FEDERAL COURT OF AUSTRALIA
Seven Network Limited v News Limited (No 4) [2005] FCA 244
PRACTICE and PROCEDURE – application for summary dismissal – whether the nexus between contraventions of the Trade Practices Act 1974 (Cth) and the ‘structural relief’ sought must be spelt out – basis for the structural relief sought tolerably clear – Trade Practices Act 1974 (Cth) ss 50, 80(1), (5), 81(1) – Federal Court Rules (Cth) O 20 r 2
PRACTICE and PROCEDURE – pleadings – striking out – exclusive dealing by entering into an agreement containing an exclusionary provision – particulars contain allegations of object and purpose – whether embarrassing and vexatious – Trade Practices Act 1974 (Cth) ss 4(1), 45(2)(b)(ii), 47(1) – Federal Court Rules (Cth) O 11 r 16
Trade Practices Act 1974 (Cth) ss 4, 4L, 45, 46, 47, 50, 80, 81, Pt XIC
Federal Court Rules (Cth) O 11 r 16, O 20 r 2Dey v Victorian Railways Commissioners (1949) 78 CLR 62 followed
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 followed
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 887 followed
Australian Building Industries Pty Ltd v Stramit Corporation Ltd [1997] FCA 1318 cited
Lonrho Plc v Fayed (No 2) [1992] 1 WLR 1 cited
Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] FCA 918; 34 ACSR 672 cited
Trade Practices Commission v Australia Meat Holdings Pty Ltd [1988] FCA 338; ATPR 40-876 cited
Australia Meat Holdings Pty Ltd v Trade Practices Commission [1989] FCA 25; ATPR 40-932 cited
Rieson v SST Consulting Services Pty Ltd [2005] FCAFC 6 cited
Tradestock Pty Ltd v TNT (Management) Pty Ltd (No 2) (1978) 32 FLR 420 cited
Trade Practices Commission v TNT Management Pty Ltd (1985) 6 FCR 1 citedSEVEN NETWORK LIMITED & ANOR v NEWS LIMITED & ORS
NSD 1223 of 2002SACKVILLE J
SYDNEY
16 MARCH 2005
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1223 of 2002
BETWEEN:
SEVEN NETWORK LIMITED
(ACN 052 816 789)
FIRST APPLICANTC7 PTY LIMITED
(ACN 082 901 442)
SECOND APPLICANTAND:
NEWS LIMITED
(ACN 007 871 178)
FIRST RESPONDENTSKY CABLE PTY LIMITED
(ACN 069 799 640)
SECOND RESPONDENTTELSTRA MEDIA PTY LIMITED
(ACN 069 279 027)
THIRD RESPONDENTFOXTEL MANAGEMENT PTY LIMITED
(ACN 068 671 938)
FOURTH RESPONDENTTELSTRA CORPORATION LIMITED
(ACN 051 775 556)
FIFTH RESPONDENTTELSTRA MULTIMEDIA PTY LIMITED
(ACN 069 279 072)
SIXTH RESPONDENTPUBLISHING AND BROADCASTING LIMITED
(ACN 009 071 167)
SEVENTH RESPONDENTNINE NETWORK AUSTRALIA PTY LIMITED
(ACN 008 685 407)
EIGHTH RESPONDENTSPORTS INVESTMENTS AUSTRALIA PTY LIMITED
(ACN 065 445 418)
NINTH RESPONDENTNETWORK TEN PTY LIMITED
(ACN 052 515 250)
TENTH RESPONDENTAUSTRALIAN FOOTBALL LEAGUE
(ACN 004 155 211)
ELEVENTH RESPONDENTAUSTRALIAN RUGBY FOOTBALL LEAGUE LIMITED
(ACN 003 107 293)
TWELFTH RESPONDENTNATIONAL RUGBY LEAGUE INVESTMENTS PTY LIMITED
(ACN 081 778 538)
THIRTEENTH RESPONDENTNATIONAL RUGBY LEAGUE LIMITED
(ACN 082 088 962)
FOURTEENTH RESPONDENTFOXTEL…
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- Case
- [2005] FCA 244
- Decision Date
CaseChat Overview and Summary
The court ruled that Telstra's summary dismissal application failed, but it struck out certain particulars in the applicants' statement of claim that referred to the objectives or purposes of Telstra Multimedia or Foxtel. The applicants had withdrawn a previous application to amend these particulars, and including them would not advance the resolution of the issues at trial. The court proposed to grant the applicants leave to file a further amended statement of claim, unless any respondent objected. The court indicated that it would not make an order for costs on Telstra's motion unless the parties wished to argue the question of costs.
Orders
Orders of the court
The applicants bring in short minutes of order giving effect to this judgment.
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
Ratio Decidendi
Legal Principle Established
Established by: SACKVILLE J
On 23 January 2004, the applicants informed the other parties that they no longer pressed the amendment and therefore no longer sought discovery of documents relating to the amendment. In a letter dated 23 November 2004, the applicants in relation to a discovery dispute, stated that the purpose of requiring certain documents was ‘to show that the complexity of issues in an access dispute makes the process capable of being frustrated, not that your clients deliberately tried to frustrate the process during the access arbitration involving C7’. (Emphasis added.) The definition of ‘give effect to’ in s 4(1) of the TP Act, in relation to a provision of a contract, arrangement or understanding, includes:‘do an act or thing in pursuance of or in accordance with or enforce or purport to enforce’. It follows from the definition that a corporation ‘gives effect to’ a contract if it does something ‘in accordance with’ the contract, regardless of whether its officers had the contract in mind when they acted in a particular way. The precise motive for the conduct is irrelevant. As Smithers J said in Tradestock Pty Ltd v TNT (Management) Pty Ltd (No 2) (1978) 32 FLR 420, at 432:‘What is prohibited by [s 45(2), read with the definition] does not turn on whether the motives of the persons concerned are good or bad or desirable from their own or the community’s interests.’See also Trade Practices Commission v TNT Management Pty Ltd (1985) 6 FCR 1, at 6, 23-24, per Franki J. In my view, particulars (e)(1) and (e)(2) to par 71 of the FFASC are embarrassing. They plead a purpose or objective that is not a necessary part of the applicants’ case. The applicants withdrew a previous application to amend par 71 so as to include an allegation of a particular purpose. To allow the allegations to remain in the particulars to par 71 would open up an inquiry likely to take considerable time at the trial without advancing resolution of the issues upon which the case will turn. I should add that I do not think that the impugned particulars can be supported by par 141(e) of the FFASC. That sub-paragraph deals with a different issue. The particulars to par 71 must be assessed by reference to the series of allegations of which par 71 forms part. I propose to strike out particulars (e)(1) and (e)(2) to par 71 insofar as they refer to the objective or purpose of Telstra Multimedia or Foxtel.CONCLUSION Telstra’s summary dismissal application fails. However I propose to strike out the particulars to par 71 of the FFASC insofar as they refer to the objective or purpose of Telstra Multimedia or Foxtel. The applicants have filed a motion seeking leave to file a Fourth Further Amended Application. Unless Telstra or one of the other respondents wishes to raise any further argument in opposition to leave being granted, I shall grant that leave. My present inclination is that I should make no order for costs on Telstra’s motion, both parties having enjoyed some success (and experienced some failure). However, if the parties with to argue the question of costs, they shall have the opportunity to do so.