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Crown Solicitor's Office

Following the rules: complying with the legal principles of a "question of law" when commencing an appeal

Rashelle Seiden, Senior Counsel, Ground Floor Wentworth Chambers

An extract from a seminar dated 11 March 2015

Why does it matter?

The jurisdiction to appeal a decision of a tribunal to a court is generally founded on there being a question of law – for example see s. 44 of the AAT Act in respect of an appeal from the AAT to the Federal Court and s. 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT ACT") in respect of an appeal from NCAT to the Supreme Court. Further, s. 80(2) of the NCAT Act says that an internal appeal of a first instance decision may be made to the Appeal Panel as of right on any question of law or otherwise with leave.

At common law, availability of certain administrative law remedies required an error of law (which is related to a question of law) to be demonstrated. The Administrative Decisions Judicial Review Act 1977 (Cth) ("ADJR")provides an extended range of grounds for granting a remedy in addition to an error of law.

In Ferella v CCSR [2014] NSWCA 378 (read decision on NSW Caselaw) the Court of Appeal has recently had cause to look at the importance of questions of law in relation to appeals from a decision of the Appeal Panel of NCAT.  Their Honours said that whether a question of law arises depends on its context and that one must take a pragmatic approach but the question of law itself is the subject matter of the appeal and unless it can be articulated precisely, no appeal lies.

What have the courts said?

In trying to apply the distinction between a question of law and a question of fact there is often quite some difficulty.  The distinction is "not always easy and it could well be included with the capital revenue distinction in the class of categories of meaningless reference" (Nzich v FCT (1991) 22 ATR 438 at 444 per French J).  Professor Aronson in Judicial Review of Administrative Action has described the concept as "slippery, elusive, too easily manipulated, sterile and technical and something which can generate artificial if not illusory distinctions", yet courts grapple with it daily.

The response of some litigants has been to put the words "whether" and "erred" in the same sentence to articulate a question of law but that doesn't fool the judiciary. If a question of law were to be posed as:

 "Whether, on the evidence before the Tribunal, the Tribunal erred in the construction and application [of a statutory provision]?"

Jennifer Batrouney QC suggests ("The distinction between questions of fact and questions of law in section 44 appeals to the Federal Court", presentation to the Tax Bar Association, 2014) that it should be struck down on the ground that questions such as that:

"are, at best, expressed as a broad inquiry about the construction provisions which for that reason fail to identify questions of law to enliven the jurisdiction conferred by s. 44 of the AAT Act; at worst they seek to engage in merits review under the guise of an unfocussed inquiry by a generalised contention that the facts could not have led to the decision which was reached".

Sometimes the concepts of questions of law and errors of law may align but the former is generally regarded to be broader than the latter; the latter is associated with the grant of a remedy whilst the former is associated with the right to approach the Court or Tribunal. If the response to an enquiry is that an error of law has been made then it is usually fairly safe to characterise the enquiry as having posed a valid question of law.  However where the response is that no error of law has been made, this does not necessarily disqualify the enquiry from having posed a valid question of law.

There is a practical pragmatic approach to identifying whether there is a question of law. One always needs to look at the context and consider the range of circumstances that may give rise to questions of law which are closely linked to various errors of law; such as:

  • where the conclusion reached by the decision maker is affected by some mistake of law;
  • where the decision maker does not address the correct question;
  • where the decision maker has fettered its discretion or taken into account an irrelevant consideration or ignored a relevant consideration;
  • where a decision is illogical or irrational;
  • where the decision maker acts in bad faith or for an improper purpose.

An irrelevant consideration is one which the decision maker is bound not to take into account and a relevant consideration is one that he/she was bound to take into account. Whether a decision is illogical or irrational has been explored in Minister for Immigration and Citizenship v Li [2013] HCA 18. That case expands what is understood as "Wednesbury unreasonableness" (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223). Acting in bad faith or for improper purpose invites both an error of law and a question of law as does a failure to give reasons.

Jurisdictional error

This is a special species of error of law where the decision maker purports to make a decision outside its authority or refrains from making a decision within its authority which it is obliged to make.

This brings us back to the problem: what is a question of law – the following cases are quite helpful in determining this question:

Allan J Heasman Pty Ltd v FCT [2014] FCA 1282

This case confirms that the question of law is the subject matter of the appeal.

An appeal from the AAT to the Federal Court lies only for a question of law. This case concerned whether a notice of assessment of income tax was valid and her Honour Jagot J was looking at whether questions of law were raised. Her Honour held that whether the assessment was valid was an irrelevancy and therefore even had it raised a question of law it wasn't one that arose in the appeal.

This reminds us that when jurisdiction is given to appeal on a question of law the question of law is the subject matter of the appeal and it is not merely a qualifying condition to get you through the gate: it is the substance of the appeal.

How does one identify a question of law?

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 ("Pozzolanic")

The Full Federal Court set out five propositions (and two qualifications):

Proposition one

  • When you are considering whether a word or a phrase in a statute is to be given its ordinary meaning or whether it is to be given some technical meaning, then that process raises a question of law.

Proposition two

  • If a word has its ordinary meaning, then what that word means will be a question of fact. The ordinary meaning of a word or its non-legal technical meaning is a question of fact.

Proposition three

  • The meaning of a technical term is a question of law – but recall that whether it has an ordinary meaning or a technical meaning is also a question of law.

Proposition four

  • The effect or construction of a term whose meaning or interpretation is established is a question of law. For instance, if a process of construction of the Act is required in order to work it out or if there is real uncertainty or if the word is not being used in its usual sense a question of law arises. Whenever there is a process of construction of a statute which requires looking at its context, its purpose, ascertaining the statute's meaning raises questions of law. The difference (or similarity) between proposition two and proposition four has been discussed by the High Court (see later).

Proposition five

  • The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law. The Full Court in Pozzolanic qualified proposition five and limited it to situations where the undisputed facts fall necessarily in or necessarily out of the statutory provision. Justice Hill in Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6 at p. 16, explained why: –

"The confusion comes about because there are actually two related rules, the distinction between which is not always readily apparent. The first of these rules is generally expressed as being that where the facts have been fully found or there is no dispute as to the facts and the question is whether those facts necessarily fall within the description of a word or phrase in a statute, that will be a question of law…… The second related principle is that where the facts found are capable of falling within or without the description used in the statute, the decision which side of the line they fall on will be a decision of fact and not law. Such a decision will generally involve weight being given to one or other element of the facts and so involve matters of degree."

  • There is a second qualification – where the range of the Act is in question one is looking at construing the statute. The facts as found might fit within the statutory provision depending on the range of the statutory provision. This is not a question of weight but a question of construction of the statute (Pozzolanic at 289).

 "The range of relationships to which the words apply for the purposes of the Act depend upon a judgment about that purpose. In the end this is not a process of fact finding, the facts are found. What is left is a value judgment about the range of the Act and that is a question of law".

Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389

The five Pozzolanic propositions have limitations on their use:

"Such general expositions of the law are helpful in many circumstances. But they lose a degree of their utility when, as in the present case, the phrase or term in issue is complex or the inquiry that the primary decision-maker embarked upon is not clear" (at 396).

The complaint with Pozzolanic was with the second and fourth propositions in respect of which the High Court said that the distinction between the two seems:

 "….artificial if not illusory.  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." (at [396-397])

"… it is difficult to see how meaning is a question of fact while construction is a question of law without insisting on some qualification concerning construction that is currently absent …" (at [397]) and vice versa.

Screen Australia v EME Productions No 1 Pty Ltd (2012) 200 FCR 282

Screen Australia exemplifies the difficulty in distinguishing between meaning and construction. The tribunal had looked at a particular word and had in its reasoning identified that it was simply giving the word its ordinary meaning and that it had applied the second Pozzolanic proposition. The Full Court held that in fact the tribunal hadn't done that – they had applied the first proposition which is: should this word be given an ordinary meaning or a technical one? Then the tribunal applied the second and fourth principles to work out what the ordinary meaning was. The meaning reached by the tribunal was not its ordinary meaning, the process of construction that it employed was a process of law and it wasn't directed to the question of fact, the simple question of fact – what does this word or phrase mean? And whilst it was an error for the tribunal to have described its process in the way that it had described it, its approach was in fact orthodox which revealed that a question of law had arisen.


The identification of the distinction between a question of fact and a question law is essential for enlivening appeal and other rights. It is important to be aware of the requirement for there to be a question of law and to be aware of the distinction between a question of law and question of fact.


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