12 May 2017 - SIR OWEN DIXON


G'day folks,

Welcome to some background on an outstanding Australian. Sir Owen Dixon OM GCMG QC was an Australian judge and diplomat who served as the sixth Chief Justice of Australia.

Sir Owen Dixon (1886-1972), judge, was born on 28 April 1886 at Hawthorn, Melbourne, only son of Joseph William Dixon, barrister, and his wife Edith Annie, née Owen, both from Yorkshire, England. Because of deafness Joseph left the Bar and formed a partnership as a solicitor with one of his brothers. Owen was later to say that it 'was not easy' being brought up in a deaf man's house. He was, nevertheless, fond of his father and as a young barrister would discuss cases with him, standing face to face, his arms around his father's shoulders, his legs slightly apart and his mouth close to his father's ear, both men rocking from side to side as they talked.

The family had little money to spare, largely as a result of Joseph's ill health and some unsuccessful investments. Educated principally at Hawthorn College, Owen won a number of prizes and did well in his matriculation examinations. While the other boys admired him for his academic attainments, he was not popular as games-players were; his main sporting achievement was in rifle-shooting.

Dixon attended the University of Melbourne (B.A., 1906; LL.B., 1908; M.A., 1909) where he did not distinguish himself as a scholar, perhaps because he was interested in learning for learning's sake rather than for passing exams. He was influenced by professors (Sir) Harrison Moore and Thomas George Tucker: he obtained from Moore 'a complete grasp of legal principle . . . and a lively interest in constitutional and legal development'; from Tucker he acquired 'a love of classical literature and a sympathy with classical thought that affected the cast of his mind'.

It was due to Dixon's schooling in the classics that his 'passion for exactness in thought and expression was accompanied by a consciousness of fallibility'. These studies constituted the grounding of his later style of writing which displayed elegance and a mastery of the English language and the law. Of Dixon in his university days, a contemporary said that 'he possessed a soundness of judgement that was surprising . . . My own recollection of him is one of laughing indolence, which did not preclude an almost uncanny exactness of knowledge. I believe that what he once read he never forgot'.

Admitted to the Bar on 1 March 1910, Dixon took rooms in Selborne Chambers. He was unable to read with anyone because of his family's poor financial circumstances. In his early years he was one of the barristers commissioned by (Sir) Leo Cussen to work on the consolidation of Victorian statutes. While a junior, Dixon took three pupils—(Sir) Robert Menzies, (Sir) Henry Baker and (Sir) James Tait.

On 8 January 1920 at St Paul's Anglican Cathedral, Melbourne, Dixon married Alice Crossland Brooksbank (d.1971). He was greatly attached to his wife and kept in constant contact with her when they were apart. They had four children: Franklin Owen ('Bruv'), born in 1922, who suffered from conical cornea; Edward Owen ('Ted'), Elizabeth Brooksbank Owen ('Bett') and Anne Helen Owen, born in 1934. Dixon led a relatively simple life. He enjoyed horse-riding and—especially with his family—cycling and walking; he was a member of the Wallaby Club (president 1936). He also read avidly and widely. In keeping with his style of life, he disapproved of divorce, and was a teetotaller which stemmed from a promise he had made to his mother because of his father's heavy drinking.

Appointed K.C. in 1922, Dixon came to exercise 'absolute dominance' over the Bar. He was its 'acknowledged leader', 'its outstanding lawyer and its greatest advocate'. A tall, loose-jointed figure with somewhat stooped shoulders, he had a reputation for advocacy of 'calculated flippancy'. He was immensely effective, particularly in the High Court of Australia where he frequently appeared in both constitutional and non-constitutional matters; he 'set one judge against another', skilfully isolating a minority opposed to his point of view and 'persuading a majority to decide in his favour'. Before a jury, however, he was 'too intellectual' and did not shine at cross-examination.

Dixon worked prodigiously hard at the Bar, but enjoyed it enormously. He appeared on a number of occasions before the Privy Council. Sir John (Viscount) Simon, K.C., was so impressed with him that he 'suggested that he should take chambers in London and practise at the English Bar'. In 1928 Dixon was one of three barristers appointed by the committee of counsel for Victoria to present its submissions to the royal commission on the Constitution.

In July-December 1926 he had served as an acting-judge of the Supreme Court of Victoria. He refused to take a permanent post, possibly due to his opposition to hanging, a punishment which he regarded as barbaric. That year the Federal attorney-general (Sir) John Latham offered him the position of chief judge on the Commonwealth Court of Conciliation and Arbitration, but he declined. On 4 February 1929 Dixon was appointed to the High Court. At 42, he was the youngest member of the bench. He later said that he had accepted the post 'because I was told I ought'.

Throughout his career on the bench Dixon was to maintain that he disliked judicial work, saying that no one could get any pleasure out of it, and that it was hard and unrewarding. Part of his unhappiness arose from relationships between members of the High Court which were initially far from harmonious. Antagonism was eased in 1950 with the appointments of (Sir) Frank Kitto and (Sir) Wilfred Fullagar. Dixon liked both of them and particularly respected Fullagar. The court became a more congenial place in which to work.

Dixon had been on board a ship, returning from an overseas visit to seek treatment for Franklin's eyes, when war was declared in September 1939. On arriving in Australia, he told Prime Minister Menzies that he was 'anxious to do anything [he] could for the war', although he was to say in retrospect that he was not sure it was appropriate for a judge to do other work while holding office. Dixon chaired the Central Wool Committee (1940-42), the Shipping Control Board (1941-42), the Commonwealth Marine War Risks Insurance Board (1941-42), the Salvage Board (1942) and the Allied Consultative Shipping Council (1942). He displayed marked skill as an administrator and, after he had resigned from these bodies, was still consulted informally about their work. While engaged in this extrajudicial activity, he continued to sit on the bench, though he did less court work than previously. He had been appointed K.C.M.G. in 1941.

In April 1942 Sir Owen was chosen to succeed Richard Gavin (Baron) Casey as Australian minister in Washington. Dixon accepted the position only after pressure was exerted by Prime Minister John Curtin who argued that he could thereby make a more significant contribution to winning the war. As minister, Dixon was required to carry out the normal duties of the head of a diplomatic mission, but his major task was to ensure that the United States of America did not lose sight of the war in the Pacific and that Australia's interests were not neglected. He also represented Australia on the Pacific War Council and, later, on the council of the United Nations Relief and Rehabilitation Administration.

Although Dixon was somewhat Anglophile and disliked many things American, he was able slowly to increase his influence in the U.S.A. and to earn respect. He came to admire individual Americans, such as General George C. Marshall, the army chief of staff, Dean Acheson, the assistant-secretary of state, and Justice Felix Frankfurter. On Dixon's departure from Washington, Marshall and Acheson were to speak warmly of him. Acheson described him as a person who would 'adorn' the Supreme Court of the United States 'if it were possible to appoint him to it'. He added that Dixon 'would be greatly missed in Washington where he had made himself ''beloved"'.

Dixon's job in Washington was made much harder by the minister for external affairs Bert Evatt who had sat with him on the High Court. Dixon disliked Evatt whom he regarded as politically motivated and a poor judge; he had no wish to work again with him. For his part, Evatt had not supported Dixon's appointment to Washington. Accordingly, Dixon had made it a condition of his accepting the post that he would be responsible not to Evatt but directly to the prime minister. Dixon confirmed the arrangement with Curtin on a visit to Australia in 1943. At his own request Dixon was relieved of his post in September 1944. The ostensible reason given was that victory for the Allies was certain and it was therefore proper for him to resume his judicial duties. In fact, the main cause of his wanting to return to Australia was the frustration he felt at Evatt's persistent interference and general conduct.

In 1950 Dixon was nominated as United Nations representative to mediate in the dispute between India and Pakistan over the State of Jammu and Kashmir. Later, he said that he had agreed to the appointment on the misunderstanding that it was to be a Commonwealth, rather than a U.N., operation. He considered the U.N. to be at best of no use, and at worst a danger, to British interests.

Reaching New Delhi in May 1950, Dixon travelled through the disputed territory to collect information, and on 20 July met jointly with prime ministers Jawaharlal Nehru of India and Liaqat Ali Khan of Pakistan. Dixon believed that the problem could only be solved by partitioning the region, but he was hampered by a U.N. Security Council decision to adhere to a plebiscite as the solution. At a series of meetings he advanced proposals to resolve the conflict, the last of which was that a plebiscite should be held in a limited area including the Kashmir Valley and that the rest of the State should be partitioned. India would not agree to take the preliminary steps necessary to ensure that the plebiscite would be a free and fair one. Dixon blamed Nehru for the impasse, observing that his 'strained arguments . . . are characteristic of a man instinctively aware that he is taking up an untenable position and not very proud of it'. None the less, in his report to the Security Council on 15 September Dixon reproached both sides for not reaching agreement.

Despite the failure of his mission, Dixon earned praise from the parties for his efforts. It was said that the qualities he brought to his role as mediator were 'his superb intellectual penetration and his capacity, strengthened over the years at the Bar and on the Bench, to seize on the heart of a complicated issue. Combined with that was his judicious spirit (some of his critics thought too judicious)'. By October he was back on the High Court bench.

Dixon employed the common law method in his judgements with rare skill and with faith in the capacity of its reasoning processes to reach just and correct solutions to legal problems. He took the view that there was 'no other safe guide to judicial decisions in great conflicts than a strict and complete legalism'. It is legalism, in the sense of the 'strict logic and high technique' of the common law, which permeates his judgements. In particular, he considered it essential that the common law method should be applied to the construction of the Commonwealth Constitution in order to maintain public confidence in the court's judgements as apolitical.

Consistent with his endorsement of the common law method, Dixon believed that the doctrine of precedent was of paramount importance. He remained committed to the principle that in general judges should proceed upon the basis that they inherit and develop the corpus juris, but do not make it afresh. He deplored 'the conscious judicial innovator' who 'is bound under the doctrine of precedents by no authority except the error he committed yesterday'. His adherence to precedent is to be seen most clearly in the transport cases decided under section 92 of the Constitution over a period of some twenty years. In the course of this line of cases he bowed to the view of the majority from which he had initially dissented. He was subsequently able to dissent again in McCarter v. Brodie (1950) on the basis of the Privy Council's decision in the Banking case (1949), but followed the majority in McCarter v. Brodie when he passed judgement on Hughes & Vale Pty Ltd v. State of New South Wales (1953). On appeal, the Privy Council adopted the reasons Dixon had given in dissent, principally in McCarter v. Brodie, and expressed much of its judgement in Dixon's own language.

Yet, Dixon's regard for the doctrine of precedent did not prevent him from refining, confining or extending the law in accordance with the common law method. While he accepted the decision of the court in the Engineers' case (1920), his dissatisfaction with the theoretical basis of that decision was shown in the way in which he applied the case more narrowly than others. He admitted that the Engineers' case 'is one that I have always applied with restraint'.

Further, Dixon held that the High Court, as a court of final resort, had a duty to expound the law correctly. The court was not compelled to follow decisions of the House of Lords or of itself where they were manifestly incorrect.

Moreover, he never shirked a decision which reason or principle required, as is demonstrated by the Communist Party case (1951) which involved the validity of the Communist Party Dissolution Act (1950). Dixon was strongly anti-communist and devoted a great deal of time to considering the case, 'much of it . . . in vain attempts to construct arguments in favour of [the] validity [of the Act] which would hold water'. For all that, he decided with the majority that the Act was invalid. Latham dissented and showed Dixon a draft of his judgement; Dixon wrote '[i]t sickened me with its abnegation of the function of the Court and I said so'.

Appointed chief justice on 18 April 1952, Dixon was sworn in three days later. He was 66 and was to hold office for twelve years. His appointment was universally acclaimed. Many thought that he was the greatest judicial lawyer in the English-speaking world; others regarded him as the most distinguished living exponent of the common law. His judgements carried persuasive effect wherever the common law was applied. An English judge, Baron Wilberforce, wrote: 'There is no such thing as substandard Dixon, but from time to time there is Dixon at his superb best'. Dixon's pre-eminence had been recognized by his appointment to the Privy Council in 1951 (although he chose not to sit on it) and by his numerous honours and awards. He was elevated to G.C.M.G.
in 1954 and was appointed to the Order of Merit in 1963. Honorary degrees were conferred upon him by the universities of Oxford (D.C.L., 1958), Harvard (LL.D., 1958), Melbourne (LL.D., 1959) and the Australian National University (LL.D., 1964). In 1955 Yale University had awarded him the Harry E. Howland memorial prize 'for services to mankind' and in 1970 he became a corresponding fellow of the British Academy. The degrees from Oxford and Harvard gave him particular pleasure.

Dixon was a witty and engaging conversationalist. He tended to speak unconsciously in epigrams and his descriptions of his contemporaries could be telling. Renowned for his sense of humour, he could handle the most serious matters with an extraordinarily light touch. Working with him was likely to be punctuated by his peals of laughter, often provoked by the revelation of some human foible that delighted him. In court his sense of humour was restrained, but in conversation he took pleasure in the intellectual joke; he found in the law and lawyers an inexhaustible source of enjoyment. Dixon did have faults. He was rather vain, although he did not wear his vanity openly. In addition, he could be a little pretentious, parading his learning in languages before others who were not so knowledgeable. On the other hand, it has been said of him that he had the 'knowledge and urbanity to be able to talk without any thought of showing off and the grace to assume that others would naturally converse in the same way'. He liked gossip, but in relating the failings of others he showed amusement, not malice.

As chief justice, Dixon defended the integrity and independence of the High Court with vigour. He staunchly opposed suggestions that it should move to Canberra. Indeed, he opposed the court having a permanent seat anywhere because he thought it should not be removed from the people, the judges or the legal profession; he considered that it should be 'an all-Australian Court, going to the people rather than requiring the people to come to it'.

In the early 1960s Dixon's health deteriorated and there was a reduction in both the number of judgements that he wrote and the number of cases on which he sat. On 13 April 1964 he retired. He said that he was doing so 'because I believe I ought', and went on to observe: 'I am not one of those who subscribe to the view that the older you get the better you get . . . I believe in young everything. I thought that I had got too old and was deeply conscious of the fact that I was not doing my work adequately'. Following his retirement he took no part in public life. Asked whether he would allow himself to be nominated for the office of governor-general, he refused, and Casey was appointed. S. H. Z. Woinarski's collection of Dixon's papers and addresses, Jesting Pilate (Sydney), was published in 1965.

Dixon's poor health persisted and he was confined for most of his remaining life to his home at Hawthorn, for some considerable part of that time to his chair. As Sir Owen's eyesight failed, his son Franklin read aloud to him. Survived by his children, Dixon died on 7 July 1972 at his home and was buried in Boroondara cemetery. His portrait by Archibald Colquhoun is in the High Court, Canberra.

Clancy's comment: A sharp man with an even sharper career.

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