UCX Ltd v Australian Communications and Media Authority

1. To the extent necessary, the applicants have leave to file a notice of discontinuance.
2. The applicants not be liable to pay the costs of the second and third respondents. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ROBERTSON J: 1 These proceedings were commenced on 1 August 2019. They concern the decision of the Australian Communications and Media Authority (the ACMA), the first respondent, to transfer apparatus licence 483325/3 from the first applicant to the second respondent, Exalt Media Pty Ltd. The applicants claimed that that decision was vitiated by the third respondent's misrepresentation and false declaration in the application to transfer the licence to the second respondent dated 8 August 2017, and that the first applicant was the true licensee of the licence. 2 It appears that the relevant licence was a low-powered open narrowcasting apparatus licence issued under the Radiocommunications Act 1992 (Cth). 3 The matter first came before a judge of this Court as duty judge on 1 August 2019, when certain interlocutory orders were made. Steps were ordered to be taken to serve the second and third respondents, the first respondent having participated in the interlocutory hearing on that date. 4 By email to my associate on 13 August 2019, the Court was informed by the solicitor for the applicants that related proceedings in the Administrative Appeals Tribunal (2019/3791) had settled, with the applicant (or applicants) filing a notice of withdrawal in the Tribunal on 13 August 2019. I understand that only the first respondent, the ACMA, was a respondent party to those Tribunal proceedings and that the second and third respondents in the proceedings in this Court were not parties to the Tribunal proceedings. 5 The applicants' position was that settlement of the Tribunal proceedings had the effect of also resolving the proceedings in this Court. 6 I am satisfied that, although neither of them has filed a notice of appearance, the second respondent and the third respondent have, or should be taken to have, notice of these proceedings. So far as concerns the second respondent I refer to the affidavit of Ms Kerry Elizabeth Lang affirmed on 6 August 2019. So far as concerns the third respondent I refer to the affidavit of Ms Amy Kilpatrick affirmed on 6 August 2019. Each of those affidavits deposes to the steps taken, in accordance with the orders made by Nicholas J, to serve each of those parties. 7 I refer as well to the affidavit affirmed by Ms Sarah Ruth Robinson on 20 August 2019 deposing to an email communication and a telephone message to the second and third respondents on 20 August 2019. I refer also to the affidavit of Ms Amy Kilpatrick affirmed 31 July 2019 at [15] and [22]. 8 The position is summarised in the applicants' submissions, which I substantially accept, as follows: the second and third respondents have been served with the originating process and the affidavit of Ms Amy Kilpatrick dated 31 July 2019 and with the first and second orders of the Court made on 1 August 2019 by substituted service. Telephone contact was attempted on 1 and 20 August 2019, and email or mail contact made on 1, 6, 12 and 20 August 2019. In each case the applicants received no response. In addition, the first applicant brought its claims to the licence to the attention of the second and third respondents on 11 July and 27 September 2018: they did not respond. The second respondent, which for a period was the licensee of the licence the subject of the proceedings, allowed the licence to lapse on 6 June 2019. 9 The relevant provisions in relation to discontinuance are to be found in r 26.12 of the Federal Court Rules 2011 (Cth). Leave to file a notice of discontinuance may not be necessary in the present circumstances because one of the orders made on 1 August 2019 was that the applicants file and serve a statement of claim. Notwithstanding that order being vacated on 14 August 2019 as a result of the email referred to above at [4], it may be that, for the purposes of r 26.12(2), the applicants may file the notice of discontinuance without leave or consent because "the proceeding is continuing on pleadings" and because pleadings have not closed: see r 26.12(2)(a)(ii). But, if leave is necessary, I grant that leave. 10 The question then becomes one of costs. Rule 26.12(7) of the Federal Court Rules provides: (7) Unless the terms of a consent or an order of the Court provide otherwise, a party who files a notice of discontinuance under subrule (2) is liable to pay the costs of each other party to the proceeding in relation to the claim, or part of the claim, that is discontinued. 11 The position so far as concerns the first respondent, the ACMA, is straightforward because there is before me a notice of discontinuance, by consent of the first respondent, stating that the parties bear their own costs. I read this as stating the position as between the applicants and the first respondent. Therefore the terms of the consent provides otherwise than the default position under r 26.12(7). 12 So far as concerns the second and third respondents, there being no consent, the starting point on the question of costs is that the discontinuing party must pay the costs unless, for good reason shown, the Court orders otherwise: Australian Securities and Investments Commission v Diploma Group Ltd (No 3) [2017] FCA 891 at [2] per McKerracher J. 13 In my opinion, the appropriate order is that the applicants not be liable to pay the costs of the second and third respondents. Good reason has been shown. The second and third respondents have not participated in the proceedings and it is appropriate, in the circumstances to which I have referred at [8] above, that the applicants not be required to pay their costs. 14 I order that, to the extent necessary, the applicants be granted leave to discontinue the proceedings and I order that the applicants are not liable to pay the costs of the second and third respondents. No order is required in relation to the position of the first respondent's costs, that being covered by the terms of the consent referred to at [11] above. 15 I draw to the attention of the applicants that, by r 26.13 of the Federal Court Rules, a party filing a notice of discontinuance must, as soon as reasonably practicable, serve a copy of the notice on each other party to the proceeding. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.