Fuller & Anor v Resource Management and Planning Appeal Tribunal
[2009] TASSC 51
•21 July 2009
[2009] TASSC 51
CITATION:Fuller & Anor v Resource Management and Planning Appeal Tribunal [2009] TASSC 51
PARTIES: FULLER, George Edwin
GRANDVEWE PTY LTD ACN 120518363
v
RESOURCE MANAGEMENT AND PLANNING
APPEAL TRIBUNAL
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: 246/2008
DELIVERED ON: 21 July 2009
DELIVERED AT: Hobart
HEARING DATE: 15 June 2009
JUDGMENT OF: Evans J
CATCHWORDS:
Administrative Law – Judicial review – Grounds of review – Generally – No evidence ground advanced under the cover of an improper exercise of power ground.
Judicial Review Act 2000 (Tas), ss17(2)(e) and 20(b).
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, applied.
Aust Dig Administrative Law [1028]
REPRESENTATION:
Counsel:
First and Second Applicants: K C Flemming QC
Respondent: Notice of submission provided
Solicitors:
First and Second Applicants: Tierney Law
Respondent: Notice of submission provided
Judgment Number: [2009] TASSC 51
Number of paragraphs: 35
Serial No 51/2009
File No 246/2008
GEORGE EDWIN FULLER and GRANDVEWE PTY LTD ACN 120518363
v RESOURCE MANAGEMENT AND PLANNING APPEAL TRIBUNAL
REASONS FOR JUDGMENT EVANS J
21 July 2009
The second applicant, Grandvewe Pty Ltd, operates a sheep cheesery, winery and related tourist facility at Birchs Bay. In earlier proceedings referable to this matter, these operations have been referred to as Grandvewe Cheeses. I will do likewise. The first applicant, George Edwin Fuller, owns a property on the Channel Highway at Woodbridge, approximately 3 kilometres from Grandvewe Cheeses. A sign advertising Grandvewe Cheeses is erected on Mr Fuller's property. The front of the sign (when travelling towards Grandvewe Cheeses) contains the following information:
·Grandvewe Cheeses
·Sheep Cheese Tasting
·Lamb Feeding
·Wine Tasting
·Ahead 3km.
The back of the sign contains the same information, save that "Back 3km" is substituted for "Ahead 3km".
The Kingborough Council requested Mr Fuller to remove the sign on the basis that it was erected in contravention of the Kingborough Planning Scheme 2000 ("the Scheme") as a permit had not been granted for its erection. Mr Fuller refused. The Council applied to the respondent Tribunal for an order that Mr Fuller remove the sign. Grandvewe Pty Ltd, as the owner of the sign, was joined as a party to the proceedings before the Tribunal. Before the Tribunal the applicants contended that, pursuant to the Scheme, cl 4.1(h)(viii), it was not necessary to obtain a permit for the erection of the sign as the effect of that clause is that a permit is not required in relation to signs indicating the direction and distance to destinations of key interest to visitors. The applicants contended that Grandvewe Cheeses was such a destination, and moreover that it fell within an example of such a destination contained in the clause, that being an attraction of State significance.
On 12 September 2007, the Tribunal found that the sign had been erected without a planning permit and should be removed, and made an order to that effect. The applicants appealed to this Court against that determination. On 7 December 2007, an order was made by consent that the Tribunal's decision be set aside and the matter be remitted to the Tribunal to determine whether Grandvewe Cheeses was a destination of key interest to visitors within cl 4.1(h)(viii). The matter was reconsidered by the Tribunal. On 3 March 2008 the Tribunal published reasons for decision in which it concluded that Grandvewe Cheeses was not such a destination. The applicants have applied for an order of review referable to that decision, pursuant to the Judicial Review Act 2000. They assert that in reaching its decision the Tribunal took into account irrelevant considerations, failed to take into account relevant considerations, and that there was no evidence to support the Tribunal's finding.
Pursuant to the Scheme, save where otherwise provided, the erection of a sign is a development which requires a permit. Signs are subject to the Signs Schedule contained in Schedule 8 of the Scheme, which includes the following provision:
"8.1.1 The purpose of this schedule is to ensure that use or development for a sign protects the visual amenity of the building or place on which they are located, provide necessary information for the public and do not compromise public safety. This Schedule applies to the construction, putting up for display or erection of signs as development and the continuous display as a use."
Pursuant to the Signs Schedule, 8.2.4.1, a permit is not required in respect of a sign that is exempted by the Scheme, cl 4.0, which relevantly provides:
"4.1The Following Use or Development does not require a Permit under the Scheme:
…
(h)Signage: The construction or erection of a sign as development and the display of information upon that sign as use… where:
…
(viii)signs indicting the direction and distance to destinations of key interest to visitors including:
· Town or commercial centres;
· Major natural visitor attractions;
· Visitor service locations;
· Tasmanian Visitor Information Centres;
· Attractions of Sate significance as defined in the Tasmanian Roadside Signs Manual (May 2001);
· Visitor radio; and
· Natural, cultural or historic features."
The primary contention advanced on behalf of the applicants before the Tribunal was that Grandvewe Cheeses was of key interest to visitors as it was an attraction of State significance as defined in the Tasmanian Roadside Signs Manual (May 2001) ("the Signs Manual") which in Part E, "Tourism Signs – Types", cl 3(vi), relevantly provides:
"Attractions Of State Significance
(a) Introduction
An attraction of state significance can be a natural, cultural or historic feature or a commercial tourist facility which is considered to be of substantial importance to the State's tourism industry.
(b) Key Criteria
Attractions of state significance must have all relevant State and Local Government licences to operate as a tourist attraction and must:-
·comply with all criteria for being either a Commercial Tourist Facility or a Natural, Cultural or Historic Feature.
·showcase a particular feature of Tasmania, whether it be the state's history (eg Port Arthur Historic Site), wilderness (eg Cradle Mountain) or culture (eg Salamanca Place).
·offer a unique (eg Grubb Shaft Museum) or exceptional (eg Wineglass Bay) visitor experience when compared with other attractions of its type.
·attract over 10 000 visitors each year.
·be open at least 9 months of the year and preferably all year round.
The authority for determining whether a feature is deemed an Attraction of State Significance shall be the Chief Executive of Tourism Tasmania.
(c) List of Current Attractions of State Significance
Entally House, Woolmers Estate, Abt Wilderness Railway, Clarendon House, Botanical Gardens, Grubb Shaft Museum, Cradle Mountain National Park, Port Arthur Historic Site, Tahune Forest Air Walk, Tamar Sea Horse Farm, Freycinet National Park, Bay of Fires Coastal Reserve,
(TO BE ADDED TO IN CONSULATION)."
A form of attraction which, pursuant to the Signs Manual, Part E, cl 3(vi)(a), can be of State significance is "a commercial tourist facility". With reference to that term, the Signs Manual relevantly provides as follows in Part E, cl 2:
"Commercial Tourism
2.1 Core Activity
A commercial tourist facility will be a business whose core activity must be tourism based and have a strong commitment to service visitors.
2.2 Key Criteria
The business must have all relevant licences and approvals to operate as a tourism business and must:
(i)provide a substantive visitor experience or service eg accommodation, gift shop, antique store, gallery or restaurant.
(ii)be open on weekends and at least three other days of the week, as well as public and school holidays.
(iii)be open at least 9 months of the year, with periods of closure evident on signage.
(iv) be listed on the database of the nearest TVIN centre.
(v)be registered for tourism accreditation with the Tourism Council of Australia."
The evidence before the Tribunal as to the operations carried out by Grandvewe Cheeses included evidence contained in an affidavit sworn by Alan Cecil Irish, a Director of Grandvewe Pty Ltd, to the effect that the business was comprised of a sheep shed (which incorporates a sheep dairy), a factory for processing the sheep milk into cheeses and yoghurts, a winery and tourist facilities where tourists (local, interstate and international) can observe and experience all aspects of the business and can purchase the products made from sheep milk, wines and gift shops/novelty items. He also said in an affidavit:
"7 …
b)Grandvewe Cheeses provides a substantive visitor experience. Visitors to the Grandvewe Cheeses facility are able to observe and, if desired, to participate in:
-sheep milking;
-cheese making;
-farm tours;
-factory tours;
-audio/visual experience;
-lamb petting and feeding;
-guided educational cheese tasting;
-wine tasking;
-winery tours; and
-a gift shop and novelty items related to the business.
In addition, Grandvewe Cheeses operates a café which provides morning and afternoon teas as well as lunches based on a 'cheese-themed' menu.
…
9Grandvewe Cheeses offers a unique and/or exceptional visitor experience to the Tasmanian public and to tourists to this State. The experience is unique and exceptional in that Grandvewe Cheeses is the only sheep dairy and manufacturer of sheep milk products open to the public in Tasmania. There are no other attractions of this type with which Grandvewe Cheeses could be compared.
10Grandvewe Cheeses attracts well in excess of 10000 visitors to its facility each year. …"
The evidence before the Tribunal included a letter written by Graeme Chambers, Chief Executive Officer of "Totally South" Tourism in which he said that Grandvewe Sheep Cheesery at Birchs Bay, was considered to be an attraction of key interest to local and interstate visitors travelling in the Channel region.
Against the background of this evidence, the Tribunal in its reasons for decision said:
"11Whilst there was evidence before the Tribunal that Grandvewe Cheeses could be considered a 'destination of key interest to visitors', this phrase should be considered in the context of the Scheme provision. The sign must also indicate direction and distance. It was submitted by Mr Armstrong [counsel for the Council] that the sign contains more information than simply direction and distance and the Tribunal agrees. The Tribunal does not accept however, that the presence of other wording describing the nature of the business prevents it from being considered a sign indicating direction and distance to destinations of key interest within the meaning this Clause. The words 'back 3km' and 'ahead 3km' indicate the distance to the destination from the point where the sign is erected and its direction.
12The Scheme provision indicates the nature and type of destinations which are considered to be destinations of key interest to visitors and accordingly exempt from planning approval. In the Tribunals view, reference must be had to these examples in the consideration as to whether the subject business either fits within one of these classes or is of a like nature and thereby exempt. The inclusion of the examples must be given some relevance. If examples had not been so included, all that would be required for a sign to be exempt is that it indicate the direction and distance to a destination of a key interest to visitors. The Tribunal in paragraphs 22 and 23 of its decision commented on the ramifications of a sign being exempt from planning approval and also from compliance with the Tasmanian Roadside Signs Manual.
13Whilst the Tribunal can accept that the evidence supports a finding that Grandvewe Cheeses is a destination of key interest to visitors and that the subject sign does indicate direction and distance, the nature of the business Grandvewe Cheeses is not akin to nor does it possess the characteristics of any of the examples referred to in Clause 4.1(h)(viii). It is not a town or commercial centre, nor is it a major natural visitor attraction, a visitor service location, a Tasmanian Visitor Information Centre, a declared attraction of State significance, a visitor radio or a natural cultural or historic feature. It is instead a relatively small-scale private business which offers a unique visitor experience by providing an opportunity for tourists to observe and experience all aspects of the production and processing of sheep milk into cheeses and yoghurts as well as purchase the products made from sheep milk, wines and gifts. There are many other non-government tourist operations that may be unique and offer exceptional visitor experiences that in the Tribunal’s view would not have exemption from planning approval for a sign because they do not fit within those destinations contemplated by Clause by 4.1(h)(viii). Examples cited in that clause provide a measure by which signs for such businesses can be considered to be exempt. There was no evidence lead which persuaded the Tribunal that the operation of the business known as Grandvewe Cheeses was akin to any of the examples referred to in this clause other than it met the criteria listed in the signs manual for an attraction of State significance.
14For the above reasons the Tribunal determines that Grandvewe Cheeses is not a destination of key interest to visitors within the meaning of the Kingborough Planning Scheme 2000 Clause 4.1(h)(viii)."
The application for an order of review is drawn in an unusual manner insofar as the grounds of review are numbered from 5 to 12. The order in which I will address them is, in part, based on the order in which the subject of each ground is dealt with in the decision. It is to be remembered that the proceedings before me do not involve a reconsideration of the subject of the Tribunal's decision but are a review of that decision on such of the grounds provided for in the Judicial Review Act, s17(2), as have been relied upon by the applicants.
Grounds 8 and 11 are:
"8The Decision involved an improper exercise of the power conferred by the enactment under which the decision is proposed to be made (Section 17(2)(e) of the Judicial Review Act 2000).
Particulars
The Tribunal took into consideration an irrelevant consideration in the exercise of its power, namely that the word 'including' in Clause 4.1(h)(viii) of the Scheme limits the criteria for 'destinations of key interest' to those defined terms.
…
11The Decision involved an error of law (whether or not the error appears on the record of the decision) (Section 17(2)(f) of the Judicial Review Act 2000).
Particulars
The Tribunal took into consideration and irrelevant consideration in the exercise of its power, namely that the word 'including' in Clause 4.1(h)(viii) of the Scheme limits the criteria for 'destinations of key interest' to those defined terms."
It may have been appropriate for the Tribunal to have concluded that the word "including" in par(viii) was used with the intention of providing an exhaustive list of the examples encompassed by the phrase "destinations of key interest to visitors". Whether it should have done so depends upon an examination of the clause containing that paragraph and the Scheme as a whole. As Kitto J commented in YZ Finance Company Pty Limited v Cummings (1964) 109 CLR 395 at 401 - 402:
"Unlike the verb 'means', 'includes' has no exclusive force of its own. It indicates that the whole of its object is within its subject, but not that its object is the whole of its subject. Whether its object is the whole of its subject is a question of the true construction of the entire provision in which the word appears. The well-known statement of Lord Watsonin Dilworth v Commissioner of Stamps should not be taken so literally as to reduce the inquiry in a case like the present to an inquiry into the meaning of the word 'includes'. Strictly speaking, that word cannot be equivalent to 'means and includes'. But a provision in which it appears may or may not be enacted as a complete and therefore exclusive statement of what the subject expression includes. A provision which is of that character has the same effect as if "means" had been the verb instead of 'includes'. The question whether a particular provision is exclusive although 'includes' is the only verb employed is therefore a question of the intention to be gathered from the provision as a whole."
In this case, the Tribunal did not, as the applicants contend, approach the issue for its determination on the basis that the word "including" in par(viii) imposed an exhaustive limitation on what were destinations of key interest. What the Tribunal said in par12 of its decision is that the "provision indicates the nature and type of destinations which are considered to be destinations of key interest to visitors". In par13, the Tribunal said of the examples listed in par(viii) that they "provide a measure by which signs for such businesses can be considered to be exempt." In my view, the Scheme having adopted an expression of wide ambit in par(viii) to identify the destinations referred to, that is, "destinations of key interest to visitors", it then listed examples of what was referred to in order to give a guide to what was meant by that expression. In doing so it did not purport to lay down an exhaustive definition of that expression. As can be seen from the example, "Visitor radio", the list was intended to be both illustrative and expansive. Had that example not been listed, it is inconceivable that anyone would have envisaged that it was intended that "Visitor radio" was a destination of key interest to visitors in respect of which signs might be erected indicating the direction and distance of that, so described, destination. The Tribunal paid regard to the list of examples in order to determine whether Grandvewe Cheeses fitted within one of the examples or was of a like nature. This approach was not erroneous and did not involve the Tribunal taking into account an irrelevant consideration as asserted by this ground.
Ground 5 is:
"5The Decision involved an improper exercise of the power conferred by the enactment under which the decision is proposed to be made (Section 17(2)(e) of the Judicial Review Act 2000).
Particulars
The Tribunal took into consideration an irrelevant consideration in the exercise of its power, namely 'the ramifications of a sign being exempt from planning approval and also compliance with the Tasmanian Roadside Signs Manual (2001)'."
This ground relates to the last sentence in par12 of the Tribunal's decision. That sentence refers to pars22 and 23 of the Tribunal's earlier decision. Those paragraphs are as follows:
"22 If the Tribunal accepts Mr Fleming QC's submission, the result is that the sign is not subject to any controls whatsoever. It would be exempt from the Scheme standards set out in Schedule 8 and would not require compliance with the Manual standards in the absence of it having been determined or declared an attraction of State significance by the Chief Executive of Tourism.
23 The Tribunal finds it hard to accept that this is the intended or an acceptable outcome. It is clearly stated in the introduction to the Manual that one of the intents is to provide a consistent approach with respect to tourism signage by controlling and utilizing a set of principles and standards to minimize confusion and maximize effectiveness without compromising road safety. This is similar to the objective of the Scheme signs schedule which lists public safety as well as providing information and ensuring protection of visual amenity and surrounding areas. An outcome where a sign is exempt from any standard particularly in the subject location which abuts a State highway, cannot be the correct or preferred outcome."
By this ground the applicants in substance contended that it was irrelevant to the Tribunal's consideration of the meaning to be given to the phrase "destinations of key interest to visitors" that a broad construction of that phrase would mean that many signs would be exempt from the requirements of planning approval or the need to comply with the Signs Manual. This was the effect of what the Tribunal said in the course of explaining why it was necessary to pay regard to the examples listed in par(viii). It said that if the examples had not been included, all that would be required for a sign to be exempt is that it indicate the direction and distance to a destination of key interest to visitors. It was in this context that the Tribunal referred to the ramifications of a sign being exempt from planning approval and also from compliance with the Signs Manual, and referred to pars22 and 23 of its first decision.
The Scheme, cl 1.2.1(a), coupled with the Land Use Planning and Approvals Act 1993, Schedule 1, Part 2(b), specify that a purpose of the Scheme is to set objectives, policies and controls for the use, development and protection of land. More specifically, the Scheme, Schedule 8.1.1, specifies that its purpose is to ensure the use or development of signs as there detailed. From this it can be seen that, subject to the exemption provided for in cl 4.1(h)(viii), a purpose of the Scheme is to control the development and use of signs. Against this background, it was legitimate for the Tribunal to recognise that a broad rather than a narrow construction of par(viii) would not serve the purposes of the Scheme. As observed in Pearce and Geddes, Statutory Interpretation in Australia, 6th ed, LexisNexis 2006, par2.34, there are numerous cases that demonstrate that courts approach the interpretation of legislation by taking into account the consequences of giving a particular meaning to an enactment. The case most frequently cited in support of this approach is Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, where Mason and Wilson JJ said, at 330:
"The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole. But in performing that task the courts look to the operation of the statute according to its terms and to legitimate aids to construction.
The rules [of construction], as D C Pearce says in Statutory Interpretation, p 14, are no more than rules of common sense, designed to achieve this object."
It was not inappropriate for the Tribunal to advert to the consequences of the adoption of a broad construction of the phrase in question, and by doing so it did not take into account an irrelevant consideration as asserted by this ground.
Ground 7 is:
"7The Decision involved an improper exercise of the power conferred by the enactment under which the decision is proposed to be made (Section 17(2)(e) of the Judicial Review Act 2000).
Particulars
The Tribunal took into consideration an irrelevant consideration in the exercise of its power, namely that more is required for a sign to be exempt under the Scheme than 'for a sign to … indicate the direction and distance to a destination of key interest to visitors'."
This ground relates to the following sentences in par12 of the Tribunal's decision:
"The inclusion of the examples must be given some relevance. If examples had not been so included, all that would be required for a sign to be exempt is that it indicate the direction and distance to a destination of … key interest to visitors."
Subject to the need to construe par(viii) in the context of the Scheme as a whole, it was quite correct to say, as the Tribunal did, that had the examples not been included in that paragraph, all that would have been required for a sign to be exempt was that it indicate the direction and distance to a destination of key interest to visitors. For the reasons I have given when dealing with ground 5, I do not accept that in making this observation the Tribunal took into account an irrelevant consideration.
Ground 10 is:
"10The Decision involved an improper exercise of the power conferred by the enactment under which the decision is proposed to be made (Section 17(2)(e) of the Judicial Review Act 2000).
Particulars
The Tribunal failed to take into consideration a relevant consideration in the exercise of its power, namely that Grandvewe Cheeses satisfies the criteria as defined in the Tasmanian Roadsigns Manual (May 2001) for an attraction of State significance."
The contention that the Tribunal failed to take into consideration the fact that Grandvewe Cheeses satisfied the criteria as defined in the Signs Manual for an attraction of State significance is simply not correct. At the conclusion of par13 of its decision, the Tribunal expressly referred to Grandvewe Cheeses having met the criteria listed in the Signs Manual for an attraction of State significance. The criteria contained in that Manual, Part E, cl 3(vi), are set out in par6 of these reasons. They are plainly the minimal requirements that must be satisfied before an attraction may be considered to be of State significance. I am quite unable to construe the clause in a way that means that an attraction must be one of State significance if it satisfies the criteria. In so concluding, I am influenced by the last sentence of par(vi)(b), which recognises the need for a determination to be made as to whether a feature is of State significance. The fact that in this case the determination was for the Tribunal, not the Chief Executive of Tourism Tasmania, is of no consequence.
Another matter of note is that the applicants acknowledge that Grandvewe Cheeses is not a "natural, cultural or historic feature" for the purposes of the Signs Manual Part E, cl 3(vi)(a). They contend however that it is covered by that paragraph as it is a "commercial tourist facility". The Signs Manual, Part E cl 2.1, which is set out in par7 of these reasons, provides that "a commercial tourist facility will be a business whose core activity must be tourism based". On the evidence before the Tribunal it could not have been found that Grandvewe Cheeses' core activity was tourism based. This ground cannot sustain an order of review.
Ground 6 is:
"6The Decision involved an improper exercise of the power conferred by the enactment under which the decision is proposed to be made (Section 17(2)(e) of the Judicial Review Act 2000).
Particulars
The Tribunal took into consideration an irrelevant consideration in the exercise of its power, namely whether or not Grandvewe Cheeses was 'a declared attraction of State significance'."
In par13 of its decision the Tribunal noted that Grandvewe Cheeses was not a declared attraction of State significance. This was not an irrelevant consideration. The converse was highly relevant. Had Grandvewe Cheeses been included in the list of current attractions of State significance contained in the Signs Manual Part E, cl 2.4(vi)(c), or had there been evidence that it had been determined by the Chief Executive of Tourism Tasmania that it was an attraction of State significance, there would have been no argument as to the exemption of the sign pursuant to the Scheme, cl 4.1(h)(viii). It was because Grandvewe Cheeses had not been declared an attraction of State significance that it was necessary for the Tribunal to assess whether it was such an attraction. I do not accept that in noting that Grandvewe Cheeses was not a declared attraction of State significance the Tribunal took into account an irrelevant consideration.
Grounds 9 and 12 are:
"9The Decision involved an improper exercise of the power conferred by the enactment under which the decision is proposed to be made (Section 17(2)(e) of the Judicial Review Act 2000).
Particulars
The tribunal failed to take into consideration a relevant consideration in the exercise of its power, namely that there was no evidence before the Tribunal that Grandvewe Cheeses is not a destination of 'key interest to visitors'.
…
12There was no evidence or other material to justify the making of the decision (Section 17(2)(h) of the Judicial Review Act 2000).
Particulars
There was no evidence to support that finding of the Tribunal that Grandvewe Cheeses Pty Ltd was not a 'destination of key interest' pursuant to Clause 4.1(h)(viii) of the Scheme."
I was not addressed on which party before the Tribunal bore the onus of proof on the issue as to whether Grandvewe Cheeses was a destination of key interest to visitors within the meaning of the Scheme, cl 4.1(h)(viii). On one view, the exception in question attracts the common law approach that where a statute prohibits conduct save in the case of persons who are excepted, the onus is on a person who claims to be entitled to that exception to establish that entitlement. See R v Edwards [1975] 1 QB 27 at 39 – 40, Attorney-General's Reference No 1 of 1989, R v Brown (1990) Tas R 46 at 62, Director of Public Prosecutions v United Telecasters Sydney Ltd (1990) 168 CLR 594 at 601, and Chugg v Pacific Dunlop (1970) 170 CLR 249 at 257. The common law applies in this case as the Evidence Act 2001 does not apply to proceedings before the Tribunal. In consequence, that Act, s142A(2), which is to the effect that a defendant who relies on an exception bears the onus of proof on that issue, does not apply to these proceedings. The Evidence Act only applies to proceedings in a Tasmanian court, ss3 and 4(1). Whilst that term is given an expanded meaning, its scope is confined to "any person or body (other than a court) that in exercising a function under the law of the State, is required to apply the laws of evidence". This does not cover the Tribunal as it is not bound by the rules of evidence. See the Resource Management and Planning Appeals Tribunal Act 1993, s16(1)(c), and see also the Evidence Act, s8.
If the onus of proof in relation to the exception contained in par(viii) was on the applicants, then the particulars to these grounds mis-state the issue that fell to be determined. The issue would be whether the applicants had established that Grandvewe Cheeses was a destination of key interest to visitors. In that event, the drafting of the particulars to ground 12 would also be flawed in the manner identified in the last two sentences of the following passage from Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156, where Glass JA (whose reasons for decision were agreed with by Samuels JA), said:
"To the legally uninitiated there is a spurious validity in a submission that it was not open to the judge to find that the applicant was not injured since there was no evidence to that effect. If a respondent employer can argue a no evidence point, why cannot the applicant worker? The answer is, of course, that alleged insufficiency of evidence to prove a fact always raises a question of law but alleged sufficiency of evidence to the point of conclusiveness cannot, since it assumes that the evidence has been accepted. The party not bearing the onus puts an argument, which assumes against himself that the evidence has been accepted, but submits that it is not capable of establishing the fact. The party saddled with the onus on the other hand cannot assume in his favour that the evidence is or ought to be accepted since this trenches upon the liberty of the tribunal of fact to accept or reject any evidence. Finally, the burden of proof to which the applicant is subjected cannot be masked by the use of double negatives. A purported ground of appeal which submits that there was no evidence that or it was not open to find that the applicant was not injured constitutes a futile attempt to convert a question of fact into a question of law by inverting the onus of proof."
I put the concerns I have referable to the onus of proof aside, as they were not addressed by the Tribunal or in the hearing before me and as, in par14 of its decision, the Tribunal did find that Grandvewe Cheeses was not a destination of key interest to visitors.
For the purposes of ground 12, which relies on the Judicial Review Act, s17(2)(h), it falls to the applicants to do more than point to an absence of evidence that Grandvewe Cheeses was not a destination of key interest to visitors. This is because the Judicial Review Act relevantly provides:
"17 Application for review of decision
(1) A person who is aggrieved by a decision to which this Act applies may apply to the Court for an order of review relating to the decision.
(2) The application may be made 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;
…
21 Decisions without justification – establishing ground
The ground mentioned in section 17(2)(h) … is taken not to be made out —
(a) unless —
(i)the person who made, or proposed to make, the decision was required by law to reach the decision only if a particular matter was or is established; and
(ii)there was no evidence or other material (including facts of which the person was or is entitled to take notice) from which the person could or can reasonably be satisfied that the matter was or is established; or
(b) unless —
(i)the person who made, or proposes to make, the decision based, or proposes to base, the decision on the existence of a particular fact; and
(ii)the fact did not or does not exist."
For relevant purposes, the Judicial Review Act, s17(2)(h), is in the same terms as the Administrative Decisions (Judicial Review) Act 1977 (C'th) ("the AD(JR) Act"), s5(1)(h), and the Judicial Review Act, s21, is in the same terms as the AD(JR) Act, s5(3). As to these provisions, Black CJ (agreed with by Spender and Gummow JJ) said in Curragh Queensland Mining Limited v Daniel and Others (1992) 34 FCR 212, at 223:
"It remains to consider the concluding words of s5(3)(b): 'and that fact did not exist'. Since the ground in s5(1)(h) is a 'no evidence' ground, and since s5(3)(b) requires, in that context, that it be established that the person who made the decision based the decision on the existence of a particular fact as a requirement for making out the ground, the concluding words 'and that fact did not exist' must be taken to impose an additional requirement. In Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 13 FCR 511 at 519-521 Wilcox J examined the history and meaning of s5(3)(b). His Honour observed that whilst it might have been thought appropriate to provide for an administrative decision to be struck down where the decision was based upon the assumption of a particular fact of which the decision-maker had no evidence, a deliberate decision was made in drafting the ADJR Act to restrict more tightly the operation of the ground. By reference to the background to the provision his Honour considered that it was understandable that, when Parliament turned to non-jurisdictional findings of fact in s5(3)(b), it required the applicant for review to show more than that there was no evidence before the decision-maker of the fact found, or assumed, as the basis of the decision. The applicant was required to negative the fact and, as his Honour noted, this may constitute a heavy burden, especially where the facts are obscure. But the language of s5(3)(b) shows that its concluding words do impose an additional requirement and the history of the section, discussed by Wilcox J in Television Capricornia, tends to confirm that this is so."
Ground 9 relies on the Judicial Review Act, s17(2)(e), and as I will also be referring to s17(2)(f), I will set out each of these provisions, together with the portion of s20 that is relevant for the purposes of this ground.
"17 Application for review of decision
…
(2)The application may be made on any one or more of the following grounds:
(e) that the making of the decision was an improper exercise of the power conferred by the enactment under which it was purported to be made;
(f) that the decision involved an error of law (whether or not the error appears on the record of the decision);
…
20Meaning of 'improper exercise of power'
In section 17(2)(e) … a reference to an improper exercise of a power is taken to include —
…
(b) failing to take a relevant consideration into account in the exercise of a power; … ".
For relevant purposes, s17(2)(e) and (f) are in the same terms as the AD(JR) Act, s5(1)(e) and (f). As to relying on s5(1)(f) to substantiate a "no evidence" ground, in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, Mason CJ (agreed with by Brennan and Deane JJ) said, at 358:
"As the respondents do not seek to bring this case within s5(3)(a) or (b), the ground of review in s5(1)(h) has no direct application here. But the presence of s5(3) tells against an expansive interpretation of s5(1)(f). Indeed, it might be argued from the presence of s5(1)(h) and (3) that they constitute a definitive and exhaustive statement of the 'no evidence' ground of review for the purpose of s5, thereby excluding such a ground from the concept of 'error of law' in s5(1)(f). However, such a result would verge upon the extreme and would pay scant attention to the traditional common law principle that an absence of evidence to sustain a finding or inference of fact gives rise to an error of law. The better view, one which seeks to harmonize the two grounds of review, is to treat 'error of law' in s5(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 s5(1)(h), as elucidated in s5(3), as expanding that ground of review in the applications for which pars (a) and (b) of s5(3) make provision."
So, where a "no evidence" ground is advanced under the guise of s17(2)(f), the error of law ground, traditional common law principles apply and a complete absence of evidence must be established in order to substantiate the ground. By parity of reasoning, a similar approach should be taken to a "no evidence" ground advanced under cover of s17(2)(e), coupled with s20(b). It is to be remembered that the traditional approach to a "no evidence" ground is that there must simply be no evidence. Some evidence is sufficient to defeat the ground, notwithstanding that the finding is unconvincing, or that there is considerable contrary evidence. Being wrong or illogical is not sufficient. See Azzopardi v Tasman UEB Industries Ltd (supra), at 155, Australian Broadcasting Tribunal v Bond (supra), at 355, Lark v Nolan [2006] TASSC 12, pars35 – 37, and Keach v Minister for Health and Human Services[2006] TASSC 28, par23. As to illogical reasoning, see NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235, pars22 – 29, and the many authorities cited in Wecker v Secretary, Department of Education, Science and Training [2008] FCAFC 108, pars98 and 99. There was evidence before the Tribunal that Grandvewe Cheeses did not possess the characteristics of any of the examples listed in the Scheme, cl 4.1(h)(viii), and was a relatively small scale private business. In the light of this evidence, the Tribunal found that Grandvewe Cheeses was not a destination of key interest to visitors. Accordingly, this was not a case where there was no evidence on which the Tribunal based its finding. It is not to the point that others might have reached a different conclusion, or that it might be argued that the finding was erroneous or illogical in the light of all the evidence. These grounds do not provide a sustainable basis for an order of review.
The application is dismissed.
0
11
1