Australian Broadcasting Tribunal v Bond - [1988] FCA 431

CATCHWORDS

BROADCASTING AND

TELEVISION Tribunal - scheme of-the legislation - scope of “substantive

-

Australlan

Broadcasting

Tribunal - statutory provisions establishins functions of .:’
I.

powers” of the Tribunal listed in S. 17A of the Broadcastin . .

i Act 1942 - power of Tribunal to vary or revoke con ltlons 4 F

E e n c e and to suspend or revoke a licence on specified grounds - whether inquiry was authorised by sub-s. 17C(1) of fhe Broadcasting Act-- whether the word “pkoposes“ in sub-s.

17C(I) required the Tribunal to form initial intention to

exercise substantive powers in order to have power to hold
inquiry - construction of sub-s. 17C(1) - scope of Tribunal’s powers to hold an inquiry under sub-s. 17C(3) of the

Broadcasting Act - other means of obtaining information
available to the Tribunal - legislative history of Tribunal‘s

inquiry power - whether Tribunal had properly formulated a

proposal within the meaning of sub-s. 17C(1) of the I .
I ’
Broadcasting Act.

!

Administrative Decisions (Judicial Review) Act 1977

Broadcasting and Television Act 1942
Broadcasting Act 1942: ss. 17A, 17C(1), 17C(3), 85, 88
Australian Broadcasting Tribunal (Inquiries) Regulatlons

AUSTRALIAN BROADCASTING TRIBUNAL V ALAN BOND, BOND MEDIA

i .

LIMITED, BOND CORPORATION HOLDINGS LIMIl’ED, QUEENSLAND .. .
TELEVISION LIMITED, CONSOLIDATED BROADCASTING SYSTEM (W.A.)

PTY. LIMITED, NORTHWEST RADIO PTY. LIMITED and DARWIN
BROADCASTERS PTY. LIMITED
G1030 of 1988
COURT: LOCKHART, WILCOX and PINCUS JJ.

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10 AUGUST 1988
SYDNEY

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! Io'

IN THE FEDERAL COURT OF AUSTRALIA )
)

NEW SOUTH WALES DISTRICT REGISTRY ) No. G1031 of 1988
)

DIVISION GENERAL )

I

ON APPEAL FROM A SINGLE JUDGE OF THE
FEDERAL COURT OF AUSTRALIA

BETWEEN : AUSTRALIAN BROADCASTING TRIBUNAL
Appellant

- AND : ALAN BOND ..
first Respondent

BOND MEDIA LIMITED !
Second Respondent

BOND CORPORATION HOLDINGS LIMITED
Third,,Respondent

QUEENSLAND TELEVISION LIMITED
fourth Respondent

CONSOLIDATED BROADCASTING SYSTEM
7W.A.) PTY. LIMITED
Fifth Respondent

NORTHWEST MD10 PTY. LIMITED
Sixth Respondent

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DARWIN BROADCASTERS PTY. LIMITED
Seventh Respondent

JUDGES MAKING ORDER: LOCKHART, WILCOX AND PINCUS JJ.
DATE ORDER MADE: 10 AUGUST 1988
WHERE ORDER MADE: SYDNEY

, I

i

I’ ,

MINUTE OF ORDER

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THE COURT ORDERS THAT:
1. The appeal be allowed.

2 .

The declaration and the order no. 3 made by the trial
Judge on 10 June 1988 be set aside.
3 . The matter be remitted to the trial Judge or other Judge
of this Court to determine the questions that remain in
the proceedlngs including the question of costs of the
*

hearing before the trial Judge. * ” .’

4 . The respondents pay the costs of the appellant of the

I .

appeal.

- NOTE: Settlement and entry of orders is dealt with in Order

36 of the Federal Court Rules.

i

IN THE FEDERAL COURT OF AUSTRALIA )

1 .*
NEW SOUTH WALES DISTRICT REGISTRY

) NO. G1031 Of 1988
)

DIVISION GENERAL ) , r

ON APPEAL FROM A SINGLE JUDGE OF THE
FEDERAL COURT OF…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1988] FCA 431
Decision Date: 10 Aug 1988

CaseChat Overview and Summary

In the Federal Court of Australia, Lockhart, Wilcox, and Pincus JJ. heard an appeal by the Australian Broadcasting Tribunal (the appellant) against a decision made by Morling J. that an inquiry held by the Tribunal was unauthorised by the Broadcasting Act 1942 (the Act). The appeal was allowed, and the matter was remitted to the trial judge to determine the remaining questions, including the question of costs of the hearing before the trial judge. The respondents were ordered to pay the costs of the appellant of the appeal.

The appeal raised an important question concerning the powers of the Tribunal to hold inquiries under Division 3 of Part II of the Act. The Tribunal had decided to hold an inquiry into issues raised by certain material relating to the payment of $400,000 in settlement of a defamation action by Sir Joh Bjelke-Petersen against Queensland Television Limited (one of the respondent companies). The respondents sought to challenge the authority of the Tribunal to hold the inquiry, contending that the Tribunal had not properly formulated a proposal within the meaning of sub-s. 17C(1) of the Act.

The court found that the primary judge's interpretation of the relevant statutory provisions was incorrect. The court held that the Tribunal was not required to form an intention to exercise a substantive power before it could hold an inquiry under sub-s. 17C(1) of the Act. Instead, the court found that the Tribunal could hold an inquiry when it contemplated the exercise of a substantive power, without having to form a preliminary view that the power should be exercised. The court also found that the Tribunal did not need to delegate the power to make a proposal to exercise a substantive power to another person.

The court held that the inquiry was unauthorised by the Act, and the appeal was allowed. The matter was remitted to the trial judge to determine the remaining questions, including the question of costs of the hearing before the trial judge. The respondents were ordered to pay the costs of the appellant of the appeal.

Orders