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LAWS3385: Admin Law I

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No Evidence S 5

Applications for review of decisions

(1) A person who is aggrieved by a decision to which this Act applies that is made after the

commencement of this Act may apply to the Federal Court or the Federal Magistrates Court for an

order of review in respect of the decision on any one or more of the follow grounds

(f) that the decision involved an error of law, whether or not the error appears on the record of

the decision

(h) that there was no evidence or other material to justify the making of the decision

(3) The ground specified in paragraph (1)(h) shall not be taken to be made out unless:

(a) the person who made the decision was required by law to reach that decision only if a

particular matter was established, and there was no evidence or other material (including

facts of which he or she was entitled to take notice) from which he or she could reasonably

be satisfied that the matter was established; or

(b) the person who made the decision based the decision on the existence of a particular fact,

and that fact did not exist.

MAIN ISSUE: Was the decision made in the absence of evidence?

1. Principle

Where the decision maker is under an obligation to decide on facts, the decision must be

based upon evidence such that a complete absence of evidence is an error of law

2. At Common Law

English Approach

Mere insufficiency of evidence for finding a fact can amount to legal error (SSES v

Tameside)

Australian Approach

Legal error arises where there is a total absence of evidence to satisfy an essential element

of the decision, i.e. the decision is invalid (APC v Sellick, Bennett J)

Absence of unimportant facts will not be enough to make out this ground (Workers

Compensation v Smith)

3. [NOTE] Negative finding

No evidence ground is not available where the finding is a negative one (Sunchen,

Perram J)

Reason: Decision make can simply reject the evidence as not credible

Issue: Is the no evidence ground made out under s 5(1)(f)?

1. ADJR Act – s 5(1)(f)

S 5(1)(f) embraces the ‘no evidence’ ground at CL (ABT v Bond, Mason CJ)

Excludes a mere lack of evidence as distinct from a complete absence of evidence

(ABT v Bond, Mason CJ)


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Issue: Is the no evidence ground made out under s 5(1)(h)?

1. ADJR Act – s 5(1)(h)

__(Plaintiff)__ can apply to the court that that there was no evidence or other material to

justify the making of the decision (s 5(1)(h))

S 5(1)(h) expands the ‘no evidence’ ground at CL but in limited situations (ABT v Bond,

Mason CJ)

Only available where there is an ADJR challenge

S 5(1)(h)is elucidated in s 5(3) (ABT v Bond, Mason CJ)

NB: There may be overlap between ss 5(3)(a) and (b) (Rajamanikkam, Gaudron and

McHugh JJ)

Issue: Is s 5(3)(a) applicable? If yes, is it satisfied?

1. S 5(3)(a)

s 5(3)(a) applies to legislation which expressly or impliedly provides that making of

decision (i) depends upon the establishment of matter; and (ii) there is no evidence on

which the decision-maker can be reasonably satisfied that the matter was established (s

5(3)(a); Western Television, Pincus J)

2. ‘Establishment of a particular matter’

S 5(3)(a) restricts the no evidence ground to [cases where] decision maker was required

by law to reach that decision only if a particular matter was established (ABT v Bond,

Mason CJ)

The establishment of a particular fact must be a precondition in law to the decision (TV

Capricornia v ABT, Wilcox J)

It is not enough that the fact was ‘a matter of consideration’ even if it was a ‘very

important matter’ (TV Capricornia, Wilcox J)

Examples

Tribunal was not required in law to reach any conclusion on the question of shareholding

stability of the applicant – NO (Western Television, Pincus J)

The financial capability of a proposed licensee was not as a matter of law a necessary

precondition to a decision to grant the licence – NO (TV Capricornia, Wilcox J)

The Act did not require a finding of the fact that no rough estimate had been obtained –

NO (Sunchen)

3. ‘No evidence… from which the decision maker could reasonably be satisfied’

Enough to show an absence of evidence/material with respect to the particular matter

(ABT v Bond, Mason CJ)

I.e. there is ‘no probative evidence’ to support the finding of fact (ABT v Bond,

Mason CJ)

Overcomes to a limited extent and in a limited area the restrictions on the traditional

no evidence ground which requires ‘total absence of evidence’ (ABT v Bond, Mason

CJ; APC v Sellick, Bennett J)

4. CONCLUSION


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Issue: Is s 5(3)(b) applicable? If yes, is it satisfied?

1. S 5(3)(b)

S 5(3)(b) applies where the decision maker based the decision on the existence of a

particular fact, and that fact did not exist.

Plaintiff bears the onus of proof in showing the requirements of s 5(3)(b) (Sunchen,

Perram J)

2. Identify a ‘particular fact’

‘particular’ in s 5(3)(b) refers to a finding of fact without which the decision in question

either could not or would not have been reached (Rajamanikkam, Gaudron and

McHugh JJ)

NOT ‘particular fact’

Expressions of opinion (ARA v Reserve Bank)

Observations or comments about evidence (DAPQ v Aust Pork)

Findings, assumptions or predictions (DAPQ v Aust Pork)

Only reflect particular facts but are not particular facts in themselves

3. Decision must be based on the particular fact

Decision is based on the particular fact if that fact is ‘critical’ to the making of the

decision (ABT v Bond, Mason CJ; Rajamanikkam, Gaudron and McHugh JJ;

Curragh, Black CJ)

Apply ‘but for’ test (Rajamanikkam, Gaudron and McHugh JJ (court agreeing))

Would the decision have been reached had the particular fact not been made?

Multiple facts

No need to identify a single particular fact said to be the foundation of the decision

(Curragh, Black CJ)

Decision may be based on many particular facts such that each particular fact that is

critical to the decision (Curragh, Black CJ)

‘A small factual link in a chain of reasoning, if it is truly a link in a chain and there are no parallel

links, may be just as critical to the decision’ Decision can be based on concurrent factors (Workers Compensation v Smith)

4. The ‘fact did not exist’

__(Plaintiff)__ must actually negative the fact on which the decision was based (ARA v

Reserve Bank)

Meeting this requirement is ‘extremely difficult’ (ARA v Reserve Bank)

__(Plaintiff)__ must adduce evidence positively establishing contrary to the fact (ARA v

Reserve Bank)

__(Plaintiff)__ can use new evidence – not limited to material before the decision maker

– to establish that a particular fact did not exist (Curragh, Black CJ)

To accept some evidence and reject other evidence… does not amount to an error of law

(Curragh, Black CJ)

5. CONCLUSION


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Issue: After proving s 5(3)(a) / s 5(3)(b), must s 5(1)(h) be satisfied?

1. s 5(3)(a) – unclear

Q whether __(Plaintiff)__ must also satisfy s 5(1)(h) after satisfying s 5(3)(a) has not

been authoritatively determined (Dunstan v Orr)

When the negative deeming in s 5(3) is not enlivened, the question raised by s 5(1)(h) still

needs to be answered (Sunchen – court read down Kirby J’s view in Rajamanikkam)

2. s 5(3)(b) – must satisfy s 5(1)(h)

It is not enough to satisfy s 5(3)(b) alone; __(Plaintiff)__ must also satisfy s 5(1)(h)

(Rajamanikkam, Gleeson CJ and Callinan J affirmed in Dunstan v Orr citing SGFB)

Cf majority who held that s 5(1)(h) is automatically satisfied upon satisfying s 5(3)(b)

(Rajamanikkam, Gaudron, McHugh and Kirby JJ)

S 5(3)(b) is not a ‘qualification’ but is a ‘statement of content’ of s 5(1)(h)

When the negative deeming in s 5(3) is not enlivened, the question raised by s 5(1)(h) still

needs to be answered (Sunchen – court read down Kirby J’s view in Rajamanikkam)

__(Plaintiff)__ must show that there was no evidence or other material to justify the

making of the decision (Dunstan v Orr)


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Cases

Common Law – English Approach

Coleen Properties Ltd v Minister of Housing and Local Government [1971] 1 WLR 433 – YES

Facts: Re local authority’s inclusion of a modern building in a compulsory purchase of dilapidated one

Held: Invalid on basis that no evidence that building was within statutory criteria for reasonably necessary

for the satisfactory development and use of the cleared area. No evidence that this building was required in

the acquisition

Secretary for State for Education and Science v Tameside Metropolitan Borough Council [1977] AC

1014 – YES

Facts: Secretary of State told local education authority not to proceed in a certain way. Secretary can only

so instruct if education authority was acting unreasonably (statutory standard)

Held: No sufficient factual basis for believing that authority’s proposed action will lead to educational

chaos or that education authority was acting unreasonably

Common Law – Australian Approach

ABT v Bond (1990) 170 CLR 321

Facts:

The Broadcasting Act conferred power on the ABT to conduct inquiry into whether the holder of a

commercial broadcasting licence was a fit and proper person to hold the licence, and if not,

whether the licence should be revoked, suspended or have conditions imposed upon it.

B had shareholdings in a number of companies and was able to determine the composition of the

BOD of companies that were the holders of commercial broadcasting licences in Qld.

Inquiry conducted as to whether B was a fit and proper person to hold the licence:

1. a comment was made by B in an interview, that ‘to do biz successfully in Qld’, he had

made a generous financial settlement of an unresolved defamation action by the Qld Premier

that was pending against the licensee of a television station at the time B acquired it

2. an allegation was made that B had threatened to use his television station to broadcast

damaging information about a biz competitor.

During its investigation, ABT published a statement that concluded the allegations against B were

proved and B gave misleading evidence to the tribunal and therefore not a fit and proper person to

hold a licence and that it would decide whether to take action. B then commenced proceedings.

HC Held: Mason CJ

In general, the concept of error of law in s 5(1)(f) is intended to reflect the content of that

expression as it was understood at common law

Effect of s 5(3) is to limit severely the area of operation of the ground of review in s 5(1)(h)

S 5(3)(a) restricts the no evidence ground to decisions in respect of which the decision maker was

required by law to reach that decision only if a particular matter was established

In such a case, the ground of review is that there was "no evidence or other material ... from

which he could reasonably be satisfied that the matter was established".

Enough to show an absence of evidence/material from which the decision maker could

reasonably be satisfied that the particular matter was established – lesser burden than showing

an absence of evidence/material to support the decision

Ss 5(h) and (3)(a) have the effect of overcoming to a limited extent and in a limited area the

restrictions on the traditional no evidence ground

S 5(3) tells against an expansive interpretation of s 5(1)(f)

Might be argued that s 5(1)(h)and (3) that they constitute a definitive and exhaustive statement of

the "no evidence" ground of review for the purpose of s 5, thereby excluding such a ground from

the concept of "error of law" in s 5(1)(f).

However, such a result would verge upon the extreme and would pay scant attention to the

traditional common law principle that an absence of evidence to sustain a finding or inference

of fact gives rise to an error of law.

Better view, is to treat "error of law" in s 5(1)(f) as embracing the "no evidence" ground as it was

accepted and applied in Australia before the enactment of the ADJR Act and to treat the "no


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evidence" ground in s 5(1)(h), as elucidated in s.5(3), as expanding that ground of review in the

applications for which pars (a) and (b) of s 5(3) make provision.

Error of law within s 5(1)(f) could not include a mere lack of evidence as distinct from a complete

absence of evidence (WT v ABT)

Pre-existing CL ground of no evidence was housed in the general ground of ADJR s 5(1)(f) re:

error of law. S 5(1)(h) was an additional statutory criteria of no evidence; and the limiting

stipulations in s 5(3) will only to expand and limit the old general idea.

insufficiency of evidence was never a rule adopted in Australia.

Findings of fact and inferences of fact are not reviewable under the ADJR Act unless jurisdiction

is enlivened by the review of a ‘decision’ or ‘conduct’.

Findings of fact will be reviewable if there is no evidence to support it

Inferences will be reviewable on the ground that it was not reasonably open on the facts which

amounts to the same thing

APC v Sellick [2008] FCA 236

Held: Bennett J

A decision made under the Act is invalid if there is a total absence of evidence to satisfy an

essential element of the decision.

The question whether there is any evidence of a particular fact is a question of law

Failure to advert to the content of submissions does not necessarily mean that the matter was not

considered

If the particular submission did not go to the substance of the decision or would not have affected

the outcome, failure to advert to it in the reasons does not mean that the matter was not considered

and does not give rise to error of law.

Workers Compensation v Smith [2010] NSWCA 19

Held: Basten JA (Allsop P and Handley AJA agreeing)

Absence of unimportant facts will not be enough

Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32

Facts: Relevant fact in dispute was whether the building had actually served extension claim notices on the

owners of the property such that the owners had no right to terminate for delay

Held: Hayne, Heydon, Crennan and Kiefel JJ

Whether there was no evidence to support a factual finding is a Q of law, not a question of fact

There was no evidence before the Tribunal, when it decided the separate question identified by the

parties, upon which the Tribunal could find that the disputed notices had been served

Statute

HABIB v MFAT [2010] FCA 1203

Held:

S 5(3)(a) is directed to the need to identify a particular matter required by law to be established to

reach the decision under review

S 3(b) is directed to the proof of the non-existence of a fact critical to the making of a decision

1st Limb

ABT v Bond (1990) 170 CLR 321

Held:

There will be a discernible breach of duty if a decision of fact is unsupported by probative material

There will be a discernible breach of duty if a findings of fact upon which a decision is based are

unsupported by probative material and if inferences of fact upon which such a decision is based

cannot reasonably be drawn from such findings of fact

A finding of fact will then be reviewable on the ground that there is no probative evidence to

support it and an inference will be reviewable on the ground that it was not reasonably open on the

facts, which amounts to the same thing.


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Western Television Ltd v ABT (1986) 12 FCR 414

Held: Pincus J

This limb relates to legislation which expressly or impliedly provides that making of decision (a)

depends upon the establishment of matter (b), and there is no evidence on which the decision-

maker can be reasonably satisfied that the matter was established

S 5(3)(a) does not apply because no law requires the Tribunal to reach any conclusion on the

question of shareholding stability

Tribunal’s power, express or implicit, does not include punishing applicants thought not to

have sufficient shareholding stability by holding them less suitable to receive a grant than

others

A narrower reading, which makes more practical sense, is that s 5(3)(b) refers only to instances in

which express findings made are plainly incorrect.

Neither ss 5(3)(a) or (b) applies here

TV Capricornia Pty Ltd v ABT (1986) 70 ALR 147

Held: Wilcox J

This limb applies only where the establishment of a particular fact is a precondition in law to the

decision

Although the financial capability of a proposed licensee is a matter for consideration, and no doubt

would usually be regarded by the Tribunal as a very important matter, a finding that a particular

proposed licensee has the financial capability to provide an adequate and comprehensive service is

not, as a matter of law, a necessary precondition to a decision to grant a licence to that person

Sunchen v Commissioner of Taxation [2010] FCA 21

Held: - The first limb did not apply because the Act did not require a finding of the fact i.e. no rough

estimate had been obtained

2nd

Limb

ABT v Bond (1990) 170 CLR 321

Held: Mason CJ

s 5(3)(b) was directed to proof of the non-existence of a fact critical to the making of the decision

MIMA v Rajamanikkam (2002) 210 CLR 222

Facts: Re Migration Act provisions that were replicated ADJR provisions re this ground (identical)

Sri Lankan nationals had applied for protection visas for fear of persecution in their own country.

RRT had identified 8 factors which it said when considered together, led it to conclude that the

claims of the applicants were concocted.

2 of these factors however, were lies, wrongly attributed to the applicant i.e. facts did not exist.

Held (4-1): rejected the challenge

Gleeson CJ: tribunal had identified an alternate reasoning to reject the application.

Gaudron & McHugh JJ: given the range of factors that were raised about the applicant’s

credibility, it is not possible to say that the decision is based upon only the 2 wrong facts.

this seemed to suggested something close to a ‘but for’ test.

Kirby J dissented: Credibility was critical to the application for protection visa. Further, tribunal

had said that it was the 8 factors operating together and the number of difficulties with the

applicant’s evidence that led to the doubts about credibility. To then conclude that the decision was

not based upon the 2 factors would then lead to the court performing its own analysis in order to

substitute its own version of the facts

Majority held that the second limb restriction was not a qualification of (1)(h), but a statement of

its content and therefore, not a cumulative statement on top of (h).

Gaudron, McHugh and Kirby JJ: you have automatically satisfied (h) upon satisfying this limb.

Gleeson CJ and Callinan J: required a separate satisfaction of paragraph (h).

Gleeson CJ: It is not enough to satisfy s 5(3)(b) alone. To do so would ignore s 5(1)(h).

Satisfaction of ss 5(3)(a) or (b), while necessary is not sufficient

Note: the lower courts seem to take this view.


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Gaudron and McHugh JJ (Kirby J, Callinan J and Gleeson CJ agreeing): affirmed ‘but for’

approach as to whether a particular fact was critical to making the decision

Confinement of s 5(3)(b) to cases where the particular fact in question is critical to the

decision

‘critical’ in s 5(3)(a) refers to a finding as to a matter which is required to be established

before the decision in issue can be reached

‘particular’ indicates that s 5(3)(b) is intended to have a more limited operation - refers to a

finding of fact without which the decision in question either could not or would not have been

reached

There may be some overlap between ss 5(3)(a) and (b)

S 5(3)(a) imposes a less stringent test

Dunstan v Orr [2008] FCA 31

Held:

Q: Whether s 5(1)(h) is made out if one of the matters in s 5(3) is established, or the ground in s

5(1)(h) is made out only if there was no evidence or other material to justify the making of the

decision and one of the matters in s 5(3) is established

SGFB A party seeking to make out the ground in s 5(1)(h) by establishing that the decision-maker

based his decision on the existence of a particular fact and that fact did not exist must also

establish that there was no evidence or other material to justify the making of the decision.

Here, the applicant seeks to make out s 5(1)(h) by reference to s 5(3)(a).

The question whether s 5(1)(h) is made out only if he establishes s 5(3)(a) and that there was no

evidence/material to justify the decision or whether he does so simply by establishing s 5(3)(a)]

has not been authoritatively determined

No need to resolve this difficult question

Here, even s 5(3)(a) was not made out

Curragh Qld Mining v Daniel (1992) 34 FCR 212

Facts: Black CJ

Applicant had imported mining equipment in order to meet obligations under contract

Import tariff applied, but concession available where according to statute, no suitable local

manufactured mining equipment reasonably available

Applicant applied for concession on basis that local equipment was not capable of extracting

quantities required

His application was rejected on basis that applicant could have arranged terms of contract in a

manner that can meet obligations using local equipment

Held:

S 5(3)(b) does not require the identification of some single particular fact that may be said to be

the foundation of the decision. A decision may be based upon the existence of many particular

facts; it will be based on the existence of each particular fact that is critical to the making of the

decision. A small factual link in a chain of reasoning, if it is truly a link in a chain and there are no

parallel links, may be just as critical to the decision, and just as much a fact upon which the

decision is based, as a fact that is of more obvious immediate importance. A decision may also be

based on a finding of fact that, critically, leads the decision-maker to take one path in the process

of reasoning rather than another and so to come to a different conclusion.

S 5(3)(b) must contemplate that an applicant will be able to establish that a particular fact did not

exist, and that the applicant will be able to do so in circumstances where there was an absence of

evidence or other material before the decision-maker to justify the making of the decision. It could

hardly have been intended that an order of review would be available only where the non-existence

of the particular fact could be established from the material before the decision-maker

s 5(3)(b) will be based on a particular fact where that finding is critical to the making of the

decision i.e. this is more or less a ‘but for’ approach that was suggested in Rajamanikkam.

Party negativing the fact can use new evidence to do so, they are not limited to evidence

before the decision maker.


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Workers Compensation v Smith [2010] NSWCA 19

Facts: Walker argued that the Minister was bound to consider public interest

Held: adopted Curragh

To accept some evidence and to reject other evidence could, at best, amount to a wrong finding of

fact which does not constitute an error in point of law

What in fact was done amounted to the subdivision of issues into component parts, the appellant in

effect arguing that each part constituted a link in a chain, so that if evidence to support any

particular inference were missing, there would be no evidence to support the ultimate conclusion.

Here, the question of causation was inherently based upon a number of concurrent factors,

each incorporating a significant level of uncertainty.

An ultimate finding of causation may be based on a number of inferences drawn from primary

facts, which may cumulatively allow the ultimate finding to be made.

a logically reasoned inference of material contribution based upon the available expert evidence

betrays no error

Sunchen v Commissioner of Taxation [2010] FCA 21

Facts: Involved a tax dispute over property

AAT found that the tax payer didn’t have a rough estimate of the redevelopment costs at the

relevant time and this was important in deciding how property would be treated for tax purposes.

It was agreed that the tribunal had got their decision wrong, but the tax payer argued that there was

no evidence for the finding and ran both under ADJR and CL no evidence ground

Held: Perram J

It is the taxpayer who bears the onus of proof in showing requirements of s 5(3)(b)

Here, the taxpayer had to prove a negative and not a positive

Tribunal had concluded that taxpayer had failed to discharge the burden of proving that the

premises would be used for property development

Taxpayer failed to show that it was a critical fact

Further, s 5(1)(h) was not made out here, even if s 5(3)(b) was, as there was other evidence to

justify the decision i.e. there was other evidence that the redevelopment might not proceed.

Failure to satisfy either of s 5(3)(a) or (b) necessarily spells failure under s 5(1)(h); however, the

converse is not true

Ss 5(3)(a) or (b) is satisfied as a matter of text merely prevents the negative deeming provided for

in s 5(3) from coming into effect. When the negative deeming in s 5(3) is not enlivened, the

question raised by s 5(1)(h) still needs to be answered:

In doing so, the court once again dodged Raja and read down Kirby J’s view again.

Where a negative finding that something is not the fact is involved. If there exists evidence which

contradicts that negative finding – that is, suggests that something is the fact – it remains rationally

possible for the decision maker to arrive at the same conclusion simply by rejecting that evidence

as not credible.

For this reason, the no evidence ground should not be available where the finding challenged

is in substance a negative one.

Aust Retailers Association v Reserve Bank (2005) 228 ALR 28

Held:

The last element of s 5(3)(b) requires the applicant to actually negative the fact on which the

decision was based. It requires the applicant to adduce evidence positively establishing the

contrary to the "fact" that it is alleged the decision-maker based its decision on, and in respect of

which it is claimed there is no supporting evidence or other material

Meeting this is extremely difficult

The mere absence of evidence as to a fact will not establish its non-existence.

This confirmed the Rajamanikkam case and there was implicit confirmation that it is actually

necessary to negative the relevant fact under s 5(3)(b)

A further limitation upon the operation of the "no evidence" ground of review in s 5(1)(h) is that it

must be confined to findings of fact, and does not extend to expressions of opinion.

Director of Animal and Plant Quarantine v Aust Pork (2005) 224 ALR 103

Held: Observations or comments about the evidence are not ‘particular facts’. Findings, assumptions or

predictions reflect ‘particular facts’. They are not particular facts in themselves.

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