IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION 2 January 1980 No. G 83 of 1979 et er er we BETWEEN : AUSTRALIAN BROADCASTING COMMISSION Applicant AND ;: ROBERT JAMES PARISH AND ORS BEING THE MEMBERS OF THE AUSTRALIAN CRICKET BOARD First to Fourteenth Respondents PBL MARKETING PTY LIMITED Fifteenth Resnondent WORLD SERIES CRICKET PTY LIMITED . Sixteenth Respondent PUBLISHING AND BROADCASTING LIMITED Seventeenth Respondent ST.JOHN J. By an application dated 21 December, 1979 the Australian Broadcasting Commission sought, inter alia, interlocutory relief against the respondents in respect to an agreement entered into between the first fourteen respondents and the three remaining respondents whom I shall refer to as the personal respondents and the company respondents. That agreement, originally entered into on 30 May, 1979 and « - ./2 reaffirmed on 2] November, 1979, provided that the Australian Cricket Board, an unincorporated association, of which the personal respondents were members, granted to the company respondents the exclusive right to televise international cricket organised by that board. The rights are exclusive in the sense that no other television station can be granted such rights according to the terms of the agreement. The applicant amended the orderg sought against the respondents. They are as follows:- That the first to fourteenth respondents be restrained pending the determination of the proceedings or until further order from engaging in the following conduct namely: (a) (b) giving effect to Clauses 1 and 2 of the contract, arrangement or understanding between the first to fourteenth respondents and the fifteenth to seventeenth respondents dated the 30th May, 1979 as amended by the contract, arrangement or understanding of the 21st November, 1979 for the purpose of or with the likely effect of preventing restricting or limiting the supply of services namely Television Rights to Cricket Test Matches by the first to fourteenth respondents; giving effect to Clauses 1 and 2 of the contract, arrangement or understanding between the first to fourteenth respondents and the fifteenth to seventeenth respondents dated the 30th May, 1979 as amended by the contract, arrangement or understanding of the 21st November, 1979 to the extent that the said provisions have the purpose or effect or likely effect of substantially lessening competition within the description in Section 45 (3) and Section 45A (1) of the said Act. 2. That all the respondents be restrained pending the determination of the proceedings or until further order from engaging in the following conduct namely: aiding abetting counselling procuring inducing or attempting to induce any person to prevent restrict or limit the supply of services namely Television Rights to Cricket Test Matches by the first to fourteenth respondents. The evidence adduced in the applicant's case was that the applicant had for some number of years televised international cricket as a result of an agreement between it and the board whereby the board granted non-exclusive rights to the commission. It had a long tradition of televising and broad- casting"Y/radio commentaries on international and other cricket. During the summer of 1978/1979 there were two series of inter- national cricket played in Australia. The first was that organised by the Australian Cricket Board and the other was organised by World Series Cricket Pty Limited in Australia with the other company respondents. In the sense that there was competition in the presentation of international cricket it is clear that in that summer there was such competition. A lot of evidence was devoted to whether or not complete national /4 coverage of international cricket played this summer could be televised with the same coverage as the applicant previously gave. It seems clear that because of the exclusive right of the respondent company certain areas of the Commonwealth will not be able to see international cricket on television. However this is not what the case is about, nor is it about whether the viewing public can have the choice of cricket unadulterated by advertisements in preference to that which is interspersed with advertisements. The applicant ultimately based its case upon an alleged infringement of Section 45 of the Trade Practices Act 1974. At the outset it also based its case upon an alleged infringement of Section 47 of that Act but that claim was abandoned. Pursuant to Section 93 of the Act, the Australian Cricket Board lodged a notification the effect of which, if such notification was valid, was to exempt the contract of 30 May, 1979 until such time as the Trade Practices Commission ruled otherwise. In November, 1979 a similar arnlication was lodged by one of the respondent companies namely PBL Marketing Pty Limited. That application was based upon that agreement and the ratification of it on 21 November, 1979. On 4 December, 1979 the Trade Practices Commission issued a statement on the notifi- cations lodged by the Australian Cricket Board and PBL Marketing Pty Limited. That statement recited the receipt of the notifications, the parties to the agreement, the subject of such notifications, and its evaluation of the submissions made both by the parties notifying and the applicant. That Commission concluded that it "does not consider on present information that the PBL/ACB arrangements lessen competition" and concluded - . f5 -D- with the statement that both notifications were to stand. This history is not directly to the point so far as decision of the issues before this court is concerned but it is recited because some argument was based upon the relationship between Section 47 and Section 45 of the Act. The legal questions to be answered involve ascertaining the legislative intention expressed in Sections 45 and 47 of the Act. Neither section has been judicially explored in this country although foreign legislation upon which they are vartially based has been the subject of decision. Clearly, the two sections are intended to cover different conduct amounting to a restrictive trade practice. Counsel for the applicant contends that the same conduct can, in some circumstances, amount to a breach of both sections. As previously stated, the applicant has abandoned its claim based upon infringement of Section 47 and ultimately based its case upon infringement of Section 45. Its basic submission is that the agreement under consideration contains an "exclusionary provision" within the meaning of Sub-Section (2) of Section 45 and as defined in Section 4D of the Act. That latter section provides that the provision in the contract shall be taken to be exclusionary if the parties to the contract are competitive with one another and the provision has the purpose of preventing, constricting or limiting the supply of services to or from particular persons. To be noted in that definition is the tense in the phrase "are competitive" and the use of the word "purpose" which, because the word "effect" appears also in Section 45, prima facie they have different meanings: c.f. per Williams J. in Federal Commissioner of Taxation v. Newton (1957) 96 C.L.R. 577 at 630. International cricket, when it eccurs in Australia is seasonal. It is played from November to early February each summer. There were two series of international matches in the summer of 1978/1979, the last World Series match being played in early February, 1979. The question arises as to whether the parties to the contract were in competition in May,1979 or in early November, 1979 when the May agreement was ratified. The applicant's evidence included the tender of the submissions of the respondents to the Trade Practices Commission in support of the notifications referred to. Therein were statements of losses of a substantial nature incurred by the State cricket bodies in the 1978/ 1979 season of international cricket. Those losses replaced profit in previous years and represent lack of financial success of the international cricket organized by the Australian Cricket Board. The income from international cricket is split between the State bodies organizing cricket and the Players. These losses could raise doubts as to whether the Board would continue to organize and produce such cricket. There was also a statement by the company respondents of initial losses in production of World Series Cricket but with an exoressed anticipation of profit in the future. As these proceedings are interlocutory in nature, I accept the submission of respondents' counsel that I may have regard to those statements as having evidentiary value. The applicant also contended that the effect of the contract was to lessen competition. Because of the losses above referred to, I am in doubt as to whether or not competition existed at the relevant times. Further, when one has regard to the definition of competition in Sub-Section 3 of Section 45 it is "competition in any market". That raises the issue of what is the market with which the contract is concerned. Is it only the television rights to international cricket or is it the television rights to a wider field, for example international sport of some or all varieties or any sport providing an adequate spectacle to be televised? There was no evidence directed to establishing what the relevant market was. However, there was evidence that on receipt of information of the contract the applicant put in train efforts to secure the rights to televise other sporting programmes. In addition to relying upon the first arm of Section 45 (2)(a) the applicant also relied upon the alternative, namely Section 45 (2)(a)(ii) and further upon Section 45 (2)(b). This second arm includes the contract having the effect of substantially lessening competition. Again the statements in the submissions to the Trade Practices Commission and the doubt as to what constitutes the relevant market apply in both cases. The above-mentioned questions of law which were raised in themselves make this claim unsuitable for the grant of interlocutory relief. In addition, the applicant has not, in my view, satisfied the test laid down in Beecham Groun Limited v. Bristol Laboratories Pty Limited (1962) 118 C.L.R. 618 and applied by the Full Court of this court in World Series Cricket Pty Limited v. Parish 16 A.L.R. 181. I am not satisfied that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief. Were I to find differently on that issue I would have to consider the balance of convenience between the parties. Had I reached that point, I would have found in favour of the personal respondents upon the obvious injury by their loss of consideration provided for in the contract. On the other hand I would not have been inclined to favour the company respondents as their injury would have been largely self-inflicted by their failure to warn respondents that the exclusiveness of their television coverage was legally suspect as they admitted by their notifications to the Trade Practices Commission. The application for interlocutory relief is dismissed. a I certify that t223 and the 7 preceding paies are a true copy of the Reasons fcr Jucgmert herein of his Honour Mr. Justice &. Uduy, Associate ASL, (Ath Jen _. in wre ee > UPS eS.