Australian Dictionary of Biography

The Honourable Dr Thomas Smith AC QC, by Paul Fitzgerald AM

Courtesy of the Victorian Bar and the Fitzgerald family

Thomas Weetman Smith (1901–2000), judge, was born on 28 September 1901 at Woollahra, Sydney, younger child and only son of Thomas Smith, an Irish-born jute merchant, and his wife Caroline, née Weetman, a Jersey-born businesswoman and property investor. Considered a sickly child, Tom missed much of his primary schooling but became an avid reader. He was educated at Abbotsholme College, Killara, before winning a scholarship to attend (1915–18) Sydney Church of England Grammar School (Shore). In his final year he was a prefect and won the War Memorial Prize.

After travelling to Britain and France in 1919, the Smith family moved to Melbourne. Tom studied at the University of Melbourne (BA, 1923; MA, 1925; LLB, 1925; LLM, 1926), residing (1921–24) at Trinity College. He was awarded first-class honours in English and second-class honours in law, and competed in intervarsity debating. In 1926 he began practice as a barrister, reading with (Sir) Charles Lowe and (Sir) Wilfred Fullagar. On 3 January 1934, in a civil ceremony in Melbourne, Smith married Agnes Mary (Mollie) Harrison, daughter of Horace Washington Harrison, a journalist and motoring pioneer, and his wife Violet (Viola) Maude, née Parker. Mollie became an active member of the Australian Labor Party. Another judge’s wife later remarked: ‘Mollie’s not really one of us. She’s a little bit pink, you know’ (Smith, pers. comm.).

As a barrister, Smith distinguished himself, not in handling witnesses and juries, but by his mastery of diverse fields of legal doctrine including constitutional law, property, deceased estates, industrial law, and taxation. In June 1942 he was among several barristers appointed to the Department of Defence on the recommendation of (Sir) Kenneth Bailey. In the War Cabinet secretariat, he assisted in production and supply reviews, and chaired a quasi-judicial inquiry into the supply of vehicle spare parts to the army, displaying a characteristic command of technical detail. He returned to legal practice in February 1945 and in 1948 was appointed KC.

Becoming an acting judge of the Supreme Court of Victoria on 1 February 1950, Smith was appointed permanently nine days later, on the elevation of Fullagar to the High Court of Australia. As a judge, he was notable for his tireless scholarship, his taciturn authority in court—‘adamantine,’ a barrister recalled, ‘like a god out of the ages’ (Charles 2011)—and his exceptional ability to distil essential principles from a mass of sometimes confused precedent. He won a long campaign to make the Supreme Court more receptive to criminal appeals. Criminal cases predominate among the many citations of his decisions in the High Court.

By temperament Smith was a cautious reformer, expounding and clarifying existing authority but looking for ‘the best community result’ (Law Institute Journal 1983, Pt 1, 660) when precedent was inconclusive. His dissenting judgment in the case of Robert Peters (or Peter) Tait strongly influenced the High Court’s dramatic decision to stay Tait’s execution. When in R. v. Davidson (1969) Supreme Court Justice Clifford Menhennitt famously ruled on the circumstances in which abortion was lawful, his formulation was based on a draft supplied privately by Smith, who was initially listed to hear the case. Sir Owen Dixon and (Sir) Robert Menzies had considered Smith for appointment to the High Court, but Menzies preferred other candidates. Shunning air travel and public attention, and disliking absence from his family, Smith would not have welcomed an invitation.

An ‘imperturbable and remorseless’ (Lobban 1973) lecturer in contract law at the University of Melbourne from 1933 to 1946, Smith took a leading role in the law course established in 1962 by the Council of Legal Education as an accessible alternative to university study, and in the creation of the Monash University law school in 1965. From 1961 to 1973 he chaired the Chief Justice’s Law Reform Committee and, after retiring from the Supreme Court in September 1973, he served (1974–76) as Victoria’s first law reform commissioner. By rejecting the proposed distinction between capital and non-capital murder, Smith’s first report as commissioner contributed to the abolition of the death penalty, a result that gave him great satisfaction. From 1977 to 1984 he was a member of the Victorian government’s Criminal Law Working Group.

Solemn in public, Smith was warm and humorous among friends. A nightly drink at a city hotel was a fixture of his working week. In old age, he remained a keen swimmer. He received honorary degrees from Monash University (LLD, 1969) and the University of Melbourne (LLD, 1973), and was appointed AC in 1990. He was widely believed to have refused a knighthood. Predeceased by his wife (d. 24 April 2000) and a child who died in infancy, Smith died at Malvern East on 16 June 2000 and was cremated. He was survived by his four daughters, Anne, Sue, Jane, and Jill, and by his son, Tim. A secular funeral was held at St Michael’s Uniting Church, Melbourne. A portrait of Smith by Murray Griffin competed for the Archibald Prize in 1951, and another by Paul Fitzgerald is held by the Victorian Bar. His son Thomas Harrison (Tim) Smith was a judge of the Supreme Court of Victoria from 1990 to 2009.