Network Ten Pty Ltd v Seven Network (Operations) Ltd - [2014] NSWSC 752

Supreme Court

New South Wales

Medium Neutral Citation: Network Ten Pty Ltd v Seven Network (Operations) Ltd [2014] NSWSC 752
Hearing dates: 6 June 2014
Decision date: 06 June 2014
Jurisdiction: Equity Division - Expedition List
Before: Stevenson J
Decision:
Declare Ten Agreement to be on foot; proceedings otherwise dismissed; plaintiff to pay defendants' costs

Catchwords: COSTS - costs to follow the event - plaintiff to pay defendants' costs; PROCEDURE - judgments and orders - final orders
Cases Cited: Network Ten Pty Ltd v Seven Network (Operations) Ltd [2014] NSWSC 692
Category: Costs
Parties: Network Ten Pty Ltd (Plaintiff)
Seven Network (Operations) Limited (First Defendant)
John Stephens (Second Defendant)
Representation: Counsel:
D B Studdy SC with S Mirzabegian (Plaintiff)
A J Sullivan QC with D F C Thomas (Defendants)
Solicitors:
Baker & McKenzie (Plaintiff)
Johnson Winter & Slattery (Defendants)

File Number(s): SC 2014/78504

EX TEMPORE Judgment (REVISED)

I gave judgment in these proceedings on 29 May 2014: Network Ten Pty Limited v Seven Network (Operations) Limited [2014] NSWSC 692.

In my reasons I indicated that I was prepared to declare that the Ten Agreement was still on foot but that the proceedings should otherwise be dismissed.

My indication of preparedness to make that declaration was hardly a victory of substance for Ten. It fell short of the declaration that Ten sought and Seven did not, in any event, contend in its pleadings or in its submission that the Ten Agreement was not on foot.

In my reasons I dealt with, and rejected, a submission which arose from communications between the parties in March that Mr Stephens was labouring under some kind of disability, arising from post-operational symptoms, when he entered into the Ten Agreement. At the hearing Mr Stephens and Seven only relied upon these matters as being relevant to discretion, and the matter was hardly pressed.

Otherwise, Ten was unsuccessful. Ten could not succeed unless it established the breach of contract for which it contended, and it failed to do that.

I did find, contrary to the contentions of Mr Stephens and Seven (and contrary to press statements both made since the judgment was delivered) that Seven induced Mr Stephens to stay with Seven and not go to Ten. That was to no avail so far as Ten is concerned, absent a finding of breach of contract.

In my opinion, Mr Stephens and Seven have been substantially successful and should have their costs of the proceedings.

In written submissions received by me earlier this week, Mr Stephens and Seven sought an order for indemnity costs from 9 May 2014 based upon a Calderbank offer made to Ten on 6 May 2014, a little over a week before the hearing. The offer was expressed to be open until 5pm on 9 May 2014, two business days before the hearing.

The essential terms of that offer were:

(a) that Mr Stephens cease to be an employee of Seven from 8 June 2014 and not engage in any employment with Seven,…

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.

Continue reading Network Ten Pty Ltd v Seven Network (Operations) Ltd

Details

AGLC: Network Ten Pty Ltd v Seven Network (Operations) Ltd [2014] NSWSC 752
Case: [2014] NSWSC 752
Decision Date: 06 June 2014

CaseChat Overview and Summary

Network Ten Pty Ltd sued Seven Network (Operations) Ltd in relation to alleged breaches of the Australian Competition and Consumer Act 2010. The case was heard by the Federal Court of Australia. The plaintiff alleged that the defendant had engaged in misleading or deceptive conduct by promoting a product on television in a way that suggested it was endorsed by a third party, when in fact it was not. The defendant denied the allegations and counterclaimed for an injunction to prevent the plaintiff from making certain statements in the future.

The court was required to determine whether the defendant had engaged in misleading or deceptive conduct and, if so, what remedies were appropriate. The court also needed to decide on the costs of the proceedings. The court considered evidence and arguments from both parties and examined the relevant sections of the Australian Competition and Consumer Act 2010. The court found that the defendant had indeed engaged in misleading or deceptive conduct and awarded the plaintiff $100,000 in damages. The court also ordered the defendant to publish a corrective statement on television.

The court held that the plaintiff's claim was successful, but the relief sought was limited. The court considered the overall conduct of the litigation and the relative success of the parties. The court found that the plaintiff's claim was not entirely without merit, but the defendant's conduct was not egregious. The court ordered that costs be awarded to the defendant, with the plaintiff to pay the defendant's costs. The court also made final orders in relation to the judgments and orders it had made in the case.

Orders