- Disposition of the threshold issue
97 The Commission was right to accept that a finding that Ms Berejiklian had a private interest in, and was influenced by a desire to, maintain or advance her close personal relationship with Mr Maguire was necessary for its conclusions as to partial conduct. The relevant findings are at [11.594] with respect to ACTA, and [12.314] with respect to RCM Stage 2, and are in terms that the applicant exercised her official functions "influenced by the existence of her close personal relationship with Mr Maguire and by a desire on her part to advance or maintain that relationship".
98 In relation to its conclusion as to these breaches of's 8(1)(b), the Commission also found concerning the ACTA funding that the applicant had "consciously preferred" Mr Maguire for an "unacceptable reason" ([11.587]), and concerning the RCM Stage 2 funding that the applicant had "consciously preferred Mr Maguire" ([12.313]). Each of those findings is in substance the same as the first of the findings referred to in the applicant's written submissions (see [91] above).
99 However, as concerns the breach of public trust and's 11 findings, notwithstanding that the applicant has pointed to further findings in support of her submission that the asserted error raised by this ground of review is also material to the "ultimate" findings, she has not sought to amend the ground as formulated. In these circumstances, it is not strictly necessary to consider the additional finding referred to in [92] above. However, in what follows the Court has considered whether that further finding was open on the evidence.
Relevant principles for the "no evidence" ground
100 Properly understood, the "no evidence" ground is that there is no evidentiary material which could rationally affect the decision-maker's assessment of the probability of the relevant fact or facts in issue (see D'Amore v Independent Commission Against Corruption [2013] NSWCA 187 at [235] (Basten JA, Bathurst CJ agreeing), which in turn cites the earlier decision in Amaba Pty Ltd v Booth [2010] NSWCA 344 at [22]–[24] (Basten JA, Beazley and Giles JJA agreeing)). A finding of fact when there is "no evidence" in support of that finding is an error of law (Kostas at [91]).
101 As to whether there is evidence to "support" a particular finding, Basten JA makes the following observations in Booth at [23]–[24] in a passage cited with approval in Ballina Shire Council v Knapp [2019] NSWCA 146 at [38] and Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54 at [19]:
[23] Implicit in the statement that there is no evidence to 'support' a particular finding, is the characterisation of a relationship between the evidence and the finding. It is the same relationship inherent in the concept of 'relevance', on which the laws of evidence depend. That relationship depends on a process of reasoning which must be logical or rational. Thus, evidence is relevant which, if accepted, 'could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding': Evidence Act 1995 (NSW), s 55(1). As explained by Gleeson CJ, Heydon and Crennan JJ in Washer v Western Australia [2007] HCA 48; 234 CLR 492 at [5]:
