Nova Media Services Ltd v Minister for Posts and Telegraphs

• Jurisdiction: Ireland
• Judge: Mr. Justice Murphy
• Judgment Date: 01 January 1984
• Neutral Citation: 1983 WJSC-HC 3283
• Docket Number: No. 3455 P 1983
• Court: High Court
• Date: 01 January 1984

1983 WJSC-HC 3283

THE HIGH COURT

No. 3455 P 1983

NOVA MEDIA SERVICES LTD. v. MIN. POST & TELEGRAPHS

BETWEEN:-

NOVA MEDIA SERVICES LIMITED AND EUGENE J. BRADY

Plaintiffs

-and-

THE MINISTER FOR POSTS AND TELEGRAPHS, IRELAND, AND THE ATTORNEY GENERAL

Defendants

Subject Headings:

INJUNCTION: interlocutory

1 Judgment of Mr. Justice Murphy delivered this 10th day of June 1983.

2 Radio Nova is one of a number of broadcasting stations commonly known as "Pirate Radio Stations" and it is so described by Mr. Sean Dorgan, an Official of the Department of Posts and Telegraphs in an Affidavit sworn by him herein. The Plaintiffs do not take issue with that description. Indeed any controversy which exists in that regard relates to whether the Plaintiffs revel in or profit from the buccaneering image which that title evokes.

3 The Wireless Telegraphy Act, 1926(the 1926 Act) prohibits the keeping, possession or working of wireless telegraphy and imposed penalties for the breach of such prohibition in the following terms:-

4 2 "3. (1) Subject to the exceptions hereinafter mentioned, no person shall keep or have in his possession anywhere in Saorstat Eireann or in any ship or aircraft to which this Section applies, any apparatus for wireless telegraphy save in so far as such keeping or possession is authorised by a licence granted under this Act and for the time being in force.

5 (2) No person having possession of apparatus for wireless telegraphy under a licence granted under this Act shall work or use such apparatus otherwise than in accordance with the terms and conditions subject to which such licence is by virtue of this Act deemed to have been granted.

6 (3) Every person who keeps, has in his possession, works, or uses any apparatus for wireless telegraphy in contravention of this Section shall be guilty of an offence under this Section and shall be liable on summary conviction thereof to a fine not exceeding ten pounds together with, in the case of a continuing offence, a further fine not exceeding one pound for every day during which the offence continues and also, in every case, forfeiture of all the apparatus in respect of which the offence was committed."

7 The power to grant licences under the 1926 Act is conferred upon the Minister for Posts and Telegraphs in the following terms:-

"5.(1) The Minister may, subject to the provisions of this Act and on payment of the prescribed fee (if any) grant to any person a licence to keep and have possession of apparatus for wireless telegraphy in any specified place in Saorstat Eireann or to keep and have possession of apparatus for wireless telegraphy in any specified ship or other vessel or aircraft or to maintain a signalling station at any place in Saorstat Eireann."

8 The Section of the 1926 Act to which particular attention was directed in the course of argument was Section 8 (1) which provides as follows:-

"A Justice of the District Court may, upon the information on oath of an Officer of the Minister or of a member of the "Garda Siochana that there is reasonable ground for believing that apparatus for wireless telegraphy is being kept or is being worked or used at any specified place or in any specified ship in contravention of any provision of this Act or any regulation made or condition imposed under this Act, grant to such officer of the Minister or (with the consent of the Minister) to such member of the Garda Siochana (as the case may be) a search warrant which shall be expressed and shall operate to authorise the officer of the Minister or member of the Garda Siochana to whom the same is granted to enter, and if need be by force, the place or ship named in the said information and there to search for apparatus for wireless telegraphy and to examine all such apparatus there found and to seize and take away all or any part of such apparatus which appears to such officer or member to be kept, worked or used in contravention of any provision of this Act or any regulation made or condition imposed under this Act."

9 A reference may also be made to Section 12 of the 1926 Act which prohibits the use of any apparatus for wireless telegraphy in such a way that electro-magnetic radiation therefrom interferes with the working of any apparatus for wireless telegraphy licensed under that Act. It will be appreciated that that Section is not dealing with the unlawful possession or use of wireless telegraphy apparatus but the use of it in such a way as to create what may be described as a statutory nuisance. In connection with that particular Section the Minister is given particular powers to notify the offending operator and requiring him to take steps - including where necessary the complete stoppage of the working or user of the apparatus - as specified in the notice so as to terminate the interference with the other wireless telegraphy.

10 The 1926 Act being part of the laws in force in Saorstat Eireann immediately prior to the date of the coming into operation of the Constitution of Ireland continued to be of full force and effect by Article 50 of the Constitution save to the extent (if any) to which that Act was inconsistent therewith. In fact the 1926 Act was amended by the Wireless Telegraphy Act 1956, the Broadcasting Authority Act 1960, the Broadcasting Authority Act 1966and the Wireless Telegraphy Act, 1972. Indeed the Wireless Telegraphy Act 1972expressly provides that the 1926 Act, which is therein described as "the Principal Act" and the other amending legislation and the 1972 Act should be construed together as one Act.

11 Whilst the 1926 Act does not attract the presumption of constitutionality enjoyed by legislation enacted by the Oireachtas subsequent to the Constitution of Ireland, the Plaintiffs do recognise that some onus is cast on them in the circumstances if and to the extent that it is sought to establish that the 1926 Act or any part thereof is inconsistent with the Constitution of Ireland.

12 Apparently Radio Nova commenced broadcasting in June 1981 and has carried on since that date and more particularly by the Plaintiff Company since its incorporation on the 26th of November 1981. The Plaintiff Company has also broadcast under the style "Radio Kiss F.M." It is crucial to observe that the Plaintiffs do not hold, have not held and did not apply for a licence to keep, possess or use apparatus for wireless telegraphy as was required under the terms of the 1926 Act.

13 On the 18th of May 1983 officials of the Minister for Posts and Telegraphs in pursuance of a search warrant granted by a Justice of the District Court under Section 8 of the 1926 Act entered on the premises of the Plaintiff Company and removed therefrom broadcasting equipment which the Plaintiffs valued at £180,000.00. On the same day the Plenary Summons herein was issued in which these Plaintiffs claimed the relief following:-

14 1. A declaration that the Wireless Telegraphy (and in particular Section 3) Act 1926was not carried forward by the Constitution of Ireland and is repugnant, invalid and of no effect.

15 2. A declaration that the actions of the first-named Defendant, his servants and agents on the 18th of May 1983 in entering on the Plaintiffs' premises and in removing the goods and equipment of the Plaintiffs is contrary to the Plaintiffs' Constitutional rights under the Constitution of Ireland.

16 2. (a) A declaration that the Act of 1926 and in particular Section 3 thereof is invalid having regard to the provisions of the Treaty of Rome and the European Communities Act, 1972.

17 3. An injunction restraining the Defendants their servants or agents from:-

18 (a) interfering or attempting to interfere with the Plaintiffs in the carrying out of their business and in particular in broadcasting as "Radio Nova" and "Radio Kiss F.M."

19 (b) Removing or attempting to remove any of the goods or equipment of the Plaintiffs.

20 4. A mandatory Order compelling the first-named Defendant to return all of the Plaintiffs' goods and equipment.

21 5. Interim and Interlocutory Orders in the above terms.

22 6. Damages.

23 On the 19th of May 1983 the Summons herein was served on the Defendants and an application was made to this Court for liberty to serve short Notice of a Motion claiming Interlocutory relief against the Defendants. That application was granted and the matter was listed for hearing on the 26th of May 1973 during the Whitsun vacation but adjourned to facilitate the filing of further Affidavits. The application for the Interlocutory relief was ultimately heard on the 1st and 2nd days of June 1983. Immediately following the hearing of that application a similar but not identical application was made in proceedings entitled, 1983 No. 3680 P, The High Court, Between: Sunshine Radio Productions Limited, John Robinson, John Robinson, trading as Sunshine Radio, Plaintiffs, and, The Attorney General, Ireland, and The Minister for Posts and Telegraphs, Defendants." It may be convenient to refer to those proceedings as "The Sunshine Radio Proceedings" and to the instant matter as "The Radio Nova Proceedings." Whilst there are certain distinctions to be drawn with regard to the facts relating to...