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

NOT INTENDED FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION

No. WA G59 of 1984

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SWAN TELEVISION AND RADIO C / 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

CORAM: TOOHEY J / : \

4 July 1985 ~4 Lote "og *

EX TEMPORE REASONS FOR JUDGMENT By this motion, the appellant seeks a stay of a decision

made hy the Australian Broadcasting Tribunal ordering the

production of documents.

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

judgment appealed from.

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