SUPREME COURT Press statement not admitted as evidence

Press, Volume CXIII, Issue 33156, 21 February 1973, Page 9

SUPREME COURT Press statement not admitted as evidence

; An application for leave to; I introduce additional evidence; i—a Ministerial press state-1 jment on the Government's; I policy on private commercial; < radio stations—was refused i by Mr Justice Wilson in thei I Supreme Court yesterday. I His Honour was sitting in; the administrative division; ! of the Supreme Court, hearj ing an appeal by the New ! Zealand Broadcasting Corporation against a decision of I the Broadcasting Authority to grant a licence to the Avon Broadcasting Company to ' run a private commercial radio station in Christchurch. The application to introduce additional evidence, an I affidavit of the DirectorGeneral of the N.Z.B.C. (Mr L. F. Sceats) referring to a press statement made by the Minister of Broadcasting (Mr Douglas) on February 2, was made by senior counsel for the N.Z.8.C., Mr M. J. O’Brien, Q.C., of Wellington.

With Mr O’Brien was Mr B. L. Darby, of Wellington. Mr P. L. Mortlock appeared for the Avon Broadcasting Company. The hearing will continue this morning. Mr O’Brien said that the N.Z.B.C. had taken this course of action because the corporation was obliged to comply with the present Government’s policy. Prima facie, the evidence was not admissible on appeal because of a ruling by the Chief Justice (Sir Richard Wild) in a liquor licensing case, his Honour said. In a subsequent broadcasting case he had said that the same principle applied, and his Honour agreed. The Chief Justice had said that what the appellant was entitled to do and must do in order to succeed was to show that the Licensing Control Commission made a wrong decision on the facts and in the circumstances at the time of the decision. What the appellant was not entitled to do was to convert the appeal into a second application to the Court in the light of developments that might have occurred since the decision.

Converting this into the facts of the N.Z.B.C.’s appeal and on that principle, his Honour held that what the N.Z.B.C. was entitled to do and had to do in order to succeed was to show that the Broadcasting Authority made a wrong decision on the facts and in the circumstances at the time of the

decision of the authorityi ; which was appealed against. The N.Z.B.C. was not; (entitled to attempt to con;vert the appeal into a! (second application to the; Court in the light of developments which might have occurred since the decision of the authority. That decision was delivered on December 7, last year, about two months before the press; [release referred to in Mr (Sceats’s affidavit.

! “It is therefore something which happened since the decision of the authority. Mr O’Brien of course recognises this, but meets this objection by a reliance on section 12 of the Broadcasting Authority Act, 1968. “This states that in the exercise of its functions and powers under this act the authority shall comply with the general policy of the Government in relation to the functions and powers of the authority, and shall comply with any general or special directions given by the Minister to the authority by notice in writing pursuant to the policy of the Government in relation to those functions and powers. “It also states that a copy) of every such notice shall be laid by the Minister before Parliament within 28 days after the date of the notice if Parliament is then in ses- > sion,” said his Honour. “Mr O’Brien submits that, in the light of the intimation of the Minister in the press statement, the proper procedure for the Court hearing this appeal is to remit the proceedings to the authority for a rehearing in the light of the policy referred to in the press statement. He submitted that as a matter of interpretation the provisions of section 12 contemplate that the authority may become aware of the genera) policy of the Government in relation to its functions and powers in two ways. One way was through the press by way of Ministerial releases, and the other was by notice in writing,” said his Honour.

That was a perfectly reasonable interpretation to the relevant sub-section of the act but he was not satisfied that it was the correct one.

“I cannot imagine that Parliament contemplated that the persons in charge—the chairman and members of the authority — should have to

i scan the daily newspapers toi (find out how they are to; carry out their duties,” said; his Honour. He thought that the part of the section providing for for-1 mal notice from the Minister! to the authority was intended; to be complementary and an ; indication of the method by which internal policy of the Government as well as any .general or special directions should be passed on to the authority, his Honour said. ■ The grounds of the N.Z.B.C. appeal were that there was no evidence or insufficient evidence before the’ Broadcasting Authority to support its decision that the Avon Broadcasting Company’s proposal was necessary or desirable in the public interest; that insufficient. weight was given to the evi-; dence relating to the econ-; omic effect which the establishing of the Avon service; was likely to have on the; existing stations, and those; services, other than com-! mercial broadcasting, pro-1 vided by the N.Z.8.C., Mr I O’Brien said.