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

Article excerpt

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. …