Seven Network Limited v News Limited (No 7) [2005] FCA 1092

Seven Network Limited v News Limited (No 7) [2005] FCA 1092

Seven Network did not waive legal professional privilege because its defence did not plead reliance on legal advice or assert a specific state of mind; therefore, there was no inconsistency sufficient to amount to waiver, and no unfairness in maintaining privilege over the advice.

Parties
First Applicant: Seven Network Limited; Second Applicant: C7 Pty Limited; First Respondent: News Limited; Second Respondent: Sky Cable Pty Limited; Third Respondent: Telstra Media Pty Limited; Fourth Respondent: Foxtel Management Pty Limited; Fifth Respondent: Telstra Corporation Limited; Sixth Respondent: Telstra Multimedia Pty Limited; Seventh Respondent: Publishing and Broadcasting Limited; Eighth Respondent: Nine Network Australia Pty Limited; Ninth Respondent: Sports Investments Australia Pty Limited; Tenth Respondent: Network Ten Pty Limited; Eleventh Respondent: Australian Football League; Twelfth Respondent: Australian Rugby Football League Limited; Thirteenth Respondent: National Rugby League Investments Pty Limited; Fourteenth Respondent: National Rugby League Limited; Fifteenth Respondent: Foxtel Cable Television Pty Limited; Sixteenth Respondent: Optus Vision Pty Limited; Seventeenth Respondent: Austar United Communications Limited; Eighteenth Respondent: Austar Entertainment Pty Limited; Nineteenth Respondent: Ian Huntly Philip; Twentieth Respondent: News Pay TV Pty Limited; Twenty First Respondent: PBL Pay TV Pty Limited; Twenty Second Respondent: Singtel Optus Pty Limited
Jurisdiction
Australia
Judgment Date
11 August 2005
Procedural Posture
Interlocutory Motion Within Civil Proceedings / Motion to Produce Documents (notice to Produce)
Outcome
Motion dismissed
Legal Topics
Legal Professional Privilege, Implied Waiver of Privilege, Relevance of Privileged Documents to State of Mind, Misleading and Deceptive Conduct, Pleadings, Reasonable Grounds for Future Matters (s 51 a Trade Practices Act)
Practice and Procedure Evidence Trade Practices Legal Professional Privilege Implied Waiver of Privilege Relevance of Privileged Documents to State of Mind Misleading and Deceptive Conduct Pleadings +1 more

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Parties

Seven Network Limited

First Applicant

C7 Pty Limited

Second Applicant

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

Singtel Optus Pty Limited

Twenty Second Respondent

Procedural Posture

Interlocutory Motion Within Civil Proceedings / Motion to Produce Documents (notice to Produce)

Legal Issues

  1. 1 Whether Seven Network waived legal professional privilege over legal advice relating to the date it lost AFL television rights by its pleading or conduct
  2. 2 Whether privileged legal advice is relevant to Seven Network's state of mind or reasonable grounds in the context of alleged misleading and deceptive conduct
  3. 3 Whether the form of the pleading by Seven Network amounts to an assertion of state of mind sufficient to constitute waiver

Ratio Decidendi

Seven Network did not waive legal professional privilege because its defence did not plead reliance on legal advice or assert a specific state of mind; therefore, there was no inconsistency sufficient to amount to waiver, and no unfairness in maintaining privilege over the advice.

Court Disposition

Motion dismissed

Orders

  • The motion be dismissed.
  • Unless written submissions are filed in accordance with Order 3, the costs of the motion be costs in the cause.