Cruise, T. v Southdown Press P/L

[1993] FCA 242

2-41 / W3

JUDGMENT NO. ........ ........ .. ........ -

CATCHWORDS

Injunction - interim - impending publication of photographs showing child - whether right of privacy - whether misuse of confidential information - whether breach of copyright - whether defamation - whether injunction would amount to final relief - whether injunction futile.

TOM CRUISE & NICOLE KIDMAN V. SOUTHDOWN PRESS PTY. LTD.

NO. VG 80 of 1993

Judge :  GRAY J.

Place: MELBOURNE

Date :  23RD MARCH 1993

IN THE FEDERAL COURT OF AUSTRALIA	) )
VICTORIA DISTRICT REGISTRY	) NO VG 80 of 1993
)
GENERAL DIVISION	)
B E T W E E N :

TOM CRUISE and NICOLE KIDMAN

Applicants

SOUTHDOWN PRESS PTY. LTD.

Respondent

JUDGE : Gray J.

PLACE	: Melbourne
DATE :	23rd March 1993

EX TEMPORE REASONS FOR JUDGMENT

applicants and their desire to maintain their family privacy. I must say that I feel great sympathy for the

It is the case, however, that a right of privacy generally is

not yet recognised by the law in Australia. For that reason, counsel for the applicants have had to endeavour to assert rights to the protection of confidential information, to breach of copyright and to defamation in one form or another. For the reasons that have emerged in our discussion during argument, I do not think that I should grant any injunction with respect to any of those causes of action.

The evidence, such as it is, discloses that the respondent received the photograph, without knowledge at that stage of any obligation of confidence. The confidential nature of the photograph is asserted to be a right to keep private the appearance of the child shown in the photograph.

I am not at all sure that that is a matter which is capable of

being the subject of a claim to impose confidentiality. I am also not persuaded that, upon receipt of the correspondence by the respondent, concerning the way in which the photographs were obtained, which did not mention the quest~on of confidentiality, the respondents were obliged to go to their lawyers and ask them for advice as to whether there was any cause of action, other than those mentioned in the correspondence, which might be available to the applicants and then to assume the success of that cause of action in the applicants' favour and decline publication voluntarily.

As to breach of copyright, I simply do not know
whether the applicants are the owners of the copyright in the photograph concerned. That is a matter of some doubt, on the evidence. Of course, the applicants have available to them

remedies other than an injunction in relation to breach of copyright, if one has occurred. Those are remedies which would be perfectly adequate in respect of a breach of copyright, if the applicants were not attempting to squeeze their claim for privacy into a claim for breach of copyright.

As to the question of defamation, as I have indicated, it is extremely rare for an injunction to be granted to restrain in advance the publication of material alleged to be defamatory.

I should say also that this is a most unusual application, being made without notlce to the respondent and at a very late stage. It has been suggested that it is a claim for an interlocutory injunction. It really has about it a distinct flavour of final relief. I am by no means certain that I should have been disposed to grant an injunction, even if I had been satisfied that there was an arguable case in respect of one or more causes of action, for the reason that I slmply do not know what the practical effect of such an injunction would be. I have no information as to how far advanced the preparation of this magazine is for publication, how much, if at all, it has been distributed at the present time, and how effective or ineffective an injunction might be to prevent it being put lnto circulation. Of course, the Court will not grant an injunction where to do so would be futile.

I do accept that the applicants were prepared to give the usual undertaking in damages and that they would be likely to have the means to satisfy an order for damages, if they were subsequently to fail in the proceeding and the Court were to award damages against them.

For the reasons that I have given, I am of the view
that I should refuse the appl~cation. I make the following

orders :

1.	The application for interlocutory relief is dism~ssed.
2.	The applicants have leave to file and serve an amended application.
3.	The matter be listed for a directions hearing on Tuesday 30th March 1993.
4.	The applicants' costs of this application are reserved.

Counsel for the applicant:	Mr. B.R. Dove and Mr. P.H.
Clarin.
Solicitors for the applicant:	Dwyer & Co.
Date of Hearing:	23rd March 1993
Date of Judgment:	23rd March 1993

I certify that this and the preceding four (4) pages are a true copy of the reasons for judgment of his Honour Justice Gray

Associate:

Date: 23rd April 1993

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