TVW Enterprises Ltd v Australian Broadcasting Tribunal
[1985] FCA 100
•20 MARCH 1985
Re: TVW ENTERPRISES LIMITED
And: AUSTRALIAN BROADCASTING TRIBUNAL and PERTH TELEVISION LIMITED
No. WA G12 of 1985
Practice and Procedure
COURT
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Toohey J.
CATCHWORDS
Practice and Procedure - costs - unsuccessful applicant - whether usual order for costs should be made
HEARING
PERTH
#DATE 20:3:1985
ORDER
1. The applicant pay the second respondent's costs of the application.
JUDGE1
On 8 February 1985 I dismissed an application by TVW Enterprises Limited, the applicant, seeking the review of decisions made by the Australian Broadcasting Tribunal, the first respondent, relating to the standing of Perth Television Limited, the second respondent, in an inquiry under the Broadcasting and Television Act 1942. Following some debate by counsel as to the appropriate order by way of costs, I gave liberty to the parties to apply as to the costs of the application. Perth Television seeks an order that TVW Enterprises pay its costs while TVW Enterprises seeks an order that Perth Television pay its costs, either wholly or in part. The Tribunal has made no application for costs.
In the ordinary course Perth Television, as the successful party, would be entitled to an order for costs against TVW Enterprises as the unsuccessful applicant. Is there any reason why the Court should depart from that rule in the present case? The application to this Court that failed sought the review of two decisions. The first was that TVW Enterprises should, by a particular date and time, lodge any submissions it wished to make as to the standing of Perth Television in the inquiry. The second was that Perth Television was a person directly concerned in the proceedings and that TVW Enterprises' request for an opportunity to put oral submissions and be heard on the matter be denied
As appears from my reasons for judgment on 8 February 1985, the Court dealt only with the substantial point whether Perth Television was a person directly concerned in the proceedings. A decision on that point was sufficient to dispose of the matter, each party being in a position to make oral and written submissions to the Court on the point of substance.
I am quite unable to agree with TVW Enterprises' argument that the Court should, for the purpose of determining the question of costs, have some regard to the conduct of the Tribunal in regard to its alleged failure to give the applicant an adequate opportunity to put its case in relation to the standing of Perth Television in the inquiry. The fact is that, for good reason, this matter was not pursued before the Court and no costs were incurred in arguing the point. It may well be said that TVW Enterprises incurred costs in the preparation of its application to the Court and that is no doubt the position. But even if the Court were entitled to draw a conclusion from the materials before it that the Tribunal erred in failing to accord natural justice to TVW Enterprises, Perth Television could not be held liable in costs to the applicant in that regard unless it had, before this Court, sought positively to uphold the decision of the Tribunal in that respect. This it did not do.
The only other justification offered by TVW Enterprises for a departure from the ordinary rule that an unsuccessful party pays the costs of the successful party is that in certain respects I did not agree with each step by which the Tribunal reached its decision that Perth Television was a person directly concerned in the proceedings before it. But Perth Television was successful in upholding the relevant decision of the Tribunal and in no way can it be said that there was an issue before the Court on which the applicant succeeded and the second respondent failed. If that had been the case, it may have been appropriate to consider some order whereby Perth Television was awarded less than the entire costs of the application to this Court. But, as I have said, this was not the case and in my view there is no justification for departing from the ordinary rule.
The applicant, TVW Enterprises, must pay the costs of the second respondent, Perth Television.
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