Elements of judicial style

Judges with personality ... On with the motley ... Alice in Wonderland, Spike Milligan, The Goons, Lord Atkin - all channelled in judicial attempts to break free ... Getting to the crux of the matter, even though it might take forever ... Judges' Associate Ginger Snatch reports from ringside 

Isn't it bracing when judges break free from the leaden constraints of office and open a vein in public?  

Three examples show what's possible when the judicial leash is slipped and language is embraced with all its rich possibilities. 

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Judge Brian Harrison at Cairns District Court quite rightly threw a wobbly about delays affecting sentencing hearings for people in custody. 

"When it comes to people in custody I think what we should be doing, as a profession - and this includes the court staff - is working towards getting things done.

When I sit back and hear the stories I hear about transmissions [from Local to District Courts] and how long it takes to get a piece of paper from downstairs up here it never ceases to astound me."    

Milligan: reminder of life in CairnsTo engage those in attendance in as jaw dropping a manner as possible the judge delved into his grab-bag of literary analogies.  

"It reminded me of a famous line from the greatest comedy novel ever written, Puckoon, by Spike Milligan, which I just happen to have in front of me.

There was a classic scene where one of the leading characters, Dan Doonan died and left everything to himself in his will, and the solicitors, Quock, Murdle, Protts & Frigg - obviously the emphasis being on the junior partner - met, shortly before watching Popeye, one afternoon to discuss the will.  

In the middle of it all Mr Murdle said to his colleagues, 'This will take years of work to unravel' and then made the prophetic statement, 'We must make sure of that'. 

And I always think of that when I think of what it takes to get something simple done around Cairns." 

As counsel and other members of the audience were barely able to contain themselves, HH was not content to let his point rest there: 

"In fact, the book goes even further. There's a classic scene later on where after the border between Northern and Southern Ireland is moved quite mysteriously, that the IRA are trying to smuggle guns back into Ireland from the northern part, masquerading as Dan's body in a coffin, and they're stopped by an eager civil servant on the border who says, 'You can't bring that in here unless you've got a visa. And it has to be renewed for every remaining year of his life'.  

That just seems to me to be what's going on here. And, you know, when I - I just can't believe that people rot around in custody for months and months at a time while we wait to get things done here." 

Harrison: Puckoon fiendHarro was having ball and even though cases were queuing up at the door it was important that he render his own Goon-like scenario:  

"You know, if Spike wrote a script about this for the Goons, it would start something like this: 

'Quite innocently, the defendants charged with an indictable offence and a summary offence and his solicitors engage Neddie Seagoon to try to get the relevant forms done so that they can bring the summary charge up to be dealt with the indictable charge.

Neddy, briefed with that task, heads down the street where he runs into Henry and Minnie, two well-known characters from the Goons, who he talks to for the next five days, having meaningless conversations about this and that. 

In the middle of that he gets assaulted by a Batter Pudding and wakes up unconscious at Lake Tinaroo. He realises that this is a dangerous, dangerous mission and very complicated, so he decides he needs to enlist help' ..." 

I'll spare you any more excitement, because you can read it all here - The Queen v Terrence Poochemunka. 

I hope it doesn't spoil things terribly if I reveal the end of HH's story. 

By the time Neddy had got to court with the right papers the defendant had died of old age. His family turned up at the watch-house to try and claim the body, only to be told that they needed a Transmission of Body form completed by all relevant parties. 

They were last seen trying to find Neddie Seagoon to see if he could organise the documentation for them.

Judge Harrison's script ends to the rising sounds of Max Geldray's harmonica. 

Another day at the Cairns Dizzo. 

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Blow J ... it is not as simple as thatAt the opposite end of the country Justice Alan Blow delivered his judgment in a Tasmanian Full Court decision involving a planning appeal concerning a proposed development of the Australian Antarctic Division Headquarters. 

See AAD Nominees Pty Ltd v Resource Management and Planning Appeal Tribunal, Kingborough Council, Etc. 

With admiral clarity Blowers expressed his frustration with the complexities of this case: 

"The planning scheme is very complex, and exceedingly and unnecessarily difficult to comprehend or interpret. Most ordinary people would not have a chance. Most sensible people, or people with a life, would not attempt the task unless they had absolutely no choice. 

In order to determine how the scheme operates in relation to the appellant's proposed development, it is practically essential to have a law degree, decades of experience in interpreting legal documents, a talent for understanding gobbledygook and misused words, a lot of time, and a very strong capacity for perseverance... 

The proposed site of that development is in the 'Business and Civic' zone. One might think that the council would therefore have a discretion to permit the development. But it is not as simple as that... 

One might think that the [planning] scheme would say that the council would therefore either be obliged to refuse it, or else have a discretion to permit or refuse it after taking the desired future character of the precinct into account. But it is not as simple as that... 

In order to determine whether a particular development is one which the council must permit, one which the council must refuse, or one which the council has a discretion either to refuse or to permit, it is necessary to consider the applicable criteria in the clauses relevant to the proposed development.

But it is not as simple as that... 

The appellant's proposed development ... is one that the council had a discretion to permit or refuse. But it is not as simple as that." 

Helpfully, the words in the critical part of the legislation, "are expressed in jargon that does not have any literal meaning". 

It's shades of Lord Atkin in Liversedge v Anderson, where Humpty Dumpty was cited as an authority that words can mean whatever he chooses them to mean.   

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However, one of the great daddy-of-them-all, off-the-leash, judicial sprays came from Judge Sam Kent of the US District Court for the Galveston Division of Texas. 

Kent: sense of morbid curiosityIt happened in John Bradshaw v Unity Marine Corporation and Phillips Petroleum, an application for summary dismissal of an action for personal injuries sustained while the plaintiff was working aboard the MV Coronado. 

Why don't more judges take a leaf from Kent's style manual?  

"Before proceeding further, the court notes that this case involves two extremely likable lawyers, who have together delivered some of the most amateurish pleadings ever to cross the hallowed causeway into Galveston, an effort which leads the court to surmise but one plausible explanation.

Both attorneys have obviously entered into a secret pact - complete with hats, handshakes and cryptic words - to draft their pleadings entirely in crayon on the back sides of gravy-stained paper place mats, in the hope that the court would be so charmed by their child-like efforts that their utter dearth of legal authorities in their briefing would go unnoticed. Whatever actually occurred, the court is now faced with the daunting task of deciphering their submissions... 

Defendant begins the descent into Alice's Wonderland by submitting a motion that relies upon only one legal authority. The motion cites a Fifth Circuit case which stands for the whopping proposition that a federal court sitting in Texas applies the Texas statutes of limitations to certain state and federal law claims... 

Defendant does not even provide a cite to its desired Texas limitation statute. A more bumbling approach is difficult to conceive - but wait folks. There's More!" 

Indeed there was. 

"Plaintiff responds to this deft, yet minimalist analytical wizardry with an equally gossamer wisp of an argument, although plaintiff does at least cite the federal limitations provision applicable to maritime tort claims... 

Plaintiff's citation, however, points to a nonexistent volume '1886' of the Federal Reporter Third Edition ... 

The court cannot even begin to comprehend why this case was selected for reference. It is almost as if plaintiff's counsel chose the opinion by throwing long range darts at the Federal Reporter (remarkably enough hitting a nonexistent volume!)." 

[snip] 

"After this remarkably long walk on a short legal pier, having received no useful guidance whatever from either party, the court has endeavored, primarily based upon its affection for both counsel, but also out of its own sense of morbid curiosity, to resolve what it perceived to be the legal issue presented." 

The defendants' motion for summary judgment was granted. 

See Bradshaw v Unity Marine and Phillips Petroleum. 

Before any other judicial officer is minded to adopt Judge Kent's robust style, bear in mind that HH was later sentenced to 33 months of porridge for lying to investigators about his sexual abuse of two female employees.