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[2] If the distinction depends on the context, it follows that philosophical[4] distinctions are as likely to distract as to assist. Some of the jurisprudential literature starts out confidently enough, with definitions of law and fact. A question of fact involves an inquiry into whether something happened or will happen, and is quite separate from any assertion as to its legal effect.[5] A question of law involves the identification and interpretation of a norm which is usually of general application. That distinction quickly becomes blurred, however, by the difficulties of classifying the interactions between norm and fact. The difficulties in classifying the application of law to the facts as found occupy the bulk of this article. However, there are further difficulties in classifying the processes leading up to the finding of facts.
[3] Fact-finding inevitably involves a prior knowledge of which facts might be legally relevant. We cannot know which facts to look for unless we know why we are looking, and it is the law which tells us that. The law also requires the conversion of doubts, uncertainties and hidden or explicit assumptions as to how the world works into positive findings of fact.[6] For example, a finding in a contract dispute that promises were probably exchanged becomes a finding that they were exchanged, because the legal process itself helps reduce highly contingent factual possibilities into relatively straightforward factual propositions before declaring the legal result.[7] Furthermore, in any practical or moral sense, no court could contemplate finding the facts without having some idea of the possible legal consequences of a finding one way or the other. Those consequences, therefore, set the level of persuasion for the fact finder in every case.[8]
[4] The contingent nature of the process leading to a seemingly straightforward finding of facts is sometimes matched by the equally contingent process of finding the law.[9] The issues raised by the choices offered between legal rules, or different versions or interpretations of legal rules, are fairly clearly questions of law themselves. However, the ability to choose between competing rules or formulations of rules is often a product of the degree of specificity or generality with which the facts may have been found. None of this is intended as an argument for fact scepticism,[10] or for dismissing the law-fact distinction as a philosophical illusion or lawyer’s charade.[11] It does, however, point to the distinct possibility that for legal purposes, questions of fact can contain elements of law.
[5] Causation, for example, is a question of fact in
negligence, even though it may require a selection between causal conditions
according to value judgments and policy factors, for the purpose of attributing
legal responsibility.[12] Some of
those policy choices clearly have legal elements to
them.[13] Causation is also a
question of fact in the law of obligations in calculating losses, although the
same caveat as to policy content
applies.[14] Causation may have a
different meaning for the purposes of determining refugee status, but once
again, this is because refugee law
has its own legal, factual and policy
contexts, and once again, it is still a question of
fact.[15] If one can take
causation’s policy elements as including legal questions, the net result
is that causation can become a question of law when a court limited to
such questions wishes to lay down legal parameters to guide the tribunal of
fact; hence
the large number of appellate decisions on an issue bearing the
overall classification of a question of
fact.[16]
[7] Causation and reasonable care, therefore, can be both fact and law, depending on context. They arise in contexts where a court has to assess what happened and why, and what ought to have happened and who should be responsible for not having brought that about. So far as reasonableness is relevant, it is relevant to the act of judging the legal outcome of acts or conduct, rather than the acceptability of an official decision. In that context, an unreasonable want of care, for example, takes the defendant’s balance of precaution and risk beyond the realm where the court merely disagrees with it, to the realm where the court concludes that there is no room for reasonable minds to differ as to what should have been done. The reasonableness standard, therefore, is premised on the notion of relative autonomy. In negligence, it is the relative autonomy of defendants to judge for themselves how to act. The autonomy is relative, because the transition from reasonable to unreasonable marks the crossing of the boundary from judicial abstention to intervention.
[8] The reasonableness standard performs a similar function in the law of judicial review, but it is more difficult to explain or justify in that context. Judicial review consistently denies review on the merits, which is a matter left for the judgment or discretion of the bureaucrat or agency concerned. All of the judicial review grounds emphasise the relative autonomy of the bureaucracy. Provided bureaucrats do the job which Parliament has given them, it is not the role of judicial review to intervene simply because the court might have viewed the facts differently or preferred a different outcome. Legality and merits are strictly separate. Review for so-called Wednesbury[21] unreasonableness, however, challenges the dividing line between merits and legality, because its trigger is the poor quality of the bureaucratic decision. It has, for that reason, been the subject of considerable debate and uncertainty. Many cases say that the unreasonableness has to be extreme.[22] They have yet to say that it should also be obvious. Unless they take that extra step, Wednesbury will require courts to follow counsel for the challenger through the minutiae of the impugned decision.[23]
[9] As originally formulated in the Wednesbury case itself,[24] a bureaucratic decision was reviewable if it was so unreasonable that no reasonable bureaucrat similarly placed would have made the same decision. As with the reasonableness standard in medical negligence cases, Wednesbury’s standard is in fact set by the judges, who do not defer to some notional body of reputable bureaucrats similarly placed to the one whose decision is challenged.[25] English case law has suggested that something might be unreasonable in a Wednesbury sense if it is morally outrageous or defies logic,[26] although there are some doubts about the latter element, at least, for Australia.[27] There is some debate in Australia as to whether Wednesbury should be confined to reviewing a bureaucrat’s choice of options in the exercise of a statutory discretion,[28] or whether it can still cover the fact finding process.[29] Other aspects of Wednesbury are still uncertain,[30] but the biggest debate concluded some considerable time ago.
[10] No doubt prompted by the threat which review for unreasonableness posed to the classic distinction between the merits of a bureaucratic decision and its legality, Professor de Smith had opposed the evolution of unreasonableness into a ground of review in its own right. Unreasonableness had long been used as a basis for inferring, where appropriate, that the bureaucrat must have misunderstood the governing law. De Smith thought that it should be no more than evidence of some other error, rather than constitute an error in its own right.[31] He lost that debate, both at common law,[32] and in Australia’s principal statutory codification of judicial review, the Administrative Decisions (Judicial Review) Act 1977 (Cth).
[11] For the
most part, the sheer pressure of cases using unreasonableness as a fully fledged
ground of judicial review not only overwhelmed,
but also overlooked, de
Smith’s opposition. The exception makes an interesting connection with
doctrine largely outside the
area of judicial review. Lord Diplock said in
Council of Civil Service Unions v Minister for the Civil
Service:
To justify the court’s exercise of this role, resort I think is no longer needed to Viscount Radcliffe’s ingenious explanation in Edwards v Bairstow[33] of irrationality as a ground for a court’s reversal of a decision by ascribing to it an inferred though unidentifiable mistake of law by the decision-maker. ‘Irrationality’ by now can stand on its own feet as an accepted ground on which a decision may be attacked by judicial review.[34]
[13] The slide from unreasonableness as evidence of legal error to
unreasonableness as error per se has been urged in two other areas, both
closely related. The issue has arisen in the context of challenges to findings
of primary
facts – what happened, who did it, and why? It has also arisen
in the context of applying legal standards to the primary facts
as
found.
[15] The common law of judicial review recognises the possibility that Parliament may have intended the validity of bureaucratic or inferior court action to be dependent upon the judicial review court’s opinion as to the existence of a requisite fact. Such cases used to be rare, because they require the judicial review court to redetermine the critical fact from scratch, no matter how carefully the administrator may have performed that task.[38] There is recent evidence of a revival of judicial interest in the possibility of imputing the relevant intention to Parliament where the relevant decision-maker is not an inferior court. The author has argued elsewhere that any such exercise in implying parliamentary intent has as much of the judge in it as an actual intent of Parliament. The danger lies in converting the judge’s sense of the importance of the issues at stake into an implied statutory requirement that administrators cannot get their facts wrong.[39]
[16] Statutory restatements of judicial review grounds sometimes allow review for factual error per se, where the decision-maker’s belief in the existence of a fact was critical to their reasoning process. However, this ground is tightly circumscribed,[40] and is not presented as an error of law in its own right. It amounts simply to a statutory extension of judicial scrutiny into the realm of fact-finding.
[17] Australia’s intermediate courts of appeal typically have even broader extensions of judicial power beyond mere error of law, but once again, that is a function of the statutory grounds of appeal deliberately extending into the realm of fact.[41] The net result is that the test for the ‘no case’ submission imposes considerably stricter limits on the trial judge than apply to appeal courts. Whether (taken at its highest) there is evidence which could sustain a verdict is the legal test. It is a question of law, and not much more than a mere fragment of evidence on the material issues is needed to meet the test. There must be some evidence, of course, because fact-finding without any evidence to support it has always been an error of law in its own right. However, if there is some evidence, then the test is not whether it is tenuous or comes from an untrustworthy source, or whether the evidence to the contrary is overwhelming, or whether a verdict would be unreasonable, or even perverse.[42] Indeed, whilst there have been some formulations in terms of whether evidence ‘ought reasonably satisfy’ a jury, the importation of ‘reasonably’ has been decried as a worrying and potentially misleading distraction.[43] Chief Justice Spigelman said that ‘reasonably’ is a ‘weasel word’ in this context, liable to misuse in the hands of another Lord Denning.[44] Justice Phillips similarly declared it ‘a distraction’,[45] and their Honours have cited impressive lines of authority in support. This includes Chief Justice Mason’s judgment in Australian Broadcasting Tribunal v Bond (‘Bond’),[46] in which he doubted the applicability of English decisions[47] importing the word ‘reasonable’ into the ‘no evidence’ ground of judicial review.
[18] Subject, then, to special considerations relating to jurisdictional facts, and perhaps, prescribed legal standards of persuasion, it is an error of law to make a wrong finding of primary fact only if there was no evidence to support it, or if there may have been fragments but not enough to support the finding on any view of it.
[19] Justice Kirby has long thought
that this is too demanding. His Honour said in Azzopardi v Tasman UEB
Industries Ltd
(‘Azzopardi’)[48]
that ‘perverse’ findings of primary facts should also constitute
errors of law, in contexts where the decision-maker
gave reasons or was obliged
to give reasons. His Honour stated his proposed test for such contexts
thus:
But where, because of the development of the obligation of reasoned decision-making, the judge, unlike the jury, exposes his reasons and these reasons demonstrate manifest error or illogicality in the reasoning process, rely on facts which are not established by the evidence or indicate such an unexplained perversity as to suggest that an error has taken place in one of the three stages of the process of judicial decision-making [namely, fact-finding, rule-stating and rule application], an error in point of law will be established.[49]
[21] The
reasonableness standard can therefore be both fact and law in negligence and
administrative law, but it is still fact alone
in primary
fact-finding.[51]
[23] The tribunal adhered to its original conclusion, but this time made the jump from the facts to the legal conclusion without further explanation. Could legal error nevertheless be inferred? The House of Lords thought so, because the facts could not have been clearer.[55] Their Lordships acknowledged that the legal definition of trade was blurred at the edges. They said that the tax tribunals could therefore characterise facts falling within the penumbra as trade or not without legal error.[56] This, however, was not a case where the facts could reasonably permit an outcome either way. Here, the facts were within the core of the legal notion of trade, despite only an isolated transaction being involved.
[24] The amounts of tax in dispute were not huge, but the revenue authorities had thought it necessary to take their appeal as far as the House of Lords to resolve what had been thought to be a conflict between the English and Scottish cases. There were some broad statements of principle from the English courts that whether transactions amounted to trade was a pure question of fact, and some equally broad Scottish statements that they were either pure law, or at least mixed law and fact. Their Lordships reconciled the two bodies of authorities, by observing that only a question of fact was involved if the facts allowed a conclusion either way, and that a question of law was involved if the facts led irresistibly to only one legal conclusion. The tax tribunal’s legal error, therefore, was apparent in its initial decision, and inferred when it had tried to hide its legal reasoning.
[25] As an alternative to expressing this as a process of inferring legal error from the mismatch between facts and conclusion, Viscount Simonds said that one could ‘take a short cut and say that [the tribunal members] have made a wrong inference of law’.[57] His Lordship’s preference,[58] however, was to say that the conclusion that no trade was involved had been an inference of fact, drawn from the primary facts but flawed by legal error. That error had been to draw a conclusion ‘without any evidence or upon a view of the facts which could not reasonably be entertained’.[59]
[26] Lord
Radcliffe also introduced ‘reasonableness’ into an area hitherto
dominated by starker (and presumably more stringent)
formulas:
If the case contains anything ex facie which is bad law and which bears upon the determination, it is, obviously, erroneous in point of law. But, without any such misconception appearing ex facie, it may be that the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal. In those circumstances, too, the court must intervene. It has no option but to assume that there has been some misconception of the law and that this has been responsible for the determination. So there, too, there has been error in point of law. I do not think that it much matters whether this state of affairs is described as one in which there is no evidence to support the determination or as one in which the evidence is inconsistent with and contradictory of the determination, or as one in which the true and only reasonable conclusion contradicts the determination. Rightly understood, each phrase propounds the same test. For my part, I prefer the last of the three, since I think that it is rather misleading to speak of there being no evidence to support a conclusion when in cases such as these many of the facts are likely to be neutral in themselves, and only to take their colour from the combination of circumstances in which they are found to occur.[60]
[28] There is
more debate about the importation into Australian law of a
‘reasonableness’ standard, or more precisely,
of a reasonable margin
for disagreement. One might start with Chief Justice Jordan’s
‘classic’[61] exposition
in Australian Gas Light Company v Valuer-General (‘Australian
Gas’):
In cases in which an appellate tribunal has jurisdiction to determine only questions of law, the following rules appear to be established by the authorities:
(1) The question what is the meaning of an ordinary English word or phrase as used in the Statute is one of fact not of law. This question is to be resolved by the relevant tribunal itself, by considering the word in its context with the assistance of dictionaries and other books, and not by expert evidence;[62] although evidence is receivable as to the meaning of technical terms; and the meaning of a technical legal term is a question of law.
(2) The question whether a particular set of facts comes within the description of such a word or phrase [ie, an ordinary English word or phrase] is one of fact.
(3) A finding of fact by a tribunal of fact cannot be disturbed if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its finding, and there is evidence capable of supporting its inferences.
(4) Such a finding can be disturbed only (a) if there is no evidence to support its inferences, or (b) if the facts inferred by it and supported by evidence are incapable of justifying the finding of fact based upon those inferences, or (c) if it has misdirected itself in law. Thus, if the facts inferred by the tribunal from the evidence before it are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law. If, however, the facts so inferred are capable of being regarded as either within or without the description, according to the relative significance attached to them, a decision either way by a tribunal of fact cannot be disturbed by a superior Court which can determine only questions of law.[63]
[31] Some people start from the opposite premise, that all
applications of legal standards to the facts as found must logically raise
questions of law. Hayes v Federal Commissioner of Taxation
(‘Hayes’)
[65] is both a prominent
Australian example and an interesting counterpoint to Edwards v Bairstow.
As in Edwards v Bairstow, the question was whether a tax tribunal
had made an error of law because the High Court’s appellate jurisdiction
was limited
to such circumstances. Also, as in Edwards v Bairstow, the
Hayes facts were fully found, and the only question was whether a certain
receipt of shares was income. Justice Fullagar said that this
had to be a legal
question, not because (as in Edwards v Bairstow) the tribunal’s
conclusion was beyond any reasonable line drawn in the sand, but simply because
it involved applying law to
facts:
There are decisions in taxation cases, including decisions of the House of Lords, which, to my mind, create serious difficulty in relation to the distinction, which often has to be drawn, between ‘questions of fact’ and ‘questions of law’. For present purposes, however, I think it sufficient to refer to what was said by Lord Parker of Waddington in Farmer v Cotton’s Trustees,[66] in a passage quoted by Latham CJ in Commissioner of Taxation v Miller. His Lordship said:
With the greatest respect, this seems to me to be the only reasonable view. The distinction between the two classes of question is, I think, greatly simplified, if we bear in mind the distinction, so clearly drawn by Wigmore, between the factum probandum (the ultimate fact in issue) and facta probantia (the facts adduced to prove or disprove that ultimate fact). The ‘facts’ referred to by Lord Parker in the passage quoted are the facta probantia. 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.[68]
[33] The Migration Act
1958 (Cth) was amended in the early 1990s to restrict the scope of
Federal Court judicial review of migration decisions. The amendments
were poorly
drafted,[70] and had limited
success. Section
476(1)(e) stated the error of law ground of review thus:
that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision.
[35] Aside from statutory definitions, those who insist upon their analytical starting point usually come fairly quickly to some common ground with their contenders, simply because their logic too often includes too much within the concept of error of law. If every application of law to facts were necessarily a legal question, then juries would be deciding law as well as fact each time they found someone guilty.[72] In the law of judicial review, many more decisions would become subject to review for error of law if all applications of law to facts raised questions of law. In judicial review of decisions of the Refugee Review Tribunal, for example, whether the facts as fully found gave rise to a well-founded fear of persecution would inevitably raise a legal question. Chief Justice Barwick specifically rejected the analytic approach in a workers’ compensation case, where the question was whether the deceased’s daughter had been wholly dependent upon him at the time of his work-related death.[73] His Honour said that such an approach would make appellable every conclusion as to dependency, and said that ‘there is much to be said against the’ analytic view. The relative autonomy of the tribunal of fact would in each of these cases be seriously compromised.
[36] The academic proponents of the analytical approach stick to their principles, but in doing so, end up either criticising all lawyers for getting it wrong, or calling for a more articulate legislative restatement of the types of legal errors which should be reviewable.[74] It is as if there need be no empirical relationship between their theories and the ways the law-fact distinction plays out in practice.
[37] Most of the judicial
proponents of the analytical approach are, ironically enough, more pragmatic.
Whilst Justice Fullagar’s
judgment in Hayes, thought it likely that
all applications of law to the facts as found would raise a legal question, most
judges of the analytic orientation
have insisted upon ill-defined exceptions.
Justice Mason’s judgment in Hope v Bathurst City Council
(‘Hope’)[75]
is a good example. His Honour acknowledged the force of Justice Fullagar’s
approach, but added:[76]
However, special considerations apply when we are confronted with a statute which on examination is found to use words according to their common understanding and the question is whether the facts as found fall within these words. Brutus v Cozens[77] was just such a case. The only question raised was whether the appellant’s behaviour was ‘insulting’. As it was not unreasonable to hold that his behaviour was insulting, the question was one of fact.
[39] It will be recalled that the Court in Australian Gas treated a legal term’s meaning and its application as raising only questions of fact if an ordinary English meaning applied. Justice Phillips tentatively disagreed.[81] His Honour thought that the correct construction of a legal term may always be a question of law. Where that involves simply adopting ordinary English usage, its application to the primary facts will so often raise no legal questions as to invite an elision of the processes of construction (law) and application (fact). Justice Davies held in another case that misunderstanding an ordinary meaning had the effect of departing from the ordinary meaning, which was an error of law.[82] If it is error of law to stray beyond the boundaries of an ordinary meaning, then fixing the ordinary meaning must itself raise a question of law.
[40] Although this reasoning does contradict a large body of case law, it is submitted that the conclusion is inevitable. Of course, there is no error of law if the decision-maker has not strayed beyond the ordinary in determining meaning. One can thereby achieve the desired outcome of Australian Gas’ first two propositions without attempting a distinction between a statutory term’s legal and factual meaning. The distinction between ordinary and special meanings is the result of determining a legal term’s proper meaning or meanings. It is not a test for deciding when the court need not determine that meaning or those meanings.
[41] Justice Santow came to this conclusion in Anderson Stuart v Treleaven.[83] His Honour accepted that one must sometimes make factual inquiries as to a word’s usage before fixing upon its legal meaning. The occasional need for a prior factual inquiry, however, does not alter the overall principle that statutory construction is always a question of law.
[42] Glanville Williams thought that juries could often do with assistance, even with ordinary words.[84] Étienne Mureinik argued that ‘No word is born technical; every term of legal art becomes such by acquiring a technical legal meaning’.[85] His argument was that it takes an Act or a judge to give it that technical meaning. In the latter case, the meaning of even ordinary words is set by reference to statutory and common law context, and the structure and purpose of the Act. In other words, there are no ordinary meanings in the law, in the sense of meanings unaffected by their authorised interpreters. This accords with those jurisprudential theorists who treat interpretation as an exercise inevitably affected by the interpreter’s perspective. Interpretation always makes the words legal words, and meaning and interpretation are one and the same thing.[86]
[43] If allowing a margin for the application of ‘ordinary meanings’ were indeed special, one might have difficulty explaining why the same margin appears to be conceded where the legal term has a special meaning. Tax appeals have established that ‘income’ sometimes[87] has a special, rather than an ordinary meaning for income tax purposes.[88] Even there, however, the same margin seems to be allowed for applications of the legal criteria as if the term bore an ordinary meaning.[89]
[44] It is difficult to account for the precedent value of a judicial decision on a question of fact, if the application of ordinary meanings must always be a question of fact. The issue in Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen[90] was whether a visa applicant was a ‘special need relative’ of his son, who was an Australian citizen or permanent resident. That turned on whether the son’s age was enough in itself to put him into the categories of ‘disability’ or ‘other serious circumstance’. Justice McHugh thought that those categories were defined by words carrying ordinary meanings, and that their application was therefore a question of fact. It remained a question of fact, even though the administrative decision-maker had applied a Federal Court precedent establishing that a child’s age could never be sufficient to place him or her into either category. Right or wrong, the precedent was simply a view of the facts. The Full Court of the Federal Court, however, had assumed that it was deciding a question of law.[91] Its interpretation of the words in question turned much more on their context alongside other visa categories than upon the meaning to be attributed to words considered in isolation. Chief Justice Barwick had earlier made the same point as McHugh J, saying that the question of dependency in workers’ compensation claims was a question of fact, which ‘cannot be turned into a question of law by the citation of authorities’.[92]
[45] The
‘ordinary words’ exception to the strict analytic approach was
clearly intended to reduce the scope of what would
otherwise be an overly
inclusive definition of error of law. Its similarity to the ‘reasonable
application’ approach
of the Court in Edwards v Bairstow is
striking, although its motivation is entirely different. In Edwards v
Bairstow, the Court wanted to extend the scope of error of law to wholly
unreasonable applications of law to the facts, which makes sense
largely on the
background assumption that such applications are usually questions of fact. The
‘ordinary words’ approach
takes the opposite (ie, analytical)
assumption. The cases largely refuse to endorse either assumption as a
proposition of universal
validity. Two recent examples suffice.
(1) The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law.[96]
(2) The ordinary meaning of a word or its non-legal technical meaning is a question of fact.[97]
(3) The meaning of a technical legal term is a question of law.[98]
(4) The effect or construction of a term whose meaning or interpretation is established is a question of law.[99]
(5) The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law.[100]
In Pozzolanic, the Full Court qualified the fifth proposition. The Court said that when a statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts of the case fall within those words, the question as to whether they do or do not is one of fact.[101]
[48] The main burden of High Court’s criticism of Pozzolanic in Agfa, however, might be characterised as something of a red herring. The Court in Agfa went to some lengths to demonstrate that the meaning of a string of words might be different than the sum of the meanings of each separate word in the string. It is true, of course, that a single word will take some colour from those around it, even if the single word is very ordinary. It is difficult to believe that Pozzolanic intended to deny that. An alternative reading of Pozzolanic’s fourth proposition would be that ‘effect or construction’ referred not to the arithmetical addition of the meaning of each single word, but rather to the application to the facts of an unambiguous[103] law, even a law composed wholly of ordinary words intended to be given their ordinary meaning.
[49] That still leaves the puzzle of why the High Court refrained from commenting on Pozzolanic’s general adherence (by its fifth proposition) to the analytic approach.[104] One might conclude from Agfa that ordinary meanings are facts, but their application to the facts as found is a legal question unless that application is reasonably open.
[50] The second case is the more recent High Court decision in
Vetter v Lake Macquarie City Council
(‘Vetter’),[105]
which appears to accommodate the analytic and pragmatic stances. The issue in
this case was whether a worker was covered by workers’
compensation when
she ran her car off the road. Because she was not working at the time, that
depended on whether her driving was
in the course of a ‘journey’
home from work.[106] She was
driving home, but had first made her regular, fortnightly detour to her
grandmother’s home for an evening meal. The
trial judge had thought she
was on a ‘journey’ from work to home, despite her detour being
substantial in terms of direction,
time and distance. A majority of the Court of
Appeal had thought the detour so substantial as to make two journeys out of her
trip,
which meant that her crash did not occur whilst on a journey from work to
home.[107] The High Court
acknowledged the indeterminacy of the word
‘journey’,[108] but
thought that the Court of Appeal’s test of ‘one journey or
two’ was no substitute for the statutory
term.[109] The High Court thought
that the trial judge’s application of the term ‘journey’ to
the facts as found was within
the bounds of reasonableness. Justice Handley had
applied Lord Radcliffe’s test in Edwards v Bairstow of whether the
trial judge’s conclusion contradicted ‘the true and only reasonable
conclusion’.[110] Justice
Kirby called this ‘a somewhat sterile
criterion’,[111] as it
begged the question. His Honour nevertheless cited Lord Radcliffe’s speech
in Edwards v Bairstow in support of the following proposition:
Usually, a view of the facts taken by the primary decision-maker will not amount to an error of law. It will only do so if there is no evidence to support the conclusion, if the conclusion itself or the reasoning offered to support it betray a mistaken view of the applicable law, or if no reasonable decision-maker could have come to that view of the facts.[112]
[52] The joint judgment of Gleeson CJ, Gummow, Hayne and Callinan JJ cited Edwards v Bairstow with apparent approval.[113] At the same time, however, their Honours quoted with apparently equal approval from Justice Mason’s judgment in Hope,[114] in which, it will be recalled, the notion of a reasonable margin was a special exception to the analytic approach, applying only where words with ordinary meanings were being applied to the facts. The issue in Vetter did not require the court to indicate whether it was endorsing Edwards v Bairstow only because the relevant legal test was whether the worker had been on a ‘journey’, and because that was an ordinary word to be given its ordinary meaning. Referring to Hope rather than Edwards v Bairstow, Justice Hayne’s use of the ‘either way’ analysis was based squarely on his characterisation of ‘journey’ as an ordinary word carrying its ordinary meaning.[115] The joint judgment, however, seems more likely to have explained its use of the ‘either way’ analysis not on the basis that ‘journey’ is an ordinary word, but because, as the joint judgment said: ‘The term “journey”, used in the relevant sense, has an indeterminate meaning or meanings’.[116]
[53] Their Honours had earlier quoted with approval from a judgment of Mason JA in Williams v Bill Williams Pty Ltd.[117] The Court of Appeal had held in this case that workers’ compensation covered an employee’s injuries received when shot by a jealous husband who had pursued him out of his work-place onto the footpath. Justice Mason said that a contrary conclusion was an error of law, either because the facts had been fully found and it only remained to apply the law,[118] or because on those facts, it was not ‘reasonably possible’ to reach a different conclusion. It would have been an error of fact if the question had been ‘largely one of degree upon which different minds may take different views’.[119]
[54] Justice Mason had said in Hope[120] that ‘special considerations’ applied where a legal term carried its ordinary English meaning. There has long been a parallel line of cases, however, allowing the same margin to reasonable applications of law to the primary facts where the legal term has a range of acceptable meanings.[121] That was the position in Vetter, where ‘journey’ was a term of indeterminate meaning. The same approach has long been evident where the legal term itself requires a degree of evaluation or judgment,[122] as in the case of applying the ‘reasonable care’ standard to the primary facts in a negligence case. Applications of the law to the primary facts in these cases are often characterised as questions of degree, or of mixed law and fact. Questions of degree and mixed questions are often classified as questions of fact.[123] It suffices in some statutory contexts to say that a question is mixed if the facts are not fully found.[124] The concept of a mixed question is usually less well-defined, and has been condemned on that score as far back as 1842.[125] Nevertheless, it is frequently used.
[55] It appears that answers to mixed
questions, and questions of degree, turn into errors of law under exactly the
same conditions
as in Australian Gas, namely, where the answers are
necessarily wrong.[126] That
imports a margin,[127] and the
only question is whether to expand on the Australian Gas margin by
introducing a reasonableness
standard.[128] Chief Justice
Spigelman acknowledged the introduction of tests such as that ‘no other
conclusion was reasonably open’,
but insisted that this was no different
in essence from the Australian Gas question of whether the impugned
application of the legal standard to the primary facts was necessarily
wrong.[129] After criticising
‘reasonable’ as a ‘weasel
word’,[130] his Honour
concluded that the test ‘has a stringency equivalent to that of
Wednesbury
unreasonableness’.[131]
Justice Phillips characterised ‘reasonable’ as a distracting
intrusion, which effects no alteration to tests such as
those in Australian
Gas if properly construed:
The word ‘reasonably’ is used in this context, I suggest, just to emphasise that, when judging what was open and what was not open below, we are speaking of rational tribunals acting according to law, not irrational ones acting arbitrarily. The danger of using the word ‘reasonably’ lies in its being taken to suggest that a finding of fact may be overturned, on an appeal which is limited to a question of law, simply because that finding is regarded as ‘unreasonable’.[132]
[57] The exceptions to that proposition would be twofold. The first exception would apply where the application has produced a result beyond any margin for reasonable minds to agree to differ. Justice Phillips opposed the ‘intrusion’ of ‘reasonable’ into this test, but saw a good many cases (including Edwards v Bairstow and Azzopardi) as proposing essentially the same margin for essentially the same reasons.[136]
[58] The second qualification to applications of law being factual exercises is not so much an exception as a separate proposition. To return to Pozzolanic, whether a term’s meaning is ordinary or special is itself a question of law, and the meaning of a technical legal term is also a question of law. Each of those propositions is well-established. However, neither of them turns on the application of the legal term (technical or otherwise) to the primary facts. Misunderstanding the governing law has always been an error of law in its own right, and that should include misunderstanding the legal meaning of a statutory term, ordinary or special. Misunderstanding is the error, and that can occur in relation to ordinary as well as technical terms. In other words, the proper meaning of any legal term should itself be a question of law.[137]
[59] Indeed, this article has discussed a word’s ordinary meaning in the singular, whereas ordinary and special words alike can be more than indeterminate. They can have quite different meanings, in contexts which require the court to choose the most appropriate meaning. The necessity to choose between different ordinary meanings presents a question of law, if one of those meanings would undermine the statutory objectives.[138] The issue in Hope[139] was whether small-scale use of land for an agistment constituted the ‘carrying on of a grazing business’. ‘Business’ was used in its ordinary meaning, but the Shorter Oxford Dictionary gave nineteen meanings. Justice Mason thought that the choice of meanings presented a question of fact, but that the trial judge had nevertheless erred in law in two respects. He had impermissibly required the business activity to be ‘significant’. He had also impermissibly treated the word in isolation from its attachment to the notion of something being ‘carried on’, thereby overlooking the need to adopt a meaning which accommodated the need for a repetitive and ongoing activity. That was an error of construction which was an error of law. Even working with the distinction between ordinary and special meanings, it seemed fairly easy to make the move from fact to law. Overlooking the restrictive effect of context upon an ordinary word is a constructional, and therefore legal error.
[60] Of course, if the
impugned decision-maker properly understood the term, and if its construction
were not complicated, there would
be less likelihood of it being so misapplied
to the primary facts as to exceed the permissible margin, however
expressed.
[62] The second stage of decision-making is determining the applicable law. Many cases say that any mistakes here are errors of law, unless the legal term in question carries an ordinary, non-technical meaning. This article argues that the distinction between ordinary and special meanings is unworkable, and announces a result rather than a test. The purpose of the distinction seems to be to allow more latitude for some terms, but that is a matter of statutory interpretation, not an inherent, qualitative distinction between words.
[63] Moving to the third stage of decision-making, the application of the law to the facts can produce a question of law, but the cases conflict as to when and why. They even conflict as to whether it is the norm or the exception, and the High Court has endorsed both viewpoints. Whether the norm or the exception, each approach has a counterpoint, whose bottom line is to treat applications of the law to the facts as involving an error of law where a certain margin has been exceeded. The coverage and extent of that margin might depend on the viability of the ‘ordinary words’ category, although this article argues that this would be a mistake. The High Court has recently used the word ‘reasonable’ as part of its account of the margin, although it has its opponents on two grounds, namely, that the use of the word ‘reasonable’ either changes nothing or should change nothing in the reasoning to be applied by the courts. The proponents of some sort of reasonableness test, however strict, seem to have left behind the old strategy of arguing from an implausible outcome to an inference that the law must have been misunderstood. That shift was probably inevitable as decisions are increasingly accompanied or followed by detailed reasons.[141]
[64] It is therefore not surprising to find statements of despair or even cynicism littered through the law reports. The law-fact distinction has been called ‘slippery’,[142] ‘elusive’,[143] ‘too easily manipulated’,[144] ‘sterile and technical’,[145] and something which can generate ‘artificial, if not illusory’ distinctions.[146] Some have wondered whether it might not be meaningless.[147] In the absence of an all-encompassing set of rules, the inevitable result is the idea that the distinction is made differently in different contexts.[148] Justice Windeyer seemed to take that approach in Da Costa v R,[149] and Spigelman CJ took it unequivocally in Attorney General v X.[150] Justice Windeyer acknowledged the opportunities for judicial manipulation of the distinction according to whether the judge wanted to intervene. His Honour said that the distinction’s manipulability ‘may engender cynicism or stimulate self-examination or merely show that the distinction is not capable of precise formulation’.[151] His Honour felt able to avoid coming to any firm conclusion because the statute he had to construe talked of ‘a question of law alone’. Chief Justice Spigelman felt able to read down ‘questions of law’ to ‘questions of law alone’ because of the context in which it appeared.[152]
[65] It is submitted that cynicism is simply not an available option, if only because so many statutes stipulate appeal rights or limitations according to whether fact or law is involved. It is not open to take the cynical view that the distinction is meaningless or infinitely manipulable.[153] It is almost as unconvincing to be wholly cynical about the law-fact distinction in light of its pervasiveness in common law doctrine. It is critical, for example, in the law of judicial review, which generally leaves administrative fact-finding reasonably well alone.[154] The common law allows judicial review for error of law only if the error is jurisdictional, or (failing that), if it is apparent on the face of the record. In deciding where to draw the line between jurisdictional and non-jurisdictional errors of law, the Australian trend has been to allow a generous margin to inferior court judges, but not to administrators. There is room for debate, however, as to the strength of that trend.[155] English common law has converted almost all errors of law into jurisdictional errors,[156] and Kirby J has indicated that he would like to follow suit.[157] Statutory judicial review schemes have overtaken the common law in this respect, either by allowing review for any error of law,[158] or by stipulating a more generous definition of the record.[159]
[66] It is submitted that the original intent of the distinction between jurisdictional and non-jurisdictional errors of law was to accord decision-makers a small measure of independence. The erosion of the distinction at common law and under statutory judicial review schemes has prompted English commentators to call for a more flexible, context-dependent approach to defining error of law,[160] for fear that this ground of review might otherwise prove to be a monster.[161]
[67] Timothy Endicott[162] concluded that the law-fact distinction has in fact always been context-dependent. He argued that it cannot have been otherwise. This argument must be correct, because the distinction turns up in such diverse contexts, and is clearly meant to serve different purposes. Examples include the rules about pleading material facts, not law; the division of functions between judge and jury; some aspects of the law of misrepresentation in business dealings; criminal law’s distinctions between mistakes of fact and law; the division of functions between judges and witnesses or counsel; and the division of functions between administrator and judicial review court. By contrast, the High Court rejected the law-fact distinction as an irrelevancy in restitutionary claims for moneys paid under a mistake, and was therefore free to add that the distinction was ‘difficult’, ‘illogical’ and ‘artificial’.[163] It can only have been the context which earned the distinction those criticisms.
[68] Analysis divorced from context is indeed half-baked, and Endicott lays claim to having the truly ‘analytical’ approach. His main conclusion is an important one which this article gratefully adopts. It is that good analysis asks why the question is being asked. It does not ask what result might be convenient. There is room for pragmatism in answering the first question, but an answer based wholly on convenience is pure cynicism. When the law-fact distinction determines eligibility to judicial review or appeal, one should pay regard to the relationships between the decision-maker and the court, and to the functions sought to be served by appellate or review mechanisms.
[69] Chief Justice Spigelman said in Attorney General (NSW) v X[164] that the considerations of context include ‘the scope, nature and subject matter of the statute, including the nature of the body making the relevant decision’.[165] The line might well be drawn differently, for example, depending on whether the decision-maker was a judge or an administrator.
[70] Lord Denning once
propounded a functional test of sorts for the law-fact distinction, which was to
ask whether the question needed
a lawyer’s skills to give it a proper
answer.[166] That begged the
question, and was never accepted. In Edwards v Bairstow Lord Radcliffe
refused to draw the line according to the relative tax skills of the tax
tribunal and generalist court, although the court would in any event
have fared
better in comparison with the woodenly mechanical tax tribunal in that
case.[167]
[72] Whether the primary facts be found by an administrator, tribunal or inferior court, the finding has little if any lasting precedent effect beyond its effects on the parties themselves. The same can often be said as regards the third stage, where the correct legal test is applied to the primary facts; this usually affects only the parties, although there will inevitably be some contexts where the decision will become a precedent or represent a policy decision. That might explain the relative rarity of error of law in assessing, say, degrees of contributory negligence or impairment, as compared to some tax, welfare and migration decisions. Principles from the latter areas are more likely to be discerned from a range of specific applications over time. It also explains the tension occasionally apparent in appeal cases between elevating earlier applications of the law to similar facts as precedents, and other more functional concerns than the need for consistency. One of the reasons that Barwick CJ did not want applications of the test for ‘dependency’ to become precedents was the need in workers’ compensation for speed and finality of decision-making.[169] Justice Mason recognised in the same case that the trade-off was to allow a greater level of inconsistent outcomes in workers’ compensation, where ‘the decisions are not notorious for their uniformity’.[170]
[73] The County Court judges in Pearlman v Harrow School[171] produced two lines of authority on whether a tenant’s installation of a common central heating unit qualified for a rent reduction as a ‘structural addition’. Lord Denning thought that he had to classify this as a question of law, because there would otherwise have been no way of resolving an inconsistency he regarded as ‘intolerable’.[172] There were concerns about precedent in Edwards v Bairstow, one more obvious than the other. At the surface level, their Lordships felt obliged to settle a perceived inconsistency between the Scottish and English courts about when they could overturn a tax tribunal’s application of the law to a commonly recurring fact situation. At a deeper level, they felt obliged to downgrade the precedent status of an earlier decision,[173] which they thought had been applied too mechanistically.
[74] It is submitted that the precedent concerns in Pearlman v Harrow School might have been as adequately addressed by focusing not on the third stage of decision-making (the application of the law to the facts), but on the second stage. A declaration that the installation of that type of central heating installation could constitute a structural alteration was all that was needed. The courts had no choice but to progress from stage two to three in Edwards v Bairstow, because the tax tribunal had ignored the earlier direction from Upjohn J that an isolated transaction could constitute an adventure in the nature of trade. That is, a declaration as to a legal term’s meaning usually carries more precedent force than an individual instance of its application to specific facts. Furthermore, it will in fact carry that precedent force regardless of whether the declared meaning is of a word bearing an ordinary meaning.[174]
[75] Even in cases where only the third stage of the decision-making process is involved, there are clear indications in the English cases that inconsistent administrative treatment of like cases might be a ground for judicial review.[175] A handful of Australian cases have treated inconsistency as either an unreasonableness issue or a natural justice issue.[176] Furthermore, there is a well-established line of authority invalidating a preconceived administrative policy on how to treat commonly recurring facts if that policy serves to confine the proper legal test.[177] These interventions are not on the ground of error of law, but they do proceed from a concern as to the proper relationship between administrative precedent and the meaning of the governing law.
[76] The Americans accord considerable deference to the
administrative agencies’ interpretations of their own statutes and rules,
provided that those interpretations carry the force of agency authority and
precedent.[178] The High Court
emphatically disagrees with that
approach,[179] but the
‘either way’ latitude it allows to applications of the law to the
primary facts as found serves to confine the
differences between the two
countries to the interpretative or second stage of the decision-making
process.
[78] Inferential error in the process of finding the facts is the least likely to produce an error of law, perhaps because it is the least likely to have a precedent effect. Misinterpreting the applicable legal rule will always be regarded as an error of law, although it may not always be material. Applying the law to the facts should usually be regarded as a factual exercise, producing errors of law only where the result reached is beyond any tolerable margin. Whether that margin is usefully defined by its reasonableness is still disputed by those who fear that ‘unreasonable’ is too flexible (and therefore too manipulable) an adjective for this area. However, whatever the adjective, there is general agreement that the application of law to fully found facts produces an error of law only where the outcome is clearly not open. It is suggested that there is no harm in expressing the requisite clarity in terms of unreasonableness, provided one understands that the level of unreasonableness is equivalent to that required by the Wednesbury test. Applications of the law to the facts as found are usually treated as factual exercises because of the need to allow the decision-maker a margin for his or her own judgment. The margin’s existence and rationales are reasonably clear, despite its formulation having yet to be authoritatively pronounced.
[79] Several leading judgments have listed a number of general propositions, whilst taking care to disown any attempt at stating a universally applicable formula. The High Court has in more recent times attempted a modest reduction in the number of those general propositions. It has suggested rejection of a distinction previously drawn between meaning and construction or effect, but it has repeated a number of distinctions turning on whether Parliament intended its terminology to bear an ordinary or special meaning. This article argues that the court could go further. The greater the number of categories or prima facie rules, the greater the difficulties in distinguishing between them. That leads to greater manipulability, which in turn leads to a sense of cynicism in the whole exercise of seeking some meaningful distinctions between questions of law and fact.
[80] This article argues that the margin allowed to decision-makers,
involved in applying the law to the facts of a case as found,
is the same,
regardless of whether the legal terms being applied bear an ordinary or a
special meaning. Australian case law contains
two oft-repeated distinctions
which should be discarded. The first is between words with ordinary or special
meanings, and the second
is between applications of ordinary or special meanings
to the facts as found. All legal words have legal meanings, although some
might
be easier to grasp, wider, or less determinate than others. Their application to
the facts calls for correction whenever they
are clearly wrong.
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URL: http://www.austlii.edu.au/au/journals/UNSWLawJl/2001/26.html