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Question of law v question of fact

Assadourian v RTA [2011] NSWSC 1052. Rothman J.

29 The classic relevant expression of the discrimination between question of law and question of fact derives from the statement of Jordan CJ (with whom Halse Rogers J agreed) in Australian Gaslight Co v Valuer-General (1940) SR (NSW) 126:

"In cases in which an appellate tribunal has jurisdiction to determine only questions of law, the following rules appear to be established by the authorities:

(1) The question what is the meaning of an ordinary English word or phrase as used in the Statute is one of fact, not of law. This question is to be resolved by the relevant tribunal itself, by considering the word in its context with the assistance of dictionaries and other books, and not by expert evidence; although evidence is receivable as to the meaning of technical terms; and the meaning of a technical legal term is a question of law: Commissioners for Special Purposes of Income Tax v Pemsel.
(2) The question whether a particular set of facts comes within the description of such a word or phrase is one of fact.
(3) A finding of fact by a tribunal of fact cannot be disturbed if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its finding, and there is evidence capable of supporting its inferences.
(4) Such a finding can be disturbed only (a) if there is no evidence to support its inferences, or (b) if the facts inferred by it and supported by evidence are incapable of justifying the finding of fact based upon those inferences. Thus, if the facts inferred by the tribunal from the evidence before it are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law. If, however, the facts so inferred are capable of being regarded as either within or without the description, according to the relative significance attached to them, a decision either way by a tribunal of fact cannot be disturbed by a superior Court which can determine only questions of law." (Citations omitted.)

See also Collector of Customs v Agfa Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 at 395; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; Ormwave Pty Limited v Smith [2007] NSWCA 210; (2007) 5 DDCR 180.

30 Two relevant aspects should be stressed in relation to the foregoing. First, whether a particular set of facts comes within the description of a word or phrase that is an ordinary English word or phrase is a question of fact, not a question of law. Further, even if the terms of a statute were not ordinary English words and those terms required a legal construction, it is only in circumstances where the Court is posed the question whether the facts as established necessarily take them outside the words as construed (or necessarily renders them within the words to be construed) that a question of law arises.


38 The question purportedly referred by the parties in these proceedings is a conclusion of fact. It remains so, even though the primary facts are agreed. The conclusion of fact may involve a question of law, namely, the proper construction of "tow truck operator" or "carry on business as a tow truck operator", but the question posed is not itself a question of law and is incapable of reference under s 79A of the ADT Act. Moreover, even though there may be an error of law if and when a decision of the ADT emanates, that is not the determinant of whether there is a question of law that is capable of being referred: Edyp & Ors v Brazbuild Pty Ltd [2011] NSWCA 218 at [35] per Allsop P.


 See also:  

Commissioner of Taxation v Crown Insurance Services Ltd [2012] FCAFC 153 paragraphs 23+

* Also, Question of law, Glass JA in Azzopardi >>


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