Australian Broadcasting Corporation V Lenah Game Meats: Privacy, Injunctions and Possums: An Analysis of the High Court's Decision

Taylor, Greg, Wright, David, Melbourne University Law Review

I    Introduction: The Facts
II   Privacy
       A  Introduction
       B  Is There a Right of Privacy?
       C  Why Not Breach of Confidence?
       D  Why No Privacy for Corporations?
       E  Conclusion on the Tort of Privacy
III  Remedies: The Interlocutory Injunction
       A  The Cause of Action Requirement
       B  Prima Facie Test Returns
       C  Interlocutory Relief
       D  The Modern Media and the Modern Need for Interlocutory Relief
       E  The Rise of the True Injunction
       F  The Impact of The Judicature Acts
       G  Conclusion on the Interlocutory Injunction
IV   Conclusion

I INTRODUCTION: THE FACTS

The facts of Lenah were quite simple. Lenah Game Meats (`LGM'), the plaintiff at first instance and respondent in the High Court appeal, ran a factory in Tasmania which `processed' live brush-tail possums for the export market in accordance with a licence issued for that purpose and with the usual practices of abattoirs involved in the production of fresh meat. LGM's export market consisted mostly of Asian countries. At some unknown time, a person or persons unknown gained access to LGM's factory and installed cameras in positions which enabled the most sensitive parts of this process to be observed. This included the areas in which the possums were first stunned and then had their throats cut. At a later time, a person or persons unknown gained access to the factory and retrieved the film. The film next surfaced in the possession of Animal Liberation Ltd, originally the second defendant before the Supreme Court of Tasmania (but not a party to the High Court appeal). Animal Liberation Ltd offered the film to the Australian Broadcasting Corporation (ABC), the appellant before the High Court, for broadcasting. The ABC accepted this offer and was planning to broadcast the film on The 7.30 Report. It eventually did broadcast at least part of it. (1)

An attempt by LGM to prevent the broadcast by means of an interlocutory injunction was unsuccessful before Underwood J in the Supreme Court of Tasmania, but succeeded before the Full Court. (2) The ABC obtained special leave to appeal to the High Court. Issues of both privacy and the nature of interlocutory injunctions were dealt with on appeal.

II PRIVACY

A Introduction

Almost certainly the tort of trespass had been committed against LGM, but not by the ABC. As there was therefore no existing cause of action which, on Australian precedents, was immediately obvious as an appropriate remedy for LGM as against the ABC, LGM clearly decided that it wished to argue for a tort of invasion of privacy. The decision in Lenah thus provided--much earlier than could have been anticipated when the hypothesis was advanced (3)--a test of the hypothesis that the common law of Australia is unlikely to develop a cause of action in tort to protect privacy as such--that is, a tort of unjustified invasion of privacy, as distinct from the protection offered by tort law and other areas of the law as a side effect of the existing protection of other interests in areas such as defamation. Unfortunately, an analysis of the judgments in Lenah reveals that the High Court dealt with both this general question and the question of whether corporations are entitled to a measure of privacy in a somewhat unsatisfactory manner. In relation to the first issue (whether LGM enjoyed some sort of privacy protection) this is not principally because of the Court's doubts as to whether there is a tort of unjustified invasion of privacy at all nor the resulting uncertainty which it has created, or perhaps perpetuated, on this point in Australian law. Rather, the Court failed to live up to the promise contained in the judgments of determining whether an existing cause of action, namely, breach of confidence, could be extended to provide greater protection for privacy without creating a new cause of action. This was, as we shall see, chiefly the result of an unwise concession by LGM. In relation to the second issue (privacy for corporations) the Court's conclusion that a tort of privacy, if it exists, does not protect corporations is far too simplistic.

B Is There a Right of Privacy?

On a formal level, the decision in Lenah leaves the concept of a tort of privacy in Australian law in much the same position as it was before the case was decided: it remains a matter of great uncertainty, and arguments in favour of the existence of such a tort will only be resorted to by those who have no case under more familiar headings. That is not to say that there is nothing to be gained at all from reading the case as far as the concept of a privacy tort is concerned. However, the lack of a majority judgment among the six judges, coupled with the somewhat cautious nature of their statements--largely a product of the erroneous assumption that the issue was moot in this case, because even if there is a tort of privacy it could not protect corporations such as LGM--means that it is difficult to extract anything very informative from it.

For present purposes, on the issue of the existence of a general privacy tort, their Honours may be divided into three camps: the doubters, the agnostics, and the possible converts to the idea. By far the largest camp is that of the agnostics, with four adherents; (4) the other two camps consist of only one Justice each. (5) Although a majority of the Court, the agnostics are themselves subdivided into two further camps, which may be labelled for convenience (and without intending any disrespect) the procrastinators and the convinced agnostics.

Starting then with the latter camp, the convinced agnostics: it consists of Gummow and Hayne JJ, with whom Gaudron J agreed (6) without adding any further comments on this aspect of the case. The central passage in their Honours' judgment on this point is as follows:

   It may be that development [of the law in the area of invasion of
   privacy] is best achieved by looking across the range of already
   established legal and equitable wrongs. On the other hand, in some
   respects these may be seen as representing species of a genus,
   being a principle protecting the interests of the individual in
   leading, to some reasonable extent, a secluded and private life, in
   the words of the [Restatement of the Law Second, Torts], `free from
   the prying eyes, ears and publications of others'. Nothing said in
   these reasons should be understood as foreclosing any such debate or
   as indicating any particular outcome. (7)

The latter outcome--the `species of a genus' approach--might be seen as a way of developing a stand-alone right of privacy in tort in a rather similar way to the creation of the tort of negligence out of a `wilderness of single instances' in Donoghue v Stevenson. (8) It would involve subsuming the existing protection of privacy in areas such as breach of confidence, passing off, protection against publication of one's letters and manuscripts, implied contractual rights not to have information or photographs disseminated and possibly also defamation under some broader heading which recognised privacy as such as a legally protected interest. The former outcome would be closer to the way in which the law usually develops by means of incremental advances rather than the dramatic creation of completely new rights. However, their Honours are of the view that any `emergent tort of invasion of privacy' (9) will not be available to corporations, and so the question is left open.

If their Honours had said nothing further on this issue, there would be little more to say about their judgment. Moreover, the statement that `[n]othing said in these reasons' may be understood as `indicating any particular outcome' must not be ignored or brushed aside in the search for hints about the way in which their Honours' minds might be turning. (10) Nevertheless, it is hard to overlook the statement earlier in the judgment, and repeated only shortly before the statement just quoted, that `the better course ... is to look to the development and adaptation of recognised forms of action to meet new situations and circumstances.' (11) This statement is itself based on what was said in Moorgate Tobacco v Philip Morris [No 2], (12) in which the High Court rejected the notion of a broad new tort of `unfair competition' such as had developed in the United States, (13) preferring instead to proceed incrementally and to leave bold new steps in the law to the legislature. It is interesting to note that the leading judgment in Moorgate was given by Deane J, who might be accused of having abandoned this approach in his later judicial career. (14)

Returning to the judgment of Gummow and Hayne JJ in Lenah, one must wonder, in the light of the second statement quoted, whether, in the first statement quoted, the words `in some respects' bear a greater weight than they otherwise might, so that on close analysis there can be discerned a preference for the incremental development of existing causes of action, rather than the `big bang' approach of a new tort of invasion of privacy as happened in the US. (15) Or perhaps this apparent contradiction is merely a by-product of the fact that two judges have contributed to writing one judgment. It would be very interesting to know whether the two statements were written by the same judge.

Certainly, the obstacles in the path of the `big bang' approach are formidable. Gummow and Hayne JJ refer to LGM's `difficulty in formulating with acceptable specificity the ingredients of any general wrong of unjustified invasion of privacy.' (16) Not only is it the case that privacy is an extraordinarily difficult concept to define. It is also the case that distinguishing between acceptable invasions of privacy in the public interest and in the interests of free speech on the one hand, and unjustified invasions, on the other, is an extraordinarily difficult balancing act. In the US at least, the courts have generally not performed this balancing act well, having fallen into the trap of permitting virtually anything to be published if the public has an interest in it, confusing this with the concept of the public interest. (17) This permits privacy to triumph only when it is not jeopardised. (18) This sort of thing does not give one great confidence in judgemade privacy law. There is also the more general question of whether judges are entitled to develop a general right of privacy in an area in which various legislatures have shown some moderate interest but have not gone so far as to endorse a general right of privacy. (19) Furthermore, there is certainly something to be said for the view that a fully-fledged tort of privacy will be more coherent--not to mention more democratically legitimate--if it is the subject of considered legislation setting out its elements and exceptions in some detail rather than produced by the haphazard process of judicial development which has failed in the US (and which, it might also be said, is responsible for the current state of the law of negligence).

This possible limitation on judicial power in the face of legislative inaction, or rather partial legislative action, was another principle to which Deane J referred in Moorgate, (20) and so it might well have been present in their Honours' minds when writing the joint judgment in Lenah. In any event, despite the disclaimer quoted above, it is hard to read the second statement and similar passages in the rest of the judgment without feeling that their Honours' scepticism is tempered by some feelings of doubt.

Kirby J's agnosticism is somewhat less complicated, for his Honour concludes that a basis for an interlocutory injunction against the defendant existed on other grounds, as will be seen in the treatment of remedies in the case. (21) Nevertheless, his Honour asks `[w]hether, so many years after Victoria Park and all that has followed, it would be appropriate for this court to declare the existence of an actionable wrong of invasion of privacy'. (22) This statement is clearly also tinged with some doubt as to whether the well-known case of Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (23) stands in the way of such a development--as to which the judges in Lenah provide a conspectus of views all of which may be said to be justifiable on the doctrine of precedent. (24) This is especially so when one adds to Victoria Park the consensus (at least until Lenah) that there is no tort of invasion of privacy in Australian law. Additionally, a perusal of the transcript of argument in Lenah suggests that Kirby J may well share the doubts which were expressed above about the effectiveness and legitimacy of a judicially-created law of privacy. (25) In any event, Kirby J decides to `postpone an answer' to the `difficult question' (26) whether there is such a tort of invasion of privacy, and little more is to be gleaned from his Honour's reasons in this respect. This is somewhat regrettable, given his Honour's earlier involvement in this area in an extrajudicial capacity, (27) and the fact that his Honour would certainly have been able to add to the debate on this issue. However, given the structure of his argument, it is a sensible course to take.

So much, then, for the agnostics. Although it was postulated that, as frequently occurs, agnosticism may in fact be rooted in doubt, a more thorough and clearer example of doubt verging on disbelief is provided by Gleeson CJ. His Honour expatiates at some length on the difficulties of dividing the private from the public, especially having regard to the need for free speech, and states that these matters are `a reason for caution in declaring a new tort of the kind for which the respondent contends.' (28)

Finally, there is the possible convert, Callinan J, whose stance in this case shows, incidentally, how simplistic it is to categorise judges as `conservative' (or, for that matter, `progressive') and then to expect them, without exception, to follow that line automatically in every case. Admittedly, it is very hard to read the judgment of Callinan J without coming to the conclusion that his Honour's experience as a barrister has greatly affected his views, but there is, of course, nothing wrong with that. Although, for similar reasons to Kirby J, Callinan J does not deal with the concept of privacy, his Honour's `tentative views' (29) are `that, having regard to current conditions in this country, and developments of the law in other common law jurisdictions, the time is ripe for consideration whether a tort of invasion of privacy should be recognised in this country', (30) or whether the matter should remain in the hands of the legislatures. This statement is certainly no unambiguous confession of faith--indeed, it could almost have been written by Sir Humphrey …

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Publication information: Article title: Australian Broadcasting Corporation V Lenah Game Meats: Privacy, Injunctions and Possums: An Analysis of the High Court's Decision. Contributors: Taylor, Greg - Author, Wright, David - Author. Journal title: Melbourne University Law Review. Volume: 26. Issue: 3 Publication date: December 2002. Page number: 707+. © 2008 Melbourne University Law Review. COPYRIGHT 2002 Gale Group.

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