Seven Network Ltd v Australian Competition & Consumer Commission [2008] FCA 411

Seven Network Ltd v Australian Competition & Consumer Commission [2008] FCA 411

The proposed alterations to the declaration were refused because they either risked altering the effect of the tying clauses found to limit the special access undertaking, or were unnecessary if they did not alter that effect. Seven Network, having failed in its application to set aside the ACCC decision and failed to establish legal error, was ordered to pay the ACCC's costs. As between Seven Network and Foxtel, each had success on legally important issues and apportionment was impractical, so no costs order was made between them.

Jurisdiction
Australia
Judgment Date
28 March 2008
Procedural Posture
Application Challenging a Decision of the ACCC to Accept a Special Access Undertaking Offered by Foxtel Under Part XIC of the Trade Practices Act 1974 (cth) / Further Submissions on Form of Declaration and Costs Following Primary Judgment
Outcome
Declaration made; application otherwise dismissed; Foxtel's notice of motion dismissed; Seven Network ordered to pay the ACCC's costs; no order as to costs between Seven Network and Foxtel.
Legal Topics
['special Access Undertaking' 'part XIC of the Trade Practices Act 1974 (cth)' 'tying Clauses' 'declaratory Relief' 'costs']
['competition and Consumer Law' 'telecommunications Access Regulation' 'civil Procedure'] ['special Access Undertaking' 'part XIC of the Trade Practices Act 1974 (cth)' 'tying Clauses' 'declaratory Relief' 'costs']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application Challenging a Decision of the ACCC to Accept a Special Access Undertaking Offered by Foxtel Under Part XIC of the Trade Practices Act 1974 (cth) / Further Submissions on Form of Declaration and Costs Following Primary Judgment

Legal Issues

  1. 1 ['Whether the declaration should be altered from the form suggested in the primary judgment to change references to Digital Set Top Units or describe the undertaking as only in relation to, or not in relation to, certain matters.' 'What costs orders should be made as between Seven Network, the ACCC and Foxtel.' "Whether Foxtel's notice of motion to dismiss the proceedings on discretionary grounds should be dismissed."]

Ratio Decidendi

The proposed alterations to the declaration were refused because they either risked altering the effect of the tying clauses found to limit the special access undertaking, or were unnecessary if they did not alter that effect. Seven Network, having failed in its application to set aside the ACCC decision and failed to establish legal error, was ordered to pay the ACCC's costs. As between Seven Network and Foxtel, each had success on legally important issues and apportionment was impractical, so no costs order was made between them.

Court Disposition

Declaration made; application otherwise dismissed; Foxtel's notice of motion dismissed; Seven Network ordered to pay the ACCC's costs; no order as to costs between Seven Network and Foxtel.

Orders

  • ['It is declared that the Special Access Undertaking by FOXTEL Management Pty Limited (ACN 068 671 938) for and on behalf of the FOXTEL Partnership and FOXTEL Cable Television Pty Ltd (ACN 069 008 797) under Subdivision B of Division 5 Part XIC of the Trade Practices Act 1974 (Cth) and dated 1 December 2006 is,...