Federal Court of Australia

Australian National Imams Council Limited v Australian Communications and Media Authority (No 3) [2023] FCA 835

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application under rule 39.05(a) of the Federal Court Rules 2011 (Cth) to vary or set aside order 2 of the orders made on 11 August 2022 is dismissed.

2.    The applicant is to pay the respondents’ costs of the application as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    The applicant, the Australian National Imams Council Limited (ANIC), applied under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) for an order setting aside the decision of the first respondent, the Australian Communications and Media Authority (ACMA), made on 18 May 2021 to renew the community radio broadcasting licence of the second respondent, Muslim Community Radio Incorporated (MCR), and a declaration that MCR’s community radio broadcasting licence expired at midnight on 31 May 2021.

2    On August 2022, Jagot J dismissed ANIC’s application, holding that none of ANIC grounds of challenge to ACMA’s decision were established: Australian National Imams Council Limited v Australian Communications and Media Authority [2022] FCA 913 (PJ). At the same time, her Honour made an order that the applicant pay the respondents’ costs as agreed or taxed in line with the ordinary rule as to costs (the costs order).

3    Subsequently, ANIC sought revocation of the costs order and instead seeks orders that ACMA pay the applicant’s and second respondent’s costs as agreed or taxed, as it explains in its costs submissions at [44]. Oddly, neither an interlocutory application nor an affidavit were filed in support of the orders sought. Orders were however made by the primary judge, Jagot J, setting a timetable for the filing of submissions by the parties. As such, it appears that the parties and the Court proceeded on the basis that the applicant had made an oral application to vary or set aside the costs order and did not wish to lead any evidence in support of that application, but intended to make submissions only. In this regard, ANIC clarified in reply submissions that the application was made pursuant to r 39.05(a) of the Federal Court Rules 2011 (Cth) (FCR).

4    The application is opposed by ACMA. MCR made limited submissions but otherwise submitted to any orders that the Court considers appropriate.

5    For the reasons set out below, the application is without merit and must be dismissed.

2.    DISPOSITION OF THE APPLICATION

6    FCR r 39.05 provides that:

The Court may vary or set aside a judgment or order after it has been entered if:

(a)    it was made in the absence of a party; or

(b)     it was obtained by fraud; or

(c)     it is interlocutory; or

(d)     it is an injunction or for the appointment of a receiver; or

(e)     it does not reflect the intention of the Court; or

(f)     the party in whose favour it was made consents; or

(g)     there is a clerical mistake in a judgment or order; or

(h)     there is an error arising in a judgment or order from an accidental slip or omission.

7    Relevantly here, ANIC has identified its application as based upon r 39.05(a). That rule falls to be applied in this case in the context of final, as opposed to interlocutory, orders.

8    First, leaving aside interlocutory orders, as explained in Australian Securities and Investments Commission v ActivSuper Pty Ltd (No. 4) [2013] FCA 318 at [6]-[7] (Gordon J):

The power under r 39.05 is discretionary. The power is to be exercised with caution. As Young J observed in Paras v Public Service Body Head of the Department of Infrastructure (No 2) (2006) 152 IR 352 at [4], the power is “ordinarily only exercised in exceptional circumstances”: see Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 at 549-52; Dudzinski v Centrelink [2003] FCA 308 at [11]; McDermott v Richmond Sales Pty Ltd (in liq) [2006] FCA 248 at [25] cited by Young J.

Exceptional circumstances may be found to exist where there has been a failure to disclose material facts to the Court when application is made for the making of the order: Connect TV Pty Ltd v All Rounder Investments Pty Ltd (No 2) [2012] FCA 92 at [8].

9    The exceptional nature of the jurisdiction and the caution with which it must be exercised, bearing in mind the public interest in the finality of litigation, has been emphasised repeated in the authorities: see, e.g. Wati v Minister for Immigration and Multicultural Affairs [1997] FCA 1052; (1997) 78 FCR 543 at 549-552 (the Court); Deputy Commissioner of Taxation v Hua Wang Bank Berhad (No. 2) [2010] FCA 1296; (2010) 81 ATR 40 at [9] (Kenny J).

10    Secondly, in general the jurisdiction is exercised only where the applicant establishes that the failure to be heard on a question is through no fault on the applicant’s part: Wati at 550-553 (the Court). For example, Kenny J held in Berhad at [10] with respect to O 35 r 7 of the (then) FCR (which was relevantly in the same terms as r 39.05):

The proposition that, generally speaking, a court will not exercise the power conferred by O 35 r 7 unless the applicant can show that by accident without fault on his part he has not been heard is well established: see also Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 at 684; State Rail Authority of NSW v Codelfa Construction Pty Ltd (1982) 150 CLR 29 at 38; Registrar of Aboriginal Corporations v Murnkurni Women’s Aboriginal Corporation (1995) 137 ALR 404 at 406; Watson v Anderson (1976) 13 SASR 329 at 333; Rosing v Ben Shemesh (1959) [1960] VR 173 at 176; and Evans v Bartlam [1937] AC 473 at 480. The corollary of this is that “where a party has had full notice, and has had the opportunity of availing himself of the contest, he will be bound by the decision”: see Ratcliffe v Barnes (1862) 2 Sw. & Tr 486, 164 ER 1085 at 1087, applied by Payne J in Re Barraclough (dec’d) [1967] P1 at 10-11 (saying “[t]he fundamental principle therefore is that a party should be bound by the decision if he has had an opportunity to appear and oppose the proceedings”). See also Nicholson v Nicholson (1974) 4 ALR 212 at 218-9.

11    Thirdly, where the party seeks to vary or set aside orders on the basis that the orders were made in their absence, “will usually have to provide a proper explanation for that absence, and show that they have a case which is reasonably arguable: 3D Funtimes Ltd v Intellec Development Group Pty Ltd (No 2) [2011] FCA 407 at [6]”: Lal v Minister for Immigration and Border Protection (No 2) [2014] FCA 892 at [9] (White J).

12    Applying these principles, the application to vary or set aside the orders must be refused.

13    There is no evidence explaining why ANIC did not appear at the delivery of judgment at which its application was dismissed and the costs order was made against it, although ANIC asserts in its reply submissions that the Associate to the primary judge advised all parties that it was not necessary to attend delivery of the judgment. Even, however, assuming that the parties were so advised by the chambers of the primary judge, nothing conveyed by her Honour’s chambers meant that the parties could not attend judgment delivery if they so wished. In this regard, the fact that an adverse costs order was made against ANIC could not have been a surprise. It is in the nature of the adversarial system that there will be a successful and an unsuccessful party to litigation and the costs order made against ANIC involved no more than an application of the ordinary rule as to costs. If ANIC had wished to contend for some different result in the event that it was unsuccessful, it was open to ANIC to have made that submission at the trial or to have attended the delivery of judgment. This alone suffices to dismiss the application.

14    Further and in any event, I do not consider that any arguable case has been made by ANIC for any different order as to costs.

15    While the Court has a broad discretion under s 43(2) of the Federal Court of Australia Act 1976 (Cth) when determining appropriate costs orders, the discretion must be exercised judicially: Hughes v Western Australian Cricket Association (Inc) [1986] FCA 511 at 5; (1986) ATPR ¶40-748 at 48,136 (Toohey J).  Ordinarily costs follow the event, with the successful litigant being compensated in the sense of being indemnified against the expense to which she or he has been put in prosecuting or defending the action, as the case may be (often referred to as “the usual order as to costs” or “the ordinary rule”): see Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229 (Ruddock (No. 2)) at [11]-[12] (Black CJ and French J).  However, the ordinary rule may be departed from where special circumstances connected with the case justify a different order: Ruddock (No 2) at [15] (Black CJ and French J).  As the High Court recently explained in Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164:

24        It is well established that the power to award costs is a discretionary power, but that it is a power that must be exercised judicially, by reference only to considerations relevant to its exercise and upon facts connected with or leading up to the litigation [citing, among other authorities, Oshlack v Richmond River Council (1998) 193 CLR 72 at 96 [65], 120-121 [134]].  While the width of the discretion “cannot be narrowed by a legal rule devised by the court to control its exercise”, the formulation of principles according to which the discretion should be exercised does not “constitute a fetter upon the discretion not intended by the legislature”.  Rather, the formulation of principles to guide the exercise of the discretion avoids arbitrariness and serves the need for consistency that is an essential aspect of the exercise of judicial power.

25        A guiding principle by reference to which the discretion is to be exercised – indeed, “one of the most, if not the most, important” principle – is that the successful party is generally entitled to his or her costs by way of indemnity against the expense of litigation that should not, in justice, have been visited upon that party.  The application of that principle may be modified or displaced where there is conduct on the part of the successful party in relation to the conduct of the litigation that would justify a different outcome.  For example, a successful defendant may be refused its costs on the ground that its conduct induced the plaintiff to believe that he or she had a good cause of action.

(Emphasis added; some citations omitted.)

16    Generally speaking, as Black CJ and French J observed in Ruddock (No 2) at [15], “the circumstances in which a successful party is denied all or part of its costs have to do with its conduct of the proceedings”, such as circumstances where a party’s conduct at trial unreasonably prolonged the proceedings: see also Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 at 544 (Mason CJ). 

17    Bearing these principles in mind, ANIC contends that:

[ACMA’s] decision to renew … was expressly made on two bases articulated at [6.1] [of its reasons], that: (i) “in assessing a renewal application the ACMA must ask first whether the applicant is a suitable licensee under subsection 91(2)” of the Broadcasting Services Act and (ii) if the licenses was found to be suitable, ACMA must ask “whether it should exercise its discretion to refuse to renew the licence, having regard to the statutory criteria as contemplated by subsection 91(2A)” of the BSA.

The applicant ANIC commenced proceedings for judicial review proceedings on 22 June 2021 alleging error in the making of decision (ii) and, after discovery, amended its application to allege error in the making of decision (i).

On 6 June 2022, almost a year after these proceedings were commenced, the ACMA filed and served submissions for the final hearing on 12-13 July 2022. The ACMA submitted that the BSA did not require the ACMA, when determining a community radio license renewal application, to make either decision (i) or decision (ii) … Accordingly, it was submitted, the ACMA could validly renew MCR’s licence without making either decision.

The ACMA’s submissions were directly contrary to [6.1] of the ACMA’s decision to renew and, if correct, had the consequence that the decision to renew was wrong in law with respect to both decision said by [6.1] to be required.…

The Court accepted the ACMA submissions: see Judgement [56] and [66]-[69].

…

In this case, ANIC was not aware, and could not have been aware, until served with the ACMA submissions five weeks before the final hearing, that the ACMA intended to defend the application on the basis that [6.1] of its Statement of Reasons was wrong in law in both respects.

18    ANIC submits that, not only did ACMA give no notice of its intention to depart from the grounds for its decision to renew MCR’s community radio broadcasting licence, but “multiple things done and not done by the ACMA up until 6 June 2022 were consistent with both statements in [6.1] being correct”.

19    ANIC further submits that ACMA’s failure to give notice until 6 June 2022 that it intended to defend proceedings on the basis that the propositions in [6.1] of its reasons were wrong in law, had the result that:

(1)    ANIC commenced proceedings when it would otherwise not have been advised to do so; or

(2)    having commenced proceedings, ANIC continued the proceedings when, if it had known well before 6 June 2022 that ACMA asserted that the two propositions in [6.1] were wrong in law, ANIC would have been advised to seek leave to discontinue the proceedings.

20    Those submissions, with respect, fail to raise any arguable case.

21    First, ANIC has chosen not to lead any evidence at all in support of its submission as to what it would or would not have done, or have been advised, if ACMA had notified ANIC at any earlier time of its changed position with respect to the source of its power to renew MCR’s licence.

22    Secondly, it is far from self-evident that ANIC would have discontinued the proceedings if advised earlier of ACMA’s position. To the contrary, despite having five weeks to consider the matter before it went to trial after being advised of ACMA’s position, ANIC nonetheless chose to press ahead with the judicial review proceeding. As such, as ACMA submits, the submission that ANIC would have discontinued the proceedings if it had known these matters sooner is simply not borne out by the facts.

23    Thirdly, as ACMA submits:

[T]he fact that the applicant contends now that it would have withdrawn upon being given notice of the ACMA’s position – but did not when it actually was on notice – reinforces that the costs order in favour of the ACMA was appropriate. Had the applicant considered that it had minimal prospects of success by reason of the ACMA’s legal contentions, then it should have withdrawn its application and saved five weeks’ worth of its own and the respondents’ costs of preparing for hearing. It chose not to. It should, therefore, bear the cost of that decision.

24    Fourthly, ANIC made submissions before the primary judge at trial to the effect that it was inappropriate for ACMA, among other things, to have failed to draw the Court’s attention to instances where it had apparently changed its mind about statutory construction issues between the making of the decision and the hearing (PJ[7]). However, Jagot J found, that ACMA’s submissions were confined (appropriately) to issues of statutory construction and, as her Honour indicated during the course of the hearing, ANIC’s complaints were unfounded because, among other things:

(2)    … ACMA was bound to inform me of its position in respect of the statutory construction issues consistently with the views it in fact held at the time of the hearing;

…

(4)    the fact that ACMA may have held one view at the time of the decision about the proper construction of the Broadcasting Services Act and another view at the time of the hearing is not material to the validity of its decision – its decision either is or is not valid;

(5)    ACMA was not bound to inform me that it held one view about the proper construction of the Broadcasting Services Act at the time of the decision and another view at the time of the hearing given that:

(a)    ANIC had focused on these apparent differences in its submissions, written and oral;

(b)    while statutory construction issues are contestable, there is ultimately only one correct construction upon which a court must settle; and

(c)    ACMA was not suggesting that the statutory construction issues were incontestable. It was proposing that there was a coherent statutory scheme within which ANIC’s propositions of construction were irreconcilable; and

(6)    ACMA performed precisely the role that I would expect an administrative authority of its kind to perform in a hearing of this kind. It did so efficiently, effectively and appropriately, consistent with its obligations to assist the Court to resolve the dispute as quickly, inexpensively and efficiently as possible, and according to law.

25    In this regard, as ACMA submits, it is:

entirely within the ordinary course of litigation for parties legal arguments to evolve and develop over time, before presentation of their final position at hearing. The applicant could reasonably be expected this to be the case, in circumstances where it has been on notice for the duration of the proceedings that the ACMA disputed its construction [of] the [Broadcasting Services Act].

26    It follows that the gravamen of ANIC’s complaints with respect to the costs order have already been determined adversely to it by the primary judge. That being so, even if ANIC had appeared at the delivery of judgment and made submissions to the effect made on this application as to why no order as to costs should be made against it, it would have been bound to fail. Her Honour’s findings already made it clear that there was nothing about ACMA’s conduct in the proceeding which could have warranted it being deprived, as the successful party, of its costs, let alone justifying an order that ACMA should pay ANIC’s costs.

3.    CONCLUSION

27    It follows that the application to vary or set aside the order as to costs made on 11 August 2022 must be dismissed with costs.

Associate:

Dated:    21 July 2023