Case: Community Television Sydney Ltd v Australian Broadcasting Authority and Another [2004] FCA 443 ; (2004) 136 FCR 316
Outcome: cited
Section 5 of the Act makes provision for the role of the ABA. In Community Television Sydney Ltd v Australian Broadcasting Authority and Another [2004] FCA 443 ; (2004) 136 FCR 316 Sackville J at [317] observed that s 5(1)(b)(i) of the Act: '... required the Authority to use its functions and powers in a manner which, in its opinion, "will produce regulatory arrangements that are stable and predictable."' 34 The ABA submits that judicial review proceedings under the ADJR Act are not ' at large ' in relation to the time in which an application must be brought. I consider that the time limits provided by the ADJR Act further the object of certainty and reliability of administrative decisions which are necessary for stable and predictable regulatory arrangements. As such, they contribute to the efficiency of the broadcasting industry. 35 The failure of PCR to communicate in any way with GCB for more than 12 months following the date of the grant of the licence or to warn it of an impending challenge has led GCB to believe that no challenge would be made after the 28 period had expired. Further, the reasons advanced by Mr Lindberg for the failure to lodge the application even within a reasonable time after 22 February 2005 (being the expiration of the 28 day period), is not satisfactorily explained. PCR approached the issue in a leisurely manner, not foreshadowing its possible challenge. There was nothing in the advice received by Mr Lindberg in February 2005 which suggested that an open ended period would be allowed and considered appropriate by the Court. Further he was aware that a time limit for the commencement of proceedings existed. The claimed lack of funds is inadequate to explain way at least a warning to GCB and the ABA of a possible challenge could not have been given. 55 PCR submits that most of the letters of support relied upon by GCB related to the service provided by NCB which the ABA found was different to that proposed by GCB, but that the ABA took all of the letters into account in its finding that GCB had 2080 letters of support for its proposed service within the licence area. Accordingly, GCB claims that the Decision was made on the erroneous premise that the ' support ' was for GCB, when it was support from members of NCB. This ground relies upon the premise that the term ' proposed service ' must refer to the particular programming proposed by a particular applicant for a licence as discussed by Sackville J in Community Television Sydney Ltd v Australian Broadcasting Authority at [50]. 56 PCR claims that at common law, the ABA's misconstruction of the statute was an error of law and a jurisdictional error because it failed to take into account a relevant consideration. Additionally, PCR submits that there has been a breach of s 5(1)(d),(f),(j) of the ADJR Act. 79 I am satisfied that the particular programs proposed were those intended by GCB and that the ABA correctly directed itself to the requirements of s 84(2)(a) when it assessed the ' proposed service ' of GCB. Whilst Sackville J in Community Television Sydney Pty Ltd v ABA observed that the s 84(2) ' required the Authority to take the specified matters into account and give each of them weight as a fundamental element in making the determination. ' (see [5]), it would be wrong to construe the ABA's decision in relation to the proposed service as having been determined merely upon the letters of support. Accordingly I reject the first ground of challenge. 80 Section 3 of ABA Form 32 identifies the matters to be considered by the ABA in its assessment of the several matters under s 84 of the Act. One of those matters is membership and the extent to which the programming would be relevant to the community. Section 3 includes the following: 'The reference to 'the community within the licence area' means the whole of the community within a licence area. That is, the reference is not limited to the community interest which the applicant proposes to serve. This does not necessarily mean that an applicant which proposes to serve a specific community interest will be regarded as meeting the needs of the community to a lesser extent than an applicant which proposes to serve the general community. The assessment of the extent to which the proposed service would meet the needs of the community will be affected by the nature and diversity of the interests of that community and the nature and diversity of the other broadcasting services available within the licence area catering to those interests.' 81 The ABA accepted that GCB had a relatively large membership base and specifically referred to the 2080 letters. The ABA was entitled to have regard to the fact that such significant support, although mainly based on the programs provided by NCB, was equally applicable to such programs in the Gosford area. The ABA was satisfied that ' a full-time Christian broadcasting service of the kind proposed by GCB will add to the diversity of services in the licence area and meet the needs of Christians in the licence area community not provided for by other broadcasters. '