Australian Dictionary of Biography

Sir Frank Walters Kitto (1903–1994), judge and university chancellor, was born on 30 July 1903 at Malvern, Victoria, eldest of six children of Ballarat-born James Walters Kitto, accountant, and his Fijian-born wife Adi Lillian (Lilian), née Carey. The family relocated to Sydney where, in 1925, his father became deputy-director of posts and telegraphs. Frank attended Mosman Primary and North Sydney Boys' High schools. Awarded an exhibition, he enrolled in the University of Sydney (BA, 1924; LLB, 1927), where he gained first-class honours in law and supported himself by working in the Crown Solicitor’s Office.

Kitto joined the New South Wales Bar in 1927. ‘It was a bleak prospect at first, and he made ends meet by coaching students, lecturing part-time at the Law School, and by writing on law’(Connor 1994, 4). On 27 December 1928, at Mosman Methodist Church, he married Eleanor May Howard. Through hard work and self-discipline, rather than connections, he built a successful practice, notably in equity and taxation law, and High Court of Australia litigation. He was Challis lecturer in bankruptcy and probate at the University of Sydney (1930–33). He took silk in 1942. Standing only five feet three inches (160 cm) tall, and weighing 148 pounds (67 kg), he volunteered for military service that year and served part time as a private (1942–44) in Sydney with the Volunteer Defence Corps.

In 1944 Kitto was successful counsel for the trustees of the Art Gallery of New South Wales in the Dobell case, a cause célèbre over whether (Sir) William Dobell’s depiction of Joshua Smith, which had been awarded the Archibald prize, constituted a portrait. Kitto’s son-in-law, Kevin Connor, would receive the Archibald prize in 1975 for his portrait of Kitto. In 1948 and 1949, Kitto was a prominent member of the team of barristers who appeared for the private banks in the Bank Nationalisation case. The finding of the High Court, affirmed by the Privy Council to which the Commonwealth had appealed, was that the Chifley government’s attempt to nationalise banking was unlawful under section 92 of the Commonwealth of Australia Constitution. Working on this complex case, ‘Kitto was in his element’ (Connor 1994, 9). He proved ‘a principal architect’ of the winning argument (Mason 1994).

The Menzies government in 1950 appointed Kitto a justice of the High Court. On the bench, he embraced the legalism that characterised the court in the 1950s, a position espoused by Chief Justice Sir Owen Dixon, whom he esteemed. Kitto claimed that a judge’s role ‘is not to be defined as a duty to decide fairly, but as a duty to decide correctly’ (Kitto 1992, 793). Within this tradition, his written judgments were highly regarded for their expert legal analysis and literary precision. While accepting that the law was not static, he believed ‘it should be developed “by applied logic from within principles already established”, not by stating that the law is whatever the judge thinks it ought to be’ (Meagher 1994, 479). As a judge, he made a significant contribution to private law, especially equity, but also wrote with authority in public law cases, including the 1951 Communist Party case, where he formed part of the majority that invalidated the Menzies government’s ban on the party. When hearing cases, his interventions with counsel were often ‘caustic’ (Walsh 1970, 11), yet in temperament he ‘was quiet and retiring, a little shy’ (Meagher 1994, 480).

Appointed KBE in 1955 and a privy councillor in 1963, by the late 1960s he found High Court life less congenial than it had been under Dixon. He did not see eye-to-eye with new chief justice, Sir Garfield Barwick, differing from Barwick in personality and judicial outlook on key matters such as interpretation of section 92 of the constitution, which guarantees freedom of interstate trade. He retired early from the court in 1970 and became chancellor of the University of New England (1970–81). On the founding of the Australian Press Council he was appointed its chairman (1976–82). He was awarded an honorary doctorate of letters by the University of New England (1982), and an honorary doctorate of laws by the University of Sydney (1982). In 1983 he was appointed AC.

Kitto was a sensitive and private individual. The death of his eldest daughter in 1969 had caused him pain that lasted throughout his remaining years. At home ‘he enjoyed the work of a small grazing property (something between a garden and a small farm) until his wife’s death’ (Australian Press Council News 1993, 8) in 1982. After that he consoled himself with travel, walking, watching television, and Rotary Club activities.  Attracted to Quakerism, he ended his ties to Methodism. An avid reader, he ‘preferred the company of great minds of the past to vacuous sociality’ (Connor 1994, 6), though he also enjoyed fiction. Survived by his three remaining daughters, he died on 15 February 1994 at Armidale and was cremated. The annual Sir Frank Kitto lecture at the University of New England is named in his honour.