The Australian High Court and Social Facts: A Content Analysis Study

DOI10.22145/flr.40.3.2
Published date01 September 2012
Date01 September 2012
THE AUSTRALIAN HIGH COURT AND SOCIAL FACTS: A
CONTENT ANALYSIS STUDY
Kylie Burns*
ABSTRACT
Judicial reasons often include general statements about the nature and behaviour of
people and institutions and the nature of the world and society. These statements
might be called social facts ('SF') and are made as part of judicial development and
general application of law. The presence of SF statements in judicial reasoning in
Australian cases has been acknowledged by c ommentators and judges. However, there
has been little empirical examination of this phenomenon. This article discusses a
content analysis study of SF in negligence cases in the Australian High C ourt. This
study confirms that judges do refer to SF in their judicial reasoning and that SF p lay a
range of roles in judicial reasoning. This includes predicting social, economic and
behavioural consequences of legal rules, as part of setting a context or background to
judicial reasons, and as a tool to evaluate adjudicative facts. SF do not generally
dominate judicial reasoning. However, they appear to have a significant ro le to play in
certain complex and more important cases. While there were overall co mmonalities in
the way judges used SF, some individual differences between judges emerged. Judges
do not use SF in all case s in the same way. Judges referred to SF more in high
significance cases, and cases with multiple separate judgments. Judges also referred to
SF more in single and dissenting judgments than in joint and majority judgments. Most
SF referred to by judges were not sourced or referenced in any way and reference to
empirical research was very rare. Where a source or reference for a SF was given by a
judge it was usually to a legal source. Most SF appeared to source f rom judicial
'common sense' with the potential dangers thi s brings to the accuracy and legitimacy
of judicial reasoning.
INTRODUCTION
Judicial reasons often include general statements about the nature and behaviour of
people and institutions
1
and the nature of the world and society. These statements
_____________________________________________________________________________________
* BA LLB (Hons) LLM PhD, Senior Lecturer, Griffith Law School. I thank Professor Richard
Johnstone, Professor Jeff Giddings, Professor Jane Stapleton, Professor Peter Cane,
Professor Sandra Berns, Professor Rosemary Hunter, Professor Ian Malkin, Professor
Martin Davies and Professor A J Brown for their useful comments and advice on aspects of
this study. I also thank the anonymous referees.
1
Including legal institutions and legal actors.
318 Federal Law Review Volume 40
____________________________________________________________________________________
might be called social facts ( 'SF'). SF are statements ma de as part of judicial
development and general application of law.
2
SF are not 'adjudicative facts' releva nt
only to the parties to a particular dispute.
3
Judicial reference to SF is not a recent
phenomenon in the Australian High Court. For example, in 1933 in Australian Knitting
Mills Ltd v Grant,
4
Starke J discussed Australian use of woollen undergarments and the
nature of the risks of industrial processes. 'Woollen undergarments are commonly
used, in Australia and elsewhere.'
5
'But untoward results or accidents cannot, with the
greatest of care, be wholly eliminated, in any industrial process.'
6
In 1939 in an early
nervous shock case Chester v The Council of the Municipality of Waverley,
7
Latham CJ (in
the majority who dismissed the claim), relying apparently on judicial common sense,
considered it was not 'a common experie nce of mankind that the spectacle, even of the
sudden and distressing death of a child, produces any consequence of more than a
temporary nature'.
8
Judges may also implicitly draw upon a range of unstated SF
understandings as part of their reasoning.
9
Explicit judicial SF statements are the 'tip of
the iceberg' which represents overall judicial use of SF understandings.
_____________________________________________________________________________________
2
The term 'social fact' as used in this article can be distinguished from the use of the term by
others including Mullane, and Monahan and Walker. Mullane's use of the term refers only
to a statement 'concerning human behaviour'. He argued the basis for 'social facts' may be
'revealed' by social scientific disciplines such as 'history, psychology, sociology,
anthropology, political science and related fields. ' See Graham R. Mullane, 'Evidence of
Social Science Research: Law, Practice and Options in the Family Court of Australia' (1998)
72(6) Australian Law Journal 434, 434. Monahan and Walker's use of the term refers to the
use of social scientific evidence relevant to is sues in the case at hand, rather than in judicial
law-making. See Laurens Walker and John Monahan, 'Social Facts: Scientific Methodology
as Legal Precedent' (1988) 76 California Law Review 877.
3
Kenneth Culp Davis developed an influential distinction between 'adjudicative facts' and
'legislative' facts. Where a 'court or an agency finds facts concerning the immediate
partieswho did what, where, when, how and with what motive or intentthe court or
agency is performing an adjudicative function' so that the relevant facts are 'adjudicative
facts'. Where a 'court or an agency develops law or policy, it is acting legislatively; the
courts have created the common law through judicial legislation.' The use of facts in this
context is referred to as 'legislative facts'. See Kenneth Culp Davis, 'Judicial Notice' (1955)
55(7) Columbia Law Review 945, 952. For Australian judicial discussion of the terms
'adjudicative fact' and 'legislative fact' see McHugh J in Woods v Multi-Sport Holdings Pty Ltd
(2002) 208 CLR 460, 4789 [64]; and Heydon J in Aytugrul v R (2012) 286 ALR 441, 462-4 [70]
[74]. See also Hon J D Heydon, 'Developing the Common Law' in Justin Gleeson and Ruth
Higgins (eds), Constituting Law: Legal Argument and Social Values (Federation Press, 2011)
93.
4
(1933) 50 CLR 387. The Privy Council appeal is reported at Grant v Australian Knitting Mills
Ltd (1935) 54 CLR 49.
5
Australian Knitting Mills Ltd v Grant (1933) 50 CLR 387, 409.
6
Ibid 410.
7
(1939) 62 CLR 1.
8
Ibid 10. This SF appears to be based on judicial use of 'common sense' assumptions about
the psychological effects on parents of experiencing the death of a child. This kind of
judicial assumption would not be supported today; see the High Court's decision in the
Annetts case in Tame v New South Wales (2002) 211 CLR 317.
9
Malbon refers to unarticulated 'judicial values' as the 'dark matter of judgments'. They form
a critical part of the substance of the law, yet 'they can not be seen or clearly defined'. See
2012 High Court and Social Facts 319
____________________________________________________________________________________
SF find their way into judi cial reasoning in a range of ways. SF may be the subject
of expert evidence at trial, or may be admitted into evidence via evident ial rules
dealing with documentary and other special forms of e vidence.
10
SF may be referred to
in counsel's submissions or, rarely, in the High Court SF may source from the
submissions of amicus curiae or interveners.
11
Often SF appear to source from a
judge's own knowledge or from a judge's own research (stated or unstated). It is
unclear what the legal basis is for a judge to refer to SF (whether sourced from
empirical research or otherwise) when that material has no t been proved in evidence at
trial. There is an unresolve d question as to whether the doctrine of judicial notice or its
statutory equivalent s 144 of the Evidence Acts
12
apply only to adjudicative facts or can
also apply to allow (or disallow) judicial use of SF not otherwise proved in evidence.
13
Judicial use of more controversia l SF may clearly fall outside the common law doctrine
of judicial notice and s 144, particularly given many SF a re not 'notorious' or
universally and widely accepted.
14
Justice Heydon has suggested some S F are,
however, of the 'common knowledge' kind whic h form an inherent part of the judicial
law making function and fall outside the rules of evidence.
15
The recent High Court decision of Aytugrul v R
16
appears to interpret s 144 of the
Evidence Acts to restrict judicial use of empirical research in support of SF used in the
determination of legal principles unless the material has been admitted into evidence
at trial, or the material otherwise fulfils the strict requiremen ts of s 144 and notice has
been given to the parties.
17
The High Court held that published empirical research
_____________________________________________________________________________________
Justin Malbon, 'Judicial Values' in Ian Freckleton and Hugh Selby (eds), Appealing to the
Future: Michael Kirby and His Legacy (Law Book, 2009) 579, 581.
10
For example, SF material may be introduced pursuant to evidential rules regarding official
documents and official records, or via particular sections of legislation such as the Family
Law Act 1975 (Cth). See Mullane, above n 2, 44852.
11
The role of interveners and amicus curiae in the High Court is relatively restricted, see
George Williams, 'The Amicus Curiae and Intervener in the High Court of Australia: A
Comparative Analysis' (2000) 28 Federal Law Review 365.
12
Evidence Act 1995 (Cth); Evidence Act 1995 (NSW); Evidence Act 2001 (Tas); Evidence Act 2 008
(Vic). Section 144 of the Evidence Acts provides that 'proof is not required of knowledge that
is not reasonably open to question', and is common knowledge in the relevant locality or
generally, or is 'capable of verification by reference to a document' where the authority of
the document cannot be reasonably questioned.
13
See discussion in Heydon, a bove n 3; Mullane, above n 2; Stephen Gageler , 'Fact and Law'
(20089) 11 Newcastle Law Review 1, 1829; Zoe Rathus, 'A Call for Clarity in the Use of
Social Science Research in Family Law Decision -making' (2012) 26 Australian Journal of
Family Law 81, 84 9; Bradley Selway, 'The Use of History a nd Other Facts in the Reasoning
of the High Court of Australia' (2002) 20 University of Tasmania Law Review 129, 131.
14
Hon J D Heydon, Cross Evidence (LexisNexis, 8thed, 2010) 159. See also Holland v Jones (1917)
23 CLR 149, 153. For further recent discussion of the doctrine of judicial notice see Paul
Burgess, 'The Application of the Doctrine of Judicial Notice to Online Sources' (2010) 3(1)
Queensland Law Student Review 1.
15
Aytugrul v R (2012) 286 ALR 441, 463-4 [73]. See also Selway, above n 13. This matter was
also debated by Callinan J and McHugh J in Woods v Multi-Sport Holdings Pty Ltd (2002) 208
CLR 460 with McHugh J (at 4778) arguing that SF empirical material was within the scope
of judicial notice and could be used to define the scope and validity of law and Callinan J
suggesting that the use of such material was impermissible (at 1845).
16
(2012) 286 ALR 441.
17
See above n 12.

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