Case: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Outcome: referred to
Both parties refer to Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 ( Bond ) in which Mason CJ discussed whether a finding of fact can constitute a reviewable decision, and when a finding of fact can constitute an error of law that contributes to a reviewable decision. 392 In respect of both, Mason CJ stated (at 340-341): ... in ordinary circumstances, a finding of fact, including an inference drawn from primary facts, will not constitute a reviewable decision because it will be no more that a step along the way to an ultimate determination. Of course an ultimate determination which depends upon a finding of fact vitiated by error of law or made without evidence is reviewable: see s. 5(1)(f) and (h) [of the ADJR Act]. In such a case the finding of fact may be challenged as an element in the review of the ultimate determination. 393 His Honour went on to explain when a decision involves an error of law (at 353): A decision does not "involve" an error of law unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different. The critical question on this aspect of the case is whether, but for the alleged error of law ... the decision might have been different by reason of the possibility that the Tribunal would not have made the findings of fact ... [that] were made. 394 Later in his Honour's reasons, the Chief Justice stated (at 355) that findings of fact, including inferences, will have involved an error of law where there was no evidence or other material to justify the making of the finding (see s 5(1)(h) of the ADJR Act). His Honour noted (again at 355) that the question whether there is any evidence of a particular fact, or whether a particular inference can be drawn from facts found or agreed, is a question of law, and that in the context of judicial review it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law. After quoting from Menzies J in Reg v District Court; Ex parte White [1966] HCA 69 ; (1966) 116 CLR 644 at 654, Mason CJ concluded (at 356) that according to the Australian authorities, at common law want of logic is not synonymous with error of law, and that so long as an inference is reasonably open, even if drawn as a result of illogical reasoning, there is no place for judicial review for error of law. 395 In oral submissions, senior counsel for Telstra stated that Telstra relied on the "common law no evidence" ground as expressed by Mason CJ in Bond . 396 As mentioned previously, Telstra submits that there was no evidence to support ACCC's finding that Telstra was already fully recovering its line costs. 397 Although Telstra accepts that ACCC had expressed its view that Telstra was recovering its line costs at various times prior to the making of the Final Determination, it contends that it would be unsafe to assume that the support for that view continued to be available at the time of the Final Determination. For example, Telstra notes that the ADC (referred to at [351] above) had been "discontinued" (see ACCC's Final Determination for model price terms and conditions of the PSTN, ULLS and LCS services of October 2003, section 8.8, pp 60-61). Although at the time of its discontinuance, ACCC concluded that Telstra would still recover its line costs even without the ADC, Telstra's point is that Telstra operates in a "dynamic industry" and that its line costs and sources of recovery may change over time. 409 If I had found that Telstra was denied procedural fairness, or that ACCC had made an error of law, Telstra would still need to show that there was at least a possibility that a different result might have been reached: Bond at 353; ex parte Aala at [80].