Case: Comcare Australia v Lees (1997) 151 ALR 647
Outcome: cited
what must be shown to establish " no evidence " remains unclear. For example, in Comcare Australia v Lees (1997) 151 ALR 647 at 652 to 653, Finkelstein J expressed his views as follows: The first ground alleges that there was no evidence before the tribunal to support its finding that the respondent had suffered an injury that resulted in an impairment to his legs. Generally speaking, a finding of fact is not reviewable by the court. But it has long been established that an insupportable finding of fact may be set aside. This is because the question whether there is any evidence of a particular fact is a question of law. Further, whether a particular inference can be drawn from facts is also a question of law. In the province of judicial review the making of findings and the drawing of inferences in the absence of evidence is an error of law: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 335-6; [1990] HCA 33 ; 94 ALR 11 per Mason CJ. Precisely what must be shown to make out a case of "no evidence" has been the subject of much judicial comment. In a recent decision in the Supreme Court of Victoria, Roads Corp v Dacakis [1995] 2 VR 508 at 520, Batt J said that a finding of fact will only be open to challenge as an error of law if there was no evidence to support it and that such a finding would not be open to challenge merely because it was not reasonably open on the evidence. Batt J went on to say that an inference will be open to challenge if it was not reasonably open on the facts. There is no doubt that the first proposition is correct. It follows directly from what was said by Mason CJ in Bond as well as many other cases in Australia although the position might be different in England. Most of the important cases are collected in the judgment of Phillips JA in Powley v Crimes Compensation Tribunal (CA(Vic), 16 December 1996, unreported). It is not clear whether the second proposition accurately states the law and I notice that Batt J himself had some doubt about it. The difficulty comes about from a passage in the judgment of Mason CJ in Bond at CLR 360 where his Honour said that "an inference will be reviewable on the ground that it was not reasonably open". In my view there is a very real possibility that the use of the word "reasonably" in the passage quoted was not intended to make less onerous the task of challenging, as an error of law, the drawing of an inference. Certainly Phillips JA did not think so in Powley : see his reasons at 12-14. For present purposes, however, it is unnecessary to further clarify what is meant to be conveyed by a submission that there is " no evidence " to support a finding. Irrespective of the precise test to be applied before finding there is " no evidence ", evidence exists to support the Tribunal's findings in the case at hand. The Corporation's first Ground of Appeal focused attention upon the following two paragraphs of the reasons for decision of the Administrative Appeals Tribunal: [43] We accept that both Professor Fearnside and Dr Maxwell accepted that the incident caused the gluteal injury. Ms Hughes' description of events around the injury involved adduction (away from the midline) of her left leg rather than adduction (towards the midline). Both Professor Fearnside and Dr Maxwell considered gluteal tendinopathy to result form [sic] an adduction of the leg rather than abduction. There was some evidence relating to twisting. Professor Fearnside presumed that there had been a twisting from the manner of the fall. Dr Maxwell said in effect that if she [sic] was any twisting at that point that could have caused the injury. ... [45] We find that as at 24 April 2007 Ms Hughes continued to suffer from the effects of the injury to her lower back and left hip joint sustained during the course of her employment on 13 January 2006. She was asymptomatic before the incident on 13 January 2006 and continues to experience symptoms. Australia Post therefore continues to be liable for the effects of the injury pursuant to sections 16 and 19 of the Act.