Seven Cable Television Pty Ltd v Telstra Corp Ltd

[2000] FCA 650

FEDERAL COURT OF AUSTRALIA

Seven Cable Television Pty Ltd v Telstra Corp Ltd [2000]
FCA 650

SEVEN CABLE TELEVISION PTY LIMITED v
TELSTRA CORPORATION LIMITED & ORS
N 1095 OF 1999

TAMBERLIN J
SYDNEY
17 MAY 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1095 OF 1999

BETWEEN:

SEVEN CABLE TELEVISION PTY LIMITED
(ACN 082 901 442)
APPLICANT

AND:

TELSTRA CORPORATION LIMITED
(ACN 051 775 556)
FIRST RESPONDENT

TELSTRA MULTIMEDIA PTY LIMITED
(ACN 069 279 072)
SECOND RESPONDENT

TELSTRA MEDIA PTY LIMITED
(ACN 069 279 027)
THIRD RESPONDENT

THE NEWS CORPORATION LIMITED
(ACN 007 910 330)
FOURTH RESPONDENT

NEWS LIMITED
(ACN 007 871 178)
FIFTH RESPONDENT

SKY CABLE PTY LIMITED
(ACN 069 799 640)
SIXTH RESPONDENT

FOXTEL MANAGEMENT PTY LIMITED
(ACN 068 671 938)
SEVENTH RESPONDENT

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
EIGHTH RESPONDENT

FOXTEL MANAGEMENT PTY LIMITED
(ACN 068 671 938)
FIRST CROSS CLAIMANT

SKY CABLE PTY LIMITED
(ACN 069 799 640)
SECOND CROSS CLAIMANT

SEVEN CABLE TELEVISION PTY LIMITED
(ACN 082 901 442)
FIRST CROSS RESPONDENT

TELSTRA MULTIMEDIA PTY LIMITED
(ACN 069  279 072)
SECOND CROSS RESPONDENT

AUSTRALIAN COMPETITION & CONSUMER COMMISSION
THIRD CROSS RESPONDENT

TELEVISION & RADIO BROADCASTING SERVICES AUSTRALIA PTY LIMITED
(ACN 070 677 717)
FOURTH CROSS RESPONDENT

TELSTRA MEDIA PTY LIMITED
(ACN 069 279 027)
FIFTH CROSS RESPONDENT

JUDGE:	TAMBERLIN J
DATE OF ORDER:	8 MAY 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The Notice of Motion is dismissed with costs

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	N 1095 OF 1999

BETWEEN:

SEVEN CABLE TELEVISION PTY LIMITED
(ACN 082 901 442)
APPLICANT

AND:

TELSTRA CORPORATION LIMITED
(ACN 051 775 556)
FIRST RESPONDENT

TELSTRA MULTIMEDIA PTY LIMITED
(ACN 069 279 072)
SECOND RESPONDENT

TELSTRA MEDIA PTY LIMITED
(ACN 069 279 027)
THIRD RESPONDENT

THE NEWS CORPORATION LIMITED
(ACN 007 910 330)
FOURTH RESPONDENT

NEWS LIMITED
(ACN 007 871 178)
FIFTH RESPONDENT

SKY CABLE PTY LIMITED
(ACN 069 799 640)
SIXTH RESPONDENT

FOXTEL MANAGEMENT PTY LIMITED
(ACN 068 671 938)
SEVENTH RESPONDENT

AUSTRALIAN COMPETITION AND
CONSUMER ASSOCIATION
EIGHTH RESPONDENT

FOXTEL MANAGEMENT PTY LIMITED
(ACN 068 671 938)
FIRST CROSS CLAIMANT

SKY CABLE PTY LIMITED
(ACN 069 799 640)
SECOND CROSS CLAIMANT

SEVEN CABLE TELEVISION PTY LIMITED
(ACN 082 901 442)
FIRST CROSS RESPONDENT

TELSTRA MULTIMEDIA PTY LIMITED
(ACN 069  279 072)
SECOND CROSS RESPONDENT

AUSTRALIAN COMPETITION & CONSUMER COMMISSION
THIRD CROSS RESPONDENT

TELEVISION & RADIO BROADCASTING SERVICES AUSTRALIA PTY LIMITED
(ACN 070 677 717)
FOURTH CROSS RESPONDENT

TELSTRA MEDIA PTY LIMITED
(ACN 069 279 027)
FIFTH CROSS RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	17 MAY 2000
PLACE:	SYDNEY

REASONS FOR DECISION

1. On 8 May 2000 after having heard the submissions of the parties I made orders dismissing with costs the Notice of Motion filed on 27 March by the first, second and third respondents (“Telstra”).  I now publish my reasons for that decision.

2. Telstra’s Motion sought leave to amend its Defence and its Amended Cross Claim to include a new ground of challenge to the validity of a decision of the Australian Competition and Consumer Commission (“ACCC”) made on 30 June 1997 (“the Deeming Statement”).  This new ground was in addition to challenge to the validity of the Deeming Statement already pleaded.

3. On 28 January this year the following order was made by consent:

   “4.      Issues dealing with the validity of:

   (a)[the Deeming Statement] under which the Australian Competition & Consumer Commission (“ACCC”) purported to specify a broadcasting access service as an eligible service pursuant to section 39 of the Telecommunications (Transitional Provisions & Consequential Amendment) Act 1997 (Cth);

   (b)       …

   including the issues raised by paragraphs 33 to 42 inclusive of the Amended Cross Claim of Foxtel Management Pty Limited and Sky Cable Pty Limited be tried at the same time as proceeding Nos N1088 of 1999 and N1150 of 1999.” (“the referral”)

4. The numbered proceedings noted in the referral were then pending before Wilcox J, and also concerned a challenge to the validity of the Deeming Statement on public administrative law grounds.  The purpose underlying the referral was specifically to delineate the separate questions to be determined by his Honour and myself.  It separated out the administrative law issues from questions concerning the existence of a contractual right being heard by me. The referral was in respect of all issues relating to the validity of the Deeming Statement.  It was not limited to any particular grounds of invalidity.  Nor was it was made on a conditional or tentative basis, such that any issues relating to validity not entertained by Wilcox J might be subsequently heard by me. 

5. On 27 March 2000, after a hearing extending over six days and after receiving further written submissions, I delivered judgment on the issues which were to be determined by me.  I concluded that there was no contractual right preventing Telstra granting access to its network to Seven Cable Television or TARBS.

6. The issues referred to Wilcox J came on for hearing before his Honour on 13 March 2000.  On 14 March an application was made by Telstra to amend the grounds of challenge to the Deeming Statement by including a new ground: that a relevant administrative decision was improperly made by a committee of the ACCC rather than the ACCC proper.  This late application was refused by Wilcox J who gave reasons for his decision on that date.  The question of whether or not to allow the amendment was one for his Honour’s discretion.  When exercising his discretion His Honour considered: that the application was made after the hearing had commenced; that he did not accept that no further evidence would be necessary to make out the new ground; that at the request of the parties, early hearing dates had been assigned to the proceedings and the amendment was likely to disrupt the orderly progress of the trial for which there was limited time available; and the procedural history of the matter including the delay of Telstra in notifying the amendments after receipt of the relevant documents.

7. In regard to the last point there was some dispute between the parties as to the reasonableness of the time for inspection of these documents.  Determination of that matter was for his Honour.  On weighing the considerations outlined above his Honour refused to disturb the arrangements then in place and dismissed the application. His Honour then proceeded to hear the substantive issues over a further seven days and reserved his decision.  At the time Telstra’s motion was heard before me, Wilcox J had notified the parties that he was intending to deliver his judgment later in the day.

8. By the present application Telstra again seeks leave to amend the pleadings so as to raise the matters that Wilcox J refused to hear.  This is done notwithstanding the referral, the decision of Wilcox J on 14 March, or that the arguments and evidence before me did not concern the validity of the Deeming Statement except in the most peripheral way.  Telstra contends that because the issues have not been litigated it is convenient and appropriate for me to determine the merits of the new grounds, contrary to the determination of Wilcox J.   The fourth, fifth, sixth and seventh respondents did not oppose the grant of leave to make the amendments, but leave was opposed by all of the other parties. 

9. There was argument before me as to whether the decision of Wilcox J gave rise to any form of estoppel, or made the issue res judicata.  It was said that the Court may, depending on the decision of his Honour to be delivered in the afternoon, have no power to grant leave.  I do not find it necessary to decide this question because as a matter of discretion I have reached the conclusion that Telstra’s application should not be granted.

10. The considerations that lead me to this conclusion are as follows:

    1.The agreed basis on which the proceedings have been conducted by both Judges was that all relevant issues concerning the validity of the Deeming Statement should be determined by Wilcox J.  It was not the case that only some of these issues were separated out and referred to his Honour. All parties and the Court have proceeded on this basis.  The present application is directly contrary to that underlying arrangement and to the referral, an order of this Court.

    2.The referral was not made on a conditional or tentative basis such that any issues of validity not entertained by Wilcox J might be heard by me.  Indeed in the circumstances of this matter, even without the prior application to Wilcox J, I would not have been likely to grant Telstra leave.

    3.The correctness of his Honour’s refusal can be canvassed on an appeal from his Honour’s decision.  In my view, should Telstra wish to pursue the point, this is the appropriate course in the present case.

    4.The application for leave to amend has already been considered by his Honour who was fully seised of all the procedural history, the relevant issues, and the determinations made in the course of that history.  His Honour has given reasons for his decision.  To allow a collateral reopening of the question raised and determined before his Honour would be contrary to the Court’s protocol and the policy of discouraging the duplication of proceedings.

    5.The general undesirability of one trial Judge reconsidering at first instance the interlocutory determination of another Judge of the Court, with the attendant possibility of inconsistent rulings.  True it is that in earlier times it was the practice, on occasions, for Counsel to approach a second Judge in order to obtain an interlocutory injunction or an order nisi where another Judge had previously refused to grant such relief.  However this is not a current practice which I have encountered and is something that in my view should be strongly discouraged.

    6.The Deeming Statement has been public knowledge for several years and has been under challenge since late 1998.  Moreover the relevant documents were furnished to Telstra’s representatives several weeks before any application was made to plead the new ground.  In this context, the lateness of the application is an important consideration.

    7.The delay and disruption to the progress of this expedited litigation occasioned by revisiting the discretionary interlocutory determination of Wilcox J, and the obvious prejudice to the other parties in relation to receiving an early determination of their rights, is an important consideration.  I note that Telstra has submitted no evidence as to prejudice has been led.  However in my view the prejudice occasioned by delay in this matter is obvious.

11. Having regard to the above considerations, and the agreed need for an urgent and expedited determination of the issues in this matter, I dismissed Telstra’s Motion with costs.

12. An application was made by Seven Cable Television for indemnity costs on the ground that the Notice of Motion was an abuse of process.  However, important questions were raised as to the effect and operation of the orders of Wilcox J in the particular circumstances of this case, and the consequence of his Honour’s forthcoming judgment.  I do not consider that the submissions made for Telstra were so untenable as to warrant the award of indemnity costs. Accordingly the basis for payment of costs should be the usual party to party basis.

I certify that the preceding numbered twelve (12) paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:             17 May 2000

Counsel for the Applicant:	Mr C Moore
Solicitor for the Applicant:	Freehill Hollingdale & Page
Counsel for the First to Third Respondents:	Mr T Bathurst QC Mr J Griffiths
Solicitor for the First to Third Respondents:	Mallesons Stephen Jaques
Counsel for the Fourth to Seventh Respondents:	Mr A J Meagher SC Mr M Dicker
Solicitors for the Fourth to Seventh Respondents:	Allen Allen & Hemsley
Counsel for the Eighth Respondent:	Mr A Robertson SC Mr N J Williams
Solicitor for the Eighth  Respondent:	Australian Government Solicitor
Counsel for the Second Cross-Respondent:	Mr N Cotman SC
Solicitor for the Second Cross-Respondent:	Peter Cornelius & Partners
Date of Hearing:	8 May 2000
Date of Order:	8 May 2000
Date of Reasons for Judgment:	17 May 2000