Judicial Review Grounds I

Law/Fact – General Principles

• Errors of law are often defined by reference to the law/fact distinction. It plays a role in two chief areas:

  • Statutory Appeals - by a legislative right ‘on a question of law’ (e.g. Appeal from a member of the ADT to the Appeals Panel of the Tribunal or to the Supreme Court under the ADT Act 1997

  • Judicial Review – certiorari used to quash an error of law on the face of the record or ADJR Act s5(1)(f) allows orders reviewed on the ground that decisions involved an error of law (not necessarily on the face of the record)

• The law/fact distinction arises in other places – e.g. jurisdictional facts can either be legal or factual requirements

• General courts pay deference to the position/skill of decision makers in factual rather than legal issues

• The concept of ‘error of law’ helps to define/demarcate the supervisory jurisdictions of courts. Courts generally grant relief in relation to errors of law but not on errors of facts or non-errors.

• The issues to be considered in determining whether something is an error of law includes:

  • The terms of the legislation being applied

  • The nature of the decision-maker whose decision is under review (court/tribunal/administrator)

  • The nature of the issue being reviewed and its context ‘the critical nature of the line drawn...between factual and legal matters varies with the purpose it serves’ (McHugh, Gummow JJ in Ex Parte Applicant)

• The law/fact distinction is important in influencing the meaning in regards to

  • Rights of appeal – they’re restricted to question of law (or judicial review under s39B of the Judiciary Act)

    • But there has been implicit pressure on the court to align the scope of ‘error of law’ with s39B

  • For AAT FCA appeals the phrase used is ‘question of law’ rather than ‘error of law’ – the latter being broader (allows review and to ‘refer a question of law’ arising in the Tribunal proceedings, both to the FCA)

    • But on a ‘on a question of law’ is narrower than ‘involved’ a question of law

• The phrase ‘error of law’ comprehends most if not all the grounds of review listed in the ADJR Act s5 but probably isn’t as broad in scope sine courts have been more prepared to extend grounds of judicial review to cover errors of fact and “perverse or illogical reasoning” (e.g. its acknowledgement as within the statute’s breadth in Bruce v Cole [1998])

  • Perversity – a decision-maker who acts without probative evidence does not make a valid decision (Spigelman CJ in Bruce v Cole)

  • But other approaches have been taken:

    • Restricted Approach: Fisher J in Blackwood Hodge v CoC – On the basis of parliamentary intent that only in exceptional circumstances should Tribunal’s decisions not be final (not incl. Errors of law). “Deprecates” the practice of inflating questions of fact into question of law and obtaining decisions on matters which the legislature wished to have determined by the other bodies (citing Amalagamated Engo Union)

    • Similar Scope: Davies J in Tuite v AAT – notes that ‘questions of law’ encompasses s5 of the ADJR Act (failure to account a material in consideration, taking into account irrelevant considerations etc.)

• The most common basis for finding an error of law is the ubiquitous failure to take into account relevant considerations or taking account of irrelevant considerations

• Despite these disagreements, ‘error of law’ at least embraces the most important judicial review grounds (breaches of natural justice, acting without jurisdiction, asking the wrong question, failure to comply with statute to give reasons)

Applying legislation to facts

• The application of a legislative standard to facts to make a decisions broadly involves three distinct stages:

  • Finding the facts

  • Construing the legislation

  • Applying the legislation to the facts

Fact Finding

• Includes establishing primary facts by evidence/observation, using those facts to prove other facts by inference (e.g. driving negligently drawn from speed, type of road, traffic density etc.)

• An error made at the fact-finding stage will be an error of fact, unless there is no evidence to support the finding or inference of fact (Melbourne Stevedoring)

  • But a minority view that manifest illogicality or perversity exists (Kirby P in Azzopardi)

1. An error in fact-finding can support the inference that the decision-maker was ‘asking the wrong question’ or ‘applying the wrong test’

   • Thus a perverse finding of fact can be found in other means (receiving inadmissible evidence, rejecting admissible evidence, allowing evidence contrary to the rules of evidence)

2. If a factual inference is not supported by probative material it is an error of law, but not if the inference is merely unreasonable or illogical

Rule-stating

• Many words/phrases/sentences are open to different shades of meaning – the broad distinction is that between the ‘ordinary English meaning’ (which deciding the meaning of is a process of fact – e.g. through Dictionaries) and a ‘specialist or technical meaning’ (which deciding the meaning of is a process of law e.g. through expert evidence)

• Important requirements are:

1. The threshold question – whether a word bears its ordinary or technical meaning – the choice itself is an error of law

2. The court Agfa-Gavert cast doubt in this distinction in Pozzolanic (interpreting words are processes of fact but joining them to other words requires statutory construction which is a process of law_ preferring the traditional distinction between ‘ordinary’ and ‘technical’

• Also - the more complex the statutory setting the more likely that statutory construction raises questions of law:

  • Hope – the word ‘business’ was an ordinary English word but had 19 dictionary meanings and therefore it was a process of law deciding which was appropriate for the statutory phrase and setting

• Where the meaning of a word is clear but it is capable of more than one application/outcome, whether the statutory outcome is satisfied...

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