Federal Court Rejects Claimant’s Judicial Review of Broadcasting Tribunal

OUTCOME: Dismissed

BRISBANE

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CATCHWORDS

ADMINISTRATIVE - application to review certain proceedings of the

Australian Broadcasting Tribunal - Tribunal's power to approve or

reject applications lodged outside the time [NAME] by sub-s.

92F(7A) of the Broadcasting and Television Act and its

jurisdiction to hold an inquiry - "in accordance with sub-s.

(7A)", "made in accordance with 3.92F",

Administrative Decisions (Judicial Review) Act, 3.5

Broadcasting and Television Act, s.92F and 92FAA

[APPELLANT] v. AUSTRALIAN BROADCASTING TRIBUNAL AND ORS

(Qld G97 of 1983)

[APPELLANT] v. [NAME] (AS CHATRMAN OF THE AUSTRALIAN BROADCASTING TRIBUNAL) AND ORS (Qld G99 of 1983)

FITZGERALD J.

22 NOVEMBER 1983

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IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G97 & G99 of 1983 GENERAL DIVISION )

[APPELLANT] : [APPELLANT]

Applicant

AUSTRALIAN BROADCASTING TRIBUNAL

[APPELLANT] Applicant AND: [NAME] (AS [NAME] OF THE AUSTRALIAN BROADCASTING TRIBUNAL) [APPELLANT] AND: AUSTRALIAN BROADCASTING TRIBUNAL [APPELLANT] AND:

[APPELLANT] [COMPANY] [APPELLANT]

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ORDER

JUDGE MAKING ORDER: FITZGERALD J.

DATE OF ORDER:

WHERE MADE:

22 NOVEMBER 1983 BRISBANE

THE COURT ORDERS THAT:

1.

Applications G97 and G99 of 1983 be dismissed.

The Applicant pay [APPELLANT] [COMPANY]'s taxed costs of and incidental to the hearing of 15 and 16 November 1983, and otherwise of and incidental to Application G99 of 1983. Otherwise, the costs of all parties of

and incidental to Applications G45 and G97 of 1983 are reserved.

The Applicant may file and serve written submissions and any affidavits or other material with respect to the orders for costs which it seeks on or before Friday 25 November 1983 and the other parties may respond in similar fashion on or before Tuesday 29 November 1983. If any party desires that Applications G45 or G97 of 1983 be restored for further argument as to costs, the District Registrar must be notified in writing on or before Wednesday, 30 November 1983.

IN THE FEDERAL COURT OF AUSTRALIA )

QUEENSLAND DISTRICT REGISTRY ) QLD G97 & G99 of 1983 GENERAL DIVISION )

[APPELLANT] :

[APPELLANT]

Applicant AND: AUSTRALIAN BROADCASTING TRIBUNAL [APPELLANT] AND: [APPELLANT] [APPELLANT] AND: [APPELLANT] [APPELLANT] AND:

[APPELLANT] [APPELLANT]:

[APPELLANT]

Applicant AND:

[NAME] (AS [NAME] OF THE AUSTRALIAN BROADCASTING TRIBUNAL)

[APPELLANT] TRIBUNAL

[APPELLANT]

AND:

[APPELLANT] [APPELLANT] J. 22 NOVEMBER 1983

REASONS FOR JUDGMENT

The applicant, [APPELLANT] ("[APPELLANT]"), has applied to the Court for orders under the

Administrative Decisions (Judicial Review) Act 1977 ("the

Judicial Review Act") in respect of certain proceedings of the

Australian Broadcasting Tribunal ("the Tribunal"). The Tribunal, its [NAME], other members of the Tribunal involved in the proceedings before the Tribunal, and [APPELLANT] [COMPANY] ("[NAME]"), which is a party to those proceedings, are all respondents to the present Applications. In all, [APPELLANT] has made three Applications. The first, Application G45 of 1983, has been dismissed by consent but the costs have been reserved. The second, Application G97 of 1983, sought the review of a number of decisions made by the Tribunal in the course of the proceedings before it. Sensibly, these questions have now been resolved by the legal representatives of [APPELLANT] and [NAME], although again there is an outstanding issue as to costs. A further question, raised both by Application G97 and the third Application, G99 of 1983, remains for resolution. [APPELLANT] contends that the Tribunal has no jurisdiction in the proceedings before 1t. That question depends

upon the construction of the Broadcasting and Television Act 1942

("[NAME]").

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[APPELLANT] is a public company and the licencee of commercial television station [NAME] and commercial television translator stations [NAME]-5A Townsville. Its wholly owned subsidiary companies hold licences under [NAME] for commercial television station [NAME] and commercial broadcasting stations [NAME] and [NAME]. Another subsidiary, in which [APPELLANT] holds a majority interest, is the licencee of [NAME] [NAME]. [APPELLANT] also has smaller interests, directly or through gubsidiaries, in companies holding other licences under

[NAME]. [APPELLANT] 8 May 1982 and 19 September 1982,

[NAME] acquired 30,667 shares in the issued capital of

[APPELLANT]. [NAME] had no application to those

acquisitions. However, further acquisitions of shares in [APPELLANT] by [NAME] since that time are affected by [NAME] and it is its operation in relation to those

acquisitions which lies at the heart of the present controversy.

The parties have argued their dispute by reference to

Part IV Division 3 of [NAME], and in particular ss.

92F and 92FAA, in effect ignoring all licences in which

[APPELLANT] is interested beyond a single commercial television licence, It is common ground that it is appropriate to approach this matter in that way, and that the outcome of Applications G97 and G99 would not be affected by other material provisions of [NAME] such as those contained in Part IV Division 2

relating to commercial broadcasting licences.

92FAA.

It is necessary to set out some parts of ss.

Section 92F provides:

"(3) Where a transaction 1s proposed, the [NAME] to the transaction ... may

(a) give the Tribunal notice in writing, stating -

(b) lodge an application with the Tribunal, in accordance with the form approved by

the Tribunal, for approval of the transaction in so far as it affects the [NAME].

(7A) [NAME] to whom this section applies in relation to a transaction (other than a [NAME] who has lodged an application in relation to the transaction in accordance with paragraph (3)(b)) shall, not later than the 28th day after the transaction takes place or such later day as the Tribunal, on application, allows by notice in writing served on the person before that 28th day, lodge with the Tribunal, in accordance with the form approved by the Tribunal, an application for approval of the transaction in so far as it affects the person.

(7B) An application lodged in pursuance of paragraph (3)(b) or sub-section (7A) ... shall be taken not to be lodged in accordance with that paragraph or sub-section unless it is accompanied by a statutory declaration ...

(7D) On receipt of a ... application given to or lodged with the Tribunal by a person in

pursuance of sub-section (3) or (7A), the [NAME] shall ~-

(a) if the... application does not comply with the requirements of this section - reject the ... application and give the person such directions as are necessary

to ensure that it complies with those requirements; or

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(b) din any other case - accept the application, and, for the purpose of this Act, the ...

application shall be taken not to be ... lodged with the Tribunal until it has been so accepted.

(7E) Where a transaction takes place ata particular time anda person 18 a [NAME] to the transaction, then, unless -

(a) immediately before that time, there was in effect a notice given by the person in accordance with paragraph (3)(a) in relation to the transaction; or

(b) before that time, an application was lodged by the person in accordance with paragraph (3)(b) in relation to the transaction,

the person is guilty of a separate offence in respect of [NAME] day (including the day of a conviction under this sub-section or any subsequent day) after that time until -

(c) the day on which he gives a notice in relation to the transaction in accordance with paragraph (3)(a) (modified so far as is necessary to take account of the fact

that the transaction has taken place); or

(ad) the day on which he lodges an application in relation to the transaction in accordance with sub-section (7A).

(7F) A person who fails to comply with sub-section ... (7A) 13 guilty of a separate offence in respect of [NAME] day (including the day of a conviction under this sub-section or

any subsequent day) during which the failure continues."

Section 92FAA provides:

"(1) Subject to sub-section (2), where an application in relation toa transaction is made in accordance with section 92F, the Tribunal shall, by notice in writing served on the applicant, approve the transaction in so far as it affects the applicant.

(2) Where an application in relation toa transaction is so made and -

then subject to this section, the Tribunal by notice in writing served on the applicant -

. The Tribunal then appointed an inquiry in relation to the transactions, in conjunction with an inquiry into [APPELLANT]' commercial television licence, under sub-ss. 92FAA (6) and (8). The inquiry opened on 16 June 1983. [APPELLANT] was approved by the Tribunal as "a person having an

interest in the proceedings" under s.22 of [NAME]

and has been permitted to be represented and to participate in the inquiry. The inquiry is part heard but stands adjourned to

permit the determination of the Applications to this Court under

the Judicial Review Act.

The dispute presently before the Court centres upon the

single fact that the applications for approval were not made

within the time [NAME] by 3.92F of [NAME]. It

is common ground that questions concerning the sufficiency and accuracy of the applications for approval in other respects will fall for consideration by the Tribunal in the course of the inquiry, if it is to proceed, and may affect either its power to approve the applications or the course which it is proper for it to follow in the exercise of that power. There has been some

debate already before the Tribunal concerning the various

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applications, and, insofar as it has ruled, it has ruled against [APPELLANT]. However, as I understand it, it is accepted on all sides that no ruling thus far given by the Tribunal and no conduct by' the Tribunal [NAME] either precludes the Court from

determining the present question or will preclude the Tribunal

from further considering the sufficiency and accuracy of the applications at the close of the evidence, or any review by the Court of the Tribunal's decision. No question presently arises concerning the conclusiveness, or lack of conclusiveness, of any determination thus far by the Tribunal or ats [NAME] with

respect to such issues.

Perhaps because of the nature of an Application to the

Court under the Judicial Review Act and the stage in the

proceedings before the Tribunal at which the Court has' been approached, [APPELLANT] tended to concentrate, although not exclusively, upon the Tribunal's jurisdiction to hold an inquiry. It was submitted for [APPELLANT] that the Tribunai's jurisdiction

to hold an inquiry stems from s.92FAA of [NAME]

and, more particularly, sub-s. (6) of that section which denies the Tribunal power to refuse an application unless the Tribunal has held an inquiry. However, neither sub-s, 92FAA(6) nor sub-s. 18(1), which empowers the Tribunal to hold an inquiry into any

matter before taking action under [NAME] in

relation to that matter, expressly confines the Tribunal to

inquiries in relation to those transactions falling within the operation of 3s.92F in respect of which the requirements of that

section have been satisfied, and it does not seem helpful to

consider the Tribunal's jurisdiction to hold an inquiry

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separately from its power to approve or reject the application in relation to the transactions to which the applications refer; in the course of argument, the two questions, jurisdiction to inquire and power to approve, tended to run together. [APPELLANT] addressed two arguments in support of its proposition that the Tribunal could not approve the late applications. The first of those arguments turned on the construction of 3.92F of

[NAME] and the other on the interpretation of

s.92FAA.

[APPELLANT]' argument based on s.92F may be quite briefly stated. A [NAME] must lodge with the Tribunal an application for approval of a transaction, in accordance with the form approved by the Tribunal, either before the transaction (para. 92F(3)(b)), or, if prior to the transaction a notice has been given pursuant to para 92F(3)(a), not later than the 28th day after the transaction (sub-s. 92F(7A)). A person to whom 8.92F applies in relation to the transaction other than a [NAME] must lodge such an application with the Tribunal not later than the 28th day after the transaction (sub-s. 92F(7A)). Failure by a [NAME] either to give notice under para 92F(3)(a) or to lodge an application under para 92F(3)(b) prior to the transaction constitutes an offence (sub-s. 92F(7E)). Failure by either a [NAME] or other

person to whom s.92F applies in relation toa transaction to

comply with sub-s. 92F(7A) is also an offence (sub-s. 92(7F). By

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para 92(7D) (a) the [NAME] of the Tribunal is required to reject a notice or application given to or lodged with the

Tribunal by a person in pursuance of sub-s. (3) or sub-s. (7A) of 8.92F if the notice or application "does not comply with the

requirements" of that section.

[APPELLANT]' submission 1s that an application out of time does not comply with the requirement of s.92F and thus cannot be accepted by the [NAME] of the Tribunal but must be rejected, from which it is argued that there is no application to be approved or refused, or giving occasion for an inquiry,

pursuant to s.92FAA.

In my opinion, there are a number of indications in

s.92F itself which require rejection of [APPELLANT]' argument.

Section 92F does not merely create an entitlement to apply for approval of a transaction to which it applies but imposes an obligation to do so. Although the obligation to make application for approval has a temporal aspect, non-compliance

.with which constitutes an offence, the principal purpose of $.92F is to ensure that the Tribunal is provided with information needed to perform its statutory tasks of supervision and control: for example, under s.92M; (see also ss. 92F(7C)),. The additional statutory requirements concerning the timing of the provision of the information, whilst important, are ancillary to the fundamental requirement that the information be provided. It

would defeat the evident scope and object of [NAME]

and the underlying public policy concerned with the provision of

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13.

the information to the Tribunal to hold that an application lodged out of time must be rejected, or that such an application and its purported acceptance by the [NAME] of the Tribunal are

nullities.

Indeed, s.92F makes it clear that there is an on-going obligation to lodge an application despite the explration of the

period permitted for such a step: see also 5.92U. A _ [NAME] who has not complied with sub-s. 92F(3) before a transaction has a further obligation to make an application imposed upon it by sub-s. 92F(7A). Further, the obligations under both sub-sections continue and give rise to repeated offences for [NAME] day until performance of the statutory obligation. By the combined operation of gub-ss. 92F(3) and (7A), [NAME] to whom s.92F applies in relation to a4 transaction, including a4 [NAME], 1s required to lodge an application and, if the obligation is not performed in the specified time, an offence or offences are committed until the

obligation is performed. It is clear that effective lodgment of

an application may occur out of time.

Sub-section 92F(7D) provides, inter alia, that for the

purposes of [NAME], "the ... application shall be

taken not to be ... lodged with the Tribunal until it has been so accepted", i.e. by the [NAME], thereby perhaps impliedly requiring the [NAME] to accept an application in order to permit performance of the statutory obligation to lodge it. What

is provided in sub-s. 92F(7D) may create difficulties if given

full literal effect; e.g. if there was delay in an acceptance

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by the [NAME] which had the consequence that an application, although provided by an applicant, was not accepted within the [NAME] time, and the introductory words of sub-s. 92F(D) themselves seem to assume that for some purposes lodgment with the Tribunal precedes a decision by the [NAME] whether to accept or reject. However, it is unnecessary to pursue those questions. There igs nothing whatever in s.92F, other than para. 92F(7D)(a), which lends any support to the view that an application for approval provided in performance of the statutory obligation to do so but outside the [NAME] time cannot be

accepted but must be rejected by the [NAME].

As I have already indicated, such a construction of para. 92F(7D)(a) would, in my opinion, defeat the manifest object of the legislation. Further, I am satisfied that the language of

the paragraph does not require such a conclusion. The subject matter of the paragraph is "the ... application", i.e., the documentation. There are a number of provisions of s.92F which

specifically state "the requirements" with which the application, as distinct from the applicant, must "comply". In my opinion, it ig with these "requirements" that para. 92F(7D)(a) 18 concerned. This view is confirmed by the latter part of the paragraph which requires the [NAME] in rejecting an application to "give... such directions as are necessary to ensure that it (i.e. the application) complies with those requirements". No direction could lead to compliance with atime limit which had already

expired, and, it may he noted, that time can only be extended

prior to the date for compliance: sub-s. 92F(7A). In all cases not falling within para. 72F(7D)(a), the [NAME] must accept the

application (para. 92F(7D)(b)).

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Accordingly, I reject [APPELLANT]' argument founded on

s.92F.

[NAME]'s second argument was based on sub-section 92FAA(1) which authorises the Tribunal to approve a transaction only where an application in relation to that transaction is "made in accordance with s.92F". By sub-s. 92FAA(13), the Tribunal is forbidden to approve a transaction in relation to which 3.92F applies except as provided by s.92FAA. Sub-section 92FAA(2), which contains the Tribunal's power to refuse an application (but only after an inquiry (sub-s. 92FAA(6)), relates only to applications "so made", that is to say "made in accordance with s.92F" as provided an sub-s. 92FAA(1). [APPELLANT]' submitted that an application which was made out of

time was not made in accordance with 5.92F.

At first glance, the words of sub-s. 92FAA(1) seem to lend force to this submission. It does, however, seem suprising that, if the submission is correct, an application for approval could be neither approved nor refused but must be left to continue in a legislative limbo. An indication that this was not contemplated is perhaps to be found in s.92N, which relates the Tribunal's power to order divestitute in respect of such

acquisitions az are now in question to contravention of 3.92FAA,

not s.92F.

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Ultimately, it becomes necessary to see what is meant by the phrase "made in accordance with s.92F" when used in sub-s. 92FAA(1). I accept that, as [APPELLANT] asserts, prima facie that phrase seems to require compliance ain every respect with 3.92F, including its requirements with respect to time. However, I have concluded that that is not the sense in which the phrase

is used in s.92FAA.

An application for approval must be "in accordance with the form approved by the Tribunal": para. 92F(3)(b) and sub-s. 92F(7A). An application is taken "not to be lodged in accordance with that paragraph or sub-section unless it is accompanied by a statutory declaration": sub-s. 92(7B). Failure by a [NAME] either to give a notice "in accordance with" para. 92F(3)(a) or to lodge an application "in accordance with" para. 92F(3)(b) prior to a transaction constitutes a separate offence [NAME] day until a modified notice 18 give after the transaction or an application in relation to the transaction is lodged "in

accordance with sub-s. (7A)": para. 92F(7E)(d).

Paragraph 92F(7E)(d) cannot sensibly be read as meaning that, if a [NAME] waits long enough and does nothing, the offences will cease, i.e. after 28 days. Nor can it mean that, after 28 days, the offences can never be terminated. It must, therefore, be possible to lodge an application for approval "in accordance with sub-3. (7A)" within the meaning of para. 92F(7E)(d) after the time limited by sub-s. 92(7A). Similarly, under sub-s. 92F(7F), a failure "to comply with sub-s. (7A)" can

be terminated, again obviously after the time limited by that

sub-section for compliance.

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Section 92FAA is complementary to 5.92F. In my opinion, an application may be "made in accordance with s.92F" for the purposes of sub-s. 92FAA(1) although lodged out of time. As earlier noted, sub-s. 92F(7C) does not presently fall for

consideration.

Accordingly, I have concluded that [APPELLANT]' contentions fail. This conclusion makes it unnecessary to consider other questions, for example, relating to [APPELLANT]'

locus standi or the availability of the relief claimed in these

proceedings on the basis of its contentions.

Application G45 of 1983 has already been dismissed. The order of the Court is that Applications G97 and G99 of 1983 be dismissed. [APPELLANT] must pay [NAME]'s taxed costs of and incidental to the hearing before me last Tuesday and Wednesday, 15 and 16 November 1983, and otherwise of and incidental to Application G99 of 1983. Otherwise, the costs of all parties of and incidental to Applications G45 and G97 of 1983 are reserved. [APPELLANT] may file and serve written submissions and any affidavits or other material with respect to the orders for costs which it seeks on or before Friday 25 November 1983 and the other parties may respond in similar fashion on or before Tuesday 29 November 1983. If any party desires that Applications G45 or G97 of 1983 be restored for further argument as to costs, the District Registrar must be notified in writing on or before

Wednesday, 30 November 1983.

I certify that this andthe /6 preceding rages are a true copy of the reasons for judgment herein of His Honour

Mr, Justice Fitzgerald