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.
This document summarizes a law journal article that analyzes how courts have applied the Supreme Court's 2006 eBay v. MercExchange decision regarding when permanent injunctions should be granted for patent infringement. It finds that while some early post-eBay cases denied injunctions, courts have increasingly returned to granting injunctions in the majority of cases, especially when the patent holder and infringer are competitors. The article analyzes over 60 post-eBay district court cases between 2006-2009 to examine how the standards for irreparable harm and inadequate legal remedies have evolved over time.
The document discusses the advantages of common law. Common law originated from customs and judicial precedents rather than statutes. It provides fairness as the same legal principles are applied to all people equally. It also provides predictability as current decisions are based on previous judgments. Finally, common law allows for an efficient judicial process as there is an existing framework from precedents to make decisions faster.
This document examines approaches to limiting judicial intervention in statutory construction adjudication in Australia. It discusses how courts have adopted both broad and narrow approaches to jurisdictional facts, with a broad approach supporting the objective of keeping cash flowing but bringing risks of more errant determinations. The document also analyzes legislative silence and inconsistent case law around remitting flawed determinations and severing valid parts. It concludes that an expanded legislative review process, based on Western Australia's legislation, could help reduce tensions between the objective and court involvement by providing alternative relief.
Fact Finding in the Court of Protection 2Rachel Thomas
1) The President dismissed all grounds of appeal from an order made regarding AG, a 30-year-old woman found to lack capacity. The appeal argued the judge should have reassessed AG's capacity and made further factual findings, but the President found no evidence capacity had changed and the factual issues did not need to be resolved.
2) While the local authority initially acted unlawfully in moving AG without court approval, the President agreed with the judge's subsequent decisions regarding AG's residence and contact with her mother based on AG's best interests.
3) The President supported the family court's approach to fact-finding in such cases and affirmed the principles from prior case law should guide the Court of Protection.
A penny saved is a penny earned: Navigating your company through spoliation claims and strategies to maximize recovering attorneys' fees. Presented at the Association of Corporate Counsel.
The Rules Have Changed: Developments that Impact the Landscape of Texas Litig...BoyarMiller
The document summarizes several key developments that have impacted litigation in Texas. These include: narrowing the scope of general personal jurisdiction over non-resident defendants; the availability of Rule 91a motions to dismiss baseless claims and mandatory fee awards for prevailing parties; expanding uses of anti-SLAPP motions to dismiss; recognizing double-derivative shareholder suits for closely-held corporations; clarifying the standard for spoliation jury instructions. The document analyzes important cases related to each development and discusses the implications for litigators in Texas.
This document summarizes a law journal article that analyzes how courts have applied the Supreme Court's 2006 eBay v. MercExchange decision regarding when permanent injunctions should be granted for patent infringement. It finds that while some early post-eBay cases denied injunctions, courts have increasingly returned to granting injunctions in the majority of cases, especially when the patent holder and infringer are competitors. The article analyzes over 60 post-eBay district court cases between 2006-2009 to examine how the standards for irreparable harm and inadequate legal remedies have evolved over time.
The document discusses the advantages of common law. Common law originated from customs and judicial precedents rather than statutes. It provides fairness as the same legal principles are applied to all people equally. It also provides predictability as current decisions are based on previous judgments. Finally, common law allows for an efficient judicial process as there is an existing framework from precedents to make decisions faster.
This document examines approaches to limiting judicial intervention in statutory construction adjudication in Australia. It discusses how courts have adopted both broad and narrow approaches to jurisdictional facts, with a broad approach supporting the objective of keeping cash flowing but bringing risks of more errant determinations. The document also analyzes legislative silence and inconsistent case law around remitting flawed determinations and severing valid parts. It concludes that an expanded legislative review process, based on Western Australia's legislation, could help reduce tensions between the objective and court involvement by providing alternative relief.
Fact Finding in the Court of Protection 2Rachel Thomas
1) The President dismissed all grounds of appeal from an order made regarding AG, a 30-year-old woman found to lack capacity. The appeal argued the judge should have reassessed AG's capacity and made further factual findings, but the President found no evidence capacity had changed and the factual issues did not need to be resolved.
2) While the local authority initially acted unlawfully in moving AG without court approval, the President agreed with the judge's subsequent decisions regarding AG's residence and contact with her mother based on AG's best interests.
3) The President supported the family court's approach to fact-finding in such cases and affirmed the principles from prior case law should guide the Court of Protection.
A penny saved is a penny earned: Navigating your company through spoliation claims and strategies to maximize recovering attorneys' fees. Presented at the Association of Corporate Counsel.
The Rules Have Changed: Developments that Impact the Landscape of Texas Litig...BoyarMiller
The document summarizes several key developments that have impacted litigation in Texas. These include: narrowing the scope of general personal jurisdiction over non-resident defendants; the availability of Rule 91a motions to dismiss baseless claims and mandatory fee awards for prevailing parties; expanding uses of anti-SLAPP motions to dismiss; recognizing double-derivative shareholder suits for closely-held corporations; clarifying the standard for spoliation jury instructions. The document analyzes important cases related to each development and discusses the implications for litigators in Texas.
Commercial & Complex Litigation Newsletter – Hot Topics That Impact Your Busi...CohenGrigsby
In this issue, Successor Liability for Environmental Liabilities by Julie W. Vanneman, PA Adopts the Revised Uniform Arbitration Act: What You Need to Know by Katie R. Jacobs, and The Key to Your CGL Policy: The Misunderstood Word: “Occurrence” by Mark A. May
The Supreme Court issued three decisions on Monday, with two receiving significant media attention. In Graham v. Florida, the Court ruled that life imprisonment without parole for juveniles for non-homicide crimes violates the Eighth Amendment's ban on cruel and unusual punishment. In US v. Comstock, the Court ruled that the federal government can authorize the civil commitment of sexually dangerous persons after they complete their prison terms. The third case, Abbott v. Abbott, addressed whether a parent's "ne exeat right" to veto moving a child to another country qualifies as a "right of custody" under the Hague Convention. In a 6-3 decision, the Court held that a ne exeat right is a right of custody
Contractual Provisions: What Do They Really Mean and How Can They Work for You?BoyarMiller
Andrew Pearce and David Stockel, shareholders in BoyarMiller’s litigation group, discussed what you need to know around contractual provisions – interpretation and legal support behind forum/venue selection clauses, merger clauses, arbitration provisions, prevailing party clauses, jury waivers, and others.
The United States Bankruptcy Court for the Northern District of Texas approved a settlement and compromise agreement between the liquidating trustee, Matthew D. Orwig, and Jack Roubinek. The court considered the trustee's motion and the attached agreement, found it to be in the best interest of the debtor's estate, and granted approval. The trustee is authorized to enter into the settlement agreement with Roubinek.
This document is the spring 2016 issue of the newsletter for the Technology and Construction Bar Association (TECBAR). It contains three articles summarizing recent cases relevant to TECBAR members. The first article analyzes the recent case of Burgess v Lejonvarn and discusses the boundary between contractual and tortious duties. The second article comments on the case of Grove Developments Limited v Balfour Beatty Regional Construction Limited and its clarification of when the Construction Contracts scheme may be implied. The third article provides a case note on the Supreme Court's decision in Cavendish Square Holding BV v Talal El Makdessi, which reassessed the limits of penalties in contracts. The issue also announces that the
THE "JURISDICTIONAL FACT DOCTRINE" IN NEW SOUTH WALES LOCAL GOVERNMENT AND EN...Dr Ian Ellis-Jones
First Published: (2006) 12 LGLJ 16 - 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.
Farah and its progeny - comity among intermediate appellate courtsHannah Vieira
The document explores the complexities surrounding statements in Farah Constructions Pty Ltd v Say-Dee Pty Ltd and subsequent decisions regarding when intermediate appellate courts should depart from each other's decisions on "common law". It considers that:
1) While there is a single common law of Australia, its practical operation can diverge between states due to different intermediate appellate court decisions.
2) Historically, there was not a single common law throughout the British Commonwealth when appeals lay to the Privy Council.
3) The concept of "common law" relates differently to statute, as law has increasingly been codified in Australia since federation.
Common law, equity and statute - limitations and analogiesHannah Vieira
This document discusses the ongoing distinction between common law and equity in legal systems. It makes two key points:
1) Maintaining the distinction between common law and equity is still meaningful, as there are fundamental differences in their methodologies and approaches that continue to inform legal analysis. Fully merging the two areas would require extensive law reform.
2) Common law and equity also differ in their relationship to statutes. Historically, common law saw itself as separate from statutes, while equity was more accepting of them. This difference between common law and equity's reactions to statutes is an important aspect worthy of further analysis.
SKGF_Advisory_Living in a Post KSR World_2007SterneKessler
This document provides an overview of how the Supreme Court's 2007 decision in KSR International Co. v. Teleflex Inc. has impacted obviousness determinations at the Federal Circuit, district courts, and USPTO. Since KSR, the Federal Circuit has found inventions obvious in 6 out of 9 precedential decisions. While some language in opinions remains similar to pre-KSR cases, the standard for determining obviousness is less rigid, with motivation or reason to combine references no longer required to be explicit. District courts are more readily granting summary judgment of obviousness. The USPTO has also been impacted but specifics are still emerging.
The document is a law student's assignment that critically examines the fusion debate between equity and common law in England. It discusses how the Judicature Acts of 1873 and 1875 merged the courts of equity and common law, though some argue this was only administratively and the two systems remain distinct. The assignment also explores the historical development of equity, key cases that established its relationship to common law, and maxims of equity like "equity follows the law." It concludes there is still debate around the appropriate relationship between equity and common law going forward.
PowerPoint presentation on the doctrine of jurisdictional error - for information purposes only - 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.
The document discusses the relationship between judicial precedent and statutory law in England. It argues that the doctrine of judicial precedent is not becoming an illusion, despite the increasing importance of legislation. It examines the concept of ratio decidendi and how precedents are applied and distinguished in subsequent cases. While locating ratio decidendi can be difficult, exceptions allow judges to depart from precedents under certain conditions. Furthermore, statutes and precedents operate complementarily in the English legal system, with vast areas of law still governed solely by case law, and statutes regularly requiring judicial interpretation. Ultimately, the flexibility of the common law system ensures that precedent remains a living and continually developing feature of English law.
A Public Law Tort Understanding Misfeasance In Public OfficeSheila Sinclair
This chapter analyzes the tort of misfeasance in public office under English law. It argues that misfeasance is best understood as a public law tort, rather than a tort law or private law conception. The tort provides recourse for when a public official intentionally injures a member of the public through unlawful conduct in exercising public functions. There are two limbs - one for when a public power is specifically intended to injure the claimant, and one for when an official acts knowing they have no power and it will likely cause loss. The nature of the tort remains contested among academics, though recent cases have clarified its scope and elements.
This document discusses procedural fairness in the context of administrative law. It covers several key topics:
1) Sources of procedural fairness obligations, including the Charter, Canadian Bill of Rights, common law, and statutes.
2) Key Supreme Court of Canada cases that have shaped the modern understanding of procedural fairness, including Nicholson, Baker, and Knight.
3) Factors considered in determining whether and to what extent procedural fairness applies in a given case, such as the nature of the decision, statutory context, and importance to individuals affected.
4) Examples of specific procedural protections, such as the right to a hearing, right to provide oral submissions, and right to respond to allegations.
Fiduciary obligations and breach of confidence examining the high court’s g...Atul
This document examines whether the High Court of Australia provides adequate guidance to lower courts on the development of commercial equity law, specifically regarding fiduciary obligations and breach of confidence. It finds that while the High Court provides clear direction in some cases, other judgments leave ambiguity. It also considers if breach of confidence could be extended to protect consumer privacy but finds the courts reluctant to recognize a general right to privacy without legislative involvement. Overall, the High Court expects lower courts to follow its precedents closely, though not all of its guidance is well-defined, creating some uncertainty lower courts.
This document provides an overview of the general rules for statutory interpretation in India. It discusses various principles and doctrines of interpretation such as literal rule, golden rule, mischief rule, harmonious construction, meaning should be given to every word, doctrine of reading down, ejusdem generis, and noscitur a socitus. It explains these principles with examples from case laws. The document is divided into multiple sections covering what interpretation means, why interpretation of statutes differs, dynamics of literal construction rule, golden rule of purposive construction, mischief rule, and harmonious construction of statutes.
Ministerial override certificates and the law fact distinction – A comparison...Hannah Vieira
The document discusses the approach of courts in Australia and the United Kingdom to Ministerial override certificates and the distinction between questions of fact and law. It summarizes key cases from the UK that established courts will review Ministerial overrides for jurisdictional error, and a Minister cannot simply disagree with an independent tribunal's factual findings without providing additional justification. The UK Supreme Court recently divided on whether a Minister could override a tribunal's decision to disclose certain letters from the Prince of Wales under the Freedom of Information Act.
The Duty to Report under the Criminal Justice Act 2011Catherine Allen
Explains the exercise of the duty to report an offence under the Irish Criminal Justice Act 2011 s.19. Defines the "relevant offence" that will engage the duty, as well as the penalties for failing to report an offence. Explains the difficulties in determining the existence of a "reasonable excuse" and reporting "as soon as it is practicable".
This document discusses how the U.S. Supreme Court's conceptions of stare decisis, or adherence to precedent, influence social change. It argues that some claim the Rehnquist Court used an unprincipled theory of stare decisis to achieve partisan objectives. However, the author concludes that while the Court's jurisprudence shifted rightward, its behavior in reversing precedents is normal and does not undermine the rule of law. The reversals occurred during times of natural instability and membership change on the Court.
Commercial & Complex Litigation Newsletter – Hot Topics That Impact Your Busi...CohenGrigsby
In this issue, Successor Liability for Environmental Liabilities by Julie W. Vanneman, PA Adopts the Revised Uniform Arbitration Act: What You Need to Know by Katie R. Jacobs, and The Key to Your CGL Policy: The Misunderstood Word: “Occurrence” by Mark A. May
The Supreme Court issued three decisions on Monday, with two receiving significant media attention. In Graham v. Florida, the Court ruled that life imprisonment without parole for juveniles for non-homicide crimes violates the Eighth Amendment's ban on cruel and unusual punishment. In US v. Comstock, the Court ruled that the federal government can authorize the civil commitment of sexually dangerous persons after they complete their prison terms. The third case, Abbott v. Abbott, addressed whether a parent's "ne exeat right" to veto moving a child to another country qualifies as a "right of custody" under the Hague Convention. In a 6-3 decision, the Court held that a ne exeat right is a right of custody
Contractual Provisions: What Do They Really Mean and How Can They Work for You?BoyarMiller
Andrew Pearce and David Stockel, shareholders in BoyarMiller’s litigation group, discussed what you need to know around contractual provisions – interpretation and legal support behind forum/venue selection clauses, merger clauses, arbitration provisions, prevailing party clauses, jury waivers, and others.
The United States Bankruptcy Court for the Northern District of Texas approved a settlement and compromise agreement between the liquidating trustee, Matthew D. Orwig, and Jack Roubinek. The court considered the trustee's motion and the attached agreement, found it to be in the best interest of the debtor's estate, and granted approval. The trustee is authorized to enter into the settlement agreement with Roubinek.
This document is the spring 2016 issue of the newsletter for the Technology and Construction Bar Association (TECBAR). It contains three articles summarizing recent cases relevant to TECBAR members. The first article analyzes the recent case of Burgess v Lejonvarn and discusses the boundary between contractual and tortious duties. The second article comments on the case of Grove Developments Limited v Balfour Beatty Regional Construction Limited and its clarification of when the Construction Contracts scheme may be implied. The third article provides a case note on the Supreme Court's decision in Cavendish Square Holding BV v Talal El Makdessi, which reassessed the limits of penalties in contracts. The issue also announces that the
THE "JURISDICTIONAL FACT DOCTRINE" IN NEW SOUTH WALES LOCAL GOVERNMENT AND EN...Dr Ian Ellis-Jones
First Published: (2006) 12 LGLJ 16 - 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.
Farah and its progeny - comity among intermediate appellate courtsHannah Vieira
The document explores the complexities surrounding statements in Farah Constructions Pty Ltd v Say-Dee Pty Ltd and subsequent decisions regarding when intermediate appellate courts should depart from each other's decisions on "common law". It considers that:
1) While there is a single common law of Australia, its practical operation can diverge between states due to different intermediate appellate court decisions.
2) Historically, there was not a single common law throughout the British Commonwealth when appeals lay to the Privy Council.
3) The concept of "common law" relates differently to statute, as law has increasingly been codified in Australia since federation.
Common law, equity and statute - limitations and analogiesHannah Vieira
This document discusses the ongoing distinction between common law and equity in legal systems. It makes two key points:
1) Maintaining the distinction between common law and equity is still meaningful, as there are fundamental differences in their methodologies and approaches that continue to inform legal analysis. Fully merging the two areas would require extensive law reform.
2) Common law and equity also differ in their relationship to statutes. Historically, common law saw itself as separate from statutes, while equity was more accepting of them. This difference between common law and equity's reactions to statutes is an important aspect worthy of further analysis.
SKGF_Advisory_Living in a Post KSR World_2007SterneKessler
This document provides an overview of how the Supreme Court's 2007 decision in KSR International Co. v. Teleflex Inc. has impacted obviousness determinations at the Federal Circuit, district courts, and USPTO. Since KSR, the Federal Circuit has found inventions obvious in 6 out of 9 precedential decisions. While some language in opinions remains similar to pre-KSR cases, the standard for determining obviousness is less rigid, with motivation or reason to combine references no longer required to be explicit. District courts are more readily granting summary judgment of obviousness. The USPTO has also been impacted but specifics are still emerging.
The document is a law student's assignment that critically examines the fusion debate between equity and common law in England. It discusses how the Judicature Acts of 1873 and 1875 merged the courts of equity and common law, though some argue this was only administratively and the two systems remain distinct. The assignment also explores the historical development of equity, key cases that established its relationship to common law, and maxims of equity like "equity follows the law." It concludes there is still debate around the appropriate relationship between equity and common law going forward.
PowerPoint presentation on the doctrine of jurisdictional error - for information purposes only - 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.
The document discusses the relationship between judicial precedent and statutory law in England. It argues that the doctrine of judicial precedent is not becoming an illusion, despite the increasing importance of legislation. It examines the concept of ratio decidendi and how precedents are applied and distinguished in subsequent cases. While locating ratio decidendi can be difficult, exceptions allow judges to depart from precedents under certain conditions. Furthermore, statutes and precedents operate complementarily in the English legal system, with vast areas of law still governed solely by case law, and statutes regularly requiring judicial interpretation. Ultimately, the flexibility of the common law system ensures that precedent remains a living and continually developing feature of English law.
A Public Law Tort Understanding Misfeasance In Public OfficeSheila Sinclair
This chapter analyzes the tort of misfeasance in public office under English law. It argues that misfeasance is best understood as a public law tort, rather than a tort law or private law conception. The tort provides recourse for when a public official intentionally injures a member of the public through unlawful conduct in exercising public functions. There are two limbs - one for when a public power is specifically intended to injure the claimant, and one for when an official acts knowing they have no power and it will likely cause loss. The nature of the tort remains contested among academics, though recent cases have clarified its scope and elements.
This document discusses procedural fairness in the context of administrative law. It covers several key topics:
1) Sources of procedural fairness obligations, including the Charter, Canadian Bill of Rights, common law, and statutes.
2) Key Supreme Court of Canada cases that have shaped the modern understanding of procedural fairness, including Nicholson, Baker, and Knight.
3) Factors considered in determining whether and to what extent procedural fairness applies in a given case, such as the nature of the decision, statutory context, and importance to individuals affected.
4) Examples of specific procedural protections, such as the right to a hearing, right to provide oral submissions, and right to respond to allegations.
Fiduciary obligations and breach of confidence examining the high court’s g...Atul
This document examines whether the High Court of Australia provides adequate guidance to lower courts on the development of commercial equity law, specifically regarding fiduciary obligations and breach of confidence. It finds that while the High Court provides clear direction in some cases, other judgments leave ambiguity. It also considers if breach of confidence could be extended to protect consumer privacy but finds the courts reluctant to recognize a general right to privacy without legislative involvement. Overall, the High Court expects lower courts to follow its precedents closely, though not all of its guidance is well-defined, creating some uncertainty lower courts.
This document provides an overview of the general rules for statutory interpretation in India. It discusses various principles and doctrines of interpretation such as literal rule, golden rule, mischief rule, harmonious construction, meaning should be given to every word, doctrine of reading down, ejusdem generis, and noscitur a socitus. It explains these principles with examples from case laws. The document is divided into multiple sections covering what interpretation means, why interpretation of statutes differs, dynamics of literal construction rule, golden rule of purposive construction, mischief rule, and harmonious construction of statutes.
Ministerial override certificates and the law fact distinction – A comparison...Hannah Vieira
The document discusses the approach of courts in Australia and the United Kingdom to Ministerial override certificates and the distinction between questions of fact and law. It summarizes key cases from the UK that established courts will review Ministerial overrides for jurisdictional error, and a Minister cannot simply disagree with an independent tribunal's factual findings without providing additional justification. The UK Supreme Court recently divided on whether a Minister could override a tribunal's decision to disclose certain letters from the Prince of Wales under the Freedom of Information Act.
The Duty to Report under the Criminal Justice Act 2011Catherine Allen
Explains the exercise of the duty to report an offence under the Irish Criminal Justice Act 2011 s.19. Defines the "relevant offence" that will engage the duty, as well as the penalties for failing to report an offence. Explains the difficulties in determining the existence of a "reasonable excuse" and reporting "as soon as it is practicable".
This document discusses how the U.S. Supreme Court's conceptions of stare decisis, or adherence to precedent, influence social change. It argues that some claim the Rehnquist Court used an unprincipled theory of stare decisis to achieve partisan objectives. However, the author concludes that while the Court's jurisprudence shifted rightward, its behavior in reversing precedents is normal and does not undermine the rule of law. The reversals occurred during times of natural instability and membership change on the Court.
THE ANISMINIC DOCTRINE OF EXTENDED JURISDICTIONAL ERROR IN NEW SOUTH WALES SU...Dr Ian Ellis-Jones
First Published: (2007) 12 LGLJ 164 - 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.
This document provides an overview and recommendations for reading materials on contract law, specifically regarding the formation of contracts through offer and acceptance. It recommends McKendrick's Contract Law as the foundation text, along with Poole's Casebook on Contract Law. Further reading includes Furmston's Cheshire, Fifoot and Furmston’s Law of Contract and Beale, Bishop and Furmston Contract: Cases and Materials. The document discusses the objective approach now taken to contract formation and interpretation, and how the intention of parties is inferred rather than being based on actual intentions. It provides context on how the law of offer and acceptance developed criteria for determining if agreement has been reached.
In this scenario, a building collapsed in the Christchurch earthquake, injuring workers inside. Evidence shows the building was poorly constructed and would not have collapsed if it met building standards.
The role of the courts is to resolve legal disputes arising from this situation by applying the legal precedents established by previous similar cases. The role of Parliament is to enact legislation to regulate building standards and prevent such problems in the future.
Case law, or common law, is developed through a hierarchical system of courts. Higher courts set binding precedents that lower courts must follow to promote consistency and predictability in legal decisions.
The document discusses key issues in applying private international law to divorce cases, including multiplicity of forums, recognition of foreign divorce decrees, and India's approach. It notes that multiple countries can have jurisdiction over divorce cases, and recognition of foreign decrees depends on principles of comity and reciprocity. While Indian courts have recognized principles like domicile in divorce cases, the rules are scattered and not codified uniformly, leaving gaps that could allow exploitation. The document argues that India needs coherent legislation to properly deal with divorce and other issues in marriages involving Non-Resident Indians.
Similar to THE EVER ELUSIVE FACT/LAW DISTINCTION (20)
THE PSYCHOLOGIST AND THE MAGICIAN: SOME GOOD ADVICE ON HOW TO SEE LIFE AS IT ...Dr Ian Ellis-Jones
This document summarizes and discusses the short story "The Psychologist and the Magician" by Ernest Christopher Rodwick. It tells the story of a psychologist named Professor Herman von Scholtz who agrees to undergo an "ordeal" with a magician named Marbado in a Himalayan cave. The psychologist must walk through the cave regardless of what he sees, hears, feels or thinks. The story is an allegory about how the mind can be "hypnotized" by illusions and beliefs that have no real power or existence. It illustrates how we identify with mental projections and concepts of self that cause suffering but don't truly exist. By refusing to accept the illusions, the psychologist is able to walk through
THE PHOENIX ISLANDS REPUBLIC OF KIRIBATI: AN ANNOTATED AND ILLUSTRATED CHRONO...Dr Ian Ellis-Jones
An historical and descriptive chronological history of the Phoenix Islands, Republic of Kiribati, with annotations and photographs (5th edn). The first to fourth editions were published sub titulo The Phoenix Islands: An Annotated Chronology.
The document provides a Humanist interpretation of The Lord's Prayer in 3 sentences or less for each line:
Our Father in heaven refers to the one spirit of life in all, making us all brothers and sisters. Your kingdom come suggests working together to create a fairer world where only the common good is pursued. Give us this day our daily bread means seeking only our daily needs and avoiding temptation, cultivating virtue, forgiving others as we wish to be forgiven, and being delivered from evil.
A RATIONAL FAITH: HUMANISM, ENLIGHTENMENT IDEALS, AND UNITARIANISM Dr Ian Ellis-Jones
This document discusses the influence of Humanism and Enlightenment ideals on Unitarianism. It describes how Unitarianism evolved from a Christian denomination rejecting some key doctrines, to a "post-Christian metareligion" or non-religion infused with Humanist principles like reason and tolerance. Unitarianism is presented as a spiritual philosophy and way of life that brings together people of all backgrounds without dogma. The roots and spread of Unitarianism in Australia, Britain, and the United States are briefly outlined.
Letter dated 4 January 1994 from Ian David Ellis-Jones of Turramurra NSW Australia to the Editor of TIME (Australia) Magazine, with Letter of Reply dated 2 February 1994 from Patrick Smith, Editorial Offices, Time Inc, New York, New York, USA. Letter from Ian David Ellis-Jones Copyright 1994 Ian Ellis-Jones. All Rights Reserved.
The document is a humorous fictional dialogue between Bud Abbott and Lou Costello discussing Abbott's mindfulness class. Abbott claims the class taught him to have "no-mind" which he says is a state of wisdom and enlightenment. However, Costello is confused by the concept of having no mind but not being stupid. Their discussion becomes increasingly nonsensical as they try to explain how a mind can be both empty and full, gone but present, engaged but not engaged to anyone.
This document discusses some early Greek philosophers and their ideas that are relevant to mindfulness practice. It examines Thales, Anaximander, and Anaximenes, noting ideas like rejecting supernatural explanations and focusing on observable phenomena. Key lessons for mindfulness are observing the present moment without judgment, seeing contradictions as part of a unified process, and maintaining attention on the breath to allow experiences to naturally arise and pass without fixation. The document suggests these ancient Greek philosophers provide philosophical underpinnings for modern secular mindfulness practice.
This document provides Bible verses and explanations to support the use of spiritual mind treatment and healing. It discusses:
- The power of thought and the mind's ability to create one's reality. Thoughts become things and positive thinking can lead to positive outcomes.
- Many Bible verses are presented that discuss seeking God/the kingdom within, the power of words and decrees, and healing coming from sending forth one's word.
- Spiritual mind treatment works by lifting one's consciousness through affirmative prayer and emotion-charged thinking to manifest desired outcomes. One's mind has the creative power of God and can shape one's experiences.
The document discusses the omnipresence of life and how we are all part of that one life force. It encourages the reader to enter into silence and stillness to experience life as a sacred presence that is closer than our own breathing. It asserts that there is only one eternal life flowing through all of creation, including ourselves, and that we can never be separate from this life force.
PHINEAS P. QUIMBY: THE MODERN WORLD’S FIRST TRUE PSYCHOANALYSTDr Ian Ellis-Jones
Phineas P. Quimby was a 19th century American clockmaker and healer who is considered a pioneer in the fields of alternative healing, mental therapeutics, and psychosomatic medicine. He developed a method of insight-oriented psychotherapy combined with autosuggestion that treated illnesses by addressing the mind-body connection. Quimby's system paved the way for modern psychoanalysis and the understanding that functional illnesses can be caused or influenced by the mind. After recovering from tuberculosis through alternative methods like carriage rides, Quimby began practicing mesmerism and traveling around New England, treating patients and inspiring the development of the New Thought movement.
An Address Delivered at the Spirit of Life Unitarian Fellowship, Kirribilli, New South Wales, Australia, on Sunday, 2 June 2013. Copyright 2013 Ian Ellis-Jones. All Rights Reserved.
This document provides an analysis of the fairy tales Aladdin and His Wonderful Lamp and Jack and the Beanstalk. It suggests that fairy tales contain inner symbolic meanings and lessons. For Aladdin, characters represent aspects of human consciousness, and acquiring the lamp represents achieving spiritual enlightenment. For Jack, climbing the beanstalk represents spiritual ascension, while stealing from the giant represents acquiring virtues. Both tales depict the soul's evolution toward perfection through overcoming challenges.
The document provides an overview of the New Thought movement in Australia. It discusses key figures who helped introduce and spread New Thought ideas in Australia in the late 19th and early 20th centuries, such as Dr James Porter Mills, Anna W Mills, Veni Cooper-Mathieson, Grace Aguilar, and Henry E Aguilar. These individuals established various New Thought organizations, published literature, and helped popularize concepts of mental and spiritual healing. The movement offered new religious and philosophical perspectives that were particularly embraced by women.
The document provides an overview of film noir, including its origins, key characteristics, and classification. It discusses how film noir emerged as a distinct style in American films of the 1940s, influenced by events like the Great Depression, WWII, and hardboiled crime fiction. It also notes the ongoing debate around whether film noir qualifies as a distinct genre or is more of a mood or tone. The document aims to introduce noir aficionados to the topic through various definitions, quotes, and classifications of film noir.
WHAT YOU THINK YOU BECOME: NEW THOUGHT, SELF-HELP AND POPULAR PSYCHOLOGYDr Ian Ellis-Jones
This document provides an overview of New Thought, a religious philosophy that originated in the United States in the 19th century. It discusses how New Thought was influenced by ancient Greek philosophers like Plato and his theory of forms, as well as early Christian thinkers like Origen who emphasized the oneness of God and life. The document also examines how New Thought emerged as an alternative to Protestantism in the late 19th century, gaining popularity through its positive message about using mind power to achieve health, wealth, and happiness. New Thought is defined as affirming the unity of God and humanity and the perfection and immortality of the soul.
An Address to the Sydney Realist Group (‘Sydney Realists’), Sydney, NSW, Australia, on 7 May 2013. Copyright 2013 Ian Ellis-Jones. All Rights Reserved. Published (in three parts) in the journal The Northern Line, No. 15 March 2014 (pp 13-16), No. 16 May 2014 (pp 10-15), and No. 17 July 2014 (pp 9-13). Note: see also the author’s related paper entitled ‘Andersonian Realism and Buddhist Empiricism’, published in the journal The Northern Line, No. 13 October 2012 (pp 2–13), as well as in the journal The Sydney Realist, No. 25 March 2013 (pp. 6–15), and the author’s paper entitled 'John Anderson: Philosopher and Controversialist Extraordinaire'. (The papers are available on SlideShare.)
Leveraging Generative AI to Drive Nonprofit InnovationTechSoup
In this webinar, participants learned how to utilize Generative AI to streamline operations and elevate member engagement. Amazon Web Service experts provided a customer specific use cases and dived into low/no-code tools that are quick and easy to deploy through Amazon Web Service (AWS.)
Walmart Business+ and Spark Good for Nonprofits.pdfTechSoup
"Learn about all the ways Walmart supports nonprofit organizations.
You will hear from Liz Willett, the Head of Nonprofits, and hear about what Walmart is doing to help nonprofits, including Walmart Business and Spark Good. Walmart Business+ is a new offer for nonprofits that offers discounts and also streamlines nonprofits order and expense tracking, saving time and money.
The webinar may also give some examples on how nonprofits can best leverage Walmart Business+.
The event will cover the following::
Walmart Business + (https://business.walmart.com/plus) is a new shopping experience for nonprofits, schools, and local business customers that connects an exclusive online shopping experience to stores. Benefits include free delivery and shipping, a 'Spend Analytics” feature, special discounts, deals and tax-exempt shopping.
Special TechSoup offer for a free 180 days membership, and up to $150 in discounts on eligible orders.
Spark Good (walmart.com/sparkgood) is a charitable platform that enables nonprofits to receive donations directly from customers and associates.
Answers about how you can do more with Walmart!"
This document provides an overview of wound healing, its functions, stages, mechanisms, factors affecting it, and complications.
A wound is a break in the integrity of the skin or tissues, which may be associated with disruption of the structure and function.
Healing is the body’s response to injury in an attempt to restore normal structure and functions.
Healing can occur in two ways: Regeneration and Repair
There are 4 phases of wound healing: hemostasis, inflammation, proliferation, and remodeling. This document also describes the mechanism of wound healing. Factors that affect healing include infection, uncontrolled diabetes, poor nutrition, age, anemia, the presence of foreign bodies, etc.
Complications of wound healing like infection, hyperpigmentation of scar, contractures, and keloid formation.
This presentation was provided by Steph Pollock of The American Psychological Association’s Journals Program, and Damita Snow, of The American Society of Civil Engineers (ASCE), for the initial session of NISO's 2024 Training Series "DEIA in the Scholarly Landscape." Session One: 'Setting Expectations: a DEIA Primer,' was held June 6, 2024.
This presentation includes basic of PCOS their pathology and treatment and also Ayurveda correlation of PCOS and Ayurvedic line of treatment mentioned in classics.
Chapter wise All Notes of First year Basic Civil Engineering.pptxDenish Jangid
Chapter wise All Notes of First year Basic Civil Engineering
Syllabus
Chapter-1
Introduction to objective, scope and outcome the subject
Chapter 2
Introduction: Scope and Specialization of Civil Engineering, Role of civil Engineer in Society, Impact of infrastructural development on economy of country.
Chapter 3
Surveying: Object Principles & Types of Surveying; Site Plans, Plans & Maps; Scales & Unit of different Measurements.
Linear Measurements: Instruments used. Linear Measurement by Tape, Ranging out Survey Lines and overcoming Obstructions; Measurements on sloping ground; Tape corrections, conventional symbols. Angular Measurements: Instruments used; Introduction to Compass Surveying, Bearings and Longitude & Latitude of a Line, Introduction to total station.
Levelling: Instrument used Object of levelling, Methods of levelling in brief, and Contour maps.
Chapter 4
Buildings: Selection of site for Buildings, Layout of Building Plan, Types of buildings, Plinth area, carpet area, floor space index, Introduction to building byelaws, concept of sun light & ventilation. Components of Buildings & their functions, Basic concept of R.C.C., Introduction to types of foundation
Chapter 5
Transportation: Introduction to Transportation Engineering; Traffic and Road Safety: Types and Characteristics of Various Modes of Transportation; Various Road Traffic Signs, Causes of Accidents and Road Safety Measures.
Chapter 6
Environmental Engineering: Environmental Pollution, Environmental Acts and Regulations, Functional Concepts of Ecology, Basics of Species, Biodiversity, Ecosystem, Hydrological Cycle; Chemical Cycles: Carbon, Nitrogen & Phosphorus; Energy Flow in Ecosystems.
Water Pollution: Water Quality standards, Introduction to Treatment & Disposal of Waste Water. Reuse and Saving of Water, Rain Water Harvesting. Solid Waste Management: Classification of Solid Waste, Collection, Transportation and Disposal of Solid. Recycling of Solid Waste: Energy Recovery, Sanitary Landfill, On-Site Sanitation. Air & Noise Pollution: Primary and Secondary air pollutants, Harmful effects of Air Pollution, Control of Air Pollution. . Noise Pollution Harmful Effects of noise pollution, control of noise pollution, Global warming & Climate Change, Ozone depletion, Greenhouse effect
Text Books:
1. Palancharmy, Basic Civil Engineering, McGraw Hill publishers.
2. Satheesh Gopi, Basic Civil Engineering, Pearson Publishers.
3. Ketki Rangwala Dalal, Essentials of Civil Engineering, Charotar Publishing House.
4. BCP, Surveying volume 1
How to Manage Your Lost Opportunities in Odoo 17 CRMCeline George
Odoo 17 CRM allows us to track why we lose sales opportunities with "Lost Reasons." This helps analyze our sales process and identify areas for improvement. Here's how to configure lost reasons in Odoo 17 CRM
it describes the bony anatomy including the femoral head , acetabulum, labrum . also discusses the capsule , ligaments . muscle that act on the hip joint and the range of motion are outlined. factors affecting hip joint stability and weight transmission through the joint are summarized.
Main Java[All of the Base Concepts}.docxadhitya5119
This is part 1 of my Java Learning Journey. This Contains Custom methods, classes, constructors, packages, multithreading , try- catch block, finally block and more.
A review of the growth of the Israel Genealogy Research Association Database Collection for the last 12 months. Our collection is now passed the 3 million mark and still growing. See which archives have contributed the most. See the different types of records we have, and which years have had records added. You can also see what we have for the future.
How to Fix the Import Error in the Odoo 17Celine George
An import error occurs when a program fails to import a module or library, disrupting its execution. In languages like Python, this issue arises when the specified module cannot be found or accessed, hindering the program's functionality. Resolving import errors is crucial for maintaining smooth software operation and uninterrupted development processes.
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.
4. 4
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
5. 5
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.
6. 6
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).