Young & Rubican Cowrey Pty Ltd v Australian Broadcasting Tribunal

[1985] FCA 24

CATCHWORDS

Administrative Law - Australian Broadcasting Tribunal

- Regulation as to foreign content of advertising -

Saatchi’s Case - position of a regulation declared

ultra vires,	when that declaration is the subject of
an appeal

YOUNG E; RUBICAN COWDREY PTY. LIMITD v AUSTRALIAN

BROADCASTING TRIBUNAL

No. G 25 of 1985

Morling J.

8 February 1985

Sydney

IN THE FEDERAL COURT OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY	1 No. G 25 of 1985
)
GENERAL DIVISION	)

BEXWEEN:

YOUNG & RUBICAN COWDREY

PTY. LIMI'IED

Applicant

AND :	AUSTRALIAN	BROADCASTING
TRIBUNAL

Respondent

O R D E R

JUDGE MAKING ORDER : Morling J.

DATE OF ORDER : 8 February 1985

WHERE MADE : Sydney

THE COURT ORDERS AS FOLLOWS:

1. Application for interlocutory relief dismissed.

I

IN THE F'EDEXAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY	No. G 25 of 1985
GENERAL DIVISION

BETWEEN:

YOUNG & RUBICAN COWDREY

PTY. LIMITED

Applicant

AND:

AUSTRALIAN BROADCASTING

TRIBUNAL

Respondent

! MORLING J. 8 February 1985

REASONS FOR JUDGEWC

The applicant seeks interlocutory orders against the

Australian Broadcasting Tribunal for the purpose of, in effect,

i

!	restraining the Tribunal .from seeking to prevent the broad- casting by television stations of an advertisement for Volvo
motor vehicles. The applicant carries on business as an
advertising agent and Volvo (Australia) Pty. Limited is one of
its clients. On behalf of Volvo it has produced a television
commercial which is to be used in an Australia wide campaign
for the promotion of its vehicles. It is intended that the
first commercial should be telecast on the evening of Sunday, 10 February next. As I understand the evidence the proposal is that the commercial should be screened on television.stations in all mainland capital cities.

,I	2 .
l

The relevant commercial contains more than 20%

overseas content. It is the Tribunal's view that such an

advertisement does not comply with standards that have been

determined by it in relation to the broadcasting or televising

of cbmmercials. The licensee of a television station is

obliged to comply with such standards laid down by the Tribunal

- see s.lOO(4) of the Broadcastinq and Television Act 1942.

"here is no doubt that the proposed Volvo advertise-

ment does not comply with the Tribunal's standards, since it

contains more than 20% overseas content. However, as I

understand the evidence, there is no other feature about the

advertisement which brings it into non-compliance with the

standards. However, in Saatchi & Saatchi Coptom (Vic) Ptv.

Limited v Australian Broadcastinq Tribunal & Anor.. ( 2 3 November

1984) 'Beaumont J. held that the determination of a standard

requiring that an advertisement contain not more than. 20%

!	overseas content was beyond the powers confer.red upon the
Tribunal by s.lOO(4) of the Act. His Honour further held that
no other provision in the Act provides an alternative source of
power. An &ppeal against his Honour's decision has been filed
and is listed for hearing in this court on 18 February.

The Volvo commercial which it is proposed to telecast

has been submitted to the Commercials Acceptance Division (CAD)

of the Federation of Australian Commercial Television Stations

("FACTS") for approval to be shown on commercial television

5 .

stations throughout Australia. FACTS has granted its approval to the commercial and has allocated a FACTS number to it. The

practice in the advertising industry is that until a FACTS

l number is allocated to an advertisement, thus clearing it for

i	broadcasting, it cannot be submitted to television stations for
i
!
l	broadcasting.
i

Immediately following the allocation. of the FACTS

number to the Volvo commercial the applicant submitted a tape

of the advertisement to television stations for subsequent

broadcasting. The Volvo advertisement appears to have been

!

accepted by all television stations to which it was submitted.

There is evidence that the cost of the advertising campaign

!

’! featuring the advertisement is approximately $400,000 and firm

bulk bookings have been made for the televising of the

!

commercial.

The applicant fears that action by the Tribunal may

deter the managers of commercial television stations from

televising the commercial. The action taken by the Tribunal

consists of the sending of telexes to commercial television

stations which are intending to broadcast the commercial. In a

telex sent to television stations last Wednesday the Tribunal

said, inter alia:

“The Tribunal has considered the matter again

in the light of the advice from FACTS that the

completed commercial has been submitted to CAD, and

4.

that FACTS has received legal advice to the effect

that it has no option other than to allocate an

acceptance number. The Tribunal is still of the

view that as a result of the use of greater than 20%

imported footage, the commercial does not meet

television program standard 39 as amplified by

Tribunal circular letter T10. I am to say that if

the particular commercial is televised by your

station the matter will be considered by the

Tribunal at the next review of the station’s licence

and in that context the Tribunal will take into

account the provisions of Part 3.4 of Tribunal

Practice Note PRN 06 of 20 December 1984. “

The reference to program standard 39 and circular

letter T10 is a reference to the documents the validity of

which were considered by Beaumont J. in his decision in the

Saatchi Case. His Honour declared that those documents were

void, but orders quashing them were stayed pending the hearing

of the appeal to the Full Court. I may be wrong in that

respect but that is what I understand to be the effect of the

court’ s order.

Part 3.4 of Tribunal Practice Note PRN 06 of 20

December 1984 is in the following terms:

“3.4 Where the Tribunal is satisfied that a breach

1 by a licensee was due to any one of the following:

(a) reasonable mistake;

(b) reasonable r liance on i formation

i supplied by another person; or

l	(c)	the act or default of another person, or any accident or other cause beyond the
licensee’s control; and the - licensee
took reasonable precautions and
exercised due diligence to avoid the breach;

!

i

5 .

the breach will only be raised at a subsequent

licence renewal inquiry if it is one of a number of

breaches or alleged breaches which may be relevant, when taken as a whole, to the question of whether a licence should not be renewed, should be renewed for

a period of less than three years, or should be

renewed subject to	a condition relating to those
breaches. "

In a subsequent telex despatched to the general

managers of commercial television stations early this afternoon

the Tribunal said:

l

"The Tribunal's telex of 6 February was not

intended and should not be regarded as an attempt to

prevent stations from showing the Volvo commercial.

Nor should that telex be regarded as threatening

sanctions under the Act if the Volvo commercial is

shown. However, the Tribunal considers it proper to

drawfothe attention of licensees the particular circumstances of this commercial, having regard to the Tribunal's standards pending the outcome of the

appeal. The Tribunal wishes to make it clear that

in its view it is a matter of individual judgment

for each licensee as to whether, pending the outcome

of that appeal and in the light of the information

provided by the Tribunal concerning this commercial,

the commercial should be televised.

In the event that the appeal against Beaumont

J's decision is successful the Tribunal would

consider any transmission of the Volvo commercial by

a licensee in accordance with its normal procedures

as set out in Practice Note PRN 06."

I would have been minded to grant interlocutory relief

had I been of the opinion that the respondent was threatening

sanctions against television stations if they broadcast the

Volvo commercial. However, in the light of the telex sent

this afternoon, I do not think that I should find that any such

6.

threat exists. It is true that the concluding part of the

telex states that in the event that the appeal against Beaumont

J's decision is successful the Tribunal would consider any

transmission of the Volvo commercial by a licensee in

accordance with the procedures set out in Practice Note 06.

But I do not think that I should make the assumption that the Tribunal will act unreasonably if and when it has to consider the position of a particular licensee who may have broadcast

the Volvo commercial. Practice Note 3.4 provides that if the

Tribunal is satisfied that a breach by a licensee was due to,

inter alia, a reasonable mistake or reasonable reliance on

information supplied by another person, the breach will only be

raised at a subsequent licence renewal inquiry if it is one of

a number of breaches which; when taken as a whole, may be

relevant	to the question whether the licence should not be
renewed.

As the law presently stands, it is as declared in the

decision of Beaumont J. Licensees of television stations are

entitled, indeed obliged, to treat his Honour's judgment as

correctly stating the law. In these circumstances, should his

Honour's decision be subsequently reversed it is unthinkable

in my view that-the Tribunal would not be satisfied that the

broadcasting of the Volvo commercial by a licensee was due to

reasonable reliance on his Honour's judgment. In my opinion

that judgment would come within the phrase "information

supplied by another person" as that phrase is used in Practice

i

7.

Note 3 .4 (b). Moreover, I would think it inconceivable that

the Tribunal would take into account adversely to a licensee

any action taken by it n conformity with and in reliance upon

the decision of Beaumont	J.	until it is reversed, if indeed it
is reversed.

I should say that whilst it would be quite

inappropriate for me in this application to express any view as

to the correctness of his Honour's decision, it is plain from a

reading of his careful reasons that they might find acceptance

with the Full Court. I make this observation only for the

purpose of supporting the view which I have already expressed,

if such support be necessary, that licensees of commercial

television stations are entitled to treat his Honour's decision

as correctly stating the law pending the determination of the

hearing in the Full Court.

In these circumstances I would think it highly

unlikely that any television station would decline to broadcast

the Volvo commercial for fear that by doing so it might

prejudice a future application for renewal of its licence.

As I have already pointed out, the telex sent.this

afternoon states that the Tribunal should not be regarded as

attempting to prevent stations from showing the commercial.

Nevertheless I can understand the concern that has caused the

applicant to approach the court. It is apparent from Mr

8.

Hutching's affidavit sworn today that the executives of Channel

9 and Channel 10 in Sydney and executives of television

!

i

stations in other capital cities are in some doubt as to the

action they should take in response to the telexes which they

t

have received from the Tribunal.

Whilst I do not think the case has been made out for

the grant of interlocutory relief, I would hope that what I

have said in these reasons would remove any uncertainty

licensees may have had as to the propriety of acting in

accordance with the decision in Saatchi's Case pending the

hearing of the appeal to the Full Court. For these reasons I

do not think I should qqnt the application for interlocutory

i

relief.