court, prior acquaintance with the judge when he or she was a practising
lawyer, social meetings, public speeches of the judge or from any legal or
other writing which a judge has done.
517
For example, several justices of the
High Court of Australia have gone into print. In some cases their writing may
have been too late to be used because they had retired, but it still can provide
an insight into why they decided cases as they did. Certain other justices have
enlightened us with their views on the role of judges
518
and the role of appellate
advocates.
519
On the surface another good indicator of likely judicial response is any recent
cases in the court on the point, especially if these show a strong trend. The
problem is that these show only the broad trend for the type of case (which is
useful) but may not help on any factors which are peculiar to the case in hand.
Knowledge of judges may also be second hand from other lawyers. One of the
advantages of barristers in the English system (which is adopted in many
common law jurisdictions) having their chambers in a building with many other
barristers is that the folklore or grapevine of the bar can record and transmit
this information from one barrister to another.
520
Fourth, in some cases there may be official guidelines to help a lawyer with a
question of interpretation. This is more likely to be the case where a decision
maker is not a court but an administrative official or body. A good example is
the taxation rulings made by the Australian Commissioner of Taxation to guide
taxpayers as to how the Commissioner will interpret and administer the
provisions of the various tax Acts.
These and other matters may make prediction of judicial response more
reliable, but in the last resort it is still a matter of guess work, even for those
close to the action. As with betting on racehorses, past performance and
known tendencies are a guide, but are not infallible.
517
See Young (1993). There are several types of writing which are particularly
relevant. Good examples are where judges speak directly about the judicial
function. However, a judge who strays into public controversy may risk criticism
for stepping beyond the judicial role, so there is a question of what limits there
should be (if any) on judicial freedom to comment in published writings (and also
in public speeches). On this see -
Loper (1996), Russell (1996), Mackay (1993),
Ripple (1989), Ziegal (1996), Cameron (1996).
518
See Justice Kirby’s views in Kirby (1992); Kirby, (1997); Chief Justice
Mason’s in Mason (1996); Mason (1984), Justice McHugh’s in McHugh (1999);
McHugh, (1988); McHugh (1988).
519
See Chief Justice Mason’s views in Mason, (1984), and the views of Chief
Justice Gibbs views in Gibbs (1986).
520
See Giles (1987).
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