35 Where the Australian Broadcasting Tribunal submits, as mandated by the High Court in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 35-36, it has been said that costs should not usually be awarded against the Tribunal where it is found to have fallen into error: Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 3) (1987) 77 ALR 609. There Wilcox J said at 611-612:
At one time it was considered to be a proper course for the [Australian Broadcasting] tribunal actively to participate in the argument upon judicial review of its rulings and decisions. However, in R v Australian Broadcasting Tribunal ; Ex parte Hardiman (1980) 144 CLR 13 at 35-6; 29 ALR 289, the High Court of Australia stated, in emphatic terms, that it would not normally be a proper course for the tribunal to enter the lists as a protagonist in defence of a decision which it had made upon a licence application. Since that date, so far as I am aware, the tribunal has consistently followed the practice of confining itself, upon such occasions, to putting such factual material before the court as has been thought necessary to enable the court to understand what had occurred, and to assisting the court by submissions - for example, as to the relevant provisions of the Act - but without taking an adversarial position. In other words, in compliance with the precept laid down in the High Court, the tribunal has desisted from putting active argument to support its decisions under challenge. In some respects the tribunal's position, when judicial review occurs, is not unlike that of a court whose decision is attacked upon appeal. In such a case, of course, the court takes no part in the appeal, the course of which, in terms of argument, depends upon the participation of the parties who have a personal interest in the result.
Although there is no question that the court has power, notwithstanding the matters to which I have referred, in disposing of an application under the Administrative Decisions (Judicial Review) Act 1977 to order the tribunal to pay costs, I think that the circumscribed role of the tribunal is a matter to be taken into account in exercising the discretion as to costs. It seems to me somewhat hard for the courts at the one time to tell the tribunal that it should not actively intervene to defend its decisions and, at the same time, to order the tribunal to pay costs if, without its having had an opportunity of defending a decision, the decision is held to be bad in law. I would not wish to prescribe any categorical rule, but I indicate my opinion that only in an unusual case should the court order that the tribunal pay costs, where there are contending applicants for a licence who have been the parties actively debating the matter before the court. I say this, of course, notwithstanding the fact that, in the particular case, the court might hold that the tribunal fell into error and thus, like an inferior court whose decision is reversed on appeal, that it was, in one sense, the cause of the litigation occurring.