Lenah Game Meats Pty Limited v Australian Broadcasting Corporation - [1999] TASSC 114

[1999] TASSC 114

CITATION: Lenah Game Meats Pty Limited v Australian Broadcasting Corporation [1999] TASSC 114

PARTIES:  LENAH GAME MEATS PTY LIMITED
  v
  AUSTRALIAN BROADCASTING CORPORATION

TITLE OF COURT:  SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  FCA 35/1999
DELIVERED ON:  2 November 1999
DELIVERED AT:  Hobart
HEARING DATES:  25 May 1999
JUDGMENT OF:  Wright, Slicer and Evans JJ
CATCHWORDS:

Equity- Equitable remedies - Injunctions - Interlocutory injunctions - Whether serious issue to be tried - Other cases - Whether identifiable cause of action necessary to sustain injunction. Sufficiency of other remedies - Balance of convenience - Video filmed by trespasser - Restraint of television broadcast.

Lincon Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457; Emcorp Pty Ltd v Australian Broadcasting Corporation [1988] 2 Qd R 169; Rinsale Pty Ltd v ABC [1993] ACTR 81,231; Donnelly v Amalgamated Television Services Pty Ltd & Anor (1998) 45 NSWLR 570; Norwich Pharmacal Co & Ors v Customs & Excise Commissioners [1974] AC 133; The Commonwealth of Australia v John Fairfax & Sons Limited and Others (1980-1981) 147 CLR 39; Smith Kline & French v SEC Department of Health (1995) ALR 87; Moorgate Tobacco Co Limited v Philip Morris Limited and Another (1984-1985) 156 CLR 414, followed.
White v Mellin [1895] AC 154; Bryan v Maloney (1994-1995) 183 CLR 609; Frank Perre & Ors v Apand Pty Ltd [1999] HCA 36; South Carolina Co v Assurantie NV [1987] AC 24; Cardile & Ors v LED Builders Pty Limited [1999] HCA 17 at 34, considered.
Kaye v Robertson [1991] FSR 62; Northern Territory v Mengel (1996) 185 CLR 307, distinguished.
Aust Dig Equity [336]

REPRESENTATION:

Counsel:
             Appellant:  S B McElwaine
             Respondent:  S J Holt
Solicitors:
             Appellant:  Shaun McElwaine
             Respondent:  Murdoch Clarke

Judgment Number: [1999] TASSC 114
Number of Paragraphs: 82

Serial No 114/1999
File No FCA 35/1999

LENAH GAME MEATS PTY LIMITED
v AUSTRALIAN BROADCASTING CORPORATION

REASONS FOR JUDGMENT FULL COURT

WRIGHT J
SLICER J (Dissenting)
EVANS J

2 November 1999

Orders of the Court

Appeal allowed.
Orders of Underwood J made on 3 May 1999, set aside.
Until further order, the respondent, its servants or agents be restrained from distributing, publishing, copying or broadcasting a video tape or video tapes filmed by a trespasser or trespassers showing the appellant's brush tail possum processing facility at 315 George Town Road, Rocherlea in Tasmania.

Serial No 114/1999
File No FCA 35/1999

LENAH GAME MEATS PTY LIMITED
v AUSTRALIAN BROADCASTING CORPORATION

REASONS FOR JUDGMENT FULL COURT

WRIGHT J

2 November 1999

A number of decisions by Australian superior courts of first instance have endorsed the view that if a trespasser seeks to give wide public exposure through the medium of television to video taped material obtained during, and as a result of, the trespass, jurisdiction exists to grant an injunction preventing the publication or dissemination of that material (Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457; Emcorp Pty Ltd v Australian Broadcasting Corporation [1988] 2 Qd R 169; Rinsale Pty Ltd v ABC [1993] ACTR 81,231).

In the present case, the respondent ("the ABC") is not alleged to have trespassed. It is alleged, however, that unknown persons trespassed on the appellant's premises and made a video tape of slaughtering operations which were subsequently delivered to the ABC. It is not alleged that the ABC was implicated in, or privy to, the trespass. The ABC has already shown segments of the video tape following the Chief Justice's refusal to grant an interim injunction, pending the disposal of this appeal.

The appellant now asks this Court to review Underwood J's refusal to grant an injunction on 3 May 1999 and to make an order prohibiting further publication of the video taped material.

Counsel for the appellant argues that the Court has jurisdiction to make such an order, whether or not the appellant has an existing cause of action against the ABC. Counsel for the appellant freely concedes that his client has no maintainable action for defamation, or for breach of confidence. However, he argues it would be unconscionable for the ABC to knowingly use the fruits of an act of trespass and, accordingly, it should be restrained from doing so. Counsel freely concedes the novelty of this contention, but invites the Court to be robust in its approach. He points out that in each of the cases referred to above, although the defendant was alleged to be a trespasser who had made the relevant video tape during a trespass, the courts concerned had assumed power to prohibit the publication of the tape, rather than to forbid continuation or repetition of the trespass.

It was the perceived absence of a valid cause of action by the actor Gordon Kaye which prevented his being able to secure an injunction to prevent publication of photographs taken without his consent whilst convalescing in hospital (Kaye v Robertson [1991] FSR 62), and a secondary basis for the Court of Appeal's decision was expressed to be that if the taking of the photographs could be regarded as an assault, an injunction would be an inappropriate remedy as Kaye's purpose was not to prevent a further assault, but to prevent the defendants from profiting from their conduct.

If the Australian decisions already referred to are correct, neither of these grounds for the decision in Kaye would appear to be supportable. In my opinion, the Australian decisions are to be preferred and should be followed.

For my part, I would be content to acknowledge the proposition for which the appellant contends, viz, that as part of its auxiliary jurisdiction the Court has power to issue an injunction to prevent the use of material obtained unlawfully in such a way as to cause harm to the individual against whom the unlawful act was committed, whether or not that individual can establish a cause of action in tort or equity against the person sought to be enjoined (cf White v Mellin [1895] AC 154). However, it seems to me that in circumstances such as the present, it is at least arguable that an actionable tort would be committed by the ABC were it to publish the relevant video tape.

It may be going too far to assert that by publishing the tape, knowing it to be the product of unlawful activity, the ABC would assume vicarious liability for the act of the original trespassers, and, since the rejection of the Beaudesert principle in Northern Territory v Mengel (1996) 185 CLR 307, an action on the case would not succeed, but I think it is at least arguable that by publication the ABC may be exposing itself to an action in negligence. The elements of such an action were discussed and neatly summarised by Professor Fleming (The Laws of Torts 6th edn) at 98 - 99 as follows:

"Although it may be historically correct that the parent of negligence as an independent basis of liability was 'negligence' as a mode of committing certain torts, like nuisance or trespass, it is important to grasp at the outset that negligence is not a state of mind, but conduct that falls below the standard regarded as normal or desirable in a given community. The subjective notion of personal 'fault' has long been discarded in favour of the stricter, impersonal standard of how a reasonable person should have acted in the circumstances. In this manner, while retaining a verbal link with the moral criterion of fault, the admonitory function of the principle has been largely overshadowed for the sake of compensating accident victims, regardless of the 'wrongdoer's' subjective blameworthiness.
…
The element of the cause of action for negligence may, therefore, be itemised as follows:
1    A duty, recognised by law, requiring conformity to a certain standard of conduct for the protection of others against unreasonable risks. This is commonly known as the 'duty issue'.
2    Failure to conform to the required standard of care or, briefly, breach of that duty. This element usually passes under the name of 'negligence'.
3    Material injury resulting to the interests of the plaintiff. Since the modern action for negligence traces its descent from the old form of action on the case, damage is of the gist of liability. Merely exposing someone to danger is not an actionable wrong if the hazard is averted in time. Nor is there any question here of vindicating mere dignitary interests or compensating fright or apprehension in the absence of ascertainable physical injury, such as traumatic shock. Also, for the purpose of the statute of limitations, time runs against the cause of action, not from the date of the negligent conduct but from injury ¾ an important advantage over suing for breach of contract.
4    A reasonably proximate connection between the defendant's conduct and the resulting injury, usually referred to as the question of 'remoteness of damage' or 'proximate cause'.
5    The absence of any conduct by the injured party prejudicial to his recovering in full for the loss he has suffered. This involves a consideration of two specific defences, contributory negligence and voluntary assumption of risk."

The fact that the potential loss to the appellant is economic only would not necessarily be an impediment to success (Bryan v Maloney (1994 - 1995) 183 CLR 609 and Frank Perre & Ors v Apand Pty Ltd [1999] HCA 36). As pointed out by the High Court in the latter case, proximity is not an invariable test for liability and on the basis of the principles discussed and applied in that decision, the broadcasting activities contemplated by the present respondent could well render its conduct actionable at the suit of the appellant upon proof of damage caused thereby. However, the matter was not argued before us and there is no need to express a concluded opinion on the question.

Nonetheless it seems clear enough that the granting of an injunction is not dependent upon the existence of an enforceable cause of action by the appellant against the individual to be enjoined and this much was conceded by counsel for the respondent.

In Williams v Marac Australia Ltd [1986] 5 NSWLR 529, Hodgson J recognised that the Registrar-General could be the subject of an injunction forbidding the registration of documents if the injunction is "necessary in the interests of justice". He voiced similar views in Donnelly v Amalgamated Television Services Pty Limited & Anor [1998] NSWSC 509, where he said:

"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."

In Norwich Pharmacal Co & Ors v Customs & Excise Commissioners [1974] AC 133 at 145 - 146, Buckley LJ said:

"If a man has in his possession or control goods the dissemination of which, whether in the way of trade or, possibly, merely by way of gifts (see Upmann v Forester, 24 Ch D 231) will infringe another's patent or trade mark, he becomes, as soon as he is aware of this fact, subject to a duty, an equitable duty, not to allow those goods to pass out of his possession or control at any rate in circumstances in which the proprietor of the patent or mark might be injured by infringement ensuing. The man having the goods in his possession or control must not aid the infringement by letting the goods get into the hands of those who may use them or deal with them in a way which will invade the proprietor's rights. Even though by doing so he might not himself infringe the patent or trade mark, he would be in dereliction of his duty to the proprietor. This duty is one which will, if necessary, be enforced in equity by way of injunction: see Upmann v Elkan, LR 12 Eq 140; 7 Ch App 130."

and the Law Lords in the House of Lords expressed views in the same case to the effect that a party who voluntarily becomes "mixed up" in some activity involving a breach of the plaintiff's rights may be subjected to an appropriate order, notwithstanding the absence of a right of action against that party.

Spry, Equitable Remedies, 5th edn at 340 observes:

"… an injunction may issue where what is in question is a need to prevent the defendant from acting in a manner which is not in breach of his legal obligations but which is nonetheless unconscionable, as being contrary to established equitable principles or doctrines."

and as a footnote, adds:
"On a strict view it would be fallacious to say that in these cases an injunction is a form of protection of equitable rights. The right to an injunction (or to such other equitable relief as is material) is pro tanto itself the equitable right in question; and to justify the grant of an injunction by reference to an underlying equitable right may involve accordingly a petitio principii." [My emphasis.]

Lord Brandon of Oakbrook in South Carolina Co v Assurantie NV [1987] AC 24 at 40 said:

"… the power of the High Court to grant injunctions is, subject to two exceptions to which I shall refer shortly, limited to two situations. Situation (1) is when one party to an action can show that the other party has either invaded, or threatens to invade, a legal or equitable right of the former for the enforcement of which the latter is amenable to the jurisdiction of the court. Situation (2) is where one party to an action has behaved, or threatens to behave, in a manner which is unconscionable."

At 41, he added:
"It is difficult, and would probably be unwise, to seek to define the expression 'unconscionable conduct' in anything like an exhaustive manner. In my opinion, however, it includes, at any rate, conduct which is oppressive or vexatious or which interferes with the due process of the court."

The following questions arise and need to be considered in relation to an application for an interlocutory injunction in cases such as the present:

(a)     Whether on the evidence there is a serious issue to be tried.
(b)     Whether the appellant has made out a prima facie case.
(c)     Whether damages will be an insufficient remedy for the alleged conduct complained of.
(d)     Whether the balance of convenience is in favour of the granting of an injunction.
I think that questions (a) and (b) must obviously be answered in the affirmative. As to (c), the appellant says that irreparable damage to goodwill may eventuate. This has not been contradicted by evidence or arguments by the respondent but, in any event, it must be observed that as the appellant concedes the absence of a cause of action against the respondent which would support an award of damages, this question has little, if any, bearing upon the issue. In any event, I should record my dissent from the approach of Young J in Lincoln Hunt Australia Pty Ltd v Willesee (supra), a case in which serious damage to goodwill was also alleged, where he said, at 464:
"The availability of exemplary damages takes away any problems there may be for the plaintiff in quantifying damages because even after the telecast it may be that the plaintiff's goodwill may not have been affected at all or it can demonstrate a fall-off of business. In either case the jury may award, if it considers it appropriate to do so, large exemplary damages. There is no dispute that the defendants are able to meet such demands, if awarded, and in such circumstances it seems to me hard to show that irreparable damage would be suffered by the plaintiff if an injunction were not granted."

Exemplary damages are not compensatory in character and although they may be large, this is not always the case. The respondent's means may be taken into account in assessing exemplary damages and although the ABC may be assumed to have the ability to pay any award made, this will not always be so. A respondent in any given case may be quite impecunious. In my opinion, in circumstances such as the present, one can have no confidence that damages will be available or, if available, that damages will be an adequate remedy.

I am also satisfied that the balance of convenience (d), is in the appellant's favour. There is no basis for assuming that the ABC has spent large sums of money on a program which includes the video taped material, nor is there any reason to suppose that the subject matter is one of particular public interest. It seems highly likely that much of the video taped activity would be unsuitable for general viewing. It must be noted that the appellant does not seek to prohibit a discussion of its operations; it merely seeks to prevent the respondent broadcasting the vision and sound recorded by the trespassers. I must say that, in any event, I have a healthy scepticism about the applicability of such glib clichés as "freedom of speech", which are so often relied on to justify the dissemination of material which the powerful controllers of the mass media choose to place before the public.

I can see no basis for concluding that the balance of convenience favours the ABC. I am satisfied that the balance is heavily weighted to the appellant and for this and the other reasons discussed, I would be in favour of allowing the appeal and granting an injunction in the terms sought.
File No FCA 35/1999

LENAH GAME MEATS PTY LIMITED
v AUSTRALIAN BROADCASTING CORPORATION

REASONS FOR JUDGMENT FULL COURT

SLICER J
2 November 1999

This appeal concerns the power of a court to grant an interlocutory injunction in circumstances where there exists no cause of action on the part of the party seeking such an injunction.

The appellant was the processor of animals (brush tail possums) at premises licensed as an export abattoir. At times undiscovered, unknown persons entered those premises and installed cameras which recorded, audio visually, the aspects of the processing operation. The recorded material was provided to Animal Liberation Limited, a corporation interested in animal welfare which was a co-defendant to these proceedings commenced by the appellant. Animal Liberation Limited provided the material to the respondent which, in turn, decided to publish some of the provided footage as part of a program concerning the matter.

The appellant commenced proceedings against Animal Liberation Limited and the respondent, by way of writ. The statement of claim pleaded (inter alia):

"4   On dates not known by the Plaintiff but prior to 16 March 1999 the Second Named Defendant gave to the First Named Defendant a video tape with sound of approximately ten minutes duration which video showed aspects of the Plaintiffs brush tail possum processing facility and in particular the stunning, and killing of possums filmed under the circumstances described in paragraphs 2 and 3 (the video).
5    It is the intention of the First Named Defendant to incorporate excerpts of the video in a nationally televised programme known as 'The 7:30 Report' which programme is to be published either on 30 or 31 March 1999.
6    The Plaintiff:
(a)   has not consented to the filming, of any part of its possum processing, operation;
(b)   has not consented to the making, of or distribution of video and audio tapes of its possum processing operation nor the video;
(c)   has not and does not consent to the First Named Defendant using excerpts of tapes which show its possum processing operation nor the video.

7 Publication of the video is likely to cause the Plaintiff damage."

The appellant sought as against the respondent:

"(a)An interim injunction restraining the First Named Defendant, its servants or agents, from publishing, or causing to be published the video or excerpts from it.

(b)A mandatory injunction requiring the First Named Defendant to deliver up to the Plaintiff all copies of the video or excerpts from it in its possession, custody or power;
(c)An injunction restraining the Second Named Defendant from distributing, copying, or causing to be published by others the video or excerpts from it or the contents of it.
…
(f)As against each Defendant interim injunctions; Further or other relief."

No specified cause of action giving rise to damages was pleaded against the respondent. In March 1999, the appellant sought an interim injunction to restrain the respondent from publishing, or further publishing, the material. The learned primary judge declined to grant the interim injunction. He stated that he was satisfied:

"… that the film was taken covertly without the permission of the plaintiff and by trespassers, however there is no evidence to suggest that either the first or second defendant, by their servants or agents, were the trespassers."

His Honour concluded that the statement of claim:
"… discloses on its face no cause of action against either defendant, and upon that basis I've reached the clear view that the plaintiff is not entitled to interlocutory relief."

His reasoning was that:
Interlocutory relief is only granted to preserve the status quo in circumstances where it would be just between the parties to do so. The status quo is preserved pending the resolution of a cause of action relied upon by the plaintiff, and in the authorities [referred to by counsel] where injunctive relief was given in each case … there was plainly a legitimate cause of action on the pleadings."

The learned primary judge next dealt with the matter on the assumption that on one view of the pleadings it could be said that an action for defamation was raised. Assuming the pleadings raise an arguable cause of action, his Honour declined to exercise his discretion, stating:

"Mr Holt, in his submission, says that there may be sufficient facts pleaded in the statement of claim to set up a claim for damages for defamation. I frankly doubt that. Mr Gunson didn't rely upon it in his submissions, although to be fair, when Mr Holt raised it he did. Paragraph seven of the Statement of Claim alleges that publication of the video is likely to cause the plaintiff damage. Defamatory material by the Defamation Act S 5(1) … provides that an imputation concerning the plaintiff that is likely to cause injury in his profession or trade may be relied upon as a cause of action, but there's no assertion in these pleadings other than the video is likely to cause the plaintiff damage. However, if I'm wrong about that and there is sufficient statement of fact in the statement of claim to sustain a cause of action in defamation this is not a case where the discretion should be exercised in favour of the applicant. The principles upon which interlocutory relief in defamation cases should be exercised is set out in the case to which Mr Holt referred me, the Church of Scientology of California Incorporated v Reader's Digest Services, and applying in particular a fundamental principle, namely that an injunction will not go or have the effect of restraining the discussion in the press of matters of public interest or concern. Further, there's another basis in my view for not granting the relief and that is the basis upon which Young J in the Lincoln Hunt v Willesee case declined to do it at the end of the day, namely that on the material before me there's no reason to suppose that, at least against the first named defendant, damages will not provide an adequate remedy. So for all those reasons the application for interlocutory relief will be dismissed."

The fact that the learned primary judge did refuse the grant of injunctive relief in an exercise of discretion based on acceptance of the existence of a cause of action, is sufficient basis to dismiss the appeal, which claims failure to find the existence of a cause of action or that no such cause of action was necessary. Prior restraint of free expression requires a much higher threshold than that required for the preservation of an asset or status which is the subject of proceedings (Bonnard v Perryman [1891] 2 Ch 269; Attorney-General v British Broadcasting Corporation [1981] AC 303; TV3 Network Services Ltd v Fahey [1999] 2 NZLR 129). Assuming the pleading that publication would occasion harm to the appellant was eventually made out, the appropriate remedy would be one of damages if the publication was found to be defamatory. Such was not claimed by the appellant, but the learned primary judge exercised his discretion in accordance with the relevant principles. The issue before his Honour did not involve property or an asset preservation order in relation to a claim for damages (Pelechowksi v The Registrar Court of Appeal [1999] HCA 19). For this reason alone, the appeal ought be dismissed.

The appellant seeks review on the basis that the learned primary judge erred in his determination that in order to grant interim injunctive relief, there must first exist an arguable cause of action. Since the parties conducted their respective cases on this basis, and the issue has import beyond the circumstances of the case (the material has since been published), it remains appropriate to examine the issues. The grounds of appeal claim:

"1   That the learned trial Judge erred in law and or in fact in determining that the appellant had no arguable cause of action against the respondent to restrain it from distributing, publishing, copying or broadcasting, a video or videos filmed by a trespasser or trespassers showing the plaintiff's brush tail possum process facility at 315 George Town Road Rocherlea in Tasmania;
2    That the learned trial Judge erred in law and or in fact in determining that the appellant did not have an arguable case that the Supreme Court of Tasmania has jurisdiction to restrain the respondent from distributing, publishing, copying or broadcasting a video or videos filmed by a trespasser or trespassers showing the plaintiff's brush tail possum process facility at 315 George Town Road Rocherlea in Tasmania;
3    That the learned trial Judge erred in law and or in fact in determining that the appellant did not have an arguable cause of action against the respondent to restrain it from distributing, publishing, copying or broadcasting a video or videos filmed by a trespasser or trespassers showing the plaintiff's brush tail possum process facility at 315 George Town Road Rocherlea in Tasmania when, in the circumstances of this case, such video or videos or copies thereof had been obtained by a person or persons unknown whilst committing an offence within Tasmania;
4    That the learned trial Judge erred in law and or in fact in determining, that the plaintiff did not have an arguable case to establish that the Supreme Court of Tasmania had jurisdiction to restrain the respondent from distributing, publishing, copying or broadcasting a video or videos filmed by a trespasser or trespassers showing the plaintiff's brush tail possum process facility at 315 George Town Road Rocherlea in Tasmania when in the circumstances of this case such video or videos or copies thereof had been obtained by a person or persons unknown whilst committing an offence in Tasmania;"

There was evidence before the learned primary judge that the appellant would suffer harm in the event of publication of the material. The harm was not insignificant and might have included the loss of existing and potential export markets. There was evidence that the material had been obtained by an act of trespass. The notice of appeal raises the following questions:

1    Whether a Court exercising equitable jurisdiction has power to grant interim injunctive relief may do so, independent of a cause of action identified in the pleadings.
2    Whether the existence of a serious issue, claim of harm or interference with a claimed right, which is not otherwise legally enforceable, permits remedy.
3    Whether the remedy of equitable injunctive relief applies to the product or "fruit" of the tort of another.

Limitations of the existence and exercise of equitable injunctive power by reason of territoriality, nature and location of assets, arbitration clauses, the existence of proceedings in other jurisdictions and the like, have given rise to much complexity, contradiction and judicial refinement in the United Kingdom. Competing approaches have been taken by the Court of Appeal, House of Lords and the Privy Council. (Norwich Pharmacal v Customs and Excise Commissioners [1974] AC 133, Siskina (Cargo Owners) v Distos SA [1979] AC 210, Mercedes Benz v Leiduck [1996] 1 AC 284, Channel Tunnel Group v Balfour Beatty Ltd [1993] AC 334).

Developments in technology which enable surveillance, the electronic transfer of assets or the recording of events to be conducted within minutes or without physical presence or trespass, create problems which do not fit easily with the traditional remedies provided by equity. Whilst the basic concepts of equity remain as relevant as ever, their application is now made more difficult. In the process, it sometimes appears that the rules are defined by the exceptions. The absence of legislative response can likewise make it more difficult for the law to provide adequate remedy to intrusions permitted by technology. Thus, intrusion without trespass has overtaken the common law proposition that there is no tort by an act of looking. (Victoria Park Racing and Recreation Grounds Co Limited v Taylor (1937) 58 CLR 479, Moorgate Tobacco Co Limited v Phillip Morris Limited (No 8) (1984) 156 CLR 414).

The legacy of Mareva (Mareva Compania Naviera SA v International Bulkcarriers SA [1975] 2 Lloyd's Rep 509) (but see Scarlia J in, Grupo Mexicano de Desarrollo, SA, et al, v Alliance Bond Fund, Inc, et al 527 US 1 (1999), note 9 and Kirby J in Cardile & Ors v LED Builders Pty Limited [1999] HCA 17 at 34, note 108 as to Nippon Yusen Kaisha v Karageorgis [1975] 2 Lloyd's Rep 137) designed to prevent the removal of assets has been the extension of equity into areas of intellectual property and the transmission of information on the bases of exception and extension, rather than through the development of a separate doctrine or a return to the original framework of equitable principles. That approach, albeit inevitable, has resulted in competing answers being given to similar problems. In the United States, the proposition that equity (adopted in that jurisdiction by the Judicial Act 1789) conferred:

"… authority to administer in equity suits the principles of the system of judicial remedies which had been devised and was being administered by the English Court of Chancery at the time of the separation of the two countries."

has long been accepted (Atlas Life Ins Co v W I Southern, Inc, 306 US 563, 568 (1939)). However, the Supreme Court, in a majority decision, has rejected any application of a Mareva power to the disposition of property of a person not the subject of judgment. In the words of Scalia J, who delivered the majority judgment at 21 - 25:
"The parties debate whether Mareva was based on statutory authority or on inherent equitable power. See Brief for Petitioners 17, n 8; Brief for Respondents 35-36. Regardless of the answer to this question, it is indisputable that the English courts of equity did not actually exercise this power until 1975, and that federal courts in this country have traditionally applied the principle that courts of equity will not, as a general matter, interfere with the debtor's disposition of his property at the instance of a nonjudgment creditor. We think it incompatible with our traditionally cautious approach to equitable powers, which leaves any substantial expansion of past practice to Congress, to decree the elimination of this significant protection for debtors."

In Tasmania, the Supreme Court Civil Procedure Act 1932 ("the Act"), Pt I, grants extensive power to the court. The act does not confine jurisdiction to "cause of action" but refers to rights, duties, estates, proceedings, questions, and the like. In particular, the Act provides:

"10 ¾ Subject to the express provisions of any other Act, in every cause or matter commenced in the Court, law and equity shall be administered according to the following provisions of this section:
(1) If any plaintiff or petitioner claims to be entitled to any equitable estate or right, or to relief upon any equitable ground against any deed, instrument, or contract, or against any right, title, or claim whatsoever asserted by any defendant or respondent in such cause or matter, or to any relief founded upon a legal right which heretofore could only have been given by the Court in its jurisdiction in equity, the Court or judge shall give to such plaintiff or petitioner the same relief as ought to have been given by the Court in its jurisdiction in equity in a suit or proceeding for the like purpose properly instituted before the commencement of this Act.
(6) Subject to the provisions of this Act for giving effect to equitable rights and other matters of equity, and to the other express provisions of this Act, the Court and every judge thereof shall recognize and give effect to all legal claims and demands, and all estates, titles, rights, duties, obligations, and liabilities existing by the common law or by any custom or created by any statute, in the same manner as the same would have been recognized and given effect to if this Act had not passed."

A court has power even though a precise cause of action is not pleaded (Byers v Surgeon [1909] QSR 230 at 246 - 247). In that respect, it could be said that although counsel for the appellant did not claim that the pleadings comprised an identifiable cause of action, the court possessed jurisdiction because they were capable of raising a claim of defamation even if, upon trial, the defamation was found to be justified. If such be the case, then the exercise of discretion on the part of the learned primary judge was one permitted by a grant of power and, as such, is unavailable on this appeal.

In the circumstances of this case, although counsel disavows reliance on a particular cause of action, the appellant contends that if an action can be identified, then it affords power to grant interim relief. In addition, the appellant relies upon wider contentions, namely:

1    Power to grant interim relief is afforded if the pleadings raise a "serious issue" or "sufficient interest" and it is unnecessary for a court to consider whether ultimately there exists a cause of action. The right to an injunction is, in itself, the equitable right in question.
2    Power attaches to the product of a trespass.
3    A court of equity ought not be inhibited by precedent in cases where the provision of a remedy will prevent future economic harm.

Injunctions

An early distinction between law and equity was the capacity of equity to enjoin conduct before the harm had been occasioned. Holdsworth (A History of English Law 7 Ed, Vol 1) states at 458:

"The courts at common law might give a remedy when the wrong has been done, they could not intervene to prevent it. Such interference was an early subject of the Chancellor's Jurisdiction."

Central to the tension between the jurisdictions was the capacity of courts of equity to modify, refine or develop principles to provide for the changing needs of society. Equity had recognised as a principle Ubi Jus Ibi Remedium, ie, there is no wrong without a remedy. In Broom's Legal Maxims 9 Ed 131 - 132, the position is stated in the following terms:
"Jus signifies here 'the legal authority to do or to demand something' and remedium may be defined to be the right of action, or the means given by law, for the recovery or assertion of a right. According to this elementary maxim, whenever the common law gives a right or prohibits an injury, it also gives a remedy …
It appears, then, that remedium, although sometimes used as synonymous with actio, has, in the above maxim, a more extended signification than the word 'action' in its modern sense. An 'action' is, in fact, one peculiar mode pointed out by the law for enforcing a remedy, or for prosecuting a claim or demand, in a Court of justice ¾ … an action is merely the legitimate mode of enforcing a right, whereas remedium must here be understood to signify rather the right of action …
The principle adopted by Courts of law accordingly is, that the novelty of the particular complaint alleged in an action on the case is no objection, provided that an injury cognisable by law be shown to have been inflicted on the plaintiff; in which case, although there be no precedent, the common law will judge according to the law of nature and the public good. It is, however, important to observe this distinction, that, where cases are new in principle, it is necessary to have recourse to legislative interposition in order to remedy the grievance; but where the case is only new in the instance, and the sole question is upon the application of a principle recognised in the law to such new case, it will be just as competent to Courts of justice to apply the principle to any case that may arise two centuries hence as it was two centuries ago."

However, there remained the limitation that the harm (actual or potential) was occasioned by an event or conduct which the law recognised as a compensable injury. As Broome observed at 133:

"Such damage is terms damnum absque injuria, and for that no action can be maintained: the maxim, ubi jus inbi remedium, does not apply; for there is no jus, no legal right to demand that the act which causes the damage shall not be done and therefore there is no remedium."

Thus, although remedies could be modified or developed, those remedies were still required to be in aid of a recognised right or protection of interest. As Wharton states in Legal Maxims 2 ed (1892) at 185:
"Though the remedy here alluded to may be said to apply to all possible abuse of right by wrong, … it may, however, be more particularly said to apply to all those cases where the common or statute law gives a right, or prohibits a wrong; and generally, whether or not any actual damage has arisen from violation of the right."

Thus, the grant of remedy (interim or otherwise) has no existence separate from the claim of right, duty or interest, which is affected by the conduct of another and the injury or harm must be of a category recognised by the law as warranting judicial intervention. It is said that the development of the law in any other way is fraught with danger. As Scalia J observed in Grupo Mexicano (supra) at 24 - 25:

"We set them forth only to demonstrate that resolving them in this forum is incompatible with the democratic and self-deprecating judgment we have long since made: that the equitable powers conferred by the Judiciary Act of 1789 did not include the power to create remedies previously unknown to equity jurisprudence. Even when sitting as a court in equity, we have no authority to craft a 'nuclear weapon' of the law like the one advocated here. Joseph Story made the point many years ago:
'If, indeed, a Court of Equity in England did possess the unbounded jurisdiction which has been thus generally ascribed to it of correcting, controlling, moderating, and even superseding the law, and of enforcing all the rights, as well as the charities, arising from natural law and justice, and of freeing itself from all regard to former rules and precedents, it would be the most gigantic in its sway, and the most formidable instrument of arbitrary power that could well be devised. It would literally place the whole rights and property of the community under the arbitrary will of the Judge, acting, if you please, arbitrio boni judicis, and it may be, ex aequo et bono, according to his own notions and conscience, but still acting with a despotic and sovereign authority. A Court of Chancery might then well deserve the spirited rebuke of Seldon; 'For law we have a measure, and know what to trust to ¾ Equity is according to the conscience of him that is Chancellor; and as that is larger, or narrower, so is Equity. "T is all one, as if they should make the standard for the measure the Chancellor's foot. What an uncertain measure would this be? One Chancellor has a long foot; another a short foot; a third an indifferent foot. It is the same thing with the Chancellor's conscience".' Commentaries on Equity Jurisprudence Sec 19 at 21."

In Siskina (Cargo Owners) v Distos SA (supra), Lord Denning MR dealt with the argument that injunctive relief was dependent upon the protection of a legal right by reason of practical difficulties in ascertaining the existence or otherwise of such rights. He stated, at 233:
"Mr Lloyd submitted that an action for an injunction could never stand on its own. It could only be sought to protect a legal right. He relied particularly on North London Railway Co v Great Northern Railway Co (1883) 11 QBD 30 and Thorn v British Broadcasting Corporation [1967] 1 WLR 1104.
But, as I said in Gouriet v Union of Post Office Workers [1977] QB 729, 762, that rule is too narrowly stated: see Spry, Equitable Remedies, pp 309-310, to which I would add now pp 407-413. It is clear that if legal rights were in issue, the Chancery Court would send the parties off to the courts of law to decide those legal rights: but meanwhile it would grant an injunction to restrain anything being done to the prejudice of one party or the other. There are dozens of cases in which the Court of Chancery granted injunctions so as to protect the status quo, or to preserve property, until the rights of the parties were determined by some other court in England or in a foreign court, or in some other way: and it would give directions as to the way in which those rights should be determined: putting the plaintiff on terms to proceed speedily, and so forth. In this regard reference maybe made to such cases as Bacon v Jones (1839) 4 Myl & Cr 433; Cory v Yarmouth and Norwich Railway Co (1844) 3 Hare 593 and Ridgway v Roberts (1844) 4 Hare 106; to the Dreyfus case itself where the rights were to be determined by the French courts."

That approach was rejected by the House of Lords on appeal and, although the Court was concerned with the extra-territorial nature of injunctive relief and the application of a particular Rule of Court, Lord Diplock stated, Siskina (supra) the general principles in the following terms at 256:

"A right to obtain an interlocutory injunction is not a cause of action. It cannot stand on its own. It is dependent upon there being a pre-existing cause of action against the defendant arising out of an invasion, actual or threatened by him, of a legal or equitable right of the plaintiff for the enforcement of which the defendant is amenable to the jurisdiction of the court. The right to obtain an interlocutory injunction is merely ancillary and incidental to the pre-existing cause of action. It is granted to preserve the status quo pending the ascertainment by the court of the rights of the parties and the grant to the plaintiff of the relief to which his cause of action entitles him, which may or may not include a final injunction."

Although the reasoning and conclusion of Lord Diplock has been the subject of academic criticism (Modern Trends in Commercial Law, (1978) 41 Mod Law Review 11, Kerr, The Legacy of the Siskina (1992) 108 Law Quarterly Review 175, Collins, The End of Siskina (1993) 109 Law Quarterly Review 342, Collins), those statements of principle were re-affirmed by Lord Brandon in South Carolina Insurance Co v Assurantie Maatschappij "De Zeven Provincien" NV [1987] 1 AC 24 at 40 and were not the subject of criticism by either Brennan or Toohey JJ in their separate judgments in Jackson v Sterling Industries Ltd (1987) CLR 612 at 621 - 622. An amendment to the Supreme Court Act 1981 (UK), s31, enabled Lord Denning to state of Siskina, "… I am glad to say that the reasoning of those cases has now been circumvented by statute" (Chief Constable of Kent v V [1983] 3 All ER 36 at 40). The logic of the position adopted by Lord Diplock is that a party ought not be permitted to obtain by way of interlocutory relief, that which he or she would be unable to obtain on the final determination of the matter.

However, there remained the questions of whether relief was dependent upon cause of action or right, or whether power could be afforded on the basis of incidence. In Mercedes Benz v Leiduck (supra), the Privy Council distinguished between an accrued cause of action and a future right or interest. Lord Mustill, in delivering the majority judgment, did not fully accept the proposal as stated by Lord Diplock, stating at 308:

"Lord Diplock's categorisation of the circumstances in which alone an interlocutory injunction may be granted by the English court has been queried by, among others, Lord Keith of Kinkel, Lord Scarman, Lord Mackay of Clashfern, Lord Goff of Chieveley and Lord Browne-Wilkinson in Castanho v Brown & Root (UK) Ltd [1981] AC 557, 573, South Carolina Insurance Co v Assurantie Maatschappij 'De Zeven Provincien' NV [1987] 1 AC 24, 44 and Channel Tunnel Group Ltd v Balfour Beatty Construction Ltd [1993] AC 334, 340-341, 343. These are highly persuasive voices that the jurisdiction to grant an injunction, unfettered by statute, should not be rigidly confined to exclusive categories by judicial decision. The court may grant an injunction against a party properly before it where this is required to avoid injustice, just as the statute provides and just as the Court of Chancery did before 1875. The court habitually grants injunctions in respect of certain types of conduct. But that does not mean that the situations in which injunctions may be granted are now set in stone for all time. The grant of Mareva injunctions itself gives the lie to this. As circumstances in the world change, so must the situations in which the courts may properly exercise their jurisdiction to grant injunctions. The exercise of the jurisdiction must be principled, but the criterion is injustice. Injustice is to be viewed and decided in the light of today's conditions and standards, not those of yester-year.
…
In The Siskina [1979] AC 210, 256, Lord Diplock observed that the right to obtain an interlocutory injunction is dependent upon there being a pre-existing cause of action. This is inconsistent with the analysis of the Mareva injunction as ancillary to a prospective right of enforcement. On this I must diffidently part company from this highly distinguished expositor of the common law. In the first place, there is in principle no inherent difficulty in an injunction, interim or final, being granted at a time when the defendant has currently done no wrong. One of the most useful features of injunctions is that they can be anticipatory. The common law courts gave remedies for wrongs which had been committed. So did the Court of Chancery. But the Chancery Court also granted injunctions to prevent anticipated wrongs from being committed. Quia timet injunctions are the classic instance of this."

Lord Muskill repeated his view in Channel Tunnel Group Ltd v Balfour Beatty Construction Ltd (supra) when, in the leading judgment, he stated at 362:
"My Lords, I cannot accept this argument. I prefer not to engage the question whether the law is now firmly established in terms of Lord Brandon's statement, or whether it will call for further elaboration to deal with new practical situations at present unforeseen. For present purposes it is sufficient to say that the doctrine of the Siskina, put at its highest, is that the right to an interlocutory injunction cannot exist in isolation, but is always incidental to, and dependent on the enforcement of a substantive right, which usually although not invariably takes the shape of a cause of action. If the underlying right itself is not subject to the jurisdiction of the English court, then that court should never exercise its power under section 37(1) by way of interim relief. If this is a correct appreciation of the doctrine, it does not apply to the present case."

In His Lordship's view, the existence of a right of action or an enforceable claim in another jurisdiction was sufficient to give rise to power of an English court to give interlocutory equitable relief. The power remains incidental to and dependent upon the enforcement of a substantive right, albeit that such enforcement could only be made elsewhere.

The English position remains that power to afford interlocutory relief is dependent on the existence of, and capacity to afford substantive remedy in some manner (eg in a foreign jurisdiction, by way of arbitration proceedings, contemplated proceedings and the like). Power to afford equitable remedy remains dependent upon preservation of and to a right existing otherwise than in the remedy itself. The conceptual difficulties occasioned by the development of the generic term "injunction" was recognised by Gaudron, McHugh, Gummow and Callinan JJ in Cardile & Ors v LED Builders Pty Limited (supra) when they identified the argument in their joint judgment at 11, stating:

"One was that the English authorities appear to have developed to a stage where what is identified as the Mareva injunction or order lacks any firm doctrinal foundation and is best regarded as some special exception to the general law. Another was that, whilst it is undesirable that asset preservation orders of the Mareva variety be left as a sui generis remedy with no doctrinal roots, the term 'injunction' is an inappropriate identification of that area of legal discourse within which the Mareva order is to be placed."

In that case, the High Court accepted that there existed equitable power to enjoin a third party as part of "the armoury of a court of law and equity to prevent the abuse or frustration of its process in relation to matters coming within its jurisdiction." In doing so, their Honours adopted, with some refinement, the statement of Brennan J in Jackson v Sterling Industries Ltd (supra) at 621:
"'A judicial power to make an interlocutory order in the nature of a Mareva injunction may be exercised according to the exigencies of the case and, the schemes which a debtor may devise for divesting himself of assets being legion, novelty of form is no objection to the validity of such an order.'
The general principle which informs the exercise of the power to grant interlocutory relief is that the court may make such orders, at least against the parties to the proceeding against whom final relief might be granted, as are needed to ensure the effective exercise of the jurisdiction invoked. See Tait v The Queen (1962) 108 CLR 620). The Federal Court had jurisdiction to make interlocutory orders to prevent frustration of its process in the present proceeding."

In his separate judgment, Kirby J counselled that Australian courts should pay regard to developments elsewhere and against the fashioning of immutable principles (see similarity of approach in Greenpeace Canada & Anor v MacMillan Bloedal Limited & Ors [1996] 2 SCR 1048 and Maritime Union of Australia & Ors v Patrick Stevedores Operations Pty Ltd & Anor [1998] 4 VR 143). However, Kirby J observed at 47 - 48:
"The English legislation out of which Mareva injunctions were originally fashioned, reversing earlier authority, was not as broad as that conferred on the Federal Court in Australia. In addition to the express power in s 23 (and I would add s 5(2)) the Federal Court is cloaked with implied powers simply because it is a court of the kind stated. Many of the problems which are said to have arisen in the development of curial orders for the preservation of property in connection with litigation might have been avoided if courts in Australia had taken the ordinary and, in my view proper, course. This would have involved beginning their consideration with the actual sources of their power rather than endeavouring (as they generally have) to follow, a few years later, the developing jurisprudence of the English courts as they were producing their Mareva progeny."

Acceptance that Australian law has developed differently from that in the United Kingdom and is less constrained by history, does not mean that the principles of equity as applied within this jurisdiction are unconstrained by their origin. In The Commonwealth of Australia v John Fairfax & Sons Limited (1980) 147 CLR 39, Mason J was asked to grant an interim injunction on the basis that the intended publication of material constituted a breach of the Crimes Act 1914 (Cth), s79 and that an intended breach of a criminal provision provided power. His Honour declined to do so, stating at 50:

"There is nothing to indicate that it was intended in any way to supplement the rights of the Commonwealth to relief by way of injunction to restrain disclosure of confidential information or infringement of copyright."

Mason J stated the appropriate test at 49 as:
"I have only to decide whether the plaintiff has made out a sufficient case for interim relief. In Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 , this Court decided that what the plaintiff has to show in order to obtain an interlocutory injunction is that there is a probability that he will succeed at the trial, if the evidence remains the same. According to the House of Lords, the plaintiff need only show that there is 'a serious question' to be tried (American Cyanamid Co v Ethicon Ltd (1975) AC 396 ). But in Beecham (1968) 118 CLR, at p 622 it was acknowledged that how strong the probability needs to be 'depends … upon the nature of the rights' asserted and 'the practical consequences likely to flow from the order' sought. Much depends on the state of the evidence which is presented on the interlocutory application."

There remains a requirement of nexus between the remedy and the claim of harm. As the Australian courts have developed inchoate forms of action such as unconscionable conduct, the attendant remedies are extended. But the remedy is defined and constrained by the claim. Where no claim is recognised, there can exist no remedy. In areas such as privacy, economic harm, confidentiality and intellectual property, there is a blurring of what rights are legally enforceable and which are simply states of detriment, harm, interests or unfairness. There is a temptation to provide remedy where those areas are not clearly defined. In Lincoln Hunt Australia Pty Ltd v Willessee (1986) 4 NSWLR 457, Young J held that the court had power to enjoin a television producer from publishing a videotape filmed on premises to which entry had been gained by trespass. However, the trespass had been committed by persons acting at the direction of the defendant. His Honour granted an injunction, stating at 483 that the court had "power to grant an injunction of a videotape or photograph taken by a trespasser even though no confidentiality is involved. However, the court will only intervene if the circumstances are such to make publication unconscionable". It would appear that his Honour regarded unconscionability as being a matter relevant to discretion. A preferable view might well be that power is afforded where the action is based on unconscionable conduct and discretion exercised by reference to general questions of harm, status, conduct of the parties, and the like.

A similar conclusion was reached in Emcorp Pty Ltd v Australian Broadcasting Corporation [1988] 2 Qd R 169, which involved the filming of material during the course of trespass by the defendant. The plaintiffs relied on the torts of trespass and injurious falsehood in order to provide a basis for the grant of relief. Williams J concluded at 178:

"In all the circumstances I have come to the conclusion that because the audio-visual material in question was obtained in breach of the legal rights of the plaintiffs it is appropriate for the court to conclude that considerations of freedom of speech which might otherwise operate in favour of the defendants are overcome. By abusing its right of freedom of speech in the way in which the material was obtained, the defendants are deprived of the right to rely on that as a material consideration. Taking into account what I have said with respect to the balance of convenience and the adequacy of damages I am of the view that an injunction should be granted restraining the defendants from publishing any of the audio-visual material obtained in the office premises of the plaintiffs."

In Shiel v Transmedia Productions Pty Ltd [1987] 1 Qd R 199, the appellate court did not find error in the refusal of the primary judge to grant an injunction preventing the publication of potentially defamatory material obtained by subterfuge. In doing so, it followed the line of authority commencing with Bonnard v Perryman (supra), and although it held that power existed, it was subject to the proper exercise of discretion. It did so because the pleadings raised a serious question, namely whether there had been defamation. In his reasons for judgment at 200 - 201, Kelly J stated that he wished "to leave open the question of the approach which the Court should adopt to the granting of an interlocutory injunction".

The question of whether unconscionable conduct can, in its own right, afford power, was considered by the House of Lords in South Carolina Insurance Co v Assurantie Maatschappij "De Zeven Provincien" NV (supra). Lord Brandon, who delivered the leading judgment, summarised the position in the following terms at 40:

"… the power of the High Court to grant injunctions is, subject to two exceptions to which I shall refer shortly, limited to two situations. Situation (1) is when one party to an action can show that the other party has either invaded, or threatens to invade, a legal or equitable right of the former for the enforcement of which the latter is amenable to the jurisdiction of the court. Situation (2) is where one party to an action has behaved, or threatens to behave, in a manner which is unconscionable. The third basic principle is that, among the forms of injunction which the High Court has power to grant, is an injunction granted to one party to an action to restrain the other party to it from beginning, or if he has begun from continuing, proceedings against the former in a foreign court. Such jurisdiction is, however, to be exercised with caution because it involves indirect interference with the process of the foreign court concerned."

The exceptions referred to are irrelevant to the issue under consideration. Reference to "unconscionable conduct" should be seen in the context of an action maintainable by the claimant party.

None of the authorities examined support the contention that power exists in the absence of an identified cause of action. Reference to "serious issue" is akin to "arguable case" in that it is not for a Court considering the grant of interlocutory relief to conclude that a cause of action has been made out, but whether the pleadings disclose a serious issue which will be the subject of a judicial determination.

A convenient, but not comprehensive list of purposes for which an injunction may be granted, is set out by Bean in Injunctions 7 Ed 9 - 13. Whilst the areas of purpose will never be closed (because of legislation or development of the common law) an applicant for an interlocutory injunction must still identify in pleadings the ultimate purpose. In this case, the appellant disavowed reliance on statutory defamation and could not establish that the respondent had committed the tort of trespass. It claimed future economic harm, but the law still requires the establishment of a tort or breach of equitable duty before a remedy can be granted (Frank Perre & Ors v Apand Pty Ltd [1999] HCA 36). No issue of injurious falsehood or breach of confidentiality is raised against the respondent and no right of action is recognised for breach of privacy (see Under Surveillance, Kooman, University of Queensland Law Journal Vol 17, No 2 (1993) at 234). The conduct of the respondent in receiving the material, knowing it to have been unlawfully obtained, could be said in a general sense to be unconscionable, but the conduct could not be said to give rise to an action in the sense now recognised.

Conclusion

1 The appellant has not established that it had a serious issue to be tried in that it could not show, by its pleadings that upon trial, a court could find a breach of the law by the respondent.

2 Absent such nexus, the court had no power to grant interlocutory relief on the basis of potential injury or harm which might be suffered by the appellant upon publication.

Cause of Action

The appellant contends error in that it was possible for the learned primary judge to discern a cause of action from the pleadings. In its submissions to this Court, it identifies possible causes of action by reference to the pleadings and says that even if, at trial, they are not made out, they remain at the interlocutory stage, serious questions which afford power. The argument might be attractive, but remains sophistic. A party might eventually be found not to possess a cause of action either because certain facts were not established or the application of legal principle to established facts did not give rise to remedy. But that party is entitled to certain forms of interlocutory relief until the final determination. But the pleadings placed before the Court hearing the interlocutory matters must, nevertheless, identify a matter which, if established by facts is susceptible, by the application of legal principle to remedy. A party who is unable to identify to the Court a matter which, on determination, constitutes a cause of action, should not be permitted to complain after refusal, that there was, in some way, a cause of action somewhere.

Counsel for the appellant sought the grant of interim relief on the basis of power "to grant an injunction to prevent publication of a video tape or a photograph that is taken by a trespasser" (Appeal Book 25) in circumstances where "it has been unlawfully obtained" and that "[the] Court ought to interfere to prevent the harm that will be done to the plaintiff by showing the film that was unlawfully obtained …" (Appeal Book 27). Counsel referred to unconscionability in general terms, but did not advance it as a discrete form of action. On the hearing of the appeal, counsel for the appellant identified a number of areas which are said to afford power for the grant of injunctive relief and which are open on the pleadings. When the law recognises a wide range of actions where there has been interference with an interest or activity carried out by a party, some are the product of statute and some exist in a vacuum. It is appropriate to examine the pleadings in order to see whether they are capable of raising a serious issue which on trial could lead to a permanent remedy.

(1)Breach of Privacy. There is no right of privacy within this jurisdiction (Tom Cruise and Nicole Kidman v Southdown Press Pty Ltd (1993) 26 IPR 125; Victoria Park Racing and Recreation Grounds Co v Taylor (supra)) except where it is incidental to the other rights recognised by the common law. Current legislation (Privacy Act 1988 (Cth), Invasion of Privacy Act 1971 (Qld), Privacy Committee Act 1975 (NSW)) does not create a legally enforceable remedy, unlike the statutory tort of privacy created in other jurisdictions (Privacy Act 1968 (British Columbia), Privacy Act 1970 (Manitoba)).
(2)Breach of Copyright or Intellectual Property. Publication of material which is in breach of copyright has long been protected (The Commonwealth of Australia v John Fairfax& Sons Limited (supra)). No such issue is raised by the pleadings.
(3)Breach of Confidentiality. A person or entity is entitled to preserve and protect information, especially of a commercial nature which is necessary for its operation or publication of which might advantage a competitor (Attorney-General v Newspaper Publishing [1988] 1 Ch 333, Fraser v Evans [1969] 1 QB 349, Hubbard v Vosper [1972] 2 QB 84, Francombe v Mirror Group Newspaper Ltd [1984] 2 All ER 408, British Steel Corporation v Granada Television Ltd [1981] AC 1096, European Banking Corporation v Fourth Estate Publications Ltd [1993] 1 NZLR 559). The evidence in this case was that any publication was of the form of the operation itself and not a matter of finance, sales lists, marketing strategies or technical operations susceptible to copying.
(4)Misfeasance by Public Officer. (Donnelly v Amalgamated Television (1998) 45 NSWLR 570). No such issue is raised.
(5)Confidentiality of Government. (The Commonwealth of Australia v John Fairfax& Sons Limited (supra)). It is not necessary to consider the extent of this area of power.
(6)Infliction of Economic Harm. In some cases, relief has been granted where there has been an intentional infliction of economic harm. No equivalent pleadings have been made. The appellant pleads, correctly one suspects, that publication of the process could cause harm. But there is no claim of negligence or breach of duty. The tort remains confined to one dependent upon the existence of proximity and duty.
(7)Unconscionable Conduct. This cause has been dealt with elsewhere in this judgment. Even if the publication was unconscionable in the wider sense, there remain preconditions and the existence of particular relationships before such conduct entitles remedy.
(8)Injury to Reputation. This action can be brought as one for malicious falsehood (Kaye v Robertson (1991) FSR 62, Bradley v Wingnut Films [1993] 1 NZLR 415) or for defamation. The learned primary judge accepted for the purpose of an exercise of discretion that the appellant had made out an action in defamation and ruled accordingly.

The appellant has not shown error and, in my opinion, grounds 1 and 3 of the notice of appeal have not been made out.

Injunction against third party

Injunctive relief can be extended to third parties in the areas of both public and private law (Buckley v Tutty (1971) 125 CLR 353, Greenpeace Canada v MacMillan Bloedel Limited and Maritime Union of Australia & Ors v Patrick Stevedores Operations Pty Ltd & Anor (supra)) although the remedy does not extend to the world at large. In the United Kingdom, the House of Lords has determined that a person, who becomes involved, albeit innocently and without incurring any personal liability in the tortious act of another, being under a duty to assist, can be required to make discovery of material relevant to the primary proceedings (Norwich Pharmacal Co v Customs and Excise Commissioners (supra)). Lord Reid stated at 175:

"… that if through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrong-doing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers. I do not think that it matters whether he became so mixed up by voluntary action on his part or because it was his duty to do what he did. It may be that if this causes him expense the person seeking the information ought to reimburse him. But justice requires that he should co-operate in righting the wrong if he unwittingly facilitated its perpetration."

The duty arises from the relationship between the tortfeasor and the entity holding information which creates an equitable duty to aid the party harmed by the tort. The nexus affords power.

In Cardile (supra), Kirby J drew a distinction between an innocent and non-innocent third party, stating, at 51 - 52:

"Different considerations apply where the non-party is not innocent, is either the controller or under the control of the judgment debtor, or where it has 'mixed up' its assets and property with those of the judgment debtor. In such cases, where the non-party has actively participated in a deliberate removal of assets or property and is still in possession of the same, it is much more likely that a court, asked to make an asset preservation order, will do so. Certainly, it is more likely than if the non-party were a complete stranger to the asset stripping and wholly 'innocent' of involvement in it."

In the circumstances of this case, the "asset" was the videotape provided to the respondent by the co-defendant. The learned primary judge had not been asked to determine whether or not there was a cause of action against the co-defendant and was entitled to assume that there remained a "serious case to be tried" as between the appellant and the co-defendant. There was a nexus between the respondent's possession of the videotape and the commission of a tort. The property was central to the claim by the appellant against the co-defendant and the appellant was entitled to the return of that tape. To that extent, it was entitled to the return of the original and any copies made of the videotape, as sought in its statement of claim, claims (b) and (d). However, the application brought before the learned primary judge sought orders restraining the respondent from publishing or distributing the videotaped material. The question then becomes whether the court has power to enjoin the use of the fruits of a tainted tree. That question was averted to by Young J in Lincoln Hunt (supra) when he said at 462:

"Further, it has wide powers to restrain material obtained in breach of confidence. It has wide powers to stop damage to children who are wards of courts and indeed, if one considers the matter, the court has power to restrain almost all sorts of unconscionable conduct, except in this very narrow class of case, according to the defendants' submission that someone has obtained the fruits of his tort without holding money or property of the plaintiff and without a breach of confidentiality. In that case it is said the court is powerless."

His Honour seemed to conclude that a court could enjoin a third party, although his ultimate conclusion at 463 that:
"Thus, I am of the view that the Court has power to grant an injunction in the appropriate case to prevent publication of a videotape or photograph taken by a trespasser even though no confidentiality is involved. However, the Court will only intervene if the circumstances are such to make publication unconscionable."

does not make it clear that the remedy would only be if the trespasser and publisher were one and the same entity. His Honour relied upon an American authority of Ann-Margaret v High Society Magazine Inc 498 F Supp 401 (1980) and stated at 463:
"I am quite sure that the Ann-Margaret case would be decided the same way in New South Wales as it was in the USA, but although we have adopted American business habits to a great degree I am also sure that the average member of the community of this State still very greatly values his living in a society where if a person wants to go onto his property it is only with his invitation and I would think that this court would have no difficulty in the appropriate case in granting an injunction to prevent a person publishing a copy of a photograph, the original of which was stolen from the plaintiff's office and then returned to the plaintiff, notwithstanding that a contrary result was reached in the USA in Pearson v Dodd 410 F 2d 701 (1969)."

However, as Hudson pointed out in referring to the Ann-Margaret reference in an article Consumer Protection Trespass - Injunctions (1980) 104 LQR at 20:

"… the photographs were part of a film publicly available, were not obtained tortiously and the American Court did not restrain publication".

In Bradley v Wingnut Films (supra), Gallen J at 429, found it unnecessary to determine whether material obtained by trespass could be the subject of injunctive relief since the portion of the material objected to had been filmed without trespass. Application of the principles that there must be a capacity for ultimate remedy against the party to be enjoined or that the power is afforded by reason of the asset itself would suggest that absent legislative provision, there is no power to enjoin the fruits of a trespass.

Administration of justice

There is a further basis on which a court might have power to grant interlocutory relief in circumstances such as are raised by this appeal. The appellant has sued the original recipient of the videotaped material and had not abandoned its action against the co-defendant. There might be a basis for determining that the publication of the material by the respondent might prejudice the action against the co-defendant or render such action futile. In cases where prior publication would destroy the subject matter, power to enjoin can be exercised since the destruction of that material would prejudice the administration of justice (Jackson v Sterling Industries Ltd (supra), CSR Ltd v Cigna Insurance Australia Limited (1997) 189 CLR 345, Cardile v LED Builders Pty Limited (supra) Patrick Stevedores Operations No 2 Pty Ltd v Maritime Unionof Australia [No 3] (1998) 72 ALJR 873, Attorney-General v Newspaper Publishing (supra)). However, in the circumstances of this appeal, it is not appropriate to consider the principles relevant to this form of power.

Exercise of discretion

Even if this Court was satisfied that the learned primary judge was in error, on the basis put to him that either no cause of action was disclosed in the pleadings or that the existence of a cause of action was a necessary precondition to the exercise of power, the appeal ought nevertheless be dismissed. The case was put to him on the basis that the cause of action was pleaded, but the learned primary judge accepted that for the purpose of the application there existed an action in defamation and exercised discretion accordingly. He did so in accordance with long standing principles associated with the law of libel, slander and defamation (Bonnard v Perryman (supra), Hubbard v Pitt [1976] QB 142, cited with approval by Lord Hutton in DPP v Jones [1999] 2 All ER 257 at 292 - 293). Courts ought be reluctant to enjoin the publication of material which is of public interest. Accepting that there are breaches of propriety and ethics by media organisations, there remains a necessity for investigation and public disclosure of matters of government, commerce and the powerful. Questions of alternate remedy, irreparable harm and the nature of the publication, status (public or private) remain significant factors in any exercise of discretion. Prior restraint of publication should be regarded as being appropriate in only the most exceptional cases. Courts ought be reluctant to permit the use of interlocutory relief as a guise for the permanent prohibition of material, the publication of which is in the public interest.
File No 35/1999

LENAH GAME MEATS PTY LIMITED v
AUSTRALIAN BROADCASTING CORPORATION

REASONS FOR JUDGMENT FULL COURT
EVANS J

2 November 1999

The appellant runs a game meat processing facility at 315 Georgetown Road, Rocherlea ("the facility"). The appellant's business involves killing brush tail possums and processing and exporting their meat.

The respondent, the Australian Broadcasting Corporation ("the ABC"), advised the appellant that it proposed publishing a report including portions of a video tape it had obtained which showed the processing of possums at the facility, in particular, stunning them with a captive bolt pistol, followed by cutting their throat. The scenes depicted on the tape were accompanied by sound.

The appellant had never consented to its processing operations being filmed. It appeared from the appellant's investigations that its operations had been filmed by cameras placed by trespassers on the facility at strategic points where holes had been cut into the roof of the facility.

The ABC advised the appellant that the video tape had been sent to it under cover of a letter from Animal Liberation Limited.

The appellant has issued a writ and statement of claim against the ABC and Animal Liberation Limited. In summary, the appellant's claim against the ABC is that:

·   the tape was obtained by persons who are not known to the appellant who had trespassed on its facility.
·   the ABC proposes publishing a report including excerpts from the tape.
·   unless restrained, the ABC will publish the tape.
·   the publication of the tape will cause the appellant damage.

In its statement of claim the appellant seeks an injunction restraining the ABC from publishing the tape or any excerpts from the tape and an order that the tape be delivered to it. The appellant also seeks damages.

By an interlocutory application issued contemporaneously with its writ and statement of claim, the appellant sought an interim injunction restraining the ABC from publishing the tapes. At the initial hearing of the interlocutory application, the ABC gave an undertaking to the Court that it would not broadcast or distribute any video or videos showing the appellant's brush tail possum processing facility at 315 Georgetown Road, Rocherlea in Tasmania, pending the further hearing of the appellant's application.

On the further hearing of the application on 3 May 1999, the ABC declined to renew its undertaking and successfully opposed the making of an interim injunction restraining it from publishing the tape. The ABC has since shown a segment of the tape. The appellant has appealed against the rejection of its application for an interim injunction.

In his ex tempore reasons for dismissing the application for an interim injunction, the learned primary judge, in substance, said:

·   he was satisfied that the tape was taken covertly by trespassers without the permission of the appellant;
·   there was no evidence to suggest that servants or agents of the ABC were the trespassers;
·   the tape was passed by Animal Liberation Limited to the ABC for the purposes of broadcasting;
·   that in the authorities to which he had been referred by the appellant's counsel, when injunctive relief had been given, there was a legitimate cause of action disclosed on the pleadings; and
·   the difficulty with the appellant's statement of claim was that it disclosed, on its face, no cause of action against the ABC, and on this basis, he was of the view that the appellant was not entitled to interlocutory relief.

The authorities to which his Honour had been referred by the appellant's counsel were: Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457; Emcorp Pty Ltd v Australian Broadcasting Corporation [1988] 2 Qd R 169; Rinsale Pty Ltd v Australian Broadcasting Corporation [1993] Aust Torts Reports 81-231. Each of these cases involved a claim for an injunction to prevent the publication of a video tape taken by the servants or agents of the defendant whilst trespassing on the plaintiff's property. These decisions are authority that the Court has jurisdiction to grant an injunction restraining a defendant trespasser from publishing a video tape taken in the course of the trespass. In each case, the plaintiff had a cause of action against the defendant for trespass.

The appellant does not have a cause of action in trespass against the ABC. The ABC has been sued because it proposes publishing the fruits of the trespass, the video tape.

The Court's jurisdiction to grant injunctive relief in equity is derived from both its auxiliary jurisdiction and its exclusive jurisdiction. Its auxiliary jurisdiction cannot stand alone and is dependent on there being a pre-existing cause of action against the defendant. The right to obtain an injunction is ancillary to and incidental to that pre-existing cause of action, Siskina(Cargo Owners) v Distos S A [1979] AC 210 at 256. The Court also has exclusive jurisdiction in equity to grant injunctive relief in a variety of circumstances, Meagher, Gummow and Lehane, Equity Doctrines and Remedies, 3^rd ed Butterworths, Sydney, 1992 at 532 - 535. Some of the circumstances in which the Court's exclusive jurisdiction in equity is invoked are not commonly referred to as amounting to a cause of action. However, if the term, "cause of action" is defined as all the facts a plaintiff must prove in order to establish a right to relief; see Read v Brown [1889] 22 QBD 128, the facts which justify a grant of relief in the Court's exercise of its exclusive jurisdiction in equity are encompassed by that term.

In South Carolina Co v Assurantie N V [1987] AC 24 at 40, Lord Brandon said the following in relation to the Supreme Court Act 1981, s37(1), which, like the Supreme Court Civil Procedure Act (Tas), s11(12), deals with the court's power to give injunctions in all cases in which it appears to the court to be just and convenient:

"… although the terms of section 37(1) of the Act of 1981 and its predecessors are very wide, the power conferred by them has been circumscribed by judicial authority dating back many years. The nature of the limitations to which the power is subject has been considered in a number of recent cases in your Lordships' House: Siskina (Owners of cargo lately laden on board) v Distos Compania Naviera S A [1979] AC 210; Castanho v Brown & Root(UK) Ltd [1981] AC 557; and British Airways Board v Laker Airways Ltd [1985] AC 58. The effect of these authorities, so far as material to the present case, can be summarised by saying that the power of the High Court to grant injunctions is, subject to two exceptions to which I shall refer shortly, limited to two situations. Situation (1) is when one party to an action can show that the other party has either invaded, or threatens to invade, a legal or equitable right of the former for the enforcement of which the latter is amenable to the jurisdiction of the court. Situation (2) is where one party to an action has behaved, or threatens to behave, in a manner which is unconscionable."

The Court's power to grant an injunction to restrain unconscionable behaviour is an aspect of the exclusive equitable jurisdiction which it exercises in relation to confidential information. A court of equity will restrain the publication of confidential information improperly or surreptitiously obtained. Lord Ashburton v Pape [1913] 2 Ch 469 at 475; The Commonwealth of Australia v John Fairfax & Sons Limited and Others (1980) 147 CLR 39 at 50 and Smith Kline & French v SEC Department Health (1995) ALR 87 at 101. As to this equitable jurisdiction, in Moorgate Tobacco Co Limited v Philip Morris Limited and Another [No 2] (1984) 156 CLR 414, Deane J, whose reasons were agreed with by the other members of the court, said at 437 - 438:
"It is unnecessary, for the purposes of the present appeal, to attempt to define the precise scope of the equitable jurisdiction to grant relief against an actual or threatened abuse of confidential information not involving any tort or any breach of some express or implied contractual provision, some wider fiduciary duty or some copyright or trade mark right. A general equitable jurisdiction to grant such relief has long been asserted and should, in my view, now be accepted: (see The Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39, at pp 50-52). Like most heads of exclusive equitable jurisdiction, its rational basis does not lie in proprietary right. It lies in the notion of an obligation of conscience arising from the circumstances in or through which the information was communicated or obtained."
Just as unconscionability is central to the Court's jurisdiction in relation to confidential information, so it is in relation to information which is the product of a trespass. Each of the decisions referred to in par10 recognise that unconscionability is the foundation of the Court's equitable jurisdiction to issue an injunction to restrain the publication of a video tape taken in the course of a trespass.

In Lincoln Hunt Australia Pty Ltd v Willesee, in the course of rejecting the defendant's submission that the court had no jurisdiction to grant an injunction to prevent the publication of the tape, Young J said at 462 - 463:
"The court can clearly grant an injunction to restrain further trespasses and if a breach of contract has occurred it can, in appropriate cases, trace the money paid and in the case of unconscionable commercial dealings even impose a resulting trust in cases outside the contract. Further, it has wide powers to restrain material obtained in breach of confidence. It has wide powers to stop damage to children who are wards of courts and indeed, if one considers the matter, the court has power to restrain almost all sorts of unconscionable conduct …
From early times, however, the jurisdiction of this Court has not been compartmentalised, but has been a general one based on the need to restrain unconscionable conduct. This jurisdiction has been exercised in many different forms over the centuries.
…
This Court still continues both in private and commercial disputes to function as a court of conscience. What is unconscionable will depend to a great degree on the court's view as to what is acceptable to the community as decent and fair at the time and in the place where the decision is made. Just as views will differ as to the degree of unfairness in tricking an elderly person out of his property that will be unconscionable, so too opinions may differ as to where the line of unconscionability is to be drawn, but that does not remove from this Court its responsibility to make a decision as to whether conduct is unconscionable in new commercial situations.
…
I am also sure that the average member of the community of this State still very greatly values his living in a society where if a person wants to go onto his property it is only with his invitation and I would think that this Court would have no difficulty in the appropriate case in granting an injunction to prevent a person publishing a copy of a photograph, the original of which was stolen from the plaintiff's office and then returned to the plaintiff …
Thus I am of the view that the Court has power to grant an injunction in the appropriate case to prevent publication of a videotape or photograph taken by a trespasser even though no confidentiality is involved. However, the Court will only intervene if the circumstances are such to make publication unconscionable."

In Emcorp Pty Ltd v Australian Broadcasting Corporation, Williams J, at 172, citing Lincoln Hunt, said if the court has jurisdiction to grant the injunction, it must be because the circumstances are such as to make publication unconscionable. Shepherdson J said much the same in RinsalePty Ltd v Australian Broadcasting Corporation, at 62-380.

Unconscionability is at the core of the Court's equitable jurisdiction in relation to both confidential information and information which is the product of a trespass. This strongly suggests that the equitable jurisdiction that is invoked in relation to each is the same and I cannot discern any reason for concluding otherwise. The jurisdiction invoked is the Court's exclusive jurisdiction in equity and this jurisdiction is not auxiliary to a cause of action. Just as relief can be obtained against a third party innocently in receipt of the confidential information, Butler v Board of Trade [1971] Ch 680 at 690, Malone v Metropolitan Police Commissioner [1979] Ch 344 at 361 and Wheatley v Bell [1982] 2 NSWLR 544, so it should, in appropriate circumstances, be available against a third party innocently in receipt of information which is the product of a trespass.

I am satisfied that the Court's exclusive equitable jurisdiction to grant relief may be invoked when it can be established that it would be unconscionable to allow a person in possession of a video tape which is the product of a trespass, to publish that tape. In my respectful view, the learned primary judge erred in concluding that as the statement of claim did not disclose a cause of action in trespass against the ABC, the plaintiff could not establish an entitlement to the relief sought.

In order to obtain the relief sought, the appellant must satisfy the Court that it is "just and convenient" to grant the requested injunction; Supreme Court Civil Procedure Act, s11(12). This involves a consideration of matters such as whether there is a serious issue to be tried and the balance of convenience, Heavener v Loomes (1924) 34 CLR 306 at 326, and Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia[No 3] (1998) 72 ALJR 873 at 880, 902.

It should be apparent from the reasons I have given that I am satisfied that there is a serious issue to be tried. That being so, subject to the balance of convenience, it is desirable that the status quo be preserved as far as possible until the final hearing of the appellant's claim. The appellant's evidence about the damage that publication of the tape is likely to cause was not challenged at the interlocutory hearing and no evidence was put before the Court to suggest that an injunction would cause the ABC any particular damage. I recognise that an injunction will probably cause the ABC some inconvenience.

In opposing an injunction, counsel for the ABC placed considerable reliance on the well established rule that the power to grant interlocutory injunctions in defamation cases must be used with great caution and only in very clear cases. The Court should not allow a plaintiff to circumvent this rule by devising a cause of action, other than in defamation, with a view to obtaining an injunction which would achieve the same result as an injunction in relation to the defamatory aspects of the relevant communication; Swimsure (Laboratories) Pty Ltd v McDonald and Another [1979] 2 NSWLR 796 at 801, and Church of Scientology of California and Another v Reader's Digest Services Pty Ltd [1980] 1 NSWLR 344 at 350 - 351.

The genesis for the above rule is concern about fettering concepts of free speech and freedom of the media. The rule has little force in circumstances such as the present where injunctive relief to prevent unconscionable conduct is the only substantive claim I can discern to be available to the appellant. The claim for an injunction cannot be categorised as a device to circumvent the rule.

To deny the appellant an interlocutory injunction would substantially render its claim nugatory. Nothing was put before the Court to suggest that an interlocutory injunction would impinge on the ABC's capacity to discuss any matters of public interest or concern in relation to the appellant's operations. All that the injunction will do is to restrain the ABC from again broadcasting the tape until the appellant's claim has been heard and determined. In my view, the balance of convenience favours that course.

I would allow the appeal and grant an injunction in the terms foreshadowed by counsel for the appellant.