court's duty to ascertain jurisdiction

The court’s duty to ascertainjurisdiction

Cameron Ford*

Where proceedings are limited to questions of law, may acourt accept the concession, or lack of complaint, of aparty that the question is one of law and assumejurisdiction, or is it under an independent duty to deter-mine its jurisdiction and reject the proceeding if thequestion is not one of law, notwithstanding the wishes ofall parties for the proceeding to be heard on the merits?

INTRODUCTION

In a worker’s compensation appeal limited to questions of law,1 the NorthernTerritory Court of Appeal in Wakeling v Qantas Airways Ltd2 doubted the issueraised was one of law, but dealt with the appeal on the merits because therespondent did not press the point. Was this proper deference to the concessionsof the parties, or did the court have a “first duty”, in the words of Griffith CJ whosaid “the first duty of every judicial officer is to satisfy himself that he hasjurisdiction”?3

The point in question in Wakeling was whether a worker’s access toconcessional airline travel formed part of his remuneration and should be takeninto account when calculating his average gross weekly remuneration and,ultimately, “normal weekly earnings”.4 Southwood and Mansfield JJ,5 Mar-tin (BR) CJ agreeing, said:

It is questionable whether the characterisation of the appellant’s access toconcessional airline travel as a gratuitous payment which did not form part of hisremuneration involved an error of law. However, the respondent did not formallychallenge the competency of the appeal either before Thomas J or on the appeal. Nordid the respondent develop the assertion in its written outline of argument that theappeal involved only a question of fact.

The appellant says the error of law in this case is the presiding magistrate, at firstinstance, and subsequently Thomas J on appeal, misinterpreted or misconstrued the

* Barrister; Executive Editor, NTLJ; Editor-in-Chief, NTLR ([email protected]).

1 Workers Rehabilitation and Compensation Act 1986 (NT) s 116(1).

2 Wakeling v Qantas Airways Ltd (2010) 239 FLR 1.

3 Federated Engine-Drivers & Firemen’s Association of Australasia v Broken Hill Proprietary Co Ltd

(1911) 12 CLR 398 at 415, applied by Latham CJ in R v Blakeley; Ex parte Association of Architects,

Engineers, Surveyors & Draughtsmen of Australia (1950) 82 CLR 54 at 70 (Kitto J agreeing at 100)and by Fullagar J at 90-91. See also Hazeldell Ltd v Commonwealth (1924) 34 CLR 442 at 444(Isaacs ACJ; Gavan Duffy J agreeing); Robins v Incentive Dynamics Pty Ltd (in liq) (1999) 91 FCR423 at [40] (Branson, Sackville and Kiefel JJ).

4 Wakeling v Qantas Airways Ltd (2010) 239 FLR 1 at [4].

5 The latter of the Federal Court of Australia, and since June 2009 an Additional Judge of the SupremeCourt of the Northern Territory.

(2011) 2 NTLJ 13 13

meaning of “average gross weekly remuneration” in subparagraph (d)(ii) of the

definition of “normal weekly earnings” in s 49(1) of the Act when calculating the

appellant’s normal weekly earnings.

As the respondent did not formally challenge the competency of the appeal, it was

appropriate in this instance to hear the appeal. It is sufficient to observe that the

contention of the appellant on the competency of the appeal was not clearly

incorrect.6

Was this the correct approach or should the court have invited submissions7

on whether the issue was one of fact or law, or considered the question as part ofits determination of the appeal?8 Ultimately, the court dismissed the appeal on themerits. This may have been one reason it was not so concerned to explore theproceeding’s competency. Had it thought there was merit in the appeal, it mightwell have felt constrained to examine competency to a greater depth.

A DUTY TO ASCERTAIN JURISDICTION

Griffith CJ in Federated Engine-Drivers & Firemen’s Association of Australasia

v Broken Hill Proprietary Co Ltd said:

But the first duty of every judicial officer is to satisfy himself that he has jurisdiction,

if only to avoid putting the parties to unnecessary risk and expense. In this respect a

grave responsibility rests upon the President, whose jurisdiction is limited both by the

Constitution and the Act. This responsibility is not diminished by the possibility that

he may be misled by imperfect or erroneous information. The mode of satisfying

himself may vary in different cases. In most cases that come before an ordinary Court

of law it is not necessary to make any inquiry on the subject, although in some cases

it is. In dealing with the question of jurisdiction the President must exercise his

discretion as to the evidence which he will receive and upon which he will act, and is

no more fettered in that exercise than in receiving evidence upon any other matter in

his Court. I do not think that in this respect the amendment of sec 25 makes any

difference.9

His Honour was not limiting his comments to where a party challengesjurisdiction, but was describing a general duty to ascertain jurisdiction.

Similarly, Barton J said:

It is as wrong to accept jurisdiction without sufficient inquiry as to refuse it with

precipitancy. Where the jurisdiction is disputed, adequate and careful inquiry is still

the duty of the Court of first instance, just as it may become the duty of the superior

Court. On the other hand, where the jurisdiction is not contested by the party

defending, very slight inquiry may be adequate, and many cases will to the mind of

6 Wakeling v Qantas Airways Ltd (2010) 239 FLR 1 at [27]-[29], citing Murwangi Community

Aboriginal Corp v Carroll (2002) 12 NTLR 121; Wilson v Lowery (1993) 4 NTLR 79.

7 As was done by Roberts-Smith J in Jewel Walk Pty Ltd v Kondinin Group Inc [2001] WASC 264at [19] and Keely J in Amalgamated Metal Workers’ & Shipwrights’ Union v Carey (1981) 54 FLR386.

8 As was done by Walsh J in Krew v Federal Commissioner of Taxation (1971) 45 ALJR 324 at 325.

9 Federated Engine-Drivers & Firemen’s Association of Australasia v Broken Hill Proprietary Co Ltd

(1911) 12 CLR 398 at 415, referring to the responsibility of the President of the Federal ArbitrationCourt under the Commonwealth Conciliation and Arbitration Act 1904 (Cth).

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the tribunal be so plainly within its competence that it will rightly forego inquiryunless the objection is taken, and the objector tenders proof of facts in its support.10

Again, the duty to inquire is not imposed only where there is a challenge;rather, the content of the duty is altered depending on how plain it is that the caseis within jurisdiction. Isaacs J made comments to similar effect.11

Likewise, in an earlier case, Federated Amalgamated Government Railway& Tramway Service Association v New South Wales Railway Traffıc EmployeesAssociation, Griffith CJ, with Barton J concurring, said:

A point of jurisdiction, when it is seriously raised, or if it suggests itself to the Courtwithout being taken by a party, cannot properly be disregarded. Nor is a Courtjustified in making an order which it has no jurisdiction to make by the mere fact thatno objection is offered.12

In another case, Khatri v Price, Katz J said:

Because any Australian court is a court of limited jurisdiction, its “first duty”, whenthere has been a purported invocation of its jurisdiction, is to satisfy itself that it hasthe jurisdiction purportedly invoked.13

His Honour went on to consider what it meant to consider jurisdiction “first”,concluding that the court has a discretion as to whether it determines jurisdictionas a preliminary issue or postpones the determination until it has heard the wholecase.

Fullagar J, delivering separate reasons but in the majority with Latham CJand Webb and Kitto JJ in R v Blakeley, immediately before citing the dictum ofGriffith CJ, said:

Generally speaking, when a tribunal, other than a superior Court in the technicalsense, is called upon to exercise jurisdiction, it must, of necessity, begin byconsidering for itself the preliminary question whether it possesses the jurisdictioninvoked. That question may depend on questions of law or questions of fact or onquestions both of law and of fact.14

Excepting superior courts from the general rule would be due to them beingconsidered courts of unlimited jurisdiction and therefore by definition in no needof determining their jurisdiction as a preliminary question.15 However, at leastsince 1987, it has been recognised there is no court of truly unlimited jurisdictionin Australia, with Toohey J saying in Jackson v Sterling Industries Ltd:

10 Federated Engine-Drivers & Firemen’s Association of Australasia v Broken Hill Proprietary Co

Ltd (1911) 12 CLR 398 at 428.

11 Federated Engine-Drivers & Firemen’s Association of Australasia v Broken Hill Proprietary Co

Ltd (1911) 12 CLR 398 at 454, quoting Coleridge J in Bunbury v Fuller (1853) 9 Ex 111 at 140;[1853] ER 768.

12 Federated Amalgamated Government Railway & Tramway Service Association v New South Wales

Railway Traffıc Employees Association (1906) 4 CLR 488 at 495.

13 Khatri v Price (1999) 95 FCR 287 at [14] (emphasis added), citing Griffith CJ in Federated

Engine-Drivers & Firemen’s Association of Australasia v Broken Hill Proprietary Co Ltd (1911) 12CLR 398 at 415.

14 R v Blakeley; Ex parte Association of Architects, Engineers, Surveyors & Draughtsmen of Australia

(1950) 82 CLR 54 at 90-91.

15 Support for this interpretation of his Honour’s comments can be found in the judgment of Finn J inOffıcial Trustee in Bankruptcy v Nedlands Pty Ltd (in liq) (2000) 99 FCR 554 at [14].

The court’s duty to ascertain jurisdiction

(2011) 2 NTLJ 13 15

The Federal Court is a creature of statute, but so too are the superior courts and other

courts of this country. The High Court itself has the jurisdiction conferred upon it by

the Constitution and Acts of the Parliament. Though it is common to speak of the

inherent jurisdiction possessed by superior courts of unlimited jurisdiction, in truth

there is within the federal system of this country no court of unlimited jurisdiction.16

Particularly where the jurisdiction of a superior court is expressly subject tosome condition, it is suggested that those courts are not exempt from thenecessity of at least turning their mind to jurisdiction in the way suggested byGriffith CJ and Barton J in Federated Engine-Drivers. In most cases whereobjection is not taken there will be no issue, but there may be some cases wherethe parties wrongly assume that the court has jurisdiction,17 or for their ownreasons concede a non-existent jurisdiction.18

Kirby J19 expressed the duty somewhat differently in Old UGC Inc v

Industrial Relations Commission (NSW), where he said:

Indeed, it is the first duty of judicial and quasi-judicial bodies, when a question oftheir jurisdiction and powers is raised, to satisfy themselves as to such jurisdictionand as to their power to afford the relief claimed.20

There his Honour could be taken to be suggesting that the duty only ariseswhere one of the parties raises the question of jurisdiction. However, his Honourreferred to a question being raised, which could equally be a question beingraised in the mind of the tribunal.21 This would accord with the words ofGriffith CJ in the Federated Amalgamated Government Railway & TramwayService case, cited by Kirby J, where the Chief Justice said the duty wasindependent of the question being raised by the parties.

Speaking of constitutional challenges to jurisdiction, Kirby J in Re Boulton;Ex parte Construction, Forestry, Mining & Energy Union may be taken assuggesting the duty only arises when a party challenges jurisdiction. His Honoursaid:

Every court or tribunal in this country must, where objection is taken to itsjurisdiction, determine that objection as a preliminary question. If it has no lawfuljurisdiction it may not assume that it has and it ought not to pretend that it has.22

His Honour was not limiting courts inquiring into their jurisdiction to caseswhere objection had been taken. He was simply saying that, where an objection istaken, the court must determine jurisdiction. He did not say that where no

16 Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 630.

17 As in Truman v Natwest Investments Australia Pty Ltd (unreported, FCA, Gummow J, No P710 of1989, 14 February 1990), discussed below.

18 As in National Union of Workers v Pacific Dunlop Tyres Pty Ltd (1992) 37 FCR 419 at 427(Heerey J).

19 Dissenting, but not on this point.

20 Old UGC Inc v Industrial Relations Commission (NSW) (2006) 225 CLR 274 at [51].

21 See also the comments of Gibbs J in R v Federal Court of Australia; Ex parte WA National

Football League (1979) 143 CLR 190 at 215, quoting Devlin J in R v Fulham, Hammersmith &

Kensington Rent Tribunal; Ex parte Zerek (1951) 2 KB 1 at 10.

22 Re Boulton; Ex parte Construction, Forestry, Mining & Energy Union (1998) 73 ALJR 129 at 133.

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objection is taken the court need not consider its jurisdiction. That would be at

odds with his second sentence and his later comments in Old UGC Inc cited

above.

The inevitable conclusion is that courts are under a duty to ascertain their

jurisdiction where a party raises the question or where the question is raised in

the mind of the tribunal. Indeed, it could be taken further to say that courts are

under a positive duty to consider their jurisdiction independently of any issue

being raised by a party.

NO JURISDICTION BY CONSENT

Jurisdiction cannot be conferred on a court by consent of the parties23 or by a

concession by one of them.24 Gummow J, while a member of the Federal Court,

said in Truman v Natwest Investments Australia Pty Ltd:

As the litigation in Thomson Australian Holdings Pty Ltd v Trade Practices

Commission (1981) 148 CLR 150 at 163-164 illustrates, there can be no general

principle that when an order is consented to by all parties, the court ought to make it.

Where there is a condition precedent to the exercise of the jurisdiction in question and

the legislature has committed to the court the responsibility to determine whether

orders should be made, consent of the parties would not, one should have thought, be

sufficient.25

His Honour was there dealing with a proceeding which had been transferred

by consent from the Supreme Court to the Federal Court, purportedly under the

cross-vesting legislation.26 It was, his Honour said, a “condition of jurisdiction”

that there had been a valid order of the transferring court27 and that, if the issue

arose, it was for the receiving court “to determine whether the conditions of its

jurisdiction have been satisfied”.28 Consent of the parties to the transfer did not

cure jurisdictional defects or relieve the court of its obligation to determine

jurisdiction.

Heerey J in National Union of Workers v Pacific Dunlop Tyres Pty Ltd,

dealing with a suggestion that the parties had entered an enforceable agreement to

be bound by the court’s decision, said:

23 Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 at 163(Gibbs CJ, Stephen, Mason and Wilson JJ), 167 (Murphy J); Commissioner of Taxation (NT) v

Tangentyere Council (1992) 2 NTLR 76.

24 Fingleton v The Queen (2005) 227 CLR 166 at [196] (Hayne J).

25 Truman v Natwest Investments Australia Pty Ltd (unreported, FCA, Gummow J, No P710 of 1989,14 February 1990) at [24].

26 Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth); Jurisdiction of Courts (Cross-Vesting) Act

1987 (NSW).




(2011) 2 NTLJ 13 17

In any case, since consent cannot create jurisdiction (see Thomson Australian

Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 at 163) there

could be no binding contract to confer jurisdiction.29

Further, in Boglari v Steiner School & Kindergarten, Neave JA, Chernov JAand Habersberger AJA agreeing, said:

A jurisdictional issue of this kind does not fall within the principle in Whisprun Pty

Ltd v Dixon [(2003) 77 ALJR 1598] where the issue was whether a concession made

in proceedings below prevented the party making the concession from arguing a

particular point on appeal.30

Her Honour cited Fingleton v The Queen where, in the context of a criminalcase, the High Court permitted an appellant to raise for the first time a statutoryimmunity which was a complete answer to the charges of which she had beenconvicted. Speaking of the respondent’s concession that the court shouldentertain the fresh ground, Hayne J said:

Effect must be given to that concession. It is not a concession about the Court’s

jurisdiction. That would not bind the Court. But, after Crampton [(2000) 206 CLR

161], there is no question about the Court’s jurisdiction.31

By not pressing the point, the respondent in Wakeling effectively consentedto the court entertaining the appeal or made a concession that the appeal wascompetent. Was this the same as consenting to or conceding jurisdiction? Thatleads to the question of whether the competency of the appeal – to use thecourt’s, and a common, word – went to jurisdiction or to something less whichcould be conceded.

“Competency” is generally taken to refer to the right of a party to make, andthe jurisdiction of a court to entertain, a particular proceeding. In AMS v AIF,Gleeson CJ, McHugh and Gummow said:

This appeal should be disposed of on the basis that s 39(2) [of the Judiciary Act 1903(Cth)] invested the State Family Court with federal jurisdiction and invested the FullCourt of the Supreme Court with appellate federal jurisdiction so as to rendercompetent the appeal to the Full Court. No contrary submission was made. Nor was itcontended that the appeal to the Full Court had been incompetent.32

In Baxter v Commissioners of Taxation (NSW), Isaacs J said:

The opening words of sec 74 [of the Constitution (Cth)] are in the negative: “Noappeal shall be permitted to the Queen in Council from a decision of the High Court.”This makes the Privy Council incompetent to hear such an appeal, just as in the NorthBritish Railway Co v Wauchope [(1862) 4 Macq 348 at 352] Lord Westbury LC saidthe House of Lords was by very similar words not competent to hear that appeal.33

There is no reason to suppose the Court of Appeal was using the word in anydifferent sense.

29 National Union of Workers v Pacific Dunlop Tyres Pty Ltd (1992) 37 FCR 419 at 427.

30 Boglari v Steiner School & Kindergarten (2007) 20 VR 1 at [55].

31 Fingleton v The Queen (2005) 227 CLR 166 at [196]. See also Gleeson CJ at [6], McHugh Jat [59], Gummow and Heydon JJ at [120] and Kirby J at [160], [182].

32 AMS v AIF (1999) 199 CLR 160 at [27].

33 Baxter v Commissioners of Taxation (NSW) (1907) 4 CLR 1087 at 1150.

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One matter should be mentioned for completeness. While parties cannotconfer jurisdiction by consent, they may by their purported consensual conferralconstitute the court as their arbiter and be bound by the result. In Meyers v Casey,Isaacs J said:

It is true no consent of parties can supplement the law of the land so as to give atribunal any jurisdiction to dispense the King’s justice, which the law does not itselfconfer. The law provides the exact measure of that jurisdiction, and no privatearrangement can add to it or take from it. But, dispensing the King’s justice is onething; settling a private dispute so as to bind the parties according to agreementexpress or implied is another. And even where the Judge of a public Court is invitedto act outside his statutory jurisdiction, the parties may be bound. Lord Watson, forthe Privy Council, in Ledgard v Bull [1886) LR 13 IA 134 at 145] said: “When theJudge has no inherent jurisdiction over the subject matter of a suit, the parties cannot,by their mutual consent, convert it into a proper judicial process, although they mayconstitute the Judge their arbiter, and be bound by his decision on the merits whenthese are submitted to him.”34

This is different from granting the court judicial jurisdiction and does notaffect this argument, particularly where the issue is a right under a statute.

DOES THE QUESTION OF FACT VS LAW GO TO JURISDICTION?

Many statutes provide a right of appeal on questions of law only. Does this meanthat an appellate court lacks jurisdiction to deal with an appeal on questions offact or may a respondent consent to, concede or acquiesce in an appeal on factalone? It is clear that, subject to statutory provisions to the contrary, whether aquestion is one of law goes to the jurisdiction of the court where an appeal islimited to those questions.

The starting point must be the statute conferring jurisdiction. As Kirby J saidin Coal & Allied Industries Pty Ltd v Australian Industrial RelationsCommission:

In every case where the issue is that of the duty and function of an appellate court ortribunal, the only safe starting point is a careful examination of the language andcontext of the statutory provisions affording the appellate right, together with aconsideration of the powers enjoyed by, and duties imposed on, the body to which theappeal lies.35

The right of appeal in Wakeling was conferred by s 116(1) of the WorkersRehabilitation and Compensation Act 1986 (NT), which provided:

Subject to subsection (3), a party to a proceeding before a magistrate of the Courtwho is aggrieved by a decision or determination of the magistrate may appeal againstthe decision or determination on a question of law to the Supreme Court within thetime and in the manner prescribed by the Rules of the Supreme Court.

General appellate jurisdiction is conferred on the Supreme Court by s 14(1)of the Supreme Court Act 1979 (NT) in the following terms:

34 Meyers v Casey (1913) 17 CLR 90 at 117.

35 Coal & Allied Industries Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR194 at [69], applied by Weinberg CJ of the Supreme Court of Norfolk Island in Grube v Minister for

Lands and the Environment (2005) 194 FLR 54 at [45].


(2011) 2 NTLJ 13 19

(1) In addition to the jurisdiction conferred on it elsewhere by this Act, the Court –

...

(e) has jurisdiction, with such exceptions and subject to such conditions as are

provided by a law in force in the Territory, to hear and determine appeals

from all judgments of inferior courts in the Territory given or pronounced

after the commencement of this Act.

Combining those two provisions, the Supreme Court has jurisdiction to hear

appeals from the Work Health Court except on questions of fact. Putting it

another way, the Supreme Court does not have jurisdiction to hear an appeal from

the Work Health Court on questions of fact. This interpretation is supported by

principle, logic and authority.

A fundamental principle supporting this interpretation is that appeals are

creatures of statute36 and, in the words of Mildren J, Martin (BF) CJ and

Thomas J agreeing, in Alice Springs Town Council v Mpweteyerre Aboriginal

Corp:

It is well established that whenever a new court is established, there is no appeal from

it unless it is conferred by statute: Holmes v Angwin (1906) 4 CLR 297 at 304 per

Griffith CJ. It is a necessary corollary of that principle that both the nature of the

appeal and the powers of the court in disposing of the appeal must be found in the

wording of the statute: Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124

CLR 192 at 202 per Windeyer J.37

Conferring a right of appeal on a party has the effect of extending the

jurisdiction of the court to which the appeal is made. In Attorney-General v

Sillem, Lord Westbury said:

Suppose the Legislature to have given to either tribunal, that is, to the Court of the

First Instance, and to the Court of Error or Appeal respectively, the fullest power of

regulating its own practice or procedure, such power would not avail for the creation

of a new right of appeal, which is in effect a limitation of the jurisdiction of one

Court, and an extension of the jurisdiction of another. A power to regulate the practice

of a Court does not involve or imply any power to alter the extent or nature of its

jurisdiction.38

36 State Rail Authority (NSW) v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306 at [72];Attorney-General v Sillem (1864) 10 HL Cas 703 at 720-721; 11 ER 1200 at 1207-1208; South

Australian Land Mortgage & Agency Co Ltd v The King (1922) 30 CLR 523 at 553; Victorian

Stevedoring & General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at 108; Commissioner

for Railways (NSW) v Cavanough (1935) 53 CLR 220 at 225; Grierson v The King (1938) 60 CLR431 at 436; Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192 at 202(Windeyer J); Gipp v The Queen (1998) 194 CLR 106 at [117]; Merribee Pastoral Industries Pty Ltd

v ANZ Banking Group Ltd (1998) 193 CLR 502 at [18]; CDJ v VAJ (1998) 147 CLR 172; Fleming v

The Queen (1998) 197 CLR 250 and cases there cited; Baxter v Commissioners of Taxation (NSW)

(1907) 4 CLR 1087 (Griffith CJ, Barton and O’Connor JJ); Holmes v Angwin (1906) 4 CLR 297at 304 (Griffith CJ).

37 Alice Springs Town Council v Mpweteyerre Aboriginal Corp (1997) 115 NTR 25 at 35, quotingfrom his earlier decision in Wormald International (Aust) Pty Ltd v Aherne (unreported, NTSC,Mildren J, No 28 of 1994, 23 June 1995).

38 Attorney-General v Sillem (1864) 10 HL Cas 703 at 720-721; 11 ER 1200 at 1208.

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There, by rules of court, judges39 had endeavoured to grant a right of appealfrom their decisions to an appeal court.40 Since this involved a limitation of theirjurisdiction and an extension of the appellate court’s jurisdiction, it was held tobe beyond the rule-making power.41

That being the case, logic suggests that the court’s jurisdiction to entertain anappeal is reflective of a party’s right to appeal. Where a party has no right toappeal, the court has no jurisdiction to hear an appeal. It suggests that therequirement that the question appealed be one of law goes to the jurisdiction ofthe appellate court, not something less. Witnessing this are the words of Isaacs Jin Baxter quoted above that the Privy Council was incompetent to hear theappeal.

Many authorities support this contention. In Tiver Constructions Pty Ltd vClair, Mildren J, Martin and Gallop JJ agreeing, said:

An appeal to the Supreme Court is restricted to a question of law (s 26(1) [of theWorkers’ Compensation Act 1949 (NT)]) and an appeal from that Court to thisobviously cannot be on any other question, particularly, one involving a question offact. No more than did his Honour, this Court has no jurisdiction to control findingsof fact of the Workers’ Compensation Court.42

Dixon J said in Smith v Mann, referring to a case being stated by theWorkers’ Compensation Commission for the Supreme Court on questions of lawonly:

Accordingly, the statement of a case after award becomes a means of invoking thejurisdiction of the Supreme Court so that it may revise or reconsider, within the limitsof the question of law raised, the determination of the Commission.43

This statement was endorsed by Dixon CJ, Williams, Webb and Taylor JJ,McTiernan J agreeing, in Zuijs v Wirth Brothers Pty Ltd.44

Further, Kirby J in Roncevich v Repatriation Commission said:

The Federal Court’s jurisdiction in the present case derived from s 44 of theAdministrative Appeals Tribunal Act 1976 (Cth). It was limited to an “appeal”, beingone “on a question of law” … But because there was evidence to sustain theconclusion, notably the evidence of Sergeant Lee, it was one which the Federal Courthad no jurisdiction to disturb within its limited powers in an “appeal”.45

His Honour also said:

39 The Lord Chief Baron and three of the Barons of the Court of Exchequer.

40 The Court of Exchequer Chamber.

41 The Australian authority on this point is Harrington v Lowe (1996) 190 CLR 311. See also Ford C,“Advocates’ Liability for Wasted Costs” (2005) 16 ILJ 153 at 155-156.

42 Tiver Constructions Pty Ltd v Clair (1992) 110 FLR 239 at 255.

43 Smith v Mann (1932) 47 CLR 426 at 446.

44 Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561 at 574.

45 Roncevich v Repatriation Commission (2005) 222 CLR 115 at [66].


(2011) 2 NTLJ 13 21

If “perverse” findings of fact are protected from disturbance by courts limited to a

jurisdiction confined to correcting errors on questions of law, a conclusion which is

far from “perverse” is even more obviously protected from disturbance.46

Relevantly here, his Honour spoke of the jurisdiction of the court being limited to

questions of law, not merely its powers or some other attribute.

In Tracy Village Sports & Social Club v Walker, Mildren J said:

It is necessary to bear in mind the limited powers of this Court on an appeal of this

nature. The supervisory jurisdiction of this Court is limited to the question of whether

or not there is an error of law. This Court has no jurisdiction to correct factual

errors.47

The Full Federal Court dealt with the issue in Federal Commissioner of

Taxation v Swansea Services Pty Ltd:

From the board’s decision, the Commissioner appealed to the Supreme Court. For

that Court to have jurisdiction, it was necessary, pursuant to the then s 196(1), that a

question of law be involved in the appeal.48

In Federal Commissioner of Taxation v Cooper, Hill J, Lockhart and

Wilcox JJ agreeing, said:

Whether a question of law was involved in the appeal from the Board of Review to

the Supreme Court has been considered by Hill J in his reasons for judgment which I

have read in draft form. I agree with him that more than one question of law was

involved in the appeal and generally with his reasons in support of that conclusion.

The Supreme Court therefore had jurisdiction to determine the appeal.49

His Honour went on to say:

It is a prerequisite of jurisdiction that the question of law as identified be really and

not colourably involved: Fisher v Deputy Federal Commissioner of Taxation (1966)

40 ALJR 328; Lombardo v Federal Commissioner of Taxation (1979) 40 FLR 208 per

Franki J (at 215).50

Sitting alone on a taxation appeal limited to questions of law, Gibbs J said in

XCO Pty Ltd v Federal Commissioner of Taxation:

Moreover it is immaterial for purposes of jurisdiction whether or not the question of

law involved was erroneously decided by the Board (see Krew v Federal

Commissioner of Taxation [(1971) 45 ALJR 324 at 325] and cases there cited).51

In Attorney-General (Cth) v Breckler, Gleeson CJ, Gaudron, McHugh,

Gummow, Hayne and Callinan JJ said:

46 Roncevich v Repatriation Commission (2005) 222 CLR 115 at [68].

47 Tracy Village Sports & Social Club v Walker (1992) 111 FLR 32 at 37-39.

48 Federal Commissioner of Taxation v Swansea Services Pty Ltd (2009) 72 ATR 120 at [56],McKerracher J quoting from Federal Commissioner of Taxation v Cooper (1991) 29 FCR 177 at 192.

49 Federal Commissioner of Taxation v Cooper (1991) 29 FCR 177 at 181.

50 Federal Commissioner of Taxation v Cooper (1991) 29 FCR 177 at 195.

51 XCO Pty Ltd v Federal Commissioner of Taxation (1971) 124 CLR 343 at 348.

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We have referred to the operation of s 46 of the Complaints Act [Superannuation(Resolution of Complaints) Act 1993 (Cth)] to confer jurisdiction upon the FederalCourt with respect to an “appeal” on a question of law from a determination of theTribunal.52

Section 46(1) of the Superannuation (Resolution of Complaints) Act 1993(Cth) provides:

A party may appeal to the Federal Court, on a question of law, from the determinationof the Tribunal.

Those words, held by the High Court to be a conferral of jurisdiction, arematerially the same as the words in the Northern Territory Act creating the rightof appeal from the Work Health Court to the Northern Territory Supreme Court.

Gibbs CJ, Brennan, Deane and Dawson JJ said in Harris v Director-Generalof Social Security:

The jurisdiction of the Federal Court of Australia is limited to appeals from theTribunal on questions of law (s 44(1) of the Administrative Appeals Tribunal Act1975 (Cth)), though that Court “may make such order as it thinks appropriate byreason of its decision” (s 44(4)).53

Section 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth)provides:

A party to a proceeding before the Tribunal may appeal to the Federal Court ofAustralia, on a question of law, from any decision of the Tribunal in that proceeding.

French J, as he then was in the Federal Court, said in Federal Commissionerof Taxation v Swift:

The function of the Court on an appeal under subs 44(1) of the AdministrativeAppeals Tribunal Act is limited to resolving the question or questions of law uponwhich the appeal is brought. In so doing it exercises a narrower jurisdiction than thatpreviously conferred on the Supreme Courts of the States by s 196 of the Income TaxAssessment Act which allowed for appeals from Taxation Boards of Review onmatters “involving a question of law” and thus, upon identification of a question oflaw, conferred jurisdiction in respect of the whole of the disputed decision –Committee of Direction of Fruit Marketing v Australian Postal Commission (1979) 37FLR 457, 467 (Northrop J); Brown v Repatriation Commission (1985) 60 ALR 289,291 (Full Court); Waterford v Commonwealth of Australia (1987) 71 ALR 673, 689(Brennan J); Commissioner of Taxation v Brixius (1987) 16 FCR 359, 363 (FullCourt); TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation(1988) 82 ALR 175, 178 (Gummow J).54

His Honour then said:

This discussion and the cases mentioned turn upon the phrase “question of law”which confines the jurisdiction of the Federal Court in an appeal from the Tribunal.55

Referring to the Full Federal Court’s decision in Brown v RepatriationCommission, Weinberg CJ of the Norfolk Island Supreme Court said in Grube vMinister for Lands and the Environment:

52 Attorney-General (Cth) v Breckler (1999) 197 CLR 83 at [34].

53 Harris v Director-General of Social Security (1985) 59 ALJR 194 at 198.

54 Federal Commissioner of Taxation v Swift (1989) 20 ATR 1434 at 1447.

55 Federal Commissioner of Taxation v Swift (1989) 20 ATR 1434 at 1448.


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The question that arose in that case was whether the appeal was limited toconsideration of the question of law only, or whether, once that question had beensufficiently identified to engage the Court’s jurisdiction, the appeal extended to arehearing of the whole matter.56

His Honour went on to say:

The foregoing, necessarily incomplete, review of the kinds of questions that canproperly be described as questions of law is intended to provide a framework withinwhich to assess which, if any, of the appellants’ claims properly engage thejurisdiction of this Court.57

In Brown v Repatriation Commission, the Full Federal Court had said:

The existence of a question of law is not merely a qualifying condition to ground anappeal from a decision of the Tribunal; rather, it and it alone is the subject matter ofthe appeal, and the ambit of the appeal is confined to it.58

While a member of the Federal Court, Deane J, Fisher J agreeing, said inDirector-General of Social Services v Chaney:

The jurisdiction of this Court in relation to proceedings before the Tribunal is thatconferred by s 44, s 44A and s 45 of the [Administrative Appeals Tribunal] Act. Forpresent purposes, that jurisdiction is the jurisdiction to hear and determine, in theoriginal jurisdiction of the court, an “appeal … on a question of law, from anydecision of the Tribunal” in a proceeding before the Tribunal (s 44), the jurisdiction tohear and determine any question of law referred to it by the Tribunal (s 45) and thejurisdiction to make interim orders in a case where an appeal from a decision of theTribunal has been instituted (s 44A).59

In Regional Director of Customs (WA) v Dampier Salt (Operations) Pty Ltd,the Full Federal Court said:

That “appeal” is a proceeding in the original jurisdiction of this Court and is anappeal on, that is to say limited to, a question of law. Having regard to the 1995Amending Act, the learned primary judge was of the view that the identification ofthe question of law on the part of the Tribunal, the precondition to jurisdiction of theCourt, fell to be determined in accordance with the law in force prior to the 1995Amending Act.60

Using the word “competent” to refer to the court having jurisdiction, Walsh Jsitting alone in Krew v Federal Commissioner of Taxation said:

I have stated that I think there are questions of law which make the appealcompetent.61

56 Grube v Minister for Lands and the Environment (2005) 194 FLR 54 at [48], referring to Brown v

Repatriation Commission (1985) 7 FCR 302.

57 Grube v Minister for Lands and the Environment (2005) 194 FLR 54 at [87].

58 Brown v Repatriation Commission (1985) 7 FCR 302 at 304 (Bowen CJ, Fisher and Lockhart JJ).

59 Director-General of Social Services v Chaney (1980) 47 FLR 80 at 99.

60 Regional Director of Customs (WA) v Dampier Salt (Operations) Pty Ltd (1996) 67 FCR 108 at 113(Einfeld, Hill and Carr JJ) (emphasis added).

61 Krew v Federal Commissioner of Taxation (1971) 45 ALJR 324 at 326. See also Williams J inFederal Commissioner of Taxation v Sagar (1946) 71 CLR 421 at 423; Ruhamah Property Co Ltd v

Federal Commissioner of Taxation (1928) 41 CLR 148 at 151 (Latham CJ, Gavan Duffy, Powers andStarke JJ), 155 (Isaacs J dissenting but not on this point).

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Countless other examples may be found62 all pointing to the same conclusionthat where an appeal is limited to a question of law, the court does not havejurisdiction to entertain an appeal where no such question arises. A question oflaw is a precondition to, or a prerequisite of, the court’s jurisdiction. Without aquestion of law, the court’s jurisdiction is not engaged. The appeal is notcompetent and neither is the court competent to hear the appeal.

WAS THE QUESTION ONE OF LAW?

At issue in Wakeling was whether a worker’s access to concessional airline travelformed part of his remuneration and should be taken into account whencalculating his average gross weekly remuneration and thereby calculating his“normal weekly earnings”.63 Relevant parts of s 49(1) said:

normal weekly earnings, in relation to a worker, means:

(a) subject to paragraphs (b), (c) and (d), remuneration for the worker’s normalweekly number of hours of work calculated at his or her ordinary time rate of pay.

Simplified, the question was whether free travel was part of his remunera-tion. Doubting this was one of law, their Honours cited Murwangi CommunityAboriginal Corp v Carroll where Angel and Riley JJ and Priestley AJ said:

The first issue to be determined is what is included in the expression “remuneration… earned by the worker …” and, in particular, whether the identified non-monetarybenefits received by the worker are to be included. This is a question of fact.64

Dealing with whether certain amounts were remuneration under s 26(e) ofthe Income Tax Assessment Act 1936 (Cth), Hill J, Davies and Whitlam JJagreeing, said in Howell v Federal Commissioner of Taxation:

The present is not a case where it could be said on the evidence that it was not opento the Tribunal to conclude that the amounts in question were remuneration paid toMr Howell. Whether they were involves a question of fact and not of law and is forthe Administrative Appeals Tribunal to decide.65

Naturally, care needs to be taken in using interpretations in one statutorycontext in another; however, it is suggested the principle here is the same.

A differently constituted Court of Appeal recently considered the difficultquestion66 of the difference between a question of law and one of fact in thecontext of a worker’s compensation appeal. In Waylexson Pty Ltd v Clarke, thequestion was whether an injury occurred “in the course of the employment”

62 For example, Local Government Association Workers Compensation Scheme (Whyalla City Corp) v

Hazeal [2007] SAWCT 41 at [6]; Bond Corp Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 193at 211, Re Kwiatek; Ex parte Big J Ltd v Pattison (1989) 21 FCR 374 at 380; Western Australian

Planning Commission v Corker [2005] WASC 64 at [33]; Coober Pedy District Council v Collector of

Customs (1993) 42 FCR 127 at 129; Australian Postal Corp v Matusko (unreported, FCA, Olney J,No VG120 of 1995, 14 May 1996) at [9]; Neal v Secretary, Department of Transport (1980) 29 ALR350 at 354; Repatriation Commission v Thompson (1988) 44 FCR 20 at 25; North Ganalanja

Aboriginal Corp v Queensland (1996) 185 CLR 595 at 639 (McHugh J).

63 Wakeling v Qantas Airways Ltd (2010) 239 FLR 1 at [4].

64 Murwangi Community Aboriginal Corp v Carroll (2002) 12 NTLR 121 at [8].

65 Howell v Federal Commissioner of Taxation (1994) 28 ATR 105 at 110.

66 In the words of Mildren J in Waylexson Pty Ltd v Clarke (2010) 25 NTLR 168 at [26].


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within the meaning of the Act. Mildren J considered whether that question wasone of fact or law in some detail,67 saying essentially that whether facts as foundfall within a statutory term is usually a question of law,68 unless that term is usedaccording to its common understanding, in which case it will be a question of factif different conclusions are reasonably open.69 It will only be a question of law inthat case if only one conclusion is reasonably open.

Whether facts as found fell within the term “in the course of theemployment” was a question of fact where all that could be shown was that adifferent conclusion was reasonably open, even though that phrase may haveacquired a technical legal meaning.70 His Honour said:

Specific error aside, what must be demonstrated to establish an error of law, is thatthere is really only one conclusion reasonably open (or to adopt the expression usedin Hatzimanolis [v ANI Corp Ltd (1992) 173 CLR 473 at 486, 491], a finding to thecontrary was “inevitable”) and that was a conclusion which differs from theconclusion reached by the learned Magistrate.71

Although not expressing it in this way, his Honour effectively found therewas only one conclusion open to the magistrate and that, because he had focusedon the wrong activity,72 he had made an error of law by not coming to that oneconclusion.

Riley J (as he then was) approached the issue differently, saying instead thatthe question went to the legal effects of the facts as found and was therefore aquestion of law.73

The Chief Justice did not indicate a preference for the reasons of Mildren Jor Riley J, simply saying:

I agree that the appeal should be dismissed. The decision of the learned Judge onappeal was correct.74

It is not necessary to consider whether there is a difference between theapproaches of Mildren J and Riley J in Wakeling. While Riley J did not find itnecessary to distinguish between terms of common understanding and those witha purely statutory meaning, it is suggested unlikely he would find the question of

67 Waylexson Pty Ltd v Clarke (2010) 25 NTLR 168 at [26]-[32].

68 Waylexson Pty Ltd v Clarke (2010) 25 NTLR 168 at [27]-[28], citing Tiver Constructions Pty Ltd v

Clair (1992) 110 FLR 239 at 245; Alice Springs Town Council v Mpweteyerre Aboriginal Corp (1997)115 NTR 25 at 35-36; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280at 287; Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47 at 51.

69 Waylexson Pty Ltd v Clarke (2010) 25 NTLR 168 at [30], citing Hope v Bathurst City Council

(1980) 144 CLR 1 at 7 (Mason J; Gibbs, Stephen, Murphy and Aitken JJ concurring); Vetter v Lake

Macquarie City Council (2001) 202 CLR 439 at 450-451 (Gleeson CJ, Gummow and Callinan JJ),477-478 (Hayne J).

70 Waylexson Pty Ltd v Clarke (2010) 25 NTLR 168 at [32].



73 Waylexson Pty Ltd v Clarke (2010) 25 NTLR 168 at [64], citing Tiver Constructions Pty Ltd v Clair

(1992) 110 FLR 239 at 245.

74 Waylexson Pty Ltd v Clarke (2010) 25 NTLR 168 at [1] (Martin (BR) CJ).

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whether a benefit was remuneration to be a question of law given that he is amember of the unanimous court holding to the contrary in Murwangi.

Here, the question was whether the concessional airline travel formed part ofthe worker’s “normal weekly earnings”, a phrase defined in the Act. The answerto that question depended on whether the concession formed part of hisremuneration, a term not defined. So even though the ultimate question waswhether the facts as found fell within a defined term – “normal weekly earnings”– which arguably does not have an ordinary meaning in common speech,75 thatquestion could only be answered by first determining whether the facts fell withina non-defined term – “remuneration” – which certainly has a common meaning.

That reasoning, supported by Murwangi, Wilson v Lowery and Howell whichheld so without debate, indicates that whether a benefit is or is not remunerationis a question of fact.

CONCLUSION

The question appealed in Wakeling was a question of fact. Since the right toappeal was limited to questions of law, so too was the court’s jurisdiction and thecourt lacked jurisdiction to entertain the appeal. Even though the respondent didnot develop its argument that the question was one of fact, the court was under aduty to ascertain its jurisdiction, either by inviting submissions or by alerting theparties that it would determine the issue in the absence of the point being taken.

75 To use the words of Mildren J in Waylexson Pty Ltd v Clarke (2010) 25 NTLR 168 at [31].


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court's duty to ascertain jurisdiction

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