Sunshine Coast Broadcasters Pty Ltd v The Australian Communications and Media Authority

REASONS FOR JUDGMENT 1 On 2 November 2012, the Court made substantive orders in this matter and published reasons for judgment: see Sunshine Coast Broadcasters Pty Ltd v The Australian Communications and Media Authority [2012] FCA 1205 ("the primary judgment"). The Court made no order for costs but made provision for the parties to file submissions as to costs. 2 The parties subsequently filed their costs submissions, in which they indicated the scope of their disagreement about the appropriate costs orders. These reasons are concerned with the question of costs. 3 The applicants seek the following orders: (a) the ACMA pay two-thirds of the applicants' costs incurred in preparing and filing their submissions filed on 20 April 2012 and 16 May 2012; and (b) the applicants otherwise pay the ACMA's costs of the proceeding as between party and party. The applicants also propose an alternative form of order that: (a) the applicants pay the ACMA's costs of the proceeding up to 28 March 2012 (being the last day of trial) as between party and party; and (b) there be no order as to the costs of the proceeding incurred on or after 29 March 2012. 4 The respondent, the Australian Communications and Media Authority ("ACMA") takes a different position: it seeks an order that the applicants pay its costs of and incidental to the proceeding, on a party and party basis. 5 The ACMA succeeded in defending the application. The Court dismissed the application, noting (at [160]) that "none of the grounds of review advanced by the applicants have been made out". Ordinarily, a successful party is entitled to an award of costs in its favour: see Oshlack v Richmond River Council (1998) 193 CLR 72 at 97 [67] (McHugh J) and 120-122 [134] (Kirby J); Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at 234 [11] (Black CJ and French J). Of course, there is no hard and fast rule: the disposition of costs is ultimately in the discretion of the court; and a successful party may be denied all or part of its costs because of some aspect of its conduct of the proceeding: Ruddock v Vadarlis (No 2) at 236 [15]. 6 The applicants argued that a departure from the usual position was justified in relation to the preparation and filing, with leave, of post-hearing submissions. The applicants contended that these submissions "were made necessary … by reason of the ACMA's late articulation of its case as to the statutory source of the function that it exercised in making the decision". 7 For the reasons stated below, I would not depart from the ordinary rule that the successful party is entitled to its costs. Put simply, considered in the context of the case, the ACMA's late reference to ss 10(1)(s) and 12 of the Australian Communications and Media Authority Act 2005 (Cth) ("the ACMA Act") is less significant than the applicants contend and was not conduct of a kind that should deprive the ACMA of its costs. 8 I have already accepted that, in making the challenged decision on 25 August 2011, the ACMA proceeded on the basis that its task was authorised by s 26 of the Broadcasting Services Act 1992 (Cth) ("BS Act"): primary judgment at [142]. In written submissions filed before the March hearing, the ACMA submitted that the challenged decision was preliminary and incidental to its functions under s 26 of the BS Act and not the performance of a function under s 26, as contemplated by s 27(1) of that Act. This remained the substance of the ACMA's defence throughout, although the ACMA did not identify ss 10(1)(s) and 12 of the ACMA Act as the specific statutory source of its capacity to make the challenged decision until 28 March 2012. This was the second day of the two-day hearing. Sections 10(1)(s) and 12 of the ACMA Act are set out in the primary judgment at [49]: pursuant to s 10(1)(s), the ACMA's functions include doing "anything incidental to or conducive to the performance of" functions conferred on the ACMA by the BS Act. The identification of ss 10(1)(s) and 12 did not substantially change the character of the ACMA's argument in defence. Rather, ss 10(1)(s) and 12 provided an express, instead of implicit, statutory basis for the challenged decision: primary judgment at [135]. 9 Further, I would not regard the identification of s 10(1)(s) of the ACMA Act as "central to the disposition of the principal grounds of review", as the applicants claimed in their written submissions of 9 November 2012. This proposition is incorrect as the first sentence of paragraph [95] of the primary judgment and the reasons that preceded that sentence make clear. As the primary judgment stated at [135], the ACMA's "late reference" to ss 10 and 12 of the ACMA Act as the "express statutory source of [its] function or power to receive, consider and decide" on the applicants' request for variation to the relevant Licence Area Plan "did not mean that the applicants were required to meet a wholly different case from that which they came to meet": primary judgment at [135]. 10 The applicants also submitted that the identification of s 10(1)(s) of the ACMA Act had two consequences: first, the ACMA no longer pressed its notice of objection to competency and its arguments against the grant of remedies under s 39B of the Judiciary Act 1903 (Cth); and secondly, the applicants filed further written submissions, with leave. The applicants noted that the ACMA's pre-trial written submissions pressed the competency objection. Allowing for the fact that their post-trial submissions also dealt with their application to add additional review grounds, the applicants' position was in effect that about two-thirds of the costs incurred by them in the post-hearing phase were referable to the s 10(1)(s) point, which costs would not have been incurred had the ACMA identified the provision before the trial. 11 There are numerous responses that might be made to the applicants' submissions. 12 Sections 10(1)(s) and 12 of the ACMA Act would have been readily ascertainable at any time by the parties' representatives on both sides of the record, although their significance might have been contested. This was not a case in which a party made a late disclosure of a matter that could not have been known to its opponents beforehand. Had the ACMA identified and relied on these provisions prior to the hearing, the applicants would nonetheless have been required to address them, although at an earlier time. Further, as already noted, reference to ss 10(1)(s) and 12 of the ACMA Act elucidated the ACMA's case, but did not in essence change it. 13 The concession made by senior counsel for the ACMA was in substance that the ACMA's notice of objection to competency would not be pressed if the Court accepted the ACMA's contention that the challenged decision was made under the ACMA Act, rather than under s 26(2) of the BS Act. That is, this concession was necessarily conditional on that characterisation of the function being accepted by the Court: primary judgment at [41]-[42]. Given the Court's acceptance of the ACMA's submission, it was in these circumstances that the Court found it unnecessary to rule on the notice of objection to competency and did not do so: primary judgment at [3], [157]. Given the way in which the applicants framed their case, it cannot be supposed that the notice of objection to competency was unreasonably maintained: compare primary judgment at [65]. This consideration does not advance the applicants' case on costs. 14 The Court did not consider the availability of remedies in s 39B of the Judiciary Act 1903 (Cth) or the Administrative Decisions (Judicial Review) Act 1977 (Cth) because no ground of review was made out: primary judgment at [158]. The ACMA's submissions on relief would have been relevant had the Court reached different conclusions with respect to the applicants' case. This consideration also does not advance the applicants' case on costs. 15 For the above reasons, scrutiny of the applicants' submissions provides insufficient justification for departing from the ordinary rule with respect to costs. As already noted, the ACMA has been wholly successful and would for that reason ordinarily be entitled to its costs. 16 There are other lesser considerations that also militate against the applicants on the question of costs. The applicants' conduct of their own case discloses a significant want of efficiency on their part. The Court has already noted that the applicants' submissions "altered over time": primary judgment at [25]. Whilst there were also changes in the ACMA's submissions, "these were less dramatic than those made by the applicants": primary judgment at [35]. 17 In their originating application, the applicants raised a number of grounds for review, but did not address them all in subsequent written submissions. In submissions filed on 24 February 2012, the ACMA fairly noted that various grounds - grounds 2(b)-(d), 3(c), 4(b) and 7 - appeared "not to be pressed". This led the applicants to assert, in their submissions of 16 March 2012, that: contrary to the suggestions [by the ACMA] the applicants note (for the avoidance of doubt) that they have not abandoned any of the grounds of review specified in the originating process. At the hearing, however, the applicants abandoned a number of grounds, including grounds 2(b)-(d), 3(b) and 7(b): primary judgment at [23]. The applicants abandoned further grounds - grounds 5(c)-(d) and 6 - at the conclusion of the hearing: primary judgment at [23]. 18 The Court concluded that the applicants' new grounds, as proposed in their post-trial submissions, were not fairly arguable and refused leave to rely on them: primary judgment at [156]. 19 The Court also noted, in its primary judgment at [107], that there was a "noticeable absence of written or oral submissions" advanced by the applicants in support of ground 7 - the unreasonableness ground. The primary judgment noted that the unreasonableness ground was "in substance an alternative formulation" of ground 6, the "no evidence" ground, and "received little independent analysis": primary judgment at [108]. Notwithstanding this lack of analysis, the response to the unreasonableness ground required detailed consideration of alleged factual mistakes on the ACMA's part: compare primary judgment [109]-[121]. 20 For the above reasons, in the circumstances of this case, I would order that the applicants pay the respondent's costs of and incidental to the proceeding, on a party and party basis. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.