Sobh and Australian Communications Authority
[2004] AATA 1154
•5 November 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1154
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2003/891
GENERAL ADMINISTRATIVE DIVISION ) Re AHMED SOBH Applicant
And
AUSTRALIAN COMMUNICATIONS AUTHORITY
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date5 November 2004
PlaceMelbourne
Decision
The Tribunal dismisses the application under review pursuant to s42A(5)(b) of the Administrative Appeals Tribunal Act 1975.
(Sgd) John Handley
Senior Member
BROADCASTING LICENCE – application to review decision to cancel apparatus licence – four Direction Hearings convened – Directions made on 5 occasions – non compliance with Directions – application to dismiss under s42A(5)(b) of the Administrative Appeals Tribunal Act 1975 – short band community FM licence – failure of applicant to distinguish need for broadcasting licence with obligation to comply with Directions – application dismissed
Radio Communications Act 1992 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth) s42A(5) and s42B
REASONS FOR DECISION
5 November 2004 Mr John Handley, Senior Member 1. The respondent applied in these proceedings to dismiss the application pursuant to s42A(5) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”). The application was made by reason of the failure of the applicant to comply with Directions previously made by the Tribunal. In the alternative the respondent sought dismissal of the application pursuant to s42B of the AAT Act on the basis that the proceeding was frivolous.
2. The circumstances of the application may be briefly summarised as follows.
3. Mr Sobh applied to the respondent for an apparatus licence pursuant to the Radio Communications Act 1992. The applicant is the proprietor of “Middle East Radio 1st FM-87.6”. He intended by the apparatus licence to conduct a 24 hour per day broadcasting service for the Arabic community in Melbourne. The site upon which the licence was intended to operate was recorded as 5‑7 Plenty Road, South Morang. A licence was issued by Number 1308790 on 10 July 1998 and was due for expiration on 9 July 2003.
4. A site audit was conducted by an officer of the respondent in December 2002 and it was found that a transmitter was not operating at the South Morang address nor was an antenna evident. It was later learnt that the antenna used to transmit the alleged broadcast was located at the premises of 75 Williamsons Road, South Morang. The occupier of those premises completed a witness statement to the respondent advising that he had notified Mr Sobh that he wanted to have the antenna removed and the transmitter had been removed in 2002. It was later learnt that the applicant had been “rebroadcasting” by that antenna with the broadcast emanating from premises at 670 Plenty Road, Reservoir.
5. When the respondent learnt that the applicant had not been broadcasting or transmitting from 5‑7 Plenty Road, South Morang, the applicant was advised (28 January 2003) that there was an apparent breach of the licence because it could not be established that a broadcasting service was being transmitted on the 87.6 FM frequency.
6. Additionally the respondent put the applicant on notice that the “Radio Communications Licence Conditions (Broadcasting Licence) Determination No. 1 of 1998” imposed a condition upon licences that had been issued namely, that in the case of licences issued before 1 March 2001 there must be the provision “with reasonable regularity of a broadcasting service together with the maintenance of records of the commencement, hours of operation and provision of the service”. The applicant was asked to provide details with respect to the matters contained within the letter of 28 January 2003 within 30 days. There being no response to that letter, an officer of the respondent decided on 15 April 2003 that the licence should be cancelled. That decision was affirmed by a delegate on 4 June 2003. The applicant has applied to this Tribunal to review that decision.
7. This application has been the subject of two Conferences pursuant to s34 of the AAT Act and four Directions Hearings convened by a Deputy President. Directions or Amended Directions have been made by the Deputy President on five occasions being:
10 December 2003,
6 April 2004;
17 May 2004;
9 June 2004; and
15 July 2004
On those occasions the applicant has been directed to either file witness statements, records and reports in support of the application, a Statement of Facts and Contentions and material to support the transmission of a broadcasting service pursuant to the apparatus licence.
8. On a number of occasions the Directions Hearing has been adjourned to permit the applicant to obtain relevant documentation. On other occasions the Directions have been amended to allow the applicant additional time to lodge the materials. For a period of time the applicant was legally represented but in August of this year his solicitor ceased to act.
9. On 22 October 2004 when this application was listed the applicant had not lodged a Statement of Facts and Contentions nor had he lodged statements of witnesses.
10. Mr Sobh had previously lodged letters completed by a number of persons within the Arabic community in Melbourne who variously supported the transmission of an Arabic broadcasting service. A letter was also supplied by a technician (Hyslop) which purports to confirm the installation of a transmitter in May 2002 at 75 Williamson Road, South Morang but also refers to the transmitter not being in operation for a number of periods between May 2000 and July 2001. In another letter (26 April 2003) Hyslop said that the “licence” “had been in continuous operation for the past three years except for the time when the equipment was removed for repair or was turned off by the property owner”.
11. The applicant produced a photograph of the premises at 75 Williamsons Road, South Morang upon which an antenna is fixed but it is from those premises that the owner advised the respondent in May 2002 that the transmitter had been removed 12 months earlier (refer paragraph 4).
12. In a letter from “AYB Electrical” of 29 July 2004, Mr Osbourne Ayoubi recorded that he installed a “radio telomast” at 75 Williamsons Road, South Morang, that the radio station “had few problems with the transmitter while broadcasting. Broadcasting takes place at the location of the station which is at 670 Plenty Road Reservoir and receives from this site a rebroadcast at South Morang”.
13. At the hearing on 22 October 2004, Mr Sobh said that he had recently instructed the solicitors who had previously ceased to act. He said that he had met with his solicitor on the day prior to the hearing but learnt that he was to appear in another venue on 22 October 2004 and would not appear on his behalf at the Tribunal. In those circumstances, Mr Sobh said he arranged to meet with his solicitor on 22 October 2004 and obtain “his file”. He said he rang the solicitor on the morning of the hearing and learnt that the solicitor had forgotten to bring his file with him. Mr Sobh said that file contained the original of the letter of AYB Electrical at 29 July 2004 together with a Statutory Declaration completed by Mr Ayoubi on 21 October 2004.
14. The applicant did produce a document entitled “Middle East Radio Program Guide 2000/2002” which purports to be a timetable, at hourly intervals, of the programs broadcast in those years. Additionally the applicant lodged a letter dated 17 October 2004 with a number of documents annexed entitled “support sheet June 2002” which contained the names, addresses and telephone numbers of 48 persons who – by reference to the letter of 17 October 2004 – purport to offer their names and addresses because they are “constant listener of the middle east radio station” and have lodged a “protest for the cancellation of the licence”.
conclusion and reasons for decision
15. I am satisfied that the application should be dismissed pursuant to s42A(5)(b) of the AAT Act. This decision is made because I am satisfied that the applicant has failed within a reasonable time to comply with Directions made by the Tribunal.
16. The Tribunal issues Directions from time to time to ensure that relevant documentation is lodged prior to the commencement of a Hearing, thereby permitting parties to be aware of each others application. Frequently, the advantage of the provision of documents as directed is to cause parties to review their respective case and often, when respondents become better acquainted with the appeal of an applicant, the decision under review is either reversed or there is resolution.
17. In the present application the respondent decided in January 2003 that the applicant should be put on notice that his licence was at risk because it could not be satisfied that there was compliance with the licence. Additionally the respondent was not then satisfied that there had been broadcasting pursuant to the Radio Communications Licence Conditions (Broadcasting Licence) Determination No. 1 of 1998. It ultimately made a primary decision and a reconsidered decision to cancel the licence.
18. The proceedings in this Tribunal commenced on 20 August 2003, there have been two pre-hearing Conferences and four Directions Hearings. Directions had been issued on five occasions. At 22 October 2004 the applicant had not lodged a Statement of Facts and Contentions nor had he lodged witness statements, as he had been directed.
19. Additionally, I cannot be satisfied, on the documents lodged by Hyslop or by AYB Electrical, that the applicant could demonstrate compliance with the licence conditions. That is to say the letters were equivocal or ambiguous to the extent that they did not establish that there had been provision of a broadcasting service “with reasonable regularity”. Certainly the documents did not contain any reference to “records of the commencement, hours of operation and provision of the service”.
20. It is documents of that type that the applicant, as the owner of the broadcasting company and the proprietor of the relevant licence, should have been able to provide. When he was challenged on 22 October 2004 that the “program guide”, as submitted by him, was not of itself evidence of broadcasting at relevant times he then suggested that the matter be adjourned to allow him to provide written statements from the announcers who had conducted or delivered the programs contained within the “program guide”.
21. I am of the view that the applicant has had more than an adequate opportunity to comply with the Directions made and supply the information as directed. I note that for a period of time the applicant was legally represented and therefore had the assistance of a person who could both advise him and or prepare or obtain documentation as required. It is to be noted that a legal representative can of course only act upon instructions given. The reasons for the solicitor withdrawing his services is not known.
22. Nonetheless, whilst the Tribunal will from time to time amend Directions to allow parties further time to comply, I know of no other application where Directions have been made on five occasions and where four Directions Hearings have been convened. Despite that sad history, the applicant is still unable to demonstrate that he has complied with licence conditions because there has been a continuing failure on his part to comply with those Directions.
23. The letters supplied by Mr Sobh from various members of the Arabic community bear testament to the need to have a broadcasting service in the Arabic language and to the need to provide various radio programs to members of the Arabic community. It would appear from the letter that the applicant is himself held in high regard but I cannot be satisfied upon any rational interpretation of the letters that they amount to evidence that there has been a broadcasting service operating (at relevant times) with “reasonable regularity”. Indeed the letters are more in the nature of the request for reinstatement of the licence because of the need to have an Arabic broadcasting service.
24. On balance I think that the applicant has sought to demonstrate that there is a need for an Arabic broadcasting service and it should be provided by him upon the licence that was previously issued to him, as opposed to him focussing upon his obligation as the initiator of these proceedings to comply with Directions that had been made by the Deputy President.
25. Mr Cranston who appeared on behalf of the respondent submitted that in the event that the application was dismissed, Mr Sobh, could later issue fresh proceedings to challenge the decision under review. This is of course permissible because in the event that the application is dismissed, there has been no review of the decision to cancel the licence. Mr Cranston acknowledged that in the event that such an application was ever lodged it would be beyond the time permitted under the Act. However he was confident – although he indicated that he did not have instructions upon this issue – that should the applicant provide documentation in support of the broadcasting service being provided with “reasonable regularity” that his client would not object to the proceedings being lodged out of time.
26. For the reasons given above I am satisfied that the application should be dismissed pursuant to s42A(5)(b) of the AAT Act. It is not necessary, in these circumstances to consider the alternative application made by the respondent pursuant to s42B.
I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr John Handley, Senior MemberSigned: Holly Weston
AssociateDate of Hearing 22 October 2004
Date of Decision 5 November 2004
Solicitor for the Applicant Self Represented
Solicitor for the Respondent Mr J Cranston
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