pak JUDGMENT No. nS). Sot IN THE FEDERAL COURT OF AUSTRALIA ) ) WESTERN AUSTRALIA DISTRICT REGISTRY) No. WA G6l of 1984 ) GENERAL DIVISION ) BETWEEN GOLDEN WEST NETWORK LIMITED Applicant AND WESTERN AUSTRALIAN FOOTBALL LEAGUE CINC.) Respondent CORAM : Neaves J. DATE: 14 September 1984 REASONS FOR JUDGMENT NEAVES J. On 6 September 1984 I dismissed with costs an application by Golden West Network Limited ("the applicant") for an interlocutory injunction restraining Western Australian Football League (Inc.) ("the respondent"), its servants and agents, until 30 September 1984 "from contravening section 45 of the Trade Practices Act 1974 by continuing to give effect to any contract, arrangement or understanding or series of such contracts, arrangements or understandings with the Victorian Football League and/or Australian Television Program Sales whereby it has agreed, arranged or reached an understanding as the case may be that no television ridqhts may be sold or supplied to a person or persons in the State of Western Australia without the consent of the respondent to such sale or supply". I then stated that I would give reasons for my decision as goon as possible. I now set out those reagons. Proceedings were commenced in this Court by the applicant against the respondent on 19 July 1984 claiming damages pursuant to section 82, and an infunction pursuant to sub-section 80(1). of the Trade Practices Act 1974 ("the Act"). By its statement of claim the applicant gi laqed chat if wee fhe holder af commercial television licences for the South West, Lower Great Southern. Upper Great Southern and part of the Midlands areas of the State of Western Australia and that it wished to acquire from Australian Television Proaram Sales ("ATPS") as agent for the Victorian Football League ("VFL") the television rights to a weekly direct telecast in the areas served by its licences of a football match played in the State of Victoria each Saturday under the auspices of the VFL and known as "The Match of the Day". It was further alleged that, in contravention of section 45 of the Act, by a contract, arrangement or understanding made between the respondent, the VFL and ATPS the parties thereto had agreed, arranged or reached an understanding that no television rights might be sold or supplied to a person or persons in the State of Western Australia without the consent of the respondent to such sale or supply and that such contract, arrangement or understanding had the purpose or effect or was likely to have the effect of substantially lessening competition in the advertising market in the State of Western Australia. The respondent was alleged to have refused its consent to the purchase of the television rights referred to above with the consequence that ATPS. on the instructions of the VFL, had refused to sell or supply such television rights to the applicant. The matter came before Toohey J. on a directions hearing on 7 August 1984. The applicant sought such directions as would ensure that the application was heard at the earliest opportunity. In support of its request the applicant pointed to the fact that the final round of football matches to be held under the auspices of the VFL in 1984 was to commence on 8 September 1984 and it was said that the applicant wished to begin telecasting matches on that date if it were possible to have the proceedings determined before that date. The applicant recognised, however, that, even on the timetable it was proposing, the necessary interlocutory steps to prepare the matter for trial could not be completed before that date. No application was then made for interlocutory relief by way of injunction pending the hearing, the applicant being content to have the matter resolved on a substantive hearing in relation to which directions were then given. The respondent delivered a defence on 17 August 1984. In particular the respondent denied that any contract, arrangement or understanding existed as alleged (paragraph 6) and that such a contract, arrangement or undersanding would, if 1t existed, substantially lessen competition in the advertising market in Western Australia (paragraph 7). The respondent admitted that it opposed and had expressed its opposition to any proposal of the applicant which would involve the "live" direct telecast of the VFL "Match of the Day" to Western Australia (sub-paragraph 8(a)) but denied that such opposition constituted a "refusal of its consent" to any proposed purchase by the applicant of the television rights referred to in the statement of claim (sub-paragraph 8(b)). It did not admit that ATPS had refused to sell or supply to the applicant the television rights referred to; or (if it had so refused) that it did so on the "instructions of the VFL"; or (if the VFL did so instruct it, and if it did act on such instructions) that those instructions were given because of any alleged refusal by the respondent to consent to such a sale or supply (sub-paragraph 8(e)). The respondent asserted that its opposition to any proposal to telecast "live" in Western Australia the VFL "Match of the Day" was solely due to its concern that a direct effect would be to lower interest in and attendances at football matches conducted under the auspices of the respondent and would be to the ultimate detriment of the sport of Australian Rules Football in Western Australia (paragraph 10). On 22 August 1984 Mr Paul Bendat, the Managing Director of the applicant, wrote to ATPS and the VFL. The letter to ATPS read - "I refer to our telephone conversaton of 20 August 1984. -5- I believe that the denial by the W.A. League in paragraph 8(b) of their defence to our Federal Action now clears the way for us to telecast the remainina VFL matches. The denial of the W.A. League in that paragrah 1s a denial that their opposition constitutes a refusal of consent to GWN purchasing the program rights. In plain English this means that they have not refused their consent and we are free to take a live telecast of the matches. Please find enclosed copies of the W.A.F.L.'s defence to our Federal Court Action and our statement of claim. If at is CatJ all possible, GWN would very much like to commence telecasts on 1 September 1984. Your help would be very much appreciated." The letter to the VFL was in the following terms - "Please find enclosed copy of my letter of even date to Australian Television Program Sales the provider of the program VFL Match of the Day. We sincerely believe that the written statements of the W.A.F.L. contained in the Federal Court documents enclosed allow us now to telecast the V.F.L. matches. We would like to commence telecast on 1 September 1984, We would be grateful for your help." According to Mr Bendat, on 2 September 1984 the Network Manager of the applicant telephoned a Mr John Walker of the respondent when Mr Walker informed the Network Manager that there was no change in the respondent's position. I take that to mean that the respondent was still opposed to the applicant acquiring the television rights referred to in the statement of claim, Mr Bendat has also stated that on the same day he telephoned Mr Ron Booker of ATPS and asked him whether it was in order for the applicant to telecast VFL football. According to Mr Bendat. Mr Booker shortly afterwards telephoned Mr Bendat and informed him "that it was in order for the applicant to telecast VFL matches". On 5 September 1984 Mr Bendat was informed by telephone that a message had been sent by telex to himself and to Mr D. McDonald, the Station Manager of the applicant, by Mr Ron Casey of HSV-7, the holder of a commercial television licence in Melbourne with rights to telecast VFL football matches. The telex message read as follows - "I have been advised by VFL that they have been asked again by West Australian League not to allow live relay of Saturday matches to West Australia. I understood you had cleared with WA League. Please advise." On 6 September 1984 Mr Bendat replied by telex as follows - "Thank you for your telex of 5 September 1984. We believe that the actions of the WAFL have cleared the way for GWN to telecast the VFL live. As you know GWN has taken action against the WAFL in the Federal Court of Australia. In their statement of defence the WAFL have denied that - 1. Any contract arrangement or understanding exists whereby television rights for VFL matches cannot be supplied to GWN without WAFL consent (par.6). " 2. They have refused their consent if such contract arrangement or understanding does exist (par.8(b)). Both these written statements indicate to us that the way is clear for us to telecast VFL live. Full copies of these statements were delivered to ATPS -7- and Jack Hamilton on 23 August. We telephoned Mr Walker of WAFL who said 'Our position remains unchanged'. On 3 September 1984 these words were communicated to Ron Booker. We are very much appreciative of the assistance of Betty Hennigan and Ron Booker in this difficult matter. We are aware of the time you have now had to devote to it. Our intention 1s very simple. We only want to telecast to our viewing audience the very best programs in Australia. Could you please check with the VFL if the sale of program rights can now proceed. We would be grateful if you cotuld come back to us urgently. For ease of reference we have sent this telex to both Jack Hamilton and Peter Bowler of the WAFL." A copy of that message was sent by telex to the respondent and to the VFL. Following upon the conversation on 2 September 1984 between Mr Bendat and Mr Booker of ATPS when, according to Mr Bendat, Mr Booker stated that "it was in order for the applicant to telecast VFL matches", the applicant booked microwave link facilities to enable it to telecast the VFL "Match of the Day" on 8 September 1984. The cost to the applicant of making those arrangements was $2,250. The applicant also entered into arrangements with advertisers for the telecastng of adverisements during the telecast of the VFL match and commencing on 5 September 1984 1t gave publicity to the proposed telecast by advertising both on television and radio and by newspaper advertisement. The application for an interlocutory injunction was brought on at very short notice to the respondent which had no opportunity to consider the affidavits filed in support thereof or to place answering material before the Court. The application was made following the receipt by the applicant at about 1.30p.m. on 6 September 1984 of a message by telex from Mr Ron Casey of HSV-7 stating that HSV-7 was unable through 1ts agent ATPS to supply to the applicant the television rights to the VFL "Match of the Day" without the consent of the VFL and, as that consent had not been given, the television rights were not available to the applicant. Counsel for the applicant submitted that the material placed before the Court had established a prima facie case that an understanding of the kind pleaded in the statement of claim in fact existed between the respondent and the VFL and that that understanding was being given effect by the parties to it. It was said that such conduct amounted to a breach of section 45 of the Act and that, but for the renewed exercise by the respondent of its rights under that understanding by refusing to consent to the applicant acquiring the television rights it was seeking, the applicant would be entitled to those rights under its arrangement with ATPS. It is clear that up to 22 August 1984 the matter was proceeding in this Court on the basis that there would be an early trial of the substantive issues and that, in the meantime, the applicant would not be in a position to telecast "live" the VFL "Match of the Day". The applicant asserts that circumstances have changed warranting the intervention of the Court. But it is equally clear that, 1n so far as the circumstances have changed, those changes have been brought about by the applicant itself. There has been no change in the attitude of the respondent - it opposes and continues to oppose the acquisition by the applicant of the relevant televison rights - and that attitude has been at all times well known to the applicant. The clear inference from the material before the Court is that ATPS was induced to agree to make available to the applicant the televison rights to the VFL "Match of the Day" to be played on 8 September 1984 and subsequent Saturdays by reason of the applicant misrepresenting to ATPS and the VFL in its letters dated 22 August 1984 that the way had been cleared for the applicant to telecast the remaining VFL matches. It is true, as counsel for the applicant asserted, that the letters made plain that the applicant was relying on the defence filed on behalf of the respondent. It is also true that a copy of the statement of claim and a copy of the defence were enclosed with the letters. But the letters, while expressly referring to those parts of the defence which the applicant regarded as supporting the position it was representing to ATPS and the VFL, failed to draw the attention of the recipients in any way to the paragraph of the defence in which the respondent reiterated its -10- opposition to the grant of the television rights. I am not prepared to assume that, had the applicant frankly drawn that paragraph of the defence to the notice of the recipients of the letters. 1t would have had the favourable response from Mr Booker which, according to Mr Bendat. was received on 2 September 1984 and which provides the basis for the present application. In my opinion that conduct on the part of the applicant disentitled it to the interlocutory relief sought even if I had been disposed otherwise to grant it. A further matter which weighed with me in reaching my decision upon the application was that to grant the relief sought would have effectively decided in favour of the applicant the issues between the parties at least so far as the 1984 VFL football season is concerned. I was also of opinion that the applicant had not demonstrated that it could not be compensated adequately by an award of damages in respect of its failure to secure the rights to telecast the VFL "Match of the Day" on each Saturday between the date of the hearing and 30 September 1984 in the event that it succeeded on the trial of the action in establishing that that failure resulted from a breach by the respondent of section 45 of the Trade Practices Act 1974. -ll- I should add that. even if I had been minded to grant to the applicant interlocutory relief, I would not have been prepared to grant an injunction in the broad and general terms of that sought in the notice of motion. For the above reasons I dismissed the application with costs. I certify that this and the preceding ten (10) pages are a true copy of the Reasons for Judament herein of the Honourable Mr Justice Neaves. Hogtown . Dated: Cathy Hes i4 Sept Ita.