Australian Dictionary of Biography

Victor Windeyer, n.d.

National Library of Australia, nla.pic-vn3116745

Sir William John Victor Windeyer (1900-1987), soldier and judge, was born on 28 July 1900 at Hunters Hill, Sydney, eldest of four children of Sydney-born parents William Archibald Windeyer, solicitor, and his wife Ruby Millicent née Le Gay Brereton, daughter of John Le Gay Brereton and sister of John and Ernest.  Victor’s family had a strong tradition in the law and public service.  He was the grandson of Sir William Charles Windeyer and Mary Windeyer, and the great-great-grandson of Charles Windeyer.

Educated at Sydney Grammar School, Windeyer is remembered for his enthusiasm for soldiering in the school cadet corps in which he rose to cadet officer.  His keen sense of service caused him to leave school and enlist in the Australian Imperial Force the day after his eighteenth birthday.  He went to training camp but the Armistice was declared before he was sent overseas.  In 1919 he entered the University of Sydney (BA, 1922; LL.B, 1925; MA, 1945).  He won the university medal in history in 1922.

In 1919 Windeyer joined the Sydney University Scouts Citizen Military Forces.  He was a good marksman and horseman.  Commissioned in 1922, he progressed to captain (1924) and major (1929) and on 1 July 1937 was promoted to lieutenant colonel and appointed commanding officer of the renamed (1927) Sydney University Regiment.  As an officer he was reserved and a strict disciplinarian.  Sir Frederick Chilton, in later life a fellow officer and friend, remembered first meeting an erect, stern-looking man.  Windeyer was not popular but was respected by the men and regarded as an excellent leader.

Windeyer took command in 1930 of a platoon in the Old Guard, an organisation not to be confused with the more public and more extreme New Guard.  Its objects—to assist in 'the maintenance of law and order' and to uphold 'the Constitution under which we work and live'—were focused on the politics of J. T. Lang and the activities of the New Guard.  The Old Guard dissolved after Sir Philip Game dismissed Lang in May 1932.

On the declaration of World War II in 1939, Windeyer applied for an appointment in the AIF but was refused on medical grounds.  He persisted, accepting demotion to major to aid his purpose, and succeeded on 1 May 1940.  In August he was promoted to lieutenant colonel and sent to South Australia to raise and command the 2/48th Battalion, the most highly decorated Australian battalion in the war.  It was not usual for a commanding officer to be appointed from another State and Windeyer quickly gained the respect and affection of the South Australians.  He led the unit in the defence of Tobruk, Libya, from April to October 1941, winning the Distinguished Service Order for his inspirational courage and example.  At Tobruk his brother Frank, a captain in the 2/17th Battalion, was mortally wounded.

In January 1942 Windeyer was promoted to temporary brigadier and placed in command of the 20th Brigade.  John Glenn, in his history of the 2/48th, recorded the unit’s unanimous regret at 'the departure of a very fine man and splendid soldier'.  Chilton later observed that 'the war was very good to Victor':  he became more relaxed in his dealings with others.  The 20th Brigade took a prominent part in the crucial battle of El Alamein, Egypt, between 23 October and 4 November 1942.  Windeyer’s tactical skills earned him a Bar to his DSO.

The brigade returned to Australia and, after jungle training, deployed to New Guinea.  Windeyer’s abilities were again demonstrated at the landing east of Lae and the assault on Scarlet Beach in September 1943, the taking of Finschhafen and nearby high ground in October-November and the advance to Sio from December to January 1944.  He was regarded as a versatile, thinking brigade commander of the highest quality, one of the best in the Australian army.  John Coates remarked of him, 'In style he was fair, firm, friendly, and a great communicator', and of the campaign at Finschhafen, 'It is doubtful whether anyone else could have steered his small force with its multiple challenges more successfully than he had. He was precise, unruffled, and resolute, and faced each new problem optimistically'.  Windeyer was appointed CBE (1945).  The 20th Brigade saw action in Borneo in 1945, capturing Brunei in June.

After the war Windeyer resumed his CMF service.  In 1950 he was promoted to temporary major general (substantive, 1 January 1951) and thereafter spent three years as commander of the 2nd Division and CMF member of the Military Board.  He was appointed CB in 1953 and was honorary colonel of the Sydney University Regiment in 1956-66.

Admitted to the New South Wales Bar on 14 May 1925, Windeyer had established a wide-ranging practice, which in later years was predominantly in equity and commercial law.  He was known to be thorough, so more difficult work was briefed to him.  Appointed King’s Counsel in 1949, he appeared in the High Court and Privy Council.  That year he unsuccessfully sought Liberal Party preselection for the Senate.

While practising at the Bar, Windeyer lectured in the faculty of law, University of Sydney, in legal history (1929–36), legal ethics (1933–40) and law of equity (1937–40).  He wrote The Law of Wagers, Gaming and Lotteries (1929) and Lectures on Legal History (1938), the latter becoming a standard textbook well known to generations of law students.  In 1933 he represented Australia at the British Commonwealth Relations Conference at Toronto, Canada, returning home via England and Europe.  On 10 July 1934 at the Presbyterian Church, Beecroft, he married Margaret Moor Vicars.

The most notorious of Windeyer’s cases was as counsel assisting the royal commission on espionage (1955).  Established—after the defection of Vladimir Petrov and his wife from the Soviet Embassy, Canberra, on 3 April 1954—to enquire into methods of Russian espionage in Australia, it was a forensic exercise quite removed from Windeyer’s usual practice.  Yet his description of Document J—written by Rupert Lockwood, a member of the Communist Party of Australia—as a 'farrago of fact, falsity and filth' has endured.

Interested in education beyond lecturing and writing, Windeyer was a member (1943-70; vice-chairman, 1952-57) of the board of trustees of Sydney Grammar School.  He was a fellow of the senate (1949–59) and deputy-chancellor (1955–58) of the University of Sydney, and a member (1951-55) of the council of the Australian National University, Canberra.

Windeyer held directorships in Colonial Sugar Refinery Co. Ltd (1953–58), Mutual Life & Citizens’ Assurance Co. Ltd (1954–58) and Commercial Union Assurance Co. Ltd (1956-58).  He was a director in the 1950s of Royal Prince Alfred Hospital, Sydney.

On 8 September 1958 Windeyer was appointed a justice of the High Court of Australia and, next month, KBE.  His detractors attributed the appointment to his role in the Petrov royal commission but they overlooked his personal qualities that the Australian Law Journal said commanded 'the respect of his colleagues in the law', and his 'legal knowledge . . . wide experience and [his] cultivated mind'.

Although Windeyer tended to be conservative in his personal life and beliefs, as a justice he was less traditional than many of his colleagues.  He was a member of a particularly strong court.  Frequently cited, his judgments testify to his knowledge of and interest in legal history, and to the broadness of his intellect.  On 19 February 1963 he was sworn of the Privy Council and sat as a member of its Judicial Committee in 1972.

As a legal historian Windeyer was conscious of the dynamism of the common law 'to grow and develop as the needs of men change'.  Concerned to link law with the development of society, he had written in Lectures on Legal History:  'Law is not in essence a body of technical rules, uncouth formulae, and inexorable commands . . . It is that which makes it possible for men to live together in communities, to lead a peaceful, organised, social life'.  Quoting Oliver Wendell Holmes, Windeyer believed that 'a page of history is worth a volume of logic'.

In Some Aspects of Australian Constitutional Law (1972) Windeyer wrote that 'the law of a people . . . governs their lives and reflects their history'.  He advocated the need in constitutional law for an appreciation that 'legalism . . . demands [a] consistency that is the product of the application of constant principle to contemporary needs in developing circumstances'.  In constitutional cases he was either a member of the majority or of a sizeable dissenting minority, but his reasoning was distinct from that of other justices.  His judgments indicated a nationalist approach and a concern to ensure a single nation, united economically.  They reflected his pragmatism, an alternative to the legalism often associated with the High Court under Chief Justice Sir Owen Dixon.  Windeyer did not seek to find in the Constitution safeguards of individual rights and liberties.

On 29 February 1972 Windeyer retired from the High Court.  In March Justice (Sir) Ninian Stephen stated that Windeyer’s 'great scholarship and mastery of the written word have long turned law into literature'.  A long-time chairman of the Gowrie Scholarship Trust Fund, vice-president of the Selden Society, London, and honorary member of the Society of Public Teachers of Law (UK), Windeyer was president (1970-78) of the New South Wales Boy Scouts’ Association.  He was awarded the honorary degree of doctor of laws (1975) by the University of Sydney and was an honorary fellow (1976) of the Royal Australian Historical Society.

Survived by his wife and their daughter and three sons, Sir Victor died on 23 November 1987 at Wahroonga, Sydney, and was cremated after a service in St Andrew’s Cathedral.  Sir Anthony Mason recalled that Windeyer’s 'profound understanding of the law [stemmed] from his appreciation of its historical development' and that 'his knowledge of literature and the classics strengthened his capacity to articulate the law and explain its place in society'.