Um JUDGMENT No. 218/21 CATCHWORDS ADMINISTRATIVE LAW - Broadcasting - Applications for grant of radio licence - Previous decision of Tribunal set aside by Court - Applications by two applicants to re-open inquiry - Nature of material proposed to be presented at re-opened inguiry: new facts, material to correct or to elucidate previous findings of Tribunal, further material upon investigated facts - Extent of Tribunal's discretion concerning application. Administrative Decisions (Judicial Review) Act 1977 ss.5, 6 Broadcasting Act 1942 ss.17A, 17B, 17C, 22, 25, 25B, 83 NSW G.471 of 1987 OUR TOWN FM PTY LIMITED v_ AUSTRALIAN BROADCASTING TRIBUNAL & ANOR NSW G.492 of 1987 NEWCASTLE STEREO RADIO PTY LIMITED v AUSTRALIAN BROADCASTING TRIBUNAL & ANOR Wilcox J Sydney 23 October 1987 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. NSW G.471 of 1987 wwe www GENERAL DIVISION BETWEEN: OUR TOWN FM PTY LIMITED Applicant AND: AUSTRALIAN BROADCASTING TRIBUNAL First Respondent NEWCASTLE FM PTY LIMITED Second Respondent CORAM: WILCOX J PLACE: SYDNEY DATE: 23 OCTOBER 1987 MINUTES OF ORDER THE COURT ORDERS THAT: 1. Prior to making any further decision upon the grant of a licence to any applicant for an FM commercial radio licence to serve the Newcastle area in New South Wales the first named respondent receive and consider according to law such apparently reliable material which is relevant to the matters falling for decision 1n connection with the said grant, and which shall be submitted to it within such reasonable period as the said respondent may direct, and which: as" Note: (a) concerns events which have occurred since 10 April 1987, or (b) purports to correct or to elucidate Matters stated in the report of the said respondent of 10 April 1987; PROVIDED however that this order shall not, unless the said respondent otherwise determines, require the said respondent to receive and consider any material the nature of which is to effect a significant amendment of the application of any applicant for a licence. The costs of this Application be reserved. Settlement and entry of orders 1s dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION CORAM: PLACE: DATE: No. NSW G.492 of 1987 BETWEEN: NEWCASTLE STEREO PTY LIMITED OT Applicant AND: AUSTRALIAN BROADCASTING TRIBUNAL First Respondent NEWCASTLE FM PTY LIMITED Second Respondent WILCOX J SYDNEY 23 OCTOBER 1987 MINUTES OF ORDER THE COURT ORDERS THAT: Prior to making any further decision upon the grant of a licence to any applicant for an FM commercial radio licence to serve the Newcastle area in New South Wales the first named respondent receive and consider according to law such apparently reliable material which 1s relevant to the matters falling for Note: decision in connection with the said grant, and which shall be submitted to 1t within such reasonable period as the said respondent may direct, and which: (a) concerns events which have occurred since 10 April 1987, or (b) purports to correct or to elucidate matters stated in the report of the said respondent of 10 April 1987; PROVIDED however that this order shall not, unless the said respondent otherwise determines, require the said respondent to receive and consider any material the nature of which is to effect a significant amendment of the application of any applicant for a licence. The costs of this Application be reserved. Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION CORAM: PLACE: DATE: BETWEEN: AND: BETWEEN : AND: WILCOX J SYDNEY 23 OCTOBER 1987 No. NSW G.471 of 1987 OUR TOWN FM PTY LIMITED Applicant AUSTRALIAN BROADCASTING TRIBUNAL First Respondent AUSTRALIAN BROADCASTING TRIBUNAL Second Respondent No. NSW G.492 of 1987 NEWCASTLE STEREO RADIO PTY LIMITED Applicant AUSTRALIAN BROADCASTING TRIBUNAL First Respondent NEWCASTLE FM PTY LIMITED Second Respondent REASONS FOR JUDGMENT On 4 September 1987, upon the application of Our Town FM Pty Limited and Newcastle Stereo Radio Pty Limited, I set aside a decision of the Australian Broadcasting Tribunal, made on 10 April 1987, to grant to Newcastle FM Pty Limited a commercial radio licence for a period of five years to serve the Newcastle area in New South Wales. I directed that the applications made to the Tribunal by the six applicants for the licence be referred back to the Tribunal to be determined according to law. Questions have arisen as to the course now appropriate to be followed and fresh Applications have been filed by each of Our Town and Newcastle Stereo Radio for review, under the Administrative Decisions (Judicial Review) Act 1977, of a certain decision of the Tribunal and of its conduct in connection with the making of a decision. By consent the two Applications have been heard together. A few days after my earlier decision, on 14 September 1987, the solicitors for Our Town FM, Messrs Sly and Russell, wrote to the Tribunal requesting that, as part of the Tribunal's reconsideration of the matter, Our Town be afforded: "1. The opportunity to lead further evidence in relation to: (a) (b) (c) Our Town FM's proposed committee system and the practical working relationships between executives and committees; The integration of Our Town FM's program ingredients into its overall format; Further developments relating to Our Town FM's Application since April 1987. 2. The opportunity to obtain and inspect documents from Newcastle FM and its shareholders relating to the matters set out in 8.83(6)(c)(ii) of the Broadcasting Act 1942. 3. The opportunity to cross-examine several of Newcastle FM's witnesses in relation to the matters set out in s.83(6)(c)(11i) and in relation to: (a) (b) (c) (d) (e) (f£) Changes in the ownership and control of the shareholding of Newcastle FM since December 1986; The stability of the shareholding in Newcastle FM; The possibility of conflicts of interest arising from the holding of shares or interests 1n Newcastle FM by persons who hold shares or interests in other Newcastle commercial broadcasters; The apparent change in Newcastle FM's proposed format and target audience between thelodgement of Newcastle FM's application and interviews with the Board of Newcastle FM; The matters set out in paragraph 3.8 and 3.9 of the report; and Such other matters raised by Our Town FM in 1ts Application for Review as the Tribunal considers to be relevant. 4. The opportunity to make submissions on each of the above. 5. The opportunity to make submissions relating to the matter raised in paragraph 2.2 of the report." Reasons were given for that request. This letter was received by the Tribunal and circulated to the other licence applicants. The covering letter stated that: "Having regard to the judgement of the court, the Tribunal proposes to make a decision on the basis of the information now before it and write a report". But submissions were invited, "in relation to this course of action", by September 30. Messrs Sly and Russell responded on 22 September seeking clarification of the question whether the Tribunal had rejected the requests contained in their earlier letter. The Tribunal, by a letter transmitted on 24 September 1987, confirmed that it had done so. This is the decision now challenged by Our Town FM. On 1 October 1987 Messrs Sly and Russell again wrote to the Tribunal making a revised request. It is not necessary to say more than that the new request expanded the list of matters in relation to which they sought the opportunity to lead further evidence and that there was an addition to the list of topics for cross-examination. A bundle of documents was enclosed with the letter relating to the matters which, the solicitors contended, required further consideration? In the meantime Mr H G Solomon, solicitor, had been in contact with the Tribunal on behalf of Newcastle Stereo Radio. He received copies of the Sly and Russell letters of 14 and 22 September and a letter from the Tribunal dated 29 September inviting submissions by 5 pm on the following day as to the course which the Tribunal should take. He requested an extension of time, which was granted until 5 pm on 2 October 1987. On that day he responded, commenting in particular upon certain of the views expressed by the Tribunal in its earlier report and upon a change in the corporate structure of Hoyts Media Limited, the owner of 10.07% of the shares in Newcastle FM. He said that Newcastle Stereo Radio "wishes to cross-examine, call new evidence and make submissions in relation to matters and issues that arise (out) of these changed circumstances". He submitted that "the Tribunal has a duty to hear this evidence and these submissions". Reasons were given. The letter requested permission for Newcastle Stereo Radio to lead further evidence upon particular topics, to inspect certain categories of documents and to cross-examine Newcastle FM's witnesses on certain matters. It 1s not necessary to set out the requests in detail because, on 8 October 1987, Mr Solomon wrote again, requesting the Tribunal not to make any decision pending an amended letter. The Tribunal agreed to allow more time and an amended letter was submitted on 12 October 1987. id The letter of 12 October 1987 dealt with only two matters, described by Mr Solomon as being "essential to the consideration of the applications before the Tribunal". The first arose out of the announcement in the Commonwealth Budget that a tender system would operate in relation to the future grant of radio licences and the subsequent media statement by the Minister for Transport and Communications, Senator Fvans, justifying this change as one to "ensure an appropriate return to the community for the allocation of a scarce resource". Although it did not appear that the Government intended this new system to apply to the grant of the subject licence at Newcastle, Mr Solomon indicated that his client wished to propose a scheme whereby there would be a financial benefit to the community, by way of a payment into consolidated revenue, in the event of any significant change in the shareholding structure of Newcastle Stereo Radio in the first renewal period of the licence. Secondly, Mr Solomon referred to an incident alleged to have occurred during the July 1987 federal election, involving radio station 2HD, which he said bore upon the matter of undue influence. By a letter dated 12 October, but actually dispatched by facsimile transfer during the morning of 14 October, to both Sly and Russell and Mr Solomon -- and possibly also to the representatives of the other licence applicants -- the Tribunal indicated its position. The letter read: "On 17 September 1987 the Tribunal called for , submissions in relation to the course of action to be taken following the decision by Mr Justice Wilcox in the Federal Court on 4 September 1987. Submissions were initially requested by Wednesday 30 September, but an extension was granted until Friday 2 October. Submissions were received on behalf of 'Our Town FM' "Newcastle FM", "Newcastle Stereo' and 2KO Newcastle. Subsequently on 8 October "Newcastle Stereo' requested permission to submit an amended letter: the Tribunal decided to accept submission of the amendments. Having considered all the submissions the Tribunal has decided that having regard to the judgement of the Federal Court, 1t intends to make a decision on the basis of the information available to it at the time of the original report on 10 April 1987. On the basis of the information presented in the submissions, the Tribunal does not believe it 18 necessary to hold an additional hearing for purposes of oral evidence. Of the material submitted, the Tribunal does not consider that any of it constitutes (a) new material which could not have been presented before 10 April 1987 and (b) is sufficiently relevant to be taken into account in making a qualitative comparison between the applicants as required by the Federal Court decision." Newcastle Stereo Radio complains of this decision, as such. Our Town FM refers to it as conduct warranting review under s.6 of the Administrative Decisions (Judicial Review) Act. There has been some later correspondence between the respective solicitors for the two applicants and the Tribunal. It is not necessary to refer to this correspondence other than to note that, on 19 October, Messrs Sly and Russell sent to the Tribunal a batch of press clippings concerning the recent purchase by Hoyts Media of the radio interests previously owned by Northern Star Holdings Pty Limited. The letter" offered some comments upon the effect of that acquisition upon the application of Newcastle FM. The matters which Our Town FM wishes to have considered, or re-considered, by the Tribunal prior to its making the further decision required as a result of my order of 4 September 1987 fall into three categories: (a) Matters which have arisen since the Tribunal wrote its earlier report on 10 April 1987. An example cited 1s the changed position of Hoyts Media. (b) Matters which were before the Tribunal at 10 April but in relation to which, in Our Town FM's opinion, the Tribunal in its earlier report displayed some misapprehension of the facts. An example cited is the comment made in the report about the committee system proposed by Our Town FM. (c) Matters which were before the Tribunal at 10 April, and in connection with which no misapprehension 1s suggested, but as to which it now appears to Our Town FM that there ought to be a fuller investigation before the final decision is made. An example cited is a suggested technical e difficulty associated with Newcastle FM's proposed signal. As already indicated, the two matters about which Newcastle Stereo Radio seeks to put further material before the Tribunal have both arisen since 10 April. But there 15 a distinction between them. The first matter constitutes a modification of this applicant's proposal. The second matter arises out of events not involving that applicant but which are said to bear upon the suitability of another applicant. In Minister for Aboriginal Affairs v_ Peko-Wallsend Limited (1986) 66 ALR 299, the High Court of Australia considered the situation which arises where, after a report upon the matters emerging at a statutory inquiry but before the final determination of the matter, new information emerges. In that case the report was made by the Aboriginal Lands Commissioner, who was not the final decision-maker. [In the present case a report was made by the ultimate decision-maker, the Tribunal, but this report has been held not to be effective in law, in that it did not meet the standards prescribed by s.25B of the Broadcasting Act 1942. The two situations are not precisely the same but I accept the submission of counsel for the applicants that they are sufficiently analogous to make relevant the observations of the members of the High Court in that case. The overriding principle is that, at the time that the ultimate statutory decision 1s made, the decision-maker should have regard to the best and most up to date information which is available. * The requirement that the decision-maker give consideration to apparently reliable material relating to new, relevant events is but an application of that principle. 10. Peko-Wallsend also supports the view that the decision-maker should have regard to any apparently reliable, available material which suggests that the report submitted to him for his guidance in the decision-making process 15 erroneous: see Gibbs CJ at p.301, Mason J at pp.312-313, Brennan J at p.329, Deane J at p.332. I find particularly helpful the discussion of the decision-maker's duty which is contained in the reasons of Mason J: "The second question, which lies at the heart of this appeal, is whether the Minister 1s also bound to take into account submissions made to him which correct, update or elucidate the Commissioner's comments on detriment. Once it 1S accepted that the subject matter, scope and purpose of the Act indicate that the detriment that may be occasioned by a proposed land grant is a factor vital to the exercise of the Minister's discretion, it is but a short and logical step to conclude that a consideration of that factor must be based on the most recent and accurate information that the Minister has at hand. Considerable time may elapse between completion of the Commissioner's report and the date at which the Minister makes his decision; tin the present case it was well over one and half years. In that time there may be such a change of circumstances that the Commissioner's comments may no longer prove to be an accurate guide, there may be uncertainties or ambiguities in his comments that deserve clarification, or, as in the present case, even though there may have been no change of circumstances, interested parties may have become aware that the Commissioner's report omitted material matters on the subject of detriment. It would be a strange result indeed to hold that the Minister 1s entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, * inaccurate or misleading. In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to ll. him at the time the decision 1s made. But that principle is itself a reflection of the fact that there may be found in the subject matter, scope and purpose of nearly every Statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current materlal available to the decision-maker." The application of the principles enunciated in Peko-Wallsend leads inexorably to the conclusion that, before making its final decision upon the grant of the subject licence, the Tribunal 1s bound to take into account, firstly, any facts which have arisen since its previous consideration in April and, secondly, any matters put before it which serve to "correct, update or elucidate" anything which 1t may have said in its earlier report. In saying this, of course, I refer only to material which is, at least prima facie, reliable material upon a question relevant for its consideration in making its final decision; but 1t is not suggested that any of the material as to new events or to correct misunderstandings 1s either unreliable or irrelevant. In my view the Tribunal is required to consider the first two categories of material identified on behalf of Our Town FM. In relation to the third category, a different position obtains. These are matters which were considered at an earlier time and in respect of which the Tribunal is not even alleged to have evinced a misunderstanding. It must often happen that, in hindsight, the representatives of @ party feel that its case might have been presented better or more fully; but that would not normally entitle them to rm 12. insist upon the Tribunal re-opening matters which had earlier been considered. I think that the question of such a re-opening 1s entirely a matter for the Tribunal. The Tribunal will wish to make its decision upon the basis of the most reliable evidence and, 1f it were persuaded that an important matter had been so insufficiently investigated that it might thereby fail to make the most preferable decision, it would no doubt be anxious to set the matter right. In such a case the Tribunal would be entitled to re-open its inquiry into that matter. Indeed the obligation imposed upon the Tribunal by s.25 of the Act, to "make a thorough investigation" of relevant matters would seem to compel such a course. On the other hand, the Tribunal ought properly to be concerned about the possibility of repetition of matters already adequately considered by it, with consequential delay and expense to all concerned. A particular comment ought to be made about that part of Newcastle Stereo Radio's application which concerns the new proposal for a payment into consolidated revenue if there is a significant change in shareholdings. This is a new event, but it is a new event of a special kind: it 1s a variation in this applicant's own proposal. I do not read the decision in Peko-Wallsend as going so far as to say that a decision-maker is bound, after a preliminary report, to allow an applicant the opportunity to make a new case. In the present context there are provisions in both the Act (s8.17B, 17C) and the inquiry regulations (regs.4, 5, 6) dealing with the making of applications. These provisions assume a fully formulated 13. application at an early stage of the proceedings. Whilst I do not suggest that the Tribunal cannot, or should not, permit an amendment of the application. I agree with the view expressed by Muirhead J in TVW Enterprises Limited v Australian Broadcasting Tribunal & Ors (unreported, 7 February 1986) that the Tribunal 1s not bound, at an advanced stage of an inquiry, to allow a party to depart significantly from the case which 1t had previously put. It is a matter for the Tribunal alone to determine whether, in the circumstances of this case, it ought to allow Newcastle Radio Stereo to amend its application in the manner contemplated and to present material in connection therewith. I have so far referred only to the duty of the Tribunal to give consideration to particular matters. The submissions which were put to the Tribunal tended to assume that any consideration of those matters would necessarily include an oral hearing with cross~examination of witnesses. Since the commencement of the current inquiry regulations, the Australian Broadcasting Tribunal (Inquiries) Regulations, this assumption is unjustified. The regulations make discretionary both the questions whether a conference of the parties with the Tribunal should be held (reg.13) and whether there ought to be an oral hearing (reg.14). It will be for the Tribunal to determine what procedural steps ought to be taken pursuant to its obligation to give consideration to the matters I whave mentioned. The test is whether, in the view of the Tribunal, a conference or an oral hearing is "necessary or desirable". 14. No doubt the parties will put to the Tribunal their views upon that question. It will be for the Tribunal to consider their submissions and decide the course to be taken. It 18 not a matter for any direction by the Court, at least at this stage. In its letter dated 12 October 1987 the Tribunal referred to material which "is sufficiently relevant to be taken into account in making a quantitative comparison between the applicants as required by the Federal Court decision". The reference 1s apparently to the final step in the selection process required by s.83(9) of the Broadcasting Act. It may be that, in practical terms, this will remain the major matter for the Tribunal to consider, as it apparently was when the first report was written. But, as a matter of law, the whole of the previous decision was set aside. Any material relevant to the question whether any applicant fails to satisfy the requirements of s.83(6) is relevant to the Tribunal's future deliberations. I propose to make an order that, prior to making any further decision upon the grant of the subject licence, the Tribunal give consideration according to law to such material as may be placed before it (other than material involving a significant amendment of the application of any applicant, unless the Tribunal otherwise decides), being apparently reliable material relevant to any matter falling for its determination in connection with that decision, which corterns events which have occurred since 10 April 1987 or which are alleged to involve a correction or elucidation of matters studied in its report of that date. 15. As indicated to counsel at the hearing, I propose to reserve the guestion of costs for consideration at a later date. The situation is somewhat unusual. The applicants have obtained relief, but not to the extent sought by them in their Applications or at the hearing. The second respondent did not dispute that they were entitled to the particular relief which I have granted. To some extent the litigation may have been occasioned by misunderstandings. It may be that the appropriate course is to leave all parties to bear their own costs but I am very willing to reconsider that tentative view and to consider an application for an order for costs from any party who may wish to apply. I certify this and the fourteen (14) preceding pages to be a true copy of the Reasons for Judgment of his Honour Justice Wilcox. Associate: anne _ sete Date: 23 October 1987 NSW G.471 of 1987 Counsel for the Applicant: Solicitors for the Applicant: NSW G.492 of 1987 Counsel for the Applicant: Solicitors for the Applicant: NSW G.471 of 1987 and G.492 of 1987 16. Counsel for the First Respondent: Solicitors for the First Respondent: Counsel for the Second Respondent: Solicitors for the Second Respondent: Date(s) of hearing: Mr D K Catterns with Mrs I Ryan Sly and Russell Ms C F Weigall H G Solomon & Co Mr A Robertson Australian Government Solicitor Mr A P Whitlam QC with Mr K V Taylor Boyd House & Partners 21 October 1987