Supreme Court of Tasmania

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Sir Valentine Fleming by Dr John Michael Bennett AM - Book Launch

Speech by the Honourable Chief Justice Peter Underwood AO
Monday 3 December 2007

I have just had the very great pleasure of meeting Dr John Bennett, and now it is my even greater pleasure to introduce him to you as the author of the biography of Tasmania's second Chief Justice, Sir Valentine Fleming. Dr Bennett is a very distinguished legal historian. He has embarked upon a programme of researching the lives of all the Chief Justices of each State and writing their biographies. To date, he has written biographies of the first three Chief Justices of NSW and Victoria, the first two in Western Australia, the first Chief Justice of Queensland and of South Australia and this is the second for Tasmania, having finished his account of the life of Sir John Pedder in 2003. This is a prodigious output, such that it has caused me to revise the view that I previously held that as I am the 14th Chief Justice of Tasmania, I am most unlikely to come under Dr Bennett's meticulous scrutiny and see my misdeeds in print for the entire world to read. I congratulate Federation Press, for it has made a tremendous contribution to the recorded legal history of this country, by publishing all these biographies, and a couple of other books of Dr Bennett as well.

The Chief Justice of Australia said of Dr Bennett that he "is a distinguished legal historian with an unusual combination of legal knowledge and experience, and historical scholarship who writes with a keen perception." I respectfully concur. This current project of writing the biographies of Australian Chief Justices is but one of many of Dr Bennett's achievements. He has a background of practice both as a solicitor and a barrister. He has taught in the law schools of Sydney. He held a Churchill fellowship and very impressively, was the Editor in Chief for two editions of the Australian Legal Digest, and was the Editor of the Australian Law Reports, so he is more than well qualified to write a biography of Tasmania's second Chief Justice. Dr Bennett was made a member of the Order of Australia for recording Australian legal history and as a biographer of eminent members of the legal profession.

Ladies and Gentlemen, Dr Bennett is not only well qualified to write about Sir Valentine Fleming, he also has the skill to do it in an easy readable way. Although his book is a scholarly work with pages and pages of footnotes showing great depth of original research, it's also a good yarn – if I may use that term. It's not a dry factual account of the life of Sir Valentine and the events of his time; it is an acute observation of human nature and a clear reflection of the times during which he lived.

It seems that Fleming came to Tasmania at the age of 32 having not done too well at either the Irish or the English bars. His first appointment was as Commissioner of Insolvent Estates for Hobart. The post carried no salary but his counterpart in Launceston described the income as satisfactory, for the Commissioner was entitled to keep the statutory fees that had to be paid. I wondered, but briefly, if this was a practice that could be revived and applied to the Supreme Court in the second millennium. Because there was no salary Fleming had a right of private practice and was well regarded for his "curt, judicious manner."

Dr Bennett's frequent and skilful references to, and quotes from, the newspapers of the day and other like material, have uncovered a clear picture of what Sir Valentine looked like – according to the Launceston Advertiser for 14 September 1844 – "finicking, foppish dandyism," and a man who displayed London's latest fashions for men. Yet of his work, the description was "a laborious pains-taking young lawyer.

Dr Bennett's restrained, but vivid description of the events that led Fleming to progress from being a Commissioner of Insolvency to Solicitor General – a duel on the Queens Domain that lead to the downfall of the then Attorney-General - and his progress from Solicitor General to Attorney General; – the dismissal of Justice Montagu for chronic insolvency and the promotion of the Attorney to the Bench – clearly depict the turbulence of public life in the fledgling Colony of Van Dieman's Land. It seems however, that although an able lawyer, Fleming's progression to appointment as Chief Justice was due in no small measure to him toadying up to the Lieutenant Governor of the day, for it is reported that Fleming's "single-minded determination to maintain the best of relations with the Lieutenant Governor for the time being served him well." Something that of course, certainly would not happen to day!

Interestingly, as Attorney General, Fleming's principal duties included prosecuting in the Supreme Court and sitting ex officio in the Legislative Council to support the Lieutenant Governor's proposals. The latter stood him in good stead; for Governor Dennison commended Fleming to London for the office of Chief Justice should the first Tasmanian Chief Justice, Justice Pedder, retire. This Pedder did in 1854 and 12 years after he arrived in the Colony, Valentine Fleming was appointed the second Chief Justice of this State. The appointment was over the protests of puisne judge Justice Horne and many colonists for the Colonial Times represented that "Fleming had been the toadying beneficiary of cronyism."

So, Fleming was sworn in as Chief Justice on 5 August 1854 and knighted two years later. According to the author's account, Sir Valentine Fleming was a model Chief Justice who ran an efficient Court. In 1858 it was reported, amongst other things, that "39 criminal cases were disposed of at a sittings occupying 23 days." No chance of achieving anything like that today!! Dr Bennett wrote of Chief Justice Fleming and his puisne, Justice Smith, "They presented their conclusions with a logical lucidity that was equal to the better judgments given at that time in the Supreme Courts of Mainland Australia!!" So, of course, in that respect things today remain as they were then!!!!

Chapters 7 & 8 are devoted to some of the cases tried by Fleming, the most famous of which concerned a dispute between the executive government and the Legislative Council over whether the Council had the inherent powers that the Westminster Parliament exercised. There was an appeal to the Privy Council which upheld Fleming's judgment, causing Dr Bennett to contrast the incisiveness and expedition of Fleming's pronouncements with the doubts and delays of his predecessor, Sir John Pedder and to comment that Fleming's "judicial ability could never again be gainsaid." The account of these cases make interesting reading, each introduced with a flair that today's judges would do well to emulate when writing their judgments. For example: "In 1865 the Tasmanian Full Court entertained an application for an injunction. The injunction was refused. Had it been brought a year later, the injunction probably would have been granted on the authority of the seminal decision in the English law of torts, Rylands v Fletcher.

I was more than a little interested to learn that Sir Valentine retired in 1870 on a pension that was two thirds of his salary, having served for 15 years. No doubt he would have been interested to learn that I will retire on a pension that is one half of my salary and the judges who were appointed after 1999 will retire without a pension at all!

On 4 February 1870 there was an emotional farewell to a popular Chief Justice. There was "a large attendance of Gentlemen of the Bar, sixteen of whom appeared in barrister's costume." On 12 February 1870 Fleming left Tasmania and returned to England to live but not for long, for he found life in England melancholy and leapt at the opportunity to serve as an acting Chief Justice in Tasmania while his successor Chief Justice Smith took leave in England for 18 months "to restore his health and to attend to private and family matters." Why didn't I think of asking for such leave?

Chief Justice Smith's 18-months leave became just about 2 years' leave, and so Sir Valentine Fleming remained as Acting Chief Justice until mid 1874 when he left for the last time. But it wasn't his last connection with Tasmania and its turbulent political life, but I will leave it to you to read for yourselves about the coda to Sir Valentine's successful judicial career in Tasmania.

What makes this book so captivating is not its scholarly research, although that is very evident, but it’s the way Dr Bennett writes about Fleming and the personalities of the his time as if he knew them and their foibles very well. The account is full of asides about people. For example, when referring to a statement made in the House of Assembly by retired judge Horne, Dr Bennett adds, "If he were so easily given to exaggeration, it was perhaps as well that he was no longer in office as a judge." And writing of a Mr Gregson, described as the failed second Premier of Tasmania, Dr Bennett dryly observes that he was a person "who could be depended upon to make groundless statements." Of one of the last characters to tread the pages of this book, an Attorney General of this State, Dr Bennett wrote, "C H Bromby was a pretentious and rash young man who seemed to think that being the son of a bishop was a guarantee of success in life."

In today's jargon this biography of Tasmania's second Chief Justice is a good read. I commend it to you. I congratulate its author and its publisher and wish it the success it deserves.

Chief Justice Peter Underwood AO