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

Published online by Cambridge University Press:  24 January 2025

Kylie Burns
Kylie Burns*
Affiliation:
Griffith Law School
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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 commentators 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 Court. This study confirms that judges do refer to SF in their judicial reasoning and that SF play 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 role to play in certain complex and more important cases. While there were overall commonalities in the way judges used SF, some individual differences between judges emerged. Judges do not use SF in all cases 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 from judicial ‘common sense’ with the potential dangers this brings to the accuracy and legitimacy of judicial reasoning.

Type
Research Article
Information
Federal Law Review , Volume 40 , Issue 3 , September 2012 , pp. 317 - 348
Copyright
Copyright © 2012 The Australian National University

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Footnotes

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.

References

1 Including legal institutions and legal actors.

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, 434Google Scholar. Monahan and Walker's use of the term refers to the use of social scientific evidence relevant to issues 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 877Google Scholar.

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 parties—who did what, where, when, how and with what motive or intent—the 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, 952Google Scholar. 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, 478–9 [64]; and Heydon J in Aytugrul v R (2012) 286 ALR 441, 462-4 [70] –[74]. See also HonJ D, Heydon, ‘Developing the Common Law’ in Justin, Gleeson and Ruth, Higgins (eds), Constituting Law: Legal Argument and Social Values (Federation Press, 2011) 93Google Scholar.

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 Justin, Malbon, ‘Judicial Values’ in Ian, Freckleton and Hugh, Selby (eds), Appealing to the Future: Michael Kirby and His Legacy (Law Book, 2009) 579, 581Google Scholar.

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, 448–52.

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 365Google Scholar.

12 Evidence Act 1995 (Cth); Evidence Act 1995 (NSW); Evidence Act 2001 (Tas); Evidence Act 2008 (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, above n 3; Mullane, above n 2; Stephen, Gageler, ‘Fact and Law’ (2008–9) 11 Newcastle Law Review 1, 18–29Google Scholar; 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, 84–9Google Scholar; Bradley, Selway, ‘The Use of History and Other Facts in the Reasoning of the High Court of Australia’ (2002) 20 University of Tasmania Law Review 129, 131Google Scholar.

14 HonJ D, Heydon, Cross Evidence (LexisNexis, 8thed, 2010) 159Google Scholar. 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 1Google Scholar.

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 477–8) 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 184–5).

16 (2012) 286 ALR 441.

17 See above n 12.

18 Aytugrul v R (2012) 286 ALR 441, 449 [21]–[22] (French CJ, Hayne, Crennan and Bell JJ).

19 See discussion in Rathus, above n 13, 85–6.

20 Ibid 89.

21 The term ‘case’ in this article refers to the reported or unreported overall judgment of a court in a particular matter.

22 Kylie, Burns, ‘The Way the World Is: Social Facts in High Court Negligence Cases’ (2004) 12 Torts Law Journal 215Google Scholar; Kylie, Burns, ‘The High Court and Social Facts: A Negligence Case Study’ in Michael, Bryan (ed), Private Law in Theory and Practice (Routledge-Cavendish, 2007) 85Google Scholar; Kylie, Burns, ‘It's Just Not Cricket: The High Court, Sport and Legislative Facts’ (2002) 10 Torts Law Journal 234Google Scholar.

23 See Mullane, above n 2.

24 See Selway, above n 13.

25 Reg, Graycar, ‘The Gender of Judgments: An Introduction’ in Margaret, Thornton (ed), Public and Private: Feminist Legal Debates (Oxford University Press, 1995) 262Google Scholar; Reg, Graycar, ‘Gender, Race, Bias and Perspective: OR, how Otherness Colours Your Judgment’ (2008) 15(1–2) International Journal of the Legal Profession 73Google Scholar; Reg, Graycar, ‘The Gender of Judgments: Some Reflections on Bias’ (1998) 32 University of British Columbia Law Review 1Google Scholar; Reg, Graycar, ‘Gendered Assumptions in Family Law Decision-Making’ (1994) 22 Federal Law Review 278Google Scholar.

26 Andrew, Serpell, The Reception and Use of Social Policy Information in the High Court of Australia (Law Book, 2006)Google Scholar; Andrew, Serpell, ‘Social Policy Information: Recent Decisions of the High Court of Australia’ (2011) 21 Journal of Judicial Administration 109Google Scholar.

27 Keith, Mason, ‘Ethics and the Environment’ (2011) 10 The Judicial Review 187Google Scholar.

28 Gageler, above n 13.

29 Malbon, above n 9.

30 Australian Broadcasting Corp v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 298 [252] (Callinan J).

31 Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460, 479 [65] (McHugh J).

32 Chief Justice Murray Gleeson, ‘The High Court of Australia: Challenges for its New Century’ (Paper presented at the 2004 Constitutional Law Conference, Parliament House, Sydney, 20 February 2004) <http://www.hcourt.gov.au/assets/publications/speeches/former-justices/gleesoncj/cj_20feb04.html>.

33 Heydon, above n 3. See also Aytugrul v R (2012) 286 ALR 441, 462-3 [71] where Heydon J refers to a wide range of High Court cases in which the High Court has referred to SF material to aid in the development and application of legal principle where that material was not tendered in evidence at trial.

34 HonMichael, Kirby, ‘Judicial Activism? A Riposte to the Counter-Reformation’ (2004) 24 Australian Bar Review 219Google Scholar.

35 See the discussion of ‘legislative facts’ and ‘constitutional facts’ by Heydon J in Thomas v Mowbray (2007) 233 CLR 307, 512–22 [613]-[640]. See also Susan, Kenny, ‘Constitutional Fact Ascertainment’ (1990) 1 Public Law Review 134Google Scholar. This is also discussed in Gageler , above n 13.

36 Mullane has examined the use of social facts in the Family Court. See Mullane, above n 2. I have previously examined the use of social facts in negligence cases in the High Court, in a preliminary stage of this study. See Burns, ‘The Way the World Is’ and ‘The High Court and Social Facts’ above n 22.

37 The study was restricted to High Court cases and did not examine trial or lower appellate court judgments or parties’ oral and written submissions except by way of background in selected instances. The study was conducted within an interpretivist (rather than positivist) epistemological paradigm and utilised a social constructionist approach. A qualitative, rather than a quantitative, approach was taken to the content analysis. The study did not undertake complex statistical analysis or modelling of the data as a quantitative content analysis might have done. Rather, the frequency and sourcing of SF identified in the study will be reported by number and percentage where relevant.

38 The term ‘judgment’ is used to refer to each individual judicial judgment (single or joint) within an overall court decision on a case.

39 For example a judge might suggest that a particular legal rule would create undue burdens for business or commerce. Serpell refers to these judicial statements of consequence as ‘social policy'. See Serpell, above n 26.

40 For example a judge might suggest that the social and economic position of women in Australian society has changed in recent times. See for example De Sales v Ingrilli (2002) 212 CLR 338, 392 [153] (Kirby J).

41 For example a judge may discuss how people generally act when intoxicated, to evaluate how a particular party to the litigation may have acted. See Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469, 478 [17] (Gleeson CJ). Monahan and Walker refer to this as ‘social framework'. See Laurens, Walker and John, Monahan, ‘Social Frameworks: A New Use of Social Science in Law’ (1987) 73 Virginia Law Review 559Google Scholar.

42 For example see discussion in Mark, A Hall and Ronald, F Wright, ‘Systematic Content Analysis of Judicial Opinion’ (2008) 96 California Law Review 63Google Scholar; Richard, A. Posner, How Judges Think (Harvard University Press, 2008)Google Scholar.

43 Obviously there is significant published work utilising standard legal analysis including analysis of High Court case law. Heise has argued that ‘[a]ssertions unconnected to an empirical basis fill law review articles (and judicial opinions)'. This occurs, he argues, because little expertise is required to gather anecdotal evidence and it is relatively ‘simple and transparent'. See Michael, Heise, ‘The Importance of Being Empirical’ (1999) 26 Pepperdine Law Review 807, 808Google Scholar.

44 There is an emerging body of other empirical work on the Australian High Court which studies citation patterns, dissent, and the impact of judicial ideology on case outcomes. Examples include Russell, Smyth, ‘Academic Writing and the Courts: A Quantitative Study of the Influence of Legal and Non-legal Periodicals in the High Court’ (1998) 17 University of Tasmania Law Review 164Google Scholar; Russell, Smyth, ‘Other than “Accepted Sources of Law“?: A Quantitative Study of Secondary Source Citations in the High Court’ (1999) 22 University of New South Wales Law Journal 19Google Scholar; Ian, Ramsay and GP, Stapledon, ‘A Citation Analysis of Australian Law Journals’ (1997) 21 Melbourne University Law Review 676Google Scholar; Matthew, Groves and Russell, Smyth, ‘A Century of Judicial Style: Changing Patterns in Judgment Writing on the High Court 1903-2001’ (2004) 32 Federal Law Review 255Google Scholar; Andrew, Lynch, ‘Dissent: Towards a Methodology for Measuring Judicial Disagreement in the High Court of Australia’ (2002) 24 Sydney Law Review 470Google Scholar; Andrew, Lynch, ‘The Gleeson Court on Constitutional Law: An Empirical Analysis of its First Five Years’ (2003) 26 University of New South Wales Law Journal 32Google Scholar; Andrew, Lynch, ‘Does the High Court Disagree More Often in Constitutional Cases? A Statistical Study of Judgment Delivery 1981-2003’ (2005) 33 Federal Law Review 485Google Scholar; Russell, Smyth, ‘What Explains Variations in Dissent Rates?: Time Series Evidence from the High Court’ (2004) 26 Sydney Law Review 221Google Scholar; Russell, Smyth, ‘The Role of Attitudinal, Institutional and Environmental Factors in Explaining Variations in the Dissent Rate on the High Court of Australia’ (2005) 40 Australian Journal of Political Science 519Google Scholar; Russell, Smyth, ‘“Some are More Equal Than Others“-An Empirical Investigation into the Voting Behaviour of the Mason Court’ (1999) 6 Canberra Law Review 193Google Scholar; Russell, Smyth, ‘Explaining Voting Patterns on the Latham Court 1935-50’ (2002) 26 Melbourne University Law Review 88Google Scholar; Jason, Pierce, ‘Institutional Cohesion in the High Court of Australia: Do American Theories Travel Well Down Under?’ (2008) 46 Commonwealth and Comparative Politics 318Google Scholar; Jason, L Pierce, Inside the Mason Court Revolution: The High Court of Australia Transformed (Carolina Academic Press, 2006)Google Scholar.

45 For the definition of social policy, see above n 39. The term SF in this study was not confined to statements of social policy or consequence, but did include those statements.

46 See Serpell, above n 26. Serpell's original study discussed case studies of four High Court cases and his 2011 study discussed case studies of a further three cases.

47 Richard Haigh utilised the AUSTLII and Lexis Caselaw databases to investigate the use of the terms ‘trite’ and ‘trite law’ in the text of High Court decisions. See Richard, Haigh, ‘It is Trite and Ancient Law: The High Court and the Use of the Obvious’ (2000) 28 Federal Law Review 87Google Scholar.

48 See Yanir, Seroussi, Russell, Smyth and Ingrid, Zukerman, ‘Ghosts from the High Court's Past: Evidence from Computational Linguistics for Dixon Ghosting for McTiernan and Rich’ (2011) 34 University of New South Wales Law Journal 984Google Scholar.

49 Burns, above n 22.

50 Hall and Wright, above n 42, 65. This differs from more traditional legal methods of analysis as it allows for analysis of whole bodies of case law to make generalisable findings, rather than analysis of selected cases only and reliance on ‘anecdotal’ findings.

51 Lisa, Webley, ‘Qualitative Approaches to Empirical Legal Research’ in Peter, Cane and Herbert, Kritzer (eds), The Oxford Handbook of Empirical Legal Research (Oxford University Press, 2010) 927, 941Google Scholar. It can be ‘descriptive’ as well as being used to ‘explain or develop’ theories. Hall and Wright, above n 42, 65 citing Klaus, Krippendorf, Content Analysis: An Introduction to Its Methodology (SAGE, 2nd ed, 2004) 18Google Scholar, note that content analysis is utilised to provide ‘replicable and valid inferences from texts'. This of course is the perspective of positivist ‘classical’ accounts of content analysis. More interpretative models of content analysis do not place as much emphasis on concepts such as validity and replicability.

52 Hall and Wright, above n 42, 65, writing about the emerging use of content analysis to study judicial opinions in the United States, note that legal scholars have developed ‘their uses of content analysis organically'. Reference to methodological literature has been rare. They argue that content analysis is ‘perfectly suited’ for examination of judicial reasoning.

53 Australian ‘legal’ examples of the use of content analysis include Chris, Dent and Andrew, T Kenyon, ‘Defamation Law's Chilling Effect: A Comparative Content Analysis of Australian and US Newspapers’ (2004) 9(2) Media and Arts Law Review 89Google Scholar; Elena, Marchetti, ‘Indigenous Women and the RCIADIC: Part I.’ (2007) 7(1) Indigenous Law Bulletin 6Google Scholar; Elena, Marchetti, ‘Indigenous Women and the RCIADIC: Part II’ (2007) 7(2) Indigenous Law Bulletin 6Google Scholar; Jane, Wangmann, ‘Gender and Intimate Partner Violence: A Case Study from NSW’ (2010) 33 University of New South Wales Law Journal 945Google Scholar; Lorana, Bartels, ‘To Suspend or Not to Suspend: A Qualitative Analysis of Sentencing Decisions in the Supreme Court of Tasmania’ (2009) 28 University of Tasmania Law Review 23Google Scholar; Lyn, Hinds, ‘Three Strikes and You're Out in the West: A Study of Newspaper Coverage of Crime Control in Australia’ (2005–2006) 17 Current Issues in Criminal Justice 239Google Scholar; Karen, Yeung, ‘Does the Australian Competition and Consumer Commission Engage in Trial by Media’ (2005) (27) Law and Policy 549Google Scholar; Maloney, Lawrie, ‘Do Fathers ‘Win’ or do Mothers ‘Lose'?: A Preliminary Analysis of Closely Contested Parenting Judgments in the Family Court of Australia’ (2001) 15(3) International Journal of Law, Policy and the Family 363CrossRefGoogle Scholar (see also the references to previous studies of the Family Court at 366–7); Deirdre, Howard-Wagner, ‘Who are the Real ‘Heroes’ and ‘Villains': The Print Media's Role in Constructing the ‘Public Liability Crisis’ as a ‘Moral Panic Drama'’ (2006-2008) 10 Newcastle Law Review 69Google Scholar; Rebecca, Deering and David, Mellor, ‘Sentencing of Male and Female Child Sex Offenders: Australian Study’ (2009) 16 Psychiatry, Psychology and the Law 394Google Scholar.

54 Cases were categorised as ‘negligence’ cases if they were indexed under the relevant CLR index or AustLII case headnote headings as being about negligence or damages (where the relevant case was a negligence case) and dealt with an element of a negligence action. Cases were not categorised as about ‘negligence’ if they were indexed only under private international law and dealt with issues arising out of that area of law, were indexed under workers’ compensation (where a common law issue did not also arise), only dealt with issues relating to statutory accident compensation schemes, only dealt with limitation of actions procedures or other purely procedural issues (eg, pleading rules or damages interest calculations), or only raised issues arising from the Trade Practices Act 1974 (Cth).

55 This period included two judicial retirements (Gaudron J and McHugh J) and two judicial appointments (Heydon J and Crennan J). However, Crennan J did not take part in any negligence judgments handed down in late 2005 following her appointment and is not included in the content analysis study. Given the retirement of Gaudron J early in the study period, the majority of judgments studied in the content analysis did not include any judgments by a female judge. The time period chosen was also one during which the state of negligence law was in a rapid period of transition. See Harold, Luntz, ‘Torts Turnaround Downunder’ (2001) 1 Oxford University Commonwealth Law Journal 95Google Scholar.

56 Accordingly, no sampling issues arose. All cases were coded from the electronic full text version of the High Court judgments for 2001-2005 available on AustLII.

57 See, for example, discussion in Harold, Luntz, ‘The Use of Policy in Negligence Cases in the High Court of Australia’ in Michael, Bryan (ed), Private Law in Theory and Practice (Routledge-Cavendish, 2007) 55Google Scholar; Christian, Witting, ‘Tort Law, Policy and the High Court of Australia’ (2007) 31 Melbourne University Law Review 569Google Scholar; Andrew, Robertson, ‘Constraints on Policy-Based Reasoning in Private Law’ in Andrew, Robertson and HW, Tang (eds), The Goals of Private Law (Hart Publishing, 2009)Google Scholar.

58 Over the relevant period , the negligence cases in this study made up 12.12% of all appeal judgments handed down by the High Court (44/363 appeal judgments handed down in 2001–2005) and 15.06% of all civil appeal judgments (44/292 civil appeal judgments). The number of appeal judgments is drawn from the High Court of Australia Annual Reports available at High Court of Australia, Annual Reports <http://www.hcourt.gov.au/publications/annual-reports/annual-reports>.

59 Smyth, ‘Other than Accepted Sources of Law', above n 44.

60 Ibid 33.

61 Ibid. Smyth notes that this accords with American studies which found that constitutional cases in the United States accounted for the highest rate of secondary citations. Smyth accounts for this on the basis of the difficult interpretation issues in constitutional cases and also the predominance of constitutional cases in the caseload of the court.

62 Searches of the database CASEBASE were utilised to gather this information for each case studied.

63 This form of qualitative coding has an inherent subjective element, as do other forms of interpretative qualitative (and even quantitative) empirical research. For this reason, the significance coding of cases is indicated in Appendix 1 so that coding choices are clearly apparent to other researchers.

64 For example Manley v Alexander (2005) 223 ALR 228.

65 For example Cattanach v Melchior (2003) 215 CLR 1.

66 Where more than one SF about the same subject matter occurred in a single numbered paragraph of a judgment, they were coded as a single SF record. However, where a SF about the same subject matter occurred in a subsequent numbered paragraph, it was coded as a new SF record.

67 The general definition of SF discussed in the introduction to this article was used to identify SF. More detailed coding instructions in relation to the application of the definition of SF are held on file with the author.

68 A SF was recorded as referenced when a footnote reference was provided for at least part of the statement (even if not for all of the statement) or when it was made clear in the text of the SF that it was sourced to some other source such as an expert witness, counsel's brief or an intervener. If a judge only explicitly cited their own previous judgment in a case, that was not counted as a reference.

69 There is a methodological debate about how to categorise High Court judgments, as either majority or dissenting judgments, for the purpose of dissent studies. See, eg, Lynch, ‘Dissent: Towards a Methodology for Measuring Judicial Disagreement in the High Court of Australia', above n 44. This study adopted the simple method of categorising a judgment as a majority judgment if it concurred with the majority on the overall resolution of the appeal, either allowing or dismissing the appeal on the orders. A judgment was coded as a majority judgment if it concurred with the majority on the overall resolution of the appeal, even if some aspects of the judicial reasoning differed among the majority judges or where there was dissent on a costs or procedural issue only. See Smyth, ‘The Role of Attitudinal, Institutional and Environmental Factors in Explaining Variations in the Dissent Rate on the High Court of Australia', above n 44.

70 More detailed coding instructions and the ACCESS database recording the data are on file with the author.

71 The SF in the examples quoted are in italics.

72 Cole v South Tweed Heads Rugby League Football Club (2004) 217 CLR 469, 499 [106] (Kirby J).

73 D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1, 117 [374] (Callinan J).

74 Cattanach v Melchior (2003) 215 CLR 1, 126 [347] (Heydon J).

75 See above n 57. On the use of ‘social policy’ based arguments in other categories of case in the High Court of Australia see Serpell, above n 26.

76 See Walker and Monahan, above n 41.

77 Cattanach v Melchior (2003) 215 CLR 1, 22-3 [36] (Gleeson CJ).

78 Cole v South Tweed Heads Rugby League Football Club (2004) 217 CLR 469, 478 [17] (Gleeson CJ).

79 Ibid 504 [125] (Callinan J).

80 (2005) 227 CLR 1, 13–14 [44] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ).

81 Ibid.

82 Cole v South Tweed Heads Rugby League Football Club (2004) 217 CLR 469, 482 [35] (McHugh J), 506 [130] (Callinan J).

83 For example, Cole v South Tweed Heads Rugby League Football Club (2004) 217 CLR 469, 500 [108] (Kirby J), 504 [125] (Callinan J); D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1, 37 [102] (McHugh J); Sullivan v Moody (2001) 207 CLR 562, 581 [57] (Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ); Tame v New South Wales (2002) 211 CLR 317, 430 [335] (Callinan J), 335 [26] (Gleeson CJ).

84 For example, Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515, 528 [17] (Gleeson CJ, Gummow, Hayne and Heydon JJ), 549–50 [81]–[87] (McHugh J), 552–3 [95]–[96] (McHugh J), 554 [100] (McHugh J), 555 [103] (McHugh J), 557–8 [107]–[108] (McHugh J), 558–60 [110]–[114] (McHugh J), 562 [126] (Kirby J), 563 [129] (Kirby J), 579 [181] (Kirby J), 589 [213]–[214] (Callinan J), 590–1 [218] (Callinan J), 592 [223] (Callinan J); Tepko Pty Ltd v Water Board (2001) 206 CLR 1, 44 [133] (Kirby and Callinan JJ).

85 Neindorf v Junkovic (2005) 222 ALR 631, 633–4 [7]–[9] (Gleeson CJ), 634 [12] (Gleeson CJ), 635 [14] (Gleeson CJ), 637 [23] (Kirby J), 646–7 [59] (Kirby J), 648 [66] (Kirby J), 649 [69] (Kirby J), 650 [73] (Kirby J), 651 [75] (Kirby J), 654 [86] (Kirby J), 656 [94] (Kirby J), 656 [96] (Kirby J), 657 [100]–[101] (Callinan and Heydon JJ), 661 [116] (Callinan and Heydon JJ).

86 Ibid 657 [100] (Callinan and Heydon JJ).

87 New South Wales v Lepore (2003) 212 CLR 511,540 [53] (Gleeson CJ), 544 [66]–[67] (Gleeson CJ), 546 [74] (Gleeson CJ), 559 [123] (Gaudron J), 572–3 [164]–[165] (McHugh J), 583 [204] (Gummow and Hayne JJ), 586–7 [215]–[216] (Gummow and Hayne JJ), 587 [217]–[218] (Gummow and Hayne JJ), 581 [221] (Gummow and Hayne JJ), 594 [240]–[241] (Gummow and Hayne JJ), 602 [268] (Gummow and Hayne JJ), 604 [276] (Kirby J), 627 [327] (Kirby J), 625 [342] (Callinan J). For further discussion of the nature of investigation of child sexual abuse see Sullivan v Moody (2001) 207 CLR 562, 582 [62] (Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ).

88 Trustees of the Roman Catholic Church for the Diocese of Canberra and Goulburn v Hadba (2005) 221 CLR 161, 170 [25] (Gleeson CJ, Hayne, Callinan and Heydon JJ), 171 [27] (Gleeson CJ, Hayne, Callinan and Heydon JJ), 174 [39] (McHugh J), 175 [44] (McHugh J), 176 [46] (McHugh J).

89 For example, matters of coherence and consistency.

90 Future research utilising different methods would be required to determine this. This may also be an area of strength for more traditional doctrinal legal research.

91 As discussed above, cases were coded as high significance, medium significance or low significance. There were 16 high significance cases, 21 medium significance cases and eight low significance cases. The total number of judicial SF for each case was extracted from the overall SF database.

92 Cattanach v Melchior (2003) 215 CLR 1.

93 D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1.

94 Tame v New South Wales (2002) 211 CLR 317.

95 Brodie v Singleton Shire Council (2001) 206 CLR 512.

96 New South Wales v Lepore (2003) 212 CLR 511.

97 Cole v South Tweed Heads Rugby League Football Club (2004) 217 CLR 469.

98 Czatyrko v Edith Cowan University (2005) 214 ALR 349. Manley v Alexander (2005) 223 ALR 228 (which concerned the interpretation of the relevant adjudicative facts in relation to whether a breach had occurred) also had zero SF.

99 Shorey v PT Ltd (2003) 197 ALR 410.

100 Willett v Futcher (2005) 221 CLR 627.

101 Amaca Pty Ltd v New South Wales (2003) 199 ALR 596.

102 There were a small number of ‘outlier’ cases in the data, including Sullivan v Moody (2001) 207 CLR 562 with only 4 SF. A number of factors may explain the low number of SF in this case despite its high significance. The case was a single unanimous judgment of only 66 paragraphs, highly unusual in High Court cases concerning novel or difficult legal issues. The High Court was particularly concerned in Sullivan v Moody to limit the role of extra-legal concerns and policy in the test for determination of duty of care in Australia. As discussed below, there was less judicial use of SF in cases where there were lower numbers of individual judgments. In addition, as discussed below joint majority judgments exhibited the lowest average number of SF/judgment. Finally, Kirby J did not sit as part of the High Court in Sullivan v Moody. Kirby J was the highest judicial user of SF identified in the study.

103 See Appendix 2.

104 Heydon, above n 14, 155.

105 Ibid.

106 Some cases did refer explicitly in some sections to SF evidence which had been given by expert witnesses. For example, see Swain v Waverley Municipal Council (2005) 220 CLR 517; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540. In addition, during the course of this study I reviewed the High Court files for the matters which led to the decisions in Cattanach v Melchior (2003) 215 CLR 1 and D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1. Both these High Court files showed some evidence (for example in counsel's submissions and in Accompanying Material filed on behalf of the parties) that parties do make some references to SF (sourced and unsourced) during their written arguments to the High Court on appeal.

107 An investigation of how judges implicitly use SF material is an area for further research. This question would need to be investigated using different research methods, for example judicial interviews and surveys, or by using a different form of content analysis to investigate how SF in counsel's submission (oral and written) or expert evidence are reflected in judicial reasoning.

108 De Sales v Ingrilli (2002) 212 CLR 338, 405-6 [192] (Callinan J); Cattanach v Melchior (2003) 215 CLR 1, 64 [164] (Kirby J); Neindorf v Junkovic (2005) 222 ALR 631, 634 [9] (Gleeson CJ); Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460, 511 [165] (Callinan J).

109 ‘It is notorious that over many years the first appellant and other members of the group of companies to which it belongs mined asbestos, and manufactured and supplied asbestos-based products. Very large numbers of their employees have been exposed to asbestos; many of them have contracted asbestosis and mesothelioma as a result…’ CSR Ltd v Eddy (2005) 226 CLR 1, 35 [80] (Gleeson CJ, Gummow and Heydon JJ).

110 ‘Experience tells that in human affairs there are many controvertible assertions, and, matters of science and mathematics apart, real disputation as to which facts may be and which may not be incontrovertible'. Fox v Percy (2003) 214 CLR 118, 168 [152] (Callinan J).

111 ‘Many citizens may believe that, in various matters, there should be more extensive government regulation. Others may be of a different view, for any one of a number of reasons, perhaps including cost.’ Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540, 553 [6] (Gleeson CJ).

112 ‘But few would contend that travelling at 10 kilometres per hour was the only reasonable response to the risk of a motor car accident.’ Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540, 586 [111] (McHugh J).

113 ‘It may readily be accepted that public authorities, armed with statutory powers to compel, prevent or punish conduct, frequently exercise informal and non-coercive influence or persuasion over those persons and organisations against whom they are empowered formally to act.’ Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540, 610 [185] (Gummow and Hayne JJ).

114 ‘Another is that the market is mistaken on some basis other than manipulation. It is common to speak of shares being undervalued (or overvalued) by the market.’ HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640, 658 [37] (Gleeson CJ, McHugh, Gummow, Kirby and Heydon JJ).

115 ‘Most of the time, the creek contained sand dunes known as bedforms. They are undulations on the floor of the creek, caused by the movement of water along the bed of the creek, particularly the movement of water caused by tides. They are a well-known and natural phenomenon, found in tidal estuaries around the world.’ Mulligan v Coffs Harbour City Council (2005) 223 CLR 486, 492–3 [12] (McHugh J).

116 Neindorf v Junkovic (2005) 222 ALR 631, 657 [100] (Callinan and Heydon JJ).

117 ‘Examination will usually reveal that the event came about as the result of a complex mixture of acts or omissions.’ Pledge v Roads and Traffic Authority (2004) 205 ALR 56, 59 [9] (Hayne J).

118 ‘It is well understood that the legal concept of causation differs from notions of causation which appear in the speculations of philosophers and the perceptions by scientists of the operation of natural laws.’ Rosenberg v Percival (2001) 205 CLR 434, 460 [85] (Gummow J).

119 ‘A case such as that of Mrs Tame explains the increasing awareness, both in the medical profession and in the community generally, of the emotional fragility of some people, and the incidence of clinical depression resulting from emotional disturbance.’ Tame v New South Wales (2002) 211 CLR 317, 332 [14] (Gleeson CJ).

120 ‘Observation confirms that, in this community, it is accepted that there may be some circumstances in which reasonableness requires public authorities to warn of hazards associated with recreational activities on land controlled by those authorities. Most risky recreational activities, however, are not the subject of warning signs.’ Vairy v Wyong Shire Council (2005) 223 CLR 442, 427 [8] (Gleeson CJ and Kirby JJ).

121 ‘Not surprisingly, it was accepted, as is common knowledge, that the level of the ocean floor may and does change because of the movement of sand along the coast caused by currents and wind.’ Vairy v Wyong Shire Council (2005) 223 CLR 442, 474 [187] (Callinan and Heydon JJ).

122 ‘In the ordinary course a person who is not injured will not have to husband a large sum of money over a long period of time in such a way as to ensure an even income stream but the complete exhaustion of the fund at the end of the period.’ Willett v Futcher (2005) 221 CLR 627, 643 [51] (Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ).

123 Guthrie, Rachlinski and Wistrich have argued that ‘eliminating all intuition from judicial decision-making is both impossible and undesirable because it is an essential part of how human brains function. Intuition is dangerous not because people rely on it but because they rely on it when it is inappropriate to do so.’ See Chris, Guthrie, Jeffrey, Rachlinski and Andrew, Wistrich, ‘Blinking on the Bench: How Judges Decide Cases’ (2007) 93 Cornell Law Review 1, 5Google Scholar.

124 Tepko Pty Ltd v Water Board (2001) 206 CLR 1, 54 [165] (Kirby and Callinan JJ).

125 See discussion in Graycar, above n 25.

126 Cultural worldview refers to one's preferences about ‘how society should be organised'. See discussion in Dan, Kahan and Donald, Braman, ‘Cultural Cognition and Public Policy’ (2006) 24 Yale Law and Policy Review 147Google Scholar. For recent discussion of empirical research into how cultural worldviews can impact on judicial reasoning see Dan, Kahan, David, Hoffman and Donald, Braman, ‘Whose Eyes Are You Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalism’ (2009) 122 Harvard Law Review 837Google Scholar; Dan, Kahan et al, ‘'They Saw a Protest': Cognitive Illiberalism and the Speech-Conduct Distinction’ (2012) 64 Stanford Law Review 851Google Scholar.

127 For further discussion of recent empirical research investigating the dangers that can arise from unconscious judicial use of intuitive reasoning, see Guthrie, Rachlinski and Wistrich, above n 123; Chris, Guthrie, Jeffrey, Rachlinski and Andrew, Wistrich, ‘Inside the Judicial Mind’ (2001) 86 Cornell Law Review 777Google Scholar; Chris, Guthrie, Jeffrey, Rachlinski and Andrew, Wistrich, ‘The “Hidden Judiciary“: An Empirical Examination of Executive Branch Justice’ (2008-2009) 58 Duke Law Journal 1477Google Scholar; Jeffrey, Rachlinski et al, ‘Does Unconscious Racial Bias Affect Trial Judges?’ (2009) 84 Notre Dame Law Review 1195Google Scholar; Andrew, Wistrich, Chris, Guthrie and Jeffrey, Rachlinski, ‘Can Judges Ignore Inadmissible Information? The Difficulty of Deliberately Disregarding’ (2004–2005) 153 University of Pennsylvania Law Review 1251Google Scholar.

128 Each SF record was reviewed and it was determined what kind of reference or source it referred to or contained. The case was coded for each ‘category’ of reference or source the SF referred to, rather than the total number of references or sources referred to by the SF. For example a SF which was referenced to four cases and one secondary source was coded once for the case category and once for the secondary source category.

129 A single SF might be referenced to both cases and a secondary source, which would have resulted in a case category and a secondary source category being recorded for that SF. For example in Cattanach v Melchior (2003) 215 CLR 1, 88 [240], Hayne J referred to the fact that ‘sterilisation procedures have been available and used for much of the twentieth century'. This was sourced at n 454 to a 1934 American case: Christensen v Thomby (1934) 255 NW 620, and to a 1930 journal article: Miller and Dean, ‘Liability of Physicians for Sterilisation Operations’ (1930) 16 American Bar Association Journal 156Google Scholar.

130 These books and articles were predominantly legal books and articles. Books or articles which were published empirical studies were counted in the empirical evidence category.

131 Fox v Percy (2003) 214 CLR 118, 129 [31] (Gleeson CJ, Gummow and Kirby JJ) referring to Samuels JA in Trawl Industries Pty Ltd v Effem Foods Pty Ltd (1992) 27 NSWLR 326, 328 (Samuel JA) ('Trawl’) and noting also SRA (1999) 160 ALR 588, 617–18. The SRA case was also referred to by Kirby J in Suvaal v Cessnock City Council (2003) 200 ALR 1, 19 [73]; Rosenberg v Percival (2001) 205 CLR 434, 488 [163]. He referred to the Trawl case in Suvaal v Cessnock City Council (2003) 200 ALR 1, 19 [71].

132 For example, the most recent empirical source noted in the material referred to in the Trawl and SRA cases (as cited in Fox v Percy (2003) 214 CLR 118) was 25 years old at the time of judgment in Fox v Percy. The study of the impact of appearance and other personal characteristics on human credibility assessment has been described as giving rise to a ‘huge’ literature in the fields of social psychology and psychology and law. It is a sophisticated and constantly evolving body of literature, particularly in the last twenty years. See Barbara, Spellman and Elizabeth, Tenney, ‘Credibility Testimony In and Out of Court’ (2010) 17 Psychonomic Bulletin and Review 168Google Scholar; Stephen, Porter, Leanne, ten Brinke and Chantal, Gustaw, ‘Dangerous Decisions: The Impact of First Impressions of Trustworthiness on the Evaluation of Legal Evidence and Defendant Culpability’ (2010) 16 Psychology, Crime and Law 477Google Scholar.

133 For example, in Cole v South Tweed Heads Rugby League Football Club, Kirby J quoted from and accepted part of the expert report of a pharmacologist received into evidence detailing the effects of alcohol consumption: Cole v South Tweed Heads Rugby League Football Club (2004) 217 CLR 469, 498 [103]. A number of judges in Graham Barclay Oysters Pty Ltd v Ryan referred to SF about the nature of the oyster growing process, and the process by which oysters can be subject to viral contamination: Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540, 578–9 [88] (McHugh J), 588 [118] (Gummow and Hayne JJ), 615 [202] (Gummow and Hayne JJ). There were a number of SF identified in Swain v Waverley Municipal Council, where judges referred to expert evidence about the hazards of swimming and the nature of beaches and beach formation: Swain v Waverley Municipal Council (2005) 220 CLR 517, 523 [12] (Gleeson CJ), 523–4 [14] (Gleeson CJ), 549 [84] (McHugh J), 552 [95] (McHugh J), 552–3 [97] (McHugh J). In Woods v Multi-Sport Holdings Pty Ltd, judges referred to expert evidence on issues such as the nature and history of indoor cricket as a sport, the frequency of eye injuries in sport including indoor cricket, and the wearing of helmets and protective equipment in sport generally: Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460, 465–7 [4]–[11], 468–9 [22]–[24] (Gleeson CJ), 476–7 [57]–[59], 483 [77] (McHugh J), 486–8 [89]–[96] (Kirby J).

134 Note the concerns expressed by Gary Edmond in relation to the way in which Australian courts use expert evidence, which cast doubt on expert evidence being a panacea for poor quality SF. See Gary, Edmond, ‘Bacon's chickens? Re-thinking Law and Science (and Incriminating Expert Opinion Evidence) in Response to Empirical Evidence and Legal Principle’ in Justin, Gleeson and Ruth, Higgins (eds), Constituting Law: Legal Argument and Social Values (2011) 93Google Scholar.

135 As noted in n 37, this study considered the text of the High Court cases studied; it did not generally study the lower court decisions, or party oral or written submissions before the High Court. As part of general background research, written submissions and High Court files were only viewed in two cases: Cattanach v Melchior (2003) 215 CLR 1 and D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1. Accordingly, where it is not apparent in the High Court judgment how the judge sourced the empirical material no conclusion can generally be drawn on whether the research came from lower court decisions, from the parties’ submissions or from the judge's own research.

136 Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460, 477–8 [62] citing Colin Mathers and Ruth Penn, ‘Health System Costs of Injury, Poisoning and Musculoskeletal Disorders in Australia 1993-4: Health and Welfare Expenditure Series Number 6’ (Australian Institute of Health and Welfare, 1999) <http://www.aihw.gov.au/publication-detail/?id=6442467026>. See also the reference at 478 [62] to a survey carried out by the Australia Bureau of Statistics: Australian Bureau of Statistics, ‘National Health Survey: Injuries, Australia’ (1998), regarding the prevalence of injuries.

137 Cattanach v Melchior (2003) 215 CLR 1, 56 [144] citing Richard Percival and Ann Harding, ‘AMP - NATSEM Income and Wealth Report Issue 3: All They Need is Love … and Around $450000’ (National Centre for Social and Economic Modelling, 2002). <http://www.natsem.canberra.edu.au/publications/?publication=ampnatsem-income-and-wealth-report-issue-3-all-they-need-is-loveand-around-450000>. The report on the costs of raising children was referred to in Appellants’ Written Submissions to the High Court during the hearing of Cattanach v Melchior and a copy was provided to the High Court as part of the accompanying materials filed for the Appellants. Appellants’ Submissions and Accompanying Materials (Appellant) Volume 2, Submission in Cattanach v Melchior, 24 January 2003. I noted these materials during a search of the High Court file for the Cattanach case carried out during the course of the research for this study.

138 Cattanach v Melchior (2003) 215 CLR 1, 44 [105] n 196, citing Alfred Kinsey, Wardell Pomeroy and Clyde Martin, Sexual Behaviour in the Human Male (1948) and Alfred Kinsey et al, Sexual Behavior in the Human Female (1953). The Kinsey Reports, although path breaking, are now 64 and 59 years old, respectively. They could not be said (of themselves) to represent ‘current’ empirical evidence from the field of human sexuality research. See, for example, some of the contemporary research carried out at the Kinsey Institute: The Kinsey Institute <http://www.kinseyinstitute.org/>.

139 These included a number of references in De Sales v Ingrilli (2002) 212 CLR 338 to Australian Bureau of Statistics data on marriage and divorce and to the growing incidence of de facto relationships. See for example the reference by Kirby J at 380 [117] n 100 to Australian Bureau of Statistics and Office of the Status of Women, ‘Australian Women's Yearbook’ (1997).

140 For example, the reference in Brodie v Singleton Shire Council (2001) 206 CLR 512, 538 [51] n 89 (Gaudron, McHugh and Gummow JJ) to Parliament of New South Wales Public Bodies Review Committee, ‘Public Liability Issues Facing Local Councils’ (November 2000).

141 For example, compare J D, Heydon, ‘Judicial Activism and the Death of the Rule of Law’ (2003) 23 Australian Bar Review 1Google Scholar and Michael, Kirby, ‘Judicial Activism? A Riposte to the Counter-Reformation’ (2004) 24 Australian Bar Review 1Google Scholar.

142 All in Cattanach v Melchior (2003) 215 CLR 1.

143 If Cattanach v Melchior was disregarded then Heydon's score for SF/judgment would have been only 4.8.

144 Cattanach v Melchior (2003) 215 CLR 1, 52–3 [136], 59 [153]. At [153] Kirby J said ‘if the application of ordinary legal principles is to be denied on the basis of public policy, it is essential that such policy be spelt out so as to be susceptible of analysis and criticism. Desirably it should be founded on empirical evidence, not mere judicial assertions'.

145 Heydon, above n 141.

146 Cattanach v Melchior (2003) 215 CLR 1. See discussion in Burns, above n 22.

147 However, as Gaudron J only sat on ten of the 45 cases studied her results may not be directly comparable to the rest of the judges who sat on much higher numbers of cases. In addition, Gaudron J was not a member of the High Court in either of the two most prolific SF cases Cattanach v Melchior (2003) 215 CLR 1 and D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1.

148 Gaudron J used non-case law sources for 14.58% of referenced SF, McHugh J for 14.18% of referenced SF and Kirby J for 14.1 % of referenced SF. The other judges used these sources even less — Gummow J 11.3%, Gleeson CJ 9.09%, Hayne J 7.37%, Callinan J 5.78% and Heydon J 4.97%.

149 Cattanach v Melchior (2003) 215 CLR 1, 52–3 [136], 59 [153] (Kirby J); Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460, 477–81 [62]–[70] (McHugh J).

150 This includes a SF in a joint judgment with Gaudron J and Gummow J in Brodie v Singleton Shire Council (2001) 206 CLR 512.

151 See Heydon, above n 141; Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460, 510–515 [162]–[169] (Callinan J). Callinan J concludes his judgment in the Woods case by ‘referring to Disraeli's disdain for statistics by equating them with falsity'. One of the instances of SF referenced to an empirical source includes Callinan J's references to Australian Bureau of Statistics, ‘National Health Survey: Injuries, Australia’ (1998), however he cites the statistics to refute the arguments of McHugh J and finds the statistics ‘unhelpful to the appellant's cause’ (514 [169]). Writing extra-judicially Heydon J has, however, noted the widespread judicial use of SF, see above n 3, and also referred to judicial use of empirical material in his recent judgment in Aytugrul v R (2012) 286 ALR 441, 462 [70]–[74].

152 Wendy, Martinek, ‘Judges as Members of Small Groups’ in David, Klein and Gregory, Mitchell (eds), The Psychology of Judicial Decision Making (2010) 73, 77Google Scholar. See also HonHarry, Edwards and Michael, Livermore, ‘Pitfalls of Empirical Studies that Attempt to Understand the Factors Affecting Appellate Decisionmaking’ (2008–2009) 58 Duke Law Journal 1895, 1964–6Google Scholar.

153 For a discussion of the effects of court cohesion on judicial decision-making see Pierce, ‘Institutional Cohesion in the High Court of Australia: Do American Theories Travel Well Down Under?', above n 44; Anika, Gauja, ‘High Court Review 2009: Exit Kirby, Enter Consensus?’ (2010) 45 Australian Journal of Political Science 681Google Scholar.

154 Future research could investigate whether similar differences in judicial SF use could be seen between single and joint judgments in different categories of case, over different time periods and with different judicial composition and leadership of the High Court.

155 JusticeMichael, Kirby, ‘Judicial Dissent: Common Law and Civil Law Traditions’ (2007) 123 Law Quarterly Review 379Google Scholar; JusticeMichael, Kirby, ‘Judicial Dissent’ (2005) 12 James Cook University Law Review 4Google Scholar. On the value of dissent in the Australian High Court and societal dissent more generally see Andrew, Lynch, ‘Dissent: The Rewards and Risks of Judicial Disagreement in the High Court of Australia’ (2003) 27 Melbourne University Law Review 724Google Scholar; Andrew, Lynch, ‘Taking Delight in Being Contrary, Worried About Being a Loner or Simply Indifferent: How Do Judges Really Feel About Dissent?’ (2004) 32 Federal Law Review 311Google Scholar; Cass, Sunstein, Why Societies Need Dissent (Harvard University Press, 2005)Google Scholar.

156 I argue that this is a ‘wicked’ problem and there are likely multiple complex interrelated and interdependent legal, institutional, individual, cultural and cognitive processes that explain how judges use and construct SF. Wicked problems are ‘complex, open-ended, and intractable.’ ‘Both the nature of the “problem” and the preferred “solution” are strongly contested.’ See Brian, Head, ‘Wicked Problems in Public Policy’ (2008) 3 Public Policy 101, 101Google Scholar.

157 Given the ‘wicked’ nature of the problem, any solutions are likely to be multiple, complex and interacting. Single factor reforms, such as improving information flow through devices such as amicus curiae or Brandeis briefs, are unlikely to be effective of themselves in improving the accuracy of judicial use of SF.