Independent F.M. Radio Pty Ltd v Australian Broadcasting Tribunal
[1989] FCA 171
•21 APRIL 1989
Re: RICH RIVERS PTY LTD AND INDEPENDENT F.M. RADIO PTY LTD
And: AUSTRALIAN BROADCASTING TRIBUNAL and GOULBURN VALLEY
BROADCASTERS PTY LIMITED
Nos. NG1047 and 1057 of 1988
FED No. 171
Administrative Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Davies J.(1)
CATCHWORDS
Administrative Law - judicial review - broadcasting - decision of Australian Broadcasting Tribunal as to which applicant for an FM radio licence was the most suitable - whether errors of fact - whether unreasonable - natural justice - relevant/irrelevant considerations - function of Court in judicial review.
Administrative Decisions (Judicial Review) Act 1977 (Cth) s.5
Broadcasting Act 1942 (Cth) ss.25, 82, 83
Akers v. Minister for Immigration, Local Government and Ethnic
Affairs (Unreported 1988, Federal Court per Lee J.)
Chief Constable of North Wales Police v. Evans (1982) 1 WLR 1155
Khan and Ors v. Minister for Immigration and Ethnic Affairs (Unreported 1987, Federal Court per Gummow J.)
Minister for Aboriginal Affairs and Anor v. Peko-Wallsend Limited and Ors (1985) 66 ALR 299
Prasad v. Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Puhlhofer v. Hillingdon Borough Council (1986) AC 485
Ruangrong v. Minister for Immigration and Ethnic Affairs (Unreported 1988, Federal Court per Davies J.)
Sean Investments v. MacKellar (1981) 38 ALR 363
Singh and Anor v. Minister for Immigration and Ethnic Affairs (1987) 15 FCR 4)
Television Capricornia Pty Limited v. Australian Broadcasting Tribunal and Ors (1986) 70 ALR 147
Waterford v. The Commonwealth (1987) 61 ALJR 350
Western Television Limited v. Australian Broadcasting Tribunal (1986) 12 FCR 414
HEARING
SYDNEY
#DATE 21:4:1989
Counsel for the applicant: Mr J. Spigelman QC with Mr K.V. Taylor
Solicitors for the applicant: Boyd House & Partners
Counsel for the first Mr A. Robertson
respondent:
Solicitor for the second Australian Government Solicitor
respondent:
Counsel for the second Mr L. Grey respondent:
Solicitors for the second Corrs Pavey Whiting and Byrne respondent:
ORDER
The applications be dismissed with costs.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
This is an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth)("the ADJR Act") for orders of review with respect to a decision of the Australian Broadcasting Tribunal ("the ABT") issued in June 1988. The ABT had held an inquiry into the grant of a commercial FM radio licence to serve the Shepparton service area. Its decision read, inter alia:-
"Having regard to the commercial viability of 2QN, the Tribunal decides that it is in the public interest to grant a licence of the kind contemplated by the Minister. A licence for a commercial FM radio service in the Shepparton area in Victoria is to be granted to Goulburn Valley Broadcasters Pty Ltd from a date to be determined."
The decision also specified four conditions proposed for the licence.
One application for review has been lodged by Independent FM Radio Pty Limited ("IFM") and another by Rich Rivers Radio Pty Limited ("Rich Rivers"). The interests of IFM and Rich Rivers are different. Rich Rivers opposed the grant of any additional licence for the Shepparton service area. IFM was one of the four applicants for the FM radio licence, Goulburn Valley Broadcasters Pty Ltd ("GVB") being the successful applicant. As there was only one report and decision issued by the ABT, and as Rich Rivers' application and IFM's application have elements in common, the applications have been heard together and I shall make one order. However, I express my reasons in each application separately.
The inquiry of the ABT was conducted under the Broadcasting Act 1942 (Cth). Section 82(1)(a) of the Broadcasting Act provides:-
"82.(1) Before a licence is granted (otherwise than by way of renewal) the Minister shall publish, in the Gazette and in a newspaper or newspapers, if any, circulating in the area concerned, a notice -
(a) specifying the category of licence and setting out an outline of -
(i) the service specifications to which it is proposed the licence is to be subject; and
(ii) the technical conditions proposed to be included in the licence warrant;"
Section 82 also provides that interested persons may lodge with the Tribunal applications for the grant of the licence so advertised. The term "service specification" is defined in s.80(1) and includes a specification of the service area of the licence.
On 1 May 1987, the Minister for Communications published a notice under s.82 inviting applications for a licence for a commercial FM radio service for the Shepparton service area. Five applications for that licence were lodged with the ABT including applications from IFM and GVB. One of the five applications was subsequently withdrawn. Rich Rivers did not apply for a licence but submitted to the ABT that its interests as the holder of a radio licence in the Riverina service area would be prejudiced by the grant of the proposed licence.
On the lodgment of the applications for the grant of the licence, the ABT was obliged by s.17C to hold an inquiry into the requested exercise of its power. Section 25 of the Broadcasting Act provides:-
"25.(1) The Tribunal shall, without regard to legal forms and solemnities, make a thorough investigation into all matters relevant to an inquiry under this Division, and may give all such directions and do all such things as the Tribunal considers are necessary or expedient for the expeditious and just hearing of the inquiry.
(2) The Tribunal is not bound by legal rules of evidence and may inform itself on any matter in such manner as it thinks fit.
(3) Subject to section 19, the Tribunal shall ensure that every party to proceedings before the Tribunal at an ordinary inquiry is given a reasonable opportunity to present his or her case."
The conduct of the inquiry was described by the ABT in its report as follows:-
"1.8 The Tribunal conducted two conferences during this inquiry. The first was a procedural conference held in November 1987 dealing with administrative matters and the inquiry directions. 1.9 The second conference was held in Shepparton between 19-22 April 1988 after the documentary phase of the inquiry (see directions 11-19 in Appendix C) had been completed. For the first two days of this conference, the Tribunal heard from the applicants' directors and chief executives on the key features of their applications, as described in the documentation already submitted. The Tribunal then put questions to each applicant on matters arising from all documentation to date, including: - the history of the application and the applicant, including an explanation of the corporate and management structure of the applicant
- the background and areas of responsibility of directors and senior executives - significant features of the application, including programming policies and proposals and financial projections.
1.10 The Tribunal then heard from Rich Rivers Radio Pty Ltd and put questions to it on its submission.
1.11 Having heard from each party, the Tribunal held a brief meeting with the representatives or agents of each party to hear whether any of them considered it necessary or desirable to hold an oral hearing in accordance with regulation 14. Two of the parties informed the Tribunal that it was not desirable or necessary to have an oral hearing nor to proceed to cross-examination. The other three parties agreed that at this stage, it was not necessary to proceed to an oral hearing; however, if the Tribunal were to form a preliminary view, after reviewing all the evidence, that a licence of this kind should not be granted, having regard to 2QN's commercial viability, then the conference should be reconvened to allow cross-examination of Rich Rivers. The Tribunal ruled in accordance with that submission.
1.12 Final submissions were presented on the last day of the conference, with the order of the parties being reversed."
In its consideration of the grant of the licence, the ABT was governed by s.83 of the Broadcasting Act which provides, inter alia:-
"(6) The Tribunal shall not refuse to grant a licence to a person unless - ...
(c) in the case of a licence other than a remote licence - it appears to the Tribunal, having regard only to the following matters or circumstances, that it is advisable in the public interest to refuse to grant the licence to the person:
(i) it is not satisfied that the person -
(A) is a fit and proper person to hold the licence;
(B) has the financial, technical and management capabilities necessary to provide an adequate and comprehensive service pursuant to the licence or, in the case of a re-broadcasting licence or a re-transmission licence, to provide the service to which the licence relates; and
(C) is otherwise capable of complying with the conditions of the licence; ...
(iii) where the service area of the licence overlaps the service area of another licence or other licences - the need for the commercial viability of the service or services provided pursuant to the other licence or other licences; ...
(9) Where there are 2 or more applicants for a licence, each of whom is a person to whom, but for this sub-section, the Tribunal would be required to grant the licence, the Tribunal shall grant the licence to the most suitable applicant."
In its report, the ABT found that all four applicants met the statutory criteria and qualified for the grant of a commercial FM radio licence for the Shepparton service area. The ABT then turned its attention to which applicant was the most suitable and said that this question was to be determined by ascertaining "which applicant can best be relied upon to provide a service which most closely accords with the public interest?" The ABT came to the view that, of the four applicants, IFM and GVB were the most suitable.
With respect to programming, the ABT found:-
"8.8 IFM, GVB and SBS all conducted a considerable amount of research which identified the same needs of the audience in the service area, and their programming proposals are designed to meet those needs. The primary and secondary target audiences of these three applicants are similar, as are the music proposals and general formats which include comprehensive news and community information services. All three applicants have proposed high levels of Australian music ranging between 30% and 40%. ...
8.11 IFM's proposals were developed by Mr Wheatley, Mr Simpson and Ms Hourigan and show a dependence on the metropolitan FM model. IFM proposes to employ Ms Hourigan as its program manager if granted the licence. She is experienced in the programming of metropolitan music stations, and at the conference displayed a knowledge of the established Australian music industry. However, the Tribunal was disappointed by her apparent lack of knowledge of the independent music industry, despite IFM's proposals to incorporate independent labels into its Sunday night programming. Ms Hourigan was also not able to articulate what criteria new talent had to meet to get airplay and none of the Board had any detailed knowledge of the music talent in the area. No concrete proposal was provided on how new talent could be heard regularly throughout the daytime playlist. The Tribunal is concerned that IFM proposes to relegate new Australian releases to the 'grave-yard' hours of 9pm to midnight on a Sunday. 8.11 IFM's proposals were developed by Mr 8.12 GVB's music programming is more adventurous than either IFM's or SBS's. The Tribunal was impressed by Mr Debelle's knowledge of the Australian music industry, especially of his understanding of the problems of local bands, the way the independent recording industry operates, and his contacts. It also believes that the 'Give us a Break' segment identified by Mr Cameron in which it is proposed that new Australian releases and independent recordings will be played 3 to 6 times throughout the day as part of the normal playlist, provides more encouragement to Australian creative resources than only providing a ghetto for this music and burying it in a Friday or Sunday evening program. GVB has also realistically appraised the extent of local talent, and developed achievable proposals with regard to the Australian creative resources side of the undertaking. Through Bruce Adderley's studios, GVB will be able to help any good local bands record their music in a professional manner. Colin Cameron also has a track record in encouraging local talent.
...
8.16 IFM intends to employ one full-time journalist at the station and three stringers in other parts of the service area. It also proposes to have an arrangement with the local papers to supply leads. It is not proposed to provide a local news service at weekends. 8.17 GVB intends to begin broadcasting local news with the employment of a full-time journalist at the station and five stringers throughout the region; a second full-time journalist will be employed in year 2. No weekend bulletins are proposed at this stage. ...
8.19 In selecting the most suitable applicant to provide a service which most closely accords with the public interest it is apparent that GVB's knowledge of, and commitment to, Australian music and encouraging Australian creative resources; its knowledge of the local talent; and its programming proposals in this area are superior to the other applicants. Its commitment to local news is comparable to IFM and both IFM and GVB proposed to employ a community service officer, IFM's would be fulltime whereas GVB's would be up to 30 hours a week. The SBS news service is not comparable to the other two applicants and although the employment of three journalists and a weekend news service produced by the station might indicate the provision of a better local news service there was no evidence to show that this would be the case. 8.20 GVB proposes to have automated assisted programming from 2.00pm to 6am and this is regarded by some applicants as a factor which mitigates against an adequate and comprehensive service. 8.21 The use of an automated assisted service as described by GVB however provides a method by which announcers pre-record their announcements so that they do not have to spend most of their time listening to the music as they play it. There was some opinion expressed about how acceptable this is to the audience but no research was provided to show that this type of programming is not acceptable.
8.22 The SBS service was judged to be less suitable than the services proposed by IFM and GVB. On balance their services were judged to be equal."
I should pause at this stage to say that when two applicants put forward acceptable proposals, the task of the ABT to decide between them may be a difficult one and the decision may turn on a very small point. Nevertheless, it is preferable, if it can be achieved, that the decision turn upon the matters which directly impact on the public, that is to say upon matters of programming and managerial ability and service rather than upon matters which are the concern primarily of the licensee. The ABT said that it judged IFM and GVB equal in their programming and service proposals. Yet there were differences between them and the service which the public would obtain depended upon which of IFM or GVB was chosen.
Thus, the management of IFM was closely connected with the Melbourne AM Station 3UZ and with the Melbourne FM Station EON. The proposed Managing Director, Mr C.I. Simpson, had been a foundation director of EON-FM and was currently Managing Director of 3UZ. The proposed Program Manager, Ms Hourigan, was experienced in the programming of metropolitan music stations. Paragraph 8.11 of the report states:-
"8.11 IFM's proposals ... show a dependence on the metropolitan FM model."
IFM therefore proposed what it considered to be a tried and successful programme format. IFM proposed for the station the ordinary facilities and staffing which a successful FM radio station would require. IFM proposed to raise by way of capital the funds required for the establishment of the station and it had arranged for overdraft and leasing facilities should it require them. IFM made its calculations of advertising revenue on the footing that, within 5 years, its advertising revenue would equal that of the existing Shepparton AM station, 3SR. From this it may be assumed that IFM looked forward to having, within 5 years, an audience equal to that of 3SR. In brief, IFM proposed to establish an FM radio station which would attract as great an audience as that of Shepparton 3SR and it proposed to adopt a programming format based upon the experience of stations such as 3UZ and 3EON.
GVB proposed a more adventurous, perhaps even an experimental approach. In addressing the ABT, Mr Andrew Fairley, the Chairman of GVB, said:-
"We steered clear of the common trap of superimposing a model FM station built on city guidelines, and then as a consequence having to go out and justify a revenue package to justify such a venture.
...
In Shepparton, we have no such capital city identification, we are a soulless, regional market with all the characteristics that a regional market has in terms of revenue capabilities. In putting our application together, this company more than any other has been conscious of the distinction between a large market with capital city ideas, format and technology and the needs of a service covering a large regional city, a large rural area and a number of smaller population centres.
I believe that we have addressed the fundamental issues which are peculiar to regional markets in our application (and) have not been seduced to recreate in the country what others would see as being relevant to the city. In this sense the decision as to which applicant the licence will be issued to here sets the parameters for other regional markets which are yet to be called in this licence process that will be an ongoing process in other markets. The question is whether or not applications for regional radio services are to be identified with the high cost, high spending models which are relevant for capital cities and which all other applicants in Shepparton have pursued, or whether the limitations of revenue in truly regional markets are taken into account."
GVB proposed a music programme that was "more adventurous", to use the Tribunal's words in paragraph 8.12 of the report. It proposed lower initial capital costs and lower capitalisation. It looked forward to having only 44.3% of the advertising revenue within 5 years and it proposed lower running costs by having automated assisted programming.
It was clear from the evidence that automation was still in the developmental stage. Mr Colin Cameron gave this evidence, inter alia, for GVB:-
"And with the systemation equipment that we have proposed in introducing, we are getting to an innovative stage with radio broadcasting. We are doing away with paper in the studio, the announcers log, copy, etcetera, etcetera. In other words we are coming into a paperless studio. It is already in operation in America and virtually at 2BH at Broken Hill."
Mr D. Kilgour gave this evidence, inter alia:-
"Thank you, Colin. For someone who works in television as well as doing work in radio it is interesting that people accept complete automation in television where everything in television is automated except the live news going to air particularly in this area and I have seen channel 6 start from a fully live station to go to a fully automated station. However, I was still dubious about the automated systems that I had seen operating at places like 2QN and even what we saw in New Zealand where they were using the older American techniques. However, the systemation system that we saw in Broken Hill as recently as last Tuesday were absolutely incredible and it is really given a fascinating new aspect of radio to the announcers and I spoke to three announcers at 2BH and they were really thrilled with the systems and I guess some of them, for their own personal reasons, because one fellow had come from another station where he had worked five nights a week and Saturdays and Sunday nights and here at 2BH he went in and did his afternoon shift."
In its report the ABT did not discuss these differences between the two applications in depth. When, in paragraph 8.22, the ABT said "their services were judged to be equal", it seems that the ABT concluded that GVB's music programming was preferable - though the ABT did not state that it would be likely to attract a greater audience - but that there was a doubt about the acceptability of the automated assisted programming and that this doubt evened the balance between the two proposals.
The ABT found the crucial marginal factor to be in financial considerations. An effect of the ABT's approach was that IFM, which had proposed putting up sufficient capital to provide all the facilities thought to be desirable at the commencement of a successful station and which took a standard approach to broadcasting, found the decision going against it on this ground, which would have seemed to favour its application, whereas GVB's provision of fewer facilities and of full automation, about which the ABT had conceded there were doubts, turned the case in its favour.
The establishment costs proposed by each of the applicants were set out in Table 1 in paragraph 6.2 of the report as follows:-
" IFM GVB SBS SFML
Technical
Equipment 353,000 386,000 474,100 519,000
Transmission
Equipment 581,000 424,000 542,000 658,254
Land and
Ancillary 501,000 200,000 248,500 419,000
Other
pre-operational
expenses 1,408,000 1,091,000 1,325,250 1,202,000
(including
establishment fee)
Total 2,843,000 2,101,000 2,589,850 2,798,254"
No detailed criticism was made by the ABT of the establishment costs of IFM or GVB. The Tribunal stated:-
"6.3 Each applicant has budgetted for a different level of operation as evidenced by the variation in establishment costs. IFM have budgetted for Ancillary Communications equipment, outside broadcast and automation equipment, the early employment of staff and have made provision for satellite receiving equipment in year 5. GVB have opted for full automation. SFML have provided for both automation and satellite receiving equipment, and for translators and studios at Echuca and Seymour/Puckapunyul."
The capital proposed to be raised by each of the applicants was as follows:-
IFM GVB SBS SFML
Shareholders' funds 2,800,000 1,958,000 2,304,0002,667,000
It will be seen that IFM proposed to raise capital sufficient to provide for all but $43,000 of its establishment costs. In this respect it was the best of all applicants, though GVB's proposed capital would provide for all but a little over $100,000 of its establishment costs. In substance, the establishment costs were to be fully funded or nearly fully funded by the capital raised.
Both IFM and GVB expected some losses in early years and both intended to provide some additional equipment in the future. In paragraph 6.3, the ABT referred to IFM's intent to have satellite receiving the equipment in year 5 and in paragraph 5.39 the ABT recorded that GVB intended "to use automation as part of a three-stage plan over 5 years, covering the establishment, the development and consolidation of the station."
In Table 2, the ABT set out the following figures which the parties had given with respect to contemplated capitalisation:-
"TABLE 2 PROPOSED CAPITALISATION $000 IFM GVB SBS SFML Shareholders' funds 2,800 1,958 2,304 2,667 Bank overdraft 450 100 - 300 Leases 500 400 725 700 Total 3,750 2,458 3,029 3,667 Debt to ordinary
shareholders'
funds (percent) 33.9 25.5 31.5 37.5"
The ABT then commented:-
"6.4 The significance of the debt to ordinary equity ratio is that debt has to be serviced - that is, interest paid and principal repaid, at contractually binding times and amounts, irrespective of the trading circumstances prevailing at the time. Ordinary equity offers flexibility in that during poor trading circumstances directors may decide to omit dividends to ordinary shares (although dividends on preference shares may have to be paid). In line with its low establishment and operating costs, GVB has the smallest capital base and the lowest debt to equity ratio."
Mr J. Spigelman Q.C., with whom Mr K.V. Taylor of counsel appeared for IFM, challenged this finding and pointed out that the provisions of IFM with respect to bank overdraft and leasing were in the nature of contingencies which would be available if necessary. See p 84 of IFM's licence application and p 29 of the transcript of the inquiry. Mr Spigelman pointed out that IFM proposed to commence operations with a lesser debt than GVB, being almost fully funded by the capital raised, with the best debt to equity ratio and having provided rather more facilities at the time of establishment than GVB intended to provide at that point of time.
The ABT then turned to operating costs and set out the following estimates given by the applicants:-
"TABLE 3 OPERATING COSTS $000 Year 1 Year 2 Year 3 Year 4 Year 5 IFM 1,373 1,415 1,464 1,517 1,519 GVB 960 1,061 1,116 1,176 1,217 SBS 1,329 1,400 1,503 1,603 1,647 SFML 1,430 1,550 1,677 1,786 1,876"
The ABT went on to say:-
"6.6 The estimated operating expenses of GVB are significantly lower than the other three applicants because of projected lower requirements for both staff and capital costs (which affects depreciation)."
It will be noted that IFM's estimates of operating costs were in line with those of the applicants other than GVB. GVB's operational costs, no doubt because of its intent to have fully automated programmes between 2 pm and 6 am, were appreciably lower.
The ABT then turned to the question of revenue. The Tribunal said:-
"6.8 The four applicants have used fairly diverse methodologies to estimate revenue for the Shepparton market as a whole and for the FM entrant. Three of the applicants followed a three step methodology which was used in the Tribunal's reports on the grant of supplementary licences in Mildura and Canberra, and the grant of an independent FM licence in Newcastle. This method involved:
a) determining the market growth b) assessing market stimulus from the new FM service c) allocating market share between the FM/AM service Because of the different variables involved, different market and FM service revenues naturally followed. 6.9 The applicant who diverged from the methodology was SFML. Instead of projecting the FM's share of the market, SFML assumed that from a 45% share in year 1, its revenue would increase by 25% in years 2 and by 20% in each of the subsequent years, yielding a market share of 85% and increasing in year 5. 6.10 The revenue estimates for 1989/90 in the first full year of operation and 1993/94 are set out below, in thousands of 1986/87 dollars.
TABLE 4 1989/90 Market FM % Share 3SR of FM IFM 2888 1088 37.7 1800 GVB 2660 880 33.1 1780 SBS 2899 870 30.0 2029 SFML 2258 1016 45.0 1242 1993/94 Market FM % Share 3SR of FM IFM 3364 1689 50.2 1675 GVB 3070 1360 44.3 1710 SBS 3744 2022 54.0 1722 SFML 2571 2195 85.4 376"
I should pause to comment that, as the projection of revenue is a notoriously difficult task, the figures adopted by IFM would not seem to be so much higher than the figures of GVB as to be crucial. They were certainly within the range assessed by the four applicants. Much of the difference between IFM and GVB came from IFM's confidence that, having regard to its examination of the market and to the experience of its management in attracting and keeping an audience and in selling advertising time, it would be able to attract a share of the advertising market of 37.7% in the first year, rising to 50.2% in the fifth year. GVB did not expect to be that successful.
IFM's higher estimate of revenue came to be its downfall, for in paragraph 8.31 the ABT held that IFM would have to make substantial reductions in its service if its revenue was lower than projected.
Mr Spigelman submitted that the ABT made a number of errors in its approach to the revenue projection. He submitted that the ABT failed to recognise that each of the applicants had followed what the ABT had referred to in paragraph 6.8 as the three step methodology used in Tribunal reports in earlier inquiries.
Although the ABT described the methodology as a three step methodology, one further step was involved, that is the adoption of a commencing point, the advertising revenue for the service area for a particular year. In this inquiry, the three step methodology was applied by IFM, GVB and SBS to the advertising revenue for the Shepparton service area for the 1986/87 year. At the time when the applications were lodged with the Tribunal, the actual advertising figures for Shepparton Station 3SR for this period were not known and the three applicants made an estimate. From this estimate, figures for market growth were applied to obtain the expected revenue for the Shepparton service area in subsequent years.
Mr Spigelman submitted that IFM had made a sound estimate of 3SR's advertising revenue for the 1986/87 year and, furthermore, took the step of adding to 3SR's advertising revenue for that year a small proportion of the advertising revenue of the other stations whose areas overlapped with the Shepparton service area. Mr Spigelman submitted that, had the revenue projections been important, the ABT had it in its power to check 3SR's advertising revenue for the 86/87 year, for by the time the report issued Station 3SR had lodged its return for that year. Mr Spigelman submitted that the case made by Rich Rivers who opposed the grant of the licence on the ground that its advertising revenue would be severely affected by the new licence showed the importance of taking into account the revenue of overlapping stations.
An even more significant ground of criticism made by Mr Spigelman was that the ABT went on to discuss at length, in paragraphs 6.17 to 6.25, what it described as rate card attrition.
In paragraphs 6.24 and 6.25, the ABT referred to evidence given by Mr Fairley, Chairman of GVB, in his final submission with respect to what he said had occurred when a new station had entered the Wollongong service area and what had occurred when station EON had commenced in Melbourne. Mr Spigelman submitted that what was then said by Mr Fairley was not evidence for the evidence had closed at an early stage in the inquiry and the ABT was simply hearing final submissions. However, I am satisfied that the experiences of Wollongong and EON were mentioned on several occasions throughout the inquiry.
Mr Spigelman submitted further that, in any event, rate card attrition was irrelevant to the estimates of revenue, having regard to the adoption by IFM, GVB and SBS of the methodology, to which I have already referred, set out in para. 6.8 of the report.
I note, however, that the levels of the advertising rates proposed to be charged were not themselves irrelevant. Thus, eg, IFM had stated that it had proposed that it would set its rates close to those set by Station 3SR. GVB had proposed that it would set its rates for 1989/90 approximately 55% lower than 3SR's published rates. If the ABT had thought this difference or any other aspect of the rates proposed to be an important factor to take into account, it was entitled to do so.
Mr Spigelman pointed out that none of the calculations made using the three step methodology took into account any particular level of rates. It may have been assumed that, if the rate levels went down, the quantity of advertising would increase. The methodology adopted ignored rates, took the estimated advertising revenue for 1986/87 as the starting point and from that starting point adopted a figure for market growth and for market stimulus and then allocated market share. None of those calculations was based upon or otherwise took into account a particular rate structure. See eg. pp 86-8 of IFM's application, p 435 and p 441 of the ABT's transcript, p 75 of GVB's application and pp 1-5 of appendix 45 thereto.
Whether or not there would be a rate war, what the extent of rate attrition would be and what effect that would have on overall revenue were not matters upon which the estimates made by IFM, GVB and SBS in accordance with previous decisions of the Tribunal proceeded. Thus, IFM had estimated that it would charge only a little below what was thought to be 3SR's rates and would commence charging at $31 for 30 seconds of advertising. GVB had proposed to commence by charging $16.50 for that time. But these were only anticipated techniques in obtaining advertising. GVB, in its applications, made it clear that its principal aim was to fill 50% of its advertising time slots. It made these comments in its application:-
"The correlation between fill rate and rate card reflect the business skills of management. With a high rate card, the fill rate will diminish and vice versa. Accordingly, Goulburn Valley Broadcasters submits that the prudent course for management to adopt in budget projections is to aim for a 50% fill rate initially, because anything less than this is not only denying advertisers the benefit of frequency, but reflects the inability of management to recognise the need for rate card and fill rate to interact."
In his evidence, Mr Kilgour of GVB confirmed this. He said:-
"And so we looked at the 3SR situation and we found, through our experience, that the 3SR run of station rate was not necessarily the $33 as has been published but certainly somewhere round the $20 to $25 mark, and so accordingly we set our run of station rate at $16 for a number of reasons. We believed that, firstly, it was a realistic level in this market place because we are making a solus market into a dual market. We believed that at that rate we could achieve the revenue that we had projected without any attrition - rate card attrition - in the market, and we believed that we could also reach the 51 per cent fill rate that we had projected in our submission."
Yet, the ABT gave considerable weight to the possibility of rate attrition and, in paragraph 8.29, referred again to what it said was the rate card attrition in Wollongong and in Melbourne and concluded that, "The conservative revenue figures of GVB are therefore accepted."
Mr Spigelman challenged this finding and submitted that the revenue figures of GVB were not based on any level of rate, that they adopted an inaccurate estimate as their commencing point and that they failed to take into account the revenue of overlapping stations.
In paragraph 8.24, the Tribunal found:-
"IFM and GVB used quite different methods to project their revenue. They had different rate cards, population estimates, annual radio revenue growth, and one-off growth from the introduction of a new service. This resulted in IFM being at the top of the range of projections of all four applicants and GVB at the bottom. As a result there was a difference in revenue projections between IFM and GVB of $0.2M in the first year and $0.3M in the fifth year of operation. This difference is partly explained by the difference in advertising rates. IFM's rate card is considerably higher than other applicants."
There are a number of criticisms which can be made of this paragraph. One is that IFM was not at the top of the range of projections. Certainly it was so for the first two years, though in those years the differences were not very great. By the fifth year, IFM's figures were closer to those of GVB than to those of SBS and SFML, which were considerably higher. Secondly, the differences between IFM and GVB were due as much to two factors not mentioned in paragraph 8.24 as to the factors mentioned. Those two factors were the starting figure for the 1986-87 year, in respect of which the ABT had it within its power to ascertain which was correct, and the other being the estimate of the share of the advertising revenue and, on this, the ABT made no comment. Thirdly, the difference between IFM and GVB was not explained by differences in rate cards. The figures set out in Table 4 were not based upon a particular rate of charge.
The ABT discussed what would occur if revenue fell below the predicted levels:-
"Reduction in Revenue
6.29 The Tribunal also discussed with each applicant, what steps they would take if revenue was lower than that projected. All applicants indicated that the situation would have to be analysed carefully to determine whether the station itself was performing poorly, if the local economy was experiencing a downturn, or indeed if there was a national problem that was the cause. 6.30 IFM then indicated that it would consider increasing its sales team. A last resort would be a cut in staff or an increase in automation. Mr Cameron for GVB said that (he had) never been associated with a station that had experienced a shortfall. GVB said that as it had the lowest revenue projection, a reduction in revenue for them was less likely than for the other applicants but, if lower revenue eventuated, then some losses would be absorbed, and it could be just a matter of tightening the belt. 6.31 SBS said that it would become more innovative and aggressive in its sales, but would not reduce the service or the staff. SFML said it would step up efforts to ensure that the quality of the service was improved. Mr Heading for SFML suggested that the station should become more obvious in the community, introduce novelty items to the programming and become more aggressive in the sales area."
The ABT then found, as I have mentioned, that if the revenue was not as high as projected, IFM would have to make substantial reductions in its service and its service would not be comparable to that of GVB.
The effect of the Tribunal's reasoning therefore was that the factor which reduced GVB's operating costs - the use of full automation, concerning which the ABT had expressed doubts as to whether it would be acceptable to the public - had come back as a positive virtue, for the station could function at the level proposed with lesser advertising revenue than could other stations.
The Tribunal did not elaborate on its conclusion that, if advertising revenue was not up to projection, the service given to the listening audience by IFM would have to be reduced. The Tribunal asked each of the applicants what would occur if advertising revenue was below expectations. The witness for SBS gave this answer at p 199 of the transcript:-
"We would give an undertaking, of course, that we would not reduce the service of this station or the staff and if you require, we will make it a condition of our licence that we will not reduce the staff numbers that we have projected."
The witnesses for IFM and GVB handled the question with less precision. In IFM's application, this evidence was given:-
"MR LITTLE: Ms James Bailey, if we hypothesize on a 5 to 15 per cent loss of revenue, year 1, that would give a range of revenue loss of somewhere between 50,000 and 160,000; year 2, would be 64 to 192,000. It is a great deal of money within the forecasts that we have prepared. However, we would believe that such an occurrence would be temporal in nature because the board, after having discussions with management, would formulate a policy to ensure that we recovered that ground. Our financial position is such that we could withstand the loss of revenue, certainly for year 1, or year 2. But we do not believe it would go on for that long. It is difficult to suggest to you today how we would cope with the problem without knowing what the true facts are. But one's immediate reaction is to suggest that if we are losing revenue it is because we are not covering the area adequately with a sales force. And it may well be that we would need to strengthen our sales force and perhaps put one or maybe two more salesmen out to be more aggressive in the area in selling, bearing in mind that sales costs of two extra sales people for a year might be $40,000.
So I think that we have sufficient reserve to withstand, in the shorter term problems, and I would suggest that in a shorter term, is up to a year to put our place in order. MS JAMES BAILEY: May I say, and when you do compare regional radio stations, one with another, and look at their market size and their revenue, the one area that becomes very apparent in terms of difference, as far as costs are concerned, is the staffing level. Now, had you thought about that? MR RIORDAN: Well, yes, our board has thought about staffing levels. And our view at the current time is that those staffing levels are - that the appropriate staffing levels are to provide the adequate .... of service. If the circumstances were such that we could not approach this problem in any other way, in other words as our last resort, cut in service, and that basically a cut in staff in our view, is very much along the path of cut in service. We do not see, as for example, increased automation as being the answer to the problem except as a last resort. And we regard that as effectively a cut in service that the community wants. So, again it is right down the scale in terms of our options or our priorities; but in the last resort the situation is that despite every other option that may have been looked at and comes to nothing, and we have to address finally the question a cut in service, or a cut in staff, we would then have to research carefully just what areas the community were saying to us that they particularly wanted, what areas we were perhaps meeting their needs, and make the judgment on where the cuts would occur on the basis of that research and the careful analysis of it.
MS JAMES BAILEY: Because in fact what Mr Little is explaining is that what you would be doing initially is the reverse, you would be increasing your sales staff. MR LITTLE: We could well do it if it was a condition that arose as a result of our review of our operations. It was an illustration perhaps that revenue loss seems to me to be dictated by sales force. And if we are not covering the area adequately to provide the revenue that we have projected that may be an option open to us. In other words I suppose what I really am saying is that we would necessary as our first option to reduce our costs."
In GVB's application this evidence was given:-
"MR HANDBURY: What would we do? Sorry, in the short term - I hope I have put it into two boxes - in the short term we would absorb it, if we addressed that it was of a minor nature. If it was a serious - - - MS JAMES BAILEY: Could we just get definitions? Minor nature - what sort of figure are you talking about? MR HANDBURY: Well, if we saw that we would have a shortfall in the order of 100,000 per annum. If it was to be more than that, as with any business, you then have to look at the operation of that business - I am not sure of the degree of severity you are suggesting, but you have said up to 15 per cent, well 15 per cent, if that is the top end, then the managing director would be responding to the board on the reasons for it and we would be making executive decisions collectively. Perhaps - I am not sure of an instance that would generate a shortfall precisely of 5, 10 and 15 per cent, but - - - MS JAMES BAILEY: Well, perhaps I could ask Mr Cameron.
MR HANDBURY: Yes.
MR CAMERON: Well, I have never been associated with a station that has had a shortfall. The shortfall has always been prior to me acquiring the stations. MS JAMES BAILEY: So you have no experience in this area, Mr Cameron.
MR CAMERON: I have been very fortunate in that.
MS JAMES BAILEY: However, let us hypothesise: for the first time in your life. MR CAMERON: Well, when the going gets tough the tough get going, and it is a matter of tightening the belt a bit, really looking at what the major problems are, whether it is confined locally to the Goulburn Valley region or whether it is Australia-wide. I cannot really see us having that shortfall of a magnitude of 15 per cent. We certainly will not be putting on additional staff to try and correct the system and I believe it is in all confidence that what funds we do have in reserve would cover that situation. MS JAMES BAILEY: Well, Mr Handbury has indicated it is 100,000 you have got - not in reserve actually, but if it is greater than that, I mean, the chairman of the board is asking for your advice in terms of what are you going to do.
MR CAMERON: Well, we certainly would be out there trying to correct the situation. It is just a matter of like when the station would be starting up, commencing. You are out there to get off the ground, but I just unfortunately - or whatever, fortunate - have never been in that situation and I cannot really see it. We have had downturns but certainly have bounced back. MS JAMES BAILEY: All right. Mr Fairley. MR FAIRLEY: We certainly have the capacity to go back to the shareholders, Ms James Bailey, if it was just really critical, if it was an Australia-wide thing that we just were not able to deal with in terms of the staffing that we had and cranking the sales, cranking more revenue out of the market; and certainly that is an option. But I mean, in terms of our projections, they are really very responsible in terms of where we see this market."
There seems no great difference in these answers. Both IFM and GVB had made projections and thought that the projections would be met. If they were not, management would have to deal with the problem.
In the above discussion, I have dealt at length with the ABT's report and with the course of reasoning which appears therein. I have done this, not with a view to criticising the ABT, but with a view to exposing as best I can the questions of law which arise for consideration in the present case. There is, in this case, a very real question as to what is the function of the Court in these judicial review proceedings.
It was not put by Mr Spigelman, and could not have been put, that the decision of the Tribunal was unreasonable. Plainly GVB had put forward an interesting, even attractive proposal, and it was open to the ABT to conclude that GVB was the most suitable of the applicants.
Nor was there any challenge to the overall structure of the ABT's reasons. I have made some remarks above with respect to them but solely with a view to making plain what was the reasoning process and what effect the matters therein that are challenged had in the ultimate decision. As Deane J. said in Sean Investments Pty Ltd v. MacKellar (1981) 38 ALR 363 at p 375:-
"In a case such as the present, where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards."
See also the remarks of Mason J. in Minister for Aboriginal Affairs and Anor v. Peko-Wallsend Limited and Ors (1985) 66 ALR 299 at pp 308-310. At pp 309-10, his Honour said:-
"It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power (Sean Investments Pty Ltd v MacKellar at p 375; R v Anderson; Ex parte Ipec-Air Pty Ltd
(1965) 113 CLR 177 at 205; Elliott v Southwark London Borough Council (1976) 1 WLR 499 at 507; (1976) 2 All ER 781 at 788; Pickwell v Camden London Borough Council (1983) QB 962 at 990)."
Nor do I think that there was any breach of the principles of natural justice. I have specifically discussed the issue raised by Mr Spigelman as to the submissions made in Mr Fairley's closing address with respect to rate attrition after the commencement of the new station at Wollongong and station EON in Melbourne. I am satisfied that matters of rate cards and rate attrition were raised in the written submissions, in the oral evidence and in the concluding submissions and that there was no breach of the rules of natural justice in this respect. Representatives of IFM thought the question of the rates and of rate attrition to be largely irrelevant, for the fixing of rates was a matter for management having regard to the circumstances of the time. Therefore, IFM was surprised at the attention given to the issue in the Tribunal's reasons. But that is not a natural justice point.
Mr Spigelman submitted under the heading of natural justice that the ABT did not accord procedural fairness to IFM for it found against IFM's revenue projections and in favour of GVB's revenue projections when there was available in the files of the ABT, though not in the inquiry papers, a means of checking that IFM's commencing point was correct and that GVB's was not. Mr Spigelman submitted that procedural fairness demanded that a finding not be made against IFM on mere speculation when the ABT had the means of checking that IFM's projections were soundly based. I need not discuss this matter further. I would not make an order on this ground whether or not it be correct. The ABT did not discuss in detail the projections made. It dealt with future revenue principally by reference to rate card attrition. Therefore, the commencing point of the revenue projections played little or no part in the ABT's decision.
That brings me to the substance of the matter. Mr Spigelman submitted that the Tribunal took into account irrelevant matters, namely, the Tribunal's incorrect findings of fact, and failed to take into account relevant matters, namely the correct facts.
Forster J. pointed out in Singh and Another v. Minister for Immigration and Ethnic Affairs (1987) 15 FCR 4 at p 13 that:-
"... correct or incorrect facts are not to be equated with relevant/irrelevant facts."
It is a ground of review provided by s.5(1)(e) of the ADJR Act that the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made. Section 5(2) of the ADJR Act extends this provision to encompass the taking into account of an irrelevant consideration or the failing to take into account of a relevant consideration. Section 5(3) of the ADJR Act deals specifically with the situation where "(b) the person who made the decision based the decision upon the existence of a particular fact, and that fact did not exist." But, that ground is an elaboration of ground 5(1)(h), namely, "that there was no evidence or other material to justify the making of the decision" and refers to the situation where the fact found was not open on the evidence or other material that was or ought to have been before the decision-maker when the decision was made.
Similarly, I said in Ruangrong v. Minister for Immigration and Ethnic Affairs, No. G478 of 1987, delivered 29 March 1988:-
"It is not the function of a court in judicial review proceedings to reconsider the material which was before the decision-maker and to come to its own view of the facts as disclosed by that material. As Diplock L.J. said in R. v. Deputy Industrial Injuries Commissioner; ex parte Moore (1965) 1 QB 456 at p 488:- 'If it (the evidence) is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue. The supervisory jurisdiction of the High Court does not entitle it to usurp this responsibility and to substitute its own view for his.'
See also Chief Constable of the North Wales Police v. Evans, (1982) 1 WLR 1155, in which Lord Brightman said, at p 1173:- 'Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power.'"
Likewise, in Waterford v. The Commonwealth (1987) 61 ALJR 350 at p 359, Brennan J. said:-
"There is no error of law simply in making a wrong finding of fact."
The same point was pungently stated by Lord Brightman, with whom the other members of the House agreed, in Puhlhofer and Anor v. Hillingdon London Borough Council (1986) AC 485 where his Lordship said at p 518:-
"Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the Court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely."
Nevertheless, recent federal legislation has emphasised the need for reasoned decision-making. See the Freedom of Information Act 1982 (Cth), s.13 of the ADJR Act, ss. 28(1) and 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) and s.25B of the Broadcasting Act. Thus instances may be found in the cases where decisions have been set aside because, being insufficiently supported by reason, they appear to be an improper exercise of the power conferred or arbitrary or there was no evidence or other material sufficient to justify the making of the decision or the decision was so unreasonable that no reasonable person could have so exercised the power. The cases have developed, I believe, to the extent that the making or failure to make a particular finding of fact in the course of the reasoning process may be attacked on such grounds and that the taking into account of a fact found unreasonably or the failure to take into account a fact that a reasonable decision-maker must have found and taken into account provides a ground of review under ss.5(1)(e) and 5(2)(a) and (b) of the ADJR Act.
The point has been put in many different ways. Thus, in Singh and Another v. Minister for Immigration and Ethnic Affairs, cited above, Forster J. said at p 10:-
"If assertions of important facts were disbelieved without reason then I should suppose that the decision-maker would be guilty of 'failing to take a relevant consideration into account'".
In Television Capricornia Pty Limited v. Australian Broadcasting Tribunal and Ors (1986) 70 ALR 147, Wilcox J. said at p 150-151:-
"There are also cases in which 'no evidence' has been treated as an aspect of some other ground. A finding made without appropriate evidence will generally be erroneous in point of law: see Smith v. General Motor Cab Co Limited (1911) AC 188 at 190. And the necessity for adequate evidence has been said to be a component of natural justice: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666; 44 FLR 41 in which Deane J (ALR at p 689; FLR at pp 63-8) adopted the statement of Diplock LJ in R v Deputy Industrial Injuries Commissioner; Ex parte Moore (1965) 1 QB 56 at 488 that natural justice requires that a decision must be based on evidence, in the sense that 'it must be based upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant'. This test was restated in slightly different words by Lord Diplock, as he had then become, in the judgment of the Judicial Committee of the Privy Council prepared by him in Mahon v Air New Zealand (1984) AC 808 at 821: 'The technical rules of evidence applicable to civil or criminal litigation form no part of the rules of natural justice. What is required by the first rule is that the decision to make the finding must be based upon some material that tends logically to show the evidence of facts consistent with the finding and that the reasoning supportive of the finding, if it be disclosed, is not logically self-contradictory.'"
In Prasad v. Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at p 169, Wilcox J. said:-
"Under s.5(1)(e) and 5(2)(g) the Court is concerned with the manner of exercise of the power. The power is exercised in an improper manner if, upon the material before the decision-maker, it is a decision to which no reasonable person could come. Equally, it is exercised in an improper manner if the decision-maker makes his decision - which perhaps in itself, reasonably reflects the material before him - in a manner so devoid of any plausible justification that no reasonable person could have taken this course, for example by unreasonably failing to ascertain relevant facts which he knew to be readily available to him."
In Western Television Limited v. Australian Broadcasting Tribunal and Anor (1986) 12 FCR 414 at p 429, Pincus J. said, with respect to s.5(3)(b) of the ADJR Act:-
"A narrower reading, which makes more practical sense, is that par (b) refers only to instances in which express findings made are plainly incorrect."
In Akers v. Minister for Immigration, Local Government and Ethnic Affairs (WAG 147 of 1988, delivered 22 December 1988) Lee J. said:-
"In proceding upon an erroneous premise on a fundamental matter, the authorized officer took into account an irrelevant consideration in that it was information other than the information the American Consulate had endeavoured to convey. To proceed to a decision upon the misapprehension of matters material to the decision, may be described as an improper exercise of power (see Minister for Immigration and Ethnic Affairs v. Haj-Ismail (1982) 40 ALR 341 at pp 348 and 365 and Sezdirmezoglu v. Acting Minister for Immigration and Ethnic Affairs (1983) 51 ALR 561 at pp 572-573).
Such a situation may be contrasted with an opinion genuinely formed upon conflicting materials placed before the decision-maker, which opinion is sought to be called into question by reference to further evidence or material (see Akpan v. Minister for Immigration and Ethnic Affairs (1982) 58 FLR 47). Such a circumstance provides no ground for review."
In Khan and Ors v. Minister for Immigration and Ethnic Affairs (G159 of 1987, delivered 11 December 1987) Gummow J. said:-
"It is not for the Court to study administrative decisions too finely or precisely; they are to be regarded carefully but sensibly, and not zealously in the pursuit of error. (Smith v. MIEA (1984) 53 ALR 511 at 544 per Lockhart J.). Nevertheless, in my opinion, on the whole of the evidence the applications in question were not each given proper, genuine and realistic consideration upon the merits."
In the United Kingdom, similar principles are emerging. See Wade's Administrative Law, 6th Ed., pp 329-30.
I agree with Mr Spigelman that the Tribunal made some errors of fact and that its decision was to that extent made on wrong facts and to that extent was unfair to IFM.
The ABT was wrong in its conclusion as to debt to equity ratio, and in the use which the Tribunal made of IFM's proposal to have available adequate overdraft and leasing facilities in case of need.
There were unsatisfactory aspects of the finding that GVB's estimates of revenue were accepted in preference to those of IFM. The ABT did not examine the calculations and point to any error in IFM's calculations. It did not make a finding that its starting point was incorrect or that the figures which it adopted for market growth and market stimulus were incorrect or that its estimates of market share were unrealistic or above those that the ABT had in mind for the new FM station. The ABT made no finding that in any of these respects the GVB estimates were to be preferred.
The ABT said that IFM's revenue projections were at the top of the range. But this was not a fair descripion of them. The ABT said that the introduction of the new station would cause 3SR to lower its rate card and "IFM would therefore be forced to lower its proposed rates too. This would have a serious effect on its revenue predictions." But the ABT did not explain why this effect would occur. After all, GVB intended to start with a low rate card. If IFM were to reduce its rates to those proposed by GVB, what would it matter? In fact, neither IFM nor GVB had made projections on the basis of selling particular numbers of time-slots at particular rates.
Nor did the ABT give adequate support for its finding that, if there were rate attrition, "It is likely ... that the strategy of cutting staff and automation might both have to be used." For example, the ABT referred to rate attrition after the introduction of the new station in Wollongong and station EON in Melbourne. But it did not say whether the response to rate attrition which then occurred was a reduction in the service to the public or the contrary, that is an improvement in service stimulated by rate competition.
Indeed, although the ABT appears to have considered that the Shepparton service area might be unable to support a station which used the standard broadcasting techniques proposed by IFM and that the proposal by GVB to rely heavily on automated assisted programming was, therefore, a good thing, which was indeed the case which GVB put in the inquiry, the actual finding by the ABT was not expressed positively in this way but negatively, namely, that "IFM would have to make substantial reductions in its service if its revenue was lower than projected and that reduced service would not be comparable to the service that GVB proposes."
So I come to the point that the ABT made some findings of fact that, in my view, were wrong, on the material before the ABT, and to that extent took into account facts that were wrong and failed to take into account facts that ought to have been found on the material before the decision-maker. But to say that is not sufficient to found a conclusion that irrelevant considerations were taken into account or that relevant considerations were ignored. It is necessary to find that the errors were of such a nature that no reasonable decision-maker could have made them or that there was no evidence before the ABT to justify the findings or that the findings were in some like vein an improper exercise of the decision-making power.
On the whole, I find myself in the same position as was Pincus J. in Western Television Limited v. Australian Broadcasting Tribunal, cited above, where his Honour at p 429 expressed the view that a finding was not "in the least convincing" and that "I do not think any court would have made a finding adverse to the applicant on the basis of such tenuous material as is mentioned in the report" but that the Tribunal's finding nevertheless did not involve an error of one of the varieties mentioned in s.5 of the ADJR Act.
It is difficult to elaborate further on this point for, in the end it amounts to a judgment as to whether the approach taken by the ABT with respect to the several matters I have discussed in these reasons was an approach that no reasonable decision-maker would have taken. I have examined the particular matters complained of in the light of the whole of the ABT's reasoning process. It does not seem to me that I should hold that no reasonable decision-maker could have approached the matter in this way or that there were significant findings of fact made which no reasonable decision-maker would have made. The ABT delivered a lengthy and reasoned report. There is nothing in the report which, on the face of it, stands out as arbitrary or unreasonable. Certainly, the ABT reached some important conclusions by an indirect route and, on examination, some findings of fact were unsatisfactory and some of the reasoning is unconvincing. But that is not enough to justify judicial intervention. I am not satisfied that relevant factors were ignored or irrelevant factors taken into account, that the decision was otherwise an improper exercise of power, that procedural fairness was not provided or that the decision should be struck down as being in whole or part unreasonable.
In my opinion, this is a case where the facts were for the ABT, the ABT has given considered reasons for its conclusions, its ultimate decision is not an unreasonable one and any matters in the reasoning process that may be errors were not reviewable errors.
There are three further matters of a discrete nature that I should mention. Mr Spigelman submitted that the ABT was incorrect when it said in paragraph 8.33:-
"GVB is also the only company which has no major shareholders with existing media interests."
I need not discuss this point further. The point was stated by the Tribunal but I think played no effective part in the ultimate decision which was made on other grounds.
Mr Spigelman also submitted that, when formulating its decision, the ABT failed to take into account the interests of overlapping stations and that the ABT ought to have considered whether conditions should have been imposed upon GVB which protected the advertising and interests of other stations. However, the ABT mentioned the overlapping stations and gave particular attention to the position of 2QN Deniliquin, the Rich Rivers station. I am satisfied that all relevant matters of this nature were taken into account.
Mr Spigelman also submitted that the ABT purported to grant to GVB the FM licence for the Shepparton service area whereas its only power was to give notice to GVB under s.82(1)(a) that the licence was available to it. However, I read the decision of the ABT as conforming with the structure of decision-making set out in the Broadcasting Act. It follows that no licence has yet been granted and the ABT did not purport to exceed its power. Its report and decision appear to me to satisfy the requirements of s.25B of the Broadcasting Act.
In the circumstances, the application will be dismissed with costs.
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