FEDERAL COURT OF AUSTRALIA

Bankstown City Radio Co-operative Ltd v Australian Communications and Media Authority [2008] FCA 89

BANKSTOWN CITY RADIO CO-OPERATIVE LTD v AUSTRALIAN COMMUNICATIONS AND MEDIA AUTHORITY

NSD 1686 OF 2007

SACKVILLE J

19 february 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The Applicant pay the 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                     On 20 December 2007, I delivered a judgment dismissing an application by the applicant (‘BCR’) for an order quashing a decision made by the respondent (‘ACMA’): Bankstown City Radio Co-Operative Ltd v The Australian Communications and Media Authority [2007] FCA 2053 (‘the Judgment’).  In that decision, ACMA refused to grant BCR’sapplication for renewal of its community broadcasting licence.

2                     In the Judgment, I addressed the role played by ACMA in the proceedings.  I noted (at [4]) that there was no contradictor in the proceedings, other than ACMA itself.  I also noted that ACMA had appreciated that there was a possible difficulty by reason of the general principle that a statutory body whose decision is impugned should not became a protagonist in the litigation since there is a risk that performing such a role will endanger the Authority’s impartiality: The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, at 35-36, per curiam.

3                     As I record in the Judgment (at [5]), prior to the hearing before me ACMA sought the guidance of the Court as to the approach it was appropriate to take in the proceedings.  Lindgren J, who heard ACMA’s application, did not think it appropriate to provide the guidance in the terms it sought.  However, his Honour directed ACMA to notify the Commonwealth Attorney-General of the proceedings and of the nature of the issues that it raised, in order to assist the Attorney-General in deciding whether or not he wished to intervene.  In the event, the Attorney-General declined ACMA’s invitation to intervene in the proceedings.

4                     I made these observations about ACMA’s part in the proceedings (at [6]):

‘I think it was not inappropriate for ACMA to assist the Court by explaining the bases for its decision not to renew BCR’s community broadcasting licence and by briefly addressing the arguments advanced by BCR.  To the extent that this involved ACMA acting as a contradictor by opposing the relief sought by BCR, I think the course was justified by the unusual circumstances.  I appreciate that if BCR’s arguments were to succeed, its application for renewal of the community broadcasting licence would probably be remitted to ACMA for further consideration …  Nonetheless, I think it was consistent with the Hardiman principle for ACMA to take the measured approach it adopted in the proceedings.  I should add that [counsel for BCR] did not object to ACMA taking the approach it did at the hearing’.

5                     I directed the parties to make submissions as to costs. 

6                     ACMA acknowledged in its submissions that the usual consequence of the failure by a statutory body authority to observe the Hardiman principle is the rejection of any application for a costs order against the Authority’s unsuccessful opponent: cf Community Television Sydney Ltd v Australian Broadcasting Authority (No 2) (2004) 136 FCR 338, at 341-342 [13]-[15], per Sackville J.  However, ACMA contended that in circumstances where a statutory authority participates in proceedings in an appropriate manner, it should be treated as an ordinary party so far as costs are concerned.  Accordingly, since in the Judgment I found that ACMA’s conduct was appropriate to the circumstances of the case, there was no reason why costs should not follow the event.

7                     In Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666, Brennan J, the Tribunal appeared by counsel as respondent in the appeal before the High Court to contest the appellant’s case.  Brennan J observed (at 681-682) that:

‘Where curial proceedings arise out of a matter which is contested between parties appearing before a tribunal, it is not ordinarily appropriate for the tribunal to appear to contest the curial proceedings brought by one of the parties before it … But where the proceedings before the Tribunal are not inter partes, and where the Attorney-General cannot or does not intervene to represent the public interest … and neither a law officer nor a public official is heard by the court …, it may be desirable that the tribunal should appear by counsel to make such submissions as it thinks calculated to assist the court and, in an appropriate case, to argue against the applicant’s case’.

His Honour considered that the Tribunal had acted properly, in the absence of the Attorney-General, in appearing by counsel as a party to respond to the appellant’s contentions.  For that reason, it was appropriate to treat the Tribunal as an ordinary party in relation to costs.

8                     It seems to me that, in the particular circumstances of the present case, the role played by ACMA was appropriate.  Pursuant to a direction of the Court, it gave the Attorney-General the opportunity to participate in the proceedings, but the Attorney-General declined to do so.  It seems to me that ACMA’s submissions were calculated to assist the Court and, insofar as its submissions argued against the case brought by BCR, ACMA went no further than was necessary.

9                     In its written submissions, BCR contended that, although ACMA acted properly in approaching the Attorney-General to participate in the proceedings, it could have invited the two organisations which had sought temporary community licences in the Bankstown area to act as contradictors.  However, BCR never suggested during the proceedings that this course should be followed.  Nor is there anything to indicate that either of the organisations would have had the resources or interest to act as a contradictor in proceedings not directly involving them.  Moreover, for one of those organisations in effect to defend ACMA’s conduct, while ACMA was ruling on its application, would create problems of perception similar to those that the Hardiman principle is designed to avoid.

10                  For these reasons, I think that ACMA should be treated, in the circumstances of this case, as an ordinary litigant who has succeeded in resisting a claim by an applicant.  Accordingly, BCR should be ordered to pay ACMA’s costs of the proceedings.

Associate:

Dated:         19 February 2008