Australian Dictionary of Biography

Frank Gavan Duffy (1852-1936), by unknown photographer, 1900s

National Library of Australia, nla.pic-an23609484

Sir Frank Gavan Duffy (1852-1936), chief justice, and Charles Gavan Duffy (1855-1932), public servant, were born on 29 February 1852 and 26 August 1855 in Dublin, first and second sons of (Sir) Charles Gavan Duffy and his second wife Susan, née Hughes. They came to Victoria with their parents in 1856. Frank was sent to England to attend Stonyhurst College, Lancashire, from 1865 to 1869. His education continued at the University of Melbourne, where he graduated B.A. in 1872 and obtained both his M.A. and LL.B. in 1882, having won the Bowen prize in 1874. While studying he worked for a time as a clerk in the public service. On 3 April 1880 at St Mary's Catholic Church, St Kilda, he married Ellen Mary Torr.

In 1874 Duffy was admitted to the Bar. After four briefless years he gradually began to make a name for himself, first in the County Court and later in the Supreme Court. He often appeared with, or against, the redoubtable James Purves; they were regarded as the best trial lawyers of their time. Duffy took silk in 1901 and after Purves died in 1910 was the only K.C. in Melbourne.

Duffy was considered a sound lawyer, but his outstanding gift was as an advocate. It was said of him by Sir Owen Dixon, that he practised advocacy with extraordinary success and could make bricks without straw in open court. The other attributes for which he was renowned were a sharp wit and a keen sense of humour. He practised these gifts with much charm, aided by an easy eloquence and brilliant reasoning, which were conveyed forcefully and with speed. He was a formidable protagonist in court and a powerful cross-examiner. Yet he was never unfair to witnesses or parties. These qualities no doubt contributed to his wide popularity among his colleagues in the legal profession.

Among the noteworthy cases in which Duffy appeared was his defence in 1892 of the land speculator, Sir Matthew Davies. (Duffy, himself involved in the crash following the land boom, paid his creditors 3d. in the £ at the time and gained a clear discharge; years later he was able to pay these debts in full.) In 1893 he appeared for Richard Speight, commissioner for railways, in a libel action against David Syme of the Age, which went for eighty days and involved a claim for £25,000. After Federation he often appeared on behalf of the Commonwealth in constitutional cases in the High Court of Australia.

Duffy's busy practice did not prevent him from lecturing in contract and property at the university. He was also the author of a number of legal textbooks. In 1879 he founded the Australian Law Times, and in 1907 became the editor of the Victorian Law Reports.

In February 1913 Duffy was appointed to the vacancy on the High Court caused by the death of Mr Justice Richard O'Connor. His appointment was followed by the creation of two new judges, (Sir) Charles Powers and (Sir) George Rich. These three appointments initiated a new phase in constitutional interpretation. The two surviving original members of the court, Chief Justice Sir Samuel Griffith and Sir Edmund Barton now consistently found themselves in a minority. The new appointees tended to support (Sir) Isaac Isaacs and Henry Bournes Higgins in applying common law principles of statutory construction to the Constitution, rather than relying on preconceptions based on participation in the Federal Convention debates. As time went on, however, Duffy's views showed an increasing State-rights orientation, as is shown by his dissents in leading constitutional cases, most notably in the seminal Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd (Engineers') case (1920) which cleared the way to an expansionist view of Federal powers.

On the swearing-in of Sir Isaac Isaacs as governor-general on 22 January 1931 Duffy, now 78, was appointed chief justice, in which office he was to continue for nearly five years. There had been some speculation that the Labor government would appoint Mr Justice Bert Evatt who had not long been on the bench. Duffy's appointment was seen as a rebuff to the militant section of caucus. In 1929 he was appointed K.C.M.G. and in 1932 a Privy Councillor. He retired in October 1935 and died on 29 July 1936, survived by his wife and three sons, of whom the eldest was (Sir) Charles Leonard; a daughter and three sons predeceased him. Shortly before his death he accepted an invitation to take part in the tercentenary celebrations of Harvard University, but did not live to do so. His portrait, by William McInnes, hangs in the High Court building in Canberra. Another, by P. I. White, is in the possession of the Victorian Bar.

Duffy, by inclination a liberal but never active in politics, refused Senate nomination when it was offered to him. Among his outstanding qualities were his great kindness, as well as his extensive learning. He was said to have enjoyed hunting and to have been a crack shot in younger years. He was fluent in French and Italian. His poem 'A dream of fair judges', a parody of Tennyson's 'A dream of fair women' which he published, under the pseudonym 'Vie Manquée', in June 1892 in the Summons, the journal of the Melbourne Articled Law Clerks' Society, caused a considerable stir in legal circles and was remembered for many years.

His brother Charles Gavan attended St Patrick's College, Melbourne, and Stonyhurst College. He studied law at the University of Melbourne, graduating LL.B. in 1880, and was admitted to the Victorian Bar in the same year, but never practised. In 1871 he joined the staff of the Victorian Chief Secretary's Office and acted as private secretary to his father who was then premier. In 1878 he transferred to the Legislative Assembly as assistant clerk of committees and private secretary to several successive Speakers, being appointed clerk assistant of the Legislative Assembly in 1891. He acted as assistant secretary to the Australasian Federal Convention of 1897 and assisted (Sir) Robert Garran in putting the final corrections to the Commonwealth Constitution. For his part in this work he was appointed C.M.G. in 1904.

After Federation Duffy moved to the Commonwealth Public Service and in May 1901 became clerk assistant in the Senate, and in July clerk of the House of Representatives. He served as secretary to the Federal War Committee in 1915-16 and was clerk of the Senate from 1917 to 1920, when he retired. Duffy married Ella, daughter of Allan McLean, later premier of Victoria, on 18 April 1893, and had one son. Duffy died on 23 February 1932, and was buried in Boroondara cemetery.

Charles Gavan Duffy was well known for his exceptional knowledge of parliamentary procedure. He was the author of Speakers' Rulings 1856-7 to 1893 and of Index to Resolutions Passed in the Legislative Assembly of Victoria.