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Sir Hayden Erskine Starke (1871–1958)

by J. D. Merralls

This article was published:

Sir Hayden Erskine Starke (1871-1958), judge, was born on 22 February 1871 at Creswick, Victoria, second of four surviving children of Anthony George Hayden Starke, medical practitioner, and his wife Elizabeth Jemima, née Mattingley, both English born. After Dr Starke died of typhoid in 1877, his widow took employment as a postmistress at Sebastopol and Smythesdale. Hayden was educated at local schools and attended Scotch College for six months before being articled to the legal firm of Weigall & Dobson. At the University of Melbourne, where he attended lectures, he was secretary (1891) of the law students' society and won the Supreme Court Judges' prize for articled clerks. A keen competitive rower, Starke was later president of the Victorian Rowing Association. He declined an offer from his firm when admitted to practise in 1892 and went immediately to the Bar. Through industry and force of personality he became a leader at the junior Bar. Having lived with his mother and a sister at Clifton Hill, in 1901 he bought a house in Toorak Road, Malvern, which he named Calembeen. On 1 July 1909 at St Mary's Catholic Church, St Kilda, he married Margaret Mary, only daughter of John Gavan Duffy and granddaughter of Sir Charles Gavan Duffy. The loss that year of his mother and sister, passengers to England aboard the Waratah which vanished between Durban and Cape Town, was a bitter blow.

Prime Minister Alfred Deakin invited him to become his personal legal adviser, but Starke declined because the position was to carry no right of private practice. In 1912 he refused silk when it was offered by Chief Justice Sir John Madden on the grounds that he had married late, had no private means, and preferred the flexibility that allowed him to lead in important cases yet remain free to accept lucrative junior barristers' work. He refused again, in 1919, because he was unwilling to take advantage of not having served in World War I. In February 1920 the Hughes government appointed him to the High Court of Australia on the death of Sir Edmund Barton. Unlike earlier members of the court, Starke had had no political affiliations.

In his first years on the bench Starke often joined in the judgements of others, as in the Engineers' Case (1920) in which he was a party to a judgement largely written by (Sir) Isaac Isaacs which abandoned the doctrine of the immunity of State and Federal instrumentalities. It was mainly at Starke's instigation that the court embarked in that case upon a root and branch review of its previous decisions. He came to regret the breadth of the statement of some propositions in the Engineers' Case, and in the Uniform Tax Case (1942) and the State Banking Case (1947) sought to confine its reach. Temperamental differences from other judges, especially Isaacs and Henry Higgins, led Starke to the practice of stating his own reasons for judgement. Though (Sir) Frank Gavan Duffy—John Gavan Duffy's half-brother—joined in many of his decisions, the work was undoubtedly Starke's. His judgements were lucid, succinct, and emphatic, and he was scornful of the discursive habits of others. His personal isolation within the court became more pronounced after the appointment of Bert Evatt and (Sir) Edward McTiernan in 1930. At first he co-operated with Evatt, but soon he behaved towards both with an undisguised hostility which was partly personal yet also indicated his inability to work amicably with his colleagues: Starke's adherence to a strict code of honour yielded little to human frailty. During World War II, when the High Court's strength was depleted, he bore a heavy load. Legalistic attempts to escape wartime controls received short shrift from him, though he was concerned that fundamental rights should not be lost to the cause of expedience.

Starke's conduct as a trial judge differed markedly from his behaviour in the Full Court where matters deteriorated after the appointment of his former pupil Sir John Latham as chief justice in 1935. Starke derided in private the tendency of several judges to follow (Sir) Owen Dixon uncritically. His personal relationship with all but Dixon broke down so badly that he refused to exchange judgements or even to communicate off the bench except by curt, often offensive, notes. Starke resigned in January 1950. His last notable case concerned bank nationalization (1948). Before the hearing he rebuffed a suggestion that he should not sit because his wife had a small shareholding in one of the banks. He never took extended leave and, except for a brief Pacific cruise, never left Australia.

Forceful in personality, dominant in presence, Starke cut an imposing figure. In latter years he refused to wear a wig in court, ostensibly because it irritated his scalp; he also refused to have his portrait painted. With few friends among his contemporaries or elders, he was liked and respected by younger men in the profession whom he helped and guided. He was a member of the Yorick and the Australian clubs, Melbourne. Though appointed K.C.M.G. in 1939, he was never made a privy councillor. Survived by his wife, daughter and son, Starke died on 14 May 1958 at Toorak and was cremated. His estate was sworn for probate at £19,999. Dixon said of him publicly that 'his legal knowledge, his discriminating judgment as to what mattered, his clearness and directness of speech and the strength of his mind and character combined to give him a forensic power as formidable as I have seen'. Starke's son, (Sir) John Erskine Starke, became a judge of the Supreme Court of Victoria.

Select Bibliography

  • F. M. Bradshaw, Selborne Chambers Memories (Melb, 1962)
  • A. Dean, A Multitude of Counsellors (Melb, 1968)
  • R. G. Menzies, The Measure of the Years (Melb, 1970)
  • R. Campbell, A History of the Melbourne Law School 1857 to 1973 (Melb, 1977)
  • Australian Law Journal, 17 Feb 1949, p 468, 16 Feb 1950, p 550, 23 June 1958, p 55
  • Commonwealth Law Reports, 97 (1958), p 4
  • Melbourne University Law Review, 2, 1959, p 1
  • Sydney Morning Herald, 4, 6 Feb 1920, 13 Aug 1931, 2 Jan 1934, 12 Aug, 23 Oct 1948, 1 Feb 1949, 26 Jan 1950, 16 May 1958
  • Today (Melbourne), 1 Sept 1934
  • Sun News-Pictorial (Melbourne), 27 Jan 1950
  • Herald (Melbourne), 15, 16 May 1958
  • Latham papers (National Library of Australia)
  • Dixon papers (privately held)
  • private information.

Citation details

J. D. Merralls, 'Starke, Sir Hayden Erskine (1871–1958)', Australian Dictionary of Biography, National Centre of Biography, Australian National University,, published first in hardcopy 1990, accessed online 18 July 2024.

This article was published in hardcopy in Australian Dictionary of Biography, Volume 12, (Melbourne University Press), 1990

View the front pages for Volume 12

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