Kitto and the High Court of Australia*
| Author | Michael Kirby |
| Date | 01 March 1999 |
| DOI | 10.22145/flr.27.1.6 |
| Published date | 01 March 1999 |
| Subject Matter | Article |
KITTO
AND
THE
HIGH
COURT
OF
AUSTRALIA*
The
Hon
Justice Michael Kirby
AC
CMG**
Judicial biographies
in
Australia are rare.1Even famous judges,
who
have
led
interesting
and
varied lives, pass
without
a
proper
record of their decisions
and
intellectual
and
personal struggles. So
it
is
with
the Right Honourable Sir Frank Kitto
AC
KBE,
Justice of the
High
Court
of Australia from 1950 to 1970.
He
settled
in
the
Armidale District after the conclusion of his service
on
the
High
Court.
He
served
as
the Chancellor of the University of
New
England from 1970 until 1981. With his wife
Eleanor
he
devoted his time (apart from working asmall grazing property), as
he
put
it, to
"a
mass of reading
that
I
had
had
to
put
aside
through
the years of
my
professional life".2
He
described this reading as ranging over subjects "from history
and
biography
...
and
philosophy to fiction, both light
and
classical".3
He
even
spoke of
the enjoyment of selected programmes
on
television.
One
suspects
that
his viewing
was
probably connected
with
his duties in late years as foundation
Chairman
of the
Australian Press Council rather
than
a
quest
for
enlightenment-generally
elusive
on
the small screen.
Sir Frank Kitto
died
on
15 February 1994.4
He
wrote,
in
an
oft-quoted essay:
We
must
look
straight
in
the
face
the
fact
that
in
spite
of
all
our
care
and
all
our
toil
our
judgments
are
not
likely to
make
our
names
in
history. If
we
are
read
by
posterity
at
all
it
will
be
only
by
the
posterity
of
the
near
future.
The
reward
of
judicial
work
is not,
except
for
the
great,
any
degree
of
lasting fame;
and
you
will agree, I
am
sur~
that
it
ought
not
to
be
even
a
question
in
the
judge's
mind
as
he
laboriously
does
his job.
Clearly, Kitto
thought
that
this was the fate of all judges: even of his great
and
much
admired
Chief Justice, Sir
Owen
Dixon. Recording "some recollections of Sir
Owen
Dixon"6 in 1986,
he
said:
*
1
2
3
4
5
6
This is
an
expanded
and
revised
version
of
the
Sir
Frank
Kitto lecture
given
by
the
author
at
the
University
of
New
England, Armidale,
New
South
Wales,
on
22 May 1998.
Justice
of
the
High
Court
of
Australia.
There
are
two
recent
biographical books
on
Justice Lionel
Murphy:
J
Hocking,
Lionel
Murphy-A
Political Biography (1997)
reviewed
(1998) 72
ALJ
162
and
M
Coper
and
GWilliams, Justice Lionel
Murphy-Influential
or Merely Prescient? (1997). See also
Chief
Justice Barwick's
autobiographical
work
ARadical Tory (1995)
and
D
Marr,
Banvick (1980).
Quoted
in
Australian
Press Council, News
August
1993
at
8.
Ibid.
See RP
Meagher's
obituary
of Sir
Frank
Walters Kitto AC,
KBE,
"Champion
of
Justice,
Knowledge" Australian, 18
February
1994
at
13.
F W Kitto, "Why Write Judgments?" (1992) 66
AL]
787
at
799.
(1986) 15
MULR
577
at
578.
132
Federal
Law
Review Volume 27
We
can
hardly
expect
that
his fame,
great
among
lawyers
though
Ibelieve
it
will
always
be, will continue to
be
widely celebrated
by
generations
of
Australians
who
did
not
know
him
for
the
mighty
man
that
he
was.7
With these
thoughts
in
mind,
and
acknowledging the transience of fame,
it
is
inevitable
that
later generations of lawyers will
not
have
known
Sir Frank Kitto
nor
read, as often
perhaps
as they should, his opinions
written
in
the
High
Court.
It
is
therefore
prudent
to reflect
on
his life
and
to record something of his story.
FRANK
KITIO:
LAWYER
AND
JUDGE
Frank Kitto
was
born
in
Melbourne
on
30 July 1903. His paternal grandfather
was
a
Cornishman,
said
to
have
been from afamily of miners of tin
and
antimony.8 His
grandfather
came to the goldfields in Australia seeking his fortune.
He
arrived
in
Ballarat, Victoria
in
the 1860s. Although
he
found
no
gold,
he
became a
mine
manager
and
established alife for himself
and
his family
in
Ballarat
where
Frank Kitto's father
was
born.9
The father
began
his
working
life as atelegraph messenger boy.
He
studied
accountancy
at
night
school
and
remained
in
the postal service
throughout
his life. For
atime,
he
served
as
Deputy
Postmaster General
in
South Australia
and
later
New
South Wales.
At
the
end
of his career
he
was
appointed
amember of
the
Australian
Broadcasting Commission
and
honoured
by
appointment
as
an
Officer of the
Order
the British Empire. His wife, Kitto's mother,
Adi
Lillian,
was
the
daughter
of a
Methodist minister, Rev Jesse Carey. The couple
had
five sons
and
adaughter. Frank
Kitto
was
the eldest child.
He
was
about
ten years of age
when
the family
moved
to
Sydney.l0
The
young
Kitto
grew
up
in
astrict Methodist household. His father
was
alay
preacher.
It
was
only
towards
the
end
of his life
that
Frank Kitto
was
to
throw
off his
links
with
the Methodist Church.
He
did
not
follow
it
into the Uniting Church,
having
become disenchanted
with
the institutional churches.
11
Instead,
towards
the
end
of his
life,
he
explored the beliefs of the Quakers.
He
was
reportedly impressed
by
the
absence of dogmatic insistence
on
doctrinal imperatives.
In
Armidale, before his death,
he
often
attended
Quaker
meetings
and
was
greatly taken
by
the atmosphere of silent
reverence
in
the presence of
God~2
There are ironies
in
these reports, for
in
his life
in
the
law
Kitto searched for imperatives. Although
he
was
quiet
and
serious
in
personal
dealings,
in
court
he
could often be extremely direct,
even
sharp
and
cutting.
Frank Kitto
attended
the Mosman Primary School. Later
he
went
to
North
Sydney
Boys'
High
School to which
he
rode
his bicycle along a
dirt
road,
now
Military Road.13
He
did
not
excel
in
sport
and
reportedly found mathematics
and
science difficult. But
7
8
9
10
11
12
13
Ibid.
Monograph
by
MConnor,
The
Right
Honourable
Sir
Frank
Kitto,
unpublished,
(1994). Mrs
Connor
is
the
second
daughter
of
Sir
Frank
and
Lady Kitto
and
was
Justice Kitto's
Associate
in
the
High
Court
for nine years following his
appointment
to
the
High
Court.
Her
monograph
is
deposited
in
the Library of the
High
Court.
Ibid
at
1.
Ibid.
Ibid
at
23.
Ibid.
Ibid
at
2.
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