Anghel v Minister for Transport (No 1) [1993] QSC 359 [1995] 1 Qd R 465

_,-...:::::=::=::=::=::=::~::::....--------- i I I 1 TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies .thereof must not be made or sold without the written authority of the Director, State Reportmg Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION \_J .. DERRINGTON J No 627 of 1993 ' , SOUTH EAST BRISBANE PROGRESS ASSOCIATION First Applicant and GRETA DOROTHEA ANGHEL Second Applicant '( __ _) and ANTHONY JAMES BERGLAS Third Applicant and JOHN CRISPIN BOULSOVER Fourth Applicant and TIMOTHY HENRI JEREMY FLORIN Fifth Applicant and ALBERT HECTOR NORD Sixth Applicant and JOHN EDGAR NORTON Seventh Applicant and JAMES BRODIE PROSS Eighth Applicant ""';;-~- ···l"'l401th-F:•lo•or•,•T•h•e•L•aw-C•o•ur.ts•,•G•e•or•g•e•S•tre•e•t,•B•r•is.ba•n•e, 1 ;_Q•.•4•0•00-Te•le•p•ho•n•e.•· ~~0~7)~2~2':-7~43~6:0•.F';:a~c~sim~ile~:~(0:7~) -:'22~7~5.:5.~'32;---- -- 1 of 22 -- and ALICE SIMPSON and NOEL SMITH and BARBARA FRANCES THORN and VERNON JOHN WILLIAMS and THE MINISTER OF TRANSPORT AND THE MINISTER ASSISTINGTHE PREMIER FOR ECONOMIC AND TRADE DEVELOPMENT BRISBANE .• DATE 05/11/93 .• JUDGMENT 2 Ninth Applicant Tenth Applicant 10 Eleventh Applicant Twelfth Applicant Respondent 30 40 50 60 -- 2 of 22 -- 051193 KHW (Derrington J) HIS HONOUR: The applicants are those who are the applicants in the original proceeding. I explain that because there are two subordinate applications, one by each side, and so when I use the word "applicants" it relates to the original applicants. The respondent is of course the Minister. It is ordered that the applicants' application for judicial review be· dismissed. The applicants' application as to costs is dismissed. The respondent is to pay the costs of all applicants, except the first applicant, in respect of the original application and of these applications. In other words, it was a reasonable application by persons who are very ', () seriously disadvantaged. It was a reasonable question to be decided and in the circumstances they should have their costs. ( \ \_) JUDGMENT 3 10 20 30 40 50 60 -- 3 of 22 -- ( ( c IN THE SUPREME COURT OF QUEENSLAND No. 627 of 1993 Brisbane [South East Brisbane Progress Assoc & Ors v. Minister for Transport] BETWEEN: AND: AND: AND: AND: AND: AND: AND: AND: AND: AND: AND: AND: SOUTH-EAST BRISBANE PROGRESS ASSOCIATION First Applicant GRETA DOROTHEA ANGHEL Second Applicant ANTHONY TAMES BERGLAS Third Applicant I OHN CRI SPIN BOULSOVER Fourth Applicant TIMOTHY HENRI JEREMY FLORIN Fifth Applicant ALBERT HECTOR NORD Sixth Applicant JOHN EDGAR NORTON Seventh Applicant TAMES BRODIE PROSS Eighth Applicant ALICE SIMPSON Ninth Applicant NOEL SMITH Tenth Applicant BARBARA FRANCES THORN Eleventh Applicant VERNON JOHN WILLIAMS Twelfth Applicant MINISTER FOR TRANSPORT AND MINISTER ASSISTING THE PREMIER ON ECONOMIC AND TRADE DEVELOPMENT Respondent JUDGMENT - DERRINGTON I. -- 4 of 22 -- JUDGMENT DELIVERED: 5th day of November 1993 MINUTE OF ORDER: COUNSEL: SOLICITORS: HEARING DATE; Applicants' application for judicial review dismissed. Applicants' application as to costs dismissed. Respondent to pay the costs of all applicants except the first applicant in respect of the original application and of these applications. D. O'Gorman for the Applicants M.O. Plunkett for the Respondent Messrs Peter Channell & Associates for the Applicants Crown Solicitor for the Respondent 1st October 1993 () (_) -- 5 of 22 -- . IN THE SUPREME COURT OF QUEENSLAND No. 627 of 1993 BETWEEN: SOUTH-EAST BRISBANE PROGRESS ASSOCIATION First A:m~licant AND: GRETA DOROTHEA ANGHEL Second A:u:ulicant AND: ANTHONY lAMES BERGLAS Third A:u:ulicant AND: IOHN CRISPIN BOULSOVER ( Fourth A:u:ulicant \ AND: TIMOTHY HENRI IEREMY FLORIN Fifth A:u:ulicant /_.-·- AND:( \ ALBERT HECTOR NORD Sixth A:u:ulicant AND: IOHN EDGAR NORTON Seventh A:u:ulicant AND: lAMES BRODIE PROSS Eighth A:u:ulicant AND: ( ALICE SIMPSON Ninth A:u:ulicant AND: NOEL SMITH c Tenth A:u:ulicant AND: BARBARA FRANCES THORN Eleventh A:u:ulicant AND: VERNON I OHN WILLIAMS Twelfth A:u:ulicant AND: MINISTER FOR TRANSPORT AND MINISTER ASSISTING · THE PREMIER ON ECONOMIC AND TRADE DEVELOPMENT Res:uondent JUDGMENT - DERRINGTON I. judgment delivered the 5th day of November 1993 -- 6 of 22 -- 2 These are ancillary proceedings to an application under the Judicial Review Act 1991 ("the Act") for judicial review of an executive decision of the respondent. The respondent seeks to have the application stayed or dismissed summarily; and the applicants seek a preliminary order that the respondent should pay their costs of the application or alternatively for an order that no future order for costs should be made against them whatever the result. The first applicant concedes that it has no standing in this matter and accordingly its claim must be stayed. However, as the respondent concedes, the other applicants have standing. c It should be mentioned that this matter excites some urgency because of the importance of the project itself and the importance to the applicants of a quick (, answer, even if an adverse one, to their uncertainties. In addition, s.48(2) of the Act requires the Court to try to ensure that any exercise of its power to dismiss or stay the application happens at the earliest appropriate time. This is not a charter for a premature dismissal on insufficient grounds, but it is a command implying some urgency that must be respected to investigate the merits as thoroughly as. the c) material admits in order to reach a decision on the merits if that be possible. The first decision sought to be reviewed is a decision of Cabinet made prior to the commencement of the Act and therefore outside its scope. The applicants did not attempt to sustain this part of their application and accordingly it too must be stayed. The principal proceeding is a claim under s.20 of the Act for judicial review of what is said to be a decision of The Honourable The Minister for Transport expressed in a letter of 17th June 1993 giving approval to the Railway Department to proceed with the construction of a standard gauge railway line to Fisherman Islands Port of Brisbane via a corridor in south-east Brisbane which already carries -- 7 of 22 -- 3 the existing line to the port. This would be expected to increase the present traffic significantly. This project is partly funded by the Commonwealth, which is irrelevant, and partly from State funds appropriated by Parliament, the relevance of which will be seen later. The only basis of the applicants' claim for judicial review is that the Minister's decision was reached partly by reliance upon an environmental Impact Assessment Study ("I.A.S") which is said to have been defective by reason of a gross ( under-estimation of the amount of rail traffic presently using the line and of the number of houses affected. Accordingly, the reasoning goes, the impact after the expected increase in traffic will be so much worse than that predicted in the I.A.S. They claim inter alia that the decision was wrongly thereby limited to a choice which omitted reference to the option of not proceeding with the project at all, but this is somewhat unrealistic, having regard to the size and importance of the total project. However it is still open to them to argue that there may have been some qualification of the decision, and the failure of their first point should not interfere with a scrutiny of the decision in order to determine whether it was reached in accordance with law. Application to Stay or Dismiss The application to stay or dismiss the principal application is made under s.48(1) of the Act. That empowers the Court to make such an order if it considers that: "(a) it would be inappropriate - (i) for proceedings in relation to the application or claim to be continued; or -- 8 of 22 -- 4 (ii) to grant the application or claim; or (b) no reasonable basis for the application or claim is disclosed; or (c) the application or claim is frivolous or vexatious; or (d) the application or claim is an abuse of the process of the Court." The primary contention supporting a stay or dismissal is that the Minister's letter of 17 June 1993 to the Chief Executive Officer of Queensland Rail upon which the applicants rely did not evidence "a decision" within the meaning of the Act, but rather that it was simply a recounting of information. This is plainly wrong. The Minister had considered a number of reports, including the I.A.S. and submissions, and came up with a decision as to whether the project should proceed and what form it should take. The Crown instrumentality, Queensland Rail, could not proceed without his approval, and when he decided to give it then the instrumentality could proceed. The process adopted by the Minister had every mark of a decision and an appropriate effect. In the context of relevantly similar legislation, the meaning of "decision" was found to include any decision of an administrative character: Australian Broadcasting Tribunal v. Bond (1990) 170 C.L.R. 321. The attribution of a wide meaning to it is sympathetic to the obviously remedial nature of the Act as a whole. Referring to his letter to Queensland Rail, the Minister wrote to the fifth applicant in about July 1993, saying: "On the basis of the I.A.S. and subsequent advice from both Commonwealth and State environmental agencies I have decided to approve the construction of the project subject to an implementation of a number of undertakings. Formal approval to proceed with the construction of the project was provided in my letters of 17 June 1993 to the Commonwealth Minister for Transport and Communication and Chief Executive Officer, Queensland Rail, on this matter." {Italics mine) c) -- 9 of 22 -- 5 Very reasonably, this confirms what is obvious, namely, that the letter in question was a manifestation of the decision of the Minister. Clearly the objection cannot succeed on this ground. Alternatively it is argued that it was not "a decision .. made .. under an enactment" within the meaning of paragraph (a) in the definition of "Decision to which this Act applies" in s.4 of the Act which is an element of jurisdiction for judicial. review under the Act. This is readily conceded by the applicants who claim ( instead upon the alternative definition of that phrase contained in paragraph (b) of it where it reads, where relevant, as follows: ( (/ "(b) A decision of an administrative character made .. by, or by an officer or employee of, this State or a State authority .. under a non-statutory scheme or programme involving funds that are provided or obtained (in whole or part) - (i) out of amounts appropriated by Parliament .. " It is here that the State's contribution of funds is relevant. The respondent did not appear to have anticipated this argument. In reply it was argued only that the project for the construction of the line is not a "scheme or programme". The relevant part of the Minister's letter to Queensland Rail reads as ( follows: "As the State and Federal legislative requirements have now been met, Queensland Rail can commence immediately the construction phase of the Standard Gauge Rail Link project. Under the Federal Government's terms of approval for the project, One Nation Funding is conditional on the project adhering to undertakings provided to Senator Bob Collins, Federal Minister for Transport and Communications ... " It was argued that this is a single project whereas the reference in the definition to "a scheme or programme" connoted a repetition of events such as, for -- 10 of 22 -- 6 example, the granting of drought-relief aid to a number of people over a period of time. That could certainly be argued of a programme. However, the reference to a scheme, as distinct from a programme, suggests that whole of the range is intended to be covered between the two. According to the Oxford English Dictionary, a scheme may mean a project (which was the term used by the Minister in his letter to Queensland Rail) or an enterprise, and it is reasonable that this quality of singleness was intended by the expression as distinct from a programme. If it were otherwise there would be a likely tautology, and if a c-~ suitable construction is available which avoids this result, then it is usually to be preferred. Conversely there is no apparent reason from a practical point of view ( 1 why there should be a limitation such as the respondent suggests for the remedy should be just as desirable in the one case as in the other. For these reasons there is no foundation for finding that the project was not -na scheme" within the meaning of the definition, and as some of the funds employed on it will be provided out of amounts appropriated by Parliament, all of the elements (/1 of the definition are met. Consequently the decision is one to which the Act applies and comes within the jurisdiction of the Court invested by the Act. Further, although it is not necessary to go so far, a decision by the Minister was made necessary by s.29(2) of the State Development and Public Works Organisation Act 1971-1981 ("the State Development Act") which requires that: "In considering an application made to it for the granting of approval of a development or in considering the undertaking of works, it is the responsibility of ... the department of the Government of the State .. . or other person or body representing the Crown ... when it appears that the undertaking of such development or works is likely to have major environmental effects, to take such environmental effects into account, and in doing so to have due regard to such policies or administrative arrangements as may be approved from time to time by ,,_,_, ___, _____ --- -- 11 of 22 -- (_ 7 the Minister (in charge of the Act) to the extent that the same are compatible with legislation for the time being in force in the State". There appear to be no "policies or administrative arrangements approved by the Minister" that are relevant here. The Minister was the person representing the Crown, and he was "considering the undertaking of works" by the instrumentality under his control, so he was required by law to take any "major environmental effects" into account. This is hardly surprising in view of the obvious purpose of this Act, and it is precisely what the Minister tried and purported to do. A report was properly obtained and he acted upon it, and his decision appears to be in accord with its contents. However the point that the applicants would make is that it is predicated by this provision that he was required to make a decision whether the matter should proceed for that is the only practical point for requiring his taking the major environmental effects into account. They say that he made the decision but was prevented from taking this factor into account because he was not properly informed of it. The "Policies and Administrative Arrangements" of the State, inter alia, set C_ out procedures for Impact Assessment Studies and reports covering several factors including "definition and analysis of the likely impacts of the development on the environment." This was the procedure adopted by the Minister to inform himself of the major environmental effects of the project. The respondent advanced an argument that the Minister did not come within the description of "Responsible Authority" to whom the Policies and Administrative Arrangements is expressed, in the work itself, to apply. If this is correct, which is questionable, it misses the point. The Minister was required by s.29(2) of the State -- 12 of 22 -- 8 Development Act to take major environmental effects into account, and he chose an I.A.S. under the Arrangements as the aid on which he relied to perform his duty. Its accuracy becomes relevant in this way. Whatever the position, it would not matter whether he was contemplated by the Arrangements as a person to whom they referred, and any difficulty on this point does not detract from the claim of the applicants that in the result his decision did not take the major environmental effect into account as he was required to do by s. 29(2). However, that section also required him, in taking such major environmental (', effects into account, "to have due regard to such policies and administrative arrangements as may be approved from time to time", that is the Arrangements under discussion. As a consequence of those words he is placed in the same position as a Responsible Authority who is referred to in the Arrangements themselves. Very properly the argument for the Minister does not suggest the contrary, and, as it has already been noticed, he acted accordingly when he was making his decision. It might be noticed however that the Arrangements do not require an I.A.S. to () be performed. It leaves it to the authority concerned to decide if one is necessary (s.2.l(f)) but it might be implied that if as in this case it is thought to be necessary, C)J it should be implied that it is required to consider it. It really does not matter if this is right, for the applicants' position does not depend on anything to do with the requirements of the Arrangements; but to the extent that they might have relevance, they fortify that position on this issue. The remaining question is whether there is any reasonable case for judicial review open on the merits because on its face the applicants' case goes only. to the correctness of the decision because of a dispute as to the correctness of a fact considered in the course of making it, whereas it is necessary to attack the validity ·-------- --------- -- 13 of 22 -- 9 or propriety of the decision-making procedure rather than the correctness of the decision: Concord Data Solutions Pty Ltd v. Director-General of Education (unreported S.Ct. of Q. 27.9.93 692/1993). The respondent's application for dismissal under s.48(1}(b) on the ground that there is no reasonable basis of the claim cannot challenge the factual evidence led for the applicants, since on a proceeding of this kind it is inappropriate to determine these issues, and they must be assumed to favour the applicants. This would extend ( to the further conclusion, which cannot and was not tested here because it would need to be investigated in a factual background, namely, whether the error alleged was large enough to constitute a 'fundamental flaw' or whether it would have affected the decision. That does not mean, however, that the facts must be taken further than they actually go, and their significance may be scrutinised. Conversely, almost all the respondent's arguments assumed that the applicants' material was worthless or alternatively that even if it were right it would ( / have had no effect. Regrettably for this reason the arguments advanced on this basis were of little assistance. While acknowledging the restricted nature of the Court's jurisdiction, the applicants argue that the error in the report upon which the decision was based was so fundamental and gross as to constitute a ground for review. Their case is essentially limited to the one point in various forms: that although the Minister took all relevant steps so far as he could by having regard to the I.A.S., because of the "fundamental flaw" in that material his decision did not meet the essential procedural standard required of it at law. Consequently it is said to be reviewable within the meaning of the Act in that - -- 14 of 22 -- 10 (a) the making of the decision was an improper exercise of the relevant power in that it failed to take a relevant consideration into account, that is, one which could have materially affected the decision 1 - ss. 20(2)(e) and 23(b); (b) no reasonable person could so exercise the power - s. 23(g); and (c) the decision involved an error of law - s. 20(2)(b) - which is one facet of the ground of an improper exercise of the statutory power - s.20(2)(d); . (d) there was no evidence or other material to justify the decision '"" s. 20(2)(h). The submissions in support of this were very deeply researched and analysed, ( ' and extracted all possible arguments which could be advanced to support them. It started with t~e proposition, in effect, that because it contained a relevant error, ( ! the I.A.S. was a nullity; and so when the Minister had regard to it that did not count. In effect they say he did not have regard to the major environmental effects as the State Development Act required. Put another way, the argument is that the total ineffectiveness of the I.A.S. meant that not only did the Minister take an irrelevant consideration into account, that is, the erroneous fact contained in the cj! I.A.S. but also that he made his decision while failing to take a relevant consideration into account. Because of this, it is said, there was no real evidence to justify the decision and so it was wrong in law. In order to comply with the State Development Act, it is argued, it was required of the Minister to have regard to the fact that the I.A.S. was flawed even though he did not know it, if he were to have true regard to the environmental impact of the works and the administrative arrangements, which contemplated a competent I.A.S. While it was conceded to be open to him to decide what of its true Minister for Aboriginal Affairs v. Peko Wallsend (1986) 162 C.L.R. 24, 39-42. -- 15 of 22 -- 11 contents was important, and to attribute comparative weight to any factors of importance, it was claimed that he could not do this if he did not, because he could not, take into account that the I.A.S. was flawed or that the true impact was something other than it described. This failure, it is said, amounted to a breach of his duty as to the proper making of his decision 2 for his obligation applies to his treatment of any subsidiary question which was vital to the impugned one 3. In this way they try to avoid the pitfall of challenging the decision on the ( basis of the factual incorrectness of the material on which the decision was made. c However it is precisely the latter that the appellants are seeking to. achieve by a circuitous process. They do this by substituting for the relevant consideration the factual details that form its· content. It is correct, as they submit, that a decision-maker's failure to appreciate the relevance of a factor that is required to be taken into account will vitiate the decision, for then there will have been a failure to take it into account 4. But of () course that is not the position here. However, they obviously argue by analogy that if the decision-maker's decision is vitiated by the absence, in effect, of the relevant ( factor from the decision for one reason, then the same result obtains if it is absent for another reason. Attractive as the logic of this may seem, it does not succeed because the former is the fault of the decision-maker in the making of the decision and the latter relates to the correctness of the material without any reference to the 2 Ibid. at 39; Sean Investments Pty Ltd v. McKellar (1981) 38 A.L.R. 363, 375. 3 Videto v. Minister for Immigration & Ethnic Affairs (1985) 8 F.C.R. 167, 177 4 Donnelly v. A.T.C. (1984) 6 A.L.D. 134. -- 16 of 22 -- \ 12 process of the decision. What was relevant to the Minister's decision was the environmental impact of the works, or, put another way, the I.A.S., and he did have regard to that subject, even if, as it is assumed for present purposes, the details of what he had regard to werewrong. For the same reason any such notional error in the facts does not mean that the decision for which they were used had regard to an improper consideration in the sense that it was immaterial to the topic. The position that may obtain where for some reason the material is of such a nature or quality as to be deprived of any true () identity as such will be considered under a more appropriate head. The simple conclusion is that even if he had been misinformed as to the (') extent of the impact, the Minister knew the relevance of the factor of impact and took it into account. The challenge is only as to a factual matter, and the court is not given the jurisdiction to review executive decisions on such a broad range. The next and cognate ground is that the decision was an improper exercise of power, that is, that it was so unreasonable that no person could properly have made () it 5. This applies to factual views of the decision-maker leading up to the exercise of the power 6, and it extends to facts supplied by others. To elevate an error, even a serious error, of a reporter of fact along the way towards a decision into a ground for the intervention by the Court into the decision- making process is again to use circuitous means of extending the jurisdiction which was not intended by the Act and is contrary to the limitations that form part of its 5 Western Television Ltd v. A.B.T.(l986) 12 F.C.R. 414, 434; McPhee v. Minister for Immigration & Ethnic Affairs (1988) 16 A.L.D. 77, 82; McVergh v. Willara Pty Ltd(l984) 6 F.C.R. 578, 596-597 6 Dotsongjarus v. Minister for Immigration & Ethnic Affairs (1990) 21 A.L.D. 139, 140- 141 -- 17 of 22 -- 13 purpose. This ground is justified only when something more than mere error of a fact used by a decision-maker is alleged and that is not the case here. The statutory ground for review, when referring to reasonableness, is directed at the exercise of the power, and not to incidental issues of fact. In the light of the evidence, it cannot be said that on the evidence before the Minister this decision could not have been reached by a reasonable person, whichever version of the disputed fact is adopted. c Again it is essential to keep in mind the focus of the enquiry, which is in the decision-making process. If on the evidence and materials before him, including c/ facts provided by others, no reasonable person could have reached the decision made in this case, then there would be grounds for review, for the process would have been defective. But this does not apply where the decision is perfectly reasonable on the evidence and materials available. The next ground argued is that there was no evidence or other material to ( ; justify the making of the decision: s.20(2)(h). Obviously the Minister did have the evidence of the report which included the disputed material and so prima facie has l satisfied this test which, incidentally, manifests the tenor of the Act as a whole. ' The Minister's decision, which is the essential point of reference, was graced with the support of the evidence contained in the I.A.S., so there cannot be said to have been "no evidence or other material to justify the making of the decision." If there were fraud or some other defect of such a nature and quality as to condemn the "evidence" to lose the status of evidence, then the applicants' position would be arguable; but this does not occur simply because the subject matter is important or even essential to the decision. In effect they have tried to equate the importance of the subject matter with the nature of the flaw, and this is wrong. The -- 18 of 22 -- 14 limits that restrain judicial review of error of fact, as distinct from the absence of evidence of fact, as considered by Mason CJ in Australian Broadcasting Tribunal v. Bond (supra) at 358, cannot so easily be avoided. If this argument were acceded to, it means that such vulnerability to review would extend to alleged factual error in every case where the error was said to relate to a fact relevant to the decision. This is clearly distinct from the case where there is no evidence at all to support the fact, which amounts to a matter of law and which is a specific ground of review under s.20(2)(h) of the Act: See Flick (' 1 on Federal Administrative Law V.1 paras. 3159-3162, 3165. However, the applicants invoke s.24 of the Act which inter alia provides that (- 1 this ground is made out only if it is proved that the decision-maker based the decision on the existence of a particular fact and that fact did not exist. It is · possible that their argument tries to use this provision, which places a restrictive requirement on the invocation of s.20(2)(h), as a substitute for that provision, saying in effect that if s.24 can be established then the principal ground is made out. That is not so. The effect of s.24 is that not only must the applicants show that there was no evidence or other material to justify the making of the decision, but in addition they must show that the Minister relied on a fact which was non- existent. The issue of fact which they would promote as an arguable one in order to defeat the claim for dismissal only becomes relevant where there is no evidence or material to justify the decision in the first place. If that were established, it would not be a sufficient ground to review the decision unless it were also established that the terms of s.24 were met: see Curragh Queensland Mining Ltd v. Daniel (1992) 34 F.C.R. 212 at 221. . (J -- 19 of 22 -- ! ' ( c\ 15 The manifest existence of evidence in the form of the I.A.S., which was available to the Minister and with which his decision is consistent, deprives the applicants of the first step in their claim, so they cannot now raise a possibly-triable issue as an answer to the defence when that issue will not arise. Therefore this point must fail also. It is of value to recognise that again, the primary focus of the enquiry as to jurisdiction goes .to the propriety in the making of the decision, so that if there is evidence to support it, the evidence is not reviewable except in special cases. It might be remarked that the respondent's discussion of s.24 does not address that part of it on which the applicants rely, so there is no point in discussing it as the two parts are in the disjunctive. The final ground advanced is that by reason of the fundamental flaw in the I.A.S. the decision is affected by an of error. of law. This proposition is supported by argument that a decision based on error as to a fact which has no evidence to support it is an error of law; and the same applies to the drawing of inferences. This however is another form of the proposals discountenanced above in various other forms. Again it is just now shown that the decision had no evidence to support it for it was supported by the evidence contained in the I.A.S. As it is the decision which is the subject of scrutiny, for it would be a wrongful exercise of the power to make a decision without evidence or material to support it, this scrutiny does not, except in special cases, extend to any evidence which is there to support the decision. For technical propriety although it is not material in this case it should also be pointed out that evidence is not necessary if there 'is other material' to support the decision. This could consist of the decision-maker's knowledge outside -- 20 of 22 -- 16 the evidence. However, because there was evidence of the subject before the Minister, and its correctness is not relevant, the point fails. In the result, the applicants do not have a case in respect of any of the grounds on which the court may review the decision, even if their allegations are assumed to be correct. Accordingly the application should be dismissed. There are two consequential matters which should be mentioned as to the suitable course of this matter had the above result been to the contrary. First, there should have been directions designed to limit the application to the ( 1 determination of two issues - (a) whether the I.A.S. was wrong in the relevant information, and (b) whether it would have made any, and what, difference to the decision. This step would have been agitated by the limited nature of the complaint and its seemingly relative unimportance to the decision 7, and by the obvious need for urgency. Secondly, there should have been directions designed to determine those issues in the quickest and most convenient way and without elaboration. Application for Costs Order This is now otiose but it is convenient to discuss it briefly. The basis of the applicants' claims is that they are ordinary citizens of no great wealth whose peaceful occupation of their homes is to be interfered with by a public project of considerable magnitude, and accordingly that they should be funded in the pursuit of their remedies. At least, they say that they should have been enabled to proceed further without fear of being put in jeopardy of a substantial order for costs against them~ 7 A.B.T. v. Bond (supra); Sinclair v. Maryborough Mining Warden (1975) 132 C.L.R. 473 (l (_l c) -- 21 of 22 -- 17 Even if it were still open the application would have been premature. While ordinarily a matter of this kind would attract a suitable order to protect ordinary citizens who were testing executive action that may have interfered with their peace and comfort, it would have been impossible at this stage to say whether the claim has any merit in substance and it would have been difficult to confirm its validity on a technical jurisdictional basis. Further, there would have. been some danger in providing premature protection relating to costs to parties who have an ( interest in delaying the executive action under challenge. ( c Had the main issue still been live it would have been better to defer this question until it could have been seen whether the applicants proceeded in a reasonable and expeditious way and with arguable merit. The application would have been adjourned to a date to be fixed with liberty to apply. In the circumstances as they now exist it is possible to say that the application thus far was reasonable because of the difficult issues of law involved and so for the reasons explained the surviving applicants should have their costs. Orders It is ordered that the applicants' application for judicial review is dismissed. The applicants' application as to costs is dismissed. The respondent is to pay the costs of all applicants except the first applicant in respect of the original application and of these applications. -- 22 of 22 --