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«2001 Unreasonableness and Error of Law 315 UNREASONABLENESS AND ERROR OF LAW MARK ARONSON* I INTRODUCTION: MIXING FACT AND LAW Judges have long ...»

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2001 Unreasonableness and Error of Law 315




Judges have long denied the existence of a fixed distinction between errors of

law and errors of fact, and legal literature abounds with derision and scorn for

those who attempt it.* The topic nevertheless holds an endless fascination for practising and academic lawyers alike, and even the Commonwealth Parliament has attempted a definition in the context of the Federal Court’s former migration jurisdiction.2 Almost everyone concedes that there is a degree of manipulability in the distinctions between legal and factual errors. The High Court said that the distinction between questions of law and fact is ‘vital’ in many legal contexts, but it also acknowledged that ‘no satisfactory test of universal application has yet been formulated’.3 The clear implication was that the law-fact distinction produces different results in different fields of law.

If the distinction depends on the context, it follows that philosophical4 distinctions are as likely to distract as to assist. Some of the jurisprudential literature starts out confidently enough, with definitions of law and fact. A question of fact involves an inquiry into whether something happened or will * Faculty o f Law, University o f N ew South Wales. The author gratefully acknowledges the comments and assistance o f Sir Gerard Brennan, Arthur Glass, Justice Handley, John McMillan, Robert Shelly and Neil Williams.

See, eg, Leon Green, Judge and Jury (1930) 270-1:

No two terms o f legal science have rendered better service than ‘law’ and ‘fact’. They are basic assumptions; irreducible minimums and the most comprehensive maximums at the same instant.

They readily accommodate themselves to any meaning we desire to give them. In them and their kind a science of law finds its strength and durability. 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.

Migration Act 1958 (Cth) s 476(1 )(e), repealed by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth).

Collector o f Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389, 394.

See Da Costa v R (1968) 118 CLR 186, 194 (Windeyer J): ‘When the distinction [between questions of fact and questions of law] determines whether or not in a particular case an appeal lies, there is room for questioning whether it has in philosophy or logic an essential and


and universal character.’

–  –  –

happen, and is quite separate from any assertion as to its legal effect.5 A question of law involves the identification and interpretation of a norm which is usually of general application. That distinction quickly becomes blurred, however, by the difficulties of classifying the interactions between norm and fact. The difficulties in classifying the application of law to the facts as found occupy the bulk of this article. However, there are further difficulties in classifying the processes leading up to the finding of facts.

Fact-finding inevitably involves a prior knowledge of which facts might be legally relevant. We cannot know which facts to look for unless we know why we are looking, and it is the law which tells us that. The law also requires the conversion of doubts, uncertainties and hidden or explicit assumptions as to how the world works into positive findings of fact.6 For example, a finding in a contract dispute that promises were probably exchanged becomes a finding that they were exchanged, because the legal process itself helps reduce highly contingent factual possibilities into relatively straightforward factual propositions before declaring the legal result.7 Furthermore, in any practical or moral sense, no court could contemplate finding the facts without having some idea of the possible legal consequences of a finding one way or the other. Those consequences, therefore, set the level of persuasion for the fact finder in every case.8 The contingent nature of the process leading to a seemingly straightforward finding of facts is sometimes matched by the equally contingent process of finding the law.9 The issues raised by the choices offered between legal rules, or different versions or interpretations of legal rules, are fairly clearly questions of law themselves. However, the ability to choose between competing rules or formulations of rules is often a product of the degree of specificity or generality with which the facts may have been found. None of this is intended as an argument for fact scepticism,1 or for dismissing the law-fact distinction as a Louis Jaffe, Judicial Control of Administrative Action (1965) 548. Justice Finkelstein quoted Jaffe with approval in SRL v Minister for Immigration and Multicultural Affairs [2001] FCA 765, but only in the context o f dissenting from Justice Katz’s view that a predicted fact is not a ‘particular fact’ for the purposes of s 476(4)(b) of the Migration Act 1958 (Cth). That paragraph was the same as s 5(3)(b) of the Administrative Decisions (Judicial Review) Act 1977 (Cth). It provided for judicial review where the impugned decision was based upon a particular fact which did not exist, and was recently explained in Jegatheeswaran v Minister for Immigration and Multicultural Affairs [2001] FCA 865 CJegatheeswaran’). Justice Finkelstein explored the different characterisations of ‘fact’ (namely, positive and negative; past, present and future; primary and secondary; perceived and inferred; evidential and ultimate, operative, dispositive, material or constitutive; proven and intuited) in Jegatheeswaran [2001] FCA 865 [52]-[59].

Jegatheeswaran [2001] FCA 865 [58]-[59].

7 See R D Friedman, ‘Standards of Persuasion and the Distinction Between Fact and Law’ (1992) 86 Northwestern Law Review 916.

See A A S Zuckerman, ‘Law, Fact or Justice?’ (1986) 66 Boston University Law Review 487.

See Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520, 540.

10 C f Donald Nicholson, ‘Truth, Reason and Justice: Epistemology and Politics in Evidence Discourse’ (1994) 57 Modern Law Review 726.

2001 Unreasonableness and Error of Law 317 philosophical illusion or lawyer’s charade.1 It does, however, point to the distinct possibility that for legal purposes, questions of fact can contain elements of law.

Causation, for example, is a question of fact in negligence, even though it may require a selection between causal conditions according to value judgments and policy factors, for the purpose of attributing legal responsibility.1 Some of those policy choices clearly have legal elements to them.1 Causation is also a question of fact in the law of obligations in calculating losses, although the same caveat as to policy content applies.1 Causation may have a different meaning for the purposes of determining refugee status, but once again, this is because refugee law has its own legal, factual and policy contexts, and once again, it is still a question of fact.1 If one can take causation’s policy elements as including legal questions, the net result is that causation can become a question of law when a court limited to such questions wishes to lay down legal parameters to guide the tribunal of fact; hence the large number of appellate decisions on an issue bearing the overall classification of a question of fact.16


The law’s assessment of the reasonableness of conduct or decisions exhibits the same multiple features. The standard of reasonableness performs different functions within the tort of negligence. It is generally classified as an issue of fact, but the large number of judicial expositions as to how the reasonableness standard is to operate in particular areas is clearly designed to set guidelines or parameters for future cases. As with causation, the reasonableness standard can become a question of law to the extent that a court limited to such questions intervenes to lay down general guidelines governing the tribunals of fact. The last 20 years or so have seen the general tort of negligence replace more specific C f Kenneth Vinson, ‘Artificial World of Law and Fact’ (1987) 11 Legal Studies Forum 311; and Kenneth Vinson, ‘Disentangling Law and Fact: Echoes o f Proximate Cause in the Workers’ Compensation Coverage Formula’ (1996) 47 Alabama Law Review 723. Both articles argue that the distinction between errors of law and fact is made entirely to produce the desired outcome, and that it should therefore be discarded. See also Bibi Sangha, ‘The Law/Fact Distinction in Contract: a Lawyer’s Plaything?’ (1994) 7 Journal of Contract Law 113.

March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506; and New South Wales v Taylor (2001) 178 ALR 32, 36.

See AMP General Insurance Ltd v Roads and Traffic Authority of NSW [2001] NSWCA 186 [27] (Spigelman CJ): ‘As emphasised by the High Court in March v Stramare [(E & MH) Pty Ltd (1991) 171 CLR 506 at 516 and 524], causation is not only a factual question, it is also a normative one.’ Smith New Court Securities Ltd v Scrimgeour Vickers (Asset Management) Ltd [1997] AC 254, 285.

See Chen v Minister fo r Immigration and Multicultural Affairs (2000) 201 CLR 293, 314-15 (Kirby J).

See, eg, Woolfe v Tasmania [2001] TASSC 66; and Minister for Immigration and Multicultural Affairs v Sarrazola [No 2] (2001) 107 FCR 184, 199. See also Nicola Padfield, ‘Clean Water and Muddy Causation: Is Causation a Question of Law or Fact, or Just a Way of Allocating Blame?’ [1995] Criminal Law Review 683, where it is argued that causation is a question of fact in English homicide cases, but a question o f law in English pollution prosecutions. (It is also a question of fact in Australian murder cases: Royall v R (1991) 172 CLR 378, 387-8.) Volume 24(2) UNSW Law Journal tort liability rules covering highway authorities,1 occupiers of land and premises,1 and the escape of fire or dangerous things from a defendant’s property.1 This represents a shift from more complex liability regimes to a general negligence regime, with fewer hard and fast rules. That should produce more questions of fact and fewer questions of law. However, it will not impede the exposition of general legal guidelines for these areas. In the area of medical negligence claims, the High Court has insisted on setting its own standard of care, rather than deferring to the standards and opinions of reputable medical practitioners. At the same time, it has laid down general legal principles to structure this question of fact.20 Causation and reasonable care, therefore, can be both fact and law, depending on context. They arise in contexts where a court has to assess what happened and why, and what ought to have happened and who should be responsible for not having brought that about. So far as reasonableness is relevant, it is relevant to the act of judging the legal outcome of acts or conduct, rather than the acceptability of an official decision. In that context, an unreasonable want of care, for example, takes the defendant’s balance of precaution and risk beyond the realm where the court merely disagrees with it, to the realm where the court concludes that there is no room for reasonable minds to differ as to what should have been done. The reasonableness standard, therefore, is premised on the notion of relative autonomy. In negligence, it is the relative autonomy of defendants to judge for themselves how to act. The autonomy is relative, because the transition from reasonable to unreasonable marks the crossing of the boundary from judicial abstention to intervention.

The reasonableness standard performs a similar function in the law of judicial review, but it is more difficult to explain or justify in that context. Judicial review consistently denies review on the merits, which is a matter left for the judgment or discretion of the bureaucrat or agency concerned. All of the judicial review grounds emphasise the relative autonomy of the bureaucracy. Provided bureaucrats do the job which Parliament has given them, it is not the role of judicial review to intervene simply because the court might have viewed the facts differently or preferred a different outcome. Legality and merits are strictly separate. Review for so-called Wednesbury2 unreasonableness, however, challenges the dividing line between merits and legality, because its trigger is the poor quality of the bureaucratic decision. It has, for that reason, been the subject of considerable debate and uncertainty. Many cases say that the unreasonableness has to be extreme.22 They have yet to say that it should also be Brodie v Singleton Shire Council (2001) 180 ALR 145.

Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479.

Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520, holding that Rylands v Fletcher (1868) LR 3 HL 330 should no longer be seen as generating a liability regime separate from negligence.

Rogers v Whitaker (1992) 175 CLR 479.

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 ( ‘Wednesbury’).

See, eg, Minister fo r Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, 626, in

particular (Gleeson CJ and McHugh J):

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