Capital City Broadcasting Pty Ltd v Australian Broadcasting Tribunal

[1985] FCA 535

Re: CAPITAL CITY BROADCASTERS LIMITED and MACQUARIE BROADCASTING HOLDINGS
LIMITED
And: AUSTRALIAN BROADCASTING TRIBUNAL, AUSTRALIAN CAPITAL TLEVISION PTY
LIMITED, CANBERRA TELECASTERS PTY LIMITED, CANBERRA STEREO FM PTY LIMITED,
CAPITAL CITY FM PTY LIMITED and TRIPLE A FM PTY LIMITED
Nos. G297 and G298 of 1985
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Wilcox J.

CATCHWORDS

Administrative Law - Broadcasting and television - Inquiries by Australian Broadcasting Tribunal into applications for supplementary licences - Announcement by Minister regarding possible changes in relevant legislation - Applications by two applicants for adjournment of inquiries - Applications refused - Duty of Tribunal to conduct inquiry 'as soon as practicable' - Meaning of this phrase - Whether Tribunal took into account any extraneous matters in determining applications - Whether Tribunal failed to have regard to relevant matters - Whether decision to refuse application was so unreasonable that no reasonable person could have so exercised the power.

Broadcasting and Television Act 1942 ss. 25, 82A, 83.

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

The Queen v. Australian Broadcasting Tribunal; ex parte 2 HD Pty Limited (1979) 144 C.L.R. 45, Parramatta City Council v. Pestell (1972) 128 C.L.R. 305; Re W (An Infant)(1971) A.C. 682 referred to.

HEARING

SYDNEY
#DATE 8:10:1985

ORDER

The Applications be dismised.

The applicants pay to the respondents their costs of the proceedings; such costs to be calculated upon the basis that there was before the Court only a single application and that the respondent Capital City FM Pty Limited submitted to the order of the Court.

The exhibits be returned.

NOTE: Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

JUDGE1

There are before the Court two Applications made under the Administrative Decisions (Judicial Review) Act, 1977. They relate to the same decision of the Australian Broadcasting Tribunal, the first respondent to each application. By consent, the two matters have been heard together on the basis of a final hearing. The respective applicants are Capital City Broadcasters Pty Limited and Macquarie Broadcasting Holdings Pty Limited. Each of these companies is an existing licensee of a commercial broadcasting station in Canberra. Respectively, they operate stations 2CC and 2CA. Each company has made application to the Minister for the grant to it, pursuant to 82A(1) of the Broadcasting and Television Act, 1942, of a supplementary licence to entitle it to operate an FM service.

1. The second respondent, Australian Capital Television Pty Limited, is the licensee of a commercial television station in Canberra known as CTC 7. This respondent has made an application to the Minister for the grant to it, pursuant to 82A(2) of the Act, of a supplementary licence for the Canberra area.

2. The application by CTC 7 was referred by the Minister to the Australian Broadcasting Tribunal on 3 December 1984. On 3 January 1985 the Minister referred to the Tribunal the two applications for supplementary broadcasting licences. On 12 February 1985 the Tribunal advertised for public submissions in respect of all three applications. Various submissions were received, including some submissions on behalf of companies who desired to obtain an independent broadcasting or television licence in the event of the applications for supplementary licences being unsuccessful. The third, fourth, fifth and sixth respondents to the present proceedings are companies falling within that category.

3. On 19 February 1985 the Minister for Communications announced that the Forward Development Unit of his department would undertake a special study into the future direction of Commercial Broadcasting in Australia. That unit dealt, first, with television. On 30 June 1985 it submitted to the Minister a report called "Future Directions for Commercial Television". The report was publicly released on 9 July 1985. In a media release of that date the Minister said:
   
   

"In view of the importance of the report the Government would accept submissions on its content until 11 October 1985. Decisions should be taken by the Government at the end of this year.

"To help with the process of public debate the Department of Communications was organizing two seminars on the report - one in August for the broadcasting industry, the other in September for the public.

"The Minister said that pending Government decisions on the report no further applications for commercial television supplementary licences would be referred to the Australian Broadcasting Tribunal for inquiry...

"To date one application for a supplementary, or second, television licence, for Canberra, had been referred to the Tribunal which would itself decide whether to proceed with the inquiry because on such matters it was independent of the Government."

1. On 18 and 19 July 1985 the Tribunal sat to consider preliminary matters in relation to the three Canberra applications. The Tribunal heard argument as to whether, in the light of the report and the Minister's media release, it should proceed. Mr Mark Armstrong, the chairman of the division of the Tribunal hearing the applications, said:
   
   

"The Tribunal has considered the submissions about whether to proceed with the television inquiry and it has concluded that 83 of the Act does not give the Tribunal any discretion not to proceed. So, the other matters raised do not need to be decided. The matter is resolved because of the words Parliament has used in the Broadcasting and Television Act."

1. Section 83(1) of the Broadcasting and Television Act requires that the Tribunal shall, "as soon as practicable" after the expiration of the period for submissions, hold an inquiry into the grant of the licence.

2. Reference should also be made to 25(1) of the Act which 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, 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."

1. On 27 August 1985 the Tribunal issued to the parties directions as to the conduct of the inquiries into the applications. It was provided that, commencing on 2 October 1985, there should be a joint hearing into one aspect of all three inquiries, called a "revenue hearing". This hearing was to consider:
   
   

"(1) The amount of advertising revenue likely to be available to radio, television and other relevant media in the Canberra area in each of the next succeeding eight year; and

(2) The respective shares of that revenue available or likely to be available to radio and television stations respectively in the Canberra area in that period."

The directions were subsequently varied in certain respects, not presently material.

1. On 25 September 1985 - one week before the revenue inquiry was due to start - the Tribunal telexed to the parties a copy of a telex which it had that day received from the Minister. This telex read as follows:
   
   

"I am advised that hearings into the grant of a supplementary television licence for Canberra are due to resume on Wednesday, 2 October 1985. As the Tribunal is aware, the Government will shortly be considering questions relating to the equalisation of television services throughout regional Australia. These questions arise from a report by my department's Forward Development Unit into the future of commercial television in Australia. As a result of these considerations, it is unlikely that the present arrangements regarding supplementary licences will remain after the end of this year. Indeed I expect that changes to relevant legislation and consequently to administrative procedures need (sic) to implement either MCS or aggregation options will render the present supplementary licence inquiry irrelevant. I am therefore concerned that the ABT's continuation of hearings for a supplementary television licence in Canberra could result in criticism of both the Government and the ABT, because of the potential for waste of resources. Accordingly, I suggest that it would be sensible for the Tribunal to consider deferring the resumed hearings into the Canberra supplementary television licence until such time as the Government's policy on this issue is clarified. Should you wish to discuss these matters I would be happy to hear from you."

This telex caused a flurry of activity. Several of the parties responded to the telex from the Tribunal by submitting that the inquiry ought to be adjourned. One party, Triple A FM Pty Limited, the sixth respondent herein - which company is interested in obtaining an independent broadcasting licence - urged abandonment of the revenue hearing and that the broadcasting inquiry should proceed as speedily as possible. In the result, the Tribunal decided that no change would be made to the hearing schedule until after all parties had been heard on the morning of 2 October. On 27 September the parties were notified of this decision and warned to be prepared for the opening of the revenue hearing on 2 October, "despite the possibility that the hearing schedule might be altered after consideration of the views of all parties". The Tribunal did resume the matter on the morning of 2 October. It invited the parties to make submissions as to the course appropriate to be taken. At 2.15 pm that day Mr Armstrong announced the Tribunal's decision in these words:

"The Tribunal has considered all submissions relating to the future of the revenue and other aspects of the inquiries. Its decision is as follows.

The Tribunal has a duty in inquire expeditiously - as stated in its earlier ruling. Of course, the Tribunal also has the power to adjourn for appropriate periods, given a similar duty of expedition in other current or pending inquiries. The Tribunal has considered the Government policy statements about likely legislation referred to this morning. Two particular points should be mentioned. First, it appears from the public record that current operative policy on supplementary radio licences remains that in the media release of February 18, 1985 reproduced at page 3 of volume 2 of the Report of the Further Development Unit of the Department of Communications. The relevant paragraph appears to be:

'The broadcasting system is a dynamic entity which cannot be frozen while we take time out to examine its future. Existing broadcasting policies are to continue during the period of the study and planning and licencing processes under way, such as suplimentary licences, will not be halted'.

The second particular point of Government policy is in the telex of September 25 referred to frequently this morning in which the Minister has indicated there are impending changes likely in relation to television.

In that telex the Minister has not indicated there are impending changes for radio.

The Tribunal has also considered many factors relating to the convenience of the parties and the interests of the public. Whatever course the Tribunal takes will involve some inconvenience or waste. The question appears to be one of which possible option involves least inconvenience and waste.

The Tribunal considers on balance that the least wasteful course is to proceed with the revenue inquiry.

The scheduling of separate radio and TV inquiries can ensure that the problem envisaged by the Minister's statement will not arise.

The Tribunal would not be able to proceed to a separate television inquiry before February or March and likely new developments if known before then can be taken into account as they are announced.

Even next year it will be possible to proceed in the radio inquiry before the television inquiry if necessary to allow the legislative position to be clarified. The Tribunal will announce which of the radio or television inquiries will come first during the revenue hearing. It appears most evidence in the revenue inquiry will be required for the radio inquiry in any event."

1. After this decision was announced counsel for the present applicants sought from the Tribunal a stay of its decision - that is, an adjournment for a few days - to permit the making of these Applications in this Court. In the event, the Tribunal confined itself to determining certain preliminary matters and to receiving certain evidence in chief tendered on behalf of CTC 7 before adjourning during the afternoon of 4 October. It has agreed not to sit today so as to permit counsel engaged before it to appear in this Court. The present intention of the Tribunal, I am informed, is to resume the revenue inquiry tomorrow. It will then sit on Thursday and Friday of this week. By reason of other commitments of the members of the Tribunal, the further hearing of the application will then be adjourned until next year.

2. The submission of counsel for the applicants is that the Tribunal erred in refusing his application made last Wednesday to adjourn at that time until next year. From what has been said it will be apparent that, in practical terms, the contest relates only to one and a half days last week and three days this week. The applicants do not contend that they have been prejudiced because the tribunal has prematurely "forced on" the hearing. They concede that, under ordinary circumstances, there would be no detriment to them in proceeding at this stage with the inquiry. They say, however, that, having regard to the report of the Forward Development Unit on television, the work being done by that unit on radio - which is expected to result in the release of a further report next February - and the attitude of the Minister as expressed in his telex of 25 September, it is futile to proceed with the inquiries into the applications at this stage and that, to do so, involves the parties - including, of course, the applicants - in unnecessary expense.

3. The submissions put to me on behalf of the applicants acknowledge that it would not be sufficient that the applicants persuade me that, had I been the Tribunal, I would have allowed the application for the adjournment. It was for the Tribunal, in the conduct of its own inquiries, to determine whether it should adhere to the arranged timetable or whether it should forthwith adjourn until February. The applicants are entitled to succeed in these Applications if, but only if, they are able to demonstrate that the Tribunal fell into an error of law, reviewable under the Administrative Decisions (Judicial Review) Act in relation to the manner in which the Tribunal exercised its discretion in respect of the adjournment. It is neither necessary nor helpful for me to consider what course I would have taken had I been the Tribunal, and I do not do so.

4. The applicants rely upon 5(1)(e) and 5(1)(f) of the Administrative Decisions (Judicial Review) Act. I will follow the course adopted by their counsel and consider first the submission arising under 5(1)(f): that the decision involved an error of law. The error of law identified by counsel in his submissions today is that the Tribunal erroneously construed s.83 of the Broadcasting and Television Act as requiring it to proceed with the inquiry regadless of considerations of prudence and good sense. Counsel refers to the definition in the Macquarie dictionary of the word "practicable". The relevant definition reads: "Capable of being put into practice, done, or effected, especially with the available means or with reason or prudence; feasible." Counsel submits that the word "practicable" includes considerations of reasonableness and prudence, and that the decision of the Tribunal to proceed regardless of such considerations necessaily involves a misunderstanding of the command contained in s.83 to proceed "as soon as practicable." Counsel draws attention to the language used by Mr Armstrong in announcing the Tribunal's decision on 18 July. At that time Mr Armstrong expressed the view that s.83 "does not give the Tribunal any discretion not to proceed." Counsel links this with the reasons given on 2 October in which Mr Armstrong said, "the Tribunal has a duty to inquire expeditiously - as stated in its earlier ruling." He says that this was a reference to the reasons given on 18 July and that it reflected a continuance of the erroneous view that the Tribunal was bound to proceed forthwith regardless of considerations of reasonableness and prudence.

5. The problem about accepting this view of the Tribunal's attitude is demonstrated by the succeeding sentence in the reasons given on 2 October. Mr Armstrong went on immediately to point out that the Tribunal has the power to adjourn for appropriate periods. He referred to the obligation of the Tribunal to give expedition in other current or pending inquiries. Plainly this was a reference to the fact that the selection of an appropriate period is complicated by the other demands on the time of the members of the Tribunal. Mr Armstrong then went on to refer to the Government policy statement, and to make comments about it, and to make reference to other factors before expressing the view that the inquiry ought to proceed. This course of reasoning is not consistent with an understanding of s.83 that, regardless of any consideration of prudence or reasonableness, the Tribunal was bound to proceed forthwith with the inquiries into the applications.

6. The comment made in the reasons of 18 July has, I think, to be put into the context of what was then being debated. At that time, the Forward Development Unit's report was publicly available. It was because of that fact that there was discussion as to whether the television licence application should proceed. Counsel for the television applicant, CTC7, argued that it should. He addressed the Tribunal as to the effect of the options suggested by the unit upon the work that had been done to date in relation to the inquiry. I think it was entirely understandable that, in the context of a situation where there was merely a report of a unit within a department, without any government commitment, still less legislation, to implement any of the proposals in that report, the Tribunal should regard itself as obliged to proceed with the inquiry. It would not have been a compliance with the requirement to proceed "as soon as practicable" for it to adjourn indefinitely a television application simply because of a departmental report which raised questions as to the desirability of continuing the current legislative system.

7. In any event, as I have said, whatever the position and context in July, it was quite apparent on 2 October that the Tribunal fully understood that it had a discretion to adjourn the proceedings if that appeared to be the proper course to be taken. Under the circumstances, I am not persuaded that there was any misapprehension by the Tribunal of the effect of s.83.

1. In relation to s. 5(1)(e) of the Administrative Decisions (Judicial Review) Act, counsel relies on various categories of alleged improper conduct, being those arising under s.5(2)(a), s.5(2)(b) and s.5(2)(g) of the Act. Section 5(2)(a) provides that the reference in s. 5(1)(e) of the Act to an "improper exercise of a power" shall be construed as including a reference to "taking an irrelevant consideration into account in the exercise of a power". Counsel identifies two alleged irrelevant considerations.

2. The first, he says, is that the Tribunal regarded s. 83 as containing a statutory imperative to proceed regardless of considerations of reasonableness or prudence. I think that this is really an argument for error of law. Obviously, if s.83 had so provided, then it would not have been irrelevant to take into account the requirements of that section. As I have indicated, I do not think that this is the true effect of s. 83 or that the Tribunal so understood it.

3. The second matter relied upon is the reference, in the reasons given by the Tribunal on 2 October, to "waste" in the event of the proceedings being adjourned. Counsel says that there was no evidence of waste and that in taking into account this matter the Tribunal took into acount an irrelevant consideration, thus vitiating its decision. He says that, on the contrary, there would be waste for the proceedings to go ahead when it appeared that it was likely that the legislative framework would change.

4. One difficulty in applying para (a) is that there was apparently no oral evidence before the Tribunal at the time the decision was made. Numerous documents were before the Tribunal and the Tribunal had submissions from counsel for the parties. I asked the counsel for Australian Capital Television Pty Limited, which party was a proponent of the matter proceeding without adjournment, to identify the waste referred to by the tribunal. They pointed out that in the submissions made in July there was some emphasis placed upon the waste of work done to date which would attend any significant deferment of the hearing. In essence, what was being said was that the considerable amount of work which had been done on financial matters would become out of date, and to that extent wasted.

5. It is not difficult to understand that any significant deferment, in a case such as this, does mean that work which has been done has to be revised; and perhaps quite significantly changed to take account of new circumstances. The Tribunal was entitled to have regard to the material before it in determining what attitude it should take to the adjournment, and I think that it was entitled to take the view that there would be some waste if there was any significant deferment. How much weight should be given to that matter was a matter entirely for the Tribunal.

6. It could be said that, in any event, there would have to be significant revision if, as appears likely, the revenue inquiry cannot finish until sometime early next year. On the other hand, it can be said that the course taken of using some time this year is likely to bring forward, to some extent, the ultimate date of completion of the inquiry; and thus reduce the amount of revision required. It was pre-eminently a matter for the Tribunal to weigh these matters, using for that purpose its knowledge of the material before it, of conditions in the industry and of its own commitments. Whatever view may be taken on the matter of weight proper to be attributed to this factor, it is clear that there was material before the Tribunal which it was entitled to take into account. I therefore reject the argument that the decision is invalidated by taking into account an irrelevant consideration.

7. Section 5(2)(b) of the Act makes reference to "failing to take a relevant consideration into account in the exercise of a power". A number of matters have been referred to by counsel for the applicants in relation to this ground. Firstly, it is said that the Tribunal failed to take into account the fact that the adjournments were sought by the two applicants for a broadcasting licence. He argues that, in a case where applicants seek an adjournment and in the absence of very special circumstances, any court or tribunal ought to grant such an adjournment.

8. I think that there is difficulty in applying to an inquiry under the Broadcasting and Television Act, in respect of the grant of a broadcasting or television licence, the usual rules which courts apply in civil litigation involving only the interests of individual parties. There are overriding public interest aspects in relation to the grant of broadcasting and television licences: see The Queen v. Australian Broadcasting Tribunal: ex parte 2 HD Pty Limited (1979) 144 CLR 45 at p 53. However, it is true that the applicants have a particular interest in the conduct of the inquiry and it is, no doubt, generally the position that the Tribunal would be strongly influenced by the submission of the relevant applicant as to whether there ought to be an adjournment of an inquiry into its application.

9. It has to be borne in mind that, in this case, the Tribunal had already decided that the revenue inquiry should involve material common both to the television application and to the two broadcasting applications. The reasons for the revenue inquiry are, I suppose, obvious, although not all parties were persuaded that this was a useful course to take. However, it was clearly within the power of the Tribunal to decide that it would be desirable to collect relevant financial information for use in respect of all three applications. The applicant for the television licence strongly submitted that the revenue inquiry ought to proceed. Consequently the Tribunal was faced with division between the three applicants as to the proper course to be taken. It seems to me that, if one is going to give particular weight to the attitude of the licence applicants as such, the position cancels out. But, in any event, I see no reason to doubt that the Tribunal had firmly in its mind that the broadcasting applicants sought an adjournment. They were represented by counsel who put to the Tribunal matters which, in his submission, made it desirable in the interests of the applicants that there be an adjournment. It is inconceivable that the identity and role of his clients was not firmly in the mind of the members of the Tribunal.

10. The second matter referred to is the "probability" that the revenue inquiry would be not merely wasteful but futile. It was said by counsel that there is a certainty of legislative change in relation to television licensing and a high probability of legislative change in respect of radio. It seems to me that this submission may be putting the matter too highly. What is clear is that the Minister is presently minded to recommend to the Government that there should be some legislative changes in respect of television licensing and that there exists a working party actively reviewing the situatuion in relation to radio, which working party may well recommend to the Minister that changes be made in relation to broadcasting licensing. To describe the position, in relation to television licensing, as amounting to a certainty of change, seems to me to overlook the possibility that the Minister may change his mind, that Cabinet may take a different view, or that there may be opposition within Parliament itself. All that one can say is that there is a significant prospect that there will be legislative change impinging upon the Canberra licences. How significantly they will impinge, in the sense of how much of the present inquiries' work would be wasted, depends upon the actual decisions which are made as to the terms of any new legislation and the ultimate recommendations of the Tribunal in relation to these particular applications. A similar comment can, I think, be made in regard to new legislation affecting broadcasting licences, except that in this case there is not yet even a ministerial commitment to change. It is, I think obvious that, if there is legislative change, some of the work which has then been done may be wasted. But it is also clear that the Tribunal had that possibility in mind. Mr Armstrong emphasized the matter of waste and inconvenience, whichever course is taken, in his reasons for refusing the adjournment.

11. Then, it is said that the Tribunal failed to take into account the fact that it could not further proceed with the television inquiry before February or March. As I have already indicated, this was obviously a matter which ought to have been given consideration in attributing weight to the various submissions which were made; but I cannot conclude that the Tribunal failed to take into account the limitations upon its time. Mr Armstrong expressly referred to the fact that the Tribunal would not be able to proceed to a separate television inquiry before February or March and it appears to be clear that it was common ground during the argument on the question of adjournment that the Tribunal was facing that difficulty.

12. Finally, in regard to this ground, it is said that the Tribunal failed to take into account the prejudice that the broadcasting applicants would suffer if forced to proceed, that is the cost of proceeding. That cost has been quantified in affidavits filed on behalf of the applicants in these proceedings. The Tribunal did not have the benefit of those figures. But it must have been obvious to the members of the Tribunal that a considerable daily expenditure was involved in the continuation of the hearing and, indeed, the Tribunal's reference to inconvenience and waste shows that this was in its mind. I think that this submission really goes to the weight which ought to have been given to that factor; a matter which, as I have said, is not for my consideration.

13. The final ground relied upon by counsel for the applicants arises under s. 5(2)(g) of the Administrative Decisions (Judicial Review) Act. Counsel argues that the decision which was reached was a decision so unreasonable that no reasonable person could have so exercised the power.

14. It is, I think, necessary to bear in mind the distinction between a legally justifiable decision and a sound or wise decision. There will be cases in which a court will conclude that it would not have made the particular decision but in which it will hold that the decision is not so unreasonable as to be invalid on this ground: see Parramatta City Council v. Pestell (1972) 128 CLR 305 especially per Menzies J. at p 323. It is useful also to bear in mind the comment made by Lord Hailsham L.C. in Re W.(An Infant)(1971) AC 682 at p 700:
    
    

"Not every reasonable exercise of judgment is right and not every mistaken exercise of judgment is unreasonable. There is a band of decisions within which no court should seek to replace the individual's judgment with his own."

1. It seems to me that this comment would apply to the present case if, which I have not, I had come to the view that, on balance, and if I were in the position of the Tribunal, I would have granted the adjournment. The Tribunal is a specialized body having knowledge of the broadcasting and television industry and of its own commitments. The Tribunal took into account the matters which it ought to have taken into account and it is not possible to say that the attribution of weight to those factors was so unreasonable as to attract the intervention of the court on the ground provided for in s. 5(2)(g). The Tribunal was entitled to take the view that, if the application for adjournment succeeded, there would be an undesirable loss of time in finalizing the applications, that there would be - at least to some extent - an otherwise avoidable cost of revision of material, and that there would be costs related to the aborted hearing over the two weeks set aside in October. In the presence of those factors, I do not think that it can be said that the decision to refuse the adjournment was so bereft of rationality as to attract invalidity under para. (g). None of the grounds are made out. The application ought to be dismissed.