‘The Brilliant Boy: Doc Evatt and the Great Australian Dissent’ by Gideon Haigh

Very clever title, this one. There are two ‘brilliant boys’ in this book. One is only seven years old, and one afternoon in 1937 he disappears into a badly-fenced trench from which he is dragged, lifeless, some time later. The youngest child of a family of Polish emigrants, Maxie Chester was his mother’s ‘brilliant boy’. The other is ‘Doc’ Evatt: prize-winning student, lawyer, judge, attorney-general, leader of the Opposition for the Labor Party, and President of the United Nations General Assembly. In this book, Gideon Haigh brings the two together in an analysis of the court case Chester v the Council of the Municipality of Waverley (1939) where Evatt issued a poignantly written dissenting judgement that revealed his humanity and erudition. This book is the story of this case, interwoven into a biography of Evatt himself.

So what was so significant about this case? It was a High Court case which had been escalated as part of an appeal against the original findings, not so much about the facts of the drowning, but over whether the council’s duty of care extended to Maxie Chester’s mother Golda as well. As Haigh points out,

Dissents, a minority opinion at odds with the majority view of an appellate court, are a judicial tradition with roots 400 years deep. They are partly an artefact of legal individualism- the freelance life of the Bar instills habits of working alone… the Supreme Court has reserved an honoured place for its ‘Great Dissenters’ and their great dissents…

Dissents fall, broadly, into two categories: the kind written simply as an opinion that turns out not to be shared by colleagues, and the kind self-consciously composed to stand on its own…Evatt’s in Chester fits unapologetically into the later category

p.272, 273

Evatt’s dissent was six times the length of the average judgment of the 1930s. He writes clearly – almost journalistically- setting out the about the trench, the children playing in the streets, young Maxie, his mother. When you read his dissent against the judgments of the other judges, they seem particularly brusque and abstract. Evatt, on the other hand, imagined himself into the situation, and called upon the Lost Child trope that has run so deep in Australian culture. He quoted from literature, not Shakespeare or Ruskin but from Australian literature, in the form of Joseph Furphy’s Such is Life, bringing Golda Chester’s suffering “into the range of normal human Australian responses” (p.281). His prose

with its long sentences and sometimes complex constructions, never scintillates, but it is muscular, rigorous, pungent. Through the patina of judicial restraint, a fine fury can be felt…If the concepts are occasionally abstruse, Evatt’s reasoning is seldom obscure. He finds ways at each point to relate them to everyday understandings…It is the use of literature, of course, that affords the judgment such accessibility and reach. It is possible, in fact, to read Evatt’s judgement in Chester not just as dissenting a major 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 so fundamental as maternal love was at odds with the humanity it purported to serve.

292,293

I’m not sure if, taken over the whole length of Evatt’s life, the Chester case was the most important one on which he ruled. Nor am I sure that it is a particularly significant case in Australian law. But in a way, that is not important. Haigh is a writer, more than he is a judicial biographer or historian, and he hangs his broader professional and political biography on the Chester case as part of shaping the narrative, as a creative act in re-reading and re-presenting a man’s life.

Like others of a progressive leaning, I was appalled by Donald Trump’s bare-faced stacking of the U.S. Supreme Court with conservative judges. But I have to admit that Evatt’s appointment to the Australian High Court was a prime example of stacking as well. Evatt was a politician, a High Court judge, a politician and then a judge again as Chief Justice of the NSW Supreme Court, ping-ponging between politics and the judiciary to an extent that I’m not aware of occurring today. Indeed, had it occurred before Evatt either? I’m not sure.

Haigh highlights Evatt’s precocity and brilliance, and his involvement in the progressive cultural life in Australia at the time. As a progressive lawyer, he admired H.B.Higgins and was part of the literary network that had the Vance and Nettie Palmer (Higgins’ niece) at its heart. His artistic interests led him to the Heide network and to become the champion of modernist art, pointedly in opposition to his political foe Robert Menzies. He was a historian, although his philosophy of history appears particularly bombastic and rigid to me, loftily pronouncing that lawyers had a unique faculty for pronouncing on history, being ‘skilled in the actual science of legal investigations’ (p. 176.). He wrote on William Bligh in Rum Rebellion and also of the Royal Prerogative, the subject of his PhD thesis that led to his nickname ‘Doc’ and which was expounded in his 1936 book The King and His Dominion Governors. Some forty years later an erstwhile legal colleague, by then knighted as Sir John Kerr, was to pore over it in 1977 when weighing up options to dismiss the Whitlam government. Evatt’s intellect was broad ranging and intense, isolating him from many of his more quotidian Labor Party colleagues but also empowering him to circulate at the highest judicial and political levels when he visited the United States. As Haigh notes, he was egotistical, self-interested and ambitious, as well as imbued with a life-long sense of social justice, not just as a principle but as something to be enacted, with him playing a part himself in the formation of liberal and human policies.

There’s a lot of law in this book, and Haigh does wander at times into tangentially-related cases as part of painting a picture of how the law grappled with issues of negligence, trauma and technological change. As part of a High Court bench and as puisne judge, Evatt was just one member of different triads of judges hearing appeal cases. As in many judicial bureaucracies, there were jealousies and rivalries in a competitive milieu of sharp intellects and long-game ambitions.

There’s a lot of politics too: the chronological fortunes of the Labor Party at national and state level, the clash of political personas, the historical significance of cases in which he participated (as in the defence of Egon Kisch) the interpersonal snarling politics of judges amongst themselves and the opening up of international politics post WWII with the creation of the United Nations.

Haigh walks around his subject, viewing him from multiple perspectives: student, husband, father, legal practitioner, politician, international diplomat, historian and public intellectual. As a work of biography, it is masterful in cracking the humanity in the Chester case – both the poignancy of Maxie’s death and the humanity of Evatt’s response to it – and using that case as the fulcrum on which Haigh balances other perspectives of a public life. Haigh has not written this as a history, even though history is woven throughout it, and I found myself ruing the absence of an index – something that I think undersells Haigh’s work and the diligence of the reader.

I’ve read my share of judicial biography, and this book stands apart in the roundedness of its approach. It acknowledges Evatt’s flawed genius and locates the man and his work within the political and judicial currents running at the time. It’s very good.

My rating: 9/10

Sourced from: Yarra Plenty Regional Library