Northern Rivers Television Ltd v Minister for Transport & Communications

Re: NORTHERN RIVERS TELEVISION LIMITED and DARLING DOWNS TV LTD
And: MINISTER FOR TRANSPORT AND COMMUNICATIONS; AUSTRALIAN BROADCASTING
TRIBUNAL; QINTEX TELEVISION LIMITED; PRIME TELEVISION (SOUTHERN) PTY LTD and
RIVERINA AND NORTH EAST VICTORIA TV PTY LTD
No. V G40 of 1990
FED No. 240
Practice and Procedure - Broadcasting Law - Jurisdiction - Statutory
Interpretation

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Hill J.(1)

CATCHWORDS

Practice and Procedure - Strike-out application - discussion of principles.

Broadcasting Law - Declaration claimed that indicative plan published by Minister pursuant to s.94E Broadcasting Act 1942 void - injunction sought to prevent implementation of indicative plan - whether applicants' delay in bringing proceedings constituted necessary bar to relief - whether applicants' participation in statutory steps towards equalization and aggregation constituted necessary bar to relief - whether doctrine of election had any application to proceedings.

Practice and Procedure - Standing to commence proceedings - discussion of principles.

Practice and Procedure - Jurisdiction - Jurisdiction of Federal Court to grant injunctions against Australian Broadcasting Tribunal - "associated jurisdiction" - discussion of principles.

Statutory Interpretation - Whether Broadcasting Act arguably created right of action in applicants - whether action on the case for damages arguably available where statutory authority acts in breach of law - discussion of principles.

Federal Court Rules: O.20 r.2, O.11 r.16.

Broadcasting Act 1942: ss.89A, 92, 94E

Judiciary Act 1903: s.39B

Federal Court of Australia Act 1976: s.32

HEARING

SYDNEY

#DATE 30:5:1990

Counsel and Solicitors Mr L P Robberds QC and Mr L T Grey
for Applicants: instructed by Messrs Minter Ellison

Counsel and Solicitors Mr D Graham QC and Mr T Santamaria
for First Respondent: instructed by Australian Government

Solicitor

Solicitor for Mrs L Glasson of Australian
Second Respondent: Government Solicitor

Counsel and Solicitors Mr T Blackburn instructed by
for Third Respondent: Messrs Blake Dawson Waldron

Solicitors for Mr J McLachlan of Messrs Blake
Fourth Respondent: Dawson Waldron

ORDER

1. The notice of motion of the first respondent

be dismissed.

2. The notice of motion of the third respondent

be dismissed.

3. The notice of motion of the fourth respondent

be dismissed.

4. The notice of motion of the fifth respondent

be dismissed.

5. The applicants' costs of the motion be paid by

the first, third, fourth and fifth respondents.

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

JUDGE1

Before the Court are three Notices of Motion, filed respectively by the first respondent to the proceedings, the Minister for Transport and Communications, the third respondent, Qintex Television Limited (Receivers and Managers Appointed) and the fourth and fifth respondents, Prime Television (Southern) Pty Ltd and Riverina and North East Victoria T V Pty Ltd. The second respondent, the Australian Broadcasting Tribunal, appeared and submitted to any order which the Court might make other than as to costs but did not otherwise participate in the proceedings. The applicants in the proceedings (and the respondents to the motions) hold commercial television licences being NRN (Coffs Harbour), DDQ (Toowoomba) and SDQ in Warwick in the State of Queensland. In addition the first applicant holds all the shares in a company which holds the commercial television licence RTN in the Lismore, Richmond and Tweed regions of New South Wales.

The three notices were founded upon O.20 r.2 and O.11 r.16 of the Federal Court Rules. The motion of the first respondent as ultimately argued was directed at paragraphs 1 and 2 of the application and paragraphs 8 to 14 of the Statement of Claim. The motions of the remaining respondents were to strike out the whole of the application and statement of claim. It was submitted in each case that no reasonable cause of action was disclosed, that the proceedings were frivolous or vexatious, or an abuse of the process of the court and that they should be stayed or dismissed.
It is convenient to deal first with the motion of the first respondent and then second with the motions of the other respondents.
The Application, so far as it affects the First Respondent
The applicants, in paragraph 1 of their application sought a declaration that the plan published by the Minister on 26 August 1987 pursuant to the provisions of s.94E of the Broadcasting Act 1942, ("the Act") entitled "Equalization of Regional Commercial Television Indicative Plan" ("the indicative plan") that plan being prepared pursuant to the provisions of s.94B of the Act, was void. The applicants also sought, in paragraph 2 of their application an injunction restraining the Minister from continuing to implement the indicative plan or from giving any directions to or making any request of the applicants to implement the indicative plan and an implementation plan approved by the Minister pursuant to s.94N of the Act for the Approved Market, AM A referred to in the implementation plan.
The invalidity of the indicative plan was said in the statement of claim to flow from the failure of the Minister, in determining the areas that were to be approved markets for the purposes of the indicative plan, to have regard to:

(a) the object of Part IIIC of the Act namely that commercial television stations in the regional areas being approved market AM A, AM B and AM C of the plan

(i) serve larger and commercially more viable markets; and

(ii) provide television services on a competitive basis; and

(b) the desirability of an approved market being able to support, as soon as practicable and in any case no later than the aggregation completion dates for the approved market, the provision of three commercial television services to the whole of the approved market.

The particulars supplied in the statement of claim were expressed as follows:

"The Minister failed to have any regard or any adequate or proper regard to the consequences of aggregation in the approved market areas namely its effect upon

(A) the capital expenditure budgets of regional licensees;

(B) the share of advertising revenue that would be retained by the incumbent regional licensees;

(C) the ability and capacity of Telecom Australia to provide the necessary technical facilities to properly service the aggregated market;

(D) the ability of regional licences (sic) to provide adequate and comprehensive local services as required by the Act;

(E) the availability of adequately trained and qualified technical, operational, production and managerial personnel."

The statement of claim noted that the particulars were incomplete and that full particulars would be provided prior to trial and after discovery.

In due course the first respondent sought further particulars inter alia requiring the applicants to specify the relevant effect of aggregation, the consequences of that effect and the facts and matters by reason of which it was alleged that the Minister failed to have any regard or inadequate or proper regard. To this request the applicants expanded upon the matters particularised as follows:

"(a) (1) As capital expenditure is required to be and(2) substantially increased the financial position of regional licensees will be adversely affected. ...

(b) (1) a reduction in the rate of growth of and(2) advertising revenue as compared with the rate of growth prior to aggregation which would result in a diminution in the gross revenue in real terms of the regional licensees. ...

(c) (1) Insufficient time was allowed for the and(2) approval of implementation plans and the issuing of technical operating conditions both of which were required to enable Telecom to acquire and provide the necessary technical facilities when and as required by regional licensees. ...

(d) (1) As the licensees ability to provide and(2) adequate and comprehensive local services is directly related to financial capacity and the availability of funds each regional licensee adversely affected in the manner described in sub-paragraphs (a) and (b) hereof will, as a consequence, be constrained and limited in the ability to provide local services. ...

(e) (1) The number of adequately trained and(2) technical operational and managerial personnel available in Australia particularly in regional areas is limited. To operate efficiently and effectively in an aggregated area regional licensees will require additional personnel with these skills and in the absence of such personnel the operations and the quality of the service they provide will be adversely affected."

For the first respondent it was submitted that the applicants were guilty of gross delay in bringing their challenge to the indicative plan some two and a half years after it had been published. That plan, it was submitted, had elaborate statutory consequences and set in train various procedures which had been implemented inter alia in whole or in part by the applicants and the respondents. It was said that the applicants had by their acceptance of the plan acquiesced in it or waived their right to challenge the validity of the plan or had elected to accept the plan and could not now be heard to challenge its validity. Alternatively it was said that the relief sought by the applicants was discretionary and that the discretion could in the circumstances of the present facts only be exercised in one way: against the applicants. Finally, it was submitted that having regard to the particulars in clause 13 of the statement of claim as expanded by the particulars in the answer to the request for further particulars, no cause of action had been made out by the applicants.
The statutory provisions and background relevant to the applicants' claim are set out in some detail in the judgment of Gummow J. in Australian Capital Television Pty Ltd v. Minister for Transport and Communications (1989) 86 ALR 119 and need not be elaborated upon. Suffice it to say that the amendments made to the Act by the Broadcasting Amendment Act 1987 which inserted Part IIIC entitled "Equalization of Regional Commercial Television" had as their objects (as s.94 of the Act details) that -

"(a) persons living in regional areas of Australia have, as soon as practicable, access to three commercial television services; and

(b) commercial television stations in regional areas of Australia -

(i) serve larger and commercially more viable markets; and

(ii) provide television services on a competitive basis."

To attain these objects the Minister is obliged by s.94B to prepare an indicative plan which by s.94E is to be published. The matters to be specified in that plan include:

"(a) the licences that are to be regional licences ...

(b) the areas that are to be approved markets ...

(c) the area that is to be the aggregation area for each licence that is to be in an approved market;

(d) the regional licences that are to be eligible for consolidation with one another..."

Each area that is an approved market is to consist of the combined service areas of two or more regional licences. The aggregation area of a licence in an approved market may consist of the whole or a part of the approved market: s.94D(1). In determining aggregation areas of licences in an approved market the Minister is directed to ensure that the aggregation areas will enable the provision of three commercial television services to the whole of the approved market: s.94D(2).
Once the indicative plan is published, each licensee in an approved market is required within 28 days to elect by notice to the Minister whether it wishes either to proceed immediately towards aggregation in the market or to provide multi-channel services in the licensee's existing service area before proceeding towards aggregation in the approved market. Failure to give that notice results in an election of the former course: s.94G(4). Thereafter the Minister is required to give licensees in each approved market notice in writing inter alia requiring the licensee to submit to the Minister an implementation plan in respect of the licence before three months from the date the licensee is given notice: s.94J. The implementation plan is to contain certain details stipulated in s.94L including, inter alia, timetables for the provision of multi-channel services or the extension of services into the aggregation area before what is referred to as the aggregation completion date. The Minister is then required to determine whether to approve the implementation plan.
An affidavit of Mr Colin Knowles, Assistant Secretary of the Station Planning Branch of the Communications Operations Division of the Department of Transport and Communications was read without objection by the first respondent. In that affidavit Mr Knowles outlined the steps that had been taken pursuant to the legislation by licensees since publication of the plan. These include the elections of licensees (s.94G) including the applicants, applications to consolidate licences under s.94ZC(1) and (2) of the Act, the giving of notices under s.94J, the granting of consolidated licences, the lodgement of implementation plans by licensees including the applicants, and approvals and disapprovals of implementation plans. From this affidavit, the detail of which it is unnecessary to set out, it can be seen that equalization commenced in approved market C (southern New South Wales) on 31 March 1989 when various transmitters commenced operation; consultation meetings were held in respect of the development of technical specifications for approved markets A (Queensland), B (northern New South Wales) and D (Victoria). In the southern New South Wales area five main national broadcasting transmitting sites and twelve translators had been or were being upgraded to accommodate equalization services at an estimated cost of $6,400,000 and all funds had been committed therefor. Licensees in that region had established two new sites and new facilities estimated to cost $750,000 and it was estimated that the total cost of equalization for the approved market C licensees was $15,000,000. In approved market A, expenditure to upgrade services which were expected to be completed before the end of 1990 was $9,900,000 of which it was estimated that $4,800,000 had been committed. In approved market A, facilities were to be established before December 1990 estimated to cost $1,800,000.
It is against the background of this evidence that the first respondent submitted that the delay of the applicants in bringing the present proceedings together with its participation in the statutory steps towards equalization and aggregation was an absolute bar to the applicants obtaining relief. The submission was put on two alternative bases. First it was submitted that to the extent that delay and acquiescence went merely to the discretion to grant declaratory or injunctive relief the delay was so great that no court in the exercise of discretion would grant the applicants relief. Alternatively it was submitted that the applicant had elected between two inconsistent rights and had chosen to proceed with its obligations under the Act and so should not now be permitted to seek to have the plan set aside.
It is of course accepted by all parties that the jurisdiction to grant declarations, like the jurisdiction to grant injunctions is discretionary: Salmar Holdings Pty Ltd v. Hornsby Shire Council (1971) 1 NSWLR 192 at 203-4. The relief sought being discretionary, the delay in commencing proceedings will be a relevant matter in the exercise of the discretion whether the relief is to be granted: Coney v. Choyce (1975) 1 WLR 422 at 435-6. From the evidence to which I have referred it is clear that in the event of a trial proceeding there would be a very powerful case for refusing to grant the relief which the applicants seek. However it should be noted, as the learned authors, Messrs Meagher, Gummow and Lehane in their book Equity Doctrines and Remedies point out, that mere delay will not normally be a defence in equity. Rather the circumstances must be such as to constitute a waiver of the rights of the applicant implied by his conduct. But, for the delay to constitute laches and operate as a defence in equity, knowledge of the relevant facts giving rise to legal rights would seem essential: Re Howlett (1949) Ch 767. The general principles applicable are sufficiently summarised in the classic statement in Lindsay Petroleum Co v. Hurd (1874) LR 5 PC 221 at 239-40:

"Now the doctrine of laches in courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as a waiver of it, or where by his conduct or neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are not material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy."

It seems to me, at the present stage of proceedings, where I have heard no evidence at all from the applicants, that it would be impossible to say that the delay and acquiescence alleged, powerful though such a consideration may be, is of such a nature that no other matter could possibly balance against it. It is obvious, for example, from what I have already said, that it may well be that the facts and matters upon which the applicants rely in their claim that the indicative plan is void are matters that have only now come to the attention of the applicant. That would be a factor that would need to be weighed against the matters to which I have already referred. The strength of the applicants' claim having regard to the evidence which is ultimately before the Court will also have relevance to the manner in which the discretion is exercised. It is for the trial judge to determine whether to grant or not grant the relief sought and to consider the relevant discretionary matters at that time. It is not for a judge entertaining a strike-out application to pre-empt the exercise of that discretion.

The argument of the first respondent based upon election is in my view quite misconceived. As Mason J. pointed out in Sargent v. ASL Developments Ltd (1974) 131 CLR 634 a distinction has to be drawn between the doctrines of election, waiver and estoppel which may apply when it is alleged that a party's words or conduct preclude him from exercising a legal right. As his Honour points out, a case of election arises where events occur which enable a person to exercise alternative but inconsistent rights. The classic case of election arises where a person has a right either to determine a contract or to insist upon its performance. The important point to make for the purposes of these proceedings is that election involves rights not obligations. To comply with the provisions of a law which may ultimately turn out to be invalid does not involve in my opinion electing to exercise an alternative right in the sense relevant to election. In any event, as the cases make clear, no election may take place unless at least there is knowledge of the facts which give rise to the existence of the right. (See Sargent per Mason J. at 656, Stephen J. at 642). While in Sargent's case there was a difference in emphasis between the judgments of Stephen J. on the one hand and Mason J. on the other, that difference is not presently significant. See too Khoury v. Government Insurance Office of NSW (1983-4) 165 CLR 622 at 633 in the joint judgment of Mason, Brennan, Deane and Dawson JJ.
Since, if the case be one of election at all, which I doubt, it would be necessary to determine the relevant facts, it cannot be said at this stage of the proceedings that the applicants' claim against the first respondent is for this reason bound to fail.
The final submission of the first respondent was that the amended statement of claim focused upon the alleged failure of the Minister to take into account the matters I have already indicated in determining the areas that are specified as being approved markets. It was said, that even if the particulars did delineate an arguable issue they did so only in respect of the specification of aggregation areas rather than approved markets. It was said that there was no necessary relationship between these two concepts.
The test to be applied in determining a strike-out application is that expressed by the High Court in General Steel Industries Inc v. Commissioner for Railways (NSW) (1964) 112 CLR 140 at 129-130 viz that before a statement of claim will be struck out it must be clearly demonstrated that the applicant's case is so obviously untenable that it cannot possibly succeed. Should on the other hand there be a real question to be determined, whether of fact or law, the statement of claim should not be struck out. As Barwick C.J. observed at 130:

"...Great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal."

It is true that at the same page his Honour also said:

"Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed."

But in so saying, in my opinion, his Honour was not countenancing a course whereby an application to strike out became, without the consent of the parties, a trial of a preliminary question of law. To read the passage as so saying would be to ignore what his Honour had earlier said about the inappropriateness of striking out a proceeding where a real question of law is involved.

Under s.94B the indicative plan is to specify the areas that are to be approved markets for the purposes of Part IIIC of the Act. In so doing the Minister is inter alia to have regard to the matters listed in s.94C which include the matters specified in the applicants' statement of claim. The Minister is obliged to have regard to the objects set out in s.94 which objects require, inter alia, that regional commercial television stations will serve larger and commercially more viable markets. Arguably the comparative used in s.94(b) requires that the Minister consider the present situation and that which would ultimately exist in the future and determine whether the future projected indicative plan by its first step of determining approved markets will result in a larger and commercially more viable market. It is arguable that, in considering this issue, the Minister would be required to take into account at least the matters referred to in paragraphs (a) and (b). In considering the question of the desirability of the approved market being able to support three competitive commercial television services it is arguably relevant that the Minister consider matters of the kind referred to in paragraphs (c), (d) and (e) of the statement of claim. So far as the supplementary particulars add anything at all, it certainly cannot be said that the applicants' case is bound to fail having regard to the particulars. I should say that I would not at this stage see the applicants as precluded from supplementing their statement of claim by further particulars, subject of course to any question of prejudice that may be caused to the first respondent.
It follows that I would not at this stage of the proceedings strike out the first two claims in the application nor paragraphs 8 to 14 of the statement of claim so far as those paragraphs affect the first respondent.
The Balance of the Statement of Claim - the Motions of the Third Fourth and Fifth Respondents
The relief sought by the applicants in paragraphs 3 to 6 of their application was in the following form:

"3. An injunction interlocutory and final restraining the second respondent from renewing the commercial television licences ATN 7 Sydney, HSV 7 Melbourne and BTQ 7 Brisbane until such time as the third respondent has prescribed interests in no more than two or more commercial television licences the aggregate of which service area population does not exceed 60% of the declared population of Australia.

4. An injunction interlocutory and final restraining the second respondent from giving written consent to Prime Television (Southern) Pty Ltd and Riverina and North East Victoria TV Pty Ltd to admit Qintex Television Limited to participate in any of the benefits of the licences or to exercise any of the powers or authorities granted by the licences held by Prime Television (Southern) Pty Ltd and Riverina and North East Victoria TV Pty Ltd.

5. A declaration that the Affiliation Agreement referred to in paragraph 15 of the Statement of Claim is void.

6. An injunction interlocutory and final restraining the third, fourth and fifth respondents from executing enforcing orotherwise performing any of the obligations imposed on them by the Affiliation Agreement and from entering into any such like agreement or agreements."

The first argument that was put by the third, fourth and fifth respondents (hereafter referred to compendiously as "the respondents") against the claims for relief sought in these paragraphs was that the applicant lacked standing to commence the proceedings. I was referred to the decisions of the High Court in Australian Conservation Foundation Inc v. The Commonwealth (1980) 146 CLR 493 and Onus v. Alcoa of Australia Ltd (1982) 149 CLR 27. In the former case Gibbs C.J. stated the principles involved in determining standing and those principles were repeated in his Honour's judgment in Onus at 35-36 in the following terms:

"A plaintiff has no standing to bring an action to prevent the violation of a public right if he has no interest in the subject matter beyond that of any other member of the public; if no private right of his is interfered with he has standing to sue only if he has a special interest in the subject matter of the action. The rule is obviously a flexible one since, as was pointed out in that case, (i.e. Australian Conservation Foundation Inc) the question what is a sufficient interest will vary according to the nature of the subject matter of the litigation."

The concept of special interest was elaborated by the then Chief Justice in Australian Conservation Foundation Inc (supra) at 530-1 in the following terms:

"I would not deny that a person might have a special interest in the preservation of a particular environment. However, an interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi. If that were not so, the rule requiring special interest would be meaningless. Any plaintiff who felt strong enough to bring an action could maintain it."

It is significant to note that in Onus the Chief Justice was critical of the issue of standing being determined in strike out proceedings. His Honour said at 38:

"It is unfortunate that the question of the appellants' standing was determined as a preliminary issue in the present case, particularly on such scanty material. To say that is of course no criticism of the learned primary judge who had to deal with Alcoa's application. The question whether a plaintiff has standing to bring an action is one that logically arises before the question whether he is entitled to succeed in the action. However, as I pointed out in Robinson v. Western Australian Museum (1977) 138 CLR 283 at 302, the court has a discretion whether or not it should determine the question whether the plaintiff has a sufficient interest to bring the proceedings before it proceeds to determine the merits of the case."

His Honour was of the view that the question could not be decided at the particular stage of the proceedings which had been reached at the time of the strike out application. The problem of making a determination of standing on an application to strike out was adverted to also by Aickin J. at 57. Brennan J. at 76 referred to the procedural discretion which a court has as to the stage at which it would dispose of an objection to standing without expressing any particular disapproval of the procedure embarked upon in Onus.

The reason why the question of standing is difficult to determine on an application to strike out is that the question of the existence of a special interest may very well depend upon matters of fact which cannot be determined until a hearing takes place. Assuming that the applicants otherwise have a cause of action I would not be prepared to say at this stage of the proceedings that the applicants have no standing to raise the matters which are really in issue between the parties.
Whether the Claims against the Second Respondent, the Australian Broadcasting Tribunal should be struck out for want of Jurisdiction
It will be recalled that the claims against the Tribunal were for injunctions restraining it from renewing the commercial television licences specified and from giving its written consent to admit Qintex Television Limited to participate in any of the benefits of the licences or to exercise any of the powers or authorities granted by the licences held by Prime Television (Southern) Pty Ltd and Riverina and North East Victoria TV Pty Ltd.
To the extent that the applicants depend upon s.39B of the Judiciary Act 1903, it is clear that the court lacks jurisdiction to dispose of the application. Section 39B confers upon this Court injunctive jurisdiction in certain proceedings against officers of the Commonwealth. However, it is plain that the Tribunal is not itself an "officer of the Commonwealth" so that reliance upon s.39B to found jurisdiction to grant the relief sought is unfounded. Cf. Businessworld Computers Pty Ltd v. Australian Telecommunications Commission, 22 April 1988 (unreported) per Gummow J. where it was held that the Australian Telecommunications Commission was not an "officer of the Commonwealth" and William Stanley Waterhouse v. Australian Broadcasting Corporation 21 October 1987 (unreported) per Wilcox J.
However, the applicants rely not only upon s.39B but also upon the provisions of s.32 of the Federal Court of Australia Act 1976 and upon the jurisdiction conferred upon the court as a consequence of the cross-vesting legislation. Section 32 of the Federal Court of Australia Act 1976 confers upon the Court an associated jurisdiction to entertain proceedings not otherwise within the Court's jurisdiction, where proceedings are brought which are within jurisdiction. The question of what constitutes an associated matter in the relevant sense was considered by the High Court in some detail in Fencott v. Muller (1982-3) 152 CLR 570 at 606-610. It suffices here to say that the test is "whether the claim under the relevant federal law is a substantial part of a controversy the whole of which would be appropriately and concurrently determined by the court vested with jurisdiction in matters arising under that law." The federal matter must be substantial or not trivial and the two claims will "so depend on common transactions and facts that they arise out of a common substratum of facts": Philip Morris Inc v. Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 512. Where the federal matter is "a completely disparate claim constituting in substance a separate proceeding" or distinct from and unrelated to the non federal matter the associated jurisdiction will not be attracted.
It is submitted that the claims for injunction against the Tribunal arise out of the matters associated with the indicative plan that brought about the affiliation agreement. Although in Fencott v. Muller (supra) at 610 Mason, Murphy, Brennan and Deane JJ. expressed the hope that objections to the jurisdiction of the court were amenable to summary disposition and although the connection between the relief sought in paragraph 3 of the application and the matters associated with the indicative plan and dealt with in paragraphs 1 and 2 of the application is not self evident, it is clear that where the question of the associated jurisdiction must depend, at least in part, upon the existence of a common substratum of facts there will often be a need to investigate the factual matrix before a determination can be made whether matters are in truth associated. The present is such a case.
The amended statement of claim pleads that the Seven Network and Prime Television (Southern) Pty Ltd have entered into an agreement referred to as "the Affiliation Agreement" for the purpose of the supply of programs by the Seven Network to Prime Television (Southern) Pty Ltd in approved market AM C as a result of which the third respondent, Qintex Television Limited, is in a position to exercise control of the operations of the licences of Prime Television (Southern) Pty Ltd with the consequence that the third respondent has a prescribed interest in the commercial television licences of Prime Television (Southern) Pty Ltd. It is further alleged that this agreement is contrary to s.89A of the Act in that the Seven Network has been admitted to participate in the benefits of and to exercise the powers or authorities granted by the licences of Prime Television (Southern) Pty Ltd without the written consent of the Tribunal. It is pleaded in paragraph 19 of the Statement of Claim that:

"Pursuant to the Indicative Plan, the Affiliation Agreement and to the provisions of Section 91 AAD of the Act the third respondent has a service area population exceeding 60% of the declared population of Australia.

PARTICULARS

The Seven Network % ATN 7 Sydney 21.57 HSV 7 Melbourne 19.94 BTQ 7 Brisbane 9.49 SAS 7 Adelaide 7.04 TVW 7 Perth 6.59 MVQ 6 Mackay 0.68 SEQ 8 Wide Bay, Maryborough 1.64 66.95 66.95 Prime Television % Southern New South Wales 6.76 6.76 73.71%"

The consequence is said to be a breach by the third respondent of s.92 of the Act in that the third respondent has a prescribed interest in two or more commercial television licences the aggregate of whose service area population exceeds 60 per cent of the declared population of Australia. In turn the consequence is then said to be that the affiliation agreement is void. It is claimed that the consequence of the indicative plan, the affiliation agreement and the commencement of an aggregated service in approved market AM C and in consequence of the service area population of the third respondent exceeding 60 per cent of the declared population of Australia, the applicants have suffered and will suffer loss or damages.
It is in this context that the amended Statement of Claim pleads in paragraph 26 that:

"The second respondent pursuant to the provisions of Section 86 of the Act is at present giving consideration to the renewal of the commercial television licences of the Seven Network's ATN 7 Sydney, HSV 7 Melbourne and BTQ 7 Brisbane in circumstances where if the second respondent renewed the licences, contrary to the provisions of Section 86AA(5) of the Act, the third respondent would be contravening Section 92 of the Act in circumstances that would constitute an offence against that section."

It can be seen that the pleading ultimately seeks to found the circumstances said to entitle the applicant to relief against the Tribunal not only in the affiliation agreement but ultimately in the indicative plan the validity of which is challenged by reference to the failure of the Minister to have regard or any adequate regard to the consequences of aggregation. While the connection of paragraphs 19 and 26 of the amended Statement of Claim with the complaint going to the validity of the indicative plan may be thought to be tenuous, I am not persuaded at this stage of the proceedings that it has been clearly demonstrated that the lack of jurisdiction of the Court is so obvious that the applicants' case against the Tribunal cannot possibly succeed. In particular it can be said that the claim to the relief in respect of the indicative plan, which is a federal matter, is a substantial part of the controversy between the parties which is not trivial and it is at least arguable that the claim against the Tribunal will arise out of a common substratum of facts which is not in the relevant sense completely disparate from the facts giving rise to the alleged invalidity of the indicative plan so as to be in substance a separate proceeding.

In my view in these circumstances the claim against the Tribunal should not at this stage be struck out but should proceed to trial.
In these circumstances the claim to jurisdiction based upon the cross-vesting legislation, which is, to say the least, tenuous need not be considered.
Whether the Broadcasting Act creates a Right in the Applicant to Damages?
The next matter raised was that the Broadcasting Act did not in fact create any right of action in the applicants. Before turning to this question it is appropriate at the risk of some repetition to set out more fully the gravamen of the matters referred to in the statement of claim upon which the applicants rely.
It is alleged in the statement of claim that the third respondent, which through subsidiary companies was the holder of various commercial television licences in Sydney, Melbourne, Brisbane, Adelaide, Perth, Mackay and Wide Bay - Maryborough - Bundaberg generally referred to as "the Seven Network", has entered into an agreement with the fourth respondent for the purpose of supply of programs by the Seven Network to the fourth respondent in the approved market AMC in consideration of a fee. This agreement which is referred to in the statement of claim as "the Affiliation Agreement" is said to bring about the result pursuant to s.89H of the Act that the third respondent is in a position to exercise control of the operations of the licensees of Prime Television in providing the services pursuant to those licences and the selection or provision of the programs to be broadcast by Prime Television pursuant to the licences. It was said to follow that pursuant to the provisions of s.89F of the Act the third respondent had a prescribed interest in the television licences of Prime Television. It was further said that by reason of the Affiliation Agreement the fourth respondent had, contrary to the provisions of s.89A of the Act, admitted the Seven Network to:

"(a) participate in the benefit of,

(b) exercise the powers or authorities granted by the licences of Prime Television without the written consent of the second respondent."

A further complaint as already noted was that pursuant to the indicative plan the affiliation agreement and the provisions of s.91AAD of the Act the third respondent had a service area population exceeding 60 per cent of the declared population of Australia and that this matter was in essence exacerbated by the affiliation agreement bringing the percentage from 66.95 per cent to 73.71 per cent with the consequence that the affiliation agreement was void.
For the respondents it was submitted that a close analysis of the Act revealed that it did not permit a right of action of the kind here postulated.
The question whether a statute confers a private remedy in circumstances where its provisions are breached and as a result a person suffers damage is essentially a question of construction of the relevant legislation to determine the statutory intention. Thorne v. Council of the Municipality of Bankstown (1954) 54 SR(NSW) 310; O'Connor v. S P Bray Ltd (1937) 56 CLR 464 at 477, 478. It was said that no such intention was to be found in the Act although the question was not argued at any length.
Irrespective of the question of construction of the relevant statutory provision it was established by Beaudesert Shire Council v. Smith (1966) 120 CLR 145 that an action on the case may be brought for damages in circumstances where a statutory authority intentionally did some act forbidden by law which inevitably caused damage. The principle, as enunciated in Beaudesert was expressed in the joint judgment at 155 of Taylor, Menzies and Owen JJ. as follows:

"There is, therefore, a solid body of authority which protects one persons's lawful activities from the deliberate, unlawful and positive acts of another. It is not, however, possible to adopt a principle wide enough to afford protection in all circumstances of loss to one person flowing from a breach of the law by another, for regard must be had to the limitations which the law has placed upon the right of a person injured by reason of another's breach of a statutory duty to recover damages for his injury. Bearing this in mind, it appears that the authorities cited do justify a proposition that, independently of trespass, negligence or nuisance but by an action for damages upon the case, a person who suffers harm or loss as the inevitable consequence of the unlawful, intentional and positive acts of another is entitled to recover damages from that other. It may be that a wider proposition could be justified, but the proposition we have stated covers this case and leads us to the conclusion that the appellant is liable to the respondents for loss occasioned by its unlawful trespass in removing gravel from the river-bed."

Subsequently in Kitano v. The Commonwealth (1973-4) 129 CLR 151 Beaudesert was distinguished by Mason J. as his Honour then was. His Honour pointed out that the existence of an intention to cause harm to an ultimate plaintiff was not necessary for liability. It was, in his Honour's view, enough to found liability "provided that the other elements are present, that the act is intentional and that its inevitable consequence is to cause loss to the plaintiff". In Kitano the plaintiff failed because it did not show that its loss was an inevitable consequence of the breach of the statute. Nor was it shown that the issue of the certificate there in consideration which was in breach of the statute was "calculated in the ordinary course of events to damage" the plaintiff and which did in fact so do. The loss was brought about by exclusion by the plaintiff's companions of the plaintiff of possession of the yacht not by the issue of the certificate.
In the course of the judgment Mason J. said at 174-5:

"It seems to me that for the plaintiff to succeed in his special action on the case he must show something more than a mere breach of the statute and consequential damage; he must show something over and above what would ground liability for breach of statutory duty if the action were available. As I see the case, he has not succeeded in showing that the act was tortious (and not merely a contravention of the statute), that its inevitable consequence was to cause damage to the plaintiff, or that there was an intention to cause harm to the plaintiff."

The judgment of Mason J. was upheld by the Full Court which did not "desire to add anything to his Honour's reasons".
As the pleadings presently stand the applicants have pleaded conduct which is alleged to breach the statute and they have pleaded loss. They have not pleaded either that the loss was an inevitable consequence of the breach or that the actions in breach were brought about by an intention to cause harm to the applicants. At best they have pleaded the fact that the applicants are in competition with the respondents from which it may perhaps be inferred that the inevitable consequence of the breach was to cause damage to the applicants. As the pleadings presently stand the applicants could not seek to maintain a case based on intentional conduct.
An applicant must plead the material facts and only the material facts upon which he relies. The purpose of pleadings being to define the issues that arise between the parties and expose to the other parties the case they have to meet, it would be essential if intentional conduct causing loss be relied upon that the fact of intentional conduct be pleaded. However an applicant must not plead matters of law or arguments or theories, or as in East West Airlines v. The Commonwealth (1983) 49 ALR 323, predictions. The question whether the applicants' loss was an inevitable consequence of the conduct in breach of statute is in my view not a matter of fact that must be pleaded. It is ultimately a conclusion of fact. Whether for clarity it would be useful to recite such a conclusion in the statement of claim and if so whether it could be objected to as involving a pleading of more than a material fact, it is not necessary to decide. I would not strike out the pleading for failure to plead inevitable consequence.
Whether the Affiliation Agreement breached the Provisions of Section 89A of the Act?
It was submitted that in any event there had been no breach by Prime Television (Southern) Pty Ltd of the provisions of s.89A of the Act as alleged.
That section provides relevantly as follows:

"(1) Subject to subsections (2), (3) and (4), the holder of a commercial licence may: ...

(b) admit another person to participate in any of the benefits of the licence or to exercise any of the powers or authorities granted by the licence;

but only with the written consent of the Tribunal.

(2) A commercial licence shall not be transferred to a person if the person would, by virtue of subsection 81AA(1), be ineligible for the grant of the licence.

(3) A person shall not be admitted to participate in any of the benefits of a commercial licence, or to exercise any of the powers or authorities granted by a commercial licence, if the person would be ineligible for the grant of the licence under subsection 81AA(1).

(4) A commercial licence shall not be transferred to a person, and a person shall not be admitted to participate in any of the benefits of a commercial licence or to exercise any of the powers or authorities granted by a commercial licence, before the end of the period of 2 years commencing on the day of commencement of the licence."

The particulars supplied, which were said to be incomplete, were as follows:

"(i) Prime Television broadcasts the major part of the Seven Network programs simultaneously.

(ii) The timing and co-ordination of Prime Television's operations are determined by the Seven Network including

(x) program start and finish times,

(y) the placement and duration of commercial breaks,

(z) the length of station breaks between programs.

(iii) Prime Television cannot feasibly change the program timing to meet local requirements.

(iv) Decisions concerning late program changes and the substitution of alternative programs are made by the Seven Network.

(v) Publicity and promotional activities in respect to the Seven Network programs restrict and diminish the ability of Prime Television to make any independent choice of programs.

(vi) On-air promotions of Prime Television programs are produced by the Seven Network.

(vii) The news service of Prime Television complies with the sets, titles, style and presentation techniques maintained by the Seven Network.

(viii) The Seven Network and Prime Television have entered into parallel agreements to provide an integrated microwave link system for program distribution and interchange and thereby restrict the ability of Prime Television to make independent arrangements.

(ix) Prime Television during the currency of the Affiliation Agreement is unable to operate and function as an independent and commercially viable broadcaster."

It is not necessary to deal in detail with this argument which was far from fully elaborated upon before me. For the respondents it was submitted that the benefits of the licence were to be confined to the ability to transmit programs (see particularly s.89D, 6B(2)(c), or to apply for re-transmission permits, see s.89DA(5) and (6) and also s.6B(2)(e)). It was said that none of the particulars supplied went to the issue of admission to participation in benefits. Rather, if anything, it was said the gravamen of the complaint really went to the exercise of powers or authorities.
For the applicants, on the other hand, it was said that the concept of benefit extended to include commercial benefits. On this view of the meaning of s.89A any agreement for the purchase by a television station of programs could be a breach of s.89A as admitting the vendor of the programs to participate in the benefits of the licence. Reference was made to s.99 of the Act, which obliges a licensee to provide programs. It was said that a sale of programs at least if for a consideration determined as a percentage of earnings was caught. It was said that on the facts pleaded the Seven Network is able to participate in benefits both because there was an extended area over which advertising for national advertisers can be beamed and because they control the programming of Prime Television (Southern) Pty Ltd.
Alternatively the applicants submitted and the respondents denied that the facts pleaded constituted an admission by Prime Television (Southern) Pty Ltd of the Seven Network to exercise the powers or authorities granted by the licence. In essence the applicants submitted that the Act requires a licensee or "empowers" or "authorises" the licensee to make judgments about programs, their scheduling and their suitability. It was said that where a licensee permits another to have powers over programming that other is exercising a power or authority granted by the licence.
To determine what is meant by the words of s.89A it is necessary to embark upon an analysis of the operation of the Act and the policy underlying it. Without assaying such a task it is not possible to give content to the expressions "benefits", "powers" or "authorities". Prima facie the first limb of s.89A(1)(b) would seem to embrace a situation where, the licence not having been transferred, an arrangement for partnership is entered into or perhaps an arrangement being less than a partnership but providing for a share of profits might suffice. The second limb is governed as well by the words "admit another person". Prima facie it would seem to encompass a case where, the licence, not having been transferred, the licensee contracts with a third person for the third person to transmit programs and in effect manage the business of the licensee. Both limbs may however range wider than I have suggested and in the absence of full argument at the trial it is inappropriate to do more than express a tentative view.
What is more significant however is that the resolution of the problem can clearly not be undertaken without a full consideration of the construction of the Act. There is a real question of law to be tried and the applicants should not be deprived of the opportunity to have their case tried by the use of an application to strike out where it cannot be said that their case is clearly untenable.
For my part, I would not feel that I could do justice to the applicants' case without full argument, to take place at the hearing where all issues could be canvassed rather than at an earlier interlocutory stage where not only was the issue not fully argued but also the splitting of issues could give rise to separate appeals and delay the ultimate resolution of the totality of disputes between the parties.
Whether the Affiliation Agreement referred to in Paragraph 15 of the Statement of Claim was void as being in breach of Section 92 of the Act?
The principles relevant to the determination of the question whether an agreement entered into in breach of a statutory provision (and I express no view as to whether the agreement does involve a breach of s.92) are discussed in the decision of the High Court in Yango Pastoral Company Pty Ltd v. First Chicago Australia Ltd (1978) 139 CLR 410 at 413-5 in the judgment of Gibbs A.C.J., at 423-6 per Mason J. and at 430-3 in the judgment of Jacobs J. The question is one of construction whether the statutory provision intends to prohibit the agreement and so render it void and unenforceable or whether it intends only that the penalty for which it provides shall be imposed if the agreement be entered into.
There are to be found in the Act a number of significant provisions which tend to support the latter view. Reference may be made, for example, to ss.92C and 92D and to ss.92N and 92P. However the question is a substantial one that requires a detailed consideration of the Act. The present application did not afford to the applicants an opportunity to present a detailed argument and in these circumstances it seems to me inappropriate to deal with it fully. I note that in the Yango Pastoral Co case, Master Allen of the Supreme Court of New South Wales was satisfied that it was reasonably arguable that the loan transaction there involved was an illegal transaction and refused a motion for summary judgment where principles analogous to those applied on a strike out application are equally applicable. He did so stating that the points of law involved in respect of one of the issues was "of such difficulty and complexity that it is appropriate that, before they are decided finally, the court have the benefit of the full legal argument which it may be expected would be presented at the trial"; see (1977) 2 NSWLR 57 at 69-70. Thereafter Sheppard J. ordered the separate determination of two questions (1977) 2 NSWLR 177, and the matter proceeded in that way to the Court of Appeal (1977) 2 NSWLR 583 and thence to the High Court. None of the judges who heard the matter in the Supreme Court or the High Court were in any doubt that the contract sued upon was not illegal but that did not in any way reflect upon the decision of Master Allen in the interlocutory proceeding.
For these reasons I would not strike out the paragraphs of the Statement of Claim dealing with the affiliation agreement.
That the Proceedings, so far as they sought Injunctive Relief against the Tribunal restraining the Renewal of the Television Licences specified and from giving Written Consent under Section 89A were Misconceived
It was submitted for the respondents that no application for consent under s.89A of the Act had been made nor would it be made so that an injunction against the giving of consent was misconceived. In these circumstances the applicants indicated that leave would be sought to amend the Statement of Claim and application. A handwritten draft of the proposed amendment to the application was then tendered.
The substance of the amendment was that the applicants would seek a declaration that the fourth respondent had admitted the third respondent to participate in the benefits of the licence held by the fourth respondent and to exercise the powers and authorities granted by the licence together with an injunction restraining the third respondent from participating in the benefits of the licence held by the fourth respondent or from exercising the powers and authorities granted by the licence without the written consent of the second respondent. Similar declarations and injunctions were intended to be sought in respect of the fifth respondent.
Subject to the amendments being reduced to proper form and any consequential amendments necessary being made to the Statement of Claim, I would give leave to the applicants to amend the application and Statement of Claim accordingly.

A further objection to the injunctive relief sought, equally applicable to the amended application for relief, was that the Tribunal had power to disregard a contravention of the Act under s.86AA(6). I note however that nothing in s.86AA(6) relates specifically to a contravention of s.89A.
It was said that the question of renewal of licences under s.86AA was a matter entrusted to the Tribunal and that the Court should not at this stage, before the Tribunal has considered an application for renewal, intervene. An injunction will not normally lie at the suit of a private person to compel observance of penal provisions of a statute except in special cases and then only when damages can be proved: Californian Theatres v. Hoyts Country Theatres Ltd (1959) SR(NSW) 188 at 191. Gibbs C.J. in Attorney General (Qld) v. T (1983) 46 ALR 275 at 277 referred to the power to grant an injunction to restrain a breach of the criminal law as being "an exceptional power", citing with approval the comments of Lord Wilberforce in Gouriet v. Union of Post Officer Workers (1978) AC 435 at 481 that such power "is one of great delicacy and is one to be used with caution".
The relief sought is by way of a quia timet injunction of which it has been said that the plaintiff has the burden of proving that there is a real probability that activities of the respondents are imminent and if performed will cause substantial damage to the applicants: Grasso v. Love (1980) VR 163. Thus it was submitted that where there remained a possibility that the Tribunal would ultimately find in a way consistent with the interests of the applicants, the applicants could not show a "real probability" in the sense used by the cases.
For the applicants it was submitted that the present was not a case of an attempt to restrain a breach of the criminal law, of which the case of Attorney General (Qld) v. T was an example but rather the applicants sought to prevent conduct which would cause them financial loss. So far as the criticisms directed at the obtaining of a quia timet injunction, the granting of such relief is ultimately a matter for the discretion of the trial judge and the question whether the basis of such an injunction is made out depends ultimately on matters of fact which must await the trial.
While there is much to be said for the view that the Court should not interfere with the Tribunal in the proper exercise of its duties, which Parliament has entrusted to the Tribunal not to the Court, these are all matters that go to the exercise by the Court of its discretion to grant injunctive relief. Whether such relief will ultimately be granted is a matter that must be left to the trial judge after the relevant facts have been ascertained.
Accordingly I reject the respondents' submissions.
Conclusion
In my view the present applications were misconceived. This is not to say that a number of the arguments advanced by the respondents were without substance as arguments of law which could be raised at the trial. But that is not the issue presently before me. It is obvious that the claims of the applicants are not without substance. The resolution of them will involve detailed argument on questions both of fact and of law. The proper time for that argument is not on an application to strike out but at the trial where all matters of fact and law can be fully canvassed. Further, the present application has resulted in some delay to the parties in the resolution of issues some of which are attended with some urgency. Had the application not been made the parties would possibly by now be close to obtaining a hearing date for that trial.
I would accordingly dismiss the notices of motion of the first respondent and the third, fourth and fifth respondents respectively and order the respondents other than the second respondent to pay the applicants' costs of the motion.

[1990] FCA 240

30 MAY 1990