GIDEON HAIGH The Brilliant Boy: Doc Evatt and the Great Australian Dissent. Reviewed by Bernard Whimpress
Gideon Haigh has written a captivating account of the legal career of one of Australia’s most enthralling public figures, Herbert Vere Evatt, and a defining court case.
Better known as ‘Doc’ or ‘Bert’, Evatt was Minister for External Affairs and Attorney General during the Curtin and Chifley governments, President of the United Nations General Assembly, and Leader of the Opposition during the 1950s.
Evatt has been the subject of several political biographies, but this book is devoted to his outstanding career in the law, which culminated in his appointment as the nation’s youngest-ever High Court judge at the age of thirty-six. He was to serve on that body for ten years until his retirement to enter federal politics.
The front cover features a photograph of Evatt in his thirties, and the text details his glittering academic record at Sydney University, his phenomenal success at the Bar, and his brief time in New South Wales politics as a Labor MP. The book’s title is well chosen and has a dual purpose.
Max Chester is a second brilliant boy, the hope of his Polish–Jewish refugee family – their name anglicised from Sochaczewski – who drowns at the age of seven in an unfenced trench after excavation work by Sydney’s Waverley Council in 1937. His was a life unlived, and this tragedy would become the subject of one of Evatt’s defining judgements in his career on the High Court.
The story opens with a moving prologue, where the author tells of tracing a man in 2018 who had been a nine-year-old witness at a trial eighty years before. In the 1950s Ken McCaffery represented the Australian Kangaroos at rugby league as a utility back, but when Haigh phoned him the conversation ran as follows:
‘Mr McCaffery, this may sound like a strange question,’ I began tentatively. ‘But do you remember a boy called Max Chester?’
There was a pause. I briefly thought we had been disconnected. Then the voice returned, quiet and sombre. ‘Mate,’ said Ken McCaffery. ‘I’m going to start crying now …’
An introductory chapter outlines the background to the case – Chester v the Council of the Municipality of Waverley (1939) – which ends up appealed to the High Court, although major discussion of the case does not begin until 200 pages later.
In the intervening chapters Evatt is revealed as a barrister and judge whose primary concern is to obtain justice before the law for the maltreatment of unionists, in workers’ compensation cases, in the attempted exclusion from Australia of left-wing political activist Egon Kisch, and in cases of negligence and failure to exercise a duty of care by public bodies.
A fascinating aspect of the book is Haigh’s assessment of the operation of the High Court. Describing it as ‘lacklustre’ in the 1920s, it would remain fractious in the 1930s. Judge Frank Duffy was ‘notably thrifty with words’, George Rich ‘indolent’, Hayden Starke ‘brusque’, while Owen Dixon, who would win a reputation as Australia’s greatest jurist, ‘set new standards in judgments, unfailingly elegant, discursive and syllogistic’. The appointments of Evatt and Edward McTiernan to the High Court by the Scullin Labor Government in 1930 were criticised, and although Evatt was the recipient of a celebratory dinner organised by the New South Wales Bar, neither of the newcomers appears to have been welcomed:
Of Evatt and McTiernan, Sydney lawyers in their thirties, their mainly Melburnian colleagues would have been conditioned to disapprove. Dixon reputedly contemplated resignation in protest at their selection but contented himself with a characteristically acid observation that the appointments were in their way complementary: ‘Evatt – brains without character; McTiernan – character without brains.’
Everybody, it seemed, disliked each other and although Dixon respected Evatt, he abhorred his ambition.
Abe Landa was a contemporary of Evatt’s younger brother Clive at Sydney University’s Law School and (like both the Evatts) would serve as a state Labor MP. As a solicitor he also briefed them on numerous occasions. Landa was a prominent local identity in Waverley and his Polish–Jewish father was born less than 50 kilometres from Lowicz, the family home of the Sochaczewskis for generations.
Landa briefed Clive Evatt to represent Janet Chester (Golda Sochaczewski, Max’s mother) in Chester v the Council of the Municipality of Waverley before acting Justice Monahan and four jurors in the NSW Supreme Court in 1938, seeking to recover £1000 in compensation for nervous shock resulting from seeing the body of her son. At issue was whether the council could be held responsible for the shock suffered. ‘Nervous shock’ was one of those vague expressions like ‘hysteria’, ‘neurasthenia’, ‘shell shock’ and others which cut little ice with judges in compensable cases. When Monahan made his judgment, he found the council negligent in leaving the trench unguarded but that Max Chester’s drowning ‘had no effect’ on his mother’s mind. The decision was upheld by the full New South Wales Supreme Court, led by Chief Justice Sir Frederick Jordan.
A strength of the book is the attention Haigh gives to negligence cases, often from British and American jurisdictions, although one Australian case, Commissioner of Railways v Corben (1938), had strong parallels to Chester. Seventeen-year-old Sidney Corben had been hurled from a suburban train and died as a result of the train’s violent lurching action on a bend in the tracks; like Chester, the case involved a mother seeking compensation for the accidental death of a son. Corben had also been heard by Justice Monahan, who awarded damages of £789 to the family, only to be overturned by the Supreme Court led by Jordan. On their High Court appeals Chester would be heard by Evatt, Rich, Starke and Chief Justice John Latham on 31 March 1939 and Corben five days later by Evatt, Rich, Starke and McTiernan.
Discussing Corben first, Haigh remarks on Rich’s lack of interest in the evidence of witnesses to the accident and that of engineers about the condition of the rail following Jordan’s full court finding, and Starke’s heartlessness in putting the blame on the victim’s carelessness. While McTiernan found for Ruby Corben, Evatt’s judgment could only tie the vote. Nevertheless, he embarked on a 6000-word judgment which gave the deceased an identity and underlined his loss as a symbol of possibility denied.
In 1939 Evatt is at the peak of his own possibilities. He had achieved all the marks of distinction in Australian law except perhaps the chief justiceship; he was an Australian nationalist in his support of his country’s history and literature, and a notable author himself; and he had established an international reputation in his sabbatical year overseas in his lectures (at Harvard and Columbia universities) and at meetings with major political, legal and artistic figures. As the writer Nettie Palmer diarised (in a line which Haigh borrows for the title of his seventh chapter): ‘He can do what he wants.’ The Chester case offered Evatt a unique opportunity.
As a young man Evatt lost two of his elder brothers, both killed in action during the First World War, and no doubt shared some of the grief experienced by his mother. It seems likely that he experienced survivor guilt.
In Chester, the majority view expressed by Latham, Starke and Rich in finding for the council is (according to Haigh) notable for its ‘gruffness’:
Their language was affectless, the reasoning bloodless, the matter’s participants so depersonalised that they did not even have names, and because it was difficult to establish where the limits of a duty might end, they elected not to try. That Golda was Maxie’s mother did not come into their calculations. Instead, the chief justice urged that death was an everyday occurrence, and its effect on others equally transient.
By contrast, Evatt’s landmark 14,000-word dissenting judgment is warm and humane, rich in cultural and literary references:
In the history of the High Court, there have hardly been paragraphs so infused with the sense of a judge stepping down from the Bench to commune with a plaintiff in their suffering. He offers Golda Chester the voice she was denied by needing to speak in her second language; it unites her with other mothers, perhaps including Evatt’s own, in the experience of the ‘agony of hope and fear’ occasioned by a child in peril.
It is almost certain that Evatt was thinking beyond his life on the High Court. In Haigh’s words he ‘appears to be going further than he needs for the purposes of Chester: he is writing what he clearly wishes to be the definitive nervous shock judgment’. Unlike his colleagues who ‘maintain cool indifference to the Chesters’ circumstances, Evatt displays interest in daily life among the urban poor’ and his use of literature ‘affords the judgment … accessibility and reach’.
In concluding, Haigh writes,
It is possible … to read Evatt’s judgment in Chester not just as dissenting a majority view in this case but dissenting a majority view of judicial writing and legal thinking casting only backwards and sideways. Law insisting that harm required lesions and lacerations ignored the march of science. Law incapable of acknowledging something as fundamental as maternal love was at odds with the humanity it purported to serve. Far from the tort of negligence requiring a posture of disinterest excluding sentiment, it was precisely where a judge had to be most imaginative.
And he goes on to cite AL Goodhart’s discussion in ‘An Australian Shock Case’ in the British Law Quarterly Review (1939), which disposes of the propositions of Latham, Rich and Starke and considers Evatt’s judgment to be the one that would prevail. Evatt (and Australia) would be seen as ‘a shaper of the law rather than always a deriver’.
The first chapter of The Brilliant Boy opens:
A recent documentary about Doc Evatt introduced him as a ‘little-known Australian’. It may even be true. His world seems remote. He does not easily fit into a national pantheon that exalts bravery in war, popularity in culture, electoral success in politics.
But the notion that a man of such eminence should be forgotten is ridiculous for anyone who believes in a just and fair Australia.
Good biographers frequently restore their subjects to life and significance. In his prize-winning book, Mystery Spinner (1999) Gideon Haigh did so for the obscure Australian Test cricketer Jack Iverson. In his true-crime story A Scandal in Bohemia (2018), he gave meaning to the life of 25-year-old murder victim Mollie Dean, a vivacious and spirited young woman on the fringe of Melbourne artistic circles. In Chester, Justice Evatt gave significance to a young life that was needlessly lost. The Brilliant Boy returns Doc Evatt to the main frame of Australian history.
Gideon Haigh The Brilliant Boy: Doc Evatt and the Great Australian Dissent Simon & Schuster 2021 HB 384pp $39.99
Bernard Whimpress usually writes on sport and his most recent book is George Giffen: A Biography (2020).
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