Stamoulis v Bouzis
[1998] VSCA 16
•7 August 1998
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted No. 4902 of 1998
HARRY STAMOULIS
Appellant
v
ANGELO BOUZIS
Respondent
---
| JUDGES: | BROOKING, ORMISTON and TADGELL, JJ.A. |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 5 and 6 August 1998 |
| DATE OF JUDGMENT: | 7 August 1998 |
| MEDIA NEUTRAL CITATION: | [1998] VSCA 16 |
---
Contract - Licence to transmit on AM band under Part 3.3 of Ch.3 of Radio Communications Act 1992 - Agreement by way of sub-licence to respondent, “concluding on the termination of the first licensor’s current entitlement to use the licence” - Licensor transfers licence to appellant - Whether prima facie case this respondent entitled to enjoin appellant from using licence after date of transfer - Whether “current entitlement” then terminated - Whether sub-licence constituted “authorisation” - Whether meaning of Div.4 of Part 3.3 of Act - No prima facie case - Injunction dissolved.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr. P.J. Bick | Holding Redlich |
| For the Respondent | Mr. J.G. Santamaria Q.C. | Pointon Grant |
| with Mr. S.E. Marantelli and Mr. J.P. Moore |
BROOKING, J.A.:
I will ask Mr Justice Ormiston to deliver the first judgment.
ORMISTON, J.A.:
This is an appeal from the order of a judge in the Practice Court granting an interlocutory injunction in favour of the respondent, Angelo Bouzis, restraining the appellant, Harry Stamoulis, "from withdrawing from the [respondent] the right to use the radio licence to broadcast on the AM Radio Band Frequency 1116 and the associated goodwill" and likewise restraining him from withdrawing certain rights to occupy and use premises, facilities, equipment and the like at two premises necessary to operate radio studios and to transmit programmes on AM frequency 1116. The difficulties which faced the learned primary judge were a number of inartistically drawn documents, including a licence agreement upon which the respondent relied but to which the appellant was not a party and legislation contained in the Radio Communications Act 1992 of the Commonwealth (the "Act"), which, as is not now uncommon, has been drafted in largely broad brush terms leaving many matters of detail to the imagination.
In short, one Peter Corso (either directly or through a related company Radio Italia Melbourne Pty Ltd ("Radio Italia")) held until 5 December 1997, or thereabouts, a radio broadcasting licence number 1150833 issued by the Australian Communications Authority (the "ACA") pursuant to Part 3.3 of Chapter 3 of the Act. The licence in question was and is an "apparatus licence" described in Part 3.3 of the Act and had been used by Mr Corso to transmit signals and programmes under the call sign 3BM. However, in May last year Mr Corso decided that through Radio Italia he would licence Mr Bouzis to use that radio licence and what was called the "associated goodwill", and at the same time to arrange for two other companies connected with him to licence certain premises and transmitter facilities at Lower Plenty and certain plant and equipment needed to operate two radio stations conducted from an address in Northcote. The terms and conditions of that licence were set out in some detail in an agreement executed by the parties on 27 May 1997, which was to operate from 1 June 1997 at a licence fee of $25,000 per month together with 25 per cent of net profits. It seems also to be accepted on both sides that thereby Mr Bouzis was "authorised" to operate the relevant radio communications devices under the licence, within the meaning of Division 4 of Part 3.3 relating to what in the headings are described as "third party users". The term during which the respondent as licensee was permitted to use the licence and the various other items described in the agreement under clause 1 was set forth as Item 5 in the schedule, which served to expand the word "term" in the definition clause and which was expressed as follows:
"Commencing on the 1st June 1997 and concluding on the termination
of the first licensor's current entitlement to use the radio licence".It is necessary at this stage to refer to one other term of that agreement, clause 1.1, which provided:
"The parties acknowledged that the Australian Broadcasting Authority (sic) may terminate the first licence or its existing radio licence at any time".
It should be noted that this wrongly referred to the body formerly responsible for control of these licences, but it was not seen as of any significance.
Although the "first licensor" was in fact Radio Italia, it has been accepted that it was acting as agent on behalf of Mr Corso and the reference was to Mr Corso's "current entitlement". It seems that the respondent used the licence in the latter part of last year and indeed for varying reasons into this year, although only one of those reasons is presently relevant to this appeal. Although using the frequency referred to on the licence, the respondent has used the call sign 3AB. It also appears that the licence in operation in May and June 1997 was, in fact, issued by the Spectrum Management Agency in the name of 3BM and expired on 22 October 1997 and that thereafter a further licence, which on all sides was treated as the renewal of the relevant licence, was issued in almost identical terms which stated that the date of expiry was 22 October 1998.
However, in about October 1997 Mr Corso began to negotiate with the appellant to sell him licence number 1150833 and on 25 November 1997 those parties signed heads of agreement whereby Mr Corso agreed to transfer the licence for frequency 1116AM to the appellant for some $600,000 or thereabouts, although the precise consideration is not entirely clear. It is necessary only to set out clause 4 of that document which reads:
"Upon settlement Peter Corso will assign to Harry Stamoulis the current lease for the licence of the frequency (1116AM) and the lease of equipment which is held by Angelo Bouzis as the lessee".
In broad terms it seems that the respondent was aware of the proposed sale but probably not of its details and that the appellant was aware of the terms of the licence agreement in favour of the respondent from Mr Corso and his interests. Nevertheless, Mr Bouzis was not made party to any agreement relating to the transfer of the licence to the appellant, albeit that a further agreement between Mr Corso and the appellant was signed on 2 December 1997, the terms of which were not seen by the parties to be of any present significance. In fulfilment of the transfer agreement Mr Corso and the appellant signed an application for transfer of the licence to the appellant which was dated 2 December 1997. The document is largely uninformative but it clearly refers to licence number 1150833 and call sign 3BM and the licence type was described, not inconsistently with the existing licence, as a "narrow band area station class A" licence. On 5 December 1997 the ACA wrote to the parties saying that the transfer had now been "processed", presumably in compliance with Division 8 of Part 3.3 of the Act relating to "Transfer of Apparatus Licences". Together with the letter a document in the form of an apparatus licence was issued in favour of the appellant which seems otherwise identical to the licence then held by Mr Corso, referring to the licence number as being 1150833 and the call sign as 3BM, with the date of expiry still being 22 October 1998. Nevertheless, as I have said, the respondent continued to broadcast on the frequency 1116 kHz and, so far as one can gather, has continued to pay the licence fees to Mr Corso or his interests. There was immediate complaint about the transfer by the respondent and his solicitors but for reasons not accepted by the appellant no proceedings were immediately issued nor had been issued until 25 March 1998, the reason given by the respondent being that there were various attempts to negotiate the settlement of the dispute.
The respondent has at all times asserted that, notwithstanding the language used to describe the term of the licence agreement of 27 May 1997, he continues to have the same rights after the transfer as before and that Mr Stamoulis is obliged to recognise those rights. As I would understand it, he has asserted that he has the right to use the frequency and transmit programmes upon the same basis as before, although the appellant as licensor of the apparatus licence has not granted him any similar rights. He says this has come about by reason of the fact that he obtained rights as a licensee or a sub-licensee in respect of licence number 1150833 which have survived the transfer and are enforceable so far as is necessary against the appellant, because those rights flow from the very same apparatus licence of which Mr Stamoulis is now the holder. It has also been asserted that, either in support of his primary assertion or independently, the respondent remains authorised pursuant to Division 4 of Part 3.3 notwithstanding that the present "licensee of an apparatus licence" has not authorised him by written instrument or otherwise, except to the extent of inferences which may be drawn from the written agreement between Mr Corso and the appellant dated 25 November 1997.
It must be said, however, that the formulation of the case has varied from time to time and even during the course of submissions made during this appeal. The original statement of claim forming part of the writ seems firmly to be based upon the terms of the licence itself. Item 5 of the schedule relating to the term is expressly pleaded in full as is clause 11.1 of the agreement. Likewise the agreement dated 25 November and 2 December are pleaded including explicitly clause 4 of the heads of agreement. I should add that it is not pleaded, nor has it been asserted, that clause 4 required any transaction with the respondent to take place. It is further pleaded that there was an oral agreement with the appellant that he would collect the monthly licence fee payable under the licence agreement directly from the respondent but no estoppel was pleaded, nor relied upon in this Court. The statement of claim concludes by referring to various demands made by the appellant to negotiate a new licence agreement and that, if that were not done, the respondent was required or had been required to "cease all matters associated with AM radio band frequency 1116 including transmission services". Any injunction was therefore sought in terms which were ultimately made the subject of orders by the learned primary judge and described above. It should be reiterated that Mr Corso and his interests are not parties to this writ and it follows that no relief has been sought against him or them in relation to the matters in contention.
The application for interlocutory injunction was heard over two days in the Practice Court and the learned judge reserved his decision. One may gather from the terms of his judgment that the issues raised were complex and sought to go well beyond an interpretation of the provisions of the Act, of any licences given thereunder and of the licence agreement of 27 May 1997. Indeed it may well that be there were certain assumptions made or arguments not elaborated in the same way as they have been in this Court, which persuaded the judge that it was necessary to deal with these other complex questions of law. Essentially, however, there were two issues which he addressed: One, the question whether the rights conferred by the agreement of 27 May were to continue up until such time as the radio licence was terminated by the ACA; and, two, whether the transfer agreement between Corso and the appellant had the effect of terminating the respondent's right to operate the radio licence. An argument, however, seems to have been pressed by the appellant upon the lines that the May agreement gave a mere licence conferring no more than permission to do that which was otherwise unlawful. So it was argued that any revocation explicit or implicit sounded only in damages against the Corso interests and could not give rise to a right to claim an injunction of the kind here sought. The judge found that there was substance, however, in the argument that the licences here given were more than more licences so that it was arguable that they gave the respondent a proprietary interest in the licence and the other items the subject of the agreement.
Moreover, at least so far as the learned judge's reasons reveal, the question of the construction of the agreement and in particular of the term which related to its duration, was seen to be only on the periphery of the dispute, the judge expressing the conclusion, without elaborating his reasons, that:
"It is at the very least arguable, in my view, that the specified term of the agreement was from 1 May 1997 until the Australian Broadcasting Authority (sic) terminated the radio licence as contemplated by clause 11.1 of the agreement".
That conclusion, however, seems merely to have been used to show that the agreement gave more than a mere permissive licence. Thereafter the judge dealt with various arguments put on both sides as to whether this statutory licence could be said to be a chose in action or at least property of a kind which could not be determined by an act of the licensor, so that cases such as the High Court decision in Kelly and Kelly (1990) 92 A.L.R. 74 and the judgment in 2 Day FM Australia Pty Ltd v. The Commissioner of Stamp Duties (New South Wales) (1989) A.T.C. 4840 were called in aid. The judge, however, recognised that these matters may well have justified proceedings against Mr Corso but that he had to consider whether the appellant, who was not party to the licence agreement, could be restrained. Again for this purpose he had to take into account some detailed and complex arguments as to whether the appellant had notice of the plaintiff's proprietary interest, as so analysed, in the radio licence. So account was especially taken of the fact that the appellant had taken a copy of the agreement with the Corso companies to his solicitors before completing the purchase of the radio licence. In the end, although without examining any authorities, the judge concluded that there was a serious triable issue between the plaintiff and the defendant as to whether by reason of those circumstances the transfer had brought to an end the respondent's rights. The learned judge then turned to issues including balance of convenience and the respondent's delay in bringing the proceedings but concluded that he was nevertheless entitled to a remedy, upon giving the usual undertaking, restraining the appellant in the terms earlier described.
However, with the greatest of respect to the learned primary judge, none of those latter issues arise unless and until it is determined what is the right which the respondent acquired by virtue of the licence agreement of 27 May 1997 and for how long it had been agreed those rights should continue. It is nothing to the point to argue or to decide that there were serious questions to be tried, as required by the authorities (see now Patrick Stevedores Operations No. 2 Pty Ltd v. Maritime Union of Australia (1998) 153 A.L.R. 643 at 652), if the right created in the present case cannot fairly be argued to extend beyond the date of its transfer to the appellant. The same may be said of the implied authority given under Division 4 of Part 3.3. The duration of those rights is the question which must first be resolved.
As to these issues, the first was the subject of extensive debate in this Court. One may at once reject one of the appellant's contentions, namely that the licence held by Mr Corso and due to expire on 22 October 1998 was cancelled by his transfer of it to the appellant when a new licence issued to the appellant on 5 December 1998. Of course, any sub-licence (or authorisation) granted before the determination of an existing licence would, upon this hypothesis, each determine upon the issue of a new licence but for obvious reasons which are entirely consistent with the language of the Act (as set out below) and the licences granted thereunder, a "transfer", properly so described, requires ordinarily the passing of legal rights from one person to another so as to vest those rights in the other. See the discussion in my judgment (concurred in by the President) in Coles Myer Ltd v. Commissioner of State Revenue (Court of Appeal, 30 April 1998, unreported) at pp.16-19, especially at page 18. Moreover, unless the context requires otherwise, the word "transfer" does not connote or carry the idea of any act of extinguishment or determination of the relevant rights: see Coles Myer at page 19. I should add that this decision was not cited in argument but I am using it only to refute an argument of the ultimately successful appellant.
To my way of thinking it is clear that the licence issued to the appellant was, save for the name of the holder, the same licence that was held by Mr Corso. It related to the same wavelength or "carrier frequently" and call sign and the same number and it was otherwise identical. The licence in Mr Corso's name did not come to an end; all that resulted from the transfer was that the rights formerly held by him vested in the appellant.
The issue, however, is whether the licensor's (Mr Corso's) "current entitlement" to use the licence terminated or came to an end when the transfer was effected. For these purpose it is necessary to look briefly at the scheme of the Act.
Over the years the legislative control of radio transmissions and the spectrum has undergone many changes. In broad terms and so far as the present frequencies are concerned it is necessary to hold a licence to transmit radio programmes or other communications. It is an offence to operate a transmitter without a licence: see s.46 and the relevant definitions in s.5, 7 and 9. Under the Act the control and licensing of apparatus licences is effected primarily under Part 3.3 of Chapter 3 of the Act. No useful definition of "apparatus licence" appears in the Act; one is merely referred to Part 3.3. It may be assumed that, at the least, the description applies to the AM licences here in question. Division 2 of Part 3.3 makes provision for the issue of these licences. S.103 contains the most general provisions relating to the "duration" of apparatus licences. Unless suspended or cancelled they remain in force for the periods stated therein which can be up to five years. Division 3 deals with conditions to which apparatus licences are or may be subject but no provision of that division was said presently to be relevant. Division 4, however, was referred to and is headed "third party users". The relevant parts of s.114 provide:
"1.
Subject to sub-ss.2 and 3 a licensee of an apparatus licence may, by written instrument, authorise other persons to operate radio communications devices under the licence ...
4. Authorising other persons does not prevent the licensee doing anything in accordance with the licence".
The respondent also drew the Court's attention to s.116 which reads in part:
"1. If the ACA is satisfied that a person authorised under section
114 has contravened a condition of the licence to which the
authorisation relates, the ACA may give the licensee a written
notice directing the licensee to revoke the authorisation.
...3. As soon as practicable and, in any event, within seven days after service of the notice, the licensee must revoke the authorisation."
It should also be noted that by s.117 a "licensee of an apparatus licence who authorises a person under s.114 must ... retain [a copy of the authorisation] for at least one year after the authorisation ceases to be in force ..."
Division 5 relates to certain requirements for qualified operators and is not
here relevant.
Division 6 makes provision for the suspending or cancelling of apparatus licences but applies only where a relevant contravention of the Act of the conditions of the licence or of any other law has taken place: see s.125(1). Division 7 relates to the renewal of apparatus licences. No specific provision was referred to in argument, but the Division makes clear the wide powers the ACA has when application is made for renewal of these licences and the restrictions imposed on them if any relevant part of the spectrum is affected by a spectrum allocation declaration, the processes for which are set out in Chapter 2 and in Part 3.6, a complex Part of this Act not directly referred to, but which came into operation only on 22 April 1997. Spectrum planning has been going on for many years, indeed under the former Act, but general provisions for "radio frequency planning" are set out in Chapter 2 of the Act, none of which was directly referred to in argument.
It is sufficient to say that, consistent with the respondent's arguments as to the significance of clause 11.1 of the agreement, it is well understood in the industry that the planning process being undertaken by the ACA under the Act has had the consequence that all licence holders face the risk that their licences may be cancelled at the end of any process for the re-allocation of the spectrum: cf. s.153H(2). As I would understand it, that process also infects the expectations of licence holders in relation to both the duration of each licence and the likelihood of its being renewed, here for only 12 months at a time. A warning as to the possibility of non-renewal appears at the top of each relevant apparatus licence here in evidence.
Finally, it is necessary to refer to the provisions in Division 8 of Part 3.3 of the Act relating to the transfer of apparatus licences. It does not condescend to much detail and the effect of such transfers is barely touched upon, the relevant provision of the three sections, s.131AA to 131AC, reading:
"131A:
(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.... 131AB:
(1) Subject to section 131AC, when an application is made, the ACA
may transfer the licence into the name of the transferee.... (3) 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 conditions as those which applied immediately before the transfer."
S.131AC refers only to certain kinds of licence which may be declared to be non-transferable. It may be noted at this point that the provisions, especially of s.131AB(3), strongly support the conclusion reached above that a transfer under this Act does not bring to an end or terminate a licence.
To return to the matters primarily to be resolved, one may conclude that there is little in the relevant statutory provisions which would assist in reaching a decision as to the duration and effect of the agreement of 27 May 1987, and in particular its effect in relation to the apparatus licence, or to resolve the question what was the term of the respondent's rights as sub-licensee as set out in that agreement. Apart from certain provisions in Division 8 which will be discussed later, the most that can be said is that the scheme of the Act and its current administration meant that there was a continuous risk that an apparatus licence would be "terminated" or brought to an end at any time and so it was said that it was to that risk that the parties had adverted in Item 5 in the schedule, as they had earlier in clause 11.1. All that might be true, but it shows only that the parties were aware that the licence may come to an end sooner rather than later and the question as to what the words in Item 5 mean still has to be decided.
In my opinion it is clear that the term so described began on 1 June 1997 and concluded when Mr Corso's right and entitlement to use the apparatus licence ended or determined, which must be 5 December 1997 at the latest. There was and is no serious question to be tried, therefore, as to the meaning of Item 5 in the agreement. This conclusion does not flow from any premise that the licence itself was determined at that date. I have already expressed the conclusion that it did not and that the appellant became holder of the very same licence from that date. The conclusion results solely on a consideration of the actual words used by the parties to the agreement. If the parties had intended that the term should extend beyond the duration of Mr Corso's rights , they could have more simply said "concluding on the termination of the radio licence", being the licence for frequency band 1116AM. Moreover, having regard to the nature of a radio licence and the rights given by way of sub-licence it is not surprising that the parties chose to limit the right to a period while Mr Corso himself held the licence. It is one thing to assign a lease with the necessary and recognised legal consequences which flow from the assignment of a lessor's interest; it is quite another when the subject is an apparatus licence, especially where the sub-licence is directly related to two other licences from different parties of different kinds of property. Perhaps an answer could be made that the transferee of the licence would take the benefit of the agreement with the sub-licensee, but there would still remain the question whether the continued exercise of rights by the respondent would comply with the requirements of Division 4 relating to third party users. That question will again be considered later.
Those difficulties might be set aside if correctly the issue was and is whether there was and is a serious question to be tried. The respondent's real difficulties are in the words, in fact, used in the agreement. No alternative meaning to the words used was pleaded and as counsel conceded the statement of claim would have to be amended to accommodate the respondent's interpretation of it. Even that proved difficult, several meanings being put forward while counsel was on his feet, although one may allow for the fact that the Court interrupted the appellant's submissions to enquire how the respondent put his case.
In essence, as I would understand it, the word "terminate" was said to refer to an act of the ACA bringing the licence to an end. At first it was said the words "cancellation by the ACA" or words to like effect should be read in. Then it was suggested that, by reference to the use of the same word "terminate" in clause 11.1 of the agreement, it should mean that any act of "termination" by the ACA "at any time" would bring this licence agreement to an end, as the parties there contemplated. It may be noted here that an act of "termination" by the ACA was not the only way the licence could come to an end. Termination for breach under Division 6 is there called "cancellation". It is not what clause 11.1 primarily had in mind. "Cancel" is also used in s.155H, but that seems confined to new licences coming into force after the commencement of the section (see sub-s.(1)(b)). Non- renewal seems to me a more likely means of bringing the licence effectively to an end, but I was not clear if that was said to be a "termination" effected by the ACA.
One may assume each of those matters is arguable but they are each directed to "termination" of the licence or its otherwise coming to an end. But that is not what the clause says. It is confined to the bringing to an end of the "first licensor's current entitlement", not of the licence itself. Assuming in his favour that entitlement would comprehend any renewal of the licence by the licensor (and there are strong arguments that it should), the relevant event would still be the termination of Mr Corso's interest. If that were limited to some act of the ACA, then it would be irrelevant as any future cancellation, termination or failure to renew would not thereafter bring to an end Mr Corso's interest, it would bring to an end the transferee's (or any current licensee's) interest. So the interest of the first licensor as described in Item 5 would not then be terminated, nor on this view could it ever be terminated by the ACA. The only relevant "termination" of Mr Corso's "current entitlement" could only have been when the transferred it to the appellant
Even on the respondent's widest interpretation the transfer to the appellant on 5 December 1997 would still be an act of the ACA which brought to an end Mr Corso's interest. For the provisions of Division 8 contemplate not a direct transfer by the parties regulated by the ACA or to be registered by the ACA, but by the terms of s.131AB it is the ACA itself which "may transfer the licence into the name of the transferee" and thereby bring to an end the transferor’s interest. All these matters - and the latter one is only peripheral to my conclusion - point to only one conclusion, namely, that the words in Item 5 mean what they say. There is no relevant ambiguity, but, even if there were, none of the matters raised would require a different interpretation. The duration of the respondent's term under the agreement was until Mr Corso's then entitlement to the apparatus licence as reflected in its renewed licence came to an end or was terminated. That was what occurred on 5 December 1997. There was no serious question to be tried on this issue.
Finally, there was a vain attempt to keep the injunction alive by relying on the agreement of 27 May as an "authorisation" which continued to have effect after the transfer. This was likewise not pleaded and posed difficulties in formulation. I would not doubt that there was a strong case for saying that until 5 December 1997 there was an authorisation, in effect, authorising the respondent in writing to operate radio station 3BM on frequency 1116AM. The agreement of 27 May 1997 clearly contemplated that he would have that right and there seems good reason to consider that Radio Italia acted, in effect, as Mr Corso's agent to give that authorisation in writing.
The difficulty comes after the transfer. At that time it cannot be said that the then licensee, the appellant, had authorised the respondent by written instrument to operate the station. Nothing in Division 4 suggests that the rights of an authorised party survive a transfer. Whatever may be said of the proprietary interest aspects of an apparatus licence, the authorisation contemplated by this division is a mere right of user, a mere permission to do that which was otherwise unlawful or in conflict with the rights of other parties, and it was capable of revocation at any time, subject to any personal rights of action between the relevant parties to the document. It could not be treated as creating any right which would bind a transferee or subsequent holder of the licence.
Counsel attempted to call in aid certain provisions of the agreement to transfer the licence, but none of these inartistically drawn documents, or any provision therein, could be described as an authorisation under Division 4. In each case the respondent was not a party to them and so it could not thereby have been authorised in writing by the licensor to use the licence. The argument must fail and there is no basis on either ground for saying that there was a serious question to be tried as to the enforceability of the respondent's rights under the licence agreement against the appellant as transferee.
I should mention in favour of the conclusions and reasons of the learned primary judge that it seems that the appellant's case was not really put on the present basis before him, except by a side-wind. The appellant's then concentration on an argument that the licence itself had come to an end on 5 December 1997 was, as I have said, a misconception which may have diverted the learned judge from correctly analysing what the meaning of the relevant term of the licence agreement was and thereby seeing that it could not extend beyond the ending of Mr Corso's entitlement to use the licence.
For these reasons, which are only so elaborate because I am differing from the learned judge's view as to whether there was a prima facie case as required by the authorities, the appeal must be allowed, the orders in paragraphs 1(a) to 1(c) by way of injunction should be set aside and in lieu thereof there should be an order that the application by way of summons dated 26 March 1997 be dismissed.
BROOKING, J.A.:
I will ask Mr Justice Tadgell to deliver the second judgment.
TADGELL, J.A.:
I agree that this appeal should succeed. It is not, in my opinion, fairly arguable that the "term", as that expression is defined in the agreement of 27 May 1997, was extant when this proceeding was begun on 26 March this year. Nor, I consider, is it fairly arguable that the "term" survived the transfer of the radio licence to the appellant. By definition the "term" concluded "... on the termination of the First Licensor's current entitlement to use the Radio Licence". I should be prepared to assume, without deciding, that the Radio Licence there referred to is the apparatus licence that existed on 27 May 1997 or any renewal thereof. I should also be prepared to assume, without deciding, that the "current entitlement" is to be understood as extending to an entitlement of the First Licensor to use the licence in force on 27 May 1997 and any renewal thereof. I would be prepared to assume accordingly, again without deciding, that the licence that was issued to the appellant in December 1997, the date of issue of which is expressed on its face to have been 10 September 1997, is comprehended by the expression "the Radio Licence" in Item 5 of the schedule to the agreement of 27 May.
It appears to me, however, to be plain beyond argument that the First Licensor's entitlement to use the Radio Licence did not survive the transfer of the licence or its reissue (if that is what it was) to the appellant. I would expressly reject the submission for the respondent that the "termination" mentioned in Item 5 is a reference to an action or to inaction on the part of the issuing authority by way of cancellation or non-renewal of the licence. That would, no doubt, be the probable meaning of the word "termination" if the reference were to the termination of the licence itself. It is not, however, what is said in Item 5. The word "termination" there is, I consider, a noun of action, equivalent in its context to "cessation", not a verb equivalent to "terminating" or "determining".
Clauses 11.1 and 11.2 respectively use the words "terminate" and "termination", and reliance was placed for the respondent on those provisions of the agreement of 27 May as an aid to the interpretation of Item 5. I cannot regard them as helpful. "[T]erminate" in clause 11.1 is a verb and the "termination" referred to in clause 11.2 is plainly enough a termination produced by the Authority's act of terminating the Radio Licence. By contrast, the termination referred to in Item 5 is, as I have been at pains to emphasise, not concerned with the termination of the Radio Licence, but with the termination (or cessation) of the entitlement of the First Licensor to use the licence, an event which might have nothing to do with the licensing authority.
Senior counsel for the respondent argued that the construction of Item 5 for which he contended might be supported by reference to s.114 and s.116 of the Radio Communications Act 1992. Section 114 in effect permits the holder of an apparatus licence to authorise another person to use the licence. That is what the agreement of 27 May did. Section 116 empowers the issuing authority to direct the licensee to revoke the authorisation, and it was submitted for the respondent, as I followed it, that it is not clear that an authorisation, once given, can be brought to an end otherwise than as a result of a direction under s.116 - for example, by transfer of the licence. That would, I think, be an extremely inconvenient result, if not a capricious or fanciful one. Plainly enough, termination or cessation of an authorisation to use a licence might actually come about in various other ways. In particular, I can see no reason why the parties to the instrument of authorisation should not agree that a cessation of the authorisation might be brought about by either the licensee's withdrawing the authorisation or the surrender by the person authorised of the entitlement. I do not think that sections 114 and 116 can aid the interpretation of Item 5.
Notwithstanding the somewhat opaque statement of claim it appears that the respondent must rely fundamentally, for any equity to support his claim for injunctive relief, on the agreement of 27 May 1997. It does not appear to me that the respondent could have obtained against any of the other parties to that agreement, had he sued them, relief of the kind that he was granted by the interlocutory order the subject of this appeal. That being so, I am quite unable to see how he can sustain the claim to the relief that he obtained against the appellant.
For these reasons I agree that the appeal should be allowed.
BROOKING, J.A.:
The construction contended for by the respondent of Item 5 of the schedule to the agreement of 27 May 1997 dealing with the term of the agreement is made the more difficult by the presence of a provision requiring the continued payment of the licence fee to Radio Italia Melbourne Pty Ltd, notwithstanding that that company may have long since ceased to have anything to do with the radio licence. I agree that, for the reasons given by Tadgell J.A., this appeal must succeed.
(Discussion ensued.)
BROOKING, J.A.:
Subject to anything that counsel may say about the minutes of order, including in particular the usual undertaking, which is drafted from memory, the minutes will be as follows:
1. Leave to appellant to amend notice of appeal so as to correct date of order below from 9 April 1998 to 8 April 1998.
2. Appeal allowed with costs.
3. Authenticated order below corrected by causing it to record under
“Other Matters" the following:
"Plaintiff by his counsel undertakes to abide by any order this Court may make as to damages in case this Court shall hereafter be of opinion that the defendant has sustained any by reason of this order which the plaintiff ought to pay", and by adding as paragraph 3 "Costs of application reserved".
4. Paragraphs 1 and 3 of order below set aside. In lieu thereof application dismissed with costs.
This does not form part of the order, although it will be recorded under "other matters". We will grant a certificate to the respondent, one being sought, as is now intimated, under the Appeal Costs Act.
0
0
0