Bond & Ors v Australian Broadcasting Tribunal - [1988] HCATrans 225

IN THE HIGH COURT OF AUSTRALIA

Office or--the Registry

Sydney No Sl02 of 1988
B e t w e e n -

ALAN BOND

First Applicant

BOND MEDIA LIMITED

Second Applicant

BOND CORPORATION HOLDINGS LIMITED

Third Applicant

QUEENSLAND TELEVISION LIMITED

Fourth Applicant

CONSOLIDATED BROADCASTING SYSTEM
(WA) PTY LIMITED

Fifth Applicant

NORTHWEST RADIO PTY LIMITED

Sixth Applicant

DARWIN BROADCASTERS PTY LIMITED

Seventh Applicant

Bond(2)

and
AUSTRALIAN BROADCASTING TRIBUNAL

Respondent

WILSON J

BRENNAN J

DAWSON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 6 OCTOBER 1988, AT 2.02 PM

ClT29/1/VH

6/10/88

MR A.B. SHAND, QC:

May it please the Court, I appear with my

learned friend, MR D.K. CATTERNS, for the applicants.
(instructed by Blake Dawson Waldron)

MR P. ROBERTS:

If Your Honours please, I appear with my learned

friend, MR L.S. KATZ, for the respondent. (instructed
by Australian Government Solicitor)

WILSON J:	Mr Shand?
MR SHAND:	Your Honours the application is brought supported by

the affidavit of Mr C.J. Conolly, which appears at
page 137 of the appeal papers.

WILSON J: Yes, we have had an opportunity of reading the

papers, I think, Mr Shand.

MR SHAND:

If Your Honour pleases. May I inquire, Your Honour,

whether, in fact, the Court has received and has had
the opportunity of addressing attention to the
supplementary affidavit of Mr Conolly also?

WILSON J: Yes, we have had.

MR SHAND:

There is only one additional matter of material that

I should draw attention to, Your Honours, and that is
this: reference is made in the papers to the
applications made by these applicants to obtain
particulars of matters involved in the inquiry which
gives rise to the proceedings before the - that is,
the inquiry by the Broadcasting Tribunal. In due
course, after the judgments were delivered by the
Full Court of the Federal Court, from which this
application emanates, Mr Justice Wilcox of the
Federal Court heard argument upon the subject of particulars and delivered judgment in respect of
that matter as recently as this morning.
For completeness, at least, Your Honours, we
would seek to hand up facsimile copies of the judgment
delivered only this morning.

BRENNAN J:

Does it say anything of relevance to the present

application, Mr Shand?

MR SHAND:

At least this, Your Honour, that His Honour's views

as to the entitlement to particulars, or perhaps I
should say, the disentitlement to particulars -
that was the thrust of the judgment - were expressed
as potentially variable according to whatever view
might be expressed by this Court.

ClT29/2/VH	2	6/10/88
Bond(2)

MR SHAND (continuing):

So that it was with full awareness,

of course, of the decision of the Full Court but
with an eye to the possibility that his reasoning
may be inappropriate should this Court grant leave
to appeal and express different views of the matters
involved to the Full Federal Court.

WILSON J:

So as one might expect, His Honour has proceeded

on the basis of the judgment 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] HCATrans 225
Decision Date

CaseChat Overview and Summary

Bond Corporation Holdings Limited and other related companies (the applicants) sought leave to appeal to the High Court of Australia from a decision of the Full Court of the Federal Court of Australia. The dispute concerned an inquiry conducted by the Australian Broadcasting Tribunal (the respondent) into the television licences held by the applicants. The applicants had sought particulars of the matters involved in the Tribunal's inquiry, and a judgment on this issue had recently been delivered by Wilcox J of the Federal Court.

The primary legal issue before the High Court was whether the applicants were entitled to obtain particulars of the matters under consideration by the Australian Broadcasting Tribunal during its inquiry. This entitlement was to be assessed in light of section 17C of the Broadcasting Act, which governs the conduct of "Ordinary Inquiries" by the Tribunal when the exercise of its substantive powers is contemplated. The applicants argued that their television licences were at stake, indicating that the Tribunal's substantive powers were indeed in contemplation.

The applicants sought to hand up a supplementary affidavit and a facsimile copy of the judgment delivered by Wilcox J that morning. They explained that Wilcox J's views on the entitlement to particulars were potentially variable depending on the outcome of the present application for leave to appeal to the High Court. The applicants' counsel indicated that they would not dwell at length on this supplementary material but offered it for the Court's consideration, particularly regarding the remarks made by Wilcox J concerning the entitlement, or disentitlement, to particulars.

Orders