First Published: (2007) 13 LGLJ 66 - All Rights Reserved. Disclaimer: The information contained in this publication does not constitute legal advice of any kind. The author Ian Ellis-Jones does not guarantee or warrant the current accuracy, legal correctness or up-to-dateness of the information contained in the publication.

1. ________________________________________________________________
The ever elusive fact/law distinction
Ian Ellis-Jones* (2007) 13 LGLJ 66
________________________________________________________________
The fact/law distinction, which is of enormous significance in the context of
both the common law doctrine of jurisdictional error as well as statutory
appeal for error of law, is one of many elusive, indeed annoying,
dichotomies in our law. The issue of whether a particular question is one of
fact as opposed to law is often fraught with difficulties, and the task has not
been made easier by the courts which have often applied conflicting criteria
with indeterminate and altogether unpredictable results. One of the worst
grey areas has been the question of whether primary facts, fully found,
come within a statutory description. There has been conflicting judicial
authority as to whether that question is one of fact or law, but it is now clear
that it is ordinarily a question of fact in circumstances where divergent
conclusions or inferences can, on the evidence, be drawn as to whether or
not the primary facts come within the ambit of a statutory description.
However, a question of law is involved where only one conclusion or
inference can be drawn from a set of primary facts as to whether or not
they come within the ambit of a statutory description, and an error of law
occurs where a contrary conclusion or inference has been drawn by the
original decision-maker. In addition, it would appear that a question of law
is involved where the statute uses the words comprising the statutory
description in a sense other than their ordinary meaning. Nevertheless, the
fact/law distinction can still present problems in the context of the drawing
of conclusions or inferences from primary facts which may sometimes be
conclusions or inferences of fact and sometimes conclusions or inferences
of law.
INTRODUCTION
Jurisdictional matters may involve questions of fact (called, relevantly,
“jurisdictional fact”),1 as well as questions of law, and possibly also what have
1
* Solicitor of the Supreme Court of New South Wales and the High Court of Australia, Senior
Lecturer, Faculty of Law, University of Technology, Sydney, and Consultant, Arraj Lawyers,
Sydney.
S
A jurisdictional fact is some fact or fact situation which “must” exist in fact as a condition
precedent or essential prerequisite for the decision-maker to exercise its jurisdiction in
circumstances where the legislature intended that the absence or presence of the fact or fact
situation would invalidate action under the statute. See, eg, Timbarra Protection Coalition v Ross
Mining NL (1999) 46 NSWLR 55; 102 LGERA 52; Corporation of the City of Enfield v
Development Assessment Commission (2000) 199 CLR 135; Chambers v Maclean Shire Council
(2003) 57 NSWLR 152; 126 LGERA 7. See, generally, Ellis-Jones I, “The ‘Jurisdictional Fact

2. 2
been referred to as “mixed questions of fact and law”. Green has aptly written:
No two terms of legal science have rendered better service than “law” and “fact” …
They readily accommodate themselves to any meaning we desire to give them …
They are the creations of centuries. What judge has not found refuge in them? The
man who could succeed in defining them would be a public enemy.2
THE PARAMOUNTCY OF FACTS
Softly be it stated, but it is undeniably the case that the fact/law distinction is one
of those many elusive, even dubious, dichotomies in administrative law that, in
judicial review proceedings, “provide the margin between restraint and
intervention, validity and invalidity”.3 Dickinson has rightly pointed out that
“[m]atters of law grow downward into roots of fact, and matters of fact reach
upward, without a break, into matters of law”.4 The High Court of Australia had
this to say about the matter in Collector of Customs v Agfa Gevaert Limited:5
The distinction between questions of fact and questions of law is a vital distinction
in many fields of law. Notwithstanding attempts by many distinguished judges and
jurists to formulate tests for finding the line between the two questions, no
satisfactory test of universal application has yet been formulated.6
It has been said that “whether an error is one of fact or law is determined by legal
theory”,7 but with respect the supposed theory is far from helpful. Even as
regards questions of fact, there is an elusive distinction between so-called
“primary” and “ultimate” questions of fact. The ultimate question of fact (factum
probandum) is the ultimate or end-point fact in issue. Take, for example, the
definition of “farmland” in s 515(1) of the Local Government Act 1993 (NSW). The
ultimate question of fact (also being one of jurisdictional fact) is whether or not a
particular parcel of rateable land is “farmland” as relevantly defined. However, in
Doctrine’ in NSW Local Government and Environmental Planning Law” (2006) 12 LGLJ 16.
2
Green L, Judge and Jury (Kansas City MO: Vernon Law Book Co, 1930), p 270.
3
McMillan J, “Developments under the ADJR Act: The Grounds of Review” (1991) 20 FL Rev 50
at 51.
4
Dickinson J, Administrative Justice and the Supremacy of Law (Cambridge MA: Harvard
University Press, 1927), p 55.
5
(1996) 186 CLR 389.
6
(1996) 186 CLR 389 at 394 per Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ.
7
Azzopardi v Tasman UEB Industries Ltd [1985] 4 NSWLR 139 at 156 per Glass JA (Samuels JA
agreeing).

3. 3
order for land to fall or come within the statutory description of “farmland” the
existence of certain factual preconditions or prerequisites set forth in the
definition (for example, the dominant use of the land must be for one or more of
the businesses or industries of farming as described in the statutory provision)
must be established. Certain material facts must therefore be adduced to
establish the existence of those factual preconditions or prerequisites
(“subsidiary questions”)8 before the decision-maker can draw conclusions and
inferences from those facts, not only to determine the extent of its own
jurisdiction but also as to the merits of the particular matter before it. Most
importantly, the decision-maker must go on to decide whether the primary facts,
fully found, come within the statutory description “farmland” and that requires the
decision-maker to draw a conclusion or inference as to whether or not those facts
come within that description.9
In the NSW Court of Appeal decision of Londish v Knox Grammar School10 the
court, in an appeal for error of law from a decision of a judge of the NSW Land
and Environment Court NSW11 which was ultimately dismissed, was called upon
to judicially review the lawfulness of a development consent granted by a local
council to the school for a change of use of certain premises to a “boys' school
residential area”. An “educational establishment”, as defined in the relevantly
applicable environmental planning instrument12 was permissible on the subject
land with consent, but not a “boarding-house”, as defined in the instrument,
which was prohibited. Stein JA (Mason P and Meagher JA agreeing) stated:
In the circumstances of this case, it is apparent that the evidence and material
before the council may have reasonably admitted to more than one conclusion.
The decision reached by council to categorise the development as an “educational
establishment” and not a “boarding house” was one which was reasonably open to
8
Hope v Bathurst City Council (1980) 144 CLR 1 at 3 per Gibbs and Stephen JJ.
9
See, relevantly, Hope v Bathurst City Council (1980) 144 CLR 1 which dealt with the
comparable, though differently worded, provision (viz the definition of “rural land”) as then
contained in s 118(1) of the now repealed Local Government Act 1919 (NSW).
10
(1997) 97 LGERA 1.
11
Talbot J.
12
The Ku-ring-gai Planning Scheme Ordinance.

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it to make and within its discretion. Accordingly, in my opinion the council's
decision is not reviewable by the court.13
Although the approach taken by the Court of Appeal in this case is inconsistent
with more recent, including higher, authority,14 the case is still illustrative of the
often quite complex task involved when local councils and similar bodies are
called upon to determine whether the material facts about some proposed
development bring that development within one category or another.
Often, a case can involve many coalescing “layers” of fact. For example, assume
for the moment that the legislature has set up a special statutory tribunal to
determine the fair rent in respect of a “furnished dwelling-house”. Now, whether a
particular building is a dwelling-house, and whether it is furnished, are questions
of jurisdictional fact, because those facts must be established as conditions
precedent for the tribunal to exercise its jurisdiction. However, whether or not
there is a “furnished dwelling-house” (the ultimate question of fact) involves the
following questions of primary fact, all of which are logically interconnected on
the same level of observability and being:15
1. Is there a “structure” (that is, something built up of component
parts)?16
2. If so, is there a structure in the nature of a “building” (a question of fat
and degree in each particular case)?17
13
(1997) 97 LGERA 1 at 8. See also Bentham v Kiama Council (1986) 59 LGRA 94 at 98.
14
See, particularly, Timbarra Protection Coalition v Ross Mining NL (1999) 46 NSWLR 55; 102
LGERA 52; Corporation of the City of Enfield v Development Assessment Commission (2000)
199 CLR 135; Chambers v Maclean Shire Council (2003) 57 NSWLR 152; 126 LGERA 7.
15
As John Anderson often pointed out, a fact can be explained only as following logically from
other facts on the same level or order of observability and being.
16
See R v Lowe (1954) 19 LGR (NSW) 348.
17
In R v Lowe (1954) 19 LGR (NSW) 348 the NSW Court of Criminal Appeal appeared to treat
the terms “building” and “structure” as synonymous. Nevertheless, in the majority of cases the
courts generally approach the matter by asking whether the “structure” in question is of the type
intended to be caught by the building/development control provisions of the relevantly applicable
enactment. Essentially, it is a question of fact and degree in each particular case: see Lavy v
London County Council [1895] 2 QB 577 in which it was held that what in any particular case
amounts to a “building”, “structure” or “erection” is, not surprisingly, a question of fact. Thus, in
Mulcahy v Blue Mountains City Council (1993) 81 LGERA 302 it was held that if words such as
“structure” and “erect” were given their literal meaning (cf Lowe) the approval requirement would

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3. If so, does the building comprise a “dwelling” (that is, “a room or suite
or suite of rooms occupied or used or so constructed or adapted as
to be capable of being occupied or used as a separate domicile”)?18
4. If so, and leaving aside what are known as dual occupancies, semi-
detached dwellings and the like for the moment, is the dwelling
separate from any other such dwelling such that it is a “dwelling-
house” (that is, “a building containing 1 but not more than 1
dwelling”)?19
5. If so, is the dwelling-house “furnished”?20
Facts need to be adduced to prove all of the above matters. The adduced facts
comprise what are known as the basic or primary facts (facta probantia), being
those basic facts that must be adduced to prove or disprove the ultimate question
of fact. Those basic or primary facts have been judicially described as being
“facts which are observed by witnesses and proved by oral testimony or facts
proved by the production of the things itself, such as original documents”.21
In Hayes v Federal Commissioner of Taxation22 Fullagar J said:
Where the factum probandum involves a term used in a statute, the question
whether the accepted facta probantia establish that factum probandum will
generally - so far as I can see, always - be a question of law.23
apply in a whole range of situations that were never envisaged and the administration of the
approvals process would become unworkable.
18
See, relevantly, the definition of “dwelling” in cl 4(1) of the Environmental Planning and
Assessment Model Provisions 1980 (NSW).
19
See, relevantly, the definition of “dwelling-house” in cl 4(1) of the Environmental Planning and
Assessment Model Provisions 1980 (NSW).
20
Again, this is obviously a question of fact. However, there is, in fact, a wide divergence of
judicial and other opinion as to the meaning to be given to the word “furniture”. What is
presumably intended here is “whatever must be supplied to a house, a room, or the like, to make
it habitable, convenient, or agreeable … whatever is added to the interior of a house … for use or
convenience”: Black’s Law Dictionary 804 (4th ed rev 1968) (citing Bell’s Adm’x v Golding, 27 Ind
173 (1866)).
21
British Launderers’ Research Association v Borough of Hendon Rating Authority [1949] 1 KB
462 at 471.
22
(1956) 96 CLR 47.

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An almost identical view was expressed by Lord Parker of Waddington in Farmer
v Cotton’s Trustees:24
… [W]here all the material facts are fully found, and the only question is whether
the facts are such as to bring the case within the provisions properly construed of
some statutory enactment, the question is one of law only.25
With respect, and regrettably, the matter is more complex than that. The
conclusion or inference as to whether or not primary facts, fully found, come
within a statutory description may involve either a question of fact or a question
of law. Hence, some judges have spoken in terms of there being a “mixed
question of law and fact”,26 but, with respect, the matter can usually be
satisfactorily resolved by “splitting” the matter into the separate but related
questions involved, some of which may be questions of fact and others questions
of law.27 Thus, in Hope v Bathurst City Council28 Mason J (with whom Gibbs,
Stephen, Murphy and Aickin JJ agreed) said:
The judgment of Kitto J in NSW Associated Blue-Metal Quarries Ltd v Federal
Commissioner of Taxation [(1956) 94 CLR 309] is illuminating. Kitto J observed
23
(1956) 96 CLR 47 at 51. See also Farmer v Cotton’s Trustees [1915] AC 922 at 932 per Lord
Parker of Waddington; Federal Commissioner of Taxation v Broken Hill South Ltd (1941) 65 CLR
150 at 154 per Rich ACJ; Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47 at 51 per
Fullagar J; Federal Commissioner of Taxation v Miller (1946) 73 CLR 93 at 97 per Latham CJ;
Griffiths v J P Harrison (Watford) Ltd [1963] AC 1 at 15 per Lord Reid; R v Barnet London
Borough Council; Ex parte Nilish Shah [1983] 2 AC 309 at 341. See also Hope v Bathurst City
Council (1980) 144 CLR 1 at 7 per Mason J with whom Gibbs, Stephen, Murphy and Aickin JJ
agreed; Australian National Railways Commission v Collector of Customs (SA) (1985) 8 FCR 264
at 277 per Sheppard and Burchett JJ; cf Hope (1980) 144 CLR 1 at 8; Collector of Customs v
Pozzolanic (1993) 43 FCR 280 at 288.
24
[1915] AC 922.
25
[1915] AC 922 at 932. Federal Commissioner of Taxation v Broken Hill South Ltd (1941) 65
CLR 150 at 154 per Rich ACJ; Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47 at
51 per Fullagar J; Federal Commissioner of Taxation v Miller (1946) 73 CLR 93 at 97 per Latham
CJ; Griffiths v J P Harrison (Watford) Ltd [1963] AC 1 at 15 per Lord Reid; R v Barnet London
Borough Council; Ex parte Nilish Shah [1983] 2 AC 309 at 341. See also Hope v Bathurst City
Council (1980) 144 CLR 1 at 7 per Mason J with whom Gibbs, Stephen, Murphy and Aickin JJ
agreed; Australian National Railways Commission v Collector of Customs (SA) (1985) 8 FCR 264
at 277 per Sheppard and Burchett JJ; cf Hope (1980) 144 CLR 1 at 8; Collector of Customs v
Pozzolanic (1993) 43 FCR 280 at 288.
26
See, eg, NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956)
94 CLR 309 at 511-2 per Kitto J.
27
See Hope v Bathurst City Council (1980) 144 CLR 1 at 7-8 per Mason J with whom Gibbs,
Stephen, Murphy and Aickin JJ agreed.
28
(1980) 144 CLR 1.

7. 7
that the question whether certain operations answered the description "mining
operations upon a mining property" within the meaning of s 122 of the Income
Tax Assessment Act 1936, as amended, was a mixed question of law and fact
[(1956) 94 CLR, at pp 511-512]. He went on to explain why this was so: "First it is
necessary to decide as a matter of law whether the Act uses the expressions
'mining operations' and 'mining property' in any other sense than that which they
have in ordinary speech." Having answered this question in the negative, he
noted that the "common understanding of the words has . . . to be determined" as
"a question of fact". He continued [(1956) 94 CLR, at p 512]:
"The next question must be whether the material before the Court reasonably
admits of different conclusions as to whether the appellant's operations fall
within the ordinary meaning of the words as so determined; and that is a
question of law (1941) 65 CLR, at p 155: see also per Isaacs and Rich JJ in
Australian Slate Quarries Ltd v Federal Commissioner of Taxation (1923) 33
CLR 416, at p 419. If different conclusions are reasonably possible, it is
necessary to decide which is the correct conclusion; and that is a question of
fact: see per Williams J in the Broken Hill South Case [(1941) 65 CLR 150, at
p 160]."29
As will be seen, we have, at the very least, these separate but interconnected
questions:
1. In what sense, legal or otherwise, does the statute use the particular
word or phrase (the “statutory description”)? That is a question of
law.30
2. If the legislative intention is that the word or phrase be given its
“ordinary” meaning, then the meaning of the word or phrase is a
question of fact.31 If, however, the legislative intention is that the word
29
Hope v Bathurst City Council (1980) 144 CLR 1 at 7-8.
30
See NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94
CLR 509 at 511-2; Jedko Game Co v Collector of Customs (NSW) (1987) 12 ALD 491; Edwards
v Bairstow [1956] AC 14; Brutus v Cozens [1973] AC 854; HTV v Prices Commission [1976] ICR
170.
31
See Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60 at 78; Australian Gas Light
Company v Valuer-General (1940) 40 SR (NSW) 126 at 137; Federal Commissioner of Taxation
v Broken Hill South Ltd (1941) 65 CLR 150 at 155; NSW Associated Blue-Metal Quarries Ltd v
Federal Commissioner of Taxation (1956) 94 CLR 509 at 512; Neal v Department of Transport
(1980) 3 ALD 97 at 107-8; Jedko Game Co v Collector of Customs (NSW) (1987) 12 ALD 491;
Bracegirdle v Oxley [1947] KB 349; Brutus v Cozens [1973] AC 854. See also Collector of
Customs v Agfa Gavaert Limited (1996) 186 CLR 389.

8. 8
or phrase be used in its technical “legal” sense, its meaning is a
question of law.32
3. Does the material with respect to the primary facts reasonably admit
of different conclusions or inferences as to whether those facts come
within the ambit of the statutory description? Again, that is a question
of law.33
4. If the answer to Question 2 is yes, what is the “correct” conclusion?
That is a question of fact.34
5. If, however, the answer to Question 2 is no, a question of law is
involved, and, as will be seen, where only one conclusion or
inference can be drawn from a set of primary facts as to whether or
not they come within the ambit of a statutory description, in
circumstances where a contrary decision has been drawn by the
original decision-maker, an error with respect to a question of law
(that is, an error of law) has been committed by the original decision-
maker.35
QUESTIONS OF FACT
32
See Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126 at 137-8;
Lombardo v Federal Commissioner of Taxation (1979) 40 FLR 208 at 215; Commissioners for
Special Purposes of the Income Tax v Pemsel [1891] AC 531 at 580; Edwards v Bairstow [1956]
AC 14.
33
See Australian Slate Quarries Ltd v Federal Commissioner of Taxation (1923) 33 CLR 416 at
419 per Isaacs and Rich JJ; Federal Commissioner of Taxation v Broken Hill South Ltd (1941) 65
CLR 150 at 155 per Starke J.
34
A question of this kind is sometimes referred to as a question of “fact and degree”. See Federal
Commissioner of Taxation v Broken Hill South Ltd (1941) 65 CLR 150 at 160 per William J;
Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509 at
512; Edwards v Bairstow [1956] AC 14 at 33; ACT Construction Ltd v Customs and Excise
Commissioners [1981] 1 WLR 1542 at 1547.
35
See Hope v Bathurst City Council (1980) 144 CLR 1; Londish v Knox Grammar School (1997)
97 LGERA 1. According to Hope, an error of law occurs where there is an absence of primary
evidence for the conclusion of fact reached in that primary facts, fully found, necessarily come
within or outside the statutory description in circumstances where a contrary conclusion has been
reached by the original decision-maker.

9. 9
"There are only facts, i.e., occurrences in space and time," wrote the realist
philosopher John Anderson.36 Be that as it may, what is a question of fact is, at
times, fraught with difficulties. We are know, perhaps intuitively, that facts rarely
speak for themselves, and invariably conclusions and inferences need to be
drawn from primary facts, not only for the purpose of making sense of those facts
but also, more importantly, for the purpose of ascertaining whether or not those
facts come within the ambit of some statutory description, which may take the
form of a word, a phrase, a definition, or whatever. We all know that, all too often,
different people can quite reasonably draw different conclusions and inferences
from the same set of objective facts. Yet, the real problem with subjectivism in
any form is that it presupposes objectivism, that is, the existence of an objective
world of hard-core facts which are “things themselves”. To quote Anderson
again:
We cannot … make any such distinction as between “things as we know them”
and “things themselves”. Unless the former are things themselves, we are not
entitled to speak of things (and hence to speak) at all.37
Nevertheless, the law does appear to recognize that, at least in practice, there is,
at times, a legally meaningful distinction to be made between “things as we know
them” and “things themselves” at least as regards the drawing of conclusions or
inferences from or as to primary facts as well as fact finding in respect of what
are essentially matters of opinion, policy or taste. Matters of the last mentioned
kind are not readily susceptible to review for error of law and, where mistakes
occur with respect to such matters, the errors are ordinarily treated as being
errors of fact and not law.38
However, Anderson does have a point. Even in statutes where the relevantly
applicable “test” to be applied, or “question” to be asked, by the original decision-
maker is subjective, as opposed to objective, in nature (eg where the decision-
36
Anderson J, "Empiricism", in Studies in Empirical Philosophy (Sydney: Angus & Robertson,
1962), p 14.
37
Anderson J, "Empiricism", in Studies in Empirical Philosophy (Sydney: Angus & Robertson,
1962), p 13.
38
See Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194.

10. 10
maker is required to form the “opinion” or be “satisfied” that a person is “unfit”
before having jurisdiction to cancel or revoke that person’s licence), the fact that
the decision-maker forms the opinion or is satisfied that the required state of
affairs (that is, “unfitness” on the part of the person, which is the ultimate
question of fact) exists does not logically imply anything intrinsic to that state of
affairs itself, for nothing is constituted by the relations it has to other things.39
In other words, if the decision-maker specifies something only by the relations it
has to itself or other things (eg person X is “unfit” because I consider person X to
be “unfit” or because person x has acted in the manner Y), we know nothing
about the thing itself that is, whether or not person X is “unfit”, and what is meant
by an “unfit” person). The fact that the decision-maker considers some person to
be “unfit” does not logically imply anything intrinsic to the state of affairs itself nor
does it tell us anything about that state of affairs. To use the fact of the state of
affairs being considered to exist as a determinant or an indication of the
existence of that state of affairs, independent information (in the form of
materially relevant facts) is needed about the sorts of things that enter into the
particular relation, even allowing for the fact that the jurisdictional test is
subjective in nature40 and that what is involved is a special or “particular kind of
jurisdictional fact”41 situation.
So, one or more questions of fact always arise at some point or points in the
decision-making process, and, no matter how complex, those questions are
decidable, and verifiable or falsifiable, once the necessary criteria have been laid
down and the terms of the relevantly applicable legislation are properly
39
See Anderson J, "Realism and Some of its Critics", in Studies in Empirical Philosophy (Sydney:
Angus & Robertson, 1962) in which Anderson wrote, at p 42, that “the thing which is known, or
the ‘object’, is not constituted by the knower or by being known, nor is the thing which knows, or
‘subject’, constituted by knowing or by the known” [original emphasis].
40
See R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd
(1953) 88 CLR 100 in which, although a subjective test of “unfitness” was contained in the
relevant legislation, the High Court, after considering what the word “unfitness” connoted, was still
able to hold on the facts of the particular case that there were no objective grounds for saying that
the particular employer was “unfit”.
41
See Timbarra Protection Coalition v Ross Mining NL (1999) 46 NSWLR 55 at 64 [42].

11. 11
construed. Even an “opinion” or a “state of satisfaction”, if that be the relevant
statutory test, can be said to be “wrong”, admittedly in law, where, for example,
the opinion or state of satisfaction is not capable of being formed by a reasonable
person or is otherwise formed arbitrarily, capriciously, irrationally or by taking into
account irrelevant considerations.42 At the end of the day, opinions and states of
satisfaction are formed with respect to actual or assumed facts.
Now, with due regard to what have otherwise been held to be questions of law,
the following have been held to be or otherwise involve questions of fact:
• a finding of fact43 – thus, the following have been held by the NSW Court
of Appeal44 to involve only an error of fact, at least as regards “primary” as
opposed to “ultimate” questions of fact:
o a “wrong” finding of fact,45
o a “perverse” finding of fact,
o a finding of fact “contrary to the overwhelming weight of the
evidence”,
o a finding of fact “against the evidence and the weight of the
evidence”,
o a finding of fact that “ignores the probative force of the evidence
which is all one way”,
o a finding of fact that “no reasonable person could have made”,
as well as “demonstrably unsound” reasoning at least as regards the
reasoning by which the original decision-maker arrived at the finding of
fact46
42
See R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 430, 432.
43
The determination of the existence of primary facts by evidence is a question of fact: see
Bracegirdle v Oxley [1971] KB 349 at 358.
44
See Azzopardi v Tasman UEB Industries Ltd [1985] 4 NSWLR 139.
45
There is no error of law simply in making a wrong finding of fact: see Minister for Immigration
and Ethnic Affairs v Teo (1995) 57 FCR 194.
46
See Azzopardi v Tasman UEB Industries Ltd [1985] 4 NSWLR 139 at 155-6 per Glass JA
(Samuels JA agreeing); Mahony v Industrial Registrar of New South Wales (1986) 8 NSWLR 1;

12. 12
• the drawing of a conclusion or an inference from or as to a primary fact,
but only if rightly directed in law including correctly understanding the
statutory language (in which case it is a conclusion or an inference of fact
only)47
• whether primary facts, fully found, come within the ambit of a statutory
description in circumstances where divergent conclusions or inferences
can, on the evidence, reasonably be drawn as to whether or not those
facts come within the ambit of a statutory description (at least in
circumstances where the statute uses the words comprising the statutory
description according to their ordinary meaning)48
• whether evidence ought to be accepted,49 and
• the “ordinary” (that is, everyday or common understanding) meaning of a
word or phrase in the English language,50 or its non-legal technical
meaning, where the legislative intention is that the word or phrase be
given its “ordinary” or non-legal technical meaning as the case may be, 51
Haines v Leves (1987) 8 NSWLR 442. However, the making of findings (at least as regards
matters of ultimate fact) or the drawing of conclusions or inferences in the absence of evidence is
an error of law: see Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473; Minister for
Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194; cf Azzopardi.
47
See Edwards v Bairstow [1956] AC 14. Whether conclusions or inferences as to primary facts
can reasonably be drawn on the evidence is a question of law: see Australian Gas Light
Company v Valuer-General (1940) 40 SR (NSW) 126 and Edwards v Bairstow [1956] AC 14.
48
See NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94
CLR 509 at 512; Hope v Bathurst City Council (1980) 144 CLR 1 at 8; Collector of Customs v
Pozzolanic (1993) 43 FCR 280 at 288; Edwards v Bairstow [1956] AC 14 at 33; Brutus v Cozens
[1973] AC 854; ACT Construction Ltd v Customs and Excise Commissioners [1981] 1 WLR 1542
at 1547; cf Farmer v Cotton’s Trustees [1915] AC 922 at 932 per Lord Parker of Waddington;
Federal Commissioner of Taxation v Broken Hill South Ltd (1941) 65 CLR 150 at 154 per Rich
ACJ; Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47 at 51 per Fullagar J; Federal
Commissioner of Taxation v Miller (1946) 73 CLR 93 at 97 per Latham CJ; Griffiths v J P
Harrison (Watford) Ltd [1963] AC 1 at 15 per Lord Reid.
49
See Azzopardi v Tasman UEB Industries Ltd [1985] 4 NSWLR 139.
50
That is, a word or phrase the meaning of which is commonly understood. See Australian Gas
Light Company v Valuer-General (1940) 40 SR (NSW) 126 at 137; Federal Commissioner of
Taxation v Broken Hill South Ltd (1941) 65 CLR 150 at 155; Bracegirdle v Oxley [1947] KB 349;
Brutus v Cozens [1973] AC 854. For example, in the Broken Hill South case it was held that the
common understanding of the words “mining operations”, where appearing in the Income Tax
Assessment Act 1936 (Cth), was a question of fact.
51
See Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60 at 78; Australian Gas Light
Company v Valuer-General (1940) 40 SR (NSW) 126 at 137; Federal Commissioner of Taxation

13. 13
as well as the meaning of a word or phrase the meaning of which is a
matter of degree.52
As regards the range of matters listed in the first and second dot points above, at
least as regards findings of primary fact and the drawing of conclusions or
inferences from those facts, the courts are generally very slow to interfere with
erroneous findings, conclusions or inferences,53 and where the drawing of a
conclusion or an inference involves a question of degree upon which reasonable
persons may differ, the conclusion or inference is ordinarily said to be one of fact
and not of law.54
The judicial authorities are disharmonious on the very important matter referred
to in the third dot point above, namely, whether primary facts, fully found, come
within the ambit of a statutory description is a question of fact or one of law.
However, in most of the cases in which that question has been held to be one of
law, the court appeared to be satisfied that only one conclusion could be drawn
from the primary facts, fully found, as to whether or not those facts came within
the ambit of a statutory description in circumstances where the original decision-
maker had come to a contrary conclusion, and it is on that basis that one can
resolve much of the conflict in the judicial authorities.55 Other “question of law”
cases can be resolved on the basis that the statute appeared to use the words
v Broken Hill South Ltd (1941) 65 CLR 150 at 155; NSW Associated Blue-Metal Quarries Ltd v
Federal Commissioner of Taxation (1956) 94 CLR 509 at 512; Neal v Department of Transport
(1980) 3 ALD 97 at 107-8; Jedko Game Co v Collector of Customs (NSW) (1987) 12 ALD 491;
Bracegirdle v Oxley [1947] KB 349; Brutus v Cozens [1973] AC 854. See also Collector of
Customs v Agfa Gavaert Limited (1996) 186 CLR 389.
52
See Bracegirdle v Oxley [1947] KB 349 at 358; Federal Commissioner of Taxation v Miller
(1946) 73 CLR 93 at 101, 103-4.
53
See Bendles Motors Ltd v Bristol Corporation [1963] 1 WLR 247 and Azzopardi v Tasman UEB
Industries Ltd [1985] 4 NSWLR 139.
54
See Federal Commissioner of Taxation v Miller (1946) 73 CLR 93; Bendles Motors Ltd v Bristol
Corporation [1963] 1 WLR 247.
55
Farmer v Cotton’s Trustees [1915] AC 922 at 932 per Lord Parker of Waddington; Federal
Commissioner of Taxation v Broken Hill South Ltd (1941) 65 CLR 150 at 154 per Rich ACJ;
Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47 at 51 per Fullagar J; Federal
Commissioner of Taxation v Miller (1946) 73 CLR 93 at 97 per Latham CJ; Griffiths v J P
Harrison (Watford) Ltd [1963] AC 1 at 15 per Lord Reid.

14. 14
comprising the statutory description in a sense other than their ordinary
meaning.56
The following are highly likely to be questions of fact, but much will depend upon
the circumstances of the particular case:
• a question on which reasonable persons could quite reasonably arrive at
divergent conclusions57
• a question which the original decision-maker is “peculiarly fitted to
decide”58 or one in respect of which the reviewing court would find it very
difficult to form an independent opinion without hearing all of the
evidence.59
QUESTIONS OF LAW
In the absence of a statutory right of appeal for errors of all kinds, an error of fact
is unreviewable under the general law, unless the fact be a “jurisdictional fact” in
which case the error made is not one of fact in any event. At common law, only
errors of law are potentially reviewable, and ordinarily only those that are
adjudged to be “jurisdictional”.60
However, as Hotop has aptly noted, “because the precise distinction between
questions of fact and questions of law is far from clear, the courts are able to affix
the labels ‘law’ or ‘fact’ in accordance with their inclination or disinclination to
56
See, eg, Edwards v Bairstow [1956] AC 14.
57
See Federal Commissioner of Taxation v Miller (1946) 73 CLR 93.
58
Federal Commissioner of Taxation v Broken Hill South Ltd (1941) 65 CLR 150 at 159 per
McTiernan J.
59
De Smith SA, Constitutional and Administrative Law (Penguin Books, 1971), p 556.
60
This is subject to the grounds of judicial review known as error of law on the face of the record
(if it be available) as well as the doctrine of extended jurisdictional error which deems all errors of
law to be jurisdictional and therefore reviewable. See Ellis-Jones I, “The Anisminic Doctrine of
Extended Jurisdictional Error in New South Wales Superior Courts” (2007) 12 LGLJ 164.

15. 15
intervene”.61 Furthermore, as the present author has elsewhere pointed out,
when it comes to jurisdictional error Australian superior courts “can categorise
virtually every error of law as jurisdictional and intervene and strike down any
exercise or purported exercise of power which they deem to be an abuse of
power”.62
Be that as it may, and with due regard to what have otherwise been held to be
questions of fact, the following have been held to be or otherwise involve
questions of law:
• “pure” questions of statutory interpretation including but not limited to the
sense, legal or otherwise, in which a statute uses a particular word or
phrase,63 and the determination of whether or not a phrase in a statute is a
composite phrase64
• the meaning of a word or phrase in a statute where that word or phrase is
used in a technical “legal” sense or in circumstances where the
determination of the matter requires legal training65
61
Hotop SD, Principles of Australian Administrative Law, 6th ed (Sydney: Law Book Company,
1985), p 253. See also Emery CT and Smythe B, “Error of Law in Administrative Law” (1984) 100
LGR 612.
62
Ellis-Jones I, The Anisminic Revolution in Australian Administrative Law (Sydney: Local Legal,
1998), p 118.
63
See NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94
CLR 509 at 511-2; Jedko Game Co v Collector of Customs (NSW) (1987) 12 ALD 491; Edwards
v Bairstow [1956] AC 14; Brutus v Cozens [1973] AC 854; HTV v Prices Commission [1976] ICR
170.
64
See Collector of Customs v Agfa Gavaert Limited (1996) 186 CLR 389 at 397 per Brennan CJ,
Dawson, Toohey, Gaudron and McHugh JJ.
65
See Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126 at 137-8; Ex
parte Tooth & Co Ltd; Re Sydney City Council (1962) 80 WN (NSW) 572; Lombardo v Federal
Commissioner of Taxation (1979) 40 FLR 208 at 215; Commissioners for Special Purposes of the
Income Tax v Pemsel [1891] AC 531 at 580; British Launderers’ Research Association v Hendon
Borough Rating Authority [1949] 1 KB 462; Edwards v Bairstow [1956] AC 14. In Ex parte Tooth
& Co Ltd the meaning of the phrase “in the same ownership” in s 309(2) of the now repealed
Local Government Act 1919 (NSW) was held to be a question of law. Similarly, in the last
mentioned case the House of Lords held that the meaning to be given to the words in the phrase
“trade, manufacture, adventure or concern in the nature of trade” in the Income Tax Act 1918 was
a question of law, having regard to its context and “the principles which [the courts] bring to bear
upon the meaning of income”.

16. 16
• the effect or construction of a word or phrase in a statute whose meaning
or interpretation is established66
• whether the original decision-maker has misdirected itself in law including
but not limited to having defined otherwise than in accordance with law the
question of fact to be answered (but only as regards “ultimate” as opposed
to “primary” findings of fact)67
• the drawing of a conclusion or an inference from or as to a primary fact,
but only where not rightly directed in law including but not limited to
incorrectly understanding or otherwise misinterpreting the statutory
language (otherwise it is a conclusion or an inference of fact only)68
• whether conclusions or inferences from or as to primary facts are, on the
evidence, capable of being drawn or can reasonably be drawn69
• the existence or non-existence of a jurisdictional fact70
• whether primary facts, fully found, come within the ambit of a statutory
description, in circumstances where:
o the statute uses the words comprising the statutory description in a
sense other than their ordinary meaning,71 or
o only one conclusion can be drawn from a set of primary facts, as to
whether or not they come within the ambit of a statutory description,
66
See Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60 at 79.
67
See Azzopardi v Tasman UEB Industries Ltd [1985] 4 NSWLR 139 at 156 per Glass JA
(Samuels JA agreeing).
68
See Edwards v Bairstow [1956] AC 14. In that case, it was held that a finding that a particular
transaction was not an “adventure … in the nature of trade” was an inference of fact. No question
or error of law was or could be involved provided the tribunal of fact was rightly directed in law.
69
See Hope v Bathurst City Council (1980) 144 CLR 1; Blackwood Hodge (Australia) Pty Ltd v
Collector of Customs (NSW) (1980) 47 FLR 131; Edwards v Bairstow [1956] AC 14; Griffiths v J
P Harrison (Waterford) Ltd [1963] AC 1 at 19; Ashbridge Investments Ltd v Minister of Housing
and Local Government [1965] 1 WLR 1320 at 1326.
70
See, eg, Timbarra Protection Coalition v Ross Mining NL (1999) 46 NSWLR 55; 102 LGERA
52; Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR
135; Chambers v Maclean Shire Council (2003) 57 NSWLR 152; 126 LGERA 7.
71
See Hope v Bathurst City Council (1980) 144 CLR 1 at 8; Collector of Customs v Pozzolanic
(1993) 43 FCR 280 at 288. See also Collector of Customs v Agfa Gavaert Limited (1996) 186
CLR 389.

17. 17
in circumstances where a contrary decision has been drawn by the
original decision-maker72
• whether primary facts, fully found, are capable of coming within the ambit
of a statutory description,73 including:
o whether the evidence reasonably admits of different conclusions or
inferences as to whether the primary facts come within the ambit of
the statutory description (rightly construed),74 and
o whether a conclusion or an inference that primary facts, fully found,
come within the ambit of a statutory description could reasonably
be drawn,75
the reason being that, before a conclusion or inference is or can be drawn,
there is the preliminary or threshold question of whether the evidence
reasonably admits of different conclusions,76
• whether there is evidence of a particular fact,77 whether the evidence
reasonably admits of different conclusions,78 and whether the evidence is
insufficient to prove a fact,79 and
72
See Hope v Bathurst City Council (1980) 144 CLR 1 and Londish v Knox Grammar School
(1997) 97 LGERA 1. According to Hope, an error of law occurs where there is an absence of
primary evidence for the conclusion of fact reached in that primary facts, fully found, necessarily
come within or outside the statutory description in circumstances where a contrary conclusion has
been reached by the original decision-maker.
73
See Federal Commissioner of Taxation v Miller (1946) 73 CLR 93 at 104 per Dixon J.
74
See NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94
CLR 309 at 512 per Kitto J. See also Australian Slate Quarries Ltd v Federal Commissioner of
Taxation (1923) 33 CLR 416 at 419 per Isaacs and Rich JJ.
75
See Hope v Bathurst City Council (1980) 144 CLR 1 and Australian Gas Light Company v
Valuer-General (1940) 40 SR (NSW) 126.
76
See Federal Commissioner of Taxation v Broken Hill South Ltd (1941) 65 CLR 150.
77
See Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126.
78
See Azzopardi v Tasman UEB Industries Ltd [1985] 4 NSWLR 139.
79
See Azzopardi v Tasman UEB Industries Ltd [1985] 4 NSWLR 139. However, alleged
sufficiency of evidence to the point of conclusiveness cannot amount to an error of law.
Furthermore, whether evidence ought to be accepted in whole or in part is a question of fact.
Azzopardi.

18. 18
• whether the original decision is one that could reasonably have been
made on the evidence adduced.80
Insofar as the matter referred to in the third dot point is concerned, namely, the
effect or construction - as opposed to meaning - of a statutory description whose
meaning or interpretation is established, that has been said to be a question of
law. In that regard, Isaacs J in Life Insurance Co of Australia Ltd v Phillips81 said:
Very different consequences attach according as the ambiguity rests in
construction or in interpretation. Lindley LJ in Chatenay v Brazilian Submarine
Telegraph Company [[1891] 1 QB 79 at 85] employs the same word “construction”
for both ideas, but keeps the ideas distinct. He says:- “The expression
'construction,' as applied to a document, at all events as used by English lawyers,
includes two things: first, the meaning of the words; and, secondly, their legal
effect, or the effect which is to be given to them. The meaning of the words I take
to be a question of fact in all cases, whether we are dealing with a poem or a legal
document. The effect of the words is a question of law.” The “meaning of the
words” is what I call interpretation, whether the words to be interpreted into
ordinary English are foreign words or code words or trade words or mere signs or
even ordinary English words which on examination of surrounding circumstances
turn out to be incomplete. Their effect when translated into complete English is
construction. If that distinction be borne in mind very little difficulty remains.82
More recently, the High Court has called the purported distinction between
“meaning” or “interpretation” (supposedly a question of fact, at least where a
word is used in its ordinary sense) and “effect” or “construction” (supposedly a
question of law) as “artificial, if not illusory”83 especially where, as in the particular
case before the court, there was the issue of whether or not a word or phrase
80
See Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126, Ashbridge
Investments Ltd v Minister of Housing and Local Government [1965] 1 WLR 1320 and Federal
Commissioner of Taxation v Pechey (1975) 5 ALR 352. On the basis of the NSW Court of Appeal
majority decision in Azzopardi v Tasman UEB Industries Ltd [1985] 4 NSWLR 139 erroneous
reception of evidence will amount to error of law, but the original decision will not be upset unless
there has been a “substantial wrong or miscarriage”. Also, the question whether the law, correctly
stated, has been applied to the facts in such a way as has produced a conclusion “not reasonably
open” is probably not a question of law: Azzopardi at 150 per Kirby P and 157 per Glass JA
(Samuels JA agreeing).
81
(1925) 36 CLR 60.
82
(1925) 36 CLR 60 at 78.
83
See Collector of Customs v Agfa Gavaert Limited (1996) 186 CLR 389 at 396 per Brennan CJ,
Dawson, Toohey, Gaudron and McHugh JJ.

19. 19
was used in a trade or technical sense as opposed to having its ordinary
meaning.84 The court went on to say:
The meaning attributed to individual words in a phrase ultimately dictates the effect
or construction that one gives to the phrase when taken as a whole and the
approach that one adopts in determining the meaning of the individual words of
that phrase is bound up in the syntactical construction of the phrase in question.85
As regards the matter referred to in the sixth dot point above, namely, whether
conclusions or inferences from or as to primary facts can reasonably be drawn
on the evidence, it would seem that so long as there is some basis for the
conclusion or inference of fact there is no error of law.86 However, the making of
findings or the drawing of conclusions or inferences in the absence of evidence
or not supported by any reasonable view of the findings of primary fact having
regard to the evidence,87 or in circumstances where the tribunal has otherwise
misdirected itself, is an error of law.88
As already mentioned, some judges (eg Kitto J in NSW Associated Blue-Metal
Quarries Ltd v Federal Commissioner of Taxation)89 have spoken, rather
unhelpfully, in terms of a “mixed question of fact and law”, but the majority of
such instances can satisfactorily be resolved by splitting into 2 or more separate
questions the issues involved, particularly, the sense in which the statute uses
84
See Herbert Adams Pty Ltd v Federal Commissioner of Taxation (1932) 47 CLR 222 at 227 and
Collector of Customs v Bell Basic Industries (1988) 20 FCR 146 157-8 as regards the
construction of revenue statutes that utilize trade or technical terms wherein there is said to be a
presumption in favour of a trade or technical meaning. However, in Collector of Customs v Agfa
Gavaert Limited (1996) 186 CLR 389 at 399 the court, citing D & R Henderson v Collector of
Customs for NSW (1974) 48 ALJR 132 and Bell Basic Industries, stated that any such
presumption did not prevent words used in a revenue statute directed to commerce being
understood in their ordinary meaning. Also, trade meaning and ordinary meaning “do not
necessarily stand at opposite extremities of the interpretative register”, and a composite phrase
may well have an ordinary meaning even though it contains a trade or technical term: Agfa
Gavaert at 401.
85
Collector of Customs v Agfa Gavaert Limited (1996) 186 CLR 389 at 396-7 per Brennan CJ,
Dawson, Toohey, Gaudron and McHugh JJ.
86
See Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.
87
Cf Azzopardi v Tasman UEB Industries Ltd [1985] 4 NSWLR 139.
88
See Sinclair v Mining Warden at Maryborough (1975) (1975) 132 CLR 473, and Bracegirdle v
Oxley [1947] KB 349 per Denning LJ whose judgment tends to establish that conclusions from
primary facts are “sometimes conclusions of fact and sometimes conclusions of law”.
89
(1956) 94 CLR 509.

20. 20
the particular word or phrase (a question of law), the meaning of the word or
phrase (which could be a question of fact or law), the question of whether the
primary fact, fully found, come within the statutory description (which, again,
could be a question of fact or law), and the question whether those facts are
capable of coming within that description (a question of law).90
CONCLUSION
The fact/law distinction will always be with us for so long as reviewing courts
seek to make a distinction between “matters within jurisdiction” (that is, matters
that are non-reviewable) and “matters outside jurisdiction” (that is, matters that
are reviewable), and also for so long as legislatures wish to confine statutory
rights of appeal to only errors of law.
Although there no test of universal application has as yet been formulated by
Australian superior courts, seminal cases such as NSW Associated Blue-Metal
Quarries Ltd v Federal Commissioner of Taxation,91 Hope v Bathurst City
Council92 and Azzopardi v Tasman UEB Industries Ltd93 have, to a very large
extent, resolved much of the confusion which previously existed. However, the
fact remains - and it is a fact - that reviewing courts still have the ability to
massage what otherwise would be an unreviewable question of fact into a
reviewable question of law except perhaps as regards “pure” questions of fact
finding with respect to primary facts where nothing else is involved that might
otherwise give rise to a question of law,94 in which case it truly may be said,
“neither was there any error or fault found”.95
90
See, eg, Federal Commissioner of Taxation v Miller (1946) 73 CLR 93 at 104 per Dixon J.
91
(1956) 94 CLR 309.
92
(1980) 144 CLR 1.
93
[1985] 4 NSWLR 139.
94
See Azzopardi v Tasman UEB Industries Ltd [1985] 4 NSWLR 139 at 155-6 per Glass JA
(Samuels JA agreeing).
95
Daniel 6:4 (AV).

21. 21