The ever-elusive fact/law distinction

Thomson Lawbook Co
Publication Type:
Journal Article
Local Government Law Journal, 2007, 13 (1), pp. 66 - 77
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The fact/law distinction, which is ot enormous significance in the context of both the common law doctrine of jurisdictional error, as well as statutory appeal for error of law, is one of many elusive, indeed annoying, dichotomies in our law. The issue of whether a particular question is one of fact as opposed to law is often fraught with difficulties, and the task has been made easier by the courts which have often applied conflicting criteria with indeterminate and altogether unpredictable results. one of the worst grey areas has been the question of whether primary facts, fully found, come within a statutory description. There has been conflicting judicial authority as to whether that question is one of fact or law, but it is now clear that it is ordinarily a question of fact in circumstances where divergent conclusions or inferencesn can, on the evidence, be drawn as to whether or not the primary facts come within the ambit of a statutory description.
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