GB Radio (Australia) Pty Ltd and Australian Communications Authority and Marchant - [2001] AATA 75

DECISION AND REASONS FOR DECISION [2001] AATA 75

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1999/906

GENERAL ADMINISTRATIVE DIVISION          )
           Re      GB RADIO (AUSTRALIA) PTY LIMITED
  Applicant
           And    AUSTRALIAN COMMUNICATIONS AUTHORITY
  Respondent
  And          PIETER MARCHANT

Party Joined

DECISION

Tribunal Mr J. Handley, Senior Member

Date25 January 2001
PlaceMelbourne

Decision      1. It is decided that the respondent made decisions pursuant to s.285(l),(ma) & (o) of the Radio Communications Act 1992. 2. These decisions are reviewable by the Administrative Appeals Tribunal. 3.    The application shall be listed for pre-hearing conference.
  ........ Signed Mr J. Handley .......
  Senior Member
CATCHWORDS
Radio communications : Whether any decisions made by respondent – jurisdiction of AAT to review – whether 're-issue' amounts to cancellation or refusal to transfer – decisions identified.
Words & Phrases - 'licence'; 'cancellation'.
Radio Communications Act 1992

REASONS FOR DECISION

25 January 2001 Mr J. Handley, Senior Member

This decision is concerned with whether the Tribunal has jurisdiction to review a decision made by the respondent.
Unfortunately the relationship between the parties was so belligerent that much time was occupied hearing submissions attempting to identify the actual decision made and, subject to that finding, whether it was reviewable under the Radio Communications Act 1992.
The facts may be briefly summarised as follows-
On 22 January 1996, Spectrum Management Agency issued an "apparatus licence" for a narrow band area service operating from Bayswater in Victoria. (Little was heard about the identity of "Spectrum Management Agency" however it appears to be a Government corporation responsible for the regulation and issue of radio licences. Nothing turns on this issue). The apparatus licence was numbered 1130395 and was issued with effect from 23 January 1996. Its date of expiry was 15 January 1997. It was issued to a licensee described as "P Marchant GB Radio" (T-28). Thereafter a number of additional licences were issued either to "Pieter Marchant" or "P Marchant, trading as GB Radio" (T-53, p.103-105). On 21 May 1998 the licences were consolidated under a customer number in the name of "Pieter Marchant" (T-55). This was apparently undertaken at the request of Mr Marchant (T-49).
Eventually an entity was incorporated known as "GB Radio" (Australia) Pty Limited. The date of incorporation is not known, however on 22 October 1998 the persons Kerry Phillip Grills, Pieter Cecil Maria Marchant and Roger Thomas were appointed Directors (T-57). A minute recording a meeting of the officers of the corporation GB Radio (Australia) Pty Limited, found at T-58 records Mr Grills as being the Secretary of the corporation and both he, Mr Marchant and Mr Thomas as being the Directors.
The genesis of this dispute apparently commenced on 16 November 1998. On that date (T-59) Mr Marchant signed a letter bearing GB Radio (Australia) Pty Limited letterhead to "Mick Owens" at the "ACA" (Australian Communications Authority) referring to 5 licence numbers, and in the following terms-
"As can be seen from the above header, GB Radio (Australia) is now a fully registered "P/L" Company.
It is sensible for the abovementioned licences to now be transferred from their temporary ownership, in my personal name, to the Company name.
I would appreciate the necessary amendments being made as soon as possible and new licences issued in the name of GB Radio (Australia)".

A date stamp of the Australian Communication Authority records that letter as having been received on 18 November 1998.
On 18 November 1998 the Australian Communications Authority under the hand of Michael Owens, wrote to Mr Marchant at G B Radio (Australia) Pty Limited (T-60) in the following terms.
"Dear Mr Marchant
TRANSFER OF LICENCES
I refer to your letter of 16 November 1998 advising that you have registered your company GB Radio (Australia) P/L and would like all licences in your name transferred to the new company.
This transfer would normally attract a fee of $30 per licence however, as you are just transferring them to your own company I have waived this requirement. A copy of each of your licences is attached".

On 10 June 1999, Mr Marchant wrote to Keith Clemmo, at the Australian Communications Authority (T-61). In that letter Mr Marchant alleges that he "under duress" transferred the licences and whilst acknowledging that the letter of 16 November was forwarded on GB Radio (Australia) Pty Limited letterhead "no official ACA transfer papers were signed or forwarded, nor have they been since". Mr Marchant records in the letter, that both Mr Grills and Mr Thomas "attempted to remove me as a Director on many occasions eventually succeeding on 12 April 1999", that they "now refuse to communicate with me" and that he (Mr Marchant) had "laid complaints with the Australian Securities and Investments Commission".
Mr Marchant concludes
"my only option therefore is to seek opinion and assistance from the ACA regarding the legalities in which the licences were transferred. As stated above I have not signed any "official" transfer document and if this is a requirement in order to transfer said licences, my letter of 16 November is in effect no more than a request, not a legal transfer. I would therefore request that the abovementioned licences be immediately transferred back into my personal name".
On 25 June 1999 (T-67) a letter was forwarded to Mr Marchant by Arthur Brunton, described as the OIC licensing, Customer Access Team" of the Australian Communications Authority. The letter refers to Mr Marchants communication of 10 June where it was understood that Mr Marchant was "seeking re-examination of a request that you had lodged with the authority on 16 November 1998 for transfer of the undermentioned radio communications apparatus licences from yourself to GB Radio (Australia) Pty Limited …."
Mr Brunton then records-
"An examination of that request revealed that section 131AA of the Radiocommunications Act 1992 had not been complied with in that instance as an approved transfer form completed by the parties involved in the transfer had not been lodged with this authority".
Mr Brunton then records s.131AA, he refers to the absence of transfer fees which "had not been tendered" and also records that a "mistake was made in registering, in accordance with s.148(d) of the Radio & Communications Act".
The letter concludes-
"This means that information in the Register is incorrect. The Register cannot be considered as correct if information in it is based on a wrong entry or wrong entries by the ACA and are not supported by a valid decision. Therefore in accordance with the provisions of s.153(1) and s.153(2)(a) of the Radiocommunications Act 1992 ……. action has been taken to re-instate you as the licensee of the abovementioned licences".
Enclosed are the abovementioned licences showing you as the licence holder.
The authority has also written to GB Radio (Australia) Pty Ltd to advise that organisation of the action taken".
T-66 records duplicates of the apparatus licences issued to Mr Marchant either in his own name or to "Pieter CM Marchant trading as GB Radio". Those licences were issued on 25 June 1999 (the date of the letter of Mr Brunton). The dates of effect of the licences are variously recorded as either 17 February 1998, 1 June 1997, 30 April 1997 and 30 January 1999.
On 25 June 1999 Mr Brunton also wrote to Mr Grills and Mr Thomas as Directors of GB Radio (Australia) Pty Limited in terms similar to the letter of the same date that was written to Mr Marchant. However the letter to Mr Grills and Mr Thomas concludes-
"In re-instating Mr Marchant as the licensee of these radio communications apparatus licences, I am required to advise you that you have the right to seek reconsideration with the ACA within 28 days of the date of this letter. If you are still dissatisfied, you have the right to apply to the Administrative Appeals Tribunal or the Commonwealth Ombudsman for a review of the original decision".
On 7 July 1999 Mr Grills wrote to Mr Brunton on GB Radio (Australia) Pty Limited letterhead, referring to the letter of 25 June. It would appear that the letter was both a protest at the decision made by the respondent and a request for reconsideration. The letter is found at T-69 and had a number of documents attached to it in support of the request then made to "restore the registrations forthwith (p.156). The letter also requests a "full explanation of your reasons" and it also foreshadows that "simultaneous representations (will be made) to the Administrative Appeals Tribunal and the Commonwealth Ombudsman to ensure that GB Radio continues on air with its programming".
On 19 July 1999 Mr Brunton replied to the letter from Mr Grills. Whilst he summarised the history of the applications made by Mr Marchant to the ACA to consolidate licences under a "single client record" he concluded-
"As pointed out in my response to you on 25 June 1999 section 131AA of the Radio Communications Act 1992 requires any request for transfer of radio communication apparatus licences to be accompanied by a duly completed transfer form and requisite transfer fees. Therefore in the absence of such a completed form signed by Mr Marchant as the current licensee and a representative of GB Radio (Australia) Pty Limited as the proposed licensee and payment of appropriate transfer fees, the Australian Communications Authority had erred in November 1998 in effecting transfer of licence numbers 1130395 and 1130396 from Mr Pieter Marchant trading as GB Radio to GB Radio (Australia) Pty Limited.
The ACA is also responsible for ensuring that the radio communications Register which contains details of radio communications stations and services and which may be accessed by the Australian Public reflects accurate information. In the circumstances the ACA was duty bound under s.153 of the Radio Communications Act 1992 to correct the information contained therein".
On 6 August 1999, solicitors for GB Radio (Australia) Pty Limited wrote to Mr Brunton again protesting at the decision made and making submissions as to the alleged error of the decision that was made. (T-78). On 19 August Mr Peter Young, Area Manager/Victoria wrote to the applicant's solicitors (T-79) in reply. Mr Young recorded "after consulting with the ACA Legal Group", that irrespective of the intent of either Mr Marchant or GB Radio (Australia) Pty Limited there had not been any "formal application signed by both parties" to transfer licences and "after recognising that there was a mistake in regard to sections 131AA and s.131AB of the Act and that the Register was in error, the ACA exercised its discretion under s.153(2)(a) to correct the Register".
Mr Young added-
"It should be noted that a decision under s.153(2)(a) which is made on the ACA's own initiative is not in section 285 of the Act as a reviewable decision by the Administrative Appeals Tribunal (AAT) – only a decision to refuse to correct the register is in section 285".

The Legislation

As recorded earlier the relevant legislation is the Radio Communications Act 1992.
For the purposes of this application the following sections are recorded-
"S.131AA Applications for transfer of apparatus licences
(1) Subject to section 131AC, a licensee of an apparatus licence may, at any time before the licence is due to expire, apply in writing to the ACA for the licence to be transferred to another person.
(2) The application must be in a form approved by the ACA and must be signed by both the licensee and the proposed transferee.
(3) The ACA may approve different forms for transfer of different types of apparatus licence.
(4) An NBS transmitter licence cannot be transferred to any person other than:
(a) the Australian Broadcasting Corporation; or
(b) the Special Broadcasting Service Corporation; or
(c) the Commonwealth".
"S.131AB Transfer of apparatus licences
(1) Subject to section 131AC, when an application is made, the ACA may transfer the licence into the name of the transferee.
(2) In deciding whether to transfer the licence, the ACA:
(a) except in the case of a licence issued under section 100B-must have regard to the same matters to which it must have regard under subsections 100(4) and (6) in deciding whether to issue such a licence; and
(b) except in the case of a licence issued under section 100B–may have regard to the same matters to which it may have regard under subsection 100(5) in deciding whether to issue such a licence; and
(c) in the case of a licence issued under section 100B-must have regard to the scheme in force under clause 19 of Schedule 4 to the Broadcasting Services Act 1992.

The transferred licence:

(a) subject to Division 6, continues in force until the end of the period for which the licence is in force when issued to the initial licensee; and
(b) subject to section 111, continues on the same condition as those which applied immediately before the transfer."

"S.148 Updating the Register to take variations etc. of apparatus licences into account
The ACA must, as soon as practicable, make the changes to the information in the Register about an apparatus licence that the ACA considers are necessary or convenient in order to take into account:
(a) any variation of the licence under section 111; or
(b) any suspension of the licence under section 126; or
(c) any cancellation of the licence under section 128, or any cancellation of the licence that, under section 307, is taken to have occurred on acceptance of a surrender of the licence; or
(d) any transfer of the licence under section 131AB."

"S.153(1) The ACA may, at any time, correct information in the Register."
"S.153(2) The correction may be made:
(a) in any case-on the ACA's own initiative; or
(b) if the information is about a spectrum licence or an apparatus licence – on the application of the licensee or a person authorised by the licensee to operate radiocommunications devices under the licence."

"S.285 Decisions that may be subject to reconsideration by the ACA
An application may be made to the ACA for reconsideration of any of the following decisions:
(a) variation of a spectrum licence under section 73 or 87 or paragraph 92(2)(b);
(b) suspension of a spectrum licence under section 75;
(c) cancellation of a spectrum licence under section 77 or 87;
(d) change in the core conditions of a spectrum licence on its re-issue under section 82;
"(e) refusal to issue an apparatus licence under section 100;
(ea) refusal to issue a transmitter licence under section 101A;
(f) inclusion of conditions in an apparatus licence under paragraph 107(1)(g), 108A(1)(f) or 109(1)(f);
(g) a decision under section 111 concerning the conditions of an apparatus licence;
(h) directions under subsection 116(1) to revoke an authorisation under section 114;
(i) refusal to issue a certificate of proficiency under section 121;
(j) cancellation of a certificate of proficiency under section 124;
(k) suspension of an apparatus licence under section 126;
(l) cancellation of an apparatus licence under section 128;
(m) refusal to renew an apparatus licence, or renewal of an apparatus licence with different conditions, under section 130;
(ma) refusal to transfer an apparatus licence under section 131AB;
(n) refusal to include in the Register under section 145 details of a radiocommunications transmitter;
(o) refusal to correct the Register under section 153;
(p) refusal to issue a permit under section 167;
(q) a decision under section 168 about the conditions of a permit;
(qa) giving a notice under subsection 169(6);
(r) cancellation of a permit under section 171;
(s) refusal to give permission under section 174 to supply a non-standing device;
(t) refusal to give permission under subsection 193(1) or 195(1) to use a transmitter;
(u) directions under section 212 in relation to the settlement of an interference dispute;
(v) refusal to give to a person an accreditation under section 263;
(w) withdrawal of a person's accreditation under section 264;
(x) making of a pre-acquisition declaration under Part I of the Schedule."

Submissions

Usually, the parties in dispute are aware of the decision over which it is alleged that there is an absence of jurisdiction. This is not a usual application. Despite the respondent having lodged three written submissions as to jurisdiction prior to the commencement of the jurisdiction hearing, counsel for the respondent, after the applicant's counsel had commenced his oral submissions, indicated that the three previous submissions should be "ignored". She wished to raise new issues in her submissions. In those circumstances and because those submissions were not known to the applicant or the party joined, I directed that the respondent deliver submissions as to jurisdiction before the applicant. The submissions ultimately put by counsel were argued "in the alternative" because the decision sought to be reviewed and therefore attracting jurisdiction – if at all – was not known.
Ms Davies who appeared on behalf of the respondent, submitted that if the application by the applicant was to challenge the decision of the respondent to refuse to correct the Register that the Tribunal would have jurisdiction. In the alternative if it was the case of the applicant that the decision sought to be reviewed was the re-issue the licences into the name of Mr Marchant that a decision of that type would be beyond the jurisdiction of the Tribunal.
It was submitted that the Register
"confers no rights, duties, obligations, authority on a licensee to operate anything. It is the licence itself, which confers the authority to operate the radiocommunication devices, the subject of the licences. The Act itself deals with separate provisions in relation to the operation of the licence and in relation to the establishment and maintaining of a Register, by the authority, which records the particulars of the licence that the authority has issued" (Transcript p.10).
Ms Davies, who appeared on behalf of the respondent, submitted that the Register is no more than a
"record of what has been issued. It confers no substantive rights on the parties. Now, if the sole issue before this Tribunal for review is whether or not what should be specified by the authority in the Register, having regard to the licences – the particulars of the licence have been issued, that is a matter in respect of which the Tribunal has jurisdiction. In my submission it goes to the underlying dispute as to whether or not the Authority ought to have, and was able to issue the licences – re-issue the licences in the name of Pieter Marchant. That is not a decision which is reviewable by this Tribunal because that goes to the heart of the question of whether or not licences that were issued to Pieter Marchant on 25 June 1999 were validly effected".
In support of these contentions Ms Davies argued that sections 5, 96 and 97 empower the respondent to issue licences. A licensee then has rights conferred to operate radiocommunication transmitters of a specified kind. She submitted that it is the licence which confers rights, however the Register – by reference to section 143 and 147 of the Act is no more than an "administrative compilation" of the particulars of a licence that has been issued.
In response to the applicant's pleading in the application for review to this Tribunal where the "Decision" sought to be reviewed was recorded as the "alteration of the radio communications Register, changing the name of the licencee from the applicant to Pieter Marchant," Ms Davies submitted that section 131AA of the Act had not been followed because there had not been an approved transfer lodged with the respondent, in a form approved by the respondent, which was signed by the licencee and the transferee, accompanied by transfer fees. With respect to s.148(d) of the Act, Ms Davies submitted that the respondent was required "as soon as practicable" to make changes to the Register. These latter issues were raised by her to highlight the distinction between the issue of licences conferring rights and the maintenance of the Register.

By reference to correspondence issued by the applicant or its solicitors (T-69) Ms Davies said that the decision which apparently was sought to be reviewed by the applicant was the transfer of the licences out of the name of the applicant into the name of Mr Marchant. She said this was the decision that the applicant apparently seeks to review as evidenced by part of the letter at T-69, requesting the respondent to "correctly adjust the Register to reflect GB Radio Australia Pty Limited as the licensed holders".
In conclusion it was submitted, that even if the decision sought to be reviewed by the applicant was found to be the decision to refuse to correct the Register, it was arguable that the applicant had no standing under s.153 because it was not the licensee (the licences having been re-issued to Mr Marchant).
Mr Schlicht, Counsel for the applicant, submitted that the only decision the respondent acknowledged that it made (prior to the date of this hearing) was the decision to correct the Register (page 152 of the T-documents). This "decision" was referred to by the respondent's representative in a letter to the applicant's directors on 25 June 1999. Mr Schlicht submitted that it was not until the hearing that the respondent acknowledged that another decision had been made, namely the re-issue of licences.
He submitted that the activity of the respondent could be properly characterised as having re-issued the licences to Mr Marchant and then necessarily having to correct the Register. He submitted that the tenor of the respondent's submissions is that any review of the decision to correct the Register prohibits review of whether the licences should be held by the applicant or by Mr Marchant. He said the Register had been "corrected" and the reasons for doing so need to be investigated and that there is jurisdiction to do so.
Mr Schlicht rejected the submission that the applicant had no standing to contest the decision to correct the Register because at June 1999 it was a licensee and held licence number 1130396 which was issued in the name of GB Radio (Australia) Pty Limited on 18 January 1999. He also noted that that licence was not part of the T-documents and enquired why the respondent had not made it available as part of the pre-hearing documents.
With respect to the substantial argument of the respondent that the Tribunal had no jurisdiction to review the decision to re-issue the licences to Mr Marchant, Mr Schlicht submitted that there had not been a "re-issue" to Mr Marchant, but in fact had been a "cancellation" of the licences that were previously held by GB Radio Australia Pty Limited. He submitted that s.285 permits review of a decision to cancel a licence. He said that the use of the word "re-issue" by the respondent was no more than a semantic distinction, when in fact what actually happened was the cancellation of the licences that were held by his client and the issue of licences to Mr Marchant.
Mr Schlicht took issue with the reliance by the respondent on the applicant's pleading in the application for review. He said the only decision that the respondent communicated that it had made was the correction of the Register. He submitted therefore that it was wrong for the respondent to take comfort in the applicant's failure to seek review of a decision to re-issue or cancel licences because that decision had never been communicated by the respondent to the applicant as ever having been made.
He submitted that the actions on the part of the respondent by purporting to correct mistakes that it had made in the transfer initially from Mr Marchant to the applicant – by "re-issuing" the licences to Mr Marchant and by relying on the absence of a transfer form signed by the Directors and the payment of fees – amounted to the "refusal to transfer the licences to the applicant, which was also a decision reviewable under s.285(ma)".
Mr Schlicht submitted that the request by Mr Marchant in November 1998 to transfer the licences into the name of the applicant was done in his capacity as a director of the applicant and upon the applicant's own letterhead. He said the respondent decided not to impose transfer fees and the decision ultimately made by the respondent in July 1999 was effectively a refusal to transfer (retrospective to) November 1998.
Mr Strang, who appeared as counsel on behalf of Mr Marchant, the party joined, submitted that a proper characterisation of the issue of licences to the applicant in November 1998 should be seen as a "nullity" because there had not been compliance with s.131AA and s.131AB.
He also submitted that the Tribunal was without jurisdiction because there had not been any requests for reconsideration under s.289(ii) of the Act.
In reply Ms Davies submitted that the characterisation by Mr Schlicht of the re-issue of licences as in fact being a cancellation and therefore conferring jurisdiction had no merit because only cancellations under s.128 or a refusal to transfer under s.131AB are capable of review. She said no decisions were made under either of those sections.
With respect to the licence issued in January 1999 to the applicant, Ms Davies said that she specifically did not address that in her opening submissions because in her submissions the arguments as to jurisdiction concern the conduct of the respondent at June 1999 and not the status of a licence at January 1999. She said that in any event that licence has no status or relevance to these proceedings.
In order to highlight the distinction that should be drawn between the rights attached to issue of licences and the material contained in the Register, Ms Davies submitted that even if the respondent had been in error in cancelling the licences, the applicant's rights under the legislation would be confined, at the AAT, to review of the decision to correct the register. Any rights that the applicant might wish to exercise with respect to re-issue of licences would have to be exercised elsewhere.
Conclusion & Reasons For Decision
This is an extraordinary application.
The respondent asserts that the applicant has no jurisdiction because fees were not paid when the licences were transferred from the name of Mr Marchant into the name of the applicant. The respondent however voluntarily waived fees. The respondent also asserts that a "form approved by the ACA" was not signed by the licensee and the proposed transferee, yet it did not seek a transfer form nor did Mr Marchant provide it. Whilst at the hearing Ms Davies conceded that a decision under s.285(o), being a refusal to correct the register under s.153 is reviewable by the AAT, she also submitted that it was arguable that the applicant's had no standing to make such an application because they were not licensees. This prohibition apparently was not in the mind of Mr Brunton when he wrote to the applicant on 25 June 1999 (T-68) where in addition to reciting the decision as being a correction to the Register he advised the applicant's that if they remained dissatisfied following reconsideration they "have the right to apply to the Administrative Appeals Tribunal …. for a review of the original decision". The respondent reinstated Mr Marchant as the licensee without giving any notice to the applicant of his application or its intention to transfer. After the transfer was completed, it notified the applicant of what it had done and purported to advise the applicant of its rights. Prior to the hearing of the jurisdiction argument the respondent filed three written submissions in support of its contention that there was no decision capable of review. Approximately 10 minutes after Mr Schlicht had commenced his submissions in support of the applicant's case, Ms Davies rose to indicate that the respondent proposed to abandon all its previous written submissions and that she would make new submissions on behalf of the respondent. She submitted that the previous submissions should be "ignored". Notice – verbal or in writing – was not given to the other parties or the Tribunal of the new submissions.
I am not aware whether the respondent is aware of the Model Litigant Policy issued by the Attorney General. If it is, apparently it has chosen to take no heed of it. If it is not aware of it, it would be in its interests to become acquainted with it.
There is no doubt – as was properly conceded by Ms Davies – that this Tribunal does have a jurisdiction to review a decision under s.285(a) of the Act to refuse to correct the register under s.153. I am satisfied that the letter of the applicant of 7 July 1999 T-69 amounts to a request for reconsideration. The refusal to correct the register was communicated in the respondent's letters of 25 June 1999 and 19 July. Mr Young specifically acknowledged that only a decision to refuse correction was reviewable (para 18). Ms Davies did not rely on any section or other authority to support her contention that it was "arguable" that the applicant's did not have a power to challenge a decision of this type because they were not licensees. That is to say having had their licences taken off them, and issued to Mr Marchant, they were not "licensees". I can find nothing in either s.128 or s.153 or s.285 or at all, which would support her contentions.
It follows therefore that I am satisfied that this Tribunal does have jurisdiction with respect to the decision made by the respondent to refuse to correct the register. That was a decision which was made by the respondent and I am also satisfied that the applicant, to whom the relevant licences were granted, has standing to review that decision.
Another issue which emerged during the jurisdiction argument was whether there was any other decision made by the respondent affecting the applicant and the party joined which was capable of review.
Ms Davies described the act of re-instating Mr Marchant as the licensee in June 1999 as a "re-issue" of the licences to him. She said that a decision to "re-issue" licences is not capable of review under s.285 of the Act.
With respect I can find no reference in the Act to the term "re-issue" except at s.285(d) which is subject to the operation of s.82. The circumstances contemplated by those two sections do not apply in the present case.
In the present application, Mr Marchant, at the time that he was a director of GB Radio Australia Pty Limited, applied on the corporations letterhead to have licences transferred from him to the corporation. Later he complained to the respondent of certain alleged conduct on the part of the other two directors of the applicant. He also requested that the licences be transferred back into his name. The respondent did so. Later it told the applicant of what it had done.
'Licence' is defined at s.5 of the Act as-
"'licence' means a spectrum licence, an apparatus licence or a class of licence".
'Licensee' is also defined at s.5 as-
"'licensee' means-
a) ….
b) in relation to an apparatus licence – the person to whom the licence was issued;
and in Part 2 of the Schedule includes the person from whom the spectrum licence in question or the part of the spectrum licence in question was resumed".
The definition of 'licence' in s.5 is of little assistance in comprehending what it actually is. Section 99 and section 100 is of some assistance. For my part I am satisfied that a 'licence' is a permission or authority or right given by the respondent to do what is permitted by s.100, subject to any specified conditions. I am also satisfied that it is nothing without a person to whom it is issued and to whom the authority permission and right is given. As Ms Davies submitted, and with which I agree, a licence 'confers rights' (para 25 & 26). By inserting Mr Marchant in the Register as the proprietor of these licences, the permission, authority and rights of the applicant under and by these licences were cancelled. Put another way, the licences granted to the applicant were cancelled. To describe the re-instating of Mr Marchant as a 're-issue' and not a cancellation of the applicant's 'licence' is in my view erroneous. A juxtaposition of the above sections beckons this conclusion. I am also satisfied that there has been a 'cancellation' as that word is found within s.285(l). It is not defined in the Act, but its ordinary everyday meaning of 'striking out' or 'to make void' or 'to annul' or 'become invalid' clearly describes what has occurred in the present case insofar as the authority, permission and rights of the applicant to operate the 'licence' are concerned.
I am therefore satisfied that there has been a cancellation of an apparatus licence per s.285(l). I am also satisfied that the letters from the respondent to the applicant notifying that it registered Mr Marchant as the licensee amount to a 'notice' within the meaning of s.128(1) and (2).
Another interpretation (either additionally or in the alternative) which could be placed upon the respondent's act of "re-issue" of licences to Mr Marchant was a refusal to transfer pursuant to s.285(ma).
The applicant requested (T-69) that the respondent "correctly adjusts the register to reflect GB Radio Australia Pty Limited as the licensed holders". This request was made after it was learnt that the respondent had transferred the licences to Mr Marchant. By requesting that the register be adjusted to "reflect GB Radio Australia Pty Limited as the license holders", and the subsequent refusal on the part of the respondent to accede to that request, it is implicit that the respondent has refused to transfer the licence pursuant to s.285(ma). If the Register is an 'administrative compilation' of licence particulars (para 25), the respondent's act of continuing to register Mr Marchant as the licensee, and not the applicant, amounts to a refusal by it to transfer the licences to the applicant having initially transferred the licences to Mr Marchant, the decision which has given rise to those proceedings. That is a decision capable of review.
For the reasons given above I am satisfied that this Tribunal does have jurisdiction to review decisions made by the respondent. I direct that the application be listed for a pre-hearing conference before a conference registrar.
I certify that the 56 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member
Signed:         ....Carolyn Irons ..........................................
  Secretary
Date/s of Hearing  2 November 2000
Date of Decision  25 January 2001
Counsel for the Applicant        Anthony Schlicht
Solicitor for the Applicant
Counsel for the Respondent    Jenny Davies
Solicitor for the Respondent
Counsel for Party Joined         Malcolm Strang