Seven has appealed against Sackville J's decision in Seven Network Limited & Anor v News Limited & Ors  FCA 1062 (the C7 Decision). The appeal signals the possibility that the case already described by the judge as "mega-litigation" will continue well into the future.
In July, Sackville J dismissed all of Seven's claims in the case it brought in connection with the failure of its related business C7, a producer and distributor of sports channels for pay television platforms. Seven had alleged that the Respondents, other participants in the broadcasting industry, engaged in anti-competitive conduct in contravention of the Trade Practices Act.
Seven's key claims in the original proceedings were made pursuant to sections 45 and 46 of the Trade Practices Act. In dealing with Seven's claims, Sackville J addressed a number of issues regarding the application of those sections, clarifying their operation in a number of respects. In particular:
The time at which any substantial lessening of competition is assessed - The likelihood that an agreement will substantially lessen competition must be assessed at the time of the alleged contravention. Seven is not appealing this finding.
Whether an impossible purpose can give rise to a contravention - In order to have a purpose of substantially lessening competition, the object sought to be achieved must be capable of substantially lessening competition in an actual market. Seven is appealing this finding.
Who must have a prohibited purpose - For a contravention of section 45(2) to have occurred by reason of a purpose of substantially lessening competition, each of the parties responsible for including the relevant provision in an agreement must have the subjective purpose of substantially lessening competition. Seven is appealing this finding.
When conduct will amount to a taking advantage of market power - The relevant question is whether the alleged contravener, had it lacked power in the relevant market, could have conducted itself in the same way. Seven is not appealing this finding.
Ultimately, Sackville J found that Seven failed to make out any of the alleged contraventions. Seven's appeal is broad ranging and relates to several of Sackville J's conclusions, regarding both principles about how the Trade Practices Act should be applied, and findings of fact.
Gilbert + Tobin acts for the PBL respondents in the C7 proceedings.
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