Swan Television and Radio Broadcasters Ltd v Australian Broadcasting Tribunal & ors [1985] FCA 442

The first question that arises 15 the power of the Court to grant a stay. if do not understand the Court's power to he in issue, though some question has arisen as to whether the appropriate exercise of jurisdiction is under 5.15 of the

Administrative Decisions (Judicial Review) Act 1977 or under 0.52

y.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 5.15 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 Tam not to be taken as 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 5.15 or a stay under 0.52 r.17. In which case what the Court is being asked todo is to stay proceedings under the

I accept that the principles to he applied are not identical with those 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 ocontinuing inquiry. This 1s rather different from the

ordinary situation in which a court is 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 avallable, 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

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 15 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 in respect of such a grant. In the end, it seems to me that the matter is capable of resolution, at least for atime, 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 duly. It may

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

sight of Mr. Owen's submiseion 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 ta say when, if a stay is granted, the appeal will he 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 sittings 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

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 considerations, I am of the opinion that there should be a stay but it should not he 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

the hearing of the appeal can be explored and also more will be known of the course of the inquiry before the Tribunal. If at that time (and I put these matters only ina tentative way) it seems that the appeal can be heard quite quickly, and in particular if it appears that the appeal can he heard hefore 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 might 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

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 hbe heard. So far as they are concerned, I must treat the application today a5 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

The form of stay I shall not attempt to formulate in running, but it is a stay which is intended inno 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

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 motice 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