King’s Counsel and Judge of the Federal Court of Australia

The Honourable David Francis Jackson AM KC died on the 15th of May 2023 aged 82. After moving from Brisbane to the Sydney Bar, Jackson KC became one of the most esteemed and revered barristers who has ever practised in the appellate jurisdiction of the High Court of Australia and the NSW Court of Appeal. As a consummate elder statesman of appellate advocacy, he was peerless.

Jackson KC was born in Ipswich on the 8th of May 1941; he was the seventh of seven children. The family moved to Brisbane in his youth after the premature death of his father who had fought in France during the Great War. He attended Marist College Ashgrove as a scholar, subsequently reading law at the University of Queensland. There he forged friendships of a lifetime and excelled academically, receiving the Ross Anderson Memorial Prize for constitutional law – a portent of future excellence in that sphere.

To round off his formative years, for a time Jackson KC served as an officer in the Army Reserves (from 1959—1971) rising to the rank of Major in the Intelligence Corps. He would have commissioned as a permanent officer but for his eyesight.

In 1963, Jackson KC was Associate to the Honourable Sir Harry Gibbs when he sat as a puisne judge on the Supreme Court of Queensland. In those two years, his Honour left an indelible impression on Jackson KC’s concept of advocacy and legal practice. Jackson KC was imbued with the old traditions of the Bar. He became friends with his old mentor until Sir Harry died some decades later. Famously, Sir Harry was always invited to the annual Christmas luncheon of the Seventh Floor of Wentworth Chambers, and one of the last that he attended was at Aria Restaurant near the Opera House in the early 2000s. Jackson KC was a delightful mimic of Sir Harry’s distinctive manner of speaking with a broad, raspy, old Australian accent, often peppering conversations with what his old mentor might have said.

Jackson KC was called to the Brisbane Bar in 1964. Notably, he appeared alongside Charlie Sheahan QC, as he then was, in the prominent and considerable constitutional litigation during the Whitlam government. Between 1969 and 1980, Jackson KC served on the committee of the Bar Association of Queensland, ultimately serving as its Vice President between 1982 and 1983. He was also a member of the Barrister’s Board of Queensland in 1975 and a member of the Consumer Affairs Council of Queensland, among other appointments. He was appointed one of Her Majesty’s Counsel in 1976.

This was a superb hour when the Brisbane Bar included the likes of Ian Callinan QC, Geoff Davies QC, Tony Fitzgerald QC, Bruce McPherson QC, Bill Pincus QC and Cedric Hampson QC, as their honours then were. It was a golden era for a coterie of silver-tongued gentlemen. It was a luxurious slice of time. Each of these men would leave a distinct mark on the law. They cultivated a level of exceptional advocacy of the highest calibre. The stakes were high and cases were often hard fought in the 80s. It was a glamourous and rough life at the same time. Yet the courtesy of this elite set was legendary. Lifelong friendships were cast amid an unmistakable bonhomie.

On 15 November 1985, Jackson KC was appointed as a Justice of the Federal Court of Australia aged just 44, sitting in Sydney. He found life as a judge not to his liking. He preferred being a silk and reverted to the Sydney Bar swiftly.

Jackson KC’s identity as a practitioner was singular – he was the pre-eminent silk for nearly half a century and arguably the finest constitutional and High Court barrister since Federation. As the Honourable Andrew Bell, Chief Justice of NSW observed in his condolence message to the Bar on learning of his death, Jackson KC was ‘… in truth, a generalist. His speciality was advocacy and the art of persuasion.’ Of this, there can be no doubt. His art of persuasion boiled down to the trust he built up with the judiciary. His advocacy was never a contrivance.

Jackson KC appeared innumerable times before the High Court as leading counsel in cases across the full gamut of the law in Australia: constitutional, common law, criminal law, commercial causes, family, wills and estates, equity, taxation, industrial, defamation and implied freedom cases. Many of those proceedings actually made law. His signature Jacksonian language was clear, precise and taut. It was the way he wrote. His submissions were devoid of flourishes and intensifiers. At times, it was a language sui generis. Reading a transcript of Jackson KC before the High Court, one notices immediately that there was not a moment of linguistic garnishment. His prose was deliberate and clean and always precise. Jackson KC’s ease in that most rarefied of jurisdictions was largely due to the fact he had ‘done the work’ earlier. He always invested in preparation and never took short cuts. His cardinal gift was his mastery of the English language after long, detailed preparation, often with argument written out on paper. He never relied on his ‘muscle memory’; each case was prepared on its own facts. He was a disciplined practitioner and he knew exactly what to do every time. Logic and clarity were central. His arguments bore a pellucid quality.

Jackson KC was the leader of the Seventh Floor of Wentworth Chambers between 2002 and 2014, and later the Founding Head of New Chambers between 2014 and 2016. On the Seventh Floor he was fondly remembered for hosting Melbourne Cup champagne parties in his commodious double room. He was ever-generous, fostering a great culture of mentoring and collegiality in chambers. His colleagues at the Sydney Bar included AM Gleeson KC, RR Stitt KC, the late Chris Gee QC and especially the late Hon IV Gzell QC and the late Hon Robert Shallcross Hulme QC from his Queensland days.

Jackson KC was ever courteous and generous. He knew the meaning of kindness and he was a great exponent of such human qualities as facilitate development of legal principle and the administration of justice. He imparted wisdom whenever and from whomever it was sought: as in chambers, so before the Bench.

There are many appeals and cases which David Jackson recalled fondly. One which he always mentioned was Re Wakim, Ex Parte McNally in (1999) 198 CLR 511. In Indigenous rights, Jackson KC was proud of his work in the early stages of Mabo. He acted in Koowarta v Bjelke-Petersen (Koowarta’s/Queensland Aborigines case) (1982) 153 CLR 168. He is also remembered for acting in the Tasmanian Dam Case Commonwealth v Tasmania (1983) 158 CLR 1. From time to time, he took a personal injury case, and he was most pleased with the result in Tapp v Australian Bushmen’s Campdraft & Rodeo Association Limited [2022] HCA 11.

Jackson KC had an influence that transcended generations and state lines such as upon Paul de Jersey KC, John Muir KC, Richard Chesterman KC, and Margaret White – as they then were – as well as the Honourable Pat Keane AC KC. Her Honour the Chief Justice of Australia Susan Kiefel AC delivered a eulogy at the obsequies in St Mary’s Cathedral Sydney for her long-time mentor.

Notably in 2004, David Jackson chaired the New South Wales Special Commission of Inquiry into the Medical Research and Compensation Foundation established by James Hardie in relation to asbestos-related injuries suffered by persons who had used James Hardie products. Incidentally, his counsel assisting was John Sheahan SC, who had taken silk in Queensland and later moved to the Sydney Bar, and as one might say, plus ca change... It was the model of the conduct of a Commission of Inquiry. The report he prepared was a watershed moment for societal expectations around the prudential funding of longtail products liability.

Latterly, part of the shock on learning of Jackson KC’s death was that he never actually retired. Jackson KC revelled in the life of a silk – he never wanted to be anything else. He remained visible in Phillip Street and engaged with members of the Bar and often on the way to Court. His sparkling conversation and wit were always accompanied by his full-faced smile and a moment of raucous laughter. Relatively recently he appeared before the New South Wales Court of Appeal and continued to keep chambers. He was the quintessential advocate that never stopped.

Jackson KC was appointed as a Member of the Order of Australia in 2007 for his service to the legal profession as a leading practitioner in the fields of constitutional and appellate law; as a contributor to the development of professional organisations within the law; and through his roles in professional education. He knew what pro bono truly meant, and practised it regularly.

Curiously, Jackson KC always asked a co-counsel and often a junior to sign something to mark the occasion. This was not an unusual practice from certain leading silk of an era, for example, an appearance slip or a menu from lunch they shared on a certain day after an appearance. These papers were signed as a memento to mark the occasion in a time before the internet and digital footprints. In among the objets of a lifetime to be cleared, Jackson KC left an empty bottle covered in dust bearing the old label Grand Cru Classé Chateau Talbot Saint Julien Medoc 1955, a legendary Bordeaux. Scrawled on the label in handwriting is ‘Lunch in Honour of Justice Jackson’ with the date 1/11/1985 covered in fading signatures of friends and family. It was a direct and tangible bibelot harking back to his appointment to the Bench. What is even more uncanny is a well-known reviewer’s description of the wine from the time:

‘…a generous bouquet, extremely stable and dependable during aging,…
Talbot is a champion of longevity; even young Talbot is pleasant and rounded, always characterized by silky, mild and very civilized tannins. Talbot possesses an expansive character. It’s never withdrawn into itself and has the courtesy of being in a good mood every day. It’s a racy wine, with complex marks of Havana tobacco and liquorice, classically delicious without ever the slightest hint of austerity’

This description evokes Jackson KC’s personality, habits and perhaps that luxurious period in the 1980s at the Brisbane Bar, perfectly.

Jackson KC’s life was also marked by an intense devotion to his family. On 29 May 1970, he married Monica Letheren, an historian in ancient jewellery, and for some time an expert at the University of Sydney’s Nicholson Museum. They were married for fifty years and were always seen together. His three daughters Catherine, Dominique and Louise, for whom he was a gentle and loving influence, feel the loss deeply, as do his four grandchildren.

Jackson KC was a devout Catholic, and although he did not consciously wear the faith, he carried it deeply. He held a lifelong affiliation with the Sovereign Order of Malta, serving as its President between 1984 and 1987.

Jackson KC was a titan of appellate advocacy in Australia. He practised at the highest level for the longest time. His words were worth their weight in silk and his personal qualities even more. The Bar will miss him.

Forsan et haec olim meminisse iuvabit.

Aeneid I Line 203 BN