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Where am I now? Lawlink > Supreme Court > Speeches > Words, Words, Words - Address By The Honourable J J Spigelman AC Chief Justice Of New South Wales To The Conference Celebrating 80 Years Of The Australian Law Journal
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Words, Words, Words - Address By The Honourable J J Spigelman AC Chief Justice Of New South Wales To The Conference Celebrating 80 Years Of The Australian Law Journal
WORDS, WORDS, WORDS
ADDRESS BY THE HONOURABLE J J SPIGELMAN AC
CHIEF JUSTICE OF NEW SOUTH WALES
TO THE CONFERENCE CELEBRATING 80 YEARS OF THE
AUSTRALIAN LAW JOURNAL
16 MARCH 2007, SYDNEY
I join with other speakers in congratulating the Australian Law Journal on the outstanding contribution it has made to Australian law over the course of 80 years. Throughout my career the Journal has been an essential reference, indeed my most frequently used single source of detailed commentary on the law. It seems likely to remain such. I do not believe that it will be replaced by legal blogs, unless the jurisprudentially omnivorous Peter Young decides to compile one. [1]
The Journal commenced life as the only national voice of the State legal professions. It is now, and remains, the principal voice of the national legal profession.
I am acutely conscious of the fact that I have been invited to deliver the luncheon address. You have already been exposed to half a dozen learned papers by the most distinguished of speakers. Another half dozen learned papers on an equally forbidding range of subjects awaits you this afternoon. In the middle of this formidable array of intellectual stimulation I think I should confine myself to a topic more congenial to the process of physical digestion.
I want to talk about words and their significance for law. Words are the vehicle by which the law must necessarily be conveyed.
This topic featured also in another repast, quite dissimilar to today’s earnest affair: Lewis Carroll’s Mad Hatter’s Tea Party, where the following exchange occurred:
“‘Then you should say what you mean’ the March Hare went on.
‘I do’, Alice hastily replied; ‘At least, I mean what I say - - - that’s the same thing, you know.’
‘Not the same thing a bit!’ said the Hatter. ‘You might just as well say that ‘I see what I eat’ is the same thing as ‘I eat what I see!’”
Much of the law turns on whether lawyers “say what they mean.” The obverse – “to mean what they say” – is not a requirement of the adversary system.
Our adversary system was, perhaps, never more pointedly described than it was by Eliza Doolittle in My Fair Lady:
“Words! Words! Words! I’m so sick of words.
I get words all day through, first from him, then from you.
Is that all you blighters can do.”
All judges understand her exasperation.
Lawyers express their craft through words: writing letters, formulating contracts, requesting particulars, making requisitions, drafting statutes, writing opinions, delivering submissions or crafting judgments.
Lawyers are traffickers in words. Words are our basic tools of trade.
Wittgenstein perhaps put this best when he said:
“Think of words as instruments characterised by their use and then think of the use of a hammer, the use of a chisel, the use of a square, of a glue pot and of the glue.”[2]
Not only are words what we do, in large measure words constitute the occasion upon which we are called to do it. As long ago as 1773, Lord Mansfield said:
“Most of the disputes in the world arise from words.” [3]
We try to be as clear as we can. We try to anticipate the kinds of issues that may arise, to which the verbal formulae we devise may have to be stretched. As Sir James Fitzjames Stephen put it:
“It is not enough to attain to a degree of precision which a person reading in good faith can understand; it is necessary to attain, if possible, to a degree of precision which a person reading in bad faith cannot misunderstand. It is all the better if he cannot pretend to misunderstand it.” [4]
This objective is never capable of complete achievement. Hence litigation about what words mean. As Lord McMillan once put it:
“One of the chief functions of our courts is to act as an animated and authoritative dictionary.” [5]
Felicity with words is a requirement of success in any aspect of legal practice. This requirement is hard to describe. Perhaps the best definition is that of Hilaire Belloc who once said that a person can only be regarded as a master of the English language if s/he can explain how to tie a knot without resort to a diagram.
However, in English, as in French, in the words of Joseph Joubert:
“Words are like eyeglasses, they blur everything which they do not make more clear.” [6]
The ultimate source of difficulty is the very richness of our language. Lord Simon of Glaisdale, a master of statutory interpretation, President of the Simplified Spelling Society and a Scrabble tragic, [7]
once said:
“Words and phrases of the English language have an extraordinary range of meanings. This has been a rich resource in the English poetry (which makes fruitful use of the resonances, overtones and ambiguities), but it has a concomitant disadvantage in English law (which seeks unambiguous precision, with the aim that every citizen shall known, as exactly as possible, where he stands under the law).” [8]
It is this richness of our language, giving rise to the indeterminacy or inexplicitness sometimes referred as ambiguity, which is at the core of much legal practice. To some degree ambiguity in language performs the same role for the legal profession as physical illness performs for the medical profession. It is the source of much of our work, both as practitioners and as judges. Accordingly felicity and precision in expression should be regarded as the equivalent of preventative medicine.
One does not have to move too far from the dining table to relish our profession’s preoccupation with words.
In 1898 it fell to a judge of the Supreme Court of New South Wales to decide whether or not an oyster was a wild animal. Three men were caught with several bags of oysters in the then new National Park south of Sydney, contrary to notices which said that individuals could take oysters from the park, but only for their own consumption. The issue was whether or not they could be prosecuted for larceny of the oysters, being the property of the trustees of the National Park.
“This is an important matter”, Mr Justice O’Connor sternly commenced his judgment. He decided that, like fish, oysters could not be property at common law before capture. They were ferae naturae and, accordingly, could not be the subject of larceny. His Honour set aside the conviction. [9]
Cases arising under sales tax legislation have proven to be a particularly fruitful source of semantic pyrotechnics about food. So it was that the High Court in 1949 had to determine whether food for fish was exempt from sales tax, on the basis that fish answered the statutory description of “livestock”. [10]
The case is a classic example of context determining the meaning of words. On a dictionary definition “livestock” could extend far enough for the taxpayer to have succeeded. Over the strenuous resistance of the sole dissentient, Chief Justice Latham, the Court upheld the levy of sales tax.
Latham CJ was simply not impressed by the fact that most of the words in the schedule appeared to relate to “four footed livestock”, extending as they did to matters not usually associated with fish such as: “[b]ullnose punches”, “[d]ips and washes for cattle or sheep”, “[d]renching guns and syringes”, “[m]arking and branding oils”, “[s]heep and stock feeders”, “brands, ear pliers, ear tags and ear markers” and “[v]eterinary instruments”. [11]
Mr Justice Dixon, as his Honour was then somewhat redundantly known, concluded that “this context is anything but aquatic or ichthyological” – although he preferred words with Greek to those with Latin roots. He went on to conclude that the legislative context “suggests broad acres and rural pursuits”. [12]
Mr Justice Williams characterised the item in the schedule referring to “veterinary instruments” as “perhaps an unlucky one for the fish”, because:
“Veterinary surgeons would not, I should think, ordinarily include fish amongst their patients. The context of the paragraph brands, I think, the livestock intended to benefit. Fish have a natural aversion to being caught. In the present case it is desired to catch the fish in the network of exemptions, but in my opinion the attempt fails.” [13]
It was again in a taxation context that, in 1932, the High Court had to grapple with the difficult issue of whether or not a “sponge” was a “pastry”, and thereby exempt from sales tax, or a “cake” where, together with the equally unlucky “biscuit”, it would not be exempt. To the consternation of a number of High Court judges, including Justices Starke and Dixon, who initially found it difficult to believe that the word “pastry” could ever apply to “cakes” or “biscuits”, the trade manuals, trade witnesses, the catalogues and advertisements were overwhelmingly in favour of the proposition that a “sponge” fell within the area of expertise of a pastry cook. However Dixon J concluded that the trade evidence was not sufficiently overwhelming and felt compelled to call a “sponge” a “cake”.
Mr Justice Evatt, agreeing, was content to observe:
“Perhaps this is one of the few things that every schoolboy knows.” [14]
No doubt school girls were then regarded only as cooks of, rather than as consumers of, sponge cakes.
To return to the rigours of criminal jurisprudence, in 1926 the High Court found that it was not an offence under s19 of the Newcastle District Abattoir and Saleyards Act 1912, to bring into the Newcastle area some sausages made from pork and beef which had been slaughtered at the Maitland Abattoirs. Such sausages, the Court solemnly held, were not a “portion of a carcase”. [15]
Mr Justice Isaacs, dissenting, described the proceedings as:
“A test case involving serious consequences, affecting not merely the health but even the lives of a very large portion of the population of the State of New South Wales.” [16]
He rejected as “technical” the proposed “distinction between a sausage and the component parts of a sausage”. He said:
“… If the internal portion of the sausage is itself, before envelopment portion of a carcass, I utterly fail to see how the mere fact that it is covered with an intestine makes it cease to be what it was immediately before it was covered. Its identity remains, just as much as the identity of a man remains whether he is called a soldier in uniform, a barrister in robes or a cricketer in flannels.” [17]
Mr Justice Isaacs would have none of the excuse that the relevant meat had passed all inspections in the Maitland district from whence it came. That would not justify its sale in a Newcastle shop.
Whilst, as you see, the semantic jurisprudence of the High Court is of the highest possible order, it has not grappled with the sublime issues that have come before the Supreme Court of the United States.
In 1893 it fell to that Court to determine whether a tomato was a “vegetable” or a fruit. A unanimous Supreme Court, ignoring unanimous scientific opinion that a tomato is a fruit, held:
“Botanically speaking, tomatoes are the fruit of a vine, just as are cucumbers, squashes, beans, and peas. But in the common language of the people … all these are vegetables … and which, either eaten cooked or raw, are … served at dinner in, with, or after the soup, fish or meats which constitute the principal part of the repast, and not, like fruits generally, as dessert.” [18]
Context is, in matters of interpretation, everything. As the case shows, context is not always confined to the text.
A review of authorities on what some describe as “the law of food” [19] invokes a sense of nostalgia. So it is with a judgment in 1941 of the Supreme Court of California which had to determine whether a sandwich was a “meal”. If it was, then it was subject to State sales tax.
In more recent times no one who has visited the United States and witnessed the dimensions of the typical American sandwich would doubt the answer. Nevertheless, in an unanimous judgment, the Court found that the patrons who purchased sandwiches from booths at the Golden Gate International Exhibition of 1939, did not subject the vendors to the imposition of the Californian sales tax regime.
The Court declared:
“The generally accepted concept of a meal is that it not only consists of a larger quantity of food than that which ordinarily comprises a single sandwich, but that it usually consists of a diversified selection of foods which would not be susceptible of consumption in the absence of at least some articles of tableware and which would not conveniently be consumed while one was standing or walking about. A ‘hot dog’ or hamburger sandwich is the type of food frequently offered for sale to and desired by persons who wish to eat something while walking about. It is not the type of food generally ordered by a person who patronizes a hotel, restaurant or other public eating establishment with the intention of securing a ‘meal’.” [20]
Nostalgic indeed.
The English Court of Appeal was faced with a similar issue only a few years later in 1956 but, perhaps reflecting the rapid decline in culinary standards or alternatively the poverty of the English population, the Court determined that a raw kipper was a “meal”.
The prohibition in the Shops Act 1950 on Sunday trading, exempted the serving of “meals or refreshments”, unless they happened to be fish and chips. Why that staple was impermissible on a Sunday does not appear. Although stating that the Act was plainly “unworkable” and noting that both a former Lord Chancellor and a former Lord Chief Justice had admitted that they couldn’t understand it, the Court was influenced by the fact that “This is an Act which small shopkeepers are supposed to understand”. [21]
Lord Goddard was moved to an eloquent exposition of the facts:
“Why cannot a kipper be a meal or refreshment? For the life of me I cannot see why, except that some people do not eat raw kippers; but some people do. A kipper is partly cooked, or at any rate it is smoked, and think of the absurdity when one can sell smoked salmon… smoked trout, smoked eel… Yet it is said that one cannot sell a smoked herring namely, a kipper. In my opinion, it is impossible to say that a kipper cannot be a meal... A person comes home unexpectedly and sends out for a meal, and is brought back a kipper, and what better meal can one have if one likes kippers, and most people do.” [22]
So there you have it, the typical Englishman, unlike the American who eats when s/he walks, “sends out for a meal”.
Mr Justice Cassells adopted a purposive approach and also drew on his extensive knowledge of human affairs to reach the same conclusion. He noted:
“…[T]he object of these provisions … is to provide that on a Sunday people cannot do the extensive shopping you can do on a Saturday. One may happen to find oneself in such a position that a rapid meal or refreshment may be required; an example would be, the sudden arrival home of a man who finds that his housekeeper has not prepared a meal, and she is sent out to find what she can ...” [23]
Mr Justice Donovan who, having been informed for the first time that some people eat raw kippers, simply observed that: “there really is no accounting for taste”, and accordingly, “I find it impossible to distinguish between the raw kipper and the smoked salmon or trout except on the grounds of attractiveness.” [24]
Whilst no one should understate the degree of earnestness manifest in some of these judgments, nevertheless, from time to time, one can discern an element of a tongue sticking into a cheek. There is of course ample opportunity in legal discourse, including in judgments, for the display of wit, that form of humour that illuminates the truth.
I do not wish to engage in the debate as to the permissible scope for judicial humour. It is necessary to bear in mind the warning issued to the bench by Sir William Gilbert, expressed in the libretto of The Mikado, when the Lord High Executioner set out his list of targets for execution – in much the same way as Don Giovanni listed his conquests. High on the list was “that Nisi Prius Nuisance … the Judicial Humorist”. Gilbert, no doubt, never lost the pain of his failure at the bar, having obtained no more than five briefs a year. This simply indicates that a facility for words is no guarantee of success in our profession.
There are of course significant differences in the ability of judges to deploy wit in judgments. It is always best to obey Shakespeare’s characterisation – as Polonius put it “brevity is the soul of wit”.[25] However, that does not purport to be a comprehensive description. Somerset Maugham came closer to a full characterisation when, in conscious imitation of Shakespeare, he said “impropriety is the soul of wit” [26]. Impropriety ought to be less frequently on display in a judgment than brevity, and usually is.
Nevertheless, all judges should start from the proposition that it is not absolutely essential for a judgment to be incomprehensible. Nor, on the other hand, is it mandatory to adopt the somewhat folksy writing style of Lord Denning. It is, however, always appropriate to have pride in the clarity and felicity of the expression in a judgment.
Judicial styles vary considerably. The most useful taxonomy remains that of Benjamin Cardozo when he was Chief Judge of the Court of Appeals of New York. [27] He gave us a six-fold characterisation of judicial writing styles:
1. “The type magisterial or imperative … It eschews ornament. It is meagre in illustration and analogy. If it argues, it does so with the downward rush and overwhelming conviction of the syllogism, seldom with tentative gropings towards the inductive apprehension of a truth imperfectly discerned. We hear the voice of the law speaking by its consecrated ministers with the calmness and assurance that are born of the sense of mastery and power …”
2. “The type laconic or sententious…”
3. “The type conversational or homely”.
Cardozo deals with these together:
“The Year Books are full of wise stores and homely illustrations, the epigram, the quip, the jest … Is there any armour proof against the thrust of the dictum of Lord Bowen’s: ‘the state of a man’s mind is as much a fact as the state of his digestion?’ Next door to the epigram is the homely illustration which makes its way and sinks deep by its appeal to everyday experience … “
4. “The type refined or artificial, smelling of the lamp … With its merits it has its dangers, for unless well kept in hand, it verges at times upon preciosity and euphuism. Held in due restraint, it lends itself admirably to cases where there is need of delicate precision”.
5. “The type demonstrative or persuasive … It is not unlike the magisterial or imperative, yet it differs in a certain amplitude of development, and freer use of the resources of illustration and analogy and history and precedent, in brief, a tone more suggestive of the scientific seeker for the truth and less reminiscent of the priestess on the tripod … Such a method, well pursued, has a sanity and a clarity that make it an admirable medium for the declaration of considered judgment.”
6. “The type tonsorial or agglutinative, so called from the shears and the paste pot which are its implements and emblem … I will not expatiate upon its horrors. They are known but too well. The dreary succession of quotations closes with a brief paragraph expressing a firm conviction that judgment for plaintiff or defendant, as the case may be, follows as an inevitable conclusion. The writer having delivered himself of this expression of the perfect faith, commits the product of his hand to the files of the court and the judgment of the ages with all the pride of authorship. I am happy to be able to report that this type is slowly but steadily disappearing.”
As for humour in judgments, Cardozo made the following observation:
“My summary of styles may leave a cheerless impression of the solemn and the ponderous. Flashes of humour are not unknown, yet the form of opinion which aims at humour from beginning to end is a perilous adventure, which can be justified only by success, even then is likely to find its critics almost as many as its eulogists.”
Judicial humour is a subject to be approached with trepidation. Humour is, so often, quickly obsolete. Sir Frederick Jordan gave an address on that subject at the Jubilee of the Law School of the University of Sydney. His examples now appear to be, at best, only faintly amusing [28]. Roddy Meagher’s brief excursus on Australian judicial humour has lasted somewhat better, not least because of the examples of Sir Frederick Jordan’s wit. [29]
The Australian Law Journal over its 80 years has often sparkled with wit. Indeed the very first item under the very first Current Topics in the very first volume manifested the particular twinkle of which Sir Bernard Sugerman was capable. In the very first sentence, Sir Bernard referred to W S Gilbert as possibly being attracted to an event that had recently occurred in the Supreme Court of Victoria.
A liquidator of a company had written to himself, to inform himself that he had resigned his office. However that letter had, unfathomably, not reached its destination. The liquidator had to seek judicial advice, to use Sir Bernard’s description, about “whether he had sufficiently informed himself of his own resignation or not”. [30]
Sir Bernard set out another incident about the tribulations of service. A firm of Melbourne solicitors wished to make a claim against a company for professional costs. They realised that the registered office of the company was situated at their very own offices.
Sugerman explained the consequences of this startling revelation:
“Whereupon the clerk in charge of the matter, after applying himself with a screwdriver to the affixing of the company’s nameplate to the exterior of the office, went for a walk around the block and returned to serve the summons upon the company by leaving it at the office of his own firm which had issued it.” [31]
It is not possible to recount in any detail the wonderful array of wit on display in the Australian Law Journal and the numerous manifestations of the fascination of our profession with words. Permit me simply to mention one favourite.
After his retirement as Chief Justice, the Journal published a hitherto anonymous poem by Sir Frank Gavin Duffy, which imitated a verse of Tennyson. [32] He described the swearing-in of a new judge in the following terms:
“And then me thought I sat enthroned afar,
Among my peers in scarlet ermine bound.
Remote from the base rabble of the bar,
That stood expectant around.”
He went on to describe the variety of judges that he joined on the bench. One was nostalgic, bordering on the maudlin, of his past glories at the bar:
“I drank delight of battle with my peers,
My name was once the people’s battle cry,
Alas, what is the end of hopes and fears –
Splendid obscurity!”
And then there was the judge with disappointed expectations:
“I am cut off from hope in dull despair,
A wretched puisne who should be a chief,
My father suffered so, and now I bear,
Hereditary grief.”
But there were those who remained cheerful:
“I am that happy judge who men call fair,
Take comfort then from me.
I work, I play, I let the mad world rail,
I never lose my temper or my time,
My judgment and digestion never fail,
From merry chime to chime.”
Sir Frank went on to describe the full panoply of judicial types.
There have been a number of judges in our legal history who have expressed themselves particularly well. They remain a source of delight to us all. If I had to choose a single favourite it would be the judgment of Sir George Rich in James v Cowan.[33] This was known as The Dried Fruits Case and is an appropriate note on which to leave you for what would, in the normal course, have been dessert, of which I am informed there is none.
The passage is too long to quote in full. Once, I managed to sneak it into a judgment and do not apologise for doing so, although it may not be obvious why reasoning on s92 of the Constitution was applicable to the implied freedom of political discourse. [34]
To give you a taste, his Honour said:
“The rhetorical affirmation of sec. 92, that trade, commerce and intercourse between the States shall be absolutely free has a terseness and elevation of style which doubtless befits the expression of a sentiment so inspiring. But inspiring sentiments are often vague and grandiloquence is sometimes obscure”. [35]
He went on:
“As soon as the section was brought down from the lofty clouds whence constitutional precepts are fulminated and came to be applied to the everyday practice of trade and commerce and the sordid intercourse of human affairs, the necessity of knowing and so determining precisely what impediments and hindrances were no longer to obstruct inter-State trade obliged this court to attempt the impossible task of supplying an exclusive and inclusive definition of a conception to be discovered only in the silences of the Constitution”. [36]
Rich was rarely stirred to depart at such length from his usual consummate indolence. It is a pity. We have lost the benefit of his prose which, on all accounts, would have entertained generations of lawyers.
That he felt the necessity to actually write at length was the product of his own long struggle with the words of s92. Economy, indeed terseness, of expression is not always a source of certainty. In 1916 Rich expressed one view of s92, in a judgment which he said was wrong six months later, only to affirm, with a new majority, four years later that he had been right the first time. [37]
By the time of the Dried Fruits Case, to steal a phrase from David Mamet, his semantic chickens had come home to roost.[38] It can happen to any of us.
So I leave you to your just desserts, which on this occasion is six more speeches which, no doubt, will be sweet enough.
END NOTES
1. Tung Yin “The Blogosphere and the Law” (2006) 11 Nexus 79.
2. Ludwig Wittgenstein “The Blue Book in The Blue and Brown Books, Harper and Row, New York (1958) at 67.
3. Morgan v Jones (1773) Lofft 176; 98 ER 587 at 596 referring to John Locke’s Essay on Human Understanding particularly Chs 9, 10 and 11.
4. Re Castioni (1891) 1QB149 at 167-168 per Stephen J.
5. Quoted by Lord McMillan in Law and Other Things, Cambridge Uni P, Cambridge (1937) at 163.
6. Joseph Joubert Pensées (1842) Sect. 21 Part 15.
7. His love of language is manifest in his series “English Idioms from the Law” (1960) 76 LQR 283, 429; (1962) 79 LQR 245; (1965) 81 LQR 52.
8. Stock v Frank Jones (Tipton) Limited (1978) 1 WLR 231 at 236.
9. Ex parte Emmerson (1898) XV WN (NSW) 101 at 102.
10. Deputy Commissioner of Taxation (NSW) v Zest Manufacturing Company Pty Ltd (1949) 79 CLR 166.
11. Id at 173.
12. Ibid.
13. Id at 175.
14. Herbert Adams Pty Ltd v Federal Commissioner of Taxation (1932) 47 CLR 222 at 230.
15. Matthews v Foggitt Jones Ltd (1926) 37 CLR 455 at 459.
16. Id at 458.
17. Id at 459.
18. Nix v Hedden 149 US 304 (1892) at 307.
19. Barry M. Levenson Habeas Codfish: Reflections on Food and the Law University of Wisconsin Press, Madison (2001).
20. Treasure Island Catering Co Inc v State Board of Equalisation 19 Cal (2d) 181 at 186 (1941).
21. Newberry v Cohen’s (Smoked Salmon) Limited (1956) 54 LGR 343 at 344.
22. Id at 345.
23. Id at 347.
24. Newberry v Cohen’s (Smoked Salmon) Limited (1956) 54 LGR 343 at 347.
25. Hamlet II.ii. 91.
26. W Somerset Maugham The Moon and Sixpence, Penguin Classics (1993) at 17.
27. Benjamin N Cardozo Law and Literature and other Essays Harcourt, New York (1931) at 10-32.
28. Sir Frederick Jordan “An Article on a Legal Topic” in Sir Thomas Bavin (ed) The Jubilee Book of the Law School of the University of Sydney 1890-1940 Sydney (1940) at 49ff.
29. R P Meagher ”Australian Judicial Humour” (1990) Blackacre at 77-79.
30. 1 ALJ 1.
31. See 1 ALJ 2.
32. “A Dream of Fair Judges” (1945) 19 ALJ 43.
33. James v Cowan (1930) 43 CLR 386 at 422ff.
34. John Fairfax Publications Pty Ltd v Attorney General (NSW) [2000] NSWCA 198, 18 ALR 94; 158 FLR 81 at [77].
35. James v Cowan supra at 422.
36. Id at 422-423.
37. See Foggitt, James & Co Ltd v NSW (1916) 21 CLR 357 at 365; Duncan v Queensland (1916) 22 CLR 556 638-639; W & A McArthur Ltd v Queensland (1920) 28 CLR 530 at 569-570.
38. David Mamet “Semantic Chickens” in his Writing in Restaurants, Penguin, New York (1987).
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