Wyong-Gosford Progressive Community Radio Incorporated v Australian Communications Media Authority and Gosford Christian Broadcasters Limited

Wyong-Gosford Progressive Community Radio Incorporated v Australian Communications Media Authority and Gosford Christian Broadcasters Limited - [2006] FCA 1691 - FCA 2006 case summary — Zoe

[11]

(a) if the decision sets out the findings on material questions of fact, refers to the evidence or other material on which those findings were based and gives the reasons for the decision - the day on which a document setting out the terms of the decision is furnished to the applicant;' 15 Mr Lindberg, on behalf of PCR, provided the reasons for the delay in bringing these proceedings within the 28 day period as follows: (a) Raising funds to commence proceedings to prepare the application; (b) obtain legal advice from counsel; (c) delay in obtaining the relevant documents which are to form the evidence in support of the application; (d) compiling the evidence pursuant to legal advice; and (e) being a non-profit organisation run by a committee of Management volunteers, there are delays in evaluating the prospects of the proceedings. 16 Mr Lindberg explained that he was on holidays over the Christmas/new year period and on 13 January 2005 he forwarded an email to PCR's solicitors with his comments in relation to the Decision. On or about 20 January 2005 he held discussions with committee members of PCR, in relation, inter alia, to the issue of the limitation period. This question was raised because of PCR's experience in relation to the previous proceedings in this Court. Mr Lindberg said that he communicated with PCR's solicitor by email on 20 January 2005. The advice received in response informed Mr Lindberg in general terms that there was usually a discretion to allow an appeal even though it was out of time. The advice referred to the 28 day period but did not indicate any date by which the application would need to be lodged for this purpose, nor stressed any urgency. Mr Lindberg says that he was comforted by such advice and claims that because of the delays caused by the new year period and the fact that the Reasons were not received until Christmas 2004, he believed the Court would allow an application by PCR. 17 Mr Lindberg states that he first became aware that an extension of time would be essential when he received advice from a barrister in May 2005. As a result of that advice new issues arose and funds had to be raised for legal expenses. By 20 June 2005 it became apparent that there was disagreement amongst PCR's legal advisers relating to its prospects of success. Further legal advice was sought in late July 2005 or early August 2005. Such advice was received on 24 August 2005. It was more favourable than the previous advice and was circulated to members of PCR. In September and October 2005 Mr Lindberg provided PCR's solicitors with instructions for his affidavit. He stated he had not been able to gather all the relevant documents until November. Accordingly the application was not filed until 21 November 2005. 18 PCR accepts fault in not lodging its application under s 39B of the Judiciary Act. However in relation to the application for extension of time it submits that PCR is a community radio station operated by volunteers as a non-profit organisation. It claims that, arising from the legal advice provided to it on 20 January 2005, no urgency in filing the application was indicated and that the advice therefore provided a false impression. It claims that shortly after the decision was made known, PCR wrote a strong letter to the ABA on 25 October 2004. The ABA responded on 25 February 2005 stating that PCR had a 'right' to seek judicial review by an appeal to the Federal Court under the ADJR Act.

[14]

(a) ADJR Act Application 23 PCR asks the Court to exercise its discretion to grant an extension of time. In exercising its discretion, the Court must consider interests beyond those of an applicant. Whilst s 11 of the ADJR Act does not specifically impose a burden of proof upon an applicant for the extension of time, an applicant is required to show why 'in all the circumstances, the extension of time should be granted': see Lucic v Nolan and Others (1982) 45 ALR 411 at 416. Further, the 'prescribed period' of 28 days is not to be ignored: see Ralkon Agricultural Co Pty Ltd v Aboriginal Development Commission (1982) 43 ALR 535 at 550. 24 The evidence concerning the delay in raising funds to obtain legal advice, both at the initial stages in March 2005 and also in May 2005 is vague. No detail is provided concerning the amount of funding held by PCR or of other monetary sources to which it might have had access, such as a bank loan. Mr Lindberg states that in late June he travelled to the headquarters of the National Ethnic Multicultural Broadcasters Council in Melbourne for approximately a week. However, this is an inadequate reason for delaying the institution of proceedings especially when Mr Lindberg knew from the 2002 application that a time limit existed for commencing proceedings under the ADJR Act. 25 It was not until late July 2005 or early August 2005 that PCR sought another legal opinion which was provided on 24 August 2005. Even at that stage PCR did not consider there was any special urgency in instituting proceedings. 26 The fact that an adverse legal opinion was received by PCR relating to its prospects of success in May 2005 is not a sufficient reason to justify the delay in commencing proceedings. GCB submits that the observations of McHugh J in Re Commonwealth of Australia and Another; Ex parte Marks (2000) 177 ALR 491 apply wherein His Honour said (with reference to the prevailing High Court Rules) that a delay of 17 months to institute proceedings to quash a decision was beyond that which should be countenanced: see [16]. His Honour also said at [17] that: 'An applicant's inability to obtain favourable legal advice is not a ground for extending the time for seeking mandamus or the ancillary writ of certiorari. Upon the expiry of the time for the issue of a constitutional writ against a decision or judgment, the respondent has a vested right to retain the judgment or decision.'

[15]

27 Apart from the letter written to the ABA by PCR and the response dated 25 February 2005 there was no indication to the ABA, as the decision-maker, that the Decision would be contested. 28 The merits of the substantive application are to be taken into consideration (see Hunter Valley Developments Pty Ltd at 349). In these proceedings, the Court considers that PCR's claims are arguable. However, PCR's application must be considered with reference to all parties who might be affected and the question of prejudice being occasioned to GCB is a matter for the Court's consideration: see Hunter Valley Developments Pty Ltd at 349; Doyle v Chief of General Staff (1982) 42 ALR 283 at 287; Lovett v Le Gall (1975) 10 SASR 479 at 485; Wedesweiller and Others v Cole and Others (1983) 47 ALR 528 at 533-534. 29 No thought seems to have been given by PCR to the fact that GCB might have been taking steps to implement the licence, and might expend monies in reliance of the Decision. The evidence of GCB establishes that it has incurred expenditure of approximately $107,000.00 in the necessary infrastructure for its broadcasting operations. GCB waited until the 28 day period prescribed by s 11(1)(c) of the ADJR Act had expired before incurring such expenditure. GCB has entered into a sublease of premises and made contracts and other commercial arrangements with third parties. Whilst PCR submits that such contracts are short term and could be readily terminated, at least one contract continues until 2008. Additionally, staff have been engaged and trained for the operations of GCB and remain in its employ. 30 The High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 considered the Limitation of Actions Act 1974 (Qld) and held that where an applicant sought an extension of time in which to bring proceedings it was necessary to show that prejudice would not result to the other party. McHugh J referred to the need to limit the time in which actions should be brought (see 552-553). McHugh J observed at 555 that a plaintiff's claim is: '… seldom likely to be strong enough to warrant a Court reinstating a right of action against the defendant who, by reason of delay in commencing the action, is unable to fairly defend itself or is otherwise prejudiced in fact and who is not guilty of fraud, deception or concealment in respect of the existence of that action.'

[18]

(b) Judiciary Act Application 37 The next consideration relates to the application under s 39B of the Judiciary Act. While the Rules of the High Court of Australia contain a time limit requiring an application for a writ of certiorari to be issued within 6 months of the date of the judgment, order, conviction or other proceedings (see Rule 25.06 of the High Court Rules 2004), such Rule has no application in this Court, and there is no equivalent rule in the Federal Court Rules 1977. However the Court is entitled to consider whether these proceedings have been instituted within a reasonable time. 38 In R v O'Sullivan; Ex parte Clarke [1967] WAR 168, the Full Court of the Supreme Court of Western Australia found that a delay in filing an application for a writ of certiorari, issued more than three months after the Court's decision, was regarded as substantial and 'an important factor in the exercise of the court's decision to refuse relief…' In Ansell v Wells and Others (1982) 63 FLR 127 Lockhart J at page 156 said '[d]elay, coupled with prejudice to the defendant or a third party, may debar a plaintiff from discretionary relief.' In Re David Smith and The West Australian Development Corporation; Ex parte Rundle and Others (1992) 5 WAR 295 Malcolm CJ, delivering the judgment of the Full Court observed in relation to the time limit prescribed by the Rules of the Supreme Court of Western Australia: 'The time limit in O 65, r 11(1) of six months has its justification in the need to act promptly in relation to proceedings to quash the decision of an inferior court or tribunal. Great inconvenience could be caused by permitting the decision to stand and allowing people to act on the assumption that the decision was valid. The six months time limit was introduced in England in 1740 by the statute 13 GeoII, c 18 s 5 which provided that no certiorari should issue for the removal of orders made by justices of the peace after six months. The court had no discretion to extend time: see R v Anglesea Justices (1846) 10 Jur 817. The 1740 statute was repealed by the Statute Law Revision Act 1888. The court has an express power to extend the time under the rule. In my opinion it is, at the least, extremely doubtful whether the rule applies to decisions of bodies or persons other than inferior courts or statutory tribunals. If it does not, the rule would not apply to a decision such as that made by the minister in the present case. Even if the rule does not apply, however, the nature of the remedy of certiorari is such that the court would require it to be sought promptly.'

[42]

Ground 1 - Misconstruction of proposed service 75 The Reasons show that the ABA considered the type of service that would be provided by GCB. It found that some of the programs to be broadcast would be the same as those broadcast by NCB being programs directed at furthering Christian beliefs. As was explained in oral evidence by John Ian Marks, general manager of NCB, the term Rhema which is used in the trading names of both NCB and GCB, is derived from the Greek word meaning the spoken word and is used to connote the furtherance of the Christian religion. The ABA referred to the information provided by GCB that community needs would be met through a range of 'spoken word programming', such as broadcasts by a Christian psychologist on relevant issues, including raising children, building better marriages and 'hope for the seriously ill'. Accordingly, it was apparent that the type of programs broadcast by NCB trading as Rhema FM Newcastle would not be dissimilar to those proposed for GCB trading as Rhema Gosford. However, the ABA found that local content would be incorporated in GCB's programs. 76 The Reasons refer to the monitoring by GCB of community needs and noted that GCB stated that the interests of Christians in the licence area community would be served by the provision of a service that would be alternative to the other services currently available. GCB described the service as one which did not include explicit language, sexual references and tasteless humour and one which did not treat participants in call back programs as 'second class citizens' or malign them for their religious convictions. 77 The ABA noted that NCB's service, which was licensed for the Newcastle RA 2 licence area could be heard in some parts of the Gosford licence area but that such reception was 'fortuitous'. Further, the Newcastle service focussed on the Newcastle community whereas GCB's evidence showed that it intended to increase local participation in the proposed service and include a number of locally produced programs in its program schedule. The Reasons state that: '... some programming on the proposed service is syndicated and not produced in the local area. However, GCB proposes to provide programs for the licence area community that are produced locally. It has broadcast locally produced programs during its temporary broadcasts.'

Parties

Applicant/Plaintiff:

Wyong-Gosford Progressive Community Radio Incorporated

Respondent/Defendant:

Australian Communications Media Authority and Gosford Christian Broadcasters Limited

Legislation Cited (6)

Administrative Decisions (Judicial Review) Act 1977(Cth)

Judiciary Act 1903(Cth)

Broadcasting Services Act 1992(Cth)

Freedom of Information Act 1982(Cth)

Limitation of Actions Act 1974(Qld)

Administrative Decision (Judicial Review) Act 1977(Cth)

Cases Cited (28)

Wyong-Gosford Progressive Community Radio Incorporated v Australian Communications Media Authority and Gosford Christian Broadcasters Limited [2006] FCA 1691

Ansell v Wells and Others (1982) 63 FLR 127, cited Australian Broadcasting Tribunal v Bond and Others (1990) 170 CLR 321, cited Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, cited Buck v Bavone (1976) 135 CLR 110, referred to Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, cited Community Television Sydney Ltd v Australian Broadcasting Authority and Another (2004) 136 FCR 316, cited Curragh Queensland Mining Limited v Daniel and Others (1992) 34 FCR 212, referred to Doyle v Chief of General Staff (1982) 42 ALR 283, referred to Elias v Commissioner of Taxation (2002) 123 FCR 499, referred to F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry (1975) AC 295, cited Gamaethige v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 424, referred to Hickey and Others v Australian Telecommunications Commission (1983) 72 FLR 291, referred to Hill v Green (1999) 48 NSWLR 161, cited Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, referred to Kruger and Others v Commonwealth of Australia (1997) 190 CLR 1, referred to Lovett v Le Gall (1975) 10 SASR 479, referred to Lucic v Nolan and Others (1982) 45 ALR 411, referred to Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24, followed Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, referred to Minister for Immigration and Multicultural Affairs v Rajamanikkam and Another (2002) 210 CLR 222, cited Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, referred to R v O'Sullivan; Ex parte Clarke [1967] WAR 168, referred to Ralkon Agricultural Co Pty Ltd v Aboriginal Development Commission (1982) 43 ALR 535, referred to Re David Smith and The West Australian Development Corporation; Ex parte Rundle and Others (1992) 5 WAR 295, cited Re Refugee Review Tribunal and Another; Ex parte Aala [2000] 204 CLR 82, cited Silkman v Kendall [1982] 1 NSWLR 133, referred to Telstra Corp Ltd v Hornsby Shire Council (2006) 146 LGERA 10, referred to The Queen v Australian Stevedoring Industry Board and Another: Ex parte Melbourne Stevedoring Company Proprietary Limited (1953)88 CLR 100, referred to The Queen v The Australian Broadcasting Tribunal and Others; Ex parte Hardiman and Others (1980) 144 CLR 13, referred to Toohey v Taylor [1983] 1 NSWLR 743, referred to Wedesweiller and Others v Cole and Others (1983) 47 ALR 528, referred to Wyong-Gosford Progressive Community Radio Inc v Australian Broadcasting Authority and Another [2003] 125 FCR 560, referred to

(1982) 63 FLR 127

(1990) 170 CLR 321

(1996) 186 CLR 541

(1976) 135 CLR 110

(1993) 43 FCR 280

(2004) 136 FCR 316

(1992) 34 FCR 212

(1982) 42 ALR 283

(2002) 123 FCR 499

(2001) 109 FCR 424

(1983) 72 FLR 291

(1999) 48 NSWLR 161

(1984) 3 FCR 344

(1997) 190 CLR 1

(1975) 10 SASR 479

(1982) 45 ALR 411

(1986) 162 CLR 24

(1999) 197 CLR 611

(2002) 210 CLR 222

(2001) 206 CLR 323

(1982) 43 ALR 535

(1992) 5 WAR 295

(2006) 146 LGERA 10

(1980) 144 CLR 13

(1983) 47 ALR 528

(2000) 177 ALR 491

Cited By (3)

Fisk v Chief of the Defence Force

Garvey v Australian National University

McGough v The Aged Care Quality and Safety Commissioner

At a glance

Court

Decision date

Before

Source

Judgment (72 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (28)

Cited By (3)