NEWCASTLE STEREO PTY LIMITED v AUSTRALIAN BROADCASTING

Federal Court of Australia|1987-11-03|Before: Wilcox J

There are applications before the Court involving the matter of costs incurred in connection with four separate

proceedings which have recently been considered by me. They

The first pair of cases were applications made on behalf of two unsuccessful applicants for an FM commercial radio licence to serve the Newcastle district, namely Our Town FM Pty Limited and Newcastle Stereo Radio Pty Limited, being proceedings G.183 of 1987 and G.206 of 1987 respectively. In those proceedings the two applicants attacked the decision of the Australian Broadcasting Tribunal to award the licence to the second respondent, Newcastle FM Pty Limited. A number of grounds of attack were argued. In the result I upheld one only of the grounds and, on 4 September 1987, I made orders, the effect of which was to set aside the decision of the Tribunal and to refer the matter back to the Tribunal to be dealt with according to law. The successful ground of challenge to the Tribunal's decision was that, in making that decision, it had failed to comply with the requirements of

S.25B of the Broadcasting Act 1942 in relation to its report.

When I made the orders I had not had the benefit of any detailed submissions as to costs. In the hope that I might prevent further costs being incurred by the parties in arguing costs, I indicated a tentative view, the effect of which was that the second respondent, Newcastle FM, should pay to each of the applicants their costs of the respective proceedings. I indicated that I thought that there ought to

be no order for costs either in favour of or against the

Tribunal, whose role had been confined to putting certain factual material before the Court in regard to the making of the decision and otherwise abiding by such order as the Court might make. The second respondent, by contrast, had appeared by senior and junior coufisel to defend the Tribunal's decision

in relation to each of the points argued by each of the

In the event, my hope of avoiding further applications in regard to the matter of costs has been disappointed. The second respondent, as it was entitled to do, has applied by Notice of Motion for an order vacating the order for costs which I had previously made; but the operation of which I had suspended for 14 days and thereafter if any Notice of Motion was filed pursuant to the leave which I had granted. The second respondent today seeks that there be no order for costs in regard to the initial two proceedings. The two applicants to those proceedings, not

unnaturally, seek to maintain the order previously made by me.

The second pair of proceedings arose out of differences between the parties as to the course which ought to be taken by the Tribunal in regard to further consideration of the matter. Once again, Applications were filed by each of Our Town FM and Newcastle Stereo Radio, the respective proceedings being G.471 of 1987 and G.492 of 1987. On the hearing of those matters the Tribunal appeared by counsel, but counsel adopted the position of simply informing the Court of certain matters and otherwise submitting to such orders as might be made. No attempt was made to defend the position taken by the Tribunal in its exchanges with the two applicants

Newcastle FM appeared once again by senior and junior counsel, but, on this occasion, it did not seek to defend each of the positions taken by the Tribunal in those exchanges. Counsel did submit that the Tribunal was correct in certain respects, namely in contending that it was not an automatic result of further consideration that there would be cross-examination, or even a further oral hearing. Counsel did not seek to defend the position taken by the Tribunal that there should be no consideration of new circumstances which had arisen since the date of the earlier report. I am simplifying the position somewhat, but it is enough to say that the submissions put on behalf of Newcastle FM in regard to the second pair of Applications is not distinguishable from the view which I ultimately took, and which is reflected in the judgment which I handed down on 23 October 1987. At that time I made no order for costs, leaving the parties to apply

Today each of the applicants seeks an order for costs of 1ts second Application. They have each submitted that, as they succeeded in that Application, there ought to be an order for costs against one or other of the respondents, leaving it

to the Court to determine where the burden should fall.

One matter which is common to all of the proceedings, and which I think warrants some comment, is the position of the Australian Broadcasting Tribunal. The Tribunal is, of course, set up under a statute to carry out certain public functions; including the determination of applications for new licences. In the course of carrying out those functions, it necessarily has to make decisions which are likely to have an adverse impact upon particular applicants for a licence or upon existing licensees. Given the nature of the commercial interests involved, 1t is predictable that parties who are disappointed by a ruling or decision of the Tribunal will seek review of that decision under the Administrative Decisions

(Judicial Review) Act 1977. The recent spate of decisions in

this Court bear ample testimony to the willingness of parties

At one time it was considered to be a proper course for the Tribunal actively to participate in the argument upon judicial review of its rulings and decisions. However, in Rv Australian Broadcasting Tribunal; ex parte Hardiman (1980)

144 CLR 13 at pp. 35-36, 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 Tribundal'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

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 1s reversed on appeal,

that 1t was, in one sense, the cause of the litigation

In connection with the first pair of cases, the situation 1s not unlike that which arises 1n a number of contexts. There were three parties, each of whom had a private commercial interest to protect or to maintain. The two applicants were seeking to upset a decision of the Tribunal to award the licence to Newcastle FM. Newcastle FM had an interest to protect that decision. As I have indicated, the parties took antagonistic positions and argued a number of grounds and, in the end, I held that the applicants were entitled to succeed. Prima facie, I think that the applicants are entitled to their costs and that the costs should be paid by the party who unsuccessfully resisted the relief that they sought. It was for this reason that I made, on 4 September, the order to which I have already

However, it is put on behalf of Newcastle FM today that there are two reasons why this order should not be maintained. The first reason advanced is that, although the applicants succeeded in obtaining the relief which they sought, they failed on a number of grounds, which constituted issues in the case. Secondly, it is pointed out that the applicants were separately represented in two separate

proceedings. There is some substance in both of these

matters. I do not think that they are such that I should decline to make any order in favour of the applicants. But they do cause me to come to the view that I should make an order in each case for payment only of one half of the applicants' costs. The éffect will be to require the second respondent to pay something like the equivalent of the costs which would have been payable had there only been one

I have two reasons for coming to the view that there should be only a limited order. The first reason is that, although the applicants succeeded, they were unsuccessful on several grounds. The hearing occupied two days. It 1s difficult to be precise, because some of the other matters would have had to be referred to in any event in relation to the ground upon which the applicants were successful, but my strong impression is that the hearing could have been completed in one day if the applicants had confined their attack to the ground upon which they were successful. So the hearing was prolonged because of issues which they raised and

Secondly, I think that some consideration needs to be given to the situation which occurs where there are a number of parties who seek to attack a Tribunal decision. The Tribunal decision was either valid in law or not. Any person who was a "person aggrieved", within the meaning of that term

in the Administrative Decisions (Judicial Review) Act, could

have taken proceedings to obtain an order setting aside the

Tribunal's decision. Any one of the unsuccessful applicants

for a licence would have had standing. It is entirely natural that a particular licence applicant should wish to take proceedings in its own name and to be represented by its own solicitors and counsel. However, I think that situations will arise where consideration needs to be given to the selection of a firm of solicitors and counsel to represent all of the unsuccessful licence applicants who may wish to challenge a

Tribunal decision. In this case there were six licence

applicants. As it happened, only two of the five unsuccessful applicants chose to seek judicial review. However, it might easily have happened that all five sought review. If the challenge succeeded on one ground, which could have been put by one counsel on behalf of them all, it would seem to be most unjust to saddle the party who had succeeded before the Tribunal, and who had unsuccessfully resisted the argument relating to that ground, with five sets of costs. As I understand the position, there are licence applications pending in which the number of applicants is many more than the six applicants in the present case. It would be a serious state of affairs if the belief were to spread abroad that any

disappointed applicant could come along and be separately

represented and, if its application succeeded, obtain an order for costs in its own name, which might be duplicated many

times over as against the party who was unsuccessful in this

I should say that I do not put a great deal of weight on this factor in this case; firstly, because there are only

two applicants and not five or a greater number such as I have

mentioned; and, secondly, I think that the stronger reason for a reduced order for costs in this case is the fact that there were a number of grounds which were unsuccessful and which prolonged the hearing time. However, I do take into account, to some small eXtent, that second matter in reaching

the view that the appropriate course is as I have said.

Accordingly, the order that I propose to make in each of the matters G.183 of 1987 and G.206 of 1987 is as follows: I vacate order 3 made on 4 September 1987 and in lieu thereof I order that the second reapondent pay to the applicant one

In relation to the second pair of Applications, I have reached the view that there ought to be no order for costs in favour of any party. It is true that each of the applicants did obtain relief. It is equally true that the relief obtained by each fell short of that which was sought, both in the relevant Application and in argument at the hearing. As I have said, in my view, it would not normally be

an appropriate course to require the Tribunal to pay the costs

of an attack upon its decision. And in these cases, unlike the first pair of cases, Newcastle FM did not seek to defend that which the Court found to be indefensible. It would be unjust to require that respondent to pay the costs. Indeed, that respondent is as much a victim as anybody else of the confusion which occurred and the errors into which the Tribunal fell in determining the proper course to follow. I think that the more appropriate way of looking at the costs of the second pair of Applications is to treat them as being part of the overall costs which these parties have elected to incur in pursuing their applications for the radio licence. Accordingly, I make no order for costs in respect of either of

I certify this and the ten (10) preceding pages to be a true copy of

the Reasons for Judgment of his Honour Justice Wilcox.

NSW G.206 and NSW G.492 of 1987 Counsel for the Applicant Ms C F Weigall

NSW G.183, NSW G.206, NSW G.471 and NSW G.492 of 1987

Solicitors for the First Respondent: Counsel for the Second

At a glance

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Judgment (59 paragraphs)

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