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 Act1932 (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".
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63
Case
[2001] HCA 63
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal from the Full Court of the Supreme Court of Tasmania concerning an application for an interlocutory injunction. The respondent, Lenah Game Meats Pty Ltd, sought to restrain the appellant, the Australian Broadcasting Corporation (ABC), from broadcasting footage of its possum processing operations. The footage had been obtained by unknown individuals who unlawfully entered the respondent's premises and installed hidden cameras, and was subsequently provided to the ABC. The respondent alleged that broadcasting the film would cause significant financial harm and distress to viewers.
The central legal issues before the High Court were whether the respondent had a legal or equitable right that could be protected by an interlocutory injunction, and whether the implied freedom of political communication under the Australian Constitution was relevant to the grant of such an injunction. Specifically, the Court had to consider if Australian law recognised a tort of invasion of privacy, whether such a right extended to corporations, and if the circumstances of the film's acquisition and the nature of the information contained within it justified equitable intervention to prevent its broadcast. The Court also examined the scope of the Supreme Court of Tasmania's power to grant interlocutory injunctions under s 11(12) of the Supreme Court Civil Procedure Act 1932 (Tas), particularly the meaning of "just and convenient" in that context.
The High Court allowed the appeal, setting aside the orders of the Full Court of the Supreme Court of Tasmania. The majority reasoned that the respondent had not established a serious question to be tried regarding a breach of confidence, as the information depicted in the film, relating to lawful animal slaughtering operations, was not confidential in nature. The Court reiterated that an injunction is a remedy that protects a legal or equitable right, and in the absence of such a right, or a clear legal wrong, an injunction should not be granted. The Court found that the mere fact that the information was tortiously obtained was insufficient to create an equitable right to restrain its publication, especially when the information itself was not confidential and the broadcaster had not contravened any statute. The implied freedom of political communication was also considered, with the Court indicating that the power to grant an injunction must be exercised in accordance with the rule of law and not based on subjective notions of justice.
Orders
Orders of the court
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.
Background
Background to the litigation
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."
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GLEESON CJ
(dissent)
GAUDRON J
(dissent)
GUMMOW AND HAYNE JJ
(dissent)
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. 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.