Australian Dictionary of Biography

Sir Leo Finn Bernard Cussen (1859-1933), judge, was born on 29 November 1859 at Portland, Victoria, fourth surviving son of Maurice Cussen (d.1880) and his wife Margaret, née Finn. Maurice Cussen had been head tenant at Creveen House on the Rattoo estate in County Kerry, Ireland, before migrating to Sydney in 1841. He established himself as a grocer and provision dealer in Sydney and married in May 1850. In 1854 he joined his brother-in-law at Portland, Victoria, where he set up business as a grocer and general dealer. In 1860 the family moved to the near-by township of Merino.

Leo was educated at the local school and, after winning a scholarship, entered Hamilton College as a boarder in 1875. He became captain of the school next year, when he matriculated with credits in mathematics. In 1877 he entered the University of Melbourne, completing his certificate in civil engineering in 1879. Cussen played for the university football and cricket teams, and was awarded a full blue for cricket in 1879. He also played football for West Melbourne and took part in amateur athletics. On graduation he joined the Victorian Railways and after a year as a draftsman went into the field with assistant engineer W. Curtois. He worked on surveys of several important lines, including Ballan to Bacchus Marsh, and reported on the feasibility of a line from Alexandra to Mansfield through the Puzzle Ranges. Cussen later recalled: 'I liked the life, and the survey camps were comfortable. I grew as strong as a horse with the open-air life. The excessive walking spoilt me as a runner, but it seemed as if I had left athletics behind me'.

At 25 he decided to become a lawyer. He returned to the university, completing his B.A. in 1884 and the first and second years of his law degree in 1885-86 (LL.B., 1886; M.A., 1887). On 1 September 1886 he was admitted to the Victorian Bar. He read with (Sir) John Madden and occupied 35 Selborne Chambers. To supplement his earnings after graduation, he taught international law at the university; between 1890 and 1900 he also lectured in the law of obligations. He wrote legal articles and in 1897 was reputedly the first Victorian to have an article published in the London Law Quarterly Review. He also became a reporter for the Australian Law Times and the Victorian Law Reports.

Working long hours, Cussen soon became one of the most sought after and highly paid barristers, renowned for thorough preparation, clarity of argument and sound knowledge of legal principles. He developed a wide-ranging practice, with the exception of criminal law; his engineering experience led him to specialize in local government, patent and engineering cases. He quickly emerged as a leading counsel among a strong Bar which included such men as James Purves, (Sir) Isaac Isaacs, Henry Bourne Higgins, Frank Gavan Duffy, (Sir) William Irvine and Theyre à Beckett Weigall. In 1901 and 1902 Cussen was elected to the Bar committee.

He achieved a remarkable reputation for advocacy, opinion and wit. Anecdotes abound from this period. 'It almost became a maxim that if a solicitor had a difficult case and did not consult Cussen, he was guilty of negligence'. However he never took silk, preferring to remain a stuff gownsman along with others such as (Sir) Hayden Starke. While taking no part in the Federal constitutional conventions of the 1890s, he harboured some interest in politics and in 1901 stood for the House of Representatives seat of Wannon, his childhood country. Samuel Cooke soundly defeated him.

On 8 April 1890 at St Mary's Cathedral, Sydney, Cussen had married Johanna, daughter of John Bevan; they raised six sons and one daughter. In 1903 he took his wife and two sons for the first of his three trips to Europe, Great Britain and Ireland, and developed interests in church architecture, music and art.

In March 1906 (Sir) Thomas Bent's government appointed Cussen to the Victorian Supreme Court. Cabinet was divided over the matter but the appointment was warmly welcomed by bench, Bar and the press, which noted that he was a popular and genial figure with the reputation of being the 'hardest worked and perhaps highest paid of present Melbourne barristers'. His salary of £2500 represented a considerable financial sacrifice; it was not reviewed or raised during his twenty-seven years on the bench. His work is recorded in many important judgments in the Victorian Law Reports. He was a judge for both the parties and the profession, deciding cases with insight and with just discrimination of fact and argument. He was a master at summing up to a jury and discussed and developed with precision and scholarly thoroughness legal principles involved in cases before him, thereby often setting the law on a solid basis for years ahead. In 1924, and again in 1931-32, Cussen was appointed chief justice in the absence of Irvine.

Apart from these judicial contributions, Cussen undertook massive projects of statutory consolidation for the Victorian parliament. This he did in his spare time, entirely gratuitously, and probably at the expense of his health. In 1908 he began working, almost single-handed, on the Victorian statutes. The task had twice previously been carried out by George Higinbotham, in 1865-66 and 1890, but much new legislation required attention. Cussen modernized the language of many provisions, and included many amendments and valuable and substantial annotations. The finished work, in five volumes, appeared in 1915. For this achievement, he was thanked by both Houses of the Victorian parliament.

Three years later Cussen began work on an even larger and more complex task of statutory consolidation, which culminated in the Imperial Acts Application Act of 1922. This project involved an exhaustive and definitive examination of over 7000 English and Australian Acts dating back to the thirteenth century, to determine exactly which English and colonial Acts were applicable in Victoria. He was assisted by Professor (Sir) Harrison Moore. On completion of this work Cussen was given leave of absence to recover his health, for he had undergone surgery earlier in 1922 to remove part of the large intestine. Now Sir Leo Cussen—he had been knighted in January—he took his wife and daughter on an extensive tour of Europe.

In 1929 Cussen completed his second consolidation of Victorian statutes and presented them to the Victorian parliament for enactment. He was assisted by six barristers and acted as editor, taking responsibility for the whole work; as before, he was thanked by parliament for his services. The achievement was, however, marred by a squabble in parliament over whether an honorarium of £2500 be paid, in addition to granting him a year's leave of absence. In the end the government deferred the grant and it was not proposed again. His leave was lengthened to two years (from August 1929), because of illness.

Cussen was a trustee from October 1916 and from September 1928 president of the Public Library, Museums, and National Gallery of Victoria. He was a member of the Felton Bequest Committee and prepared a report on the law of copyright and works of art, which unfortunately has been lost. He was a member of the law faculty of the University of Melbourne for forty-three years and from 1902 a member of the university council. He was also a member of the Council of Legal Education and vice-president of the Walter and Eliza Hall Institute of Research. As president of the Melbourne Cricket Club from 1907 he was noted for his 'tact and kindliness as an administrator' and his ability to preserve harmony and goodwill. At the turn of the century he had regularly represented the Bar in annual cricket matches; as his sons grew up he enjoyed playing cricket with them and with their friends from near-by Xavier College in an adjacent paddock. He followed with interest his sons' sporting careers at school and university. He belonged to the Melbourne, Yorick and University clubs.

On 17 May 1933 Cussen died suddenly at his home in Hawthorn. He had been sitting in court only two days before. A huge public funeral and procession followed, with Archbishop Daniel Mannix presiding at pontifical Mass in St Patrick's Cathedral. He was survived by his wife and children. Of his six sons, one died in boyhood, one became a distinguished Melbourne physician and the others prominent lawyers. In 1964 the Sir Leo Cussen chair of law was created at Monash University and in 1972 the Leo Cussen Institute for Continuing Legal Education was founded in Melbourne. (Sir) Robert Menzies, at Cussen's death, described him as 'one of the great judges of the English-speaking world'. Members of the law profession stressed his deep learning 'unaccompanied by pedantry', his soundness of judgment, dignity of demeanour, humanity, natural courtesy and sense of public duty. Sir Owen Dixon considered it an extraordinary error by governments not to have appointed him chief justice of the High Court of Australia or of the Victorian Supreme Court.

Portraits by John Longstaff are held by the National Gallery of Victoria and by the Victorian Supreme Court Library, and another by William McInnes by the Melbourne Cricket Club.