Rich Rivers Radio Pty Ltd v Australian Broadcasting Tribunal

[1989] FCA 803

Re: RICH RIVERS RADIO PTY LIMITED
And: AUSTRALIAN BROADCASTING TRIBUNAL; GOULBURN VALLEY BROADCASTING PTY LTD
and INDEPENDENT F M RADIO PTY LTD
No. G244 of 1989
FED No. 803
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Lockhart(1), Neaves(1) and Hill(1) JJ.

CATCHWORDS

Administrative Law - broadcasting - application under the administrative Decisions (Judicial Review) Act 1977 for review of decision of Broadcasting Tribunal to grant commercial radio licence under s.81(1) Broadcasting Act 1942 - Tribunal obliged to hold enquiry into grant of licence - whether sufficient evidence for Tribunal's finding as to commercial viability - whether Tribunal itself obliged to carry out research - whether Tribunal disclosed adequate reasons for findings - whether Tribunal breached requirements of natural justice by making a finding without giving appellant an opportunity to be heard - whether Tribunal misdirected itself as to its power to grant appellant a supplementary licence.

Broadcasting Act 1942: ss.17C, 25, 25B, 81(1), 82(1), 83.

Administrative Decisions (Judicial Review) Act 1977: s.13

Administrative Appeals Tribunal Act 1975: s.43.

HEARING

SYDNEY

#DATE 20:12:1989

Counsel and Solicitors Ms C F T Weigall instructed
Appellant: by David Carr & Associates

Counsel and Solicitors Mr A Robertson instructed by
for First Respondent: the Australian Government Solicitor

Counsel and Solicitors Mr L T Grey instructed by Corrs
for Second Respondent: Pavey Whiting & Byrne

ORDER

1. The appeal be dismissed.

2. The appellant pay the costs of the first and second respondents.

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

JUDGE1

The appellant, Rich Rivers Radio Pty Limited, appeals against the judgment of a judge of this Court (Davies J) whereby his Honour refused to set aside a decision made by the first respondent, the Australian Broadcasting Tribunal ("the Tribunal"), to grant to the second respondent, Goulburn Valley Broadcasters Pty Ltd ("GVB"), a commercial FM radio licence to serve the Shepparton area. The Tribunal conformably with the decision of the High Court of Australia in R v. Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13, 35-6, sought to be heard only on matters going to its powers and procedures to the extent that those matters might not have been fully dealt with by GVB. The third respondent, Independent F M Radio Pty Ltd ("IFM") had, together with GVB, been one of the four applicants for the FM radio licence; but prior to the hearing of the appeal advised the Court that it did not wish to participate in the proceedings.

1. On 1 May 1987 the Minister for Communications published a notice under s.82(1) of the Broadcasting Act 1942 (Cth) ("the Act") inviting applications for an FM radio licence for the Shepparton service area. By force of s.17C of the Act, the Tribunal, having received an application requesting the exercise by it of a substantive power, was obliged to hold an inquiry, the procedure at which was to be governed by s.25 of the Act. Section 25 is in the following terms:
   

"(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."

1. His Honour found that the conduct of the inquiry followed the procedures specified in the Australian Broadcasting Tribunal (Inquiries) Regulations and this finding was not challenged. In due course the Tribunal issued its report of the inquiry into the grant of the licence. The duties of the Tribunal with respect to a report are set out in s.25B of the Act, sub-s.(1) of which provides as follows:
   

"(1) Subject to sub-section (2), where the Tribunal has held an inquiry, the Tribunal shall -

(a) give to the Minister and to all parties to the proceedings; and

(b) cause to be made available to the public in such manner as it thinks fit, a report setting out -

(c) a summary of the proceedings at the inquiry, including particulars of, and the reasons for -

(i) any direction given under section 22AA; and

(ii) any determination made, and any procedure adopted, under sub-section 17C(7), other than a direction, determination or procedure that the Tribunal considers of insufficient importance to be included in the report.

(d) the findings of the Tribunal and the reasons for those findings; and

(e) the decision or recommendations (if any) made by the Tribunal in consequence of those findings, and the reasons for any such decision or recommendations."

1. The decision reached by the Tribunal was so far as is presently relevant in the following terms:
   

"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."

1. The reference in the decision to 2QN is a reference to an AM radio station operated by the appellant under that call sign in the Riverina service area.

2. As his Honour observed, the decision also specified the content of four conditions proposed for the licence.

3. Power to grant a licence is conferred upon the Tribunal by s.81(1) of the Act. Sub-section (6) of s.83 however at that time provided relevantly that the Tribunal was not to refuse to grant a commercial radio licence to a person unless:
   

"(a) the person has failed to give an undertaking in accordance with sub-section (5);

(b) the Tribunal is satisfied that the grant of the licence would be contrary to a provision of this Act; or

(c) in the case of 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;

(ii) ...

(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;

(d) it appears to the tribunal that a licence of the kind contemplated by the matters (other than the outline of the technical conditions proposed to be included in the licence warrant) set out in a notice under paragraph 82(1)(a) or 82A(4)(a) should not be granted;...".

1. Subsection (9) of s.83 provided:
   

"(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."

1. The service area for the particular licence under consideration was such that it was coincident with the service area of commercial AM radio station 3SR (of which the licensee was Associated Broadcasting Services Ltd) and overlapped the service areas of AM radio stations at Wangaratta, Bendigo, Melbourne, Deniliquin and Albury. The Tribunal found that the overlap with the service area of AM station 2QN at Deniliquin, of which the appellant was the licensee, was such that approximately 18% of the persons resident in the Shepparton service area were also within the Riverina service area while 54% or 58% of the persons resident in the Riverina service area were also within the Shepparton service area.

2. The conduct of the inquiry was described by the Tribunal in its report in the following terms:
   

"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."

1. The report of the Tribunal summarised the submissions of the appellant and the applicants for the licence referring in some detail to the evidence given on the part of the appellant by its Managing Director, Mr Robertson, and by an independent financial adviser, Mr Waddell, on the part of the third respondent. In essence Mr Robertson's evidence was that the appellant derived its revenue as to 26% from national advertising and as to 74% from local advertising. Of the local advertising 40% was derived from business in the area of overlap with the proposed new FM service. It was predicted by Mr Robertson that a new independent FM service would reduce the appellant's total revenue by 17% in the first year and would effectively erase the appellant's profit margin within two to three years. Mr Robertson's predictions were based on the assumption that 2QN's national revenue would decline by 25% and its local revenue from the overlap area by 30%.

2. Mr Waddell's evidence proceeded on two different assumptions. The first assumption was that real revenue growth in the service area of the appellant for the two years prior to the introduction of a new FM service and for the five years thereafter would be 3.88% and that a one-off growth of 12.5% would arise on the introduction of the new service. The second assumption was that real revenue growth for each of the years referred to would be 3.88% for the overlap area and 2% for the non-overlap area and that there would be the one-off growth of 12.5% upon the introduction of the new service.

3. On the first assumption the projected operating profit of the appellant in the years 1990 to 1994 would be $103,200 for the first of these years rising to $133,500 in 1994. On the second of these assumptions estimated profits of the appellant would decline slightly from $79,600 in 1990 to $71,400 in 1994. Mr Waddell's opinion on both sets of assumptions was that the appellant would "survive commercially while effectively operating in accordance with the conditions of its licence."

4. Mr Robertson accepted the estimate of a 12.5% growth as a consequence of the introduction of the new service but did not agree that the annual percentage in real growth in revenue would be 3.88% as assessed by Mr Waddell.

5. The Tribunal's report then discusses the submissions made upon the question raised by the appellant that it should refuse to grant an independent FM licence so as to enhance the prospects of the appellant obtaining the grant of a supplementary FM radio licence upon the application which it had previously made in that behalf.

6. The conclusions reached by the Tribunal on the issue of the commercial viability of the appellant and on the question referred to in the last preceding paragraph as expressed in its report, were as follows:
   

"4.23 The issues that the Tribunal has to consider in deciding whether or not an independent licence should be granted are:

1) 2QN's commercial viability; and 2) whether the public interest would be better served by the grant of a new independent licence or by the grant of a supplementary licence to 2QN, and possibly to 3SR as well. 4.24 No research was done either by 2QN, or by any of the applicants to this inquiry, as to the extent of any loss of revenue from 2QN to a new FM station in the overlap area. No party could do any better than offer 'guestimates' as to the extent of potential erosion of 2QN's revenue from that area after the introduction of an independent FM service. 2QN provided no research on which it based its submission that its revenue from the overlap area will be reduced by 30%, or that its national revenue will decline by 25%. 4.25 The trend of people shopping in towns to the south of them was not disputed and appears to be an established trading pattern that is unlikely to change. Therefore, retail outlets and other advertisers in the overlap area are unlikely to change their advertising patterns. These advertisers will still use 2QN rather than 3SR or a new service. It is reasonable therefore, to conclude that 3SR's revenue from the overlap area is more likely to be eroded than 2QN's on the introduction of a new and independent FM service. 4.26 The research commissioned by the four applicants indicates a strong demand for an independent FM station in the Shepparton market. 2QN has not commissioned any research to determine whether a supplementary licence grant to it and 3SR will better satisfy the needs and interests of the audience in the two service areas than the grant of an independent licence. 3SR withdrew from the inquiry in January 1988 and the Tribunal has nothing before it to indicate that 3SR would pursue the grant of a supplementary licence. 2QN has indicated that it does wish to proceed with its supplementary licence application. The estimated establishment costs of a supplementary licence for 2QN is between $550,000 and $650,000. This appears to indicate that it could afford to provide a second service without impacting on the adequacy and comprehensiveness of the overall service. None of the four applicants for an independent licence for Shepparton opposed 2QN on this matter. 4.27 The service of 2QN is specially formatted to the needs of its market, as Mr Robertson told the Tribunal at the conference. None of the applicants have duplicated that format in their proposals. They are proposing quite different formats, based on the unsatisfied needs and interests of the Shepparton service area as identified in the research commissioned by each applicant. The Tribunal can not be sure that even if 3SR went ahead with a supplementary licence application, these needs would be met.

4.28 While the overlap area might represent 58% of 2QN's audience, it is a much smaller proportion of the audience in the service area proposed for the new licence. There are approximately 120,000 people in the non-overlap area of the new station's service area. It does not necessarily follow that if the Tribunal recommends that the grant of a new FM licence is not in the public interest, 3SR will apply for a supplementary licence. Therefore, those 120,000 people could be deprived of a second radio service.

4.29 On the basis of the evidence before it, the Tribunal concludes that 2QN's commercial viability will not be so threatened, upon the grant of an independent licence in Shepparton, as to prevent it from providing an adequate and comprehensive service pursuant to its licence. Having regard to the conclusions of the research undertaken on behalf of the applicants, the Tribunal also concludes that it is in the public interest to grant an independent FM licence to serve the Shepparton area. This is reinforced by the fact that Associated Broadcasting Services owns GMV6, the only commercial television service in the Shepparton area, as well as owning 3SR. The Broadcasting Act requires the Tribunal to avoid 'undue concentration of influence' when deciding upon the grant of a licence. Should a supplementary licence be granted to 3SR upon the refusal of the Tribunal to grant an independent licence, then all the electronic media serving the greater part of Shepparton market would be owned by the one company."

1. Counsel for the appellant submitted that the judgment below and the decision of the Tribunal should be set aside. The arguments advanced in support of that submission may be summarised as follows:
   

* The Tribunal was obliged to determine for itself the commercial viability of the new service and the existing service of the appellant. The Tribunal considered, it was said, the evidence to be so unsatisfactory that no determination of the commercial viability of the two services could be made, yet it reached a conclusion which could or should not have been reached on the unsatisfactory state of the evidence. * The Tribunal was obliged by s.25B(1) of that Act to set out in its report the findings which it made and the reasons for those findings (para (d)) and the reasons for its decision (para (e)). The Tribunal did not give proper reasons for the findings made by it that:

(a) the Commercial viability of the appellant would not be threatened by the grant of the proposed licence; and

(b) the evidence of the appellant that its commercial viability would be affected should be rejected. * The Tribunal had an obligation under s.25 to make a thorough investigation into the issue of commercial viability, but failed to do so. * The Tribunal denied natural justice to the appellant in making a finding adverse to it without affording it an opportunity to produce material relevant to that finding.

* The Tribunal misdirected itself as to the issue before it.

1. To a large extent the submissions made by the appellant overlapped and it is therefore convenient to consider the first three submissions together. The final two submissions relate to discrete issues.

2. It should first be noted that the issue posed by s.83(6)(c) is whether it is advisable in the public interest to refuse to grant the relevant licence to an applicant. In considering that question the Tribunal may only take into account the matters or circumstances set out in sub-paragraphs (i), (ii) and (iii).

3. We have no difficulty in concluding, conformably with the submissions of the appellant, that the Tribunal was obliged by s.83(6)(c)(iii) to have regard to the need for the commercial viability of the service provided by the appellant. Indeed the respondents did not submit otherwise. In a case such as the present, where there is an overlap between service areas, the legislative purpose would not be served if the Tribunal had a mere discretion whether to have regard to the need for commercial viability of the service or services provided pursuant to the existing licence or licences. Cf. Our Town FM Pty Ltd v. Australian Broadcasting Tribunal (1987) 77 ALR 577 at 588.

4. Nor can there be any doubt that the Tribunal was bound to conduct a thorough investigation into the matters which it was bound to consider under s.83(6). By way of analogy, as the High Court (Gibbs, Stephen, Mason, Aickin and Wilson JJ) said in Hardiman's case (supra) at 32-3 in the context of an inquiry into whether there had been breaches of s.92(1)(a) of the Act, that inquiry being held under s.92F(4):
   

"It follows from the provisions of s.25(1) that the Tribunal was under a statutory duty to make a thorough investigation into all matters relevant to the inquiry which it was holding pursuant to s.92F(4). It was therefore under a statutory duty to investigate the possibility that contraventions of the Act had taken place on the part of Control and those associated with it. To discharge its duty the Tribunal must in an appropriate case investigate for itself the possibility of contravention, even in circumstances where there is no party before the Tribunal willing, anxious or able to pursue the issue."

1. This was so notwithstanding that the inquiry was an administrative inquiry because the Tribunal had a statutory responsibility to inquire into the issues.

2. Further it cannot be denied that s.25B imposes upon the Tribunal an obligation to make findings of fact and to give reasons for those findings. In this connection counsel for the appellant referred to the discussion by Wilcox J in Our Town to which we have already referred. (See at 591-7). In that case his Honour at 595 expressed the opinion that the obligation imposed on the Tribunal under s.25B was not to write a lengthy report dealing with every detail of the evidence. What was required, in his Honour's view, was: "that the tribunal set out in short and measured, but specific, terms its findings in connection with" the matters relevant to its decision so that, to use the language of Woodward J in Ansett Transport Industries (Operations) Pty Ltd v. Wraith (1983) 48 ALR 500 at 507, the person seeking review of the decision may say in effect:
   

"Even though I may not agree with it, I now understand why the decision went against me. I am now in a position to decide whether that decision has involved an unwarranted finding of fact, or an error of law, which is worth challenging."

1. What Wilcox J said echoes what has been said in a number of cases concerning s.13 of the Administrative Decisions (Judicial Review) Act 1977 and provisions such as s.43 of the Administrative Appeals Tribunal Act 1975 which require that Tribunal to give reasons for its findings. Cf Sullivan v. Department of Transport (1978) 20 ALR 323, at 348-9, 352; and Collins v. Repatriation Commission (1980) 32 ALR 581 at 594.

2. In our opinion, however, it is obvious from a perusal of its reasons that the Tribunal did consider the issue of commercial viability. It did not form the view that the evidence was such that it was unable to reach a conclusion. It made a finding that the commercial viability of 2QN would not be so threatened in the event of the grant of an independent licence that 2QN would be prevented from providing an adequate and comprehensive service and in the paragraphs leading up to paragraph 4.29 gave reasons for that finding. In these circumstances the appellant's submissions are misconceived.

3. We were not taken to the evidence that was before the Tribunal. Indeed, it was not reproduced in the appeal book although it was available, if required, at the hearing of the appeal. However, as we have already indicated, the appellant gave evidence through Mr Robertson to the effect that the grant of a new licence would render the service provided by 2QN non-viable. It submitted that its revenue in the overlap area would be reduced by 30% and that its national revenue would decline by 25%. This evidence was not based on research statistics and the figures appear to have been regarded by the Tribunal as "guestimates". In the event it is clear that these figures were not accepted. It was a matter for the Tribunal, in the light of the other evidence before it, what weight it should afford this evidence.

4. Evidence was, as we have already noted, also led through Mr Waddell for the third respondent to the contrary of that advanced by Mr Robertson, together with research evidence which apparently went to the anticipated listening audience over a five year period. There was discussion in the evidence whether advertisers in the overlap area would be likely to change their advertising patterns.

5. While the Tribunal was critical of the parties not providing evidence of research as to the extent of any loss of revenue from 2QN to a new FM station in the overlap area it does not follow that, as counsel for the appellant submitted, the Tribunal was of the opinion that it could not reach a decision on the evidence before it; nor was there any attempt to submit before the Judge below or before us that there was no evidence upon which the Tribunal could come to the decision it did.

6. In most cases the Tribunal is entitled to rely on the evidence which the parties, usually with conflicting interests, put before it. It would be a rare case where the Tribunal would be entitled, where evidence was given, to conclude that the evidence was so unsatisfactory that no conclusions could possibly be drawn from that evidence. If such a case arises there would be a dilemma for the Tribunal.

7. We agree, with respect, with the Judge below, that it would have been improper for the Tribunal to carry out research itself into the matters in issue and thereby be in a position of having to adjudicate based upon evidence which it itself had collected. In the rare case to which we have adverted it would be open to the Tribunal, if it formed the view that the evidence before it was inadequate, to require the parties to put other evidence before it. In the present case, however, the Tribunal never, so far as appears, formed the view that the evidence before it was inadequate to permit it to reach a conclusion.

8. Rather, in the passages we have earlier quoted the Tribunal made, on the evidence before it, findings that:
   

* The revenue of the appellant from advertising in the overlap area was unlikely to be affected (paragraph 4.25).

* The appellant could afford to outlay between $550,000 and $650,000 for a supplementary licence, indicating that it could afford to provide a second service without impacting, inter alia, on the adequacy of its existing service (paragraph 4.26).

* The effect of the grant of the new licence would not threaten the appellant's commercial viability (paragraph 4.29).

1. In our opinion the Tribunal did consider the issue of commercial viability as required, made findings and, although the reasoning process could have been more fully and more clearly expressed gave reasons for its findings. In particular, the Tribunal at no stage determined that the evidence was such as not to permit it to reach a decision.

2. Counsel for the appellant referred us to the decision of Sweeney J in Sunraysia Broadcasters Pty Ltd v. Australian Broadcasting Tribunal (1987) 76 ALR 201. That case concerned s.83(6)(e) of the Act which dealt with supplementary licences and at the relevant time provided:
   

"(6) The tribunal shall not refuse to grant a licence to a person unless it has held an inquiry into the grant of the licence and - ...

(e) where the licence is a supplementary licence, the Tribunal, having due regard to the need for the commercial viability of broadcasting stations and television stations in the area to be served in pursuance of the licence, determines -

(i) that an additional commercial broadcasting station or commercial television station, as the case requires, to serve that area is reasonably likely to be commercially viable during the period in which the licence, if granted, would be in force; and

(ii) that, having considered -

(A) the need for an adequate and comprehensive service to be provided pursuant to the licence for such an additional station; and

(B) whether, in its opinion, there is or would, if the supplementary licence were granted, be an undue concentration of the ownership or control, direct or indirect, of the media in the area to be served pursuant to the supplementary licence,

it is in the public interest that applications for such a licence should be invited;"

1. The Tribunal in the Sunraysia case based its decision on possible "ranges" of levels of costs growth and other factors but did not determine the likely revenue and expenses. Its decision was set aside.

2. During the course of his judgment Sweeney J, after pointing out that the Tribunal had not determined that an additional station was reasonably likely to be commercially viable within the meaning of paragraph (e) said at 215:
   

"It failed to determine its likely revenue or expenditure. It failed to determine what was reasonably likely to be the total revenue available to both stations or the additional station's share of it during the period. It failed to determine what the additional station's revenue was reasonably likely to be during the period. It did not determine whether an additional station was reasonably likely to receive sufficient revenue to be commercially viable, while providing an adequate and comprehensive service."

1. Counsel for the appellant sought to extrapolate from the passage quoted above an obligation in the present case upon the Tribunal to make detailed findings of the likely income and expenditure of the appellant in order to reach its conclusion about commercial viability. However, it does not seem to us that Sweeney J was necessarily seeking to lay down any matter of principle even assuming that the legislative context of s.83(6)(e) is the same as s.83(6)(c). Counsel for the second respondent submitted there was a contextual difference between the two paragraphs but we find it unnecessary to decide in the present case whether that is so.

2. In our opinion, in a case such as the present, it was sufficient that the Tribunal, on the basis of the evidence before it that revenue from advertising was unlikely to be affected, formed a conclusion that the appellant's commercial viability would be substantially unaffected by the grant of the FM licence without proceeding to a detailed finding of projected income and expenditure. We should say however that in most cases it would be desirable for the Tribunal to make findings of projected income and outgoings when considering the matter of the commercial viability of a service. As the Full Court of this Court said in Australian Broadcasting Tribunal v. Wesgo Communications Pty Ltd (unreported 18 August 1989) at 16 the legislature in the concept of commercial viability of a service was:
   

"dealing with a practical question which turned upon the financial feasibility of the operations conducted by the relevant licensee with respect to the relevant service."

1. By commercial viability is meant "financial sustainability".

2. We should add that while it is clear the Tribunal did not accept the evidence of the appellant it was not, in our opinion obliged by s.25B of the Act to set out its reasons for failing to accept that evidence.

3. The fourth submission of the appellant alleged a breach of natural justice or, as it is more often called, a breach of procedural fairness. It was submitted that the Tribunal had requested the appellant to supply it with a copy of the appellant's application for a supplementary licence, that this had been delivered to the Tribunal omitting programming proposals and that the Tribunal at paragraph 4.18 of its reasons had made a finding adverse to the appellant without giving the appellant an opportunity to be heard.

4. Davies J dealt with this point shortly. His Honour said:
   

"As the member constituting the ABT did not request the programming proposals from Mr Robertson of 2QN, it would seem unfair for the ABT to have taken into account the fact that detailed programming proposals for the supplementary licence had not been lodged with the ABT.

Nevertheless, I am satisfied that this was a very minor point and it was not on this ground that Rich Rivers' submissions were rejected. It seems likely, moreover, that in para 4.18 the ABT was merely setting out submissions made on behalf of IFM, and not itself raising the point."

1. Paragraph 4.18 of the Reasons of the Tribunal read as follows:
   

"IFM submitted in response that the survey material lodged by it shows that there is strong public demand throughout the service area of the proposed new licence for the introduction of a new competing commercial FM radio service. IFM submitted that its well developed, realistic programming proposals would result in an improved overall level of service to the whole of the community within the service area, including that part of it served by 2QN. No detailed programming proposals for a supplementary service were put to the Tribunal by Mr Robertson on behalf of 2QN at any stage in the inquiry."

1. With respect to the submission, there was no finding adverse to the interest of the appellant made in this paragraph of the Tribunal's reasons. It may be noted that this paragraph was the only paragraph to refer to the matter. The Tribunal was clearly stating the submission of IFM and noting that the programming proposals were not put before the Tribunal. It made no finding based upon the failure to provide programming proposals and there could accordingly be no breach of procedural fairness entitling the appellant to relief from this Court.

2. The final submission asserted that the Tribunal had misdirected itself as to the question to be decided when in paragraph 4.23 it said:
   

"The issues that the Tribunal has to consider in deciding whether or not an independent licence should be granted are:

1) 2QN's commercial viability; and 2) whether the public interest would be better served by the grant of a new independent licence, or by the grant of a supplementary licence to 2QN, and possibly to 3SR as well."

1. Davies J expressed the view that the heading to the same effect, viz. "Should the Tribunal Refuse to grant a New Independent Licence and grant a Supplementary Licence to 2QN?" was a slightly inaccurate note of the subject being discussed. With that observation we agree. The reasons of the Tribunal proceed in a way that makes it clear that the Tribunal was well aware that, in the hearing before it it did not have power to grant a supplementary licence to the appellant. However the Tribunal was considering the interests of the appellant in a way clearly not adverse to the appellant as part of its perceived duty to consider the public interest. In so doing the Tribunal did not misconceive its function in a manner in any way adverse to the appellant, even if it might be argued that the possibility of the appellant being granted a supplementary licence was irrelevant to the determination of the issue before the Tribunal under s.83(6).

2. It follows, in our opinion, that the appeal must be dismissed with costs.