A403 IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G364 of 1986 GENERAL DIVISION BETWEEN: WESTERN TELEVISION LIMITED Applicant AND: AUSTRALIAN BROADCASTING TRIBUNAL First Respondents AND: WEST COAST TELECASTERS LTD Second Respondent CORAM Evatt J. PLACE Sydney DATE 39 September 1986 MINUTE OF ORDER URINE e -CL Ee, ne eM e THE COURT DIRECTS THAT: 1. The proceeding herein be conducted or continued at Perth. Orders accordingly. 2. Costs of the motion dated 3 September 1986 and filed on 4 September 1986 are to be costs in the cause. NOTE: Settlement and entry of orders is dealt with ~sTrOrder 36 of the Federal Court Rules. 17 Sir sod FEEDER. . RT OF AU. WIA PR . PAL Heu stAY IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G364 of 1986 GENERAL DIVISION BETWEEN : WESTERN TELEVISION LIMITED Applicant AND: AUSTRALIAN BROADCASTING TRIBUNAL First Respondent AND: WEST COAST TELECASTERS LTD second Respondent CORAM Evatt J. PLACE Sydney 1A CA AOE ERSTE OO NERC EAS ICSCEITRIRSAEAT ren SYN OR FU Oe ne Te SR RN ct oe a ee DATE 17 September 1986 REASONS FOR JUDGMENT On 30 July 1986 the Australian Broadcasting Tribunal (the Tribunal) handed down its decision and Report in relation to the grant of a licence for a commercial television station to serve the Perth metropolitan television area. Such decision and Report followed an inquiry commenced in 1984 following a Notice from the then Minister for Communications dated 7 May 1984. ts Following procedural hearings in December 1984 in Perth the substantive inquiry commenced on 5 February 1985 and continued from time to time until its completion on 20 March 1986, a total of 117 sitting days being involved. All hearing days were conducted in Perth. Leave to appear before the inquiry was granted to several parties, the nature of the interest claimed by and the extent of the participation granted to each of those parties being set out inthe Tribunal's Report - Volume II, Appendix G, pp G16/17. A perusal of that document shows that the bulk of the legal representatives, both Barristers and Solicitors were Perth practitioners. During the course of the inquiry 15 separate applications were made to the Federal Court challenging various rulings made by the Tribunal. Summaries of those applications are contained in Volume II, Appendix H of the Report. Each of these applications were heard in Perth. It is stated that the transcript of all proceedings cover some 13,000 en Sn ht ne By application dated 26 August 1986, Western Television Limited, an unsuccessful applicant for the grant of the said licence, sought a review of the said decision of the Tribunal pursuant to the Administrative Decisions (Judicial Review) Act 1977. That application was lodged in the Sydney Registry and made returnable for directions on 18 September 1986 at the Federal Court, Law Courts Building, Queens Square, Sydney. Accordingly, pursuant to the Rules of Court, Sydney became the "proper place" within the meaning of para (a) of that expression as set out in 0.1, r.4. w By Notice of Motion dated 3 September 1986 and filed on 4 September 1986, the second respondent herein, West Coast Telecasters Limited, 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 continued in the Federal Court sitting at Perth". The said application was filed by Messrs Dawson Waldron, Solicitors of Sydney as agents for Robinson Cox, Solicitors of Perth. The application for the change of venue was heard on 9 September 1986 when the first respondent, the Tribunal, indicated that 1t submitted to any order that the Court saw fit to make in this regard. The applicant ain the substantive application, Western Television Gimited, appeared by Counsel Mr Cashion instructed by Boyd House and Partners, Solicitors of 88 Pitt Street, Sydney to FANT, Pe RRR TIN TS ar an Ine ee I RIERA arn RISER Attar amerannrmansaarh aoe - oppose any change of venue. The affidavit filed in support of the motion of 3 September 1986 was that of Anthony William Kiernan sworn 2 September 1986. Mr Kiernan 18 a Solicitor practising on his own account and isa Director of West Coast Telecasters Limited, the applicant on the motion. Paragraph 9 of that affidavit sets out the following: (a) the licence in question is for the Perth Metropolitan Television Area; ~ er: 4, (b) the Inquiry (all 117 days of it) and the associated Federal Court applications were heard in Perth; (c) the First Respondent has an office in Perth and was represented during the Inquiry by a Perth Barrister and Attorney General's Department in Perth; (d) the Applicant is incorporated in Western Australia, its board members are resident in Western Australia, as are the majority of its shareholders; (e) the Applicant was represented at the Inquiry by a Perth Queen's Counsel and a local firm of solicitors; (f) the Second Respondent 1S incorporated in Western Australia. its board members are resident in Western Australia, as are its shareholders; (g) 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 commercial or other connections with Svdney and nor, to the best of my knowledge, information and belief, has the Applicant; (1) in all the circumstances, significantly greater expense would be occasioned by holding the hearing in Sydney rather than Perth. The references to the applicant, the first respondent and the second respondent in the above paragraph are of course references to the respective parties in the substantive proceedings as set out in the heading herein. Mr Slattery of Counsel, who appeared for West Coast Telecasters Limited submitted that on the balance of convenience and a question of public interest were such that the Court should order that the venue be changed to Perth. On the other hand, Mr Cashion argued that the order for review was such that it would be most unlikely that any evidence would be taken before a Federal Court Judge, that it was the intention of the applicant oe I DERE Sa ENS Te RR Ne AT NL wn TREN TR TINT treme for review to brief Mr Shand of Queen's Counsel and the public interest could well be satisfied on such an application made in Sydney. Further he submitted that the applicant was entitled to choose 1ts venue and in respect of this submission referred the Court to an unreported decision of Toohey J given on 18 August 1986 in Badas Pty Limited as Trustee of the Badas Family Trust v Deputy Commissioner of Taxation, No. G260/86. At p 3 of that judgment His Honour said: Against those considerations Mr Bloom has argued two general propositions. One its that the applicant is entitled to choose its venue and in the absence of evidence that that 1s an inconvenient venue then the applicant should be permitted that decision. The second argument in broad terms is .... It was submitted that the evidence was such that the applicant of the motion seeking the change of venue had not demonstrated that Sydney was an inconvenient venue. 'neering Cofs Tae red "the Matter mor "I=sepremberm 19 BesEowes "Ei ririy= of the view that the balance of convenience was such that Perth should be the venue for the hearing of the application for review. This was also the decision in respect of any question of public interest. Accordingly the Court then made orders changing the venue from Sydney to Perth and ordered that the motion filed on 4 September 1986 otherwise be stood over for further hearing at Perth at a time to be arranged with the Deputy Registrar of the Court at Perth. Costs of the motion are to be costs in the cause. Owing to 1ts then commitment the Court indicated 1t would publish short reasons for judgment at a later date. I certify that this and the five preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr Justice Evatt Associate Dated: /7-9-96. SAA = Ne AE ite sa ED LONER IEE REE RDIONIEE ran EET ame eT pane RNS SS GS SS