Western Television Ltd v Australian Broadcasting Tribunal

[1986] FCA 403

IN THE FEDERAL COURT OF AUSTRALIA	)
NEW SOUTH WALES DISTRICT REGISTRY	) No. G364 of 1986
GENERAL DIVISION

BETWEEN:

WESTERN TELEVISION LIMITED

Appllcant

AND :

AUSTRALIAN BROADCASTING

TRIBUNAL

Flrst Respondents

AND :

WEST COAST TELECASTERS LTD

Second Respondent

C m Egatt J.

PLACE Sydney

- D 9 September 1986

MINUTE OF ORDER

1.	The proceeding herein be conducted	or continued at Perth.
Orders accordingly.

2 . Costs of the motion dated 3 September 1986 and flled on 4 September 1986 are to be costs In the cause.

NOTE : Settlement and entry of orders is dealt

of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA 1

NEW SOUTH WALES DISTRICT REGISTRY	1	No. G364 of 1986
GENERAL DIVISION

BETWEEN :

WESTERN TELEVISION LIMITED

Applicant

AND :

AUSTRALIAN BROADCASTING

TRIBUNAL

Flrst Respondent

m2 :

WEST COAST TELECASTERS LTD

Second Respondent

CORAM Evatt	J .
PLACE Sydney

17 September 1986

REASONS FOR JUDGMENT

On 30 July 1986 the Australian Broadcasting Trlbunal (the

Tribunal) handed down Its decislon and Report in relation to the

grant of a licence for a commerclal televlsion station to serve

the Perth metropolitan television area. Such decision and Report followed an inquiry commenced in 1984 followlng a Notice from the

then Minlster for Communicatlons dated 7 May 1984.

...

Following procedural hearlngs In December 1984 in Perth the

substantive inquiry commenced on 5 February 1985 and continued from tlme to time untll Its completlon on 2 0 March 1986, a total of 117 sitting days belng Involved. All hearing days were

conducted in Perth. Leave to appear before the lnquiry was

granted to several partles, the nature of the interest clalmed by

and the extent of the partlcipatlon granted to each of those

partles belng set out m the Trlbunal's Report - Volume 11,

Appendix G, pp G16/17. A perusal of that document shows that the

bulk of the legal representatives, both Barrlsters and Sollcitors

were Perth practltloners. During the course of the lnqulry 15

separate appllcations were made to the Federal Court challenging

varlous rulings made by the Trlbunal. Surnmarles of those

applicatlons are contamed m Volume 11, Appendix H of the

Report. Each of these appllcations were heard in Perth. It 1 s

stated that the transcrlpt	of all	proceedmgs cover some 13,000
pages .

e- . --.=---.Pw-- - - - - - - S - -

By sppllcation dated 26 August 1986, Western Television Llmited.

an unsuccessful appllcant for the grant of the sald llcence,

sought a review of the sald declslon of the Trlbunal pursuant to

the Admlnistrative Declslons (Judicial Review) Act 1977. That

application was lodged In the Sydney Registry and made returnable the Rules of Court, Sydney became the "proper place" wlthln the

for directions on l8 September 1986 at the Federal Court, Law

meaning of para (a) of that expresslon as set out In 0.1, r.4.

By Notlce of Motlon dated 3 September 1986 and flled on 4

September 1986, the second respondent herein, West Coast

Telecasters Llmlted, the successful applicant for the grant of

the said licence, sought orders pursuant to 3.48 of the Federal

Court Act 1976 and the Rules of Court that, inter alia, "the

proceeding be conducted or contlnued In the Federal Court sitting

at Perth". The said appllcation was flled by Messrs Dawson

Waldron. Solicitors of Sydney as agents for Robinson Cox,

Sollcltors of Perth.

The appllcatlon for the change of venue was heard on 9 September

1986 when the flrst respondent, the Trlbunal. Indicated that It submitted to any order that the Court saw fit to make In thls

reqard. The appllcant In the substantive application, Western

Televlslon Llmlted, appeared by Counsel Mr Cashion instructed by Boyd House and Partners, Solicltors of 88 Pltt Street, Sydney to

.---W-..V"II"-.ll-- _-_- - -I-uL-,.-__. - - ..

oppose any change of venue.

The affldavit filed In support of the motion of 3 September 1986

was that of Anthony Willlam Kiernan sworn 2 September 1986. Mr

Kiernan 1 s a Sollcitor practising on his own account and 1 s a

Director of West Coast Telecasters Limited, the appllcant on the

rnotlon. Paraqraph 3 of that affidavlt sets out the following:

(a) the llcence In questlon 1s for the Perth Metropolltan

Television Area;

4

(b) the Inqulry (all 117 days of it) and the assoclated

Federal Court applications were heard in Perth;

( c ) the First Respondent has an offlce In Perth and was

represented durlng the Inquiry by a Perth Barrlster and

Attorney General's Department in Perth;

(d) the Applicant is Incorporated In Western Australla, Its

board members are resldent In Western Australia, as are

the ma~ority of Its shareholders;

(e) the Applicant was represented at the Inqulry by a Perth

Queen's Counsel and a local firm of solicltors:

(f) the Second Respondent 1s lncorporated in Western

Australla. Its board members are resident In Western

Australla, as are Its shareholders;

(9) the Second Respondent was represented at the Inquiry by

a Perth Queen's Counsel and a local firm of solicitors;

(h) the Second Respondent has no substantial commerclal or

other connectlons wlth Sydney and nor, to the best of my knowledqe, informatlon and belief, has the Applicant;

(1) In all the clrcumstances. slqnificantly greater expense

would be occasloned by holdlnq the hearlnq In Sydney

rather than Perth.

The references to the applicant, the first respondent and the

second respondent In thFAboved-ph are of course references

-- - - "'.-r,-.l..-.-- - -- . ----.-- .-

to the respectlve parties in the substantlve proceedlnqs	as set
out in the heading herein.

Mr Slattery of Counsel, who appeared for West Coast Telecasters

Llmlted submitted that on the balance of convenience and a

questlon of public interest were such that the Court should order

that the venue be chanqed to Perth. On the other hand, Mr

Cashion argued that the order for revlew was such that it would

be most unlikely that any evldence would be taken before a

Federal Court Judge, that It was the intentlon of the sppllcant

for review to brlef Mr Shand of Queen’s Counsel and the publlc

lnterest could well be satlsfled on such an appllcatlon made In

Sydney. Further he submitted that the appllcant was entltled to

choose Its venue and In respect of thls submisslon referred the

Court to an unreported decision of Toohey J glven on 18 August

1386 m Badas Ptv Lmlted as Trustee of the Badas Famllv Trust v

Deputv Commlssloner of Taxatlon, No. G260186. At p 3 of that

~udgment Hls Honour sald:

Against those conslderations Mr Bloom has argued two general

propositions. One 13 that the applicant is entitled to

choose Its venue and m the absence of evldence that that 1s

an inconvenlent venue then the appllcant should be permitted

that declsion. The second argument In broad terms is ....

It was submltted that the evldence vas such that the appllcant of

the motlon seeklng the change of venue had not demonstrated that

Sydney was an lnconvenlent venue.

~ ~ ~ ~ ~ ~ ~ ~ ~ -+Imlyof- ~ ~ ~ ~ ~ ~ t ~ ~ ~ * ~ e ~ ~ b e ~ q B ~ = w ~

the vlew that the balance of convenience was such that Perth

should be the venue for the hearlnq of the application for

revlew. Thls was also the declslon in respect of any questlon of

publlc interest. Accordlngly the Court then made orders changing

the venue from Sydney to Perth and ordered that the motlon flled

on 4 September 1986 otherwlse be stood over for further hearlng

at Perth at a trme to be arranged wlth the Deputy Registrar of

the Court at Perth. Costs of the motlon are to be costs In the

cause. Owlnq to Its then commitment the Court Indicated it would

publlsh short reasons for ~udgment at a later date.

6.

I certlfy that thls and the f : d c

precedlng pages are a true copy of the

Reasons for Judgment hereln of hls

Honour Mr Justlce matt

Associate