HARROW TRUST v ADELAIDE HEBREW CONGREGATION INC & CITY OF BURNSIDE No. SCCIV-02-753 [2002] SASC 308

Ground 1 of the respondent's intended cross-appeal alleges that there was no basis on which the Court could reach the conclusion recited above. Ground 2 alleges that the Court erred in placing weight on the evidence of Dr Marshall that the proposed development would pose no special risk to the children at the Massada College, challenging Dr Marshall's expertise in assessing the alleged risks to children.

Ground 3 attacks the rejection by the Court of the evidence of Professor Briggs, which rejection was based on alleged weaknesses in the research on which she had based her opinion. Ground 4 alleges that the Court failed to place sufficient weight on the evidence of Professor Briggs and on the research and studies on which her opinion was based. Ground 5 challenges a finding of the Court that even if it were accepted that the incidence of sexual abuse of children with intellectual disability is significantly greater than for others, it did not necessarily follow that the young men chosen to reside in the proposed development had been sexually abused or, that even if they had been abused, they would exhibit sexually abusive behaviour themselves. Finally, Ground 6 sought to rely on the evidence of Professor Briggs in support of its other grounds of appeal.

In making the finding that it did, the Court rejected the evidence of Professor Briggs to the following effect, as summarized by the Court at [37]:

"(a) people with an intellectual disability are significantly more likely to have been sexually abused during their childhood;

(b) people who have been sexually abused are more likely to engage in sexually abusive behaviour than those who have not;

(c) given that the men to be housed in the proposed development are significantly more likely to have experienced sexual abuse during their childhood (possibly with inadequate sexuality education and without relevant treatment), there is an increased risk that they will commit sex offences with children; and

(d) that being the case, it is inappropriate to site the proposed development in close proximity to a school and a community centre used by children and young people."

The Court rejected Professor Biggs' reasoning on a number of grounds, including the fact that the research on which she relied was flawed for various reasons which the Court explained, and in respect of which the Court preferred the evidence of Dr Nankervis, Dr Matthews, Mr Bruggemann and Mr Byass. The grounds of appeal, in effect, complained about the rejection of Professor Briggs' evidence and claimed that it should have been accepted.

The distinction between a question of law and a question of fact has troubled the courts on many occasions. As the Full Court of the High Court said in Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 at 394:

"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."

Mr Hayes QC, for the first respondent, argued that the application of any given facts to a term used in a statute or, in this case, the Development Plan, involved a question of law. The respondent's objection was said to be founded on relevant provisions of the Development Plan which included the relevant Zone Objective No 4:

"Objective 4: A zone where a diverse range of land uses can coincide in harmony with no adverse impacts on one another."

together with Principle 9 of the relevant Zone Principles as follows:

"Principle 9: Residential development within the zone should:

(a) create a safe, pleasant and convenient place in which to live; ..."

In Collector of Customs v Agfa- Gavaert Ltd (supra) the High Court said, at 394 - 395:

"In Hayes v Federal Commissioner of Taxation [1956] HCA 21; (1956) 96 CLR 47, Fullagar J emphasised the distinction between the factum probandum (the ultimate fact in issue) and the facta probantia (the facts adduced to prove or disprove that ultimate fact). His Honour 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.'

In Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280, the Full Federal Court spoke of the distinction between law and fact in a statutory context as resting upon 'value judgment[s] about the range of [an] Act' which, the Court said, necessarily raised questions of law.

Some recent Federal Court decisions have attempted to distil the numerous authorities on the problem into a number of general propositions. Thus in Pozzolanic, after referring to many cases, the Court identified five general propositions:

'1. The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law.

2. The ordinary meaning of a word or its non-legal technical meaning is a question of fact.

3. The meaning of a technical legal term is a question of law.

4. The effect or construction of a term whose meaning or interpretation is established is a question of law.

5. The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law.'

In Pozzolanic, the Full Court qualified the fifth proposition. The Court said that, when a statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts of the case fall within those words, the question as to whether they do or do not is one of fact."

It may be doubted that the provisions of the Development Plan are to be interpreted as if they were a statute. They do no more than they purport to do, namely express objectives and general principles, rather than words of prescription or proscription generally found in a statute. However, for present purposes I am content to assume that they should be so treated. The words used in the extracts I have quoted are ordinary English words with no particular legal or technical meaning. Whether a given set of facts comes within the terms of those words will be a question of fact. The Court rejected Professor Briggs' opinion based on the evidence of other experts. That evidence demonstrated, in the opinion of the Court, that the surveys relied upon by Professor Briggs were either not relevant to the intended residents or were otherwise flawed. It was open to the Commissioner comprising the Court to reject Professor Briggs' evidence for the reasons that he gave. Having rejected that evidence he concluded that there was no material risk to children. He applied the ordinary English meaning of the words in the Development Plan. It was reasonably open to him to hold, having rejected that evidence, that the facts of the case fell within the relevant requirements of the Development Plan, and that there was no failure to comply with the plain English requirements of the Plan. All that could only amount to a finding of fact, and does not give rise to a question of law.

Mr Hayes also argued that where inferences are to be drawn from primary facts as to the factum probandum, that also gives rise to a question of law. I reject that argument. The fact that an appellate court is free is draw its own inferences of fact (Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531) does not convert what is a finding of fact into a question of law. The drawing of inferences from other primary facts will generally only constitute the finding of facts.

The first respondent also argued that the Commissioner misunderstood and misapplied the expert evidence, and sought to elevate that to a question of law. It is not apparent to me that there was any such misunderstanding by the Commissioner, but even if there was, that could only give rise to an error of fact and not a question of law.

The cross-appeal raises no question of law but only a question of fact, and the appeal therefore requires the leave of the Court.

This Court has properly set its face against prescribing criteria against which an application for leave to appeal from the Court should be determined. The Act does not specify any criteria. In Marion City Corporation v Kassere Pty Ltd (1995) 86 LGERA 41, Olsson J, when speaking of s 30 of the Act said, at 42 - 43:

"The last-mentioned section stipulates that an appeal lies as of right on a question of law and by leave on a question of fact. Particularly in the types of case which tend to arise in planning litigation it is not always the situation that a clear cut division can be drawn between questions of law and fact. The issues sought to be debated often give rise to questions of mixed fact and law. Moreover, it is also frequently the case that planning appeals raise issues - whether of fact or law - which are both difficult and of considerable importance, not only to the immediate parties, but also the public at large.

For those reasons I would decline to attempt to express any criteria as sought in the second question posed by the case stated. Not only would it be extremely difficult to do so, but I consider that, where the statute leaves the statutory discretion to grant leave to appeal at large (where leave is required), it is inappropriate for this Court to attempt to lay down criteria which would, potentially, have the effect of restricting that discretion. Patently each case will need to be examined on its own merits, given that, no doubt, it will be necessary to bear in mind the specialist nature of the Environment, Resources and Development Court and the type of policy adopted by this Court in relation to the Planning Act 1982 (SA) in Transfield (Adelaide) Pty Ltd v Port Augusta City Corporation (1982) 29 SASR 467; 49 LGRA 52, although it must be firmly borne in mind that the rights of appeal conferred by the Environment, Resources and Development Court Act are not expressed in terms precisely similar to the relevant provisions which were contained in the Planning Act."

The granting or refusal of leave will depend on the application of a range of discretionary considerations. They will include, but will not necessarily be limited to, whether there is an arguable case, whether a question of principle may be involved, the significance of the development itself, its importance to the parties and its impact on the locality. Consideration will sometimes include the way the parties have treated the particular issue in the court below and before the planning authority.

In this case I consider that the first respondent has no reasonably arguable case. The conclusion reached by the Commissioner on the evidence was open to him. The findings he made as to the flaws in Professor Briggs' evidence were not only open, but appear to have been compelling. There was no detectable flaw in the Commissioner's reasons or in his treatment of the expert evidence. There was no finding of fact at odds with the uncontested evidence. There is therefore no ground on which an appellate court could justifiably interfere.

It is the Presiding Member of the Court who determines how the Court will be constituted for a particular matter or class of matters. That may include sitting as a full bench, a Judge, a magistrate or commissioner sitting alone or two or more commissioners: s 15(1) of the Act. It is of some significance that the Presiding Member did not consider the issue which arose in this case was sufficiently important to be dealt with by a full bench. Notwithstanding that, the first respondent requested that the matter be head by a full bench at a pre-hearing conference. Section 15(2) of the Act provides that in those circumstances the Court will only be constituted of a full bench if both parties make the request and the Presiding Member is of the opinion that the questions to be determined by the Court "are of such importance that they should be determined by a full bench of the Court". The matter failed the first of those two tests. There is nothing to suggest that it would have met the second.

The issue debated in this case was confined to its own facts. It is not likely to arise in any other case. It is not an issue that raises important questions of planning law or practice, or the location generally of facilities of this nature in the community. It has no importance beyond the interests of the immediate parties.

It is also significant that the safety issue was not raised in the approval process until very late in the proceedings. It was not a ground of objection before the Council. It was not specifically raised in the grounds of appeal to the Court. The hearing of the appeal was adjourned because Professor Briggs' statement which raised the issues was only served shortly before the hearing was due to commence. That again is some indication of the significance of the issue.

I also take into account that the first respondent's cross-appeal appears to have been merely a reaction to the appeal by the appellant. I have already decided that this is a case which required leave to appeal under s 30(2) of the Act. Rule 96AA.02 of the Supreme Court Rules requires that an application for leave to appeal be brought upon summons issued within 14 days of the making of the order complained of. Rule 96AA.04 provides that the appeal, in this case, is to be governed by Rule 97. Rule 97.07 provides that where a respondent to an appeal governed by Ruled 97 wishes to appeal from the whole or any part of the decision appealed from, he or she must file a notice of cross-appeal within 14 days of the service of the notice of appeal on him or her. However, that cannot dispense with the requirement for leave under s 30 of the Act.

It is not necessary to decide the point in this case, but there is a real question as to whether the first respondent requires an extension of time within which to bring its application for leave to appeal. It does not have an appeal as of right merely because its opponent has already filed a notice of appeal. In this case the notice of cross-appeal, followed subsequently by a summons seeking leave to appeal, was filed well after the 14 day period contemplated by Rule 96AA.02, and 13 days after the filing by the appellant of its notice of appeal. If it was serious in its appeal, it would be unlikely to take a possible risk of being out of time by waiting to see if its opponent instituted an appeal. This is all the more so when the issue raised on the cross-appeal is quite separate from that raised on the appeal. It is not as though the cross-appeal raises an issue which is at all relevant to the consideration of the appellant's appeal. The appellant's appeal is confined to the application of the relevant provisions of the Act on the question of costs only. It is not as though the cross-appeal results in some alternative contention on an issue raised by the appeal. The cross-appeal has all the hallmarks of a tactical response only to an appeal instituted by the appellant.

Finally, there is the question of the identity of the first respondent. The issue concerned was the safety of children, particularly children attending the Massada College. Massada College was not itself an appellant before the Court and is not an appellant in this Court. It is an organization independent of the first respondent. It even sought to disassociate itself from some of the submissions made by the first respondent to the Council. It is significant that the College, which one might have thought would have a greater interest in matters of child safety than the first respondent, did not see fit to participate in the proceedings.

For all these reasons I considered that it was inappropriate to grant leave to appeal.

[1] Adelaide Hebrew Congregation Inc v City of Burnside and Harrow Trust (ERDC No 1375 of 2001); [2002] SAERDC 19