The Victorian Civil and Administrative Tribunal (VCAT) is meant to have the last word on the merits of the decisions it makes. In an appeal from VCAT, the Supreme Court’s role is not to re-make VCAT decisions, but to assess whether they were made lawfully.

Section 148 of the VCAT Act provides for the Supreme Court to hear an appeal from VCAT on a 'question of law'.^[1] Section 148 invokes judicial power to look for legal error in VCAT’s decision. It does so on a basis that is expressly more confined than was the controversy before VCAT.^[2]

The existence of one or more questions of law on appeal from VCAT are a condition of, and found, the Supreme Court’s jurisdiction. Without a question of law, the Supreme Court has no basis on which to hear an appeal from VCAT. Where a question of law exists, it forms the subject matter of the appeal.^[3]

For these reasons, it is essential that parties seeking to appeal from VCAT — and those responding to such appeals — understand what a question of law is. It is also important to state questions of law with precision (for efficiency, including reducing costs) and to include all questions of law in the initial review (as raising new questions at or just before the hearing of the appeal presents further difficulty).^[4]

What is a 'question of law'?

Quintessential questions of law are those about what comprises the law – that is, what a statute or the common law says or means.^[5]

The main difficulty with discerning questions of law, and the subject of most judicial commentary on the meaning of 'question of law', arises where questions of law overlap with questions of fact. This goes to the core of the difference between reviewing the lawfulness and considering the merits of a particular decision.

Such questions might go to VCAT’s primary findings of fact, whether the primary findings of fact substantiate any inferences made, or whether either the primary facts or the inferences fall within a particular statutory definition.^[6]

None of these will amount to a question of law merely because VCAT has preferred one version of the evidence to another or one set of inferences to another — that is the essential function of VCAT as finder of fact. Even if the evidence is 'strongly one way', an appeal court cannot intervene only because it would have reached a different conclusion.^[7] Rather, a question of law will only arise in respect of the factual findings of a decision when those findings were not open to VCAT.^[8]

This is a high bar. Nevertheless, questions of law may arise in respect of factual findings when:^[9]

• no evidence exists in support of a primary fact
• no primary facts were found that could support an inference made
• an incorrect or unsubstantiated fact or inference was crucial to the ultimate finding (the application of the statutory definition to the facts, for example).

Difference between questions of fact and law in relation to factual findings

The difference between questions of fact and questions of law, as they apply to factual findings made by a trier of fact such as VCAT, is illustrated in the table below.

Finding	Question of fact	Question of law
Primary findings of fact: Mr X was slurring his words	Whether the evidence is sufficient to support the fact to required standard of proof	Whether any evidence supports the fact
Findings by inference: Mr X was drunk	Whether another inference is available on the facts	Whether any facts support the inference
Application of relevant statutory/common law test to facts and inferences found: Mr X engaged in misconduct	Whether the circumstances are such as to bring the case within the relevant test (whether the conclusion is correct)	Whether the conclusion critically relied on unsupported facts or inferences

[1] Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act), s 148(1).

[2] Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (2001) 207 CLR 72 [15], [25].

[3] Osland v Secretary to the Dept of Justice (No 2) (2010) 241 CLR 320 [21].

[4] Coliban Heights Pty Ltd v Citisolar Vic Pty Ltd [2018] VSCA 191 [39], [41]; Haritos v Commissioner of Taxation (2015) 233 FCR 315 [62], [63].

[5] The VCAT Act also includes, as questions of law, whether it is contrary to the public interest to include certain information in reasons for a decision or to answer certain questions on privileged information, whether proceedings are frivolous, vexatious, misconceived or lack substance, and questions of mixed law and fact. These are questions of law for VCAT proceedings but, as such, are appealable.

[6] Myers v Medical Practitioners Board of Victoria [2007] VSCA 163; (2007) 18 VR 48 [41]–[44], [47]–[52]; S v Crimes Compensation Tribunal (1998) 1 VR 83.

[7] Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, 151. See also Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.

[8] Myers v Medical Practitioners Board of Victoria [2007] VSCA 163; (2007) 18 VR 48 [53].

[9] Myers v Medical Practitioners Board of Victoria [2007] VSCA 163; (2007) 18 VR 48 [54]–[55]; Tracy Sports Village and Social Club v Walker (1992) 11 FLR 32, 37–8; S v Crimes Compensation Tribunal (1998) 1 VR 83, 90–91.