1. The court’s duty to ascertain
jurisdiction
Cameron Ford*
Where proceedings are limited to questions of law, may a
court accept the concession, or lack of complaint, of a
party that the question is one of law and assume
jurisdiction, or is it under an independent duty to deter-
mine its jurisdiction and reject the proceeding if the
question is not one of law, notwithstanding the wishes of
all parties for the proceeding to be heard on the merits?
INTRODUCTION
In a worker’s compensation appeal limited to questions of law,1
the Northern
Territory Court of Appeal in Wakeling v Qantas Airways Ltd2
doubted the issue
raised was one of law, but dealt with the appeal on the merits because the
respondent did not press the point. Was this proper deference to the concessions
of the parties, or did the court have a “first duty”, in the words of Griffith CJ who
said “the first duty of every judicial officer is to satisfy himself that he has
jurisdiction”?3
The point in question in Wakeling was whether a worker’s access to
concessional airline travel formed part of his remuneration and should be taken
into account when calculating his average gross weekly remuneration and,
ultimately, “normal weekly earnings”.4
Southwood and Mansfield JJ,5
Mar-
tin (BR) CJ agreeing, said:
It is questionable whether the characterisation of the appellant’s access to
concessional airline travel as a gratuitous payment which did not form part of his
remuneration involved an error of law. However, the respondent did not formally
challenge the competency of the appeal either before Thomas J or on the appeal. Nor
did the respondent develop the assertion in its written outline of argument that the
appeal involved only a question of fact.
The appellant says the error of law in this case is the presiding magistrate, at first
instance, and subsequently Thomas J on appeal, misinterpreted or misconstrued the
*
Barrister; Executive Editor, NTLJ; Editor-in-Chief, NTLR (cameron@cameronford.co).
1
Workers Rehabilitation and Compensation Act 1986 (NT) s 116(1).
2
Wakeling v Qantas Airways Ltd (2010) 239 FLR 1.
3
Federated Engine-Drivers & Firemen’s Association of Australasia v Broken Hill Proprietary Co Ltd
(1911) 12 CLR 398 at 415, applied by Latham CJ in R v Blakeley; Ex parte Association of Architects,
Engineers, Surveyors & Draughtsmen of Australia (1950) 82 CLR 54 at 70 (Kitto J agreeing at 100)
and by Fullagar J at 90-91. See also Hazeldell Ltd v Commonwealth (1924) 34 CLR 442 at 444
(Isaacs ACJ; Gavan Duffy J agreeing); Robins v Incentive Dynamics Pty Ltd (in liq) (1999) 91 FCR
423 at [40] (Branson, Sackville and Kiefel JJ).
4
Wakeling v Qantas Airways Ltd (2010) 239 FLR 1 at [4].
5
The latter of the Federal Court of Australia, and since June 2009 an Additional Judge of the Supreme
Court of the Northern Territory.
(2011) 2 NTLJ 13 13

2. meaning of “average gross weekly remuneration” in subparagraph (d)(ii) of the
definition of “normal weekly earnings” in s 49(1) of the Act when calculating the
appellant’s normal weekly earnings.
As the respondent did not formally challenge the competency of the appeal, it was
appropriate in this instance to hear the appeal. It is sufficient to observe that the
contention of the appellant on the competency of the appeal was not clearly
incorrect.6
Was this the correct approach or should the court have invited submissions7
on whether the issue was one of fact or law, or considered the question as part of
its determination of the appeal?8
Ultimately, the court dismissed the appeal on the
merits. This may have been one reason it was not so concerned to explore the
proceeding’s competency. Had it thought there was merit in the appeal, it might
well have felt constrained to examine competency to a greater depth.
A DUTY TO ASCERTAIN JURISDICTION
Griffith CJ in Federated Engine-Drivers & Firemen’s Association of Australasia
v Broken Hill Proprietary Co Ltd said:
But the first duty of every judicial officer is to satisfy himself that he has jurisdiction,
if only to avoid putting the parties to unnecessary risk and expense. In this respect a
grave responsibility rests upon the President, whose jurisdiction is limited both by the
Constitution and the Act. This responsibility is not diminished by the possibility that
he may be misled by imperfect or erroneous information. The mode of satisfying
himself may vary in different cases. In most cases that come before an ordinary Court
of law it is not necessary to make any inquiry on the subject, although in some cases
it is. In dealing with the question of jurisdiction the President must exercise his
discretion as to the evidence which he will receive and upon which he will act, and is
no more fettered in that exercise than in receiving evidence upon any other matter in
his Court. I do not think that in this respect the amendment of sec 25 makes any
difference.9
His Honour was not limiting his comments to where a party challenges
jurisdiction, but was describing a general duty to ascertain jurisdiction.
Similarly, Barton J said:
It is as wrong to accept jurisdiction without sufficient inquiry as to refuse it with
precipitancy. Where the jurisdiction is disputed, adequate and careful inquiry is still
the duty of the Court of first instance, just as it may become the duty of the superior
Court. On the other hand, where the jurisdiction is not contested by the party
defending, very slight inquiry may be adequate, and many cases will to the mind of
6
Wakeling v Qantas Airways Ltd (2010) 239 FLR 1 at [27]-[29], citing Murwangi Community
Aboriginal Corp v Carroll (2002) 12 NTLR 121; Wilson v Lowery (1993) 4 NTLR 79.
7
As was done by Roberts-Smith J in Jewel Walk Pty Ltd v Kondinin Group Inc [2001] WASC 264
at [19] and Keely J in Amalgamated Metal Workers’ & Shipwrights’ Union v Carey (1981) 54 FLR
386.
8
As was done by Walsh J in Krew v Federal Commissioner of Taxation (1971) 45 ALJR 324 at 325.
9
Federated Engine-Drivers & Firemen’s Association of Australasia v Broken Hill Proprietary Co Ltd
(1911) 12 CLR 398 at 415, referring to the responsibility of the President of the Federal Arbitration
Court under the Commonwealth Conciliation and Arbitration Act 1904 (Cth).
Ford
(2011) 2 NTLJ 1314

3. the tribunal be so plainly within its competence that it will rightly forego inquiry
unless the objection is taken, and the objector tenders proof of facts in its support.10
Again, the duty to inquire is not imposed only where there is a challenge;
rather, the content of the duty is altered depending on how plain it is that the case
is within jurisdiction. Isaacs J made comments to similar effect.11
Likewise, in an earlier case, Federated Amalgamated Government Railway
& Tramway Service Association v New South Wales Railway Traffıc Employees
Association, Griffith CJ, with Barton J concurring, said:
A point of jurisdiction, when it is seriously raised, or if it suggests itself to the Court
without being taken by a party, cannot properly be disregarded. Nor is a Court
justified in making an order which it has no jurisdiction to make by the mere fact that
no objection is offered.12
In another case, Khatri v Price, Katz J said:
Because any Australian court is a court of limited jurisdiction, its “first duty”, when
there has been a purported invocation of its jurisdiction, is to satisfy itself that it has
the jurisdiction purportedly invoked.13
His Honour went on to consider what it meant to consider jurisdiction “first”,
concluding that the court has a discretion as to whether it determines jurisdiction
as a preliminary issue or postpones the determination until it has heard the whole
case.
Fullagar J, delivering separate reasons but in the majority with Latham CJ
and Webb and Kitto JJ in R v Blakeley, immediately before citing the dictum of
Griffith CJ, said:
Generally speaking, when a tribunal, other than a superior Court in the technical
sense, is called upon to exercise jurisdiction, it must, of necessity, begin by
considering for itself the preliminary question whether it possesses the jurisdiction
invoked. That question may depend on questions of law or questions of fact or on
questions both of law and of fact.14
Excepting superior courts from the general rule would be due to them being
considered courts of unlimited jurisdiction and therefore by definition in no need
of determining their jurisdiction as a preliminary question.15
However, at least
since 1987, it has been recognised there is no court of truly unlimited jurisdiction
in Australia, with Toohey J saying in Jackson v Sterling Industries Ltd:
10
Federated Engine-Drivers & Firemen’s Association of Australasia v Broken Hill Proprietary Co
Ltd (1911) 12 CLR 398 at 428.
11
Federated Engine-Drivers & Firemen’s Association of Australasia v Broken Hill Proprietary Co
Ltd (1911) 12 CLR 398 at 454, quoting Coleridge J in Bunbury v Fuller (1853) 9 Ex 111 at 140;
[1853] ER 768.
12
Federated Amalgamated Government Railway & Tramway Service Association v New South Wales
Railway Traffıc Employees Association (1906) 4 CLR 488 at 495.
13
Khatri v Price (1999) 95 FCR 287 at [14] (emphasis added), citing Griffith CJ in Federated
Engine-Drivers & Firemen’s Association of Australasia v Broken Hill Proprietary Co Ltd (1911) 12
CLR 398 at 415.
14
R v Blakeley; Ex parte Association of Architects, Engineers, Surveyors & Draughtsmen of Australia
(1950) 82 CLR 54 at 90-91.
15
Support for this interpretation of his Honour’s comments can be found in the judgment of Finn J in
Offıcial Trustee in Bankruptcy v Nedlands Pty Ltd (in liq) (2000) 99 FCR 554 at [14].
The court’s duty to ascertain jurisdiction
(2011) 2 NTLJ 13 15

4. The Federal Court is a creature of statute, but so too are the superior courts and other
courts of this country. The High Court itself has the jurisdiction conferred upon it by
the Constitution and Acts of the Parliament. Though it is common to speak of the
inherent jurisdiction possessed by superior courts of unlimited jurisdiction, in truth
there is within the federal system of this country no court of unlimited jurisdiction.16
Particularly where the jurisdiction of a superior court is expressly subject to
some condition, it is suggested that those courts are not exempt from the
necessity of at least turning their mind to jurisdiction in the way suggested by
Griffith CJ and Barton J in Federated Engine-Drivers. In most cases where
objection is not taken there will be no issue, but there may be some cases where
the parties wrongly assume that the court has jurisdiction,17
or for their own
reasons concede a non-existent jurisdiction.18
Kirby J19
expressed the duty somewhat differently in Old UGC Inc v
Industrial Relations Commission (NSW), where he said:
Indeed, it is the first duty of judicial and quasi-judicial bodies, when a question of
their jurisdiction and powers is raised, to satisfy themselves as to such jurisdiction
and as to their power to afford the relief claimed.20
There his Honour could be taken to be suggesting that the duty only arises
where one of the parties raises the question of jurisdiction. However, his Honour
referred to a question being raised, which could equally be a question being
raised in the mind of the tribunal.21
This would accord with the words of
Griffith CJ in the Federated Amalgamated Government Railway & Tramway
Service case, cited by Kirby J, where the Chief Justice said the duty was
independent of the question being raised by the parties.
Speaking of constitutional challenges to jurisdiction, Kirby J in Re Boulton;
Ex parte Construction, Forestry, Mining & Energy Union may be taken as
suggesting the duty only arises when a party challenges jurisdiction. His Honour
said:
Every court or tribunal in this country must, where objection is taken to its
jurisdiction, determine that objection as a preliminary question. If it has no lawful
jurisdiction it may not assume that it has and it ought not to pretend that it has.22
His Honour was not limiting courts inquiring into their jurisdiction to cases
where objection had been taken. He was simply saying that, where an objection is
taken, the court must determine jurisdiction. He did not say that where no
16
Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 630.
17
As in Truman v Natwest Investments Australia Pty Ltd (unreported, FCA, Gummow J, No P710 of
1989, 14 February 1990), discussed below.
18
As in National Union of Workers v Pacific Dunlop Tyres Pty Ltd (1992) 37 FCR 419 at 427
(Heerey J).
19
Dissenting, but not on this point.
20
Old UGC Inc v Industrial Relations Commission (NSW) (2006) 225 CLR 274 at [51].
21
See also the comments of Gibbs J in R v Federal Court of Australia; Ex parte WA National
Football League (1979) 143 CLR 190 at 215, quoting Devlin J in R v Fulham, Hammersmith &
Kensington Rent Tribunal; Ex parte Zerek (1951) 2 KB 1 at 10.
22
Re Boulton; Ex parte Construction, Forestry, Mining & Energy Union (1998) 73 ALJR 129 at 133.
Ford
(2011) 2 NTLJ 1316

5. objection is taken the court need not consider its jurisdiction. That would be at
odds with his second sentence and his later comments in Old UGC Inc cited
above.
The inevitable conclusion is that courts are under a duty to ascertain their
jurisdiction where a party raises the question or where the question is raised in
the mind of the tribunal. Indeed, it could be taken further to say that courts are
under a positive duty to consider their jurisdiction independently of any issue
being raised by a party.
NO JURISDICTION BY CONSENT
Jurisdiction cannot be conferred on a court by consent of the parties23
or by a
concession by one of them.24
Gummow J, while a member of the Federal Court,
said in Truman v Natwest Investments Australia Pty Ltd:
As the litigation in Thomson Australian Holdings Pty Ltd v Trade Practices
Commission (1981) 148 CLR 150 at 163-164 illustrates, there can be no general
principle that when an order is consented to by all parties, the court ought to make it.
Where there is a condition precedent to the exercise of the jurisdiction in question and
the legislature has committed to the court the responsibility to determine whether
orders should be made, consent of the parties would not, one should have thought, be
sufficient.25
His Honour was there dealing with a proceeding which had been transferred
by consent from the Supreme Court to the Federal Court, purportedly under the
cross-vesting legislation.26
It was, his Honour said, a “condition of jurisdiction”
that there had been a valid order of the transferring court27
and that, if the issue
arose, it was for the receiving court “to determine whether the conditions of its
jurisdiction have been satisfied”.28
Consent of the parties to the transfer did not
cure jurisdictional defects or relieve the court of its obligation to determine
jurisdiction.
Heerey J in National Union of Workers v Pacific Dunlop Tyres Pty Ltd,
dealing with a suggestion that the parties had entered an enforceable agreement to
be bound by the court’s decision, said:
23
Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 at 163
(Gibbs CJ, Stephen, Mason and Wilson JJ), 167 (Murphy J); Commissioner of Taxation (NT) v
Tangentyere Council (1992) 2 NTLR 76.
24
Fingleton v The Queen (2005) 227 CLR 166 at [196] (Hayne J).
25
Truman v Natwest Investments Australia Pty Ltd (unreported, FCA, Gummow J, No P710 of 1989,
14 February 1990) at [24].
26
Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth); Jurisdiction of Courts (Cross-Vesting) Act
1987 (NSW).
27
Truman v Natwest Investments Australia Pty Ltd (unreported, FCA, Gummow J, No P710 of 1989,
14 February 1990) at [22].
28
Truman v Natwest Investments Australia Pty Ltd (unreported, FCA, Gummow J, No P710 of 1989,
14 February 1990) at [23].
The court’s duty to ascertain jurisdiction
(2011) 2 NTLJ 13 17

6. In any case, since consent cannot create jurisdiction (see Thomson Australian
Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 at 163) there
could be no binding contract to confer jurisdiction.29
Further, in Boglari v Steiner School & Kindergarten, Neave JA, Chernov JA
and Habersberger AJA agreeing, said:
A jurisdictional issue of this kind does not fall within the principle in Whisprun Pty
Ltd v Dixon [(2003) 77 ALJR 1598] where the issue was whether a concession made
in proceedings below prevented the party making the concession from arguing a
particular point on appeal.30
Her Honour cited Fingleton v The Queen where, in the context of a criminal
case, the High Court permitted an appellant to raise for the first time a statutory
immunity which was a complete answer to the charges of which she had been
convicted. Speaking of the respondent’s concession that the court should
entertain the fresh ground, Hayne J said:
Effect must be given to that concession. It is not a concession about the Court’s
jurisdiction. That would not bind the Court. But, after Crampton [(2000) 206 CLR
161], there is no question about the Court’s jurisdiction.31
By not pressing the point, the respondent in Wakeling effectively consented
to the court entertaining the appeal or made a concession that the appeal was
competent. Was this the same as consenting to or conceding jurisdiction? That
leads to the question of whether the competency of the appeal – to use the
court’s, and a common, word – went to jurisdiction or to something less which
could be conceded.
“Competency” is generally taken to refer to the right of a party to make, and
the jurisdiction of a court to entertain, a particular proceeding. In AMS v AIF,
Gleeson CJ, McHugh and Gummow said:
This appeal should be disposed of on the basis that s 39(2) [of the Judiciary Act 1903
(Cth)] invested the State Family Court with federal jurisdiction and invested the Full
Court of the Supreme Court with appellate federal jurisdiction so as to render
competent the appeal to the Full Court. No contrary submission was made. Nor was it
contended that the appeal to the Full Court had been incompetent.32
In Baxter v Commissioners of Taxation (NSW), Isaacs J said:
The opening words of sec 74 [of the Constitution (Cth)] are in the negative: “No
appeal shall be permitted to the Queen in Council from a decision of the High Court.”
This makes the Privy Council incompetent to hear such an appeal, just as in the North
British Railway Co v Wauchope [(1862) 4 Macq 348 at 352] Lord Westbury LC said
the House of Lords was by very similar words not competent to hear that appeal.33
There is no reason to suppose the Court of Appeal was using the word in any
different sense.
29
National Union of Workers v Pacific Dunlop Tyres Pty Ltd (1992) 37 FCR 419 at 427.
30
Boglari v Steiner School & Kindergarten (2007) 20 VR 1 at [55].
31
Fingleton v The Queen (2005) 227 CLR 166 at [196]. See also Gleeson CJ at [6], McHugh J
at [59], Gummow and Heydon JJ at [120] and Kirby J at [160], [182].
32
AMS v AIF (1999) 199 CLR 160 at [27].
33
Baxter v Commissioners of Taxation (NSW) (1907) 4 CLR 1087 at 1150.
Ford
(2011) 2 NTLJ 1318

7. One matter should be mentioned for completeness. While parties cannot
confer jurisdiction by consent, they may by their purported consensual conferral
constitute the court as their arbiter and be bound by the result. In Meyers v Casey,
Isaacs J said:
It is true no consent of parties can supplement the law of the land so as to give a
tribunal any jurisdiction to dispense the King’s justice, which the law does not itself
confer. The law provides the exact measure of that jurisdiction, and no private
arrangement can add to it or take from it. But, dispensing the King’s justice is one
thing; settling a private dispute so as to bind the parties according to agreement
express or implied is another. And even where the Judge of a public Court is invited
to act outside his statutory jurisdiction, the parties may be bound. Lord Watson, for
the Privy Council, in Ledgard v Bull [1886) LR 13 IA 134 at 145] said: “When the
Judge has no inherent jurisdiction over the subject matter of a suit, the parties cannot,
by their mutual consent, convert it into a proper judicial process, although they may
constitute the Judge their arbiter, and be bound by his decision on the merits when
these are submitted to him.”34
This is different from granting the court judicial jurisdiction and does not
affect this argument, particularly where the issue is a right under a statute.
DOES THE QUESTION OF FACT VS LAW GO TO JURISDICTION?
Many statutes provide a right of appeal on questions of law only. Does this mean
that an appellate court lacks jurisdiction to deal with an appeal on questions of
fact or may a respondent consent to, concede or acquiesce in an appeal on fact
alone? It is clear that, subject to statutory provisions to the contrary, whether a
question is one of law goes to the jurisdiction of the court where an appeal is
limited to those questions.
The starting point must be the statute conferring jurisdiction. As Kirby J said
in Coal & Allied Industries Pty Ltd v Australian Industrial Relations
Commission:
In every case where the issue is that of the duty and function of an appellate court or
tribunal, the only safe starting point is a careful examination of the language and
context of the statutory provisions affording the appellate right, together with a
consideration of the powers enjoyed by, and duties imposed on, the body to which the
appeal lies.35
The right of appeal in Wakeling was conferred by s 116(1) of the Workers
Rehabilitation and Compensation Act 1986 (NT), which provided:
Subject to subsection (3), a party to a proceeding before a magistrate of the Court
who is aggrieved by a decision or determination of the magistrate may appeal against
the decision or determination on a question of law to the Supreme Court within the
time and in the manner prescribed by the Rules of the Supreme Court.
General appellate jurisdiction is conferred on the Supreme Court by s 14(1)
of the Supreme Court Act 1979 (NT) in the following terms:
34
Meyers v Casey (1913) 17 CLR 90 at 117.
35
Coal & Allied Industries Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR
194 at [69], applied by Weinberg CJ of the Supreme Court of Norfolk Island in Grube v Minister for
Lands and the Environment (2005) 194 FLR 54 at [45].
The court’s duty to ascertain jurisdiction
(2011) 2 NTLJ 13 19

8. (1) In addition to the jurisdiction conferred on it elsewhere by this Act, the Court –
...
(e) has jurisdiction, with such exceptions and subject to such conditions as are
provided by a law in force in the Territory, to hear and determine appeals
from all judgments of inferior courts in the Territory given or pronounced
after the commencement of this Act.
Combining those two provisions, the Supreme Court has jurisdiction to hear
appeals from the Work Health Court except on questions of fact. Putting it
another way, the Supreme Court does not have jurisdiction to hear an appeal from
the Work Health Court on questions of fact. This interpretation is supported by
principle, logic and authority.
A fundamental principle supporting this interpretation is that appeals are
creatures of statute36
and, in the words of Mildren J, Martin (BF) CJ and
Thomas J agreeing, in Alice Springs Town Council v Mpweteyerre Aboriginal
Corp:
It is well established that whenever a new court is established, there is no appeal from
it unless it is conferred by statute: Holmes v Angwin (1906) 4 CLR 297 at 304 per
Griffith CJ. It is a necessary corollary of that principle that both the nature of the
appeal and the powers of the court in disposing of the appeal must be found in the
wording of the statute: Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124
CLR 192 at 202 per Windeyer J.37
Conferring a right of appeal on a party has the effect of extending the
jurisdiction of the court to which the appeal is made. In Attorney-General v
Sillem, Lord Westbury said:
Suppose the Legislature to have given to either tribunal, that is, to the Court of the
First Instance, and to the Court of Error or Appeal respectively, the fullest power of
regulating its own practice or procedure, such power would not avail for the creation
of a new right of appeal, which is in effect a limitation of the jurisdiction of one
Court, and an extension of the jurisdiction of another. A power to regulate the practice
of a Court does not involve or imply any power to alter the extent or nature of its
jurisdiction.38
36
State Rail Authority (NSW) v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306 at [72];
Attorney-General v Sillem (1864) 10 HL Cas 703 at 720-721; 11 ER 1200 at 1207-1208; South
Australian Land Mortgage & Agency Co Ltd v The King (1922) 30 CLR 523 at 553; Victorian
Stevedoring & General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at 108; Commissioner
for Railways (NSW) v Cavanough (1935) 53 CLR 220 at 225; Grierson v The King (1938) 60 CLR
431 at 436; Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192 at 202
(Windeyer J); Gipp v The Queen (1998) 194 CLR 106 at [117]; Merribee Pastoral Industries Pty Ltd
v ANZ Banking Group Ltd (1998) 193 CLR 502 at [18]; CDJ v VAJ (1998) 147 CLR 172; Fleming v
The Queen (1998) 197 CLR 250 and cases there cited; Baxter v Commissioners of Taxation (NSW)
(1907) 4 CLR 1087 (Griffith CJ, Barton and O’Connor JJ); Holmes v Angwin (1906) 4 CLR 297
at 304 (Griffith CJ).
37
Alice Springs Town Council v Mpweteyerre Aboriginal Corp (1997) 115 NTR 25 at 35, quoting
from his earlier decision in Wormald International (Aust) Pty Ltd v Aherne (unreported, NTSC,
Mildren J, No 28 of 1994, 23 June 1995).
38
Attorney-General v Sillem (1864) 10 HL Cas 703 at 720-721; 11 ER 1200 at 1208.
Ford
(2011) 2 NTLJ 1320

9. There, by rules of court, judges39
had endeavoured to grant a right of appeal
from their decisions to an appeal court.40
Since this involved a limitation of their
jurisdiction and an extension of the appellate court’s jurisdiction, it was held to
be beyond the rule-making power.41
That being the case, logic suggests that the court’s jurisdiction to entertain an
appeal is reflective of a party’s right to appeal. Where a party has no right to
appeal, the court has no jurisdiction to hear an appeal. It suggests that the
requirement that the question appealed be one of law goes to the jurisdiction of
the appellate court, not something less. Witnessing this are the words of Isaacs J
in Baxter quoted above that the Privy Council was incompetent to hear the
appeal.
Many authorities support this contention. In Tiver Constructions Pty Ltd v
Clair, Mildren J, Martin and Gallop JJ agreeing, said:
An appeal to the Supreme Court is restricted to a question of law (s 26(1) [of the
Workers’ Compensation Act 1949 (NT)]) and an appeal from that Court to this
obviously cannot be on any other question, particularly, one involving a question of
fact. No more than did his Honour, this Court has no jurisdiction to control findings
of fact of the Workers’ Compensation Court.42
Dixon J said in Smith v Mann, referring to a case being stated by the
Workers’ Compensation Commission for the Supreme Court on questions of law
only:
Accordingly, the statement of a case after award becomes a means of invoking the
jurisdiction of the Supreme Court so that it may revise or reconsider, within the limits
of the question of law raised, the determination of the Commission.43
This statement was endorsed by Dixon CJ, Williams, Webb and Taylor JJ,
McTiernan J agreeing, in Zuijs v Wirth Brothers Pty Ltd.44
Further, Kirby J in Roncevich v Repatriation Commission said:
The Federal Court’s jurisdiction in the present case derived from s 44 of the
Administrative Appeals Tribunal Act 1976 (Cth). It was limited to an “appeal”, being
one “on a question of law” … But because there was evidence to sustain the
conclusion, notably the evidence of Sergeant Lee, it was one which the Federal Court
had no jurisdiction to disturb within its limited powers in an “appeal”.45
His Honour also said:
39
The Lord Chief Baron and three of the Barons of the Court of Exchequer.
40
The Court of Exchequer Chamber.
41
The Australian authority on this point is Harrington v Lowe (1996) 190 CLR 311. See also Ford C,
“Advocates’ Liability for Wasted Costs” (2005) 16 ILJ 153 at 155-156.
42
Tiver Constructions Pty Ltd v Clair (1992) 110 FLR 239 at 255.
43
Smith v Mann (1932) 47 CLR 426 at 446.
44
Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561 at 574.
45
Roncevich v Repatriation Commission (2005) 222 CLR 115 at [66].
The court’s duty to ascertain jurisdiction
(2011) 2 NTLJ 13 21

10. If “perverse” findings of fact are protected from disturbance by courts limited to a
jurisdiction confined to correcting errors on questions of law, a conclusion which is
far from “perverse” is even more obviously protected from disturbance.46
Relevantly here, his Honour spoke of the jurisdiction of the court being limited to
questions of law, not merely its powers or some other attribute.
In Tracy Village Sports & Social Club v Walker, Mildren J said:
It is necessary to bear in mind the limited powers of this Court on an appeal of this
nature. The supervisory jurisdiction of this Court is limited to the question of whether
or not there is an error of law. This Court has no jurisdiction to correct factual
errors.47
The Full Federal Court dealt with the issue in Federal Commissioner of
Taxation v Swansea Services Pty Ltd:
From the board’s decision, the Commissioner appealed to the Supreme Court. For
that Court to have jurisdiction, it was necessary, pursuant to the then s 196(1), that a
question of law be involved in the appeal.48
In Federal Commissioner of Taxation v Cooper, Hill J, Lockhart and
Wilcox JJ agreeing, said:
Whether a question of law was involved in the appeal from the Board of Review to
the Supreme Court has been considered by Hill J in his reasons for judgment which I
have read in draft form. I agree with him that more than one question of law was
involved in the appeal and generally with his reasons in support of that conclusion.
The Supreme Court therefore had jurisdiction to determine the appeal.49
His Honour went on to say:
It is a prerequisite of jurisdiction that the question of law as identified be really and
not colourably involved: Fisher v Deputy Federal Commissioner of Taxation (1966)
40 ALJR 328; Lombardo v Federal Commissioner of Taxation (1979) 40 FLR 208 per
Franki J (at 215).50
Sitting alone on a taxation appeal limited to questions of law, Gibbs J said in
XCO Pty Ltd v Federal Commissioner of Taxation:
Moreover it is immaterial for purposes of jurisdiction whether or not the question of
law involved was erroneously decided by the Board (see Krew v Federal
Commissioner of Taxation [(1971) 45 ALJR 324 at 325] and cases there cited).51
In Attorney-General (Cth) v Breckler, Gleeson CJ, Gaudron, McHugh,
Gummow, Hayne and Callinan JJ said:
46
Roncevich v Repatriation Commission (2005) 222 CLR 115 at [68].
47
Tracy Village Sports & Social Club v Walker (1992) 111 FLR 32 at 37-39.
48
Federal Commissioner of Taxation v Swansea Services Pty Ltd (2009) 72 ATR 120 at [56],
McKerracher J quoting from Federal Commissioner of Taxation v Cooper (1991) 29 FCR 177 at 192.
49
Federal Commissioner of Taxation v Cooper (1991) 29 FCR 177 at 181.
50
Federal Commissioner of Taxation v Cooper (1991) 29 FCR 177 at 195.
51
XCO Pty Ltd v Federal Commissioner of Taxation (1971) 124 CLR 343 at 348.
Ford
(2011) 2 NTLJ 1322

11. We have referred to the operation of s 46 of the Complaints Act [Superannuation
(Resolution of Complaints) Act 1993 (Cth)] to confer jurisdiction upon the Federal
Court with respect to an “appeal” on a question of law from a determination of the
Tribunal.52
Section 46(1) of the Superannuation (Resolution of Complaints) Act 1993
(Cth) provides:
A party may appeal to the Federal Court, on a question of law, from the determination
of the Tribunal.
Those words, held by the High Court to be a conferral of jurisdiction, are
materially the same as the words in the Northern Territory Act creating the right
of appeal from the Work Health Court to the Northern Territory Supreme Court.
Gibbs CJ, Brennan, Deane and Dawson JJ said in Harris v Director-General
of Social Security:
The jurisdiction of the Federal Court of Australia is limited to appeals from the
Tribunal on questions of law (s 44(1) of the Administrative Appeals Tribunal Act
1975 (Cth)), though that Court “may make such order as it thinks appropriate by
reason of its decision” (s 44(4)).53
Section 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth)
provides:
A party to a proceeding before the Tribunal may appeal to the Federal Court of
Australia, on a question of law, from any decision of the Tribunal in that proceeding.
French J, as he then was in the Federal Court, said in Federal Commissioner
of Taxation v Swift:
The function of the Court on an appeal under subs 44(1) of the Administrative
Appeals Tribunal Act is limited to resolving the question or questions of law upon
which the appeal is brought. In so doing it exercises a narrower jurisdiction than that
previously conferred on the Supreme Courts of the States by s 196 of the Income Tax
Assessment Act which allowed for appeals from Taxation Boards of Review on
matters “involving a question of law” and thus, upon identification of a question of
law, conferred jurisdiction in respect of the whole of the disputed decision –
Committee of Direction of Fruit Marketing v Australian Postal Commission (1979) 37
FLR 457, 467 (Northrop J); Brown v Repatriation Commission (1985) 60 ALR 289,
291 (Full Court); Waterford v Commonwealth of Australia (1987) 71 ALR 673, 689
(Brennan J); Commissioner of Taxation v Brixius (1987) 16 FCR 359, 363 (Full
Court); TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation
(1988) 82 ALR 175, 178 (Gummow J).54
His Honour then said:
This discussion and the cases mentioned turn upon the phrase “question of law”
which confines the jurisdiction of the Federal Court in an appeal from the Tribunal.55
Referring to the Full Federal Court’s decision in Brown v Repatriation
Commission, Weinberg CJ of the Norfolk Island Supreme Court said in Grube v
Minister for Lands and the Environment:
52
Attorney-General (Cth) v Breckler (1999) 197 CLR 83 at [34].
53
Harris v Director-General of Social Security (1985) 59 ALJR 194 at 198.
54
Federal Commissioner of Taxation v Swift (1989) 20 ATR 1434 at 1447.
55
Federal Commissioner of Taxation v Swift (1989) 20 ATR 1434 at 1448.
The court’s duty to ascertain jurisdiction
(2011) 2 NTLJ 13 23

12. The question that arose in that case was whether the appeal was limited to
consideration of the question of law only, or whether, once that question had been
sufficiently identified to engage the Court’s jurisdiction, the appeal extended to a
rehearing of the whole matter.56
His Honour went on to say:
The foregoing, necessarily incomplete, review of the kinds of questions that can
properly be described as questions of law is intended to provide a framework within
which to assess which, if any, of the appellants’ claims properly engage the
jurisdiction of this Court.57
In Brown v Repatriation Commission, the Full Federal Court had said:
The existence of a question of law is not merely a qualifying condition to ground an
appeal from a decision of the Tribunal; rather, it and it alone is the subject matter of
the appeal, and the ambit of the appeal is confined to it.58
While a member of the Federal Court, Deane J, Fisher J agreeing, said in
Director-General of Social Services v Chaney:
The jurisdiction of this Court in relation to proceedings before the Tribunal is that
conferred by s 44, s 44A and s 45 of the [Administrative Appeals Tribunal] Act. For
present purposes, that jurisdiction is the jurisdiction to hear and determine, in the
original jurisdiction of the court, an “appeal … on a question of law, from any
decision of the Tribunal” in a proceeding before the Tribunal (s 44), the jurisdiction to
hear and determine any question of law referred to it by the Tribunal (s 45) and the
jurisdiction to make interim orders in a case where an appeal from a decision of the
Tribunal has been instituted (s 44A).59
In Regional Director of Customs (WA) v Dampier Salt (Operations) Pty Ltd,
the Full Federal Court said:
That “appeal” is a proceeding in the original jurisdiction of this Court and is an
appeal on, that is to say limited to, a question of law. Having regard to the 1995
Amending Act, the learned primary judge was of the view that the identification of
the question of law on the part of the Tribunal, the precondition to jurisdiction of the
Court, fell to be determined in accordance with the law in force prior to the 1995
Amending Act.60
Using the word “competent” to refer to the court having jurisdiction, Walsh J
sitting alone in Krew v Federal Commissioner of Taxation said:
I have stated that I think there are questions of law which make the appeal
competent.61
56
Grube v Minister for Lands and the Environment (2005) 194 FLR 54 at [48], referring to Brown v
Repatriation Commission (1985) 7 FCR 302.
57
Grube v Minister for Lands and the Environment (2005) 194 FLR 54 at [87].
58
Brown v Repatriation Commission (1985) 7 FCR 302 at 304 (Bowen CJ, Fisher and Lockhart JJ).
59
Director-General of Social Services v Chaney (1980) 47 FLR 80 at 99.
60
Regional Director of Customs (WA) v Dampier Salt (Operations) Pty Ltd (1996) 67 FCR 108 at 113
(Einfeld, Hill and Carr JJ) (emphasis added).
61
Krew v Federal Commissioner of Taxation (1971) 45 ALJR 324 at 326. See also Williams J in
Federal Commissioner of Taxation v Sagar (1946) 71 CLR 421 at 423; Ruhamah Property Co Ltd v
Federal Commissioner of Taxation (1928) 41 CLR 148 at 151 (Latham CJ, Gavan Duffy, Powers and
Starke JJ), 155 (Isaacs J dissenting but not on this point).
Ford
(2011) 2 NTLJ 1324

13. Countless other examples may be found62
all pointing to the same conclusion
that where an appeal is limited to a question of law, the court does not have
jurisdiction to entertain an appeal where no such question arises. A question of
law is a precondition to, or a prerequisite of, the court’s jurisdiction. Without a
question of law, the court’s jurisdiction is not engaged. The appeal is not
competent and neither is the court competent to hear the appeal.
WAS THE QUESTION ONE OF LAW?
At issue in Wakeling was whether a worker’s access to concessional airline travel
formed part of his remuneration and should be taken into account when
calculating his average gross weekly remuneration and thereby calculating his
“normal weekly earnings”.63
Relevant parts of s 49(1) said:
normal weekly earnings, in relation to a worker, means:
(a) subject to paragraphs (b), (c) and (d), remuneration for the worker’s normal
weekly number of hours of work calculated at his or her ordinary time rate of pay.
Simplified, the question was whether free travel was part of his remunera-
tion. Doubting this was one of law, their Honours cited Murwangi Community
Aboriginal Corp v Carroll where Angel and Riley JJ and Priestley AJ said:
The first issue to be determined is what is included in the expression “remuneration
… earned by the worker …” and, in particular, whether the identified non-monetary
benefits received by the worker are to be included. This is a question of fact.64
Dealing with whether certain amounts were remuneration under s 26(e) of
the Income Tax Assessment Act 1936 (Cth), Hill J, Davies and Whitlam JJ
agreeing, said in Howell v Federal Commissioner of Taxation:
The present is not a case where it could be said on the evidence that it was not open
to the Tribunal to conclude that the amounts in question were remuneration paid to
Mr Howell. Whether they were involves a question of fact and not of law and is for
the Administrative Appeals Tribunal to decide.65
Naturally, care needs to be taken in using interpretations in one statutory
context in another; however, it is suggested the principle here is the same.
A differently constituted Court of Appeal recently considered the difficult
question66
of the difference between a question of law and one of fact in the
context of a worker’s compensation appeal. In Waylexson Pty Ltd v Clarke, the
question was whether an injury occurred “in the course of the employment”
62
For example, Local Government Association Workers Compensation Scheme (Whyalla City Corp) v
Hazeal [2007] SAWCT 41 at [6]; Bond Corp Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 193
at 211, Re Kwiatek; Ex parte Big J Ltd v Pattison (1989) 21 FCR 374 at 380; Western Australian
Planning Commission v Corker [2005] WASC 64 at [33]; Coober Pedy District Council v Collector of
Customs (1993) 42 FCR 127 at 129; Australian Postal Corp v Matusko (unreported, FCA, Olney J,
No VG120 of 1995, 14 May 1996) at [9]; Neal v Secretary, Department of Transport (1980) 29 ALR
350 at 354; Repatriation Commission v Thompson (1988) 44 FCR 20 at 25; North Ganalanja
Aboriginal Corp v Queensland (1996) 185 CLR 595 at 639 (McHugh J).
63
Wakeling v Qantas Airways Ltd (2010) 239 FLR 1 at [4].
64
Murwangi Community Aboriginal Corp v Carroll (2002) 12 NTLR 121 at [8].
65
Howell v Federal Commissioner of Taxation (1994) 28 ATR 105 at 110.
66
In the words of Mildren J in Waylexson Pty Ltd v Clarke (2010) 25 NTLR 168 at [26].
The court’s duty to ascertain jurisdiction
(2011) 2 NTLJ 13 25

14. within the meaning of the Act. Mildren J considered whether that question was
one of fact or law in some detail,67
saying essentially that whether facts as found
fall within a statutory term is usually a question of law,68
unless that term is used
according to its common understanding, in which case it will be a question of fact
if different conclusions are reasonably open.69
It will only be a question of law in
that case if only one conclusion is reasonably open.
Whether facts as found fell within the term “in the course of the
employment” was a question of fact where all that could be shown was that a
different conclusion was reasonably open, even though that phrase may have
acquired a technical legal meaning.70
His Honour said:
Specific error aside, what must be demonstrated to establish an error of law, is that
there is really only one conclusion reasonably open (or to adopt the expression used
in Hatzimanolis [v ANI Corp Ltd (1992) 173 CLR 473 at 486, 491], a finding to the
contrary was “inevitable”) and that was a conclusion which differs from the
conclusion reached by the learned Magistrate.71
Although not expressing it in this way, his Honour effectively found there
was only one conclusion open to the magistrate and that, because he had focused
on the wrong activity,72
he had made an error of law by not coming to that one
conclusion.
Riley J (as he then was) approached the issue differently, saying instead that
the question went to the legal effects of the facts as found and was therefore a
question of law.73
The Chief Justice did not indicate a preference for the reasons of Mildren J
or Riley J, simply saying:
I agree that the appeal should be dismissed. The decision of the learned Judge on
appeal was correct.74
It is not necessary to consider whether there is a difference between the
approaches of Mildren J and Riley J in Wakeling. While Riley J did not find it
necessary to distinguish between terms of common understanding and those with
a purely statutory meaning, it is suggested unlikely he would find the question of
67
Waylexson Pty Ltd v Clarke (2010) 25 NTLR 168 at [26]-[32].
68
Waylexson Pty Ltd v Clarke (2010) 25 NTLR 168 at [27]-[28], citing Tiver Constructions Pty Ltd v
Clair (1992) 110 FLR 239 at 245; Alice Springs Town Council v Mpweteyerre Aboriginal Corp (1997)
115 NTR 25 at 35-36; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
at 287; Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47 at 51.
69
Waylexson Pty Ltd v Clarke (2010) 25 NTLR 168 at [30], citing Hope v Bathurst City Council
(1980) 144 CLR 1 at 7 (Mason J; Gibbs, Stephen, Murphy and Aitken JJ concurring); Vetter v Lake
Macquarie City Council (2001) 202 CLR 439 at 450-451 (Gleeson CJ, Gummow and Callinan JJ),
477-478 (Hayne J).
70
Waylexson Pty Ltd v Clarke (2010) 25 NTLR 168 at [32].
71
Waylexson Pty Ltd v Clarke (2010) 25 NTLR 168 at [32].
72
Waylexson Pty Ltd v Clarke (2010) 25 NTLR 168 at [44].
73
Waylexson Pty Ltd v Clarke (2010) 25 NTLR 168 at [64], citing Tiver Constructions Pty Ltd v Clair
(1992) 110 FLR 239 at 245.
74
Waylexson Pty Ltd v Clarke (2010) 25 NTLR 168 at [1] (Martin (BR) CJ).
Ford
(2011) 2 NTLJ 1326

15. whether a benefit was remuneration to be a question of law given that he is a
member of the unanimous court holding to the contrary in Murwangi.
Here, the question was whether the concessional airline travel formed part of
the worker’s “normal weekly earnings”, a phrase defined in the Act. The answer
to that question depended on whether the concession formed part of his
remuneration, a term not defined. So even though the ultimate question was
whether the facts as found fell within a defined term – “normal weekly earnings”
– which arguably does not have an ordinary meaning in common speech,75
that
question could only be answered by first determining whether the facts fell within
a non-defined term – “remuneration” – which certainly has a common meaning.
That reasoning, supported by Murwangi, Wilson v Lowery and Howell which
held so without debate, indicates that whether a benefit is or is not remuneration
is a question of fact.
CONCLUSION
The question appealed in Wakeling was a question of fact. Since the right to
appeal was limited to questions of law, so too was the court’s jurisdiction and the
court lacked jurisdiction to entertain the appeal. Even though the respondent did
not develop its argument that the question was one of fact, the court was under a
duty to ascertain its jurisdiction, either by inviting submissions or by alerting the
parties that it would determine the issue in the absence of the point being taken.
75
To use the words of Mildren J in Waylexson Pty Ltd v Clarke (2010) 25 NTLR 168 at [31].
The court’s duty to ascertain jurisdiction
(2011) 2 NTLJ 13 27