ABC v Lenah Game Meats Pty Ltd

[2000] HCATrans 189

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No H18 of 1999

B e t w e e n -

AUSTRALIAN BROADCASTING CORPORATION

Applicant

and

LENAH GAME MEATS PTY LTD

Respondent

Application for special leave to appeal

GLEESON CJ
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM HOBART BY VIDEO LINK TO CANBERRA

ON FRIDAY, 12 MAY 2000, AT 2.51 PM

Copyright in the High Court of Australia

MR T.K. TOBIN, QC:   If your Honours please, I appear with MS J.C. GIBSON, for the applicant.  (instructed by Judith Walker, ABC Ultimo Centre)

MR S.B. McELWAINE:   If your Honours please, I appear with MS J.F.E. BOURKE, for the respondent.  (instructed by S.B. McElwaine)

GLEESON CJ:   Thank you.  Yes, Mr Tobin.

KIRBY J:   Mr Tobin, I notified both parties that I was a patron of the RSPCA Australia and I understand neither party has any objection to my sitting in the matter.

MR TOBIN:   That is so, your Honour.  This arises out of a decision of the Full Court of the Supreme Court of Tasmania where two of the three judges upheld an appeal against Mr Justice Underwood, the Chief Justice, at first instance, where his Honour had declined to grant an interlocutory injunction to prevent the broadcast of material on ABC television.

GLEESON CJ:   Could you just remind us about the time element, Mr Tobin?

MR TOBIN:   Yes.  I have a brief outline of the time.  In March 1999 proceedings were commenced.  That is on application book, page 12.

GLEESON CJ:   Had anything been broadcast by the ABC?

MR TOBIN:   No, not at that stage.

GLEESON CJ:   And when was the proposed broadcast?

MR TOBIN:   It was due to be at some unspecified time but it was not made until his Honour heard the interlocutory application and declined to make orders on 3 May.  The broadcast of some of the material occurred on 5 May.  An appeal was lodged to the Full Court on 25 May and that was disposed of on 2 November which is the ‑ ‑ ‑

GLEESON CJ:   Well, now, what is the live issue remaining?

MR TOBIN:   The live issue is this, your Honour, that if the order remains on foot, the ABC may not broadcast, further, any of that material, either by way of rebroadcast or broadcast of other material contained in the video tape.

GLEESON CJ:   What is the nature of the material?  I mean, it is getting a little elderly, now, is it not?

MR TOBIN:   It is, your Honour.  It is.  The material - and this is one of the perhaps interesting legal aspects of the case – which apparently was obtained by optic fibre cameras, if that is a proper description, in the roof of the abattoirs, depicted the stunning and slaughtering of brush-tailed possums.

KIRBY J:   His Honour’s question is directed to whether by the time we granted leave, heard the argument, reserved the matter, gave decision, it could really seriously be suggested that this would ever be put to air.  It would be very, very stale, would it not?

MR TOBIN:   It well might, but perhaps overriding that is that it would be unlawful for it to be put to air, so it could not be contemplated that it might be put to air.  That is one thing we say.  The second thing is this, your Honours:  with interlocutory injunctions where the principles mapped out, as it were, as to whether a publication may or may not occur, it will never, as it were, get to the stage of perfection where at the end of the day all the issues of fact are litigated and the operation of the principles of law, as by way of final relief, are made.  At the interlocutory stage, as in this case, you have statements of principles by the judges who are involved in making the decision and then made against the background of facts to be taken for granted, and that is the position here.

The facts to be taken for granted are that the video film was not made with the consent of the respondent company and that it was made by an act of trespass on the premises of that company and that it came to the ABC via another defendant, which is Animal Liberation.  They were the background facts.  What concerns us, in particular, is this:  for the first time, as far as I am aware, one has at a high appellate level within the Australian jurisdictions a statement that unconscionability, per se, can operate as a foundation for an injunction against broadcast or publication of matter.  Not defamatory matter, simply matter which again on the premises of the interlocutory application, would be understood to be damaging to the goodwill of the respondent company.

KIRBY J:   Did not Justice Hunt get a little close to that in that decision?  I did look at one of his Honour’s decisions that is referred to where there was intrusion into property and his Honour had to deal with a somewhat similar case.

MR TOBIN:   Yes.  Well, this seems to us - and I think this would prove right, your Honour - to be the furtherest extension of any principle;  certainly, the furtherest at an appellant level that we can find, that holds that the non-trespasser – the ABC was a non-trespasser – may be enjoined from publication of what in the Full Court was called the fruits of the trespass.  Now, interestingly, on our researches, there is only two or three cases where this issue has been really ventilated.  On the side of the respondent in Queensland, in two cases involving the ABC – one is called Emcorp, and that is in the beginning of the majority judgment, the judgment of Mr Justice Wright, and the other is called Rinsale.

GLEESON CJ:   I think you can assume, subject to what your opponent says, that we are conscious of the importance of the issue of principle that was raised, but we are not here to give advisory opinions, and there is a question whether, assuming we heard an appeal in the Hobart sittings of the Court early in the year 2001 and then gave a decision some time later, in terms of administering justice between the parties, that is achieving anything practical.  Is it contemplated as a possibility that if your appeal were to succeed, the Australian public would then get the benefit of seeing some brush-tailed possums being dispatched?

MR TOBIN:   Yes.  If the ABC were successful, it would publish that which it had already published, and any further material it wanted to publish, but that which it had already published which it would be lawful for it to do.  Your Honours, we do not bring this, as it were, as a test case - and I saw that in the respondent’s submission, the term “test case”.  What is involved as far as we can see is this, that there is an ongoing shadow of unlawfulness with regard to any publication unless the Court intervenes and if the Court intervenes and our client was successful, it would publish a selection of the material which it had previously been enjoined from publishing.

Now, I cannot canvass, your Honour, questions of prudence or wisdom of the level of public interest in receiving such information.  They are not matters that I, or perhaps for that matter, the Court would need to be involved in, but I can say that the intention of the ABC is as I have outlined it.  Now, if your Honours were to take that as the ground upon which we want to move, what is involved from a special leave point of view is that you have here a very high appellate decision which introduces unconscionability, as we would see, a rather elastic concept to prevent publication.

We particularly draw your Honours’ attention to a judgment of Mr Justice Needham, which is in our list, the Church of Scientology Case against the Willessee program.  His Honour Mr Justice Needham refused an injunction to the Church of Scientology.  He accepted, for the purposes of the determination, that there had been a trespass or that there was a serious issue of being a trespass.  So he proceeded on the basis that, assuming that the material was gained as a result of a trespass, does that itself ground a case of unconscionability?  The issue of unconscionability as a basis for the enjoining of broadcasts is not a new matter.  Your Honour the Chief Justice, I think, raised that with me earlier as to the question of principle.  But, Mr Justice Needham, in Church of Scientology, seems to us to have approached the problem in a way which gets to the heart of the question of how unconscionability itself, as an exercise of the equitable jurisdiction in granting injunctions, might operate to stop a broadcast.  The other judgments which I refer to ‑ ‑ ‑

KIRBY J:   You do not dispute that unconscionability is a relevant consideration in granting the equitable relief of injunction?

MR TOBIN:   Well, your Honour, subject, of course, to the caveat that it must be a recognised head of equitable remedy.  In other words, unconscionability, as a term, captures four or five or six different concepts for which injunctions are known to run.  Breach of confidentiality is perhaps the closest that one could think of.

KIRBY J:   Why would not secret planting of new technology optic fibre cameras on people’s private property – I mean, if it can happen in this case, it can happen in people’s bedrooms or living rooms, and it can be a serious invasion of their privacy.

MR TOBIN:   Yes.  Well, your Honours, with regard to that question, in the present state of the law - Mr Justice Hunt dealt with this in Chappell v Truth Newspaper.  He granted an injunction because the subject matter, in his view, could never be a matter of public interest and, therefore, he said that the defences of justification, qualified privilege and comment would not run.  But perhaps there is a further answer to your Honour’s question and that is this:  unfortunately, as it seems to us, their Honours in the Full Court, or the majority judgment, declined to deal with the very value that your Honour has in mind, that is, in the question that your Honour puts, there is perhaps involved the value of privacy against values that might attach to public broadcast or the broadcast of matters of public interest.  What the Full Court did, and we say the error in the Full Court at the threshold, was to decline to look at the question of the extent to which its judgment might infringe upon the issue of freedom of speech.  Mr Justice Wright dispatched that question pretty brusquely at page 11 of the application book.

KIRBY J:   I think we have read his Honour’s - - -

MR TOBIN:   Your Honours have seen it.  I was reminding myself of his Honour’s word, he said he had:

a healthy scepticism about the applicability of such glib cliches as “freedom of speech” –

and I am sure those instructing for the ABC were suitably aghast.  At page 30, Mr Justice Evans says this, and this is a matter, we would say, of some concern as a statement of principle:

The genesis for the above rule is concern about fettering concepts of free speech and freedom of the media.  The rule has little force in circumstances such as the present where injunctive relief to prevent unconscionable conduct is the only substantive claim –

What that suggests, those two judgments, at this appellate level, is that where the courts deal with applications for interlocutory relief and the assertion is one of unconscionability, as a basis for presenting the broadcast, it is not relevant to look at the questions such as the exercise of freedom of speech or the public interest in the broadcast, which would get, as I would see it, to the heart of your Honour Justice Kirby’s question to me.  That is, if the matter is simply a prurient inquiry into private activities, it would not pass muster.  But the other side of it, it seems to us ‑ ‑ ‑

KIRBY J:   Can I just ask you, would you be raising, in any way, in support of your argument, any constitutional principle relating to freedom of expression on matters of public and political concern?  Is that relevant or not?

MR TOBIN:   I do not believe so, your Honour.  In other words, we would raise it ‑ ‑ ‑

KIRBY J:   Is not the Constitution the context in which one has to consider all these issues of free speech so that they are not so easily swept aside?

MR TOBIN:   Yes, I accept that, your Honour.  In other words, the principles that the Court has laid down in Lange’s Case would obviously have application.  But, your Honour, I wanted to take the Court to a passage from Mr Justice Needham’s judgment in Church of Scientology because as I said, he accepted the trespass as having been committed, and then he went to the question of conscionability or unconscionability.  He said, “If these charges had been shown to be false” - perhaps the background of that should be filled in briefly, your Honours.  A 17-year old, or a relatively young woman, went to the Church of Scientology, and it was asserted that she had given the church over 14 months, $17,000, and that her free will was constrained by the operation of the church.

Now his Honour accepted trespass as lying at the heart of the matter because they took video based on what they had obtained at a trespass.  And then his Honour says this, and this seems to us to go to the nub of it:

If the charges had been shown to be false, or if an explanation of them had been given in such terms as would show that publication of the making of the charges on this occasion would be unfairly prejudicial…..a case might have been made that publication would be an unconscionable act. 

And that seems to us to underline a very important principle, because with the enjoining of a broadcast where the material has been obtained by another, through a trespass, what his Honour focuses upon is that the unconscionability is not to be answered solely by reference to the fact of the trespass.  The question of unconscionability against the background of the trespass would involve an inquiry as to truth or falsity and would involve an inquiry as to that which was to be broadcast was unfairly prejudicial to the plaintiff in the manner in which it transmitted the accusations to him.

Now, your Honours, that seems to us to represent in the judgment of Mr Justice Needham the necessary refinement if the courts are to allow orders preventing publication by way of broadcast to the community at large.  It raises the sort of principles discussed in Lange’s Case, that they had no bearing upon the mind of the Tasmanian Full Court in those two passages that I put to your Honours. 

Your Honours, we would submit that this is an appropriate leave case, because the scantiness, if one likes, of the evidence, is precisely the picture that both the first instance judge and the appellate court has of the facts and matters to be taken into account in deciding whether or not to grant the interlocutory injunction.  There has been some argument in the literature and in the cases – perhaps this is reflected by the minority judgment of Justice Slicer – as to whether unconscionability itself is capable of sustaining the remedy of injunctive relief, whether unconscionably just of itself.  We would say that unconscionability is not an elastic term whereby revulsion or dislike of the conduct of a defendant will determine by appeal to equitable principles the juridical basis whereby an order for suppression of free speech may be made.

In our submission, this case presents - they never do a perfect opportunity but, as good an opportunity as the Court would want, to explore the limits of the use of the concept of unconscionability and to explore the

requirements for consideration of free speech issues, such as in Lange’s Case, if an exclusive jurisdiction in equity is to be exercised against media publications.  They are our submissions, your Honour.

GLEESON CJ:   Thank you, Mr Tobin.  Yes, Mr McElwaine.

MR McELWAINE:   Yes.  May it please the Court.  Perhaps to elaborate your Honour’s first proposition about whether or not this is a stale proceeding ‑ ‑ ‑

GLEESON CJ:   Mr McElwaine, I am just not sure we are hearing your voice sufficiently amplified.

MR McELWAINE:   Is that any better, your Honours?

GLEESON CJ:   Much better – that is better.

MR McELWAINE:   I will speak up some more, your Honours.  I wanted to commence by amplifying the point which was raised initially by your Honours about whether or not this is a stale proceeding.  His Honour Mr Justice Underwood refused the injunction on 3 May, the appeal was lodged on 5 May, but on 4 May an application was made to the Chief Justice, his Honour Mr Justice Cox, to restrain the publication pending the appeal.  Now he delivered a decision about 6.30 pm on that day where he refused that application and that night, the “7.30 Report” published the material, including excerpts from the video tape.  Now, it has never been suggested, until it was suggested by my learned friend today in argument, that the ABC might wish to publish that excerpt again or, indeed, further excerpts from the video, and that is borne out by the observations made by their Honours Mr Justice Wright and Mr Justice Evans in the Full Court.

KIRBY J:   Yes, but Mr McElwaine, you would know as well as we do that media organisations, for various reasons, keep archival material and every time I hear the Tasmanian tiger mentioned, there is some film which was taken early in the century that was trotted out, and they might want to use this, and at the moment the point that Mr Tobin makes, is that they are under a restraint and they cannot ever use it.

GLEESON CJ:   Have you not seen the pictures of those judges going to court at the opening of law term services?  Every time there is a broadcast about judges they show us kneeling down, standing up, praying, singing?

MR McELWAINE:   Yes.

KIRBY J:   They still show the Chief Justice as the Chief Justice of New South Wales.

GLEESON CJ:   Yes.  They have all got the footage.  So the question is whether the brush-tail possums are going to get the same treatment.

MR McELWAINE:   Of course, the ABC could obtain any sort of film it wanted to, for example, by standing outside the respondent’s premises or by taking films of brush-tail possums in any other particular situation.  All the injunction stops them from doing is using the film which was the product of the trespass for the purposes of publication.  The injunction does not restrain them from discussing this matter as a matter of public interest or from doing other stories or producing other film, provided they do not use film which was unlawfully obtained.

KIRBY J:   Well, that is the question, you see.  That is the issue of whether this is a correct approach and ‑ ‑ ‑

GLEESON CJ:   The case does seem to raise a rather important point though, Mr McElwaine, does it not?

MR McELWAINE:   I would have to concede it raises an issue of principle, and I am not going to stay to trouble the Court to argue that it does not raise an issue of principle.  I say, first, it is a stale point.  Secondly, it was an important consideration in the Full Court that the publication of the film in these circumstances may well be unconscionable.  There has been no dispositive finding of fact as to whether it would or would not unconscionable in the circumstances.  The furtherest the majority decision goes is to say there is a serious issue to be tried about whether publication of a film obtained in these circumstances is unconscionable when we go to trial.

GLEESON CJ:   What do you say is the principle for which the decision of the Full Court stands?

MR McELWAINE:   That there is equitable jurisdiction to enjoin the publication of the fruit of the trespass if it is unconscionable in the circumstances and that is the serious issue to be tried, the question to be tried, which then founds the interlocutory injunction and it may be that when we go to trial there will be lots of facts which will need to be looked at by the trial judge to determine whether the publication of this particular film in these particular circumstances is or is not unconscionable.

KIRBY J:   But is not prior restraint itself a very important principle in our sort of society?  After all, in the court below we have Chief Justice Cox and Justice Underwood of one view and the judges in the Full Court, the majority, of another and Justice Slicer lining up with Chief Justice Cox and Justice Underwood.  So the effective majority of judicial opinion in the Supreme Court has been one way, but by reason of how it falls out, prior restraint has been ordered.

MR McELWAINE:   Yes, except that Justice Underwood and Chief Justice Cox did not have the benefit of extensive argument on the point.

KIRBY J:   No, that is true.

MR McELWAINE:   The matter was dealt with, of course, as an urgent interlocutory application.

KIRBY J:   That is true, but Justice Slicer did and he dissented and as between the two in the majority there are distinct differences in their reasoning to their result.

MR McELWAINE:   Yes.  I should observe, your Honours, I do not put the case on the basis of negligence as was suggested by his Honour Mr Justice Wright.  That was never argued in the Full Court.  I think his Honour made that point in his judgment.  The case was only ‑ ‑ ‑

KIRBY J:   Is that not then a flaw in the reasoning of one of the two judges of the Supreme Court whose order is the order you have to defend?

MR McELWAINE:   Yes, but it does not affect the result.  He may have acted on a wrong principle in that regard but ultimately the result reached was correct, I submit.

KIRBY J:   If I can just ask you this:  the matter that might be important to my deliberation is your point about the trial of the issues.  Of course once the trial takes place then the issue of prior restraint goes away.

MR McELWAINE:   Yes.  There may be many facts which the trial judge has to deal with to determine the issue of unconscionability, for example, how precisely was the film obtained by the second defendant, Animal Liberation, how precisely did it get to the ABC, what degree of foreknowledge did the ABC have about how the film was obtained by the persons unknown, and why did the ABC then approach my client with the film in its hands to spring an interview, as it were, and say, “Well, look at this film and tell us what you think about it.”?  That is the first time my client knew about it was when the video was produced during the course of an on-camera interview.  All of these factors, I submit ‑ ‑ ‑

KIRBY J:   My understanding is there is no dispute but that there was a trespass to put the camera material into your client’s property and a further trespass to remove it.  That is common ground.

MR McELWAINE:   Yes.

KIRBY J:   And that, thereafter, the product of the illicit camera device was handed to your client.  You do not need much more than that, at least for the purpose of the prior restraint question.  It is a trespass.

MR McELWAINE:   Except, if it is a relevant issue to examine the degree of knowledge which the ABC had about how the film was unlawfully obtained, then that is an issue of fact which would have to be investigated and that is an issue which was identified in the New South Wales case of Donnelly v Amalgamated Television Services which is the only other case which has gone as far as the Full Court went in this case, that is to enjoin the third party from publishing the fruit of the trespass, and it was considered important in that case that knowing participation in the abuse by the police in that case, of their powers to search and enter, and collect video material, was a highly relevant consideration to the issue of the injunction.

At this stage we do not know the degree of knowing participation of the applicant in the taking of the film, its distribution and its ultimate publication.  That, I submit, is a relevant factual matter which has not been explored.  We have not even had discovery in this case yet, your Honours.  It has come this far without even those steps having taken place.

KIRBY J:   When is that matter liable for trial?  Is there any indication of when that is likely to be set down for trial?

MR McELWAINE:   It cannot come on for trial unless there is a certificate of readiness filed.  That is ordinarily not filed in this jurisdiction until all interlocutory steps have been completed.  There would at least need to be discovery as between applicant and respondent.  There may or may not be a need for interrogatories and then one would move to the certificate of readiness stage.

KIRBY J:   That could take anything up to a year.

MR McELWAINE:   Certainly, some months.  It certainly could, your Honour.

KIRBY J:   They are your two main points, really.  One, that it is now stale, and two, that the proper course is to let it take its course at trial and at that stage there will be many more facts to weigh up?

MR McELWAINE:   Yes, and a positive or dispositive finding about unconscionability rather than an assumption that there is a serious issue about unconscionability.  I cannot say ‑ ‑ ‑

KIRBY J:   And if the ABC wants it for archival material it can have it then at the end of the trial, if you lose.  They can run it as much as the Tasmanian tiger for all the law would say anything at that stage, if you lost.

MR McELWAINE:   Or it can go and lawfully make its own film today, in its own way, rather than insisting on showing the film of my client’s operations, with the animals having their throats cut.  It is obviously the emotive issue from Animal Liberation’s point of view.  They are the points of principle, your Honour.  The only other point I want to make is that if leave is granted, I submit that this is clearly a test case which raises an issue of general public importance and the leave ought be conditioned on the basis that the applicant pays the respondent’s costs in any event.  If it please, those are my submissions.

GLEESON CJ:   Yes, thank you, Mr McElwaine.  Mr Tobin, what do you say about that last point, concerning the condition as to costs?  This is obviously an issue that has got far more importance for your client than it has for Mr McElwaine’s client.

MR TOBIN:   Your Honour, I only want to make one comment to your Honours about that, and it is that the appeal was lodged by the respondent here after the broadcast, so the appellate process, as it were, has been initiated by the respondent.

KIRBY J:   Yes, but you are the one who is here now.  Are you seeking to take it further?

MR TOBIN:   Yes, that is correct, your Honour.  I want to say no further than that, because I acknowledge that it is of importance to the national broadcaster, as a matter of policy, and to understand the legal limits of its conduct.

GLEESON CJ:   In this matter there will be a grant of special leave to appeal but on condition that the applicant pay the costs of the respondent of this application and of the appeal in any event.  We will adjourn.

MR McELWAINE:   May it please, the Court.

KIRBY J:   This would only be a one‑day case at the most I assume, would it?

MR TOBIN:   Your Honour, it is a short point.  I do not think it would take a day but that often depends on your Honours.

GLEESON CJ:   Very well then.  We will adjourn.

AT 3.23 PM THE MATTER WAS CONCLUDED