Sunshine Coast Broadcasters Pty Ltd v The Australian Communications and Media Authority [2012] FCA 1205

FEDERAL COURT OF AUSTRALIA

Sunshine Coast Broadcasters Pty Ltd v The Australian Communications and Media Authority [2012] FCA 1205 Citation: Sunshine Coast Broadcasters Pty Ltd v The Australian Communications & Media Authority [2012] FCA 1205

Parties: SUNSHINE COAST BROADCASTERS PTY LTD (ACN 009 719 528), SOUTHERN CROSS MEDIA SERVICES PTY LTD (ACN 010 711 056), SOUTHERN CROSS MEDIA AUSTRALIA PTY LTD (ACN 109 243 110), SOUTHERN CROSS MEDIA AUSTRALIA HOLDINGS PTY LTD (ACN 110 357 036) and SOUTHERN CROSS MEDIA GROUP LTD (ACN 116 024 536) v THE AUSTRALIAN COMMUNICATIONS AND MEDIA AUTHORITY

File number: VID 1155 of 2011

Judge: KENNY J

Date of judgment: 2 November 2012

Catchwords: STATUTORY INTERPRETATION — Broadcasting Services Act 1992 (Cth) — Functions under sections 24, 25 and 26 — Authority received request to vary a licence area plan under section 26(2) — Whether decision not to propose draft variation to licence area plan performed function under section 26(2) — Decision performed function incidental or conducive to function under section 26(2) — Decision performed function under section 10(1)(s) of the Australian Communications and Media Authority Act 2005 (Cth). ADMINISTRATIVE LAW — Judicial review of decision incidental to a function under the Broadcasting Services Act 1992 (Cth) — Authority received request to vary a licence area plan under section 26(2) — Section 27(1) required provision for wide public consultation when varying a licence area plan — Decision not to propose a variation — No public consultation conducted — Whether wide public consultation required — Whether authority misdirected itself — Whether failure to take account of a relevant consideration — Whether irrelevant considerations taken into account — Wide public consultation not required — No related basis for review — Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5(1)(b), 5(1)(e), 5(1)(f), 5(2)(a), 5(2)(b). ADMINISTRATIVE LAW — Judicial review of decision incidental to a function under the Broadcasting Services Act 1992 (Cth) — Authority received request to vary a licence area plan under section 26(2) — Authority applied policy not to vary licence area plans without good reason — Whether decision made in accordance with policy without regard to the merits of the case — Where policy required consideration of merits — Where authority had regard to merits — No basis for review — Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5(1)(e), 5(2)(f). ADMINISTRATIVE LAW — Judicial review of decision incidental to a function under the Broadcasting Services Act 1992 (Cth) — Authority received request to vary a licence area plan under section 26(2) — Authority considered there was no sufficient reason to propose a variation — Whether decision so unreasonable that no reasonable person could have so decided — Where authority considered request and conducted additional research — Where authority's conclusion open on the evidence it considered — Decision not unreasonable — Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5(1)(e), 5(2)(g). PRACTICE AND PROCEDURE — Leave to amend application for judicial review after hearing — Applicants proposed to add two further grounds of review — Whether new grounds futile — Whether policy requiring consideration of merits was erroneously applied to preliminary decision — Whether consideration of merits at preliminary stage impermissible — Where no express statutory considerations — Where merits assessment at preliminary stage not extraneous to subject matter, scope and purpose of statute — Open to authority to consider merits at preliminary stage — New grounds not fairly arguable — Leave not granted.