Bisley Investment Corporation v Australian Broadcasting Tribunal

[1982] FCA 58

Re: BISLEY INVESTMENT CORPORATION LIMITED and LYTONA PTY. LIMITED
And: THE AUSTRALIAN BROADCASTING TRIBUNAL and COUNTRY TELEVISION SERVICES
LTD.
No. G139 of 1981
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Lockhart J.
Sheppard J.
Morling J.

CATCHWORDS

Administrative Law - Broadcasting and Television Act 1942 - ownership and control of television and broadcasting stations and licences - applicants acquire shareholdings requiring Broadcasting Tribunal's approval pursuant to ss. 90J, 92F of the Act - consideration of meaning of "control" in the context of "prescribed interests" under the Act - whether applicants bear any onus of proof - whether acquisition of "prescribed interest" prima facie contrary to public interest - whether possibility of control of a company holding a licence a relevant field of inquiry - whether Administrative Appeals Tribunal's judgment included findings on material questions of fact or references to the evidence on which those findings were based - whether relevant to have regard to contraventions of the Act by the applicants.

Broadcasting and Television Act 1942 (Cth.) ss. 90 - 92KA.

Administrative Appeals Tribunal Act 1974 (Cth.) s. 43 (2)

HEARING

SYDNEY

#DATE 28:4:1982

ORDER

1. The appeal be allowed.

2. The matter be remitted to the Administrative Appeals Tribunal for rehearing.

3. The second respondent, Country Television Services Limited pay the appellants' costs of the appeal. Otherwise no order as to the costs of the appeal.

JUDGE1

This appeal involves consideration of the labyrinthine and somewhat tortuous provisions of ss. 90-92KA of the Broadcasting and Television Act 1942 ("the Act") which relate to the ownership and control of broadcasting and television stations and of commercial broadcasting and television licences.

A brief reference at this stage to some sections of the Act will facilitate an understanding of the case.

Sections 90-92KA define the meaning of "control" of broadcasting and television stations and of licences. The sections also attempt, by tracing controlling interests through chains of shareholdings and series of companies, to defeat various schemes devised and employed by people desirous of acquiring interests in a plurality of stations and anxious to avoid the provisions of the Act which limit the number of broadcasting and television stations that may be controlled by any one person or persons in the one interest.

The particular sections of the Act most directly involved in this appeal are ss. 90J and 92F relating respectively to broadcasting and television licences. There are few differences between sections 90 to 90R dealing with broadcasting stations and sections 91 to 92KA relating to television stations; but those few differences are important and I shall refer later to one of them which is material to the questions involved in this appeal.

Section 92F (s. 90J broadcasting licences) deals with changes in the ownership of shares in a company holding a licence and in a company holding a shareholding interest in such a company, as a result of which a person acquires a "prescribed interest" in a commercial television licence or an interest in excess of a "prescribed interest".

Where a transaction takes place whereby a person becomes the holder of a "prescribed interest" in a licence, he may apply to the Broadcasting Tribunal for approval of the transaction and it may grant or refuse approval: s. 92F (1) and (2); s. 90J (1) and (2) in the case of broadcasting licences.

The expression "prescribed interest" is central to the operation of ss. 90-92KA. A shareholding interest constituting more than 5% of the total paid-up share capital in a company holding a television licence is a "prescribed interest" (s. 91 (2) (e) ). The percentage is 15% in the case of broadcasting licences (s. 90 (2) (c)).

The Australian Broadcasting Tribunal ("the Broadcasting Tribunal") shall not refuse to grant approval of such a transaction unless:-

(a) it is of opinion that a contravention of s. 92 (s. 90 in the case of broadcasting licences), which in effect prohibits the holding of "prescribed interests" in more than a specified number of licences, has resulted or would result; or

(b) it considers it necessary to do so in order to maintain such ownership and control of the company holding the licence as in the opinion of the Broadcasting Tribunal "best accord with the public interest" (ss. 92F (4A) and 90J (4A) ).

The appeal is brought pursuant to s. 44 of the Administrative Appeals Tribunal Act 1975 from a decision of the Administrative Appeals Tribunal ("the Tribunal") which affirmed a decision of the Broadcasting Tribunal made under ss. 92F (4A) and 90J (4A):-

(a) refusing approval of the acquisition by Bisley Investment Corporation Limited, the first applicant ("Bisley") of 20.37% of the issued capital of Country Television Services Limited, the second respondent ("Country Television") and of the proposed acquisition by Bisley of a further 2.69% of the issued share capital of Country Television; and

(b) approving the acquisition by Bisley of up to 15% of the issued share capital of Country Television.

With this background I turn now to the facts and the curial history of the matter.

Country Television is the licensee of commercial television stations CBN-8 Central Tablelands area (Orange) and CWN-6 Central Western Slopes (Dubbo) and the owner of all the issued share capital of the licensee of commercial broadcasting station 2GZ Orange which in turn holds all the issued share capital in the licensee of commercial broadcasting station 2NZ Inverell.

In or about 1935 a company called Country Broadcasting Services Limited obtained the licence to conduct radio station 2GZ at Orange. The shareholders were the Graziers' Association of New South Wales and other representatives of rural interests, especially those associated with the areas served by the radio station.

When it was announced that television would be introduced into Australia, Country Broadcasting Services Limited caused Country Television to be incorporated for the purpose of applying for and holding, if successful, the licence for the commercial television station proposed to be established in the Orange area. In due course the licence was granted to Country Television to operate the station.

Associated with Country Broadcasting Services Limited in the application for that licence were various companies, all having close links with the areas to be served by the licence, including Email Limited which is the largest employer in Orange.

Upon the licence being granted, 1,695,196 shares of five shillings each were alloted, of which 1,140,000 were held by Country Broadcasting Services Limited and the companies associated with it in the application for the licence; the remainder being alloted to the public, preference being given to residents of the area to be served by the station.

All shares in the capital of Country Television have equal voting rights.

With few exceptions, the directors of Country Television have always been associated with rural interests and, in many cases, with the particular areas served by Country Television's radio and television stations. There are at present seven directors, of whom three reside in the Orange/Dubbo area.

Although 50% of the shares in Country Television were initially held by persons residing in or otherwise associated with the area served by Country Television's radio and television stations, that percentage has now been reduced to 24%; although 1,064 persons residing in those areas are still shareholders and they represent 47.7% of the total number of shareholders.

Prior to the acquisition by Bisley of shares in Country Television, the issued share capital of Country Television comprised 2,787,664 ordinary stock units of 50 cents each full paid. No individual shareholder held shares in Country Television which constituted control of the company under s. 92B of the Act. There were nine major shareholders, Email being the largest shareholder with 373,560 stock units or 13.4% of the issued capital. None of the other shareholders sought representation on the Board of Country Television or participated in its operations or affairs; so that the board of directors, having predominately rural and local interests, was able to give effect to policies which enabled Country Television to identify itself with the relevant areas and to cater for the interests of the residents and those areas.

Country Television has liquid assets in excess of $4,000,000 comprising; shares in listed public companies - $1.7 million, moneys on deposit - $1.5 million and industrial real estate - $750,000.00. These assets have been earmarked by the board for possible future expansion in television and related activities.

Rene Rivkin, a graduate in law and a partner in the firm of stockbrokers, Rivkin & Co., together with other interests associated with that firm, control a company - Lytona Pty. Limited, the second applicant ("Lytona"). Their interests in Lytona were acquired for the purpose of enabling Lytona itself to acquire an interest in Bisley. About April 1979 Lytona acquired 45% of the issued share capital in Bisley, then known as Bisley Clothing Limited, a well established company manufacturing menswear. Following the acquisition of this 45% of Bisley's share capital, three representatives of Lytona, including Mr. Rivkin, were appointed to Bisley's Board of Directors.

As at 20 August 1980 (the date on which Mr. Rivkin's statement was tendered to the Broadcasting Tribunal during a public inquiry to which I shall refer later) Lytona owned 37.5% of the issued share capital in Bisley. Lytona's only activity is its investment in Bisley.

Since Lytona's involvement in Bisley, the latter's business has diversified. It is not only a manufacturer of menswear but carries on the business of "commodities, futures and moneymarket broking and general investment".

Mr. Rivkin said in his statement to the Broadcasting Tribunal that Bisley was interested in the "electronic media" because it believed that it would be a very strong growth area during the "80's and 90's".

In January 1980 Mr. Rivkin became aware that a parcel of shares in Country Television was available for sale. On 4 January 1980 Bisley purchased 113,500 shares (pre-bonus) in Country Television. Thereafter Bisley continued to purchase shares in Country Television, so that as at 20 August 1980 it owned 757,144 shares, 20.3% of the issued share capital in Country Television, of which 10,166 shares (.27%) were acquired after 20 May 1980. 470,983 of the 757,144 shares were purchased from three major shareholders in Bisley.

By letter dated 28 May 1980, Bisley sought approval from the Broadcasting Tribunal for the following transactions involving the acquisition of shares in Country Television -

(a) the acquisition of 446,783 (16.03%) (pre-bonus) shares;

(b) the transfer of 114,050 (4.09%) (pre-bonus) shares from Rivstock Nominees Pty. Limited, a company controlled by the three partners of Rivkin & Co.; and

(c) the acquisition of a further 80,050 (2.8%) (pre-bonus) shares in the open market.

Under the proposed arrangement, Bisley would hold 640,883 (22.99%) (pre-bonus) shares in the capital of Country Television and therefore would have a prescribed interest in the licences of stations CBN-8, CWN-6, 2GZ Orange and 2NZ Inverell.

An undated application of Bisley and Lytona received by the Broadcasting Tribunal on 13 August 1980 and subsequently amended by telephone sought approval of the Broadcasting Tribunal for the following transactions -

(a) the purchase by Bisley of 20.37% of the capital of Country Television; and

(b) the purchase by Bisley of a further 2.62% of the capital of Country Television.

At an extraordinary general meeting of stockholders of Country Television held on 21 July 1980 a recommendation to make a bonus issue of shares on the basis of 1 bonus share for each three stock units held on 1 August 1980 was approved. The new shares were alloted on 15 August 1980 and converted to stock units.

Following that allotment, the issued capital of Country Television became $1,858,443 comprising 3,716,886 fully paid ordinary stock units of 50 cents each.

On the day of the extraordinary general meeting Mr. Rivkin met Sir Alvin Burton-Taylor, the chairman of directors of Country Television, and other directors of that company. They discussed Bisley's purchase of shares in Country Television. Mr. Rivkin said that, in addition to the shares already acquired, it was not inconceivable that "we" (Bisley) "would like to go to 30%". He told Sir Alvin that it would be "nice" if Bisley could have two directors on the board of Country Television. Sir Alvin replied that it was a matter for the Board and that he could not himself conceive of two directors, but "one maybe". In a later conversation that same day, Mr. Rivkin was informed that the Board of Country Television had met and was happy for "one of us" to join the Board at an appropriate time, and that at the Annual General Meeting the shareholders would be asked to increase the number of directors to eight, thus allowing Bisley to have the additional seat on the Board.

The acquisition by Bisley of its shareholding in Country Television required the approval of the Broadcasting Tribunal pursuant to s. 90J of the Act as it constituted a "transaction" as a result of which Bisley became "the holder of shareholding interests" in Country Television "amounting to a prescribed interest in the licence" for broadcasting stations 2GZ and 2NZ.

Both Bisley and Lytona required the approval of the Broadcasting Tribunal pursuant to s. 92F of the Act in respect of their respective "prescribed interests" in the television licences of CBN and CWN.

By press announcements published on 24 June 1980 the Broadcasting Tribunal invited comments from members of the public on Bisley's applications for approval. The Broadcasting Tribunal received eight submissions which in essence objected to a non-local shareholder gaining control of the television and broadcasting stations and expressed fears that the services provided by them to the local rural community would be lost.

By notice dated 24 July 1980 the Broadcasting Tribunal gave notice that it intended to hold an Inquiry pursuant to ss. 90J and 92F of the Act into the applications of Bisley with respect to the following matters:-

"(i) whether, as a result of the transactions, the applicant, or any other person, has or will have a prescribed interest in

(a) more than four commercial broadcasting stations in any one State or

(b) more than eight commercial broadcasting stations in Australia;

(ii) whether, as a result of the transactions, the applicant, or any other person, has or will have a prescribed interest in each of three or more commercial television station licences;

(iii) the extent, (if any) to which the changes in the ownership and control of the licensee (whether direct or indirect) that have occurred, or will occur, as a result of the transactions accord, or will accord, with the public interest;

(iv) the effect of the transactions on the commercial broadcasting services provided by commercial broadcasting stations 2GZ Orange and 2NZ Inverell, and

(v) the effect of the transactions on the commercial television services provided by CBN-8 Orange and CWN-6 Dubbo".

On 20 August 1980, the Vice-Chairman of the Broadcasting Tribunal, Mr. James Oswin, sitting as a Division of that Tribunal pursuant to s. 15C (1) of the Act, conducted an Inquiry at Orange into the applications. After the conclusion of the Inquiry the Broadcasting Tribunal (3 members including Mr. Oswin) considered the applications further and on 24 December 1980 delivered its decision and, by majority (Mr. Oswin and Mr. Moremon, Mr. Jones, the Chairman, dissenting) decided -

"1. To refuse to approve pursuant to s. 92F of the Act in so far as it affects Bisley Investment Corporation Limited and Lytona Pty. Limited and pursuant to s. 90J of the Act in so far as it affects Bisley Investment Corporation Limited the acquisition by Bisley Investment Corporation Limited of 20.37% and the proposed acquisition by that company of a further 2.62% of the issued ordinary capital in Country Television Services Limited.

2. To approve pursuant to s. 92F of the Act in so far as it affects Bisley Investment Corporation Limited and Lytona Pty. Limited the acquisition by Bisley Investment Corporation Limited of up to 15% of the issued ordinary capital in Country Television Services Limited.

3. To approve pursuant to s. 90J of the Act in so far as it affects Bisley Investment Corporation Limited the acquisition by Bisley Investment Corporation Limited of up to 15% of the issued ordinary capital in County Television Services Limited."

Bisley and Lytona then appealed to the Tribunal which decided on 15 September 1980 to affirm the decision of the Broadcasting Tribunal.

At the hearing before the Tribunal the material before the Broadcasting Tribunal when reaching its decision was tendered, apparently without objection. That material included submissions from various local people and viva voce evidence of Mr. Rivkin, Sir Alvin Burton-Taylor and Archdeacon Kempson - Anglican Rector of the Parish of Orange.

Other evidence before the Tribunal included the affidavits of Sir Alvin Burton-Taylor, Archdeacon Kempson and Mr. West - Member of the Legislative Assembly of New South Wales for the Electoral District of Orange; further viva voce evidence of Sir Alvin Burton-Taylor and Mr. West; and additional documents.

The primary submission of the appellants was that the Tribunal erred in regarding as relevant for the purposes of s. 92F (4A) (s. 90J (4A) as to broadcasting stations) provisions of the Act relating to statutory or deemed control. It was submitted that statutory control is relevant solely to determine whether a person has a "prescribed interest" in a licence and that the whole machinery of the Act relating to "prescribed interests" exists readily to ascertain if a person has contravened s. 92 (s.90C in the case of broadcasting stations) which limits the number of licences in which that person may have a "prescribed interest". The Act fastens on the acquisition of a "prescribed interest" as activating the provisions of the Act (s.92F for television stations and s. 90J for broadcasting stations) which require the approval of the Broadcasting Tribunal of transactions involving the transfer of shares; but it serves no other purpose under s. 92F (or s. 90J). The control referred to in s. 92F (4A) (b) is said to be commercial control, not statutory or deemed control.

The appellants submitted that the Tribunal not only regarded statutory control as a relevant consideration under s. 92F (4A)(s. 90J 4A)); but assumed that the holding of a "prescribed interest" was prima facie contrary to the public interest; and that an onus lay upon the appellants to prove that it would best accord with the public interest that they acquire a "prescribed interest" in a commercial television licence. It was submitted by the appellants that the Tribunal fell into further error by wrongly thinking that the "prescribed interest", as to television licences, was the holding of a shareholding interest exceeding 15% of the paid up share capital, not 5% as it is in fact.

It is necessary to examine the provisions of the Act dealing with ownership and control of television and broadcasting stations and licences.

For almost 50 years Commonwealth law has limited the number of broadcasting stations which may be controlled by any one person or persons in the one interest. As long ago as 1935 the number of broadcasting licences which could be controlled by the one interest was limited by Commonwealth Regulation to eight (Statutory Rule No 120 of 1935 made under the Wireless Telegraph Act 1905). Since 1935 Commonwealth legislation relating to this question has increased considerably. The Act now contains elaborate and detailed provisions defining what is meant by control: ss. 90-92KA (divisions 2 and 3 of Part IV).

The Act limits the total number of broadcasting and television licences which may be controlled by the one interest: 8 broadcasting and 2 television licences. The Act does not stop there. For example, it prohibits the holding of prescribed interests in more than four broadcasting licences in any one State, more than four metropolitan broadcasting licences in Australia and more than one metropolitan broadcasting licence in any one State (s. 90C (1) ).

The Act forbids the holding of prescribed interests in two television licences in the same State capital and two television licences in a Territory.

The Act generally speaks of deemed control rather than actual control. The two concepts are different and it is important to keep this distinction in mind. The definition of "prescribed interest" is common to many of the provisions relating to ownership and control and links those provisions to s. 92 (broadcasting licences s. 90F) which prohibits the holding of "prescribed interests" in more than a specified number of licences.

Section 91 (2) (broadcasting licences s. 90 (2) ) states five tests for determining whether a person has a "prescribed interest".

Two of these tests depend upon control of the licence itself (being the holder of the licence or being in a position to exercise control, either directly or indirectly, of the licence). Section 92A (broadcasting licences s. 90D) defines "control of a licence" in terms of being the licence holder; being in a position to exercise control of the company that holds the licence; or being in a position to exercise control of the operations conducted under the licence or of the management of the station or of the selection or provision of programmes to be televised by that station.

"Control of a company" is given an extended meaning by s. 92B (broadcasting licences s. 90E). A person is deemed to be in a position to exercise:-

(a) control of a company,

(b) of any votes, in respect of another company, of which that company is in a position to exercise control; and

(c) of all acts and operations of that company -
if he is in a position to exercise control of more than 15% of the voting power in the company or has "shareholding interests" in a company including shareholding interests exceeding in amount 15% of the total of the amounts paid on all shares in the company.

A person has a "shareholding interest" in a company if he is beneficially entitled, to or to an interest in, shares in the company provided the value of the shares is equal to the amount paid up on the shares (s. 91 (3) ).

The three other tests for the existence of a "prescribed interest" in s. 91 (2) depend on the person being in a position to exercise control of more than 5% of the voting power of the company; or the person being the holder of interests in the company holding the licence exceeding in amount 5% of the total of the amounts of all the interests in that company that would exist if ss. 91A and 91B had not been enacted; or the person being the holder of shareholding interests in the company holding the licence exceeding in amount 5% of the total of the amounts paid up on all shares in that company.

Section 91 (1) (s. 90 (1) as to broadcasting stations) defines "control" as including "control as a result of, or by means of, trusts, agreements, arrangements, understandings and practices, whether or not having legal or equitable force and whether or not based on legal or equitable rigths".

Shareholding interests may be traced down the line through a series of companies to a company which is the licensee. It is by means of these tracing provisions (ss. 91A television and 90B broadcasting) that a company which does not hold shares in a company holding a licence may nevertheless be deemed to have a shareholding interest in such a company.

Section 92C (broadcasting stations 90F) limits the number of directorships of "television" companies which a person may hold. Section 92D (broadcasting stations 90G) limits non-resident ownership and control.

The Act deems a person to be in a position to exercise control of a television licence or of the company holding the licence if, for example, he is beneficially entitled to more than 5% of the paid-up shares in the company holding the licence (control of the licence) or is in a position to exercise control of more than 15% of the voting power of a company or has shareholding interests in a company exceeding 15% of the total of the paid-up share capital of the company (control of the company and therefore the licence) - ss. 92B and 92A. Similarly, in the case of broadcasting licences, except the percentage is 15% in each case.

With a percentage as low in some cases as 5%, it is plain that many people will be deemed to be in a position to exercise control who do not in fact control.

This suggests that the draftsman of the Act intended to cast a very wide net and include all cases of actual control as well as the larger class of potential controllers. The following passage from the judgment of Kitto J. in The Herald and Weekly Times Limited v. The Commonwealth (1966) 115 C.L.R. 418 and p. 436-437 is in point:-

". . . the offence provisions are setting up a barrier against, not indeed the probability, but the possibility that a person who may be able, by reason of any of a number of legal or business relationships, to influence the exercise of the rights conferred by one television licence may be able, by reason of such a relationship, to influence the exercise of the rights conferred by another television licence".

His Honour said that each of these relationships gave rise to

". . . a situation which according to ordinary experience may, in some cases at least, support an endeavour to affect the control or management of a television station or its operation under its licence. And, as everyone knows, even the faintest of voices may sometimes carry the day."

The policy of the Act is to secure freedom of competition and diversity of control among the important national services of television and broadcasting. Hence, the prohibition on the control by any one person or persons in the one interest of more than a specified number of television or broadcasting licences.

Human ingenuity being what it is, the Act contains complex provisions to defeat schemes designed to circumvent these prohibitions by interlocking companies and arrangements of various descriptions. Once a person acquires a prescribed interest in a licence (even a shareholder holding as little as 5% of the paid up capital in the company holding the television licence) the Act treats him as being a potential controller of the licence or of the company that holds it.

It is not entirely clear why Parliament chose a shareholding of 15% in the case of broadcasting licences and 5% for television licences. Probably it was thought that radio stations are more often owned by local family interests and that their share capital generally is more closely held

The Act selects the Broadcasting Tribunal as the appropriate body to determine whether a person should hold more than a prescribed interest: s. 92F (broadcasting stations s. 90J).

Where a transaction takes place whereby a person becomes the holder of prescribed interest in the licence, he may apply to the Broadcasting Tribunal for approval of the transaction in so far as it affects him; and the Broadcasting Tribunal may grant or refuse approval (s. 92F (1) and (2) ) (broadcasting stations s. 90J (1) and (2) ).

Sub-sections (4) and (4A) of s. 92F (sub-ss. (4) and (4A) of s. 90J in the case of broadcasting stations) provide:-

"92F. . . (4) The Tribunal shall not refuse to grant approval under this section unless it has held an inquiry into such matters as are determined by the Tribunal to be relevant to the application of this sub-section and sub-section (4A) in relation to the transaction.

(4A) The Tribunal shall not refuse to grant approval under this section, and shall not give a notice under sub-section (3), unless the Tribunal -

(a) is of the opinion that the transaction has resulted or would result in a contravention by the person concerned of section 92; or

(b) considers it necessary to do so in order to maintain such ownership and control, whether direct or indirect, of the company holding the licence as, in the opinion of the Tribunal, best accord with the public interest."

The definition of "control" in s. 91 (1) (broadcasting s. 90 (1) ) applies not only to deemed or statutory control but also to the control of which sub-s. (4A) speaks. The definition in s. 91 (1) (and s. 90 (1) ) is an inclusive definition. It is necessary to first inquire as to the ordinary meaning of the word and then apply the statutory extensions mentioned in this section. So understood, control in sub-s. (4A) means control in the sense of control according to its ordinary meaning whether it results from or by means of legally binding agreements or informal arrangements or understandings or practices.

But this is not to say that deemed or statutory control is irrelevant for the purposes of sub-s. (4A). It is the acquisition of a "prescribed interest" that enlivens the Broadcasting Tribunal's jurisdiction to approve or refuse to approve the transaction. The Broadcasting Tribunal must approach its task on the footing that Parliament regards the acquisition of a "prescribed interest" (as low as 5% in the case of the television station) as conferring a potentiality for subsequent control. But the Broadcasting Tribunal should not approach its task on an assumption that a "prescribed interest" is inimical to the public interest. To do so would be a misconception of the role played under the Act by the acquisition of a "prescribed interest". Also it would be contrary to the requirements of sub-s. (4A). It is only if the Broadcasting Tribunal considers it necessary to refuse approval on the grounds specified in the sub-section that it may do so. If, for example, the Broadcasting Tribunal is left in doubt whether it is necessary to refuse approval, it must grant approval. This is inconsistent with any assumption that a "prescribed interest" is against the public interest.

It is also erroneous to talk of the appellants as bearing any onus of proof for the purposes of sub-s. (4A). The concept of onus of proof has its place primarily in civil and criminal proceedings before Courts. It may apply to proceedings before Administrative Tribunals in some cases, but not relevantly to sub-s. (4A). The Broadcasting Tribunal is required to hold an inquiry into such matters as are determined by it to be relevant to the application of sub-ss. (4) and (4A) in relation to the transaction; and it shall not refuse to grant approval unless it considers it necessary to do so in order to maintain the ownership and control mentioned in sub-s. (4A) (b). Doubtless the person seeking approval for the transaction will produce material before the Broadcasting Tribunal so that a decision can be made by it; but it does not follow that any onus of proof lies upon him in the sense of either an ultimate onus or an evidentiary onus.

I agree with the following passage from the decision of the Tribunal (Morling J.) in Control Investments Pty. Limited v. The Australian Labor Party, decision given 17 December 1981 at p. 215-6:-

"An inquiry held in pursuance of that duty is different in character from a case where one party seeks to prove a case against another. In such a case one or other of the parties usually bears an onus of proof, depending upon the particular issues in the case. However, accepting that there is no onus in the usual sense, I think there is much to be said for the argument, pressed by the applicants, that the effect of s. 92F (4A) is to require the Tribunal to approve an application unless it is satisfied of one or other of the matters referred to in s. 92F (4A) (a) or (b). If, having made inquiry, the Tribunal is left in doubt whether it should come to the opinion referred to in s. 92 (4A) (a), or whether it is necessary to refuse the application in order to maintain the ownership and control referred to in s. 92F (4A) (b), then it is under an obligation not to refuse approval."

As I understand the Tribunal's reasons for its decision, it did not regard the appellants as bearing any evidentiary onus of proof during the conduct of the Inquiry before the Broadcasting Tribunal; indeed, the Tribunal expressly disclaimed any notion that an onus of proof lay upon the appellants. I have not found it easy to decide whether the Tribunal regarded the appellants as bearing any ultimate onus of proof; but I have come to the conclusion that this was not the Tribunal's view.

I turn to the submission of the appellants that the Tribunal embarked upon its task on the assumption that it was prima facie contrary to the public interest that Bisley and Lytona acquired a "prescribed interest" and, that this assumption coloured the whole approach of the Tribunal to the matter before it. This submission is essentially different from the submissions in relation to onus of proof.

The Tribunal said in its reasons:-

"My view is that on a consideration of the whole section and the interests to be protected, a pre-condition of refusal to approve a transaction is that there is held the ss. (4) inquiry. That inquiry is concerned with the public interest. The moving party subject to what appears below, is the person seeking approval. There is no prima facie notion, I suggest, that a shareholding acquisition of or beyond the prescribed interest is to be assumed in accord with public interest; but rather the reverse. Then it is to be investigated whether the applicant is to have the approval he seeks; i.e. if to refuse is necessary to maintain the relevant ownership and control; or whether there should be an approval granted to the applicant in aid of its maintenance."

In my view the Tribunal did conduct the appeal before it on the assumption that prima facie the holding by the appellants of shares, at least sufficient to constitute "prescribed interests", was not in accord with the public interest. I am conscious that, when making its ultimate findings, the Tribunal did not say that any such prima facie assumption had not been rebutted. Also, I do not think that it is a correct approach for a court, hearing an appeal on a question of law from the Tribunal, to expect every process of reasoning, no matter how minute, to be expressed in the reasons for decision. But the passage just cited from the Tribunal's reasons seems to me to be a plain assertion of the assumption in question. I see nothing else in the reasons pointing clearly to the contrary. Indeed, I have the impression from a reading of the Tribunal's reasons as a whole that it made this assumption.

With respect to the Tribunal, in my opinion, that assumption is erroneous. I said earlier that there is no onus of proof in the strict sense cast upon the person seeking approval. Nor is there room for any prima facie assumption that the acquisiton of a "prescribed interest" is not in accord with the public interest. The acquisition of a "prescribed interest" is the incident fastened on by the Act to indicate a potentiality for future control of the company holding the licence.

Such acquisition gives rise to the necessity to seek the approval of the Broadcasting Tribunal for the acquisition. The Broadcasting Tribunal is then charged with the duty of granting or refusing approval. It shall not refuse to grant approval unless it is of the opinion that the transaction has resulted or would result in the contravention by the person concerned of s. 90 (2) or 90C; or it

"considers it necessary to do so in order to maintain such ownership and control, whether direct or indirect, of the company holding the licence as, in the opinion of the Tribunal, best accord with the public interest."

The structure and language of sub-s. (4A) are inconsistent with the prima facie assumption in question.

I am satisfied that the Tribunal erred in law and that it cannot be said with confidence that the Tribunal would have come to the same conclusion if it had not made that assumption. That being so the appellants are entitled to have their application for review redetermined: Collins v. Minister for Immigration and Ethnic Affairs (1981) 36 A.L.R. 598 at p. 603.

I turn to the criticism of the Tribunal's reasons that it regarded a "prescribed interest" in the television licence as being the holding of 15% of the paid-up capital of the company holding the licence; whereas in truth, the percentage is 5%.

Whether through oversight, or a slip of the pen, I am satisfied that the Tribunal did fall into error in this respect.

Earlier I thought that a combination of ss. 92B (1), 92A (1) (b) and 91 (2) (b) might suggest that the Tribunal's reference to a "prescribed interest" in a company holding a television licence being 15% of the total of the amounts paid on all shares in the company was accurate. However, a fair reading of the relevant parts of the Tribunal's reasons leaves me with the impression that the Tribunal momentarily overlooked the fact that a 5% shareholding is sufficient for a "prescribed interest" in a licence for a television station.

This is an error of law; but it does not necessarily follow that the matter must be sent back to the Tribunal for re-consideration on this ground. In my opinion the Tribunal would have come to the same conclusion as it did if it had not placed any weight at all upon its view that a 15% shareholding was necessary for a "prescribed interest" in a television licence. Indeed, if the error played any part at all in the Tribunal's decision, it would have operated in favour of the appellants. This error affords no basis for sending the matter back to the Tribunal for reconsideration: Collins v. Minister for Immigration and Ethnic Affairs (supra).

It was next submitted by the appellants that the Tribunal erred in concluding:-

"I consider that it is not possible exactly to anticipate what might be the result in the future of permitting Bisley to hold more than 15% of Country Television shares. With a holding of shares beyond that percentage there is a real possibility in the future there could well be exerted control or a degree of control by Bisley inhibiting the discharge by Country Television of its responsibility according to its present high or appropriate standards to the people of the area reached by its signals. The possibility of control would increase if Bisley in any effort it might make towards greater influence were to be assisted by a 'friendly' shareholder or group."

The appellants submitted that it was irrelevant for the Tribunal to consider the future possibility of control of Country Television; that only present control was relevant, and that even if such possibility was relevant, there was no evidence to support those findings of the Tribunal.

I reject the argument that the possibility of control of a company holding a television (or broadcasting) licence is an irrelevant field of inquiry for the Broadcasting Tribunal under s. 92F (4A) and s. 90J (4A).

The overriding concern of the Act is to ensure the preservation of freedom of competition and diversity of control. The Act selects criteria including a shareholding interest of 5% in the case of television licences and 15% in the case of broadcasting licences as indicative of a potentiality for possible future control. This points strongly to the conclusion that it is within the scope of the Broadcasting Tribunal's inquiry under sub-s. (4A) to examine matters touching the possibility of future control of the company holding the licence.

Contrary to the argument advanced by the appellants, the existence in the Broadcasting Tribunal of powers to vary or revoke conditions of licences or to impose further conditions (s. 85) or to suspend or revoke licences (s. 88) does not support a conclusion that the possibility of future control is an impermissible field of inquiry under sub-s. (4A).

In R. v. Australian Broadcasting Tribunal; ex parte 2HD Pty. Limited (1979) 144 C.L.R. 45 the High Court considered s. 89 (1) of the Act which provided, inter alia, that the licensee of a commercial broadcasting station might transfer the licence with the consent in writing of the Broadcasting Tribunal; but without that consent it should not do so. The High Court held that the subject matter, scope and purpose of the Act suggested that the Broadcasting Tribunal's discretion to refuse consent to a transfer of a licence extended to matters of public interest and was not confined to cases where the transfer would bring about a contravention of the Act; and that the concentration of ownership below the limit fixed by s. 90C might give rise to a possibility of influence and control prejudicial to the public interest and that the Broadcasting Tribunal might take that possibility into account when deciding whether to consent to the transfer of a licence.

It would be anomalous if the possibility of control prejudicial to the public interest is a permissible ground for refusing consent to a transfer of the licence itself (s. 89A); but is not a permissible ground for refusing consent to a transfer of shares in the company holding the licence.

The wide discretion conferred upon the Broadcasting Tribunal by s. 92F together with s. 17 (1) which provides that, for the purpose of exercising its powers and functions under the Act, the Broadcasting Tribunal should have power to do all things as it thinks fit confirms my view that the Broadcasting Tribunal's discretion cannot be fettered in the way sought by the appellants.

I turn to the submission that there is no evidence to support the Tribunal's findings relating to the possibility of future control. The evidence shows that Bisley was a manufacturer of menswear until Mr. Rivkin and his associates assumed control of it. Thereafter it became, in addition, a financial entrepreneur. Mr. Rivkin told Sir Alvin Burton-Taylor that "it was not inconceivable that we " (Bisley) "would like to go to 30%". Bisley wished to have two of its representatives on the Board of Country Television. Bisley continued to acquire shares in Country Television after it acquired a prescribed interest thus acting contrary to law (s. 92F (5) and s. 90J (5) ). Country Television has liquid assets upwards of four million dollars. Bisley has no rural interests whether in the Orange/Dubbo district or otherwise. It has nothing to contribute to Country Television except perhaps financial and accounting advice - advice which Sir Alvin Burton-Taylor, the Chairman of Directors of Country Television, said could be readily purchased elsewhere if Country Television's existing sources of advice and expertise needed supplementing. Sir Alvin Burton-Taylor gave evidence which was accepted by the Tribunal that a holding by Bisley of 20% of the capital of Country Television with the support of Bisley's friends holding less than a "prescribed interest" (say 4.9%) could ensure control of Country Television. Bisley sought not merely a holding of 30%; it wanted also some measure of control of Country Television's affairs.

This is not the only evidence touching the question of the possibility of future control of Country Television by Bisley; but I have referred to sufficient of the evidence to demonstrate that there was evidence on which the Tribunal could make the finding it did relating to this question. The submission fails.

Finally as to this aspect of the matter, it was submitted by the appellants that the Tribunal failed to give any, or any real, weight to the "undertaking" of Mr. Rivkin given by counsel for Bisley to the Tribunal during the course of the hearing before it.

That "undertaking" is in the following terms:-

"That in the event of any offer being received in Bisley's shareholding in Country Television at some future time should it, contrary to present intentions, be disposed to sell the shares, they would first be offered to residents of the viewing area or areas of the licencee company at the price offered to Bisley; further, that in the event of any takeover bid being made for Bisley Mr. Rivkin would attempt to have the value of Bisley's shareholding in Country Television independently assessed and offered separately to the residents of the viewing area or areas to which I have referred. I would merely point out, your Honour, that the undertaking in relation to any takeover offer for Bisley cannot be given as a firm undertaking, as Bisley being a public company, the views of the minority shareholders would have to be considered."

The Tribunal set out the terms of the "undertaking" in its reasons for decision; but did not refer to it otherwise. This does not avail the appellants. It is an "undertaking" as to Bisley's intentions if it wishes to sell its shares in Country Television in the future. It says nothing as to the circumstances in which Bisley may acquire further shares in Country Television. Indeed, it is difficult to see what status this "undertaking" has at all. It is called an "undertaking"; but in so far as it referred to any takeover offer for shares in Bisley itself it could not be given as a "firm undertaking" as Bisley is a public company and the views of minority shareholders would have to be considered. It has not been shown that the Tribunal erred.

The appellants referred to the following passage in the Tribunal's reasons:-

"It is necessary to bear in mind that an approval now could have long term results on the Bisley-Country Television relationship; and that Bisley is a company the attitudes and intentions of which may not always be those of Mr. Rivkin or Lytona."

This passage was contrasted with a later passage in the reasons of the Tribunal:-

"In my opinion the disregard by Bisley of the ss. (5) in its acquisition of shares provides some evidence showing Bisley's attitude to its obligations under the Act. Strict adherence to the law must, it seems, yield to other considerations. Such conduct reduces one's confidence in evaluating what might be the future course of Bisley in its participation in the affairs of Country Television."

These were said to be inconsistent statements. Even if they are inconsistent statements I am far from persuaded that they demonstrate an error of law or, if there was an error of law, that it affected the Tribunal's decision. But to my mind the statements have not been shown to be inconsistent. When the Tribunal made the statement first cited, it was in the context of its finding that there was a real possibility of future control of Country Television by Bisley. The statement was merely that Mr. Rivkin or Lytona may not always control Bisley and that this added another element of uncertainty in defining the future intentions of Bisley.

The second statement cited earlier was made by the Tribunal as part of its reasons for exercising its discretion against approval of the acquisition. The Tribunal said in effect that Bisley contravened ss. 92F (5) and 90J (5), preferring other considerations to strict adherence to the law; and that, because of this, the Tribunal's confidence in the propriety of Bisley's future role in the affairs of Country Television was diminished.

I do not construe the Tribunal's reasons in these two passages as saying on the one hand that Bisley, Mr. Rivkin and Lytona are deserving of admiration and on the other hand that they are not. Even if this is the proper construction of the passages, I do not think that it avails the appellants. The submission fails.

Then it was submitted by the appellants that the Tribunal erred in giving weight to the views expressed by eight people who made submissions to the Broadcasting Tribunal. The people concerned had some association with the Orange/Dubbo areas and expressed concern about the prospect of Bisley's acquisition of shares in Country Television.

Having summarised these submissions the Tribunal said:-

"I consider some weight should be given to the views expressed by these persons."

This statement was criticised by the appellants on the ground that no weight should have been given to the submissions at all; alternatively, that the Tribunal failed to state what weight it gave to them and; alternatively, that the Tribunal surrendered its judgment to the views of the eight people concerned.

Seven of the eight people made written submissions which were tendered before the Broadcasting Tribunal and before the Tribunal itself, apparently without objections. The Tribunal was entitled to read and consider the submissions. The very purpose of an inquiry under ss. 92F (4) and 90J (4) is to allow people interested in the subject matter of the inquiry to give their views and information to the Broadcasting Tribunal so that it may carry out its duties. The ventilation of feelings by members of the public is at the heart of the purpose of sub-s. (4). Neither the Broadcasting Tribunal nor the Tribunal itself are bound by the rules of evidence and each body may inform itself on any matter in such manner as it thinks appropriate (s. 25 of the Act and s. 33 (1) of the Administrative Appeals Tribunal Act 1975)

What weight if any the Tribunal should have given to the submissions is, of course, another question. If the submissions took into account matters irrelevant to the inquiry or plainly overlooked relevant considerations, generally, little, if any, weight would be given to them. Viewed broadly, the submissions do not deal with matters irrelevant to the inquiry. The Tribunal was entitled to give some weight to the views expressed in them. The Tribunal did not say what weight it gave to these views; but a reading of the Tribunal's reasons does not show that anything said in the submissions led the Tribunal into error. The passage in the Tribunal's reasons which is impugned by the appellants was a general statement recognising that a representative group of local objectors had expressed concern about Bisley's acquisition of shares and, in particular, concern that the quality of the television programmes of Country Television would suffer if control passed to Bisley.

By not stating what weight the Tribunal gave to the submissions it was submitted by the appellants that the Tribunal had failed to comply with s. 43 (2) of the Administrative Appeals Tribunal Act 1975 which provides that:-

". . . the Tribunal shall give reasons in writing for its decision and those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based."

In view of my analysis of the impugned statements of the Tribunal, this criticism has not been made out.

The appellants submitted that the only reasons given by the Tribunal for its decision are to be found in the last few pages of its reasons and that they do not include findings on material questions of fact or a reference to the evidence on which those findings were based. In these circumstances it is said that the Tribunal failed to comply with the requirements of s. 43 (2) of the Administrative Appeals Tribunal Act 1975.

The particular passages which were said to comprise the only reasons given by the Tribunal are as follows:-

"I consider that it is not possible exactly to anticipate what might be the result in the future of permitting Bisley to hold more than 15% of Country Television shares. With a holding of shares beyond that percentage there is a real possibility in the future there could well be exerted control or a degree of control by Bisley inhibiting the discharge by Country Television of its responsibility according to its present high or appropriate standards to the people of the area reached by its signals. The possibility of control would increase if Bisley in any effort it might make towards greater influence were to be assisted by a "friendly" shareholder or group. It is necessary to bear in mind that an approval now could have long term results on the Bisley Country Television relationship; and that Bisley is a company the attitudes and intentions of which may not always be those of Mr. Rivkin or Lytona . . . . To grant the approval sought might involve the disregard of a persistent course of illegal acquisition; nevertheless in my opinion, as earlier stated, this can and should be done where appropriate. To allow the concentration of voting power for which approval is sought by Bisley would in circumstances which may well arise permit a significant degree of control by an entity which does not even pretend to be able to assist Country Television in the exercise of its primary function. Any contribution Bisley could make by way of financial or investment advice, so Mr. Rivkin assured the Tribunal in emphatic terms, will be available anyway, i.e. if Bisley retains the 15% shareholding; or obtainable otherwise. In my opinion the disregard by Bisley of the ss. (5) in its acquisition of shares provides some evidence showing Bisley's attitude to its obligations under the Act. Strict adherence to the law must, it seems, yield to other considerations. Such conduct reduces one's confidence in evaluating what might be the future course of Bisley in its participation in the affairs of Country Television. Quite apart from the decisions cited as to illegality and whatever disadvantage in this exercise should be incurred by Bisley because of its persistence in acquiring shares in the fact of the wording of s. 90J (5) and s. 92F(5), I am of opinion that in order to maintain such ownership and control of Country Television as best accords with public interest it is necessary that the approval sought beyond that granted by the A.B.T. decision should be refused."

I do not accept that the only reasons of the Tribunal for its decision are to be found in those passages; but I agree that they encompass the principal conclusions of the Tribunal.

It is for the appellants to satisfy this Court that the Tribunal erred in law. There is no presumption that the Tribunal has failed to discharge its duty under s. 43 (2).

It is true that in the course of its lengthy reasons for decision the Tribunal did not say expressly that it made particular findings of fact; but it referred to many matters of fact relevant to the issues before it. Plainly the Tribunal regarded these matters as relevant and material; otherwise it is difficult, if not impossible, to conceive why any reference was made to them at all.

We were referred to no case where it has been held that an Administrative Tribunal has overlooked or treated as irrelevant or immaterial matters expressly referred to in its reasons for decision and not there expressly stated to have been treated as irrelevant or immaterial.

A reading of the reasons of the Tribunal as a whole establishes to my satisfaction that the matters of fact referred to by it in those reasons were considered by it to be both relevant and material. I do not proposed to refer to these matters of fact or to summarise them. They were fully canvassed in argument and were summarised by the respondent in written submissions. I am satisfied that the Tribunal's reasons do include findings on material questions of fact and a reference to the evidence on which the findings were based.

Another submission of the appellants was that the Tribunal erred in failing to take into account or, to take properly into account, "established and consistent policy" of the Broadcasting Tribunal. This policy was said to arise from decisions of the Broadcasting Tribunal in earlier cases which came before it. The appellants placed heavy reliance upon the decision of Brennan J. (then the President of the Tribunal) in Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) 1979 1 A.A.T. 634. Drake (No. 2) was concerned with the policy of the Minister for Immigration and Ethnic Affairs formed and promulgated to guide the exercise of his discretion under ss. 12 and 13 of the Migration Act 1958 especially in relation to the deportation of persons convicted of drug offences. It says nothing as to the "policy" which it is said that the Broadcasting Tribunal, an administrative tribunal, has evolved in considering matters arising under the Act.

Further, there is no relevant "policy" to be gleaned from the Broadcasting Tribunal's decisions. They are simply decisions of the Broadcasting Tribunal in a variety of cases, each of which is distinguishable from this case. If the argument of the appellants is taken to its logical conclusion it must follow that this "policy" binds the Tribunal itself, whose very function is to review decisions of the Broadcasting Tribunal - a proposition which I find fundamentally misconceived.

I need not pause to refer to the particular aspects of the Broadcasting Tribunal's "policy" which were said to be involved in the present case. They were discussed between counsel for the appellants and the Bench and were disposed of in the course of argument. All I will refer to is what was said to be the first instance of this alleged "policy" namely, the fact that the person seeking the approval of the Broadcasting Tribunal under s. 92F has contravened s. 92F (5) is an irrelevant consideration for the Broadcasting Tribunal when determining whether to approve or not approve the transaction in question. Not only can no such policy be gleaned from the earlier decisions of the Broadcasting Tribunal to which we were referred but, even if it could, it must be wrong. It must be relevant for the Broadcasting Tribunal, and a fortiori, the Tribunal itself, to have regard to contraventions of s. 92 F and s. 90F by the very person seeking approval of the transactions the subject of the contravention. That is not to say that the contraventions must disentitle that person to approval; but plainly it is a relevant matter for consideration.

Other submissions were made by the appellants; but I need not repeat them as they were dealt with in the course of argument and, in any event, did not disclose any questions of law.

I would allow the appeal and remit the matter to the Tribunal for re-determination. It will be a matter for the Tribunal to determine whether further evidence should be received.

Country Television must pay the appellants' costs of the appeal. There should be no order as to the costs of the Broadcasting Tribunal, the first respondent, in relation to the appeal as it played no part in the appeal to this Court.

JUDGE2

In this matter I have had the advantage of reading the judgments to be delivered by Lockhart and Morling JJ. I agree generally with their reasons and with their conclusions.

I feel bound to say that for a time I found it difficult to perceive, from the mass of submissions and criticisms of the decision which were made, what the essential complaints made by the applicants about the decision were. The reduction of the applicants' submissions to writing did not provide the clarification which might have been expected.

But, as I understand the matter, the essential complaint which the applicants make is that the Administrative Appeals Tribunal ("the Tribunal") in reaching its conclusions took into account matters of which there was no evidence or which were no more than possibilities, themselves depending upon so many contingencies and so much speculation that they were fanciful or unreal. Despite the length of the Tribunal's decision the essence of its reasoning is to be found in the passages quoted by Lockhart J. at pp.34-35 of his judgment. In my opinion the matters there referred to, possibilities though they are, are matters upon which the Tribunal was entitled to rely in reaching its decision. That conclusion is, I believe, in accord with the decision of the High Court in The Queen v. The Australian Broadcasting Tribunal; ex parte 2 HD Pty. Limited (1979) 144 C.L.R. 45. The Court was there concerned with the interpretation of s.89A(1) of the Broadcasting and Television Act 1942 ("the Act") and with the question of whether The Australian Broadcasting Tribunal ("the Broadcasting Tribunal") was to be concerned with matters relating to the public interest when deciding whether or not to consent to the transfer of a licence. There is no mention of public interest in the section. Nevertheless the Court considered that the Broadcasting Tribunal was entitled to take into account under s.89A of the Act any matter affecting the public interest (pp.50-53). In the present case the Tribunal was expressly concerned with the public interest - sub.sections (4A) of ss.90J and 92F. Contrary to the submission of counsel for the applicants, the 2 HD case is this in point in the present case. The relevant dictum in the judgment of the Court is as follows (p.54):

"The attainment by a person without approval of a prescribed interest in a licensee company (shareholding exceeding the 15% figures of the total of the amounts paid on all shares in that company) can attract that the person is to cease to have shareholding interest in the licensee company amounting to a prescribed interest, e.g. s.90J, 92F."

It is true that the reference to a 15% shareholding is inapposite in that, in the case of a television licence, a person has a prescribed interest if he holds 5% of the shares in the company holding the licence - see s.91(2). But I do not think it is correct to treat this slip as manifesting a basic misunderstanding of the relevant provisions of the Act. I think that the absence of a reference to a 5% shareholding constituting a prescribed interest in the case of a company holding a television licence is explicable if one bears in mind that his Honour was not necessarily intending to refer exhaustively to prescribed interests in the opening words of the above quoted passage from his judgment. I do not think that a fair reading of the whole of the judgment discloses that his Honour was under any misapprehension as to the provisions of the Act dealing with shareholdings that give rise to prescribed interests.

In any event, in so far as any error was made by his Honour in this regard, it could only have operated in favour of the applicants. It can reasonably be assumed that his Honour would have concluded that the applicants had stronger cases for approval had he been of the view that it was necessary for a shareholding in a company holding a television licence to exceed 15% before the shareholder obtained a prescribed interest. Put another way, it is clear that if there were error (which I do not accept) it played no part in his Honour's decision to refuse the applications. In these circumstances there is no basis for the making of an order that the applications should be re-determined. See Vocisano v Vocisano (1974) 130 C.L.R. 267 at 274-5 and Rose-Beresford v The Commonwealth (1971) 45 A.L.J.R. 178.

Mr Shand also submitted that, although his Honour did not say so in so many words, his reasons disclose that he was of the view that the applicants carried the onus of establishing that their applications should be approved. He claimed this was an error of law which vitiated the decision. He fastened upon the following passage in his Honour's judgment, in which he makes reference to s.92F of the Act:

"My view is that on a consideration of the whole section and the interests to be protected, a pre-condition or (sic) refusal to approve a transaction is that there is held the subsection IV enquiry. That enquiry is concerned with the public interest. The moving party subject to what appears below, is the person seeking approval. There is no prima facie notion, I suggest, that a shareholding acquisition of or beyond the prescribed interest is to be assumed in accord with public interest; but rather the reverse."

Following this passage in his judgment, his Honour referred to the provisions of s.25(3) of the Broadcasting and Television Act which provides that the Broadcasting Tribunal "shall ensure that every person having an interest in the proceedings before the Tribunal at an enquiry is given a reasonable opportunity to present his case . . . ". The judgment then continues: -

"The use of the expression in s.25(3) 'to present his case' does support that the applicant bears the duty of persuasion. However, having regard to the use of the term 'thorough investigation' and the observations made in R. v Australian Broadcasting Tribunal & Ors; ex parte Hardiman & Ors (1979) 29 A.L.R. 289, it is open to question finally whether there is really an onus of proof in the ordinary sense once the A.B.T. is required itself to make such an investigation. "I consider there is no onus of proof in the sense in which that expression is ordinarily used on any party to the enquiry; though inferences may in appropriate circumstances be drawn against a party where, e.g. there is a failure to provide information which might be thought to have been peculiarly within the knowledge of that party."

Read in their entirety, his Honour's reasons do not convey that he was of the opinion that the applicants carried any onus of proof. Nor do they convey that he determined any issue in the case by reference to an onus of proof that he placed on the applicants. The factual matters that seem to have weighed most heavily with his Honour in reaching his decision were not really in dispute. Those matters were that the applicants had no connection with the country areas where Country Television's programmes were broadcast, that Country Television's attraction to Bisley was that it was a good investment in a growth industry, and that Bisley had no expertise in the electronic media industry. His Honour's views on those matters were quite unaffected by any opinion he held as to any evidentiary onus of proof. Thus, even if his Honour had an erroneous view as to where the onus of proof lay, it played no part in his ultimate decision. This submission therefore also fails.

Mr Shand argued that even if his Honour did not hold that the applicants carried an onus of proof in the conventional sense, he nevertheless was of the erroneous view that there was a statutory presumption arising from s.92F(4A)(b) that the acquisition of a prescribed interest in a company holding a television licence was against the public interest. This result was said to flow from his Honour's observation that:

"There is no prima facie notion, I suggest, that a shareholding acquisition of or beyond the prescribed interest is to be assumed in accord with the public interest, but rather the reverse."

The crucial question in the appeal is the meaning of, and importance to be attached to these words. They were the subject of much debate before us. Mr Handley Q.C., who appeared for Country Television, submitted that they were capable of more than one meaning, and perhaps that is so. But I do not think he seriously contended that they were not capable of meaning that the acquisition of 5% or more of the shares in the capital of a company holding a television licence is assumed to be against the public interest. In my opinion it is clear that there is nothing in s.92F or elsewhere in the Act giving rise to a presumption that the acquisition of a prescribed interest is to be deemed to be against the public interest. I did not understand Mr Handley to submit to the contrary. Certainly the words used by his Honour seem to indicate he believed such a presumption existed. With respect, I adhere to the view I expressed in Control Investments Pty. Ltd. v. Australian Broadcasting Tribunal (17.12.81 at p.216) that if, having made inquiry, the Tribunal is left in doubt whether it is necessary to refuse the application in order to maintain the ownership and control referred to in s.92F(4A)(b), then it is under an obligation not to refuse approval. Such an obligation is inconsistent with the notion that there is a presumption that the acquisition of a prescribed interest is deemed to be against the public interest. Mr Handley argued that his Honour did not necessarily intend to convey in the words that he used that there was such a presumption. This may be correct, but I do not think that it can be safely assumed against the applicants that this was the case. Upon such a crucial matter, the applicants are entitled to rely upon the literal meaning of the words used.

The question therefore arises whether the erroneous statement that "there is no prima facie notion . . . that a shareholding acquisition . . . beyond the prescribed interest is to be assumed in accord with public interest; but rather the reverse" amounts to such an error of law as to warrant the setting aside of the decision. I confess that I have not found this question easy to decide. In Vocisano's Case (supra) Barwick C.J. said at p.275:

"In my opinion, before a new trial is ordered in a case where the verdict is in accordance with the evidence, it should be seen that the inadmissible matter has been used by the judge in reaching his verdict."

The same principle was referred to, though with a slightly different emphasis, in Collins v. Minister for Immigration and Ethnic Affairs (1981) 36 A.L.R. 598 at 603 where it was said that an appellant who demonstrates that a matter has wrongly been taken into account by the Administrative Appeals Tribunal is entitled to a redetermination of his application for review unless it can be said with confidence that the Tribunal would have come to the same conclusion in any event.

What has troubled me in reaching a decision on this matter is whether it can be said that the presumption which his Honour believed to exist took any part in his ultimate decision. I was initially of the view that it did not because there is no reference to the presumption at the conclusion of the judgment where his Honour's reasons for rejecting the applications most clearly appear. But upon reflection I do not think it is possible to say that his Honour's belief in the existence of the supposed presumption was not relied upon by him in reaching his decision. Indeed, I think it probable that it was. The critical matter for decision was whether his Honour considered it necessary to refuse to grant approval for the reason referred to in s.92F(4A)(b). The supposed statutory presumption that the transactions for which approval was sought were against the public interest would have been seen as a weighty circumstance to be taken into account in determining whether it was necessary to refuse the applications. It may well have been the determining factor in the ultimate decision. In these circumstances the applicants have established their right to have their applications for review redetermined.

As the matter must go back for redetermination I would add a few additional observations upon two matters argued before us which may well again arise for consideration. In his reasons Lockhart J. rejects the submission that the possibility of control of a company holding a television or broadcasting licence is an irrelevant field of enquiry for the Broadcasting Tribunal under s.92F(4A) and s.90J(4A). I agree that this is so. I am of this opinion because the suitability and fitness of an applicant will always be relevant matters for consideration in an inquiry held pursuant to s.92F(4). One matter which could properly be considered in determining the suitability of an applicant company would be whether it has a policy of seeking to obtain controlling interests in other companies in which it invests. Such company policy, if established, could properly be regarded as bearing upon its suitability as the owner of a substantial shareholding in a licensee company. It was thus appropriate, in the present case, for the learned Deputy President to take into account Bisley's expressed desire to acquire up to 30% of Country Television's capital. But that is not to say that the inquiry was an inquiry into an application for approval of a 30% shareholding in Bisley. It was not. If and when such an application is made, it will have to be determined on its merits having regard to the circumstances which then prevail. For example, it is possible that when such an application is heard and determined relevant policy may have changed or changes may have occurred in the ownership of shares in Country Television. It would not be proper to prejudge such an application by reference to the evidence and submissions in the current application.

I also agree with Lockhart J. that no error of law was made by his Honour in failing to take into account established policy of the Australian Broadcasting Tribunal. In relation to the decisions of the Broadcasting Tribunal which were said to be supportive of the applicants' case, the learned Deputy President said that he had not found them of great assistance. Plainly, this finding cannot be said to be erroneous in law. But, for myself, I would prefer not to express any opinion about the content of any such policy or the weight which should be attached to it. These matters were not fully developed in argument before us and I would not wish to say anything about them which may influence further consideration of the applications when they are redetermined.

I agree with the orders proposed by Lockhart J.