few days, and you can think of ‘The Little Justice’ and me lunching in his chambers on the 14th. The faithful Tom will appear discreetly from time to time with the simple Supreme Court fare, one vast substantial smile, and there will be peals of laughter and frequent side trips to the shelves to prove or illustrate. These excursions, have you noticed?, usually occur in the midst of an

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inner parenthesis. Which reminds me that once Dean Acheson called out, ‘Hurry, Marion, and help us get Felix out of his fifth parenthesis!’

Dixon’s friendship with Frankfurter, and soon with Acheson, would give him an enviable entry into the centre of American power, something that Watt, with all his diplomatic correctness and cultivated networks at lower levels, could never have provided. Almost from the beginning Dixon

was able to conduct diplomacy in the personal style he preferred, confidently independent of his First Secretary, to whose advice, however, he occasion-

ally listened, weighing it against countervailing arguments. In Watt’s view ‘he was inclined to assume too many responsibilities himself and to rely too little upon his staff’,’ but the result for Dixon was full command of the facts

and the control that goes with it, a visceral necessity for him. Keith Aickin would later point out that although Dixon got on well with Watt and admired him in many respects, he did not regard one of his qualities as being a capacity for quick decisions or for office management. He remained throughout highly critical of the organisation of the office and of Watt’s incapacity to increase its efficiency. The failure to delegate was, I think, due to the absence of

persons to whom work could be safely delegated. I am, of course, conscious that lawyers generally, judges and barristers in particular, are not accustomed to the delegation of tasks or decision-making to others and thus tend to be bad at delegating when they are in some non-legal situation. Notwithstanding that, I am sure that it was a conscious decision on Dixon’s part and not merely the ingrained habits of a life spent at the Bar and on the Bench.*

The Australian Legation, which was also the ministerial residence, was at 3120 Cleveland Ave, NW. It was a large, elegant house in red brick, its central portico supported by four Doric columns, two storeys high, in the Southern style, with large wings out to either side. The grounds were spacious and beautifully treed. In addition to Alan Watt, Dixon had the services of his Second Secretary Peter Heydon, his Third Secretary Keith Aickin, and a Commercial Counsellor, Professor James Brigden, formerly Secretary of the Department of Supply and Development and the Department of Munitions, with whom Dixon would work closely on Lend-Lease and reverse LendLease matters. In addition there were air and naval attachés and a scientific liaison officer. To an undefined extent Dixon’s responsibilities overlapped with those of Lewis R. Macgregor, Australian Government Trade Commissioner in North America and Director of the Australian General War Supplies Pro-

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curement Mission, who had just been relocated by Evatt from New York to Washington. Many problems would arise with Macgregor, whom Dixon

regarded as Evatt’s fifth columnist. Evatt would circumvent diplomatic

channels (and the arrangement for direct communication between Curtin

and Dixon) by sending instructions directly to Macgregor and requiring

him to deal with various American bodies without informing the Legation. There was also an Australian military mission in Washington headed by

Lieutenant-General Edward K. Smart with whom Dixon would liaise on

Australia’s changing military and strategical circumstances. During his first four or five days in Washington Dixon was introduced by Evatt to the key people in the military, men with whom his relations would be close and whose admiration he would enjoy—General George C. Marshall, Chief of Staff of the Army, Admiral Ernest J. King, Chief of Naval Operations (who briefed Dixon and Evatt on the Battle of Midway on 6 June), General Henry H. Arnold, Chief of the Army Air Corps, and others including Field Marshal Sir John Dill, British representative on the Combined (British and American) Chiefs of Staff Committee in Washington. Influence with these men, influence within the Combined Chiefs of Staff

Committee, influence with Secretary of War Henry L. Stimson (who briefed Evatt and Dixon on Midway on the Sth with the battle still in progress),

influence with Edward R. Stettinius who headed the Lend-Lease Adminis-

tration and was Special Assistant to the President, was vital to Australia’s

interests at a time when materials of war were scarce and in high demand within the United States itself and from Britain.? It was partly as a result of Dixon’s

representations to these men, not just in formal meetings but at

lunches, cocktail parties and other gatherings, as well as through pressure exerted from a distance by MacArthur, that the flow to Australia of aircraft, aviation fuel, petrol, diesel, oil, rubber, aluminium and the other essentials

of war increased substantially in the second half of 1942. Dixon’s relations with the senior military were good because he shared their factual, empirical approach to things (something that had long been evident in his legal judgments). Watt saw this clearly: ‘The Americans with whom he had closest relations at first were mostly “technical” people—General Marshall, Admiral King and others who did not speculate much and were not politicians but who assembled facts, i.e., guns, ammunition etc., and planned the war on

the basis of what had been assembled. They in return showed respect and trust for Dixon’.!° But Dixon needed to influence the people in government too. As Richard Casey later noted, the tasks that fell to Sir Owen Dixon . . . turned out to be very consider-

able and exacting in relation to the conduct of the war in the South-West Pacific. Cordell Hull, Sumner Welles and Dean Acheson insisted on a

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proper governmental relationship between the United States and Australia, and resisted the military short-circuiting between General MacArthur and the Service Chiefs in Washington that had been anticipated."

Evatt was one of those who over-optimistically anticipated such shortcutting, cabling Curtin on 10 June: I think that on the strategic level the best results for Australia would flow from General MacArthur’s personal representations to General Marshall. This of course would not preclude you from communicating with the President through Dixon at the highest level. However the President is always inclined to act on the recommendations of his Chiefs of Staff."

Dixon, though, quickly saw that he would need to develop interlinked

relationships with both military and government and earn the respect of both. Accompanied by Evatt, he presented his credentials to the President in the Oval Office on the morning of the 10th. Roosevelt talked about Midway, then took them into the Cabinet room for a meeting of the Pacific War

Council (at this stage scheduled weekly). Others at the meeting included the

British Ambassador Lord Halifax, the Dutch Ambassador Alexander Loudon, New Zealand’s Minister to the United States Walter Nash, Secretary to the President Stephen Early, and Edwin McCarthy, Australian representative in Washington on commerce and shipping. Midway dominated this and the following week’s meetings, and there was speculation about the when and where of a possible Japanese attack on the Soviet Union. Dixon was evidently impressed by Roosevelt’s ability to transcend the poliomyelitis that had taken the use of his legs twenty-one years earlier. He later described Roosevelt’s typical entry into these meetings: The first and indeed the most permanent impression that you received was the astonishing courage with which he overcame his affliction . . . We met in the Cabinet room. Mr Roosevelt was wheeled in by a negro attendant. It is not easy to forget the picture. His cheerful smile; the characteristic motion of his hand holding a cigarette in the long holder and waving us to our seats, and the cheerful words of greeting. From his wheeled chair, he was able with the strength of his arms to transfer him-

self to the swivel chair at the head of the table."

Later that day Evatt and his wife Mary caught a train west en route for

Australia, leaving Dixon to make his own way about."* The following day,

paying the expected courtesy visit, he saw Vice-President Henry Wallace, an

agriculturalist. ‘He had nothing to say.’!5

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The other weekly meeting of significance was of Commonwealth Mis-

sions, at the British Embassy, an opportunity to put Australia’s views not just to Lord Halifax but to well-placed military men like Dill. Dixon always had a clear agenda of points to make or which he wished clarified, and his belief in the value of frankness won him respect and influence.'* That afternoon, for instance, meeting with Under-Secretary of State Sumner Welles, ‘I expld. (a) the fears of govt. (b) history of splits in labour party (c) AIF & AME. (d) waterside seamen & coal difficulties (e) submarines on coast & effect’.'” Two of these topics, the industrial troubles on the waterfront and the limited role of the AMF (restricted to Australian territory, though this

did include New Guinea), were somewhat compromising for Dixon, given

that American conscripts were being sent thousands of miles away to defend Australia. Dixon explained that Curtin found it difficult to propose passing an Act of Parliament to allow the AMF to be sent overseas, for this could

split the Labor Party, as the question of conscription for overseas service had done in World War I. Both topics were matters of notoriety in Washington, and hence unavoidable.

On 16 June Dixon paid a courtesy call on the Soviet Ambassador, Maxim Litvinov (the start of a friendship of sorts). Litvinov had been Stalin’s Foreign Minister and the strongest advocate in Europe for collective security

against Hitler, but Stalin had feared that, given the weakness of Britain and

France on the issue and the ardour of Litvinov (a Jew), the policy would land him in a war with Germany, so Litvinov had been replaced by the non-Jewish Molotov and relegated to Washington. Later that day Dixon saw Dean Acheson about the Lend-Lease agreement. To the dislike of Australia and New Zealand the agreement operated indirectly, via the United Kingdom. Dixon wanted it to operate directly through the State Department, but Acheson ‘made it clear that he did not wish US to be involved in any diffce

between A/sia & UK & did not care whether agt direct or not.’® That evening

Frankfurter had Dixon to dinner with Secretary of War Stimson, Mr Justice Jackson of the Supreme Court, and public affairs commentator Walter Lippmann. Though Dixon got on well with Lippmann, he wrote to Sir Frederic Eggleston, Australian Minister to China at Chungking, that ‘The degree to

which the press are admitted here into the confidence of the strategists and

of our Menelaus and Agamemnon is perfectly astonishing. I am told that a little time ago it was not so and that the present openness of Allied planning is the consequence of pressure from newspapers and radio interests’.'? He himself saw the press as little as possible, probably a mistake because he

could have enlisted them in his causes. Dixon preferred to work through David (Harry) Bailey, Director of the Australian News and Information

Bureau in New York, and indirectly through the American Office of War

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Information (he got on well with the Assistant Director there, the poet Archibald MacLeish). He was happy to broadcast over radio stations. Occasionally he could be witty at reporters’ expense, telling one journalist who asked whether Australia, which had sent troops to Timor, also wanted Sumatra, ‘There’s little interest in crooners in Australia’.

On the 17th he saw Halifax to tell him of Evatt’s complaints about Australia not having been consulted when the agreement between the United States and Britain to give priority to the European war was made in January, ‘that our Ministry needed handling: that E’s visit to England had changed his attitude & it would be a pity if this opportunity were lost or turned to bad ac/t’. Halifax promised to write a note to Churchill who was then at Hyde Park, Roosevelt’s home on the Hudson, and sanctioned a telegram to Curtin

confirming this, which Dixon sent.”° On the 25th Dixon was able to talk to Churchill directly at a meeting of Dominion Ministers in Washington. Dixon’s wartime diaries are packed with meetings like these day after day, on the full range of the Legation’s concerns, and it is clear that from the start Dixon was on top of the job, working long hours and delegating little. He made friends easily and in his presence people allowed their guard to fall. Litvinov is an example. On 2 July he repaid Dixon’s visit: ‘we talked alone of the situation about wh he is depressed’.”! It is unlikely that Dixon

converted him to optimism.

By early July Dixon had decided that meetings with the senior military, including the Combined Chiefs of Staff Committee, and associated liaison with resident Australian staff officers were more likely to produce increased supplies for Australia than meetings with senior members of government, provided Henry Stimson, Cordell Hull, Sumner Welles and Dean Acheson were kept apprised of what he was doing. He was also convinced by now that most of the important decisions about the war were being made in Washington, not London. Writing on the 13th to Sir Frederic Eggleston, he noted: It is here that the Combined Chiefs of Staff meet—and here that the order of battle for each theatre is settled and it is here that the primary allocation of the pooled production is decided and the detailed allocation of the United States production takes place. Of course the Chiefs of Staff in London exert a powerful influence. I am not in a position to assess the part played by Roosevelt and Churchill. The first I have now seen a number of times; my first-hand knowledge of the second is confined to one day. But I am inclined to the view that neither plays such an

original or such a dominant part as in Australia we were led to suppose.

When there has been an opposition between the professional advice of

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the services and political exigencies or considerations of a mixed nature, as in the cases of Greece, and of convoys to Murmansk, the decision has

been that of the Prime Minister and the President. But I think that now at all events it is the professional advisers who mould the strategical

opinion of the governments.

Alluding to Australia, he went on to observe that ‘Once a theatre of war is put under American control, there is a great reluctance on the part of the British Chiefs of Staff to raise questions about what is being done’. His main

problem, he admitted, was that ‘I don’t really know whose are the decisive minds. Indeed I cannot feel that operation of mind in action of which I think you are always conscious when powerful intelligences are directing events. Much of the organization is just a facade forming part of the make-believe which democratic governments seem to find indispensable’. Then in typical fashion he added, ‘But I doubt whether any attempt to improve the organization existing now would lead to anything more satisfactory’.?? There was a highly revealing, devastating meeting at the Pentagon on 3 July 1942 with General Marshall, a generous and straightforward man with no political axe to grind. Dixon began by saying he had not worried Marshall because he knew that the General had been preoccupied with the course of events, but that it was desirable that the Chiefs of Staff, both Joint and Combined, ‘give some explanations’ to the Australian Government ‘and keep it advised of what was decided’. Marshall, concerned not to queer any political pitches, then extracted from Dixon a solemn promise not to tell his Government what he was about to reveal. He set out the history of the battles of the Coral Sea and Midway, saying that at one stage the Australian Government had nearly destroyed Australia because they had said publicly that the Japanese forces had congregated in the Marshall Islands, ‘a thing known only through breaking the Jap cypher as the Japs must have been aware’. Repeatedly the Australian Government had broken necessary secrecy and he was very frightened of them, knowing he could not tell them anything with safety. There was a great scarcity of aircraft for American purposes and it was impossible to imperil the United States for Australia, a country ‘to which much had been devoted’. What Marshall did not say was that the Joint Chiefs of Staff at their meeting the previous day, 2 July, had just ordered the retaking of the area comprising New Guinea, New Britain and New Ireland, their first strategic directive for the Pacific war.

One notices in Dixon’s war diaries few references to his taking advice from Alan Watt. This was not only a reflection on Watt. It was in Dixon’s

nature to familiarise himself with every necessary detail of the job to the point where

he was an independent agent. He relied far more heavily on

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Professor Brigden than on Watt, necessarily so in the specialised area of Lend-Lease negotiations. After six months of feeling under-used, Watt put his considered view of Dixon in a private letter to his friend, J. D. Hood, at the Department of External Affairs in Canberra. It is a perceptive letter going to the heart of Dixon’s character, but because it comes from someone dealing

with his relegation to slighter significance than he felt appropriate it needs to be read warily. Moreover Watt would come to revise his opinion in a later letter to Hood. Watt began by referring to Dixon as ‘a man of outstanding character and great ability’, a gentleman ‘in the best sense of that muchabused word’, considerate,

incapable of any mean

thing, ‘self-contained,

careless of other people’s opinion and bereft of almost all ambitions. He is a very great man whom Australia might well be proud of having produced’. He then went on to say that Dixon would have risen to great heights in the legal world of London fifty years earlier but that in the Washington of 1942 he ‘is not only out of place, but possibly doing Australia unintentionally considerable disservice’-—strong words unsupported by hard evidence. He criticised Dixon for his distrust of ‘broad generalisations, impressions, intuitions. He wants facts, all the facts, and upon them he will make a very independent judgment’. However, Dixon might have replied that generalisations, impressions and intuitions come cheap and, being frequently mistaken, are rightly distrusted. ‘He is extremely witty’, Watt observed, ‘but his humour induces admiration rather than laughter. Irony makes few friends, least of all in the United States of America’. But Dixon did make friends, close and influential ones, and in his memoirs Watt says that Dixon’s laughter ‘was

infectious’.”4 Dixon’s capacity for work seemed positively unhuman to Watt: ‘He

prepares a case and argues it extremely well, whatever his particular personal views. But when the case is over many barristers or human beings repair to the hotel bar or its psychological equivalent. He moves on instead to the next case. Yet he is not all intellect’, Watt allowed. He is deeply wrapped up in his family, and gentle with them, be very occasionally with others. His emotions however have in control for so long that they rarely break bounds. This is pity, for his intelligence and his wide experience have led him little from human nature and always to anticipate the worst.

as he can been held perhaps a to expect

It is worth noting that Dixon’s diaries reveal a variety of pessimists in Washington and Canberra, all trying to win the war as he was—it was 1942 and the Axis had the upper hand everywhere. One person’s pessimism is another person’s realism. ‘I sometimes leave his room’, Watt continued,

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wondering whether he is extremely far-sighted or incredibly shortsighted. He thinks far beyond the immediate problem—fifty or one hundred years ahead. Yet his estimate of the present at times seems to me blind or pig-headed or inaccurate because over-pessimistic ... He can discuss the basis of European civilisation or how many aeroplanes we need in New Guinea—but not so easily or so well the reasons for the Republican swing during the last elections here.

Dixon was also too critical of America, hating ‘the vulgarity, the advertisement which is far better than the product advertised, the childish optimism, the hail-fellow-well-met greeting, the frequent shallowness and inefficiency’, while not sufficiently appreciating ‘the far more important aspects of American life which I find important and valuable’. This letter is important for its window on Dixon’s initial months in Washington. Of course, he became more tolerant of American ways the longer he remained there. Dean Acheson’s assessment of Dixon’s full tenure of office, from the American point of view, is equally illuminating. In 1953 he told Sir Oliver Franks, British Ambassador to the United States during Acheson’s tenure as Secretary of State under Truman, ‘Only today I was writing about you. It was 4 propos of an honorary degree at Yale for Owen Dixon. I said that second only to you he had been pre-eminent in inspiring complete trust and confidence in us in his disinterestedness, wisdom and integrity’. The cynical view is that an ambassador is not supposed to be disinterested or full of integrity, but to ‘lie abroad for the good of his country’.”’ Still, Acheson would not have written in that way of an ambassador ‘out of place’ in Washington (which Dixon was certainly not after 1942), of a compulsive pessimist, or of anyone noticeably anti-American. Dixon liked Americans of the right background, of whom there was no shortage in Washington in those years. The real anti-American was Halifax.”* Acheson, like Dixon, was also a man of integrity, ‘a most able man of passionate convictions’, as Richard Casey described him. ‘He has a highly constructive and critical mind, is an unswerving Democrat, and a devoted and generous friend—a liberal-minded man in the best sense’.?? Such people recognise and trust each other. On 9 July Dixon flew to California. Watt notes that Dixon only ‘left Washington when compelled by circumstance’,*° but the diaries show that

he was often so compelled. This trip was to open an exhibition of Australian artifacts at the Los Angeles County Museum of History, Science and Art, but he also took the opportunity to indulge his technical interests, visiting the

aircraft manufacturers for whose products he was helping secure orders. At Lockheed’s Burbank plant the President and Chairman of the Board entertained him, showing him along the production lines where they were

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assembling and fitting out the latest advanced versions of the P38 Lightning (capable of over 400 miles per hour, and slated for action under American pilots around New Guinea), military transport aircraft and a converted transport type, the Hudson bomber, built for Australia, New Zealand and Canada. After lunch he went to the Douglas plant at Santa Monica and their new branch at Long Beach, inspecting their production of C47 transports and medium bombers.?! The next day he opened the exhibition with a broadcast speech. Australia, he said, confronted an enemy threatening her very existence, but could not provide her own war materials, and also needed

the assistance provided by the expeditionary force under a ‘renowned Ameri-

can’. The interest of America in Australia was founded

on something more, indeed on something other, than a conviction that the United Nations cannot allow this southern Anglo-Saxon land to fall under an alien conqueror. It is founded on the plain strategical truth that the island continent must be held, strengthened and developed as a naval,

military and air base that will play an almost indispensable part in the defeat of the Japanese.

Australia had received the American troops ‘in a spirit of comradeship which

could not have existed if the culture of the two communities had not been

akin’? This emphasis on cultural affinity recurs in his speeches in America,

disguising his hope (too optimistic as it would turn out) that American cultural influences on Australia could be wound back after the war in favour

of the closer kinship with Britain. His sanguine use of the term ‘United Nations’ is interesting. At this stage it meant the allies, principally the United States, Britain and the independent British Dominions as they were still called. His attitude towards the postwar United Nations, which, incident-

ally, he shared with Dean Acheson, was one of contempt. That evening a supper party was held in his honour where guests

included British film producer Sir Alexander Korda, screen star Maureen

O’Sullivan, actor Nigel Bruce, screen writer John Lloyd Balderston and the Australian baritone John Brownlee.” Back in Washington the incessant work had piled up, one reason why he preferred not to leave for long. There were requests to be submitted for more ships and shipping space (Edwin McCarthy, the accredited Australian shipping representative, handled this but needed the Legation’s help), negotiations on allocation of aircraft, and complex Lend-Lease and reverse LendLease matters to be discussed on a regular basis with Brigden, with Lewis Macgregor, the Australian Trade Commissioner and head of the War Supplies Procurement Mission (regularly in conflict with McCarthy, Dixon mediat-

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ing™), with Nash, the New Zealand Minister, with Halifax, with Acheson, with Canberra, all in preparation for the signing of a new agreement (3 September).*> On 17 July he was off again, this time on the night train for Boston to address the wool trade and visit the Harvard Law School.°* Alice had arrived with the children on 23 June following a stressful and uncomfortable passage across the Pacific, and Ted, Betty and Anne

were enrolled at the National Cathedral School, with separate sections for

boys and girls, the Cathedral completed his schooling). Alice relevant women including Mrs had five maids and a chauffeur

being in the middle (Franklin had by now quickly developed social relations with the Roosevelt, Mrs Hull and Mrs Acheson. She to manage, and the use of a car for official

purposes.?” American ways, however, took some accommodating: ‘I am

horrified’, she wrote home in August, ‘at the Americans attitude to marriage

& divorce ... They don’t seem to feel any shame; but regard it as smart

... On the surface here it is hard to believe there is a gigantic war going

on. Cars, cars, cars, everywhere.

Amusements

&

their national

baseball

everywhere’.*® Together with Sir Earle Page (returning to Australia from London where he had represented Australia in Cabinet meetings), Dixon saw Roosevelt on 21 July, the President mentioning the concentration of Japanese ships at Rabaul, the threat to Siberia, public pressure on his administration to

retake the Aleutian Islands, and the fact that he had telegraphed Churchill at the time of the latter’s dispute with Curtin after the fall of Singapore when Churchill had tried to divert the returning 7th Division to Burma. He had told Churchill, ‘This has got to stop: it is too juvenile for war’.*? In Dixon’s discussions with him, Roosevelt was generally sympathetic to Australia’s needs, but not always to its policies and sense of priorities. Delays in the allocation of aircraft for the RAAF were proving hard to overcome, partly because Australia was demanding enough planes for over seventy squadrons—‘preposterous’ in the view of General Henry H. Arnold, Chief of the United States Army Air Corps, who knew (as did everyone else)

that Australia had nothing like enough men to crew them.” From early

August there was immense pressure on Dixon from Canberra to get these aircraft. At the meeting of the Pacific War Council on 29 July Roosevelt had discussed the German breakthrough towards the Caucasus and the Japanese

occupation of Buna and Gona, which constituted a threat to Port Moresby. Dixon informed Curtin the following day that he had pointed out the dangers involved in the occupation by the Japanese of points opposite to Port Moresby and the consequences which would follow

from

the

loss

of

Moresby

itself,

including

the

closing

of

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communications by sea with Darwin and I said that I was unaware of what reports the Commanding General had made to the Chiefs-of-Staff here and referred again to the question of air strength. After the meeting Captain McCrea informed me that the Chiefs-of-Staff had had the operations under their consideration and that the matter was being cared for. He did not say what was being done.*!

In its reply of 5 August the Australian Government quoted for Dixon’s benefit a recent cablegram sent to Churchill: The Government’s willing agreement to the temporary retention of the 9th Division in the Middle East is . . . conditional on an assurance being given by the United Kingdom Government that . . . its representatives in Washington will be instructed to do their utmost to ensure the allotment of the aircraft required for the re-equipment of the R.A.A.F. and the provision . . . of the equipment required for the programme ofa total of 73 squadrons by June, 1943.

Dixon was told to ‘support our representations to the fullest possible extent in Washington, especially with President and Dill who is fully aware of Mr.

Churchill’s undertakings’.“* Dixon immediately saw Dill and Marshall, Dill

saying that the British had pressed for an American decision on the aircraft

to be submitted to them, that the supply of planes ‘had just stuck’, and that the Americans were terribly short and hence trying to limit all British and allied supplies. Marshall promised action, then later insisted on a revised

submission. Admiral King pointed out the limited perspective of the Aus-

tralian Government in regard to theatre demands.*? Dixon even discussed the blockage with Harry Hopkins, the man who had administered Roosevelt’s New Deal policies through the 1930s, and was now his most trusted adviser, to no avail. Hopkins, who resided at the White House to be close to

the President, said it was settled policy to defeat Germany as the main enemy. They did not want this called in question, for instance in any future conference with Curtin. Nor could they give out strategical information. Dixon suggested sending out a representative of the President ‘to deal with Curtin’, and Hopkins thought he and Marshall might go.“ On 12 September Dixon spent 50 minutes with the President himself on the matter. Roosevelt spoke first about New Guinea and Kokoda, asked about Australia’s attempts to halt inflation, discussed the war and mentioned ‘operations in preparation’ without describing them. On the question of aircraft supply, Roosevelt emphasised the insufficient numbers of airworthy fighter planes being produced and the scarcity of shipping. Planes could

be flown out, Dixon suggested. Not so in respect of short-range fighters and

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pursuit planes, Roosevelt countered. He was sympathetic, he said, but his own son Elliott had had trouble getting his bombers ready to go to the United

Kingdom. Dixon spoke of the need to draw a line and hold it in the SouthWest Pacific Area, questioning whether Japan would continue to allow the

region to be used as a holding area. Curtin needed to be persuaded to accept

whatever decision was made, either by forcing him to come to Washington or sending someone in whom the President had confidence to see Curtin in Australia. Roosevelt knew Dixon had Hopkins in mind. ‘I am not going to let him go’, he insisted. ‘He is not fit for such a journey. Besides I need him

here’. Hopkins was dealing with finance questions then being debated in the

Senate. The President said he would consult Marshall, but that he himself was wholly sympathetic.** Everyone was perfectly frank with Dixon and trusted him, but it was difficult to put Australia’s case in the teeth of an Anglo-American global strategy into which Australia had no input, not because its capacity for secrecy was not trusted—and it was not—but because it was a relatively small power, one to which much was already being devoted. In any case the number of American squadrons in the region was increasing. Australia would get its planes. It could wait awhile. By November the number of aircraft ready to be sent would be causing shipping difficulties.“* Hessell Duncan Hall, of the British War Materials Mission to Washington, told Dixon frankly that he thought Australian influence and prestige had declined since Casey’s resignation, ‘suggesting mission as one cause’.‘” Certainly Casey had been highly regarded, but so was Dixon. Possibly Casey was more effective at the political level. After he had left, Evatt’s abrasive style had created a bad

impression. At a meeting in which Evatt had criticised Britain’s ‘selfishness’

in pressing demands for its own theatre, General Marshall had risen from

his chair saying he did not propose to listen to the denigration of ‘our most important ally’.** This bad atmosphere Dixon instantly cleared. Communication from Canberra was certainly at issue. At the end of July Dixon read in the evening paper that Lieutenant-General Smart, head of the Australian military mission to Washington, a man with whom he was working very closely, was being sent to England and that Lieutenant-General Vernon Sturdee was to take his place. Smart himself learned of his transfer from a newspaper. In September Dixon received telegrams informing him that his air attaché was being replaced. ‘I refuse to remonstrate’, he wrote in his

diary, ‘though I felt I shd have been consulted’.*? In late August he had visited Detroit to address the Annual Dinner of the American Bar Association (as he would do again, in Chicago, the follow-

ing year), and in late September and early October he found time to visit a number of the Supreme Court justices: Stone, Black, Douglas, Murphy,

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Jackson. The Chief Justice, Harlan Fiske Stone, offered his views on earlier

judges including Holmes, and on Pollock ‘whom he thought dull in con-

versn but brilliant in public speech & writing’, and explained the Supreme Court practice as to judgments. Mr Justice Black surprised Dixon ‘by his style which was not uncultivated & he took an interest in the legal side of the Constitution but he had no idea of effect of a string of authority’. (As a young man Hugo Black had been a Wizard in the Alabama Ku Klux Klan, but since his conversion to liberalism nobody mentioned that any more and he was generally considered one of the Court’s finest.) Mr Justice Douglas apparently had nothing of note to say about the law, Dixon observing only that he ‘questioned me about India. I replied we were afraid of E [East?] including India [because] whether by conquest or peaceful penetration they wd overrun us’. With Jackson he discussed the commerce power.*! On 1 October Field Marshal Dill with General Marshall’s permission showed Dixon a manuscript article for Colliers magazine which the censor

would forbid because it would damage relations with Australia. ‘It attacked

us in all directions’, Dixon noted. Dill spoke of the war ‘as now equivalent to 1917 8& doubted whether US wd prosecute it agst Germany to a conclusion’.*2 As he was the most senior British officer in Washington, his pessimism at this stage is noteworthy. At the conclusion of the 7 October meeting of the Pacific War Council, Roosevelt saw Dixon privately to say that he was concerned over the training of Australian troops. Dixon asked was it thought not to be rigorous enough. Yes, the President replied, and the discipline was not right. He distinguished between the conscript militia (AMF)

and the volunteers who had returned from the Middle East (AIF),

the latter being ‘good, or all right’. (Roosevelt, like everyone else, knew that many of the militia stationed in Darwin had run south when the first bombs had fallen there, and that discipline had not improved much.) Dixon spoke of the differences between troops in formation and on leave, and of MacArthur’s remaining at his office and possibly ‘not seeing things Australian’. Roosevelt spoke of the Australian troops being in their own country and the

attendant difficulties, particularly in connection with officers. But he sup-

posed there was nothing much he or Dixon could do about it from their end.*? Worried about the President’s remarks, Dixon went first thing next morning to see Dill who thought he should write home on the subject, but Dixon felt he should see General Marshall, Dill accordingly arranging a

meeting for 11 a.m. Marshall told Dixon he had spoken to the President

who had said he would take up the question of the Australian troops with

Curtin. Marshall had asked him not to, and regretted that the President had spoken to Dixon. He felt it was a matter for MacArthur and thought nothing

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but harm could come of Dixon’s communicating with Curtin on the issue. For himself, Marshall added, He thought training & discipline might be all right but difficulty lay in officers. We had trained British men last war: not this. He spoke vaguely of N.G. & gave me the impression that trouble was in the fighting not the training of our troops. Sd too many in NG already & they had had to sen [send] US on top[.] I agreed to do nothing & speak to P [President] next meeting.**

This was during the bloody second phase of the fighting along the Kokoda Trail (now seen as one of Australia’s heroic moments), where the AIF were performing valiantly following the retreat of mid-September to Imita Ridge; support was being provided by the American 32nd Division. Now Marshall was asking, in effect, why the Australians could not handle this action by themselves. Such stinging criticism of the quality of Australia’s contribution to the war effort, from the highest quarters, left an impression on Dixon. In February 1947 he would find himself discussing the subject with MajorGeneral

Sydney

Rowell

(Australian

commander,

New

Guinea

Force,

August-September 1942, relieved in favour of Lieutenant-General Edmund Herring), noting afterwards, ‘Talked to Rowell who concurred in the view

that Australia’s war effort had been disgraceful & the people had lost morale’

—far from the received view in Australia.*° It was perhaps a comment on Australia’s overall war effort rather than a discounting of the valour of the 2nd AIF. Arriving in New York with Aickin, Alice and Ted on 15 October, he was met by the Trade Commissioner, James Garside, and checked in at

the St Regis. On the 16th he addressed the Australian Society at the Biltmore after Australian dramatic soprano Marjorie Lawrence (Metropolitan

Opera from 1935) had given a three-song recital from her wheel chair; she

had contracted polio in 1941. Apart from wool-related excursions and a

lunch with the Council on Foreign Relations at the Century Club (Allen Dulles of the Overseas Security Service, or OSS, attended), this five-day visit to New York was mostly pleasure—sightseeing, bookshops, cinemas

and so on.

Returned

to Washington,

he found

that his Second

Secretary, Peter

Heydon, was being transferred to Moscow, to be replaced by Laurence (‘Jim’) McIntyre. ‘I sent a telegram concerning staff apptments & failure to consult me’, Dixon noted.°” A book critical of Australia, Cecil Brown’s Singapore to Suez, had just appeared despite efforts by Dixon to have it suppressed, and an article by Hanson Baldwin of similar tendency appeared in

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the Times on 26 October (just over two weeks later Baldwin would write in the same paper that the situation in New Guinea had been saved by American troops). Dixon telegraphed an abstract of the article to Canberra, next day seeing Elmer Davis, Director of the Office of War Information, to complain—Davis was ‘Sympathetic but vague’.°* Dixon was obviously concerned about Australian morale: anything critical of the nation’s war effort

should be censored. That afternoon the Dixons went out to Sumner Welles’ house on the

banks of the Potomac for tea, where guests included the Grand Duchess of Luxembourg.” Alice’s report of this makes interesting reading: The house is like an English country home of large dimensions. It is set in a lovely natural wood with formal gardens around the house, a wonderful swimming pool & terraces.—He is tall stately, & more English than the English, (again the canker! his first wife is somewhere in California—her

(our

hostess)

first husband

married

a Vanderbilt

widow). however I admired him apart from that; & certainly I admired their wonderful setting,—wealth everywhere; but not vulgar display,— butler & 2 other men servants, huge log fire,—dogs. & great formality . .. wonderful silver tea service, nice food; but ruined tea. They add tea leaves & never think of pouring boiling water on tea leaves. Each of us in turn was

taken

&

presented

to the Grand

Duchess

...

[Sumner

Welles] had a talk with me on Australia & was very nice indeed. I was thinking—all this! in a Democracy.©

People paid attention to Alice. Mme Litvinov, ‘quite a celebrity all most’, who had repeatedly declined to see Mrs Evatt, spent one and a half hours on her first call on Lady Dixon. The President wrote asking Lady Dixon to sponsor the new USS Canberra (then under construction), named after the

Australian cruiser lost on the night of 8-9 August, in the opening stage of the long and bloody assault by American marines on Guadalcanal that turned the war in the Pacific. It was ‘in honour of our brave ship’, she wrote. ‘At yesterday’s Pacific War Council he said to Owen I am glad Lady Dixon is able to sponsor that cruiser!!’6" At the end of October Dixon saw Secretary of the Navy Colonel

Franklin Knox to ask that more information be provided to Australia regard-

ing the engagement at Savo Island off Guadalcanal, when the Canberra was lost along with three American cruisers. Knox referred to possible ‘domes-

tic & international complications’ because of ‘the errors made which he

went through including absence of Adm Crutchley’ (Rear Admiral Victor Crutchley, VC, RN, commander, Australian Naval Squadron, whose flagship

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was the Australia).*? Dixon’s broadcast over station WWDC and the Atlantic network on 12 November was clearly intended to counter adverse comments

on Australia’s war effort circulating in Washington and beyond. He referred to recent successes: Australian troops had been prominent in ‘routing Rommel’s army’, while in New Guinea ‘the Japanese have retired before

Australian troops over the Owen Stanley ranges and beyond Kokoda’. He pointed out that ‘Including the men in the fighting services nearly sixty per

cent of the male population of Australia, between the ages of 14 and 65, are

employed full time on war work’. And of course he referred to the continu-

ing battle for Guadalcanal, which was costing so many American lives and showing that the war in the Pacific was not one ‘which the United States

was content to allow to stand still’.

In mid-November William Slater, the new Australian Minister to the Soviet Union, passed through Washington. Dixon took him to see Hull and Welles, and gave a dinner for him where guests included Acheson, Halifax, Litvinov, Dill and the Indian Minister, Sir Girja Bajpai, with whom Dixon

had become friendly. Slater’s ideology was appropriate to his new post:

when Frankfurter, over lunch, asked his opinion of the United States, Slater

replied that it had a ‘narrow capitalistic outlook’, ‘want of culture & underdevelopment of organized labour’.®

The month was relatively uneventful. On 3 December Dixon spoke in

New York to the American Foreign Law Association at the Lawyers’ Club. State judges and lawyers attended, including Professor Joseph P. Chamberlain, Chairman of the American Bar Association. In his paper, which was subsequently published,® Dixon examines how the principle of the separation of powers had been applied in Australia and considers the separation of executive from legislative power within a country whose executive sits in the legislature. Significant High Court cases are cited and Dixon shows how,

within the makeshift, ‘unsymmetrical if not inconsistent’ development of the separation of powers principle in Australia, the true quality of the legis-

lative power had been misunderstood. In the article, not reproduced in

Jesting Pilate (Dixon’s collected but selected papers), Dixon foreshadows

the decision of his Court in the Boilermakers’ Case of the 1950s.°” While in

New York Dixon attended a Pilgrims’ Dinner at the Plaza, where Canadian Prime Minister William Mackenzie King ‘spoke hot air’.** Paul Hasluck, a young officer with the Department of External Affairs in Canberra, was at this time with an Australian delegation to the Institute

of Pacific Relations in Canada and, passing through Washington on his way

home, was invited by Dixon to Christmas dinner. He recalled it years later

in his memoirs. There was

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just the family and Keith Aickin, who had been Dixon’s associate and had come with him to Washington, and myself. That afternoon the respectful awe I felt for Dixon as an eminent Australian matured into a warm regard for him as a man. He treated me as though he had known me for years and entered into conversation as though he valued my opinion. For about two hours at his fireside we talked and every topic was one worth talking about. Dixon had that knowledge and urbanity

to be able to talk without any thought of showing off and the grace to assume that others would naturally converse in the same way. One of the rarest and most delightful experiences for a young man is to take part in conversation with his betters when there is neither any attempt to impress nor any concern to belittle, when the language is choice but without pretension, and the subjects are drawn from the wisdom of ages. On the foundation of that Christmas afternoon I had the happiness in later years on a number of occasions of having long conversations with Dixon ... Dixon had the most distinguished mind I have been privileged to know among fellow Australians.

Dixon’s diary entry for the day includes the information that ‘We had Cdr Rosenthal, Hasluck

&

Aickin

to Xmas

dinner (the last a wet blanket).’

Alvord Rosenthal was the Air Attaché, whom Hasluck forgot. Dixon doesn’t allude to why Aickin was moody, though he was still so on the 28th, Lady Dixon having to speak to him about it.”° On New Year’s Day there was an afternoon party at the Welleses’ for the Diplomatic Corps, where Dixon met Mrs Woodrow Wilson. Casey flew in on 3 January looking ‘tired & ill’. On the 4th Dixon had to arbitrate between the respective contentions of McCarthy and McGregor . . . concerning the accumulation of cargoes & the expected rate of flow. Concluded that finished military goods & oil & high priority supplies should be safe in Jan & Feb & that whatever might be the result eg on paper pulp, it was inopportune & dangerous to press for a ship, but sd priorities must be kept.7!

On 7 January Dixon addressed the Federal Bar Association in Washington on The Proposed Enlargement of Federal Power in Australia to Deal with Post-War Reconstruction, a paper notable for its examination of the

vagueness of the Australian external affairs power in regard to treaties.”? In

the evening he gave a dinner for Casey, guests including Acheson from the State Department, Stettinius from the Office of Lend-Lease Administration, Gordon Macready, Chief of the British Army Staff in Washington, Sir

8 Ronald

Campbell,

MINISTER former

TO THE

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British Ambassador

in Lisbon,

159 Clive

Baillieu,

Director-General of the British Raw Materials Mission, Sir Willmott Lewis, Washington correspondent of the London Times, and Eugene Meyer, publisher of the Washington Post. Dixon may have seen reporters as little as possible, with Lippmann, his friend, the exception,”? but he courted influence with the press at the senior level. Casey gave them all an account of the actions of Montgomery’s 8th Army and the war in North Africa, ‘& then the next step was discussed. Casey took the view that we cd not in 1943 make any attack in Europe either southern or on Atlantic coast’.” The invasion of Italy would prove him wrong. Of these guests Casey and Acheson were closest to Dixon, Acheson inviting him to his own house for the 15th along with the Frankfurters, the Lehmans (Governor of New York and his wife), and the Milo Perkinses, where Felix Frankfurter recorded that ‘After dinner,

when the men were alone, the talk was sticky and stodgy’.’S

On major developments Dixon was in the dark like most others. When Roosevelt and Churchill met at Casablanca, for example, the location was known in advance by Halifax but not by Dixon. On 19 January Dixon received a cable from Curtin addressed to Churchill and Roosevelt as if they

would be in Washington and took it to Halifax. Churchill was not in town,

Halifax said—in Dixon’s words, ‘his whereabouts were secret tho’ he wd tell me if I wished[.] I sd I wd rather not know’. One rumour had the leaders in

Canada. On the 23rd Dixon dined with William S. Wasserman and his wife

who ‘told Alice that President was meeting other leaders at Cairo’. Nobody at David Bowes-Lyon’s for cocktails that evening knew either, or they weren’t saying.” It is significant that Halifax offered to give Dixon the information.

Halifax knew that Dixon was a valuable ally in a major running fight Britain

was having with Washington over postwar colonial policy, the Americans generally favouring decolonisation, beginning with India. Dixon went out of his way to counter this attitude at the highest levels in the State Department and reported back to Halifax on his endeavours.”’ Relations with the British Embassy were generally excellent, and the Australian Legation received ‘pinks’ (copies) of all but high security dispatches from the British Embassy to London.”* Dixon developed quite close friendships with people at the embassy, particularly Robert Brand, Head of the British Food Mission,

and David Bowes-Lyon.

With Alice he took the train to New York on 25 January where that

night he addressed the Australian Society of New York. Company included

the Brownlees, the Kerenskys (his wife was Australian), David (Harry) Bailey, Director of the Australian News and Information Bureau in New York, and a handful of others—being wartime, there were very few Aus-

tralians of note in New York. That day and the next (Australia Day) he

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made two broadcasts and introduced another by Curtin, as well as addressing the British Luncheon Club.” His address to the Australian Society

included an allusion to Aristotelian literary theory of a kind only he among

fellow Australians would even think of making: Australia ‘has watched

anxiously from the Southern Pacific the slow unfolding of the plot of the great and terrible drama of this century in which the characters are nations, a drama which has ignored the unities of time and of place and of action’.

His indictment of Japan was thoughtful and original, contrasting her to good effect with Germany:

She has no defeats to avenge, no violated national instincts to vindicate. She will be recognized always as a stranger to the issues of the conflict, one who has seized the opportunity to levy a war of conquest and aggrandisement which she had long planned, for which she had methodically and elaborately prepared and which she intended to carry on with calculated ruthlessness until she dominated Oceania and the Far East.*

He was in New York again a few days later seeing Bailey, broadcasting on

Australia’s war effort, attending the Foreign Press Club, exploring Washington Square, Library and Flying Springfield,

second-hand bookshops on Fourth Avenue, the New York Public the Federal Courts.*! with Secretary of the Navy Franklin Knox in his plane to Illinois, for Lincoln’s birthday on 12 February, Dixon was told

of the tensions between the Navy and MacArthur. The Pacific war, Knox

pointed out, was a naval war, ‘and yet there was McArthur [sic] & creating difficulties. It was a damned shame but there could be no solution unless Alia asked for it’.*? In Springfield Dixon laid a wreath at Lincoln’s grave. He caught the train to Chicago to see the Anzac Hospitality Centre, then proceeded to New York to address the British War Relief Society on the 16th in a speech showing how close he considered Australia’s ties with Britain, ties

he believed would continue strong after the war.® But his most important

address at this time was to the Executive Club in Memphis, warning of dangers attendant on the ‘beat Hitler first’ policy. The line from Timor

through New Guinea, New Britain and the Solomons had to be made unten-

able for the Japanese, but

For the time being the forces of the United Nations are to be concentrated upon the defeat of Germany. As the defeat of Germany has been placed first in the strategy of the United Nations we cannot in the meantime develop any large scale offensive against Japan. It is hardly necessary to point out to you that it must be Japan’s constant object to anticipate the offensive we propose after Germany’s collapse. She will try by every

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means to strengthen her position both logistically and strategically and at the same time to weaken our position in the Pacific. This means that whatever attack the Japanese high command may consider strategically and tactically wise, they will make.

This was a clear call for more American forces in the south-west Pacific. The most striking aspect a stronghold of the state judiciary, is its complacent account

of the speech, delivered (as Dixon was surely aware) in old Confederacy and to a large audience including the ringing advocacy of the White Australia Policy and its of the demise of the Australian Aboriginals:

We regard our country as a southern stronghold of the white race—a thing for which it is well fitted; and our population is European. The aboriginal native has retreated before the advance of civilisation, contact

with which he apparently cannot survive. The analogy in this country is the Red Indian, but the Australian Aboriginal is of a much lower state of development. He belongs to the Stone Age and no success has attended efforts to incorporate him in civilised society. His numbers do not exceed 60,000

and

he is now

to be met with

only in the remoter parts of

Australia.

There is satisfaction in the tone. Dixon’s attachment to the White Australia

Policy was strong and insistent throughout his life. He would disapprove of the large influx of southern Europeans after the war, wanting an Australia forever British. Through March he delivered more predictable addresses in

Richmond and Toronto, including one at the Annual Banquet of the Law

Club of the University of Toronto. He was also interviewed in Washington over station WWDC. In the Law Club address he was noticeably relaxed

about the continual weakening of the States.**

The two most senior American military men after MacArthur in the South-West Pacific Area, George C. Kenney, Commander of Allied Air Forces, and Lieutenant-General Richard K. Sutherland, Chief of Staff, Gen-

eral Headquarters, were in Washington in mid-March, and Sutherland saw

Dixon on the 23rd. He and Kenney, he said, ‘had come to get more air for

an offensive’, had failed to get what they wanted but had got something. A hundred American bombers slated for the United Kingdom should go to

Australia

instead, Sutherland thought. The Japanese were building up,

though perhaps not for an offensive, and in the event of their attacking in the south or south-west the British eastern fleet was in no shape to help. The

Australian militia (which could finally be sent to fight outside Australian territory, thanks to an Act of Parliament) were ‘not yet satisfactory’, the ground troops were inadequate and too many of them were stationed in southern

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and south-eastern Australia. Curtin’s representations to Washington were

‘co-ordinated with military appreciations to Washington, though not neces-

sarily in time’, ‘N. Africa violates strategical rules [because] supply lines parallel: Spain is the natural German line of attack’, China was of little use, and Japanese preparations were very complete in the islands. Later that day Air Marshal Richard Williams, RAAF Representative in Washington, told Dixon of his conversation with Kenney who had said he was unable to get enough bombers and transports, that thirty-three squadrons was ‘all the

RAAF could supply personnel for’, and that what was needed was an offen-

sive strategy.**

In value, this kind of information was far beyond anything Canberra

was supplying Dixon. First-hand knowledge would be even better. It was natural, therefore, that from early 1943 he should have been trying to arrange a visit to Australia and the war fronts to its north. The Government

agreed, but wanted Dixon to postpone his trip until late March so that it could coincide with a visit to Washington by Evatt. Dixon’s purposes, summarised in a letter to Eggleston, included: ‘the question of our relation to strategical decisions as well as to the day by day control from Washington of operations, the working of the Pacific War Council, better information, freer

consultation, and the position here of Australian representatives’. The Pacific

War Council was continuing to meet, he wrote. ‘It does not, however, grow more useful.’®” Felix Frankfurter’s diary throws light on Dixon’s plans and attitudes. On 25 February he recorded that Sir Owen Dixon, the Australian Minister, came to tea to tell me that he

had cabled to his Prime Minister, suggesting the desirability of a short trip to Australia for the purpose of a talk on a number of vital problems. Quite unexpectedly, the reply came from Evatt (who is Minister of External Affairs) that they thought that it was a good idea for Dixon to come for awhile but adding that Evatt would come here to represent Australia during Dixon’s absence. Dixon said he never contemplated such a sequel to his proposal. He then discussed the potentialities for irritations and conflicts that Evatt might bring due to his temperamental self-assertions, intensified by the feeling that the emphasis on the European theater of war subordinates the threat of Japan and therefore minimises Australia’s dangers. Dixon said the latter feeling is encouraged by MacArthur's restiveness who, while the New Guinea fight was on, was

engaged, but is now a little inactive again, and in any event had been somewhat disturbed as to his own future command in view of the decisions taken at Casablanca and the possibility of Wavell’s future responsibility. Dixon himself feels that there is no occasion for any new or special

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concern regarding the Australian situation, and he added with charming whimsy, ‘Of course it would be unpatriotic to suggest that Australia’s exposure is partly inescapable because she is such a large island in the Pacific waters.’**

A couple of weeks later, Frankfurter writes, We dined at Sir Owen Dixon’s, the Australian Minister. He told me that he had instructions from home that he is to await Evatt’s coming and not to go to Australia until he arrives. It is difficult from this end to make competent appraisals of Japanese purposes in the Pacific, that so far as we know she may be taking defensive measures against the invasion of Java or offensive measures against Australia.®

There was a dinner for Britain’s Foreign Secretary Anthony Eden at the Carlton on 29 March and Dixon was seated next to Maxim Litvinov, talking to him about Australian Labor radicalism, about the eighteenth-century traditions in the United States, about France, which Litvinov considered ‘corrupt & untrustworthy’, about Pierre Laval, its current Premier, whom Litvinov described as ‘a dishonest opportunist & a Moor’, and about ‘nationalism & sovereignty as an obstacle to order’. At Geneva, Litvinov said, they had not realised ‘that internal Germany meant Nazi of wh [which] aggression was an inseparable part’—his point seems to have been that Germans were natural (‘internal’) Nazis. Eden, whom

Dixon had met sev-

eral times over preceding days, took the opportunity to speak to him about the ‘Marett line’ (the influence of British anthropologist Robert Marett on attitudes within the Foreign Office to colonial races, weakening Britain’s will to maintain an empire), Eden’s regret at the Australian 9th Division’s

removal to Australia and its ‘excellence’, and his recollections of the fighting in 1918 at Villers-Bretonneux, relieved by the Australians.” Two days later Dixon saw the President following a meeting of the Pacific War Council (typically informal and superficial). He raised Curtin’s latest message to the President which, as usual, questioned priorities. Roosevelt said he would like Curtin to visit Washington, presumably to persuade him to take a wider view. Substantial help, he explained, had to be given to the Russians or they might make terms with the Germans, then Britain and the United States would ‘face the released forces’. He said he would ‘turn

round the statement that the strategy was to beat Hitler first & say it was

not to be defeated by Hitler before we dealt with the Japs’. Roosevelt ‘had repeatedly taken a piece of paper 8 had put down the various fronts[,] the forces required & the resources[,] estimating the risk’. The visit of Kenney and Sutherland, he commented, ‘had been very useful not only in dealing

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with strategy’ but with matters such as sending air crews to Australia to be

trained as squadrons rather than sent as trained squadrons, establishing ‘the kind of gadgets needed’ and getting these gadgets in Australia.®! The President was being diplomatically restrained. He left the hard words to Harry Hopkins. Through his closeness to Roosevelt, Hopkins was helping to shape Allied strategy. As Dixon later described him, ‘Ambition, self-interest, ostentation, or a desire for fame appeared in none of his work. He spared no exertion and no sacrifice. To describe his work would involve a narration of the higher Allied direction of the war’.** Hopkins invited Dixon to lunch with him at the White House on 7 April. He pointed out that it was easy to exaggerate the importance of Australian expressions of dissent from Allied plans, and Curtin’s messages. ‘They irritated the President who no longer as formally [formerly?] took trouble in answering them himself but flipped them over to someone else.’ Dixon’s main function, Hopkins thought, was to influence American opinion of Australia, and to influence too the important postwar plans that were already taking shape. Evatt, whose mission was about to arrive, ‘made Marshall mad’, Hopkins said, and ‘also King’. The President ‘too might be impatient’, but ‘otherwise the visit did not matter’. The strategy had been settled. He cited Mme Chiang Kai-shek (who had just visited Washington) as another nuisance—‘clever: but unavailing’. Hopkins’ conversation clearly reveals the attitude of Roosevelt, Marshall and King towards Prime Minister Curtin—essentially, ‘When will he take a wider view of Allied strategy?’ Dixon recorded nothing said

by himself in reply—what could decently be said? By this stage the battle for

Guadalcanal in the Solomons—as close to Brisbane as Port Moresby was— had been won by the United States marines at the staggering cost of 1700 dead and almost 5000 wounded. That said it all. Kenney’s mission, Hopkins

revealed, had resulted in two more American divisions ‘as well as air’ for the

South-West Pacific Area, good news for Australia. Hopkins became more discursive. MacArthur, he thought, had political ambitions and so could not quarrel with Curtin because of the handle it

would give people in Washington. The Queen’s birthday honour Curtin had arranged for him would do him harm in the United States (an honorary

knighthood of signally high order, Knight Grand Cross of the Order of the Bath). MacArthur, Hopkins believed, ‘conceded more than he really thought’ (perhaps to Curtin). He confided that Rabaul, on the front to Australia’s north, would be attacked that year. Other comments of note included the statement that Admiral King had always been logically convinced of the European strategy ‘8& wd sign for it: but invariably went away & forgot it & fought the Pacific war with the Navy’—one good reason, of course, why Dixon was on excellent terms with him.”

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This meeting, and the one a few days earlier with Roosevelt, show

Dixon’s closeness to the White House and might seem to raise the question:

Had he become the trusted, sympathetic confidant of people with whom he should have been struggling? Had he been ‘captured’? Reflection shows the assumptions behind such questions to be foolish. The President and Hopkins had nothing to gain by giving Dixon the information they did, he could do nothing for them, and nothing they could say would broaden the attitudes of Curtin and Evatt, which clearly did not matter much anyway—that was the bottom line. Roosevelt and Hopkins were taking the

trouble to brief someone they liked and trusted so that there would be no misunderstandings. The same applied the following day when General Marshall told Dixon secrets that no one in Washington would ever have told Evatt: To Pentagon to see Gen. Marshall who sd he trusted me & he wd tell me what I was not to say to a living person. Told me of strategy agst Japs. thro Burmah{,] use of Chinese troops & training[.] Intention to take Clark I. Present operations in Aleutians. He and K going out to A/ia abt 1st May[.] Wavells staff supine{.] Dill’s contribution to War greater than any man’s he knew[.] Stimson came in. Later Hopkins.

Why did the General confide in Dixon? Because this great soul, later Secretary of State, and after whom the postwar Marshall Plan would be named, considered Dixon ‘the most perceptive and understanding of the representatives in the war’, as he later told David Bowes-Lyon.” At a time when its

Government was not held in great respect and esteem in Washington, Australia was fortunate in having a man there generating sympathy for his brief through the respect and esteem in which he was held. That is the true assess-

ment of Dixon’s mission. Curtin knew it or he would have had him replaced.

A more aggressive Australian minister (Evatt, say) might possibly have gained as much for Australia (to shut him up), but at the expense of every last shred of good will. The Evatts and their entourage arrived on 10 April, putting up at the

Legation, and there was soon a dispute over whether the mission or the Legation should foot the bill. Evatt always took his breakfast in bed. Dixon’s eldest daughter Elizabeth, then fourteen, remembers Evatt’s sloppy and disdainful ways. As he read through the morning newspapers, propped up by the pillows and the bedhead, he would cast each completed page across the floor. The servants could clean up after him; that was why they

were there. ‘He behaved like a pig.’** Though it had been made crystal clear

to Dixon that Roosevelt, Hopkins, Marshall and King would have preferred

not to see Evatt, and that ‘the visit did not matter’, meetings were arranged

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with them and Dixon gave cocktail and dinner parties in Evatt’s honour. The Legation officers from Watt down paid court to Evatt and ignored Dixon. By the 14th, having discussed shipping and one or two other matters with Evatt, Dixon noted that ‘I had very little more to say to E. but obviously Watt whom I saw early & to whom yesterday I spoke somewhat resentfully over neglect of me for E. by all, had had a bad time & was very torn. I spoke appreciatively of him’.*” That same afternoon Dixon flew out, leaving Evatt

in occupation for the interim but knowing that no serious harm could come of it—‘the visit did not matter’.

In San Francisco Dixon found no pile-up of goods awaiting shipment— so much for the complaints from Lewis Macgregor and the Americans about brakes on procurement because of cargo space.” The flight to Australia took almost a week, the point of arrival Amberley near Brisbane, 22 April 1943. That day at 5 p.m. he saw General Douglas MacArthur, Commanderin-Chief, South-West Pacific Area, who ‘orated’ on various topics: the first victory of the Bismark Sea had been fruitless, he complained, because of

failure to follow up, Kenney and Sutherland had been sent to avert an order

to attack Rabaul, the North African campaign was just ‘political’, any invasion of Europe was ‘hopeless’, the Russian front was ‘more or less stable with fluctuations’, Japan was becoming the greatest power, and so on.” MacArthur was far from an infallible source—but then Washington had

taught Dixon to be sceptical about him.

After seeing General Sir Thomas Blamey, Commander-in-Chief of Australian Military Forces, Dixon flew to Sydney where he was welcomed by Deputy Prime Minister Frank Forde and spoke to the press.' Over the following days, there and in Melbourne, he saw scores of people—politicians, senior military, officers in External Affairs, the key wartime authorities such as Essington Lewis. To Treasurer Ben Chifley he criticised Lewis Macgregor’s War Supplies Procurement Mission.” Dixon was friendly towards Macgregor (many others were not), wishing him no harm, but Macgregor had hurt his own credibility by overstating arguments to the Americans.? During long interviews with Prime Minister Curtin in Melbourne on 10, 11 and 12 May Dixon spoke ‘plainly’ about Evatt, Watt and Macgregor (Evatt was undermining Dixon through both), and the want of information. Just how plainly he spoke in regard to Evatt is indicated by something Viscount Bruce later

disclosed to Dixon: during Curtin’s 1944 visit to London, Bruce had told Curtin ‘how damaging & reprehensible was Evatts conduct & policy. Curtin

sd Owen Dixon has already told me & much more than you can say’.

Invited on the afternoon of the 12th into the War Cabinet (‘they were a pusillanimous crew’, he later told Paul Hasluck’), Dixon pointed out that although American military authorities preferred to deal with military rather

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than civil representatives of foreign states, he had overcome this, establishing close relations with Admiral King and General Marshall. However, he was

being inadequately briefed from Canberra on operations and trends in the

Australian region and this had to change. Lieutenant-General Smart and Air Marshal Williams, Australia’s senior military representatives in Washington, ‘kept him informed, but he regarded them as being directly responsible to their own Chiefs of Staff’. The Pacific War Council ‘was not a very effective body. It was the practice of the President to make a general statement to the Council at each meeting, but he always avoided critical issues . .. No agenda were submitted and no minutes were kept’. Still, ‘The advantage of the Council was that it enabled the views of the nations represented to be kept prominently before the President’. As for any specific request, ‘an approach to General Marshall and Admiral King would have better prospects of suc-

cess than if it were placed before the Pacific War Council’, provided it were

‘a detailed and closely reasoned appreciation of Australia’s case’—again the need for full information. He thought David (Harry) Bailey, the publicity representative in New York, was effective ‘in countering published statements that were unfavourable to Australia’. The following day he made some of the same points to the Advisory War Council, minus the criticisms (the Opposition were represented and might play on criticism).” At Canberra on 21 May he got everything he wanted from Curtin: the missions at Washington (Macgregor’s and the military ones) would be responsible in the first instance to Dixon (though in fact Evatt would continue to undermine him); in future he would be consulted and advised over

changes to his staff, the number of which would be increased; and from now on he would be ‘writing and telegraphing to him [Curtin] alone’, by-

passing Evatt entirely—‘to all of which he agreed’. There could be no

stronger proof of how highly Curtin regarded the work Dixon had already done in Washington. They then lunched at the Prime Minister’s Lodge with American Envoy Nelson Johnson and W. R. Hodgson of External Affairs.®

Having bought a khaki shirt, trousers, shorts and hat, Dixon flew north

to inspect the New Guinea fronts. An extraordinary event occurred on the tarmac at Townsville. As he noted in his diary, ‘I felt that gas had not been put in & on warming up a USA[A]C Major was induced to inquire. It was found that we could not have gone more than 30 minutes. Plane a C47[.] Left 12.30 or so & reached Moresby at something to 5’.? Dixon would later give his associate, John Read, a more detailed account of the incident: Dixon

related

to me

that the pilot and the high-ranking wartime personne] left the tarmac for drinks in the wet canteen whilst the plane

was being refuelled. Dixon remained on the tarmac and observed that

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although a fuel tanker and crew appeared to refuel the plane, he was almost certain (for reasons that I cannot now recall) that the plane had

not, in fact, been refuelled. When the other personnel and the pilot returned, Dixon went up to the pilot in the cockpit to tell him that he thought the plane had not been refuelled, but the pilot assured Dixon that it had. Dixon then noticed the fuel gauges which confirmed his suspicions, but the pilot told him that that was due to an electrical fault. Despite the fact that everyone in the plane was getting annoyed at the delay, at Dixon’s insistence the fuel tanks were tested with dipsticks,

revealing that indeed the plane had not been refuelled.'°

That evening Dixon and Lieutenant-General Sir Edmund Herring, commanding New Guinea Force, dined with American officers including Brigadier-General Paul Wurtsmith, whose Fifth Fighter Command was dirtying up in combat some of the very same Lightnings Dixon had inspected on Lockheed’s assembly lines the previous July. Combined Australian and American operations were discussed and the expanded port facilities inspected in company with Lieutenant-General Sir Leslie Morshead, General Officer Commanding 2nd Australian Army Corps, and Vice-Admiral Arthur S. Carpender, Commander, Allied Naval Forces, South-West Pacific Area. On 4 June Herring, his batman and Dixon climbed into one twin-engined Beaufighter, Morshead and Major-General Frank Berryman of New Guinea Force into another, and they flew to Dobodura, inland from Buna, where they were met by Major-General Horace Fuller, Commander of the 41st United States Infantry Division (the main American land force in New Guinea). Fuller drove them to Oro Bay and then, after lunch at his headquarters, to Buna and Buna Mission, taken by the Americans in savage fighting the previous December—January. The tropical vegetation around the area ran riot, the waterways spreading out into vast swamplands breeding mosquitoes and malaria. Allied battle casualties before Buna had run to 2870, over 900 of them Australian, over 1900 American. Next day Fuller

took them to Soputa, then up the track to Sanananda, the scene of more fierce fighting (around 1400 Australian casualties, 800 American). Further north-east up the coast, most of it still occupied by the Japanese, heavy combat was developing in the direction of Salamaua and Lae, and Dixon was not taken further than the Huggins roadblock. On the 5th he, Herring,

Morshead and Berryman flew in their Beaufighters south-east to Milne Bay where Major-General Edward Milford, General Officer Commanding AIF, showed Dixon over what had been a battlefield the previous September when the Japanese had attempted to occupy the strategic town. There were

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several airfields here from which American and Australian Lightnings and

Tomahawks could fan out to engage the Japanese across a wide arc to the north. Major-General Milford took Dixon in his pinnace along the coast to view the Americans’ camps, their burgeoning engineering works and their

ships in the harbour. From Milne Bay on the 6th Dixon was flown back to Port Moresby where Herring explained on his maps the recent and ongoing battles.'' Herring wrote to his wife, ‘We were able to show Dicko so much

of what has been & is being done & I think he will take back to Washington a very lively picture & a great understanding of all that is going on. I managed to let him meet a host of Americans & he felt the good relations existing’.!2 Through the coming months, in speech after speech, Dixon would relate what he had learned to boost Australia’s image in America. He flew back to Australia the next day, 7 June, and out for the United States three days later in an American Liberator bomber which landed at its first stop, Plaia de Gaiai, on three engines. An oil cooler had to be procured, so the captain, another officer and Dixon flew down the coast in a light plane to find one. On their return something was amiss because Dixon was seen off on another Liberator, proceeding by Canton Island and Honolulu to San Francisco. From there he flew to New York, seeing Evatt on 13 June. Evatt boasted of having obtained 475 aircraft for Australia’s ‘73 squadrons plan’, but only ‘in the sense of an agreement to provide them by the end of 1944’, over a year and a half away. This was no coup for Evatt. The produc-

tion lines were pouring out planes so fast now that an agreement like that

was a coup for the Americans. The following day Dixon took the train to Baltimore, reading Walter Lippmann’s American Foreign Policy en route, and was driven via Gettysburg to Fayetteville in Pennsylvania where Alice and the children had put up at the Graeffenburg Inn pending the Evatts’ vacating the Legation. ‘Bet met me first then Anne Alice & boys. Bet was overcome’—moments before she had heard the sounds of a terrible automobile accident and feared the worst. They all returned to Washington on

the 16th.'> Dixon recounted his trip to a press conference on 17 June,'* to Halifax and Hull on the 18th, to Welles on the 21st, to Roosevelt on the 23rd. Over

lunch the President told him of the difficulties in the Burma campaign and

spoke of Mrs Roosevelt’s proposed visit to Australia. Dixon reported on New Guinea and current operations there. On the 24th he saw Hopkins and Acheson, on the 25th Dill and King, pressing on King the need for more sur-

face craft for the South-West Pacific Area. On the 28th Marshall briefed

him on Europe and the Pacific theatre.'5 Dean Acheson, meanwhile, was

becoming more concerned with postwar issues and began consulting Dixon

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on the United Nations Relief and Rehabilitation Administration (UNRRA),

which the State Department was establishing in concert with America’s allies, encouraging him to play a leading role within it. July and August were unremarkable, in fact it is a mark of his effectiveness that the rest of Dixon’s tenure in Washington, though crowded with work and meetings, and with keeping Canberra informed, has far less retro-

spective interest than his first year. The other Australian missions had

become responsible to him and he was identifying and resolving conflicts before they could cause trouble. Adequate supplies of most war materials

had become available and it was largely his co-ordination that ensured they

were shipped smoothly and efficiently. It is significant that Watt now thought Dixon far more at home in the job.'* Because Australia was no longer in peril

there was less interest in that country in Washington. Consequently Dixon had fewer and less interesting meetings with the President.

On 4 September he met with Churchill at the White House, in the Prime Minister’s bedroom of all places, where Churchill spoke of Evatt’s transparent manipulations to keep open the door to a National! Ministry in Australia, to be headed by himself presumably—was Curtin not concerned, he asked. Dixon replied that Curtin understood Evatt perfectly well, and

kept good control—Churchill should meet him. Dixon took the chance to

stress the importance of imperial relations and the need for Britain to give a

lead in the war against Japan,"’ dreading a future in which the British would

have a diminished presence east of Suez or, worse, would leave the Pacific

entirely to the Americans. General Blamey was in Washington around this time too and briefed Dixon on the latest operations in New Guinea around Lae and Salamaua. A few days later Dixon travelled to Ottawa to consult with the Australian Minister, Major-General Sir William Glasgow, and Canadian civil and military officials. Their External Affairs officers, he found, had the latest

cables on the Quebec declaration by Roosevelt and Churchill, unheard of at Dixon’s Legation. In Quebec plans had been laid for world security, to be discussed at Dumbarton Oaks—the postwar United Nations in embryo— and for a global financial system, to be configured at Bretton Woods. Dixon was in Ottawa to discuss with the Canadians Australia’s attitude to postwar Commonwealth

relations, international affairs, and America’s intentions,

which were developing a strong anti-colonialist cast, which Churchill, fiercely opposed.'*

Dixon, like

On 1 October, from a rostrum outside City Hall in New York, with Mayor Fiorello LaGuardia at his side, Dixon addressed Australian and New

Zealand troops returning home from the European theatre to fight the Japanese. They had just marched along Broadway, as earlier Anzacs had

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done in 1918 on their return from France. Dixon praised them for defend-

ing Europe when it had most need of them and for demonstrating ‘that we believe this World War to be one War wherever the battle happens to be at the moment’. One war, but two very different foes, for at Boston’s Copley

Plaza three days later he described the Japanese soldier as ‘a treacherous

enemy displaying a desire to kill and wound his adversary out of an inveterate hatred and mere instinct even when every military purpose had

ended. Oliver Cromwell once spoke of a state which you could neither have

peace with nor reason from. These are words which describe Japan and the Japanese’.!? The utterly alien. At the beginning of November he called on Andrei Gromyko, Litvinov’s replacement. Gromyko said that the Soviets were now certain of

Germany’s defeat despite the high morale of the German soldiers. He relayed the most recent news he had received out of Moscow and spoke admiringly

of Australia’s successes against the Japanese.” Since the great tank battles in the Kursk salient in July the Germans had been on the defensive everywhere in Russia, retreating from the Dnieper in October and now preparing to

abandon Kiev.

At the White House on 9 November Roosevelt presided over the signing of the UNRRA agreement, and as the order of signatories was alphabetical by country Dixon sat next to him, signing first for Australia. The opening plenary session of the new body, with forty-four nations represented and presided over by Dean Acheson, was held in Atlantic City over

the following days, Dixon being appointed one of the Vice-Chairmen of the Council,

and

later

Chairman

of the

Finance

Executive

Committee.

In

Dixon’s address of acknowledgement on accepting the Vice-Chairmanship he

pointed out that it would be some time before Australia could devote much

in the way of supplies to UNRRA, unlike countries uninvolved in the Pacific

conflict. Like most people, he thought the Japanese would fight on until

1946. He urged collaboration between UNRRA, the International Labour Office (ILO), and the Economic Organization of the League of Nations— representatives of these bodies should

be brought into UNRRA’s

delibera-

tions. It was also desirable, he added, that the new body take advantage of the experience of the League’s High Commission for Refugees. On the 12th

he broadcast over station WOR on UNRRA asa ‘great and inspiring exper-

iment ... capable of becoming the foundation for a new brotherhood of peoples’,

and

also

broadcast

shortwave

to

Australia

on

the

subject:

Australia had ‘already agreed to contribute some of her wheat for relief purposes. The task is a formidable one. Relief and rehabilitation are matters that must be planned at once. They cannot wait until the war is over. As

soon as any part of occupied Europe is liberated the work of relief must

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begin’?! On the 26th he lunched with the Russians (who were making difficulties in the committees) ‘but persisted in my refusal to drink Vodka’. The

two-week meeting wound up on 1 December with an excess of ‘ceremonial & congratulatory oratory’.”?

In New York on 10 December, in company with Nelson A. Rockefeller and a group of Nobel laureates, Dixon addressed the Nobel Anniversary

Dinner on ‘Australia in the World Tomorrow’, making clear his scepticism on plans for world security: ‘The international organization of peace will

doubtless include many well thought out measures to prevent aggression’,

he told them, ‘But you may be sure that in moulding her economy in the

years that follow, Australia will not readily leave out of account the possi-

bility of history repeating itself’. Two months later, in New Orleans, he hoped for one generation of peace with Japan.” Early in 1944 Evatt persuaded New Zealand to join Australia called ‘ANZAC’ pact for a regional commission covering the South In fact the surprise agreement was inconsequential but it was taken

he said

in a soPacific. by the

Americans as a deliberate slighting of the United States—as Evatt’s unsubtle

response to Australia and New Zealand not having been consulted prior to

the meetings of the Great Powers at Casablanca, Ottawa and Tehran. More

positively, it was also an assertion of Australian and New Zealand interest

in the Pacific at a time when the United States had become the de facto

power there and was planning to dominate the postwar Pacific air routes. In

Washington Dixon found it impossible to get proper information on the agreement, about which he was being pressed with questions. He was preparing to cable Curtin requesting to be relieved of his post when Australia’s reply to a memo from Cordell Hull came to hand on 26 February,

giving the requested details. Frankfurter told Dixon he deplored the agree-

ment, which probably implied that his close friends Roosevelt and Acheson equally deplored it. Two weeks later Halifax asked to see any papers on the agreement, about which he too was in the dark.” This is a clear example of Evatt’s deliberate attempts to undermine Dixon by withholding information. It was in this atmosphere that Dixon was now busy making travel arrangements for Curtin’s forthcoming trip to Washington. The atmosphere in regard to Australia worsened as a result of attacks by United States senators on the recently announced decision to reduce the Australian army by 90000 men within twelve months—this at a time when

American casualties were mounting ever higher in the bloody island-hopping

campaigns to Australia’s north. Defensive statements had to be issued.’

Dixon flew out for the West Coast on 16 April to meet Curtin who, timid

about flying, had come by sea. From San Francisco on the 19th the prime ministerial party travelled east by train. One of the group was Secretary of

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Defence Sir Frederick Shedden, and Dixon had discussions with him and Curtin en route. They finally reached Washington on the 23rd to be met by Cordell Hull, Lord Halifax and others. Mr and Mrs Curtin stayed at Blair House but spent time with the Dixons at the Legation and seeing Arlington,

Mt Vernon and other sights. On the 24th Dixon took Curtin to see James

Byrnes, Director of the Office of War Mobilization, and Admiral King, thence

to a press conference, and next to see Cordell Hull. Curtin saw the President on the 2Sth; there was a dinner at the White House with Mrs Roosevelt that night in his honour, the Curtins staying as her guests overnight. When they returned to Blair House the next morning at 9.45, Curtin announced that he

had bad news. His blood pressure was high and he had just felt a sudden

pain in the back. Thereupon he cancelled his appointments with Secretary of the Navy Knox and Secretary for War Stimson and, shortly afterwards, his appointments with General Marshall and Leo Crowley, Director of the Office of Foreign Economic Administration, as well as his lunch with Halifax, and retired to bed.” He had had an embarrassing time with both Hull and

Roosevelt who had complained about Evatt’s unfriendly actions and the

surprise agreement with New Zealand. Roosevelt had effectively said ‘Let’s

just forget it’, which only made it more embarrassing. The Prime Minister

and his party, minus Mrs Curtin who remained in Washington, flew out of

Baltimore early on the 28th—by flying boat, perhaps a half-way concession to Curtin’s fear of flying—en route to Britain.

‘Stabber Jack’ Beasley, formerly Minister for Shipping and longtime leader of Langite Labor in the federal Parliament, where he had brought down the Scullin Labor Government in 1931, was in America around this time heading Australia’s delegation to the twenty-sixth session of the International Labour Conference in Philadelphia, and Dixon arranged for him to

see the President at the beginning of June. This was five days before D-Day

in Europe, the President speaking of the coming invasion as a ‘great experi-

ment’, and questioning Beasley on New Caledonia in relation to the recent ‘ANZAC’ agreement, which some saw as nothing but a cynical ploy by the Parties to grab other countries’ colonies.?” Curtin returned from Britain on 2 June and Dixon arranged for him to see the Chiefs of Staff, Halifax

and others. On 5 June, Dixon had a long talk with the Prime Minister about want-

ing to return to judicial work. He said he felt frustrated, not detailing precisely why in his diary entry that night. But the main reason was Evatt’s

continued

subversion

of

his work,

reflected

in ongoing

troubles

with

Macgregor.”® ‘Stabber Jack’ was evidently there to sort out some of these

problems—on

leaving, he told Dixon: ‘Don’t worry about the little feller

[Evatt]. Leave him to me’,?? Curtin agreed to appoint a successor ‘as soon as

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possible’ and certainly by early August. Later that day Dixon accompanied him when he saw the President in a meeting lasting over an hour. The

President would have been somewhat preoccupied given that the armada

was due to hit the Normandy beaches within hours. On that subject, however, he said nothing, though the war was discussed in some detail.*° The subsequent two months were relatively routine. Dixon met Gen-

eral Charles De Gaulle at the latter’s reception on 8 July: ‘He spoke to me

of his pleasure in seeing M of A/ia & I effect in Pacific’. ‘M’ was probably the Murdoch for whom Dixon had arranged in June. Canberra was kept informed of

thanked him for resistance & its Australian press baron Sir Keith meetings with Acheson and others the Legation’s view of the Bretton

Woods conference which Brigden attended along with Australian Treasury officials. It was also kept posted on a range of views, garnered from am-

bassadors and officials, about the meetings at Dumbarton Oaks to frame the new United Nations Organization. Dixon made fewer trips outside Washington through these months, though on 14 August there was a parade of 200 AIF along Broadway when he again stood beside Mayor LaGuardia and addressed the troops.! He and the family did not leave for home until mid-September. On the

7th he saw Dean Acheson and Cordell Hull. ‘The first expressed his regret

& spoke warmly. Hull ditto but at length & adding it was exceptional for him to do so.’? Alan Watt mentions a farewell dinner for Dixon given by Acheson, not noted by Dixon in his diary, ‘during which he described the departing Australian Minister as a person who, though a foreigner, would “adorn” the Bench of the Supreme Court of the United States if it were possible to appoint him to it. He added that Dixon would be greatly missed in Washington, where he had made himself “beloved” ’.*? On 8 and 13 Sep-

tember Dixon met at the British Embassy with Sir Alexander Cadogan,

British Under Secretary of State, who discussed the difficulties with the Russians at Dumbarton Oaks over the question of their veto power in future international disputes to which they were a party, something Dixon also discussed with Lord Halifax on the 18th. On the evening of the 13th he gave a dinner for Essington Lewis where guests included Lord Halifax and

Governor Lehman. He lunched with Frankfurter at his house on the 15th,

and in the afternoon Sir Girja Bajpai called, putting his solution for India.** Frankfurter came to lunch on the 17th. Over the previous months Dixon had frequently seen Walter Lippmann with whom he got on well—he could hardly have befriended a better or more influential journalist and commen-

tator. Their last meeting was on 18 September at the Legation when they discussed Russia, the future of the British Empire and the United Kingdom’s

economic problems. Dixon saw Admiral King on the 20th, ‘who spoke of

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Anzacs & was nice in his farewells’. On the 21st he lunched alone with General Marshall who discussed the European situation and the Soviet Union, Dumbarton Oaks, the Japanese position in the Pacific and the future of the war there, Evatt and the past, and Dixon himself, no doubt in com-

plimentary vein, for he subsequently spoke admiringly of him to There were several farewell dinners and a final meeting with the at the White House on the 23rd, but the most interesting of these was by Harry Hopkins, also at the White House, on the 25th, when

others.’ President farewells Hopkins

spoke of Australia now being out of the fighting that was being reported,

and (in Dixon’s words) ‘felt it was very unfortunate for our future in USA. Mentioned the ANZAC agreement’. That night at Washington’s Union Station, with a mountain of luggage in tow, the Dixons were farewelled by Lord Halifax, Sir Ronald Campbell the British Minister in Washington, David Bowes-Lyon and others from the British Embassy and the Australian Legation.** In San Francisco Dixon learned that his replacement was to be

Sir Frederic Eggleston, previously Minister to China.°” They sailed home

through Tahiti, and on the final leg Dixon

read

through John Read’s Ten Days that Shook the World, the famous first-hand account of Russia’s October Revolution—‘a poorly presented narrative by a man who would have been a valuable witness if he had never been a journalist’.* On the Mariposa in 1939, nearing Sydney, he had listened to the news of the outbreak of war. Now the ship’s radio was broadcasting running accounts of the last great sea battle of the twentieth century, at Leyte Gulf in the Philippines. On 27 October the family rose from their beds at 4.15 a.m. to see the lights of Watson’s Bay as the ship steamed into Sydney

Harbour. There at the wharf to greet them, along with the press, were the

Director of Shipping Sir Thomas Gordon, Percy Spender, an Opposition member of the War Advisory Council, and, taking front position, Evatt as

Minister for External Affairs. Dixon handed the steward and stewardess

$40 (American) each, then allowed Evatt to take them to 52 Macleay Street

and later out to lunch with his wife. To a casual observer they might have

seemed the best of friends.

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DIXON RETURNED TO an Australia that had half a million men mobilised. It was a more regimented society than the one he had left for Washington, but it was late 1944, victory was just a matter of time and the Curtin Government was already implementing its vision of postwar Australia. Wartime regulations and rationing would continue well past the end of the

war. These were years of tight monetary control, economic stagnation,

social division and, in industry after industry, ‘rolling strikes’ organised by communist-controlled unions including maritime workers and coalminers. The Dixons were welcomed home at a lunch at Government House in Sydney given by Lord and Lady Wakehurst, and in Victoria there were other

lunches in their honour given by Sir Keith and Lady (Elisabeth) Murdoch and by Robert and Pattie Menzies. It is interesting to note how Dixon’s social

connections ramify at this time. Murdoch, who had newspaper interests in Melbourne, Brisbane and Adelaide, was President of the Victorian section of the Australian-American

Co-operation

Movement,

one reason

for his

interest in Dixon, though the two had socialised before in Melbourne and in Washington. Murdoch also gave a dinner in Dixon’s honour at the Melbourne Club a few days later, the guests including Major-General Sir Winston Dugan (Governor of Victoria and Acting Governor-General), LieutenantGeneral Sir Edmund Herring (who had become Chief Justice of Victoria),

Robert Menzies (Leader of the federal Opposition and of the new Liberal

Party), Admiral Sir Guy Royle (Chief of the Naval Staff), Major-General George Vasey, businessman Russell Grimwade, Mr Justice Charles Lowe of the Supreme Court, and Sir John Latham. Grimwade had an interest in the 176

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administration of the National Gallery of Victoria’s rich Felton Bequest, named after his father’s business partner, Alfred Felton. Murdoch was President of the Trustees of the National Gallery and it was through Murdoch’s friend Grimwade that Dixon was invited onto the Felton Bequest Committee a few weeks later, though his knowledge of art at this stage was relatively slight.’ Dixon resumed sitting on the High Court on 14 November. In early December Franklin and Ted were rejected as medically unfit for military jobs (no doubt they had felt that now they were home they should do something to help the war effort). Franklin enrolled for law at the university and

family life resumed its old patterns at ‘Yallambee’ through a quiet summer.

As Keith Aickin had taken a job as legal adviser to the European Regional Branch of UNRRA,

Dixon took Alan Brooksbank back as associate for the

time being. In January 1945 Dixon accepted the presidency of the Australian Club.? He was the second member of the High Court to be elected President (Latham had been the first), and held the position for five consecu-

tive years, though as a teetotaller he avoided the bar. At one dinner party during his presidency a woman enthused about how splendid it must be to dispense justice. Dixon replied, in a tone that could only be his (and confirms the anecdote): ‘I do not have anything to do with justice. I sit on a court of appeal, where none of the facts are known. One third of the facts are excluded by normal frailty and memory; one third by the negligence of the profession; and the remaining third by the archaic laws of evidence’. The woman's face fell—flippancy was not what she had expected from someone of this eminence.’ Menzies visited ‘Yallambee’ for lunch on 28 January and incorrectly

predicted certain defeat for Labor at the next federal elections. The Dixons

told him of Casey’s intention to ‘rehabilitate’ himself in Australia, suggesting the possibility of rivalry, but Menzies said he had already ‘scented’ that.

Dixon’s friendship with both men put him in a delicate position. Casey

would later tell him the reasons (historically interesting) for his dislike of Menzies.* One wonders whether Dixon mentioned his discussion with Menzies in a letter he sent off two days later to his ex-Office of War Information friend Archibald MacLeish, the American poet. Dixon was writing occasionally to Dean Acheson too, but surviving letters of his in the Acheson Papers at Yale are from later dates, and Dixon did not regularly keep copies

of letters sent.

The State Department happened to be the subject of a talk he was preparing (delivered 6 February) for the Institute of International Affairs,

and Washington was on his mind again on 3 February when he lunched with Daryl Lindsay, the Director of the National Gallery of Victoria. Lindsay

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was off to the United States and Dixon suggested he choose a few good Australian pictures to hang on the Legation’s walls. Lindsay dismissed the quality of the local product: ‘we had very few Australian pictures he would like to submit for critical judgment of those in England or US even’.* This was an uneventful year for Dixon personally but it marks the start of a five-year period during which key legislation, foreshadowing socialised health care, control of airlines and nationalisation of private banks, would

be successfully contested in the High Court and the Privy Council, making this an interesting period in Australia’s constitutional! history. The effectiveness of the Court’s resistance to such measures elicits a tone of asperity from Geoffrey Sawer, not untinged with partisanship, in his description of the Court’s actions during 1946-49: ‘a period of intense judicial activity, during which government policy was frustrated by judge-made doctrine rather than by clear constitutional restrictions to an extent not equalled since the Deakin period’.¢ An early instance, no doubt, is Gratwick v Johnson, in which the Court

decided for a woman charged with travelling interstate without a permit. She had supposedly offended against the National Security (Land Transport) Regulations, which gave the director of transport the power to refuse her a permit, notwithstanding her constitutional right to free interstate intercourse —she had been to see her fiancé. To its credit the Court unanimously threw the regulation out as ultra vires (beyond legal power).’ The Court was sitting in Sydney on 15 August when Japan’s acceptance of the surrender terms was announced. Outside Dixon noticed ‘Much revelry in Kings Cross & Sydney but orderly, the pubs not having opened’, though next day ‘The revelry became less orderly after the opening of the pubs in the afternoon. Many drunken girls in the evening’. Caught up in the

spirit of things, Latham decided to do his own bit of peacemaking. He waited on Starke & sd that as the war had ended & a new period was opening wd not Starke end the unhappy state that existed between them. Starke said he saw no reason to do so. L. spoke of his unhappiness & the unhappiness he caused others. He replied he was not unhappy. ‘He did not want L’s interference & wanted ‘to have nothing to do with any of you’.®

Starke’s contempt for the niceties could include disregard for judicial propriety. In Melbourne that September Rich, Starke and Dixon heard an

application by the Medical Board for special leave to appeal from a decision

by Mr Justice Lowe who had reversed a ruling of the Board removing a medical practitioner from the register because of what Dixon described as

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‘a barbarous & ignorant tonsillectomy. I felt dubious but concurred with

Starke in the end who was strong in refusing. Rich agreed. Subsequently I

learned at the Club that S and Lowe had discussed the mre fully. I wonder if we were right’.? As entries in the diaries attest, Dixon would never discuss a case with a judge who had heard or was hearing it if it might conceivably

come before the High Court.

The First Pharmaceutical Benefits Case, of high constitutional importance, came before the Court in October.'® In this, the Victorian AttorneyGeneral supported a challenge by medical practitioners to the Pharmaceutical Benefits

Act

1944

(first stage

of an

intended

national

health

scheme),

providing for the supply by pharmacists of approved prescription drugs free of charge. The government, not the client, would pay the pharmacist who would, they argued, effectively be conscripted into the public service. Doctors, in their prescribing of drugs, would also be controlled and monitored. The bases of the challenge were two. First, it was argued that in requiring doctors and pharmacists to proceed in specified ways (using standard prescription forms, providing only government-approved medicines and so forth), the legislation came under no constitutional head of power. The Commonwealth, however, argued that the purposes of the Act were incidental to its being an appropriation Act under section 81, which allowed

the appropriation of revenues ‘for the purposes of the Commonwealth’.

Secondly, it was argued on behalf of the plaintiffs that in any case the Commonwealth’s powers of appropriation were restricted to the fields of its legislative competence as specified elsewhere in the Constitution. This was

a narrow interpretation of a previously untested spending power federal

governments had assumed to be constitutionally unlimited. The issue was not resolved by the Court as it ruled the legislation invalid on the first ground, but it was addressed in the judgments of Starke, Dixon and Williams, who indicated a narrow interpretation of the spending power. This set as many alarm bells ringing in Canberra as did the rejection of the Act itself, as it implicitly challenged the validity of any projected social security legislation. The only social security power specified in the Constitution concerned old-age and invalid pensions—section 51 (xxiii). Only McTiernan found the legislation valid in a judgment Dixon thought ‘bad as well as obviously wrong’.'' The rest of the Court characterised the Act as only incidentally for the appropriation of money and in essence for the regulation and control of doctors, pharmacists and pharmaceutical products—and thus ultra vires. As Dixon saw it, the Act contained

‘a general legislative plan covering much more than the spending of money and involving, moreover, control and regulation by law operating directly

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upon the individual’. Besides, ‘under the Pharmaceutical Benefits Act appropriation of money is the consequence of the plan; the plan is not consequential upon or incidental to the appropriation of money’. On the appropriation power, Dixon, while judging it irrelevant to the case and so not committing himself to a position, indicated the grounds for interpre-

tation in the future: ‘the basal consideration would be found in the distribution of powers and functions between the Commonwealth and the States’. Health care, of course, was constitutionally the preserve of the States.

One result was the social service referendum of 1946, creating section

51 (xxiiiA) of the Constitution permitting legislation to provide ‘maternity allowances, widows’ pensions, child endowment, unemployment, pharma-

ceutical, sickness and hospital benefits, medical and dental services (but not

so as to authorize any form of civil conscription), benefits to students and family allowances’. The parenthetical clause, securing the autonomy of

doctors and pharmacists, was added at Menzies’s suggestion and resulted in the Government losing the Second Pharmaceutical Benefits Case in 1949.'3 The First Pharmaceutical Benefits Case checked a government used to untrammeled wartime powers and restored a balance. As Brian Galligan, one

historian of the Court, puts it, ‘Having sanctioned the federal government’s

usurpation of the revenue field in the Uniform Tax case, the Court had now restricted the scope of its power to appropriate money for spending’.'* But at the time, the newspapers ignorantly reported the decision as if the Court had merely given the Victorian Attorney-General leave to proceed—‘Almost

incredible’.'s

Also going against the Government at this time, at least in part, the Airline Case was a challenge by privately owned airlines to the Australian

National Airlines Act 1945.'° The Court found that the Government could

set up its own airline (Trans-Australia Airlines) but could not use its discre-

tionary power over the granting of licences to drive private airlines out of business. The ruling reinforced Dixon’s view of section 92 as a guarantee of the individual’s liberty of interstate commerce and movement, as opposed to

the old Evatt view that government could ‘canalise’ interstate trade and

commerce provided the overall flow of goods was not restricted.'”

Dixon’s absolute command of the law must have made Franklin’s lack of distinction all the more difficult for both of them. At the end of 1945

Franklin passed torts and criminal law but failed contract and constitutional law. In the New Year his father secured him a clerkship at the law firm of Whiting & Byrne to parallel his further studies at the university, but it is not clear whether he sat any examinations at the end of 1946. After a string of failures in 1947 and 1948 he would finally pass contract law by supplementary examination in early 1948 and constitutional law, also by

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supplementary examination, in early 1949, during which year he would

repeat property law and mercantile law, both of which he would fail at the

end of 1949. He would not finally give up on becoming a lawyer until early 1953 after yet more failures.'® Dixon took it stoically, talking to the boy’s tutors and gathering the necessary medical evidence to gain him special consideration and supplementary examinations. One of Franklin’s problems, Dixon was told by a tutor, was that ‘he did not grasp or remember the analytical side’ and was ‘incapable apparently of seizing the significance of a case or principle: interested in the background or “story”’.!? Ted, more headstrong and independent, never showed interest in attending university, finding work with the Melbourne Steamship Company. Betty and Anne were still at school in the mid-1940s. In April 1946 Sir William Webb, formerly Chief Justice of Queensland, came onto the Court as its seventh member (an appointment engineered by Evatt), but soon left for Tokyo where in 1946-47 he was Chairman of the

War Crimes Tribunal.?° Dixon was elected President of the English Speaking Union in July and would hold the position until 1961. Along with the Royal Empire Society, of which his wife was Vice-President and on whose Council Dixon sat, it promoted Anglo-Australian unity. He was also playing an active part on the

Felton Committee, which was purchasing major art works through these

years on the advice of the outstanding British art historian Sir Kenneth Clark.

An example

from

1946:

‘we decided to pchse

(1) Paul Veronese

Rewards of Philosophy £12 000 (2) J. M. W. Turner’s Red Rigi (formerly in Ruskins possn) £2000’. Dixon was not silenced by his lack of expertise: ‘to the meeting of the Felton Committee & of the Gallery Trustees where we

agreed to buy Lord Radnors Poussin Moses crossing the Red Sea for £74000 & an escritoire Louis seize for £3000. I opposed the latter’. As for modernist art it was ‘dreadful or beyond me’.! Significantly, his closest friend in this circle apart from Daryl! Lindsay was Joseph Burke, Professor

of Fine Arts, a classicist whose field was the English eighteenth century. Life on the bench was no more rewarding than it had been in the 1930s. He sent off a letter to his friend Sir Girga Bajpai:

Little to write about ... My days and nights are spent in writing judgments which few read, in listening to arguments confused by interruptions from the bench and in attending dull and pointless social gatherings. Some variety of interest has perhaps been added by my submitting to becoming president of this or that committee. Of these the most exasperating is one administrating a huge bequest for the purchase of works of

art for the local national gallery.

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At over sixty, however, he could hardly contemplate a return to the bar, which in any case had changed to his disliking: ‘Bar Dinner to Fullagar

Eager Read Mitchell Gamble & Dethridge all of whom spoke badly. Mr

Junior Murray spoke well. Jacobs pathetically and B B Murphy poisonously gave bad mimicry & T. K. Doyle spoke vilely. No place for me among the Bar obviously’.?? He was naturally interested in the quality of teaching at the Melbourne law school and in December 1946 was consulted by Vice-Chancellor John Medley over the appointment of a new professor of public law. The top candidates were Zelman Cowen (a Victorian and at that time Fellow of Oriel College, Oxford) and the German-born, English-trained Wolfgang Friedmann, who was selected. Friedmann had been Reader in Jurisprudence at London University and worked for British intelligence in the war. Dixon and Lowe distrusted his ‘background’ but for legal, not political reasons.

After reading his Legal Theory and getting to know him Dixon told Medley

in February 1947

that he was attractive but I thought it bold on the part of the committee to recommend him because so German, so continental in his learning and so little real knowledge of English law. Nevertheless | thought the experiment might turn out well if he abstained from politics and kept to law; that his leftness was probably not pro-Russian.?*

Dixon seldom allowed politics to sway his estimate of a man’s professional quality provided ideology remained a subsidiary interest. When former Labor candidate J. V. Barry was appointed to the Victorian Supreme Court in early 1947 Dixon congratulated him, noting privately, ‘there is no reason why he should not make a good judge, though his delight in heretical opinions may mean imperfect sympathies’.”¢ But then, Took Barry to lunch at Menzies. He seemed very political, spoke of politicians, with the result that I attacked them as corrupt & sd that their enmity to judges was due to their knowledge that they shd receive sentences: He told me that E [Evatt] had procured [William B.] Simpsons appointment to the S.C of the ACT [because] as Director of Security he knew that E had ordered the release of Catholic enemies of a dangerous character & his mouth had to be closed. Barry spoke of E’s double crossing everybody and of Chif’s obstinacy over wage pegging. He suggested a split with E going over. I felt that Barry had little interest in his judicial future & indeed he regarded the work ‘ideologically’.””

Dixon had the utmost contempt for crooked politicians. Jack Lang's Labor machine in New South Wales had been notoriously corrupt, and the

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recently nominated Governor-General, William McKell, whom the King was taking his time over appointing, had been Lang’s Treasurer and Minister for

Justice. The nation had been shocked by the announcement. What could

account for it? The Melbourne Sun hypothesised (incorrectly) that the post had at first been offered to Dixon who had declined,?* but it seemed McKell really was the Government’s preferred man. The Melbourne Club automatically granted honorary membership to Governors and Governors-General,

and Latham was at this time its President. Horrified at the possibility of some day having to shake hands with McKell, Dixon questioned Latham about the alteration of Melb. Club rules with reference to the GG. He sd that there was to be not [sic] change. I expressed myself very strongly &

said that I could not come into a club & meet McKell: that it was not a political matter as he alleged but a moral question: that charges of corruption had been made in the evg Herald as well as other journals & that it was not right to countenance such a man or expose people to the risk of meeting him. He sd a small cttee had decided the rule ought not to be altered. I sd they were tragically wrong.??

The only politicians he respected were men of probity like Curtin, Casey and Menzies (he had no direct knowledge of Prime Minister Ben Chifley), and with Menzies it was their common past and mutual admiration that bound them so closely. At an Australian Club dinner in Menzies’ honour in February 1947 Dixon spoke of him in the highest terms.°° Menzies could relax with him and be totally frank, as he was when they dined together in late January 1947, several months after the Liberal Party had lost the 1946 elections: About himself he said that he knew that he was the subject of dislike & hostility throughout the community & thought perhaps his party cd not win under his leadership: he disliked political atmosphere & surroundings: he wd be happy at the bar & (in answer to my direct question) felt loss of limelight a mre of indifference. He agreed that his party might become an irrelevancy because the conflict might become one betw communism & traditional labour. He sd Chifley was decent and not stupid but had no ideas outside currency stability & improved conditions of employt. All else (foreign affairs, education, imperial connexion &c) he

called high falutin. Parlt was a thing of the past as a force or live institution Stupidity the rule among the labour politicians—products of the monastic life of trades hall officialdom.?!

Menzies’ suggestion of the nation’s future politics being fought out between

communism and traditional Labor is most interesting. The Communist Party

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vote was minute though they were influential in key unions. However, should the Labor Party split then it seemed possible that the radical left might achieve a position of dominance. Dixon certainly took the possibility seriously, telling his correspondent, Sir Girja Bajpai, a few months later that

‘Labour will rule the country for some time to come and when it is displaced the swing may quite as well be to the left as to the right’.>? Bajpai had just accepted Nehru’s offer to make him second-in-command at the new Indian

Ministry of External Affairs and would soon succeed to the top position there, as well as acting as a general policy adviser to Nehru.

Dixon’s Washington friends kept him informed of news there. Acheson

had recently left the State Department, telling Dixon in July 1947,

I think of you and talk of you so often that it was no coincidence that I was pumping Brigden for news of you on the day your letter reached me. He is going off laden with messages for you ... Archie MacLeish is at Conway attempting to write verse. Alice and | are off at the end of this month to fish in the Canadian Rockies .. . I know that you often had misgivings about your Washington adventure. I hope they are gone. You have left much of yourself here and taken much affection with you.**

There were further important constitutional cases in 1947. Dixon’s reading down of the Engineers’ Case (1920), particularly its assault on the old doctrine of the ‘implied immunities’ of Commonwealth and State governmental instrumentalities, has been considered in chapter 5. In West’s

Case (1937) he had reaffirmed reservations enunciated even earlier on this score: no Commonwealth legislation should affect ‘the exercise of a pre-

rogative of the Crown in right of the States’, and federal Parliament was not

authorised ‘to enact legislation discriminating against the States or their agencies’.35 Now, in Essendon Corporation v Criterion Theatres Ltd (1947), in a judgment heavy with American citations, he added a third reservation: that the States could not tax the Commonwealth in respect of the exercise

of its powers and functions.** This immunity he regarded as mutual, as one

sees in his judgment in the State Banking Case (1947). It is here one finds his most extended consideration of the implications of federalism. At issue in the State Banking Case was the Commonwealth’s attempt, by way of section 48 of the Banking Act 1945, to prevent the State governments and their agencies from using any but government trading

banks (in effect the Commonwealth Bank). Counsel performed woefully:

‘Mason for the C/w was almost incoherent & certainly argued nothing to the point. Barwick in reply was bad too. A disgraceful argument altogether of a fundamental case’.>” After studying cases on immunity of instrumentalities, spending an entire day on Canadian cases alone, Dixon wrote an

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almost citation-free judgment rejecting the legislation as discriminatory against the States, and took the opportunity to set out clearly his views on federalism: the federal power of taxation will not support a law which places a special burden upon the States. They cannot be singled out and taxed as States in respect of some exercise of their functions . . . The objection to the use of federal power to single out the States and place upon them special burdens does not spring from the nature of taxation ... The federal system itself is the foundation of the restraint upon the use of the power to control the States. The same constitutional objection applies to other powers, if under them the States are made the objects of special

burdens or disabilities . . . the foundation of the Constitution is the con-

ception of a central government and a number of State governments separately organized. The Constitution predicates their continued existence as independent entities. Among them it distributes powers of governing the country.

He went on to point out that ‘The position of the federal government is necessarily stronger than that of the States. The Commonwealth is a govern-

ment to which enumerated powers have been affirmatively granted. The

grant carries all that is proper for its full effectuation’. And he stressed that ‘the considerations upon which the States’ title to protection from Commonwealth control depends arise not from the character of the powers retained by the States [that is, the old reserve powers doctrine] but from their position as separate governments in the system exercising independent functions’. This was implicit in ‘the very frame of the Constitution’.** One may think

this is stating the obvious, but Dixon was stating it under Chifley’s govern-

ment, centralist by impulse, and he was the only one doing so with such clarity, though Starke, Rich and Williams also rested their judgments in the State Banking Case on assumptions of mutual governmental immunities, Rich’s judgment being prepared by Dixon’s friend, Mr Justice Clyne of the Federal Court of Bankruptcy.°?

Of course Dixon gave full weight to section 109: that ‘When a law of

a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid’, though even that he saw as subject to the implications resting in the federal frame of the compact. The Commonwealth was clearly advantaged by a

constitution that gave it a range of express powers. Partly for this reason, and because he believed that the States had very limited legislative power

over the Commonwealth,

in the Second

Uniform Tax Case (1957) and in

Commonwealth v Cigamatic Pty Ltd (1962) Dixon as Chief Justice, along

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with his Court, would rule that the Commonwealth had priority over States with regard to payment of debts in company bankruptcy proceedings.” The Government’s reaction to the Court’s decision in the State Banking Case came on 16 August when it announced it would nationalise the

banks, triggering the Bank Nationalisation Case, the longest, costliest, most

interesting case of the decade, with seventeen counsel plaintiffs and eleven for the Commonwealth, many of report takes up 400 pages in the Commonwealth Law been thoroughly if not always impartially examined by

it from Dixon’s perspective affords fresh insights.

appearing for them top silks. Reports and it others,*' but to

the Its has see

The case was to begin on 9 February 1948, in Melbourne. The Government tried to strengthen its hand in advance by endeavouring to get Webb back from Tokyo and, through Evatt as Attorney-General, making diplo-

matic overtures to the Chief Justice. Evatt met with Latham at 5 p.m. on 9 December, a meeting about which Latham chose to remain silent. Dixon learned of it independently, probably (like Rich) through his staff. Dis-

cussing the matter with Dixon on the 11th, Rich thought it unlike Evatt

to call without requesting to do so, wondering why the Chief Justice had concealed the visit (perhaps he suspected that Latham was prepared to be

influenced by Evatt). Dixon replied that concealment was instinctual with

Latham—it probably meant nothing. Next day he saw Latham on his return

from the cricket where he had met Evatt who had said ‘“all was set: affdts

filed”[.] L. did not mention having seen him before’. If it was not clear from this that the Government was fiddling with the Court, it became so on 29 January: Latham rang up at noon to say that through DEA [Department of External Affairs] he had received decyphered a telegram from Webb saying that the PM had requested Gen Macarthur to enable Webb to return to Australia for the hearing of the Banks case & that it would be necessary for him Webb to resign from the War Crimes Tribunal & that Bks [Banks] should have chance of objecting. I sd that he shd cable Webb

that he was writing & to do nothing pendg receipt of a Ire & should air mail (sat [Saturday] to avoid DEAs reading it) a Ire telling Webb he was

not required & ought not to resign. L. sd [Solicitor-General Kenneth] Bailey had made an appointment to see him & he wd tell me what passed. I sd he shd tell Bailey nothing except it was no business of the Govts. I also sd if Webb came & his presence affected the result I would grant a certificate [allowing appeal to the Privy Council] & state the reason[.] In the evg at the Club. L told me that he told B. the Govt had no right to deal with the constitution of the Court, plrly when a litigant.

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B said he came about the message which he had seen. L sd he wd communicate with Webb but not through DEA. & he ‘authorized’ B to show the copy of Webbs message to him to the P.M & AG. (though he knew they had seen them). B produced a cutting from the Bulletin (28/1/48

cabled additions) quoting from the Chicago Tribune about Webbs return in Novr. [1947, a brief trip home] 8& said the Govt cd not stand up to the consequences of Webbs resignation from the tribunal at this stage: that probably it would be decided on Friday that he should not be asked to do it: that the P.M had not sought to recall him but only to ask Gen Macarthur to facilitate his return shd Webb wish to come (a lie). L sd he

did not ask B to tell him the result but of course he wd be interested. Credat Judaeus Appella.*

Had Dixon not pressured Latham so strongly on the matter, the Govern-

ment might have gone ahead and engineered Webb’s early return to the

Court. The affair reflects discredit on the Government as a party in the case. The Government also tried to get Starke removed from the case. Starke rang Dixon on Sunday, 8 February, the day before the case began, saying that Bailey had called on him to object to his sitting, on the grounds that Starke’s wife owned some shares in one of the banks. Starke was known for his distrust of governments, even in wartime. With him off the bench, so the

Government obviously felt, bank nationalisation stood a better chance.

Starke told Bailey he had no beneficial interest whatsoever and the objec-

tion was ‘sinister’. Williams received a visit too—he was trustee of some shares for his sister, but then the Government decided not to object.“ These seem to have been psychological games on the Government’s part: two judges had connections with stockholders—let them vindicate their impartiality by their judgments. It was probably as unsubtle as that. As the case was being heard in Melbourne and promised to be a long one, Evatt, who was leading for the Commonwealth, put himself and his wife up at the Windsor, ordering the management to send up a grand piano for her to play.** Many thought Evatt, as an ex-member of the Court, should not be appearing before it. His advocacy, in Dixon’s view, was bad. This may have been partly because he was ill, partly because he was long out of practice, and partly because, although he was an able lawyer, he was a poor advocate. Garfield Barwick KC, in his biggest case to date, led for the Bank

of New South Wales in the first of the five actions brought by the private banks and the States of Victoria, South Australia and Western Australia.

The atmosphere was unfriendly, the tensions considerable not only between barristers but also on the bench—Starke and McTiernan, for instance, were

not talking to each other. Among Barwick’s supporting counsel was Richard

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Ashburner, among Evatt’s was P. D. Phillips KC. Phillips kept up a running commentary of dissent on Barwick’s six-day argument until finally Ashburner complained that owing to the noise Barwick was making addressing the Court he could not follow Phillips’ argument, a witticism that scored an entry in Dixon’s diary—it was his style of humour.** On 23 February Latham began to show his hand most unguardedly. That day Frank Kitto KC finished his ‘clear and acute’ argument for the

Bank of Australasia, Alan Taylor KC for the same plaintiff followed him and finished, and Edward Hudson KC began his argument for the State of Victoria. Dixon noted that

Latham seemed openly to espouse the Govt. & met every contention of the Bank with initial disfavour. It is not easy to understand; perhaps due to settling down upon his habitual bias for the Govt & antipathy to what he regards as the bias of Starke & Wms. Most of the points were disputable but he gave bad answers even to the good ones & before they

had been formulated.

At this time Alan Brooksbank was an applicant for the post of clerk to

the Conciliation Commissioners. Now, in the middle of the case, Evatt and

Bailey each spoke to Brooksbank directly, assuring him his application

would be successful. Brooksbank naturally told Dixon. ‘I sd nothing to Alan but I fear that the motive is to please me at this juncture, though it is true

Bailey sd some time ago Evatt supported the application when he saw the name’.‘”

Evatt began his argument ‘somewhat nervously’ on 26 February and through the next day was still talking in generalities—‘did not get to grips with the case’. On the twelfth day of his argument, 12 March, he ‘continued

all day & at length reached s 92 about wh he was simply incoherent’. As the

case proceeded Dixon wrote up a nightly summary of the argument, a most

unusual procedure for which the rest of the Court would be grateful.** On

or around 12 March Evatt attempted to ‘get to’ Dixon through Clyne, who visited ‘Yallambee’ on the 13th for the Royal Empire Society’s fete. Clyne

told Dixon

that at the solicitude of Bailey he had gone for a drink with the AG at the Windsor, Bailey being of the party. The A-G had said (1) the case was the most important ever before the Court legally as well as otherwise (2) he had put Starke right particularly over the interest question (3) Latham was a very difficult man (4) the Bench had been very decent to him (5) he liked old Rich (6) he wanted to get rid of two of the JJ. 8& how wd Clyne like to take the place of one (6) [sic] I was very subtle or

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had a subtle mind & had not shewn my hand (7) Barwick was a young upstart who had not inquired after the AGs health, though the AG was manifestly ill (8) 1 looked very ill at times. Clynes view was that the object was to discover my position & prepare Clyne should Rich seek

his assistance.”

The case continued through the rest of March and into April. Evatt concluded his argument on 19 March and on the 22nd the plaintiffs began

their reply. Barwick, Dixon noticed, got under Evatt’s skin through ridicule.

He was a ‘larrikin bringing the police court to the HCA’, Evatt complained to Clyne, but though Barwick’s psychological warfare was impressive, Dixon found his examination of American cases ineffective.5° Evatt persisted in using Bailey to exert influence on Dixon through Clyne but only won himself Dixon’s contempt: ‘Bailey visited Clyne with some more dope’,

Dixon recorded.*' Fagades eroded, counsel revealing their true natures.

P. D. Phillips, for example, was pushy and brash: at a cocktail party where Rich was talking to Robert Menzies, Phillips muscled in: ‘I want to talk to you’, he told the Opposition Leader. Rich turned his back and walked away, thinking that ‘Phillips was proceeding to make the best of both worlds, anticipating a change’.*? On 2 April the case was adjourned to Sydney for the final three days of argument, and then followed four months during which the Court digested the case and composed its several judgments. Latham called a conference for 17 June, the first for many years, at which Dixon—on top of things, having

written the abstract of the arguments—thought neither McTiernan nor Rich

showed any grasp of the case, Starke was stale on it, Williams was on the

ball, and Latham was vague and had nothing to contribute. Judgment was

given on 11 August. Rich, Starke, Dixon and Williams

held much

of the

Banking Act 1947 invalid, Latham and McTiernan held most of it valid. Among

the various reasons for finding invalidity was that the proposed

acquisition of the banks infringed the ‘just terms’ requirement of section

51 (xxxi), that a proposed Court of Claims to dispense compensation was to be given unappealable jurisdiction, thereby infringing upon the High Court’s original jurisdiction as defined by section 75 (iii) of the Constitution, and

that the prohibition of private banking infringed section 92 of the Constitu-

tion guaranteeing citizens freedom of interstate trade, an essential aspect of the banks’ business according to the majority.** The majority did not find that the Act infringed the constitutional integrity of the States, or that it violated the Financial Agreement between the Commonwealth and the States under section 105A, or that the Act fell under no head of power, though Rich and Williams held it unconstitutional on every count they chose to

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consider. The Court’s judgment represented a humiliating defeat for the Government, which subsequently appealed to the Privy Council and lost, the Board endorsing Dixon’s maximalist interpretation of section 92 as a guarantee of the individual citizen’s right to freedom of interstate trade. However, their reasons, which seemed to anticipate a socialist future, read

like a riddle, utterly confusing the High Court in regard to their interpretation of section 92.55 The rest of 1948 was personally uneventful for Dixon.*¢ In October the newspapers publicised an incident in the High Court during which Starke so insulted McTiernan as to cause him to walk out. Latham told Dixon he would insist on Starke publicly apologising to McTiernan, but Dixon told Latham ‘it had no useful purpose: obviously S would not do it & might do much worse. To prevent S going to Sydney & see that he took furlough next

year were the useful things and I wd assist’..” On 8 December he lunched David Owen, Assistant Secretary-General of the United Nations, then took

him to see Casey. Through the New Year he was reading J. Churton Collins’ Voltaire in England, Bertrand Russell’s Human Knowledge and Euripides’ Iphigenia in Tauris.

Visitors came and went. In January

1949 Sir Kenneth Clark told

Dixon it was preferable to have one or two men on the Felton Committee

who were not artists—‘in any case who was there?’ Small and unimportant

works should be bought as well as great pictures ‘to make a background’. Present-day works should be purchased on the understanding that much would prove wastage, but developments would give some of it a value for posterity. ‘He conceded we were in a decadence.’* American Ambassador Myron Cowen reported Evatt saying that ‘the Banking Legislation was unwise & he hoped to lose the appeal to the P.C.’-—‘Credat Judaeus Appella!’ Dixon added in his diary.5? Anthony Eden was in Melbourne in the last week of February and ‘said he remembered meeting me in March 1943 & the dinner by Cordell Hull at the Carlton. He spoke of Litvinoff as easier to deal with than other Russians: sd. Stalin was not so difficult: had humour & more understanding—was a Georgian. Churchill difficult about Palestine

but had mellowed’.® Also that month Dixon attended the funeral of an

acquaintance. He was amused by the Reverend Arrowsmith, who ‘extolled

death as an experience—one of the few apparently really believing in the life

everlasting & I gather a missionary to the heathen of Toorak’.*! Dixon was at the centre of a minor political controversy for the first time in his career following a luncheon of the English Speaking Union on 14 March 1949. The guest was Robert Menzies, and at the end of his introduction Dixon told a story. Some years ago, he said, a distinguished public

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official who mostly worked in Canberra (obviously a politician, though Dixon did not spell it out) had taken an interest in the formation of an orchestra in Canberra. On learning of this, another distinguished official inquired what instrument he played—did he play the fool, or was he one of those who blew his own trumpet? Whatever the audience might think of this twofold division of ‘talents’ Dixon felt sure they would not place Menzies in either category.” Press reports implied Dixon had claimed that every politician apart from Menzies belonged to one of the two categories. He was attacked by individual Labor MPs, though Chifley replied to an explanatory letter from Dixon, ‘you can rest assured I don’t accept press

reports as accurate’.©? The Court continued to dominate Dixon’s time. In February of 1949 the Caucus of the Federal Labor Party wanted the Government to appoint two or three new judges to the High Court. Evatt stopped the move after ascertaining from Latham that neither Rich nor Starke planned to retire soon. A Court of nine or ten would have been impossibly large—more like

a public meeting.“ Following a conference of the judges, in early June a

Court of six including Webb (who had returned from Tokyo) but not Starke produced a joint judgment in a group of three cases involving petrol rationing, women’s employment and seizure of unoccupied houses by protected persons, holding the relevant wartime defence power regulations void. ‘The air & press were full of consternation in the evening’,®* as if the war had not ended years ago. Later that year Dixon dissented in two cases involving members of the Communist Party charged with sedition under sections of the Crimes Act 1914. They had said that Australian workers should side with the Soviet Union in case of war. Dixon, taking a liberal view, thought one of the heads of sedition far too vague and wide. A few months earlier, when Mr Justice Lowe had reluctantly taken the Victorian Government’s Royal Commission on Communism, Dixon had

expressed his disapproval ‘very strongly’.®” Not nearly as strongly, though, as

the disapproval he expressed to Latham of the fact (as Dixon was convinced it was) that Mr Justice Clyne of the Federal Court of Bankruptcy had written Rich’s judgment in Isaacs v McKinnon, an appeal against a judgment by Clyne

himself. If true, it was scandalous.

On

18 November

Latham

told

Dixon that in the matter of this case he had been convinced by Rich (an unusual thing). Soon afterwards, as Dixon noted, ‘Rich produced a judgment

obviously written by Clyne. After Court I discussed it with Williams’. The next day Dixon saw Clyne on another matter but said nothing about Isaacs v McKinnon—what could he say with any niceness? He noted afterwards,

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‘I was not pleased with his action in asking Ted to second Mrs Strong’s application to the ESU or over Isaacs v McKinnon in which he had written Rich’s judgment & perhaps shewed this’. He saw Rich on another matter on

the 23rd but Rich was silent about the case. On the morning of the 25th

Dixon ‘spent the morning mostly in cfce over Isaacs v McKinnon. Before hand I told Latham that Clyne had promised me not to write Rich’s judgment but I felt sure had done so’. On 5 December ‘Latham rang & we had a serious argument abt Isaacs v McKinnon in wh. I sd that I was very dis-

turbed at R’s judgment being written by Clyne & its having changed his view. I asked for a reargument. We were cut off & he rang again protes-

tando’. Judgment was given on 21 December, Dixon dissenting from the Court’s dismissal of the appeal. Starke, (having waited, it was believed, until the leave the Court on 31 January 1950 to Rich would soon make the same decision, replaced by Frank Kitto.

meanwhile, had decided to retire Liberals won power), and would be replaced by Wilfred Fullagar. retiring in early May 1950 to be

In 1949 Dixon’s time in Washington was much in his thoughts. Early that year Dean Acheson had returned to Washington as Truman’s Secretary

of State. He wrote to Dixon in March: ‘I wish that some event would bring you and Lady Dixon back to Washington. You are very much missed’.°? Australia’s stocks in Acheson’s State Department were certainly no worse for Dixon’s belief in putting diplomacy on a personal basis (anathema to professional diplomats like Watt). Through the winter of 1949 he wrote

two papers on political affairs. One concerns the inter-relatedness of diplo-

macy and military preparedness, and how pressure of events rather than long-term policy shapes historical process. Anyone who imagines Dixon a conscript diplomat uninterested in such sophisticated questions should read it. The other is on Roosevelt as Dixon knew him.” International events were always followed closely by Dixon, and he made his own interpretations rather than relying on the newspapers. A good example of this occurs in

early 1950 when he records his ‘suspicion that Acheson had procured UK to recognize [the Chinese Communists]

so as to be in touch while USA

did not’.”! Social events at which Dixon presided in the latter part of 1949

included a lunch in September for Pastor Martin Niemoller like’, and in October a reception for Anthony Quayle and visiting with the Shakespeare Memorial Theatre Company Much Ado About Nothing on the 24th). On 10 December

‘whom I did not Diana Wynyard, (he saw them in Menzies’ Liberal

Party had a convincing win in the federal election. The Dixons dined that night at Professor Burke’s to meet Aeneas McDonnell, European Advisor to

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the Felton Committee since 1947. After returning home, they sat up until 1.30 a.m. listening to the results over the wireless.

Christmas and New Year were not cheerful. Ted had married in mid-

December but the match seemed unpromising, the couple radiating gloom on their visits to ‘Yallambee’ through January 1950.72 On 25 February 1950 Sir Frederick Shedden, Secretary of the Department of Defence and a friend of Dixon’s now for several years, visited ‘Yallambee’. They had their usual

discussion on foreign affairs, including Nehru’s attitude in regard to Russia at the recent Colombo Conference, and the risk of a fresh outbreak of fight-

ing between India and Pakistan over Kashmir,”} Pakistan having asserted its territorial claims there by a military incursion in 1948, resulting in the estab-

lishment in early 1949 of a ceasefire line under United Nations auspices.

This was a significant discussion in view of subsequent events, but there was

no suggestion then of Dixon becoming involved. India, elected to the Security Council in 1949, was balking at the idea of the Security Council appointing a mediator to solve the Kashmir dispute. India wanted a three-man mediation team: one person appointed by itself, one by Pakistan, one by the Security Council. Predictably, the Council would

not countenance this formula for failure. United Nations archives throw no

light on what feelers, if any, were put out at this early stage, but the Security Council had to find a mediator satisfactory to India in particular, Pakistan having accepted in principle the idea of a single mediator.” Dixon, it became apparent, had three qualifications in unique combination. He was judicious and diplomatic, as he was diplomat and judge, and in addition he was a friend of Sir Girja Bajpai, now Indian Secretary-General heading their Ministry of External Affairs. Bajpai may have suggested Dixon to the Americans, through the Indian Embassy in Washington via John D. Hickerson, who had been in charge of the State Department’s Australian desk during the war and was now Assistant Secretary of State in charge of the Bureau of United Nations Affairs. Hickerson knew Dixon well, and he was certainly

involved.’5 Secretary of State Dean Acheson knew of Dixon’s friendship with Bajpai. Pakistan, through its Minister for External Affairs, Sir Muhammad

Zafrulla Khan, knew of it too, but did not block the appointment.Ӣ

In any case the suggestion of Dixon as mediator came from Washington, via New York and London. On the evening of 24 March 1950 Dixon took a telephone call from John Burton, Secretary of the Department of

External Affairs, who said the question of mediation between India and

Pakistan had been raised in New York and London. The British had inquired whether Dixon would be available. Percy Spender, Burton’s Minister, had left for Manila and had asked him to inquire. In Dixon’s words,

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I said that there could only be one answer & that I would be available. I said that I understood the implications of what he said but if anything came of it would like more information. He said he would send it. He said that at present it was a question of my availability. I repeated that of course I would be. But I added that it would be necessary for the P.M. to deal with the judicial aspect.”

Two nights later Prime Minister Menzies rang from Canberra: cables had been exchanged on the matter. One side was agreeable, the other was being difficult on the very principle of United Nations mediation. Dixon’s name had been proposed from Washington. The British had said they were very happy at the proposal, and the Australian Government had reported

that Dixon was happy about it. Other names (not all Australian) were being bandied about, and he would let Dixon know as soon as there were any

developments. ‘He asked me about Bajpai & I told him.’ The unofficial

announcement came in early April, the Security Council formally appointing Dixon at its 471st meeting on 12 April by eight votes to none, India and Jugoslavia abstaining.”? The mediator’s brief had already been defined in a Security Council resolution of 14 March, neatly summarised in a press release of 12 April: (1) He is to assist in the preparation and to supervise the implementation of the program of demilitarization of Kashmir which the Governments of India and Pakistan are to prepare and execute within a period of five months from the date of the adoption of the Council resolution on the basis of the proposals submitted in December 1949 to both parties by Gen. A. G. L. McNaughton of Canada, who was President of the Security

Council at that time. (2) He is to place himself at the disposal of India and Pakistan and to

place before them or the Security Council any suggestions which, in his opinion, are likely ‘to contribute to the expeditious and enduring solution’ of the Kashmir dispute. (3) He is to exercise all the powers and responsibilities devolving upon the United Nations Commission for India and Pakistan. (4) He is to arrange, at the appropriate stage of the demilitarization of

Kashmir, for the assumption

by the Plebiscite Administrator—Fleet

Admiral Chester W. Nimitz—of the functions assigned to the Plebiscite Administrator under the agreement between India and Pakistan. (5) He is to report to the Security Council as he may consider neces-

sary, submitting his conclusions and any recommendations which he may desire to make.”

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Dixon’s authority was thus severely bounded and he could effect nothing (apart from his final report) without the co-operation and agreement of the parties. His salary (annual—he would have received a proportional amount) was fixed at US$20 000 gross ($13 500 net), plus a United Nations Representative Allowance of $8500, plus $20 per day while on duty.*! The last case of significance prior to his departure for New York was McCarter v Brodie, in which a carrier (Hughes and Vale) hauling beer from South Australia to New South Wales through Victoria was charged by the Victorian police for not obtaining a Victorian licence for that section of the trip.*2 Though the Privy Council in the Bank Nationalisation Case had (somewhat confusingly) endorsed Dixon’s view of section 92 on freedom of interstate commerce as applicable to individuals rather than to the overall

flow of trade regarded quantitatively, the Latham Court in McCarter fol-

lowed its old ‘pragmatic’ reading of section 92 as established in the Transport cases of the 1930s,® so once again Dixon found himself in dissent, only

Fullagar joining him. In conversation with Latham, Dixon noted, ‘I ex-

pressed myself strongly about the correctness of the view I had taken in the transport cases & suggested that I had been completely borne out, while Latham vindicated his view & denied that I had been upheld’. P. D. Phillips for the Commonwealth, which had leave to intervene, was arguing that American cases were irrelevant. Dixon thought he was misleading Webb and McTiernan by assertions that the pple [principle] in US was that the States could not ‘regulate’ commerce. I challenged him & he pinned himself unequivocally to the proposition that in US. a State ‘regulation’ of commerce that included interstate with domestic commerce was void. I said ‘Very well you are prepared to submit that?’ & He sd. Yes. In the street at 6 o’c he came up & referred to the mre tho’ I was talking to Webb & Greenwood, and sd he was concerned. I sd. ‘I thought you were misleading Webb J. & did not like it{’.] He disclaimed it & I said it was necessary to be care-

ful not to do so in such a matter. &c.**

Dixon’s relations with this leading Melbourne KC would not improve through the 1950s despite Phillips’ attempts to placate him. In early September 1949 Phillips had been divorced by his wife on grounds of adultery with his secretary at a hotel in England,** and Dixon had not liked how he had opened an argument, in a case a month later, ‘very full of assurance & truculence in spite of his divorce’.*” Dixon disapproved of those who broke the marriage vow, and in Australia at that time divorce was neither commonplace nor socially acceptable.

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Through April Dixon underwent inoculations against cholera and

typhoid, injections for haemorrhoids, and briefings on Kashmir, India and Pakistan. Robert Jackson, recently appointed Secretary of the Department of National Development on loan from His Majesty’s Government, was one who briefed him. Jackson had a distinguished military career and United Nations posts behind him, including running UNRRA’s operations in Europe, and he stressed ‘the need of being considered superior to Asst Secs.

& the prime importance of head of secretariat & adviser respectively’.

Major-General Desmond Harrison, formerly on Mountbatten’s staff in India, briefed him on Nehru and on Pakistan’s Prime Minister, Liaquat Ali Khan, gave him names, and warned him against too much British influence being suspected.®° The Security Council was anxious for Dixon to begin his task as soon as possible. He had decided that his tipstaff, Jesse Gregory, would accompany him and on 25 April, with Ivor Greenwood and Alice, they flew up to Sydney. Dixon and Gregory were booked to fly out the next day on a British Commonwealth Pacific Airlines DC6 on which Dixon had

been fortunate enough to secure a bunk. At the airport ‘Alice seemed to feel

the parting very much’, he noted in his diary.® After all, nobody expected this mission to take less than four months, and it might take six.

10 UNITED NATIONS MEDIATOR, KASHMIR 1950 DIXON FLEW TO the United States through Honolulu—‘a place I do not like. They are in the throes of an attempt to become a state and get incor-

porated into the Union’, he noted, adding ‘I hope Congress has more sense

than to permit it’.! James Plimsoll, an officer with the Australian Department of External Affairs, and attached to the United Nations, met him at San Francisco. They discussed the mission, flying together to New York on 28 April, a Friday, where they were welcomed at LaGuardia Airport by a United Nations official, representatives of India and Pakistan, and Australia’s Deputy Consul-General, a Major Watson, ‘smelling very strongly of drink & indeed almost drunk’. As Dixon soon learned, ‘the U.N.O. want

me to take over an existing staff 8& I believe it to be quite unsuitable’.? The United Nations was located at Lake Success and was closed on weekends

come crisis or catastrophe, so Dixon spent the Saturday with Plimsoll going over relevant papers. (‘At my request he had seen the Indians & Pakistanis & put off proposed dinners’.*) Sunday was spent with Sir Alexander Cadogan, the United Kingdom’s permanent representative on the Security Council, at

Cadogan’s house at Oyster Bay. ‘I sd I wanted a British expert on India; a

good British sec, an American soldier of distinction.’ Dixon’s discussions with the British and Americans were kept very discreet: he did not wish to be accused of being briefed by them, but he needed their views and the infor-

mation they could provide. On the Monday

at Lake Success he met Admiral Chester W. Nimitz,

the man who had welcomed him to Honolulu in May of 1942, and United Nations officials. Over a year earlier Nimitz had been appointed to conduct

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a plebiscite in Kashmir, collected a staff and made a thorough paper study of the situation, but Dixon noted that ‘For reasons which nobody has been able to explain satisfactorily to me, he never left Lake Success’.’ The United Nations, Dixon observed, was ‘full of visionaries, otherwise crackpots. There is a huge staff, all of whom pursue fruitless ends and many of whom pass idle lives’. So on the Wednesday he flew to Washington. At the Supreme Court, and later over dinner, he talked to Felix Frankfurter, who ‘said little

about his own Court, but the deterioration is manifest’.” To John D. Hickerson, Assistant Secretary of State in charge of the Bureau of United Nations Affairs, ‘I put the position of my mission. He went over it all & promised support & information’.’ Then on the Friday Dixon breakfasted with his friend Dean Acheson, now Secretary of State under Truman. Just the previous night Acheson had spoken with the Pakistani Prime Minister, Liaquat Ali Khan. Acheson was optimistic a compromise could be effected, though he had found Nehru ‘very emotional’ on the issue.” While in Washington Dixon also saw General George C. Marshall and inquired about possible military advisers. There was nothing in the way of standard procedures for him to follow because, as one historian of the conflict has pointed out, ‘Kashmir was one of the first disputes put to the United Nations after its creation at the end of World War II, and, as such, was seen

in many quarters as a crucial experiment in the possibility of settling quarrels between nations by international mediation’.'° Summing up his feelings about the mission at the end of that week, Dixon wrote to Prime Minister Menzies that The problem to which I am to address myself has become only too clear. It is simple in statement but perhaps impossible of solution. India is in possession of the greater part of Kashmir, the part which is the most populous, fertile and economically valuable. Her whole policy is to make sure that the de facto boundary formed by the ceasefire line becomes by lapse of time a de jure boundary. Nothing I or anybody else can do will induce her to move further to the east of that line, unless by doing so she can secure important advantages. Yet a compromise on a plebiscite must mean that she is required to retire to the east. The only advantage which on present showing she can secure consists in peaceful relations with Pakistan and the promise of a friend instead of an enemy on her flank. Such an advantage is nebulous, and possibly unreal.

Only strong economic and political incentives from the United States, the United Kingdom and the Commonwealth would influence India, he thought,

and he knew he would get little support from the United Kingdom, desper-

ate as it was to avoid offending India and precipitating her departure from

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the Commonwealth. He was already predicting (correctly) that ‘the real difficulties’ would not come from Liaquat Ali Khan." In visits to Lake Success the following week he spoke to Liaquat (‘affable and correct’) and a range of officials including General Andrew McNaughton,

Canada’s permanent delegate to the United Nations, who as President of the

Security Council the previous year had tabled his own proposals for a settlement to the Kashmir problem only to see them rejected by the parties. Dixon now put together a team, accepting the Norwegian Erik Colban as head of

secretariat, though he would play no part in the mediation, and the Canadian

Arthur Campbell, a Security Council Affairs officer, as chief assistant. Colban had been the personal representative of United Nations SecretaryGeneral Trygve Lie in handling the Kashmir dispute since 1948 and was foisted on Dixon. A young Frenchman, Sylvain Lourié, Colban’s assistant in his previous role, joined Campbell as Dixon’s second assistant. ‘Seeing America in peace-time’, Dixon wrote to Latham, ‘after growing familiar with it only in war-time is extremely interesting to me. Of course, I have only seen San Francisco, New York, and glimpses of Washington. None of the places have resumed the glories of 1939, but they are working up towards that’.! Not one to ignore the business of the High Court, even from afar, he found time before flying out for London on 21 May to write to the Attorney-General, Senator John Spicer, in praise of Frank Kitto, recently appointed to the High Court to fill the position vacated by Rich: He always argued a case beautifully and never betrayed ignorance of any legal doctrine with which I was acquainted. It can do no harm to any Court to be manned by people immersed in equitable doctrines. There is a great deal to be said for a view often expressed by Sir George Rich, that you cannot know equity without being a master of the common law, because equity is an appendix to the former.

To his friend Clyne he wrote on the same day, Neither the Indians nor the Pakistanis would like me to talk too intimately with the powers that be in the State Department or in the Foreign

Office. On the other hand, it would be very silly indeed not to know what policies Great Britain and the United States were prepared to adopt in the various contingencies that might arise. It has therefore been necessary for me to proceed with circumspection and discretion, relying greatly on the means of access to people and information which ] was fortunate enough to establish when I was last in the United States.

He was impressed by the quality of those Americans in the military and the State Department with whom he had been in contact—‘the energy and

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capacity of their best men is beyond praise’. That did not apply to the Supreme Court, not even to Frankfurter whom he found sadly declined as a

judge. He had spent the best part of a day with him in Washington, he told Clyne, and had come away thinking that

The Supreme Court is by no means good. Recent appointments have made it even more political than it was, and its legal equipment is low. Frankfurter himself seems to me to be more lonely, and his judgments show that he has allowed his tendency to reflective utterance, and to the use of aphorisms and smart sayings, to increase at the expense of his analytical capacity. I think it is less a sign of age than a desire to say something which will interest himself, knowing that it will scarcely be likely to interest his colleagues.

Then, with that wry detachment with which he could coolly examine not only others but himself, he added ‘There were examples in Australia of this, or at least there was one until I left’. Regarding Evatt, he told Clyne ‘I have heard a great deal about the doctum caput from a great variety of sources with anecdotes. He has an ever-widening circle of enemies’."* In London from 22 to 25 May Dixon talked to people at the Com-

monwealth Relations Office and visited the High Commissioners for India

and Pakistan. He also saw the Foreign Secretary, Ernest Bevin, and United Nations Secretary-General Trygve Lie. ‘Bevin was cordial’, Dixon noted in his diary, but ‘looked very ill’, and his mind wandered randomly from one topic to another. ‘I thought it somewhat pathetic.’ He flew east on the evening of 25 May in company with his small team, reaching Karachi at 2 a.m. on the 27th where he was greeted by a large body of press, Pakistani officials and a United Nations officer. After refuelling here they proceeded at once to Delhi where, after taking a bath, Dixon met with Indian President Rajendra Prasad and Sir Girja Bajpai, now Indian Secretary-General of External Affairs, then from 6 until 8 p.m. with the Prime Minister, Pandit Nehru. Like Dixon Nehru was a polished and cultivated man, but cooler and even more self-contained, a man of immense political will, conscious of his strong standing in India and among the leaders of what would soon be called the non-aligned nations. Nehru restricted

himself to a detailed chronological account of the Kashmir problem from India’s point of view, at the end of which, in Dixon’s words, I thanked him for the exact position and said . . . I had only one conviction about the matter, namely, that it was imperative in the interests of

the two countries and of the world that the Kashmir question should be solved; that the consequences of leaving it in its present position would

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be terrible. I did not pursue the question further and the conversation ended upon irrelevant topics, particularly the ancient literature and antiquities of India.'*

Dixon stayed at Government House and during the following two days had further discussions with Bajpai and Nehru." ‘The atmosphere just bakes you’, he complained to his sixteen-year-old daughter Anne. Nehru’s imminent departure for Indonesia meant ‘a delay in my attempt to produce a settlement of the Kashmir question. There is however an opportunity of spending more time in Kashmir & learning more about the matter’."* Before doing that, however, he went to Karachi for five days of preliminary discussions with Sir Muhammad Zafrulla Khan, Pakistan’s Minister for External Affairs, and the Minister for Kashmir Affairs, Nawab Gurmani?)— the Prime Minister was in Boston for a thyroid operation. During his periodic visits to Karachi Dixon stayed at Government House where he observed proceedings with a bemused eye. ‘Staying here’, he wrote to his daughter Anne on one occasion, is a Governor of East Bengal (part of Casey’s former domain). His name is Sir Feroze Noon. He is a Muslim naturally. He has a wife of the same race parked in the hills. But he is allowed four wives by his religion. He had a Viennese steno and she married him as his second wife & turned Muslim too. She is called Lady Noon and is regarded as the Governor's lady. She is staying in the house & at meals which we occasionally have with the Governor-General she is very much to the front. The GovernorGeneral’s wife is ‘in purdah’ and can’t be seen by strangers, so she never comes to meals. If she goes out she is covered with a mantle from head to foot & her eyes peer out of little holes. Are not human beings mad???

Dixon’s task was to investigate at first hand the situation in the disputed State of Jammu and Kashmir and determine, with the agreement of the

parties, the conditions under which a plebiscite might be taken throughout

the State, an agglomeration of territories with no geographic, demographic, economic or religious unity, previously and arbitrarily brought together under a maharajah. The most recent maharajah had signed an instrument of accession with India in 1947 but lost control over large stretches of the State, which was then invaded in the west and north-west by Muslim tribesmen backed by the Pakistan army. The exercise on which Dixon was embarked strongly reinforced his aversion to organised religion. As he put it succinctly in a letter to Anne Dixon, ‘Like many other troubles in the world religion is

at the bottom of the one I am to look after’. Whereas Islam was ‘a religion

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which seems to give a good deal of exercise in bobbing up & down and it certainly is not more absurd than the Roman Catholic religion’, in India ‘The great majority are Hindus . . . & what they believe in is more archaic’.?! He now began several weeks of intensive investigation of the situation throughout the State of Jammu and Kashmir, on both sides of the ceasefire line being supervised by the United Nations, in order to understand the disposition of forces and the form and extent of protection required for the

voters in the several regions to ensure the fairness of any plebiscite, taking

into account the varying factors of race, religion and topography across this divided territory of 4 million mainly Muslim people. The overall situation, he wrote to John Young, ‘is the result of many causes but the proximate cause lies in the haste of the British withdrawal [in 1947] and the insufficient

care & skill shown in providing for the disposal of the independent states’.

The State of Jammu and Kashmir, within its federal arrangement with

the rest of India, had its own Prime Minister, Sheikh Mohammad

Abdullah,

a personal friend of Nehru, though a Muslim. In the 1930s Sheikh Abdullah had fallen out with another Kashmiri leader, Ghulam Abbas, who, with Pakistan behind him, now headed the ‘Azad’ Kashmiris on Pakistan’s side of

the ceasefire line. Despite differences, both men believed that the people of Jammu and Kashmir should determine their own future, in Sheikh Abdullah’s view even if the result were to be partition. Dixon spoke with them in turn. Sheikh Abdullah thought independence for Kashmir should be an option in any plebiscite, in addition to the alternatives of its incorporation within Pakistan or India. The toughest question concerned the circumstances under

which any plebiscite would take place. Clearly, voting should not take place

under armed threat. However, Pakistan was unwilling to withdraw its own forces and disarm its client tribesmen unless India at the same time demilitarised its (larger) part of the State. For its part India was extremely reluctant, for reasons of national pride, to demilitarise a state within its national territory, insisting on Pakistan’s unilateral withdrawal as a preliminary to any plebiscite. Indian elections, due within twelve months, put pressure on Dixon to secure an early agreement lest Indian party politics in the lead-up

to those elections make compromise more difficult for Nehru. Yet Dixon

could hardly table proposals of his own until he had an authoritative conception of the multifaceted situation throughout the State, including its richest and most populous part, the Valley of Kashmir. Nehru’s absence abroad gave Dixon the time to do so in a thorough manner. He and his team repeatedly criss-crossed this remote Himalayan region by a combination of United Nations aircraft and jeeps, exploring even its least accessible reaches. Since the ceasefire line had been negotiated in January 1949, no one but United Nations personnel could pass from one

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side to the other without being shot at, and exchanges of fire were frequent. Dixon would travel up to the line in a white United Nations jeep flying its blue flag, accompanied by United Nations observers, mostly American, Canadian, Norwegian or Belgian officers sent to enforce the armistice. Signals would be sent across the line, then they would pass through the first military post, drive across no-man’s land and be received at the opposite post. Over most of the State, however, aircraft were the only means of travel. On 25 June Dixon wrote to Severin Woinarski from his base in Srinagar, in the Kashmir Valley and on the Indian side of the ceasefire line, about a recent flight, one of many, that had taken him through (rather than over) the Himalayas—quae loca lambit fabulosus Hydaspes.** We followed the Valley of the Indus, divagating into some tributaries and came down at places ... called Skardu and Gilgit. We flew within 100 miles of the border of the U.S.S.R. The pilot, who was English and had been educated, pointed out the exact hill which Alexander the Great had reached & captured. It would be considered a mountain where ordinary heights prevail. But here there are many over 25000 feet. It is identified as the furthest point reached by Alexander. I should say that life in the villages below is exactly what it was then. White men do not travel up the valley of the Indus except by air, although in the past it has been done. Now only a large party would be safe. When we came down at Skardu I was welcomed by a crowd of Muslims looking as fierce as their reputations & crying ‘Pakistan Zindabad’ meaning long live Pakistan .. . I have spent much time travelling about this State as well as in listening to the views of the principal parties. Of course it is obvious that only a man who has spent his life here should be intrusted with the task of unravelling the tangle into which they have got the question. Bitter hatred is often evident and no doubt is the ultimate cause of the failure of India and Pakistan to agree, but its existence is generally denied. I have never had a more complex or anxious problem and unfortunately it has to be dealt with in the most inappropriate and uncongenial conditions. The heat is terrific in Delhi & Karachi, where we must all meet & even here the climate is bad . . . | have a good Frenchman & a good Canadian on my staff but no other effective help & their knowledge of the subcontinent is recent and inadequate. I cannot decide anything. I must secure agreement in everything & the approach to the problem is rigidly determined by resolutions of the Security Council in which the parties agreed. It is a very restrictive approach. All things considered it is a task that I would have been wiser to leave to somebody better qualified.”

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Through the second half of June he was travelling about almost continuously, to Bandipura, Sonamarg, Baltal, Poonch, Rawalakot, along the

Rawalpindi-Srinagar road through the Jhelum

valley several times, to

Skardu and Gilgit, to Jammu and Leh, through some of the world’s most magnificent mountain scenery, though he wrote to Latham in early July of his ‘strong prejudices in favour of a more hygienic setting for beauty. It all reminds me of the old statement that the smell of the Liffey is one of the sights of Dublin’.?6 By this stage his staff had been augmented by a military adviser, General Courtney H. Hodges, formerly in command of the United States 1st Army, and Dixon now began preparing position papers on expedients for solving the plebiscite problem which he would use when he met the Prime Ministers in New Delhi, discussing them with Campbell, Lourié and Hodges.?” On 12 July he saw Bajpai in New Delhi and stressed that There were two things . . . which I was not willing to do. One was to act as a channel of communication between the parties. The other was to put forward proposals to the parties, for one to say that it would not agree to this small thing and the other another thing. He said that there was no suggestion that I should do either.

Yet Dixon would soon be forced into doing just this. He proposed to Bajpai that the Prime Ministers should meet with him on 20 July (having rejected Nehru’s proposal for a preliminary meeting with lower-level ministers and officials), and pointed out that he had gone about trying to picture what the position would be when the troops were with-

drawn from the cease-fire line, what dangers there might be, what reasons might exist for the use of troops . . . Sir Girja said that he understood that the whole discussion would be about the steps to make room for a plebiscite. I said it was my intention to pursue the question of a plebiscite until it was exhausted. But I was not desirous of setting any limits to what the Prime Ministers might suggest. My only desire was to obtain an agreement.”*

Later that day he made similar points to him and Liaquat Ali Khan on 20 July. accepted the suggestion, though doubting plebiscite proposal. Dixon went to great the conference would be conducted and prepared to address.

Nehru, who agreed to meet with In Karachi on the 17th Liaquat whether Nehru would hold to the lengths to explain to Liaquat how what matters Liaquat should be

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This conference of the Prime Ministers with Dixon ran from 20 to 25 July. No private memorandums were kept by Dixon but his diary provides some notes, and fuller details are given in his final report to the Security Council. The diary reveals that on the first day they discussed demilitarisation and the Prime Ministers ‘agreed to a press communiqué which said nothing’. On the 21st there was a service to commemorate Brigadier H. H.

Angle and other United Nations observers who had died in an air crash on the 17th, ‘Then at 10 the two PMs & I met again. We went on till 1 pm & resumed at 4.30: to adjourn until 10.30 tomorrow when we reached 6.30’. On the 22nd they met from 10.30 a.m. until 1 p.m. and from 4.30 to 7.20 p.m. There was a Grand Banquet that evening at which Dixon spoke to Nehru’s daughter Indira Gandhi. He met her on other occasions too and admired her.?? On the 23rd, after two hours’ discussion, it became evident

‘that we should not agree to anything enabling a total over all plebiscite to take place’. On the 24th the Prime Ministers agreed to a communiqué he had drafted. Liaquat told Dixon privately that he felt ‘hopeless about a settlement’ on the lines Dixon had opened up. During these talks Dixon had

focused on securing the freedom and fairness of a plebiscite for the whole

State of Jammu and Kashmir. He felt confident of securing these conditions on the Pakistani side of the line but not on the Indian side, where Sheikh Abdullah’s administration and the presence of armed state militia and police units made any free and fair vote most unlikely.°° He had gone into these sessions with no single plan but several alternative ideas. He had begun by accepting India’s point that Pakistani forces had entered the State in May 1948 inconsistently with international law, and he had proposed that the

first step in demilitarisation should be a withdrawal of Pakistani forces beginning on a specified day. A set number of days later India would com-

mence withdrawals on its side: ‘I asked for (1) the withdrawal of the forces of the Indian Regular Army, (2) the withdrawal or disarming and disbandment of the Jammu and Kashmir State Forces, (3) the disarming and dis-

bandment of the Jammu and Kashmir State Militia’. Pakistan would disarm

and disband the Azad Kashmir forces and the Northern Scouts. These oper-

ations would be phased, with the details settled between the respective Chiefs of Staff. The withdrawal proposed was not total, but the size of forces remaining for purposes of security at the time of the plebiscite should be as small as possible in the interests of the independence and integrity of

the vote.?!

Nehru rejected this plan on several grounds, including alleged security concerns and the principle that India could not countenance limiting her forces on her own territory in consequence of Pakistan’s previous invasion

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of part of that territory. Any forces remaining on the Pakistani side, Nehru argued, should be purely ‘civil’. To meet this last objection, Dixon proposed that district magistrates and subordinate officers could exercise authority there. Nehru objected that these people had in many instances been appointed by Pakistan to replace former officers and so might be repugnant to India, but Nehru had no alternative ideas of his own in this respect. Dixon’s plan was more complex than suggested in this outline—for instance he had distinct proposals covering the northern areas, again rejected by Nehru, who was quite uncooperative, at no stage offering alternatives to the proposals he rejected.*? The simple fact was that Nehru knew that if a fair plebiscite were held for the whole territory India would lose it. Having anticipated India’s rejection of his plans for demilitarisation followed by a plebiscite across a still-divided state, Dixon had come to the table with three other suggestions, each involving plans for bringing into

existence for the period of the plebiscite a single government for the entire State: a coalition government headed by Sheikh Abdullah and Ghulam Abbas; an administration of the whole State composed of non-political persons of trust holding judicial or administrative office; and an administration constituted entirely of United Nations representatives. Nehru rejected

all three concepts, again without making any suggestions of his own. As

Dixon put it in his report,

In the end I became convinced that India’s agreement would never be obtained to demilitarization in any such form, or to provisions governing the period of the plebiscite of any such character, as would in my opinion permit of the plebiscite being conducted in conditions sufficiently guarding against intimidation and other forms of influence and abuse by which the freedom and fairness of the plebiscite might be imperilled.»

By 24 July prospects for a settlement were bleak, and it is not surprising that when Dixon wrote to his daughter Anne that evening his sense of frustration and hopelessness extended to the society around him: there is so much to be done & such a lack of understanding among the people of the advantages of progress that it looks hopeless. Even on the steps of Government House a statue of a cow has been set up because their religion includes the worship of the Cow! Yet I doubt whether there is in all India a healthy cow of sound stock! Only Indian cattle can survive the diseases of the place & they all look as if it has been a hard struggle.**

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Dixon had just one more card to play, a totally different plan previ-

ously worked out with his staff:

I asked the Prime Minister of India, the Prime Minister of Pakistan being present, what was the attitude of India

(1) to a plan for taking the plebiscite by sections or areas and the allocation of each section or area according to the result of the vote

therein or

(2) to a plan by which it was conceded that some areas were certain to vote for accession to Pakistan and some for accession to India and by which, without taking a vote therein, they should be allotted accordingly and the plebiscite should be confined only to the uncertain area, which I said appeared to be the Valley of Kashmir and perhaps some adjacent country. I pointed out that in both cases it would be necessary to provide against the possibility of a break in the continuity of the territory which would go to the one party or to the other.’

The Pakistani Prime Minister objected that India had already agreed that a plebiscite of the entire State should decide its overall destiny, but at Dixon’s request Nehru said he would consult with his colleagues and inform him of India’s views on the plan just outlined. On this basis Dixon secured the agreement of both Prime Ministers to an adjournment of a conference which

otherwise would now have ended in failure.

Dixon stayed in New Delhi and on the 26th discussed with Nehru India’s response, which turned out to be essentially favourable. They talked for ninety minutes and the details are of enduring interest for two reasons: first, the Dixon plan is still accepted as the best ever tabled to resolve the Kashmir dispute, a dispute that remains unresolved early in the twenty-first century; and secondly, many of the details in Dixon’s private record of this discussion, and subsequent ones with Nehru’s ministers, are not disclosed in

his report to the Security Council. Nehru said that India was willing to give Pakistan guarantees regarding the waters of the Chenab River and conceded that the territory to the west of the ceasefire line where it ran north and south would go at once to Pakistan, but he would not concede Dixon’s argument that the eastern boundary of the strongly Muslim territory to be allotted to

Pakistan would have to be well east of the ceasefire line. The tehsil, or pro-

vince, of Ladakh (Buddhist) would go entirely to India. Nehru was vague about where he regarded the Muslim territory in the north as beginning, and his attitude to Jammu was also less than clear. On the other hand he seemed willing to concede to Pakistan all of the considerable territory to the north of the ceasefire line where it ran east and west. He agreed with Dixon’s

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definition of the Valley of Kashmir as the area within the top of the water-

shed of the mountains surrounding it, in other words as defined in terms of the direction of river flows from their sources. Dixon’s detailed knowledge of the physical features of these mountains is revealed in the discussion: Nehru ‘claimed that the Kishanganga might be a suitable boundary. I said that that was a boundary on the other side of the watershed’. Nehru was worried lest Dixon put forward these proposals to the Pakistani authorities as if on behalf of India, and Dixon reassured him he would not do so. There was agreement that Dixon should see other Indian ministers on these matters before proceeding to Karachi.>* Accordingly he saw Bajpai and others on 27 and 29 July and refined much of the detail. Dixon’s grasp of that detail and his preparedness to put his own arguments confidently is suggested in his concept of where the westerly boundary of the future ‘Indian’ territory should be drawn vis-a-vis

the current ceasefire line:

I said that what they proposed was a matter for them to decide, but I also had given some study to the matter since we met. I said my opinion was that beginning south, a line should be drawn as the westerly boundary, which approximately followed the West boundary of the District of Jammu to the boundary between the tehsils of Rampur and Riasi, and then up that boundary beside the Pir Panjal Pass until you reached a point

not far south of the cease-fire line where it turns to the East. Thence I

would draw a line down through the Tragbal Pass to Haramukh and then follow round the south boundary of the district of Baramulla and the east and the south boundary of the district of Anantnag until it met again the boundary between the tehsils of Rampur and Riasi. I produced a map

and indicated the course of the boundary. I said that if it became necessary I felt I should throw my weight in favour of this view, because for the reasons I gave on Thursday, I thought it was both unwise and mistaken to follow closely the cease-fire line.>”

This elicited no immediate dissent, presumably because it was so detailed, clear and reasonable. Though the aide mémoire Dixon was given the following day, which stated the principles on which India was prepared to proceed, indicated the retention by India of the area between the Pir Panjal Range and the ceasefire line, and (in Dixon’s view) a too extensive claim to include in the plebiscite area some territory to the north-west of the Kishanganga River in Muzaffarabad district, he was assured that India

would insist on neither point if it proved fatal to a settlement.** Dixon was now moderately hopeful of a final agreement, writing to Latham on 28 July:

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I have spent, I am told, nearly eighteen hours in the aggregate, in secret conferences with the Prime Ministers of India and Pakistan, over a period of five days. It is an interesting experience and one which did not destroy all hope of settlement, but I rather think that elsewhere a discussion of

so long a time between two Prime Ministers would have produced a settlement—or else a war. I am now engaged in pursuing some of the alternative ideas to those which were so fully discussed. These alternatives were put forward by myself at the end of the conference, and I am told by some that they will produce settlement. However the world is full of optimists and, as you know, I have always been afraid to join the band.*?

He now flew to Karachi to secure Pakistan’s agreement to the idea of

a second conference, which Nehru had accepted on the basis of Dixon’s new

plan. The Pakistanis were reluctant, pointing out that India had originally agreed to a plebiscite for the whole of the State of Jammu and Kashmir. Pakistan, of course, had expected to win such a plebiscite and gain the State in its entirety. After several meetings, however, they said they would agree to an overall partition without plebiscite in which the Valley went to Pakistan automatically—not Dixon’s plan at all. Back in Delhi he failed (as he expected) to secure India’s acceptance of this. That might seem to have put paid to any second conference, but he now suggested that he himself should prepare a detailed plan for a plebiscite in the Valley and partition for the rest

of the State. Once done he would call a conference and lay his plan before

the Prime Ministers for acceptance or rejection, or modification by mutual agreement. He believed he could secure Pakistan’s agreement to this, he told

Nehru, as they would not be embarrassed at home by having to accept any

concept in advance. After consideration Nehru agreed to this. Dixon then returned to Karachi where after a great deal of persuasion extending over more than a week, and more flying to Delhi and back—creating the first historical example of ‘shuttle diplomacy’—Pakistan finally agreed on the basis that a plebiscite in the Valley would (as stated by Dixon) be conducted under the administration of United Nations officers having power to exclude troops of any description if they thought fit, or indeed invite their participation if that seemed appropriate. This made conceivable the participation of elements of the Pakistani military in the Valley, under United Nations authority and within the framework of a secured plebiscite. (In retrospect this aspect was unwise, infuriating India as it did.) And India and Pakistan would have equal rights in regard to the political campaign preceding the plebiscite. Pakistan had insisted on all of these points, and indeed Dixon’s experience in the Valley had shown him that it was ruled as a police state. Securing the

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integrity of a plebiscite and of the campaign leading up to it by means such as those suggested in Dixon’s concept was therefore vital. On 15 August he informed Nehru by telegram of Pakistan’s acceptance of a conference on these broad terms, and while waiting for a reply he wrote again to Anne. Her letters, he told her, took their time getting to him because they came through the Information Centre in Delhi, ‘run by a rather inefficient Indian with a name like a patent medicine for dyspepsia—siswas’. The ‘Mission’, he confided, has got to another crisis and I have had to be very active .. . For some silly reason the Pak. Air Force gave a display. It included an attack by troops & aircraft on a (canvas and paper) fort. First troops fired at it. Then aircraft brought paratroopers who were dropped . . . Next troop carrying planes brought more troops & jeeps . .. Then some [Hawker] Furies were supposed to blow up roads & bridges behind the Fort to prevent the enemy sending up reinforcements. They dropped live bombs. One Fury diving to do this crashed & blew up. The whole plane came to pieces & the pieces hurtled along the drome. It was not nice to see. Of course the poor pilot was killed. However they went on with the show & the broadcast announcer apologized for the delay ‘caused by the crash

you

have

just witnessed,

while

the casualty

is cleared

away.’

Human life means very little here... An answer is expected to a telegram I sent [Nehru] yesterday &

if he

says one thing it may keep me here for some weeks more. If he says the other thing, perhaps I can pack up. As he is not a man who likes to be difficult, he may manage to avoid saying one thing or the other. In that case I do not know what I do. Of course I must stick to the job but I am

rather sick of them all & want to be at home.*° Nehru replied to Dixon’s telegram with an emphatic refusal—if Dixon would come to Delhi, Nehru would explain India’s position. Dixon’s mood is captured ina letter to his wife, written on the plane down to Delhi shortly after receiving this news: At the end of a very unfortunate telegram refusing to contemplate a plan of mine for insuring the freedom from intimidation of the voters at a plebiscite Mr Nehru suggested that I should come down to hear an explanation of his point of view so as to avoid misunderstanding. It is only too evident that India wants to win the plebiscite & feels that too much fairness & freedom at the taking of the vote might not be helpful in allowing her to secure the result ... The Pakistanis have repeatedly expressed the view that India would never agree unless she was left in a

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position, by herself or her supporters, to sway the vote by a show of force and by other improper means. I did not think that Mr Nehru would take a stand against precautions evidently necessary to remove such dangers & suspicions of them, but the strained arguments & the ill temper of the telegram he sent me are characteristic of a man instinctively aware that he is taking up an untenable position & not very proud of it... The governments have adopted the strangest attitude. They seem to think that it is my duty to bring about a settlement & that it is not their affair at all. Both sides have shown resistance & suspicion. You would almost think that they regarded me as attempting to overreach them to my own advantage. From the point of view of anybody of our upbringing & environment it is fantastic. It took me a little time to believe what I was actually experiencing."!

Writing to Latham a few hours later in Delhi he put it in classical terms: ‘I

have been rolling the stone of Sisyphus first in Delhi 8& then in Karachi. About a week ago I left it here at the top of the hill & went up to Karachi where after great exertions I got the stone up to the top of the Pakistani hill; but only at the cost of dislodging the stone on India’s hill’.4* He concurred in the view of two of his staff that ‘the only people who gained by the departure of the British were the British’, adding, ‘For myself it is a mystery why they remained for nearly two centuries’.*? To Alan Watt, recently appointed

Secretary of the Department of External Affairs in Canberra, he wrote of the ‘hopeless’ situation of India blocking a vote policed by the United Nations in the Valley, but lauded Pakistan for having agreed to a partial partition and a supervised vote in the Valley even though this went against her long-established position of a vote in all of the State of Jammu and Kashmir. ‘One thing my experience has taught me’, he added, and that is how utterly impossible it is for us to relax the White Australia policy. If we do relax it we only increase the danger to our safety as well as make our own society impossible. But whatever we do the danger of India to Australia in the future can hardly be exaggerated, that is unless

it is eliminated by a still greater danger.

(Perhaps he saw China as a potential enemy to both India and Australia. Certainly he believed, on the basis of his experience in the subcontinent, that a large and cohesive minority group, ethnically or religiously distinct, inevitably spelt trouble for any host culture.) In his meeting with Dixon on 19 August Nehru made four points: first,

Pakistan was the aggressor and its troops could never be allowed to enter

the plebiscite area, meaning the Valley; secondly, under Dixon’s plan the

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Government of Jammu and Kashmir would be superseded in the Valley for the interim, which went beyond what was necessary for the purpose in view; thirdly, there could be no equality of any right between India and Pakistan in regard to the campaign preceding the plebiscite, and only the people of Jammu and Kashmir should be allowed any part in it; fourthly, under Dixon’s plan the security of the State would be jeopardised.‘* Given these objections there could be no grounds for a second conference, and Dixon’s report to the Security Council laid the blame for this squarely with India. Because the dispute over Kashmir remains unresolved, it is pertinent to quote the report at some length to reveal the logic of Dixon’s positions on these final crucial issues. Nehru’s four arguments against the plan were invalid, as Dixon saw it, because they appeared to me to overlook the real nature of a proposal for partition and a partial plebiscite or else to make it completely impossible. The question whether Pakistan had or had not been an aggressor had, to my mind, nothing to do with the results of a partition and the fairness and freedom of a partial plebiscite. To agree that Pakistan should take under a partition part of the State must be to agree that, independently of any such question, she took not merely an interest in but sovereignty of the territory. Again, as I saw the matter, to agree that the territory not immediately divided between India and Pakistan should pass to one or the other according to the vote of the inhabitants at a plebiscite conducted by the United Nations must be to agree to a test involving an equal interest in both countries in the result. Further it is to agree to the ascertainment of the will of the people by an independent authority because that authority will see that the plebiscite is freely and fairly conducted. Thad formed the opinion that it was not easy to exclude the danger that the inhabitants of the Valley of Kashmir would vote under fear or apprehension of consequences and other improper influences. They are not high spirited people of an independent or resolute temper. For the most part they are illiterate. There were large numbers of regular soldiers of the Indian Army as well as of the State Militia and police and more often than not they were under arms. The State Government was exercising wide powers of arbitrary arrest. These are not matters that the Kashmiris inhabiting the Valley could be expected to disregard in choosing between voting as the Government of Kashmir asked them and voting for accession to Pakistan. It appeared to me that the danger to the freedom and fairness of the plebiscite could not be removed unless in the administrative hierarchy of

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the State so far as it controlled the plebiscite area United Nations Officers were interposed temporarily. The authority of the Ministry over the rest of the State would not be affected. The ordinary working of the machinery of government in the plebiscite area would go on without change, but for the limited area the United Nations Administrators would for the time being be responsible for the working of the machinery in order to see that it was not used to influence the voters, as otherwise it well might be in countless ways. The presence of numbers of troops, armed militia and police in the Valley did not appear to me to be favourable to a free expression of the people’s will and I considered that the administrative body might be safely given powers to decide what was necessary to insure the maintenance of order and to protect the area from external danger if they found that any existed. I did not suppose that they would invoke Pakistan troops without good cause, but I saw no reason why both countries should not be under an obligation to provide troops if requested. I saw no reason to change the opinion I had formed or to depart from the provision I had intended to include. I could not expose a plebiscite conducted under the authority of the United Nations to the dangers which I believed certainly to exist. Indeed I came to the conclusion that it would be impossible to give effect to the doctrines formulated by India in objection to my plan and at the same time frame a plan for partition and a

limited plebiscite which I could ask Pakistan to accept.*®

Nehru concurred in Dixon’s view that no hope now existed of an agreement by which a plebiscite could be conducted and the fate of the Valley decided, and that there seemed no other expedient for disposing of the Valley that would be acceptable to both sides. In which case, he agreed, there was nothing further Dixon could do in the subcontinent. Nehru’s tendency to return again and again to the prior fact of Pakistani ‘aggression’ against India had prompted Dixon, perhaps with his grandfather in mind, to put an apt analogy to Nehru in this last meeting: ‘I said that it all sounded to me like the puritanical or Calvinistic doctrine of original sin, which vexed the lives of our great grandparents and made them miserable’.*” ‘I have come only an hour or so from my last visit to Mr Nehru’, Dixon wrote to his wife on his return to Government House. As | expected when I wrote to you yesterday from the plane, no way out was found or perhaps sought. He was courteous and a little apologetic. I expressed myself mildly in tone and adopted a soft manner but in substance I did not give. I believe he has left himself in an unfortunate position. I could make a pretty fair case to a jury against India, that is in

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effect against him. But of course it is not a judicial question and moral principles here are probably different from those we are always prepared to recognize & sometimes to obey.‘® Dixon ascribed the failure of his mission to Nehru, whom he had come to

distrust. Without wasting any more of his time in Delhi he now flew to Karachi where Liaquat Ali Khan took a similarly hopeless view. Minister for Kashmir Affairs Gurmani later told Richard Casey ‘that Owen Dixon’s report was sensible and right, although he deplored Dixon’s not having pressed his conclusions harder on Nehru’.”” Dixon told his wife that Liaquat had ‘said that no man had done more than I & no one could do more to settle it’, but that was no consolation. The entire burden of solving the problem has been cast on me. Not a single suggestion as to how it could be settled has been made either by India or Pakistan & they have resisted everything. The PM of Pakistan has invited me to a dinner tonight & has also invited our staff. It is a farewell party & the invitation is the nearest gesture to an expression of gratification or gratitude that I have heard in the country. If before I go anyone says “Thank you’ I shall faint with surprise.*°

In a letter to Anne from Karachi, written around midnight on 21 August, he referred to Delhi as ‘a place I hope and trust that I shall never again see’ and to Karachi as ‘a place I hope to leave forever at 9 am the day

after tomorrow’. Commenting on something in her last letter, he assured her

“You were noble girls over the French translation. I wish a similar sense of honour existed here. I can hardly imagine a people with such crooked and dishonourable minds and natures as the Hindus possess. I am sure that

every Hindu girl in a like situation would have cheated her hardest’. It would be wrong to conclude from this that the last few months had disillusioned Dixon. He had brought no illusions with him. ‘I don’t mind telling you’, he continued, thar Ishall not readily take on another job away from home. It has been too long a separation. IfI had been in London all the time I would have said that & I would sooner be there than anywhere. But in this awful land it has been terrible. It is now half after midnight & a strong moisture laden wind is blowing through the doorway. We don’t have doors or at all events they are always pinned back . . . It is so hot that even now I am wearing only shirt & trousers. Except to receive high ranking visitors I have not worn a coat for the entire period. Of course no undershirt. Yet the wind blows so hard you have to put weights on every book

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& paper. In Delhi on the other hand there is no wind. Yesterday it was

said to be cool there because the thermometer had not reached 100°— only 98.5°. Geography lessons leave out all you want to know.*!

Dixon was fed up with diplomacy and the conducting of charades; his letters to Anne were a pleasure to write. After dealing with unhelpful, ungenerous spirits by day, men who measured every word, weighed each miserable minute concession before finally and reluctantly allowing it to be dragged from them, how infinitely preferable and what a relief to converse in the evenings, if only by mail, with a generous-spirited and unsophisticated daughter raised in the love of frankness and truth.

His mission was a failure through no fault of his own, and Dixon left

Karachi for London on 23 August. During the three-day flight he wrote his report to the Security Council, then revised it in London. He visited art galleries, viewed the bomb damage from World War II still evident at the Tower, the Temple and elsewhere, and saw his cousin Colin Dixon who had been living in England for many years and had recently been divorced. In spite of his disapproval of divorce, Dixon was not lacking in understanding

of the complexities of life:

Colin came to lunch & told me that after the birth of their son now 4 years Margaret and he had drifted apart. She had lost her affection for him. They had separated. While I was in India she had divorced him on the ground of adultery. After the separation he had met the other woman. Tt was not a ‘put up job’. He sometimes saw the woman. He spoke very loyally of Margaret, who wrote to him & invited him down to see the children. He described her as a wonderful person. I advised him to keep up a relation of interest in her & helpfulness.°?

He again saw Ernest Bevin, who ‘looked better & showed a better grip. But he wandered & told anecdotes. Wholly unfit to be Foreign Secretary’.*? On the afternoon of 1 September he visited Prime Minister Clement Attlee at 10 Downing Street to report on his mission, travelling the next day up through Oxford to Boar’s Hill to see the eminent 84-year-old expatriate Aus-

tralian Gilbert Murray and his wife, Lady Mary Howard (of Castle Howard,

Yorkshire). Possibly they had met on one of Dixon's previous trips to England. Murray enjoyed an almost legendary status as a scholar and

teacher of Greek, though some of his work was beginning to date. Many

years earlier he had produced, among other works, the Oxford Classical Texts edition of Euripides (3 volumes, 1901-9), Dixon’s favourite dramatist. ‘He said he had been reading Tuckers Supplices yesterday’, Dixon noted. ‘He

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called it a venturesome work & said his Choephori was his best work.—a

good man & a very good scholar.’ Like Dixon, Murray was aloof from institutional religion. In politics he was a Liberal (he had stood three times for Oxford, without success), and he was an internationalist (a fond pastime

as Dixon would have seen it), having recently retired as President of the

United Nations Association. Perhaps Dixon managed to shake some of his illusions in that regard, though neither of them thought very highly of the

‘third world’.

A variety of dinners included one with Lord Simonds, just over a year away from being Lord Chancellor. Dixon’s days in England renewed his love for the place. At one generation’s remove, his soul belonged there. ‘For myself I feel that we ought to come over here to live’, he wrote to Anne. ‘Money is the only obstacle. By the time the income of a retired judge pays exchange & tax there is not enough left to live on & I fancy living is dearer

here than in Australia.’5*

On 9 September, a Saturday, he arrived in New York and on the Monday went out to Lake Success where the various sections of the United Nations were preparing to move to their new and lavish headquarters on

the east side of Manhattan. ‘No one bothered about me & I was left un-

heeded.’ At length he saw Andrew W. Cordier, Executive Assistant to the

Secretary-General, ‘& said I did not know what to do. He took me to Lie

but it was all very casual. Lie spoke hot air & had no clue’.** A few days later in a letter to Latham, Dixon described the United Nations as ‘a miracle of incompetence’.°” Meanwhile, the report was being typed up and its appended maps photostatted. It was submitted to the Security Council on the 15th. Alastair Lamb has described it as ‘a fascinating document, one of the very few pieces with claims to a measure of literary elegance and wit to emerge from the sorry Kashmir story’, adding that ‘Dixon undoubtedly believed, and nothing that happened in the years to come would demonstrate that he was mistaken, that his scheme of partition offered the only possible solution, both in theory and in practice, to the Kashmir problem’.** It is a rightly pes-

simistic report, and subsequent history has confirmed it in this respect.

After reading it through, Felix Frankfurter wrote to Dixon in admiration of its ‘daring’ and concision—‘You’ve cut the matter to the bone’.°? On the 17th, a Sunday, Dixon wrote to Anne, I have shot in my report to the Security Council and except for seeing people about it and my return home that is the end of the job. Funnily enough with nothing to do I don’t know how to spend my time in New York—lIt is a bit silly but I can’t think of anything I want to see or do.

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There are plenty of concerts & theatres movies & the like, open on a Sunday even, but I don’t want to go to any of them. The advertisements are enough to put you off. I have an idea that a trip on a ferry up the Hudson might fill in the afternoon. However a nice Australian named Plimsoll is to come at 11 am & he may have some ideas about filling in

the time.©

When James Plimsoll (of Australia’s Department of External Affairs and attached to the United Nations) arrived they went out and walked from one end of Central Park to the other, lunched near Times Square, visited Columbia

University and spent the evening at the French Café (Rockefeller Plaza) and

the Café Schumann.*' Among the few people he saw in New York at this time were John D. Hickerson, United States Assistant Secretary of State, and Norman Makin the Australian Ambassador. On the 19th, Dined with Mr

& Mrs Acheson.

He spoke very unreservedly (1) His

inability to reach Bevins mind & the latters failure: the British Govts deficiency—‘tired old without energy or definite policy’ (2) The French obstruction & absence of any real government: their corruption & the impossibility of getting on terms wh wd be carried out: Schumann good but every thing said to him relaid by subordinates to Moscow. (3) the insistence of the UK till Churchills speech of sending machine tools & other warlike aids to Russia 8& refusal to meet Americas objections. (4) His own tiredness of all this & the measures he felt impelled to resort

to (4) [sic] Spenders silly Pacific pact & his own remonstrances Australias failure to make concrete suggestions about Jap Peace Treaty or anything else. (5) Makin

(6) Russia. We talked of India & also of UN.

Mrs A. talked afterwards to me.*

Dixon had spoken as unreservedly as Acheson, who nine years later told a correspondent, ‘I remember when Owen Dixon . . . came to see me after his struggles with Nehru, and said, Dean, if you ever allow that man to influence any action of yours in any respect whatsoever, you ought to go to an institution where they can examine your head’. Acheson’s own experience with Nehru confirmed the value of the advice: ‘I have felt that way’, he added,

‘about

him

and

about

[Krishna]

Menon’.

Nehru

on

his side

respected Dixon, and Lord Mountbatten, by way of praising Dixon, told Richard Casey that he was ‘about the only individual who would be accept-

able to Nehru as an arbitrator in the Kashmir problem’.“ With time still to kill, on 21 September Dixon travelled by train to

New Milford in Connecticut to visit Frankfurter and his wife: ‘We discussed India & Nehru about whom neither had a good personal impression. They

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had entertained him. We discussed British Govt. & its weakness. Their visit to UK. Differences in national character. Spender. Menzies. Dean Acheson & my conversation with him, Vinson: Douglas’.6° Back in New York on the 23rd he visited the Frick Gallery, finally leaving for home on the 24th. Alice met him in Sydney on the 27th and they were home with the family the following day. The period away had taken five months of his life,

a waste of his time and energies except for the production of an excellent

plan destined never to be implemented. His adviser Arthur Campbell, who would spend three years with direct and seven years with indirect involvement in the Kashmir problem, would write in 1980 that ‘the methods followed by Sir Owen brought the Kashmir issue closer to the possibility of solution than any set of procedures devised before or since’.

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CHIEF JUSTICEIN-WAITING 1950-1952

THE COLD War had turned hot in Korea following the North’s invasion of the South in June 1950. Under United Nations auspices Australia had become involved in the fighting, but it was a local war and Australia was on nothing like a war footing. The Menzies Government had passed the Communist Party Dissolution Act 1950, which was then challenged in the High Court.' Section 4 of the Act proscribed the Communist Party of Australia

and gave the Governor-General authority to determine (on the basis of advice tendered in Council) whether particular organisations and individuals were affiliated with the Party, and whether such organisations and individuals

threatened the defence of the Commonwealth (sections 5 and 9). Against his

decision on the first question they had the right to a challenge; not on the

second. The Act, based on the defence power in section 51 (vi) of the Constitution and on section 51 (xxxix) read with section 61, purported to jus-

tify itself by way of its preamble, which recited as facts a series of inevitably contentious statements about Marxism-Leninism, communist parties generally, and their commitment to hastening the violent overthrow of the capitalist system. The Communist Party of Australia, defence-related industrial unions knowing themselves targeted, and individual communists challenged the Act’s validity and the allegations recited in its preamble. An impressive array of counsel, among them six KCs including Evatt, were enlisted by the various plaintiffs. Barwick led for the Commonwealth, backed (in Dixon’s words) by ‘a grotesquely large number of other counsel’,? nine barristers including three KCs—though, oddly, only Barwick would address the Court in support of the Act. On the various actions coming on to be heard, Dixon,

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after granting interim injunctions, stated a case for the Full Court: whether evidence of fact to contradict the preamble or otherwise to invalidate the exercise of the legislative power was admissible and, if not, whether the Act itself was valid under the defence power. This sensational case would open on 14 November and anticipation was intense. On 29 October Richard Casey, Minister for External Affairs, called at

‘Yallambee’. It was not about Kashmir—Dixon had already briefed Alan Watt (Secretary of Casey’s department) on that. Nor was it a merely social

visit. He came to the point slowly, first asking whether there was anyone

Dixon would suggest for the Honours List. The answer was ‘No’. Menzies would be best advised, Dixon offered, ‘to go back to the War period’ and ‘repair the failures’ of the Chifley governments ‘to distinguish those who had

done real things in times of crisis’. Casey agreed but added ‘that Menzies

said a knighthood had to go to the HCA’. That offended Dixon’s civic sense:

giving knighthoods to members of the High Court as a matter of course ‘made men who had done things ashamed of honours’. If Casey knew about

Dixon’s imminent appointment as Privy Councillor, he did not let on— Dixon would learn of that on New Year’s Day. Casey now turned to the real topic, his depression. Menzies would see him no more than once a month and then only for a few minutes—and all because of Casey’s refusal to join Menzies’ plot to oust Lyons in the 1930s and his wanting Bruce rather than Menzies to succeed on Lyons’ death. ‘How

well do you know him?’ he asked. Dixon rehearsed their long relationship,

including his remonstrating with Menzies ‘over all kinds of things’. As he noted that night, I felt it perhaps a bit dangerous [because] of the possibility of distorted repetition but worth the risk in an effort to get him to believe that Menzies is essentially tolerant & good natured to his critics if they are friendly and he knows they are. He narrated two or three direct personal approaches by himself to break down the barrier. I suggested that Fadden told back what the other said & Casey admitted this possibility. I recommended him to seize every chance of defending or otherwise serving Menzies in the House or elsewhere without solicitation.>

Dixon understood human nature and knew Menzies. Had Casey tried it, it

might have worked, but his hurt dignity and humourless demeanour (so dif-

ferent from Menzies’) worked against him and rapprochement never came. The ‘Commo case’ (Dixon’s standard term) opened on 14 November in Sydney. Outside, scores of police held back pressing throngs of would-be spectators, and Dixon’s daughter Betty was unable to get in, though her

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friend Margaret Kitto succeeded. Barwick set out the purposes of the Act and justified it by denying it was a time of peace, playing on the expansion of communist power in Europe and Asia. His presentation was high on dialectics but low on evidence (local or international) of specific subversive acts. The material set forth in the recitals of the preamble was not opinion, he insisted, it was notorious fact, but the Act’s validity did not depend on the truth of the recitals. They were simply Parliament’s reasons for legislating. It depended on the defence power. Barwick was followed by E. A. H. Laurie, leading for the Communist Party. On 17 November Latham continually attacked Laurie, Dixon noting that the Chief Justice ‘displayed an unrestrained hostility that I thought very unwise not to say unjudicial’.

Then in mid-afternoon Evatt led for the Waterside Workers’ Federation and

the Federated Ironworkers’ Association, attacking the preamble as a mere series of assertions by which the legislature was endeavouring to ‘lift itself by its bootstraps’, and dwelling on the unchallengeable aspect of the power given to the Governor-General to sustain the Act. ‘I had never heard him to more advantage & he made a considerable impression’, Dixon thought, though by the 22nd his argument had become ‘dreary’ and ‘repetitious’.* By 11 December Barwick, in reply, sensing that the Act was likely to be thrown out, was doing his case ‘a great deal of harm by his approach, based on impossible constructions to save the Act’, Dixon thought. On the 13th Latham, who was also unimpressed by Barwick but thought the Act valid, read to Dixon the opening section of a judgment he had been preparing. ‘It sickened me’, Dixon observed, ‘with its abnegation of the function of the Court & I said so’. Like Fullagar, who stressed it in his judgment, Dixon believed strongly in the doctrine of judicial review—the Court’s right and responsibility, under a federal constitution, to decide whether challenged Acts of the legislature were within power, a principle on which Latham was notoriously ambivalent.’ On the 14th Dixon generously (but in vain) offered Barwick a stronger line of reasoning—‘He made no fist of it’.6 The way was open for an effective counter-reply, and in Dixon’s view Evatt ‘made hay of Barwicks case[.] I felt it necessary to say that there was another case than that B had argued

& the unexpected course he had taken placed us in a position of peculiar

responsibility—a devastating indictment of the Commonwealth’s leading

counsel.”

In regard to this case, and not just this one, Dixon already enjoyed the de facto authority of Chief Justice, developing the basics of his own judgment in the course of the case (on which Latham called no conference®), and discussing his views with the others, particularly Fullagar and Kitto whom

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he most respected, so influencing their judgments,’ which were written up through January and February. Fullagar visited ‘Yallambee’ on 8 January to say he had come out against the Act. He visited again on the 22nd when Dixon offered a line of reasoning in support of the Act’s validity which Fullagar thought infinitely stronger than Barwick’s, but then Dixon proceeded

to answer most of it himself. In writing his own judgment Dixon found it

very hard to formulate any grounds for validity or even to offer a satisfactory explanation contra.'° Though the first draft was finished, read through and corrected on 31 January he still felt it was ‘very unsatisfactory’. He talked to Fullagar about the case again on 1 February, Fullagar thinking that the alleged facts in the recitals should be proved. Latham, meanwhile, was fretting over a speech he had made to the House of Representatives in 1926—would Dixon read it and advise him? Dixon read it and discussed it on the Sth, finding Latham extremely agitated—what if the Communists dragged it up and damaged the Court? Dixon told him to stop fretting, it couldn’t be helped, no one would care, he simply had to deliver a judgment. Yes, Latham agreed, it was too late to leave the case, wasn’t it, people would say he should have discovered it before, and it would be badly received."' As for the other judges, when he spoke to McTiernan and Webb on 13 February Dixon found they both ‘vacillated’. By the 12th Fullagar had written a draft

judgment and given it to Dixon to read: the entire Act was definitively bad.

Outsiders were trying their influence on the vacillating McTiernan—his associate showed Mr Justice Clyne’s associate a letter to McTiernan from Mr Justice Dunphy of the Commonwealth Arbitration Court, telling him of his duty as a Roman Catholic to uphold the Act. McTiernan had replied ‘that if that was his view of the duty of a judge he should resign’. And a well-known priest had paid McTiernan a quiet visit.'? On 1 March Dixon read Fullagar’s revised judgment. It was very good,

he thought, observing that Fullagar had ‘showed his view of Barwick’s argu-

ment by ignoring it’. It is revealing to read Fullagar’s judgment alongside Dixon’s. Looking at them in purely literary terms, while both are logically structured and effective as arguments, Fullagar’s is tighter, a direct series of

interconnected paragraphs. Reading just the first sentence of each of his

paragraphs will demonstrate the point. By contrast Dixon’s judgment is more discursive, allowing itself the occasional general observations such as ‘History and not only ancient history, shows that in countries where demo-

cratic institutions have been unconditionally superseded, it has been done

not seldom by those holding the executive power’."? One could cut eight words from that sentence without much affecting its meaning: ‘and not only ancient history’, ‘unconditionally’, ‘those holding’. Dixon’s prose is usually

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tight but Fullagar’s is tighter.'* On the other hand, and in terms of their value as judgments,

Dixon’s formulations tend to have a greater exactness. He

knew that most propositions are not absolute but subject to qualifications,

and he knew in each case what those qualifications were.'*

As usual, in this case he begins with a thorough rehearsal of the facts, the substance of the Act in dispute, before proceeding to analyse that Act and tease out its flaws. The language is conceptually tight: ‘Unlike the power conferred by s. 5 of the National Security Act 1939-1943, the present power is administrative and not legislative, it is not directed to the conduct of an existing war, and its exercise is not examinable and is not susceptible of testing by reference to the constitutional power above which it cannot validly rise’.'® And it savages Barwick’s case by setting out the case he should have

made.’” The chief reasons why Dixon and the others apart from Latham

found the Act invalid were that there was no threat of general war justifying recourse to the defence power, and that the Act did not provide against specific acts. It dealt only with bodies and persons, whose actions were then to be characterised by the legislature and the executive. In this respect it differed from the legislation examined by the Dixon Court two years later in Marcus Clark & Co. Ltd v Commonwealth."* Latham circulated his judgment a week before all judgments were delivered. Fullagar was concerned and upset by it, Kitto more concerned for Latham, ‘whether it meant that he had something wrong with him’, while ‘Dudley Williams considered him mad’.'?

After the judgments were delivered in Melbourne on 9 March, with Latham dissenting, Dixon summed up their feelings in a letter to Lord Simonds: We were all rather sad about it, though we comforted ourselves with the

reflection that any contrary decision would in the future rebound upon that part of the community to which our present decision would give

most pain, and indeed it is hard to say how far the consequences of an

opposite decision might go.”°

Menzies was stunned by the result, the more so as he admired Barwick (in 1958 he would entice him into politics by offering him the attorney-

generalship). His immediate reaction was to apply to the Governor-General, William

McKell,

for a double dissolution

of Parliament, only the lower

house of which he controlled, so that he might win a majority in both houses, then hold a referendum to give the government power to do what the Act

had been intended to do. In the event, the referendum would be lost. Only

at the end of 1951 would Dixon and Menzies discuss the case, just before Christmas, having bumped into each other in Melbourne. Dixon recorded that Menzies

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mentioned Commo case & said he was shocked on reading my judgment to find what I said[.] I answered it was presented only dialectically & Barwick had no general knowledge. We needed international facts. I added that Latham had avoided having a cfce. He said he could understand him [because] he preferred to dissent like Isaacs.?!

Perhaps another reason Latham generally took that course was that he

preferred not to try his arguments out against Dixon’s in front of others.

Just a week after judgment was delivered in the Communist Party Case, and while Menzies was seeking a double dissolution, Latham informed the

Government that he was taking a year’s furlough and then retiring. He had told Dixon on 15 March. ‘Why decide now to resign?’ Dixon asked him. ‘Is it health?’ No, Latham replied, it wasn’t, but he was seventy-three. The next day he called a meeting of the judges and gave them the news. Williams and Fullagar were amazed—in Dixon’s words, ‘to resign without consulting the judges or taking them into his confidence: to keep the office of CJ vacant for

12 mos: to do it immediately after the Commo judgment & to choose the

moment when a dissolution was sought’. Over the following months people speculated on possible reasons.” For a year the Court would be without a Chief Justice, with Dixon (its most senior member after Latham) its de facto chief. Latham seems to have thought himself irreplaceable—according to

Dixon, reporting his associate John Young, Latham felt that there was no one apart from himself with the requisite experience of politics and law.?*

Family problems were requiring Dixon’s attention at this time. Franklin, now twenty-nine, was still trying to get a law degree, still a clerk at Whiting & Byrne. Dixon had employed a tutor for him, but now the tutor said he could do nothing more and Franklin should abandon his law course.’ Dixon loved this odd yet strangely brilliant dark-haired son, stooped by a twisted spine, generous and sympathetic by nature but easily provoked into fits of rage. One of Dixon’s associates remembers many occasions at their Hawthorn home observing Franklin and his father in happy conversation, speaking like two intimate friends on an equal basis. Franklin was very open and pleasant, was widely read and with a scholarly and innocent interest in history and current affairs, and it was clear that his opinion was respected by his father.’

Franklin had religious feelings, was concerned about the sufferings of others and made a point, throughout his adult life, of sending letters of condolence

to bereaved friends and people he hardly knew.?” One day in March 1951,

Dixon was lunching at the Australian Club when W. J. Byrne came up to

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talk to him. Byrne said Franklin had told him that Professor Zelman Cowen

had advised giving up work and devoting himself full-time to his studies. Byrne had completely agreed, it was necessary, but he was very sorry. He

assured Dixon that the office would always be open to Franklin and he could always return. Franklin, Byrne insisted, ‘was very much liked by everyone:

they thought of him not as an eccentric but as an exceptional person: his son

was very interested in him: fond of him’.”* But Franklin would continue to fail at law. Dixon was unable to persuade the Melbourne Public Library (now the State Library of Victoria) to find him a job in 1953. In 1954 a job would be found for him in the second-hand department of the booksellers

Robertson & Mullens.

Constituting another kind of worry was Franklin’s younger brother

Ted, almost twenty-seven and married. Not having matriculated he could

not attend university, and now he was fed up with his clerical job at Melbourne Steamship Company. On 20 January 1951 he and his wife Elizabeth, along with Dixon’s daughter Betty and her husband Peter Danby (recently married), were visiting ‘Yallambee’ for dinner and Ted seized the opportunity

to take his father aside and seek his advice. He was thinking of undertaking

a course offered by the Federal Society of Accountants and produced the syllabus, which his father read through carefully. It was a burdensome course, Dixon warned him, requiring great application, and it was useless beginning it unless he was prepared to undergo many restrictions and much regular study. Dixon advised him to get exemption from the preliminary examination because his bad handwriting would work against him, but

encouraged him: if he did do the course he would go into a different class, a qualified class of employee.”* The following day Ted had decided to enrol,

but four days later told his mother he was not equal to it. He said nothing to his father. Three days after that Ted’s wife reported he now hankered after a course in industrial management. Melbourne Steam ‘had taken him out of the cash box’ but he was sure the Managing Director, David Y. Syme, disliked him. Within another two days he had dropped the idea of industrial management, persuaded by someone that it was ‘hot air’, a fad leading nowhere, that he should stick to the Young Liberals (by thirty-five he might ‘find a place’), and that meanwhile he could try banking.*° In the event he would stay with Melbourne Steam until his sacking in early 1962. ‘I fear his fate’, his father had written as far back as 1935 when faced with the boy’s

results at a school that called him a ‘problem child’,*' but Dixon never allowed any of this to discompose him. They were the cards you were dealt. His daughters, stable and dependable, presented no problems. He was attached to both and particularly delighted in the youngest, Anne, now

almost seventeen. To her he had confided his feelings about India, and he

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enjoyed jesting with her. Thus Macleay St in Sydney:

DIXON

in April

1951

he wrote to her from 52

The denizens of ‘52’ look older and older, more haggard and decrepit,

every time I come here . . . Their present condition of apparently moribund senility is said to be due to warm food and put them in fear power go off during a journey in Do you read ‘Ginger Megs’?

the black-outs which deprive them of of imprisonment in the lift, should the that convulsive elevator . . . We have a case about him her or it,

(which is it?) The artist . . . has a contract with the Sydney Sun & wants

to transfer the page to the Telegraph who have offered him more money. His excuse or reason is that the Sun (again owing to power failures) printed the said Megs partly in black and white and not on a front page. We have to say on Monday 30th April whether he should be restrained from transferring the page to the rival newspaper. So I shall expect you to give me ‘the oil’ about Master Miss or whatever it is Megs on Sunday 29th?

Around this time he dined at ‘52’ with Alan Watt, who had attended

the Commonwealth conference in London four months earlier where he

had thought Menzies ‘head & shoulders’ above the other Prime Ministers. Bevin and the rest of the British representatives were ‘inadequate & stupid in relation to us & also to America’. Dixon accepted this. His Anglophilia can be exaggerated. He thought the American State Department infinitely superior to the British Foreign Office and concurred with the American view that the British security services could not be trusted. A few months earlier he had addressed a dinner party in Melbourne on his mission to Kashmir and been criticised by the Victorian Governor, Sir Dallas Brooks, for being

‘too pro American’.** And certainly he was pro-American when it came to Cold War international politics. He knew from his friend Dean Acheson, Truman’s Secretary of State, how hopeless the British were on a range of

Cold War issues, and he resented having received no British support during his mission, the excuse having been that the Indians and Pakistanis wanted Britain out of it. In Dixon’s view the Foreign Office could have done a little more than nothing. On 11 June 1951 he lunched at the Windsor in Melbourne with four American Congressmen. They were contemptuous of the British Foreign Office over the disappearance of Burgess and Maclean, and ‘They were obviously not impressed with this country’.*> Dixon, President of the Australian Institute of International Affairs, offered no demurral. He still believed, though, that Australia’s defence depended at least as much on

Britain as on the United States, and would later put little faith in SEATO

and ANZUS.°**

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In August there was a Convention of the Law Council of Australia in Sydney attended by eminent overseas lawyers including Lord Jowitt (formerly Lord Chancellor under Labour, now on the backbench), Lord Evershed (Master of the Rolls), Erwin N. Griswold (Dean of Harvard Law School), and Albert Van de Sandt Centlivres (Chief Justice of South Africa).

The opening, on the evening of 8 August at the Town Hall, embarrassed

Dixon. Harry Alderman, the President, bored everybody with a ‘dull & irrelevant’ address about South Australia’s contribution to federalism, John Spicer, federal Attorney-General, ‘was dreadful’, the New South Wales Attorney-General, Clarence Martin, was ‘worse’, while Barwick for the bar

‘was facetious involved & unequal to the task’. After their efforts Jowitt’s

address ‘was a relief but more an after dinner speech’. Griswold struck Dixon as the brightest of the visitors. In Melbourne on the 24th there was a dinner for them, an excrutiating affair. ‘Herring presided vaguely and confusedly. Lowe proposed the visitors in a speech about local celebrities & the trite & trivial anecdotes’, then Clifford Book (Judge of the County Court) ‘followed with even duller irrelevancies’. The guests’ speeches completely outshone those of their hosts. Dixon gave a dinner for the visitors the fol-

lowing night at the Australian Club, where his own speech no doubt went

some way towards making amends.*” Around this time he wrote his judgment in Nelungaloo Pty Ltd v Commonwealth. The plaintiff, having unsuccessfully challenged the compensation paid to it by the Australian Wheat Board under section 51 (xxxi) of the Constitution (acquisition of property on just terms), had sought to appeal to the Privy Council, which had refused to hear the case as it raised a

question as to the limits inter se of the powers of the Commonwealth and the States, and thus, under section 74, required the High Court’s certification

that the question should be decided by the Privy Council. Nelungaloo had

now come back to the Court for a section 74 certificate. The matters to be

decided were whether Nelungaloo’s challenge under section 51 (xxxi) did in fact raise an inter se question (it was far from obvious) and the wider issue of

what constituted an inter se question. Dixon had set out the defining characteristics of inter se law in his first year on the Court, and now, twenty-three years later, produced a model of logical method on the same subject.** He also offered a timely reminder of the inadvisability of entrusting inter se questions to the Privy Council, stating that a certificate covering the entire question inter se would throw open in the Privy Council constitutional questions which might be decided on grounds of great legal and practical consequence. They are essentially matters the product of federalism and fall within the principle or policy animating

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s. 74, namely, that questions characteristic of federalism should prima facie be decided finally in this Court, habituated as it is to the conceptions and considerations peculiar to Federal systems and appearing strange and exotic to those who have enjoyed only a unitary form of government.”

A certificate was refused. In late August Alan Watt visited ‘Yallambee’, having recently travelled with Casey to Indonesia, Singapore, French Indo-China, Japan, Korea and the Philippines. He had found the French fight against insurgency ‘impressive’ but Indonesia and Thailand were ‘without resistance’. Somebody should be posted to represent Australia ‘& build up our influence-—why not himself? ‘I advised him to remain Secretary’, Dixon noted wryly.” Ivor Greenwood, Dixon’s associate, was turning political too, having to be repri-

manded for campaigning on the referendum with a group of Young Liberals

who were urging a ‘No’ vote, and getting himself quoted in the press. That compromised Dixon and the Court.‘! It was also being suggested that

Dixon get back into international politics. The American Consul-General, Henry E. Stebbins, asked him in late October, ‘Whatever happened to that

proposal to appoint you Governor of the Free City of Trieste?’ ‘I’ve never heard of it’, Dixon replied, but the Consul-General insisted that when he

had been First Secretary at the American Embassy in London (he left the post during 1950) the proposal had been made and discussed.*?

Within Australia Dixon was still considered a source of foreign policy advice. In November, for example, he was consulted by Watt who wanted his views on several matters: the ‘conflicting claims’ to priority in Australia’s

defence thinking of, on the one hand, British Middle East Command and

NATO,

and on the other, the new ANZUS

Treaty and ‘Asian dangers’;

Britain’s attitude to ANZUS (they wished to be represented at its regular meetings); whether Australia should join Middle East Command; and other

foreign policy issues. The discussion took up ‘a great part of the afternoon’,

Dixon

noted. The Secretary of the Department of Defence, Sir Frederick

Shedden, consulted him on similar topics three months later.*? Through these years Dixon was subscribing to the airmail editions of the London Times weekly, the Manchester Guardian and the Economist.

In early 1952 Casey was trying to persuade him to revisit the Indian

subcontinent because, as Dixon

reported it, ‘I am the only one in whom

Nehru would have confidence. I objected & he sd that he had “told them” (?) I would resist like hell!” Alice was upset when informed, but Dixon ‘Told her I wd not go unless Acheson or some one of that status asked me’. Casey and Watt pursued the matter over dinner on 15 January when Dixon laid

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CHIEF JUSTICE-IN- WAITING:

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down the ground rules: partition was the sole remedy, but the United Nations had returned to the idea of an overall plebiscite and so had made it more difficult; in any case he would not return on behalf of the United Nations; nor would he go to India during summer; and he would not go unless both countries requested him. ‘Then I might consider it.’ Casey offered a ride home and they continued their discussion as they walked around to the car. It was clear to Dixon that the Foreign Minister had no understanding of Kashmir. Driving out through the night-time streets, Casey seemed to be in a dark place of his own. Menzies hated him, he complained,

nothing could be done.

By early March of 1952 there was still no indication of who would replace Latham, due to retire on 7 April. On the 22nd Dixon read in the Melbourne Herald that Menzies had said a new Chief Justice would be announced the following week, ‘from which I deduced that they had offered it or were offering it to some one else’. The next day Latham rang Dixon about the rules of appeal they had been revising—Menzies wanted them completed and signed before Latham resigned. Dixon replied that, while it

did not matter to him, in 1935 he had held up the signing of the appeal rules

on learning that a new Chief Justice was to be appointed. He said he had not

spoken before about his personal concern, but he took it that the Government intended to appoint someone other than himself, and he was concerned

about the choice. Latham replied ‘that he did not think so’. He said he spoke with reserve, but he thought they would appoint Dixon.** Though the press was predicting that Dixon would be the choice, he heard nothing until 2 April when, at 2 p.m. at the Court in Sydney, he took a call from the Prime Minister. As a former pupil, Menzies said, he wanted the privilege of asking Dixon to become Chief Justice. He could not forego the pleasure of asking Dixon himself, though it was really John Spicer’s duty as Attorney-General. There was the problem of appointing another member of the Court. Spicer ‘had ideas’ about himself being appointed with which

Menzies could not agree. Dixon asked had he made his choice, or did he

want Dixon to speak? For the fact was that ‘we had two passengers & we could not carry more’ (he was referring to Webb, whom he thought incompetent, and either McTiernan, whom he also thought incompetent, or

Williams, whom he thought lazy). ‘The work of the Court required the highest ability’, he insisted, adding with typical irony, ‘so high that it should be employed for a superior purpose’. It was the hardest work he had ever tried. Spicer was a good man, but ‘high ability, law & conduct were needed’. Dixon said he ‘had no doubt of the third in his case but education and background counted so much’. The judges had discussed it among them-

selves and there were five: Alan Taylor and William Owen of the New South

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DIXON

Wales Supreme Court, Reginald Sholl and Thomas Smith of the Victorian Supreme Court, and Douglas Menzies QC (a first cousin of the Prime Minis-

ter) of Melbourne. Menzies said he would not appoint Spicer.“

Following Dixon’s appointment, congratulatory letters poured in, including one from Severin Woinarski quoting Horace without a reference. Fullagar supplied the reference on request and a translation: Power which partakes not of wisdom crashes under its own weight; Power which is tempered with wisdom the gods themselves promote and exalt.”

12

CHIEF JUSTICE 1952-1964

DIXON’s TENURE AS Chief Justice was the High Court’s ‘Golden Age’ when, in the view of Lord Denning, it ‘established a reputation which

overtopped even that of the House of Lords’.! Reasons are easy to find.

Dixon led, but not by imposing his will. As Douglas Menzies, who sat with him from 1958, explained: when he was concerned that a decision should go a particular way, his aim was to get his own judgment out first for circulation to other members of the Court. To differ from him was a course always taken with hesitation and never without foreboding. Never, however, did he

attempt to win support for his opinion by arguing with other members of the Court. If his judgment did not convince, then nothing more could or would be done. Nevertheless, he was always willing to talk with other judges about their difficulties and about their judgments . . . Thus wisdom was distilled. It was in this manner that the Court inevitably took on something of the quality of its Chief Justice. When Dixon was Chief Justice, there were with him on the Court at least two other judges of quite remarkable ability. Greatness encouraged greatness and set a high standard for those who could not aspire to greatness. It is small wonder, therefore, that the Court over which Dixon presided gained the world-wide eminence and authority which it did.?

Lord Normand would write from England in 1958, ‘The work of the High Court is, I think, on a higher plane than the work of any Court here or in any

of the Dominions, and demands both a subtlety and a breadth to which very

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DIXON

few judges elsewhere are trained’. James Merralls, Dixon’s associate from 1960 to 1961, puts the quality of the Dixon Court even higher: Possibly there had been no stronger court since the Courts of Common Pleas and King’s Bench in the third quarter of the [nineteenth] century. Under Dixon’s presidency subtle yet perceptible changes occurred in the manner and method of the Court’s proceedings, and his own work provided a touchstone for his colleagues. Though aged sixty-six when he assumed office as Chief Justice, Dixon was at the height of his powers, and his judgments, more concentrated in style than they had been before the war, had a profundity without example since the death of Willes.*

Merralls’s reference to Willes is important. Though Dixon normally distrusted analogies he was fond of the metaphor of the ‘pure, clear stream’ of legal authority epitomised in the work of those judges he most admired, a stream to which his own work was a continuous contribution. Sir James

Willes was his paragon among nineteenth-century common-law judges. Sir

James Parke, Baron Wensleydale, a special pleader whom it has become fashionable to disparage, is often referred to in Dixon’s judgments, and in ‘Concerning Judicial Method’ Dixon went out of his way to redeem Parke’s reputation. Among equity men he especially admired Sir William Milbourne James, Sir James Knight-Bruce and Sir George Turner. Eminent judges in Britain and the United States who recognised the ‘stream’ certainly located Dixon within it. It was not just Felix Frankfurter who held the view that Dixon’s Court was guided by the best common-law judge in the world, a

man (as Frankfurter put it) distinguished in mind and pure in soul.' Dixon

regarded the law as a systematic body of knowledge from which he thought many modern English judges had departed. He often said that communis error facit jus (common error sometimes makes law) was the most pervasive

maxim of the common law. His attitude to precedent was that of a sceptic.

If a case was right, it was right and its value depended on the calibre of the judge or judges who decided it and the quality of its reasoning. If it was

wrong he tended to ignore it or avoid it by subtle means. He valued

knowledge rather than precedent. This is an important point, because he is sometimes criticised as a literalist, which he was not. Dixon’s commission dated from 18 April 1952, though his swearingin came on the 21st, in Sydney. There in the High Court, replying to congratulatory addresses by Commonwealth Attorney-General Spicer and others, he spelled out his attachment to legal reasoning or ‘legalism’, as

opposed to what would later be termed legal activism or ‘creative’ inter-

pretation of the Constitution. Federalism, he noted, ‘means a demarcation of

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powers and this casts upon the court a responsibility of deciding whether legislation is within the boundaries of allotted powers’, but it was not sufficiently recognised that the court’s sole function is to interpret a constitutional description of power or restraint upon power and say whether a given measure falls on one side of a line consequently drawn or the other, and that it has nothing whatever to do with the merits or demerits of the measure. Such a function has led us all I think to believe that close adherence to legal reasoning is the only way to maintain the confidence of all parties in Federal conflicts. It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else. There is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism.®

In the 1980s and early 1990s ‘creative’ interpretation of the Constitution would come briefly into vogue, losing the Court the confidence of large sections of the community, as Dixon here warns it must. He was a legalist (not a literalist) when it came to interpreting the Constitution because he believed that the common law was an ultimate constitutional foundation, and that to the interpretation of the Constitution one properly applied the principles of the common law.’ He commented ironically to Lord Evershed that in the United States ‘they have the Constitution rigid 8& the judges flexible while

in Britain the judges are rigid & the Constitution flexible. Here our judges

are still rigid but so is the Constitution, which perhaps is the worst case of the three politically, though not morally’.® The last phrase is important—the High Court did not exist to serve anyone’s political purposes. Dixon later

regretted having used the phrase ‘strict and complete legalism’ because

(predictably) it was misunderstood. He was using it of specifically constitutional matters and when he made the speech he had in mind criticism of the Court in the Sydney press over the Communist Party Case.”

Dixon’s leadership and example ensured that the tone of the Court

was generally excellent. The judges conducted themselves with a measure of amiability one to another and frequently socialised together in the evenings, not just in clubs and hotels but in their homes with their wives and families, a thing almost unheard of in Latham’s time. In Court their behaviour towards counsel was improved considerably, Dixon insisting on standards of civility and the proper hearing of counsel’s arguments. If those arguments were clearly inadequate they were to be interrupted with helpful suggestions rather than impatient criticism, though human nature ensured that this rule was sometimes honoured in the breach.

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On 11 May, a Sunday, the Prime Minister visited ‘Yallambee’ to discuss the next appointment to the Court. They considered the five possibilities Dixon had mentioned earlier, going over their characters. Did a balance between New South Wales and Victoria matter, Menzies wondered. No, Dixon replied. Menzies thought that Sholl ‘involuted & overlaid a simple case with authorities’, that Douglas Menzies could wait, that Smith was cold and unimaginative. Dixon ‘gave reasons mitigating these criticisms’.

The possibility of McTiernan and Webb (both Labor appointees) becoming diplomats to make way for better talents was discussed, though both would stay, McTiernan until 1976. In the event the position would go to Alan Taylor though Dixon’s preference was for William Owen." In such decisions Dixon thought character of great importance. For example, the following month Spicer and Kenneth Bailey (Commonwealth Solicitor-General) saw him about the appointment of two judges to the Arbitration Court. Spicer and Bailey wanted P. D. Phillips to be one of them. Three weeks earlier Dixon had been listening to Phillips in Marcus Clark & Co. Ltd v Commonwealth,

thinking him ‘prolix voluble & ineffective’, so much so that ‘Kitto seemed

very annoyed with him & perhaps thought I shd have restrained is [his] length & verbosity’.'' When Spicer suggested Phillips for the Arbitration Court Dixon said he had the knowledge and ability but that his egotism and exaltation would ‘frighten me’. Furthermore, Phillips’ divorce and treatment of his wife ‘had changed my attitude to him. It showed he had no integrity

of character’. Incredibly, Spicer then recommended to Menzies that Phillips

be appointed to the High Court," a piece of childish mischief in all likeli-

hood prompted by Dixon’s refusal to entertain Spicer’s own appointment.

From the outset Dixon was determined to prevent anything threatening good procedure. That applied to slackness, for example. In Brisbane during June McTiernan wanted a case adjourned to Sydney because he had booked on Friday morning’s train, could not get on another, and his wife declined to fly. ‘I refused & told him to return by car’. Next day, Thursday, Dixon noticed an obvious attempt by counsel to be very short, and was sure they had been indirectly influenced to enable McTiernan to catch his train. Good procedure could also be undermined by poor health in any of the judges, something into which Dixon discreetly inquired when he had the chance. In late August, for example, in the Melbourne Club, he was talking to John Halliday, Honorary Assistant Physician at Sydney’s Prince Alfred Hospital, and asked him about Williams. Halliday, seemingly breaching patient confidentiality, replied that Williams had clear indications of arterio-

sclerosis, asthma, and an irregularity of the heart. Dixon could treat him as

an invalid or simply let him ‘fulfil his course’. Usually such indications meant a developing deterioration. Dixon said he would see that Halliday’s direc-

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CHIEF JusTICE:

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tions were observed in regard to the work Williams did provided Halliday

kept in touch.'3

At the Law Society dinner in Adelaide in mid-September Barwick again succeeded in getting under Dixon’s skin, proposing the toast of Bar and Bench ‘in terms which threw me off balance. I tried to deal with the offensive

undertones or implications of his speech but did it all badly. I felt tired off

colour & worried at the sense of judicial failure once more’. He talked to Kitto who, like Douglas Menzies, was also concerned. Barwick, Dixon said,

was a declared enemy of the Court and of himself in particular, adding ‘how

I hated being a judge for such reasons’.'* His distaste for his profession is ironic, as this was immediately after the hearing of what is a landmark case in any assessment of Dixon’s greatness, Stapleton v The Queen.’ Terence Stapleton, charged with murdering Police Constable William Condon at Katherine in the Northern Territory, had pleaded temporary insanity but been found guilty of murder. He appealed to the High Court on several grounds including that the verdict was against the weight of evidence, which included a family history of insanity, and that on several points there had been a misdirection by the trial judge. But Dixon in his judgment identified what seemed to him a far more crucial problem in the conduct of the case— in the trial judge’s words, ‘the ordinary presumption . . . that a man intends the natural consequences of his acts’. In questioning this, Dixon was challenging an established notion that would create (in his view) a wholly unacceptable outcome in a future English case, Director of Public Prosecutions v Smith, in which the accused would be found guilty of murder (rather than manslaughter) for accelerating and veering his car to dislodge a policeman holding onto the door, with fatal consequences for the policeman.'*

Dixon considered that

The introduction of the maxim or statement that a man is presumed to intend the reasonable consequences of his act is seldom helpful and always dangerous. For it either does no more than state a self evident proposition of fact or it produces an illegitimate transfer of the burden of proof of a real issue of intent to the person denying the allegation.'”

In late October his advice was sought by Victorian Governor Sir Dallas Brooks who was trying to resolve a constitutional crisis.'* Three political parties shared the green leather seats of the Victorian Legislative Assembly in 1952, and only by the combined votes of two of them could any ministry stand. The Labor Party was the largest, the second-largest being the Liberal and Country Party (LCP—it included men who had defected from the Country Party), the third the Country Party (CP). Yet for over two years it had been the third party that ruled, under Country Party Premier John

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McDonald, with support from Labor. This made the LCP the Opposition. In mid-1952 a split developed in the LCP Opposition, with a small group led by former Premier Thomas T. Hollway breaking away. Thereupon Labor ceased to support McDonald, but the Government still stood because the LCP rump decided to support it out of fear of the LCP being decimated in an election. The Labor leader, John Cain, talked Hollway’s group into backing Labor’s demand for a reform of electoral boundaries so that there would be more city electorates and fewer in the country, thus disadvantaging the Country Party. Hollway swung his group behind Cain to support the measure and then force an election by denying McDonald supply in the Upper House, the Legislative Council. Cain and Hollway together controlled enough votes to do this. As would happen in the federal sphere in 1975, there was an outcry that the Upper House had no right to bring down a government by blocking or rejecting supply.

In the circumstances McDonald asked Sir Dallas Brooks for a dis-

solution of Parliament. Rather than oblige, Brooks consulted with the Labor

and LCP leaders, and also with Hollway as leader of his group. Any election campaign which proceeded without the prior granting of supply would see

civil servants and creditors of the State unpaid for the interim and Brooks wished to avoid that problem. Hollway assured him that if he were commissioned as Premier he could obtain supply in the Legislative Council, and win over another two members in the Assembly to secure passage there of a bill for electoral reform. Accordingly Brooks commissioned Hollway as Premier, but told him that should he fail to secure a majority in the Assembly he could not count on a dissolution. Hollway then formed a ministry of eight taken from both Houses and managed to pass the rejected supply bill through the Council. But within thirty-six hours of being commissioned a vote of no confidence in his government was passed in the Assembly, though he was supported there by Labor. The LCP and CP had joined forces, backing McDonald, now Leader of the Opposition. Hollway now asked the Governor for a dissolution but Brooks put him off, uncertain what to do— he did not wish to act on the advice of Hollway, but nor did he want to act on the advice of the Victorian Chief Justice, Lieutenant-General Sir Edmund Herring, who was also the Lieutenant-Governor. Brooks knew Herring ‘was up to his neck in Liberal politics’.!?

Colonel

Richard Spraggett,

Brooks’ Private Secretary, boasted to

Dixon that he came up with the ‘brilliant idea’ (Brooks’ words to Spraggett) of consulting Dixon as Chief Justice of the High Court.” This would be without precedent in the States sphere,” but would get Herring out of a tight corner. In any case Herring had no idea as to the best course in the extraordinary political circumstances.

Dixon meets with Admiral Chester W. Nimitz, United Nations Plebiscite

Administrator Delegate for Jammu and Kashmir, at United Nations headquarters, Lake Success, New

Dixon,

24 May

with

United

Nations

York,

1 May

Secretary-General

1950.

Trygve

Lie, in London,

1950, before flying to Pakistan and India as United Nations Mediator

Dixon meets the press at Karachi airport, 2 a.m., 27 May en route from London to New Delhi.

&

_

YUICW

1950,

NALIUN

Karachi airport, 17 July 1950—Dixon was the pioneer of shuttle diplomacy. Here he poses with members of his team and others. The two men closest to Dixon’s right are Jesse Gregory (Dixon’s tipstaff) and John Oldham (Australian High Commission in Pakistan). On Dixon’s left are Mr Mustafa (Pakistan, Chief of Protocol), Sylvain Lourié, and Arthur Campbell (Dixon’s principal assistant).

Dixon mediates between Liaquat Ali Khan, Prime Minister of Pakistan (left), and Pandit Jawaharlal Nehru, Prime Minister of India, in New Delhi, 20 July 1950.

New Delhi, 21 July 1950: Dixon enters the Cathedral Church of the Redemption, through a rain storm, for the memorial service for United Nations secretariat members and military observers killed in a plane crash four days earlier.

Jesse Gregory

(Dixon's tipstaff) is on the right in the light suit.

Dinner at Government House, New Delhi, 22 July 1950. Seated, from left to right, facing the camera, are Liaquat Ali Khan (Prime Minister of Pakistan), Indira Gandhi (Nehru’s daughter), Dr Rajendra Prasad (President of India), an unidentified guest and Dixon. With their backs to the camera, from left, are India’s Prime Minister Pandit Jawaharlal Nehru, with one of his ministers, and Mohammad Ismail (Pakistan High Commissioner in India).

At a conference on Government Under Law, Harvard University,

22-24 September 1955. From left: Erwin N. Griswold (Dean, Harvard Law School), Felix Frankfurter (Associate Justice, United States Supreme Court), Patrick Kerwin (Chief Justice of Canada), Earl Warren (Chief Justice of the United States),

A. van de S. Centlivres (Chief Justice, Appellate Division, Supreme Court of South Africa), Dixon, and Sir Raymond

Evershed (Master of the Rolls, England).

Oxford, 25 June 1958: recipients of honorary doctorates from Worcester College

in procession to the Sheldonian Theatre are (beginning second from left) Dmitri Shostakovich, Sir Alan Herbert, Hugh Gaitskell (Leader of the Opposition in Britain), Dixon,

British Prime

Minister Harold

Macmillan

and

Lord

Beveridge.

Professor A. W. K. Tiselius and Francis Poulenc are obscured.

Essendon Airport, Melbourne, 2 February 1960. Dixon and R. G. Casey welcome Dean Acheson (left), former United States Secretary of State.

Prime Minister Sir Robert Menzies with Dixon after unveiling a portrait of the

Chief Justice by A. D. Colquhoun at the opening of Owen Dixon Chambers, Melbourne, 16 October 1961.

‘To town: dressed in lace &c & went to G H [Government House] where I swore

in Sir Dallas Brooks as Administrator of the Commonwealth’ (Dixon’s diary entry for 5 June 1962). On the floor beside Dixon are the white gloves and tricorn hat,

still used on formal occasions at that time.

Dixon with his High Court on the day of his retirement, 13 April 1964. From left: Justices Windeyer, Taylor, McTiernan, Dixon, Kitto, Menzies and Owen

The study at ‘Yallambee’ soon after Dixon’s death in 1972. The alcove where he wrote most of his judgments is to the right at the end.

The alcove of the study at ‘Yallambee’ after Dixon’s death, late 1972. Some of the books have been removed.

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After sitting in Court on the morning of 30 October Dixon had lunched at the Australian Club, sat through the afternoon, then gone into conference

with the other judges. Spraggett telephoned at 6.35 p.m. Would Dixon see

the Governor about the constitutional crisis? Dixon said he would come over directly. When he arrived at Government House he found Herring there too,

and Spraggett. Brooks told Dixon he wanted his opinion, outlining the facts chronologically. He said he had warned Hollway that unless the latter could command a majority in the Lower House he would not necessarily give him

a dissolution. Yet Hollway, defeated in a confidence vote, was now asking,

as leader of the fourth and smallest ‘party’ (faction, rather), for a dissolution which would enable him to go to the people with the status of Premier.

Hollway had told Brooks that the Governor ought to follow the advice of his ministers—of Hollway. But the Governor reasoned that he had not given McDonald a dissolution so why should he now give Hollway one when he

had not performed what he had said he could? Brooks had no idea what to do. John Cain, the Labor leader, had told him ‘the House was exhausted and must be dissolved’. The only question was to whom as Premier the dis-

solution should be given. Cain had said he would not accept a commission,

no doubt reasoning that his party would garner more seats by going to the electorate without being in government. Dixon then told Brooks that, on the face of it, ‘the proper course was to commission Cain & give him a dissolution. For his was the largest party & had the best chance of being returned with a majority. I asked the Gov. whether he was sure Cain would not accept office with a dissolution. He said he was satisfied he did not want it’. Dixon thought about that and provided a solution: I said that I felt sure Hollway should not go to the country as Premier because (1) he could not be returned (2) his project had failed. As McDonald now had a majority in the lower house & had a vote of confidence there he should be sent for. He was leader of the opposition. The doctrine that a Gov must over these matters be guided by his ministers could not be applied in State governments where such situations arise. He asked if I would consent to his saying that he had consulted us [Dixon and Herring] on the constitutional law & practice. I agreed.

The following day, Friday 31 October, Brooks ‘refused Hollway’s request for a dissolution, called for his resignation which he gave “unwillingly” &

commissioned McDonald & granted him a dissolution’.?? Hollway com-

plained bitterly in the press about breach of convention, though he made no objection to Dixon’s having been consulted in the matter (which the press had made public knowledge).

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The next day was Derby Day and Dixon was at the course with Alice, Anne, Ted and Ted’s wife Elizabeth. ‘I met the Gov. & Lady Brooks there’, he noted, ‘She sd something about the 2 most unpopular men on the course & added Thank God for you or something like it.’* Dixon subsequently told Lord Simonds: I thought it was a very difficult situation. It could only occur in the case of a small legislative body. I could not see how the Governor could avoid judgment of his own. It would have been quite unreal as well as unjust to shelter under the theory that Hollway’s advice must be followed. Fortunately I hardly knew any of the political personages concerned & had never taken any interest in their politics.*5

Dixon believed that English service officers who had become State

governors might speak to him if they were troubled by a constitutional crisis, given that they were ignorant of constitutional law and conventions and that there was no one apart from their premiers to whom they could turn. He told some of them this—it was simply an offer to help them in times of trouble. He would not have dreamt of advising a governor who had a legal background.”¢ A scrupulous academic lawyer concerned to downplay the Crown’s reserve powers might consider Dixon’s offer of such advice a breach of propriety,?” but for Dixon, a commanding judicial figure with an undeniable sense of propriety, the circumstances outweighed any niceties if

such existed.

Menzies had invited him up to Canberra for a talk on 10 November and Dixon took the opportunity while there to see Solicitor-General Bailey about reforming the Court’s administration after years of drift. His aim was to improve the operations of the reporting branch, do something about the bad state of the records, and reduce the work load—against Dixon’s preference, soon to change, the Court was now delivering more joint majority and fewer seriatim (or series of individual) judgments, one factor behind his greater use of conferences.?® Menzies wanted to invite Dixon and his wife to attend the coronation of Elizabeth II, which would be held on 2 June 1953 —the Government would cover the airfares. Dixon thought it wrong that Alice’s fares be paid but Menzies disagreed. They also discussed the bad service the Privy Council was performing. Dixon was concerned by the Board’s failure to inform itself of the constitutional complexities of the Australian cases it heard, its confusing judgments (as in the Bank Nationalisation Case), and its granting of leave to appeal in trivial cases. Menzies said he would raise the matter at the Inns of Court when he was in London and discuss it with Simonds, Lord Chancellor. Dixon would correspond with Simonds on this in 1953.?°

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Christmas was difficult. He had made the English Speaking Union a present of the books left to him by Sir John Higgins, failing to consult his

wife. To Dixon it was a matter of no importance, he could do without them

and in the ESU’s Library they would find readers. Sentiment was not an issue. ‘It seemed to spoil Christmas’, he noted, ‘& brought back a fit of depression’ which deepened over the following two days, distracting him

from the work he was doing on Hughes & Vale Pty Ltd v New South Wales,

a significant section 92 case.>° The trucking company Hughes & Vale was challenging the validity of a New South Wales law imposing a licensing fee for vehicles using the State’s roads. The law’s purpose was the protection of the State’s railways in

the carrying of wool from country centres to Sydney, but the fee was also

applied to road haulage between New South Wales and other States and so could be challenged under the freedom of interstate commerce guaranteed

by section 92 of the Constitution. The judgments were delivered on 16 April 1953 and the interesting aspect of Dixon’s is that while he thought the

legislation invalid he nevertheless felt bound as Chief Justice to follow McTiernan, Williams and Webb in upholding that legislation (paradoxically against the Dixonian dissents of Fullagar, Kitto and Taylor) on the basis of a principle he thought very important, stare decisis: there was a string of authority constituted by the Latham Court’s minimalist reading of section 92 (against Dixon’s dissents) in the Transport cases of the 1930s and most recently in another Hughes & Vale case, McCarter v Brodie,*' and it could not simply be ignored. However, Hughes & Vale would subsequently take the case to the Privy Council where the High Court decision would be reversed, as most of its members hoped it would be, in a judgment exten-

sively quoting from Dixon’s dissenting judgment in McCarter v Brodie,

thereby destroying the value of the 1930s Transport cases as precedents. This would mean that in the next case brought before the High Court by Hughes & Vale the entire Court could and would finally endorse Dixon’s interpretation of section 92 as applicable to road transport and the freedom

of the individual trader.** The States, naturally concerned about their

diminished

legislative power to control transport, gave way as little as

possible, and a modus vivendi of sorts was soon reached, the Court con-

ceding in the second Armstrong Case (1957), for example, that taxes on interstate road hauliers could reasonably be related to the costs of maintaining a State’s roads and not be inconsistent with section 92.33 In early May the Dixons left for the coronation, attending en route the ninetieth birthday party of Sir George Rich in Sydney. Dixon made a generous speech, to which Rich (remarried since 1950 and remarkably well) was too overcome to respond, though he was otherwise voluble enough:

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‘Australians should work’, he was insisting. As Dixon

reported to Anne,

‘The idea of Sir George preaching the doctrine of work struck Mum as particularly amusing’.*4 Their route took them via the United States and for the intercontinental legs they had sleeping berths. In New York they stayed at the Drake, in a richer America than Alice had known:

The slogan here should be ‘too much’. Too much abundance of every thing, large vulgar cars, jewels, clothes & particularly food—the waste is terrible. There must be the reverse side too. We noticed two incidents over wire baskets for refuse in the streets. In one was a grey overcoat like Mr Curtin wore. At another was a poorly dressed woman going through the papers for scraps of food.

From the Museum of Modern Art I came away feeling very sad and feeling too that . . . those who fashioned the ugly things & those who pretended to admire them were missing so much beauty in nature & the world . . . | had such a surfeit of sights & people and food I could not stand any more so back to the Hotel. I have written this while Owen watched ball games, boxing etc on T.V. An ambulance is screaming past. The noise outside never ceases day or night.°5

In London they stayed at the Rubens and were invited to significant events. At Lord Chancellor Simonds’ on 13 May they dined with Lord and

Lady Reid, and Dixon was lunched by Lord Evershed at Lincoln’s Inn on

the 15th with the ‘Benchers’, sitting later as a guest in the Court of Appeal with Lord Justice Denning. Dixon made a suggestion about the case they were hearing and, according to Denning, after he left they ‘drifted the counsel on to the point & decided the case on it’.°* Denning was aware of Dixon’s development of estoppel in Australia, and having been instrumental in developing that field in England was conscious of the need to ‘advance on the same broad front—and learn from each other’.*’” But Denning either misunderstood or intentionally misused Dixon’s ideas, and ‘Concerning Judicial

Method’ would be in great part Dixon’s reply to him. Lord Tucker invited

Dixon to help his Committee on New Trials in Criminal Cases by explaining how the exercise of this power worked in Australia.°* All the Law Lords were respectful and hospitable. Lord Jowitt had the Dixons to lunch at the House of Lords on 19 May and on the following days to his home near Bury St Edmunds where the talk was ‘extremely free’, as Dixon wrote to Anne, both Jowitt and his wife being ‘characters’. Jowitt had ‘a political past

which has rather distracted from the regard in which otherwise he might be

held’ (he had switched parties), but ‘he has some good points’.*? There were

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a lot of laughs. The conversation turned at one point to the Duchess of Windsor (for whom Edward VIII had abdicated): as Lord Chancellor, Jowitt ‘had found it necessary to ask Q Mary not to call the Duchess a whore, for fear of a libel or slander action’. Her reply: ‘Well, is not she one?”*° On 28 May Dixon was sworn of the Privy Council at Buckingham

Palace where Elizabeth II talked to him about Kashmir and the high feelings

in India and Pakistan. Afterwards Lord Halifax entertained the Dixons to lunch at his flat—just one of a number of acquaintances renewed with people the Dixons had known in Washington, including General George Marshall, who was at the Lord President’s garden party at Hatfield House on 31 May, telling David Bowes-Lyon he considered Dixon ‘the most perceptive and understanding of the representatives in the war’. The Bowes-Lyons, who had been close to the Dixons in Washington, had them as guests in mid-June at their country house, birthplace of Elizabeth Bowes-Lyon, the Queen Mother. A more recent acquaintance, India’s Prime Minister Pandit Nehru, was in

England for the coronation, and at a reception at the Palace on 1 June, as Dixon noted, Nehru ‘came up to me and said that of all the people who had dealt with the Kashmir question I was the only man who came to grips with it’. At the Abbey for the coronation the following day the Dixons sat in the South Choir gallery (with General Marshall and Sir Winston Churchill opposite) where they were able to witness almost the entire ceremony. Over

the following days and weeks plenty of invitations came their way. In early

June they had a weekend at Lord Simonds’ near Winchester, and Lord Evershed entertained them at his farm near King’s Lynn later that month."! Dixon’s determination to do everything he could to keep Australia’s relations with Britain close, at a time when the British had become casual in

the matter, emerged during a meeting with leading figures of the London section of the English Speaking Union at the offices of Sir Clive Baillieu, the Deputy-Chairman. As Dixon noted, The question which most concerned them was the Australian American Association which they thought should be fused in Melbourne as in London. They described the strength & support they got from this & also from corporate membership. I said I could see no way of effecting a fusion & the ESU would not give up its identity in A/ia nor its connexion with London—I spoke of the tendency of the A-A-A to detach A/ian

sentiment from Britain.”

For

Dixon

there

were

pragmatic

concerns

too,

particularly

Australia’s

vested interest in a long-term British presence in the region at a time when Britain was planning to decolonise in Malaya. Also in the same vein was his view that Australia should distance itself from South Africa, and he told Sir

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Edwin McCarthy, Australia’s Deputy High Commissioner, that Menzies’ imminent trip to South Africa ‘was very unwise’ from the Australian point of view, though according to McCarthy it was ‘to help the home Govt’. They flew back through the United States, taking the train from New York up to Massachusetts on 21 July to see the Frankfurters near Heath where Dixon recorded the senior jurist’s latest opinions: Chief Justice Vinson was ‘no good’, showing neither legal nor administrative capacity and unable to ‘allocate the writing of judgments appropriately or at the proper time’. Mr Justice Douglas was an ‘unreliable intriguer’ and ‘temperamental’ to boot; Mr Justice Black ‘had the best natural legal mind’ but was ‘quite unequipped’ and ‘full of prejudice’; Mr Justice Jackson was ‘quite uneducated in the same

way’, though Frankfurter said he relied on him. Within the Eisenhower

administration Foster Dulles was plain ‘stupid’, and ‘a general weakening had taken place in the anti-communist front under the new regime, owing to the loss of Dean Acheson’. In Washington three days later Dixon called on Chief Justice Vinson and saw Acheson, the talk ranging over the field of

foreign relations. Myron Cowen, former American Ambassador to Aus-

tralia, took Dixon to lunch at the Senate on the 25th with the Foreign Relations Committee, chaired by Senator Alexander Wiley. Dixon was questioned on Kashmir, and Wiley asked about Australia’s attitude to China and the United Nations. By way of responding Dixon brought New Guinea and Indonesia into the discussion. Wiley was so impressed he wanted Dixon to

appear before the Committee.

‘I’m Chief Justice of Australia’,

Dixon

laughed, ‘do you want me to lose my job?’ But his interest in international politics was serious and abiding, and during Vice President Richard Nixon’s visit to Australia later that year Dixon would attend parties in his honour and take the opportunity to talk with him.”

After returning to Australia he settled back into his work but was still finding time for other activities, diverse if relatively undemanding ones, including sitting on the Felton Committee and the Commonwealth (Harkness) Fund (disbursing grants for travel and study in the United States),‘‘

and presiding over the Royal Melbourne Philharmonic Society, the English

Speaking Union and the Australian Institute of International Affairs. Julian Huxley spoke to the latter group in October, Dixon dining him on the 14th but thinking his Dyason lectures ‘incoherent’, ‘very unscientific & silly’. Dixon’s interest in tertiary education continued strong, and not just the legal side—in January 1954 he was invited to preside at a symposium organised by the Australian National Research Council in Canberra entitled Univer-

sity Education in a Scientific Civilization. He delivered a masterful opening address:

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Is it necessary to go outside science to find a liberal education? And if so where and how? The universities are faced with the problem of overstraining their resources. Their responsibilities in the propagation of scientific knowledge are tremendous. But their traditional responsibility remains

of producing men whose minds have become better instruments of thought, whose intellectual interests have been stimulated and will often

be sustained, and above all who can combine knowledge with reason and both with experience so as to meet the problems of actual life.‘”

The symposium passed a resolution calling for an investigative report into tertiary education—the seed of remarkable changes and growth in the sector.

The following month Queen Elizabeth visited Australia and Dixon as

Chief Justice was involved in the formalities. He was impressed by her speeches and presence, later writing to her Private Secretary, Michael Adeane, that ‘the enormous influence these visits exert upon the people of various countries must be reflected in the policies pursued by their political

leaders’.** But he was not entirely happy with the ceremony at Melbourne’s

Shrine of Remembrance where the forecourt was dedicated as a memorial of World War II. ‘It was a religious service in effect’, he noted, ‘conducted however by the Governor. The Queen then dedicated it & by a press button lit a “Flame of Remembrance”. The odd thing was that the Queen was gaily dressed in light green. The Duke wore a sombre sack suit, but the staff were rakishly turned out. Imagine them going thus to the Cenotaph in White Hall’. For his judicial achievements, in the Queen’s Birthday honours list that June Dixon would be awarded a GCMG. In March he was elected President of the Melbourne Club for a oneyear term but did not always get his way, finding himself in a minority of one, for instance, over the appointment of a new secretary. In July ‘I missed a meeting of the Committee . . . summoned on short notice and without any prior consultation with me. On whom does the responsibility lie?’°° On 3 April 1954 Vladimir Petrov defected from the Soviet Embassy where he had been Third Secretary in charge of espionage activities. In the sensational circumstances of the case the Government resolved to appoint a Royal Commission to inquire into espionage in Australia. Menzies telephoned on the 15th asking for a High Court judge and Dixon told him what he had told him in 1935: judges should stay out of controversial matters other than those unavoidably arising in the performance of judicial duty,

Royal Commissions generally involved political questions, the Royal Com-

missioner deciding what political course should be taken, and so on. Menzies ‘acquiesced’ but wanted to discuss the whole matter in any case, so Dixon

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saw him in Canberra on the 17th. The details are not in the diary—most unusual. However, Dixon told at least one of his associates that Menzies

had said it was believed that Petrov had brought with him significant information, but that because of the shortage of translators its substance could not be ascertained before the election; and that Menzies wished to establish a Royal Commission before the election that would be proof against a change of government.*' On the 21st Menzies telephoned to say Cabinet wanted Dixon because it was of high international and domestic consequence, he was known in Washington and London and ‘would carry weight’. Dixon

discussed it with the other judges: McTiernan and Webb thought he should

accept, but the best judges, Fullagar and Kitto, were strongly opposed, and Williams and Taylor were opposed too. That settled it.*? Mr Justice Owen from the New South Wales Supreme Court was appointed Chairman of the Petrov Commission (perhaps on Dixon’s recommendation—he regarded him as a man of utter integrity), to be assisted by two other Commissioners. Dixon would discuss their work with Owen on several occasions, and with Colonel Charles Spry, head of the Australian

Security Service—it was a matter of national importance on which he believed he had a civic duty to remain informed. In July Fullagar was considering an application for an interim injunction to stop the Commissioners proceeding in reference to Rupert Lockwood. The Royal Commission Act 1954 contemplated only one Commissioner, and the Acts Interpretation Act 1901 could not make the singular plural. Fullagar decided that the previous Act, the Royal Commission Act 1902, allowing the appointment of more than one, was sufficiently saved by section 15a of the new Act, enabling

three to be appointed. Dixon was unpersuaded, telling Menzies to pass a

new Act and announce it immediately while Fullagar’s judgment was in his favour, ‘which he immediately did’.* In Melbourne a few days later Dixon examined bullet holes in one of the Court’s windows: ‘small-bore, high up’.** It was thought the shots were probably connected with the Petrov Commission and the matter was investigated by the Royal Commission security. The triumph of Dixon’s logical interpretation of freedom of interstate trade, commerce and intercourse (section 92) was encouraging litigants to test its limits, threatening piecemeal erosion of State and Commonwealth powers, and he now found himself having to qualify his own doctrine, but always on an objective, conceptual, logical basis rather than on shiftier ‘pragmatic’ and political grounds. Grannall v Marrickville Margarine Pty

Ltd involved a challenge by Marrickville to a New South Wales licensing

and quota system designed to protect the dairying industry. Marrickville

reasoned that as it sold much of its product interstate it could not be subject

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to the legislation. The Court’s joint judgment conceptually distinguished, perhaps somewhat artificially, between trade and the manufacture preceding it, upholding the State legislation.*> Another example was Hospital Provident Fund Pty Ltd v Victoria. The fund, incorporated in Victoria, had been denied registration there. As it had interstate offices and its business included contracts with contributors interstate it invoked section 92. In his judgment Dixon decided that the interstate aspects were merely incidentals, distinguishing the case from the 1948 Bank Nationalisation Case.*° In Sydney at the end of August he attended a dinner for Mr Justice Douglas of the United States Supreme Court. Asked about Senator Joseph McCarthy, Douglas responded by saying he had violated constitutional and legal conceptions of freedom and it was dreadful that Eisenhower had authorised him to see income tax returns—he had probably seen Eisenhower's. This evoked a remonstrance from the American Ambassador but tallied with Dixon’s view of McCarthy. He certainly thought the Petrov Commission appropriate in the circumstances, however. In early September he saw Evatt, now Leader of the federal Opposition, in the street, four days before Evatt was excluded from the Commission as a defence counsel on the grounds of his public statements on the Petrovs’ credibility (Evatt really believed it was all a plot against himself). He said he wished Dixon were handling the inquiry. Dixon replied that the more he read of it the more certain he was that he had been right to refuse.*” Year by year Dixon was becoming more critical of the Privy Council. Nothing would induce its members to inform themselves of the complex constitutional contexts of the Australian cases they heard. The barrister Douglas Menzies discussed this problem with Dixon for two hours in early October of 1954. Not only would the Law Lords ‘do no work behind the scenes’, Menzies

insisted, they treated it ‘as bad form to do so’, relying

instead on ‘facility of expression & finality ofa decision’.** Representations made in 1953 to the Lord Chancellor by R.G. Menzies on Dixon’s behalf had changed nothing, and Dixon now began to think of other expedients. Section 74 of the Constitution limited appeals to the Privy Council on inter se matters by requiring the High Court to certify that the case should be decided in London. In other constitutional cases (and non-constitutional

cases) the Privy Council itself could grant leave to appeal. But there was also

a provision (of which nobody had taken much notice) in section 74 that ‘The

Parliament may make laws limiting the matters in which such leave may be asked’. This could be used to stop appeals in all constitutional cases or

indeed appeals from the High Court altogether. Several months later Dixon

would write to R. G. Menzies:

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I have seen two more transcripts of arguments. I do not think they ‘have a clue’. In these cases they rightly refused leave but for preposterous reasons. I have become increasingly impressed with the wisdom of the idea that the Australian Parliament should exercise the power given by sec 74 before worse befalls and place in the hands of the High Court the primary discretion in sending cases to London. After our conversation I

experimented with the kind of provision which would amount to an exercise of the power under sec 74 as distinguished from the Statute of Westminster, and I drafted the enclosed section. I think it is the only thing which will prevent the total abolition of the appeal.*?

Nothing would come of this. In 1956 he would give his criticism of the Privy Council public voice in a judgment: section 74, he would say, recognised

that

federalism is a form of government the nature of which is seldom adequately understood in all its bearings by those whose fortune it is to live under a unitary system. The problems of federalism and the considerations governing their solution assume a different aspect to those whose lives are spent under the operation of a federal Constitution, particularly if by education, practice and study they have been brought to think about the constitutional conceptions and modes of reasoning which belong to federalism as commonplace and familiar ideas. A unitary system presents no analogies and indeed, on the contrary, it forms a background against which many of the conceptions and distinctions inherent in federalism must strike the mind as strange and exotic refinements. It is also doubtless true that those responsible for the provision which took the shape of s. 74 hoped that an Australian court might find it possible to work out by judicial decision in the course of interpreting the Constitution a body of constitutional law which would give strength and stability to the system.©

There is a fund of sardonic resignation there. Frankfurter would write, ‘you

afforded me delicious pleasure in your remarks on federalism, in O’Sullivan

v Noarlunga Meat Ltd, for 1 could not help but read what you wrote as

designed for much needed instruction to the Privy Council’, and he would

quote it with mischievous ‘I wrote very deliberately, on express notice of what In the New Year he

delight to a British audience. Dixon would reply, not to instruct the Privy Council, but to put them we feel here’.*' sat for his portrait by Archibald Colquhoun—a

formal picture for the Court. Colquhoun disapproved of Ivor Hele’s portrait of Menzies—an attempt to idealise, with women’s hands. It was always an

error, he believed, to paint in larger dimensions than reality. (In early 1960

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Colquhoun would execute a second portrait of Dixon, full-length, for the new Owen Dixon Chambers in Melbourne.)*

A few days later the Dixons flew to Canberra for the investiture of Field Marshall Sir William Slim as Governor-General. They stayed at Government House, where Slim offered his views on Churchill (a hater of order and regularity, an improviser, unorthodox in method, taking up with odd

people, indulging in anecdote and reminiscence—he should resign) and

Wavell (finest soldier of the war, fighting without arms and supplies, a great man). They took a stroll through the gardens. Yes, Casey was likeable, Slim agreed, but a country should not articulate international policies or plans beyond its strength and his idea of sending a battalion to Saigon was ridiculous. Menzies, he thought, hated Evatt because ‘he alone had brains approximating to his own’, but Evatt was too emotional—after forty minutes with the Queen he ‘was in tears’. As for himself, he was used to command and could not adjust to his new position. And could he do any good? It was financially unattractive and he had to provide for his wife. But he did believe a Governor was ‘the last & final guardian’ of the subject’s liberties. Back in Melbourne there was a letter from Dean Acheson, who had

had more than a little to do with Yale’s offer to award Dixon its Henry E. Howland Memorial Prize that coming September (in the terms of the foundation, ‘in recognition of some achievement of marked distinction in the field of literature or fine arts or the science of government’). ‘We lay great store by this prize’, Acheson wrote, and regard it as the highest tribute that we have to offer . . . I have obtained the Secretary’s permission to write you in advance of his official letter so that you might have a day or two for us in New Haven before your schedule becomes too crowded, and to add the urgings of old friends to the invitation of the University. I say ‘old friends’ because Thold the proxy of Wilmarth Lewis also. Felix and I talk often of you on our morning walks, and in this way I hear both of your judicial doings and of some of your comments on the current scene. Felix is well and as lusty as ever. 1 am happy to say that my own family are blooming. Tt will be a great joy to see you and Lady Dixon next autumn and resume our long interrupted talk. Alice joins me in the warmest greetings and good wishes to you both.”

Dixon’s response is characteristic: What have I ever done to merit a prize from Yale? What have I to say, that any one would regard as an ex post facto justification? I have gone on for years in this remote island continent as a regular, if somewhat

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involuntary, contributor to the pages of the Commonwealth Law Reports on the most technical, and often pedestrian, legal questions, feeling for the most part glad that, as I supposed, the readers of our judgments were limited to this country. My incursions into the field of international affairs you were kind enough to praise, but I know that they were amateurish and that in any case they could effect little or nothing . . . Alice and I send our warmest regards to you and your wife and look forward with the highest anticipation to seeing you.®*

In subsequent letters they discussed what Dixon might talk about in his address. Acheson suggested the value of a classical education in a scien-

tific age, since ‘even in its most theoretical form science raises ideas with which man has grappled before’, and only to one ignorant of the classics

would ‘it seem so strange, and indeed frightening, to discover, as Walter Lippman has, that at bottom the salvation of popular government rests

upon virtue’. Dixon would stick to what he knew best, in what many would consider his finest address—‘Concerning Judicial Method’.

On the morning of 25 February 1955 the barrister P. D. Phillips came

to see him in chambers. It was personal—he did not wish to be embarrassing, but years ago Dixon had encouraged him and he felt there had been a change. He recalled the difficulty over McCarter v Brodie. ‘That’s past’, Dixon told him. Phillips thought his divorce had made a difference. ‘I didn’t like it’, Dixon admitted, ‘it’s not the sort of thing I like, but it’s a domestic

matter. We get older and no doubt appear differently’. ‘It’s Kitto’, Phillips

offered. ‘IfI might speak plainly, I’ve heard Kitto will not sit in cases I’m to argue.” ‘That’s not so’, Dixon replied, pointing out that Kitto had been brought up in a different school—John Peden, who ran the Sydney school, was totally unlike Harrison Moore. The men he turned out think differently. You argue in the abstract. Kitto is analytical and keen. You see things in a picture, you look at a conception as it appears to affect the surrounding conceptions in which it operates, not analytically. You have to understand that it’s entirely an intellectual problem, not a personal one. You have the ability to solve it. Might I suggest you begin with the minor premise instead of the major? —argue from the practical operation.*”

Phillips thought Dixon

may

not have realised what

tensions the Bank

Nationalisation Case had set up. ‘It was probably the personality of Evatt’, Dixon volunteered, ‘whose great fault is that he generates hostile feeling—

perhaps it’s biological’. Phillips seemed satisfied. ‘You’ve relieved my apprehensions’, he said. ‘You shouldn’t worry’, Dixon told him, ‘but think out

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the remedy, which you can, I feel sure, supply. All counsel feel some kind of difficulty over Courts’. But Phillips confused well-meant advice with personal regard. He waited two months, then invited the Dixons to dinner: ‘Phillips called at Chs & asked Alice & me on Sunday evg: consulted Alice on my return & refused’. On 2 April, a Saturday, Dixon’s advice was again sought by the Governor of Victoria, Sir Dallas Brooks. Premier Cain, Brooks pointed out,

had supply only to 30 June. It had previously been announced that Parliament would be summoned on 19 April, but now Cain’s Labor Government had suffered a split, with Patrick Coleman and William Barry leading a dissident group who announced they would not vote for supply when Parliament reassembled.

It was also clear that as soon as Parliament met, the

Government would face a no-confidence motion and certain defeat on the floor of the House. In these circumstances Cain had told Brooks that, as he had supply until the end of June, he now wished to carry on without calling

Parliament together. Then, further down the track, he would ask for a dis-

solution. The obvious problem there, as anyone could see, was held on until the end of June, as the Argus and other newspapers lating he would, then sought a dissolution, the civil service would during the period that followed. What would Dixon advise?

that night Dixon made a note of the advice he gave:

that if Cain were specunot be paid In his diary

I said the Gov. shd concern himself only in seeing that there was [no]

interval in wh the services of Govt were not paid. The Gov suggested he might properly tell Cain that he must get supply within a period & tell Parl he [the Governor] had requested him to obtain it. I suggested that he shd say that he wd not dissolve unless supply were provided or unless the possibility of some Govt obtaining it were exhausted.

No doubt Brooks then tendered this advice to his Premier, for on Monday

night, 4 April, Cabinet decided to call both Houses together on 19 April and

face the inevitable vote of no confidence. Victorians went to the polls on

28 May and the long Bolte era began. Sir Dallas and Lady Brooks were by now Dixon’s ardent too ardent, for on 22 October they would embarrass him at a ebration in the Town Hall: ‘The Governor & Lady Brooks were shook hands & greeted us too enthusiastically & spoke too long

admirers— Legacy celthere. They at the inter-

val in the Mayors room . . . Legacy wished to present people &c.’”? Dixon

was concerned to restrict his relations with people in the executive branch of government to a cordially formal basis, at least in public. This was admittedly difficult in the case of the Prime Minister as their longstanding

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friendship was general knowledge. Dixon was upset when Sir Robert and Dame Pattie Menzies asked him to propose the health at their daughter Heather’s wedding. ‘I felt that it was very unwise but did not know how to refuse.’”' As he grew older his sense of propriety became if anything more

acute—he now doubted the propriety of his having undertaken extra-

judicial war work.” At the end of August he and his wife left for the United States and Yale’s Howland Prize ceremony, passing through New York en route and taking in the Museum of Modern Art (‘saw Van Gogh’s self portrait & other of his

paintings, missing however their merit’), the Metropolitan (‘looked at some

Rembrandts’), and the grandiose United Nations building (‘which I found a

disturbing sight—all tragically unreal & absurd & obviously inefficient’). Arthur Campbell, Dixon’s assistant in Kashmir, was still working for the

United Nations. Alice asked him, ‘How can anyone possibly think in that

ghastly Assembly Room with the organ-pipe-looking affairs and the huge

murals and the plaques like unfilled jam tarts?’ His answer: ‘Well, has there

been any evidence that any thinking has been done there?’ Dixon, as Alice noticed, ‘was quite angry at the futility of the whole set up & how dangerous it was in world affairs’. It ruined his afternoon, though in the streets and up at the Park there were amusements to compensate: ‘We saw a poor spaniel shorn like a poodle with only the fur on its ears & head & the feathers on its legs. We saw an elderly woman in white tight pants of a striped & floral material leading a rat-like dog on a leash. We saw the infants of millionaires 8& their trained English nannies in white uniforms wheeling their prams. One had a British crown on the side.”

Stewart Jamieson, the Australian Consul-General, gave them a dinner,

Dixon sitting with former presidential candidate Thomas Dewey, quotable

on Mr Justice Douglas of the Supreme Court, a man ‘whose heart bleeds for everybody & who regards the Constitution as plastic to wrap around him’.’5 They took the train to Washington, visiting the Embassy, the Corcoran and the Mellon Galleries, and Felix Frankfurter. Dixon was invited onto the

bench of the District of Columbia Court of Appeals as its honoured guest. A

few days later, back in New York, he was dined by Dewey as guest of honour amidst a score of eminent judges and lawyers.Ӣ

Then on 18 September they were driven by Consulate car to Farming-

ton, Connecticut, to stay with Wilmarth Lewis who showed them through

his vast collection of letters, books and pictures relating to Horace Walpole,

and through the complex recording and indexing system for the Walpole

correspondence he was editing for Yale, a monumental work that would

run to forty-eight volumes. On the 19th they all drove down to New Haven

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for the presentation of the Henry E. Howland Memorial Prize and Dixon’s address. ‘It was not a very impressive audience’, Alice noted, ‘students in white shirts and trousers, a few official people, University tutors and lecturers. Behind me sat old Mrs Howland & two of her sons’. It was a hot,

humid afternoon (hurricanes had ravaged the region) and the noise of traffic

was loud about the hall.”

The paper he delivered, ‘Concerning Judicial Method’,’® is a key document in any assessment of his greatness, which it reflects in spirit and substance. It begins with unfeigned humility. Of the Prize’s recipients Many of them devoted their lives to noble pursuits. I can make no such claim. The life I have led has been forensic and judicial, interspersed with sallies into wartime administration and diplomacy. If what I have written contributes to my chosen field, the law, it must be in the pages of the law reports or perhaps some legal periodical. As for what I have done, it is not for me to speak. But I had regarded it as having no importance that did not pass with the moment.

His theme is the common law, its traditions present, perils precisely located. In the words Maitland, Dixon said, the common law was reflection of the layman’s unanalysed instincts;

and the perils it faces in the of the legal historian Frederic ‘not common sense and the rather . . . strict logic and high

technique, rooted in the Inns of Court, rooted in the Year Books, rooted in

the centuries’. ‘But now’, Dixon pointed out, ‘the signs are many that the strict logic and the high technique of the common law have fallen into disfavour.’ The causes are profound: It is not an age in which men would respond to a system of fixed concepts, logical categories and prescribed principles of reasoning. In the

exact sciences the faith is gone which the nineteenth century is reputed to have held in the immutability of ascertained and accepted truths. The conclusions of physical science are now held as provisional and working hypotheses. Even more tentative are the fundamental explanations of bacteriology and virology. Philosophy appears to have forgone the search for reality and seldom speaks of the absolute. History concedes the validity of a diversity of subjective interpretations. The visual arts tend to discard form as an expression of aesthetic truth. Clearly the intellectual climate is unfavourable to the high technique of the common law, to say nothing of strict logic. It is certainly not a time when many minds can be found to respond with lively animation to an encounter with a tolled

entry upon a descent cast, or with a demurrer to a plea giving express

colour on the ground that, lacking a protestando, the plea confesses but

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does not avoid a count in trespass; nor even with the acceleration of a

legal contingent remainder by the destruction of a prior contingent interest. We have turned in other directions . . . The possession of fixed concepts is now seldom conceded to the law. Rather its principles are held to be provisional; its categories, however convenient or comforting in forensic or judicial life, are viewed as unreal . . . illusory guides formerly treated with undue respect.

Still, courts necessarily proceeded on the assumption ‘that the law provides a body of doctrine which governs the decision of a given case’, which would be ‘right’ or ‘wrong’ insofar ‘as it conforms with ascertained legal principles and applies them according to a standard of reasoning which is not personal to the judges themselves’. There must be some external standard of legal correctness, an assumed existence ‘of a body of ascertained principles or doctrine which both counsel and judges know or ought to know’, a body of

knowledge appealable to, decided cases, authorities and strings of authority

around and through which dialectical argument can range. The development of the common law in its classical period, the nineteenth century, was marked by legal rationalisation and the search for and development of

principle.

There was a steady, if intuitive, attempt to develop the law asa science. But this was not done by an abandonment of the high technique and strict logic of the common law. It was done by an apt and felicitous use of that very technique and, under the name of reasoning, of that strict logic which it seems fashionable now to expel from the system. The courts did not arrogate to themselves a freedom of choice . . . courts proceeded upon the basis that the conclusion of the judge should not be subjective or personal to him but should be the consequence of his best endeavour to apply an external standard. The standard is found in a body of positive knowledge which he regards himself as having acquired . . . It is one thing for a court to seek to extend the application of accepted principles to new cases or to reason from the more fundamental of settled legal principles to new conclusions or to decide that a category is not closed against unforeseen instances which in reason might be subsumed thereunder. It is an entirely different thing for a judge, who is discontented with a result held to flow from a long accepted legal principle, deliberately to abandon the principle in the name of justice or of social necessity or of social convenience . . . The objection is that the judge wrests the law to his own authority. No doubt he supposes that it is to do a great right. And he may not acknowledge that for the purpose he must do more than a little wrong.

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And then, with devastating logic, Dixon showed in a few sentences just how

absurdly this ‘method’ or madness proceeded:

Indeed there is a fundamental contradiction when such a course is taken. The purpose of the court which does it is to establish as law a better rule or doctrine. For this the court looks to the binding effect of its decisions as precedents. Treating itself as possessed of a paramount authority over the law in virtue of the doctrine of judicial precedent, it sets at nought every relevant judicial precedent of the past. It is for this reason that it has been said that the conscious judicial innovator is bound under the doctrine of precedents by no authority except the error he committed yesterday.

These were sentences Dixon hoped would act like acid on the minds of judicial innovators. A few months later, in a letter to Lord Reid, he would write I am afraid it was a ‘manufactured’ subject synthetically treated. However I ventured some views on current academical theories concerning judicial method and the damage done by judges acting upon them. As the paper was read at a University which had given me a prize politeness (or was it only cowardice?) led me to say less than I meant & to express myself perhaps rather indirectly.”

But it was clear enough for Dixon’s friends, who took it as a timely warning. After reading it Frankfurter would write that

The current is running strong with us in expecting the judges not only to supplement the inadequacies of those primarily charged with legislation, but also to twist what legislators have written and freely undo what they have done, all in the interest of expressing the ‘social conscience,’ that easily definable thing!"°

Dixon would reply, ‘To a certain extent . . . 1 was aiming at Denning L.J. However, rather to my consternation, I received a letter from him saying he completely agreed with everything I wrote in it’.*' Denning was the judicial innovator par excellence. In Lord Simonds’ view ‘He is personally attractive

and has great learning, but I do regard him as a judicial menace’.*? That was Dixon’s view: ‘he baffles me. He seems always to be setting principle at defiance. I do not think wild horses would get a majority of the High Court

to follow some of his decisions’.®

The last half of Dixon’s address, to which summary would do injustice,

consisted of an extended, bravura display of the strict logic and judicial

method he had been defending, applied to one simple hypothetical example

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(elaborated however in all its potential complexities) from the field of contract, to suggest how the law may be developed to meet a serious challenge while maintaining its coherence and preserving its continuity.** Again it was Denning who was the implied target.*° From Yale they travelled to Boston for a conference at the Harvard Law School on ‘Government Under Law’ celebrating the bicentennial of the birth of John Marshall, Chief Justice of the United States from 1801 to 1835. Contributors

included

Earl

Warren

(United

States

Chief Justice),

Felix

Frankfurter, Lord Evershed (England’s Master of the Rolls), Albert van de Sandt

Centlivres

(Chief Justice

of South

Africa),

Patrick

Kerwin

(Chief

Justice of Canada), Erwin Griswold (Dean, Harvard Law School), McGeorge Bundy (Professor of Government at Harvard), and others. Dixon’s paper was on ‘Marshall and the Australian Constitution’, delivered on 23 September. An interesting feature is his attack on the High Court’s judgment in the Engineers’ Case. He detested the style of that judgment, written by Isaacs in his usual manner, full of superfluous rhetorical flourishes, and he despised much of its reasoning, including the way it minimised the influence of the American model on the Australian Constitution and trumpeted the British elements of unity of the Crown and responsible government. In ‘Marshall and the Australian Constitution’ he mocked its flawed logic, irrelevancies and lack of appropriate sequencing.** They were home at the end of September and guests at the Stawell Oration delivered by Menzies on 8 October, a tour de force on Churchill, Ramsey MacDonald, Baldwin, Chamberlain, Salisbury, Halifax, Roosevelt and Truman. Two nights later, at a dinner in Melbourne, Menzies asked Dixon to be the next Chancellor of the Australian National University (ANU) but Dixon said it was ‘inconsistent’ with his office.

In early November Sir Russell Grimwade died. He had been Chairman of the Felton Bequest Committee, and Dixon, who would shortly be elected to replace him (he would be particularly cautious about spending funds on items whose authenticity was dubious, and be in a stronger position to recommend the purchase of Greek vases*’), attended the funeral, held in Grimwade’s garden at Miegunyah in Toorak. ‘Archbishop Booth conducted the service’, Dixon

observed, ‘& spoke without elevation of mind

or of

emotion, his own place in Grimwade’s world dominating his thoughts’.®* A

few days later the chancellorship came up again, offered by the ANU’s Vice-

Chancellor, Leslie Melville. It was not a sinecure, there were troubles, Melville admitted: Sir Howard Florey and Marc Oliphant ‘both were angry at money without limit not being provided for experiments’; there were vocal ‘pink elements’; but Kenneth Bailey (Solicitor-General), H. C. Coombs and

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Melville wanted Dixon. The difficulties did not deter him, Dixon replied, but he could not do justice to two jobs.®*

In the new year he was called by Brooks to Government House to

advise General Sir Charles Gairdner, Governor of Western Australia, who

was a guest. Dixon’s diary entry for that night puts the situation concisely: He sd (1) an election wd shortly take place from which it was likely the

parties would return equally divided as at present (2) If neither leader could form a Govt what was he to do? . . . As to (2) I sd he shd attempt

by informal talk to secure an understanding by wh. the Govt cd be carried on or only dissolve if (i) there seemed a change of public opinion which made it possible that a dissolution wd result in a majority or (ii) supply was refused or (iii) no other course remained open. He must be careful to

maintain Rhadamanthine impartiality & also not to refuse a dissolution if there seemed a real chance of victory to the man seeking it. Further he shd send for the other man before granting it. Defeat on the floor of the House over legislation shd not be regarded as demanding resignation or dissolution in such circs. Refusal of supply was another matter.”

Gairdner went away a wiser and less worried man. He was someone Dixon

liked and respected and who had no legal background, and Dixon’s advice was merely proleptic. Through January of 1956 he was working on his judgment in the Boilermakers’ Case,*! which would be delivered in March. The constitutionality of the Arbitration Court was challenged by the Boilermakers’ Society (fined £500 by the Court) on the grounds that, under the federalist doctrine

of the separation of powers, judicial and nonjudicial functions could not be amalgamated in the same body. The Arbitration Court’s function was primarily nonjudicial—to arbitrate—and the judicial power (to enforce its arbitration by means of fines, imprisonment and so on) could not constitu-

tionally be attached to it. The High Court upheld this view in a joint majority judgment (Dixon, McTiernan, Fullagar, Kitto; Williams, Webb and Taylor

dissented), written by Dixon in his finest style, with an authority derived from his profound interest in federalism in Australia and the United States, replete with compelling legal argument, acute analysis of the Constitution,

and rhetorical concision:

If you knew nothing of the history of the separation of powers, if you made no comparison of the American instrument of government with ours, if you were unaware of the interpretation it had received before our Constitution was framed according to the same plan, you would still

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feel the strength of the logical inferences from Chaps. I, II and III and the form and contents of ss. 1, 61 and 71. It would be difficult to treat it as

a mere draftman’s arrangement. Section 1 positively vests the legislative power of the Commonwealth in the Parliament of the Commonwealth. Then s. 61, in exactly the same form, vests the executive power of the Commonwealth in the Crown. They are the counterparts of s. 71 which in the same way vests the judicial power of the Commonwealth in this Court, the federal courts the Parliament may create and the State courts it may invest with federal jurisdiction. This cannot all be treated as meaningless and of no legal consequence.”

The judgment puts principle ahead of administrative convenience and inevitably offends legal historians of a practical cast of mind unfriendly to the ‘abstract’ concept (they use the adjective disparagingly) of a rigid sep-

aration of powers. Dixon believed in that rigidity: ‘In a federal form of

government a part is necessarily assigned to the judicature which places it in a position unknown

where critics ‘Even tution

in a unitary system or under a flexible constitution

Parliament is supreme. A federal constitution must be rigid’. The endeavour to pick away at its logic,” but, as J. M. Finnis points out, those who regret it accept that the founders of the Australian Consti“beyond question” intended the separation of powers now required

by the Boilermakers’ Case’. Time and a train of judgments in subsequent

cases have tended to loosen the tight separation of judicial and nonjudicial powers established in the Boilermakers’ Case,** but Dixon had no qualms

over the judgment, which the Privy Council endorsed. As long ago as 1927

he had argued before the Royal Commission on the Constitution for a stricter interpretation of the doctrine of the separation of powers, referring explicitly to the Arbitration Court—its vesting with judicial as well as

nonjudicial (arbitral) powers ‘might lead to difficulties . .. but no one has hitherto been courageous enough to pursue this argument’. He had added that in his view ‘the necessity of preserving a completely independent judiciary in a Federal system may be said to be absolute’.*” His principal concern, as he now told Lord Simonds, was ‘the length of time during which the provision had been allowed to stand’—the power was derived from an Act Latham had introduced as Attorney-General and during his tenure as Chief Justice he would have fought hard to preserve it.°* ‘He knew that I harboured ideas about the invalidity of his measure’, Dixon told Frankfurter, ‘and often on the Bench when I thought of insisting that the matter be argued I refrained from doing so out of deference to him. Starke’s attitude about judicial power was very strange. Why I do not know, but he consistently decided every case turning on judicial power in favour of the

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validity of legislation whatever it did’.?? Frankfurter wrote to Dixon (on the

same day) regarding this judgment, ‘I am a strong believer in keeping courts

within the limits of “judicial power” that lawyers trained in our tradition ought readily to recognize even though they be not readily definable’, but then implicitly criticised some of Dixon’s assumptions regarding American cases.' Simonds, replying to a letter of Dixon’s about the case,? commented,

‘I will only say from a safe distance that to arm the arbitration Court with

power to punish disobedience to its awards looks a pretty flagrant breach of the Constitution’.> Dixon had no qualms about writing to Simonds regarding this case because he considered it an inter se case that would not come before the Board. He was wrong—Simonds was to sit on this very case. He would write the following year, Now I am going to tell you something which will interest you. Last week we finished the hearing of the Boilermakers case and the writing of the judgment has been entrusted to me. I have just started on it. That means that we shall dismiss the appeal. I wd. almost say ‘of course’: for your judgment left no loophole; it was a really magnificent bit of reasoning. Yet such was the obstinate stupidity (if it was nothing worse) of Denis Kilmuir and of more than one of my colleagues that to the last I felt some doubt which way the majority would go. This, I need hardly say, is for you alone and probably I ought not to say it even to you—but you are such a safe outlet for my outraged feelings! I tremble to think what might have been written if the thing had gone the other way. As it is I shall try to dish up what you have said far better.‘

Dixon would reply: I am greatly relieved . . . You will of course have gathered from what I wrote that I regard the doctrine concerning judicial power on which the decision rests as almost basal to the system. I would not like to say how long ago I formed that view, and I have always felt that any other doctrine involved a misunderstanding of the whole instrument of government & one that might conceivably lead to fatal consequences. That has become only too apparent here lately . . . 1 blame myself for not intervening from the Bench years ago & forcing the issue. I ought to have done so twenty years ago. But in those days it suited neither side in these conflicts concerning industry to disturb the assumption on which the Arbitration Court acted. For the industrial judges of the time showed a good deal of wisdom & never used the powers in question so as to cause resentment [or] trouble.*

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For its part the Government, following the Boilermakers’ judgment, quickly established a true federal court, the Commonwealth Industrial Court, to exercise the judicial power formerly exercised by the Arbitration Court, separating it from arbitration (the province of a new Commonwealth Conciliation and Arbitration Commission) and so solving the difficulty. Sir George Rich died in May, and Dixon (as was customary) gave the valedictory from the bench, speaking with warm appreciation of Rich’s contribution to the Court.® Richard Searby, Dixon’s associate at the time, remembers Latham telephoning Dixon to say how furious he was. How could Dixon possibly do that, bring down the reputation of the Court by speaking like that about Rich? Of course that was nonsense, when somebody dies you don’t necessarily say what you think about their foibles. But he always liked Rich, he was very fond of Rich and got on extremely well with him. He got on with Starke. He got on with every one.’

That same month, at a State dinner hosted by Sir Dallas Brooks, Lord

Mountbatten sought Dixon out to discuss Kashmir. It had been under

Mountbatten’s administration that the problem had been created, he said. He excused himself, laying the blame with his lawyers, including Stafford Cripps, for advising him that as the Princes of India had the power to

incorporate their states with India or Pakistan they should be allowed to do so without reference to the popular will.* Arnold Toynbee visited in July and Dixon heard him in Canberra, unimpressed (‘he allowed his imagination to play in an absurd way & wandered about’). The ANU

had invited Dixon to tour the university, still

hopeful he would accept the chancellorship, and a postgraduate student named Robert Hawke and his wife Hazel were delegated to show him over

the War Memorial and Cotter Dam. Dixon noted that ‘Hawke is “researching” into the Arbn Court’. That gave them something serious to talk about

and Hawke was unforgettably impressed: ‘It was an absolutely formidable

mind’?

Back in Melbourne on 12 July Dixon chaired and introduced one of

Toynbee’s Dyason lectures, ‘The Balance Sheet of Emancipation’, in the

University of Melbourne’s new Wilson Hall. ‘There were 1500 people present’, Dixon noted, ‘but the amplifying system made it impossible to follow the lecture in the greater part of the Hall. People left. In any case the lecture was no good’.'? Meanwhile the ANU chancellorship was still up in the air. Sir Macfarlane Burnet advised against accepting but Dixon was still considering in October when he told Menzies he would only accept in order to prevent what he considered the bad alternative, H. C. Coombs’ appoint-

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ment. Menzies promised they would find someone acceptable. That decided it, along with a warning from Clive Fitts, Dixon’s physician, against undertaking more work, and the irregularities he sometimes felt in his heart." On the morning of 11 September Casey rang to get Dixon’s views on the crisis that had blown up over the Suez Canal, which Egypt had nationalised. Dixon thought Britain’s use of force a dangerous and impossible course, but if it landed her in a war Australia had to stick to her. In the afternoon the papers reported leaks to the effect that Casey was against the use of force—he simply adopted Dixon’s view. Menzies, on the other hand, strongly supported the British policy (he would soon be negotiating, unsuccessfully, with President Nasser at the behest of the British and Americans). That night Sir Dallas Brooks told Dixon he thought Casey’s leaks very harmful, there was no danger of Russia joining in, Britain had to show she was a first-class power, and Menzies was admirable—in fact could Brooks cable him to that effect? Dixon advised against it. Governors should try to be non-political. Over the following weeks Casey continued to solicit Dixon’s advice, even asking him what he should say at the General Assembly of the United Nations (‘He wanted me to supply ideas as to what he cd say on any

topic’).!? It was extraordinary.

Meanwhile the Government had set up the Commonwealth Industrial Court and appointed former Attorney-General John Spicer as its Chief Judge, an appointment Dixon thought ‘wicked’. He discussed the matter with

Casey in late September at the Melbourne Club. ‘Did we do so very wrong

in appointing Spicer?’ Casey asked. ‘If I may speak candidly’, Dixon replied, ‘you did’. ‘Why, Latham appointed himself’, Casey countered. ‘He always claimed he did not’, Dixon pointed out, ‘but no one would have appointed Spicer on his merits. It was only done to give him a job. The question is whether public offices of importance should be filled only to provide for people’. ‘I know Spicer’s lazy’, Casey admitted, ‘but at Cabinet he always showed common sense’. ‘But he was only a second-class counsel’, Dixon insisted, he would not appear before us as Attorney-General—he was afraid, and he had no qualifications for the office. The trouble is that the appointment affects the integrity of the Government. He sent an emissary to ask the State Government for a seat on the Supreme Court and Rylah answered, ‘In such matters we keep our hands clean’.

Casey, shamed by that piece of background, turned pathetically defen-

sive, blaming the absent Menzies: ‘Why did not Bob tell us? He answered

our cable in a half-hearted way. Why was he not definite?’

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Sex and scandal lent interest to Sydney Sparkes Orr’s appeal to the High Court against the Tasmanian Supreme Court’s finding that he had

been justifiably dismissed by his university for engaging in sexual relations

with a junior student, Suzanne Kemp. At the time there was tremendous sympathy for Orr in the Australian academic community—from the mid1950s, if not earlier, ‘free love’ was in considerable favour among more ‘advanced’

academics

on

the

unheard of. Orr’s vacated chair and by the 1990s Orr would be rightfully dismissed.'* During Kemp and her parents stayed associate Richard Searby were

campuses,

and

‘sexual

harassment’

was

was blacklisted for years. But times change, reviled by ‘progressive’ academics asa villain the period preceding the appeal Suzanne at 52 Macleay Street where Dixon and his also staying. Searby recalls that

Dixon said to me ‘We've got to be careful not to run into them, because I’m sure the case is going to come up to the Court. I don’t really like being in the same building with them but there we are’. And then one evening when we went to dinner Mr and Mrs Kemp were there and Suzanne Kemp was not there. I remarked on this to him and he said in his cus-

tomary wry fashion, ‘Yes, I noticed they were looking a bit happier tonight’. He had a sardonic humour. He thought she had behaved terribly immorally though led into it by Orr, and that they must have had a difficult time with a daughter like that. By this time, late 1956, Dixon was becoming dissatisfied with ‘52°. A

Mr Gold or Gould had bought 52 Macleay Street and started doing it up, getting rid of old servants, making the windows larger, pulling down the high wood panelling that was typical of its period. According to Searby, these small improvements went on, and one morning at breakfast Dixon said to me, ‘Have you noticed, Searby, they’re making a lot of alterations

to this place?’, so I cautiously said ‘Yes . . .” (because I never jumped in, with Dixon, to say something like “Yes, isn’t it much better?’), and he

said ‘Yes, the place is going to the dogs’, so I said ‘I couldn't agree more, what do you think we might do?’ ‘Well’, he said, ‘I’m an honorary life

member of the Australian Club, I think we'll go and stay there’.

Searby recalls Dixon’s daily routine in Sydney at this time. They would breakfast shortly after 7.30 a.m., leaving 52 Macleay Street by Commonwealth car at 8.20 a.m. and arriving at the Court at Taylor Square by

8.30 a.m. The Court sat at 10.30 a.m. and rose at 1 p.m., at which time they would return by car to Macleay Street for lunch, returning to the Court

by 2 p.m. or five past. The Court then sat from 2.30 to 4.30 p.m. Dixon would work or confer until 6 p.m., then the car would take them back to

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52 Macleay St where they would dine at 7 p.m. After dinner, nearly every night, they would walk to Taylor Square, sometimes stopping on the way to browse at Clay’s Bookshop in Macleay Street, owned and run by Miss Chapman, who did not close till 9 p.m. They would walk through King’s Cross (Dixon in his unvarying grey homburg hat) and get to the Court by 8.15 p.m., work until 11 p.m., and walk back through King’s Cross again. Then there would be a cup of tea, poured from a thermos flask left for Dixon by May, an elderly maid there, devoted to Dixon and to Lady Dixon. Searby would leave Dixon before 12 p.m. for bed. Most weekends they went home to Melbourne, but if they stayed in Sydney they would always work Saturday, in chambers. On Sunday Dixon would read or visit friends, or sometimes go to the Court. ‘I never let him go to chambers by himself at nights’, Searby points out, ‘or at weekends. If he was in Sydney (and the same went for Adelaide, Brisbane, Perth and Hobart) I was available to him 24 hours a day’. Searby found Dixon consistently considerate and enjoyed his wit. ‘I remember one man who kept coming to see him, obsequiously importuning him to do things, calculating on wearing down his resistance— Dixon referred to him as ‘the deferential calculus’.'s Dixon was quite capable of writing very funny judgments, partly because he looked at each case so objectively, without any particular presumptions about it. He wrote the joint majority judgment in a 1956 obscene publication case involving a group of magazines banned in Queensland by the Literature Board of Review—pictorial romances consisting of consecu-

tive drawings in panels with captions spoken by the characters, with titles like Romance Story, Love Experiences and Darling Romance. McTiernan, in whose dissenting judgment there is no trace of humour, found them

‘distinctly evil’, ‘likely to inflame the venereal passions of the classes of

young persons likely to devour this trash’.'6 Dixon, on the other hand, calmly observed that Virtue never falters and right triumphs . . . The pages contain nothing prurient, lewd or licentious . . . Why then has this literature been considered unduly to emphasise matters of sex and exhibit a tendency to deprave? It is because the lovers are depicted as loving passionately. They embrace and they embrace closely. Their kisses, although pure are full and perhaps prolonged . . . Moreover, the eyes of the heroine are

drawn with lids either drooping or unduly raised and her lips, though drawn in black and white, are obviously rosy as lipstick can make them ... The convention that requires formal introduction seems safely to be ignored by the heroines and there is no reason to suppose that it is observed in the circles in which they and the expected readers move...

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What they contain is an affront to the intelligence of the reader but hardly a real threat to her morals. The stories are extremely silly, the letter press is stupid, the drawings are artless and crude and the situations are absurd. But we are not concerned with the damage done to the intellect or for that matter to the eyesight of the readers of these foolish periodicals.'”

Menzies visited in the New Year to discuss the contemplated appointment of Percy Spender to the International Court of Justice at The Hague. Dixon wished to be kept out of it—his private view was that Bailey was better qualified, but ‘anyhow the Court was hopeless & was not respected’.

(Later that year Dixon would accept the Presidency of the Australian section

of the International Commission of Jurists, something he would come to regret a few years later when it became involved in a political issue in Australia.) They also discussed possible sites in Sydney for a new High Court

building there (the Court’s principal building, which it had occupied since

1928, was in Melbourne). Dixon was particularly concerned to ‘prevent the Court settling at Canberra’ in splendid isolation.'* Although in the 1930s he had believed that ideally every judge should write a judgment, he was now reconciled to the need for a large number of joint majority rather than seriatim judgments. It was not just a matter of the load. He now fostered the idea that the Court should write joint majority judgments, having come to believe that it was not always a good thing for the law if one had three or five judgments all approaching the subject slightly differently. Searby recalls his saying ‘It’s hopeless for the profession, because what they’re pleased to call the ratio decidendi [ground of a judicial decision] of the cases would be scattered all over the place depending on what judgment you took. It’s wonderful for academics but not for the practising lawyers’. Searby observed the way Dixon elicited these joint judgments: " They’d have a conference, it wasn’t done in any sort of businesslike way, there’d be a number of outstanding judgments, and they’d all go and sit in Dixon’s room for an hour after court. He’d talk about each case, and

if there appeared to be any clear view about it he’d say, ‘Well, Fullagar’, or Kitto or whatever, ‘would you write something up about that and send it round, then we'll see if we can agree on it’. That was a great innovation and a very good thing to do. He had a lot of influence in the process.!9

The completion of the process is illustrated by a mid-1957 example:

in

Dixon’s words, ‘Taylor produced a draft judgment in the Orr case which he

& Williams had dictated last night 8& he had afterwards corrected. I made

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alterations & additions & Wms joined us and helped. At length we agreed a text’,20

Although the atmosphere of Dixon’s Court was generally harmonious, minor conflicts arose and individual justices occasionally required pulling into line, testing the diplomacy and authority of the Chief Justice. In February of 1957, for instance, during the first day of a hearing, Taylor interfered in Maurice Ashkanasy’s opening, incessantly arguing with him and destroying any sequence or utility there might have been. He intervened again when Oliver Gillard began his address, failing to understand a view because it was overstated and endeavouring to destroy Gillard’s argument. Kitto sat silent, his head in his hands, affecting not to listen. Dixon said quietly to McTiernan (sitting beside him) that he found it difficult in these too-frequent situations to know what to do. (Dixon’s own questioning of

counsel, as Douglas Menzies found, was always designed to provide them

with insight.2') At 4.30 p.m., as they were leaving the Court, Kitto said to

Taylor that Gillard was either stupid or otherwise incompetent. Dixon felt he should speak. ‘I cannot agree’, he told Kitto. ‘Counsel’s position was made very difficult, and he did not deserve such disparagement. To follow his argument we should listen.’ Taylor replied that he had to understand what he was listening to. This was on Friday. On the following Monday Dixon’s car, taking him to Court, passed Kitto in Little Bourke Street. Kitto must have noticed it, yet ‘he deliberately avoided meeting at the door of the Court’. The next day, after Court, Dixon went to Kitto’s chambers to say he regretted if he had said anything hurtful on Friday—the same things were seen by different people differently, and he hoped it would not affect their friendship, which he valued very highly and which had given him great pleasure. Moreover, differences between judges had clouded the Court’s history in the past. Kitto replied that they had not had any difficulties in seven years. ‘He seemed friendly’, Dixon observed, ‘but very unresponsive probably through embarrassment’. Dixon then went to see Taylor who had

sat quiet all day on the bench, but he had gone home. Dixon saw him the

following morning. ‘I regret that I allowed myself to express my feelings on

Friday’, he told him. ‘It’s always a mistake, but I, in particular, should not do

so.’ Taylor told him to forget it. ‘I don’t want you to behave artificially on the Bench’, Dixon insisted, but later noted that ‘As with Kitto to a less extent he left me quite uncertain whether he understood’.” A few weeks later, ‘Taylor was reported to have returned the PC judgments in the Boilermakers case & the Long Service leave case without reading them. No mention by him to me of the cases’.”? Dixon said nothing. Indifference is not cured by pointing it out. If he thought a judgment wrong, however, he would always debate it.”

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Dixon’s self-control and formality, sensitivity and human sympathy meant he rarely created tension, but he lacked the casual facility to defuse

the tensions of others’ creation because he was not a happy-go-lucky man

despite his fund of humour. That applied at home too, where Franklin’s permanent presence, his profound psychological problems and volatile nature created frequent strain. It was a good fortune that Dixon had the support of his wife Alice, such a kind and strong woman, who was often necessarily left alone to carry the family’s burdens. Both accepted Franklin as he was, though he greatly worried them.?5 Richard Searby, who knew the family well, noticed that Dixon would talk about Franklin or Ted, but always to their credit. He’d say Ted’s doing this or that, Ted’s told me this or that, Franklin’s been reading such and such. He never said anything which was adverse criticism about them at all... Ted was just not very bright. He also had bad eyesight and wore very thick glasses. But he was not well informed and would always give you categorical statements about this or that which were really just prejudices. Dixon never demolished him or took him up or did anything about it. He adored the two girls, and it was odd (wasn’t it?) that they

were both very nice women, capable and perfectly regular, charming people, and the two boys had so many difficulties.?6

Such unresolvable difficulties he could live with. He was not one of those who cannot contain their problems, anxieties or moral burdens and have to be burdening others with them, then always discovering afterwards that the problems are still there.

Mid-1957 was productive of four significant papers. Of the two he

delivered in July at the tenth convention of the Law Council of Australia, one is a consideration of the common-law foundations of the Constitution, essential reading in relation to his legalist interpretation of the Constitu-

tion.?” The other is a devastating criticism of developments in the definition

of criminal insanity stemming

from the M’Naghten

prisoned this area of the common law

rules that had

im-

in a formula, a formula which has been misunderstood at more than one

point and has deprived the common law not only of its capacity for development, but even of its accustomed flexibility of application. The

growth of modern knowledge on the whole subject has meanwhile deprived the terms in which the formula is expressed of practical meaning.?*

He also wrote at this time a tribute to Frankfurter for the Yale Law Journal

that examines his influence on Australian Constitutional law.?? The fourth

paper was the Syme Oration delivered in Melbourne on 20 August on the

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invitation of the Royal Australasian College of Surgeons. Taking as his text John 18.38, he speaks as a twentieth-century Pontius Pilate sceptically asking ‘What is truth?’—truth as understood in a variety of professions including medicine and the law. It is an autobiographical excursion exquisitely com-

posed: for instance in Washington, he observes, ‘the minds who decided could never be adequately informed, and the minds that were adequately informed could never be permitted to decide’. Through July he wrote his judgment in the Second

Uniform

Tax

Case,! a challenge by Victoria and New South Wales to the continuation of

the uniform taxation established as a wartime measure by the First Uniform

Tax Case (1942), on which he had not sat, and which had upheld legislation

transferring the States’ income-taxing powers to the Commonwealth. Dixon (along with his Court) supported the continuation of uniform taxation, albeit with reservations—lapse of time was the chief factor in his mind. Also under challenge was the Commonwealth’s priority, under a section of the Income Tax and Social Services Contribution Assessment Act 1936-1956, to payment of any federal tax before payment of the relevant State tax. Ina victory for the States, this was found invalid by the majority including Dixon, opening the door to a reintroduction of State income taxes had any

State been prepared to forgo its federal grants, something none of them had

the will to do. (They would shy away from it again after 1975 when the Fraser Government boldly proposed that the Commonwealth vacate at least part of the field of income tax.) Dixon and four of the other justices indicated (in obiter dicta—opinions expressed incidentally, without binding force) that the Commonwealth did have priority over a State, however, in regard to payment of tax debts in company bankruptcy proceedings’=—something he had argued in dissent as early as 1947.3} Dixon discussed the judgment with Starke, whom he was still seeing regularly at the Australian Club in Melbourne and for whom he retained considerable respect. Starke thought

it should have been decided on the ground that the relevant Acts formed one whole scheme for which there was no power.™ This had been his position in

the First Uniform Tax Case in 1942. In January of 1958 Dixon received a letter from Harvard University offering conferral of an honorary doctorate. He had been invited to receive an honorary doctorate from Oxford in 1954 but had declined, as he had

just been to England for the coronation and could not justify the time or

expense.>5 American universities, however, pay the airfare and all expenses. Richard Searby remembers saying to him “Well, what about Oxford?’, and he said ‘Oh, I don’t know’. I said ‘Could

you go on to Oxford?— because most of the trip would be paid for, and it’s very little add-on’. He said he didn’t know. So I spoke to Alan Brown

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at Worcester College Oxford and asked would they like to renew the invitation to Dixon. He replied yes, they would. So they wrote to him to say ‘Would you come over to get an honorary doctorate from Oxford?’, which he then did.°*

The ceremonies were scheduled for June. British Prime Minister Harold Macmillan was in Australia in early February, Dixon meeting him several times, finding his speeches ‘restrained by no sense of exaggeration or hyperbole’—policy speeches, essentially, for the London papers to pick up.” He was ‘open and direct in private talk’, Dixon wrote to his daughter Anne, but ‘unashamed in his buttering up of our compatriots’. Anne was touring Greece and had written of the sights of Athens. Dixon wrote: I felt that you had got a good understanding of the Acropolis & its surroundings & that perhaps now you would understand why it is that Greek literature and language has always been my supreme attraction or interest. I am deeply interested in Latin & in Roman history but there has never been anything like the mind and art of ancient Greece. And that I saw you could feel in the shattered remains of the monuments you saw. I used to know the ground plan of ancient Athens thoroughly. I saw from your letter that you did a remarkable piece of work in following and naming all the features upwards from the Erechtheum through the Propylaea.°*

Three days later he wrote to her again after inspecting Como, in Toorak, with the National Trust, in whose work people were trying to interest him: Daryl Lindsay’s new Trust for Historical Monuments wishes to buy it. It is a Victorian ‘mansion’ of the 1860s & very mid Victorian & one can understand the desire to preserve it. To a generation that never saw a Victorian home say of the 1870s it is highly interesting. But when I was a boy they were not uncommon. No one then thought them beautiful or artistic. For my part I would not have sufficient enthusiasm to preserve this example.°?

It was a quiet period. The Queen Mother was visiting and Dixon found himself seated alongside her at one of the dinners. She loved the relaxed manners of the people, she said, the shouts of ‘Good on you, Mum!’ Dixon spoke of the British character of the country, which unfortunately, he felt, was changing, and the dislike some ex-servicemen felt for Italian migrants. She replied that she did not like ‘knifey people’ like Italians and Greeks, but Dixon defended the Greeks, saying they were respected because of what

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they had done for Australian troops in World War II. She felt that ordinary Americans had been with Britain over Suez, even if Eisenhower and Dulles

had not. They talked about the war, she observing ‘How singular that victory should be snatched from us’. ‘Twice’, Dixon added, perhaps referring to

America’s late entry into both World Wars, or conceivably to resurgent Germany and Japan, with their new industrial infrastructures. There was a service next day at St Paul’s Cathedral where Archbishop Woods preached, taking as his texts ‘Am I my brother’s keeper?’ (to which the answer was Yes’)

and

‘Put on charity’

(‘whence?’,

Dixon

wondered).

It was a bold

sermon about relations with the third world, and international tension and hostility (doubtless bringing the United Nations to Dixon’s mind), and would have been ‘grand if we were the party of strength & Asians & Africans of weakness’.*° Dixon was thinking, presumably, of the third world’s numerical strength in the General Assembly of the United Nations. Sir Dudley Williams suffered a heart attack in late March and on Dixon’s urging would retire a few months later. His health had been steadily deteriorating and he had become a burden on the Court—he had written

just twelve judgments over the past twelve months.“! Then at the end of April Sir William Webb told Dixon he had been offered £5000 per annum

for ten years, together with a secretary and a car, if he would accept the chairmanship of Queensland Television Ltd. Dixon, who liked Webb but felt he should never have been appointed to the Court, encouraged him to accept, though he had been highly critical of Latham’s becoming chairman of Humes Ltd after retirement. Webb resigned as from 16 May.*? The two vacancies were filled by Douglas Menzies and W. J. Victor Windeyer, both on Dixon’s suggestion. Of the two, Windeyer, who had a distinguished war record (he had commanded the most decorated battalion, the 2/48th), would in Dixon’s view prove the better judge. Douglas Menzies had been a

dazzling advocate but, as Dixon saw it, would never quite make the grade as a High Court judge, finding the work ‘unexpectedly defeating’.4? Another

milestone came in May with the death of Sir Hayden Starke.

The Dixons flew out for the United States on 4 June on what would be their final trip abroad. They were put up at the Australian Embassy in Washington on the 6th as guests of Ambassador Howard Beale. Frankfurter

paid a call first thing the next morning, venturing an analysis of the current

state of the Supreme Court. Mr Justice Black, he thought, had ‘captured’ the Chief Justice, Earl Warren. In unimportant cases Hugo Black agreed with Warren, but in cases close to his heart ‘he dominated him—much the ablest intelligence, but of lowly origin & a hater & without legal education’. The plain reason why Black had been able to ‘capture’ Warren, Frankfurter thought, was that Warren, ‘knowing no law, had no outworks which Black

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had to storm’. Except for Burton, Frankfurter thought, every judge on that court lacked proper legal education. Whittaker was ‘just a heavy blind man’, and in Frankfurter’s view ‘Legal questions were regarded by all save himself & Burton as “technicalities”’. Frankfurter was at the dinner Beale gave that evening for the Dixons, along with Chief Justice Earl Warren and Justice William O. Douglas, Allen Dulles of the CIA, Attorney-General William P. Rogers and a few others. Warren sat next to Mrs Beale and Dixon could hear him telling her of the Court’s conservatism, just like the 1920s, and of Frankfurter’s reverence for Mr Justice Holmes. ‘I thought Rogers dumb & Allen Dulles loud’, Dixon noted afterwards. They flew to Boston on the 9th, dining that night at the Somerset Club with Massachusetts Chief Justice Wilkins and Judge Charles Wyzanski, United States District Judge for Massachusetts, a considerable lawyer who, in his youth, had been a law clerk for Judges Augustus and Learned Hand.** The degree of Doctor of Laws honoris causa was conferred on Dixon at the graduation ceremony on 12 June, and other honorary degrees on Secretary of Defense Neil McElroy, Raymond Aron and others. Two days later Dixon and Alice flew to London, dining with Lord and Lady Simonds on the 16th. On the 19th the Australian High Commissioner Sir Eric Harrison gave a dinner, the guests including R. A. ‘Rab’ Butler MP and the Indian High Commissioner Mme Pandit (Nehru’s sister), to whom Dixon talked at length—she knew Watt and Bajpai—before her early departure (‘she had to have an overhaul next day’, Lady Dixon noted“). Lord and

Lady Simonds were there, Lord Evershed, the Kittos, Mr and Mrs Frank Menzies and Lady Slim. The ceremony at Oxford’s Sheldonian Theatre on the 25th saw honorary doctorates bestowed not only on Dixon but on Prime

Minister Macmillan, Lord Beveridge, Leader of the Opposition Hugh Gaitskell, Sir Alan Herbert, Francis Poulenc, Dmitry

Shostakovich,

and

Pro-

fessor A. W. K. Tiselius. On Dixon the English abstract of the Latin Oration (read by the Public Orator) ran in part: In private law his practical knowledge of every branch is so extensive that he is said to have no equal. In public law he is quite as great, partly because his knowledge is so many-sided and partly because he observes consistency of principle—but listen to his own words: ‘it is not sufficiently recognised that the court’s sole function is to interpret .. . and that it has nothing whatever to do with the merits or demerits of the measure . . . We believe that close adherence to legal reasoning is the only way to maintain the confidence of all parties in Federal conflicts . . . There is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism’.‘”

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The quotations were from his speech on his appointment as Chief Justice. Walking beside Gaitskell in the procession, Dixon took the opportunity for a talk, finding him ‘capable and intelligent but not outstanding. He spoke of Evatt and said that he could see no particular merit in him: if he had ever been any good he had ceased to be: he could not make a speech and he had expressed no ideas either in speaking to the Labour group or privately’.**

This was nothing new—Dixon seems never to have found anyone in British

Labour with a good word for Evatt. There was a reception in the Dixons’ honour at Australia House on 2 July hosted by the High Commissioner. Lord Mountbatten, Lord and Lady Bruce, Lady Gowrie, Lord and Lady Carrington and a host of others were there. Three days later the Dixons were Lord Denning’s guests. Given his host’s geniality, Dixon felt free to criticise not only the Privy Council (as he also did over lunch with Lord Kilmuir) but also Denning’s innovative way with the law. ‘I said that I did not believe in treating case law otherwise than as a stream of authority. He spoke of his legislative position as a means of reform.’ Denning went on to commend the work of the High Court as he knew it from the Commonwealth Law Reports, but in Dixon’s view ‘all his conversation & that of other Lords shewed that they had no proper

facilities for work & did very little behind the scenes’.”

While they enjoyed their time in England, as they always had, they were alarmed at the great number of Jamaicans and other West Indians who had been allowed to immigrate there. A staunch advocate still of the White

Australia policy, it seemed to Dixon, as it did to Alice, that those responsible

were creating immense social problems for future generations. Dixon intuited a Britain torn by urban interracial violence (which would first break out at Notting Hill and Nottingham that very year). In the early 1960s he would tell his associate James Guest ‘They can have communism and get rid of it after fifty years, but they can never get rid of that’. What was especially percipient was his observation on communism—almost no one, until the 1980s, thought that a nation once communist could ever rid itself of the system.*° In 1958 there were fewer interesting constitutional cases coming before the Court, Dixon writing to Frankfurter in November, ‘I find it a relief to deal with cases about the ordinary law’.*! Dixon’s judgment in one of these

latter, Mayfair Trading Co. Pty Ltd v Dreyer, is a clever and quite malicious demolition of a judgment of Radcliffe.*? It exemplifies the dilemma Dixon

faced from time to time in choosing between, on the one hand, his respect for judicial authority and desire to maintain the unity of the common law

and, on the other, the need to eradicate error. Some of Dixon’s most interest-

ing judgments revolve around precisely that dilemma.*? In this case (which

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also exemplifies his occasional tendency to become so consumed

by his

thoughts that he fails to paragraph his judgment over long stretches) he

applied a recent Privy Council decision, though it had undermined a persuasive judgment of Lord Parker,’ someone Dixon held in the highest esteem, and though he thought its reasoning flawed.5* He wrote to Frankfurter some months later that ‘with a few exceptions the judgments of their Lordships have done little to illuminate any field which they have

entered of late’.*” In April of 1959 Dixon was awarded an LL.D honoris causa by the University of Melbourne, an overdue recognition by his alma mater which he repaid with a verbal tribute to the two men who had most influenced him there, Thomas George Tucker and Sir William Harrison Moore.** Dixon had become critical of the Melbourne Law School under Zelman Cowen,

writing to John Young in February of his concern about ‘the Americanisation of the Law School in Melbourne. I have nothing to say whatever against a man who has time and money to do so spending years at Harvard. But no one who has seen the influence of Oxford on men could think that it is any substitute to go to Harvard’.*? More widely he was worried about the continued loosening of ties with Britain, due largely, he knew, to British indifference towards Australia. In conversation with Sir Gilbert Laithwaite in

March he proposed that British cultural representatives be posted to both

Melbourne and Sydney and suggested an exchange of school teachers. Laithwaite acknowledged that the sentiment for close ties was still strong in Australia—Victorian Premier Henry Bolte ‘had told him that the States

would sooner be governed from London than Canberra’,” a wild exaggera-

tion from a minuscule grain of truth. In early May of 1959 Erwin Griswold was visiting from Harvard for a meeting in Sydney of the International Commission of Jurists, and Dixon, as President of the Australian section, saw a good deal of him and was

delighted when Griswold told him that the United States Supreme Court

‘needed “legalism”’. The subject of Griswold’s paper was the recent South

African treason trials. It was a ‘good performance’, Dixon thought, ‘in which he showed penetration and discrimination and at the same time adhered to a completely definite condemnation of the real evil of which the proceedings were a reflection’.*' Lord Justice Pearce was in Australia in July for the convention of the Law Council of Australia, held that year in Perth,

and went on to Melbourne where he was entertained at ‘Yallambee’. On the

29th Dixon gave a dinner for him which Menzies attended, the latter saying he thought Barwick, who had gone into Parliament on his urging and been appointed at once Attorney-General, was performing very well in his new

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role. He realised Dixon had reservations. ‘None at all’, Dixon responded with typical irony, ‘except as to legal knowledge and complete reliability’.

Although Dixon was now well into his seventies his mind was as sharp as ever. He was still capable of developing the law in important ways. An

example is his 1959 judgment in National Research Development Corporation v Commissioner of Patents, which turned upon the definition of patentable processes. The NRDC had developed a herbicidal composition consisting

of known materials which in combination were found effective in control-

ling weeds without damaging the crops they infested. A patent had been refused on the ground that there had been neither invention nor new manner of manufacture as required under section 6 of the Patents Act 1952-1955 and section 6 of the Statute of Monopolies dating from the reign of James I. A series of English judgments over the past 170 years had gradually widened the definition of ‘manufacture’ to include both a process and a product but,

as Dixon pointed out, ‘The truth is that any attempt to state the ambit of s. 6

of the Statute of Monopolies by precisely defining “manufacture” is bound to fail’, and ‘It would be unsound to the point of folly to attempt to do so now, when science has made such advances that the concrete applications of

the notion which were familiar in 1623 can be seen to provide only the more

obvious, not to say the more primitive, illustrations of the broad sweep of

the concept’. Each case had to be examined on its merits and with regard to

the developing case law, which he proceeded to do in this instance. In the process he traced, through the relevant reports on patent cases, the changing

understanding in Britain and the United States of this important area of

patent law from 1795 to the present, thoroughly expounding it for the first time. The distillation of principle in this judgment is often impressive: The point is that a process, to fall within the limits of patentability which the context of the Statute of Monopolies has supplied, must be one that offers some advantage which is material, in the sense that the process belongs

to a useful art as distinct from

Carolina Chemical

a fine art (see Re

Virginia—

Corporation’s Application)—that its value to the

country is in the field of economic endeavour. (The exclusion of methods

of surgery and other processes for treating the human body may well lie outside the concept of invention because the whole subject is conceived as essentially non-economic: see Maeder v Busch).

One of the cited authorities, Mr Justice Lloyd-Jacob, wrote out of the blue to compliment Dixon. Lloyd-Jacob was a distinguished patent lawyer and conducted the patent work in the High Court in London where he was the dominant authority for more than two decades. He wrote:

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It is a sad reflection thatI had to depend upon the fortuitous working of circumstance to learn of the brilliant exegesis of Sect. 6 of the Statute of Monopolies contained in your Court’s judgment in application No. 10,301/55 by N.R.D.C. A fellow Bencher and a deeply admired friend should have opened my eyes earlier. I have only just finished my first perusal of the report in the 14.1.60 issue of your Official Journal, and I am still thrilling to it. I shall have to give myself some time to approach it anew and reflectively, but I felt I had to write off at once to offer my respectful congratulations.“

It is one thing to develop the applicable principles of the law in new fields, altogether another to develop them in a heavily ploughed, 350-year-old field such as this and at the age of seventy-three. The ramifications of this decision were highly significant. It was followed in other jurisdictions and it

sanctioned the patentability of various agricultural chemical processes.

Dixon was also prepared, in the interests of common sense, to discard long-accepted legal fictions, as he did in a 1960 case, Commissioner for Railways (New South Wales) v Cardy in which the respondent, a boy of fourteen, had trespassed onto land used by the Railways as a tip for ashes, which,

beneath an apparently hard crust, had remained hot. His feet had broken

through and been badly burned. Traditional legal theory dictated that one needed to establish a licence (in this case the Railways’ licensing of the boy’s incursion onto the land in question) as the foundation of liability, though one might, often with difficulty, establish an implied licence, and some degree of duty of care. In England the recent Occupiers’ Liability Act 1957 had meant that to imply or impute a licence was now to place a far higher standard on the duty of care. As Dixon pointed out, ‘Whatever may be the outcome it involves a distinct point of departure from the law obtaining in Australia. Why should we here continue to explain the liability which that law appears to impose in terms which can no longer command an intellectual assent and refuse to refer it directly to basal principle?’®> Frankfurter was so impressed by this judgment that he wrote, ‘You have done legal candor a great service in proving so persuasively that we can dispense with obfuscating fiction when it needlessly bedevils the law’.® The Privy Council had granted leave to appeal, and then overturned the High Court’s decision, in a murder case, Attorney-General (South Australia) v Brown.’ When Frankfurter read the judgment, he wrote, I had forebodings leave... and their the standards that have thought that

when I saw that the judgment vindicates guide the Board in it raised issues that

Judicial Committee gave special my worst fears. I am ignorant of taking such a case, but I should would commend themselves to

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their Lordships’ abstention. I can well understand that they would want to review convictions to assure protection for an accused in territories still subject to British control. But as to matters of criminal law and particularly where the decision goes in favor of the accused, I should think they might leave the Australian judiciary to have the last say. The judgment of your Court, the writing of which I attributed to you, showed, if I may say so, due regard for more modern psychiatric thinking without jettisoning the rule in M’Naghten’s case .. . As a matter of fact, bad correspondent as I am, I blame myself for not having written to you

about the Brown judgment, for I rejoiced in it as reflecting a wise judicial adaptation of an old formula, in line with your other applications of M’Naghten’s Rule in your excellent charge in R. v. Porter, and your opinion in Sodeman v. The King.®* Dixon’s judgment in Attorney-General (South Australia) v Brown should be

read alongside his 1957 criticism of the formula-bound M’Naghten rules which had ‘deprived the common law not only of its capacity for development, but even of its accustomed flexibility of application’ while ‘The growth

of modern knowledge on the whole subject has meanwhile deprived the terms in which the formula is expressed of practical meaning’. He had recently written to Lord Pearce to say that ‘The dominant consideration with me is to preserve every tie with England and this is one of them. But the difficulties of doing it grow. The wireless says that there is now a plan

afoot to reform the Privy Council and bring Africans into it’. He noted that

‘the plan includes a proposal that the Board should be itinerant’, but Australians would not stand for visiting judges which, he told Lord Pearce, would give the Board an entirely different aspect compared to the carrying of appeals to the centre. And he repeated his belief that the Board should

take ‘great care in granting special leave’, avoiding, as far as possible, cases involving federalism.” Though he did not spell this out for Pearce, he now favoured entrusting the High Court with the power to give leave as a con-

dition precedent.”!

In February of 1960 he flew to Canberra for the swearing-in of Viscount Dunrossil as Governor-General, replacing Slim.” Two weeks later Evatt was sworn in as Chief Justice of New South Wales. Commonwealth

Solicitor-General Sir Kenneth Bailey visited Dixon that day, observing

that the Press had failed to see that what was important in the Petrov case was not that E. was excluded but that he asserted that there was a conspiracy against him & reiterated it over & over again. I said that what was more significant was that he believed. He replied ‘8 still does’[.] He said that E. was mentally wrong: psychotic. I agreed & said

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he was cruel & wicked. He said few could know as he did how wicked he could be[.] I was surprised. Watt came to dinner with us. As to Bailey he & Alice agreed there was some motive for this declaration.”> Dixon

was concerned

that Evatt,

a Privy

Councillor

since

1942,

might

become bored sitting on the Supreme Court of New South Wales and choose instead to sit in the Privy Council on appeals from the High Court of Australia, in which event ‘I think the heavens would indeed fall’, he told Lord Pearce.”* That same month judgment was delivered in an important case involving section 90 of the Constitution, Dennis Hotels Pty Ltd v Victoria.’ Sec-

tion 90 excludes the States from two forms of taxation: customs and excise.

A key problem was the definition of excise. In 1904 the High Court, in Peterswald v Bartley,’® had defined it as analogous to a customs duty imposed in relation to the quantity or value of goods at the point of production or manufacture, but in 1938 Dixon had argued for a wider defi-

nition of excise extending to taxes on the distribution and sale of goods, and in 1949 his view had been accepted.”” Now, however, in Dennis Hotels, a

4:3 majority decided that one of the two types of Victorian liquor licence in dispute was not an excise on liquor and therefore not invalid under section

90 because the criterion of liability was merely renewal of the licence to sell,

not the amount of liquor sold over the previous licence period (even though that formed the basis of calculation of the fee, which of course was passed on to the customer in the price of liquor). Dixon in dissent argued that prac-

tically it was a tax on liquor—that

because of the provisions of the Licensing Act no liquor can be bought by retail in Victoria unless in respect of it someone has paid, has become liable to pay or will be placed in a situation which will from the necessity of the case involve him in paying to the Victorian Treasury an amount equal to six per cent of the wholesale selling price of the liquor. That proposition means to me that the provisions impose an excise duty within the meaning of s. 90. It is a tax. It is a tax ‘upon’ the goods. It is the kind of tax which tends to be recovered by the person paying it

in the price he charges for the goods which bear the imposition.”*

He was unable to carry his Court, however, with Fullagar making a strong case for a return to the Peterswald definition of excise. This case would have important fiscal consequences for close to forty years. Dixon’s dissenting judgment would be subjected to criticism from conservative lawyers,” but

after thirty-seven years his arguments would be accepted by the Court.*°

12

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In early March of 1960 he was staying at Government House in Hobart along with the Governor of Western Australia, Sir Charles Gairdner, who

raised a problem for his consideration, showing him relevant documents. The Western Australian Electoral Act required the Chief Electoral Officer to report population changes which must result in changes to constituencies.

This report had come in before the 1959 election, which Labor Premier

Albert Hawke

had lost. The Governor

had proclaimed

the changes

as

required by law, but following the election of David Brand’s Liberal Government a bill had been hastily passed annulling the proclamation ‘as if it had

never been in operation’. Promises had been made to pass a new electoral law, but Brand had lost the support of an independent and could not do it. Now Hawke, as Leader of the Opposition, was demanding a new proclama-

tion from the Governor on the ground that the old report of the Chief Electoral Officer must be acted upon. Dixon advised Sir Charles that he must act on the advice of his Government, but that he could, as he wished to do, say that he thought the Chief Electoral Officer should make a new report.*!

On 4 April 1960 Dixon delivered an oration on ‘The Profession of

Accountancy’ to the Second Asian and Pacific Accounting Convention. It was a topic on which he spoke with brilliantly subtle wit, implying that accountants deal in ‘unrealities’ (a polite way, perhaps, of saying they devise unreal schemes for the purpose of avoiding tax) and that their efforts are ‘inscrutable’ (hence the need for auditors, presumably). Dixon clearly knew

something about this profession, though it was not close to his heart.

Criminal psychology was another matter. Later that month he found himself dining at the Australian Club in Sydney with a Dr Eakin, ‘with whom afterwards I talked until late. He says that his criminous patients are not affected by fear of punishment as a deterrent. Judges don’t understand. Nothing can be done. After a time it is mental’. They talked again two weeks later, ‘for a long time’.*? Dixon had always enjoyed the company of medical men, far more than politicians with one or two exceptions. Victorian Premier Henry Bolte was not one of these. At the Queen’s Birthday dinner at Government House in Melbourne Dixon sat next to him and tried to talk to him about federal constitutions being the products of effete and rigid eighteenthcentury concepts of the demarcation of powers. As a comment on Enlighten-

ment political thought this had some validity, but Bolte knew nothing of

such things: ‘failed to get him to understand I was not aiming at unification ... Very lacking in knowledge of the machinery of govt: mind energetic but stupid & uninformed’.*? In his 1952 judgment in Stapleton v The Queen Dixon had questioned

whether it was a necessary presumption ‘that a man intends the natural

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consequences of his acts’.** He was confirmed in this view by what he saw as the wholly wrong judgment in an English case, Director of Public Prosecutions v Smith.*’ Dixon’s associate at the time, James Merralls, remem-

bers Fullagar coming in and saying, ‘Well, Dixon, they’re hanging men for manslaughter in England now’.** Dixon wrote to Frankfurter that In every part of the British Commonwealth where the common law is supposed to prevail the case has created great trouble, indeed sometimes almost indignation. We have quite a good Solicitor-General in Victoria. It is his business, so to speak, to oversee the administration in this State of the criminal law. On reading the judgment he came to me and asked me how he could stop judges in his State acting upon the decision of the House of Lords. He said the decision was contrary to all principle and in the State Court of Criminal Appeal he would not support a conviction based on it. I replied that he could comfort himself with the thought that the High Court would not follow it while I was there. At the time I read it I did not verify any of the references but I have since learned that there is a striking error in the citation of The Queen v. Faulkner (1877) 13 Cox

C.C. 550. The quotation from Palles C.B. is of course correct but it is only a dictum and the actual decision was to the contrary of what Lord Kilmuir stated. Indeed it is a reasonably good authority in favour of the prisoner. The responsibility of any court in a capital case is unenviable and one does not like to criticise the judgment but if a man is to be sent to the gallows it is a little unsatisfactory to feel that a factor contributing in however small a degree to his hanging was an erroneous citation.®”

It would not be long before Dixon would have the chance to pronounce

publicly on this case, in his 1963 judgment in Parker v The Queen where he would say, with the full concurrence of the Court, that Hitherto I have thought that we ought to follow decisions of the House of Lords, at the expense of our own opinions and cases decided here, but having carefully studied Smith’s Case I think that we cannot adhere to that view or policy. There are propositions laid down in the judgment which I believe to be misconceived and wrong. They are fundamental and they are propositions which I could never bring myself to accept . . . I wish there to be no misunderstanding on the subject. I shall not depart from the law on the matter as we had long since laid it down in this Court and I think Smith’s Case should not be used as authority in

Australia at all.®*

His judgment in Parker v The Queen, unlike that in Mayfair Trading Co. Pty

Ltd v Dreyer (1958) examined above, would give a higher priority to the

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eradication of error than to the unity of the common law. For too long, he admitted to Frankfurter, he had allowed feeling to overshadow reason: It is needless to tell you, I think, that with respect to both Privy Council

appeals and attempts to follow developments of the law in England my leanings towards purity in the common law have been counterpoised by too much British sentiment. I do not know whether you read poor Lord Normand’s errors in London Graving Dock Co. Ltd. v. Horton 1951 A.C. 737, but that was too much for me.*?

Parker v The Queen is one of the most significant of those judgments that

contributed to the respect in which Dixon’s Court was deservedly held. In early February of 1961 Lord Dunrossil died and Dixon flew to Canberra to swear in Sir Dallas Brooks in his temporary stead, pending the appointment of the next Governor-General (Lord de L'Isle). Dixon’s health was still good. The digitalis he had been taking for some time kept his heartbeat regular, and his eyesight was satisfactory. Still, he was almost seventyfive and people were wondering about the succession. Mr Justice Philp of the Queensland Supreme Court told Dixon in March, ‘Australia wants to know

who is your successor: you can’t last for ever’. Dixon turned this around:

‘Who is he?’ Philp replied, ‘No one can see one: no one has one’, then asked what Barwick wanted. ‘I replied by banter’, Dixon noted, ‘saying there was nothing I was more curious about than my successor’. Menzies avoided

ever raising the issue though there were opportunities, such as the belated dinner party he attended in early June for Dixon’s seventy-fifth birthday.*!

Of those on the Court Fullagar was undoubtedly the best candidate but he

died on 9 July of a stroke.” This event deprived Dixon of his closest colleague and must have been a hard blow. It came in the midst of the Law Council’s Convention where the guests included Chief Justice Earl Warren from the United States and Lord Chief Justice Parker from England (Dixon hosted a dinner for Warren at the Australian Club in Melbourne on 17 July). On the 21st he saw Menzies at Parliament House in Canberra about the vacancy, proposing Keith Aickin (now a Victorian QC), Thomas Smith and Alistair Adam

of the Victorian Supreme Court, and William Owen

of the

New South Wales Supreme Court (Dixon’s wartime replacement as Chairman of the Central Wool Committee, and Chairman of the Petrov Royal Commission). Menzies would appoint Owen, a common lawyer with no background in constitutional law, in poor health and too old to adjust to the rigorous requirements of the High Court. Menzies preferred Adam but felt sympathy for Owen, whose life was being made a misery by the vindictive Evatt and who had been shortlisted for the Court for the past ten years.

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barristers’ chambers in William Street, Melbourne,

named

after Dixon, were opened on 16 October. The Prime Minister performed the

ceremony, unveiling the full-length portrait by Colquhoun and speaking in the kindest terms of Dixon and his work. ‘I replied inadequately’, Dixon noted afterwards. The speeches were taped.*

Hancock v Federal Commissioner of Taxation, a 1961 case concerning

section 260 of the Income Tax Assessment Act 1936, should be noticed here,

along with an earlier case, Federal Commissioner of Taxation v Newton (1957), as instances in which the Dixon Court adopted a strikingly different

attitude to tax avoidance from that which would later mark the Court

under Barwick. Together they provide an interesting example of the difference between Dixon’s approach to statutory construction (including constitutional construction) and Barwick’s literalism.™

In early 1962 Dixon’s younger son Ted was given two months’ notice

by Melbourne Steamship Company and Dixon invited him out to lunch on 15 January to discuss things. He did not know how he could help, he said,

but felt Ted needed a new environment and fresh work. It had not escaped

his notice that he had taken to alcohol, ‘which I deplored. I knew the subject

& no man could get out of it’. Dixon said he had no idea what friends Ted

had but he clearly needed new ones. What was he going to do? living, Ted replied, something in connection with ‘freight’—sea, —but eventually politics. Dixon, politely ignoring the last idea, the Australian National Line (to which Ted was averse), road

To earn a land or air mentioned transport

(which Ted thought ‘too chancey’), and railway commerce (into which Ted

said he would inquire). ‘He really had no concrete ideas’, Dixon noted. ‘Nor had I.’ A few days later David Syme of Melbourne Steam saw Dixon to say ‘He would feel worried in our position’.* Dean Acheson, whom President Kennedy had effectively put in charge

of appointments to the State Department following his election, visited in

company with his wife in early February. The Dixons drove out to Essendon Airport to meet them, finding the Caseys there too, and they all lunched at the Lyceum Club as Maie Casey’s guests. ‘The Achesons were very easy & it was like old times’, Dixon observed. In the afternoon he went into conference with Windeyer and Douglas Menzies over current judgments, then in the evening gave a dinner for the Achesons, Lord Baillieu, the Windeyers, the Douglas Menzies, the Aickins, lan McLennan

(General Manager, BHP)

and his wife, and Richard Searby. The following day he and Alice took the

Achesons to the Yarra dam for a hamper lunch, Acheson revealing ‘how he

had left the Treasury because he could not obey Roosevelt’ on the policy of

depressing the gold standard of the dollar, how he had met Roosevelt again

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on the day of Frankfurter’s ratification, how he wrote a speech in the

Wendell Willkie campaign of 1940 and was chosen to be judge of the Circuit Court of Appeals for the District of Columbia, refusing it. He had befriended Earl Warren who ‘was no good as C.J.’, though now less dominated by Black. The talk ranged over a large area of the law, lawyers and politics. Two days later Acheson addressed the Australian American Association, arguing that most people still looked at the world from a nineteenth-century perspective. But all the empires had gone, leaving the Balkans, the Middle East and

much

else in chaos. Western

power

alone,

he believed, could

counter the threats to peace and security, not pious faith, not morality.°*

It was Acheson who a few months later informed Dixon of Frank-

furter’s stroke. It had crushed his spirit, though he was still refusing to retire: Two weeks ago the President, at his own request, paid Felix a visit. The latter was in a rare flutter about it, and I was summoned to an almost

daily meeting to decide some vital matter. Where should the President be received? In the living room. Should Felix stand when the President came in? Yes, he could and should with help. What refreshment should be offered? Tea. I must be there as Chief of Protocol. Agreed. It went off very well. The President behaved beautifully. He was warm and deferential, letting Felix have the floor and showing great interest in all he said. At the end he asked to be allowed to come again. I thought that this visit would give him a great boost; and for a few days it did. But then, as I have said, the spirit just seemed to ooze out of him. It is heartbreaking to see that invincible vitality tamed at last.

He had lost even the desire to see people.*”

August saw judgment delivered in the Cigamatic Case, in which Dixon,

taking the majority with him, argued that the Commonwealth had priority over States with regard to payment of debts in company bankruptcy proceedings. He cited his (dissenting) view in Uther’s Case (1947), when he had written that A federal system is necessarily a dual system. In a dual system you do not expect to find either government legislating for the other. But supremacy, where it exists, belongs to the Commonwealth, not to the States .. . The Colony of New South Wales could not be said at the establishment of the Commonwealth to have any power at all with reference to the Commonwealth. Like the goddess of wisdom the Commonwealth uno ictu sprang from the brain of its begetters armed and full of stature. At the same instant the Colonies became States; but whence did the States obtain the

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power to regulate the legal relations of this new polity with its subjects? It formed no part of the old colonial power. The Federal constitution does not give it.”

The States, that is, had no power to bind the Commonwealth. The Cigamatic Case, in which the Dixon view was accepted, is still a controversial case on

various grounds, and an example of his alleged ‘centralism’, though the term is misleading if it is intended to imply anything about his political sympathies. It was a position arrived at logically.” In October Tait’s Case was making news in Victoria. The previous December Robert Peter Tait had been tried for murdering an old lady. The crime had been particularly sadistic. Defence counsel had argued temporary insanity but he had been convicted and sentenced to death, the Full Court

of the Victorian Supreme Court refusing leave to appeal in February 1962. In May the High Court and in early October the Privy Council had also refused leave to appeal. The execution was scheduled for 22 October, and Premier Bolte was said to want a hanging. Tait’s only chance of life depended on the new Mental Health Act 1959, which replaced the concept of ‘insanity’ under the old Mental Hygiene Act 1958 with the softer concept ‘mentally ill or

intellectually defective’-—not that Tait was intellectually defective: his IQ

was 95, well within the range of normalcy. However, this belatedly proclaimed Act would only become effective from 1 November. On 15 October a petition to Mr Justice Gowans seeking a Court order for an inquiry into Tait’s alleged insanity (under the 1958 Act) was rejected, an appeal on this

matter to the Full Court was then heard and the hearing concluded on 19 October, judgment being reserved and the Crown undertaking to defer the execution pending the Court’s decision. Meanwhile an application had been made to the trial judge, Mr Justice Dean, requesting him to exercise his common-law power to order a similar inquiry, and he reserved the application for the Full Court. The Full Court dismissed the appeal from Gowans and said it had no jurisdiction in the matter raised by Dean, who on the evening of 30 October began hearing the application. By now the execution had been rescheduled for 8 a.m. on 1 November, effectively about four

hours before any action under the new Mental Health Act could be taken to

force the Government not to proceed with the execution, and at Pentridge

Prison Tait’s grave was dug and ready. Under pressure of time, at 10.30 p.m. on 30 October Dean rejected the application. The following day applications were made to the High Court for special leave to appeal from the recent decisions of the Full Court of the Supreme Court and of the trial judge. It was argued that the execution would be stayed if the inquiry sought under the 1958 Act revealed insanity, and that

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the High Court should adjourn the present proceedings until the applicants had a chance to prepare their case against the Full Court. But the key question was whether the High Court had the jurisdiction to order a stay of execution under the High Court Procedure Act 1903. Dixon relieved their anxieties on this point: the question of jurisdiction was irrelevant: ‘I have never had any doubt that the incidental powers of the Court can preserve any subject matter, human or not, pending a decision’. A stay on such grounds —indeed a stay at all at that stage—was unprecedented. It is, perhaps, odd that that should be so, because Dixon’s discernment of the incidental powers of the Court has never been effectively criticised. With all his capacity in constitutional cases and in equitable doctrines, he was also the outstanding common lawyer of his day and one of the greatest of all times. His grasp of the common law was unerring.

He then announced:

We are prepared to grant an adjournment of these applications without giving any consideration to or expressing any opinion as to the grounds upon which they are to be based, but entirely so that the authority of this

Court may be maintained and we may have another opportunity of

considering it.

We shall accordingly order that tomorrow morning be not carried of the applications to this Court this Court in consequence of such

the execution of the prisoner fixed for out but be stayed pending the disposal for special leave and of any appeal to applications.

He asked the Crown whether this order would be enough. Sir Henry Winneke replied he thought it would, but could offer no guarantee, where-

upon Dixon virtually invited him to ask for a further order, which Winneke

did, Dixon then declaring that ‘At the foot of the order we have already pronounced, we will add that we will order that the Chief Secretary and the

Sheriff and his deputy or deputies be restrained accordingly’.'

Further

hearing of the applications was adjourned to 6 November. He then super-

vised the drawing and settling of the order himself, summoned the Court’s

Marshal and instructed him to put the order directly into the hands of Sir Arthur Rylah, Deputy Premier and Chief Secretary. As S. E. K. Hulme has pointed out, ‘That these precautions were soundly based was recognised

when it emerged later that the redoubtable Sir Henry Bolte asked in Cabinet what the legal position would be if they went ahead with anyway. Premier and Cabinet were advised that the essence of murder lay in the deliberate and unlawful killing of one person In the event, Tait’s sentence was commuted and he died in gaol

the hanging the crime of by another’.? twenty-three

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years later. For Dixon it was a question of the Government’s respect for the law and the Courts, and ‘whether we should allow the State to evade our

jurisdiction by hanging the man tomorrow’.’ He particularly deplored the fact that the Victorian judges had allowed themselves to ‘be harried and

bullied by state politicians’.

Dixon’s last full year in office, 1963, was relatively quiet. Lord Devlin was in Australia during January and on the 31st he and Lady Devlin visited ‘Yallambee’ for tea. Dixon told him that although there was support in London for the idea that a member of the High Court sit on the Privy Council, no one could be spared.’ In Canberra for Queen Elizabeth’s arrival in mid-February, he took the opportunity to see the Prime Minister on the 19th to tell him he thought he had ‘come to the end of my tether: he was the only man to succeed’. Menzies made no comment on that. Dixon said he was tired but it was impossible to leave things to the others. Three weeks later he heard from Douglas Menzies that the Prime Minister felt himself to be no longer qualified for the post and that ‘I was not to be worried & was to go on’.§ In May his physician pronounced him fit to continue but a few days later he fell on the way to the bathroom, badly hurting his thumb. He was advised that the ‘episode’ was ‘vascular’ in cause and to take a month off work.’ The injury to the thumb badly affected his writing, a serious matter because his judgments were composed in longhand.

It was at this time that he learned that he was to be admitted into the Order of Merit, an honour exclusively in the gift and choice of the sovereign. Lord Simonds wrote in June, That is the honour above all honours which is worth having and which has never been degraded by an unworthy recipient. It has never before, I think, been conferred on an occupant of the Bench, tho’ an academic

lawyer (Holdsworth) had it. And how fitting it is that it shd first be conferred on you! That is the sincere opinion of all of us here—and particularly of those whose opinion counts because they understand the mighty contribution you have made to the law.®

Dixon, tired and increasingly frail, felt unable to undertake the trip to London. The OM was conferred by the Governor-General, William Philip Sidney, 1st Viscount De LIsle, on 2 April the following year.

Among Dixon’s judgments in 1963 one might note the one he wrote

for Chapman v Suttie, the last section 92 case he decided. It is significant because it showed that he regarded the principles governing the application of the section as settled by then, and concentrated on the minor premises.” In mid-January of 1964 Dixon came across the Prime Minister at the Windsor and told him he would like to arrange a meeting, preferably in

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Melbourne. Just under two weeks later, on 1 February, Menzies came out to

‘Yallambee’

where

Dixon

reminded

him

of their conversation

of the

previous year. He felt he ‘was done’ and had decided to resign without undertaking another year, in fact he wished to go before Easter. Menzies

agreed he should ‘call it a day’, and that after retirement he should retain the use of a car ‘& any thing else & all utilities’. Significantly, ‘Nothing was said of my successor’.!° The work of the High Court ‘was now pedestrian’, Keith Aickin observed that February, Dixon replying ‘I’m afraid so’.!' Dramatic con-

stitutional cases seemed a thing of the past thanks to a twofold continuity—

an uninterrupted fourteen years of stable Menzies government and Dixon’s twelve years at the head of the Court, which had given it a stability of its own founded in subtle guidance and carefully developed, well-understood

principle and doctrine, though occasionally a case could seriously divide the Court. The Dennis Hotels Case of 1960, in which the Court divided 4:3 and

3:4 on parallel points, is an example—it involved a sharp difference of opinion between Dixon and Fullagar, and between Fullagar and the other members of the majority on the main issue.'* On 25 March in Sydney Dixon delivered his last reserved judgment, in Atkinson v Custom Credit Corporation, an unreported appeal. Then, after telephoning Menzies, he wrote out his resignation and handed it to his associate, Ian Spry, who took it down

to Kirribilli House and delivered it into the Prime Minister’s own hands."?

Against Dixon’s wishes but on the insistence of the Prime Minister, aided and abetted by Lady Dixon, there was a formal ceremony to mark his last day on the Court." It was held in Melbourne on 13 April, fifteen days

before Dixon’s seventy-eighth birthday. Sir John Latham, Dame

Pattie

Menzies and family members gathered in Dixon’s chambers, and at 10.30 a.m. Dixon and Latham led the way in and all took their seats, family members in the jury box, High Court Justices and Latham on the bench, and behind them the judges of the Commonwealth Industrial Court and the Victorian Supreme Court. At the Bar Table sat the Prime Minister, his Attorney-General Billy Snedden and Solicitor-General Sir Kenneth Bailey, together with the Victorian Solicitor-General Sir Henry Winneke and other prominent lawyers. Menzies spoke with genuine feeling and typical humour. Dixon’s speech has been quoted extensively in preceding chapters. It blends autobiography with a historical survey of the Court and its Chief Justices, and is also typically humorous. The occasion, he insisted, was not my doing. I would have thought it satisfactory to all of you that the Chief Justice should just disappear. But the Prime Minister was kind enough

to come

to my

house

and

to take a different view, and

his

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authority is high—although I would like to point out that under the Constitution it technically does not exist over this Court. Perhaps being conscious of that fact, he enlisted more imperative authority, to whom

he has already referred, and between them this day was ordered. I gather by the fact that you have attended in such numbers that it was satisfactory to you to have my decision reversed on that occasion."

He offered frank insights into the personalities of the Chief Justices, but said

comparatively little about himself, most of it self-deprecating, with references to ‘rewards which I do not deserve’ and to physical decline:

I wish to say that in writing to the Prime Minister saying that I must go I put it entirely on the ground that I myself had judged myself no longer able to carry out adequately the duties of the office. Years had passed, thirty-five years, and I am not one of those who subscribe to the view that the older you get the better you get. I think that is wrong. I believe in young everything. I thought that I had got too old and was deeply conscious of the fact that I was not doing my work adequately.'*

He had felt that way since late 1962.'” Just three weeks into retirement he wrote to Frankfurter that he would not be visiting America again—he now felt too tired even to contemplate overseas travel. He had retired because he

had concluded

that it was no longer in me to go on with the kind of life I would choose —judicial work and an occasional excursion abroad. The manner in which I thought that the work should be done involved a lot of laborious inquiry into the state of the facts, which had to be done behind the scenes—to say nothing of writing an intelligible and concise text. I found attempts to do this were becoming too protracted. Moreover, my right hand was not easy to manipulate as theretofore."*

One of numerous correspondents sending best wishes wrote a few days later

applying to Dixon an ode of Horace’s claiming a monument impervious to time and the elements, but to Dixon that was nonsense: ‘I have not made

any memorial’, he believed, and if he had ‘I prophesy it will not last’.'9

13

‘I KNOW,

REALLY,

RETIREMENT 1964-1972 quite well what is worth reading in the Common-

wealth Law Reports and what is not; but still 1 am not going to take to reading them’, Dixon had told his farewell audience,’ and it is doubtful he ever read another law report. ‘My real interests’, he told one correspondent shortly after retirement, ‘did not begin with the law and they will revive

now although backed by very much impaired knowledge’. A few days later he wrote to another, ‘A return to the interests which I possessed before law

became not only an interest but a necessity has led me to think that I have

wasted a great deal of time’. And he would not be writing memoirs.” No, he

would polish his Greek and Latin and read his way back into the classics and their world, beginning with the Oedipus Tyrannus of Sophocles. He would also spend more time with his wife. For his seventy-eighth birthday she wrote on the card, To Owen dearest, With birthday greetings and happy more healthful, peaceful anniversaries ahead of us for years to come. With the faithful devotion and love of 44 years—which shall continue to the end. With my admiration for your achievements, and for all that you have been as husband father and grandfather. From your ever loving wife Alice.}

Yet he could not be indifferent to the fate of the Court. Ten days after retirement he learned from the newspaper of Barwick’s appointment as Chief Justice. He was appalled, noting in his diary that evening, ‘It seems that it was decided late at night by Cabinet. B. was to have left on a diplomatic

IRE

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tour including Moscow this morning: it was cancelled. The family will not accept my interpretation viz that R G was against but at length was overruled’. That he should contrive to imagine such a thing suggests how much

Menzies’ friendship meant to him. The next day Douglas Menzies called at

‘Yallambee’ for a chat. Dixon, presuming the cousin had been made the gobetween, told him that Barwick’s appointment and McTiernan’s ‘were on the same plane. All my concern was how was the P.M. implicated. He said he had asked B not to request it but had said that he must have it if he did’. Dixon relayed this to Kitto, saying Barwick’s way would be to decide the cases ‘rather than to decide them rightly’. Kitto said he could understand Dixon’s feelings. He would work with the new order but if things went bad he might have to resign. Dixon told him ‘it was the P.Ms degree of complicity that mattered to me’. What had happened was that Barwick, resigned to the fact that Holt and not he would succeed Menzies,

had asked for the

Chief Justiceship as second prize. Menzies, having enticed him into politics in the first place, felt he had to comply. It is not clear whom Dixon hoped would succeed him. It may have been Aickin, but if so, why did he not push for him with Menzies? Out of propriety? In any case there can be no doubt that Dixon regarded the appointment of Barwick as an act of betrayal by Menzies of all that he had striven to achieve in his long career on the Court. Months passed and little happened. Most days Dixon went in to the Melbourne Club (of which he was a Trustee) for lunch and to read in the

library there, generally something on ancient history or classical literature. Latham died in July. In August John Oldham, formerly of External Affairs, called on behalf of his friend, Deputy Prime Minister John McEwen, who

had discussed with him the choice of a new Governor-General. Was Dixon’s

health too bad, McEwen had wondered. No, Oldham had replied, Dixon was the right choice. So McEwen had asked Oldham to fly down to discuss it with the former Chief Justice, concerned lest Menzies appoint an English-

man. Dixon’s answer was a

flat ‘No’: ‘I said that I was too old & that he

should tell McEwen that “Caesar hath sent too late a messenger”’.® Casey would be appointed instead. On 10 September Dixon was awarded an honorary Doctor of Laws by the Australian National University. As his energy gradually diminished he shed some of his responsibilities: his chairmanship of the Commonwealth Fund (Harkness Fellowships) and of the Felton Bequest Committee

were soon relinquished, though he con-

tinued to take an interest in the English Speaking Union and the Canadian Australian Developmental Committee, and occasionally to preside over meetings of the Australian Institute of International Affairs. He was also on

the Appeal Committee for the Ian Clunies Ross Memorial Foundation to

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raise money for the construction of Clunies Ross House, and continued his presidency of the Australian section of the International Commission of Jurists, which he had first accepted in 1957. The last year he kept a diary was 1965. It is not very interesting, record-

ing the visits of former associates and others, and lunches and meetings in

the city. It provides no record of continued reading in the classical authors, though just the previous year he had read a copy of Herodotus’s Histories right through (in Greek, of course).’” His eyesight was slowly weakening, and

though with some difficulty he would read for a few more years, he would

finally have to rely on Franklin to read to him. The most interesting entry comes on 4 May: In the evening Sir Frank Kitto rang up. He was very miserable: he cd not get on without me: he was tired of those who laid about & smashed things in a china shop [because] they did not like them: he thought of resigning but then! (aposiopesis)[.] I sd to do his own work & ignore those who did not know[.] He[:] But nobody knows. I said of course I know that. I returned to the recommendation to do his best for himself & decide what was right{[.]*

Compare this with David Marr’s imaginative idea that thought Barwick a prodigious lawyer, stood when he came came when he called’.? Absent in the new Court were those enliven the dullest of minds, to widen everyone’s horizons,

‘His colleagues into the room, ‘experiences to and to promote

enthusiasm for work, for good fellowship and for co-operation in service to

all people interested in thinking’. That year Severin Woinarski put together the collection of Dixon’s papers and addresses that goes under the title Jesting Pilate and saw them through the Law Book Company’s press. It was also the year Felix Frankfurter died. Dixon’s other close judicial friend abroad, Lord Simonds, continued to write, but Dixon seems to have had

little correspondence with anybody after 1966. There was a good reason—in 1966 he suffered a severe heart attack, at the age of eighty. It left him weakened in his left arm and leg but did not affect his brain, which would remain sound until his death. From now on he

would use a walking frame. Fortunately Alice’s health was much better than his and she was able to nurse him, though it tired her. Most days through these final years he would confine himself to his armchair, reading or occasionally watching television. In 1970 he was elected a Corresponding Fellow of the British Academy. Also that year he corrected the chapter on himself in Sir Robert Menzies’ The Measure of the Years.'' The only legal work he read after his retirement was his former associate Ian Spry’s

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Equitable Remedies, the proofs of which he went through in 1970 and which he admired." He had kept most of his personal papers, and of course his long run of diaries, but it is unclear precisely what fate he intended for them. In late 1970 he received a letter from A. P. Fleming, the National Librarian, saying he understood that Dixon had agreed that his papers should go to the National Library to join those of Isaacs, Higgins and Latham. Dixon replied, ‘There appears to be some mistake. I did not give my assent to any proposition about the disposal of my personal papers, and I will not do so. I was not aware that Sir John Latham had disposed of my personal private letters to him from Washington, and certainly it was not my intention that he should do so’.!? It is quite possible that Dixon would have

destroyed the diaries and much of his private correspondence had he believed

they would ever end up in the National Library, for they are replete with intimate details of family life. Nevertheless he preserved them. The question of their ultimate fate is still open. Dixon survived Alice, who died on 23 September 1971, a severe blow to him. Russell Danby, one of Betty’s sons, remembers her final hours: When my grandmother died we were called down at the last moments before she actually died. We were still quite young, and very nervous about going in and seeing her lying in bed. Mum said, ‘No, it’s all right, she’s asleep’, so we went in and it was true, there she was with a very serene look on her face, very calm. She just looked so peaceful, went off to sleep and died. Grandma’s father was a minister and she had a concept of life after death. She was prepared to go.'* Dixon told a visitor ‘The local doctor examined her—’, the sentence trailing

off as though he blamed himself for not getting her to a specialist in time. The visitor recalls, ‘He didn’t look good’.'5 Now he was there in the big house with just Franklin and the housekeeper for constant company, and thoughts about the past, and eternity. There was the occasional visitor or two: High Court judges when in Melbourne, Sir Edmund Herring, Sir Robert Menzies and his brother Frank, former associates—most often Keith Aickin, John Young, James Merralls and Tan Spry. Among the High Court judges who visited was Sir Douglas Menzies, who afterwards asked Merralls whether he had been to ‘Yallambee’ recently,

adding that ‘The best thing that could happen for everyone there would be

for someone to put a bomb under the whole place’—it was as depressing as that. Every day was the same as the last, twelve or more hours in the arm-

chair, in his dressing gown, until helped back to bed at night. ‘He looked

depressed, was depressed, and was dressed to be depressed’, a friend recalls.'*

13.

RETIREMENT:

1964-1972

289

In mid-February of 1972 Sir Robert Menzies, in hospital recovering from a stroke, had the idea of sending a taped message to his old mentor, now almost eighty-six. A cassette recorder with built-in microphone was brought to his room. Propped up by his pillows Menzies pressed the ‘record’ button and began speaking. When he was finished he handed the recorder to his driver, Peter Pearson, who took it around in the old black Bentley to ‘Yallambee’ where Dixon listened to the tape. ‘My dear Dixon’, it began, Iam sorry that it has only just occurred to me in the last day or two that I could really have a little talk to you on this machine. I would not have felt much like it a few weeks back, because, when I first came in here, it

was made quite plain that I had a 50-50 chance of effecting a recovery which would enable me to walk around and resume a normal life. But,

in the last few weeks under the good offices of the physiotherapists, I have been making a recovery, and it now seems that, barring accidents or some unexpected relapse, I will, in due course, be able to walk again,

and use my own arms, and live a perfectly normal life once more. This is, of course, a very satisfying prospect, although I have to realise that it is a slow job, but every week sees some improvement in my arm, and in my leg, which, some time back, were completely dead and unresponsive to any kind of treatment. So, in effect, and I apologise for talking so much about myself, I would believe that I will be in hospital for another two months, if it is three I don’t mind, because I don’t want to go home until I can walk in

my own door, and around my own garden, and have the use of both hands, and be able to look after myself. But I have been thinking about you a great deal. I saw you the day before I went away, and I fully designed that I would come to see you about a week after my return. But instead of coming to see you I was brought in a very different direction into hospital with this very, very severe stroke from which, as I say, 1 am slowly but I think surely emerging. My brother Frank calls on you, I know, and I have been interested to

hear from him that you very frequently make enquiries about me. Well, Ican assure you I have thought of you a great deal. I have thought of you in a very real fashion when Alice died. I knew what that meant to you,

but I am very glad to hear that you have come through that, and that you are now maintaining what to me was always remarkably good form, and a keen interest in life. I assure you that when I come out of this place, on my terms, which ought to be in two or three months, one of my first errands will be to get into the car, and get Peter to drive me over to have a look at you, and a talk with you.

290

OWEN

DIXON

So I look forward to that time, and I just wanted you to know that every day since I came in here I have had occasion to think about you, as you well know, with great respect and with great affection. So 1 send you my good wishes, and hope to convey them in person before very long.

With Pearson manipulating the cassette recorder Dixon replied: Thank you very much for your message. It was marvellous to hear you; Owen Dixon talking. Well, it was good to hear you talk so clearly and well, and I am delighted to hear that you are making progress. The last time I lost consciousness and I asked our doctor what went wrong with me, and he

said ‘Oh, just bad luck’. And I can only say to you, you sound as though you were going to have good luck. Isit here quite content but, of course, the loss of Alice was a sad blow.

We had arranged between us that I should die first, but we didn’t keep to the arrangement, and—However, | sit still, and having been told that all is bad with me, and with bad luck, I am not looking forward to anything, because I never had any luck, as you know. Well, it was delightful to hear you, and all I can say is that you take a great deal more interest in the outside world than I did, but you saw more of it than I did—And so keep going, and keep your pecker up—And our friendship means a great deal to me—And my eyesight is not good enough to read myself, really, and I recommend books to you. I have read I don’t know how many. You go on reading books, they are the thing. Well, good bye and good luck.

A few weeks later Menzies repeated the exercise, promising that on his return home ‘my first port of call on an individual will be on you, sitting in that house of yours, so I warn you to be ready’. He was reading Dickens and Fielding. Dixon’s reply was happier than the first. He talked about books— Franklin had read to him ‘I don’t know how many books . . . it runs into hundreds, and we have read almost everything, but his great feat was to read Gibbon’s Decline and Fall of the Roman Empire to me aloud. It took a very long time, but he read the whole of it . . . only Franklin could have undertaken the huge task’. He reflected on the past, saying he still felt Menzies should have remained at the bar. ‘I stayed at the bar, and I enjoyed my active life— But my active life is over, and I am happy still.’!”

The transcripts of these tapes constitute the last of Dixon’s outbound

‘correspondence’, and information about his final few months depends on the memories of surviving family and others. His daughter Betty, who visited most days, noticed Franklin becoming increasingly fractious, and once said

13

RETIREMENT:

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291

to her father how sorry she was. ‘It isn’t funny, I can tell you’, he replied,

which she remembers

because ‘It was the nearest I ever heard him to

grumbling’.!* Russell Danby, working at that time in Hawthorn, sometimes

visited his grandfather for lunch to lift his spirits:

Franklin very often was in his room, or in bed. He’d come out when he heard the door bang and fossick about in the other part of the room, or be looking for a book, or making a comment or whatever. But eight or nine times out of ten it was just grandfather and I. He was interested in what was happening in the world. How did younger people feel about education, or about the Americanisation of the culture as reflected on TV? What was the attraction of going to discos? ‘What’s happening outside these hedge walls?”!?

Lord Denning was in Australia just a few months before Dixon died. ‘I was rather sad, upon visiting him at his home near Melbourne’, he recalled in 1998, ‘that a man of his outstanding ability should be so reduced in health

in his latter years’.2°

Frank Menzies told his sons that Dixon had said during a visit in these months, ‘Well, you'll have to go, I’m afraid, I have to be saying my prayers’, and his daughter Betty Danby recalls him telling her something similar.?! It is difficult to know what to make of this, because it is exactly what an old person with Dixon’s sardonic wit might say as a nice and entertainingly

elliptical way of indicating that he was tired and his interlocutor need not feel obliged to hang around. On another occasion, however, in response to something Betty Danby had told him he replied ‘I'll tell Mum’.” In any case

he never asked the local vicar around for a talk.” Dixon died on 7 July 1972 of congestive heart failure, struggling for

breath. The family declined the offer of a state funeral. Canon Holt of St Mark’s

in Camberwell

handled everything ‘extremely well’, Betty Danby

thought, making no pretence that the deceased had been a churchgoer. Dixon was buried in Boroondara Cemetery at Kew beside his wife and parents. His estate was valued for probate at $176 571.99, and with some of this to support him Franklin moved into a flat in the suburb of Armadale. ‘Yal-

lambee’ was sold to Preshil School and gutted, though the outside would

survive unchanged. In 1977 Franklin joined his parents in the Kew grave, followed by Ted in 1996. Anne died in Adelaide in 1979, relatively young,

and Betty celebrated her seventy-fourth birthday in late 2002.

14 THE MEASURE OF DIXON'S GREATNESS MANY

OF THE QUALITIES that made Dixon a judge of the highest calibre

are displayed and reflected in previous chapters, but a brief stocktaking may

be in order, a convenient if inelegant list: at base, an unquenchable thirst for knowledge; an unequalled knowledge of the law, its principles and history, his experience comprehending the common law (in three areas of jurisdiction, England, the United States and Australia), equity, and public law—a combination realised by few if any others; a prodigious memory enabling him to

recount with complete accuracy the details of the innumerable cases he had read; a capacity for the penetrating analysis of facts and legal decisions; a deep and extensive reading in the classic Greek and Latin texts, and also in

modern history and biography; a profound interest in and knowledge of men and affairs; a deep understanding of human nature, including a healthy scepticism as to the motives and purposes of individuals, yet with all that a deep human sympathy; an adherence to particular standards of conduct and a punctiliousness not only in larger matters but in matters of propriety and manners; a complete independence of thought; a strict adherence to legalism,

in essence the application of the law to ascertained facts; the capacity to

express himself with great precision and accuracy; the determination to do justice according to law, but with it, a capacity to see how the law can, con-

sistently with principle, reflect changing conceptions of justice and con-

venience, as expounded in his paper ‘Concerning Judicial Method’. Other judges, of course, possess some of these qualities. It was their combination in one person that produced such a remarkable intellect and made Dixon

292

14

THE

MEASURE

OF DIXON’S

GREATNESS

293

unique.' In the terms of his favourite Latin poet he was ‘entire in himself, well-turned and polished, rounded off’.

To those qualities one other must be added: leadership. Dixon’s leadership was of a singularly intellectual kind. In the High Court, on the wartime boards he chaired, in the Washington Legation, his proposals as to what

should be done in any given situation were generally followed because once

he had propounded them they appeared to be inevitably right. This was often the case with an apparently intractable legal problem. He had been the acknowledged leader of the Melbourne bar and his leadership in the High Court was outstanding well before he became Chief Justice; in fact from his

appointment in 1929 he had an influence greater than that of any other

judge, and though the majority did not always agree with his judgments they treated them with the greatest respect. Dixon often said that his experience taught him that a man’s intellectual

influence on the Court did not depend on where he sat, but when he became

Chief Justice that influence was enhanced by the authority of the post and he displayed his leadership to the full, though of course he was not always able to carry the Court with him. The atmosphere of the Court, which had improved under Latham, was further transformed. The judges all spoke to one another and even met socially with their families, and Dixon saw to it

that, generally speaking, they were civil and helpful to counsel. The Commonwealth Law Reports from 1952 reveal that when he was Chief Justice the

Court delivered more joint judgments than ever before or since. This was

partly because, particularly in cases where he was concerned about what his colleagues might do, he made an enormous effort to get a draft judgment out before anyone else did, and no doubt his often just appeared to be inevitably right.

Legal doctrine is never a stable entity and it would be absurd to measure

Dixon’s legacy in terms of the survival or non-survival of the various positions he articulated. For instance, the doctrine on section 92 is now (in essence) that nothing conflicts with freedom of trade, commerce and intercourse among the States unless it is clearly a protectionist measure—a change away from pure legalism in the interpretation of the Australian Constitution. Although Dixonian legalism has often been used as a stick to beat him with (and misinterpreted to mean

that each law, each section of the

Constitution can have but one meaning which ingenuity, in blindness to the realities of life, must somehow discern), its value has become clearer in retrospect, even if it is beyond full recapture. Many who were critical of it

in the 1970s now concede its virtues. Colin Howard, for example, wrote in 1973,

294

OweN

DIXON

The fundamental criticism of the theory, and one which Dixon C.J. never gave us the benefit of his reactions to, is that it leads the High Court to

decide issues of high moment to the community without, or with very little, consideration of the context: of factors which anyone but a lawyer convinced of the correctness of pure legalism would regard as relevant.?

A generation on, however, with the alternative in full view—the legal ‘creativity’ of the High Court through the late 1980s and early 1990s—his attitude has changed somewhat: Twenty-six years later, my personal intellectual sympathy for pure legalism as it came to be called is much stronger. I do not think that the now notorious interventions by the present or very nearly the present High Court into matters of great political and social moment has been a success at all. It may take time to gradually sink in, in all its aspects, butI feel confident that it has weakened the influence of the judiciary quite seriously. I did not foresee that after the Dixonian intellectual atmosphere when the Court was by common consent for many years at its very highest in its influence and the quality of its reasoning, I did not envisage that it would change so dramatically as it has in the last decade or so, and I disapprove of the change.?

It is interesting that after thirty-seven years the approach to section 90 in Dennis Hotels, from which Dixon dissented, was rejected by a majority of the High Court.‘ In any case Dixon’s admirable qualities included unaffected modesty and he knew that all below the moon is change and flux— any ‘monument’ would not last, he prophesied, rejecting the word in

relation to his own work.

Dixon exercised a profound influence on the law in his lifetime and in a variety of specific areas his influence continues, but his greatest legacy is the phenomenal quality of his example as barrister, judge and citizen. Sir Frank Kitto may be allowed the last word. Dixon, he wrote, never wilted before a challenge to his thinking on the ground of its novelty or lack of supporting authority in the books; and yet, even while seeking to lead legal thought along unblazed or faintly trodden paths, he was ever a loyal servant of a developing Law, and not its unfettered master.*

APPENDIX: TABLE OF CASES (Only cases cited in this book are listed.)

Adelaide Corporation

v Australasian

Performing Right Association

Ltd

(1928) 40 CLR 481

Ahern v Cullis [1914] VLR 66 Airline Case, see Australian National Airways Pty Ltd v Commonwealth Amalgamated Engineering Union v Alderdice Pty Ltd; in re Metropolitan Gas Co. (1928) 41 CLR 402

Amalgamated Society of Engineers v Adelaide Steamship Co. Ltd (1920) 28 CLR 129 (Engineers’ Case) Amalgamated Society of Engineers v Adelaide Steamship Co. Ltd (1921)

29 CLR 406

Armstrong v Victoria (1955) 93 CLR 264 Armstrong v Victoria (No. 2) (1957) 99 CLR 28

Atkinson v Custom Credit Corporation (unreported) Attorney-General and Lumley v T. S. Gill & Son Pty Ltd [1926] VLR 414 Attorney-General

[1957] AC 288

(Commonwealth)

v The

Queen

(1957)

95

CLR

529;

Attorney-General (ex relatione Lumley) and Lumley v T. S. Gill & Son Pty

Ltd [1927] VLR 22

Attorney-General (New South Wales) v Trethowan (1931) 44 CLR 394 Attorney-General (South Australia) v Brown [1960] AC 432 Attorney-General (Victoria) v Commonwealth (1945) 71 CLR 237 (First Pharmaceutical Benefits Case) Australian Communist Party vy Commonwealth (1951) 83 CLR

295

1

296

APPENDIX

Australian National Airways Pty Ltd v Commonwealth (1945) 71 CLR 29 (Airline Case)

Australian Railways Union v Victorian Railways Commissioners (1930) 44 CLR 319 Australian Woollen Mills Ltd v FE. S. Walton & Co. Ltd (1937) 58 CLR 641

Australian Workers’ Union v Adelaide Milling Co. (1919) 26 CLR 460 Baillie v Federal Commissioner of Taxation (1927) 40 CLR 156

Bank

of New South

Wales v Commonwealth

(1948)

76 CLR

1 (Bank

Nationalisation Case)

Bank Nationalisation case, see Bank of New South Wales v Commonwealth

Bardsley and Kreglinger & Fernau Ltd v Commonwealth (1925) 47 ALT 181

Baxter v Commissioners of Taxation (New South Wales) (1907) 4 CLR 1087 Bennett v Murray (1940) 64 CLR 382

Bessell v Dayman (1935) 52 CLR 215 Birmingham v Renfrew (1937) 57 CLR 666 Boilermakers’ Case, see R v Kirby; ex parte Boilermakers’ Society of Australia; and Attorney-General (Commonwealth) v The Queen Bretherton v Major [1928] 34 Argus Law Reports 281

Brislan, see R v Brislan; ex parte Williams British Medical Association v Commonwealth (1949) 79 CLR 201 Builders’ Labourers’ Board, In re [1914] VLR 354 Burns v Ransley (1949) 79 CLR 101

Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130 (High Trees Case)

Chapman v Hearse (1961) 106 CLR 112 Chapman v Suttie (1963) 110 CLR 321

Cigamatic Case, see Commonwealth v Cigamatic Pty Ltd City of Sandringham v Rayment (1928) 40 CLR 510 Clayton v Heffron (1960) 105 CLR 214 Clyde Engineering Co. Ltd v Cowburn (1926) 37 CLR 466

Cock, In re [1914] VLR 395 Cock v Aitken (1911) 13 CLR 461

Commissioner for Railways (New South Wales) v Cardy (1960) 104 CLR 274 Commissioner of Stamp Duties (Queensland) v Livingston (1964) 112 CLR 12; [1965] AC 694

Commonwealth v Bank of New South Wales (1949) 79 CLR 497; [1950] AC 235. Commonwealth v Cigamatic Pty Ltd (1962) 108 CLR 372

TABLE

OF CASES

297

Commonwealth v Colonial Combing, Spinning and Weaving Co. Ltd (1922) 31 CLR 421 Commonwealth 393

v Kreglinger & Fernau Ltd and Bardsley (1926) 37 CLR

Communist Party Case, see Australian Communist Party v Commonwealth

Cook v Cook (1923) 33 CLR 369

Craine v Soden (1916) 21 CLR 268 Cullis v Ahern [1914] VLR 676 D. (A Lunatic Patient), In re (No. 2) [1926] VLR 467 Deakin v Webb (1904) 1 CLR 585 D’Emden v Pedder (1904) 1 CLR 91

Dennis Hotels Pty Ltd v Victoria (1960) 104 CLR 529 Director of Public Prosecutions v Smith [1960] 3 WLR 546; [1960] 3 All ER 161; [1961] AC 290 (Smith’s Case) Dunbabin, see R v Dunbabin; ex parte Williams Duncan and Green Star Trading Co. Pty Ltd v Vizzard (1935) 53 CLR 493

Edgar v Freeman [1915] VLR 16 Edwards, Dunlop & Co. Ltd v Harvey [1927] VLR 37 Engineers’ Case, see Amalgamated Society of Engineers v Adelaide Steamship Co. Ltd

English Scottish and Australian Bank Ltd v Phillips (1937) 57 CLR 302 Essendon Corporation v Criterion Theatres Ltd (1947) 74 CLR 1 Evans v Evans and Cleary (unreported in CLR): (1939) 56 WN (NSW) 168

Farley’s Case, see Federal Commissioner of Taxation v Official Liquidator of E. O. Farley Ltd

Federal Commissioner of Taxation v Clarke (1927) 40 CLR 246

Federal Commissioner of Taxation v Hyland (1926) 37 CLR 569 Federal Commissioner of Taxation v Newton (1957) 96 CLR 577

Federal Commissioner of Taxation v Official Liquidator of E. O. Farley Ltd (1940) 63 CLR 278

Federal Commissioner of Taxation v Weatherly (1927) 39 CLR 190 Federated Amalgamated Government Railway and Tramway Service Association v New South Wales Railway Traffic Employees Association (1906) 4 CLR 488

Federated Engine Drivers’ and Firemen’s Association Colonial Sugar Refining Co. Ltd (1916) 22 CLR 103

of Australasia

v

Federated Engine Drivers’ and Firemen’s Association v Adelaide Chemical etc. Co. Ltd (1920) 28 CLR

1

Federated State School Teachers’ Association of Australia v Victoria (1929) 41 CLR 569

298

APPENDIX

First

Pharmaceutical

Commonwealth

Benefits

Case,

see Attorney-General

(Victoria)

First Uniform Tax Case, see South Australia v Commonwealth

Fry v Byrne (1917) 23 CLR 589

Fuller's Theatre and Vaudeville Co. Ltd v Rofe [1923] AC 435

Gale v Gale (1914) 18 CLR 560

Garnishee Cases, see New South Wales v Commonwealth (Nos 1 and 3) Gill v City of Prahran [1926] VLR 410 Gilpin, see O. Gilpin v Commissioner for Road Transport and Tramways (New South Wales) Glenn v Federal Commissioner of Land Tax (1915) 20 CLR 490

Gramophone Co. Ltd v Leo Feist Inc. (1928) 41 CLR 1

Grannall v Marrickville Margarine Pty Ltd (1955) 93 CLR 55 Gratwick v Johnson (1945) 70 CLR 1 Green v Worley (1915) 20 CLR 418

Grundt v Great Boulder Gold Mines Pty Ltd (1937) 59 CLR 641 Guilfoyle v Bean and Mackerras; Rothacker v Bean and Mackerras [1926] VLR 498

Ha v New South Wales and Walter Hammond & Associates Pty Ltd v New

South Wales (1997) 189 CLR 465

Hallstroms Pty Ltd v Federal Commissioner of Taxation (1946) 72 CLR 634 Hancock v Federal Commissioner of Taxation (1961) 108 CLR 258 Hanlon, In re (1913) 17 CLR 60

Hanlon, John James, Application of [1913] VLR 408 Hartley v Walsh (1937) 57 CLR 372

Herald & Weekly Times Ltd v McGregor (1928) 41 CLR 254

High Trees Case, see Central London Property Trust Ltd v High Trees House

Ltd

Hoggett v Hoggett [1926] VLR 505 Holland v Wiltshire (1954) 90 CLR 409 Hospital Provident Fund Pty Ltd v Victoria (1953) 87 CLR

1

Hoysted v Federal Commissioner of Taxation (1920) 27 CLR 400; (1921) 29 CLR 537; (1923) 32 CLR 617; [1926] AC 155 Hughes & Vale Pty Ltd v New South Wales (1953) 87 CLR 49

Hughes & Vale Pty Ltdv New South Wales (No. 1) (1954) 93 CLR 1; [1955] AC 241

Hughes & Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR Isaacs v McKinnon (1949) 80 CLR 502

James v Commonwealth (1935) 52 CLR 570 James v Commonwealth [1936] AC 578; (1936) 55 CLR 1 (PC)

127

v

TABLE

OF CASES

299

James v Commonwealth (1939) 62 CLR 339 James v Cowan [1932] AC 542; (1932) 47 CLR 386 James v South Australia (1927) 40 CLR 1

John Cooke & Co. Pty Ltd v Commonwealth (1924) 34 CLR 269 John Cooke & Co. Pty Ltd and Field v Commonwealth and the Central Wool Committee (1922) 31 CLR 394 John Fairfax @ Sons Ltd and Smith’s Newspapers Ltd v New South Wales (1927) 39 CLR

139

Johnson v Agnew [1980] AC 367 Judiciary and Navigation Acts, In re (1921) 29 CLR 257 Kasumu v Baba-Egbe [1956] AC 539 Kerrison v Lavell [1915] VLR 145 Kirby, see R v Kirby; ex parte Boilermakers’ Society of Australia Langman v Handover (1929) 43 CLR 334

Lodge v National Union Investment Co. Ltd [1907] 1 Ch. 300 London Graving Dock Co. Ltd v Horton [1951] AC 737

Lowenstein, see R v Federal Court of Bankruptcy; ex parte Lowenstein McArthur, see W. & A. McArthur v Queensland McCarter v Brodie (1950) 80 CLR 432 McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457

McKenzie v McDonald [1927] VLR 134 M’Naghten’s Case (1843) 10 Cl. & F. 200; 8 ER 718 McNeill, see R v McNeill Maeder v Busch (1938) 59 CLR 684

Major v Bretherton [1928] 34 Argus Law Reports 281

Marbury v Madison (1803) 5 US (1 Cranch)

137

Marcus Clark & Co. Ltd v Commonwealth (1952) 87 CLR 177

Matear v Lyne [1918] VLR 629 Matthews v Chicory Marketing Board (Victoria) (1938) 60 CLR 263

Mayfair Trading Co. Pty Ltd v Dreyer (1958) 101 CLR 428 Melbourne Corporation v Commonwealth (1947) 74 CLR 31

Melbourne Harbour Trust Commissioners v Hancock (1927) 39 CLR 570

Metal Trades Employers’ Association v Amalgamated Engineering Union (1935) 54 CLR 387 Minister for Trading Concerns (Western Australia) v Amalgamated Society

of Engineers [1923] AC 170

Nassoor v Nette (1937) 58 CLR 446

National Research Development Corporation v Commissioner of Patents (1959) 102 CLR 252 Nelson, Ex parte (No. 2) (1929) 42 CLR

258

300

APPENDIX

Nelungaloo Pty Ltd v Commonwealth (1952) 85 CLR 545 Newbon v City Mutual Life Assurance Society Ltd (1935) 52 CLR 723 New South Wales v Commonwealth (No. 1) (1932) 46 CLR 155 (Garnishee Cases)

New South Wales v Commonwealth (No. 3) (1932) 46 CLR 246 (Garnishee Cases)

Noarlunga Meat Case, see O’Sullivan v Noarlunga Meat Ltd

O. Gilpin Ltd v Commissioner for Road Transport and Tramways South Wales) (1935) 52 CLR

(New

189

Orr v The University of Tasmania (1957) 100 CLR 526 O'Sullivan v Noarlunga Meat Ltd (No. 2) (1956) 94 CLR 367 Parker v The Queen (1963) 111 CLR 610 Parton v Milk Board (Victoria) (1949) 80 CLR 229 Peterswald v Bartley (1904) 1 CLR 497

Piggott v Piggott (1938) 61 CLR 378

Porter, see R v Porter

R v Brislan; ex parte Williams (1935) 54 CLR 262 R v Commonwealth Court of Conciliation and Arbitration and Australian Journalists’ Association; ex parte Daily News (1919) 26 CLR 404 R v Connare; ex parte Wawn (1939) 61 CLR 596 R v Dunbabin; ex parte Williams (1935) 53 CLR 434 R v Faulkner (1877) 13 Cox CC 550

R v Federal Court of Bankruptcy; ex parte Lowenstein (1938) 59 CLR 556 R v Foster (1949) 79 CLR 43

R v Industrial Registrar; ex parte Sulphide Corp. Ltd (1918) 25 CLR 9 R v Kirby; ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254; (1957) 95 CLR 529 (PC) R v McNeill (1922) 31 CLR 76 R v Martin; ex parte Wawn (1939) 62 CLR 457

R v Poole; ex parte Henry (No. 2) (1939) 61 CLR 634 R v Porter (1933) 55 CLR 182 R v Sharkey (1949) 79 CLR 121 R v Sodeman [1936] VLR 99

R v Turner; ex parte Marine Board of Hobart. Tasmania v Commonwealth (1927) 39 CLR 411 R v Vizzard; ex parte Hill (1933) 50 CLR 30

R v Worthington [1921] VLR 660

Radio Corporation v Commonwealth (1938) 59 CLR 17

Railway Servants’ Case, see Federated Amalgamated Government Railway etc. Association v New South Wales Railway Traffic Employees Association

TABLE

OF CASES

301

Ramage, B. B., In re (1913) 17 CLR 55 Remington v Welsbach Light Co. (1914) 19 CLR 237 Riverina Transport Pty Ltd v Victoria (1937) 57 CLR 327

Ronpibon Tin N.L. and Tongkah Compound N.L. v Federal Commissioner of Taxation (1949) 78 CLR 47 Ross, John Alexander, Application of [1913] VLR 291 Roughley v New South Wales (1928) 42 CLR 162 Rowe, In re [1926] VLR 452

Scott v Shepherd (1773) 2 Wm.

Bl. 892; 96 ER 525

Second Pharmaceutical Benefits Case, see British Medical Association v Commonwealth Second Uniform Tax Case, see Victoria v Commonwealth Seton v Lafone (1886) 19 QBD 74 Sharp, Stevenson G& Hare Pty Ltd v Federal Commissioner of Taxation (1927) 39 CLR 158 Smith v Cock (1910) 12 CLR 30; [1911] AC 317

Smith’s Case, see Director of Public Prosecutions v Smith Sodeman v The King (1936) 55 CLR 192 South Australia v Commonwealth (1942) 65 CLR 373 (First Uniform Tax Case)

Stapleton v The Queen (1952) 86 CLR 358

State Banking Case, see Melbourne Corporation v Commonwealth Stemp v Australian Glass Manufacturers (1917) 23 CLR 226 Summers v Commonwealth (1918) 25 CLR 144

Sun Newspapers Ltd and Associated Newspapers missioner of Taxation (1938) 61 CLR 337

Tait v The Tasmania Thomas v Thomson

Queen (1962) 108 CLR v Victoria (1935) 52 CLR The King (1937) 59 CLR v Palmer (1933) 49 CLR

Ltd v Federal Com-

620 157 279 507

Transport Publishing Co. Pty Ltd v The Literature Board of Review (1956)

99 CLR 111 Trethowan’s Case, see Attorney-General (New South Wales) v Trethowan

Turner, see R v Turner; ex parte Marine Board of Hobart

Uther v Federal Commissioner of Taxation (1947) 74 CLR 508

Vacuum Oil Co. Pty Ltd v Queensland (1934) 51 CLR 108 Vacuum Oil Co, Pty Ltd v Queensland (No. 2) (1935) 51 CLR 677 Victoria v Commonwealth (1957) 99 CLR 575 (Second Uniform Tax Case)

Virginia—Carolina Chemical Corporation’s Application, Re [1958] RPC 35 Vizzard, see R v Vizzard; ex parte Hill

302

APPENDIX

W. & A. McArthur v Queensland (1920) 28 CLR 530

Waterside Workers’ Federation of Australia v J. W. Alexander Ltd (1918) 25 CLR 434

Webb v Outtrim [1907] AC 81 Welsbach Light Co. of Australasia Ltd v Commonwealth

268

(1916) 22 CLR

West v Commissioner of Taxation (New South Wales) (1937) 56 CLR Willard v Rawson (1933) 48 CLR 316 Witton v Simmons [1914] VLR 452

Wool Sliping and Scouring Co. Ltd v Central Wool Committee CLR 51 Worthington, see R v Worthington

657

(1920) 28

NOTES

1

FOUNDATIONS:

1886-1909

Betty Danby, daughter of Sir Owen Dixon, conversation with the author, 1999.

‘Dixon.—On the 28th ult. [last month], at Glenferrie, the wife of J. W. Dixon of ason’, Argus, Saturday, 8 May 1886, p. 1. Public Record Office, Victoria, Unassisted Shipping Index: Index of Inward Passenger List for British and Foreign Ports 1852-1889; names of Joseph Dixon’s children from passenger lists and Victorian Public Records. Source

10 aw

Batch

Numbers

C088011,

7827632

30, C108101

(Church

records,

Morley), from International Genealogical Index (Church of Latter-Day Saints). Sands Kenny Directories. It is likely that James Dodgshun first emigrated to Melbourne prior to 1852 because his arrival is not on the Index of Inward Passenger List which runs from 1852. A James Dodgshun arrived in 1862: perhaps he had made a trip home. J. Chandler, Forty Years in the Wilderness, cited with other relevant references in Gwen McWilliam, Wattle Road Hawthorn, pp. 219-24. Mrs E. Baker to Owen Dixon, 4 February 1929, in Congratulatory Messages on Appointment to the High Court, Owen Dixon, Personal Papers. The Sands & McDougall Directory of Victoria for 1894 is the first to list J. W. Dixon at 55 Manningtree Road, so they probably moved there in 1893. For details of this school see the typescript compendium of early Hawthorn schools held in the local history section of the Hawthorn branch of the Boroondara Library. On Irving see G. C. Fendley, ‘Martin Howy Irving’. Joseph William Dixon, obituary, Argus, 22 June 1929, p. 24; Betty Danby for information that the accident merely exacerbated already poor hearing. Arthur Dean, A Multitude of Counsellors, pp. 118-19. anr

304 2 B 4 as 16

NOTES

(PAGES

4 TO

9)

Colin Dixon, Memorandum on Owen Dixon.

Henry Morton Stanley, The Autobiography of Sir Henry Morton pp. 44ff. Information on the Owen family from James Merralls.

Stanley,

The case book and other records quoted below are from Tarban Creek (Gladesville) Mental Hospital, Records.

Owen Dixon, diary entry for 30 August 1960, recording a visit on that day and recalling his childhood visit. Details of Hawthorn College given here are based on the school’s printed prospectus for 1902, Hawthorn College (copy in the LaTrobe Library); History

of Hawthorn and Book of Reference, pp. 84-6; Quintin Smith’s statements of 28 June 1906 on the ‘Registration of School’ form required under the Regulation of Teachers and Schools Act 1905 (VPRS 10300/P, Unit 12, Public Record Office, Laverton, Victoria); and the author’s inspection of the premises. Additional

sources are given in the following notes.

Hawthorn and Camberwell Citizen (formerly Boroondara Standard), 15 December 1894 (no prize), 14 December 1895, 12 December 1896, 11 December 1897 (no prize), 10 December 1898, 23 December 1899. Reports of Hawthorn Col-

19 20 a 2 2B

lege’s speech days are more detailed in this paper than in the Argus. Elizabeth Dixon, on 9 August 1895. Dixon never forgot her. See his diary entry for 9 August 1955. Joseph Dixon remarried in 1896. Sands & McDougall, Directory of Victoria, for the years 1898-1907 gives this address for J. W. Dixon. History of Hawthorn and Book of Reference, p. 85. Hawthorn College, prospectus for 1902, p. 6. Hawthorn and Camberwell Citizen, 22 December 1900, 21 December 1901. Dixon to Anne Dixon, 21 August 1950, from Karachi, in Letters to Anne, Owen

Dixon, Personal Papers. His student record at the University of Melbourne confirms the date of matriculation: ‘4th Term 1901’.

a 2s

D. O. Shiels, Notes on the History of Hawthorn, p. 1. Shiels overlapped with

26

Dixon at Hawthorn College (class of 1899). Hawthorn and Camberwell Citizen, 22 December 1900, in an article on the col-

od

28 29 30 un

Hawthorn and Camberwell Citizen, 16 December

1903.

lege’s speech day, reports Quintin Smith on the formation of the Cadet Corps nine months earlier. Drill is shown on the inside front cover of Hawthorn College, prospectus for 1902, and the fourth cadet from the left of the picture, front row, looks like Dixon, particularly in the general physique, though the image is not perfectly sharp. Hawthorn College, prospectus for 1902; and Shiels, Notes on the History of Hawthorn, p. 2. Hawthorn and Camberwell Citizen, 14 December 1903. Hawthorn and Camberwell Citizen, 20 December 1902. Argus, 15 December

1903, cites ‘Lt. O. Dixon’ as winning the prize. See also

Hawthorn and Camberwell Citizen, 16 December 1903, report on the speech day.

NOTES 32

(PAGES

9 TO

12)

305

Argus, 15 December 1903. At the end of 1910 Quintin Smith closed Hawthorn College and sold the goodwill to Camberwell Grammar. See his letter of 21 February 1911 to the Department of Education (VPRS 10300/P, Unit 12, Public Record Office, Laverton, Victoria). From 1921 he would teach at Melbourne

Church of England Grammar School, retiring in 1933. He died in 1948. Infor33 4 38

36 v7

38 39

mation from Gordon Sargood, archivist at Melbourne Grammar.

Interview between Norris and James Merralls in 1976. Dixon’s student record clearly states for November

LL.B.’

1904, ‘Passed First Year

Dixon, ‘Two Portraits’, originally untitled address, on the occasion of the conferring of the degree of Doctor of Laws (Honoris Causa) in the University of

Melbourne, 4 April 1959; see p. 188.

Dixon, ‘Two Portraits’, p. 189. Dixon, ‘The Teaching of Classics and the Law’, delivered to the Classical Association of Victoria in Melbourne, 1963. It was an extempore address, written up from notes after the event (information from James Merralls, who was there).

Robert Menzies, The Measure of the Years, p. 231. Out of personal considerations, in 1970 he read the proofs of his former associate Ian Spry’s Equitable Remedies (Law Book Co., Sydney, 1971), making helpful comments on what he thought a fine book.

40 a ar

Dixon, ‘Two Portraits’, p. 189. Tucker’s stepdaughter, Joan Lindsay, Time Without Clocks, p. 90.

43

Aeschylus, Agamemnon,

“ 4s 46 ” “n 0 so st

Course details in this section are from the University of Melbourne Calendars for the relevant years. p. 88, in Philip Vellacott’s translation of Aeschylus:

The Oresteian Trilogy. Information from James Guest quoting Dixon in the early 1960s. Dixon, ‘Two Portraits’, p. 189.

William Harrison Moore, The Constitution of the Commonwealth of Australia. Quoted in Loretta Re, ‘William Harrison Moore’, pp. 106 and 109. Re, ‘William Harrison Moore’, p. 106. Ruth Campbell, A History of the Melbourne Law School, p. 40. Robert Menzies, Central Power in the Australian Commonwealth, p. 28; Geoffrey Sawer, Australian Federalism in the Courts, p. 57; and many others.

Dixon, ‘Two Portraits’, p. 190. Dixon used to say that if he were teaching a law course at a university he would teach without reference at all to cases until the last year, when he would explain the use to be made of cases in practising law. He was quite clear that that could be successfully done, and that to focus students’ attention on the formulation of propositions would give a foundation of principle which was desirable. Information from Richard Searby, who was

Dixon’s associate from 1956 to 1959.

Dixon to J. G. Latham, 7 April 1964, in Correspondence on Retirement as Chief

Justice, 1964, Owen Dixon, Personal Papers.

306 53

$a

5s 56

NOTES

(PAGES

12

TO

16)

He does not seem to have been among those (including barristers from Selborne Chambers) who sent congratulations to Moore in early June 1925 on his KBE, nor among those who sent cards of condolence to his widow in early July 1935: Sir William Harrison Moore Papers, Correspondence files, 1/3, and collection of condolence cards from 1935 preserved by his widow, Baillieu Library, University of Melbourne. The collections, however, may be incomplete. Certainly no congratulatory message would seem to have come from Moore on Dixon’s appointment to the High Court (over two hundred messages from others were preserved in Congratulatory Messages on Appointment to the High Court of Australia, February 1929, Owen Dixon, Personal Papers).

‘Mr Justice Dixon said that the legal history of Victoria was perhaps more extraordinary than that of any other part of the Empire owing to the profound influence of Sir Harrison Moore. He had made a notable contribution not only to the legal history of Victoria but of the whole Commonwealth.’ Argus, 19 April 1929, p. 8. See also Herald, 1 July 1935, for Dixon’s tribute on

Moore’s death.

University of Melbourne Calendar for 1908. Bruce

Coles to Dixon,

9 June

1971,

in Correspondence

1960-1973,

Owen

Dixon, Personal Papers. The remarks do not apply to Harrison Moore, of course 58 59 60 61

(he was not a practising lawyer). Dixon, ‘The Late Sir Wilfred Kelsham Fullagar’, delivered on 25 July 1961. Frank A. Russell, ‘Men We Cannot Ignore’, p. 3. Melbourne University Magazine, | (2) (September 1907), p. 60.

Dixon’s secretaryship is mentioned by F. Maxwell Bradshaw, ‘The First Fifty Years’. William Howat to Dixon, 31 January 1929, in Congratulatory Messages on Appointment to the High Court of Australia, February 1929, Owen Dixon, Personal Papers.

2

THE

YOUNG

BARRISTER:

1909-1920

Cameron is best known for his later chairmanship of the Melbourne and Metropolitan Tramways Board—he was responsible for converting Melbourne’s tramways from the system of underground cables, which pulled the tramcars along, to electricity delivered by overhead wire. In 1909 he was Chairman of the Prahran and Malvern Tramways Trust.

In 1891 the Victorian Parliament passed an Act which provided that henceforth every legal practitioner should be admitted as a ‘barrister and solicitor’. This was an attempt to abolish the distinction between the two branches of the profession. Those who wished to practise only as barristers formed a loose association (thought by some to be illegal), which one joined by signing the ‘Roll of Counsel’ (kept for many years in a rough exercise book), and undertaking to practise as a barrister only and to abide by the rulings of the Committee of

NOTES Counsel (now the Victorian Counsellors, ch. 6.

(PAGES

16

Bar Council).

TO

20)

See Arthur Dean,

307 A Multitude

of

A ‘silk’ wears a silk gown, a junior barrister—a term having nothing to do with age—an ordinary cloth or ‘stuff’ gown. Robert Menzies, The Measure of the Years, p. 229. Dixon, ‘Comments in discussion’, tenth Convention of the Law Council of Australia, Melbourne, p. 323.

For a detailed account of this building and its history see F. Maxwell Bradshaw,

Selborne Chambers Memories.

10

Dixon, ‘Owen Dixon Chambers Official Opening 16 October 1961’. R. G. Menzies’ speech, prefacing this address, refers to his pupillage with Dixon. Bradshaw, Selborne Chambers Memories, p. 48. Stuart Macintyre, ‘John Greig Latham’, p. 2.

There are two almost identical lists—an inserted list on blue paper and a finalised list on two diary pages. Owen Dixon, 1911 diary, at the back, on ‘Addresses’ page (heading crossed out and ‘Fees 1910’ written above it) and on its verso, ‘Notes for 1912’ with the date

2

B “ 1s 16

v7 18 19 20

changed by Dixon to ‘1910’. Dixon, ‘Upon Retiring from the Office of Chief Justice’, p. 255. H. C. Winneke, later a Country Court judge, was the father of Sir Henry Winneke, Victorian Solicitor-General, Chief Justice and finally Governor. University of Melbourne, School of Law, Minutes Book, meeting no. 5, 17 November 1910. There is no indication in Dixon’s 1911 diary of his owning a horse that year, just a number of references to his riding his bicycle. Information provided by Betty Danby regarding the name of Dixon’s horse. Dixon to Daryl Lindsay, 8 August 1957: ‘I always used big stirrups but the last fall I had (it was before the war) convinced me that any how horses should only come down with young riders’: in Correspondence 1957-1959, Owen Dixon, Personal Papers. Dean, A Multitude of Counsellors, p. 147. Dean, A Multitude of Counsellors, p. 151. Dixon, ‘Upon Retiring from the Office of Chief Justice’, p. 259. The quotation is from the typescript of a revised (1955) version of Dixon’s ‘Professional Conduct’, originally read to law students at the University of Melbourne in March 1953, published in shorter form in Jesting Pilate, pp. 12934, where the Pigott anecdote (p. 132) lacks most of the detail found in the 1955

typescript. Papers and Speeches—General, 1937-1963, Owen Dixon, Personal u 2

Papers. John Read, interview with the author, 31 January 2000. Richard Searby QC, interview with the author, 24 February

23

Mr Justice Taylor, at that time on the High Court. Dixon to T. W. L. MacDermot, 13 April 1964, in Correspondence on Retirement as Chief Justice, 1964, Owen Dixon, Personal Papers.

1999. ‘Taylor’ is

308 4 25 26

NOTES

(PAGES

20

To

24)

The 1909 Sands & McDougall Directory of Victoria is the first to list J. W. Dixon at the new address. See 200 Seasons of Australian Cricket, photograph on p. 153.

Dixon, ‘Upon Retiring from the Office of Chief Justice’, p. 258. The ‘Austinian age’ is that of John Austin (1790-1859), English jurist. On Griffith see Roger B. Joyce, Samuel Walker Griffith. On the High Court generally see Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion

the High Court of Australia. 28 29 30 1 32

to

Cock v Aitken (1911) 13 CLR 461. Smith v Cock (1910) 12 CLR 30; [1911] AC 317. Cock v Aitken (1911) 13 CLR 461 at 472.

Said to have been a parody of a Moody and Sankey hymn, ‘Work, for the night is coming when man works no more’. See C. P. Jacobs, A Lawyer Tells, p. 152. Dixon to Prof. R. Douglas Wright, University of London, undated draft (c. late 1964?), in Correspondence 1960-1973, Owen Dixon, Personal Papers. Dixon to Lord Reid, draft letter, 9 January 1956, in Correspondence 1955-

1956, Owen Dixon, Personal Papers. The parliamentary committee to which Dixon here refers was set up to investigate the conduct of ministers of the Liberal Government with regard to the Marconi Company’s successful tender for an ‘Imperial Wireless Chain’, particularly the conduct of Attorney-General Sir Rufus Isaacs and Chancellor of the Exchequer David Lloyd George in purchasing shares in American Marconi from Isaacs’ brother, the secretary of British

33 4 35 36

7

38

39 40 a az

Marconi. The Conservatives on the committee released a minority report critical of the ministers. Richard Searby, written communication with the author, April 2000.

The Victorian Statutes: The General Public Acts of Victoria. Dixon, ‘Comments on Prof. Kenneth Shatwell’s paper’, tenth Convention of the Law Council of Australia, Melbourne, p. 341.

Application of John Alexander Ross [1913] VLR 291; In re Ramage (1913) 17 CLR 55; Application of John James Hanlon [1913] VLR 408; In re Hanlon

(1913) 17 CLR 60.

From June to December 1913 Starke led Dixon in Application of John Alexander Ross [1913] VLR 291; In re Cock [1914] VLR 395; and Gale v Gale (1914) 18 CLR 560.

For example, In re Builders’ Labourers’ Board [1914] VLR 354 (industrial); Abern v Cullis [1914] VLR 66, Cullis v Ahern [1914] VLR 676 (local government and traffic); In re Cock [1914] VLR 395 (insolvency); Gale v Gale (1914) 18 CLR 560 (will); Edgar v Freeman [1915] VLR 16 (defamation); Remington v Welsbach Light Co. (1914) 19 CLR 237 (trade mark). Witton v Simmons [1914] VLR 452 at 454. Robert Menzies, The Measure of the Years, p. 235.

Information from Richard Searby, who had it direct from Dixon. He had his limitations, however. Menzies, who observed him closely, commented that ‘He found it difficult, in cross-examining anybody except an expert witness

NOTES

ay “4 4s 46 47 48 49 so st 32 53 54 5S $6

(PAGES

24

TO

29)

309

of high mental attainments, to get on the same wave-length as the witness. The difficulry was accentuated when he came to address a jury. His intellectual subtleties eluded them; frequently they wrongly but excusably thought that he was talking down to them’. Robert Menzies, The Measure of the Years, pp. 234-5. Kerrison v Lavell [1915] VLR 145 at 147. Kerrison v Lavell [1915] VLR 145 at 147-9. Richard Searby, written communication with the author, April 2000; emphasis in the original. Richard Searby, interview with the author, April 2000. Matear v Lyne [1918] VLR 629. Matear v Lyne [1918] VLR 629 at 633-7.

James Merralls, communication to the author. John Read, interview with the author, 31 January 2000. Frank A. Russell, ‘Men We Cannot Ignore’.

Robert Menzies, The Measure of the Years, p. 233. Committee of Counsel (Victoria), Minutes Books.

Dean, A Multitude of Counsellors, p. 161. Federated Engine Drivers’ and Firemen’s Association of Australasia v Colonial

Sugar Refining Co. Ltd (1916) 22 CLR

103 (Dixon for the respondents).

Other early examples up to the end of the war include Welsbach Light Co. of

Australasia Ltd. v Commonwealth (1916) 22 CLR 268 (trading with the enemy, Mann and Dixon for the Commonwealth); Stemp v Australian Glass Manufacturers (1917) 23 CLR 226 (Commonwealth

powers with reference to concilia-

tion and arbitration, Mann and Dixon for the appellant); Waterside Workers’ Federation of Australia v J. W. Alexander Ltd (1918) 25 CLR 434 (the arbitras7

tion power, Dixon for the Waterside Workers’ precursor of the Boilermakers’ Case).

Federation—this case was the

Examples are too numerous to cite, but to give some idea of the variety, for the war period they include Remington v Welsbach Light Co. (1914) 19 CLR 237 (trade mark, Schutt and Dixon for the appellants); Green v Worley (1915) 20

CLR 418 (practice, Macfarlan and Dixon for the appellants); Glenn v Federal Commissioner of Land Tax (1915) 20 CLR 490 (Starke and Dixon for the Commissioner); Craine v Soden (1916) 21 CLR 268 (negligence, Schutt and Dixon for the appellant); Fry v Byrne (1917) 23 CLR 589 (implied contract, Mann and

Dixon for the respondent); R v Industrial Registrar; ex parte Sulphide Corp. Ltd (1918) 25 CLR

9 (industrial arbitration, Dixon for the respondent); Summers

v Commonwealth 58 $9 61

(1918) 25 CLR

144 (contract, Walker and Dixon for the

plaintiffs).

Dixon, ‘Upon taking the Oath of Office as Chief Justice’, p. 247. Dixon, ‘Upon First Presiding as Chief Justice at Melbourne’, pp. 250-1. Robert Menzies, The Measure of the Years, p. 232. R v Commonwealth Court of Conciliation and Arbitration and Australian Journalists’ Association; ex parte Daily News (1919) 26 CLR 404 (Dixon and Menzies for the respondent organisation). This was Menzies’ first appearance in

310

62 63 Cy 65 66 67 8

NOTES

(PAGES

29

TO

33)

the High Court. A. W. Martin, in his Robert Menzies, A Life, vol. I, p. 37, incorrectly identifies Troy v Wigglesworth as the case in which Menzies ‘made his first appearance in the High Court’, though it was his first case there in a solo capacity. Martin discusses some of the cases in which Dixon and Menzies appeared together in the 1920s on pp. 45-7. For these cases see, respectively, (1904) 1 CLR 91, (1904) 1 CLR 585, (1906) 4

CLR 488, (1907) 4 CLR 1087, and [1907] AC 81.

Amalgamated Society of Engineers v Adelaide Steamship Co. Ltd (1920) 28

CLR 129.

Australian Workers’ Union v Adelaide Milling Co. (1919) 26 CLR 460. Amalgamated Society of Engineers v Adelaide Steamship Co. Ltd (1920) 28 CLR 129.

Reported by Robert Menzies, The Measure of the Years, p. 233. Information from Betty Danby on the courtship. Copy of certificate of marriage from the archives of St Paul’s Melbourne.

3

AKC

IN

LONDON:

Cathedral,

1921-1924

Significant constitutional cases in which he appeared in the early 1920s included Federated Engine Drivers’ and Firemens’ Association v Adelaide Chemical etc. Co. Ltd (1920) 28 CLR 1—Dixon successfully for the Commonwealth (intervening) in this case which established that the Federal Arbitration Court does

not lose control of a dispute when it has been reduced to only one State; W. and A. McArthur v Queensland (1920) 28 CLR 530—Dixon unsuccessfully for Queensland in this case in which section 92 of the Constitution (‘trade, com-

merce, and intercourse among the States, whether by means of internal carriage

or ocean navigation, shall be absolutely free’) was held to bind the States but

not the Commonwealth; In re Judiciary and Navigation Acts (1921) 29 CLR

257—Dixon’s argument, that Part XII of the Judiciary Act 1903-1920, on the

giving of advisory opinions, was invalid, was accepted. For a particularly interesting criminal case before the Supreme Court of Victoria in which his arguments for the appellant were persuasive see R v Worthington [1921] VLR 660. For a matrimonial

case

see

Cook

v Cook

(1923)

33

CLR

369

in which

Dixon

appeared unsuccessfully for the respondent husband. Amalgamated Society of Engineers v Adelaide Steamship Co. Ltd (1920) 28 CLR

129.

Amalgamated Society of Engineers v Adelaide Steamship Co. Ltd (1921) 29 CLR 406.

Amalgamated Society of Engineers v Adelaide Steamship Co. Ltd (1921) 29 CLR 406 at 410. For their other grounds see 409-11. See Christopher Fyfe, Gentlemen’s Agreements: Australian Wartime Wool Appraisements, especially pp. 1-103.

NOTES

(PAGES

33

TO

38)

311

See, for example, Wool Sliping and Scouring Co. Ltd v Central Wool Committee (1920) 28 CLR 51, won by Dixon on behalf of the CWC.

Commonwealth v Colonial Combing, Spinning and Weaving Co. Ltd (1922) 31 CLR 421. Dixon had been leading for the plaintiffs on 10-13 and 1620 October. The case continued after his departure and judgment was given for the defendant on 13-14 December. This case had previously and successfully been fought by Dixon through mid-1922 in a 59-day trial before Isaacs J, who had found for the CWC

but reserved questions of law for the Full Court, which on

13 December unanimously held that the Government had had no power to make certain disputed agreements. See also Fyfe, Gentlemen’s Agreements, pp. 92-3. Alice Dixon, Travel Journal 1922-23, ‘Owen seemed very depressed’, entry for 16 November 1922; ‘Owen was very depressed all day’—29 November 1922; ‘Owen ... read out some passages to me [from] Agamemnon’, 30 October 1922. In Owen Dixon, Personal Papers. Subsequent references to this diary will be given in the text proper by dates of entry in parentheses. 10 uw 12 1B

Judgment was delivered in Sydney on 13-14 December, against the CWC.

Argus, 11 December 1922. See also Argus, 12 December 1922, leader, ‘Ruling “That Way” Tonight’. Most papers took a states’ rights position. Ex parte Nelson (No. 2) (1929) 42 CLR 258, especially at 272, and Nelungaloo

Pty Ltd v Commonwealth (1952) 85 CLR 545, at 271-3. Minister for Trading Concerns (Western Australia) v Amalgamated Society of Engineers [1923] AC 170, especially at 173-4. See R v McNeill (1922)

31 CLR

76, an appeal from the Supreme

Court

of

Western Australia. Dixon was briefed in this by Blake & Riggall acting for Stone,

“4 1s 16

James & Co. on behalf of the respondents, 1922-23 records that in Perth on 28 October cipals of Stone, James & Co., the former Attorney-General Sir Walter Hartwell James, Dixon, draft letter to Lord Reid, 9 January

and Alice Dixon’s Travel Journal 1922 Dixon saw one of the prinWestern Australian Premier and obviously in relation to this case. 1956, in Correspondence 1955-

1956, Owen Dixon, Personal Papers.

Fuller’s Theatre and Vaudeville Co. Ltd v Rofe [1923] AC 435. ‘Grandpa refused to set foot in such a place’, Alice noted of her father’s reaction

to Port Said (she may have intended the diary to be read one day by her son Franklin): Alice Dixon, Travel Journal 1922-23.

19

F. Maxwell Bradshaw, Selborne Chambers Memories, pp. 22-5. Iam grateful to Archbishop Sir Frank Little, whose house this now is, for showing me over it in March 2000. Although extended at the back, and without its side gardens, it is internally little changed since Dixon’s occupancy. John Cooke & Co. Pty Ltd and Field v Commonwealth and the Central Wool

20

John Cooke & Co. Pty Ltd and Field v Commonwealth and the Central Wool

2

Committee (1922) 31 CLR 394.

Committee (1922) 31 CLR 394 at 416.

Dixon, draft letter to Ralph Burt, 4 April 1964, in Correspondence on Retirement as Chief Justice, 1964, Owen Dixon, Personal Papers.

312 2 2 4

2s 26

NOTES

(PAGES

38

TO

47)

Owen Dixon, Travel Journal 1923-24 (titled ‘English Diary’ on its containing envelope), 28 November 1923, Owen Dixon, Personal Papers. John Allsebrook, first Viscount Simon, Retrospect, p. 46.

Untitled red-covered notebook containing analysis of relevant wartime regulations, sections of the Constitution and Audit Act, critical transcript of the first hearing, and chronological sequence of events. There are two loose enclosures: ‘Skin Wool Appeal’ (4 pages) and a single-page list of exhibits: Owen Dixon Notebook relating to Skin Wool Appeal, Owen Dixon, Personal Papers. Margaret Connor (née Kitto), in conversation with the author, March 2000.

‘Stayed at the hotel all day settling our “case” which

Gordon

Brown

had

“settled”’ (12 January 1924). The ‘case’ is the formal statement of the case to

be argued before the Privy Council including an outline of the argument. Dixon, draft letter to Lord Morton, 25 November

1959, in Correspondence

1957-1959, Owen Dixon, Personal Papers. On the litigation of 1925-26 to which Dixon refers see Bardsley and Kreglinger @ Fernau Ltd v Commonwealth (1925) 47 ALT 181 and 190 (note); and Commonwealth v Kreglinger &

Fernau Ltd and Bardsley (1926) CLR 393. The judge referred to by Dixon was Sir Leo Cussen, who (as Dixon says) heard and dismissed the action. The Full

28

» 30

Court of the Supreme Court of Victoria subsequently dismissed an appeal but granted leave to appeal to the Privy Council, a decision reversed by the High Court. John Cooke & Co. Pty Ltd v Commonwealth (1924) 34 CLR 269 at 270 (reporting the Privy Council—this case was not reported in AC), emphasis in

original. Argus, 26 March 1924. On this case and Dixon’s connections with it, see Hoysted v Federal Com-

missioner of Taxation (1920) 27 CLR 400; (1921) 29 CLR 537; (1923) 32 CLR

617; and [1926] AC 155.

4

THE MATURE BARRISTER AND ACTING JUSTICE: 1924-1929

Arthur Dean, A Multitude of Counsellors, p. 218. However, Dixon was not well known in Sydney during the 1920s according to Sir Victor Windeyer, who had been admitted to the New South Wales bar in 1925 (information from James Merralls based on a conversation with Windeyer).

W. F. Weigall (of the law firm Weigall and Crowther) to Dixon, 20 July 1926, on Dixon’s appointment as Acting Justice of the Victorian Supreme Court: ‘It may not be apt perhaps to say here what a probable tragedy you have—at any rate—deferred. Nevertheless I do say it’. In Congratulatory Messages upon Appointment as Acting Justice of the Supreme Court of Victoria, July 1926, Owen Dixon, Personal Papers. Others’ messages at this time also implied that he badly needed a rest. See also John E. Dodgshun’s letter of 30 January 1929:

NOTES

(PAGES

47

TO

48)

313

“you were wise and well advised in avoiding the risk of further strain’ occasioned by ‘working at such a tremendous pressure’: in Congratulatory Messages on Appointment to the High Court of Australia, February 1929, Owen Dixon, Personal Papers. For the later part of the 1920s a representative range of his advocacy in the High Court in constitutional cases would include Clyde Engineering Co. Ltd v Cowburn (1926) 37 CLR 466 (s. 109 of the Constitution); John Fairfax & Sons

Ltd and Smith’s Newspapers Ltd v New South Wales (1927) 39 CLR 139 (s. 90

of the Constitution); R v Turner; ex parte Marine Board of Hobart. Tasmania v Commonwealth (1927) 39 CLR 411 (s. 51 (xxxix) of the Constitution); James v South Australia (1927) 40 CLR 1 (s. 92 of the Constitution). His taxation

cases in 1926 and 1927 included Federal Commissioner of Taxation v Hyland (1926) 37 CLR 569; Sharp, Stevenson @ Hare Pty Ltd v Federal Commissioner

of Taxation (1927) 39 CLR 158; Federal Commissioner of Taxation v Weatherly (1927) 39 CLR 190; Baillie v Federal Commissioner of Taxation (1927) 40 CLR

156; Federal Commissioner of Taxation

v Clarke (1927) 40 CLR

246.

Industrial arbitration cases in which he appeared in 1927 and 1928 included Melbourne Harbour Trust Commissioners v Hancock (1927) 39 CLR 570; Amalgamated Engineering Union v Alderdice Pty Ltd; in re Metropolitan Gas Co. (1928) 41 CLR 402. See too, amongst a diversity of others in 1928 (his final

year of advocacy), City of Sandringham v Rayment (1928) 40 CLR 510 (local government); Gramophone Co. Ltd v Leo Feist Inc. (1928) 41 CLR 1 (copyright); and Herald & Weekly Times Ltd v McGregor (1928) 41 CLR 254 (defamation). In the last of these, Eugene Gorman advised that the respondent, a crooked former jockey, should appear against Dixon in person. He did so, gained the Court’s sympathy, and won. Gorman told him to announce ‘I appear for meself’. Information from James Merralls. Sir Daryl Lindsay to Alice Dixon, 4 July 1971, in Correspondence 1960-1973, Owen Dixon, Personal Papers. Argus, 18 June 1926.

Dixon, ‘Upon Retiring from the Office of Chief Justice’, p. 256. Typescript of Dixon’s speech in response to his welcome by the Bar Council of Victoria on appointment as Chief Justice, in Transcripts of Proceedings, High Court of Australia: 1952, 1964, Owen Dixon, Personal Papers. The remarks quoted were struck by Dixon from the speech as printed in Jesting Pilate. Reported to the author by Sir John Young and Richard Searby, each separately

recalling Dixon discussing the question in the 1940s and 1950s. In the early

1960s, as his associate James Guest reports, he referred to the hangman and others involved in an execution ‘killing someone for money’. It is unlikely that

his attitude was different in 1926.

10

Information from James Merralls. Frederic W. Eggleston to Dixon, 15 July 1926, in Congratulatory Messages on

Appointment as Acting Justice of the Supreme Court of Victoria, July 1926, Owen Dixon, Personal Papers.

314 11 2

3

Notes

(PAGES

48 TO

Eggleston to Dixon, 19 July 1926, in Congratulatory Messages on Appointment as Acting Justice. Letters of Isaacs and Rich dated 20 July, of Starke 21 July, in Congratulatory Messages on Appointment as Acting Justice. On 13 May 1926 Committee of Counsel had authorised Dixon and Harry Walker to prepare the statement on judicial salaries, work Dixon could not now complete as a judge, Rich implies. J, V. M. Wood to Dixon, 22 July 1926, in Congratulatory Messages on Appointment as Acting Justice.

‘4

Owen Dixon, Diary, 30 December 1957.

16

Richard Searby, conversation with the author.

15

1”

50)

My own analysis based on the Victorian Law Reports and the Argus Law Reports for 1926 and 1927. The figure is even higher if one includes his reserved judgment in Bretherton v Major, unreported in VLR or ALR but noted, in [1928] 34 Argus Law Reports 281, on its appeal to the High Court as Major v Bretherton, where the original judgment of Dixon A-J, partly reversed by the Full Court of the Supreme Court of Victoria, was restored. For instance, Gill v City of Prabran [1926] VLR 410 (validity of a by-law—‘this

case presents a little difficulty’, a Dixonian understatement); Attorney-General

and Lumley v T. S. Gill & Son Pty Ltd [1926] VLR 414 (conditional grant of interlocutory injunction to a relator); In re Rowe [1926] VLR 452 (rights of a beneficiary under an intestacy); In re D. (A Lunatic Patient) (No. 2) [1926] VLR

467 (administration of the patient’s estate); Guilfoyle v Bean and Mackerras; Rothacker v Bean and Mackerras [1926] VLR 498 (discretionary joinder of dis-

tinct and separate causes of action); Hoggett on grounds of desertion); Attorney-General v T.S. Gill & Son Pty Ltd [1927] VLR 22 reserved for consideration of the Full Court, Dunlop & Co. Ltd v Harvey [1927] VLR 37 of Victorian Stamps

8 19 20 21 23

Act 1915

and

v Hoggett [1926] VLR 505 (divorce (ex relatione Lumley) and Lumley (grounds for an injunction—point judgment read by Dixon); Edwards, (dishonoured cheques, applicability

Instruments Act

1915); and McKenzie

v

McDonald [1927] VLR 134 (breach of duty of agent to principal). To these one should add Bretherton v Major [1928] 34 Argus Law Reports 281 which is reported on appeal to the High Court. The report sufficiently indicates the most interesting aspects of Dixon’s otherwise unreported judgment, restored by the High Court. Dixon, undated draft letter (c. 1964) to Prof. R. Douglas (Panzee) Wright, in Correspondence 1960-1973, Owen Dixon, Personal Papers.

Sodeman v The King (1936) 55 CLR 192, analysed in chapter 5. -¥V.G. Braham to Dixon, 4 February 1929, in Congratulatory Messages on Appointment to the High Court of Australia, February 1929, Owen Dixon, Personal Papers. Dixon, ‘Upon Retiring from the Office of Chief Justice’, p. 256. Information from James Merralls. Lowe was appointed in early 1927. At one of the earliest meetings Dixon attended, a motion was carried that each barrister absent on active service should continue to have briefs bearing his

Notes

(PAGES 50 To 53)

315

name delivered to his clerk by solicitors, who should inform the clerk in each instance of the name of the barrister to be invited to hold the brief, a third of the fees being reserved for the barrister-at-war. Minutes for the meeting of 5 April 24 25 26 7

1916, Committee of Counsel (Victoria), Minutes Books.

Minutes reporting the general meeting, Counsel (Victoria), Minutes Books.

30

Minutes

Committee

for meeting

Minutes Books.

of

13

May

1926,

Minutes for meeting of 9 December

Minutes Books.

October

1927, Committee

1924,

Committee

of Counsel

(Victoria),

of Counsel

(Victoria),

Three volumes of his opinions survive, the first covering the period from June 1921 to December 1925 (mainly 1925), the other two mostly 1927, during

which year alone Dixon supplied over two hundred opinions: Owen 28 29 30 31 2

33

35 36 37 38 39 40

of

Dixon

Three Volumes of Opinions, Owen Dixon, Personal Papers.

Adelaide Corporation v Australasian Performing Right Association Ltd (1928) 40 CLR 481. Minutes for meeting of 28 November

Minutes Books. Minutes

for meeting of 12 October

1928, Committee of Counsel (Victoria), 1927, Committee

of Counsel

(Victoria),

Minutes Books. On McArthur see chapter 3, note 1. Dixon said as much before reading the memorandum to the Commissioners:

Royal Commission on the Constitution of the Commonwealth, Minutes of Evidence, part 3, p. 776.

That is, between 12 October when the subcommittee was formed and 9 December when the Committee of Counsel empowered him to present the memorandum to the Commissioners. During that period he had also worked on a report regarding amendments to the Supreme Court Rules, which he presented to the Committee of Counsel on 3 November 1927; see Committee of Counsel (Victoria), Minutes Books. Chery! Saunders, ‘Owen Dixon: Evidence to the Royal Commission on the Constitution, 1927-29’. Royal Commission on the Constitution of the Commonwealth, Minutes of Evidence, part 3, p. 790.

Royal Commission on the Constitution of the Commonwealth, Minutes of Evi-

dence, part 3, p. 779; R v Brislan; ex parte Williams (1935) 54 CLR 262 at 288-94. Royal Commission on the Constitution of the Commonwealth, Minutes of Evi-

dence, part 3, pp. 777-8.

Royal Commission on the Constitution of the Commonwealth, Minutes of Evidence, part 3, p. 782.

R v Kirby; ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254; (1957) 95 CLR 529 (PC); [1957] AC 288.

Dixon, draft letter to Lord Simonds,

12 February

1957-1959, Owen Dixon, Personal Papers.

1957, in Correspondence

316 a

aa 43 “4

45 46

NOTES

(PAGES

53

TO

55)

Robert Menzies, ‘Retirement of the Chief Justice’, p. vii. Dixon, as he told Richard Searby, had said the same thing to Latham in 1922 when Latham had come into Dixon’s chambers to announce, rather pompously, that he was going into politics because he thought it his duty to do so. Richard Searby, in correspondence with the author. John G. Latham to Dixon, 23 January 1929, in Correspondence to end of 1946, Owen Dixon, Personal Papers. Owen Dixon, Diary, 23 January 1929.

Direct speech as remembered and quoted by Dixon in letter to John D. Phillips, 4 May 1964, in Correspondence on Retirement as Chief Justice, 1964, Owen Dixon, Personal Papers. He repeats the story in his letter to Latham of 7 April 1964, in the same file. Dixon to Latham, 7 April 1964, in Correspondence Justice, 1964, Owen Dixon, Personal Papers.

on Retirement as Chief

Latham wrote on 29 January 1929 congratulating Dixon on his acceptance of the seat. ‘The Prime Minister also is very pleased.’ In Correspondence to end of 1946, Owen Dixon, Personal Papers. Later Latham recalled how ‘I had to plead

with you’ to agree—Latham

to Dixon, 2 April

1964, in Correspondence

on

Retirement as Chief Justice, 1964, Owen Dixon, Personal Papers. ‘The ground he put’, Dixon noted in his address on his retirement, ‘was that I could do some

good here; the ground others put was that I could do some good to myself by shedding a little work. That was a fallacious ground’. Essentially, he ‘came on the bench because I was told I ought’-—‘Upon Retiring from the Office of Chief 47 48 49

so

oF

Justice’, p. 256.

Zelman Cowen, Sir John Latham and Other Papers, p. 34 n. Alfred Hart, R. R. Garran, J. L. F Woodburn, et al., The History of the Wallaby Club 1894-1994,

List of ‘Clubs’ and ‘Subs’ on 26 February page of (largely unused) 1929 diary, which does not include the Riversdale Golf Club. Under ‘House ac/ts’ for the Clubs he also includes the Australian Club in Sydney where he stayed from time to time as an honorary member. Alan Brooksbank to Dixon, 4 September 1969; and attached letter to ‘Bob and Betty’ of the same date, in Correspondence 1960-1973, Owen Dixon, Personal Papers.

Margaret Connor, Sir Owen Dixon—Some Reminiscences, typescript memoir, p. 5; Paul Hasluck, Diplomatic Witness: Australian Foreign Affairs 1941-1947, p. 73; Edmund Jowett (growers’ representative on the CWC) to Dixon, 6 February 1929, in Congratulatory Messages on Appointment to the High Court of Australia, February 1929, Owen Dixon, Personal Papers. See also Sir Magnus Cormack (President of the Senate) to Betty Danby, 2 August 1972: ‘the first

authentic genius that Australia had produced’—in Correspondence 1960-1973, Owen Dixon, Personal Papers. Prof. William Macmahon

Ball in conversation

with Reginald Stock called Dixon’s ‘the greatest mind that I have ever known’ (reported to the author by Stock in 1999).

NOTES

5

(PAGES

56

TO

58)

A RELUCTANT JUSTICE ON HIGH COURT: 1929-1939

317

THE

Dixon to Latham, 7 April 1964, in Correspondence on Retirement as Chief Justice, 1964, Owen Dixon, Personal Papers. On the High Court generally see Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia. Dixon, ‘Upon Retiring from the Office of Chief Justice’, p. 258. Owen Dixon, Diary, 14 March 1936, reporting an Australian Natives Association dinner, Owen Dixon, Personal Papers.

Dixon, ‘Upon Retiring from the Office of Chief Justice’, p. 259. Starke to Dixon, 21 July 1926, in Congratulatory Messages on Appointment as Acting Justice of the Supreme Court of Victoria, July 1926, Owen Dixon, Personal Papers. Federated State School Teachers’ Association of Australia v Victoria (1929) 41 CLR 569 at 590. Dixon’s authorship attested by Richard Searby, his associate in the mid-1950s. After surveying a variety of relevant cases Dixon asserted that ‘The essential feature in all these instances is a mutuality in the relation of the constitutional powers: a reciprocal effect in the determination or ascertainment of the extent

or the constitutional supremacy of either of them. This feature is quite absent when the question is about the meaning or application of a check or restraint to which all the governments are subject’. Ex parte Nelson (No. 2) (1929) 42 CLR

258 at 272.

Attorney-General (New South Wales) v Trethowan (1931) 44 CLR 394, Dixon’s judgment (which he regarded as one of his most important) at 424. The Bavin Nationalist Government had amended the Constitution to require that any Bill

to abolish the Upper House had to be approved at a referendum before being presented for royal assent, and that any Bill to remove this requirement also had

to be submitted to a referendum. A key aspect of Dixon’s argument was (as he

nicely condensed it for his 1935 paper, ‘The Law and the Constitution’) that the

Colonial Laws Validity Act 1865, while conferring on self-governing colonies a power of constitutional alteration, ‘requires that laws exercising the power shall be passed in such manner and form as the law for the time being in force requires . .. But, at the same time, the proviso in one respect makes the law for the time being in force supreme over the colonial legislature. The very power of constitutional alteration cannot be exercised except in the form and manner which the

law for the time being prescribes. Unless the legislature observes that manner and

form, its attempt to alter its constitution is void. It may amend or abrogate for

the future the law which prescribes that form or that manner. But, in doing so,

it must comply with its very requirements’ (pp. 47-8). Trethowan’s Case would have a sequel of sorts in 1960: Clayton v Heffron (1960) 105 CLR 214. Mr Justice Windeyer in conversation with James Merralls, February 1977.

318

NOTES

(PAGES

59

TO

61)

Evatt to Sir John Latham, probably 6 May 1936, and see too Latham to Evatt,

5 July 1939, both in Latham Papers; also see Owen Dixon, Diary, 22 March u

1939, Owen Dixon, Personal Papers.

Ian Spry, Dixon’s last associate, vividly recalls that ‘Dixon referred, in conversation with me on many occasions, to Evatt’s “dishonesty”’. Conversation with

2 3

the author.

New South Wales v Commonwealth (No. 1) (1932) 46 CLR 155. New South Wales v Commonwealth (No. 1) (1932) 46 CLR 155 at 173-82.

The same can be said of their judgment in the follow-up case, New South Wales

“4 1s 16

18

v Commonwealth (No. 3) (1932) 46 CLR 246 at 258-64.

New South Wales v Commonwealth (No. 1) (1932) 46 CLR 155 at 178-9. New South Wales v Commonwealth (No. 1) (1932) 46 CLR 155 at 181-2.

Argus, 12 May 1932. Information on his support for the gold standard from James Merralls. Keynes’s The Economic Consequences of the Peace and A Treatise on Money are on one of the bookshelves behind Dixon in a photograph taken in his study in the early 1960s. James Merralls now owns the two volumes of A Treatise on Money, which are of the first edition. Dixon was not a collector of rare books or first editions, and he bought these at an early date. Unfortunately his library was not catalogued prior to its dispersal. Thomson v Palmer (1933) 49 CLR 507 at 529; Newbon v City Mutual Life Assurance Society Ltd (1935) 52 CLR 723 at 729 (judgment of Rich, Dixon and

Evatt, but wholly Dixon’s work—he

19

acknowledged authorship in Bennett v

Murray (1940) 64 CLR 382 at 404-5); and Grundt v Great Boulder Gold Mines Pty Ltd (1937) 59 CLR 641 at 660. McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457. The most significant

passage comes at pp. 476-7 (“When a party to a simple contract . . . damages for its breach’). Lord Wilberforce, in Johnson v Agnew [1980] AC 367 at 396-7, arguing for a new approach to the question of the right of an innocent party to a contract for the sale of land to damages on the contract being put an end to by accepted repudiation, supported ‘a more attractive and logical approach from another bastion of the common law whose courts have adopted a more robust attitude’, then proceeded to quote the above passage from Dixon’s judgment ‘which with typical clarity sets out the principle’, citing too a related judg20 a

ment of Dixon’s in Holland v Wiltshire (1954) 90 CLR 409.

Richard Searby (in conversation with the author) reporting Dixon reporting Higgins.

The original idea was said to have been that Gavan Duffy’s son Charles would be appointed to the Victorian Supreme Court, Gavan Duffy would later retire from the High Court, and Latham would meanwhile retire from politics, move for a decent space of months to the Bar, then be appointed Chief Justice, while Menzies would win Latham’s seat of Kooyong and be appointed AttorneyGeneral in Canberra. As it happened, Charles Gavan Duffy was appointed

to

the Supreme Court of Victoria on 30 May 1933, Latham retired from politics in

NOTES

(PAGES

62 TO

67)

319

1934, but Frank Gavan Duffy decided to stay on. See Stuart Macintyre, ‘John

Greig Latham’, p. 5. See also Zelman Cowen, Sir John Latham and Other

Papers, p. 31. Latham always claimed he retired from politics voluntarily, with

22

23

no thought of taking the Chief Justiceship. Owen Dixon, Diary, 16 January 1935, Owen Dixon, Personal Papers; and Dixon to Evatt, 9 February 1935, in High Court Correspondence 1930-40, Evatt Papers.

Dixon to Evatt, 17 June 1932, High Court Correspondence 1930-40, Evatt Papers. See also the letter from Dixon to Evatt of 11 December 1931 in the same

24

collection, discussing Evatt’s interpretation of the immigration power.

Owen Dixon, Diary, 29 April 1937, Owen Dixon, Personal Papers. The case was Australian Woollen Mills Ltd v E. S. Walton & Co. Ltd (1937) 58 CLR 641.

25 26 27 28 29 30

Owen Dixon, Diary, 14 February 1935, Owen Dixon, Personal Papers. Owen Dixon, Diary, 19 September 1935, Owen Dixon, Personal Papers. Owen Dixon, Diary, 15 February 1935, Owen Dixon, Personal Papers.

ET 32

W. & A. McArthur v Queensland (1920) 28 CLR 530.

33

Owen Dixon, Diary, 8 February 1935, Owen Dixon, Personal Papers.

Evatt to Latham, 12 October 1939, in Latham Papers. Owen Dixon, Diary, 18 February 1935, Owen Dixon, Personal Papers. Starke later claimed Menzies had advised Duffy to resign for his reputation’s sake, thus making his position untenable. Dixon, Diary, 16 April 1952. See for instance Willard v Rawson (1933) 48 CLR 316 at 329; R v Vizzard; ex parte Hill (1933) 50 CLR 30 at 56; Vacuum Oil Co. Pty Ltd v Queensland (1934) 51 CLR 108 at 123.

This misrepresentation is found even in Michael Coper’s excellent Freedom of

Interstate Trade Under the Australian Constitution, in Brian Galligan’s Politics of the High Court, and in Geoffrey Sawer’s Australian Federalism in the Courts,

p. 63 (where he describes Dixon’s approach as ‘laissez-faire’, ‘individualist’, ‘a considerable barrier to socialist measures and a direct protection to interstate private business enterprise’—as if that were Dixon’s purpose).

34

O. Gilpin Ltd v Commissioner for Road Transport and Tramways (New South

3s

In addition to Gilpin’s Case they were Vacuum Oil Co. Pty Ltd v Queensland

36 v 38 39 40 a a2

Wales) (1935) 52 CLR

189 at 202.

at (No. 2) (1935) 51 CLR 677 at 690; Tasmania v Victoria (1935) 52 CLR 157

179; and Bessell v Dayman (1935) 52 CLR 215 at 220. O. Gilpin Ltd v Commissioner for Road Transport and Tramways (New South Wales) (1935) 52 CLR 189 at 204, 206, 211.

Geoffrey Sawer, Australian Federal Politics and Law 1929-1949, p. 66.

Owen Dixon, diary, 6 and 4 March 1935, Owen Dixon, Personal Papers. Dixon, ‘The Law and the Constitution’, pp. 38-60. Owen Dixon, Diary, 14 March 1935, Owen Dixon, Personal Papers. Owen Dixon, Diary, 24 March 1935, Owen Dixon, Personal Papers. For instance, The King and His Dominion Governors, Injustice Within the Law, and Rum Rebellion.

320

NOTES

(PAGES

67

TO

71)

43 44 4s 46 a7 48 “a

Owen Dixon, Diary, 21 March 1935, Owen Dixon, Personal Papers.

50 31 32

Owen Dixon, Diary, 10-11 June 1935, Owen Dixon, Personal Papers. Owen Dixon, Diary, 12 March 1935, Owen Dixon, Personal Papers. Owen Dixon, Diary, 11 February 1935, Owen Dixon, Personal Papers. See too

53

54 58 56 57 58 59

Sydney Sun, 13 April 1935.

R v Dunbabin; ex parte Williams (1935) 53 CLR 434 at 447. R v Dunbabin; ex parte Williams (1935) 53 CLR 434 at 447. Owen Dixon, Diary, 28-29 May 1935, Owen Dixon, Personal Papers. Owen Dixon, Diary, 30 May 1935, Owen Dixon, Personal Papers.

Owen Dixon, Diary, 24-25 May 1935, Owen Dixon, Personal Papers.

the entries for 27 June and 7 August 1935. There are numerous examples of Dixon helping Rich, but just around this time see the diary entries for 20 April (doing Rich’s ‘homework’ for him), 3 May, 4 June (an important case, James v Commonwealth (1935) 52 CLR 570), and 10 July 1935. For one among several examples of Dixon writing a judgment for Rich in a case on which Dixon had not sat, see the diary entry for 12 April 1938: ‘Wrote a judgment for Rich to deliver in Coleman’s case. He did so without calling for an argument from the respondent’. For an example of Dixon helping McTiernan, see the entry for 10 July 1935: ‘McTiernan dined with me & then we composed his judgt in Southport case’. Starke Owen Owen Owen Owen Owen

to Latham, 17 October 1938, in Latham Papers. Dixon, Diary, 15 August 1935, Owen Dixon, Personal Papers. Dixon, Diary, 16, 17, 18, 19 August 1935, Owen Dixon, Personal Papers. Dixon, Diary, 11 October 1935, Owen Dixon, Personal Papers. Dixon, Diary, 21 and 27 August 1935, Owen Dixon, Personal Papers. Dixon, Diary, 25 August 1935; and Alice Dixon, Travel Journal 1922-

23, entry for 28 October 1922. Owen Dixon, Personal Papers. 6 62 63 64 65

66

Owen Dixon, Diary, 6 September 1935, Owen Dixon, Personal Papers.

Owen Dixon, Diary, 19 and 20 September 1935, Owen Dixon, Personal Papers. Owen Dixon, Diary, 18 September 1935, Owen Dixon, Personal Papers.

Owen Dixon, Diary, 29 September 1935, Owen Dixon, Personal Papers. Owen Dixon, Diary, 29 and 30 September 1935, Owen Dixon, Personal Papers. Owen Dixon, Diary, 1 October 1935, Owen Dixon, Personal Papers. This

remained Dixon’s view throughout his career. Compare his comment on judicial work in his address ‘Upon First Presiding as Chief Justice at Melbourne’: ‘it is the most difficult, most exacting and least satisfying of any work which I have had to attempt’ (p. 250). Dixon, ‘Science and Judicial Proceedings’, address of 30 September 1933 to the Medico-Legal Society of Victoria: ‘The relation of science and judicial proceedings is only a particular instance, although an extreme one, of the relation of all facts to the ascertainment of rights. Rights must depend upon facts, and facts are extremely difficult things’ (p. 22). Less than a year later, on 16 July 1934, he gave a paper to the Victorian Branch of the Australian Chemical Institute, on ‘The Law and the Scientific Expert’, focusing on the function of the scientific expert in legal

NOTES

(PAGES

71

TO

73)

321

cases, and the difficulties attendant on it. These difficulties are vividly illustrated

by reference to the ‘vague and indefinite criteria or standards of liability’ exemplified in the expressions ‘dangerous goods’, ‘reasonable care’, and ‘exercise of the inventive faculty or ingenuity’. Dixon shows how the application of these standards of liability to three hypothetical cases which he sets out requires an understanding both of law and of industrial chemistry. See Jesting Pilate, pp. 24-37. See Peter Balmford, ‘Wilbur Ham’, p. 172, where he mentions that ‘he is said to have refused appointment to the Supreme Court in 1934’. The year should read

68 6 70 7 72 73

‘1935’.

Owen Dixon, Diary, 8 October 1935, reporting second- and third-hand sources. Owen Dixon, Personal Papers. Owen Dixon, Diary, 17 October 1935, Owen Dixon, Personal Papers. Owen Dixon, Diary, 18 and 15 October 1935, Owen Dixon, Personal Papers.

On the Latham Court generally see Clem Lloyd, ‘Not Peace but a Sword!—The High Court Under J. G. Latham’. Owen Dixon, Diary, 19 October 1935, Owen Dixon, Personal Papers. Owen Dixon, Diary, 22 October, 1935, Owen Dixon, Personal Papers. An early example is the conference on the Metal Trades Case and the Tramways

Case

which took place between Rich, Evatt, McTiernan, and Dixon on 15 November 1935 (noted in Dixon’s diary entry for that day). Among other examples see the entry for 10 June 1937: ‘In the afternoon we had a cfce about Riverina Transport & Dried Fruit where politics predominated’; and that for 29 November 1939: ‘[Latham] [Evatt] [Rich] & I had a discussion over an appln for sp | [special leave] tomorrow in a custody case (Evans v Cleary) where the fight is

over religion’. Zelman Cowen’s ‘understanding’ that there ‘was no judicial conference’ until Dixon became Chief Justice is incorrect (Sir John Latham and

Other Papers, p. 34). Latham’s conduct of conferences on the Banking and Communist Party cases of 1948 and 1951 is discussed in Lloyd, ‘Not Peace but a

74 7s

76

Sword!’, p. 187. Information from James Merralls. Metal Trades Employers’ Association v Amalgamated Engineering Union (1935) 54 CLR 387, Dixon’s long and thoroughly argued dissent at 424, Starke’s briefer one at 422. Previous authority in the matter, which Dixon and Starke thought still persuasive, included Amalgamated Engineering Union v Alderdice Pty Ltd; in re Metropolitan Gas Co (1928) 41 CLR 402. Owen Dixon, Diary, 18 December 1935, Owen Dixon, Personal Papers.

Metal Trades Employers’ Association v Amalgamated Engineering Union (1935) 78 9 80

54 CLR 387 at 426.

R v Brislan; ex parte Williams (1935) 54 CLR 262 at 288. Owen Dixon, Diary, 27 November 1935, Owen Dixon, Personal Papers.

Dixon to Evatt, 26 November 1935, in High Court Correspondence 1930-40,

Evatt Papers. Dixon to Evatt, 26 November Evatt Papers.

1935, in High Court Correspondence

1930-40,

322 82 83

4 as 86

87 88 a9 na 92 93 4 9S 96

NOTES

(PAGES

73

TO

78)

Owen Dixon, Diary, 8 November 1935 (the beginning of a weeklong illness for Ted), Owen Dixon, Personal Papers.

The old boarding house/private hotel at 52 Macleay St had long since been pulled down. It had been very fashionable, its guests including Dame Nellie Melba. Dixon went to stay at ‘52 Macleay St in Greenknowe Ave’ on his first being appointed to the Court in 1929 because Chief Justice Knox, who had a house near by, had recommended the place, thinking Dixon could easily walk to Knox’s house to discuss cases after hours (something that rarely happened). Dixon stayed there during Sydney sittings until around 1957, at which time he went to stay at the Australian Club at the corner of Macquarie and Bent streets in the city (he was an honorary Life Member there). Information from Richard Searby. Betty Danby, conversation with the author. R v Sodeman [1936] VLR 99. See George Marshall Irving, ‘Arnold Karl Sodeman’, pp. 9-10. See also J. P. Bourke and D. S. Sonenberg, Insanity and Injustice; and R. S. Ellery, The Cow Jumped Over the Moon, pp. 186-8. Ellery was the prison psychiatrist who interviewed Sodeman. Dixon’s interest in criminal insanity is exemplified by his remarks on the subject to the Medico-Legal Society of Victoria on 2 April 1932. See Dixon, ‘Discussion’. A thoroughly recast, expanded and updated form of this was later read to the Hobart Medico-Legal Society on 18 February 1955, and published in that Society’s Proceedings for 1955. For Dixon’s later criticisms of developments in the definition of criminal insanity see his paper ‘A Legacy of Hadfield, M’Naghten and Maclean’. Sodeman v The King Sodeman v The King Sodeman v The King Sodeman v The King R v Porter (1933) 55

(1936) 55 (1936) 55 (1936) 55 (1936) 55 CLR 182.

CLR 192 at 211. CLR 192 at 213. CLR 192 at 223. CLR 192 at 219. Dixon’s charge to the jury was reprinted in Pro-

ceedings of the Medico-Legal Society of Victoria, 1 (1931-33), 49-52.

M’Naghten’s Case (1843) 10 Cl. & F200. Dixon, Owen Owen Owen

‘A Legacy of Dixon, Diary, Dixon, Diary, Dixon, Diary,

Hadfield, M’Naghten and Maclean’. 21 March 1936, Owen Dixon, Personal Papers. 30 March 1936, Owen Dixon, Personal Papers. 31 March 1936, Owen Dixon, Personal Papers. See also

3 April: ‘Lowe told me Starke had sd his remark to me about Chas D. thinking

Sodeman irresponsible had caused a lot of trouble. Lowe seemed inclined to minimise what he had said but on my saying he had told me that Chas thought Sode97 8 99

man was irresponsible or ought to have been found so he appeared to agree’. Owen Dixon, Diary, 1 April 1936, Owen Dixon, Personal Papers. Sodeman v The King (1936) 55 CLR 192 at 201, 204.

Sodeman v The King (1936) 55 CLR 192 at 205. Sodeman v The King (1936) 55 CLR 192 at 207.

Owen Dixon, Diary, 2 April 1936, Owen Dixon, Personal Papers.

NOTES

(PAGES

78

TO

84)

323

Owen Dixon, Diary, 5 June 1936, Owen Dixon, Personal Papers. Owen Dixon, Diary, 30 September 1936, Owen Dixon, Personal Papers.

Owen Dixon, Diary, 10 October 1937, Owen Dixon, Personal Papers. Dixon to Lord Morton, 25 November Owen Dixon, Personal Papers.

1959, in Correspondence

1957-1959,

Starke to Latham, 23 February 1937, in Latham Papers. The case was English

10 nw 12 13 “ 15 16 "7 18 9 20 a 22 23 24 25 26 7 28 29 30

Scottish and Australian Bank Ltd v Phillips (1937) 57 CLR 302. Starke to Latham, 31 March 1937, in Latham Papers. Owen Dixon, Diary, 26 February 1936, Owen Dixon, Personal Papers.

Owen Dixon, Diary, 30 July 1936, Owen Dixon, Personal Papers.

James v Commonwealth (1935) 52 CLR $70; [1936] AC 578; (1936) 55 CLR 1. W. & A. McArthur v Queensland (1920) 28 CLR 530. Owen Dixon, Diary, 3 February 1936, Owen Dixon, Personal Papers.

James v Commonwealth [1936] AC 578 at 630; (1936) 55 CLR 1 at 58. Geoffrey Sawer, Australian Federal Politics and Law 1929-1949, p. 95.

Owen Dixon, Diary, 21 July 1936, Owen Dixon, Personal Papers. Dixon to Latham, 27 July 1936, in Latham Papers.

Owen Dixon, Diary, 2 August 1936, Owen Dixon, Personal Papers. Owen Dixon, Diary, 2 September 1936, Owen Dixon, Personal Papers. James v Commonwealth [1936] AC 578 at 595; (1936) 55 CLR 1 at 20. See Owen Dixon, Diary, 29 January 1936, Owen Dixon, Personal Papers.

Owen Dixon, Diary, 2 August 1936, Owen Dixon, Personal Papers. James v Commonwealth (1936) 55 CLR 1 at 7-8; similarly [1939] AC 578 at

583.

James v Commonwealth (1936) 55 CLR 1 at 24; not quoted in [1936] AC 578. James v Commonwealth (1936) 55 CLR 1 at 25; not quoted in [1936] AC 578. James v Commonwealth [1936] AC 578 at 634; (1936) 55 CLR 1 at 62.

Dixon to Latham, 1 June 1937, in Latham Papers. Riverina Transport Pty Ltd v Victoria (1937) 57 CLR 327. Owen Dixon, Diary, 2 June 1937, Owen Dixon, Personal Papers. Riverina Transport Pty Ltd v Victoria (1937) 57 CLR

327 at 362. The case

whose conclusion was endorsed by the Privy Council in its 1936 James judgment u 32 3B 4 35 36 7 38

was R v Vizzard; ex parte Hill (1933) 50 CLR 30. Hartley v Walsh (1937) 57 CLR 372 at 389. James v Cowan [1932] AC 542; (1932) 47 CLR 386.

Dixon, ‘The Statute of Westminster, 1931’, pp. 98-9.

Owen Dixon, Diary, 22 January 1937, Owen Dixon, Personal Papers.

Owen Dixon, Diary, 26 April 1937, and several entries in July, Owen Dixon, Personal Papers. For Crotty see Geoffrey Blainey, ‘James Crotty’, p. 160. Margaret Connor, Sir Owen Dixon—Some Reminiscences, p. 4. Emphasis in original, Owen Dixon, Diary, 18 February 1937, Owen Dixon, Personal Papers. West v Commissioner of Taxation (New South Wales) (1937) 56 CLR

657;

Owen Dixon, Diary, 18 and 21 February 1937, Owen Dixon, Personal Papers.

324 9

NOTES

(PAGES

84

TO

88)

Amalgamated Society of Engineers v Adelaide Steamship Co. Ltd (1920) 28 CLR 129. On this subject see Leslie Zines, ‘Sir Owen Dixon’s Theory of Federalism’. Sir Robert Garran, ‘The Development of the Australian Constitution’, delivered at the University of London on 12 December 1923, p. 216.

a

Australian Railways

ar

CLR 319 at 390, 391. Emphasis added. West v Commissioner of Taxation (New South Wales) (1937) 56 CLR 681-2.

657 at

West v Commissioner

657 at

43

682. 4s 46 7 48

“9 50

Union v Victorian Railways

of Taxation

(New South

Commissioners

Wales)

(1937)

(1930) 44

56 CLR

Essendon Corporation v Criterion Theatres Ltd (1947) 74 CLR 1 at 22. Melbourne Corporation v Commonwealth (1947) 74 CLR 31 at 76-85. See Alfred Hart, R. R. Garran, J. L. F. Woodburn, et al., The History of the Wallaby Club 1894-1994, p. 66.

Owen Dixon, Diary, 25 March 1937, Owen Dixon, Personal Papers. Dixon’s associates right up to the early 1960s remember him charging up the stairs two steps at a time ahead of them to his chambers in the High Court’s building in Sydney. Details for this trip from Owen Dixon, Diary, 25-30 March 1937, Owen Dixon,

Personal Papers. Alfred Hart, R. R. Garran, J. L. F Woodburn, et al., The History of the Wallaby Club, p. 66. The Latin lines translate as ‘Let justice be done!’, ‘A wise man, a companion, a walker’, and ‘Nothing he touched that he did not adorn’. The last line is a doggerel version of Samuel Johnson’s line in his epitaph on Oliver Gold-

st 52 53 54

smith: ‘... nihil quod tetigit non ornavit’. Seton v Lafone (1886) 19 QBD 74.

See also Dixon’s paper, ‘Science and Judicial Proceedings’, in which he had made this point to the Medico-Legal Society of Victoria on 30 September 1933. Scott v Shepherd (1773) 2 Wm. Bl. 892; 96 ER 525.

Dixon, draft of this Address on Causation and the Law, to the Law Students’ Society, University of Melbourne, 22 March 1937, in Owen Dixon, Personal Papers. My quotations are an amalgam

$s 56 s7

58 59

précis, which preserved.

Dixon

of Dixon’s manuscript notes and the

solicited from John

Kinnear,

and

which

he carefully

Owen Dixon, Diary, 19 August 1937, Owen Dixon, Personal Papers.

Dixon, ‘Jesting Pilate’, George Adlington Syme Oration to the Royal tralasian College of Surgeons, 20 August 1957, p. 10.

Aus-

Notably Chapman v Hearse (1961) 106 CLR 112, which concerned reasonable foreseeability as a criterion for the existence of a legal duty of care. He could not contain himself during argument and then wrote the joint judgment.

Dixon, ‘De Facto Officers’.

No evidence of all this, of course, appears in the report of the (reargued) case, Nassoor v Nette (1937) 58 CLR 446.

NOTES 60 6 62 63 oF 65

(PAGES

88 TO

93)

Owen Dixon, Diary, 1-2 April 1937, Owen Dixon, Personal Papers. Owen Dixon, Diary, 9-10 April 1937, Owen Dixon, Personal Papers. Owen Dixon, Diary, 31 July 1937, Owen Dixon, Personal Papers.

Zelman Cowen, Sir John Latham and Other Papers, p. 35.

Owen Dixon, Diary, 2 October 1936 and 12 April 1937, Owen Dixon, Personal Papers. See James Merralls, ‘Sword of Honour’; and Merralls, ‘Sir Hayden Erskine

Starke’. As a barrister Starke had once been treated rudely in Court by Mr Hodges, who later offered an apology in the lavatory of their club. Starke ‘An insult offered in open court cannot be wiped out by an apology in a Quoted in Arthur Dean, A Multitude of Counsellors: A History of the 66 07 68 6 70 a 72 73 74 75 76 7 8 9 80

81 82 83 84 85

46 a7 88 89

325

Justice replied, urinal’. Bar of

Victoria, p. 180. See Ronald McNicoll, ‘Seaforth Simpson Mackenzie’. Owen Dixon, Diary, 27 August 1936, Owen Dixon, Personal Papers.

Owen Dixon, Diary, 14 and 17 September 1937, Owen Dixon, Personal Papers.

Owen Dixon, Diary, 5 October 1937, Owen Dixon, Personal Papers.

(1938) 59 CLR 17. Evatt joined in Dixon’s dissenting judgment.

Owen Owen Owen Owen Owen Owen

Dixon, Dixon, Dixon, Dixon, Dixon, Dixon,

Diary, Diary, Dairy, Diary, Diary, Diary,

4 November 1937, Owen Dixon, Personal Papers. 25 November 1937, Owen Dixon, Personal Papers. 2 May 1936, Owen Dixon, Personal Papers. 25 August 1938, Owen Dixon, Personal Papers. 30 April 1938, Owen Dixon, Personal Papers. 3 May 1938, Owen Dixon, Personal Papers.

Owen Dixon, Diary, 26 November 1938, Owen Dixon, Personal Papers. Owen Dixon, Diary, 16 May 1938, Owen Dixon, Personal Papers. Owen Dixon, Diary, 30 November 1938, Owen Dixon, Personal Papers.

See, for instance, Owen Dixon, Diary, 1 April 1938, reporting Whiskard’s address to Dixon’s dining circle in Sydney, when he talked about the West’s small

hold on civilisation. Owen Dixon, Personal Papers.

See, for example, Owen Dixon, Diary, 24 April, 28 July and 2 August 1938, among many entries of the kind. Owen Dixon, Diary, 14 April 1938, Owen Dixon, Personal Papers.

Clapp’s American-born father, F. B. Clapp, designed and ran Melbourne’s cable trams in the late nineteenth century. Owen Dixon, Diary, 22 May and 11 June 1938, Owen Dixon, Personal Papers.

Owen Dixon, Diary, 12 October 1938. Menzies professed concern too, telling Dixon that month that he was ready to resign from Cabinet over defence— Owen Dixon, Diary, 31 October 1938, Owen Dixon, Personal Papers. Owen Dixon, Diary, 5 August 1938, Owen Dixon, Personal Papers. Owen Dixon, Diary, 6 August 1938, Owen Dixon, Personal Papers.

R v Federal Court of Bankruptcy; ex parte Lowenstein (1938) 59 CLR 556. R v Kirby; ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254. (1939) 61 CLR 634.

326 nm 2

NOTES

(PAGES

93

TO

97)

(1937) 59 CLR 279 at 297.

Sun Newspapers Ltd and Associated Newspapers Ltd v Federal Commissioner of Taxation (1938) 61 CLR 337 at 357-65. Compare Hallstroms Pty Ltd v Federal Commissioner of Taxation (1946) 72 CLR 634 at 645-52, where Dixon, through want of other authority, is forced to cite himself on the question; and

Ronpibon Tin N.L. and Tongkah Compound N.L. v Federal Commissioner of

a

95

Taxation (1949) 78 CLR 47.

‘Spent all day doing R’s Sun Newspapers Ltd and Associated Newspapers Ltd ... Finished R’s judgt at 2.15 am.’ Owen Dixon, Diary, 14 September 1938, Owen Dixon, Personal Papers. Rich, one assumes, made the actual judgment and Dixon then wrote it up for him. Interestingly, in 1949 Dixon would take strong exception to what he would take to be T. S. Clyne’s writing of a judgment of Rich’s in an appeal against Clyne himself (discussed in chapter 10). Sun Newspapers Ltd and Associated Newspapers Ltd v Federal Commissioner of Taxation (1938) 61 CLR 337 at 361-3. Starke to Latham, 20 November 1938, in Latham Papers. The case was Piggott v Piggott (1938) 61 CLR 378. Starke’s comment is unfair to the extent that

although condonation by the husband of his wife’s adultery, not the legitimacy of the child, was the principal issue, the question of the child’s legitimacy bore on the question of condonation. Dixon’s judgment, however, does seem extraordinarily confident in its use of deductive logic in the murky circumstances of

this case.

Owen Dixon, Diary, 6, 8, 10 January 1938, Owen Dixon, Personal Papers.

Owen Dixon, Diary, 1 and 7 February 1938, Owen Dixon, Personal Papers. Owen Owen Owen Owen Owen Owen

Dixon, Dixon, Dixon, Dixon, Dixon, Dixon,

Diary, Diary, Diary, Diary, Diary, Diary,

Personal Papers.

10 February 1938, Owen Dixon, Personal Papers. 19 April 1938, Owen Dixon, Personal Papers. 1 April 1938, Owen Dixon, Personal Papers. 6 September 1938, Owen Dixon, Personal Papers. 29 November 1938, Owen Dixon, Personal Papers. 16, 18, 26, 29, 30, 31 December 1938, Owen Dixon,

See Owen Dixon, Diary, January 1939, Owen Dixon, Personal Papers; photo-

graphs of Marcia Dunn and Alan Brooksbank accompanying an article in Argus, 4 March 1939. Owen Dixon, Diary, 14 and 9 January 1939, Owen Dixon, Personal Papers. Owen Dixon, Diary, 27, 18, 3, 19, 31 January 1939, Owen Dixon, Personal Papers. Owen Dixon, Diary, 25 January 1939, Owen Dixon, Personal Papers. 10 W R 1a

Owen Dixon, Diary, 2 February 1939, Owen Dixon, Personal Papers. P. A. Howell, ‘Frederick Alexander James’, p. 465. James v Commonwealth (1939) 62 CLR 339. Owen Dixon, Diary, 8 February 1939, Owen Dixon, Personal Papers.

For instance during this trip he observed that the DC3 ‘Kurama’ was stranded at Hobart ‘because the magnet in the oil tubes had picked up a small piece of

NOTES

(PAGES

98

TO

104)

327

steel probably from a ball bearing’. Owen Dixon, Diary, 25 February 1939, Owen Dixon, Personal Papers. See Owen Dixon, Diary, 13 January 1960, Owen Dixon, Personal Papers. R. G.

Casey told Dixon that Lord Bruce and Menzies ‘as well as he himself observed the same rules of exclusion’. Owen Dixon, Diary, 20 February 1939, Owen Dixon, Personal Papers. This is the day cited as the Robinsons’ (Melbourne) wedding day in Leonie Foster, ‘Sir Arthur Robinson’, p. 423. They must have flown down to Hobart that afternoon. Owen Dixon, Diary, 21 February 1939, Owen Dixon, Personal Papers.

18 19

Owen hated accept Owen

Dixon, Diary, 2, 6, 8 March 1939, Owen the atmosphere of the Arbitration Court. the position of Judge of the Federal Court Dixon, Diary, 7 and 13 April 1939, Owen

Dixon, Personal Papers. Clyne In November 1942 he would of Bankruptcy. Dixon, Personal Papers.

Owen Dixon, Diary, 14 and 18 April 1939, Owen Dixon, Personal Papers.

6

FAMILY

FIRST:

1939

Owen Dixon, Diary, 18, 21, 25, 29 April 1939, Owen Dixon, Personal Papers.

Dixon recorded his 1939 trip with Franklin and Ted to England and the United States in his 1939 diary and in a separate, parallel but fuller account beginning on their arrival at Dover, his 1939 Travel Journal, a carbon copy of which survives.

eke

kee

Pages from the top copy were probably sent home for general information.

10

Owen Dixon, Diary, 2, 5, 6 May 1939, Owen Dixon, Personal Papers. Margaret Connor, Sir Owen Dixon—Some Reminiscences, p. 6. Owen Dixon, Diary, 7-10 May 1939, Owen Dixon, Personal Papers.

Owen Dixon, Diary, 14 May 1939, Owen Dixon, Personal Papers. Owen Dixon, Diary, 19-20 May 1939, Owen Dixon, Personal Papers. Owen Dixon, Diary, 19-20 May 1939, Owen Dixon, Personal Papers. James Merralls, ‘The Rt. Hon. Sir Owen Dixon, O.M., G.C.M.G., 1886-1972’, p. 434.

Owen Dixon, Diary, 23-24 May Owen Dixon, Personal Papers.

1939, and 1939 Travel Journal, 24 May,

1939 1939 1939 1939 1939

1-2 June, Owen Dixon, Personal Papers. 1 and 8 June, Owen Dixon, Personal Papers. 23 May, Owen Dixon, Personal Papers. 6 June, Owen Dixon, Personal Papers. 7 June, Owen Dixon, Personal Papers.

Owen Dixon, Papers. Owen Dixon, Owen Dixon, Owen Dixon, Owen Dixon, Owen Dixon,

Diary and 1939 Travel Journal, 1 June, Owen Travel Travel Travel Travel Travel

Journal, Journal, Journal, Journal, Journal,

Dixon, Personal

Owen Dixon, 1939 Travel Journal, 13 June, Owen Dixon, Personal Papers. Owen Dixon, 1939 Travel Journal, 14 June, Owen Dixon, Personal Papers. See Alan Watt, Australian Diplomat: Memoirs of Sir Alan Watt, p. 18, on the history of the position, first held by R. G. Casey.

328 19 20 a 2

23 4 25 26 Y 28 » 0 uM 32 33

34 35 36 7 38 39

NOTES

(PAGES

104

To

114)

Owen Dixon, 1939 Travel Journal, 15 June, Owen Dixon, Personal Papers. Owen Dixon, Diary, 8 June 1939, Owen Dixon, Personal Papers. Owen Dixon, 1939 Travel Journal, 16 June, Owen Dixon, Personal Papers.

On von Trott’s trips to England during June 1939 see Klemens von Klemperer (ed.), A Noble Combat: The Letters of Sheila Grant Duff and Adam von Trott zu Solz 1932-1939, editor’s note, pp. 354-5. Owen Dixon, Diary and 1939 Travel Journal, 17-18 June, Owen

sonal Papers.

Dixon, Per-

Owen Dixon, 1939 Travel Journal, 19 June, Owen Dixon, Personal Papers. Owen Dixon, 1939 Travel Journal, 21-22 June, Owen Dixon, Personal Papers. Owen Dixon, 1939 Travel Journal, 24 June (discussion with Dallos), 26 June (with Hunter), Owen Dixon, Personal Papers.

Owen Dixon, 1939 Travel Journal, July, passim, Owen Dixon, Personal Papers. Owen Dixon to Latham, 25 June 1939, in Latham Papers.

Owen Dixon, 1939 Travel Journal for 25 July 1939, Diary and Travel Journal

for the other relevant dates.

Owen Dixon, 1939 Travel Journal, 13 July, Owen Dixon, Personal Papers. Owen Dixon, Diary and 1939 Travel Journal, 14-17 July, Owen Dixon, Personal Papers. Owen Dixon, 1939 Travel Journal, 18 July, Owen Dixon, Personal Papers.

Simon’s account of the Cabinet meeting and these last comments of his are not found in Dixon’s Diary or 1939 Travel Journal but in Dixon’s paper on ‘International Relations’, delivered 30 June 1949 at the University of Melbourne. Owen Dixon, 1939 Travel Journal, 19 July, Owen Dixon, Personal Papers.

Owen Dixon to Latham, 29 July 1939, in Latham Papers.

Margaret Connor, Sir Owen Dixon—Some Reminiscences, p. 6.

Owen Dixon, 1939 Travel Journal, 20-21 July, Owen Dixon, Personal Papers. Owen Dixon, 1939 Travel Journal, 22-24 July, Owen Dixon, Personal Papers. Owen

Dixon,

1939

Travel Journal, 27 July, Owen

Dixon,

Personal

Papers.

Dixon mentions that Wheare ‘had read my papers’, which must refer to these. 4 ar 43

4s 46 a7 48 49

Owen Dixon to Latham, 29 July 1939, Latham Papers.

Owen Dixon, 1939 Travel Journal, 31 July, Owen Dixon, Personal Papers. Owen Dixon, 1939 Travel Journal, 1-2 August, Owen Dixon, Personal Papers. Owen Dixon, Diary and 1939 Travel Journal, 2-7 August, Owen Dixon, Per-

sonal Papers. Owen Dixon, 1939 Travel Journal, 7-9 August, Owen Dixon, Personal Papers.

Owen Dixon, Diary and 1939 Travel Journal, 9-12 August, Owen Dixon, Per-

sonal Papers. Owen Dixon, Diary and 1939 Travel Journal, 12-15 August, Owen Dixon, Personal Papers. Owen Dixon, 1939 Travel Journal, 16 August, Owen Dixon, Personal Papers. Owen Dixon, Diary, 19-20 August 1939, Owen Dixon, Personal Papers.

Owen Dixon, Diary and 1939 Travel Journal, 22 August-—3 September passim. He refers to Menzies’ statement that as Britain was now at war with Germany, Australia was also at war.

NOTES 50

(PAGES

114

To

119)

329

Owen Dixon, Address to the British War Relief Society, New York City, 16 February 1943, Owen Dixon, Personal Papers.

7

WARTIME

WORK IN 1939-1942

AUSTRALIA:

On the work of the CWC during World War II see the admirably thorough

treatment in Christopher Fyfe, Gentlemen’s Agreements: Australian Wartime Wool Appraisements, pp. 120-367. For a shorter summary of its work see S. J. Butlin, War Economy 1939-1942, pp. 60-6. There is also the preface and chapter 1 of Sir Edwin McCarthy’s Wool Disposals 1945-52: The Joint Organization. Owen Dixon, Diary, 5-6 September 1939, Owen Dixon, Personal Papers. His

list for this first CWC meeting does not include McGregor. Christopher Fyfe,

Gentlemen's Agreements, p. 134, states that McGregor was at the meeting, no minutes of which survive, but Dixon’s list is considerably fuller than Fyfe’s and written up immediately afterwards. Following the pattern established in the previous war, profits from sales to third parties were to be shared between Britain and Australia. Owen Dixon, Diary, 7 September 1939, Owen Dixon, Personal Papers. Owen Dixon, Diary, 9-11 September 1939, Owen Dixon, Personal Papers;

Central Wool Committee, Verbatim Notes of Proceedings at Meetings, 11 Sep-

tember 1939, Bundle 1, in Owen Dixon, Files at Australian Archives; and Fyfe, Gentlemen’s Agreements, p. 135. Owen Dixon, Diary, 12-13 September 1939, Owen Dixon, Personal Papers. See

also Fyfe, Gentlemen's Agreements, p. 124. Owen Dixon, Diary, 14 September 1939, Owen Dixon, Personal Papers. Owen

Dixon, Diary, 15 September

1939, Owen

Dixon, Personal Papers. See

also Paul Hasluck, The Government and the People 1939-1941, p. 162. 10 " 2 B “4 15

Owen Dixon, Owen Dixon, Brooksbank, Owen Dixon,

Diary, 16 September 1939, Owen Dixon, Personal Papers. Diary, 16 September 1939, reporting his brother-in-law Walter Owen Dixon, Personal Papers. Diary, 19 September 1939, Owen Dixon, Personal Papers.

Owen Dixon, Diary, 23-4 September 1939, Owen Dixon, Personal Papers.

Owen Dixon, Diary, 26-9 September 1939, Owen Dixon, Personal Papers. R v Martin; ex parte Wawn (1939) 62 CLR 457 at 462. In R v Connare; ex parte Wawn (1939) 61 CLR 596 at 617 he had been able to

argue additionally that because the transaction involved a sale of a ticket then in New South Wales it ‘was not in itself a transaction of inter-State trade, com-

16

merce, or intercourse’.

Owen Dixon, Diary, 30 November 1939, Owen Dixon, Personal Papers. The case was Evans v Evans and Cleary (unreported). See (1939) 56 WN (NSW) 168 for the background. The adulterous wife had been divorced, become a Roman Catholic, married the co-respondent Cleary (a Roman Catholic), and they were

now having the children of her previous marriage educated at Roman Catholic

330

NOTES

boarding

schools,

(PAGES

to which

119

TO

122)

their father objected.

towards adulterous wives, the Irish, and Roman

decision is understandable.

Given

Dixon’s

attitudes

Catholicism, his view of the

Owen Dixon, Diary, 28 and 30 October 1939, Owen Dixon, Personal Papers.

Frank Young’s pejorative term, used in a letter of complaint to Bell, and men-

tioned in Owen Dixon, Diary, 26 October 1939, Owen Dixon, Personal Papers.

Young was the most difficult member of the CWC, with an implacable enmity 9 20 u

2

towards Yeo.

Owen Dixon, Diary, 23 October 1939, Owen Dixon, Personal Papers. Owen Dixon, Diary, 31 October 1939, Owen Dixon, Personal Papers.

Owen Dixon, Diary, 25 October, 3 and 6 November 1939, Owen Dixon, Personal Papers. See also Douglas Gillison, Royal Australian Air Force 1939-1942, p. 135.

The Waterfall Farm Fly Fishing Club, of which Dixon was not a member. Those present included Sir Thomas Bavin, former Premier of New South Wales, and

2B 4

28 26 27 28

29 30

31 32 3B 4 as 36

the surgeon Harold Dew.

Owen Dixon, Diary, 13 January 1940, Owen Dixon, Personal Papers.

In April Blamey rang Dixon Citizen Miltary Forces could into it and told Blamey that ‘offered my services-—Owen Personal Papers.

after being told that officers in the Permanent or not take a lower rank in the AIF. Dixon looked there was no legal bar to reduction of rank, and Dixon, Diary, 18-19 April 1940, Owen Dixon,

Owen Dixon, Diary, 15 January 1940, Owen Dixon, Personal Papers. Owen Dixon, Diary, 9 March 1940, Owen Dixon, Personal Papers. Owen Dixon, Diary, 10 May 1940, Owen Dixon, Personal Papers. Owen Dixon, Diary, 12 May 1940, Owen Dixon, Personal Papers. The ‘Jap

difficulty’ was explained in Dixon’s diary entry for 11 May: Japanese ships laden with wool and held up by the unions ‘had been cleared as a result of CWC activity’. Owen Dixon, Diary, 13 May 1940, Owen Dixon, Personal Papers.

Owen Dixon, Diary, 14 May 1940, Owen Dixon, Personal Papers. Harold Addison Woodruff was Professor of Bacteriology, Raymond Maxwell Crawford Professor of History at the University of Melbourne. Crawford would be appointed First Secretary of the Australian Legation in Moscow in 1942. Owen Dixon, Diary, 24 May 1940, Owen Dixon, Personal Papers. Owen Dixon, Diary, 30 June 1940, Owen Dixon, Personal Papers. In later years Dixon developed a high regard for Burnet. Federal Commissioner of Taxation v Official Liquidator of E. O. Farley Ltd (1940) 63 CLR 278 at 299.

‘Owen Dixon Chambers Official Opening 16th October 1961’, p. 401. Federal Commissioner of Taxation v Official Liquidator of E. O. Farley Ltd. (1940) 63 CLR 278 at 312-13.

Federal Commissioner of Taxation v Official Liquidator of E. O. Farley Ltd. (1940) 63 CLR 278 at 323. Owen Dixon, Diary, 27 June 1940, Owen Dixon, Personal Papers.

NOTES 38 39

40 4a a2

(PAGES

123

TO

126)

331

Owen Dixon, Diary, 1 July 1940, Owen Dixon, Personal Papers. Owen Dixon, Diary, 2, 5 and 7 July 1940, Owen Dixon, Personal Papers. Over

the following weeks the British tried to delay Latham’s appointment to Tokyo as their relations with Japan worsened. Owen Dixon, Diary, 11 July 1940, Owen Dixon, Personal Papers. Owen Dixon, Diary, 28 August 1940, Owen Dixon, Personal Papers. Owen Dixon, Diary, 31 August 1940, Owen Dixon, Personal Papers.

A few

days later, however, Dixon learned from Sir George Knowles, Commonwealth

Solicitor-General, that Sir Frederick Jordan, Chief Justice of New South Wales,

“a 4s 46 7 48

49 50

st 32 53 54

was now Menzies’ first preference. ‘I arranged to find out whetherJ [Jordan] wd consider it Rang Rich who rang him. Reply definitely no.’ Dixon, Diary, 5 September 1940. Owen Dixon, Diary, 25 October 1940, Owen Dixon, Personal Papers.

Owen Dixon, Diary, 3 September 1940, Owen Dixon, Personal Papers. Owen Dixon, Owen Owen Owen

Dixon, Diary, 23 October (appointment) and 24 August 1940, Owen Personal Papers. Dixon, Diary, 1 October 1940, Owen Dixon, Personal Papers. Dixon, Diary, 4 October 1940, Owen Dixon, Personal Papers. Dixon, Diary, 4 October 1940, Owen Dixon, Personal Papers. In 1939

Page, as leader of the Country Party, had accused Menzies in Parliament of cowardice for not having enlisted in World War I, and of disloyalty to Lyons, and there was now deep enmity between them. The comment on him here is interesting. From June 1940 Page, following a period out of Cabinet, had been reappointed Minister for Commerce, and Menzies was compelled to retain him in the position in his new Government. Dixon in conversation with Prof. Harold Woodruff, Owen Dixon, Diary, 5 Oct-

ober 1940, Owen Dixon, Personal Papers. See, for instance, Owen Dixon, Diary, 9 May, 6 June, 25 July, 8 August

1941

(three dinner parties given by various Japanese and a cocktail party given by Lady Latham), Owen Dixon, Personal Papers. Information on the Japanese from David Sissons of Canberra. Australian

Wool

Committee,

Verbatim

Notes

of Proceedings

at Meetings,

Australian

Wool

Committee,

Verbatim

Notes

of Proceedings

at Meetings,

23 October 1940, Bundle 2, in Owen Dixon, Files at Australian Archives. Owen Dixon, Diary, 11 July 1940, Owen Dixon, Personal Papers.

11 September 1940, Bundle 2, in Owen Dixon, Files at Australian Archives. Owen Dixon, Diary, 13 September 1940, Owen Dixon, Personal Papers. Section

44 (iv) states that ‘Any person who. . . holds any office of profit under the Crown

. . . Shall be incapable of . . . sitting as a senator or a member of the House of Representatives’. Next day ‘Yeo sd. he had only just prevented gazettal of McBride’s

appointment’—Owen

55 56

Dixon, Diary, 14 September

1940. As positions on the

CWC were honorary the point in question perhaps related to per diem payments for expenses or the like. See Fyfe, Gentlemen's Agreements, pp. 187-9. Fyfe, Gentlemen's Agreements, pp. 188-9.

332 7 58

9

NOTES

(PAGES

126

TO

130)

Owen Dixon, Diary, 12 December 1940, Owen Dixon, Personal Papers. Owen Dixon, Diary, 31 March 1941, Owen Dixon, Personal Papers. The CWC

continued to oppose the establishment of additional centres under Curtin’s Labor Government—Fyfe, Gentlemen’s Agreements, pp. 193-4. Owen Dixon, Diary, 30 January 1941, Owen Dixon, Personal Papers; Central

Wool Committee, Verbatim Notes of Proceedings at Meetings, 30 January 1941, Bundle 2, in Owen Dixon, Files at Australian Archives.

60

Central Wool Committee, Verbatim Notes of Proceedings at Meetings, 28 Jan-

61

Central Wool Committee, Verbatim Notes of Proceedings at Meetings, 27 Aug-

62 63

65 67

uary 1942, Bundle 4, in Owen Dixon, Files at Australian Archives.

ust 1941, Bundle 3, in Owen Dixon, Files at Australian Archives.

See Butlin, War Economy 1939-1942, pp. 177-82.

Owen Dixon, Diary, 2 December 1940, Owen Dixon, Personal Papers.

Owen Dixon, Diary, 17 January 1941, Owen Dixon, Personal Papers. Other members were Frank Murphy as Secretary of the Department of Commerce and John Langley Webb for the Associated Steamship Owners, supplemented in March by a Chief Executive Officer, J. F Brame, also of the Associated Steamship Owners, and H. Sullivan, Secretary. On the SCB generally see the detailed account in Butlin, War Economy 1939-1942, pp. 177-82 and 188-94. John Bach’s A Maritime History of Australia contains useful material on the SCB. Butlin, War Economy 1939-1942, p. 182. Owen Dixon, Diary, 17-22 January 1941, Owen Dixon, Personal Papers.

Minutes of meeting at the Navy Office, 26 February 1941, in Coastal Shipping Control Board, Papers of Sir Owen Dixon, Chairman, folder 8, in Owen Dixon,

68

° 70 7 2 2B 74

75 76 7

Files at Australian Archives. Dixon’s chairmanship of the SCB involved regular attendance at meetings under direction of the Chief of Naval Staff. The first meeting was held on 24 February 1941. Members aside from Dixon were Walter C. Balmford (Commonwealth Actuary), Professor Douglas B. Copland (Prices Commissioner), and T. S. Douglas (President, Council of Marine Underwriters Association of Australia).

On the scheme generally see Butlin, War Economy 1939-1942, pp. 184-6.

Owen Dixon, Diary, 13 June 1941, Owen Dixon, Personal Papers. Owen Dixon, Diary, 14 June 1941, Owen Dixon, Personal Papers.

Owen Dixon, Diary, 31 July and 6 August 1941, Owen Dixon, Personal Papers. Owen Dixon, Diary, 30 August 1941, Owen Dixon, Personal Papers.

Owen Dixon, Diary, 1 September 1941, Owen Dixon, Personal Papers. On the circumstances surrounding Menzies’ resignation see A. W. Martin, Robert Menzies, A Life, vol. I, pp. 380-3. Owen Dixon, Diary, 3 September 1941, Owen Dixon, Personal Papers. In invitos: against reluctant people. Owen Dixon, Diary, 5 October 1941, Owen Dixon, Personal Papers.

Commonwealth Transport Advisory Board, Papers of Sir Owen Dixon, in Owen Dixon, Files at Australian Archives; Owen Dixon, diary, 5, 19, and 27 October

1941, Owen Dixon, Personal Papers. The Board was previously known as the Principal (Transport) Committee.

NOTES 7”

"9 x0 81

R2 83 84 KS 86

88 89

(PAGES

131

TO

136)

333

On negotiations over price see Fyfe, Gentlemen’s Agreements, pp. 258-63. On

23 May 1942 Curtin would announce an agreed increase to 15.4531 pence Australian per pound. Owen Dixon, Diary, 7-8 November 1941, Owen Dixon, Personal Papers. Owen Dixon, Diary, 15 November 1941, Owen Dixon, Personal Papers. The Japanese Legation staff and most of the business community were repatri-

ated on the City of Canterbury in the exchange of internees via Lourengo Marques in July 1942. I am grateful to David Sissons for information on Latham’s and Dixon’s Japanese contacts. Owen Dixon, Diary, 8 December 1941, Owen Dixon, Personal Papers. Owen Dixon, Diary, 9-10 December 1941, Owen Dixon, Personal Papers.

Owen Dixon, Diary, 24 December 1941, Owen Dixon, Personal Papers.

Owen Dixon, Diary, 25 December 1941, Owen Dixon, Personal Papers. ‘Mr B.’ is Alice’s father, ‘Walter’ her brother.

Owen Dixon, Diary, 26-27 December 1941, 1 and 8 January 1942, Owen Dixon, Personal Papers. On this subject and associated issues see S. J. Butlin and C. B. Schedvin, War Economy 1942-1945, pp. 215-46. Owen Dixon, Diary, 13 January 1942, Owen Dixon, Personal Papers.

Paul Hasluck, Diplomatic Witness: Australian Foreign Affairs 1941-1947, p. 44. See Butlin and Schedvin, War Economy 1942-1945, pp. 217-19. The initial

membership comprised Dixon for the SCB as Chairman, Sir Thomas Gordon

n 2 93 94

representing the British Ministry of War Transport, and representatives of the United States War Shipping Administration, the Department of Commerce, the Royal Australian Navy, and the British Phosphate Commission. Owen Dixon, Diary, 4 March 1942, Owen Dixon, Personal Papers.

Allied Consultative Shipping Council, Papers of Sir Owen Dixon, in Owen Dixon, Files at Australian Archives. On the circumstances surrounding this see Watt, Australian Diplomat: the Memoirs of Sir Alan Watt, pp. 44-6. Owen Dixon, Diary, 19-21 March 1942, Owen Dixon, Personal Papers. Gorman

later told Dixon that Curtin had also discussed the Washington position with 9s 9%

97

98 99

him—Owen Dixon, Diary, 8 April 1942. Owen Dixon, Diary, 23, 25, 27 March 1942, Owen Dixon, Personal Papers. Owen Dixon, Diary, 28 March 1942, Owen Dixon, Personal Papers. It is inter-

esting in this regard to remember that Percy Spender, former Army Minister and Treasurer, had wanted the Tokyo post. Replying to congratulations from the barrister John Barry, Dixon wrote ‘I have no idea how long I shall be away, but I regard the appointment as depending on the course of the war’. Letter of 28 April 1942, in John Barry, Papers. Owen Dixon, Diary, 16 April 1942, Owen Dixon, Personal Papers. The arrangement is very clear from Curtin’s letter to Dixon of 19 May 1942; ‘As the accredited representative of the Australian Government on the Pacific War Council at Washington, which was constituted to deal with the higher direction

of War Policy and operations in the Pacific Area, you will be responsible direct

334

NOTES

(PAGES

136

TO

142)

to me as Prime Minister and Minister for Defence. I shall be glad if, immediately

following each meeting, you will send me cabled advice of the discussions and conclusions reached. This information should be supplemented by any special observations of your own, of which you consider I should be aware. Your cablegrams, where necessary, should be followed by despatches by mail’, Curtin to Dixon, 19 May 1942, copy in Advisory War Council Minute Files, ‘Discussions with Sir Owen Dixon, Australian Minister to USA’, 1942, in Owen

Dixon, Files

at Australian Archives. Watt, Australian Diplomat, p. 51. See R. A.C. Parker, Struggle for Survival: The History of the Second War, pp. 116-18. Owen Dixon, Diary, 20 April 1942, Owen Dixon, Personal Papers. Owen Dixon, Diary, 4 and 5 May 1942, Owen Dixon, Personal Papers. state of Australia’s international reserves, the impact thereon of ‘reverse Lease’, and negotiations at this time between Australia and the United over the limits of Australian reciprocal aid, see Butlin and Schedvin, War omy 1942-1945, pp. 131-40.

World

On the LendStates Econ-

See Douglas Gillison, Royal Australian Air Force 1939-1942, pp. 469 and 559. Owen Dixon, Diary, 8-9 May 1942, Owen Dixon, Personal Papers. Advisory War Council Minute, Canberra, 19 May 1942, in Advisory War Council Minutes Files, ‘Discussions with Sir Owen Dixon, Australian Minister to USA’, 1942, in Owen Dixon, Files at Australian Archives. Owen Dixon, Diary, 11-19 May 1942, Owen Dixon, Personal Papers.

10

Frederick G. Shedden to Secretary, Department of Aircraft Production, 1 May and 30 July 1942, in Department of Defence, Papers. Owen Dixon, Diary, 20, 24-26, 28 May 1942 for most of the details here. Owen Dixon, Personal Papers.

Deciphered telegram, W. R. Hodgson to H. V. Evatt, 29 May

1942, in file of

‘Overseas Trips’, 1942, Evatt Papers.

Owen Dixon, Diary, 26-31 May 1942, the 27th two days because of the dateline. Owen Dixon, Personal Papers.

8

MINISTER

TO THE UNITED 1942-1944

STATES:

Alan Watt, Australian Diplomat: Memoirs of Sir Alan Watt, p. 52.

See Watt, Australian Diplomat, pp. 51-2.

For Dixon’s regular reports on meetings of the Council see Department ternal Affairs, Papers associated with Australian Legation, Washington, 44, in Owen Dixon, Files at Australian Archives. Owen Dixon, Diary, 3 June 1942, Owen Dixon, Personal Papers. Dean Acheson, Fragments of My Fleece, p. 220.

of Ex1942-

Wilmarth Sheldon Lewis to Dixon, 3 January 1956, in Correspondence 19551956, Owen Dixon, Personal Papers. Lewis worked in the State Department

NOTES

(PAGES

142

To

148)

335

during the war and was one of Yale University’s finest scholars, witness his 48volume Yale edition of the Horace Walpole correspondence. Watt, Australian Diplomat, p. 53. Keith Aickin to James Merralls, 1 March 1977, possession of James Merralls. See Owen

Dixon, Diary, 3-6 June 1942, on his first meetings with these men.

The entry of 5 June gives a good insight into Evatt’s pique at only recently having learnt of the ‘beat Hitler first’ policy: to Secretary of War Stimson, ‘E spoke of fact that he did not know of agt. making European war Ist. & rather embarrassed S’. However, the policy was already softening after Midway, as Field Marshal Sir John Dill (on the Combined Chiefs of Staff Committee) told Evatt

and Dixon on 9 June, three days after the battle had been won: ‘We talked round the question, Dill saying Midway led US Staff to think differently about Pacific offensive’. Owen Dixon, Diary, 9 June 1942, Owen Dixon, Personal Papers.

Watt, Australian Diplomat, p. 53. Richard G. Casey, Personal Experience 1939-1946, p. 96. Secret cable, Evatt to Curtin, 10 June 1942, copy in file of ‘Overseas Trips’, 1942, Evatt Papers. Dixon,

address

on Roosevelt,

to the Australian-American

Association,

Mel-

bourne, 4 July 1949, in Drafts of Addresses. Some of this address was substantially incorporated into ‘Roosevelt and Hopkins’, Arthur E. Mills Memorial Oration to the Royal Australasian College of Physicians, Hobart, 20 March “4

1s 16

1953 (not the 19th as stated in Jesting Pilate).

In his secret cable of 10 June to Curtin Evatt reported that ‘Sir Owen Dixon has now been here for a week and is settling down to his new post . . . He has now been brought into personal contact with the persons directly concerned with the problems of the Southwest Pacific Theatre and its supply needs . . . his post . . . I regard as practically equivalent to that of War Minister in the United States’. Copy of cable in file of ‘Overseas Trips’, 1942, Evatt Papers. Owen Dixon, Diary, 10 and 11 June 1942, Owen Dixon, Personal Papers.

For Dixon’s reports of these meetings see Department of External Affairs, Papers associated with Australian Legation, Washington,

18 9

Correspondence

20 a 2

23 uM

1942-44,

in Owen

Dixon,

Files at Australian Archives. Owen Dixon, Diary, 12 June 1942, Owen Dixon, Personal Papers. Owen Dixon, Diary, 16 June 1942, Owen Dixon, Personal Papers. He pursued the matter with Acheson again on 22 June but nothing came of it. Dixon to Sir Frederic Eggleston, 13 July 1942, Department of Foreign Affairs, Files

Chungking, 1942-1943.

1941-1948,

Sir

Frederic

Eggleston

Correspondence,

Owen Dixon, Diary, 19 June 1942, Owen Dixon, Personal Papers. Owen Dixon, Diary, 2 July 1942, Owen Dixon, Personal Papers.

Dixon to Eggleston, 13 July 1942, Department of Foreign Affairs, Correspondence Files 1941-1948, Sir Frederic Eggleston Correspondence, Chungking, 1942-1943. Emphasis in original. Owen Dixon, Diary, 3 July 1942, Owen Dixon, Personal Papers. Watt, Australian Diplomat, p. 52.

336 28

7 28

NOTES

(PAGES

149

To

152)

Alan Watt to J. D. Hood, 7 December 1942, in Sir Alan Watt, Papers. Acheson to Franks, 28 December 1953, in Dean Acheson, Among Friends: Personal Letters of Dean Acheson, ed. David S. McLellan and David C. Acheson, p. 90. See also Acheson, Present at the Creation: My Years in the State

Department, pp. 77 and 272. The Elizabethan diplomat Sir Henry Wotton as reported in Caspar Schoppe’s Ecclesiasticus (London, 1611). Adm. Sir Percy Noble, head of the British Admiralty delegation to Washington, previously Commander-in-Chief of the Western Approaches and Director of Anti-submarine

Warfare,

quoted

to Dixon

Halifax’s

observation

about

the

Americans: ‘Incredible people. So shallow I won’t say they are crooked’. Owen » 30 YT 32

Dixon, Diary, 30 December 1942, Owen Dixon, Personal Papers. Casey, Personal Experience 1939-1946, p. 64.

Watt, Australian Diplomat, p. 53. Owen Dixon, Diary, 10 July 1942, Owen Dixon, Personal Papers. Dixon, Address at the Opening of the Australian Exhibition, Los County Museum of History and Art, 11 July 1942, in Owen

3 M 35 36 a7

38

39 40

Dixon,

Papers. Owen Dixon, Diary, 11 July 1942, Owen Dixon, Personal Papers. See, for example, Owen

Dixon, Diary, 31 December

1942, Owen

Angeles Personal

Dixon, Per-

sonal Papers. On Lend-Lease and Australian reciprocal aid during this period see S. J. Butlin and C. B. Schedvin, War Economy 1942-1945, pp. 121-39. Owen Dixon, Diary, 17-20 July 1942, Owen Dixon, Personal Papers. Alice Dixon to Mr and Mrs Severin Woinarski, 1 July 1942, in Corespondence from Lady Dixon to Dr and Mrs S. H. Z. Woinarski, 1942-1944, Owen Dixon,

Personal Papers. Alice Dixon to Mr and Mrs Severin Woinarski, 30 August 1942, in Correspondence from Lady Dixon to Dr and Mrs S. H. Z. Woinarski, 1942-1944, Owen

Dixon, Personal Papers. Owen Dixon, Diary, 21 July 1942, Owen Dixon, Personal Papers. Owen Dixon, Diary, 7 August 1942, Owen Dixon, Personal Papers. Even by late March 1943, according to Lieutenant-General George C. Kenney, Commander, Allied Air Forces, South-West Pacific Area, as reported by Air Marshal

Williams, ‘33 sq. all the RAAF a

23 March 1943.

could supply personnel for’. Dixon,

Cablegram, Dixon to Curtin, 30 July 1942, copy in Advisory War Council Minutes Files, ‘Pacific War Council, Washington’, 1942, in Owen

a2

Diary,

at Australian Archives.

Dixon, Files

Cablegram from Advisory War Council to Dixon, approved by Minister for External Affairs, 5 August 1942, copy in Advisory War Council Minutes Files, ‘Pacific War Council, Washington’,

Archives.

1942, in Owen

Dixon, Files at Australian

NOTES 43 44 45

46 47 48

49 50

(PAGES

152

TO

156)

337

Owen Dixon, Diary, 7, 15 August 1942, Owen Dixon, Personal Papers. See also

Dixon’s discussion with Marshall on this subject on 31 August.

Owen Dixon, Diary, 31 August 1942, Owen Dixon, Personal Papers. The meet-

ing is mentioned in Dixon, ‘Roosevelt and Hopkins’, pp. 143-4. Owen

Dixon, Diary, 12 September

1942, Owen

Dixon, Personal Papers. The

entry is stylistically compressed and some interpretation is necessary in places. Direct speech of Roosevelt is as given in Dixon, ‘Roosevelt and Hopkins’, p. 144. Owen Dixon, Diary, 26 November 1942, Owen Dixon, Personal Papers.

Owen Dixon, Diary, 31 July, 1 and 6 August 1942, Owen Dixon, Personal Papers. Watt, Australian Diplomat, pp. 51-2. Watt writes that ‘Marshall subsequently conveyed this information direct to a distinguished Australian, who repeated it to me’—this was almost certainly Dixon, given his closeness to both Marshall and Watt. Owen Dixon, Diary, 31 July, 1 August, 14 September 1942, Owen Dixon, Personal Papers. He compared the federal systems of Australia and the United States, and their highest Courts. Australia stood ‘mid-way between the two great common law systems, that of England and that of America. We study them both; we feel that, in some measure, we understand them both, and we seek guidance from them both’. See Dixon, ‘Two Constitutions Compared’. The next year’s address, a broad comparison of Australian and American law, would be delivered on

24 August 1943 in Chicago (not Detroit, as erroneously claimed in Jesting Pilate where it is printed as ‘Sources of Legal Authority’). Manuscripts of both 51 52

addresses are in Owen Dixon, Personal Papers. Owen Dixon, Diary, 27 and 29 September, 1 October 1942, Owen Dixon, Per-

sonal Papers. Owen

Dixon,

Diary, 1 October

1942, Owen

Dixon,

Personal Papers. Dixon

agreed with Dill’s view of the United States, believing that, even at this stage, the United States was not wholeheartedly prosecuting the war—see letter to Latham 53 54 55 56

of 4 September 1942, Latham Papers. Owen Dixon, Diary, 7 October 1942, Owen Dixon, Personal Papers. Owen Dixon, Diary, 8 October 1942, Owen Dixon, Personal Papers. Owen Dixon, Diary, 27 February 1947, Owen Dixon, Personal Papers. Owen Dixon, Diary, 15-20 October 1942, Owen Dixon, Personal Papers. Full details are in Alice Dixon’s letter to Mr and Mrs Severin Woinarski, 28 October

1942, in Correspondence from Lady Dixon to Dr and Mrs S. H. Z. Woinarski,

57 58

59

1942-1944, Owen Dixon, Personal Papers. Owen Dixon, Diary, 22 October 1942, Owen Dixon, Personal Papers.

Owen Dixon, Diary, 22, 24, 25, 26, 27 October and 12 November 1942. See also Dixon’s diary entry for 5 November dealing with ‘reflections in St [State] Dep. Army & OWI on A/ian Govt, labour & troops’. Owen Dixon, Diary, 22-27 October 1942, Owen Dixon, Personal Papers.

338 60

NOTES

(PAGES

156

TO

159)

Alice Dixon to Mr and Mrs Severin Woinarski, 28 October 1942, in Correspon-

dence from Lady Dixon to Dr and Mrs S. H. Z. Woinarski, 1942-1944, Owen 6

62 6h

65 66

68 69 70 72

73

Dixon, Personal Papers. Emphases in original. Alice Dixon to Mr and Mrs Severin Woinarski, 28 October 1942, in Correspondence from Lady Dixon to Dr and Mrs S. H. Z. Woinarski, 1942-1944, Owen Dixon, Personal Papers. Owen Dixon, Diary, 31 October 1942, Owen Dixon, Personal Papers. On the

blame being attached to Crutchley see also the entry for 10 February 1943.

Dixon, ember Owen Owen

broadcast talk over WWDC and Atlantic network, 9.00 p.m., 12 Nov1942, in Owen Dixon, Personal Papers. Dixon, Diary, 19, 21 November 1942, Owen Dixon, Personal Papers. Dixon, Diary, 30 November 1942, Owen Dixon, Personal Papers.

‘The Separation of Powers in the Australian Constitution’, vol. 20 of the Proceedings of the American Foreign Law Association (December, 1942). R v Kirby; ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254. Owen Dixon, Diary, 2-3 December 1942, Owen Dixon, Personal Papers. Paul Hasluck, Diplomatic Witness: Australian Foreign Affairs 1941-1947, p. 73.

Owen Dixon, Diary, 25 and 28 December 1942, Owen Dixon, Personal Papers. Owen Dixon, Diary, 1-4 January 1943, Owen Dixon, Personal Papers.

The typescript address is in Owen Dixon, Personal Papers. Powers proposed to be given over by the States to the Commonwealth in the name of postwar reconstruction included repatriation, employment, organised marketing, trusts, combines and monopolies, family allowances, and Aboriginals. For example Dixon saw Lippmann for one and a half hours on 1 April 1943 ‘on the Pacific war & the development of social reforms in Australia’. Diary, entry for that date, Owen Dixon, Personal Papers.

7s

76

Owen Dixon, Diary, 7 January 1943, Owen Dixon, Personal Papers. Felix Frankfurter, diary entry for 15 January 1943, in Felix Frankfurter, From the Diaries of Felix Frankfurter, ed. Joseph P. Lash, p. 159. Frankfurter’s diaries, in the Library of Congress, are incomplete. He excised sections, others were destroyed or stolen. Lash’s edition publishes all that remains. Owen

Dixon,

Diary,

19, 20, 21, 23 January

1943,

Owen

Dixon,

Personal

Papers. Bowes-Lyon was the Queen consort Elizabeth’s brother. For example he saw Cordell Hull, Secretary of State, on this matter on 25 March 1943, and the following day ‘spoke to H . . . about Hull & colonies’.

7

Owen Dixon, Diary, Owen Dixon, Personal Papers. Dean Acheson, Assistant Secretary of State and already a friend of Dixon’s, knew his views.

Dixon was unimpressed by the smart-alecky style of some of the clever young men, such as Isaiah Berlin, who composed the dispatches, and Aickin thought

this quite significant in the development of Dixon’s changed attitudes towards (and gradual disillusionment with) the ‘mother country’. Aickin, in communication with James Merralls, who relayed it to the author.

NOTES 79 80 81 a2 83 a4 85

(PAGES

160

TO

166)

339

Owen Dixon, Diary, 25 and 26 January 1943, Owen Dixon, Personal Papers.

Dixon typescript address to the Australian Society of New York, 25 January 1943, in Owen Dixon, Personal Papers, along with the other addresses mentioned. Owen Dixon, Diary, 31 January-2 February 1943, Owen Dixon, Personal Papers. The broadcast address, of 1 February, is in Owen Dixon, Personal Papers.

Owen Dixon, Diary, 12 February 1943, Owen Dixon, Personal Papers. Owen Dixon, Personal Papers; and Owen Dixon, Diary, 12-16 February 1943, Owen Dixon, Personal Papers. Dixon, Address to the Executive Club of Memphis, Tennessee, 19 February 1943, in Owen Dixon, Personal Papers. For his address of 18 March to the Law Club, University of Toronto, see ‘Aspects of Australian Federalism’. The interview on WWDC, on 4 March, covered the

war in New Guinea and similarities between Australia and the United States.

The Richmond address, on 10 March, at the War Fund Rally of the local Red Cross chapter, was on the role of the Red Cross in the war. At Toronto he also

86 87

88 89

a” 92

spoke to the Women’s Canadian Club and the Canadian Club on the 18th and 19th. All are in Owen Dixon, Personal Papers. Owen Dixon, Diary, 23 March 1943, Owen Dixon, Personal Papers. Owen Dixon, Diary, 18January, 23 February 1943 (cables to Curtin and Evatt),

Owen Dixon, Personal Papers; and Dixon to Eggleston, 5 March 1943, Department of Foreign Affairs, Correspondence Files 1941-1948, Sir Frederic Eggleston Correspondence, Chungking, 1942-1943. Felix Frankfurter, diary entry for 25 February 1943, in Frankfurter, From the Diaries of Felix Frankfurter, pp. 196-7. Frankfurter, diary entry, 11 March 1943, in Frankfurter, From the Diaries of Felix Frankfurter, p. 208. Owen Dixon, Diary, 29 March 1943, Owen Dixon, Personal Papers.

Owen Dixon, Diary, 31 March 1943, Owen Dixon, Personal Papers. Dixon, ‘Roosevelt and Hopkins’, p. 143. It was a distinct advantage

of the

American system of government, in Dixon’s view, that the President could appoint men of talent like Hopkins from outside the political system or public 93 95

96 97 8

service. See Dixon, Presidential Government.

Owen Dixon, Diary, 7 April 1943, Owen Dixon, Personal Papers.

Owen Dixon, Diary, 8 April 1943, Owen Dixon, Personal Papers. Comment by General George Marshall to David Bowes-Lyon (and reported by Bowes-Lyon to Dixon the same day) at the Lord President’s Garden Party,

Hatfield House, 31 May 1953. Owen Dixon, Diary, 31 May 1953, Owen Dixon, Personal Papers. Information from Betty Danby. Owen Dixon, Diary, 14 April 1943, Owen Dixon, Personal Papers. Owen Dixon, Diary, 16 April 1943, Owen Dixon, Personal Papers. Owen Dixon, Diary, 22 April 1943, Owen Dixon, Personal Papers. See, for example, ‘Sir Owen Dixon Back on Visit’, Argus, 24 April 1943.

340

NOTES Owen

(PAGES

Dixon, Diary, 26 April

1943,

166

TO

Owen

171)

Dixon,

Personal

Papers;

he had

another conference with Chifley on 1 May. See Owen Dixon, Diary, 28 May 1943, where he records making these points to Arthur Moore, in charge of the Division of Import Procurement and Lend-Lease Requisitioning in Australia. Dixon also told him that the work of Edwin McCarthy, Australia’s shipping representative in the United States, required a two-man

team. Owen

Dixon, Personal Papers.

Owen Dixon, Diary, 5 January 1953, reporting Bruce’s conversation with him

at a dinner party in Melbourne that evening. Owen Dixon, Personal Papers.

Hasluck, Diplomatic Witness, p. 44. War Cabinet Minute, 12 May 1943, ‘Discussion with Sir Owen Dixon’, Advisory War Council Minute Files, ‘Visit of Sir Owen Dixon to Australia’, 1943, in Owen Dixon, Files at Australian Archives.

Advisory War Council Minute, 13 May

1943, ‘Discussions with Sir Owen

Dixon, Australian Minister to the United States’, Advisory War Council Minute Files, ‘Visit of Sir Owen Dixon to Australia’, 1943, in Owen Dixon, Files at Aus-

tralian Archives. This meeting lasted three and a half hours, during which John Beasley, Minister for Supply and Shipping, ‘had an altercation with Air M Jones (with high words at tea)’. Owen Dixon, Diary, 13 May 1943, Owen Dixon, Per-

sonal Papers. Dixon, Diary, 21 May 1943. A few days later Sir Harold Clapp told Dixon ‘it was reported McGregor’s [Macgregor’s] show was to be cleaned up on my return’. Dixon, Diary, 27 May 1943; in Owen Dixon, Personal Papers. 10 n 2 B 4 1s

Owen Dixon, Diary, 2 June 1943, Owen Dixon, Personal Papers. John L. Read, communication with the author. Owen Dixon, Diary, 2-6 June 1943, Owen Dixon, Personal Papers.

Quoted in Stuart Sayers, Ned Herring: A Life of Lieutenant-General the Honourable Sir Edmund Herring, p. 253. Owen Dixon, Diary, 7~16 June, Owen Dixon, Personal Papers; and information from Betty Danby. Dixon’s statement is in Owen Dixon, Personal Papers. Owen

Papers.

Dixon, Diary, entries for the indicated dates, Owen

Dixon,

Personal

Watt to Hood, 5 and 27 July 1943, Alan Watt, Papers. Owen Dixon, Diary, 4 September 1943, Owen Dixon, Personal Papers.

Owen Dixon, Diary, 16-21 September 1943, Owen Dixon, Personal Papers. Dixon, Address to the English Speaking Union and the ANZAC Division of the British War Relief Society, Boston, 4 October 1943, in Owen Dixon, Personal Papers. There is a good overview of the New Guinea fighting through to midOctober

1943 in his (undelivered) address of 20 October

to the Newcomen

Society in Washington; see too his address over WWDC recorded 23 July (broadcast 5 August) 1943, and his speech at the Convocation of the American Univer20

sity, Washington, 30 July 1943. All these are in the same file. Owen Dixon, Diary, 1 November 1943, Owen Dixon, Personal Papers.

NOTES 2

22 23

(PAGES

172

TO

175)

341

The speech to the Council of UNRRA, these broadcasts, others over the BBC on 16 November and in New York on the 21st, and a broadcast interview on the same topic on the 26th, are in Owen Dixon, Personal Papers. Owen Dixon, Diary, 26 November, Papers.

1 December

1943, Owen Dixon, Personal

Dixon, Address to the Nobel Anniversary Dinner, New York, 10 December 1943; and Address to the Rotary Club of New Orleans, 9 February 1944, on

‘The War as Seen from Australia’. In New Orleans he also addressed the Round

Table at Tulane University (10 February), on ‘Australian Matters of American 24 25 6 oy 28

Interest’. In Owen Dixon, Personal Papers. Owen Dixon, Diary, 26 February, 2, 9, 10 March 1944, Owen Dixon, Personal Papers. Owen Dixon, Diary, 10 April 1944, Owen Dixon, Personal Papers. Owen Dixon, Diary, entries for the dates specified, Owen Dixon, Personal Papers.

Owen Dixon, Diary, 1 June 1944, Owen Dixon, Personal Papers.

See, for example, Owen Dixon, Diary, 2 March and 10 May 1944, for instances

where Macgregor and his organisation were acting quite independently of any consultation with Dixon (contrary to Curtin’s assurances of the previous year),

no doubt with the support of the Department of External Affairs and its Min29 30 31

32 33 34

ister, Evatt. Owen Dixon, Personal Papers.

Dixon in conversation with James Merralls, as reported to the author by Merralls. Owen Dixon, Diary, 5 June 1944, Owen Dixon, Personal Papers. Owen Dixon, Diary entries for the relevant dates, Owen Dixon,

Personal

Papers. Since his addresses in New Orleans in February 1944 he had given few talks on the war apart from a radio interview over WSB in Atlanta on 6 March, talking about Americans in Australia, and a paper delivered on 15 March at Brown University in Providence, Rhode Island, on ‘Australia and the Conflict with Japan’, both in Owen Dixon, Personal Papers. Owen Dixon, Diary, 7 September 1944, Owen Dixon, Personal Papers.

Watt, Australian Diplomat, p. 54. Possibly Dixon forgot to note this dinner, which would be unusual, or Watt was thinking of an earlier dinner.

Dominion status, a Viceroy for the Crown, a Cabinet 40 per cent Muslim, 40 per cent Hindu, 20 per cent other minorities, representative and responsible government, and a federal legislature elected on a provincial basis. Owen Dixon, Diary, 15 September 1944, Owen Dixon, Personal Papers. This represented a far more

35 36 37

38

generous attitude to the Muslim minority than history would subsequently bear. See Owen Dixon, Diary, 11 January 1947 and 31 May 1953, quoted above, Owen Dixon, Personal Papers.

Owen Dixon, Diary, entries for the relevant dates, Owen Dixon, Personal Papers.

This is not the ‘Eggleston’ Dixon would later describe (14 March 1952) as ‘crude & ideological, and uninformed as well as undisciplined in mind & behaviour (social)’ (the barrister Richard Moulton Eggleston). Owen Dixon, Diary, 25 October 1944, Owen Dixon, Personal Papers.

342

NOTES

9

THE

(PAGES

177

To

180)

POSTWAR LATHAM 1944-1950

COURT:

Owen Dixon, Diary, late October to late November 1944, passim, and 4 January 1945, Owen Dixon, Personal Papers. Murdoch

invited Dixon to address

the Australian-American Society on 6 November, and Dixon spoke to the Royal Empire Society on the 9th and the Australian Institute of International Affairs on the 22nd. On 21 December he addressed the English Speaking Union; see ‘Government Under the American Constitution’. 3

Owen Dixon, Diary, 8, 11 and 18 January 1945, Owen Dixon, Personal Papers.

Paul de Serville, The Australian Club, Melbourne, 1878-1998, p. 149. In February 1947 Casey confided to Dixon ‘that Menzies had come to him in abt 1935 with a request to join in ejecting Lyons from the P.M. ship & forming

a govt under his leadership. He refused & M. then reproached him with want of guts 8c & sd that he knew that a govt cd be given to the country to do something instead of muddling &c. Casey sd that he did not agree that M cd forma

govt wh wd do better wk: though it was true Lyons had not brains. He did how-

ever have the confidence of the country. M. then so behaved to & about Lyons as to contribute to his death. He Casey refused to support him as his successor & sought to get Bruce. Having failed in that he served Menzies uneasily until at length he proposed to Menzies that they should part & suggested Washington at wh M. jumped. Since his return M cd have had him in the team: Also Bruce & Copland. It was not his Caseys fault that he had not stood, though he had himself so represented the matter to the public in the interest of unity.’ Owen Dixon, Diary, 17 February 1947, Owen Dixon, Personal Papers. Owen Dixon, Diary, 28 and 30 January, 3 and 6 February 1945, Owen Personal Papers.

6

7

10 '! "2 3

“4

Dixon,

Geoffrey Sawer, Australian Federal Politics and Law 1929-1949, p. 216.

Gratwick v Johnson (1945) 70 CLR 1. Owen Dixon, Diary, 15-16 August 1945, Owen Dixon, Personal Papers. Owen Dixon, Diary, 7 September 1945, Owen Dixon, Personal Papers. Attorney-General (Victoria) v Commonwealth (1945) 71 CLR 237. Owen Dixon, Diary, 16 November 1945, Owen Dixon, Personal Papers. Attorney-General (Victoria) v Commonwealth (1945) 71 CLR 237 at 268-9, 270, 271-2. British Medical Association v Commonwealth (1949) 79 CLR 201, in which

Dixon and McTiernan dissented. Brian Galligan, Politics of the High Court, p. 154. Decided during the darkest

hours of the Pacific war, after Dixon left for Washington, the First Uniform Tax Case—South Australia v Commonwealth (1942) 65 CLR 373—sanctioned the

transfer to the Commonwealth of the constitutionally guaranteed taxing powers of the States, against the will of four of them. For a more extended treatment of

the First Pharmaceutical Benefits Case see pp. 148-55 of Galligan, Politics of the High Court.

Notes

(PAGES

180

To

183)

343

Owen Dixon, Diary, 20 November 1945, Owen Dixon, Personal Papers. Australian National Airways Pty Ltd v Commonwealth (1945) 71 CLR 29. On this case see Galligan, Politics of the High Court, pp. 158-63, especially p. 160 on Dixon's dismissal of a narrow reading of section 51 (i), the power to

legislate in regard to trade and commerce. It was on section 92 that Dixon dismissed the Government’s power to establish a monopoly over airlines, not 51 (i). Owen Dixon, Diary, various dates as indicated, Owen Dixon, Personal Papers. Owen Dixon, Diary, 16 September 1947, Owen Dixon, Personal Papers. Dixon learned through his barrister friend Eugene Gorman, whose networks were powerful, ‘that Evatt had pressed for the apptmt of Webb against opposition in the Cabinet wh voted 11 for & 6 agst (favouringJ V Barry) E’s motives supposed to be that he feared talk on eve of election of packing the bench. He obtained Chifley’s support (for tactical reasons he gave) & complained of

Barry’s supporters havg been canvassed wh led to their recriminating Evatt for

a 2 23 24 28

26 2”

28 29

canvassing for himself 1930-1’. Melbourne barrister John Vincent Barry had stood as a Labor candidate at the 1943 federal elections. Owen Dixon, Diary, 20 May 1946, Owen Dixon, Personal Papers. Owen Dixon, Diary, 25 June 1946, 5 February 1948, 30 July 1949, Owen Dixon, Personal Papers. Owen reply Owen Owen Owen

Dixon, draft letter to Bajpai, 9 June 1947 (date deducible from Bajpai’s of 20 June), in Correspondence 1947-1954, Owen Dixon, Personal Papers. Dixon, Diary, 12 October 1946, Owen Dixon, Personal Papers. Dixon, Diary, 16 December 1946, Owen Dixon, Personal Papers. Dixon, Diary, 3 February 1947, Owen Dixon, Personal Papers. Severin

Woinarski, a barrister friend of Dixon’s, thought Friedmann a ‘Jerry’-—Owen Dixon, Diary, 26 January 1947. Owen Dixon, Diary, 14 January 1947, Owen Dixon, Personal Papers.

Owen Dixon, Diary, 6 February 1947, Owen Dixon, Personal Papers. Some Labor politicians, including Eddie Ward, had criticised the High Court and suggested ‘stacking’ it with Labor men. See for example Sydney Morning Herald, 1 August 1945. Generally Dixon had a poor opinion of J. V. Barry. Owen Dixon, Diary, 24 November 1946, Owen Dixon, Personal Papers.

Owen Dixon, Diary, 7 February 1947, Owen Dixon, Personal Papers. In August he learned from Sir Winston Dugan, Acting Governor-General prior to McKell’s appointment, ‘that HM [His Majesty] had been very displeased at the nomination of McKell & had cabled Sir W [Winston] asking whether he wd act as

G.G. until H M returned from South Africa when he wd decide who wd be GG.

Sir W replied certainly he was at his command but Chifley pressed so hard for an appointment before the Kings departure that the latter gave way. Sir W. took the view that he [McKell] was now the Kings representative & must be so 30 1

treated’. Owen Dixon, Diary, 28 August 1947, Owen Dixon, Personal Papers. Owen Dixon, Diary, 13 February 1947, Owen Dixon, Personal Papers.

Owen

Dixon, Diary, 28 January

Menzies,

however,

told Dixon

1947, Owen

a few days

Dixon, Personal Papers. Mrs

later that her husband

would

be

344

32 3

34

35 36 37 38

NOTES

(PAGES

184

To

189)

unhappy at the bar—he had said before that it seemed very small work’, and ‘She referred to the people who placed their faith in him!!” Owen Dixon, Diary, 8 February 1947. Owen Dixon, draft letter to Bajpai, 9 June 1947, in Correspondence 19471954, Owen Dixon, Personal Papers.

Sir Girja Bajpai to Dixon, 20 June 1947. See also his letter of 2 February 1947 on the potential for sectarian violence in India: ‘there is enough rancour around to make life “nasty, brutish and short” . . . Perhaps you will see me as a refugee in Australia one of these days! The prospect of seeing you both again will temper even that experience’. In Correspondence 1947-1954, Owen Dixon, Personal Papers. Dean Acheson to Dixon, 7 July 1947, in Correspondence

1947-1954,

Owen

Dixon, Personal Papers. James Brigden had been Economic Counsellor under Dixon at the Washington Legation. West v Commissioner of Taxation (New South Wales) (1937) 56 CLR 657 at 682. Essendon Corporation v Criterion Theatres Ltd (1947) 74 CLR 1 at 22.

Owen Dixon, Diary, 16 July 1947, Owen Dixon, Personal Papers. Melbourne Corporation v Commonwealth (1947) 74 CLR 31 at 81-3. See also his statement in Uther v Federal Commissioner of Taxation (1947) 74 CLR 508

39 40

at 529: ‘A federal system is necessarily a dual system. In a dual political system you do not expect to find either government legislating for the other’. Owen Dixon, Diary, 29 July 1947, Owen Dixon, Personal Papers. Victoria v Commonwealth (1957) 99 CLR 575 at 611-12; Commonwealth v

a

Cigamatic Pty Ltd (1962) 108 CLR 372 at 376-9. Bank of New South Wales v Commonwealth (1948) 76 CLR 1. On this case see,

for example, Geoffrey Sawer, ‘Bank of New South Wales and Others v The Commonwealth’;

42 a

$.R.

Davis,

‘The

Australian

Bank

Nationalisation

Case’;

M. G. Myers, ‘The Attempted Nationalisation of Banks in Australia, 1947’; A. L. May, The Battle for the Banks; and more general works such as Leslie Zines’ The High Court and the Constitution. Owen Dixon, Diary, 11-12 December 1947, Owen Dixon, Personal Papers. Owen Dixon, Diary, 29 January 1948, Owen Dixon, Personal Papers. ‘Credat

Judaeus Appella’—the Jew Appella believes it, I don’t (the last two words 44 45 46 ” 48 “0 50 st

understood). Horace, Satires, Liii.

Owen Dixon, Diary, 8 February 1948, Owen Dixon, Personal Papers. Owen Dixon, Diary, 16 February 1948, reporting Williams who was staying at the Windsor. Owen Dixon, Personal Papers. Owen Dixon, Diary, 17 February 1948, Owen Dixon, Personal Papers. Owen Dixon, Diary, 23 February 1948, Owen Dixon, Personal Papers.

Latham was particularly grateful. See Latham to Dixon, 31 March

Correspondence 1947-1954, Owen Dixon, Personal Papers. Owen Dixon, Diary, 13 March 1948, Owen Dixon, Personal Papers.

1948, in

Owen Dixon, Diary, 24 and 31 March 1948, Owen Dixon, Personal Papers. Owen Dixon, Diary, 1 April 1948, Owen Dixon, Personal Papers.

NOTES 2 $3 54

(PAGES

189

TO

191)

345

Owen Dixon, Diary, 1 April 1948, Owen Dixon, Personal Papers. Owen Dixon, Diary, 17 June 1948, Owen Dixon, Personal Papers.

For Dixon’s judgment see Bank of New South Wales v Commonwealth (1948) 76 CLR 1 at 326-91. Dixon’s citations do not include the more general reading he did on relevant aspects of the case. This included Geoffrey Crowther’s An Outline of Money (Nelson, London, 1940), F. A. Mann’s The Legal Aspect of Money (Oxford University Press, London, 1938), the American background to and nineteenth-century constitutional debates on section 75 (iii), William Harrison Moore’s ‘The Federations and Suits berween Governments’, and all relevant

55

56

7

parts of the 1891 constitutional debates. ‘Every case must be judged on its own facts and in its own setting of time and circumstances, and it may be that in regard to some economic activities and at some stage of social development it might be maintained that prohibition with a view to State monopoly was the only practical and reasonable manner of regulation and that inter-State trade commerce and intercourse thus prohibited and thus monopolised remained absolutely free.’ Commonwealth v Bank of New South Wales [1950] AC 235 and in (1949) 79 CLR 497 (quoting 640-1).

There was a significant publication by Dixon this year, ‘The Survival of Causes of Action’. It contains an amusing but devastating attack upon law reform by legislative means. See too Owen Dixon, Personal Papers.

Dixon,

Diary,

13 and

17 July 1940, Owen

See Melbourne Sun and Argus for 23 October 1948, and Owen Dixon, Diary,

same date, Owen Dixon, Personal Papers. The case was H. Jones @ Co. Pty Ltd v Talbot (1948) 180 CLR 63. Richard Newton, who appeared as junior for the

appellant, later told his pupil James Merralls about it. When McTiernan asked a question about the circumstances in which interlocutory injunctions might be granted, Starke interjected, ‘Don’t answer that. This is no place for the citation of trite law’, whereupon McTiernan made a trembling departure saying ‘I have been insulted by Mr Justice Starke for many years and I will put up with it no longer’. Latham beckoned him back, to no avail. The Court was packed the next day but the Justices entered without McTiernan, Latham calling on counsel

$8 9

as though nothing untoward had happened. There is a touch of asperity in Starke’s oral judgment. Information from James Merralls. Owen Dixon, Diary, 27 January 1949, Owen Dixon, Personal Papers. Owen Dixon, Diary, 19 February 1949, Owen Dixon, Personal Papers. ‘Credat

Judaeus Appella’—the Jew Appella believes it, I don’t (the last two words under6 62

63

stood). Horace, Satires, Liii. Owen Dixon, Diary, 24 February 1949, Owen Dixon, Personal Papers.

Owen Dixon, Diary, 17 February 1949, Owen Dixon, Personal Papers. Dixon to Prime Minister Chifley, 21 March 1949, in Documents Concerning Address to English Speaking Union, 14 March 1949, Owen Dixon, Personal Papers. Prime Minister Chifley to Dixon, 22 March

1949, in Documents Concerning

Address to English Speaking Union, 14 March

1949, Owen Dixon, Personal

346

NOTES Papers.

6

(PAGES

For attacks on Dixon

191

TO

see Melbourne

193) Sun,

17 March

1949,

‘Senate

President in Hot Attack on Judge’, and Argus, 16 March 1949, ‘Judge’s Reported Remark Raised in Parliament’. Owen Dixon, Diary, 21 February 1949 reporting Latham ‘in secret’, and 23 April 1949, Owen

Dixon, Personal Papers. Two candidates Caucus

had in

6s

mind were Harry Alderman from South Australia and Mr Justice Barry from the Supreme Court of Victoria. Owen Dixon, Diary, 4 and 20 May, 6 June 1949, Owen Dixon, Personal Papers.

66

The most significant of the cases was R v Foster (1949) 79 CLR 43. Burns v Ransley (1949) 79 CLR 101, and R v Sharkey (1949) 79 CLR

121. In

the latter case Latham was ‘hot for the Crown & reckless’, in Dixon’s view—

67 68

“9 70

Owen Dixon, Diary, 16 August 1949, Owen Dixon, Personal Papers. Owen Dixon, Diary, 10 May 1949, Owen Dixon, Personal Papers. Isaacs v McKinnon (1949) 80 CLR 502, Rich’s judgment at 516, Dixon’s dis-

senting judgment at 518. See Owen Dixon, Diary, 18-19, 23 and 25 November, and 5 December 1949, Owen Dixon, Personal Papers. Dean Acheson to Dixon, 28 March 1949, in Correspondence 1947-1954, Owen

Dixon, Personal Papers. The first, ‘International Relations’, was read by Dixon at the University of Melbourne on 30 June 1949 during International Affairs Week, arranged by the Australian Institute of International Affairs, in which he took a leading part. It was

later published. The second paper was on Roosevelt, delivered 4 July 1949 at an Australian-American Association luncheon. It was substantially repeated in an address at the Chapter House, Sydney, 28 July 1949, and some of it fed into ‘Roosevelt and Hopkins’, delivered at Hobart on 20 March 1953. Drafts of all these are in Owen Dixon, Personal Papers. Owen Dixon, Diary, 9 March 1950, reporting on his discussion with Australian Minister

2

7 4

75

to Tokyo,

Patrick

Shaw, who

thought

Dixon

was

probably

right.

Owen Dixon, Personal Papers. Owen Dixon, Diary, 5 January 1950: ‘Ted & Elizabeth continued steeped in gloom’; 18-19 January 1950: ‘Ted seemed depressed & miserable & Elizabeth was plainly worried’, ‘Ted had been very depressed & morose’; other entries to the same effect. Owen Dixon, Personal Papers. Owen Dixon, Diary, 25 February 1950, Owen Dixon, Personal Papers.

See Yearbook of the United Nations 1950, pp. 308-10. The Security Council debated a draft resolution, including a paragraph on the appointment of a single mediator, at its 467th meeting on 24 February 1950, India objecting to the idea of a single mediator, but parts of this resolution had earlier been discussed at the 463rd meeting on 7 February when the idea of a single mediator was on the

table.

As indicated in Australian Embassy, Washington, Departmental Despatch 28/50, 13 June 1950, Item 113/5 Part 1, in Department of External Affairs, Papers Associated with Kashmir Mediation, 1950, in Owen Dixon, Files at Australian

Archives.

NOTES

*6

78

*9

*°

(PAGES

193

TO

196)

347

Dixon had met Sir Zafrulla Khan, Pakistan’s Minister for External Affairs in 1950, with Bajpai on several occasions in Washington in 1942 (see Owen Dixon, Diary, 22 November and 23 December 1942 for meetings at Bajpai’s residence: Owen Dixon, Personal Papers). I searched United Nations archives for an answer to the question of who first suggested Dixon as mediator, fruitlessly. But it seems likely, purely on the basis of cui bono?, that it was Bajpai who first suggested Dixon, if Bajpai felt India stood to gain anything from his friend’s appointment. Owen Dixon, Diary, 24 March 1950, Owen Dixon, Personal Papers. Owen Dixon, Diary, 26 March 1950, Owen Dixon, Personal Papers. Among

the Australians whose names were suggested were Ben Chifley and Evatt. Owen

Dixon, Diary, 24 March 1950, quotes Shedden as saying Evatt had been suggested but was unacceptable. India’s abstention reflects its reluctance to accept the principle of United Nations mediation. In its view Pakistan was the sole aggressor and should simply be required to withdraw. Official United Nations press release of 12 April 1950, summarising the Security Council Resolution of 14 March 1950 (Doc. S/1469), Papers related to Dixon’s mediation of Kashmir conflict, 1950, United Nations Archives, New York,

Folder S-0006-0001-01: United Nations Representative, I, 1950-1951. ‘| United Nations Personnel Action form No. 30-2443, Papers related to Dixon’s mediation of Kashmir conflict, 1950, United Nations Archives, New York, Folder S-0006-0001-01: United Nations Representative, I, 1950-1951. "McCarter v Brodie (1950) 80 CLR 432, Dixon’s judgment at 463-8, an important restatement of his position on section 92. On this case and section 92 generally see Michael Coper, Freedom of Interstate Trade Under the Australian Constitution. * Roughley v New South Wales (1928) 42 CLR 162; Willard v Rawson (1933) 48 CLR 316; R v Vizzard; ex parte Hill (1933) 50 CLR 30; O. Gilpin Ltd v Com-

missioner for Road Transport and Tramways

*

*S

(New South Wales) (1935) 52

CLR 189; Bessell v Dayman (1935) 52 CLR 215; Duncan and Green Trading Co. Pty Ltd v Vizzard (1935) 53 CLR 493. Owen Dixon, Diary, 7 March 1950, Owen Dixon, Personal Papers.

Star

1950.

been

Owen Dixon, Diary, 10 March 1950, Owen Dixon, Personal Papers. Phillips was so taken aback at the reaction of both Fullagar and Dixon to his ‘argument’ that he wrote attempting to exculpate himself—Owen Dixon, Diary, 19 March Phillips’

junior,

C.I.

Menhennitt,

told

Mrs

Woinarski

‘he had

ashamed of his leader-—Owen Dixon, Diary, 24 March 1950. Ivor Greenwood was Dixon’s current associate, following Daryl Carty-Salmon and, before him, 86 87 5*

* °°

John Young in the position.

Herald, 2 September 1949.

Owen Dixon, Diary, 4 October 1949, Owen Dixon, Personal Papers. Owen Dixon, Diary, 23 April 1950, Owen Dixon, Personal Papers.

Owen Dixon, Diary, 24 April 1950, Owen Dixon, Personal Papers. Owen Dixon, Diary, 26 April 1950, Owen Dixon, Personal Papers.

348

NOTES

10

(PAGES

197

TO

202)

UNITED NATIONS MEDIATOR, KASHMIR: 1950

Owen Dixon to Sir John Latham, 29 April 1950, Latham Papers, MS Series 1. Owen

Dixon to Lady Dixon, 29 April 1950, in Letters to Lady Dixon

1009, (1950),

Owen Dixon, Personal Papers. Dixon wrote letters to Lady Dixon throughout his mission but only a few were preserved by her. Owen Dixon, Diary, 29 Owen Dixon, Diary, 30 Dixon to R. G. Menzies, 1, Folder 80. Dixon to R. G. Menzies, 1, Folder 80. Dixon to R. G. Menzies, 1, Folder 80.

April 1950, Owen Dixon, Personal Papers. April 1950, Owen Dixon, Personal Papers. 6 May 1950, Robert Menzies, Papers, MS 4936, Series 6 May 1950, Robert Menzies, Papers, MS 4936, Series 6 May 1950, Robert Menzies, Papers MS 4936, Series

Owen Dixon, Diary, 4 May Owen Dixon, Diary, 5 May Alastair Lamb, Kashmir: A the few objective accounts these is Victoria Schofield’s

1950, Owen Dixon, Personal Papers. 1950, Owen Dixon, Personal Papers. Disputed Legacy, 1846-1990, p. 164. This is one of of the history of the Kashmir conflict. Another of Kashmir in the Crossfire. Examples of biased treat-

ments include Mushtaqur Rahman, Divided Kashmir; Sardar M. Ibrahim Khan, The Kashmir Saga; and Verinder Grover, The Story of Kashmir Yesterday and

Today.

Dixon to R. G. Menzies, Series 1, Folder 80.

6 May

1950,

Robert

Menzies,

Papers,

MS

4936,

Correspondence

1950,

Dixon to Latham, 19 May 1950, Latham Papers.

4 1s 16

Dixon to John A. Spicer, 20 May Owen Dixon, Personal Papers.

1950,

in Kashmir

Dixon to T. $. Clyne, 21 May 1950, in Kashmir Correspondence 1950, Owen Dixon, Personal Papers. Owen Dixon, Diary, 24 May 1950, Owen Dixon, Personal Papers. ‘Top secret’ summary of meeting of 27 May with Nehru, p. 2, in Personal Papers Relating to Kashmir, Owen Dixon, Personal Papers. Summaries of these meetings are in Personal Papers Relating to Kashmir, Owen Dixon, Personal Papers. Dixon to Anne Dixon, 31 May 1950, in Letters to Anne [Dixon], Owen Dixon,

Personal Papers. 20 an

Dixon’s summaries of these are in Personal Papers Relating to Kashmir, Owen Dixon, Personal Papers. Dixon to Anne Dixon, 6 August 1950, in Letters to Anne [Dixon], Owen Dixon, Personal Papers. Dixon to Anne Dixon, 5 June 1950, in Letters to Anne [Dixon], Owen Dixon,

Personal Papers.

NOTES

(PAGES

202

To

211)

349

Dixon to John Young, 17 June 1950, in Kashmir Correspondence 1950, Owen 23 24 2s

Dixon, Personal Papers.

See Dixon’s ‘secret’ notes of his discussion with Sheikh Abdullah, 10 June 1950, in Personal Papers Relating to Kashmir, Owen Dixon, Personal Papers.

‘Which places the fabled Hydaspes washes’: Dixon quotes Horace, Odes, 1, xxii. The Hydaspes (mod. Jhelum) is a tributary of the Indus. Dixon to Severin Woinarski, 25 June 1950 (emphasis in original), in Kashmir

28

Correspondence 1950, Owen Dixon, Personal Papers. Dixon to Sir John Latham, 3 July 1950, Latham Papers. Two of these survive in Personal Papers Relating to Kashmir, Owen Dixon, Personal Papers. ‘Top secret? memorandum of meeting between Dixon and Bajpai, 12 July 1950,

29

in Personal Papers Relating to Kashmir, Owen Dixon, Personal Papers. Dixon, letter of 26 July 1950, in Letters to Anne [Dixon], Owen Dixon, Per-

26 »

30 1

32

33 4 35 36 37

38 39

sonal Papers. Report $/1791 by Sir Owen Dixon to the United Nations Security Council, p. 6, copy in Personal Papers Relating to Kashmir, Owen Dixon, Personal Papers. Report S/1791 by Sir Owen Dixon to the United Nations Security Council, pp. 8-10, copy in Personal Papers Relating to Kashmir, Owen Dixon, Personal Papers.

For the finer details here see Report $/1791 by Sir Owen Dixon to the United Nations Security Council, pp. 8-12, copy in Personal Papers Relating to Kashmir, Owen Dixon, Personal Papers. Report S/1791 by Sir Owen Dixon to the United Nations Security Council, p. 16, copy in Personal Papers Relating to Kashmir, Owen Dixon, Personal Papers. Dixon to Anne Dixon, 24 July 1950, in Letters to Anne [Dixon], Owen Dixon,

Personal Papers. Report $/1791 by Sir Owen Dixon to the United Nations Security Council, p. 17, copy in Personal Papers Relating to Kashmir, Owen Dixon, Personal Papers.

Dixon’s ‘top secret’ notes of his discussion with Nehru

1950,

Dixon’s ‘top secret’ notes of discussion with Mr Ayyangar, Mr Vishnu Sahay and Sir Girja Bajpai, Saturday, 29 July 1950, p. 1, in Personal Papers Relating to Kashmir, Owen Dixon, Personal Papers.

Dixon’s ‘top secret’ summary of a meeting with Vishnu Sahay, 31 July 1950, in Personal Papers Relating to Kashmir, Owen Dixon, Personal Papers. Dixon to Latham, 28 July 1950, Latham Papers. He wrote similarly to John Young the same day—see

40

on 26 July

pp. 2-3, in Personal Papers Relating to Kashmir, Owen Dixon, Personal Papers.

Kashmir Correspondence

1950, Owen

Dixon, Per-

sonal Papers. Dixon to Anne Dixon, 16 August Dixon, Personal Papers.

1950,

in Letters to Anne

[Dixon],

Owen

a

Dixon to Lady Dixon, 19 August 1950, in letters to Lady Dixon (1950), Owen

a

Dixon, Personal Papers. Dixon to Latham, 19 August 1950, Latham Papers.

350 43

45

46

” 48 9

NOTES

(PAGES

Dixon to John Young, 19 August Owen Dixon, Personal Papers.

211

TO

217)

1950, in Kashmir Correspondence

Dixon to Alan Watt, 19 August 1950, in Kashmir Correspondence Dixon, Personal Papers.

n

53 54 5s 56 s7 58 59 60 6 62 63

1950, Owen

Report $/1791 by Sir Owen Dixon to the United Nations Security Council, pp. 23-4, copy in Personal Papers Relating to Kashmir, Owen Dixon, Personal Papers.

Report $/1791 by Sir Owen Dixon to the United Nations Security Council, pp. 24-5, copy in Personal Papers Relating to Kashmir, Owen Dixon, Personal Papers.

Dixon’s ‘top secret’ notes of meeting with Nehru, 20 August 1950, in Personal Papers Relating to Kashmir, Owen Dixon, Personal Papers. Dixon to Lady Dixon, 20 August 1950, in Letters to Lady Dixon (1950), Owen Dixon, Personal Papers.

Richard G. Casey, Australian Foreign Minister: The Diaries of R. G. Casey 1951-60, p. 49 (entry for 29 October 1951). For other positive views within the subcontinent on Dixon’s mission and report, including those of Bajpai and Sheikh Abdullah, see the letter to Dixon from W. R. Crocker, Australian High Commissioner to India, 29 June 1952, in Correspondence

so.

1950,

1947-1954,

Owen

Dixon, Personal Papers. Dixon Dixon Dixon, Dixon

to Lady Dixon, 22 August 1950, in Letters to Lady Dixon (1950); and to Alan Watt, 19 August 1950, in Kashmir Correspondence 1950, Owen Personal Papers. to Anne Dixon, 21 August 1950, in Letters to Anne [Dixon], Owen

Dixon, Personal Papers. Owen Dixon, Diary, 30 August 1950, Owen Dixon, Personal Papers. Owen Dixon, Diary, 31 August 1950, Owen Dixon, Personal Papers. Owen Dixon, Diary, 2 September 1950, Owen Dixon, Personal Papers. Dixon to Anne Dixon, 1 September 1950, in Letters to Anne [Dixon], Owen

Dixon, Personal Papers. Owen Dixon, Diary, 11 September 1950, Owen Dixon, Personal Papers. Dixon to Latham, 15 September 1950, Latham Papers. Alastair Lamb, Kashmir: A Disputed Legacy, 1846-1990, pp. 171, 174.

Felix Frankfurter to Dixon, 19 September 1950, in Correspondence 1947-1954,

Owen Dixon, Personal Papers.

Dixon to Anne Dixon, 17 September 1950, in Letters to Anne [Dixon], Owen Dixon, Personal Papers.

Owen Dixon, Diary, 17 September 1950, Owen Dixon, Personal Papers.

Owen Dixon, Diary, 19 September 1950, Owen Dixon, Personal Papers. Dean Acheson to Sir Patrick Devlin, 18 March 1959, quoted in Douglas Brinkley, Dean Acheson: The Cold War Years, 1953-71, p. 387, n. 9. Dixon's attitude to Nehru (and the Indian subcontinent generally) comes out sharply in his

letter of 5 October 1950 to Sylvain Lourié, a photocopy of which was given by

NOTES Lourié at UNESCO

4

68 66

(PAGES

to Gough

author by Sir Daryl Dawson).

217

Whitlam

TO

222)

in 1988

or

351 1989

(copy sent to the

Casey, Australian Foreign Minister, p. 62 (entry for 27 November

1951). For

some insight into Nehru’s recalcitrance see S. Wolpert, Nehru: A Tryst with Destiny, especially p. 449. Owen Dixon, Diary, 21 September 1950, Owen Dixon, Personal Papers.

Arthur Campbell to James Merralls, 7 February 1980, when Campbell was Canadian Ambassador to Norway; possession of James Merralls.

11

CHIEF

JUSTICE-IN-WAITING: 1950-1952

Australian Communist Party v Commonwealth (1951) 83 CLR 1. Dixon to Lord Simonds, 24 March 1951, in Correspondence 1947-1954, Owen

Dixon, Personal Papers. Owen Dixon, Diary, 29 October 1950 (emphasis in original), Owen Dixon, Personal Papers. Arthur Fadden was Menzies’ Treasurer and Leader of the Country

Party. would Court Owen

On 7 December McTiernan, having learned he was to be appointed KBE, tell Williams, who would tell Dixon, that he thought it lowered the because it was not a KCMG, previously standard for High Court judges. Dixon, Diary, 7 December 1950.

Owen Dixon, Diary entries for the relevant dates, Owen Dixon, Personal Papers; and Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 48-74. Owen Dixon, Diary entries for the relevant dates, Owen Dixon, Personal Papers;

and Fullagar’s judgment, Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 262-3. The doctrine derives principally from Marbury v Madison (1803) 5 US (1 Cranch) 137.

‘I made a feeble attempt during the morning to direct Barwicks thoughts on the lines of (1) power consisting of implication of legislative authority to repress sedition &c annexed (without destruction) to 51 (vi) as (2) basis of an Act hanging on s 4 & s 5 (1) & 5 (9) (not 5 (2) 8& 9 (2)). (3) with recitals as decision

of a question arising from conflict & emergency. He made no fist of it.” Owen Dixon, Diary, 14 December 1950, Owen Dixon, Personal Papers. ‘5 (9)’ appears to be a mistake for ‘9 (1)’. Owen Dixon, Diary, 15 December 1950, Owen Dixon, Personal Papers.

Dixon urged him to do so, as he points out in his letter to Lord Simonds,

24 March 1951, in Correspondence 1947-1954, Owen Dixon, Personal Papers. See, for instance, Owen Dixon, Diary, 15 December: ‘Fullagar & Kitto came to

dinner with me at 52 & we had a good talk about the case, on the lines I sug10

gested, but inconclusive’. Owen Dixon, Personal Papers.

See also his letter to Lord Simonds of 24 March 1951 in which he details his difficulties in this case, to which he says he devoted more time than he had to

352

" 2 1B 4

NOTES

(PAGES

222

TO

224)

any other, part of it reading ‘solid or sensible’ works on Soviet Communism: in Correspondence 1947-1954, Owen Dixon, Personal Papers. Owen Dixon, Diary entries for the indicated dates, Owen Dixon, Personal Papers.

Owen Dixon, Diary, 12, 13, 20 February 1950, Owen Dixon, Personal Papers. Australian Communist Party v Commonwealth (1951) 83 CLR

1 at 187.

In a letter to Lord Pearce of 28 February 1960, resisting the suggestion that

Fullagar sit on the Privy Council (he would first have to be appointed), Dixon

would provide an insight into Fullagar’s way of working: ‘He does not enter into a case dialectically. It may be due to an inferior standard of argument in Australia, but his habit is to let it pass and then get heavily into the case at some later time in his own Chambers. The quality of the judgment he produces is in my opinion very high; but he produces it in his own good time ... I doubt whether that would fit the custom of the Judicial Committee.’ In Correspon1s 16

dence 1960-1973, Owen Dixon, Personal Papers.

Thus Dixon ‘shaded his propositions to protect himself from errors of dogmatic utterance’: Sir Zelman Cowen to the author, reporting P. D. Phillips. Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 186. For an analysis of this doctrine see Leslie Zines, ‘“The Stream Cannot Rise Above its

Source”—The Doctrine in the Communist Party Case’. ‘As appears from Burns v Ransley and R. v Sharkey, 1 take the view that the power to legislate against subversive conduct has a source in principle that is deeper or wider than a series of combinations of the words of s. 51 (xxxix.) with

those of other constitutional powers. I prefer the view adopted in the United States, which is stated in Black’s American Constitutional Law [that] “. . . it is within the necessary power of the federal government to protect its own existence and the unhindered play of its legitimate activities. And to this end, it may provide for the punishment of treason the suppression of insurrection or rebellion and for the putting down of all individual or concerted attempts to obstruct or interfere with the discharge of the proper business of government

18

...”? Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 188. Dixon cites his views as set forth in Burns v Ransley (1949) 79 CLR 101 at 116, and R v Sharkey (1949) 79 CLR 121 at 148-9.

Unlike the Communist Party Case, Dixon pointed out, ‘this case does afford objective tests by which its connection, or want of connection, with the defence power may be seen or ascertained’. The international climate had worsened too.

19 20 u 22 23

Marcus Clark & Co. Ltd v Commonwealth (1952) 87 CLR 177 at 215-16.

Owen Dixon, Diary, 2 March 1951, Owen Dixon, Personal Papers. Dixon to Lord Simonds, 24 March 1951, in Correspondence 1947-1954, Owen

Dixon, Owen Owen Kitto’s

Personal Papers. Dixon, Diary, 20 December 1951, Owen Dixon, Personal Papers. Dixon, Diary, 15-16 March 1951, Owen Dixon, Personal Papers. theory, as Dixon summarised it, ‘was that Menzies wished to become C.J.

at the end of a period & had extended McKells term with a view to appointing

Latham & so causing the necessary vacancy & that Latham had foreseen that

NOTES

(PAGES

224

TO 229)

353

an obvious exchange wd look bad & had therefore prepared the way by taking

leave & announcing his resignation in advance’. Owen Dixon, Diary, 22 May 1951, Owen Dixon, Personal Papers. But this was untrue. E. H. Cox of the Herald was saying something similar, and Menzies made fun of it to Dixon, saying he had to keep clear of Latham or people would believe it. Owen Dixon, 24 2s 26 vv

Diary, 31 May 1951.

Owen Dixon, Diary, 20 December 1951, Owen Dixon, Personal Papers.

Owen Dixon, Diary, 10 January and 19 February 1951, Owen Dixon, Personal Papers. Zelman Cowen gave Dixon the same advice. Ian Spry, conversation with the author.

For instance Alan Harbury Mann of the Victorian Bar Council told Dixon ‘he had a letter from Franklin on his brothers death—mature & evidencing religious feelings. Questioned me about him. Spoke of need to rid Christian faith of Eastern & Hebraic miraculous & make it a moral & monotheistic philos-

ophy’ (also Dixon’s view). Owen Dixon, Diary, 14 January 1952, Owen Dixon, Personal Papers.

28 29 30

Owen Dixon, Diary, 20 January 1950, Owen Dixon, Personal Papers. Owen Dixon, Diary, 20, 21, 25, 28, 30 January 1951, Owen Dixon, Personal

31

Papers. Owen Dixon, Diary, 12 March and 11 February 1935, Owen Dixon, Personal

32 33 34 35

Owen Dixon, Diary, 13 March

1951, Owen Dixon, Personal Papers.

Papers.

Dixon to Anne Dixon, 15 April 1951, in Letters to Anne [Dixon], Owen Dixon,

Personal Papers. Owen Dixon, Diary, 10 April 1951, Owen Dixon, Personal Papers. Owen Dixon, Diary, 30 September 1950. One notes in Dixon’s diaries his adop-

tion of certain American forms, including ‘sidewalk’ and ‘airplane’. Owen Dixon, Diary, 11 June

1950, Owen

Dixon, Personal Papers. The four

Congressmen were Daniel Flood of Pennsylvania, Karl Miles LeCompte of lowa, 36 37 38

A. S. J. Carnahan of Missouri and Chester Earl Morrow of New Hampshire.

See Owen Dixon, Diary, 21 February 1955, Owen Dixon, Personal Papers. Owen Dixon, Diary entries for the relevant dates, Owen Dixon, Personal Papers. Ex parte Nelson (No. 2) (1929) 42 CLR 258 at 270-72; and Nelungaloo Pty

Ltd v Commonwealth (1952) 85 CLR 545. See Dixon’s judgment in the latter case, particularly at 562-5 and 570.

39 40 a

Owen Dixon, Diary, 30-31 August, 1 September 1951, Owen Dixon, Personal

4a 43

Owen Dixon, Diary, 28 October 1951, Owen Dixon, Personal Papers. Owen Dixon, Diary, 2 November 1951 and 31 January 1952, Owen Dixon,

“

Nelungaloo Pty Ltd vy Commonwealth (1952) 85 CLR 545 at $70.

Owen Dixon, Diary, 30 August 1951, Owen Dixon, Personal Papers.

Papers.

Personal Papers.

Owen Dixon, Diary, 14 and 15 January 1952, Owen Dixon, Personal Papers. On 26 January Casey telephoned to discuss a cable suggesting Dixon’s plan be

354

4s 46 7

NOTES

(PAGES

229

TO

233)

revived. ‘I sd it was Nehru prepared to risk a thing he cd accept, if Paks came to it, but believing Paks wd not & so desiring to put them a bit wrong. I sd in answer to his question, that I did not want to go again [because] I had been too much away: it had done me no good. I had had UNO & Security Council & wd only go for both parties at their invitation. Aust shd keep out’—it was a matter for the Office of Commonwealth Relations. See Diary entry for that date. Owen Dixon, Diary, 22-23 March 1952, Owen Dixon, Personal Papers.

Owen Dixon, Diary, 2 April 1952, Owen Dixon, Personal Papers. Wilfred Fullagar to Dixon, 3 April 1952, referring to a (lost) note from Woinarski quoting Odes, III, iv, 65-7, in Correspondence

1947-1954, Owen

Dixon,

Personal Papers. Most of the congratulatory letters are in a separate file of their own: Letters of Congratulation on Appointment as Chief Justice, Owen Dixon, Personal Papers.

12 Lord

Denning,

CHIEF

JUSTICE:

‘Fifth Wilfred

Fullagar

1952-1964

Memorial

Lecture:

“Let

Justice

Be

Done”’, p. 3. Douglas I. Menzies, ‘The Right Honourable Sir Owen Dixon, O.M., G.C.M.G.’,

p. 3. The ‘two other judges’ were of course Fullagar and Kitto. Lord Normand

to Dixon,

20 January

1958, in Correspondence

1957-1959,

Owen Dixon, Personal Papers. One reason, he thought, was the High Court’s Practice of reserving judgments. Extemporary judgments had ‘led to much con-

fusion in the law of England’.

James Merralls, ‘The Rt. Hon. Sir Owen Dixon, O.M., G.C.M.G., 1886-1972’, pp. 433-4.

Robert G. Menzies, in his speech on Dixon’s retirement, said he had heard Dixon described as the greatest judicial lawyer in the English-speaking world by two Lord Chancellors and by Frankfurter: Menzies, ‘Retirement of the Chief

Justice’, at vii. The final two phrases are from a letter of Frankfurter’s to Menzies, enclosed with a letter from Menzies to Dixon dated 16 April 1952, in

Correspondence 1947-1954, Owen Dixon, Personal Papers. Frankfurter made

his assessment, as he noted on another occasion, ‘on the basis of my systematic

perusal of the law reports of all the high courts of the English speaking countries and at a time when our three great common law judges, Holmes, Cardozo and Learned Hand, were still alive’. Robert G. Menzies, notes on a speech by

Frankfurter read at ‘Beale’s Dinner’, 1963, Robert Menzies, Papers. Dixon, ‘Upon Taking the Oath of Office as Chief Justice’, p. 247. See his paper ‘The Common Law as an Ultimate Constitutional Foundation’. It

was Sir Isaac Isaacs who is often said to have advocated ‘literalism’—finding the meaning of the Constitution purely in its words—but as argued

in earlier

chapters here, Dixon also read the Constitution in the context of its federalist

implications.

NOTES

(PAGES

233

TO

237)

355

Dixon, undated draft letter to Lord Evershed, c. early May 1952, in Correspondence 1947-1954, Owen Dixon, Personal Papers. He said the same thing to

others.

10

un

He made these points in conversation with his associate James Merralls. Owen Dixon, Diary, 11 May 1952, Owen Dixon, Personal Papers. See too the entries for 14 July 1952 (another discussion with Menzies on the same subject) and 19 August 1952 (‘Owen called to say that he was pleased I had wanted him on the bench & disappointed Taylor had been appointed’). McTiernan and Webb would each subsequently be offered the Dublin embassy by Casey and each would refuse. Owen Dixon, Diary, 8, 17, 18 February 1953.

Owen Dixon, Diary, 14-15 May 1952, Owen Dixon, Personal Papers. In regard to Phillips, Dixon ‘knew of no other man over whom the English language had

such command’—quoted

12 1B

4 1s 16 7 18

in Stephen

Murray-Smith

(ed.), The Dictionary

of

Australian Quotations; the original source, confirmed by James Guest in conversation with the author, was Sir Henry Winneke, who often availed himself of a morning lift into town with Dixon in his Commonwealth car. Owen Dixon, Diary, 8 June and 9 August 1952, Owen Dixon, Personal Papers. Owen Dixon, Diary, 25-26 June and 27 August 1952, Owen Dixon, Personal

Papers. The eminent physician Clive Fitts (like Dixon a Trustee of the Felton Bequest) would later report confidentially that Williams had an enlarged heart, was neurasthenic, suffered from tachycardia, was unfit to travel with the Court and had a poor life expectancy. He should resign, but with so few other interests resignation might be bad for him. Owen Dixon, Diary, 4 March 1954. Owen Dixon, Diary, 19-20 September 1952, Owen Dixon, Personal Papers. Stapleton v The Queen (1952) 86 CLR 358.

Director of Public Prosecutions v Smith [1961] AC 290. This case, along with Dixon’s response to it, is considered below.

Stapleton v The Queen (1952) 86 CLR 358 at 365. In D. A. Low (ed.), Constitutional Heads and Political Crises: Commonwealth Episodes, 1945-85, the Victorian crisis of 1952 is discussed and it is pointed out that Dixon was consulted, though his role is not described. See J. B. Paul’s

19 20

chapter, ‘Governors and Politicians: The Australian States Principally in the 1940s and 1950s’, pp. 37-56. Owen Dixon, Diary, 8 November 1952, Owen Dixon, Personal Papers. The quoted words were relayed to Dixon by Brooks’ Private Secretary. Owen Dixon, Diary, 8 November 1952, Owen

Dixon, Personal Papers. Dixon

does not question whether the idea was in fact Spraggett’s, though the claim 4

seems surprising. There are, of course, plenty of precedents

for a Chief Justice advising the

Governor-General, most of them in the earlier twentieth century. For examples see Don Markwell’s informative paper, Griffith, Barton, and the early Governor2

Generals: Aspects of Australia’s Constitutional Development. Owen Dixon, Diary, 30 October 1952, Owen Dixon, Personal Papers. All infor-

mation in this and the following paragraph is from this entry.

356 23 24 25 26

yn Bry

NOTES Owen

(PAGES

Dixon, Diary, 31 October

237

TO

1952, Owen

239) Dixon, Personal Papers.

Owen Dixon, Diary, 1 November 1952, Owen Dixon, Personal Papers. Draft letter, Owen Dixon to Lord Simonds, 17 November 1952, in Correspondence 1947-1954, Owen Dixon, Personal Papers.

James Merralls, Dixon’s associate at the time, recalls his saying this in 1960. For an expanded version of this section see Philip Ayres, ‘Crisis Breaker: Owen Dixon and the Victorian Constitutional Crises of 1952 and 1955’. George Winterton, ‘Injudicious Advice’. Owen Dixon to Felix Frankfurter, 30 October 1952: fewer seriatim judgments were being delivered ‘because we are now so overburdened with work ... the variety of law we are called upon to explain, and as a preliminary to learn, means that we cannot work with great speed’. In Correspondence 1947-1954, Owen Dixon, Personal Papers. Dixon’s administration of the Court was facilitated by his good relations with the Prime Minister and by Menzies’s genuine interest. If the Solicitor-General proved slow in instituting reforms desired by Dixon they could be thrashed out directly with Menzies, along with any issues to do with salaries and pensions, but even so reform came slowly. See Owen Dixon, Diary,

13 and 23 January, 25 July and 11 September 1954, Owen Dixon, Personal Papers. Dixon wished to reduce the load by restricting appeals as of right to judgments of the Full Court of a Supreme Court, requiring leave to appeal for divorce cases, and trebling the minimum appealable amount. Menzies backed most of this, and his Cabinet authorised big salary increases in early 1955: £6000 for

puisnes, £8000 for the Chief Justice. Pensions were substantially increased less than three years later, again as a result of direct discussions between Dixon and Menzies—Owen Dixon, Diary, 22 September and 20 November 1957. But Dixon’s interest in reforming the Court’s administration seems to have waned,

29

and James Merralls recalls it being ‘ramshackle’ in the early 1960s.

Owen Dixon, Diary, 10 November 1952, Owen Dixon, Personal Papers; Dixon

to Lord Simonds, undated typescript draft, first half of 1953; and Dixon’s

account in his letter to Frankfurter of 30 October 1952 of his disaffection with

the Privy Council. The latter two items are in Correspondence 30 31 32

Owen Dixon, Personal Papers.

Owen

Dixon, Diary, 25-27 December

1952; Hughes &

1947-1954,

Vale v New

South

Wales (1953) 87 CLR 49. McCarter v Brodie (1950) 80 CLR 432. Hughes & Vale v New South Wales (No. 1) [1955] AC 241; (1954) 93 CLR 1; and Hughes & Vale v New South Wales (No. 2) (1955) 93 CLR 127. On these

and section 92 generally see Michael Coper, Freedom of Interstate Trade Under the Australian Constitution. On Dixon’s attitude to the doctrine of stare decisis, see Daryl Dawson and Mark Nicholls, ‘Sir Owen Dixon and Judicial Method’,

33

and analysis of Dixon’s Yale paper, ‘Concerning Judicial Method’, in this chapter. Armstrong v Victoria (No. 2) (1957) 99 CLR 28. Among the transitional ‘test’ cases were Hughes & Vale v New South Wales (No. 2) (1955) 93 CLR 127 and Armstrong v Victoria (1955) 93 CLR 264.

NOTES 34

240

TO

243)

357

Alice Dixon, Travel Journal, 3 May 1953, and Dixon to Anne Dixon, 4 May 1953, in Letters to Anne

as 36 v

(PAGES

[Dixon], Owen

Dixon, Personal Papers. In Sydney

Dixon had a two-hour briefing from Alan Watt on world affairs, anticipating talks with political friends. Owen Dixon, Diary, 5 May 1953, Owen Dixon, Personal Papers. Alice Dixon, Travel Journal, 9 May 1953, Owen Dixon, Personal Papers. Owen Dixon, Diary, 13, 15, 20 May 1953, Owen Dixon, Personal Papers. Lord Denning to Dixon, 15 July 1953, in Correspondence 1947-1954, Owen

Dixon, Personal Papers. Dixon’s work

in developing the field of estoppels

includes his judgments in Thomson v Palmer (1933) 49 CLR 507, Newbon v City Mutual Life Assurance Society Ltd (1935) 52 CLR 723, and Grundt v 38

Great Boulder Gold Mines Pty Ltd (1937) 59 CLR 641. Lord Tucker to Dixon, 19 and 26 June 1953, in Correspondence 1947-1954,

Owen Dixon, Personal Papers. Attorneys-General and Ministers of Justice in Australia, New Zealand, Canada and Ceylon had replied to the Committee on this issue. The advantage they cited of a Court of Appeal having power to order a new trial in criminal cases was that justice is better served and respect for the law increased by eliminating the scandal of convicted criminals being released on technicalities or irregularities at the first trial. Before seeing the Committee on 8 July Dixon went to Lincoln’s Inn and researched the history of the power in Australia. His notes were circulated to the Committee. He pointed out that the High Court, though not constituted as a Court of Criminal Appeal, sometimes

39 40 a 42 43 44 4s

granted special leave to appeal from the orders of the States’ Supreme Courts in criminal matters and occasionally used its power to direct a new trial. See Papers Relating to Lord Tucker’s Inquiry into the Desirability of a Power to Grant a New Trial in Criminal Appeals (1953), Owen Dixon, Personal Papers. Dixon to Anne Dixon, 25 May 1953, in Letters to Anne [Dixon], Owen Dixon,

Personal Papers. Owen Dixon, Diary, 22 May 1953, Owen Dixon, Personal Papers.

Owen Dixon, Diary entries for the relevant dates or periods, Owen Personal Papers. Owen Dixon, Diary, 12 June 1953, Owen Dixon, Personal Papers.

Dixon,

Owen Dixon, Diary, 29 June 1953, Owen Dixon, Personal Papers. Owen Dixon, Diary, 21, 24, 25 July, 17 October 1953, Owen Dixon, Personal Papers.

Members of the Fund at that time included Dr Roland Wilson, Dr Ian Clunies Ross and Sir Macfarlane Burnet. They normally met at the CSIRO in

Melbourne.

46 “7 48

Michael Adeane to Dixon, 30 December 1954, quoting Dixon’s letter to him, in

49 50

Correspondence 1947-1954, Owen Dixon, Personal Papers. Owen Dixon, Diary, 28 February 1954, Owen Dixon, Personal Papers. Owen Dixon, Diary, 20 May and 10 June 1954, Owen Dixon, Personal Papers.

Owen Dixon, Diary, 9, 14, 15 October 1953, Owen Dixon, Personal Papers. Dixon, ‘University Education in a Scientific Civilization’, p. 151.

358 1 2

NOTES

(PAGES

244

TO

250)

Information from James Merralls. Owen Dixon, Diary, Papers.

15, 17, 18, 21, 22 April

1954, Owen

Dixon,

83 sa 55 56 7

Owen Dixon, Diary, 21 August 1954, Owen Dixon, Personal Papers. Grannall v Marrickville Margarine Pty Ltd (1955) 93 CLR 55.

5k 59

Owen Dixon, Diary, 4 October 1954, Owen Dixon, Personal Papers. Owen Dixon to Menzies, 10 June 1955, Robert Menzies, Papers, MS

Personal

Owen Dixon, Diary, 10 and 12 July 1954, Owen Dixon, Personal Papers.

Hospital Provident Fund Pty Ltd v Victoria (1953) 87 CLR 1 at 14-15, 18-19. Owen Dixon, Diary, 31 August and 3 September 1954, Owen Dixon, Personal Papers. Dixon thought Evatt’s exclusion unwise: Diary, 7 September 1954. 4936,

Series 1, Folder 80. In mid-August 1955 Dixon would arrange for Menzies to meet the other High Court judges on this matter, Dixon and Menzies wishing to restrict appeals to the Privy Council in all constitutional cases. ‘Wms. suggested that we might want to send a constitutional case to the P.C. to get out of an impasse but I said I wd be against such a course anyhow.’ Owen Dixon, Diary, 6

19 August 1955, Owen Dixon, Personal Papers. O'Sullivan v Noarlunga Meat Ltd (No. 2) (1956) 94 CLR 367 at 375-6.

Felix Frankfurter to Dixon, 12 October 1956, and Dixon to Frankfurter, 19 October 1956, in Correspondence 1955-1956, Owen Dixon, Personal Papers. Frankfurter would quote the passage in his Remarks to the Heads of the British

Commonwealth Universities and their Hosts held in the Courtroom of the

Supreme Court on Saturday, September 62 63 65 67

8

69 70 7 2

16, 1958—copy

in Correspondence

1957-1959, Owen Dixon, Personal Papers. Owen Dixon, Diary, 22 January 1955, 4 January 1960, Owen Dixon, Personal

Papers. The latter portrait cost 300 guineas.

Owen Dixon, Diary, 4-6 February 1955, Owen Dixon, Personal Papers.

Dean Acheson to Dixon, 2 February 1955, Acheson Papers.

Dixon to Dean Acheson, 27 March 1955, Acheson Papers. Dean Acheson to Dixon, draft letter, 22 April (?) 1955, Acheson Papers.

In May 1952 Dixon had pointed out to Melbourne barristers that ‘the Court has shown an ever-growing tendency to decide cases upon the minor premises and not to concern itself with general propositions but to go to the precise facts and circumstances’: ‘Upon First Presiding as Chief Justice at Melbourne’, p. 251. Owen Dixon, Diary, 25 February and 28 April 1955, Owen Dixon, Personal Papers. Dixon uses indirect speech but all the words put into direct speech here

are faithful to the source.

Owen Dixon, Diary, 2 April 1955, Owen Dixon, Personal Papers. Owen Dixon, Diary, 22 October 1955, Owen Dixon, Personal Papers. Owen Dixon, Diary, 20 May 1955, Owen Dixon, Personal Papers. The wedding

was in Canberra on 28 May.

‘I felt at that date very depressed in relation to the war and had not the optimism, which we may now have in retrospect, about its outcome. In those conditions,

NOTES

(PAGES

250

To

253)

359

feeling very restless indeed and finding it difficult to accommodate myself to sitting on the Bench throughout the war, I agreed to do other work. Looking back from this point of view, I am not sure that it was right. I do not wish it to be thought that, looking in retrospect, I altogether approve of what I myself did.’ ‘Remarks at the closing session’, ninth Convention of the Law Council of Australia, 22 July 1955 (untitled), p. 272.

Owen Dixon, Diary, 2, 4, 5 September 1955, and Alice Dixon, Travel Journal, entries for 3 and 4 September, Owen Dixon, Personal Papers. See also Dixon’s

letters to Anne Dixon of 4 and 14 September (on New York and Washington), in Letters to Anne [Dixon], Owen Dixon, Personal Papers; and Dixon to Lord Simonds, 12 February 1957 (after Suez): ‘From the time it [the United Nations]

was conceived in 1944 at Dumbarton Oaks to the present moment I have regarded it as a danger & little else particularly to all our British interests. I hardly expected however to see it fall under the combined influence of an Afro Asian gang and the Soviets, with America lending support. Nor did I ever expect to find myself in such full sympathy with the Jews in Palestine’. In Correspon74 7S 76

dence 1957-1959, Owen Dixon, Personal Papers. Alice Dixon, Travel Journal, 4 September 1955, Owen Dixon, Personal Papers.

Owen Dixon, Diary, 6 September 1955, Owen Dixon, Personal Papers. Owen Dixon, Diary, 8, 9, 14 September 1955, Owen Dixon, Personal Papers.

Alice Dixon, Travel Journal, 19 September 1955. Daryl Dawson was there as a

Yale student: ‘I didn’t understand the lecture at all. Dixon was no orator and,

delivered orally, it was very hard to follow. It was only in subsequent years,

when I read and reread “Concerning Judicial Method”, thatI realised how deep 78 9 80

82

it was’. Communication with the author.

‘Concerning Judicial Method’, address at Yale University, 19 September 1955. Dixon to Lord Reid, 9 January 1956, in Correspondence 1955-1956, Owen Dixon, Personal Papers. Felix Frankfurter to Dixon, 12 October 1956, in Correspondence Owen Dixon, Personal Papers.

1955-1956,

Dixon to Felix Frankfurter, 19 October 1956, in Correspondence 1955-1956, Owen Dixon, Personal Papers. Lord Simonds to Dixon, 6 November 1955, in Correspondence 1955-1956, Owen Dixon, Personal Papers. See also Simonds to Dixon, 11 February 1956,

same file: ‘He is learned, very learned, in the sense that he knows as much law as the rest of the Bench put together and has it at his finger tips. But if you add, that, if so, much learning hath made him mad, I can only respectfully concur’; and

Simonds to Dixon, 24 November 1957: ‘I am, I think, less happy with my team

than at any time these thirteen years. Denning himself is a thorn in the flesh— there is in him not only a passion for display but a faultiness of judgment which a3

may become dangerous’. Owen Dixon to Lord Simonds, 15 April 1956, in Correspondence 1955-1956,

Owen Dixon, Personal Papers.

360 84 as

86

NOTES

(PAGES

254

TO

258)

Quotations are from the paper as published in Jesting Pilate, pp. 152-65. Dixon to Felix Frankfurter, 19 October 1956. The attack was aimed at Denning’s

judgment in the celebrated case of Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130. Dixon, ‘Marshall and the Australian Constitution’, address at Harvard Univer-

sity, 23 September 1955, p. 171. He was especially cautious over the purchase of the ‘Ince Hall Madonna’, reputedly a Van Eyck but believed by more than one expert to be a seventeenthcentury copy of a Van Eyck. In the event it would be purchased and hung as a Van Eyck. Dixon was re-elected chairman in 1957, noting: ‘Felton Bequest ctee ... I was chosen Chairman

88 89 a 9 93

9s

97 98

for anor [another] year. Bt 2 more

Owen Dixon, Diary, 1 June 1957, Owen Dixon, Personal Papers. Owen Dixon, Diary, 8 and 10 October and 4 November

Greek vases’.

1955, Owen

Dixon,

Personal Papers. Owen Dixon, Diary, 16 November 1955, Owen Dixon, Personal Papers. Owen Dixon, Diary, 6 January 1956, Owen Dixon, Personal Papers.

R v Kirby; ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254.

R v Kirby; ex parte Boilermakers’ Society of Australia (1956) 94 CLR 275.

254 at

See, for instance, Brian Galligan, Politics of the High Court, pp. 208-9. See also Geoffrey Sawer, ‘The Separation of Powers in Australian Federalism’. J. M. Finnis, ‘Separation of Powers in the Australian Constitution’, p. 159. See, for example, P. H. Lane, ‘The Decline of the Boilermakers Separation of Powers Doctrine’. Attorney-General (Commonwealth) CLR 529.

v The Queen

[1957] AC

288; (1957) 95

Royal Commission on the Constitution of the Commonwealth, Minutes of Evidence, part 3, p. 782; and see chapter 4. Dixon to Lord Simonds, 15 April 1956, in Correspondence 1955-1956, Owen Dixon, Personal Papers. Dixon to Felix Frankfurter, 16 April 1956, in Correspondence 1955-1956, Owen Dixon, Personal Papers. Felix Frankfurter

to Dixon,

16 April

1956,

in Correspondence

1955-1956,

Owen Dixon, Personal Papers. Owen Dixon to Lord Simonds, 15 April 1956, in Correspondence 1955-1956, Owen Dixon, Personal Papers. Lord Simonds to Dixon, 25 April 1956, in Correspondence 1955-1956, Owen Dixon, Personal Papers.

Lord Simonds to Dixon, 3 February Owen Dixon, Personal Papers. Dixon

1957, in Correspondence

to Lord Simonds, draft, 12 February

1959, Owen Dixon, Personal Papers. Dixon, ‘The Late Sir George Rich’.

1957-1959,

1957, in Correspondence

1957-

NOTES

(PAGES

258

TO

263)

361

Richard Searby, interview with the author, 24 February 1999.

10

12 1B

“4 1s 16 "7

19 20 au

Owen Dixon, Diary, 7 April 1956, Owen Dixon, Personal Papers. Owen Dixon, Diary, 8 July 1956, Owen Dixon, Personal Papers; and Robert J. Hawke, conversation with the author, Sydney, 1999. Owen Dixon, Diary, 6, 7, 8, 12 July 1956, Owen Dixon, Personal Papers. Owen Dixon, Diary, 16 July, 23 August, 22 October 1956, and 27 January 1957, Owen Dixon, Personal Papers; and Dixon to Menzies, 13 November 1956, Robert Menzies, Papers. Through the 1950s there are references in the

diaries to irregularities of the heart, none apparently severe. Clive Fitts diagnosed fibrillation and Dixon began a course of digitalis on 31 October 1956. (Dixon’s previous physician, Sir John Newman Morris, died in early 1957.) Owen Dixon, Diary, 11 September and 8 October 1956, Owen Dixon, Personal Papers.

Owen Dixon, Diary, cussion with Casey), essentially unchanged. month was different: opposition to Spicer’s

26 September (‘wicked’) and 28 September 1956 (disOwen Dixon, Personal Papers. Direct speech in Diary, Menzies’ version as he put it to Dixon the following in his reply to the Cabinet’s telegram he expressed his appointment but they went ahead and made it anyway.

Owen Dixon, Diary, 22 October 1956. See Cassandra Pybus, Gross Moral Turpitude.

Richard Searby, interview with the author, 24 February 1999. Transport Publishing Co. Pty Ltd v Literature Board of Review (1956) 99 CLR 111 at 124-5.

Transport Publishing Co. Pty Ltd v Literature Board of Review (1956) 99 CLR 111 at 116-18. Owen Dixon, Diary, 27 January 1957 and 21 November 1956, Owen Dixon, Personal Papers. See also the entry for 22 September 1961 to the same effect. Richard Searby, interview with the author, 24 February 1999. Owen Dixon, Diary, 23 May

1957, Owen Dixon, Personal Papers; Orr v Uni-

versity of Tasmania (1957) 100 CLR 526. Orr’s appeal was dismissed.

Douglas I. Menzies, ‘The Right Honourable Sir Owen Dixon, O.M., G.C.M.G.’,

p. 3. Richard Searby notes that ‘if Dixon thought counsel appearing before the Court was in substantial trouble—either by overlooking an argument or not doing an argument justice—he would, perhaps five minutes before the Court was due to rise, say “Mr So-and-So, perhaps there is nothing in it, but I wonder whether you might like to take into account such-and-such (or whether the case of X v Y is relevant, or whatever). I think we shall adjourn now”, and the Court

22 23

would rise. He didn’t want to argue with counsel’, Rather than derailing counsel’s argument by an observation, ‘he wanted to let counsel have time to consider and prepare’. Richard Searby, correspondence with the author. Owen Dixon, Diary, Papers.

15,

18, 19, 20 February

1957, Owen

Dixon, Personal

Owen Dixon, Diary, 26 March 1957, Owen Dixon, Personal Papers.

362 a4

28

NOTES See Owen

30 Ey 2 3

263

Dixon, Diary, 21 November

TO

268)

1961: ‘At the conference

I submitted

Kitto’s judgment to a thorough examination & criticism’; the next day ‘Kitto said he thought he was wrong in the Prowse case’. Owen Dixon, Personal Papers. Owen Dixon, Diary, 6 and 7 March, 26 December 1954. Owen

28 2

(PAGES

1957; also 8-10 November

Dixon, Personal Papers.

Richard Searby, interview with the author, 24 February 1999. Dixon, ‘The Common Law as an Ultimate Constitutional Foundation’; Owen Dixon, Diary, 16 July 1957, Owen Dixon, Personal Papers.

Dixon, ‘A Legacy of Hadfield, M’Naghten and Maclean’.

Owen

Dixon, ‘The Honorable Mr. Justice Felix Frankfurter—A

Tribute from

Australia’. Owen Dixon, ‘Jesting Pilate’. Victoria v Commonwealth (1957) 99 CLR 575. Victoria v Commonwealth (1957) 99 CLR 575 at 611-12; see also Commonwealth v Cigamatic Pty Ltd (1962) 108 CLR 372 at 376-9. Uther v Federal Commissioner of Taxation (1947) 74 CLR 508. The Common-

wealth was advantaged by a range of express powers while the States had almost no legislative power over the Commonwealth. Dixon gave full weight to

section 109 of the Constitution—that ‘When a law of a State is inconsistent

with a law of the Commonwealth, the latter shall prevail, and the former shall,

“ 38 6 v 38 39

40 a a2

43 44

4s

to the extent of the inconsistency, be invalid’, though he read this as subject to the implications resting in the federal frame of the Constitution. Owen Dixon, Diary, 9 October 1957, Owen Dixon, Personal Papers.

Dixon to Anne Dixon, 28 March 1958, in Letters to Anne [Dixon], Owen Dixon, Personal Papers. Richard Searby, interview with the author, 24 February 1999. Owen Dixon, Diary, 5 February 1958, Owen Dixon, Personal Papers.

Dixon to Anne Dixon, 12 February Dixon, Personal Papers. Dixon to Anne Dixon, 15 February

1958, in Letters to Anne

[Dixon], Owen

1958, in Letters to Anne

[Dixon], Owen

Dixon, Personal Papers. Dixon supported the preservation of important architecture: see his ‘Preface’ in Early Melbourne Architecture. Owen Dixon, Diary, 1 and 2 March 1958, Owen Dixon, Personal Papers. Owen Dixon, Diary, 31 March, 23 April 1958, Owen Dixon, Personal Papers. Owen Dixon, Diary, 14 April 1958, Owen Dixon, Personal Papers. Webb once

told Richard Searby, ‘You know, Searby, I shouldn’t be on this Court. The Chief is such a wonderful man and I really can’t help him at all. I wish I could burt he stands out from all of us. The others help him; I just can’t’. Richard Searby, written communication with the author. Owen Dixon, Diary, 24 December 1962, Owen Dixon, Personal Papers. Owen Dixon, Diary, 7 June 1958, Owen Dixon, Personal Papers; and Dixon to Menzies, 27 June 1958, Robert Menzies, Papers. This dinner was written up by

Marie McNair under “Town Topics’ in the Washington Post for 9 June.

See Gerald Gunther, Learned Hand: The Man and the Judge, pp. 461-2.

NOTES 46

a8 49 50

st 52 53 54 55

56 7 58 59

61

(PAGES

268

TO

272)

363

Alice Dixon, Travel Journal, 19 June 1958, Owen Dixon, Personal Papers.

English Abstracts of Latin Orations delivered by the Public Orator, typescript circulated at Encaenia, University of Oxford, 25 June 1958, inserted in Alice Dixon, Travel Journal, 1958.

Dixon to Menzies, 27 June 1958, Robert Menzies, Papers, MS 4936, Series 1,

Folder 80. Owen Dixon, Diary, 5 July 1958, Owen Dixon, Personal Papers.

James Guest in conversation with the author, September 2000; and Alice Dixon, Travel Journal, 1958, passim. See too Dixon’s letter to Anne Dixon of 14 September 1958 on the racial troubles at Notting Hill and Nottingham, in Letters to Anne [Dixon], Owen Dixon, Personal Papers. Dixon to Felix Frankfurter, 13 November 1958, 1959, Owen Dixon, Personal Papers.

in Correspondence

1957-

Radcliffe had his revenge in Commissioner of Stamp Duties (Queensland) v Livingston (1964) 112 CLR 12; [1965] AC 694.

Mayfair Trading Co. Pty Ltd v Dreyer (1958) 101 CLR 428. Kasumu v Baba-Egbe [1956] AC 539.

Lodge v National Union Investment Co. Ltd [1907] 1 Ch. 300. This had been followed by the High Court of Australia in Langman v Handover (1929) 43 CLR 334, which Dixon believed should continue to govern the Supreme Court of New South Wales in its equitable jurisdiction. Mayfair Trading Co. Pty Ltd v Dreyer (1958) 101 CLR 428 at 452-6. Dixon to Felix Frankfurter, 11 May 1959, in Correspondence 1957-1959, Owen Dixon, Personal Papers.

‘Two Portraits’. Owen Dixon to John Young, 14 February 1959, Owen Dixon, Personal Papers.

1959, in Correspondence

1957-

Owen Dixon, Diary, 13 March 1959, Owen Dixon, Personal Papers.

Owen Dixon, Diary, 4 and 8 May 1959, Owen Dixon, Personal Papers; and

Owen Dixon to Felix Frankfurter, 11 May 1959, in Correspondence 1957-1959, 62 63

Owen Dixon, Personal Papers.

Owen Dixon, Diary, 29 July 1959, Owen Dixon, Personal Papers.

National Research Development Corporation v Commissioner of Patents (1959) 102 CLR 252 at 271 and 275; the citations are to Re Virginia-Carolina Chemical Corporation’s Application [1958] RPC 35 at 36, and Maeder v Busch

(1938) 59 CLR 684 at 706.

65 66

George Lloyd-Jacob to Dixon, 14 March 1960, in Correspondence 1960-1973, Owen Dixon, Personal Papers.

Commissioner for Railways (New South Wales) v Cardy (1960) 104 CLR 274 at 285. Felix Frankfurter to Dixon, 6 December 1960, in Correspondence 1960-1973, Owen Dixon, Personal Papers. Dixon replied, ‘It was not composed without a certain amount of heart-searching’. Dixon to Frankfurter, 20 December 1960, same file.

364 or

NOTES

(PAGES

272

TO

276)

Attorney-General (South Australia) v Brown [1960] AC 432. This was a case of

apparently motiveless murder. The Privy Council strongly criticised the High Court judgment and particularly its reference to ‘the true operation of uncontrollable impulse as a possible symptom of insanity of a required kind and degree’, which appeared to their Lordships to imply falsely that the law recognised uncontrollable impulse as a symptom of insanity within the M’Naghten tules. On his judgment in this case see Owen Dixon to Frankfurter, 20 Decem68 6 70

ber 1960, in Correspondence 1960-1973, Owen Dixon, Personal Papers. Felix Frankfurter to Dixon, 16 March 1960, in Correspondence 1960-1973, Owen Dixon, Personal Papers.

Dixon, ‘A Legacy of Hadfield, M’Naghten and Maclean’, p. 224. Owen Dixon to Lord Pearce, 30 December

1959. Lord Morton assured Dixon

on 6 April 1960 that no Africans would ever sit on the Privy Council. In Correspondence 1957-1959, Owen Dixon, Personal Papers. Geoffrey Robertson

claims that Dixon was ‘physically revolted by the prospect of sitting alongside a black judge’: Robertson, The Justice Game, p. 10. Possibly so, but that was not the point of Dixon’s objection. Discussion with R. G. Menzies, Owen Dixon, Diary, 28 February 1960, Owen

72

Dixon, Personal Papers.

Dunrossil, Dixon noted, ‘failed to lift the bible in taking the oath of office’ (perhaps because he was a Scot, though Dixon does not comment). Owen Dixon, Diary, 2 February 1960, Owen Dixon, Personal Papers. The occasion

provided rare film footage of Dixon: Movietone News

for February

1960,

73

section captioned ‘Viscount Dunrossil: New Gov.-General Arrives in Aust.", copy in possession of the author. Owen Dixon, Diary, 15 February 1960, Owen Dixon, Personal Papers. On Evatt’s appointment see also Lord Simonds to Dixon, 6 January 1960, in Cor-

4

Dixon to Lord Pearce, 28 February 1960, Owen Dixon, Personal Papers. Pearce

7s 76

respondence 1960-1973, Owen Dixon, Personal Papers.

assured Dixon that Evatt would never receive an invitation: Pearce to Dixon, 25 March 1960, in Correspondence 1960-1973, Owen Dixon, Personal Papers. Dennis Hotels Pty Ltd v Victoria (1960) 104 CLR 529.

Peterswald v Bartley (1904) 1 CLR 497.

Matthews v Chicory Marketing Board (Victoria) (1938) 60 CLR 263 at 29178 79 30 a1 82 83 84

304; Parton v Milk Board (Victoria) (1949) 80 CLR 229.

Dennis Hotels Pty Ltd v Victoria (1960) 104 CLR 529 at 539-40.

On the ramifications of this case see Michael Coper, Encounters with the Australian Constitution, pp. 212-22. Ha v New South Wales and Walter Hammond South Wales (1997) 189 CLR 465.

& Associates Pty Ltd v New’

Owen Dixon, Diary, 5 and 6 March 1960, Owen Dixon, Personal Papers. Owen Dixon, Diary, 27 April and 11 May 1960, Owen Dixon, Personal Papers.

Owen Dixon, Diary, 11 June 1960, Owen Dixon, Personal Papers. Stapleton v The Queen (1952) 86 CLR 358 at 365.

NOTES 85 86 87 88 89

” 92 93

94 9s 96 97 98 99

(PAGES

276

TO

282)

365

Director of Public Prosecutions v Smith [1961] AC 290; Director of Public Prosecutions v Smith [1960] 3 WLR 546: [1960] 3 All ER 161. James Merralls in conversation with the author, 2000. Dixon to Felix Frankfurter, 20 December 1960, in Correspondence 1960-1973, Owen Dixon, Personal Papers. Parker v The Queen (1963) 111 CLR 610 at 632. Dixon to Felix Frankfurter, 20 December 1960, in Correspondence 1960-1973, Owen Dixon, Personal Papers. Owen Dixon, Diary, 28 March 1961, Owen Dixon, Personal Papers. At the Melbourne Club. Owen Dixon, Diary, 2 June 1961, Owen Dixon, Per-

sonal Papers.

.

See Dixon’s tribute, ‘The Late Sir Wilfred Kelsham

Fullagar’, read from the

bench. Owen Dixon, Diary, 16 October 1961, Owen Dixon, Personal Papers. The tape

is with the Bar Council of Victoria. Owen Dixon, ‘Owen Dixon Chambers Official Opening 16th October 1961’, Melbourne, and Robert Menzies’ address on the same occasion.

Federal Commissioner of Taxation v Newton (1957) 96 CLR 577; Hancock v Federal Commissioner of Taxation (1961) 108 CLR 258. Owen Dixon, Diary, 15 and 19 January 1962, Owen Dixon, Personal Papers. Owen Dixon, Diary, 2, 3, 5 February 1962, Owen Dixon, Personal Papers. Dean Acheson to Dixon, 14 August 1962, in Correspondence 1960-1973,

Owen Dixon, Personal Papers.

Uther v Federal Commissioner of Taxation (1947) 74 CLR 508 at 529-30. Commonwealth v Cigamatic Pty Ltd (1962) 108 CLR 372. It provoked an article by R. P. Meagher and W. M. C. Gummow, ‘Sir Owen Dixon’s Heresy’,

which concluded that ‘It is to be hoped that the High Court will at the earliest opportunity

be invited to reconsider,

and

reconsider,

the correctness of the

decision in Cigamatic’ (p. 29). Tait v The Queen (1962) 108 CLR 620 at 623. S. E. K. Hulme, ‘Tait’s Case, and Sir Owen Dixon’, p. 37. The advice came from Sir Henry Winneke, the Victorian Solicitor-General. Dixon told Richard Searby

that he had added the declaration at the foot of the order because ‘I didn’t want the Chief Secretary inadvertently to find himself charged with murder’. Richard

Searby, written communication with the author. For the most extensive treat-

ment of the case see Creighton Burns, The Tait Case. Owen Dixon, Diary, 31 October 1962, Owen Dixon, Personal Papers. Peter Ryan, ‘Owen Dixon: An Intellectual Man of Passion’, p. 122. Ryan saw Dixon on Creighton Burns’ behalf to gain access to the tapes of the hearing, which Dixon provided. Owen Dixon, Diary, 31 January 1963, Owen Dixon, Personal Papers; and see too the entries for 7 and 19 February. Owen Dixon, Diary, 19 February and 13 March 1963, Owen Dixon, Personal Papers.

366

NOTES

(PAGES 282 TO 286)

Owen Dixon, Diary, 4, 26, 28 May 1963, Owen Dixon, Personal Papers. Lord Simonds to Dixon, 9 June 1963, in Correspondence 1960-1973, Owen Dixon, Personal Papers. Lord Haldane had it also, but more for his work as a

statesman.

He wrote, ‘now that judicial decisions appear to have succeeded in settling the chief general tests governing the application of s. 92 . . . it has seemed to me that the question whether a given transaction obtains the protection of s. 92 from the interference of a statutory provision or an exercise of governmental authority must be determined by the facts of the transaction rather than the general charac-

ter of the law considered in the abstract’. Chapman 10 uw 2 3 “

1s 16 v 18 T]

v Suttie (1963)

110 CLR

321 at 325. His judgment proceeded to do just that. Owen Dixon, Diary, 17 January and 1 February 1964, Owen Dixon, Personal Papers.

Owen Dixon, Diary, 13 February 1964, Owen Dixon, Personal Papers. Dennis Hotels Pty Ltd v Victoria (1960) 104 CLR 529, examined earlier this chapter. Owen Dixon, Diary, 25 March

1964, Owen Dixon, Personal Papers.

Dixon wrote to T. W. L. MacDermot that day, ‘My views are extremely forensic and traditional and I don’t think such things should take place’, but Menzies had been ‘extremely kind and took this step contrary to all tradition’. In Correspondence on Retirement as Chief Justice, 1964, Owen Dixon, Personal Papers. ‘Upon Retiring from the Office of Chief Justice’, p. 255. ‘Upon Retiring from the Office of Chief Justice’, p. 256. Dixon to Sir Herbert Mayo, 1 May 1964, in Correspondence on Retirement as Chief Justice, 1964, Owen Dixon, Personal Papers.

Dixon to Felix Frankfurter, 4 May 1964, in Correspondence on Retirement as Chief Justice, 1964, Owen Dixon, Personal Papers. S. A. FE. Pond to Dixon, 26 April 1964, and Dixon in reply, 4 May 1964, in Correspondence on Retirement as Chief Justice, 1964, Owen Papers; Horace, Odes, III, xxx.

13, ‘Upon Dixon 4 May Dixon,

RETIREMENT:

Dixon, Personal

1964-1972

Retiring from the Office of Chief Justice’, p. 256. to Judge Henry Holt, 1 May 1964, and Owen Dixon to John Nimmo, 1964, in Correspondence on Retirement as Chief Justice, 1964, Owen Personal Papers.

Card dated 28 April 1964, in Correspondence

sonal Papers.

1960-1973, Owen

Dixon,

Owen Dixon, Diary, 23 April 1964, Owen Dixon, Personal Papers. Owen Dixon, Diary, 24 and 27 April 1964, Owen Dixon, Personal Papers. Owen Dixon, Diary, 15 August 1964, Owen Dixon, Personal Papers.

Per-

NOTES

(PAGES

287

TO

294)

367

A copy of this had been given to him by his last associate, Ian Spry, following Dixon’s retirement. Owen Dixon, Diary, 4 May 1965, Owen Dixon, Personal Papers. David Marr, Barwick, p. 213. Elsewhere one finds the remarkable assertion that 10 a 12

Dixon was ‘humourless’ (p. 49).

Frank Kitto, ‘Some Recollections of Sir Owen Dixon’. Alice Dixon to Robert G. Menzies, 9 February 1970, Robert Menzies, Papers, MS 4936, Series 1, Folder 81.

Dixon expressed ‘quite unqualified praise’ of it to Mr Justice Norris of the Supreme Court of Victoria and told Mr Justice Lush it was ‘the best legal book ever to come out of Australia’: Sir John Norris to Ian Spry, 15 October 1987, and Spry’s note of conversation with Mr Justice Lush, 22 August 1972, in Ian Spry,

3 “4 is 16 7

18 19 20 a

23

Private Papers. Interestingly, Dixon gave Spry his best copy of the Agamemnon. A. P. Fleming to Dixon, 25 November 1970, and Dixon to Fleming, 30 November 1970, in Correspondence 1960-1973, Owen Dixon, Personal Papers. Russell Danby, interview with the author, 19 March 1999. Leslie P. Stevenson, interview with the author, 22 July 1999.

Leslie P. Stevenson, interview with the author, 22 July 1999. Transcripts of tape-recorded messages between Sir Robert Menzies and Dixon, mid-February and 30 and 31 March 1972, in Correspondence 1960-1973, Owen Dixon, Personal Papers. Betty Danby, conversation with the author. Russell Danby, interview with the author, 19 March 1999. Lord Denning in a dictated letter to the author, 27 November 1998. Information from Graham and David Menzies, sons of Frank Menzies; and Betty Danby, conversation with the author. Betty Danby, conversation with the author. Information from Canon W. Holt, then vicar of St Mark’s, Camberwell, Lady

Dixon’s church: ‘He never professed to me any religious attachment’. Conversation with the author, 1999.

14 THE MEASURE OF DIXON'S GREATNESS lam grateful to Sir John Young, Sir Daryl Dawson, James Merralls and Jan Spry

for their suggestions here. It is an extendable list. Sir Ninian Stephen would add ‘a dedication to principle from which neither expediency nor a temptation to reshape society would cause him to swerve, a determination to achieve justice but only by the logical application of legal rules and a successful resolve to maintain harmony in the conduct of proceedings and in the other work of his court’. Sir Ninian Stephen, Sir Owen Dixon: A Celebration, pp. 39-40. Colin Howard, ‘Sir Owen Dixon and the Constitution’, p. 7.

368 3

NOTES

(PAGE

294)

Colin Howard, interview with the author, November

1999. See also Howard,

‘Sir Owen Dixon: Giant Who Enriched the Law’. Ha v New South Wales and Walter Hammond & Associates Pty Ltd v New

South Wales (1997) 189 CLR 465. The CLR headnote records that Parton v Milk Board (Victoria) (1949) 80 CLR 229 (in which the Dixon approach to section 90 was accepted) was affirmed and observations of Dixon in Matthews v Chicory Marketing Board (Victoria) (1938) 60 CLR 263 at 291-304 (the 5

locus classicus of his views on the subject) were approved.

Frank Kitto, ‘Some Recollections of Sir Owen Dixon’, p. 578.

BIBLIOGRAPHY

OWEN

DIXON,

PERSONAL

PAPERS

Diaries and Journals

Alice Dixon Travel Journals, 1922-23, 1942, 1953, 1955, 1958.

J. W. Dixon Travel Journal for 1922.

Owen Dixon Diaries, 1911, 1929, 1935-65. Owen Dixon Travel Journals, 1923-24, 1939.

Notebooks, and Opinions Owen Dixon Notebook relating to Skin Wool Appeal (Privy Council) with

two loose enclosures. Owen Dixon Notebook: ‘Table of Matters, Parties, Subjects’. Owen Dixon Three Volumes of Opinions: vol. I, June 1921-December 1925 (mostly 1925); vols II and III, mostly 1927.

Papers, Speeches and Broadcast Talks in the United States, Address Address Address Address

to to at at

1942-44

the Australian Society of New York, 25 January 1943. the British War Relief Society, New York City, 16 February 1943. Brown University, Providence, Rhode Island, 15 March 1944. the Convocation of the American University, Washington, DC,

30 July 1943.

369

370

BIBLIOGRAPHY

Address to the Council of UNRRA, Atlantic City, 11 November

Address to the English Speaking Union and the ANZAC

1943.

Division of the

British War Relief Society, Boston, 4 October 1943.

Address to the Executive Club of Memphis, Tennessee, 19 February 1943. Address

for the Newcomen

Society, Washington,

DC,

20

October

1943

(undelivered). Address to the Nobel Anniversary Dinner, New York, 10 December 1943.

Address at the Opening of the Australian Exhibition, Los Angeles County Museum of History and Art, 11 July 1942.

Address on the Proposed Enlargement of Federal Power in Australia to Deal with Post-War Reconstruction, to the American Bar Association, Washing-

ton, DC, 7 January 1943. Address to the Rotary Club of New Orleans, 9 February 1944.

Address to the Round Table, Tulane University, New Orleans, 10 February 1944. Address to the War Fund Rally of the Red Cross, Richmond, Virginia,

10 March 1943. Address to the Women’s Canadian Club and the Canadian Club, Toronto,

18 and 19 March 1943.

Broadcasts on BBC and American stations, 16, 21, 26 November 1943. Broadcast on station WOR, and shortwave to Australia, 12 November 1943.

Broadcast on station WSB, 6 March 1994. Broadcast on station WWDC, 5 August 1943. Broadcast on station WWDC 1942. Interview on station WWDC,

and Atlantic network, 9 p.m., 12 November 4 March

1943.

Statement at Press Conference, Washington, DC, 17 June 1943, on return from a visit to Australia.

General

Annual Reports and Accounts. Articles of Clerkship 19 January 1909. Brief to Appear before Privy Council in Skin Wool Case. Citation for GCMG. Commonplace Book, and Miscellaneous Notes and Letters. Congratulatory Messages on Appointment as Acting Justice of the Supreme Court of Victoria, July 1926. Congratulatory Messages on Appointment to the High Court of Australia,

February 1929.

BIBLIOGRAPHY

Correspondence Correspondence Correspondence Correspondence

1947-1954. 1955-1956. 1957-1959. 1960-1973.

Correspondence

from

Correspondence to end of 1946. Lady

Dixon

to Dr and

371

Mrs

S. H. Z. Woinarski,

1942-1944, Correspondence Relating to 1958 Trip to United States and United Kingdom. Correspondence on Retirement as Chief Justice, 1964.

Documents Concerning Address to English Speaking Union, 14 March 1949.

Documents Concerning United States Visit 1955.

Franklin’s Letters.

Gazetted Notice of Appointment as Chief Justice, High Court of Australia. Invitation to Jubilee Celebration, University of Melbourne, 23 April 1906. Kashmir Correspondence 1950. Letters to Anne [Dixon]. Letters of Appointment as Minister to Washington, 1 June 1942. Letters of Congratulation on Appointment as Chief Justice. Letters to Lady Dixon (1950). Letters of Sympathy on Dixon’s death, to Betty Danby.

Miscellaneous Documents ‘For the High Court’ including ms. by Lord Haldane.

Miscellaneous Letters to Lady Dixon. Obituaries, etc.

Papers Relating to Lord Tucker’s Inquiry into the Desirability of a Power to Grant a New Trial in Criminal Appeals (1953).

Papers and Speeches—General, 1937-1963. Personal Papers Relating to Kashmir.

Postcards from Sir Owen and Lady Dixon to their daughter Anne. Transcripts of Proceedings, High Court of Australia: 1952, 1964.

Drafts of Addresses

Address on Company Law delivered 18 February 1925 at the Melbourne Town Hall.

Address on Causation and the Law to the Law Students’ Society, University of Melbourne, 22 March 1937, Dixon’s ms. notes and John Kinnear’s

précis. Address on Roosevelt to the Australian-American Association, Melbourne, 4 July 1949.

372

BIBLIOGRAPHY

OWEN DIXON, FILES AT AUSTRALIAN ARCHIVES Advisory War Council Minute Files, Series A 2684, Canberra.

Allied Consultative Shipping Council, Papers of Sir Owen Dixon, Series MP 285/8, Folder 2, Melbourne.

Central Wool Committee, Verbatim Notes of Proceedings at Meetings, Series MP 136/17, Melbourne. Coastal Shipping Control Board, Series MP 285/8, Melbourne.

Commonwealth

Papers

of Sir Owen

Dixon,

Chairman,

Transport Advisory Board, Papers of Sir Owen

Dixon,

Series MP 285/8, Folder 5, Melbourne.

Department of External Affairs, Papers associated with Australian Legation, Washington, 1942-44, Series A 3300, Canberra.

Department of External Affairs, Papers associated with Kashmir mediation, 1950, Series A 5460, Canberra. Marine War Risks Insurance Board, Papers of Sir Owen

285/8, Folder 7, Melbourne.

Dixon, Series MP

Navy Office, Melbourne, Papers of Sir Owen Dixon, Series MP 285/8, Folder 8, Melbourne. Owen Dixon Appeals Notebooks, 1944-1961, Series A 10673, Canberra.

Owen Dixon Chambers and Original Jurisdiction Notebooks, 1944-1951, Series A 10676, Canberra. Owen Dixon Motions Notebooks, 1931-1946, Series A 10670, Canberra.

Owen Dixon Original Jurisdiction Notebooks, 1944-1949, Series A 10678, Canberra.

OWEN

DIXON,

PUBLICATIONS

Where an article has been published in Jesting Pilate, page references in the notes are to that publication.

‘Aspects of Australian Federalism’, address to the Law Club of the Faculty of the School of Law, University of Toronto, 18 March

Jesting Pilate, pp. 113-22.

‘Charge to the jury’ in R v Porter (1933)

55 CLR

1943, in Dixon,

182, reprinted

under

‘Editor’s Note’ in Proceedings of the Medico-Legal Society of Victoria,

1 (1931-33), pp. 49-52.

‘Comments in discussion’, tenth Convention of the Law Council of Australia, Melbourne, Australian Law Journal, 31 (1957), pp. 322-3 (where it is untitled),

BIBLIOGRAPHY

373

‘Comments on Prof. Kenneth Shatwell’s paper’, tenth Convention of the Law Council of Australia, Melbourne, Australian Law Journal, 31 (1957),

pp. 340-2 (where it is untitled).

‘The Common Law as an Ultimate Constitutional Foundation’, address to tenth Convention of the Law Council of Australia, Melbourne, 16 July 1957, Australian Law Journal, 31 (1957), pp. 240-5; and in Dixon,

Jesting Pilate, pp. 203-13. ‘Concerning Judicial Method’, address at Yale University, 19 September 1955, Australian

Law Journal, 29 (1955), pp. 468-76;

Jesting Pilate, pp. 152-65.

and in Dixon,

‘De Facto Officers’, Res Judicatae, 1 (iv) (October 1938), pp. 285-92; and

in Dixon, Jesting Pilate, pp. 229-37. ‘The Development of the Law of Homicide’, prepared for the first Con-

vention of the Law Council of Australia, Melbourne, 31 October 1935, Australian Law Journal, 9 (1935-36), Supp., pp. 64-9; and in Dixon,

Jesting Pilate, pp. 61-70. ‘Discussion’, remarks on a paper by R. S. Ellery, Medico-Legal Society of Victoria, 2 April 1932 (‘The Plea of Insanity’), Proceedings of the MedicoLegal Society of Victoria, 1 (1931-33), pp. 41-4; recast and updated for the Hobart Medico-Legal Society and delivered to them on 18 February 1955 and published in their Proceedings for 1955. ‘Government Under the American Constitution’, address to the English Speaking Union, Melbourne, 21 December 1944, in Dixon, Jesting Pilate, pp. 106-12.

‘The Honorable Mr. Justice Felix Frankfurter—A Tribute from Australia’,

Yale Law Journal, 67 (1957), pp. 179-86; and in Dixon, Jesting Pilate, pp. 180-7.

‘International Relations’, address for International Affairs Week, University

of Melbourne, 30 June 1949, in Dixon, Jesting Pilate, pp. 123-8.

‘Jesting Pilate’, George Adlington Syme Oration to the Royal Australasian College of Surgeons, 20 August 1957, Melbourne, in Dixon, Jesting Pilate, pp. 1-10.

Jesting Pilate and Other Papers and Addresses, Law Book Company, Melbourne, 1965. ‘The Late Sir George Rich’, CLR, 94 (1956), iv—vi.

‘The Late Sir Wilfred Kelsham Fullagar’, CLR, 103 (1961), iv—v.

‘The Law and the Constitution’, address at the University of Melbourne,

14 March 1935, Law Quarterly Review, 51 (1935), pp. 590-614; and in Dixon, Jesting Pilate, pp. 38-60.

‘The Law and the Scientific Expert’, address to the Victorian Branch of the Australian Chemical Institute, 16 July 1934, in Dixon, Jesting Pilate, pp. 24-37.

374

BIBLIOGRAPHY

‘A Legacy of Hadfield, M’Naghten and Maclean’, address to tenth Convention of the Law Council of Australia, Melbourne, 16 July 1957, Australian Law Journal, 31 (1957), pp. 255-61; and in Dixon, Jesting Pilate,

pp. 214-25.

‘Marshall and the Australian Constitution’, address at Harvard University, 23 September 1955, in Arthur E. Sutherland (ed.), Government Under

Law: A Conference Held at Harvard Law School on the Occasion of the

Bicentennial of John Marshall Chief Justice of the United States, 18011835, pp. 305-25; and in Dixon, Jesting Pilate, pp. 166-79.

‘Owen Dixon Chambers Official Opening, 16th October 1961’, address at

the opening, in Law Institute Journal, 35 (1961), pp. 399-401. ‘Preface’, in Maie Casey (ed.), Early Melbourne Architecture, Oxford University Press, Melbourne, 1953. Presidential Government, Sir John Morris Memorial Lecture, Hobart, 20 February 1958, published as a booklet by Melbourne University Press for the Adult Education Board of Tasmania, Melbourne, 1958. ‘The Profession of Accountancy’, address to the second Asian and Pacific Accounting Convention, 4 April 1960, in Dixon, Jesting Pilate, pp. 192-7. ‘Professional Conduct’, address to the law students, University of Melbourne, 1953, in Dixon, Jesting Pilate, pp. 129-34; longer form in Papers and Speeches—General, 1937-1963, Owen Dixon, Personal Papers.

‘Remarks at the closing session’, ninth Convention of the Law Council of Australia, 22 July 1955, Australian Law Journal, 29 (1955), pp. 271-2 (where it is untitled). ‘Roosevelt and Hopkins’, Arthur E. Mills Oration, Hobart, 20 March 1953, in Dixon, Jesting Pilate, pp. 135-47 (where it is incorrectly dated

19 March 1953). ‘Science and Judicial Proceedings’, address to the Medico-Legal Society of Victoria, 30 September 1933, Proceedings of the Medico-Legal Society of Victoria, 2 (1933-36), pp. 1-31; and in Dixon, Jesting Pilate, pp. 11-23. Selections from the Judgments of Sir Owen Dixon, ed. N. H. Dooley, Law Book Company, Sydney, 1973. ‘The Separation of Powers in the Australian Constitution’, address to American Foreign Law Association, New York, 3 December

1942, Pro-

ceedings of the American Foreign Law Association, 20 (December 1942). ‘Sir Roger Scatcherd’s Will in Anthony Trollope’s Doctor Thorne’, prepared for the first Convention

of the Law

Council of Australia, Melbourne,

31 October 1935, Australian Law Journal, 9 (1935-36), Supp., pp. 72-9; and in Dixon, Jesting Pilate, pp. 71-81. ‘Sources of Legal Authority’,

address

to the American

Bar Association,

Chicago (not Detroit as erroneously stated in Jesting Pilate), 24 August 1943, in Dixon, Jesting Pilate, pp. 198-202.

BIBLIOGRAPHY

375

‘The Statute of Westminster, 1931’, address to the second convention of the Law Council of Australia, Adelaide, 25 September 1936, Australian Law Journal, 10 (1936-37), Supp., pp. 96-106; and in Dixon, Jesting Pilate,

pp. 82-99.

‘The Survival of Causes of Action’, University of Queensland Law Journal, I (1948), pp. 1-6; and in Dixon, Jesting Pilate, pp. 238-44.

‘The Teaching of Classics and the Law’, address to the Classical Association

of Victoria, 1963, in Dixon, Jesting Pilate, pp. 226-8. ‘Two Constitutions Compared’, address to the American Bar Association, Detroit, 26 August 1942, in Dixon, Jesting Pilate, pp. 100-5. ‘Two Portraits’, originally untitled address at the University of Melbourne, 4 April 1959, in Dixon, Jesting Pilate, pp. 188-91. ‘University Education in a Scientific Civilization’, presiding address, 12 January 1954, at a meeting of the Australian National Research Council, Canberra, on the same subject; in Dixon, Jesting Pilate, pp. 148-51. ‘Upon First Presiding as Chief Justice at Melbourne’, Australian Law Journal, 26 (1952) pp. 5-6 (where it is untitled); and in Dixon, Jesting

Pilate, pp. 250-1; longer version in Transcripts of Proceedings, High Court of Australia: 1952, 1964, Owen Dixon, Personal Papers.

‘Upon First Presiding as Chief Justice at Perth’, in Dixon, Jesting Pilate, pp. 252-4. ‘Upon Retiring from the Office of Chief Justice’, CLR, 110 (1964), viii—xiii

(where it is entitled ‘Retirement of the Chief Justice’); and in Dixon, Jesting Pilate, pp. 255-60. ‘Upon Taking the Oath of Office as Chief Justice’, CLR, 85 (1952), xi-xvi

(where it is entitled ‘Swearing in of Sir Owen Dixon as Chief Justice’); and in Dixon, Jesting Pilate, pp. 245-9.

OTHER

UNPUBLISHED

SOURCES

Acheson, Dean. Papers, Yale University Library. Aickin, Keith. Correspondence in possession of James Merralls. Anderson, Grant. Sir Owen Dixon, typescript, High Court of Australia, Canberra, 1993. Barry, John. Papers, Collection MS 2505, NLA.

Brooks, Herbert and Ivy. Papers, Collection MS 1924, NLA.

Campbell, Arthur. Correspondence in possession of James Merralls.

Chandler,J. Forty Years in the Wilderness, ms. cited by Gwen McWilliam in Wattle Road Hawthorn, typescript, 1997, Boroondara Library, Hawthorn

Branch, Melbourne.

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Moore, William Harrison. Papers, Correspondence files, 1/3, and collection of cards, Baillieu Library, University of Melbourne. Officer, Keith. Papers, Collection MS 2629, NLA. Papers related to Dixon’s mediation of Kashmir conflict, 1950, Files DAG 13/2.3.1 (3 boxes) and Folder S-0006-0001-01: Doc. S/1469; Personnel Action Form 30-2443, United Nations Archives, New York.

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lection, Baillieu Library, University of Melbourne. University of Oxford. English Abstracts of Latin Orations delivered by the

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Hasluck, Paul. Diplomatic Witness: Australian Foreign Affairs 1941-1947, Melbourne University Press, Carlton, 1980.

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——. The Measure of the Years, Cassell Australia, Melbourne, 1970. ——.

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address

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Merralls, James. ‘The Rt. Hon. Sir Owen Dixon, O.M., G.C.M.G., 1886— 1972’, Australian Law Journal, 46 (1972), pp. 429-35. ——. ‘Sir Hayden Erskine Starke’, in John Ritchie (gen. ed.), Australian

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INDEX OD refers to Owen Dixon

Abbas, Ghulam, 202, 206

Amalgamated Society of Engineers v Adelaide

Abbott, Joseph P., 116

Abdullah, Mohammad, 202, 205, 206 a Beckett, Sir Thomas, 13, 25 Abrahams, Harold Maurice, 42 Acheson, Dean, 146, 150, 172, 174, 177; Australian visit, 278-9; character, 149; and Howland Prize, 247-8; and Kashmir, 198,

228; on Felix Frankfurter, 141; and OD, 142, 143-4, 145, 151, 157, 158-9, 169, 171, 174, 184, 192, 193, 217, 218, 226, 242; opinion of OD, 149; and UNRRA,

169-70, 171 Acheson, Alice, 151, 184, 217, 247, 278-9 Acts Interpretation Act 1901, 244

ing Right Assn Ltd (1928), 51

Ahern v Cullis (1914), 308 Aickin, Keith Arthur, 278, 283, 286, 288, 338; as OD's associate, 118-19, 131; as OD's Third Secretary in Washington, 136, 138-9, 155, 158; on OD and Alan Watt, UNRRA,

177

for High

Court,

277;

at

Airline Case, see Australian National Airways PL v Commonwealth

Akiyama, Masatoshi,

American Foreign Law Association, 157

Amos, Sir Maurice, 110

Anderson, Archibald Simpson, 95 Anderson, (Joseph) Ringland, 95

Angle, Brig. H. H., 205 ‘ANZAC’ pact (1944), 172, ANZUS Treaty, 226, 228

173

Applebaum, Dr, 112

Arbitration Court, see Court of Conciliation and Arbitration

136, 146, 152, 335; OD’s attitude to, 152,

Adelaide Corporation v Australasian Perform-

proposed

American Bar Association, 153, 157

Arcadia Accords (‘Beat Hitler first’ policy),

Adam, Alistair, 277 Adeane, Sir Michael, 243

142;

Steamship Co. Ltd (1921), 32-3

Amemiya, Minoru, 124

131

Alderman, Harry Graham, 227, 346

Allied Consultative Shipping Council, 133, 134

Amalgamated Engineering Union v Alderdice PL (1928), 313, 321 Amalgamated Society of Engineers v Adelaide Steamship Co. Ltd (1920) (Engineers’ Case), 29-30, 32, 35, 52, 84-6, 122, 184, 254

160, 162; Roosevelt’s conception of, 163

Armstrong v Victoria (1955), 356 Armstrong v Victoria (No. 2) (1957), 239

Arnold, Gen. Henry H., 143, 151 Arnold, Dr Thomas, 8 Aron, Raymond, 268

Arrowsmith, Herbert Maxwell, 190 Ashburner, Richard,

187-8

Ashfield, Lord (Albert Henry Stanley), 107 Ashkanasy, Maurice, 263

Asquith, Herbert Henry, 3

Asquith, Joseph Dixon, 3

James Richard (Lord), 106, 107

Atkinson, John (Lord), 43

Atkinson v Custom Credit Corp. (1964), 283 Attlee, Clement, 215 ' Attorney-General and Lumley v T. S. Gill @ Son PL (1926), 314

Attorney-General (Commonwealth) v The Queen (1957), 256

386

INDEX

Attorney-General (ex relatione Lumley) and

Lumley v T. S. Gill & Son PL (1927), 314 Attorney-General (NSW) v Trethowan (1931), 58, 317

Attorney-General (SA) v Brown (1960), 2723, 364

Attorney-General

(Vic.)

v Commonwealth

(1945) (First Pharmaceutical Benefits Case), 179-80 Australian American Association, 241, 279, 342

Australian-American Co-operation Movement, 176 Australian Club (Melbourne), 54, 177

Australian Club (Sydney), 260, 316

Australian Coastal Shipping Control Board

(SCB), 128-9, 130, 131, 132, 133 Australian Communist Party v Commonwealth (1951), 219-24, 233 Australian Constitution, see Constitution (Australian)

Australian Imperial Forces (2nd AIF), 117, 136, 154, 155

Australian Institute of International Affairs, 54, 177, 226, 242, 286, 342

Australian Legation, Washington, 142 Australian Military Forces (AMF, militia),

136, 145, 154, 161 Australian National Airlines Act 1945, 180 Australian National Airways PL v Commonwealth (1945) (Airline Case), 180 Australian National Research Council, 242-3

Australian Railways Union v Vic. Railways Commissioners (1930), 84-5

Australian Woollen Mills Ltd v F. S. Walton & Co. Ltd (1937), 319

Australian Workers’ Union v Adelaide Milling Co. (1919), 29

Bacon, Francis, 87

Bailey, David (‘Harry’), and Australian News and Information Bureau, New York, 145, 159, 160, 167

Bailey, Sir Kenneth Hamilton, 72, 80, 186-7, 188, 189, 234, 238, 254, 262, 283; and Evatt, 273-4

Baillie v Federal Commissioner of Taxation

(1927), 313 Baillieu, Sir Clive (Lord), 278, 159, 241 Bajpai, Sir Girja: and Kashmir, 193, 194, 200,

201, 204, 208, 347; and Nehru, 184; OD’s friendship with, 157, 174, 181, 268 Baker, Mrs E., 3-4 Baker, Henry Seymour, 28

Balderston, John Lloyd, 150

Baldwin, Hanson, 155-6 Baldwin, Stanley (Earl), 45, 108

Bank Nationalisation Case, see Bank

v Commonwealth

of NSW

Banking Act 1945, 184, 189 Bankruptcy Act 1924, 93

Bardsley and Kreglinger & Fernau Commonwealth (1925), 44, 312 Barry, John Vincent, 182, 343, 346 Barry, William Peter, 249

Ltd v

Barton, Sir Edmund, 21, 22, 27, 29, 98 Barton, Wilfred, 35, 38, 41, 43, 80-1

Barwick, Sir Garfield Edward, OD’s view of, 227, 235, 271, 277, 351; on cases, 184 (State Banking Case), 187-9 (Bank Nation-

alisation Case), 219-24 (Communist Party

Case); as Chief Justice, 278, 285-6, 287 Bavin, Sir Thomas Rainsford, 330 Baxter v Commissioners of Taxation (NSW) (1907), 29 Beale, (Oliver) Howard, 267, 268

Beasley, John Albert, 131, 173, 340

‘Beat Hitler first’ policy, see Arcadia Accords

Beecham, Sir Thomas,

123

Bell, Alexander Foulis, 125, 127; chairs CWC,

115, 116, 117, 118, 119, 120-1; death, 124

Bennett, Henry Gordon, 7

Bennett v Murray (1940), 318

Berlin, Isaiah, 338

Berryman, Maj.-Gen. Frank, 168

Bessell v Dayman (1935), 65, 195 Beveridge, William Henry (Lord), 268 Bevin, Ernest, 200, 215, 217, 226

Bienvenu, Ronald, 133

Birmingham v Renfrew (1937), 61 Black, Hugo L., 153, 154, 242, 267-8, 279 Blackburn, Maurice McCrae, 14, 22 Bladin, Air Commodore Francis Masson, 137

Blamey, Gen. Sir Thomas Albert, 133, 120, 166, 170, 330

Boilermakers’ Case, see R v Kirby

Bolte, Henry Edward, 249, 270, 275, 280-2

Book, Clifford Henry, 227 Booth, Joseph John, 254 Bourke, Michael, 131

Bowes-Lyon, David, 159, 175, 241 Boyd, Douglas T., 116 Braham, V. G., 50 Braithwaite, Dame Lilian, 35, 41

Brame, J. F., 332 Brand, David, 275

Brand, Robert, 159 Brenac, André, 127-8 Brennan, Frank, 58

Brennan, Thomas Cornelius, 23

Bretherton v Major (1928), 314 Brett, Lt-Gen. George H., 135,

Bretton Woods conference, 174 Brigden, James Bristock, 142, 174, 184

137,

138

147-8,

150,

Ball, William Macmahon, 316

Brislan, see R v Brislan

Bank of NSW v Commonwealth (1948) (Bank Nationalisation Case), 186-90, 195, 238, 245, 248, 345

tion (BAWRA), 36, 38, 41, 45, 115, 127 British Medical Assn v Commonwealth (1949), 180

Balmford, Walter Crowther, 332

British Australian Wool Realisation

Associa-

387

INDEX Brooks, Sir Dallas, 255, 258, 259, 277; OD’s constitutional advice to, 235-8, OD, 226

249;

on

Brooksbank, Alan, 69, 77; engagement, 96, 97; and OD, 90; as OD’s associate, 55, 118, 177, 188

Brooksbank, Gertrude Amy, née Buckhurst, 30, 96

Brooksbank, Hubert Alan, 30

Brown, Alan Brock, 92, 96, 105, 110, 266 Brown, Cecil, 155

Brown, Charles Elwood, 133 Brown, Gordon, 38, 41, 312 Brownlee, John, 150, 159

Bruce, Nigel, 150

Bruce, Stanley Melbourne (Viscount), 41, 54, 80, 104, 106, 116, 123, 124, 134, 220, 269,

342 Buckley, Henry Burton, see Wrenbury, Lord

Buckmaster, Stanley Owen (Viscount), 43, 44 Builders’ Labourers’ Board, In re (1914), 308

Bundy, McGeorge, 254 Burgess, Guy, 226

Burke, Joseph, 181, 192 Burnet, Sir (Frank) Macfarlane, 121, 258, 330,

357

Burns v Ransley (1949), 191, 352

Burt, Ralph, 38

Central Traffic Committee (of SCB), 129 Central Wool Committee, 32, 33, 37-8, 42, 45, 46, 115-29 passim, 136, 137; under

OD, 128-37 passim

Chamberlain, Joseph P., 157

Chamberlain, Neville, 80, 108, 109, 114, 118, 120 Chandler, J., 3

Chapman v Hearse (1961), 324

Chapman v

Suttie (1963), 282, 366

Cheadle, Thomas S., 116

Chifley, Ben, 136, 166, 182, 183, 186-7, 191, 343, 347 Churchill, Sir Winston, 130, 134, 146, 159, 217, 241; and Australian 9th Division, 152;

dispute with Curtin, 151; Eden on, 190; on

Evatt's politicking, 170; and OD, 146, 170;

Slim on, 247

Cigamatic

matic PL

Case, see Commonwealth

City of Sandringham v Rayment (1928), 313 Clapp, Francis Boardman, 325 Clapp, Sir Harold Winthrop, 91-2, 118, 119-20, 135, 340

Butler, R. A. (‘Rab’), 268 Byrne, W. J., 224-5 Byrnes, James, 173

Clark, Sir Ernest, 97-8

Clark, Sir Kenneth, 181, 190

Clark, Lady (Mary), 97-8 Classical Association of Victoria, 9

313

Clyne, Thomas Stuart (‘Sammy’), 33, 39, 90,

Cadogan, Sir Alexander, 174, 197

96, 137, 188-9, 199-200, 222, Rich’s judgments, 185, 191-2 Cock, In re (1914), 308

Cameron, Alexander, 16, 306 Campbell, Arthur, 199, 203, 204, 218, 250

Colban, Erik, 199 Cole, Bertie Amos Neville, 116 Coleman, Patrick Leslie, 249

Campbell, Sir Ronald Hugh, 158-9, 175

Collins, José, 41

Cain, John, 236-7, 249 Cairns, Sir Hugh William Bell, 105

mittee, 286

Development

Com-

Carnahan, A. S. J., 353

Carpender, Vice-Adm. Arthur S., 168 Carrington, Lord (Peter A. R. Carington), 269

Carson, Edward Henry (Lord), 35

Coles, Bruce, 13 Colonial Laws

Validity Act 1865, 317

Colquhoun, Archibald, 246-7 Combined

Chiefs

(Washington),

of

Staff

143, 146, 147

(1960), 272, 363, 368 Commissioner of Stamp

Casablanca conference, Casey, Maie, 278

Committee of Counsel 306-7, 315

Livingston (1964), 363

Carty-Salmon, Daryl, 347

159

Casey, Richard Gardiner (Lord), 70, 123, 140, 190, 201, 214,

217,

228,

278,

286,

355; and Menzies, 177, 220, 229, 342; on OD in Washington, 143-4; and OD’s advice, 259; Slim on, 247; in Washington, 111, 125, 134, 153, 158-9

Cave, George (Viscount), 35

Centlivres, Albert van de Sandt, 227, 254 Central London Property Trust Ltd v High

Trees House Ltd (1947), 360

Committee

Commissioner for Railways (NSW) v Cardy

Carson, Norman John, 116

183,

327; and

Cock v Aitken (1911), 21-2

Campbell, Arthur Lang, 82 Australian

115, 117,

Clauson, Albert Charles (Lord), 43-4, 45 Clayton v Heffron (1960), 317 Clunies-Ross, lan, 120, 357 Clyde Engineering Co. Ltd v Cowburn (1926),

Burton, Harold H., 268 Burton, John Wear, 193-4

Canadian

v Ciga-

Commonwealth

Duties

(Qld)

v

(Victoria), 27, 50-2,

Conciliation and Arbitration

Commission, 258

Commonwealth Industrial Court, 258, 259 Commonwealth Marine Salvage Board, 133

Commonwealth v Bank of NSW (1949), 345 Commonwealth v Cigamatic PL (1962), 1856, 279-80, 365

Commonwealth

v Colonial Combing, Spin-

ning and Weaving Co. Ltd (1922), 33, 37, 310

388

INDEX

Commonwealth

v Kreglinger @ Fernau Ltd

and Bardsley (1926), 44, 312

Commonwealth-State Financial Agreement (1928), 52, 59 Commonwealth Transport Advisory Board, 130

Communist Party Case, see Australian Communist Party v Commonwealth

Communist Party Dissolution Act 1950, 219 Communist Party of Australia, 121, 183-4, 191, 219-24

Cussen, Sir Leo Finn Bernard, 13, 14, 22-3, 25, 47, 312; admired by OD, 89 D.

(A Lunatic Patient), In re (No. 2) (1926), 314

Dallos, Josef, 95, 102-3, 104, 105, 106

Danby, Betty, see Dixon, Elizabeth Brooksbank

Owen

Conciliation and Arbitration Act 1926, 53 Connor, Margaret, née Kitto, 221; on OD, 40,

Danby, Peter, 225 Danby, Russell, 288, 291 Darling, Charles John (Lord), 43 Davidson, Colin George Watt, 91 Davis, Elmer, 156

Constitution (Australian), 11, 21, 28, 29, 52-3; Chaps I, Il, Ill: 256; section 1: 256; section 44 (iv): 331; section 51 (i): 343; section 51 (v): 52, 73; section 51 (vi): 219; section 51 (xxiii): 179, 180; section 51 (xxxi): 189, 227; section 51 (xxxix): 219,

Dedman, John Johnstone, 131, 132 De Gaulle, Charles, 174 de Groot, F. G., 59 De Lisle, William Philip (Viscount), 277, 282

Compton, Fay, 35, 41 41, 55, 83-4, 109

313, 352; section 61: 219, 256; section 71:

53, 256; section 72: 53; section 74: 32-3, 35, 58, 227, 245-6; section 75 (iii): 189; section 81: 179; section 90: 274, 294, 313;

section 92: 52-3, 64-7, 79-82, 119, 180, 189-90, 195, 239, 244-5, 282, 293, 310, 313, 343, 366; section 105: 59, 60, 189;

section 109: 185, 313 Constitution (United States), 29, 254, 255,

264, 337, 351

Constitutional Convention, of 1897, 21

Contact Lens Centre, London, 102-6 passim

Cook, Sir Joseph, 41 Cook v Cook (1923), 310 Coombs, Herbert Cole, 254, 258-9 Cooper, (Alfred) Duff, 130-1 Cordier, Andrew W., 216

Cordiner, Col. D. C., 133-4 Cormack, Sir Magnus Cameron, 316 Court of Conciliation and Arbitration, 30, 32, 53, 255 Coutie, George, 6, 7, 48 Cowen, Myron, 190, 242 Cowen, Zelman, 54, 89, 182, 270, 352, 353 Craine v Soden (1916), 309 Crawford, Raymond Maxwell, 121, 330 Crimes Act 1914, 191 Cripps, Sir (Richard) Stafford, 258

Crisp & Cameron, 16

Cross, Sir Ronald Hibbert, 134, 138

Crotty, James, 83

Crowley, Leo, 173 Crutchley, Rear Adm. Victor, 156-7 Cullis v Ahern (1914), 308 Curtin, John, 128, 130, 133, 137, 145, 153, 154-5, 162, 165; messages irritate Roose-

velt, 164; and OD, 130-1, 133, 134, 137, 146,

151-2, 334;

OD's

respect

for, 183; as Opposition Leader, 123; visits USA, 163, 172-4

Denning, Alfred Thomson (Lord), Lord Simonds on, 359; OD’s criticism of, 240,

253-4, 269; on OD, 231, 291

Dennis

Hotels PL v Vic. (1960), 274,

294, 368 Derby, Earl

of (Edward

George

283,

Villiers

Stanley), 106 Devlin, Patrick Arthur (Lord), 282; on Dixon’s Court, 13 Dew, Harold Robert, 330 Dewey, Thomas, 250

Dill, Field Marshal Sir John, 165; and OD, v

Smith

Dixon, Alice Crossland, née Brooksbank, 32, 33, 34, 35, 36, 37, 54, 70, 73, 111, 155,

Copland, Douglas Berry, 332

143,

D’Emden v Pedder (1904), 29

143, 152, 154, 157, 335, 337 Director of Public Prosecutions (1960), 235, 275-6

Cooper, Lady Diana, 130

138,

Dawson, Sir Daryl Michael, 351, 353 Deakin v Webb (1904), 29 Dean, Sir Arthur, 18, 39, 47, 280

192, 218, 238, 251, 261, 268, 278, 283, 287; on Americans, 151, 156, 240, 250; character, 30-1, 264; hospitality, 84; marriage, 99, 196, 285; misunderstandings. 97, 132, 239; sponsors USS Canberra, 156;

wartime voyage to USA, 138; with Royal Empire Society, 181; death, 288

Dixon, Anne Helen Owen, 7, 83, 99, 151, 181, 238, 240, 291; OD’s affection for,

225-6, 266; OD’s letters to, 201, 206, 21415, 216-17 Dixon, Charles, 2 Dixon, Colin, 101, 215 Dixon, Edith Annie, née Owen, 2, 5, 20, 22, 30, 33, 34, 83, 101; character, 4, 7; marriage, 5-6 Dixon, Edward Owen (‘Ted’), 55, 73, 84, 99, 100-14 passim, 132, 151, 155, 177, 181, 238, 291; character, 225, 264; loses job, 278; marriage, 193, 346; problem child, 68 Dixon, Elizabeth, 225, 238, 346

Dixon, Elizabeth, née Dodgshun, 2, 7, 304 Dixon, Elizabeth Brooksbank Owen, 2, 55, 74, 99, 151, 169, 181, 220, 225, 288, 290-1

389

INDEX Dixon, Esther, 3

Dixon, Franklin Owen, 33, 37, 73, 100, 113,

151; character, 103, 224-5, 264, 353; health problems, 55, 111; keratoconus, 95-6, 99, 101-12 passim; and OD’s last days, 288, 289-90; studies, 95, 96, 177,

180-1, 224-5

16, 21, 22, 30, 33, 83; advises OD, 54; alcoholism, 4, 19, 20; as lawyer, 4, 14; partnership with J. E. Dixon, 4

Dixon, Mary, 101 Dixon, Mary Ann, 2 Dixon, Owen

Life and attitudes: ‘Albemarle’, 37; attitude to alcohol, 20; attitude to divorce, 195, 215, 234, 353; attitude to economics, 60-1, 318; attitude to human nature, 19, 27, 94, 292; attitude to Jews, 102-3, 105; attitude to music, 68; attitude to religion: 4, 55, 190,

201-2, 206, 213, 353; attitude to White Australia Policy, 161, 211, 269; awarded

GCMG, 245; awarded KCMG, 129; awarded OM, 282; awarded PC, 241; ‘Beechfield’, 37, 83, 311; cadet and marksman, 4, 8-9, 304; character as youth, 14, 15; classicist,

4, 7, 8, 9-11, 13, 20, 33, 39, 46, 55, 72, 108,

113,

190,

203,

211, 215-16, 248, 266, 285, 286, 287, 290,

292; clubs, 54, 86-7, 73, 79, 177, 121, 183, 243, 260, 286, 316; conversation, 84, 158; death, 291; death of Lady Dixon, 288; debates law students, 14; depression, 33, 90, 96, 132, 239, 311; domestic stringencies, 14;

early years, 1-15; family life and marriage,

2-9, 14, 19-21, 22, 30-1, 33, 34, 37, 55, 62, 73-4, 83-4, 95-6, 97, 99, 100-14 passim, 132, 138, 148, 151, 196, 224-6, 239, 264,

278, 285, 288; family’s background, 2-3; fatalism, company

10-11, 20, 68, 225; in last years, 290-1;

Franklin’s friendship

with Sir Girja Bajpai, 157, 174, 181, 268;

friendship with Felix Frankfurter, 141, 145, 159,

162-3,

174,

292; secretary of Law Students’ Society, 14; self-contained, 100, 103, 109, 148, 225, 264; sense of humour, 10, 26, 57-8, 96, 141,

148, 200, 226, 261-2, 265, 275; sounded

on governor-generalship, 286; view of Lord 107; view of Sir Garfield Barwick,

184, 285-7; view of Hugo Black, 154; view

Dixon, May, 2

103,

19, 37,

55, 87-8, 105, 108, 147, 190, 232, 252,

Atkin,

Dixon, Margaret, 215

100,

14,

pessimism, 19-20, 148; propriety and integrity, 72, 109, 182-3, 191-2, 238, 250, National Library, 288; scepticism,

Dixon, Joseph, 3 Dixon, Joseph William, 2, 3, 8, 9, 14-15,

83,

112-13; memory,

22, 25-6, 292; ‘Morley’, 2, 3, 4; natural dignity, 109; overseas travel, 33-46, 100-14, 139-75, 197-218, 239-42, 250-4, 267-9;

292, 358-9; refuses to bequeath papers to

Dixon, Frederick, 2, 4 Dixon, John Edward, 4, 21 Dixon, Joseph, 2, 3-4, 17, 304

74,

riding, 18, $4, 307; love of walking, 40, 41,

54, 69, 73-4, 86-7,

198,

217-8,

242,

247,

of H. V. Evatt, 58-9, 60, 62, 134, 143, 165-6, 186-9, 219-21, 248; view of Sir Samuel Griffith, 21; view of Sir William Holdsworth, 110; view of India and Pakis-

tan, 201, 206, 210-11, 214, 350-1; view of Lord Jowitt, 240-1; view of Jack Lang, 60, 182-3; view of Sir John Latham, 71,

89-91, 96-7, 98, 119, 186-9; view of Archibald MacLeish, 146, 177; view of Lord Macmillan, 107, 111; view of Sir Edward McTiernan, 58-9, 60, 119, 179, 229, 234;

view of Frederic Maugham,

107, 110-11;

view of Sir Douglas Menzies, 267; view of Lord Morton, 111; view of Sir William Owen, 123, 229, 234, 277; view of Pacific

War Council, 162, 163, 167; view of P. D. Phillips, 195, 234, 347, 355; view of Sir George Rich, 119, 189, 239-40; view of F.D. Roosevelt, 144, 167; view of Lord

Russell, 107; view of Sir Leslie Scott, 107, 111; view of Sir John Simon, 109; view of Sir

Hayden

Starke, 67ff, 88, 89, 96, 119, 189,

265; view of Lord Thankerton, 107; view of Sir William Webb, 229; view of Sir Dudley Williams, 90, 123, 189, 229; view of Sir Victor Windeyer, 267; view of Lord Wright, 107; view of United Nations, 198, 216, 229,

250, 359; at university, 9-14; ‘Yallambee’, 83-4, 291

Work, as Acting Justice, Victorian Supreme

Court: 27, 47-50; attitude to capital punishment, 48, 313; judgments, 48-9; statistical

analysis of judges, 48-9

250, 253, 270, 272, 276, 284; friendship

Work, as barrister: advises Royal Commission

284, 287, 312-13, 361; intensity of work,

vocacy, 44; coaches students, 17, 20; on Committee of Counsel, 27, 50-2; courtroom manner, 18, 23-4, 26-7; ethical standards, 50-2; extent of practice, 23, 27, 32, 45, 47; and father’s problems, 14, 20;

with Maxim Litvinov, 145, 146, 157, 163; friendship with Ida Mann, 103, 111; friendship with Viscount Gavin Simonds, 216, 240, 241, 253, 268, 282; at Hawthorn College, 6-9; health, 68, 74, 96, 97, 277, 282, 39-40, 47, 67, 148; interest in criminal insanity, 75-6, 264, 272-3, 364; interest in

technology, 91-2, 97, 112, 119-20, 138,

167-8, 326-7; internal tensions, 72, 148; love of books, 10, 38-9, 68, 69, 72, 100, 190; love of England, 101, 216, 226; love of

on the Constitution of the Commonwealth, 52-3; applies for lectureships, 18; approach to constitutional cases, 28; attitude to ad-

financial problems, 16; income, 17, 20, 45,

47, 48, 54; and law reform, 23; opinions, 51, 315; popularity and esteem, 27, 47, 48,

50, 57; at Privy Council, 32-46 passim

390

INDEX

Work, extra-judicial wartime: advises Curtin, 134; advises Menzies, 116-17, 118, 120-1, 129: assists Gen. Blamey, 120; and Central Traffic Committee, 129; chairs Allied Con-

sultative Shipping Council, 133, 135; chairs Commonwealth Marine Salvage Board, 133,

135; chairs Commonwealth Transport Ad-

visory Board, 130, 135; chairs Marine War Risks Insurance Board, 129, 135; chairs

128-9, 130, 131, 132, 133, 135, 137; C, 115-18, 119, 120, 123-4, 125-8,

137; as CWC chairman, 124, 125-8, 135; drafts war-related regulations, 116, 118,

119, 120; and SCB’s Shipping Management

Committee, 129 Work, as High Court Justice

and

Chief

Justice: 56-99, 116-22 passim, 177-95, 219-84; administrative reforms, 238, 356; advice to governors, 235-8, 249, 255, 275; appointment as Chief Justice, 229-30, 316;

appointment to High Court, 53-4; attitude

to joint judgments, 78, 238, 262-3, 293,

356; and Australian Constitution, see Constitution (Australian); behaviour towards

counsel, 27, 233, 361; collegiality, 233; and

368; Communist Party Case (1951), 221-4, 233; Dennis Hotels PL v Victoria (1960), 274, 283, 294, 368; English Scottish and

Australian Bank Ltd v Phillips (1937), 78: Essendon Corporation v Criterion Theatres Ltd (1947), 85-6, 184; Evans v Evans and Cleary (1939), 119, 321, 329-30; Farley's Case (1940), 121-2; Federal Commissioner of Taxation v Newton (1957), 278; Fed-

erated State School Teachers’ Assn of Australia v Victoria (1929), 57-8, 317; First Pharmaceutical Benefits Case (1945), 179-80; Garnishee cases (1932), 59-60, 318; Gilpin’s Case, (1935), 65-6, 67, 81, 195; Grannall v Marrickville Margarine PL (1955), 244-5; Grundt v Great Boulder

Gold Mines PL (1937), 61, 240, 3 Hallstroms’ Case (1946), 326; Hancock 1

Federal Commissioner of Taxation (1961), 278; Hartley v Walsh (1937), 82; Hospital Provident Fund PL v Victoria (1953), 245; Hughes & Vale PL v NSW (1953), 239:

Hughes & Vale Pty Ltd v NSW (No. 2) (1955), 239, 356; Isaacs v McKinnon

English judges, 109, 232, 253-4, 270; and

(1949), 191-2; James v Commonwealth (1939), 97, 98; ex parte Lowenstein (1938),

6, 227-8, 245-6, 254, 255-8,

248,

federalism,

12,

30,

84-6,

121-2,

184-

279-80,

317, 344; hierarchy of factors in reaching judgment, 44; humour in judgments, 57-8,

261-2; influence of judgments on leagues, 57, 59, 78-9, 231; influences mon law, 61, 93-4, 240, 271-2, 318, judicial life, 61, 62-3, 68, 70-1, 90,

colcom357; 181,

235, 320; leadership as Chief Justice, 231-2, 233, 263, 293, 362; legalism, 12, 97, 109, 232-3, 251-4, 268, 270, 292,

293, 294, 354; and Privy Council, 41-2, 44, 79-82, 238, 245-6, 269, 270, 273,

276-7, 364; and the ‘pure, clear stream’, 232; relations with Menzies, see Menzies, Sir Robert Gordon; routine in Sydney, 260-1; Royal Commissions, 62-3, 64, 70, 191, 243-4, 245; stature in Britain and America, 231, 232, 292-4, 354; style and

quality of judgments, 13, 49, 57-8, 75-6, 93-4, 119, 223, 292

Work,

judgments

discussed

or

analysed:

Airline Case (1945), 180; Armstrong v Victoria (No. 2) (1957), 239; AttorneyGeneral (SA) v Brown (1960), 272-3, 364; Australian Railways Union v Vic. Railways Commissioners (1930), 84-5; Bank

Nationalisation Case (1948), 186-90, 195, 238, 245, 248, 345; Birmingham v Ren-

frew

(1937),

61;

Boilermakers’

Case

(1956), 53, 93, 157, 255-8, 309; Burns v

Ransley (1949), 191, 352; Chapman v

Hearse (1961), 324; Chapman v Suttie (1963), 282, 366; Cigamatic Case (1962), 185-6, 279-80, 365; Commissioner for Railways (NSW) v Cardy (1960), 272, 363,

93; McCarter v Brodie (1950), 195, 239, 347;

McDonald

v Dennys

Lascelles

Ltd (1933), 61, 318; Marcus Clark & Co.

Ltd v Commonwealth (1952), 223, 234, 352; Matthews v Chicory Marketing Board (Vic.) (1938), 274, 364, 368; Mayfair Trading (1958), 269-70, 276-7; Metal

Trades Case (1935), 72-3, 321; Nassoor’s Case (1937), 88-9, 324; National Research Development Corp. v Commisioner of

Patents (1959), 271~-2; ex parte Nelson (No. 2) (1929), 35, 58, 227, 317; Nelungaloo PL v Commonwealth (1952), 35, 227-8

Newbon v City Mutual Life Assurance Soc.

Ltd (1935), 61, 240, 357; Noarlunga Meat Case (1956), 246; Orr Case Parker v The Queen (1963), v Milk Board (Vic.) (1949), Piggott v Piggott (1938), Brislan (1935), 52, 73; R

(1957), 262-3; 276-7; Parton 274, 364, 368; 94, 326; Rv v Connare; ex

parte Wawn (1939), 329; R v Dunbabin

(1935), 67-8; R v Martin; ex parte Wawn

(1939), (No. 2) 273; R Riverina

119; R v (1939), 93; v Sharkey Transport

Poole; ex parte Henry R v Porter (1933), 7 (1949), 191, 346, 352; Case (1937), 82, 321;

Ronpibon Tin (1949), 326; Second Uni-

form Tax Case (1957), 185-6, 265; Sodeman

v The

King

(1936),

49, 74-7,

273:

Stapleton v The Queen (1952), 235, 275-6;

State Banking Case (1947), 86, 184-6; Sun

Newspapers Ltd (1938), 93-4; Tait’s Case

(1962), 280-2, 365; Thomas v The King (1937), 93; Thomson v Palmer (1933), 61, 240, 357; Transport cases (1930s), 195,

239, 347; Transport Publishing

(1956),

391

INDEX 261-2; Trethowan's Case (1931), 58, 317; Uther’s Case (1947), 265, 279-80, 344, 362; West's Case (1937), 84-6, 184

Work, as mediatior, Kashmir: appointment,

ing

Judicial

Method’,

232,

240,

248,

251-4, 292; ‘De Facto Officers’, 88; ‘The

Development of the Law of Homicide’, 72;

‘Government

Under

the American

Con-

193-5; chooses team, 197-9; declines reappointment, 228-9, 353-4; development

stitution’, 342; ‘The Hon. Mr Justice Felix Frankfurter—a Tribute from Australia’,

cedure,

‘Jesting Pilate’, 88, 264-5; ‘The Law and the Constitution’, 67; ‘The Law and the

of solution, 201-14; geopolitics, 193, 201-4, 206, 207, 208; investigative pro201-4;

OD's

Liaquat and Nehru,

mediation

204-13;

between

report to

Security Council, 207, 212-13, 215, 216; summation of Dixon solution, 218; OD’s view of India and Pakistan, 201, 206, 210-

11, 214, 350-1; view of UN, 198, 216, 229, 250, 359; see also Abdullah, Moham-

mad; Bajpai, Sir Girja; Liaquat, Ali Khan; Nehru, Jawaharlal; Zafrullah Khan, Sir

Muhammad

Work, as Minister to the United States: and Acheson, 142, 145, 151, 157, 158-9, 16970, see also Acheson, Dean; appointment,

134-6,

167, 333-4; attitude on departure

for Washington, 138; attitude to America, 149; ‘Beat Hitler first’ policy, 152, 160, 162; communications with Canberra, 153, 155, 162, 166, 167; and Churchill, 146,

170; counters adverse view of Australia, 157; and Curtin, 130-1, 133, 134, 137,

138, 146, 151-2, Marshal Dill, 143,

166-7, 172-4; 145, 152, 154,

and 157,

169, 175, 198; diplomacy, personal style, 142, 146, 192; and Evart,

143,

166,

167,

172, 173; factual, empirical approach, 143,

148; and 172, ness, and 172, 169,

and First Secretary Watt, 142, 147-9; Frankfurter, 141, 145, 159, 162-3, 174, see also Frankfurter, Felix; frank145, 153; inspires trust, 147, 153, 165; Halifax, 145, 146, 151, 157, 159, 169, 174, 175; and Hopkins, 152, 164-5, 175; and Hull, 141, 157, 169, 172;

264; ‘International Relations’, 193, 346;

Scientific Expert’, 320-1; ‘A Legacy of Hadfield, M’Naghten and Maclean’, 76,

264, 273; ‘Marshall and the Australian Constitution’,

254;

‘The

Profession

of

Accountancy’, 275; ‘Professional Conduct’,

19, 307; ‘The Proposed

Enlargement of

Federal Power in Australia’, 158; ‘Roosevelt and Hopkins’, 193, 335, 346; ‘Science and

Judicial Proceedings’, 71, 320;

‘The Separa-

tion of Powers in the Australian Constitu-

tion’, 157; ‘Sir Roger Scatcherd’s Will in Anthony Trollope’s Doctor Thorne’, 72; ‘Sources

of Legal

Authority’, 337;

‘The

Statute of Westminster, 1931', 82-3; ‘The Survival of Causes of Action’, 345; ‘The

Teaching of Classics and the Law’, 9, 305;

‘Two Constitutions Compared’, 337; ‘Two Portraits’, 9, 270; ‘University Education in

a Scientific Civilization’, 243; ‘Upon First

Presiding as Chief Justice at Melbourne’, 28, 320; ‘Upon Retiring from the Office of Chief Justice’, 21, 48, 50, 56, 283-4, 316;

‘Upon Taking the Oath of Office as Chief Justice’, 27, 232-3 Dixon, William, 3 Dixon, William, snr, 3

Dodgshun, James, 3, 303 Douglas Aircraft Corporation,

Douglas, T. S., 332

150

and Adm. King, 143, 152, 164, 167, 169,

Douglas, William O., 153, 154, 218, 268; in Australia, 245; Dewey on, 250; Frankfurter on, 242

163-4, 165, 169, 175; speeches in America,

man Case, 74-8 Duffy, Sir Frank Gavan, 12-13, 24, 27, 29, 32, 38, 51, 57, 59; as advocate, 18; as Chief Justice, 56, 58, 61; funeral, 79; OD’s attitude to, 63-4; and retirement, 63-4, 68, 70, 318 Dugan, Maj.-Gen. Sir Winston, 176, 343

174-5; Lend-Lease, see Lend-Lease; and Litvinov, 146, 157, 163; and Macgregor, 142-3, 150-1, 158, 166, 167, 173; and Gen. Marshall, 143, 147, 152, 154-5, 165, 167; and the press, 145-6, 169; radio broadcasts, 146, 157, 160, 161, 171, 341; and Roosevelt, 141, 144, 151, 152-3, 154, 150,

151,

153,

155,

157,

158,

160,

161,

170-1, 172; and Stimson, 145; supply and

shipping, 120, 138, 143, 147, 149-50, 151, 152-3, 158, 161, 163-4, 170; UNRRA, 169-70, 171-2; US anti-colonial policy,

159, 170; view of Supreme Court justices,

153-4; visits Darwin front, 137; visits Australia and New Guinea fronts, 162-3, 166-9; and Welles, 145, 156, 157, 158, 169 Works, discussed: ‘Aspects of Australian

Federalism’, 161; ‘Causation and the Law’, 87-8; ‘The Common Law as an Ultimate Constitutional Foundation’, 264; ‘Concern-

Duffy, Charles Leonard Gavan, 14, 22, 27, 64, 70, 318; friendship with OD, 18; and Sode-

Dulles, Allen, 155, 268 Dulles, Foster, 242, 267 Dunbabin, see R v Dunbabin

Duncan and Green Star Trading Co. PL v Vizzard (1935), 195 Dunedin, Lord (Andrew Graham Murray), 35 Dunhill, Sir Thomas Peel, 104, 106 Dunn, Marcia, 96

Dunphy, Edward Arthur, 222

Dunrossil,

William

Shepherd

(Viscount), 273, 277, 364 Dunstan, Sir Albert Arthur, 70

Dunford, Cdre John Walter, 132

Morrison

392

INDEX

Federal Commissioner of Taxation v Hyland

Early, Stephen, 144

Eden, Sir Anthony, 163, 190 Edgar v Freeman (1915), 308

Edwards, Dunlop & Co. Ltd v Harvey (1927), 314

Eggleston, Sir Frederic William, 48, 145, 146, 162, 175

(1926), 313 Federal Commissioner of Taxation v Newton (1957), 278

Federal Commissioner of Taxation v Official Liquidator 121-2

of E.

O.

Farley

Ltd

(1940),

Eggleston, Richard Moulton, 341 Eisenhower, Dwight D., 245, 267 Elizabeth, Queen Mother, 241, 266-7 Elizabeth II, Queen, 241, 242, 282

Federal Commissioner of Taxation v Weatherly

Emmott, Alfred (Lord), 22

Federated Amalgamated Government Railway

(1927), 313 federalism, 12, 29-30, 32-3, 35, 84-6, 121-2, 184-6, 227-8, 246, 254, 255-6, 279-80, 317, 344

Ellery, Reginald Spencer, 78

Engineers’ Case, see Amalgamated Society of Engineers v Adelaide Steamship Co. Ltd English Scottish and Australian Bank Ltd v Phillips (1937), 78

English Speaking Union, 181, 190-1, 239, 241, 242, 286, 342 Essendon, Lord (Frederick William Lewis), 124 Essendon

Corp.

v Criterion

Theatres

(1947), 85-6, 184

Evans v Evans and Cleary (1939),

Ltd

119, 321,

329-30 Evatt, Herbert Vere, 49, 61, 63, 64, 68, 72, 73, 88, 180, 182, 273-4, 347, 364; and ‘ANZAC’

Court,

pact, 172; appointment to High

58;

attitude

to

servants,

165;

Attorney-General, 186-90 (Bank National-

isation Case), 191, 343; books by, 67, 80; wants

Chief

Justiceship,

70;

Churchill's

view of, 170; and Communist Party Case,

219-21; entry to politics, 123, 124; favours ‘total conscription’, 121; Gaitskell on, 269;

impression of in Washington, 143, 153, 164, 165-6, 200; judgments, 59 (first Garnishee case), 62, 64-5 (section 92), 67, 74ff (Sodeman Case), 93, 119, 122 (Farley’s Case), 123; Minister for External Affairs, 130, 131, 132, 134, 144, 146, 162, 169, 335; and OD's appointment to Washington,

135, 136, 138, 140, 143-4; OD’s view of,

58-9, 60, 62, 134, 143, 165-6, 186-9, 21921, 248; and Petrov Commission, 245; relations with colleagues, 58-9, 62, 66, 67, 69, 70; seeks to join in OD’s judgments, 78; Slim on, 247; undermines OD, 143, 166, 167,

172, 173; welcomes the Dixons home, 175 Evatt, Mary Alice, 156 Evershed,

(Francis)

Raymond

233, 240, 241, 254, 268

(Lord),

227,

Fadden, Arthur William, 129, 137 Fairbairn, James Valentine, 124

Farley’s Case, see Federal Commissioner of Taxation v Official Liquidator of E. O. Farley Lid Federal Arbitration Court, see Court of

Conciliation and Arbitration Federal Bar Association (US), 158

Federal Commissioner of Taxation v Clarke

(1927), 313

and Tramway Service Assn v NSW Railway Traffic Employees Assn (1906), 29

Federated Engine Drivers’ and Firemen’s Assn

of Australasia v Colonial Sugar Refining Co, Ltd (1916), 309

Federated Engine Drivers’ and Firemen’s Assn

v Adelaide Chemical etc. Co. Ltd (1920), 310

Federated

State School

Teachers’

Assn

of

Australia v Victoria (1929), 57-8, 317 Felton Bequest Committee, 177, 181, 190,

192-3, 242; chaired by OD, 254, 286,

360

Financial Agreement Enforcement

Act

Finlay, Sir Charles, 110, 111 Finnis, J. M., 256 First Pharmaceutical Benefits

Case,

59-60

1932,

see

Attorney-General (Vic.) v Commonwealth First Uniform Tax Case, see South Australia v Commonwealth Fitts, Clive Hamilton, 259, 355, 361 Fleming, Allan Percy, 288 Flood, Daniel, 353

Florey, Sir Howard Walter, 254

Forde, Francis Michael, 166

Francis, Carrie, 101, 103 Frankfurter, Felix, 107, 157, 254, 287; on ‘ANZAC’ pact, 172; assessment of OD, 232, 354; and Boilermakers’ Case, 256-7; character, 141-2; decline as judge, 200; on Evatt, 162-3; on Kashmir report, 216; OD's

friendship with, 141, 145, 159, 162-3, 174, 198, 217-18, 242, 247, 250, 253, 270, 272, 276, 284; suffers stroke, 279; on Supreme Court justices, 242, 267-8

Franks, Sir Oliver, 149

Fraser, James Mackintosh,

131

Friedmann, Wolfgang Gaston, 182

Fry, Sir Edward, 87 Fry v Byrne (1917), 309

Fullagar, Sir Wilfred Kelsham,

68,

244, 276, 277, 347; classicist,

182,

192,

13, 230;

judgments, 195 (McCarter v Brodie), 221-2 (Communist Party Case), 239 (Hughes &

Vale 1953), 255 (Boilermakers’ Case), 274,

283

(Dennis Hotels); OD’s

admiration

for,

89; OD’s advice to, 70; style and quality of

judgments, 13, 222-3, 352

Fuller, Maj.-Gen. Horace, 168

°

393

INDEX Fuller’s Theatre and Vaudeville Co. Ltd v Rofe (1923), 33, 36

Gain, A. C., 92

Gairdner, Sir Charles Henry, 255, 275

Gaitskell, Hugh Todd Naylor, 268; on Evatt, 269

Gale v Gale (1914), 308 Garnishee Cases, see New

South

Commonwealth (Nos 1, 3) Galligan, Brian, 180 Game, Sir Philip Woolcott, 106 Garran, Sir Robert Randolph, 54, 84 Gardner, Mark, 95

Wales

v

Hailsham, Lord (Douglas McGarel Hogg), 45,

79, 80

Haldane, Richard Burdon (Viscount), 35, 42

Halifax, Lord (Edward Frederick Lindley Wood), 109, 173; attitude to America, 149, 336; and OD, 144, 145, 146, 151, 157, 159, 169, 172, 174, 175, 241

Hall, Hessell Duncan, 153

Halliday, John Howell, 234-5 Hallstroms PL v Federal Commissioner Taxation (1946), 326 Ham, Wilbur Lincoln, 51, 52, 71, 91

Hancock, William Keith, 43 Hancock v Federal Commissioner of Taxation (1961), 278

Garside, James Uriah, 155

Hand, Augustus, 268

Gandhi, Indira, 205 Gielgud, John, 106

Hanlon, In re (1913), 308

Gavan Duffy, see Duffy

Hand, Learned, 268

Gill v City of Prabran (1926), 314

Gillard, Oliver, 263

Gilpin, see O. Gilpin v Commissioner for

Road Transport and Tramways (NSW) Glasgow, Maj.-Gen. Sir William, 170

Glenn v Federal Commissioner of Land Tax (1915), 309

Gloucester, Henry William Frederick Albert, Duke of, 106 Goetz, Dr, 95 Golden

113

Gate International

Exposition (1939),

Goodhart, Arthur Lehman, 105 Gordon, Sir Thomas, 133, 175, 333

Gowans, Urban Gregory, 280

Gowrie, Sir Alexander Gore Arkwright HoreRuthven, Earl, 124, 130, 138 Gowrie, Lady (Zara Eileen), 269

Gramophone Co. Ltd v Leo Feist Inc. (1928),

313

Grannall v Marrickville Margarine PL (1955), 244-5 Gratwick v Johnson (1945), 178

Green v Worley (1915), 309

Greene, Wilfrid Arthur, 111

Greenwood, Ivor John, 196, 228, 347 Griffith, Sir Samuel Walker, 21, 27, 29 Grimwade, (Wilfrid) Russell, 176-7, 254 v Great

Boulder

Gold

Mines

PL

(1937), 61, 240, 357 Guadalcanal, 157, 164 Guest, James Vincent Chester, 11, 269, 313, 355 Guilfoyle v Bean and Mackerras (1926), 314 Gullett, Sir Henry Somer, 124 Gunson, Grattan, 25 Gurmani, Nawab, 201, 214

Ha v NSW (1997), 274, 368 Hadow, (Robert?), 108

Harkness Fund, 242, 286 Harrison, Maj.-Gen. Desmond, Harrison, Sir Eric John, 268

196

Hart, John Stephen, 30

Hartley v Walsh (1937), 82

Hasluck, Sir Paul, 55, 157-8 Hattori, Tsuneo, 124, 131

Hawke, Albert R. G., 275 Hawke, Hazel, 258 Hawke, Robert J., 258 Hawthorn College, 6-9

Healy, James (‘Big Jim’), 133 Hearn, William Edward, 4 Hele, Ivor, 246 Henderson, Candlish, 110

Herald @

Weekly

(1928), 313

Times

Ltd v McGregor

Herbert, Sir Alan Patrick, 268 Herring,

Lt-Gen.

Sir Edmund

Francis,

26,

117, 120, 155, 176, 227, 288; and OD in

Darwin, 137; and OD on New Guinea fronts, 168-9; and Victorian constitutional crisis of 1952, 236-7

Hewart,

Gregory, Jesse, 196

Griswold, Erwin N., 227, 254, 270 Gromyko, Andrei, 171

Hanlon, John James, Application of (1913), 308 Hardie, John Leslie, 6

Hawthorn Grammar School, 4

Gorman, Brig. Eugene, 68, 134, 313, 343

Grundt

of

Gordon

(Viscount),

104

Hewel, Walter, 104 Heydon, Peter Richard, 142, 155 Hickerson, John D., 193, 198, 217 Higgins, Henry Bournes, 13, 21, 27, 29, 53, 54 Higgins, Sir John Michael, 36, 45, 239; bequests to OD and family, 83; confidant to OD, 33, 54, 61, 70; death, 90 High Court of Australia: under Dixon, 229-

84, 293; under Gavan Duffy, 61-71;

under

Griffith, 21, 27, 29; under Isaacs, 58-9, 61; under Knox, 29-30, 56-8; under Latham, 71-99,

115-39

passim,

176-96,

219-29,

293; see also individual justices; federalism; Constitution (Australian)

High Court Procedure Act 1903, 281

High Trees Case, see Central London Property Trust Ltd y High Trees House Ltd

394

INDEX

Higinbotham, George, 17

Isaacs, Rufus Daniel, 22, 35, 308 Isaacs v McKinnon (1949), 191-2

Hilbery, Sir (George) Malcolm, 104

Hinchcliff, Andrew, 5 Hinchcliff, John, 5

Hitler, Adolf, 104, 107, 114, 145 Hoare, Sir Samuel John Gurney Templewood), 104

(Viscount

Hodges, Gen. Courtney H., 204 Hodges, Sir Henry Edward Agincourt, 24, 25,

26 Hodgson, Lt-Col. William Roy, 136, 138, 167 Hoggett v Hoggett (1926), 314

Holdsworth, Sir William Searle, 43, 105, 110, 282 Holland v Wiltshire (1954), 318 Hollond, Henry Arthur, 110 Hollway, Thomas Tuke, 236-8

Holmes, Oliver Wendell, 107, 154, 268 Holmes a Court, Alan Worsley, 92 Holt, W., 291

Hood, Sir Joseph Henry, 13

Hopkins, Harry, 152, 153, 164-5, 169, 175

Hospital Provident Fund PL v 245 Howard, Colin, 293-4

Vic. (1953),

196

James, Frederick Alexander, 79

James, Sir Walter Hartwell, 69, 311 James, Sir William Milbourne, 232

James v Commonwealth James v Commonwealth

(1935), 79, 320 (1936), 78-9, 80-2

James v Commonwealth (1939), 97, 98 James v Cowan (1932), 82 James v SA (1927), 313 Jamieson, Stewart, 250

Jobbins, G. G., 86-7

John Cooke & Co. PL v Commonwealth (1924), 38-45 John Cooke & Co. PL and Field v Common(1922), 37-8

John Fairfax & Sons Ltd and Smith's New’s-

papers Ltd v NSW (1927), 313 Johnson, Nelson Trusler, 136, 137, 167

Jobnson v Agnew (1980), 318

Joint Chiefs of Staff (Washington), 147

Howard, Lady Mary, 215 Howat, William, 14-15 Howland Prize (Yale), 247, 250-4

Jones, Air Vice-Marshal George, 340

Hoysted v Federal Commissioner of Taxation

(1920, 1921, 1923, 1926), 44, 45

Jordan, Sir Frederick Richard, 69, 90, 331

Jowett, Edmund, 55 Jowitt, William Allen (Lord), 227, 240-1

Judiciary and Navigation Acts, In re (1921),

Hudson, Edward Herbert, 188 Hughes, William Morris, 22, 36

Hughes & Vale PL v NSW (1953), 239 Hughes

&

Vale PL v NSW

(No.

1) (1954),

Hughes

&

Vale PL v NSW

(No.

2) (1955),

239, 356 Hull, Cordell, 141, 146, 173, 190; and OD, 141, 143-4, 157, 169, 172, 174, 338 Hull, Mrs Cordell, 151 Hulme, S. E. K., 282 Hunter, Donald, 101-2, 103, 106

Hutton, Maj.-Gen. Sir Edward, 9 Huxley, Julian, 242

Tan Clunies Ross Memorial Foundation, 286-7 Imperial Wool Purchase Scheme, 33, 37

Income Tax and Social Services Contribution Assessment Act 1936-1956, 265, 278

Innes, Reginald Heath Long, 91 International Commission of Jurists, 262, 270, 287 Inverforth, Lord (Andrew Weir, Baron Inver-

forth), 36 Irvine, Sir William Hill, 49, 50 Irving, Ethel, 35

Irving, Martin Howy, 4 Isaacs, Sir Isaac Alfred, 21, 27, 29, 51, 58, 61;

and Engineers’ Case judgment, 254; regard for OD, 48, 56, 57, 90

jackson, Robert Gillman Allen,

Jackson, Robert H., 145, 155, 242

wealth and the Central Wool Committee

Hood, J. D., 148

239

i W. & J. E. Dixon, 4

310 Judiciary (Diplomatic 1942, 135

Representation)

Act

Kashmir, 241; OD's mediation, 127, 193-5, 196-218, 228-9; OD’s peace plan, 201-13;

political situation, 201ff Kasumu v Baba-Egbe (1956), 270

Kawai, Tatsuo, 124, 131 Keane, Richard Valentine, 131 Kemp, Suzanne, 260

Kennedy, John Fitzgerald, 278, 279 Kenney, Lt-Gen. George C., 161, 162, 163-4,

336

Kent, George Edward Alexander Edmund, Duke of, 106 keratoconus (conical cornea), 95, 101-12 passim Kerensky, Alexander Fedorovich, 159

Kerr, Sir John Robert, 80 Kerrison v Lavell (1915), 24-5

Kerwin, Patrick, 254

Keynes, John Maynard, 60-1, 318

Kikuchi, Shird, 124 Kilmuir, Lord (David Patrick Maxwell Fyfe), 269, 276 King, Adm. Ernest J., 173; and Evatt, 164; Midway battle briefing, 143; and OD, 152, 164, 167, 169, 174-S King, William Mackenzie, 157

395

INDEX

Lewis,

Wilmarth

S. (‘Lefty’),

141-2,

247,

Kinnear, John, 87 Kisch, Egon Erwin, 62, 63, 67 Kitto, Sir Frank Walters, 40, 188, 192, 234, 235, 244, 248, 268; on Barwick, 287; judg-

250-1, 334-5 Lewis, Sir Wilmott, 159 Liaquat Ali Khan, 196, 198, 199, 204, 205-

(Hughes & Vale 1953), 255 (Boilermakers’ Case); and OD, 263, 286, 294; OD's admiration for, 199 Kitto, Margaret, see Connor, Margaret

Lindsay, (Ernest) Daryl, 47, 177-8, 181, 266 Lindsay, Joan, 47 Lippmann, Walter, 145, 159, 169, 174, 248,

ments, 221-2 (Communist Party Case), 239

Knight-Bruce, Sir James, 232

Knowles, Sir George Shaw, 118, 331 Knox, Sir Adrian, 32, 38, 51, 56, 58, 322 Knox, Col. Franklin, 156-7, 160, 173 Kokoda Trail, 155, 157

Dixon, 156

Lloyd George, David, 22, 36, 308

Lloyd-Jacob, George, 271-2 Lockheed Aircraft Corporation, 149-50 Lockwood, Rupert, 244

LaGuardia, Fiorello, 170, 174

Sir (John) Gilbert, 270

Lodge v National Union Investment Co. Ltd

Lamb, Alastair, 216

Lang, John Thomas (Jack), 58, 59-60, 106,

182-.

Langman v Handover (1929), 363 Latham, Lady (Eleanor Mary), 130

Latham, Sir John Greig, 17, 18, 39, 49, 50, 59, 64, 72, 78, 82, 88, 93, 100, 107, 109, 110, 118, 120, 124, 131, 176, 177, 178, 183,

190, 199, 208, 211, 216, 283, 288, 293, 345; appointment as Chief Justice, 61, 63, 69-70, 71, 259, 318-19; appointment as

Minister to Tokyo, 111, 122-3; as AttorneyGeneral, 53, 256, 316; judgments, 73 (R v Brislan), 74ff (Sodeman Case), 90, 94, 119, 186-9 (Bank Nationalisation Case), 191-2 (Isaacs v McKinnon), 221-3, 346 (R v Sharkey); OD’s view of, 71, 89-91, 96-7,

98, 119, 186-9; offers OD seat on High Court, 53-4; personality,

37, 89-91,

96;

resignation, 224, 228, 352; on Rich, 258 Latham, Richard Thomas Edwin (Dick), 103-4

Laurie, E. A. H., 221 Laval, Pierre, 163 Law, Andrew Bonar, 36, 45

Law Council of Australia, 72, 82-3, 227, 270, 277 Law Institute of Victoria, 23 Law Students’ Society (Melbourne), 12, 14,

87-8 Lawrence, Geoffrey, 43, 44 Lawrence, Marjorie, 155 Lawson, George, 131

Leary, Vice-Adm. Herbert F., 137 LeCompte, Karl Miles, 353 268, 270, 292, 293, 294, 354

251-4,

Lehman, Herbert H., 159, 174 Lend-Lease (and ‘reverse Lend-Lease’), 136-7, 145, 147, 150-1

Leverriet, Frank, 33

(1907), 270, 363

London Graving Dock Co. Ltd v Horton (1951), 277 Long, Huey, 138 Long, Cdr Rupert Basil Michel, 132, 135 Loudon, Alexander, 144

Lourié, Sylvain, 199, 203, 204

Lowe, Sir Charles John, 26, 50, 77, 176, 182, 191, 227, 314, 322 Lowenstein, see R v Federal Court of Bankruptcy; ex parte Lowenstein

Lyons, Joseph Aloysius, 59, 61, 70, 98, 220, 342

McArthur, see W. & A. McArthur v Qld MacArthur, Gen. Douglas, 186-7; and OD,

136,

with US Navy,

143,

137,

144, 154,

166; tensions

160; view of other allied

fronts, 166; White House view (Hopkins), 164 McArthur, William Gilbert Stewart, 49

McBride, Philip Albert Martin, 116, 120, 121, 125, 331 McCarter v Brodie (1950), 195, 239, 248, 347

McCarthy, Edwin, 144, 150, 158, 241-2, 340 McCarthy, Sen. Joseph, 245 MacDonald, (James) Ramsay, 41

McDonald, John Gladstone, 235-7

McDonald v Dennys Lascelles Ltd (1933), 61, 318 McDonnell, Aeneas, 192-3

McElroy, Neil, 268 McEwen, John, 286

Laycock, Frederick C., 115

Lee, Robert Warden, 105, 110 legalism, Dixonian, 97, 109, 232-3,

338

Little, Sir Frank, 311 Litvinov, Maxim, 190, 145, 146, 157, 163, 171 Litvinov, Mme, friendship towards Lady

Korda, Sir Alexander, 150

Laithwaite,

14 Lie, Trygve, 199, 200, 216

Lewis, Essington, 91, 118, 135, 166, 174

Macewen, Sir William, 39, 40 Macfarlan, Ian, 63 Macfarlan, Sir James Ross, 49, 103, 104

McGregor, H. W., 126

McGregor, James Robert, 116, 117, 126, 127 Macgregor, Lewis Richard: Australian Trade Commissioner,

North

America,

112,

125;

as Director, War Supplies Procurement Mis-

sion, Washington,

142-3,

166, 340, 341;

and OD, 142-3, 150-1, 158, 166, 167

396

INDEX

McIntyre, J. G., 110 McIntyre, Laurence (‘Jim’), 155 Mackay, John, 38

Maugham, Frederic Herbert 106, 107, 110-11 Maugham, Somerset, 105 Maxwell, Allan Victor, 91

Mackay, Ronald (‘Kim’), 92

McKell, William John, 183, 223, 343

Mackey, Sir John Emanuel, 19 McLachlan, Angus Henry, 113-14

Medley, John Dudley Gibbs, 182

Meeson, John T., 4

Maclean, Donald, 226 MacLeish, Archibald, 146, 177, 184

Melba, Dame Nellie, 21, 322

Melbourne Club, 54, 183, 286, 243 Melbourne

McLennan, Ian Munro, 278 McMaster, Donald, 22 Macmillan, Harold, 266, 268

M’Naghten’s Case (1843), 76 McNaughton, Gen. Andrew G. L., 194, 199

McNeill, see R v McNeill Macready, Gordon, 158

McTiernan, Sir Edward Aloysius, 57, 91, 93,

195, 234, 244, 263, 286, 320, 351, 355;

appointment to High Court, 58; and colleagues, 58-9, 67, 69, 70, 72, 190, 345; judgments, 59 (first Garnishee case), 62, 68,

94, 119, 179 (First Pharmaceutical Benefits Case), 189 (Bank Nationalisation Case), 222 (Communist Party Case), 239 (Hughes &

Vale 1953), 255 (Boilermakers’ Case), 261 (Transport Publishing); and OD, 66, 78; OD’s view of, 58-9, 60, 119, 179, 229, 234

McWhae, Sir John, 34, 41, 46

Madden, Sir John, 13, 21, 25 Maeder v Busch (1938), 271 Maitland, Frederic, 251 Major v Bretherton (1928), 314

Hancock (1927), 313

Melbourne Philharmonic Society, 90, 95, 98, 123, 242

Melville, Leslie Galfreid, 116, 254, 255 Menhennitt, C. 1., 347 Menon, Krishna, 217 Mental Health Act 1959 (Vic.), 280

Mental Hygiene Act 1958 (Vic.), 280

Menuhin, Yehudi, 68 Menzies, Sir Douglas Ian, 230, 234, 235, 278,

282, 286, 288; appointment to High Court,

267; on OD, 231, 263; OD’s view of, 267;

and Privy Council, 245

Menzies, Frank Gladstone, 268, 288, 289, 291 Menzies, Heather, 250 Menzies, Dame Pattie, 121, 130, 176, 250, 283, 343-4

Menzies, Sir Robert Gordon, 9, 12, 33, 50, 51, 52, 91, 109, 114, 126, 134, 137, 176, 180, 189, 218, 242, 254, 325, 331; advice from

103,

OD, postwar, 183, 190-1, 194, 198, 223-4,

105,

Marbury v Madison (1803), 351

Marconi case, 22, 308 Marcus Clark & Co, Ltd v Commonwealth (1952), 223, 234, 352 Marett, Robert, 163

Marine War Risks Insurance Board, 129

Maritime Industry Commission, 132-3 Maritime Transport Council, 132 Marshall, Gen. George C., 144, 152, 154, on Australian troops, 155; distrust of tralia, 147; and Evatt, 153, 164; and 143, 147, 152, 154, 165, 167, 169, Martin, Clarence Edward, 227 Martin, (Fred) Russell (Beauchamp), 34, 38-45 passim, 52, 77, 107 Mary, Queen, 241

Matear v Lyne (1918), 26

Melbourne Harbour Trust Commissioners v

of, 131; entry to federal politics, 61; and

Malleson, Miles, 35 Mann, Alan Harbury, 353 Mann, Sir Frederick Wollaston, 29, 49, 50

198, 241

v Commonwealth

OD, 53, 316; and Casey, 177, 220, 229, 342; cautious on call-up, 117; Curtin’s view

Makin, Norman John Oswald, 217 101-2,

Corporation

(1947), 86, 184-6

Macmillan, Hugh Pattison (Lord), 104, 105, 107, 111 M’Naghten rules, 76-8, 264, 272-3, 364

95,

105,

Mayfair Trading Co. PL v Dreyer (1958), 269-70, 276-7 Medico-Legal Society of Victoria, 71

Mackenzie, Seaforth Simpson, 89 McKenzie v McDonald (1927), 49, 314

Mann, Ida Caroline, 106, 111

(Viscount),

173; AusOD, 175,

27, 33,

Matthews v Chicory Marketing Board (Vic.) (1938), 274, 364, 368

229, 234, 238, 243-4, 245-6, 249-50, 278, 282-4, 287, 288, 289-90, 354, and OD, pre-war, 16, 24, 26-7, 30, 64, 70, 71-2, 96, 98, 308-9; and OD, time, 116-17, 118, 119, 120-1, 123,

258, 355; 62-3, war124,

125, 128-9, 130, 138, 177; OD's interpre-

tation of section 92 at Privy Council, 80-1;

OD’s pupil, 28-9; and OD’s successor, 2

283, 285-6; political fall in 1941,

129-30;

public servants’ view of, 121; and selection

of High Court judges, 229-30, 234; Slim on, 247; and Suez, 259; urges OD to accept

Washington post, 135; view of Chifley, 183;

view of self in 1947, 183; on war production capacity, 121

Merralls, James Donald, Gorman,

313; on OD,

288; on

27, 48,

Eugene

101, 232,

276, 312, 313, 317, 341, 345, 355, 356 Merriman, Frank Boyd (Lord), 107

Metal Trades Employers’ Assn v Amalgamated

Engineering Union (1935), 72-3, 321

Meyer, Eugene, 159

Milford, Maj.-Gen. Edward, 168-9

Minister for Trading Concerns (WA) v Amalgamated Society of Engineers (1923), 33, 34-5

397

INDEX

O. Gilpin Ltd v Commissioner for Road

Mitchell, E. M., 33 Mitchell, Sir Edward, 21-2, 33, 37 Mitsubishi Shoji, 125 Molotov, V. M., 145

Transport and Tramways 65-6, 67, 81, 195

Moore, Arthur Claude, 340

Moore, Sir William Harrison, 11-12, 13, 67,

with

Peden,

248; OD’s

tribute to, 270, 306 Morris, Sir John Newman, 6; as OD's physician, 74, 96, 97, 361 Morrow, Chester Earl, 353 Morshead, Lt-Gen. Sir Leslie James, 168

Morton, Fergus Dunlop (Lord), 44, 78, 111

Moule, William Henry, 24 Moulton, Hugh Fletcher, 38 Mountbatten, Louis (Lord), 217, 258, 269 Munro Ferguson, Sir Ronald Craufurd, Lord Novar, 34 Murai, Kuramatsu, 69

Orr v The University of Tasmania (1957), 260, 262 O'Sullivan, Maureen, 150 O'Sullivan v Noarlunga Meat Ltd (No. 2) (1956), 246 Owen, (Arthur) David (Kemp), 190

Owen Dixon Chambers (Melbourne), 247, 278

121, 127, 128, 130, 131, 132, 133, 332 Murray, (George) Gilbert (Aimé), 57, 215-16

Pacific War Council, 141, 144, 151-2, 154,

Nash, Walter, 144, 151

Nasser, Gamal Abdul, 259 Nassoor v Nette (1937), 88-9, 324 Nation, Capt. William, 138 National Research Development Corp. Commissioner of Patents (1959), 271 National Security Act 1939-1943, 223

156; OD's view of, 162, 163, 167

Page, Sir Earle Christmas

126, 130, 151, 331

v

National Security (Wool) Regulations, 116

Nehru, Jawaharlal, 184, 193, 196, 198, 202,

228; character, 200-1; and OD, 200, 204, 205-14, 217; view of OD, 217, 241

Nelson, ex parte (No. 2) (1929), 35, 58, 227, 317 Nelungaloo PL v Commonwealth (1952), 35,

227-8

Newbon v City Mutual Life Assurance Soc.

Ltd (1935), 61, 240, 357 New South Wales v Commonwealth (No. 1) (1932), 59-60 New South Wales v Commonwealth (No. 3)

(1932), 318 New York World’s Fair (1939), 113 Nicholas, Harold Sprent, 39, 52 Niemoller, Martin, 192 Nimitz, Adm. Chester W., 139, 194, 197-8 see

O'Sullivan

Normand, Wilfrid Guild (Lord), 110, 231-2

Grafton, 71,

124,

Palmer, Ely Eliot, 138 Pandit, Mme, 268

Parke, Sir James (Baron Wensleydale), 109, 232 Parker, Hubert Lister (Lord), 277

Parker v The Queen (1963), 276-7

Parsons, Sir John Herbert, 101, 103

Parton v Milk Board (Vic.) (1949), 274, 364, 368 Patents Act 1952-1955, 271

Pearce, Edward Holroyd (Lord), 270, 273, 274 Pearson, Peter, 289, 290

Peden, Sir John Beverley, 52, 248 Perkins, Milo, 159

Peterswald v Bartley (1904), 274 Petrov, Vladimir, 243-4, 245

Pharmaceutical Benefits Act 1944, 179, 180 Phillips, P. D., 188; OD’s advice to, 248-9; on OD’s style, 352; OD’s view of, 195, 234,

347, 355; personality, 189

Philp, Sir Roslyn Foster Bowie, 277 Piggott v Piggott (1938), 94, 326

v

Noon, Sir Feroze, 201 Noon, Lady, 201

Norris, Sir John, 9 Novar, Lord, see Munro Ferguson, Sir Ronald

Craufurd

Orr, Sydney Sparkes, 260

appointment to High Court, 277; as chairman, CWC, 137; chairman, Petrov Commission, 244; OD’s view of, 123, 229, 234, 277

Murphy, James Francis (Frank), 116, 119,

Noarlunga Meat Ltd

Oliphant, Marc, 254

Owen, Sir William Francis Langer, 138, 355;

Murphy, Charles Robert, 38 Murphy, Frank (Mr Justice), 153

Case,

Oldham, John Egerton, 55, 286

Owen, Elizabeth, née Rodley, 4, 5

Murdoch, Sir Keith, 174, 176, 177, 342

Meat

145-6, 156 Officer, (Frank) Keith, 112

Owen, Mary, née Parry, 5

Murdoch, Walter, 90

Noarlunga

Odlum, Maj.-Gen. Victor, 134 Office of War Information (Washington),

Owen, Edward, 4, 5 Owen, Edward, jr, 5

Murdoch, Lady (Elisabeth), 176

Nixon, Richard M., 242

(1935),

O’Connor, Richard Edward, 21, 29

Monash, Sir John, 54

68; contrasted

(NSW)

Pigott, Gerald, 18-19

Plimsoll, James, 197, 217

Pollock, Sir Ernest Murray (Viscount), 36 Pollock, Sir Frederick, 154 Ponsford, Frank, 6-7

Porter, see R v Porter Poulenc, Francis, 268 Powell, (John) Enoch, 92, 96, 105 Powers, Sir Charles, 27, 29, 32, 56, 58

398

INDEX

Prasad, Rajendra, 200 Privy Council, 32-46 passim, 47, 54, 75, 190, 227, 274, 282, 364; and Africans, 273, 364; and Australian federalism, 29, 30,

108, 245-6, 256-7; OD’s assessment of, 41-2, 79-82, 238, 245-6, 269, 276-7; and section 92, 79-82

Purves, James Liddell, 18

R v Brislan; ex parte Williams (1935), 52, 73 Court of Conciliation

and Arbitration and Australian Journalists’ Assn; ex parte Daily News (1919), 28-9, 309-10

R v Connare; ex parte Wawn (1939), 329

R v Dunbabin; ex parte Williams (1935), 67-8 R v Faulkner (1877), 276 R v Federal Court of Bankruptcy; ex parte Lowenstein (1938), 93 R v Foster (1949), 346 R v Industrial Registrar; ex parte Sulphide Corp. Ltd (1918), 309 R v Kirby; ex parte Boilermakers’ Society of Australia (1956), 53, 93, 157, 255-8, 309 R v McNeill (1922), 33, 34, 35, 311

R R R R

v v v v

1935); OD writes judgments etc. for him, 56, 57, 68, 73, 93-4, 116, 119, 320, 32 OD’s influence on, 78; OD’s view of, 119, 189, 239-40

Riverina Transport PL v Vic. (1937), 82, 321 Rivett, David, 54

Roberts, Stephen Henry, 92

Robinson, Sir Arthur, 98, 118-19 Robinson, Lady (Beverley), 98

Quayle, Anthony, 192 R v Commonwealth

McKinnon), 319 (James v Commonwealth

Martin; ex parte Wawn (1939), 119 Poole; ex parte Henry (No. 2) (1939), 93 Porter (1933), 76, 273 Sharkey (1949), 191, 346, 352

R v Sodeman (1936), 74-8 R v Turner; ex parte Marine Board of Hobart. Tasmania v Commonwealth (1927), 313

Robinson, William Sydney, 98 Roche, Alexander Adair (Lord), Rockefeller, Nelson A., 172

104

Rodley, Thomas, 4 Rogers, William P., 268 Romer, Mark Lemon

(Lord), 106

Ronpibon Tin N.L. and Tongkah Compound

N.L. v Federal Commissioner of Taxation

(1949), 326 Roosevelt, Eleanor, 151, 169, 173

Roosevelt, Elliott, 153

Roosevelt, Franklin Delano, 146, 159, 172, 278-9; on Australian troops, 154; Beasley, 173; ‘Beat Hitler first’ policy, and Churchill-Curtin dispute, 151;

171, and 163; and

Curtin, 163, 164, 173; on Evatt, 173; and OD, 141, 151, 152-3, 154, 156, 163-4, 165, 169, 175; OD’s view of, 144, 167

Rose, James A., 8 Rosenthal, Alvord, 158 Ross, Jobn Alexander, Application of (1913),

308 Roughley v NSW (1928), 195 Rowe, Capt. Gordon, 139

Rowe, In re (1926), 314

Rowell, Maj.-Gen. Sydney Fairbairn, 132, 155

R v Vizzard; ex parte Hill (1933), 65, 82, 195, 323

Rowlands, John, see Stanley, Henry Morton Royal Commission Act 1902, 244; 1954, 244

Radcliffe, Cyril John (Lord), 269-70

Commonwealth, 52-3, 256 Royal Commissions, 52-3, 62-3, 64, 70, 191, 243-4, 245

R v Worthington (1921), 310

Radcliffe, G. R. Y., 110 Radio Corp. v Commonwealth (1938), 90

Railway Servants’ Case, see Federated Amal-

gamated Government Railway etc. Assn v

NSW Railway Traffic Employees Assn

Ramage, B. B., In re (1913), 308 Ransford, Vernon, 7 Re, Loretta, 12

Read, Albert Leonard, 19 Read, John, 175 Read, John Leonard, 19, 26, 167-8

Reid, James Scott Cumberland (Lord), 22, 36,

240, 253

Remington v Welsbach Light Co. (1914), 308,

309 Returned Servicemen’s League, 127-8 Ribbentrop, Joachim von, 104, 113 Rich, Sir George Edward, 22, 27, 29, 61, 63,

Royal Commission on the Constitution of the

Royal Empire Society, 181, 188, 342 Royle, Adm. Sir Guy Charles, 132, 137, 138,

176 Rubinstein, Artur, 90 Rushmer, June, 74 Russell, Francis Xavier Joseph (Lord), 104, 106, 107 Russell, Frank A., 13-14, 26 Rylah, Sir Arthur Gordon, 281

Salvage Board, see Commonwealth

Salvage Board

Marine

Sawer, Geoffrey, 66, 80, 178, 319

66, 88, 90, 91, 92, 131, 192, 199; and col-

Schiller, Ferdinand, 104 Schuman, Robert, 217 Schuster, Claud (Lord), 104

(R v Brislan), 93 (Sun Newspapers Ltd),

Scott, Sir Leslie Frederic, 36, 42, 43, 46, 104;

leagues, 71, 72,

188, 258; judgments,

73

119, 185 (State Banking Case), 189 (Bank Nationalisation

Case),

191-2

(Isaacs

v

Schutt, William John, 49, 50

OD's view of, 107, 111

Scott v Shepherd (1773), 87

399

INDEX Stanley, Sir Arthur Lyulph, 34

Scullin, James Henry, 58, 59 Scully, William James, 131

Searby, Richard Henry, 278; on OD, 19, 22, 25, 49, 258, 259-60, 262-3, 264, 265-6, 305, 316, 317, 318, 361, 362, 365 SEATO, 226

Second

Pharmaceutical

Second

Uniform

Benefits

Case,

British Medical Assn v Commonwealth Commonwealth

Tax

Case,

see

see v

258, 345; judgments, 67, 68, 75ff (Sode-

Victoria

36-7, 39, 47

Sharp,

Stevenson

@

Hare

PL

v

Federal

Commissioner of Taxation (1927), 313 Sharwood, William Henry, 40

67ff, 70, 72, 79, 88-9, 90, 178, 187, 190,

man Case), 88-9 (Nassoor’s Case), 89, 119,

179 (First Pharmaceutical Benefits Case), 185 (State Banking Case), 187-9 (Bank

Nationalisation Case), 256-7; and OD, 48, 51, 57, 58, 78-9, 134; OD’s view of, 67ff,

88, 89, 96, 119, 189, 265; personality, 56-7, 71, 79, 89, 325

State Banking Case, see Melbourne Corpora-

tion v Commonwealth

Shaw, Patrick, 346 Shaw, T. E., 8 Shaw, Thomas (Lord), 35

Statute of Monopolies, 271-2

Shedden, Frederick Geoffrey, 133, 138, 173, 193, 228 Sherwood, Martin, 107

Shipping Management Committee (of SCB), 129 Sholl, Reginald Richard, 230, 234

Shostakovich, Dmitry, 268

Simon,

Stanley, Lady (Margaret), 34

Stapleton, Terence, 235

Stapleton v The Queen (1952), 235, 275-6 Starke, Sir Hayden Erskine, 23, 38, 49, 50, 61, 123, 192, 267; and colleagues, 59, 63-4,

Seitz, John Arnold, 7 Selborne Chambers (Melbourne), 17, 18, 28, Seton v Lafone (1886), 87

Stanley, Henry Morton, 5

Sir John Allsebrook

(Viscount), 35,

Stauffenberg, Lt-Col. Klaus von, 104-5 Stebbins, Henry E., 228 Stemp v Australian Glass (1917), 309

Manufacturers

Stephen, Edward Milner, 91

Stephen, Sir Ninian Martin, 367 Stettinius, Edward R., 143, 158 Stevedoring Industry Commission, 134

Stevenson, Leslie P., 288

38, 40, 42-4, 45; and OD, 45-6, 108. OD’s view of, 109

Stimson, Henry L., 143, 145, 146, 173, 335 Stirling, Alfred, 80, 104, 108, 111, 123

OD’s friendship with, 110, 216, 240, 241,

Street, Geoffrey Austin, 124 Street, Kenneth Whistler, 91

Simon, Lady (Kathleen), 42, 108 Simonds, Gavin Turnbull (Viscount), 53, 223, 238, 287; and Boilermakers’ Case, 256-8;

253, 268, 282 Simpson, William Ballantyne, 182 Singleton, Sir John Edward, 104

Slater, William, 157 Slim, Lady (Aileen), 268 Slim, Field Marshal Sir William, 247, 273 Smart, Lt-Gen. Edward Kenneth, 143, 153, 167

Stock, Reginald, 316 Stone, Harlan Fiske, 153, 154

Sturdee, Lt-Gen. Vernon Ashton Hobart, 132,

138, 153 Sullivan, H., 332

Summers v Commonwealth (1918), 309 Sun Newspapers Ltd and Associated Newspapers Ltd v Federal Commissioner of

Taxation (1938), 93-4

Smith, Quintin Hugh Rose, 7, 8, 9, 305

Sutherland, Lt-Gen. Richard K., 161, 163-4 Syme, David York, 225

tions v Smith Snedden, Billy Mackie, 283

Tait, James Blair, 28

Smith, Thomas Weetman, 230, 234, 277 Smith v Cock (1910), 21 Smith’s Case, see Director of Public Prosecu-

Tait, Robert Peter, 28-1

Society of Public Teachers of Law, 110

Sodeman, Amold Karl, 74-8

Sodeman v The King (1936), 49, 74-7, 273

South

Australia

180, 265, 342

v Commonwealth

Spencer, Herbert, 66 Spender, Percy Claude,

122,

135,

(1942),

175,

193,

217, 218, 262, 333 Spicer, John, 199, 227, 229, 230, 232, 234, 259

Spraggett, Richard Springthorpe, John Spry, Brig. Charles Spry, Ian Charles

305, 318

William, 236-7, 355 William, 79 Chambers Fowell, 244 Fowell, 224, 283, 287-8,

Stalin, Josef, 145, 190

Tait v The Queen (1962), 280-2, 365 Tasmania v Victoria (1935), 65 Taylor, Sir Alan Russell, 19, 188, 229,

263;

appointment to High Court, 234; judg-

ments, 239 (Hughes G Vale 1953), 255

(Boilermakers’ Case), 262 (Orr Case) Thankerton, Lord (William Watson, Baron Thankerton), 106, 107 Thomas v The King (1937), 43

Thomson v Palmer (1933), 61, 240, 357 Tiselius, A. W. K., 268 Toynbee, Arnold, 258 Transport Cases (1930s), see Roughley v NSW, Willard v Rawson;

uv Commissioner;

R v Vizzard; O. Gilpin

Bessell v Dayman;

and

Duncan and Green Star Trading v Vizzard

400

INDEX

Transport

Publishing

Co.

PL

v Literature

Board of Review (1956), 261-2

Trethowan's

Case,

(NSW) v Trethowan

see

Attorney-General

Trott zu Solz, Adam von, 104-5 Truman, Harry, 149, 192, 198, 226 Trumper, Victor, 20

Tucker, (Frederick) James (Lord), 240, 357

Tucker, Thomas George, 9, 10, 11, 270 Turner,

see

R

v Turner;

Board of Hobart

ex

parte

Marine

Turner, Sir George James, 232

Tylor, (Theodore) Henry, 110

United Nations, 150, 170, 174, 219; and Kashmir, 193, 197-218 passim; 197; OD's

view of, 198, 216, 229, 250, 359

United

Nations

Relief and

Rehabilitation

Administration, 169-70, 171-2 University of Melbourne, 4, 9-14

Uther v Federal Commissioner of Taxation (1947), 265, 279-80, 344, 362

Webb v Outtrim (1907), 29 Weigall, Theyre a Beckett, 47, 50

Weigall, W. F, 312

Welles, Sumner, 146; hospitality, style, 156,

158; and OD, 136, 141, 143-4, 145, 157, 169 Welsbach Light Co. of Australasia Ltd v Commonwealth (1916), 309

West v Commissioner

of Taxation

(NSW)

(1937), 84-6, 184 Wheare, Kenneth Clinton, 110 Whiskard, Sir Geoffrey Granville, 91 White, Gen. Sir Brudenell, 123, 124, 132 Whittaker, Charles E., 268

Wiley, Alexander, 242

Wilkins, Raymond S., 268 Willard v Rawson (1933), 65, 195 Willes, Sir James Shaw, 109, 232 Williams, Sir Dudley, 191, 358; characteristics, 123; health, 234-5, 267, 355; judgments, 179 (First Pharmaceutical Benefits Case), 185 (State Banking Case), 187-9 (Bank Nationalisation Case), 239 (Highes & Vale

1953), 255 (Boilermakers’ Case), 262-3 (Orr

Vacuum Oil Co. PL v Qld (1934), 65

Case), 267; OD's view of, 90, 123, 189, 229

Vacuum Oil Co. PL v Qld (No. 2) (1935), 65

Vasey, Maj.-Gen. George Alan, 176 Victoria v Commonwealth (1957), 185-6, 265

Victorian Bar Council, 27 Vienna Cafe, 14

Vinson, Frederick Moore, 218, 242

Virginia~Carolina Chemical’ Corporation's Application, Re (1958), 271

Vizzard, see R v Vizzard; ex parte Hill

W. & A. McArthurv Qld (1920), 52, 64, 79, 310

Wackett, Lawrence James, 120

Wakehurst, Lord (John de Vere Loder), 176 Walker, Harry, 314 Wallaby Club, 54, 73, 79, 86-7, 121

Williams, Air Marshal

167, Willkie, Wilson, Wilson,

336 Wendell, 279 Roland, 357 Mrs Woodrow,

Richard,

137,

162.

158

Windeyer, Sir (W. J.) Victor, 267, 278, 312

Windsor, (Bessie) Wallis, Duchess of, 241 Winneke, Sir Henry Arthur, 281, 283, 307, 355, 365 Winneke, Henry Christian, 17, 307 Witton v Simmons (1914), 23-4, 308 Woinarski, Severin Howard, 95, 132, 203,

230, 287 Woodruff, Harold Addison, 121, 330

Wallace, Henry, 144

‘Woods, Frank, 267 Wool Contract Avoidance Regulations, 116 Wool Sliping and Scouring Co. Ltd v Central Wool Committee (1920), 311

Warren, Earl, 254, 267-8, 277, 279 Wasserman, William S., 135, 135, 137, 159

Wright,

Ward, Edward John (Eddie), 133, 343

Waterhouse, Eben Gowrie, 92 Waterside Workers’ Federation, 129, 133, 145

Waterside Workers’ Federation of Australia v J. W. Alexander Ltd (1918), 309

Watt, Alan Stewart, 192, 211, 220, 228; Secretary to OD in Washington, 136, 142, 147-9, 166, 170, 268; on Menzies Bevin, 226; and OD, postwar, 228,

reports Acheson on OD, 174

First 140, and 357;

Watt, William Alexander, 96

Wavell, Field Marshal Archibald Percival, 249

Webb, John Langley, 332 Webb, Sir William, 181, 186-7, 195, 234, 244, 267, 343, 355, 362; judgments, 222 (Communist Party Case), 239 (Hughes & Vale 1953), 255 (Boilermakers’ Case); OD's view of, 229

Worthington, see R v Worthington Wrenbury, Lord (Henry Burton Buckley), 43 Robert

(Lord),

80,

Wurtsmith, Brig.-Gen. Paul B., 137, Wynes, William Anstey, 82 Wynyard, Diana, 192 Wyzanski, Charles E., 268

168

106, 107

Alderson

104,

Yeo, Norman Wyatt, 115, 116, 117, 118, 125, 126, 330, 331; and BAWRA, CWC ‘inner cabinet’, 119

127; in

Young, Frank N., 115, 126-7, 330

Young, John Mcintosh, 202, 224, 270, 288, 347

Young, Walter James, 33, 46

Zafrulla Khan, Sir Muhammad, 193, 201, 347 Zion Independent Church, 3-4

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