Attorney-General (N.S.W.) Ex Rel Franklins =tc.es Pty. Lta. v Liceils ety. Ltd. 2.3.W.L.R. 355 - con.

notice - whether sublic inconvenlence would factisos taken into account by Court.

Attorney-General (N.S.W.) Ex Rel Franklins =tc.es Pty. Lta. v Liceils ety. Ltd. 2.3.W.L.R. 355 - con. Brispvane city Council (1573) 133 C.L.F. 2d - con. : (1978) 1 N.S.W.L.R. 20 - con.

TVH ENTERPRIZES LIMITED vy. MIVHAEL JOHN DUFFY (First Respendent?.

AUSTBALTAN BROADCASTING TRIBUNAL .Second Responaent)

IU THE FELERAL COURT OF AUSTRALIA ) WESTERN AUSTRALIA DISTPicT REGISTRY No. WAG ¢3 of 1985 GENERAL DIVISIO BETWEEN : TVW ENTERPRISES LIMITED ) : _ Appellant ANE: MICHAEL JOHN DUFFY

AND: PERTH TELEVES TUN LIMITED, Weel Cua TELECASTERS LIMITED and WESTER SLEVISION LIMITED

DATE OF URDER : ll Octcber 1985 WHERE MADE : éydney

The appeal brought by leave from the orders made ov Toohey, J. on 12 July 1905 be dismissea.

The appellant pay the respondents costs sf the arreal. including anv reserved costs.

The appeal from the arders maue by Toche7, J. on iv september 1385 be dismissed.

The appeilant pay the respondents costs of tne lastmentioned appeal. including any reserved costs.

The cross-appeal from the orders made by Toohey. J. on 12 July 1985 be' dismissed.

The cross-appellant pav the costs of the cross-respondents of the cross-appeal, including any reserved costs.

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

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF

AUSTRALIA : Between: TVW ENTERPRISES LIMITED Appellant and MICHAEL JOHN DUFFY First Respondent and

THE COURT: Sweeney, Sheppard and Beaumont JJ. DATE : $ October 1985

The Australian Broadcasting Tribunal ("the Tribunal") has Since late 1984 been conducting an inquiry relating to the question of the grant of a third commercial television Licence

From time to time there have been applications to this Court seeking to challenge decisions made by the Tribunal in the course

of its inquiry and at least one previous appeal to a Full Court.

TVW Enterprises Limited ("TVW") 1s the holder of a commercial television licence in respect of that area and is appearing before the Tribunal to oppose the grant of an additional Licence. By an application dated 22 February 1985 it claimed a declaration that the notice published by the first respondent ("the Minister") on 7 May 1984 purportedly pursuant to sub-section 82(1) of the

Broadcasting and Television Act 1942 ("the Act") notifying

interested persons that they might lodge with the Tribunal, inter

alia, applications for the grant ot an additional licence, was and 1s invalid and void and that the inquiry commenced by the Tribunal

The respondents to the application were the Minister, the

'Tribunal and the then applicants tor the additional licence, Perth

Television Limited, West Coast Telecasters Limited and Western

TVW relied upon s.111C of the Act which provides that it shall be the responsibility of the Minister, amongst other things, to plan the development of television services in Australia and that in discharging that responsibility he shall consult with the representatives ot television stations in relation to matters affecting those stations. It contended that in considering whether to publish the notice and in publishing 1t the Minister was engaged in planning the development of television services in Australia and accordingly was obliged to consult with its representatives. It alleged that the Minister failed so to consult its representatives, by reason of which failure the notice

In his defence the Minister contended that s.111C did not give rise to any obligation to consult TVW before the giving of

the notice, but that if, contrary to that contention, there were

On 28 March 1985, upon a motion by the Minister, the learned trial judge, pursuant to 0.29 R.2 of the Federal Court Rules, made an order for the decision, before the trial of the application, of the questions whether such an obligation to consult rested on the Minister, and, assuming that there had been a failure so to

consult, whether it rendered the notice and the inquiry invalid

Where the decision ot a particular question may determine the outcome of an application and save the parties the expense of a

trial upon all the issues, the advantages of the use of the power under 0.29 R.2 are plain. Ina case such as the present, where there are alternative defences, it is convenient to decide the preliminary question upon an assumption made for the purposes of

that decision (see Yango Pastoral Company Pty. Limited and Others

v First Chicago Australia Limited and Others. (1978) 139 C.L.R.

The first question which his Honour posed and his answers to its parts were as follows: Was the Minister under any obligation to consult with TVW within the meaning of sub-section IIIC(2)(a) of the Act prior to publication of

(a) about or concerning the publication of the notice - Answer: No

(b) about or concerning the development of television services in Australia by the introduction of a further Perth commercial television licence - Answer: Yes

(c) about or concerning planning the development of broadcasting and television services in Australia - Answer: Yes

including that conducted by it, to a greater extent or more particularly than television stations in Australia generally - Answer: It is

TVW submitted that the answer to Question i(a) should have been "Yes". In their cross-appeal, the other applicants for the

licence contended that the answer to Question I1(b) should have

The answer to the first question turns upon a consideration

of the relationship between s.111C(1)(a) and (2) and s.82(1) of the Act.

The latter section, which 1s in Part 111B, dealing with licences, provides that before a licence (which includes a licence for a commercial television station) is granted, otherwise than by way of renewal, the Minister shall publish in the Government

Gazette and in a newspaper or newspapers circulating in the area

(a) setting out an outline of the specifications to

(1) lodge with the Tribunal, not later than a specified date (not being earlier than 21 days

lodge with the Tribunal, not later than 14 days after the date so specified, written submissions relating to the grant of the

Section 111C, which is in PART V - GENERAL of the Act,

to plan the development of broadcasting and television services in Australia;

to determine standards and practices in relation to the technical equipment used for broadcasting and television services and the Operation of such equipment;

to investigate and correct interference with the transmission and reception of broadcasting and television programs; and

to conduct examinations, or make or approve arrangements for the conduct of examinations,

competence ot persons to operate technical equipment used for broacasting and television

consult representatives of broadcasting stations and television stations in relation to matters affecting those stations; and

if there 18 a Broadcasting Council - consult with that Council in relation to matters generally atfecting broadcasting and

"But the question still remains - in publishing a notice under s.82(1) is the Minister engaged in planning the

The submission by the appellant that this was too narrow a view of its case was not, in my opinion, made out, as may be seen from the fact that the questions, which his Honour settled, referred to consultation prior to publication of the

(a) about or concerning the publication of the notice (to which his Honour answered "No")

(b) about or concerning the development of television services in Australia and

(c) about or concerning planning the development of broadcasting and television services in Australia

(to both of which his Honour answered "Yes".) His Honour evidently drew a distinction between the consideration which led up to the decision to publish the notice

The Act clearly distinguishes between the roles to be played by the Minister and the Tribunal in relation to the grant of a new television licence. Unless the Minister publishes a notice under s.82(1) the Tribunal may not conduct an inquiry into the granting of a licence. However, when the Tribunal conducts an inquiry it

becomes its responsibility to decide whether to grant a licence

Even a cursory acquaintance with the public record of the history of the development of television in Australia makes it plain that the decisions made from time to time 1n relation to the holding of anquiries to consider the grant of new television licences have been amongst the decisive events in the development

of television in this country. It is "in discharging his responsibilities" to plan the development of television services in Australia that the Minister shall consult representatives of television stations. It is not after he has discharged his responsibility to plan, when he has presumably arrived at a planning decision, that the Minister is to consult. A decision not to publish a notice which may result from the Minister's consideration will preclude the possibility, for the time being, of the grant ot a licence and clearly affect the development of television. In my opinion, the Minister in considering whether to publish a notice is discharging his responsibilities to plan the

In answering "No" to Question l(a), the question "about or concerning the publication of the notice" and "Yes" to Question

l(b) and (c), his Honour was clearly distinguishing between the

ministerial steps flowing from his decision to publish it and the

process of arriving at the decision. I agree with the answers

which his Honour gave to the various parts of Question l,.

The remaining answers challenged by the appellant were those

given to Questions 3, 4, 7 and 8, which read as follows:

"Question 3. If the answer to Question 1 is in any respect in the affirmative, 1n each case was the notice thereby invalid and of no

Question 4. If the answer toa Question 3 1s in any respect in the affirmative, is the inquiry invilid and void? - Answer: This question does not tall to be answered.

Question 7. If the answers to Questions 1 and 2 are in any respect in the affirmative and the

first respondent and the other ministers above mentioned failed or neglected to consult the applicant within the meaning of sub-section 111C(2)(a) of the Act as referred to in Questions 1 and 2 respectively, was the notice invalid and of no effect? - Answer: No.

Question 8. If the answer to Question 7 is in the affirmative, is the inquiry invalid and

void? - Answer: This question does not fall to be answered."

In its notice of appeal TVW seeks orders that atfirmative answers be given to each of these questions and that the respondents should pay TVW's costs, including all reserved costs,

The answers to Questions 3, 4, 7 and 8 turn upon the construction of the statute. The case was considered by his Honour on the assumption that there had been no consultation prior to the publication of the notice. The question therefore is whether absence of consultation leads to the result for which the appellant contends, that the applications for the grant of an

additional licence and the inquiry commenced by the Tribunal were

The obligation upon the Minister to consult is in the present case in respect of the publication of a notice which is certain to come to the attention of existing licensees under circumstances

where a substantial time will elapse before the commencement of an

inquiry, at which they will have a right to be heard.

Had the legislature intended to produce the result that in the absence of consultation, the notice and the inquiry were to he invalid, with all the consequences which would follow, it is reasonable to expect that it would have done so in plain terms. As Sheppard J. has pointed out, it is useful to compare the

sections with which we are concerned with ss.81(3), 82(1) and

If the construction for which the appellant contends were adopted, the validity of the notice and the inquiry would turn upon the question whether the Minister had consulted with representatives of television stations. There 1s a danger, in a hearing such as the present which has proceeded upon an assumption that there was no consultation, that the nature of the event said to be the test of validity may be overlooked. One would more readily conclude that the legislature intended a particular event to be a condition of validity, where that event was likely to be within the knowledge of those concerned with validity. One licensee who had been consulted, on any test of the meaning of that word, would not necessarily know whether other licensees had

not been consulted. Other persons would be unlikely to have any

li. It may not be easy ina particular case to decide whether what passed between the Minister and the representatives of a licensee amounted to consultation. The validity of a notice and an inquiry could thus be uncertain. This consideration gains weight when one considers the length and cost of such inquiries and the inconvenience to the public, the parties and interested

In my opinion, the Act on its proper construction does not make consultation under s.111C a condition precedent to the

Beaumont J. has set out the procedural steps whereby the learned trial judge granted leave for an amendment of the original application and then made a final order dismissing that application. An appeal from that order was brought before us

immediately, and leave was granted for the bringing of the

I agree with the answers given by the learned trial Judge to

I would dismiss both appeals with costs, including all

reserved costs. I would dismias the croagsz-appeal, with costs.

I certify that this and the preceding eleven (11) pages are a@ true copy of the Reasons for Judgment herein of The

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WESTERN AUSTRALIAN DISTRICT REGISTRY ive]a) oe} w fe) rh re ia] bs) Ww

SHEPPAPD T,: In this matter I have had the advantage cf reading the judgment to be delivered by Beaumont J. T am thus saved the necessity of setting out the facts of Ehe matter, the detail of rhe relevant leqislation and the course of the proceedinas leading to these appeals and to the cross appeal. One matter, in relation to the course of proceedings, which I wish to emphasize, however, is that the arqument before his Honour and before us proceeded on certain agreed hypothetical facts. One of these was that there had been no prior consultation by the Minister with existing licence holders (including the appellant). That is not

in fact the Minister's case. If the matter were to be fullv

heard, he would contend that there had in fact been consultation. But the assumption that there had been no consultation was made in order to enable the point of law over which the parties are in difference to be determined. Pursuant to Order 29, rule 2 of the cules his Honour ordered that the point he determined as a separate question on certain assumptions of face 'no consultation

being one of them) as to which the parties were aareed for the

purposes of the argument but not otherwise: cf. Yanago Pastoral

Company Efv Limited v. First Chirago Australia Limited (19781 139

The question at issue concerns the meaning and effect oat

paras. L11C(1L)far and 111C(2)(a) of the Act ain relation to

sub-sec. 82(1) thereof. Initially one needs to consider the meaning of the expression, "to plan the development of ... felevision services in Australia". Dees fhis include decisions

made, and steps Leading to those decisions, that thece be a third commercial television station ina particular centre. in this case Perth? In the submission of the third respondents, who are the competing applicants for the new licence. 1t dees not. In their submission what 1s beinag referred to is planning in a wider and less well defined sense relating to qeneral matters. many of them technical. concerning the way in which television services in Australia are made available. Eyamples would. in their submission. be provided by the consideration which needs ta be given and the decisions which nesd fo be made as a result of the

launching of the new satellite, Aussat. the question of whether

very hich or ultra high frequencies should be used for transmission. the separation of frequencies in use bv different channels, the desirable access that Australian citizens sheuld have to commercial television, whether in country or metropolitan areas, and aeneral programming matters, including standards and content of proqrammes, Much was made of the separation effecred by the 1976 and 1977 amending Acts of the functions of the former Australian Broadcasting Control Boacd so that strictly administrative and political functions were vested in the Minister and the quasi-judicial functions of granting or renewind

In the submission of the third respondents. the decision so

television licence ina particular centre was not planning the development of television services in Australia. Rather 1 was a decision within very defined limits that, all thinas beina equal,

there should be a third licence. But that was verv much a matter

for the Tribunal especially bearing in mind its power not to avant a licence because of the need for the commercial viability of existing television stations which are providina satisfactory television reception: see sub-para. 83(6)(c)(1i1). Thus, what the Minister was really doing was invoking the Tribunal's

jurisdiction to determine whether there should be a third Licence

In my opinion the third respondents have approached the

problem too narrowlv. An examination of the historv of the development of commercial television in Australia shows this to be so. Initially, decisions had to be made as to where commercial stations were to be established. As micht have been expected, decisions were made to'establish them first of all in each of the capital cities. Originally there were to be two licences in Svdney and Melbourne and one each in the other capitals, omittina Canberra and Darwin. Then there had to he planning of country television services. Decisions had toa be made as to the country centres in which stations were to be established and the numbers of those stations. Those decisions no doubt involved many technical considerations as well as considerations both of what was desirable and what was achievable from a practical point of view. Eventually decisions were made to increase the number of licences in the major centres. Each time one of these decisions was made, so it seems to me, the decision must have resulted from a planning of television services in Australia overall. If ane considers this case in 1solation, it can perhaps be reqarded as concerned only with what should be done in Perth. But that is part only of the overall spectrum. Thus a decision to establish a third television station ina particular centre and the steps leading to that

decision are part of the planning of television services in

I denot think that the fact that the Tribunal may, on

grounds of the need for the commercial viability of existing

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stations, refuse to arant a licence at all, affects this view. The provision in that behalf 1s found ina sub-section which commences with the words, "The Tribunal shall not refuse ta arant a licence toa person unless it has held an inquiry into the arant of the licence and ... it appears to the Tribunal, having vegard onlv to the following matters or circumstances, that 1t 1s advisable in the public interest to refuse to grant the licence

eee One of the matters or circumstances is the need for the

But the provision needs to be read in context. In order to understand its place in the section, the whole section needs to be considered. Subsection 82(1) provides that, before a licence is qranted, the Minister shall publish, in the Gazette and ina newspaper circulating in the area concerned. a notice settinag sut an outline of the specifications to which if is proposed the licence 1s to be subject. The Tribunal has no power to emback an an inquiry nor to qaqrant a licence until such a notice is published. From the publication of it. it mav be inferred that 1t 1s prima facie the view of the Minister that a licence should be granted. Neither the legislation nor the notice which he publishes should be read as if the principal question which will concern the Tribunal is whether or not any licence should be

It was submitted by counsel for the appellant that the

Minister's obliagation to consult with existing licensees extended

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to consulting them about or concerning the publication of a notice pursuant tos, 82 of the Act. In mv opinion chat submission 1s unsound. Oncé a decision 1s made that, all thinas being equal, there should be an additional licence ina

particular area, the planning process is at an end. The acts which invoke the Tribunal's jurisdiction are ministerial acts. No longer 1s any part of the planning process involved.

In fairness to counsel for the appellant, he did not put this submission to the forefront of his arqument. but he did submit Ehat there were indications in the tudament under appeal that the learned primary Judge had tended to restrict himself ko this question. That was because of a sentence in the jitidament which says, "But the question still remains - in publishing a notice under: sub-sec, 82(1), is the Minister engaged in planning the development of television services within s. 111C?" That sentence precedes much of his Honour's discussion of the problem. But it 1s clear from that discussion and from the answers given

to the questions formulated in paragraph 1 of the questions posed

for his Honour's decision that his Honour did not restrict himself to that matter. I would therefore reiect the submission made by counsel for the appellant that his Honour's jiudqment in

some wav disclosed érror on this ground. It follows that the Minister was obliged. pursuant to para.

111C(2)(a), to consult representatives of existina televisian

stations. including the appellant. about the proposal to call for

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. 7. applications for a third commercial television licence in the Perth area. But the paragraph must be given a practical and sensible construction. It ought not fo be read as requiring consultation at every step of the planning stage. The obligation will be discharged if the Minister. ina case such as this. whether personally or through departmental officers, informs existing licence holders of his proposal, seeks their views about them and takes into account any views ar suagestions thev may put forward. In some cases his obligation to consult will extend to further consultation concerning these views and suaqestions. It is not possible to indicate more precise quidelines. Each case will depend on its own facts. What must be understood is that

the consultation needs to be real; it musk not be a merely formal

The next question is when, 1n the circumstances of a case such as this, must the consultation occur? There is nothing in either s. 82 or s. LI1C which expressly requires it to take place before the publication of a notice pursuant to s. 82. In the submission of counsel for the appellant. however, the consultation must take place before the notice is published because the publication of it triqgers a process over which the Minister has no control and which will in all probability lead to Ehe grant of an additional licence. In those circumstances, so the submission runs, it follows that consultation must = occur prior to the publication of the notice; otherwise 1t would not

I have reached the conclusion that that submission is correct. Indeed. it was not the subject of any real challenge by counsel for any of the respondents. Their principal contention was that. assuming the Minister to have had an obligation to consult the existing licensees before publication of the notice and assuming no such consultation, that being the hypothesis upon which the matter was araued, there was not to be found in the Act anv provision which made it unlawful to publish a notice under s. 82 of the Act. Such breach of obligation as there may have been on the part of the Minister had no leaal consequence so far as concerned the validity of the notice and of the tunmiirv held consequent upon its publication. I reaard that as the central

question arising for decision in the appeal, It 1s the question

During the arqument there was much discussion about whether the provisions of s. 1L11C were mandatorv or directorv, and, 1f directorv, whether they needed to be substantially complied with before one could say that no invalidity would result in the

absence of consultation. A number of authorities were referred

to. These included Montreal Street Railway Company v. Normandin

Ci9171 A.C. 170, Scurry v. Brisbane Citv Council (1973) 133 C.L.R.

242, Victoria v. The Commonwealth (1975) 134 C.L.R. 81, particularly per Stephen J. at p. 179. Attornev-General (N.S.W.)

ex rel. Franklins Stores Ptv Limited wv. Lizelle Ptv Limited

C19771 2N.S.W.L.R. 955. particularly per Reynolds J.A. at p.

969, and Tasker v. Fullwood C1978] 1 N.S.W.L.P. 20. especially at

pp. 23 - 24. In passing it may be noted that the decision of the Court of Appeal in Lizelle was reversed by the High Court, but not in a way which affected what had been said on the question at issue here; see Editor's note (£19771 2 N.S.W.L.R. at p. 955,

These and other authorities are reviewed in Pearce on Statutory

Interpretation, 2nd Ed., pp. 169 - 176. After discussing the

decision of the New South Wales Court of Appeal in Tasker v.

Fullwood (supra). the author concluded his treatment of the

"The foregoing (particularly the oaidament in Tasker ov. Fullwood) seems to have taken the question full circle. The only quiding principle Will be the statute and from it the court will have to alean one of three intentions in regard to the desiqnated procedure: (a) that strict compliance is necessary; ({(b) that substantial compliance is necessary together with the deqree of 'substantialityv';: or (c) that compliance is not a precondition to the action taken. Breach of (a) or (b) will result in invalidity but no adverse consequences will flow if (c) 1s found to apply (unless some separately desiaqnated penaltv is included in the leqislation)."

so the matter is one of statutory unterpretation. The appellant will be entitled to succeed if it is decided that compliance with s. 111C as a precondition to the notice provided for in s. 82 needs to be strict or substantial. If no compliance at all is required. then the appeal should be dismissed. Since the matter is one of statutory interpretation. it is important to have regard to the terms of the various sections which are in

The first matter to be observed is that there is nothing in either s. 82 or s. 111C which expressly requires consultation to take place before a notice is published. That is not conclusive of the outcome. but in my opinion it provides a strong pointer to the statute not disclosing an intention to invalidate a notice

published pursuant to s. 82 in a case where consultation has not

There are a number of additional considerations. Section 82 1s found in Part IIIB of the Act dealing with licences. The Part consists of ss. 80 ~ 89C inclusive and contains comprehensive provisions dealing with the arant and renewal oft bath

broadcasting and television licences. Sich Licences are aranted

and renewed by the Tribunal, not bv the Minister. Section 111C¢ is not found in Part IIIB but in Part V which is headed "General", It 1s necessary [En make some reference to the detarl of the provisions of Part ITIB and also to some of the provisions

Part IIIB opens with s. 80 which contains a number of definitions. Section 81 provides for the grant and renewal of licences by the Tribunal. Sub-section s81(1) provides that, subject to the Act, the Tribunal may grant or renew a Licence upon such conditions, and in accordance with such form. as the Tribunal determines. Sub-section 81(3) commences with the words. "A licence for a commercial broadcastina station or for a

commercial television station shall not be aranted except ...".

Le The substance of the section is not important: rather it is the lanaquage which is used in the opening words of the provision. In passing, however, jt mav be noted that the provision is one which forbids the granting of a licence except toa company formed within the limits of the Commonwealth or a Territory and having a share capital. Similar lanquage is used in the opening words of sub-sec. 81(4) dealing with public broadcasting licences and public television licences. These "shall not be aranted except

as earlier mentioned, similar lanquage 1s used in the opening words of sub-sec. 82(1). They are. "Before a Licence is dranted «+. the Minister shall publish ...". A further example of lanquaqge of this kind is to be found in the alreadv quoted opening words of sub-sec. 83(6) which are. "The Tribunal shall not refuse to grant a licence to a person unless ...", The latter provision serves a different purpase from the earlier ones but each of the provisions to which I have referred is expressed in emphatic language either forbidding something to be done unless certain conditions are fulfilled or compelling it to he done unless certain findinas are made. The lanaquacge is that of

mandatory provisions which, prima facie, at least. would suaqgest

There is no express reference ta s. I11C in sib-sec. A2(1). But there is an inferential reference to 1t. The sub-section in

para. (a) requires the notice to set out an outline of "the

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specifications to which it is proposed the licence is to be

subject". The expression "specification" is defined in sec. 80

"'specification', in relation to a licence. means a specification of any of the following matters: (a) the nature of the service provided in

(c) the purpose of the* service provided in pursuance of the Licence;

(d) ain the case of a public broadcasting licence er public television licence - the special purpose for which the licence 15 aranted;:

(e) a matter referred to in section 93, 94, 95 or 96;

(f) a matter that. by virtue of section 1l1IC, falls within the responsibility of the Minister."

The provisions of ss. 93, 94,95 and 96 are to be found in Part IV of the Act which 1s entitled. "The Commercial

Broadcasting Service and the Commercial Television Service". The sections are in Davision 4 of the Part which 1s entitled "Technical Conditions". Thev deal respectively with the desian. installation. maintenance and operation of technical equipment, the situation of commercial television stations, the operating power of commercial broadcasting stations and commercial television stations and the frequencies of commercial broadcasting stations and television stations. All these matters

are made subject to the consent. opinion, determination or

satisfaction of the Minister. Thus it is provided that a commercial broadcasting station Or a commercial television

station shall be situated at such place and that the operating

power of such a station shall be such as the Minister determines

Particularly because of the reference to ss. 93. 94, 95 and

96 in para. (e) of the definition of "specification" in sub-sec. 80(1), I find it difficult to understand the siranificance of the reference to s. 111C of the Act in para. (f) of the definition. This difficultv extends to linderstandina what the draftsman of the legislation had in mind when he required a notice published pursuant to sub-sec. 82(1) to set out an outline of the specifications to which it was proposed the Licence shovwid be subject. The matter was discussed with counsel during the

argument, but no satisfactory answer was suadested.

It was said that the matters to which reference was beind made were not matters falling within para. (a), but rather within paras. (b) and (c) of the sub-section. These provide that it is to be the responsibility of the Minister to determine standards and practices in relation to the technical equipment used for broadcasting and television services and the operation of such equipment and to investigate and correct interference with the

transmission and reception of broadcasting and television prodrammes. Both these matters, however, are encompassed hy ss. 93 and 96 which are made subject to the consent or approval of the Minister in the case of equipment and his satisfaction in relation to frequencies. Tt seems hardly necessary on account of

technical considerations to have included a reference to s. 111C

in the definition of "specification" in the light of the fact that technical matters were already provided For in para. (e) thereof. Mv puzzlement about the sianificance of para. (f) of the definition of "specification" in sub-sec. 90(1) therefore remains. But the matter is not of importance in the resolution of the present problem unless the reference to s. 11iC in Part IIIB is capable itself of suggesting dependence of the steps to be taken pursuant to s. B2 on prior compliance with the provisions of s. 111C. In my view, whatever the sianificance of the reference tos. 111C ins. 80. and thus s. 82. may be, it does not suggest any such dependence. It thus has no bearing on the outcome of the case. Counsel for the appellant did not

The analvsis that I have undertaken of the provisions of Part

IIIB of the Act indicates that where the legislature wishes to be

specific about compliance with conditions 16 uses clear Lanquage to indicate its intention. That being the case. it must be said that it would be rather stranage, 1f the legislature had intended that other conditions needed to be complied with before a valid notice could be published under sub-sec. 82(1), that it did not

Moreover, the public inconvenience of such a conclusion is manifest. Only the Minister and the existing licensees would know whether consultation pursuant to sub-sec. 111C(1) had been

undertaken. Potential applicants for a licence would not have

direct knowledge and. if they were to endeavour to find out whether there had been consultation, might receive conflictina replies as to whether there had been consultation within the meaning of the section. They might therefore need to undertake the preparation of an application, including the taking of advice on various matters, some technical, some financial and some legal, all involving substantial time and expenditure, without being able to be assured that 'the notice and the inquiry to which it would give rise would be valid. It seems hardly likely that the legislature, particularly bearing in mind the lanquage which

it has used. would have intended such a consequence.

The inconvenience does not stop at the door of potential applicants. The Minister. having decided to invoke the procedure that is likely to lead to the grant of a licence. would usuallv have aqgiven the matter some detailed consideration and would probably, although not necessarilv, have a prima facie view that a licence should he granted provided a suitable applicant was forthcoming. These decisions I have already concluded are part of the planning of television services or broadcasting services in Australia. They are decisions made in the public interest, that 1s to say in the interests of the communitv that the licence is intended to serve. The decisions would be likely to be publicly announced and would create expectations in the minds of

The object of the Act 1s to make available broadcasting and

television services of an appropriate standard and quality to as Many people in Australia as is consistent with the operation of the various stations being viable. The principal object of the

Act is thus to benefit members of the listening or viewing

public. It 1s not to benefit potential applicants for commercial or other licences, although, because of the financial rewards that are available, this mav be one of its consequences. But this 1s only because, in the view of Parliament. it is desirable that there be a commercial television service and a commercial broadcasting service, and that companies providing those services must operate profitably to remain viable undertakings. To tnvoke the inquirv process and thus bring about a situation in which it is likely that a licence will be granted is thus to do an act which in line with the Minister's policy, 1s designed to benefit large sections of the various communities in which licence

applications are called for. To hold that a notice. and thus an

inquiry, were invalidated by a failure to consult as to which no

member of the public, let alone any potential applicant, could f

Rave any direct knowledge, would work the manifest public

inconvenience which is referred to in the Normandin case (supra).

This is not a case where there can be anv question of substantial compliance as opposed to strict compliance. What s. L11C requires is consultation. No doubt there are dearees of consultation. Sometimes consultation may be detailed and ongoing. At others, perhaps because of the attitude of parties,

it may be less extensive because, although the consultation 1s no

less real than it is in cases falling within the first category, it becomes apparent at an early stage that the consultation is serving no purpose. So this 1s a case, like the Normandin case, where there must either be strict compliance or no compliance at

all. There is no room for the middle ground of substantial compliance.

The factors I have mentioned are, I think, those which should quide one in determining what the leqislature intended. In my opinion they point clearly to the conclusion that failure to consult pursuant to s, 111C before a notice is published does nor invalidate the notice and consequently does not invalidate an

It follows that Iam in agreement with Toohev J. in the answers to be given to the questions which were posed. The judgment for the respondents which had the effect of dismissina the proceedings was correctly entered. IT would dismiss the appeal from that judgment with costs. I would also dismiss with costs the appeal brought, by leave, and the cross appeal, from the interlocutory orders answering the questions which were

\ certify that this and the Ib preceding pages are a true copy of the reasons for judgment herein of The Honourable

WESTERN AUSTRALIA DIETRICT REGISTRY No. TAG 69 of 1585 GENERAL DIVISTIN ON APPEAL FROM A SINGLE JUDGE GF THE FEDERAL COURT OF AUSTRALIA BETUEEN : TYN ENTEFFRISES LIMITED , Appellant AND: MICHAEL JUHi DUFFY First Rhesvondent AD: AUSTRALIAN BROADCASTING TRIBUIA vecond Respondent AND: PERTH TELEVISION LIMITED, WEST CoAST

functions of which include the grant of licences under the Act (see s.16(1)). The tnird respondents are companies in whose names applications were lodged with the Tribunal in about August 1984 seeking the grant of a further commercial

television licence for the Perth Metropolitan Television

On 7 May 1984, the Minister published a notice pursuant to s$.82 of the Act inviting applications for, or written submissions relating to, the grant of a licence for a commercial television station within the Perth Metropolitan Television Area. The validity of this notice

Section 82 15 located in Part ITIB of the Act which deals with licences. By s.81(1), subject to the Act, the Tribunal may grant a licence upon such conditions, and in accordance with such form, as the Tribunal determines. By s.81(2), an determining the conditions upon which oar the form 1n accordance with which a licence is to be granted, the Tribunal is to have due regard to the need for the commercial viability of the television stations in the area

to be served in pursuance of the licence. By s.82(1),

before a licence is granted, the Minister shall publish a

notice (a) setting out an outline of the "specifications" to which it is proposed the -licence 1s to be subject and (b)

notifying interested persons that, within nominated times,

they may lodge with the Tribunal applications for the grant of a licence or lodge written submissions relating to the grant of the licence. Provision 1s made for the Tribunal to make available for public inspection particulars of the applicants for the licence (s.82(2)) and for the Tribunal to

serve on the applicants copies of all submissions lodged

(s.82(3)). These steps are to be taken within specified times and within a further -period of 21 days an applicant

may lodge with the Tribunal his reply to anv submission

As has already been noted, a notice under s.82(1) must, inter alia, set out an outline of the "specifications" to which it is proposed the licence be subject (s.82(1)(a)). "Specification" in relation to a licence is defined in 5.80(1) to mean a specification of any of the following Matters: (a) the nature of the service: (b) the area served: (c) the purpose of the service; (d) in the case of a public television licence, the special purpose for which the licence is granted; (e) a matter referred to in ss.93, 94, 95 or-96 (which are provisions dealing with technical conditions such as the design of technical equipment and the

operating power of a television station); (f) a matter,

that "by virtue of s.111C, falls within the responsibility

Section 111C, which is central to the appellant's argument in support of its challenge to the validity of the notice given under s.82(1), 1s found in Part V of the Act. That Part 1s headed "General". The provision, which has the marginal note "Additional Functions of Minister", 1s in

"111C.¢(1) It shall be the responsibility of the Minister: -

(a) to plan the development of broadcasting and television services

'b) to determine standards and practices in relation to the technical equipment used for broadcasting and

television services and the operation of such equipment;

(c) to investigate and correct interference with the transmission and reception of broadcasting and television programs; and

(d) to conduct examinations, or make or approve arrangements for the conduct of examinations. and to issue certificates, as to the competence of persons to operate technical

' equipment used for broadcasting and television services.

(2) In discharging his responsibilities under paragraph (1l)(a), the Minister

(a) consult representatives of broadcasting stations and television stations in relation to matters

(b) af there 1s a Broadcasting Council - consult with that Council in relation

to matters generally affecting broadcasting and television in

Shortly stated, the appellant's case 1s that the Minister's decision to publish the notice under s.82(1) unviting applications for a licence involved planning the development of television services in Australia for the purposes of s.111C(l)(a); that, in contravention of the provisions of s.111C(2), the Minister failed to consult with representatives.of television stations on the matter; and that as a result the Minister's notice under s.82(1) and all subsequent proceedings were invalid. The respondents deny any fallure by the Minister to consult: they argue further that if, contrary to their assertions, there was sucha

failure, no invalidity of any of the proceedings occurred. The respondents also raise a number of discretionary

Before going to the substantial questions which arise on the appeal, it 1s necessary to describe further the scheme of the legislation and to outline the history of the

Consideration by the Tribunal of applications for licences is dealt with by s.83 which is in Part IIIB of the Act. By s.83(1) the Tribunal shall, subject to exceptions not presently material, hold an inquiry into the grant of the licence. The inquiry 1s to be held as soon as practicable after the expiration of the period referred to

aun s.82(4). An applicant for a licence must undertake that

he will, if the licence is granted to him, (a) comply with the conditions of the licence; (b) in the case, inter alia, of a commercial television station, provide an adequate and comprehensive service in pursuance of the licence; and (c) encourage, inter alia, the provision of programs wholly or substantially produced in Australia (s.83(5)). By s.83(6), the Tribunal shail not refuse to grant a licence to a person unless it has held an inquiry into the grant of a licence and (a) the person has failed to give an undertaking in accordance with s.83(5); (b) the Tribunal 15 satisfied that the grant of the licence would be contrary to a provision of the Act; (tc) it appears to the Tribunal, having regard only to certain matters (outlined below), that it 1s advisable in the public interest to refuse to grant the licence to the person; (dad) 1t appears to the Tribunal that a licence of the kind contemplated by the matters set out, inter alia, in a notice under s.82(1)(a) should not be granted; and (e) the circumstances are such that, if it granted the licence to the person, the Tribunal would have reasonable grounds for believing that a person would be contravening, inter alia, 5.92, a provision imposing a limitation upon interests

Tribunal is to have regard for the purposes of s.83(6)(c)

(A) is a fit and proper person to hold the licence;

(B) has the financial, technical and management capabilities necessarv effectively to operate the relevant broadcasting station or television station, as the case may be; and

(C) is otherwise _ capable of complying with the- conditions of the licence;

(A) the licence is a commercial licence (other than a licence for a metropolitan commercial broadcasting station as defined by sub-section 90(1) or a licence referred to in paragraph 92(1)(c) or a supplementary licence; and

(B) ain the opinion of the Tribunal, in the area to be served in pursuance of the licence, satisfactory reception is being obtained of programs from one or more broadcasting or television stations operated by virtue of a licence or licences of a kind to which sub-sub-paragraph (A) applies,

the need to avoid undue concentration of influence. whether direct or indirect, on the person and on the company or companies holding the other licence or licences;

(iii) where, in the opinion of the Tribunal, in the area to be served in pursuance of the licence, satisfactory reception 1s being obtained of programs from one or more broadcasting or television stations - the need for the commercial viability of that station or those stations;"

licence. each of whom 1s a person to whom, but for this

wee be tin hee en ee te et hte A ee ee ee ee Se ee +

provision, the Tribunal would be required to grant the

licence, the Tribunal is to grant the licence to the most

After the provisions of s.83 have been complied with in relation to a licence, and before the grant of a licence, the Minister is to determine the specifications applicable to the licence which, in the case of a matter referred to in para.ia), (b), (c) or itd) of the definition of "specification" in s.80(1), are to be consistent with or substantially consistent with the matters set out in, inter alia, a notice under s.82(1)(a) and is to notify the Tribunal accordingly (s.84(1)). Upon the grant of a licence, the conditions of the licence are (a) the

specifications so determined by the Minister; and (b) such

conditions. not relating to matters referred to in the

definition of "specification" in s.80(1), as are imposed bv

In December 1984, the Tribunal commenced to hold an inquiry pursuant to s.83(1). Shortly thereafter, by its application and statement of claim in these proceedings, the appellant, as applicant, applied for declarations that the notice given under s.82(1) was invalid and that the inquiry held pursuant to the notice was also invalid. Further or other relief, not then specified, was also sought. In 1ts

statement of claim, the appellant recited the history of the

matter and alleged a contravention of s$.111C(2) in the manner already indicated. It asserted that s.111C(2) wasa mandatory provision and that the consequence of failure to comply with its requirements was the invalidation of the notice under $.82(1) and the subsequent proceedings. (Although it was by no means obvious, we were informed during argument that the proceedings were purportedly brought under s.39B of the-Judiciary Act, 1903, a matter which raises 1ts own problems to which reference will later

be made. It will suffice for present purposes to note that no specific relief of the kind described in $.39BR of the Judiciary Act was then sought; in particular, no claim was made for any injunctive relief. No attempt has been made by the appellant to seek any interim injunction restraining the Tribunal from continuing to proceed with its inquiry. The Tribunal commenced its formal hearing in February 1985 and that hearing 1s still proceeding). The respondents filed defences resisting the claims for relief on the grounds,

On 28 March 1985, on a motion by the Minister, Toohey, J. made an order for the statement of a case and questions for decision pursuant to 0.29 r.2. It was ordered that "The facts as agreed between the (parties) for the purposes only of and as the basis for the questions referred are"; there follows a statement of the history of the matter

substantially in the terms already recited. However,

specific reference should be made to para. (vi1) which deals with the effect of the introduction of a further commercial television licence for the Perth Metropolitan Television Area in these terms :-

commercial television licence for the Perth metropolitan area and environs:

television services in Australia;...." (emphasis added)

reserved and the answers given by Toohey, J. were as

1. Was the first respondent under any obligation to consult with the applicant within the meaning of s.111C(2)(a) of the Act prior to publication of the notice:

(a) about or concerning the publication of the notice;

(b) about or concerning the development of television

services in Australia by the introduction of a further commercial television station licence to serve an area within the Perth Metropolitan Television Area;

(c) about or concerning planning the development of broadcasting and television services in Australia;

(d) about or concerning any matter affecting the applicant. or a specified class of television station including the

applicant, to a greater extent or more particularly than

television stations in Australia generally. Answer (a) No; {b) Yes; {c) Yes:

2. Were such other ministers referred to in para.3 of section A (a reference to the Minister's predecessors in office) under any obligation to consult with the applicant within the meaning of 8.111C(2)(a) of the Act in relation to any of the matters mentioned in para.1 hereof in discharqing their responsibilities under s.111C(1)(a) of the Act?

3. If the answer to Question 1 is in any respect in the affirmative, in each case was the notice thereby invalid and of no effect?

respect inthe affirmative, 1s the inquiry referred to in para.8 above

5.. If the answer to Questions 1 and 2 are in any respect in the affirmative and the first respondent failed or neglected to consult the applicant in relation to any of the matters

mentioned in para.l hereof but the other ministers abovementioned did

meaning of s.111C12)(a) of the Act as referred to in Question 2 above, in

each case was. the notice invalid and of no effect?

6. If the answer to Question 5 1s in the affirmative, is the inquiry invalid and void?

answered. Question 7. If the answers to Questions 1 and 2

are in any respect in the affirmative and the first respondent and the other ministers abovementioned failed oer neglected to consult the applicant within the meaning of s.111C(2)(a) of the Act as referred to in Questions 1 and 2 respectively, was the notice

8. If the answer to Question 7 15 in the affirmative, is the inquiry invalid and void?

Toohey, J. to stated questions lia), 3, 4, 7 and 8, contending that the answers to each of those questions should have been in the atfirmative. The second and third respondents cross-appeal from the answer given by Toohey, J. to question lib), contending that the answer should have

In the course of argument on the appeal, the question was raised whether the orders made by Toohey. J. by way of answer to the questions reserved were not final but interlocutory only, thus requiring leave to appeal pursuant to s.24(1A) of the Federal Court of Australia Act, 1976; and whether this Court has jurisdiction to deal with the matter. It was conceded that no injunction was claimed and

that merely declaratory relief was sought (see Lane, The

Australian Federal System, 2nd Ed. at p.1020; cf. Judiciary

Act, $.39B). No claim was made for relief under the Administrative Decisions (Judicial Review) Act, 1977.

Further, the second and third named third respondents

contended that because certain fundamental facts assumed by his Honour were merely hypothetical at that stage, given

their alternative contention, yet to be determined, that the

consultation required by s.111C(2) in this case had in fact

and in law taken place, the decision of Toohey, J. was no more than an advisory opinion. They submitted that the questions answered by the learned Judge were beyond federal judicial power and were not a "judgment, decree or order" of the Court constituted by a single Judge for the purposes cf

s.24(1) of the Federal Court of Australia Act tcf. The

Minister for Works for the Government of Western Australia

v. Civil and Civic Ptv. Limited (1967) 116 C.L.R. 273).

hearing of the appeal so that certain further applications could be made to Toohev. J., the learned Judge then made a

number of crders. In the first place. on 20 September 198°, his Honour granted the appellant leave to amend its application and statement of claim so as to seek additional relief ain the form of permanent injunctions against the Tribunal from proceeding further with its inquiry and against the Minister from taking steps consequent upon any decision of the Tribunal. Thus, any doubts as to the jurisdiction of the Court under s.39B of the Judiciarv Act were removed.

Next, the learned Judge ordered that the proceedings instituted by the appellant be dismissed pursuant to 0.29 r.4 for the reasons he gave in answering the questions reserved. The appellant then immediately

appealed from this order as a final order disposing of the

proceedings. In support of this appeal, the appellant adopted the contentions advanced by it in the appeal against the learned Judge's earlier order answering the questions reserved. In the second appeal, no doubt exists as to the jurisdiction of this Court to entertain the matter since it is an an appeal from a judgment dismissing a claim. even if 1t be assumed. for the purpose of argument. that the

consultation required by 3.1110(2) did not cccur (cf. Yango

Pastoral Company Pty. Limited v. First Chicadqo Australia Limited (1978) 139 C.L.R. 410 at pp.412, 419-20).

Finally, assuming that onlv an interlocutory order was involved, we granted the appellant leave to appeal from the orders of the learned Judge made on 12 July 1985

answering the questions reserved. There were thus two appeals before the Court, each appeal raising the same point of substance, namely, the construction and application in the circumstances of the case of s.111C(1)(a) and (2) of the

The points of law for determination in the proceedings were formulated by the appellant an its

(a) the issue of a notice pursuant to section 82(1) of the Act necessarily requires the Minister to discharge his responsibility pursuant to section 111C(1)(a) of the Act;

dependent upon the Minister validly discharging his responsibility pursuant to sections 111C(1) (a) and L11(2)(ar."

In support of the first of these propositions, the appellant argues that the Minister's decision to publish the statutory notice and thus to initiate the statutory inquiry for the third Perth commercial television licence should be characterised as something done to "plan the development of broadcasting and television services in Australia" within

In my opinion, the verb "to plan" where used in s.111C(1)(a) was intended to have its ordinary meaning, chat 1s to say, "to arrange a scheme for" and the term "development" where used in s.111C(1)(a) was intended to have its dictionary meaning of "evolution, qrowth or expansion" (see the Macquarie Dictionary). It follows, I thank, that the action taken by the Minister 1n 1ssuing the notice and the reasoning process which led to the decision to initiate the inquiry are not necessarily of the character sought to be attributed to it by the appellant for, in

truth, in terms cf its character, the conduct of the

Minister in this regard must be viewed as equivocal. In the

ultimate analysis, the question 1s one of fact and. subject to one matter to which reference will be made later, there is no finding of fact made by the learned Judge, or relevant concession made by the respondents, that the Minister's decision to give the statutory notice was actually something done by him in the course of his planning the development of broadcasting and television services in Australia. As a matter of fact. that conduct may well have had that character but it may equally as well have had a different character. In short, the Minister''s action in deciding to Give the statutory notice may have been something done otherwise than by way of the preparation of a scheme for the evolution, growth or expansion of television services in

There is a statement, 1t 1s true, in para.l.A(vi1) of the agreed facts that "the introduction of a further commercial television licence...constitutes development of television services in Australia." But this cannot be determinative of the question. For one thing, any such agreement between the parties could not be conclusive so far as any question of law is involved 1n the construction of s.111C(1)(a). Moreover, the aqreement in sub-para.(vii) does not involve any concession that what was done by the Minister constituted the planning of the development of

television services in Australia. Rather, the agreement of

the parties reflected in sub-para.(vi1i) seems to have been

arrived at upon the assumed basis that the grant of an additional licence in Perth amounts to a development of television services in the sense that the provision of a further facility is growth in the number of services available. On that assumption, the agreement, so far as 1t

goes, correctly states the position. But the question of

In my view, s.111C(1)(a) imposes upon the Minister the specific responsibility of formulating policy in the area of the evolution, growth or expansion of television services 1n Australia. In this role, which 1s accurately described in the marginal note as an "additional" function of his, the Minister 1s concerned with the matters of principle Which arise for consideration in that field. The amplementation of the policy, whether by resort to the machinery of a notice under s.82(1) or otherwise. 15 a different matter. No doubt the Act imposes obligations and confers functions upon the Minister in the latter respect either qenerally or incidentally or, as in the case of s.82(1) itself. in a specific instance, But the source of the statutory function or duty to implement policy formulated pursuant to s.111C(1)(a) is not s.111C(1l)(a). As has been said. that provision is concerned with matters of policy only. The duty or power to implement that policy is to be found elsewhere and, for present purposes, the source

of that duty or power is to be found in s.82({1). The

relevant distinction is indicated in the structure of the legislation itself. Section 111C(1)(a) 1s located in the "General" part of the Act, whereas s.82(1) 1s in the part

In short, in my opinion, s.111C(1)(a) as a free-standing provision which imposes a statutory obligation upon the Minister which 1s-collateral to, yet independent of, other specific statutory functions such as his power to issue a notice pursuant to s5.82(1). The latter power mav, in particular instance, be exercised in the implementation of a policy formulated pursuant to the functions conferred by s.111C(1)(a). Equally, the decision to issue sucha notice may not be so based. A notice may be given under $.82(1) 1n circumstances which have no connection with the formulation of policy in the areas specified by s.111C(1l)(a) or with the implementation of that policy. That 15 to say, in my view, there 1s no necessary connection or nexus between the planning contemplated bv s.111C(1l)(a) and the

The appellant sought to establish the existence of a relevant nexus between s.111C(1)(a) and 5.82(1) by pointing to the definition of "specification" in s,.80(1) as picked up by 5.82(1), to the extent that by s.82(1)(a) the notice published by the Minister 15s to set out "an outline

of the specifications to which it is proposed the licence 1s

to be subject". As has been said, the definition of "specification" in s.80(1) includes "(f) a matter that, by virtue of section 111C, falls within the responsibility of the Minister." Although s.111C(1) confers a number of responsibilities upon the Minister, 1t would seem that only the matters dealt with in sub-paras.(b),(c) and (d) of that provision would be appropriate to be specified in an outline of "specifications" for the ~ purposes of the statutory notice. That is to say, the questions of principle contemplated to be dealt with pursuant to s.111C(1)(a) are inapposite for expression as conditions of the grant of licence. I would construe s.82(1)(a) as picking up only

limbs (b),(c) and (d) of s.1llli(c)(1) for this purpose.

In the absence of anv demonstrated nexus between the planning provided for by s.111C(1) (a) and the publication of the notice under s.82(1), the appellant must

But. in any event, even if the appellant could make good its first proposition, its second proposition of law cannot, in my opinion, be maintained for the reasons given earlier by Toohey, J. and for the reasons now given by

present purposes pursuant to 5.111C(2)(a) (see Sinfield v.

London Transport Executive £19701 1 Ch. 550 at p.558), the question of invalidation of the action challenged 1s one of construction of the statute. For present purposes, the decision and reasoning of the Court of Appeal of the Supreme Court of New South Wales in Attorney-General (N.S.W.) Ex

Rel. Franklins Stores Pty. Ltd. v. Lizelle Pty. Ltd. (1977)

2N.5.W.L.R. 955 15, I think, squarely in point. There. by

a direction purportedly given under an ordinance made under the Local Government Act, 1919 (N.S.W.), a council in control of certain land was directed to consult with another

authority in respect of certain applications for permission to carry out development on the land. The council purported

to give consent to an application for development on the land but did not consult with the authority. It was held,

for reasons not presently material, that the direction was

invalid. It was further held that. even if the direction

were valid, the failure to consult did not invalidate the

"For over one hundred years since such cases as Liverpool Borough Bank v. Turner, Caldow v. Pixell and Howard v. Bodington the basic rule has been as stated by Denman J. in Caldow v. Pixell, namely, that the scope and object of the statute are the only guides.

The provision with which we are here concerned is one whereunder a council is, for planning purposes. required to seek the views of some other person or authority before dealing with a development application and, by implication. to pay heed to those views. It is a process to be carried out in private between the council and the referee, and 1t will be evidenced in their respective files and nowhere be of public record. The consent which may issue following

auch consultation will not. in the ordinary course, recite the fact of consultation, much less 1ts absence.

Ueon the basis of the consent 50 issued, companies may be formed, capital subscribed. bulidings erected and commitments cf all kinds made. Is the leqisiature to be presumed to intend that. at any time after the 1ssue of the consent. its validity 1s to be open to impeachment ts the détriment of all who acted on tne faith of it? Did the legislature intend that those who wished to rely upon a development consent should seek to-ascertain wheather in the particular case ccnsultation was svequired and. af sc. -~thether the private files of the csunecil and the referee evidenced 1t? Did it intend tnat. if the answers to indulry were favourakls, but incorrect, tne person acting should vemain unprotected? Ts my mind these questions tuggest an answer. The presumption ais tnat Parliament intends no injustice: Foy. E: Maxwell, op.c1it.. 208)."

"This is a caze in which. in act Nermandin's case, the unexpressed intention of the legislature must be aiscerned by a consideration of the scone and object of the jevislature. Myvere J. in Attorney-General v. Jil, Serry Constructions Ftv. Lid. advertea ta many ot the conziderations. The injustice or inconvenience to others who have no actual control over the council in exercising 1ts duty iz manifest. There would. as this case demonstrates. be a serious éencvcachment uron tne fields of certainty and. in my opinion. the more objectionabis course is to construe the statute as mandatory or imperative in reapect of a requirement of consultation or of substantial consultation.

Iam. therefore. of the view that. even if consultation was required. the consent lasued Was not, by reason of its absence. invalid."

pursuant to 3.111C(2)(a) may usefully be contrasted with the

position which would arise if a licence were to he purportedly granted by the Tribunal in the absence of the

publication of the notice required by s.82(1). In that

event, the reasoning in Scure v. Brisbane City Council

(1973) 133 C.L.R. 242 would be applicable so that, to borrow the language of Stephen, J. in that case (at p.255), the giving of such notice would be construed as a "condition precedent to any consideration of (an) application by the tTribunal)." However, for the reasons already given, I do not think it 1s possible to construe $s.111C so as to make the consultative process called for by s.111C(2) a condition

precedent to the publication of a notice pursuant to

I would answer the questions reserved in the terms ef Toohev, J., with one exception. The learned Judge answered question 1{b) ain the affirmative. Because the

answer to that question may depend upon questions of fact vet to be resolved, I would answer that question: "It is unnecessary to answer this question." Subject to that. I would dismiss the first appeal with costs. It must also follow that, in My view. the cross-appeal should be

dismissed with costs. I would also dismiss the second

| certify that this and the 23 preceding pages are a true copy of ihe reasons for judgment herein of T' a Honourable Mr Justice Beaumant.