Swan Television and Radio Broadcasters Ltd v Australian Broadcasting Tribunal

[1985] FCA 442

NOT INTENDED FOR DISTRIBUTION

IN THE FEDERAL COURT	)
OF AUSTRALIA	)
WESTERN AUSTRALIA	) No. WA G59 of 1984
DISTRICT REGISTRY	)

GENERAL	DIVISION	1	I ,'
I '
B E T W E E N :

S W TELEVISION AND RADIO

BROADCASTERS LIMITED \

Appellant

and

AUSTRALIAN BROADCASTING TRIBUNAL

First Respondent

and

WEST COAST TELECASTERS LIMITED

Second Respondent

and

PERTH TELEVISION LIMITED

Third Respondent

and

WESTERN TELEVISION LIMITED

Fourth Respondent

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.I

I

TOOHEY	CORAM:	J	5	L
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-- p ,)

4 July 1985	- 4	-"'J	-I.	: .	,
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EX TEMPORE REASONS FOR JUDGMENT ,\

By this motion, the appellant seeks a stay of a decision

made by the Australian Broadcasting Tribunal ordering the

production of documents.

2 .

The first questlon that arises 1s the power of the Court

to grant a stay. I do not understand the Court's power to be in

issue, though some question has arlsen as to whether the

appropriate exercise of jurisdiction is under 6.15 of the

Administrative Decision6 (Judicial Review) Act 1977 or under 0 . 5 2

r.17 of the Federal Court Rules. That is a matter which I do not

think I need to resolve with any sort of finality this evening.

It would seem to me that 6.15 is wide enough to include

an application for a stay following upon a decision of the Court

in respect of an application under the Judicial Review Act though

I am not to be taken a6 expressing a final view on that. In any

event, I am of the opinion that the principles to be applied are much the same, whether the Court is being asked to grant a stay

under 6.15 or a stay under 0.52 r.17. In which case what the

Court is being asked to do is to stay proceedings under the judgment appealed from.

I accept that the principles to be applied are not

identical with tho6e to be applied in the case of an application

for an injunction. One perhaps is not directly concerned with

balance of convenience. On the other hand it seems to me that one

must look at the position of the parties to the appeal - in the case of the appellant, to decide what weight should be given to the argument that if there is no stay then the appeal is rendered

nugatory, or on the part of the respondents that to grant a stay

places them under a great disadvantage in what must be recognised

as a continuing inquiry. This IS rather different from the

ordinary situation in whlch a court 1 s being asked to grant a stay

in respect of a matter which has been finally concluded by the

court, subject, of course to any appeal that there may be.

These are questions which are not easy for me to resolve

on the material presently available, or perhaps more accurately,

without a more detailed consideration of the material. But I must

give weight to the submission by counsel for the appellant that a

disclosure of the material to certain persons to whom it has taken

objection, is fraught with some risk of prejudice to the

appellant, not by reason of a conscious breach of the undertaking

that surrounds access to those documents, but simply because the persons in question will find it difficult to rid their minds of any information which they receive through access.

On the other hand, I have to give weight to Mr. Owen's

submission that without access on the part of all the persons whom

his client has nominated, its task of presenting its case to the

Tribunal 16 made the more difficult, not only as against those who

oppose the grant of a third licence but as against those who seek

to be the successful applicant m respect of such a grant. In the

end, it seems to me that the matter is capable of resolution, at

least for a time, by reason of the timetable which the Tribunal

has set for itself. It seems clear that the question of the

disclosure or non-disclosure of documents, or more accurately, the

consequences of disclosure or non-disclosure, are not likely to

arise during the present sitting of the Tribunal and at the

earliest would arise when the Tribunal resumes on 29 July. It may

not be for some time thereafter. In saying that, I do not lose

siuht of Mr. Owen's submlsslon that the matter is not to be judged

solely In terms of the day on which the matter surfaces before the

Tribunal, but that his client needs time to consider the impact of

the documents in order to prepare its case for presentation.

At this stage I am in no position to say when, if a stay

is granted, the appeal will be heard. Certainly steps can be

taken to attempt to secure an expedited hearing, but as of this

evening I cannot say anything to counsel regarding the likely date

upon which the appeal will be heard. That, to my mind, is an

important consideration because if I were to grant a stay until

the hearing of the appeal and the appeal could not be heard for

some weeks, or perhaps not until the next sitting6 of the Full

Court in Western Australia which I think is some time in

September, it may be that events in the Tribunal will have overtaken the parties.

For that reason, I am of the opinion that the

appropriate course for me to take is along these lines. It is to

recognise that to refuse a stay completely may cause injustice to

the appellant, an injustice which, if the appeal is successful,

may not be capable of being remedied; but at the same time to

recognise the position of the respondents, particularly of the

first, second and fourth respondents, and not to shut them out

from any chance of obtaining access to the material until the

appeal is heard. Having regard to those cansideratlons, I am of

the opinion that there should be a stay but it should not be in

terms until the hearing of the appeal. It should be a finite

period, I would think 14 days, during which time the question of

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1.

the hearing of the appeal can be explored and also more will be

known of the course of the mqulry before the Tribunal. If at

that time (and I put these matters only in a tentative way) it

seems that the appeal can be heard quite quickly, and in

particular if it appears that the appeal can be heard before the issue of disclosure or non-disclosure becomes a live issue before the Tribunal, then the arguments for continuing the stay until the

hearing of the appeal mlght well be compelling. If, on the other

hand, at that time it seems clear that an appeal cannot be heard

for some weeks, then the problems that beset the second and fourth

respondents might well be	so persuasive as to justify	no extension
of the stay at that stage.

What I propose is that there be a stay. I am of the

opinion that the appropriate form of order is not that the

Tribunal be restrained but rather that there be a stay of the

decision of the Tribunal made on 14 March that the appellant

produce certain documents, that that stay be until a date which I

fix as 14 days hence, being 18 July, subject to my checking my own

availability and also the availability of counsel. I take it from

what Miss Chong told me that the Tribunal will not be sitting on

that day.

Another reason for granting a stay in finite terms is to

permit the special interest parties an opportunity to be heard.

So far as they are concerned, I must treat the application today

as ex parte, I regard this as an additional reason for not

granting a stay, at least so far as affects those parties, until

the hearing of the appeal. I direct that notice of today‘s order

be given to those speclal Interest groups.

The form of stay I shall not attempt to formulate in

running, but it is a stay which is intended in no way to

interfere with the access presently offered by the appellant,

whether that access has been taken up, as it has at least in one

case, or not taken up, as I understand is the position at least in

the case of one of the other respondents.

Trying to draw these matters together, there will be a

stay for a finite period to one or other of the dates I shall

discuss with counsel in a moment. There will be a stay expressed in terms to exclude the access presently offered by Swan. There will be an order that the appellant give notice of the adjourned

hearing and serve a copy of the order made today on the special

interest groups, which is a term I use as a compendious way of

referring to those other persons not presently before the Court.

I certify that this and the five

preceding pages are a true copy

of the Ex Tempore Reasons for

Judgment herein of his	Honour	~	~~
Mr .-Justice Toohey.

v Associate