Deveson, I. v Australian Broadcasting Tribunal - [1991] FCA 633

Re: IVAN DEVESON; PETER RITCHIE; MICHAEL ROBINSON; PETER DAY; ROBERT CAMPBELL;
PHILIP SAGGERS; BERNICE ROGERS; CHRISTOPHER CHAPMAN; MICHAEL HARRISON; SEAN
O'HALLORAN and KEVIN CAMPBELL
And: AUSTRALIAN BROADCASTING TRIBUNAL
No. G632 of 1991
FED No. 633
Administrative Law
104 ALR 331
(1991) 32 FCR 124
(1991) 25 ALD 695 (extracts)

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Davies J.(1)

CATCHWORDS

Administrative Law - Inquiry by Australian Broadcasting Tribunal - summonses to produce documents - whether authorised by section under which they purported to be issued - whether summonses so wide as to be beyond power - whether documents summonsed must be relevant to issues the subject of the Inquiry.

Broadcasting Act 1942 (Cth) - ss.21, 89X

HEARING

MELBOURNE (heard in Sydney)

#DATE 25:10:1991

Counsel for the applicants: Mr W.H. Nicholas QC and Miss P. Bergin

Solicitors for the applicants: Mallesons Stephen Jaques

Counsel for the respondent: Mr P. Roberts and Mr M. Minehan

Solicitor for the respondent: Australian Government Solicitor

ORDER

The summonses of 24 September 1991 issued by the Respondent and addressed to the Applicants be set aside.

The Respondent pay the Applicants' costs of the application.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This application is brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth) seeking orders of review with respect to summonses issued under s.21(2) of the Broadcasting Act 1942 (Cth) ("the Act").

The Australian Broadcasting Tribunal ("the Tribunal") is conducting an inquiry into what has been described as The Seven Network Reconstruction. The Channel 7 Network has come under the control of receivers, Messrs Crawford and Allpass, following the failure of the Qintex Group of companies. A number of banks are owed a great deal of money. Three companies, Television Holdings Ltd, The Seven Network Ltd and West Central Seven Ltd are seeking, with the support of the banks and of the receivers, to take over several broadcasting licences.
The Tribunal, having received applications from the three companies I have mentioned and from certain individuals for the approval of the acquisition of prescribed interests in the relevant commercial television licences, initiated an Inquiry under the Act. In giving notice of the Inquiry, the Tribunal stated the issue to be inquired into in these terms:-

"The issue at the inquiry will be whether or not the Tribunal should approve the transactions by which the applicants have acquired their prescribed interests having regard to the criteria specified in the Act."

This statement was in such general terms that it scarcely satisfied the requirements of Regulation 9(3)(b) of the Australian Broadcasting Tribunal (Inquiries) Regulations which requires that the notice of the commencement of an Inquiry "specify the issues to be considered in the Inquiry". In any event, no more detailed issues have been specified.

I need not set out the criteria to which the Tribunal will have regard in the Inquiry save to say that it appears from a letter dated…

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: [1991] FCA 633
Decision Date: 25 OCTOBER 1991

CaseChat Overview and Summary

The applicants in this case, Deveson, sought a judicial review of the summonses issued by the Australian Broadcasting Tribunal (ABT). The applicants were required to produce documents under the Broadcasting and Television Act 1991. The dispute centred on the legality and scope of the summonses issued by the ABT, questioning whether they were authorised by the relevant section of the Act and whether the summonses were excessively broad, exceeding the Tribunal's power. Additionally, the applicants argued that the documents requested had to be pertinent to the issues under investigation.

The central legal issues before the court were whether the summonses were indeed authorised by the section under which they were issued and whether the scope of the summonses was beyond the ABT's power. Furthermore, the court had to determine if the documents requested were relevant to the matters being investigated by the ABT. The applicants argued that the summonses were overly broad, extending beyond the permissible limits set by the statute, and that the documents requested were not necessarily relevant to the subject matter of the inquiry.

The court found that the summonses were not authorised by the relevant section of the Act and were indeed excessively broad, thereby exceeding the ABT's power. The court further held that the documents requested had to be relevant to the issues under investigation, which was not the case here. Consequently, the summonses were set aside, and the ABT was ordered to pay the applicants' costs of the application. This decision underscored the importance of the statutory authority for administrative actions and the necessity for such actions to be within the scope of the power granted by statute, particularly in relation to the relevance of the documents requested in inquiries.

Orders

Orders of the court

The summonses of 24 September 1991 issued by the Respondent and addressed to the Applicants be set aside.

The Respondent pay the Applicants' costs of the application.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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