Seven Network Ltd v Australian Competition and Consumer Commission
[2008] FCA 411
•28 March 2008
FEDERAL COURT OF AUSTRALIA
Seven Network Ltd v Australian Competition & Consumer Commission
[2008] FCA 411Trade Practices Act 1974 (Cth) Part XIC
Seven Network v Australian Competition and Consumer Commission (2007) 164 FCR 127
SEVEN NETWORK LIMITED v AUSTRALIAN COMPETITION AND CONSUMER COMMISSION, FOXTEL MANAGEMENT PTY LTD AND FOXTEL CABLE TELEVISION PTY LTD
NSD 639 OF 2007BUCHANAN J
28 MARCH 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 639 OF 2007
BETWEEN:
SEVEN NETWORK LIMITED
ApplicantAND:
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
First RespondentFOXTEL MANAGEMENT PTY LTD
Second RespondentFOXTEL CABLE TELEVISION PTY LTD
Third Respondent
JUDGE:
BUCHANAN J
DATE OF ORDER:
28 MARCH 2008
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. It is declared that the Special Access Undertaking by FOXTEL Management Pty Limited (ACN 068 671 938) for and on behalf of the FOXTEL Partnership and FOXTEL Cable Television Pty Ltd (ACN 069 008 797) under Subdivision B of Division 5 Part XIC of the Trade Practices Act 1974 (Cth) and dated 1 December 2006 is, within the meaning of s 152CBA(5) and s 152AL(7) of the said Act, subject to the following limitation:
1. FOXTEL is only obliged to supply and continue to supply the Digital Set Top Unit Service described in Appendix 1 to the Access Seeker:
(A)in the case of services broadcast via cable, where the Digital Set Top Unit to which the Digital Set Top Unit Service is to be supplied is actually in use by a Subscriber for reception of FOXTEL’s digital Subscription Television Services; or
(B)in the case of services broadcast via satellite, where the Digital Set Top Unit to which the Digital Set Top Unit Service is to be supplied is actually in use by a Subcriber for reception of FOXTEL’s expanded digital Subscription Television Services;
2. FOXTEL has no obligation to supply the Digital Set Top Unit Service described in Appendix 1 where the Digital Set Top Unit to which the Digital Set Top Unit Service is to be supplied is not in use by a Subscriber for reception of FOXTEL’s digital Subscription Televsion Services (if broadcast via cable) or FOXTEL’s expanded digital Subscription Television Services (if broadcast via satellite).’
2.The application is otherwise dismissed.
3.The notice of motion filed by the second and third respondents is dismissed.
4.The applicant pay the first respondent’s costs of and incidental to the proceedings on a party and party basis, to be taxed if not agreed.
5.There be no order as to costs as between the applicant and the second and third respondents.
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 639 OF 2007
BETWEEN:
SEVEN NETWORK LIMITED
ApplicantAND:
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
First RespondentFOXTEL MANAGEMENT PTY LTD
Second RespondentFOXTEL CABLE TELEVISION PTY LTD
Third Respondent
JUDGE:
BUCHANAN J
DATE:
28 MARCH 2008
PLACE:
SYDNEY
REASONS FOR JUDGMENT
BUCHANAN J:
In the primary judgment in this matter (Seven Network v Australian Competition and Consumer Commission (2007) 164 FCR 127) I concluded that a challenge by Seven Network to a decision of the ACCC to accept a special access undertaking offered by Foxtel under Part XIC of the Trade Practices Act 1974 (Cth) did not succeed. However, I accepted that certain provisions forming part of the undertaking which were referred to as ‘tying clauses’ operated as a limitation upon the special access undertaking. At [102] of the judgment, I suggested a form of declaration which appeared to me might be suitable and appropriate to reflect the conclusions to which I had come. However, I indicated that I would take further submissions about that issue.
In further written and oral submissions, Seven Network sought changes to the form of the declaration which I had suggested. I heard argument about that matter today. One of the changes sought was to refer to digital set top units in a way which meant they were not confined to a Digital Set Top Unit as defined in the special access undertaking and in the clauses I found operated as a limitation on the special access undertaking. I am not prepared to make that alteration because I am not satisfied that it would not change the effect of the clauses which I concluded constituted a limitation upon the special access undertaking. On the other hand, if the alteration does not change the effect of those clauses there is no reason to make the change which was suggested.
Other changes suggested involved drafting changes to state that the special access undertaking was ‘only in relation to’ certain matters, and conversely, ‘not an undertaking in relation to’ certain other matters. My reservations about these proposals are the same as about the earlier change suggested. I am not prepared to adopt changes in language which have the effect of altering the effect of the tying clauses. If, on the other hand, the changes in language do not have that effect it seems to me unnecessary that I should depart from the form of the declaration which I suggested in the earlier judgment. In those circumstances, I will make a declaration in the form in which I indicated I thought appropriate in [102] of the earlier judgment.
The other issue which was reserved in the earlier judgment was the question of costs.
At [109] I indicated my preliminary view that as ‘Seven Network failed in its application to have the decision of the ACCC set aside, and failed to persuade me of any legal error in that decision’ it should pay the costs of the ACCC, which appeared in the proceedings to assist the Court without entering the area of controversy between the parties. Nobody has suggested a different course so far as the costs of the ACCC are concerned, and I will make the order that was there foreshadowed.
The other preliminary indication that I gave was that Foxtel should pay the costs of Seven Network, exclusive of the costs of the ACCC. Foxtel opposed such an order, seeking instead that, as between itself and Seven Network, each party pay their own costs. Foxtel pointed out that important aspects of the proceedings before the Court involved legally different elements. One aspect of Seven Network’s case (on which it failed and which constitutes the reason why it must pay the costs of the ACCC) was that it sought to set aside the decision of the ACCC in its entirety. The challenge to the decision of the ACCC involved arguments that the ACCC approached its decision-making task in a way which was not legally open to it. All of those arguments failed.
On the other hand, Seven Network argued that it should have its costs from Foxtel because its commercial objectives were ultimately vindicated. That may well be the case but my concern is only to make an order for costs which adequately reflects the disposition of the legal issues which were argued before the Court. The issue upon which Seven Network ultimately succeeded only arose for consideration because it failed in the primary challenge which it had brought to the decision of the ACCC. A substantial amount of time and attention was devoted to the issue upon which Seven Network failed, as will be apparent from the earlier judgment.
There was another issue argued, which I dealt with in the earlier judgment at [104] to [106]. That issue was raised by a notice of motion filed by Foxtel which sought that the proceedings be dismissed on discretionary grounds. Relatively little time was spent on that issue in the proceedings.
I am satisfied that I should take into account the fact that Seven Network had only partial success in the matters which it argued before the Court. I agree with submissions put by Foxtel that it would not be practical for any form of apportionment to be attempted with respect to those issues. Broadly speaking, each of Seven Network and Foxtel had success in areas of legal importance which were debated in the proceedings. Contrary to my preliminary indications, therefore, I do not propose to make any order for costs as between Foxtel and Seven Network.
I make orders in the form of the short minutes of order handed up by counsel for Foxtel.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan. Associate:
Dated: 28 March 2008
Counsel for the Applicant: Mr J Kirk Solicitor for the Applicant: Freehills Counsel for the First Respondent: Ms N Sharp Solicitor for the First Respondent: DLA Phillips Fox Counsel for the Second and Third Respondents Mr A J Meagher SC
Solicitor for Second and Third Respondents: Allens Arthur Robinson
Date of Hearing: 28 March 2008 Date of Judgment: 28 March 2008
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