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Classic Kirby: Kirby J’s Best Court Comments

Michael Kirby

All law students love Kirby J. From BMX bikes and Paris Hilton, to ice cream and PlayStations, Michael Kirby always seems to be on form…

CALLINAN J: Mr Jackson, it seems to me that clearly the people at the party, including Ms Joslyn and Mr Berryman, went out with the intention of getting drunk.

MR JACKSON: It would be a big night, your Honour, big night.

CALLINAN J: With the intention of getting drunk and they fulfilled that intention.

MR JACKSON: Well, your Honour, young people sometimes – - -

KIRBY J: I just think “drunk” is a label and I am a little worried about – it is not necessary to put that label. It is just that they were sufficiently affected by alcohol to affect their capacity to drive.


KIRBY J: “A drunk” has all sorts of baggage with it.

HAYNE J: Perhaps “hammered” is the more modern expression, Mr Jackson, or “well and truly hammered”.

MR JACKSON: I am indebted to your Honour.

KIRBY J: I do not know any of these expressions.

McHUGH J: No, no. Justice Hayne must live a very different life to the sort of life we lead.

KIRBY J: I have never heard that word “hammered” before, never. Not before this very minute.

- Joslyn v Berryman S122/2002 [2002] HCATrans 573 (8 November 2002).


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.

- 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.


KIRBY J: Sounds like the argument at the time about the new forms of cricket.

MR GAGELER: That is right.

KIRBY J: When new international approaches came which were linked to the new technology of television everybody said this is the end of civilisation as we know it but, in fact - - -

MR GAGELER: That is a very good analogy, your Honour, my learned friend from the West says it was.

KIRBY J: In fact, it really increased the world audiences. I mean, even people in South America watch cricket now, something they never would have done.

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


MR MERKEL: So this amendment made it clear that you had to be in detention on a full-time basis. So that is in the extrinsic materials. So there was no question if someone on parole or on home detention would not be caught by the disqualification and that comes out as a result of that definition.

Can I take your Honours next to Part VIII of the Act starting at page 122 dealing with -

KIRBY J: So Paris Hilton would now be disqualified, but last week for a short time she would have been entitled to vote?

MR MERKEL: Yes, your Honour, and she would have been entitled if she were in Australia and an Australian citizen to be standing here unburdened by the five-year point at least.

KIRBY J: I just wanted you to know that I follow these things.

-Roach v Electoral Commissioner & Anor [2007] HCATrans 275 (12 June 2007).


MR MARTIN: The background is that prior to 1980 there were, amongst other brands, two substantive brands of ice-cream being marketed in the country, one under the name Peters, the other under the name Pauls.

KIRBY J: Was there a quality differential? Was Pauls not a more high class sort of ice-cream than Peters?

MR MARTIN: Different views were held by different consumers on that subject, I think, your Honour, and there is no evidence bearing directly on that.

KIRBY J: You do not have any samples for us?

MR MARTIN: No, I am afraid not, your Honour.

-Peters (WA) Ltd v Petersville Ltd and Peters Foods Australia Pty Ltd P64/2000 [2001] HCATrans 19 (14 February 2001).


GLEESON CJ: Mr Walker and Mr Griffin, I hold some shares in Woolworths Limited, which I assume is the holding company of the respondent.

McHUGH J: And so do I.

HAYNE J: As do I.

KIRBY J: I do not, but I do go to shop at Woolworths from time to time, quite happily.

MR WALKER: As long as your Honour does not strike hard bargains.

-Thompson v Woolworths (Qld) Pty Ltd [2005] HCATrans 7 (3 February 2005).

For some more law laughs, check out Working Hardly: Laughs from the Bench.

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