Questions of Law
28 The subject matter of the applicant's appeal, and its scope, are confined to a question or questions of law. For that reason it is important that the question or questions of law be stated with precision. Further, the notice of appeal, either in the questions of law postulated, or in any accompanying grounds of appeal, should indicate why it is that, if the question of law is answered in the way for which the applicant contends, the appeal should be allowed and other consequential orders sought by the applicant made. The authorities recognise that it may sometimes be appropriate, particularly in appeals brought by self-represented litigants, to afford some latitude in relation to the precision with which the relevant question of law is identified. It may even be appropriate in some cases for the Court to formulate the question in appropriate terms when it is apparent from either the notice of appeal or the applicant's submissions that a question of law does arise. See generally Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315 (Haritos).
29 The applicant purports to identify in her amended notice of appeal 16 questions of law said to arise from the Authority's decision. There are difficulties with the way in which the questions of law have been framed in this case. For example, ground 1 implicitly asserts that a question of law arises out of the Authority's decision because a relevant definition appearing in the Deed was misinterpreted or misapplied by the Authority. The difficulty with ground 1 is that it does not identify the alleged error nor does it disclose any link between the alleged error and the Authority's decision.
30 Other questions of law relied on by the applicant suffer from the same vice. In the circumstances, I have looked beyond the notice of appeal to the applicant's written and oral submissions for the purpose of identifying any particular error of law that the applicant can rely on. That task has been made more difficult than it need have been due to the failure on the part of the applicant to clearly identify the provisions said to have been misinterpreted or misapplied and those parts of the Authority's decision in which the postulated error is said to be disclosed. I propose to work through the postulated questions sequentially. Before doing so it is necessary to refer to some important principles.
31 First, of course a pure question of fact does not involve or raise any question of law. However, a mixed question of fact and law may do so if the question is whether the facts as found are within the scope of a statutory provision. However, special considerations apply when the relevant statute uses words according to their common understanding and the question is whether the facts as found fall within those words: see Hope v Bathurst City Council (1980) 144 CLR 1 at 7 per Mason J. In that situation the question that arises is likely to be one of fact rather than law. Whether or not the words used should be given some different meaning may itself constitute a question of law.
32 Secondly, the jurisdiction arising under s 1057 of the Corporations Act is limited to the question or questions of law arising out of the Authority's decision: see Haritos at [85]. In that case the Full Court referred with approval to the following passage in the judgment of the Full Court in Brown v Repatriation Commission (1985) 7 FCR 302 at 304:
The existence of a question of law is not merely a qualifying condition to ground an appeal from a decision of the Tribunal; rather, it and it alone is the subject matter of the appeal, and the ambit of the appeal is confined to it. Although it is necessary in some appeals pursuant to s 107VZZH for this Court to consider the evidence before the Tribunal (for example, where the alleged question of law is that there is no evidence upon which the Tribunal could reasonably support its finding) the court should be cautious before embarking on its own analysis of the evidence where the task of assessing facts has been placed by the legislature in the hands of specialist bodies such as the Tribunal and the Commission which are equipped to deal with them.
33 As the High Court observed in Repatriation Commission v Owens (1996) 70 ALJR 904 (Brennan CJ, Gaudron and Gummow JJ) at 904 when refusing special leave to appeal in a case involving administrative review by the Administrative Appeals Tribunal:
The purpose of limiting an appeal to a question of law is to ensure that the merits of the case are dealt with not by Federal Court but by the Administrative Appeals Tribunal. This distribution of function is critical to the correct operation of the administrative review process.
34 Thirdly, merely to assert that a question of law arises is not to state a question of law: Haritos at [92]-[93]. Whether the appeal raises a question of law is a matter that must be addressed as a matter of substance. As the Full Court said in Haritos at [94]:
In our opinion, the issue must be approached as one of substance. In cases of doubt, the Court should consider the notice of appeal, the alleged question or questions of law, the grounds raised, the statutory context, and the Tribunal's reasons for its decision, and having considered all those matters, satisfy itself that there is in fact a question of law.
As I will explain, most of the questions that the applicant describes as questions of law either do not in fact arise or are properly characterised as questions of fact.
35 Fourthly, a finding of fact may be affected by an error of law if the Authority has failed to take into account a relevant matter, or had regard to an irrelevant matter, or if the decision is unreasonable in the legal sense of that word: Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6 at 12-13 per Davies and Beazley JJ (with whom Hill J agreed). In a passage approved by the Full Court in Haritos, Davies and Beazley JJ said at 12-13:
Thus, it is primarily a question of fact, not of law, as to what is the meaning of an ordinary English word or phrase as used in a statute in its ordinary sense and so also is the question whether, there being different conclusions reasonably open, a particular set of facts comes within the description of such a word or phrase. This principle was enunciated in detail and explained by Jordan CJ in Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 137-138 and by Mason J in Hope v Bathurst City Council (1980) 144 CLR 1 at 7-8. The principle was followed by Beaumont and Burchett JJ in Jedko Game Co Pty Ltd v Collector of Customs (NSW) (unreported, Federal Court, 10 March 1987); noted 12 ALD 491.
Even so, in any particular decision, although the decision may be a factual one, all the usual grounds of review will apply for they are regarded as being illustrative of questions of law. Thus a decision-maker may have failed to provide procedural fairness or may have failed to take into account a relevant fact, or may have had regard to an irrelevant matter or the decision may have been so unreasonable that no reasonable decision-maker could have come to it. Examples where Courts have inquired under these principles into the facts found by administrative decision-makers are Commissioner of Taxation (Cth) v McCabe (1990) 26 FCR 431; Bushell v Repatriation Commission (1992) 175 CLR 408.
If the decision-maker adopts a wrong approach to the task, the decision may be set aside and the matter remitted for reconsideration. See Times Consultants Pty Ltd v Collector of Customs (Qld) (1987) 16 FCR 449 and Waterscheid Australia Pty Ltd v Collector of Customs [sc. Walterscheid Aust Pty Ltd v Collector of Customs (1988) 14 ALD 785; (1988) 7 AAR 555]. This may occur if the decision-maker has not applied the well-understood ordinary meaning of a term but has given to it a meaning or qualification of his or her own or if, in the application of terms such as "income", "capital" and "incurred" which appear in the Income Tax Assessment Act 1936 (Cth) and the term with which we are now concerned, "essential character", all of which have been the subject of exposition in reasons of courts, the decision-maker adopts a meaning contrary to that which has been established by legal decisions.
In Commissioner of Taxation v Roberts (1992) 37 FCR 246, the issue fell within the fifth proposition enunciated in Pozzolanic. In Minister for Industry and Commerce v Zyfert (1983) 77 FLR 471, the words of the Tariff which were in question took on a meaning from the context in which they appeared and therefore the construction of the Tariff was in issue. In cases of the latter type, which may involve mixed questions of fact and law, it is necessary to identify whether the administrative decision-maker is alleged to have made an error of law or an error of fact.
(Emphasis added in Haritos at [126])
Those paragraphs illustrate the breadth of the jurisdiction based on the existence of a question of law. For present purposes it is important to note that no question of law arises if on analysis what is alleged to be an error in deciding a mixed question of fact and law involves merely an error of fact not affected by any related error of law. For this reason what might appear to be a question of mixed fact and law (and therefore a question of law) may not give rise to a question of law if on analysis it is apparent that the alleged error was essentially an error in fact finding.