Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,Gaudron J,Gummow,Hayne JJ,Kirby J,Callinan J
• Judgment Date: 15 November 2001
• Neutral Citation: 2001-1115 HCA A,[2001] HCA 63
• Court: High Court
• Docket Number: H2/2000
• Date: 15 November 2001

[2001] HCA 63

HIGH COURT OF AUSTRALIA

Gleeson CJ, Gaudron, Gummow, Kirby, Hayne and Callinan JJ

H2/2000

Australian Broadcasting Corporation

Appellant

Lenah Game Meats Pty Ltd

Respondent

Representation:

T K Tobin QC with J C Gibson and R D Glasson for the appellant (instructed by Judith Walker, ABC Ultimo Centre)

S B McElwaine with J F E Bourke for the respondent (instructed by S B McElwaine)

Interveners:

D M J Bennett QC, Solicitor-General of the Commonwealth with A J Abbott and J S Stellios intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)

B M Selway QC, Solicitor-General for the State of South Australia with J C Cox intervening on behalf of the Attorney-General for the State of South Australia (instructed by the Crown Solicitor for South Australia)

Supreme Court Civil Procedure Act 1932 (Tas), ss 10, 11.

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd

Equity — Equitable remedies — Interlocutory injunction — Principles to be applied — Need for plaintiff to show a serious question to be tried — Defence that plaintiff has no equity — Nature of discretion to grant interlocutory relief — Relevance of implied freedom of political communication under the Constitution.

Practice and procedure — Interlocutory injunctions — Power of Supreme Court to grant interlocutory injunction — Whether s 11(12) of Supreme Court Civil Procedure Act 1932 (Tas) alters basis on which the Supreme Court has power to grant an interlocutory injunction — Purpose for which power exists to grant an interlocutory injunction — Meaning of ‘just and convenient’.

Torts — Privacy — Whether Australian law recognises a tort of invasion of privacy — Whether right to privacy attaches to corporations — Relevance of implied freedom of political communication under the Constitution to the tort of privacy.

Constitutional law (Cth) – Interpretation of Constitution — Implications from Constitution — Implied freedom of communication concerning government and political matters — Whether law providing for interlocutory injunction against broadcaster infringes implied freedom — Whether injunction if granted would infringe freedom — Relevance of implied freedom to grant of injunction — Whether properly or at all taken into account.

Trespass to land — Trespasser illegally made clandestine film of activities and gave it to a broadcaster — Whether owner has right to restrain publication of film by broadcaster.

Words and phrases — ‘unconscionability’ – ‘just and convenient’ – ‘interlocutory injunction’.

ORDER

1. Appeal allowed.

2. Set aside Orders 1, 2 and 3 of the Full Court of the Supreme Court of Tasmania made on 2 November 1999 and in place thereof order that the appeal to that Court be dismissed.

3. The appellant to pay the costs of the respondent of the appeal to this Court.

1 Gleeson CJ. This appeal concerns an application for an interlocutory injunction, pending the hearing of an action brought by the respondent against the appellant and another party, to restrain the broadcasting of a film of the respondent's operations at a ‘brush tail possum processing facility’. The film was made surreptitiously and unlawfully, and was given to the appellant with the evident purpose that the appellant would broadcast it. The appellant probably realised, when it received the film, that it had been made in a clandestine manner. It certainly knew that by the time the application for an injunction was heard. The evidence, unchallenged at this stage, is that the broadcasting would cause financial harm to the respondent.

2 The proceedings were commenced, by Statement of Claim, in the Supreme Court of Tasmania. They have not yet come on for a final hearing. There was an interlocutory application for an ‘interim injunction’. The application was heard by Underwood J, who dismissed it on three grounds. First, by reference to the facts alleged in the Statement of Claim, which were supported by the evidence, he held that there was no serious question to be tried. Secondly, even assuming that there had been a cause of action disclosed in the Statement of Claim, he held that it could only have been in defamation, and the principles relating to prior restraint on the publication of defamatory matter dictated that interlocutory relief should not be granted. Thirdly, in any event, damages were an adequate remedy. There was an appeal to the Full Court of the Supreme Court 1. It was made clear that no action for defamation was being pursued. Accordingly, the second ground upon which Underwood J decided the matter was irrelevant. By majority, (Wright and Evans JJ), the appeal was upheld. An interlocutory injunction was granted. Slicer J dissented, primarily on the ground that Underwood J was right to hold that it had not been shown that there was a serious issue to be tried. Following the decision of Underwood J, and before the hearing before the Full Court, the appellant broadcast a segment of the material, but it was not argued that anything turned on that.

3 Although the argument in this Court ranged more widely, the appellant contends that Underwood J and Slicer J were correct in holding that, even if the facts alleged in the Statement of Claim were true, they disclosed no legal or equitable basis on which the respondent was entitled to final injunctive relief and, there being no serious issue to be tried between the parties, this was not a proper case for interlocutory relief.

4 That contention should be addressed first. The procedural context in which it was, and is, raised is familiar, and requires the application of established principles concerning interlocutory relief.

5 The respondent, as plaintiff, brought an action seeking an injunction and damages. The defendants were the appellant and Animal Liberation Limited, which supplied to the appellant the video tape made as a result of the filming of the respondent's operations. (Animal Liberation Limited is not a party to the present appeal.) The final injunctive relief sought against the appellant was a mandatory injunction requiring the appellant to deliver up to the respondent ‘all copies of the video or excerpts from it in its possession, custody or power’. That relief, if granted, would have the practical effect of permanently preventing the appellant from broadcasting the material on the video without the respondent's permission. The respondent also gave notice, in its Statement of Claim, that it claimed ‘[a]n interim injunction restraining [the appellant], its servants or agents, from publishing or causing to be published the video or excerpts from it’. On the same day as the Statement of Claim was filed, there was also filed an interlocutory application claiming an interim injunction in the terms mentioned above. The application was supported by an affidavit of Mr Kelly, a director of the respondent, who gave evidence of the facts alleged in the Statement of Claim, and explained how the distribution and publication of the material on the video was likely to have an adverse effect on the respondent's business.

6 Thus, the respondent sought final injunctive relief which would require the appellant to hand over the video, and all copies of, or excerpts from, it, and would prevent the appellant from broadcasting, or further broadcasting, the material on it. Interim relief was sought, in the form of an interlocutory injunction restraining the appellant from publishing the video or excerpts from it pending the hearing of the application for final relief.

7 Presumably the matter was not dealt with as an urgent application for final relief because the parties, or at least one of them, wished to keep open the possibility of further investigating factual issues that might arise on the pleadings. There does not seem to be much room for dispute about the allegations in the Statement of Claim concerning the making of the video, and how it came into the appellant's possession. However, if and when there is a final hearing, there may be a contest about the allegations concerning damage.

8 When a plaintiff applies to a court for an interlocutory injunction, the first question counsel may be asked is: what is your equity? If a plaintiff, who has commenced an action seeking a permanent injunction, cannot demonstrate that, if the facts alleged are shown to be true, there will be a sufficiently plausible ground for the granting of final relief, then that may mean there is no basis for interlocutory relief. That is what happened here. Underwood J looked at the allegations in the Statement of Claim, supported as they were by the evidence of Mr Kelly, and, after hearing argument, concluded that, even if those allegations were true, they could not justify the final injunctive relief sought by the respondent. On that ground, he refused interlocutory relief. That approach was in accordance with practice and principle. Of course, if Underwood J made an error in concluding that the respondent had no equity, then his decision was flawed. But, having regard to the way the case was conducted by the parties, he asked the right question. The central issue in this appeal is, or ought to be, whether he gave the right answer.

The nature of the jurisdiction

9 Sir Frederick Jordan, in his Chapters on Equity in New South Wales, said 2:

‘The purpose of an interlocutory injunction is to keep matters in statu quo until the rights of the parties can be determined at the hearing of the suit.’

10 That is a sufficient description of the purpose for which the Supreme Court of Tasmania might properly have granted an interlocutory injunction in the present case. It is not a complete description of the circumstances in which an interlocutory injunction may be granted 3. But it covers this case. The respondent claimed a right, which it sought to have...