FEDERAL COURT OF AUSTRALIA Seven Network Limited v News Limited (No 6) [2005] FCA 599 PRACTICE and PROCEDURE – interrogatories – whether vexatious or oppressive – interrogatories designed to verify the sufficiency of another party's discovery – no evidence that the other party's discovery was insufficient – Federal Court Rules (Cth) O 16 rr 1, 2, 6, 8 Federal Court Rules (Cth) O 16 rr 1, 2, 6, 8 Potter's Sulphide Ore Treatment Ltd v Sulphide Corporation Ltd (1911) 13 CLR 101 cited Bailey v Beagle Management Pty Ltd (2001) 105 FCR 136 cited Hamilton v Oades (1988) 166 CLR 486 cited SEVEN NETWORK LIMITED and ANOR v NEWS LIMITED and ORS NSD 1223 of 2002 SACKVILLE J SYDNEY 13 MAY 2005 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1223 of 2002 BETWEEN: SEVEN NETWORK LIMITED (ACN 052 816 789) FIRST APPLICANT C7 PTY LIMITED (ACN 082 901 442) SECOND APPLICANT AND: NEWS LIMITED (ACN 007 871 178) FIRST RESPONDENT SKY CABLE PTY LIMITED (ACN 069 799 640) SECOND RESPONDENT TELSTRA MEDIA PTY LIMITED (ACN 069 279 027) THIRD RESPONDENT FOXTEL MANAGEMENT PTY LIMITED (ACN 068 671 938) FOURTH RESPONDENT TELSTRA CORPORATION LIMITED (ACN 051 775 556) FIFTH RESPONDENT TELSTRA MULTIMEDIA PTY LIMITED (ACN 069 279 072) SIXTH RESPONDENT PUBLISHING AND BROADCASTING LIMITED (ACN 009 071 167) SEVENTH RESPONDENT NINE NETWORK AUSTRALIA PTY LIMITED (ACN 008 685 407) EIGHTH RESPONDENT SPORTS INVESTMENTS AUSTRALIA PTY LIMITED (ACN 065 445 418) NINTH RESPONDENT NETWORK TEN PTY LIMITED (ACN 052 515 250) TENTH RESPONDENT AUSTRALIAN FOOTBALL LEAGUE (ACN 004 155 211) ELEVENTH RESPONDENT AUSTRALIAN RUGBY FOOTBALL LEAGUE LIMITED (ACN 003 107 293) TWELFTH RESPONDENT NATIONAL RUGBY LEAGUE INVESTMENTS PTY LIMITED (ACN 081 778 538) THIRTEENTH RESPONDENT NATIONAL RUGBY LEAGUE LIMITED (ACN 082 088 962) FOURTEENTH RESPONDENT FOXTEL CABLE TELEVISION PTY LIMITED (ACN 069 008 797) FIFTEENTH RESPONDENT OPTUS VISION PTY LIMITED (ACN 066 518 821) SIXTEENTH RESPONDENT AUSTAR UNITED COMMUNICATIONS LIMITED (ACN 087 695 707) SEVENTEENTH RESPONDENT AUSTAR ENTERTAINMENT PTY LIMITED (ACN 068 104 530) EIGHTEENTH RESPONDENT IAN HUNTLY PHILIP NINETEENTH RESPONDENT NEWS PAY TV PTY LIMITED (ACN 085 095 487) TWENTIETH RESPONDENT PBL PAY TV PTY LIMITED (ACN 084 940 367) TWENTY-FIRST RESPONDENT SINGTEL OPTUS PTY LIMITED (ACN 052 833 208) TWENTY-SECOND RESPONDENT JUDGE: SACKVILLE J DATE OF ORDER: 13 MAY 2005 WHERE MADE: SYDNEY THE COURT ORDERS: 1. The applicants' motion dated 30 March 2005 be dismissed. 2. The applicants pay the third respondent's costs of the motion. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1223 of 2002 BETWEEN: SEVEN NETWORK LIMITED (ACN 052 816 789) FIRST APPLICANT C7 PTY LIMITED (ACN 082 901 442) SECOND APPLICANT AND: NEWS LIMITED (ACN 007 871 178) FIRST RESPONDENT SKY CABLE PTY LIMITED (ACN 069 799 640) SECOND RESPONDENT TELSTRA MEDIA PTY LIMITED (ACN 069 279 027) THIRD RESPONDENT FOXTEL MANAGEMENT PTY LIMITED (ACN 068 671 938) FOURTH RESPONDENT TELSTRA CORPORATION LIMITED (ACN 051 775 556) FIFTH RESPONDENT TELSTRA MULTIMEDIA PTY LIMITED (ACN 069 279 072) SIXTH RESPONDENT PUBLISHING AND BROADCASTING LIMITED (ACN 009 071 167) SEVENTH RESPONDENT NINE NETWORK AUSTRALIA PTY LIMITED (ACN 008 685 407) EIGHTH RESPONDENT SPORTS INVESTMENTS AUSTRALIA PTY LIMITED (ACN 065 445 418) NINTH RESPONDENT NETWORK TEN PTY LIMITED (ACN 052 515 250) TENTH RESPONDENT AUSTRALIAN FOOTBALL LEAGUE (ACN 004 155 211) ELEVENTH RESPONDENT AUSTRALIAN RUGBY FOOTBALL LEAGUE LIMITED (ACN 003 107 293) TWELFTH RESPONDENT NATIONAL RUGBY LEAGUE INVESTMENTS PTY LIMITED (ACN 081 778 538) THIRTEENTH RESPONDENT NATIONAL RUGBY LEAGUE LIMITED (ACN 082 088 962) FOURTEENTH RESPONDENT FOXTEL CABLE TELEVISION PTY LIMITED (ACN 069 008 797) FIFTEENTH RESPONDENT OPTUS VISION PTY LIMITED (ACN 066 518 821) SIXTEENTH RESPONDENT AUSTAR UNITED COMMUNICATIONS LIMITED (ACN 087 695 707) SEVENTEENTH RESPONDENT AUSTAR ENTERTAINMENT PTY LIMITED (ACN 068 104 530) EIGHTEENTH RESPONDENT IAN HUNTLY PHILIP NINETEENTH RESPONDENT NEWS PAY TV PTY LIMITED (ACN 085 095 487) TWENTIETH RESPONDENT PBL PAY TV PTY LIMITED (ACN 084 940 367) TWENTY-FIRST RESPONDENT SINGTEL OPTUS PTY LIMITED (ACN 052 833 208) TWENTY-SECOND RESPONDENT JUDGE: SACKVILLE J DATE: 13 MAY 2005 PLACE: SYDNEY REASONS FOR JUDGMENT The Motion 1 By a notice of motion filed on 30 March 2005, the applicants seek, pursuant to Federal Court Rules ('FCR'), O 16 r 8(1)(a), an order that the third respondent ('Telstra Media') make further answers to interrogatories 4 and 5 specified in the applicants' Notice to Answer Interrogatories dated 18 January 2005 ('the Notice'). The Rules 2 FCR, O 16 deals with the subject of interrogatories. The Court may give leave to any party to file and serve on any other party a notice requiring the party served to answer interrogatories 'relating to any matter in question between the interrogating party and the party served': r 1(1). A party required to answer interrogatories must do so by filing and serving a statement in accordance with r 6 and an affidavit verifying the statement: r 2(2). The statement in answer to interrogatories must deal with each interrogatory specifically, either by answering the substance of the interrogatory without evasion or by objecting to answer the interrogatory on one of three specified grounds and briefly stating the facts on which the objection is based: r 6(2). The three grounds of objection are identified in r 6(3), as follows: '(a) … that the interrogatory does not relate to any matter in question between him and the party requiring the answer; (b) that the interrogatory is vexatious or oppressive; and (c) privilege'. 3 FCR, O 16 r 8(1) provides as follows: 'Where a party fails to answer an interrogatory sufficiently, the Court may: (a) if he has made an insufficient answer, order him to make a further answer verified by affidavit in accordance with rule 7; (b) …' The Interrogatories 4 Interrogatories 4 and 5 and the answers made thereto by Telstra Media are as follows: '4A Say: (a) was there in the period 1 April 2000 to 31 August 2000 prepared or drafted a board paper or board papers of the Fourth Respondent [Foxtel] which referred to C7? (b) if the answer to paragraph (a) above is yes, say: (i) where such document or documents may now be inspected or in whose possession it or they is or are; (ii) if any such document has been lost or destroyed, what was the substance of its contents so far as it related to C7. 4B (a) [Telstra Media] objects to the interrogatory, pursuant to Order 16 rule 6(3), on the grounds that: (i) it does not relate to any matter in issue in the proceedings; (ii) it is vexatious, in that: (1) It is fishing; and/or (2) It relates to the contents of a document that falls or would fall within a category of documents which has been the subject of verified discovery and seeks to cross-examine the Third Respondent on its affidavit of documents. (b) Not applicable. 5A Say: (a) whether you saw, read or learned of the existence of the preparation or drafting in the period 1 April 2000 to 31 August 2000 of a board paper or board papers of [Foxtel] which referred to C7? (b) if the answer to paragraph (a) above is yes, say to the extent your knowledge permits: (i) where such document or documents may now be inspected or in whose possession it or they now is or are; (ii) if any such document has been lost or destroyed, what was the substance of its contents so far as it related to C7. 5B (a) [Telstra Media] objects to the interrogatory, pursuant to Order 16 rule 6(3), on the grounds that: (i) it does not relate to any issue in the proceedings; (ii) it is vexatious, in that: (1) It is fishing; and/or (2) It relates to the contents of a document that falls or would fall within a category of documents which has been the subject of verified discovery and seeks to cross-examine the Third Respondent on its affidavit of documents. (b) Not applicable'. reasoning 5 Interrogatories 4 and 5 seek information about board papers, not generated by any of the Telstra respondents, but by Foxtel. If Telstra Media has any of the information sought it will presumably be because Telstra had representatives on the Foxtel board at the relevant time. 6 There is little doubt that the information sought by the interrogatories could be material to an issue in the proceedings: Potter's Sulphide Ore Treatment Ltd v Sulphide Corporation Ltd (1911) 13 CLR 101, at 111, per Griffith CJ. I do not think that there is any substance to Telstra Media's contention that the interrogatories are vexatious because they constitute 'fishing': cf Bailey v Beagle Management Pty Ltd (2001) 105 FCR 136, at 143-144 [25]-[28], per curiam. Nor do I think that it is a valid objection that the applicants and Telstra had agreed as between themselves to limit the categories of discovery so as to exclude documents of the kind referred to in the interrogatories. 7 The difficulty facing the applicants, in my opinion, is not only that they have administered the same interrogatories to respondents other than Telstra Media, but that Foxtel has already given discovery of its board papers (including drafts) which refer to C7. Indeed, Foxtel's responses to the interrogatories acknowledge that there were indeed documents of the kind identified in Interrogatory 4(a), but state that 'the documents have been discovered in this proceeding'. 8 Mr Sheahan SC, who appeared with Mr Darke for the applicants, suggested from the bar table that there might be some reason to think that some of Foxtel's board papers referring to C7 had been destroyed. He accepted, however, that there was no evidence to this effect. Nor was there any evidence that the applicants have taken any steps to ensure that Foxtel's discovery has been complete: cf FCR, O 15 r 8 (providing for an order for particular discovery). 9 The terms 'vexatious' and 'oppressive' are apt to refer to conduct that is unfairly burdensome or is productive of serious and unjustified trouble: Hamilton v Oades (1988) 166 CLR 486, at 502, per Deane and Gaudron JJ. In my opinion, Interrogatories 4 and 5 directed to Telstra Media can be described as oppressive in this sense. 10 On the face of the material before me, the applicants have already gained the right to inspect all documents identified in Interrogatories 4 and 5. If they have any doubts as to whether Foxtel has made full discovery of the relevant documents, they have a remedy available by recourse to FCR, O 15 r 8. The interrogatories administered to Telstra Media appear, in effect, to be designed to verify the sufficiency of Foxtel's discovery. In the absence of any evidence that Foxtel's discovery is insufficient, or that inquiries of Foxtel are likely to prove fruitless, the interrogatories are, in my opinion, oppressive. 11 For these reasons, I propose to dismiss the motion. The applicants should pay Telstra Media's costs of the motion. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville. Associate: Dated: 13 May 2005 Counsel for the Applicants: JC Sheahan SC with MJ Darke Solicitor for the Applicants: Freehills Counsel for the Third Respondent: TD Castle Solicitor for the Third Respondent: Mallesons Stephen Jaques Date of Hearing: 11 May 2005 Date of Judgment: 13 May 2005