Language – Jejune

The Macquarie Dictionary defines ‘jejune’ as ‘unsatisfying to the mind; dull; boring’. The Oxford Compact Dictionary defines it as ‘naïve and simplistic’ or (of writings) as ‘dull’. Its Latin root is ‘jejunus’ meaning ‘fasting, barren’.

Judicial use seems to fasten more on the ‘unsatisfying to the mind’ or ‘naïve and simplistic’ meanings.

As an example of the former, it has been used to describe deficiencies in evidence. For example, in an interesting decision concerning judicial advice to the trustees as to the sale of the estate of the late reggae legend Bob Marley, the Privy Council in Marley v Mutual Security Merchant Bank and Trust Co Ltd [1991] 3 All ER 198, considered the appropriate expert evidence as the market for musical rights, and said (at 206 per Lord Oliver of Aylmerton) (emphasis added):

Mr Strauss’ view, which was never contradicted, was that the normal means of offering musical rights for sale was by advertising in two named magazines circulating in the United States and the United Kingdom as well as by informing legal and accounting firms representing clients in the music business and making direct contact with record companies or publishers. It was never contended by the respondent that any public offer of the rights was ever made and the evidence of exploitation of the market is jejune in the extreme, consisting as it does of two general unparticularised statements.

Australian courts have also occasionally used it, for example:

R v Abdirahman-Khalif (2020) 271 CLR 265 at [76]-[77] (Bell, Keane, Nettle and Gordon JJ) (emphasis added, citations omitted):

The trial judge’s remark that he assumed that a submission made by defence counsel was put “with all seriousness” was as follows:

“[W]ithout going into the detail at all at this stage, I just draw your attention to a contrast, as it were, between the defence and the prosecution and you always have to look at both sides of the coin.

So yesterday in the context of the Mombasa matter … and the question of the [respondent’s] knowledge of it beforehand, [defence counsel] said this to you … : ‘if [the respondent] knew about it, members of the jury, if she’s in some kind of conspiracy with these girls [the Baaqiya sisters], you may well ask why did she not go to Kenya? Why go to Istanbul? When she knows all of this is going to be happening, she would be off to Kenya to be with her mates to blow up the police station and become a green bird.’ That was put with all seriousness, I assume, by [defence counsel], this is a serious case.”

(emphasis added)

That was exceptionable. The tone of the remark was snide, and, as this Court has indicated more than once in recent times, it is not the proper function of trial judges to pass comments, particularly snide comments, regarding the quality of counsel’s arguments. That said, however, the argument as put by defence counsel was evidently so jejune that it cannot reasonably be supposed that the trial judge’s remark might have led the jury to a different perception of the argument, or of the defence case more generally, than they would have arrived at in any event. Despite the impropriety of the remark, it was in effect no more than an unfortunate observation in the course of a detailed summing up, and, therefore, not productive of a miscarriage of justice.

Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450 at [22] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ) (emphasis added, citations omitted):

The material put before the primary judge by the Commissioner included information as to the revenue and assets of the CFMMEU. This material showed that the CFMMEU was well-resourced, having more than sufficient means to pay any penalty that the court might have been disposed to impose. The material also showed that it had a troubling history of contraventions of the Act, including s 349(1).

In this latter regard, the primary judge noted that the CFMMEU, since around the year 2000, had contravened civil remedy provisions of the Act or its predecessor on approximately 150 occasions, and s 349(1) on at least seven occasions. The primary judge observed that the CFMMEU was, notoriously, a “serial offender” in that it had historically acted in disregard of the law and appeared to treat the imposition of pecuniary penalties in respect of those contraventions as “little more than the cost of its preferred business model”. The primary judge found that the CFMMEU “favours a policy of ‘no ticket, no start’ and holds that philosophy … as preferable to the law of the land” and that “the misconduct in this case is but the latest example of the Union’s strategy ‘ … to engage in whatever action, and make whatever threats, it wishes, without regard to the law … ’”.

On appeal to the Full Court, the CFMMEU did not dispute, and the Full Court did not disturb, these findings. In this Court, the CFMMEU did seek to cavil with these findings, but identified no basis on which this Court might properly ignore them. It was also argued for the CFMMEU that the gravamen of the contraventions of s 349(1) of concern here was not the furtherance of the CFMMEU’s “no ticket, no start” policy but rather misrepresentations about the existence and effect of such a policy. But the point is that the misrepresentations were made with the evident intention of ensuring the de facto implementation of the CFMMEU’s “no ticket, no start” policy on site. It is distinctly jejune to suggest that the contraventions were not in furtherance of the CFMMEU’s policy.

Griffith University v Tang (2005) 221 CLR 99 at [58] (Gummow, Callinan and Heydon JJ) quoting Sedley LJ in Clark [2000] 1 WLR 1988 at 1992 (emphasis added, citations omitted):

Had reliance been placed upon contract, then the occasion may have arisen to consider the apparent exclusion from justiciability of issues of academic judgment, including issues of competence of students, by the English Court of Appeal in Clark v University of Lincolnshire and Humberside. The basis upon which the lack of justiciability was put in Clark appears not to depend upon the absence of contractual relations for want of animus contrahendi; rather, the basis appears to be that any adjudication would be, as Sedley LJ put it, ” jejune and inappropriate“.

Transport Workers’ Union of Australia v Qantas Airways Ltd (2021) 308 IR 244; [2021] FCA 873 at [19] (Lee J) (emphasis added):

In these circumstances, unlike some other cases where decisions are impugned, it is unrealistic to assume uncritically that the decision making process adopted, and the documents relating to or recording the decision, materialised spontaneously through some sort of organic process or represent a sufficiently complete record of relevant communications. Even early on, there was an awareness that any business record created may end up being subject to subsequent critical scrutiny. This is not to say it is open on the evidence to find that documents were deliberately created or drafted so as to dissemble the true position, but it would be jejune to proceed on the basis that the documents can be assumed as representing a spontaneous and complete picture. …