Seven Network Limited v News Limited

(b) Proceedings No. N1088 of 1999 in the Federal Court of Australia.

(c) Proceedings No. N1150 of 1999 in the Federal Court of Australia.

(d) Proceedings No. N309 of 2000 in the Federal Court of Australia.

(e) Proceedings No. N324 of 2000 in the Federal Court of Australia.

(f) Proceedings No. N508 of 2000 in the Federal Court of Australia.

(g) Proceedings No. N529 of 2000 in the Federal Court of Australia.

(h) Proceedings No. N527 of 2000 in the Federal Court of Australia.

(i) Proceedings No. N528 of 2000 in the Federal Court of Australia.

(j) Proceedings No. S272 of 2000 in the Federal Court of Australia.

(k) Proceedings No. S273 of 2000 in the Federal Court of Australia.

(l) Proceedings No. S227 of 2000 in the Federal Court of Australia.

(m) Proceedings No. S228 of 2000 in the Federal Court of Australia.

(n) Arbitrations by the ACCC under Division 8 of Part XIC of the TPA arising from C7's written notifications of access disputes to the ACCC dated 29 August 2000, 30 August 2000, 31 August 2000 and 1 September 2000, the parties to which are C7, Foxtel (Telstra Media and Sky Cable), Foxtel Management Pty Limited, Foxtel Cable Television and Telstra Multimedia Pty Limited.".

23 Mr Jarman is a legal practitioner who has held a practising certificate in Victoria since 1997 and a practising certificate in New South Wales since 2004. He is employed by Seven Network (Operations) Limited, a wholly owned subsidiary of the First Applicant and has been so employed as an in-house lawyer for the First Applicant or one of its subsidiaries since prior to 2001. 24 In the period January 2001 - October 2002 Mr Jarman was Legal Counsel, New Media and Investments for the group of companies owned by the First Applicant. As such Mr Jarman was legal counsel in respect of all activities conducted by the Seven Network Group of companies ("Seven") other than the core business of free-to-air television. 25 Mr Jarman was legal counsel in respect of all aspects of the pay television business of the Applicants. As such he was responsible for providing the Applicants and i7 Limited, a subsidiary of the First Applicant, with legal advice on matters as they arose and for drafting, and at times providing legal assistance in the negotiation of commercial agreements on behalf of those parties. Mr Jarman reported directly to Mr Steven Wise who was the Chief Executive Officer of i7 Limited and also the executive in charge of pay television for Seven. 26 As at 2 May 2000 Mr Jarman described himself as "Legal Counsel - i7" and also as "Commercial Manager - Seven Resources". In evidence he indicated that he filled the role of Commercial Manager - Seven Resources for a very short period of time. He says that it became evident very very quickly that his role would be that of a legal adviser, not that of a commercial manager. 27 It seems that Mr Jarman's role changed somewhat in mid March 2001. On 13 March 2001 Mr Wise sent an email to Mr Stokes, the executive chairman of the First Applicant, and others including Mr Sweeney, a partner at Freehills who were the solicitors for Seven, under the heading "Access" in which he said:- "I have discussed with Kerry the need to have one person in Seven to co-ordinate all access issues for C7. This will include Interim determination, Appeals, Access to other platforms and Final determination. Mark Jarman will be given the task of project managing this. This should … add resource and skills to this important area. Please help Mark as he gets to speed with the issues. What is important is that Mark is included in all communication and that he is in a position to manage Seven's interface with Freehills etc. Mark will have as an important role the requirement to involve this group in the issues and decisions that will be critical to our success." 28 A copy of Wise's email which was directed to Kerry Stokes, Peter Gammell, Maureen Plavsic, Robin Waters, Shane Wood, Catherine Rothery, Desmond Sweeney and Chris North was also sent to Mr Jarman himself. 29 In an affidavit sworn 20 October 2005 Mr Jarman has said:- "… 6. As part of my role as Legal Counsel, New Media and Investments, from March 2001 I assumed primary responsibility for advising and assisting C7 in relation to its requests for access to the Foxtel broadband cable pursuant to Part XIC of the Trade Practices Act 1974 (Cth) (TPA), as well as C7's access strategy more generally. C7 had requested from the Foxtel Partnership (Sky Cable Pty Limited and Telstra Media Pty Limited) Foxtel Management and Telstra Multimedia Pty Limited the provision of analogue broadcast carriage services pursuant to Part XIC of the TPA to enable C7 to provide a retail pay television service on the Foxtel cable network, which requests were the subject of disputes. … 7. In addition, …, C7 was exploring means by which it could obtain wider access to pay television delivery services, I assumed primary responsibility for the pursuit of C7's wider access strategy. … 12. Seven retained Freehills to act for it in relation to the Access Disputes, and in relation to C7's wider access strategy I assumed the following roles, as part of my role as legal counsel to New Media and Investments in relation to the Access Disputes and C7's wider access strategy: (a) liaising with Seven's external legal advisors, Freehills; and (b) providing advice to Seven on legal issues relating to the Access Disputes and wider access strategy, together with all other legal matters concerning the C7 business on which I was requested to provide advice." 30 Under cross-examination Mr Jarman expressed his belief that his project management function was a legal function. He said that he would not have considered himself as a "Project Manager". He said that the way that he carried out the project management role was at all times as "legal counsel". 31 When asked in re-examination by Mr Hughes QC what the basis of his belief was that his project management function was a legal function, Mr Jarman said:- "The basis of that belief was born out of the role to begin with and the function that I served within the Seven Network in the New Media Investment side of the business and more particularly in relation to this particular issue which was the access arbitration that any function would be in order to further Seven's position in the access arbitration." 32 When asked by Mr Hughes whether or not he allowed his commercial function to influence the substance of any legal advice that he gave Mr Jarman said, emphatically, "Definitely not". Furthermore, when asked whether or not he would, in the circumstances in which he served as legal counsel, allow his professional legal opinion on matters upon which he was giving advice to be qualified by the wishes of his employer, Mr Jarman said, "No, I would not". 33 Notwithstanding Mr Jarman's assertion that everything that he did was in fulfilment of a legal function, there were occasions when he conceded that part of his purpose in preparing documents was to fulfil his function as project manager for all access issues for the Applicants, but proceeded to qualify this concession by adding words such as "a very small part" or "a minor part". 34 In relation to the 18 specific documents, the production of which is sought by the Telstra Respondents, Mr Jarman has sworn as follows:- Document No 1 "This document was created by me. My dominant purpose in creating the masked portion of this document was to provide confidential legal advice to Seven about the ACCC's interim determination." Document No 2 "This document was created by me. My dominant purpose in creating the masked portion of this document was to provide confidential legal advice to Seven and to relay advice provided by Freehills, about the Access Disputes." Document No 3 "This document was created by me. My dominant purpose in creating the masked portion of this document was to provide confidential legal advice to Seven about the ACCC's interim determination." Document No 4 "This is a document created by me. My dominant purpose in creating the masked portion of this document was to summarise and communicate to executives of Seven confidential legal advice provided to me by Freehills about the Access Arbitration and the Optus Channel Supply Agreement, together with providing my own independent and confidential legal advice on those issues." Document No 5 "This document was created by me. My dominant purpose in creating the masked portion of this document was to provide confidential legal advice to Seven about the ACCC's final determination." Document No 6 "This document was created by me. My dominant purpose in creating the masked portion of this document was to summarise and communicate my confidential legal advice to Seven regarding the approach to be adopted by Seven with regard to the ACCC's investigation into the Foxtel-Optus proposal and certain undertakings sought by the ACCC from Foxtel and Optus Vision." Document No 7 "This document contains a series of emails for the purpose of Freehills providing confidential legal advice to Seven about access to non-declared services." Document No 8 "This document was created by me. My dominant purpose in creating this document was to provide information to Ms McGregor in her capacity as a partner or (sic) Freehills and Seven's legal advisor for the purpose of Ms McGregor providing confidential legal advice to Seven about access requests." Document No 9 "This document was created by Mr Chris North of Wattle Park. This document contains a series emails (sic) for the purpose of Freehills providing confidential legal advice to Seven about access to non-declared services." Document No 10 "This document was created by Ms McGregor in her capacity as a partner of Freehills and legal advisor to Seven. This document contains a series of emails for the purpose of Freehills providing confidential legal advice to Seven about access to non-declared services." Document No 11 "This document was created by Mr Sweeney in his capacity as a partner of Freehills and legal advisor to Seven. The document requests information and instructions from Seven about access and pricing for the purpose of providing confidential legal advice and conducting Access Disputes ." Document No 12 "This document was created by me in response to a request for information and instructions from Mr Sweeney in his capacity as a partner of Freehills, and legal advisor to Seven. The dominant purpose of the document is to provide instructions and information to Freehills for the purpose of Mr Sweeney giving confidential legal advice to Seven about the Access Disputes." Document No 13 "This document was created by me. My dominant purpose in creating this document was to provide Mr Gammell, Mr Wise, Mr Robin Waters, Mr North and Mr Sweeney with a copy of a paper I had prepared for the dominant purpose of providing confidential legal advice to Seven in relation to the Access Disputes.." Document No 14 "This document was created by Mr Paul Wylie. The document provides information to Mr Sweeney in his capacity as a partner of Freehills and legal advisor to Seven, for the purposes (sic) of Mr Sweeney giving confidential legal advice to Seven about a submission by Seven to the ACCC." Document No 15 "This document contains a series of emails for the purpose of Freehills providing confidential legal advice to Seven about non-declared access." Document No 16 "This document contains a series of emails for the purpose of Freehills providing confidential legal advice to Seven about a submission by Seven to the ACCC on non-declared services and comments are provided." Document No 17 "This document was created by me. My dominant purpose in creating this document was to obtain confidential legal advice from Freehills about digital non-declared services. Document No 18 "This document was created by me. My dominant purpose in creating the masked portion of this document was to provide confidential legal advice from Freehills on a question of contractual interpretation, and to provide Seven with my confidential legal advice about Access Disputes." 35 The context in which the question of legal professional privilege falls to be determined on the present motion in relation to the 18 documents mentioned above is to be found in the bundle of documents originally marked for identification 1 and now comprising Exhibits TA4 - TA8 in the current application. 36 On 9 October 2000 Mr Sweeney of Freehills wrote a letter to the Australian Competition and Consumer Commission ("the ACCC") concerning the Second Applicant's access disputes which included the following:- "We refer to our prior correspondence concerning the notification of access disputes between C7 Pty Limited ('C7') and Telstra Multimedia Pty Limited ('Telstra Multimedia'), the partners of the FOXTEL partnership (being Telstra Media Pty Limited, Sky Cable Pty Limited and Foxtel Management Pty Limited, as their agent), Foxtel Cable Television Pty Limited and Foxtel Management Pty Limited (collectively 'Foxtel'). Those access disputes concern the provision of analogue subscription television broadcast carriage services and related services by Telstra Multimedia and Foxtel to C7 to permit C7 to broadcast a total of eight pay TV channels. C7 requests that the ACCC immediately proceed to make an interim determination, pursuant to section 152CPA of the Trade Practices Act, in respect of analogue subscription television broadcast carriage services and related services for the purpose of permitting C7 to broadcast two pay TV channels to carry its C7 Sports channels. … C7 wishes to proceed to a final determination in respect of both these two pay TV channels and the additional six pay TV channels in respect of which it has sought access. However, in light of the urgency in respect of the C7 Sports channels, Seven submits that it is appropriate that an interim determination should be made on an urgent basis in respect of two pay TV channels in order to permit Seven to broadcast the C7 Sports channels on the Telstra Multimedia/Foxtel broadband cable network. C7 accordingly requests that the ACCC consider making an interim determination in respect of these two channels as soon as possible. …" 37 In a report entitled "C7 on Foxtel" dated 17 March 2001 the following appeared under the heading "Budget Notes"/"Access Costs":- "Will not be known until the ACCC's Interim Determination is handed down. The draft Initial Determination puts the carriage costs at $700,000 per channel per year but Freehills advise that this was too high relative to what Foxtel is paying Telstra in real terms. Freehills suggested this fee should be $200,000 per channel per year. Not surprisingly, Foxtel and Telstra say the fee should be far greater than $700,000 per channel per annum. The Interim determination raises the possibility that Telstra/Foxtel may be able to charge extra for supplying 'ancillary services' (presumably billing information and call centre services) to C7 - hence the separate estimate of extra costs for these services." 38 It would appear that on 26 March 2001 the ACCC sent a facsimile to Freehills advising that it had decided to issue an interim determination in C7's dispute with Telstra Multimedia in relation to analogue subscription television broadcast carriage service. This followed a hearing in respect of the Commission's draft interim determination of 22 December 2000 which took place on 19 March 2001. The ACCC's advice included:- "The making of an interim determination is subject to objection from C7 under s152CPA(3) of the Act. C7 has seven days from the date of this letter to lodge an objection. … … A number of changes have been made to the draft interim determination, largely in relation to the price C7 must pay to acquire access and in the provision of ancillary services to C7. With regard to price, the Commission has decided to depart from the methodology adopted in the previous draft in relation to the per channel price and it has also determined that an access charge should apply to the set top units. … … The Commission is continuing to examine submissions, particularly in relation to pricing, for the purpose of making a final determination, and will contact the parties on further processes in relation to the making of a final determination in due course. …" 39 The ACCC's interim determination included:- "10. C7 must pay to Telstra $2.3 million (GST exclusive) per channel per year (to be pro rated for any part of a year). Such payments are to be made by equal monthly payments, fourteen days in arrears. 11. C7 must pay to Foxtel 5% of $13.60 (GST exclusive) per subscriber per month for the shared use by that subscriber of the set-top unit and fly-cables owned or leased by Foxtel. Such payments are to be made fourteen days in arrears. …" 40 Document number 2 the production of which is sought appears to be a six page memorandum created on 19 March 2001 at 5.09 pm entitled: "Seven Network Limited Board Update C7 - Foxtel/Telstra Access Dispute March 2001" It purports to be a document brought into existence by "Steve Wise" but Mr Jarman says that he was its author. 41 Somewhat curiously the document commences with a statement of its "Purpose' as follows:- "This paper is a confidential and privileged document which has been prepared solely for the purpose of the board of directors of Seven Network Limited in connection with the dispute between C7 and Foxtel, Telstra Corporation, Telstra Multimedia, News Corporation and News Limited concerning C7's attempt to gain access to the Foxtel/Telstra broadband cable ('Cable')." 42 It would appear that a draft of this update was circulated by Mr Jarman to Mr Kerry Stokes and Mr Peter Gammell with copies to Mr Steven Wise and Judith Howard at 9.07 am on 26 March 2001 under cover of an email headed "C7 - ACCC Access" reading:- "Kerry and Pete At Steve's request, please find attached a draft of the Update Paper for the SNL Board for your consideration and comment. If the Paper is satisfactory, I suggest that the Paper be forwarded to each of the Directors in preparation for Friday's Board Meeting." 43 Mr Jarman has suggested that his inquiry directed to Mr Stokes and Mr Gammell was not to obtain their approval for his formulation of the update paper but rather to ensure that it dealt with all relevant issues. 44 Document number 1 appears to be a two page document which, again, Mr Jarman says he prepared for Mr Wise entitled: "Seven Network Limited Board Supplement C7 - Foxtel/Telstra Access Dispute March 2001" 45 Once again this document commences with a statement that it is "a confidential and privileged document". 46 It would appear that on 26 March 2001 at 4.11 pm Mr Gammell responded to Mr Jarman's email of 9.07 am on that day saying, inter alia:- "I think that the access paper is a fair summary of the current position. My only comment is that we have not spelled out very clearly how the economics of the C7 service could look over the next year or in the future years. Whilst I appreciate that we have not worked up a plan I believe that it is important the Board understands that this is not looking like a 'profitable' venture at this time. Unfortunately in order to maintain our position in the market we have to continue to pursue our access claims. Only when we know the terms of trade will we be in a position to actually build a long term business plan. However we should maybe quantify the 'investment' in access disputes. I am unsure if we can do this in the paper but Steve should be ready with the Q&A!!" 47 At 4.19 pm Mr Jarman sent a further email to Mr Gammell and Mr Wise directed to Mr Gammell in which he said:- "The only thing I can suggest is that I have some numbers from Share (sic) which talk about the cost at $700,000 and with legal, marketing tec (sic) that during the AFL Season 2001 we will lose $2.9M. This is a short term picture at $700,000 with our primary content driver. That picture would have a xfold effect when we lose the rights 2002 onwards. Therefore new content needs to be found that drive sub numbers. That is about the only thing I can put in the paper. Should I include or should it be talked to on Friday instead?" (emphasis added) 48 Mr Wise appears to have responded to Mr Jarman's email of 4.19 pm on 26 March later on that day (said to be at 1.42 pm) in which he said:- "The analysis you are using is old. The facts are we are struggling to get a business plan that meets the cost of content and transmission costs let alone access costs. We should put a paragraph in, I will talk to you about this." (emphasis added) 49 Mr Gammell sent an email to Mr Jarman entitled "Re: C7 - ACCC Access" at 2.43 pm on 26 March 2001, presumably West Australian time in which he said:- "I would not put forward a limited plan of little accuracy!! We should be ready for the question, that's all." 50 Another email appears to have been sent by Mr Wise to Mr Sweeney, Mr Waters, Mr Gammell and Mr Jarman with copies to Mr Stokes, Maureen Plavsic, Steven Wise, Chris North, Catherine Rothery and Shane Wood at 3.22 pm on 26 March 2001 in relation to the "C7 - Interim Determination". 51 At about 5.48 pm on 26 March 2001 Mr Wise appears to have sent a further email regarding the "C7 - Interim Determination" to Mr Sweeney, Mr Robin Waters, Mr Peter Gammell and Mr Jarman with copies to Maureen Plavsic, Chris North, Catherine Rothery, Shane Wood and Kerry Stokes concerning the economics of securing access to the Foxtel cable. Mr Wood appears to have responded to this email at 4.23 pm, presumably West Australian time. 52 On 28 March 2001 Mr Stokes under the heading "Access and ACCC" sent an email to Chris North at Wattle Park Partners Pty Limited which included:- "We now need to put together the business plans both for the ACCC and ourselves." 53 On 29 March 2001 at 11.55 am Mr Jarman sent an email to Mr Peter Gammell, Mr Steven Wise, Danita Lowes and Shane Wood under the heading "Access Program" reading:- "Please find attached revised plan. Please let me know whether there are any material issues/omissions before I send it to the rest of the team." 54 The attached program was entitled "C7 Access Program" and was seven pages in length. Under the heading "Interim Determination" it included subheadings "Technical", "Content", "Marketing", "Legal", "Financial", "Public Relations" and "Timing of Programmes". It also had a heading "PAY TELEVISION". 55 This email appears to have elicited a reply from Danita Lowes at 3.19 pm on 3 April 2001. 56 On 29 March 2001 at 12.01 pm Mr Jarman sent an email to Mr Gammell and Mr Wise with a copy to Mr Wood, Mr Colin Wright and Mr Ian Sneddon under the heading "C7 - Technical Working Committee" in which he said:- "I would like to be in a position to send a fax to each of Telstra and Foxtel requesting that the various technical people met on Monday am to progress the technical aspect of the ID [interim determination]. Now the likelihood is that that they will not agree until they are legally obliged to do it - i.e. Thursdays. But I want to start the chain of events. … Do you see any problems with that." 57 A meeting of the board of the First Applicant would appear to have been held at North Sydney on Friday 30 March 2001 at which one of the items considered was "C7 Foxtel/Telstra Access Dispute - Update". In relation to the question of "Access" the minutes of that meeting record:- "The papers tabled to update Directors on the Access Dispute were noted and the issues discussed. It was RESOLVED to proceed with the interim determination without objection of veto so that the interim determination would come into force on about 4 April 2001. Notwithstanding that is was felt that the interim determination was uneconomic and not supported by a business case, the Board resolved to proceed with the interim determination for strategic reasons and on the basis that an economic price could eventuate in the final determination." 58 The final wording of the form of resolution as it appears in the minutes of the board meeting appears to have been suggested by Mr Robin Waters following the provision of a draft minute prepared by Judith Howard which in turn followed a suggestion as to a form of wording provided by Mr Stokes at the board meeting who indicated, at the time, that it would need to be refined. Judith Howard's draft for the resolution was:- "It was RESOLVED that authority be given to proceed with no objection to the interim determination. Notwithstanding this, the board felt it was uneconomic and the business case would not support this, however on the basis of a final determination an economic price would be forthcoming and for strategic reasons, the company would proceed with the interim determination." 59 At about 3.00 pm on, so it would seem, 2 April 2001 Mr Jarman sent an email to Kerry Stokes, Peter Gammell, Maureen Plavsic, Steven Wise, Danita Lowes, Robin Waters, Shane Wood and Chris North with copies to Colin Wright and Desmond Sweeney under the heading "C7 Access - Technical Committee" in which he provided a short update on the first Technical Working Committee meeting which had just finished. Danita Lowes appears to have responded to this email at 6.07 pm on 2 April 2001 in which she said:- "Thanks. I will not comment on the detailed issues until I see the more formal summary from Colin. However, one point worth raising now: Telstra sent only very junior technical people - the ones who know how it works, but are not authorized to do much. Whereas, Foxtel sent the 'best they have'. The Telstra people would have deferred to Peter Smart in many instances he is considered more senior in both organizations. My guess - Telstra sent junior people as the Foxtel Board has resolved to have Foxtel fight it all the way. Telstra probably just wants to get on with it, but Foxtel is charged with fighting." 60 At 5.01 pm on 4 April 2001 Mr Jarman appears to have sent an email to Peter Gammell and numerous other addressees under the heading "Access Program" in which he said:- "Please find attached the latest version of the Access Program which includes comments by Danita Lowes and Shane Wood. You will also notice the addition of A "Status" column. I would appreciate if we can treat this as a wok (sic) in progress which people can add to from time to time in their relevant section. Please provide me with additions to Particulars and Status as soon as possible. This will become, at least, a weekly turnaround document. …' 61 A seven page updated version of the document entitled "C7 Access Program" was attached. 62 In an email of 6.03 pm on 11 April 2001 sent by Mr Jarman to Mr Gammell and Mr Wise in relation to the "2nd Tech Meeting at Foxtel 10th April 2001" he said:- "May or may not interest you - I have not read yet, However if there are any issues I think that we should think about stepping up our delay campaign as well as thinking about taking the progressive role (sic) out route - with Melbourne first." 63 On 12 April 2001 a letter was sent by the First Applicant to the Australian Football League seeking the identification of the successful party or parties which had acquired the AFL rights. 64 On the same date a similar letter was sent to the National Rugby League. 65 At 11.59 am on 16 April 2001 Mr Jarman sent an email to Mr Shane Wood and others dealing with "Access - Moving Forward". 66 It would appear in April 2001 a further "Board Update" document was prepared by Mr Jarman in Mr Wise's name which also included a notation concerning the paper being a "confidential and privileged document". This paper was two pages in length and would appear to have been accompanied by a four page attachment providing a "detailed discussion of the Arbitration". The paper included:- "(ACCC Arbitration): As noted in the supplement to the March Update to the Board, the ACCC has issued an interim determination …" 67 The attachment to the paper appears to have been dated 24 April 2001. It included:- "As noted in the March Board Update, C7 to date has struggled to develop a business plan that deals with costs of content (rights fees and production costs), transmissions, marketing and access costs. …" 68 A further "Board Update" bearing a confidentiality note appears to have been prepared in May 2001. This update was entitled "C7 - Recommended Strategy". 69 On 22 May 2001 a further Board Update entitled "C7 - Foxtel/Telstra Access Dispute" would also appear to have been prepared by Mr Jarman but issued in the name of Mr Wise. Once again this paper records, under the heading "Purpose", that it was "a confidential and privileged document". The report was accompanied by a further document entitled "Productivity Commission Submission Summaries" described in the text of the "Board Update" as "A summary of the Fox Sports and Telstra Submissions". 70 A further "Board Update" entitled "C7 - Foxtel/Telstra Access Dispute" would appear to have been prepared in June 2001 with a similar notation as to confidentiality and privilege. This document bears the endorsement "Presented by Steve Wise"/"Prepared by Mark Jarman". 71 On 16 July 2001 the Second Applicant instituted an application for relief under Order 15A of the Federal Court Rules against Foxtel Management Pty Limited and others (see, inter alia, rules 3 and 6). 72 A further "Board Update" dated July 2001 and entitled "C7 - Foxtel/Telstra Access Dispute" was prepared endorsed "Submitted by Steve Wise"/"Prepared by Mark Jarman". This update bore the same endorsement as earlier updates in respect of confidentiality and privilege. 73 Yet another "Board Update" was prepared bearing date August 2001 with similar notations. 74 The minutes of a meeting of directors of the First Applicant held on 28 September 2001 includes a notation under the heading "Access/S.15(a) Order":- "Mark Jarman is on a well deserved holiday. There has been significant activity in the final determination process with Foxtel and Telstra now having submitted papers on pricing. Our response is being crafted by experts in their respective fields. What is clear is that the timing will slide and we don't expect a final determination until the 3rd and 4th quarter of 2002. In line with our desire to secure a position with Optus prior to attacking the Telstra cable, we are moving the interim determination variation process very slowly forward. In our S.15(a) order the AFL and NRL withdraw from their actions to be exempted from our order. Accordingly, they remain a respondent. Nothing will now happen until its hearing in November." 75 A further "Board Update" entitled "C7 - Foxtel/Telstra Access Dispute" was prepared bearing date October 2001. Once again this update bore a confidentiality and privilege statement and a notation that it was "Submitted by Steve Wise"/"Prepared by Mark Jarman". 76 Under the heading "ACCC ARBITRATION" the following appeared:- "As noted in the past Updates to the Board, the ACCC has issued an interim determination pursuant to the Trade Practices Act which entitles C7 to access 2 channels on the Cable, capable of being received by Foxtel cable subscribers on their set-top units ('STU') …As noted in the August update, the ACCC has commenced the process to move to the Final Determination which would see C7 having access to the Telstra cable and Foxtel STU's under a longer time frame … Accordingly, C7 has started preparing the various submissions for the Final Determination, and the knowledge acquired as part of the interim determination process, especially from the Technical Working Committee, will be invaluable to the tailoring the timeline requirements for access. It is not expected that the Final Determination will be issued before April 2002. The continued breakdown in dialogue with Telstra and Foxtel reinforces the statement made in the August update that C7's position with respect to the Interim Determination has not improved. …" 77 Under the heading "PLATFORM ACCESS GENERALLY" the following appeared:- "As noted in previous Updates to the board, in parallel with Seven's current access dispute with Foxtel and Telstra, Seven is escalating its campaign with respect to non-declared services such as digital cable and satellite. … Seven has also provided the Government and the Labour (sic) Party with copies of this submission [a submission by Seven that any definition of market should take into account all forms of media including the telecommunication industry when determining what is the appropriate market], with a concerted effort to lobby both siddes (sic) of Parliament during this election campaign on Seven's concerns regarding the access regime and the concentration of market power within the convergent media market." 78 Yet another "Board Update" entitled "C7 - Foxtel/Telstra Access Dispute" was prepared by Mr Jarman in November 2001 and submitted to the Board by Steve Wise. 79 On 23 February 2002 Mr Jarman sent Mr Wise an email under the heading "C7 and Access" to which he attached a: "withdrawal option paper which Freehills prepared for me a couple of weeks ago. … Short term it is clear that the cost of just maintaining the access case is prohibitive. In addition, C7 will be in a wind down mode i.e. there will be no sustainable business which can jump straight on to the Telstra cable once access is finalised. We cannot just escrow C7 until that time - this again is too costly. Further, there is no logic to the escrow given that the timing of when access will be secured in (sic) uncertain. …" 80 A further "Board Update" was prepared by Mr Jarman for submission by Mr Wise dated May 2002 entitled "C7 - Foxtel/Optus/Telstra Various Matters". Again in August 2002 a further "Board Update" was prepared by Mr Jarman for Mr Wise entitled "C7 - Foxtel/Optus/Telstra various matters". Each of the May 2002 and August 2002 updates contained the standard claim that the paper was a "confidential and privileged document". 81 The August 2002 Board Update referred to an agreement between the ACCC and the parties to the ACCC arbitration that it "be effectively put on the (sic) hold until the outcome of those undertakings [undertakings the ACCC was seeking from Foxtel and Optus] in (sic) known". … Given Seven's internal resources on managing the access determination are the same as those involved in the Foxtel-Optus matter and the Order 15A process, the strategy of staying the arbitration in the short term is a good one. It allows that team of (sic) focus on the material issues of the Order 15A recommendation to the Board, and concentrate on ensuring any undertakings offered by Foxtel-Optus are not to the detriment of Seven's interests in pay television. 82 It may be noted by reference to the above documentation that the Telstra Respondents contend that there have been express or implied waivers of the legal professional privilege claimed by the Applicants in respect of some or all of the 18 documents identified above. Matters relied upon have included, for instance, the reference in the 24 April 2001 "Board Update" to the March Board Update and the reference in the 30 March 2001 Board Minutes to the update on the access dispute which was noted prior to the resolution being passed as recorded above. 83 The Telstra Respondents have also placed reliance upon passages from the transcript of evidence given by Mr Stokes, the Executive Chairman of the First Applicant, in the main proceedings. Discrete passages from the transcript of Mr Stokes' evidence on 17 October, 19 October and 20 October 2005 have become part of Exhibit TA2 on the hearing of this Motion to the extent only that the transcript contains admissions on the part of Mr Stokes as Executive Chairman of the Applicants as to facts relevant to the privileged status of the documents the subject of paragraph 1 of the Amended Notice of Motion. 84 Given that I have not had the benefit of seeing Mr Stokes in the witness box I am reluctant to draw any inferences from the passages in Mr Stokes' evidence to which I have been referred by Mr Castle. The most that the Telstra Respondents have been able to achieve by taking me to part of Mr Stokes' evidence has been to identify a concession made on page 1898 to the effect that in 2002 Mr Jarman was a member of an "inner strategy sanctum" within Seven along with Mr Gammell, Ms Plavsic, Mr Wise and Mr Wood. In my opinion this concession is of little, if any, significance in relation to the privilege issues with which I am presently confronted. 85 In the foregoing context and having regard to the principles referred to above I turn now to a consideration of the documents for which privilege has been claimed. These have been produced for my inspection by the Applicants on the understanding that the binder which contains copies of the relevant documents will be marked for identification 3 and this has now occurred. 86 My rulings on the Applicants' claims of legal professional privilege in respect of the whole or the masked portions of the 18 documents in question are as follows:- (a) Document No. 1 This is a two page document bearing the discovery numbers APL.414.004.0180 -0181. I am satisfied that it was brought into existence by Mr Jarman as in-house counsel within Seven for the dominant purpose of providing legal advice to the Board of the First Applicant. I am satisfied that Mr Jarman possessed the requisite independence in recording his advice. The fact that the document was submitted by Mr Wise to the Board, rather than by Mr Jarman, did not, in my opinion result in any waiver of privilege in respect of it. Whilst I am somewhat sceptical about the value of the claim within the document itself that the "paper is a confidential and privileged document which has been prepared solely for the purpose of the board of directors in connection with the dispute between C7 and various Foxtel, News and Telstra companies concerning C7's attempt to gain access to the Foxtel/Telstra broadband cable" I consider that these words do highlight a desire to maintain the privileged status of the matter for which privilege has been claimed. Furthermore, I do not consider that anything in the minutes of the 30 March 2001 board meeting or the subsequent April "Board Update" have given rise to an express or implied waiver of privilege in respect of the masked portion. In my opinion the masked portion of the document is privileged from production. (b) Document No. 2 This is a six page document bearing the discovery numbers APL.414.004.0182-0187. I am satisfied that it was brought into existence by Mr Jarman as in-house counsel within Seven for the dominant purpose of providing legal advice to the board of the First Applicant. I am satisfied that Mr Jarman possessed the requisite independence in recording his advice notwithstanding his submission of a draft of the Update Paper to Mr Stokes and Mr Gammell for their consideration and comment. I accept Mr Jarman's evidence that his concern as to whether the paper was "satisfactory" was driven by a desire to make sure it dealt with all the matters in relation to which his advice was sought. As with Document No. 1 I do not consider that the submission of the document by Mr Wise to the Board involved any waiver of privilege in respect of it. Furthermore, I do not consider that anything in the minutes of the 30 March 2001 board meeting or the subsequent April "Board Update" have given rise to an express or implied waiver of privilege in respect of the masked portion. In my opinion the masked portion of the document is privileged from production. (c) Document No. 3 This is a six page document bearing the discovery numbers APL.414.005.0122 - 0127. It comprises a two page April 2001 "Board Update" and a four page attachment thereto. Privilege has been claimed in respect of certain passages appearing on each of the pages of the attachment. I am satisfied that it was brought into existence by Mr Jarman as in-house counsel within Seven for the dominant purpose of providing legal advice to the board of the First Applicant. I am satisfied that Mr Jarman possessed the requisite independence in recording his advice. As with Document No. 1 I do not consider that the submission of the document by Mr Wise to the Board involved any waiver of privilege in respect of it. In my opinion the masked portion of the document is privileged from production. (d) Document No. 4 This is a two page document bearing the discovery numbers APL.032.017.0234 - 0235. It is an email which bears date 23 February 2002. I am satisfied that the document was brought into existence by Mr Jarman as in-house counsel within Seven for the dominant purpose of providing legal advice to the Applicants. I am satisfied that Mr Jarman possessed the requisite independence in recording his advice. The Applicants are, in my opinion, entitled to maintain their claim for legal professional privilege in respect of the masked portions of this document. (e) Document No. 5 This is a three page document bearing the discovery numbers APL.417.001.0044 - 0046. It is a "Board Update" bearing date May 2002. I am satisfied that the document was brought into existence by Mr Jarman as in-house counsel within Seven for the dominant purpose of providing legal advice to the board of the First Applicant. I am satisfied that Mr Jarman possessed the requisite independence in recording his advice. The fact that the document was submitted by Mr Wise to the Board did not, in my opinion, result in any waiver of privilege in respect of it. Whilst I am somewhat sceptical about the value of the claim within the document itself that the "paper is a confidential and privileged document which has been prepared solely for the purpose of the board of directors of Seven Network Limited in connection with the various matters concerning C7's attempt to gain access to the Foxtel/Telstra broadband cable … and the recently announcement arrangements as between Foxtel/Optus and Telstra regarding the sharing of pay tv content as between Foxtel and Optus", I consider that these words do highlight a desire to maintain the privileged status of the matter for which privilege has been claimed. The Applicants are, in my opinion, entitled to maintain their claim for legal professional privilege in respect of the masked portions of this document. (f) Document No. 6 This is a two page document bearing the discovery numbers APL.020.002.0037 - 0038. It is a "Board Update" bearing date August 2002. I am satisfied that it was brought into existence by Mr Jarman as in-house counsel within Seven for the dominant purpose of providing legal advice to the board of the First Applicant. I am satisfied that Mr Jarman possessed the requisite independence in recording his advice. The fact that the document was submitted by Mr Wise to the Board did not, in my opinion, result in any waiver of privilege in respect of it. Whilst I am somewhat sceptical about the value of the claim within the document itself that the "paper is a confidential and privileged document which has been prepared by legal counsel solely for the purpose of the board of directors of Seven Network Limited …". I consider that these words do highlight a desire to maintain the privileged status of the matter for which privilege has been claimed. The Applicants are, in my opinion, entitled to maintain their claim for legal professional privilege in respect of the masked portions of this document. (g) Document No. 7 This is a two page document bearing the discovery numbers APL.038.002.0338 - 0339. It is a chain of emails passing between Sheila McGregor at Freehills and Mark Jarman dated 18 June 2001. Notwithstanding that the emails have been copied to Robin Waters, I am satisfied that they were brought into existence for the purpose of legal advice being provided to the Applicants by Freehills. In my opinion the Applicants are entitled to maintain their claim for legal professional privilege in respect of the whole of this document. (h) Document No. 8 This is a one page document bearing the discovery number APL.040.001.0001. It is an email dated 27 August 2001 from Mr Jarman to Sheila McGregor at Freehills which has been copied to Mr Sweeney at Freehills and Mr Chris North and Mr Robin Waters. I am satisfied that it was brought into existence by Mr Jarman for the dominant purpose of seeking legal advice for the Applicants. To the extent to which it involved a sharing by Mr Jarman of legal advice he had tendered to the Applicants with the Applicants' external solicitors it did not, in my opinion, involve any waiver of the relevant legal professional privilege attaching to his advice. In my opinion the Applicants are entitled to maintain their claim for legal professional privilege in respect of the whole of this document. (i) Document Number 9 This is a two page document bearing the discovery numbers APL.040.001.0025 - 0026. It is a chain of emails commencing with Mr Jarman's email to Sheila McGregor at Freehills which is the subject of Document No. 8. The second email in the chain is one from Chris North to Sheila McGregor of Freehills of 4 September 2001 which was plainly brought into existence for the dominant purpose of seeking legal advice. In my opinion the Applicants are entitled to maintain their claim for legal privilege in respect of the whole of this document. (j) Document No. 10 This is a two page document bearing the discovery numbers APL.040.001.0032 - 0033. It is a chain of emails bearing date 30 August 2001, 3 September 2001 and 5 September 2001. The chain of emails commences with one from Sheila McGregor of Freehills to Chris North, Kerry Stokes and Peter Gammell with a copy to Mr Sweeney at Freehills. It is followed by one from Sheila McGregor to Mr Stokes, Mr Gammell, Mr Wise, Mr Waters, Mr Jarman, Mr Godwin and Mr Francis with copies to Mr Sweeney and Mr Chalmers at Freehills. This email is a covering email for advice provided by Freehills to the Applicants. It is followed by an email under cover of which comments were made by Mr Jarman on the advice as tendered to which Sheila McGregor responded in a later email. The chain of emails was clearly brought into existence for the dominant purpose of Freehills providing legal advice to the Applicants or the Applicants seeking such advice. In my opinion the Applicants are entitled to maintain their claim for legal professional privilege in respect of the whole of the document. (k) Document No. 11 This is a one page document bearing the discovery number APL.040.001.0080. It is an email from Mr Sweeney of Freehills to Mr Jarman with a copy to Mr Robin Waters bearing date 6 September 2001. I am satisfied that this document was brought into existence by Mr Sweeney for the dominant purpose of providing legal advice to the Applicants. In my opinion the Applicants are entitled to maintain their claim for legal professional privilege in respect of the whole of this document. (l) Document No. 12 This is a two page document bearing discovery numbers APL.040.001.0081 - 0082. It is a chain of emails between Mr Desmond Sweeney of Freehills and Mr Jarman, copies of which were forwarded to Mr Robin Waters. The first email, sent by Mr Sweeney on 6 September 2001, is the same email as is recorded in Document No. 11. The second email is Mr Jarman's reply to Mr Sweeney of 7 September 2001. I am satisfied that these emails were brought into existence for the dominant purpose of seeking or providing legal advice for the Applicants. In my opinion the Applicants are entitled to maintain their claim of legal professional privilege in respect of the whole of the document. (m) Document No. 13 This is a one page bearing discovery number APL.072.001.0067. It is a covering email sent by Mr Jarman to Mr Gammell, Mr Wise, Mr Waters, Mr North and Mr Sweeney on 16 March 2001. I am satisfied that the document was brought into existence by Mr Jarman as in-house counsel within Seven for the dominant purpose of providing legal advice to the Applicants. I am satisfied that Mr Jarman possessed the requisite independence. In my opinion the Applicants are entitled to maintain their claim of legal professional privilege in respect of the whole of this document. (n) Document No. 14 This is a one page document bearing discovery number APL.073.001.0164. It is a covering email dated 3 October 2002 sent by Mr Paul Wylie to Mr Sweeney of Freehills with copies to Mr Wise, Mr Jarman and Mr Wood. I am satisfied that the document was brought into existence for the dominant purpose of seeking legal advice for the Applicants. The Applicants are, in my opinion, entitled to maintain their claim of legal professional privilege in respect of the whole of this document. (o) Document No. 15 This is a two page document bearing discovery numbers APL.098.001.0092 - 0093. It is a chain of covering emails. It commences with a covering email from Bridget Godwin to Kerry Stokes, Peter Gammell, Danita Lowes, Maureen Plavsic, Steven Wise, Desmond Sweeney, Robin Waters, Chris North, Simon Francis and Mark Jarman of 15 October 2001. The second email is a response from Chris North sent to, amongst others, Desmond Sweeney of Freehills. I am satisfied that the emails were brought into existence for the dominant purpose of seeking or providing legal advice for the Applicants. In my opinion the Applicants are entitled to maintain their claim of legal professional privilege in respect of the whole of this document. (p) Document No. 16 This is a six page document bearing discovery numbers APL.098.001.0313 - 0318. It is a chain of emails. The first email was sent by Desmond Sweeney of Freehills to Mr Stokes, Mr Gammell, Mr Waters, Mr Dempsey, Mr Jarman, Bridget Godwin and Mr North with copies to Maureen Plavsic and Sheila McGregor on 30 July 2002. The second email is a response from Bridget Godwin to Mr Sweeney and others of 30 July 2002. That email is followed by a further email from Chris North to, amongst others, Desmond Sweeney of Freehills and Mr Jarman of 3 August 2002. I am satisfied that the chain of emails was brought into existence for the dominant purpose of providing or seeking legal advice for the Applicants. In my opinion the Applicants are entitled to maintain their claim of legal professional privilege in respect of the whole of this document. (q) Document No. 17 This is a one page which bears discovery number APL.186.003.0017. It records a chain of emails from Mr Jarman to Sheila McGregor at Freehills, Desmond Sweeney at Freehills and Paul Hughes at Freehills with copies to Mr Wood, Mr Waters, Mr Wise and Mr Gammell. I am satisfied that the emails were brought into existence by Mr Jarman as in-house counsel within Seven for the dominant purpose of seeking legal advice for the Applicants. In my opinion Seven is entitled to maintain its claim of legal professional privilege in respect of the whole of this document. (r) Document No. 18 This is a one page bearing the discovery number C7P.068.002.0086. It records an email from Mr Jarman to Mr Wood, Mr Wright and Mr Sweeney with copies to Mr Gammell, Mr Wise, Mr Wylie, Mr Waters, Mr Francis and Mr North of 16 April 2001. Privilege is now claimed in respect of one small part of the email. The masked portion records a request by Mr Jarman directed to Mr Sweeney of Freehills for advice and observations in the nature of legal advice provided by Mr Jarman to the Applicants. I am satisfied that the masked portion of the document was brought into existence by Mr Jarman as in-house counsel within Seven for the dominant purpose of seeking or providing legal advice for the Applicants. I am satisfied that Mr Jarman possessed the requisite independence in recording that part of the document which contains his advice. In my opinion the Applicants are entitled to maintain their claim of legal professoinal privilege in respect of the masked portion of this document. 87 None of the communications in the documents for which privilege has been claimed were made for the apparent purpose of frustrating the processes of the law. In the circumstances, no questions of abuse of process or collateral purpose arise. 88 In my opinion the claims for privilege in respect of the whole or the masked portions of the 18 documents listed in Schedule 1 to the Amended Notice of Motion were properly and sufficiently made by the Applicants. Accordingly, the Telstra Respondents' prayer for relief in paragraph 1 of the Amended Notice of Motion filed 21 October 2005 should be dismissed. 89 I will entertain brief written submission from the parties on the question of costs to date of both the original Notice of Motion filed in Court on 17 October 2005 and the Amended Notice of Motion filed 21 October 2005 in respect of prayer for relief number 1. 90 I certify that the preceding one hundred and eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

Associate: Dated: 3 November 2005 Counsel for the Applicants on the motion : T D Castle and I R Pike

Solicitor for the Applicants on the motion: Mallesons Stephen Jaques

Counsel for the Respondents on the motion: T E F Hughes QC and Mr T D F Hughes

Solicitor for the Respondents on the motion: Freehills

Date of Hearing: 24, 25, 26 and 28 October 2005

Date of Judgment: 3 November 2005