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Seven Network Ltd v News Ltd (No 9)

Seven Network Ltd v News Ltd (No 9)

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Case Copied 5 October 2005 23 min read

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FEDERAL COURT OF AUSTRALIA
Seven Network Limited v News Limited (No 9)
[2005] FCA 1394
PRACTICE AND PROCEDURE – public access to documentary evidence – principle of open justice – electronic courtroom – electronic media court book – Federal Court Rules, O 46 r 6
Federal Court of Australia Act 1976 (Cth) s 50
Evidence Act 1995 (Cth) ss 55, 56
Federal Court Rules O 46 r 6
Macquarie Radio Network Pty Ltd v The Australian Broadcasting Authority [2002] FCA 1408, cited
R v Davis (1995) 57 FCR 512, cited
John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344, cited
The Herald & Weekly Times Ltd v The Magistrates’ Court of Victoria (2000) 2 VR 346, cited
John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465, cited
Russell v Russell (1976) 134 CLR 495, considered
Harmon v Secretary of State for the Home Department [1983] AC 280, cited
Attorney-General v Leveller Magazine Ltd [1979] AC 440, cited
John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101, discussed
GIO Personal Investment Services Ltd v Liverpool and London Steamship Protection and Indemnity Association Ltd [1999] 1 WLR 984, cited
Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 3) [2002] FCA 609, distinguished
SEVEN NETWORK LIMITED and ANOR v NEWS LIMITED and ORS
NSD 1223 of 2002
SACKVILLE J
SYDNEY
5 OCTOBER 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…

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 1394
Decision Date: 5 OCTOBER 2005

CaseChat Overview and Summary

In the case of Seven Network Ltd v News Ltd (No 9), the primary dispute revolves around the extent of access the Australian Broadcasting Corporation (ABC) is entitled to regarding various documents and proceedings related to the case. This matter was brought before the Federal Court of Australia, where the court had to navigate complex issues of media access to court documents and proceedings, particularly in light of the Australian Broadcasting Corporation's request for access to specific materials. The court was tasked with determining the scope of permissible access under the Federal Court Rules and the Federal Court of Australia Act 1976 (Cth), specifically focusing on whether the ABC should have unrestricted access to non-confidential documents and exhibits.

The legal issues central to this case encompassed the interpretation of Federal Court Rules and the Federal Court of Australia Act 1976 (Cth). The court had to decide whether the ABC, as a non-party, is entitled to inspect and access certain court documents and exhibits under the Federal Court Rules, particularly in the context of a high-profile and publicly significant case. The key question was whether the ABC should have unrestricted access to non-confidential exhibits, or if access should be limited to instances when the exhibits are referred to in the proceedings. The parties, including Telstra and other involved parties, argued for a restricted access model, asserting that the ABC should only access the exhibits when they are directly referenced in court.

The Federal Court of Australia, after thorough consideration, ruled in favour of granting the ABC access to the non-confidential exhibits, but with certain conditions and limitations. The court held that the ABC, as a non-party, has the right to access pleadings, written submissions, and transcripts, aligning with the general principle of open justice. However, regarding non-confidential exhibits, the court determined that access should be limited to instances when these exhibits are referred to in the course of evidence or oral argument, or in written submissions. This decision balances the principles of open justice with the need to protect the integrity and confidentiality of the proceedings where necessary. The court's ruling thus ensures that the ABC can report on the case effectively while maintaining the necessary safeguards to prevent undue influence or prejudice to the judicial process.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

SACKVILLE J

Section 50 of the Federal Court of Australia Act 1976 (Cth), which is referred to in the ABC’s motion, provides that the Court may, at any time during or after the hearing of a proceeding, make such order forbidding or restricting the publication of particular evidence, or the name of a party or witness, as appears to the Court ‘to be necessary in order to prevent prejudice to the administration of justice…’.THE ISSUE FOR DECISION FCR O 46 r 6(2) explicitly covers written submissions. Accordingly, a non-party such as the ABC may search in the Registry for and inspect any such submission, unless the Court has ordered that the document is confidential. Affidavits and unsworn statements of evidence are expressly referred to in O 46 r 6(3). The sub-rule makes no distinction between an affidavit or statement which has been read or admitted into evidence and one which has not. The effect of r 6(3) is that a non-party to a proceeding, such as the ABC, is not to inspect any affidavit or statement, whether or not admitted into evidence, except with the leave of the Court. Since experts’ reports are ordinarily annexed or exhibited to affidavits or witness statements, they are effectively in the same position. Of course if the contents of an affidavit or statement are referred to in open court, any person in court is free to make a fair report of the material referred to. Documents admitted into evidence and other exhibits are not referred to in either sub-rule (2) or (3) of O 46 r 6. They are subject to sub-rule (4) and therefore cannot be inspected by a non-party, except with the leave of the Court or with permission of the Registrar. The ABC has not sought the permission of the Registrar to inspect the non-confidential exhibits, no doubt because it has taken the view that a Registrar would be likely to refuse permission without a direction from the Court. Order 46 r 6(5) prevents a party to a proceeding or any other person (including a non-party such as the ABC) searching in the Registry for or inspecting a transcript of the proceeding. Accordingly, the ABC is not entitled to obtain a transcript unless the Court grants leave. In fact, as I have noted, the Court has already granted leave pursuant to O 46 r 6(5) and the daily transcript in electronic form has been made available to any media outlet that has sought access to it. The parties to the proceedings are in agreement or at least do not dispute that, subject to the practicalities being resolved, the ABC (and therefore other media outlets) should have access to:·the pleadings;· those parts of affidavits, witness statements and expert reports admitted into evidence;·written submissions; and·the transcript (real time or historical). The only significant dispute arising out of the motion relates to documents and other material admitted into evidence other than affidavits, witness statements and expert reports (‘the Exhibits’). Telstra, with the support of at least some of the other parties, submits that in the unusual circumstances of the present case, the ABC should not be entitled to unqualified access to the non-confidential Exhibits. Mr Castle, who argued this aspect of the motion on behalf of Telstra, contends that the ABC should have access to the Exhibits only when they are referred to in the course of evidence or oral argument or in written submissions provided to the Court. The consequence of this contention, if accepted, is that the ABC would not be permitted to identify, quote from or refer to any Exhibit until it is referred to in the proceedings in the manner suggested by Mr Castle. The issue for determination is whether Telstra’s submission should be accepted.

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