Commonwealth v Walsh

[1980] HCA 45

HIGH COURT OF AUSTRALIA

Mason J.

THE COMMONWEALTH v. WALSH

(1980) 147 CLR 61

1 December 1980

Injunctions

Injunctions—Interlocutory—Copyright—Infringement—Fair dealing—Purpose of criticism or review—Copyright Act 1968 (Cth), s. 41.

Decision

December 1.
MASON J. delivered the following written judgment:-
1. In this case there is little to be added to the facts set out in my judgment in The Commonwealth v. John Fairfax &Sons Ltd. (147 CLR 39) . Three additional matters need to be mentioned. Mr. Ackroyd, the general manager of Angus &Robertson, told us that Mr. Walsh had said that he published the book as "a political act". We were not told what Mr. Walsh meant by this statement. Presumably he meant that he was publishing the book as a protest against the Government's refusal to make public the documents or the information which they contain. (at p62)

2. The second matter is that in the well-known book The Washington Connection and Third World Fascism by Chomsky and Herman there is set out a significant part of a secret cable in August 1975 from Australia's Ambassador in Djakarta, Mr. Richard Woolcott, to Canberra the contents of which were identified by Mr. Henderson as being particularly sensitive. Clearly enough the information in question can no longer be regarded as confidential. Mr. Meagher rightly pointed out that the publication in The Washington Connection and Third World Fascism makes nonsense of the suggestion that re-publication of the same material in the defendants' book could prejudice Australia's relations with Indonesia. He goes on to say that the making of an unjustified claim to confidentiality in respect of this cable necessarily attracts suspicion to the sweeping claim made by the plaintiff for confidentiality in respect of other documents. (at p63)

3. This is not a matter which I need to explore. For the reasons given in Fairfax I do not consider that the plaintiff is entitled to an interim injunction to restrain publication of confidential information or on the basis of s. 79 of the Crimes Act. (at p63)

4. But, again, and for similar reasons, I think that the plaintiff is entitled to interim protection of its copyright in documents. The defendants have no defence under s. 42 (1) (a) of the Copyright Act, but they do set up a defence under s. 41. Perhaps they have a better claim than the two newspapers to have engaged in criticism or review of the documents. None the less their problem in the circumstances is to establish that what they have done is "a fair dealing" with the plaintiff's work for "the purpose of criticism or review", when the documents are set out in full in circumstances where the disclosure of the documents may well have been the principal end to be served and the probability is that the documents were leaked, the defendants either knowing or having reason to know that the plaintiff did not consent to the use of its literary work. (at p63)

5. Mr. Meagher has submitted that the circumstances in which the defendants came into possession of the documents are quite irrelevant to the concept of "fair dealing". He says that the thief who steals an intimately revealing, but unpublished, diary from its author and then proceeds to criticize or review it in a journal comes within the concept of "fair dealing" in s. 41. That the diary has been stolen and that the review is published without the author's consent is quite irrelevant to copyright; the only relevance is to the application of the criminal law and of the law of torts, so the argument runs. (at p63)

6. The correctness of this argument is by no means self-evident, to say the least of it. As in Fairfax, I have not been persuaded that the defendants are likely to make out the defence under s. 41 or the common law defence of public interest. (at p63)

7. The final matter is that, with the exception of 14 advance copies of the book, all printed copies of the book were delivered to Angus &Robertson on a consignment basis. Approximately 1,820 copies of the book are still held by Angus &Robertson in a warehouse. (at p63)

8. In the circumstances the plaintiff is entitled to an interim injunction. (at p63)

Orders

Upon the usual undertaking as to damages I restrain the defendants and each of them by themselves their servants and agents until the hearing of the action or further order from publishing distributing or otherwise dealing with (a) the book entitled Documents on Australian Defence and Foreign Policy 1968-1975; and (b) the documents in the book.

Costs of all parties will be costs in the action.

Remit the action to the Supreme Court of New South Wales.