Frederick Richard Jordan

Sir Frederick Richard Jordan KCMG (1881–1949) was an Australian barrister, the 9th Chief Justice of New South Wales and Lieutenant Governor of New South Wales.

The late Supreme Court Justice Roddy Meagher QC describes Jordan as being one of New South Wales's foremost Equity Judges. He is described by biographer John Bennett as a "man of bookish tastes, … respected rather than liked by most of his colleagues who, while recognizing his brilliance as a lawyer, found him cold as a person. He, in turn, despised the narrowness of many of his fellows, writing that 'those who are constrained to think for the purposes of their professions refrain in general from thinking about anything else'. He delighted to relax in his vast library, indulging his voracious appetite for Romance languages, and committing to memory the entire contents of many literary works". According to Bennett, Jordan was a daunting figure in court, and his manner was not just cold but chilling. His manner was bleak and he had no time for service out the strict call of duty.^[1] However, Jordan's associate, Justice Slattery recalls Jordan as "quietly spoken, of calm disposition, kind and relaxed but not much given to expressing emotion". Jordan was a man at ease in familiar surrounding, but less relaxed and ill-at-ease at times in public view.^[2] Jordan preferred to catch a tram to work each morning, and in the afternoon, would catch to the terminus in the opposite direction to ensure that he obtained a seat for the return journey home.^[3]

Early years and education

Jordan was born on 13 October 1881 in London, the son of Frederick Jordan and Sarah Jordan (née Nobel). He grew up in Balmain, a suburb of Sydney, after his parents migrated to Australia in 1886 when Jordan was five. He attended Balmain Superior Public School for his primary education and Sydney Boys High School for his secondary education, although the Supreme Court website describes Jordan as attending Gladstone Park State School.^[4]

After leaving school, he was employed as a clerk in the Master in Lunacy's office between 1898 and 1900. He later worked as a shorthand writer and typist in the Public Library of New South Wales (now the New South Wales State Library) from 1900 and the then State's Intelligence Department from 1906.^[5]

Jordan was a sub-editor of publications and compiler in the Bureau of Statistics from 5 June 1907.^[6] During this time, he began evening studies at the University of Sydney, which eventually led to him obtaining a Bachelor of Arts in 1904, and an LL.B. with second-class honours in 1907.^[7] He was a Wigram Allen Scholar in 1904 and a George and Matilda Harris Scholar in 1905.^[8]

Jordan was admitted to the New South Wales Bar on 19 August 1907 and practised from Selborne Chambers. He primarily practised in equity work. He took silk as a Kings Counsel in 1928. He also lectured part-time in the law school of the University of Sydney.

He married Bertha Maud Clay on 9 January 1928 at St Stephen's Presbyterian Church (now a constituent church of the Uniting Church in Australia) on Macquarie Street, Sydney.^[9][10]

Judicial career

Jordan was appointed Chief Justice of New South Wales on 1 February 1934 in succession to Sir Philip Street. Jordan had not been a judge before his appointment and at the time had been a senior equity barrister in New South Wales. He was chief justice between 1934 and 1949. This was a difficult time for the court with a shortage of resources and manpower due to the Second World War, although Jordan's administrative skills helped the court through this period. He was appointed KCMG in 1936, two years after his appointment as chief justice. Sir Owen Dixon, then Chief Justice of Australia, said that it was a "tragedy in the life of the High Court' that Commonwealth governments had not elevated Jordan to that bench' because of Jordan's views on Australian federalism namely being a "State's righter".^[11]

Judicial career

Decisions

Jordan in his time as chief justice sat on many cases. Perhaps the most notable case was Commissioner of Railways v Small.^[12] This case involved the issuing of a subpoena to a person not involved in the court proceedings. A subpoena issued in these circumstances is usually called a "fishing expedition" as the legal counsel involved in issuing the subpoena is fishing around for evidence that may or may not be there. The following passage is often cited in court decisions around Australia where Jordan said: "The writ of subpoena duces tecum may be addressed to a stranger to the case or to a party. If it be addressed to a stranger, it must specify with reasonable particularity the documents which are required to be produced. A subpoena duces tecum ought not to be issued to such a person requiring him to search for and produce all such documents as he may have in his possession or power relating to a particular subject matter."

Another enduring judgment is in the appeal considered in R v Geddes.^[13] This decision is often cited in criminal appeals. Jordan held that after making allowance for any relevant considerations, there has to be a reasonable proportionality between a sentence and the circumstances of the crime, and that any sentence should be appropriate to the particular crime having regard to the gravity of the offence viewed objectively. He concluded that it was easier to see that a wrong conclusion had been applied rather than arrive at any fixed rules for solving the problem. He concluded with the classic line "the only golden rule is that there is no golden rule'.

Another notable case is In re Will of Gilbert (decd).^[14] This was an early case in which the Supreme Court said it would not unnecessarily interfere with interlocutory orders on an appeal. Jordan said "... I am of opinion that...there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a judge in Chambers to a Court of Appeal."

Perhaps the funniest quote is in Ex parte Hebburn Ltd; Re Kearsley Shire Council.^[15] Jordan remarked in that case that "there are mistakes and mistakes".^[16]

The High Court and Jordan

Chief Justice Jim Spigelman writing in the Quadrant Magazine ^[17] noted an interesting case of Browning v The Water Conservation & Irrigation Commission of NSW.^[18] This concerned a decision of the then Water Conservation and Irrigation Commission to deny in 1946 an Italian-born naturalized Australian a water license for irrigation. This was a time when irrigation was being introduced into the Riverina area of New South Wales as a result of the Snowy Mountains water scheme. The denial of the licence was based on policy considerations that licenses would not be granted to Italians for a number of policy reasons. Firstly, they had been enemy aliens during the Second World War. Secondly, it was considered that Italians were not good farmers. Lastly, it was undesirable for Italians to aggregate in the irrigation area. Jordan and the other members of the Full Court of the Supreme Court of New South Wales allowed Browning's application. Spigelman notes that in "blunt words" Jordan rejected the commission's use of the three considerations as it was "no business" of the commission to consider those matters in the granting of a license. The commission appealed to the High Court of Australia.^[19] The commission's appeal was unanimously allowed and Jordan's decision overturned. Spigelman notes that this was perhaps the low point of High Court jurisprudence particularly as the Chief Justice of the High Court, Latham, supported the commission's policy to exclude immigrants.

Books

Jordan was the author of a number of books. The most important in New South Wales is "Sir Frederick Jordan Select Legal Papers" Legal Books Pty Ltd, Sydney, 1983, which is a major contribution to the practice of equity in Australia. The authority of the book has been little doubted since Jordan first published it all those years ago. It was reprinted in 1983. On a lighter note, Justice Roderick Meagher argues that one particular footnote in that publication is wrong.^[20] Meagher notes that though "Great as is the homage we all owe to Sir Frederick Jordan, one must state that the footnote is nonsense. It has, of course, been approved by the High Court on about four occasions ... but that does not convert it into sense". Meagher goes on to show that the footnote is wrong. A similar article by Justice David Ipp written in the same vein discusses one of Jordan's decision on malicious prosecution and humorously describes that Jordan may have been "recalcitrant".^[21]

Later years

Jordan administered the government of New South Wales as Administrator between 28 October 1937 and 1 November 1937 and then as lieutenant governor from 9 January 1946 to 31 July 1946.^[22] Jordan became seriously ill in 1949 and died in his home at Vaucluse on 4 November 1949.^[23] He was accorded a state funeral. He was succeeded in office by Kenneth Whistler Street.

Frederick Jordan chambers in Macquarie Street is named after Jordan.^[24]

Works

• Sir Frederick Jordan: Select Legal Papers.
• Administration of the estates of deceased persons: being a revision of portion of notes of lectures delivered in the Law School of the University of Sydney
• The Admiralty jurisdiction in New South Wales : being notes for lectures in the Law School of the University of Sydney
• Appreciations and Parallels" (1950)

References

Sources

• "Sir Frederick Jordan's Footnote’ by Roddy Meagher (1999) 15 JCL 1
• Who's Who in Australia 1935, p. 262
• NSW Law Almanac 2000, p. 57
• J. M. Bennett, Jordan, Sir Frederick Richard (1881 - 1949), Australian Dictionary of Biography, Online Edition
• New South Wales State Archives.
• Address to the SUPREME COURT JUDGES’ DINNER by J P SLATTERY AO QC on 1 February 2007 http://www.forbessociety.org.au/documents/slattery.pdf