The man who replaced Barwick

It's early 1981 and the government has announced that Sir Harry Gibbs will replace Sir Garfield Barwick as chief justice of the High Court ... While Queenslanders might be familiar with Gibbs, few others knew much about him ... In March 1981 Justinian filled-in some of the gaps and made some fearless predictions ... From our Déjà Vu department  

Gibbs: a clean slateInterviews with newly appointed judges are excruciating experiences. Discussion of any subject might be regarded as a weighty extra-judicial pronouncement, and even revealing the judicial golf handicap is avoided on the grounds that it humanises what, after all, are demi-gods.

So it was that The Sydney Morning Herald sent a reporter and photographer out to Stanhope Road, Killara, on Thursday January 29, 1981 only to return with a bundle of snaps and the startling observation from the Chief Justice-designate:

"I am, of course proud to have been chosen for what is a very high office."

This was as almost as revealing as Mr Justice Gibbs' observation nearly 11-years ago when he first went to the High Court:

"I feel considerable pride at my appointment to a court which now enjoys the highest of reputations and has a growing influence."

It doesn't get much more revealing than that.

Gibbs was the popular choice, not only of Cabinet, but of the High Court itself. The judges were tickled pink on hearing that Gibbs, rather than Bob Ellicott, had got the chief justiceship.

Sir Harry Talbot Gibbs, known as Bill to his friends and intimates, is a consensus man. According to the eminent High Court watcher, Professor Tony Blackshield from La Trobe University, this factor has two ramifications.

First, it is likely that he will run a happy and harmonious High Court. Indeed, in his inaugural address Gibbs referred to the friendship and support of his brother judges. The removal of the tensions that so often accompanied relationships with Barwick will undoubtedly result in more joint judgments and round table conferences among the justices.

Second, it has meant that while in the past Gibbs has tended to go along with Barwick, but now Gibbs' view on any given matter could be wide open. It's a fresh slate.

That is not to say that Sir Harry, in his own way, has not staged the occasional little protest. In 1971 sitting alone on a tax matter (the Hollyock case), he rejected Barwick's view that in order for section 260 to apply the sole purpose of a tax scheme must be the avoidance of tax.

Gibbs' view in Hollyock was that it was enough if avoidance was one of the purposes among others in the scheme for the catch-all provision of the Act to apply.

After state Supreme Courts started applying the Gibbs' view, Sir Garfield fortunately found himself sitting on the Privy Council in 1979 where a New Zealand case, Europa Oil No 2, involving a similar issue had to be resolved. Barwick resolved it well and truly, kicking Sir Harry's independent line on section 260 into the members stand.

If anything, this might indicate that Gibbs would be more favourably inclined to the revenue than Barwick, a factor that unquestionably carried weight with the Cabinet in the selection process.

Another manifestation of Gibbs' general deferment to Barwick was that when the two sat together Sir Harry only rarely interposed while a case was being argued. However, in the absence of the former chief Gibbs tends to be a bit more bossy, snapping irritations at the bar table in his squeaky Queensland rasp.

Gibbs is the second chief justice to have been raised in the small Queensland coal-mining town of Ipswich, the first being Sir Samuel Griffith, who was, of course, also the first chief justice of the High Court.

Gibbs' father, also Harry, was a prominent Ipswich solicitor and a city council alderman. Sir Harry's brother is the rather memorable Dr Wylie Talbot Gibbs, surgeon and one-time Liberal member of the House of Representatives for the Queensland seat of Bowman, going out in the slide against the Gorton government in 1969.

It was the Gorton government that appointed Harry to the High Court a year after Wylie lost his seat.

Dr Gibbs went on to become executive director of the Australian Pharmaceutical Manufacturers Association, a lobby group for the drug manufacturers. APMA and Dr Wylie ultimately had a parting of ways because of the executive director's interest in starting a new political party.

Dr Wylie Gibbs got Country Party pre-selection for Bowman in 1975, but did not stand at the election because of the threat of a paternity suit by a young lady who had been employed at APMA. 

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HARRY Gibbs went to the bar in 1939 and immediately left to join the AIF. He and Mr Justice Campbell of the Queensland Supreme Court were the first two honours students to graduate from the Queensland University law school.

For ten years he lectured at the university, mainly in evidence. He developed an unusually popular following among students being regarded as one of those rare creatures, a lecturer whose classes were a delight to attend.

He practiced principally in the civil and appellate jurisdictions, and Sir Owen Dixon was known to have regarded him as one of the best appellate lawyers in the country. His argument was always characterised by a precision of language and an economy of authorities.

Gibbs did little criminal work, but Dan Casey, the undisputed leader of the Brisbane criminal bar for many years, saw Gibbs, give - for a lawyers' lawyer - one of the best jury addresses he had ever heard. Gibbs lost the case because, even though the lawyers were impressed, the jury was quite untouched.

Gibbs sat on the Queensland Supreme Court for six years from 1961, and then on the Federal Court of Bankruptcy and the Supreme Court of the ACT for three years before going to the High Court.

His relatively brief stint as a judge in bankruptcy was made famous by his tipstaff, a man fond of keeping track of his investments by sitting in court listening to the races on the radio through an ear plug. On one occasion this sterling fellow was rudely interrupted while plugged into a gripping finish of the third at Eagle Farm by His Honour's request for a law report.

He leapt to his feet to attend to his master's request, dislodging the ear piece from the radio and, in the process, treating the court to a full-volume description of the final leg. 

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JUSTICE Gibbs' time as a Supreme Court judge was distinguished by his role as the Royal Commissioner in the 1963-64 inquiry into the activities of the police and the National Hotel.

The National Hotel had been a notorious watering hole. Not only could you invariably get a drink after hours, but there were allegations that a call-girl service was operating from the establishment, with police approval.

Mysteriously, Gibbs found no evidence of police involvement in any rackets and exonerated those under suspicion, which included men who subsequently reached the highest levels of the Queensland police force.

Seven years later, Shirley Briffman, one of the witnesses at the Royal Commission declared she has perjured herself in order to save here life and that she was involved in prostitution in Queensland and so were some key police identities.

Some time later Briffman was found to have allegedly committed suicide in Brisbane.

Gibbs' other inquiry while a Queensland judge was as chairman of a committee set up to look at expansion of the sugar industry in 1963.

At that time international sugar prices were high and the industry and the government were keen to study ways to expand production. The government adopted Gibbs' proposal for expansion, but not his recommendations on pricing.

By the time the expansion program was completed the bottom had fallen out of the sugar price.

Among His Honour's more revealing High Court decisions is his leading judgement in what is known as the Queen of Queensland case

The Bjelke-Petersen government had passed legislation which sought to establish a direct link between Queensland and the Privy Council. The High Court over-ruled the Act and Gibbs' reasoning had a very flexible, almost intangible, quality about it.

It gave the lie to the belief that he was purely a strict constructionist. 

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HIS wife, Lady Muriel, affectionately known to some as Lady Moo, is famous for her delicious mango and peach chutney, while his young son, Harry Junior, had a reputation for losing vast amounts of pocket money in poker games with tipstaffs.

Young Harry is now a medical student and plays in a rock band called Deborah and the Daggers. The eldest Gibb daughter has recently returned from touring Europe with the Circus Oz troupe, and made a particularly splendid splash at there father's swearing-in as Chief Justice sporting a pink and orange hairdo.

Even though the court has moved to Canberra, Sir Harry has left an indelible mark on the Sydney landscape.

The all-night newspaper vendor at Taylor's Square near the old court bears an uncanny resemblance to His Honour, what with his glasses, slightly protruding teeth and the same model felt hat.

The High Court staff have a strong suspicion that this purveyor of assorted soft-ore porn and first editions of The Sydney Morning Herald could be Gibbs himself doing a spot of moonlighting in the real world.

Those who hold to this suspicion are often heard to cry out as they pass the bewildered fellow, "Evening Sir Harry".