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Protecting Privacy, Property, and Possums: Australian Broadcasting Corporation V Lenah Game Meats Pty Ltd

Published online by Cambridge University Press:  24 January 2025

Daniel Stewart
Daniel Stewart*
Affiliation:
Faculty of Law, The Australian National University
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Federal Law Review , Volume 30 , Issue 1 , March 2002 , pp. 177 - 201
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Copyright © 2002 The Australian National University

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Footnotes

*

[2001] HCA 63 (15 November 2001) ('Lenah').

I would like to thank Adrienne Stone, Graeme Hill and Michael Coper for helpful suggestions about where to look.

References

1 (1937) 58 CLR 479 ('Victoria Park Racing').

2 (2001) 185 ALR 1.

3 Unreported, Supreme Court of Tasmania, Underwood J, 3 May 1999.

4 Lenah Game Meats Pty Ltd v Australian Broadcasting Corporation[1999] TASSC 114 (Unreported, Wright, Slicer and Evans JJ, 2 November 1999).

5 See (2001) 185 ALR 1, 39, [135] – [138].

6 Ibid 38, [132].

7 Ibid 46-47, [160].

8 Ibid 53, 268, [183], [268].

9 Ibid 55, 56, [189], [191].

10 Ibid 85, [298].

11 Ibid 95, [335].

12 Ibid 103, [348].

13 Lenah Game Meats Pty Ltd v Australian Broadcasting Corporation[1999] TASSC 114 (2 November 1999) [72].

14 The judgments of Gummow JJ, Hayne, Gaudron J, and Gleeson CJ are discussed below.

15 (2001) 185 ALR 1, 24, [88] (Gummow and Hayne JJ).

16 Ibid 24-6, 30-1, [88] – [92], [105].

17 Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148, 153; Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1, 24, [21]; Fejo v Northern Territory (1998) 195 CLR 96, 121-2, [26]-[27].

18 (2001) 185 ALR 1, 25, [91].

19 Ibid 17, [59] (Gaudron J).

20 Ibid 6, [12] (Gleeson CJ), 18, [62] (Gaudron J). Note that Gummow and Hayne JJ also refer to the power of the court to protect the integrity of its processes in relation to 'anti-suit injunctions' ibid 24, [94].

21 Ibid 6, [12] (Gleeson CJ), 27 [62] (Gaudron J).

22 Ibid 45, [159].

23 Ibid 83, [287].

24 Ibid 83, [288].

25 Ibid 25-6, [92].

26 (1937) 58 CLR 479, 509.

27 Ibid 32, [109] – [110].

28 (1984) 156 CLR 414, 445-6.

29 See also the statement by Gummow and Hayne JJ that '[d]ecisions of equity courts are not a wilderness of single instances determined by idiosyncratic exercises of discretion', ibid 39, [138].

30 (1986) 4 NSWLR 457, 463.

31 (2001) 185 ALR 1, 28-9, [100].

32 See ibid 14-15, [44] –[46].

33 See for example the analysis of Gleeson CJ, ibid [44].

34 Ibid 85, [298].

35 Note that this involves both tangible and intangible (ie copyright) property. See further the discussion below concerning the equitable ownership of copyright.

36 (2001) 185 ALR 1, 84- 5, [296].

37 Ibid 85, [297].

38 Ibid 87, [303].

39 (1910) 12 CLR 105, 110.

40 [1978] Qd R 72. Note that this is considered further below in discussing possible equitable ownership of the copyright in the videotape. See below n 116.

41 (1998) 45 NSWLR 570.

42 Callinan J refers to Home Office v Harman [1983] 1 AC 280 but see also Ainsworth v Hanrahan (1991) 25 NSWLR 155.

43 Wheatley v Bell[1982] 2 NSWLR 544.

44 (1986) 4 NSWLR 457 ('Lincoln Hunt').

45 Ibid 463.

46 Ibid.

47 Ibid.

48 Ibid 464.

49 It should also be noted that the case was dealt with summarily and had to be concluded within a limited time, with reasons held over for only one night: ibid 458.

50 See Church of Scientology Inc v Transmedia Productions Pty Ltd (1987) Aust Torts Reports ¶80-101 (Needham J); Emcorp Pty Ltd v Australian Broadcasting Corporation [1988] 2 Qd R 169 (Williams J); Blacktown City Council v Sharp [2000] NSWSC 339 (11 April 2000); Whiskisoda Pty Ltd v HSV Channel Seven Pty Ltd (Unreported, Supreme Court of Victoria, McDonald J, 5 November 1993). Rinsale Pty Ltd v Australian Broadcasting Corporation (1993) Aust Torts Reports ¶81-231 62,380; Takhar v Animal Liberation SA Inc [2000] SASC 400, Unreported, Lander J, 24 November 2000) [75]-[80]. For a discussion of some of these cases see RP Handley, 'Trespass to Land as a Remedy for Unlawful Intrusion on Privacy' (1988) 62 Australian Law Journal 216 and AH Hudson, 'Consumer Protection, Trespass and Injunctions' (1988) 104 Law Quarterly Review 18.

51 [1988] 2 Qd R 169 (Williams J).

52 See generally the discussion in Simon Bronitt and Bernadette McSherry, Principles ofCriminal Law (2001), 380 and 426ff.

53 (2001) 185 ALR 1, 50, [172] (footnotes omitted).

54 Ibid 52-3, [181] (footnotes omitted).

55 Ibid 53, [182].

56 See Australian Law Reform Commission, Unfair Publication: Defamation and Privacy, Report No 11 (1979) 112-16 [215]-[222]; Australian Law Reform Commission, Privacy, Report No 22 (1983) vol 2, 21 [1076]; Megan Richardson, 'Breach of Confidence, Surreptitiously or Accidentally Obtained Information and Privacy: Theory versus Law' (1994) 19 Melbourne University Law Review 673, 675; ibid [186] (Kirby J).

57 (1937) 58 CLR 479, 509. See the discussion above n 29 and accompanying text.

58 New South Wales, Report on the Law of Privacy, Parliamentary Paper No 170 (1973) para 12.

59 (2001) 185 ALR 1, 91, [320].

60 (1937) 58 CLR 479, 509-10.

61 (2001) 185 ALR 1, 13 [42].

62 Gummow and Hayne JJ refer to Tucker v News Media Ownership Ltd [1986] 2 NZLR 716; Bradley v Wingnut Films Ltd[1993] 1 NZLR 415; P v D[2000] 2 NZLR 591, [117] n 129.

63 William Prosser, 'Privacy' (1960) 48 California Law Review 383, 389. This categorisation has been accepted by the United States Supreme Court in Time Inc v Hill, 385 US 374, 383 (1967); Cox Broadcasting Corporation v Cohn 420 US 469, 488 (1975), and forms the basis of the Privacy topic in the Restatement (Second) of Torts (1977) s 652A-E. See Lenah Meats (2001) 185 ALR 1, 35, [120] (Gummow and Hayne JJ), [323] (Callinan J).

64 Restatement (Second) of Torts (1977) s 652A-E.

65 Thus the privacy interest argued for by the respondents was to be free of publicity of facts obtained unlawfully.

66 (2001) 185 ALR 1, 12, [35].

67 Ibid 13-14, [43].

68 Ibid.

69 Ibid 37, [125] drawing on the words from Douglas v Hello! Ltd [[2001] 2 WLR 992, 1025; [2001] 2 All ER 289, 320.

70 (2001) 185 ALR 1, 37, [126].

71 And hence it can't be used to effect, among others, a generalised tort of unfair competition rejected in Moorgate Tobacco Co Ltd v Philip Morris Ltd [No 2] (1984) 156 CLR 414, 445-6.

72 Kirby J referred to R v Broadcasting Standards Commission; Ex parte British Broadcasting Corporation [2000] 3 WLR 1327, 1337 [33] which held that a corporation may be entitled to protection of privacy under the Human Rights Act 1998 (UK), at least for the purposes of whether the Broadcasting Standards Commission had jurisdiction to hear a complaint of interference with privacy by the BBC; cf Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs (1985) 156 CLR 385, 395 where Murphy J denied companies the privilege against self-incrimination, referring to Hale v Henkel, 201 US 43, 74 (1906); United States v White, 322 US 694, 698-9 (1944).

73 Opened for signature 19 December 1966, 999 UNTS 17 (entered into force 23 March 1976).

74 (2001) 185 ALR 1, 55-6 [190].

75 Ibid 89, [316].

76 Ibid 93, [328].

77 Ibid 94, [329].

78 (1997) 189 CLR 520 ('Lange').

79 (2001) 185 ALR 1, 12, [35].

80 Ibid 7-8, [20].

81 Kirby J draws the analogy with the way in which granting interlocutory injunctions to prevent allegedly defamatory material involves exercising care to balance the protection of the individual against the public interest in freedom of speech, citing Wilson v Parry (1937) 54 WN (NSW) 167, 169; Stocker v McElhinney (No 2) [1961] NSWR 1043, 1049 (Walsh J); Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153, 160-1; see alsoBonnard v Perryman[1891] 2 Ch 269, 284: (2001) 185 ALR, 1, 60 [207] n 292.

82 Ibid 63, [216].

83 Ibid 60, [205], 63, [219].

84 See Lange (1997) 189 CLR 520, 567 (citations omitted).

85 Ibid.

86 The Court in Lange seemed to equate the test of proportionality with being reasonably appropriate and adapted: Lange (1997) 189 CLR 520, 561-2, 567-8.

87 Coverage refers to the category of communications that is accorded some level of protection under the freedom, see Adrienne Stone, 'Rights, Personal Rights and Freedoms: The Nature of the Freedom of Political Communication' (2001) 25 Melbourne University Law Review 374, n 12.

88 (2001) 185 ALR 1, 58, [197].

89 Kirby J also relied on the damage that would be done to the business through release of the footage, though presumably only to suggest that how possums are processed is a matter of national concern: ibid.

90 Ibid 63, [219].

91 Ibid. It should be noted that this may represent an expansion of the coverage of the protection of political and governmental communication to include issues which may be influenced by political players, or alternatively a form of communication that develops qualities desirable in a voter as discussed by Stone, above n 87, 387.

92 The Court in Lange suggested that, although freedom of political communication directly precluded 'the curtailment of the protected freedom by the exercise of legislative or executive power' (Lange (1997) 189 CLR 520, 560) it also suggested that development of the common law ought to take into account constitutional values: Lange (1997) 189 CLR 520, 571. None of the judges in Lenah had to consider the impact of the freedom of political communication on the development of any tort of privacy.

93 Lange (1997) 189 CLR 520, 566-7.

94 (2001) 185 ALR 1, 13, [42].

95 For a discussion of the way in which autonomy may be instrumental to the achievement of representative and responsible government see Stone, above n 87, 391ff.

96 (2001) 185 ALR 1, 101, [345].

97 Ibid 99-100, [342].

98 Ibid 103, [348]. Note that Callinan J also considers that there should be no need for extra caution in deciding whether to grant an injunction in a defamation case. The need for caution reflects giving all weight to free speech with insufficient weight to the continued hurt to a defamed person: ibid 103- 105, [349] – [352].

99 See for example the description of the facts by Gleeson CJ, ibid 9, [25].

100 Ibid.

101 Note that the argument presented here is not intended to be comprehensive but merely to raise the question as to whether an argument in favour of breach of confidence could have been sustained, or, least to illustrate that further consideration of the issue was needed.

102 Coco v A N Clark (Engineers) Ltd (1969) RPC 41, although note that there has been doubt expressed about the need to establish detriment beyond the breach of the relationship of confidence.

103 Douglas v Hello! Ltd[2001] 2 All ER 289, 324 [138] (Sedley LJ), 329, [165] (Keene LJ).

104 See the discussion in Sam Ricketson, The Law of Intellectual Property: Copyright, Designs & Confidential Information (1999), [25.85].

105 [1982] QB 1, 28 (Shaw LJ).

106 See also Mills v News Group Newspapers Ltd [2001] EWHC Ch 412 (4th June, 2001) [25] where it was stated –∽[s]o the fact that information may be known to a limited number of members of the public does not of itself prevent it having and retaining the character of confidentiality, or even that it has previously been very widely available', citing as examples Stephens v Avery, [1988] Ch 449, 454, 454; R v Broadcasting Complaints Commission; Ex parte Granada Television Ltd. [1995] EMLR 163, 168; Creation Records Ltd. v. News Group Newspapers Ltd [1997] EMLR 444, 456 (Shaw LJ's Footnote).

107 [2000] NSWSC 198.

108 Ibid 9, [25].

109 [1982] 1 NSWLR 24.

110 See Richardson, above n 56, 689, n 113.

111 The issue of whether harm may occur outside of the court's jurisdiction also raises various issues that have not been clearly answered, but there would appear little justification in requiring that secrecy only apply to the jurisdiction of the court. Cases have denied secrecy on the basis that information, although held overseas, would be known by competitors of the applicant for relief and thus was no longer secret; see Franchi v Franchi [1967] RPC 149 (Ch). Gummow and Hayne JJ in Lenah in discussing the concession about the breach of confidence, suggest that information may be regarded as public knowledge though only notorious in a particular industry ((2001) 185 ALR 1, 21 [73]). While it may still be possible to argue that what the particular process looks like in the Respondent's abattoir may not be generally known, the most important question is whether information that is intentionally limited to a particular industry can remain confidential to the public at large.

112 This is suggested by Callinan J: (2001) 185 ALR 1, 71, [249] and 80-1,[279]-[280].

113 See, for example, the discussion in Ricketson, above n 104, [25.140], Richardson, above n 56; and the discussion below. Gleeson CJ also suggests that 'equity may impose obligations of confidentiality even though there is no imparting of information in circumstances of trust and confidence', (2001) 185 ALR 1, 11, [34].

114 Coco v A N Clark (Engineers) Ltd (1969) RPC 41, 48 (Megarry J).

115 For example, Mason J in The Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR 39, 51 pointed out that 'when equity protects government information it will look at the matter through different spectacles'.

116 In Franklin v Giddins [1978] Qd R 72 use of stolen nectarine bud-wood was held to be a breach of confidence, illustrating that trespass can lead to the establishment of a confidential relationship.

117 See the discussion in Ricketson, above n 104, [25.129] - [25.130]. Gleeson CJ accepted that obligations of confidentiality may be imposed even though there is no imparting of information in circumstances of trust and confidence ((2001) 185 ALR 1, [34]).

118 [2001] 2 All ER 289.

119 Ibid.

120 The Human Rights Act 1998 (UK), s 6 requires every public authority, including courts, to act consistently with the European Convention of Human Rights, which includes the right to freedom of expression (art 10) and the right to respect for private and family life, his home and his correspondence (art 8).

121 Brooke LJ suggested that it was not a private wedding in the normal sense of the word ([2001] 2 All ER 289, 314, [95]), Sedley LJ suggested that the wedding would have been private but for the photos being sold for publication, but even then they maintained the element of privacy that enabled them to 'maintain the kind of image which is professionally and no doubt also personally important to them' (ibid 324-5, [140]) and Keene LJ suggested that only a limited amount of privacy had not been lost through the widespread publicity (ibid 331, [169] - [171]).

122 (2001) 185 ALR 1, 34, [116].

123 Ibid 12, [39].

124 Ibid 37-8 [128] quoting from Anthony D'Amato, 'Comment: Professor Posner's Lecture on Privacy' (1978) 12 Georgia Law Review 497, 499-500.

125 See the discussion in Ricketson, above n 104, [26.5].

126 Smith Kline & French Laboratories (Australia) Ltd v Secretary, Department of Community Services and Health (1990) 17 IPR 545, 583.

127 Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1987) 10 IPR 153, 232-5 (Kirby P); Esso Australia Resources Ltd v Plowman (Minister for Resources) (1995) 183 CLR 10, 31-2 (Mason CJ); Westpac Banking Corporation v John Fairfax Group Pty Ltd (1991) 19 IPR 513 (NSW Supreme Court, Powell J).

128 In the words of Lord Wilberforce in British Steel Corporation v Granada Television Ltd [1981] 1 All ER 417, 455.

129 Callinan J agreed with this point, (2001) 185 ALR 1, 88, [309].

130 Ibid 29 30, [101] –[103].

131 Ibid 29, [102].

132 See the discussion in Ricketson, above n 104, [14.132] and [14.335].

133 (1998) 41 IPR 513.

134 Ibid 531-2.

135 Callinan J, (2001) 185 ALR 1, 84-85 [296] raises the possibility of treating the tape itself as a tangible item of property in the same way as any other stolen goods.

136 For example, Johns v Australian Securities Commission (1993) 178 CLR 408, 459-60; Breen v Williams (1996) 186 CLR 71, 129; Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501, 537, 567.

137 For example, Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR 39.

138 See text above before n 17.

139 Church of Scientology of California Inc v Reader's Digest Services Pty Ltd[1980] 1 NSWLR 344, 349; National Mutual Life Association of Australasia Ltd v GTV Corp Pty Ltd [1989] VR 747, 764. See also above n 81.

140 Kirby J cites ([207]) Wilson v Parry (1937) 54 WN (NSW) 167, 169; Stocker v McElhinney (No 2) [1961] NSWR 1043, 1049 (Walsh J); Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153, 160-1; see also Bonnard v Perryman [1891] 2 Ch 269, 284.

141 (2001) 185 ALR 1, 104-5 [351].

142 [2001] 2 All ER 289, 314-315, [96] – [99].

143 Lenah Game Meats Pty Ltd v Australian Broadcasting Corporation[1999] TASSC 114 (2 November 1999), [16].

144 (2001) 185 ALR 1, [123].

145 Breen v Williams (1996) 186 CLR 71, 128. (Gummow and Hayne JJ's footnote).

146 Gurry, Breach of Confidence, (1984), 162-8; Richardson, above n. 110, 684-97. (Gummow and Hayne JJ's footnote).

147 Henderson v Radio Corporation Pty Ltd (1960) 60 SR (NSW) 576;Moorgate Tobacco Co Ltd v Philip Morris Ltd [No 2] (1984) 156 CLR 414, 445. (Gummow and Hayne JJ's footnote).

148 [1897] 2 QB 57. (Gummow and Hayne JJ's footnote).

149 Townshend-Smith, '∽Harassment as a Tort in English and American Law: The Boundaries of Wilkinson v Downton-, (1995) 24 Anglo-American Law Review299; Todd,'∽Protection of Privacy', in Mullany (ed), Torts in the Nineties, (1997) 174, 200-4. (Gummow and Hayne JJ's footnote).

150 J Lyons & Sons v Wilkins[1899] 1 Ch 255, 267-8, 271-2, 273-4; Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479, 504, 517, 524; Sid Ross Agency Pty Ltd v Actors and Announcers Equity Association of Australia[1971] 1 NSWLR 760, 767. (Gummow and Hayne JJ's footnote).

151 Gleeson CJ points out that enforcement of the criminal law by civil injunction at the suit of a private litigant is an exceptional and narrowly confined jurisdiction, referring to Gouriet v Union of Post Office Workers [1978] AC 435, 476-84, [49].

152 Privacy Amendment (Private Sector) Act2000 (Cth).