News Corporation Ltd, Re
(1987) 15 FCR 227(1987) 70 ALR 419
Re: In the matter of a reference to the Federal Court of Australia by the Australian Broadcasting Tribunal pursuant to Section 22B of the Broadcasting and Television Act 1942 in relation to applications to the Australian Broadcasting Tribunal for approval of transactions relating to the ownership and control of radio and television licences by The News Corporation Limited, Network Ten Holdings Limited and others.
Court:
Judges:
Bowen C.J.
Lockhart J.
Beaumont J.
Judgment date: 20 January 1987
ORDER
The answers to the following questions of law arising in the proceedings before the Australian Broadcasting Tribunal which were referred pursuant to s.22B of the Broadcasting and Television Act 1942 are as stated below:
QUESTION:
- (i)
- Whether, in considering whether TNCL has a shareholding interest such that it would be deemed to be in a position to exercise control of NTHL and its subsidiaries pursuant to sections 90E and 92B of the Act, the premiums paid on the shares referred to in paragraphs 9(b) and 10(b) above (of the Special Case) are to be included in the calculations of:
- (a)
- "an amount equal to the value of the shares", or
- (b)
- "an amount equal to the value...of the person's interest in the shares",
- within the meaning of paragraphs 90(3)(b) and 91(3)(b) of the Act.
ANSWER: Yes.
QUESTION:
- (ii)
- Whether sections 90E and 92B exhaustively define the meaning of "being in a position to exercise control, directly or indirectly, of a company" within the meaning of sub-sections 90G(1) and 92D(1) and with the consequence that the Tribunal is bound to find that the foreign persons are not in a position to exercise control, directly or indirectly, of the licensee companies.
ANSWER: Sections 90E and 92B do not exhaustively define the meaning of "being in a position to exercise control directly or indirectly of a company" within the meaning of sub-sections 90G(1) and 92D(1).
It is unnecessary to deal with the latter part of Question (ii).
QUESTION:
- (iii)
- Whether, as at 5 September 1985, by reason only of:
- (a)
- Article 98(2)(b) of the Articles of Association of NTHL; and/or
- (b)
- Clause 4 of the Memorandum of Association of NTHL and Article 8 of the Articles of Association of NTHL;
- TNCL was in a position to exercise control of NTHL.
ANSWER: Yes.
The determination of the remaining questions in the Special Case be stood over, liberty to restore reserved.
The parties who made applications to the Australian Broadcasting Tribunal for approval of the transactions referred to in the Special Case and who were represented before this Court pay to Actors Equity of Australia, the Australian Journalists' Association and the Australian Broadcasting Tribunal their costs of the reference to date.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.