Surprise

Sir Kenneth Jacobs, former justice of the High Court of Australia, died, aged 97, this year.

I expect Jacobs’ death will have come as a surprise to many, as it did to me for the simple reason that I assumed he was already dead.  The authors of this obituary of his elder sister, Marjorie Jacobs, who died in 2013, appear to have overlooked that he survived her.

Jacobs was born in 1917 but because of the war had a career that ran on similar lines but mostly in advance of the career of Anthony Mason, born in 1925.  Jacobs was Mason’s predecessor as Challis Lecturer in Equity at the University of Sydney (during which time he wrote the text that still bears his name: Jacobs on Trusts) and preceded Mason to the NSW Supreme Court and Court of Appeal.  Mason was appointed to the High Court from the NSW Court of Appeal by the McMahon Government in 1972.  Jacobs was appointed to the High Court by the Whitlam Government in 1974.

At his swearing-in, Jacobs’ reputation as a judge of liberal views and wide cultural interests beyond the law, particularly in art and music, was acknowledged. When he was subsequently welcomed in Melbourne by the Chairman of the Victorian Bar, Richard McGarvie QC, he was described as a judge of independent and forward-looking mind who placed great importance on civil liberties.

In April 1979 Jacobs resigned from the High Court.  He had been ill and had not sat on any cases in that year. Jacobs was diagnosed with stomach cancer and told he had only a few months to live.  Reportedly, the then chief justice, Garfield Barwick, did not want him to retire and urged him to take a period of leave to see what happened, but Jacobs (who had previously been a judge of the NSW Supreme Court and Court of Appeal which he left as President) took the view that it would impose an unfair burden on other justices to leave the court a judge down.

Cancer turned out to be a misdiagnosis.  Jacobs saw another specialist and was told he had diverticulitis (a very “in” ailment at the time).  He recovered.  It must have been a bit embarrassing and his eventual survival for a further 36 years even seems mildly comical.  It happens.

Since then, a number of other judges have had lengthy absences from the bench owing to illness.  Perhaps his example has deterred any premature resignations.

Jacobs moved to England in the early 1980s (according the The Australian).  His wife, Eleanor, whom he had married shortly after the War (she was a widow – I infer a war widow – with a young son; they also had a daughter) died in 2002.

Jacobs must have been a sprightly octogenarian as in 2007 he graduated with an MA in Classics from the University of London (that’s a bit non-specific – London has many parts – but it’s the best my source provides).

It seems that over the years various Australians popped in to visit him in England, including James Allsop and that inveterate judicial socialite, Michael Kirby.  The National Library has an oral history interview with him conducted by Peter Coleman in 1996.

Jacobs died in May; news filtered back to Australia in early June; the High Court held a ceremonial sitting in October.  The address was given by Chief Justice French which has since been expanded and published as an article in the NSW Bar News, from which I have filched the bit above about Jacobs’ swearing-in and the remarks by McGarvie. The expanded version also held, to me at least, one last surprise:

The court extends its sympathy upon the death of Sir Kenneth to his daughter, Rosemary Henderson, his stepson, Peter Stewart,and his partner since 2008, Christopher Horodyski.

 

 

 

 

Tags: ,

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s


%d bloggers like this: