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Rule of law: No evidence remains an error of law

Kostas v HIA Insurance Services Pty Limited [2010] HCA 32

Today, the right of appeal to a higher court is often limited to questions of law. This limitation is usually placed on appeals from decisions of inferior or statutory bodies other than a court of law. Courts of law in WA include the Supreme Court, District Court, and the Magistrates Court.

In the above case, the appellant Mr and Mrs Kostas, had been fighting with their builder for 10 years over a contractual dispute. In NSW, the Consumer, Trader and Tenancy Tribunal found, without any evidence, that the builder had properly given notice of claims for extensions of time. It has been long established that if a decision is made without any evidence to support it, that decision is an error of law, not fact. However the NSW Court of Appeal found that, on the language used in the relevant statute constituting the said Tribunal, a finding without evidence was not an error of law.

The High Court unanimously affirmed that, not withstanding niceties about the statutory language, whether there was no evidence to support a factual finding is a question of law, not a question of fact. The Tribunal's factual finding in this case, that the builder had served the two relevant claims for extension of time, necessarily depended upon its first accepting that there was evidence to support the finding. The court referred to the decision of Dixon CJ in Gurnett v The Macquarie Stevedoring Co Pty Ltd [No 2][126] where his Honour said:
        "in the legal dichotomy between questions of fact and questions of law we place under the latter head a question whether there is sufficient evidence to submit to a jury in support of a cause of action. That is because it is a question for the court to decide and not for a tribunal of fact."

Thank goodness for our High Court. Today our lives are increasingly governed by statutory tribunals whose decisions are usually unappealable except on questions of law. Our State Administrative Tribunal (SAT) is just one example. Without a right of appeal we become ruled more by people than by law. This decision is a significant step against the encroachment of the State over our lives.

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