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Seven Network Ltd v News Ltd (No 5)

Seven Network Ltd v News Ltd (No 5)

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FEDERAL COURT OF AUSTRALIA
Seven Network Limited v News Limited (No 5) [2005] FCA 510
PRACTICE and PROCEDURE – leave sought to serve notices to produce – test of ‘apparent relevance’ – whether documents sought are ‘reasonably likely to add to the relevant evidence’ – whether confidential nature of documents renders notice to produce oppressive – ambiguous terms of notice to produce liable to be set aside as oppressive – Federal Court Rules (Cth) O 15 rr 8, 11(1), O33 r 12
Broadcasting Services Act 1986 (Cth) ss 99, 115, Sch 2 Pt 6 cl 10
Federal Court Rules (Cth) O 15 rr 8, 11, O 33 r 12
CCom Pty Ltd v Jiejing Pty Ltd (1992) 37 FCR 1 cited
Microsoft Corporation v CX Computer Pty Ltd (2002) 116 FCR 372 cited
Mulley v Manifold (1958) 103 CLR 341 cited
Beecham Group Ltd v Bristol-Myers Co [1979] VR 273 cited
BP Australia Pty Ltd v Nyran Pty Ltd [2003] FCA 834 cited
National Employers’ Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372 followed
Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 followed
Liberty Financial Pty Ltd v Scott [2004] VSC 382 cited
Re ACI International Ltd (1986) 11 ACLR 240 considered
Apache Northwest Pty Ltd v Western Power Corporation (1998) 19 WAR 350 followed
Spatialinfo Pty Ltd v Telstra Corporation Ltd [2005] FCA 455 followed
Hamilton v Oades (1989) 166 CLR 486 considered
Trade Practices Commission v Arnotts Limited (No 2) (1989) 88 ALR 90 cited
Rural Press Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 53 considered
SEVEN NETWORK LIMITED and ANOR v NEWS LIMITED and ORS
NSD 1223 of 2002
SACKVILLE J
SYDNEY
29 APRIL 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 APPLICANT

C7 PTY LIMITED
(ACN 082 901 442)
SECOND APPLICANT

AND:

NEWS LIMITED
(ACN 007 871 178)
FIRST RESPONDENT

SKY CABLE PTY LIMITED
(ACN 069 799 640)
SECOND RESPONDENT

TELSTRA MEDIA PTY LIMITED
(ACN 069 279 027)
THIRD RESPONDENT

FOXTEL MANAGEMENT PTY LIMITED
(ACN 068 671 938)
FOURTH RESPONDENT

TELSTRA CORPORATION LIMITED
(ACN 051 775 556)
FIFTH RESPONDENT

TELSTRA MULTIMEDIA PTY LIMITED
(ACN 069 279 072)
SIXTH RESPONDENT

PUBLISHING AND BROADCASTING LIMITED
(ACN 009 071 167)
SEVENTH RESPONDENT

NINE NETWORK AUSTRALIA PTY LIMITED
(ACN 008 685 407)
EIGHTH RESPONDENT

SPORTS INVESTMENTS AUSTRALIA PTY LIMITED
(ACN 065 445 418)
NINTH RESPONDENT

NETWORK TEN PTY LIMITED
(ACN 052 515 250)
TENTH RESPONDENT

AUSTRALIAN FOOTBALL LEAGUE
(ACN 004 155 211)
ELEVENTH RESPONDENT

AUSTRALIAN RUGBY FOOTBALL LEAGUE LIMITED
(ACN 003 107 293)
TWELFTH RESPONDENT

NATIONAL RUGBY LEAGUE INVESTMENTS PTY LIMITED
(ACN 081 778 538)
THIRTEENTH RESPONDENT

NATIONAL RUGBY LEAGUE LIMITED
(ACN 082 088 962)
FOURTEENTH RESPONDENT

FOXTEL CABLE TELEVISION PTY LIMITED
(ACN 069 008 797)
FIFTEENTH RESPONDENT

OPTUS VISION PTY LIMITED
(ACN 066 518 821)
SIXTEENTH RESPONDENT

AUSTAR UNITED COMMUNICATIONS LIMITED
(ACN 087 695 707)
SEVENTEENTH RESPONDENT

AUSTAR ENTERTAINMENT PTY…

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 510
Decision Date: 29 APRIL 2005

CaseChat Overview and Summary

This case involves a legal dispute between Seven Network Ltd and News Ltd. The primary focus is on whether certain subpoenas and notices to produce are oppressive or vexatious. The matter was heard by the Federal Court of Australia. The dispute centres on the terms and enforceability of a deed which restricts the Australian Football League's (AFL) ability to grant exclusive broadcasting rights for AFL matches to third parties without first offering these rights to Seven Network. The documents sought through the subpoenas and notices to produce are related to the anti-siphoning regime under the Broadcasting Services Act 1992 (Cth) and the commercial negotiations around the broadcasting rights for AFL matches.

The court had to determine the legal standards for determining whether a subpoena or notice to produce is oppressive, considering both the purpose behind issuing the documents and their impact on the recipients. It also needed to assess the relevance of the documents sought to the issues in dispute, especially in light of the anti-siphoning regime and its implications for broadcasting rights. Furthermore, the court had to balance the need for confidentiality in commercial negotiations against the public interest in transparency and the prevention of oppressive litigation practices.

The court found that the subpoenas and notices to produce were overly broad and not sufficiently relevant to the issues at hand. It took into account the marginal relevance of the documents sought, the wide scope of the notices, and the commercial sensitivity of the communications. The court concluded that certain parts of the notices to produce should be deleted to ensure they were not oppressive or vexatious. Consequently, the court granted leave to serve the notices to produce on Seven Network and Network Ten, subject to specified deletions. The court also proposed a costs order that would require Seven Network and Network Ten to pay 50% of the costs of the motion, while the parties supporting News Ltd were to bear their own costs. The court left the door open for further submissions on the costs orders if the parties disagreed with the proposed arrangement.

The final orders of the court included granting leave to serve the notices to produce with certain deletions and proposed a specific costs order. The court directed the parties to bring in minutes of order that would give effect to the judgment and incorporate the agreed confidentiality regime.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

In determining whether a subpoena or notice to produce is oppressive, the comments of Deane and Gaudron JJ in Hamilton v Oades (1989) 166 CLR 486, at 502, are apposite:‘The power of a court to control and supervise its process to prevent injustice is not restricted to defined and closed categories … In this context injustice is not simply a question of the purpose or motive for which the relevant proceedings were instituted but includes a consideration of the consequences of the proceedings for the person invoking the power. The terms “oppressive” and “vexatious” are often used to signify those considerations which justify the exercise of the power to control proceedings to prevent injustice, those terms respectively conveying, in appropriate context, the meaning that the proceedings are “seriously and unfairly burdensome, prejudicial or damaging” and “productive of serious and unjustified trouble and harassment”.’ (Citations omitted.)This involves an inquiry which is not limited to analysing the true purpose of the party issuing the subpoena or notice to produce, but includes examining its impact upon the recipient: Trade Practices Commission v Arnotts Limited (No 2) (1989) 88 ALR 90, at 102, per Beaumont J.BACKGROUND The effect of the First and Last Deed, as pleaded in par 96 of the Fourth Further Amended Statement of Claim (‘FASC’) is as follows:(i)the AFL can negotiate with any party other than Seven Network (and its associates) (the ‘Third Party’) for the grant of an exclusive licence of the free-to-air television rights to AFL matches (the ‘Third Party Licence’);(ii)prior to granting such a licence, the AFL must offer to grant an exclusive licence of the same rights to Seven Network on the same terms; and(iii)if Seven Network rejects this offer, the AFL must not grant any licence of the free-to-air television rights to AFL matches to any person except by granting a licence to the Third Party on the terms of the Third Party Licence. It is common ground that the First and Last Deed applied to the bidding for the AFL broadcast rights to the 2002-2006 seasons and that it also applies to the bidding for the rights to the 2007-2011 seasons. As I have noted, Seven Network has announced that it has given notice to the AFL to include Network Ten as a party to the First and Last Deed in relation to the rights for the 2007-2011 seasons. In assessing the relevance to the issues in dispute of the documents sought in the notice to produce, reference should be made to the so-called anti-siphoning regime established under the Broadcasting Services Act 1986 (Cth), ss 99, 115(1), Sch 2, Pt 6, cl 10(1)(e). It is common ground that the effect of the regime is that a subscription television licensee (that is, the operator of a pay television service) cannot acquire the rights to televise any event on the anti-siphoning list (specified in a notice under s 115(1)) unless: the Australian Broadcasting Corporation (‘ABC’) or the Special Broadcasting Service Corporation (‘SBS’); or a free-to-air television licensee whose broadcasting services cover at least fifty per cent of the Australian population,already has the right to televise the event live on its broadcasting service.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

SACKVILLE J

Taking into account the marginal apparent relevance of the documents sought, the width of the notices to produce (even as limited by par (e) of the Defined Matters) and the commercial sensitivity of the communications sought by PBL, I think that par (e) of the Defined Matters should be deleted from the notices to produce.CONCLUSION I propose to grant leave to PBL to serve the notices to produce on Seven Network and Network Ten subject to the following:(i)deletion of pars (a) and (b) of the Defined Matters; (ii)deletion of the words ‘the value of any remaining AFL pay television rights or’ in par (c) of the Defined Matters; and(iii)deletion of par (e) of the Defined Matters. My present view is that Seven Network and Network Ten should pay fifty per cent of PBL’s costs of the motion. I have taken into account that PBL has not had unqualified success on the motion and that the form of confidentiality orders was in dispute until a late stage. My present view is also that the parties supporting PBL were in the same interest and should bear their own costs of the motion. If, however, the parties wish to make submissions that different costs orders should be made, I shall give them the opportunity to do so. I shall direct PBL to bring in short minutes of order giving effect to this judgment. The short minutes should incorporate the agreed confidentiality regime.

Ratio Decidendi

Legal Principle Established

Established by: SACKVILLE J

Full text does not contain this section.

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