Seven Network Ltd v News Ltd - [2007] FCA 1062

Seven Network Limited v News Limited
[2007] FCA 1062
SACKVILLE J
SUMMARY
In accordance with the practice of the Federal Court in some cases of public interest, the following Summary has been prepared to accompany the reasons for judgment delivered today. The Summary is intended to assist understanding of the decision of the Court. It is not a complete statement of the conclusions reached by the Court or the reasons for those conclusions. The only authoritative statement of the Court’s reasons is that contained in the published reasons for judgment. The published reasons for judgment and this Summary will be available on the Internet at align="center">Seven Network Limited v News Limited
[2007] FCA 1062
SACKVILLE J
SUMMARY
1. THE DISPUTE

The heart of the dispute in this case is the complaint by ‘Seven’ (as I call the Applicants) that in May 2002 it was forced to shut down the business of C7 Pty Ltd (‘C7’), a producer and distributor of sports channels for Australian pay television platforms. Seven says that the closure of C7’s business was forced on it because some of the Respondents, notably the News, PBL and Telstra parties and their associated corporations, engaged in anti-competitive conduct in contravention of ss 45 and 46 of the Trade Practices Act 1974 (Cth) (‘Trade Practices Act’), during the period from 1999 to 2001.
2. MEGA-LITIGATION
The case is an example of what is best described as ‘mega-litigation’. By that expression, I mean civil litigation, usually involving multiple and separately represented parties, that consumes many months of court time and generates vast quantities of documentation in paper or electronic form. An invariable characteristic of mega-litigation is that it imposes a very large burden, not only on the parties, but on the court system and, through that system, the community.
Before briefly explaining the issues in the case and the outcome, I wish to record some of the features of this particular example of mega-litigation.
The trial lasted for 120 hearing days and took place in an electronic courtroom. Electronic trials have many advantages, but reducing the amount of documentation produced or relied on by the parties is not one of them. The outcome of the processes of discovery and production of documents in this case was an electronic database containing 85,653 documents, comprising 589,392 pages. Ultimately, 12,849 ‘documents’, comprising 115,586 pages, were admitted into evidence. The Exhibit List would have been very much longer had I not rejected the tender of substantial categories of documents that the parties, particularly Seven, wished to have in evidence.
Quite apart from the evidence, the volume of written submissions filed by the parties was truly astonishing. Seven produced 1,556 pages of written Closing Submissions in Chief and 812 pages of Reply Submissions (not counting confidential portions of certain chapters and one electronic attachment containing spreadsheets which apparently runs for 8,900 or so pages). The Respondents managed to generate some 2,594 pages of written Closing Submissions between them. The parties’ Closing Submissions were supplemented by yet further outlines, notes and summaries.
In addition, the pleadings amounted to 1,028 pages. The statements of lay witnesses that were admitted into evidence run to 1,613 pages. The expert reports in evidence totalled 2,041 pages of text, plus many hundred pages of appendices, calculations and the like. The transcript of the trial is 9,530 pages in length.
I have not been idle these past nine months.
3. COSTS
It is not surprising that a case that generates this volume of material also generates very large costs. What is surprising is the sheer amount of money that has been devoted to a single case. My estimate is that the parties have spent in the order of $200 million on legal costs in connection with these proceedings.
When the case was opened, Mr Sheahan SC, on behalf of Seven, suggested that it would be claiming more than $1.1 billion in damages. By the time final submissions were made, Seven’s damages claim, at best, had been reduced to an amount between $194.8 and $212.3 million. This amount was to be ‘grossed up’ by a factor of 1.429 to account for income tax. Pre-judgment interest was also to be added. Bearing in mind that (as the parties agree) tax has to be paid on any damages award, the maximum amount at stake in this litigation has not been very much more than the total legal costs incurred to date.
It is difficult to understand how the costs incurred by the parties can be said to be proportionate to what is truly at stake, measured in financial terms. In my view, the expenditure of $200 million (and counting) on a single piece of litigation is not only extraordinarily wasteful, but borders on the scandalous.
4. THE JUDGMENT
Mega-litigation, if it proceeds to finality, often generates very long judgments. Regrettably, this is a prime example. The judgment is divided into 21 substantive Chapters and a short final Chapter. It is about 1120 pages in length.
The first 11 Chapters explain the litigation and set out the facts in great detail. The final ten substantive Chapters contain my reasoning on the many causes of action on which Seven relies. Because of the complexity of the issues and the length of the judgment, this summary can be no more than a bare outline of the parties’ contentions and my conclusions.
The abbreviations used in this Summary correspond to those used in the judgment.
5. SEVEN’S CASE
Seven commenced the proceedings on 19 November 2002. It originally sought damages, declarations, injunctions and other relief against a total of 19 respondents. Since then proceedings have been discontinued against two of the respondents (the Australian Football League Ltd (‘AFL’) and Network Ten Pty Ltd) and three other respondents have been added.
5.1 Alleged Anti-Competitive Conduct
The two major instances of anti-competitive conduct which Seven says caused or contributed to the demise of C7 are these:
·First, from mid-1999 until December 2000 when the AFL awarded the AFL pay television rights for 2002 to 2006 to News, the Foxtel Partnership (the partners in which are effectively News, PBL and Telstra) refused to negotiate with C7 for the carriage of its sporting channels on the Foxtel retail pay television platform. Foxtel refused, so Seven argues, even though the C7 channels contained attractive programming (such as AFL matches which were not otherwise available to Foxtel subscribers) and even though Telstra, one of the partners, considered that C7’s proposals, if accepted, would be highly beneficial to Foxtel’s business. Seven says that the conduct of Foxtel, which was largely dictated by News with the support of PBL, was designed to harm C7 and favour the interests of Fox Sports, C7’s competitor in the market for the supply of sports channels to retail pay television platforms. Indeed, Seven says that News and PBL had the explicit purpose of ‘killing C7’ and that Telstra, ultimately at least, acquiesced in that purpose.
·Secondly, at a teleconference held on 13 December 2000, a ‘consortium’, including representatives of News, Foxtel, PBL and Telstra, made an arrangement, referred to in the case as the ‘Master Agreement’. The Master Agreement was intended to facilitate Foxtel’s acquisition of the AFL pay television rights for the 2002 to 2006 seasons. The Master Agreement provided that News would bid for and acquire the AFL broadcasting rights and then sub-license the AFL pay television rights to Foxtel and the AFL free-to-air rights to Nine and Ten, on previously agreed terms. These terms required Foxtel to pay $30 million per annum, plus adjustments, for the AFL pay television rights, in circumstances where, according to Seven, the Foxtel partners were aware that Foxtel was overpaying for the rights and that the acquisition would result in a loss to it over the five year term of the sub-licensing agreement. The Master Agreement also contemplated that Fox Sports (jointly owned by News and PBL) would acquire the pay television rights to National Rugby League (‘NRL’) matches for the 2001 to 2006 seasons from the NRL Partnership.
Seven says that, pursuant to the Master Agreement, News and Fox Sports successfully bid for the AFL broadcasting rights and the NRL pay television rights, respectively, and that all the parties to the Master Agreement subsequently entered into the various licensing and other transactions contemplated by the Master Agreement.
Seven argues that the purpose and effect of the Master Agreement was to deprive C7 of the rights to the two so-called ‘marquee sports’ which were essential to C7’s continued existence as a sports channel. In consequence of C7’s loss of the AFL pay television rights, the two major pay television platforms with which C7 had contracts (Optus and Austar) terminated or failed to renew the contracts. Bereft of both the AFL pay television rights and the NRL pay television rights, C7 could not continue as a viable sports channel and was effectively doomed.
5.2 Market Definition
In a case like this, market definition plays an important part, since the Court cannot decide whether there has been, or is likely to be, a substantial lessening of competition unless and until it establishes the nature and scope of the relevant markets. Seven’s case is that the Master Agreement (and certain other agreements) contained provisions that had the purpose or effect of substantially lessening competition in each of four markets:
·the wholesale sports channel market (being a market for the wholesale acquisition and supply of channels containing sports programming, for supply to pay television platforms);
·the AFL pay rights market (being a market for the acquisition and supply of the rights to broadcast AFL matches on pay television);
·the NRL pay rights market (being a market for the acquisition and supply of the rights to broadcast NRL matches on pay television); and
·the retail pay television market (being a market for the supply of pay television services to retail subscribers).
Of these markets, Seven relies most heavily on the wholesale sports channel market to support its case based on the Master Agreement.
5.3 Taking Advantage of Market Power
Seven claims that, during the period from November 1998 to December 2000, Foxtel had a substantial degree of power in the retail pay television market. According to Seven, Foxtel took advantage of that power in a number of ways, including:
·refusing to accept attractive offers made by C7 for the supply of its channels to the Foxtel Service; and
·agreeing to pay $30 million per annum (plus adjustments) for the AFL pay television rights for the 2002-2006 seasons, an amount which Foxtel knew was more than the rights were truly worth and which was likely to be loss-producing over the term of the agreement.
5.4 Foxtel-Optus CSA
Seven also mounts a case based on anti-competitive conduct which is said to have taken place after the award of the AFL broadcasting rights and the NRL pay television rights in December 2000. This case rests primarily on the purpose and effect of the so-called Foxtel-Optus CSA which was entered into on 5 March 2002 between Foxtel and Optus. The effect of this agreement was that Foxtel and Optus agreed to share content on their retail pay television platforms. This content sharing agreement is said by Seven to have had the effect of substantially lessening competition in the retail pay television market, since Foxtel and Optus no longer competed with each other on content or price.
5.5 Other Causes of Action
Seven relies on various causes of action, quite independent of its claims based on anti-competitive conduct, arising out of the process by which the NRL Partnership awarded the NRL pay television rights to Fox Sports in December 2000. These causes of action include disclosure of confidential information in breach of a duty of confidence and misleading or deceptive conduct.
In addition, Seven makes a number of claims against Optus arising out of what has been described as the ‘Exclusivity Clause’ which was included in an agreement known as the C7-Optus CSA, by which C7 supplied sports content to Optus. Seven says that Optus breached the Exclusivity Clause by negotiating with Fox Sports and that Optus also engaged in misleading or deceptive conduct. Optus has filed a Cross-Claim in which it says that Seven acted in a misleading and deceptive fashion when negotiating the Exclusivity Clause and is therefore precluded from relying upon it in these proceedings.
There are other causes of action relied upon by Seven, but it is not necessary to mention them in this Summary.
6. GENERAL OBSERVATIONS
Before summarising the conclusions I have reached on Seven’s case and Optus’ Cross-Claim, it is appropriate to make some general observations. These comments are designed to assist in placing this very lengthy and complex case in context.
First, it was part of Seven’s strategy for a long period of time to claim that a bid (directly or indirectly) by Foxtel for the AFL pay television rights would constitute unlawful anti-competitive conduct. Moreover, Seven was seriously contemplating litigation against the parties to the Master Agreement (the ‘Consortium Respondents’), in respect of the loss or possible loss of the AFL pay television rights, well before the AFL actually awarded the 2002 to 2006 rights in December 2000.
If a party embarks on a strategy of the kind adopted by Seven in this case, yet continues to deal with those whom it accuses of anti-competitive conduct, its own conduct may well be influenced and its perceptions coloured by the very strategy it is following. The risk of that happening is increased if the strategy includes instituting litigation, because there must be a strong temptation to act in a manner that is calculated to improve the chances of success in the forensic battle to come.
In my view, Seven’s case has been affected by these factors. As my findings indicate, certain of Seven’s witnesses frequently reconstructed events in a manner that not merely reflected Seven’s interests, but could not withstand critical examination. In particular, the accounts of a number of those witnesses could not be reconciled, in important respects, with the contemporaneous documentation, including the minutes of Seven’s own board meetings.
Secondly, the gist of Seven’s complaint in this case concerns anti-competitive conduct. It is not essential that a party which invokes the Trade Practices Act to attack the allegedly anti-competitive practices of its rivals should itself be a paragon of competitive virtue. Yet it is striking that Seven’s strategy in 1999 and 2000 for obtaining the AFL broadcasting rights for 2002 to 2006 hinged on avoiding a competitive bidding process for the rights.
Seven used a variety of techniques, including seeking the intervention of the competition regulator, to discourage Foxtel from bidding (whether through News or otherwise) for the AFL pay television rights. Seven’s intention was to position itself as the only potential buyer of the broadcasting rights.
Mr Sumption QC, in his closing submissions on behalf of Seven, accepted that the logic of Seven’s position in the case was that, once News and Foxtel realised that Fox Sports (of which News is a part owner) had a real chance of acquiring the NRL pay television rights, neither News nor Foxtel could lawfully bid for the AFL pay television rights. Mr Sumption did not concede that, from a policy perspective, there was anything odd about this result.
Even so, it seems to me curious that competition law should have the effect, in the particular circumstances of this case, of conferring upon one potential buyer the opportunity to acquire valuable rights without any opposition from an otherwise willing competitor wishing to bid for the same rights. That was the very basis on which the ACCC declined to intervene in the competitive bidding process for the AFL broadcasting rights.
Thirdly, Seven has consistently maintained that securing the AFL pay television rights was essential to C7’s commercial survival after 2001. Yet the evidence clearly establishes that Seven failed to make its best offer for the rights when they became available. In essence, Seven was the author of its own misfortune.
This finding is not determinative of Seven’s case on liability. But the finding demonstrates that Seven was far from a helpless victim in the face of the allegedly anti-competitive conduct of which it complains.
Fourthly, an important element in Seven’s case is that the Consortium Respondents endorsed a bid for the AFL pay television rights by Foxtel (through News), believing that the price offered was substantially more than the rights were worth and that the acquisition would prove to be loss-producing for Foxtel. It is yet another extraordinary feature of this case that Mr Stokes conceded in cross-examination that he regarded the price paid by the Foxtel Partnership for the AFL television rights as a ‘good’ deal for a purchaser. This concession makes it very difficult for Seven to establish the factual foundation for its ‘overbidding’ contention.
Fifthly, there is more than a hint of hypocrisy in certain of Seven’s contentions. I particularly have in mind Seven’s claim that Mr Philip divulged confidential information in relation to Seven’s bid for the NRL pay television rights and that certain Respondents received the information knowing that it had been obtained in circumstances which breach confidentiality.
I find that Seven ‘leaked’ to the media details of its bid, thus destroying any confidentiality in the information. This finding makes it surprising, to say the least, that the claim was brought in the first place. Another example of what I have in mind is Seven’s complaint that C7 suffered losses by being denied retail access via the Telstra Cable when (as I find) it never had any serious intention that C7 should be a retailer of pay television services.
By pointing to these matters I do not intend to imply that the behaviour of all the Respondents was exemplary. The Chief General Counsel of News, Mr Philip, for example, on his own account dishonestly attempted to mislead Telstra into contributing additional support to Fox Sports’ bid for the NRL pay television rights. The evidence also shows that News was content to withhold important information from Telstra, in effect its partner in the Foxtel Partnership, and did so over a considerable period of time.
At the conclusion of the hearing, I asked whether Mr Philip was still employed by News and was told that he was. If, in the meantime, News has taken no action against Mr Philip in respect of his admitted dishonesty, it would reflect very seriously indeed on News’ standards of commercial morality.
In the end, however, it is Seven that must prove its pleaded case against the Respondents.
7. SPECIFIC CONCLUSIONS
7.1 Markets
As I have noted, Seven’s primary case as to the substantial lessening of competition relates to the wholesale sports channel market. In Chapter 12 of the judgment, I find that Seven has failed to establish the existence of that market. I also find that Seven has not established the existence of either the AFL pay rights market or the NRL pay rights market. However, I conclude that Seven has made out that there was, at the relevant time, a retail pay television market in the terms pleaded by it.
It follows from these findings that Seven can only succeed in its anti-competitive conduct case under s 45(2) of the Trade Practices Act, if the provisions on which it relies had the effect or likely effect of substantially lessening competition in the retail pay television market.
7.2 Effects Case

In Chapter 13, I find that the Master Agreement Provision and the other provisions relied on by Seven did not have the effect or likely effect at the relevant times of substantially lessening competition in that market. By December 2000 (when the Master Agreement was entered into) and January 2001 (when the parties gave effect to the Master Agreement Provision), Optus’ pay television operations had been experiencing very substantial losses over a period of several years. The strong likelihood in December 2000 and January 2001 was that, if the Master Agreement had not been entered into or implemented, Optus would have negotiated a content sharing agreement with Foxtel along the lines of the so-called Foxtel-Optus CSA (which was in fact executed on 5 March 2002). Thus, in the absence of the Master Agreement Provision, Optus would not have been a significant constraint on Foxtel in the retail pay television market.
7.3 Purpose Case
In Chapter 14, I conclude that Seven’s case based on the anti-competitive purpose of the various provisions, including the Master Agreement Provision, cannot succeed. The reason is that even if each of the Consortium Respondents had the objective attributed to it by Seven – that of killing C7 – achieving that objective could not have substantially lessened competition in the retail television market. By reason of Optus’ parlous state, any lessening of competition in that market would have occurred quite independently of the fate of C7.
Although strictly not necessary to do so, I consider in Chapter 14 certain questions of construction relating to s 45(2)(a)(ii) and (b)(ii) of the Trade Practices Act. I interpret these provisions to require all parties responsible for the impugned provision in the contract, arrangement or understanding to have the subjective purpose of lessening competition, if a contravention of s 45(2) is to be established. I find that Telstra was responsible, together with the other Consortium Respondents, for including the Master Agreement Provision in the Master Agreement (that is, the provision requiring or contemplating that bids would be made both for the AFL and NRL pay television rights). But I also find that Telstra did not have the purpose proscribed by s 45(2), even if it is assumed that the other Consortium Respondents did have such a purpose. Thus Seven’s purpose case under s 45(2) in relation to the Master Agreement Provision must fail.
Seven’s case in relation to the other provisions on which it relies (with one exception) similarly fails, because Seven cannot show that all parties responsible for including the provision in the contract, arrangement or understanding shared the purpose proscribed by s 45(2) of the Trade Practices Act. The exception is the so-called News-Foxtel Licence, whereby News licensed the AFL pay television rights to Foxtel, which is not affected by this particular analysis, although I reject Seven’s claim based on the News-Foxtel Licence for other reasons.
In view of these conclusions, it is not necessary, in order to deal with Seven’s purpose case under s 45(2) of the Trade Practices Act, to make factual findings about the purpose of News, Foxtel and PBL. Nonetheless, I deal with this issue in Chapter 15.
I find in Chapter 15 that Seven has not made out that any of News, Foxtel (that is, Sky Cable and Telstra Media in partnership) or PBL had the objective of destroying C7 and thereby substantially lessening competition. Seven has not demonstrated that any of those parties crossed the boundary that distinguishes legitimate, albeit aggressive and even ruthless, competitive conduct from anti-competitive behaviour of the kind prohibited by ss 45(2) and 46(1) of the Trade Practices Act.
7.4 Taking Advantage of Market Power
In Chapter 16, I conclude that Foxtel did not take advantage of its power in the retail pay television market in any of the ways alleged by Seven. In particular, I find that
·Seven has not made out its pleaded case in relation to Foxtel’s refusal to accept so-called ‘offers’ by Seven to supply its channels; and
·Foxtel, by refusing to negotiate with C7 pending the award of the AFL broadcasting rights, did not take advantage of its market power.
7.5 Access to the Telstra Cable
In Chapter 17, I reject Seven’s case based on the conduct of Foxtel and Telstra Multimedia in denying C7 access to the Telstra Cable for the purpose of establishing C7’s own retail pay television platform. I find that the requests made by C7 for retail access via the Telstra Cable were intended to place pressure on Foxtel in relation to other issues. Seven never intended that C7 should take advantage of access to the Telstra Cable for this purpose, should such access have become available. I conclude that, although Foxtel and Telstra Multimedia gave effect to a provision in the so-called Broadband Cooperation Agreement that conferred on Foxtel exclusive access to the Telstra Cable, that provision did not have the effect or likely effect of substantially lessening the competition in the retail pay television market.
7.6 Foxtel-Optus CSA
In Chapter 18, I find that the provisions of the Foxtel-Optus CSA (by which Foxtel and Optus agreed to share content) did not have the effect or likely effect of substantially lessening competition in the retail pay television market. I reach this conclusion because, assuming that Foxtel and Optus had never entered the Foxtel-Optus CSA, Optus would have adopted what was described in evidence as the ‘Manage for Cash’ strategy. This strategy would have led to the closure of Optus’ pay television operations within three to four years. In the meantime, Optus would not have been a significant competitive constraint on Foxtel.
7.7 Breach of Confidentiality
In Chapter 19, I conclude that Seven’s cause of action founded on breach of confidentiality fails. I find that, although Mr Philip (contrary to his evidence) deliberately disclosed certain information relating to Seven’s bid for the NRL pay television rights, the information lacked the quality of confidentiality because Seven had already publicly disclosed it. I also reject Seven’s contentions on the other causes of action upon which it relies in relation to the award of the NRL pay television rights.
7.8 Claims Between Seven and Optus
In Chapter 20, I reject Seven’s claims that Optus engaged in misleading or deceptive conduct in contravention of s 52 of the Trade Practices Act. However, I find that Seven itself engaged in deceptive and misleading conduct in the lead-up to Optus executing an agreement which resulted in the Exclusivity Clause being inserted into the C7-Optus CSA. Seven therefore cannot rely on any breach by Optus of the Exclusivity Clause. I conclude that, apart from orders setting aside the Exclusivity Clause, Optus is not entitled to any further relief against Seven.
7.9 Other Claims
In Chapter 21, I conclude that Seven has not made out any of its additional causes of action based on alleged contraventions of the anti-siphoning regime in the Broadcasting Services Act 1992 (Cth), and of ss 45(2) and 45D of the Trade Practices Act.
8. PROPOSED ORDERS
The result is that I propose in due course to make orders dismissing Seven’s claims for relief. Optus will be directed to bring in Short Minutes of any order it says should be made on its Cross-Claim.
I intend to defer making final orders until the parties have the opportunity to make submissions on costs. While I intend to dismiss Seven’s application, I nonetheless propose to give the parties the opportunity to make further brief written submissions on what issues relating to relief, if any, they say that I should address before entering final orders. The only reason for contemplating this course as a possibility is to facilitate the appellate process.
This does not necessarily mean that I will accede to any request the parties make, even on the unlikely assumption that they are able to reach agreement as to the issues that I should consider. It must be remembered that this case has already consumed very large public resources.
9. A CAUTIONARY TALE
It is appropriate to conclude this Summary with a cautionary tale that the parties in the present case would do well to heed closely. So far as I am aware, the longest civil trial in recent Australian history took place in the Supreme Court of South Australia. The Duke litigation (Duke Group Ltd (in liq) v Pilmer (1998) 27 ACSR 1) ran for 471 days, from 15 June 1994 to 29 September 1997. Remarkably enough, the trial judge delivered judgment, nearly 500 printed pages in length, within a mere four months of the conclusion of the hearing.
That, however, was merely the end of the beginning. Allowing for multiple appeals, including two journeys to the High Court of Australia, the case finally concluded on 19 November 2004, when the High Court refused a second application for special leave to appeal. Ten and a half years had elapsed since the commencement of the trial and over twelve years since the commencement of the proceedings. Nearly seven years had passed since the trial judge had given judgment.
Even now, it is not too late for the parties to bring these protracted and excessively expensive proceedings to a conclusion by mutual agreement and thus avoid the costs and uncertainties of the appellate process. In the light of my findings of fact and conclusions of law, the parties should be able to assess realistically their prospects on appeal. They should also take into account that the transactions that gave rise to this litigation are long past and have been overtaken, not only by later events, but a changed commercial environment in the industries in which they operate.
The alternative to a negotiated resolution may be a reprise of the Duke litigation. I do not recommend this course.
SYDNEY
27 JULY 2007

FEDERAL COURT OF AUSTRALIA
Seven Network Limited v News Limited
[2007] FCA 1062
TRADE PRACTICES – retail pay television provider (‘Foxtel’) refuses to take premium sports channels from a channel supplier (‘C7’) incorporating Australian Football League (‘AFL’) content – a consortium, including Foxtel, enters into a ‘Master Agreement’ providing for bids to be made for the AFL pay television rights and the National Rugby League (‘NRL’) pay television rights – consortium’s bids succeed – C7, deprived of ‘marquee’ sports content, goes out of business.
TRADE PRACTICES – whether Foxtel, by refusing to accept offers by C7 to supply sports channels took advantage of its substantial power in the retail pay television market, in contravention of s 46(1) of the Trade Practices Act 1974 (Cth) (‘TP Act’) – whether Master Agreement contained a provision (‘Master Agreement Provision’) having the purpose, effect or likely effect of substantially lessening competition, in contravention of s 45(2)(a)(ii) of the TP Act – whether giving effect to the Master Agreement Provision contravened s 45(2)(b)(ii) of the TP Act.
TRADE PRACTICES - markets – SSNIP test – limits of expert evidence – relevance of perceptions of industry participants – whether applicants have made out the existence of the pleaded wholesale sports channel, AFL pay rights, NRL pay rights or retail pay television markets.
TRADE PRACTICES – whether Master Agreement Provision had the effect of substantially lessening competition in the retail pay television market – whether at the time the parties give effect to the Master Agreement Provision, it had or was likely to have the effect of substantially lessening competition in the retail pay television market – significance of the weakness of Foxtel’s only potentially significant competitor in the retail pay television market.
TRADE PRACTICES – purpose – whether, if parties to the Master Agreement had the objective of ‘killing’ C7, that was a purpose of substantially lessening competition – whether all parties responsible for including an impugned provision in the contract, arrangement or understanding must fear the purpose of substantially lessening competition – whether all parties responsible for including the Master Agreement Provision shared the proscribed purpose.
TRADE PRACTICES – purpose – whether the parties to the Master Agreement had the purpose of substantially lessening competition – whether conduct crossed the boundary between legitimate, albeit ruthless, competitive conduct and anti-competitive conduct proscribed by s 45(2) of the TP Act.
TRADE PRACTICES – taking advantage of substantial market power – whether Foxtel took advantage of its substantial market power in the retail pay television market by refusing to accept offers from C7 to supply sports channels and by refusing to negotiate with C7 pending the award of the AFL pay television rights and the NRL pay television rights – whether Foxtel ‘overbid’ for the AFL pay television rights.
TRADE PRACTICES – whether denial of retail access to C7 via the Telstra Cable, pursuant to exclusivity provisions of a ‘Broadband Cooperation Agreement’ between Foxtel and Telstra, substantially lessened competition in the retail pay television market.
TRADE PRACTICES – whether the provisions of a content sharing agreement between Foxtel and Optus (another retail pay television provider) had the effect or likely effect of substantially lessening competition in the retail pay television market.
TRADE PRACTICES – misleading or deceptive conduct – whether pleaded representations established by the evidence– representations with respect to a future matter – falsity – reliance.
EQUITY– confidentiality – whether information relating to C7’s bid for the NRL pay television rights was confidential – whether publication destroys confidentiality.
Acts Interpretation Act 1901 (Cth) s 46A
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Australian Communications and Media Authority (Consequential and Transitional Provisions) Act 2005 (Cth)
Broadcasting Services Act 1992 (Cth) ss 6, 12, 14, 16, 17, 23, 25, 26, 28, 28A, 29, 42, 53, 93, 96, 97, 99, 115, 117, 118, 122, 123, 124, 125, 131, 132, 139, 158, Sch 2 Pt 3 cl 7, Sch 2 Pt 6 cl 10, Sch 2 Pt 7 cl 11, Sch 4
Broadcasting Services Amendment (Anti-Siphoning) Act 2005 (Cth) Sch 1, cl 1
Broadcasting Services (Subscription Television Broadcasting) Amendment Act 1992 (Cth)
Broadcasting Legislation Amendment Act (No 2) 2001 (Cth) Sch 1, cl 5
Federal Court of Australia Act 1976 (Cth) s 21
Judiciary Act 1903 (Cth) s 39B
Radiocommunications Act 1992 (Cth) s 31
Telecommunications Act 1997 (Cth) s 7
Telecommunications (Transitional Provision and Consequential Amendments) Act 1997 (Cth) s 39
Television Broadcasting Services (Digital Conversion) Act 1998 (Cth)
Trade Practices Act 1974 (Cth) ss 4, 4D, 4E, 4F, 4G, 4L, 4M, 6, 45, 45D, 45DA, 46, 47, 50, 51A, 52, 76, 82, 87, 87A, 87B, 88, 151AK, 152AA, 152AB, 152AC, 152AL, 152AR, 152CM
Workplace Relations and Other Legislation Amendment Act 1996 (Cth) Sch 17
Statute of Uses 1535 (Imp)
Federal Court Rules O 15A
Adamson v New South Wales Rugby League Ltd (1991) 31 FCR 242
AG Australia Holdings Ltd v Burton (2002) 58 NSWLR 464
Akron Securities Ltd v Iliffe (1997) 41 NSWLR 353
Amalgamated Television Services Pty Ltd v Foxtel Digital Cable Television Pty Ltd (1996) 136 ALR 319
Amoco Australia Pty Ltd v Rocca Bros Motor Engineering Co Ltd (1973) 133 CLR 288
Apand Pty Ltd v The Kettle Chip Company Pty Ltd (1994) 52 FCR 474
ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (No 1) (1990) 27 FCR 460
Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (2000) 169 ALR 344
Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (2003) 129 FCR 339
Australian Competition and Consumer Commission v Boral Ltd (2000) 106 FCR 328
Australian Competition and Consumer Commission v CC (NSW) Pty Ltd (1999) 92 FCR 375
Australian Competition and Consumer Commission v Liquorland (Australia) Pty Ltd [2006] ATPR 42-123
Australian Competition and Consumer Commission v Visy Paper Pty Ltd (2000) 186 ALR 731
Australian Competition and Consumer Commission v Visy Paper Pty Ltd (2001) 112 FCR 37
Australian Gas Light Co v Australian Competition and Consumer Commission (2003) 137 FCR 317
Australian Securities and Investments Commission v Rich (Supreme Court of New South Wales, Austin J)
Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247
Bell Group Ltd v Westpac Banking Corporation (Supreme Court of Western Australia, Owen J)
Bill Acceptance Corporation Ltd v GWA Ltd (1983) 50 ALR 242
Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2006] NSWCA 238
Boral Besser Masonry Ltd v Australian Competition and Consumer Commission (2003) 215 CLR 374
Brandi v Mingot (1976) 12 ALR 551
Bridge v Deacons [1984] AC 705
Broome v Cassell & Co Ltd [1972] AC 1027
Browne v Dunn (1893) 6 R 67
Buckley v Tutty (1971) 125 CLR 353
Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592
C7 Pty Ltd v Foxtel Management Pty Ltd [2001] FCA 1864
C7 Pty Ltd v Foxtel Management Pty Ltd [2002] FCA 1189
Carlton & United Breweries (NSW) Pty Ltd v Bond Brewing New South Wales Ltd (1987) 16 FCR 351
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44
Coco v AN Clark (Engineers) Ltd (1968) 1A IPR 587
Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39
Concrete Constructions Group Ltd v Litevale Pty Ltd (2002) 170 FLR 290
Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434
Crabtree Vickers Pty Ltd v Australian Direct Mail Advertising and Addressing Co Pty Ltd (1975) 133 CLR 72
CSR Ltd v Della Maddalena (2006) 224 ALR 1
Customs and Excise Commissioners v A [2003] 2 All ER 736
Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31
Deta Nominees Pty Ltd v Viscount Plastic Products Pty Ltd [1979] VR 167
Devenish v Jewel Food Stores Pty Ltd (1991) 172 CLR 32
Digi-Tech (Australia) Ltd v Brand (2004) 62 IPR 184
Dowling v Dalgety Australia Ltd (1992) 34 FCR 109
Duke Group Ltd (in liq) v Pilmer (1998) 27 ACSR 1
Duke Group Ltd (in liq) v Pilmer (1999) 73 SASR 64
Duke Group Ltd (in liq) v Pilmer (No 2) (2000) 78 SASR 216
Duke Group Ltd (in liq) v Pilmer (No 4) [2001] SASC 451
Duke Group Ltd (in liq) v Pilmer (No 5) (2003) 87 SASR 325
Duke Group Ltd (in liq) v Pilmer (No 6) [2004] SASC 147
Eastern Express Pty Ltd v General Newspapers Pty Ltd (1992) 35 FCR 43
Esso Petroleum Co Ltd v Harper’s Garage (Stourport) Ltd [1968] AC 269
Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17
Flack v Chairperson, National Crime Authority (1997) 80 FCR 137
Fox v Percy (2003) 214 CLR 118
Foxeden Pty Ltd v IOOF Building Society Ltd [2003] VSC 356
Foxtel Cable Television Pty Ltd v Nine Network Australia Pty Ltd (1997) 73 FCR 429
Foxtel Management Pty Ltd v Australian Competition and Consumer Commission (2000) 173 ALR 362
Foxtel Management Pty Ltd v Seven Cable Television Pty Ltd (2000) 102 FCR 464
Foxtel Management Pty Ltd v Seven Cable Television Pty Ltd (2000) 102 FCR 555
Frontier Touring Co Pty Ltd v Rodgers (2005) 223 ALR 422
Futuretronics International Pty Ltd v Gadzhis [1992] 2 VR 217
Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1
Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82
Gould v Vaggelas (1985) 157 CLR 215
Gray v Motor Accident Commission (1998) 196 CLR 1
Hecar Investments No 6 Pty Ltd v Outboard Marine Australia Pty Ltd (1982) 62 FLR 159
Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No 1) (1988) 39 FCR 546
Heydon v NRMA Ltd (2000) 51 NSWLR 1
Hospitality Group Pty Ltd v Australian Rugby Union Ltd (2001) 110 FCR 157 at 191
HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640
Hughes v Western Australian Cricket Association (Inc) (1986) 19 FCR 10
I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109
ICT Pty Ltd v Sea Containers Ltd (1995) 39 NSWLR 640
Inn Leisure Industries Pty Ltd v D F McCloy Pty Ltd (No 1) (1991) 28 FCR 151
Jango v Northern Territory (2006) 152 FCR 150
Jones v Dunkel (1959) 101 CLR 298
Lennon v News Group Newspapers Ltd and Twist [1978] FSR 573
Lindner v Murdock’s Garage (1950) 83 CLR 628
LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd [2001] NSWSC 886
LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd [2002] NSWCA 74
Luna Park (NSW) Pty Ltd v Tramways Advertising Pty Ltd (1938) 61 CLR 286
Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494
Mayne Nickless Ltd v Multigroup Distribution Services Pty Ltd (2001) 114 FCR 108
Meehan v Jones (1982) 149 CLR 571
Melway Publishing Pty Ltd v Robert Hicks Pty Ltd (2001) 205 CLR 1
Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500
Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia (2002) 122 FCR 110
Murphy v Overton Investments Pty Ltd (2004) 216 CLR 388
New South Wales v Ibbett (2006) 231 ALR 485
News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410
News Ltd v South Sydney District Rugby League Football Club Ltd (2003) 215 CLR 563
Nordenfelt v MaximNordenfelt Guns and Ammunition Co Ltd [1894] AC 535
NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90
O’Donnell v Reichard [1975] VR 916
Pacific Brands Sport & Leisure Pty Ltd v Underworks Pty Ltd (2006) 149 FCR 395
Pacific Carriers Ltd v BMP Paribas (2004) 218 CLR 451
Park v Brothers (2005) 222 ALR 421
Peters (WA) Ltd v Petersville Ltd (2001) 205 CLR 126
Peters American Delicacy Co Ltd v Patricia’s Chocolates and Candies Pty Ltd (1947) 77
CLR 574
Pilmer v Duke Group Ltd (in liq) (2001) 207 CLR 165
Quadramain Pty Ltd v Sevastopol Investments Pty Ltd (1976) 133 CLR 390
Queensland Cooperative Milling Association v Pamag Pty Ltd (1973) 133 CLR 260
Queensland Wire Industries Pty Ltd v Broken Hill Pty Co Ltd (1989) 167 CLR 177
Radio 2UE Sydney Pty Ltd v Stereo FM Pty Ltd (1982) 44 ALR 557
Re AGL Cooper Basin Natural Gas Supply Arrangements [1997] ATPR 41-593
Re Application by Concrete Carters Association (Victoria) (1977) 31 FLR 193
Re Queensland Co-operative Milling Association Ltd (1976) 25 FLR 169
Re Tooth & Co Ltd and Tooheys Ltd (1979) 39 FLR 1
Roadshow Entertainment Pty Ltd v (ACN 053 006 269) Pty Ltd (1997) 42 NSWLR 462
RPS v The Queen (2000) 199 CLR 620
Rural Press Ltd v Australian Competition and Consumer Commission (2002) 118 FCR 236
Rural Press Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 53
Schellenberg v Tunnel Holdings Pty Ltd (1999) 200 CLR 121
Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596
Seven Cable Television Pty Ltd v Telstra Corporation Ltd (2000) 171 ALR 89
Seven Network Ltd v News Ltd (No 1) [2003] FCA 388
Seven Network Ltd v News Ltd (No 14) [2006] FCA 500
Seven Network Ltd v News Ltd (No 15) [2006] FCA 515
Shop Distributive & Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552
Singapore Airlines Ltd v Taprobane Tours WA Pty Ltd (1991) 33 FCR 158
Smith Kline & French Laboratories (Australia) Ltd v Secretary, Department of Community Services and Health (1990) 95 ALR 87
Société d’Avances Commerciales v Merchants’ Marine Insurance Co (The “Palitana”) (1924) 20 Lloyd’s Rep 140
SportsVisionAustralia Pty Ltd v Tallglen Pty Ltd (1998) 145 FLR 308
SportsVision Australia Pty Ltd v Tallglen Ltd (1998) 44 NSWLR 103
SST Consulting Services Pty Ltd v Rieson (2006) 225 CLR 516
State Trading Corporation of India Ltd v M Golodetz Ltd [1989] 2 Lloyd’s Rep 277
Stirling Harbour Services Pty Ltd v Bunbury Port Authority [2000] ATPR 41-783
Stokely-Van Camp Inc v New Generation Beverages Pty Ltd (1998) 44 NSWLR 607
SWF Hoists and Industrial Equipment Pty Ltd v State Government Insurance Commission [1990] ATPR 41-045
Sykes v Reserve Bank of Australia (1998) 88 FCR 511
Telstra Corporation Ltd v Seven Cable Television Pty Ltd (2000) 102 FCR 517
Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 27 ALR 367
Ting v Blanche (1993) 118 ALR 543
Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (1992) 38 FCR 1
Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89
Trade Practices Commission v Milreis Pty Ltd (1977) 29 FLR 144
Trade Practices Commission v TNT Management Pty Ltd (1985) 6 FCR 1
Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) 38 SR (NSW) 632
United States v E I du Pont de Nemours & Co 351 US 377 (1956)
Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission (2003) 131 FCR 529
Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429
Uren v John Fairfax & Sons Ltd (1966) 117 CLR 118
Vancouver Malt and Sake Brewing Co Ltd v Vancouver Breweries Ltd [1934] AC 181
Visy Paper Pty Ltdv Australian Competition and Consumer Commission (2003) 216 CLR 1
West v Government Insurance Office (1981) 148 CLR 63
Western Australia v Ward (2000) 99 FCR 316
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Whitfield v De Lauret & Co Ltd (1920) 29 CLR 71
Willis v Commonwealth (1946) 73 CLR 105
Wright v TNT Management Pty Ltd (1989) 15 NSWLR 679
Areeda P and Kaplow L, Antitrust Analysis (4th ed, Little, Brown & Co, 1988)
Australian Psychological Society, Guidelines Relating to Recovered Memories (2000)
Brunt M, ‘“Market Definition”’ Issues in Australian and New Zealand Trade Practices Litigation’ (1990) 18 ABLR 86
Butler D and Rodrick S, Australian Media Law (2nd ed, Lawbook Co, 2003)
Heydon JD, Cross on Evidence (6th Aust ed, Butterworths, 2000)
Heydon JD, Cross on Evidence (7th Aust ed, LexisNexis Butterworths, 2004)
Heydon JD, The Restraint of Trade Doctrine (2nd ed, Butterworths, 1999)
Heydon JD, Trade Practices Law (Lawbook Co, subscription service)
Hovenkamp H, The Antitrust Enterprise: Principle and Execution (Harvard University Press, 2005)
Kaysen C and Turner D, Antitrust Policy (1959)
McLellan P, ‘Who Is Telling the Truth? Psychology, Common Sense and the Law’ (2006) 80 ALJ 655
Meagher RP, Heydon JD, Leeming MJ, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies (4^th ed, Butterworths LexisNexis, 2002)
Neale AD, The Antitrust Laws of the United States of America (2nd ed, Cambridge University Press, 1970)
Seddon NC and Ellinghaus MP, Cheshire and Fifoot’s Law of Contract (8th Aust ed, LexisNexis Butterworths, 2002)
Wigmore JH, Wigmore on Evidence (3rd ed, Little, Brown & Co, 1940)
SEVEN NETWORK LIMITED and ANOR v NEWS LIMITED and ORS
NSD 1223 of 2002
SACKVILLE J
27 JULY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1223 of 2002

BETWEEN:

SEVEN NETWORK LIMITED
First Applicant

C7 PTY LIMITED
Second Applicant

AND:

NEWS LIMITED
First Respondent

SKY CABLE PTY LIMITED
Second Respondent

TELSTRA MEDIA PTY LIMITED
Third Respondent

FOXTEL MANAGEMENT PTY LIMITED
Fourth Respondent

TELSTRA CORPORATION LIMITED
Fifth Respondent

TELSTRA MULTIMEDIA PTY LIMITED
Sixth Respondent

PUBLISHING AND BROADCASTING LIMITED
Seventh Respondent

NINE NETWORK AUSTRALIA PTY LIMITED
Eighth Respondent

PREMIER MEDIA GROUP PTY LIMITED
Ninth Respondent

AUSTRALIAN RUGBY FOOTBALL LEAGUE LIMITED
Twelfth Respondent

NATIONAL RUGBY LEAGUE INVESTMENTS PTY LIMITED
Thirteenth Respondent

NATIONAL RUGBY LEAGUE LIMITED
Fourteenth Respondent

FOXTEL CABLE TELEVISION PTY LIMITED
Fifteenth Respondent

OPTUS VISION PTY LIMITED
Sixteenth Respondent

AUSTAR UNITED COMMUNICATIONS LIMITED
Seventeenth Respondent

AUSTAR ENTERTAINMENT PTY LIMITED
Eighteenth Respondent

IAN HUNTLY PHILIP
Nineteenth Respondent

NEWS PAY TV PTY LIMITED
Twentieth Respondent

PBL PAY TV PTY LIMITED
Twenty-First Respondent

SINGTEL OPTUS PTY LIMITED
Twenty-Second Respondent

OPTUS VISION PTY LTD
First Cross Claimant

SINGTEL OPTUS PTY LIMITED
Second Cross Claimant

SEVEN NETWORK LIMITED
First Cross Respondent

C7 PTY LIMITED
Second Cross Respondent

JUDGE:

SACKVILLE J

DATE OF ORDER:

27 JULY 2007

WHERE MADE:

SYDNEY

THE COURT DIRECTS THAT:
1.Optus, on or before 24 August 2007, file and serve draft Short Minutes of Order disposing of the Cross-Claim.
2.The Respondents file and serve, on or before 24 August 2007, any evidence upon which they rely in relation to costs.
3.The Respondents file and serve, on or before 24 August 2007, written submissions as to costs.
4.Seven file and serve, on or before 7 September 2007, any evidence in reply on the question of costs.
5.Seven file and serve, on or before 7 September 2007, written submissions on costs.
6.The written submissions on costs of each group of Respondents not exceed ten double-spaced pages in length.
7.Seven’s written submissions on costs not exceed 15 double-spaced pages in length.
8.Seven file and serve, on or before 24 August 2007, written submissions as to whether any further findings should be made in relation to damages or other relief (‘further findings’) and, if so, what issues and evidence would need to be addressed.
9.The Respondents file and serve on or before 7 September 2007, written submissions as to whether any further findings should be made and, if so, what issues and evidence would need to be addressed.
10.Seven’s submissions as to any further findings should not exceed 15 double-spaced pages in length.
11.The written submissions of each group of respondents as to any further findings should not exceed ten double-spaced pages in length.
12.The proceedings be adjourned until 17 September 2007 at 10.15 am.

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
First Applicant

C7 PTY LIMITED
Second Applicant

AND:

NEWS LIMITED
First Respondent

SKY CABLE PTY LIMITED
Second Respondent

TELSTRA MEDIA PTY LIMITED
Third Respondent

FOXTEL MANAGEMENT PTY LIMITED
Fourth Respondent

TELSTRA CORPORATION LIMITED
Fifth Respondent

TELSTRA MULTIMEDIA PTY LIMITED
Sixth Respondent

PUBLISHING AND BROADCASTING LIMITED
Seventh Respondent

NINE NETWORK AUSTRALIA PTY LIMITED
Eighth Respondent

PREMIER MEDIA GROUP PTY LIMITED
Ninth Respondent

AUSTRALIAN RUGBY FOOTBALL LEAGUE LIMITED
Twelfth Respondent

NATIONAL RUGBY LEAGUE INVESTMENTS PTY LIMITED
Thirteenth Respondent

NATIONAL RUGBY LEAGUE LIMITED
Fourteenth Respondent

FOXTEL CABLE TELEVISION PTY LIMITED
Fifteenth Respondent

OPTUS VISION PTY LIMITED
Sixteenth Respondent

AUSTAR UNITED COMMUNICATIONS LIMITED
Seventeenth Respondent

AUSTAR ENTERTAINMENT PTY LIMITED
Eighteenth Respondent

IAN HUNTLY PHILIP
Nineteenth Respondent

NEWS PAY TV PTY LIMITED
Twentieth Respondent

PBL PAY TV PTY LIMITED
Twenty-First Respondent

SINGTEL OPTUS PTY LIMITED
Twenty-Second Respondent

OPTUS VISION PTY LTD
First Cross Claimant

SINGTEL OPTUS PTY LIMITED
Second Cross Claimant

SEVEN NETWORK LIMITED
First Cross Respondent

C7 PTY LIMITED
Second Cross Respondent

JUDGE:

SACKVILLE J

DATE:

27 JULY 2007

PLACE:

SYDNEY

REASONS FOR JUDGMENT

TABLE OF CONTENTS
1. MEGA-LITIGATION AND ITS DISCONTENTS........ ........ ........ ........ ........ ........ ... [1]
1.1Introduction........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... [1]
1.2The Hearing........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... [6]
1.3Extent of the Documentation........ ........ ........ ........ ........ ........ ........ ........ ...... [11]
1.4Costs........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... [17]
1.5Challenges........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... [19]
1.6Attempts to Refine the Issues........ ........ ........ ........ ........ ........ ........ ........ .... [29]
1.7Chronologies........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ [42]
1.8Preparing a Judgment........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . [46]
1.9Scope of the Judgment........ ........ ........ ........ ........ ........ ........ ........ ........ ........ [51]
1.9.1Unresolved Issues........ ........ ........ ........ ........ ........ ........ ........ ........ .... [51]
1.9.2Length of the Judgment........ ........ ........ ........ ........ ........ ........ ........ .. [57]

1.10A Risk........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. [63]
1.11A Cautionary Tale........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....... [67]

2. OVERVIEW........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...... [75]
2.1Introduction........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. [75]
2.2Seven’s Principal Claims........ ........ ........ ........ ........ ........ ........ ........ ........ ..... [79]
2.2.1Anti-Competitive Conduct Causing Harm to C7........ ........ ........ ... [79]
2.2.2Causes of Action Based on Anti-Competitive Conduct Causing Harm to C7 [88]
2.2.2.1Master Agreement: The Effects Case........ ........ ........ ..... [88]
2.2.2.2Master Agreement: The Purpose Case........ ........ ........ ..... [93]
2.2.2.3Taking Advantage of Market Power........ ........ ........ ...... [95]
2.2.2.4Denial of Access to the Telstra Cable........ ........ ........ .. [97]
2.2.2.5Relief Sought by Seven........ ........ ........ ........ ........ ........ ....... [99]
2.2.3Anti-Competitive Conduct: The Foxtel-Optus CSA........ ........ ... [103]

2.3Seven’s Claims Arising out of the NRL Bidding Process........ ........ ....... [110]
2.4Optus-Specific Causes of Action........ ........ ........ ........ ........ ........ ........ ...... [115]
2.4.1Seven’s Claims against the Optus Respondents........ ........ ........ .. [115]
2.4.2Optus’ Cross-Claim........ ........ ........ ........ ........ ........ ........ ........ ....... [121]

2.5Settled Claims........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... [124]
2.6Structure of the Judgment........ ........ ........ ........ ........ ........ ........ ........ ........ . [127]
2.7Summary of Conclusions........ ........ ........ ........ ........ ........ ........ ........ ........ ... [151]
2.7.1General Observations........ ........ ........ ........ ........ ........ ........ ........ .... [151]
2.7.2Specific Conclusions........ ........ ........ ........ ........ ........ ........ ........ ..... [164]

2.8Proposed Orders........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ [177]

3. THE PARTIES AND THE FOOTBALL COMPETITIONS........ ........ ........ ........ [180]
3.1Applicants........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. [180]
3.1.1Seven Network........ ........ ........ ........ ........ ........ ........ ........ ........ ....... [180]
3.1.2C7 and the Content Supply Agreements........ ........ ........ ........ ...... [185]
3.1.3Seven’s Officers........ ........ ........ ........ ........ ........ ........ ........ ........ ..... [192]

3.2Respondents........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...... [194]
3.2.1News Parties........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. [194]
3.2.1.1News (and TNCL)........ ........ ........ ........ ........ ........ ........ ....... [194]
3.2.1.2News Pay TV........ ........ ........ ........ ........ ........ ........ ........ ....... [198]
3.2.1.3NRLI........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..... [199]
3.2.1.4Mr Philip........ ........ ........ ........ ........ ........ ........ ........ ........ ..... [201]
3.2.1.5News’ Officers........ ........ ........ ........ ........ ........ ........ ........ ... [203]
3.2.2Telstra Parties........ ........ ........ ........ ........ ........ ........ ........ ........ ........ [205]
3.2.2.1Telstra........ ........ ........ ........ ........ ........ ........ ........ ........ ........ [205]
3.2.2.2Telstra Media........ ........ ........ ........ ........ ........ ........ ........ .... [207]
3.2.2.3Telstra Multimedia........ ........ ........ ........ ........ ........ ........ .. [208]
3.2.2.4Telstra’s Officers........ ........ ........ ........ ........ ........ ........ .... [211]
3.2.3PBL Parties........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... [213]
3.2.3.1PBL........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....... [213]
3.2.3.2Nine........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....... [216]
3.2.3.3PBL Pay TV........ ........ ........ ........ ........ ........ ........ ........ ........ .. [218]
3.2.3.4PBL’s Officers........ ........ ........ ........ ........ ........ ........ ........ ... [220]
3.2.4Sky Cable........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....... [221]
3.2.5Foxtel Parties........ ........ ........ ........ ........ ........ ........ ........ ........ ........ [224]
3.2.5.1Foxtel Partnership........ ........ ........ ........ ........ ........ ........ ... [224]
3.2.5.2Foxtel Management........ ........ ........ ........ ........ ........ ........ .. [229]
3.2.5.3Foxtel Cable........ ........ ........ ........ ........ ........ ........ ........ ...... [234]
3.2.5.4Ownership Table........ ........ ........ ........ ........ ........ ........ ....... [237]
3.2.5.5Foxtel’s Officers........ ........ ........ ........ ........ ........ ........ ...... [240]
3.2.6Fox Sports........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...... [242]
3.2.6.1Ownership of Fox Sports........ ........ ........ ........ ........ ........ [242]
3.2.6.2Ownership Tables........ ........ ........ ........ ........ ........ ........ ..... [249]
3.2.6.3Fox Sports’ Officers........ ........ ........ ........ ........ ........ ........ [251]
3.2.7ARL and NRL Parties........ ........ ........ ........ ........ ........ ........ ........ ... [252]
3.2.7.1NRL Partnership........ ........ ........ ........ ........ ........ ........ ....... [252]
3.2.7.2NRL Ltd........ ........ ........ ........ ........ ........ ........ ........ ........ ....... [256]
3.2.7.3NRL Corporate Structure Table........ ........ ........ ........ .. [259]
3.2.8Optus Parties........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . [260]
3.2.8.1Optus Vision........ ........ ........ ........ ........ ........ ........ ........ ....... [260]
3.2.8.2SingTel Optus........ ........ ........ ........ ........ ........ ........ ........ ..... [268]
3.2.8.3Optus’ Officers........ ........ ........ ........ ........ ........ ........ ........ .. [271]

3.3Interlocking Directorships and Key Relationships........ ........ ........ ........ . [272]
3.4Inactive Parties: Austar........ ........ ........ ........ ........ ........ ........ ........ ........ .... [274]
3.5Former Parties........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... [279]
3.5.1Ten........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. [279]
3.5.2AFL........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ [282]

3.6Football Competitions........ ........ ........ ........ ........ ........ ........ ........ ........ ....... [284]
3.6.1AFL Competition........ ........ ........ ........ ........ ........ ........ ........ ........ .. [284]
3.6.2Rugby League Competitions........ ........ ........ ........ ........ ........ ........ . [290]

4. FRAMEWORK FOR TELEVISION BROADCASTING IN AUSTRALIA...... [301]
4.1Introduction........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ [301]
4.2Licensing Regime under the Broadcasting Services Act........ ........ ........ . [303]
4.2.1Broadcasting Licences........ ........ ........ ........ ........ ........ ........ ........ .. [303]
4.2.2Commercial Television Broadcasting Licences........ ........ ........ ... [312]
4.2.3Subscription Television Licences........ ........ ........ ........ ........ ........ . [315]

4.3Anti-Siphoning and Anti-Hoarding........ ........ ........ ........ ........ ........ ........ .... [317]
4.3.1Anti-Siphoning Regime........ ........ ........ ........ ........ ........ ........ ........ [317]
4.3.2Anti-Hoarding Regime........ ........ ........ ........ ........ ........ ........ ........ .. [327]

4.4Program Standards, Codes of Practice and Regulation of Advertising.. [328]
4.4.1Free-To-Air Television........ ........ ........ ........ ........ ........ ........ ........ .. [328]
4.4.2Pay Television........ ........ ........ ........ ........ ........ ........ ........ ........ ........ [334]

4.5Telecommunications Access Regime........ ........ ........ ........ ........ ........ ....... [338]
4.6Brief Overview of Free-to-Air Broadcasting........ ........ ........ ........ ........ ... [345]
4.6.1Networks........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ [345]
4.6.2Technologies........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. [347]
4.6.3Ratings........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... [354]

4.7Pay Television in Australia........ ........ ........ ........ ........ ........ ........ ........ ....... [355]
4.7.1Subscribers........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..... [356]
4.7.2Basic and Tiers........ ........ ........ ........ ........ ........ ........ ........ ........ ...... [357]
4.7.3Bundling........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ [361]
4.7.4A Matter of Terminology........ ........ ........ ........ ........ ........ ........ ....... [365]

5. CREDIBILITY OF LAY WITNESSES........ ........ ........ ........ ........ ........ ........ ........ .. [366]
5.1General Observations........ ........ ........ ........ ........ ........ ........ ........ ........ ....... [367]
5.2Seven’s Witnesses........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... [385]
5.2.1Mr Stokes........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ [385]
5.2.2Mr Gammell........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... [399]
5.2.3Mr Wise........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. [408]

5.3News’ Witnesses........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....... [413]
5.3.1Mr Macourt........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... [413]
5.3.2Mr Philip........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ [420]

5.4Foxtel’s Witnesses........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... [432]
5.4.1Mr Mockridge........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . [432]

5.5Telstra’s Witnesses........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... [438]
5.5.1Dr Switkowski........ ........ ........ ........ ........ ........ ........ ........ ........ ........ [438]
5.5.2Mr Akhurst........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..... [449]

5.6Optus’ Witnesses........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...... [458]
5.6.1Mr Lee........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... [458]
5.6.2Mr Anderson........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. [460]

5.7Rule in Jones v Dunkel........ ........ ........ ........ ........ ........ ........ ........ ........ ..... [465]
5.8Document Deletion Policies........ ........ ........ ........ ........ ........ ........ ........ ...... [482]

6. BACKGROUND TO PAY TELEVISION IN AUSTRALIA: 1993-1999........ ... [491]
6.11993........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... [492]
6.21994........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... [494]
6.2.1Origins of Austar........ ........ ........ ........ ........ ........ ........ ........ ........ ... [494]
6.2.2Origins of Fox Sports........ ........ ........ ........ ........ ........ ........ ........ .... [495]
6.2.3Origins of the Foxtel Partnership........ ........ ........ ........ ........ ........ [497]
6.2.4Origins of Optus Vision........ ........ ........ ........ ........ ........ ........ ........ [498]

6.31995........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... [499]
6.3.1Alliance: TNCL and Telstra........ ........ ........ ........ ........ ........ ........ . [499]
6.3.2Australis and the Foxtel Partnership........ ........ ........ ........ ........ ... [501]
6.3.3Seven and Optus Vision........ ........ ........ ........ ........ ........ ........ ........ [503]
6.3.3.1SportsVision........ ........ ........ ........ ........ ........ ........ ........ ...... [507]
6.3.3.2Tallglen Agreement........ ........ ........ ........ ........ ........ ........ . [508]
6.3.4Seven Extends the AFL Broadcasting Rights........ ........ ........ ..... [509]
6.3.5SportsVision Distributes Programs........ ........ ........ ........ ........ ...... [512]
6.3.6Austar Commences........ ........ ........ ........ ........ ........ ........ ........ ........ [514]
6.3.7The Foxtel Partnership Agreements........ ........ ........ ........ ........ .... [515]
6.3.8Australis Has Liquidity Problems........ ........ ........ ........ ........ ........ [517]
6.3.9News Joins Fox Sports........ ........ ........ ........ ........ ........ ........ ........ .. [518]

6.41996........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... [519]
6.4.1PBL and Australis........ ........ ........ ........ ........ ........ ........ ........ ........ . [519]
6.4.2Seven versus PBL........ ........ ........ ........ ........ ........ ........ ........ ........ .. [520]

6.51997........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... [522]
6.5.1Seven and Nine Leave Optus Vision........ ........ ........ ........ ........ .... [522]
6.5.2Umbrella Agreement........ ........ ........ ........ ........ ........ ........ ........ ..... [523]
6.5.3SportsVision versus Seven........ ........ ........ ........ ........ ........ ........ ..... [527]
6.5.4Telstra, News and PBL Agree........ ........ ........ ........ ........ ........ ....... [529]
6.5.5The ACCC Intervenes........ ........ ........ ........ ........ ........ ........ ........ ... [531]
6.5.6AFL First and Last Deed........ ........ ........ ........ ........ ........ ........ ...... [533]
6.5.7News Acquires Half of Fox Sports........ ........ ........ ........ ........ ....... [536]
6.5.8The Content Agreements........ ........ ........ ........ ........ ........ ........ ....... [537]

6.61998........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... [540]
6.6.1Foxtel and Austar Agree........ ........ ........ ........ ........ ........ ........ ....... [540]
6.6.2Australis Collapses........ ........ ........ ........ ........ ........ ........ ........ ........ [541]
6.6.2.1News Acquires All of Fox Sports........ ........ ........ ........ . [542]
6.6.2.2Premium Movie Partnership and Foxtel........ ........ ........ [543]
6.6.3Fox Sports-Austar Interim Licence........ ........ ........ ........ ........ ...... [544]
6.6.4Austar Sub-Licenses Fox Sports to Foxtel........ ........ ........ ........ .. [546]
6.6.5Merger Agreement........ ........ ........ ........ ........ ........ ........ ........ ........ . [548]
6.6.6AFL Website........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. [549]
6.6.7C7-Optus CSA........ ........ ........ ........ ........ ........ ........ ........ ........ ....... [550]
6.6.8C7 Commences Service........ ........ ........ ........ ........ ........ ........ ........ .. [551]
6.6.9PBL Exercises Its Option over the Foxtel Partnership........ ....... [553]
6.6.10PBL’s Option over Fox Sports........ ........ ........ ........ ........ ........ ...... [556]

6.71999........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... [557]
6.7.1C7-Austar CSA........ ........ ........ ........ ........ ........ ........ ........ ........ ...... [557]
6.7.2ACCC Declaration........ ........ ........ ........ ........ ........ ........ ........ ........ [558]
6.7.3PBL Exercises Its Fox Sports Option........ ........ ........ ........ ........ .. [560]
6.7.4Pay Television Providers........ ........ ........ ........ ........ ........ ........ ....... [561]

7. FOXTEL, C7 AND THE DISPUTE BETWEEN NEWS AND TELSTRA........ .. [563]
7.1Introduction........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ [563]
7.2Fox Sports Licenses Austar........ ........ ........ ........ ........ ........ ........ ........ ...... [565]
7.3Seven’s Projections: May 1998........ ........ ........ ........ ........ ........ ........ ........ [572]
7.4News’ Dilemma........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . [574]
7.5Proposed Supply of Fox Sports to Optus........ ........ ........ ........ ........ ........ .. [576]
7.6The Supply of Fox Sports to Foxtel: Early Negotiations........ ........ ........ . [583]
7.7News’ Financial Models: Mid-1998........ ........ ........ ........ ........ ........ ........ . [594]
7.8C7’s First Proposal to Foxtel: 7 June 1998........ ........ ........ ........ ........ ...... [598]
7.9C7’s Business Plans: July–August 1998........ ........ ........ ........ ........ ........ .. [603]
7.10The Issues Crystallise between News and Telstra........ ........ ........ ........ .. [606]
7.10.1News Tries to Persuade Telstra........ ........ ........ ........ ........ ........ .... [606]
7.10.2Telstra Responds........ ........ ........ ........ ........ ........ ........ ........ ........ .... [610]
7.10.3Further Meetings: August-September 1998........ ........ ........ ........ . [612]

7.11Telstra’s Responses to the Fox Sports-Austar Licence and Further Negotiations with News: October-November 1998........ ........ ........ ........ ........ ........ ........ ....... [619]
7.12Seven’s Second Proposal to Foxtel: 5 November 1998........ ........ ........ ... [627]
7.12.1The Proposal........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. [627]
7.12.2ACCC Becomes Involved........ ........ ........ ........ ........ ........ ........ ...... [629]
7.12.3Foxtel Responds to Seven’s Offer........ ........ ........ ........ ........ ........ . [635]
7.12.4ACCC Takes No Action........ ........ ........ ........ ........ ........ ........ ........ [637]

7.13Supply of C7 to Austar........ ........ ........ ........ ........ ........ ........ ........ ........ ...... [638]
7.13.1Negotiations between Optus and Austar........ ........ ........ ........ ...... [639]
7.13.2Negotiations between Seven and Austar........ ........ ........ ........ ...... [644]
7.13.3C7-Austar CSA: March 1999........ ........ ........ ........ ........ ........ ........ [651]

7.14Negotiations between News and Telstra........ ........ ........ ........ ........ ........ .. [654]
7.14.1Mr Blount and Mr Murdoch Meet Again........ ........ ........ ........ ..... [654]
7.14.2Each Side States Its Position........ ........ ........ ........ ........ ........ ........ [657]

7.15Dr Switkowski Changes the Tone........ ........ ........ ........ ........ ........ ........ .... [662]
7.16Foxtel Considers C7: Early 1999........ ........ ........ ........ ........ ........ ........ ...... [666]
7.17Foxtel Management’s Board Meeting of 23 March 1999........ ........ ...... [678]
7.18Seven Network’s Board Meeting of 26 March 1999........ ........ ........ ...... [683]
7.19Mr Rupert Murdoch Visits Foxtel........ ........ ........ ........ ........ ........ ........ ... [687]
7.20Seven’s Third Proposal: April 1999........ ........ ........ ........ ........ ........ ........ .. [689]
7.20.1The Proposal........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. [689]
7.20.2Discussions Concerning the Proposal........ ........ ........ ........ ........ .. [692]
7.20.3Seven Clarifies Some Matters........ ........ ........ ........ ........ ........ ....... [698]
7.20.4Branding of C7........ ........ ........ ........ ........ ........ ........ ........ ........ ...... [702]

7.21Fox Sports Budget for 1999–2000........ ........ ........ ........ ........ ........ ........ .... [704]
7.22Mr Freudenstein’s Term Sheet: May 1999........ ........ ........ ........ ........ ..... [706]
7.23Seven Network’s Board Meeting of 28 May 1999........ ........ ........ ........ . [711]
7.24Seven’s Draft Heads of Agreement: 9 June 1999........ ........ ........ ........ ... [715]
7.25Seven Network’s Board Meeting of 25 July 1999........ ........ ........ ........ .. [721]
7.26Foxtel’s AFL Strategy Paper........ ........ ........ ........ ........ ........ ........ ........ .... [723]
7.26.1Final Paper........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... [723]
7.26.2Drafts of the Strategy Paper........ ........ ........ ........ ........ ........ ........ .. [730]
7.26.3Mr Mockridge’s Evidence........ ........ ........ ........ ........ ........ ........ ...... [733]
7.26.4Telstra’s Assessment of the AFL Strategy Paper........ ........ ........ . [736]
7.26.5Foxtel Management’s Board Meeting of 8 July 1999........ ........ .. [737]

7.27Fox Sports Pricing Dispute........ ........ ........ ........ ........ ........ ........ ........ ....... [743]
7.27.1Ms Lowes Builds a Case........ ........ ........ ........ ........ ........ ........ ........ [743]
7.27.2Mr Macourt Replies to Mr Moriarty........ ........ ........ ........ ........ ...... [747]
7.27.3Internal Telstra Memoranda: August/September 1999........ ....... [749]

7.28Foxtel Management’s Board Meeting of 21 September 1999........ ....... [753]
7.29Telstra’s Response to Seven’s Tactics........ ........ ........ ........ ........ ........ .... [759]
7.30News, PBL and Telstra Meet: 22 October 1999........ ........ ........ ........ ..... [763]
7.31Foxtel Management’s Board Meeting of 26 October 1999........ ........ .... [768]
7.31.1Mr Mockridge’s AFL Strategy Paper........ ........ ........ ........ ........ .... [768]
7.31.2The Board Meeting........ ........ ........ ........ ........ ........ ........ ........ ........ [773]

7.32Optus Seeks Fox Sports........ ........ ........ ........ ........ ........ ........ ........ ........ .... [774]
7.33Seven’s Letter of 17 November 1999........ ........ ........ ........ ........ ........ ...... [776]
7.33.1The Letter........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....... [776]
7.33.2Mr Stokes’ Understanding........ ........ ........ ........ ........ ........ ........ .... [780]
7.33.3Foxtel’s Response to Seven’s Offer........ ........ ........ ........ ........ ...... [784]
7.33.4Telstra’s Assessment........ ........ ........ ........ ........ ........ ........ ........ ...... [787]
7.33.5Seven’s Reply to Foxtel........ ........ ........ ........ ........ ........ ........ ........ . [789]

7.34Mr Mockridge Sees Opportunities........ ........ ........ ........ ........ ........ ........ .. [792]
7.35Mr Blomfield and Mr Stokes Correspond........ ........ ........ ........ ........ ....... [797]
7.36Communications within Telstra: May 2000........ ........ ........ ........ ........ ..... [801]
7.37Foxtel Agrees to Take the Olympic Channels........ ........ ........ ........ ........ . [806]
7.38Telstra and News Consider Changes in the Foxtel Partnership: May-July 2000 [807]
7.39Optus Tries Again to Obtain Fox Sports........ ........ ........ ........ ........ ........ .. [819]
7.40Further Discussions between News and Telstra: August 2000-January 2001.... [821]

8. AWARD OF THE AFL PAY TELEVISION RIGHTS........ ........ ........ ........ ........ . [824]
8.1Seven’s Entitlements to the AFL Broadcasting Rights........ ........ ........ ... [826]
8.1.1AFL-Seven Licence Extension........ ........ ........ ........ ........ ........ ..... [826]
8.1.2AFL First and Last Deed........ ........ ........ ........ ........ ........ ........ ...... [833]

8.2Early Interest in the AFL Broadcasting Rights: Foxtel, Nine and Telstra [838]
8.3Mr Mounter’s Strategy at Seven........ ........ ........ ........ ........ ........ ........ ..... [845]
8.4Foxtel Prepares a Strategy........ ........ ........ ........ ........ ........ ........ ........ ....... [849]
8.5Seven’s Presentation to the AFL: 21 June 1999........ ........ ........ ........ ..... [852]
8.6Foxtel’s AFL Strategy Paper........ ........ ........ ........ ........ ........ ........ ........ .... [859]
8.7Mr Mounter Leaves Seven........ ........ ........ ........ ........ ........ ........ ........ ...... [860]
8.8Foxtel Management’s Board Meeting of 26 October 1999........ ........ .... [863]
8.9AFL Commission Meeting of 5 November 1999........ ........ ........ ........ ..... [864]
8.10Seven’s Initial Offer: December 1999........ ........ ........ ........ ........ ........ ..... [866]
8.10.1Mr Stokes’ Warning........ ........ ........ ........ ........ ........ ........ ........ ....... [866]
8.10.2The Offer........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ [869]

8.11Project Chess........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..... [871]
8.12Mr Mockridge and Ms Lowes Depart: February 2000........ ........ ........ .. [876]
8.13Seven’s Offer of 17 March 2000........ ........ ........ ........ ........ ........ ........ ...... [879]
8.13.1The Offer........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ [879]
8.13.2AFL Meeting of 20 March 2000........ ........ ........ ........ ........ ........ .... [884]
8.13.3AFL’s Response to Seven’s Offer........ ........ ........ ........ ........ ........ . [885]

8.14Project Chess: March-May 2000........ ........ ........ ........ ........ ........ ........ ..... [886]
8.15Foxtel’s Presentations to the AFL: May-June 2000........ ........ ........ ....... [893]
8.16Telstra Withdraws from the AFL Bidding: June 2000........ ........ ........ ..... [894]
8.16.1Mr Stokes and Dr Switkowski Meet........ ........ ........ ........ ........ ...... [894]
8.16.2Telstra Decides to Bid Only for New Media Rights........ ........ .... [900]
8.16.3Mr Akhurst Advises Mr Stokes of the Decision........ ........ ........ .... [901]
8.16.4Mr Akhurst’s Understanding........ ........ ........ ........ ........ ........ ........ [903]
8.16.5Telstra Informs the AFL........ ........ ........ ........ ........ ........ ........ ....... [908]

8.17Foxtel Presents to the AFL........ ........ ........ ........ ........ ........ ........ ........ ....... [909]
8.18Telstra and the AFL: June-August 2000........ ........ ........ ........ ........ ........ .. [913]
8.19Fox Sports Decides Not to Bid: July 2000........ ........ ........ ........ ........ ....... [917]
8.20The AFL’s Four Column Chart........ ........ ........ ........ ........ ........ ........ ........ . [919]
8.20.1The Chart........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....... [919]
8.20.2Foxtel Meets the AFL........ ........ ........ ........ ........ ........ ........ ........ ... [923]

8.21Mr Wylie’s Projections: July 2000........ ........ ........ ........ ........ ........ ........ ... [926]
8.22Seven and the AFL: July-August 2000........ ........ ........ ........ ........ ........ ..... [928]
8.22.1Seven’s Interpretation of the First and Last Deed........ ........ ...... [928]
8.22.2Meetings With the AFL........ ........ ........ ........ ........ ........ ........ ........ . [929]

8.23News Considers Acquiring the AFL Broadcasting Rights: July-August 2000.... [934]
8.24AFL Commission Meeting of 27 August 2000........ ........ ........ ........ ........ . [942]
8.25News’ Bid Develops........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. [946]
8.25.1Mr Frykberg Negotiates for a Consortium........ ........ ........ ........ ... [946]
8.25.2News, Telstra and the Internet Rights........ ........ ........ ........ ........ . [949]
8.25.3Nine’s Response........ ........ ........ ........ ........ ........ ........ ........ ........ ..... [953]

8.26Seven’s Draft Offer of 5 October 2000........ ........ ........ ........ ........ ........ .... [956]
8.27Foxtel’s Board Paper of 25 October 2000........ ........ ........ ........ ........ ........ [963]
8.28Flip-Flop Emerges........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..... [971]
8.29Mr Frykberg Meets the AFL: 30 October 2000........ ........ ........ ........ ..... [977]
8.30Telstra Rejects Mr Blomfield’s Proposal........ ........ ........ ........ ........ ........ [978]
8.30.1Mr Brenton Willis Discusses Modelling........ ........ ........ ........ ....... [978]
8.30.2Telstra Declines........ ........ ........ ........ ........ ........ ........ ........ ........ ..... [981]
8.30.3Foxtel Responds........ ........ ........ ........ ........ ........ ........ ........ ........ .... [990]
8.30.4Telstra Further Considers Its Position........ ........ ........ ........ ........ [994]

8.31‘Killing C7’ Conversations........ ........ ........ ........ ........ ........ ........ ........ ..... [1004]
8.31.1Mr Falloon and Mr Gammell........ ........ ........ ........ ........ ........ ...... [1004]
8.31.2Telstra’s Answers to Interrogatories........ ........ ........ ........ ........ .. [1006]

8.32Nine Is Asked to Contribute More........ ........ ........ ........ ........ ........ ........ [1007]
8.33Foxtel Management’s Board Meeting of 9 November 2000........ ........ [1008]
8.33.1Preliminaries........ ........ ........ ........ ........ ........ ........ ........ ........ ....... [1008]
8.33.2The Board Decision........ ........ ........ ........ ........ ........ ........ ........ ..... [1015]

8.34ACCC Foreshadows Non-Intervention........ ........ ........ ........ ........ ........ .. [1017]
8.35Seven Network’s Board Meeting of 17 November 2000........ ........ ...... [1018]
8.36Mr Frykberg’s Discussions: Mid-November 2000........ ........ ........ ....... [1020]
8.37Seven Complains to the ACCC: 22 November 2000........ ........ ........ ..... [1024]
8.38Telstra: Early November – 6 December 2000........ ........ ........ ........ ....... [1026]
8.39Mr Stokes Contemplates Withdrawing from the Bidding........ ........ ..... [1033]
8.40AFL’s First Offer: 28 November 2000........ ........ ........ ........ ........ ........ ... [1036]

Sport/Event

On list expiring 31
December 2005
On list starting 1 January 2006 and expiring 31
December 2010

Horse Racing

Melbourne Cup.

Yes

Yes

Australian Rules Football

·      Each match in the Australian Football League Premiership Competition, including the Finals Series.

·      Each Australian Football League State of Origin match.
Yes Yes

Rugby League

·      Each match in the National Rugby League Premiership competition including the finals series.

·      Each match in the Rugby League State of Origin Series.

·      Each Rugby League international ‘Test’ matches involving the senior Australian representative team, whether played in Australia or overseas.

·      Any other match involving the senior Australian representative team whether played in Australia or overseas (only listed on the anti-siphoning list from 11 May 2004).

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Rugby Union

·    Each Rugby Union International ‘Test match’ involving the senior Australian representative team whether played in Australia or overseas.

·    Each match in the Rugby World Cup tournament.

·    Each match in the Hong Kong Sevens Tournament

Yes

Yes

Yes

Yes

Yes

-

Cricket

·      Each ‘Test’ cricket match involving the senior Australian representative team, whether played in Australia or overseas.

·      Each ‘Test’ cricket match involving the senior Australian representative team played in Australia or the United Kingdom.

·      Each one day cricket match (including World Series Cricket matches), involving the senior Australian representative team, whether played in Australia or overseas.

·      Each one day cricket match involving the senior Australian representative team played in Australia or the United Kingdom, or as part of a series in which at least one match of the series is played in Australia.

·      Each World Cup one day cricket match.

Yes

-

Yes

-

Yes

-

Yes

-

Yes

Yes

Soccer

·      Each finals match in the Ericsson Cup competition organised by the National Soccer League.

·      The English Football Association Cup final.

·      Each match in the Federation of International Football Associations World Cup tournament.

Yes

Yes

Yes

-

Yes

Yes

Tennis

·      Each match in the Australian Open tennis tournament.

·      Each match in the Wimbledon (the Lawn Tennis championships) tournament.

·      Each match in the French Open tennis tournament.

·      Each match in the men’s and women’s singles quarter-finals, semi-finals and finals of the French Open tennis tournament.

·      Each match in the United States Open tennis tournament.

·      Each match in the men’s and women’s singles quarter-finals, semi-finals and finals of the United States Open tennis tournament.

·      Each match in the Australian Men’s Hardcourt Championships tennis tournament …

·      Each match in the Australian Women’s Hardcourt Championships tennis tournament …

·      Each match in the (New South Wales) Peters International tennis tournament (now known as the Adidas International Tennis Tournament).

·      Each match in each tie in the Davis Cup tournament when an Australian Representative team is involved.

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

-

-

-

Yes

Netball

·      Each international netball match involving the Australian representative team, whether played in Australia or overseas.

Y

Yes

Basketball

·      Each match in the Australian National Basketball League playoffs.

Yes

-

Golf

·      Each round of the Australian Masters tournament.

·      Each round of the Australian Open tournament.

·      Each round of the United States Masters tournament.

·      Each round of the United States Open tournament.

·      Each round of the United states Professional golf Association Championship tournament.

·      Each round of the British Open tournament.

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

-

-

Yes

Motor sport

·      Each race in the Federation Internationale de l’Automobile formula 1 World championship (Grand Prix).

·      Each race in the Federation Internationale de l’Automobile Formula 1 World Championship (Grand Prix) held in Australia.

·      Each race in the International Federation of Motorcycling World 500cc Motorcycle championship…

·      Each race in the International Federation of Motorcycling world 500cc Motorcycle Championship … held in Australia.

·      Each race in the Australian Touring Car championship …

·      Each Bathurst 1000 race.

·      Each race in the Australian IndyCar grand Prix …

Yes

-

Yes

-

Yes

Yes

Yes

-

Yes

-

Yes

Yes

Yes

Yes

Olympic Games

·      Each event held as part of the Olympic Games.

-

Yes

Commonwealth Games

·      Each event held as part of the Commonwealth Games.

-

Yes

ANNEXURE B
LISTS OF ABBREVIATIONS
The abbreviations recorded in the following lists appear in bold in the judgment when the abbreviations are first used.
TABLE B.1:  The Parties

Abbreviation

Full Name of Party

First reference

AFL

Australian Football League Ltd (formerly the Eleventh Respondent)

Ch 2 [83]

ARL

Australian Rugby Football League Ltd (Twelfth Respondent)

Ch 2 [110]

Austar

Austar Entertainment Pty Ltd and/or Austar United Communications Ltd

Ch 2 [85]

Austar Entertainment

Austar Entertainment Pty Ltd (Eighteenth Respondent)

Ch 2 [85]

Austar United

Austar United Communications Ltd (Seventeenth Respondent)

Ch 2 [85]

C7

C7 Pty Ltd (Second Applicant; Second Cross-Respondent)

Ch 1 [4]

Foxtel Cable

Foxtel Cable Television Pty Ltd (Fifteenth Respondent)

Ch 2 [150]

Foxtel Management

Foxtel Management Pty Ltd (Fourth Respondent)

Ch 2 [104]

Fox Sports

Premier Media Group Pty Ltd (Ninth Respondent)

Ch 3 [242]

News

News Ltd (First Respondent)

Ch 2 [79]

News Pay TV

News Pay TV Pty Ltd (Twentieth Respondent)

Ch 3 [195]

Nine

Nine Network Australia Pty Ltd (Eighth Respondent)

Ch 2 [80]

NRL

National Rugby League

Ch 2 [84]

NRLI

National Rugby League Investments Pty Ltd (Thirteenth Respondent)

Ch 2 [110]

NRL Ltd

National Rugby League Ltd (Fourteenth Respondent)

Ch 3 [203]

Optus

Optus Vision Pty Ltd and/or SingTel Optus Pty Ltd

Ch 1 [14]

Optus Vision

Optus Vision Pty Ltd (Sixteenth Respondent; First Cross-Claimant)

Ch 1 [14]

PBL

Publishing and Broadcasting Ltd (Seventh Respondent)

Ch 2 [79]

PBL Pay TV

PBL Pay TV Pty Ltd (Twenty-First Respondent)

Ch 3 [215]

Mr Philip

Ian Huntly Philip (Nineteenth Respondent)

Ch 2 [111]

Seven

Seven Network Ltd and/or C7 Pty Ltd

Ch 1 [4]

Seven Network

Seven Network Ltd (First Applicant; First Cross-Respondent)

Ch 1 [10]

SingTel Optus

SingTel Optus Pty Ltd (Twenty-Second Respondent; Second Cross-Claimant)

Ch 1 [14]

Sky Cable

Sky Cable Pty Ltd (Second Respondent)

Ch 2 [80]

Ten

Network Ten Pty Ltd (formerly the Tenth Respondent)

Ch 2 [84]

Telstra

Telstra Corporation Ltd (Fifth Respondent)

Ch 2 [79]

Telstra Media

Telstra Media Pty Ltd (Third Respondent)

Ch 2 [80]

Telstra Multimedia

Telstra Multimedia Pty Ltd (Sixth Respondent)

Ch 2 [80]

TABLE B.2  Other Abbreviations

Abbreviation	Full Meaning	First paragraph reference
7 Network	The free-to-air television broadcasting network known as the Seven Network.	Ch 3 [180]
ABA	Australian Broadcasting Authority.	Ch 4 [304]
ABC	Australian Broadcasting Corporation.	Ch 4 [345]
ACCC	Australian Competition and Consumer Commission.	Ch 1 [52]
ACE	Australian Capital Equity Pty Ltd.	Ch 3 [192]
Acquisition Agreements	The Foxtel Put, Nine Put, Ten Put, News-AFL Licence, News-Foxtel Licence, News-Nine Licence, News-Ten Licence, NRL Bidding Agreement and the Fox Sports-NRL Pay Rights Agreement.	Ch 13 [2115]
AFL free-to-air television rights	The rights to broadcast AFL matches as part of a free-to-air television service.	Ch 13 [2109]
AFL pay television rights	The rights to broadcast AFL matches as part of a subscription television service.	Ch 13 [2109]
AFL pay rights market	A market in Australia for the acquisition and supply of pay television rights to broadcast AFL matches.	Ch 12 [1804]
AFL Proposal	News’ proposal pleaded in par 99 of the Statement of Claim.	Ch 13 [2110]
AGS	Australian Government Solicitor.	Ch 7 [629]
Application	Fifth Further Amended Application filed 22 June 2006.	Ch 2 [76]
ARPU	Average Revenue Per User.	Ch 11 [1528]
Australis	Australis Media Ltd.	Ch 6 [492]
CEO	Chief Executive Officer.	Ch 3 [192]
CMM	Consumer and Multimedia Division of SingTel Optus.	Ch 3 [270]
Commercial Broadcasters	7 Network, Nine Network, Ten Network and their regional affiliates.	Ch 4 [346]
Consortium Respondents	Alleged parties to the Master Agreement: News, PBL, Telstra and Foxtel.	Ch 2 [91]
Cross-Claim	Second Further Amended Cross-Claim, filed 9 February 2006, by Optus against Seven.	Ch 2 [121]
EBIT	Earnings before Interest and Tax.	Ch 7 [605]
EBITDA	Earnings before Interest, Tax, Depreciation and Amortisation.	Ch 11 [1512]
Fair Process Representation	The alleged representation, made by NRL Partnership and NRLI to Seven, that C7’s bid for the NRL pay rights would be treated in a fair and impartial manner.	Ch 2 [112]
Foxtel	Used variously to refer to the Foxtel Partnership, the Foxtel partners, the Foxtel Platform or the Foxtel Service.	Ch 2 [81]
Foxtel partners	Sky Cable and Telstra Media	Ch 2 [83]
Foxtel Partnership	The partnership comprising Sky Cable and Telstra Media conducting a retail pay television business under the name ‘Foxtel’.	Ch 2 [103]
i7	i7 Ltd.	Ch 3 [192]
Liberty Sports	Liberty Sports Australia Pty Ltd.	Ch 6 [495]
McKinsey	McKinsey & Company.	Ch 11 [1562]
MCN	MultiChannel Network Pty Ltd.	Ch 3 [251]
MDS	Multipoint Distribution Service.	Ch 6 [496]
MSG	Minimum Subscriber Guarantee.	Ch 3 [267]
National Broadcasters	ABC and SBS.	Ch 4 [345]
Nine Network	Free-to-air television broadcasting network known as the Nine Network.	Ch 3 [216]
NPV	Net Present Value.	Ch 7 [594]
NRL	National Rugby League	Ch 2 [84]
NRL Competition	National Rugby League Competition.	Ch 3 [200]
NRL Partnership	The partnership between ARL and NRLI relating to the conduct of the NRL Competition.	Ch 2 [84]
NRL Pay Television Rights	The rights to broadcast NRL matches as part of a subscription television service.	Ch 13 [2109]
NRL Pay Rights Market	A market in Australia for the acquisition and supply of pay television rights to broadcast NRL matches.	Ch 12 [1804]
NRL PEC	NRL Partnership Executive Committee.	Ch 2 [111]
NRL Proposal	Fox Sports’ proposal pleaded in par 99 of the Statement of Claim.	Ch 13 [2111]
Optus Cable	Optus’ hybrid fibre coaxial cable network.	Ch 3 [262]
Optus Vision Media	Optus Vision Media Pty Ltd.	Ch 6 [506]
Pay TV Management	Pay TV Management Pty Ltd.	Ch 3 [198]
Premier Sports Australia	Premier Sports Australia Pty Ltd.	Ch 6 [495]
Pspm	Per Subscriber Per Month.	Ch 4 [359]
Respondents	All respondents to the proceedings, other than those against whom the proceedings were discontinued.	Ch 1 [5]
SBS	Special Broadcasting Service.	Ch 4 [345]
SingTel	Singapore Telecommunications Ltd.	Ch 3 [269]
SportsVision	SportsVision Australia Pty Ltd.	Ch 6 [507]
SSNIP	Small but Significant Non-transitory Increase in Price.	Ch 12 [1778]
Statement of Claim	Fifth Further Amended Statement of Claim filed 22 June 2006.	Ch 2 [76]
TAB	TAB Ltd.	Ch 12 [1857]
Tallglen	Tallglen Pty Ltd.	Ch 3 [260]
TARBS	TARBS World Television Australia Pty Ltd.	Ch 6 [561]
Telstra Cable	Telstra Multimedia’s hybrid fibre coaxial cable network.	Ch 2 [86]
Ten Network	Free-to-air television broadcasting network known as the Ten Network.	Ch 3 [280]
TNCL	The News Corporation Ltd.	Ch 3 [79]
XYZ	XYZnetworks Pty Ltd.	Ch 12 [1976]

TABLE B.3 Agreements

Abbreviation

Full name of Agreement / Date of Agreement

First Mention

AFL Copyright Agreement

‘AFL Copyright Agreement’, 15 November 1996.

Ch 8 [832]

AFL-News Licence

‘News/AFL – Pay TV and Other Rights Term Sheet’, 19 December 2000.

Ch 3 [197]

AFL-Seven Licence

Consolidated licence agreement between AFL and Seven covering both the AFL-Seven Original Licence and the AFL-Seven Licence Extension.

Ch 8 [826]

AFL-Seven Licence Extension

‘AFL Licence Extension Agreement’, 15 November 1996.

Ch 3 [182]

AFL-Seven Original Licence

‘Agreement’, 8 November 1993, relating to AFL broadcasting rights.

Ch 3 [182]

BCA

‘Broadband Co-operation Agreement’, 14 April 1997.

Ch 2 [97]

BSD Side Agreement

‘Foxtel/Australis Restructure – BSD Side Agreement’, 25 July 1997.

Ch 3 [233]

C7-Austar CSA

‘Heads of Agreement’, 5 March 1999

Ch 3 [188]

C7-Optus CSA

‘Channel Production and Supply Agreement’, 30 June 1998.

Ch 2 [115]

CWO Deed Poll

‘Optus Guarantor’, 10 September 2001.

Ch 3 [269]

Exclusivity Clause

Clause 8A of the C7-Optus CSA, inserted by the First Variation Agreement, 28 September 2001.

Ch 2 [115]

First and Last Deed

‘Deed’, 3 September 1997.

Ch 3 [197]

First Variation Agreement

‘Variation Agreement’ varying the C7-Optus CSA, 28 September 2001.

Ch 2 [115]

Fox Sports-Austar CSA

‘Fox Sports Supply to Austar – Agreement’, 3 September 1998.

Ch 3 [247]

Fox Sports-Austar Interim Licence

‘Interim Arrangement’, 13 May 1998.

Ch 6 [544]

Fox Sports-Foxtel Supply Agreement

‘Term Sheet’, 20 February 2002.

Ch 3 [246]

Fox Sports-NRL Pay Rights Agreement

‘Australian Subscription Television Rights - National Rugby League to Sports Investments Australia Pty Limited’, 13 December 2000. The name shown here is the name given to the agreement in the Pleadings, but note that this agreement is also referred to in the judgment as the NRL-Fox Sports Licence (see below)

Ch 13 [2115]

Fox Sports-NRL Pay Rights Agreement Provisions

Provisions of the Fox Sports-NRL Pay Rights Agreement pleaded in par 133 of the Statement of Claim. These provisions is also referred to in the judgment as the NRL-Fox Sports Licence Provisions (see below).

Ch 13 [2115]

Fox Sports Option Deed

‘Fox Sports Option Deed’, 3 December 1998.

Ch 3 [244]

Foxtel-Austar Term Sheet

‘Foxtel/Austar – Term Sheet’, 2 May 1998.

Ch 6 [540]

Foxtel-Optus CSA

‘Content Supply Agreement’, 5 March 2002.

Ch 2 [103]

Foxtel-Optus CSA Provisions

Provisions of the Foxtel-Optus CSA pleaded in par 222 of the Statement of Claim

C 18 [2918]

Foxtel-Optus Fox Footy Agreement

‘Fox Footy Channel Arrangement’, 19 February 2002.

Ch 11 [1675]

Foxtel-Optus Term Sheet

‘Term Sheet’, 20 February 2002.

Ch 2 [116]

Foxtel Partnership Agreement

‘Deed of Amendment and Restatement Amending and Restating the Foxtel Partnership Agreement dated 14 April 1997’, 3 December 1998.

Ch 3 [225]

Foxtel Pay TV Rights Programming Agreement

‘Foxtel Pay TV Rights Programming Agreement’, 14 May 1998.

Ch 9 [1164]

Foxtel Put

‘Pay Television – News/Foxtel’, 14 December 2000.

Ch 13 [2115]

Foxtel Put Provision

A provision of the Foxtel Put pleaded in par 105 of the Statement of Claim.

Ch 13 [2115]

Foxtel-Telstra Resale Term Sheet

‘Foxtel/Telstra Resale Term Sheet’, 20 February 2002.

Ch 11 [1694]

Implementation Deed

‘Implementation Deed’, 21 November 2002.

Ch 6 [515]

Management Agreement

‘Management Agreement’, 14 April 1997.

Ch 3 [229]

March Variation Agreement

‘Variation Agreement’, 4 March 2002.

Ch 11 [1739]

Master Agreement

An arrangement made at a teleconference on 13 December 2000, pleaded in par 100 of the Statement of Claim.

Ch 2 [84]

Master Agreement Provision

A provision of the Master Agreement pleaded in par 102 of the Statement of Claim.

Ch 2 [88]

Merger Agreement

A series of agreements between News, ARL, NRL Partnership and Optus resolving the Super League dispute, 14 May 1998.

Ch 3 [255]

News-AFL Licence

‘News/AFL – Pay TV and Other Rights Term Sheet’, 19 December 2000.

Ch 13 [2115]

News-AFL Licence Provision

A provision of the News-AFL Licence pleaded in par 111 of the Statement of Claim.

Ch 13 [2115]

News-Foxtel Licence

‘Pay Television – News/Foxtel’ 25 January 2001.

Ch 13 [2115]

News-Foxtel Licence Provision

A provision of the News-Foxtel Licence pleaded in par 117 of the Statement of Claim.

Ch 13 [2115]

News-Nine Licence

‘AFL Free To Air Term Sheet – News/Nine’, on or about 25 January 2001.

Ch 13 [2115]

News-Nine Licence Provision

A provision of the News-Nine Licence pleaded in par 121 of the Statement of Claim.

Ch 13 [2115]

News-Ten Licence

‘AFL Free To Air Term Sheet – News/Ten, on or about 25 January 2001.

Ch 13 [2115]

News-Ten Licence Provision

A provision of the News-Ten Licence pleaded in par 125 of the Statement of Claim.

Ch 13 [2115]

Nine Put

‘AFL Free to Air Term Sheet – News/Nine’ on or about 14 December 2000.

Ch 13 [2115]

Nine Put Provision

A provision of the Nine Put pleaded in par 107 of the Statement of Claim.

Ch 13 [2115]

NRL Agreements

A series of agreements annexed to the Merger Agreement, 14 May 1998.

Ch 6 [58]

NRL Bidding Agreement

‘Internet and Sponsorship Rights – Fox Sports/Foxtel’, 13 December 2000.

Ch 13 [2115]

NRL Bidding Agreement Provisions

Provisions of the NRL Bidding Agreement pleaded in par 130 of the Statement of Claim.

Ch 13 [2115]

NRL-Fox Sports Licence

‘Australian Subscription Television Rights - National Rugby League to Sports Investments Australia Pty Limited’, 13 December 2000. This agreement is also referred to in the judgment as the Fox Sports-NRL Pay Rights Agreement (see above) on the basis that it was given that name in the Pleadings.

Ch 9 [1377]

NRL-Fox Sports Licence Provisions

Provisions of the NRL-Fox Sports Licence pleaded in par 133 of the Statement of Claim. These provisions are also referred to as the Fox Sports-NRL Pay Rights Agreement Provisions (see above).

Ch 13 [2102]

NRL Free-to-Air Licence

‘NRLP Australian Free-to-Air Television Rights Licence Agreement’, 14 May 1998.

Ch 9 [1161]

NRL Naming Rights Sponsor Agreement

‘NRL Naming Rights Sponsor Agreement’, 13 December 2000

Ch 9 [1380]

NRL-News Pay Rights Agreement

‘Australian Pay Television Rights – NRL to News’ (Annexure J to the Merger Agreement), 14 May 1998.

Ch 3 [196]

NRL Partnership Agreement

‘Partnership Agreement – NRL Partnership’, 14 May 1998.

Ch 3 [253]

NRL Services Agreement

‘NRL Services Agreement’ (Annexure D to the Merger Agreement), 14 May 1998.

Ch 3 [256]

Optus-NRL Licence

The ‘Optus/NRL Licence Agreement’, 25 January 2001.

Ch 9 [1414]

Optus Partners Funding Deed

‘Optus/Partners Funding Deed’, 15 May 1998.

Ch 9 [1168]

Optus Pay TV Programming Agreement

Agreement by which News sub-licensed the NRL pay television rights to Optus Vision, 14 May 1998.

Ch 9 [1164]

Optus Vision Heads of Agreement

‘Main Heads of Agreement’, 30 December 1994.

Ch 6 [498]

Optus Vision Shareholders Agreement

Optus Vision Joint Venture: Optus Vision Shareholders Agreement’, 19 May 1995.

Ch 6 [505]

PDJV Agreement

‘Programming Distribution Joint Venture Agreement’, 14 July 1995.

Ch 6 [512]

Program Rights Agreement

‘Program Rights Agreement’, 14 April 1997.

Ch 6 [525]

Program Rights Deed

‘Program Rights Deed’, 3 December 1998.

Ch 6 [556]

Rights Sub-Licence Agreement

Pleaded in par 239 of the Statement of Claim.

Ch 13 [2116]

Rights Sub-Licence Agreement Provision

A provision of the Rights Sub-Licence Agreement pleaded in par 239 of the Statement of Claim.

Ch 13 [2116]

Second Variation Agreement

‘Variation Agreement’ amending the C7-Optus CSA, 25 January 2002.

Ch 2 [115]

Tallglen Agreement

‘Sports Programming Licence Agreement’, 19 May 1995.

Ch 6 [508]

Ten Put

‘AFL Free to Air Term Sheet – News/Ten’, 14 December 2000.

Ch 13 [2115]

Ten Put Provision

A provision of the Ten Put pleaded in par 109 of the Statement of Claim.

Ch 13 [2115]

TNC Heads of Agreement

‘Heads of Agreement between The News Corporation Limited, Telstra Corporation Limited, the Joint Venture between The News Corporation Limited and Telstra Corporation Limited, Australis Media Holdings Pty Limited and Galaxy Network International Pty Limited’, 9 March 1995.

Ch 6 [501]

Umbrella Agreement

‘Umbrella Agreement as amended and restated on 14 April 1997’, 9 March 1995, amended and restated, 14 April 1997.

Ch 3 [226]

ANNEXURE C
TABLE C.1: Witness List

Witness Days Evidence Given Dates Evidence Given Nature of Evidence Transcript

Seven

LAY WITNESSES

K Stokes
9

9–16

17–18

18

18–19

19

19

20–21

21–22

42

42

26 September 2005

26–29 September 2005
5–6 October 2005
10–11 October 2005

12, 17 October 2005

17 October 2005

17–18 October 2005

18 October 2005

18 October 2005

19–20 October 2005

20–21 October 2005

1 December 2005

1 December 2005

Examination in Chief by Mr J C Sheahan SC

Cross-Examination by Mr N C Hutley SC

Cross-Examination by Mr A J Meagher SC

Cross-Examination by Mr I G A Archibald QC

Cross-Examination by Mr J E Marshall SC

Cross-Examination by Mr A Sullivan QC

Cross-Examination by Mr T F Bathurst QC (for the AFL)

Cross-Examination by Mr A J L Bannon SC

Re-Examination by Mr J C Sheahan SC

Further Cross-Examination by Mr A J L Bannon SC

Further Re-Examination by Mr J C Sheahan SC

778–781

781–1470

1472–1569

1569–1605

1607–1669

1669–1674

1674–1733

1737–1911

1911–1976

3621–3638

3639–3640

P Gammell
23

23–27

27

27–28

28

28

28–29

29

29

26 October 2005

26–28 31 October 2005 1 November 2005

1 November 2005

1–2 November 2005

2 November 2005

2 November 2005

2–3 November 2005

3 November 2005

3 November 2005

Examination in Chief by Mr J C Sheahan SC

Cross-Examination by Mr N C Hutley SC

Cross-Examination by Mr A J Meagher SC

Cross-Examination by Mr I G A Archibald QC

Cross-Examination by Mr J E Marshall SC

Cross-Examination by Mr T F Bathurst QC

Cross-Examination by Mr A J L Bannon SC

Further Cross-Examination by Mr N C Hutley SC

Re-Examination by Mr J C Sheahan SC

1987–1991

1991–2327

2327–2356

2356–2403

2403–2420

2420–2451

2452–2509

2509–2517

2517–2531

S Wood

30

30–33

35

35

35–36

36

36–37

37

14 November 2005

14–17 November 2005

21 November 2005

21 November 2005

21–22 November 2005

22 November 2005

22–23 November 2005

23 November 2005

Examination in Chief by Mr J C Sheahan SC

Cross-Examination by Mr N C Hutley SC

Further Cross-Examination by Mr N C Hutley SC

Cross-Examination by Mr A J Meagher SC

Cross-Examination by Mr T D Castle

Cross-Examination by Mr J E Marshall SC

Cross-Examination by Mr A J L Bannon SC

Re-Examination by Mr J C Sheahan SC

2616–2618

2618–2881

2994–3000

3000–3046

3046–3092

3092–3127

3128–3170

3170–3187

S Wise
37

37–39

39

40

23 November 2005

23–24, 28 November 2005

28 November 2005

29 November 2005

Examination in Chief by Mr J C Sheahan SC

Cross-Examination by Mr A J Meagher SC

Cross-Examination by Mr A J L Bannon SC

Re-Examination by Mr J C Sheahan SC

3188–3191

3191–3346

3346–3387

3406–3409

H Anderson
40

40–41

41

42

42

42

42

29 November 2005

29–30 November 2005

30 November 2005

1 December 2005

1 December 2005

1 December 2005

1 December 2005

Examination in Chief by Mr J C Sheahan SC

Cross-Examination by Mr P R Whitford SC

Cross-Examination by Mr A J Meagher SC

Cross-Examination by Mr S W Climpson

Cross-Examination by Mr J E Marshall SC

Re-Examination by Mr J C Sheahan SC

Further Cross-Examination by Mr J E Marshall SC

3412–3417

3417–3548

3548–3565

3570–3577

3577–3583

3584–3597

3598–3601

EXPERT WITNESSES

Professor R Noll
88

88–89

89–90

90

8 May 2006

8–9 May 2006

9–10 May 2006

20 May 2006

Examination in Chief by Mr J C Sheahan SC

Cross-Examination by Mr I G A Archibald QC

Cross-Examination by Mr A J L Bannon SC

Re-Examination by Mr J C Sheahan SC

6995–7028

7028–7119

7119–7195

7195–7203

Dr R Smith
90

90–92

92

92

10 May 2006

10–11, 15 May 2006

15 May 2006

15 May 2006

Examination in Chief by Mr J C Sheahan SC

Cross-Examination by Mr N C Hutley SC

Cross-Examination by Mr A J L Bannon SC

Re-Examination by Mr J C Sheahan SC

7203–7208

7208–7388

7388–7405

7405–7406

Professor D McFadden
99

99–101

102

102

29 May 2006

29–31 May 2006

1 June 2006

1 June 2006

Examination in Chief by Mr J H Karkar QC

Cross-Examination by Mr A J Meagher SC

Cross-Examination by Mr J E Marshall SC

Cross-Examination by Mr A J L Bannon SC

7854–7871

7871–8052

8053–8079

8079–8095

K Traill* 105 7 June 2006 Affidavit of Mr K Traill, exhibiting his Expert Report dated 24 May 2005 8096

News

LAY WITNESSES

P Macourt
43

43–46

46

5 December 2005

5–8 December 2005

8 December 2005

Examination in Chief by Mr N C Hutley SC

Cross-Examination by Mr J Sumption QC

Re-Examination by Mr N C Hutley SC

3657–3659

3659–3988

3988–3993

I Philip
47

47–50

50

12 December 2005

12–15 December 2005

15 December 2005

Examination in Chief by Mr N C Hutley SC

Cross-Examination by Mr J Sumption QC

Re-Examination by Mr N C Hutley SC

3995–3996

3996–4246

4246–4247

T Mockridge
51

51–52

6 February 2006

6–7 February 2006

Examination in Chief by Mr N C Hutley SC

Cross-Examination by Mr J C Sheahan SC

4296–4297

4297–4458

K Williams
53

53–54

54

8 February 2006

8–9 February 2006

9 February 2006

Examination in Chief by Mr N C Hutley SC

Cross-Examination by Mr J C Sheahan SC

Re-Examination by Mr N C Hutley SC

4463–4464

4464–4600

4600–4611

J Marquard
54

54–55

55

9 February 2006

9, 13 February 2006

13 February 2006

Examination in Chief by Mr N C Hutley SC

Cross-Examination by Mr J C Sheahan SC

Re-Examination by Mr N C Hutley SC

4611–4612

4612–4687

4687–4689

D Malone
56

56

56–57

57

14 February 2006

14 February 2006

14–15 February 2006

15 February 2006

Examination in Chief by Mr N C Hutley SC

Cross-Examination by Mr J C Sheahan SC

Cross-Examination by Mr J A Halley

Re-Examination by Mr N C Hutley SC

4714–4715

4715–4772

4777–4822

4822–4834

G Burns
57

57–58

58

15 February 2006

15–16 February 2006

16 February 2006

Examination in Chief by Mr P R Whitford SC

Cross-Examination by Mr J A Halley

Re-Examination by Mr P R Whitford SC

4834–4835

4835–4880

4881–4883

P Campbell
58

58

59

16 February 2006

16 February 2006

20 February

Examination in Chief by Mr N C Hutley SC

Cross-Examination by Mr J C Sheahan SC

Cross-Examination by Mr J A Halley

4887–4890

4890–4967

4970–4997

P Delany
59

59

59

20 February 2006

20 February 2006

20 February 2006

Examination in Chief by Mr P R Whitford SC

Cross-Examination by Mr J A Halley

Re-Examination by Mr P R Whitford SC

5003–5004

5004–5067

5067–5069

A Boyd
60

60

21 February 2006

21 February 2006

Examination in Chief by Mr P R Whitford SC

Cross-Examination by Mr J C Sheahan SC

5081–5082

5082–5162

M Medcraf
61

61

22 February 2006

22 February 2006

Examination in Chief by Mr P R Whitford SC

Cross-Examination by Mr J A Halley

5166–5167

5167–5193

S Sos
61

61

22 February 2006

22 February 2006

Examination in Chief by Mr P R Whitford SC

Cross-Examination by Mr J A Halley

5194–5195

5195–5211

A Oakes
62

62

62

23 February 2006

23 February 2006

23 February 2006

Examination in Chief by Mr P R Whitford SC

Cross-Examination by Mr J A Halley

Re-Examination by Mr P R Whitford SC

5216

5216–5237

5237

R Crowley
64

64

06 March 2006

06 March 2006

Examination in Chief by Mr P R Whitford SC

Cross-Examination by Mr J A Halley

5299–5300

5300–5335

I Frykberg 65
07 March 2006

07 March 2006

07 March 2006

Examination in Chief by Mr P R Whitford SC

Cross-Examination by Mr J C Sheahan SC

Re-Examination by Mr P R Whitford SC

5337–5338

5338–5397

5397–5398

G Checkley* 105 7 June 2006 Affidavit of Mr G Checkley, exhibiting his Witness Statement dated 22 October 2004 8260

M Love*
105
7 June 2006 Affidavit of Mr M Love, exhibiting his Witness Statement dated 10 May 2005 8260

G Maine* 105 7 June 2006 Affidavit of Mr G Maine, exhibiting his Witness Statement dated 27 September 2004 8260

M Ruberto* 105 7 June 2006 Affidavit of Mr M Ruberto, exhibiting his Witness Statement dated 15 October 2004 8260

S Ward* 105 7 June 2006 Affidavit of Mr S Ward 8261

EXPERT WITNESSES

Professor F Fisher
93

93–95

95

16 May 2005

16–18 May 2005

18 May 2005

Examination in Chief by Mr N C Hutley SC

Cross-Examination by Mr J C Sheahan SC

Re-Examination by Mr N C Hutley SC

7433–7443

7443–7618

7618–7619

Professor P Williams
95

95–96

18 May 2005

18, 22 May 2005

Examination in Chief by Mr N C Hutley SC

Cross-Examination by Mr J C Sheahan SC

7619–7623

7624–7747

T Potter

103

103–104

104

5 June 2006

5–6 June 2006

6 June 2006

Examination in Chief by Mr A J Meagher SC

Cross-Examination by Mr J A Halley

Re-Examination by Mr A J Meagher SC

8156–8160

8160–8221

8221–8222

W McDonald 105 7 June 2006
Examination in Chief by Mr N C Hutley SC

Cross-Examination by Mr J C Sheahan SC

8229–8230

8230–8249

A Daniel 105
7 June 2006

7 June 2006

7 June 2006

Examination in Chief by Mr N C Hutley SC

Cross-Examination by Mr J C Sheahan SC

Re-Examination by Mr N C Hutley SC

8250–8251

8251–8259

8259–8260

Telstra

LAY WITNESSES

Z Switkowski
66

66–69

69

20 March 2006

20–23 March 2006

23 March 2006

Examination in Chief by Mr I G A Archibald QC

Cross-Examination by Mr J C Sheahan SC

Re-Examination by Mr I G A Archibald QC

5409–5411

5411–5569, 5618–5693

5692–5695

B Akhurst
68

68–70, 72

22 March 2006

22–23, 27, 29 March 2006

Examination in Chief by Mr I G A Archibald QC

Cross-Examination by Mr J C Sheahan SC

5570–5572

5572–5617, 5696–5825, 5921–6022

G Sutton
71

71

71

28 March 2006

28 March 2006

28 March 2006

Examination in Chief by Mr I G A Archibald QC

Cross-Examination by Mr J C Sheahan SC

Re-Examination by Mr I G A Archibald QC

5875–5876

5876–5913

5913

PBL

EXPERT WITNESSES

Professor G Hay 97
23 May 2006

23 May 2006

Examination in Chief by Mr A J Meagher SC

Cross-Examination by Mr J C Sheahan SC

7749–7751

7751–7789

Professor S Gray 103
05 June 2006

05 June 2006

Examination in Chief by Mr A J Meagher SC

Cross-Examination by Mr J A Halley

8104–8106

8106–8136

Optus

LAY WITNESSES

C Keely
74

74–75

75

3 April 2006

3–4 April 2006

4 April 2006

Examination in Chief by Mr A J L Bannon SC

Cross-Examination by Mr J H Karkar QC

Re-Examination by Mr A J L Bannon SC

6106–6107

6107–6225

6225–6242

Lee Hsien Yang
76

76–77

77

5 April 2006

5–6 April 2006

6 April 2006

Examination in Chief by Mr A J L Bannon SC

Cross-Examination by Mr J H Karkar QC

Re-Examination by Mr A J L Bannon SC

6247–6249

6249–6384

6384–6393

M Ebeid
78

78–79

79

10 April 2006

10–11 April 2006

11 April 2006

Examination in Chief by Mr A J L Bannon SC

Cross-Examination by Mr J H Karkar QC

Re-Examination by Mr A J L Bannon SC

6396–6397

6397–6490

6490–6491

P Fletcher
79

79–80

11 April 2006

11–12 April 2006

Examination in Chief by Mr A J L Bannon SC

Cross-Examination by Mr J H Karkar QC

6492

6492–6596

C Anderson
81

81–83

83

26 April 2006

26–28 April 2006

28 April 2006

Examination in Chief by Mr A J L Bannon SC

Cross-Examination by Mr J H Karkar QC

Re-Examination by Mr A J L Bannon SC

6604

6605–6770

6771–6772

* Indicates a witness whose Statement was entered into evidence, but who was not cross-examined.

I certify that the preceding 3404 numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.
Associate:
Dated: 27 July 2007

Counsel for the First and Second Applicants/First and Second Cross-Respondents (Seven Parties): Mr J Sumption QC, Mr J H Karkar QC, Mr J C Sheahan SC, Mr J A Halley, Mr C A Moore, Ms K Rees, Mr M J Darke, Mr S Moran and Ms R Doland

Solicitors for the First and Second Applicants (Seven Parties): Freehills

Counsel for the First, Second, Thirteenth, Nineteenth and Twentieth Respondents (News Parties): Mr N C Hutley SC, Mr P R Whitford SC, Mr P J Brereton, Mr M Pesman and Dr C Mantziaris

Solicitors for First, Second, Thirteenth, Nineteenth and Twentieth Respondents (News Parties): Allens Arthur Robinson

Counsel for the Fourth and Fifteenth Respondents (Foxtel Parties) Mr N C Hutley SC, Mr P R Whitford SC, Mr P J Brereton, Mr M Pesman and Dr C Mantziaris

Solicitors for the Fourth and Fifteenth Respondents (Foxtel Parties) Allens Arthur Robinson

Counsel for the Ninth Respondent (Fox Sports) Mr N C Hutley SC, Mr P R Whitford SC, Mr P J Brereton, Mr M Pesman and Dr C Mantziaris

Solicitors for the Ninth Respondent (Fox Sports) Allens Arthur Robinson

Counsel for the Third, Fifth and Sixth Respondents (Telstra Parties): Mr I G A Archibald QC, Mr T D Castle and Mr I R Pike

Solicitors for the Third, Fifth and Sixth Respondents (Telstra Parties): Mallesons Stephen Jaques

Counsel for the Seventh, Eighth and Twenty-First Respondents (PBL Parties): Mr A J Meagher SC, Mr A J Payne and Mr D B Studdy

Solicitors for the Seventh, Eighth and Twenty-First Respondents (PBL Parties): Gilbert + Tobin Lawyers

Counsel for the Tenth Respondent (Ten) (until 6 February 2006): Mr J R J Lockhart

Solicitors for the Tenth Respondent (Ten) (until 6 February 2006): Blake Dawson Waldron Lawyers

Counsel for the Eleventh Respondent (AFL) (until 5 December 2005): Mr T F Bathurst QC and Mr M Connock

Solicitors for the Eleventh Respondent (AFL) (until 5 December 2005): Browne & Co, Solicitors & Consultants

Counsel for the Twelfth Respondent (ARL): Mr A Sullivan QC and Mr S W Climpson

Solicitors for the Twelfth Respondent (ARL): Sparke Helmore Lawyers

Counsel for the Fourteenth Respondent (NRL Ltd): Mr J E Marshall SC

Solicitors for the Fourteenth Respondent (NRL Ltd): Kennedys

Counsel for the Sixteenth and Twenty-Second Respondents/First and Second Cross-Claimants (Optus Parties): Mr A Bannon SC, Mr M J Leeming SC and Mr J C Hewitt

Solicitors for the Sixteenth and Twenty-Second Respondents/First and Second Cross-Claimants (Optus Parties): Chang Pistilli & Simmons Corporate Lawyers

Solicitors for the Seventeenth and Eighteenth Respondent (Austar Parties) TressCox Lawyers

Dates of Hearing:
12–15, 19–22, 26–29 September 2005;
5–6, 10–12, 17–21, 26–28, 31 October 2005;
1–3, 14–18, 21–24, 28–30 November 2005;
1, 5–8, 12–15 December 2005;
6–9, 13–16, 20–23, 28 February 2006;
6–7, 20–23, 27–30 March 2006;
3–6, 10–12, 26–28 April 2006;
1, 3–5, 8–11, 15–18, 22–23, 26, 29–31 May 2006;
1, 5–7, 15, 20 June 2006;
4, 18–21, 25–29 September 2007;
3–5 October 2006;

Date of Judgment: 27 July 2007

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1223 of 2002

BETWEEN:	SEVEN NETWORK LIMITED First Applicant C7 PTY LIMITED Second Applicant
AND:	NEWS LIMITED First Respondent SKY CABLE PTY LIMITED Second Respondent TELSTRA MEDIA PTY LIMITED Third Respondent FOXTEL MANAGEMENT PTY LIMITED Fourth Respondent TELSTRA CORPORATION LIMITED Fifth Respondent TELSTRA MULTIMEDIA PTY LIMITED Sixth Respondent PUBLISHING AND BROADCASTING LIMITED Seventh Respondent NINE NETWORK AUSTRALIA PTY LIMITED Eighth Respondent PREMIER MEDIA GROUP PTY LIMITED Ninth Respondent AUSTRALIAN RUGBY FOOTBALL LEAGUE LIMITED Twelfth Respondent NATIONAL RUGBY LEAGUE INVESTMENTS PTY LIMITED Thirteenth Respondent NATIONAL RUGBY LEAGUE LIMITED Fourteenth Respondent FOXTEL CABLE TELEVISION PTY LIMITED Fifteenth Respondent OPTUS VISION PTY LIMITED Sixteenth Respondent AUSTAR UNITED COMMUNICATIONS LIMITED Seventeenth Respondent AUSTAR ENTERTAINMENT PTY LIMITED Eighteenth Respondent IAN HUNTLY PHILIP Nineteenth Respondent NEWS PAY TV PTY LIMITED Twentieth Respondent PBL PAY TV PTY LIMITED Twenty-First Respondent SINGTEL OPTUS PTY LIMITED Twenty-Second Respondent OPTUS VISION PTY LTD First Cross Claimant SINGTEL OPTUS PTY LIMITED Second Cross Claimant SEVEN NETWORK LIMITED First Cross Respondent C7 PTY LIMITED Second Cross Respondent
JUDGE:	SACKVILLE J
DATE OF ORDER:	27 JULY 2007
WHERE MADE:	SYDNEY

Abbreviation	Full Name of Party	First reference
AFL	Australian Football League Ltd (formerly the Eleventh Respondent)	Ch 2 [83]
ARL	Australian Rugby Football League Ltd (Twelfth Respondent)	Ch 2 [110]
Austar	Austar Entertainment Pty Ltd and/or Austar United Communications Ltd	Ch 2 [85]
Austar Entertainment	Austar Entertainment Pty Ltd (Eighteenth Respondent)	Ch 2 [85]
Austar United	Austar United Communications Ltd (Seventeenth Respondent)	Ch 2 [85]
C7	C7 Pty Ltd (Second Applicant; Second Cross-Respondent)	Ch 1 [4]
Foxtel Cable	Foxtel Cable Television Pty Ltd (Fifteenth Respondent)	Ch 2 [150]
Foxtel Management	Foxtel Management Pty Ltd (Fourth Respondent)	Ch 2 [104]
Fox Sports	Premier Media Group Pty Ltd (Ninth Respondent)	Ch 3 [242]
News	News Ltd (First Respondent)	Ch 2 [79]
News Pay TV	News Pay TV Pty Ltd (Twentieth Respondent)	Ch 3 [195]
Nine	Nine Network Australia Pty Ltd (Eighth Respondent)	Ch 2 [80]
NRL	National Rugby League	Ch 2 [84]
NRLI	National Rugby League Investments Pty Ltd (Thirteenth Respondent)	Ch 2 [110]
NRL Ltd	National Rugby League Ltd (Fourteenth Respondent)	Ch 3 [203]
Optus	Optus Vision Pty Ltd and/or SingTel Optus Pty Ltd	Ch 1 [14]
Optus Vision	Optus Vision Pty Ltd (Sixteenth Respondent; First Cross-Claimant)	Ch 1 [14]
PBL	Publishing and Broadcasting Ltd (Seventh Respondent)	Ch 2 [79]
PBL Pay TV	PBL Pay TV Pty Ltd (Twenty-First Respondent)	Ch 3 [215]
Mr Philip	Ian Huntly Philip (Nineteenth Respondent)	Ch 2 [111]
Seven	Seven Network Ltd and/or C7 Pty Ltd	Ch 1 [4]
Seven Network	Seven Network Ltd (First Applicant; First Cross-Respondent)	Ch 1 [10]
SingTel Optus	SingTel Optus Pty Ltd (Twenty-Second Respondent; Second Cross-Claimant)	Ch 1 [14]
Sky Cable	Sky Cable Pty Ltd (Second Respondent)	Ch 2 [80]
Ten	Network Ten Pty Ltd (formerly the Tenth Respondent)	Ch 2 [84]
Telstra	Telstra Corporation Ltd (Fifth Respondent)	Ch 2 [79]
Telstra Media	Telstra Media Pty Ltd (Third Respondent)	Ch 2 [80]
Telstra Multimedia	Telstra Multimedia Pty Ltd (Sixth Respondent)	Ch 2 [80]

Abbreviation	Full name of Agreement / Date of Agreement	First Mention
AFL Copyright Agreement	‘AFL Copyright Agreement’, 15 November 1996.	Ch 8 [832]
AFL-News Licence	‘News/AFL – Pay TV and Other Rights Term Sheet’, 19 December 2000.	Ch 3 [197]
AFL-Seven Licence	Consolidated licence agreement between AFL and Seven covering both the AFL-Seven Original Licence and the AFL-Seven Licence Extension.	Ch 8 [826]
AFL-Seven Licence Extension	‘AFL Licence Extension Agreement’, 15 November 1996.	Ch 3 [182]
AFL-Seven Original Licence	‘Agreement’, 8 November 1993, relating to AFL broadcasting rights.	Ch 3 [182]
BCA	‘Broadband Co-operation Agreement’, 14 April 1997.	Ch 2 [97]
BSD Side Agreement	‘Foxtel/Australis Restructure – BSD Side Agreement’, 25 July 1997.	Ch 3 [233]
C7-Austar CSA	‘Heads of Agreement’, 5 March 1999	Ch 3 [188]
C7-Optus CSA	‘Channel Production and Supply Agreement’, 30 June 1998.	Ch 2 [115]
CWO Deed Poll	‘Optus Guarantor’, 10 September 2001.	Ch 3 [269]
Exclusivity Clause	Clause 8A of the C7-Optus CSA, inserted by the First Variation Agreement, 28 September 2001.	Ch 2 [115]
First and Last Deed	‘Deed’, 3 September 1997.	Ch 3 [197]
First Variation Agreement	‘Variation Agreement’ varying the C7-Optus CSA, 28 September 2001.	Ch 2 [115]
Fox Sports-Austar CSA	‘Fox Sports Supply to Austar – Agreement’, 3 September 1998.	Ch 3 [247]
Fox Sports-Austar Interim Licence	‘Interim Arrangement’, 13 May 1998.	Ch 6 [544]
Fox Sports-Foxtel Supply Agreement	‘Term Sheet’, 20 February 2002.	Ch 3 [246]
Fox Sports-NRL Pay Rights Agreement	‘Australian Subscription Television Rights - National Rugby League to Sports Investments Australia Pty Limited’, 13 December 2000. The name shown here is the name given to the agreement in the Pleadings, but note that this agreement is also referred to in the judgment as the NRL-Fox Sports Licence (see below)	Ch 13 [2115]
Fox Sports-NRL Pay Rights Agreement Provisions	Provisions of the Fox Sports-NRL Pay Rights Agreement pleaded in par 133 of the Statement of Claim. These provisions is also referred to in the judgment as the NRL-Fox Sports Licence Provisions (see below).	Ch 13 [2115]
Fox Sports Option Deed	‘Fox Sports Option Deed’, 3 December 1998.	Ch 3 [244]
Foxtel-Austar Term Sheet	‘Foxtel/Austar – Term Sheet’, 2 May 1998.	Ch 6 [540]
Foxtel-Optus CSA	‘Content Supply Agreement’, 5 March 2002.	Ch 2 [103]
Foxtel-Optus CSA Provisions	Provisions of the Foxtel-Optus CSA pleaded in par 222 of the Statement of Claim	C 18 [2918]
Foxtel-Optus Fox Footy Agreement	‘Fox Footy Channel Arrangement’, 19 February 2002.	Ch 11 [1675]
Foxtel-Optus Term Sheet	‘Term Sheet’, 20 February 2002.	Ch 2 [116]
Foxtel Partnership Agreement	‘Deed of Amendment and Restatement Amending and Restating the Foxtel Partnership Agreement dated 14 April 1997’, 3 December 1998.	Ch 3 [225]
Foxtel Pay TV Rights Programming Agreement	‘Foxtel Pay TV Rights Programming Agreement’, 14 May 1998.	Ch 9 [1164]
Foxtel Put	‘Pay Television – News/Foxtel’, 14 December 2000.	Ch 13 [2115]
Foxtel Put Provision	A provision of the Foxtel Put pleaded in par 105 of the Statement of Claim.	Ch 13 [2115]
Foxtel-Telstra Resale Term Sheet	‘Foxtel/Telstra Resale Term Sheet’, 20 February 2002.	Ch 11 [1694]
Implementation Deed	‘Implementation Deed’, 21 November 2002.	Ch 6 [515]
Management Agreement	‘Management Agreement’, 14 April 1997.	Ch 3 [229]
March Variation Agreement	‘Variation Agreement’, 4 March 2002.	Ch 11 [1739]
Master Agreement	An arrangement made at a teleconference on 13 December 2000, pleaded in par 100 of the Statement of Claim.	Ch 2 [84]
Master Agreement Provision	A provision of the Master Agreement pleaded in par 102 of the Statement of Claim.	Ch 2 [88]
Merger Agreement	A series of agreements between News, ARL, NRL Partnership and Optus resolving the Super League dispute, 14 May 1998.	Ch 3 [255]
News-AFL Licence	‘News/AFL – Pay TV and Other Rights Term Sheet’, 19 December 2000.	Ch 13 [2115]
News-AFL Licence Provision	A provision of the News-AFL Licence pleaded in par 111 of the Statement of Claim.	Ch 13 [2115]
News-Foxtel Licence	‘Pay Television – News/Foxtel’ 25 January 2001.	Ch 13 [2115]
News-Foxtel Licence Provision	A provision of the News-Foxtel Licence pleaded in par 117 of the Statement of Claim.	Ch 13 [2115]
News-Nine Licence	‘AFL Free To Air Term Sheet – News/Nine’, on or about 25 January 2001.	Ch 13 [2115]
News-Nine Licence Provision	A provision of the News-Nine Licence pleaded in par 121 of the Statement of Claim.	Ch 13 [2115]
News-Ten Licence	‘AFL Free To Air Term Sheet – News/Ten, on or about 25 January 2001.	Ch 13 [2115]
News-Ten Licence Provision	A provision of the News-Ten Licence pleaded in par 125 of the Statement of Claim.	Ch 13 [2115]
Nine Put	‘AFL Free to Air Term Sheet – News/Nine’ on or about 14 December 2000.	Ch 13 [2115]
Nine Put Provision	A provision of the Nine Put pleaded in par 107 of the Statement of Claim.	Ch 13 [2115]
NRL Agreements	A series of agreements annexed to the Merger Agreement, 14 May 1998.	Ch 6 [58]
NRL Bidding Agreement	‘Internet and Sponsorship Rights – Fox Sports/Foxtel’, 13 December 2000.	Ch 13 [2115]
NRL Bidding Agreement Provisions	Provisions of the NRL Bidding Agreement pleaded in par 130 of the Statement of Claim.	Ch 13 [2115]
NRL-Fox Sports Licence	‘Australian Subscription Television Rights - National Rugby League to Sports Investments Australia Pty Limited’, 13 December 2000. This agreement is also referred to in the judgment as the Fox Sports-NRL Pay Rights Agreement (see above) on the basis that it was given that name in the Pleadings.	Ch 9 [1377]
NRL-Fox Sports Licence Provisions	Provisions of the NRL-Fox Sports Licence pleaded in par 133 of the Statement of Claim. These provisions are also referred to as the Fox Sports-NRL Pay Rights Agreement Provisions (see above).	Ch 13 [2102]
NRL Free-to-Air Licence	‘NRLP Australian Free-to-Air Television Rights Licence Agreement’, 14 May 1998.	Ch 9 [1161]
NRL Naming Rights Sponsor Agreement	‘NRL Naming Rights Sponsor Agreement’, 13 December 2000	Ch 9 [1380]
NRL-News Pay Rights Agreement	‘Australian Pay Television Rights – NRL to News’ (Annexure J to the Merger Agreement), 14 May 1998.	Ch 3 [196]
NRL Partnership Agreement	‘Partnership Agreement – NRL Partnership’, 14 May 1998.	Ch 3 [253]
NRL Services Agreement	‘NRL Services Agreement’ (Annexure D to the Merger Agreement), 14 May 1998.	Ch 3 [256]
Optus-NRL Licence	The ‘Optus/NRL Licence Agreement’, 25 January 2001.	Ch 9 [1414]
Optus Partners Funding Deed	‘Optus/Partners Funding Deed’, 15 May 1998.	Ch 9 [1168]
Optus Pay TV Programming Agreement	Agreement by which News sub-licensed the NRL pay television rights to Optus Vision, 14 May 1998.	Ch 9 [1164]
Optus Vision Heads of Agreement	‘Main Heads of Agreement’, 30 December 1994.	Ch 6 [498]
Optus Vision Shareholders Agreement	Optus Vision Joint Venture: Optus Vision Shareholders Agreement’, 19 May 1995.	Ch 6 [505]
PDJV Agreement	‘Programming Distribution Joint Venture Agreement’, 14 July 1995.	Ch 6 [512]
Program Rights Agreement	‘Program Rights Agreement’, 14 April 1997.	Ch 6 [525]
Program Rights Deed	‘Program Rights Deed’, 3 December 1998.	Ch 6 [556]
Rights Sub-Licence Agreement	Pleaded in par 239 of the Statement of Claim.	Ch 13 [2116]
Rights Sub-Licence Agreement Provision	A provision of the Rights Sub-Licence Agreement pleaded in par 239 of the Statement of Claim.	Ch 13 [2116]
Second Variation Agreement	‘Variation Agreement’ amending the C7-Optus CSA, 25 January 2002.	Ch 2 [115]
Tallglen Agreement	‘Sports Programming Licence Agreement’, 19 May 1995.	Ch 6 [508]
Ten Put	‘AFL Free to Air Term Sheet – News/Ten’, 14 December 2000.	Ch 13 [2115]
Ten Put Provision	A provision of the Ten Put pleaded in par 109 of the Statement of Claim.	Ch 13 [2115]
TNC Heads of Agreement	‘Heads of Agreement between The News Corporation Limited, Telstra Corporation Limited, the Joint Venture between The News Corporation Limited and Telstra Corporation Limited, Australis Media Holdings Pty Limited and Galaxy Network International Pty Limited’, 9 March 1995.	Ch 6 [501]
Umbrella Agreement	‘Umbrella Agreement as amended and restated on 14 April 1997’, 9 March 1995, amended and restated, 14 April 1997.	Ch 3 [226]

Counsel for the First and Second Applicants/First and Second Cross-Respondents (Seven Parties):	Mr J Sumption QC, Mr J H Karkar QC, Mr J C Sheahan SC, Mr J A Halley, Mr C A Moore, Ms K Rees, Mr M J Darke, Mr S Moran and Ms R Doland
Solicitors for the First and Second Applicants (Seven Parties):	Freehills
Counsel for the First, Second, Thirteenth, Nineteenth and Twentieth Respondents (News Parties):	Mr N C Hutley SC, Mr P R Whitford SC, Mr P J Brereton, Mr M Pesman and Dr C Mantziaris
Solicitors for First, Second, Thirteenth, Nineteenth and Twentieth Respondents (News Parties):	Allens Arthur Robinson
Counsel for the Fourth and Fifteenth Respondents (Foxtel Parties)	Mr N C Hutley SC, Mr P R Whitford SC, Mr P J Brereton, Mr M Pesman and Dr C Mantziaris
Solicitors for the Fourth and Fifteenth Respondents (Foxtel Parties)	Allens Arthur Robinson
Counsel for the Ninth Respondent (Fox Sports)	Mr N C Hutley SC, Mr P R Whitford SC, Mr P J Brereton, Mr M Pesman and Dr C Mantziaris
Solicitors for the Ninth Respondent (Fox Sports)	Allens Arthur Robinson
Counsel for the Third, Fifth and Sixth Respondents (Telstra Parties):	Mr I G A Archibald QC, Mr T D Castle and Mr I R Pike
Solicitors for the Third, Fifth and Sixth Respondents (Telstra Parties):	Mallesons Stephen Jaques
Counsel for the Seventh, Eighth and Twenty-First Respondents (PBL Parties):	Mr A J Meagher SC, Mr A J Payne and Mr D B Studdy
Solicitors for the Seventh, Eighth and Twenty-First Respondents (PBL Parties):	Gilbert + Tobin Lawyers
Counsel for the Tenth Respondent (Ten) (until 6 February 2006):	Mr J R J Lockhart
Solicitors for the Tenth Respondent (Ten) (until 6 February 2006):	Blake Dawson Waldron Lawyers
Counsel for the Eleventh Respondent (AFL) (until 5 December 2005):	Mr T F Bathurst QC and Mr M Connock
Solicitors for the Eleventh Respondent (AFL) (until 5 December 2005):	Browne & Co, Solicitors & Consultants
Counsel for the Twelfth Respondent (ARL):	Mr A Sullivan QC and Mr S W Climpson
Solicitors for the Twelfth Respondent (ARL):	Sparke Helmore Lawyers
Counsel for the Fourteenth Respondent (NRL Ltd):	Mr J E Marshall SC
Solicitors for the Fourteenth Respondent (NRL Ltd):	Kennedys
Counsel for the Sixteenth and Twenty-Second Respondents/First and Second Cross-Claimants (Optus Parties):	Mr A Bannon SC, Mr M J Leeming SC and Mr J C Hewitt
Solicitors for the Sixteenth and Twenty-Second Respondents/First and Second Cross-Claimants (Optus Parties):	Chang Pistilli & Simmons Corporate Lawyers
Solicitors for the Seventeenth and Eighteenth Respondent (Austar Parties)	TressCox Lawyers
Dates of Hearing:	12–15, 19–22, 26–29 September 2005; 5–6, 10–12, 17–21, 26–28, 31 October 2005; 1–3, 14–18, 21–24, 28–30 November 2005; 1, 5–8, 12–15 December 2005; 6–9, 13–16, 20–23, 28 February 2006; 6–7, 20–23, 27–30 March 2006; 3–6, 10–12, 26–28 April 2006; 1, 3–5, 8–11, 15–18, 22–23, 26, 29–31 May 2006; 1, 5–7, 15, 20 June 2006; 4, 18–21, 25–29 September 2007; 3–5 October 2006;
Date of Judgment:	27 July 2007