In the space of a few days, two giants of the High Court have been taken from us.
Mary Gaudron and Bill Gummow were born within three months of each other (January 1943 and October 1942 respectively), went through Sydney University Law School together, and departed near simultaneously in September 2026.
It’s hard to imagine two better examples of self-made individuals reaching the top of their professions, always working in the public interest.
Mary’s background is the better-known, glaringly “log cabin to White House”, from humble birth in Moree, spotted by nuns as obviously gifted and nurtured through educational opportunity.
She took her chances. Menzies proposed a referendum in 1951 to allow Constitutional alteration for draconian anti-Communist legislation, and Doc Evatt toured the countryside, successfully speaking against the proposal.
The nine-year-old Mary wrote to the Doc and asked what a Constitution was, and he duly posted her a copy. From little things big things grow: the adult Mary was very confident in her constitutional forays.
Gaudron’s ability to forecast into the future, the mark of a great judge, shows in constitutional cases such as Nicholas (1998) 193 CLR 173, where she said at [74]
“In my view, consistency with the essential character of a court … necessitates that a court not be required or authorised to proceed in a manner that does not ensure equality before the law, impartiality and the appearance of impartiality, the right of a party to meet the case made against him or her …”
Note the acute reference to courts not being authorised to trample natural justice, a point missed by later High Courts as they scrambled to support State legislation aimed at outlaw motorcycle gangs.
Her brief but devastating assenting judgment in Teoh (1995) 183 CLR 273 avoided all the flummery from the other Justices about Conventions.
Gaudron went straight to the prerogative power of the Crown regarding the best interests of children. Only James Allsop has followed up on this point, the Snow White of the law, waiting to be revived (one hopes for Prince, or indeed Princess Charming, not a frog).
My few intersections with Mary are so old that my memory is of her with a fag in one hand and a beer in the other.
Later reminiscences note that her favourite tipple became champagne, and she spread it liberally amongst her friends.
She served indefatigably on the High Court as its first and then only woman member from 1987 to February 2003, when she departed, having reached pensionable age at 60.
She joined the International Labour Organisation in Geneva, serving as the president of its administrative tribunal from 2011 to 2014.
She kept a house in the French university town of Tours, amid the wines of the Loire Valley.
A friend of Mary’s could do a wonderful impression of the plumber being called to the rural retreat, all in idiosyncratic Austral-French.
Mary’s English, like her French, lacked the refined elegance of a Ninian Stephen or a Simon Sheller, but was not as earthy as that of Roma Mitchell of the SA Supremes, the first woman on an Australian superior court.
The account from Gaudron’s client in her first leaderless foray into the High Court, at age 27, O’Shaughnessy v Mirror Newspapers Ltd (1970) 125 CLR 166, leaves no doubt that her rural antecedents had been replaced by a very professional presentation.
O’Shaughnessy recalled “her sheer elegant dash, her shining intellect finding expression in felicitous language, her good manners, charm, poise”.
And she won 5-0 from a very crusty bench, overturning a NSW Court of Appeal of Sir Leslie Herron CJ and Justices Jacobs and Mason, both soon to be on the High Court.
All this at a time when Gaudron could not get a room in chambers (girl germs!!) and was still 11 years shy of taking silk and becoming the first woman Solicitor General in Australia.
As SG for NSW, she advised the Labor government that material in The Age tapes which entangled Justice Lionel Murphy were “unsafe and unreliable” and too unsubstantial upon which to base charges.
Gaudron faced criticism from the usual suspects for her support of Murphy, who had been one of her most important mentors and supporters.
Following Lionel Murphy’s death from cancer in October 1986, Gaudron was appointed by the Hawke government to the High Court to fill his vacancy.
Even then, there were statements attacking her for being too emotional to be a judge, assertions that proved baseless over the next 16 years.
In 2017 she spoke at the NSW Labor Lawyers Annual dinner and said that the time has come for unions to cease having any formal or institutional role within the councils of the Labor Party and that the formal links between the party and the unions should be severed.
Perhaps a judge’s personality may be in part gauged by the associates that they engage. Reflecting Mary’s sense of fun, one of those associates was Ricky Kalowski, later head of comedy at the ABC.
“She was a great gift to Australian law and the community that depends on it (but never an adornment: I once saw her at a High Court dinner aiming a bread roll at a provincial silk, ponderously referring to her as “an adornment to Australian law). She will be keenly missed among her many friends for her lack of pretension and amusement at the human condition.”
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Bill Gummow’s antecedents are rather more solemn, but no less reflective of self-creation.
They begin with HMAS Perth steaming out of Sydney Heads late in January 1942, destined for the Battle of the Java Sea/Sunda Strait in which, on March 1, 1942, the Imperial Japanese Navy sank a number of Allied cruisers, including Perth.
On board, and lost with the vessel, was William Charles Richard Gummow, Engine Room Artificer 4th class.
Bill, the son, was born on 9th October 1942. His mother died in the course of his infancy.
Bill’s intensely private and solitary nature may have stemmed from these events, but there was family, of whom we know little, to assist, and young Bill attended Mosman Preparatory Grammar and then Sydney Grammar (a double also taken by Sir Leslie Herron).
Years ago, it caused a minor sensation when Justinian reported that Gummow was seen buying two pieces of fish at a North Shore fish shop.
His brilliant intellect took to the law, and above all Equity, like a duck to water. Honours flowed, and well before age 30 Bill was a partner at Allen Allen & Hemsley, then the great Sydney firm.
After a decade there he went to the Bar, and after another decade took silk, and in the same year, 1986, a seat on the Federal Court, a day prior to Bob French, with whom Bill’s career would be entwined.
Gummow seems mostly to have made bullets at the Bar, but bullets so cunning that he was a preferred junior for Sir Maurice Byers, Commonwealth Solicitor General for some of that time.
Byers bestrode the NSW Bar, and the happy relationship between the two should not be underrated.
One of Byers’ last appearances in the High Court was successfully arguing Kable (1996) 189 CLR 51, which he won 4-2 (Kirby J still in the process of being appointed).
Since Brennan CJ dissented, Gummow J’s carefully crafted assenting judgment was crucial. Kable marks a critical meeting of great minds – losing counsel, no mean mind himself, once said to me that no one would ever convince him that the decision was correct.
Such is the alchemy of Bar and Bench and the importance of personality in the law – see chapters 3 and 4 of Method, History and Doctrine: Selected Papers of William Gummow 2026, sadly to be launched posthumously, for Bill’s high estimation of Byers.
As for Byers’ mongoose-like technique with the High Court, see Murray Gleeson to Gummow at Method, page 14.8.
All the while Bill was co-editor with Roddy Meagher and John Lehane, Equity: Doctrines and Remedies, first in print in 1975.
The fighting tone may be summed up in the blurb from a later edition under different editors:
“It is fair to say that the current edition is less opinionated than the early editions.”
Denningesque neologisms such as “Mareva injunction” were famously denounced, but intellectual rigour was its watchword.
In 1977 Gummow and Meagher took over the editing of Jacobs’ Law of Trusts in Australia, 4th ed.
Bill continued from his graduation, teaching Equity at Sydney University Law School. A generation of students loved him for his clarity and stimulus in an arcane sub-universe of the law.
See: Gummow on circuit
Teaching was in his bones and he was still lecturing at Sydney and ANU within a fortnight before his death at age 83, amongst his favourite areas being statutory interpretation.
He knew that most lawyers had little idea of its importance, and he was dismayed at the academy’s lack of perception in this quarter.
Gummow’s impact as a judge on the Federal and then High Court (1995 to 2012) is too large to condense here: see Aryan Mohseni’s Introduction to Method for a splendid summation of a life in the law: solicitor, barrister, scholar and judge.
Suffice to observe the synthesis at work in reviewing administrative action with that available for the review of the exercise of fiduciary powers: Fares Rural Meat and Livestock v Australian Meat and Livestock (1990) 96 ALR 153.
The legal papers alone mark endless industry, some in American journals that Australian lawyers may otherwise never encounter.
On leaving the High Court (see Justinian’s report of the farewell ceremony) Bill took a place as a Non-Permanent Judge on the Hong Kong Final Court of Appeal. China Life Trustees v China Energy Reserve [2024] HKFCA 15, on Quistclose trusts, was not the last judgment he wrote on that Court, but reflected his first love, Equity.
He was rationally determined that he should stay on the Court while many others departed in the face of Chinese Government oppression of the former colony.
For all the formidable intellect on display in oral argument, Bill was a most engaging lunch companion (he loved American history, FDR being a point of fascination) but I never had the experience of the rank junior who was sat next to him at a Succession law dinner.
Rank junior announced that he had to get into this area as it seemed a pot of gold lay at the end of every rainbow: the lawyers all got paid out of the estate.
“Never mind the money, my boy”, came the riposte, “it’s the psychodrama, the psychodrama”.
In a trice the rank junior was transported to Bill’s youth, the junior partner at Allens, where he would have been given the personal files of the captains of industry the firm nurtured. Bill went to his grave with many secrets, but a huge fascination with humanity.