TVW Enterprises Ltd v. Duffy, M.J. & Ors [1985] FCA 109

TVW ENTERPRISES LIMITED v. MICHAEL JOHN DUFFY, AUSTRALIAN

BROADCASTING TRIBUNAL, PERTH TELEVISION UIMITED, WEST COAST TELECASTERS LIMITED, WESTERN TELEVISION LIMITED

WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION

PERTH TELEVISION LIMITED, WEST COAST TELECASTERS LIMITED, WESTERN TELEVISION LIMITED

The Court has before it a motion by the first respondent ("the Minister") for an order for the statement of a case and questions for decision pursuant to Order 29 Rule 2 of the Federal Court Rules. As originally framed the motion sought an exercise of power under sub-s.25(6) of the Federal Court of Australia Act 1976 which empowers a Judge to state a case or reserve a question for the consideration of a Full Court. Hut there was agreement by

counsel for all parties concerned that if a case were stated it

should be for the consideration of a Judge at first instance; the

provisions of the Broadcasting and Television Act 1942. The

inquiry relates to the grant of a further commercial television licence for the Perth metropolitan area. The inquiry has been running for some weeks in Perth and is expected to continue for Many more weeks. The applicant, TVW Enterprises Limited ("TVW"), opposes the grant of an additional licence. The first respondent, Michael John Duffy, is the minister responsible for the administration of the Act. The second respondent, Australian Broadcasting Tribunal ("the Tribunal"), is the hady charged with the conduct of the inquiry. The third respondents, Perth Television Limited ("Perth Television"), West Coast Telecasters Limited ("West Coast Telecasters") and Western Television Limited

("Western Television"), each seek the grant of any additional

Section 82 of the Act requires that before a licence is granted (otherwise than by way of renewal) the Minister shail publish in the Government Gazette and in a newspaper or newspapers circulating in the area concerned, a notice in accordance with the section. TVW claims that the notice issued by the Minister on 7 May 1984 in purported compliance with sub-s.82(1) was invalid and void and that the inquiry being conducted by the Tribunal is, as a consequence, also invalid and void. The basis of this contention 1s that sub-s.111C(1) of the Act imposes certain responsibilities

on the Minister and sub-s.111C(2) provides that in discharging

those responsibilities the Minister shall consult representatives of television stations in relation to matters affecting those stations. TVW contends that the effect of s.111C 1s to require the Minister to consult with it before publishing the notice. It

further contends that there was no such consultation.

By his defence the Minister denies that there was any

obligation ta consult with TVW before issuing the notice

instituting the inquiry by the Tribunal. In addition the Minister "denies that he failed or neglected to discharge such obligation" (defence, para. 12). Such an equivocal pleading may well attract attention by reason of Order 11 Rule 10 or Rule 13(3) of the Rules. That matter is not presently before the Court and I mention it only because in considering the usefulness of a case stated it must be kept in mind that the Minister has not asserted

positively that he did in fact consult with TVW Enterprises.

It is conceded by counsel for TVW that if the Minister had no obligation to consult with it before issuing the notice, there is no other basis upon which the inquiry is said to he invalid and void. It follows therefore that if there was no such obligation the application must be dismissed. If there was an

obligation to consult, questions of fact inevitably arise as to

whether and to what extent any consultation took place. Those

Despite some dicta to the contrary, I do not think it is the law that a preliminary issue should be ordered only when a

decision will be conclusive of the whole matter, whichever way it

is decided. See Carl Geiss Stiftung v. Herbert Smith & Co. £19691

1 Ch. 93 at 98; also Hampshire County Council v. Shonleigh Nominees Ltd. £19701 1 WOR 865 at 871. The position is as stated

by Romer L.J. in Everett v. Ribbands (19523 2 0B 198 at 206:

"Where you have a point of law which, if decided in one way, is going to be decisive of litigation, then advantage ought to be

taken of the facilities provided by the rules of court to have it disposed of at the close of pleadings, or very shortly after the close of pleadings".

On the other hand it is an unsatisfactory procedure to try an issue which involves dealing with the whole of the subject matter of an action without any evidence. Radstock Co-Operative & industrial Society Ltd. v. Norton-Radstock Urban District Council

Order 29 Rule 2 provides a useful procedure in certain

cases though its usefulness depends upon the obtaining of answers

which are likely to make a substantive hearing unnecessary, at least if the questions are answered ina particular way. The decision ultimately is one for the Court though naturally it will have regard to the attitude of the parties. In the present matter, though there was much debate about the particular questions that ought to be asked, there was consensus that the procedure might render a substantive hearing unnecessary. It is also a relevant consideration to weigh the time likely to be taken in the hearing of a preliminary issue and the availability of hearing dates for that purpose against the time amd expense of a

substantive hearing and the length of time likely to elapse before

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such a hearing will take place. This matter 15 at an early stage; defences have been filed and some directions given. If it goes to trial in the usual way, there 1s no doubt that discovery of documents will be an important consideration and I am told that, on the Minister's part, discovery will be extensive. No doubt interrogatories will be administered to the Minister and there may well be applications to the Court in relation to the pleadings. Thus the time taken and expense incurred in the conduct of a trial is likely to be considerable though I am not persuaded that the hearing itself will be overly lengthy. On the other hand the disposition of a case stated should not take long. Estimates by counsel of the hearing of such a preliminary issue ranged from two to four days. Four days seems a long time in which to debate issues which, though difficult, are fairly narrow in compass. It should be possible by directions e.g. that the parties submit written outlines of argument to confine the hearing to a couple of days but, even 1f a little more time is required, there is the prospect of saving much more time and expense. In the circumstances I am persuaded, albeit with some reservations, to Make an order for the statement of a case and questions for

I turn now to the form of the case, in particular the

facts upon which the questions are asked and are to be answered and the questions themselves. As well as the facts and questions contained in the Minister's motion, I have the benefit of comparable documents filed on behalf of TVW and Perth Television.

Counsel for the Minister said that he was prepared to accept the

questions as formulated by Perth Television. Counsel for TVW was

adamant that the questions formulated on hehalf of his client were more likely to produce useful answers than those prepared by the

I do not propose in these reasons to make a detailed comparison of the questions asked but I shall state briefly the considerations that have influenced me in formulating the questions to be the subject of an order of the Court. The questions asked are necessarily hypothetical in the sense that issues of fact remain to be determined. But facts have been agreed for the purpose of the case stated and it is desirable that the questions be framed with as much particularity as the agreed facts permit. The broad issue which the proposed procedure hopes to isolate is the obligation of the Minister to consult with TVW before issuing the notice that led to the inquiry. But the extent of the obligation should be spelt out with some particularity through the questions asked. This I have sought todo by incorporating some matters of detail from the formulation of TVW into the document prepared by Perth Television. The tlatter document also asks questions relating to the obligations of any person who was the minister at any relevant time. Counsel for TVW objected to the widening of the questions in this way because, as the pleadings stand, mo issue is raised as to the conduct of any minister who was a predecessor of the present incumbent and who might have been under an obligation to consult in regard to the matter the subject of the Tribunal's inguiry and who indeed might have satisfied some of the obligations which the statement of claim alleges the Minister failed to satisfy. But it would be

unfortunate if questions were confined to the first respondent by

name when the actions of his predecessors might prove material to

the claim made by the applicant. Hence I propose questions that

The minute of order attached to these reasons includes

I certify that this and the six preceding pages are a true copy of

the Reasons for Judgment herein of his Honour Mr. Justice Toohey

Questions referred for the consideration of the Court pursuant to the Order of the Honourable Mr. Justice Toohey dated 28 March 1985.

The facts below stated are agreed by the applicant and the respondents for the purposes only of and as the basis for the questions referred.

1. The applicant is and at all material times was a duly incorporated public company.

2. The applicant carries om business inter alia as the licensee pursuant to the Broadcasting and Television Act 1942 ("the Act") of the commercial television station in the Perth metropolitan area, TVW-7 (""TVW-7").

3. The first respondent is and was on 7 May, 1984 the

of the Commonwealth of Australia responsible for the administration of the Act. Prior to the appointment of the first respondent as such

Minister of the Crown others persons were similarly

The third respondents are duly incorporated companies which have lodged applications with the

television licence for the Perth metropolitan area.

On 7 May, 1984 the first respondent published a notice pursuant to sub-s.82(1) of the Act notifying interested persons that they might lodge with the Tribunal, inter alia, applications for the grant of a further commercial television licence for the Perth metropolitan area and environs. A true copy of the Notice is annexed hereto and marked with the

The introduction of a further commercial television licence for the Perth metropolitan area and

(b) materially affects TVW-7 to a degree greater than other television stations in Australia other than Channel STW-9 in Perth operated by one Swan Television and Radio Hroadcasters

Before publication of the notice referred to in para. 6 hereof, neither the first respondent nor any such minister consulted with the applicant in

The questions reserved for consideration by the Court are:

Was the first respondent under any obligation to consult with the applicant within the meaning of 5.1110(2)(a) of the Act prior to publication of the

notice; (b) about or concerning the development of television services in Australia by the

(c) about or concerning planning the development of broadcasting and television services in

(d)} about or concerning any matter affecting the applicant, or a specified class of television station including the applicant, to a greater extent or more particularly than television

Were such other ministers referred to in para. 3 of section A under any obligation to consult with the applicant within the meaning of s5.111C(2){a) of the Act in relation to any of the matters mentioned in para. 1 hereof in discharging their

If the answer to Question 1 is in any respect in the affirmative, in each case was the notice

If the answers to Questions land 2 are in any respect in the affirmative and the first respondent failed or neglected to consult the applicant in relation to any of the matters mentioned in para. 1 hereof but the other ministers abovementioned did consult the applicant within the meaning of 8.111C(2)(a) of the Act as referred to in Question 2 above, in each case was the notice invalid and of

Tf the answers to Questions land 2 are in any respect in the affirmative and the first respondent and the other ministers abovementioned failed or

meaning of 5.111C0(2)(a) of the Act as referred to in Questions 1 and 2 respectively, was the notice

Not less than 49 hours before the time fixed for the hearing of the case stated each party shall file in the registry and serve on all other parties

THIS IS A TRUE COPY OF THE NOTICE MARKED WITH THE LETTER "A"

REFERRED TO IN PARAGRAPH 6 OF THE STATEMENT OF AGREED FACTS

In pursuance of section 82 of the Broadcasting and Television Act 1942, I, Michael John Duffy, Minister of State for Communications, hereby invite applications for, or written submissions relating to, the grant of a licence for a commercial television station subject to the following specifications:

(a) the licensee shall provide a television service by means of a commercial television station;

(b) the area served shall he an area within the Perth Metropolitan Television Area in the State of Western

(c) the purpose of the service shall be to provide a commercial

television service to communities within the area referred ta in (b) above;

(d) the licensee shall operate within the following nominal technical parameters:

• Transmitter Site: Location: In the general vicinity of the existing television transmitting stations at Bickley.

Vision Carrier: (VHF channel 10) or (UHF channel 31) Polarisation: Horizontal

above ground level: Adequate to provide appropriate coverage of the area identified in (b) above.

Detailed technical parameters will he determined following consultation between the successful applicant and my Department.

Where the successful applicant chooses to use VHF channel 10 it will be required to:

• Negotiate with affected licensees and my Department suitable alternative technical conditions for those television

stations and television translator stations which are thereby required to change frequency;

• Bear the full cost of conversion of these television stations and television translator stations to alternative technical conditions.

Applications for the grant of the licence shall be made on approved forms obtainable on request in writing from the Secretary, Australian Broadcasting Tribunal, 153 Walker Street, North Sydney, N.S.W. 2060, by telephoning the Tribunal on (02) 922 2900, or from the State Offices of the Tribunal.

Applications for the grant of the licence shall be lodged with the Secretary, Australian Broadcasting Tribunal at the above address

not later than 5.00 p.m. on 28 September 1984, Written submissions relating to the grant of the licence shall he

lodged with the Secretary, Australian Broadcasting Tribunal at the above address not later than 5.00 p.m. on 12 October 1984.