FEDERAL COURT OF AUSTRALIA
Seven Network Limited v News Limited [2005] FCA 1551
LEGAL PROFESSIONAL PRIVILEGE – requisite degree of independence for an in-house counsel
Seven Network Limited & Anor v News Limited & Ors [2005] FCA 142
Seven Network Limited v News Limited [2005] FCA 864
Seven Network Limited v News Limited [2005] FCA 915
Seven Network Limited v News Limited [2005] FCA 1342
Ashfield Municipal Council v Roads and Traffic Authority of NSW [2004] NSWSC 917
Chen v City Convenience Leasing Pty Limited [2005] NSWCA 297
SEVEN NETWORK LIMITED (ACN 052 816 789) & ANOR v NEWS LIMITED (ACN 007 871 178) & ORS
NSD 1223 OF 2002
GRAHAM J
3 NOVEMBER 2005
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD1223 OF 2002
BETWEEN:
SEVEN NETWORK LTD ACN 052 816 789
& ANOR
APPLICANTSAND:
NEWS LTD ACN 007 871 178 & ORS
RESPONDENTS
JUDGE:
GRAHAM J
DATE OF ORDER:
3 NOVEMBER 2005
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The prayer for relief contained in paragraph 1 of the Third, Fifth and Sixth Respondents’ Amended Notice of Motion filed 21 October 2005 be dismissed.
2.The parties file and serve short written submissions on the costs to date of the Notice of Motion filed 17 October 2005 and of the Amended Notice of Motion filed 21 October 2005 by 4 pm on 9 November 2005.
3.The Amended Notice of Motion be stood over for directions in respect of the prayer for relief in paragraph 2 to 11 November 2005 at 9.15 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
NSD1223 OF 2002
BETWEEN:
SEVEN NETWORK LTD ACN 052 816 789 & ANOR
APPLICANTS
AND:
NEWS LTD ACN 007 871 178 & ORS
RESPONDENTS
JUDGE:
GRAHAM J
DATE:
3 NOVEMBER 2005
PLACE:
SYDNEY
REASONS FOR JUDGMENT
Proceedings NSD 1223 of 2002, known as Seven Network Limited & Anor v News Limited & Ors arise out of bids for television broadcast rights in respect of two codes of football, one administered by the Australian Football League and the other by the National Rugby League. There are numerous parties to the proceedings and needless to say, the litigation is complex.
The hearing of the main proceedings commenced before Justice Sackville on Monday 12 September 2005.
By Notice of Motion filed in Court on 17 October 2005 the Third, Fifth and Sixth Respondents (collectively referred to as the “Telstra Respondents”) sought the production by the Applicants of, inter alia, nine documents identified by their respective discovery numbers in Schedule 1 to the Motion.
On the same day, namely 17 October 2005, the solicitors for the Applicants, Freehills, wrote to the solicitors for the Telstra Respondents stating:
“We do not accept that the documents the subject of your motion are not the…
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- Case
- [2005] FCA 1551
- Decision Date
CaseChat Overview and Summary
The court considered the nature of the documents, the circumstances under which they were created, and the principles of confidentiality and privilege in legal communications. The court found that the documents were indeed confidential and privileged, as they contained strategic business information and legal advice. The court emphasised the importance of maintaining the confidentiality of such communications to protect the integrity of the legal process and the client's interests.
Consequently, the court dismissed the prayer for relief in the Amended Notice of Motion filed by the respondents. The court ordered that the parties file and serve short written submissions on the costs incurred by the Notice of Motion and the Amended Notice of Motion by a specified date. Additionally, the Amended Notice of Motion was stood over for directions concerning the relief sought in paragraph 2, to be addressed at a later date.
Orders
Orders of the court
1. The prayer for relief contained in paragraph 1 of the Third, Fifth and Sixth Respondents’ Amended Notice of Motion filed 21 October 2005 be dismissed.
2. The parties file and serve short written submissions on the costs to date of the Notice of Motion filed 17 October 2005 and of the Amended Notice of Motion filed 21 October 2005 by 4 pm on 9 November 2005.
3. The Amended Notice of Motion be stood over for directions in respect of the prayer for relief in paragraph 2 to 11 November 2005 at 9.15 am.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Under the heading “ACCC ARBITRATION” the following appeared:-“As noted in the past Updates to the Board, the ACCC has issued an interim determination pursuant to the Trade Practices Act which entitles C7 to access 2 channels on the Cable, capable of being received by Foxtel cable subscribers on their set-top units (‘STU’)…As noted in the August update, the ACCC has commenced the process to move to the Final Determination which would see C7 having access to the Telstra cable and Foxtel STU’s under a longer time frame …Accordingly, C7 has started preparing the various submissions for the Final Determination, and the knowledge acquired as part of the interim determination process, especially from the Technical Working Committee, will be invaluable to the tailoring the timeline requirements for access.It is not expected that the Final Determination will be issued before April 2002.The continued breakdown in dialogue with Telstra and Foxtel reinforces the statement made in the August update that C7’s position with respect to the Interim Determination has not improved.…” Under the heading “PLATFORM ACCESS GENERALLY” the following appeared:-“As noted in previous Updates to the board, in parallel with Seven’s current access dispute with Foxtel and Telstra, Seven is escalating its campaign with respect to non-declared services such as digital cable and satellite.…Seven has also provided the Government and the Labour (sic) Party with copies of this submission [a submission by Seven that any definition of market should take into account all forms of media including the telecommunication industry when determining what is the appropriate market], with a concerted effort to lobby both siddes (sic) of Parliament during this election campaign on Seven’s concerns regarding the access regime and the concentration of market power within the convergent media market.” Yet another “Board Update” entitled “C7 – Foxtel/Telstra Access Dispute” was prepared by Mr Jarman in November 2001 and submitted to the Board by Steve Wise. On 23 February 2002 Mr Jarman sent Mr Wise an email under the heading “C7 and Access” to which he attached a:“withdrawal option paper which Freehills prepared for me a couple of weeks ago. …Short term it is clear that the cost of just maintaining the access case is prohibitive. In addition, C7 will be in a wind down mode i.e. there will be no sustainable business which can jump straight on to the Telstra cable once access is finalised. We cannot just escrow C7 until that time – this again is too costly. Further, there is no logic to the escrow given that the timing of when access will be secured in (sic) uncertain.…” A further “Board Update” was prepared by Mr Jarman for submission by Mr Wise dated May 2002 entitled “C7 – Foxtel/Optus/Telstra Various Matters”. Again in August 2002 a further “Board Update” was prepared by Mr Jarman for Mr Wise entitled “C7 – Foxtel/Optus/Telstra various matters”. Each of the May 2002 and August 2002 updates contained the standard claim that the paper was a “confidential and privileged document”.