o THAT WAY MADNESS LIES:' JUDICIAL

REVIEW FOR ERROR OF LAW

By HARRY WHITMORE*

The Problem Posed

For centuries the superior courts have wielded a judicial big stick
labelled 'jurisdictional error' in order to control and supervise the
activities of administrators and inferior tribunals; moreover the stick
has been brandished in the face of parliaments which have indicated
fairly clearly that they intended the particular inferior body to be free
of judicial interference. 2 The doctrine of review for jurisdictional error
is well established; but there is widespread criticism of its operation.
The distinction between findings of inferior bodies which are ' collateral '
to the merits and thus reviewable and those which are not, a distinction
which is basic to the doctrine, has been described as one of the' apparently
meaningless categories' of legal reference. 3 Particularly effective and
persistent criticism has been mounted by D. M. Gordon. 4 In his view
the distinction between jurisdictional facts and other facts cannot be
maintained. He is completely opposed to any acceptance of the idea
that the courts should be free to manipulate jurisdictional error to control
the activities of inferior bodies on policy grounds alone; arbitrariness
and uncertainty have no place in the law of judicial review. 5
It is arguable that the critics have over-emphasized the uncertainties
of judicial review for jurisdictional error, and the lack of logic inherent
in the concept;6 but whether jurisdictional error is truly a meaningless
category or not, it seems likely that its importance will decline as it is
supplanted to some degree by the even more flexible and uncertain

* LL.B. (Syd.), LL.M. (Yale); Barrister-at-Iaw; Professor of Law, School of

General Studies, Australian National University.
1 King Lear, Act III, Sc. IV.

2 See de Smith, Judicial Review of Administrative Action (1959), 266ff.; Rubinstein,

Jurisdiction and Illegality (1965) 85ff.; Benjafield and Whitmore, Principles ofAustralian
Administrative Law (3rd ed. 1966) 242ff.
3 Stone, Legal Systems and Lawyers' Reasonings (1964) 241ff.; 340. It is noteworthy,
however, that Professor Stone has some doubts as to whether jurisdictional error is
properly included in the suggested list of meaningless categories.
4 See particularly' The Relation of Facts to Jurisdiction' (1929) 45 Law Quarterly
Review 459; 'The Observance of Law as a Condition of Jurisdiction' (1931) 47 Law
Quarterly Review 386, 557; 'Conditional or Contingent Jurisdiction of Tribunals'
(1960) 1 University of British Columbia Law Review 185; 'Jurisdictional Fact: An
Answer' (1966) 82 Law Quarterly Review 515.
5 Gordon has berated ' the professors ' (in this case Professors Sawer and de Smith)
for their failure to condemn the ' impure' conception of jurisdiction; book review
of Judicial Review of Administrative Action (1960) 76 Law Quarterly Review 306, 314.
6 On this point see Jaffe, Judicial Control 0/ Administrative Action (1965) 631ff.

159
160 Federal Law Review [VOLUME 2

concept of review for error of law. 7 The courts and the l~gislatures
by fostering review for error of law have created an even better and
bigger stick for the judges to wield against the administration. The
stick is becoming ever more ready to hand, for the litigant may frequently
secure review for error of law by means of one of the special remedies,
the prerogative writs, injunction or declarationS or by statutory appeal
procedures.
Comments on the uncertainties of the fact-law distinction are by no
means uncommon, but probably because this distinction has only quite
recently become so significant in the area of judicial review of administra-
tive action, most jurisprudential examination of the problem has been
superficial. 9 The most well-known statement of the difficulty is that by
Professor Dickinson to the effect that 'Matters of law grow downward
into roots of fact and matters of fact reach upward without a break, into
matters of law. The knife of policy alone effects an artifficial cleavage
where the court chooses to draw the line'.1 0
Even more to the point is the following comment:
No two terms of 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 or 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. They may torture the souls of
language mechanicians who insist that all words and phrases must
have a fixed content, but they, in their flexibility, are essential to the
science which has to do with the control of men through the power
to pass judgment on their conduct. 11
The writer here was concerned with division of functions between
judge and jury. Although this allocation may be of the utmost import-
ance there are more urgent difficulties posed by introduction of the law-
fact distinction into the field of administrative law in such a way that the
citizens ' right to review of some adverse administrative action depends
upon a preliminary finding that a question of law is involved. The con-
clusion so often reached that it is proper for the courts to draw the

7 Professor Stone has no doubt that this is a category of meaningless reference,

Ope cit. 340.
8 The circumstances in which these remedies may be availed of are discussed below.

9 See e.g. Salmond, Jurisprudence (11 th ed. 1957) 66ff.; Paton, Jurisprudence (3rd ed.
1964) 175ff.; Cross, Precedent in English Law (1961) 241ff.; Pound, Jurisprudence
(1959) v, 544ff. It is noteworthy that in the latter work the majority of footnote
references are to modern works concerned with judicial review in the United States.
Stone notes the need for further examination of the problem, Ope cit. 340.
10 Dickinson, Administrative Justice and the Supremacy of the Law (1927) 55. The
author was, of course, referring to the difficulty in the context of judicial review.
t1 Green, Judge and Jury (1930) 270ff., quoted by Jaffe, Judicial Control ofAdministra-
tive Action (1965) 547.
JUNE 1967] Judicial Review for Error of Law 161

distinction on the basis of 'pragmatic', 'practical' or 'empirical'

balancing of the comparative qualification of judge and administrator12
appears quite acceptable from an academic point of view. It is somewhat
less satisfactory to the citizen or the practitioner who is confronted with
a real problem as to whether or not an application for review is likely
to be successful.
The issues may be clearly understood after consideration of some
practical situations. In many contexts government officials, administra-
tive tribunals, officers and committees of trade unions and other
associations are required to decide whether a word, or a phrase, or a
sentence whether it be in a statute, a regulation, a rule, a contract or
other document will apply to certain facts found. Examples are of
everyday occurrence; some cases are complex, some are simple. Where
facts are found showing that certain equipment is in place on land :;lnd
fixed by bolts and rivets to concrete foundations, an official will have
to reach a decision in the light of the statutory provision that ' in deter-
mining the improved value of premises occupied for trade, business or
manufacturing purposes, such premises shall not include any plant,
machines, tools or appliances which are not fixed to the premises or
which are only so fixed that they may be removed from the premises
without structural damage thereto '. He will have to decide whether the
premises are used for the prescribed purposes, whether the equipment
comprises 'plant, machines, tools or appliances " whether it is ' fixed "
and if so whether it may be removed without' structural damage': his
decision might be affected by common law decisions as to what comprises
'land' and' fixtures '.13 Upon finding that a book contains photo-
graphs showing certain anatomical detail and particular words and
phrases a customs official or a Literature Censorship Board will have to
decide whether the book is 'blasphemous, indecent or obscene'. A
trade union committee or official after finding that a member has engaged
in a certain pattern of conduct will have to decide whether this constitutes
, unfair competition' which is proscribed by the union rules. 14 A taxation
official or reviewing tribunal having found facts relating to a particular
transaction will have to decide whether profits that arose 'are derived
from the carrying out of a scheme devised for the purpose of making a
profit '15 or whether the transaction was or was not' an adventure in the
nature of trade'. 16 Similarly in varied circumstances, and again by
application of statutory or other standards to facts found decisions will
have to be reached as to whether land is 'in the same ownership ',17
12 See e.g. Griffith and Street, Principles of Administrative Law (3rd ed. 1963) 239;
Davis, Administrative Law Treatise (1958) iv, 199ff.
13 The Australian Gas Light Co. v. The Valuer-General (1940) 40 S.R. (N.S.W.) 126.

14 Lee v. Showmen's Guild of Great Britain [1952] 2 Q.B. 329.

15 Commissioner of Inland Revenue v. Walker [1963] N.Z.L.R. 339.

16 Griffiths v. J.P. Harrison (Watford) Ltd [1963J A.C. l.

17 Ex parte Tooth & Co. Ltd; Re Council ofCity ofSydney (1962) 80 W.N. (N.S.W.) 572.
162 Federal Law Review [VOLUME 2

whether newsboys are' employees',18 whether a person is ' resident' in a

particular area,19 whether certain persons are' officers ' of a trade union,20
whether a person claiming unemployment benefit is a person 'directly
interested in a trade dispute',21 and so on.
In each of these situations, and it can well be seen that the situations
are commonplace in any regulated society, the crucial questions for the
citizen and practitioner are easily posed. Assuming that a suitable
remedy can be found 22 will the courts be prepared to review the decision
made by the official or tribunal on the basis that a question of law is
presented? If error can be shown, will the court correct it? It will be
demonstrated that even in these apparently uncomplicated situations
it is difficult, if not impossible, to predict with confidence what the out-
come might be.
Unfortunately the position is indeed more complex than the foregoing
situations would indicate, for they assume that the official or tribunal
is either required or forbidden to take prescribed action upon finding
that standards, statutory or otherwise, apply to the facts found; e.g.
that a certain rate of tax must be applied to ' an adventure in the nature
of trade' or that importation of a book must be prohibited when there is
a finding that it is ' blasphemous, indecent or obscene'. But this is by
no means the only way in which power is conferred. More commonly
in these days power is not conferred in such absolute terms. Most powers
contain a substantial discretionary element. Upon making a finding
that a member of a union or association has been guilty of ' unfair com-
petition' a committee will usually be found to have a power to impose
disciplinary sanctions-a discretion to choose between penalties, or even
not to impose a penalty at all. So, too, upon finding that a newsboy
is an 'employee', an administrative body will usually have some dis-
cretion as to the form of the order to be made. After deciding that
premises do include certain equipment the official in actually arriving
at his valuation will be afforded a fairly wide scope for exercise of dis-
cretion. In English and Australian law techniques for the control of
discretionary powers are well developed through the doctrine of ultra
vires. 23 The courts will not permit the discretion to be abused: by
exercise to achieve an improper purpose; by taking account of irrelevant
matter or disregarding of relevant matter; by improper delegation or
fettering of the power; or by exercise under dictation by some outside
18 N.L.R.B. v. Hearst Publications (1944) 322 U.S. Ill.
19 Commissioner of Taxation v. Miller (1946) 73 C.L.R. 93.
20 N.L.R.B. v. Coca-Cola Bottling Co. (1956) 350 U.S. 264.

21 Punton v. Ministry ofPensions and National Insurance (No.2) [1964] 1 W.L.R.226.

22 See below.

23 These techniques are bedevilled by similar uncertainties to those which manifest

themselves in relation to jurisdictional error and error of law; see generally, de Smith,
Judicial Review of Administrative Action (1959) ch. 6; Benjafield and Whitmore,
Principles of Australian Adnlinistrative Law (3rd ed. 1966) 172ff.
JUNE 1967] Judicial Review for Error ofLaw 163

body. The question is whether such abuses of discretionary power which

have traditionally been remedied by the prerogative writ of mandamus
will be treated as errors of law to permit review when error of law is
the ground which must be established.
Although the fact-law distinction is becoming steadily more important
in English, Australian and other Commonwealth jurisdictions,24 and
although there are a multitude of decisions by the courts as to what are
'questions of law', there has never been a thorough examination in
Australia of the problems and difficulties inherent in any system of
judicial review of administrative action which depends upon a distinction
being drawn between matters of law and matters of fact. It is to United
States law and administrative lawyers that we must turn for guidance.

The United States Experience25

It is somewhat surprising to find that the law-fact distinction is still
of such importance in the United States where decisions of administrative
agencies may be reviewed by the courts on matters of law and matters
of fact. The answer is, of course, that review on matters of fact is
extremely limited whereas review on matters of law may lead to complete
substitution of a judicial decision for the original administrative decision.
Before delving deeper it may be as well to clear away two preliminary
matters. First, it is reasonably clear that the common law doctrine of
review of jurisdictional facts is virtually defunct; it has been supplanted
by the doctrine of review for ' substantial evidence'. The doctrine does
appear to survive in somewhat attenuated form in relation to constitu-
tional-jurisdictional facts particularly where civil rights are involved.
Certain it is that there are a number of older cases in which the language
of jurisdictional error is employed 26 and even some modern ones. 27
However, Professor Davis remarks 28 that
The present state of the law is probably embodied in a 1946 remark
of Mr Justice Frankfurter: 'This argument revives if indeed it does
not multiply, all the casuistic difficulties spawned by the doctrine
24 Statute after statute will provide simply for review where 'a question of law'
or a ' point of law' is involved. England has' made it wholesale' by providing in
s. 9 of Tribunals and Inquiries Act, 1958 (Eng.) for review of tribunal decisions by
the High Court on application by any party to the proceedings who is dissatisfied
, in point of law'. It would seem that legislators either do not realize or are not con-
cerned that the scope of review afforded by such provisions is almost completely at
the discretion of the courts. The trend has not escaped criticism: see Robson,
, Administrative Justice and Injustice: A Commentary on the Franks Report' [1958]
Public Law 12; Griffith,' Tribunals and Inquiries' (1959) 22 Modern Law Review 125.
25 It will be immediately apparent to the reader that I am heavily indebted to Pro-
fessors Davis and Jaffe for the material in this section. I hope that I have not mis-
represented their views or misunderstood the basic approaches. If I have I can only
plead in defence a long absence from the United States.
26 Ohio Valley Water Co. v. Ben Avon Borough (1920) 253 U.S. 287; Ng Fung Ho v.
White (1922) 259 U.S. 276; Crowell v. Benson (1932) 285 U.S. 22.
27 See e.g. Jacobellis v. Ohio (1964) 378 U.S. 184.

28 Administrative Law Treatise (1958) iv, 159ff.

164 Federal Law Review [VOLUME 2
of" jurisdictional fact". In view of the criticism which that doctrine,
as sponsored by Crowell v. Benson . .. brought forth and of the
attritions of that case through later decisions, one had supposed
that the doctrine had earned a deserved repose.'29
Secondly, the principles developed by the courts to govern judicial
review have to a considerable extent been codified in the Administrative
Procedure Act 1946 (U.S.) and its State equivalents. Section 10 of the
Act deals with judicial review; it provides, inter alia:
Except so far as (1) statutes preclude judicial review or (2) agency
action is by law committed to agency discretion-
(a) Rights of review-Any person suffering legal wrong because
of any agency action, or adversely affected or aggrieved by
such action within the meaning of any relevant statute shall
be entitled to judicial review thereof.
(e) Scope of review-So far as necessary to decision and where
presented the reviewing court shall decide all relevant questions
of law, interpret constitutional and statutory provisions and
determine the meaning or applicability of the terms of any
agency action. It shall (A) compel agency action unlawfully
withheld or unreasonably delayed; and (B) hold unlawful and
set aside agency action, findings, and conclusions found to
be (I) arbitrary, capricious, an abuse of discretion or otherwise
not in accordance with law; (2) contrary to constitutional right,
power, privilege, or immunity; (3) in excess of statutory juris-
diction, authority, or limitations, or short of statutory right;
(4) without observance of procedure required by law; (5)
unsupported by substantial evidence in any case subject to the
requirements of sections 7 and 830 or otherwise reviewed on
the record of an agency hearing provided by statute; or (6)
unwarranted by the facts to the extent that the facts are subject
to trial de novo by the reviewing court. In making the foregoing
determinations the court shall review the whole record or such
portions thereof as may be cited by any party, and due account
shall be taken of the rule of prejudicial error.
An initial difficulty with the section is created by the qualifying clause:
, Except so far as (1) statutes preclude judicial review or (2) agency action
is by law committed to agency discretion'. Privative clauses are as
common in the United States as they are in Australia :31 statutes provide
that a particular decision is to be 'final' or 'final and conclusive' or
even' not to be reviewed'. The approach of the courts varies according
to the formula, and indeed even where the same formula is used in different

29 Estep v. United States (1946) 327 U.S. 114. But see the Jacobellis case supra
n.27.
30 These are sections dealing with hearing procedure and the nature of the decision
to be made by the agency itself or its subordinate hearing officers. A record comprising
a transcript of testimony, exhibits and other papers is required to be kept and the
decision, which must include a statement of findings and conclusions, as well as the
reasons therefore, on all matters of fact, law or discretion, is part of the record. Review
both on questions of law and questions of fact is thus greatly facilitated.
3t See Benjafield and Whitmore, Ope cit. 242ff.
JUNE 1967] Judicial Review for Error of Law 165

statutes dealing with different exercises of power. It seems that clauses

prescribing finality will not generally exclude review either on questions
of fact or of law but that to deal with more explicit clauses the courts
have at times resorted to the concept of jurisdictional error. Furthermore
there are many cases in which administrative action has been held
unreviewable. 32 Literal application of the qualifying clause seems to
exclude review wherever an agency discretion is involved despite the
specific power to review for abuse of discretion contained in section 10 (e).
Again the courts have adopted widely different approaches according to
the nature of the power involved. The approaches range from complete
disregard of the qualifying clause33 to holdings that there can be no
review of discretionary executive action when matters of high policy
are involved. 34 Between these two extremes it seems that the courts
may assert a right to review or partial review where abuse of discretion
is alleged or they may give full effect to the qualifying clause. 35
Review of agency decisions on questions of fact must be dealt with
fairly briefly. Although Professor Jaffe insists on the traditional view
, that the adequacy of the evidence adduced to support a finding of fact
is a question of law '36 the courts of the United States are no longer forced
to rely on this somewhat doubtful proposition 37 in order to maintain
review on questions of fact. Instead they may utilise the judge-made
, substantial evidence' rule 38 which is now incorporated in the Adminis-
trative Procedure Act. The idea is, of course, that while it is proper
for courts to decide questions of law they should only interfere with
administrative findings of fact in the very limited class of cases where the
findings are not supported by 'substantial evidence' . 'Substantial
evidence' has been described as 'more than a scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion '.39 Professor Davis comments:
The meaning of 'substantial evidence' is about as clear and
about as vague as it should be; the main inquiry is whether on the
record the agency could reasonably make the finding. The test is
32 See Davis, Ope cit. iv, ch. 28. As with the English and Australian cases it is difficult
to perceive any high degree of consistency in dealing with privative clauses. Davis
puts it that 'The most important forces are the reactions of judges to reviewing or
refraining from reviewing particular questions in particular cases '.
33 United States ex reI. Accardi v. Shaughnessy (1954) 347 U.S. 260.

34 United States v. Pink (1942) 315 U.S. 203.

35 See Carlson v. Landon (1952) 342 U.S. 524; Panama Canal Co. v. Grace Line
(1958) 356 U.S. 309; Schilling v. Rogers (1960) 363 U.S. 666; Arrow Transportation
Co. v. Southern R. Co. (1963) 372 U.S. 658. Compare the approach of Davis, Ope cit.
iv, 80ff. with that of Berger, 'Administrative Arbitrariness and Judicial Review'
(1965) 65 Columbia Law Review 55.
36 Jaffe, Ope cit. 551, 595.

37 Brown, ' Fact and Law in Judicial Review' (1943) 56 Harvard Law Review 899,
903.
38 Traced back to I.C.C. v. Louisville & N.R.R. (1913) 227 U.S. 88.

39 Consolidated Edison CO. V. N.L.R.B. (1938) 305 U.S. 197, 229.

166 Federal Law Review [VOLUME 2

the same as the test on review of a jury verdict, but the review is
narrower than the review of the findings of a judge sitting wIthout
a jury. Despite the theory.. the judges as a matter of practical fact
have a good deal of elbow room to vary the intensity of review as
they deem necessary or desirable in particular cases. 40
Since the Administrative Procedure Act it is quite clear that review
for 'substantial evidence' on the whole of the record is required :41
this means that the reviewing court must look at the evidence on both
sides. 'The substantiality of evidence must take into account whatever
in the record fairly detracts from its weight '.42 It does not mean that
the court should weigh competing inferences: a court may not' displace
the Board's choice between two fairly conflicting views, even though the
court would justifiably have made a different choice had the matter been
before it de novo '.43 This makes it clear that the' substantial evidence'
rule applies also to inferences of fact; the decisions of administrators
are not to be overturned merely because a court might have drawn different
inferences from the primary facts found.
When it is borne in mind that the courts are required 'to decide all
relevant questions of law '44 the law-fact distinction becomes quite basic
to the whole system of review. Inevitably disputes will arise as to how a
question of law is to be isolated. Debate has extended over many years
and now the major protagonists are Professors Davis and Jaffe. 45 Profes-
sor Jaffe recognizes the difficulty of making a clear distinctIon and further
he recognizes that within limits the administration must be permitted
to make law. Beyond thIS, however, he insists upon an analytic approach;
avoidance of analysis by characterizing a question as one of mixed f8ct
and law subject to review only as to ' reasonableness " is in his view, an
avoidance of judicial responsibility. The analysis is predicated upon the
basic premise: 'A finding of fact is the assertion that a phenomenon
has happened or is or will be happening independent of or anterior to
any assertion as to its legal effect'. 46 Once an assertion of legal effect
is made the question becomes one of law. 47 The idea is firmly rejected
that when a word of common meaning is used in an instrument or a
40 Ope cit. iv, 118. Professor Jaffe states that' The law demands evidence sufficient
to enable a mind to find the legally required fact by reasoning from that evidence'.
Ope cit. 596.
41 Universal Camera Corporation v. N.L.R.B. (1951) 340 U.S. 474.

42 Ibid. 488.

43 Ibid.

44 Administrative Procedure Act 1946, S. 10 (e)-subject to the qualifying clause.

45 See generally Davis, Administrative Law Treatise iv, (1958) ch. 30; Jaffe, Judicial
Control ofAdministrative Action (1965) ch. 14; Davis,' Judicial Control of Administra-
tive Action: A Review' (1966) 66 Columbia Law Review 635.
460p. cit. 548.
47 The following illustration brings the analysis down to earth. A finding that an
employee, while at work, has been intentionally hit on the head by a fellow employee,
is a finding of fact. But if it is asserted that the injury arose out of the employment
and is compensable under a workers' compensation statute, this is a conclusion of law.
JUNE 1967] Judicial Review for Error of Law 167

statute its application to findings of fact presents a question of fact. He

points out that words rarely have a single meaning and that disputes must
inevitably arise as to whether they describe the phenomenon in question.
Such disputes 'must be resolved by reference to the purposes of the
statute and the question is thus one of law '.48 To meet his preliminary
point that within limits administrators should be permitted to make law
Professor Jaffe asserts that the courts should interfere only where a
conclusion is clearly erroneous. 49
It will have already become apparent that the question whether statutory
words or phrases apply to particular findings of fact-a question of law
whether or not the words used are of common meaning-is to be decided
first by the administrator and then, if judicial review is sought, by the
courts. The decision should in either case, according to Professor Jaffe,
be based upon the' clear statutory purpose '.50 He concedes that there
may be two or more answers where this test is applied and that in such
a case it is proper for the courts to decide that the actual choice of answer
should be left to the administrator, within the range of possible answers.
Expertise is a factor to be taken into account in assessing the statutory
purpose; in the sense that the courts will defer to the administrator when
of opinion that expertness is relevant. However, Professor Jaffe cavils
against mechanical application of the expertness approach in such a
way that it determines the scope of review-by restricting review to
reasonableness and thus treating a question of law as if it was a question
of fact. 51 The control of discretionary power by the doctrine of ' abuse
of discretion ' is dealt with fairly shortly52 although it seems to be assumed
that such abuse does constitute a question of law. 53
In the case law there is ample material to support Professor Jaffe's
analytic approach 54 but there are cases in which a different approach

48 Ope cit. 551. Professor Jaffe might have called in aid the words of Brandeis J.:
'When the words of a written instrument are used in their ordinary meaning, their
construction presents a question solely of law'. Great Northern Railway v. Merchants
Elevator Co. (1922) 259 U.S. 285, 291. Can' construction' be distinguished from the
situation here?
49 Ope cit. 554.

50 Ope cit. 572. It is noted that this may appear to be ' a crashing platitude or a
resounding rationalization for results otherwise determined' but nevertheless it is
insisted that it is a valuable initial premise.
51 On the question of expertise and the law-fact distinction see Korn, 'Law, Fact,
and Science in the Courts' (1966) 66 Columbia Law Review 1080.
52 Ope cit. 586ff.

S3 It has been remarked that 'American law about invalidating action that is
unreasonable or arbitrary seems to be less developed' than English law: Wade,
, Anglo-American Administrative Law: Some Reflections' (1965) 81 Law Quarterly
Review 357, 379.
54 See e.g. Davies Warehouse Co. v. Bowles (1944) 321 U.S. 144; Office Employes
v. N.L.R.B. (1957) 353 U.S. 313; Packard Motor Car Co. v. N.L.R.B. (1947) 330 U.S.
485; F.T.C. v. Anheuser-Busch (1960) 363 U.S. 536; F.T.C. v. Mandel Bros (1959)
359 U.S. 385; Jacobellis v. Ohio (1964) 378 U.S. 184; Good Humor Corp. v. McGoldrick
(1943) 46 N.E. 2d. 881; Red Top Brewing Co. v. Bowers (1955) 125 N.E. 2d. 188.
168 Federal Law Review [VOLUME 2

is taken. The most well known, and one which Professor Jaffe examines
in some detail, is N.L.R.B. v. Hearst Publications, Inc. 55 The issues were
fairly simple. The statute, the National Labor Relations Act 1935 (U.S.)
required an employer to bargain with the representatives of ' employees '.
Hearst Publications refused to bargain with newsboys on the ground that
they were independent contractors. The facts found included the follow-
ing: that the newsboys were adult men who sold newspapers and
magazines at street corner stands; the newsboys handled publications
other than those by Hearst but Hearst had on some occasions objected
to the selling of rival publications; Hearst allocated stands and supplied
boxes, racks, aprons, advertising matter and so on; Hearst fixed prices
and allocations and applied certain standards as to conduct; papers
were supplied on credit and newsboys were required to pay for those
sold, lost and unreturned. The N.L.R.B. found the newsboys to be
, employees'. On review the Court of Appeal treated the question as
one of law and reversed the Board's decision, the primary consideration
being, of course, the common law definition of ' employee'. However
the Supreme Court reinstated the Board's decision on the basis that the
inferences of fact had support in the record-thus treating the question
as one of fact. Although agreeing with the decision of the Supreme Court
having regard to statutory purposes, Professor Jaffe concludes that
phrasing of the opinion obscured analysis and indeed suggested 'an
abdication of the judicial function '.56
At this point the views of Professor Davis become relevant. While
agreeing that there is a strong line of cases supporting the analytical
approach to the law-fact distinction he argues strongly that there is an
equally well established catena of cases in which a ' practical, functional,
pragmatic or policy approach' is adopted. 57 The Hearst case is put
forward as but one example of this latter approach. s8 'The Supreme
Court " he asserts, 'commonly holds that because of such practical
considerations as the expertness of an agency or its staff, a question of
determining what decision to make on undisputed or established facts
is a question of fact and not a question of law' .59 Or alternatively the
courts may omit all discussion of the law-fact distinction and where they
think that judicial intervention is appropriate merely hold that the
administrative decision must be upheld where it has warrant in the record

55 (1944) 322 U.S. 111.

56 Ope cit. 560, 575.
57 Administrative Law Treatise (1958) iv, 192.

58 Limitations of space prevent detailed discussion of this line of cases. Professor

Davis includes: Dobson v. Commissioner (1943) 320 U.S. 489; Swift & Co. v. United
States (1942) 316 U.S. 216; Alleghany Corp. v. Breswick & Co. (1957) 353 U.S. 151;
Gilbertville Trucking Co. v. United States (1962) 371 U.S. 115; Commissioner v. Duber-
stein (1960) 363 U.S. 278.
59 Ope cit. 201.
JUNE 1967] Judicial Review for Error of Law 169

and a rational basis in law. 60 Professor Davis establishes that in the

Dobson case61 the Supreme Court treated the question whether there
was a ' tax benefit' as ' an accounting problem and therefore a question
of fact' when analytically it was a clear-cut question of law. This is on
all fours with the Hearst case. The Court was quite explicit as to its
reasons:
The [Tax] court is independent and its neutrality is not clouded by
prosecuting duties . . .. It deals with a subject that is highly
specialized and so complex as to be the despair of judges. It is
relatively better staffed for its task than is the judiciary. Its members
not infrequently bring to their task long legislative or administrative
experience in their subject . . .. Tested by every theoretical and
practical reason for administrative finality, no administrative
decisions are entitled to higher credit in the courts. 62
It is easy then to assert, as Professor Davis does assert, that the law-
fact distinction is manipulated to determine the scope of review on a
practical basis. 63 Furthermore, Professor Davis is aware that the most
important questions for review are questions of discretion which strictly
are neither questions of law nor questions of fact; but they are particu-
larly within the specialization of administrative agencies and their staffs,
and on a practical basis, better classified as questions of fact. 64
Professor Davis applauds the practical approach for a number of
reasons :65 historically the law-fact distinction has been practical and
not analytical; in order to decide between the literal or practical meaning
of words the courts must inquire into the use of the terms 'law' and
, fact' to guide the scope of review, and this leads to more sound decisions;
the analytic approach tends to permit substitution of judicial judgment on
, ought' or 'should' questions-the matters for discretion. He is of
opinion that the primary guide to decision between 'law' and 'fact'
should be the comparative qualifications of administrative agencies and
the courts. Some assistance might also be gleaned from the 'real or
assumed intent of Congress about allocation of functions between tourts
and agencies '.66
Unfortunately, the views of Professor Davis create more difficulties
than they solve. He recognizes that some unsatisfactory consequences
flow from the fluctuation of the courts between the analytic and the
60 Rochester Tel. Corp. v. United States (1939) 307 U.S. 125.
61 Dobson v. Commissioner of Internal Revenue (1943) 320 U.S. 489.
62 Ibid. 498-499.

63 He would prefer substitution of the words ' judicial question ' and ' administrative
question' for the words' law' and' fact' because such terminology would' focus
attention on practical needs rather than on a relatively sterile analysis of words '.
Op. cit. 194. This suggestion might be of value in Australian jurisdictions where
thoroughgoing reform of the system [sic] of administrative law is contemplated.
64 Ibid. 209.

65 Ibid. 207ff.

66 Ibid. 211.
170 Federal Law Review [VOLUME 2

practical approach to the law-fact distinction67 and, further, that the

Supreme Court has never given any explanation as to why it sometimes
follows one approach and sometimes the other. 68 And yet surely he is
right to emphasize that there are two distinct lines of cases. It is easy
to say that the choice is, and must be, guided by judicial discretion-
a discretion itself guided more often than not by the strength of opinion
as to whether the administrative action is right or wrong-but this affords
little help to the practitioner and must inevitably lead to increased litiga-
tion and costs and uncertainty in the administrative agencies. It seems to
the writer that the analytic approach, if strictly adhered to, is likely to
prove a more satisfactory base for prediction and coherence in a system
of administrative law. But the United States experience as a whole seems
to demonstrate that a system of review based on the law-fact distinction
is, in any event, unlikely to prove satisfactory.

The British-Australian Experience

It would be a pleasure at this stage to be able to say that one could turn
with a feeling of relief to the comparative simplicity of English and
Australian law. This pleasure is denied, for disputes on the law-fact
distinction are interwoven into the fabric of the case-law in a multiplicity
of contexts.
Simplicity might have been attained, at the possible cost of giving too
much scope for judicial review, had the courts adhered to the view put
forward by Lord Parker in Farmer v. Cotton's Trustees: 69
The views from time to time expressed in this House have been far
from unanimous, but in my humble judgment where 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 con-
strued of some statutory enactment the question is one of law only.
Judicial support for this approach is easy to find. In Hayes v. Federal
Commissioner of Taxation 70 Fullagar J. referred to Lord Parker's remarks
with evident approval and went on to say:
With the greatest respect, this seems to me to be the only reasonable
view. The distinction between the two classes of question is, I think,
greatly simplified, if we bear in mind the distinction, so clearly drawn
by Wigmore, between the factum probandum (the ultimate fact in
issue) and facta probantia (the facts adduced to prove or disprove
that ultimate fact). The' facts' referred to by Lord Parker in the
passage quoted are the facta probantia. 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.
67 Ibid. 193.
68 Ibid. 229.
69 [1915] A.C. 922, 932.

70 (1956) 96 C.L.R. 47, 51.

JUNE 1967] Judicial Review for Error of Law 171

Lord Reid has recently said: 71

The question whether the words of an Act apply to particular facts
is generally called a question of law. . .. In some exceptional cases
the question whether a particular word or phrase in an Act applies
to particular facts has come to be regarded, for reasons that I do
not fully understand, as a question of fact.
This approach, which is, of course, the counterpart of the United
States analytic line of decisions, has been adopted mainly in cases con-
cerned with the review of decisions by taxation tribunals72 but there are
signs of a similar approach, sometimes less explicit, in other contexts. 73
The most illuminating opinion of recent years is that of Lord Radcliffe
in Edwards v. Bairstow.74 He said:
My Lords, I think that it is a question of law what meaning is to
be given to the words of the Income Tax Act ' trade, manufacture,
adventure or concern in the nature of trade' and for that matter
what constitute 'profits or gains' arising from it. . .. But that
being said, the law does not supply a precise definition of the word
, trade' : much less does it prescribe a detailed or exhaustive set
of rules for application to any particular set of circumstances. In
effect it lays down the limits within which it would be permissible
to say that a ' trade' as interpreted by section 237 of the Act does
or does not exist.
This is close indeed to the approach advocated by Professor Jaffe.
The question is one of law but provided that the facts found are capable
of being within the statutory term there is no error. Indeed, Lord
Radcliffe notes that where there is room for manoeuvre as to whether
or not the facts fall within a statutory term a determination is a question
of degree and can be described as a question of fact: but he deprecates
, too much abbreviation' in stating the question, 'as by asserting that
it is simply a question of fact whether or not a trade exists. It is not
simply a question of fact '.
Complexity is introduced by the many opinions and decisions, to the
effect noted by Lord Reid, that whether a particular word or phrase in
an Act applies to particular facts found is not a question of law at all
but is simply a question of fact. Usually the courts will say that a question
of fact is presented because the word or phrase ' is an ordinary English

71 Griffiths v. J.P. Harrison (Watford) Ltd [1963J A.C. 1, 15.

72 See e.g. per Gresson P. in Commissioner ofInland Revenue v. Walker [1963]N.Z.L.R.
339, 353ff.; per Latham C.J. in Commissioner of Taxation v. Miller (1946) 73 C.L.R.
93, 97; per Rich A.C.J. in Federal Commissioner of Taxation v. Broken Hill South
Ltd (1941) 65 C.L.R. 150, 154.
73 See e.g. In re Butler [1939] 1 K.B. 570; Church v. Inclosure Commissioners (1862)
11 C.B. (N.S.) 664; Gould v. Minister of National Insurance [1951] 1 K.B. 731; Ex parte
Tooth & Co. Ltd; Re Council of City of Sydney (1962) 80 W.N. (N.S.W.) 572;
Hoddinott v. Newton Chambers & Co. Ltd [1901] A.C. 49; Reg. v. Medical Appeal
Tribunal; Ex parte Burpitt [1957] 2 Q.B. 584.
74 [1956] A.C. 14, 33ff.
172 Federal Law Review [VOLUME 2
word or phrase', or is used in the same sense as ' in ordinary speech t,
or involves ' questions of degree'. One of the most influential judgments
in Australia has been that of Jordan C.J. in The Australian Gas Light
Co. v. The Valuer-General.7 5 He said: 76 'The question what is the mean-
ing of an ordinary English word or phrase as used in the Statute is one
of fact not of law'. This proposition may now be doubted. 77 But he
goes on to say: 'The question whether a particular set of facts comes
within the description of such a word or phrase is one of fact '. There
is ample authority for this proposition. 78 Thus the question whether a
person is ' resident ' in a particular area has been held to be a question
of fact because it is a question of degree and the word is used in the
statute in the common sense. 79 Whether a transaction is ' an adventure
in the nature of trade' is for the same reasons a question of fact. 80 The
words ' mining operations ' are used in a taxing statute as an ordinary
English expression and present a question of fact. 81 Again most of these
examples involve review of taxation tribunals. But there are numerous
examples in other fields: 'speed . . . dangerous to the public' is a
question of degree-a question of fact;82 , substantial part' of premises
is a question of fact;83 'unfit for human habitation' is a question of
degree-a question of fact;84 'houses' raises a question of fact. 85
Even where this view is taken presumably it follows that where words
and phrases are used which do not have a common meaning or involve
questions of degree their application to facts found does raise a question
of law. 86
It must not be thought that adherence to the theory that application
of statutory standards to facts found is a question of fact precludes
judicial review where a question of law or error of law must be established.
This would be much to,o unsophisticated! But a language usage must be
explained before further difficulties are encountered. In Hayes' case l7

75 (1940) 40 S.R. (N.S.W.) 126.

76 Ibid. 137.
77 Edwards v. Bairstow [1956] A.C. 14, 31, 33.
78 Ibid. 30.

79 Inland Revenue Commissioners v. Lysaght [1928] A.C. 234; Commissioner of

Taxation v. Miller (1946) 73 C.L.R. 93.
80 Edwards v. Bairstow [1956] A.C. 14, 30; Griffiths v. J.P. Harrison (Watford) Ltd
[1963] A.C. l.
81 Federal Commissioner of Taxation v. Broken Hill South Ltd (1941) 65 C.L.R. 150;
N.S. W. AssociatedBlue-Metal Quarries Ltd v. Federal Commissioner of Taxation (1956)
94 C.L.R. 509.
82 Bracegirdle v. Oxley [1947] K.B. 349.
83 Atkinson v. Bettison [1955] 1 W.L.R. 1127.
84 In re Bowman [1932] 2 K.B. 621; Daly v. Elstree R.D.C. [1948] 2 All E.R. 13.
85 In re Bainbridge [1939] 1 K.B. 500.
86 See cases cited above. Also see Bracegirdle v. Oxley [1947] 1 K.B. 349; Gould v.
Minister of National Insurance [1951] 1 K.B. 731; British Launderers' Research Associa-
tion v. Borough of Hendon Rating Authority [1949] 1 K.B. 462; D.P.P. v. Head [1958]
2 W.L.R. 617.
87 (1956) 96 C.L.R. 47.
JUNE 1967] Judicial Review for Error ofLaw 173

Fullagar J. thought that simplification could be achieved by describing

the difference between facta probantia and facta probanda. The more
common usage is to distinguish 'primary facts' and 'inferences'. In
Bracegirdle v. Oxley 88 Denning J. explained the distinction thus:
Primary facts are facts which are observed by the witnesses and
proved by testimony; conclusions from those facts are inferences
deduced by a process of reasoning from them. The determination
of primary facts is always a question of fact. 89 It is essentially
a matter for the tribunal which sees the witnesses to assess their
credibility and to decide the primary facts which depend on them.
The conclusions from those facts are sometimes conclusions of
fact and sometimes conclusions of law.
When the problem is whether the primary facts fall within a statutory
term there will be raised a question, conclusion, or inference of fact or
of law according to which of the two approaches outlined in the preceding
paragraphs is adopted. In Federal Commissioner of Taxation v. Broken
Hill South Ltd90 the primary facts were that because of economic con-
ditions a mine was in a ' closed down ' condition; the only employees
were surface men who acted as watchmen and engineers who periodically
ran the engines. The inference to be drawn was whether or not' mining
operations '-a statutory term-were being carried on. Rich A.C.J.
applying Lord Parker's approach held this to be an inference or question
of law. 91 Other members of the court adopting the' common meaning'
approach held that it was an inference of fact. 92
Authority to the effect that review can still be obtained despite a
holding that only an inference of fact is involved is now plentiful. In
the Australian Gas Light case 93 Jordan C.J. explained that
. . . 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. 94
The scope of review suggested seems identical to that envisaged by
Lord Radcliffe in Edwards v. Bairstow; in practice little seems to turn
on the fact-law distinction unless it is asserted that there is only one
88 [1947] K.B. 349, 358.
89 This statement needs to be qualified. Infra.
90 (1941) 65 C.L.R. 150.

91 Ibid. 154.

92 Ibid. 155, 160.

93 (1940) 40 S.R. (N.S.W.) 126, 138.

94 See also Commissioner of Taxation v. Miller (1946) 73 C.L.R. 93, 103; Federal
Comlnissioner of Taxation v. Broken Hill South Ltd (1941) 65 C.L.R. 150, 155; Fisher v.
Deputy Commissioner of Taxation (1966) 40 A.L.J.R. 328.
174 Federal Law Review [VOLUME 2

possible answer to a question of law. Also in Edwards v. Bairstow Viscount

Simonds made it clear that on his analysis a distinction between law and
fact was not critica1. 95 He went on to say:96
The primary facts, as they are sometimes called, do not, in my
opinion, justify the inference or conclusion which the commis-
sioners have drawn: not only do they not justify it but they lead
irresistibly to the opposite inference or conclusion. It is therefore
a case in which, whether it be said of the commissioners that their
finding is perverse or that they have misdirected themselves in law
by a misunderstanding of the statutory language or otherwise, their
determination cannot stand.
The test has also been put in terms of ' reasonableness '. Lord Denning
in discussing whether a decision of the Special Commissioners for Income
Tax could be reversed because it was' erroneous in point of law' stated:
And it is now settled, as well as anything can be, that their con-
clusion cannot be challenged unless it was unreasonable, so
unreasonable that it can be dismissed as one which could not
reasonably be entertained by them. It is not sufficient that the
judge would himself have come to a different conclusion. Reasonable
people on the same facts may reasonably come to different conclu-
sions, and often do. Juries do. So do judges. And are they not all
reasonable men? But there comes a point when a judge can say that
no reasonable man could reasonably come to that conclusion.
Then, but not till then, he is entitled to interfere.97
Review of primary facts is theoretically more limited. It is said that
the only question of law that can arise on primary facts is whether there
was any evidence to support the finding 98 and the House of Lords has
insisted that the courts will more readily review inferences than primary
facts. 99 The reason is, of course, that the trial judge, jury or tribunal
has seen and heard the witnesses. It has recently been held in England
that in reviewing decisions of the Minister under the Town and Country
Planning Act where review is limited to points of law the Supreme Court
Rules will not permit re-hearing on primary facts although the Rules
may be availed of to justify admission of fresh evidence. 1 The allegation
95 [1956] A.C. 14, 29.
96 Ibid.
97 Griffiths v. J.P. Harrison (Watford) Ltd [1963] A.C. 1, 19. See also Federal Com-
missioner of Taxation v. Broken Hill South Ltd (1941) 65 C.L.R. 150, 155; Great Western
Railway Co. v. Bater [1922] 2 A.C. 1, 12; Lee v. Showmen's Guild of Great Britain
[1952] 2 Q.B. 329; Walton v. Holland [1963] N.Z.L.R. 729; Armah v. Government of
Ghana [1966] 3 All E.R. 177; cf. Reg. v. District Court; Ex parte White (1966) 40
A.L.J.R. 337, 341.
98 Smith v. General Motor Cab Co. [1911] A.C. 188; The Australian Gas Light Co.
v. Valuer-General (1940) 40 S.R. (N.S.W.) 126, 138; British Launderers' Research
Association v. Borough of Hendon Rating Authority [1949] 1 K.B. 462,471; American
Thread Co. v. Joyce (1913) 108 L.T. 353; Ex parte Parker; Re Brotherson (1957)
57 S.R. (N.S.W.) 326.
99 Benmax v. Austin Motor Co. [1955] A.C. 370; Wheat v. E.Lacon & Co. Ltd [1966]
2. W.L.R. 581.
1 Green v. Minister of Housing and Local Government [1966] 3 All E.R. 942.
 JUNE 1967] Judicial Review for Error ofLaw 175

that facts are not supported by evidence cannot be maintained colourably

to establish a question of law. 2
Although it is in the context of application of statutory standards
to facts found that the practitioner will most often seek to have administra-
tive decisions reviewed he must never overlook the possibility of
establishing other questions or errors of law. First there is the problem
of discretionary powers. It has long been established that exercise of
discretionary power may be controlled by means of the ultra vires doctrine3
but it was not entirely clear until very recently that the abuses of the
discretion covered by the doctrine would be regarded as errors of law.
In many cases it was assumed or stated that this was SO,4 and finally in
Baldwin and Francis Ltd v. Patents Appeal TribunalS Lord Denning posed
the direct question: 'Is that an error of law ?' He went on to say :
, I have no doubt that it is: and it is an error of such a kind as to entitle
the Queen's Bench to interfere'. Lord Denning canvassed a number of
decisions in which abuses had been treated as errors of law. Furthermore,
although mere lack of evidence to support a discretionary decision or
even improper rejection of evidence by a tribunal will not amount to
error of law, it has been held that such error may be established where the
lack or rejection of evidence shows that the tribunal did not understand
the nature or scope of its discretion. 6 Indeed any misconception of
powers may amount to error of law?
Secondly, in any situation where review is limited to questions of law
it may be necessary to consider whether procedural breaches amounting
to denial of natural justice are capable of being treated as errors of law.
There has been little judicial consideration of this problem. In a very
recent decision the English Court of Appeal took the view that disregard
of minimum standards of natural justice by denial of the right to be heard
did constitute error of law. 8 The position in Australia is far less clear.
In Mobil Oil Australia Pty Ltd v. Commissioner ofTaxation 9 the Taxation
2 Fisher v. Deputy Commissioner of Taxation (1966) 40 A.L.I.R. 328.
3 Supra. The usual remedy has been mandamus-issued on the basis that there
has been ' a failure to hear and determine according to law'; but now the declaratory
judgment appears to be supplanting mandamus.
4 See e.g. John East Iron Works Ltd v. Labour Relations Board of Saskatchewan
[1949] 3 D.L.R. 51; Commissioner of Stamp Duties v. Pearse (1951) 84 C.L.R. 490;
R. v. Agricultural Land Tribunal for Wales; Ex parte Davies [1953] 1 W.L.R. 722;
R. v. Agricultural Land Tribunal; Ex parte Bracey [1960] 1 W.L.R. 911; Ex parte
Hopkins; Re Cronin (1956) 57 S.R. (N.S.W.) 554.
5 [1959] A.C. 663, 693.

6 Ward v. Williams (1955) 92 C.L.R. 496; And see Norris v. Brown (1966) 84 W.N.
(Pt 1) (N.S.W.) 393.
7 Edwards v. Bairstow [1956] A.C. 14; R. v. Vestry of St Pancras (1890) 24 Q.B.D.
371; Hammond v. Hutt Valley and Bays Metropolitan Milk Board [1958] N.Z.L.R.
720; Lynn v. Ringwood [1964] N.S.W.R. 199; Reg. v. The District Court; Ex parte
White (1966) 40 A.L.J.R. 337. J,1 '
8 Maurice v. London County Council [1964] 1 All E.R. 779. ,iIru441~'1?.,L-t

9 (1963) 37 A.L.J.R. 182.

176 Federal Law Review [VOLUME 2

Board of Review excluded from a hearing the appellant taxpayer and its
representatives: the reason for the exclusion was that counsel for the
Commissioner proposed to introduce oral and documentary evidence
concerning the affairs of other companies engaged in the marketing of
petroleum products. A case was stated for the opinion of the High Court
on the basis that questions of law were involved. The majority of the
Court considered the exclusion of the taxpayer and his representatives
to be a matter solely for the discretion of the tribunal which did not
involve questions of law. 10 Kitto J. considered that a question of law
arose as to whether the Board was legally bound to conform to the
principles of natural justice11 but came to the rather astonishing conclusion
that the Board was not so legally bound having regard to the variable
standards of natural justice.
The lawyer who is sincerely concerned with development of a system
of administrative law which properly balances the skills and techniques
of the courts and the judges on the one hand and the administrators and
their tribunals on the other must surely be concerned at the bewildering
confusion introduced by the idea that the courts may review administra-
tive decisions on the ground of error of law. The aggrieved citizen can
have little confidence in or respect for a ground for review which cannot
be adequately explained to him by the most astute lawyer. What has
gone wrong? On the technical side a number of comments may be put
forward:
(a) Confusion seems to arise out of the use of the terms' question of
law', ' point of law' and ' error of law' as if they were completely inter-
changeable. It would be more logical to adopt a usage whereby the
question whether facts fall within a statutory term would be said to
involve a ' question of law ',or' a point of law '. An' error of law ' would
then be established only where the facts found were shown not to be
within the permissible range of meanings to be given to the term.
(b) There seems to be little purpose in insisting that where the statutory
term is of common meaning the question whether facts fall within it is
merely one of fact-particularly when the courts are prepared, in any
event, to review that question of fact. Surely it would be simpler and more
logical to hold that a question of law is presented in every such case but
that the administrator or administrative tribunal should be pernlitted
to make law within permissible limits indicated by the courts. 12
(c) If only for the sake of simplicity in the remedial law it would seem
highly desirable that both abuse of discretion and denial of natural
justice should always be treated as raising a question of law.
10 Ibid. 187.
11 Ibid. 190.
12 Again, the approach of Professor Jaffe is preferred.
JUNE 1967] Judicial Review for Error ofLaw 177

On the policy side the issues are much more complex. It seems fairly
clear that by elaboration of the doctrines that inferences of fact must be
reasonable and that primary facts must be supported by evidence the
courts have pushed far into the field occupied by the' substantial evidence'
rule in the United States. Furthermore, by treating questions of law as
having only one answer, or a very limited number of answers, the courts
can at will substitute their opinions for those of skilled administrators.
Lord Radcliffe put it thus:
Their duty is no more than to examine those facts with a decent
respect for the tribunal appealed from and if they think that the
only reasonable conclusion on the facts found is inconsistent with
the determination come to, to say so without more ado. 13
In relation to discretionary administrative power, the scope of review
is almost without limit. 14 The courts are, of course, aware of the nature
of their power-and indeed the' inference of fact' doctrine was intended
to place some -limit on the scope of review. Nevertheless, the only real
limitation is the restraint of the judges. No doubt, as in the United
States, the major considerations which guide the judge's exercise of
discretion in particular cases are the opinions formed as to the degree of
, wrongness' of the decision and as to its impact on the individual con-
cerned.
Because there are large issues of administrative efficiency and public
interest involved the Parliaments and executive governments of Australia
cannot afford to view these developments with equanimity. Are they
willing to continue the trend towards providing review for error of law
almost indiscriminately and give the courts almost limitless power to
interfere with adnlinistrative processes? There is some sign that they are
not. In the Trade Practices Act 1965-1966 (Cth) the Commonwealth
Parliament has provided for review by the Commonwealth Industrial
Court of questions of law referred by the Trade Practices Tribunal. It is
specifically provided that ' a reference in this section to a question of law
does not include a reference to a question whether there is sufficient
evidence to justify a finding of fact by the Tribunal '.15 But this is an
isolated example. 16

The Remedies
Certiorari
The principle that the superior courts may, by the prerogative writ
of certiorari, quash the decisions of administrative tribunals and inferior

13 Edwards v. Bairstow [1956] A.C. 14, 39.

1. See Benjafield and Whitmore, Principles of Australian Administrative Law (3rd ed.
1966) 185ff.
15 Section 66 (4).
16 And, in any event, the High Court could review for error of law on the face of
the record by means of certiorari.
 178 Federal Law Review [VOLUME 2

courts for error of law on the face of the record is now well established. 17
Although the superior courts in England had for long asserted the power
to review for error of law on the face of the record 18 such power was
intermingled with the power to review for jurisdictional error19 and
clear application of the doctrine to an administrative body was delayed
until the Northunlberland case20 in 1951. Since the mid-1950's reported
cases have appeared in a steady stream both in England 21 and Australia. 22
In a very recent decision the High Court did not question the existence
of the doctrine although they decided that certiorari should not issue
in the particular case. 23 The' errors of law' canvassed in the reported
cases range over the entire spectrum discussed in this article and thus
certiorari has become a very potent remedy to be used against the
administration. 24 It is not without limit, however: in the first place the
technical requirements for the issue of certiorari must be satisfied25 and
in the second the error must appear' on the face of the record '.26 Unfor-
tunately there is little clarity as to what constitutes ' the record ' for this
purpose. 27 In the Northumberland case it was said that the record com-
prised the document initiating proceedings, the pleadings (if any) and
the adjudication, but not the evidence or the reasons unless the tribunal
17 For the historical background see Sawer' Error of Law on the Face of an Admin-
istrative Record' (1954-1956) 3 Annual Law Review 24, 26. Professor Sawer considered
the development to be 'unfortunate' as it might obfuscate the need for legislative
action to provide for proper judicial review of administrative discretionary power.
18 See R. v. Nat Bell Liquors Ltd [1922] 2 A.C. 128; and Sawer, ibid. passim.

19 See e.g. R. v. Dunn [1840] 12 A. & E. 599.

20 R. v. Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1951] 1 K.B.

711.
21 E.g. R. v. Birmingham Compensation Appeal Tribunal; Ex parte Road Haulage
Executive [1952] 2 All E.R. 100; R. v. Agricultural Land Tribunal; Ex parte Davies
[1953] 1 W.L.R. 722; Reg. v. Medical Appeal Tribunal; Ex parte Gilmore [1957] 1
Q.B. 574; Davies v. Price [1958] 1 W.L.R. 434; Baldwin & Francis Ltd v. Patents
Appeal Tribunal [1959] A.C. 663; R. v. Minister of Housing and Local Government;
Ex parte Chichester R.D.C. [1960] 1 W.L.R. 587; R. v. Patents Appeal Tribunal;
Ex parte Swift and Co. [1962] 1 All E.R. 610; R. v. Essex Quarter Sessions; Ex parte
Thomas [1966] 1 All E.R. 353.
22 E.g. R. v. Industrial Appeals Court; Ex parte Henry Berry & Co. (Australasia) Ltd
[1955] V.L.R. 156; Ex parte Hopkins; Re Cronin (1956) 57 S.R. (N.S.W.) 554; Ex parte
Crothers; Re Anderson (1961) 78 W.N. (N.S.W.) 316; The Queen v. Tennant; Ex parte
Woods [1962] Qd R. 241; Ex parte Tooth & Co. Ltd; Re Council of City of Sydney
(1962) 80 W.N. (N.S.W.) 572. -
23 Reg. v. District Court; Ex parte White (1966) 40 A.L.J.R. 337.

24 In some cases the courts have shown themselves to be very conscious of the scope
of the remedy and have sought to avoid its full application; See e.g. Ex parte Crothers;
Re Anderson (1961) 78 W.N. (N.S.W.) 316; The Queen v. Tennant; Ex parte Woods
[1962] Qd R. 241.
25 See Benjafield and Whitmore, Ope cit. 200ff.; de Smith, Judicial Reyiew of Admin-
istrative Action (1959) ch. 9.
26 Thus where the error complained of is an abuse of discretion, it has been held
that such error must appear on the record to attract certiorari: R. v. Paddington &
St Marylebone Rent Tribunal; Ex parte Kendal Hotels [1947] 1 All E.R. 448; R. v.
Agricultural Land Tribunal; Ex parte Bracey [1960] 1 W.L.R. 911. The way round
these decisions is to hold that the error amounts to excess of jurisdiction: see de Smith,
Ope cit. 210, and Baldwin & Francis Ltd v. Patents Appeal Tribunal [1959] A.C. 663.
27 See generally de Smith, Ope cit. 3OOff.
JUNE 1967] Judicial Review for Error ofLaw 179

chooses to incorporate them. 28 Lord Denning has since said that the
record should comprise not only the formal order but all those docu-
ments which appear therefrom to be the basis of the decisions, i.e. all
documents 'touching the same '.29 Nevertheless, there is still doubt as
to the extent to which documents and reasons stated orally but taken down
in shorthand are to be regarded as part of the record. 30
Prohibition
The prerogative writ of prohibition is used to prevent the continuance
of proceedings where jurisdiction is lacking or where there has been
denial of natural justice. 31 Errors of law which fall into either of these
categories can thus be dealt with by prohibition.
Mandamus
Mandamus is the traditional remedy used where there has been failure
to hear and determine according to law. This ground may be established
by jurisdictional error leading to refusal of jurisdiction, abuse of dis-
cretionary power and misapplication of powers sufficient to show that
the body concerned has misconceived the nature of its power. 32 Errors
of this type may be redressed by mandamus.
Habeas Corpus
Although used comparatively rarely these days, habeas corpus is still
available to secure the liberty of the subject. 33 Very frequently the ground
sought to be established is that an accused person has been committed
without sufficient evidence of guilt. In a series of earlier cases the courts
asserted their right to review on the basis of jurisdictional error. 34 It
has been shown that lack of evidence may establish error of law and
in a recent decision of the House of Lords the view has been expressed
that such error will be an alternative ground. 35
Injunction
The main use of the injunction36 in which the concept of error of law
is availed of to provide its usual wide scope of review is in cases where
court intervention has been sought to control the activities of domestic
tribunals, i.e. the committees of trade unions, sporting associations,
employers' organisations and similar bodies. The jurisdiction to review
28 [1952] 1 K.B. 338, 352.
29 Baldwin & Francis Ltd v. Patents Appeal Tribunal [1959] A.C. 663, 690.
30 See other opinions in Baldwin & Francis Ltd v. Patents Appeal Tribunal [1959]
A.C. 663 and Reg. v. District Court; Ex parte White (1966) 40 A.L.J.R. 337, 342.
31 See Benjafield and Whitmore, Ope cit. 207ff.; de Smith, Ope cit. ch. 9.

32 See Benjafield and Whitmore, Ope cit. 211ff.; de Smith, Ope cit. ch. 12.

33 See Campbell and Whitmore, Freedom in Australia (1966) 70ff.

34 Despite some doubts expressed as to whether this really was jurisdictional error.

35 Armah v. Government of Ghana [1966] 3 All E.R. 177, 202.

36 But not the only use-see Benjafield and Whitmore, Ope cit. 218ff.
180 Federal Law Review [VOLUME 2

for error of law has been pressed in recent years37 with the rules of the
particular organisation or a contract standing in the place of legislative
provisions.

Declaratory Judgment
For most of this century the declaratory judgment has been growing
in importance as a public law remedy38 but some doubts still exist as
to the scope of review for error of law. When the error amounts to an
abuse of discretion there is little doubt that the remedy is available39
although the language is usually that of ultra vires review. If denial of
natural justice be error of law then that error too may be rectified by
declaratory judgment. 4o The decision of the High Court in Toowoomba
Foundry Pty Ltd v. The Commonwealth 41 to the effect that a declaration
may not be had to establish the invalidity of the decision of a statutory
tribunal has severely inhibited the use of the remedy in Australia in that
particular context. There can be little doubt that the Toolvoomba case
should now be regarded as being out of line. 42 The doubt exists when
the error complained of does not amount to abuse of discretion, denial
of natural justice, or jurisdictional error.
In a series of English cases the view was expressed that a declaration
could be had to correct errors of law whether or not they be on the face
of the record. 43 Confusion has been introduced by the Punton cases.
The plaintiffs had appealed to the insurance commissioner against dis-
allowance of their claims to unemployment benefit; the appeal was
itself disallowed on the ground that the plaintiffs had failed to prove that

37 See e.g. Lee v. Showmen's Guild of Great Britain [1952] 2 Q.B. 329; Hawick v.
Plegg (1958) 75 W.N. (N.S.W.) 255; Baker v. Gough (1962) 80 W.N. (N.S.W.) 1263;
Schweikert v. Burnell (1963) 80 W.N. (N.S.W.) 1227; Nagle v. Feilden [1966] 1 All
E.R. 689.
38 New South Wales stood outside the mainstream of development because of
certain restrictive decisions of the courts. Amendments to s. 10 of the Equity Act,
1901-1965 (N.S.W.) introduced by the Law Reform (Miscellaneous Provisions) Act,
1965 (N.S.W.) have made the declaratory judgment fully available in New South
Wales.
39 See e.g. Hanson v. Radcliffe U.D.C. [1922] 2 Ch. 490; Prescott v. Birmingham
Corporation [1955] 1 Ch. 210; Associated Provincial Picture Houses v. Wednesbury
Corporation [1948] 1 K.B. 223; Patton v. Attorney-General [1947] V.L.R. 257; Hall
& Co. Ltd v. Shoreham-by-Sea U.D.C. [1964] 1 W.L.R. 240; Robinson v. Lloyd [1962]
W.A.R.168.
40 Cooper v. Wilson [1937] 2 K.B. 309; Hoggard v. Worsborough U.D.C. [1962]
2 Q.B. 93; Delta Properties Pty Ltd v. Brisbane City Council (1955) 95 C.L.R. 11;
Ridge v. Baldwin [1964] A.C. 40.
4t (1945) 71 C.L.R. 545.
42 See e.g. Pyx Granite Co. Ltd v. Ministry of Housing and Local Government [1960]
A.C. 260; Ridge v. Baldwin [1964] A.C. 40; Mutual Life and Citizens' Assurance Co.
Ltd v. Attorney-General (Qld) (1961) 106 C.L.R. 48; Robinson v. Lloyd [1962] W.A.R.
168.
43 See e.g. per Denning L.J. in Lee v. Showmen's Guild of Great Britain [1952] 2
Q.B. 329, 346; Barnard v. National Dock LabQur Board [1953] 2 Q.D. 18, 41; per
Lord Merriman in Taylor v. National Assistance Board [1956] P. 470, 494; per Upjohn
L.J. inPunton v. Ministry ofPensions and National Insurance [1963] 1 W.L.R. 186, 192ff.
JUNE 1967] Judicial Review for Error ofLaw 181

none of the category of semi-skilled workers to which they belonged had

been 'directly interested in the dispute '.44 It was conceded throughout
that the decision could have been challenged for error of law on the face
of the record by means of certiorari had that remedy been sought within
the short limitation period of six months. An originating summons
which sought to have the matter determined by declaration was struck
out by Master Jacob but the Court of Appeal held that the originating
summons could be amended to raise a question of law. 45 Lord Denning
adverted to the advantages of the declaration in this context and
Upjohn L.J. agreed with him; while agreeing with the order Diplock L.J.
was not prepared to say in this proceeding that the declaration would
always be an alternative to certiorari. After a declaration had been refused
by Phillimore J. in the exercise of his discretion46 the matter was taken
again to the Court of Appeal; but this time the Court was differently
constituted. The Court expressed the opinion that there was no jurisdic-
tion to award a declaration in these circumstances. 47 Sellers L.I. thought
that the restrictive decision on alternative remedies in Barraclough v.
Brown48 was apposite even though certiorari would have been available
at the proper time. It seems however that his decision was mainly based
on the distinction between certiorari to quash and a mere declaration
which would leave two conflicting decisions standing-that of the insur-
ance commissioners and that of the Court. This distinction again turns
on the proposition that an error of law does not invalidate a decision
and that a declaration cannot itself invalidate an administrative decision
in these circumstances. Curiously enough Sellers L.J. relied upon a
dictum of Denning L.I. in Healey v. Minister of Health 49 to the effect
that a declaration might leave two inconsistent findings standing. How-
ever earlier in that case Denning L.J. had made it clear that the courts
did have power to declare a decision invalid if it was wrong in law50
and the difficulty in Healey was that a rehearing was sought without there
being any allegation of defect of jurisdiction or error of law.
Some sympathy can be felt for the attitude adopted by Sellers L.J.51
in the general context of review for error of law; he was attempting to
give some finality to administrative decisions. It may be doubted, how-
ever, whether much is gained by insisting upon a technical distinction
between certiorari and the declaratory judgment. Very recently the Court
•• The statutory phrase.
.u Punton v. Ministry of Pensions and National Insurance [1963] 1 W.L.R. 186.
ot6 [1963] 2 All E.R. 693.

ot7 Punton v. Ministry of Pensions and National Insurance (No.2) [1964] 1 W.L.R.
226. The Court found it unnecessary to decide this; it merely affirmed the decision
of Phillimore J.
.. [1897] A.C. 615. And see Argoson Finance Co. Ltd v. Oxby [1964] 1 All E.R. 791 .
• 9 [1955] 1 Q.B. 221, 228.

50 Ibid. 227.

51 And concurred in by'Danckwerts and Davies L.IJ.

182 Federal Law Review [VOLUME 2

of Appeal52 has again asserted the jurisdiction to award a declaration

when an administrative body has committed an error of law53 but this
time considerable emphasis was placed upon the fact that valuable
property rights were involved.

Statutory Review
The most significant impact of review for error of law has developed
out of the practice of providing legislatively for review by the courts
of the decisions of officials and administrative tribunals for error of law,
or where a question or point of law is involved. Indeed, the majority
of decisions on the scope of review have arisen out of statutory appeal
procedures. In England the Tribunal and Inquiries Act, 1958 (Eng.) has
extended such review to a large number of administrative tribunals. In
Australia the majority of statutory review provisions occur in the context
of taxing legislation 54 but there is gradual extension into other areas.
Sometimes the provision is direct55 and sometimes it is indirect. 56
The pattern of remedies presents as much bewildering complexity as
the concept of ' error of law' itself. We, in Australia, are now at a stage
where draconic action to unravel the sorry mess is needed as a matter
of urgency. Surely the present complexities and uncertainties cannot be
tolerated indefinitely. I join with Professor Sawer57 in seeking introduction
of administrative courts properly staffed by judges and administrators
who are aware of the administrative difficulties posed by the modern
welfare state.

52 This time constituted by Lord Denning and Danckwerts and Salmon L.Jl.
53 Munnich v. Godstone R.D.C. [1966] 1 W.L.R. 427.
54 E.g. see Gift Duty Assessment Act 1941-1963 (Cth) SSe 32 (7.), 33 (9.); Pay-roll
Tax Assessment Act 1941-1966 (Cth) s. 40 (5.); Income Tax Assessment Act 1936-1966
(Cth) s. 196; Estate Duty Assessment Act 1914-1966 (Cth) SSe 25 (7.), 26 (9.); Land
Tax Act 1958 (Vic.) s. 32; Land Tax Act, 1936-1966 (S.A.) s. 52 (7); Land Tax Assess-
ment Act, 1907-1965 (W.A.) s. 48 (4); Land and Income Taxation Act 1910 (Tas.)
s.149.
55 E.g. see Matrimonial Causes Act 1959-1966 (Cth) s. 91; Trade Practices Act
1965-1966 (Cth) s. 63; Workers' Compensation Act, 1926-1966 (N.S.W.) s. 37 (4);
Justices Act, 1902-1966 (N.S.W.) s. 101 (1); Workers Compensation Act 1958 (Vic.)
s. 56 (3); The Land Acts, 1962-1967 (Qld) s. 45 (1); The Industrial Conciliation and
Arbitration Acts, 1961-1964 (Qld) s. 34 (1); Workers' Compensation Act 1912-1966
(W.A.) s. 29 (9); Justices Act 1959 (Tas.) s. 123 (1).
56 E.g. in New South Wales appeals to the Local Government Boards dealing with
subdivisions and buildings are deemed to be submissions to arbitration under the
Arbitration Act, 1902 (N.S.W.). This attracts review for error of law by the Land
and Valuation Court.
57 Sawer, Ombudsman (1964) 41, and passim.