Takhar & Anor v Animal Liberation SA Inc (No 2) No. Scgrg-00-754

[2000] SASC 422

TAKHAR & ANOR V ANIMAL LIBERATION S.A. INC

[2000] SASC 422

1................ LANDER J....... This is an application by the plaintiffs in these proceedings to stay an order which I made on 24 November 2000, in which I discharged the interim injunction which had been granted by Judge Kelly on 10 August 2000.

1. After I handed down my decision last Friday, I put in place a stay order so that the plaintiffs might consider their position. They have now advised me that they desire to appeal.

2. No Notice of Appeal has yet been lodged, but I have been told by Dr Baxter that the broad thrust of the appeal will be on two grounds; first, that I failed to have proper regard to the irreparable damage that might be suffered by the plaintiffs if the order was not in place; secondly, I reached a wrong judgment in relation to the balance of convenience between the parties.

3. The plaintiffs therefore seek an order staying the discharge of the interim injunction which was made by Judge Kelly on 10 August 2000 so that they may prosecute the appeal.

4. The plaintiffs have brought proceedings against the defendant in trespass in relation to a trespass which the plaintiffs say occurred on the morning of 10 August 2000, and during which the defendant and members of the defendant took a video tape of the conditions in the plaintiffs’ premises at Gawler.

5. After obtaining that video tape, the defendant made the tape available to each of the television stations operating in South Australia; the three commercial television stations and the ABC. Some days later, they made photographs available to the print media of hens which they had removed at the time they entered the defendant’s premises. It is the case, therefore, that the relevant electronic media has a copy of part of the tape which was taken on that day, and the print media has copies of photographs taken subsequent to the entry into the premises.

6. The plaintiffs claim that they are entitled to a stay upon the basis that if such an order was not made, the subject matter of the appeal would be rendered nugatory.

7. There is no doubt that this Court has jurisdiction to make an order staying its orders pending an appeal, and in circumstances where it is necessary to protect the subject matter of the litigation; Erinford Properties Ltd v Cheshire County Council [1974] Ch 261. Such a jurisdiction may be exercised where, but for such an order, the subject matter of the appeal will be rendered nugatory; Paringa Mining & Exploration Company v North Flinders Mines Ltd & Ors (1988) 165 CLR 452.

8. The defendant objects to the granting of any stay order and points to the following: first, that the electronic media already has a copy of the relevant tape (indeed Channel 10 showed part of the tape on Saturday night on its news broadcast); secondly, the print media has photographs taken subsequent to the entry; thirdly, if such an order was put in place, it would prevent the defendant from making the video available to a number of parties; the RSPCA, which is intending to bring proceedings against the plaintiffs; witnesses in a private prosecution brought by Mr Hahnheuser, a member of the defendant. A stay, if made, the defendant also says, would prevent the defendant from showing the video in the Magistrates Court.

9. The defendant also wishes to make the video available to legislators who are interested in battery hen farming, and law reformers, who are presently considering proposals for a change in the law in relation to battery hen farming.

10. The defendant argues that the plaintiffs’ appeal would not be rendered nugatory by a refusal to make a stay order, because the defendant argues the subject matter of the plaintiffs’ claim for an injunction has already been lost.  It points to the fact that the media already have the tape and Channel 10 showed part of it two days ago.

11. In my opinion, the defendant’s argument is correct. The subject matter of the injunction was lost very shortly after the defendant entered the plaintiffs’ premises. The defendant was able to make the video available to the electronic media and photographs to the print media. It was for that reason that I refused to make the orders for an injunction on the last occasion.

12. The plaintiffs have indicated that they would be prepared to have a stay order which allowed the defendant to show the video to the RSPCA, potential witnesses, and the court.  That, in my opinion, indicates how little there is left in the matter of the plaintiffs’ claim. If the defendant was allowed to make such publication to each of those persons, it indicates how little left there would be, in whatever confidentiality there ever was, in the subject matter of the video.

13. The application for a stay is refused.