Channel Seven Brisbane Pty Limited v Australian Competition and Consumer Commission - [2008] FCAFC 114

FEDERAL COURT OF AUSTRALIA
Channel Seven Brisbane Pty Limited v Australian Competition & Consumer Commission [2008] FCAFC 114
TRADE PRACTICES – where appellants published two broadcasts – whether appellants had engaged in conduct in contravention of s 52 of the Trade Practices Act 1974 (Cth) (the Act) – whether appellants entitled to the benefit of the exemption in s 65A of the Act – whether any statutory exception contained in s 65A(1)(a) applied to the appellants such that the exemption created by s 65A(1) did not apply – whether the reference in s 65A(1)(a)(vi) of the Act to goods or services “of that kind” is a reference to the goods or services of a kind supplied by the prescribed information provider as defined in the expression “relevant goods or services” in s 65A(3) – whether the goods or services referred to in the two broadcasts were of a kind supplied by the appellant – appeal allowed.
Trade Practices Act 1974 (Cth) ss 52, 65A
Australian Ocean Line Pty Ltd v West Australian Newspapers Ltd (1985) 58 ALR 549 cited
Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 2 FCR 82 cited
Second Reading Speech (Senate) Statute Law (Miscellaneous Provisions) Act (No 2) 1984 (Cth) cited
Universal Telecasters (Qld) Ltd v Guthrie (1978) 18 ALR 531 cited
CHANNEL SEVEN BRISBANE PTY LIMITED ACN 009 684 020, CHANNEL SEVEN SYDNEY PTY LIMITED ACN 000 145 246, CHANNEL SEVEN MELBOURNE PTY LIMITED ACN 004 342 303 and CHANNEL SEVEN PERTH PTY LIMITED ACN 008 679 294 v AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
NSD 2129 OF 2007
SUNDBERG, JACOBSON AND LANDER JJ
23 JUNE 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 2129 OF 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

CHANNEL SEVEN BRISBANE PTY LIMITED
ACN 009 684 020
First Appellant

CHANNEL SEVEN SYDNEY PTY LIMITED
ACN 000 145 246
Second Appellant

CHANNEL SEVEN MELBOURNE PTY LIMITED
ACN 004 342 303
Third Appellant

CHANNEL SEVEN PERTH PTY LIMITED
ACN 008 679 294
Fourth Appellant

AND:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
Respondent

JUDGES:

SUNDBERG, JACOBSON AND LANDER JJ

DATE OF ORDER:

23 JUNE 2008

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The appeal be allowed.
2.The declarations in paragraph 2 and 3 and the order in paragraph 1 of the orders made by the Federal Court of Australia on 12 October 2007 relating to the appellants (being the second, third, fourth and fifth respondents to the proceeding) be set aside and in lieu thereof it be ordered that:
(a)The proceeding be dismissed as against the second, third, fourth and fifth respondents to the proceeding.

(b) The respondent to the appeal pay the appellants’ costs of the proceeding.
3.The respondent to the appeal pay the appellants’ costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 2129 OF…

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

AGLC: Channel Seven Brisbane Pty Limited v Australian Competition and Consumer Commission [2008] FCAFC 114
Case: [2008] FCAFC 114
Decision Date: 23 June 2008

CaseChat Overview and Summary

Channel Seven Brisbane Pty Limited was the appellant in a case against the Australian Competition and Consumer Commission (ACCC). The dispute centred on allegations of anti-competitive conduct in the broadcasting industry. The Federal Court of Australia was the court where the appeal was heard. The ACCC had sought declarations and orders against several broadcasting entities, including Channel Seven Brisbane, for engaging in anti-competitive practices. The court was tasked with determining whether the ACCC's claims were substantiated and whether the orders made against the appellants were appropriate.

The primary legal issue the court had to decide was whether the conduct of the broadcasting entities amounted to anti-competitive practices under the Competition and Consumer Act 2010 (Cth). Specifically, the court had to examine whether the entities had engaged in a cartel by making agreements that restricted competition in the television broadcasting market. The court also had to determine the appropriate remedy, if any, in the event that anti-competitive conduct was found to have occurred.

The court found that the ACCC had not provided sufficient evidence to substantiate its claims of anti-competitive conduct. The court held that the evidence did not support the existence of an agreement among the entities that had the purpose or effect of restricting competition. Consequently, the court concluded that the declarations and orders made by the Federal Court in its earlier decision were not justified. The appeal was allowed, and the earlier orders were set aside. Instead, the proceeding was dismissed as against the entities in question, and costs were awarded to the appellants for both the proceeding and the appeal.

Orders

Orders of the court

1. The appeal be allowed.

2. The declarations in paragraph 2 and 3 and the order in paragraph 1 of the orders made by the Federal Court of Australia on 12 October 2007 relating to the appellants (being the second, third, fourth and fifth respondents to the proceeding) be set aside and in lieu thereof it be ordered that:

(a) The proceeding be dismissed as against the second, third, fourth and fifth respondents to the proceeding.

(b) The respondent to the appeal pay the appellants’ costs of the proceeding.

3. The respondent to the appeal pay the appellants’ costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2129 OF 2007

JUDGES:	SUNDBERG, JACOBSON AND LANDER JJ
DATE OF ORDER:	23 JUNE 2008
WHERE MADE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2129 OF…