Mid Coast Radio Pty ltd v Australian Broadcasting Tribunal

[1983] FCA 370

IN THE FEDERAL COURT OF AUSTRALIA	1
1
NEW SOUTH WALES REGISTRY	1
1
GENERAL DIVISION	1 No. G403 of 1983

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BETWEEN :	MID-COAST RADIO PTY. LIMITED Applxant
-	AND :	THE AUSTRALIAN BROADCASTING TRIBUNAL Flrst respondent

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-

-	AND :	COMMERCIAL RADIO COFFS HARBOUR LIMITED	I
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Second respondent
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ORDER

Judge maklng orders: Beaumont, J.

Date orders made:	15 December, 1983.
Where made:	Sydney.

THE COURT ORDERS THAT:

1. I order that, upon concluslon of the addresses by the

parties before the consolidated inquiry descrlbed in the applic-

ation filed herein on 14 December, 1983, all further proceedmgs

in the said inquiry be stayed until further order of the Court.

2. I direct that:

(a) the applicant flle and serve a statement of Its claim

on or before 23 December, 1983;

(b) the respondents flle and serve any defence on or before

5 January, 1984;

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!

the applicant flle any reply on or before 12 January,

1984;

the parties file and serve on or before 19 January,

1984 any affldavit to be relled on by any of them;

the parties exchange on or before 26 January, 1984

coples of any documents to be tendered by any of them in addltion to any documents annexed or exhiblted to any affldavit flled.

3 . I order that costs of this motlon be costs In the

application for review.

4.	I	reserve liberty to any party to apply on two days'
notice.
5.	I	fix the final hearing of the appllcation for revlew

to commence on 13 February, 1984.

6. I fix 9.30 a.m. on 8 February, 1984 for mention of the

matter and for the return of any subpoenae.

IN THE FEDERAL COURT	OF AUSTRALIA	)
1

SOUTH NEW WALES REGISTRY 1 1

DIVISION GENERAL 1 No. G403 of 1983

BETWEEN :	MID-COAST RADIO PTY. LIMITED Appllcant
AND :	-	THE AUSTRALIAV BROADCASTING TRIBUNAL First respondent

.

- AND : COMMERCIAL RADIO COFFS HBP5OUR LIMITED Second respondent

CORAM: BEAUMONT, J.

DATED : 15 December, 1983.

REASONS FOR JUDGLYENT

In these proceedlngs, whlch were lnstltuted yesterday,	1 s made for a stay of the hearing now proceeding that course, the second respondent opposes a stay in the terms application (but virtually concluded) before the respondent Trlbunal.
sought but provided an early hearing date 1s fixed, the second
respondent does not ob~ect to an order being made which, whllst
not staying the hearing before the Trlbunal, stays the makmg of
any decision by the Trlbunal on the appllcations before it,
pending the determlnatlon of thls applicatlon for ~udicial renew

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Yesterday, I heard argument as to where the balance of

convenience lies In the motlon to stay the hearlng before the

Tribunal. I have now also read the affidavit of Mr. Wlllnott

sworn on 13 December, 1983 so as to be able to form a vlew as to

firstly, the nature of the issues llkely to arise in the appllc-

ation for review and secondly, the likely hearing time requlred

for that applicatlon.

A perusal of that affidavit suggests that although the

applicatlon for ludicial review wlll lnvolve, in the main, legal questions, It is likely that it wlll be necessary that the Judge

entertainlng the application be taken to a large body of background

materlal In order that he may properly understand the settlng m

which the application is made; also, discretlonary defences may

well be ralsed which involve factual matters. It is also possible

that other parties now before the Trlbunal wlll seek leave to be

joined in these proceedings. On that footing, it is unlikely, in

my view, that the flnal hearlng of the application for ludiclal revlew

would take less than a week. It 1 s also unhkely, in my vlew, that

the parties wlll be ready for a final hearlng In less than a month.

I am further of the view that pleadlngs should be ordered. Agalnst

that background, I turn to conslder the appllcatlon for a stay of

the hearlng before the Trlbunal. As a general rule, the Court,

in the exercise of Its jurlsdictlon under the

Administrative Decisions (Judlclal Revlew) Act 1 s reluctant to

interrupt proceedlngs pending before another body or tribunal

(cf. - Lamb v. - Moss, unreported Full Federal Court 12 October,

1983). Further, I thlnk that there is conslderable force in the

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submission put by WC. Bennett, Q.C. on behalf of the second

respondent that, provided a stay of the decislon ltself 1s

granted (and that decision 1s not expected before next March),

no substantlal hardshlp will be suffered by the applicant If

the hearing proceeds to a concluslon, which 1s anticipated to

be tomorrow, provided that the applicant is not thereby pre-

judiced ln the event, for example, that orders 3 or 4 sought in

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the application for an order to review are made. No doubt, ln

the event of order 3 or order 4 belng made, the Court could, if

necessary, give a consequentlal directlon that any party be per-

mitted to re-open its case before the Tribunal for that purpose:

this would appear to deal with the sltuation adequately.

I propose to decline to grant an immediate stay but to grant:

a deferred stay, to take effect upon the conclusion of addresses

before the Tribunal.

I propose to make the following orders and dlrectlons:

1. I order that, upon conclusion of the addresses by the

parties before the consolidated lnquiry described In the appllcatlon

filed herein on 14 December, 1983, all further proceedmgs in the

said inquiry be stayed until further order of the Court.

2. I direct that:

(a) the appllcant file and serve a statement of its claim

on or before 23 December, 1983;

(b) the respondents flle and serve any defence on or before

I 5 January , 1984 ;

(C) the applicant flle any reply on or before 12 January,

1984;

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(a)	the parties file and serve on or before 19 January, 1984 any affidavit to be relied on by any of them;
(e)	the parties exchange on or before 26 January, 1984

coples of any documents to be tendered by any of them in addition to any documents annexed or exhlbited to any affidavit filed.

3 . I order that costs of thls motion be costs in the

application for review.

4.	I	reserve liberty to any party to apply on two days'
notice.
5.	I	fix the final hearing of the applicatlon for revlew

to commence on 13 February, 1984.

6. I fix 9.30 a.m. on 8 February] 1984 for mention of the

matter and for the return of any subpoenae.