FEDERAL COURT OF AUSTRALIA

Nine Films & Television Pty Ltd (ACN 066 040 024) v Ninox Television Limited (formerly known as Ninox Films Limited) [2005] FCA 1656

NINE FILMS & TELEVISION PTY LTD (ACN 066 040 024) AND NINE NETWORK AUSTRALIA PTY LTD (ACN 008 685 407) v NINOX TELEVISION LIMITED (FORMERLY KNOWN AS NINOX FILMS LIMITED), TELEVISION NEW ZEALAND LIMITED AND JOHN CHARLES MCEWEN

NSD 2005 OF 2005

GYLES J

10 NOVEMBER 2005

SYDNEY

THE COURT ORDERS THAT:

1.         The First and Third Respondents be granted leave to appeal the judgment of Tamberlin J delivered 30 September 2005.

2.         Pursuant to O 52 r 37 of the Federal Court Rules, the hearing of the appeal be expedited.

3.         The First and Third Respondents give security for the Applicants’ costs in respect of the appeal.

4.         The security referred to in paragraph 3 above, to be:

(a)       in an amount to be agreed between the parties by 18 November 2005 or failing agreement by determination of the Court; and

(b)      provided by way of deposit of funds into the interest bearing controlled monies account established by the Solicitor for the First and Third Respondents and the Solicitor for the Applicants, pursuant to the orders of Lindgren J dated 7 June 2005.

5.         Costs reserved.

THE COURT DIRECTS THAT:

1.      A notice of appeal be filed and served within seven (7) days.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an application for leave to appeal from a decision of Tamberlin J delivered on 30 September 2005 (Nine Films & Television Pty Ltd v Ninox Television Limited [2005] FCA 1404).  Some orders were made on that day which are contained in the judgment.  The principal declarations and orders were made on 4 November 2005. An order had been made during the course of the proceeding that all issues of liability be determined prior to and separate from quantum.  The orders which have been made deal with all questions of relief save for damages.

2                     The parties are agreed that it is an appropriate case for the grant of leave to appeal.  That consent is an important consideration in judging whether that leave should be granted, although it is not decisive.

3                     Having considered the issues in the case and the very limited nature of the relief which remains to be dealt with, in my view, it is an appropriate case for the grant of leave.

4                     Then the question of expedition is raised.  The parties desire expedition.  I am prepared to make that order.  There is some current commercial significance remaining in the matter which tends in favour of the grant of expedition.  Also there are related proceedings in the United States which, as a practical matter, are awaiting the resolution of this case.  That is another factor which weighs in favour of expedition.

5                     I should not, however, by ordering expedition, mislead the parties as to what the result may be.  As is well known, the judicial resources of this Registry are two short at the moment, with two other judges (at least) fully occupied in long matters.  The February/March Full Courts, I think, have technically closed now, and an expedition order might or might not be able to lead to listing during that sittings.

6                     By making an order for expedition I would envisage that that possibility would remain open, but I do not intend that it would be at the cost of other cases which are already properly in the queue.  If that cannot be accommodated, then the matter will undoubtedly take its place in the May Full Courts.  I would be hopeful that the necessary amount of time could be found in February, but I cannot give any assurance about it.

7                     I make orders in accordance with the short minutes which have been handed up.  I direct that a notice of appeal be filed and served within seven days.

Associate:

Dated:              17 November 2005