Administrative Decisions (Judicial Review) Act 1977 (Cth) s.5

Akers v. Minister for Immigration, Local Government and Ethnic

Affairs (Unreported 1988, Federal Court per Lee J.)

Chief Constable of North Wales Police v. Evans [1982] UKHL 10; (1982) 1 WLR 1155

Khan and Ors v. Minister for Immigration and Ethnic Affairs (Unreported 1987, Federal Court per Gummow J.)

Minister for Aboriginal Affairs and Anor v. Peko-Wallsend Limited and Ors [1986] HCA 40; (1985) 66 ALR 299

Prasad v. Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155

Puhlhofer v. Hillingdon Borough Council (1986) AC 485

Ruangrong v. Minister for Immigration and Ethnic Affairs (Unreported 1988, Federal Court per Davies J.)

Sean Investments v. MacKellar [1981] FCA 191; (1981) 38 ALR 363

Singh and Anor v. Minister for Immigration and Ethnic Affairs (1987) 15 FCR 4)

Television Capricornia Pty Limited v. Australian Broadcasting Tribunal and Ors (1986) 70 ALR 147

Waterford v. The Commonwealth [1987] HCA 25; (1987) 61 ALJR 350

Western Television Limited v. Australian Broadcasting Tribunal (1986) 12 FCR 414

Counsel for the applicant: Mr J. Spigelman QC with Mr K.V. Taylor

Solicitors for the applicant: Boyd House & Partners

Solicitor for the second Australian Government Solicitor

Solicitors for the second Corrs Pavey Whiting and Byrne respondent:

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

This is an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth)("the ADJR Act") for orders of review with respect to a decision of the Australian Broadcasting Tribunal ("the ABT") issued in June 1988. The ABT had held an inquiry into the grant of a commercial FM radio licence to serve the Shepparton service area. Its decision read, inter alia:-

"Having regard to the commercial viability of

2QN, the Tribunal decides that it is in the

public interest to grant a licence of the kind

contemplated by the Minister. A licence for a

commercial FM radio service in the Shepparton

area in Victoria is to be granted to Goulburn

Valley Broadcasters Pty Ltd from a date to be

determined."

The decision also specified four conditions proposed for the licence.

2. One application for review has been lodged by Independent FM Radio Pty Limited ("IFM") and another by Rich Rivers Radio Pty Limited ("Rich Rivers"). The interests of IFM and Rich Rivers are different. Rich Rivers opposed the grant of any additional licence for the Shepparton service area. IFM was one of the four applicants for the FM radio licence, Goulburn Valley Broadcasters Pty Ltd ("GVB") being the successful applicant. As there was only one report and decision issued by the ABT, and as Rich Rivers' application and IFM's application have elements in common, the applications have been heard together and I shall make one order. However, I express my reasons in each application separately.

3. The inquiry of the ABT was conducted under the Broadcasting Act 1942 (Cth). Section 82(1)(a) of the Broadcasting Act provides:-

"82.(1) Before a licence is granted (otherwise

than by way of renewal) the Minister shall

publish, in the Gazette and in a newspaper or

newspapers, if any, circulating in the area

concerned, a notice -

(a) specifying the category of licence and

setting out an outline of -

(i) the service specifications to which

it is proposed the licence is to be

subject; and

(ii) the technical conditions proposed to

be included in the licence warrant;"

Section 82 also provides that interested persons may lodge with the Tribunal applications for the grant of the licence so advertised. The term "service specification" is defined in s.80(1) and includes a specification of the service area of the licence.

4. On 1 May 1987, the Minister for Communications published a notice under s.82 inviting applications for a licence for a commercial FM radio service for the Shepparton service area. Five applications for that licence were lodged with the ABT including applications from IFM and GVB. One of the five applications was subsequently withdrawn. Rich Rivers did not apply for a licence but submitted to the ABT that its interests as the holder of a radio licence in the Riverina service area would be prejudiced by the grant of the proposed licence.

5. On the lodgment of the applications for the grant of the licence, the ABT was obliged by s.17C to hold an inquiry into the requested exercise of its power. Section 25 of the Broadcasting Act provides:-

"25.(1) The Tribunal shall, without regard to

legal forms and solemnities, make a thorough

investigation into all matters relevant to an

inquiry under this Division, and may give all

such directions and do all such things as the

Tribunal considers are necessary or expedient

for the expeditious and just hearing of the inquiry.

(2) The Tribunal is not bound by legal rules

of evidence and may inform itself on any

matter in such manner as it thinks fit.

(3) Subject to section 19, the Tribunal shall

ensure that every party to proceedings before

the Tribunal at an ordinary inquiry is given a

reasonable opportunity to present his or her

case."

6. The conduct of the inquiry was described by the ABT in its report as follows:-

"1.8 The Tribunal conducted two conferences

during this inquiry. The first was a

procedural conference held in November

1987 dealing with administrative matters

and the inquiry directions.

1.9 The second conference was held in

Shepparton between 19-22 April 1988 after

the documentary phase of the inquiry (see

directions 11-19 in Appendix C) had been

completed. For the first two days of

this conference, the Tribunal heard from

the applicants' directors and chief

executives on the key features of their

applications, as described in the

documentation already submitted. The

Tribunal then put questions to each

applicant on matters arising from all

documentation to date, including:

- the history of the application and

the applicant, including an

explanation of the corporate and

management structure of the

applicant

- the background and areas of

responsibility of directors and

senior executives

- significant features of the

application, including programming

policies and proposals and financial

projections.

1.10 The Tribunal then heard from Rich Rivers

Radio Pty Ltd and put questions to it on

its submission.

1.11 Having heard from each party, the

Tribunal held a brief meeting with the

representatives or agents of each party

to hear whether any of them considered it

necessary or desirable to hold an oral

hearing in accordance with regulation 14.

Two of the parties informed the Tribunal

that it was not desirable or necessary to

have an oral hearing nor to proceed to

cross-examination. The other three

parties agreed that at this stage, it was

not necessary to proceed to an oral

hearing; however, if the Tribunal were to

form a preliminary view, after reviewing

all the evidence, that a licence of this

kind should not be granted, having regard

to 2QN's commercial viability, then the

conference should be reconvened to allow

cross-examination of Rich Rivers. The

Tribunal ruled in accordance with that

submission.

1.12 Final submissions were presented on the

last day of the conference, with the

order of the parties being reversed."

7. In its consideration of the grant of the licence, the ABT was governed by s.83 of the Broadcasting Act which provides, inter alia:-

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

licence to a person unless -

...

(c) in the case of a licence other than a

remote licence - it appears to the

Tribunal, having regard only to the

following matters or circumstances, that

it is advisable in the public interest to

refuse to grant the licence to the

person:

(i) it is not satisfied that the person -

(A) is a fit and proper person to hold

the licence;

(B) has the financial, technical and

management capabilities necessary

to provide an adequate and

comprehensive service pursuant to

the licence or, in the case of a

re-broadcasting licence or a

re-transmission licence, to

provide the service to which the

licence relates; and

(C) is otherwise capable of complying

with the conditions of the licence;

...

(iii) where the service area of the licence

overlaps the service area of another

licence or other licences - the need

for the commercial viability of the

service or services provided pursuant

to the other licence or other licences;

...

(9) Where there are 2 or more applicants for

a licence, each of whom is a person to whom,

but for this sub-section, the Tribunal would

be required to grant the licence, the Tribunal

shall grant the licence to the most suitable applicant."

8. In its report, the ABT found that all four applicants met the statutory criteria and qualified for the grant of a commercial FM radio licence for the Shepparton service area. The ABT then turned its attention to which applicant was the most suitable and said that this question was to be determined by ascertaining "which applicant can best be relied upon to provide a service which most closely accords with the public interest?" The ABT came to the view that, of the four applicants, IFM and GVB were the most suitable.

"8.8 IFM, GVB and SBS all conducted a

considerable amount of research which

identified the same needs of the audience

in the service area, and their

programming proposals are designed to

meet those needs. The primary and

secondary target audiences of these three

applicants are similar, as are the music

proposals and general formats which

include comprehensive news and community

information services. All three

applicants have proposed high levels of

Australian music ranging between 30% and 40%.

...

8.11 IFM's proposals were developed by Mr

Wheatley, Mr Simpson and Ms Hourigan and

show a dependence on the metropolitan FM

model. IFM proposes to employ Ms

Hourigan as its program manager if

granted the licence. She is experienced

in the programming of metropolitan music

stations, and at the conference displayed

a knowledge of the established Australian

music industry. However, the Tribunal

was disappointed by her apparent lack of

knowledge of the independent music

industry, despite IFM's proposals to

incorporate independent labels into its

Sunday night programming. Ms Hourigan

was also not able to articulate what

criteria new talent had to meet to get

airplay and none of the Board had any

detailed knowledge of the music talent in

the area. No concrete proposal was

provided on how new talent could be heard

regularly throughout the daytime

playlist. The Tribunal is concerned that

IFM proposes to relegate new Australian

releases to the 'grave-yard' hours of 9pm

to midnight on a Sunday.

8.11 IFM's proposals were developed by Mr

8.12 GVB's music programming is more

adventurous than either IFM's or SBS's.

The Tribunal was impressed by Mr

Debelle's knowledge of the Australian

music industry, especially of his

understanding of the problems of local

bands, the way the independent recording

industry operates, and his contacts. It

also believes that the 'Give us a Break'

segment identified by Mr Cameron in which

it is proposed that new Australian

releases and independent recordings will

be played 3 to 6 times throughout the day

as part of the normal playlist, provides

more encouragement to Australian creative

resources than only providing a ghetto

for this music and burying it in a Friday

or Sunday evening program. GVB has also

realistically appraised the extent of

local talent, and developed achievable

proposals with regard to the Australian

creative resources side of the

undertaking. Through Bruce Adderley's

studios, GVB will be able to help any

good local bands record their music in a

professional manner. Colin Cameron also

has a track record in encouraging local

talent.

...

8.16 IFM intends to employ one full-time

journalist at the station and three

stringers in other parts of the service

area. It also proposes to have an

arrangement with the local papers to

supply leads. It is not proposed to

provide a local news service at weekends.

8.17 GVB intends to begin broadcasting local

news with the employment of a full-time

journalist at the station and five

stringers throughout the region; a second

full-time journalist will be employed in

year 2. No weekend bulletins are

proposed at this stage.

...

8.19 In selecting the most suitable applicant

to provide a service which most closely

accords with the public interest it is

apparent that GVB's knowledge of, and

commitment to, Australian music and

encouraging Australian creative

resources; its knowledge of the local

talent; and its programming proposals in

this area are superior to the other

applicants. Its commitment to local news

is comparable to IFM and both IFM and GVB

proposed to employ a community service

officer, IFM's would be fulltime whereas

GVB's would be up to 30 hours a week.

The SBS news service is not comparable to

the other two applicants and although the

employment of three journalists and a

weekend news service produced by the

station might indicate the provision of a

better local news service there was no

evidence to show that this would be the case.

8.20 GVB proposes to have automated assisted

programming from 2.00pm to 6am and this

is regarded by some applicants as a

factor which mitigates against an

adequate and comprehensive service.

8.21 The use of an automated assisted service

as described by GVB however provides a

method by which announcers pre-record

their announcements so that they do not

have to spend most of their time

listening to the music as they play it.

There was some opinion expressed about

how acceptable this is to the audience

but no research was provided to show that

this type of programming is not

acceptable.

8.22 The SBS service was judged to be less

suitable than the services proposed by

IFM and GVB. On balance their services

were judged to be equal."

10. I should pause at this stage to say that when two applicants put forward acceptable proposals, the task of the ABT to decide between them may be a difficult one and the decision may turn on a very small point. Nevertheless, it is preferable, if it can be achieved, that the decision turn upon the matters which directly impact on the public, that is to say upon matters of programming and managerial ability and service rather than upon matters which are the concern primarily of the licensee. The ABT said that it judged IFM and GVB equal in their programming and service proposals. Yet there were differences between them and the service which the public would obtain depended upon which of IFM or GVB was chosen.

11. Thus, the management of IFM was closely connected with the Melbourne AM Station 3UZ and with the Melbourne FM Station EON. The proposed Managing Director, Mr C.I. Simpson, had been a foundation director of EON-FM and was currently Managing Director of 3UZ. The proposed Program Manager, Ms Hourigan, was experienced in the programming of metropolitan music stations. Paragraph 8.11 of the report states:-

"8.11 IFM's proposals ... show a dependence on

the metropolitan FM model."

IFM therefore proposed what it considered to be a tried and successful programme format. IFM proposed for the station the ordinary facilities and staffing which a successful FM radio station would require. IFM proposed to raise by way of capital the funds required for the establishment of the station and it had arranged for overdraft and leasing facilities should it require them. IFM made its calculations of advertising revenue on the footing that, within 5 years, its advertising revenue would equal that of the existing Shepparton AM station, 3SR. From this it may be assumed that IFM looked forward to having, within 5 years, an audience equal to that of 3SR. In brief, IFM proposed to establish an FM radio station which would attract as great an audience as that of Shepparton 3SR and it proposed to adopt a programming format based upon the experience of stations such as 3UZ and 3EON.

12. GVB proposed a more adventurous, perhaps even an experimental approach. In addressing the ABT, Mr Andrew Fairley, the Chairman of GVB, said:-

"We steered clear of the common trap of

superimposing a model FM station built on city

guidelines, and then as a consequence having

to go out and justify a revenue package to

justify such a venture.

...

In Shepparton, we have no such capital city

identification, we are a soulless, regional

market with all the characteristics that a

regional market has in terms of revenue

capabilities. In putting our application

together, this company more than any other has

been conscious of the distinction between a

large market with capital city ideas, format

and technology and the needs of a service

covering a large regional city, a large rural

area and a number of smaller population

centres.

I believe that we have addressed the

fundamental issues which are peculiar to

regional markets in our application (and) have

not been seduced to recreate in the country

what others would see as being relevant to the

city. In this sense the decision as to which

applicant the licence will be issued to here

sets the parameters for other regional markets

which are yet to be called in this licence

process that will be an ongoing process in

other markets. The question is whether or not

applications for regional radio services are

to be identified with the high cost, high

spending models which are relevant for capital

cities and which all other applicants in

Shepparton have pursued, or whether the

limitations of revenue in truly regional

markets are taken into account."

13. GVB proposed a music programme that was "more adventurous", to use the Tribunal's words in paragraph 8.12 of the report. It proposed lower initial capital costs and lower capitalisation. It looked forward to having only 44.3% of the advertising revenue within 5 years and it proposed lower running costs by having automated assisted programming.

14. It was clear from the evidence that automation was still in the developmental stage. Mr Colin Cameron gave this evidence, inter alia, for GVB:-

"And with the systemation equipment that we

have proposed in introducing, we are getting

to an innovative stage with radio

broadcasting. We are doing away with paper in

the studio, the announcers log, copy,

etcetera, etcetera. In other words we are

coming into a paperless studio. It is already

in operation in America and virtually at 2BH

at Broken Hill."

"Thank you, Colin. For someone who works in

television as well as doing work in radio it

is interesting that people accept complete

automation in television where everything in

television is automated except the live news

going to air particularly in this area and I

have seen channel 6 start from a fully live

station to go to a fully automated station.

However, I was still dubious about the

automated systems that I had seen operating at

places like 2QN and even what we saw in New

Zealand where they were using the older

American techniques. However, the systemation

system that we saw in Broken Hill as recently

as last Tuesday were absolutely incredible and

it is really given a fascinating new aspect of

radio to the announcers and I spoke to three

announcers at 2BH and they were really

thrilled with the systems and I guess some of

them, for their own personal reasons, because

one fellow had come from another station where

he had worked five nights a week and Saturdays

and Sunday nights and here at 2BH he went in

and did his afternoon shift."

15. In its report the ABT did not discuss these differences between the two applications in depth. When, in paragraph 8.22, the ABT said "their services were judged to be equal", it seems that the ABT concluded that GVB's music programming was preferable - though the ABT did not state that it would be likely to attract a greater audience - but that there was a doubt about the acceptability of the automated assisted programming and that this doubt evened the balance between the two proposals.

16. The ABT found the crucial marginal factor to be in financial considerations. An effect of the ABT's approach was that IFM, which had proposed putting up sufficient capital to provide all the facilities thought to be desirable at the commencement of a successful station and which took a standard approach to broadcasting, found the decision going against it on this ground, which would have seemed to favour its application, whereas GVB's provision of fewer facilities and of full automation, about which the ABT had conceded there were doubts, turned the case in its favour.

17. The establishment costs proposed by each of the applicants were set out in Table 1 in paragraph 6.2 of the report as follows:-

" IFM GVB SBS SFML

Technical

Equipment 353,000 386,000 474,100 519,000

Transmission

Equipment 581,000 424,000 542,000 658,254

Land and

Ancillary 501,000 200,000 248,500 419,000

Other

pre-operational

expenses 1,408,000 1,091,000 1,325,250 1,202,000

(including

establishment fee)

Total 2,843,000 2,101,000 2,589,850 2,798,254"

No detailed criticism was made by the ABT of the establishment costs of IFM or GVB. The Tribunal stated:-

"6.3 Each applicant has budgetted for a

different level of operation as evidenced

by the variation in establishment costs.

IFM have budgetted for Ancillary

Communications equipment, outside

broadcast and automation equipment, the

early employment of staff and have made

provision for satellite receiving

equipment in year 5. GVB have opted for

full automation. SFML have provided for

both automation and satellite receiving

equipment, and for translators and

studios at Echuca and Seymour/Puckapunyul."

18. The capital proposed to be raised by each of the applicants was as follows:-

IFM GVB SBS SFML

Shareholders' funds 2,800,000 1,958,000 2,304,0002,667,000

It will be seen that IFM proposed to raise capital sufficient to provide for all but $43,000 of its establishment costs. In this respect it was the best of all applicants, though GVB's proposed capital would provide for all but a little over $100,000 of its establishment costs. In substance, the establishment costs were to be fully funded or nearly fully funded by the capital raised.

19. Both IFM and GVB expected some losses in early years and both intended to provide some additional equipment in the future. In paragraph 6.3, the ABT referred to IFM's intent to have satellite receiving the equipment in year 5 and in paragraph 5.39 the ABT recorded that GVB intended "to use automation as part of a three-stage plan over 5 years, covering the establishment, the development and consolidation of the station."

20. In Table 2, the ABT set out the following figures which the parties had given with respect to contemplated capitalisation:-

"TABLE 2

PROPOSED CAPITALISATION

$000

IFM GVB SBS SFML

Shareholders' funds 2,800 1,958 2,304 2,667

Bank overdraft 450 100 - 300

Leases 500 400 725 700

Total 3,750 2,458 3,029 3,667

Debt to ordinary

shareholders'

funds (percent) 33.9 25.5 31.5 37.5"

"6.4 The significance of the debt to ordinary

equity ratio is that debt has to be serviced -

that is, interest paid and principal repaid,

at contractually binding times and amounts,

irrespective of the trading circumstances

prevailing at the time. Ordinary equity

offers flexibility in that during poor trading

circumstances directors may decide to omit

dividends to ordinary shares (although

dividends on preference shares may have to be

paid). In line with its low establishment and

operating costs, GVB has the smallest capital

base and the lowest debt to equity ratio."

21. Mr J. Spigelman Q.C., with whom Mr K.V. Taylor of counsel appeared for IFM, challenged this finding and pointed out that the provisions of IFM with respect to bank overdraft and leasing were in the nature of contingencies which would be available if necessary. See p 84 of IFM's licence application and p 29 of the transcript of the inquiry. Mr Spigelman pointed out that IFM proposed to commence operations with a lesser debt than GVB, being almost fully funded by the capital raised, with the best debt to equity ratio and having provided rather more facilities at the time of establishment than GVB intended to provide at that point of time.

22. The ABT then turned to operating costs and set out the following estimates given by the applicants:-

"TABLE 3

OPERATING COSTS

$000

Year 1 Year 2 Year 3 Year 4 Year 5

IFM 1,373 1,415 1,464 1,517 1,519

GVB 960 1,061 1,116 1,176 1,217

SBS 1,329 1,400 1,503 1,603 1,647

SFML 1,430 1,550 1,677 1,786 1,876"

"6.6 The estimated operating expenses of GVB

are significantly lower than the other three

applicants because of projected lower

requirements for both staff and capital costs

(which affects depreciation)."

It will be noted that IFM's estimates of operating costs were in line with those of the applicants other than GVB. GVB's operational costs, no doubt because of its intent to have fully automated programmes between 2 pm and 6 am, were appreciably lower.

23. The ABT then turned to the question of revenue. The Tribunal said:-

"6.8 The four applicants have used fairly

diverse methodologies to estimate revenue

for the Shepparton market as a whole and

for the FM entrant. Three of the

applicants followed a three step

methodology which was used in the

Tribunal's reports on the grant of

supplementary licences in Mildura and

Canberra, and the grant of an independent

FM licence in Newcastle. This method

involved:

a) determining the market growth

b) assessing market stimulus from

the new FM service

c) allocating market share between

the FM/AM service

Because of the different variables

involved, different market and FM service

revenues naturally followed.

6.9 The applicant who diverged from the

methodology was SFML. Instead of

projecting the FM's share of the market,

SFML assumed that from a 45% share in

year 1, its revenue would increase by 25%

in years 2 and by 20% in each of the

subsequent years, yielding a market share

of 85% and increasing in year 5.

6.10 The revenue estimates for 1989/90 in the

first full year of operation and 1993/94

are set out below, in thousands of

1986/87 dollars.

TABLE 4

1989/90

Market FM % Share 3SR

of FM

IFM 2888 1088 37.7 1800

GVB 2660 880 33.1 1780

SBS 2899 870 30.0 2029

SFML 2258 1016 45.0 1242

1993/94

Market FM % Share 3SR

of FM

IFM 3364 1689 50.2 1675

GVB 3070 1360 44.3 1710

SBS 3744 2022 54.0 1722

SFML 2571 2195 85.4 376"

24. I should pause to comment that, as the projection of revenue is a notoriously difficult task, the figures adopted by IFM would not seem to be so much higher than the figures of GVB as to be crucial. They were certainly within the range assessed by the four applicants. Much of the difference between IFM and GVB came from IFM's confidence that, having regard to its examination of the market and to the experience of its management in attracting and keeping an audience and in selling advertising time, it would be able to attract a share of the advertising market of 37.7% in the first year, rising to 50.2% in the fifth year. GVB did not expect to be that successful.

25. IFM's higher estimate of revenue came to be its downfall, for in paragraph 8.31 the ABT held that IFM would have to make substantial reductions in its service if its revenue was lower than projected.

26. Mr Spigelman submitted that the ABT made a number of errors in its approach to the revenue projection. He submitted that the ABT failed to recognise that each of the applicants had followed what the ABT had referred to in paragraph 6.8 as the three step methodology used in Tribunal reports in earlier inquiries.

27. Although the ABT described the methodology as a three step methodology, one further step was involved, that is the adoption of a commencing point, the advertising revenue for the service area for a particular year. In this inquiry, the three step methodology was applied by IFM, GVB and SBS to the advertising revenue for the Shepparton service area for the 1986/87 year. At the time when the applications were lodged with the Tribunal, the actual advertising figures for Shepparton Station 3SR for this period were not known and the three applicants made an estimate. From this estimate, figures for market growth were applied to obtain the expected revenue for the Shepparton service area in subsequent years.

28. Mr Spigelman submitted that IFM had made a sound estimate of 3SR's advertising revenue for the 1986/87 year and, furthermore, took the step of adding to 3SR's advertising revenue for that year a small proportion of the advertising revenue of the other stations whose areas overlapped with the Shepparton service area. Mr Spigelman submitted that, had the revenue projections been important, the ABT had it in its power to check 3SR's advertising revenue for the 86/87 year, for by the time the report issued Station 3SR had lodged its return for that year. Mr Spigelman submitted that the case made by Rich Rivers who opposed the grant of the licence on the ground that its advertising revenue would be severely affected by the new licence showed the importance of taking into account the revenue of overlapping stations.

29. An even more significant ground of criticism made by Mr Spigelman was that the ABT went on to discuss at length, in paragraphs 6.17 to 6.25, what it described as rate card attrition.

30. In paragraphs 6.24 and 6.25, the ABT referred to evidence given by Mr Fairley, Chairman of GVB, in his final submission with respect to what he said had occurred when a new station had entered the Wollongong service area and what had occurred when station EON had commenced in Melbourne. Mr Spigelman submitted that what was then said by Mr Fairley was not evidence for the evidence had closed at an early stage in the inquiry and the ABT was simply hearing final submissions. However, I am satisfied that the experiences of Wollongong and EON were mentioned on several occasions throughout the inquiry.

31. Mr Spigelman submitted further that, in any event, rate card attrition was irrelevant to the estimates of revenue, having regard to the adoption by IFM, GVB and SBS of the methodology, to which I have already referred, set out in para. 6.8 of the report.

32. I note, however, that the levels of the advertising rates proposed to be charged were not themselves irrelevant. Thus, eg, IFM had stated that it had proposed that it would set its rates close to those set by Station 3SR. GVB had proposed that it would set its rates for 1989/90 approximately 55% lower than 3SR's published rates. If the ABT had thought this difference or any other aspect of the rates proposed to be an important factor to take into account, it was entitled to do so.

33. Mr Spigelman pointed out that none of the calculations made using the three step methodology took into account any particular level of rates. It may have been assumed that, if the rate levels went down, the quantity of advertising would increase. The methodology adopted ignored rates, took the estimated advertising revenue for 1986/87 as the starting point and from that starting point adopted a figure for market growth and for market stimulus and then allocated market share. None of those calculations was based upon or otherwise took into account a particular rate structure. See eg. pp 86-8 of IFM's application, p 435 and p 441 of the ABT's transcript, p 75 of GVB's application and pp 1-5 of appendix 45 thereto.

34. Whether or not there would be a rate war, what the extent of rate attrition would be and what effect that would have on overall revenue were not matters upon which the estimates made by IFM, GVB and SBS in accordance with previous decisions of the Tribunal proceeded. Thus, IFM had estimated that it would charge only a little below what was thought to be 3SR's rates and would commence charging at $31 for 30 seconds of advertising. GVB had proposed to commence by charging $16.50 for that time. But these were only anticipated techniques in obtaining advertising. GVB, in its applications, made it clear that its principal aim was to fill 50% of its advertising time slots. It made these comments in its application:-

"The correlation between fill rate and rate

card reflect the business skills of

management. With a high rate card, the fill

rate will diminish and vice versa.

Accordingly, Goulburn Valley Broadcasters

submits that the prudent course for management

to adopt in budget projections is to aim for a

50% fill rate initially, because anything less

than this is not only denying advertisers the

benefit of frequency, but reflects the

inability of management to recognise the need

for rate card and fill rate to interact."

In his evidence, Mr Kilgour of GVB confirmed this. He said:-

"And so we looked at the 3SR situation and we

found, through our experience, that the 3SR

run of station rate was not necessarily the

$33 as has been published but certainly

somewhere round the $20 to $25 mark, and so

accordingly we set our run of station rate at

$16 for a number of reasons. We believed

that, firstly, it was a realistic level in

this market place because we are making a

solus market into a dual market. We believed

that at that rate we could achieve the revenue

that we had projected without any attrition -

rate card attrition - in the market, and we

believed that we could also reach the 51 per

cent fill rate that we had projected in our submission."

35. Yet, the ABT gave considerable weight to the possibility of rate attrition and, in paragraph 8.29, referred again to what it said was the rate card attrition in Wollongong and in Melbourne and concluded that, "The conservative revenue figures of GVB are therefore accepted."

36. Mr Spigelman challenged this finding and submitted that the revenue figures of GVB were not based on any level of rate, that they adopted an inaccurate estimate as their commencing point and that they failed to take into account the revenue of overlapping stations.

"IFM and GVB used quite different methods to

project their revenue. They had different

rate cards, population estimates, annual radio

revenue growth, and one-off growth from the

introduction of a new service. This resulted

in IFM being at the top of the range of

projections of all four applicants and GVB at

the bottom. As a result there was a

difference in revenue projections between IFM

and GVB of $0.2M in the first year and $0.3M

in the fifth year of operation. This

difference is partly explained by the

difference in advertising rates. IFM's rate

card is considerably higher than other applicants."

There are a number of criticisms which can be made of this paragraph. One is that IFM was not at the top of the range of projections. Certainly it was so for the first two years, though in those years the differences were not very great. By the fifth year, IFM's figures were closer to those of GVB than to those of SBS and SFML, which were considerably higher. Secondly, the differences between IFM and GVB were due as much to two factors not mentioned in paragraph 8.24 as to the factors mentioned. Those two factors were the starting figure for the 1986-87 year, in respect of which the ABT had it within its power to ascertain which was correct, and the other being the estimate of the share of the advertising revenue and, on this, the ABT made no comment. Thirdly, the difference between IFM and GVB was not explained by differences in rate cards. The figures set out in Table 4 were not based upon a particular rate of charge.

38. The ABT discussed what would occur if revenue fell below the predicted levels:-

"Reduction in Revenue

6.29 The Tribunal also discussed with each

applicant, what steps they would take if

revenue was lower than that projected.

All applicants indicated that the

situation would have to be analysed

carefully to determine whether the

station itself was performing poorly, if

the local economy was experiencing a

downturn, or indeed if there was a

national problem that was the cause.

6.30 IFM then indicated that it would consider

increasing its sales team. A last resort

would be a cut in staff or an increase in

automation. Mr Cameron for GVB said that

(he had) never been associated with a

station that had experienced a shortfall.

GVB said that as it had the lowest

revenue projection, a reduction in

revenue for them was less likely than for

the other applicants but, if lower

revenue eventuated, then some losses

would be absorbed, and it could be just a

matter of tightening the belt.

6.31 SBS said that it would become more

innovative and aggressive in its sales,

but would not reduce the service or the

staff. SFML said it would step up

efforts to ensure that the quality of the

service was improved. Mr Heading for

SFML suggested that the station should

become more obvious in the community,

introduce novelty items to the

programming and become more aggressive in

the sales area."

The ABT then found, as I have mentioned, that if the revenue was not as high as projected, IFM would have to make substantial reductions in its service and its service would not be comparable to that of GVB.

39. The effect of the Tribunal's reasoning therefore was that the factor which reduced GVB's operating costs - the use of full automation, concerning which the ABT had expressed doubts as to whether it would be acceptable to the public - had come back as a positive virtue, for the station could function at the level proposed with lesser advertising revenue than could other stations.

40. The Tribunal did not elaborate on its conclusion that, if advertising revenue was not up to projection, the service given to the listening audience by IFM would have to be reduced. The Tribunal asked each of the applicants what would occur if advertising revenue was below expectations. The witness for SBS gave this answer at p 199 of the transcript:-

"We would give an undertaking, of course, that

we would not reduce the service of this

station or the staff and if you require, we

will make it a condition of our licence that

we will not reduce the staff numbers that we

have projected."

The witnesses for IFM and GVB handled the question with less precision. In IFM's application, this evidence was given:-

"MR LITTLE: Ms James Bailey, if we hypothesize

on a 5 to 15 per cent loss of revenue, year 1,

that would give a range of revenue loss of

somewhere between 50,000 and 160,000; year 2,

would be 64 to 192,000. It is a great deal of

money within the forecasts that we have

prepared. However, we would believe that such

an occurrence would be temporal in nature

because the board, after having discussions

with management, would formulate a policy to

ensure that we recovered that ground.

Our financial position is such that we could

withstand the loss of revenue, certainly for

year 1, or year 2. But we do not believe it

would go on for that long. It is difficult to

suggest to you today how we would cope with

the problem without knowing what the true

facts are. But one's immediate reaction is to

suggest that if we are losing revenue it is

because we are not covering the area

adequately with a sales force. And it may

well be that we would need to strengthen our

sales force and perhaps put one or maybe two

more salesmen out to be more aggressive in the

area in selling, bearing in mind that sales

costs of two extra sales people for a year

might be $40,000.

So I think that we have sufficient reserve to

withstand, in the shorter term problems, and I

would suggest that in a shorter term, is up to

a year to put our place in order.

MS JAMES BAILEY: May I say, and when you do

compare regional radio stations, one with

another, and look at their market size and

their revenue, the one area that becomes very

apparent in terms of difference, as far as

costs are concerned, is the staffing level.

Now, had you thought about that?

MR RIORDAN: Well, yes, our board has thought

about staffing levels. And our view at the

current time is that those staffing levels are

- that the appropriate staffing levels are to

provide the adequate .... of service. If the

circumstances were such that we could not

approach this problem in any other way, in

other words as our last resort, cut in

service, and that basically a cut in staff in

our view, is very much along the path of cut

in service. We do not see, as for example,

increased automation as being the answer to

the problem except as a last resort. And we

regard that as effectively a cut in service

that the community wants.

So, again it is right down the scale in terms

of our options or our priorities; but in the

last resort the situation is that despite

every other option that may have been looked

at and comes to nothing, and we have to

address finally the question a cut in service,

or a cut in staff, we would then have to

research carefully just what areas the

community were saying to us that they

particularly wanted, what areas we were

perhaps meeting their needs, and make the

judgment on where the cuts would occur on the

basis of that research and the careful

analysis of it.

MS JAMES BAILEY: Because in fact what Mr

Little is explaining is that what you would be

doing initially is the reverse, you would be

increasing your sales staff.

MR LITTLE: We could well do it if it was a

condition that arose as a result of our review

of our operations. It was an illustration

perhaps that revenue loss seems to me to be

dictated by sales force. And if we are not

covering the area adequately to provide the

revenue that we have projected that may be an

option open to us. In other words I suppose

what I really am saying is that we would

necessary as our first option to reduce our

costs."

"MR HANDBURY: What would we do? Sorry, in the

short term - I hope I have put it into two

boxes - in the short term we would absorb it,

if we addressed that it was of a minor nature.

If it was a serious - - -

MS JAMES BAILEY: Could we just get

definitions? Minor nature - what sort of

figure are you talking about?

MR HANDBURY: Well, if we saw that we would

have a shortfall in the order of 100,000 per

annum. If it was to be more than that, as

with any business, you then have to look at

the operation of that business - I am not sure

of the degree of severity you are suggesting,

but you have said up to 15 per cent, well 15

per cent, if that is the top end, then the

managing director would be responding to the

board on the reasons for it and we would be

making executive decisions collectively.

Perhaps - I am not sure of an instance that

would generate a shortfall precisely of 5, 10

and 15 per cent, but - - -

MS JAMES BAILEY: Well, perhaps I could ask Mr

Cameron.

MR HANDBURY: Yes.

MR CAMERON: Well, I have never been

associated with a station that has had a

shortfall. The shortfall has always been

prior to me acquiring the stations.

MS JAMES BAILEY: So you have no experience in

this area, Mr Cameron.

MR CAMERON: I have been very fortunate in

that.

MS JAMES BAILEY: However, let us hypothesise:

for the first time in your life.

MR CAMERON: Well, when the going gets tough

the tough get going, and it is a matter of

tightening the belt a bit, really looking at

what the major problems are, whether it is

confined locally to the Goulburn Valley region

or whether it is Australia-wide. I cannot

really see us having that shortfall of a

magnitude of 15 per cent. We certainly will

not be putting on additional staff to try and

correct the system and I believe it is in all

confidence that what funds we do have in

reserve would cover that situation.

MS JAMES BAILEY: Well, Mr Handbury has

indicated it is 100,000 you have got - not in

reserve actually, but if it is greater than

that, I mean, the chairman of the board is

asking for your advice in terms of what are

you going to do.

MR CAMERON: Well, we certainly would be out

there trying to correct the situation. It is

just a matter of like when the station would

be starting up, commencing. You are out there

to get off the ground, but I just

unfortunately - or whatever, fortunate - have

never been in that situation and I cannot

really see it. We have had downturns but

certainly have bounced back.

MS JAMES BAILEY: All right. Mr Fairley.

MR FAIRLEY: We certainly have the capacity to

go back to the shareholders, Ms James Bailey,

if it was just really critical, if it was an

Australia-wide thing that we just were not

able to deal with in terms of the staffing

that we had and cranking the sales, cranking

more revenue out of the market; and certainly

that is an option. But I mean, in terms of

our projections, they are really very

responsible in terms of where we see this

market."

There seems no great difference in these answers. Both IFM and GVB had made projections and thought that the projections would be met. If they were not, management would have to deal with the problem.

41. In the above discussion, I have dealt at length with the ABT's report and with the course of reasoning which appears therein. I have done this, not with a view to criticising the ABT, but with a view to exposing as best I can the questions of law which arise for consideration in the present case. There is, in this case, a very real question as to what is the function of the Court in these judicial review proceedings.

42. It was not put by Mr Spigelman, and could not have been put, that the decision of the Tribunal was unreasonable. Plainly GVB had put forward an interesting, even attractive proposal, and it was open to the ABT to conclude that GVB was the most suitable of the applicants.

43. Nor was there any challenge to the overall structure of the ABT's reasons. I have made some remarks above with respect to them but solely with a view to making plain what was the reasoning process and what effect the matters therein that are challenged had in the ultimate decision. As Deane J. said in Sean Investments Pty Ltd v. MacKellar [1981] FCA 191; (1981) 38 ALR 363 at p 375:-

"In a case such as the present, where relevant

considerations are not specified, it is

largely for the decision-maker, in the light

of matters placed before him by the parties,

to determine which matters he regards as

relevant and the comparative importance to be

accorded to matters which he so regards."

See also the remarks of Mason J. in Minister for Aboriginal Affairs and Anor v. Peko-Wallsend Limited and Ors [1986] HCA 40; (1985) 66 ALR 299 at pp 308-310. At pp 309-10, his Honour said:-

"It follows that, in the absence of any

statutory indication of the weight to be given

to various considerations, it is generally for

the decision-maker and not the court to

determine the appropriate weight to be given

to the matters which are required to be taken

into account in exercising the statutory power

(Sean Investments Pty Ltd v MacKellar at p

375; R v Anderson; Ex parte Ipec-Air Pty Ltd

[1965] HCA 27; (1965) 113 CLR 177 at 205; Elliott v Southwark

London Borough Council (1976) 1 WLR 499 at

507; (1976) 2 All ER 781 at 788; Pickwell v

Camden London Borough Council (1983) QB 962 at

990)."

44. Nor do I think that there was any breach of the principles of natural justice. I have specifically discussed the issue raised by Mr Spigelman as to the submissions made in Mr Fairley's closing address with respect to rate attrition after the commencement of the new station at Wollongong and station EON in Melbourne. I am satisfied that matters of rate cards and rate attrition were raised in the written submissions, in the oral evidence and in the concluding submissions and that there was no breach of the rules of natural justice in this respect. Representatives of IFM thought the question of the rates and of rate attrition to be largely irrelevant, for the fixing of rates was a matter for management having regard to the circumstances of the time. Therefore, IFM was surprised at the attention given to the issue in the Tribunal's reasons. But that is not a natural justice point.

45. Mr Spigelman submitted under the heading of natural justice that the ABT did not accord procedural fairness to IFM for it found against IFM's revenue projections and in favour of GVB's revenue projections when there was available in the files of the ABT, though not in the inquiry papers, a means of checking that IFM's commencing point was correct and that GVB's was not. Mr Spigelman submitted that procedural fairness demanded that a finding not be made against IFM on mere speculation when the ABT had the means of checking that IFM's projections were soundly based. I need not discuss this matter further. I would not make an order on this ground whether or not it be correct. The ABT did not discuss in detail the projections made. It dealt with future revenue principally by reference to rate card attrition. Therefore, the commencing point of the revenue projections played little or no part in the ABT's decision.

46. That brings me to the substance of the matter. Mr Spigelman submitted that the Tribunal took into account irrelevant matters, namely, the Tribunal's incorrect findings of fact, and failed to take into account relevant matters, namely the correct facts.

47. Forster J. pointed out in Singh and Another v. Minister for Immigration and Ethnic Affairs (1987) 15 FCR 4 at p 13 that:-

"... correct or incorrect facts are not to be

equated with relevant/irrelevant facts."

It is a ground of review provided by s.5(1)(e) of the ADJR Act that the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made. Section 5(2) of the ADJR Act extends this provision to encompass the taking into account of an irrelevant consideration or the failing to take into account of a relevant consideration. Section 5(3) of the ADJR Act deals specifically with the situation where "(b) the person who made the decision based the decision upon the existence of a particular fact, and that fact did not exist." But, that ground is an elaboration of ground 5(1)(h), namely, "that there was no evidence or other material to justify the making of the decision" and refers to the situation where the fact found was not open on the evidence or other material that was or ought to have been before the decision-maker when the decision was made.

48. Similarly, I said in Ruangrong v. Minister for Immigration and Ethnic Affairs, No. G478 of 1987, delivered 29 March 1988:-

"It is not the function of a court in judicial

review proceedings to reconsider the material

which was before the decision-maker and to

come to its own view of the facts as disclosed

by that material. As Diplock L.J. said in R.

v. Deputy Industrial Injuries Commissioner; ex

parte Moore (1965) 1 QB 456 at p 488:-

'If it (the evidence) is capable of having

any probative value, the weight to be

attached to it is a matter for the person

to whom Parliament has entrusted the

responsibility of deciding the issue.

The supervisory jurisdiction of the High

Court does not entitle it to usurp this

responsibility and to substitute its own

view for his.'

See also Chief Constable of the North Wales

Police v. Evans, [1982] UKHL 10; (1982) 1 WLR 1155, in which

Lord Brightman said, at p 1173:-

'Judicial review is concerned, not with

the decision, but with the

decision-making process. Unless that

restriction on the power of the court is

observed, the court will in my view,

under the guise of preventing the abuse

of power, be itself guilty of usurping

power.'"

Likewise, in Waterford v. The Commonwealth [1987] HCA 25; (1987) 61 ALJR 350 at p 359, Brennan J. said:-

"There is no error of law simply in making a

wrong finding of fact."

The same point was pungently stated by Lord Brightman, with whom the other members of the House agreed, in Puhlhofer and Anor v. Hillingdon London Borough Council (1986) AC 485 where his Lordship said at p 518:-

"Where the existence or non-existence of a fact

is left to the judgment and discretion of a

public body and that fact involves a broad

spectrum ranging from the obvious to the

debatable to the just conceivable, it is the

duty of the Court to leave the decision of

that fact to the public body to whom

Parliament has entrusted the decision-making

power save in a case where it is obvious that

the public body, consciously or unconsciously,

are acting perversely."

49. Nevertheless, recent federal legislation has emphasised the need for reasoned decision-making. See the Freedom of Information Act 1982 (Cth), s.13 of the ADJR Act, ss. 28(1) and 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) and s.25B of the Broadcasting Act. Thus instances may be found in the cases where decisions have been set aside because, being insufficiently supported by reason, they appear to be an improper exercise of the power conferred or arbitrary or there was no evidence or other material sufficient to justify the making of the decision or the decision was so unreasonable that no reasonable person could have so exercised the power. The cases have developed, I believe, to the extent that the making or failure to make a particular finding of fact in the course of the reasoning process may be attacked on such grounds and that the taking into account of a fact found unreasonably or the failure to take into account a fact that a reasonable decision-maker must have found and taken into account provides a ground of review under ss.5(1)(e) and 5(2)(a) and (b) of the ADJR Act.

50. The point has been put in many different ways. Thus, in Singh and Another v. Minister for Immigration and Ethnic Affairs, cited above, Forster J. said at p 10:-

"If assertions of important facts were

disbelieved without reason then I should

suppose that the decision-maker would be

guilty of 'failing to take a relevant

consideration into account'".

In Television Capricornia Pty Limited v. Australian Broadcasting Tribunal and Ors (1986) 70 ALR 147, Wilcox J. said at p 150-151:-

"There are also cases in which 'no evidence'

has been treated as an aspect of some other

ground. A finding made without appropriate

evidence will generally be erroneous in point

of law: see Smith v. General Motor Cab Co

Limited (1911) AC 188 at 190. And the

necessity for adequate evidence has been said

to be a component of natural justice: see

Minister for Immigration and Ethnic Affairs v

Pochi [1980] FCA 85; (1980) 31 ALR 666; 44 FLR 41 in which

Deane J (ALR at p 689; FLR at pp 63-8) adopted

the statement of Diplock LJ in R v Deputy

Industrial Injuries Commissioner; Ex parte

Moore (1965) 1 QB 56 at 488 that natural

justice requires that a decision must be based

on evidence, in the sense that 'it must be

based upon material which tends logically to

show the existence or non-existence of facts

relevant to the issue to be determined, or to

show the likelihood or unlikelihood of the

occurrence of some future event the occurrence

of which would be relevant'. This test was

restated in slightly different words by Lord

Diplock, as he had then become, in the

judgment of the Judicial Committee of the

Privy Council prepared by him in Mahon v Air

New Zealand [1983] UKPC 29; (1984) AC 808 at 821: 'The

technical rules of evidence applicable to

civil or criminal litigation form no part of

the rules of natural justice. What is

required by the first rule is that the

decision to make the finding must be based

upon some material that tends logically to

show the evidence of facts consistent with the

finding and that the reasoning supportive of

the finding, if it be disclosed, is not

logically self-contradictory.'"

In Prasad v. Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155 at p 169, Wilcox J. said:-

"Under s.5(1)(e) and 5(2)(g) the Court is

concerned with the manner of exercise of the

power. The power is exercised in an improper

manner if, upon the material before the

decision-maker, it is a decision to which no

reasonable person could come. Equally, it is

exercised in an improper manner if the

decision-maker makes his decision - which

perhaps in itself, reasonably reflects the

material before him - in a manner so devoid of

any plausible justification that no reasonable

person could have taken this course, for

example by unreasonably failing to ascertain

relevant facts which he knew to be readily

available to him."

In Western Television Limited v. Australian Broadcasting Tribunal and Anor (1986) 12 FCR 414 at p 429, Pincus J. said, with respect to s.5(3)(b) of the ADJR Act:-

"A narrower reading, which makes more practical

sense, is that par (b) refers only to

instances in which express findings made are

plainly incorrect."

In Akers v. Minister for Immigration, Local Government and Ethnic Affairs (WAG 147 of 1988, delivered 22 December 1988) Lee J. said:-

"In proceding upon an erroneous premise on a

fundamental matter, the authorized officer

took into account an irrelevant consideration

in that it was information other than the

information the American Consulate had

endeavoured to convey. To proceed to a

decision upon the misapprehension of matters

material to the decision, may be described as

an improper exercise of power (see Minister

for Immigration and Ethnic Affairs v.

Haj-Ismail [1982] FCA 51; (1982) 40 ALR 341 at pp 348 and

365 and Sezdirmezoglu v. Acting Minister for

Immigration and Ethnic Affairs (1983) 51

ALR 561 at pp 572-573).

Such a situation may be contrasted with an

opinion genuinely formed upon conflicting

materials placed before the decision-maker,

which opinion is sought to be called into

question by reference to further evidence or

material (see Akpan v. Minister for

Immigration and Ethnic Affairs (1982) 58

FLR 47). Such a circumstance provides no

ground for review."

In Khan and Ors v. Minister for Immigration and Ethnic Affairs (G159 of 1987, delivered 11 December 1987) Gummow J. said:-

"It is not for the Court to study

administrative decisions too finely or

precisely; they are to be regarded carefully

but sensibly, and not zealously in the pursuit

of error. (Smith v. MIEA (1984) 53 ALR 511

at 544 per Lockhart J.). Nevertheless, in my

opinion, on the whole of the evidence the

applications in question were not each given

proper, genuine and realistic consideration

upon the merits."

51. In the United Kingdom, similar principles are emerging. See Wade's Administrative Law, 6th Ed., pp 329-30.

52. I agree with Mr Spigelman that the Tribunal made some errors of fact and that its decision was to that extent made on wrong facts and to that extent was unfair to IFM.

53. The ABT was wrong in its conclusion as to debt to equity ratio, and in the use which the Tribunal made of IFM's proposal to have available adequate overdraft and leasing facilities in case of need.

54. There were unsatisfactory aspects of the finding that GVB's estimates of revenue were accepted in preference to those of IFM. The ABT did not examine the calculations and point to any error in IFM's calculations. It did not make a finding that its starting point was incorrect or that the figures which it adopted for market growth and market stimulus were incorrect or that its estimates of market share were unrealistic or above those that the ABT had in mind for the new FM station. The ABT made no finding that in any of these respects the GVB estimates were to be preferred.

55. The ABT said that IFM's revenue projections were at the top of the range. But this was not a fair descripion of them. The ABT said that the introduction of the new station would cause 3SR to lower its rate card and "IFM would therefore be forced to lower its proposed rates too. This would have a serious effect on its revenue predictions." But the ABT did not explain why this effect would occur. After all, GVB intended to start with a low rate card. If IFM were to reduce its rates to those proposed by GVB, what would it matter? In fact, neither IFM nor GVB had made projections on the basis of selling particular numbers of time-slots at particular rates.

56. Nor did the ABT give adequate support for its finding that, if there were rate attrition, "It is likely ... that the strategy of cutting staff and automation might both have to be used." For example, the ABT referred to rate attrition after the introduction of the new station in Wollongong and station EON in Melbourne. But it did not say whether the response to rate attrition which then occurred was a reduction in the service to the public or the contrary, that is an improvement in service stimulated by rate competition.

57. Indeed, although the ABT appears to have considered that the Shepparton service area might be unable to support a station which used the standard broadcasting techniques proposed by IFM and that the proposal by GVB to rely heavily on automated assisted programming was, therefore, a good thing, which was indeed the case which GVB put in the inquiry, the actual finding by the ABT was not expressed positively in this way but negatively, namely, that "IFM would have to make substantial reductions in its service if its revenue was lower than projected and that reduced service would not be comparable to the service that GVB proposes."

58. So I come to the point that the ABT made some findings of fact that, in my view, were wrong, on the material before the ABT, and to that extent took into account facts that were wrong and failed to take into account facts that ought to have been found on the material before the decision-maker. But to say that is not sufficient to found a conclusion that irrelevant considerations were taken into account or that relevant considerations were ignored. It is necessary to find that the errors were of such a nature that no reasonable decision-maker could have made them or that there was no evidence before the ABT to justify the findings or that the findings were in some like vein an improper exercise of the decision-making power.

59. On the whole, I find myself in the same position as was Pincus J. in Western Television Limited v. Australian Broadcasting Tribunal, cited above, where his Honour at p 429 expressed the view that a finding was not "in the least convincing" and that "I do not think any court would have made a finding adverse to the applicant on the basis of such tenuous material as is mentioned in the report" but that the Tribunal's finding nevertheless did not involve an error of one of the varieties mentioned in s.5 of the ADJR Act.

60. It is difficult to elaborate further on this point for, in the end it amounts to a judgment as to whether the approach taken by the ABT with respect to the several matters I have discussed in these reasons was an approach that no reasonable decision-maker would have taken. I have examined the particular matters complained of in the light of the whole of the ABT's reasoning process. It does not seem to me that I should hold that no reasonable decision-maker could have approached the matter in this way or that there were significant findings of fact made which no reasonable decision-maker would have made. The ABT delivered a lengthy and reasoned report. There is nothing in the report which, on the face of it, stands out as arbitrary or unreasonable. Certainly, the ABT reached some important conclusions by an indirect route and, on examination, some findings of fact were unsatisfactory and some of the reasoning is unconvincing. But that is not enough to justify judicial intervention. I am not satisfied that relevant factors were ignored or irrelevant factors taken into account, that the decision was otherwise an improper exercise of power, that procedural fairness was not provided or that the decision should be struck down as being in whole or part unreasonable.

61. In my opinion, this is a case where the facts were for the ABT, the ABT has given considered reasons for its conclusions, its ultimate decision is not an unreasonable one and any matters in the reasoning process that may be errors were not reviewable errors.

62. There are three further matters of a discrete nature that I should mention. Mr Spigelman submitted that the ABT was incorrect when it said in paragraph 8.33:-

"GVB is also the only company which has no

major shareholders with existing media

interests."

I need not discuss this point further. The point was stated by the Tribunal but I think played no effective part in the ultimate decision which was made on other grounds.

63. Mr Spigelman also submitted that, when formulating its decision, the ABT failed to take into account the interests of overlapping stations and that the ABT ought to have considered whether conditions should have been imposed upon GVB which protected the advertising and interests of other stations. However, the ABT mentioned the overlapping stations and gave particular attention to the position of 2QN Deniliquin, the Rich Rivers station. I am satisfied that all relevant matters of this nature were taken into account.

64. Mr Spigelman also submitted that the ABT purported to grant to GVB the FM licence for the Shepparton service area whereas its only power was to give notice to GVB under s.82(1)(a) that the licence was available to it. However, I read the decision of the ABT as conforming with the structure of decision-making set out in the Broadcasting Act. It follows that no licence has yet been granted and the ABT did not purport to exceed its power. Its report and decision appear to me to satisfy the requirements of s.25B of the Broadcasting Act.

65. In the circumstances, the application will be dismissed with costs.