Telecasters North Queensland Ltd v Australian Broadcasting Tribunal

[1983] FCA 345

Re: TELECASTERS NORTH QUEENSLAND LIMITED
And: CATHARINE WEIGALL; JAMES WILKINSON; NORTH QUEENSLAND PORTFOLIO PTY. LTD.
Re: TELECASTERS NORTH QUEENSLAND LIMITED
And: DAVID JONES (as Chairman of the Australian Broadcasting Tribunal);
AUSTRALIAN BROADCASTING TRIBUNAL; NORTH QUEENSLAND PORTFOLIO PTY. LIMITED Qld
G97 and G99 of 1983
Administrative

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
Fitzgerald J.

CATCHWORDS

Administrative - application to review certain proceedings of the Australian Broadcasting Tribunal - Tribunal's power to approve or reject applications lodged outside the time prescribed by sub-s. 92F(7A) of the Broadcasting and Television Act and its jurisdiction to hold an inquiry "in accordance with sub-s. (7A)", "made in accordance with s.92F".

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

Broadcasting and Television Act, s.92F and 92FAA

HEARING

BRISBANE

#DATE 22:11:1983

ORDER

1. Applications G97 and G99 of 1983 be dismissed.

2. The Applicant pay North Queensland Portfolio Pty Ltd's taxed costs of and incidental to the hearing of 15 and 16 November 1983, and otherwise of and incidental to Application G99 of 1983. Otherwise, the costs of all parties of and incidental to Applications G45 and G97 of 1983 are reserved.

3. The Applicant may file and serve written submissions and any affidavits or other material with respect to the orders for costs which it seeks on or before Friday 25 November 1983 and the other parties may respond in similar fashion on or before Tuesday 29 November 1983. If any party desires that Applications G45 or G97 of 1983 be restored for further argument as to costs, the District Registrar must be notified in writing on or before Wednesday, 30 November 1983.

JUDGE1

The applicant, Telecasters North Queensland Limited ("Telecasters"), has applied to the Court for orders under the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act") in respect of certain proceedings of the Australian Broadcasting Tribunal ("the Tribunal"). The Tribunal, its Chairman, other members of the Tribunal involved in the proceedings before the Tribunal, and North Queensland Portfolio Pty Ltd ("Portfolio"), which is a party to those proceedings, are all respondents to the present Applications. In all, Telecasters has made three Applications. The first, Application G45 of 1983, has been dismissed by consent but the costs have been reserved. The second, Application G97 of 1983, sought the review of a number of decisions made by the Tribunal in the course of the proceedings before it. Sensibly, these questions have now been resolved by the legal representatives of Telecasters and Portfolio, although again there is an outstanding issue as to costs. A further question, raised both by Application G97 and the third Application, G99 of 1983, remains for resolution. Telecasters contends that the Tribunal has no jurisdiction in the proceedings before it. That question depends upon the construction of the Broadcasting and Television Act 1942 ("the Broadcasting Act").

Telecasters is a public company and the licencee of commercial television station TNQ-7 Townsville and commercial television translator stations TNQ-1 Bowen and TNQ-5A Townsville. Its wholly owned subsidiary companies hold licences under the Broadcasting Act for commercial television station FNQ-Cairns and commercial broadcasting stations 4AY and 4GC Charters Towers. Another subsidiary, in which Telecasters holds a majority interest, is the licencee of commercial broadcasting station 4LM Mt Isa. Telecasters also has smaller interests, directly or through subsidiaries, in companies holding other licences under the Broadcasting Act. Between 8 May 1982 and 19 September 1982, Portfolio acquired 30,667 shares in the issued capital of Telecasters. The Broadcasting Act had no application to those acquisitions. However, further acquisitions of shares in Telecasters by Portfolio since that time are affected by the Broadcasting Act and it is its operation in relation to those acquisitions which lies at the heart of the present controversy.

The parties have argued their dispute by reference to Part IV Division 3 of the Broadcasting Act, and in particular ss. 92F and 92FAA, in effect ignoring all licences in which Telecasters is interested beyond a single commercial television licence. It is common ground that it is appropriate to approach this matter in that way, and that the outcome of Applications G97 and G99 would not be affected by other material provisions of the Broadcasting Act such as those contained in Part IV Division 2 relating to commercial broadcasting licences.

It is necessary to set out some parts of ss. 92F and 92FAA. Section 92F provides:

"(3) Where a transaction is proposed, the prescribed party to the transaction . . . may
(a) give the Tribunal notice in writing, stating -
. . .
(b) lodge an application with the Tribunal, in accordance with the form approved by the Tribunal, for approval of the transaction in so far as it affects the prescribed party.
. . .
(7A) Each person to whom this section applies in relation to a transaction (other than a prescribed party who has lodged an application in relation to the transaction in accordance with paragraph (3)(b)) shall, not later than the 28th day after the transaction takes place or such later day as the Tribunal, on application, allows by notice in writing served on the person before that 28th day, lodge with the Tribunal, in accordance with the form approved by the Tribunal, an application for approval of the transaction in so far as it affects the person.
(7B) An application lodged in pursuance of paragraph (3)(b) or sub-section (7A) . . . shall be taken not to be lodged in accordance with that paragraph or sub-section unless it is accompanied by a statutory declaration . . .
. . .
(7D) On receipt of a . . . application given to or lodged with the Tribunal by a person in pursuance of sub-section (3) or (7A), the Chairman shall -
(a) if the . . . application does not comply with the requirements of this section - reject the . . . application and give the person such directions as are necessary to ensure that it complies with those requirements; or
(b) in any other case - accept the . . . application,
and, for the purpose of this Act, the . . . application shall be taken not to be . . . lodged with the Tribunal until it has been so accepted.
(7E) Where a transaction takes place at a particular time and a person is a prescribed party to the transaction, then, unless -
(a) immediately before that time, there was in effect a notice given by the person in accordance with paragraph (3)(a) in relation to the transaction; or
(b) before that time, an application was lodged by the person in accordance with paragraph (3)(b) in relation to the transaction,
the person is guilty of a separate offence in respect of each day (including the day of a conviction under this sub-section or any subsequent day) after that time until -
(c) the day on which he gives a notice in relation to the transaction in accordance with paragraph (3)(a) (modified so far as is necessary to take account of the fact that the transaction has taken place); or
(d) the day on which he lodges an application in relation to the transaction in accordance with sub-section (7A).
(7F) A person who fails to comply with sub-section . . . (7A) is guilty of a separate offence in respect of each day (including the day of a conviction under this sub-section or any subsequent day) during which the failure continues."

Section 92FAA provides:

"(1) Subject to sub-section (2), where an application in relation to a transaction is made in accordance with section 92F, the Tribunal shall, by notice in writing served on the applicant, approve the transaction in so far as it affects the applicant.
(2) Where an application in relation to a transaction is so made and -
. . .
then subject to this section, the Tribunal by notice in writing served on the applicant -
(then follows a statement of the circumstances in which the Tribunal is to, or may, refuse an application).
. . .
(6) The Tribunal shall not refuse to approve a transaction either in whole or in part unless it has, in accordance with this section, held an inquiry into such matters as are determined by the Tribunal to be relevant to the transaction.
. . .
(8) An inquiry required by sub-section (6) to be held in relation to a transaction may, if the Tribunal thinks fit, be joined with an inquiry into the renewal of the licence to which the transaction relates.
. . .
(11) Where -
(a) an application is lodged by a person under sub-section 92F(7A) in relation to a transaction;
(b) a notice is served on the person under sub-section (2) refusing approval of the transaction in whole or in part; and
(c) after the expiration of the period of 6 months after the date of service of the notice or such longer period as the Tribunal, on application, allows by notice in writing served on the person within that period of 6 months, the person holds shareholding interests, or interests, in the company to which the transaction relates exceeding in amount or proportion -
(i) where approval of the whole of the transaction is refused - the shareholding interests, or the interests, that he had in that company immediately before the transaction took place; or
(ii) where approval of part of the transaction is refused - the shareholding interests, or the interests, that he had in that company immediately before the transaction took place together with the shareholding interests, or the interests, in respect of which approval is granted,
the-person is guilty of a separate offence in respect of each day (including the day of a conviction under this sub-section or a subsequent day) during which he so holds those shareholding interest or interests.
. . .
(13) The Tribunal shall not approve a transaction in relation to which section 92F applies except as provided by this section."

On 11 November 1982, Portfolio acquired a further 446,193 shares in Telecasters. It therefore became the holder of shareholding interests in Telecasters amounting to a prescribed interest in its commercial television licence (para. 92F(1)(a)(i)) and Portfolio became a prescribed party (para. 92F(2)(b)). Further, certain individuals and companies associated with Portfolio each became a person to whom or to which s.92F applied in relation to the transaction by which Portfolio acquired the further shares.

Since then, Portfolio has acquired further shares in Telecasters and is currently Telecasters' largest shareholder. By the end of April this year, Prtfolio's holding was of the order of 1 1/2 million shares, constituting something in excess of 19% of Telecasters' issued capital. It is unnecessary to detail further the various transactions by which Portfolio acquired its shareholding in Telecasters.

Prior to its acquisition of the 446,193 shares in Telecasters on 11 November 1982, Portfolio gave the Tribunal a notice in writing in respect of the proposed transaction pursuant to para 92F(3)(a) of the Broadcasting Act which was accepted by the Tribunal on 10 November 1982, the day preceding the acquisition. No notice pursuant to para 92F(3)(a) was given in respect of any of the other acquisitions.

No application for approval pursuant to para 92F(3)(b) of the Broadcasting Act was lodged with the Tribunal prior to any of the acquisitions.

However, applications for approval were lodged after each of the acquisitions by Portfolio and by each of the other persons to whom or to which s.92F applied in relation to the transactions. No extensions of time were allowed for the lodging of those applications for approval. The applications lodged by Portfolio in respect of the acquisition of 446,193 shares on 11 November 1982 and in respect of a number of subsequent acquisitions, and all applications lodged by the other persons to whom or to which s.92F applied in relation to the acquisitions, were lodged outside the time prescribed by sub-s. 92F(7A), i.e. later than the 28th day after the respective transactions.

The Chairman of the Tribunal accepted all the applications under sub-s. 92F(7D). The Tribunal then appointed an inquiry in relation to the transactions, in conjunction with an inquiry into Telecasters' commercial television licence, under sub-ss. 92FAA (6) and (8). The inquiry opened on 16 June 1983. Telecasters was approved by the Tribunal as "a person having an interest in the proceedings" under s.22 of the Broadcasting Act and has been permitted to be represented and to participate in the inquiry. The inquiry is part heard but stands adjourned to permit the determination of the Applications to this Court under the Judicial Review Act.

The dispute presently before the Court centres upon the single fact that the applications for approval were not made within the time prescribed by s.92F of the Broadcasting Act. It is common ground that questions concerning the sufficiency and accuracy of the applications for approval in other respects will fall for consideration by the Tribunal in the course of the inquiry, if it is to proceed, and may affect either its power to approve the applications or the course which it is proper for it to follow in the exercise of that power. There has been some debate already before the Tribunal concerning the various applications, and, insofar as it has ruled, it has ruled against Telecasters. However, as I understand it, it is accepted on all sides that no ruling thus far given by the Tribunal and no conduct by the Tribunal Chairman either precludes the Court from determining the present question or will preclude the Tribunal from further considering the sufficiency and accuracy of the applications at the close of the evidence, or any review by the Court of the Tribunal's decision. No question presently arises concerning the conclusiveness, or lack of conclusiveness, of any determination thus far by the Tribunal or its Chairman with respect to such issues.

Perhaps because of the nature of an Application to the Court under the Judicial Review Act and the stage in the proceedings before the Tribunal at which the Court has been approached, Telecasters tended to concentrate, although not exclusively, upon the Tribunal's jurisdiction to hold an inquiry. It was submitted for Telecasters that the Tribunal's jurisdiction to hold an inquiry stems from s.92FAA of the Broadcasting Act and, more particularly, sub-s. (6) of that section which denies the Tribunal power to refuse an application unless the Tribunal has held an inquiry. However, neither sub-s. 92FAA(6) nor sub-s. 18(1), which empowers the Tribunal to hold an inquiry into any matter before taking action under the Broadcasting Act in relation to that matter, expressly confines the Tribunal to inquiries in relation to those transactions falling within the operation of s.92F in respect of which the requirements of that section have been satisfied, and it does not seem helpful to consider the Tribunal's jurisdiction to hold an inquiry separately from its power to approve or reject the application in relation to the transactions to which the applications refer; in the course of argument, the two questions, jurisdiction to inquire and power to approve, tended to run together. Telecasters addressed two arguments in support of its proposition that the Tribunal could not approve the late applications. The first of those arguments turned on the construction of s.92F of the Broadcasting Act and the other on the interpretation of s.92FAA.

Telecasters' argument based on s.92F may be quite briefly stated. A prescribed party must lodge with the Tribunal an application for approval of a transaction, in accordance with the form approved by the Tribunal, either before the transaction (para. 92F(3)(b)), or, if prior to the transaction a notice has been given pursuant to para 92F(3)(a), not later than the 28th day after the transaction (sub-s. 92F(7A)). A person to whom s.92F applies in relation to the transaction other than a prescribed party must lodge such an application with the Tribunal not later than the 28th day after the transaction (sub-s. 92F(7A)). Failure by a prescribed party either to give notice under para 92F(3)(a) or to lodge an application under para 92F(3)(b) prior to the transaction constitutes an offence (sub-s. 92F(7E)). Failure by either a prescribed party or other person to whom s.92F applies in relation to a transaction to comply with sub-s. 92F(7A) is also an offence (sub-s. 92(7F). By para 92(7D)(a) the Chairman of the Tribunal is required to reject a notice or application given to or lodged with the Tribunal by a person in pursuance of sub-s. (3) or sub-s. (7A) of s.92F if the notice or application "does not comply with the requirements" of that section.

Telecasters' submission is that an application out of time does not comply with the requirement of s.92F and thus cannot be accepted by the Chairman of the Tribunal but must be rejected, from which it is argued that there is no application to be approved or refused, or giving occasion for an inquiry, pursuant to s.92FAA.

In my opinion, there are a number of indications in s.92F itself which require rejection of Telecasters' argument.

Section 92F does not merely create an entitlement to apply for approval of a transaction to which it applies but imposes an obligation to do so. Although the obligation to make application for approval has a temporal aspect, non-compliance with which constitutes an offence, the principal purpose of s.92F is to ensure that the Tribunal is provided with information needed to perform its statutory tasks of supervision and control: for example, under s.92M; (see also ss. 92F(7C)). The additional statutory requirements concerning the timing of the provision of the information, whilst important, are ancillary to the fundamental requirement that the information be provided. It would defeat the evident scope and object of the Broadcasting Act and the underlying public policy concerned with the provision of the information to the Tribunal to hold that an application lodged out of time must be rejected, or that such an application and its purported acceptance by the Chairman of the Tribunal are nullities.

Indeed, s.92F makes it clear that there is an on-going obligation to lodge an application despite the expiration of the period permitted for such a step: see also s.92U. A prescribed party who has not complied with sub-s. 92F(3) before a transaction has a further obligation to make an application imposed upon it by sub-s. 92F(7A). Further, the obligations under both sub-sections continue and give rise to repeated offences for each day until performance of the statutory obligation. By the combined operation of sub-ss. 92F(3) and (7A), each person to whom s.92F applies in relation to a transaction, including a prescribed party, is required to lodge an application and, if the obligation is not performed in the specified time, an offence or offences are committed until the obligation is performed. It is clear that effective lodgment of an application may occur out of time.

Sub-section 92F(7D) provides, inter alia, that for the purposes of the Broadcasting Act, "the . . . application shall be taken not to be . . . lodged with the Tribunal until it has been so accepted", i.e. by the Chairman, thereby perhaps impliedly requiring the Chairman to accept an application in order to permit performance of the statutory obligation to lodge it. What is provided in sub-s. 92F(7D) may create difficulties if given full literal effect; e.g. if there was delay in an acceptance by the Chairman which had the consequence that an application, although provided by an applicant, was not accepted within the prescribed time, and the introductory words of sub-s. 92F(D) themselves seem to assume that for some purposes lodgment with the Tribunal precedes a decision by the Chairman whether to accept or reject. However, it is unnecessary to pursue those questions. There is nothing whatever in s.92F, other than para. 92F(7D)(a), which lends any support to the view that an application for approval provided in performance of the statutory obligation to do so but outside the prescribed time cannot be accepted but must be rejected by the Chairman.

As I have already indicated, such a construction of para. 92F(7D)(a) would, in my opinion, defeat the manifest object of the legislation. Further, I am satisfied that the language of the paragraph does not require such a conclusion. The subject matter of the paragraph is "the . . . application", i.e., the documentation. There are a number of provisions of s.92F which specifically state "the requirements" with which the application, as distinct from the applicant, must "comply". In my opinion, it is with these "requirements" that para. 92F(7D)(a) is concerned. This view is confirmed by the latter part of the paragraph which requires the Chairman in rejecting an application to "give . . . such directions as are necessary to ensure that it (i.e. the application) complies with those requirements". No direction could lead to compliance with a time limit which had already expired, and, it may be noted, that time can only be extended prior to the date for compliance: sub-s. 92F(7A). In all cases not falling within para. 72F(7D)(a), the Chairman must accept the application (para. 92F(7D)(b)).

Accordingly, I reject Telecasters' argument founded on s.92F.

Telecaster's second argument was based on sub-section 92FAA(1) which authorises the Tribunal to approve a transaction only where an application in relation to that transaction is "made in accordance with s.92F". By sub-s. 92FAA(13), the Tribunal is forbidden to approve a transaction in relation to which s.92F applies except as provided by s.92FAA. Sub-section 92FAA(2), which contains the Tribunal's power to refuse an application (but only after an inquiry (sub-s. 92FAA(6)), relates only to applications "so made", that is to say "made in accordance with s.92F" as provided in sub-s. 92FAA(1). Telecasters' submitted that an application which was made out of time was not made in accordance with s.92F.

At first glance, the words of sub-s. 92FAA(1) seem to lend force to this submission. It does, however, seem surprising that, if the submission is correct, an application for approval could be neither approved nor refused but must be left to continue in a legislative limbo. An indication that this was not contemplated is perhaps to be found in s.92N, which relates the Tribunal's power to order divestitute in respect of such acquisitions as are now in question to contravention of s.92FAA, not s.92F.

Ultimately, it becomes necessary to see what is meant by the phrase "made in accordance with s.92F" when used in sub-s. 92FAA(1). I accept that, as Telecasters asserts, prima facie that phrase seems to require compliance in every respect with s.92F, including its requirements with respect to time. However, I have concluded that that is not the sense in which the phrase is used in s.92FAA.

An application for approval must be "in accordance with the form approved by the Tribunal": para. 92F(3)(b) and sub-s. 92F(7A). An application is taken "not to be lodged in accordance with that paragraph or sub-section unless it is accompanied by a statutory declaration": sub-s. 92(7B). Failure by a prescribed party either to give a notice "in accordance with" para. 92F(3)(a) or to lodge an application "in accordance with" para. 92F(3)(b) prior to a transaction constitutes a separate offence each day until a modified notice is give after the transaction or an application in relation to the transaction is lodged "in accordance with sub-s. (7A)": para. 92F(7E)(d).

Paragraph 92F(7E)(d) cannot sensibly be read as meaning that, if a prescribed party waits long enough and does nothing, the offences will cease, i.e. after 28 days. Nor can it mean that, after 28 days, the offences can never be terminated. It must, therefore, be possible to lodge an application for approval "in accordance with sub-s. (7A)" within the meaning of para. 92F(7E)(d) after the time limited by sub-s. 92(7A). Similarly, under sub-s. 92F(7F), a failure "to comply with sub-s. (7A)" can be terminated, again obviously after the time limited by that sub-section for compliance.

Section 92FAA is complementary to s.92F. In my opinion, an application may be "made in accordance with s.92F" for the purposes of sub-s. 92FAA(1) although lodged out of time. As earlier noted, sub-s. 92F(7C) does not presently fall for consideration.

Accordingly, I have concluded that Telecasters' contentions fail. This conclusion makes it unnecessary to consider other questions, for example, relating to Telecasters' locus standi or the availability of the relief claimed in these proceedings on the basis of its contentions.

Application G45 of 1983 has already been dismissed. The order of the Court is that Applications G97 and G99 of 1983 be dismissed. Telecasters must pay Portfolio's taxed costs of and incidental to the hearing before me last Tuesday and Wednesday, 15 and 16 November 1983, and otherwise of and incidental to Application G99 of 1983. Otherwise, the costs of all parties of and incidental to Applications G45 and G97 of 1983 are reserved. Telecasters may file and serve written submissions and any affidavits or other material with respect to the orders for costs which it seeks on or before Friday 25 November 1983 and the other parties may respond in similar fashion on or before Tuesday 29 November 1983. If any party desires that Applications G45 or G97 of 1983 be restored for further argument as to costs, the District Registrar must be notified in writing on or before Wednesday, 30 November 1983.