Case: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321
Outcome: cited
Under the error of law ground it is said that the Minister made findings of fact not supported by evidence. These are set out in Annexure 1. It should be noted that there is no ground under s 5 of the ADJR Act which explicitly authorises judicial review on the basis of findings of fact "not supported by the evidence". That ground appears to be wider than the "no evidence" ground in s 5(1)(h). In this case, however, the relevant particular appears to be relied upon to support a finding that the Minister erred in law. In Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321, Mason CJ discussed the relationship between error of law contemplated by s 5(1)(f) of the ADJR Act and the "no evidence" ground referred to in s 5(1)(h) as elucidated in s 5(3). He said (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 AD(JR) Act and to treat the "no evidence" ground in 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 an absence of evidence (or material) to support the decision. The lengthy list of findings set out in Annexure 1 to the statement of claim gives rise to concern that this judicial review process may slide into merits review if not confined to its proper area. It is, however, too early in the proceedings to make any definitive observation in that regard. 10 It is, as counsel for the applicant suggests, open to the Court to give directions that the matter proceed on pleadings. I am not however convinced that this is a necessary course. The judicial review challenge is based upon the Minister's findings. Much of the statement of claim would not appear to be contentious as to background facts. It asserts legal duties and errors but a defence would not sharpen the issues in that respect. The question whether there was or was not evidence to support the findings referred to in Annexure 1 is not a question the resolution of which will be assisted by the filing of a defence. I am prepared to let the applicant's statement of claim stand as a statement of its case. Otherwise, in my opinion, the matter should proceed by way of affidavit and written submissions which may include the provision by the respondent of schedules identifying, in answer to Annexure 1, the evidence said to be supportive of the findings of fact there mentioned and in respect of Annexure 2, the material, if any, relied upon to show that the relevant matters there listed were, if mandatory relevant considerations, taken into account. 11 On the matter of discovery, having regard to the materials which have been disclosed, namely those set out in the Minister's reasons for decision, I see no utility in making any order for general discovery. Phosphate, however, submits that the Minister ought to discover: 1. Documentary material relevant to show what he did and read as his ""consideration" in a real sense and undertaking an active intellectual process" of the material in the documents listed in [28] of the reasons. 2. Documentary material evidencing the time spent reading the documents. 3. If he relied upon information or summaries provided to him by his department, the documents containing the information or summaries provided.