Judicial Notice: Beyond Adversarialism and into the Exogenous Zone

Griffith Law Review, Vol. 25, No. 3, pp. 291-318, 2016

Sydney Law School Research Paper No. 17/07

33 Pages Posted: 3 Feb 2017

See all articles by David A. Hamer

David A. Hamer

The University of Sydney - Faculty of Law

Gary Edmond

University of New South Wales (UNSW) - UNSW Law & Justice

Date Written: February 2016

Abstract

Recent Australian decisions regarding courts’ unilateral access to exogenous (ie, non-legal) knowledge have been restrictive, reflecting a strong commitment to the adversarialist principle of party presentation. With reference to underlying goals of factual accuracy, efficient dispute resolution, fairness and institutional integrity we argue that the restrictions should be loosened. The strict principle of party presentation, with only narrow scope for judicial notice, may be justified with regard to the specific facts of the case, given that the parties will have special access to relevant evidence and a strong motivation to present it. However, there is no reason to privilege the parties where legislative facts and general factual propositions are in issue. While the parties should, of course, be given notice and the opportunity to make submissions, the courts should feel an obligation to draw on a wider range of sources of information. This is particularly the case where there is an imbalance in the resources of the parties.

Keywords: Expert evidence, specialised knowledge, proof, judicial notice, legislative facts, constitutional facts, empirical frameworks

JEL Classification: K10, K14, K30, K41

Suggested Citation

Hamer, David A. and Edmond, Gary, Judicial Notice: Beyond Adversarialism and into the Exogenous Zone (February 2016). Griffith Law Review, Vol. 25, No. 3, pp. 291-318, 2016, Sydney Law School Research Paper No. 17/07, Available at SSRN: https://ssrn.com/abstract=2910792

David A. Hamer (Contact Author)

The University of Sydney - Faculty of Law ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

Gary Edmond

University of New South Wales (UNSW) - UNSW Law & Justice ( email )

Kensington, New South Wales 2052
Australia

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