FEDERAL COURT OF AUSTRALIA
Seven Network Limited v News Limited (No 3) [2004] FCA 836
PRACTICE AND PROCEDURE – Confidentiality regime in place – whether confidential discovered documents should be available for inspection by the Executive Chairman of the first applicant.
Trade Practices Act 1974 (Cth) Pt IV
Federal Court of Australia Act 1976 (Cth) s 23
Federal Court Rules O 15
Seven Network Limited v News Limited [2003] FCA 388
Jackson v Sterling Industries Ltd (1987) 162 CLR 612
Ayan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 126 FCR 152
Trade Practices Commission v CC (NSW) Pty Ltd (No 4) (1995) 58 FCR 426
Harman v Secretary of State for the Home Department [1983] 1 AC 280
Mackay Sugar Co-operative Association Ltd v CSR Ltd (1996) 63 FCR 408
Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34
Macquarie Generation v Coal and Allied Industries Ltd [2001] FCA 1349
SEVEN NETWORK LIMITED & ANOR v NEWS LIMITED & ORS
N 1223 of 2002
SACKVILLE J
SYDNEY
29 JUNE 2004
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
N 1223 of 2002 |
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BETWEEN: |
SEVEN NETWORK LTD FIRST APPLICANT
C7 PTY LIMITED SECOND APPLICANT
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AND: |
NEWS LIMITED FIRST RESPONDENT
SKY CABLE PTY LIMITED SECOND RESPONDENT
TELSTRA MEDIA PTY LIMITED THIRD RESPONDENT
FOXTEL MANAGEMENT PTY LIMITED FOURTH RESPONDENT
TELSTRA CORPORATION LIMITED FIFTH RESPONDENT
TELSTRA MULTIMEDIA PTY LIMITED SIXTH RESPONDENT
PUBLISHING AND BROADCASTING LIMITED SEVENTH RESPONDENT
NINE NETWORK AUSTRALIA PTY LIMITED EIGHTH RESPONDENT
SPORTS INVESTMENTS AUSTRALIA PTY LIMITED NINTH RESPONDENT
NETWORK TEN PTY LIMITED TENTH RESPONDENT
AUSTRALIAN FOOTBALL LEAGUE ELEVENTH RESPONDENT
AUSTRALIAN RUGBY FOOTBALL LEAGUE LIMITED TWELFTH RESPONDENT
NATIONAL RUGBY LEAGUE INVESTMENTS PTY LIMITED THIRTEENTH RESPONDENT
NATIONAL RUGBY LEAGUE LIMITED FOURTEENTH RESPONDENT
FOXTEL CABLE TELEVISION PTY LIMITED FIFTEENTH RESPONDENT
OPTUS VISION PTY LIMITED SIXTEENTH RESPONDENT
AUSTAR UNITED COMMUNICATIONS LIMITED SEVENTEENTH RESPONDENT
AUSTAR ENTERTAINMENT PTY LIMITED EIGHTEENTH RESPONDENT
IAN HUNTLY PHILIP NINETEENTH RESPONDENT
NEWS PAY TV PTY LIMITED TWENTIETH RESPONDENT
PBL PAY TV PTY LIMITED TWENTY-FIRST RESPONDENT
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SACKVILLE J |
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DATE OF ORDER: |
29 JUNE 2004 |
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WHERE MADE: |
SYDNEY |
THE COURT ORDERS THAT:
1. Subject to order 3 below, orders 3 and 4 made on 23 December 2002 be set aside.
2. Subject to order 3 below, the regime for the protection of discovered documents (including those set out in Schedule 1 to the orders of 23 December 2002) requiring special protection because of their commercial sensitivity be as set out in Annexure A to these orders.
3. Nothing in these orders will prevent disclosure of documents listed in Schedule 1 to the orders of 23 December 2003 to persons falling within paragraph 3(vi) to Schedule 4 to those orders in accordance with order 4 and Schedule 4 to those orders.
4. The parties file each confidentiality undertaking given in accordance with the schedules to Annexure A to these orders with the court within 14 days of its execution.
5. The Registrar keep confidential all undertakings filed on behalf of each party separate from the undertakings of any other party by placing those undertakings in a sealed envelope identified by the name of the party.
6. Access to the contents of the envelopes referred to in order 5 be limited to the party named on the envelope unless leave is granted by the Court.
7. Anyone who has signed an undertaking in the form of Schedule 1 to Annexure A to these orders be released from any undertaking given in the form of Schedule 3 to the orders dated 23 December 2002.
8. Orders 1 – 7 be stayed for 21 days, insofar as they permit Mr Stokes, the Executive Chairman of the first applicant, to inspect any confidential documents discovered by Optus, or permit any person signing the Confidential Undertaking in Schedule 1 to Annexure A to these orders to disclose the confidential documents or any information contained in them to Mr Stokes.
9. If within the period of 21 days referred to in order 8, Optus files a notice of motion seeking orders that Mr Stokes not be permitted to inspect or have access to particular documents identified in the motion, the stay will continue until further order, but the stay will apply only to the documents identified in the motion and to the information contained in those documents.
10. The costs of the motion be reserved.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
N 1223 of 2002 |
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BETWEEN: |
SEVEN NETWORK LTD FIRST APPLICANT
C7 PTY LIMITED SECOND APPLICANT
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AND: |
NEWS LIMITED FIRST RESPONDENT
SKY CABLE PTY LIMITED SECOND RESPONDENT
TELSTRA MEDIA PTY LIMITED THIRD RESPONDENT
FOXTEL MANAGEMENT PTY LIMITED FOURTH RESPONDENT
TELSTRA CORPORATION LIMITED FIFTH RESPONDENT
TELSTRA MULTIMEDIA PTY LIMITED SIXTH RESPONDENT
PUBLISHING AND BROADCASTING LIMITED SEVENTH RESPONDENT
NINE NETWORK AUSTRALIA PTY LIMITED EIGHTH RESPONDENT
SPORTS INVESTMENTS AUSTRALIA PTY LIMITED NINTH RESPONDENT
NETWORK TEN PTY LIMITED TENTH RESPONDENT
AUSTRALIAN FOOTBALL LEAGUE ELEVENTH RESPONDENT
AUSTRALIAN RUGBY FOOTBALL LEAGUE LIMITED TWELFTH RESPONDENT
NATIONAL RUGBY LEAGUE INVESTMENTS PTY LIMITED THIRTEENTH RESPONDENT
NATIONAL RUGBY LEAGUE LIMITED FOURTEENTH RESPONDENT
FOXTEL CABLE TELEVISION PTY LIMITED FIFTEENTH RESPONDENT
OPTUS VISION PTY LIMITED SIXTEENTH RESPONDENT
AUSTAR UNITED COMMUNICATIONS LIMITED SEVENTEENTH RESPONDENT
AUSTAR ENTERTAINMENT PTY LIMITED EIGHTEENTH RESPONDENT
IAN HUNTLY PHILIP NINETEENTH RESPONDENT
NEWS PAY TV PTY LIMITED TWENTIETH RESPONDENT
PBL PAY TV PTY LIMITED TWENTY-FIRST RESPONDENT
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JUDGE: |
SACKVILLE J |
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DATE: |
29 JUNE 2004 |
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PLACE: |
SYDNEY |
REASONS FOR JUDGMENT
1 The applicants have filed a motion seeking orders consolidating and amending the confidentiality regime that is in force for the purpose of the proceedings. Agreement has been reached between the applicants and all respondents, other than the sixteenth respondent (‘Optus’). In substance, the dispute between the applicants and Optus is whether Mr Stokes, the Executive Chairman of the first applicant (‘Seven’) should be added to a list of five persons who, in addition to the applicants’ legal representatives and expert witnesses, are permitted to inspect confidential documents discovered by Optus. I refer to those five persons as the ‘Authorised Recipients’.
2 The substantive proceedings arise out of bids for the pay television rights to Australian Football League and National Rugby League. The applicants seek relief primarily by reason of what are said to have been contraventions of Part IV of the Trade Practices Act 1974 (‘TP Act’) by the twenty-one respondents, including Optus, in connection with the bidding for the pay television rights. An outline of key features of the applicants’ case appears in an earlier interlocutory judgment: Seven Network Limited v News Limited [2003] FCA 388.
3 Mr Stokes and companies associated with him hold about 43 per cent of the shares in Seven. The evidence establishes that Mr Stokes is and will continue to be heavily involved in making decisions on behalf of the applicants concerning the conduct of the litigation. Mr Stokes regularly has discussions concerning the litigation with the Authorised Recipients. Decisions regarding the day to day conduct of the litigation are made by Mr Stokes in consultation with the Authorised Recipients.
4 All respondents other than Optus have consented to Mr Stokes having access to their confidential documents. Optus, however, resists any change to the confidentiality regime which would allow Mr Stokes to have access to Optus’ confidential documents.
the confidentiality regime
5 Under the present confidentiality regime, implemented by orders made by Gyles J on 23 December 2002, Optus may claim confidentiality in respect of those of its discovered documents that require special protection. Optus is required to provide a written statement of the basis for its claims. The regime makes provision for challenges to be made to any of Optus’ claims that documents should be subject to the confidentiality regime. I was informed that, to date, Optus has claimed confidentiality in respect of about 600 documents of varying length.
6 The orders include provision for a ‘Confidentiality Undertaking for execution by representatives of the Applicants’ (‘the Undertaking’). As originally formulated, par 3(a) of the Undertaking, required the signatory not to disclose the confidential documents to anyone other than nominated persons. Those persons were the applicants’ legal representatives, any independent experts retained by the applicants and two named officers of Seven. (A separate regime is in place for so-called ‘super-confidential documents’, but it is not necessary to consider this category.)
7 Optus and all other respondents have agreed to modify the original confidentiality regime by adding three additional officers of Seven to the list of those authorised to inspect confidential discovered documents. There are therefore five Authorised Recipients, as follows:
- Mr Peter Gammell, a non-executive Director of Seven, and a member of the Board’s Audit Committee;
- Mr Bruce McWilliam, the Commercial Director of Seven and an executive Director;
- Mr Robin Waters, a non-Executive Director of Seven from 1997 to 2000 and an alternative Director to Mr Gammell;
- Mr Mark Jarman, Senior Corporate Counsel of Seven; and
- Mr Steve Wise, Project Director of Seven, formerly responsible for its pay television strategy.
the principles
8 Section 23 of the Federal Court of Australia Act 1976 (Cth) gives the Court power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate. Although the power conferred by s 23 is by no means unlimited (see Jackson v Sterling Industries Ltd (1987) 162 CLR 612, at 622, per Deane J; Ayan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 126 FCR 152, at 154-155, per Sackville J), it is sufficiently wide to sustain the orders sought by the applicants.
9 It is, however, necessary to bear in mind the provisions of Federal Court Rules (‘FCR’), O 15, which deals with discovery and inspection of documents. In particular, FCR, O 15 r 15 provides that the Court shall not make an order for the production of any document unless satisfied that the order is necessary at the time it is made. The rule is concerned with what is necessary ‘in the interests of a fair trial’ and the ‘fair disposition of the case’: Trade Practices Commission v CC (NSW) Pty Ltd (No 4) (1995) 58 FCR 426, at 436-437, per Lindgren J.
10 The existing Undertaking requires the signatory, among other things, to undertake to the Court not to use the confidential documents or any information contained in them other than for the conduct of the Federal Court proceedings. If Mr Stokes is granted access to the confidential documents, he will be required to sign a document equivalent to the Undertaking, which will be enforceable, if necessary, by contempt sanctions. The Undertaking covers much the same ground as the principles that in any event limit the use that can be made of discovered documents by a party to litigation: Harman v Secretary of State for the Home Department [1983] 1 AC 280; cf FCR, O 15 r 18.
11 In frequently cited observations, Lord Keith in Harman said (at 308):
‘Discovery constitutes a very serious invasion of the privacy and confidentiality of a litigant’s affairs. It forms part of English legal procedure because the public interest in securing that justice is done between parties is considered to outweigh the private and public interest in the maintenance of confidentiality. But the process should not be allowed to place upon the litigant any harsher or more oppressive burden than is strictly required for the purpose of securing that justice is done.’
As Spender J noted in Mackay Sugar Co-operative Association Ltd v CSR Ltd (1996) 63 FCR 408, at 412, Lord Keith’s observations are consistent with the terms of FCR, O 15. I bear them in mind in dealing with the applicants’ motion.
12 In Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34, the Victorian Court of Appeal addressed the principles applicable where a party to litigation seeks access to confidential documents of a trade rival. Hayne JA (with whom Winneke P and Phillips JA agreed) said this (at 39-40):
‘Where, as here, the problem is one of balancing the needs of a party to the litigation and the legitimate concern of a trade rival to retain secrecy of commercially sensitive information, it may well be necessary to mould orders that will distinguish between the plaintiff, its officers, its legal advisers and experts. Again it may be accepted that generally a party is entitled to inspect the documents of an opposite party by itself its servants or its agents. But in the present kind of case, is it necessary to destroy the legitimate claim to confidentiality from trade rivals by permitting the principal of that rival to look at the documents? Is it sufficient to permit counsel and solicitors (and nominated experts) to do so? It is now commonplace in the courts for material to be made available only to the legal advisers of the parties and nominated experts. Of course such arrangements being with their own difficulties and are arrangements that should be adopted only where there is a need to do so; of course they are arrangements that may need to be reviewed as the matter progresses towards trial or as the trial itself proceeds. But they are arrangements that are made and should be made when doing so would strike a fair balance between the competing interests of the party seeking inspection and the party claiming confidentiality. No more specific rule can be laid down – each case will fall for determination according to its own facts.’
Hayne JA’s statement has been adopted in decisions of this Court: see, for example, Mackay Sugar, at 414, per Spender J; Macquarie Generation v Coal and Allied Industries Ltd [2001] FCA 1349, at [18], per Beaumont J. The statement points out that the Court must undertake a balancing exercise which ultimately must be determined by reference to the particular circumstances of the case.
13 Hayne JA in Mobil Oil also expressed scepticism as to whether confidentiality can be preserved where the party obtaining discovery is a trade rival of the person providing discovery. Hayne JA said this (at 38):
‘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 be 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?’
14 In Mackay Sugar, Spender J expressed the view (at 413-414) that this expression of scepticism was somewhat overstated:
‘In many circumstances people, including judges, are given information which for some reason or another should not be used for a particular purpose. It goes without saying that judges are expected to decide cases on the material properly admissible before them and to put to one side anything which is inadmissible or irrelevant to the determination of the issues before them. It seems to me that while there are difficulties raised by the need to adopt that course, it is a course which, in fact, is both necessary and frequent. Similarly, here it seems to me that it overstates the matter to say that confidentiality is destroyed on disclosure, or that a particular person is unable not to use information, imparted to him on a strict undertaking of confidentiality, for improper purposes.’
15 In my opinion, the concern raised by Hayne JA may be very important in a given case, but whether it is right to say that inspection of documents by a trade rival necessarily destroys confidentiality once and for all will depend on the particular circumstances of the case. Sometimes that will be so. On other occasions, depending on the nature of the confidential information, the undertakings and other circumstances, it perhaps can be said with a reasonable degree of confidence that confidentiality is likely to be preserved.
REASONING
16 In Mobil Oil, the plaintiff sought orders that the defendant produce three identified documents, each of which was said to be confidential. In Mackay Sugar, the dispute concerned discovered documents enumerated in a schedule. The documents were divided into five categories and the basis of the claim that the documents were commercially sensitive was the subject of detailed evidence. Spender J made orders for confidentiality regimes that distinguished between separate categories of documents and also made special orders in respect of particular documents identified by number.
17 The present case involves rather different issues. The applicants seek to have Mr Stokes added to a list of five officers already authorised, subject to the Undertaking, to inspect Optus’ confidential documents. Although some of the confidential documents were admitted into evidence, I was only taken in detail to one in the course of argument. That document showed, however, if demonstration of the point was necessary, that some of the confidential documents are likely to have forensic significance for the case.
18 An officer of Optus gave evidence that the confidential documents fall into the following categories:
‘(a) documents containing commercial terms upon which Optus acquired or acquires channels and/or programming;
(b) internal emails, correspondence and other documentation regarding or evidencing commercial management decisions in relation to pricing and pricing proposals, content costs and content proposals, commercial strategy and business plans;
(c) financial document and financial performance assessments; and
(d) documents showing Optus’s current subscriber numbers,
including in draft form.’
The documents are said to be commercially sensitive:
‘because they contain information which, if disclosed in the proceedings, may be used by Optus’ competitors, its future competitors or parties with whom Optus has or may have contractual relationships:
(a) to achieve more favourable terms for the acquisition or supply of channels from Optus than they may otherwise be able to achieve;
(b) to offer commercial terms more favourable than those offered by Optus;
(c) in the context of future commercial negotiations with Optus or other industry participants, to procure more favourable outcomes for themselves to the disadvantage of Optus; and
(e) insofar as the documents exhibit internal business plans, financial information and commercial strategies of Optus, to achieve an unfair advantage over Optus within future negotiations.’
19 While this evidence explains the basis on which confidentiality has been claimed, the explanation is somewhat general in character. Optus did not identify any of the 600 or so confidential documents that might present particular difficulties for it should Mr Stokes be granted access to them, bearing in mind that the Authorised Recipients are entitled to inspect the documents in any event.
20 Mr Jackman SC, who appeared with Mr Moore for the applicants, identified a number of factors that, in his submission, justified making the orders sought by the applicants. Some of these I think can be put to one side as of little significance. Others, in my view, are of considerable weight.
21 The most important consideration is that the applicants’ legal representatives and the other Authorised Recipients must exercise great care in their discussions with Mr Stokes not to contravene the Undertaking. I accept that because Optus has claimed confidentiality over a large volume of documents, the Authorised Recipients are inhibited in what they can discuss with Mr Stokes. I appreciate that Mr Stokes himself did not give evidence and that there was no evidence of specific difficulties that have occurred to date, although the applicants’ solicitor said in evidence that the Authorised Recipients, and Mr Gammell in particular, had expressed to him their concerns in general terms. Nonetheless, I think it clear enough that the Authorised Recipients will not be able to discuss the issues in the litigation fully and openly with Mr Stokes because of a legitimate concern that they should not breach the Undertaking.
22 Similarly, there are obvious difficulties confronting the applicants’ legal representatives when they communicate with Mr Stokes about the proceedings. As the applicants’ solicitor said in his affidavit, in practice it will be necessary to create two separate sets of correspondence – one for the Authorised Recipients and a ‘sanitised’ version for Mr Stokes that not only eliminates references to any confidential documents but does not incorporate any of the information contained in them. It is true that the legal representatives must prepare ‘sanitised’ reports for Board members who are not Authorised Recipients and presumably also for Mr Leckie, the Chief Executive Officer of Seven, who is also not an Authorised Recipient. But, in my view, Mr Stokes, as the principal decision-maker of Seven for the purposes of the litigation, is in a special position.
23 Optus did not suggest that there was anything inappropriate in Mr Stokes having ultimate responsibility for decisions in relation to the litigation. The result is that the most significant decision-maker within the applicants’ camp is unable to be shown or told about documents or information, some of which may be critical to decisions that must be made about the conduct of the litigation (including any settlement negotiations that may take place). There is therefore a risk of serious forensic disadvantage for the applicants if Mr Stokes is deprived of access to the confidential information.
24 A second important consideration is that Optus has already agreed that the Authorised Representatives, including the five officers identified earlier, may have access to Optus’ confidential documents. If there are difficulties in disclosing information to Mr Stokes, many of these same difficulties already exist. I appreciate that, as Mr Bannon SC, who appeared with Mr Leeming for Optus, repeatedly emphasised, Mr Stokes is the ultimate decision-maker for the applicants. But it would seem likely, for example, that Mr McWilliam, as the Commercial Director and an Executive Director of Seven, will be involved in the sorts of negotiations to which Optus refers. If Mr Stokes is unable to put the confidential information out of his mind (as Optus suggested), why would Mr McWilliam be in any better position? And if Mr McWilliam is able to negotiate consistently with his obligations pursuant to the Undertaking, why would Mr Stokes not be able to do so?
25 I have no reason to doubt that if Mr Stokes executes the Undertaking, he will take his obligations seriously. A practical consequence may be that Mr Stokes (and the Authorised Representatives) will be effectively precluded from participating in any negotiations with third parties where knowledge of Optus’ confidential information would be an advantage to the applicants. This is a commercial risk that Mr Stokes must accept if he executes the required undertaking.
26 Mr Jackman also relied on the fact that all respondents, other than Optus, are content to allow Mr Stokes to inspect their confidential documents. However, I do not regard this as a matter of any significant weight, since I do not know the nature of the confidentiality claims made by the other respondents. Nor do I know what considerations have motivated them to take the stance they have.
27 For its part, Optus relied on Mr Stokes’ role as the ultimate decision-maker for the applicants. Mr Bannon argued that Mr Stokes’ position was different from that of the Authorised Recipients, since he is effectively the ‘mind’ of the applicants.
28 Mr Bannon identified two particular difficulties from Optus’ point of view. The first is said to be that if Mr Stokes were to participate in negotiations with any of Optus’ competitors, he would be unable to keep the confidential information out of his mind, no matter how conscientiously he tried. Secondly, if Mr Stokes was to negotiate with Optus itself, he would be in much the same situation. Indeed, so Mr Bannon argued, it would be unfair to put Mr Stokes in the invidious position of risking contravention of any undertaking he signs.
29 It is true that Mr Stokes’ role in the applicants is different from that of any of the Authorised Recipients. But the fact remains that it is open to them, subject to the terms of the Undertaking, to participate in negotiations with Optus or with Optus’ competitors. Moreover, in the absence of evidence that the applicants have engaged or are about to engage in negotiations of this kind, the detriment to Optus of adding Mr Stokes to the list of Authorised Recipients must be regarded as somewhat speculative, or at least uncertain.
30 I should add that this does not appear to be the sort of trade rival case (if indeed the applicants and Optus can be described as trade rivals) where it is almost inevitable that everyday commercial decisions of one party will be affected by confidential information gained in the course of litigation. Mr Bannon did not suggest that, apart from the applicants’ negotiations with Optus or its competitors, they would be at risk of inadvertently misusing the confidential information.
31 Mr Bannon pointed out that the existing regime seems to have operated thus far without the applicants having complained that they have been impeded in the conduct of the litigants. That is true, but circumstances have changed, since it is only now that the full extent of discovery, and of the claims to confidentiality, have become apparent.
32 Mr Bannon also pointed out that Optus was an unwilling party to the litigation and that, according to the pleadings, it was in some respects as much a victim of misuse of market power as the applicants were. I think it appropriate to take account of the fact that discovery constitutes a very serious invasion of the privacy and confidentiality of a litigant’s affairs (see [11] above). However, I do not think it materially assists Optus on the present application that it has been brought into the proceedings against its will. That is virtually always the position of a defendant or respondent in proceedings like the present case.
33 On balance, I think that the matter relied on by the applicants, particularly the prejudice in the conduct of the litigation that would otherwise flow, justify Mr Stokes to be added to the list of Authorised Recipients, subject of course to his executing the Undertaking. While I do not think that the matters relied on by Optus outweigh the considerations favouring making the orders sought by the applicants, I think that Optus should have an opportunity, if it wishes, to identify particular confidential documents that it says should not be inspected or the contents of which should not be disclosed to Mr Stokes. I do not mean by this that Optus should now be free to identify large numbers of confidential documents and invite the Court to rule on each one. Rather, I have in mind that it is possible that there are a small number of particularly commercially sensitive documents that, according to Optus, might create specific, identifiable prejudice to it if disclosed to Mr Stokes.
34 I therefore propose to make the orders sought by the applicants, but to stay the orders for permitting Mr Stokes to inspect any confidential documents discovered by Optus, or permitting any person signing the Confidentiality Undertaking in Schedule 1 to Annexure A to these orders to disclose the documents or any information contained in them, to Mr Stokes, for 21 days. If within that time, Optus files a further motion seeking orders that Mr Stokes not have access to specified documents, the stay will be extended in relation to those documents until further order.
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I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville. |
Associate:
Dated: 29 June 2004
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Counsel for the 1st and 2nd Applicants: |
I M Jackman SC with C A Moore |
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Solicitor for the 1st and 2nd Applicants: |
Freehills |
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Counsel for the 16th Respondent |
A J Bannon SC with M J Leeming |
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Solicitors for the 16th Respondent: Date of Hearing of Motion: Date of Judgment: |
Atanaskovic Hartnell 24 June 2004 29 June 2004 |
Annexure A
Seven
Network Limited & Anor v News Limited & Ors
Federal Court Proceedings No. N1223 of 2002
CONFIDENTIALITY REGIME
Immediate Discovery
1 Subject to Clause 7 below, any documents which are discoverable (whether pursuant to the arrangements for early discovery, or pursuant to later discovery orders of the Court) and in respect of which no claim is made for special protection should be produced by the relevant date ordered by the Court or agreed by the parties.
Confidentiality Claims by Respondents in relation to documents produced to Applicants
2. Where any Respondent claims that a document requires special protection, the document should be discovered and then produced in the first instance (by the relevant date ordered by the Court or agreed by the parties and production should not await determination of any claims to confidentiality) to the Applicants on the basis that disclosure will be restricted to individuals contemplated by the terms of the undertaking set out in Schedule 1 and who have provided such an undertaking, unless otherwise agreed. The Respondent claiming confidentiality should also provide a written statement of the basis for the claim (but is not required to disclose the nature of the contents of the document to the extent that such disclosure would destroy the claimed confidentiality).
Confidentiality Claims by the Applicants
2A. Where the Applicants claim that a document requires special protection, the document should be discovered and then produced in the first instance (by the relevant date ordered by the Court or agreed by the parties and production should not await determination of any claims to confidentiality) to the Respondents on the basis that disclosure be restricted to individuals contemplated by the terms of the undertaking set out in Schedule 2 and who have provided such an undertaking, unless otherwise agreed. The Applicants should also provide a written statement of the basis for the claim (but are not required to disclose the nature of the contents of the document to the extent that such disclosure would destroy the claimed confidentiality).
Confidentiality claims by Respondents in relation to documents produced to other Respondents
2B. Where any Respondent claims that a document requires special protection, the document should be discovered and then produced in the first instance (by the relevant date ordered by the Court or agreed by the parties and the production should not await the determination of any claims to confidentiality) to the other Respondents on the basis that disclosure will be restricted to other Respondents’ external lawyers (including counsel) and expert witnesses, unless otherwise agreed between the producing Respondent and any other Respondent.
Special Confidentiality Claims
3. Where any party claims that a document requires special protection beyond that conferred by paragraphs 2, 2A or 2B above, or special protection in respect of particular parties, the document should be discovered and then produced in the first instance (by the relevant date ordered by the Court or agreed by the parties and production should not await determination of any claims to confidentiality) to the parties on the basis that disclosure be restricted to individuals contemplated by the terms of the undertaking set out in Schedule 3 and who have provided such an undertaking, unless otherwise agreed. The party claiming confidentiality should also provide a written statement of the basis for the claim (but is not required to disclose the nature of the contents of the document to the extent that such disclosure would destroy the claimed confidentiality)
Challenges to Claims made under paragraphs 2, 2A, 2B or 3
4. If any other party:
4.1 challenges the claim for confidentiality over a document; or
4.2 challenges the need for a confidentiality regime in accordance with that set out in 2, 2A, 2B and 3 above in respect of the document,
then that party may at any time provide written notice of the challenge to the producing party.
Application to the Court
5 If any challenge is made as provided for in (4), then the producing party shall, if a confidentiality regime is still sought to be imposed, within 7 days or within such time as the Court orders or as otherwise agreed, make application to the Court for an order modifying the obligation to discover the document by the imposition of a confidentiality regime, failing which confidentiality will be waived. Until the application is determined, the document shall continue to be protected in accordance with the confidentiality regime set out in 2, 2A, 2B or 3 above. To the extent that it is practicable and without causing undue delay, such applications may be heard together.
Application of confidentiality regime
6. Unless a challenge is made to the claim for confidentiality or the form of the confidentiality regime, the document will be governed by the confidentiality regime set out in 2, 2A, 2B and 3 above.
Other confidentiality claims
7. If a producing party wishes to make any other claim to confidentiality beyond that set out in the protocol above (e.g. a claim for a more restrictive regime than that set out in 2, 2A, 2B and 3 above), it must be made by way of application to the Court or as otherwise agreed. Parties are not obliged to produce any documents over which claims are made pursuant to this clause until any such claims have been determined and the Court orders otherwise, or the parties otherwise agree.
Implied undertaking
8. For the avoidance of doubt, nothing stated herein is taken to relieve the parties of the implied undertakings that attach to discovered documents.
Discovery Protocol
9. Nothing in this regime derogates from the parties’ obligation to provide discovery in accordance with the agreed Discovery Protocol (and in particular, clause 3.1 of the Discovery Protocol).
Ordered by the Court
Schedule 1
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No 1223 of 2002
SEVEN NETWORK LIMITED
ACN 052 816 789
First Applicant
C7 PTY LIMITED
ACN 082 901 442
Second Applicant
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 LEAGUE LIMITED
ACN 098 156 355
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 PTY TV PTY LIMITED
ACN 084 940 367
Twenty-First Respondent
Confidentiality Undertaking
Confidentiality claims by Respondents in
relation to documents produced to Applicants as referred to in clause 2 of the
confidentiality regime
I undertake to the Court and to the Respondents in relation to documents discovered by the Respondents in these proceedings and identified as falling within clause 2 of the confidentiality regime in force between the parties (the documents), that subject to the written consent of the Respondent producing the documents in these proceedings (the relevant Respondent), or an order of the Court, or as required by law:
1. I will not use the documents or any information contained in them other than for the conduct of these Federal Court proceedings numbered N1223 of 2002, and any proceedings which are joined to, or to be heard with, these proceedings.
2. Subject to paragraph 3 below, I will not, without the prior written consent of the relevant Respondent, or an order of the Court, or as required by law, disclose the documents or their contents either directly, or indirectly to any person.
3. The documents and their contents may be disclosed by me to:
(a) any of the following persons provided that that person has signed a confidentiality undertaking substantially in the terms of this confidentiality undertaking:
(i) any partner or employee of any firm of solicitors retained by any party to proceedings N1223 of 2002;
(ii) any barrister retained by any party to proceedings N1223 of 2002;
(iii) any independent expert retained by any party to proceedings N1223 of 2002;
(iv) Mr Peter Gammell;
(v) Mr Steven Wise;
(vi) Mr Robin Waters;
(vii) Mr Mark Jarman;
(viii) Mr Bruce McWilliam;
(ix) Mr Kerry Stokes;
(b) any Judge of the Court, or his or her associate, in connection with proceedings N1223 of 2002.
4 The documents will be kept secure by me. If I am a person referred to in paragraph 3(a)(iv)-(ix) above I will only view the documents and their contents and will not electronically save or copy the documents or their contents, print any of the documents and will not make any notes of the contents of the documents except in relation to communications with the Applicants’ external lawyers for the purpose of instructing them in relation to these proceedings.
5 Where I have disclosed the documents or the information to any person who is involved in the acquisition of sports or television rights, I agree to disclose the identity of that person to the relevant Respondent at the conclusion of the proceedings.
6 I undertake to ensure the return of the documents to the solicitors for the relevant Respondent by such date as is ordered by the Court.
7 The restrictions in this undertaking shall not apply if, and to the extent that, the documents or the information contained in the documents are in, or enter, the public domain, other than as a result of a breach of this undertaking.
Dated: ____________
________________________________
Signature Name (please print)
________________________________
Representative of/position:
Schedule 2
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No 1223 of 2002
SEVEN NETWORK LIMITED
ACN 052 816 789
First Applicant
C7 PTY LIMITED
ACN 082 901 442
Second Applicant
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 LEAGUE LIMITED
ACN 098 156 355
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 PTY TV PTY LIMITED
ACN 084 940 367
Twenty-First Respondent
Confidentiality Undertaking
Confidentiality claims by the Applicants as referred to in clause 2A of the
confidentiality regime
I undertake to the Court and to Applicants in relation to the documents discovered in these proceedings and identified by the Applicants as falling within clause 2A of the confidentiality regime in force between the parties (the documents), that subject to the written consent of the Applicants or an order of the Court, or as required by law:
1. I will not use the documents or any information contained in them other than for the conduct of these Federal Court proceedings numbered N1223 of 2002, and any proceedings which are joined to, or to be heard with, these proceedings.
2. Subject to paragraph 3 below, I will not, without the prior written consent of the Applicants, or an order of the Court, or as required by law, disclose the documents or their contents either directly, or indirectly to any person.
3. The documents and their contents may be disclosed by me to:
(a) any of the following persons provided that that person has signed a confidentiality undertaking substantially in the terms of this confidentiality undertaking:
(i) any partner or employee of any firm of solicitors retained by any party to proceedings N1223 of 2002;
(ii) any barrister retained by any party to proceedings N1223 of 2002;
(iii) any independent expert retained by any party to proceedings N1223 of 2002;
(iv) two nominated executives of each Respondent and two nominated in-house lawyers of each Respondent who have each been approved in writing by the Applicants;
(b) any Judge of the Court, or his or her associate, in connection with proceedings N1223 of 2002.
4. The documents will be kept secure by me. If I am one of those persons referred to in paragraph 3(a)(iv) above I will only view the documents and will not electronically save or copy the documents or print any documents and will not make any notes of the contents of the documents except in relation to communications with the external lawyers for the Respondent who nominated me for the purpose of instructing them in relation to these proceedings.
5. Where I have disclosed the documents or the information to any person who is involved in the acquisition of sports or television rights, I agree to disclose the identity of that person to the Applicants at the conclusion of the proceedings.
6. I undertake to ensure the return of the documents to the solicitors for the Applicants by such date as is ordered by the Court.
7. The restrictions in this undertaking shall not apply if, and to the extent that, the documents or the information contained in the documents are in, or enter, the public domain, other than as a result of a breach of this undertaking.
Dated: ____________
________________________________
Signature Name (please print)
________________________________
Representative of/position:
Schedule 3
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No 1223 of 2002
SEVEN NETWORK LIMITED
ACN 052 816 789
First Applicant
C7 PTY LIMITED
ACN 082 901 442
Second Applicant
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 LEAGUE LIMITED
ACN 098 156 355
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 PTY TV PTY LIMITED
ACN 084 940 367
Twenty-First Respondent
Confidentiality Undertaking
Special claims for confidentiality as referred to in clause 3 of the
confidentiality regime
I undertake to the Court and to the parties in relation to the documents discovered in these proceedings and identified by the party as falling within clause 3 of the confidentiality regime in force between the parties (the documents), that subject to the written consent of the producing party, or an order of the Court, or as required by law:
1. I will not use the documents or any information contained in them other than for the conduct of these Federal Court proceedings numbered N1223 of 2002, and any proceedings which are joined to, or to be heard with, these proceedings.
2. Subject to paragraph 3 below, I will not, without the prior written consent of the producing party, or an order of the Court, or as required by law, disclose the documents or their contents either directly, or indirectly to any person.
3. The documents and their contents may be disclosed by me to
(c) any of the following persons provided that that person has signed a confidentiality undertaking substantially in the terms of this confidentiality undertaking:
(i) any partner or employee of any firm of solicitors retained by any party to proceedings N1223 of 2002;
(ii) any barrister retained by any party to proceedings N1223 of 2002;
(iii) any independent expert retained by any party to proceedings N1223 of 2002;
(d) any Judge of the Court, or his or her associate, in connection with proceedings N1223 of 2002.
4. The documents will be kept secure by me.
5. Where I have disclosed the documents or the information to any person who is involved in the acquisition of sports or television rights, I agree to disclose the identity of that person to the relevant party at the conclusion of the proceedings.
6. I undertake to ensure the return of the documents to the solicitors for the relevant party by such date as is ordered by the Court.
7. The restrictions in this undertaking shall not apply if, and to the extent that, the documents or the information contained in the documents are in, or enter, the public domain, other than as a result of a breach of this undertaking.
Dated: ____________
________________________________
Signature Name (please print)
________________________________
Representative of/position:
