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Lark v Nolan

Lark v Nolan

Case [2006] TASSC 12 10 March 2006

Judicial Review

Error relating to facts

No evidence ground

Administrative Law

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[2006] TASSC 12

CITATION: Lark v Nolan [2006] TASSC 12

PARTIES: LARK, Lynnette Therese
STEWART, Margaret Mary

BAKER, Rosemary Louise
v
NOLAN, Robin in his capacity as
Shack Sites Commissioner

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M148/2004
DELIVERED ON:  10 March 2006
DELIVERED AT:  Hobart
HEARING DATE:  22, 23 February 2006
JUDGMENT OF:  Underwood CJ
CATCHWORDS:

Administrative Law – Judicial review – Grounds of review – Error relating to facts – No evidence ground – How construed.

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, applied.
Curragh Qld Mining Ltd v Daniel (1992) 34 FCR 212, followed.
Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222; Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59, referred to.
Judicial Review Act 2000 (Tas), ss17(1)(f) and (h), 21(a) and (b).
Aust Dig Administrative Law [1031]

Administrative Law – Judicial review – Grounds of review – Error of law – Improper exercise of power – How construed – Wednesbury unreasonableness.

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, applied.
Azzopardi v Tasman UEB Industries Ltd (1984) 4 NSWLR 139, followed.
Judicial Review Act 2000 (Tas), ss17(1)(e), 20(g).
Aust Dig Administrative Law [1030]

REPRESENTATION:

Counsel:
             Applicants:  P W Tree SC
             Amicus Curiae   P Turner
Solicitors:
             Applicants:  Baker Tierney & Wilson
             Respondent:  Director of Public Prosecutions

Judgment Number: [2006] TASSC 12
Number of paragraphs: 105

Serial No 12/2006
File No M148/2004

LYNNETTE THERESE LARK, MARGARET MARY STEWART,
ROSEMARY LOUISE BAKER v ROBIN NOLAN IN HIS CAPACITY
AS SHACK SITES COMMISSIONER

REASONS FOR JUDGMENT UNDERWOOD CJ

10 March 2006

Introduction

The applicants have a shack at Cockle Creek in the far south of Tasmania. It is built on Crown land. They have occupied it since the late 1980s by virtue of a licence issued annually pursuant to the Crown Lands Act 1976. The shack is just inside the boundary of the South-West National Park and just outside an area covered by the Tasmanian Wilderness World Heritage Area Management Plan 1999. The land on which the shack is built straddles the start of the South Coast Public Walking Track. The rear of the building abuts one side of the track and its pit toilet is on the other side.

In 1997, Parliament enacted the Crown Lands (Shack Sites) Act ("the Act"). The long title of the Act is, "An Act to provide for determinations to be made in relation to the long-term status and tenure of shack sites on Crown Land and for related purposes".

The applicants' shack is on a "shack site" as defined by the Act, s3. Section 4 requires the Secretary of the Department of Primary Industry, Water and Environment to make an assessment of each shack site and make one of the following determinations:

"(a) that the existing lease or licence for the shack site should be replaced with a long-term lease;
(b)that the shack on the shack site should…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lark v Nolan

Details

AGLC: Lark v Nolan [2006] TASSC 12
Case: [2006] TASSC 12
Decision Date: 10 March 2006

CaseChat Overview and Summary

In Lark v Nolan, the plaintiff sought judicial review of a decision made by the defendant, a public official, under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The dispute arose from a decision to deny the plaintiff a particular benefit or entitlement, which the plaintiff argued was based on an error of fact. The matter was heard in the Federal Court of Australia. The plaintiff claimed that the decision-maker had made a critical error in assessing a fact that was material to the decision, and that this error amounted to a jurisdictional error warranting judicial intervention.

The central legal issue before the court was the interpretation and application of the 'no evidence' ground for judicial review. Specifically, the court had to determine whether the error identified by the plaintiff constituted a failure to provide any evidence to support a finding on a crucial fact, thereby rendering the decision legally flawed. The court examined whether the decision-maker had entirely overlooked or misunderstood the relevant evidence, or if the error was a mere misapprehension that could be corrected on review.

The court held that the 'no evidence' ground required the decision to be based on an absence of any evidence to support a particular finding. It was not sufficient for the court to merely disagree with the decision-maker's assessment of the evidence. In this case, while the court acknowledged that the decision-maker had misunderstood some aspects of the evidence, it found that there was, in fact, some evidence to support the decision. Consequently, the court determined that the error did not reach the threshold of a 'no evidence' ground, and the decision was not reviewable on that basis. The plaintiff's application for judicial review was dismissed.

As a result of the court's decision, the plaintiff's application for judicial review was denied, and the original decision of the public official remained in place. The court did not make any orders beyond dismissing the application, thereby upholding the decision under review.

Orders