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The ever elusive fact/law distinction

Ian Ellis-Jones* (2007) 13 LGLJ 66

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The fact/law distinction, which is of enormous significance in the context of both the common law doctrine of jurisdictional error as well as statutory appeal for error of law, is one of many elusive, indeed annoying, dichotomies in our law. The issue of whether a particular question is one of fact as opposed to law is often fraught with difficulties, and the task has not been made easier by the courts which have often applied conflicting criteria with indeterminate and altogether unpredictable results. One of the worst grey areas has been the question of whether primary facts, fully found, come within a statutory description. There has been conflicting judicial authority as to whether that question is one of fact or law, but it is now clear that it is ordinarily a question of fact in circumstances where divergent conclusions or inferences can, on the evidence, be drawn as to whether or not the primary facts come within the ambit of a statutory description. However, a question of law is involved where only one conclusion or inference can be drawn from a set of primary facts as to whether or not they come within the ambit of a statutory description, and an error of law occurs where a contrary conclusion or inference has been drawn by the original decision-maker. In addition, it would appear that a question of law is involved where the statute uses the words comprising the statutory description in a sense other than their ordinary meaning. Nevertheless, the fact/law distinction can still present problems in the context of the drawing of conclusions or inferences from primary facts which may sometimes be conclusions or inferences of fact and sometimes conclusions or inferences of law.

INTRODUCTION

Jurisdictional matters may involve questions of fact (called, relevantly,

“jurisdictional fact”),1 as well as questions of law, and possibly also what have

1* Solicitor of the Supreme Court of New South Wales and the High Court of Australia, Senior Lecturer, Faculty of Law, University of Technology, Sydney, and Consultant, Arraj Lawyers, Sydney.? A jurisdictional fact is some fact or fact situation which “must” exist in fact as a condition precedent or essential prerequisite for the decision-maker to exercise its jurisdiction in circumstances where the legislature intended that the absence or presence of the fact or fact situation would invalidate action under the statute. See, eg, Timbarra Protection Coalition v Ross Mining NL (1999) 46 NSWLR 55; 102 LGERA 52; Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; Chambers v Maclean Shire Council (2003) 57 NSWLR 152; 126 LGERA 7. See, generally, Ellis-Jones I, “The ‘Jurisdictional Fact

been referred to as “mixed questions of fact and law”. Green has aptly written:

No two terms of legal science have rendered better service than “law” and “fact” … They readily accommodate themselves to any meaning we desire to give them …They are the creations of centuries. What judge has not found refuge in them? The man who could succeed in defining them would be a public enemy.2

THE PARAMOUNTCY OF FACTS

Softly be it stated, but it is undeniably the case that the fact/law distinction is one

of those many elusive, even dubious, dichotomies in administrative law that, in

judicial review proceedings, “provide the margin between restraint and

intervention, validity and invalidity”.3 Dickinson has rightly pointed out that

“[m]atters of law grow downward into roots of fact, and matters of fact reach

upward, without a break, into matters of law”.4 The High Court of Australia had

this to say about the matter in Collector of Customs v Agfa Gevaert Limited:5

The distinction between questions of fact and questions of law is a vital distinction in many fields of law. Notwithstanding attempts by many distinguished judges and jurists to formulate tests for finding the line between the two questions, no satisfactory test of universal application has yet been formulated.6

It has been said that “whether an error is one of fact or law is determined by legal

theory”,7 but with respect the supposed theory is far from helpful. Even as

regards questions of fact, there is an elusive distinction between so-called

“primary” and “ultimate” questions of fact. The ultimate question of fact (factum

probandum) is the ultimate or end-point fact in issue. Take, for example, the

definition of “farmland” in s 515(1) of the Local Government Act 1993 (NSW). The

ultimate question of fact (also being one of jurisdictional fact) is whether or not a

particular parcel of rateable land is “farmland” as relevantly defined. However, in

Doctrine’ in NSW Local Government and Environmental Planning Law” (2006) 12 LGLJ 16.2 Green L, Judge and Jury (Kansas City MO: Vernon Law Book Co, 1930), p 270.3 McMillan J, “Developments under the ADJR Act: The Grounds of Review” (1991) 20 FL Rev 50 at 51.4 Dickinson J, Administrative Justice and the Supremacy of Law (Cambridge MA: Harvard University Press, 1927), p 55.5 (1996) 186 CLR 389.6 (1996) 186 CLR 389 at 394 per Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ.7 Azzopardi v Tasman UEB Industries Ltd [1985] 4 NSWLR 139 at 156 per Glass JA (Samuels JA agreeing).

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order for land to fall or come within the statutory description of “farmland” the

existence of certain factual preconditions or prerequisites set forth in the

definition (for example, the dominant use of the land must be for one or more of

the businesses or industries of farming as described in the statutory provision)

must be established. Certain material facts must therefore be adduced to

establish the existence of those factual preconditions or prerequisites

(“subsidiary questions”)8 before the decision-maker can draw conclusions and

inferences from those facts, not only to determine the extent of its own

jurisdiction but also as to the merits of the particular matter before it. Most

importantly, the decision-maker must go on to decide whether the primary facts,

fully found, come within the statutory description “farmland” and that requires the

decision-maker to draw a conclusion or inference as to whether or not those facts

come within that description.9

In the NSW Court of Appeal decision of Londish v Knox Grammar School10 the

court, in an appeal for error of law from a decision of a judge of the NSW Land

and Environment Court NSW11 which was ultimately dismissed, was called upon

to judicially review the lawfulness of a development consent granted by a local

council to the school for a change of use of certain premises to a “boys' school

residential area”. An “educational establishment”, as defined in the relevantly

applicable environmental planning instrument12 was permissible on the subject

land with consent, but not a “boarding-house”, as defined in the instrument,

which was prohibited. Stein JA (Mason P and Meagher JA agreeing) stated:

In the circumstances of this case, it is apparent that the evidence and material before the council may have reasonably admitted to more than one conclusion. The decision reached by council to categorise the development as an “educational establishment” and not a “boarding house” was one which was reasonably open to

8 Hope v Bathurst City Council (1980) 144 CLR 1 at 3 per Gibbs and Stephen JJ.9 See, relevantly, Hope v Bathurst City Council (1980) 144 CLR 1 which dealt with the comparable, though differently worded, provision (viz the definition of “rural land”) as then contained in s 118(1) of the now repealed Local Government Act 1919 (NSW).10 (1997) 97 LGERA 1.11 Talbot J.12 The Ku-ring-gai Planning Scheme Ordinance.

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it to make and within its discretion. Accordingly, in my opinion the council's decision is not reviewable by the court.13

Although the approach taken by the Court of Appeal in this case is inconsistent

with more recent, including higher, authority,14 the case is still illustrative of the

often quite complex task involved when local councils and similar bodies are

called upon to determine whether the material facts about some proposed

development bring that development within one category or another.

Often, a case can involve many coalescing “layers” of fact. For example, assume

for the moment that the legislature has set up a special statutory tribunal to

determine the fair rent in respect of a “furnished dwelling-house”. Now, whether a

particular building is a dwelling-house, and whether it is furnished, are questions

of jurisdictional fact, because those facts must be established as conditions

precedent for the tribunal to exercise its jurisdiction. However, whether or not

there is a “furnished dwelling-house” (the ultimate question of fact) involves the

following questions of primary fact, all of which are logically interconnected on

the same level of observability and being:15

1. Is there a “structure” (that is, something built up of component parts)?16

2. If so, is there a structure in the nature of a “building” (a question of fat

and degree in each particular case)?17

13 (1997) 97 LGERA 1 at 8. See also Bentham v Kiama Council (1986) 59 LGRA 94 at 98.14 See, particularly, Timbarra Protection Coalition v Ross Mining NL (1999) 46 NSWLR 55; 102 LGERA 52; Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; Chambers v Maclean Shire Council (2003) 57 NSWLR 152; 126 LGERA 7.15 As John Anderson often pointed out, a fact can be explained only as following logically from other facts on the same level or order of observability and being.16 See R v Lowe (1954) 19 LGR (NSW) 348.17 In R v Lowe (1954) 19 LGR (NSW) 348 the NSW Court of Criminal Appeal appeared to treat the terms “building” and “structure” as synonymous. Nevertheless, in the majority of cases the courts generally approach the matter by asking whether the “structure” in question is of the type intended to be caught by the building/development control provisions of the relevantly applicable enactment. Essentially, it is a question of fact and degree in each particular case: see Lavy v London County Council [1895] 2 QB 577 in which it was held that what in any particular case amounts to a “building”, “structure” or “erection” is, not surprisingly, a question of fact. Thus, in Mulcahy v Blue Mountains City Council (1993) 81 LGERA 302 it was held that if words such as “structure” and “erect” were given their literal meaning (cf Lowe) the approval requirement would apply in a whole range of situations that were never envisaged and the administration of the

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3. If so, does the building comprise a “dwelling” (that is, “a room or suite

or suite of rooms occupied or used or so constructed or adapted as to be

capable of being occupied or used as a separate domicile”)?18

4. If so, and leaving aside what are known as dual occupancies, semi-

detached dwellings and the like for the moment, is the dwelling separate

from any other such dwelling such that it is a “dwelling-house” (that is, “a

building containing 1 but not more than 1 dwelling”)?19

5. If so, is the dwelling-house “furnished”?20

Facts need to be adduced to prove all of the above matters. The adduced facts

comprise what are known as the basic or primary facts (facta probantia), being

those basic facts that must be adduced to prove or disprove the ultimate question

of fact. Those basic or primary facts have been judicially described as being

“facts which are observed by witnesses and proved by oral testimony or facts

proved by the production of the things itself, such as original documents”.21

In Hayes v Federal Commissioner of Taxation22 Fullagar J said:

Where the factum probandum involves a term used in a statute, the question whether the accepted facta probantia establish that factum probandum will generally - so far as I can see, always - be a question of law.23

approvals process would become unworkable.18 See, relevantly, the definition of “dwelling” in cl 4(1) of the Environmental Planning and Assessment Model Provisions 1980 (NSW).19 See, relevantly, the definition of “dwelling-house” in cl 4(1) of the Environmental Planning and Assessment Model Provisions 1980 (NSW).20 Again, this is obviously a question of fact. However, there is, in fact, a wide divergence of judicial and other opinion as to the meaning to be given to the word “furniture”. What is presumably intended here is “whatever must be supplied to a house, a room, or the like, to make it habitable, convenient, or agreeable … whatever is added to the interior of a house … for use or convenience”: Black’s Law Dictionary 804 (4th ed rev 1968) (citing Bell’s Adm’x v Golding, 27 Ind 173 (1866)).21 British Launderers’ Research Association v Borough of Hendon Rating Authority [1949] 1 KB 462 at 471.22 (1956) 96 CLR 47.23 (1956) 96 CLR 47 at 51. See also Farmer v Cotton’s Trustees [1915] AC 922 at 932 per Lord Parker of Waddington; Federal Commissioner of Taxation v Broken Hill South Ltd (1941) 65 CLR 150 at 154 per Rich ACJ; Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47 at 51 per Fullagar J; Federal Commissioner of Taxation v Miller (1946) 73 CLR 93 at 97 per Latham CJ;

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An almost identical view was expressed by Lord Parker of Waddington in Farmer

v Cotton’s Trustees:24

… [W]here all the material facts are fully found, and the only question is whether the facts are such as to bring the case within the provisions properly construed of some statutory enactment, the question is one of law only.25

With respect, and regrettably, the matter is more complex than that. The

conclusion or inference as to whether or not primary facts, fully found, come

within a statutory description may involve either a question of fact or a question

of law. Hence, some judges have spoken in terms of there being a “mixed

question of law and fact”,26 but, with respect, the matter can usually be

satisfactorily resolved by “splitting” the matter into the separate but related

questions involved, some of which may be questions of fact and others questions

of law.27 Thus, in Hope v Bathurst City Council28 Mason J (with whom Gibbs,

Stephen, Murphy and Aickin JJ agreed) said:

The judgment of Kitto J in NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation [(1956) 94 CLR 309] is illuminating. Kitto J observed that the question whether certain operations answered the description "mining operations upon a mining property" within the meaning of s 122 of the Income Tax Assessment Act 1936, as amended, was a mixed question of law and fact

Griffiths v J P Harrison (Watford) Ltd [1963] AC 1 at 15 per Lord Reid; R v Barnet London Borough Council; Ex parte Nilish Shah [1983] 2 AC 309 at 341. See also Hope v Bathurst City Council (1980) 144 CLR 1 at 7 per Mason J with whom Gibbs, Stephen, Murphy and Aickin JJ agreed; Australian National Railways Commission v Collector of Customs (SA) (1985) 8 FCR 264 at 277 per Sheppard and Burchett JJ; cf Hope (1980) 144 CLR 1 at 8; Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 288.24 [1915] AC 922.25 [1915] AC 922 at 932. Federal Commissioner of Taxation v Broken Hill South Ltd (1941) 65 CLR 150 at 154 per Rich ACJ; Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47 at 51 per Fullagar J; Federal Commissioner of Taxation v Miller (1946) 73 CLR 93 at 97 per Latham CJ; Griffiths v J P Harrison (Watford) Ltd [1963] AC 1 at 15 per Lord Reid; R v Barnet London Borough Council; Ex parte Nilish Shah [1983] 2 AC 309 at 341. See also Hope v Bathurst City Council (1980) 144 CLR 1 at 7 per Mason J with whom Gibbs, Stephen, Murphy and Aickin JJ agreed; Australian National Railways Commission v Collector of Customs (SA) (1985) 8 FCR 264 at 277 per Sheppard and Burchett JJ; cf Hope (1980) 144 CLR 1 at 8; Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 288.26 See, eg, NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 309 at 511-2 per Kitto J.27 See Hope v Bathurst City Council (1980) 144 CLR 1 at 7-8 per Mason J with whom Gibbs, Stephen, Murphy and Aickin JJ agreed.28 (1980) 144 CLR 1.

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[(1956) 94 CLR, at pp 511-512]. He went on to explain why this was so: "First it is necessary to decide as a matter of law whether the Act uses the expressions 'mining operations' and 'mining property' in any other sense than that which they have in ordinary speech." Having answered this question in the negative, he noted that the "common understanding of the words has . . . to be determined" as "a question of fact". He continued [(1956) 94 CLR, at p 512]:

"The next question must be whether the material before the Court reasonably admits of different conclusions as to whether the appellant's operations fall within the ordinary meaning of the words as so determined; and that is a question of law (1941) 65 CLR, at p 155: see also per Isaacs and Rich JJ in Australian Slate Quarries Ltd v Federal Commissioner of Taxation (1923) 33 CLR 416, at p 419. If different conclusions are reasonably possible, it is necessary to decide which is the correct conclusion; and that is a question of fact: see per Williams J in the Broken Hill South Case [(1941) 65 CLR 150, at p 160]."29

As will be seen, we have, at the very least, these separate but interconnected

questions:

1. In what sense, legal or otherwise, does the statute use the

particular word or phrase (the “statutory description”)? That is a question

of law.30

2. If the legislative intention is that the word or phrase be given its

“ordinary” meaning, then the meaning of the word or phrase is a

question of fact.31 If, however, the legislative intention is that the word or

phrase be used in its technical “legal” sense, its meaning is a question of

law.32

29 Hope v Bathurst City Council (1980) 144 CLR 1 at 7-8.30 See NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509 at 511-2; Jedko Game Co v Collector of Customs (NSW) (1987) 12 ALD 491; Edwards v Bairstow [1956] AC 14; Brutus v Cozens [1973] AC 854; HTV v Prices Commission [1976] ICR 170.31 See Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60 at 78; Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126 at 137; Federal Commissioner of Taxation v Broken Hill South Ltd (1941) 65 CLR 150 at 155; NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509 at 512; Neal v Department of Transport (1980) 3 ALD 97 at 107-8; Jedko Game Co v Collector of Customs (NSW) (1987) 12 ALD 491; Bracegirdle v Oxley [1947] KB 349; Brutus v Cozens [1973] AC 854. See also Collector of Customs v Agfa Gavaert Limited (1996) 186 CLR 389.32 See Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126 at 137-8; Lombardo v Federal Commissioner of Taxation (1979) 40 FLR 208 at 215; Commissioners for Special Purposes of the Income Tax v Pemsel [1891] AC 531 at 580; Edwards v Bairstow [1956] AC 14.

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3. Does the material with respect to the primary facts reasonably

admit of different conclusions or inferences as to whether those facts

come within the ambit of the statutory description? Again, that is a

question of law.33

4. If the answer to Question 2 is yes, what is the “correct” conclusion?

That is a question of fact.34

5. If, however, the answer to Question 2 is no, a question of law is

involved, and, as will be seen, where only one conclusion or inference

can be drawn from a set of primary facts as to whether or not they come

within the ambit of a statutory description, in circumstances where a

contrary decision has been drawn by the original decision-maker, an

error with respect to a question of law (that is, an error of law) has been

committed by the original decision-maker.35

QUESTIONS OF FACT

"There are only facts, i.e., occurrences in space and time," wrote the realist

philosopher John Anderson.36 Be that as it may, what is a question of fact is, at

times, fraught with difficulties. We are know, perhaps intuitively, that facts rarely

speak for themselves, and invariably conclusions and inferences need to be

drawn from primary facts, not only for the purpose of making sense of those facts

33 See Australian Slate Quarries Ltd v Federal Commissioner of Taxation (1923) 33 CLR 416 at 419 per Isaacs and Rich JJ; Federal Commissioner of Taxation v Broken Hill South Ltd (1941) 65 CLR 150 at 155 per Starke J.34 A question of this kind is sometimes referred to as a question of “fact and degree”. See Federal Commissioner of Taxation v Broken Hill South Ltd (1941) 65 CLR 150 at 160 per William J; Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509 at 512; Edwards v Bairstow [1956] AC 14 at 33; ACT Construction Ltd v Customs and Excise Commissioners [1981] 1 WLR 1542 at 1547.35 See Hope v Bathurst City Council (1980) 144 CLR 1; Londish v Knox Grammar School (1997) 97 LGERA 1. According to Hope, an error of law occurs where there is an absence of primary evidence for the conclusion of fact reached in that primary facts, fully found, necessarily come within or outside the statutory description in circumstances where a contrary conclusion has been reached by the original decision-maker.36 Anderson J, "Empiricism", in Studies in Empirical Philosophy (Sydney: Angus & Robertson, 1962), p 14.

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but also, more importantly, for the purpose of ascertaining whether or not those

facts come within the ambit of some statutory description, which may take the

form of a word, a phrase, a definition, or whatever. We all know that, all too often,

different people can quite reasonably draw different conclusions and inferences

from the same set of objective facts. Yet, the real problem with subjectivism in

any form is that it presupposes objectivism, that is, the existence of an objective

world of hard-core facts which are “things themselves”. To quote Anderson

again:

We cannot … make any such distinction as between “things as we know them” and “things themselves”. Unless the former are things themselves, we are not entitled to speak of things (and hence to speak) at all.37

Nevertheless, the law does appear to recognize that, at least in practice, there is,

at times, a legally meaningful distinction to be made between “things as we know

them” and “things themselves” at least as regards the drawing of conclusions or

inferences from or as to primary facts as well as fact finding in respect of what

are essentially matters of opinion, policy or taste. Matters of the last mentioned

kind are not readily susceptible to review for error of law and, where mistakes

occur with respect to such matters, the errors are ordinarily treated as being

errors of fact and not law.38

However, Anderson does have a point. Even in statutes where the relevantly

applicable “test” to be applied, or “question” to be asked, by the original decision-

maker is subjective, as opposed to objective, in nature (eg where the decision-

maker is required to form the “opinion” or be “satisfied” that a person is “unfit”

before having jurisdiction to cancel or revoke that person’s licence), the fact that

the decision-maker forms the opinion or is satisfied that the required state of

affairs (that is, “unfitness” on the part of the person, which is the ultimate

37 Anderson J, "Empiricism", in Studies in Empirical Philosophy (Sydney: Angus & Robertson, 1962), p 13.38 See Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194.

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question of fact) exists does not logically imply anything intrinsic to that state of

affairs itself, for nothing is constituted by the relations it has to other things.39

In other words, if the decision-maker specifies something only by the relations it

has to itself or other things (eg person X is “unfit” because I consider person X to

be “unfit” or because person x has acted in the manner Y), we know nothing

about the thing itself that is, whether or not person X is “unfit”, and what is meant

by an “unfit” person). The fact that the decision-maker considers some person to

be “unfit” does not logically imply anything intrinsic to the state of affairs itself nor

does it tell us anything about that state of affairs. To use the fact of the state of

affairs being considered to exist as a determinant or an indication of the

existence of that state of affairs, independent information (in the form of

materially relevant facts) is needed about the sorts of things that enter into the

particular relation, even allowing for the fact that the jurisdictional test is

subjective in nature40 and that what is involved is a special or “particular kind of

jurisdictional fact”41 situation.

So, one or more questions of fact always arise at some point or points in the

decision-making process, and, no matter how complex, those questions are

decidable, and verifiable or falsifiable, once the necessary criteria have been laid

down and the terms of the relevantly applicable legislation are properly

construed. Even an “opinion” or a “state of satisfaction”, if that be the relevant

statutory test, can be said to be “wrong”, admittedly in law, where, for example,

the opinion or state of satisfaction is not capable of being formed by a reasonable

person or is otherwise formed arbitrarily, capriciously, irrationally or by taking into

39 See Anderson J, "Realism and Some of its Critics", in Studies in Empirical Philosophy (Sydney: Angus & Robertson, 1962) in which Anderson wrote, at p 42, that “the thing which is known, or the ‘object’, is not constituted by the knower or by being known, nor is the thing which knows, or ‘subject’, constituted by knowing or by the known” [original emphasis].40 See R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 in which, although a subjective test of “unfitness” was contained in the relevant legislation, the High Court, after considering what the word “unfitness” connoted, was still able to hold on the facts of the particular case that there were no objective grounds for saying that the particular employer was “unfit”.41 See Timbarra Protection Coalition v Ross Mining NL (1999) 46 NSWLR 55 at 64 [42].

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account irrelevant considerations.42 At the end of the day, opinions and states of

satisfaction are formed with respect to actual or assumed facts.

Now, with due regard to what have otherwise been held to be questions of law,

the following have been held to be or otherwise involve questions of fact:

a finding of fact43 – thus, the following have been held by the NSW Court

of Appeal44 to involve only an error of fact, at least as regards “primary” as

opposed to “ultimate” questions of fact:

o a “wrong” finding of fact,45

o a “perverse” finding of fact,

o a finding of fact “contrary to the overwhelming weight of the

evidence”,

o a finding of fact “against the evidence and the weight of the

evidence”,

o a finding of fact that “ignores the probative force of the evidence

which is all one way”,

o a finding of fact that “no reasonable person could have made”,

as well as “demonstrably unsound” reasoning at least as regards the

reasoning by which the original decision-maker arrived at the finding of

fact46

42 See R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 430, 432.43 The determination of the existence of primary facts by evidence is a question of fact: see Bracegirdle v Oxley [1971] KB 349 at 358. 44 See Azzopardi v Tasman UEB Industries Ltd [1985] 4 NSWLR 139.45 There is no error of law simply in making a wrong finding of fact: see Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194.46 See Azzopardi v Tasman UEB Industries Ltd [1985] 4 NSWLR 139 at 155-6 per Glass JA (Samuels JA agreeing); Mahony v Industrial Registrar of New South Wales (1986) 8 NSWLR 1; Haines v Leves (1987) 8 NSWLR 442. However, the making of findings (at least as regards matters of ultimate fact) or the drawing of conclusions or inferences in the absence of evidence is an error of law: see Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473; Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194; cf Azzopardi.

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the drawing of a conclusion or an inference from or as to a primary fact,

but only if rightly directed in law including correctly understanding the

statutory language (in which case it is a conclusion or an inference of fact

only)47

whether primary facts, fully found, come within the ambit of a statutory

description in circumstances where divergent conclusions or inferences

can, on the evidence, reasonably be drawn as to whether or not those

facts come within the ambit of a statutory description (at least in

circumstances where the statute uses the words comprising the statutory

description according to their ordinary meaning)48

whether evidence ought to be accepted,49 and

the “ordinary” (that is, everyday or common understanding) meaning of a

word or phrase in the English language,50 or its non-legal technical

meaning, where the legislative intention is that the word or phrase be

given its “ordinary” or non-legal technical meaning as the case may be,51

47 See Edwards v Bairstow [1956] AC 14. Whether conclusions or inferences as to primary facts can reasonably be drawn on the evidence is a question of law: see Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126 and Edwards v Bairstow [1956] AC 14.48 See NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509 at 512; Hope v Bathurst City Council (1980) 144 CLR 1 at 8; Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 288; Edwards v Bairstow [1956] AC 14 at 33; Brutus v Cozens [1973] AC 854; ACT Construction Ltd v Customs and Excise Commissioners [1981] 1 WLR 1542 at 1547; cf Farmer v Cotton’s Trustees [1915] AC 922 at 932 per Lord Parker of Waddington; Federal Commissioner of Taxation v Broken Hill South Ltd (1941) 65 CLR 150 at 154 per Rich ACJ; Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47 at 51 per Fullagar J; Federal Commissioner of Taxation v Miller (1946) 73 CLR 93 at 97 per Latham CJ; Griffiths v J P Harrison (Watford) Ltd [1963] AC 1 at 15 per Lord Reid. 49 See Azzopardi v Tasman UEB Industries Ltd [1985] 4 NSWLR 139. 50 That is, a word or phrase the meaning of which is commonly understood. See Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126 at 137; Federal Commissioner of Taxation v Broken Hill South Ltd (1941) 65 CLR 150 at 155; Bracegirdle v Oxley [1947] KB 349; Brutus v Cozens [1973] AC 854. For example, in the Broken Hill South case it was held that the common understanding of the words “mining operations”, where appearing in the Income Tax Assessment Act 1936 (Cth), was a question of fact.51 See Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60 at 78; Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126 at 137; Federal Commissioner of Taxation v Broken Hill South Ltd (1941) 65 CLR 150 at 155; NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509 at 512; Neal v Department of Transport (1980) 3 ALD 97 at 107-8; Jedko Game Co v Collector of Customs (NSW) (1987) 12 ALD 491; Bracegirdle v Oxley [1947] KB 349; Brutus v Cozens [1973] AC 854. See also Collector of Customs v Agfa Gavaert Limited (1996) 186 CLR 389.

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as well as the meaning of a word or phrase the meaning of which is a

matter of degree.52

As regards the range of matters listed in the first and second dot points above, at

least as regards findings of primary fact and the drawing of conclusions or

inferences from those facts, the courts are generally very slow to interfere with

erroneous findings, conclusions or inferences,53 and where the drawing of a

conclusion or an inference involves a question of degree upon which reasonable

persons may differ, the conclusion or inference is ordinarily said to be one of fact

and not of law.54

The judicial authorities are disharmonious on the very important matter referred

to in the third dot point above, namely, whether primary facts, fully found, come

within the ambit of a statutory description is a question of fact or one of law.

However, in most of the cases in which that question has been held to be one of

law, the court appeared to be satisfied that only one conclusion could be drawn

from the primary facts, fully found, as to whether or not those facts came within

the ambit of a statutory description in circumstances where the original decision-

maker had come to a contrary conclusion, and it is on that basis that one can

resolve much of the conflict in the judicial authorities.55 Other “question of law”

cases can be resolved on the basis that the statute appeared to use the words

comprising the statutory description in a sense other than their ordinary

meaning.56

52 See Bracegirdle v Oxley [1947] KB 349 at 358; Federal Commissioner of Taxation v Miller (1946) 73 CLR 93 at 101, 103-4.53 See Bendles Motors Ltd v Bristol Corporation [1963] 1 WLR 247 and Azzopardi v Tasman UEB Industries Ltd [1985] 4 NSWLR 139.54 See Federal Commissioner of Taxation v Miller (1946) 73 CLR 93; Bendles Motors Ltd v Bristol Corporation [1963] 1 WLR 247.55 Farmer v Cotton’s Trustees [1915] AC 922 at 932 per Lord Parker of Waddington; Federal Commissioner of Taxation v Broken Hill South Ltd (1941) 65 CLR 150 at 154 per Rich ACJ; Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47 at 51 per Fullagar J; Federal Commissioner of Taxation v Miller (1946) 73 CLR 93 at 97 per Latham CJ; Griffiths v J P Harrison (Watford) Ltd [1963] AC 1 at 15 per Lord Reid.56 See, eg, Edwards v Bairstow [1956] AC 14.

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The following are highly likely to be questions of fact, but much will depend upon

the circumstances of the particular case:

a question on which reasonable persons could quite reasonably arrive at

divergent conclusions57

a question which the original decision-maker is “peculiarly fitted to

decide”58 or one in respect of which the reviewing court would find it very

difficult to form an independent opinion without hearing all of the

evidence.59

QUESTIONS OF LAW

In the absence of a statutory right of appeal for errors of all kinds, an error of fact

is unreviewable under the general law, unless the fact be a “jurisdictional fact” in

which case the error made is not one of fact in any event. At common law, only

errors of law are potentially reviewable, and ordinarily only those that are

adjudged to be “jurisdictional”.60

However, as Hotop has aptly noted, “because the precise distinction between

questions of fact and questions of law is far from clear, the courts are able to affix

the labels ‘law’ or ‘fact’ in accordance with their inclination or disinclination to

intervene”.61 Furthermore, as the present author has elsewhere pointed out,

when it comes to jurisdictional error Australian superior courts “can categorise

virtually every error of law as jurisdictional and intervene and strike down any

57 See Federal Commissioner of Taxation v Miller (1946) 73 CLR 93.58 Federal Commissioner of Taxation v Broken Hill South Ltd (1941) 65 CLR 150 at 159 per McTiernan J.59 De Smith SA, Constitutional and Administrative Law (Penguin Books, 1971), p 556.60 This is subject to the grounds of judicial review known as error of law on the face of the record (if it be available) as well as the doctrine of extended jurisdictional error which deems all errors of law to be jurisdictional and therefore reviewable. See Ellis-Jones I, “The Anisminic Doctrine of Extended Jurisdictional Error in New South Wales Superior Courts” (2007) 12 LGLJ 164.61 Hotop SD, Principles of Australian Administrative Law, 6th ed (Sydney: Law Book Company, 1985), p 253. See also Emery CT and Smythe B, “Error of Law in Administrative Law” (1984) 100 LGR 612.

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exercise or purported exercise of power which they deem to be an abuse of

power”.62

Be that as it may, and with due regard to what have otherwise been held to be

questions of fact, the following have been held to be or otherwise involve

questions of law:

“pure” questions of statutory interpretation including but not limited to the

sense, legal or otherwise, in which a statute uses a particular word or

phrase,63 and the determination of whether or not a phrase in a statute is a

composite phrase64

the meaning of a word or phrase in a statute where that word or phrase is

used in a technical “legal” sense or in circumstances where the

determination of the matter requires legal training65

the effect or construction of a word or phrase in a statute whose meaning

or interpretation is established66

whether the original decision-maker has misdirected itself in law including

but not limited to having defined otherwise than in accordance with law the

62 Ellis-Jones I, The Anisminic Revolution in Australian Administrative Law (Sydney: Local Legal, 1998), p 118.63 See NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509 at 511-2; Jedko Game Co v Collector of Customs (NSW) (1987) 12 ALD 491; Edwards v Bairstow [1956] AC 14; Brutus v Cozens [1973] AC 854; HTV v Prices Commission [1976] ICR 170.64 See Collector of Customs v Agfa Gavaert Limited (1996) 186 CLR 389 at 397 per Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ.65 See Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126 at 137-8; Ex parte Tooth & Co Ltd; Re Sydney City Council (1962) 80 WN (NSW) 572; Lombardo v Federal Commissioner of Taxation (1979) 40 FLR 208 at 215; Commissioners for Special Purposes of the Income Tax v Pemsel [1891] AC 531 at 580; British Launderers’ Research Association v Hendon Borough Rating Authority [1949] 1 KB 462; Edwards v Bairstow [1956] AC 14. In Ex parte Tooth & Co Ltd the meaning of the phrase “in the same ownership” in s 309(2) of the now repealed Local Government Act 1919 (NSW) was held to be a question of law. Similarly, in the last mentioned case the House of Lords held that the meaning to be given to the words in the phrase “trade, manufacture, adventure or concern in the nature of trade” in the Income Tax Act 1918 was a question of law, having regard to its context and “the principles which [the courts] bring to bear upon the meaning of income”.66 See Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60 at 79.

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question of fact to be answered (but only as regards “ultimate” as opposed

to “primary” findings of fact)67

the drawing of a conclusion or an inference from or as to a primary fact,

but only where not rightly directed in law including but not limited to

incorrectly understanding or otherwise misinterpreting the statutory

language (otherwise it is a conclusion or an inference of fact only)68

whether conclusions or inferences from or as to primary facts are, on the

evidence, capable of being drawn or can reasonably be drawn69

the existence or non-existence of a jurisdictional fact70

whether primary facts, fully found, come within the ambit of a statutory

description, in circumstances where:

o the statute uses the words comprising the statutory description in a

sense other than their ordinary meaning,71 or

o only one conclusion can be drawn from a set of primary facts, as to

whether or not they come within the ambit of a statutory description,

in circumstances where a contrary decision has been drawn by the

original decision-maker72

67 See Azzopardi v Tasman UEB Industries Ltd [1985] 4 NSWLR 139 at 156 per Glass JA (Samuels JA agreeing).68 See Edwards v Bairstow [1956] AC 14. In that case, it was held that a finding that a particular transaction was not an “adventure … in the nature of trade” was an inference of fact. No question or error of law was or could be involved provided the tribunal of fact was rightly directed in law.69 See Hope v Bathurst City Council (1980) 144 CLR 1; Blackwood Hodge (Australia) Pty Ltd v Collector of Customs (NSW) (1980) 47 FLR 131; Edwards v Bairstow [1956] AC 14; Griffiths v J P Harrison (Waterford) Ltd [1963] AC 1 at 19; Ashbridge Investments Ltd v Minister of Housing and Local Government [1965] 1 WLR 1320 at 1326.70 See, eg, Timbarra Protection Coalition v Ross Mining NL (1999) 46 NSWLR 55; 102 LGERA 52; Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; Chambers v Maclean Shire Council (2003) 57 NSWLR 152; 126 LGERA 7.71 See Hope v Bathurst City Council (1980) 144 CLR 1 at 8; Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 288. See also Collector of Customs v Agfa Gavaert Limited (1996) 186 CLR 389.72 See Hope v Bathurst City Council (1980) 144 CLR 1 and Londish v Knox Grammar School (1997) 97 LGERA 1. According to Hope, an error of law occurs where there is an absence of primary evidence for the conclusion of fact reached in that primary facts, fully found, necessarily come within or outside the statutory description in circumstances where a contrary conclusion has been reached by the original decision-maker.

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whether primary facts, fully found, are capable of coming within the ambit

of a statutory description,73 including:

o whether the evidence reasonably admits of different conclusions or

inferences as to whether the primary facts come within the ambit of

the statutory description (rightly construed),74 and

o whether a conclusion or an inference that primary facts, fully found,

come within the ambit of a statutory description could reasonably

be drawn,75

the reason being that, before a conclusion or inference is or can be drawn,

there is the preliminary or threshold question of whether the evidence

reasonably admits of different conclusions,76

whether there is evidence of a particular fact,77 whether the evidence

reasonably admits of different conclusions,78 and whether the evidence is

insufficient to prove a fact,79 and

whether the original decision is one that could reasonably have been

made on the evidence adduced.80

73 See Federal Commissioner of Taxation v Miller (1946) 73 CLR 93 at 104 per Dixon J.74 See NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 309 at 512 per Kitto J. See also Australian Slate Quarries Ltd v Federal Commissioner of Taxation (1923) 33 CLR 416 at 419 per Isaacs and Rich JJ.75 See Hope v Bathurst City Council (1980) 144 CLR 1 and Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126.76 See Federal Commissioner of Taxation v Broken Hill South Ltd (1941) 65 CLR 150.77 See Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126.78 See Azzopardi v Tasman UEB Industries Ltd [1985] 4 NSWLR 139.79 See Azzopardi v Tasman UEB Industries Ltd [1985] 4 NSWLR 139. However, alleged sufficiency of evidence to the point of conclusiveness cannot amount to an error of law. Furthermore, whether evidence ought to be accepted in whole or in part is a question of fact. Azzopardi.80 See Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126, Ashbridge Investments Ltd v Minister of Housing and Local Government [1965] 1 WLR 1320 and Federal Commissioner of Taxation v Pechey (1975) 5 ALR 352. On the basis of the NSW Court of Appeal majority decision in Azzopardi v Tasman UEB Industries Ltd [1985] 4 NSWLR 139 erroneous reception of evidence will amount to error of law, but the original decision will not be upset unless there has been a “substantial wrong or miscarriage”. Also, the question whether the law, correctly stated, has been applied to the facts in such a way as has produced a conclusion “not reasonably open” is probably not a question of law: Azzopardi at 150 per Kirby P and 157 per Glass JA (Samuels JA agreeing).

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Insofar as the matter referred to in the third dot point is concerned, namely, the

effect or construction - as opposed to meaning - of a statutory description whose

meaning or interpretation is established, that has been said to be a question of

law. In that regard, Isaacs J in Life Insurance Co of Australia Ltd v Phillips81 said:

Very different consequences attach according as the ambiguity rests in construction or in interpretation. Lindley LJ in Chatenay v Brazilian Submarine Telegraph Company [[1891] 1 QB 79 at 85] employs the same word “construction” for both ideas, but keeps the ideas distinct. He says:- “The expression 'construction,' as applied to a document, at all events as used by English lawyers, includes two things: first, the meaning of the words; and, secondly, their legal effect, or the effect which is to be given to them. The meaning of the words I take to be a question of fact in all cases, whether we are dealing with a poem or a legal document. The effect of the words is a question of law.” The “meaning of the words” is what I call interpretation, whether the words to be interpreted into ordinary English are foreign words or code words or trade words or mere signs or even ordinary English words which on examination of surrounding circumstances turn out to be incomplete. Their effect when translated into complete English is construction. If that distinction be borne in mind very little difficulty remains.82

More recently, the High Court has called the purported distinction between

“meaning” or “interpretation” (supposedly a question of fact, at least where a

word is used in its ordinary sense) and “effect” or “construction” (supposedly a

question of law) as “artificial, if not illusory”83 especially where, as in the particular

case before the court, there was the issue of whether or not a word or phrase

was used in a trade or technical sense as opposed to having its ordinary

meaning.84 The court went on to say:

81 (1925) 36 CLR 60.82 (1925) 36 CLR 60 at 78.83 See Collector of Customs v Agfa Gavaert Limited (1996) 186 CLR 389 at 396 per Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ.84 See Herbert Adams Pty Ltd v Federal Commissioner of Taxation (1932) 47 CLR 222 at 227 and Collector of Customs v Bell Basic Industries (1988) 20 FCR 146 157-8 as regards the construction of revenue statutes that utilize trade or technical terms wherein there is said to be a presumption in favour of a trade or technical meaning. However, in Collector of Customs v Agfa Gavaert Limited (1996) 186 CLR 389 at 399 the court, citing D & R Henderson v Collector of Customs for NSW (1974) 48 ALJR 132 and Bell Basic Industries, stated that any such presumption did not prevent words used in a revenue statute directed to commerce being understood in their ordinary meaning. Also, trade meaning and ordinary meaning “do not necessarily stand at opposite extremities of the interpretative register”, and a composite phrase may well have an ordinary meaning even though it contains a trade or technical term: Agfa Gavaert at 401.

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The meaning attributed to individual words in a phrase ultimately dictates the effect or construction that one gives to the phrase when taken as a whole and the approach that one adopts in determining the meaning of the individual words of that phrase is bound up in the syntactical construction of the phrase in question.85

As regards the matter referred to in the sixth dot point above, namely, whether

conclusions or inferences from or as to primary facts can reasonably be drawn

on the evidence, it would seem that so long as there is some basis for the

conclusion or inference of fact there is no error of law.86 However, the making of

findings or the drawing of conclusions or inferences in the absence of evidence

or not supported by any reasonable view of the findings of primary fact having

regard to the evidence,87 or in circumstances where the tribunal has otherwise

misdirected itself, is an error of law.88

As already mentioned, some judges (eg Kitto J in NSW Associated Blue-Metal

Quarries Ltd v Federal Commissioner of Taxation)89 have spoken, rather

unhelpfully, in terms of a “mixed question of fact and law”, but the majority of

such instances can satisfactorily be resolved by splitting into 2 or more separate

questions the issues involved, particularly, the sense in which the statute uses

the particular word or phrase (a question of law), the meaning of the word or

phrase (which could be a question of fact or law), the question of whether the

primary fact, fully found, come within the statutory description (which, again,

could be a question of fact or law), and the question whether those facts are

capable of coming within that description (a question of law).90

CONCLUSION

85 Collector of Customs v Agfa Gavaert Limited (1996) 186 CLR 389 at 396-7 per Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ.86 See Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.87 Cf Azzopardi v Tasman UEB Industries Ltd [1985] 4 NSWLR 139.88 See Sinclair v Mining Warden at Maryborough (1975) (1975) 132 CLR 473, and Bracegirdle v Oxley [1947] KB 349 per Denning LJ whose judgment tends to establish that conclusions from primary facts are “sometimes conclusions of fact and sometimes conclusions of law”. 89 (1956) 94 CLR 509.90 See, eg, Federal Commissioner of Taxation v Miller (1946) 73 CLR 93 at 104 per Dixon J.

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The fact/law distinction will always be with us for so long as reviewing courts

seek to make a distinction between “matters within jurisdiction” (that is, matters

that are non-reviewable) and “matters outside jurisdiction” (that is, matters that

are reviewable), and also for so long as legislatures wish to confine statutory

rights of appeal to only errors of law.

Although there no test of universal application has as yet been formulated by

Australian superior courts, seminal cases such as NSW Associated Blue-Metal

Quarries Ltd v Federal Commissioner of Taxation,91 Hope v Bathurst City

Council92 and Azzopardi v Tasman UEB Industries Ltd93 have, to a very large

extent, resolved much of the confusion which previously existed. However, the

fact remains - and it is a fact - that reviewing courts still have the ability to

massage what otherwise would be an unreviewable question of fact into a

reviewable question of law except perhaps as regards “pure” questions of fact

finding with respect to primary facts where nothing else is involved that might

otherwise give rise to a question of law,94 in which case it truly may be said,

“neither was there any error or fault found”.95

91 (1956) 94 CLR 309.92 (1980) 144 CLR 1.93 [1985] 4 NSWLR 139.94 See Azzopardi v Tasman UEB Industries Ltd [1985] 4 NSWLR 139 at 155-6 per Glass JA (Samuels JA agreeing).95 Daniel 6:4 (AV).

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