Appealing from decisions of the Magistrates’ Court, VCAT and the AAT: what is a question of law? Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 322 ALR 254

It is often taken for granted that if a litigant is dissatisfied with a decision at the end of a trial or hearing, the litigant has a right of appeal to correct errors in the decision. But a right of appeal only exists if a statute provides for one. It then needs to be ascertained what the content of that right is.

There are three main types of appeal:

  1. Hearing de novo

  2. Rehearing

  3. Appeal on a question of law

A hearing de novo is the broadest kind of appeal: it’s essentially a second bite at the cherry. You can run your whole case again, and you are not bound by the way it was run at first instance (although sometimes you may need leave to lead new evidence). The danger of that, of course, is that your opponent is not bound, either. This type of appeal is sometimes described as a “review” (eg in the context of administrative appeals or on appeal from a Registrar of the Federal Court to a Judge of the Federal Court), although the nomenclature used in the statute will not be determinative of the nature of the appeal rights.

A rehearing is the more traditional kind of appeal, and is typically the type of appeal from the Trial Division of the Supreme Court to the Court of Appeal and from the County Court to the Court of Appeal. The word “rehearing” is a little misleading, as it sounds like the best English translation of hearing de novo. (Sometimes the law just can’t shake the Latin.) What it really means, in a nutshell, is something like this: you are stuck with the evidence as it was at trial (except where there are exceptional circumstances, such as exculpatory evidence having been fraudulently concealed by the respondent) and you are generally stuck with the case that you ran at trial – which is why the state of your pleadings and particulars are important. You can, theoretically, challenge factual findings, but this is rather difficult: Fox v Percy (2003) 214 CLR 118. So, generally, your grounds of appeal are directed to identifying errors of law, but the distinction of fact and law is not overly important. As a respondent in an appeal in the nature of a rehearing, you have a little more scope than the appellant to put arguments to the appellate court that you didn’t put at first instance.

The third main kind of appeal is an appeal on a question of law. Whilst the distinction between fact and law is intuitively attractive, much ink has been spilt trying to define the boundaries. Inevitably, as the law is wont to do, the cases have revealed that the distinction is not at all a bright-line one, and there is such a creature as a question of mixed fact and law. Courts have often disagreed as to whether this hybrid creature gives rise to a competent appeal.

Then there was Haritos. The Full Court of the Federal Court of Australia was faced squarely with this conundrum and conflicting authority, so, in an unusual move, it heard the case with a bench of five judges (instead of the usual three).

In Haritos, the appellants were in a long-running battle with the Australian Taxation Office. They challenged various assessments in the Administrative Appeals Tribunal, and lost. Section 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) provides as follows:

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

Compare section 109(1) of the Magistrates’ Court Act 1989 (Vic):

A party to a civil proceeding in the Court may appeal to the Supreme Court, on a question of law, from a final order of the Court in that proceeding.

And section 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic):

A party to a proceeding may appeal on a question of law from an order of the Tribunal in the proceeding …

(It ought to be said here that “appeals” from administrative tribunals to courts are not “appeals” as usually understood. In the ordinary course of events, an appeal lies from a decision of a judicial officer following a trial in a court: ie from the original jurisdiction of a court to the appellate jurisdiction. Tribunals like the AAT and VCAT are creatures of the administrative arm of government; therefore, “appeals” from those bodies to their respective courts are the exercise of original judicial power: see Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (2001) 207 CLR 72, [15].)

Having lost in the AAT, the appellants in Haritos filed a notice of appeal in the Federal Court. At first instance, Pagone J held that the appeal was incompetent because the notice of appeal did not disclose any question of law.

Haritos stands for a number of useful points about appeal procedure. Of present interest is what was said about questions of mixed fact and law.

First, it was said ([110]-[162], especially [126] and [162]) that not all mixed questions will be beyond the scope of section 44 of the AAT Act.

Second, it was said ([163]-[202], especially [192]-[200]) that, in dealing with mixed questions, attention needs to be directed to what the error is, in substance, alleged to be: whether an error of fact or an error of law. The Court detailed the criticisms of the concept of questions of mixed fact and law and then considered the authorities dealing with such questions. The Court said ([192]) that it is more accurate to read section 44(1) as providing that “the right of appeal does not extend to mere questions of fact” and that “the right of appeal does not extend to mixed questions of fact and law where, in order to decide the question of law, the court must positively determine a question of fact itself, rather than judicially review the tribunal’s fact-finding”.

In other words, the label of a question of mixed fact and law is apt to distract from dealing with the alleged error. So long as the court on appeal is not required to re-determine facts, as opposed to their legal consequence, then the question put on appeal is within the right of appeal.

Haritos provides a very detailed analysis of the law in relation to appeals on a question of law. The Victorian Court of Appeal, only 6 months before Haritos, considered but declined to decide whether questions of mixed fact and law were within the right of appeal provided by section 148 of the VCAT Act: Cosmopolitan Hotel (Vic) Pty Ltd v Crown Melbourne Ltd [2014] VSCA 353. The Court in Haritos considered that that legislation was relevantly analogous, and it relied for its decision on Victorian and High Court authorities with respect to that legislation for its own decision. It should be expected that Victorian courts would, if called upon to do so, apply and follow Haritos.

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