Seven goes back to court with C7 appeal

"The previous judge's approach was seriously flawed," its lead barrister, Allan Myers, QC, told the court yesterday.

He said it was "nonsense" that Foxtel had not taken advantage of its market power, having reached a virtual monopoly in the retail pay TV market through its actions.

"One certainly suspects His Honour's findings of fact weren't informed by a proper appreciation of the evidence and were made to fit the case," Mr Myers said.

Seven suffered a humiliating defeat in July last year when Justice Sackville comprehensively dismissed its allegations that its rivals colluded in 2000 to buy the broadcast rights to the AFL and the NRL and so drive Seven's sports TV channel, C7, out of business.

The judge, who has since retired, lambasted the "mega-litigation," which started in 2002 and ran for 120 hearing days, saying the combined $200 million spent "borders on the scandalous".

He strongly criticised Mr Stokes, his right-hand man, Peter Gammell, and Ian Philip, the top lawyer at News Ltd, which was the main defendant in the case.

Seven indicated shortly afterwards that it would vigorously pursue its claims further.

The appeal, which is likely to run for two weeks, focuses on the three owners of Foxtel - News, Telstra and PBL (a stake which is today held by Consolidated Media Holdings).

Mr Myers said their actions had "the effect and the purpose of substantially lessening competition" in the retail pay TV market and in the market of sports channels for pay TV. He argued that Justice Sackville had been wrong in finding there was no such market.

He said that the Foxtel owners had refused to carry C7 on their platform to hurt its negotiating position for the AFL rights, while at the same time offering the football code a price too high to deliver anything other than a strategic gain.

After C7 lost its AFL drawcard, its customers Optus and Austar terminated their contracts and the company went out of business in 2002.

The case continues today.