The case for judicial humour: When wit and jocularity find their way into the courtroom

Addressing the National Judicial Orientation Programme in 1998, then Chief Justice Gleeson explained to the assembled audience that there are four key aspects of judicial status or performance – independence, impartiality, fairness and competence. One trait deliberately left off his Honour’s list was judicial humour.

While Gleeson CJ cautioned the collected judges against displays of judicial wit, this advice has not always been heeded by members of our judiciary, much to the delight of nerdy lawyers everywhere. Certain judges in particular can be relied upon to insert a smattering of puns into what might otherwise be a dry legalistic judgment or to engage in some witty courtroom repartee.

High Court transcripts are often goldmines in terms of this. In one memorable exchange in Joslyn v Berryman S122/2002 [2002] HCATrans 573 (8 November 2002), members of the bench engaged in a thorough debate over the correct use of terminology:

KIRBY J: I just think “drunk” is a label and I am a little worried about – it is not necessary to put that label. It is just that they were sufficiently affected by alcohol to affect their capacity to drive.


KIRBY J: “A drunk” has all sorts of baggage with it.

HAYNE J: Perhaps “hammered” is the more modern expression, Mr Jackson, or “well and truly hammered”.

MR JACKSON: I am indebted to your Honour.

KIRBY J: I do not know any of these expressions.

McHUGH J: No, no. Justice Hayne must live a very different life to the sort of life we lead.

In another notable instance, during debate in Roach v Electoral Commissioner & Anor [2007] HCATrans 275 (12 June 2007) over legislation aimed at disenfranchising all sentenced prisoners, Kirby J took the opportunity to display his cultural acumen:

MR MERKEL: … This was also a significant amendment because prior to this amendment there was a question about whether home detention or parole would be caught by the disqualification. So this amendment made it clear that you had to be in detention on a full-time basis. So that is in the extrinsic materials. So there was no question if someone on parole or on home detention would not be caught by the disqualification and that comes out as a result of that definition.

Can I take your Honours next to Part VIII of the Act starting at page 122 dealing with – – –

KIRBY J: So Paris Hilton [who had just been incarcerated in the USA for violating probation] would now be disqualified, but last week for a short time she would have been entitled to vote?

MR MERKEL: Yes, your Honour, and she would have been entitled if she were in Australia and an Australian citizen to be standing here unburdened by the five-year point at least.

KIRBY J: I just wanted you to know that I follow these things.

But it’s not just High Court judges having all the fun. No, no, their Federal Court counterparts also take the opportunity every now and then to show off their comedic skills. In Roadshow Films Pty Ltd v iiNet Limited (No. 3) (2010) 263 ALRR 215, for example, Cowdroy J gave the following explanation of the technical issues under consideration:

To use the rather colourful imagery that internet piracy conjures up in a highly imperfect analogy, the file being shared in the swarm is the treasure, the BitTorrent client is the ship, the .torrent file is the treasure map, The Pirate Bay provides treasure maps free of charge and the tracker is the wise old man that needs to be consulted to understand the treasure map.

One Federal Court judge who is particularly gifted in the humour department is Perram J and his recent decision in Halal Certification Authority Pty Limited v Scadilone Pty Limited [2014] FCA 614 contains some absolute gems.

In a word, the case concerned that delightful snack often enjoyed in the early hours of the morning – kebabs. More accurately, it concerned allegations of trade mark infringement and misleading and deceptive conduct in relation to false “Certificates of Halal Products” created by one of the respondents, Quality Kebabs Wholesalers Pty Ltd. The certificates bore the halal certification trade mark of the applicant (an authorised halal certifier) without a licence to do so and had been provided to and displayed in the kebab shops of certain of the other respondents. As relief for this infringing conduct, the applicant sought (in his Honour’s words) that “compensatory damages should be fixed at nothing less than $89,020 which is a lot of kebab”.

Quality Kebabs argued in its defence that the infringing certificates had been manufactured by a former employee acting alone and for whose actions it was not accountable. His Honour was clearly not taken with this explanation, noting that:

It might have been thought useful to hear from this employee why it was that he had suddenly been seized by a desire, unprompted by his employer, to start forging halal certificates for his own amusement. This line of inquiry, however, was said by Quality Kebabs to be foreclosed, all too regrettably perhaps, by the fact that the employee in question had left Australia and taken up residence in Germany.

His Honour went on, “I interpolate here that the applicant in no way accepted Quality Kebabs’ claim that the villain in the piece was the employee now safely at his ease somewhere in Germany”. His Honour also quickly dispensed with the evidence of Quality Kebabs’ managing director as to how the false certificates could have been produced and distributed without his knowledge, noting that “This is, I suppose, remotely possible. However, back in the real world, another scenario which is much more likely is that Quality Kebabs provided customers who asked it for a certificate that its meat was halal with a false certificate to that effect”.

In an admirable display of his deftness with the English language, Perram J suggested of one of the respondents who had received and displayed a false certificate “He asked for a halal certificate and that is what he believed he received. In that prelapsarian state he remained until [receiving the applicant’s letter of demand]”. For the less linguistically adroit amongst us (this author included), “prelapsarian” refers to the period before the fall of Adam and Eve.

But showing that he has not lost touch with modern Australia and its mores, his Honour followed up this highly learned comment with the observation that the infringing certificate displayed in one of the respondent’s kebab shops “would have been visible at lunchtime and in the evening when, in this judicial officer’s experience, kebab consumption might be expected to peak”.

Nuggets of witticism such as these are certainly not what you expect to find when sitting down to digest the latest determinations of our judiciary. But, luckily for us and our reading pleasure, at least some of our judges have clearly decided not to follow Gleeson CJ’s cautionary approach and have taken on board the words of Kirby J (as delivered to the graduating class of Griffith University in 2008) – “In life, never be predictable. It’s so uncool.”