Seven Network v Cricket Australia (No 3)

[2021] FCA 1303

FEDERAL COURT OF AUSTRALIA

Seven Network v Cricket Australia (No 3) [2021] FCA 1303

File number:

VID 764 of 2020

Judgment of:

ANASTASSIOU J

Date of judgment:

26 October 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 confidentiality orders required before granting access to restricted document – confidentiality orders made pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth)

Legislation:

Federal Court of Australia Act 1976 (Cth), s 37AF

Federal Court Rules 2011 (Cth), r 2.32

Cases cited:

Seven Network v Cricket Australia [2021] FCA 1031

Seven Network v Cricket Australia (No 2) [2021] FCA 1032

Division:

General Division

Registry:

Victoria

National Practice Area:

Commercial and Corporations

Sub-area:

Commercial Contracts, Banking, Finance and Insurance

Number of paragraphs:

8

Date of last submission:

20 September 2021 (Prospective Respondent)

Date of hearing:

Determined on the papers

Solicitor for the Prospective Applicant:

Atanaskovic Hartnell

Counsel for the Prospective Respondent:

Mr A. Dinelli

Solicitor for the Prospective Respondent:

K&L Gates

ORDERS

VID 764 of 2020

BETWEEN:

SEVEN NETWORK

Prospective Applicant

AND:

CRICKET AUSTRALIA

Prospective Respondent

ORDER MADE BY:	ANASTASSIOU J
DATE OF ORDER:	26 OCTOBER 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, Annexure CWC-6 to the affidavit of Christien William Corns sworn 15 March 2021 be marked as confidential 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.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ANASTASSIOU J:

1. These reasons are to be read alongside the background matters set out in Seven Network v Cricket Australia [2021] FCA 1031 at [1]-[35] (the Preliminary Discovery Reasons) as well as the earlier confidentiality orders made in Seven Network v Cricket Australia (No 2) [2021] FCA 1032 (the Confidentiality Reasons). For convenience, I adopt the abbreviations and definitions in the Preliminary Discovery Reasons and Confidentiality Reasons in these reasons.

2. By a request originally dated 31 August 2021, and subsequently revised on 13 September 2021, a journalist from The Age newspaper requested access to various restricted documents filed in this proceeding (the Second Media Request). The Second Media Request is a ‘non-party search request’ made pursuant to r 2.32(4) of Federal Court Rules 2011 (Cth). No specific reasons are advanced in support of the request but I presume the purpose is to assist in the fair and accurate reporting of matters of journalistic interest.

3. The Second Media Request seeks access to an affidavit of Christien William Corns sworn 15 March 2021, which I have earlier referred to as the Second Corns Affidavit, as well as various affidavits and submissions in relation to which I have previously made confidentiality orders and/or granted access in the Confidentiality Reasons.  

4. For the reasons that follow, I consider that a confidentiality order pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) should also be made in respect of the Second Corns Affidavit. That order is necessary to protect against disclosure of Stage 1 of the Expert Determination issued pursuant to cl 6.11 of the MRA.

5. It will be unsurprising that such an order is necessary given the matters discussed at [8] of the Preliminary Discovery Reasons in relation to the importance of this Expert Determination remaining confidential.  For convenience, I set out that passage below.

   … the underlying grievance advanced by Seven concerns changes made to the scheduling of the Seven Matches. There are specific and detailed provisions in the MRA relating to scheduling changes, including a mechanism for compensating Seven for the adverse effects of such changes following an Expert Determination under cl 6.11 of the MRA (see also cll 6.3 and 6.4 of MRA). In this instance, the Expert Determination process was enlivened by Seven on 11 September 2020 and a Final Determination was issued in respect of that process on 12 March 2021. The contents of that determination, including the amount of compensation to which Seven is entitled due to the scheduling changes, are confidential and it is proper that such sensitive commercial information not be disclosed: see, eg, Mobil Oil Australia Ltd & McDonalds Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34 at 38 (Hayne JA), (Winneke P and Phillips JA agreeing at 35)…

6. Consistent with those remarks, I have already made confidentiality orders in respect of Stage 2 of the Expert Determination process.  In this respect, I reiterate the views I expressed at [30] and [36] of the Confidentiality Reasons:

   Cricket Australia submitted that the Expert Determination process undertaken by the parties is subject to the MRA’s confidentiality clause. The appointed expert is also subject to a confidentiality obligation. Cricket Australia submitted that confidentiality is proper and necessary, as the Expert Determination process involves a detailed assessment of the value of rights granted by Cricket Australia to Seven under the MRA. As above, disclosure of such commercially sensitive information would undermine Cricket Australia’s ability to negotiate future media rights agreements.

   …

   … I am satisfied 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 underacted form.

7. It follows that public disclosure of Stage 1 of the Expert Determination, which includes the expert’s interpretation of terms in the MRA, has the potential to prejudice Cricket Australia’s commercial interests.  For instance, Cricket Australia might engage in future negotiations regarding terms similar to those in the MRA and, in those circumstances, it would be inappropriate for the Court to undermine Cricket Australia’s bargaining position by disclosing sensitive commercial information filed in connection with this proceeding.

8. Accordingly, I will make an order that Annexure CWC-6 to the Second Corns Affidavit be marked as confidential.  The document, albeit I acknowledge in a very limited capacity, will otherwise be made available to The Age and other media organisations that might be interested in the document.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anastassiou.

Associate:

Dated:       26 October 2021