_Banter_from_the_Bench_The_use_of_humour_in

JOBNAME: No Job Name PAGE: 88 SESS: 1 OUTPUT: Tue Apr 19 16:06:15 2016
/journals/journal/abr/vol42pt1/part_1
Banter from the Bench: The use of humour
in the exercise of judicial functions
Jack Oakley and Brian Opeskin*
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.
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
* Jack Oakley is a solicitor at Clifford Chance, Sydney and was formerly the Associate to the
Hon Justice David Yates of the Federal Court of Australia; Brian Opeskin is a Professor of
Legal Governance at Macquarie University, Sydney. 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.
82

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 practitioners3 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
1 E B White, The Second Street from the Corner, Harper & Row, 1965, p 165.
2 See, eg, S Roach Anleu, K Mack and J Tutton, ‘Judicial Humour in the Australian
Courtroom’ (2014) 38 MULR 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 I Taylor and K Williams, ‘Twenty-five Years of Bar
News’ (2010–11) (Summer) Bar News 32 at 37.
4 K Mason, Lawyers Then and Now: An Australian Legal Miscellany, Federation Press, 2012;
K Mason, Old Law, New Law: A Second Australian Legal Miscellany, Federation Press,
2014.
Banter from the Bench 83

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.
Second, 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. Third, 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 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.
The status quo
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
5 L Hori, ‘Bons Mots, Buffoonery, and the Bench: The Role of Humor in Judicial Opinions’
(2012) 60 UCLA Law Review Disclosure 16 at 22–30.
84 (2016) 42 Australian Bar Review

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 9 months gaol for a drug offence. After the
defendant indicated her intention to appeal, the magistrate said to her solicitor
in open court:
6 See, eg, J Balcombe, Pleasurable Kingdom: Animals and the Nature of Feeling Good,
Macmillan, 2006.
7 J Bering, ‘The Rat That Laughed’ (2012) 307(1) Scientific American 74 at 77.
8 G Seal, ‘Folk Humour’ in The Oxford Companion to Australian Folklore, G B Davey and
G Seal (Eds), Oxford University Press, 1993, p 213.
9 C 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, pp 111–14 (Senator
Ellison).
11 Philip Ruddock, ‘Protecting Your Right to Mock’, Daily Telegraph (online), 30 November
2006.

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 NSW case, a magistrate proposed to issue an apprehended violence
order to a man, which required that he not come within 400 m 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 WA 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?
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
12 P Young, ‘Current Issues’ (2014) 88 ALJ 447 at 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; BC201500874 at [45] per Sanderson M.
15 Anchorage Capital Partners Pty Limited v ACPA Pty Ltd (2015) 115 IPR 67; [2015] FCA
882; BC201508171 at [51] per Perram J.
16 Productivity Commission, ‘Report on Government Services 2015’, (2015) Ch 7 Attachment
tables.

and reticence — judicial humour is seen as ‘risky’.17 This rectitude is typified
by an address given by a 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
17 Roach Anleu, Mack and Tutton, above n 2, at 660.
18 Murray Gleeson, ‘The Role of the Judge and Becoming a Judge’, Paper presented at the
National Judicial Orientation Programme, Sydney, 16 August 1998.
19 Green v Green (1989) 17 NSWLR 343 at 346 per Gleeson CJ; (1989) 13 Fam LR 336;
(1989) DFC 95-075.
20 M Pelly, Murray Gleeson: The Smiler, Federation Press, 2014, pp 162–3.
21 Ibid, p 163.
22 Sir Anthony Mason, ‘Judicial Independence and the Separation of Powers: Some Problems
Old and New’ (1990) 24 UBCLR 345 at 352–4.

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 5536 words
appeared intentionally humorous — less than one-tenth of 1%. 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,
23 Roach Anleu, Mack and Tutton, above n 2, at 639.
24 Judicial decisions and transcripts are reported on the High Court’s website: at
<www.hcourt.gov.au/> (accessed 18 April 2016).
25 J Pearlman, ‘Jesters Who Brought Humour to Top Court’, Sydney Morning Herald (online),
3 September 2007, at <www.smh.com.au/news/national/jesters-who-brought-humour-to-
top-court/2007/09/02/1188671797001.html> (accessed 18 April 2016); M Pelly, ‘High
Court’s Resident Jester Hayne Missing in Action’, The Australian (online), 18 March 2011,
at <www.theaustralian.com.au/business/legal-affairs/high-courts-resident-jester-hayne-
missing-in-action/story-e6frg97x-1226023543927> (accessed 18 April 2016).
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.
29 See, eg, Monis v R (2013) 249 CLR 92; 295 ALR 259; [2013] HCA 4; BC201300755 at

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
[240] per Heydon J; Gales Holdings Pty Ltd v Tweed Shire Council (2013) 85 NSWLR 514;
(2013) 197 LGERA 381; [2013] NSWCA 382; BC201314849 at [2] and [138] per
Emmett JA.
30 Baigent v Random House Group Ltd [2006] EWHC 719; (2006) 69 IPR 143; D Tench, ‘How
Judge’s Secret Da Vinci Code Was Cracked’, The Guardian (online), 28 April 2006, at
<www.theguardian.com/uk/2006/apr/28/books.danbrown> (accessed 18 April 2016).
31 Tench, above n 30.
32 United States v Syufy Enterprises 903 F 2d 659 (9th Cir, 1990).
33 Note, ‘The Syufy Rosetta Stone’ [1992] BYU L Rev 457.
34 Braham v Sony/ATV Music Publishing (D Cal, No 2:15-cv-8422-MWF (GJSx),
10 November 2015). The authors will spare readers from unnecessary exposure to Ms
Swift’s musical oeuvre by refraining from expounding the magistrate’s references. Those of
a different harmonic disposition can refer to the lyrics of ‘Bad Blood’, ‘Blank Space’,
‘Shake It Off’, and ‘We Are Never Ever Getting Back Together’.

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
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.
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:
although . . . 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 ‘In support of judicial humour’ below.
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.
35 T Lucretius Carus, On the Nature of Things (trans Cyril Bailey), Clarendon Press, 1910,
p 164 (Book IV, line 637): ‘what to some is noisome and bitter, can yet seem to others most
sweet to eat’.
36 H Normanton, ‘American Courts’ (1925) 14(3) Women Lawyers’ Journal 9 at 10.
37 Gui v Weston (2013) 65 MVR 542; [2013] VSCA 364; BC201315662.
38 Ibid, at [54] per 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 at 259 per Lord Hewart; [1923]
All ER Rep 233. See also J J Spigelman, ‘Seen to Be Done: The Principle of Open Justice
— Part I’ (2000) 74 ALJ 290; J J Spigelman, ‘Seen to Be Done: The Principle of Open
Justice — Part II’ (2000) 74 ALJ 378.

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 ‘Judicial
misconduct’ below). 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 ‘In support of judicial humour’ 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.
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 courtrooms and the personalities of the small population of
judges who inhabit them.
One of their primary tasks as advocates — subject to their overarching duty
41 D Wood, ‘Judicial Ethics: A Discussion Paper’, Australian Institute of Judicial
Administration, 1996, p 15.
42 Woolworths Ltd v Howarth [2015] NSWSC 1624; BC201510936.
43 Day v Harness Racing New South Wales [2014] NSWSC 1024; BC201406074.
44 K Mason, ‘Judicial Humour’, paper presented at the Law Graduation Address, Sydney
University, Sydney, 20 May 2005.
45 See, eg, Judiciary Act 1903 (Cth) s 55, with respect to federal courts and state courts
exercising federal jurisdiction.

to the court and the administration of justice46 — 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
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 ‘Judicial reticence’ above).
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
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.
47 Giannarelli v Wraith (1988) 165 CLR 543; 81 ALR 417; [1988] HCA 52; BC8802647;
D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; 214 ALR 92; [2005] HCA 12;
BC200500919. At the time of publication, the High Court was reserved on a decision that
may reconsider this principle: Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA Trans
48.
48 W S Gilbert and Arthur Sullivan, The Mikado (1885) Act I, ‘As Some Day It May Happen’.

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
‘Humour promotes open justice’ below.
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.
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
49 J Kleefeld, ‘Rhyme and Reason (Sub Nom The Dreadfulest Thing of All)’ (2004) 62(3) The
Advocate 351 at 359.
50 W Prosser (Ed), The Judicial Humorist: A Collection of Judicial Opinions and Other
Frivolities, Little, Brown, 1952, p vii.
51 The Highest Court, Directed by Daryl Dellora, Film Art Doco, 1998.

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
52 Wik Peoples v Queensland (1996) 187 CLR 1; 141 ALR 129; [1996] HCA 40; BC9606282.
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.
54 M Kirby, ‘On the Writing of Judgments’ (1990) 64 ALJ 691 at 699.
55 J Thomas, Judicial Ethics in Australia, 3rd ed, LexisNexis Butterworths, 2009, p 134.
56 See, eg, A 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, at
<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> (accessed
18 April 2016).

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.
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
57 A Jordan, ‘Imagery, Humor, and the Judicial Opinion’ (1987) 41 Uni of Miami L Rev 693
at 697.
58 B Cardozo, Law and Literature and Other Essays and Addresses, Harcourt, Brace and
Company, 1931, p 29.
59 D Neuberger, ‘Open Justice Unbound?’, paper presented at the Judicial Studies Board
Annual Lecture, 16 March 2011.
60 Jordan, above n 57, at 727.
61 M Duckworth, ‘Clarity and the Rule of Law: The Role of Plain Judicial Language’ in A
Matter of Judgment: Judicial Decision-Making and Judgment Writing, R Sheard (Ed),
Judicial Commission of New South Wales, 2003, p 91; J Doyle, ‘Judgment Writing: Are
There Needs for Change?’ (1999) 73 ALJ 737.
62 C Bond, ‘Legal Aid Cuts a Worrying Sign from the Abbott Team’, The Age (online),
19 September 2013, at <www.theage.com.au/comment/legal-aid-cuts-a-worrying-sign-from-
the-abbott-team-20130918-2tzkj.html> (accessed 18 April 2016).
63 L Ray, ‘Laughter at the Court: The Supreme Court as a Source of Humor’ (2006) 79
Southern California L Rev 1397.
64 P Goodrich, ‘The Importance of Being Ernest: Satire and the Criticism of Law’ (2005) 15(1)
Social Semiotics 43 at 56–7.
65 K Bridwell, ‘The Powdered Wig Conspiracy: A Brief Expose´ of Legal Wit and Humor’
(1977) 52 Los Angeles Bar Jnl 614 at 615.

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.
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
66 J Raz, The Authority of Law: Essays on Law and Morality, 2nd ed, Oxford University Press,
2009, p 214.
67 B Tamanaha, On the Rule of Law: History, Politics, Theory, Cambridge University Press,
2004, pp 91–101.
68 Merkur Island Shipping Corporation v Laughton [1983] 2 AC 570 at 594–5, 612; [1983] 2
All ER 189; [1983] 2 WLR 778.
69 S Rushing, ‘Is Judicial Humor Judicious’ (1990) 1 Scribes J Leg Writing 125 at 128.
70 S Roach Anleu and K Mack, ‘Judicial Authority and Emotion Work’ (2013) 11 JR 329
at 338; Roach Anleu, Mack and Tutton, above n 2, at 642.
71 Wood, above n 41, at 15.
72 For examples of self-deprecatory humour, see Roach Anleu, Mack and Tutton, above n 2,
at 646–7.

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 twentieth 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.
73 E Kyrou, ‘Attributes of a Good Judge’ (2013) 23 Jnl of Judicial Administration 130 at 134.
74 J Milner Davis and T Simpson, ‘Humour’ in Oxford Companion to the High Court of
Australia, T Blackshield, M Coper and G Williams (Eds), Oxford University Press, 2001,
pp 328–9.
75 Ibid, p 329.
76 E Campbell, ‘Reasons for Judgment: Some Consumer Perspectives’ (2003) 77 ALJ 62 at 63,
68.
77 M Groves and R Smyth, ‘A Century of Judicial Style: Changing Patterns in Judgment
Writing on the High Court 1903-2001’ (2004) 32 Fed L Rev 255 at 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, pp 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) 196 CLR 161; 158 ALR
1; [1998] HCA 65; BC9805441 at [184].

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
3 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 US 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
81 Milner Davis and Simpson, above n 74, at 328.
82 G Fricke, ‘Hayden Erskine Starke’ in Oxford Companion to the High Court of Australia,
T Blackshield, M Coper and G Williams (Eds), Oxford University Press, 2001, pp 637–8.
83 Federal Commissioner of Taxation v Hoffnung & Co Ltd (1928) 42 CLR 39 at 62 per
Starke J.
84 United States ex rel Mayo v Satan 54 FRD 282 (1971).
85 Ibid.
86 P Grabosky, ‘Regulation by Ridicule: Humorous Denigration as a Regulatory Instrument’
(2013) online Law, Culture and the Humanities DOI: 10.1177/1743872113493079, p 28.

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
87 Fisher v Lowe 333 NW 2d 67 (Mich Ct App, 1983).
88 Ibid.
89 G Smith, ‘A Critique of Judicial Humor’ (1990) 43(1) Arkansas L Rev 1 at 12.
90 P Hobbs, ‘Judges’ Use of Humor as a Social Corrective’ (2007) 39 Jnl of Pragmatics 50
at 56–7.
91 Mattel Inc v MCA Records Inc 296 F 3d 894 (9th Cir, 2002).

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.
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.
Judicial ethics
Roderick (‘Roddy’) Meagher was a judge of the NSW 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 matter
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
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> (accessed 18 April 2016).
93 Mattel Inc v MCA Records Inc 296 F 3d 894 (9th Cir, 2002) at 908.
94 Mattel Inc v Walking Mountain Productions 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; BC200303538 (2 July
2003) at [7] per Meagher JA.
97 Mason, above n 4, Lawyers Then and Now, p 26.
98 JPQS Pty Ltd v Cosmarnan Construction Pty Ltd [2003] NSWCA 66; BC200303538 at [32]
per Beazley JA.
99 D Freeman, Roddy’s Folly: RP Meagher QC — Art Lover and Lawyer, Connor Court
Publishing, 2012, p 156.

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
100 JPQS Pty Ltd v Cosmarnan Construction Pty Ltd [2003] NSWCA 66; BC200303538 at
[1]–[2] per Mason P.
101 Mason, above n 4, Lawyers Then and Now, p 26.
102 Videski v Australian Iron and Steel Pty Ltd (unreported, NSW CA, Kirby P, Meagher and
Cripps JJA, 17 June 1993).
103 Ibid, at 8. The tensions between the two continued beyond the grave: M Kirby, ‘R P
Meagher and I: The Best of Times. The Worst of Times’ (2011) 35 Aust Bar Rev 26.
104 Freeman, above n 99, pp 305–6.
105 K Hickie, ‘Judges at War Over “Xenophobic Rodomontade”’, Sydney Morning Herald
(Sydney), 18 June 1993, p 1; B Turner, ‘Judges Trade Insults’, Australian Financial Review
(Sydney), 18 June 1993, p 4.
106 G Lebovits, A Curtin and L Solomon, ‘Ethical Judicial Opinion Writing’ (2008) 21
Georgetown Jnl of Legal Ethics 237 at 272.

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 US 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.
107 Council of Chief Justices of Australia, Guide to Judicial Conduct, 2nd ed, Australasian
Institute of Judicial Administration, 2007, p 17. See also Thomas, above n 55, at 28.
108 Judiciary of England and Wales, ‘Guide to Judicial Conduct’, Judiciary of England and
Wales, 2013, at <https://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/
Guidance/judicial_conduct_2013.pdf> (accessed 18 April 2016); 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, at <www.uscourts
.gov/uscourts/RulesAndPolicies/conduct/Vol02A-Ch02.pdf> (accessed 18 April 2016).
109 M Rudolph, ‘Judicial Humor: A Laughing Matter?’ (1989) 41 Hastings LJ 175 at 194–5.
110 Ibid, at 195.
111 Webb v R (1994) 181 CLR 41 at 74 per Deane J; 122 ALR 41; [1994] HCA 30; BC9404635.
112 Ebner v Offıcial Trustee in Bankruptcy (2000) 205 CLR 337; 176 ALR 644; [2000] HCA 63;
BC200007446 at [6], [83]. For an application in relation to a royal commissioner, see
D Heydon, ‘Reasons for Ruling on Disqualification Applications’, Royal Commission into
Trade Union Governance and Corruption, 31 August 2015.

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 offence120 — 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
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, p 2.
115 B Opeskin, ‘Models of Judicial Tenure: Reconsidering Life Limits, Age Limits and Term
Limits for Judges’ (2015) 35 Oxford Jnl of Legal Studies 627.
116 Thomas, above n 55, at 15–20.
117 Commonwealth, Parliamentary Debates, House of Representatives, 31 May 2010,
pp 4709–10 (Duncan Kerr).
118 A Lynch, ‘Judicial Complaints and Suspension’ (2012) 23 Public L Rev 81 at 81.
119 Explanatory Memorandum, Judicial Misbehaviour and Incapcity (Parliamentary
Commissions) Bill 2012 (Cth), p 10.
120 G Lindell, ‘The Murphy Affair in Retrospect’ in Australian Constitutional Landmarks, H P
Lee and G Winterton (Eds), Cambridge University Press, 2003, pp 280 and 287–90.

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 seventeenth 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
121 C H McIlwain, ‘The Tenure of English Judges’ (1913) 7(2) American Political Science
Review 217 at 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
4 years, including four in 1 day.
122 Law Reform Commission of Western Australia, above n 114, p 4.
123 For reviews, see H P Lee, ‘Appointment, Discipline and Removal of Judges in Australia’ in
Judiciaries in Comparative Perspective, H P Lee (Ed), Cambridge University Press, 2011,
p 27; Law Reform Commission of Western Australia, ‘Complaints against Judiciary, Final
Report, Project 102’, Law Reform Commission of Western Australia, 2013; G Appleby and
S Le Mire, ‘Judicial Conduct: Crafting a System that Enhances Institutional Integrity’ (2014)
38 MULR 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, pp 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.

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 US 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
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, p 14.
130 Ibid, p 22.
131 Ibid, pp 10, 133–4.
132 Re Rome 218 Kan 198 (1975) at 200.

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.
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.
133 Ibid, p 208.
134 Smith, above n 89, p 26.

_Banter_from_the_Bench_The_use_of_humour_in

Recommended

Recommended

More Related Content

Viewers also liked

Viewers also liked (8)

Similar to _Banter_from_the_Bench_The_use_of_humour_in

Similar to _Banter_from_the_Bench_The_use_of_humour_in (20)

_Banter_from_the_Bench_The_use_of_humour_in