Case: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321
Outcome: cited
In this context, a finding involves an error of law when there is no evidence at all to support it ( Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 355-356 and 358 per Mason CJ ( Bond ). It is not sufficient, however, that the decision-maker draws an inference by illogical reasoning. Rather, it must be established that there was no evidence permitting the drawing of the inference by any process of reasoning ( Bond at 356). 340 The factual findings in question made by ACCC in each of the LSS arbitrations are: that introducing a contribution to line costs within the period of the LSS FD would require significant changes to the access seeker's business (see [331] of Adam LSS FD Statement of Reasons set out at [334] above); that the access seeker will have formed its business plan in expectation that ACCC would act consistently with the 2002 LSS Pricing Principles (see [331], [332] of Adam LSS FD Statement of Reasons set out at [334] above); and that introducing a contribution to line costs into the LSS Annual Charge would be likely to necessitate a shift in the access seeker's business model and divert it from conducting its business (see [335] and [376] of Adam LSS FD Statement of Reasons set out at [334] and [335] above). I will call these "the Findings" or "the Four Findings" and will refer to them individually by number, e.g. Finding 1, 2, 3 and 4. Telstra's submissions in general 341 Telstra complains that there was "no material or other evidence" before ACCC in each proceeding to support the Findings (Telstra's words are similar to those found in s 5(1)(h) of the ADJR Act, but Telstra does not raise that ground of review (see [362] below)). In particular, Telstra complains that although the access seekers' submissions allege various matters in respect of their business plans, no document was produced (apart from the statement of Mr Hicks, discussed below): recording any business plan; showing the likely effect on a business plan of an LSS Annual Charge that included a line cost contribution; identifying the amount of the LSS Annual Charge that an access seeker expected to be charged; containing a financial model that revealed the basis of any business plan of an access seeker; demonstrating the effect of an LSS Annual Charge above the $2.50 level which was, in the event, set by ACCC. 353 Therefore, the access seekers argue, the inferences drawn by ACCC were "reasonably open" (see Bond at 356). No profit and loss statements were necessary, so the access seekers contend, for those conclusions to be supportable. The parties' submissions relating to Mr Hicks's statement 354 I turn now to Mr Hicks's statement. 355 It will be recalled that in his statement that was annexed to AAAP's submissions to ACCC (see [305] above), Mr Hicks referred to an assumed LSS price that was used in Adam's business models at certain times. Telstra submits that Mr Hicks's statement directly contradicted ACCC's findings (in the case of Adam) as distinct from merely not supporting it. Telstra does not specify the supposed contradiction. Telstra points out in addition that Mr Hicks's statement does not refer to any expectation on the part of Adam that the LSS price would not include a contribution to line costs. 362 In discussing the ground of review provided for in s 5(1)(f) as compared with that in s 5(1)(h) (the "no evidence" ground in the ADJR Act), Mason CJ said in Bond (at 358): The better view, one which seeks to harmonize the two grounds of review, 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 evidence" ground of review [that is, 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. Within the area of operation of par (a) it is enough to show an absence of evidence or material from which the decision-maker could reasonably be satisfied that the particular matter was established, that being a lesser burden than that of showing absence of evidence (or material) to support the decision. The limitations provided for in s 5(3) of the ADJR Act therefore have no application, but the strictures associated with the no evidence ground at common law apply. 363 It is necessary to bear in mind the following features of the Div 8 arbitrations as they were conducted by ACCC: (1) ACCC was not bound by technicalities, legal forms or rules of evidence, and was entitled to inform itself of any matter relevant to the dispute in any way it thought appropriate (s 152DB(1)(a) and (c)); (2) ACCC had power to give generally all such directions and do all such things as were necessary or expedient for the speedy hearing and determination of the access disputes (s 152DC(1)(f)); (3) In accordance with ACCC's directions, the arbitrations were not divided into evidentiary and submissions stages as would be the case in litigation, and ACCC was entitled to "inform itself" by means of the parties' "submissions"; (4) ACCC had long since made it clear that ideally entities accessing the LSS should contribute to Telstra's line costs, but that since ACCC considered that Telstra was already recovering those costs, it was a condition of the inclusion of a contribution to line costs that there be a rebalancing as between LSS on the one hand and ULLS and WLR on the other hand, in order to ensure that Telstra would recover no more than its line costs and did not "double dip"; (5) ACCC reasoned, as it was entitled to do, that a rebalancing would create an incentive to move from LSS to ULLS or WLR because an access seeker that accessed the LSS alone would be less competitive compared with those that accessed the ULLS and WLR because of the reduction in Telstra's charges to the latter resulting from the rebalancing. 364 Understandably, in the report accompanying the DFD, ACCC accepted that a rebalancing would take time, have the potential to disrupt competition in DSL services, and would involve Telstra in restructuring its existing charges for other services. ACCC sought submissions from the parties as to whether there was a real prospect for a rebalancing to take effect prior to the proposed expiry date of the proposed FDs (which was then only a matter of months away; see [294] above).