Community Television Sydney Limited v Australian Broadcasting Authority

REASONS FOR JUDGMENT 1 These proceedings were commenced on 19 March 2004. The applicant ('CTS') challenged a decision of the first respondent, the Australian Broadcasting Authority ('the Authority'), made the previous day, 18 March 2004. On that date, the Authority decided to allocate a community broadcasting licence for Sydney to the second respondent ('TVS') and not to CTS, a competing applicant for the licence ('the allocation decision'). 2 Since CTS's existing apparatus licence expired on 19 March 2004, the proceedings had to be dealt with urgently. The matter came before Emmett J as duty Judge on 19 March 2004, when CTS sought urgent interim relief in view of the imminent expiration of its apparatus licence. On that occasion, TVS, although joined as a party, did not appear. The Authority declined to consent to an interlocutory regime to preserve the status quo. However, his Honour made interim orders suspending the allocation decision until 22 March 2004 and staying all proceedings under the allocation decision. 3 On 22 March 2004, the matter again came before Emmett J. On that occasion TVS appeared and was represented by counsel, although it did not file a notice of appearance until the following day. Orders were made by consent on that day extending the interim orders and setting the matter down for final hearing on 25 March 2004. 4 On 25 March 2004, I heard the application. Both the Authority and TVS were represented by senior counsel, as was CTS. The Authority and TVS each made written and oral submissions opposing CTS's claim for relief. 5 I delivered judgment on 16 April 2004, dismissing the application ([2004] FCA 443). In the judgment I said this about the Authority's role in the proceedings (at [5]-[7]): '[A]t the hearing in this Court all three parties were represented by senior counsel. Mr Gageler SC, who appeared with Mr Smark for the Authority, read without objection an affidavit, tendered some documents and made detailed submissions in opposition to the relief sought by CTS. In the course of Mr Gageler's submissions, I suggested that the role adopted by the Authority in the litigation, having regard to the fact that there was a contradictor present in the form of TVS, appeared to be inconsistent with the observations of the High Court in The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, at 35-36. There the High Court pointed out that if a tribunal (or in this case the Authority) becomes a protagonist in litigation challenging its decisions 'there is the risk that…it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted'. Mr Robertson SC, who appeared for TVS, justified the Authority's role on the ground that, in substance, it was simply providing assistance to the Court by explaining its powers and the operation of the Broadcasting Act. Although the Authority presented valuable material explaining the background to the allocation decision, in my view it went beyond merely assisting the Court in relation to the Authority's powers and procedures. In effect, it resisted the applicant's claim by addressing and attempting to refute each of its arguments. In other words, it became a protagonist in the proceedings. Consistently with the pronouncement of the High Court, unless there are exceptional circumstances, not present in this case, the Authority should not adopt this role. I note that in Wyong-Gosford Progressive Community Radio Inc v Australian Broadcasting Authority (2003) 125 FCR 560, the Authority seems to have acted as a contradictor in proceedings challenging a decision to allocate a CTV licence. Indeed, the Authority was ordered to pay the costs of the successful application to review its decision. However, no objection seems to have been taken to the Authority acting in this way and the question was not addressed in the judgment.' 6 In the judgment, I expressed my 'present view' that the only order for costs that should be made was that CTS pay TVS's costs (at [88]). I foreshadowed making no order for costs in favour of the Authority because of the view I had expressed as to the role it had played in the proceedings. However, I gave the parties the opportunity to file written submissions on costs. 7 The Authority duly filed written submissions contending that it should not be denied its costs. It contended that