This article was published in Australian Dictionary of Biography, Volume 15, (MUP), 2000
Sir Thomas John Mellis Napier (1882-1976), judge, was born on 24 October 1882 at Dunbar, East Lothian, Scotland, third son of Alexander Disney Leith Napier, medical practitioner, and his wife Jessie, née Mellis. The family moved to London in 1887 where Mellis attended the City of London School. In 1896, after the medical superintendent and honorary staff of the Adelaide Hospital had resigned because of a dispute with Charles Kingston's government, Alexander Napier ignored a British Medical Association black ban, accepted an appointment as the hospital's senior resident physician and emigrated to South Australia with his elder children. The rest of the family followed after Mellis completed his schooling. It was an inauspicious beginning. Dr Napier was ostracized by Adelaide 'society' and never forgiven for his role in keeping the hospital open.
On 17 December 1898 Mellis was articled to Kingston. He studied law at the University of Adelaide (LL.B., 1902; LL.D., 1959) and was admitted to the Bar on 24 October 1903. Managing clerk (1903-05) for the legal firm of Kingston & McLachlan, he joined A. J. McLachlan in partnership in 1906. He first made his mark as junior counsel for the plaintiff in Billiet v. The Commercial Bank of Australasia Ltd. Continued study and painstaking preparation gave him a 'rapid ascendancy' over his contemporaries at the Bar. At St Andrew's Anglican Church, Walkerville, on 24 October 1908 he had married Dorothy Bell Kay (d.1959).
In 1912-13 Napier and Thomas Poole resuscitated the Law Society of South Australia; Napier was to become its vice-president (1923). In 1917 he entered the firm of Glynn, Parsons & McEwin, which later amalgamated with Baker & Barlow. Napier also lectured (1921-22) part time and examined at the university's law school. In 1921 he took silk. He handled several briefs from the crown solicitor to the Barwell government's satisfaction and in February 1924 was appointed a Supreme Court judge. On the bench, he was noted for the erudition he displayed in Equity and testamentary cases, but he became better known for his view that the law must be 'a servant of the people' and 'adapted to the needs of changing circumstances'.
The Australian Labor Party made bank nationalization a central feature of its Federal election campaign in 1934, claiming that the banking system had been responsible for the Depression. The Country Party joined in criticism of the banks. In 1935 Napier was appointed chairman of a royal commission to inquire into the nation's monetary and banking systems. While bankers like Sir Ernest Wreford perceived the commission as 'an expedient to stifle Labor and Country Party politicians', Prime Minister Lyons knew what he was doing.
Napier's fellow-commissioners—J. P. Abbott, J. B. Chifley, R. C. Mills, H. A. Pitt and (Sir) Edwin Nixon—complemented his talents and he proved an inspirational chairman. The commission examined more than two hundred witnesses and gathered almost 1800 pages of evidence; it also studied the activities of the private and State banks, and those of a range of finance, investment and assurance companies. It recommended the maintenance of a strong central bank to regulate credit, the appointment of an independent governor of a restructured Commonwealth Bank of Australia, selection of its board-members for their 'capacity and diversity of experience and contact, and not as representatives of special interests', and the cementing of ties between the government and the central bank.
The thirty recommendations embodied in the commission's report (presented in July 1937) became the basis of the regulatory system progressively enacted by Federal treasurers between 1939 and 1959. While every commissioner expressed reservations and qualifications about some of the recommendations, it was a measure of Napier's triumph that Chifley was happy to sign the report. They remained firm friends. (Sir) Robert Menzies was also impressed. Although the prime minister was disappointed when Napier refused (1939) an appointment as chief judge of the Commonwealth Court of Conciliation and Arbitration, he used wartime emergency regulations to start implementing the commission's recommendations on banking. Knighted in 1943, Napier was appointed K.C.M.G. in 1945.
Napier had succeeded Sir George Murray as chief justice of South Australia in February 1942. He ran a relaxed court. He also allowed his colleagues to appear in the streets without their traditional top hats, frock-coats and silver-topped canes, and, for the first time, to dine, smoke and have their hair cut in public establishments. Following Murray's example, he lunched with his puisne judges every weekday to discuss current cases. Consequently it was not until 1960 that one of his judgements was reversed on appeal to the Full Court. Meanwhile, senior counsel concluded that it was necessary to go to the High Court of Australia or the Judicial Committee of the Privy Council to obtain an independent review of his decisions.
In 1959 Napier was appointed chairman of a royal commission to determine whether a case existed for granting a new trial to Rupert Max Stuart, who had been convicted of the rape and murder of a 9-year-old girl near Thevenard. Stuart's lawyers had failed in their attempts to persuade the Full Court, the High Court and the Privy Council to quash the verdict. The case engendered great passion: Stuart was an Aborigine and had a limited command of English; there had been allegations of police brutality; he had been sentenced to death at a time when there was growing opposition to capital punishment; and Premier Sir Thomas Playford had rejected pleas that the sentence be commuted to life imprisonment.
Napier was criticized for his involvement in the commission because he had presided over Stuart's appeal to the Full Court. He defended himself by citing Australian and British precedents. Yet, given the peculiar circumstances, he showed a lack of political acumen in agreeing to sit on the commission. He drew further fire when, on the morning his wife had collapsed from a stroke which proved fatal, he lost patience with Stuart's counsel for relentlessly cross-examining a witness. Napier immediately corrected himself, but he was hounded for the lapse. After Playford finally commuted the death sentence, the situation was defused, and the commission's finding that a new trial was unwarranted met with general acceptance.
Among new colleagues in the 1960s, Napier often found himself in the minority on the Full Court. He retired on 1 March 1967. Throughout his forty-three years on the Supreme Court bench, he sought to ascertain the essential justice of each case that came before him, and then constructed a legal argument to support his decision. The High Court and the Privy Council almost invariably upheld his judgements, a number of which were adopted by English judges as proper developments of the common law.
Short in stature, Napier had a cherubic face, a great sense of humour and a lively interest in community organizations. He was State president (1938-48) of the English Speaking Union, grand master (1928-30, 1935-39) of the Grand Lodge of Antient, Free and Accepted Masons of South Australia, and patron of the National Trust of South Australia. President (K.St.J., 1948) of the St John Ambulance Association from 1942, he promoted the amalgamation of the State's ambulance services and served as president (1950-76) of the St John Council. In 1956 the University of Melbourne conferred on him an honorary LL.D. As lieutenant-governor (1942-73) of South Australia, Napier administered the government on 179 occasions, totalling almost nine and a half years—longer than any governor of the State. He enjoyed presiding over the Executive Council, wearing his ceremonial cocked hat on parade, and living in Government House.
While chancellor (1948-61) of the University of Adelaide, Napier helped to gain additional funding from the State government and backed sweeping reforms demanded by A. P. Rowe, the university's vice-chancellor. In 1959-60 Napier frustrated attempts by the council's conservatives to block the appointment of George Rudé, a communist, as senior lecturer in history, and the promotion to reader of K. S. Inglis, who had criticized Napier's role in the Stuart commission. In each case Napier told the candidates' sponsors: 'If you say this is an honest scholar doing his job in an honest way then I will support you'.
Adelaide's gentry had been slow to accept Napier for they did not approve of his work on the banking commission. In 1952, when he was nominated as president of the Adelaide Club, several medical men unsuccessfully lobbied against his election because he was the son of 'that dreadful Dr Napier!' Sir Mellis remained grateful to Kingston, who had given him the chance to study law, and to whose training he attributed his success in drafting statutes such as the Justices Act (1921), the Evidence Act (1925) and a new Supreme Court Act (1926). Survived by two sons, he died on 22 March 1976 at Kingswood; his other son Keith had been killed in 1944 while serving with the Royal Australian Air Force. Napier was accorded a state funeral and was cremated. A building at the University of Adelaide was named after him. John Dowie's bust of Napier stands near the gates of Government House, Adelaide.
P. A. Howell, 'Napier, Sir Thomas John Mellis (1882–1976)', Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography/napier-sir-thomas-john-mellis-11220/text20005, published first in hardcopy 2000, accessed online 28 February 2017.
This article was first published in hardcopy in Australian Dictionary of Biography, Volume 15, (MUP), 2000