___________________________________________________________________ The “jurisdictional fact doctrine” in NSW local government and environmental planning law Ian Ellis-Jones* First published (2006) 12 LGLJ 16. All rights reserved.

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Errors made with respect to jurisdictional matters, including errors made with respect to so-called “jurisdictional facts”, are reviewable for “jurisdictional error”. A jurisdictional fact is some fact or fact situation which must exist in fact as a condition precedent or essential prerequisite for the primary decision maker to exercise its jurisdiction. Over the past 15 years NSW superior courts have increasingly applied the so-called “jurisdictional fact doctrine” in local government and environmental planning law cases. This article discusses a number of important judicial authorities and seeks to identify what are the key elements or indicators of the presence of a jurisdictional fact situation in a particular statutory formulation. They include the interrelated elements of “objectivity” and “essentiality”, the purpose of the formulation in the overall legislative scheme, the inconvenience, if any, that may arise from the fact situation being held to be jurisdictional, whether the fact situation occurs or arises as a matter for consideration or as a matter to be ultimately adjudicated upon by the tribunal of fact, whether the fact situation occurs or arises in the actual formulation of the grant of substantive power to the tribunal of fact to make the ultimate decision on the merits, and whether the fact situation occurs or arises in a formulation requiring the formation by the tribunal of fact of a specified mental state. Ultimately, it gets down to statutory construction and legislative intention, with the reviewing court having the final say, at least on those matters.

INTRODUCTION The traditional1 doctrine of jurisdictional error, in its modern form, of which the so-called “jurisdictional fact doctrine”2 forms part, can be traced from the 17th century when it came to be used to control the activities of inferior courts and statutory

* Solicitor of the Supreme Court of New South Wales and the High Court of Australia, Senior Lecturer, Faculty of Law, University of Technology, Sydney, and Consultant, Arraj Lawyers, Sydney. 1 There is also a doctrine of “broad” or “extended” jurisdiction error (cf “broad” of “extended” ultra vires) pursuant to which (at least in its most fulsome application) all errors of law go to jurisdiction: see Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147; Re Racal Communications Ltd [1981] AC 374; O’Reilly v Mackman [1983] 2 AC 237; Craig v South Australia (1995) 184 CLR 163. 2 Not all jurists accept that there it is a doctrine as such. For example, in Timbarra Protection Coalition v Ross Mining NL (1999) 46 NSWLR 55 at … Spigelman CJ (Mason P and Meagher JA concurring) stated [at 39]: “The academic literature which describes ‘jurisdictional fact’ as some kind of ‘doctrine’ is, in my opinion, misconceived. The appellation ‘jurisdictional fact’ is a convenient way of expressing a conclusion - the result of a process of statutory construction.”

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tribunals. The doctrine is very similar to the doctrine of ultra vires3 in its modern form which, in the mid-19th century, became a means of ensuring that executive and administrative authorities (particularly local government authorities) acted within their powers. One doctrine speaks in terms of “jurisdiction”, the other in terms of “power”. A jurisdictional error,4 in traditional terms, is of 3 kinds: first, a want (or lack) of jurisdiction;5 secondly, an excess of jurisdiction;6 and thirdly, a wrongful failure or refusal to exercise jurisdiction.7 However, as McHugh J pointed out in Public Service Association of South Australia v Federated Clerks’ Union of Australia, South Australian Branch8 the phrases “want of jurisdiction” and “excess of jurisdiction” are “not terms of art”.9 His Honour went on to say that it is not uncommon for superior courts to use the phrases interchangeably.10 Thus, “acting without jurisdiction” may connote either that the inferior tribunal had no power or authority at all to embark upon making a decision ab initio or that, although it had such power or authority, it had gone further than it ought to have gone. In Baldwin & Francis Ltd v Patents Appeal Tribunal11 Lord Denning said in obiter:

But an excess of jurisdiction in this sense is very different from want of jurisdiction altogether which is, of course determinable at the commencement and not at the

3 The grounds of ultra vires and jurisdictional may appear to be “conceptually indistinguishable” but the distinction between them is not merely terminological. Each ground has a different historical basis and the bulk of the case law in Australia (if no longer in England) continues to treat them as distinguishable. In addition, judicial review by way of jurisdictional error (particularly in relation to decisions of inferior courts) generally has tended to be more restrained than that carried out pursuant to the doctrine of ultra vires. 4 A non-jurisdictional error of law (being an error made within jurisdiction), in traditional terms, is any other error of law. Under the traditional doctrine of jurisdictional law, a non-jurisdictional error of law is unreviewable unless it appears plainly on the face of the record of the inferior court tribunal. In Craig v South Australia (1995) 184 CLR 163 the High Court rejected expansive formulations of the record for the purposes of certiorari and concluded that the record did not include the transcript of the earlier proceedings, nor the reasons for the decision, unless they were actually incorporated in the court or tribunal’s formal order or decision. See, however, s 69(4) of the Supreme Court Act 1970 (NSW) which expressly states that, for the purposes of error of law on the face of the record, the face of the record includes “the reasons expressed by the court or tribunal for its ultimate determination”. 5 See, for example, R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Ltd (1953) 88 CLR 100; Ex parte Wurth; Re Tully (1954) 55 SR (NSW) 47; Potter v Melbourne and Metropolitan Tramways Board (1957) 98 CLR 337. 6 See, for example, R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407. 7 See, for example, Public Service Association of South Australia v Federated Clerks’ Union of Australia, South Australian Branch (1991) 173 CLR 132; Ex parte Minister for Corrective Services (1993) 9 WAR 534. 8 (1991) 173 CLR 132. 9 (1991) 173 CLR 132 at 164. 10 (1991) 173 CLR 132 at 164. 11 [1959] AC 663.

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conclusion of an inquiry (see R v Bolton [(1841) 1 QB 66; 113 ER 1054]). Whereas an excess of jurisdiction is determinable in the course of, or at the end of the inquiry.12

In Parisienne Basket Shoes Pty Ltd v Whyte13 Latham CJ had this to say:

It cannot be said that, whenever a court makes an erroneous decision, it acts without jurisdiction. An order made without jurisdiction - as if a court of petty sessions purported to make a decree of divorce - is not an order at all. It is completely void and has no force or effect.14

Lack of jurisdiction can occur where, for example, a tribunal with limited power purports to deal with some subject-matter outside that power. In the 1680 case of Terry v Huntington15 it was held that a decision tainted by a so-called jurisdictional error was void and that an action in trespass could be brought against any person purportedly acting under the authority of the decision. Hale CB spoke of some of the ways in which jurisdiction could be circumscribed:

And it is to be considered that special jurisdictions may be circumscribed 1. with respect to the subject matter of their jurisdictions; 2. with respect to place; 3. with respect to persons ... and therefore if they give judgment in a cause arising in another place or betwixt private persons or in other matters all is void.16

In Potter v Melbourne and Metropolitan Tramways Board17 the High Court (per Dixon CJ, Webb, Kitto and Taylor JJ) similarly said:

It is evident that the appeal board has a limited power and wherever those limits may be drawn it seems impossible to suppose that it was intended that by its own authority the appeal board should exceed them.18

The appeal board, which had been constituted to hear appeals against “dismissals, fines, deductions from wages, reductions in rank, grade or pay, or other punishments”, lacked jurisdiction to hear the appellant’s purported appeal in respect of his re-classification which was found not to be in the nature of a “punishment”.19

12 [1959] AC 663 at 695. Lords Reid and Tucker regarded the terms as synonymous. 13 (1938) 59 CLR 369. 14 (1938) 59 CLR 369 at 375. 15 (1680) Hardres 480; 145 ER 557. 16 145 ER 557 at 559. See also Groenvelt v Burwell (1700) 1 Ld Raym 454 at 469; 91 ER 1202 at 1212; R v Inhabitants in Glamorganshire (1700) 1 Ld Raym 580; 91 ER 1287 at 1288. 17 (1957) 98 CLR 337. 1820

(1957) 98 CLR 337 at 343-4. 19 (1957) 98 CLR 337 at 344. See also Ex parte Wurth; Re Tully (1954) 55 SR (NSW) 47; Ex parte Wurth; Re Flanagan (1958) 58 SR (NSW) 51.

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In Welch v Nash20 Lord Ellenborough similarly spoke in terms of a misconstruction of the source of jurisdiction:

This is a question of jurisdiction ... Increasing the width of one old highway is neither diverting another old highway nor making a new one and the justices cannot make facts by their determination in order to give to themselves jurisdiction, contrary to the truth of the case.21

However, errors of law came to be classified according to whether or not they went to jurisdiction. In that regard, the reviewing court in judicial review proceedings traditionally has drawn a distinction between:

* unreviewable22 matters of fact or law which are within the original decision maker’s jurisdiction (commonly referred to as “matters going to the merits” or “matters within jurisdiction”), that is, matters which the tribunal of fact alone is to decide; and

* reviewable23 matters of fact or law which are outside the original decision

maker’s jurisdiction (so-called “jurisdictional matters”), that is, matters which have to be established either as a condition precedent for the decision maker to exercise its jurisdiction or which otherwise have to be satisfied in the course of exercising jurisdiction (being, in either case, matters that by their nature are “extrinsic” or “ancillary” to the actual process of consideration, evaluation, assessment and determination of the ultimate matters to be adjudicated upon in the course of decision making).

Thus, in the 1668 case of Terry v Huntington24 Hale CB spoke of the reviewing court’s limited role in the following terms:

But if they should commit a mistake in a matter that were within their power, that would not be examinable here.25

20 (1807) 8 East 394; 103 ER 394. 21 103 ER 394 at 402-3. 22 In the absence of some statutory right of appeal or review. 23 Irrespective of the existence of some statutory right of appeal or review. 24 (1668) Hardres 480. 25 (1668) Hardres 480 at 483.

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In Parisienne Basket Shoes Pty Ltd v Whyte26 Dixon J (as he then was) pointed out that:

... the clear distinction must be maintained between want of jurisdiction and the manner of its exercise. Where there is a disregard of or failure to observe the conditions, whether procedural or otherwise, which attend the exercise of jurisdiction or govern the determination to be made, the judgment or order may be set aside and avoided by proceedings by way of error, certiorari or appeal. But, if there be want of jurisdiction, then the matter is coram non judice. It is as if there were no judge and the proceedings are as nothing. They are void, not voidable: compare Case of the Marshalsea (1612) 10 Co Rep 68b at 76a, 76b; 77 ER 1027.27

The rationale for the distinction between want or lack of jurisdiction and the manner of its exercise is that if the distinction were not made judicial review for excess of jurisdiction would be tantamount to administrative review on the merits.28 Thus, in R v Bolton29 Lord Denman stated:

The inquiry before us must be limited to this, whether the magistrates had jurisdiction to inquire and determine, supposing the facts alleged in the information to be true ... we must not constitute ourselves into a Court of Appeal where the statute does not make us such.30

Similarly, in R v Wakefield31 Lord Mansfield spoke in terms of a lack of jurisdiction arising out of a consideration of certain disputed facts:

This part of the case depends on the facts, for if the title actually came in question ... then the justices had no jurisdiction. It appears on the affidavits that the title was not in question.32

In R v Blakeley; Ex parte Association of Architects, Engineers, Surveyors and Draughtsmen of Australia33 Fullagar J pointed out that:

... the important point is that the decision or finding with regard to the existence of jurisdiction, whether it be affirmative or negative, stands in a radically different position from a decision or finding given or made within jurisdiction on the merits of the case. The latter is conclusive and binding subject only to any appeal that may be given if no appeal is given, it is absolutely conclusive and binding. The former is not conclusive or binding at all. It is open, if it be affirmative and wrong, to prohibition. It

26 (1938) 59 CLR 369. 27 (1938) 59 CLR 369 at 389. 28 Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 at 389 per Dixon J. 29 (1841) 1 QB 66; 113 ER 1054. 30 113 ER 1054 at 1058. 31 (1758) 2 Kenny 164; 96 ER 1143. 32 96 ER 1143 at 1144. 33 (1950) 82 CLR 54.

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is open, if it be negative and wrong, to mandamus.34 JUDICIAL REVIEW OF JURISDICTIONAL FACTS Errors made with respect to jurisdictional matters have always been reviewable for “jurisdictional error”. This includes errors made with respect to so-called “jurisdictional facts”.35 A jurisdictional fact is some fact which has to exist as a condition precedent, or essential prerequisite, for the decision maker to exercise its jurisdiction.36 The position was very clearly put by Coleridge J in Bunbury v Fuller:37

Suppose a judge with jurisdiction limited to a particular hundred, and a matter is brought before him as having arisen within it, but the party charged contends that it arose in another hundred, this is clearly a collateral matter independent of the merits; and on its being presented, the judge must not immediately forbear to proceed, but must inquire into its truth or falsehood, and for the time decide it, and either proceed or not proceed with the principal subject matter according as he finds on that point; but this decision must be open to question, and if he has improperly either foreborne or proceeded on the main matter in consequence of an error, on this the Court of Queen’s Bench will issue its mandamus or prohibition to correct his mistake.38

Thus, in Weaver v Price39 the question whether certain land was within a particular parish was held to be a jurisdictional fact. A wrong decision on that matter would result in the invalidity of the rate levy. Similarly, the question of whether or not a person was an occupier of land was also held to be a jurisdictional fact in Bristol v Waite.40 In White and Collins v Minister of Health41 a local authority was empowered by statute to compulsorily acquire land provided it did not form part of any “park, garden or pleasure ground”. A purported exercise of the power was struck down as having been made without jurisdiction on the basis that the subject land did form part of a park.42 34 (1950) 82 CLR 54 at 91. In this case it was suggested (at 92) that more weight ought to be accorded to a decision of a tribunal where the collateral issue determinative of jurisdiction depends for its answer upon a finding of fact (as opposed to some conclusion of law). 35 See, generally, L Pearson, “Jurisdictional Fact: A Dilemma for the Courts” (2000) 17 EPLJ 453; M Aronson, “The Resurgence of Jurisdictional Facts” (2001) 12 PLR 17. 36 Professor Wade asserts that the distinction between jurisdictional facts and facts going to the merits is necessary because a tribunal has the power to decide facts correctly or incorrectly within the jurisdiction entrusted to it: see H W R Wade, Administrative Law (4th ed, 1977), 237-8. 37 (1853) 9 Ex 111; 156 ER 47. 38 (1853) 9 Ex 111 at 140-1. 39 (1832) 3 B & Ad 409; 110 ER 147. 40 (1834) 1 Ad & El 264; 110 ER 207. 41 [1939] 2 KB 838. 42 See also Hall v Manchester Corporation (1915) 84 L J Ch 732; Permanent Trustee Co of NSW Ltd v Campbelltown Municipal Council (1960) 105 CLR 401.

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In Parisienne Basket Shoes Pty Ltd v Whyte43 Dixon J (as he then was) pointed out that any matter can be made one of “jurisdictional fact” if that be the intention of the legislature:

It cannot be denied that, if the legislature see fit to do it, any event or fact or circumstance whatever may be made a condition upon the occurrence or existence of which the jurisdiction of a court shall depend. But, if the legislature does make the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the court’s opinion or determination that the facts do exist, then the validity of the proceedings and orders must always remain an outstanding question until some other court or tribunal, possessing power to determine that question, decides that the requisite state of facts in truth existed and the proceedings of the court were valid. Conceding the abstract possibility of the legislature adopting such a course, nevertheless it produces so inconvenient a result that no enactment dealing with proceedings in any of the ordinary courts of justice should receive such an interpretation unless the intention is clearly expressed.44

Where the tribunal of fact is vested with a jurisdiction which includes a jurisdiction to determine whether, in effect, there is jurisdiction (in the sense of authority to act) in a particular case, that is, a power to decide not only matters going to the merits but also jurisdictional matters, the position can be more complex. In R v Commissioners for Special Purposes of the Income Tax45 Lord Esher said:

Where an inferior court or tribunal or body which has to exercise the power of deciding facts is first established by Act of Parliament the legislature has to consider what powers it will give that tribunal or body. It may in effect say that if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things but not otherwise. There it is not for them conclusively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The legislature may entrust the tribunal or body with a jurisdiction which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist to proceed further or do something more. In the second of the two cases I have mentioned it is an erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the legislature gave them jurisdiction to determine all the facts including the existence of the preliminary facts on which the further exercise of their jurisdiction depends.46

43 (1938) 59 CLR 369. 44 (1938) 59 CLR 369 at 391. The approach of Dixon J (in which his Honour appeared to allude to the existence of a possible presumption against a factual reference being a jurisdictional fact where inconvenience would consequentially ensue) has been doubted by Handley JA in the NSW Court of Appeal decision in The Warehouse Group (Australia) Pty Ltd v Woolworths Ltd (2005) 141 LGERA 376: see [14] per Handley JA, cf [134] per Basten JA. 45 (1888) 21 QBD 313 at 319. 46 (1888) 21 QBD 313 at 319. See also Ex parte Silk; Re Chapman Engine Distributors Pty Ltd (1939) 39 SR (NSW) 42 at 66; 56 WN 13 at 14 per Jordan CJ; Ex parte Redgrave; Re Bennett (1945) 46 SR (NSW) 122 at 125 per Jordan CJ; R v Ludlow; Ex parte Barnsley Corporation [1947] 1 KB 634; Ex

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A common way of conferring upon an inferior tribunal jurisdiction to, in effect, determine its own jurisdiction (at least with respect to preliminary matters) is to provide, in the empowering legislation, that the exercise of jurisdiction is conditional upon the tribunal being of a certain mental state (that is, being “of the opinion” or “satisfied” that a certain state of affairs exists). In a sense, the mental state is a particular kind of jurisdictional fact,47 and, despite what Lord Esher said about it being erroneous to say that a tribunal cannot give itself jurisdiction (even wrongly) in such circumstances, the courts have displayed a preparedness to intervene in appropriate cases. For example, in Ex parte Wurth; Re Tully 48 Street CJ said:

It would be an extraordinary interpretation to put upon the section that the Board was to have unfettered and unchallenged power to define the extent of its own jurisdiction, and to give any decision or embark upon any proceeding without any liability to correction. It is unlikely that the legislature would have conferred upon this tribunal, two of whose members might have no knowledge of law whatever, the right to determine questions of law and by such determination to extend indefinitely the limits of the Board’s jurisdiction.49

In R v Shoreditch Assessment Committee50 Farwell LJ had this to say about the matter:

Subjection in this respect to the ... [c]ourt is a necessary and inseparable incident to all tribunals of limited jurisdiction; for it is a contradiction in terms to create a tribunal with limited jurisdiction and unlimited power to determine such limit at its own will and pleasure - such a tribunal would be autocratic, not limited - and it is immaterial whether the decision of the inferior tribunal on the question of the existence or non-existence of its own jurisdiction is founded on law or fact.51

Accordingly, if, for example, the existence of jurisdiction or the exercise of jurisdiction (or both) is conditional upon the existence of the formation of a subjective opinion, if the opinion actually formed is incorrectly based in law, then the necessary opinion does not exist.52 In the landmark and oft-cited case of R v Connell; Ex parte

parte Moss; Re Board of Fire Commissioners of New South Wales (1961) 61 SR (NSW) 597 per Kinsella J; cf Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 at 391-2. 47 See Craig, Administrative Law, 3rd ed (1994) at 368-370. See also Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194, 198; Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297; and Vanmeld Pty Limited v Fairfield City Council (1999) 46 NSWLR 78 at [42] per Spigelman CJ. 48 (1954) 55 SR (NSW) 47. 49 (1954) 55 SR (NSW) 47 at 53. 50 [1910] 2 KB 859. 51 [1910] 2 KB 859 at 880. 52 A reference to subjective criteria (“opinion”, “satisfied”, etc) is usually one directed to the ultimate question to be decided rather than to collateral or threshold issues: see, for example, R v Connell; Ex

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Hetton Bellbird Collieries Ltd53 Latham CJ, with whom the other members of the High Court agreed, said:

Where the existence of a particular opinion is made a condition of the exercise of power, legislation conferring the power is treated as referring to an opinion which is such that it can be formed by a reasonable man who correctly understands the meaning of the law under which he acts.54

Further:

If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide.55

In other words, a superior court, in judicial review proceedings, will enquire into the reasonableness of the tribunal’s opinion (in the Wednesbury sense).56 In addition, a tribunal’s decision on such a matter can still be reviewed for jurisdictional error where the tribunal either rejects evidence, or makes a decision unsupported by the evidence, in such a way as to indicate that the tribunal misunderstood the test it had to apply in determining matters going to jurisdiction.57 For example, in R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd 58 the board was empowered to cancel or suspend the registration of an employer if after an inquiry it was satisfied that the employer was “unfit to continue to be registered as an employer” or had “acted in a manner whereby the proper performance of stevedoring operations ha[d] been interfered with”. The High Court (per Dixon CJ, Williams, Webb and Fullagar JJ, Taylor J delivering a concurring judgment) found

parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407. 53 (1944) 69 CLR 407. 54 (1944) 69 CLR 407 at 430. 55 (1944) 69 CLR 407 at 432 per Latham CJ. The grounds on which such judicial review may be based are as set out in the grounds on which such review must be based are as set out by Gibbs J in Buck v Bavone (1976) 135 CLR 110, 118-119 and subsequent authorities. (See Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 257-277; Australian Heritage Commission Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 at 301, 303; Bruce v Cole (1998) 45 NSWLR, 184-187. See also Parramatta City Council v Pestell (1972) at 323.) 128 CLR 30556 See Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. See also Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 at 64 per Spigelman CJ. 57 The rejection of evidence, or the reaching of a conclusion unsupported by the evidence, is not per se an error of law: see Azzopardi v Tasman UEB Industries Ltd [1985] 4 NSWLR 139. Nevertheless, inadequacy of material to support the formation of some necessary “opinion” may support an inference that the tribunal is applying the wrong test or is not in reality “satisfied” of the requisite matters R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Ltd (1953) 88 CLR 100 at 120. 58 (1953) 88 CLR 100.

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that there were no grounds for saying that the company was unfit or that it had acted in a manner whereby the proper performance of stevedoring operations had been interfered with.59 In short, the power to cancel or suspend had not arisen “because the conditions for its exercise [did] not exist in law and in fact”.60 Until fairly recent years, the concepts and language of jurisdictional error and, mores

specifically, jurisdictional fact were infrequently invoked in a local government

context. There, were, of course, some exceptions.61 However, over the past 15

years the NSW Land and Environment Court and the NSW Court of Appeal have

increasingly applied the doctrine of jurisdictional error and the jurisdictional fact

concept in the contexts of local government and environmental planning law,

particularly where one or more of the following factors (which are not intended to be

exhaustive) are involved:

• where the administrative decision making process involves a number of

different steps or stages before the final decision is made;

• where the decision maker must decide, as a preliminary or threshold

question, whether there is an application that is capable of lawful

determination;

• where the decision maker must decide whether primary facts, fully found,

come within the ambit of a statutory description (particularly where facts

are involved that are an essential preliminary to the decision making

process and not otherwise the facts to be adjudicated in terms of the

ultimate decision or the “merit” issues to be weighed in the balance in

considering the matter and making the ultimate decision on the “merits”);

• where the characterization or categorization of a particular development in

concerned, and whether the exercise of characterisation or categorisation

requires consideration of matters relevant to the exercise of the decision

59 (1953) 88 CLR 100 at 120. 60 (1953) 88 CLR 100 at 120. Similarly, in Byron Shire Businesses for the Future Inc v Byron Council & Anor (1994) 84 LGERA 434 it was held that where there is only one conclusion reasonably open to the tribunal on the facts and a contrary opinion has been reached as to some matter in the nature of a precondition for the exercise of a power, the exercise of the power is null and void. (See also Hope v Bathurst City Council (1980) 144 CLR 1.) 61 See, for example, Permanent Trustee Co of NSW Ltd v Campbelltown Municipal Council (1960) 105 CLR 401).

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maker’s power once properly engaged;

• where the legislation evinces a legislative intention that the absence or

presence of some fact or fact situation will invalidate action under the

statute.

THE CORRECT APPROACH

The definitively authoritative statement of what is meant by the expression

“jurisdictional fact” is contained in the joint judgment of the High Court in Corporation

of the City of Enfield v Development Assessment Commission:62

The term “jurisdictional fact” (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision maker to exercise a discretion. Used here, it identifies a criterion, satisfaction of which mandates a particular outcome.63

In that case, the company Collex Waste Management Services Pty Ltd had applied

to the South Australian Development Assessment Commission for consent to make

certain alterations and additions to an existing liquid waste treatment plant within the

Enfield local government area. The Commission, being the relevant consent

authority, was duty bound to consider the development application against the terms

of the relevantly applicable development plan. Under that plan the proposed

development was for the purpose of “special industry”, and such development was

prohibited by the plan. The proposed development would also constitute a “non-

complying development”. This meant that no consent could issue unless certain

concurrences were also given, including one from the local council, Enfield

Corporation.64 In addition, pubic notice was also required. However, the Commission

treated the development as “general industry”, which required neither public notice

nor the concurrence of the local council.

In a joint judgment of Gleeson CJ, Gummow, Kirby and Hayne JJ, the High Court

stated:

62 (2000) 199 CLR 135. 63 (2000) 199 CLR 135 at 148 [28] 64 The relevant statutory provision was in s 35(3) of the Development Act 1993 (SA) which stated that a development that was of the kind described as non-complying “must not be granted a consent unless … .”

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Section 35(3) [of the Development Act 1993 (SA)] forbids the relevant authority granting a provisional development plan consent to a "non-complying" development unless, in a case such as the present, the Minister and the Council concur in the granting of the consent. The determination of the question whether Collex proposed a "non-complying" development, which turned upon the application of the criterion of "special industry", was a condition upon the existence of which there operated the obligation that the Commission not grant consent.65

In other words, the question whether or not the proposed development was “non-

complying development” was a question of jurisdictional fact, the relevant indicators

being, firstly, the prohibition itself of the development, and secondly, the express

statutory provision stating that the consent authority “must not grant” consent except

where otherwise allowed by the legislation.66 The answer to the jurisdictional fact

question did not depend upon the opinion of the consent authority or any other

person or body involved in the decision making process. It was not a question of

opinion at all. Indeed, the reviewing court, exercising its inherent supervisory

jurisdiction in judicial review proceedings,67 was duty bound to decide the matter for

itself. In the opinion of the court:

The result is that the Full Court [of the Supreme Court of South Australia] erred in holding that Debelle J [the primary judge] was obliged to determine the action before him, not by application of the law to the evidence, but from a standpoint that, whilst the Supreme Court should "reserve the right to itself to inquire into the relevant facts and to decide the jurisdictional facts", it would defer "in grey areas of uncertainty to the practical judgment of the planning authority" and that what had to be shown was "a serious departure (in planning terms) from the requirements of the [Development] Act and Regulations". It should be added that, contrary to the approach taken by the Full Court, in whatever form the proceeding in the Supreme Court had been cast, it would have been necessary for Debelle J to determine the "jurisdictional fact" issue upon the evidence before the Supreme Court. Accordingly, the matter will have to be returned to the Full Court for determination of the outstanding issues on the appeal from Debelle J to that Court.68

Their Honours discussed the United States concept of judicial deference to

65 (2000) 199 CLR 135 at 148 [28], original emphasis. 66 See Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707 at 717 per Spigelman CJ. 67 See Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40-1 where Mason J (as he then was) pointed out: “The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of the discretion, and a decision made within those boundaries cannot be impugned … .” 68 (2000) 199 CLR 135 at 151 [38], fns omitted.

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administrative jurisdictional fact finding,69 before stating that there was no place for

any such deference here with respect to the determination of jurisdictional facts by a

superior court (in this case, the Supreme Court of South Australia):

The weight to be given to the opinion of the tribunal in a particular case will depend upon the circumstances. These will include such matters as the field in which the tribunal operates, the criteria for appointment of its members, the materials upon which it acts in exercising its functions and the extent to which its decisions are supported by disclosed processes of reasoning. …

Where the question is whether the tribunal acted within jurisdiction, it must be for the court to determine independently for itself whether that is the case.70

Gaudron J agreed with the majority, making it clear that the matter was ultimately

one of “accountability”:

The other factor that informs comprehensive statutory schemes for the review of executive and administrative decisions is what is sometimes referred to as "accountability". In this context, "accountability" can be taken to refer to the need for the executive government and administrative bodies to comply with the law and, in particular, to observe relevant limitations on the exercise of their powers.

Those exercising executive and administrative powers are as much subject to the law as those who are or may be affected by the exercise of those powers. It follows that, within the limits of their jurisdiction and consistent with their obligation to act judicially, the courts should provide whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the laws which govern their exercise. The rule of law requires no less.71

In a previous NSW Court of Appeal decision, Timbarra Protection Coalition v Ross

Mining NL,72 the court, in judicial review proceedings, was called upon to scrutinize

the lawfulness of a decision made by a local council to grant development consent

pursuant to the Environmental Planning and Assessment Act 1979 (NSW) (the “EPA

Act”) in circumstances where it was alleged that a species impact statement -

required as a matter of law where, relevantly, the development was “likely to

significantly affect threatened species” - ought to have been so submitted but had

not. The court held that the issue of whether the proposed development was “likely

69 The US approach is known as the Chevron doctrine, after Chevron USA Inc v Natural Resources Defense Council, Inc 467 US 837 (1984). 70 (2000) 199 CLR 135 at 154-5 [47-8], fns omitted. 71 (2000) 199 CLR 135 at 157 [55-6], fns omitted. 72 (1999) 46 NSWLR 55; 102 LGERA 52.

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to significantly affect threatened species” involved a question of jurisdictional fact.

Spigelman CJ (Mason P and Meagher JA concurring) stated:

The issue of jurisdictional fact turns, and turns only, on the proper construction of the Statute. (See eg Ex parte Redgrave; Re Bennett (1946) 46 SR (NSW) 122, 125). The Parliament can make any fact a jurisdictional fact, in the relevant sense: that it must exist in fact (“objectivity”) and that the legislature intends that the absence or presence of the fact will invalidate action under the statute (“essentiality”). …

“Objectivity” and “essentiality” are two interrelated elements in the determination of whether a factual reference in a statutory formulation is a jurisdictional fact in the relevant sense. They are interrelated because indicators of “essentiality” will often suggest “objectivity”.

Any statutory formulation which contains a factual reference must be construed so as to determine the meaning of the words chosen by Parliament, having regard to the context of that statutory formulation and the purpose or object underlying the legislation. There is nothing special about the task of statutory construction with regard to the determination of the issue whether the factual reference is a jurisdictional fact. All the normal rules of statutory construction apply. The academic literature which describes "jurisdictional fact" as some kind of "doctrine" is, in my opinion, misconceived. The appellation "jurisdictional fact" is a convenient way of expressing a conclusion - the result of a process of statutory construction.

Where the process of construction leads to the conclusion that Parliament intended that the factual reference can only be satisfied by the actual existence (or non-existence) of the fact or facts, then the rule of law requires a Court with a judicial review jurisdiction to give effect to that intention by inquiry into the existence of the fact or facts.

Where the process of construction leads to the conclusion that Parliament intended that the primary decision maker could authoritatively determine the existence or non-existence of the fact then, either as a rule of the law of statutory interpretation as to the intent of Parliament, or as the application of a rule of the common law to the exercise of a statutory power - it is not necessary to determine which, for present purposes - a Court with a judicial review jurisdiction will inquire into the reasonableness of the decision by the primary decision maker (in the Wednesbury sense), but not itself determine the actual existence or non-existence of the relevant facts.73

What about the position where, as discussed earlier, there is a subjective grant of

jurisdiction, that is, where the statute provides that the exercise of jurisdiction is dependent

upon the formation by the decision maker of a certain “opinion” or “belief” or the decision

maker being “satisfied” that a certain state of affairs exists? Spigelman CJ had this to say

about the matter:

Where a factual reference appears in a statutory formulation containing words involving the mental state of the primary decision maker - "opinion", "belief",

73 (1999) 46 NSWLR 55 at 63-4 [37-41].

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"satisfaction" - the construction is often, although not necessarily, against a conclusion of jurisdictional fact, other than in the sense that that mental state is a particular kind of jurisdictional fact. … Where such words do not appear, the construction is more difficult.74

The Chief Justice also gave some pointers as to how best to respond to what are

potentially jurisdictional fact situations but which otherwise have the character of

“matters for consideration” or matters to be taken into account in the considering and

deciding a particular matter:

The authorities suggest that an important, and usually determinative, indication of parliamentary intention, is whether the relevant factual reference occurs in the statutory formulation of a power to be exercised by the primary decision maker or, in some other way, necessarily arises in the course of the consideration by that decision maker of the exercise of such a power. Such a factual reference is unlikely to be a jurisdictional fact. The conclusion is likely to be different if the factual reference is preliminary or ancillary to the exercise of a statutory power. The present case is, so far as I have been able to discover, unique in that the one statutory regime contains the same factual reference in both kinds of provisions.75

However, each case turns on the wording of the particular statutory formulation.

Thus, in Franklins Limited v Penrith City Council76 the NSW Court of Appeal had to

consider cl 32(2) of Penrith Local Environmental Plan No 231 which permitted a

person, with the consent of the council, to carry out development for the purposes of

a wholesale and retail warehouse on land to which the clause applied “but only if”

the council was “satisfied” that not less than 60 percent of the goods sold from the

land would be resold by retail after being removed from the land. At [23] Stein JA

(Powell and Giles JJA agreeing) noted that the above mentioned provision had the

effect that the subject development was prohibited unless the Council formed the

opinion required by the subclause. At [28] his Honour stated:

74 (1999) 46 NSWLR 55 at 64 [42]. It was held in Minister for Immigration and Ethnic Affairs v Eshetu (1999) 162 ALR 577 that a jurisdictional fact could include an opinion or state of satisfaction. However, as Spigelman CJ pointed out in Timbarra [at 46 NSWLR 55 at 66 [55]], “every case turns on the particular statutory regime.” For example, in Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297, the High Court rejected a submission that the decision whether or not to enter a place on the Register of the National Estate under s 28 of the Australian Heritage Commission Act 1975 (Cth) involved a question of jurisdictional fact. In that case, the exercise of the statutory power was predicated upon whether the Commission "considered" that a place should be registered. That required the assessment of a wide range of matters of considerable complexity involving the formation of value judgments. As Spigelman CJ pointed out in Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707 at 719 [58], “[s]uch a decision-making process is unlikely to involve a jurisdictional fact”. 75 (1999) 46 NSWLR 55 at 65 [44], emphasis added. 76 [1999] NSWCA 134.

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… What is here involved is a question of power. If the pre-condition in cl 32(2) was not satisfied, then Council had no power to grant consent. The existence of the mental state of satisfaction is an “essential condition” or preliminary to the exercise of the power, Craig v South Australia (1995) 184 CLR 163 at 179 and Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8 per Spigelman CJ at paras 42 and 94. Accordingly, the Land and Environment Court and this court on appeal can review whether the Council held the requisite satisfaction. …

Nevertheless, the legal position can vary where there is available, either in the

enabling statute or in some other statute or statutory instrument, a statutory facility

that would operate to alleviate or obviate the need for strict compliance with what

might otherwise involve a jurisdictional fact situation. In the Franklins case the issue

before the reviewing court was simply whether the necessary statutory precondition

had been satisfied. However, in Wingecarribee Shire Council v Pancho Properties

Pty Ltd77 the NSW Court of Appeal was called upon to determine whether 2

provisions of Wingecarribee Local Environmental Plan 1989 (viz cl 13(3) and (4))

were “development standards” within the meaning of the EPA Act. (If they were

development standards, then the person seeking to carry out the development could

lodge with the consent authority a written objection under State Environmental

Planning Policy No 1 - Development Standards (“SEPP 1”) that compliance with

those development standards was unreasonable or unnecessary in the

circumstances of the case, specifying the grounds of that objection.)

The first provision permitted the erection, with consent, of a dwelling-house “but only

if” the land had an area of not less than 40 hectares. The second provision provided

that not more than 2 additional dwelling-houses could, with consent, be erected on

certain land having an area not less than 40 hectares if the council was “satisfied” as

to certain specified matters. Giles JA (Heydon JA and Young CJ in Eq agreeing)

concluded that the 2 provisions were development standards amenable to objection

under SEPP 1.78 In the view of the court, although the provisions were worded in

prohibitory terms they were regulatory of otherwise permitted development and did

77 (2001) 117 LGERA 104. 78 This had also been the view of the primary judge (Talbot J): see Pancho Properties Pty Ltd v Wingecarribee Shire Council (1999) 110 LGERA 352. The decision of Lloyd J in Dixon v Wingecarribee Shire Council (1999) 103 LGERA 103, in which his Honour held that the very same provision was not a development standard, must now be considered to be wrong.

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not amount to “absolute prohibitions”. The court applied Strathfield Municipal Council

v Poynting79 in which Giles JA (Heydon JA and Young JA in Eq agreeing) said:

If the provision does not prohibit the development in question under any circumstances, and the development is permissible in circumstances expressed in the provision (whether positively or negatively, see the forms of provision earlier stated), in most instances the provision will specify a requirement or fix a standard in respect of an aspect of the development. …80

In Gales Holdings Pty Ltd v Tweed Shire Council81 Lloyd J of the NSW Land and

Environment Court was called upon to determine whether the expression “activity” in

s 110 of the EPA Act involved a question of jurisdictional fact. (If an act, matter or

thing is an “activity”, then the provisions contained in Part 5, as opposed to Part 4, of

the Act apply or at least potentially apply.) Applying the principles enunciated by

Spigelman CJ in Timbarra,82 his Honour held that the question whether an act,

matter or thing was an “activity” was jurisdictional:

The determination of whether an act, matter or thing is an "activity" in turn determines which regulatory procedure applies. I accept this as being a threshold question, not expressed to be dependent upon an opinion but purely a question of objective fact and a preliminary to the exercise of the decision-making powers and duties rather than a question arising in the conduct of the decision-making process itself. The absurd consequences which would follow in the event of a contrary conclusion … confirm the view to which I have come.83

In coming to his conclusion Lloyd J had regard not only to such matters as

“objectivity” and “essentiality” (cf Timbarra) but also certain non-textual matters,

79 (2001) 116 LGERA 319. In Poynting the court determined that a provision in a planning scheme ordinance, which stated that a single dwelling as well as certain other specified forms of residential development “must not be erected” on certain land having an area of less than a certain specified amount or a width of less than a certain specified amount, was not a prohibition but a development standard amenable to objection under SEPP 1. 80 (2001) 116 LGERA 319 at [98]. See also Woollahra Municipal Council v Carr (1987) 62 LGRA 263, Kruf v Warringah Shire Council (LEC, Holland J, 15 December 1988, unreported), Quinn O’Hanlon Architects Pty Ltd v Leichhardt Municipal Council (1989) 68 LGRA 114, North Sydney Municipal Council v P D Mayoh Pty Ltd [No 2] (1990) 71 LGRA 222, Bell v Shellharbour Municipal Council (1993) 78 LGERA 429, Scott Revay & Unn v Warringah Council (1995) 88 LGERA 1, Dixon v Wingecarribee Shire Council (1999) 103 LGERA 103, Bowen v Willoughby City Council (2000) 108 LGERA 149, Fencott Drive Pty Ltd v Lake Macquarie City Council (2000) 110 LGERA 318, Tobin v Shoalhaven City Council (2001) 113 LGERA 350, Lowy v Land & Environment Court of NSW (2002) 123 LGERA 179, and Georgakis v North Sydney Council (2004) 140 LGERA 379. 81 (1999) 110 LGERA 235. 82 Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 at 64-66; 102 LGERA 52 at 61-63 per Spigelman CJ. 83 (1999) 110 LGERA 235 at 247.

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relevantly, the inconvenience that might arise from the matter being classified as

jurisdictional (which, according to his Honour, was not critical) as well as the purpose

of the definition in the overall legislative scheme (a matter of much more

importance).

In Donnelly v Delta Gold Pty Ltd84 Bignold J of the NSW Land and Environment

Court was called upon to determine whether the provisions of s 58(6) of the

Protection of the Environment Operations Act 1997 (NSW) involved a question of

jurisdictional fact. The provision stated that if the variation of a licence would have a

certain specified effect, and the proposed variation had not been the subject of

environmental assessment and public consultation under the EPA Act, then the

appropriate regulatory authority was to invite and consider public submissions before

it varied the licence under s 58(1) of the first mentioned Act. His Honour held:

Section 58(6) in its statutory context exerts an altogether separate function, namely that of imposing a duty, if certain facts exist (being the relevant factual references contained in pars (a) and (b)), upon the regulatory authority to invite and to consider public submissions "before it varies the licence". This duty so formulated is clearly a matter that is "preliminary or ancillary to" the exercise of the statutory power of variation that is conferred by s 58(1).

In my judgment, it is clear that the legislative intention is that where the factual reference is engaged in fact, the variation power is not to be exercised without the regulatory authority first inviting and then considering public submissions. This satisfies the "essentiality" element identified in Chief Justice's judgment in Timbarra.

It is but a short and obvious step in the reasoning process, to also infer that the legislative intention is that the duty is enlivened where the requisite facts exist in fact, rather than where the regulatory authority is of the opinion, or believes, that they exist. (In this respect it is, of course, significant that the factual reference is not propounded by reference to the opinion held by the regulatory authority.) This satisfies the "objectivity" element identified in the Chief Justice's judgment in Timbarra.85

Accordingly, his Honour held that the question whether a licence variation would

have the specified effect was a question concerning a jurisdictional fact “which this

Court must determine for itself, on the basis of all the relevant evidence”.86

84 (2001) 113 LGERA 34. 85 (2001) 113 LGERA 34 at 50-1. 86 (2001) 113 LGERA 34 at 53.

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In Schroders Australia Property Management Ltd v Shoalhaven City Council,87

which was not a case on whether or not a particular provision was amenable to

objection under SEPP 1, the NSW Court of Appeal was called upon to consider the

construction of cl 9(3) of Shoalhaven Local Environment Plan 1985 which provided

that the council shall not grant consent to the carrying out of development on or of

land to which this plan applied unless the Council was of the opinion that the

carrying out of the development was consistent with the objectives of the zone within

which the development is proposed to be carried out. Ipp AJA (Spigelman CJ and

Sheller JA agreeing) stated:

Part of the site of the development was zoned 3(g) under the LEP. Hence, it was a condition precedent to a valid grant of consent that the Council form an opinion that the development was consistent with the objectives of the 3(g) zone. A failure to form such an opinion would result in the grant being invalid: Franklins Limited v Penrith City Council [1999] NSWCA 134.88

In Centro Properties Limited v Warringah Council,89 a decision of Pain J of the NSW

Land and Environment Court, the court, in judicial review proceedings, was called

upon to determine whether a development consent that had been granted by the

local council for construction of a bulky goods outlet, shops, restaurants,

conservation of bushland and associated parking was valid. Under the relevantly

applicable environmental planning instrument, Warringah Local Environmental Plan

2000, which embodied a system of planning known as “locality based planning”, land

the subject of the instrument was divided into certain “localities” (as opposed to

zones), each with its own detailed “locality statement”. Basically, all development,

other than “exempt development” and “prohibited development”, was permissible

with consent provided, before granting consent, the consent authority was “satisfied”

that the development was “consistent” with various specified matters including the

content of a section of the locality statement for the particular locality entitled

“Desired Future Character” (DFC). The applicant in the proceedings before the

court alleged that the council had, among other things, wrongly assumed to itself

jurisdiction to grant consent to the development application in circumstances where

the condition precedents to the existence of that jurisdiction (viz the reaching of the

87 [2001] NSWCA 74. 88 [2001] NSWCA 74 at [7]. 89 (2003) 128 LGERA 17.

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relevant state of satisfaction of consistency with the DFC of the particular locality as

specified in the locality statement for that locality, as well as the fact of consistency

with that DFC) had not been fulfilled.90

Her Honour proceeded to hold that the reaching of the relevant state of satisfaction

of consistency with the DFC of the particular locality as specified in the locality

statement for that locality did involve a question of jurisdictional fact:

The requirement under cl 12(3)(b) is that, for Category Two development, the Council must be satisfied that the development is consistent with the DFC before granting development consent. On the basis of [Franklins Limited v Penrith City Council [1999] NSWCA 134 and Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74], both of which also consider wording based on the need to be satisfied with a certain matter before a council can grant development consent, this provision clearly contains a condition precedent to the exercise of the Council's power to grant development consent which must be satisfied by the Council before consent can be granted.91

Her Honour also held that the fact of consistency with the DFC also involved a

question of jurisdictional fact:

While the wording of cl 20(1) does not include the words "the consent authority must be satisfied" as in cl 12(3)(b), in the scheme of this LEP I consider cl 20(1) is also a condition precedent which must be satisfied by the Council before development consent can be granted.92

In Gorczynski v Perera,93 a decision of the NSW Court of Appeal, the court had

before it an appeal in which the primary judge (Cowdroy J, of the NSW Land and

Environment Court) had to consider cl 23(6) of the Leichhardt Local Environmental

Plan 2000 which, relevantly, was follows:

90 See cll 12(3)(a) and (b) and 20(1) of Warringah Local Environmental Plan 2000. Clause 12(3)(a) required the consent authority to “consider” the DFC described in the relevant locality statement. Clause 12(3)(b) provided that the consent ”must be satisfied” that the development was “consistent” with the DFC of the locality. Clause 20(1) provided that consent may be granted to development despite non-compliance with one or more otherwise relevantly applicable development standards “provided the resulting development [was] consistent” with the certain specified matters including the DFC locality. 91 (2003) 128 LGERA 17 at 36 [74]. 92 (2003) 128 LGERA 17 at 37 [81], original emphasis. 93 (2004) 132 LGERA 341.

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Consent may be granted to the use of a building or part of a building situated within the Residential Zone for any use allowed only with development consent in the Business Zone, and the alteration of the building so that it can be so used, if:

(a) the whole or part of the building was constructed for a non-residential use, and

(b) the building is capable of being substantially retained, which means the building must be structurally capable of conversion while meeting building, health, amenity and other environmental planning requirements, without the need for the replacement of most of the structure, and

(c) the consent authority is satisfied that the amenity of the locality will not be adversely affected.

Essentially, the primary judge was satisfied that paragraphs (a) and (b) of cl 23(6) of

the LEP were not jurisdictional facts prerequisite to the grant of consent but “matters

for consideration” about which Council was merely required to be subjectively

satisfied (but, nevertheless, “reasonably” satisfied, as well, in the Wednesbury94

sense). The Court of Appeal (per Santow JA, Meagher and Ipp JJA agreeing) did

not find it necessary to determine whether paragraphs (b) and (c) of cl 23(6) involved

questions of jurisdictional fact as there was no live issue in relation to those matters,

but was otherwise satisfied that the matter the subject of paragraph (a) did involve a

question of jurisdictional fact. (Based on the preponderance of judicial authority

discussed in this article the “better” view would appear to be that paragraph (b) also

involves a question of jurisdictional fact. As for paragraph (c), the matter the subject

of that paragraph arguably does not involve a question of jurisdictional fact, but if it

does, the required mental state of “satisfaction” is a particular kind of jurisdictional

about which the consent authority is merely required to be subjectively satisfied

according to the Wednesbury unreasonableness standard.)

One interesting matter that comes out of Gorczynski relates to the burden of proof in

relation to the matter of the proof of jurisdictional facts. Santow JA had this to say

about the matter:

… I agree that the burden of proof falls upon the respondent to demonstrate satisfaction. The very nature of a jurisdictional fact is that if the pre-condition be not satisfied, then the jurisdiction of council to grant the development consent would be absent. Moreover, I consider that the pre-condition here in question is an objective

94 See Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.

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one, requiring demonstration by the appellant of whether construction for a non-residential use has taken place. That entails also determining when that must have taken place in order to satisfy s 23(6)(a).95

In Woolworths Ltd v Pallas Newco Pty Ltd,96 another decision of the NSW Court of

Appeal, the court was called upon to hear an appeal where the legal issue was

whether the particular use proposed by the appellant was a "drive-in take-away

establishment", in which case it was permissible with consent, otherwise the use

was prohibited (as it had not been suggested that the proposed development could

fall within any other classification of permissible use). The court (per Spigelman CJ,

Mason P, Handley and Sheller JJA and Cripps AJA agreeing) held that, taking into

account the legislative purpose and statutory context of Parts 3 and 4 of the EPA

Act, the characterisation of the use nominated in a development application as

permissible with consent under the terms of the applicable environmental planning

instrument involved a question of jurisdictional fact which the court, in judicial review

proceedings, must determine for itself. The court’s previous decision in Londish was

not followed.97

In Issa v Burwood Council,98 another decision of the NSW Court of Appeal, the court

was called upon to hear an appeal where the legal issue was whether or not a

proposed subdivision was permissible or prohibited under the relevant

environmental planning instrument. In particular, the issue on appeal depended

upon the proper meaning of the word “allotment” where it appeared in the definition

of “dual occupancy development” in cll 4 and 78Q of the Burwood Planning Scheme

Ordinance. The expression “dual occupancy development” was defined in cl 4(1) of 95 (2004) 132 LGERA 341 at [56]. 96 (2004) 61 NSWLR 707; 136 LGERA 288. 97 See also The Warehouse Group (Australia) Pty Ltd v Woolworths Ltd (2005) 141 LGERA 376, another decision of the NSW Court of Appeal that also involved issues of characterization or categorization and the question whether those issues involved jurisdictional facts. Handley JA (at [14]) stated that the analysis of Dixon J in Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 at 391 (in which his Honour alluded to the existence of a presumption against a factual reference in a statutory formulation being construed as a jurisdictional fact where inconvenience would arise from it being so classified), which was cited with approval (at [134]; see also [128]) by Basten JA (at least as regards statutory decision-making by inferior courts, as opposed to administrative tribunals), was confined to judicial decisions and was not reflected in more recent landmark cases such as Enfield City and Pallas Newco. His Honour (at [14]) also disagreed with Basten JA who opined (at [134]) that there was also no scope for a weaker presumption to the same effect on the basis that the local council was a representative body (cf M Aronson, “The Resurgence of Jurisdictional Facts” (2001) 12 PLR 17; Aronson, Dyer and Groves, Judicial Review of Administrative Action (3rd ed, 2004) at 231-2). 98 (2005) 137 LGERA 221.

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the Ordinance to mean “development that results in 2 dwellings (whether attached or

detached) on a single allotment of land”. By virtue of cl 78Q of the Ordinance

consent could not be granted for a subdivision (including a strata subdivision) of an

allotment within the subject zone that created separate allotments for each of the

two dwellings resulting from a dual occupancy development. In the case before the

court, the subject land comprised 2 Torrens title lots and it was proposed that the

proposed dual occupancy development straddle the internal boundary between the 2

lots. The appellant thus contended, first, that cl 78Q had no application in this case,

arguing that the 2 dwellings did not result from a “dual occupancy development” as

defined in cl 4(1), because they did not result in 2 dwellings on a “single allotment of

land” and, secondly, that cl 78Q did not operate to prevent subdivision as the

subdivision proposed did not involve the subdivision of a single allotment of land but

only the re-subdivision of 2 existing allotments. However, the council submitted that

the word “allotment” where used in the statutory provisions did not have the same

meaning as “lot” but bore its ordinary, non-technical meaning in the sense of being a

distinct or identifiable area of land. The primary judge (Pain J, of the NSW Land and

Environment Court) agreed with the council’s submission, the result being that the

proposed subdivision was held to be prohibited.

The court (per Pearlman AJA, Mason P and Tobias JA agreeing) first noted that the

question whether an expression (in this case, the word “allotment”) is used in any

sense other than that which it has in ordinary speech is a question of law,99 before

going on to note that in Woolworths Ltd v Pallas Newco Pty Ltd the court had held

that classification of a development as permissible with consent or prohibited

involved the determination of a jurisdictional fact. Accordingly, the court had the

jurisdiction to judicially review the decision of the primary judge. Ultimately, the

court, after considering a line of authority in the Land and Environment Court on the

meaning of the word “allotment”,100 agreed with the view of the primary judge on the

meaning of the word “allotment” (viz that it was not synonymous with the word “lot”)

99 See Collector of Customs v Agfa-Gevaert Ltd [1996] 186 CLR 389 at 397. See also NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509. 100 The cases cited by the court were Personal Design Projects Pty Ltd v Hornsby Shire Council [1991] NSWLEC 34, S & I Investments Pty Ltd v Pittwater Municipal Council [1993] NSWLEC 166 and Demihale Pty Ltd v Ku-ring-gai Municipal Council (2002) 123 LGERA 94; cf Ku-ring-gai Municipal Council v Kuttner (1980) 41 LGERA 1.

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and proceeded to dismiss the appeal on the basis that the proposed subdivision

application was prohibited development.

In Lesnewski v Mosman Municipal Council,101 another decision of the NSW Court of

Appeal, the appellant challenged the validity of a development consent granted by

the council for alterations and additions to an existing dwelling-house. The thrust of

the appellant's argument was that it had been the function of the court below,102 in

judicial review proceedings, to determine for itself whether the design and

construction of the building as depicted in the plans and specifications furnished to

the certifying authority for the purpose of the issue of a construction certificate were

“not inconsistent” with the development consent (that being a requirement of the

relevantly applicable legislation). In other words, it was asserted that lack of

inconsistency was a jurisdictional fact which was required to be determined

objectively before the Council (or its delegate) was empowered to issue a

construction certificate. The relevant provision was cl 145(1)(a) of the

Environmental Planning and Assessment Regulation 2000 (NSW) which provided

that a certifying authority must not issue a construction certificate for building work

unless it is “satisfied” of certain specified matters including, relevantly, that the

design and construction of the building (as depicted in the plans and specifications

furnished to the certifying authority for the purpose of the issue of a construction

certificate) are not inconsistent with the development consent.

Tobias JA (Hodgson and Ipp JJA agreeing) said:

Although in Woolworths [Ltd v Pallas Newco Pty Ltd] the Chief Justice observed (at [49]) that a

"... factual reference that is appropriately characterised as preliminary or ancillary to the decision-making process or which is, in some other manner, extrinsic to the facts and matters necessary to be considered in the exercise of the substantive decision-making process itself, is a reference of a character that the Parliament intended to exist objectively",

his Honour also recognised (at [56]) that where issues of fact and degree arise, it will often be the case that these are matters which a decision maker is intended by Parliament to determine and, accordingly, any error is an error within jurisdiction rather than error going to jurisdiction.

101 (2005) 138 LGERA 207. 102 The NSW Land and Environment Court.

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Further, at [58] the Chief Justice acknowledged that an environmental planning instrument may require the assessment of a wide range of matters of considerable complexity involving the formation of value judgments which were unlikely to involve a jurisdictional fact. At [60] his Honour exemplified the number of situations that involved matters of judgment which had been held to be jurisdictional. But none of them involved a requirement that the decision maker be "satisfied" as to the existence of certain facts or hold an "opinion" with respect to those facts. In my opinion, upon the basis of the Chief Justice's judgment in Woolworths, the only jurisdictional fact required to be objectively determined pursuant to [clause] 145(1)(a) [of the Environmental Planning and Assessment Regulation 2000 (NSW)] was that the certifying authority be "satisfied" of the relevant matters. Once that state of satisfaction is held to exist, that is the end of the inquiry subject only to judicial review on conventional administrative law grounds.

Accordingly, it is clear that whether or not the plans the subject of the construction certificate were in fact "not inconsistent" with the plans the subject of the consent was not a jurisdictional fact which [clause]145(1)(a) required the court to determine for itself. In my opinion the primary judge was correct to reject the appellant's argument to the contrary.103

In other words, the jurisdictional fact issue was, not whether or not the design and

construction of the building (as depicted in the plans and specifications furnished to

the certifying authority for the purpose of the issue of a construction certificate) were

in fact "not inconsistent" with the development consent, but whether the certifying

authority was "satisfied" of the relevant matters. Indeed, it would appear to follow

that only if the state of satisfaction, looked at objectively, was “manifestly

unreasonable” would there be grounds for setting aside the tribunal of fact’s

determination of that matter.

In Lane Cove Council v Minister for Urban Affairs and Planning104 the NSW Court of

Appeal did not find it necessary to actually determine whether certain statutory

provisions (one draft, the other gazetted) involved questions of jurisdictional fact.

The first provision stated that consent must not be granted for certain development

unless the consent authority was “satisfied” that the proposed development

demonstrated that adequate regard had been given to certain specified principles.

The second provision (the one actually gazetted) provided that, in determining a

development application for consent to carry out residential flat development, the

consent authority was to “take into consideration” certain specified matters. Santow

JA (Campbell J agreeing, McColl JA agreeing with the orders) said, “Whether either

103 (2005) 138 LGERA 207 at 226 [87-9]. 104 [2005] NSWCA 122.

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presage jurisdictional fact need not be decided.”105 However, it is clear from his

Honour’s judgment that he inclined strongly to the view that neither provision

involved a question of jurisdictional fact.106

THE WRONG APPROACH

In an earlier decision, being that of Pearlman J of the NSW Land and Environment Court in Byron Shire Businesses for the Future Inc v Byron Council & Anor (the Club Med case),107 a development consent granted by a local council was declared null and void because, at the time the council purported to grant consent, no fauna impact statement as required by the EPA Act had been lodged with the council. Interestingly, Pearlman J never determined that a fauna impact statement was required. What her Honour did determined was that there was insufficient probative material before the council as to the likely effect of the proposed development on the environment of 2 particular species of endangered fauna.108 In the opinion of her Honour, the council “started off with at least the possibility of significant effect” and was “then bound by the [Act] to determine whether or not that was so”.109 In respect of one species of endangered fauna, namely, the comb-crested jacana, “the only reasonable conclusion was that its environment was likely to be significantly affected”, and as to other species of endangered fauna the council “was required to make a determination one way or the other as to significant effect on environment”.110 The legal consequence of her Honour’s conclusion that the council’s decision on the fauna question was “not reasonably open” to it was the invalidation of “the very foundation of the development consent process”.111 A fauna impact statement was an essential prerequisite for the council to make a determination of the development application.112

Insofar as the above issue of law was concerned there would not appear to be

anything in her Honour’s judgment in the Club Med case that is inconsistent with the

105 [2005] NSWCA 122 at [44]. 106 [2005] NSWCA 122 at [44-55]. 107

(1994) 84 LGERA 434. 108 The development application before the council disclosed that approximately 33 species of endangered fauna were likely to be within or near the site of the proposed development. The 2 species in respect of which her Honour held that there was insufficient information before the consent authority were the wallum froglet and the comb-crested jacana. 109 (1994) 84 LGERA 434 at 446. 110 (1994) 84 LGERA 434 at 446. 111 (1994) 84 LGERA 434 at 447. See also Helman v Byron Shire Council & Anor (1995) 87 LGERA 349. 112 See also Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 at 209.

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views subsequently expressed by the NSW Court of Appeal in the Timbarra case.

However, the development consent was alleged to be invalid on other grounds as

well. One of those grounds was that the proposed development was, at least in part,

“designated development” within the meaning of the EPA Act on a number of

different bases. If that were the case, then the legislation required that an

environmental impact statement be submitted to the consent authority (the local

council). However, no such environmental impact statement had ever being

submitted to the council. Ultimately, her Honour concluded that it was “reasonably

open” for the council to have concluded that the proposed development was not

“designated development”.113 With respect, it is now clear, in light of cases such as

Timbarra and Enfield, that her Honour did not apply the correct approach. The

question whether or not the proposed development was “designated development”

within the meaning of the legislation involved a question of jurisdictional fact. The

court, in judicial review proceedings, was duty bound to determine the jurisdictional

fact or pre-condition anew. It is not a question of whether the decision made by the

tribunal of fact on the issue was one that was “reasonably open” to it.

In Londish v Knox Grammar School,114 the NSW Court of Appeal was called upon to

judicially review the lawfulness of a development consent granted by a local council

to the school for a change of use of certain premises to a “boys' school residential

area”. It seems that the consent was granted on the basis of existing use rights

provisions that allowed, with consent, a change from one non-conforming use to

another. The subject land was subsequently rezoned such that “educational

establishments” were permissible with consent, but not “boarding-houses” which

were prohibited. Later, a further consent was sought and obtained for additional

boarding accommodation and associated facilities.

The court (per Stein JA, Mason P and Meagher JA agreeing), in dismissing the

appeal, held that the primary judge (Talbot J in the NSW Land and Environment

Court) had not erred when he expressed the test for jurisdictional error as whether

the decision of the council was “reasonably open” to it (in characterising the use as

an educational establishment). Stein JA stated: 113 See (1994) 84 LGERA 434 at 450-5. 114 (1997) 97 LGERA 1.

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In the circumstances of this case, it is apparent that the evidence and material before the council may have reasonably admitted to more than one conclusion. The decision reached by council to categorise the development as an “educational establishment” and not a “boarding house” was one which was reasonably open to it to make and within its discretion. Accordingly, in my opinion the council's decision is not reviewable by the court.115

In so holding, his Honour relied upon a previous decision of his in Bentham v Kiama

Council116 which concerned whether a proposed development should be

characterised as an hotel (which was prohibited) or, as the council had found, a

conglomeration of a motel, tavern and conference centre (which was permissible

with consent). In Bentham his Honour (then Stein J) stated that “the fact that minds

might differ and conclude otherwise than did the Council is no reason to vitiate its

decision”:117

It was a decision which, in my opinion, was reasonably open to Council to make. It sought and acted on advice from the department. To put the question a different way, is the decision “looked at objectively,...so devoid of any plausible justification that no reasonable body of persons could have reached [it]”? (Lord Diplock in Bromley Borough v Greater London Council [1983] 1 AC 768, 821). I do not believe so.118

In other words, it was not for the reviewing court, in judicial review proceedings, to

determine whether or not, on whatever evidence might now be available, the subject

development ought to be categorised as an “educational establishment” or a

“boarding-house” (or for that matter some other characterisation). It was simply a

question of whether the determination by the tribunal fact in relation to that matter

was one that was “reasonably open” to it. Once again, it is now clear, in light of

cases such as Timbarra and Enfield that the court did not apply the correct

approach. It should have decided for itself, as a matter of jurisdictional fact, whether

the proposed development was “educational establishment” or “boarding-house” or

whatever.

In Transport Action Group Against Motorways Inc v Roads and Traffic Authority119

(1999) 104 LGERA 133, being a decision of the NSW Court of Appeal handed down

a few months after the court’s unanimous decision in Timbarra, there was an

115 (1997) 97 LGERA 1 at 8. 116 (1986) 59 LGRA 94. 117 (1986) 59 LGRA 94 at 98. 118 (1986) 59 LGRA 94 at 98. 119 (1999) 46 NSWLR 598; 104 LGERA 133.

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argument that a decision made by a determining authority pursuant to s 112(4)(b)(i)

of the EPA Act to "modify" a proposed activity involved:

a jurisdictional fact: cf Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55. The challenge provoked a contention by the respondents that the challenged decisions were valid because it was open to the RTA to conclude that the committed works were modifications within the ambit of s 112(4)(b)(i): cf Londish v Knox Grammar School (1997) 97 LGERA 1.120

The majority of the Court (Mason P and Sheller JA) did not find it necessary to

decide whether or not the above mentioned statutory provision involved a

jurisdictional fact121 but Sheller JA expressed the view,122 consistent with Londish,

that the task of deciding the various matters arising under s 112 of the EPA Act were

"entrusted to the determining authority" and that provided it acted “bona fide and

reasonably”, its decisions could not be challenged.123 Fitzgerald JA dissented. In his

view, the question was indeed one of jurisdictional fact. With respect, his view must

now be preferred, for as Bignold J pointed out in Donnelly v Delta Gold Pty Ltd:124

In particular, it is unlikely … that the decision in Londish can be taken to have survived the effect of the decision in Enfield. Curiously, Londish was not cited in the argument in Enfield.125

Now, if there remained any doubt as to what was the correct approach, it came to an

end with Chambers v Maclean Shire Council.126 In that case the NSW Court of

Appeal was called upon to judicially review the lawfulness of a development consent

granted by the council in respect of certain proposed development (viz the

establishment of a prawn and research station on certain land used as a farm). The

issue was whether the proposed development was prohibited such that the council

lacked jurisdiction to consent to it. The applicant to the proceedings alleged that the

development was not permissible because the proposed site did not meet the

minimum performance criterion for pond-based aquaculture that elevation be greater

120 (1999) 46 NSWLR 598 at 618; 104 LGERA 133 at 151 per Mason P. 121 See (1999) 46 NSWLR 618-9; 151 per Mason P and 647-8; 172 per Sheller JA. 122 At (1999) 46 NSWLR 648; 104 LGERA 172. 123 At (1999) 46 NSWLR 648; 104 LGERA 172. 124 (2001) 113 LGERA 34. 125 (2001) 113 LGERA 34 at 52.

126 (2003) 57 NSWLR 152; 126 LGERA 7.

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than 1 metre Australian Height Datum ("AHD") as prescribed by State Environmental

Planning Policy No 62 ("SEPP 62"). In order for the farm to meet the minimum

performance criteria, it had to be "within an area that is above 1 metre AHD and

below 10 metres AHD". The elevation of 40 per cent of the farm was lower than 1

metre AHD.

The primary judge (Sheahan J, in the NSW Land and Environment Court) construed

the word "area"127 to mean a "district" or "region", which could be categorised as

generally having elevations ranging between 1 and 10 metres. His Honour, relying

upon the reasoning of the NSW Court of Appeal decision in Londish v Knox

Grammar School,128 found that it was “reasonably open” to the council to have found

that the general area in which the farm was located had a prevailing elevation of

approximately 1 metre AHD or more. That meant that the proposed development

was permissible with consent and the Council was entitled to determine so. On

appeal to the Court of Appeal, it was held that the question of whether or not the

subject development was prohibited involved a question of jurisdictional fact. Ipp JA

(with whose reasons Sheller and Giles JJA generally agreed) said:

… The scheme of the Environmental Planning and Assessment Act relating to the three-fold classification of developments does not suggest that the determination whether an application for development is for a prohibited development (or one of the other two forms of development applications falling within Div 1 of Pt 4 of the Act) rests upon a council's own classification of the relevant circumstances. Rather, it indicates that it is not for a council itself to determine, as a matter of its opinion, whether it has power to grant consent to a development application or whether only the Minister has such power: cf Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135 at 149.

I would refer also to the statement of Spigelman CJ in Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 at 65 that "if the factual reference is preliminary or ancillary to the exercise of a statutory power", the conclusion is likely to be a jurisdictional fact. The relevant factual reference in this case is whether the minimum performance criteria are met. Whether those criteria are met determines the character of the proposed development, namely, whether it is prohibited or not. That in turn determines whether the Council has the power to consent thereto. Thus, the factual reference is preliminary to the exercise of statutory power by the Council.

Therefore, the reasoning in Londish does not apply: Timbarra Protection Coalition Inc v Ross Mining NL at 63. In my opinion, Sheahan J erred in applying the approach adopted therein. The question whether the minimum performance criteria were met

127 In cl 4 of Sch 1 to SEPP 62. 128 (1997) 97 LGERA 1.

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involves a jurisdictional fact and, according to the relevant legislation, must be answered objectively - not by reference to the subjective opinion of the Council.129

The previous decision of the court in Londish was for all intents and purposes

distinguished or otherwise confined to its own special facts and statutory

circumstances on the basis that Londish predated a number of significant

amendments to the EPA Act that came into effect on 1 July 1998. Prior to that date,

but not thereafter, the Minister had the power to “call up” and affirmatively determine

an application made to a consent authority, not being the Minister, for the carrying

out of what would otherwise be prohibited development.130 With respect, it would

appear that the court was simply trying to bring itself into line with the approach

taken by the High Court in Enfield City Corporation v Development Assessment

Commission.131

CONCLUSION

The doctrine of judicial review - indeed, the rule of law - requires that the question

whether a tribunal of fact has acted within jurisdiction be one for the reviewing court

to determine independently for itself. The task of determining whether or not a

particular factual reference (“fact situation”) in a statutory provision (“formulation”) is

or involves a question of jurisdictional fact which the reviewing court must determine

for itself on the basis of all the relevant evidence requires a careful, indeed

meticulous (that is, “proper”)132 examination of the statute as a whole, and not just

the formulation, applying ordinary principles of statutory construction, having regard

to the legislative intention. The latter is to be deduced not only from express words

but also from “implications found in inferences to be drawn from the language

[used]”.133

In order for there to be a question of jurisdictional fact - which is a conclusion

reached after the process of statutory construction - the following matters would

129 (2003) 57 NSWLR 152 at 160; 126 LGERA 7 at 16 [46-8].

130 (2003) 57 NSWLR 152 at 159-60; 126 LGERA 7 at 15-6 [43]. 131 (2000) 199 CLR 135. 132 Timbarra Protection Coalition v Ross Mining NL (1999) 46 NSWLR 55 at 60 per Spigelman CJ. 133 Ex parte Mullen; Re Hood (1935) 35 SR (NSW) 289 at 298 per Jordan CJ.

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ordinarily need to be satisfied or fulfilled, having regard to the context of the

formulation and the underlying object or purpose of the statute:

1. The legislative intention must be such that there must be “objective”

compliance with the fact situation. In other words, the fact (or fact situation)

must exist in fact to “enliven” the power or duty to act. This is known as the

element of “objectivity”.

2. The legislative intention must be such that the absence or presence of the

fact situation will invalidate action under the statute. In other words, where

the fact situation is “engaged”, the power or duty to act, or not act, in a

certain specified way is triggered affirmatively or negatively. This is known

as the element of “essentiality”.

Along with such matters as the non-textual indicator of the purpose of the

formulation in the overall legislative scheme (a matter of considerable importance)

and the inconvenience, if any, that may arise from the fact situation being held to be

jurisdictional (a matter of much less importance), indications of legislative intention

(expressed here as questions to be asked) include but are not necessarily limited to

the following:

• Does the fact situation occur or otherwise arise in the actual formulation of

the grant of substantive power to the tribunal of fact to make the ultimate

decision on the merits? If so, the fact situation is unlikely to be or involve

a question of jurisdictional fact.

• Does the fact situation occur or otherwise arise as a matter for

consideration or as a matter to be ultimately adjudicated upon by the

tribunal of fact in the decision making process? If so, the fact situation is

unlikely to be or involve a question of jurisdictional fact, particularly where

the ultimate decision involves the assessment of a wide range of matters

of considerable complexity involving the formation of value judgments in

respect of matters on which reasonable persons might reasonably arrive

at divergent conclusions.

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• Does the fact situation occur or otherwise arise in the context of a duty,

express or implied, that is preliminary or ancillary to the exercise of the

substantive power to make the ultimate decision on the merits? If so, the

fact situation is likely to be or involve a question of jurisdictional fact.

• Does the fact situation have to be established either as a condition

precedent for the decision maker to exercise its jurisdiction or otherwise

consist of matters that have to be satisfied in the course of exercising

jurisdiction? If so, fact situation will almost certainly involve a question of

jurisdictional fact.

• Does the fact situation occur or otherwise arise in a formulation requiring

the formation by the tribunal of fact of a specified mental state (eg

“opinion”, “satisfaction”). If so, the fact situation itself (as opposed to the

mental state) is unlikely to be or involve a question of jurisdictional fact.

Nevertheless, the reviewing court will ordinarily enquire as to the

“reasonableness” (in the Wednesbury sense) of the actual mental state of

the tribunal of fact.

Other matters to be considered include the following:

• Does the formulation, in its proper context, use the language or

terminology of prohibition? This is relevant, but not necessarily

determinative of the issue.

• Does the statute, or some other statute or statutory instrument, contain a

mechanism or facility that affords flexibility whether by means of

administrative alleviation or otherwise in the application of the provision?

(Thus, what might otherwise be seen to be prohibitory in nature may end

up having to be construed as only regulatory.)

Ultimately, it all seems to get down to statutory construction and legislative intention,

with the reviewing court having the final say … at least on those matters. One thing

is, however, clear: the distinction between facts themselves and facts as we know

them which lies at the heart of the so-called “jurisdictional fact doctrine” will always

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remain somewhat elusive. In the words of the Scottish-born Australian philosopher

John Anderson: We cannot, then, make any such distinction as between "things as we know them" and "things themselves". Unless the former are things themselves, we are not entitled to speak of things (and hence to speak) at all.134

134 J Anderson, “Empiricism”, in Studies in Empirical Philosophy (Sydney: Angus & Robertson, 1962), 13.