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Seven Network Ltd v News Ltd (No 8)

Seven Network Ltd v News Ltd (No 8)

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FEDERAL COURT OF AUSTRALIA
Seven Network Limited v News Limited (No 8)
[2005] FCA 1348
EVIDENCE – opinion evidence admissible to prove the truth of the opinion – whether Court should exercise discretion to limit use of evidence – unfair prejudice – procedural unfairness – evidence admitted for limited purpose of proving belief or intention – Evidence Act 1995 (Cth) ss 77, 136
Trade Practices Act 1974 (Cth)
Evidence Act 1995 (Cth) ss 60, 77, 78, 79, 136
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157
Commonwealth of Australia v McLean (1996) 41 NSWLR 389
Roach v Page (No 11) [2003] NSWSC 907
Guide Dog Owners’ & Friends’ Association Inc v Guide Dog Association of New South Wales and ACT (1998) 154 ALR 527
Papakosmas v The Queen (1999) 196 CLR 297
Gordon (Bankrupt), Official Trustee in Bankruptcy v Pike (No 1) (FCA unreported, 1 September 1995)
Ringrow Pty Ltd v BP Australia Ltd [2003] FCA 933
Quick v Stoland Pty Ltd (1998) 87 FCR 371
SEVEN NETWORK LIMITED and ANOR v NEWS LIMITED and ORS
NSD 1223 of 2002
SACKVILLE J
SYDNEY
22 SEPTEMBER 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 LIMITED
(ACN 068 104 530)
EIGHTEENTH RESPONDENT

IAN HUNTLY PHILIP
NINETEENTH RESPONDENT

NEWS PAY TV PTY LIMITED
(ACN 085 095 487)
TWENTIETH RESPONDENT

PBL PAY TV PTY LIMITED
(ACN 084 940 367)
TWENTY-FIRST RESPONDENT

SINGTEL OPTUS PTY LIMITED
(ACN 052 833 208)
TWENTY-SECOND RESPONDENT

JUDGE:

SACKVILLE J

DATE:

22 SEPTEMBER 2005

PLACE:

SYDNEY

RULING ON EVIDENCE (No 1)
THE ISSUE

A dispute has arisen concerning the admissibility of portions of the statement of Mr Gammell of 24 March 2004 (‘the Statement’). I heard argument yesterday (21 September 2005)…

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 1348
Decision Date: 22 SEPTEMBER 2005

CaseChat Overview and Summary

The Federal Court of Australia, in the case of Seven Network Limited v News Limited (No 8) [2005] FCA 1348, dealt with a dispute regarding the admissibility of parts of a statement made by Mr Gammell on March 24, 2004. The dispute focused on whether certain opinions expressed by Mr Gammell about the strategy for positioning the Seven Network as an integrated media company could be admitted as evidence to prove the truth of those opinions or merely to show that Mr Gammell held those opinions. Seven Network argued for the unrestricted admission of the evidence, while respondents like Telstra and Publishing and Broadcasting Limited (PBL) contended that the evidence should only be admitted to show Mr Gammell's beliefs or intentions without proving the truth of those beliefs.

The court considered the provisions of the Evidence Act 1995 (Cth), particularly sections 77 and 136, which respectively allow for the admission of opinion evidence for purposes other than proving the truth of the facts and permit the court to limit the use of evidence if it might be unfairly prejudicial. The court determined that while opinion evidence can be admitted for purposes other than proving the truth of facts under section 77, the court has a discretion under section 136 to limit the use of such evidence if there is a danger of unfair prejudice. The court found that in this case, admitting the evidence in the manner proposed by Seven Network created a significant risk of unfair prejudice to the respondents due to the difficulty in effectively challenging the evidence in cross-examination, given the complexity of the case and the lack of detail in Mr Gammell's statement. Therefore, the court exercised its discretion under section 136 to limit the use of Mr Gammell's evidence to proving only that he held certain opinions, not the truth of those opinions.

The final orders of the court were to admit Mr Gammell's evidence of his opinions only for the limited purpose of proving that he held those opinions, and not to prove the truth of the facts on which those opinions were based. This ruling was made to balance the need to allow the evidence to be presented while protecting the respondents from unfair procedural disadvantages.

Orders