Through the looking glass darkly?

After the rather serious and contentious nature of my previous post, I thought I might move to less serious material (hat tip to Dave Bath for sharing this with me).

Comparative Law Blog notes that Lewis Carroll’s books Alice in Wonderland and Through the Looking Glass are the most widely quoted children’s books in judgments. I loved those books when I was little.

The passage which is most cited in judicial statements is an interchange between Alice and Humpty Dumpty. Humpty tries to convince Alice that “un-birthdays” are better than birthdays because there is only one birthday, but 364 “un-birthdays” in a year.

‘…As I was saying, that seems to be done right—though I haven’t time to look it over thoroughly just now—and that shows that there are three hundred and sixty-four days when you might get un-birthday presents—’

‘Certainly,’ said Alice.

‘And only one for birthday presents, you know. There’s glory for you!’

‘I don’t know what you mean by “glory,”’ Alice said.

Humpty Dumpty smiled contemptuously. ‘Of course you don’t— till I tell you. I meant “there’s a nice knock-down argument for you!”’

‘But “glory” doesn’t mean “a nice knock-down argument,”’ Alice objected.

‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean—neither more nor less.’

‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’

‘The question is,’ said Humpty Dumpty, ‘which is to be master— that’s all.’

The last three sentences are cited in those cases where a party is trying to argue that it can unilaterally determine the meaning of a word which has multiple meanings. As the Comparative Law Blogger says, this is problematic because:

…the speaker gets to unilaterally determine the meaning of his words precludes all form of communication when applied to ordinary life, but leads to absolute power when applied to legal commands. It is not mere retroactivity, therefore, that is objectionable; it is the absolute power that comes with being both legislator and judge.

The problem is that someone who is supposed to follow the law does not know what the law is (until the other side tells them they have breached it). This quote was famously used by Lord Atkin in dissent in Liversedge v Anderson [1941] UKHL 1; (1942) AC 206, and has subsequently been used in Australian cases, including:

• Anteden Pty Ltd v Glen Eira City Council [2000] VSC 366 at [30];
• Klason v Australian Capital Territory [2003] ACTSC 104 at [88] (in which the delightful neologism “Humptyspeak” is also coined in para [89]);
• Opal Group Holdings (Aust) Pty Ltd v Franklins Ltd [2002] NSWCA 196 at [41];
• Re Franklin Mint Pty Ltd v Commissioner of Taxation [1993] FCA 28 at [44];
• Minister for Immigration v Yusuf [2001] HCA 30 at [112] – [113];
• Gary Ian Smoker v The Pharmacy Restructuring Authority [1994] FCA 1487 at [7];
• Re Slavko Nikac; Rifat Hassan Gogebakan and Alexander Sorenson v Minister for Immigration [1988] FCA 400 at [41]
• Austral Constructions Pty Ltd; Re Austral Construction Pty Ltd Certified Agreement 2003 PR941051 [2003] AIRC 1467 at [1]; and
• Coomera Land Development Corporation Pty Ltd v Urban Land Development Pty Ltd [2006] QDC 365 at [1].

However, Humpty is not the only Carroll character to have featured in judgments.

The Cheshire Cat has also featured in an New South Wales Supreme Court judgment, Jennings v Credit Corp Australia Pty Ltd [2000] NSWSC 210 at [40]:

 I would prefer to test the matter by analysing the nature of the defect in the Respondent’s Statement of Liquidated Claim and then determining its consequences for the status of that claim in the context of the relevant rules as applicable to a Local Court dealing with a civil claim. It is only by so doing that one can answer the question whether, in the events that happened, “an action is brought on the cause of action” within the meaning of s63(2) of the Limitation Act 1969 (NSW), so as to be protected from extinguishment as statute barred. The analysis therefore requires consideration of the status of the equitable assignee’s writ or claim. This is in circumstances where the debtor had not at any time moved to set the writ aside or stay the action, such that it might be said to be voidable but not void, as in the case of judicial review setting aside a determination for breach of rules of natural justice. In that analogous context, courts now generally favour a “relative” concept of invalidity. This allows courts to hold that a decision is “void ab initio”, as if it had never been made, but only once a competent court declares that it was so made in breach of rules of natural justice. But even after avoidance the cases confirm that such a decision has practical and even legal effect, like the smile on the cheshire cat, lingering after the cat has vanished. See Lewis Carroll: Alice’s Adventures in Wonderland Ch 6: “I’ve often seen a cat without a grin”, says Alice. “But a grin without a cat, that’s the most curious thing I’ve ever seen in all my life.”; see Aronson & Dyer “Judicial Review of Administrative Action” (LBC, 1996) at 485 and for a good example of such judicial treatment Forbes v Trotting Club (NSW) [1979] HCA 27; (1979) 143 CLR 242 at 277. The present case is stronger; there never was any setting aside nor even an application to do so on this ground before the legal estate was got in. There was simply resistance to the Plaintiff’s substitution application when made after the legal estate was acquired and after a further assignment.

There is a reference to the Walrus and the Carpenter in Re Richard Bateman and Georgina Gay Bateman v Barbara Jean Slayter [1987] FCA 58 at [18]:

Having regard to these matters, as well as to the matters I have already discussed in relation to the cash flow projections, I am satisfied that the directors had no basis for the assertion that there was no risk of loss or the prediction that all loans obtained to set up the business would be repaid within one year or, if the statement that the concept was proven be regarded as merely a matter of opinion, for the assertion of such an opinion. I am satisfied that all three of them must have known the situation. What had been “proven” was that the concept of franchising was capable of returning large sums to the franchisor. In the circumstances, to invite persons to join the company as franchisees upon the basis that they would get the benefit of a proven concept was akin to the invitation to join in a treat which the Walrus and the Carpenter extended to the oysters in Through the Looking Glass.

The Hunting of the Snark has featured in a Queensland judgment, R v Robinson [1998] QCA 50:

It is well known that lay people often wrongly conclude that because a person has repeatedly said that something has occurred, therefore it must for that reason be true. They are often inclined to the view that mere assertion, particularly if repeated, necessarily means that what is asserted is true. Lewis Carroll ‘s statement in Hunting of the Snark that “What I tell you 3 times is true”, is quite incorrect. Merely saying something does not necessarily make it so. There are several references to statements made by the complainant in ex.1 and in his oral evidence. The first was in 1994 to his 18 year old neighbour. Then there was the statement to his mother and his further reference of statements made to his mother, father, grandmother and various other persons above referred to.

The Snark also gets a guernsey in Uniquema Pty Ltd v Commissioner of State Revenue [2002] VSC 157 at [3]: ‘Goodwill can be an elusive concept and as difficult to hunt as a snark.’

The poem Jabberwocky gets a reference in Re Johnson & Johnson Australia Pty Ltd v Sterling Pharmaceuticals Pty Ltd [1991] FCA 310 at paras [8] – [9] of the judgment of Burchett J, where the nature of the word “caplet” is considered:

Not every word is a blank disc upon which any recognizable significance can only be moulded by usage; some words have a currency from the moment they are minted, bearing a perceptible, even if previously unfamiliar image. A brilliant example of sustained use of new-coined words to convey an imprecise, but yet vivid, descriptive meaning is to be found in Lewis Carroll’s Through the Looking Glass:

“‘Twas brillig, and the slithy toves
Did gyre and gimble in the wabe:
All mimsy were the borogoves,
And the mome raths outgrabe.”

“Caplets” is not only more prosaic than this; it conveys, at any rate in the context of the illustrations upon the packet and the actual articles within it, not to say the accompanying repetition in ordinary language, a plain and direct meaning. No one looking at the packet could doubt that the product was sold under the name Tylenol, that the company concerned in its sale was Johnson and Johnson, and that it had been made up in the form of the stated number of caplets. If a person, who had not seen the product before, had any doubt about the exact form of the drug which was a caplet, that doubt could not have survived the briefest examination of the packet and its contents.

Even the Queen of Hearts gets a mention in South Australia v O’Shea [1987] HCA 39 at [10]:

… It was said, on behalf of the State, that the diverse considerations which might have influenced different members of Cabinet “are not the sorts of matters on which one would expect a person to have a right to be heard simply because the right to be heard on matters like that is, with respect, a somewhat empty right”. To echo the rhetoric of Lord Atkin in Liversidge v Anderson (at p 245), I know of only one authority which supports such an approach to the right to be heard in relation to matters founding an effective decision that indefinite incarceration should be imposed or continued otherwise than as punishment for a specific proven offence. “‘No, no,’ said the Queen. ‘Sentence first – verdict afterwards'” (Alice in Wonderland, ch.xii). I reject that approach. 

I wonder what Carroll would have thought if he had know his works would have been so popular with judges? Probably it’s best that some quotes aren’t used, I think I’d get worried if a judge started quoting the Queen’s shout: Off with her head!