Television Capricornia Pty Ltd v Australian Broadcasting Tribunal

Re: TELEVISION CAPRICORNIA PTY LIMITED
And: AUSTRALIAN BROADCASTING TRIBUNAL; IMPARJA TELEVISION PTY LIMITED and THE
ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA (Interested Party)
No. NTG 6 of 1986
Broadcasting

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY GENERAL DIVISION
Wilcox J.

CATCHWORDS

Broadcasting - Licence application - Remote area commercial television service - Financial capability of successful applicant - Budget assumptions of applicant - Submission that no evidence of financial capability - Nature of "no evidence" ground in Administrative Decisions (Judicial Review) Act - Whether finding of financial capability is precondition in law to decision to recommend a particular application - Whether evidence demonstrated that financial capability "did not exist" - Supportability of findings of Tribunal in relation to various budget items.

Broadcasting Act 1942 ss.18, 83

Broadcasting and Television Amendment Act 1985 s.102

Administrative Decisions (Judicial Review) Act 1977 s.5

Allinson v. General Council of Medical Education and Registration (1894) 1 QB 750, Ashbridge Investments Ltd v. Minister of Housing and Local Government (1965) 1 WLR 1320, Coleen Properties Ltd v. Minister of Housing and Local Government (1971) 1 WLR 433, Maradana Mosque Trustees v. Mahmud (1967) AC 13, Khera v. Secretary of State for the Home Department (1983) 2 WLR 321, Smith v. General Motor Cab Company Limited (1911) AC 188, Minister for Immigration and Ethnic Affairs v. Pochi (1980) 44 FLR 41, Regina v. Deputy Industrial Injuries Commissioner; ex parte Moore (1965) 1 QB 456, Mahon v. Air New Zealand (1984) AC 808, The Queen v. Australian Broadcasting Tribunal; ex parte 2HD Pty Limited (1979) 144 CLR 45, Secretary of State for Education and Science v. Tameside Metropolitan Borough Council (1977) AC 1014, Caswell v. Powell Duffryn Associated Collieries Limited (1940) AC 152, Holloway v. McFeeters (1956) 94 CLR 470, Western Television Limited v. Australian Broadcasting Tribunal (Pincus J., 4 November 1986, not reported) referred to.

HEARING

SYDNEY

#DATE 23:12:1986

Counsel for the Applicant: W.H. Nicholas QC with D. Russell QC

Solicitors for the Applicant: Morris, Fletcher & Cross

Solicitor for the First Respondent: R. Orr

Solicitors for the First Respondent: Australian Government Solicitor

Counsel for the Second Respondent: D K Catterns

Solicitor for the Second Respondent: J. Corker

Counsel for the Interested Party: L P Robberds QC with D Thompson

Solicitors for the Interested Party: J. B O'Rourke Crown Solicitor for the Northern Territory

ORDER

The Application be dismissed.

The applicant, Television Capricornia Pty Limited, pay to the respondents, the Australian Broadcasting Tribunal and Imparja Television Pty Limited, their costs of the Application.

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

JUDGE1

This is an Application, brought under the Administrative Decisions (Judicial Review) Act 1977, whereby Television Capricornia Pty Limited, the applicant, challenges a decision of the first respondent, the Australian Broadcasting Tribunal, to make a recommendation to the Minister for Communications under the Broadcasting Act 1942 -- formerly the Broadcasting and Television Act -- that a remote commercial television service (RCTS) licence be granted to Imparja Television Pty Limited, the second respondent. The Attorney-General of the Northern Territory, whose government took an active part in the inquiry which preceded the decision of the Tribunal, has been admitted as an interested party and has put submissions in support of the case argued on behalf of the applicant.

The inquiry

On 31 October 1984 the Minister for Communications issued a direction to the Tribunal requiring it "to hold an inquiry in accordance with Division 3 of Part II of the Act and make recommendations to me on the following:

Who would be the most appropriate applicant to be granted a licence to provide a Regional Commercial Television Service by satellite in each of the following regions and under what circumstances:

(i) NSW, Victoria and Tasmania;

(ii) Queensland;

(iii) South Australia and the Northern Territory;

(iv) Western Australia."

The Minister directed that, in conducting its inquiry, "the Tribunal shall have regard to:

1. The procedures and practices set out in Part III B of the Act for the grant of licences;

2. The licensing criteria applicable in the grant of a licence;

3. The following specifications for RCTS licences:"

(Here followed a list of technical specifications, involving the use of space transponders along with terrestrial trasmitters).

"4. The intentions of the Government

expressed in my Statement to the Parliament on 10 October 1984."

Pursuant to the Minister's direction the Tribunal embarked upon a far reaching inquiry, in relation to which it has now delivered four reports. The First Report, delivered on 28 June 1985, contained a general evaluation of the opportunities for, and problems associated with, the delivery of commercial television services to remote parts of Australia by the use of space transponders carried by a communications satellite. In that report the Tribunal made a recommendation for the grant of a remote television licence for area (iv) -- Western Australia -- in favour of Regional Television Western Australia Pty Limited on the condition that the service be provided on behalf of that company by Golden West Network Ltd. The Second and Third Reports, which were delivered respectively on 30 September 1985 and 19 December 1985, dealt with areas (ii) and (i). They are not presently relevant.
In August 1985, following the delivery of the First Report, the Tribunal held public hearings at Alice Springs in relation to the two applications which it had received for licences for the central zone. These applications were from Television Capricornia and Imparja, two rather different entities. Television Capricornia is a wholly owned subsidiary of Territory Television Pty Limited, the operator of the Darwin commercial television service NTD-8. The proposal of Television Capricornia was that the RCTS would be based in Darwin, co-sited with NTD-8, and that Territory Television would finance, by way of inter-company loans, the capital expenses of the RCTS and Television Capricornia's initial operating losses. Imparja is a company formed by the Central Australian Aboriginal Media Association (CAAMA), a non-profit assiciation which has operated a public radio broadcasting station in Alice Springs since 1980. The proposal was that A class shares, with voting rights, would be issued to CAAMA, to various Aboriginal Land Councils, and to certain other Aboriginal organizations. B Class shares, not carrying voting rights, would be issued to individuals who contributed capital funds to the company. The articles of the company require that, at all times, a majority of the shareholders of the company shall be Aboriginal organizations or Aboriginal persons or persons of Aboriginal descent. Nonetheless, the company proposed, if its application was successful, to provide programs of interest to all sections of the community within its transmission area. In order to assist the directors two advisory committees, a Management Policy Advisory Committee and a Program Advisory Committee, were envisaged.
The Tribunal considered these two applications and reached a preliminary view that neither applicant qualified for the grant of a licence. It issued a Draft Report in which it identified the perceived deficiencies of each applicant: in the case of Imparja, lack of financial capacity; in the case of Television Capricornia, the inadequacy of the proposed service.
The applicants were given the opportunity to address the deficiencies referred to in the Draft Report and to put further material before the Tribunal at a resumed hearing in March 1986. Each did so. The Tribunal gave consideration to this material. On 18 August 1986, the Tribunal delivered its Fourth Report in which it made a recommendation in favour of Imparja.

The case for the applicant: "no evidence"
The Application specifies three grounds of review viz:

"1. The Respondent erred in law in finding that Imparja had the financial, technical and management capabilities necessary effectively to provide a remote commercial television service.

2. Further, or alternatively, the Respondent found that Imparja had the financial technical and management capability necessary effectively to provide a remote commercial television service in circumstances where there was no evidence or other material to justify the making of such a finding.

3. Further, or alternatively, the Respondent's decision was otherwise contrary to law."

At the hearing counsel for the applicant concentrated their attention upon ground 2. They put no separate submissions in support of either ground 1 or ground 3. The gist of their case was that there was no evidence to support the conclusion expressed by the Tribunal, in para.3.71 of the Fourth Report, that "Imparja has the financial capability necessary to effectively operate the RCTS licence". In aid of that case counsel discussed in some detail various items in the budget documents presented on behalf of Imparja to the inquiry, suggesting that the evidence did not enable the Tribunal to be satisfied that certain of the projected revenues would be available and that the evidence showed that the actual cost of certain items of necessary expenditure would exceed that allowed in the budget. The true figures, it was said, would result in a cash flow insufficient to allow Imparja to maintain the service.
It will be necessary to discuss in more detail the submissions regarding financial capability. But, before doing so, it is convenient to refer to the nature of the "no evidence" ground and to consider the process upon which the Tribunal was engaged in coming to its ultimate decision.
Although the view has been expressed that "no evidence" is not a necessary independent ground for judicial review of administrative decisions -- see Towner "No Evidence and Excess of Jurisdiction in Administrative Law" 1978 NZLJ 48 -- the ground is recognized as an independent ground at common law: see Wade "Administrative Law" (5th ed) pp. 287-293, de Smith "Judicial Review of Administrative Action" (4th ed) pp.133-134. However, the reported cases provide little guidance as to the principle underlying the ground or as to the limits of its application. All of the cases, of which I am aware, in which "no evidence" has been treated as a separate ground were cases in which the power to make the relevant decision depended upon the prior establishment of a particular fact, it being held in those cases that there was no evidence of that fact: see for example Allinson v. General Council of Medical Education and Registration (1894) 1 QB 750 at p.760, Ashbridge Investments Ltd v. Minister of Housing and Local Government (1965) 1 WLR 1320 at p1326, Coleen Properties Ltd v. Minister of Housing and Local Government (1971) 1 WLR 433 at p437, 439, 442, Maradana Mosque Trustees v. Mahmud (1967) AC 13 at p25 and Khera v. Secretary of State for the Home Department (1983) 2 WLR 321
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 Company Limited (1911) AC 188 at p190 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) 44 FLR 41 in which Deane J. at pp.63-68 adopted the statement of Diplock L.J. in Regina v. Deputy Industrial Injuries Commissioner; ex parte Moore (1965) 1 QB 456 at p488 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 re-stated 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 p821:

"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 existence of facts consistent with the finding and that the reasoning supportive of the finding, if it be disclosed, is not logically self-contradictory."

However, the present case is governed by the terms of the Administrative Decisions (Judicial Review) Act. To the extent that any express provision of that Act departs from common law rules the latter must yield to the intention of Parliament to allow under the Act a different right of review than that available at common law. Section 5(1)(h) of the Act provides as a ground of review "that there was no evidence or other material to justify the making of the decision". Section 5(3) provides:

"5. (3) The ground specified in paragraph (1) (h) shall not be taken to be made out unless--

(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he was entitled to take notice) from which he could reasonably be satisfied that the matter was established; or

(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist."

I will deal first with the application of that sub-section to s.5(1) (h), the ground argued in this case, deferring for the moment consideration of any effect upon other grounds.

Section 5(3)(a)
The first alternative postulated by sub-s. (3) requires consideration of the statutory framework against which a decision is made. This alternative is made out only in a case where the establishment of a particular fact is a precondition in law to the decision. In the present case, the direction of the Minister was for the holding of an inquiry under Division 3 of Part II of the Broadcasting and Television Act 1942. Section 18(2), which is contained in that Division, empowers the Minister to direct the Tribunal to hold an inquiry in accordance with the Division, inter alia, into any matter relating to the operation of the Act and to direct it to make recommendations in relation to that matter following the inquiry. The succeeding provisions in the Division deal with procedural matters such as notice, the conduct of inquiries, the taking of evidence, representation, dissenting views of Tribunal members, references of questions of law to this Court, procedure at inquiries, the making of reports and similar matters. Part IIIB of the Act deals with applications for the grant and renewal of licences. Section 83, which is within that Part, concerns original licence applications. That section was amended during the course of the inquiry conducted by the Tribunal at the Minister's direction. There is an issue between the parties as to whether it applies to the present case at all. But it is agreed that, if s.83(6) does apply, the relevant form of the sub-section is as at the date of the Tribunal's decision, that is as the sub-section stood after the commencement on 1 January 1986 of the Broadcasting and Television Amendment Act 1985:

"83 (6) The Tribunal shall not refuse to grant a 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;

(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;

(C) is otherwise capable of complying with the conditions of the licence;

(ii) where --

(A) the licence is a commercial licence whose service area is not a metropolitan service area; and

(B) the service area of the licence overlaps the service area of one or more licences of a kind to which sub-sub-paragraph (A) applies,

the need to avoid undue concentration of influence, whether direct or indirect, on the person and on the company or companies holding the other licence or licences;

(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;

(da) where the licence is a remote licence, it appears to the Tribunal, having regard 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; and

(C) is otherwise capable of complying with the conditions of the licence;

(ii) 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;

(iii) subject to the desirability of ensuring that, in all parts of Australia, there are available at least one service provided pursuant to a commercial radio licence or remote radio licence and one service provided pursuant to a commercial television licence or remote television licence, the need to avoid an undue concentration of the ownership or control, direct or indirect, of the media in the service area of the licence;

(iv) the likelihood that, if the Tribunal granted the licence, a person would, in relation to the licence or the holder of the licence, contravene an order of the Tribunal made for the purposes of section 92V;

(v) any relevant government policy statements;

(vi) any matters prescribed by regulations for the purposes of this paragraph;

(vii) any other matters or circumstances that the Tribunal considers relevant;

(e) where the licence is a supplmenetary licence . . .; or

(f) the circumstances are such that, if it granted the licence to the person --

(i) the Tribunal would have reasonable grounds for believing that a person would be contravening section 90C or 92 in circumstances that would constitute an offence against that section;

(ii) a person would be contravening section 90F or 92C; or

(iii) a condition specified in section 90G or 92D would be contravened."

The 1985 amending Act contained a transitional provision which, as itself subsequently amended so as to correct an incorrect reference to the date of the Minister's direction, read as follows:

"102. (1) Subject to sub-section (2), where, in its report for the purposes of the inquiry directed by the Minister on 31 October 1984, the Tribunal recommended that a remote radio licence or remote television licence be granted to a particular person, the Tribunal shall, as soon as practicable after the commencement date and without holding an inquiry, grant such a licence to the person under section 81 of the amended Act.

(2) Sub-section (1) does not require the Tribunal to grant a remote radio licence or remote television licence to a person where, if the licence were to be granted, a person would, in relation to the proposed licence or proposed licensee, contravene an order of the Tribunal made under section 92V of the amended Act.

(3) In this section, 'person' includes an association of companies."

Imparja argued that, in relation to any recommendation for a remote television licence made in a report pursuant to the direction of 31 October 1984, s.102 has the effect of over-riding s. 83(6). It was said that the effect of the section is to require the Tribunal to grant such a licence as soon as possible after 1 January 1986, the criteria in s.83(6) being irrelevant.
I do not doubt that the intention behind s.102 was to short cut the usual procedures in relation to at least some of the recommendations arising out of the Minister's direction of 31 October 1984. But I have difficulty in construing the section as applying to a recommendation made after 1 January 1986, as was the subject recommendation. An Act of Parliament generally speaks as at the date of its commencement, in this case 1 January 1986, and sub-s. (1) uses the past tense: "recommended". It seems to me that Parliament intended to refer only to such recommendations as had already been made when the Act was passed or would be made before 1 January 1986, notwithstanding that the recommendation might be contained in a report of the inquiry directed on 31 October 1984. However, it is not necessary to determine the matter. The Minister's direction required the Tribunal to have regard, amongst other things, to "(t)he licensing criteria applicable in the grant of a licence". The licensing criteria applicable at the date of the relevant recommendation were those set out in s.83(6) as it was then, and is now, framed. Consequently, it does not matter whether or not s.83(6) applied directly and of its own force. By reason of the Minister's direction it applied indirectly.
It is common ground that, if s.83(6) applied to the subject application, the criteria relevant for the Tribunal's consideration were those stated in para.(da), rather than those in para.(c); the subject application being for a remote licence. There are two significant differences between the two paragraphs. The first is that para.(c) requires the Tribunal -- in determining whether it is in the public interest to refuse to grant a licence to an applicant -- to have regard only to the specified criteria. Paragraph (da) has no such limitation. Secondly, and despite the fact that the Tribunal is not so limited, para.(da) specifies a much broader range of criteria than does para.(c); including any relevant government policy statements and any other matters or circumstances that the Tribunal considers relevant.
In The Queen v. Australian Broadcasting Tribunal; ex parte 2HD Pty Limited (1979) 144 CLR 45 at p49 the High Court of Australia referred to the width of the Tribunal's discretion in respect of the transfer of a radio broadcasting licence, no criteria then being specified in the Act:

"Here the problem lies in ascertaining what are the proper limits of the discretion. In the absence of some positive indication of the considerations on which a grant or refusal of consent is to depend, the discretion is 'unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view', to use the words of Dixon J. in Water Conservation and Irrigation Commission (NSW) v. Browning (1947) 74 CLR 492, at p.505. In that case his Honour went on to remark, (as he had done earlier in Swan Hill Corporation v. Bradbury (1937) 56 CLR 746, at p.758), 'on the impossibility, when an administrative discretion is undefined, of a court's doing more than saying that this or that consideration is extraneous to the power'."

It cannot be said, in relation to the present application, that there is no positive indication of the considerations on which a grant or refusal of consent is to depend. The Tribunal must take into account such of the matters specified in sub-para. (i) to (vi) as may be applicable to the case. But the omission of the words "only" and the terms of para.(vii) make clear that the Tribunal is not confined to those matters. Subject only to the "scope and purpose" concept referred to in 2HD, the Tribunal may take into account any other matter which it regards as relevant to the decision to be made.
The ultimate question for the Tribunal is whether it is advisable in the public interest to refuse to grant the licence to the applicant. The matters listed in sub-paras.(i) to (vii) are only matters to be considered in reaching a conclusion upon that question. As a matter of law, it would be open to the Tribunal to conclude that it was advisable in the public interest to refuse a licence to a person who satisfied each of the requirements of sub-paras. (i) to (vi). Similarly, the Tribunal might lawfully decide to grant a licence to a person who failed to satisfy one or more of those requirements if it thought that the failure was outweighed, having regard to the public interest, by some other relevant factor. It follows, of course, that, although the financial capability of a proposed licensee is always a matter for consideration, and no doubt would usually be regarded by the Tribunal as a very important matter, a finding that a particular proposed licensee has the financial capability to provide an adequate and comprehensive service is not, as a matter of law, a necessary precondition to a decision to grant a licence to that person. Consequently, to apply the words of s.5(3)(a) of the Administrative Decisions (Judicial Review) Act, the present is not a case in which the Tribunal was required by law to reach a decision to grant a licence to Imparja only if financial capability was established. It follows that para.(a) does not apply to the present case.

Section 5(3)(b)
The most striking aspect of para.(b) of s.5(3) is its restricted nature. It might have been thought appropriate to provide for an administrative decision to be struck down where the decision was based upon the assumption of a particular fact of which the decision-maker had no evidence. This would have been consistent with the approach enunciated by Lord Diplock in Regina v. Deputy Industrial Injuries Commission and, subsequently, in Mahon. And see Enright: "Judicial Review of Administrative Action" at p.667.
But a deliberate decision was made, in drafting the Administrative Decisions (Judicial Review) Act, to restrict more tightly the operation of this ground. The Commonwealth Administrative Review Committee (the Kerr Committee), which first recommended the establishment of a statutory system of judicial review, did not include "no evidence" amongst its recommended grounds of review: see Report para.258. This ground was added by the Committee of Review of Prerogative Writ Procedures (the Ellicott Committee), which examined the recommendations of the Kerr Committee. The Ellicott Committee adopted a suggestion made by Professor Wade for the insertion of a "no evidence" ground but commented, at para.43 of its report, that the ground

"would need to be carefully formulated because often discretions are exercised not on legally admissible evidence but on information available to the particular officer which he accepts. It would, for instance, create considerable problems if before a statutory discretion could be exercised an officer had to have such evidence before him. The ground which Professor Wade had in mind is one which would enable relief to be granted where the fact which the officer relied upon for his decision did not exist or where the officer or tribunal was required to act on evidence admissible before it or on facts of which it might take notice and there was no such evidence or no such facts to support findings of fact made by the officer or tribunal in exercising his or its discretion".

The explanatory memorandum for the Bill for the Administrative Decisions (Judicial Review) Act -- as to which see s.15AB(2)(e) of the Acts Interpretation Act 1901 -- shows that the Bill was based upon the reports of the Kerr Committee and the Ellicott Committee. In para.22 the explanatory memorandum refers to para.43 of the report of the Ellicott Committee and comments:

"The inclusion of this ground as formulated may have the effect of widening the grounds on which the courts would grant relief in Australia. The formulation is intended to embody the reasons for decision of the House of Lords in the Tameside case".

The reference was to Secretary of State for Education and Science v. Tameside Metropolitan Borough Council (1977) AC 1014, a case in which the House upheld a decision of the Court of Appeal quashing a direction by the Secretary of State which required a local education authority to convert all its schools to the comprehensive education system. The relevant statute conferred power to issue such a direction where the Secretary was satisfied that a local education authority was acting "unreasonably". The basis of the direction was that a failure to proceed with conversion -- the local authority had previously intended to convert and had then changed its mind -- would give rise to unacceptable difficulties for parents, given the imminence of the new school year. The members of the House of Lords held, amongst other things, that, although the Secretary's power was framed in subjective terms, the valid exercise of the power depended upon there being evidence before the Secretary that the local authority was acting unreasonably and that there was no such evidence. However, this conclusion in turn depended upon a finding that there was no evidence of such a degree of difficulty as to make the course proposed by the local authority unreasonable.
Tameside was apparently referred to in the explanatory memorandum in connection with cl.5(3)(b) of the Bill. There was not much doubt in 1977 that the absence of evidence of a jurisdictional fact was a ground of invalidity. Whether Tameside should be seen as a non-jurisdictional case is open to question; but there is no doubt that it was also a case in which the decision-maker had based his decision upon the existence of a particular fact -- unacceptable difficulties for parents -- which, the House found, did not in fact exist. It was apparently to meet that type of case that para.(b) was inserted.
In Tameside there was a positive finding of the non-existence of the relevant fact. Given this background, and what was apparently seen as some measure of breaking new ground, it is understandable that, when Parliament turned to non-jurisdictional findings of fact in s.5(3)(b), it required the applicant for review to show more than that there was no evidence before the decision-maker of the fact found, or assumed, as the basis of the decision. The applicant was required to negative the fact. This may constitute a heavy burden, especially where the facts are obscure.
Although it was not necessary as a matter of law for the Tribunal to find that Imparja had the financial capability to provide an adequate and comprehensive service, it did in fact do so. In para.3.71 of the Fourth Report the Tribunal said this:

"3.71 The question marks which exist as a result of the financial picture presented by Imparja cannot and should not be ignored. There is no doubt that some uncertainties still exist whether as a result of substantial reliance on government funding, or the almost axiomatic financial fragility of the RCTS operation, or even the lack of authority with which some of the financial projections were calculated and presented. However these uncertainties are properly considered in the context of an evaluation against the specific statutory criteria of financial capability. The Tribunal is only required to be satisfied about the applicant's capability; no more than this. Therefore the uncertainties which exist must be weighed against factors such as the financial achievements made by Imparja prior to the reconvened hearings, the availability of assistance to the applicant from expert financial sources, the successful track record of Imparja's sponsor CAAMA albeit on a smaller scale, the conservative approach taken in significant areas of the budget, the flexibility in the time-frame of introducing the proposed service, the projected positive cash flow throughout the initial periods of the licence and the substantial and special motivation underlying this application. On balance and on the basis of an evaluation of the evidence, the Tribunal concludes that Imparja has the financial capability necessary to effectively operate the RCTS licence."

In Chapter 5 of the Fourth Report the Tribunal considered the comparative merits of the applications by Television Capricornia and Imparja. It is clear that the Tribunal took into account its conclusion as to Imparja's financial capability in finding, at para.5.47, that "both applicants qualify for the grant of a licence". Having so found, the Tribunal went on to consider which of the two applications was the more suitable, in terms of public interest, for the grant of a licence. For reasons which it summarised at paras.5.50-5.51, it concluded that the Imparja application was the more suitable. It recommended a grant accordingly. It is clear that, although such a finding is not a precondition in law to a decision to grant a licence, the finding of financial capability made in this case was an essential step in the reasoning of the Tribunal. I accept the submission made on behalf of the applicant that this was a case in which "the person who made the decision based the decision on the existence of a particular fact", that is financial capability. The remaining question, under s.5(3)(b) of the Administrative Decisions (Judicial Review) Act, is whether financial capability "did not exist".
The extract from the report of the Ellicott Committee which I have set out above suggests that it was the intention of that committee that, in determining whether or not a relevant fact existed, the Court would not be confined to evidence formally before the decision-maker at the time of the decision. It may be that the non-existence of the fact would be susceptible of proof in court by admissible evidence in the ordinary way; with the result that, where such proof was lacking, the application for review would fail. The decision-maker, in defence of the decision, may be free to adduce evidence to rebut any suggestion emerging from the evidence of non-existence of the fact; and whether or not that material was actually considered at the time of the decision being made. (Of course, and depending upon the circumstances, the support of the decision by reference to material not actually considered might raise difficulties for the decision-maker in relation to other grounds, such as natural justice or failure to take into account a relevant consideration. But that is another matter).
In the present case it is not necessary to reach a concluded view upon the matter just mentioned. The only evidence which has been tendered in these proceedings is material which was before the Tribunal at the time of its decision. The contention made on behalf of the applicant is that this material demonstrates that Imparja does not in fact have the financial capability to provide an adequate and comprehensive service. I turn to it.

The budget items challenged by the applicant
The primary witness before the Tribunal in relation to matters touching the financial capacity of Imparja was Mr B D Walsh, a communications consultant to CAAMA. Mr Walsh has had experience in Australia, East Africa and the United Kingdom as an engineer, broadcaster, administrator and educational media producer. He is a former Vice President of the Public Broadcasting Association of Australia, Chairman of Open Channel, Melbourne and an executive member of the Television Society of Australia. He referred to client projects in areas relevant to the inquiry as including work for broadcasting organizations and data systems providors, for Aussat Pty Limited, the national satellite company, for the Australian Film Commission, for the Aboriginal Development Commission and for the Task Force on Aboriginal broadcasting.
Mr Walsh produced, and explained to the Tribunal, a draft budget for the Imparja proposal. During the course of the hearing the draft was amended. I will refer only to the final version. The budget dealt with six periods, each of one year and commencing in 1986-87: the year in which it was assumed that costs would begin to be incurred. Various items of income and expenditure were set out for each year. No distinction was made between items of a capital nature and items of a revenue nature; the document was concerned with cash flow. Upon the income side a figure was inserted, in respect of each year, for the following five items, each of which is under present attack: Northern Territory Government, commercial sponsors, Commonwealth Education/National Aboriginal Education Committee, infomercials and time sales. The list of outgoings was dominated in all but the first year by the projected cost of using the Aussat communications satellite. The applicant contended that the evidence demonstrated that this figure was seriously understated. It also submitted that there was no evidence to support the Tribunal's acceptance of two other items of expenditure: leasing costs and overheads.

Both applicants before the Tribunal assumed substantial income each year from the Northern Territory Government. This was not seen by either of them as a gift. The evidence given to the Tribunal by Mr I A Prince, Director of the Office of Technology and Communications within the Northern Territory Government, was that his government was interested in purchasing what he called "a package of services" from the successful licensee. When he first gave evidence, in August 1985, Mr Prince described this package as including "such items as fully serviced television time, voice and data circuits, studio production support, staff training and other services offered by the licensee such as computer communications support and so on". He said that the composition of the package would be finalised after negotiations with the licensee. The primary purpose of the package, he said, would be "to support extension education services and to facilitate other Northern Territory Government activities such as Aboriginal health worker training, public service staff development, general health education and more". The annual fee was to be negotiated but Mr Prince indicated that the government was "willing to consider a maximum fee of up to $2,000,000 in any one year for the duration of the licence and for the duration of current federal government policy". Mr Prince added that the Northern Territory would "strongly support a request by the licensee for federal government financial assistance, either directly or indirectly through discounting of transponder hire and other costs".
Although, in August 1985, Mr Prince referred to various matters still to be resolved, he made no distinction, in relation to the intentions of his government, between the two applicants. However, at the resumed hearing in March 1986 a distinction was made. At that time Mr Prince read to the inquiry a statement authorized by his government which included the following:

"2. The Northern Territory has thoroughly reconsidered its position with respect to financial support for RCTS having due regard to:

* the evidence provided by all parties

* the Tribunal's draft report

* subsequent events

* the Territory's present circumstances and plans, and

* the fact that a licence grant was not previously recommended.

The Northern Territory further qualifies its previous offer to purchase a package of services from the eventual licensee. The Northern Territory will not enter into an agreement with the licensee unless it is reasonably convinced that the licensee is capable of adequately and reliably delivering the package of services for all Territorians on a continuing basis. Should this not be the case, the Northern Territory will seek to secure the delivery of these services through means other than via the RCTS.

On the basis of the present evidence and subject to the outcome of the forthcoming hearings and of negotiations, the Northern Territory is of the view that Television Capricornia may be able to satisfy this additional qualification should its application succeed.

Having regard to the evidence on overall financial, managerial and technical capabilities, the Northern Territory is not conviced that Imparja Television will be capable of complying with the additional qualification, even if its application should succeed.

In the event that no licence is recommended, the Northern Territory offer will lapse unless a consortium or other joint venture preferably involving both present applicants and which is capable of winning the licence, is formed. The Northern Territory would be pleased to facilitate the formation and development of such a consortium or joint venture. The offer to purchase services would be subject to the same terms, conditions and qualifications as previously outlined."

In answer to a member of the Tribunal, Mr Prince went on to say that the Northern Territory Government was awaiting the outcome of the inquiry before finally satisfying itself upon the qualifications of Television Capricornia. In respect of Imparja, Mr Prince said that, although the government had made up its mind, it would look again at the matter depending upon the outcome of the inquiry. In subsequent cross-examination Mr Prince said that the government would give consideration to the recommendations of the Tribunal. He confirmed that the government did not see any payment as being a donation but rather as a payment for the aquisition of "services that in its judgment the department sees as an efficient way of fulfilling a number of its functions". This would be a consideration, he said, if Imparja were the successful applicant, as much as for Television Capricornia.
At a later stage of his evidence Mr Prince assented to the following summary of his government's position:

" . . . the Territory on reviewing its position as a result of the hearing as it has progressed so far and considering the Tribunal's interim report has come up with a position: that its stated $2,000,000 funding in return for a package of servicing is still available to both applicants but subject to certain matters which are within the knowledge of the Territory government it has more confidence, at this stage, that Television Capricornia would be able to meet its requirements and qualifications than it has about Imparja.

. . .

And the difference between the two, given the availability of the Tribunal's preliminary views in its draft report, then relates to what you have identified in your list at paragraph 2 as subsequent events and the Territory's present circumstances and plans."

Mr Prince did not disclose what were the matters, identified only as "subsequent events" and "the Territory's present circumstances and plans", which were relevant to the government's attitude to Imparja. But he told the Tribunal that they did not relate to criteria specified in the Broadcasting Act concerning licence operations. This means, of course, that they did not reflect upon the fitness of Imparja to hold a licence or its capabilities to provide a television service. Consequently, Mr Prince was not suggesting that Imparja would be unable to deliver the required services.
In his budget Mr Walsh assumed a receipt by Imparja from the Northern Territory Government of $1,500,000 in 1987-88, the first year of transmission, reducing each year to the figure of $1,268,000 in 1991-92.
In its report the Tribunal dealt at some length with Mr Prince's evidence: see paras.2.61-2.70, 3.5-3.7. It is not suggested that the Tribunal's summary of the evidence is in any way inaccurate. The Tribunal's conclusion on the matter was set out as follows:

"3.8 While the revised position of the Northern Territory Government might be seen to have significant implications for Imparja's financial projections, the Northern Territory Government did not state at any stage it would not do business with Imparja should that application succeed. Indeed, the prevailing logic of the Government's submission was that a licence should be granted in the central region above all other considerations. Further, if the Tribunal determines that Imparja meets the statutory licence grant criteria and is found to have the necessary capabilities to operate the service on a continuing basis, such findings presumably would have considerable weight with the Northern Territory Government in the event that Imparja is recommended for the grant of the licence. Therefore the Tribunal is of the view that while the form of financial support has not been finally determined, these funds will be available to whichever applicant is successful. Both applicants include the same estimates of the Northern Territory Government's financial commitment in their financial projections and the Tribunal considers these estimates to be appropriate and soundly based on the evidence. Therefore the Tribunal considers it appropriate to take the Northern Territory Government's projected contribution into account when evaluating the financial capability of both applicants for the central region licence."

The second challenged item is commercial sponsorship. In his final budget Mr Walsh assumed income from commercial sponsors in the total sum of $1,000,000. Mr Walsh said that no specific promises had yet been received. However, he did give the Tribunal, in confidence, the names of four nationally known companies each of whom, he said, had indicated interest in becoming a sponsor subject to Imparja receiving a television licence and to any sponsored activity being recognized as a bicentennial project. In this connection the evidence was that the Australian Bicentennial Authority had already promised to provide $2,500,000 towards the establishment costs of the station -- being portion of a total of $7,000,000 earmarked by the Authority for its Aboriginal and Torres Strait Islander program. Mr Walsh said that the Authority had actively encouraged Imparja to seek corporate sponsorship to supplement its grant.
Mr Walsh's estimate of sponsorship income was in issue at the inquiry. He explained to the Tribunal that he saw the combination of space age technology and Aboriginal culture in the heart of Australia as something potentially attractive to major Australian companies, particularly if the project were related to the bicentennial celebrations. The Tribunal accepted his view, saying at para.3.25 of its report:

"Combined with the potential income available through corporate sponsorship for the reasons outlined by Mr Walsh, and the lobbying ability of Imparja which has seen it lift its level of funding from virtually nothing to potentially $4.3 million, it is not unreasonable to expect that Imparja can secure the missing $1 million if it is granted the licence."

The third item challenged by the applicants is income from the Commonwealth government, provided through the National Aboriginal Education Committee (NAEC). Mr Walsh budgetted for $700,000 in 1987-88 rising to $1,024,870 in 1991-92. The increase represents 10% per year and was assumed with inflation in mind.
The evidence before the Tribunal included a letter from the Chairman of NAEC to the Director of CAAMA. It was dated 5 February 1986, about a month before the resumed hearing. The letter expressed the "very strong support" of the Committee for Imparja's licence application. It went on:

"As you know the NAEC is very interested in having Government provide appropriate education to Aboriginal adults and children throughout Australia, our awareness of the dearth of educational opportunity in remote areas is considerable. I believe that should you be granted the licence educational experiences and opportunities for access to appropriate education for our people in these areas will move ahead apace.

It is my intention to approach the Federal Government through our Minister, the Hon. Senator Susan Ryan for the development of a program budget of at least one and a half million dollars to enable us to produce educational programs. I believe the NAEC would expect your organization to be responsible for such program development with our education network acting in an educational advisory capacity.

I cannot stress strongly enough to you, although you are fully aware yourself, of the intense need to facilitate even the basics of Education such as functional literacy and numeracy to the many children, youth and adults in remote areas. It is my view that your gaining the licence is our best and perhaps our only opportunity to undertake education program to these areas. I also realise that more than one medium is necessary, however, at present in a significant number of isolated communities there is no medium for education to be facilitated."

The Tribunal also had a telex from Senator Ryan, dated 14 March 1986, in which the Minister referred to a discussion with the Director in Alice Springs on 6 March and expressed her support "for your aims and activities, with particular reference to their potential for helping in the implementation of Commonwealth objections in Aboriginal education". Senator Ryan went on:

"I AM CURRENTLY EXPLORING THE POSSIBILITY OF SOME FINANCIAL SUPPORT FOR YOUR EDUCATIONAL ACTIVITIES. IF YOU ARE SUCCESSFUL IN YOUR APPLICATION TO THE AUSTRALIAN BROADCASTING TRIBUNAL, I AM SURE THAT THE COMMONWEALTH WOULD WISH TO USE YOUR ACCESS TO THE SATELLITE SERVICE FOR EDUCATIONAL PURPOSES. THE NEED TO IMPROVE THE PROVISION OF EDUCATIONAL SERVICES TO REMOTE ABORIGINAL COMMUNITIES IS RECOGNISED BY THE GOVERNMENT."

Additionally, there were letters from both the Department of Employment and Industrial Relations and the Department of Social Security indicating an interest in using the facilities of the proposed service for the purpose of improving the services delivered by those departments to people in remote areas. No estimate was made in either letter of the likely value of any time which might be acquired by the department.
In para.3.51 of its report the Tribunal referred to the sum of $1,500,000 mentioned by the Chairman of NAEC. It noted that "no definite commitment is forthcoming" and that Imparja had allowed only $700,000 from this source. Some of the available funds would be devoted to program production, and not necessarily received by Imparja. The $700,000 was a distribution cost and available to the transmitting licensee.
There was no issue before the Tribunal upon the question whether $700,000 would be available to Imparja out of total expenditure of $1,500,000. But it was said that there was no guarantee that any money would be made available. Any such grant would depend upon allocation from the Commonwealth Budget in any particular year. The Tribunal understood this. At para.3.69 of its report it said:

"3.69 The projected levels of income from sources such as the Commonwealth Department of Education are estimates only but at the same time Imparja clearly understands the potential of ancillary services which could be developed in conjunction with RCTS and intends to exploit this as a means of subsidising RCTS. This also reinforces the motivation of Imparja to extend the availability of additional services as early as possible consistent with government policy on these matters."

Mr Walsh allowed in his budget income -- $300,000 in 1987-88 rising to $601,600 in 1991-92 -- from what he called "infomercials". This inelegant word is, nonetheless, revealing as to its meaning. It refers to paid announcements of a non-commercial nature, instructional announcements upon matters of public concern, including the availability of government services, rather than advertisements designed to increase commercial revenues. Mr Walsh spoke of a positive response from the South Australian government to a new concept for presenting government information in a film of three to five minutes duration. He also mentioned the interest in the concept of various Commonwealth agencies and Aboriginal organizations. He said that the income estimates in the budget were based upon his general knowledge and his assessment of the potential revenue available.
Counsel for the applicant submitted that the Tribunal was not justified in accepting the accuracy of Mr Walsh's projection of income from infomercials. He pointed out that the concept was comparatively new and that the realisation of the figures depended upon future spending decisions by advertisers, primarily governments. At para.3.59 of its report the Tribunal summarized Mr Walsh's evidence on this matter before setting out this conclusion:

"3.60 An important feature of the Imparja proposal compared with earlier projections is that the Imparja has no longer budgetted as revenue, any operating subsidies from outside bodies. However the potential support of government departments and other possible purchasers of programs have been taken into account in casting the budgets for ancillary services, program services and informercials. It would appear on the evidence that there is potentially some overlap in the budgetting process for these revenue items. Therefore, while the calculations might be described as semi-quantitative, there is considerable supporting evidence from a range of organisations . . . plus statements that potential revenue from services such as the switchability of the transponder from the spot to the national beam haven't been taken into account, for the Tribunal to conclude that the budgetted figures are achievable."

Mr Walsh assumed income from what he called "time sales", that is ordinary commercial advertisements ranging from $1,228,500 in the first year of operation to $4,300,810 in 1991-92. Both at the first hearing and at the resumed hearing Mr Walsh was cross-examined in some detail about advertising rates and market penetration. He referred to discussions which he had had with one leading advertising agency. For reasons which he gave, he expressed the opinion that the estimates were conservative; a view not shared by Mr L C Ah Toy, the secretary of Television Capricornia. Mr Ah Toy referred to discussions he had had with certain advertisers and gave reasons for adopting lower estimates. The Tribunal's conclusion on the matter was as follows:

"3.63 While Imparja's calculation of the time sales revenue was not based upon extensive consultation with advertisers or advertising agencies, nor upon any detailed analysis of national versus local advertising reveue, the resultant budget does conform with calculations for regional markets and other RCTS zones. The calculations and notably the 'resistance factor' properly attempt to take into account the wide range of factors which will come to bear in the central zone and which were summarized by the Tribunal in its Draft Report at paragraphs 3.61, 3.62 and 3.64."

I turn now to the three expenditure items which were challenged by the applicant. The first, and most significant, item is the projected satellite cost; estimated by Mr Walsh at $2,721,600 in 1987-88 and rising by 4% each year to $3,183,890 in 1991-92. These estimates depart in two respects from what the present applicant says are the charges which Aussat, the operator of the satellite, proposes to make to the central RCTS licensee. In the first place the cost in year 1 for a service described as level 3 service -- the level proposed by both applicants -- was quoted at $2,721,600, the figure adopted by Mr Walsh. But this was sai to be a 1985-86 figure. Mr Walsh assumed that it would be available to Imparja in its first year of operation 1987-88. Secondly, it was said that Aussat projected annual increases of 10% as against Mr Walsh's assumption of 4%.
There was no evidence from any officer of Aussat at either of the two sittings of the Tribunal in relation specifically to the central RCTS. However, the Tribunal did go into the matter of satellite charges in some detail in its First Report; this being a matter of critical importance to the feasibility of remote television generally. In that report the Tribunal set out its findings in relation to charges. Those findings have not been challenged in these proceedings. The Tribunal quoted a year 1 cost, for the central zone and assuming level 3 protection, of $2,721,600: see para.4.87. This was apparently a figure supplied as at 1 July 1985. In para.4.88 the Tribunal said that the rate for transponder hire would be reviewed annually by Aussat. A formula for review of charges was set out which was described as setting "an upper limit of change to Aussat charges". The Tribunal said: "Based on current indicators an average rate of change would result in a 9.5-10 per cent increase each year", but it added that Aussat hoped that "the full effect of the formula will not be applied in all of the first five to seven years". Aussat envisaged that variations to its standard form of contract with customers would be possible by negotiation in the particular case.

Mr Walsh was cross-examined before the Tribunal as to the reason why he departed from the figure of $2,721,000 in 1985-86 with increases thereafter at 10%. He described this scale as "a negotiable figure". He agreed that Aussat had not yet accepted his figures. He said that it had not yet been asked to do so. However, he added that "Aussat has been informed of the position CAAMA was adopting and responded verbally to the view that they were not suprised". Mr Walsh gave evidence that the Golden West Network was working upon the basis of 4% escalation in connection with the Western Australian RCTS, a statement consistent with the attitude of that company as described by a witness in the earlier part of the inquiry: see First Report para.10.73.
The Tribunal summarized at para.3.42 of its report the evidence given by Mr Walsh relating to satellite costs. It made no express comment upon the reasonableness of Mr Walsh's approach but it is evident from its final conclusion that it accepted his general approach. If the Tribunal had thought that Imparja would in fact be forced to pay $2,721,600 for 1985-86 rising by 10% per annum, it could hardly have avoided the conclusion that the project would be rendered unviable.
The second cost item is of much less significance. Mr Walsh said that Imparja proposed to lease its operating equipment from a company identified as NEC. At an earlier stage NEC had indicated that it would require a bank guarantee. Mr Walsh conceded that NEC had not subsequently said otherwise and that he had made no allowance for the cost of a bank guarantee. There was no evidence of what would be the cost to Imparja of obtaining such a guarantee. Mr Walsh also agreed that he had assumed a lease over 10 years, whereas the maximum permissible duration of the proposed licence was seven years.
The Tribunal made no comment in its report upon the cost of a bank guarantee. In relation to the term of the lease it said:

"While there are some uncertainties that the proposed lease agreement could be concluded, it seems reasonable in the circumstances of an owner of a television licence with access to considerable government support that such an agreement is feasible."

The third item involves overheads. There was a dispute between Mr Walsh and Mr Ah Toy as to the amount of a proper allowance. It is not necessary to go to the detail of their evidence. The gap between them narrowed in cross-examination but the Tribunal did conclude that in some respects Mr Walsh had been too optimistic. At para.3.38 of its report the Tribunal said:

"However it remains that the allowance for production materials and overheads as presented by Mr Walsh's evidence would appear to be insuficient and that the applicant would need to draw on additional sources of funds such as savings from the RUCS program (para 3.30) or review its planned timing and level of services in order to maintain a positive cash flow."

Financial capability

In considering the above matters it is necessary to bear in mind that the finding made by the Tribunal which is under present attack was "that Imparja has the financial capability necessary to effectively operate the RCTS licence". The applicant has the onus under s.5(3)(b) of the Administrative Decisions (Judicial Review) Act of demonstrating that Imparja did not have that capability. The particular matters relied upon by the applicant are relevant to that question but they do not constitute the whole picture. In relation to financial capability the Tribunal was entitled to take into account its own assessment of the capabilities of those responsible for Imparja's activities. It had the benefit of hearing evidence from several such persons including, importantly in the present context, Mr Walsh. Mr Walsh gave evidence at both the original and the resumed hearings. On paper his qualifications are impressive. It seems not to have been suggested to him that he lacked the competence to make the assessments necessary in the formulation of a budget for the proposed service. He was cross-examined in detail and at length. The members of the Tribunal could not have failed to have formed views, one way or the other, about his reliability. Although they did not refer in their report to any such views, their acceptance of his estimates -- with some minor qualifications -- indicates that they must have been favourably impressed. They did comment in para.3.195 upon Imparja's success in improving its financial position in the period between August 1985 and March 1986:

"The improvement in the case presented by Imparja was marked and reflected well on the efforts made and approach taken to the reconvened hearings. Most impressive was the ability of the applicant to substantially secure its financial capability in a very short space of time. With limited financial backing at the first hearing, Imparja had effectively obtained funds totalling $4.3 million and an offer from the South Australian Government to guarantee a loan facility to the value of $1 million."

In assessing financial capability, the Tribunal was entitled to take that performance into account.

The extracts from the Tribunal's report which I have quoted indicate that the Tribunal substantially accepted Mr Walsh's estimates. But it acknowledged that there were uncertainties. At para.3.26 the Tribunal said:

"3.26 In summary while there are still some doubts about the basis for Imparja's projections of the necessary financial resources, a substantially improved financial picture is now apparent compared with the evidence given during the first hearings. The financial picture painted by all applicants for all RCTS licences is murky in parts. In Imparja's case there appears to be some additional areas where the picture is lacking in definition. However when the Tribunal stands back and views the total picture it can envisage the required financial resources being obtained as a result of ongoing efforts by the applicant and because of its unique nature."

The Tribunal addressed itself to the position which would arise if the estimates proved over-optimistic. At para.3.70 it referred to the "option to phase in the central region service using the western region RCTS" which would "allow Imparja time to develop its capacity for sales and marketing, ancilliary services and production as well as the corresponding revenues generated by these activities". After referring to the need for co-operation with Golden West Network, the Tribunal expressed the view "that Imparja has the capability to maintain a positive cash flow although this will be directly related to the level of service provided and the terms and conditions of any service agreement that eventuates with GWN". In other words, if the estimates should prove too optimistic, it would be possible to modify the transmission proposals and the level of service provided so as to maintain a positive cash flow. No attack was made in this Court upon this conclusion.
The existence of evidence as to the capability of the persons involved and as to the existence of adequate flexibility to avert any cash flow problem necessarily precludes a finding that financial capability did not exist. It follows that it must be held, even without reference to the particular points of criticism, that the ground referred to in s.5(3)(b) of the Administrative Decisions (Judicial Review) Act is not made out. Nonetheless, in deference to the careful argument on behalf of the applicant and the Attorney-General for the Northern Territory, I will deal briefly with those matters.
In respect of the first matter, funds from the Northern Territory Government, counsel criticized the conclusion of the Tribunal, expressed in para.3.8, that "funds will be available to whichever applicant is successful". They submitted that, having regard to Mr Prince's evidence, such a conclusion is mere speculation unsupported by any evidence. The only evidence, they said, is that the Northern Territory Government is presently disposed not to deal with Imparja. In order to reach a conclusion that moneys were likely to be forthcoming from the Northern Territory Government there must, they suggested, be a basis for a positive inference to that effect. Reference was made to the speech of Lord Wright in Caswell v. Powell Duffryn Associated Collieries Limited (1940) AC 152 at pp.169-170:

"Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture."

See also Holloway v. McFeeters (1956) 94 CLR 470 at pp476-477

There is no question about the principle referred to in these cases, although its application may be difficult in particular cases. Both Caswell and Holloway were accident cases; in each case the courts were concerned with determining what had occurred on a past occasion. In the present case the Tribunal was concerned with the future: what was the likelihood that the Northern Territory Government would in fact pay to Imparja -- if it obtained the licence -- sums such as those contained in its budget. The Tribunal had to make a prediction as to the probable course of future events, based upon the facts disclosed by the evidence. As there was no challenge to either Mr Prince's authority or to his credibility, the Tribunal was bound to take into account his evidence as to the attitude of the Northern Territory Government; including, particularly, the statement that the government was not convinced that Imparja "will be capable of complying with the additional qualification, even if its application should succeed". But the Tribunal was also entitled to take into account a number of other matters: the government's earlier indication that it would deal with whichever of the two applicants obtained the licence, the fact that -- even in March 1986 -- it did not rule out the possibility of dealing with Imparja, and the fact that it never identified to the Tribunal the "additional qualification" to which it referred; although it conceded that this had nothing to do with a matter germane to a licence application such as fitness and capability. Most importantly, the Tribunal was entitled to take into account Mr Prince's evidence that the government's position regarding Imparja would be reviewed in the light of the Tribunal's decision and the fact that the overriding concern of the Northern Territory Government was -- and had always been -- that a commercial television service be provided for the central region as soon as possible.
If Imparja was the successful applicant, the Northern Territory Government could fulfil the governmental functions outlined by Mr Prince by means of such a service only if it dealt with Imparja. As the government had neither ruled out doing so nor given any reason for declining to use Imparja, it was not an unreasonable conclusion that, faced with a grant to Imparja and whatever its own preference might have been, the Northern Territory Government would be likely to deal with Imparja rather than to fail to fulfil the functions of which Mr Prince had spoken; and thereby incidentally to prejudice the viability of the service whose establishment it so much desired. I do not see these as matters of speculation. They are inferences available from the evidence, considered as a whole, and notwithstanding the reservations mentioned by Mr Prince. No question was raised as to the amounts of income from the Northern Territory Government assumed by Mr Walsh. These amounts were similar to those assumed by Television Capricornia and well below the maximum sums mentioned by Mr Prince.
The estimates of income from commercial sponsors and from the Commonwealth government also involved assessments of likely future conduct. In each case the Tribunal had evidence as to contacts which had already occurred. In no case was there any present commitment. But the Tribunal had evidence from Mr Walsh of the response of the four companies he named. It was entitled to form its own judgment -- with the advantage of its experience of the television industry -- upon the innate attractiveness of a sponsorship arrangement. No doubt the case in favour of accepting the estimate of $1,000,000 in sponsorship funds would have been strengthened if Imparja had called a representative of one or more of the four companies to confirm an interest. But the lack of such evidence goes merely to weight. It does not disentitle the Tribunal to accept Mr Walsh's assessment of the position.
The same observation applies to the estimate of Commonwealth funds; except that, in this case, the Tribunal had a letter from the Chairman of NAEC indicating the level of support to be recommended by his committee and evidence of the support of the relevant Commonwealth Minister. Of course, there could be no guarantee but there was a basis for confident prediction; especially having regard to the constitutional responsibilities of the Commonwealth in relation to the Aboriginal people.
The estimates of income from infomercials and time sales may also be considered together. The making of such estimates was a matter well within the province of a person of Mr Walsh's experience. The assessment of such evidence is no doubt a regular feature of the Tribunal's work. It is true that his estimates were criticized and that, in respect of time sales, Mr Ah Toy expressed a more cautious view. But these were matters for the Tribunal as the judge of the facts. There is no "no evidence" point.
I think that a similar comment may be made about the three challenged items of expenditure. In relation to the satellite charges Mr Walsh offered the view that Aussat's figures were negotiable. This view was consistent with the evidence noted by the Tribunal in its First Report. Mr Walsh had had some contact with Aussat in regard to the matter. He had some knowledge of the organization, having acted as a consultant to it. In assessing his evidence the Tribunal was entitled to use the expertise which it had acquired in connection with the investigation of remote commercial television services pursuant to the Minister's direction of 31 March 1984. Whether or not its acceptance of Mr Walsh's estimate was an appropriate finding of fact, there was material -- provided by Mr Walsh's own opinion as to the commercial position -- to support that finding.
The matter of the equipment lease is of minor significance. There is nothing to indicate that the cost of a bank guarantee, whatever it might be, would be significant in terms of financial capability. Similarly in relation to the term of the lease; although I would have thought that the Tribunal's comment on that matter was well justified. As to overheads, the Tribunal seems substantially to have accepted Mr Ah Toy's criticisms but to have not regarded these as going to financial capability.

Other grounds
As I have already mentioned, the only ground of invalidity relied upon -- at least in terms -- was that referred to in s.5(1)(h) of the Act. But, having regard to the authorities which suggest that "no evidence" may render a statutory decision invalid upon other grounds -- for example natural justice (s.5(1)(a)) and error of law (s.5(1)(f)) -- I have given some thought to the effect upon those grounds of the limitations contained in s.5(3).
On one view s.5(3) does not affect those grounds. In terms the sub-section refers only to s.5(1)(h). And it seems clear from the legislative history that Parliament saw s.5(1)(h) as extending, rather than reducing, the available grounds for attack upon a decision. However, a curious position would arise if the effect of the Act was that a decision could be invalidated for lack of evidence under s.5(1)(a) or s.5(1)(f) notwithstanding that the same paucity of evidence did not amount to a lack of evidence under s.5(1)(h). In practical terms para.(h) would be rendered otiose. Applicants would overcome the limitations of s.5(3) by relying upon a different ground.
It seems that this difficulty was not foreseen when the legislation was enacted; probably because it was not envisaged that a case of "no evidence" could be used to make out any other ground. It is interesting to note that, in discussing the other grounds, the explanatory memorandum makes no reference to lack of evidence. All of the examples of denial of natural justice given by the memorandum are procedural defects or aspects of bias. The emphasis of the memorandum in connection with error of law is in removing the requirement for the error to appear on the face of the record.
One possible view is that, whatever be the content of their common law counterparts, Parliament did not intend that grounds (a) and (f) include cases where the alleged error is simply that there was no evidence to support the conclusion reached; so that, in a Mahon situation for example, an applicant would have to rely upon s.5(1)(h) rather than upon s.5(1)(a). I note that in Western Television Limited v. Australian Broadcasting Tribunal (4 November 1986, not reported) Pincus J. at p.30 expressed a view to this effect.
It is not necessary for me to reach any firm conclusion about these matters. The only practical difference which arises between s.5(1)(h) and the other grounds is in a case where there is no evidence to support a finding of fact but the evidence before the Court does not negative the relevant fact. For the reasons I have expressed that is not this case. Not only is the fact of financial capability not negatived; there is material to support the Tribunal's finding of financial capability.
The Application should be dismissed. The applicant must pay the costs of the two respondents. There should be no order in respect of the costs of the Attorney-General of the Northern Territory.

[1986] FCA 620

23 DECEMBER 1986