Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd - [2001] HCA 63

HIGH COURT OF AUSTRALIA
GLEESON CJ,
GAUDRON, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
AUSTRALIAN BROADCASTING CORPORATION APPELLANT
AND
LENAH GAME MEATS PTY LTD RESPONDENT
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd
[2001] HCA 63
15 November 2001
H2/2000
ORDER
1.Appeal allowed.

2.Set aside Orders 1, 2 and 3 of the Full Court of the Supreme Court of Tasmania made on 2 November 1999 and in place thereof order that the appeal to that Court be dismissed.

3.The appellant to pay the costs of the respondent of the appeal to this Court.

On appeal from the Supreme Court of Tasmania
Representation:
T K Tobin QC with J C Gibson and R D Glasson for the appellant (instructed by Judith Walker, ABC Ultimo Centre)
S B McElwaine with J F E Bourke for the respondent (instructed by S B McElwaine)
Interveners:
D M J Bennett QC, Solicitor-General of the Commonwealth with A J Abbott and J S Stellios intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)
B M Selway QC, Solicitor-General for the State of South Australia with J C Cox intervening on behalf of the Attorney-General for the State of South Australia (instructed by the Crown Solicitor for South Australia)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd
Equity – Equitable remedies – Interlocutory injunction – Principles to be applied – Need for plaintiff to show a serious question to be tried – Defence that plaintiff has no equity – Nature of discretion to grant interlocutory relief – Relevance of implied freedom of political communication under the Constitution.
Practice and procedure – Interlocutory injunctions – Power of Supreme Court to grant interlocutory injunction – Whether s 11(12) of Supreme Court Civil Procedure Act 1932 (Tas) alters basis on which the Supreme Court has power to grant an interlocutory injunction – Purpose for which power exists to grant an interlocutory injunction – Meaning of "just and convenient".
Torts – Privacy – Whether Australian law recognises a tort of invasion of privacy – Whether right to privacy attaches to corporations – Relevance of implied freedom of political communication under the Constitution to the tort of privacy.
Constitutional law (Cth) – Interpretation of Constitution – Implications from Constitution – Implied freedom of communication concerning government and political matters – Whether law providing for interlocutory injunction against broadcaster infringes implied freedom – Whether injunction if granted would infringe freedom – Relevance of implied freedom to grant of injunction – Whether properly or at all taken into account.
Trespass to land – Trespasser illegally made clandestine film of activities and gave it to a broadcaster – Whether owner has right to restrain publication of film by broadcaster.
Words and phrases – "unconscionability" – "just and convenient" – "interlocutory injunction".
Supreme Court Civil Procedure Act 1932 (Tas), ss 10, 11.

GLEESON CJ. This appeal concerns an application for an interlocutory injunction, pending the hearing of an action brought by the respondent against the appellant and another party, to restrain the broadcasting of a film of the respondent's operations at a "brush tail possum processing facility". The film was made surreptitiously and unlawfully, and was given to the appellant with the evident purpose that the appellant would broadcast it. The appellant probably realised, when it received the film, that it had been made in a clandestine manner. It certainly knew that by the time the application for an injunction was heard. The evidence, unchallenged at this stage, is that the broadcasting would cause financial harm to the respondent.
The proceedings were commenced, by Statement of Claim, in the Supreme Court of Tasmania. They have not yet come on for a final hearing. There was an interlocutory application for an "interim injunction". The application was heard by Underwood J, who dismissed it on three grounds. First, by reference to the facts alleged in the Statement of Claim, which were supported by the evidence, he held that there was no serious question to be tried. Secondly, even assuming that there had been a cause of action disclosed in the Statement of Claim, he held that 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. Thirdly, in any event, damages were an adequate remedy. There was an appeal to the Full Court of the Supreme Court[1]. It was made clear that no action for defamation was being pursued. Accordingly, the second ground upon which Underwood J decided the matter was irrelevant. By majority, (Wright and Evans JJ), the appeal was upheld. An interlocutory injunction was granted. Slicer J dissented, primarily on the ground that Underwood J was right to hold that it had not been shown that there was a serious issue to be tried. Following the decision of Underwood J, and before the hearing before the Full Court, the appellant broadcast a segment of the material, but it was not argued that anything turned on that.
[1]Lenah Game Meats Pty Ltd v Australian Broadcasting Corporation [1999] TASSC 114.
Although the argument in this Court ranged more widely, the appellant contends that Underwood J and Slicer J were correct in holding that, even if the facts alleged in the Statement of Claim were true, they disclosed no legal or equitable basis on which the respondent was entitled to final injunctive relief and, there being no serious issue to be tried between the parties, this was not a proper case for interlocutory relief.
That contention should be addressed first. The procedural context in which it was, and is, raised is familiar, and requires the application of established principles concerning interlocutory relief.
The respondent, as plaintiff, brought an action seeking an injunction and damages. The defendants were the appellant and Animal Liberation Limited, which supplied to the appellant the video tape made as a result of the filming of the respondent's operations. (Animal Liberation Limited is not a party to the present appeal.) The final injunctive relief sought against the appellant was a mandatory injunction requiring the appellant to deliver up to the respondent "all copies of the video or excerpts from it in its possession, custody or power". That relief, if granted, would have the practical effect of permanently preventing the appellant from broadcasting the material on the video without the respondent's permission. The respondent also gave notice, in its Statement of Claim, that it claimed "[a]n interim injunction restraining [the appellant], its servants or agents, from publishing or causing to be published the video or excerpts from it". On the same day as the Statement of Claim was filed, there was also filed an interlocutory application claiming an interim injunction in the terms mentioned above. The application was supported by an affidavit of Mr Kelly, a director of the respondent, who gave evidence of the facts alleged in the Statement of Claim, and explained how the distribution and publication of the material on the video was likely to have an adverse effect on the respondent's business.
Thus, the respondent sought final injunctive relief which would require the appellant to hand over the video, and all copies of, or excerpts from, it, and would prevent the appellant from broadcasting, or further broadcasting, the material on it. Interim relief was sought, in the form of an interlocutory injunction restraining the appellant from publishing the video or excerpts from it pending the hearing of the application for final relief.
Presumably the matter was not dealt with as an urgent application for final relief because the parties, or at least one of them, wished to keep open the possibility of further investigating factual issues that might arise on the pleadings. There does not seem to be much room for dispute about the allegations in the Statement of Claim concerning the making of the video, and how it came into the appellant's possession. However, if and when there is a final hearing, there may be a contest about the allegations concerning damage.
When a plaintiff applies to a court for an interlocutory injunction, the first question counsel may be asked is: what is your equity? If a plaintiff, who has commenced an action seeking a permanent injunction, cannot demonstrate that, if the facts alleged are shown to be true, there will be a sufficiently plausible ground for the granting of final relief, then that may mean there is no basis for interlocutory relief. That is what happened here. Underwood J looked at the allegations in the Statement of Claim, supported as they were by the evidence of Mr Kelly, and, after hearing argument, concluded that, even if those allegations were true, they could not justify the final injunctive relief sought by the respondent. On that ground, he refused interlocutory relief. That approach was in accordance with practice and principle. Of course, if Underwood J made an error in concluding that the respondent had no equity, then his decision was flawed. But, having regard to the way the case was conducted by the parties, he asked the right question. The central issue in this appeal is, or ought to be, whether he gave the right answer.
The nature of the jurisdiction
Sir Frederick Jordan, in his Chapters on Equity in New South Wales, said[2]:
"The purpose of an interlocutory injunction is to keep matters in statu quo until the rights of the parties can be determined at the hearing of the suit."
[2]6th ed (1947) at 146.
That is a sufficient description of the purpose for which the Supreme Court of Tasmania might properly have granted an interlocutory injunction in the present case. It is not a complete description of the circumstances in which an interlocutory injunction may be granted[3]. But it covers this case. The respondent claimed a right, which it sought to have vindicated by a permanent injunction, to prevent the appellant from publishing or broadcasting any of the material on the video tape which had come into its possession. Subject to any argument as to whether damages were an adequate remedy, there was a probability that such right would be rendered worthless if, before the final hearing, the appellant broadcast the material as and when it pleased. In order to preserve the subject matter of the dispute, and to prevent the practical destruction of the right claimed by the respondent before the action could be heard on a final basis, the Supreme Court had power to grant an interlocutory injunction. The immediate source of that power was s 11 of the Supreme Court Civil Procedure Act 1932 (Tas). Power of that nature has a long history, and is exercised according to principle, not unguided discretion. I agree with what is said by Gummow and Hayne JJ as to the relevant principles. For present purposes, what is most significant is that the justice and convenience of granting an interlocutory injunction, in a case such as the present, is to be found in the purpose for which the power exists.
[3]See Spry, Equitable Remedies, 5th ed (1997) at 446-456.
The corollary of the proposition stated by Sir Frederick Jordan is that a plaintiff seeking an interlocutory injunction must be able to show sufficient colour of right to the final relief, in aid of which interlocutory relief is sought. Lord Cottenham LC in The Great Western Railway Company v The Birmingham Railway Company[4] formulated the issue as whether "this bill states a substantial question between the parties". In McCarty v The Council of the Municipality of North Sydney[5], the Chief Judge in Equity described the proposition that a plaintiff seeking an interlocutory injunction must show at least a probability that he will succeed in establishing his title to the relief sought at the final hearing as "so well established that no authority is really needed in support of it".
[4](1848) 2 Ph 597 at 603 [41 ER 1074 at 1076].
[5](1918) 18 SR (NSW) 210 at 211-212.
We are not concerned in the present case with forms of relief, such as the Mareva order, or anti-suit injunctions, which have expanded the boundaries of this area of jurisprudence. Nor are we concerned with some special statutory jurisdiction. A plaintiff claims a right and seeks to have it vindicated by a permanent injunction. It claims to be entitled to restrain the appellant, permanently, from making use of a video. The justice and convenience of imposing interim restraint, pending the hearing of the final action, if it exists, lies in the need to prevent the practical destruction of that right before there has been an opportunity to have its existence finally established.
In Castlemaine Tooheys Ltd v South Australia[6], Mason ACJ summarised the principles governing the grant or refusal of interlocutory injunctions in both private law and public law litigation. He said:
"In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction."
[6](1986) 161 CLR 148 at 153. See also
Underwood J held that the respondent failed to satisfy either (1) or (2).
A dispute arose in the course of argument as to "whether interlocutory injunctive relief to prevent publication can be granted without any underlying cause of action to be tried". In the context of the present case, this is puzzling. There could be no justification, in principle, for granting an interlocutory injunction here other than to preserve the subject matter of the dispute, and to maintain the status quo pending the determination of the rights of the parties. If the respondent cannot show a sufficient colour of right of the kind sought to be vindicated by final relief, the foundation of the claim for interlocutory relief disappears.
In a context such as the present, a proposition that the respondent has a "free-standing" right to interlocutory relief is a contradiction in terms. This is demonstrated, not only by the purpose for which interlocutory relief is granted, but by the form of the relief. The Full Court granted the injunction sought "until further order". A more usual form of interlocutory injunction would be "until the hearing of the action or further order", but the effect is the same. If there were a "free-standing" right to injunctive relief, why would the injunction be limited in time? If there is no serious question to be tried because, upon examination, it appears that the facts alleged by the respondent cannot, as a matter of law, sustain such a right, then there is no subject matter to be preserved. There is then no justice in maintaining the status quo, because that depends upon restraining the appellant from doing something which, by hypothesis, the respondent has no right to prevent.
Unconscionability is a concept that may be of importance in considering the nature and existence of the claimed right which a plaintiff seeks to vindicate. It is a matter that requires examination in the present case. But, in these circumstances, it cannot be used to conjure up a right to interlocutory relief where there is no right to final relief. If the respondent cannot demonstrate that there is at least a serious question as to whether the appellant is free to keep the video and to use it as it thinks fit, how could conscience require or justify temporary restraint upon the use of the video by the appellant? If there is no serious question to be tried in the action, how can it be unconscientious to keep and use the video in the meantime? Unconscionability has a role to play in the present case; but that role is in the evaluation of the claim to final relief. Such an evaluation became necessary at the interlocutory stage because it was contended that the plaintiff had no equity.
The extent to which it is necessary, or appropriate, to examine the legal merits of a plaintiff's claim for final relief, in determining whether to grant an interlocutory injunction, will depend upon the circumstances of the case. There is no inflexible rule. It may depend upon the nature of the dispute. For example, if there is little room for argument about the legal basis of a plaintiff's case, and the dispute is about the facts, a court may be persuaded easily, at an interlocutory stage, that there is sufficient evidence to show, prima facie, an entitlement to final relief. The court may then move on to discretionary considerations, including the balance of convenience.
In the present case, both before Underwood J and in the Full Court, careful consideration was given to the legal basis upon which the respondent claimed permanent injunctive relief in its action. That was appropriate. Apart from the respondent's assertions as to the harm it would suffer if the appellant broadcast, or broadcast further, the material in its possession, there was little contest about the essential facts alleged in the Statement of Claim. The time available for argument was not so limited that the parties did not have a full opportunity of presenting their cases. The main issue between them was whether, having regard to the circumstances in which the film was made, and then passed on to the appellant, the appellant could be restrained from making use of the film. The respondent's case on that issue was not going to improve between the interlocutory hearing and the ultimate trial. There was no injustice to the parties in giving full consideration to that issue. If, upon such consideration, it appeared that the outcome of the final hearing might turn upon facts that were in dispute, or had not been fully explored, then discretionary considerations may have become decisive. But if it appeared, as to Underwood J it did, that the respondent's case was not going to get any better; that the facts alleged in the Statement of Claim, and supported by the affidavit evidence, even if true, did not make out an entitlement to prevent the appellant from using the film; and that therefore the respondent had no equity, then it was proper to deny interim relief, for there was no justice in restraining the appellant from broadcasting the material.
The scales of justice are a powerful image in the judicial process. But the imagery should not lead to the misapprehension that the essential function of a court is to decide every case by a discretionary preference for one possible outcome over another. If Underwood J had concluded that there was a probability that, if the evidence remained the same, the respondent at a final hearing would have been entitled to permanent injunctive relief, then he would have had to undertake a discretionary exercise, to determine whether the balance of convenience favoured the granting of an interim injunction. But the first issue, which was whether the respondent, on the facts alleged, had a right to prevent the appellant making such use of the film as it pleased, raised a question of principle. The answer must be capable of application in a variety of circumstances. As the arguments on either side were developed, they invoked concepts of unconscionability, free speech, rights of property, and privacy. In relation to free speech, implied rights said to be protected by the Constitution were called in aid. These are all legitimate matters to be taken into account in identifying a principle. But they are not commensurate. The Constitution's protection of freedom of political communication, for example, precludes the curtailment of such freedom by the exercise of legislative or executive power[7]. It restricts law-making power and executive action. And, because the common law of Australia conforms to the Constitution, it has an important role in the formulation of common law principle. But it is not a mere balancing factor in a discretionary judgment as to the preferred outcome in a particular case, to be given such weight as to a court seems fit.
[7]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 560.

It is not contended that the appellant has contravened, or threatens to contravene, any statute. It appears that the people from whom the appellant received the video broke the law, perhaps in a number of respects. And it is pointed out that the appellant knows that the respondent's activities were filmed unlawfully, and without the respondent's consent. But if the respondent has the right to prevent the appellant's use of the film, that right must emerge from some principle of general application. The appellant says that it has broken no law, and there is no principle which justifies an order preventing it from broadcasting the material that has come into its possession. It does not seek, or require, judicial approval of its conduct. It maintains that it is free to broadcast, simply because there is no law against it.
The facts
The essential facts alleged by the respondent, and established by the evidence, are as follows.
The respondent is a processor and supplier of game meat. It sells possum meat for export. Tasmanian brush tail possums are killed and processed at licensed abattoirs. The respondent's business is conducted according to law, and with the benefit of all necessary licences. The methods by which the possums are killed, although lawful, are objected to by some people, including people associated with Animal Liberation Limited, on the ground that they are cruel.
A person or persons unknown broke and entered the respondent's premises and installed hidden cameras. The possum-killing operations were filmed, without the knowledge or consent of the respondent. The film was supplied to Animal Liberation Limited, which, in turn, supplied the film, or part of it, to the appellant, with the intention that the appellant would broadcast it. Although the Statement of Claim does not make this specific allegation, the appellant is now aware, if from no other source than the evidence of Mr Kelly, that the film was obtained by unlawful entry and secret surveillance. It probably inferred that, even before Mr Kelly's affidavit was filed.
It is not suggested that the operations that were filmed were secret, or that requirements of confidentiality were imposed upon people who might see the operations. The abattoir is, no doubt, regularly visited by inspectors, and seen by other visitors who come to the premises for business or private reasons. The fact that the operations are required to be, and are, licensed by a public authority, suggests that information about the nature of those operations is not confidential. There is no evidence that, at least before the events giving rise to this case, any special precautions were taken by the respondent to avoid its operations being seen by people outside its organisation. But, like many other lawful animal slaughtering activities, the respondent's activities, if displayed to the public, would cause distress to some viewers. It is claimed that loss of business would result. That claim is not inherently improbable. A film of a vertically integrated process of production of pork sausages, or chicken pies, would be unlikely to be used for sales promotion. In the present state of the evidence, the case has been argued on the basis, and all four judges in the Supreme Court have accepted, that the respondent will suffer some financial harm if the film is broadcast. The nature of that harm was described by Mr Kelly as follows:
"The distribution and publication of this film is likely to adversely and substantially affect the [respondent's] business. The film is of the most gruesome parts of the [respondent's] brush tail possum processing operation. It shows possums being stunned and then having their throats cut. It is likely to arouse public disquiet, perhaps even anger, at the way in which the [respondent] conducts its lawful business. This is no different from any animal slaughtering operation in Australia, which is normally hidden from public view."
The exact meaning of "hidden from public view" is not clear, and was not explained. The evidence does not show that it is easier, or more difficult, for a member of the public to enter abattoirs generally, or the respondent's premises in particular, than it is to enter any other private property where a manufacturing operation is being carried on, or, for that matter, commercial premises. There is a sense in which most activities conducted on private property are "hidden from public view". But it may be necessary to examine more closely the meaning of such an expression if questions of legal confidentiality arise.
The respondent's claim of right
In order to give focus to the principles invoked by the respondent in support of its claim to be entitled to require the appellant to hand over the film in its possession, and to restrain the appellant from broadcasting the film, it is necessary to identify the essential elements of the claim.
As an article of personal property, the film itself does not belong to the respondent. Presumably it belongs to the people who sent it to Animal Liberation Limited, and they are content for it to remain in the appellant's possession. There is no claim by the respondent to copyright, or any other form of intellectual property, in relation to the film, or what is depicted on the film. No trade secrets are at risk.
The film is the means by which the trespassers recorded, and intended to communicate to others, what goes on in the slaughtering process. Because it is an effective method of doing so, it is clearly relevant to any harm which the respondent is likely to suffer. But does it have additional relevance? If the trespassers had simply entered the premises themselves, secretly observed what was happening, and later described on television what they had seen, what difference would that have made to the respondent's case, except on the question of damage? If a mechanic, called to the premises to repair machinery, had later described the slaughtering process to a public audience, would the case be different? One possible answer to those questions is that the film itself is a visual image, and a sound recording, in a potent form, which the respondent did not wish to be available for public display. The images and sounds recorded on a film may themselves constitute information; and the circumstances in which the film was made, the nature of the activities recorded, a person's concern that they not be seen by the general public, and an inference that trespassers and broadcasters or publishers knew of that concern, could make the image and the sounds confidential.
The respondent contends that the conduct of the appellant in publishing a film known to have been taken as the result of a trespass would on that account alone be unconscionable, and should be restrained. An alternative submission was made by analogy with established principles concerning confidential information. It was to the following effect. A person who comes into possession of information, which that person knows to be confidential, may come under a duty not to publish it[8]. The usual elements for an equitable remedy are, first, that the information is confidential, secondly, that it was originally imparted in circumstances importing an obligation of confidence, and thirdly, that there has been, or is threatened, an unauthorised use of the information to the detriment of the party communicating it[9]. It is unnecessary to go into the circumstances in which an "innocent" recipient of confidential information may be restrained from using it. Here, it is conceded that information about the nature of the processing is not confidential, and was not imparted in confidence. But, it is argued, all information obtained as the result of trespass ought to be treated in the same way as confidential information.
[8]Prince Albert v Strange (1849) 1 Mac & G 25 [41 ER 1171]; Duchess of Argyll v Duke of Argyll [1967] Ch 302; Attorney-General v Guardian Newspapers Ltd
[9]Coco v A N Clark (Engineers) Ltd [1969] RPC 41 at 47 per Megarry J.
The Attorney-General of the Commonwealth, intervening, made the following submissions:
1.A court of equity has jurisdiction to grant an injunction to restrain the use of information where the information has been obtained by a trespasser, or by some other illegal, tortious, surreptitious or otherwise improper means and use of the information would be unconscionable.
2.The jurisdiction extends to ordering an injunction against any person to whom the information has been conveyed, whether or not that person is implicated in the trespass or other illegal, tortious, surreptitious or otherwise improper conduct.
3.In determining whether the use of the information would be unconscionable, the court should take account of all the circumstances of the case, including the competing public interests in preserving the rule of law, protecting private property and in otherwise protecting the relevant information, and the public interest in freedom of speech.
4.In all cases, the fact that the information was improperly obtained should weigh heavily against allowing the information to be used.
5.The onus of showing that the publication is in the public interest should rest on the person seeking to publish the improperly obtained information.
The arguments appeared to proceed upon the basis that the relevant information is what the processing of possums, as carried out by the respondent, looks, and sounds, like. The film was the means adopted by the trespassers for obtaining, recording, and communicating, that information. The film is their property; just as if a less well equipped intruder had used a note book, or a sketch pad, to record in written or pictorial form what was seen and heard. The slaughtering process is not confidential, and information about it was not obtained in circumstances of trust and confidence, or otherwise importing an obligation of good faith. The trespassers acted illegally, tortiously and surreptitiously, not merely to obtain the information, but to obtain it in a form calculated to facilitate its public display, and to maximise its potential impact upon those to whom it was ultimately conveyed. It is the conduct of the trespassers in obtaining and recording the information that is said to expose the appellant to restraint upon the use it may make of the product of that conduct.
That way of looking at the case, and characterising the relevant information, may explain the way the case was argued in the Full Court, and the surprising concentration on the question whether there is a "free-standing" right to an interlocutory injunction even if the Statement of Claim discloses no cause of action. In the Full Court, the present respondent, (there the appellant), made a limited challenge to the reasoning of Underwood J. Wright J recorded a concession by counsel that the respondent had no maintainable action for breach of confidence. Slicer J recorded that no issue of breach of confidentiality was raised.
It is clear that there was no relationship of trust and confidence between the respondent and the people who made, or received, the film. It is also clear that if, by information, is meant the facts as to the slaughtering methods used by the respondent, such information was not confidential in its nature. But equity may impose obligations of confidentiality even though there is no imparting of information in circumstances of trust and confidence. And the principle of good faith upon which equity acts to protect information imparted in confidence may also be invoked to "restrain the publication of confidential information improperly or surreptitiously obtained"[10]. The nature of the information must be such that it is capable of being regarded as confidential. A photographic image, illegally or improperly or surreptitiously obtained, where what is depicted is private, may constitute confidential information. In Hellewell v Chief Constable of Derbyshire[11], Laws J said:
"If someone with a telephoto lens were to take from a distance and with no authority a picture of another engaged in some private act, his subsequent disclosure of the photograph would, in my judgment, as surely amount to a breach of confidence as if he had found or stolen a letter or diary in which the act was recounted and proceeded to publish it. In such a case, the law would protect what might reasonably be called a right of privacy, although the name accorded to the cause of action would be breach of confidence. It is, of course, elementary that, in all such cases, a defence based on the public interest would be available."
[10]The Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR 39 at 50 per Mason J citing Lord Ashburton v Pape [1913] 2 Ch 469 at 475 per Swinfen Eady LJ.
[11][1995] 1 WLR 804 at 807; [1995] 4 All ER 473 at 476.
I agree with that proposition, although, to adapt it to the Australian context, it is necessary to add a qualification concerning the constitutional freedom of political communication earlier mentioned. The present is at least as strong a case for a plaintiff as photography from a distance with a telephoto lens. But it is the reference to "some private act" that is central to the present problem. The activities filmed were carried out on private property. They were not shown, or alleged, to be private in any other sense. That is consistent with the concession referred to above.
When, in Attorney-General v Guardian Newspapers Ltd (No 2) Lord Goff of Chieveley gave examples of cases where an obligation of confidence would be imposed, even in the absence of some confidential relationship, his Lordship referred to "obviously confidential" documents, or "secrets of importance to national security" coming into the possession of a member of the public[12]. What his Lordship described as "a public interest in the maintenance of confidences" extends to matter which a reasonable person would understand to be intended to be secret, or to be available to a limited group to which that person does not belong.
[12][1990] 1 AC 109 at 281.
In Douglas v Hello! Ltd[13], there was some difference of opinion between members of the English Court of Appeal as to whether a celebrity wedding to which 250 guests were invited, and at which photography was closely controlled, was private. However, images of the wedding were treated as confidential information.
[13][2001] 2 WLR 992; [2001] 2 All ER 289.
An argument for the respondent invoked privacy in a somewhat different context. The respondent invited this Court to depart from old authority[14]; declare that Australian law now recognises a tort of invasion of privacy; hold that it is available to be relied upon by corporations as well as individuals; and conclude that this is the missing cause of action for which everyone in the case has so far been searching.
[14]Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479.
If the activities filmed were private, then the law of breach of confidence is adequate to cover the case. I would regard images and sounds of private activities, recorded by the methods employed in the present case, as confidential. There would be an obligation of confidence upon the persons who obtained them, and upon those into whose possession they came, if they knew, or ought to have known, the manner in which they were obtained.
By current standards, the manner in which the information in the present case was obtained was hardly sophisticated, and, if there were a relevant kind of privacy invaded, the invasion was not subtle. The law should be more astute than in the past to identify and protect interests of a kind which fall within the concept of privacy. As Rehnquist CJ recently observed in a case in the Supreme Court of the United States concerning media publication of an unlawfully intercepted telephone conversation[15]:
"Technology now permits millions of important and confidential conversations to occur through a vast system of electronic networks. These advances, however, raise significant privacy concerns. We are placed in the uncomfortable position of not knowing who might have access to our personal and business e-mails, our medical and financial records, or our cordless and cellular telephone conversations."
[15]Bartnicki v Vopper 69 USLW 4323 at 4331 (2001).
But the lack of precision of the concept of privacy is a reason for caution in declaring a new tort of the kind for which the respondent contends. Another reason is the tension that exists between interests in privacy and interests in free speech. I say "interests", because talk of "rights" may be question-begging, especially in a legal system which has no counterpart to the First Amendment to the United States Constitution or to the Human Rights Act 1998 of the United Kingdom. The categories that have been developed in the United States for the purpose of giving greater specificity to the kinds of interest protected by a "right to privacy" illustrate the problem[16]. The first of those categories, which includes intrusion upon private affairs or concerns, requires that the intrusion be highly offensive to a reasonable person. Part of the price we pay for living in an organised society is that we are exposed to observation in a variety of ways by other people.
[16]See, for example, Prosser, "Privacy", (1960) 48 California Law Review 383; Restatement of the Law Second, Torts, §652A.
There is no bright line which can be drawn between what is private and what is not. Use of the term "public" is often a convenient method of contrast, but there is a large area in between what is necessarily public and what is necessarily private. An activity is not private simply because it is not done in public. It does not suffice to make an act private that, because it occurs on private property, it has such measure of protection from the public gaze as the characteristics of the property, the nature of the activity, the locality, and the disposition of the property owner combine to afford. Certain kinds of information about a person, such as information relating to health, personal relationships, or finances, may be easy to identify as private; as may certain kinds of activity, which a reasonable person, applying contemporary standards of morals and behaviour, would understand to be meant to be unobserved. The requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private.
It is unnecessary, for present purposes, to enter upon the question of whether, and in what circumstances, a corporation may invoke privacy. United Kingdom legislation recognises the possibility[17]. Some forms of corporate activity are private. For example, neither members of the public, nor even shareholders, are ordinarily entitled to attend directors' meetings. And, as at present advised, I see no reason why some internal corporate communications are any less private than those of a partnership or an individual. However, the foundation of much of what is protected, where rights of privacy, as distinct from rights of property, are acknowledged, is human dignity. This may be incongruous when applied to a corporation. The outcome of the present case would not be materially different if the respondent were an individual or a partnership, rather than a corporation. The problem for the respondent is that the activities secretly observed and filmed were not relevantly private. Of course, the premises on which those activities took place were private in a proprietorial sense. And, by virtue of its proprietary right to exclusive possession of the premises, the respondent had the capacity (subject to the possibility of trespass or other surveillance) to grant or refuse permission to anyone who wanted to observe, and record, its operations. The same can be said of any landowner, but it does not make everything that the owner does on the land a private act. Nor does an act become private simply because the owner of land would prefer that it were unobserved. The reasons for such preference might be personal, or financial. They might be good or bad. An owner of land does not have to justify refusal of entry to a member of the public, or of the press. The right to choose who may enter, and who will be excluded, is an aspect of ownership. It may mean that a person who enters without permission is a trespasser; but that does not mean that every activity observed by the trespasser is private.
[17]R v Broadcasting Standards Commission; Ex parte British Broadcasting Corporation [2000] 3 WLR 1327 at 1336-1337; [2000] 3 All ER 989 at 998-999.

It is necessary, then, to return to the principal arguments advanced on behalf of the respondent. The first point to note about these arguments is the manner in which the concept of unconscionability is employed. In the case of the argument put by the respondent, the conduct (or threatened conduct) of the appellant in publishing a film known to have been taken as the result of a trespass is characterised as unconscionable. It does not matter whether, in order to justify that characterisation, it is thought necessary to add a reference to the harm likely to be suffered by the respondent; at this stage such harm is not in contest. Such unconscionability, if established, is then said to provide the ground in equity for the relief claimed in the action. In the case of the argument put by the Attorney-General, unconscionability is introduced as an additional element, apparently connecting the wrongful conduct of the trespassers in obtaining the film to the use of the information by the appellant. It is elaborated in proposition 3, stated above.
No doubt it is correct to say that, if equity will intervene to restrain publication of the film by the appellant, the ultimate ground upon which it will act will be that, in all the circumstances, it would be unconscientious of the appellant to publish. But that leaves for decision the question of the principles according to which equity will reach that conclusion. The conscience of the appellant, which equity will seek to relieve, is a properly formed and instructed conscience. The real task is to decide what a properly formed and instructed conscience has to say about publication in a case such as the present. If the Attorney-General is correct, it will take account of a number of factors additional to the circumstances in which the film was obtained, including (although this is not spelled out) what the appellant knew or ought to have known about those circumstances.
The necessary first step is to say that, subject to possible qualifications of the kind set out in proposition 3, the circumstances in which the film was made, known as they now are to the appellant, mean that the appellant is bound on conscience not to publish. That proposition is not self-evidently correct, and cannot be established by mere assertion. The appellant is in the business of broadcasting. I accept that, although a public broadcaster, its position is not materially different from a commercial broadcaster with whom it competes. In the ordinary course of its business it publishes information obtained from many sources, thereby contributing to the flow of information available to the public. The sources from which that information may come, directly or indirectly, cover a wide range of behaviour; some of it impeccable, some of it reprehensible, and all intermediate degrees. If the appellant, without itself being complicit in impropriety or illegality, obtains information which it regards as newsworthy, informative, or entertaining, why should it not publish? It is, of course, subject to any relevant statute law, including criminal law, and to the law of defamation, breach of confidence, negligence, and any other potential liability in tort or contract. But we have arrived at this point in the argument because of the respondent's inability to point to any specific legal inhibition on publication. The respondent must explain why the appellant is bound in conscience not to publish; and, bearing in mind the consequences of such a conclusion for the free flow of information, it is not good enough to say that any person who fails to see this dictate of conscience is merely displaying moral obtuseness.
The step from the illegality of the behaviour of the trespassers to a conclusion that the appellant must not publish, even though the appellant was not party to the illegality, itself involves an important matter of principle: the extent to which the civil courts will lend their aid to the enforcement of the criminal law. There are, in a number of Australian jurisdictions, statutes which prohibit or regulate secret surveillance, and deal with the consequences of breaches, including the use that may be made by third parties of the products of such surveillance. Legislation of that kind was in issue, for example, in John Fairfax Publications Pty Ltd v Doe[18]. Some may think there ought to be legislation covering a case such as the present; but there is not. And it is only necessary to consider the complexity which such legislation, when enacted, takes, and the exceptions and qualifications that are built into it, to see the need for caution in embracing superficially attractive generalisations.
[18](1995) 37 NSWLR 81.
In Bartnicki v Vopper, Stevens J, speaking for the majority of the Supreme Court of the United States, said[19]:
"The normal method of deterring unlawful conduct is to impose an appropriate punishment on the person who engages in it. If the sanctions that presently attach to a violation of [the statute] do not provide sufficient deterrence, perhaps those sanctions should be made more severe. But it would be quite remarkable to hold that speech by a law-abiding possessor of information can be suppressed in order to deter conduct by a non-law-abiding third party."
[19]69 USLW 4323 at 4328 (2001).
That statement, it is true, was made in a context influenced by the First Amendment to the United States Constitution. But Lord Wilberforce, in
[20][1978] AC 435 at 476-484.
[21](1980) 147 CLR 39 at 49-50.
Gouriet v Union of Post Office Workers[20] examined the reasons of history and policy that explain why enforcement of the criminal law by civil injunction at the suit of a private litigant is an exceptional and narrowly confined jurisdiction. In TheCommonwealth of Australia v John Fairfax & Sons Ltd[21] Mason J rejected an attempt to rely upon a contravention of the Crimes Act 1914 (Cth) as a basis to restrain the publication of classified government documents.
Next, reliance was placed upon the act of trespass. Again, the difficulty is to bridge the gap between the trespassers' tort and the appellant's conscience.
There is judicial support for the proposition that the trespassers, if caught in time, could have been restrained from publishing the film. In Lincoln Hunt Australia Pty Ltd v Willesee[22] some representatives of a producer of material for television entered commercial premises, with cameras rolling, and harassed people on the premises. Their conduct amounted to trespass. Young J had to consider whether to restrain publication of the film. Because of the effrontery of the conduct of the defendants, he concluded this was a case for large exemplary damages, and that damages were an adequate remedy. On that ground, he declined an injunction. In accordance with settled practice, and principle, however, the first question he asked himself was as to the plaintiff's equity. Because of the ground on which he declined relief, he did not need to decide that question which, he said, took him "into very deep waters"[23]. However, he expressed the following tentative opinion[24], which has been taken up in later cases[25]:
"In the instant case, on a prima facie basis I would have thought that there is a lot to be said in the Australian community where a film is taken by a trespasser, made in circumstances as the present, upon private premises in respect of which there is some evidence that publication of the film would affect goodwill, that the case is one where an injunction should seriously be considered."
[22](1986) 4 NSWLR 457.
[23](1986) 4 NSWLR 457 at 461.
[24](1986) 4 NSWLR 457 at 464.
[25]eg Rinsale Pty Ltd v Australian Broadcasting Corporation (1993) Aust Torts Reports ¶81-231 at 62,380; Emcorp Pty Ltd v Australian Broadcasting Corporation [1988] 2 Qd R 169 at 174; Takhar v Animal Liberation SA Inc [2000] SASC 400 at [75]-[80].
If, in the present case, the appellant had been a party to the trespass, it would be necessary to reach a conclusion about the question which Young J thought should seriously be considered. I would give an affirmative answer to the question, based on breach of confidence, provided the activities filmed were private. I say nothing about copyright, because that was not argued. But the case was one against the trespassers. That was why exemplary damages were available, and constituted a sufficient remedy.
A rather different case was Donnelly v Amalgamated Television Services Pty Ltd[26]. Police, executing a search warrant, took a video recording of the plaintiff, in his underpants, in a bedroom. The video found its way into the hands of a television broadcaster. An action was brought to restrain publication of the video and for an interlocutory injunction. Hodgson CJ in Eq, in the orthodox manner, first considered whether the plaintiff had shown a serious question to be tried[27]. He said[28]:
"If police, in exercising powers under a search warrant or of arrest, were to enter into private property and thereby obtain documents containing valuable confidential information, albeit not protected by the law concerning intellectual property, I believe they could in a proper case be restrained, at the suit of the owner of the documents, from later using that information to their own advantage, or to the disadvantage of the owner, or passing the information on to other persons for them to use in that way; and if other persons acquired such information from the police, knowing the circumstances of its acquisition by the police, then I believe those other persons could likewise be restrained.
I believe the same applies to material obtained in that way which is gratuitously humiliating rather than confidential …".
[26](1998) 45 NSWLR 570.
[27](1998) 45 NSWLR 570 at 573.
[28](1998) 45 NSWLR 570 at 575.
A film of a man in his underpants in his bedroom would ordinarily have the necessary quality of privacy to warrant the application of the law of breach of confidence. Indeed, the reference to the gratuitously humiliating nature of the film ties in with the first of the four categories of privacy adopted in United States law, and the requirement that the intrusion upon seclusion be highly offensive to a reasonable person.
For reasons already given, I regard the law of breach of confidence as providing a remedy, in a case such as the present, if the nature of the information obtained by the trespasser is such as to permit the information to be regarded as confidential. But, if that condition is not fulfilled, then the circumstance that the information was tortiously obtained in the first place is not sufficient to make it unconscientious of a person into whose hands that information later comes to use it or publish it. The consequences of such a proposition are too large.
Conclusion
Underwood J was correct to dismiss the respondent's application on the first ground of his decision. It is unnecessary to consider the other ground.
I would allow the appeal. I agree with the orders proposed by Gummow and Hayne JJ.
GAUDRON J. I agree with the judgment of Gummow and Hayne JJ and with the orders they propose. Because this case raises a distinct issue with respect to injunctions, however, I desire to add some short observations of my own.
It is beyond controversy that the role of Australian courts is to do justice according to law – not to do justice according to idiosyncratic notions as to what is just in the circumstances. Hence, the rule of law and not the rule of judges. Necessarily, that basic proposition informs and controls the power conferred on the Supreme Court of Tasmania by s 11(12) of the Supreme Court Civil Procedure Act 1932 (Tas) to grant an interlocutory injunction "in all cases in which it shall appear to the Court or judge to be just and convenient that such order should be made".
In recent times, the word "injunction" has come to be used to mean any order by which a court commands a person to do or refrain from doing some particular act. Thus, it has come to be used in connection with orders of that kind that are specifically authorised by statute[29]. It has also been used to describe orders which a court makes to protect its own processes such as an asset preservation order (sometimes called a "Mareva injunction")[30] and some anti-suit injunctions[31]. Leaving those matters to one side, however, an injunction is a curial remedy. Because it is a remedy, it is axiomatic that it can only issue to protect an equitable or legal right or, which is often the same thing, to prevent an equitable or legal wrong[32]. So to say, is simply to emphasise that the function of courts is to do justice according to law.
[29]See, for example, the power conferred by s 80 of the Trade Practices Act 1974 (Cth) discussed in Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591. In that case Gummow J noted, at 618 [67], that "[t]he regime established by s 80 differs in several respects from that applying to injunctions as traditionally understood." See also Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 at 394 [27]-[29] per Gaudron, McHugh, Gummow and Callinan JJ; Duns, "The Statutory Injunction: An Analysis", (1989) 17 Melbourne University Law Review 56.
[30]See Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at 32-33 [35] per Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ; Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 at 399-401 [41]-[42] per Gaudron, McHugh, Gummow and Callinan JJ.
[31]See CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 391-392 per Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ.
[32]Note that it may be that, in the case of some public wrongs, an injunction will issue notwithstanding that no equitable or legal right is infringed. See Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 at 257-260 [24]-[32], 267-268 [49]-[52] per Gaudron, Gummow and Kirby JJ; Hanbury, "Equity in Public Law", in Essays in Equity, (1934) 80 at 112; Sykes, "The Injunction in Public Law", (1953) 2 University of Queensland Law Journal 114 at 117-120. More generally, with regard to the broad scope of equitable remedies available in order to enforce obligations required by public law, see Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135 at 157-158 [56]-[58] per Gaudron J; Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 at 628-629 [97]-[98] per Gummow J.
There is no statutory provision specifically authorising the grant of an order restraining publication of material obtained in the circumstances in which the appellant, the Australian Broadcasting Corporation ("the ABC"), obtained the material in issue in this case. And for the reasons given by Gummow and Hayne JJ, Lenah Game Meats Pty Limited ("Lenah") points to no equitable or legal right which is or will be infringed by, nor to any equitable or legal wrong involved in, the publication of that material by the ABC. It is, therefore, not entitled to any legal or equitable remedy, including by way of injunction.
The only other basis upon which the injunction might have been granted by the Full Court was to protect that Court's own processes. Indeed, it may well be that the interlocutory injunction is properly to be seen as the paradigm example[33] of an order made to protect a court's processes, the interlocutory injunction being, originally, the means by which a court of equity ensured that it was not disabled from granting final injunctive relief in the event that an entitlement to that relief were to be established[34]. Assuming that to be so, however, a need to protect the Court's own processes could only arise in this case if it were arguable that Lenah had an entitlement to final injunctive relief. That not being so, there is no basis upon which the interlocutory injunction could properly have been granted by the Full Court.
[33]This was said of Mareva injunctions (or more correctly, "asset preservation orders") in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at 32 [35] per Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ; affirmed in Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 at 399-401 [41]-[42] per Gaudron, McHugh, Gummow and Callinan JJ. Similar comments were made with respect to anti-suit injunctions in CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 391-392 per Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ.
[34]See Preston v Luck (1884) 27 Ch D 497 at 505 per Cotton LJ; Heavener v Loomes (1924) 34 CLR 306 at 326 per Isaacs and Rich JJ; Harriman v Northern Securities Co 132 F 464 (1904) and the authorities therein cited. See also Jordan, Chapters on Equity, 6th ed (1947) at 146; Meagher, Gummow and Lehane, Equity: Doctrines and Remedies, 3rd ed (1992) at 589-591 [2167]-[2168]; Spry, Equitable Remedies, 6th ed (2001) at 453-454.
GUMMOW AND HAYNE JJ. The appellant, the Australian Broadcasting Corporation ("the ABC"), seeks from this Court an order discharging an interlocutory injunction granted by the Full Court of the Supreme Court of Tasmania (Wright and Evans JJ; Slicer J dissenting) on 2 November 1999. The injunction restrains, until further order, the ABC, its servants and agents:
"from distributing, publishing, copying or broadcasting a video tape or video tapes filmed by a trespasser or trespassers showing [Lenah's] brush tail possum processing facility at 315 George Town Road Rocherlea in Tasmania".
The Full Court allowed an appeal by the present respondent, Lenah Game Meats Pty Ltd ("Lenah"), against an order made on 3 May 1999 by a judge of the Supreme Court (Underwood J) dismissing Lenah's application for interlocutory relief. On 4 May, Cox CJ had refused an interlocutory injunction in aid of what was then the pending appeal by Lenah[35]. After that decision by the Chief Justice and before the hearing of the appeal, the ABC had televised segments of the video tape in question.
[35]See Paringa Mining & Exploration Co Plc v North Flinders Mines Ltd (1988) 165 CLR 452 at 459‑460.
In this Court, the ABC submits that the interlocutory injunction granted by the Full Court should be discharged. An interlocutory injunction is granted to preserve the status quo pending the determination at trial of the rights of the parties to final relief. Here, it is said that, quite apart from any question of the balance of convenience, as a matter of law there could be no serious question to be tried and the action was doomed to fail[36]. The ABC submits that this would be the outcome because Lenah has not pointed to any activity by the ABC, the engagement in which or the repetition of which has infringed or will infringe any legal or equitable right of Lenah. In short, the ABC submits that Lenah had "no equity" in the sense of "an immediate right to positive equitable relief"[37] in the equitable jurisdiction of the Supreme Court of Tasmania. In order to appreciate what is involved in that submission and the other submissions by the parties, it is necessary first to describe the proceeding in the Supreme Court in which the interlocutory application was made.
[36]Fejo v Northern Territory (1998) 195 CLR 96 at 121‑122 [26].
[37]The phrase used by Deane J in The Commonwealth v Verwayen (1990) 170 CLR 394 at 434. See also Giumelli v Giumelli (1999) 196 CLR 101 at 113‑114 [9]-[10]; Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 at 628 [96].
The Supreme Court action
On 29 March 1999, by writ and statement of claim, Lenah instituted an action against the ABC and Animal Liberation Limited ("Animal Liberation"). In its pleading, Lenah alleged, and the matter is not disputed, that at all material times it has been a processor of, amongst other things, brush tail possums at its premises at Rocherlea ("the premises") which are licensed as an export abattoir by the Australian Quarantine Inspection Service.

The rationale offered for judicial caution is usually that free speech is precious beyond all other things, or that the defendant might be able to justify, or that the defendant might otherwise find a defence in qualified privilege, in short that the plaintiff might ultimately fail. There is nothing special about any of these matters except, perhaps, the first. Apart from it, they are possible outcomes in almost all contested proceedings. To give all weight to the first matter, free speech, is to overlook, or to give insufficient weight to the continued hurt to a defamed person pending trial; the greater resources generally available to a defendant to contest proceedings; the attrition by interlocutory appeals to which a plaintiff may be subjected; the danger that by the time of vindication of the plaintiff's reputation by an award of damages not all of those who have read or heard of the defamation may have become aware of the verdict; the unreasonableness of requiring the plaintiff, in effect, at an interlocutory stage, unlike in other proceedings for an interlocutory injunction, to prove his or her case[521]; and, the fact that rarely does a publication later, rather than earlier, do any disservice to the defendant or to the opportunity to debate the issues in an informed but not defamatory way, and therefore to free speech.
[521]cf Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 at 163-165.
I am unconvinced as to the need for the continued operation of the doctrine of judicial restraint with respect to interlocutory injunctions adopted by judges – it is entirely a judge-made doctrine. In any event, it can have no operation in a case of this kind. There is no reason here why the respondent should not have its injunction continued.
Orders
The appeal should be dismissed with costs.

Patrick Stevedores Operations No 2 Pty
Ltd v Maritime Union of Australia (1998) 195 CLR 1 at 24 [21]; Fejo v Northern Territory (1998) 195 CLR 96 at 121-122 [26]-[27].

(No 2) [1990] 1 AC 109 at 260, 268.