Administrative Appeals Tribunal of Australia|2002-09-24|Before: Radio Australia P, Downes J

GB Radio Australia P/L and Australian Communications Authority and Anor [2002] AATA 919 (24 September 2002)

DECISION AND REASONS FOR DECISION [2002] AATA 919

Decision 1. The decision to reinstate Pieter Marchant as licensee of licenses numbered 1130395, 1130396, 1151299, 1151390 and 1311787 be set aside and in lieu thereof the tribunal decides that each of the licenses be issued in the name of G B Radio (Australia) Pty Ltd as from 18 November 1998, with the same expiry date as each of those licenses now has; and 2. The decision refusing to adjust the Register to reflect G B Radio (Australia) Pty Ltd as the holder of each of the licenses be set aside, and in lieu thereof the Tribunal decides to correct the Register to show G B Radio (Australia) Pty Ltd as the holder of each of the licenses as from 18 November 1998.

Radiocommunications - Apparatus licenses - Validity of transfer of licenses by Australian Communications Authority from an individual to a corporation - Request for transfer not provided on approved form - Fee waived - Whether irregular transfer has no effect - Where the Authority subsequently transferred the licenses from the corporation back to the individual at individual's request - Whether that transfer was valid - Authority required to keep a register of license holders - Purported correction of the register - Extent of power to correct register - Radiocommunications Act 1992 (Cth), ss 131AA, 131AB, 144, 153

1. Provision is made in the Radiocommunications Act 1992 (the Act) for the issuing of what are called apparatus licences which permit the holder to operate radiocommunications devices. These applications concern five radio broadcasting apparatus licences issued under the Act.

2. Two of the licences authorise narrowband services broadcasting at high frequency within the AM band from a site near Melbourne and a site near Sydney. These services can be received within a radius of some 50 kilometres. The remaining three licences authorise narrowcasting services broadcasting within the FM band from two sites near Melbourne and a site in Sydney. These have a very limited range of little more than one kilometre although, depending on conditions, they may sometimes reach up to about 10 kilometres.

3. The applications for the licences were made by the joined party in these proceedings, Pieter Marchant. The applications were signed by Mr Marchant. Most of them showed "G B Radio" as a trading name and the word "Director" against the words "Position in Organisation (if applicable)" on the form.

4. In written communications with the Spectrum Management Agency, which was the regulatory authority under the Act at the time, Mr Marchant used letterhead bearing the name "G B Radio" and frequently referred to activities relating to the licence applications by use of the words "we" and "our". For example, he wrote in a letter dated 3 January 1995: "... we wish to obtain AM licences ..." and "... our whole future is dependent on the licences ...". In a letter dated 8 August 1995 he wrote "... our funding comes from the U.K." Most of Mr Marchant's dealings were with the Melbourne office of the Agency. However, in a letter dated 5 February, 1997 to its Canberra office Mr Marchant referred to "... my G B Radio partner, Roger Thomas ..."

5. Although the details are not relevant to the matters before me, it seems that Mr Marchant was not acting only on his own behalf in making the applications. However, Mr Marchant made no greater disclosure of this in his dealings with the Agency than appears above. It may be that a careful analysis of the communications, particularly with hindsight, would suggest to the reader that Mr Marchant was not acting alone, but I accept that the person with whom he had most dealings at the Agency, Mr Michael Owens, who gave evidence before me, proceeded on the basis that Mr Marchant was acting alone.

6. The two narrowband licences were issued at the end of January 1996. Their original terms were twelve months. It is not clear precisely when the three narrowcasting licences were issued, but they were all in place before the end of 1997. At least two of them appear to have had longer original terms.

7. On 8 February 1998 Mr Marchant wrote ("Attn. Mick Owens") to the Australian Communications Authority (the respondent) which had by then become the regulatory authority. He requested the Authority to "organise for these licences [the narrowcast licences], AND the two GB Radio licences (1611 Sydney; 1620 Melbourne) to be shown in my personal name and all under the same client number." This informal handwritten request was acted upon by the Authority which thereupon recorded the holder of each licence as "Pieter Marchant" and gave him one client number. At the same time the narrowcast licences were renewed for five years. Prior to this at least one of the narrowcast licences appears to have been held in the name "British Electronic Industries". A new licence was apparently issued in the name of Mr Marchant with a new licence number, but the particulars of the licence, including the spectrum access number, and the site number, appear not to have changed. How and when these changes occurred does not appear from the evidence. The other licences were originally held either in the name "P Marchant GB Radio" or "Pieter Marchant." At least one of the licences had previously changed from the former to the latter (T28 and T46).

8. On 16 November 1998 Mr Marchant signed the following letter to the Authority ("Attention: Mick Owens"). It was written on letterhead identifying GB Radio (Australia) Pty Ltd (the Company):

Ref: Licence Number: 1130395:1130396:1151299:1151390:1311787

As can be seen from the above header, GB Radio (Australia) is now a fully registered "P/L" company.

It is sensible for the above mentioned licences to now be transferred from their temporary ownership, in my personal name, to the Company name.

I would appreciate the necessary amendments being made as soon as possible and new licences issued in the name of GB Radio (Australia).

Any problems, please call me on 97209696 or 0418 318 029.

This letter must be read as an application for transfer by both Mr Marchant and the Company which was signed by Mr Marchant on behalf of the Company and on his own behalf. This is shown by the letterhead, by the text of the letter, and by the manner of signing.

9. Mr Owens replied in writing on 18 November 1998 on the letterhead of the Authority addressed to "Mr P Marchant, GB Radio (Australia)" P/L" as follows:

I refer to your letter of 16 November 1998 advising that you have registered your company GB Radio (Australia) P/L and would like all licences in your name transferred to the new company.

This transfer would normally attract a fee of $30.00 per licence however, as you are just transferring them to your own company I have waived this requirement. A copy of each of your licences is attached.

10. Each of the licences was thereafter reissued in the name of GB Radio (Australia) Pty Ltd. The two narrowband licences were shown as having been issued on 9 January 1998 with dates of effect of 23 January 1998 and 30 January 1998 and dates of expiry of 22 January 1999 and 29 January 1999 (T45 and T47). The three narrowcasting licences appear when reissued to have shown issue dates of 26 November 1997, 27 November 1997 and 17 February 1998, dates of effect of 30 April 1997, 1 June 1997 and 17 February 1998 and dates of expiry of 28 April 2002, 31 May 2002 and 16 February 2003 (T41, T43, and T50). The licence shown as issuing on 17 February 1998 is the successor to the licence originally issued in the name of "British Electronic Industries" (T36).

11. The material before me includes (T69) a copy of a letter to the Authority dated 30 November 1998 written by "Kerry Grills" as director on the letterhead of GB Radio (Australia) Pty Ltd as follows:

Thank you for your letter about the radio licences which you have now transferred to the company for us.

And thanks also for waiving the fee normally associated with licence transfers. It's very much appreciated by Pieter Marchant and the other directors of the company.

Now that we're using the licences under our company structure, would you kindly take this as our official advice to the ACA that any actions instigated by us concerning those licences will need in future to be signed by at least two of the directors of the company.

Again, many thanks for your help with the transfers.

12. The letter is attached to a letter to the Authority from the applicant dated 7 July 1999. I was told by counsel for the Authority that the original letter had not been received. In the absence of further evidence I will proceed on the basis that the letter was either not sent or not received.

13. The applicant renewed the two narrowband licences in January 1999 and the Authority issued licences showing a date of issue of 18 January 1999 and dates of effect of 23 January 1999 and 30 January 1999 and dates of expiry of 22 January 2000 and 29 January 2000.

14. On 10 June 1999 Mr Marchant wrote to the Authority. The letter was written on his own behalf. It did not purport to be written on behalf of GB Radio or of GB Radio (Australia) Pty Ltd. A heading to the letter identified by number the five licences and also "Client Number 115089" which was the client number for the Company. The letter asserted a belief by Mr Marchant that he had been "'conned' out of the above assets" and that "under duress" he had "agreed to transfer the licences". At two points in the letter Mr Marchant referred to not having signed any "official" transfer. The letter appears to disclose that Mr Marchant never held the licences solely for himself. The letter requested that "the ... licences be immediately transferred back into my personal name."

15. On 25 June 1999 Arthur Brunton, writing as "OIC Licencing, Customer Access Team" of the Authority, wrote to Mr Marchant and to "Messrs K Grills and R Thomas" as directors of the applicant. Prior to this communication no contact was made by the Authority with the Company or anyone on its behalf. The two letters were in similar terms. In the letter to the Company Mr Brunton referred to Mr Marchant "requesting re-examination" of his "request ... for ... transfer" and noted both that no "approved transfer form ... had ... been lodged" and that "the required amount of $185.00 ... in transfer fees had not been tendered." The letter continued:

"Accordingly, a mistake was made in registering, in accordance with section 148(d) of the Radiocommunications Act 1992, which states:

"The ACA must, as soon as practicable, make the changes to the information in the Register about an apparatus licence that the ACA considers are necessary or convenient in order to take into account any transfer of the licence under section 131AB."

the transfers in the Register of Radiocommunications Licences.

This means that information in the Register is incorrect. The Register cannot be considered as correct if information in it is based on a wrong entry or wrong entries by the ACA that are not supported by a valid decision. Therefore in accordance with the provisions of section 153 (1) and section 153(2) (a) of the Radiocommunciations Act 992, which states:

(1) The ACA may, at any time, correct information in the Register,

(2)(a) The correction may be made in any case-on the ACA's own initiative,

action has been take re-instate Mr Pieter Marchant as the licensee of the abovementioned licences."

The letter concluded by advising the applicant of its rights to seek reconsideration of the decision by the Authority and to a review of the decision by this Tribunal or the Commonwealth Ombudsman.

16. By letter dated 7 July 1999 the applicant protested against the Authority's conduct. The letter was written in strong terms. It contains the following paragraph:

"We request that the ACA review the action they have taken in the light of the two transfers during 1998, and then correctly adjust the register to reflect GB Radio (Australia) Pty Ltd as the licence holders".

In a letter dated 19 July 1999 in reply the Authority affirmed its action.

17. On 16 August 1999 GB Radio (Australia) Pty Ltd applied to this Tribunal for review of a decision described in the application as follows:

"The alterations of the Radiocommunications Register changing the name of the Licensee from the Applicant to Pieter Marchant. See attached:

* Copy letter from Australian Communications Authority dated 25th June 1999.

* Copy letter from the Applicant dated 7th July 1999.

* Copy letter from Australian Communication Authority dated 19th July 1999."

18. This matter has had an unfortunate history. There was a challenge to the jurisdiction of the Tribunal. This was heard as a preliminary matter by Senior Member Handley on 2 November 2000, who published reasons on 25 January 2001 finding that the Tribunal did have jurisdiction. There was an appeal to the Federal Court of Australia. The appeal was listed for hearing on 6 February 2002. Just prior to the hearing of the appeal the appellant withdrew the appeal as incompetent (see Director-General Social Services v Chaney [1980] FCA 87; (1980) 31 ALR 571). The matter came before me for hearing on 29 July 2002.

19. In the event the application has taken almost three years to come on for hearing. During that time all but one of the licences have fallen due for further renewal and each of them have been renewed by Mr Marchant.

20. The evidence before me as to the current use of the licences is sketchy. It seems that the applicant operates a radio station in Melbourne and that Mr Marchant has authorised a third party, which is apparently on notice of the dispute between the applicant and Mr Marchant, to broadcast pursuant to the Sydney narrowband licence.

21. I have been informed that there are proceedings between the parties in the Supreme Court of Victoria relating to the beneficial entitlements to the licences. Those proceedings have not been heard and I was given no indication as to when they might be heard. There was apparently an injunction in place but that has now been discharged. Mr Marchant has given an undertaking in the proceedings "that he will keep a full account of his dealings with the licences and the income generated by them."

22. Apparatus licences authorising radio broadcasting are provided for in Part 3.3 of the Radiocommunications Act, 1992 (the Act). The authority is empowered to issue licences under s.97. Division 8 of Part 3.3 deals with transfer of apparatus licences. Sections 131 AA and 131 AB are as follows:-

131AA Applications for transfer of apparatus licences

(1) Subject to section 131AC, a licensee of an apparatus licence may, at any time before the licence is due to expire, apply in writing to the ACA for the licence to be transferred to another person.

(2) The application must be in a form approved by the ACA and must be signed by both the licensee and the proposed transferee.

(3) The ACA may approve different forms for transfer of different types of apparatus licence.

(4) An NBS transmitter licence cannot be transferred to any person other than:

(b) the Special Broadcasting Service Corporation; or

(1) Subject to sections 131AC and 131ACA, when an application is made, the ACA may transfer the licence into the name of the transferee.

(2) In deciding whether to transfer the licence, the ACA:

(a) except in the case of a licence issued under section 100B --must have regard to the same matters to which it must have regard under subsections 100 (4) and (6) in deciding whether to issue such a licence; and

(b) except in the case of a licence issued under section 100B --may have regard to the same matters to which it may have regard under subsection 100 (5) in deciding whether to issue such a licence; and

(c) in the case of a licence issued under section 100B--must have regard to the scheme in force under clause 19 of Schedule 4 to the Broadcasting Services Act 1992.

(a) subject to Divisions 6 and 6A, continues in force until the end of the period for which the licence is in force when issued to the initial licensee; and

(b) subject to section 111, continues on the same conditions as those which applied immediately before the transfer.

23. Part 3.5 of the Act deals with Regulation of Licences. Section 143 requires the keeping of a Register of Radiocommunications Licences. It provides that the Register may be kept by electronic means. Section 144 provides for the information that is to be contained in the Register. This includes "the licensee's name and postal address." Section 153 authorises the correction of the Register. It is in the following terms:

(1) The ACA may, at any time, correct information in the Register.

(b) if the information is about a spectrum licence or an apparatus licence--on the application of the licensee or a person authorised by the licensee to operate radiocommunications devices under the licence.

(3) An application under paragraph (2)(b) must be in a form approved by the ACA.

(4) On making a correction, the ACA must give written notice of the correction to:

(b) if an application was made under paragraph (2)(b) by a person

(other than the licensee) for the information to be corrected--that

subsection (6) in relation to the licence to which the correction

(5) On refusing an application for a correction, the ACA must give to the applicant written notice of the refusal, together with a statement of its reasons.

Note: Refusals to correct the Register are reviewable decisions under Part 5.6.

(6) A person may give a written notice to the ACA stating that the person wishes to be notified about corrections to the Register in relation to specified licences.

24. The case presented to me by the applicant is simple. It is that both the applicant and the joined party requested the Authority to transfer the licences to the applicant, that the Authority effected the transfers, and no basis was made out for the Authority to conclude that the transfer was not effected in accordance with the wishes of the parties at the time.

25. The Authority and the joined party respond by saying that the transfers were effected irregularly, that they accordingly had no effect, and when this was drawn to the attention of the Authority it was appropriate for the Authority to correct the Register.

26. The applicant further argues that even if the transfer was irregular no correction of the Register should have been made. The joined party further argues that even if the Authority should not have corrected the Register the current status quo should be preserved and no further correction should be made. However, the primary issue before me is whether the original transfers were invalid and of no legal effect.

27. The first thing to be noticed is that it is not the licensee that transfers a licence to a transferee. The licensee applies "for the licence to be transferred" (s.131 AA(1)). Upon receipt of an application the Authority "may transfer the licence" (s.131 AB (1)). The act of transfer is the act of the Authority. The Act provides that an application for transfer must be "in a form approved by" the Authority.

28. There was a form of "Application for transfer of apparatus licence" in use by the Authority in November 1998. It had been adopted during the period when the Spectrum Management Agency was the regulatory authority. I am prepared to accept that it was then properly adopted as an approved form. The Authority continued to use this form with a change in name from the Agency to the Authority. I am prepared to accept that the form so changed is an approved form.

29. Plainly the relevant application for transfer was not made on the approved form to which I have referred. The critical first question for my consideration is whether this rendered any transfer invalid.

30. I cannot help noting at this point that the letter from Mr Marchant which prompted the decision to "re-instate" Mr Marchant as licensee was also apparently not in a form approved by the Authority as required by s.153(2) of the Act. However, although the re-instatement was a response to Mr Marchant's letter the Authority asserts that it acted on its "own initiative". Such a view of what happened is quite technical.

31. The respondent and the joined party put to me that each transfer to the Company was "[a]n act done in breach of a condition regulating the exercise of a statutory power," namely the requirement for an application for transfer to be in an approved form, and that the transfer was invalid because "there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition." The quoted words come from the majority judgment (McHugh, Gummow, Kirby and Hayne JJ) in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at pp 388-389; 1998 HCA 28 para 91. The transfer was accordingly invalid.

32. It occurs to me that the act of effecting a transfer by the Authority may itself amount to an approval of the form in which the request for transfer is couched. The alternatives where a non conforming application for transfer is acted upon are either that there is, to use the High Court's words, "a breach of a condition" or that there is an approval of the form actually used. I can see an argument that the policy of the legislation is to permit the Authority to require applicants for transfer to comply with its requirements as to form but that where the person in the Authority who is dealing with a transfer is satisfied with the form of application the policy is irrelevant. However, this argument was not expressly put to me and consequently not explored in argument. Accordingly, I will pass from it.

33. I proceed on the basis that in effecting a transfer pursuant to the informal request contained in the letter of 16 November, 1998 the Authority acted in breach of a statutory condition. The consequential question is whether "it was a purpose of the legislation that an act done in breach of the provision should be invalid" (Project Blue Sky (supra) at p 389, para 93). I note the following observation of the majority in Project Blue Sky at (p 391, para 95):

"When a legislative provision directs that a power or function be carried out in accordance with matters of policy, ordinarily the better conclusion is that the direction goes to the administration of a power or function rather than to its validity."

34. I was taken in argument to a number of authorities on the question of invalidity contained in Project Blue Sky (supra). These included the decision of the New South Wales Court of Appeal in Tasker v Fullwood [1978] 1 NSWLR 20 which was approved in Project Blue Sky (supra). They also included Hatton v Beaumont [1977] 2 NSWLR 211; Attorney-General ex rel. Franklins Stores Pty Ltd v Lizelle Pty Ltd [1977] 2 NSWLR 955; National Mutual Fire Insurance Co. Ltd v The Commonwealth [1981] 1 NSWLR 400; TVW Enterprizes Ltd v Duffy [No.3] [1985] FCA 382; (1985) 8 FCR 93; McRae v Coulton (1986) 7 NSWLR 644; Australian Broadcasting Corporation v Redmore Pty Ltd [1989] HCA 15; (1989) 166 CLR 454; Yates Security Services Pty Ltd v Keating (1990) 25 FCR 1; Wang v Commissioner of Inland Revenue [1995] 1 All ER 367; and Accident Compensation Commission v Murphy [1988] VicRp 52; [1988] VR 444 all but the last of which were referred to with approval in Project Blue Sky (supra, at p 390, para 93).

35. I do not think that I need to address these cases in detail. They are all illustrations of the principle which has found its most recent expression in Project Blue Sky (supra). I bear these decisions in mind but I am primarily guided by Project Blue Sky (supra) itself.

36. I do not think that ss.131AA and 131AB either alone or in their context reveal a legislative purpose to invalidate transfers effected pursuant to a non conforming request for transfer. I repeat that the act of transfer is not the act of the parties but the act of the Authority. The primary act which is said to be in breach of the Act is the act of lodging a transfer application which is not in the proper form. The application is undoubtedly one which the Authority could reject. I can discern a legislative purpose to aid the Authority in rejecting an informal request for transfer. But where the Authority decides, without complaining, to act on an informal application I do not discern a legislative policy that what it does is invalid.

37. I can even see an argument that the relevant legislative policy would be not only that such a transfer would be not invalid but, on the contrary, that it should positively be valid. If every defective transfer is invalid, and, upon discovery, long after, the Authority is required to amend the Register then a degree of uncertainty as to the authoritativeness of the register might arise. Such uncertainty would defeat the very purpose of having a register.

38. Where a transfer was procured by fraud different considerations might arise. However, notwithstanding the initial complaint of Mr Marchant in his letter of 10 June 1999, no positive case of fraud was put to me and the Authority did not act on the basis of any finding of fraud. The Authority acted merely on the basis that the application for transfer was not in the proper form.

39. It was submitted for the Authority that the legislative scheme behind the Act is one of regulation associated with revenue raising. The revenue is raised through taxation levied under the Radiocommunications (Transmitter License Tax) Act 1983 and the Radiocommunications Taxes Collection Act 1983. Broadcasting without a licence renders an offender open to both criminal (s 46) and civil (s 50) proceedings. The scheme of the Act, it was said, is that there should be accurate licensing procedures and a verifiable register, which object was thwarted if the Register was allowed to show licensees whose names were inserted on the register pursuant to invalid transfers. It was necessary, therefore, to ensure that the Register always conformed to the state of dealings which, upon examination, conformed with the legislation.

40. I think this argument is substantially flawed. To the extent that it is based upon a legislative purpose of certainty by having "a verifiable register", as it was put in oral argument, or "accurate licensing procedures", as it was put in written submissions, the argument seems to me to lead to the opposite conclusion.

41. Let me illustrate my point by reference to the present case. If the Authority is correct, in the period between 18 November 1998 and 25 June 1999 it would not have been competent for the Authority to take proceedings against the Company for some breach committed as licensee, because it was not the true licensee. This would be so notwithstanding that the transfer was made pursuant to an application for transfer signed on its behalf and the actual effecting of the transfer. It would have had to prosecute Mr Marchant. This would be so even if both the Company and Mr Marchant bona fide believed that the Company was the licensee. The same would be true in any other case where a non conforming application was used for a bona fide transfer. Cases of fraud must be put to one side. It may be accepted that quite different considerations might then arise. The present case must be dealt with on the basis that Mr Marchant signed the letter of 16 November 1998 both for himself and the Company.

42. I can discern no legislative policy supporting the above approach. Indeed, if the relevant legislative policy is associated with revenue raising it seems to me that it would favour the uncomplicated position that where a genuine application for transfer was made pursuant to a non conforming application but the transfer was actually effected then the transfer would be binding and the register should be taken at its face value.

43. If the respondent's submissions are correct the question arises, given the readiness with which Mr Owens effected a non conforming transfer, whether the Authority should conduct a thorough review of all transfers and where, even in the slightest degree, it considers that a transfer is defective, to correct the Register to show the transferor as licensee. Where subsequent transfers have taken place even more difficult issues would arise. None of these issues would arise if non conforming but genuine applications lead to valid transfers. I cannot think that the legislature intended that they should not.

44. These conclusions appear to be supported by the terms of s.25C of the Acts Interpretation Act 1901.

45. The case for invalidity was also supported by reference to the Authority waiving the fee on transfer. It does not seem to me, however, that an invalidating purpose can be seen in the waiving of fees any more than in acceptance of an informal request for transfer. I proceed on the basis that the fee was provided for in the Radiocommunications (Charges) Determination Number 1 of 1999, made pursuant to s.53 of the Australian Communications Authority Act 1997. It may have been inappropriate for the Authority to waive the fee it ordinarily charged but I see no legislative purpose to invalidate a transfer where the Authority has effected the transfer after informing the applicant that it need not pay the fee.

46. If follows that there is nothing before me which justified the conduct of Mr Brunton in altering the Register and the basis he identified for the change to the Register did not justify the change. It further follows that the Authority should have acceded to the Company's request to restore its name to the Register.

47. As no request for transfer under ss.131AA and 131AB preceded Mr Brunton's action in changing the register, that action cannot be viewed as a transfer. Indeed, it was intended to be a cancellation of the prior transfer. If, as I find, at that time the Company was the true licensee then the alteration of the register accompanied by the issue of licences in the name of the joint party must be characterised as an unlawful termination of the Company's licences.

48. The joined party placed reliance upon the Authority's belief that the Company was simply Mr Marchant's company. However, that cannot deny the fact that the Company was a separate legal entity to which the licenses were transferred. The act of transfer cannot be explained away by suggesting that the Authority characterised it as something less than it was in law. In any event there is no evidence before me that the Company was other than a reflection of the interest which Mr Marchant had in the licence. I have seen references to some of the claims made in the Supreme Court proceedings but they merely pose questions and supply no answers. In any event I have been told that the underlying merits are not to be considered by me. In those circumstances I cannot embark upon the question of whether the Company was or was not the alter ego of Mr Marchant, or, for that matter, of whoever the beneficial owners of the licenses were at the time of the transfer to the Company. The transfer remains a transfer from one legal persona to another.

49. Reliance was also placed upon the failure of the Authority to give consideration to the policy considerations covered by ss.100(4) and (6) of the Act as required by s.131AB(2). I cannot imagine that evidence by an officer of the Authority that he did not turn his mind to there issues was intended to render a transfer invalid. This must particularly be so when it is not asserted that there was any particular matter arising under ss.100(4) and (6) which would, or might, have resulted in the application for transfer being refused. The evidence does not suggest there was any particular analysis of these matters undertaken at the time the licences were originally issued. There must come a time when asserted failures to comply with obligations imposed on the Authority, first asserted after the event, will not jeopardise transfers effected by the Authority pursuant to a bona fide request by applicants for transfer.

50. The decision primarily attacked in the application to this Tribunal is the alteration of the register. However, the application refers also to the correspondence which followed by which the Company sought, and the Authority refused, to reinstate the Company on the Register. I think it is accepted that the application before me extends to the decision not to reinstate as well. In any event, I am satisfied that it does. The terms of the application are wide enough to raise the decision to refuse to reinstate the Company and all parties have been aware that that was a matter in issue since the decision of Senior Member Handley was given on 25 January 2001.

51. Were I to be reconsidering these two decisions of the Authority at or shortly after the time when they were made I should not have approved the alteration of the Register in the first place and, accepting that such a decision had already been made, would have reversed it. However, more than three years have since passed, all but one of the licences have since been renewed, there is litigation before the Supreme Court of Victoria which will ultimately determine the true beneficial entitlement to the licences (whereupon the parties can be ordered to lodge appropriate applications for transfer if damages are not deemed an adequate remedy) and so a question arises as to whether I should still intervene.

52. Two related issues arise. The first is whether I should act on the facts as they are now, rather than the facts as they were, and, if I should, what effect that has. The second is whether, as the joined party urges on me, I should decline to make a new decision for the purpose of preserving the current status quo which has operated for three years.

53. So far as the first matter is concerned there are no new facts relative to the substance of the matter which are before me but which were not before the Authority. While it is well established that in merit review account is taken of facts occurring after the date of the reviewable decision (Jebb v Repatriation Commission [1988] FCA 105; (1988) 80 ALR 329 at p 333; Freeman v Secretary, Department of Social Security [1988] FCA 294; (1980) 15 ALD 671 at p 674 and Comptroller-General of Customs v Akai Pty Ltd (1994) 50 FCR 511) these are usually facts associated with the substance of the decision. The only new facts that have arisen in this case are facts associated with the passage of time. On the first matter alone I would not decline to now make the decision which should have been made three years ago.

54. I turn to the question of whether the passage of time and the changes in circumstances which must have come with it are reasons militating against my now remaking the decision under review.

55. The power given by s.153 of the Act to rectify the Register must be discretionary in character. The power of a court to rectify a company register is certainly of that character. However, the discretion must be exercised in a principled way.

56. Delay in making application to a court for correction of the register of members of a company can disentitle a claimant to relief, particularly where third party interests intervene: Lloyd v Cardiff Coal Company, Supreme Court of New South Wales, 5 February 1996, 3175/95 (unreported decision); Civil Service Co-Operative Society v Blyth [1914] HCA 17; (1914) 17 CLR 601 at p 613; Coogee Amusement Park v Bolton (1930) 30 SR (NSW) 207; In re Lucks Limited [1928] VicLawRp 66; (1928) VLR 466 at p 472; Whittlesea Land Company [1892] VicLawRp 106; (1892) 18 VLR 557 at pp 560-1; and Sharpley v Louth and East Coast Railway Company [1876] 2 Ch.D. 663 at p 685. However, in the present case the applicant did not delay in making application to the Tribunal. The only delay has been in the hearing. Moreover, it seems that the only third party with an affected interest is on notice of the dispute as to entitlement to the licences.

57. I have only the barest outline of circumstances which might lead the applicant to be deprived of the remaking of the decisions under review. It has been urged upon me that the parties have proceeded under a regime for some years without apparent detriment and that that regime should continue. However, apart from being told of the undertaking given by Mr Marchant and set out above I know nothing of this regime. I do know, by its maintenance of this application, that the applicant does not agree with it. I have been given no satisfactory explanation of how and by whom the licenses are currently exploited, if, indeed, they are. Statements were made by counsel that the applicant operated a radio station in Melbourne and that a radio station was operated in Sydney by someone authorised by the joined party. I know nothing more than this. This paucity of material does not seem to me to be any satisfactory basis to evaluate the circumstances in which an applicant who has made out a case should be deprived of a favourable determination.

58. I see no principled basis for upholding the submission that I should act to preserve the status quo. No new facts relating the substance of the dispute have emerged which suggest that result. The applicant has not delayed in bringing these proceedings. No prejudice has been made out from any delay in the proceeding's coming on for hearing. I am accordingly satisfied that no case is made out that the Register should be left as it now is.

59. There are two relevant decisions which I have been asked to review. The first is the decision "to re-instate Mr Pieter Marchant as the licensee" to use the words of Mr Brunton's letter of 25 June 1999. Since the consequence of this act was to put an end to the licences of the Company it must be a cancellation of the licences. The letter notified the Company of a decision to cancel the licences within s.128 of the Act. Such a cancellation is reviewable in this Tribunal pursuant to s.285(l) of the Act.

59. It was argued that the cancellations could not fall within s.128 because they were outside its scope (see s.125). I do not think a cancellation will cease to be reviewable because it is argued to be outside the power to cancel.

60. The second decision is the decision of the Authority, communicated to the Company by Mr Brunton's letter of 19 July 1999, not to "adjust the register to reflect GB Radio (Australia) Pty Ltd as the licence holders" to use the words of the Company's letter of 7 July 1999. That was a refusal to correct the Register under s.153 of the Act. Such a decision is reviewable in this Tribunal pursuant to s.285(o) of the Act.

61. Section 292 of the Act confers actual power to review upon this Tribunal where the Authority has affirmed or varied the original decision under s.289. Section 288 provides for application to be made for internal review of decisions of the kind referred to in s.285. The application must be made within 28 days. Characteristically the section provides that the application must be in a form approved by the Authority. However, there is no evidence before me of any approved form. Section 289 requires the Authority to reconsider the decision.

62. It seems to me that the letter from the Company dated 7 July was an application for reconsideration of the first decision and the Authority's letter of 19 July was a decision to affirm that decision. The applicant's solicitors' letter of 6 August 1999 (T78) was an application for reconsideration of both decisions and the Authority's reply dated 19 August 1999 was a decision to affirm both decisions. The Authority's attempt by that letter to preclude review in this Tribunal by a narrow characterisation of what it had done wrongly stated the position and is regrettable.

63. Contrary to the submissions put to me by the joined party I find that the steps for consideration of a decision set out in ss.288-292 were carried out in the present case.

64. I propose to set aside the decision "to re-instate Mr Pieter Marchant as the licensee." I will also set aside the decision refusing to "adjust the register to reflect GB Radio (Australia) Pty Ltd as the license holders." The Register must be corrected. Licences reflecting this decision and showing GB Radio (Australia) Pty Ltd as the licensee of each of the licences are to be issued with the same expiry dates as the licences now have. I note that four of the original licences (license numbers 1151390 as issued on 6 May 2002, 1151299 as issued on 21 May 2002, 1130395 as issued on 16 January 2002, and 1130396 as issued on 6 May 2002, being the narrowcasting licenses and two of the narrowband licenses) are exhibits in the Tribunal.

I certify that the 66 preceding paragraphs are a true copy of the reasons for the decision herein of Justice Downes.

Signed: .....................................................................................

Counsel for the Applicant Mr M Dreyfuss QC and with him Mr S O'Bryan

Counsel for the Respondent Mr K Bell QC and with him Mr E G de Zilwa

Solicitor for the Respondent Australian Government Solicitor

Solicitor for the Joined Party John C. De Kever & Associates

GB Radio Australia P/L and Australian Communications Authority and Anor [2002] AATA 919 (24 September 2002)

At a glance

Court

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Judgment (126 paragraphs)

GB Radio Australia P/L and Australian Communications Authority and Anor [2002] AATA 919 (24 September 2002)

Legislation Cited (1)

Cases Cited (9)