Re Tvw Enterprises Limited v Australian Broadcasting Tribunal and Perth Television Limited [1985] FCA 18 (8 February 1985)

FEDERAL COURT OF AUSTRALIA

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
8:2:1985

ORDER

1. The application is dismissed.

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

3. 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.

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

DECISION

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.

2. 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.

3. 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 the matter be denied
and further that the Tribunal did not
intend to allow further submissions to
be put on this matter when the hearing
resumes".

4. At the time it lodged its application for review, TVW Enterprises also filed a motion seeking a stay of the hearing of the inquiry until the outcome of the substantive application. That motion was before the Court late last week and early this week. In view of the urgency of the matter and the availability of a hearing date yesterday, I directed that the matter proceed immediately to the hearing of the substantive application. A time table was set for the hearing including the filing of written submissions.

5. When the application came before the Court yesterday, I asked Mr. Goldberg Q.C., senior counsel for the applicant, whether the applicant intended to pursue the challenge to the decision made on 22 January 1985 and to that part of the decision made on 24 January 1985 relating to the matter of further submissions. The challenge made to the earlier decision and to those parts of the later decision relating to the making of further submissions to the Tribunal was largely on the basis that there had been a breach of the rules of natural justice in that the applicant was denied a reasonable opportunity to present to the Tribunal its case that Perth Television was not a person directly concerned in the inquiry. As the point of substance was before the Court, with counsel having the opportunity to present submissions on the matter, there seemed little to be gained by hearing argument on and determining the question whether the applicant had been denied natural justice by the Tribunal. All relevant material was before the Court and there were no disputed questions of fact to be resolved.

6. Counsel for the applicant agreed that there was nothing to be gained by pursuing the challenge to the decision of 22 January 1985 and to those parts of the later decision to which I have referred. He made no submissions on those matters other than to reserve the applicant's position on the question of costs. Mr. Shand Q.C., senior counsel for the second respondent, agreed that the Court should deal only with the point of substance viz. whether Perth Television was a person directly concerned in the inquiry. No challenge was taken by either of the respondents to the jurisdiction of the Court to entertain the application. It was not in issue that each decision was a "decision to which this Act applies" within sub-s.3(1) of the Judicial Review Act. In the result I am able to come immediately to the point of substance.

7. The inquiry was instituted by the Tribunal following a notice by the Minister of State for Communications, pursuant to s.82 of the Act, inviting applications for or written submissions relating to the grant of a licence for a commercial television station within the Perth Metropolitan Television Area. Section 82 contemplates that "interested persons" may lodge with the Tribunal applications for the grant of the licence in question or may lodge written submissions relating to the grant of that licence.

8. Perth Television was not incorporated until 10 October 1984. However on 28 September 1984, in response to the notification under s.82 of the Act, an application was lodged with the Tribunal for the grant of the licence. It is convenient to refer to this document as Perth Television's application though to do so is, in a sense, to beg the very question that the Court has to decide.

9. Sub-section 82(1) of the Act provides for the lodging of applications "in accordance with a form approved by the Minister". The relevant form is ABT 56. The document in Court is a photocopy application occupying more than 100 pages. The matters to which it refers are dictated by the various sections in the approved form where provision is made, in some cases for identifying the appropriate answer to a question and in other cases for the provision of necessary information.

10. Put shortly, the applicant's case was that, on the proper construction of the application and having regard to the factual background as disclosed by the material before the Court, the application was an application made by Perth Television at a time when that company did not exist. A company not yet incorporated could not be an "interested person" within the meaning of s.82. Hence the decision of the Tribunal that Perth Television was a person directly concerned in the proceedings was in error. Although the application relied upon paras (e), (f) and (h) of sub-s.5(1) of the Judicial Review Act, the question is essentially one whether the Tribunal was wrong in law in the decision it made.

11. To determine this question it is necessary to say something about the circumstances in which the application was made and about the application itself. On 25 September 1984 (that is before the incorporation of Perth Television) there was a meeting of what was described as the sponsors of the proposed company which was identified as "Perth Television Limited (In Process of Incorporation)". The chairman of the meeting was Mr. John Pye. At that meeting it was resolved that "the company apply to the Australian Broadcasting Tribunal for the third commercial television licence to serve the city and environs of Perth". Mr. Pye, "as Chairman of the meeting", was authorised to sign the undertaking required by sub-s.83(5) of the Act and what was described as the "Section 12 Application and Certification". The reference to Section 12 was a reference to a section of the application form which requires the signatory to certify that the statements in the application and appendices are correct. It also requires certification that the application is submitted pursuant to a resolution of directors of the applicant company or resolution of a meeting of the sponsors of the proposed company.

12. What has been described as the Section 12 application was signed by Mr. Pye on 25 September 1984 as "Chairman", attaching thereto as "the minute of resolution of a meeting of the sponsors of the proposed company" the minutes of a meeting held that day. The face sheet describes the application as "Prepared and submitted by: PERTH TELEVISION LIMITED (a company being formed)". The name of the applicant (s1.1) appears as "PERTH TELEVISION LIMITED (a company being formed)". Under s.2, which contemplates that the applicant may be a company or may be applying on behalf of a company to be formed, Perth Television Limited appears as the proposed name of the company and Perth as its proposed place of incorporation. Under s.5 it is said that the company "is in the process of formation and has not traded. It therefore has no financial records". Under s.10 of the application, relating to sub-s.83(5) of the Act, Mr. Pye gave an undertaking "for and on behalf of the applicant PERTH TELEVISION LTD" and signed the undertaking as "Chairman". I have already dealt with s.12 of the application and there is nothing more to be said about the form itself.

13. Counsel for the second respondent did not assert that the application was made or lodged by Perth Television. Since the company did not at the time exist, he could hardly do so. In Mr. Shand's submission, s.82 contains machinery for notifying interested persons that they may lodge with the Tribunal applications for the grant of a licence or written submissions relating to the grant of the licence. The interested person who lodges an application need not be the applicant for the licence and, by reason of sub-s.81(3), a licence for a commercial television station may not be granted except to a company formed within the limits of the Commonwealth or a Territory and having a share capital. Counsel pointed out that it may well be the case that, when applications are called for, a company is in the process of incorporation. And the form ABT 56 clearly contemplates that there may be an application on behalf of a company to be formed.

14. In Mr. Shand's submission, the application must be treated as having been made by Mr. Pye as an interested person representing a group of sponsors, the person in respect of whom a licence was sought being identified as Perth Television Limited, a company being formed.

15. Mr. Goldberg referred the Court to a line of authorities, Australian and English, beginning with Kelner v. Baxter (1866) LR 2CP 174 and including such well known decisions as Summergreene v. Parker [1950] HCA 13; (1950) 80 CLR 304 and Black v. Smallwood [1966] HCA 2; (1966) 117 CLR 52. With the greatest respect to counsel, I have not found these authorities of assistance. They are in the main concerned with contracts made by promotors of companies to be formed and with rights and obligations under pre-incorporation contracts. This is a very specialised area of the law and I see no justification for importing the principles to be derived from those cases into what I regard as a quite different area of the law. In the present application the Court is not concerned with the rights or obligations of Mr. Pye or Perth Television under contracts made before the incorporation of that company. And although at a meeting of directors of Perth Television held on 12 November 1984 it was resolved to ratify and confirm the action taken by Mr. Pye in making an application to the Tribunal, I do not think the Court need be concerned with decisions relating to the purported ratification of contracts made or acts done prior to incorporation.

16. The Court is concerned with the decision of the Tribunal that Perth Television is a person directly concerned in the proceedings before it. Whether that decision is correct, it seems to me, depends upon the language of the Act and the proper construction of the application made to the Tribunal. The Tribunal delivered reasons for its decision and, so far as relevant to the present application, they may be summed up in this way. The application in question was made in accordance with the form approved by the Minister. The applicant was not a company to be formed; it was Mr. Pye acting on behalf of the sponsors of a company to be formed. Although s.1 of the application identified the applicant as "PERTH TELEVISION LIMITED (a company being formed)", there was no legal obstacle to interpreting the name as "a convenient shorthand for the sponsors on whose behalf Mr. Pye completed and signed section 12 of the form". The original application being valid, it was open to the Tribunal to give effect to what was proposed and to substitute as the applicant for a licence the corporate body once it came into existence.

17. In my view the decision of the Tribunal that Perth Television was a person directly concerned in the proceedings was correct though, with respect, I am not to be taken as agreeing with each step by which the Tribunal reached that decision. It is important not to lose sight of the relevance, for the purposes of the Act, of a decision that a person is directly concerned in proceedings before the Tribunal. Its relevance stems from s.22 of the Act which authorises such a person to "examine witnesses and address the Tribunal on behalf of that person". TVW Enterprises' concern is to prevent Perth Television having access to documents which it (TVW Enterprises) regards as confidential when, in the words of Mr. Carrivick who swore the affidavit in support of the application for review, Perth Television "may not be a proper party to the proceedings". The word "party" is not used by the Act itself but, in its reasons for decision, the Tribunal referred to those persons who were directly concerned in the proceedings and other persons having an interest therein collectively as "the parties to the inquiry". Directions issued by the Tribunal imposed obligations on "each party". This, no doubt, is convenient terminology for the Tribunal to employ and nothing in these reasons is intended to suggest otherwise. But, for the purposes of the present application, the terminology may tend to obscure the real question for determination.

18. There is no doubt, as Mr. Goldberg submitted, that Form ABT 56 cannot control the language or operation of the Act. But in my view there is nothing in the form inconsistent with the Act nor is there anything in what I have described as Perth Television's application which offends against the Act.

19. On its proper construction, the application was not made by Perth Television. It was made by Mr. Pye as chairman of a group of sponsors whose proposal was that a licence be granted to Perth Television which was then in the course of incorporation. The fact that the application contained references to Perth Television Limited, even describing it in s.1 as the applicant, does not detract from this conclusion. Whenever the company was mentioned, it was as a company to be formed or in the process of formation. The application made it clear to the Tribunal that it was Perth Television for which a licence would be sought but that the company had not yet come into existence. I find no obscurity in s.12 of the application, notwithstanding that the resolution of the meeting held on 25 September 1984 was that "the company" apply for a licence. That meeting authorised Mr. Pye to sign the application, certification and undertaking and undoubtedly this was done because there was not yet a company to execute those documents.

20. It may be noted in passing that in Barrier Reef Broadcasting Pty. Ltd. v. Minister for Post and Telecommunications (1978) 19 ALR 425 applications for a commercial broadcasting licence made by a syndicate acting for a company to be formed and by an individual on behalf of a company to be formed do not seem to have been regarded by Aickin J. or by counsel appearing as unauthorised by the Act.

21. Mr. Pye was an interested person within the meaning of s.82 as indeed were the other sponsors whom he represented. In my opinion it was open to him to make an application for the grant of a licence, indicating to the Tribunal that in the event of a successful application the licence was to issue to a company then being formed. Having regard to the provisions of sub-s.81(3), to which reference has already been made, a licence could not be granted except to a company. But there is nothing in s.82 that confines interested persons to corporations. It is only the grant of a licence that is so confined by reason of sub-s.81(3).

22. When Perth Television was incorporated on 10 October 1984, it was a person directly concerned in the proceedings. It was a person as that term is defined in para. 22(a) of the Acts Interpretation Act 1901 and it was a person in respect of whom the grant of a licence was sought pursuant to the application made by Mr. Pye. The submissions of the second respondent drew a distinction between the "ultimate applicant" (Perth Television) as distinct from the person lodging the application (Mr. Pye). I do not think it is necessary to resort to that terminology. It is enough to find, as I do, that the application was made by Mr. Pye in contemplation that a company, Perth Television Limited, would be formed and that a licence would be sought for that company. In consequence the company was a person directly concerned in the proceedings before the Tribunal.

23. Whether it is necessary that Perth Television become an applicant for the licence in its own name, whether the Tribunal may substitute the company for Mr. Pye as applicant, whether sub-s.82(5) empowers the Tribunal to grant an extension of time for the lodgment of a particular application after an inquiry has begun are not questions that call for answers in the present application.

24. The application will be dismissed. I shall hear from counsel on the question of costs.