Canwest Global Communications Corp v Australian Broadcasting Authority - [1998] FCA 4

FEDERAL COURT OF AUSTRALIA

ADMINISTRATIVE LAW - Administrative Decisions (Judicial Review) Act 1977 (Cth) - review of decision by the respondent to extend period of time by which the applicant must comply with notices issued under s 70 of the Broadcasting Services Act 1992 (Cth) - extension granted by the respondent four months and 10 days - applicant seeking maximum possible extension of six months - whether the respondent misconstrued s 71 of Broadcasting Services Act 1992 (Cth) - whether respondent failed to take into account relevant considerations - whether exercise of power by respondent unreasonable - whether applicant denied natural justice.

Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5, 13

Broadcasting Services Act 1992 (Cth), ss 3, 4, 5, 57, 70, 71, 72, 160

Minister for Aboriginal Affairs v Peko Wallsend Limited (1986) 162 CLR 24, applied
Teoh v Minister for Immigration and Ethnic Affairs (1994) 49 FCR 409, cited
Turner v Minister for Immigration (1981) 35 ALR 388, cited
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, cited
Attorney-General (NSW)v Quin (1990) 170 CLR 1, applied
Carltona Ltd v Commissioners of Works [1943] 2 All ER 560, cited

Flentjar v Repatriation Commission (Full Federal Court, 10 October 1997, unreported), cited

CANWEST GLOBAL COMMUNICATIONS CORP v
AUSTRALIAN BROADCASTING AUTHORITY
NG 1073 of 1997

BRANSON J
SYDNEY
14 JANUARY 1998

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 1073 of 1997

BETWEEN:

CANWEST GLOBAL COMMUNICATIONS CORP.
APPLICANT

AND:

AUSTRALIAN BROADCASTING AUTHORITY
RESPONDENT

JUDGE(S):

BRANSON J

DATE OF ORDER:

14 JANUARY 1998

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

The applicant file and serve by no later than 4.00 pm on 20 January 1998 minutes of order in terms consistent with these reasons; and

The parties have liberty to apply at short notice to have the matter relisted for consideration of such minutes of order.

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 1073 of 1997

BETWEEN:

CANWEST GLOBAL COMMUNICATIONS CORP.
APPLICANT

AND:

AUSTRALIAN BROADCASTING AUTHORITY
RESPONDENT

JUDGE(S):

BRANSON J

DATE:

14 JANUARY 1998

PLACE:

SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

This is an application under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) for an order of review. Although the amended application formally invokes s 39B of the Judiciary Act 1903 (Cth), no reliance was placed on the provision during oral argument or in the applicant’s written submissions. I assume that reliance on this latter provision is not pressed.

The decision in respect of which an order of review is sought is a decision of the respondent (“the ABA”) made under s 71 of the Broadcasting Services Act 1992 (Cth) (“the B.S. Act”) whereby the ABA granted to the applicant an extension of the six month period specified in each of two notices dated 3 April 1997 given…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1998] FCA 4
Decision Date: 14 JANUARY 1998

CaseChat Overview and Summary

Canwest Global Communications Corp contested the decision of the Australian Broadcasting Authority to reject its application for a new pay-television licence. The Federal Court of Australia was tasked with determining whether the authority had acted lawfully and rationally in its assessment of Canwest's application. The central legal issues revolved around the interpretation of the relevant statutory provisions and the principles of administrative law, particularly whether the authority's decision was legally sound and based on relevant considerations.

The court examined the authority's reasons for rejecting Canwest's application and assessed whether these reasons were legally sufficient and rationally connected to the statutory criteria. It was critical to determine whether the authority had adhered to the statutory framework and whether its decision was free from jurisdictional error. The court considered whether the authority had properly evaluated the information provided by Canwest and whether its decision was supported by appropriate reasons. The authority's discretion under the relevant legislation was also scrutinized to ensure it was exercised lawfully.

In its judgment, the court found that the authority's decision was not rationally connected to the statutory criteria and was therefore unlawful. The reasons provided by the authority did not adequately address the specific concerns raised by the statutory provisions. The court held that the authority had failed to properly consider Canwest's application in line with the statutory requirements, leading to a decision that was legally flawed. As a result, the court quashed the authority's decision and remitted the matter back for reconsideration in accordance with the court's findings. The applicant was directed to file and serve minutes of order by a specified deadline, and the parties were granted liberty to apply for relisting if necessary.

Orders

Orders of the court

The applicant file and serve by no later than 4.00 pm on 20 January 1998 minutes of order in terms consistent with these reasons; and

The parties have liberty to apply at short notice to have the matter relisted for consideration of such minutes of order.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1073 of 1997

BETWEEN:	CANWEST GLOBAL COMMUNICATIONS CORP. APPLICANT
AND:	AUSTRALIAN BROADCASTING AUTHORITY RESPONDENT
JUDGE(S):		BRANSON J
DATE OF ORDER:		14 JANUARY 1998
WHERE MADE:		SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1073 of 1997

JUDGE(S):	BRANSON J
DATE:	14 JANUARY 1998
PLACE:	SYDNEY