______________________Sir Frank Kitto Lecture
University of New England
What were they thinking?
Statutory Interpretation and Parliamentary Intention
Chief Justice Robert French AC
23 September 2011, Armidale
May I begin by paying tribute to the life and works of Sir Frank Kitto, 18th Justice of the High Court of Australia and former Chancellor of this University? He was born in Melbourne but undertook his primary and secondary school education in Sydney. He had to seek paid employment immediately after leaving school and joined the Public Service of New South Wales where he worked in the State Crown Solicitor's Office. However, he won an exhibition to Sydney University where he enrolled as an evening student in the Faculty of Arts.
The young Kitto graduated in Arts in 1924 and with first class honours in law in 1927. He went to the New South Wales Bar in that year. He also took part-time work coaching students and lecturing at the Law School and writing on the law. In 1928, he married Eleanor Howard, a teacher and science graduate from the University of Sydney.
In the 1930s, Frank Kitto carved out a reputation for himself at the Bar in equity, taxation and bankruptcy, but also began to be briefed in the appellate jurisdiction of the High Court and in constitutional cases. He was appointed Challis Lecturer in Bankruptcy and Probate at the University of Sydney in 1930 and continued with that appointment until 1933. He tried to enlist for military service during the war but his enlistment application was not accepted. In 1942 he took Silk. His High Court practice increased, as did his equity practice.
In 1947 he represented English-controlled banks in the Bank Nationalisation case1. Not long after the appeal from the High Court to the Privy Council in the Bank Nationalisation case2, Kitto was offered appointment to the High Court. He was then 47 years of age. He commenced his term as a Justice of the Court in May 1950 under Chief Justice Sir John Latham. His colleagues were Sir Owen Dixon, Edward McTiernan, Dudley Williams, Sir William Webb and Wilfred Fullagar. He remained on the Bench until 1970. A few years before his retirement, he and Eleanor purchased a property at Armidale where his eldest daughter and her family had moved in the early 60s. He joined the University Council in 1966, became its Deputy Chancellor in 1968 and, upon his retirement from the Bench in 1970, was elected as Chancellor.
In 1976, Sir Frank Kitto became the Inaugural Chairman of the Australian Press Council. After a long illness his wife of 54 years, Eleanor, died in 1981. She died five days after they had travelled together to Sydney University where he received the honorary degree of Doctor of Laws. He also received the honorary degree of Doctor of Letters from this University. He died in February 1994.
Sir Frank Kitto has been described as one of Australia's 'greatest citizens: scholar, advocate, judge, university principal and Press Council administrator'.3 The late Justice Roderick Meagher who wrote his obituary in The Australian said of him:
It was not only in forensic ability that he excelled: he was probably Australia's leading legal writer.4
Writing about him in The Oxford Companion to the High Court of Australia, former Justice Michael Kirby said:
He shared with Griffith a confident command of nineteenth-century English jurisprudence. He shared with Isaacs the deployment of powerful language in the cause of persuasion. He shared with Dixon the philosophy of judicial restraint. While he did not have Windeyer's inquisitive fascination for the policies that lay behind the common law principles, or for legal history, he wrote in every area of the law he touched with accuracy and precision.5
In an often quoted paper which he delivered in 1973 entitled 'Why Write Judgements?', Kitto said:
[T]he delivery of reasons is part and parcel of the open administration of justice. It is not enough that the hearing of a case has been in public. The process of reasoning which has decided the case must itself be exposed to the light of day, so that all concerned may understand what principles and practice of law and logic are guiding the courts, and so that full publicity may be achieved which provides, on the one hand, a powerful protection against any tendency to judicial autocracy and against any erroneous suspicion of judicial wrongdoing and, on the other hand, an effective stimulant to high judicial performance.6
He realised that publishing written reasons provided more ground for others to criticise and to ensure that any censure directed at a judgment would be enduring. Nevertheless, as he said:
… considerations of despair have no place in the [judge's] thinking.7
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