Seminal events can pass unseen in their time. It takes a rare talent to find them, tease them out and reveal them for what they are, which is Gideon Haigh’s achievement in The Brilliant Boy, his haunting, compelling account of the High Court career of Herbert Vere Evatt.
In the words of English jurist Lord Denning, quoted by Haigh, judges are either “timorous souls” who oppose any deviation from current wisdom, or “bold spirits” exploring all avenues to achieve justice within the law. Evatt was squarely in the latter camp.
That bold spirit took him into international diplomacy. As external affairs minister in the 1940s under John Curtin and Ben Chifley, he was a leader in setting up the United Nations and drafting its Universal Declaration of Human Rights. Three-quarters of a century later the value of that declaration in the cause of justice is clearer than ever.
Most people, including me, know little about the law, but every adult and child who ever said “it isn’t fair!” knows about justice. Many lawyers, my learned friend Greg Barns among them, put a huge personal effort into bringing the two closer together.
Inability of courts to deal with fresh evidence is now widely seen in Australia as a breach of human rights obligations, and most states have already changed their laws. In 2015 the late Vanessa Goodwin as Tasmania’s attorney-general established a new avenue for appeal, enabling Sue Neall-Fraser to challenge her murder conviction.
I wrongly thought Lindy Chamberlain had murdered her baby Azaria 40 years ago, before a new trial established her innocence. In NSW, which so far has resisted allowing new trials to hear new evidence, we now have Kathleen Folbigg, widely condemned as a serial killer in 2003 over the deaths of her four infant children over a 10-year period.
After a review of the case found against Folbigg, a 2020 study by 27 scientists published in a leading international medical journal found genetic evidence of her innocence. This year, 90 eminent genetic and medical scientists and others, including Nobel laureates and former chief scientists, petitioned the NSW government for a new trial, so far without response.
For each of these very public criminal cases, there are many more where public auathorities or well-funded private interests have been able to use their considerable resources to avoid proper scrutiny, which is where the case of Chester v the Council of the Municipality of Waverley comes into the story.
It concerns Max Chester, son of poor Jewish-Polish migrants and his family’s hope for their future. His father, Chaim Sochaczewski, picked a new family name name out of a Sydney phonebook.
In 1937 Max, aged seven, fell into an open rain-filled council trench while playing in the street near his Sydney home. Hours of searching ended when Max’s lifeless mud-covered body was fished out in the presence of his horrified mother, Golda.
Abram Landa, a young Jewish lawyer and politician, argued in court that Waverley Council was liable for Golda’s shock and distress. The jury agreed but the council successfully appealed, which is how it came before Evatt and his fellow High Court judges 18 months later.
In Australia in the 1930s the law was customarily regarded within the profession, and especially within the ranks of the judiciary, as synonymous with keeping order. In brief, dismissive judgments, all of Evatt’s High Court colleagues hearing the Chester case found that the local council could not be held responsible for the mother’s “nervous shock” at seeing her drowned son, and that anyway people tended to recover quickly from such experiences.
In his solitary 6000-word dissenting opinion that is now a classic of tort law, Evatt begged to differ. Without his saying so, his dissent laid bare the laziness and arrogance that lay beneath the majority judgements. Step by painstaking step, with impeccable logic, he described in minute detail the impact suffered by Max’s mother – not just the immediate shock but also the enduring pain and suffering – and why her trauma should be treated like any plainly obvious physical injury.
Evatt made the effort to imagine himself as Max’s mother – and by extension every member of every family of every negligence victim – to acknowledge their agony at the loss of one of their own. On the High Court bench, he alone recognised the condition we now call post-traumatic stress disorder.
But he was decades ahead of his time. The attitude of the legal and political elite of Australia toward mental suffering continued unchanged. To have acknowledged it as real would have disturbed the order of things.
After losing her son and the High Court appeal, Golda Chester lost her entire European family to the Nazis in the early 1940s. Under psychiatric care in 1949, still grieving over her family’s loss of its “brilliant boy”, she hanged herself. Her lonely death went unnoticed by all but her immediate family.
Evatt died in 1965. Seventeen years later the wisdom of his dissent was duly recognised, not by his Australian peers but by none other than England’s House of Lords, looking into a similar case in the UK. At which point our own High Court quickly got its act together, encouraged an appropriate test case and found in 1984 – almost half a century after Evatt’s dissent – that the wretched man had been right after all.
Fading memories of “Doc” Evatt – he was awarded a rare doctor of law in 1924 – are dominated by his repeated, doomed efforts as federal opposition leader to defeat Robert Menzies at the polls. At a stretch people might remember how he exposed the limits of Menzies’ claim to liberalism by successfully leading the campaign to kill off the new Liberal government’s 1950 Communist Party Dissolution Act.
In resurrecting the Evatt that really matters – a jurist who thought outside his own privileged box and reached out to the neglected and downtrodden, the “Son of Australia” carved on his tombstone – Haigh has produced what is surely the best of his long list of literary accomplishments and an important addition to the annals of Australian legal history.