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:

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.
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.
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…

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: [2021] FCA 1303
Decision Date: 26 October 2021

CaseChat Overview and Summary

In Seven Network v Cricket Australia (No 3), Seven Network Limited sought to inspect certain documents held by Cricket Australia Limited as part of a broader dispute over broadcasting rights for cricket matches. The case was heard in the Federal Court of Australia. The primary legal issue before the court was whether a non-party, in this case Seven Network, was entitled to inspect documents pursuant to rule 2.32 of the Federal Court Rules 2011 (Cth). A secondary issue was whether confidentiality orders were required before granting access to restricted documents under the Federal Court of Australia Act 1976 (Cth).

The court examined the scope of rule 2.32, which allows for the inspection of documents by non-parties, and considered whether the circumstances warranted the imposition of confidentiality orders under section 37AF of the Federal Court of Australia Act 1976 (Cth). The court found that, while there was a general right of inspection under the rules, the specific documents in question contained sensitive information that could harm the parties if disclosed without safeguards. Consequently, the court determined that confidentiality orders were necessary to protect the integrity of the proceedings and the interests of the parties involved. These orders were made to ensure that the documents could only be inspected under strict conditions that maintained their confidentiality.

The outcome of the case was that the documents in question would remain confidential and not be subject to inspection by non-parties until further order of the court. This decision underscored the court's duty to balance the rights of non-parties to inspect documents with the need to protect sensitive information and maintain the confidentiality of the proceedings.

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, 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.

Background

Background to the litigation

Full text does not contain this section.

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

Full text does not contain this section.

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

ORDER MADE BY:	ANASTASSIOU J
DATE OF ORDER:	26 OCTOBER 2021