Seven Network Limited v News Limited [2005] FCAFC 125
LEGAL PROFESSIONAL PRIVILEGE – where edited version of file note produced in response to subpoena – where objection to producing unedited version taken on grounds of privilege – whether effect of O 33 r 11(5) Federal Court Rules is to extend operation of Evidence Act 1995 (Cth) to pre‑trial production – whether O 33 r 11 Federal Court Rules prevents Court from compelling pre‑trial production of documents that cannot be adduced in evidence at trial
Law Reform Commission, Report No38: Evidence, Australian Government Publishing Service, Canberra, 1987
SEVEN NETWORK LIMITED & ANOR v NEWS LIMITED & OTHERS
NSD 1095 of 2005
BRANSON, ALLSOP AND EDMONDS JJ 7 JULY 2005 SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1095 of 2005
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
SEVEN NETWORK LIMITED AND ANOTHER APPLICANTS/APPELLANTS
AND:
NEWS LIMITED AND OTHERS RESPONDENTS
JUDGES:
BRANSON, ALLSOP AND EDMONDS JJ
DATE OF ORDER:
7 JULY 2005
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The applicants be granted leave to appeal from the interlocutory judgment dated 30 June 2005.
2.The appeal be dismissed.
3.The applicants/appellants pay the respondents’ costs of the motion for leave and the appeal.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1095 of 2005
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
SEVEN NETWORK LIMITED AND ANOTHER APPLICANTS/APPELLANTS
AND:
NEWS LIMITED AND OTHERS RESPONDENTS
JUDGES:
BRANSON, ALLSOP AND EDMONDS JJ
DATE:
7 JULY 2005
PLACE:
SYDNEY
REASONS FOR JUDGMENT
BRANSON J
INTRODUCTION
The applicants have sought leave to appeal from an interlocutory judgment of the Court constituted by a single Judge. The issue in dispute between the parties is the claim of the respondents to be entitled to inspect the whole of a document of the Australian Competition and Consumer Commission (‘the ACCC’). The document in question is a file note brought into existence by an officer of the ACCC as a record of a meeting between, in effect, the applicants and their legal representatives and officers of the ACCC.
The respondents have been provided with a copy of the file note but with a small section of its contents masked. The document in this form was produced in response to…
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.
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AGLC
Seven Network Ltd v News Ltd [2005] FCAFC 125
Case
[2005] FCAFC 125
Decision Date
CaseChat Overview and Summary
In Seven Network Ltd v News Ltd, the appellants, Seven Network Ltd and others, sought to appeal against an interlocutory judgment that allowed the respondents to inspect and deal with certain documents produced in response to a subpoena. The dispute centred on the inspection of a file note from a meeting between representatives of the appellants and officers of the Australian Competition and Consumer Commission (ACCC). The legal issues that the court needed to address were whether the inspection and dealing with the documents were permissible under the relevant rules of court and whether the file note was protected by legal professional privilege.
The court held that Order 33 rule 11 of the Rules of Court did not establish an alternative regime to that found in Order 27 for the inspection of documents produced in response to a subpoena. The court further concluded that the appellants' reliance on Order 33 rule 11 was ill-founded. The file note in question did not attract legal professional privilege at common law as it was a record of things said at a meeting between the appellants and ACCC officers. The court did not need to determine whether the appellants waived legal professional privilege in respect of an earlier confidential communication to them of legal advice.
Ultimately, the court granted the applicants leave to appeal but dismissed the appeal with costs to be paid by the appellants. The court agreed with the reasons for judgment of Branson J and the orders proposed by her Honour. The substantive litigation between the parties, concerning alleged contraventions of the Trade Practices Act 1974 (Cth), is scheduled to commence in the Federal Court on 18 July 2005.
Orders
Orders of the court
1. The applicants be granted leave to appeal from the interlocutory judgment dated 30 June 2005.
2. The appeal be dismissed.
3. The applicants/appellants pay the respondents’ costs of the motion for leave and the appeal.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
BRANSON, ALLSOP AND EDMONDS JJ
Order 33 r 11 is not, in my view, intended to establish a regime alternative to that to be found in O 27 of the Rules for the inspection of, and dealing with, documents produced to the Court in response to a subpoena which does not require production of documents to the Court in the course of a trial.CONCLUSION For the above reasons I conclude that the appellants’ reliance on O 33 r 11 is ill‑founded. The appellants did not contend that the file note which the respondents seek to inspect attracts legal professional privilege at common law. It is plain that it does not. It purports to be a record of things said at a meeting between representatives of the appellants and officers of the ACCC. Whether, as a result of things said at that meeting, the appellants waived legal professional privilege in respect of an earlier confidential communication to them of legal advice is not a question for determination on this appeal. The appropriate orders, in my view, are that the applicants be granted leave to appeal and the appeal dismissed with costs. I have had the advantage of reading in draft the reasons for judgment of Branson J. I agree with them and with the orders that her Honour proposes. The applicants sue the respondents and others in respect of conduct that is said to amount to contraventions of the Trade Practices Act 1974 (Cth). The substantive complaints of the applicants concerned the activity of the respondents in respect of bidding for rights to broadcast on television different codes of football, AFL and Rugby League. A pay television channel owned or run by the applicants, or one or more of them (“C 7”) had, at that time of the impugned conduct of the respondents, the AFL rights. It lost those rights to rivals after the negotiations the subject of complaint. The applicants, by detailed written and oral submissions, sought to persuade the Australian Competition and Consumer Commission (the “ACCC”) to take legal action against, or at least commence an investigation into the bidding of, the respondents, or some of them. The ACCC declined to take that course. Thereafter, the applicants brought proceedings themselves. Those proceedings are due to commence in this Court on Monday, 18 July 2005 and are expected to take up considerable hearing time. As part of what might be called the lobbying of the ACCC, a meeting was held on 12 December 2000. In attendance were three senior executives of two of the applicant companies, two partners of the solicitors then (and now) acting for the applicants and two officers of the ACCC. There can be no doubt that at the meeting the applicants, in particular through Mr Gray and Mr Gammell, one of the solicitors and one of the applicants’ officers, respectively, sought to convince the ACCC of the anti-competitive nature of what the notes of the meeting described as “the joint bid for AFL broadcasting rights by News Ltd, the Nine Network, Telstra and the Ten Network”. The first point made by Mr Gray at the meeting was to convey to the ACCC officers a summary of relevant legal advice of counsel said to have been received by one of the applicants in respect of the bidding process for the AFL broadcast rights.