Yarmirr, D. v Australian Telecommunications Corporation

[1990] FCA 440

Re: DAISY YARMIRR; WARRUWI COMMUNITY INC.; GAPUWIYAK COMMUNITY INC.;
NUMBULWAR NUMBURINDI COUNCIL INC.; BULMAN COMMUNITY COUNCIL INC.; RONNIE
LINDSAY; KALTUKATJARA COMMUNITY COUNCIL INC.; WALUNGURRU COUNCIL INC.;
GRAHAM DEAN HENDERSON; LAJAMANU COMMUNITY GOVERNMENT COUNCIL; SAMMY
JOHNSON: YUELAMU COMMUNITY INC.; TERRY BULLEMER; PAPUNYA COMMUNITY
COUNCIL INC.; URAPUNTJA COUNCIL; ABORIGINAL CORPORATION; CHRISTINE HELEN
FULLER; MOUNT LIEBIG COMMUNITY GOVERNMENT COUNCIL; DAVID BRUCE McKEON
and YUGUL MANGI COMMUNITY GOVERNMENT COUNCIL
And: AUSTRALIAN TELECOMMUNICATIONS CORPORATION and KENNETH ROY COXELL
Nos. DG8 and 17 of 1989 and DG52 of 1990
Administrative Law - Statutory Interpretation - Money Paid under a Mistake of
Fact and Restitution - Trade Practices Act S.52
96 ALR 739
19 IPR 75

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Burchett J.(1)

CATCHWORDS

Administrative Law - whether a private right of action for a remedy in the nature of mandamus lay under s.27 of the Australian Telecommunications Corporation Act 1989 in respect of an alleged failure by Telecom to perform its community service obligations by installing particular services - discussion of the width of Telecom's discretion - discussion of the general and indefinite character of Telecom's duty - relevance of statutory provision for the supervision of the performance of the duty by another statutory body - whether judicial review was available in the circumstances of the case under the Administrative Decisions Judicial Review Act and whether the court should leave the applicants to their statutory remedy by exercising the discretion contained in s.10(2)(b) of the Judicial Review Act

Statutory Interpretation - discussion of construction of section imposing general and indefinite duties and conferring on an administrator discretions of a legislative kind - whether a private right of action was intended to be conferred on persons disappointed by the administrator's choice of priorities in the performance of his obligations under the section.

Money Paid Under a Mistake of Fact and Restitution - whether mistake of fact or law - suggested misapplication of section and mistake as to its true effect - whether money paid could be recovered as paid under unlawful colour of office - whether, without the alleged mistake, the payment would not have been made.

Trade Practices Act S.52 - whether reliance or damages shown in the circumstances.

Administrative Decisions (Judicial Review) Act 1977, s.10

Telecommunications Act 1975 ss.11, 106

Australian Telecommunications Corporation Act 1989, s.27

Telecommunications Act 1989, ss.22, 68

Trade Practices Act 1974, s.52

HEARING

SYDNEY

#DATE 24:8:1990

Counsel for the Applicants: Mr T.F. Bathurst QC

with Mr S. D. Epstein

Solicitors for the Applicants: Solicitor for the Northern Territory

Counsel for the Respondents: Mr G.K. Downes QC with Dr G.A. Flick

Solicitors for the Respondents: Australian Government Solicitor

ORDER

The application be dismissed.

The applicants pay the respondent's costs of and incidental to the application.

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

JUDGE1

Early in 1960, the then Postmaster General announced on behalf of the Government what was called a "Community Telephone Plan for Australia". This plan established objectives and principles for the long term development of a fully automatic national telephone system to provide a service for the whole continent. Over the ensuing 30 years, the plan adopted in 1960 was implemented and developed. Large numbers of exchanges with automatic switching equipment were installed across Australia. One part of the programme was concerned with what have since been called rural and remote areas. In 1978, Telecom approved a programme for the upgrading of all rural services to a standard equal to current urban services by about 1988. In 1979, a study was commissioned to investigate the provision of telephone services to remote areas of the Northern Territory, and in 1979 and 1980 studies were undertaken of a system for the provision of automatic telephone services in remote areas, known as the digital radio concentrator system (or DRCS). Comparisons were made with satellite technology, and ultimately the DRCS technology was adopted for what became the Rural and Remote Areas Programme (or RRAP). By 1984, this was scheduled to be completed in about 1990. It was decided that satellite technology, which was more costly, would be utilized for special purposes, such as the needs of mining and petroleum exploration ventures, and in special situations, such as Lord Howe Island.

1. The present cases, which, by consent, were heard together, have arisen out of the implementation of the RRAP in the Northern Territory. There have been delays, caused by a number of factors, including the special problems encountered by Telecom in its relationships with distant and isolated aboriginal communities. The unpredictability of the wet season in Australia's north and federal government decisions restricting the availability of finance have also hindered the extension of the DRCS network. As a result, the planned completion date has been set back from 1990 to 1992. However, it is ironic that in this year, when a long awaited achievement is well in sight, proceedings have been brought before the court in respect of the perceived inadequacies of some of the services the upgrading of which has not yet been reached in the programme of work. It may well be that one reason for that is the adoption, in commonwealth legislation passed in 1989, of standards reflecting the almost (but not quite) completed achievement of a modern telecommunications network extending to every corner of Australia.

2. The applicants are, or represent, aboriginal communities in remote areas of the Northern Territory which, at the date of institution of the proceedings, had not been reached by the DRCS telephone service. Some have since received it under the RRAP, but others are not due to do so until various dates extending into 1992. I shall not at this stage pause to draw any distinction between these applicants. One applicant in a special situation is the Yugul Mangi Community Government Council, which makes a restitutionary claim, to be considered later in these reasons. Apart from that claim, the applicants seek to establish their entitlement (which they argue the court should enforce by an order in the nature of mandamus) to interim telephone services, pending the final implementation of the RRAP with respect to them. This asserted entitlement is grounded on the propositions that the high frequency radio telephone services presently provided to some of them by the respondent corporation, and similar services provided to others through the Royal Flying Doctor Service, are not standard telephone services; and that the respondent corporation has a statutory duty (ie, to provide standard telephone services) which, in the circumstances, cannot be satisfied by the delayed implementation of the RRAP, but requires the provision of an interim service, alleged to be available through the utilization of a satellite telephone system, known as Iterra. Alternatively, the applicants say that the respondents' decision not to provide interim Iterra systems to them is reviewable under the Administrative Decisions (Judicial Review) Act 1977 (the Judicial Review Act), and they seek relief under s.16 of that Act.

3. The separate claim made by the Yugul Mangi Community Government Council depends on the provisions of the Telecommunications Act 1975, which has, however, now been repealed by s.90 of the Telecommunications and Postal Services (Transitional Provisions and Consequential Amendments) Act 1989. For that reason, and also because it provides a background to later legislation, it is necessary to have regard to the provisions of the Telecommunications Act 1975. Section 4 of that Act established the Australian Telecommunications Commission, with functions which included (see s.5) the maintenance and operation of telecommunications services within Australia. By s.6, it was provided as follows:
   

"6. (1) The Commission shall perform its functions in such a manner as will best meet the social, industrial and commercial needs of the Australian people for telecommunications services and shall, so far as it is, in its opinion, reasonably practicable to do so, make its telecommunications services available throughout Australia for all people who reasonably require those services.

(2) In performing its functions in accordance with sub-section

(1), the Commission -

(a) shall comply with any directions given to it under section 7; and

(b) shall have regard to-

(i) the desirability of improving and extending its telecommunications services in the light of developments in the field of communications;

(ii) the need to operate its services as efficiently and economically as practicable;

(iii) the special needs for telecommunications services of Australian people who reside or carry on business outside the cities. and

(iv) the intention of the Parliament expressed in section 7 of the Satellite Communications Act 1984, namely, the intention that the telecommunications system provided by the Commission and the telecommunications system provided by the company AUSSAT Pty Ltd (being the company described in the definition of "Aussat" in section 3 of that Act) by the use of space satellites within the meaning of that Act will provide the national telecommunications network for Australia.

(3) Nothing in this section shall be taken -

(a) to prevent the Commission from interrupting, suspending or restricting, in the case of emergency, a service provided by it; or

(b) to impose on the Commission a duty that is enforceable by proceedings in a court." . . .

By s.7(1) it was provided:

"7. (1) The Minister may, after consultation with the Commission, give to the Commission, in writing, such directions, with respect to the performance of its functions and the exercise of its powers, as appear to the Minister to be necessary in the public interest."

1. By the Australian Telecommunications Corporation Act 1989, the Australian Telecommunications Corporation was continued in existence (s.12), with the principal function of supplying telecommunications services within Australia (s.14) and "power to do all things necessary or convenient to be done for, or in connection with, the performance of its functions" (s.17(1)). Part 3 of the Act is headed "TELECOM'S OBLIGATIONS" ("Telecom" is defined in s.3 to mean the Australian Telecommunications Corporation). That part reads as follows:
   

"Obligations generally

25. Telecom has the following obligations:

(a) its commercial obligation under section 26;

(b) its community service obligations under section 27;

(c) its general governmental obligations under section 28. Commercial obligation

26. Telecom shall, as far as practicable, perform its functions in a manner consistent with sound commercial practice.

Community service obligations

27. (1) Telecom shall supply a standard telephone service between places within Australia.

(2) The public switched telephone service shall be the standard telephone service.

(3) Telecom shall supply the standard telephone service as efficiently and economically as practicable.

(4) Telecom shall ensure:

(a) that, in view of the social importance of the standard telephone service, the service is reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business; and

(b) that the performance standards for the standard telephone service reasonably meet the social, industrial and commercial needs of the Australian community.

(5) In this section:

`Australia' does not include an external Territory to which this Act extends. General governmental obligations

28. Telecom shall perform its functions in a way consistent with:

(a) any general policies of the Commonwealth Government notified by the Minister under section 44;

(b) any directions given by the Minister under section 45; and

(c) Australia's obligations under any convention."

By s.30 a certain immunity from actions is conferred upon Telecom. (The section provides: "An action or proceeding does not lie against Telecom or any other person in relation to any loss or damage suffered, or that may be suffered, by a person because of any act or omission (whether negligent or otherwise) by or on behalf of Telecom in relation to the supply of a reserved service.") By ss.31 and 32 the board of directors of Telecom is required to prepare corporate plans setting out its policies and objectives and including (s.32(c)) "a statement of the strategies and policies that Telecom is to follow to carry out its community service obligations". By s.33, a corporate plan shall include a financial target. Section 34 then provides as follows:

"34. In preparing or revising a financial target, the Board shall have regard to:

(a) the need to earn a reasonable rate of return on Telecom's assets;

(b) the need to maintain the extent of the Commonwealth's equity in Telecom;

(c) the expectation of the Commonwealth that Telecom will pay a reasonable dividend;

(d) the need to maintain Telecom's financial viability;

(e) the need to maintain a reasonable level of reserves, especially to make provision for:

(i) any estimated future demand for telecommunications services; and

(ii) any need to improve the accessibility of, and the performance standards for, the standard telephone service;

(f) any other commercial matters the Board considers appropriate;

(g) the cost of carrying out Telecom's community service obligations;

(h) the cost of performing Telecom's functions in a manner consistent with the general policies of the Commonwealth Government notified by the Minister under section 44;

(j) the cost of implementing any directions given by the Minister under section 45; and

(k) the cost of any other obligations of Telecom under this or any other Act that require it to act otherwise than in accordance with normal commercial practice."

Section 36 empowers the Minister to direct the board of directors of Telecom to vary its statement of the strategies and policies that it is to follow in order to carry out its community service obligations. Sections 44 and 45 also make it clear that the Minister may direct the policies of Telecom and may, after consultation with the board, give it directions "in relation to the performance of Telecom's functions as appear to the Minister to be necessary in the public interest".

1. Further provisions with respect to telecommunications were made by the Telecommunications Act 1989, assented to on the same day as the Australian Telecommunications Corporation Act 1989. Section 3 of the Telecommunications Act 1989 provides:
   "General objects of Act
   3. The objects of this Act include:
   (a) ensuring that the standard telephone service supplied by
   

Telecom (namely, the public switched telephone service):

(i) is supplied as efficiently and economically as practicable;

(ii) is, in view of the social importance of the service, reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business; and

(iii) is supplied at performance standards that reasonably meet the social, industrial and commercial needs of the Australian community; . . .

(f) promoting the development of other sectors of the

Australian economy through the commercial supply of a full range of modern telecommunications services at the lowest possible prices."

By s.16 the Australian Telecommunications Authority (known as Austel) was established. A number of functions were prescribed for Austel including (s.22) "monitoring, and reporting to the Minister on: ... (d) the appropriateness and adequacy of the strategies and policies that Telecom is following to carry out its community service obligations; and (e) the efficiency with which Telecom is carrying out those obligations." Austel is required to perform its functions consistently with Commonwealth Government policies, and with directions given it by the Minister (see ss.27, 28 and 29). By s.68(1) Austel is empowered, in connection with the performance of its functions under (inter alia) s.22, to "give written directions to a carrier" (an expression defined to include Telecom). Section 68(3) then provides:

"(3) Without limiting subsection (1), where:

(a) Telecom has refused or failed to supply a standard telephone service for a person or a public payphone for a particular place or area; and

(b) AUSTEL is of the opinion that Telecom's refusal or failure is inconsistent with the strategies and policies that Telecom is, under its corporate plan, following to carry out its community service obligations; AUSTEL may, under that subsection, direct Telecom, in writing, to supply the service or payphone within such period as is specified in the direction."

1. Against this statutory background, the applicants' claims fall to be considered. They contend that the obligation stated in s.27 of the Australian Telecommunications Corporation Act 1989 is enforceable in this court under the circumstances in evidence. They accept that the DRCS service, to be provided under the RRAP, will adequately fulfil Telecom's obligations, as each of them receives it. But they claim that, in the meantime, the services provided by radio telephone are not part of "the standard telephone service" within s.27(2), and that the standard telephone service is not reasonably accessible to them on an equitable basis when it is only accessible by Telecom's high frequency radio telephone, or by the similar radio telephone available through the Royal Flying Doctor Service. In support of these contentions, they rely on a number of features of the services presently available to them which they claim to be wholly inadequate. At the same time, they claim that the Iterra system would provide a feasible interim alternative which the requirements of s.27 demand that Telecom provide.

2. The alleged inadequacies of high frequency radio telephone include its failure to guarantee privacy, its susceptibility to interruptions of communication, particularly during the wet season, and its lack of a duplex speech path (ie, only one person can speak at a time, so that the other cannot simply break in on a sentence). I accept that difficulties are encountered during the wet season, and that delays are not uncommon. It is also true that, in certain circumstances, eavesdropping by a third party can occur; however, it should be pointed out that even with the DRCS technology, or with the Iterra satellite technology, it would be possible for someone who went to the trouble of getting the appropriate equipment to listen in to other peoples' conversations.

1. There was a great deal of evidence put before me concerning the cost of an interim provision of Iterra services to those applicants who are still awaiting the provision of DRCS services. For the applicants, it was suggested that the cost, over and above the current cost of the RRAP, would be relatively small. In relative terms, I see no reason to doubt that this contention is correct, although the absolute figures would nevertheless be not inconsiderable. However, the respondent points out that the applicants are not the only persons with unmet claims to receive the benefits of an improved telephone service. The respondents say that Telecom should not be asked to discriminate in favour of the applicants; if an Iterra service were to be provided on an interim basis to any of the applicants, consideration would have to be given to the supply of similar services to other communities and persons. A limit would soon be reached at which the Iterra service would not be available simply because there is no capacity to cope with the demand which would be involved. That would also have the consequence that Telecom's planned use of the Iterra service as a more expensive service for special purposes would be disrupted, with the double consequence that needs which should be met could not be met, and that Telecom would lose the profits it could have obtained from meeting those needs. These problems raise questions, according to Telecom's submissions, which the legislature has left to its determination. The function of determining priorities of this kind is its function.

2. The argument that the relevant priorities have been committed to the decision of Telecom may be illustrated by one aspect of the evidence. In an attempt to answer the proposition that, if Telecom acceded to the applicants' request for interim services, it would have to consider providing similar services to an indefinite number of other persons and communities, the applicants put evidence before the court suggesting there are only a total of 47 communities in Australia which would be comparable with the communities represented in these cases. However, one of the criteria by which the relevant communities were narrowed down to 47 was the number of persons to be treated as constituting a community. That number was taken to be 50. Telecom contends there is error in the assumption that it should accord a community of 50 priority over a community of 40, or, indeed, priority over an individual living or working in an isolated situation. The inextricably intertwined questions of cost and need which would arise in according priority to any particular applicant for the provision of an interim standard telephone service, in a situation where the RRAP is projected to be completed within another two years, must, it was submitted, necessarily be left to Telecom to unravel - or, perhaps more realistically, to cut through.

3. Except in relation to the restitutionary claim made by the Yugul Mangi Community Government Council, the question on which all else hinges is the question of the true construction of s.27 of the Australian Telecommunications Corporation Act 1989. (Cf. Northern Rivers Television Limited v. Minister for Transport and Communications (unreported, Hill J., 30 May 1990) at p 25 of the print.) On any view, the section is concerned with an extremely broad discretion. The concepts evoked by the expressions "efficiently and economically as practicable", "that, in view of the social importance ... , the service is reasonably accessible to all people in Australia on an equitable basis", and "reasonably meet the social, industrial and commercial needs of the Australian community" call, in each case, for an adjustment between ideal goals and what Telecom is able to do. It is Telecom which must make that adjustment, notwithstanding that other sections require it to do so subject to the direction of the Minister. In the making of it, "competing considerations have to be carefully weighed and balanced in the public interest" and "the very nature of the task, with its emphasis on the broader public interest, is one which militates strongly against the imposition of a duty of care being imposed upon such an agency in favour of any particular section of the public", to borrow the words of Lord Goff of Chieveley in Davis v. Radcliffe (1990) 1 WLR 821 at 827, though he was there speaking in the context of a claim that a governmental authority had exercised its functions negligently. Although, when parliament enacted this legislation, the task of upgrading the telephone service throughout Australia was almost completed, it is not likely that the remaining needs of orderly progress to final completion were wholly ignored. Parliament could hardly have intended to interrupt the programme as it reached success. Finance, manpower and the availability of equipment being all subject to limitations, it could only have been disruptive to have conferred a right such as that which the applicants claim - a right enforceable in the courts, and not restricted by the wide discretion which the nature of the problems suggests.

4. If parliament thought that high frequency telephone services were inadequate - and there is nothing in the Act to suggest that this was the case - it could not have supposed that Telecom could replace them all overnight. (Cf. the remarks of Lord Denning M.R. in Haydon v. Kent County Council (1978) 1 QB 343 at 358-360.) If it intended, by s.27, to provide that Telecom "shall ensure" that there is accessible to all people in Australia a better service than that, it must have intended that Telecom do so within a reasonable time, not all at once. And if a reasonable time was intended, the factors which make one time reasonable rather than another are so complex and so bound up with the needs to be served, the resources available, and the relative priorities of each, that the intrusion of other than the most limited private rights could only obstruct the goals of efficiency, economy and practicability which are expressly stated in the section. Only the conferral of a power to choose the appropriate means to the statutory end could provide any satisfactory solution. To adapt, for the purposes of this case, the remarks of Kitto J. in The Queen v. The Trade Practices Tribunal; Ex parte Tasmanian Breweries Proprietary Limited (1970) 123 CLR 361 at 377, it would obviously be impracticable for the Parliament to apply its own ideas as to the social requirements referred to in the section, either by passing a special Act for every individual case or by laying down a definition which in every case would be sure to produce a result satisfactory to it. There is probably no practicable alternative to setting up an authority which with some but incomplete guidance from the legislature will apply its own notions concerning these matters.

5. The fundamental difficulty of subjecting a discretion, the content of which is as wide as the content of s.27, to examination by a court was illuminated by Barwick C.J. in Giris Pty Limited v. The Commissioner of Taxation of the Commonwealth of Australia (1969) 119 CLR 365 at 372, when he referred to the discretion there in question as "a legislative discretion". He added:
   

"I have been unable to find any content for the word `unreasonable' in the context ... except considerations of a kind upon which a legislature acts in deciding whether an enactment or its particular terms are or are not unreasonable having regard to the interests of the public generally, of the citizen to be affected, of the revenue and of the requirements of those policies, political, economic and fiscal which the Parliament is prepared to sanction."

Similar considerations are plainly inherent in any application to an individual case of s.27. It is thus an examination of the nature of the functions performed by Telecom in discharging its obligations under s.27 which reveals the difficulties in the applicants' case. Telecom is in a position like that of the Commissioner in Regina v. Commissioner of the Police of the Metropolis, Ex parte Blackburn (1968) 2 QB 118, of whom Lord Denning M.R. (at 136) said:

"Although the chief officers of police are answerable to the law, there are many fields in which they have a discretion with which the law will not interfere. For instance, it is for the Commissioner of Police of the Metropolis, or the chief constable, as the case may be, to decide in any particular case whether enquiries should be pursued, or whether an arrest should be made, or a prosecution brought. It must be for him to decide on the disposition of his force and the concentration of his resources on any particular crime or area. No court can or should give him direction on such a matter."

1. When parliament imposes on a functionary a broad duty involving the development and application of policy, to be performed nationally, the fulfilment of which must be subject to many constraints and may be achieved in many different ways, according to the measure allowed to those constraints, but cannot be achieved absolutely, if only because it involves an ideal, detailed supervision by the courts of the manner of performance of the duty is not likely to have been intended. In Wade on Administrative Law 6th ed. (1988) at 614 it is stated:
   

"A power enables an authority to do what would otherwise be illegal or ineffective. It is always subject to legal limits, and it is safe to assume that Parliament did not intend it to be exercised beyond those limits. A duty, on the other hand, may or may not be legally enforceable. Parliament has recently become fond of imposing duties of a kind which, since they are of a general and indefinite character, are perhaps to be considered as political duties rather than as legal duties which a court could enforce. Many such duties may be found in statutes concerned with social services and nationalisation. Thus the opening words of the National Health Service Act 1977 are

It is the Secretary of State's duty to continue the promotion in England and Wales of a comprehensive health service ... ."

Wade goes on to refer to the statutory duty of the Coal Board of "making supplies of coal available". This is remarkably similar to the language of s.27, with its obligation laid upon Telecom to "ensure ... the service is reasonably accessible". Wade gives other examples, and at 615 comments:

"Only in the unlikely event of its making total default would any of the above-mentioned authorities be at risk of legal compulsion in respect of its general duties."

The words of Brennan J. in Re Limbo (1989) 64 ALJR 241 at 242, though written in a different context, are apposite:

"But when one comes to a court of law it is necessary always to ensure that lofty aspirations are not mistaken for the rules of law which courts are capable and fitted to enforce. It is essential that there be no mistake between the functions that are performed by the respective branches of government. It is essential to understand that courts perform one function and the political branches of government perform another. One can readily understand that there may be disappointment in the performance by one branch or another of government of the functions which are allocated to it under our division of powers. But it would be a mistake for one branch of government to assume the functions of another in the hope that thereby what is perceived to be an injustice can be corrected."

1. In the case of s.27, there is a particular statutory context which throws light on the question whether the section was intended to confer a right of action upon a person who is disappointed by Telecom's choice of priorities in the performance of its obligations under the section. It will be recalled that, by ss.31, 32, 33 and 34 of the Australian Telecommunications Corporation Act 1989, Telecom is required to prepare corporate plans, including "a statement of the strategies and policies that Telecom is to follow to carry out its community service obligations". If ss.22 and 68 of the Telecommunications Act 1989 are read together, the conclusion plainly follows that power has been conferred upon Austel to direct Telecom to supply a standard telephone service for a person pursuant to its community service obligations. The presence of this provision in the legislative scheme suggests that the remedy devised by Parliament, for a case where Telecom's performance of its broad community service obligations is challenged, is the supervisory role committed to Austel. In that respect, the case may be compared with Southwark London Borough Council v. Williams (1971) Ch 734, where Lord Denning M.R. (with whom Megaw L.J. agreed) said at 743, after referring to a statutory remedy available in the circumstances there in question: "Seeing that is the remedy given by the statute, I do not think there is any other remedy available."

2. I have concluded that the applicants have not made out any case for relief under s.27. Nothing put before me suggests that Telecom has gone outside of the bounds of the very wide discretion conferred upon it. At least unless it does so, s.27 creates no such private right of action as the applicants seek to pursue.

3. For similar reasons, the application under the Judicial Review Act also fails. The nature of the discretion conferred by the section upon Telecom is such that it would be extremely difficult to find, where there has been a bona fide consideration of the priorities, that the limits on the exercise of the administrator's discretion have been passed. See Minister for Aboriginal Affairs v. Peko-Wallsend Limited (1986) 162 CLR 24 at 40-41. It was for the administrator to determine the appropriate weight to be given to the various factors which bore upon the statutory discretion, and I think there is no substance in the suggestion that, in the present case, any relevant matter was omitted, or any irrelevant matter taken into account. Nor could the decision be regarded as unreasonable in the appropriate sense.

4. In any event, I think it is plain that s.68 of the Telecommunications Act 1989 makes adequate provision, entitling the applicants to seek a review by Austel of the impugned decision; and having regard to the nature of the questions with which the decision necessarily had to deal, the expertise of Austel, and the inability of the court to provide a review on the merits, I have no doubt that a proper exercise of discretion would require a refusal of the present application under s.10(2)(b) of the Judicial Review Act. For that reason, it is unnecessary to examine further the applicant's contentions supporting their application for judicial review. In Swan Portland Cement Ltd v. Comptroller-General of Customs (1989) 90 ALR 280 at 286-287, the joint judgment of Morling, Pincus and O'Loughlin JJ. comments, with reference to other legislation specifying a particular method of review, "that in many (perhaps most) circumstances, the court's proper response to an application of this particular sort (ie. under the Judicial Review Act) should not be to embark upon a full hearing, but rather to exercise the discretion under s.10(2)(b)(ii) adversely to the applicant."

5. The claim for restitution made by Yugul Mangi Community Government Council (to which I shall now generally refer as "Yugul Mangi") raises different considerations. In June 1988, when Yugul Mangi (then known as "Ngukurr Township Association Inc.", Ngukurr being the town on which it was centred) had been advised that the DRCS service was not expected to reach Ngukurr until the 1989/1990 financial year, an inquiry was made as to the availability of an interim service utilizing the Aussat satellite. Yugul Mangi acknowledged its understanding "that such a service is expensive". After some negotiations, an Iterra service was installed, and became operational by 22 September 1988. It was continued, with some variations of the agreement for its supply, until 15 February 1990, when it was disconnected following the completion of the DRCS service to Ngukurr.

6. Telecom's response to the initial inquiry made on behalf of Yugul Mangi offered to supply the Iterra equipment upon one of what were described as two "payment options available". The first payment option involved a "capital contribution (upfront payment)" of $88,415, with an ongoing monthly rental of $121 and a monthly maintenance payment of $334. The second payment option simply involved a monthly rental (described as "normal monthly rental") of $2,425 plus the same monthly maintenance payment. In either case, there was an installation cost of approximately $40,000, subject to reduction if the customer carried out some of the works involved in installation. It was the second payment option which Yugul Mangi elected to accept. In referring to this as a "payment option", it seems to me that the parties were not suggesting a difference in the nature of the charge being made, but only a difference in the manner of payment. In other words, the same capital contribution was being required, together with the same ongoing monthly rental, but the capital contribution was being spread over a period and, having regard to the likely life of the arrangement, possibly reduced.

7. A formal agreement was, in due course, drawn up and entered into in respect of the supply of the Iterra service. It described itself as "ITERRA NETWORK EARTH STATION SUPPLY AND MAINTENANCE AGREEMENT". It set out that Telecom "agrees to supply and maintain the equipment ... subject to the following terms and conditions which the Customer agrees to accept". By those terms the agreement was to operate from the date of the installation of the equipment, and it was provided:
   

"2.1 The Customer shall pay the charges specified in the Schedule in the manner and at the times also specified in the Schedule. The charges comprise:-

(a) a monthly rental and/or capital contribution for the equipment;

(b) site visitation fee for the purpose of ongoing Telecom maintenance ... ."

The specification of charges in the schedule was as follows:

"7. Charges Payable by monthly installments (sic) in advance. 7.1 Annual Rental $2994 payable on signing $35,928. of contract with subsequent ($2994 per payments at monthly intervals month) thereafter. (The rent is subject to review at any time after one year from date of installation (sic)) 7.2 Installation

($15,000) Customer to provide assistance as follows: . Excavate installation site and provide concrete pour ... (Other work was also specified) 7.3 Maintenance

($334 per month) $4,000."

1. The point taken on behalf of Yugul Mangi Community Government Council is that s.11 of the Telecommunications Act 1975 provides:
   

"(1) The Commission may, from time to time, make, with the approval of the Minister, determinations fixing or varying -

(a) the rentals payable in respect of standard telephone services provided by the Commission ...

(2) The Commission may, from time to time, make determinations fixing or varying rentals and charges, other than rentals and charges referred to in sub-section

(1), for telecommunications services and other services that the Commission provides under this Act. . . .

(6) The Commission shall cause particulars of rentals and charges determined by it under this section to be published in the Gazette.

(7) In this section, a reference to the rental payable in respect of a standard telephone service provided by the Commission is a reference to the rental payable for the use of the line and other apparatus connecting premises to the telephone system controlled by the Commission."

1. It was accepted that the charges made in accordance with the agreement between Telecom and Yugul Mangi had not been the subject of a determination published in the Gazette. However, s.106(1) of the Telecommunications Act 1975 provided as follows:
   

"Where a person (including Australia, a State and an authority of Australia or a State) applies to the Commission for the provision of a telecommunications service of a special kind or in special circumstances, or for the provision of a special facility, the Commission may enter into an agreement with the person with respect to the provision of the service or facility under which the person agrees -

(a) to make a contribution towards the cost of providing and maintaining the service or facility;

(b) to render other assistance to the Commission for the purpose of facilitating the provision of the service or facility; or

(c) to indemnify the Commission against any loss the Commission may suffer by reason of the provision of the service or facility."

1. Yugul Mangi submits that the Iterra service was a standard telephone service in respect of which Telecom was not entitled to levy charges at any rate except the gazetted rate under s.11. I do not accept this argument, because I do not think the provision of an interim service utilizing satellite technology, pending the projected installation of the DRCS service within one or two years, could be regarded as simply a standard telephone service. It was rather a telecommunications service "of a special kind or in special circumstances, or the provision of a special facility" (to provide an interim service - whether or not the interim service can be described as a standard service - to someone who already has a service, pending the installation of a superior service, is to provide a special facility) within the meaning of s.106. However, Yugul Mangi then contends that, assuming the interim service was not a standard telephone service within s.11(1), there was no gazettal of "rentals and charges" under s.11(2). It was submitted that the charges made under the agreement set out above, if it is accepted that s.106 applied, could not be brought within that section's authorization of an agreement "to make a contribution towards the cost of providing and maintaining the service or facility".

2. It should be noted that the agreement between Telecom and Yugul Mangi includes a clause (clause 9.1) in the following terms:
   

"Provision of the equipment and the Iterra Network Service shall be subject always to the provisions of the Telecommunications Act 1975 and the Telecommunications (General) By-Laws made thereunder. Apart from this legislation, this Agreement is the complete and exclusive statement of the Agreement between the parties and supercedes (sic) all prior oral or written proposals and communications between the parties."

The latter part of this clause is perhaps not particularly significant, since there was no suggestion that the agreement should be construed as involving a different arrangement from that the subject of the negotiations between the parties. The agreement describes the relevant payments as "a monthly rental and/or capital contribution for the equipment". To the extent that a capital contribution is involved, s.106 seems to me to be plainly applicable. To the extent that a rental commonly covers at least some costs, and is not all net profit, again s.106 would seem to be applicable. It is only to the extent of any profit element in any rental involved that Yugul Mangi's argument can withstand the impact of s.106. The evidence does not identify any such amount.

1. But if an element in the charges made pursuant to the agreement falls outside the authorization of s.106, in my opinion the proper conclusion must be that the parties were in error in respect of a question of law. For the drafting of the clause relating to charges, which I have set out earlier in these reasons, seems plainly to have been intended to bring the agreement within s.106. The very word "contribution", contained in s.106(1)(a), is carried over into the clause. A misapplication of the section, in the drafting of the agreement, or an assumption that the section covered a charge of a kind which it did not cover, would constitute an error of law.

2. Neither s.11 nor s.106 in terms provides that an agreement in respect of the delivery of a special service, or in respect of the supply of a special facility, otherwise than pursuant to the provisions of those sections, is illegal or void. At least from 14 December 1988, when amendments to s.10 came into effect, Telecom had, for or in connection with the performance of its functions, a general power to enter into contracts. Assuming that, nevertheless, a contract for the supply of the services in question, not falling within the express provisions of ss.11 and 106, would have been void, and that the subject contract did not fall within those provisions, the ultimate question is whether Yugul Mangi has shown that the payments made by it were, as to any identifiable part of them, paid under a mistake of fact. Yugul Mangi's primary contention is that the payments were so made.

3. Upon these assumptions, the mistake was as to the validity of the obligation imposed by the agreement, which depended upon the existence and true construction of the statutory provisions. There was no evidence of any mistake as to what was provided by the agreement or as to whether there had been a relevant publication in the gazette. In the absence of direct evidence, and having regard to the wording of the agreement, I think any mistake related to the true effect of s.106. In David Securities Pty Ltd v. Commonwealth Bank of Australia (1990) 93 ALR 271 at 301 et seq. the full court considered the effect of s.261 of the Income Tax Assessment Act 1936, by which a covenant imposing on a mortgagor the obligation of paying income tax on the interest to be paid under the mortgage "shall be absolutely void". Moneys having been paid under such a covenant, the question arose whether they had been paid under a mistake of fact. At 303-304, the joint judgment of the court stated:
   

"In the present case, the mistake related to the subsistence of the liability itself, and (was) not made simply because of what was or was not stated in the loan agreement or because of the existence of some related circumstance, such as the date on which a payment fell due. The mistake was as to the existence of s.261 and its operation to render void the purported contractual obligation in sub-cl 8(b). This was a mistake of law for the purposes of this particular field of discourse, or at least a mistake as to law mixed with fact ... ."

In my opinion, this analysis is equally applicable to the circumstances here.

1. On behalf of Yugul Mangi, it was then submitted that, even if the mistake be categorized as one of law, Telecom was a monopolist with a duty, imposed by s.6 of the Telecommunications Act 1975, to supply a service. On that basis, counsel argued that the money paid for the service, over and above lawful charges, could be recovered as money paid under unlawful colour of office. But I do not think there was a duty, in the relevant sense, to supply the particular service requested by Yugul Mangi, that is to say, the Iterra service supplied to it. A service by high frequency radio telephone was available. It was about to be upgraded by the extension to Ngukurr of the DRCS service. I do not think there was a duty to provide an interim Iterra service. It was accepted by counsel that the argument depended upon the existence of such a duty. Counsel relied on the proposition stated in The Law of Restitution by Lord Goff of Chieveley and Gareth Jones, 3rd ed. (1986), at 216:
   

"Where money has been paid to a public officer to obtain performance by him of a duty which he is bound to carry out for nothing or for less than the sum paid, such money or, where some money is due, the excess is recoverable as money had and received. For the duty is a `public duty imposed by law, and for the execution of that he had no right to any payment.'"

(The learned authors were referring to Morgan v. Palmer (1824) 2 B and C 729 at 737.) Nor could it be said Telecom was primarily responsible for the mistake of law in the rather special sense required to attract the principle discussed in David Securities (supra) at 305-306. That principle was not there attracted, though the respondent mortgagee was the author of the void covenant, the full court pointing out that nothing in the nature of bad faith or sharp practice was involved.

1. My conclusion that, assuming the terms of the agreement fell outside the statutory authorization contained in s.106, the moneys paid could nevertheless not be recovered on any of the bases put forward makes it unnecessary to consider other difficulties which the claim to recover these moneys raises. However, I should point out that a claim to recover a sum paid under fundamental mistake of fact is a claim in restitution or unjust enrichment, and there may be circumstances which make restitution itself unjust: Australia and New Zealand Banking Group Limited v. Westpac Banking Corporation (1988) 164 CLR 662. In the present case, Yugul Mangi received the benefits in respect of which it made the payments, and s.106 does contemplate that payments, properly categorized, could have been lawfully required. There was no evidence that the payments in fact required were excessive in relation to the rights which might have been asserted by Telecom under s.106. There is a question whether it can here be said, in the language of the joint judgment in Australia and New Zealand Banking Group Limited v. Westpac Banking Corporation at 672, "that it appears that, without the mistake on the part of the payer, the payment would not have been made". Perhaps the nature of the payment would have been more precisely identified, and it would have been made all the same.

2. Finally, it was submitted, in the alternative, that Yugul Mangi was entitled to recover the money paid by it as damages under s.52 of the Trade Practices Act 1974. This submission was based on an allegation of an implied representation that Telecom had power to charge the fees in fact charged. However, even if such a representation was made, I do not think that Yugul Mangi is shown to have relied upon it or to have suffered any damage as a result. It is not shown that Yugul Mangi could or would have received the Iterra services for payment of any smaller total amount.

3. For these reasons, each of the claims must be dismissed with costs.