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Week 10 - Ground - No Evidence

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GROUND OF JR – No Evidence State Grounds for Judicial Review: Here it is necessary to examine the following grounds: • [list grounds] • Considering each… (In particular consider – Irrelevant & Relevant Considerations) 1. IS THERE NO SUPPORTING EVIDENCE? Here [applicant] seeks to establish that the decision was made without supporting evidence: [5(1)(h), 5(3) AD(JR) Act (Cth) or 20(2)(h), 24 JR Act (Qld)] & ABT v Bond. This ground has substantial difference between statutory ground and common law precursor. A) COMMON LAW POSITION: The English approach only requires decision based on insufficient evidence (Coleen Prop; Tameside); this was however rejected in Australia (Bond Mason CJ). In Australia court is not concerned with a similar want of logic. The decision-maker need only show some basis for an inference for this ground to not be made out: ABT v Bond (Mason CJ). This ground sits close to a merits review but is considered to be a question of law as the evidence leads to the inference used to decide the question of law: ABT v Bond @ 355. Therefore [applicant] must show a complete absence of evidence to support a decision so that it is an error of law. Here, ________. N.B. No error to incorrectly find fact – i.e. inferences not enough even if illogical reasoning: ABT v Bond [88]. EXAMPLE Re Australian Stevedoring Industry Board Board had power to investigate industry + cancel registration of waterside workers where satisfied that employer unfit to continue. Employer in question had minor record keeping infractions - employer sought writ of prohibition from HCA. HELD: Board had no evidence on which to hold that employer unfit to continue (record keeping matters irrelevant). In Australia, differences between insufficiency of evidence and no foundation of fact at all Here, Board had no facts on which to continue inquiry - granted writ of prohibition in favour of employer to stop board cancelling registration. EXAMPLE Ashbridge Investments v The Minister for Housing Minister had to determine what constituted a house before making a slum clearance order. HELD: Lord Denning: if the minister made a decision in which he acted on no evidence, then the minister has acted beyond power. EXAMPLE Coleen Properties Ltd v Minister of Housing and Local Government Declared area a "clearance area" and made compulsory purchase orders, rejecting the report that these were "first class". HELD: Followed Denning - in the above case, ie “if there is no evidence to justify a decision then the decision maker has acted beyond power.” EXAMPLE Secretary of State for Education and Science v Tameside Metropolitan Borough Council Local Education Authority decided to change all of the schools in their area from the comprehensive school system to the grammar school system. Decision had to be approved by the Secretary of State for Education and the secretary of state approved the decision by the authority. Later election and the Local Council went out of office and a new local education authority was elected. New Authority reversed the decision of its predecessor to change the school system in the area to grammar and to remain with the comprehensive school system. BUT the Secretary of State issued a statutory power directing them to go ahead and implement the changes from the comprehensive system to the grammar system. Held: The Secretary of States direction to the local education authority was unlawful on the ground of unreasonableness – The decision could only be reasonable if was clear evidence that the policy reversal would bring about administrative chaos – there was no evidence of this. B) STATUTORY POSITION: The CL no evidence rule is contained implicitly in the error of law ground under subsection (f) whilst subsection (h) acts as an additional no evidence ground unique to statutory judicial review: ABT v Bond (Mason CJ). Section [5(1)(h) AD(JR) Act (Cth) OR 20(2)(h) JR Act (Qld)] provides for two limbs: st • 1 Limb: 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 ….from which he or she could reasonably be satisfied that the matter was established; OR nd • 2 Limb: the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist. In order for [applicant] to establish grounds there are two parts under [Limb 1 = 5(3)(a) OR Limb 2 = 5(3)(b)] that must be made out. ST 1 LIMB: COULD [DECISION] MAKER BE SATISFIED THAT EVIDENCE OF [MATTER] WAS ESTABLISHED? Element 1: ‘Particular Matter’ The statute must require that a “particular matter” be established as a condition precedent to making a valid decision, on this the courts have shown a strict interpretation: Western Television Ltd; TV Capricornia. IF not a pre-condition: Here the decision would be similar to that in TV Capricorn and this ground would not be made out as [matter] was not a precondition to the final decision being reviewed. Here, ____________. IF was a pre-condition: Here the legislation expressly requires determination of [fact]. Therefore here the test from TV Capricorn would be satisfied. e.g. Western Television: applicant argued was no evidence to support the assumption that corporate shareholding is less stable. In order to satisfy this element, the applicant had to show that the legislation established corporate shareholding as a condition precedent to the making of the decision – this would make corporate shareholding a “particular matter”. Simply - “If A and B exist, the decision maker may make a decision not to grant the licence”. If the statute says that “licence may be granted after considering A, B and C”, then the ground in 5(1)(h) will not be available as a ground of judicial review. Needs to be pre-condition! Element 2: ‘No Evidence or other Material’ Here, ______________. Evidence = wider than legally admissible evidence (because Administrative Tribunals not bound by the rules of evidence). Other Material = shows that the ground does not depend on showing an absence of legally admissible evidence to support the decision, which is a relaxation of the common law. Element 3: ‘from which he or she could reasonably be satisfied’: No need to show complete lack of evidence; a lack of probative evidence to support it will suffice (Cf. ABT v Bond Mason CJ): TV Capricornia v ABT. Here, [was OR was not] evidence from which the decision maker could be reasonably satisfied that the facts were established to support the decision; because here, _______. st Conclude 1 Limb: Therefore, this ground can/n’t be established on the first limb. EXAMPLE Western TV v ABT Grant of TV licence to the “most suitable applicant” by the ABT; Two coy’s competing for licence in certain area. No statutory test of “most suitable”. ABT decided that shareholding stability relevant - because corporate shareholders are generally less stable than individual shareholders and so more chance of ownership of coy changing if coy had many corporate shareholders. ABT gave licence to most “stable” coy. HELD: 1 Limb: s5(3)(a): This provision relates to legislation, which either expressly
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