Time - computation of time - s.36 Acts Interpretation Act 1901.

for the applicant: Mr. M. Dempsey instructed by

Allen Allen and Hemsley

Solicitors for the Miss R. Scheikowski

first respondent: Australian Government:

Solicitor)

Counsel and solicitors Mr. F.G. Beaumont QC and

for the second respondent: Mr. L.T. Grey instructed by

Blake Dawson Waldron

1. Upon the applicant filing in the Registry within seven days of the making of these orders an undertaking under its common seal in the form described in the schedule, extend the time within which the application for an order of review may be lodged with the Registry up to and including 30 January 1990.

2. Order that the applicant pay the costs of the first respondent on a submitting basis; otherwise make no order for costs.

3. Order that the proceedings be transferred to the Northern Territory District Registry.

An undertaking by the applicant to pay to the second respondent, in the event that the application for an order of review is dismissed, such compensation (if any) as the Court thinks just, in such manner as the Court directs.

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

In August 1988, acting pursuant to s.82 of the Broadcasting Act 1942, the Minister for Transport and Communications invited applications for, or written submissions related to, the grant of a "Commercial FM Radio Licence for Darwin". The notice published by the Minister indicated the service area of the licence proposed and outlined the technical conditions proposed to be included in the licence warrant. Pursuant to s.82AA(1)(b) and (d) of the Broadcasting Act, the Minister gave notice that the amount of the fee that would be payable under s.6(1A) of the Radio Licence Fees Act 1964 on the grant of the proposed licence would be $1,025,497.

2. In November 1988, Darwin FM Limited and the second respondent, Northern Territory FM Ltd., which operates station 8DN, each applied for the licence. In 1989, the first respondent, the Australian Broadcasting Tribunal ("the Tribunal") conducted an inquiry into the grant of the licence. The parties appearing at the inquiry were the two applicants for the licence, together with the applicant in these proceedings, Darwin Broadcasters Pty. Ltd., the holder of a licence for a commercial AM radio licence for Darwin.

3. By letter dated 1 December 1989, the Tribunal gave Northern Territory FM notice in writing that -

"the . . . licence is available to it. In accordance with

s.83A(10) of the . . . (Act) . . . . , the Tribunal will grant

the licence to (Northern Territory FM) upon payment of

the establishment fee before the end of the

establishment period . . . . "

The letter was received by the solicitor for Northern Territory FM on 1 December. Shortly thereafter, The Tribunal published a written report bearing date 29 November 1989, giving reasons for its decision to grant the licence to Northern Territory FM for a period of five years. In its report, the Tribunal stated that the licence would be granted after the specifications applicable had been determined by the Minister.

4. By letter dated 25 January 1990, Northern Territory FM wrote to the Tribunal forwarding its cheque in the sum of $1,025,497, being the establishment fee payable. The cheque was received by the Tribunal on 29 January. On that date, the Tribunal issued a receipt for the amount. However, the formal grant of the licence has not yet occurred.

5. On 29 January, a solicitor acting for Darwin Broadcasters attended at the New South Wales District Registry of the Court and lodged the application for an order of review in this matter, affidavits in support of the application, together with a notice of motion for an order for the extension of the time in which the application for an order of review may be lodged with the Registry. On 30 January, an officer in the Registry informed the solicitor that the documents which had been lodged had been processed in the Registry and were available for collection. The documents were collected on 30 January and later served. The first document, entitled "Application for an order of review", bears a Court stamp as follows:

"Filing fee not paid pending leave/extension of time

Date: 30/1/90."

6. The application, signed by the solicitor for Darwin Broadcasters, is dated 29 January. In the application, a claim is made for an order that the Tribunal's decision be set aside and the matter remitted to the Tribunal "to be concluded according to law". The application bears a note of an appointment for a directions hearing on 16 February 1990. The note of that appointment, dated 30 January, is under the seal of the Court, New South Wales Registry. The notice of motion, signed by the solicitor for Darwin Broadcasters and dated 29 January, was made returnable by the Registry for 16 February.

7. In order to understand the respective contentions of the parties, it is necessary to refer to the legislative contexts in which the present dispute arises.

The manner of making an application under the AD(JR) Act

8. By s.11 of the Administrative Decisions (Judicial Review) Act 1977 (the "AD(JR) Act"), the manner of making an application to the Court for an order of review is specified. By s.11(1)(c), the application shall be lodged with a Registry of the Court and, in the case of an application in relation to a decision that has been made and the terms of which were recorded in writing and set out in a document that was furnished to the applicant, shall be so lodged within the prescribed period or within such further time as the Court (whether before or after the prescribed period) allows. By s.11(3), the prescribed period for the purposes of s.11(1)(c) is the period commencing on the day on which the decision is made and ending on the twenty-eighth day after the day on which the document setting out the terms of the decision is furnished to the applicant.

The Broadcasting Act - procedures on the grant of a commercial licence

9. By s.83A(10) of the Broadcasting Act, these procedures are, relevantly, to be followed on the grant of a commercial licence: (1) The Tribunal shall give the eligible applicant who, in the opinion of the Tribunal, is the most suitable applicant, notice in writing that the licence is available to that applicant (s.83A(10)(a). (2) If the applicant tenders to the Commonwealth, before the end of the "relevant period", an amount equal to the amount of the establishment fee prescribed by the Radio Licence Fees Act the Tribunal shall grant the licence to that applicant (s.83A(10)(b)). (3) The "relevant period" means (a) the period of 60 days commencing on the day on which the notice under s.83A(10)(a) is given; or (b) if, before the end of that period, legal proceedings are commenced to challenge the giving of the notice or to prevent the granting of the licence to the applicant - the period of 30 days commencing on the day after the termination of all such proceedings (whether commenced before or after the end of the period referred to in para.(a)(s.83A(11)). (4) If an applicant who is given notice under s.83A(10)(a) does not tender to the Commonwealth, before the end of the relevant period, an amount equal to the amount of the establishment fee and there is at least one other eligible applicant, the application by the applicant given that notice shall be deemed to have been withdrawn (s.83A(10)(c)).

10. As has been noted, one of the definitions, in s.83A(11), of "relevant period" is the period of 60 days "commencing on the day on which the notice is given". A question arises as to how the period of 60 days is to be calculated. By s.36(1) of the Acts Interpretation Act 1901, it is provided that where in any Act any period of time, dating from a given day, act or event, is prescribed or allowed for any purpose, the time shall, unless the contrary intention appears, be reckoned exclusive of such day or of the day of such act or event. In the present case, the period is to commence "on" a certain day. It follows, in my opinion, that the Acts Interpretation Act does not apply here. In the first place, the Acts Interpretation Act applies where the period is to date "from" a given day, act or event. This can, I think, be distinguished from a provision that a period is to commence "on" that day. Even if that not be so, the question still remains whether s.83A(11) has indicated a "contrary intention" within the meaning of the Acts Interpretation Act. In my opinion, such an intention does appear from the choice of the language used in s.83A(11). By its terms, s.83A(11) should, I think, be taken to be indicating that the 60 day period was to commence on 1 December 1989 (being the date on which the statutory notice was given), and to expire at midnight between 29 and 30 January 1990 (see Forster v. Jododex Australia Pty. Limited [1972] HCA 61; (1972) 127 CLR 421 per Mason J. at p 453).

The specified grounds of opposition to the extension of time sought

11. In opposing the extension of time now sought, several substantial arguments, some in the nature of preliminary points, have been advanced on behalf of Northern Territory FM. It will be necessary to deal with them separately, although Darwin Broadcasters bears the general onus of demonstrating why the discretion to extend time should be granted in its favour.

The first ground of opposition: The application for extension of time should have been commenced in the form of an application and not by notice of motion

12. By O.4 r. 1(1) of the Federal Court rules, except as otherwise provided in the rules, all proceedings in the Court's original jurisdiction shall be commenced by filing an application. By O.19 r.1(1), any interlocutory or other application in any proceeding which has already been commenced in accordance with the rules, shall be made by notice of motion. By O.54 r.4, if a respondent to an application under the AD (JR) Act objects to the competency of the application, he shall, within 14 days after service upon him of the application, file and serve upon the other parties a notice of objection to competency. No notice of objection to competency has been filed by Northern Territory FM, although its counsel took the point orally on 16 February, being the date appointed for the first directions hearing.

13. In my opinion, for the reasons given by Northrop J. in Duff v. Freijah [1982] FCA 159; (1982) 43 ALR 479, it is appropriate that an application for final relief under the AD(JR) Act be commenced by an application seeking an order of review even if it is lodged after the 28 days prescribed by s.11(1)(c) has expired. It follows, in my opinion, that it was appropriate to seek the extension of time by notice of motion.

The second ground of opposition: There is no power to grant an extension of time for the lodgment of an application under the AD(JR) Act for an order of review after the expiration of the 60 day period referred to in s.83A(10) and (11) of the Broadcasting Act

14. As has been said, the 60 day period expired at midnight between 29 and 30 January. On 29 January, the documents were lodged in the Registry, although they were not noted as "filed" until 30 January. It seems that because steps had to be taken within the Registry, the documents were not filed until 30 January (see Angus Fire Armour Australia Pty. Ltd. v. Collector of Customs [1988] FCA 339; (1988) 19 FCR 477 per Northrop J. at p 487). Presumably proceedings were not "commenced" until that date.

15. Accepting, for the sake of the argument, that the proceedings were not "commenced" until after the expiration of the 60 day period, in my opinion, the provisions of s.83A(10) and (11) do not deprive the Court of its jurisdiction, under s.11(1)(c) of the AD(JR) Act, to extend the time in which an application for an order of review may be lodged. Of course, if there is delay, especially unreasonable delay, the Court will, ordinarily, take this into account as one of the relevant considerations to be taken into account in deciding whether the discretion to extend time under s.11(1)(c) of the AD(JR) Act should be exercised. I will return to this question later when I deal with discretion. But the present submission goes to a different question, namely the Court's jurisdiction under the AD(JR) Act or its power to extend time, not whether it should do so. In my view, s.83A(10) and (11) seek to lay down procedures to be followed, and the consequences of those procedures, in the grant of a licence under the Broadcasting Act. Sections 83A(10) and (11) do not, in my opinion, seek to say anything on the distinct question whether, at the expiration of the 60 day period, the Court loses its jurisdiction, or power, to extend time under the AD(JR) Act. This is a separate field of legislative activity which is left untouched by the time limits written into the Broadcasting Act.

The third ground of opposition: That the payment of the establishment fee deprived the Court of its jurisdiction to extend time under the AD(JR) Act

16. This is similar to the second ground of opposition and should be rejected for similar reasons. In particular, I reject the submission advanced on behalf of Northern Territory FM that, once the establishment fee was paid, there was no longer available any "decision" capable of review under the AD(JR) Act. In my opinion, there still is a reviewable "decision" and, in an appropriate case, the Court would have power under the AD(JR) Act to order that the decision be set aside and, consequentially, to order that the establishment fee be refunded.

The fourth ground of opposition: That it would be futile to grant the extension of time because the application for an order of review, even if in time, had no prospect of success

17. In Barrett v. Minister for Immigration, Full Federal Court, 21 July 1989, unreported, it was accepted that it is proper to take into account, in an appropriate case, whether or not the application for an order of review has any real chance of success. The Full Court added that this does not mean that the prospects of success must always be considered when determining whether to extend time under s.11(1)(c).

18. As I understand the argument, it is now put, on behalf of Northern Territory FM, that the claim for relief in the principal proceedings, if permitted to be propounded, would be frivolous and without any substance. For this reason, it is said, any extension of time would be futile.

19. In order to consider this contention, it will be necessary to refer to some of the detail of the case sought to be made in the principal proceedings.

20. The application for an order of review bearing date 29 January 1990 seeks to review the decision made by the Tribunal on 29 November 1989 to grant the licence. The application states that Darwin Broadcasters is a person aggrieved by the decision for the purpose of the AD(JR) Act because it was a party to the Tribunal's inquiry. The grounds stated in the application are as follows:

"The making of the decision was an improper exercise of

power conferred by the Act in that:

(a) the Tribunal failed to take into account relevant

considerations in the exercise of its powers.

PARTICULARS

(i) the Tribunal failed to take into account the fact

that the introduction of an FM station may force

the existing AM station into programming for the

18-39 demographic resulting in parallel

programming.

(ii) the Tribunal failed to take into account the

lower and medium range analysis of future revenue

potentials."

21. As has been noted, an order is sought that the Tribunal's decision be set aside and the matter remitted to the Tribunal to be concluded according to law.

22. By way of background to the claim made in the principal proceedings, reliance is placed upon the following introductory statements made in the Tribunal's report:

RADIO

2.7 According to Tribunal records, the incumbent commercial

AM service, 8DN, does not target a specific demographic,

but aims to meet the requirements of the total Darwin

radio audience and its format is adult

contemporary/talk/sport providing local and national

news. The national broadcaster now delivers FM services

exclusively: ABC National, 8ABC FM and 8DDD. The public

community station 8TOP FM broadcasts a wide range of

programs including multicultural, student, community,

race calls, music, aboriginal, talks and documentary

programs.

2.8 Given the number of local newspapers, the local

established television and radio services, the area is

served by a good mix of advertising outlets but without

a strong degree of specialisation in targeting

audiences/markets.

LEGISLATION ASPECTS

2.9 The grant of a broadcasting licence is governed by an

Act of the Commonwealth Parliament, The Broadcasting Act

1942 (referred to below as 'the Act') and by regulations

made under that Act. The scope of the issues covered by

inquiries such as this is not set by the Tribunal

itself. The Act makes rules about how inquiries are to

be conducted and lists the criteria the Tribunal may

take into account in reaching a decision. These

requirements are set out in Attachment A. As may be

seen from the attachment, the important elements to be

measured in coming to a decision, are:

the undertaking by the applicant to provide an

adequate and comprehensive service and to

encourage Australian creative resources in

connection with that service

the fitness and propriety of applicants to hold a

licence

the capability of complying with conditions of the

licence

the need for commercial viability of overlapping

services and other public interest considerations

which may suggest that a licence should not be

granted

the need to comply with relevant ownership and

control requirements.

COMMERCIAL VIABILITY

3.1 Section 83A of the Broadcasting Act states that the

Tribunal shall not refuse to grant a commercial licence

to a person unless it is required by subsections (2),

(3), (4), (5), (7), (9) or (10) to do so.

Subsection 83A provides for the Tribunal to refuse to

grant a commercial licence to a person if it appears to

the Tribunal, having regard to the following matters or

circumstances, that it is advisable in the public

interest to refuse to grant the licence to the person:

(a) The Tribunal is not satisfied that the person:

(i) is a fit and proper person to hold the

licence;

(ii) has the financial, technical and management

capabilities necessary to provide an adequate and

comprehensive service pursuant to the licence;

and

(iii) is otherwise capable of complying with the

conditions of the licence;

(a) if the licence's service area:

(i) is not a metropolitan service area; and

(ii) overlaps the service area of at least one

other commercial licence whose service area is

also not a metropolitan service area;

(iii) the need to avoid undue concentration of

influence, whether direct or indirect, on the

person and on the corporation or corporations

holding the other licence or licences;

(c) where the service area of the licence overlaps the

service area of another non-limited licence or

other non-limited licences - the need for the

commercial viability of the service or services

provided pursuant to the other licence or other

licences;

23. In support of the claim first particularised in the grounds stated in the application for an order of review, Darwin Broadcasters relies upon paras. 3.10, 3.64, 3.65, 3.66, 3.67 and 3.68 of the Tribunal's report as follows:

3.10 "Commercial viability" means the ability of a radio

service to survive commercially while effectively

operating in accordance with the conditions of its

licence and providing an adequate and comprehensive

service as required by the undertaking given under the

Act.

3.64 8DN's case relied on the expected impact of the new

entrant, and subsequent action they would take in order

to maximize their financial position and the

consequential effect of this action would have on the

overall quality of services to the population in the

service area:

8DN will move to change its format and frequency. It will continue to

undertake and to provide an adequate and comprehensive service, but it

will be a different service as has been described. It is a commercial

judgement which takes account of our obligations to the audience and to

the Broadcasting Act (transcript p 235).

3.65 The Tribunal is obliged to consider the likely

ramifications of change in program format since the

adequate and comprehensive nature of the services in the

D.S.A. are vital to the public interest. The commercial

failure of the incumbent and the successful applicant is

a substantial issue in this regard since this sequence

of events would also frustrate the intentions of the

National Radio Plan to establish and expand services.

3.66 Mr Milan clearly set out the incumbent's management

strategy in the event of the licence being granted:

In my mind . . . if an independent licence is granted 8DN has to

convert to the FM band. The format will be altered as a result with the

aim to being the number one station in the most lucrative

demographics . . . Now in all honesty, it is questionable whether the

to 39 demographic are the purchasers of our society . . . But what is

beyond question is national advertisers and their agencies still consid

the 18-39 demographic the primary purchasers, the people that are most

likely to change the decision of what product to purchase, the idea bei

that if you can lock them in when they are young they will grow old wit

the brand. So regardless of whether or not they purchase more, the real

is that most national brands and their advertisers - agencies - target

that demographic (transcript pp 16-17).

3.67 In the event that 8DN changed format to target more

strongly for the 18-39 year olds, the incumbent has

advocated a 50/50% split as proposed by the Tribunal.

8DN admitted that in all likelihood it would experience

reductions in programming costs. Station manager, Jim

McNally specified: ". . . we would have to reduce

primarily . . . the level of staffing to start with and we

would do that by moving towards satellite delivered

programs" (transcript p 33).

3.68 In the Tribunal's view, the outcome is dependent on a

number of factors and conditions prevailing in this

particular market. For example, the range of

alternatives, the distribution of listener preferences

and the number of competitors are important

considerations. The most likely course that would be

taken by the incumbent is a redefining of program format

with a shift in music content in order to generate

savings for re-allocation to sales promotion or to

address the shared radio revenue situation.

Nevertheless, the fact remains that until such time as

an opportunity arises for conversion, an AM station even

with the same program format will probably struggle to

maintain equal share of the 18-39 age group due to the

superiority of FM sound as well as the 18-39 group's

demand for particular music types and greater musical

content. The parallel programming argument is perhaps

more relevant to a large market where a number of

commercial stations are operating.

24. Darwin Broadcasters seeks, in particular, to challenge the statement made in the last sentence of para.3.68 that:

"The parallel programming argument is perhaps more

relevant to a large market where a number of commercial

stations are operating."

25. It is submitted on behalf of Darwin Broadcasters that its argument before the Tribunal "was dealt, in one sentence effectively, without any real reasoning as to what was required". Reliance is placed upon the following observations of the Full Federal Court in The Minister v. Pashamforoosh, unreported, 28 June 1989:

"Federal legislation emphasises the need for reasoned

decision-making. See eg. the FOI Act, s.23 of the ADJR

Act, ss.28(1) and 43(2B) of the Administrative Appeals

Tribunal Act 1975 (Cth). Thus, decisions may be set

aside because, being insufficiently supported by

reason, they appear to be an improper exercise of the

power conferred or arbitrary or because there was no

evidence or other material sufficient to justify the

making of the decision or the decision was so

unreasonable that no reasonable person could have so

exercised the power. The making of, or failure to

make, a particular finding of fact in the course of the

reasoning process may equally be attacked on any such

ground. The taking into account of a fact found

unreasonably or the failure to take into account a fact

that a reasonable decision-maker would have found and

taken into account provides a ground of review under

ss.5(1)(e) and 5(2)(a) and (b) of the ADJR Act."

26. Accepting this as a statement of principle in this area, the question remains of its potential application in the principal proceedings in this case. There is considerable force in the submission strongly put on behalf of Northern Territory FM that the necessary detail of the grounds of Darwin Broadcaster's challenge is lacking, or at least not evident. But I am not persuaded that Darwin Broadcaster's case on this branch of its claim in the principal proceedings is hopeless. It is not part of my present function to endeavour to make an assessment of the prospects of the success or otherwise of that claim. It will suffice to say that there appears to be a real question to be litigated in the principal proceedings.

27. Similar comments may be made concerning the grounds stated in the application for an order of review secondly particularised.

The fifth ground of opposition: Darwin Broadcasters has failed to explain properly, or at all, its delay in bringing these proceedings

28. It is the clear policy of s.83A(10) and (11) of the Broadcasting Act that proceedings of the present kind be instituted and dealt with expeditiously. (It may be noted, in passing, that on the return date of the present application, 16 February 1990, the Court offered a hearing of this application and, if an extension were granted, a hearing of the principal proceedings to follow immediately thereafter on 8 and 9 March 1990 in Darwin. Darwin Broadcasters then accepted the offer but Northern Territory FM did not.) It follows that unreasonable delay in the institution of the proceedings can be a reason for refusing to exercise the discretion to extend.

29. The explanation of delay offered by Darwin Broadcasters is briefly expressed. In his affidavit, Mr. R.J. Perry, the executive responsible, said that Darwin Broadcasters is a sub-subsidiary of Bond Media Limited and then offers this explanation why this litigation was not commenced earlier:

"4. The current situation regarding Bond Media and

the Bond group of companies is well known. The

vast majority of executive time has been devoted

to the Bond inquiry, proceedings involving the

Australian Broadcasting Tribunal and the

financial affairs of the Bond Group.

5. The Tribunal's decision would in normal

circumstances have been discussed at a December

Board of Management meeting. Because of the

issues referred to above and the absence of some

executives a December Board of Management meeting

was not held. The Board of Management meeting to

discuss the Australian Broadcasting Tribunal's

Decision was not held until Wednesday, 24 January

1990 at which time it was decided to proceed with

an Application for an Order to Review the

Tribunal's decision."

30. Given the relatively short period of time which elapsed between the giving by the Tribunal of notice of its decision (1 December 1989) and the lodgment of initiating process (29 January 1990), the explanation of delay offered by Mr. Perry is, in my opinion, a reasonable one.

The sixth ground of opposition: In the exercise of the Court's discretion, the application for extension of time should be refused because of prejudice to Northern Territory FM

31. In this connection, Northern Territory FM relies on the circumstances, first, that it has paid over the establishment fee and, pending the determination of the principal proceedings, it has lost, and will continue to lose, notionally at least, the interest that could have been earned on that amount if invested; and, secondly, that its plans to become operational will be delayed pending the resolution of these proceedings. There is considerable force in this submission. Nonetheless, in my view, any prejudice arising from the grant of an extension of time can be mitigated by my making the grant of an extension conditional upon the giving by Darwin Broadcasters of the usual undertaking as to damages in favour of Northern Territory FM (cf. Blue Town Investments Ltd. v. Higgs and Hill plc, the Times Law Reports, 19 January 1990).

Should the discretion to extend time conferred by s.11(1)(c) of the AD(JR) Act be granted?

32. Although it was necessary to deal separately with the specific grounds of objection raised by Northern Territory FM, the ultimate question for decision, as has been noted, is whether the discretion given by s.11(1)(c) of the AD(JR) Act should now be exercised. The onus is upon Darwin Broadcasters to show that it should be exercised, and whether it should be exercised will depend upon all the circumstances of the case.

33. In my opinion, the relatively short delay in bringing the principal proceedings has been adequately explained; the risk of prejudice to Northern Territory FM has been dealt with by the undertaking as to damages; and there appears to be a real question to be litigated in the principal proceedings. In those circumstances, it is appropriate that the extension should be granted.

34. In all the circumstances, there should be no order for costs, except that the Tribunal should receive its costs on a submitting basis.

1. Upon the applicant filing in the Registry within

seven days of the making of these orders an

undertaking under its common seal in the form

described in the schedule, extend the time within

which the application for an order of review may

be lodged with the Registry up to and including

30 January 1990.

2. Order that the applicant pay the costs of the

first respondent on a submitting basis; otherwise

make no order for costs.

3. Order that the proceedings be transferred to the

Northern Territory District Registry.

An undertaking by the applicant to pay to the

second respondent, in the event that the

application for an order of review is dismissed,

such compensation (if any) as the Court thinks

just, in such manner as the Court directs.