Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd

High Court of Australia
 Gleeson CJ, Gaudron, Gummow, Kirby, Hayne and Callinan JJ
 [2001] HCA 63, 15 November 2001

[DRAFT CASENOTE  FOR PUBLICATION IN [2002] 8 PLPR ISSUE 8 - DO NOT CITE WITHOUT PERMISSION]

Equity - interlocutory injunctions - film made by use of hidden cameras installed by trespasser - film given to broadcaster - broadcaster not involved in trespass - whether power to restrain broadcast of film as the fruits of trespass

Torts - privacy - whether Australian law recognises tort of invasion of privacy

L was a processor and supplier of game meat who sold possum meat for export. L's business was conducted according to law. The methods by which the possums were killed, although lawful, were objected to by some people, including Animal Liberation Limited, on the ground that they were cruel. Persons unknown broke and entered L's premises and installed hidden cameras. The possum killing operations were filmed without L's knowledge or consent, and a video tape was supplied to Animal Liberation Limited which, in turn, supplied the tape or part of it to the ABC with the intention that the ABC would broadcast it.

L commenced proceedings in the Supreme Court of Tasmania against Animal Liberation Limited and the ABC seeking an injunction and damages. L sought final injunctive relief which would require the ABC to hand over the tape, and all copies or excerpts, and would prevent the ABC from broadcasting or further broadcasting the material on it. L also sought, on an urgent basis, an interlocutory injunction restraining the ABC from publishing the tape or excerpts from it pending the hearing of the application for final relief. L did not allege that the ABC was implicated in the trespass on L's premises.

On 3 May 1999 Underwood J refused interlocutory relief. His decision was based on 3 grounds: (i) there was no serious question to be tried, assuming that the allegations in the statement of claim were true; (ii) even if the statement of claim disclosed a cause of action against the ABC, it could only have been in defamation, and the principles relating to prior restraint on the publication of defamatory matter dictated that interlocutory relief should not be granted; and (iii) in any event, damages were an adequate remedy. L immediately lodged an appeal, and applied to Cox CJ for an interlocutory injunction in aid of its pending appeal. This application was refused on 4 May 1999 and the ABC subsequently televised segments of the film.

On 2 November 1999 the Full Court of the Supreme Court of Tasmania (Wright and Evans JJ; Slicer J dissenting - [1999] TASSC 114) granted an interlocutory injunction that restrained the ABC, until further order, from distributing, publishing or broadcasting a video tape filmed by a trespasser showing L's brush tail possum processing facility.

During the course of the appeal to the Full Court L conceded that (i) it was not pursuing an action for defamation against the ABC and (ii) information about the nature of the `processing' of possums was not confidential and was not imparted in confidence.

The ABC appealed and sought to have the interlocutory injunction discharged. Amongst other things L argued that (i) Australian law should recognise a tort of unjustified invasion of privacy; and (ii) the Court had power to, and should, restrain the publication of a film known to have been taken as a result of a trespass on the basis that such publication would be unconscionable.

Held, per Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ (Callinan J dissenting), granting the appeal and discharging the interlocutory injunction:

1. (per Gleeson CJ, Gaudron, Gummow and Hayne JJ) The statute conferring power on the Supreme Court of Tasmania to grant interlocutory injunctions in cases in which it appears to the Court to be just or convenient to do so did not confer power to make an order other than in protection of some legal or equitable right of the applicant for relief which the Court might enforce by final judgment. Hence an interlocutory injunction should only have been granted if L could establish that the ABC had, or threatened to, breach L's rights.

North London Railway Co v Great Northern Railway Co (1883) 11 QBD 30; The Siskina [1979] AC 210, followed; South Carolina Insurance Co v Assurantie Maatschappij `De Zeven Provincien' NV [1987] AC 24, distinguished; Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457, Donnelly v Amalgamated Television Services Pty Ltd (1998) 45 NSWLR 570, considered.

2. (per Gleeson CJ, Gaudron, Gummow and Hayne JJ) L had no cause of action against the ABC. In particular:

(a) (per Gaudron, Gummow and Hayne JJ) Whatever developments may take place in connection with an emergent tort of invasion of privacy, L could not benefit from that tort because it is clear that it will not protect the interests of a corporation.

Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479; Douglas v Hello! Ltd [2001] 2 All ER 289, considered

(b) (per Gleeson CJ) If the activities filmed were private, then the law of breach of confidence is adequate to cover the case. A useful practical test of what is private is to consider whether disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities. But not every activity observed by a trespasser is private. L's concession that information about the slaughtering process was not confidential meant that L could not succeed in a claim based on breach of confidence.

Hellewell v Chief Constable of Derbyshire [1995] 4 All ER 473, considered

3. (per Kirby J) The Supreme Court of Tasmania had the statutory power to grant an injunction to restrain the use of information which has been obtained by a trespasser or by some other illegal, tortious, surreptitious or improper means where the use of such information would be unconscionable. Accordingly, it was unnecessary to consider whether relief may have been available on the basis of an actionable breach of privacy. In exercising its power to grant relief the Court was required to give proper weight to the constitutional principle protecting freedom of communication concerning governmental and political matters. Concerns about animal welfare and the export of animals and animal products were legitimate matters of public debate across the nation, and the Full Court erred in the exercise of its discretion to grant an injunction in failing to give proper weight to these matters

Cardile v LED Builders Pty Ltd (1999) 198 CLR 380; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, considered.

4. (Obiter, per Gummow and Hayne JJ; Gaudron J agreeing generally; Callinan J agreeing specifically on this point) If a film is made in circumstances involving the invasion of the legal or equitable rights of the plaintiff or a breach of the obligations of the film-maker to the plaintiff, the film-maker may be regarded as the constructive trustee of the copyright subsisting in the film for the benefit of the plaintiff, and the plaintiff may (i) obtain a declaration as to the subsistence of the trust and a mandatory order requiring assignment of the legal title to the copyright subsisting in the film, and (ii) as the owner of an equitable interest in the copyright subsisting in the film pending assignment of the legal title, obtain an interlocutory injunction against a person proposing to exercise any of the exclusive rights of the copyright owner, including the right to broadcast the film, without the licence of the plaintiff.

5. (per Callinan J, dissenting) The relationship created by the ABC's possession of a tangible item of property obtained in violation of L's right of possession, the exploitation of which would be to L's detriment, and to the advantage of the ABC, was a fiduciary relationship and one of confidence. The circumstances were such that equity should attach a constructive trust, with the result that the ABC could not, in good conscience, use the film without L's permission. The Full Court was right to grant the interlocutory injunction.

Patrick Gunning

 Mallesons Stephen Jaques, Sydney