Sunday, January 22, 2012

More Humour in Court


Michael Kirby (1939 - ) has been a judge of the Federal Court of Australia, the New South Wales Court of Appeal and, between 1996 and 2009, a judge of the High Court of Australia.  His judicial stance was often at odds with the majority of the High Court, he has often adopted an activist judicial role and has been a spokesperson for gay equality. 

The following extracts are from two of Justice Kirby's High Court cases:

KIRBY J: Could you explain to me what a BMX bike is? My rather cloistered life has prevented my ever getting to know what that form of bicycle is. 

MR DOUGLAS: I join with your Honour. I have had to find out. Your Honour, it is a smaller form of bike than the conventional rally bike or the sort of bike we were used to in our youth. It is a squat form of bike which in modern times in the last decade or two has been utilised for quick performance use by persons usually, as in this case, on tracks which have mounds which one speeds up towards and jumps from place to place. So it is a form of performance bike within a confined environment. 

KIRBY J: I see. 

MR DOUGLAS:  Is that a sufficient explanation for your Honour? 

KIRBY J:  I think I might have seen one, so I think I know. 

-Leyden v Caboolture Shire Council [2007] HCATrans 475.

MR GAGELER: That brings me to the little demonstration, your Honours. Your Honours ought have a bundle of material which is entitled “Demonstration of Online Betting”.

HAYNE J: How much of this is on the CD? 

MR GAGELER: This is all on the CD, your Honour. On the CD it is - - - 

KIRBY J: We had a Playstation shown to us in Sony and it was very exciting. Why did you not try that? 

MR GAGELER: This is more fun. 

KIRBY J: It is one of the most exciting things that has happened in my time here. 

-Betfair Pty Limited & Anor v State of Western Australia [2007] HCATrans 634.

Fans  of the TV series Star Trek, and of the later Star Trek movies, will be aware that:

·         such die hard fans are known as Trekkies;

·         the first officer of the Starship Enterprise is Mr Spock, the product of a mixed marriage between a mother from Earth and a father from Vulcan;

·         his mixed parentage has resulted in internal conflict between his emotional human side from his mother and the stern discipline of his Vulcan half from his father;

·        Star Trek 11: The Wrath of Khan, Spock based his decision to sacrifice himself on the principle that the good of the many outweighs the good of the one or the few. 

In 2008, Mr Justice Willett of the Texas Supreme Court, with Mr Justice Lehrmann concurring, boldly went where no man had gone before.   

In the case of Robinson v. Crown Cork and Seal Mr Justice Willett cited Mr. Spock, effectively making Spock a legal authority for interpreting the Texas Constitution. 

The case was a challenge to the constitutionality of part of House Bill 4 (2003), which retroactively eliminated all pending and future asbestos claims against Crown Cork & Seal Co, as successor to Mundet Cork Corp. The underlying claims were brought by John Robinson and his wife Barbara against Crown and others. Mr. Robinson was a 20-year U.S. Navy veteran who developed mesothelioma following asbestos exposure during his service as a boiler tender. 

Today’s case is not merely about whether chapter 149 singled out Barbara Robinson and unconstitutionally snuffed out her pending action against a lone corporation.  Distilled down, it is also a case about how Texans govern themselves. 

Delimiting the outer edge of police-power constitutionality has bedeviled Texas courts forover a century.  The broader issue of a citizen’s relationship with the State has confounded for centuries longer . . . 

The issue is elemental, but not elementary.  Fortunately, we are not entirely without guidance. 

Appropriately weighty principles guide our course. First, we recognize that police power draws from the credo that “the needs of the many outweigh the needs of the few.” Second, while this maxim rings utilitarian and Dickensian (not to mention Vulcan [21]), it is cabined by something contrarian and Texan: distrust of intrusive government and a belief that police power is justified only by urgency, not expediency.

 The footnote reads as follows:

See STAR TREK II: THE WRATH OF KHAN (Paramount Pictures 1982). The film references several works of classic literature, none more prominently than A Tale of Two Cities. Spock gives Admiral Kirk an antique copy as a birthday present, and the film itself is bookended with the book’s opening and closing passages. Most memorable, of course, is Spock’s famous line from his moment of sacrifice: “Don’t grieve, Admiral. It is logical. The needs of the many outweigh . . .” to which Kirk replies, “the needs of the few.”

— Robinson v. Crown Cork & Seal Co., 54 Tex. Sup. J. 71, 99 n.21 (Tex. 2010).

(We can debate the merits of the Spock quotation for hours:  Does the principle result in mob rule?  Do the rights of the individual need protection?  Was the Spock principle used by the Nazis and even by governments after 9/11 to justify the removal of civil rights?  One wonders whether Mr Justice Willett was aware that in Star Trek 111: The Search for Spock, where Admiral Kirk and the crew of the Enterprise seek to recover Spock’s body, Kirk justifies his actions by stating  “. . .  sometimes the needs of the one... outweigh the needs of the many.”) 

Live long and prosper.

1 comment:

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