THE C7 litigation required a high degree of cooperation between co-respondents, said Roger Forbes, a Mallesons partner who represented Telstra in the landmark litigation.
According to Forbes, lawyers for the co-respondents worked together to ensure they worked efficiently. Allens Arthur Robinson represented News Ltd and Foxtel, Gilbert + Tobin represented Publishing and Broadcasting Ltd, and Diana Chang of Chang, Pistilli & Simmons represented Optus.
“There was a fairly common sense approach where we would try not to duplicate what each other was doing and we would divide up common issues. There was cooperation and consultation in relation to calling expert economic evidence and there was cooperation in relation to responding to the damages claims. For example, we led some of the early challenges to knock out certain claims at an early change while other parties worked on other areas,” Forbes said.
However, Forbes said the case also demonstrates that cooperation is needed between opposing sides.
“There also has to be a degree of cooperation and common sense as between the parties — that is, the applicants and the respondents. One of the judge’s significant criticisms was there was a failure on the part of Seven at an early stage to really refine what its most important points were and an unwillingness to abandon any part of its claim,” Forbes said.
Justice Ronald Sackville of the Federal Court last week dismissed claims made by the Seven Network that anti-competitive conduct by its rivals led to the demise of its pay-TV arm, C7, more than five years ago. The Seven Network was advised by Freehills.
The ruling followed 120 days of hearings over more than 12 months that produced almost 10,000 pages of transcript.
In a summary of his judgment, Justice Sackville criticised Seven for pursuing the litigation saying: “In my view, the expenditure of $200 million and counting on a single piece of litigation is not only extraordinarily wasteful, but borders on the scandalous.”
Justice Sackville also advised Seven against an appeal in summing up his judgment.
“In the light of my findings of fact and conclusions of law, the parties should be able to assess realistically their prospects on appeal. They should also take into account that the transactions that gave rise to this litigation are long passed and have been overtaken, not only by later events, but a changed commercial environment in the industries in which they operate.
“The alternative to a negotiated resolution may be a reprise of the Duke litigation. I do not recommend this course,” he said.
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