C7 Pty Ltd v Foxtel Management Pty Ltd - [2002] FCA 54

FEDERAL COURT OF AUSTRALIA
C7 Pty Ltd v Foxtel Management Pty Ltd
[2002] FCA 54
C7 PTY LIMITED v FOXTEL MANAGEMENT PTY LIMITED, SPORTS INVESTMENTS AUSTRALIA PTY LIMITED, NEWS LIMITED, SKY CABLE PTY LIMITED, TELSTRA MEDIA PTY LIMITED, TELSTRA MULTIMEDIA PTY LIMITED, TELSTRA CORPORATION LIMITED, PUBLISHING AND BROADCASTING LIMITED, AUSTRALIAN FOOTBALL LEAGUE and NATIONAL RUGBY LEAGUE LIMITED
N 1077 OF 2001
GYLES J
SYDNEY
4 FEBRUARY 2002

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 1077 OF 2001

BETWEEN:

C7 PTY LIMITED
ACN 082 901 442
APPLICANT

AND:

FOXTEL MANAGEMENT PTY LIMITED
ACN 068 671 938
FIRST RESPONDENT

SPORTS INVESTMENTS AUSTRALIA PTY LIMITED
ACN 065 445 418
SECOND RESPONDENT

NEWS LIMITED
ACN 007 871 178
THIRD RESPONDENT

SKY CABLE PTY LIMITED
ACN 069 799 640
FOURTH RESPONDENT

TELSTRA MEDIA PTY LIMITED
ACN 069 279 027
FIFTH RESPONDENT

TELSTRA MULTIMEDIA PTY LIMITED
ACN 069 279 072
SIXTH RESPONDENT

TELSTRA CORPORATION LIMITED
ACN 051 775 556
SEVENTH RESPONDENT

PUBLISHING AND BROADCASTING LIMITED ACN 009 071 167
EIGHTH RESPONDENT

AUSTRALIAN FOOTBALL LEAGUE
ACN 004 155 211
NINTH RESPONDENT

NATIONAL RUGBY LEAGUE LIMITED
ACN 082 088 962
TENTH RESPONDENT

JUDGE:

GYLES J

DATE:

4 FEBRUARY 2002

PLACE:

SYDNEY

REASONS FOR RULING (EX TEMPORE)

On 21 December 2001 I delivered reasons for judgment on an application for preliminary discovery. The proceeding was stood over to 4 February 2002 to enable short minutes to be brought in to give effect to the judgment. A number of issues have arisen between the parties which have been discussed during the course of the morning. One particular issue which has arisen has required some consideration. The applicant, broadly speaking, seeks orders against the fifth, sixth and seventh respondents (“the Telstra parties”) to match orders which are to be made against the first to fourth respondents and the eighth respondent. It is submitted for the Telstra parties that this is precluded by the substance of the decision I gave on 21 December 2001 and that, even if that is not so, it is precluded by the manner in which the proceedings were conducted. It is submitted for the Telstra parties that the order which is made should, so far as subject matter is concerned, be restricted to those documents identified in a schedule to a letter of 31 October 2001 from Mallesons Stephen Jaques to Freehills.
The Telstra parties have relied, in particular, upon par 45 of my reasons for judgment, which I need not reproduce. That part of the judgment was expressed with some generality and did not descend to the detail of any order which might be made. In my opinion, it does not constitute any form of estoppel which would prevent further consideration of the proper order to be made, even if to do so would involve looking at some matters of substance which had not been dealt with. It seems to me that the real issue is whether it would be appropriate, in the circumstances, to permit this to be done.
It…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] FCA 54
Decision Date: 4 FEBRUARY 2002

CaseChat Overview and Summary

C7 Pty Ltd sought orders for discovery against Foxtel Management Pty Ltd, Sports Investments Australia Pty Ltd, News Limited, Sky Cable Pty Limited, Telstra Media Pty Limited, Telstra Multimedia Pty Limited, Telstra Corporation Limited, Publishing and Broadcasting Limited, Australian Football League, and National Rugby League Limited in the Federal Court of Australia. The applicant, C7 Pty Ltd, aimed for orders to match those made against other respondents, but the Telstra parties argued that this was precluded by the judge's previous decision and the conduct of the proceedings. The Telstra parties argued that the order should be restricted to documents identified in a letter from their solicitors to the applicant's solicitors, and relied on a part of the previous judgment that did not detail any specific order. The court considered whether it would be appropriate to allow the applicant to seek a broader order against the Telstra parties.

The legal issues included whether the applicant was precluded from proposing that the orders to be made against the Telstra parties match those against the other respondents and whether the applicant should be permitted to go beyond the last position adopted in the correspondence between the solicitors prior to the hearing. The Telstra parties argued that the applicant was bound by the narrowing of the basis for debate in the opening statement and that no formal concessions were made. The court found that the applicant had not abandoned its claim to the documents set out in the application, and there was much to be said for imposing similar obligations on all relevant respondents. However, the court ruled that the applicant should not be permitted to go beyond the last position adopted by it in the correspondence between solicitors prior to the hearing.

The court determined that the applicant should not be allowed to propose orders against the Telstra parties that went beyond the last position adopted in the correspondence between solicitors. The court found that the applicant had not abandoned its claim to the documents set out in the application, and no formal concessions were made. However, the court ruled that the applicant should not be permitted to go beyond the last position adopted by it in the correspondence between solicitors prior to the hearing. The court would hear further argument as to the consequences of this ruling.

The court certified that the preceding six numbered paragraphs are a true copy of the Reasons for Ruling. The matter was heard on 4 February 2002, and the ruling was made on the same day.

Orders