Error of law vs error of fact and s 44 AAT Act appeals on a question of law

Subject: Appeals from the AAT to the Federal Court under s 44 AAT Act are “on a question of law”.  Questions of law can be difficult to distinguish from questions of fact, or, indeed, mixed questions of law and fact.

Case: Commissioner of Taxation v Crown Insurance Services Ltd [2012] FCAFC 153, Full Federal Court

Court: Lander and Foster JJ (maj), Jessup J.

Held: There was no question of law and the appeal was dismissed.

Quote: When the statute under consideration has no technical meaning, but is understood in its plain ordinary meaning, a question of law will arise if the facts found must necessarily have come within the statutory description, but only a question of fact will arise if the facts found are capable of coming within the statutory description.” Per Lander and Foster JJ at [39].

[Note: case arguably fell within 5th proposition in Pozzolanic]

Quote: “On this appeal there was no question of legal principle nor, as we have said, was there any question on the construction of the legislation.  The sole question was whether, as a matter of fact, the respondent received its premium income directly or indirectly from Australia.  It was not said that, as a matter of law, it could not be said that the respondent received its premium income directly or indirectly from Australia.  It was merely argued that the better view of the facts, which had not appealed to the AAT, was that the respondent’s income was sourced indirectly from Australia. That, in our opinion, is a question of fact…” per Lander and Foster JJ at [41]-[42].

Comment: This case contains a neat summary of the authorities in this complex area of the law.