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University of Technology Sydney Law Research Series |
Last Updated: 8 February 2017
Banter from the Bench:
The Use of Humour in the Exercise of Judicial Functions
Jack Oakley & Brian Opeskin [*]
ABSTRACT
Australians are often said to have a sense of humour that is dry, irreverent
and ironic. In such a culture, one might expect those
who exercise judicial
power to feel at liberty to unleash their wit. Yet most judicial officers in
Australia today exercise caution
and restraint in using humour in courtrooms and
judgments. This stringent attitude is reflected in the paucity of Australian
examples
of judicial humour, especially in written decisions. However, this
conventional view deserves to be challenged. This article assesses
whether there
is an appropriate role for humour in the exercise of judicial functions in
hearing and determining cases.
This article considers the primary
stakeholders in legal proceedings—litigants, judges, advocates and
society-at-large—and
examines how their different interests are affected
by the use of judicial humour. The article then discusses four arguments in
support
of judicial humour, namely, that humour is a quintessentially human
quality we should expect judges to display; promotes open justice
by
demystifying the language and rituals of the courtroom; oils the wheels of
justice by easing courtroom tensions and aiding digestion
of complex written
reasons; and serves as a social corrective by allowing judges to gently
admonish.
Balanced against these considerations is the concern that excessive
use of humour may conflict with a judge’s ethical duty to
acquit his or
her role with independence, integrity, propriety and diligence. In extreme
cases, a judge’s use of humour might
give rise to an apprehension of bias
in discharging judicial functions. The use of humour also has to avoid claims of
judicial misconduct.
While it is fanciful to suggest that even an egregious use
of humour could amount to misconduct that warrants removal from office,
it could
form the basis of a complaint against a judicial officer, and has done so on
occasion.
Despite these legitimate constraints on judicial behaviour, the
article concludes that humour has a place in the curial process. From
time to
time the use of humour by judges may be called in question, but judges are
chosen for their capacity to judge. Extreme cases
aside, we should let humour
lie within the sound discretion of the court.
Contents
1 INTRODUCTION
Humour is a difficult topic to interrogate. Like the observer effect in particle physics, mere analysis changes the phenomenon being observed, turning hilarity to amusement, and amusement to pity. As American writer E B White acutely observed, ‘[h]umor can be dissected, as a frog can, but the thing dies in the process ... It has a certain fragility, an evasiveness, which one had best respect.’[1]
When the topic is judicial humour, the difficulties are compounded. Perhaps for this reason, with only a few exceptions,[2] judicial humour rarely has been subjected to considered analysis in Australia. To be sure, there have been sporadic collections of amusing legal anecdotes by practitioners[3] and former judges,[4] and these have brought into the public domain vignettes of judicial life that might otherwise have been lost to those who did not witness them. Books of this ilk provide a solution to the pressing problem of how to fill the Christmas stocking of a legally qualified friend or loved one, but there is room for more serious engagement with this lightest of topics.
While all members of society live under the aegis of the law, very few are exposed first-hand to its institutions, personnel or processes. For those who are, the experience is a sombre one. Judicial officers, often robed and wigged, sit on high in monumental buildings, speaking an arcane language, delivering judgment ex cathedra in cases that expose parties to financial ruin or deprive them of their liberty. At first blush, it is not an environment conducive to jollity. And yet, in the midst of this formality, or perhaps because of it, judges and magistrates do, from time to time, engage in humorous exchanges with other participants in the legal system or use humour in their written decisions. Legal practitioners may not be surprised at the apparent contradiction. Judicial officers are generally intelligent and well-educated individuals. They have undertaken lengthy periods of study in demanding academic programs. Through training and experience, most develop high-order oral and written communication skills, and the dynamics of the courtroom require them to hone their adroitness, agility and acuity.
This article considers whether there is a legitimate role for humour in the exercise of judicial functions; and, if so, whether its use conflicts impermissibly with the ethical obligations and high standards of conduct expected of judicial officers. We argue that, despite these constraints on judicial behaviour, humour has a valuable place in the curial process. Humour is a quintessentially human quality that we should expect judges to display; it promotes open justice by demystifying the language and rituals of the courtroom; it oils the wheels of justice by easing courtroom tensions and aiding digestion of complex written reasons; and it serves as a social corrective by allowing judges to gently admonish stakeholders who warrant it.
The scope of the article is limited in several ways. First, we focus on the use of humour in the exercise of official judicial functions. We thus leave to one side the levity to which judicial officers are prone in after dinner speeches, bar dinners, swearing-out ceremonies, and other extra-curial gatherings where the use of humour is less controversial and subject to different social standards. Secondly, we examine the use of oral and written humour, which corresponds roughly to two stages of the judicial process, namely, hearing cases and delivering written reasons for judgment. However, these are different contexts, and the arguments for and against the use of humour do not necessarily apply with equal strength. In the former, humour not infrequently emerges organically from the short, unscripted and unpremeditated exchanges between bar and bench. Thirdly, we discuss the use of humour by judicial officers at different levels of the court hierarchy. Although we call them all ‘judges’ for the sake of convenience, magistrates in lower courts and judges in intermediate or appellate courts face different environments, which impact on the opportunities for, and appropriateness of, using humour. These differences include the subject matter and volume of cases; whether the parties are represented by barristers, solicitors or themselves; the need for written reasons and the time available to write them; and amenability to appeal. Fourthly, we give an Australian flavour to the topic, notwithstanding that some of the most notorious cases of judicial humour hail from other jurisdictions. In the United States, for example, there are many documented instances of judicial humour arising from embellishing facts, using non-traditional literary forms (poems, lyrics, fables), and wordplay.[5]
The article is structured as follows. Part 2 examines the nature of Australian humour and the oddly contrary fact that Australian judges have generally adopted an attitude of reticence towards the use of judicial humour. Part 3 recognises the subjectivity of humour and examines its judicial use from the different perspectives of litigants, judges, advocates and society-at-large. Part 4 presents arguments in support of a more liberal attitude to the use of humour in Australian courts, as foreshadowed above. Part 5 examines professional constraints on judicial behaviour, and the tensions that can arise between the use of humour and a judge’s ethical obligation to be fair and be seen to be fair. Part 6 concludes that humour can fulfil a variety of purposeful roles in the exercise of judicial functions. Judges should be trusted to ‘banter from the bench’ when the circumstances are propitious.
2 THE STATUS QUO
2.1 Australian humour
Humour is one of the transcendent pleasures that is said to distinguish humans from other animals. Although there is scientific evidence that some non-human animals ‘laugh’ and show playfulness in ways that border on a sense of humour, comicality appears to be an inherent part of human cognition. Chimps may chortle, dogs may deride and parrots may provoke, but these animals lack the specialised cognitive networks required to process humour as it is understood by humans.[6] Humour, is also evoked in many different contexts:
‘Laughter in our own species ... is triggered by a range of social stimuli and occurs under a wide umbrella of emotions, not always positive. To name just a few typical emotional contexts for laughter, it can accompany joy, affection, amusement, cheerfulness, surprise, nervousness, sadness, fear, shame, aggression, triumph, taunt and schadenfreude (pleasure in another’s misfortune).’[7]
If humour is innate to humans, it is likely to be experienced across cultures. However, the social context of humour suggests that different cultures develop particular ways of laughing. Typical Australian humour of the 19th and early 20th centuries is said to have been characterised by ‘a dry, understated and laconic wit’,[8] in which themes of independence, anti-authoritarianism and drinking predominated. Today, favoured forms of Australian humour include the sarcastic, the deadpan and the irreverent, both in small-scale interpersonal communications and broader styles of public humour.[9] These forms of humour are ubiquitous—in books, newspapers, online media, television and film.
Moreover, they have been protected by legislation. When debating amendments to copyright law in 2006 to make room for parody and satire, the Minister for Justice argued that the reforms were necessary to ‘ensure that Australia’s fine tradition of poking fun at itself and others will not be unnecessarily restricted’.[10] The Attorney-General also made public comment on the issue, noting ‘Australians have always had an irreverent streak ... an integral part of their armoury is parody and satire—or, if you prefer, “taking the mickey” out of someone.’[11] While there are dangers in extrapolating a ‘national character’ from the experiences of a heterogeneous and multicultural population, expressions of humour are common, and indeed welcomed, in many walks of private and public life.
Consistently with the Australian ethos, there are numerous instances of judicial officers using humour in the exercise of their official functions. A few contemporary examples illustrate the point. In 2014, a magistrate in New South Wales sentenced a woman to nine months gaol for a drug offence. After the defendant indicated her intention to appeal, the magistrate said to her solicitor in open court:
‘You and I know precisely what will happen at the hearing of any appeal to the District Court. If past experience is any guide, and it is usually the best guide, the custodial penalty will be swept aside and replaced by a bond and a box of chocolates.’[12]
In another New South Wales case, a magistrate proposed to issue an apprehended violence order to a man, which required that he not come within 400 metres of the former family home. When asked if he would have a problem with the order, the man replied that he would. ‘As you are aware, I work at Bankstown airport’, he said. ‘Part of my job is to taxi aircraft around the perimeter, and at one point that takes me within 400 metres of the house.’ The magistrate replied: ‘Very well, I shall vary the order. You are not to come within 400 metres of the house, except in an aircraft.’[13]
In 2015, the Western Australian Supreme Court considered a statutory claim by a 19 year old woman for financial provision from her deceased father’s estate. In considering the daughter’s likely future needs, and the difficulty of evaluating them, Master Sanderson remarked:
‘The plaintiff did say she had a boyfriend whom she hoped to marry within the next two years. She anticipated having four children. Of course it is possible after one child she might reconsider; most sensible people do.’[14]
Also in 2015, the Federal Court decided a trademark infringement claim involving two firms (one Australian, the other foreign) that had very similar names, both incorporating the word ‘Anchorage’. Perram J had to consider whether the executives of the Australian company deliberately chose the name ‘Anchorage’ knowing of the foreign company’s business. The executives (Mr Wong among them) had used a dictionary and, starting at the letter ‘A’, had initially come up with the word ‘Anchor’. The judge continued:
‘Mr Wong’s wife thought that ANCHOR had an unfortunate rhyming connotation. In any event, they eventually settled on ANCHORAGE which, to my mind, does not necessarily allay Mrs Wong’s concerns, although it potentially contributes a splendid new word to the language.’[15]
It would be wrong, however, to conclude that these bon mots are typical of courtroom interactions or judicial decisions. In 2013–14, some 854,055 criminal matters and 631,598 civil matters were finalised in Australian courts,[16] and yet examples of judicial humour—oral or written—remain elusive. Why is this so?
2.2 Judicial reticence
Despite the role of humour in the Australian ‘national character’, the attitude that prevails among much of the Australian judiciary has been one of caution and reticence—judicial humour is seen as ‘risky’.[17] This rectitude is typified by an address given by former Chief Justice of Australia, Murray Gleeson, as part of an orientation program for new judges:
‘Without wishing to appear to be a killjoy, I would caution against giving too much scope to your natural humour or high spirits when presiding in a courtroom. Most litigants and witnesses do not find court cases at all funny. In almost ten years of dealing with complaints against judicial officers to the Judicial Commission of New South Wales I have seen many cases where flippant behaviour has caused unintended but deep offence.’[18]
Gleeson spoke from personal experience. Although well-known for his sardonic wit, ‘The Smiler’ (as he was ironically named) rarely infused his judgments with humour. Soon after being appointed as Chief Justice of New South Wales, Gleeson decided a case in which a woman sued her amorous husband for financial support after their marriage had broken down:
‘The deceased appears to have maintained simultaneous domestic establishments with all three women and their respective children. In terms of division of his time he appears to have given preference to Margaret Green, but it seems that he spent two nights a week, regularly, with the respondent and, at least according to her evidence, gave what she regarded as a plausible explanation of his absences. Presumably, over a number of years, he managed to achieve the same result with the other women. This is consistent with his apparent success as a used car salesman.’[19]
The judgment unleashed vocal protest. A letter published in a major metropolitan newspaper claimed that the Chief Justice owed a ‘big apology’ for denigrating all used car salespeople, when most were honest and fair-minded individuals, with only a few bad apples.[20] After that, as Gleeson’s biographer observed, the Chief Justice put humour on hold.[21]
Gleeson’s cautionary advice to new judicial recruits reflects a deeper concern that was voiced by his predecessor, Sir Anthony Mason, when speaking of ‘judicial reticence’. Although not specifically referring to the use of humour, Mason observed that if judges want to be insulated from controversy, they must not invite it. Judicial reticence, in his view, had much to commend it in terms of preserving judges’ neutrality and shielding them from public controversy.[22]
These measured words from the country’s highest judicial officers appear to have hit their mark because examples of humour in courtrooms and judgments appear few and far between. However, as this is an empirical claim, it invites further examination. In a pioneering Australian study involving courtroom observation and interviews, Roach Anleu et al concluded that ‘there is an understanding and acceptance of judicial humour in court as well as an awareness of the risks’.[23] With less rigour, we painstakingly perused one year’s worth of transcripts of proceedings and written reasons for judgment of the High Court of Australia. The High Court was selected because its transcripts and judgments are publicly available, unlike those of many other Australian courts.[24] The year 2002 was selected, at the risk of introducing a positive bias, because it was one of ten years in which Justices Kirby, Callinan and Hayne sat together on the bench, each of whom has been recognised for his humorous qualities.[25] Perhaps coincidentally, it is also the year among those ten that contained the fewest judgments to digest.
The review reveals a sorry state of affairs. One is left lamenting the fact that of the 16,791 pages read, comprising some 6,142,955 words, only 5,536 words appeared intentionally humorous—less than one-tenth of one percent. The ‘highlight reel’ consists primarily of comments made by the justices on special leave days—the days on which the Court considers, in rapid succession, whether it will grant special leave to appeal, which is a prerequisite for accessing the Court’s appellate jurisdiction.[26] Justice Gageler has aptly described them as ‘happy days: the courtroom equivalent, some might say, of Australia’s Got Talent; rich in all of the emotions that come with short sharp forensic contests followed by swift and final outcomes.’[27] Notwithstanding the frisson of excitement generated by an occasional humorous exchange between court and counsel, the disappointing outcome of this review serves to confirm that the use of humour by Australian judges is rare, at least at an appellate level. The absence of humour in transcripts of oral proceedings may be partly explained by the self-restraint of court reporters—some of the most humorous comments are heard and appreciated but never find their way into the official record. Moreover, much humour is non-verbal, relying on gesture, timing, intonation and circumstance. However, neither explains the comic void in judicial decisions.
The Australian judicial reticence towards the use of humour stands at odds with the more relaxed approach of counterparts in the United Kingdom and the United States. Mindful of the dangers of extrapolating from a ‘wilderness of single instances’,[28] the following illustrations provide some interesting contrasts. Consider the penchant of some judges for displays of cleverness and literary prowess in their judgments.[29] In the much-publicised Da Vinci Code plagiarism case, Smith J, of the High Court of Justice of England and Wales, was inspired by the subject matter of the litigation to embed a code of his own (in the form of a polyalphabetic cipher) by bolding and italicising individual letters in his written judgment.[30] When deciphered, the text read ‘Smithy Code. Jackie Fisher, who are you? Dreadnought’, reflecting a personal interest of the judge in Royal Navy Admiral Lord John Fisher, designer of the battleship HMS Dreadnought. According to the legal practitioner who broke the judge’s code, ‘If he has shown that our high court judges have a sense of humour and intrigue ... what harm can he be said to have done?’[31]
In a similar vein, Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit decided an appeal in an antitrust case brought by the United States government against a Las Vegas movie-chain owner, Syufy Enterprises. His 14-page opinion—which held that Syufy’s actions in purchasing movie theatres from failing competitors was not anti-competitive—had copious movie titles woven into its fabric.[32] Although the judge refused to confirm or deny the suspicions of movie aficionados, an enterprising law review republished the decision, highlighting 215 movie titles that could be found in a well-known movie guide to which the judge had referred in an obscure footnote.[33]
More recently, in November 2015, United States Magistrate Gail Standish incorporated the lyrics of several Taylor Swift songs in the conclusion to her opinion in a copyright case brought by a self-represented litigant:
‘At present, the Court is not saying that Braham can never, ever, ever get his case back in court. But, for now, we have got problems, and the Court is not sure Braham can solve them. As currently drafted, the Complaint has a blank space—one that requires Braham to do more than write his name. And, upon consideration of the Court’s explanation in Part II, Braham may discover that mere pleading BandAids will not fix the bullet holes in his case. At least for the moment, Defendants have shaken off this lawsuit.’[34]
These unusual cases invite the question as to whether they are illustrations of judicial humour, or something else. Observers might agree that they are creative, even playful. They may amuse lawyers or law students, providing welcome respite from digesting complex legal reasoning; but are they funny? The answer is necessarily subjective and depends on the vantage point from which one observes or participates in the legal system. As the Roman poet Lucretius timelessly observed, one man’s meat is another man’s poison.[35]
3 JUDICIAL HUMOUR IN THE EYES OF STAKEHOLDERS
Stakeholders are affected differently by the use of judicial humour. This Part discusses four primary stakeholders in the curial process, namely, litigants, judges, advocates and society-at-large. Other groups, such as witnesses, jurors and court staff, are also relevant to the topic but have been excluded to allow fuller consideration of those selected.
3.1 Litigants
Going to court is a serious matter. Helena Normanton, the first woman to practise as a barrister in England, went so far as to say that ‘the litigant who views his case as material for mirth is an unusual person’.[36] Litigants expect their case to be taken seriously by those who exercise authority over them because their liberty, reputation and money often hang in the balance. This was exemplified by a Victorian case in 2013, in which a judge’s amusing anecdote when giving directions to a jury on inferential evidence was proffered as a ground for appeal.[37] In the result, the appeal was dismissed, but caution was again the order of the day when the Court of Appeal held that:
‘[A]lthough ... there was no misdirection in the use the judge made of [a humorous] story, in my view it would have been more prudent for her Honour not to choose as an example of inferential reasoning a story that was amusing and may have been mistakenly construed as flippant. A judge should exercise great caution before engaging in judicial humour, most especially before a jury.’[38]
There are probably few circumstances in which litigants would favour the use of judicial humour if they are the objects of the judge’s mirth. But humour can be innocuous, or even beneficial to litigants, if it is used to oil the wheels of justice, as described in Part 4 below.
3.2 Judges
The judiciary’s fundamental role, as the third branch of government, is to ‘do right to all manner of people according to law without fear or favour, affection or ill-will’.[39] In the terms of the oft-cited aphorism, ‘justice should not only be done, but should manifestly and undoubtedly be seen to be done’.[40] Much ink has been spilled emphasising the solemnity of the enterprise.
‘It is ... clear that judicial officers should conduct their courts in an ordered and dignified manner. No-one would question that they should be civil, courteous and reasonably patient towards all persons in their courts, including parties and their legal representatives, witnesses, spectators, and court staff. “Flippant or offhand” remarks that might cause offence are to be avoided, and likewise “the use of intemperate language in times of tension.”’[41]
Nevertheless, the fact that humour is used in proceedings and judgments illustrates that some judges believe there is room for jocosity in discharging their functions. An example, intended primarily for legal professionals, is the subtle line of humour found in the catchwords of headnotes, which are generally drafted in a judge’s chambers. Thus, a decision regarding compensation for an injury sustained while packing shelves at Woolworths has a headnote that reads: ‘Civil law – work related injury – crumpets’;[42] while another decision on civil procedure reads: ‘Civil law ... excessive material placed before duty judge – ridiculous estimates as to length of case’.[43]
These humorous occurrences exist despite greater accountability that has accompanied heightened media coverage of the judiciary, and the expansion of formal mechanisms for handling complaints against judges (see Part 5.2). In this vein, a former President of the New South Wales Court of Appeal, Keith Mason, defended judicial humour during a speech given at a law graduation ceremony:
‘Humour must always be moderate, measured and appropriate to the occasion. But beyond this, humour needs no further justification. It is a legitimate expression of humanity and individuality. These are judicial virtues in the eyes of all except those who want courts to be staffed by robots preferably made in their own image.’[44]
According to this view, elaborated in Part 4 below, judges are first and foremost human beings. Those who seek to inject a dose of humour when carrying out their judicial role should not be admonished for it.
3.3 Advocates
Both solicitors and barristers generally have rights of appearance in Australian courts.[45] However, while solicitors may represent their client’s interests in magistrates’ courts, they typically brief barristers to appear in higher courts. By reason of this work, barristers customarily have greater familiarity with the dynamics of the courtroom and the personalities of the small population of judges who inhabit them.
One of their primary tasks as advocates—subject to their overarching duty to the court and the administration of justice[46]—is to persuade the court of the correctness of their submissions. As a means of achieving this end, they may seek to keep the judge in good temper and open to persuasion. There is a thin line between respect, deference and obsequiousness, but humour can be used as a vehicle to traverse that slippery terrain. Advocates are more likely to embrace judicial humour if it assists their client’s cause, leaving solicitors to explain to the client why the judge is bemused.
Repeated interactions between judge and counsel can also provide fertile ground for camaraderie and professional playfulness. Before the judge’s elevation, judge and counsel may have shared chambers, been frequent adversaries in their field of specialisation, or worked together on professional bodies or committees. Senior members of the bar who have missed out, or turned down, judicial appointment may be more experienced than recent appointees before whom they appear. Many barristers are thus untroubled about responding in kind to a judge’s use of humour because they see themselves as the judge’s equal, or even their better. Lest they overstep the bounds of propriety, counsel can take comfort in their immunity from suit for what is said in court.[47]
3.4 Society-at-large
Societal views on the use of judicial humour are difficult to discern. In a past era, Gilbert and Sullivan captured late-19th century English sentiment on the topic in The Mikado—the duo’s most popular comic opera. There, Ko-Ko enumerates a list of ‘society offenders who might well be underground, and who never would be missed’. Among the unfortunates on the Lord High Executioner’s list is ‘that Nisi Prius nuisance, who just now is rather rife, The Judicial humourist—I’ve got him on the list!’[48] Similarly, in our own era, one can glimpse adverse reactions to judicial humour from time to time, such as the letter to a newspaper that was prompted by Gleeson CJ’s quip about used car salesmen early in his judicial career (see Part 2.2). Unsurprisingly, favourable responses to judicial humour are less likely to attract much public attention.
Academic commentary on the issue has been equivocal. John Kleefeld expressed the view that judges are in command when it comes to determining the appropriateness of humour to any particular occasion:
‘The bench typically appreciates the distinction—at times a fine one—and knows how to use humour, whether poetic or prosaic, judiciously. The fact is that serious and distinguished judges—including chief justices—have used wit and gentle sarcasm with great effect, while maintaining respect for the parties whose case they are deciding.’[49]
Other academics have been less kind. In 1952, drawing inspiration from Gilbert and Sullivan, Dean William Prosser prefaced his illustrious book, The Judicial Humorist, with the following passage:
‘Judicial humor is a dreadful thing. In the first place, the jokes are usually bad; I have seldom heard a judge utter a good one. There seems to be something about the judicial ermine which puts its wearer in the same general class with the ordinary radio comedian. He just is not funny. In the second place, the bench is not an appropriate place for unseemly levity. The litigant has vital interests at stake. His entire future, or even his life, may be trembling in the balance, and the robed buffoon who makes merry at his expense should be choked with his own wig.’[50]
Like Dean Prosser, many individuals in society may reject the undue use of judicial humour because it seems at odds with the seriousness normally attached to the law, its institutions and processes. However, if one leaves aside the views of stakeholders who are actively engaged with curial processes, societal views about the judiciary are largely formed by media reports on matters deemed to be of public interest. This often leads to a sensationalised and uninformed depiction of the role of judges, who can be portrayed as being out-of-touch with community norms. This is so even though judges often simply interpret and apply the laws that have been decreed by parliament, or exercise discretions that are vested in them by parliament. Humour can play a part in educating society-at-large about the judicial role, as discussed in Part 4.2.
4 IN SUPPORT OF JUDICIAL HUMOUR
It is clear that divergent opinions exist about the appropriateness of using humour in the exercise of judicial functions. In this Part, we marshal four arguments in support of the use of humour in courtrooms and judgments, as a counter to the prevalence of judicial reticence among Australian judges.
4.1 Humour is human; arguably judges are too
We previously observed that humour is an innate attribute of our humanity. Yet judges are placed in such an exalted position in the community that it is easy to forget they are people like us, with the same predispositions. This was evident in Daryl Dellora’s video documentary, The Highest Court,[51] which secured unprecedented access to the justices of the High Court of Australia, under the stewardship of Chief Justice Brennan, in the wake of the controversial Wik decision.[52] Justices Toohey, Gaudron, Gummow and Hayne joined the Chief Justice in a candid panel interview, which included the following (very human) exchange:
‘Gaudron J: But we all have lives. I mean, you know, we’re all like other human beings. We have to wait in queues, in the outpatients’ departments. You know, we’ve got to go and front up to the ...
Gummow J: Do the shopping.
Gaudron J: Do the shopping in the supermarket, front up to the schoolteacher on parent-teacher night. You know, we all do – we’ve all got lives that take us out into places.
Toohey J: It all seems assumed that you don’t grow up in a family.
Gaudron J: Yes.
Toohey J: And that you don’t have any friends. I mean it’s a matter for everyone what their range of friends is but if you’ve grown up as, say some of us have, with young children and seen them move from birth to adulthood. I mean to talk about my case, with five daughters, all of whom now are adult, to think that you could grow up in that situation without being exposed to a whole range of ideas—and I don’t overlook my two sons—but my daughters are rather more ...
Hayne J: Trouble.’[53]
Judges are people and they should be entitled to use humorous expression as a reflection of their personalities, within appropriate limits, if they so wish.[54] In our view, it is unreasonable to expect judges to adopt steely personae relentlessly from the moment they step into the courtroom to hear argument or retire to chambers to pen a judgment.
Unfortunately, judges seem fated to be stripped of their human qualities because their interactions with the public are severely constrained by their judicial role. James Thomas, a leading writer on Australian judicial ethics, attributes this to the ‘ever-present risk that [a] judge’s comments will be sensationalised or trivialised’,[55] given the media’s focus on entertaining rather than educating audiences. An unhappy consequence of judicial reticence is that the public often perceives judges as relics of yesteryear, out of touch with the communities they serve. This is especially evident from the media frenzy and public outcry that often accompanies the ‘lenient’ sentencing of offenders.[56]
However, this impression of judges is refuted by exchanges such as the High Court dialogue quoted above. Unremitting reticence paints an unattractive picture of judges, who should instead be allowed to deviate from received orthodoxy, if they choose, when hearing cases and writing judgments, in celebration of ‘the prankster and poet in all of us’.[57] Arguably, legal processes are no worse off for being ‘lightened by a smile’.[58] Greater tolerance for natural displays of humour would have the beneficial effect of re-humanising judges, and remoulding their negative image as watchers from an ivory tower, disconnected from the ‘real’ people over whom they sit in judgment.
4.2 Humour promotes open justice
Lord Neuberger, the President of the Supreme Court of the United Kingdom, has argued that a divide exists between the law and the wider community because judges produce judgments that are ‘readable by few, and comprehendible by fewer still’.[59] Introducing a little humour into the judicial process can narrow this gap. Humour seems to make everything easier to understand because people are more readily engaged when they are entertained or, at the very least, when an interlocutor exposes his or her essential humanity. In the hands of talented writers, humour can be a valuable tool in shaping legal discourse.[60] In other words, there is social utility in giving judges flexibility to employ humour in the exercise of their official functions because people become more interested in the legal process and are better able to understand the judicial role.
The principle of open justice begs for simplification of the written legal word,[61] particularly where ever-present cuts to legal aid may precipitate the rise of self-represented litigants.[62] By way of comparison, political cartoons accomplish this goal, having the ability to distil topical and often complex issues creatively and succinctly for the reader through the use of irony, satire and humour. The United States Supreme Court, for example, has been the target of cartoonists at The New Yorker for decades.[63] Unlike Normanton, Peter Goodrich has argued that mirth mobilises audiences and goes some way to breaking the mould of legal solemnisation and the humourlessness of contemporary law,[64] but Kent Bridwell put it best in saying ‘legitimate fun may be properly extracted from the sanctimonious domain of justice’.[65]
The issue may also be seen through the prism of the rule of law. Joseph Raz has argued that clarity and openness are important principles underpinning the rule of law because they allow people to know the law for the purpose of short-term decision making and long-term planning: ‘An ambiguous, vague, obscure, or imprecise law is likely to mislead or confuse at least some of those who desire to be guided by it.’[66] While this derives from a ‘thin’ or ‘formal’ version of the rule of law which does not address the characteristics of a good system of laws, it is widely accepted as a minimum content of the rule of law.[67] This dimension of the rule of law has received judicial approbation: the House of Lords once criticised a poorly drafted English statute with the observations that it had taken the judges of the court—‘all skilled lawyers of very considerable experience’—hours to ascertain the law, and that ‘absence of clarity is destructive of the rule of law’.[68] Just as statutes may be made clearer and more accessible by improved legislative drafting, so too may judgments be bettered by humour.
One must, however, accept the caveat proposed by Susan Rushing that the success or failure of judicial humour depends on whether it aids or hinders a judge in composing an effective judgment.[69] Accordingly, when using humour, judges should at least turn their minds to the goal of promoting clarity. While this might appear at first glance to conflict with the argument that humour is quintessentially human, the exercise of discretion and restraint are also very much a part of human make-up.
4.3 Humour oils the wheels of justice
Allied to the previous argument is the claim that judicial humour can oil the wheels of justice, beyond giving greater clarity to the law. The claim is easiest to appreciate in relation to oral hearings, where humour can ease courtroom tensions and alleviate counsels’ frustration during argument.[70] It has been said that ‘judicial officers should take all reasonable steps to put parties at ease’.[71] Humour can help ensure that the hearing and resolution of adjudicated disputes proceed smoothly on both sides of the bar table. During hearings, it is often exercised in a self-deprecating manner, helpfully shifting the attention to the judges themselves in circumstances where, for example, inexperienced counsel may be struggling with a complex proposition of law or participants are ill at ease in the unfamiliar context of the courtroom.[72] This form of humour should not be seen as harmful to the legal process. If judges have a sense of humour about themselves, ‘this can assist in ensuring that the mood in the courtroom is positive which, in turn, can ensure that the hearing is conducted in an efficient and harmonious manner.’[73] Ultimately, the reasoning of Jessica Milner Davis and Troy Simpson aptly justifies the use of humour: ‘the issues in litigation are serious. Too serious, perhaps, not to be occasionally taken light heartedly.’[74]
Humour can also lubricate the wheels of justice with respect to written reasons, relieving the judge’s tedium in writing judgments and the audience’s tedium in reading them.[75] The need for relief is apparent from claims that the length of judgments, and the number of separate opinions in appellate courts, increased markedly over the 20th Century.[76] Reviewing the practice of High Court judgment-writing over the century 1903–2001, Matthew Groves and Russell Smyth found that the average length of judgments had more than doubled, with a marked upturn beginning in the early 1980s.[77] Judges (at least in retirement) appear to be sensitive to the challenges this presents for legal consumers. In an interview given shortly after his retirement from the High Court of Australia, Dyson Heydon reflected on his practice of adding ‘colourful parts ... if there are any’[78] to written reasons:
‘You say to yourself, we have to liven it up a bit—the readers will not get this far unless there is something they can pay some attention to every five or ten pages so then you try and introduce a little bit of wit.’[79]
Justice Michael Kirby has echoed these sentiments. During oral argument in Cattanach v Melchior, in which damages were sought for the cost of raising an unintended child following a negligent sterilisation procedure, the High Court bench parleyed the use of biblical parables in judgments.
‘Kirby J: It is a long time since I have seen references to applying the parables of the Bible in Australian courts. ...
Callinan J: Justice Kirby referred to the New Testament itself in [the] Perils of the Sea Case.
Kirby J: I do not think it was the ratio of my decision. It is just a literary [allusion] that I put in to wake people up.’[80]
The exchange is not especially amusing, but it is alive to the need to make written decisions sufficiently engaging to attract a reader’s attention. Humour can serve that function.
4.4 Humour serves as a social corrective
Judicial humour can have a socially corrective function when it is used by a judge to chide, admonish or rebuke participants in the legal process, provided it falls short of sarcasm. The object of a judge’s attentions can be a plaintiff or defendant, but the sharpest barbs are often reserved for counsel.
Consider, for example, Sir Hayden Starke, a former justice of the High Court of Australia, who was well known for his acerbity and black humour.[81] He is said to have become increasingly disgruntled over his long term of office, reserving his ‘most pugnacious shafts’ for his colleagues on the bench.[82] However, counsel were also given a hard time, as the following judgment shows:
‘This is an appeal from the Chief Justice, which was argued by this Court over nine days, with some occasional assistance from the learned and experienced counsel who appeared for the parties. The evidence was taken and the matter argued before the Chief Justice in two days. This case involves two questions, of no transcendent importance, which are capable of brief statement, and could have been exhaustively argued by the learned counsel in a few hours.’[83]
The learned counsel, whom Starke J disparaged for wasting court time, included Owen Dixon for the appellant, who joined the High Court bench three months later; and Charles Gavan Duffy for the respondent, who was appointed to the Supreme Court of Victoria a few years later.
Humour can also be used to chasten litigants. In a United States District Court in Pennsylvania in 1971, Weber J was confronted with a plaintiff seeking leave to file a civil rights complaint against Satan and his servants. The plaintiff claimed to have been deprived of his constitutional rights because ‘Satan [had] on numerous occasions caused the plaintiff misery and unwarranted threats, against the will of plaintiff ... [had] placed deliberate obstacles in his path and [had] caused plaintiff’s downfall.’[84] In his written opinion, Weber J unsurprisingly dismissed the plaintiff's application. However, in doing so, he assessed the claim on three genuine legal grounds, including conflict of laws principles regarding personal jurisdiction over the defendant. Ultimately, the plaintiff’s failure to provide ‘the required form of instructions for the United States Marshal for directions as to service of process’ against Satan was fatal to the claim.[85] In effect, the judge ridiculed the plaintiff’s actions in wasting court resources by making the suit a matter of public record, rather than summarily dismissing the complaint ex tempore. Such public ridicule can have a socially corrective effect, enhancing ‘capacity for change’[86] by deterring future plaintiffs from bringing frivolous or vexatious actions.
However, this function of judicial humour has its dangers. Judges should choose their targets carefully, reserving ridicule for: (a) cases that a reasonable observer would view as having no legal merit; (b) litigants with greater knowledge of the law than the average layperson; or (c) situations where the ridicule may have occurred in any event by virtue of the public attention drawn to the matter. In relation to the first and second categories, consider Fisher v Lowe, where the Michigan Court of Appeals considered a tort claim for damage done to the plaintiff’s tree as a result of a car accident.[87] The trial court rejected the claim, and the appellate court agreed, couching its entire opinion in verse:
‘We thought that we would never see
A suit to compensate a tree.
A suit whose claim in tort is prest
Upon a mangled tree's behest;
A tree whose battered trunk was prest
Against a Chevy's crumpled crest;
A tree that faces each new day
With bark and limb in disarray;
A tree that may forever bear
A lasting need for tender care.
Flora lovers though we three,
We must uphold the court's decree.
Affirmed.’[88]
Former Justice of the Arkansas Supreme Court, George Smith, called the case a ‘classic illustration of the tail wagging the doggerel’.[89] However, Smith’s critique considers the judgment in isolation, failing to take into account all the circumstances surrounding the case. Pamela Hobbs has argued that the treatment meted out by the Court of Appeals was justified: the claim was statute barred, and the plaintiff ‘was himself an attorney and was thus chargeable with the knowledge that his case was devoid of legal merit’.[90] Even so, it is difficult to justify the use of law reports as an outlet for verse that would never find its way into a published anthology.
In relation to the third category, consider the approach adopted by the United States Court of Appeals for the Ninth Circuit in Mattel Inc. v MCA Records Inc.[91] The appellant alleged a violation of Mattel’s ‘Barbie’ trademark by the publication of the song Barbie Girl, which was the 1997 breakthrough single of the Danish Eurodance band, Aqua. Konzinski J (a recidivist wit), giving the decision of a unanimous court, left no doubt that Mattel’s claim was unmeritorious. In his opinion, Mattel had successfully transformed Barbie from a doll that ‘resembled a German street walker’ into an American cultural icon, but that did not give it the right, through its trademark, to control how individuals expressed themselves, including parodying the values that the band said Barbie stood for.[92] After noting the barbs traded by the litigants in the press, Kozinski J concluded: ‘The parties are advised to chill.’[93] However, the advice was not taken. Mattel filed another suit one year later—this time in relation to photographic works of Barbie juxtaposed with vintage kitchen appliances—and was again disparaged when the suit was found to be groundless and dismissed with costs.[94] In this vein, judicial humour serves a utilitarian purpose by indirectly upholding the values of the court process and holding litigants to account.
5 STRIKING THE BALANCE
Demonstrating that there is a role for humour in the exercise of judicial functions is not the end of the inquiry. It is also necessary to ask whether the use of humour impermissibly conflicts with the ethical obligations and standards of conduct expected of judges. Given that judges must both be, and be seen to be, fair and impartial, there is a potential for conflicts to arise between the discharge of their duties and the use of humour. This Part explores these points of tension.
5.1 Judicial ethics
Roderick (‘Roddy’) Meagher was a judge of the New South Wales Court of Appeal from 1989 to 2004, and a renowned proponent of judicial humour in theory and practice.[95] In one case, Meagher JA gave the primary judgment in a case concerning the ‘development of certain land said to be situated at Bossley Park (wherever that is)’.[96] In response, the President of the Court, Keith Mason, was ‘goaded’[97] into making some ‘perspicuous remarks’[98] in a separate judgment concerning Meagher JA’s lack of knowledge about the location of suburbs of lower socio-economic status than Meagher’s harbour side suburb of Darling Point:[99]
‘I have had the benefit of reading in draft the reasons of Meagher JA. I also have the benefit of having access to a street directory. Accordingly, I do not share his Honour’s customary doubts about the location of well-known Sydney suburbs lying to the west of Darling Point which sit cheek by jowl with his Honour’s customary lack of doubts about most other matters. A useful resource for those who need to locate Bossley Park is http://www.travelmate.com.au. By clicking on “map maker” one can find easy ways of getting from, say, Darling Point to that suburb.’[100]
Meagher JA had the last laugh, however, as he was responsible for preparing the headnote that accompanied the judgment,[101] which included the President’s remarks in the ratio of the decision: “HELD per Mason P (Beazley JA agreeing): A useful resource for those who need to locate Bossley Park is http://www.travelmate.com.au ...”. Such playful and humorous behaviour, which belittles a litigant on the one hand and deprecates a judicial colleague on the other, might appear harmless, but it can also be viewed as self-indulgent and has the potential to interfere with a judge’s ethical obligations.
Consider, for instance, an appeal concerning the ability of judges to take the demeanour of witnesses into account in their judgments, where Meagher JA and Kirby P disagreed and used their written reasons to trade barbs between themselves.[102] Meagher JA claimed that one aspect of Kirby P’s judgment was so extraordinary that it could not be allowed to pass with the apparent approval of his brethren, namely, that Kirby P had developed ‘an elaborate, and distinctly xenophobic, rodomontade’ in criticising the demeanour of a Macedonian witness.[103] The third judge in the matter (Cripps JA) approached the Chief Justice of New South Wales about the dilemma and was counselled, ‘Oh, we don’t want this published’,[104] and it remains unreported.
If a dispassionate reader finds humour in these cases, it stems from the voyeuristic pleasure of observing a stoush between irrepressible professional colleagues. However, humour is imprudent in cases where personal attacks laid upon a judicial colleague result in a media furore that depicts the judiciary in a negative light and impacts on the image of impartiality and respectability of judges.[105] Imprudence can escalate to unethical behaviour where an individual judge’s desire to be witty overwhelms the objective of achieving a swift and just resolution of the dispute according to law. In this vein, Gerald Lebovits et al contend that humour and ethics are mutually exclusive concepts, arguing that the role of the judge demands propriety and professionalism because judges hold a position of power over litigants who have a serious personal stake in the litigation.[106]
As previously indicated, situations inevitably arise where the use of humour by judges is inappropriate, but it should not be concluded that humour is unethical in and of itself. The Australian Guide to Judicial Conduct, produced under the auspices of the Council of Chief Justices of Australia, following a survey of judges, makes but a single reference to the word ‘humour’. While asserting the entitlement of everyone who comes to court to be treated with dignity, the Guide observes:
‘The trial of an action, whether civil or criminal, is a serious matter but that does not mean that occasional humour is out of place in a courtroom, provided that it does not embarrass a party or witness. Indeed it sometimes relieves tension and thereby assists the trial process.’[107]
Surprisingly, the British and United States federal equivalents of the Guide are silent on the topic.[108] They instead focus on the ethical requirements of the role, including diligence, independence, integrity and propriety. In Marshall Rudolph’s opinion, judicial humour poses a direct risk only to the image of propriety required of the judicial role.[109] However, this risk does not necessitate unconditional censure of judicial humour. With the proper guidance, judges are capable of balancing a variety of obligations that stand in tension to each other. Rudolph’s solution involved drafting an amendment to the American Bar Association’s Code of Judicial Conduct to state that the use of humour in a judicial opinion is inappropriate if, inter alia, a reasonable litigant would feel that he or she had been made the subject of amusement.[110]
In our view, a prescriptive approach is unnecessary in light of the fact that judges are nearly always former legal advocates who have had extensive experience in balancing the interests of the court, the client, the community, and colleagues. Judges would simply do well to follow, distinguish or reverse the approaches taken to humour by judges past. Where that fails, litigants may apply to a judge to disqualify himself or herself from hearing the dispute. If the desired outcome is not achieved, the litigant has recourse to judicial review of that decision on the basis that the judge’s use of humour has amounted or may amount to apprehended bias. The High Court has confirmed that a judge may be disqualified from hearing a matter in cases where conduct in the course of proceedings gives rise to an apprehension of bias.[111] The test is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.[112] Given the protections afforded to stakeholders, judges should, while giving due consideration to their overarching ethical obligations, be left to use their discretion in relation to the use of humour.
5.2 Judicial misconduct
In addition to their ethical obligations, judicial officers are expected to adhere to high standards of conduct when carrying out their duties. The monitoring and enforcement of these standards varies across jurisdictions but in general terms they derive from two sources—the norms regulating the removal of judicial officers from office, and those governing the handling of other complaints against the judiciary.
Taking Australian federal judges as an example, until recently the only formal deterrent for inappropriate behaviour was a single provision in the Australian Constitution that allows for the removal of federal judicial officers on an address from both Houses of Parliament on the ground of ‘proved misbehaviour or incapacity’.[113] A similar provision is found in the constitutions or constitutive legislation for the courts in all states and territories.[114] They derive from the English Act of Settlement 1701, which established life tenure for judges ‘during good behaviour’ as a central pillar of judicial independence.[115]
The Australian provision was the subject of passionate debate during the Lionel Murphy affair in the 1980s,[116] which highlighted ‘how singularly ill-equipped our parliamentary procedures were to discharge that weighty responsibility’.[117] More than three decades later the Australian Parliament enacted the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012 (Cth), which creates a mechanism to assist Parliament in exercising its constitutional powers of removal by establishing a parliamentary commission.[118] The Act defines ‘misbehaviour’ to have the same meaning as in s 72 of the Constitution, which thus leaves it to Parliament to assess whether any impugned conduct satisfies the requirements of ‘proved misbehaviour’.[119]
The question arises whether the inappropriate use of humour by judicial officers in proceedings or judgments can amount to misbehaviour such as to warrant removal. At the time of the Murphy affair, discussion of ‘misbehaviour’ focussed on whether the alleged misconduct had to occur in the course of carrying out the duties of office and whether the conduct had to amount to a serious criminal offence[120]—both of which properly drew a negative response. The use of judicial humour is clearly conduct that arises in the performance of judicial duties, and is non-criminal, even if blameworthy. Although it is ultimately a matter for Parliament to assess each case according to the standards of the day, it is nigh impossible to imagine a use of humour that is so ill-judged as to prompt Parliament to remove a judge from office. During the 17th Century, the transfer and removal of troublesome judges by the Stuart Kings made some ‘pretty black pages of history’,[121] but not even they were so capricious as to sack a judge for a bad joke.
It is much more likely that complaints involving allegations of inappropriate judicial humour would have to be assessed by the standards applicable to complaints against judicial officers. As the Law Reform Commission of Western Australia has commented, one distinct class of complaints concerns behavioural issues, namely, ‘complaints of matters such as rudeness, insensitivity, perceptions of unfair treatment or other conduct falling short of the level expected of a judicial officer but which, if established, could not reasonably be regarded as warranting removal from office’.[122] Judicial humour falls in this class.
Historically, the procedures for handling complaints against Australian judicial officers have been informal and internal to the judiciary, with significant authority vested in the head of jurisdiction to dismiss complaints, take administrative action, or refer the matter to appropriate authorities.[123] New South Wales has established a more formal mechanism to investigate complaints through a standing statutory body,[124] and it is likely that, in time, other jurisdictions will move towards more transparent institutions and processes.[125] A recent example can be seen in the 2012 legislative amendments to establish a complaints handling mechanism for federal courts other than the High Court.[126] These allow a complaint about a judge’s performance of his or her judicial or official duties to be actioned in the first instance by the head of jurisdiction, who is authorised to deal with the complaint and to take any measures believed reasonably necessary to maintain public confidence in the court, such as temporarily restricting the judge to non-sitting duties. The barriers to redress are much lower than under the Constitution—measures may be taken not only where the circumstances, if substantiated, justify consideration of removal, but also where they adversely affect the reputation of the court.[127]
In light of these developments, it is important to ask whether stakeholders are adequately protected by existing complaints mechanisms. If so, the use of judicial humour is further justified because, in the unlikely event that judges exceed the bounds of propriety, procedures are in place to remedy the problem.
An instructive example is the public report of the Conduct Division of the Judicial Commission of New South Wales in relation to complaints against Magistrate Brian Maloney of the New South Wales Local Court in 2011.[128] Among other things, Magistrate Maloney was said to have incited laughter from those present in Court, at the expense of self-represented litigants. For example, in relation to an application for an Apprehended Violence Order by a self-represented litigant who required the assistance of an interpreter, the magistrate attempted to convince the applicant to withdraw his application. The magistrate asked the interpreter to explain the benefits of that course ‘in Arabic words like “and” and “but” so he understands’.[129] Ultimately, the applicant demanded a hearing, resulting in the magistrate expressing the following comment: ‘Phew. Cheerio. I’ll put that down for four hours. That’ll go forever and ever’.[130] The applicant later complained that he felt humiliated by the magistrate’s conduct in causing people to laugh at him. After due inquiry, the Conduct Division found that these and other complaints were substantiated and could justify parliamentary consideration of his removal from office. However, because the magistrate’s ‘most unjudicial course of conduct’ arose from mental illness (bipolar disorder), removal was only justifiable on the ground of incapacity, not misbehaviour.[131] In the result, the Parliament voted to allow Magistrate Maloney to continue on the bench, after finding that his mental illness did not leave him sufficiently incapacitated to warrant removal.
Consider too the United States case involving Rome J, of the Kansas Magistrate Court, who exposed a sex worker to public ridicule after she had been charged with soliciting an undercover police officer. His written memorandum of decision comprised a bawdy 47-line verse, of no redeeming lyric value, which began as follows:
This is the saga of [name omitted]
Whose ancient profession brings her before us.
On January 30th, 1974,
This lass agreed to work as a whore.
Her great mistake, as was to unfold,
Was the enticing of a cop named Harold.[132]
Perhaps because judicial humour is more commonplace in United States case law, or because the attitude of the times toward blatantly sexist conduct was more complaisant, the Kansas Supreme Court formed the view that the seriousness of Rome J’s conduct was not ‘of the greatest magnitude’.[133] Nevertheless, Rome J was formally censured by the Supreme Court for failing to afford the litigant the kind of treatment mandated by the state’s Code of Judicial Conduct. The Court was at pains to point out that the primary judge had a discretion to write his opinion in any way he chose, including in poetic form. However, the manner in which this was done had exposed the litigant to public scorn, and the judge had thus failed to be ‘patient, dignified and courteous to litigants’, as the canons of behaviour required. Rome was not built in a day, but he was certainly burned in one.
These instances of misconduct arise from the misuse of humour’s social corrective function, which is a risk of using humour in the exercise of judicial functions. However, the fact that impugned conduct can be exposed to public scrutiny through disciplinary proceedings suggests that grossly inappropriate humour can and will be censured. If stakeholders are assured of protection against excess, they are more likely to embrace judicial humour as a valuable part of the legal process.
6 CONCLUSION
This article has advocated a place for humour in the legal process. In our opinion, humour should not be considered taboo, but nor should it be considered open season for any exhibition of judicial jocularity. Humour can fulfil a variety of purposeful roles in the exercise of judicial functions, both in oral hearings and written decisions. If used appropriately, humour is compatible with the ethical demands imposed on judicial officers and has rarely been held to amount to judicial misconduct in isolation. The concern remains where the line should be drawn between what is appropriate and what exceeds the mandate. At the end of the day, it is a matter of trust. Society invests trust in judges to exercise their discretion when hearing and determining legal disputes. Does it not follow that judges are also capable of exercising their discretion as to when, where and how to employ humour? Smith thought so:
‘The controlling principles are, primarily, that the humor be genuinely relevant to the court’s analysis and, secondarily, that it be as brief as possible, that it not offend anyone, and that it be in no sense a display of the writer’s cleverness. With those limitations, let judicial humor lie within the sound discretion of the court.’[134]
This article has argued that Australian judges appear to favour reticence in their approach to humour when carrying out judicial functions. In consequence, it is uncommon when engaging with counsel in oral proceedings and rarer in written judgments. This reticence is neither justified nor reflective of Australian society. In our opinion, the critics of judicial humour have been weighed, measured and found wanting. Given that benefits to the stakeholders often outweigh the detriments, judges deserve the benefit of the doubt.
[*] We wish to acknowledge the insightful comments on a draft of this article generously afforded to us by Justice Mark Leeming and another judge who indicated a preference for anonymity. The opinions expressed, and any remaining errors, are our own.
[1] EB White, The Second Street from the Corner (Harper & Row, 1965) 165.
[2] See, eg, Sharyn Roach Anleu, Kathy Mack and Jordan Tutton, 'Judicial Humour in the Australian Courtroom' [2014] MelbULawRw 24; (2014) 38 Melbourne University Law Review 621.
[3] A S Gillespie-Jones, The Lawyer Who Laughed (Hutchinson, 1978); A S Gillespie-Jones, The Lawyer Who Laughed Again (Hutchinson, 1980); A S Gillespie-Jones, The Lawyer Who Laughed Longer (Hutchinson, 1982). See also the Bullfry column in the NSW Bar Association’s Bar News, lauded in Ingmar Taylor and Kate Williams, 'Twenty-five Years of Bar News' (2010-11) (Summer) Bar News 32, 37.
[4] Keith Mason, Lawyers Then and Now: An Australian Legal Miscellany (Federation Press, 2012); Keith Mason, Old Law, New Law: A Second Australian Legal Miscellany (Federation Press, 2014).
[5] Lucas Hori, 'Bons Mots, Buffoonery, and the Bench: The Role of Humor in Judicial Opinions' (2012) 60 UCLA Law Review Disclosure 16, 22–30.
[6] Jonathan Balcombe, Pleasurable Kingdom: Animals and the Nature of Feeling Good (Macmillan, 2006).
[7] Jesse Bering, 'The Rat That Laughed' (2012) 307(1) Scientific American 74.
[8] Graham Seal, 'Folk Humour' in Gwenda Beed Davey and Graham Seal (eds), The Oxford Companion to Australian Folklore (Oxford University Press, 1993) 213, 213.
[9] Cliff Goddard, 'Sarcastic, Deadpan, Irreverent: A Semantic Guide to Australian Ways of Laughing' (Paper presented at the Australasian Humour Studies Network Annual Conference, Adelaide, 4-6 February 2015).
[10] Commonwealth, Parliamentary Debates, Senate, 29 November 2006, 111-14 (Senator Ellison).
[11] Philip Ruddock, 'Protecting Your Right to Mock', Daily Telegraph (online), 30 November 2006.
[12] Peter Young, 'Current Issues' (2014) 88 Australian Law Journal 447, 449. The judge who reported on the incident was critical of the magistrate’s behaviour, suggesting it was difficult to see how the magistrate’s public comment could assist the administration of justice.
[13] Personal correspondence, 17 February 2015, on file with the authors.
[14] Mead v Lemon [2015] WASC 71 (26 February 2015), [45] (Sanderson M).
[15] Anchorage Capital Partners Pty Limited v ACPA Pty Ltd [2015] FCA 882 (21 August 2015), [51] (Perram J).
[16] Productivity Commission, 'Report on Government Services 2015' (2015) Ch 7 Attachment tables.
[17] Roach Anleu, Mack and Tutton, above n 2, 660.
[19] Green v Green (1989) 17 NSWLR 343, 346 (Gleeson CJ).
[20] Michael Pelly, Murray Gleeson: The Smiler (Federation Press, 2014) 162–3.
[21] ibid, 163.
[22] Sir Anthony Mason, 'Judicial Independence and the Separation of Powers: Some Problems Old and New' (1990) 24 University of British Columbia Law Review 345, 352–4.
[23] Roach Anleu, Mack and Tutton, above n 2, 639.
[24] Judicial decisions and transcripts are reported on the High Court’s website: www.hcourt.gov.au/.
[25] Jonathan Pearlman, 'Jesters Who Brought Humour to Top Court', Sydney Morning Herald (online), 3 September 2007 <www.smh.com.au/news/national/jesters-who-brought-humour-to-top-court/2007/09/02/1188671797001.html>; Michael Pelly, 'High Court’s Resident Jester Hayne Missing in Action', The Australian (online), 18 March 2011 <www.theaustralian.com.au/business/legal-affairs/high-courts-resident-jester-hayne-missing-in-action/story-e6frg97x-1226023543927>.
[26] Judiciary Act 1903 (Cth) ss 35–35A.
[27] Transcript of Proceedings, Ceremonial Sitting to Mark the Occasion of the Swearing-In of the Hon Stephen John Gageler as a Justice of the High Court of Australia [2012] HCATrans 258 (9 October 2012).
[28] Alfred, Lord Tennyson, Alymer’s Field (1793).
[30] Baigent v Random House Group Ltd [2006] EWHC 719 (7 April 2006); Dan Tench, 'How Judge’s Secret Da Vinci Code Was Cracked', The Guardian (online), 28 April 2006 <www.theguardian.com/uk/2006/apr/28/books.danbrown>.
[33] Note, ‘The Syufy Rosetta Stone’ [1992] Brigham Young University Law Review 457.
[34] Braham v Sony/ATV Music Publishing (D Cal, No 2:15-cv-8422-MWF (GJSx), 10 November 2015).
[35] Titus Lucretius Carus, On the Nature of Things (trans Cyril Bailey) (Clarendon Press, 1910), 164 (Book IV, line 637): ‘what to some is noisome and bitter, can yet seem to others most sweet to eat’.
[36] Helena Normanton, 'American Courts' (1925) 14(3) Women Lawyers’ Journal 9, 10.
[38] ibid [54] (Tate JA, Whelan and Santamaria JJA concurring).
[39] These words form part of a High Court justice’s oath of office: High Court of Australia Act 1979 (Cth) s 11, Sch. Other courts have cognate provisions.
[40] R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256, 259 (Lord Hewart). See also JJ Spigelman, 'Seen to Be Done: The Principle of Open Justice – Part I' (2000) 74 Australian Law Journal 290; JJ Spigelman, 'Seen to Be Done: The Principle of Open Justice – Part II' (2000) 74 Australian Law Journal 378.
[41] David Wood, 'Judicial Ethics: A Discussion Paper' (Australian Institute of Judicial Administration, 1996) 15.
[42] Woolworths Ltd v Howarth [2015] NSWSC 1624 (11 November 2015).
[43] Day v Harness Racing New South Wales [2014] NSWSC 1024 (25 July 2014).
[45] See, eg, Judiciary Act 1903 (Cth) s 55, with respect to federal courts and state courts exercising federal jurisdiction.
[46] See, eg, Law Society of New South Wales, 'New South Wales Professional Conduct and Practice Rules 2013 (Solicitors' Rules)' (2013) r 3; New South Wales Bar Association, 'New South Wales Barristers’ Rules' (New South Wales Bar Association, 2014) rr 25–36.
[48] WS Gilbert and Arthur Sullivan, The Mikado (1885) Act I, ‘As Some Day It May Happen’.
[49] John Kleefeld, 'Rhyme and Reason (Sub Nom. The Dreadfulest Thing of All)' (2004) 62(3) The Advocate 351, 359.
[50] William Prosser (ed), The Judicial Humorist: A Collection of Judicial Opinions and Other Frivolities (Little, Brown, 1952) vii.
[51] The Highest Court (Directed by Daryl Dellora, Film Art Doco, 1998).
[52] Wik Peoples v Queensland (1996) 187 CLR 1. The decision held that a statutory lease of pastoral land did not necessarily extinguish native title rights.
[53] The Highest Court (Directed by Daryl Dellora, Film Art Doco, 1998), 0:27:09.
[55] James Thomas, Judicial Ethics in Australia (LexisNexis Butterworths, 3rd ed, 2009) 134.
[56] See, eg, Amy Dale, 'What Justice? Kieran Loveridge’s Four Years’ Jail for Taking the Life of Thomas Kelly with a King Hit', Daily Telegraph (online), 9 November 2013 <www.dailytelegraph.com.au/news/nsw/what-justice-kieran-loveridges-four-years-jail-for-taking-the-life-of-thomas-kelly-with-a-king-hit/story-fni0cx12-1226756218157>.
[59] David Neuberger, 'Open Justice Unbound?' (Paper presented at the Judicial Studies Board Annual Lecture, 16 March 2011).
[62] Carolyn Bond, 'Legal Aid Cuts a Worrying Sign from the Abbott Team', The Age (online), 19 September 2013 <www.theage.com.au/comment/legal-aid-cuts-a-worrying-sign-from-the-abbott-team-20130918-2tzkj.html>.
[66] Joseph Raz, The Authority of Law: Essays on Law and Morality (Oxford University Press, 2nd ed, 2009) 214.
[67] Brian Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge University Press, 2004), 91–101.
[68] Merkur Island Shipping Corporation v Laughton [1983] 2 AC 570, 594–5, 612.
[72] For examples of self-deprecatory humour, see Roach Anleu, Mack and Tutton, above n 2, 646–7.
[75] ibid, 329.
[76] Enid Campbell, 'Reasons for Judgment: Some Consumer Perspectives' (2003) 77 Australian Law Journal 62, 63, 68.
[77] Matthew Groves and Russell Smyth, 'A Century of Judicial Style: Changing Patterns in Judgment Writing on the High Court 1903-2001' (2004) 32 Federal Law Review 255, 258–66.
[78] ABC Radio National, 'Justice Dyson Heydon', Sunday Profile, 15 March 2013 (Dyson Heydon).
[79] ibid.
[80] Transcript of Proceedings, Cattanach v Melchior (High Court of Australia, No B22 of 2002, Full Court, 12 February 2003) 86–7. Ironically, it was Callinan J, not Kirby J, who discussed the Judeo-Christian roots of ‘perils of the sea’: Great China Metal Industries Co Ltd v Malaysian International Shipping Corporation Berhad [1998] HCA 65; (1998) 196 CLR 161, [184].
[81] Milner Davis and Simpson, above n 74, 328.
[82] Graham Fricke, 'Hayden Erskine Starke' in Tony Blackshield, Michael Coper and George Williams (eds), Oxford Companion to the High Court of Australia (Oxford University Press, 2001) 637, 638.
[83] Federal Commissioner of Taxation v Hoffnung & Co Ltd [1928] HCA 46; (1928) 42 CLR 39, 62 (Starke J).
[85] ibid.
[87] Fisher v Lowe 333 NW 2d 67 (Mich Ct App, 1983).
[88] ibid.
[91] Mattel Inc. v MCA Records Inc [2002] USCA9 532; 296 F 3d 894 (9th Cir, 2002).
[92] Any doubts about the parodying intent of the song would seem to be allayed by the band’s music video: https://www.youtube.com/watch?v=ZyhrYis509A.
[93] Mattel Inc. v MCA Records Inc [2002] USCA9 532; 296 F 3d 894 (9th Cir, 2002) 908.
[94] Mattel Inc v Walking Mountain Productions [2003] USCA9 843; 353 F 3d 792 (9th Cir, 2003).
[95] See, eg, R P Meagher, 'Australian Judicial Humour' (1957) Blackacre: Journal of the Sydney University Law Society 8.
[96] JPQS Pty Ltd v Cosmarnan Construction Pty Ltd [2003] NSWCA 66 (2 July 2003), [7] (Meagher JA).
[97] Mason, above n 4, Lawyers Then and Now, 26.
[98] JPQS Pty Ltd v Cosmarnan Construction Pty Ltd [2003] NSWCA 66 (2 July 2003), [32] (Beazley JA).
[99] Damien Freeman, Roddy’s Folly: RP Meagher QC – Art Lover and Lawyer (Connor Court Publishing, 2012) 156.
[100] JPQS Pty Ltd v Cosmarnan Construction Pty Ltd [2003] NSWCA 66 (2 July 2003), [1]-[2] (Mason P).
[101] Mason, above n 4, Lawyers Then and Now, 26.
[103] ibid, 8. The tensions between the two continued beyond the grave: Michael Kirby, 'R P Meagher and I: The Best of Times. The Worst of Times' (2011) 35 Australian Bar Review 26.
[105] Kathleen Hickie, 'Judges at War Over ‘Xenophobic Rodomontade’', Sydney Morning Herald (Sydney), 18 June 1993, 1; Brook Turner, 'Judges Trade Insults', Australian Financial Review (Sydney), 18 June 1993, 4.
[106] Gerald Lebovits, Alifya Curtin and Lisa Solomon, 'Ethical Judicial Opinion Writing' (2008) 21 Georgetown Journal of Legal Ethics 237, 272.
[108] Judiciary of England and Wales, 'Guide to Judicial Conduct' (Judiciary of England and Wales, 2013) <www.judiciary.gov.uk/Resources/JCO/Documents/Guidance/judicial_conduct_2013.pdf>; Judicial Conference of the United States, 'Guide to Judiciary Policy: Code of Conduct for United States Judges' (Judicial Conference of the United States, 20 March 2014) <www.uscourts.gov/uscourts/RulesAndPolicies/conduct/Vol02A-Ch02.pdf>.
[110] ibid 195.
[111] Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, 74 (Deane J).
[113] Australian Constitution s 72(ii).
[114] Law Reform Commission of Western Australia, 'Complaints against Judiciary, Discussion Paper, Project 102' (Law Reform Commission of Western Australia, 2012) 2.
[115] Brian Opeskin, 'Models of Judicial Tenure: Reconsidering Life Limits, Age Limits and Term Limits for Judges' (2015) 35 Oxford Journal of Legal Studies 627.
[116] Thomas, above n 55, 15–20.
[117] Commonwealth, Parliamentary Debates, House of Representatives, 31 May 2010, 4709-10 (Duncan Kerr).
[118] Andrew Lynch, 'Judicial Complaints and Suspension' (2012) 23 Public Law Review 81, 81.
[119] Explanatory Memorandum, Judicial Misbehaviour and Incapcity (Parliamentary Commissions) Bill 2012 (Cth) 10.
[120] Geoffrey Lindell, 'The Murphy Affair in Retrospect' in H P Lee and George Winterton (eds), Australian Constitutional Landmarks (Cambridge University Press, 2003) 280, 287–90.
[121] C H McIlwain, 'The Tenure of English Judges' (1913) 7(2) American Political Science Review 217, 222. In the last 11 years of his reign, King Charles II (1660–1685) dismissed 11 of his judges; while his brother King James II (1685–1688) dismissed 13 judges in four years, including four in one day.
[122] Law Reform Commission of Western Australia, above n 114, 4.
[123] For reviews, see H P Lee, 'Appointment, Discipline and Removal of Judges in Australia' in H P Lee (ed), Judiciaries in Comparative Perspective (Cambridge University Press, 2011) 27; Law Reform Commission of Western Australia, 'Complaints against Judiciary, Final Report, Project 102' (Law Reform Commission of Western Australia, 2013); Gabrielle Appleby and Suzanne Le Mire, 'Judicial Conduct: Crafting a System that Enhances Institutional Integrity' [2014] MelbULawRw 9; (2014) 38 Melbourne University Law Review 1.
[124] Judicial Officers Act 1986 (NSW), establishing the Judicial Commission (Pt 3) and its Conduct Division (Pt 5).
[125] This has been recommended for Western Australia: Law Reform Commission of Western Australia, above n 123, 103–8.
[126] Courts Legislation Amendment (Judicial Complaints) Act 2012 (Cth).
[127] See definition of ‘relevant belief’ in Family Law Act 1975 (Cth) s 4; Federal Court of Australia Act 1976 (Cth) s 4; Federal Circuit Court of Australia Act 1999 (Cth) s 5.
[128] Judicial Commission of New South Wales, 'Report of the Conduct Division to the Governor Regarding Complaints against His Honour Magistrate Brian Maloney' (Judicial Commission of New South Wales, 2011).
[129] ibid 14.
[130] ibid 22.
[131] ibid 10, 133–4.
[132] In re Rome 218 Kan 198, 200 (1975).
[133] ibid 208.
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