The Seven board and chairman Kerry Stokes will finalise their decision on whether to appeal in the C7 case on Monday.

An appeal can be expected. At stake is the expenditure of more money, but considering the company has spent around $100 million of its own and will pay at least $50 million of its opponents costs, an appeal is going to be cheap. The trial judge, Justice Ron Sackville, has sort of signalled the inevitability of an appeal in some of the commentary in his long judgment.

Seven has been looking at challenging Sackville’s judgment on several grounds, most notably section 45 of the Trade Practices Act where he has been found wanting in the past. Back in 2000 Justice Sackville found against the ACCC in the so-called Northern Pacific case which involved allegations of market rigging against Visy.

The ACCC appealed Sackville’s decision to a full bench of the Federal Court, which overturned Sackville’s judgment 2-1. That decision was upheld by the High Court.

He refers to that case in his judgment:

One consequence of Seven’s reluctance to narrow its case, or to limit the range of alternative claims, is that I have been faced with a large number of possible combinations and permutations, depending on the findings of fact and the conclusions of law I reach.

There is nothing unusual about a case that presents multiple issues and in which the parties rely on alternative arguments. In such a case, in order to accommodate the possibility of an appeal, a trial judge will often consider it appropriate to make findings on issues that do not strictly arise in view of his or her decision.

This approach may allow the appellate court, if it takes a different view on a question of law or on a particular finding of fact, to make orders finally resolving the proceedings without further fact finding. The inconvenience of remitting the matter to enable further findings of fact to be made is thereby avoided.

In particular, where an applicant fails on liability it is often a sensible course for the trial judge to assess damages or determine other questions of relief in the event that an appeal on the issue of liability is upheld.

In example of the approach I have described is Australian Competition and Consumer Commission v Visy Paper Pty Ltd (2000) 186 ALR 731.

… Subject to my observations at the conclusion of this Chapter, an appeal in the present case, given the damages claimed (and the costs of the proceedings), is inevitable.

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