Kidu v Fifer (No. 2)

The case of Kidu v Fifer (No. 2) was before the Federal Court of Australia, where the plaintiff, Kidu, sought supplementary orders to extend the scope of an existing injunction. The defendants, Fifer, had edited a documentary in a manner that removed footage that was the subject of the injunction, replacing it with blackouts and text to provide context to the retained footage. Despite these edits, Kidu argued that the documentary still contained material that was derived from or descriptive of the enjoined content. The defendants had published and distributed the documentary to persons in Canada for the Hot Docs film festival, but it had not yet been exhibited. The court was tasked with determining whether the current version of the documentary contained material that fell within the scope of the injunction and whether supplementary orders should be made to prevent its distribution.

The central legal issue before the court was whether the edits made by the defendants to the documentary sufficiently severed any connection to the enjoined content, or whether the documentary still contained material that was derived from or descriptive of that content. This required an analysis of the extent to which the edits achieved the necessary severance and whether the remaining content still infringed on the plaintiff's rights. Additionally, the court had to consider the timing of the injunction's extension and whether it was appropriate to grant supplementary orders before the documentary had been exhibited.

The court found that the edits made by the defendants did not sufficiently sever the connection between the documentary and the enjoined content. The remaining material in the documentary was still derived from or descriptive of the enjoined content, thus falling within the scope of the injunction. Given the nature of the documentary and its distribution, the court concluded that it was necessary to grant supplementary orders to prevent the further publication and distribution of the documentary. The court emphasised the importance of protecting the plaintiff's rights and preventing any potential harm that might arise from the exhibition of the documentary in its current form. Consequently, the court made the supplementary orders sought by the plaintiff, extending the scope of the injunction to cover the current version of the documentary.