Humour can manifest itself in a variety of ways. It may be oral, written, or visual. It may be cerebral or visceral; subtle or heavy-handed; gentle or harsh; ironic, sardonic, whimsical, or satirical. It may be based on puns or word play, or on incongruous juxtaposition, or on the shock of the unexpected. Or it may be black—as in the case of Starke’s legendary remark to Rich at Isaacs’ funeral in 1948: as they passed by the open grave, Starke leant over to Rich, who was 85 years old, and asked him: ‘George, are you sure it’s worth your while to go home?
Humour in the High Court may arise in the written judgments of the Justices or in the cut and thrust of argument. Deliberate attempts to be humorous in written form, embedded as they are in the detached permanence of inert prose, often die a quick death; by contrast, the spontaneous wit of the quick riposte in oral argument thrives on the immediacy and transience of the moment. Thus, one finds humour, or at least wit, more often in oral exchanges between Bench and Bar than in written judgments, and especially in applications for special leave to appeal, where argument is restricted to 20 minutes.
Mason has recalled that a Solicitor-General once concluded his argument with the words: ‘That concludes the first branch of my argument’, when Douglas Menzies—the ‘laughing cavalier’ of the Court—responded: ‘Mr Solicitor, would not “twig” be a more appropriate word?’ Mason, known for his acerbic wit, himself showed no mercy in one case when counsel conceded: ‘Your Honour has me on the ropes’, to which Mason responded: ‘On the canvas would be a more accurate expression.’ When in Livingstone v Willox (1997) the applicant asked: ‘May I just point very briefly, your Honour, to the problem of voodoo?’, Brennan responded that, as if by magic, her time had unfortunately expired. And in Shields v ANZ (1998), the applicant asked a startled McHugh: ‘You are not Justice Toohey by any chance?’, to which McHugh replied: ‘He has retired. When I sit on special leave days I think sometimes I should be retired.’
Dixon possessed an acid wit. He is credited with the quip: ‘It was not until I heard Powers deliver a judgment that I fully understood the meaning of the phrase ultra vires’ (beyond powers). In a case in the 1960s, Dixon had little patience with the advocacy of Dr FC Louat QC. When counsel addressed a particular point, Louat got to his feet and said: ‘I can throw some light on that.’ Dixon remarked to the other counsel: ‘Dr Louat believes he has a lantern.’ Louat proceeded to quote the detailed facts of a quite irrelevant case, pausing as he realised his mistake. Dixon remarked, alluding to Gilbert and Sullivan’s The Mikado: ‘Detail adds verisimilitude to an otherwise bald and unconvincing narrative.’
Sometimes a humorous remark may be misunderstood or taken too seriously. In the course of hearing Lanyon Pty Ltd v Commonwealth (1974), Douglas Menzies visited the historic homestead Lanyon, near Canberra. Menzies joked to counsel: ‘This would be a great place for Gar’ (a reference to Barwick). Some say that this is the source of the widespread belief that Barwick wanted the homestead as the official residence of the Chief Justice when the Court moved to Canberra.
The humour in the High Court’s permanent legacy of written judgments is frequently unconscious, arising simply from the oddity or comical nature of the issues. This is particularly so in statutory interpretation, as in Deputy FCT v Zest Manufacturing (1949), where the issue was whether goldfish were livestock; Herbert Adams Pty Ltd v FCT (1932), where the issue was whether a sponge was a pastry or a cake; and Mathews v Foggitt Jones (1926), where the issue was whether a sausage could be a portion of a carcase.
These kinds of oddities can of course be exploited for comic effect, as in Slattery v Bishop (1919), where Gavan Duffy made fun of the lower court’s difficulty in distinguishing between a grocery shop and a butcher’s shop that sold tea and pickles; Dickenson’s Arcade v Tasmania (1974), where Barwick played up the absurdities of a ‘plain meaning’ approach to state legislation that, on its face, purported to tax each consumer for every individual instance of the actual consumption of tobacco (see Excise duties); and A v Hayden (1984), where Mason likened a security exercise at the Sheraton Hotel that went wrong to ‘a Law School moot based on an episode taken from the adventures of Maxwell Smart’.
Patent, copyright, and trade mark cases also sometimes provide the opportunity for Justices to create humorous effect by giving minute and abstract descriptions of ordinary and everyday objects, such as Dixon’s elaborate account of a ball-point pen in Martin v Scribal (1954) (see Popular culture) and Windeyer’s descriptions of the ‘Shell Oil-drop man’ in Shell v Esso Standard Oil (1963).
In recent times, Kirby is probably the most noted humorist. In Phonographic Performance Co v Federation of Commercial Television Stations (1998), he drew attention to the limits of judicial responses to new technologies by adding in a footnote: ‘Courts cannot always, in the manner of Star Trek’s Captain Jean-Luc Picard, say “Make it so!”’ His judgment in Johnson v American Home Assurance Co (1998) begins:
The ninety-first Psalm reflects the common human fear of injury to the foot. The Psalmist promises rescue from various misfortunes. The angels, we are assured, will take charge over the righteous:
They shall bear thee up in their hands, lest thou dash thy foot against a stone.
Unfortunately, angels did not intervene to protect the appellant’s foot. But he had an insurance policy. This case concerns his attempt to obtain earthly rescue from the insurer.
Humour in the High Court can occasionally be visual, even bordering on the practical joke. Barwick once wound the Court’s clock forward by one hour so that he could leave early. In the 1960s, it was common knowledge among associates that although Fullagar fell asleep within minutes of the Court resuming at 2.15 pm, he was usually awake about half an hour later. The associate who was sitting as clerk of the Court could always tell when Fullagar awoke because the judge would move his feet. But Fullagar—a ‘lovely chuckling humorist’, as Robert Menzies described him—would appear to remain asleep for another five or ten minutes and then, still not lifting his head, would ask some incisive question in an attempt to demonstrate that he had never been to sleep at all. On one occasion, Dixon proposed placing a hotel ‘Do Not Disturb’ sign in front of the sleeping judge during his nap on the Bench. According to Evatt’s biographer Peter Crockett, Evatt once told his associate, John Brennan, to sprinkle breadcrumbs between Starke’s bed sheets when Evatt and Starke were travelling on circuit. Brennan declined. Starke was himself the victim of the subversive and levelling effect of visual humour. Starke was renowned for giving counsel a hard time. In FCT v Hoffnung (1928), for example, he observed drily that the appeal had ‘been argued by the Court over nine days with some occasional assistance from the learned and experienced counsel who appeared for the parties’. But on one occasion, counsel had the last laugh. One cold May, with the Court sitting in the old building at Little Bourke Street in Melbourne, Starke kept a rug over his knees to keep himself warm. Appearing before him was Eric Miller QC, and Starke was giving him a very hard time. When Miller protested: ‘Your Honour is very rude to counsel’, Starke retorted: ‘With justification.’ Miller demanded to know: ‘Is Your Honour suggesting some constitutional justification?’, at which point Chief Justice Latham intervened: ‘The Court will adjourn for a few minutes.’ As they got up to leave, Starke tripped over his rug and fell flat on his face.
Gleeson has cautioned against the temptation for judges to indulge in humour. In 1998, he said: ‘Some judges, out of personal good nature, or out of a desire to break the tension that can develop in a courtroom, occasionally feel it appropriate to treat a captive audience to a display of wit’. When it is not appreciated, ‘the consequences can be very unfortunate. Judges and legal practitioners may underestimate the seriousness which litigants attach to legal proceedings, and they can become insensitive to the misunderstandings which might arise if the judge appears to be taking the occasion lightly’.
On the other hand, as Kirby has noted: ‘Judges are supremely individuals. Their expression is, in part, a reflection of their personalities and individual values.’ Just as humour can be effective in the ordinary communications of life, so it has a place in judicial communication. For the judge, a moment of humour can break the tension of a case or relieve the tedium of writing a judgment. For the barrister, it can help relieve monotony, stress, and frustration. The issues in litigation are serious. Too serious, perhaps, not to be occasionally taken light-heartedly.
Jessica Milner Davis
Murray Gleeson, ‘The Role of the Judge and Becoming a Judge’, National Judicial Orientation Programme, Sydney, 16 August 1998 (www.hcourt.gov.au)
Michael Kirby, ‘On the Writing of Judgments’ (1990) 64 ALJ 691
Willibald Ruch, ‘Humour Research’ (www.uni-duesseldorf.de/WWW/MathNat/Ruch/humor.html)
Jason Rutter, ‘Laughingly Referred To: An Interdisciplinary Bibliography of Published Work in the Field of Humour Studies and Research’, Salford Papers in Sociology No 21 (searchable database: http://les.man.ac.uk/cric/Jason_Rutter/HumourResearch/)