Seven Network Limited v News Limited (No 16)
[2006] FCA 574
•22 MAY 2006
FEDERAL COURT OF AUSTRALIA
Seven Network Limited v News Limited (No 16)
[2006] FCA 574PRACTICE AND PROCEDURE – leave sought to amend Statement of Claim – ninetieth day of trial - whether respondents would suffer significant prejudice
Held: If the applicants were granted leave to amend the Statement of Claim, the respondents would suffer significant prejudice through the loss of the opportunity to investigate factual matters relevant to the proposed amendment.
The State of Queensland v J L HoldingsPty Limited (1997) 189 CLR 146 cited
Cropper v Smith (1884) 26 Ch D 700 citedSEVEN NETWORK LIMITED and ANOR v NEWS LIMITED and ORS
NSD 1223 of 2002SACKVILLE J
SYDNEY22 MAY 2006
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1223 of 2002
BETWEEN:
SEVEN NETWORK LIMITED
(ACN 052 816 789)
FIRST APPLICANTC7 PTY LIMITED
(ACN 082 901 442)
SECOND APPLICANTAND:
NEWS LIMITED
(ACN 007 871 178)
FIRST RESPONDENTSKY CABLE PTY LIMITED
(ACN 069 799 640)
SECOND RESPONDENTTELSTRA MEDIA PTY LIMITED
(ACN 069 279 027)
THIRD RESPONDENTFOXTEL MANAGEMENT PTY LIMITED
(ACN 068 671 938)
FOURTH RESPONDENTTELSTRA CORPORATION LIMITED
(ACN 051 775 556)
FIFTH RESPONDENTTELSTRA MULTIMEDIA PTY LIMITED
(ACN 069 279 072)
SIXTH RESPONDENTPUBLISHING AND BROADCASTING LIMITED
(ACN 009 071 167)
SEVENTH RESPONDENTNINE NETWORK AUSTRALIA PTY LIMITED
(ACN 008 685 407)
EIGHTH RESPONDENTPREMIER MEDIA GROUP PTY LIMITED
(ACN 065 445 418)
NINTH RESPONDENTAUSTRALIAN RUGBY FOOTBALL LEAGUE LIMITED
(ACN 003 107 293)
TWELFTH RESPONDENTNATIONAL RUGBY LEAGUE INVESTMENTS PTY LIMITED
(ACN 081 778 538)
THIRTEENTH RESPONDENTNATIONAL RUGBY LEAGUE LIMITED
(ACN 082 088 962)
FOURTEENTH RESPONDENTFOXTEL CABLE TELEVISION PTY LIMITED
(ACN 069 008 797)
FIFTEENTH RESPONDENTOPTUS VISION PTY LIMITED
(ACN 066 518 821)
SIXTEENTH RESPONDENTAUSTAR UNITED COMMUNICATIONS LIMITED
(ACN 087 695 707)
SEVENTEENTH RESPONDENTAUSTAR ENTERTAINMENT PTY LIMITED
(ACN 068 104 530)
EIGHTEENTH RESPONDENTIAN HUNTLY PHILIP
NINETEENTH RESPONDENTNEWS PAY TV PTY LIMITED
(ACN 085 095 487)
TWENTIETH RESPONDENTPBL PAY TV PTY LIMITED
(ACN 084 940 367)
TWENTY-FIRST RESPONDENTSINGTEL OPTUS PTY LIMITED
(ACN 052 833 208)
TWENTY-SECOND RESPONDENTJUDGE:
SACKVILLE J
DATE OF ORDER:
22 MAY 2006
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The applicants’ motion filed on 10 May 2006 be dismissed.
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 1223 of 2002
BETWEEN:
SEVEN NETWORK LIMITED
(ACN 052 816 789)
FIRST APPLICANTC7 PTY LIMITED
(ACN 082 901 442)
SECOND APPLICANTAND:
NEWS LIMITED
(ACN 007 871 178)
FIRST RESPONDENTSKY CABLE PTY LIMITED
(ACN 069 799 640)
SECOND RESPONDENTTELSTRA MEDIA PTY LIMITED
(ACN 069 279 027)
THIRD RESPONDENTFOXTEL MANAGEMENT PTY LIMITED
(ACN 068 671 938)
FOURTH RESPONDENTTELSTRA CORPORATION LIMITED
(ACN 051 775 556)
FIFTH RESPONDENTTELSTRA MULTIMEDIA PTY LIMITED
(ACN 069 279 072)
SIXTH RESPONDENTPUBLISHING AND BROADCASTING LIMITED
(ACN 009 071 167)
SEVENTH RESPONDENTNINE NETWORK AUSTRALIA PTY LIMITED
(ACN 008 685 407)
EIGHTH RESPONDENTPREMIER MEDIA GROUP PTY LIMITED
(ACN 065 445 418)
NINTH RESPONDENTAUSTRALIAN RUGBY FOOTBALL LEAGUE LIMITED
(ACN 003 107 293)
TWELFTH RESPONDENTNATIONAL RUGBY LEAGUE INVESTMENTS PTY LIMITED
(ACN 081 778 538)
THIRTEENTH RESPONDENTNATIONAL RUGBY LEAGUE LIMITED
(ACN 082 088 962)
FOURTEENTH RESPONDENTFOXTEL CABLE TELEVISION PTY LIMITED
(ACN 069 008 797)
FIFTEENTH RESPONDENTOPTUS VISION PTY LIMITED
(ACN 066 518 821)
SIXTEENTH RESPONDENTAUSTAR UNITED COMMUNICATIONS LIMITED
(ACN 087 695 707)
SEVENTEENTH RESPONDENTAUSTAR ENTERTAINMENT PTY LIMITED
(ACN 068 104 530)
EIGHTEENTH RESPONDENTIAN HUNTLY PHILIP
NINETEENTH RESPONDENTNEWS PAY TV PTY LIMITED
(ACN 085 095 487)
TWENTIETH RESPONDENTPBL PAY TV PTY LIMITED
(ACN 084 940 367)
TWENTY-FIRST RESPONDENTSINGTEL OPTUS PTY LIMITED
(ACN 052 833 208)
TWENTY-SECOND RESPONDENTJUDGE:
SACKVILLE J
DATE:
22 MAY 2006
PLACE:
SYDNEY
REASONS FOR JUDGMENT
By a motion filed in Court on 10 May 2006, the ninetieth day of the trial, the applicants (‘Seven’) seek leave, pursuant to the Federal Court Rules (‘FCR’), O 13 r 2(1), to amend the Fourth Further Amended Statement of Claim (‘the Statement of Claim’). The lay evidence in the trial is now complete and the Court is currently hearing evidence from experts on competition and market issues.
THE PROPOSED AMENDMENT
The proposed amendment is to para 222(a) of the Statement of Claim. Paragraph 222 pleads a number of provisions contained in the Content Supply Agreement dated 5 March 2002 (‘CSA’), entered into by (among others) the fourth respondent (‘Foxtel’) and the sixteenth respondent (‘Optus’). Paragraph 222, including the proposed amendments to subpara (a) in bold, is as follows:
‘The Foxtel/Optus content supply agreement contains provisions to the following effect (“the Foxtel/Optus content supply agreement provisions”):
(a)Optus has the right to receive and broadcast all of Foxtel’s channels over the period from 1 November 2002 to 31 December 2010 on payment of a licence fee calculated as a (confidential) percentage of the retail price charged by Foxtel for the Foxtel Service multiplied by the number of Optus subscribers.
(b)If and when Optus commences providing its programs in digital format, Optus will be obliged to receive and broadcast all of Foxtel’s channels.
(c)Optus must make all of the channels which it produces (or may produce in the future) available for broadcast by Foxtel on Foxtel’s cable pay television service.
(d)If Optus acquires a channel from any person other than Foxtel, and the channel is of the same or a similar genre of programming as a Foxtel channel, then Optus must place that channel on a higher tier than the Foxtel channel.
(e)If Optus acquires any new movie or sports rights to broadcast on a pay television service supplied via cable, it must arrange for the rights to be made available to Foxtel for broadcast on Foxtel’s cable pay television service.’
The effect of the proposed amendment to para 222(a) is to make it clear that what Seven describes as the ‘retail minus formula’ contained in cl 4 of the CSA is one of the ‘Foxtel/Optus content supply agreement provisions’ (‘CSA provisions’) identified in para 222. For present purposes, the effect of the retail minus formula in cl 4 of the CSA is accurately stated in the proposed amendment to para 222(a).
The significance of the proposed amendment is that it expands the scope of Seven’s pleading that the effect or likely effect of the CSA provisions is to substantially lessen competition in the retail pay television market or, alternatively, in the retail television market. This can be seen from paras 321 to 325 of the Statement of Claim, which must be read together with para 222:
‘321The effect or likely effect of the [CSA provisions] is that there will be no product differentiation between Foxtel and Optus, for the following reasons:
(a)Pursuant to the provisions, Optus can obtain all of Foxtel’s channels and Foxtel can obtain all of Optus’ channels. Each of Foxtel and Optus has an incentive to broadcast all of the channels shown by the other to prevent its competitor from having a point of differentiation which could be used to attract subscribers, and thus obtain a competitive advantage.
(b)By making available Foxtel channels to Optus, and obliging Optus to provide all of its channels to Foxtel, the provisions remove the incentive of Optus to acquire or develop channels which compete with existing Foxtel channels. The acquisition of such channels will not confer a competitive advantage on Optus and would not be cost effective, having regard to Optus’ commitment to pay for Foxtel channels which it has acquired.
322The removal of product differentiation was also a substantial purpose of the [CSA provisions], as follows:
(a)A substantial purpose of the provisions was to enable both Foxtel and Optus to obtain a greater range of programming whilst lowering the cost of that programming.
(b)A substantial purpose of the provisions was to achieve the result in (a) by ensuring that Foxtel and Optus had the same range of channels, thus preventing Foxtel and Optus from competing with each other in the acquisition of programming and conferring upon Foxtel and Optus greater bargaining power in negotiating with the suppliers of programming and channels.
323Further, the effect or likely effect of the [CSA provisions] is that Foxtel and Optus will offer their pay television services at the same or similar prices, being higher prices than would have been charged in the absence of the [CSA], as follows:
(a)The applicants repeat paragraph 321.
(b)Foxtel and Optus will therefore supply a homogenous product, which will render it very likely that there will be price signalling between Foxtel and Optus.
(c)The existence of price signalling and price matching means that there will be little incentive to compete on price, with the result that the price of the Foxtel and Optus services will be higher than it would have been had there been competition on price between them.
324If Foxtel and Optus had not entered into and given effect to the [CSA provisions], then Optus would continue to offer different programming from Foxtel and would compete against Foxtel on price and on quality and nature of programming.
325By reason of the matters pleaded in paragraph 321 to 324, the purpose and effect, or likely effect, of the [CSA provisions] is to substantially lessen competition in the retail pay television market, or alternatively the retail television market.’
Paragraph 325 adopts the language of s 45(2) of the Trade Practices Act 1974 (Cth) (‘TP Act’). The sub-section relevantly provides that a corporation shall not:
‘(a)make a contract or arrangement, or arrive at an understanding, if:
(i)…; or
(ii)a provision of the proposed contract, arrangement or understanding has the purpose, or would have or be likely to have the effect, of substantially lessening competition; or
(b)give effect to a provision of a contract, arrangement or understanding … if that provision:
(i)…; or
(ii)has the purpose, or has or is likely to have the effect, of substantially lessening competition.’
If para 222 is amended as Seven proposes and if no amendments are made to paras 321 to 325 of the Statement of Claim, it is arguable that Seven would be pleading that the CSA provisions, including the retail minus formula incorporated in cl 4 of the CSA, had the purpose of substantially lessening competition (see para 322). However, Mr Sheahan SC, who appears with Mr Darke for Seven, disclaimed any intention to rely on the retail minus formula to mount a ‘purpose case’. He said that Seven wishes to rely on the retail minus formula only as an element in Seven’s case that the CSA provisions had the effect or likely effect of substantially reducing competition.
THE RESPONDENTS’ OBJECTION
The respondents object to Seven being granted leave to make the proposed amendment to para 222. Mr Bannon SC, who appears with Mr Leeming and Mr Hewitt for Optus, submitted on behalf of the respondents that it is far too late for leave to be given to make the amendment. He argued that the amendment would introduce a significant new issue into the proceedings and would require Optus and the other respondents to pursue lines of factual inquiry that to date have been unnecessary. Consequently, so he contended, the amendment would cause the respondents to suffer material prejudice since, in practice, they would be denied the opportunity to identify and lead evidence bearing on the new issue.
Seven did not file or read any affidavit in support of the motion. I therefore have not been provided with an explanation for Seven’s failure to incorporate a reference to the retail minus provision of the CSA in para 222 of the Statement of Claim. However, the omission from the current pleading apparently was brought home to Seven when Mr Bannon SC objected to a question asked in the cross-examination of Mr Anderson, the former Chief Executive Officer of SingTel Optus Pty Limited. The cross-examiner on behalf of Seven, Mr Karkar QC, sought to ask Mr Anderson whether he recognised at the time that a resale arrangement of the kind Foxtel and Optus were contemplating would make it difficult for Optus to compete with Foxtel on subscriber price (Ts 6674). I rejected the question on the ground that para 222 in its current form does not include the retail minus formula as one of the pleaded CSA provisions. As Mr Bannon pointed out, however, this was not the first time that he had expressly reminded Seven that the case on the anti-competitive effect of the provisions of the CSA was limited to the provisions that had been expressly identified in the Statement of Claim.
IS THE PROPOSED AMENDMENT ‘MERELY CLARIFICATORY’?
Seven’s first submission is that the Statement of Claim in its present form implicitly pleads the retail minus formula and thus the amendment is ‘merely clarificatory, rather than substantive’. I cannot accept this submission.
Paragraph 222 currently identifies five provisions of the CSA, each of which is concerned with the exchange of programming between Foxtel and Optus. Paragraphs 321 and 323 to 325 of the Statement of Claim (bearing in mind that para 322 alleges a proscribed purpose) appear to be concerned with the lack of product differentiation between Foxtel and Optus flowing from the pleaded CSA provisions. It is true that para 323 refers to the absence of ‘incentive to compete on price’, but in context the pleading appears to allege that the lack of incentive is attributable to the supply by both Foxtel and Optus, in consequence of the CSA, of a ‘homogenous product’.
The Statement of Claim, on a fair reading, simply does not allege that the effect of the retail minus formula in cl 4 of the CSA was to reduce price competition between Foxtel and Optus and thus substantially lessen competition in the relevant markets. It is plain in my view that a pleading must identify with precision the provision of a contract, arrangement or understanding which is alleged to have had the effect or likely effect of substantially reducing competition in contravention of s 45(2) of the TP Act. The current pleading does not identify the retail minus formula as such a provision. It follows that Seven is seeking by its proposed amendment to introduce a new element into its case and not merely to clarify an existing pleading.
I have not overlooked the fact that, as Mr Sheahan pointed out, Seven’s written opening identified the retail minus formula in cl 4 of the CSA as a provision that gave little or no incentive for Optus to engage in price competition with Foxtel, or vice versa. However, the respondents complained at the early stages of the trial that matters had been identified in the Seven’s opening that were not within its pleaded case. While the respondents did not single out this particular part of the opening for complaint, they made it clear that they had come to meet the pleaded case, not issues raised for the first time in opening. I endorsed that view at the time. Seven has therefore been on notice from the outset that the pleadings will govern the parameters of this case.
SHOULD LEAVE BE GRANTED?
The Principles
In The State of Queensland v J L HoldingsPty Limited (1997) 189 CLR 146, the joint judgment of Dawson, Gaudron and McHugh JJ cited with approval (at 152-153) a passage from the judgment of Bowen LJ in Cropper v Smith (1884) 26 Ch D 700, at 710, as follows:
‘Now, I think it is a well established principle that the object of Courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. Speaking for myself, and in conformity with what I have heard laid down by the other division of the Court of Appeal and by myself as a member of it, I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or of grace.’
The joint judgment in J L Holdings emphasised (at 154) that the ultimate aim of a court is the attainment of justice and that no principle of case management can supplant that aim. The latter comment reflected the fact that in J L Holdings itself, the application for leave to amend pleadings had been refused by the trial Judge some six months before the hearing was due to commence. The application to amend in the present case has been made towards the end of the hearing in an extraordinarily long and complex case.
If leave could be granted to Seven to amend para 222 without causing significant prejudice to Optus and the other respondents, I would grant the necessary leave, even at this late stage of the proceedings. I would do so notwithstanding the absence of an explanation on affidavit as to the reason for Seven’s failure until now to plead the retail minus formula. The critical question, therefore, is whether the amendment, if made, will occasion significant prejudice to the respondents in the conduct of the trial.
The Question of Prejudice
Mr Sheahan submitted that the amendment would cause no significant prejudice to the respondents because they have in fact addressed the question of whether Optus was an effective competitor on price and quality, both in relation to the period before and the period after the CSA. According to Mr Sheahan, there is no further factual inquiry that the respondents could make that has not already arisen on the pleadings. He pointed out, for example, that Optus’ expert, Professor Hausman, adverted in his report to the fact that Foxtel and Optus now offer ‘essentially the same product for which Optus pays a licence fee determined by reference to Foxtel’s retail price’. Mr Sheahan also directed attention to the fact that one of Seven’s competition experts, Professor Noll, referred in his report to the retail minus formula as eliminating the possibility of price competition between Foxtel and Optus where their services overlap.
Mr Sheahan relied, in addition, on an answer given by Mr Lee, the Chief Executive Officer of the parent corporation of Optus, in response to questions from me. The relevant passage is as follows:
‘Did you anticipate at this time that there would be price competition between Foxtel and Optus, Optus being a reseller of Foxtel programming? ---- I think, given that we had a retail minus margin, there would probably be limited ability for us to compete on the basis of price. We tried to protect ourselves by getting the margin put into the contract, because that was ultimately the level of difference that we could make. But we would ----
You mean the margin … involved in the supply of the Foxtel programs to Optus …? ---- That is correct, and, unless we were prepared to take a loss on this to cross-subsidise some other product which is profitable, we would have a limit to the extent of pricing flexibility we had.’
Mr Bannon pointed out that if the amendment were made, the relevant question for determination would be whether the effect or likely effect of the retail minus formula was that Optus would offer its pay television services at a higher price than it would have charged in the absence of the CSA (Statement of Claim, para 323). One element to consider in addressing that question would be whether Optus would have little incentive after the CSA to compete with Foxtel on price by reason of the retail minus formula in cl 4 of the CSA (para 323(c)).
Mr Bannon submitted that the amendment, if made, would require Optus to compare its ability to compete on price and quality with Foxtel in the absence of the CSA, with its ability to compete on those matters after the execution of the CSA. He acknowledged that there is considerable evidence concerning both the losses sustained by Optus from its pay television operations prior to the CSA and the revenues derived from those operations after the CSA. He also accepted that there is evidence of the prices charged by Optus for its pay television services and of the range and quality of its offerings at the material times. However, he said that neither Optus nor the other respondents had any reason, in view of the pleadings, to inquire in detail as to Optus’ cost structure during the relevant periods or to analyse its cost structure on the hypothetical basis that Optus and Foxtel did not enter the CSA. To permit Seven to amend at this stage would, so he argued, effectively deprive the respondents of an opportunity to undertake potentially important lines of inquiry.
In the course of argument, I observed to Mr Bannon that it can be very difficult for a trial Judge to gainsay counsel’s assertion that particular inquiries could or would have been made had the opponent conducted the case differently. Mr Bannon responded as follows:
‘MR BANNON: We definitely would have investigated a comparative analysis of the cost structure before and after. And what evidence we would have led on that would have depended on the outcome of that exercise. On that I can't be more definite as to precisely what would have happened. But what I can tell your Honour is we know on the evidence that was there - and we did lead a lot of evidence on cost structure pre CSA to show that we were suffering massive losses and to show that each new customer with installation costs cost us more money than net revenue.
HIS HONOUR: What other evidence of cost structure might you have wished to adduce? Can you give me some examples [?]
MR BANNON: We then look at the situation of how much money we made post the CSA at particular prices, both on -- and that requires an analysis of revenue both on pay TV per se and on the bundled products.
HIS HONOUR: That would be evidence of Optus' position post CSA [?]
MR BANNON: Yes.’
In essence, Mr Bannon asserted that the respondents would need to explore the extent to which Optus was constrained in its pricing decisions by its cost structure and by its marketing strategies. He said that the inquiry would need to address the position in the assumed absence of the CSA and also on the basis that the CSA was in place. Mr Bannon correctly pointed out that the evidence showed that Optus had a strategy of bundling its pay television service with its telephony services. The opportunities for Optus to compete on price with Foxtel therefore depended, in part, on the extent to which Optus was prepared to use profits from its telephony services to cross-subsidise the prices charged for its pay television service. Mr Bannon specifically rejected the suggestion made by Seven that it could safely be assumed that Optus, after the CSA, would not have been prepared to charge less for its pay television service than the price it had to pay Foxtel for program content pursuant to the retail minus formula.
If the proposed amendment were to be allowed, the relevant question for determination would be (as Mr Bannon suggested) whether the effect, or likely effect, of the retail minus formula with CSA was that Optus would have offered its television service at a higher price than it would have charged subscribers in the absence of the CSA. That inquiry would require account to be taken of the differences in the quality of the service in each case, since price can be a function of quality.
Mr Bannon’s contention that Optus, in particular, would be prejudiced by the amendment receives some support from the passage in Mr Lee’s evidence relied on by Seven. Mr Lee’s evidence was that the CSA limited Optus’ price flexibility except to the extent Optus was prepared to take a loss on its pay television service in order to support its profitable telephony operations. Contrary to Mr Sheahan’s submission, Mr Lee’s evidence does not make it clear of itself that Optus was not prepared to compete with Foxtel in price post the CSA. Nor does it demonstrate that Optus, in the hypothetical absence of the CSA, would necessarily have charged lower prices than it in fact charged after the CSA. Much less does Mr Lee’s evidence demonstrate the latter proposition, when it is borne in mind that the relevant comparison requires attention to be paid to any changes in the quality of Optus’ pay television service attributable to the CSA.
In these circumstances, I think that I must accept Mr Bannon’s assurance that, in order to meet the proposed amendment, Optus would wish to explore material relating to its likely cost and price structure in the absence of the CSA. That would include an inquiry as to the extent that Optus would have been prepared to bear losses on its pay television service in the light of its policy of bundling pay and telephony services. The inquiry would also involve the likely approach of Optus executives to pay television pricing, on the basis of certain counter-factual assumptions that have not been fully explored in the evidence.
I therefore conclude that if Seven were granted leave to amend the Statement of Claim Optus and the other respondents would suffer significant prejudice in the sense that they would be deprived of the opportunity to investigate factual matters that are relevant to the proposed amendment. I reach this conclusion with some reluctance as I suspect, despite the absence of affidavit evidence, that Seven’s failure to plead the retail minus formula in para 222 of the Statement of Claim was inadvertent rather than deliberate. I also must confess that I had erroneously assumed, when I asked Mr Lee the questions quoted in para 17 above, that an issue did arise in the proceedings on the current pleadings concerning the retail minus formula. Nonetheless, as Seven rightly accepted, the respondents are entitled, as they have done from the outset, to insist that the case should be fought on the pleadings. They are also entitled to resist an application to amend that would occasion them significant prejudice in defending the claims made against them.
In a different kind of case it might be possible to overcome the prejudice I have identified by adjourning the proceedings and permitting the parties to recall witnesses and perhaps to file further expert reports. Seven has not suggested that such a course is feasible in the present case and I do not think that it is. Too much water has flowed under the forensic bridge.
Seven’s motion must be dismissed.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.
Associate:
Dated: 22 May 2006
Counsel for the sixteenth and twenty-second respondents:
Mr A Bannon SC with Mr M Leeming and Mr J Hewitt
Solicitors for the sixteenth and twenty-second respondents:
Atanaskovic Hartnell
Counsel for the applicants:
Mr J Sheahan SC with Mr M Darke
Solicitors for the applicants:
Freehills
Date of hearing:
15 May 2006
Date of judgment:
22 May 2006
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