Foxtel Management Pty Ltd v Seven Cable Television Pty Ltd [2000] FCA 1159

FEDERAL COURT OF AUSTRALIA

Foxtel Management Pty Ltd v Seven Cable Television Pty Ltd

[2000] FCA 1159

CONTRACT - formation - whether agreement reached on terms - parties negotiating complex broadcasting contract under joint venture arrangement - whether relationship of fiduciary nature resulted - whether had reached agreement on terms of an exclusive relationship - whether uncertainty in terms and from negotiations - whether indicates parties had not reached agreement at given date - whether agreement unenforceable - alleged contract executed on date parties commenced broadcasting business - parties continued negotiations regarding terms of business - parties later executed a contract covering the same subject matter - whether variation or recission of any prior contract TRADE PRACTICES - telecommunications - access regime created by Part XIC of Trade Practices Act 1974 - s 152AR(4)(d) creates a limitation on obligations under access regime where granting access would had the effect of depriving a person of a "protected contractual right" - whether parties to broadcasting joint venture had a contract giving rise to a "protected contractual right" as at statutory date nominated - whether grant of access would have the effect of "depriving" any party of a "protected contractual right" WORDS AND PHRASES - 'substantially', 'deprive', 'effect' Trade Practices Act 1974 (Cth) Telecommunications Act 1991 (Cth) Radiocommunications Act 1992 (Cth) Telecommunications Act 1991 Trade Practices Amendment (Telecommunications) Act 1997 (Cth) Telecommunications (Transitional Provisions and Consequential Amendments) Act 1997 (Cth) Competition Policy Reform Act 1995 Telecommunications (Service Providers Class Licence) Direction No. 1 of 1995 Seven Cable Television Pty Ltd v Telstra Corporation Ltd [2000] 171 ALR 89 FOXTEL Management Pty Ltd v Australian Competition & Consumer Commission [2000] FCA 589 Amadio Pty Ltd v Henderson (1998) 81 FCR 149 United Dominions Corporation Ltd v Brian Pty Ltd (1985) 157 CLR 1 Masters v Cameron (1954) 91 CLR 353 Liverpool City Council v Irwin [1977] AC 239 Trentham (G Percy) Ltd v Archital Luxfer Ltd [1993] 1 Lloyd's Rep 25 Commissioner of Taxation v Sara Lee Household & Body Care (Australia) Pty Ltd (2000) 74 ALJR 1094 Re Black Bolt & Nut Association of Great Britain's Agreement [1961] 2 All ER 316 Stenhouse Ltd v Phillips [1974] AC 390 Sinclair, Scott & Co. Ltd v Naughton (1929) 43 CLR 310 G R Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631 Pagnan S.p.A. v Feed Products Ltd (1987) 2 Lloyd's Rep 601 Georgiadis v Australia & Overseas Telecommunications Corporation (1993-1994) 179 CLR 297 Belfast Corporation v O D Cars Ltd [1960] AC 490 Trade Practices Commission v Tooth & Co Ltd (1979) 142 CLR 397 Masters v Cameron (1954) 91 CLR 353 Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 Seddon and Ellinghaus, Cheshire & Fifoot's Law of Contract, 7th Aust ed, 1997 Carter and Harland, Contract Law in Australia, 3rd ed, 1995