Re Australian Broadcasting Tribunal v Bond Corporation Holdings Limited; Dallhold Investments Pty Limited and Alan Bond [1989] FCA 44 (3 March 1989)

FEDERAL COURT OF AUSTRALIA

Re: AUSTRALIAN BROADCASTING TRIBUNAL
And: BOND CORPORATION HOLDINGS LIMITED; DALLHOLD INVESTMENTS PTY
LIMITED AND ALAN BOND
No. NSW G1430 of 1988
FED No. 108
Broadcasting - Judicial Review

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Sheppard(1), Beaumont(2) and Burchett(3) JJ.

CATCHWORDS

Broadcasting - Cross media rules and restrictions - Broadcasting Act 1942, ss.92FAB, 92FAC - Grant of extension of the period referred to in s.92FAB(9) - Whether the Australian Broadcasting Tribunal could consider more than one application under s.92FAB(10) for extension of the period - Whether more than one extension could be granted upon the one application - Scope of the Tribunal's discretion under s.92FAB(9) - Whether the Tribunal's discretion had been properly exercised - Whether there was a failure to consider relevant considerations - Whether there was an onus on an applicant, and particularly an onus to show clearly or "convince" the Tribunal - Whether the discretion was conditioned upon a demonstrated necessity for an extension - Duty to consider fairness in all the circumstances of the crystallisation at a particular time of a serious criminal offence - Commercial advantage or disadvantage to the respondents of extending or refusing to extend the period in accordance with the application a relevant consideration - Whether subs.(9) provides for a "period of grace".

Judicial Review - Administrative Decisions (Judicial Review) Act 1977 - subss.16(1)(b) and (d) - Whether the Court could direct the Tribunal to grant a further extension of the six month period.

Broadcasting Act 1942, ss.89W, 92FAB, 92FAC

Acts Interpretation Act 1901, 15AB, 23, 33

Administrative Decisions (Judicial Review) Act 1977, s.16(1)(b), (d)

HEARING

SYDNEY
3:3:1989

Counsel for the Appellant: Mrs P. Flemming, QC

Mr L. Grey

Solicitor for the Appellant: Australian Government Solicitor

Counsel for the Respondents: Mr R.J. Ellicott, QC
Mr D.K. Catterns

Solicitors for the Respondents: Blake Dawson Waldron

ORDER

The appeal be dismissed.

The cross-appeal be allowed.

The decision of the appellant made on 31 October 1988 pursuant to s.92FAB of the Broadcasting Act 1942 ("the Act") to refuse the application of the respondents pursuant to s.92FAB(10) of the Act for an extension until 30 April 1989 of the period referred to in s.92FAB(9) of the Act be set aside as at and from 1 January 1989.

The appellant pay the respondents' costs of the appeal and of the cross-appeal.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

In this matter I have had the advantage of reading the judgment to be delivered by Burchett J. I agree in his reasons and conclusions and with the orders he proposes. I have nothing to add.

In this matter I have had the advantage of reading the judgment to be delivered by Burchett J. I agree with his reasons and conclusions and with the orders he proposes.

The course of events which has led to this appeal commenced with the acquisition on 29 April 1988, by a subsidiary of the first respondent, of 19.9% of the shareholding in The Bell Group Limited ("Bell"). That triggered the operation of the "cross media" provisions of the Broadcasting Act 1942 ("the Act"). For Bell indirectly controlled (and thus had a "prescribed interest" in) two Perth newspapers which, within the meaning of s.92FAC of the Act, were "associated with the service area of the licence" of Perth commercial television station STW 9, then already held by a wholly owned subsidiary of a company indirectly controlled by the first respondent. The second respondent controlled the first respondent, and was in turn controlled by the third respondent, with the result that these respondents came within the same provisions of the Act which affected the first respondent.

2. Those who directed the affairs of the respondents did two things, following the acquisition of 29 April 1988. One was to give the appropriate notice, under s.92FAC(1) of the Act, to the Australian Broadcasting Tribunal, the appellant, which will also be referred to in these reasons as "the Tribunal". The other was to launch a take-over bid for Bell. That took some time to consummate, after fairly complex negotiations. Representation on the board of directors of Bell, with full access to information, was not achieved until early August. Very promptly after this denouement (indeed, preliminary arrangements had been made in July), experienced investment bankers were retained to sell STW 9, Perth.

3. It was necessary that action be taken to dispose of either the television station or the newspapers because of the terms of s.92FAB of the Act, which relevantly provides as follows:

"(1) A person contravenes this section if,
and so long as:
(a) the person has a prescribed interest in
a commercial television licence; and
(b) the person has a prescribed interest in:
...
(ii) a newspaper that is associated with
the service area of the commercial
television licence.
...
(8) This subsection applies to a person in
relation to a transaction (whether or not the
person is a party to the transaction) if:
(a) the transaction is in respect of shares
in a company that publishes a newspaper,
or shares in a company that has an
interest in a company that publishes a
newspaper; and
(b) the person is required by section 92FAC
to give the Tribunal notice of an
acquisition by the person of a
prescribed interest in the newspaper,
being an acquisition arising from the
transaction.
(9) Where a person contravenes this section
as a result of a transaction, being a
transaction in relation to which subsection
(8) applies to the person, the person is
guilty of a separate offence in respect of
each day (including the day of a conviction
under this subsection or any subsequent day)
during which the contravention continues:
(a) if the person is guilty of an offence
against subsection 92FAC (3) in relation
to the transaction - after the day in
respect of which the offence, or the
first such offence, is committed and
until the day in respect of which the
person ceases to be guilty of any
further offence against that subsection;
or
(b) in any other case (including a case
where the person is guilty of an offence
against subsection 92FAC (3) in relation
to the transaction but has subsequently
ceased to be guilty of any further
offence against that subsection) (this
bracket was omitted in the Government
Printer's copy of the Broadcasting
(Ownership and Control) Act 1987 by
which the section was inserted into the
Act) - after the end of:
(i) if the transaction took place
before the commencement of this
section - the period of 6 months
after the commencement of this
section; or
(ii) if the transaction takes place
after the commencement of this
section - the period of 6 months
after the transaction takes place;
or such further period as the Tribunal,
on application, allows by notice in
writing served on the person.
(10) A person may apply to the Tribunal for
an extension of the period referred to in
subsection (9):
(a) if the person is a party to the relevant
transaction - before the end of that
period; or
(b) if the person is not a party to the
relevant transaction - before the end of
that period unless the Tribunal is
satisfied that:
(i) the person's failure to apply
before the end of that period was
due to circumstances beyond the
person's control or occurred
through the person's inadvertence;
and
(ii) the person gave notice under
section 92FAC as soon as
practicable after becoming aware of
the contravention.
..."

4. The respondents accepted that s.92FAB (1) and (8) applied to them in relation to the acquisition made on 29 April 1988. They therefore had a period of six months from that date, or such further period as the Tribunal might allow under subs.(9), in which to remove the contravention of the section. The method chosen to achieve this was by sale of STW 9, Perth.

5. In October 1988, an application was made by the respondents, under s.92FAB(10), for an extension of the period allowed until 30 April 1989. To support that application, they urged the difficulties they had faced by reason of the delayed take-over of Bell, and lack of information for more than half the period of six months set by Parliament, but set subject to discretionary extension to meet exigencies. They also urged the inherent complexity of a disposal of a television station. Evidence was provided that it might take until 30 April 1989 to effect and complete a sale.

6. On 31 October 1988, the Tribunal made a decision extending the period only until 31 December 1988. It announced that it would provide reasons for this decision at a later date. Reasons were not in fact provided until 28 November 1988. The Tribunal apparently took the view that the Act required an application for an extension to be dealt with prior to the expiry of the period of six months. On the basis that, in this case, the period expired on 29 October 1988, a Saturday, the Tribunal made its decision on Monday 31 October 1988, relying on s.36(2) of the Acts Interpretation Act 1901. But the view that this was necessary seems hardly consonant with s.92FAB(10), by which a party has a statutory right, until the end of the period, to apply for an extension. The section must contemplate, in view of the possibility of an application at the last moment, that a decision may be made outside the period.

7. Three days after their receipt of the Tribunal's reasons, the solicitors for the respondents, on 1 December 1988, wrote to the Tribunal advising that "steps are further advanced towards the disposal of prescribed interests in STW 9," and that "it is envisaged that Heads of Agreement may be executed in the relatively near future but that such Agreement may well be subject to, inter alia, finance." It was stated to be "most unlikely that any such Agreement will be able to be completed (in the sense that the relevant prescribed interests will have been disposed of) by 31 December 1988." The letter proceeded to make application for a further extension until 30 April 1989. It noted the Tribunal had already indicated it took the view it had no power to grant more than one extension of time and sought advice, before the submission of further material in support of the application, whether the Tribunal considered it had power to entertain the application. The Tribunal responded by letter dated 5 December 1988, reaffirming its view "that it does not have the power to grant a second extension."

8. By their amended application, the respondents sought review, under the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act"), of the decision made on 31 October 1988 to refuse an extension until 30 April 1989, and also of the decision made on 5 December 1988 to refuse to entertain the application for an extension of the period until 30 April 1989. These were referred to respectively as "the first decision" and "the second decision".

9. Gummow J., who heard the application as a matter of urgency on 12 and 13 December 1988 and delivered judgment on 14 December 1988, held that both decisions were vitiated by error of law. However, his Honour set aside only the second decision, making an order which directed the Tribunal to allow an extension up to and including 31 January 1989. That order was made on the basis, not that such an extension was the appropriate extension to allow, but that it would be unreasonable not to allow at least so much, and that the urgency of the matter and the approach of the holiday period required, in order to do justice between the parties, the making of such an order under s.16(1)(d) of the Judicial Review Act.

10. The appellant appeals against his Honour's orders on the grounds, first, that the Act does not contemplate more than one extension of the six months period limited by s.92FAB(9); and secondly, that it was not proper for his Honour to direct the Tribunal to grant a particular period of extension, even a minimum period such as that specified. The respondents cross-appeal, seeking an order that the first decision be set aside, though with effect from 1 January 1989. By notice of contention, in response to the cross-appeal, the appellant contends that his Honour erred in concluding that the Tribunal, when making the first decision, had not exercised its powers according to law.

11. It is convenient to deal first with the question of statutory construction upon which the second decision depends.

12. Section 92FAB(1) creates what is called a contravention, but does not create an offence. That is hardly surprising, since the contravention may be involuntary. But then subs.(9) creates serious offences "in respect of each day ... during which the contravention continues ... after the end of" the applicable period under paragraph (b) of the subsection. That period may be the period of six months after the commencement of the section, the period of six months after the transaction takes place, "or such further period as the Tribunal, on application, allows by notice in writing served on the person." It is not accurate to say that the statutory period, specified in subs.(9), is six months; it is six months or such further period as is allowed. Nor is it consonant with the provisions, read in their entirety, to call either of the periods of six months a "period of grace". It is the minimum period during which Parliament thought a particular state of affairs should be lawful, though made unlawful if continued beyond the period provided for in the section. Use of the coloured expression mentioned cannot be justified by reference to the explanatory memorandum relating to the section, since the ordinary meaning conveyed by the text is to the contrary, is not ambiguous or obscure, and does not lead to a manifestly absurd or unreasonable result. (See s.15AB of the Acts Interpretation Act 1901, and note subs.(3).) In Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514 at 518 (and see also at 532) it was said:

"The words of a Minister must not be
substituted for the text of the law.
Particularly is this so when the intention
stated by the Minister but unexpressed in the
law is restrictive of the liberty of the
individual."

13. When subs.(10) commences with the words: "A person may apply to the Tribunal for an extension of the period referred to in subsection (9)," the words "the period" cannot mean one period and that only, since there are three periods referred to in subs.(9). The words must refer to the period which is applicable in the circumstances. In a case where a further period has been allowed, that period is then "the period referred to in subsection (9)" which is applicable in the circumstances. At any given time, there will, of course, be only one period to which the facts will point.

14. It is difficult to see any reason of policy which would militate against the natural reading of the language. The appellant concedes that more than one application could be made during whichever of the periods of six months mentioned in subs.(9) might be applicable in a particular case. An applicant might, early in the period, foresee a need for an extension and make an application. The extension sought might be granted. Later, but still before expiry of the initial six months, such an applicant might realize that a further extension would be required, and the concession acknowledges that this could be granted. If the section provides for this degree of flexibility, and given the complexity and unpredictability of transactions with which it is concerned, there is no reason to suppose Parliament intended to remove the matter from the possibility of any further discretionary decision by the Tribunal upon the expiry of the initial period. A rigid approach of that kind could only lead to hit or miss decision making upon a guess as to the appropriate period. It is easy to envisage, for example, a case where the Tribunal might be entirely satisfied that the period should be extended until completion of a transaction then proposed or actually the subject of a concluded contract. The date of completion might, however, be quite uncertain. It would be likely to be capable of being affected by independent parties. There is no reason to think that Parliament did not intend the Tribunal to be able to grant an extension for the minimum period needed, having power to grant a further extension should the circumstances require it.

15. If, contrary to what has already been said, subs.(10) should be regarded as involving an ambiguity, so that it could be read as excluding an application made after the initial period applicable in the circumstances, powerful considerations would require that the ambiguity be resolved against a restrictive construction. This is because s.92FAB creates offences, and also involves an invasion upon rights of property. It should not be interpreted, if it be ambiguous, against the subject.

16. An argument was advanced on behalf of the appellant that the exception in favour of a person not a party to the relevant transaction, made by paragraph (b) of subs.(10), suggests paragraph (a) is concerned only with the applicable initial period of six months. But paragraph (b) presents no difficulty. The words "that period" in it refer, as the same words do in paragraph (a), to the words, already discussed, with which the subsection commences, "the period referred to in subsection (9)." The questions posed by paragraphs (a) and (b) can each be answered with equal facility at the time when a particular application is made.

17. From a practical point of view, the position might not be very different even if subs.(10) were construed as limiting the right to make applications to applications made before the expiry of the appropriate six months period. For the power conferred on the Tribunal by subs.(9), read in the light of the Acts Interpretation Act, may not be exhausted upon the making of one decision in respect of an application lodged within the six months. Section 23 of the Acts Interpretation Act could extend the expression "such further period" in subs.(9) to embrace further periods (that the application of s.23 is not easily excluded is made clear by the decision of the Privy Council in Sin Poh Amalgamated (H.K.) Limited v. Attorney-General of Hong Kong (1965) 1 WLR 62), and s.33 may enable the power conferred by subs.(9) to be exercised "from time to time as occasion requires." See Parkes Rural Distributions Pty Ltd v. Glasson (1986) 7 NSWLR 332, and contrast Scarfe v. The Federal Commissioner of Taxation (1920) 28 CLR 271 where a contrary intention appeared from the terms of the legislation. It is difficult to see a contrary intention in the Broadcasting Act in respect of the power conferred by subs.(9) of s.92FAB, the inherent complexity of the transactions involved and the difficulty of fixing a period for them in advance being major reasons for conferring the discretion upon the Tribunal.

18. It follows from the foregoing discussion that the second decision cannot stand. But the appellant then says that the matter should simply have been referred back to it, as the Tribunal, to exercise its discretion in accordance with law. As has been said, his Honour, in the particular circumstances, decided to direct the Tribunal to grant a further minimum period, leaving the ultimate question of the full period which might be thought appropriate to the Tribunal's later determination.

19. Under s.16(1)(b) and (d) of the Judicial Review Act, the court is empowered, in its discretion, to make:

"(b) an order referring the matter to which
the decision relates to the person who
made the decision for further
consideration, subject to such
directions as the Court thinks fit;
...
(d) an order directing any of the parties to
do, or to refrain from doing, any act or
thing the doing, or the refraining from
the doing, of which the Court considers
necessary to do justice between the
parties."

In Minister for Immigration and Ethnic Affairs v. Conyngham (1986) 11 FCR 528 at 536 Sheppard J. (with whom Beaumont and Burchett JJ. agreed) said:

"In my opinion s 16(1)(d) plainly confers
power upon the court, in an appropriate case,
to order a decision-maker, whether a Minister
of the Crown or other public official, to
decide a matter in a particular way. The
same considerations may apply where the
decision-maker is a board, a committee or a
tribunal. The words, 'an order directing any
of the parties to do ... any act or thing ...
the doing ... of which the Court considers
necessary to do justice between the parties',
should be given their plain and ordinary
meaning."

At 537 his Honour made it clear that the last statement was subject to the qualification that the section "should receive the liberal construction normally given to remedial legislation." The extent of the power, in an appropriate case, is illustrated by Sordini v. Wilcox [1983] FCA 57; (1983) 70 FLR 326; cf. The Queen v. Anderson; Ex parte Ipec-Air Pty Limited [1965] HCA 27; (1965) 113 CLR 177 at 188.

20. Gummow J. took into account the urgency, to which the unexplained delay of the Tribunal in furnishing reasons had significantly contributed, and the nearness of the holiday period. These considerations, together with the complexity of the tasks still awaiting completion by the respondents, made a prompt determination of so much of the dispute as could be determined very desirable. His Honour stated his conclusion that a decision by which the period would expire before 31 January 1989 would be "manifestly unreasonable" in the sense explained by Mason J. in Minister for Aboriginal Affairs v. Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 at 41-42. Later in these reasons, considerations will be discussed which weighed very heavily with the Tribunal when it limited the initial extension to 31 December 1988. In the light of the conclusion to be stated, that the Tribunal erred in law in taking those considerations into account against the respondents, his Honour's view seems unassailable. If, despite the weighty matters the Tribunal wrongly thought it could hold against the respondents, it yet granted an extension to 31 December 1988, there could be no doubt that, freed of the constraints imposed by those matters, it must have granted the respondents at least another month.

21. There being no error of principle in the primary judge's approach, the exercise of his discretion should not be interfered with, save upon the well-known grounds of attack upon a discretionary decision. None of these has been made out.

22. For these reasons the appeal should be dismissed.

23. In order to determine the cross-appeal, it is necessary to examine the reasons given for the first decision. The Tribunal referred to certain guidelines previously enunciated by it, two of which must be set out:

"(a) The grant of an extension of time, in
addition to the statutory six month
period of grace, is entirely at the
discretion of the Tribunal. This
discretion will not be exercised unless
the applicant can clearly show that the
necessity for an extension is supported
by the circumstances of the particular
case.
...
(e) Only one extension of time, when
justified, can be granted by the
Tribunal. The Tribunal has no power to
grant further extensions."

Guideline (a) appears to have been applied in this case. For the Tribunal referred to the respondents' contention that, in the circumstances already outlined, "it had not been possible to move more quickly to remedy the contraventions," and responded:

"The Tribunal was not convinced that they
(ie the respondents) had done all within
their power to resolve the contravention."

24. The assertion in the guideline that the discretion will not be exercised unless the applicant, in effect, can clearly show the necessity for an extension, and the conclusion that the Tribunal was not convinced the respondents had done all within their power, emphasize strongly a very restrictive view of the scope of the discretion involved. It is seen as concerned with demonstrated necessity. This suggests both a high onus upon an applicant for an extension, and also a criterion of considerable severity. Although it may readily be accepted that an applicant has the burden of placing before the Tribunal the circumstances claimed to justify an extension, there is nothing in the legislation to suggest some kind of onus of proof, and certainly not an onus more difficult to discharge than the ordinary civil onus. In their joint judgment in Swan Television and Radio Broadcasters Ltd v. Australian Broadcasting Tribunal (1985) 8 FCR 291 at 297 Sweeney, Toohey and Wilcox JJ. said:

"As was pointed out by a Full Court of this
Court in McDonald v. Director-General of
Social Security [1984] FCA 57; (1984) 1 FCR 354 at 357,
368-369, it will rarely be appropriate to
speak in terms of onus of proof in relation
to the making by an administrative tribunal
of a decision pursuant to a statutory
discretion."

25. But the greater vice in the guideline and the reasons is the proposition that the discretion is conditioned upon the showing of a necessity for an extension. The discretion is conferred by the Act in the widest terms. It can only be read down by reference to the subject matter, scope and purpose of the statute (see Minister for Aboriginal Affairs v. Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 at 40). Having regard to considerations already discussed in these reasons, an examination of s.92FAB suggests that the discretion to extend the period was conferred upon the Tribunal because it was impossible for Parliament to legislate precisely in respect of all the various situations that would arise. The task of balancing the public and private interests involved in each individual case was therefore left to the Tribunal. It would be quite inconsistent with this statutory scheme to permit the Tribunal to attempt itself the task which Parliament eschewed of laying down a rigid rule governing all cases. Section 92FAB cannot be read as excluding what is reasonable in the circumstances actually arising in a particular case, in favour of an insistence upon a criterion of necessity. Nor, where the result of the decision will be the crystallisation of a serious criminal offence (quite apart from the effect upon rights to property), can the Tribunal properly fail to have regard to the fairness, in all the circumstances, of that crystallisation occurring at a particular time. Its duty in this respect is emphasized by s.89W.

26. The Tribunal's reasons also disclaim any consideration of commercial advantage or, it would appear, disadvantage, since the Tribunal contemplates very rapid forced sale, in all cases, with equanimity. The reasons contain the following:

"The Tribunal does not see its role as aiding
persons to avoid compliance with the Act or
to secure commercial advantages."

After the statement that it was not convinced the respondents had done all within their power to resolve the contravention, it continued:

"Nor was it convinced that a further six
months was required to dispose of STW. Keen
vendors have sold broadcasting licences in
considerably less time. The Tribunal does
not have a responsibility to consider
commercial advantage to applicants who are in
contravention of the Act. When, for whatever
reasons (including its own commercial
decisions) sale of an asset is the only means
available to an applicant to remove a
contravention, there is no reasonable cause
for dilatoriness or delay."

27. Sight should not be lost of the fact that the statutory context contemplates cases involving public companies with many shareholders who might have had no say in the circumstances, and whose interests might be severely affected by the attitude espoused by the Tribunal. It is plainly impossible to justify the assertion that "there is (scilicet can be) no reasonable cause for ... delay." An abdication of responsibility to consider the commercial implications is equally impossible to justify. The broad discretion conferred upon the Tribunal by Parliament does involve a responsibility, and that responsibility includes the duty to consider the position as it affects all of the parties concerned.

28. It follows that Gummow J. rightly held the Tribunal's discretion had miscarried. The question raised by the cross-appeal is whether his Honour should have gone on to set aside the first decision. He did not do so because the orders made in respect of the second decision enabled the substantial question to be reconsidered, notwithstanding the first decision was left in existence. But, as has been shown, significant errors of law occurred in the making of the first decision. There may have been, or may be, a difference, when the Tribunal came, or may come, to consider further applications for extension, between the view of the matter suggested by an application for further extension related to a longer initial extension, and that suggested by an application under the circumstances traceable to the decision of 31 October 1988. This aspect of the matter, which was not considered by his Honour, is a sufficient reason to make the order sought in the cross-appeal. The decision, flawed as seriously as it is, should not be left to stand.

29. Accordingly, the appeal should be dismissed, and the cross-appeal allowed. The decision made by the Tribunal on 31 October 1988 should be set aside as from 1 January 1989. The appellant should pay the respondents' costs of the appeal and of the cross-appeal.