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Federal Court of Australia |
COURT
IN THE FEDERAL COURT OF AUSTRALIACATCHWORDS
Broadcasting - Broadcasting Act 1942 (Cth.), Part IIIC - decisions of the Minister to approve or refuse to approve implementation plans submitted by television licensees under Part IIIC of the Act - whether the Minister misconstrued the objects of Part III - whether the Minister failed to have regard to the desirability of co-ordinating the activities of the licensees in the Approved Market C - whether certain implementation plans were in accordance with the guidelines published by the Minister - whether the implementation plans contained details of the stages and timetable proposed by the licensees - whether the decisions were unreasonable in the sense that no reasonable person could have made them in the proper exercise of the powers conferred by the Act.Administrative Law - Administrative Decisions (Judicial Review) Act 1977 - decisions of the Minister to approve or refuse to approve implementation plans submitted by television licensees under Part IIIC of the Broadcasting Act 1942 (Cth.) - meaning of the obligation "to have regard to" specified matters - observations on the distinction between directory and mandatory requirements.
Company Law - use of the company seal - whether the reference in a Certificate of Lodgement to the common seal having been affixed is to be read as requiring the affixing of the common seal to satisfy the requirements as to formality in the Articles of Association - the rule in The Royal British Bank v Turquand - whether the rule is based on the ordinary principles of the law of agency or a rule unique to company law - Companies Code, s. 68A - relationship between the rule in Turquand's case and s. 68A of the Code.
Companies Clauses Consolidation Act 1845 (UK)
Companies Act 1936 (NSW)
Broadcasting Act 1942 (Cth.)
Companies Act 1961 (NSW)
Administrative Decisions (Judicial Review) Act 1977
Companies (NSW) Code 1981
Broadcasting Amendment Act 1987
Broadcasting Amendment Act (No. 3) 1987
Broadcasting (Ownership and Control) Act 1987
Broadcasting Legislation Amendment Act 1988
Commercial Radio Coffs Harbour Ltd. v Fuller [1986] HCA 42; (1986) 161 CLR 47
Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514
The Queen v Toohey; Ex parte Meneling Station Pty. Ltd. [1982] HCA 69; (1982) 158 CLR 327
Rathborne v Abel (1964) 38 ALJR 293
Minister for Aboriginal Affairs v Peko-Wallsend Ltd. [1986] HCA 40; (1986) 162 CLR 24
Turner v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388
GTE (Aust.) Pty. Ltd. v Brown (1986) 14 FCR 309
TVW Enterprises Ltd. v Duffy (1985) 62 ALR 63
McRae v Coulton (1986) 7 NSWLR 644
Hunter Resources Ltd. v Melville [1988] HCA 5; (1988) 164 CLR 234
Formosa v Secretary, Department of Social Security [1988] FCA 291; (1988) 81 ALR 687
Ex parte Hestelow; Re Claye (1967) 87 WN (Pt. 1) (NSW) 184
Corporate Affairs Commission v Drysdale [1978] HCA 52; (1978) 141 CLR 236
Winton v Jolliffe (1988) 78 ALR 187
Elders Trustee & Executor Co. Limited v E.G. Reeves Pty. Ltd. [1987] FCA 332; (1987) 78 ALR 193
County of Gloucester Bank v Rudry Merthyr Steam and House Coal Colliery Co. (1895) 1 Ch 629
The Royal British Bank v Turquand [1856] EngR 470; (1856) 6 El & Bl 327; 119 ER 886
The Registrar-General v Northside Developments Pty. Ltd. (New South Wales Court of Appeal, 1/11/1988, unrep.)
Bank of Columbia v Patterson's Administrator (1813) 2 Curtis 540
Fleckner v Bank of the United States (1823) 5 Curtis 437
Electricity Meter Manufacturing Coy. Ltd. v Manufacturers' Products Pty. Ltd. (1930) 30 SR (NSW) 422
Square D. Co. v C.J. Kern Contractors Inc. 318 SE 2d 527
Barclays Finance Holdings Ltd. v Sturgess (1985) 3 ACLC 662
Hungerfords v Walker (High Court, 9/2/1989, unrep.)
Fitzgerald v Masters [1956] HCA 53; (1956) 95 CLR 420
Watson v Phipps (1985) 60 ALJR 1 (PC)
HEARING
SYDNEYCounsel and Solicitors for the Applicant: Mr D.E. Horton QC and Mr Peter Comans
Instructed by: Messrs. Freehill Hollingdale and Page
Counsel and Solicitors for the First Respondent: Mr A.R. Emmett QC and Mr D. Yates
Instructed by: The Australian Government Solicitor
Counsel and Solicitors for the Second and Third Respondents: Mr A. Robertson
Instructed by: Messrs. Blake Dawson Waldron
Counsel and Solicitors for the Fourth and Fifth Respondents: Mr D.K. Catterns and Mr M. Dempsey
Instructed by: Messrs. Mallesons Stephen Jaques
ORDER
The application be dismissed. The applicant pay the costs of the respondents.
Note: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.
DECISION
In these proceedings, the applicant seeks orders for review under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") of four decisions by the predecessor in office of the first respondent as Minister for Transport and Communications. This is thus another illustration of an unfortunate practice in the institution of proceedings in this Court against Ministers as personae designatae. I shall identify the first respondent simply as "the Minister".2. The decisions of which review is sought were made by the Minister under the provisions of Part IIIC of the Broadcasting Act 1942 (Cth.) ("the Act"). Part IIIC was introduced into the Act by the Broadcasting Amendment Act 1987 ("the Amendment Act"), which received the Royal Assent on 5 June 1987 and came into operation on the sixtieth day thereafter (s. 2). Amendments to the provisions of Part IIIC were then made by the Broadcasting Amendment Act (No. 3) 1987. Other amendments were made by the Broadcasting Legislation Amendment Act 1988, some of the provisions of which are now in force; where appropriate, I have included them in these reasons in my treatment of the Act, they not being relevantly of a substantive character.
3. The applicant ("CTC") is the licensee of the commercial television service with the call sign CTC-7, Canberra, and is an affiliate of the Ten Network. The second respondent ("RVN") is the licensee of the commercial television service with the call sign RVN-2, Wagga. The fourth respondent ("WIN") is the licensee of the commercial television service with the call sign WIN-4, Wollongong, and is a Network Nine affiliate. Until events which occurred after the institution of this litigation, and, indeed, after the commencement of the hearing, the commercial television services at Orange and Dubbo were known respectively by their call signs CBN-8 and CWN-6. The fifth respondent ("CTS") had been the licensee of both services, but pursuant to an agreement dated 26 February 1988, it sold these interests to a member of the Paul Ramsay Group of companies, one of which, the third respondent ("Dylbout"), became the licensee. The parties to the agreement were CTS, Dylbout, Ramcorp Ltd., Paul Joseph Ramsay and RVN (the second respondent). The sale was completed on 14 October 1988. RVN is another member of the Paul Ramsay Group. These are affiliates of the Seven Network.
4. On or about 4 January 1989, that is to say after the hearing of the present proceedings had commenced, Dylbout applied to the Minister for consolidation of the licences for commercial television services with the call signs CBN-8 and CWN-6 and on 10 January 1989, acting pursuant to a direction of the Minister, the Australian Broadcasting Tribunal ("the Tribunal") revoked the licences for these two commercial television services and granted to Dylbout a new licence for a commercial television service with the call sign CBN, Central New South Wales. Also on 10 January 1989, the Minister granted to Dylbout a licence warrant in respect of the new licence; without the licence warrant, it would be unlawful to operate pursuant to the new licence. The four decisions in respect of which review is sought in these proceedings all predated those made in January 1989. During the course of the hearing, no amendment was sought to seek review of any of the January decisions.
5. I should add that Dylbout presently proposes to acquire all the issued shares in the second respondent, RVN, and to lodge in March 1989 an application for consolidation of the licence CBN with RVN-2, Wagga.
6. In Commercial Radio Coffs Harbour Ltd. v Fuller [1986] HCA 42; (1986) 161 CLR 47 at 57,
speaking of the Act as it then stood, Wilson, Deane and Dawson JJ described
the general intention of the Act as being:
(T)o maintain the provision of high quality and7. The general prohibition is imposed by s. 6A. The functions of the Tribunal include the granting, renewal, suspension, revocation and acceptance of surrender of licences (sub-s. 16 (1) (a)). Licences specify the area to be served pursuant to the licence. The applicant for a licence must undertake in writing to the Tribunal to provide an "adequate and comprehensive service pursuant to the licence" (sub-s. 83 (1) (b) and sub-s. 4 (6)). The provisions of the Act are deemed incorporated in the licence as terms and conditions (sub-s. 84 (1) (c), s. 129). Technical conditions are determined by the Minister, and where the Tribunal has determined that a licence should be granted, the Minister shall grant to the licensee "a licence warrant" which in the case of the commercial television licences involved here authorises the operation of particular radio communications transmitters for the purpose of transmission to the general public of television programs (s. 89D).
technically efficient broadcasting services which
are commercially viable and receptive to the
needs of the community. (The Act) does so by the
prohibition of broadcasting except under licence
granted subject to certain conditions.
8. In the second reading speech on the Bill for what became the Amendment Act, the then Minister described the Bill as providing the mechanisms for achieving the objectives (i) to provide increased services in most regional areas so as to be comparable to those in mainland capital cities where television viewers had access to three commercial television services and two national channels, in contrast to the position of five million Australians in regional areas presently with access only to one commercial and one national service (an objective described by the Minister as "equalisation"), (ii) to create larger and more viable markets in regional Australia (dubbed "aggregation") by (a) the combination of existing markets or service areas to provide a sufficient population base for three competitive services ("direct aggregation") or (b) allowing existing regional operators to provide two extra non-competitive services in their existing markets ("multi-channel services" or "MCS"), and (iii) to create competition by the expansion of service areas so as to bring into competition licensees who previously had monopolies in their service areas.
9. Part IIIC is entitled "Equalisation of Regional Commercial Television".
Section 94 sets out the objects of Part IIIC as follows:
94. The objects of this Part are that -The expression "regional area" is defined in sub-s. 93 (1) as follows:
(a) persons living in regional areas of
Australia have, as soon as practicable,
access to 3 commercial television services;
and
(b) commercial television stations in regional
areas of Australia -
(i) serve larger and commercially more
viable markets; and
(ii) provide television services on a
competitive basis.
93. (1) "Regional area" means an area outside the10. Some of these terms are themselves the subject of further definitions; in particular, "metropolitan service area" is defined in sub-s. 4 (1) as meaning "a service area in which is situated the General Post Office of the capital area of a State". "Service area" is relevantly defined, the parties agreed, not as appears in a definition in sub-s. 93 (1), but in sub-s. 4 (1) as meaning, in relation to a licence or the holder of a licence, the area to be served pursuant to the licence.
metropolitan service areas, and includes an
area in Tasmania but does not include an
area within the service area of a remote
licence.
11. Section 92 of the Act was amended by the Broadcasting (Ownership and Control) Act 1987. There is now a contravention of s. 92 if, and so long as, a person has a prescribed interest (a concept the subject of complex definition) in a licence whose "service area population" exceeds, or in each of two or more commercial television licences the aggregate of whose "service area population" exceeds, 60% of the number specified in a notice in force under s. 91AAD of the Act as the declared population of Australia. "Service area population" means the number specified in a notice in force under s. 91AAD as the population of the service area of the licence. As will appear, section 92 assumed some importance in this case, particularly in regard to the situation of the applicant.
12. Part IIIC sets up an elaborate statutory scheme to attain the objects set out in s. 94. The Minister is obliged by s. 94B to prepare a written plan identified in the legislation as "the Indicative Plan"; the Indicative Plan is to be published (s. 94E) and in the present case this was done on 26 August 1987. The Indicative Plan may be varied as permitted by s. 94F. The Indicative Plan must specify, inter alia, the licences that are to be regional licences for the purposes of Part IIIC and areas that are to be approved markets. Each approved market is to consist of the combined service areas of two or more regional licences. The present litigation concerns what is designated in the Indicative Plan of 26 August 1987 as "Approved Market C", an area embracing Dubbo, Orange, Canberra, Wollongong and Wagga. In respect of each licence that is to be in an approved market, the Indicative Plan also must specify what is called the "aggregation area" for that licence; an approved market may thus contain a number of aggregation areas (s. 94D). This is so with Approved Market C.
13. In determining the aggregation areas of licences in an approved market, the Minister is required to ensure that those areas will enable the provision of three commercial television services to the whole of the approved market (sub-s. 94D (2)). Provision is also made for the aggregation area of a licence not to include the existing service area of another licence which is eligible for what is described as "consolidation" (sub-s. 94D (3)). It will be necessary later to deal further with "consolidation", but is sufficient now to say that in order to allow for the creation of larger markets, pairs or groups of licences may be specifically identified as eligible for consolidation into one licence; the Indicative Plan published 26 August 1987 did this. It provided for four approved markets. Approved Market C comprised the combined service areas of the regional licences for CTC-7, RVN-2, WIN-4, CBN-8 and CWN-6.
14. The Indicative Plan also specified aggregation areas for Approved Market C. To put it broadly, the aggregation area of WIN-4 included Canberra and the areas served by CBN-8, CWN-6 and RVN-2; the aggregation area of CWN-6 and CBN-8 included Wollongong and Canberra; and the aggregation area of CTC-7 included Wollongong and the areas served by CBN-8, CWN-6 and RVN-2. The licences RVN-2, CBN-8 and CWN-6 were marked in the Indicative Plan as eligible for consolidation under ss. 94ZC and 94ZD.
15. (Sub-section 94ZC (1) provides a procedure for consolidation where two or more of such licences are held by the same licensee. In 1988, Dylbout acquired the licences for CBN-8 and CWN-6 and it was pursuant to this provision that there were taken in January 1989 the steps I have described as leading to the grant of the new licence for CBN Central New South Wales.)
16. In determining the areas that are to be approved markets, the Minister is obliged by sub-s. 94C (2) to have regard, inter alia, to the objects of Part IIIC, and to the desirability of an approved market "being able to support, as soon as practicable and in any case not later than the aggregation completion date (presently 31 December 1996) for the approved market, the provision of three competitive commercial television services to the whole of the approved market". The significance of this provision in the scheme of Part IIIC was stressed in the submissions to the Court.
17. Licensees of the relevant commercial television licences are put to an
election either for what is known as "immediate aggregation"
or "aggregation
via multi-channel services" (s. 94G). In the present case, the elections in
question were in favour of "immediate
aggregation"; the Minister is obliged
to give notice of the effect of these elections (s. 94J). Provisions are then
made for what
are described as "implementation plans" (ss. 94K, 94L). The
Minister is empowered to make guidelines for implementations plans,
by s. 94A.
This section is in the following terms:
94A.(1) The Minister may, by notice in writingOn 28 August 1987, there was published in the Gazette a notice under the hand of the Minister headed "Guidelines for Submission of Implementation Plans". In the present case, there was much debate as to whether, to put it shortly, what was laid down in the guidelines made under s. 94A was mandatory or directory in character and if directory what in the events that have happened would amount to substantial compliance.
published in the Gazette, make guidelines to
be complied with by licensees in preparing
and submitting implementation plans.
(2) Without limiting the generality of
sub-section (1), guidelines made under that
sub-section may make provision in respect of
-
(a) the proposals that may be included in
implementation plans;
(b) the information that is to be included
in, or to accompany, implementation
plans; and
(c) the form of implementation plans.
18. I should also add at this stage that s. 125D imposes certain
responsibilities on the Minister including (sub-s. 125D (1) (a))
the
responsibility "to plan the development of broadcasting services in
Australia". Sub-s. 125D (3), which was inserted in the
Act by the Amendment
Act, states:
125D.(3) Without limiting the generality of paragraphRegard should also be had in this setting to s. 125E which provides:
(1) (a), it shall be the responsibility of
the Minister to ensure that the objects of
Part IIIC are achieved and, in particular,
to ensure that licensees have appropriate
implementation plans and carry out those
implementation plans.
125E.(1) For the purpose of discharging hisThe provisions of the Acts Interpretation Act 1901 ("the Interpretation Act") to which reference is made in sub-s. 125E (3) have the effect that orders made under the section may be disallowed by either House of the Parliament as if they were regulations.
responsibilities under section 125D, the
Minister may make such orders, give such
directions and do all such other things as
he thinks fit.
(2) Orders made under sub-section (1) -
(a) shall be in writing;
(b) shall not be deemed to be Statutory
Rules within the meaning of the Rules
Publication Act 1903; and
(c) have the force of law.
(3) Sections 48, 49 and 49A of the Acts
Interpretation Act 1901 apply to orders
made under this section in like manner as
they apply to regulations.
(4) A person shall not contravene or fail to
comply with the provision of an order made
under this section that is applicable to
him.
(5) A direction given under this section may be
given orally or in writing.
. . .
19. In the present case, the applicant submitted that the notice published by the Minister in the Gazette on 28 August 1987 was an exercise by the Minister not only of his powers under s. 94A, but also of his powers under s. 125E to make orders and to give directions for the purpose of discharging his responsibilities under sub-s. 125D (3). However, in the notice, the Minister expressed himself as acting under s. 94A, not under any other provision; in my view, it is plain that the Minister was not acting under s. 125E. Accordingly, the guidelines do not "have the force of law" as orders made under sub-s. 125E (1); nor were they subject to Parliamentary disallowance as if they were regulations.
20. An implementation plan must contain (by force of sub-s. 94L (1) (a)) details of "the stages and timetable proposed by the licensee for the extension of services into the aggregation area of the licence" before the aggregation completion date of 31 December 1996, where, as in the present case, there has been an election to proceed immediately towards aggregation.
21. Section 94M sets out the criteria for approval of implementation plans by the Minister and states that the Minister "shall have regard to" various matters detailed in the section. The Minister may approve of an implementation plan or refuse to do so and in the latter event the taking of further steps both by licensees and the Minister are set out in s. 94N. Section 94R deals with the effect on an implementation plan of the transfer of a licence from one licensee to another. This is a subject of some relevance in the present case, given the completion on 14 October 1988 of the sale agreement between the third respondent, Dylbout, and the fifth respondent, CTS, for transfer of the two commercial television station licences, CWN-6 and CBN-8 for Dubbo and Orange respectively; completion was after the making of the four decisions of which review is sought in these proceedings.
22. Section 94S lays down various procedures for what is described as
"aggregation" whereby the Minister may direct the Australian
Broadcasting
Tribunal ("the Tribunal") to deal appropriately with extension of the service
area of licences. The applicant relied
upon s. 94S as an aid to the
construction of the Act for which it contended, and it will be necessary to
deal with it in some detail
later in these reasons. Finally, and as already
discussed, s. 94ZC deals with consolidation of licences.
The Decisions Sought To Be Reviewed
23. Against this background, I turn to describe the four decisions in respect of which the applications for review are before the Court. As I have said, Approved Market C consists of the combined service areas of WIN-4, CTC-7, CWN-6, CBN-8 and RVN-2; and the Indicative Plan also specified the aggregation area for licences in that approved market. The present dispute arises from decisions of the Minister upon certain implementation plans submitted to him under s. 94K.
24. The first decision called into question is a decision of the Minister expressed to be pursuant to s. 94N (1) of the Act to refuse to approve an implementation plan dated 16 December 1987 and submitted by CTC to the Minister in accordance with sub-s. 94K (1) of the Act. The decision was made on 17 August 1988.
25. What I shall call "the second decision" is in respect of the decision of the Minister in pursuance of s. 94N (1) of the Act to refuse to approve the implementation plan in respect of CBN-8 and CWN-6 submitted by CTS to the Minister on 23 December 1987 in accordance with s. 94K (1) of the Act. This decision was also made on 17 August 1988.
26. An implementation plan by WIN, lodged 24 December 1987, was rejected by the Minister on 17 August 1988; this decision is not called into question. The implementation plan of RVN, dated 23 December 1987, and lodged the next day, was approved by the Minister on 17 August 1988, and there is no challenge to that decision.
27. The main thrust of the applicant's case was directed not to the first two but to the last two decisions called into question. The case proceeded on the footing that if the applicant did not succeed as to the third and fourth decisions, there would be no purpose in pursuing the balance of its complaints. Thus, the utility of these proceedings for the applicant lies in it obtaining orders for review of the two latter decisions. They were made upon the same day and upon the same written brief to the Minister from his Department. The third decision was the decision of the Minister on 24 August 1988, in pursuance of s. 94N (1) of the Act to approve a further implementation plan which was dated 17 August 1988 and apparently submitted by WIN on or about 22 August 1988. This implementation plan specifies a commencement date of March 1989 for WIN-4 to commence the provision of commercial television services to part of the aggregation area of WIN-4, Wollongong which includes the present service area of CTC-7.
28. The fourth decision is that of the Minister, again made on 24 August 1988 and in pursuance of s. 94N (1) of the Act to approve two implementation plans dated 18 August 1988 and submitted on that day by CTS to the Minister. The implementation plan in respect of CBN-8, Orange specified a proposed on-air date of 31 March 1989 for extension of its service into the Canberra component of its aggregation area, Canberra being the present service area of CTC-7, Canberra.
29. I should add that the earliest proposed on-air dated for CTC-7 to extend its services into that part of its aggregation area presently served by CBN-8, CWN-6 and WIN-4, is 31 December 1989. This is provided for in the applicant's implementation plan, dated 13 September 1988, lodged that day and approved by the Minister on 14 October 1988. The applicant had stressed repeatedly to the Minister its wish to commence extension of its services not before 31 December 1989, before the Minister had made the third and fourth decisions.
30. As matters stood when the hearing before this Court commenced in December 1988, if these plans were implemented, the result, to put it broadly, would be the provision from 31 March 1989 of two additional commercial television services at a stage before CTC-7 extended its services into its aggregation area. Thus, CTC complained, it would have to bear the brunt of new competition before it was ready to move into the present territory of its competitors.
31. As will be apparent from the account earlier in these reasons of the events of January 1989, the two commercial television licences CBN-8 and CWN-6, the subject of the fourth decision, have been revoked. Section 94R, which deals with the effect of transfers of licences upon an implementation plan, has no application to the events of January. Furthermore, s. 94ZD provides that where (as has happened here) a licence is granted pursuant to s. 94ZC and the licence is in an approved market, the Minister shall require submission of an implementation plan in respect of the licence. On 7 February 1989, Dylbout submitted to the Minister such an implementation plan. The plan is dated 7 February 1989. The Minister's counsel indicated to the Court that the Minister would not deal with the plan until the decision in these proceedings.
32. In these circumstances, counsel for the second and third respondents submitted that the Court should regard as moot the application to review the fourth decision. Further, counsel submitted that, in any event, the completion on 14 October 1988 of the sale agreement, whereby Dylbout acquired the former licences CBN-8 and CWN-6, had brought into operation s. 94R; this was because there were then implementation plans applicable to the licences (i.e. those approved by the Minister on 24 August 1988 as the fourth decision called into question in these proceedings). It was submitted that the Minister had been obliged to determine in writing the terms of those plans applicable to Dylbout (sub-s. 94R (1)), but had not done so when the licences themselves were revoked in January.
33. There is much force in these submissions. Nevertheless, in all the
circumstances of this litigation, I should entertain the application
to review
the fourth decision. The Minister made the third decision (which remains on
foot) on the same day and upon the same materials
as the fourth decision. The
questions of statutory construction presented by the challenge to the third
decision are closely related
to those presented by the fourth decision. The
proposed implementation plan in respect of the consolidated licence still
proposes
the on-air date in Canberra of 31 March 1989, the date with which the
applicant was so discontented when faced with the fourth decision.
Finally,
if the deficiencies of which the applicant complained in respect of the plans
the subject of the fourth decision did mean,
as the applicant submitted that,
in truth, no plans ever were validly approved for the purposes of the Act, to
leave that controversy
unquelled might well give rise to further complications
at a later stage, given the adverse relationship between the corporate groups
involved and their astuteness in detecting alleged deficiencies in the
administration of the Act and failures to comply with "guidelines"
and other
procedures in the administration of the Act.
The Grounds for Review
34. There had been indications that the respondents, or some of them, would challenge the standing of the applicant to bring these proceedings, but when the trial commenced, any such challenge was withdrawn by the respondents.
35. The applicant, CTC, puts its case principally on the following grounds, some of which may overlap. First, it was submitted that the Minister had misconstrued the objects of Part IIIC to which he was required by sub-s. 94M (1) to have regard in approving implementation plans; this issue essentially is one of statutory construction. Secondly, it was said the Minister failed to have regard to the desirability of co-ordinating the activities of the licensees in the Approved Market C, again as required by sub-s. 94M (1). Thirdly, CTC submitted that the implementation plans of CWN-6, CBN-8 and WIN-4 were not in accordance with the guidelines published by the Minister on 28 August 1987; there was debate as to what the terms of the guidelines meant, whether on their proper construction there had been non-compliance, and as to the consequences of any such non-compliance. In particular, as a large sub-issue, deficiencies were alleged in the manner in which the WIN and CTS implementation plans were executed and various questions of company law were debated. Fourthly, CTC submitted that the implementation plans did not contain details of the stages and timetable proposed by the applicant licensees, as required by s. 94L; there was disagreement as to the consequences of failure to observe the requirement of s. 94L. In elaborating a number of these principal submissions, CTC pointed to the statement in s. 125D (3) that it shall be the responsibility of the Minister to ensure that the objects of Part IIIC are achieved and in particular to ensure that licensees have appropriate implementation plans and carry them out. Finally, it was said (albeit not very strongly) the decisions were unreasonable in the sense that no reasonable person could have made them in the proper exercise of the powers conferred by the Act.
36. It is appropriate, before dealing with these grounds in fuller detail, to
set out the text of some of the applicable provisions
of the Act with which I
have not already dealt.
The Terms of the Legislation
37. I now set out the other relevant provisions of Part IIIC. I should
commence with some definitions from s. 4:
"Aggregation area", in relation to a licence,I should also set out sub-ss. (8), (9) and (10) of s. 4:
means the area that, in accordance with the
Indicative Plan is the aggregation area in
relation to the licence;
"Aggregation completion date", in relation to an
approved market, means -
(a) 31 December 1996; or
(b) if the Minister, pursuant to
sub-section 94F (5), specifies a later
date in relation to the approved market
- that later date;
"Approved market" means an area that, in
accordance with the Indicative Plan, is an
approved market for the purposes of Part IIIC;
"implementation plan", in relation to a licensee
in relation to a licence, means the
implementation plan that is applicable to the
licensee in respect of the licence in accordance
with Part IIIC;
"Indicative Plan" means the plan in force under
Division 2 of Part IIIC;
"regional licence" means a licence that, in
accordance with the Indicative Plan, is a
regional licence for the purposes of Part IIIC.
4. (8) A reference in this Act to a licence in an38. The central provisions of Part IIIC which I have not previously set out, are as follows:
approved market is a reference to a licence
whose service area is within the approved
market.
(9) A reference in this Act to a licensee in an
approved market is a reference to the holder
of a licence in the approved market.
(10) A reference in this Act to the
implementation plan applicable to a licensee
in respect of a licence is a reference to -
(a) in a case where the Minister approves,
under sub-section 94N (1), (3) or (6)
or section 94P, an implementation plan
submitted by the licensee in respect of
the licence - the implementation plan
so approved; or
(b) in a case where the Minister
determines, under sub-section 94N (4)
or (5) or 94R (2), the terms of the
implementation plan that is to be
applicable to the licensee in respect
of the licence for the purposes of this
Act - the implementation plan so
determined,
and includes a reference to such an
implementation plan as varied under section
92Q.
Division 2 - Indicative Plan39. I turn now to deal with the various submissions made on behalf of the applicant, CTC.
Preparation of Indicative Plan
94B.The Minister shall prepare a written plan (to be
known as the "Equalisation of Regional Commercial
Television Indicative Plan") specifying -
(a) the licences that are to be regional
licences for the purposes of this Part:
(b) the areas that are to be approved markets
for the purposes of this Part;
(c) the area that is to be the aggregation area
for each licence that is to be in an
approved market;
(d) the regional licences that are to be
eligible for consolidation with one another
in accordance with Division 6;
(e) if licences in an approved market are to be
eligible for consolidation with one another
- the area that is to be the aggregation
area for the licence that may be granted
pursuant to Division 6 in respect of those
licences; and
(f) the approved markets (if any) that are to be
eligible for an additional licence for the
purposes of this Part.
Approved markets
94C.(1) Each area that is an approved market for the
purposes of this Part shall consist of the
combined service areas of 2 or more regional
licences.
(2) In determining the areas that are to be
approved markets for the purposes of this
Part, the Minister shall have regard to -
(a) the objects of this Part;
(b) the desirability of an approved market
consisting of service areas that are as
close to one another as practicable;
(c) the desirability of an approved market
reflecting, as far as practicable,
community of interests within the area
of the approved market;
(d) the desirability of an approved market
being able to support, as soon as
practicable and in any case not later
than the aggregation completion date
for the approved market, the provision
of 3 competitive commercial television
services to the whole of the approved
market;
(e) the desirability of an approved market
being wholly within the one State;
(f) the desirability of an approved market
being wholly within the one time zone;
and
(g) such other matters as the Minister
considers appropriate.
(3) A reference in this section to a service
area is a reference to a service area as it
exists from time to time.
Aggregation areas
94D.(1) The aggregation area of a licence in an
approved market may consist of the whole or
a part of the approved area.
(2) In determining aggregation areas of licences
in an approved market, the Minister shall
ensure that the aggregation areas will
enable the provision of 3 commercial
television services to the whole of the
approved market.
(3) Where 2 or more licences in an approved
market are eligible for consolidation with
one another in accordance with Division 6,
the aggregation area of any one of those
licences shall not include the existing
service area of another of those licences.
Publication of Indicative Plan
94E.(1) The Minister shall, by notice in writing in
the Gazette, publish the plan prepared under
section 94B.
(2) The Indicative Plan comes into force on the
day on which it is published under
sub-section (1).
Variation of the Indicative Plan
94F.(1) The Minister may, by notice in writing in
the Gazette, vary the Indicative Plan.
(2) A notice under sub-section (1) comes into
force on the day on which it is published
under sub-section (1) or on such later day
as is specified in the notice.
(3) The Minister shall not vary the Indicative
Plan so as to -
(a) alter the area of an approved market;
or
(b) alter the aggregation area of a licence
in an approved market.
(4) Without limiting the generality of sub-
section (1), the Minister may vary the
Indicative Plan so as to -
(a) specify an area that is to be a new
approved market for the purposes of
this Part;
(b) specify the area that is to be the
aggregation area for each licence in a
new approved market;
(c) specify regional licences that are to
be eligible for consolidation with one
another in accordance with Division 6;
(d) if licences in a new approved market
are to be eligible for consolidation
with one another - specify the area
that is to be the aggregation area for
the licence that may be granted
pursuant to Division 6 in respect of
those licences;
(e) specify a new approved market as an
approved market that is, for the
purposes of this Part, to be eligible
for an additional licence; and
(f) make changes that are necessary to give
effect to a consolidation of licences
in accordance with Division 6.
(5) Where the Minister varies the Indicative
Plan so as to specify an area as a new
approved market for the purposes of this
Part, the Minister shall also vary the
Indicative Plan so as to specify a date (not
earlier than 31 December 1996) as the
aggregation completion date for that
approved market.
(6) Before the Minister varies the Indicative
Plan under sub-section (1) -
(a) the Minister shall publish, in the
Gazette, a notice -
(i) specifying the variation proposed
to be made by the Minister; and
(ii) notifying interested persons that
they may, not later than a
specified day (not less than 21
days after the day on which the
notice is published in the
Gazette), make representations to
the Minister relating to the
proposed variation; and
(b) the Minister shall have regard to any
representations so made.
(7) Before the Minister varies the Indicative
Plan under sub-section (1) so as to specify
an area that is to be a new approved market
for the purposes of this Part, the Minister
shall, in addition to publishing a notice
under sub-section (6) -
(a) give each licensee in the area notice
in writing -
(i) specifying the variation proposed
to be made by the Minister; and
(ii) stating that the licensee may, not
later than a specified day (not
less than 21 days after the day on
which notice is given), make
representations to the Minister
relating to the proposed
variation; and
(b) the Minister shall have regard to any
representations so made.
(8) A reference in this section to a licensee in
an area is a reference to the holder of a
licence whose service area is within that
first-mentioned area.
Division 3 - Election by licensees for
immediate aggregation or aggregation via
multi-channel services
Election by licensees in approved market
94G.(1) Subject to sub-section (3), each licensee in
an approved market specified in the
Indicative Plan published under section 94E
may, before the end of the period of 28 days
commencing on the day on which the
Indicative Plan is published, give the
Minister -
(a) notice that the licensee wishes to
proceed immediately towards aggregation
in the approved market; or
(b) notice that the licensee wishes to
provide multi-channel services in the
licensee's existing service area before
proceeding towards aggregation in the
approved market.
(2) Subject to sub-section (3), where the
Indicative Plan is varied to specify a new
area as an approved market for the purposes
of this Part, each licensee in the approved
market may, before the end of the period of
28 days commencing on the day on which the
variation is published under section 94F,
give the Minister -
(a) notice that the licensee wishes to
proceed immediately towards aggregation
in the approved market; or
(b) notice that the licensee wishes to
provide multi-channel services in the
licensee's existing service area before
proceeding towards aggregation in the
approved market.
(3) If the Indicative Plan -
(a) specifies as an approved market an area
that includes a metropolitan service
area; or
(b) specifies that an approved market is
eligible for an additional licence,
the following provisions have effect:
(c) sub-sections (1) and (2) do not apply
to the approved market;
(d) the approved market shall be taken to
be proceeding immediately towards
aggregation.
(4) Where a licensee in an approved market fails
to give notice under sub-section (1) or (2)
before the end of the period referred to in
that sub-section, the licensee shall be
taken to have given the Minister notice
under that sub-section that the licensee
wishes to proceed immediately towards
aggregation in the approved market.
(5) A notice under sub-section (1) or (2) shall
be in writing in accordance with the form
approved by the Minister.
Effect of Elections on approved market
94H.(1) An approved market shall be taken -
(a) if 2 or more of the licensees in the
approved market give notice to the
Minister under section 94G that they
wish to proceed immediately towards
aggregation in the approved market - to
be proceeding immediately towards
aggregation; or
(b) if paragraph (a) does not apply - to be
proceeding towards aggregation via
multi-channel services.
(2) For the purposes of sub-section (1), where -
(a) 2 or more of the licences in an
approved market are specified in the
Indicative Plan as being eligible for
consolidation with one another; and
(b) the licensees of those licences give
notices to the Minister under section
94G that they wish to proceed
immediately towards aggregation in the
approved market;
those notices shall be deemed to be a single
notice under that section given jointly by
those licensees.
Minister to give notice of effect of elections
94J.As soon as practicable after the end of the
period referred to in sub-section 94G (1) or (2),
the Minister shall give each person who holds a
licence in the approved market notice in
writing -
(a) stating whether the market is proceeding
immediately towards aggregation or is
proceeding towards aggregation via
multi-channel services; and
(b) requiring the licensee to submit to the
Minister an implementation plan in respect
of the licence in accordance with section
94L before the end of the period of 3 months
commencing on the day on which the notice is
given to the licensee.
Division 4 - Implementation plans
Submission of implementation plans
94K.(1) Where the Minister gives a person who holds
a licence notice under section 94J, the
person shall, before the end of the period
of 3 months commencing on the day on which
the notice is given, submit to the Minister
an implementation plan in respect of the
licence.
(2) Where the Indicative Plan published under
section 94E -
(a) specifies as an approved market an area
that includes a metropolitan service
area; or
(b) specifies that an approved market is
eligible for an additional licence,
each person who holds a licence in the
approved market shall, before the end of the
period of 3 months commencing on the day on
which the Indicative Plan is published,
submit to the Minister an implementation
plan in respect of the licence.
(3) Where the Indicative Plan is varied to -
(a) specify as a new approved market an
area that includes a metropolitan
service area; or
(b) specify that a new approved market is
eligible for an additional licence,
each person who holds a licence in the
approved market shall, before the end of the
period of 3 months commencing on the day on
which the variation comes into force
pursuant to sub-section 94F (2), submit to
the Minister an implementation plan in
respect of the licence.
(4) Where the Minister gives a person who holds
a licence notice under section 94ZD, the
person shall, before the end of the period
of 28 days commencing on the day on which
the notice is given, submit to the Minister
an implementation plan in respect of the
licence.
(5) Where -
(a) a licence is granted (otherwise than by
way of renewal); and
(b) the licence is in an approved market,
the licensee shall, before the end of the
period of 3 months commencing on the day on
which the licence is granted, submit to the
Minister an implementation plan in respect
of the licence.
(6) Where a regional licensee who is not in an
approved market proposes to apply under
sub-section 94V (1) for the grant of an MCS
permit in respect of a licence, the licensee
may submit to the Minister an implementation
plan in respect of the licence.
Implementation plans
94L.(1) The implementation plan submitted, pursuant
to sub-section 94K (1), (2), (3), (4) or (5)
or 94N (2), (4) or (5), in respect of a
licence in an approved market shall contain
details of -
(a) if the approved market is proceeding
immediately towards aggregation - the
stages and timetable proposed by the
licensee for the extension of services
into the aggregation area of the
licence before the aggregation
completion date for the approved
market; or
(b) if the approved market is proceeding
towards aggregation via multi-channel
services -
(i) the stages and timetable proposed
by the licensee for the provision
of multi-channel services in the
existing service area of the
licence (including the timetable
proposed by the licensee for
ceasing to provide such multi-
channel services); and
(ii) the stages and timetable proposed
by the licensee for the extension
of services into the aggregation
area of the licence before the
aggregation completion date for
the approved market.
(2) An implementation plan submitted pursuant to
sub-section 94K (6) in respect of a licence
that is not in an approved market shall
contain details of the stages and timetable
proposed by the licensee for the provision
of multi-channel services in the existing
service area of the licence.
(3) The implementation plan in respect of a
licence in an approved market shall not
proposal the provision of multi-channel
services beyond the aggregation completion
date for the approved market.
(4) If the Indicative Plan specifies that a
licence is eligible for consolidation with
another licence or other licences, any
implementation plan in respect of the
licence shall also contain -
(a) a statement whether or not the licensee
proposes to consolidate the licence
with that other licence or those other
licences; and
(b) if the licensee proposes to consolidate
-
(i) a statement of the timetable
according to which the
consolidation is proposed to be
completed; and
(ii) an indication of the
implementation plan that would be
likely to be submitted by the
licensee of the consolidated
licence.
(5) An implementation plan shall be in writing
and shall be in accordance with any
guidelines made by the Minister under
section 94A.
Criteria for approval of implementation plan
94M.(1) In determining whether to approve an
implementation plan submitted by a licensee
in respect of a licence and in determining
whether to vary the implementation plan
applicable to a licensee in respect of a
licence, the Minister shall have regard to -
(a) the objects of this Part;
(b) the guidelines made under section 94A;
(c) whether the technical aspects of the
proposed implementation plan, or the
implementation plan as proposed to be
varied, are acceptable, having regard
to the Minister's planning
responsibilities;
(d) if -
(i) the implementation plan is
submitted by a licensee in
respect of a licence in an
approved market;
(ii) the implementation plan includes
a proposed timetable for ceasing
to provide multi-channel
services; and
(iii) each of the implementation plans
submitted by the other licensees
in the approved market includes
a proposed timetable for ceasing
to provide multi-channel
services that is the same as, or
substantially the same as, the
proposed timetable referred to
in sub-paragraph (ii),
the desirability of the implementation
plan that is to be applicable to the
licensee in respect of the licence
including the proposed timetable
referred to in sub-paragraph (ii);
(e) if the implementation plan is submitted
by, or applicable to, a licensee in
respect of a licence in an approved
market - the desirability of
co-ordinating the activities of the
licensees in the approved market; and
(f) any other matters that the Minister
considers relevant.
(2) Where 2 or more licences in an approved
market are specified in the Indicative Plan
as eligible for consolidation with one
another, the Minister shall not approve an
implementation plan submitted in respect of
one of those licences if the implementation
plan would involve an extension of the
service area of that licence into the
service area, or proposed service area, of
the other licence or another of those
licences.
Minister's powers in relation to implementation plans
in approved markets
94N.(1) Where a licensee in an approved market
submits an implementation plan pursuant to
sub-section 94K (1), (2), (3), (4) or (5) in
respect of a licence, the Minister shall, by
notice in writing to the licensee -
(a) approve the implementation plan; or
(b) refuse to approve the implementation
plan and require the licensee to submit
to the Minister, within such period
(ending not less than 28 days after the
day on which the notice is given) as is
specified in the notice, another
implementation plan in respect of the
licence.
(2) Where notice is given to a licensee under
paragraph (1) (b), the licensee shall submit
to the Minister another implementation plan
in respect of the licence within the period
specified in the notice.
(3) Where a licensee submits an implementation
plan under sub-section (2) in respect of a
licence, the Minister shall, by notice in
writing to the licensee -
(a) approve the implementation plan; or
(b) refuse to approve the implementation
plan.
(4) Where the Minister refuses under sub-section
(3) or (6) to approve an implementation plan
in respect of a licence, the Minister may do
any one or more of the following:
(a) direct the Tribunal under sub-section
18 (2) to hold an inquiry into such
matters relating to the implementation
plan to be submitted by the licensee in
respect of the licence as the Minister
specifies in the direction;
(b) direct the licensee under section 125E
to submit to the Minister, within such
period (ending not less than 28 days
after the day on which the direction is
given) as is specified in the
direction, another implementation plan
in respect of the licence in accordance
with such principles and requirements
as the Minister specifies in the
direction;(c) determine, in writing, the terms of the
implementation plan that is to be
applicable to the licensee in respect
of the licence for the purposes of this
Act.
(5) Where a licensee in an approved market fails
to submit to the Minister an implementation
plan in respect of a licence in accordance
with this Division, the Minister may do any
one or more of the following:
(a) direct the Tribunal under sub-section
18 (2) to hold an inquiry into such
matters relating to the implementation
plan to be submitted by the licensee in
respect of the licence as the Minister
specifies in the direction;
(b) direct the licensee under section 125E
to submit to the Minister, within such
period (ending not less than 28 days
after the day on which the direction is
given) as is specified in the
direction, an implementation plan in
respect of the licence in accordance
with such principles and requirements
as the Minister specifies in the
direction;
(c) determine, in writing, the terms of the
implementation plan that is to be
applicable to the licensee in respect
of the licence for the purposes of this
Act.
(6) Where a licensee in an approved market
submits an implementation plan to the
Minister pursuant to a direction given by
the Minister under section 125E, the
Minister shall, by notice in writing to the
licensee -
(a) approve the implementation plan; or
(b) refuse to approve the implementation
plan.
(7) Where the Minister, pursuant to paragraph
(4) (a) or (5) (a), directs the Tribunal to
hold an inquiry, the Minister may specify in
the direction the day before which the
Tribunal is to make its recommendations to
the Minister and the Tribunal shall make its
recommendations to the Minister before that
day.
(8) Where the Minister receives recommendations
from the Tribunal in relation to the
implementation plan to be submitted by a
licensee in respect of a licence, the
Minister shall have regard to those
recommendations in exercising the Minister's
powers under paragraphs (4) (b) and (c) and
(5) (b) and (c) in relation to the licensee
in respect of the licence.
(9) Where the Minister approves an
implementation plan, or determines the terms
of an implementation plan, under this
section, the Minister shall give a copy of
the implementation plan to -
(a) the Tribunal; and
(b) each of the other licensees in the
approved market concerned.
. . .
Effect of transfer of licence on implementation plan
94R.(1) Subject to sub-section (2), where an
implementation plan is applicable to a
licensee in respect of a licence and the
licence is transferred to another person,
the Minister shall determine, in writing,
the terms of the implementation plan that is
to be applicable to the new licensee in
respect of the licence for the purposes of
this Act.
(2) Where -
(a) an implementation plan is applicable to
a licensee in respect of a licence; and
(b) the licensee transfers the licence to
another person,
the terms of the implementation plan
determined by the Minister under sub-section
(1) in relation to the new licensee in
respect of the licence shall be
substantially the same as the terms of the
implementation plan referred to in paragraph
(a) of this sub-section.
(3) Where the Minister determines under
sub-section (1) the terms of an
implementation plan applicable to a licensee
in respect of a licence, the Minister shall
give a copy of the implementation plan to -
(a) the Tribunal; and
(b) if the licence is in an approved market
- each of the other licensees in the
approved market.
Division 5 - Aggregation and multi-channel services
Aggregation
94S.(1) Where -
(a) a licence in an approved market (in
this sub-section referred to as the
"relevant licence") is eligible for
consolidation with another licence; and
(b) the Minister is satisfied that the
extension of the service area of the
relevant licence to include the whole
or a part of the aggregation area of
the relevant licence is consistent with
the implementation plan applicable to
the licensee in respect of the relevant
licence, the Minister may, by notice in
writing, direct the Tribunal, as
specified in the notice, to extend the
service area of the relevant licence
accordingly and the Tribunal shall
comply with the direction.
(2) Where -
(a) paragraph (1) (a) does not apply in
relation to a licence in an approved
market; and
(b) the Minister is satisfied that the
extension of the service area of the
licence to include the whole of the
aggregation area of the licence is
consistent with the implementation plan
applicable to the licensee in respect
of the licence,
the Minister may, by notice in writing,
direct the Tribunal, as specified in the
notice, to extend the service area of the
licence accordingly and the Tribunal shall
comply with the direction.
(3) Where the service area of a licence has been
extended in accordance with sub-section (1)
or (2), the Minister may, pursuant to sub-
section 89D (6) -
(a) vary or revoke any of the technical
conditions of the licence warrant in
relation to the licence; or
(b) determine further technical conditions
to be applicable to that licence
warrant.
(4) The Minister may exercise the powers under
this section either upon application by the
licensee concerned or on the Minister's own
initiative.
(5) Sub-section 85 (5) does not apply in
relation to a direction given by the
Minister under sub-section (1) or (2).
. . .
Division 6 - Consolidation of licences
Consolidation of licences
94ZC.(1) Where -
(a) 2 or more licences are specified in the
Indicative Plan as being eligible for
consolidation with one another;
(b) the same licensee holds each of the
licences;
(c) the licensee applies to the Minister,
in writing, for consolidation of the
licences in the name of the licensee;
and
(d) the Minister approves the service
specifications and technical conditions
proposed for the consolidated licence,
the Minister may direct the Tribunal, in
writing, to -
(e) revoke the licences; and
(f) grant a new licence to the licensee
under section 81.
(2) Where -
(a) 2 or more licences are specified in the
Indicative Plan as being eligible for
consolidation with one another;
(b) the licences are not held by the same
licensee;
(c) the licensees apply to the Minister, in
writing, for consolidation of the
licences in the name of a person
specified in the application; and
(d) the Minister approves the service
specifications and technical conditions
proposed for the consolidated licence,
the Minister may direct the Tribunal, in
writing, to -
(e) revoke the licences; and
(f) grant a new licence to the proposed
licensee under section 81.
(3) An application under sub-section (1) or (2)
shall contain -
(a) details of the service specifications
and technical conditions proposed for
the consolidated licence; and
(b) a proposed implementation plan for the
proposed licensee in respect of the
consolidated licence.
(4) Where the Minister directs the Tribunal,
under sub-section (1) or (2), to grant a
licence, the Minister shall specify in the
direction -
(a) the service specifications for the
licence; and
(b) the technical conditions to be included
in the licence warrant to be granted in
respect of the licence.
(5) The service area of a licence granted
pursuant to this section shall consist of
the combined service areas of the licences
that it replaces.
(6) The aggregation area in respect of a licence
granted pursuant to this section in respect
of licences in an approved market shall be
the area specified in the Indicative Plan as
the aggregation area for the licence that
may be granted pursuant to this Division in
respect of those licences.
(7) Where the Tribunal is directed under this
section to grant a licence to a person, the
Tribunal shall, subject to sub-sections (8)
and (10), grant the licence to the person
under section 81 without holding an inquiry.
(8) Before a licence is granted pursuant to this
section, the proposed licensee shall give an
undertaking in writing to the Tribunal that
the proposed licensee will, if the licence
is granted -
(a) comply with the conditions of the
licence;
(b) provide an adequate and comprehensive
service pursuant to the licence; and
(c) encourage the provision of programs
wholly or substantially produced in
Australia and use, and encourage the
use of, Australian creative resources
in and in connection with the provision
of programs.
(9) An undertaking given under sub-section (8)
shall be deemed, for the purposes of this
Act, to have been given under subsection 83
(1).
(10) Where the Tribunal is directed under sub-
section (2) to grant a licence to a person,
the Tribunal shall not grant the licence to
the person unless -
(a) the person is a licensee holding one of
the licences referred to in paragraph
(2) (a); or
(b) the Tribunal is satisfied that -
would not be contrary to a
provision of this Act; and
(ii)the person -
(A) is a fit and proper person to
hold the licence;
(B) has the financial, technical
and management capabilities
necessary to provide an
adequate and comprehensive
service pursuant to the
licence; and
(C) is otherwise capable of
complying with the conditions
of the licence.
Effect of consolidation of licences
on implementation plans
94ZD.Where -
(a) a licence is granted to a person pursuant to
section 94ZC; and
(b) the licence is in an approved market,
the Minister shall, by notice in writing to the
person, require the person to submit to the
Minister, before the end of the period of 28 days
commencing on the day on which the notice is
given, an implementation plan in respect of the
licence.
40. On 26 August 1987, when he announced the publication of the Indicative
Plan, the Minister said that it was expected that the
"necessary broadcasting
infrastructure" would be in place to enable Approved Market C "to begin
equalisation in 1989". Earlier,
in November 1986, his predecessor as
Minister, speaking before the introduction of the Bill for what became the
Amendment Act, had said that a timetable had been developed for the start of
equalisation in Approved Market C in 1989 and that all services should
be on
line by 1996. In the second reading speech in the House on 12 November 1986,
the Minister said of the Bill that
(I)t will specify areas, to be known asThe Explanatory Memorandum speaks of licensees being "required to start moving immediately towards equalisation and to achieve the objective of 3 competitive services by 1996 ..." (Emphasis supplied).
approved markets, which are the expanded
markets in which a number of identified
licensees will eventually provide, between
them, three competitive services. For most
regional viewers in Australia this will be
by 31 December 1996.
(Emphasis supplied).
41. Whatever the vigour of the legislative intent, the question always remains whether it has been given effect by the terms of the legislation. The words of the Minister are not to be substituted for the text of the law: Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514 at 518. In the present case, the central plank of the argument of the applicant, CTC, is that the objects of Part IIIC can only be achieved by the servicing by television stations of markets greater in size and greater in viability than was previously the case; CTC points to the statement in s. 94 of the objects of Part IIIC and to the co-ordinate relationship between the objectives there set out. I have set out the text of s. 94 earlier in these reasons.
42. What has happened in the present case, with the approval by the Minister of the WIN-4 and CBN-8 implementation plans providing for extension of services to Canberra in March 1989, is that the third and fourth respondents, Dylbout and WIN, are moving more rapidly to extend services than is CTC. It is not disputed that the parties have good reasons for moving at different paces. In particular, CTC has been hamstrung in its implementation of aggregation by the operation of s. 92 of the Act. As mentioned in the Introduction to these reasons, s. 92 places limitations upon aggregation of service area populations to no more than 60% of the declared population of Australia. Expansion by CTC puts it at hazard of contravention of s. 92. The evidence indicates that the Minister had some sympathy for this predicament of CTC. Certainly, as I later find, it was something to which he had regard when making the third and fourth decisions under review in these proceedings.
43. CTC submits that what the Minister has permitted to happen is at odds with the statement of s. 94 of the objects of Part IIIC. It contends that it is "to defy the objects of the Act" for the Minister to take steps under the Act which result in (i) one or two but not three licensees serving parts of the approved market, or (ii) less than three licensees serving the whole of the approved market, or (iii) less than three licensees being competitive in the whole market. CTC submits that the objects of the Act have been frustrated by the use of the circumstance that CBN-8 and WIN-4 are able to provide in March 1989 an extended service to the Canberra to justify Ministerial approval of their implementation plans, leaving other parts of the approved market after March 1989 still with less than three commercial television services operating on a competitive basis.
44. Are the objects of Part IIIC of the Act as the applicant contends? Counsel for the Minister and the other respondents submitted that the objects of Part IIIC were not as urged by CTC. In particular, they submitted that there was manifest in Part IIIC a legislative scheme to attain three goals or objectives viz. (i) provision of services in regional areas comparable to those in the capital cities by provision as soon as practicable of access to three commercial television services ("equalisation"), (ii) creation of larger and commercially more viable markets in regional Australia ("aggregation") and (iii) prevention of extension of existing regional monopolies by provision of television services on a competitive basis ("encouragement of competition"). Those goals or objectives might not always lead in the same direction at the same time and it might not be possible to achieve all three fully and simultaneously. Hence, the specification of 31 December 1996 as "the aggregation completion date", and the requirement (in sub-s. 94C (2) (d)) that in determining the areas that are to be approved markets, the Minister have regard not only to the objects of Part IIIC, but also, inter alia, to the desirability of an approved market being able to support as soon as practicable and in any case not later than 31 December 1996, the provision of three competitive commercial television services to the whole of the approved market. (Emphasis supplied).
45. This desired end may be achieved by provision of three services each to
the whole of the market. But I accept the submission
for the respondents that
it also may be achieved by provision of services, none of which extends to the
whole of the market, provided
that it is possible to say of any area in the
market that there are provided three competitive television services. This is
consistent
with introduction of services by stages. Of even plainer import is
the requirement, imposed by s. 94L, for implementation plans
to contain
details of proposed stages and timetable. The decisions of which review is
sought in these proceedings were decisions
of the Minister to approve such
plans. Where, as in the case of Approved Market C, the market is (within the
meaning of s. 94H)
proceeding immediately towards aggregation (pursuant to
elections by licensees under s. 94G) an implementation plan shall contain
details of:
(T)he stages and timetable proposed by theThis is specified by sub-s. 94L (1) (a).
licensee for the extension of services into
the aggregation area of the licence before
the aggregation completion date for the
approved market.
46. Whilst, pursuant to Part IIIC, each implementation plan will be considered by the Minister, there will be a plurality of licensees in the particular approved market and the stages and timetables proposed by them for extension of services may differ. The present case itself provides striking examples of such differences. The legislation recognises that this may occur and deals with the situation in sub-s. 94M (1) (e). This provides that in determining whether to approve an implementation plan, the Minister shall have regard to "the desirability of co-ordinating the activities of the licensees in the approved market". The evidence shows that in reaching his decisions on 24 August 1988 to approve the plans submitted by WIN-4 and CBN-8, the Minister gave detailed consideration to the position of CTC and its desire, repeatedly stressed by it in earlier discussions and correspondence, for commencement throughout the approved market on 31 December 1989. CTC had emphasised the effect upon it of the 60% population limitation, the severe competitive disadvantage it would sustain by the earlier extension of the other services into Canberra, and difficulty in obtaining the necessary additional transmission facilities before 31 December 1989.
47. The Minister, in reaching his decisions, had regard to the following
advice tendered to him:
The equalisation program was developed onThe solicitors for CTC had asserted to the Minister that he had no power to make a "partial aggregation" in Approved Market C, but the Minister preferred the above advice to the contrary. In my view, in doing so he was not acting on any erroneous construction of the legislation.
the assumption that transmission facilities
would be introduced over a finite period.
The Act envisages progressive implementation.
Approval of the plans as submitted,
would take account of the intent of the
licensees and ensure that services were
extended progressively over the approved
period. The Act sets an end date of 1996 by
which its objective, equalisation, must be
achieved. The approval of the plans would
be consistent with the Government's
timetable for commencement, which has always
been linked to the availability of
Commonwealth facilities and never, at any
stage, imposed the requirement on licensees
that equalisation be achieved on a single
date.
48. The applicant submitted that support for its interpretation of the scheme of Part IIIC was provided by the "aggregation" provisions of s. 94S. The Indicative Plan prepared by the Minister must, inter alia, specify the regional licences eligible for consolidation. (This was done in the present case and I have earlier referred to what apparently is the imminent consolidation of RVN-2 with CBN, itself the product of the recent consolidation of CBN-8 and CWN-6.) In such cases, the Minister may direct the Tribunal to extend the service area of any of the licences which are eligible for consolidation so as to include "the whole or part of the aggregation area" of that licence, if this is consistent with the implementation plan applicable to the licensee in respect of that licence (sub-s. 94S (1)). Where in an approved market a licence is not eligible for consolidation (as is the case with CTC-7 and WIN-4), the Minister may direct the Tribunal to extend the service area of that licence to include the whole of the aggregation area of that licence, if this be consistent with the relevant implementation plan (sub-s. 94S (2)). The applicant pointed to the contrast in these sub-sections between extension of service areas to the whole or merely a part of the aggregation area of the licence in question.
49. Section 94S establishes within the Act a special regime with a particular procedure whereby, in certain classes of case, the service areas of licences may be extended. The power of the Minister to give directions to the Tribunal is exercisable either upon application by the licensee or on the initiative of the Minister (sub-s. 94S (4)). Section 94S has to be read with (as sub-s. 94S (5) makes clear) with the more general provisions of s. 85. They permit variation of the service area (a "service specification" (see sub-s. 80 (1)) in accordance with more complex procedural steps.
50. Where several licences are eligible for consolidation, the licensees may, as between themselves, wish an extension of their respective service areas to particular portions of the aggregation area, rather than any one of them wish an extension to the whole, and sub-s. 94S (1) facilitates such collegiate action. These considerations do not apply when a licence is not eligible for consolidation; hence sub-s. 94S (2).
51. But in either case, the proposed extension of the service area must be consistent with the implementation plan applicable to the licensee in respect of the licence. And, as I have observed, the implementation plan, consistently with sub-s. 94L, will contain details of the stages and timetable proposed by the licensee for the extension of services into the aggregation area before the aggregation completion date. Thus, while s. 94S contains a mechanism whereby the service area may be extended in one step to its final extent, that does not mean the extension of services may not be by stages, pursuant to the relevant implementation plan. Accordingly, in my view, s. 94S does not support the applicant's case on construction.
52. I should add that where the service area of a licence has been extended under either limb of s. 94S, the Minister, consistently with the general scheme of the Act, deals with technical conditions applicable to the relevant licence warrant (sub-s. 94S (3), sub-s. 89D (6)).
53. The applicant's counsel then drew attention to the provisions of s. 96,
dealing with the commencement of services. These provisions
pre-date the
introduction of Part IIIC. So far as relevant, they state:
96. (1) The holder of a licence -54. The applicant submitted that this has the result that the Tribunal cannot permit the use of two or more transmitters to the one service area unless each of them transmits, or, between them all, they transmit to the whole of the service area of the relevant licence. This was then said to support the principal submissions as to the construction of Part IIIC of the Act and, in particular, as to the effect of the statement of objects in s. 94.
(a) shall commence the service in pursuance
of the licence on such date as is
determined by the Tribunal; and
(b) where the technical conditions of the
licence warrant are varied so as to
authorize the use of an additional
radiocommunications transmitter or
additional radiocommunications trans-
mitters to provide the service pursuant
to the licence - shall commence to
provide the service from that
additional transmitter or those
additional transmitters on such date as
is determined by the Tribunal.
(2) Notwithstanding sub-section (1), where the
service pursuant to the licence is to be
provided by means of 2 or more
radiocommunications transmitters, or a
variation of the technical conditions of a
licence warrant authorizes the use of one or
more additional radiocommunications trans-
mitters to provide the service pursuant to
the licence, the Tribunal may permit the
transmission of programs by means of those
transmitters to commence on such respective
dates as are determined by the Tribunal.
...
55. But s. 96 does not on its face operate in that way. Further, when it is understood with other provisions of the Act, it will be seen to be consistent with rather than adverse to the construction of Part IIIC contended for by the applicant.
56. In the introductory passages in these reasons, I referred to the necessity for an applicant for a licence to undertake in writing to the Tribunal to provide "an adequate and comprehensive service" pursuant to the licence (sub-s. 83 (1) (b)); the expression is defined in sub-s. 4 (6). A service to less than the whole of the aggregation area of a licence, under an approved implementation plan pursuant to an election to proceed immediately towards aggregation, would not ordinarily be adequate and comprehensive in the necessary sense. The Tribunal shall refuse to renew a commercial licence if it is satisfied the licensee has failed to comply with the undertaking given under sub-s. 83 (1). Sub-section 86AA (4) so provides.
57. What then of a licensee in respect of whose operations there is an
unconsummated implementation plan which is approved by the
Minister under Part
IIIC but proposes the extension by stages of services into the aggregation
area? The inter- relation between
Part IIIC and s. 86AA (4) was dealt with
first by the Amendment Act which introduced Part IIIC, and then by the
Broadcasting Legislation Amendment Act 1988. The legislation now states:
86AA. (7) Where an implementation plan is applicable58. But what of the power of the Tribunal not to refuse to renew, but to suspend or revoke a commercial licence for failure to comply with the undertaking to provide an adequate and comprehensive service (see sub-s. 88 (2) (b))? Again, the Amendment Act introduced provisions with the effect that the Tribunal in such a case has to have regard to the terms of the implementation plan (see sub-s. 88 (3), (6), (7), (8)).
to a licensee in respect of a commercial
television licence, the Tribunal shall, in
determining for the purposes of subsection
(4) whether the licensee has failed to
comply with the undertaking (if any) given
under subsection 83 (1) or 86 (4) in
relation to the licence, have regard to
the terms of the implementation plan.
. . .
(10) Where an implementation plan is applicable
to a licensee in respect of a commercial
television licence, the Tribunal may
refuse to renew the licence if the
Tribunal is satisfied that:
(a) the licensee has failed to a
significant extent to comply with the
implementation plan; and
(b) it is advisable in the public
interest, having regard to that
failure, that the licence not be
renewed.
(11) Before the Tribunal refuses to renew a
licence under subsection (10):
(a) the Chairman of the Tribunal shall
give the Minister written notice that
the Tribunal is satisfied as to the
matters referred to in paragraphs
(10) (a) and (b) in relation to the
licence; and
(b) the Tribunal shall have regard to any
representations made by the Minister.
(12) Without limiting subsection (11), the
Minister may include, in representations
made pursuant to that subsection in
relation to a licence, details of any
proposed variations of the implementation
plan applicable to the licensee in respect
of the licence.
59. The result then is that the legislation has been carefully drawn so as not to imperil a licensee with an implementation plan which provides for an extension of services into the aggregation area of the licence. Regard must be had to the terms of the plan if there arises a question of failure to comply with the undertaking to the Tribunal. And special provision is made for the Tribunal to suspend, revoke or refuse to renew a licence where the licensee fails to a significant extent to comply with the implementation plan. The significance of these provisions in the setting of this litigation is that they are consistent with the submissions for the Minister and the other respondents as to the construction of Part IIIC, and, in particular, the statement of the objects in s. 94.
60. In my view, the objects of Part IIIC are not as the applicant contends.
The objects were correctly identified in the submissions to the Minister upon
which he made the
decisions of 24 August 1988. It is, therefore, not
necessary to decide the consequences that would have followed if the Minister
had misunderstood the objects of Part IIIC when having regard to them as
required by sub-s. 94M (1) (a). It is not necessary in dealing with the
present issue to decide what
would be the consequence of a failure by the
Minister to ensure that the objects of Part IIIC are achieved (sub-s. 125D
(3)). It is necessary to ascertain what is the content of the obligation in
sub-s. 94M (1) that the Minister
is to "have regard to" specified matters,
including "any other matters that the Minister considers relevant", and to
this I now turn.
The Obligations of the Minister Under sub-s. 94M (1)
61. The obligation in sub-s. 94M (1) to have regard to the matters there set out requires the Minister to take these matters into account and to give weight to them as fundamental elements in his decision: cf. The Queen v Toohey, Ex parte Meneling Station Pty. Ltd. [1982] HCA 69; (1982) 158 CLR 327 at 333, 338. What was said in Rathborne v Abel (1964) 38 ALJR 293 at 294-295, 301, 303, might be taken to suggest the contrary, in the sense that the decision maker might decide to give no weight at all to one or more of the matters to which the statute bids him have regard. But that was a decision construing a statute with rather different scope and purpose. In the setting of s. 94M (1) of the Act, it could hardly be suggested that the Minister might properly decide in a given case to give no weight at all to, say, the objects of Part IIIC (para. (a)).
62. No doubt the relative weight given by the Minister to the matters described in sub-s. 94M (1) is a matter for him; so also ordinarily will be his selection of any other relevant matters (para. (f)): Minister for Aboriginal Affairs v Peko-Wallsend Ltd. [1986] HCA 40; (1986) 162 CLR 24 at 41. But mere assertion that regard has been had to matters set out in sub-s. 94M (1) will not suffice, if it is demonstrated that regard has not been paid in any real sense: Turner v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388 at 392. Nevertheless, in proceedings such as the present, the limited role of the Court must be borne in mind: Minister for Aboriginal Affairs v Peko-Wallsend Ltd. (supra).
63. When making the third and fourth decisions on 24 August 1988, the Minister had before him what he described as an impressive written brief by Mr. C.J. Knowles, Assistant Secretary, National Broadcasting Branch, Communications Operations Division, of the Minister's Department. This brief went through all the relevant matters listed in paras. (a) - (e) of sub-s. 94M (1). The treatment of the objects of Part IIIC (para (a)) was criticised by the applicant for errors of law, but I have found on the issues of construction so raised in a manner adverse to the applicants. There were no such errors.
64. Criticism was also directed by the applicant to the treatment of the desirability of co-ordinating activities of the licensees in the approved market. The applicant pointed to the fact that at the time of the third and fourth decisions on 24 August 1988, it had yet to lodge its implementation plan and that this did not happen until September. Accordingly, it was said that when making the third and fourth decisions, the Minister did not have regard to the desirability of co-ordinating the activities of the licensees in Approved Market C, as required by sub-s. 94M (1) (e). The answer is provided in the terms of the brief to the Minister itself. In my view, this correctly advised the Minister that he had sufficient evidence of the intentions and concerns of all licensees from numerous meetings and exchanges of correspondence which had taken place over the preceding months and that there was no requirement in the Act that the Minister approve all submitted implementation plans for an approved market at the same time.
65. The brief dealt at length and in a balanced way with the progress of
consultation with licensees about co-ordination of the commencement
date. The
positions urged by the parties were explained, including that put forward by
the applicant. In my view, on this material,
there was no substance in the
applicant's further complaint to this Court that the decisions were
unreasonable in the sense that
no reasonable person could have made them in
proper exercise of the powers conferred by ss. 94M and 94N.
The Guidelines
66. That leaves the treatment in the brief of the guidelines (sub-s. 94M (1) (b)). The implementation plans were attached to the brief. It was said in the brief that the guidelines "outlining the proposals and the information that should be included in the implementation plans and the form of implementation plans ... have been followed by licensees"; the Assistant Secretary concluded "This criterion does not impact on your consideration". I read this as a statement that with respect to the outlining of the proposals, the furnishing of information, and the use of proper forms, the implementation plans were in accordance with the guidelines in the sense required by the Act so that the Minister need not be further concerned. Was it an error to state that the guidelines had been followed in this sense? Was the Assistant Secretary mistaken, so that the Minister's discretion miscarried (cf. GTE (Aust.) Pty. Ltd. v Brown (1986) 14 FCR 309 at 326)?
67. This raises the issues of (i) what is meant by the statement in sub-s. 94L (5) that an implementation plan be "in accordance with any guidelines made by the Minister", (ii) what the guidelines on the proper reading of their own terms call for and (iii) the impact of any failure to observe the guidelines upon the application of sub-s. 94M (1). The Act is silent as to what is necessary to comply with the guidelines and as to what is the consequence of failure in compliance as so understood. Hence, the debate turned to the terms "mandatory" and "directory", and there was much discussion in submissions as to the alleged dichotomy between them.
68. The elusive distinction between directory and mandatory requirements has been much discussed in recent appellate authorities, including TVW Enterprises Ltd. v Duffy (1985) 62 ALR 63; McRae v Coulton (1986) 7 NSWLR 644; Hunter Resources Ltd. v Melville [1988] HCA 5; (1988) 164 CLR 234 and Formosa v Secretary, Department of Social Security [1988] FCA 291; (1988) 81 ALR 687. There is general agreement that it is a matter of construing the relevant statutory provisions in their context, which includes the scope and purpose of the statute. The result of any non-compliance with the statutory requirement has to be determined by reference to that construction. At the end of this inquiry, one may use the terms mandatory or directory to describe the nature of the statutory requirement. But, as Hope JA pointed out (McRae v Coulton (supra, at 661)), categorisation is at the end of the inquiry, not the beginning. If on its correct meaning the statutory requirement is satisfied by substantial or some other degree of compliance, then the requirement, so understood, may still properly be described as mandatory in character. This is because non-compliance with the requirement as so understood renders ineffective the acts in question. But the requirement may truly be said to be directory and not mandatory in character, if the consequence of non-compliance with what is stipulated by the requirement (properly construed) is not to render ineffective the acts in question: Formosa v Secretary, Department of Social Security (supra, at 692-693). Further, as Formosa's case also illustrates (see 81 ALR at 693) as to some of the integers in a requirement (e.g. use of a particular form), non-compliance may not be fatal, whereas as to other integers (e.g. information placed on the form by the person relying on it), non-compliance may render the form ineffective for the use to which it is sought to be put.
69. I turn to the first issue mentioned above viz. the statement in sub-s. 94L (5) that an implementation plan be "in accordance with any guidelines made by the Minister". The evident purpose of s. 94A and sub-s. 94L (5) in providing for guidelines to be made and stipulating that implementation plans be in accordance with them is to oblige licensees to attend the preparation of implementation plans with some formality and care, and to provide information and proposals in a form and of a character the Minister believes will be of assistance in determining whether to approve implementation plans. In determining whether to approve such plans, the Minister is obliged by sub-s. 94M (1) to have regard, inter alia, to technical aspects (para (c)), the objects in s. 94 (para. (a)), co-ordination of the activities of the applicant licensee and other licensees in the approved market (para. (e)) and any other matters he considers relevant (para. (f)).
70. The guidelines may make provision in respect of the form of implementation plans, the proposals that may be included in implementation plans and the information that is to accompany such plans (sub-s. 94A (2)). The guidelines may also make provision in respect of the information that is to accompany implementation plans (sub-s. 94A (2) (b)). The guidelines which were made by the Minister on 28 August 1987 provide for these matters, which, as will be apparent, are diverse in character. It is one thing to describe the nature of "information" and another to specify use of a form. The information supplied may be seen after evaluation not to meet what is called for; a particular form may have been used with variations of no substantive importance, but with the result nevertheless that there has been a divergence from what the guidelines specified was the form to be used.
71. What then is meant by the phrase in sub-s. 94L (5) "shall be in accordance with the guidelines"? The context is one which, in my view, indicates that the words "in accordance with" are more akin to "pursuant to" than "in strict compliance with" (cf. Ex parte Hestelow; Re Claye (1967) 87 WN (Pt. 1) (NSW) 184 at 198 per Jacobs JA). There will be non-compliance with sub-s. 94L (5) if a plan cannot be said to have been prepared pursuant to the guidelines; it may still have been prepared "in accordance with" the guidelines although it is not in strict compliance with them in every particular. That then is the content of the requirement. One then may ask whether, so understood, the requirement is mandatory because if it is not met, the consequence is to render what has been done ineffective for the purposes of the Act.
72. Whilst the provisions of the Act are by force of s. 129 deemed incorporated in the licences, it nevertheless is true that failure by a licensee to comply with s. 94L (5) of itself produces no immediate consequences upon the validity of any act or decision. The Minister is required by sub-s. 94M (1) to have regard to the guidelines when determining whether to approve the plan in question; this includes, in my view, having regard to whether there has been such non-compliance with the guidelines in one or more particulars that one can say that the plan was not prepared pursuant to the guidelines. If it does appear to the Minister that the plan is not in accordance with the guidelines in this sense, then that is a matter to which he will have regard in the exercise of his discretion. When the matter is seen in this light, it will be apparent that the great conceptual divide between the effective and ineffective, valid and invalid, which is suggested by the dichotomy between the mandatory and directory, is not really present with legislation of the present character.
73. In the present case, the Minister, in making the third and fourth decisions, exercised his discretion on the footing that the guidelines had been followed. This would be the case if the plans were prepared pursuant to the guidelines in the sense I have described.
74. It is appropriate then to turn to the terms of the relevant guidelines to ascertain that which, on their proper interpretation, they require to be done, in order for one then to be able to say of a plan that it is "in accordance with" those guidelines within the sense of sub-s. 94L (5) I have described above. If, on the true construction of the guidelines, what has been done complied with them, then the Minister proceeded to exercise his discretion on the proper basis; one would not, even if it were open in these proceedings, go on to ask what he would have done if the plans fell short of what was needed. In my view, the facts in the present case show compliance with the guidelines on their proper construction. It remains to explain the reasons for that conclusion.
75. On 28 August 1987, the Minister, by notice in writing published in the
Commonwealth of Australia Gazette, made guidelines to
be complied with by
licensees in preparing and submitting implementation plans. The guidelines
were published pursuant to the provisions
of s. 94A of the Act. The notice in
the Gazette, omitting formal parts, read as follows:
These guidelines, to be complied with by licensees in76. Lodgement of implementation plans:
preparing and submitting implementation plans, make
provision in respect of:
(a) the proposals that may be included in
implementation plans;
(b) the information that is to be included in, or to
accompany, implementation plans; and
(c) the form of implementation plans.
The guidelines are presented by way of proformae to be
completed by licensees. The implementation plans, and
information required to be submitted in conjunction
with licensees' implementation plans, shall be
submitted in accordance with the proformae attached to
these guidelines. (Emphasis supplied).
In completing the implementation plan (EQ2), and
proforma containing information that is to accompany
the implementation plan (EQ3), licensees should pay
particular attention to the factors to which the
Minister must have regard in approving these plans
(see section 94M(1)).
The actual implementation plan proforma to be
completed by licensees shall contain a part pertaining
to multi-channel services (Part 2) and/or aggregation
(Part 3), which is specific to each Approved Market.
The appropriate proforma shall be forwarded to
licensees at the time of the Minister's advice of the
result of elections for each market.
Implementation plans should be forwarded to the77. In my view, information may be supplied "in accordance with" the pro formae for the purposes of the guidelines even if not submitted in strict compliance with it, conformably with the interpretation of the same phrase in sub-s. 94L (5).
Minister for Transport and Communications, c/- Station
Planning Branch, Broadcasting Services Division,
Department of Transport and Communications, PO Box 34
Belconnen, (Benjamin Offices, Building 7, Chan Street,
Belconnen) ACT 2616.
Submission of implementation plans should be in
accordance with the notice, order or direction
received from the Minister as follows:-
1) within three months of the date of notice under
section 94J;
2) within twenty eight days of the date of notice
under section 94ZD;
3) within twenty eight days of the date of notice
under section 94N(1) (b);
4) within a period not less than twenty eight days
of the order or direction under section 125E; or
5) at any time when a licensee not in an approved
market proposes to apply for the grant of a
multi-channel service permit.
The Department of Transport and Communications will
acknowledge receipt of implementation plans at the
above address.
78. The Certificate of Lodgement for implementation plans was in the
following form:
IMPLEMENTATION PLAN79. The pro formae containing the information "to accompany" implementation plans (Form EQ3) stated that the information provided on the form was additional to that contained in, but was not part of, the implementation plan; see sub-s. 94A (2) (b).
Certificate of Lodgement
Minister for Transport and Communications
C/- Station Planning Branch
Department of Transport and Communications
PO Box 34
BELCONNEN ACT 2616
Pursuant to
of the Broadcasting Act 1942, I hereby submit on
behalf of the licensee, , an
implementation plan in respect of the licence for a
commercial television service known by the call
sign , for the Approved Market (AM
name ). (1)
If the implementation plan is approved by the
Minister, I certify that the licensee agrees to abide
by this implementation plan.
I certify that the statements in this implementation
plan are true, complete, and correct to the best of my
knowledge and belief, and are made in good faith.
I also certify that this implementation plan is
submitted pursuant to a resolution of the directors of
the licensee company; the common seal of which is
affixed hereunder.
Signed and dated this day of 19
(Signature)
(Capacity of Person Signing)
(Name of Licensee Company)
NOTE (1):Approved market should not be specified
where the licensee is not in an approved
market.
(This form is not required to be completed when
accompanied by an Application for Consolidation, form
EQ4/5.)
80. The applicant submitted that the certificates given in respect of the WIN and CTS plans were defective. It will be apparent that the form of the Certificate of Lodgement in the guidelines is drawn on the footing that the licensee in question will be a corporation and that the implementation plan will be submitted on behalf of the corporation by an individual. Hence, the Certificate is cast in the first person and the individual who gives the Certificate certifies as to various matters. He certifies that the licensee agrees to abide by the plan. He also certifies that the statements in the plan are true, complete and correct to the best of his knowledge and belief, and that they are made in good faith. Finally, the individual certifies that the implementation plan is submitted pursuant to a resolution of the directors of the licensee, and that the common seal of the licensee is affixed. The individual is required to state the capacity in which he gives the Certificate.
81. In the case of the plan lodged by WIN, the subject of the third decision, the Certificate was signed by Mr. Rushton who identified, correctly, his capacity as that of General Manager. In the case of the plans lodged by CTS, the subject of the fourth decision, the certificates were signed by Mr. Ridley as Managing Director of CTS. In each case, the common seal was also affixed. In the case of the CTS applications, the seal had placed under it the signature of the Secretary, Mr. Sturgiss, but it is clear on the face of the certificates that they were given by Mr. Ridley, the Managing Director. I should add that both Mr. Rushton and Mr. Ridley had played active parts as representatives of their respective companies in the long and complex dealings between the licensees in Approved Market C and the Minister and officers of his Department which had commenced with the publication of the Indicative Plan on 28 August 1987 and continued over the next twelve months.
82. What is the purpose of providing in the certificate to the Minister that the implementation plan is submitted pursuant to a resolution of the directors of the licensee, and that the common seal is affixed? In my view, the evident purpose is to promote ease of administration of the Act by providing the Minister with a certificate by a person of apparent capacity to speak on the matter, and thus to relieve the Minister of the need to enquire further as to the conduct of the internal management of the licensee company in and about the submission of the implementation plan. As later passages of these reasons confirm (if any confirmation were needed) the inelegant contortions in the development in company law of the so-called internal management rule are something from the toils of which the Minister, in exercising the authority given by the Act to make and follow the guidelines, might properly have wished to be free. Each of the three certificates to which I have referred was in the form laid down in the guidelines and given by a person of apparent capacity to speak for the relevant licensee. That being so, in my opinion it follows that, so far as concerns the certificates, it was correct for the Assistant Secretary to brief the Minister that the guidelines had been followed by the licensees.
83. The licensees, WIN and CTS, by their conduct of and submissions to the Court in this litigation have supported, not disclaimed, the certificates. Nevertheless, the applicant sought to go beyond the terms of the certificates and to establish its case for administrative review by showing that the certificates had wrongly certified the states of affairs of which they spoke, and that there were defects in the conduct of the management and affairs of the licensees WIN and CTS. The consequences were said to be that in each case an implementation plan had been submitted pursuant to a resolution of directors, and that the common seal was not properly affixed. As I have indicated, in my view the question is not whether the third and fourth decisions of the Minister are to be reviewed on the grounds that it is now shown that the certificates were unreliable; the question is whether the plans were not made pursuant to and so not in accordance with the guidelines, as required by sub-s. 94L (5) of the Act because they were not accompanied by Certificates of Lodgement in proper form, with the result that the discretion of the Minister under sub-s. 94M miscarried. On this footing, the approach of the applicant was not appropriate to these proceedings. I so hold.
84. However, I should express my views upon the submissions made by the
applicant under this head.
The Certificate of Lodgement for the WIN Plan
85. This Certificate was signed by Mr. Rushton who stated his capacity as
General Manager. The common seal also was affixed. The
Certificate was dated
17 August 1988. On 19 August 1988, that is to say before the Minister had
approved the plan, there was held
a meeting of persons (including Mr. Rushton)
who purported to be directors. The minutes show the following:
The Directors noted Mr. Rushton had signed an amended86. WIN is incorporated under the Companies Act 1936 (NSW). It is the wholly owned subsidiary of TWT Holdings Limited. Article 131 of the Articles of Association of WIN stated that the common seal should never be used, except by authority of the directors or a committee thereof and (subject to a qualification not presently relevant) in the presence of two directors who should sign the instrument in question with the counter-signature of the Secretary or some other person appointed by the directors.
implementation plan on behalf of the Company as a
matter of urgency at the request of the Minister of
Transport and Communication (sic).
The Directors formally adopted the amended
implementation plan and ratified Mr. Rushton's actions
in signing under seal.
87. All directors who remained in office after 7 June 1985 or who were appointed thereafter had, when the present proceedings were commenced in this Court, failed to have the shareholding qualification required by Article 89. As a result, whilst the directors at WIN had been validly appointed, by want of compliance with the requirements of Article 89, the officers of the directors had been vacated (see Companies (NSW) Code 1981 ("the Code"), ss. 221, 222). I should make it plain that there was no suggestion that the Minister or those advising him were aware of any of these matters relating to the internal management of WIN at any time before the making of the third decision.
88. I should also indicate that there is no suggestion that this condition in the internal management of WIN had arisen by other than inadvertence and that after the point had been taken in this litigation, steps were taken at a series of meetings on 10 February 1989 to have WIN's corporate house placed in order. The applicant challenged the effectiveness of what was done but, in my view, the only remaining defect in the constitution of an effective board of directors is that of the seven directors two are of or over the age of 72 years and that their appointment was not attended to in the manner required by sub-s. 226 of the Code. But the other directors are validly in office and provide a quorum to satisfy the requirements of the Articles and the Code. On 10 February 1989, a general meeting of the members of WIN passed resolutions expressed to ratify and validate various past activities of de facto directors. There was debate also before me as to the effect of those resolutions but it is not appropriate to resolve that issue. The issue before me concerns the case for review of the third decision of the Minister in the circumstances as they were when he made that decision. If I found adversely to the Minister, then the question of ratification could perhaps influence the exercise of the discretion the Court has as to the grant of relief (Administrative Decisions (Judicial Review) Act, s. 16). But as will be apparent, I do not reach in my reasons the stage where s. 16 becomes applicable.
89. On the hypothesis upon which the applicant's submissions proceed, the first question is to construe the meaning of the statement specified in the Certificate of Lodgement that the implementation plan is submitted "pursuant to a resolution of the directors of the licensee company" and that the common seal is affixed to the Certificate.
90. In my view, the person giving the Certificate certifies that that which is affixed is in truth the common seal of the licensee; he does not certify that it is affixed pursuant to a resolution of the directors of the licensee. It is no doubt true that the articles of a corporation shall be used only by the authority of the directors (see e.g. Reg. 84 of Table A in Schedule 3 to the Code). But this is not necessarily so. A governing director may have extraordinary powers. The company in general meeting may, in a given case, have authority to direct use of the common seal: Norton on Deeds, 2nd Ed., 1928, pp. 15-16, cited in Ford, Principles of Company Law, 4th ed., pp. 102-103. The statement in the Certificate as to the common seal serves to vouch the identity of the seal, not the regularity of the means by which it came to be affixed to the Certificate.
91. Further, in my view, the reference in the Certificates to a resolution of directors includes a resolution by those discharging the duties of directors and liable as such.
92. The concepts with which Sir Owen Dixon dealt in his article on "De Facto
Officers" (1938) 1 Res Judicatae 285, may have but a limited operation with
respect to companies incorporated under the Companies Acts (see Corporate
Affairs Commission
v Drysdale [1978] HCA 52; (1978) 141 CLR 236 at 250 per Aickin J. and cf.
at 245, per Murphy J; see also Winton v Jolliffe (1988) 78 ALR 187 at 189).
However, the executor de son tort and the trustee de son tort have a long
history and it is to be remembered that in the
19th century the director was
often treated as a species of trustee; see Elders Trustee & Executor Co.
Limited v E.G. Reeves Pty.
Limited [1987] FCA 332; (1987) 78 ALR 193 at 230-231. In sub-s. 5
(1) of the Code, "director" is defined in relation to a corporation as
including, inter alia, any person
acting in the position of a director of a
corporation, whether or not duly authorised to act in that position. The
origin of this
definition may be traced back to the Companies Clauses
Consolidation Act 1845 (UK), s. 3; see Corporate Affairs Commission v
Drysdale
(supra at 248, per Aickin J). That case is authority that a de facto
director who held over after his appointment as a director
had terminated was
obliged within the meaning of sub-s. 124 (1) of the Companies Act 1961 (NSW)
to act honestly and use reasonable
diligence in the discharge of those duties
(see now s. 229 of the Code). Under the Code it is an offence for a person
whose office
is vacated for failure to obtain his share qualification to
purport to act as a director unless he is validly reappointed as a director
(sub-s. 222 (5) of the Code). Nevertheless, as Mason J. put it (supra at
243):
There is no inconsistency in acknowledging that he93. It is against this background that one comes to construe the requirement in the guidelines that the Certificate of Lodgement contain a certification that the implementation plan is submitted to a resolution of the directors of the licensee company. In my view, the form of words used in the Certificate is apt to include a resolution by persons each acting in the position of a director, even though their appointments may have terminated for want of compliance with a requirement as to share qualification.
should not attempt to discharge the duties of an
office to which he has no title and in going on to
say, as the sub-section does, that if he does set
about discharging those duties he shall do so in the
manner described by the sub-section.
94. There remains the circumstance that at the time of the dating of the Certificate by Mr. Rushton, there was not in existence a resolution even by the de facto directors. However, I have referred to the resolution of two days later, 19 August 1988. The result is that on the interpretation I have given of the words in the guidelines that plans be submitted "in accordance with" the pro formae, there was at the time the Minister approved the plans a resolution by those discharging the duties of directors which adopted what had been done, and the brief to the Minister, dated 24 August 1988, accurately stated that the guidelines had been followed.
95. It may be, as the applicant submitted, that the de facto directors in acting as they did were acting in contravention of sub-s. 222 (5) of the Code. Even if (which I do not attempt to decide in these proceedings) that were so, that would not mean that the Certificate of Lodgement was inaccurate.
96. I should add that Mr. Rushton had been appointed as General Manager by resolution of the directors of WIN at a time when the directors were, on any footing, validly in office. The submission of the implementation plan was, in my view, plainly within the scope of his authority as General Manager.
97. It is unnecessary to determine whether in these proceedings any reliance
effectively might have been placed by the Minister or
WIN, as an answer to the
case brought by CTC upon sub-s. 224 (2) of the Code. This renders valid
certain acts by de facto directors
for certain purposes.
The CTS Certificates of Lodgement
98. The applicant also asserted a deficiency in the Certificates of Lodgement in respect of the two CTS plans which gave rise to the fourth decision challenged by the applicant in these proceedings. There was no complaint that the directors of CTS lacked capacity to act as such. The certificates in each case were, as I have said, under the hand of the Managing Director, Mr. Ridley. The common seal appears on the face of each certificate together with the signature of the Secretary, Mr. Sturgiss. Consistently with what I have earlier said, this should be regarded as surplusage.
99. Again, the applicant submitted that in deciding whether the implementation plans were in accordance with the guidelines, one should go behind the face of the certificates. It was submitted that if one did so, the result was a revelation of irregularity in the internal management of CTS. CTS is incorporated in New South Wales. Article 151 (a) of the Articles of Association provides that (i) every instrument to which the common seal is affixed shall be signed by a director, counter-signed by another director or the secretary, and (ii) the common seal shall never be used except in pursuance of a resolution of directors or a committee of directors. On the face of the Certificate the first limb of Art. 151 (a) was complied with and there was nothing to inidicate the second had not been complied with.
100. The certificates in question were signed by Mr. Ridley, the Managing Director, and Mr. Sturgiss, the Secretary. However, in the circumstances revealed by the evidence in this case, the applicant submitted that the common seal of CTS had not been affixed to the certificates in accordance with the Articles of Association. The assumption in this submission is that the reference in the form of the certificate to the common seal having been affixed is to be read as requiring the affixing of the common seal to satisfy the requirements as to formality in the Articles of Association of the licensee concerned. When dealing with the WIN Certificate, I rejected this submission, and I do so again in relation to the CTS Certificates. However, for the purpose of testing the applicant's submissions as to the CTS Certificates, I shall assume this submission to be correct.
101. It appears that there was a meeting of directors of CTS at about 9 am to 9.20 am on 18 August 1988. Mr. Sturgiss previously had caused to be printed by a word processor the plans which were to be lodged. Following the meeting, Mr. Sturgiss affixed the seal of CTS to the Certificate of Lodgement of each of the original plans and he himself signed below the seal. He then photocopied the certificates, attaching to them before photocopying a signature of Mr. Ridley taken by him from another document signed previously by Mr. Ridley. Mr. Sturgiss took these steps in Orange. He then caused the plans, including the photocopy certificates, to be sent by facsimile transmission to the Minister. Finally, Mr. Sturgiss sent the original plans, including the certificates to which he had affixed the seal, by courier to Mr. Ridley in Sydney. Mr. Ridley signed the originals and caused them to be sent by courier to the Minister.
102. In this haste, Article 151 had not been complied with. The certificates to which the common seal had been affixed had not been signed by Mr. Ridley and counter-signed by Mr. Sturgiss.
103. However, where on the face of an instrument there is nothing to suggest
irregular execution for want of compliance with the
Articles, as in this case,
then as between the company and persons such as the Minister who have no
notice of the irregularity the
execution is valid: County of Gloucester Bank v
Rudry Merthyr Steam and House Coal Colliery Co. (1895) 1 Ch 629. This is an
illustration of the principle that where persons are conducting the affairs of
a company in a manner which appears to
be consistent with the Articles of
Association, then those dealing with them are entitled to assume that all has
been done regularly,
and those persons are not affected by any internal
irregularity, a principle flowing from The Royal British Bank v Turquand
[1856] EngR 470; (1856) 6 El. & Bl. 327; 199 ER 886.
The Rule in Royal British Bank v Turquand
104. The current view in England is that the rule in Turquand's case is an application of ordinary principles of the law of agency, rather than a rule unique to company law. In Australia, the view has been expressed that the rule rather was a development of the principle that in the absence of fraud on the corporation, mistake, duress or legislative intention, a statutory or chartered corporation was bound by the affixing of its seal to a document if the transaction was within the powers of the corporation; the seal was treated as the corporate equivalent of the signature of an individual, and was regarded as the formal and for many purposes the only expression of the assent by the corporation: The Registrar-General v Northside Developments Pty. Ltd. (NSW Court of Appeal, 1/11/1988, unrep., per McHugh J.A. with whom Samuels JA agreed); this decision is presently under appeal to the High Court. At common law, the rule once was that a corporation could not manifest its intention by any personal act or oral discourse and that it spoke and acted only by its common seal. But by 1827, Chancellor Kent (Commentaries on American Law, Vol. II, p 232) spoke of this as an ancient and technical rule. In doing so, he relied upon judgments of the United States Supreme Court delivered by Story J. who had explained various qualifications to the rule, even as it applied to corporations existing by the common law, and had stated that it had no application to corporations created by statute: Bank of Columbia v Patterson's Administrator (1813) 2 Curtis 540 at 543-544; Fleckner v Bank of the United States (1823) 5 Curtis 437 at 443. The instruments setting out the manner of internal management of corporations created by statute were publicly available and provided for the business of the corporation to be transacted by a special body or board of directors. Sub-section 80 (7) of the Code now provides that a document or proceeding requiring authentication by a company need not be authenticated under common seal and may be authenticated by the signature of an officer of the company, although as the applicant contends is the case here, another law still may require authentication in some particular manner.
105. The common law remains of some importance today because it helps explain why the affixing of the common seal of a corporation to a document, attested by signatures, does not of itself render the document a deed, although it may still be an effective manifestation of the corporate will: Electricity Meter Manufacturing Coy. Ltd. v Manufacturers' Products Pty. Ltd. (1930) 30 SR (NSW) 422; Square D. Co. v C.J. Kern Contractors Inc. 318 SE 2d 527 at 529-530 (1984). It is not necessary for the purposes of this case to consider further the juridical root of the doctrine in Turquand's case. It is sufficient to indicate that it applies to the facts here.
106. Reference was made in argument to s. 68A of the Code, a provision introduced after the events which gave rise to the above litigation before the New South Wales Court of Appeal. In certain circumstances, a person is entitled to assume in relation to dealings with a company that a document has been duly sealed by the company if it bears what appears to be an impression of the seal of the company and the sealing of the document appears to be attested by two persons, one of whom may be assumed to be a director of the company, and the other of whom may be assumed to be a director or a secretary of the company: sub-s. 68A (3) (e).
107. This assumption may be made by a person having "dealings" with another
who has acquired, or who purports to have acquired, title
to property from a
company, and in any proceedings in relation to those dealings any contrary
assertion, whether by the company or
by the second-mentioned person, shall be
disregarded: sub-s. 68A (2). This has no application to the present case.
However, sub-s.
68A (1) provides:
68A.(1) A person having dealings with a company is,Sub-section 68A (4) disentitles the person in question to make the relevant assumptions if, to put it shortly, he had actual knowledge to the contrary or he ought to have known of the true position.
subject to sub-section (4), entitled to
make, in relation to those dealings, the
assumptions referred to in sub-section (3)
and, in any proceedings in relation to those
dealings, any assertion by the company that
the matters that the person is so entitled
to assume were not correct shall be
disregarded.
108. Does s. 68A (1) apply to the present case? Are there two limbs to sub-s. 68A (1), linked by "and", each with its own operation? Upon the applicant's hypothesis, the issue arises in relation to the circumstances in which the certificates were sealed by CTS, and the Minister was, in my view, a person having dealings with CTS. However, the second limb of sub-s. 68A (1), which deals with proceedings in relation to dealings with a company, is concerned simply with the disregarding of assertions by the company. No such assertion is made by CTS in the present case. The assertion is made by a third party, the applicant. In view of the particularity of the second limb of sub-s. 68A (1), it is not possible, in my view, to construe the general words of the first limb so as to apply them to the present case and thereby treat the Minister as entitled to make the assumptions in question.
109. However, for the reasons I have indicated, reliance may be placed on the rule in Turquand's case. It is true that in many of the authorities and writings on the subject, Turquand's case is treated as concerned simply with the position of parties contracting with the company. This is how the subject is approached in Halsbury's Laws of England, 4th Ed., vol. 7 (1), para. 980; Ford, Principles of Company Law, 4th ed., pp. 90-110. The dealings between CTS and the Minister were not contractual in character. On the other hand, in Turquand's case itself, Jervis C.J., who gave the judgment for the Court of Exchequer Chamber, spoke in terms of "dealings", and did not limit the transactions comprised in that term. That no doubt may help explain the use of the term "dealings" in sub-s. 68A of the Code.
110. Secondly, it has been suggested that s. 68A of the Code may effect a
codification as well as clarification of the indoor management
rule as it
applies to "companies" within the definition of that term in the Code.
(Section 68A is not expressed to apply to corporations
generally.) In
Barclays Finance Holdings Ltd. v Sturgess (1985) 3 ACLC 662 at 667, in
speaking of s. 68A, Wood J. said:
There can be little doubt that these provisions were111. But s. 68A appears to be not so much a comprehensive code as a provision designed to repair the failings of the common law. In these circumstances, and to adapt what was said by Mason CJ and Wilson J. in Hungerfords v Walker (High Court, 9/2/1989, unrep., p. 20 of print), it would be ironic if a legislative attempt to correct defects in the common law resulted in other flaws becoming ossified in the common law. Whilst s. 68A in some of its operations undoubtedly clarifies the rule in Turquand's case and deals more effectively with the mischief and inconvenience to which the rule was directed, nevertheless there remains scope outside s. 68A for the development of the rule in Turquand's case. Assume A sues B for damages in tort for inducing company X to break its contract with A, and B denies formation of the contract on the ground of an irregularity in the internal management of company X. If, as seems to be so, sub-s. 68A of the Code does not apply, may not A rely on the rule in Turquand's case to meet the allegation by B? Likewise in the present case, the assertion of want of compliance with the Articles is made by a third party, not by the company or by the party having dealings with the company. Sub-section 68A (1) of the Code will not apply. Nor, in the situation of the present case, will sub-s. 68A (2) apply; this sub-section does postulate the tri-partite relationship, but fixes upon the acquisition of property from the company.
enacted, inter alia, to clarify and codify the indoor
management rule developed from the decision in Royal
British Bank v Turquand [1856] EngR 470; (1856) 6 E & B 327; to
overcome the distinction drawn in Morris v Kanssen
(1946) AC 459, between defective appointments and
non-existent appointments; to overcome the view arising
out of Ruben v Great Fingall Consolidated (1960) AC
439, that the indoor management rule cannot assist in
the case of forgery; and to codify the rule in Howard
v Patent Ivory Manufacturing Co. (1888) 38 Ch D 156 to
the effect that a third party could not take advantage
of the indoor management rule if he had notice, actual
or constructive that the person with whom he was
dealing lacked the authority of the company.
112. In a case such as the present, where the question propounded by the applicant is whether a legislative requirement had been satisfied at a particular date by what was put forward as the act of a company, and where the point is taken against the company and the party dealing with the company by a third party in proceedings to which all of them are joined, in my view the company and the party dealing with it may, in those proceedings, claim the benefit of the rule in Turquand's case to support their case that what took place did comply with the relevant legislative requirement. This is so irrespective of what consequences might flow from a purported ratification by the company after the occurrence of events relied upon for the making of decisions as to statutory rights and duties.
113. Accordingly, the applicant has not, on any footing relied upon by it,
made out the submission that the CTS Certificates were
not executed in
accordance with the guidelines.
Other Alleged Failures of the WIN and CTS Implementation Plans
114. The guidelines require that "the actual implementation plan pro formae"
shall contain, as Part 3, material relating to aggregation.
Part 3 contains
the question:
To what extent have the stages and timetable describedBefore the submission of the WIN plan and the CTS plans, there had been detailed consultations between the licensees and the Minister on this subject. In the brief to the Minister by the Assistant Secretary, of 24 August 1988, there was much discussion of what had transpired. It is against this background that it is proper to evaluate the response of the various licensees to the question asked of them in Part 3.
in Annex A to this part been co-ordinated with the
other licensees in the approved market (s 94M (1)
(e))?
115. Thus, WIN dealt with the question by referring to the history of what
had happened in a way that would be readily cognizable
by those to whom the
answer to the question was addressed. WIN said:
There have been numerous meetings over the past monthsThe applicant contends that this was an inadequate answer. When it is read in the way I have suggested it is, to my mind, plainly quite adequate. As a further point, the applicant pointed to the second sentence in the answer as indicating that WIN was making conditional its submission of the implementation plan. The words in question did no more than record a point previously made in dealings between WIN and officers of the Minister's Department. If it matters, the applicant's implementation plan dated 13 September 1988, is also conditional in the sense that it states that the applicant proposes to take legal action challenging the earlier decisions of the Minister.
between licensees. These have taken place at both
engineering and executive level. All other licensees
in (approved market C) are aware of our objectives and
the basis on which they have been developed, as we are
of theirs.
In addition, as discussed with the Minister and
Departmental Officers in the past, this implementation
plan is submitted on the condition that the closure of
channels 4 and 5A occurs simultaneously and not before
the commencement of aggregation.
116. Part 3 of the pro formae also states:
Attach as Annex A to this part, details of the stages117. The WIN implementation plan, in dealing with the areas of Cobar and Nyngan, stated as the proposed on-air date "to be evaluated". The applicant submitted that this meant that for those areas there had been a want of compliance with the guidelines. I do not believe this is so. An answer was given, the guidelines followed and it was for the Minister to evaluate the answer. Again, if it matters, the same treatment was to be found in various areas described in the implementation plan submitted by the applicant in September 1988.
and timetable proposed by the licensee (and/or
expected to be proposed by the licensee of a
consolidated licence), for extension of services into
the aggregation area of the licence before the
aggregation completion dated of 31 December 1996.
The stages and timetable should be presented in
tabular form under the headings of:
Area Served Transmitter Site On-Air Date
118. Then it was said that Form EQ3 referred to in the guidelines as containing information that was to accompany an implementation plan was not provided with the WIN plan. However, the evidence shows that before the WIN plan was lodged, Mr. Rushton raised with an officer of the Department the necessity for provision of form EQ3. The officer said that this was not needed, and the Department already had all the details from earlier communications between WIN and the Department. It was, in my view, open to the Minister to treat the information specified in form EQ3 as having already been provided, and as therefore not requiring duplication. That was an application of the guidelines, not a defiance of them. The material within the meaning of the guidelines might precede the implementation plan, but still accompany it, the point being that the plan plus the information, in satisfactory form, all came to the hands of the Minister.
119. There remain certain alleged deficiencies which the applicant alleged rendered the CTS implementation plans not in accordance with the guidelines.
120. The licences involved, CBN-8 and CWN-6 were eligible for consolidation.
The pro formae (Annex A to Part 1) asked whether there
was an intention to
consolidate each licence with any other licence. In the case of both CWN-6
and CBN-8, this was answered "yes".
However, the balance of the material
provided with each implementation plan stated the following:
On 26 February 1988 Country Television Services121. A consolidated licence would be a new and different licence and the consolidation was not to be effected by the existing licensee CTS. The material provided was, in my view, an adequate compliance by CTS. In particular, in the circumstances of those applications, it was appropriate to alert to the Minister to circumstances which could call for the application of s. 94R, dealing with the effect of a transfer of a licence upon an implementation plan and the effect of this upon consolidation procedures.
Limited entered into an agreement to sell CBN-8 and
CWN-6 licences to Dylbout Pty. Limited, a subsidiary
of Ramcorp Limited. An application for approval of
this transfer was lodged with the Australian
Broadcasting Tribunal ("ABT") on 3 March 1988. We
understand that Ramcorp Limited will make the
necessary application for consolidation once the ABT
has approved the transfer of the licences for CBN-8
and CWN-6. Any further information required
concerning the proposed consolidation timetable should
be sought from Ramcorp Limited.
122. It was also submitted by the applicant that to read the answer "yes" in relation to consolidation in the qualified manner suggested, would be to re-write the document and replace "yes" by "no". However, courts regularly interpret words in such a fashion so as to make a document sensible, and there is no reason why the Minister was not free to act likewise. Thus, in Fitzgerald v Masters [1956] HCA 53; (1956) 95 CLR 420, the High Court construed the word "inconsistent" which appeared in a contract for the sale of land as meaning "consistent"; see also Watson v Phipps (1985) 60 ALJR 1 (PC).
123. Finally, the applicant complained that in respect of the CTS applications, no form EQ3 was attached. Again, as with WIN, this matter had been discussed before the plans had been lodged. Mr. Sturgiss was told by an officer of the Department that it was not necessary "to send a new EQ3". The "old" EQ3 was that which had accompanied earlier dealings between the parties. The same conclusion applies here as with the like complaint made with respect to the WIN implementation plan.
124. It follows that all the complaints as to failure of the implementation
plans the subject of the fourth and fifth decisions to
be in accordance with
the guidelines, fail. Upon a proper construction of the relevant guidelines,
what was done by the applicants
enabled the Minister to act on the footing
that the plans were in accordance with the guidelines within the meaning of
sub-s. 94L
(5). Accordingly, I accept as accurate the statement in the brief
to the Minister that the guidelines had been followed by licensees.
It
follows from this that no complaint arises as to the manner in which the
Minister had regard to the guidelines within the meaning
of sub-s. 94M (1)
(b). Further, no question arises as to the consequence of any failure to
follow the guidelines upon the exercise
of the Minister's discretion pursuant
to ss. 94M and 94N of the Act.
Conclusions
125. The result is that the applicant has not made out a case for review of the third or fourth decisions. As I indicated earlier in these reasons, the applicant indicated that if it failed in respect of the third and fourth decisions, there would be no point served in pursuing the review of the first and second decisions.
126. Accordingly, the application is dismissed. The applicant should pay the costs of the respondents.
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