Re Tvw Enterprises Limited v Australian Broadcasting Tribunal and Kenneth Archer; Swan Television and Radio Broadcasters Limited; Western Television Limited West Coast Telecasters Limited; Public Television Western Australia (Inc) [1986] FCA 20 (7 February 1986)

FEDERAL COURT OF AUSTRALIA

Re: TVW ENTERPRISES LIMITED
And: AUSTRALIAN BROADCASTING TRIBUNAL AND KENNETH ARCHER; SWAN TELEVISION AND
RADIO BROADCASTERS LIMITED; WESTERN TELEVISION LIMITED WEST COAST TELECASTERS
LIMITED; PUBLIC TELEVISION WESTERN AUSTRALIA (INC.)
No. WA G5 of 1986
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Muirhead J.

CATCHWORDS

Administrative Law - Judicial Review - Australian Broadcasting Tribunal - inquiry under s.83 - grant of licence for commercial television station - refusal to admit substantial body of evidence on an alternative television proposal - observations on duties of thoroughness, expedition and justice - balance required - tribunal to determine relevance - policy reasons to limit scope of inquiry.

Administrative Decisions (Judicial Review) Act 1977

Broadcasting and Television Act 1942 s.25 (1), s.83 (6) (d)

HEARING

PERTH
7:2:1986

ORDER

1. The application is dismissed.

2. The respondents be at liberty to apply for costs.

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

DECISION

This is an application for an order of review in respect of a decision of the Australian Broadcasting Tribunal (the Tribunal). The decision, in fact an interlocutory ruling, was prounounced on 22 January last. The application is brought pursuant to the Administrative Decisions (Judicial Review) Act 1977.

2. A brief summary of the background will suffice. By notice dated 7th May 1984 and gazetted shortly thereafter the Minister of State for Communications invited applications for written submissions relating to the "grant of a licence for a commercial television station" subject to certain specifications which included the provision of a television service by means of a commercial television station to service an area within the Perth metropolitan television area in the State of Western Australia. The notice was published pursuant to Section 82 of the Broadcasting and Television Act (the Act). At all relevant times the Applicant TVW Enterprises Limited (TVW) and the Second Respondent Swan Television and Radio Broadcasters Limited (Swan) were operating commercial television stations broadcasting in the area. The Third Respondents, West Coast Telecasters Ltd (West, and Western Television Ltd (Western) lodged applications with the Tribunal pursuant to Section 82, and on 12 December 1984 the Tribunal commenced the hearing of an inquiry as contemplated by Section 83 of the Act. For present purposes it suffices to say that TVW and Swan as current incumbents (i.e. licence holders) oppose the grant of a commercial television licence. The Fourth respondent was not represented upon the application before the Court, being content to abide the outcome. The inquiry has continued with stops and starts since the 12th December 1984 and at the present date the inquiry has occupied about 100 sitting days. It is clear that the path has not been an easy one. Previous applications under the Administrative Decisions (Judicial Review) Act 1977 have been before the Court. See, for example, TVW Enterprises Ltd v. Australian Broadcasting Tribunal and others (1985) 61 ALR 79, decisions of Forster J. upon which TVW now places some reliance in the present application.

3. I turn to events more closely preceding the lodging of the present application for review on 23rd January last. Most of the background material is contained in the exhibits to the affidavit of Anthony Carrivick, TVW's corporate solicitor, sworn on 24 January last. These include:

(A) A summary of the evidence which TVW intended and sought to

adduce at the Inquiry including its proposals for an
"alternative television service" not being a commercial
television service. This was placed before the Tribunal in
late 1985. It is a comprehensive document which proposes the
establishment in Perth of a "localised non-profit community
television station owned through a government commission or
statutory body and drawing upon members of the community to
direct and establish operating policy". (Ex A) This is
hereafter referred to as the "alternative television
proposal."

(B) (i) TVW's submission to the Tribunal in reply to its request
for submissions relating to the alternative television
proposal.

(ii) West and Western's submission to Tribunal opposing
further inquiry into the alternative television proposal
(Ex B).

(C) Transcript of certain evidence taken in December 1985
including argument as to whether there should be further
inquiry concerning the alternative television proposal. (Ex
C).

(D) Tribunal Ruling on proposed evidence concerning alternative
television. These constitute the 'decision' in respect of
which review is sought (Ex. D). It is a comprehensive
and considered document and I attach it as a schedule to
these reasons.

(E) (i) TVW's initial written submissions to the Tribunal dated
October 1984. This contained ten primary headings
including the submission that "If another TV service is
required at this time, then a non-commercial
alternative is appropriate"

(ii) Original submissions of Public Television (W.A.) Inc.
to Tribunal.

(iii) Original submissions of Swan and an associated company
Radio Broadcasters Ltd.
(Ex. E).

(F) Research Report of Elliott and Shanahan Research prepared for
TVW dated December 1985, entitled "Community Beliefs and
Preferences for next TV Licence for Perth". The surveys upon
which the report is based appear far reaching and deal with
not only a third commercial channel but a second ABC channel
and a public channel.
(Ex.F)

4. In its opposition to the grant of a third commercial licence TVW's case has included the submission that the public interest in this area will be best served, not by the granting of an additional commercial licence, which TVW predictably enough opposes in its own interests, but by the granting of a licence to set up an alternative television station, unique in Australia, funded from various sources and managed by a structure which to say the least is novel. The submission envisages that, existing commercial licencees, government and sponsorship arrangements would combine to finance the alternative station. The material before the Tribunal includes offers by the existing incumbents (or, in the case of Swan, an associated company) to assist in the establishment which, in essence, it is claimed will more truly serve the needs or interests of the public than the granting of a third commercial licence. And so it is that TVW in its submission to the Tribunal contended, by what it termed its positive submission that it should be permitted at this stage of the inquiry to introduce a substantial body of evidence as to matters relevant to this proposal, its feasibility and viability in various 'areas' set out in its written submissions of 15th January 1986 (part of Exhibit B) as follows:

"(1) The demand for alternative television.

(2) Programme philosophy.

(3) Programme format.

(4) Structure, ownership and control.

(5) Funding overview.

(6) Establishment costs.

(7) Operating revenue.

(8) Operating costs.

5. TVW's Summary of Evidence (Ex. "A") indicates the wide scope embraced by these matters, should the Tribunal embark upon it at this stage of the inquiry, which it has declined to do. Should it be required to do so the costs and time already expended upon this marathon inquiry will be increased, matters clearly and quite properly of considerable concern to the Tribunal in the exercise of its statutory function. The question nevertheless remains whether upon established principles of review this Court is required to direct that the Tribunal proceed as submitted by TVW despite these very real considerations.

6. The specific "decisions" of the Tribunal at which review is sought as set out in the Application for review are its rulings that :-

"(a) the Tribunal would not investigate a
specific proposal by the Applicant for an
alternative television service for the
Perth metropolitan area ("the Alternative
Television Proposal");

(b) that the Applicant would not be permitted
to adduce evidence as to its Alternative
Television Proposal;

(c) the decision of the Tribunal as to
whether or not to investigate the
Applicant's Alternative Television
Proposal was relative to an assessment of
justice and expedition;

(d) that the likelihood of feasibility would
not in itself be a reason for refusing to
grant a further commercial television
licence;

(e) that the Tribunal is not required by
Section 83 (6) (d) to be persuaded that as
new commercial television licence is
required in preference to all other forms
of television service but rather that the
grant of such licence would not be in the
public interest."

7. I have heard no argument as to whether the Tribunal's rulings in fact constitute a decision or decisions to which the Administrative Decision (Judicial Review) Act 1977 applies. The Tribunal filed a Notice of Objection to competency on the ground that its 'ruling' did not constitute a decision within the meaning of Section 6 of that Act. That objection was not pursued in argument and there appears to be an assumption that the rulings in question are reviewable on the principles enumerated by the Full Court in Lamb v. Moss (1983) 49, ALR 533. I have thus proceeded, with the consent of all parties on the basis that I have jurisdiction to review and I now say no more about that aspect.

8. The functions, power and responsibilities of the Tribunal are governed by the Act, comprehensive legislation which by definition distinguishes, inter alia, commercial, national and public television stations. Clearly the alternative proposal mooted by TVW comtemplates the need for and establishment of a station other than a commercial station, namely a public television station. By the Act (Sect. 16) the Tribunal is empowered to grant licences and a scheme is provided by the Act, to enable the Tribunal to hold inquiries "before taking action" under the Act (Sec. 18 (1)), or as directed by the Minister, into any matter relating to the operation of the Act (Sec. 18 (2) (a). This would include, I assume, an inquiry at the direction of the Minister as to public need for a licence in an area and as to the type of licence. The Tribunal may take evidence on oath or affirmation. Section 25 (1) requires the Tribunal to make a "thorough investigation into all matters relevant to an inquiry" and enpowers rather than directs that it 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". Section 25 (2) frees the Tribunal from compliance with legal rules of evidence and enables it to inform itself on any matter, in such manner as it sees fit. By reason of Section 25 (3) the Tribunal is required to give persons interested reasonable opportunities to present their cases, to inspect documents and the like.

9. Section 80A further requires the Tribunal in the exercise of its function under Part IIIB (pursuant to which licences may be granted) to act "fairly and impartially" and to "observe the rules of natural justice". These statutory exhortations may be summed up as requiring thoroughness, fairness and expedition but the key and common feature must be relevance to the task in hand. Such legislative directions are no doubt intended to protect the interests of those involved but of course it is inevitable that such interests will be diverse, and at times in conflict, especially when the issues are of tremendous importance, not only to commercial interests but to the public at large. It is inevitable, if the investigation is to be, for example, thorough, and the hearing expeditous that the Tribunal in the exercise of its discretion will be required to make considered but hard headed choices between the submissions of one party and the contrary submissions of another. And when the Tribunal is urged, as it was here, when considering the grant of a commercial licence to further its inquiry into the establishment and feasibility of a television station of a completely different nature it is perhaps understandable that it should examine the proposition with care. It is trite to say that such an examination has or may have relevance and thus thoroughness dictates it shall be pursued. But the interests of the public, the function of the Tribunal and the very administration of the Act may be jeopardised if every issue or submission raised must as a matter of law be pursued to the end merely because it may, in the view of the party, raising it have relevance or importance. The primary task of the Tribunal in such a case must be to give fair consideration to submissions and counter submissions, weigh them, and decide.

10. Contemporary legislation relating to review of such decisions was designed to ensure as far as practicable that fairness predominates. Upon review, and particularly in my view when interlocutory decisions are challenged, a Court should not lightly interfere. 'Decisions' made in the course of an inquiry of this nature will only be reviewed when an error of law is demonstrated, it is not for this Court to substitute its own views and judgment. (Bastiani v. Repatriation Commission 60 ALR 557 at 561). Indeed, the court in attempting to do so, especially where relevance is an important issue, is likely to be at a disadvantage to a Tribunal nearing (as I am told was hoped to be) the end of a lengthy inquiry. When the error alleged arises out of the exercise of a discretion necessarily vested by the Act in the Tribunal as master of its own proceedings, particular caution is required.

11. The words of Deane J. in Sean Investments and Mackellar (1981) 38 ALR 363 at p. 375 are often cited.

"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. The ground of
failure to take into account a relevant
consideration will only be made good if it is
shown that the decision-maker has failed to
take into account a consideration which he was,
in the circumstances, bound to take into
account for there to be a valid exercise of the
power to decide."

See also the observations of Lockhart J. in Hamblin v. Duffy (1981) 34 ALR 333 at 335 and Fox J. in Borkovic v. Minister for Immigration and Ethnic Affairs (1981) 39 ALR 186 at 188.

12. These observations are not at dds with the reasoning of the Full Court in Lamb v. Moss (1983) 49 ALR 533 at 557. In that case the Court referred to the words of Bowen C.J. and Lockhart J. in Australian National University v. Burns (1982) 43 ALR 25 at 30:

"Commonwealth legislation in the field of
administrative law is intended to seek a
balance between justice to the individual and
efficiency of administration, between private
rights and public advantage. The
administrative process must be efficient in
the sense that government policy must be
implemented effectively. Nevertheless the
achievement of that objective must be
consistent with fair play to the individual.
The community must be satisfied that the
administrative process is conducted with due
regard to maintaining a balance between the
public interest which it advances and the
private interest which it disturbs."

13. It seems to me that the Tribunal is required in the course of conducting this inquiry to seek to maintain the same type of balance consistent with the performance of its statutory function. Unless it is demonstrated that it has failed to do so, the Application cannot succeed.

14. This is not to ignore the words of Aickin J. in Barrier Reef Broadcasting Ltd v. Minister for Post and Telecommunications and Another (1978) 19 ALR 425 at 445 cited by Forster J. in TVW Enterprises (Supra) at 96: "No doubt the requirements of thoroughness, expedition and justice do not always proceed in unison, but the section does not warrant the sacrifice of justice to expedition". The issue there related to limits placed upon cross-examination and Forster J. in referring to that passage was considering the right of the incumbents in this inquiry to "attack and attempt to demolish the individual cases of the applicants as well as to deal with the matters of general public interest" (page 97). He went on to refer to the Tribunal's undoubted right to exercise restrictions "by the ordinary rules as to relevance and prolixity". He concluded that passage - "In the exercise of its power to control its own proceedings the Tribunal must from time to time make decisions as to relevance and as to prolixity, but it must bear in mind at all times the words of Aickin, J. in the Barrier Reef case, (supra), and not sacrifice justice to expedition".

15. So the Tribunal in chartering its course and controlling its proceedings must heed the growing body of judicial pronouncements as to principles governing the conduct of inquiries which, as is here the case, are by their very nature not only important, but complicated and difficult. But the public interest requires a firm hold on the helm and it would be unfortunate if its statutory obligation to be thorough became confused by notions that undue prolixity can not in fact be controlled.

16. In TVW Enterprises Ltd (supra) Forster J. held that the same Tribunal was obliged, in deciding whether or not it should refuse to grant the licence "of the kind contemplated by the notice" to consider the choice of frequencies set out in the Minister's original notice (set out at page 92 of his judgment) which in his view was a matter which was relevant to the public interest. His Honour stated (page 93) :

"Section 83(6) (d) lays down no criteria to
guide the Tribunal as to the grounds upon
which the grant of a licence contemplated by
the matters set out in the notice may be
refused. If, as I have said, it is correct
to say the choice of frequency is one of the
matters which are comprehended in the phrase
'licence of the kind contemplated' then, in
my view, the Tribunal is obliged to consider
this matter in order that it may decide
whether or not it should refuse to grant a
licence of the kind contemplated by the
notice."

17. It was submitted on behalf of TVW that by virtue of the same reasoning the Tribunal must receive and consider evidence relating to the desirability, public need for and feasibility of establishment of a television service of a nature quite different to that provided by a commercial station, the subject of the Minister's notice. Assuming I understand this submission that the Tribunal was here faced with similar considerations I cannot agree. The criteria set out in the Minister's notice which go to locality and technical requirements, as I have said, were held to fall for consideration for the reasons mentioned by Forster J., as matters included in the notice and relevant to the public interest consideration. But I do not agree that the public interest consideration requires, rather than permits the Tribunal to admit the material in dispute as a matter of law on the basis that public interest in an alternative service and the feasibility of establishing it are or may be relevant to the present inquiry. So to hold could enlarge the scope of such inquiries to an impractical level and there may be sound policy reasons why the Tribunal in the exercise of its discretion would not wish to steer such a course.

18. It is not necessary to deal in detail with the scheme of the Act relating to the grant of a new television licence. Clearly the Tribunal when and if called upon to consider questions of relevance in the course of inquiry held subsequent to the Minister's notice published under Section 82 (1) must heed the form of that notice, the type of licence referred to and its specifications. Section 83 requires the Tribunal to hold the inquiry and grant the licence unless it considers by reason of Section 83(6) and the matters referred to in subsection (a) (b) (c) and (d) that it is advisable in the public interest to refuse to grant the licence to the applicants or one or more of them.

19. It is as I have said for the Tribunal to determine questions of relevance during the course of the inquiry but I am not persuaded that by its rulings in the present case it has failed to discharge its statutory responsibility in that by its rulings, it "precluded itself from inquiring into matters which were relevant to the inquiry and which it was bound to investigate": (The Queen v. The Australian Broadcasting Tribunal and Others; Ex Parte Hardiman and Others [1980] HCA 13; (1980) 144 CLR 13 at 34.).

20. It is not I think necessary for me to refer in detail to the Tribunal rulings following TVW's proposal to call detailed evidence concerning alternative television. The rulings and the reasons supporting it were considered and made after the parties had the opportunity of making submissions. The Tribunal has not rejected the concept that public needs or preferences may be relevant. It is investigation of the specific proposals (which are certainly akin to, or contain material akin to an application for a public television licence) upon which the Tribunal refuses to embark. In so doing it expressed concern about the uncertainties of the proposal, and upon the material before me, it might fairly be said that the structure and financing of the mooted station, however thoroughly the submission was prepared, are not only novel but to use the Tribunal's words "must retain a speculative character for legal and practical reasons".

21. Should the Tribunal have decided to admit the evidence at this stage of the inquiry there could be little doubt as to the rights of other parties to investigate and if warranted to call their own evidence on the many issues raised. This would tend to add a new dimension to the inquiry and at a late stage. In my opinion the Tribunal's view as to the relevance of this exercise must at this stage be a matter for the Tribunal, not for the court. By that I mean the Tribunal, at least on this issue, is in a far more advantageous position to decide what is or is not relevant or pertinent.

22. The fact that the Tribunal must heed public interest factors in examining the application for a new commercial licence, does not, in my view, require as a matter of law an omnibus type inquiry into the feasibility of other types of licence, should a party so submit. If this was so the Tribunal is likely to be deflected in the exercise of its specific statutory function. It is as the Tribunal stated, "a question of degree" and the requirement of a thorough investigation, does not embrace the notion that the boundaries of inquiry are without limit merely because some relevance, or possible relevance, may be demonstrated.

23. Inevitably very wide considerations are raised when one talks in terms of public interest, public need or public preferences. It is reasonable to observe that the Tribunal when confronted with applications of this nature must keep a steady eye on the terms of the inquiry.

24. I turn but briefly to the specific grounds of the application before me, amplified in the further and better particulars filed. I deal with them against the background that the Tribunal has indicated it "will hear evidence about public attitudes to additional television services and the effects which the grant of a commercial licence may have on alternative television generally" and its apparent acceptance of the broad notion that various models of alternative television would be feasible. They are the Tribunal's expressions; I do not say that they were required as a matter of law.

25. Grounds 1 and 2 assert the Tribunal by its rulings failed to observe the statutory obligation imposed by Section 25(1) to make "thorough investigations into all matters relevant to the inquiry" and that it erred in its construction of the section which imposed this "paramount obligation". Section 25(1) provides:- "The Tribunal shall without regard to legal forms and solemnities, make a thorough investigation into all matters relevant to an inquiry under this Division" (which deals with inquiries generally) "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". The word "thorough" may be definition cover a range of application from "complete" to "not superficial" (The Concise Oxford Dictionary). In that section it is governed by relevance of the matters under investigation. I agree that thoroughness of the investigation is an important (as opposed to a paramount) obligation, but the demands or standards it imposes must be measured or tempered by the terms of the inquiry and other statutory guidelines as to the Tribunal's approach. There is as Aickin, J. observed in the Barrier Reef Case (supra) no "rigid" rule.

"No doubt the requirements of thoroughness,
expedition and justice do not always proceed
in unison, but the section does not warrant
the sacrifice of justice to expedition. The
Board may have power to place some limits on
cross-examination but that would not warrant
the denial of cross-examination to one party,
while permitting it to another. Moreover, it
would be an unauthorized exercise of the
discretion to deny to all parties a right of
cross-examination. It is not necessary in
the present case to attempt to define the
permissible limits of the directions as to
cross-examination, or as to the conduct of a
hearing, which the section authorizes.
Indeed, it would be dangerous to attempt to
formulate rigid rules on such a matter. In
each case it must depend on the detailed
circumstances."

26. I am not satisfied that the Tribunal's ruling offends this statutory direction.

27. Paragraph 3 of the further and better particulars asserts that factors mentioned by the Tribunal in its ruling, (set out in sub paragraphs (a) to (f) of the particulars) indicate it took into account irrelevant considerations. In the exercise of its discretion these and other matters no doubt fell for consideration in this advanced inquiry and assuming as I must do that they had factual background I am not persuaded that as a matter of law they were irrelevant.

28. Para 4 claims, in effect, that in assessing the public interest factor under Section 83(6) (d) the Tribunal must admit evidence to enable a comparision to be made between the nature of the television service specified in the Minister's notice of the 7th May 1984 and realistic alternative forms of television that may be prejudiced by the grant of a third commercial television licence. That in my view is not correct. Apart from the vexed questions of prolixity such a broad proposition would tend to turn the inquiry into a Section 18 exercise without a wide range of other parties who may be interested being on notice or given the opportunity of making submissions. Such an examination is not required by the Statute and does not of necessity arise in assessing the public interest factor in Section 83(6) (d). It is a very different matter to that dealt with by Forster J. in TVW Enterprises (supra), when, as I have said he held (at page 95) that the commercial viability of the proposed commercial station was an issue in this inquiry necessarily examinable by the Tribunal as being a public interest consideration.

29. Paragraph 5 alleges that the Tribunal was wrong in determining that Section 83(6) (d) required only, before a licence was refused, that the Tribunal be persuaded that a licence for that type of station would not be in the public interest. This it was contended was erroneous, the correct situation being that the Tribunal before grant of a commercial licence must be persuaded that this type of licence was required in preference to other forms of television service. Otherwise it was argued how can the overall public interest be evaluated.? I do not agree that Section 83(6) (d) must be so read, and as I have prefaced such a construction would involve consideration of the need for and perhaps feasibility of stations of a type neither contemplated nor referred to in the Minister's notice under paragraph 82(1)(a). True it is that Forster, J. held in TVW Enterprises (above) that the Tribunal had the duty to investigate questions of commercial viability and the technical parameters referred to in the notice, but that was essentially because such matters went very much to the public essentially because such matters went very much to the public interest qua the granting of the commercial television licence in question. His Honour's views should not in my view be interpreted to apply further so as to compel, if sought, investigation into other types of services and their feasibility. To hold otherwise would not further the scheme laid down by the Act - in fact it could make it well nigh unworkable. Nor of course does the Act itself require such an all embracing investigation in a Section 83 inquiry. The Tribunal has not held that evidence of public attitudes (which is not the sole measure of public interest) will be necessarily excluded nor does it in this ruling appear to exclude consideration of possible prejudice to potential, alternative services. It is investigation of TVW'S specific proposals which it shuns. If the legislative requirement was that the Tribunal should if required, rather than upon its own motion, investigate alternative services upon a Ministerial notice relating to a commercial station, one would expect the legislation to have so provided. For this Court to hold that such an obligation exists - upon demand as it were - (and many parallel similar circumstances or applications can be envisaged), would tend to deprive the Tribunal of the ability to control its own inquiries and assessments of relevance, a situation which may soon prove unworkable.

30. Paragraph 6 contends that the Tribunal was entitled to hold as a basis for rejecting the application for a commercial licence that an alternative form of television service better answered or satisfied the public interest or that the grant of a commercial licence would prejudice the setting up of alternative forms of television. I do not read the Tribunal's rulings as seeking to negative its entitlement to roam further, but these are discretionary matters, very different to the proposition that as a matter of law the Tribunal must so act.

31. In conclusion I say only this. The task of the Tribunal is formidable and its functions are of importance, not only to those who apply for or oppose the grant of licences, but to the community at large. The statutory requirement that it should act with thoroughness, justice and expedition, which the Tribunal referred to in its rulings, do not always rest easily together when the Tribunal's responsibilities are so wide. It is important that public confidence in the Tribunal be maintained and thus it is that in the conduct of its inquiries and in the face of competing submissions the Tribunal must seek to maintain a balance - not an easy exercise. The Courts in applications such as this have tended, by reason of the issues raised before them, to emphasise those aspects which go to thoroughness and natural justice. The history of this inquiry which appears in the material before me illustrates that the statutory reference to expedition also has, or should have, an important part to play in the scheme of things.

32. For these reasons I am not satisfied that the Tribunal misdirected itself as a matter of law in the exercise of its discretion, nor is it proved that in so doing it took into account either irrelevant matter or failed to take into account considerations which properly called for consideration.

33. I am not satisfied that any of the statutory grounds for Judicial Review have been made out and the application is dismissed. I will hear counsel as to costs.