News Limited and Ors v Sth Sydney Rugby

[2001] HCATrans 353

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S164 of 2001

B e t w e e n -

NEWS LIMITED

First Applicant

NATIONAL RUGBY LEAGUE INVESTMENTS PTY LIMITED

Second Applicant

AUSTRALIAN RUGBY FOOTBALL LEAGUE LIMITED

Third Applicant

NATIONAL RUGBY LEAGUE LIMITED

Fourth Applicant

and

SOUTH SYDNEY DISTRICT RUGBY LEAGUE FOOTBALL CLUB LIMITED

First Respondent

And the Second to Twentieth Respondents set out in the Schedule

Application for expedition

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 25 SEPTEMBER 2001, AT 9.41 AM

Copyright in the High Court of Australia

__________________

MR M.J. LEEMING:   May it please the Court, I appear for the applicants.  (instructed by Allens Arthur Robinson)

MS A.J. SILINK:   May it please the Court, I appear for the respondent.  (instructed by Nicholas G. Pappas & Co)

HER HONOUR:   Yes, Mr Leeming.

MR LEEMING:   This is an application for expedition of a special leave application.  The special leave application is ready to go, as it were.  The summaries of argument have been filed and served some little while ago.  There remains only the administrative task of getting together the application book.  There has been some short submissions exchanged between the parties which your Honour may have seen.  The gist of it is that the expedition application is not opposed.  There is no dispute that there is no prejudice to the respondents.

HER HONOUR:   Well, no, but we might just briefly consider the possible prejudice to other people whose special leaves will be delayed.

MR LEEMING:   Yes.

HER HONOUR:   We have some other matters for expedition today where the age of the parties might be thought to be a matter which would warrant expedition, but what is so urgent about this matter?

MR LEEMING:   I should say that we do not seek to displace any other matter in the list.

HER HONOUR:   But you must inevitably.

MR LEEMING:   We must in the sense that there are some hundreds of applications waiting to be heard.  We seek not to displace the matters in the list but to jump towards the top of the queue of those matters that are ready to be heard.  I accept that.

HER HONOUR:   Yes.  Well, you are necessarily queue jumping, as they say.

MR LEEMING:   Quite so.  The principal basis on which we put it – and this is something which is not in dispute between the parties – is that this application gives rise to an important question of general application throughout Australia.  That is the matter that is developed in the written submissions, namely, the proper construction of section 45(2) of the Trade Practices Act in connection with the exclusionary provision in section 4D. 

Your Honour may not have had a chance to read the summaries of argument but in essence what we have is a split decision of the Full Federal Court where neither member of the majority agrees with the other, where the minority member, who agreed with the trial judge, says that certainly one, and probably both, of the bases on which each of the majority members found was not open to be found because it was not pleaded and, in one case, was not even put.  It is a matter concerning the construction of a national law which, it is accepted by the respondents, is now in a state of uncertainty as a result of this decision. 

Your Honour, I appreciate I have spoken in generalities so far and I am certainly able to be more precise.

HER HONOUR:   Yes.  Well, you do not point to any inconvenience to the parties though, or any urgency for the parties.

MR LEEMING:   No, I cannot, other than to say that there is a pecuniary remedies hearing pending in the future at some stage in the event that special leave is refused or an appeal is not allowed, but as far as I am aware, there are no steps to prosecute that further hearing at this stage.  So all I can do is point to the general importance of this application.

HER HONOUR:   Have you made inquiries of the Registry as to when, in the ordinary course ‑ ‑ ‑

MR LEEMING:   Yes, we have.  It will take a year according to my instructing solicitor’s inquiries.  That is not a year from today but a year from the time when the special leave application was filed, which was a couple of months ago.  In essence, we say this is a case like Edensor v ASIC or BT v Telstra, both Full Federal Court decisions where a general question of public importance arose and where doubt was introduced in a matter that went beyond the immediate interests of the parties.  In both of those cases this Court granted a degree of expedition to the special leave application.

What I have tried to do in the written submissions is to identify the matters of principal which have guided the Court in applications like this and the matters which have been expressed by members of the Court, admittedly some of them in cases further back in time when the degree of demand on the special leave list was not as great as I know it is today, but the matters that were identified were prejudice to the respondents – and there is none here – whether there are real prospects of a grant of special leave – I say there is.  There may be a dispute about that and, if there is, I am more than happy to develop that argument further, but on the face of it, it is an important provision, a split decision of the Federal Court producing real uncertainty.  The third matter which is ‑ ‑ ‑

HER HONOUR:   Tell me about this uncertainty that it is producing.

MR LEEMING:   Certainly.

HER HONOUR:   Have you any further information on that?  There are no cases pending or the like?

MR LEEMING:   There are no cases pending.  I am instructed – and I may even have a copy here.  I do not have it in Court.  I have seen a draft article by Mr Pengilley, an authority in this area, to be published I think in the Trade Practices Law Journal, which states that this a novel decision and on the face of it there must be uncertainty because the two alternate – and, in my submission, inconsistent – judgments of the majority are such that it is not possible to say anything more than that there has been a contravention of this quasi‑criminal provision.  That is the declaration that has been made, but the reasoning is inconsistent and so it is not possible to say exactly how the parties for whom I have appear have contravened section 45.  In the summary of argument which has been filed ‑ ‑ ‑

HER HONOUR:   Yes, I have that.

MR LEEMING:   ‑ ‑ ‑ the differing reasons of the various judges in the Full Court are set out.  If your Honour has paragraph 17 on page 4, your Honour will see that we there say that there was, by a majority, allowing of the appeal but for different reasons.  Then in the next four paragraphs are set out the essence of the reasons for decision of the two majority members, Justice Moore and Justice Merkel.

HER HONOUR:   It may be that this is just a pleading point at the end of the day.

MR LEEMING:   It may be, but we would not say just a pleading point because to have the findings made against my clients that have been made in this case on the basis of a matter that was not pleaded and, on one view, was not even argued, is a serious matter and that takes us back to the interests of justice in the individual case.

HER HONOUR:   Yes, but it does not really go to the importance of the issue that you say justifies expedition.

MR LEEMING:   There is another angle, if I may say so, to the expedition and that is the way in which the courts below have treated these proceedings.  In paragraph 9 of my written submissions on the expedition application I set out the chronology that has occurred in the courts below.  The gist of that is that a high degree of expedition was given both ‑ ‑ ‑

HER HONOUR:   Yes, but that was in circumstances in which – now, I understand nothing about football at all, but was that not in circumstances in which it was not clear who was playing whom?

MR LEEMING:   In the first case, yes, and ‑ ‑ ‑

HER HONOUR:   And that is no longer the case, is it?

MR LEEMING:   That is the case, certainly, and that was the five‑day interlocutory injunction application before Justice Heerey.  Notwithstanding that, the trial, which lasted for eight weeks, and then the appeal both, as your Honour can see from the timetable, were dealt with in a matter which was considerably more expedited than the ordinary course of matters in the Federal Court.  The example that I give in paragraph 9 of Arena v Nader is another case where this Court has taken into account the degree of expedition which, in the courts below, has been afforded to an application in informing this Court’s discretion as to expedition.

Now, we say, of course, every matter in this Court is important and in many cases every matter is urgent.  We certainly do not seek to displace a matter that has already been listed and, of course, we say that other things being equal, first in/first out is the rule that should apply and that is the rule, as I understand it, that is applied by the Registry.  But statute requires this Court to take into account questions of public importance and the fact of the matter is that some matters – some special leave applications have a higher degree of public importance than others.  We say this is one of those and we say that is the matter that lends weight to the proposition that this

proceeding should be, rather than placed at the bottom of a barrel of those matters ready to get on, should be placed towards the top.

Now, that is as high as I put it and the only prejudice that can be pointed to, in my submission, as a result of that application is that one other matter which has not moved the parties to seek expedition and which, in any event, is going to be waiting for 11 or 12 months might go into one list later on.

HER HONOUR:   No, no, they would not be waiting for 11 or 12 months.  What you would be looking at is people who would be up towards the top of the list now being displaced.

MR LEEMING:   But those people having waited for 11 months might have to wait – that one application which already has been waiting for 11 months might have to wait for 12 months.  We do not know what that is, but as a result of what I said, my submission is that that application, whichever it is, that unidentified one, probably does not contain the issues of public importance that this one does.

HER HONOUR:   We would not know.  You cannot say that, Mr Leeming.  We would not know.

MR LEEMING:   If your Honour wishes, I can go into more detail into precisely what the issues of construction are.  I hasten to say they are complex and that is why I have taken your Honour to the summary of argument, but I can do that if your Honour wishes.

HER HONOUR:   No.  You consent to the application, do you, Ms Silink?

MS SILINK:   Your Honour, our position is that we neither consent to nor oppose the application.  It is a matter for the Court to determine whether this application merits priority over the many other applications which are also ready to be heard.  However, we do not wish to be taken as agreeing with any of the arguments put forward, either in the affidavit of Mr Gallop which was filed by the applicants or the arguments made by way of submission, as supporting the grant of expedition in this matter.

In particular, we do not agree that the decision of the Federal Court has produced a state of uncertainty which impacts on decisions being made by the applicant at the moment.  We do not agree that this case involves a question of general importance which warrants expedition.  Nor do we agree that there was expedition granted by the court below which this Court should take into account.  There was no application for expedition made at either trial or appeal level in this case below.

Your Honour, the special leave question raised in my friend’s summary of argument is whether a provision is exclusionary within the meaning of section 4D of the Trade Practices Act if it prevents, restricts or limits the supply of services in events which are foreseen but neither expected nor desired.  In our submission, your Honour, that is a question of the application of the law as it is understood now simply to the facts of the case and that is precisely how the case was pleaded and how the case was decided.  The case was pleaded on alternate grounds.  The majority members decided in support of one of the grounds of the application; the other member of the majority decided in respect of one of the other grounds; and neither needed to go any further in order to uphold the appeal.

There is no state of uncertainty with respect to what action the applicants might take.  The applicants have announced that the competition structure for the NRL football competition from 2002 through to 2005.  No grant of expedition is going to affect that.  There is no decision pending the determination of this application or, indeed, any hearing, if it gets that far, that will affect what the applicants do.  In respect of decisions beyond 2005 and the ability of the applicants to limit the number of teams playing in a competition some five years hence ‑ ‑ ‑

HER HONOUR:   Not five years.

MS SILINK:   I am sorry, your Honour?

HER HONOUR:   Not five years.

MS SILINK:   From 2005 onwards.  From 2005

HER HONOUR:   Yes.  It is still 2001, yes.  Nearly 2002.

MS SILINK:   Yes.  So one of the arguments submitted in the affidavit of Mr Gallop is that there is an uncertainty about the applicants’ ability to limit the number of teams in the future.  By reason of their announcement, we are talking about the ability of the applicants to limit the number of teams from 2005.  We say even in respect of that there is no uncertainty by reason of the decision of the Full Court by reason of the fact that the applicants are no longer competitors.  The facts which gave rise to these proceedings concerned a decision made by the first and third applicants whilst they were competitors, so that the factual basis for the case is now long superseded.  So for those reasons, your Honour – and I am happy to develop some of the other matters ‑ ‑ ‑

HER HONOUR:   Well, you do not oppose the application?

MS SILINK:   We do not oppose it, but we do not want to be taken as agreeing that there is any present uncertainty or prejudice to the applicants.

HER HONOUR:   Yes.  They do not claim any prejudice.  They claim the public importance of the legal issue.

MS SILINK:   And we take issue with that, your Honour.  It is not a question of developing or interpreting the law.  It is a question of the application of the law to the particular facts of that case.  I agree with my friend that they are reasonably complex.  I am happy to take your Honour to those.

HER HONOUR:   No, that is not necessary.

MS SILINK:   But we say there is nothing beyond a question of the application of the law to those facts involved in this appeal.

HER HONOUR:   For someone not opposing it, you have done a very good job of answering Mr Leeming’s matters.  Thank you, Ms Silink.  Mr Leeming, there being no particular prejudice shown to the applicants, I would not be minded to expedite it beyond the first special leave date next year.

MR LEEMING:   We are perfectly content with that, your Honour.

HER HONOUR:   So that would be expedited to be heard, I assume in Sydney, on 15 February 2002.

MR LEEMING:   We are most grateful.

HER HONOUR:   Now, what about the costs of this application though?  What am I to do with that?  Each party to pay their own costs of this application?

MR LEEMING:   No.  I had not told your Honour.  The applicants have already offered to pay the respondents’ costs of the special leave application and the appeal. 

HER HONOUR:   Including this application?

MR LEEMING:   That must be within the agreement.  If your Honour would certify for counsel, then the costs will look after themselves.

HER HONOUR:   Very well.  I will certify for the attendance of counsel and note that Mr Leeming has indicated that there is a costs agreement between the parties with which this Court need not concern itself.

MS SILINK:    May it please the Court.

AT 10.00 AM THE MATTER WAS CONCLUDED