FEDERAL COURT OF AUSTRALIA

Australian Communication & Media Authority v Radio 2UE Sydney Pty Ltd
[2009] FCA 214

AUSTRALIAN COMMUNICATION AND MEDIA AUTHORITY v RADIO 2UE SYDNEY PTY LTD

NSD 1841 of 2008

RARES J

6 MARCH 2009

SYDNEY

THE COURT:

1.                  Grants leave to the Communications Law Centre to intervene, if it chooses, to appear by its legal practitioner and to make oral and written submissions.

2.                  Directs that the solicitors for the applicant serve the Communications Law Centre with these orders and all evidence and submissions presently filed in the proceedings on or before 9 March 2009.

3.                  Directs the respondent to file and serve any further evidence and submissions upon which it proposes to rely on or before 13 March 2009.

4.                  Directs the Communications Law Centre if it decides to intervene, to file and serve all written submissions which it proposes to make on or before 17 March 2009.

5.                  Directs the parties to file and serve any submissions in reply on or before 19 March 2009.

6.                  Reserves any issue as to the costs of any intervention.

7.                  Stands the matter over to 20 March 2009 for hearing at 10.15 am.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1                     These are the first proceedings brought by the Australian Communications and Media Authority, the statutory regulator, for the imposition by the Court of civil penalties in respect of contraventions to the Broadcasting Services Act 1992 (Cth).  The respondent, Radio 2UE Pty Ltd, and the Authority have cooperated in preparing agreed facts, evidence and submissions to assist the court.  They have also agreed on the amount of penalty that they seek the court to consider imposing.  That co-operation between the parties is commendable, and I intend no criticism of them. 

2                     However, when reading through the materials provided to me for the purposes of the hearing which had been fixed for 20 February 2009, I became concerned that, because these are the first proceedings under the Act, there may be considerations in fixing the penalty that could be better advanced by the assistance which an adversarial hearing could offer.  The parties have a common interest in pursuing their agreed course in seeking to persuade me of the appropriateness of their suggested penalty.  I raised the fact that it may be appropriate for a suitable person to be notified so that that person could intervene under O 6 r 17 of the Federal Court Rules, with a view to testing the parties’ proposed course.

3                     The parties have considered the issues which I suggested were of potential concern to me in assessing their jointly proposed penalty and they remain of the view that the proceedings can be heard and determined without any third party giving assistance.  I have had both written and oral submissions from the parties that it would not be necessary, or of any particular assistance, for an intervenor to be permitted to participate in the final hearing.

4                     The parties have properly drawn attention to the role of the Authority as the statutory regulator, with responsibility to select and determine appropriate levels of penalty to suggest to the Court.  They have also highlighted that, having heard my concerns about matters arising in the materials before me on the previous occasion, they have turned their minds to addressing those matters.  Indeed, 2UE proposes to file further evidence and submissions directed to the matters which I raised.  The parties argued that this is a case no different from others in which the Court has been called upon for the first time to impose civil or other penalties under legislation, and that it is unnecessary to cause anyone to intervene.

5                     I have considered all of the material and arguments which the parties have put before me, but remain of the view that this is a matter in which there may be assistance gained from a different point of view being put responsibly in order to assist in the determination of the proper level and range of penalty for the conduct complained of.

6                     The Authority has identified the Communications Law Centre as an organisation that potentially could provide assistance were it to choose to intervene.  The Authority has put on evidence that the Centre is an independent non-profit public interest centre, specialising in media communications and on-line law and policy, based at the University of Technology, Sydney.  Its director is Professor Michael Fraser.  The Authority’s solicitors contacted Professor Fraser after the last hearing and inquired whether the Centre would have an interest in intervening in the proceedings to assist the court.  Professor Fraser was provided with one of the affidavits in the proceedings and a transcript of the hearing on 20 February.  He indicated that the Centre would have an interest in the proceedings and that he would be available to appear at the hearing now fixed for 20 March 2009. 

7                     Having regard to all of the circumstances and the further submissions of the parties, I am of opinion that it is likely that I may be assisted by appropriate oral and written submissions that may be put by a legal practitioner representing the Centre:  see Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd (2004) ATPR 41-993 at [15] to [18] per Branson, Sackville and Gyles JJ. 

8                     Accordingly I am of opinion that it is appropriate to make the orders with a view to 2UE being able to provide further evidence, and the parties, and, if there is one, the intervenor, further submissions.

Associate:

Dated:         10 March 2009