Bond Corporation Holdings Ltd v Australian Broadcasting Tribunal

[1988] FCA 777

Re: BOND CORPORATION HOLDINGS LIMITED; DALLHOLD INVESTMENTS PTY.
LIMITED and ALAN BOND
And: AUSTRALIAN BROADCASTING TRIBUNAL
No. G1403 of 1988
FED No. 777
Broadcasting - Judicial Review - Statutory Interpretation

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Gummow J.(1)

CATCHWORDS

Broadcasting - Broadcasting Act 1942 - Broadcasting (Ownership and Control) Act 1987 - limitations on "cross media interests" - grant of extension of the period referred to in sub-s. 92FAB (9) of the Broadcasting Act 1942 to remedy contravention of the Act - whether the Australian Broadcasting Tribunal has power to grant a further extension.

Judicial Review - Administrative Decisions (Judicial Review) Act 1977 - whether there was an error of law in the construction of the Broadcasting Act 1942 by the Tribunal - whether there was a failure to take account of a relevant consideration, viz. the effect upon the interests of the applicants seeking extension of time of the refusal of that application.

Statutory Interpretation - s. 33 (1) of the Acts Interpretation Act 1901 - statutory powers exercisable from time to time - contrary intention.

Broadcasting Act 1942

Administrative Decisions (Judicial Review) Act 1977

Broadcasting (Ownership and Control) Act 1987

Broadcasting (Ownership and Control) Act 1988

Scarfe v The Federal Commissioner of Taxation (1920) 28 CLR 271

Parkes Rural Distributions Pty. Ltd. v Glasson (1986) 7 NSWLR 332

The Queen v Australian Broadcasting Tribunal; Ex parte 2HD Pty. Ltd. (1979) 144 CLR 45

Minister for Aboriginal Affairs v Peko-Wallsend Ltd. (1986) 162 CLR 24

Minister for Immigration and Ethnic Affairs v Conyngham (1986) 11 FCR 528

Alexandra Private Geriatric Hospital Pty. Ltd. v Blewett (1985) 68 ALR 222

Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd. (1987) 15 FCR 274

Broadbridge v Stammers (1987) 16 FCR 296

Scott v Commissioner for Superannuation (Full Court of the Federal Court, 23 December 1987, unrep., at pp 19-20)

HEARING

SYDNEY

#DATE 14:12:1988

Counsel and Solicitors for P.G. Hely Q.C. and
Applicants: D.K. Catterns instructed by

Blake Dawson Waldron.

Counsel and Solicitors for L.T. Grey instructed by the
Respondent: Australian Government Solicitor

ORDER

Order that there be set aside the decision of the respondent made on 5 December 1988 pursuant to s. 92FAB of the Broadcasting Act 1942 ("the Act") to refuse to entertain the application of the applicants made on 1 December 1988 pursuant to sub-s. 92FAB (10) of the Act for an extension until 30 April 1989 of the period referred to in sub-s. 92FAB (9) of the Act.

Upon the applicants by their counsel undertaking to the Court to make to the Tribunal on or before 6 January 1989 any application they may be advised for an extension beyond 31 January 1989, direct that on or before 31 December 1988, the Tribunal in respect of the said application by the applicants made on 1 December 1988, allow an extension up to and including 31 January 1989 of the period referred to in sub-s. 92FAB (9) of the Act.

Order that the respondent pay the costs of the applicants.

Note: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.

JUDGE1

On 13 May 1988, the solicitors for the applicants wrote to the Chairman of the respondent ("the Tribunal") stating that as the Tribunal was aware, each of the applicants had a prescribed interest in commercial television licence STW9 Perth. The terms "commercial television licence" and "prescribed interest" are defined in the Broadcasting Act 1942 ("the Act"). The letter continued by stating that the solicitors were instructed to give notice to the Tribunal that on 29 April 1988, each of the applicants acquired a prescribed interest in each of "The West Australian" and the "Daily News", newspapers associated with the "service area" of STW9 Perth. The term "the service area" is defined in s. 4 of the Act relevantly as meaning the area to be served pursuant to the commercial television licence.

1. Section 91AAE of the Act provides for the establishment and maintenance by the Tribunal of "the Associated Newspaper Register" in which are entered the names of newspapers which are, for the purposes of the Act, associated with the service area of particular licences granted pursuant to the Act. A "newspaper" is relevantly defined in s. 91 of the Act as meaning a publication that is in the English language, that is published on at least four days in each week and is "sold as a newspaper". A person has a "prescribed interest in a newspaper" if there are applicable to that person the criteria set out in sub-s. 91 (2A) of the Act.

2. The licensee of the commercial television licence STW9 Perth is Swan Television & Radio Broadcasters Limited. This company is the wholly owned subsidiary of Bond Media Limited. A substantial shareholding in Bond Media Limited is held by Bond Corporation Pty. Limited. That company is a wholly owned subsidiary of the first applicant, Bond Corporation Holdings Limited and the majority holding in that corporation is held by the second applicant, Dallhold Investments Pty. Limited, which in turn is controlled by the third applicant, Mr. Bond.

3. On 29 April 1988, a subsidiary of the first applicant acquired directly and indirectly approximately 19.9% of the shareholding in The Bell Group Limited ("The Bell Group"). The Bell Group held (within the meaning of the Act) prescribed interests in the two Perth newspapers. This came about in the following way. The shareholding in Western Mail Operations Pty. Limited was controlled by The Bell Group. Western Mail Operations Pty. Limited owned or controlled all shareholding of West Australian Newspapers Limited (publisher of "The West Australian") and 49.99% of the shareholding of Community Newspapers 1985 Limited. That company owned or controlled the whole of the shareholding of Daily News Pty. Limited (publisher of the "Daily News").

4. Section 92FAC of the Act imposes on a person having a prescribed interest in a commercial television station licence the obligation to notify the Tribunal of the acquisition of a prescribed interest in an associated newspaper. The section reads as follows:
   

92FAC (1) A person who has a prescribed interest in a commercial television licence shall give the Tribunal notice in writing of the acquisition by the person of a prescribed interest in a newspaper associated with the service area of the licence.

(2) The notice under subsection (1) shall be given:

(a) if the acquisition occurs on or after 28 November 1986 and before the commencement of this section - not less than 28 days after the commencement of this section; or

(b) if the acquisition occurs after the commencement of this section - not less than 28 days after the acquisition occurs.

(3) A person who fails to comply with subsection (1) is guilty of a separate offence in respect of each day (including the day of a conviction under this subsection or any subsequent day) during which the failure continues.

The correspondence to which I have referred constituted compliance by the applicants with this provision. But that is not the end of the matter.

1. Section 92FAC is one of the provisions inserted in the Act by the Broadcasting (Ownership and Control) Act 1987. Section 92FAC is one of the provisions in Subdivision C which was added to Division 3 of Part IIIB of the Act. Subdivision C is headed "Cross Media Rules". Section 92FAB imposes limitations on "cross media interests" that may be held by a person having a prescribed interest in a commercial television licence. So far as is relevant to the present proceedings, s. 92FAB is in the following terms:
   

92FAB (1) A person contravenes this section if, and so long as:

(a) the person has a prescribed interest in a commercial television licence; and

(b) the person has a prescribed interest in:

(i) a commercial radio licence that is an area of monopoly within the service area of the commercial television licence; or

(ii)a newspaper that is associated with the service area of the commercial television licence.

(2) For the purposes of subsection (1), a commercial radio licence in which a person has a prescribed interest shall be taken to have an area of monopoly within the service area of a commercial television licence in which the person has a prescribed interest if:

(a) an area (in this subsection referred to as the "overlap area") within the service area of the commercial radio licence is within the service area of the commercial television licence; and

(b) one of the following provisions applies:

(i) the overlap area is not within the service area of any other commercial radio licence;

(ii)the overlap area is within the service area of another commercial radio licence or other commercial radio licences and the person has a prescribed interest in that other licence or in each of those other licences. . . .

(8) This subsection applies to a person in relation to a transaction (whether or not the person is a party to the transaction) if:

(a) the transaction is in respect of shares in a company that publishes a newspaper, or shares in a company that has an interest in a company that publishes a newspaper; and

(b) the person is required by section 92FAC to give the Tribunal notice of an acquisition by the person of a prescribed interest in the newspaper, being an acquisition arising from the transaction.

(9) Where a person contravenes this section as a result of a transaction, being a transaction in relation to which subsection (8) applies to the person, the person is guilty of a separate offence in respect of each day (including the day of a conviction under this subsection or any subsequent day) during which the contravention continues:

(a) if the person is guilty of an offence against subsection 92FAC (3) in relation to the transaction - after the day in respect of which the offence, or the first such offence, is committed and until the day in respect of which the person ceases to be guilty of any further offence against that subsection; or

(b) in any other case (including a case where the person is guilty of an offence against subsection 92FAC (3) in relation to the transaction but has subsequently ceased to be guilty of any further offence against that subsection) - after the end of:

(i) if the transaction took place before the commencement of this section - the period of 6 months after the commencement of this section; or

(ii)if the transaction takes place after the commencement of this section - the period of 6 months after the transaction takes place;

or such further period as the Tribunal, on application, allows by notice in writing served on the person.

(10)A person may apply to the Tribunal for an extension of the period referred to in subsection (9):

(a) if the person is a party to the relevant transaction - before the end of that period; or

(b) if the person is not a party to the relevant transaction - before the end of that period unless the Tribunal is satisfied that:

(i) the person's failure to apply before the end of that period was due to circumstances beyond the person's control or occurred through the person's inadvertence; and

(ii)the person gave notice under section 92FAC as soon as practicable after becoming aware of the contravention.

(11)Where a single transaction results in a person having a prescribed interest in:

(a) both a commercial television licence and a commercial radio licence; or

(b) both a commercial television licence and a newspaper; the person shall be taken, for the purposes of subsections (4), (6), (8) and

(9), to have acquired the prescribed interest in the commercial television licence after acquiring the other interest.

1. I should add a reference to the Broadcasting (Ownership and Control) Act 1988. Some provisions of this Act came into effect on 15 June 1988, the date of the Royal Assent (see sub-s. 2 (1)). Others came into force with retrospective effect to 29 October 1987, and the balance as fixed by Proclamation (sub-ss. 2 (2), (3)). I was informed that as a result, certain provisions have come into effect within the last week. But it was agreed by the parties before me that none of these provisions had any impact upon the present litigation and the rights and obligations with which it is concerned. This was because either the new provisions did not on their face affect the old provisions, or existing rights and liabilities were preserved by the Acts Interpretation Act 1901 ("the Interpretation Act") s. 8. I will proceed accordingly.
   The Applications to the Court

2. By their present application to this Court, the applicants seek under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") review of two decisions made by the Tribunal. The first decision was made on 31 October 1988 and communicated on that day to the solicitors for the applicants. However, the reasons for the decision were provided as late as 28 November 1988. The Tribunal granted an extension of the period referred to in sub-s. 92FAB (9) of the Act until 31 December 1988. The Tribunal refused the application of the applicants for an extension of the period referred to in sub-s. 92FAB (9) until 30 April 1989.

3. The second decision of the Tribunal in respect of which review is sought under the ADJR Act was made on 5 December 1988. The Tribunal refused an application of the applicants made on 1 December 1988, avowedly made pursuant to sub-s. 92FAB (10) of the Act, for an extension until 30 April 1989 of the period referred to in sub-s. 92FAB (9). In communicating to the solicitors for the applicants the second decision, the Tribunal stated that it reaffirmed its view that it did not have power "to grant a second extension", that is to say that the Tribunal regarded its power in the matter as spent upon the making of the first decision on 31 October 1988.

4. The position thus is that as a result of the operation of sub-s. 92FAB (9) of the Act, and unless the Tribunal allows a further period, each of the applicants will be guilty of a separate offence in respect of each day after the end of 31 December 1988 during which there continues contravention of s. 92FAB. As a practical matter, the consequence of the first and second decisions is that the applicants have until 31 December 1988 rather than 30 April 1989 (the date sought by them) to remedy the contraventions of the Act. Persons guilty of an offence under sub-s. 92FAB (9) are liable to directions for divestiture as provided in s. 92N of the Act, to orders made by this Court on the application of the Tribunal, pursuant to s. 92P of the Act, and to prosecution before this Court under s. 92R. Conviction attracts the penalties set out in s. 92S of the Act.

5. The proceedings in this Court commenced on 7 December 1988 and upon the matter coming before me on that day, the parties stressed the degree of urgency flowing from the considerations I have mentioned. Accordingly, I thereupon ordered that the final hearing be expedited and be set down for 12 December 1988; I also gave directions with a view to having the matter ready for hearing within that time.

6. An amended application was, by leave, filed in Court at the commencement of the hearing. Not all the grounds set out therein were pressed. The grounds upon which the application was pressed in respect of the first decision were that the making of the first decision was an improper exercise of the power conferred by the Act because:
   

(i) the Tribunal took into account irrelevant considerations, and

(ii) the respondent failed to take into account relevant considerations, and

(iii) the first decision involved errors of law in that the Tribunal in a number of respects misconstrued the relevant provisions of the Act, and

(iv) there was no evidence or other material to justify the making of the first decision.

1. Review is sought of the second decision on the ground that the decision was not authorised by the Act and involved an error of law, namely misconstruction of sub-s. 92FAB (9) of the Act as not empowering the Tribunal to extend more than once the period referred to in sub-s. (9).
   The Decisions of the Tribunal

2. The first decision by the Tribunal was in respect of an application made on behalf of the applicants by their solicitors on 13 October 1988. A period of extension was sought to 30 April 1989. With the letter there was enclosed a copy of a statement by Mr. F.J. Fennell dated 14 October 1988. Mr. Fennell is an investment banker employed by Wardley Australia Limited ("Wardley"). Mr. Fennell said that over the past couple of years Wardley had been retained on some seven transactions involving the sale of "electronic media assets" in Australia and the transactions were described by him.

1. In support of the application for the period of extension to 30 April 1989, the solicitors for the applicants invited the attention of the Tribunal to para. 17 of Mr. Fennell's statement. This gave reasons for his view that it would most likely take between three and six months from the date of his statement to enter into and complete a transaction which would enable the applicants to observe the limitations on cross media interests provided in the Act. On 21 October 1988, the solicitors for the applicants sent to the Tribunal a further statement, one by Mr. Warren Leslie Jones, the Chairman of Bond Media Limited, dated 20 October 1988. Between 24 February 1984 and March 1987, Mr. Jones was Director of Swan Television & Radio Broadcasters Limited, the licensee of STW9 Perth. The evident purpose of this statement was to deal with the reasons for the delay on the part of the applicants in making their application to the Tribunal until October, having in mind that the six month period in respect of which extension was sought had begun to run on 29 April 1988.

2. The facts revealed by these materials has not been in dispute. In May 1988, the first applicant put to the then boards of The Bell Group and the related corporation Bell Resources Limited ("Bell Resources"), for their consideration, proposals to merge The Bell Group and Bond Media Limited by means of takeover schemes; executives of the first applicant were involved in lengthy hearings and subsequent negotiations with The National Companies and Securities Commission. There was at this stage no representation of the first applicant on the board of directors of The Bell Group.

3. The first applicant announced on 5 June 1988 a takeover offer for the share capital of the Bell Group Limited and in the Part A Statement dated 13 July 1988, the first applicant acknowledged that as it wished to retain the newspaper interests, it had a six month period from 29 April 1988 within which to relinquish the prescribed interest in the commercial television licence STW9. On 27 July 1988, following purchases on market after 13 July 1988, the first applicant became entitled to approximately 43% of the issued share capital of The Bell Group. On 2 August 1988, Mr. Mitchell and Mr. Oates, having resigned from the Board of the first applicant, were appointed to the Board of The Bell Group Limited. Wardleys were retained on 12 August 1988 to deal with the disposal of STW9, Perth.

4. On 27 August 1988, the offer of the first applicant closed and it was then entitled to 68% of the issued capital of The Bell Group. At no time prior to the appointment of Messrs. Mitchell and Oates to its Board did The Bell Group make any decision to dispose of its prescribed interest in the relevant newspapers.

5. On 27 October 1988, that is to say shortly before the six month period would expire if no extension were allowed by the Tribunal, the partner of the applicants' firm of solicitors with the conduct of the matter was contacted by an officer of the Tribunal, Mr. Reitano, who stated that the Tribunal would like him to attend a conference at which at least Mr. Fennell and Mr. Jones should be present. The reason given was that the Tribunal "wants to explore in greater depth your application". On the afternoon of 27 October 1988, a conference was held at the offices of the Tribunal. Those who attended included the solicitor in question, Mr. Jones and Mr. Fennell. Those present on behalf of the Tribunal included Mr. Westerway (a Member) and Mr. Reitano.

6. What Mr. Reitano referred to as the "period of grace" expired on 29 October 1988, a Saturday. In reliance upon the provisions of the Interpretation Act, the Tribunal made its decision on the following Monday 31 October 1988.

7. In the days and weeks following 31 October 1988, there was a number of conversations between the applicant's solicitor and Mr. Reitano in which the solicitor endeavoured to elicit from the Tribunal the statement of its reasons. As I have said, the Tribunal delivered its report on 28 November 1988.

8. The Tribunal stated in the Report that it had recently considered several requests for extensions of time "beyond the six months statutory period of grace" for persons to comply with the ownership and control provisions of the Act. On 27 May 1988, the Tribunal had published as Case Study 1/88 a Report to provide guidelines for future applicants. It is apparent from the treatment of the applications in the present case that the Tribunal was concerned to apply the guidelines. The guidelines were set out in para. 8 of the Tribunal's Report in the following terms:
   

8. (a) The grant of an extension of time, in addition to the statutory six month period of grace, is entirely at the discretion of the Tribunal. This discretion will not be exercised unless the applicant can clearly show that the necessity for an extension is supported by the circumstances of the particular case.

(b) Written application should be made well before the expiration of the period of grace. It is in the interests of those who may require an extension of time to keep the Tribunal informed well in advance of relevant developments. If the application is left to the last moment reasons which explain the timing of its lodging should also be provided.

(c) Full details on (sic) the steps taken to remove the contravention must be provided in the application. Generally, commercially sensitive information, including names of parties involved in sale negotiations, will be required. An application for restricted access may accompany the supply of such information.

(d) An application for an extension of time must be for a specified period.

(e) Only one extension of time, when justified, can be granted by the Tribunal. The Tribunal has no power to grant further extensions.

The crucial passages in the Tribunal's reasoning appear from paras. 20, 21, 22, 23 and 24 of its Report. These are in the following terms:

20. The material provided indicated that the applicants had been aware for many months of the cross media ramifications of the acquisition of 19.9% of Bell. As it had been decided not to dispose of the two newspapers, other options to remove the contravention required exploration. On 12 August 1988, Wardley was appointed by Bond Media to advise on the sale of STW. The Information Memorandum on STW was not finalized until early October 1988.

21. The main thrust of the argument presented to the Tribunal was that, because of the complex commercial arrangements involving the Bond media group and the fiduciary responsibility of the Bond Media board, it had not been possible to move more quickly to remedy the contraventions.

22. The Tribunal does not accept this proposition for the following reasons:

(a) page 2 of the Information Memorandum (prepared by Wardley) states that prior to the sale of Swan, all assets unrelated to the broadcasting operations of STW, (including the satellite earth station), will be transferred to other members of the Bond group. Intragroup loans will be capitalised or repaid. When the application was lodged these important steps had not yet occurred even though they are largely under the control of Bond Media. Shares could easily be transferred to other companies within the group.

(b) Bond Media is a subsidiary of BCH, (the first applicant) and cannot undertake any course of action without regard to the views of its ultimate owners. Persons such as BCH, Dallhold and Mr Alan Bond, who hold prescribed interests in broadcasting through various separate listed companies, are able to act and cannot evade their responsibilities under the Act by transferring responsibility to Bond Media.

(c) Although approaches had been made from interested purchasers, negotiations for the sale of STW were still not at an advanced stage by the end of the statutory period of grace. It is not at all clear why a further six months would result in a quickening of the leisurely tempo of these negotiations.

23. On 31 October 1988, after considering the material presented to it, the Tribunal extended the period referred to in s. 92FAB (9) until 31 December 1988. After that date the contravention of s. 92FAB by BCH, Dallhold and Mr Alan Bond would amount to an offence. In reaching this decision, the Tribunal particularly took into account the comments made by applicants referred to in paragraphs 20 and 21. The Tribunal was not convinced that they had done all within their power to resolve the contravention.

24. Nor was it convinced that a further six months was required to dispose of STW. Keen vendors have sold broadcasting licences in considerably less time. The Tribunal does not have a responsibility to consider commercial advantage to applicants who are in contravention of the Act. When, for whatever reasons (including its own commercial decisions) sale of an asset is the only means available to an applicant to remove a contravention, there is no reasonable cause for dilatoriness or delay.

1. On 1 December 1988, the applicants' solicitors wrote to the Tribunal stating, inter alia, that steps were further advanced towards the disposal of the prescribed interests in STW9 by the applicants and whilst Heads of Agreement might be executed in the relatively near future, such agreement might well be subject, inter alia, to provision of finance; it was most unlikely any such agreement would be completed by 31 December 1988. Accordingly, an extension was sought until 30 April 1989. Reference was then made to para. (e) of the guidelines. As I have said, the Tribunal then, on 5 December, reaffirmed its view that it does not have the power to grant a second extension. Evidence before the Court indicates that the present best estimate for completion of any agreement as described above is the end of February 1989.
   The Further Extensions Point

2. I have already set out the text of para. (e) of the guidelines. This was applied, together with the other guidelines in making the first decision, but was of crucial importance to the second decision. In my view, the applicants have made out their case that para. (e) reflects an error of law in construction of the Act. Putting to one side further consideration of the first decision, the result is that they succeed in their claim for review of the second decision.

3. I turn to give my reasons.

4. Plainly, an application may be made to the Tribunal in a case such as the present within the period of 6 months after the relevant transaction takes place. But assume that application is unsuccessful and no further period is allowed, or what is allowed is a period that falls short of that sought by the applicant. Assume further that, still within the 6 months period, a second application is made. Is that second application competent or was the power of the Tribunal spent when it determined the first application?

5. Sub-s. 33 (1) of the Interpretation Act produces the result in its application to s. 92FAB of the Act that the power of the Tribunal to allow a further period within the meaning of sub-s. 92FAB (9), may be exercised from time to time as the occasion requires, unless the contrary intention appears. An example of such a contrary intention is provided by the legislation considered in Scarfe v The Federal Commissioner of Taxation (1920) 28 CLR 271 at 275-276, per Isaacs J. Where there is no contrary intention, the power certainly may be exercised so as to add to or reverse the result of the previous exercise, for example, and in the legislative setting involved here, by adding to the further period or periods already allowed, or reversing a previous refusal to allow any further period by now allowing a further period. It is not necessary for the purposes of this case to decide whether the later exercise of the power might be exercised adversely to the applicant by, for example, reversing the result of the previous exercise of the power to the extent of removing the unexpired portion of a period previously allowed: cf. Parkes Rural Distributions Pty. Ltd. v Glasson (1986) 7 NSWLR 332 at 335-336, per Glass JA.

6. But is there in the Act the relevant contrary intention? Are there any provisions in the Act which have, individually or cumulatively, a controlling or dominating effect such as to displace what otherwise would be the operation of sub-s. 33 (1) of the Interpretation Act upon s. 92FAB of the Act? In my view, there is manifested no such contrary intention. The provisions of the Act imposing limitations on the "cross media interests" that may be held by a person having a prescribed interest in a commercial television licence achieve the perceived purpose they seek to advance by requiring in cases such as the present the taking of steps to bring to an end the contravention of s. 92FAB, on pain of attracting the sanctions I have described, including prosecution. Sub-s. 92FAB (9) renders persons guilty of separate offences in respect of which a contravention of sub-s. 92FAB (1) continues. The power of the Tribunal to entertain more than one application for a further period, as described, and to exercise that power favourably to an applicant in the manner I have described, evinces an intention to provide a safeguard against what might otherwise be a harsh operation of the legislation; there is displayed no contrary intention to the application of sub-s. 33 (1) of the Interpretation Act.

7. But what if the second or later application is made to the Tribunal after the expiry of the period of 6 months after the transaction takes place, but within the term of a current further period already allowed by the Tribunal? That is the present case. Granted the power may be exercised favourably to the applicant from time to time, as indicated by sub-s. 33 (1), what, on the proper construction of the Act, is the duration of the period within which the power may be so exercised from time to time?

8. The party may apply before the end of "that period": sub-ss. 92FAB (10) (a), (b). "That period" is "the period referred to in subsection (9)", as is indicated by the opening words of sub-s. 92FAB (10). This may suggest that is but one "period" mentioned in sub-s. (9), whereas in truth the term appears three times. The difficulty disappears if the period referred to in sub-s. (9) is read as that currently applicable to the applicant and thus the period to which he seeks an extension. The applicant must apply before the end of the current period, but that current period may be either the initial period of 6 months identified in sub-paras. (i) and (ii) of para. (b) of sub-s. (9), or a period which is the product of one or more successful applications to the Tribunal for allowance of a further period.

9. For these reasons, para. (e) of the guidelines displays an error of law, and that this error is a fatal defect in the second decision under review.
   The First Decision

10. Paragraph (a) of the guidelines says that the discretion of the Tribunal to grant an extension of time in addition to the "statutory six month period of grace" will not be exercised "unless the applicant can clearly show that the necessity for an extension is supported by the circumstances of the particular case". The applicants submit that this imposes a burden upon an applicant for extension of time which overstates the position by suggesting a particular onus is carried by an applicant. Rather, the applicants submit, the Tribunal has to be satisfied that in the circumstances it is proper to grant an extension of time for a particular period.

11. I accept this submission. The error of law involved in para. (a) finds its way into the expression of conclusions by the Tribunal in paras. 23 and 24 of its Report. It is there said that the Tribunal was not "convinced" first that the applicants had done all within their power to resolve the contravention, and secondly that a further 6 months was required to dispose of STW9.

12. Sub-s. 92FAB (9) does not specify any criterion to be applied by the Tribunal deciding whether or not to allow an application for a further period within the meaning of the provision. Where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of discretion are similarly unconfined, except insofar as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision maker may legitimately have regard: The Queen v Australian Broadcasting Tribunal; Ex parte 2HD Pty. Ltd. (1979) 144 CLR 45 at 49-50. Where the ground of administrative review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the Court will not find that the decision maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act; further, not every consideration that a decision maker is bound to take into account, but fails to take into account, will justify the Court setting aside the impugned decision and ordering that the discretion be re-exercised according to law: Minister for Aboriginal Affairs v Peko-Wallsend Ltd. (1986) 162 CLR 24 at 40.

13. It is with these principles in mind that I turn to the further grounds upon which the applicants sought review of the first decision.

14. The applicants complained of the terms of guideline (b). This states that written application should be made well before the expiration of the "period of grace", that the Tribunal should be kept well informed in advance of "relevant developments" and that reasons which explain the timing of any last minute application should be provided. In my view, it is quite open for the Tribunal to indicate to applicants that reasons should be furnished explaining the timing of last minute applications. Nor, in my view, is it impermissible for the Tribunal to take into account whether an applicant has kept it informed well in advance of relevant developments. It may, in the circumstances of a particular case, be impracticable to make an application well before the expiration of the 6 month period. But I do not read the first element in guideline (b) as imposing a requirement not contained in the statute; it is an expression of preference which, to my mind, the Tribunal properly may have. Accordingly, I see no substance to the criticism directed at ground (b) of the guidelines.

1. I turn now to the criticisms directed at particular passages in the Report dealing with the conclusions reached by the Tribunal with respect to the particular application before it.

2. In para. 12 of the Report it is said that the grant of extension does not remove from the persons in contravention the responsibility for compliance. This, one should have thought, was to state the obvious. However, it is also said in para. 12 that the Tribunal "does not see its role as aiding persons to avoid compliance with the Act or to secure commercial advantages". Then, in para. 24, the concluding paragraph of the Report, it was stated that the Tribunal "does not have a responsibility to consider commercial advantage to applicants who are in contravention of the Act". From this proposition and the curious observation that keen vendors have sold broadcasting licences "in considerably less time" than that sought of the Tribunal by the applicants, the conclusion apparently follows that where sale of an asset is the only means available to an applicant to remove contravention, there is no reasonable cause for "dilatoriness or delay".

3. This, to my mind, misconceives the nature of the discretion reposed in the Tribunal by the provision of the Act in question. I have already referred to the evident view of the public interest which underlies the provisions imposing limitations on the holding of "cross media interests" by a person having a prescribed interest in a commercial television licence. Sub-s. 92FAB (9) makes provision as to particular offences for contravention in respect of "a period of grace" defined in such a way as to include as an integer a further period allowed by the Tribunal on application of the person in question. By creating this discretion and vesting it in the Tribunal, the legislature, in my view, was providing a practical means of adjustment in particular cases between, on the one hand, the public interest in the observance of the limitations on cross media interests held by a person having a prescribed interest in a commercial television licence, and, on the other, the interest of that person (which after all may be a public company, with a large number of shareholders, and diverse commercial activities, or a related corporation of such a public company) in complying with the requirements of the legislation but within such time as enables it to dispose of assets which have to be sold in an orderly fashion and for as good a price as can be obtained. It is not a question of the Tribunal aiding persons to avoid compliance with the Act, nor is it a question of the Tribunal securing commercial advantages for persons in contravention of the provisions of the Act. Rather, it is a question of the Tribunal in the circumstances of a particular case considering both the broad descriptions of interest, which I have described, and then deciding whether in the circumstances it is proper to grant the extension for a particular period.

4. It follows, in my view, that the Tribunal fell into error in failing to take into account a relevant consideration which they were bound to take into account, namely the effect upon the interests of the applicant seeking extension of time of the refusal of that application.

5. Next, the applicants pointed to passages in paras. 21, 22 and 23 of the Report of the Tribunal. It is there said by the Tribunal that it did not accept the proposition of the applicants that it had not been possible to move more quickly to remedy the contraventions, and that the Tribunal was not convinced that the applicants "had done all within their power to resolve the contravention" (para. 23). Insofar as the Tribunal is there requiring of an applicant that before obtaining a favourable exercise of the Tribunal's discretion, the applicant must show that it has done all within its power to resolve the contravention, then, in my view, the Tribunal is imposing a requirement which does not flow from the nature of the discretion reposed in it by the Act. No doubt, the steps that have been taken, and the degrees of promptitude of those steps, are matters that properly may be taken into account in deciding whether, in the circumstances, it is proper to grant the extension. But it is going further and beyond the realm of the permissible to say to an applicant that it may not succeed because it has not convinced the Tribunal that it has done all within its power to resolve a contravention. No doubt, it is always within the power of an applicant to sacrifice its interests and part with what might be a very valuable asset in haste and for a very low price. But to speak as if this is required of an applicant involves the Tribunal in turning away from the task of adjusting within the exercise of the statutory discretion the conflicting interests that I have described.

6. Finally, I should refer to a statement in para. 22 (c) of the Report that "it is not at all clear why a further six months would result in a quickening of the leisurely tempo of these negotiations". I have outlined from the undisputed factual material before the Tribunal what took place in the six month period commencing on 29 April 1988. What is there said is sufficient to indicate the complexity of the commercial dealings that were involved. In particular, it is to be emphasised that whilst various options were open, as a matter of logic, to resolve the question of contravention, the pursuit of one or other of those options was bound up with the fate of the evolving relationship between what I might call the Bond Group and the Bell Group. Only in late August 1988 with the success of the takeover offer made by the first applicant was the position really clarified. The activity that was going on between April and the end of August strikes me as frenetic rather then leisurely and provides an explanation as to why by the end of the "statutory period of grace" negotiations for the sale of STW9 were still not at an advanced stage. That the negotiations had not come to fruition is the reason why the extension of time is required not, of itself, a reason for refusing it and in this sense the Tribunal took into account an irrelevant consideration.

7. Accordingly, in reaching the first decision, the Tribunal was distracted from a proper consideration of the application because:
   

(i) it addressed the wrong question, namely whether a "once only" extension might be granted,

(ii) it applied "guidelines" which themselves included errors of law,

(iii) it did not ask whether it was satisfied that in the circumstances it was proper to grant to extension, the circumstances including the public interest to which s. 92FAB seeks to give effect and the private interests of the particular applicants.

1. It remains to be determined what relief is appropriate in respect of both decisions.
   The Appropriate Relief

2. Although the applicants have succeeded in showing that the first decision is subject to review, it must be remembered that a further period was allowed by the Tribunal, albeit a shorter one than that sought. Further, whilst the applicants did inform the Tribunal that they reserved their rights in respect of the first decision, in a practical sense the second application sought to build upon the first by obtaining an extension for a period beyond 31 December 1988. By reason of its repetition of the error of law found in para. (e) of the guidelines, the Tribunal in effect refused to deal with the second application and refused to act upon the information supplied by the applicants concerning the proposed entry in the near future into Heads of Agreement.

3. In the second application, the applicants pressed for an extension of time until 30 April 1989. All the relevant considerations indicate that, freed from the influence upon it of errors of law, the Tribunal should have exercised its discretion on the second application in favour of the applicants, even though one could not say that the Tribunal was left with no residual discretion at all, in the sense described by Sheppard J. in Minister for Immigration and Ethnic Affairs v Conyngham (1986) 11 FCR 528 at 541, and even though there would be ground for debate as to the length of the period of further extension. But a decision that the period should not run at least to 31 January 1989 would, in all the circumstances, have been "manifestly unreasonable" within the sense explained by Mason J. in Minister for Aboriginal Affairs v Peko-Wallsend Ltd. (1986) 162 CLR 24 at 41-42.

4. The legitimacy of the so-called "Wednesbury doctrine" has been called into question on the ground that the doctrine envisages a ground of review by the application of judicial and extra-statutory values dignified by their representation as expressing general morality and common sense: Allan, "Pragmatism and Theory in Public Law", (1988) 104 LQR 422 at 427-429, 431-432. In Australia, these difficulties largely are avoided by the manner in which the doctrine is formulated by Mason J. in the passage to which I have referred. See also Alexandra Private Geriatric Hospital Pty. Ltd. v Blewett (1985) 68 ALR 222 at 238-239 per Sheppard J. Nevertheless, I am conscious of the emphasis in various Full Court decisions as to the caution necessary in reaching a conclusion such that I have expressed above: Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd. (1987) 15 FCR 274 at 308-309; Broadbridge v Stammers (1987) 16 FCR 296 at 300-301.

5. Given the expiration of the present period of extension on 31 December 1988, the intervening holiday period, and the consequences of contravention of the Act, the present matter is one of substantial urgency. There was some discussion before me on 12 December as to the speed with which the Tribunal might be able to act further in the matter if this became necessary. Before me in Chambers on 13 December, junior counsel for the applicants unsuccessfully sought to reopen the case for his clients to make further submissions on this aspect of the case. There is no doubt that the Tribunal would move promptly, but preparation of reasons for any decision might take some time.

6. In its discretion, the Court may make an order directing the Tribunal to do any act or thing, the doing of which the Court considers necessary to do justice between the parties: ADJR Act, sub-s. 16 (1) (d). In an appropriate case where a decision is set aside, an order under this provision may be made compelling a decision of a particular kind: see Conyngham's Case (supra at 536-538) and cf. Scott v Commissioner for Superannuation (Full Court of the Federal Court, 23 December 1987, unrep., per Beaumont and Gummow JJ. at pp 19-20). The making of an order under sub-s. 16 (1) (d) may be conditioned upon the applicant giving an appropriate undertaking to the Court.

7. In the present case, I have come to the conclusion that the appropriate relief is as follows:
   

(1) Order that there be set aside the decision of the respondent made on 5 December 1988 pursuant to s. 92FAB of the Broadcasting Act 1942 ("the Act") to refuse to entertain the application of the applicants made on 1 December 1988 pursuant to sub-s. 92FAB (10) of the Act for an extension until 30 April 1989 of the period referred to in sub-s. 92FAB (9) of the Act.

(2) Upon the applicants by their counsel undertaking to the Court to make to the Tribunal on or before 6 January 1989 any application they may be advised for an extension beyond 31 January 1989, direct that on or before 31 December 1988, the Tribunal in respect of the said application by the applicants made on 1 December 1988, allow an extension up to and including 31 January 1989 of the period referred to in sub-s. 92FAB (9) of the Act.

1. I make no order with respect to the first decision, that of 31 October 1988. I will hear the parties on costs.