Western Television Ltd v Australian Broadcasting Tribunal

Re: WESTERN TELEVISION LIMITED
And: AUSTRALIAN BROADCASTING TRIBUNAL and WEST COAST TELECASTERS LTD.
No. NSW G364 of 1986
Administrative Law - Post and Telegraph - Statutes

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Pincus J.

CATCHWORDS

Administrative Law - commercial television licence for Perth - competing applicants - relevant consideration ignored - point abandoned below - discretion to refuse relief - whether evidence to justify decision - what must be proved to satisfy Judicial Review Act - whether wrong weighting of considerations fatal.

Post and Telegraph - commercial television licence - grant of licence to one of two applicants - which more "suitable" - what constitutes suitability - convictions of associated person for tax offences - relevance to suitability of applicant - control of transactions in shares of licensed companies - whether Tribunal can control same in course of licensing process.

Statutes - Broadcasting Act - construction - use of Second Reading Speech - whether implication should be made - consideration of history of exercise of Tribunal's functions in aid of construction.

Administrative Decisions (Judicial Review) Act 1977 s.5

Broadcasting and Television Act 1942 ss.25(1); 81; 83, 89A, 91(2), 92A, 92B, 92F, 92FAA

HEARING

BRISBANE

#DATE 4:11:1986

ORDER

The application be dismissed.

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

JUDGE1

This is an application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 in respect of a majority decision of the Australian Broadcasting Tribunal. A summary of my reasons appears at the end. The terms of the decision, which was made on 30 July 1986, are as follows:

"The Tribunal will grant a commercial television station licence to West Coast Telecasters Ltd. for a period of five years to serve the Perth Metropolitan Television Area. The licence will be granted on a date to be determined by the Tribunal after the specifications applicable to the licence have been determined by the Minister."

The application in question raises a variety of grounds, some of which were abandoned at the hearing, and it is convenient to deal with them in the order in which they appear in the application. It should be noted that the attack on the decision depends in part upon factual considerations. They might have been thought to be somewhat difficult to deal with, on the face of it, as apart from exhibits the record runs for over 13,000 pages. I have read only parts of it, and have relied upon the assistance of counsel in referring me to them. I do not believe that the course adopted has made it impractical to deal with the actual aspects of the application.
Of the twelve parties who appeared for part or the whole of the time before the Tribunal, only two were contestants in this Court, namely the applicant, Western Television Limited, and the second respondent, West Coast Telecasters Ltd. Both were applicants before the Tribunal for the licence which was determined to be granted to the latter, but in these reasons I give them the designations they properly bear in this Court, with the exception that they are sometimes called "the contenders", referring to their position before the Tribunal as competitors for the one licence.
There are currently four television stations in Perth. The first to commence operation was TVW 7 in 1959, followed by the A.B.C. station ABW 2, which began in 1960; next STW 9, a second commercial station, received a licence in 1965; and lastly, the Special Broadcasting Service began in March 1986.
The genesis of these proceedings was a notice issued by the Minister for Communications in May 1984 inviting applications for, or submissions relating to, the grant of a licence for a commercial television station to serve the Perth Metropolitan Television Area. Four applications were made, but in the end, only two were pursued, being those of the present applicant and second respondent. Apart from the question as to which of the contenders should get the licence, the Tribunal had to consider whether a commercial licence should be granted at all, and if so at what frequency it should transmit. The Tribunal decided, of course, that a licence should be granted and it made no recommendation about the choice of frequency; no issue is raised with respect to either of these matters in the proceedings before me. It produced an elaborate report which sets out in detail, among other things, its reasons for preferring one contender to the other; one member dissented and would have granted the licence to the present applicant.
It is desirable to say something of the factual background against which the issue fell for determination by the Tribunal. In my view, appreciation of that background may assist in evaluating the legal worth of the considerations which the Tribunal applied in determining which of the two contenders should succeed. It may be thought that some of those considerations have little force, but an explanation of their being nevertheless used may be found: there does not seem, in the view of the Tribunal, to have been a great difference between the merits of the two contenders, nor did the Tribunal believe the grant of the new licence would greatly affect viewers' interests.
The Tribunal was of opinion that 70% to 80% of the material transmitted by the existing licensees comes from the three networks (7, 9 and 0) based in Sydney and Melbourne. Such local material as is transmitted apparently consists in large part of production of cheaper kinds - sport, local news, talent quests and the like. The Tribunal seemed not to approve of the absence of local higher quality programs such as drama and documentaries:

"The greatest opportunity for Perth commercial television to build, and make its mark on the national scene, appears to have occurred during the last ten very prosperous years. The absence of a third licence in Perth appears to have given the two incumbents the opportunity to launch a production offensive. Their profits have been high compared to Adelaide and Brisbane, and they have been free of the network domination which they fear. The evidence of the incumbents shows that the networks have not had a positive attitude towards production in Perth, and that a considerable initiative would have been required to establish a solid production base. But whatever the cause for not establishing that base, the fact is that it does not exist now and it would be unlikely to come into existence even if the Tribunal were to refuse grant a licence. Neither incumbent was able to point to ambitious long-term production plans of its own which would be jeopardised by the grant of a third licence."

It is helpful to an understanding of the Tribunal's reasons for selecting the second respondent rather than the applicant to appreciate what it expected of the new licensee.

The answer is, as I read the Report, not a great deal. Although not all which was said by the Tribunal on this subject is easy to reconcile, the predominant theme may be gathered from the following extracts:

"Each of the three stations would be likely to become a member of a network, under arrangements similar to those which now apply in Brisbane and Adelaide. Program schedules would be likely to be more closely aligned with the three networks than they are now, so that the choice offered to viewers would be more similar to that offered in Adelaide, Brisbane, Melbourne and Sydney. Nearly all high-rating or medium-rating programs seen in the Eastern States are already broadcast by the incumbents in Perth, although sometimes later than they are broadcast in the Eastern States. A third licence would not therefore introduce any significant new supply of non-local programs." (Para. 7.6)

"The reactions of most survey respondents to practices like repeats, advertising and parallel programming as general phenomena were negative, but the grant of a third licence may increase the aggregate amounts of those phenomena without increasing the inconvenience to individual viewers in practical reality." (Para. 7.9)

It should be explained that there was evidence before the Tribunal of a number of surveys of public reaction in Perth to the proposal for a new commercial licence, and it is those surveys to which reference is made in the passage quoted above. The surveys were criticised by one member of the Tribunal, Miss Weigall, but treated as of value by the other two members. They disclosed that only a minority of the respondents desired the new station to be a commercial one and that there were complaints of lack of quality programs, excessive violence and sex, too many repeats and the like. It is an interesting feature of the Tribunal's Report that, while it did not suggest that those complaints were unjustified, it made no very sanguine prediction as to the likely effect of the proposed grant. Nor did it see fit to impose any conditions upon the new licensee, of such a kind as to lessen the public dissatisfaction with the commercial programs currently available. The Tribunal was reluctant to go beyond the prediction that a new licence would do no harm:

"So far as programming practices like advertising, repeats and parallel programming are concerned, Perth viewers would incur some minor advantages and disadvantages. The interaction of those practices in a three-station market would produce a situation of program practice probably no worse, and possibly a little better, than in a two-station market." (Para.9.10)

The relevant statute, now called the Broadcasting Act 1942, has frequently been amended, and in particular was amended during the currency of the hearing before the Tribunal, by Act No. 66 of 1985. That made considerable changes to s.83, which gives the power to grant the relevant licence. However, s.98 of Act No. 66 of 1985 makes the "previous Act" continue to apply -

"(b) in relation to the lodging of applications, submissions and replies, the holding of inquiries and the granting of licences, pursuant to notices that were published under sub-section 82(1) of the previous Act before the commencement date".

The expression "previous Act" is defined by s.96(1) to mean "the Principal Act as in force immediately before the commencement date" and that date is defined by the same provision to mean 1 January 1986. Since the relevant notice was published on 7 May 1984, Act No. 66 of 1985 does not apply to the grant of the licence which is here in question. Reference to the relevant provisions will therefore be to the Act before that amendment. The form of s.83 was then, so far as relevant to this case, as it had been amended by Act No. 113 of 1981, referred to further below, which also made a number of other pertinent changes to the legislation.

Section 83(1) requires the Tribunal to hold an enquiry into the grant of a licence of the kind in question. Section 83(6), at the relevant time, read in part as follows:

"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 -

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

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

(c) 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 effectively to operate the relevant broadcasting station or television station, as the case may be; and

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

(ii) . . .

(iii) where, in the opinion of the Tribunal, in the area to be served in pursuance of the licence, satisfactory reception is being obtained of programs from one or more broadcasting or television stations - the need for the commercial viability of that station or those stations;

(d) it appears to the Tribunal that a licence of the kind contemplated by the matters set out in a notice under paragraph 82(1) (a) or 82A (3) (a) or in a statement referred to in sub-section 82A(6) should not be granted;

(e) . . .

(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."

It will be noted that some of these provisions fall into three groups. Paragraph (d), which applies to a licence of the kind here in question, gives the Tribunal an unqualified discretion not to grant a licence at all; that provision requires no further consideration. Then sub-paragraph (c) (i) gives the Tribunal power to refuse to grant a licence on defined "public interest" grounds. The third category, consisting in paragraphs (a), (b) and (f), may be described as conditions against breach, for each relates to the possibility of a breach of a positive requirement of the Act; for the purposes of resolution of the difficulties of the present case, it is not necessary to analyse the nature of those possible breaches. It is important to observe, however, that the scheme of this provision, s. 83(6), is reflected in other relevant provisions of the Act discussed below; i.e., the Tribunal is given certain unqualified discretions, certain power exercisable on defined public interest grounds, and certain power affected by conditions against breach.
The central provision of the Act for present purposes is s.83(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."

The contention of the applicant is that in deciding between the two contenders, the Tribunal made legal errors with respect to that issue - i.e. which was the more suitable applicant. The word "suitable" is undefined.

I now proceed to deal with the grounds raised in the order in which they appear in the application.

Brian Treasure
Grounds 1, 2 and 3 of the application relate to the position of a Mr. Brian Treasure, and they are as follows:

"1. The making of the decision was an improper exercise of the

power conferred by the enactment in pursuance of which it was purported to be made, namely the Broadcasting and Television Act 1942 (Cth) ('the Act').

(a) the Tribunal took irrelevant considerations into account in the exercise of its power, namely,

(i) that Mr. Brian Treasure had retired as the Chairman of the Board of Directors of the Second Respondent;

(ii) that Mr. Brian Treasure had retired as a director of the Second Respondent;

(iii) that Mr. Brian Treasure would not participate in decisions of the Board of Directors of the Second Respondent.

(b) The Tribunal failed to take relevant considerations into account in the exercise of its power, namely,

(i) that Mr. Brian Treasure had been convicted of a serious offence against a taxation law of the Commonwealth;

(ii) that Mr. Brian Treasure had concealed his charge and his impending conviction from the directors of the Second Respondent;

(iii) that Mr. Brian Treasure had remained a principal in the Second Respondent's application before the Tribunal until that application was well developed and nearing its full hearing and later continued as a similarly prominent participant in the Second Respondent's application merely under a different title, namely as a 'consultant' to the Second Respondent;

(iv) that Mr. Brian Treasure would continue as a 'full time consultant' to the Second Respondent and would thus continue as a mainstay or pillar of the Second Respondent and its television operation.

The making of the decision involved an error of law, namely

the Tribunal construed and applied Section 83(6) (c) (i) (A) of the Act in such a manner as to:

(a) render the considerations set forthe in 1(a) above relevant to its decision;

(b) render the considerations set forth in 1(b) above irrelevant to its decision.

In the alternative, in the event that the Tribunal did not

misconstrue and misapply Section 83(6) (c) (i) (A) of the Act in the manner set forth in 2 above, the making of the decision involved an error of law, namely the Tribunal construed and applied Section 83(9) of the Act in such a manner as to:

(a) render the considerations set forth in 1(a) above relevant to its decision;

(b) render the considerations set forth in 1(b) above irrelevant to its decision."

As appears from the Report (para.10.29), the application of the second respondent "was principally prepared and presented by Mr. Treasure, and West Coast placed considerable weight upon his experience and record, especially in the areas of marketing, promotion and programming". However, on 4 December 1985, the second respondent announced that Mr. Treasure, who had been chairman of directors, had resigned from the board of the company following his conviction for breaches of the Income Tax Assessment Act. He was replaced as chairman by Mr. Stokes, but was still to hold a parcel of shares (5%) making him the second-largest shareholder.
Counsel assisting the Tribunal circulated a submission concerning Mr. Treasure's convictions, which recorded that he had pleaded guilty to, and been convicted of, six offences relating to his failure to file income tax returns for the years ended 30 June 1979, 1980, 1982, 1983, 1984 and 1985, and had "reportedly" been fined a total of $11,000. The submission said that the convictions were "prima facie . . . a matter of serious concern" and constituted "a matter which requires enquiry".
No such enquiry took place, and what might be called a symptom of the lack of enquiry was that nowhere in the record are the details of the convictions to be found. No more was known of them, apparently, than disclosed in the submission, which was not tendered as an exhibit before the Tribunal and which, presumably, recorded what was reported in a local newspaper. No reason appears for the lack of enquiry into the matter and the convictions are not even mentioned in that part of the Tribunal's Report which compares the two contenders.

Counsel for the applicant made written and oral submissions to the Tribunal, the former preceding the latter. In the written submissions, as I read them, counsel relied upon Mr. Treasure's convictions as relevant in themselves, but in his oral submissions, he appeared clearly to resile from that and to rely upon them only as a mere part of the history leading up to Mr. Treasure's resignation, which was put forward as the important point.
The relevance of the applicant's attitude with respect to Mr. Treasure's convictions, as evinced before the Tribunal, is discussed further below.
Although, as has been mentioned, the word "suitable" is not defined, what I have described as the defined public interest grounds are plainly relevant to suitability; they are the matters in paras. A, B and C of s. 83(b) (c) (i), quoted above. In particular, it was relevant for the Tribunal to consider which of the contenders, if either, better answered the description of a fit and proper person to hold the licence". Fitness and propriety are concepts which, as applied to people, may have widely varying scope. Here, as financial, technical and management capabilities are separately mentioned, it appears probable that the legislature had in mind, at least principally, qualities of a potential licensee other than those capabilities. That is, a person perfectly capable of providing a proper service may yet not be a fit and proper person to hold a licence for reasons of, for example, public morality; it would be inconsistent with the intention of the statute to grant such a valuable right to a person appearing to the Tribunal to be unfit in a broad sense, however confident the Tribunal might be that the person in question would perform the licensee's statutory obligations properly.
Only a company having a share capital may be granted a licence for a commercial television station (s. 81(3)) and the requirement that the licensee be a fit and proper person must be read in the light of that. The applicants of which s. 83(9) speaks must be companies, so that comparison of their suitability must involve, in large part, comparison of the natural persons associated with them.
As the chairman of directors and the moving spirit of the whole application, Mr. Treasure was a person whose characteristics were relevant to the second respondent's suitability. After his resignation from the board, his position, as a full-time "consultant", remained significant. Mr. Treasure's position on the board was taken by a Mr. A.W. Kiernan, who was asked about the consultancy arrangement with Mr. Treasure and replied:

"The importance is for the board of West Coast Telecasters very clear. The application is very much a creation of Brian's mind. He gave an enormous amount of evidence on behalf of West Coast Telecasters and he is seen as a very important commodity in respect of the application and the practical implementation of the company's philosophies and policies. West Coast does not hide from that at all as a consequence. We see it to be very important to maintain a relationship with Mr. Treasure."

It is, of course, difficult to predict to what extent, if at all, Mr. Treasure's practical influence on the course of events after grant of the licence would be likely to be diminished by the change in his position from that of chairman to that of full-time consultant. The Tribunal said nothing expressly on that subject, nor is it clear what they thought of the evidence of Mr. Kiernan who, after the passage quoted above, appeared to play down Mr. Treasure's role. It is my view that the Tribunal accepted Mr. Treasure's position to be still, in practice, a very important one. The concluding paragraph of its comparison of the "reliability" of each of the contenders makes special reference to the advantage the second respondent gained from Mr. Treasure's involvement:

"The West Coast board has a blend of expertise in relevant disciplines: business, television, entertainment, legal and financial. In addition, it has access to the expertise of Mr. Treasure, who has extensive experience both as an executive and director of media companies, as full-time consultant. The Western board has considerable commercial media experience and a great deal of financial and commercial expertise. Western submitted that a number of consultants will be utilised to contribute appropriate skills in other specialised areas. However, the Tribunal has concluded that the West Coast board is better balanced for the tasks required of a licensee company than that of Western." (Para.10.41)

It should be added that the conclusion just mentioned was a central point, for the dissenting member, Mr. Armstrong, thought that it was the present applicant which offered "a greater depth and breadth of experience and resources, at both board and shareholder level". He, too, regarded Mr. Treasure as an important figure on the second respondent's side.
A submission was made by counsel assisting the Tribunal, after referring to the issues before it, that "the qualities and capacities of a body corporate relevant to the detemination of these issues, are to be assessed by reference to the qualities and capacities of its key executives and controllers". I agree, with the reservation that it may be that in particular cases persons other than "key executives and controllers" need to be considered; however that may be, it seems to me plain enough that on no reasonable view of the Tribunal's responsibilities could the qualities of the person occupying such a central position in the scheme of things as Mr. Treasure be treated as irrelevant.
Of course, if Mr. Treasure himself had been the applicant, the course taken by the Tribunal would have been not only wrong but absurd; a complete disregard, with the apparent exception of the 1981 year, of a basic obligation of Australians over such a long and recent period, must have been highly relevant to suitability to be granted a licence. Senior counsel for the present applicant, Mr. Shand Q.C., argued that, comparing the Tribunal's mode of reasoning with that which a differently constituted Tribunal has adopted on other occasions, one might safely infer that the Tribunal's error was that it did not regard fitness and propriety as relevant under s.83(9). While I agree that the inference is open, it is not compelling and I decline to draw it. It is puzzling that the Report does not deal expressly with fitness and propriety when comparing the contenders, but the Tribunal may have thought there was nothing between them in that respect.
Senior counsel for the second respondent, Mr. Williams Q.C., argued that it did not appear that the Tribunal failed to take into account Mr. Treasure's convictions. He pointed out that it would be fanciful to suppose that they forgot about such an important fact, or overlooked the reason for the resignation. It was contended, in effect, that the Tribunal had taken the course of setting out only the principal reasons for regarding the second respondent as the more suitable contender, and that there was no rational foundation for an assumption that they had left entirely out of account such an obvious factor.
It is my view that the convictions were not mentioned, in weighing the relevant merits of the two contenders, because no member of the Tribunal regarded them as of any significance for that purpose. That seems to me clear enough from the fact that the Tribunal did not trouble to make any enquiry into the matter to fill out the sketchy account of the convictions which was placed before the Tribunal; further, it relied upon Mr. Treasure's continuing involvement, as I read the reasons, as a weighty matter in favour of the second repondent's application.
It is my opinion that in failing to treat Mr. Treasure's convictions as telling against the suitability of the second respondent, the Tribunal fell into a legal error.
A more difficult question, and one on which my mind has fluctuated, is whether the ultimate abandonment of that point before the Tribunal, by counsel for the second respondent, should induce the Court, as a matter of discretion, to decline to grant relief. It was pointed out that the proceedings must be conducted having regard to the public interest; they are not merely inter partes, and the Tribunal has an inquisitorial function. Section 25(1) of the Act requires the Tribunal to "without regard to legal forms and solemnities, make a thorough investigation into all matters relevant to an inquiry under this division", the inquiry in question being one of that description. The importance of s.25 was emphasised by the High Court in The Queen v. Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13. A question then arose whether there had been breach of provisions of the Act restricting transfer of shares in a company holding a licence. The Court remarked at pp.32 and 33:

"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. It will be noted that a party is given no right to compel the attendance of witnesses. It is for the Tribunal to decide who should be summoned before the Tribunal to give evidence and produce documents

(s.21(2)). The appearance of a party in an inquiry before the Tribunal alleging that there are, or may be, contraventions of the Act cannot qualify or modify the Tribunal's statutory duty to inquire into relevant matters."

In that case, however, the prosecutors, who obtained a writ of mandamus against the Tribunal on the ground of its failure to make proper inquiry, had pressed their point as far as they could before the Tribunal. I do not think the Court's remarks should be read as governing a case such as this, where the point was, in the end, abandoned by counsel for the present applicant. The taking of that course was not a casual act. Counsel for the present applicant first lodged written submissions, in which the convictions were relied on, as mentioned above. In the course of oral argument, however, as I read the rather diffuse discussion, counsel for the present applicant distinctly declined to press the fact of the convictions as being, in itself, a reason, important or unimportant, weighing against the second respondent's case. No doubt counsel's attitude was taken upon instructions which have, it appears, subsequently been reversed. No reason for this sharp change of attitude was given, but perhaps the stance ultimately adopted before the Tribunal was merely tactical: it might have been thought that the Tribunal would not take kindly to the present applicant's seeking to take advantage of Treasure's taxation problems. Whatever the reason, it is undesirable that a party, particularly one legally represented, should be allowed to keep a point like this "in reserve". It would tend to bring the administration of justice, and in particular the functions of the Court under the Judicial Review Act, into merited disrepute if parties were encouraged to take such a course.
It is unnecessary to determine in what respects the Court's discretion under the Judicial Review Act to refuse relief differs from that which is available in proceedings for prerogative remedies, but examples of refusal of certiorari on similar grounds are to be found in R. v. Magistrates' Court at Lilydale; Ex parte Ciccone (1973) VR 122 and The Queen v. Elliott; Ex parte Elliott (1974) 8 SASR 329. In the former case, the magistrate behaved in such a way as to give an appearance of bias, but relief was refused, McInerney J. remarking at p.134:

"Certainly, if a case of 'lying by' is made out, certiorari would be refused. Equally, if a clear case of election is made out, that is, that the applicant knowing the facts and knowing what alternative courses are open to him on the facts, intentionally chooses one rather than the other, he will be held to that choice (or election). In my view, however, an applicant for certiorari may also be refused relief if it is shown that with knowledge of the facts entitling him to object to a continuance of the legal proceeding, he has not objected but has taken an active part in the proceedings right down to judgment."

Elliott's case in the South Australian Full Court considered a mistake on the part of a magistrate in recording six convictions on the one charge. Sangster J. said that there had been an excess of jurisdiction, but remarked, at p.367:

"However, not only did the defendant not complain of these things at the time (nor, indeed in his notice of appeal, which this Court is not currently considering) but the defendant consented to all eight charges (including the six charges in the one complaint) being heard together and participated in the hearing on that basis.

In my opinion, the defendant's conduct should disincline this Court from any exercise, favourable to the defendant, of the Court's discretion to grant or withhold certiorari . . ."

I do not act on the view that every abandonment of a point before an administrative tribunal makes it proper for this Court to decline to grant relief, with respect to that point, under the Judicial Review Act. Here, however, the Tribunal had before it an inquiry of unparalleled length and cost. The potential importance of the convictions of Mr. Treasure must have been evident to the present applicant, as must have been the waste of time and money which could ensue if the Tribunal were led into legal error. The present applicant preferred to take its chance of success before the Tribunal on the basis that Treasure's convictions were not to be used in its favour; having failed before the Tribunal, it should not, I think, be allowed to take advantage of the error for which it was partly responsible.

Shareholding Stability
The grounds to be considered under this heading are as follows:

"4. The procedures that were required by law to be observed

in connection with the making of the decision were not observed, namely the Tribunal was required by Section 25(1) of the Act but failed to make a thorough investigation into a matter relevant to the inquiry, namely the comparative shareholding stabilities of the applicant and the Second Respondent.

The making of the decision involved an error of law,

namely the Tribunal's conclusion that there was greater shareholding stability in the Second Respondent than in the applicant was one not reasonably open to it on the evidence and material before it.

The making of the decision was an improper exercise of

the power conferred by the enactment in pursuance of which it was purported to be made, namely the Tribunal in exercising its power failed to take into account considerations relevant to, and took into account considerations irrelevant to, the comparative sharing stabilities of the applicant and the Second Respondent.

6A. Alternatively to 4, 5 and 6 the Tribunal's decision

involved an error of law in that it regarded comparative stability of shareholding in the applicant companies as a factor upon which the Second Respondent could be found to be a more suitable applicant and thereby failed to give effect to Section 92FAA(2)(b) and (e) of the Broadcasting and Television Act, 1942."

Of these grounds, 4 was not really pressed; indeed, the contrary was put. The last of these paragraphs (6A) was, perhaps, expanded in the course of argument; it was contended that if comparative shareholding stability was a proper factor to be taken into account in deciding the relative suitability of the two contenders, too much weight was given to it.
In Chapter 10 of the Report, headed "Most Suitable Applicant", the Tribunal identified three factors as particularly relevant under s.83(9): stability, reliability and service to be provided. Under the heading "Reliability", the Tribunal came to two conclusions: the first was that "the structure of West Coast is more conducive to effective control by the board over the full range of operations of the station than that of Western", and the second was that set out in para.10.41, quoted in full above when discussing the first batch of grounds. Under "Service to be Provided", the Tribunal concluded that "it appears that West Coast is likely to provide a higher standard of program service than Western". Nothing more need be said about either of those two criteria. Under the first heading, "Stability", the Tribunal put forward reasons which have attracted powerful criticism.
What might be called the principal reasons in that Report have no identified author, but since the chairman, Mr. Archer, gave no separate reasons, they must have his authority. Miss Weigall's separate concurring reasons begin:

"I agree with the decision that a commercial licence should be granted in Perth. I also agree the more suitable applicant is West Coast, and that the licence should be granted to it. There are however various aspects of the reasons for decision with which I do not concur."

Miss Weigall then went on to discuss some aspects of the case. She did not expressly agree with all those parts of the reasons not discussed by her, but it may be a fair inference that she intended to do so. The dissentient, Mr. Armstrong, began by saying:

"I participate in all of the report, including the statement of criteria to be applied in determining the more suitable of the two applicants; but do not concur in the assessment of the two applicants in paragraphs 10.18 to 10.55."

He then explained that he thought the present applicant to be the more suitable on the ground that its board "is considerably stronger and better equipped" and on other grounds which it is not necessary to set out in detail. I do not think Mr. Armstrong should be read as accepting anything in the principal set of reasons about stability, except the view that it is an important matter.

It appears, then, the Court should proceed on the assumption that all members of the Tribunal have held shareholding stability to be an important factor, and that two should be taken to concur in what the principal set of reasons says on the relative stability of the contenders.
That was, to put it simply, as follows: it is important that the successful contender not pass under different control too soon, for those newly in control might not run the station as foreshadowed in the application; of the two contenders, it is the second respondent which is less susceptible to takeover, and so the positions of its directors are fairly secure.
These views were challenged by submissions that susceptibility to takeover was, at least in the present case, a matter of little or no consequence and should not have been treated (as it undoubtedly was) as a primary consideration, and secondly that the conclusion as to relative shareholding stability was not, on the primary facts set out in the Report, reasonably open.
The present applicant proposed that its shares be held by 15 bodies, principally companies, with holdings ranging from 9% to 3%. The remaining 25% was to be offered to the public. There was also evidence of possible changes in that plan which, in the view of the Tribunal, "could significantly affect the opportunity for the general public to subscribe or otherwise affect the final shareholding pattern". However, the Tribunal plainly went on the assumption that the major part of the shares would be held by the 15 bodies mentioned.

On the other side, the second respondent's shares were to be held as to 25% by a Mr. Kerry Stokes, 5% by Mr. Treasure, mentioned above, 10% by "directors, senior executives, consultants and possibly other selected persons" and 60%, in small parcels, by the public.
On the assumption that, on the proper construction of the statute, suitability under s.83(9) includes susceptibility to takeover, it was nevertheless argued that the basis on which the Tribunal reached its view on that issue cannot stand examination. In the course of its discussion of the point, the Tribunal remarked:

"Mr. Stokes said that his personal shareholding of 25%, together with the widespread public holdings, would preserve the structure of West Coast. In his view, 'individuals are far more loyal than institutions' . . ." (Para.10.19)

The Tribunal did not say that it agreed with these opinions, but must have done so. The Tribunal went on to discuss the mode of allocation of the 60% intended for the public, and added:

"Together with the 40% of the shares in the hands of directors and others whose interests would be closely identified with the directors, this would in practice provide stability in the shareholding pattern and make a takeover of the company relatively difficult to achieve."

Presumably that means, difficult to achieve without the co-operation of Mr. Stokes. Given that co-operation, it seems plain enough the second respondent's shareholding structure would make a raider's task perfectly simple, for no doubt a substantial enough number of the small shareholders would follow Mr. Stokes, if he decided to sell his 25%, to pass control. The Tribunal must have gone on the view that Mr. Stokes was unlikely to sell out quickly, although he gave no undertaking not to do so. But it is not the Tribunal's apparent view of Mr. Stokes' intention which is open to attack, but rather the process by which it arrived at an unfavourable conclusion with respect to the present applicant's shareholding stability. As to this aspect (echoing, it appears, some evidence given on behalf of the second respondent) the Tribunal decided the matter on the basis of an assumption as to the inherent characteristics of corporate shareholders, as opposed to personal shareholders, as may be deduced from the references above quoted to that subject and from the following:

"Apart from the outcome of the public issue, 75% of the company will be held by the 15 sponsors. The stability of the shareholding will be affected by the future circumstances of these various commercial organisations, none of which is in a position to exercise control of Western, and most of which are not represented on the board of the company. There was evidence from some of the sponsors of their commitment to Western; but if they were to receive offers for their holdings, each of the individual organisations (especially the public companies), would have to consider carefully the interests of their shareholders or owners. Having regard to all the circumstances, the Tribunal considers that the future stability of the shareholding pattern of Western is less secure than that of West Coast." (Emphasis added.)

The clear implication is that, if an offer were made, the corporate shareholders' attention to the interests of their shareholding would make them more likely to sell than personal shareholders such as Mr. Stokes, Mr. Treasure and the numerous small shareholders of the second respondent.
I was not referred to any schedule which shows precisely which of the 15 sponsors of the applicant are public companies, but clearly most of them are not. For example, two of the three intended largest shareholders are family companies of identified individuals; one of the 5% shareholders, Ravenscar Investments Pty. Ltd. is also described as a family company of one of the directors, and another as "a company of Mr. L.S. Perron". Some others, also, are proprietary companies, not being subsidiaries of listed companies.
A broad objection which might be made to the Tribunal's mode of reasoning is that, since the general subject of takeovers has been so intensively investigated by government bodies and academics, there must be statistics available in the literature which would enable one to assess the accuracy of the Tribunal's conclusion that the company shareholders of the applicant would be more likely to sell out than would individuals. In my view, however, such statistics would not have been of much use. Experience shows that the behaviour of shareholders in the face of a takeover offer depends entirely upon the circumstances. Sometimes, what the Tribunal describes as institutions (a term which could be applied to only two shareholders of the applicant, holding a total of 8%) show surprising loyalty to an incumbent board, even to the extent of attracting public criticism for doing so. Sometimes public companies act in defence of one another in ways which seem remote from the immediate interests of their shareholders. There have, of course, been many examples of raiders establishing a firm base for their assault by acquiring interests of a large number of small shareholders. But whatever generalisations might be made about the relative fidelity of institutions as opposed to individual shareholders, I find it very difficult to accept that a person who controls shares in a company which is the subject of a takeover offer is necessarily more likely to sell if his control is exercised through a company than if he personally owns the shares. For example, it could hardly be thought that Mr. Stokes' attitude towards a takeover offer would vary depending upon whether the 25% Stokes interest were held in a family company or not.
The likely reaction of bodies of shareholders to an actual takeover offer is a matter upon which those professing to be expert in the field will make predictions but tentatively, even when the precise situation of the target company, the full history of the performance of its board, the terms of the offer, and all other relevant factors are fully known. In my respectful opinion, little more than speculation is involved in the Tribunal's attempt to assess in advance of the facts the general susceptibility to takeover of the contenders' proposed structures. One could argue with equal force that a takeover of the applicant would be inherently more difficult, since it would be likely to be necessary to "round up" a number of the larger shareholders, whose independence from one another was apparently thought by the Tribunal to be a disadvantage; acquiring control of the second respondent, on the other hand, would in practice be likely to involve no more than overcoming one man's resistance.
It was argued that the factual conclusion being discussed cannot be attacked under the Judicial Review Act. The contention was that such an attack must be mounted on the ground set out in s.5(1)(h):

"that there was no evidence or other material to justify the making of the decision".

That is subject to s.5(3) which is as follows:

"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."

An argument to the contrary is that under para.(f) of s.5(1), an order of review may be obtained on the ground "that the decision involved an error of law . . .", but counsel said, and I agree, that if the expression "error of law" is taken to include lack of evidence, then s.5(3) has no practical effect. It follows, in my view, that the "no evidence" point being discussed must be made out under para.(h), and it is therefore necessary to show that the Tribunal's decision was one which it "was required by law to reach . . . only if a particular matter was established" or that the decision was based on the "existence" of a fact which did not exist. The operation of these provisions is usefully discussed by Mr. Enright at pp.665 et seq. of his work "Judicial Review of Administrative Action".
In my view, para.(a) of sub-s.5(3) of the Judicial Review Act does not apply because no law requires the Tribunal to reach any conclusion on the question of shareholding stability. It is true that the Tribunal was required to decide about the relative suitability of the two contenders, and that the Tribunal thought that in the particular case that necessitated an examination of relative stability, but the Tribunal's adoption of that view did not create such a requirement as is contemplated by para.(a). In my opinion, what the legislature intends to catch by the language there used is the sort of statute which says, either expressly or by necessary implication, that the making of decision A depends upon the establishment of matter B. The statute here in question does not fulfil that description; it does not require that any conclusion be reached about relative shareholding stability.
As to para. (b) of sub-s. (3), two views are open. One is that if, on application for an order of review, it can be shown that findings of fact on which the decision in question was based were incorrect, then the relevant facts "did not exist". So read, para. (b) would not inhibit the Court's powers, but would tend to expand the accepted notions of judicial review. A narrower reading, which makes more practical sense, is that para. (b) refers only to instances in which express findings made are plainly incorrect.
Neither para. (a) nor para. (b) of s. 5(3) applies here, in my view. I do not find the Tribunal's reasoning on the stability point in the least convincing, and I do not think any Court would have made a finding adverse to the applicant on the basis of such tenuous material as is mentioned in the Report. Further, if a Court had so found, that would perhaps have been reversed on appeal; but this is not an appeal, and therein lies the applicant's difficulty. I do not think the Tribunal's findings on the stability question involved an error of one of the varieties mentioned in s. 5 of the Judicial Review Act.
It should be pointed out that it was not argued, and is not arguable, that the ultimate conclusion as to relative suitability was unreasonable in the Wednesbury sense. That conclusion is adequately enough supported by the view, to which no challenge was made in this Court, that the second respondent would, at least initially, be likely to provide a better service.
That is not the end of the applicant's case as to this aspect. It contended that, reading the control provisions of the Act as a whole, it is clear that restraints on changes in control are comprehensively dealt with by provisions which set out severely to limit the Tribunal's power to prevent changes in control. It was contended that it is inconsistent with the scheme of the Act for the Tribunal to attempt to restrain changes in control by the indirect means of holding applicants which appear likely to suffer a change of control to be unsuitable as licensees, or less suitable than competing applicants.
The initial difficulty which the argument encounters is that s. 83 (9) does not set out expressly any standards by which the suitability of competing applicants is to be judged; the implication is, perhaps, that the Tribunal is intended to be free to select and apply such criteria as it thinks fit in accordance with the exigencies of each case. Putting this more shortly, it may be contended that the question of suitability is one of fact and not law. In Hope v. Bathurst City Council (1980) 144 CLR 1, Mason J., with whose reasons the other members of the Court agreed, discussed the question whether the carrying on of certain activities constituted a "business" within the meaning of a statute was one of law. Without quoting at length from his Honour's remarks, it must be noted that since the word "suitable" appears to be used in its ordinary sense, it may be thought to follow from Hope's case that the Tribunal's view can be upset only if the conclusion to which it came is not a "reasonable possible" one. Here, in my view, the applicant is entitled to have the Court exercise a freer hand than that; it raised a precise legal point as to the interrelation of portions of the statute, which requires an answer.
It is necessary to explain the relevant provisions of the statute, but some preliminary comment may be made. There can be no doubt of the correctness of the basic premise put forward on behalf of the applicant, that the Act contains elaborate specification of the Tribunal's power with respect to dealings in shares of companies holding licences. They are, of course, quite independent of the restrictions on takeovers in the Companies (Acquisition of Shares) Code whose general purpose is the protection of shareholders. Suppose it is correct that an unlikelihood of change of control tends to show the suitability of an applicant for a licence, and that conversely a likelihood of such change tends to show unsuitability. As a practical matter, the judging of applications for licences may then be expected to introduce more severe restraints on sales of interests in companies to which licences have been granted after a contest, such as the one which occurred here, than are contemplated by the statutory provisions dealing specifically with that subject.
As mentioned above, the Tribunal acted on the assumption that Mr. Stokes' 25% shareholding would be unlikely to be sold quickly. If, up to some uncertain limit, the more stable the shareholding, the more suitable the applicant, a formal undertaking not to sell for a specified time a parcel such as that of Mr. Stokes must enhance suitability. I note that Mr. Stokes gave such an undertaking, according to the evidence, when a previous, and successful, application was made for a broadcasting licence, in 1979.
Since the granting of the licence in question is not affected by the amendments made to the control provisions in 1985, those provisions fall to be considered substantially as altered by Act No. 113 of 1981. In my view, there can be little doubt that the purpose and effect of that statute were considerably to weaken the Tribunal's power to inhibit changes of control. If the intention of the statute in that respect is thought to be open to argument, then the remarks made by the relevant Minister in his second reading speech delivered on 3 June 1981 assist towards understanding. The speech included the following:

"Secondly, the amendments are designed to ensure that the ownership or control provisions will remain effective and appropriate to the commercial environment of the 1980's. Restrictions on the free transfer of interests should be no greater than are necessary to achieve a reasonable balance between the desirability of preventing uncontrolled trading and licences and the need for a vigorous share market."

Referring to what became s. 92FAA (2) (b) and (e), the Minister said:

". . . in the case of a purchaser acquiring any interest in the licence, where the licence has been granted within the previous two years, this provision is intended to preserve the integrity of the licence grant process, by preventing an unsuccessful applicant for a licence from taking over the company of the successful applicant."

More generally, the Minister said:

"These streamlined procedures and guidelines will provide adequate controls on the ownership of radio and television. The Tribunal's approval will be necessary for the acquisition or increase of a prescribed interest, and the Tribunal will retain a discretion to consider an acquisition in the context of a public inquiry. At the same time, the share market will be freed from unnecessary restrictions, but adequate checks will remain to discourage trading in licences per se."

It has to be said in favour of the applicant that no trace can be found in the Minister's speech of an intention that the "streamlined procedures and guidelines" are to control the matters referred to only as a supplement to such discouragement of transfers of interests in companies holding licences as may be effected by the licensing process itself.

I turn now to an analysis of the statutory provisions relied on, but only so far as relevant to a licence of the kind in question. They are discussed by the Full Court in Bisley Investment Corporation v. Australian Broadcasting Tribunal (1982) 40 ALR 233. It appears that the Tribunal should have considered the statute having regard to the amendments made to the control provisions by Act No. 163 of 1984; they did not, however, affect the basic shceme of those provisions in any way which bears upon the present case.
Division 3 of Part IV of the Act is headed "Limitation of Ownership or Control of Commercial Television Stations", and for the purposes of that Division, so far as relevant, a person with 15% of the voting power of a company is deemed to be in a position to exercise control of it (s.92B), and to exercise control of the licence itself (s. 92A). The other important threshhold is 5%: under s. 91(2), a person has a "prescribed interest in a licence" if he has shares holding 5% of the voting power in the company that holds the licence - i.e. ordinarily, if he has 5% of the shares. Under s. 92F, if there is a proposed transfer of shares in a company having a licence which will give the transferee a "prescribed interest", i.e. 5% (or, if the transferee already holds 5%, give him more shares) then the purchaser may apply to the Tribunal for approval.
Power to approve is given by s. 92FAA, which may be said to divide applications into two broad classes.
The first class, and the most important one for present purposes, is that defined by s. 92FAA (2) (b): where the transferee would get 5% (or an increase in a previously held 5%) of the shares in the licensee, and "the licence to which the transaction relates was granted (otherwise than by way of renewal) within 2 years before the date on which the notice or application was so given to or lodged with the Tribunal".
It should be interpolated that the Tribunal's view was that its treatment of the question of shareholding stability was consistent with the policy of this two-year provision; the applicant argued, on the other hand, that any attempt by the Tribunal to force a restraint beyond the two years is inconsistent with that provision.
Apart from what might be called for short the two-year transfers, the other class of transfers consists in two sub-classes, those which pass control (i.e. 15%) and the "prescribed interest" transfers which do not. Although there are differences in the treatment of these sub-classes, one by sub-s.2(a) of s.92FAA and one by sub-s.2(c) et seq., for present purposes it may be said that their treatment is broadly similar: if the transfer of shares would pass more than 15% of the shares, then so far as relevant, the Tribunal is to apply to the request for approval the same two sorts of criteria as are discussed above in relation to s. 83(6), defined public interest grounds and conditions against breach, as set out in s.89A; otherwise, similar criteria apply under paras. (c) and (d) of s. 92FAA (2).
The important thing to notice is that in these two sub-classes (i.e. the cases other than two-year transfers), the Tribunal's powers are strictly limited. Apart from conditions against breach, it can only apply the defined public interest grounds which may, with sufficient accuracy for present purposes, be said to be much the same as those grounds set out in s. 83(6). It has a general discretion to refuse approval only in the case of the two-year transfers.

In the case of a simple transfer of the licence itself, the Tribunal is similarly limited; it can apply the defined public interest grounds and the conditions against breach; it has no general discretion to refuse consent (s. 89A).
Beyond the two-year period, those in control of the company have a right to sell out, as far as s. 92FAA and its ancillary provisions are concerned, subject to a strictly limited power in the Tribunal to refuse to allow that to occur; correspondingly, those wishing to buy are free to do so subject to the same restraint.
Is it inconsistent with this legislative scheme to hold that an important criterion, as to suitability in respect of a grantee of a licence, is that the Tribunal is unlikely soon to be called on to exercise its duty to give approval to a transfer of control of the licence? It was argued by counsel for the second respondent that it would be odd if the Tribunal could not take into account, against the applicant, a likelihood of a fairly quick change in that applicant's control, making the elaborate process of examination of the suitability of that applicant rather futile. The argument, which is, presumably, the basis on which the Tribunal acted, is that it is undesirable that an applicant carefully selected as the best grantee available should be quickly changed into an organisation having quite different qualities, and one unexamined by a Tribunal. Putting this more shortly, an aspect of suitability is durability.
All that having been said, it would seem rather irrational on the part of the legislature so closely to confine the Tribunal's power to interfere with the market place, in relation to transactions in the shares of companies having commercial television licences, while leaving it free to take steps to minimise the risk of such transfers in the course of the licensing process. If one were to attempt to devise a consistent legislative scheme, it would hardly include express or implicit power in the licence-granting process to punish applicants thought not to have sufficient "shareholding stability" by holding them less suitable to receive a grant than others - a power co-existing very awkwardly with the strict limits on the Tribunal's power to stop transfers on applications made more than two years from the grant. To put this in concrete terms, it would seem to conform to the Tribunal's view of its powers that if the 15 major would-be shareholders of the present applicant had all promised not to make it necessary for the Tribunal to exercise its powers of transfer approval for, say, four years, that would have destroyed one of the three objections to the grant of the licence to the applicant, and perhaps brought it success; yet the Act is plainly designed to permit rather free transfers after two years. There is much force in the suggestion that the Tribunal must have been unwilling to accept the two-year limit as an adequate restraint and has gone beyond its powers.
In my view, however, it is a little unrealistic to proceed on the assumption that these provisions will necessarily interlock in a way which has practical consistency; it is notorious that they have reached their present form, not in pursuit of any grand plan, but by way of resolution of conflicting pressures on governments. When the 1981 amendments were made, and for many years before, it was known that the Tribunal had, from time to time, considered relative shareholding stability in weighing the merits of competing applications. The practice of doing so is reflected, of course, in the presence of ground 4 of this application, quoted above. It should have been obvious enough that the Tribunal would be likely to continue to treat competing applications in a similar way, unless expressly restrained.
Thus, although the argument that the notion of suitability in s. 83(9) must not be treated in such a way as to provide an additional fetter on changes of control has much strength, I have been unable to conclude that the suggested implication is a necessary one. Here, the Tribunal engaged in a most elaborate examination of the relative merits of two applicants for a licence, as has been done in the past, not only in respect of television, but also radio station licences. If, as the legislation seems to indicate, the licence here in question may be rather freely transferred after two years, it might be suggested that the examination engaged in has not a great deal of practical point; the licence might as well be sold to the higher bidder, particularly since the whole process of selection among a group of suitable applicants may, as the reasoning here demonstrates, be highly speculative and uncertain in any event. But the legislature has deliberately left the Tribunal with a broad power to assess relative suitability, as it and its predecessor have done from time to time for many years. A criticism of the Tribunal's stance, made by Mr. Shand Q.C., was that it, in effect, legislated for additional transfer controls. As against that, if the Court were to make the elaborate implication in s. 83(9) which acceptance of his argument involved, it might itself justly be accused of adopting a legislative role.
To put my conclusion on this aspect more particularly, I decide the case on the view that there is no implication in s. 83(9) that an applicant apprehended to be likely to bring about a request for approval under s. 92FAA of the Act may not be treated as, for that reason, unsuitable as a grantee of a licence.
The third and last point which needs to be dealt with under this heading is the argument that the Tribunal gave excessive weight to its conclusions about relative suitability. That it gave those conclusions considerable weight cannot be doubted.
It was argued by counsel for the applicant that, if the Court were of the view that too much weight had been given to relevant considerations, there would be a legal error capable of correction under the Judicial Review Act, and reference was made to the judgment of Mason J. in Minister for Aboriginal Affairs v. Peko-Wallsend Ltd. (1986) 66 ALR 299 at p. 310. Counsel for the second respondent did not concede that the views there expressed, and set out below, are binding upon me, arguing that questions of the weight of considerations admitted to be relevant are purely for the Tribunal and not for this Court.
To go back a little further than the Peko-Wallsend case, in The Queen v. Industrial Court (1966) Qd. R. 245, the Full Court of the Supreme Court of Queensland had to consider a case in which prerogative writs were sought against the State Industrial Court which had interfered with a decision of an Industrial Commissioner, being entitled to do so only on the grounds of "error of law or excess of jurisdiction". In determining that the Industrial Court had not been shown to have gone beyond its jurisdiction, Mansfield C.J., at pp. 271 and 272, held that "due weight" had not been given to relevant matters, holding, on the analogy of appeals against the exercise of a judicial discretion, that there was an error of law. Wanstall J. appears to have taken the same view at p. 294. As to authority pointing in the opposite direction see, for example, Sean Investments Pty. Ltd. v. MacKellar (1982) 42 ALR 676 at p.684 per Franki J. More eloquent, perhaps, is the mere silence of the older cases: whereas there is no shortage of authority in favour of the view that to ignore relevant considerations may vitiate an administrative decision, none but recent authority has been cited to me in favour of the closely related proposition that wrongly weighting relevant considerations may be unlawful.
In the Peko-Wallsend case, the issue was as to the propriety of exercise of a Ministerial discretion. At p. 309 of the report in 66 ALR, Mason J. referred to the principle that it is "generally for the decision-maker and not the Court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power", but went on:

"I say 'generally' because both principle and authority indicate that in some circumstances a Court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is 'manifestly unreasonable'."

His Honour then referred to a number of authorities, including some on appellate review of judicial discretion, and concluded:

"So too in the context of administrative law, a Court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits."

Gibbs C.J. expressed himself to be in general agreement with the reasons of Mason J., and Dawson J. simply agreed with them.

It was not conceded that the remarks of Mason J., which I have quoted, were an essential part of the reasons for decision in that case. However that may be, there can be little doubt that the view expressed on the point by the majority of the Full Federal Court in Sordini v. Wilcox (1983) 70 F.L.R. 326, to similar effect, was part of the ratio. There, Blackburn J., at p. 331, and Woodward J., at p. 343, relied expressly upon improper weighting of considerations as a ground for holding that an administrative decision should be upset. Kelly J., disagreeing with the view of the majority on that point, dissented. Woodward J., at p. 343, said:

"It is clear that the taking into account by an administrative tribunal of irrelevant factors, or the failure to give any, or any sufficient, weight to significant factors in the exercise of a discretion, will open the door to a judicial review of that discretion."

Although I have doubt whether improper weighting of considerations was ever, in itself, a ground for the issue of a prerogative writ, it seems clear enough that the proper course is to follow the views expressed in these decisions of the High Court and of the Full Court. In doing so, however, I should act on the basis that wrong weighting does not vitiate a decision unless it "really amounts to a failure to exercise the discretion . . ." per Latham C.J. in Lovell v. Lovell (1950) 81 CLR 513 at p. 519; see also per Gibbs C.J. in In the Marriage of Mallett (1984) 52 ALR 193 at p. 200.
I do so because, in my view, the determination of relative suitability is in the nature of a discretionary judgment, although not expressed to be so in the statute. There may be thought to be more than an element of unfairness in the Tribunal's having treated its view of the likely outcome of a postulated future takeover offer as an important factor. Since there was no specific reason to enable a confident conclusion to be drawn either way as to that aspect, it would have been wiser, in my respectful opinion, simply to have concluded that the contenders could not be separated as regards the risk of takeover. After all, there is no necessary damage to the public interest from a takeover; the new controllers might be better than the old. Further, I have been troubled by the Tribunal's apparent attachment of importance to the alleged propensity of corporate shareholders to have regard to the interests of their own shareholders, as opposed to the more altruistic attitude of those who hold their shares in personal names. In the end, however, I have come to the view that the weight given to this matter should not be held to vitiate the Tribunal's decision, not being such an error as to amount to a constructive failure to carry out its legislative duty, nor such as to bring the case into that rare class in which undue weighting of a consideration must be held fatal to validity.
In the result, all the points taken by the applicant under this heading fail.

Mr. Stokes' Holding
The last ground which was pressed is as follows:

"10. The making of the decision was an improper exercise of the

power conferred by the enactment in pursuance of which it was purported to be made, namely the Tribunal failed to take a relevant consideration into account in the exercise of its power, namely the Tribunal failed to take into account that the grant of the licence to the Second Respondent involved placing it in the possession of a company controlled by one man, namely Mr. Kerry Stokes, by virtue of his 25% shareholding, and in light of his unwillingness to undertake that he would not increase his shareholding subsequent to flotation on the Stock Exchange. This was in contrast to the wide spread of shareholding in the Applicant ab initio and, so far as could be foreseen, liable to remain so."

This rather argumentative statement is, in my view, simply answered: not only did the Tribunal contrast Mr. Stokes' large shareholding with the smaller ones spread amongst the present applicant, it used the contrast against the present applicant. The point is explicit in the reasons of Mr. Armstrong, and implicit in the main majority reasons. The former said (p.83):

"The West Coast shareholding has the advantage that there will be one dominant shareholder, Mr. Stokes, that will provide stability to the company."

No similar quotation can be made from the majority reasons without unduly prolonging my own; but it is fairly clear that the Tribunal regarded Mr. Stokes' large holding as an advantage, as against the spread of power in the applicant.

As I read what the Tribunal said, it acted on the principle that if a company has not got one man substantially in control, with the rest of the board dependent upon him, it is less suitable as licensee. At one point the Tribunal, perhaps unwittingly, underlined its point by speaking of another broadcasting company controlled by Mr. Stokes as "his other company".
Whereas rational minds may differ as to the validity of the board's proposition, there can be no doubt that it took into account the matters referred to in this ground. I see nothing legally wrong with the Tribunal's having acted on its view about the merits of one-man control, although no doubt it would have been better if its preference for this sort of applicant had been announced in advance.
In my opinion, then, the application fails. I have given some consideration to the question whether the applicant's success in convincing me, as it has done, that the Tribunal made an error in disregarding Mr. Treasure's convictions should be recognised in the order for costs. It has to be conceded that argument on that point took a considerable time and involved much reference to the transcript. However, I do not think that in all the circumstances the applicant should receive any costs in respect of that issue since the point, in the end, failed. I propose, however, to order, subject to anything the parties may have to say on the point, that the costs of the second respondent of the hearing before me be limited to a four-day hearing. Otherwise, it is proposed to order that the costs of the second respondent of and incidental to the proceedings, including reserved costs, be taxed and paid by the applicant.
The application will be dismissed. I propose to make the order for costs indicated above, unless any party intimates within three days that it desires to make submissions on that subject.

Summary

1. The Tribunal erroneously disregarded Mr. Brian Treasure's tax

convictions, instead of taking them into account against West Coast, as it should have done. However, this point was abandoned by Western at the Tribunal hearing and should not now be given effect to, on its application.

In holding that the shareholding of West Coast would be more

stable than that of Western, the Tribunal made too much of the alleged propensity of corporate shareholders, as opposed to individual shareholders, to sell out in a takeover. But this did not constitute a legal error for which relief is available under the Judicial Review Act.

The Tribunal was entitled, under the Act, to take

shareholding stability into account, in assessing the relative suitability of the two contenders.

Although the Tribunal gave more weight to its view about

shareholding stability than was prudent, in doing so it made no error for which relief is available under the Act.

[1986] FCA 487

04 NOVEMBER 1986