FEDERAL COURT OF AUSTRALIA
Seven Network v Cricket Australia (No 2) [2021] FCA 1032
File number: VID 764 of 2020 Judgment of: ANASTASSIOU J Date of judgment: 27 August 2021 Catchwords: PRACTICE AND PROCEDURE – whether non-party is entitled to inspect documents pursuant to r 2.32 of the Federal Court Rules 2011 (Cth) – whether granting access to restricted documents would do irreparable harm to a party’s commercial interests – request for access granted, subject to making of confidentiality order pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) Legislation: Federal Court of Australia Act 1976 (Cth), ss 37AE, 37AF, 37AG
Federal Court Rules 2011 (Cth), r 2.32
Cases cited: Appleroth v Ferrari Australasia Pty Limited [2020] FCA 756
Australian Securities and Investments Commission v Cassimatis (No 4) [2015] FCA 465
Australian Broadcasting Commission v Parish [1980] FCA 33, 29 ALR 228
Baptist Union v Roberts [2015] FCA 1068; 241 FCR 135
Central Equity Ltd v Chua [1999] FCA 1067
Churche v Australian Prudential Regulation Authority (No 3) [2006] FCA 1168
Isaac v Dargan Financial Pty Ltd [2018] NSWCA 163; 98 NSWLR 343
Mobil Oil Australia Ltd & McDonalds Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34
Pfizer Ireland Pharmaceuticals v Samsung Bioepis AU Pty Ltd [2017] FCAFC 193; 257 FCR 62
Division: General Division Registry: Victoria National Practice Area: Commercial and Corporations Sub-area: Commercial Contracts, Banking, Finance and Insurance Number of paragraphs: 40 Date of last submissions: 23 March 2021 Date of hearing: Determined on the papers Counsel for the Prospective Applicant: Mr D. Thomas SC with Mr H. Atkin Solicitor for the Prospective Applicant: Atanaskovic Hartnell Counsel for the Prospective Respondent: Mr J. Gleeson with Mr A. Dinelli Solicitor for the Prospective Respondent: K&L Gates ORDERS
VID 764 of 2020 BETWEEN: SEVEN NETWORK (OPERATIONS) LIMITED (ACN 65 052 845 262)
Prospective Applicant
AND: CRICKET AUSTRALIA (ACN 53 006 089 130)
Prospective Respondent
ORDER MADE BY:
ANASTASSIOU J
DATE OF ORDER:
27 AUGUST 2021
THE COURT ORDERS THAT:
1.Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), until further order of the Court, the following documents be redacted or marked as confidential (as the case may be) and not be capable of inspection pursuant to r 2.32 of the Federal Court Rules 2011 (Cth) by a person who is not a party to the proceeding:
(a)in the affidavit of Lewis Martin affirmed on 30 November 2020 (the First Martin Affidavit):
(i)sub-paragraphs (a) and (b) of paragraph 10 [CB 84]; and
(ii)that sub-paragraph of paragraph 65, beginning "I am therefore … " and ending “the prior year’s cricket Season” [CB 104];
(b)in Annexure LM-1 to the First Martin Affidavit:
(i)pages 1 to 178 [CB 108-275];
(ii)pages 229 to 231 [CB 336-338];
(iii)on pages 234 to 235 [CB 341-342], the paragraphs under the heading "Additional impacts of the…
Keep reading for free
Create a free CaseChat account to read Seven Network v Cricket Australia (No 2) and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2021] FCA 1032
- Decision Date
CaseChat Overview and Summary
The court emphasised that the principles protecting confidential information operate more favourably in the context of a preliminary discovery application, especially when the proceeding is putative only and the prospective respondent is not yet subject to the full coercive powers of the court in relation to discovery between parties to a proceeding. The court found that it was in the interests of justice to recognise Cricket Australia’s legitimate commercial interests in protecting sensitive commercial information, particularly their bargaining position in future negotiations with other potential counterparties. The court also observed that the disclosure of the documents in unredacted form could prejudice Cricket Australia’s commercial interests.
Accordingly, the court granted leave for the non-party to inspect the relevant documents, subject to specific redactions and confidentiality orders. These orders were to be made pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth). The court provided detailed instructions on which parts of the affidavits and exhibits were to be redacted or marked as confidential, ensuring that only the sensitive commercial information was protected. The court’s decision balanced the need for transparency in legal proceedings with the necessity to protect commercially sensitive information, thereby upholding the principles of justice and fairness.
Orders
Orders of the court
1. Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), until further order of the Court, the following documents be redacted or marked as confidential (as the case may be) and not be capable of inspection pursuant to r 2.32 of the Federal Court Rules 2011 (Cth) by a person who is not a party to the proceeding:
(a) in the affidavit of Lewis Martin affirmed on 30 November 2020 (the First Martin Affidavit):
(i) sub-paragraphs (a) and (b) of paragraph 10 [CB 84]; and
(ii) that sub-paragraph of paragraph 65, beginning "I am therefore … " and ending “the prior year’s cricket Season” [CB 104];
(b) in Annexure LM-1 to the First Martin Affidavit:
(i) pages 1 to 178 [CB 108-275];
(ii) pages 229 to 231 [CB 336-338];
(iii) on pages 234 to 235 [CB 341-342], the paragraphs under the heading "Additional impacts of the Force Majeure Events";
(iv) on pages 243 to 244 [CB 350-351], paragraph 19 including its subparagraphs;
(v) page 250 [CB 357];
(vi) page 251 to 255 [CB 358-362];
(vii) page 284 [CB 391];
(viii) on page 285 [CB 392], the paragraph numbered 5;
(ix) on page 289 [CB 396], paragraphs 11(A) and 11(B);
(x) on pages 289 to 290 [CB 396-397], the paragraph numbered 12;
(xi) on page 292 [CB 399], the paragraph numbered 5;
(xii) on pages 295 to 296 [CB 402-403], the paragraph numbered 9;
(xiii) on pages 303 and 305 [CB 410 and 412], the monetary amount following the passage "2. CA has allocated a budget of over … ";
(c) in the affidavit of Stephanie Helen Beltrame Sturrock affirmed on 16 February 2021 (the First Beltrame Affidavit):
(i) on page 8 [CB 628], the paragraphs 20 and 21;
(ii) on page 8 [CB 628], the paragraph numbered 22;
(iii) on pages 11 to 12 [CB 631-632], the paragraph numbered 35;
(iv) in paragraph 56, the comments on page 18 [CB 638] attributed to Mr Warburton;
(v) the Confidential Schedule [CB 646-647];
(d) in Annexure SBS-1 to the First Beltrame Affidavit:
(i) pages 072 to 075 [CB 720-723];
(ii) on page 107 [CB 755], the paragraphs under the heading "Relevant contractual obligations";
(iii) on pages 113 to 114 [CB 761-762], the paragraphs under the heading "Relevant contractual obligations";
(iv) on page 125 [CB 773], the paragraph beginning with "To that end …";
(v) on page 127 [CB 775], the paragraph beginning with "To that end …";
(vi) on page 129 [CB 777], the sentence beginning with "To that end …";
(vii) pages 136 to 139 [CB 784-787];
(viii) on page 145 [CB 793], the paragraph beginning "As you know …";
(ix) on pages 147 to 148 [CB 795-796], the paragraph beginning "change the proposed quarantine … ";
(x) on page 148 [CB 796], the paragraph beginning "The reasons why …";
(xi) page 150 [CB 798];
(xii) on pages 151 to 153 [CB 799-801], the paragraphs under the heading "Damages/Rights Fee reduction pursuant to clauses 6.3(b)(ii) and 6.3(d)(ii)";
(xiii) pages 155 to 157 [CB 803-805];
(xiv) pages 158 to 159 [CB 806-807];
(xv) pages 162 to 163 [CB 810-811];
(xvi) on pages 164 to 165 [CB 812-813], the paragraphs under the heading "23 September Notice";
(xvii) page 167 [CB 815];
(xviii) page 174 [CB 822];
(xix) on pages 194 to 195 [CB 842-843], the paragraph numbered 1.2 including its subparagraphs;
(xx) on pages 201 to 202 [CB 849-850], the paragraph numbered 6;
(xxi) on pages 203 to 204 [CB 851-852], the paragraph numbered 9;
(xxii) on page 206 [CB 854], that sub-paragraph of the paragraph numbered 16(B) beginning “each of those” and ending with “in issuing them”;
(xxiii) pages 215 to 216 [CB 863-864];
(xxiv) on page 218 [CB 866], the first paragraph;
(xxv) on pages 220 to 221 [CB 868-869], the paragraphs under the heading "Determining breach before the end of the 2020/2021 season";
(e) in the affidavit of Christien William Corns sworn 15 December 2020 (including the Confidential Schedule filed on 15 December 2020) (the First Corns Affidavit):
(i) on pages 021 to 022 [CB 596-597], the paragraph numbered 1.2 including its subparagraphs;
(ii) on pages 029 to 030 [CB 604-605], the paragraph numbered 6;
(iii) on pages 031 to 032 [CB 606-607], the paragraph numbered 9;
(iv) on page 034 [CB 609], the paragraph beginning that sub-paragraph of the paragraph numbered 16(B) beginning “each of those” and ending with “in issuing them”;
(v) the Confidential Schedule [CB 619-620];
(f) in the affidavit of Stephanie Helen Beltrame Sturrock affirmed on 12 March 2021 (the Second Beltrame Affidavit), the Confidential Schedule;
(g) Annexure SBS-2 to the Second Beltrame Affidavit; and
(h) in the Court Book, the materials referred to in paragraphs 1(a) to 1(g) above as they appear in the Court Book.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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
Fourth, Cricket Australia submitted that there are other materials containing commercially sensitive information. Amongst other things, that includes information about financial support provided to BBL teams and information regarding the performance of the BBL, in relation to which it is prudent to say less rather than more. I have also considered these specific objections to the disclosure of the restricted documents. CONSIDERATION During the course of the preliminary discovery hearing, I observed that the principles applicable to protecting confidential information might be expected to operate more favourably in the context of a preliminary discovery application for a party seeking to suppress commercially sensitive material. There are good reasons for such an approach, including that at this stage, the proceeding is putative only and the prospective respondent is not yet subject to the full coercive powers of the Court in relation to discovery between parties to a proceeding. This observation is consistent with observations by Cowdroy J in Churche v Australian Prudential Regulation Authority (No 3) [2006] FCA 1168 at [19], in which his Honour said: It is important to bear in mind that the application before this Court is an application for preliminary discovery. Further, only an interlocutory hearing has taken place, so the ultimate merits of the applicant’s preliminary discovery claim have not yet been considered and much of the evidence filed in the proceedings has not yet been read in open court. I am satisfied that Cricket Australia has proposed a regime which is proportionate and adapted to the commercial risks upon which its application is founded. As Hayne JA (as he then was) explained in Mobil Oil Australia Ltd & McDonalds Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34 at 38 (Winneke P and Phillips JA agreeing at 35):Once the documents are inspected by the principals of the trade rival the information which is revealed is known to the trade rival and cannot he forgotten. Confidentiality is destroyed once and for all (at least so far as the particular trade rival is concerned). To say that the trade rival is bound not to use the documents except for the purposes of the action concerned is, in a case such as this, to impose upon that trade rival an obligation that is impossible of performance by him and impossible of enforcement by the party whose secrets have been revealed. How is the trade rival to forget what internal rate of return the competitor seeks to achieve on a new investment of the kind in question? How is the party whose hurdle rate has been revealed to know whether the rival has used the information in framing a tender? Thus, if the trade rival may inspect the documents concerned, the confidentiality of the information in them is at once destroyed. Is that necessary for the attainment of justice in the particular case? [Emphasis added] In the present case, the orders sought by Cricket Australia are directed to maintaining the confidentiality of only those parts of affidavits and exhibits that contain sensitive commercial information. For the reasons I have given above, I am satisfied that it is in the interests of justice that Cricket Australia’s legitimate commercial interests in protecting sensitive commercial information should be recognised. In particular, Cricket Australia’s bargaining position in future negotiations with other potential counterparties should not be put at risk of prejudice by the disclosure of the documents in unredacted form.