Amalgamated Marketing Pty Ltd v Minister for Transport and Communications

[1990] FCA 301

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JUDGMENT NO.. 361 / 9 0 ........ ....... ..m--

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NOT FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )

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NEW SOU TH WALES DISTRICT REGISTRY ) No. NG 61 of 1990

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GENERAL DIVISION 1

BETWEEN: AMALGAMATED MARKETING PTY	I ,
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LIMITED

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Applicants	I : I -
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AND :	MINISTER FOR TRANSPORT AND	i	;
COMMUNICATIONS	1-
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First Respondent l

IPSWICH AND WEST MORETON BROADCASTING CORPORATION PTY LIMITED

Second Respondent

22 MAY 1990

REASONS FOR JUDGMENT

LOCKHART J.

This proceeding	was commenced on 13 February this year by	, . , .S
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in relation to the prospective issue of that licence.
the applicant seeking to review certain conduct of the first	L.
respondent, the Minister for Transport and Communications,	!
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relating to the issue of a licence warrant for a commercial FM	1 m:
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radio licence to serve Ipswich and surrounding areas.	i
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The second respondent was an applicant for the licence and, as it emerged, after the proceedings were instituted, the successful applicant. The applicant was an interested party

The applicant's essential complaint is, so far as I can discern it, that it was not properly or fully consulted or, on one view of the matter, consulted at all with respect to matters relevant to the issue of the licence; that submissions which it sought to put relating amongst other things to technical matters were not properly or at all taken into account by the first respondent; and that breaches of the rules of natural justice occurred with respect to the prospective issue of the licence warrant, including alleged failure of the first respondent to inform the applicant of certain technical conditions set out in what is described as the consultation listing. There is also asserted to have been a failure by the first respondent to take various relevant considerations into account which would have affected the applicant itself.

The application for an order of review has been amended and at least initially the applicant sought, amongst other things, injunctive relief to restrain the first respondent from granting the licence warrant to the second respondent.

been instituted the relevant meetings which the applicant has	In fact, what has occurred is that since the proceedings have
sought appear to have been held. But in the result the applicant has satisfied itself that even if it were to succeed in these proceedings, it would be a Pyrrhic victory because as
a matter of exercise of discretion by the first respondent it

I	is not likely that the tactical goal which the applicant seeks
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would be achieved, namely, to prevent the issue of the relevant licence warrant to the second respondent. Consequently, the proceedings are to be dismissed by consent, and the only issue is as to costs.
It is always difficult to assess costs when one is not fully seized of the merits of the case or of the evidence in support of it; but Mr Woods who appears for the applicant has referred me to a bundle of documents which are most helpful in resolving the question of costs. I have looked at them and have heard what has been said by him, by Miss Watson for the first respondent and Mr Marx for the second respondent.
In my view, so far as the costs of the first respondent are concerned, the proper order for costs is that the applicant pay the costs of the first respondent. Although I see some force in the view that the meetings or discussions which the applicant was seeking with the first respondent have, in fact, been held, I do not think that that consideration or any of the other matters to which I have been
referred would occasion any order for costs other than the usual order in the circumstances, namely, that the applicant,
when the application is being dismissed pay the costs of the first respondent.
The case is even stronger so far as the second respondent is concerned. It was, I think, quite properly joined by the applicant as it plainly had a vital interest in the outcome of the proceedings. But nothing to which I have been referred

suggests to me that the usual order for costs ought not to
follow.

Accordingly, the application is dismissed by consent. As to costs, I order the applicant to pay the costs of the first respondent and the second respondent of the proceeding.

I certify that this and the preceding three (3) pages are a true copy of the reasons for judgment herein of the Honourable M r Justice Lockhart.

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Associate C, . cc,_ , C\

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Dated:  22 May 1990

Solicitors for the Applicant:	Mr Woods, Henry Davis York
Solicitors for the First	Miss D Watson, Australian

Respondent:  , Government Solicitor

Solicitor for the Second
Respondent:	Mr Paul Marx, Dale & Fallu
Date of Hearing:	2 2 May 1990
Date of Judgment:	22 May 1990