FEDERAL COURT OF AUSTRALIA
Wyong-Gosford Progressive Community Radio Incorporated v Australian Communications Media Authority and Gosford Christian Broadcasters Limited [2006] FCA 1691
Administrative Decision (Judicial Review) Act 1977 (Cth), ss 5, 11
Broadcasting Services Act 1992 (Cth), ss 3, 5, 6, 15, 84, 89
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
2258 OF 2005
COWDROY J
20 DECEMBER 2006
SYDNEY
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
2258 OF 2005 |
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BETWEEN: |
WYONG-GOSFORD PROGRESSIVE COMMUNITY RADIO INCORPORATED Applicant
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AND: |
AUSTRALIAN COMMUNICATIONS MEDIA AUTHORITY First Respondent
GOSFORD CHRISTIAN BROADCASTERS LIMITED Second Respondent
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COWDROY J |
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DATE OF ORDER: |
20 DECEMBER 2006 |
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WHERE MADE: |
SYDNEY |
THE COURT ORDERS THAT:
1. The application for an extension of time in which to institute proceedings pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) be dismissed.
2. The application be dismissed.
3. The applicant pay the costs of the first and second respondents.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
2258 OF 2005 |
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BETWEEN: |
WYONG-GOSFORD PROGRESSIVE COMMUNITY RADIO INCORPORATED Applicant
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AND: |
AUSTRALIAN COMMUNICATIONS MEDIA AUTHORITY First Respondent
GOSFORD CHRISTIAN BROADCASTERS LIMITED Second Respondent
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JUDGE: |
COWDROY J |
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DATE: |
20 DECEMBER 2006 |
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PLACE: |
SYDNEY |
REASONS FOR JUDGMENT
1 The applicant, Wyong-Gosford Progressive Community Radio Incorporated (‘PCR’) seeks judicial review of a decision made by the first respondent (‘the ABA’) to grant a Community Broadcasting Service Licence No. SL1150186 (‘the licence’) to the second respondent (‘GCB’) in respect of the Gosford Licence Area Plan RA 1 (‘the licence area’). The licence authorised GCB to operate on the 94.9 MHz FM band.
2 This application was filed pursuant to s 5 of the Administrative Decision (Judicial Review) Act 1977 (Cth) (‘the ADJR Act’) on 21 November 2005. On 21 October 2004, 13 months prior to the institution of this application, the ABA granted the licence to GCB pursuant to s 84 of the Broadcasting Services Act 1992 (Cth) (‘the Act’).Accordingly the application was filed outside the 28 day period provided by s 11(3) of the ADJR Act. As a consequence PCR requires an order from the Court extending the period in which the appeal might be brought before the appeal can be considered. GCB opposes the grant of an extension of time.
3 The name of the first respondent was changed to the Australian Communications Media Authority (‘ACMA’) on 1 July 2005. For convenience it will be referred to as the ABA.
facts
4 PCR is a community radio station which operated as a broadcaster on the 94.9 MHz FM band in the Wyong-Gosford area pursuant to a temporary broadcasting licence between 1993 and 2004. Its operations had been conducted by volunteers from the local community.
5 On 29 May 2002 the ABA invited applications for a Community Broadcasting Licence for the licence area pursuant to Part 6 of the Act. Both PCR and Newcastle Christian Broadcasters Limited trading as Rhema FM (‘NCB’) applied by the closing date. NCB had been operating as a community broadcaster in the Newcastle area pursuant to a temporary broadcasting licence and its programmes could be received in some areas of the licence area.
6 On 28 November 2002, after the date of closure of applications, the ABA accepted an application from GCB for the licence. GCB had been incorporated on 22 November 2002 and its application for a Community Broadcasting Licence was effectively substituted for NCB’s application.
7 On 23 December 2002 the licence was awarded by the ABA to GCB. PCR promptly challenged the decision of the ABA to grant the licence to GCB and brought proceedings under the ADJR Act in this Court. On 31 January 2003 Wilcox J determined that the award of the licence to GCB resulted from denial of natural justice and set aside the decision of the ABA: see Wyong-Gosford Progressive Community Radio Inc v Australian Broadcasting Authority and Another [2003] 125 FCR 560.
The present proceedings
8 On 19 March 2004 the ABA called for applications for the licence in respect of the licence area by advertisement published in the Central Coast Express, and by 16 April 2004 the ABA had received applications from three applicants, namely PCR, GCB and Radio Yesteryear.
9 On 6 May 2004 copies of each application was made available for public inspection on the ABA website and in hard copy at Gosford City Public Library. On 19 April 2004 the ABA wrote to each of the licence applicants advising them of the other applications and informing them that the general public was entitled to make submissions on the applications until 14 May 2004. The ABA duly received submissions and placed the submissions on its website for public inspection.
10 On 3 September 2004 meetings were held between the ABA and each of the applicants to clarify certain issues relating to their respective applications. On 21 October 2004 the ABA decided to issue the licence to GCB.
Events subsequent to date of grant of licence
11 On 18 November 2004 a request was made of the ABA by Tzovaras Legal, solicitors for PCR, for the reasons for ABA’s decision to allocate the licence to GCB. Such request was stated to be made pursuant to s 13 of the ADJR Act. On 16 December 2004 ABA faxed a copy of its Reasons for decision (hereafter referred to as ‘the Reasons’ and ‘the Decision’ respectively) to Mr Norbert Lindberg, as Secretary of PCR and the relevant documents were provided by the ABA to PCR on or about 4 January 2005 and other documents were provided under the Freedom of Information Act 1982 (Cth) by 28 January 2005. Thereafter no communication occurred between PCR and either GCB or the ABA until 24 November 2005 when PCR and the ABA were served with a copy of the application filed in these proceedings.
PCR’s entitlement to an Extension of Time
12 The application, which included an application for extension of time to commence these proceedings and setting out various claims under the ADJR Act was not filed until 23 November 2005. On 29 March 2006 the Court made orders by consent which included an order that PCR’s application for leave to file its application or an order of review out of time be set down for hearing on 19 June 2006. The date was subsequently extended to 1 August 2006 as a result of consent orders made on 7 June 2006.
13 On 19 July 2006, on the application of PCR, the hearing date of 1 August 2006 was vacated and the Court directed that the application for extension of time and the application for judicial review be heard simultaneously. An amended application was filed by PCR, raising as an alternative ground to its claim for relief under s 5 of the ADJR Act, a claim under s 39B(1A)(c) of the Judiciary Act 1903 (Cth) and an allegation of fraud on the part of GCB. The claim of fraud was abandoned shortly before the hearing.
PCR’s submissions
14 Pursuant to its Notice of Motion dated 28 March 2006 PCR seeks the necessary extension of time in which to bring the proceedings under the ADJR Act. Section 11(1)(c) requires that an application for an order of review must be lodged ‘within the prescribed period or within such further time as the Court… allows.’ The prescribed period for the purpose of paragraph (1)(c) is relevantly defined in s 11(3)(a) as:
‘… the period commencing on the day on which the decision is made and ending on the twenty‑eighth day after:
(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.
GCB’s submission
19 In its opposition to the application for extension of time GCB submits that the reasons advanced by PCR have no merit. It says that PCR was well aware from its previous litigation that time limits existed in relation to the filing of an application under the ADJR Act and Mr Lindberg acknowledged this in cross examination. Secondly, GCB points to the fact that at no stage, until it was served with the application, was GCB made aware that PCR would be challenging the decision. GCB says that following the expiration of the 28 day period and having received no indication of any challenge, it proceeded to implement its operations under the licence, and has been broadcasting thereafter.
20 GCB submits that the fact that PCR is staffed by volunteers is of no consequence, considering that GCB operates in a similar way. It claims that the attempt to allocate blame for the delay on the solicitors of PCR has no merit.
21 GCB submits that it would sustain prejudice and substantial financial detriment if leave were granted. It has itemised expenditure incurred and says that PCR was on notice that GCB proposed to expend $92,900 on capital costs if awarded the licence. It says such expenditure has in fact amounted to $107,811.32 between October 2004 and 31 August 2006 and that most of this expenditure was incurred after 13 January 2006.
FINDING RELATING TO EXTENSION OF TIME APPLICATION
22 The principles to be applied in relation to an application for extension of time are conveniently referred to in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 and in Hickey and Others v Australian Telecommunications Commission (1983) 72 FLR 291.
(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.’
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.’
31 The interests of the ABA are to be considered also. Consistent with the principles referred to in The Queen v The Australian Broadcasting Tribunal and Others; Ex parte Hardiman and Others (1980) 144 CLR 13, the ABA has adopted a neutral position in these proceedings. Nevertheless, in relation to the application for the extension of time it has raised matters relating to the public interest which the Court will consider.
32 The ABA refers to the statutory objects of the Act as contained in s 3 thereof. In summary, those objects included the provision of a regulatory environment
‘that will facilitate the development of a broadcasting industry in Australia that is efficient, competitive and responsive to audience needs…’
33 Section 5 of the Act makes provision for the role of the ABA. In Community Television Sydney Ltd v Australian Broadcasting Authority and Another (2004) 136 FCR 316 Sackville J at [317] observed that s 5(1)(b)(i) of the Act:
‘… required the Authority to use its functions and powers in a manner which, in its opinion, “will produce regulatory arrangements that are stable and predictable.”’
34 The ABA submits that judicial review proceedings under the ADJR Act are not ‘at large’ in relation to the time in which an application must be brought. I consider that the time limits provided by the ADJR Act further the object of certainty and reliability of administrative decisions which are necessary for stable and predictable regulatory arrangements. As such, they contribute to the efficiency of the broadcasting industry.
35 The failure of PCR to communicate in any way with GCB for more than 12 months following the date of the grant of the licence or to warn it of an impending challenge has led GCB to believe that no challenge would be made after the 28 period had expired. Further, the reasons advanced by Mr Lindberg for the failure to lodge the application even within a reasonable time after 22 February 2005 (being the expiration of the 28 day period), is not satisfactorily explained. PCR approached the issue in a leisurely manner, not foreshadowing its possible challenge. There was nothing in the advice received by Mr Lindberg in February 2005 which suggested that an open ended period would be allowed and considered appropriate by the Court. Further he was aware that a time limit for the commencement of proceedings existed. The claimed lack of funds is inadequate to explain way at least a warning to GCB and the ABA of a possible challenge could not have been given.
36 Accordingly the Court rejects the application for extension of time made in respect of the ADJR Act proceedings.
(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.’
39 In Re Refugee Review Tribunal and Another; Ex parte Aala [2000] 204 CLR 82 Gaudron and Gummow JJ referred to circumstances which might prevent the Court exercising its discretion in favour of granting prerogative relief and at [57] quoted Lord Denning in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry (1975) AC 295 at 320 (CA) where His Lordship said of a plaintiff who delays commencing proceedings:
‘He may be debarred from relief if he has acquiesced in the invalidity or has waived it. If he does not come with due diligence and ask for it to be set aside, he may be sent away with nothing (145). If his conduct has been disgraceful and he has in fact suffered no injustice, he may be refused relief (146).’
40 Ultimately the question to be considered is whether justice, to all parties, will be done if the Court proceeds to allow the application to be considered.
41 The Court observes that the licence which was awarded to GCB in 2004 has a duration of five years as provided by s 89 of the Act. GCB has been broadcasting with the authority of such licence for almost half of this period. The ABA also has an interest in ensuring that it discharges its statutory duty by providing services to the community which are both stable and efficient: (see s 5(1)(b)(i) of the Act). The possibility that GCB could be disrupted in its operations would not be in the public interest. Further, significant financial prejudice might result to GCB if leave were granted.
42 The Court further takes into consideration the factors considered above in relation to the ADJR Act application for extension of time, and finds that the time taken by PCR to commence the s 39B proceedings is unreasonable. The Court accordingly dismisses the application for relief under the Judiciary Act.
Challenges by PCR
43 Despite the above conclusions, for completeness the Court will state its findings in respect of the challenges made by PCR to the decision of the ABA.
The LICENCE application
44 ‘Community broadcasting licence’ is defined in s 6 of the Act as ‘a licence under Part 6 or 6A to provide a community broadcasting service that provides radio programs or television programs’. ‘Community Broadcasting Service’ is also defined as ‘having the meaning given by s.15’. Section 15 of the Act provides:
‘Community broadcasting services are broadcasting services that:
(a) are provided for community purposes; and
(b) are not operated for profit or as part of a profit‑making enterprise; and
(c) that provide programs that:
(i) are able to be received by commonly available equipment; and
(ii) are made available free to the general public; and
(d) comply with any determinations or clarifications under section 19 in relation to community broadcasting services.’
45 Section 84(2) contained in Part 6 of the Act requires the ABA, as the licensing authority, to have regard to specific criteria when considering an application for a community broadcasting licence and provides:
‘In deciding whether to allocate a community broadcasting licence that is a broadcasting services bands licence to an applicant or to one of a group of applicants, the ABA is to have regard to:
(a) the extent to which the proposed service would meet the existing and perceived future needs of the community within the licence area of the proposed licence; and
(b) the nature and diversity of the interests of that community; and
(c) the nature and diversity of other broadcasting services (including national broadcasting services) available within that licence area; and
(d) the capacity of the applicant to provide the proposed service’
Reasons for the Decision
46 The information supplied by each of the applicants for a licence was considered with regard to the relevant categories of s 84(2) of the Act. The ABA issued to each of the interested parties an application form known as ‘ABA Form 32’ entitled ‘Application for a community broadcasting licence (in the broadcasting services bands)’. The form required an applicant to provide details of the applicant’s membership application form and membership fee, of the ‘applicant’s understanding of the existing and perceived future needs of that community in relation to community broadcasting’, and of the evidence in support of the applicant’s claim ‘to represent the above community interest’. The information sheet stated:
‘You should include a list of individual members, organisation or group members, and business members.’
47 Accompanying the ABA Form 32 was another document entitled ‘Part 3 Service Information’ which identified the existing services in the area and provided information known as the ‘Darwin Principles’. Such Principles described the information necessary to inform the ABA of the community needs to be addressed by the proposed community broadcasting service, and generally correspond to the specific matters which the ABA is to take into consideration in its assessment of a licence application made under s 84 of the Act. In completing its application form, GCB provided information in the manner sought in the Darwin Principles.
48 Under the heading ‘Nature and diversity of interests of the licence area community’ the Reasons refer to the fact that GCB claimed that it:
‘… represents the interests of our Christian “Community of interest” in the Gosford/Central Coast area on a non-denominational basis.’
It also noted that GCB:
‘… states its aims are to “transcend cultural, racial and social economical barriers by way or the Christian lifestyle and value system as a way of coping with the every day pressures of life”.’
49 The Reasons thereafter referred to the social problems which existed in the licence area community and noted that some of the programming proposed by GCB would be the same as that provided by the NCB in the Newcastle licence area.
50 The Reasons note that GCB had 1078 members in the licence area community, with a membership fee of $57.20. GCB had provided over 2000 letters of support, some from churches, school principals and ‘from people living in family households’. The Reasons stated:
‘The ABA is satisfied that GCB’s relatively large membership base of (1,078 members), its high number of letters of support (2,080 letters) and the number of letters of support from a range of heads of local churches demonstrate significant support for the service within the licence area community.’
51 The Reasons then stated that the ABA was satisfied that, on the evidence provided by GCB, it took reasonable steps to identify the needs that are particular to Christians in the licence area and that it would continue to do so. It found that GCB’s programming was ‘diverse’. It concluded that the Christian radio broadcasting service proposed by GCB ‘will meet an existing and a perceived future need of the community in the licence area to a significant extent.’
52 The ABA found that it was not satisfied that the need for the material PCR proposed to broadcast was not already available nor that the service would meet the existing and future needs of the youths in the Gosford licence area and concluded:
‘Further PCR did not demonstrate that it has adequate mechanisms in place to monitor and adapt according to changing needs or that it had strong support for its service. PCR has been broadcasting since 1993 and, while it claims to have support from community organisations, it has a limited number of members and provided only 4 letters of support and six supportive statutory declarations.’
53 The application of Radio Yesteryear was unsuccessful.
BASIS FOR JUDICIAL REVIEW
54 PCR claims that the ABA erred in its decision on 6 grounds as stated in its Amended Application. These are that the ABA:
‘1. failed to take into account relevant considerations and accordingly fell into jurisdictional error and/or as a result the Decision was an improper exercise of power;
2. took into account irrelevant considerations and accordingly fell into jurisdictional error and/or as a result the Decision was an improper exercise of power;
3. gave relevant considerations undue weight in a manner that was so unreasonable that no reasonable authority could have so exercised the power so as to make the Decision;
4. gave relevant considerations too little weight in a manner that was so unreasonable that no reasonable person could have so exercised the power so as to make the Decision;
5. made findings and factual conclusions, underlying the Decision, without proper evidentiary foundation; and
6. in making the Decision made a decision which was induced or affected by fraud.’
As stated above, ground 6 was abandoned by PCR.
i. Misconstruction of ‘proposed service’ in s 84(2)(a)
55 PCR submits that most of the letters of support relied upon by GCB related to the service provided by NCB which the ABA found was different to that proposed by GCB, but that the ABA took all of the letters into account in its finding that GCB had 2080 letters of support for its proposed service within the licence area. Accordingly, GCB claims that the Decision was made on the erroneous premise that the ‘support’ was for GCB, when it was support from members of NCB. This ground relies upon the premise that the term ‘proposed service’ must refer to the particular programming proposed by a particular applicant for a licence as discussed by Sackville J in Community Television Sydney Ltd v Australian Broadcasting Authority at [50].
56 PCR claims that at common law, the ABA’s misconstruction of the statute was an error of law and a jurisdictional error because it failed to take into account a relevant consideration. Additionally, PCR submits that there has been a breach of s 5(1)(d),(f),(j) of the ADJR Act.
ii. Extent to which ‘needs’ were met
57 PCR submits that the approach by the ABA relating to ‘needs’ was erroneous. It submits that the brief analysis as to the extent to which ‘needs’ within the Gosford community would be met by the services proposed to be provided by GCB was meaningless and that no real consideration has been provided of the statutory requirement of s 84(2)(a) of the Act. PCR claims that the ABA mistakenly considered letters of support as being relevant to the concept of ‘needs’, when in fact they did not address such issue. As such there is both common law jurisdictional error and a breach of s 5(1)(e) and 5(2)(b) of the ADJR Act. PCR relies upon the principles referred to in Elias v Commissioner of Taxation (2002) 123 FCR 499 at [62].
58 PCR submits that community needs means ‘the reasonable demands or expectations of the public’; see Silkman v Kendall [1982] 1 NSWLR 133 at 140; Toohey v Taylor [1983] 1 NSWLR 743 at 748-749. By analogy, it is submitted that such principle applies to the question of needs as contained in s 84(2)(a) of the Act.
59 PCR also submits that the ABA erroneously considered 95 letters of support written from persons residing outside the Gosford licence area and a further 25 letters which did not refer to ‘need’ but rather to ‘support’. Accordingly, the ABA considered ‘support’ rather than need and thereby committed jurisdictional error by taking into account an irrelevant consideration.
iii. No evidence to found Letters Finding
60 PCR submits that the finding concerning the number of letters was a finding by ABA as to a particular fact, namely that there were 2080 letters of support for GCB’s proposed service within the licence area community. The number of letters it is submitted was an essential element in the finding and not merely incidental to it because the ABA referred to it specifically as constituting a ‘high number’.
61 PCR submits that more than half of such letters could not have provided evidence of ‘need’ within the licence area because they were undated and were created prior to 22 November 2002, being the date of incorporation of GCB. Accordingly, they could only have been treated as letters of support for the radio station which then existed, namely NCB.
62 PCR submits that upon its analysis, the highest number of letters of support was approximately 800. Of these, 340 were ‘pro forma’ letters and did not evidence genuine need and 183 were written by persons who had previously supported GCB. Further, 95 letters of support, it is submitted, were solicited by GCB from persons beyond the licence area and could not therefore be taken to have been a genuine indication by those signing them of ‘need’ within the licence area. A further 25 letters did not refer to ‘need’.
63 PCR submits that the assertion of the 2080 letters in support by GCB was in reality no more than speculation, and that what was required was evidence which logically showed the existence of the facts relevant to the issue to be determined: see Telstra Corp Ltd v Hornsby Shire Council (2006) 146 LGERA 10.
iv. GCB’s membership numbers
64 PCR submits that ABA’s findings were based upon the number of members of GCB and that at the relevant time GCB did not have 1078 members as claimed. In fact, approximately 1000 of those members belonged to NCB. Accordingly, PCR claims that there was no probative value in the finding by the ABA relating to the number of members of GCB.
65 PCR claims that such finding was critical in the chain of reasoning which led to ABA’s decision, and relies upon the decision of the Full Court in Curragh Queensland Mining Limited v Daniel and Others (1992) 34 FCR 212 (especially at 220-221). It submits that there was no evidence upon which ABA could have reached its decision and it is therefore invalid according to the principles referred to in Australian Broadcasting Tribunal v Bond and Others (1990) 170 CLR 321 and in Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24.
v. Failure to consider diversity of interests
66 PCR submits that ABA misapplied the phrase ‘needs of the community within the licence area’ (see s 84(2)(a)) for ‘support’. The Reasons recorded that PCR, whilst claiming to have ‘support from community organisations’, had only provided four letters of support and six supportive statutory declarations. In contrast the ABA found the large membership base of GCB and letters of support ‘demonstrates significant support for the service within the licence area community.’ PCR submits that such finding demonstrates misapplication between the concepts of ‘needs’ and ‘support’ and that such misapplication was further compounded by the fact that the ABA accepted ‘that a significant minority of Christians in the area from different denominations find that those existing services do not meet their needs and have an interest in a service that specifically reflects Christian values and lifestyle.’
67 PCR also submits that the ABA was required by the Act to consider a finding of needs and that had it done so, it would have found that GCB’s programs would focus on a narrow type of Christianity as contained in its Ministry Business Plan. By focusing solely on support, ABA has committed jurisdictional error.
FINDINGS
68 Before proceeding to deal with the specific issues raised by PCR, the Court makes observations in relation to the tests to be applied when the decision of a tribunal is challenged, as in these proceedings.
(a) The ABA’s Reasons
69 In considering the approach to be taken by the Court to the Decision of the ABA, the Court must be satisfied that the ABA’s Reasons considered the relevant factual matters required by s 84(2) of the Act, and that the ABA did not take into account irrelevant considerations. The Court must also be satisfied that the power provided to the ABA has been exercised reasonably: see Kruger and Others v Commonwealth of Australia (1997) 190 CLR 1 at 36 per Brennan CJ. The process adopted by the ABA in its application of s 84(2) must be logical. In Hill v Green (1999) 48 NSWLR 161, Spigelman CJ said (at 174-175):
‘In my opinion, where a statute or regulation makes provision for an administrative decision in terminology which does not confer an unfettered discretion on the decision-maker, the court should approach the construction of the statute or regulation with the presumption that the Parliament or the author of the regulation intended the decision-maker to reach a decision by a process of logical reasoning and a contrary interpretation would require clear and unambiguous words.’
For similar observations, see Gamaethige v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 424 at [28]; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [145].
70 Upon reading the whole of the challenged decision, a Court must be satisfied that the Tribunal applied its mind to the correct issues, and decided those issues by findings based on evidence or material which was reasonable. In Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 the Court said at 287:
‘The Court will not be concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal’s thoughts: Lennell v Repatriation Commission (1982) 4 ALN N 54 (Northrop and Sheppard JJ); Freeman v Defence Force Retirement and Death Benefits Authority (1985) 5 AAR 156 at 164 (Sheppard J); Repatriation Commission v Bushell (1991) 13 AAR 176 at 183 (Morling and Neaves JJ). The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error: Politis v Commissioner of Taxation (Cth) (1988) 16 ALD 707 at 708 (Lockhart J).’
71 The approach to be adopted in cases of judicial review was also explained by the High Court of Australia in Australian Broadcasting Tribunal v Bond and Others where the Court said at [341]:
‘The expression “judicial review”, when applied to the traditional review functions of the superior courts in our system of justice, exercisable by means of the prerogative writs and the grant of declaratory relief and injunction, ordinarily does not extend to findings of fact as such. To expose all findings of fact, or the generality of them, to judicial review would expose the steps in administrative decision-making to comprehensive review by the courts and thus bring about a radical change in the relationship between the executive and judicial branches of government. Amongst other things, such a change would bring in its train difficult questions concerning the extent to which the courts should take account of policy considerations when reviewing the making of findings of fact and the drawing of inferences of fact.’
(b) Application of principles to judicial review
72 If the Court is satisfied that the ABA has misdirected itself in law or has failed to consider matters that it was required to consider, or taken irrelevant matters into consideration, its decision will have miscarried: see Buck v Bavone (1976) 135 CLR 110 (at 118-119 per Gibbs J). However, the failure of a decision maker to take into account an insignificant matter may not warrant a Court setting aside the decision: see Minister for Aboriginal Affairs and Anor v Peko-Wallsend Limited and Ors at 40. If the Court should conclude that there is inadequate factual material to support a finding by the ABA, it could lead to the inference that the Tribunal has applied a wrong test or has not otherwise satisfied the requisite matters which it was obliged to consider under s 84(2) of the Act: see The Queen v Australian Stevedoring Industry Board and Another: Ex parte Melbourne Stevedoring Company Proprietary Limited (1953)88 CLR 100 at 120. In Minister for Immigration and Multicultural Affairs v Rajamanikkam and Another [2002] 210 CLR 222, Gaudron and McHugh JJ said at page 241:
‘Whether a decision would or would not have been made without a particular factual finding depends on indications to that effect in the decision, the reasons for decision or the decision making process. And unless it is possible to say on a proper analysis of the decision, the reasons for decision or the decision making process that, had a particular finding not been made, the decision in question would not have been reached, it is, in our view, impossible to say that the decision was based on that finding.’
73 Identifying a wrong issue or asking a wrong question may be indicative of jurisdictional error: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351.
74 The above principles form the basis of the approach to be taken when considering challenges made under the ADJR Act and at common law.
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.’
78 From a reading of the Reasons, I consider that the ABA was well aware of the type of programs proposed to be broadcast by GCB, and that such programs to be provided by the ‘proposed service’ would contain local content suitable for the area. I do not accept the submission of PCR that the programs to be broadcast by GCB were ‘different’ to those of NCB. I consider that the programs would be similar although varied to incorporate local content.
79 I am satisfied that the particular programs proposed were those intended by GCB and that the ABA correctly directed itself to the requirements of s 84(2)(a) when it assessed the ‘proposed service’ of GCB. Whilst Sackville J in Community Television Sydney Pty Ltd v ABA observed that the s 84(2) ‘required the Authority to take the specified matters into account and give each of them weight as a fundamental element in making the determination.’ (see [5]), it would be wrong to construe the ABA’s decision in relation to the proposed service as having been determined merely upon the letters of support. Accordingly I reject the first ground of challenge.
Ground 2 – Extent to which ‘needs’ were met
80 Section 3 of ABA Form 32 identifies the matters to be considered by the ABA in its assessment of the several matters under s 84 of the Act. One of those matters is membership and the extent to which the programming would be relevant to the community. Section 3 includes the following:
‘The reference to ‘the community within the licence area’ means the whole of the community within a licence area. That is, the reference is not limited to the community interest which the applicant proposes to serve.
This does not necessarily mean that an applicant which proposes to serve a specific community interest will be regarded as meeting the needs of the community to a lesser extent than an applicant which proposes to serve the general community.
The assessment of the extent to which the proposed service would meet the needs of the community will be affected by the nature and diversity of the interests of that community and the nature and diversity of the other broadcasting services available within the licence area catering to those interests.’
81 The ABA accepted that GCB had a relatively large membership base and specifically referred to the 2080 letters. The ABA was entitled to have regard to the fact that such significant support, although mainly based on the programs provided by NCB, was equally applicable to such programs in the Gosford area. The ABA was satisfied that ‘a full-time Christian broadcasting service of the kind proposed by GCB will add to the diversity of services in the licence area and meet the needs of Christians in the licence area community not provided for by other broadcasters.’
82 The ABA did not merely consider the letters of support in relation to the question of ‘needs’. Rather, as is evident from the Reasons it considered whether the existing broadcasting schedule satisfied the needs of the community, especially the Christian community residing in the licence area. It concluded:
‘The ABA is also satisfied that the Christian broadcasting by community and national broadcasters does not meet these needs. In particular, the national broadcaster programming does not meet any perceived needs that are particular to the local area. It is satisfied that a full-time Christian broadcasting service of a kind proposed by GCB will add to the diversity of services in the licence area and meet the needs of Christians in the licence area community not provided for by other broadcasters.’
83 This passage demonstrates that whilst the ABA took note of the letters which had been written by persons who were desirous of having the licence issued to GCB, the ABA undertook its own assessment and did not reach its decision to award the licence to GCB merely upon the basis of the letters.
84 Similarly, it is apparent from the Reasons that there was no misconstruction of the criterion of ‘needs’ by the ABA in treating the letters of support as a substitute for the determination of needs. In particular the ABA took into consideration the estimated listening audience at ‘upwards of 40,000’ according to GCB’s estimates. It also observed that the demographic information ‘demonstrates significantly the very large Christian population who are resident in the [licence area community].’ The ABA referred to the data from the Hunter Valley Research Foundation which estimated 76.6% of the Gosford-Wyong population being identified as having Christian religious beliefs. The ABA noted that there was ‘no Christian broadcasting service licensed to provide a 24-hour service on seven days of the week to the whole licence area.’
85 However the ABA did not accept all of the submissions of GCB. It said:
‘The ABA accepts GCB’s evidence that a large percentage of the community in the Gosford licence area identified as having Christian religious beliefs. While this is relevant, on its own, it does not demonstrate that there a [sic] or interest for a radio broadcasting service for Christians in the licence are community. The ABA has also taken account of the findings of its own research into the perceived needs for Christian radio broadcasting services. That research indicates that a much smaller percentage of Australians perceive a need for such a service than would identify as being Christian. However, the research is also not determinative as it was not specific to the licence area and was conducted some time ago.
The ABA is satisfied that GCB’s relatively large membership base of (1,078 members), its high number of letters of support (2,080 letters) and the number of letters of support from a range of heads of local churches demonstrate significant support for the service within the licence area community.’
86 Having analysed the existing services available and the proposed mix of local programs to be provided by GCB and the similarity of some of the programs being offered by NCB, the ABA concluded that it was satisfied that procedures had been implemented to allow for people living within the Gosford licence area to participate in the selection and provision of programs and music. The Reasons state:
‘Following from this, the ABA finds that there was interest in the licence area community from Christians from a broad range of denominations in the service proposed by GCB. The ABA cannot find on the evidence that the interest creates an unmet need that is as high as that estimated by GCB. However it is satisfied that it is significant.’
87 In so far as 25 letters did not refer to ‘needs’, it was open to the ABA to construe such letters as indicating a demand for the programs to be provided by GCB. It is not necessary for such letters only to contain the word ‘need’ in order that the ABA could take them into consideration. Similarly, it was not necessary that the need for the service be evidenced only by persons resident in the licence area. The ABA was correct to take into account letters from persons who might spend much of their working time or even leisure time in the locality, being persons who would be able to enjoy the programs to be provided.
88 The Court is satisfied that PCR’s submission that ‘needs’ was misconstrued cannot be sustained. The ABA correctly addressed the issue of ‘needs’ as required by s 84(2)(a) of the Act.
Ground 3 – No evidence in relation to letters finding
89 By Mr Lindberg’s calculation there was a total of 2070 letters provided to the ABA. Of this number 183 were duplicates; 788 predated the incorporation of GCB; 25 did not refer to ‘needs’; and 95 were written by persons who resided outside the Gosford local licence area. Accordingly, 979 letters of support remain, 205 of which were undated. It is for this reason that PCR claims that the ABA’s finding that there was a high number of letters of support is erroneous.
90 The Reasons state, inter alia:
‘The ABA accepts GCB’s evidence that a large percentage of the community in the Gosford licence area identified as having Christian religious beliefs. While this is relevant, on its own, it does not demonstrate that there a [sic] need or interest for a radio broadcasting service for Christians in the licence area community. The ABA has also taken account of the findings of its own research into the perceived needs for Christian radio broadcasting services. That research indicates that a much smaller percentage of Australians perceive a need for such a service than would identify as being Christian. However, the research is also not determinative as it was not specific to the licence area and was conducted some time ago.
The ABA is satisfied that GCB’s relatively large membership base of (1,078 members), its high number of letters of support (2,080 letters) and the number of letters of support from a range of heads of local churches demonstrate significant support for the service within the licence are community.’
91 The ABA found as follows:
‘For these reasons the ABA finds that, taking account of the nature and diversity of interests in the licence area community, the Christian radio broadcasting service proposed by GCB will meet an existing and perceived future need of the Community in the licence area to a significant extent.’
92 In its actual finding (as distinct from its reasoning), the ABA did not refer to the number of letters but rather referred generally to the nature and diversity of the interests in the licence area community. Obviously those interests included the support from the Christian community. Further, the finding of the ABA did not undertake the analysis of the letters as Mr Lindberg has done. Nor do the Reasons suggest that it was the actual number of letters which was critical to its decision. Rather, they were indicative of the number of Christians who supported the service in the area.
93 Mason CJ in Australian Broadcasting Tribunal v Bond and Others referred to grounds of review in circumstances where there is no evidence to support a finding. He referred to the ‘no sufficient evidence’ test in the context of judicial review of findings of fact and stated at page 356:
‘Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference – in other words, the particular inference is reasonably open – even if that inference appears to have been drawn as a result of their illogical reasoning, there is no place for judicial review because no error of law has taken place.’
94 Although some letters were written prior to the incorporation of GCB, and others were from persons who were legally still ‘members’ of NCB, I do not think that this fact leads to the conclusion that there was no evidence upon which the ABA could rely in relation to the letters. There was no legal requirement that only members of GCB could support GCB’s application. The letters were provided by persons who wished to support the service, and whether they were actually ‘members’ of GCB was not a critical matter for determination.
95 I consider that the ABA was correct in considering that the letters that it had received indicated widespread support for GCB’s proposed service. Accordingly, the ABA did not err as alleged by PCR.
Ground 4 – GCB’s membership numbers
96 In NCB’s May 2004 newsletter, a ‘flyer’ had been included advising the members of NCB who lived in the Gosford area that their membership would be transferred to GCB, unless any indication was given to the contrary. The flyer stated:
‘Accordingly, we need to formally seek your agreement to transfer your membership from Newcastle Christian Broadcasters Limited to Gosford Christian Broadcasters Limited. This is necessary in order to show support for a full-time licence under the recently registered company name mad necessary to facilitate our application to the ABA which reflects the local community…
Unless you advise us in writing to the contrary by May 31, 2003 we will assume your agreement to transferring your membership to Gosford Christian Broadcasters Limited.’
97 The Court is satisfied, despite legal requirements concerning membership in the company constitutions, that approximately 1000 members of NCB wanted to transfer their membership to GCB.
98 It is apparent from Section 3 of ABA Form 32 that the ABA was concerned to know of the needs of the whole of the community within the licence area and of the level of support for an applicant for a community licence. The ABA invited applicants to provide information including ‘plans listing the actions to be undertaken by the organisation to recruit new members’, thereby suggesting that it was not concerned simply with existing membership, but of future membership. This is also evident from the information to provide information relating to ‘an indication of the opportunities that exist for non-members to become members’. Further, the ABA was specifically to have regard to an applicant’s organisational structure and whether the Constitution made provision for ‘open or nonexclusive membership’. Accordingly, the ABA was requesting applicants to inform it of the strength of the support for the proposed licence holder.
99 The ABA was entitled to pay regard to the support of the members of the Christian community who were members of NCB. The fact that the bulk of the 1078 of GCB members who resided in the Gosford locality had not signed transfers to legally assign their membership to GCB was not a material matter for the purposes of the consideration by the ABA. It was entitled to consider that the letters were supportive of GCB’s application, and this was the critical matter for consideration.
100 I am satisfied that there is no material error as claimed by PCR.
Ground 5 – Failure to consider diversity of interests
101 The Reasons noted that the ABA did not accept that the current broadcasting services did not meet the needs of Christians in the licence area in a general way. It continued:
‘The ABA does not accept on the basis of evidence provided by GCB that the current broadcasting services do not meet the needs of Christians in the licence area community in a general way. It is clear that a large percentage of those persons who identify as Christians who are living in the licence area listen to commercial community and national services and are satisfied with those services. However, it accepts on the evidence provided by GCB and in the letters of support that a significant minority of Christians in the area from different denominations find that those services do not meet their needs and have an interest in a service that specifically reflects Christian values and lifestyle.
… the ABA is satisfied from the evidence provided by GCB that is has implemented procedures that allow for people living within the Gosford licence area to participate in the selection and provision of programs and music.
Following from this, the ABA finds that there is interest in the licence area community from Christians from a broad range of denominations in the service proposed by GCB. The ABA cannot find on the evidence that the interest creates an unmet need that is as high as that estimated by GCB. However, it is satisfied that it is significant.’
102 I am satisfied from the above extract of the Decision that the ABA did take into consideration the type of programming that was likely to be broadcast by GCB. The programs broadcast by GCB would not be directed at only a narrow section of the followers of the Christian religion being those within the purview of GCB’s ‘Ministry Business Plan’. Such submission ignores the inquiry undertaken by the ABA as evidenced by the above extract, and the broad range of denominations to be served y the programs of GCB.
CONCLUSION
103 For the reasons considered above the Court finds that, even if an extension of time had been granted to PCR to file its application, the grounds of challenge relied upon by it could not have succeeded. In making its challenges to the Decision it is apparent that PCR has analysed the Decision minutely, and in a manner which does not accord with the appropriate tests, as referred to in Collector of Customs v Pozzolanic Enterprises Pty Limited; and Australian Broadcasting Tribunal v Bond & Others.
104 It follows from the above that the application for an extension of time in which to institute the proceedings cannot be accepted, and the application must be dismissed with costs.
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I certify that the preceding one hundred and four (104) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy |
Associate:
Dated: 20 December 2006
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Counsel for the Applicant: |
A. Leopold, R. McPherson |
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Solicitor for the Applicant: |
Tzovaras Legal |
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Counsel for the First Respondent: |
R. Wright SC, S. Phillips |
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Solicitor for the First Respondent: |
Australian Government Solicitor |
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Counsel for the Second Respondent |
I.E. Davidson, E. Ito |
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Solicitor for the Second Respondent |
Emil Ford & Co Lawyers |
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Date of Hearing: |
30 October - 2 November and 4 December 2006 |
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Date of Judgment: |
20 December 2006 |
