1.4.7 JR Grounds--No Evidence

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Course
JSB171
Professor
All Professors
Semester
Spring

Description
JR Grounds—No Evidence Decision: ss 5(1)(h) & 5(3) ADJR | ss 20(2) & 24 JR Conduct: ss 6(1)(h) & 6(3) ADJR | ss 21(2) & 24 JR 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 following grounds: (h) that there was no evidence or other material to justify the making of the decision; & The ground specified in paragraph (1)(h) shall not be taken to be made out unless: (a) the person who proposes to make the decision is required by law to reach that decision only if a particular matter is established, and there is no evidence or other material (including facts of which he or she is entitled to take notice) from which he or she can reasonably be satisfied that the matter is established; or (b) the person proposes to make the decision on the basis of the existence of a particular fact, and that fact does not exist. Common Law (Strictly no evidence) Test • Must show complete absence of evidence to support a decision such that it is an error of law (otherwise looks like a merits review): R v Aust Stevedoring Industry Board (Board with power to cancel registration of unfit employers—one employer had minor record-keeping infractions—board cancelled registration  record-keeping irrelevant to fitness of employer → no evidence → writ of prohibition granted) • Not enough to show— o Insufficient evidence: Coleen Properties (UK) (rejected in Australia: Mason in ABT v Bond) o Decision could not reasonably have been made on the evidence: statutory position Examples • If ‘evidence’ is irrelevant then no evidence at all: R v Australian Stevedoring Industry Board (Board with power to cancel registration of unfit employers—one employer had minor record- keeping infractions—board cancelled registration  record-keeping irrelevant to fitness of employer → no evidence → writ of prohibition granted) • With evidence to the contrary: Coleen Properties Ltd v Minister of Housing and Local Government (compulsory purchase orders in ‘clearance area’—rejecting report that area was ‘first class’) • Minister cannot act on the basis of no evidence: Ashbridge Investments v Minister for Housing (Classification of houses in slum area  Lord Denning: if the minister made a decision in which he acted on no evidence, then the minister has acted beyond power) Now incorporated in “Error of Law” in s5(1)(f) ADJR: ABT v Bond Mason J (Decision: s5(1)(f) ADJR | s20(2)(f) JR; Conduct: s6(1)(f) ADJR | s21(2)(f) JR) (f) that the decision involved an error of law, whether or not the error appears on the record of the decision • Error of law = making the decision without any evidence to base it on • NOT a merits review—only an error of law if strictly no evidence Andrew Trotter LWB335 Administrative Law Andrew Trotter LWB335 Administrative Law Extended by statute—Two limbs in s6(3) ADJR | s24 JR (1) Statutory condition precedent not established: s6(3)(a) ADJR | s24(a) JR the person who proposes to make the decision is • required by law to reach that decision only if a particular matter is established, and • there is no evidence or other material (including facts of which he or she is entitled to take notice) from which he or she can reasonably be satisfied that the matter is established; or 1. Particular matter o Statute requires something to be established as a condition precedent to making a valid decision:  Not a condition precedent if no test set out in statute: Western Television Ltd (granting TV licence to ‘most suitable applicant’—no statutory test for ‘most suitable’—gave to most ‘stable’ company judged by proportion of corporate shareholders (less stable than individuals)—alleging lack of evidence to make that call  not a statutory test so not condition precedent → ground not made out);  Condition precedent if mandatory consideration set out in statute: TV Capricornia v ABT (not mentioned) (licence—had to consider ‘financial management & technical capabilities’—alleging no evidence to establish that rival (winner) company had that capacity  statutory condition precedent → no evidence) 2. No evidence or other material o Need not show an absence of legally admissible evidence to support the decision 3. From which he or she could reasonably be satisfied o Lowers standard from CL o Need not show complete absence of evidence to support the decision— a lack of probative evidence to support it will suffice: ABT v Bond per Mason CJ; TV Capricornia v ABT (2) Decision based on incorrect fact: s6(3)(b) ADJR | s24(b) JR the person proposes to • make the decision on the basis of the existence of a particular fact, and • that fact does not exist. 1. Particular fact o generally means a ‘secondary’ or ‘ultimate’ fact, rather than a ‘primary’ or ‘evidentiary’ fact: Curragh Qld Mining v Daniel (importing machinery—Customs said should have renegotiated contract deadline, used Australian equivalent  based on fact that company could negotiate contract deadline)  Primary fact = bare facts (A has red hair)  Secondary fact = assumption as to legal implication of primary fact (people with
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