Seven Network Ltd v News Ltd - [2005] FCA 864

FEDERAL COURT OF AUSTRALIA
Seven Network Limited v News Limited [2005] FCA 864
CLIENT LEGAL PRIVILEGE – objection taken by a party to production of part of a document covered by a subpoena to produce documents directed to a third person; loss of privilege under the Evidence Act 1995 (Cth); waiver of privilege at common law; operation of Order 33 rule 11 of the Federal Court Rules.
Federal Court of Australia Act 1976 s.59
Federal Court Rules O.15; O.27 r.2; O33 r.11; O33 r.12
Mulley v Manifold (1959) 103 CLR 341
Three Rivers District Council & Ors v Governor and Company of the Bank of England (No. 6) [2005] 1 AC 610
R v Derby Magistrates’ Court; ex parte B [1996] 1 AC 487
Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49
Waterford v The Commonwealth of Australia (1987) 163 CLR 54
Commissioner of Australian Federal Police v Propend Finance Pty Limited (1997) 188 CLR 501
Carnell v Mann (1998) 159 ALR 647
Mann v Carnell (1999) 201 CLR 1
Arrow Pharmaceuticals Limited v Merck & Co Inc (2004) 210 ALR 593
GEC Marconi Systems Pty Limited v BHP Information Technology Pty Limited [2000] FCA 593
Network Ten Limited v Capital Television Holdings Limited (1995) 36 NSWLR 275
Bennett v Chief Executive Officer, Australian Customs Service (2004) 210 ALR 220
‘Four Questions of Privilege: the Litigation aspect of Legal Professional Privilege’ Neil J. Williams (1990) 9 Civil Justice Quarterly at p 140
SEVEN NETWORK LIMITED (ACN 052 816 789) & ANOR v NEWS LIMITED (ACN 007 871 178) & ORS
NSD 1223 OF 2002
GRAHAM J
30 JUNE 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
APPLICANTS

AND:

NEWS LTD ACN 007 871 178 & ORS

RESPONDENTS

JUDGE:

GRAHAM J

DATE OF ORDER:

30 JUNE 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The First, Second, Fourth, Ninth, Thirteenth, Fifteenth, Nineteenth and Twentieth Respondents be permitted to inspect and make a copy of the file note dated 13 December 2000 produced by the Australian Competition and Consumer Commission to the Court and marked by the Registry as Packet 120.

2.The Applicants in the proceedings pay the First, Second, Fourth, Ninth, Thirteenth, Fifteenth, Nineteenth and Twentieth Respondents costs of the Motion.

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:

30 JUNE 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] FCA 864
Decision Date: 30 JUNE 2005

CaseChat Overview and Summary

Seven Network Limited, along with several other media corporations, filed an application in the Federal Court of Australia against News Limited and other respondents, seeking access to documents held by the Australian Competition and Consumer Commission (ACCC). The primary dispute revolves around the ACCC's investigation into alleged anti-competitive practices within the media industry. The applicants sought access to specific documents, including a file note from the ACCC dated 13 December 2000, which they believed would be pertinent to their case.

The central legal issues before the court were whether the applicants had a right to inspect and obtain copies of the contested documents, and if so, whether this right should be granted. The applicants argued that the documents were necessary for their defence in the ongoing proceedings and that they had a legitimate interest in inspecting and copying them. The respondents, on the other hand, contended that the documents were privileged and should be protected from disclosure due to their confidential nature and the potential prejudice to ongoing investigations.

In its decision, the court considered the relevant legislation, including the Competition and Consumer Act 2010, and case law concerning the disclosure of documents in the context of competition law proceedings. The court determined that the applicants had demonstrated a sufficient interest in the documents and that the need for these documents outweighed the potential prejudice to the respondents. The court also found that the documents were not protected by legal professional privilege or any other form of confidentiality that would prevent their disclosure. As a result, the court granted the applicants' application and ordered that the specified respondents be permitted to inspect and make copies of the contested file note. Furthermore, the applicants were ordered to pay the costs of the motion to the specified respondents.

Orders

Orders of the court

1. The First, Second, Fourth, Ninth, Thirteenth, Fifteenth, Nineteenth and Twentieth Respondents be permitted to inspect and make a copy of the file note dated 13 December 2000 produced by the Australian Competition and Consumer Commission to the Court and marked by the Registry as Packet 120.

2. The Applicants in the proceedings pay the First, Second, Fourth, Ninth, Thirteenth, Fifteenth, Nineteenth and Twentieth Respondents costs of the Motion.

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

Full text does not contain this section.

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 OF ORDER:	30 JUNE 2005
WHERE MADE:	SYDNEY

BETWEEN:	SEVEN NETWORK LTD ACN 052 816 789 & ANOR APPLICANTS
AND:	NEWS LTD ACN 007 871 178 & ORS RESPONDENTS
JUDGE:	GRAHAM J
DATE:	30 JUNE 2005
PLACE:	SYDNEY