LAST WORD

quarantine ; (noun) a period of time when an animal or person that has or may have a disease is kept away from others to prevent the disease from spreading. Its origin is mid 17^th century: from the Italian quarantina ‘forty days’; from quaranta ‘forty’.

In the past year there has been no more used word, a word in every daily newspaper, every radio and television news bulletin. The concept is not new and has been well understood.

In Sydney Harbour the North Head Quarantine Station was established in the early nineteenth century to protect the inhabitants of the fledgling colony of New South Wales from ship borne disease. Those who might be infected were kept long enough until it was considered safe to release them. Just like today quarantine was said to be bad for trade and we have quarantine hotels sheltering recent arrivals from hot spots of the COVID-19 epidemic.

Strange to relate, the  North Head Quarantine Station closed in the early 1980s  is now used as a hotel and conference centre.

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Workplace Review in previous editions in 2020 has dealt with how the epidemic has changed the nature of work and the courtroom. One of the epidemic’s offshoots, with people working at home, has been the keen acquisition of pets particularly dogs. I took delivery of a new puppy in January this year,  Boris the Bichon Frise. He is a challenge but a complete delight. On walks in the local streets I have met many new neighbours, found dog friendly cafes and restaurants. Boris has been very popular sitting at the bar of the local with a bowl of water while I have a Resch’s draught.

As the effect of the epidemic wanes many dogs will be left at home alone, some will be taken to work.

A big recognition for an honest, brave trade unionist and a visionary who helped save much of the heritage architecture of Sydney.

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Staying on the topic of the recently deceased the London Times recently breached the Latin maxim de mortuis nil nisi bonum in its 13 March 2021 obituary of English High Court judge Sir Jeremiah Harman. It started with his nickname “Harman the Horrible” said to be one of the most unpopular judges of recent times. The obituary said, inter alia,” His unworldly ways, bad manners, and refusal to curb the  worst excesses of his capricious personality had served to reinforce an image that had burdened the High Court’s Chancery Division since the publication of Charles Dicken’s Bleak House.”He once kicked a taxi driver whom he mistook for a photographer. He gained another soubriquet ‘the kicking judge’.

Australia has not been immune from having martinets on the Bench, thankfully there has only been a few in that category.

A former Australian High Court judge, Sir Hayden Starke has not been treated well by history. Not so much for the way he treated counsel but for the way he treated his colleagues. High Court biographer Graham Fricke writing in the Oxford Companion to the High Court of Australia (Oxford University Press 2001 p.638) said “It was only when McTiernan and Evatt joined the  Court in 1930 that Starke’s relations with his colleagues settled into sustained and undisguised hostility.”Starke once described his fellow judges as ‘worms not men’, He described Evatt as ‘Dixon’s parrot’.

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The above piece referred to the Oxford Companion to the High Court of Australia,(the Companion)  a book given to me by a colleague for my fiftieth birthday. It is one of those wonderful books one can have close at hand in chambers to dip into when someone is running late for a conference or a case has been unexpectedly adjourned for the day. An interesting aspect of the book  is its characterisation of the Court as led by a particular Chief Justice, e.g., the Gavan Duffy Court, the Latham Court or the Barwick Court. Leslie Zines writing of the Dixon Court ( p220), “During this period, the Court’s prestige was very high, not only in Australia but in other common law countries.Lord Denning described it as the Court’s ‘Golden Age’ and declared it had established a reputation that ‘overtopped even that of the House of Lords’.It was referred to by the Victorian Bar Association as the ‘finest court in the English-speaking world’.The authority of Dixon over the Court was immense, made more significant by the presence of other Justices, particularly Fullager and Kitto.’  In contrast Gavan Duffy was Chief Justice for just under five years,of him Graham Fricke notes that in ‘only 31 reported cases did Gavan Duffy express his own view. In 21(cases) his judgment was only one or two sentences, in another five it was less than a page. Only in the five remaining cases –an average of one a year –did Gavan Duffy give a full judgment;in three of those it was less than three pages.His longest judgments each in dissent .. about three pages..”

How history, and a future editions of the Companion will judge the Kiefel Court is yet to be determined. Chief Justice Kiefel has led the court since January 2017 and was appointed as a justice of the High Court in September 2007. One problem future biographers and historians will face is scant material in judgments which bear her Honour’s name. Collegiality is a fine thing in all enterprises but in legal analysis not much can be gained as to who is the driving intellectual force (unlike the Dixon or Barwick courts)  by judgments of the whole court or decisions which have other justices names appended to them.

Jeffrey Phillips, SC

State Chambers