TVW Enterprises Ltd v Australian Broadcasting Tribunal - [1985] FCA 23

Re: TVW ENTERPRISES LIMITED
And: AUSTRALIAN BROADCASTING TRIBUNAL and PERTH TELEVISION LIMITED
No. WA G12 of 1985
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Toohey J.

CATCHWORDS

Administrative Law - judicial review - Australian Broadcasting Tribunal that company "directly concerned" in proceedings before the Tribunal - whether error of law by Tribunal - whether application made by an interested person within the meaning of s.82 of the Broadcasting and Television Act - meaning of "directly concerned" in s.22 of the Act

Administrative Decisions (Judicial Review) Act 1977 s.5(1)

Broadcasting and Television Act 1942 ss.17(1), 22, 81(3), 82, 83(5)

Acts Interpretation Act 1901 para. 22(a)

HEARING

PERTH
#DATE 8:2:1985

ORDER

The application is dismissed.
The parties have liberty to apply as to the costs of the application.
The applicant is to file and serve on the solicitors for the second respondent within 14 days any submissions it wishes to make in respect of the costs of the application.
The second respondent file and serve on the applicant's solicitors within 14 days thereafter any submissions it wishes to make in response thereto.

JUDGE1

The Australian Broadcasting Tribunal is conducting an inquiry into the grant of a commercial television licence for the Perth metropolitan area. That inquiry began in Perth on Tuesday 5 February though there had been preliminary hearings late last year.

Perth Television Limited, among others, seeks a grant of that licence in its favour. It is said to be a person directly concerned in the proceedings before the Tribunal in the terms of s.22 of the Broadcasting and Television Act 1942 ("the Act"). TVW Enterprises Limited, the holder of an existing commercial television licence, is said to be a person having an interest in the proceedings before the Tribunal, again in accordance with s.22 of the Act.
TVW Enterprises has applied to the Federal Court, pursuant to the provisions of the Administrative Decisions (Judicial Review) Act 1977, to review certain decisions made by the Tribunal relating to the standing of Perth Television in the inquiry. The Tribunal has been joined as a respondent to that application as has Perth Television. Through counsel the Tribunal indicated an intention to abide by any decision of the Court; it did not wish to make any submissions on the matters under debate. The application seeks the review of two decisions formulated in these terms:

"(a) made the 22nd January 1985 pursuant to Section 17(1) of the Broadcasting and Television Act, 1942 ("the Act") directing the Applicant ("TVW") to lodge submissions that it may wish to

make on the question of the party status of the Second Respondent ("PTL") by telex or facsimile transmission on or before 5 pm Sydney time (2 pm Perth time) on Wednesday the 23rd January 1985; and further

(b) made the 24th January 1985 whereby Tribunal decided that PTL was a

person directly concerned in the proceedings and that TVW's application for an

opportunity to put oral submissions and be heard on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1985] FCA 23
Decision Date: 08 FEBRUARY 1985

CaseChat Overview and Summary

In the case of TVW Enterprises Ltd v Australian Broadcasting Tribunal, the dispute involved an application by TVW Enterprises Ltd for judicial review of a decision made by the Australian Broadcasting Tribunal (ABT). The crux of the matter was whether the ABT had erred in law and whether the application for review was made by an interested party within the meaning of section 82 of the Broadcasting and Television Act. The case was heard in the Federal Court of Australia.

The central legal issues that the court had to address were whether the ABT had made an error of law in its proceedings and if TVW Enterprises Ltd qualified as a party that was "directly concerned" within the scope of section 22 of the Broadcasting and Television Act. This qualification was crucial to determine the standing of TVW Enterprises Ltd to seek judicial review. The court also needed to interpret the phrase "directly concerned" to ascertain if the application was indeed made by an interested party.

The court found that the ABT had not committed any error of law in its decision-making process. Furthermore, it was determined that TVW Enterprises Ltd did not meet the criteria of being "directly concerned" as defined by section 22 of the Act. This lack of direct concern meant that the company did not have the requisite standing to apply for judicial review. Consequently, the court dismissed the application by TVW Enterprises Ltd for judicial review of the ABT's decision. The court also outlined the procedural steps for the parties to follow in relation to the costs associated with the application.

The final orders included the dismissal of the application, granting the parties liberty to apply for costs, and setting a timeline for the exchange of submissions regarding those costs. Specifically, TVW Enterprises Ltd was required to file and serve any submissions on the second respondent's solicitors within 14 days, followed by the second respondent's opportunity to respond within another 14 days.

Orders

Orders of the court

The application is dismissed.

The parties have liberty to apply as to the costs of the application.

The applicant is to file and serve on the solicitors for the second respondent within 14 days any submissions it wishes to make in respect of the costs of the application.

The second respondent file and serve on the applicant's solicitors within 14 days thereafter any submissions it wishes to make in response thereto.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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