FEDERAL COURT OF AUSTRALIA

Community Television Sydney Limited v Australian Broadcasting Authority (No 2) [2004] FCA 614

ADMINISTRATIVE LAW – role of statutory authority in judicial review proceedings – ‘Hardiman’ principle – whether applicable where the authority is performing a regulatory role rather than adjudicating between parties – whether applicable in ‘one party’ cases – whether applicable where the authority defends allegations made against it

COSTS – appropriate order where authority infringes ‘Hardiman’ principle

Administrative Decisions (Judicial Review) Act 1977 (Cth)

The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 applied

Wyong-Gosford Progressive Community Radio Inc v Australian Broadcasting Authority (2003) 125 FCR 560 cited

TXU Electricity Ltd v The Office of the Regulator-General (2001) 3 VR 93 followed

COMMUNITY TELEVISION SYDNEY LIMITED v AUSTRALIAN BROADCASTING AUTHORITY & ANOR

N 378 of 2004

SACKVILLE J

SYDNEY

14 MAY 2004

THE COURT ORDERS THAT:

1.                  The applicant pay 25% of the first respondent’s costs of the proceedings.

2.                  The applicant pay the second respondent’s costs of the proceedings.

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

REASONS FOR JUDGMENT

1                     These proceedings were commenced on 19 March 2004.  The applicant (‘CTS’) challenged a decision of the first respondent, the Australian Broadcasting Authority (‘the Authority’), made the previous day, 18 March 2004.  On that date, the Authority decided to allocate a community broadcasting licence for Sydney to the second respondent (‘TVS’) and not to CTS, a competing applicant for the licence (‘the allocation decision’).

2                     Since CTS’s existing apparatus licence expired on 19 March 2004, the proceedings had to be dealt with urgently.  The matter came before Emmett J as duty Judge on 19 March 2004, when CTS sought urgent interim relief in view of the imminent expiration of its apparatus licence.  On that occasion, TVS, although joined as a party, did not appear.  The Authority declined to consent to an interlocutory regime to preserve the status quo.  However, his Honour made interim orders suspending the allocation decision until 22 March 2004 and staying all proceedings under the allocation decision. 

3                     On 22 March 2004, the matter again came before Emmett J.  On that occasion TVS appeared and was represented by counsel, although it did not file a notice of appearance until the following day.  Orders were made by consent on that day extending the interim orders and setting the matter down for final hearing on 25 March 2004.

4                     On 25 March 2004, I heard the application.  Both the Authority and TVS were represented by senior counsel, as was CTS.  The Authority and TVS each made written and oral submissions opposing CTS’s claim for relief.

5                     I delivered judgment on 16 April 2004, dismissing the application ([2004] FCA 443).  In the judgment I said this about the Authority’s role in the proceedings (at [5]-[7]):

‘[A]t the hearing in this Court all three parties were represented by senior counsel.  Mr Gageler SC, who appeared with Mr Smark for the Authority, read without objection an affidavit, tendered some documents and made detailed submissions in opposition to the relief sought by CTS.  In the course of Mr Gageler’s submissions, I suggested that the role adopted by the Authority in the litigation, having regard to the fact that there was a contradictor present in the form of TVS, appeared to be inconsistent with the observations of the High Court in The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, at 35-36.  There the High Court pointed out that if a tribunal (or in this case the Authority) becomes a protagonist in litigation challenging its decisions

‘there is the risk that…it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted’. 

Mr Robertson SC, who appeared for TVS, justified the Authority’s role on the ground that, in substance, it was simply providing assistance to the Court by explaining its powers and the operation of the Broadcasting Act.  Although the Authority presented valuable material explaining the background to the allocation decision, in my view it went beyond merely assisting the Court in relation to the Authority’s powers and procedures.  In effect, it resisted the applicant’s claim by addressing and attempting to refute each of its arguments.  In other words, it became a protagonist in the proceedings.  Consistently with the pronouncement of the High Court, unless there are exceptional circumstances, not present in this case, the Authority should not adopt this role.

I note that in Wyong-Gosford Progressive Community Radio Inc v Australian Broadcasting Authority (2003) 125 FCR 560, the Authority seems to have acted as a contradictor in proceedings challenging a decision to allocate a CTV licence.  Indeed, the Authority was ordered to pay the costs of the successful application to review its decision.  However, no objection seems to have been taken to the Authority acting in this way and the question was not addressed in the judgment.’

6                     In the judgment, I expressed my ‘present view’ that the only order for costs that should be made was that CTS pay TVS’s costs (at [88]).  I foreshadowed making no order for costs in favour of the Authority because of the view I had expressed as to the role it had played in the proceedings.  However, I gave the parties the opportunity to file written submissions on costs.

7                     The Authority duly filed written submissions contending that it should not be denied its costs.  It contended that

• the Hardiman principle did not apply in the circumstances of the present case;
• alternatively, the Authority’s role was appropriate even if the Hardiman principle applied.

8                     CTS, in its written submissions, supported the reasoning and conclusion tentatively expressed in the judgment.  TVS made no submissions on costs.

9                     The Authority contended that the fact that TVS was a party to the proceedings and had an interest in defending the Authority’s decision did not disentitle the Authority from playing an active role in the proceedings.  The Authority drew attention to the precise language used by the High Court in Hardiman, at 35-36:

‘In cases of this kind the usual course is for a tribunal to submit to such order as the court may make.  The course which was adopted by the tribunal in this court is not one which we wish to encourage.  If a tribunal becomes a protagonist in this court there is the risk that by so doing it endangers the impartiality which is expected to maintain in subsequent proceedings which take place if and when relief is granted.  The presentation of a case in this court by a tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers and procedures of the Tribunal.’  (Emphasis added.)

10                  This language, so the Authority argued, means that the principle is confined to cases of the same kind as Hardiman itself: that is, quasi-judicial proceedings involving alleged contraventions of the legislation, which in substance are adversarial in character.  On this argument, the Hardiman principle does not apply where the relevant body is not exercising an adjudicatory function in the context of proceedings inter partes, but is performing a regulatory role.

11                  Precisely this argument was put to Ashley J in TXU Electricity Ltd v The Office of the Regulator-General (2001) 3 VR 93, and rejected by his Honour.  In my respectful opinion, Ashley J’s judgment contains a careful analysis of the authorities and reaches conclusions that accord with principle.  His Honour, after reviewing the authorities, said this (at 101-102 [42]-[45]):

‘[T]he context in which the Hardiman observations were made suggests that the High Court was there giving its imprimatur to the course previously adopted in industrial and court matters, and was probably indicating that in proceedings for judicial review the same course should at least be adopted by decision-makers before whom hearings which were in substance inter partes were conducted.  In such cases there would be a natural contradictor.  Moreover, there might reasonably be as much concern about partiality or the appearance of partiality if a matter was to be remitted to such a decision-maker as there might be in the case of a court or industrial tribunal to which there was to be remitter.

It cannot be said, in my opinion, that Hardiman plainly extended the then-existing regime to decision-makers in “one party” cases.  But there was and is good reason for giving the principle operation in at least some cases of that kind.  The cases in which the principle sensibly applies are those in which:

·        the decision-maker is bound to apply the rules of procedural fairness; and

·        the application for prerogative relief raises the prospect of remitter; and

·        there is a public interest as would justify the intervention of the Attorney-General.

Even so, the dictum of Brennan J in Fagan [v Crimes Compensation Tribunal (1982) 150 CLR 666, at 681-682] makes it clear that the principle should not be applied if the Attorney-General does not intervene and no “law officer” or “public official” is heard by the court.  In the absence of such intervention the decision-maker in such a case should characteristically assist the court, particularly upon the question of power, and in doing so adopt as little of the role of partisan as is possible.

I said a moment ago that there was and remains good reason for giving the Hardiman principle operation in certain “one party” cases.  The reason is this: in such a case, where there is prospect of remitter, a concern as to the fact or appearance of partiality could arise. It would not be a concern that the decision-maker was or appeared to be favourably disposed to one of two parties; but rather that the decision-maker was or appeared to be unfavourably disposed to the prosecutor.’

12                  The Authority’s written submissions did not seek to distinguish TXU Electricity, but asserted that it was ‘simply wrong’.  I do not think it is.  None of the cases cited by the Authority is inconsistent with Ashley J’s reasoning. While it is true that most of the cases in which Hardiman has been applied involved tribunal proceedings that in substance were adversarial in character, the principle can justifiably be extended to the situation identified by Ashley J, for the reasons his Honour gives.

13                  In the present case, the Authority was clearly required to conform to the rules of procedural fairness in making the allocation decision.  CTS’s application for relief in this Court was made under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and raised the prospect of remitter to the Authority.  Had that occurred, the Authority would have had to decide, in effect, between CTS and TVS, the only two applicants for the licence who met the statutory criteria.  While the judicial review proceedings in this Court did not call for the intervention of the Attorney-General, there was a contradictor present, prepared to advance arguments in opposition to CTS’s claim for relief.  In these circumstances, in my opinion, the principle in Hardiman applied and the Authority’s role in the proceedings should have been consistent with that principle.

14                  The Authority’s alternative submission relied on the High Court’s acknowledgement that the Hardiman principle admits of an ‘exceptional case’ where active involvement of the decision-maker in the judicial review proceedings is appropriate.  The Authority contended that there were three elements in the present case that justified it acting, in effect, as a contradictor in the proceedings:

(i)                  The proceedings had come on with great expedition, in circumstances where no objection was made to the Authority filing evidence and submissions.

(ii)                Although TVS ultimately appeared and made submissions at the hearing, its willingness to perform the role of an active and comprehensive contradictor was in doubt until the day of the hearing.  In this respect, the Authority pointed to a letter from TVS, written the day before the hearing, in which it advised the Authority that it did not intend to play a major role in the proceedings and requested an indemnity in relation to any adverse costs order.

(iii)               The grounds of review justified the Authority playing an active role in the proceedings.  In particular, CTS had alleged that the Authority had taken into account, in making its decision, the likelihood that CTS would criticise or encourage criticism of the allocation decision.  This allegation, so it was said, required the Authority to defend itself.

15                  In my opinion, the first two matters identified by the Authority do not justify an award of costs in its favour.  As to the first, the fact that an applicant acquiesces in orders contemplating that the Authority will file evidence and make submissions does not relieve the Authority from the need to determine whether the role it intends to play in the proceedings is appropriate having regard to principles endorsed by the High Court.  As to the second, it is true that TVS ultimately did not make its position clear until shortly before the hearing.  But TVS did file written submissions, appear at the hearing and make oral submissions.  Despite this, the Authority maintained its role as a contradictor at the hearing, and did not confine its submissions in the manner contemplated by the Hardiman principle.  Moreover, CTS was apparently not made aware of the correspondence between TVS and the Authority and the latter, so far as the evidence indicates, did not explain its position to CTS in advance of the hearing.

16                  The third point I think has more substance.  The particular allegation made by CTS did require an answer by the Authority.  Had the proceedings not been brought on for hearing so rapidly, it might have been expected that TVS would have addressed this issue.  However, in the circumstances, it is fair to say that the only practicable course was for the Authority itself to respond to CTS’s contention.  In my view, the need to respond to this contention can properly be regarded as an exceptional circumstance warranting recognition in a costs order.  However, in determining the appropriate costs order it is necessary to bear in mind that the issue requiring a response by the Authority was  only one of a number of issues addressed in the evidence and submissions. 

17                  Taking into account the matters to which I have referred, I think an appropriate costs order as between CTS and the Authority is that CTS pay 25% of the Authority’s costs of the proceedings.

18                  Given the substantial commonality of interest between the Authority and TVS, there might have been something to be said for reducing the proportion of TVS’s costs that CTS is required to pay, in order to ensure that CTS does not have to pay more than one set of costs in all.  However, CTS did not advance any such argument.  Accordingly, I propose to make the costs order foreshadowed in the earlier judgment, namely that CTS pay TVS’s costs of the proceedings.

Associate:

Dated:              14 May 2004