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CONTENTS
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.
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.
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 judge-made 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 Appleby — but it is certainly the most ‘pro-privacy’ statement in the entire case.
In referring to the ‘current conditions in this country’, Callinan J is referring principally to the defects of today’s media and the willingness of some practitioners of the art of journalism to trample on others’ rights in the quest to sell their product, ignoring the facts if they get in the way.[31] Whatever one may think of the idea of a new judicially-created tort of privacy, this willingness to see the media other than through rose-coloured spectacles and as requiring supervision by the courts is a refreshing contrast to some judgments of the Court which were handed down in the 1990s. The most striking example of this was Deane J’s judgment in Theophanous v Herald & Weekly Times Ltd,[32] under which the liability of the media in defamation would effectively have been abolished in political matters.[33]
Stepping back from the detail of the judgments and looking at the case as a whole, the main impression produced is one of uncertainty and indecision. To some extent, this is explained either by reliance on other areas of law (as with Kirby and Callinan JJ) or, more generally, the doubts about whether a corporation is entitled to take advantage of the tort of privacy if it exists. Nevertheless, there is a striking contrast between the caution of the High Court and the boldness shown by various State Supreme Courts in the US[34] and (in a somewhat different statutory and case law context, together with fewer high-sounding proclamations) the German Federal Supreme Court,[35] which created the equivalent of a tort of invasion of privacy despite a somewhat less-than-promising statutory and precedential situation. One does not have to look far for the reason: in both Germany and the US there are legal provisions which proclaim, or can be interpreted to proclaim, the value of privacy in the public law setting — that is, against the state[36] — and which can be mobilised in favour of a broader role for privacy in the legal system generally. A similar development appears to be taking place in England under the influence of the Human Rights Act 1998 (UK) c 42.[37] As Gleeson CJ recognises, however, there is no such pre-existing public law value in Australia.[38] Attempts to create judicial protection of privacy by means of a new tort are thus made to look rather unconvincing.[39] This deficit shows through clearly in Lenah.
This does not mean, however, that the Court in Lenah was excused from considering whether existing causes of action,[40] rather than a new tort, might suffice to remedy the wrong of which LGM complained. The most serious defect in the Court’s consideration of the case is its total failure to consider recent English case law — predating the Human Rights Act 1998 (UK) c 42[41] — which suggests that LGM was entitled to a remedy. In the Court’s defence, however, it must be said that it was perhaps LGM’s decision to ‘go for broke’ and to seek the Court’s recognition of a new tort which caused the possibilities of the existing English law to be overlooked. LGM’s overambitious program may have been something of a mistake.[42] Even more surprising, and perhaps the second principal reason for LGM’s failure, is its concession that the information contained on the videotape was ‘not confidential’.[43]
The paradigmatic (or ‘usual’)[44] case of breach of confidence involves some pre-existing relationship between the parties — originally,[45] but not always, created by a legally enforceable contract such as that between employer and employee[46] — which involves some sort of express or implied obligation of confidentiality. This principle is of course available to corporations,[47] which is not surprising given its original contractual nature. Indeed, as far as these authors are aware it was not until Duchess of Argyll v Duke of Argyll[48] that it was extended to a relationship, namely a marriage, which is not contractual in the commercial sense. However, as commentators have pointed out, the English courts have gone one step further and have recognised an obligation of confidentiality ‘not on the basis of a mutual, though unspoken agreement on the matter, but on the basis that the reasonable man in the position of the defendant would have assumed such an obligation.’[49] Thus, in Stephens v Avery, not only was the public spared the knowledge of details of a lesbian relationship which one of the parties wished to publish,[50] but cases in which there was no prior relationship at all have also been covered. It has been recognised that information obtained as a result of telephone tapping[51] and the leaking of the names of HIV-positive doctors to the media[52] both fall under this principle. The distinction between a telephone tap and the secret camera installed in Lenah is, needless to say, a distinction without a difference.
While Phillipson and Fenwick describe this development of the law as ‘bold’ and ‘radical’,[53] we consider it to be a natural development of the law of breach of confidence, at least as it affects information obtained surreptitiously. Firstly, to confine the protection of breach of confidence to cases in which information is knowingly imparted in a pre-existing relationship of some sort and to exclude the surreptitious obtaining of information without the affected party’s knowledge where there are no prior dealings is clearly an anomalous incentive to be furtive. There is every reason to say that if information is obtained surreptitiously, there is an a fortiori case of breach of confidence. Indeed, there is old authority to that effect.[54] Whether the same principle can be extended to information obtained neither in a relationship, nor surreptitiously, but accidentally (as a result of innocently picking up material found on the street, for example),[55] is not a matter which need be considered here as it did not arise on the facts of Lenah.
Secondly, the requirement that confidential knowledge should be imparted voluntarily in a prior relationship itself implies an element of reasonableness once the requirement of an express agreement is abandoned: if, for example, in the case of Stephens v Avery,[56] the knowledge had been originally imparted by the plaintiff to a journalist for publication rather than to the other party to the relationship, there would have been no breach of confidence in publishing it. A less clear example in which the requirement of reasonableness is more apparent would be the same transfer of knowledge to, say, a large group of lesbian rights activists at a public meeting. The point is that it would not usually be reasonable to expect a journalist to refrain from publishing information received, and it would only arguably be reasonable — depending perhaps on the degree of publicity given to the meeting, its openness to the public, its size, and so on — to expect information imparted at the lesbian rights meeting not to be published. But, of course, it is reasonable to expect one’s lover to keep confidences about one’s relationship.[57] Therefore, as soon as the element of an express agreement of confidence is abandoned, the issue of whether it was reasonable to expect information to be kept private in a particular relationship automatically arises, because it is not reasonable to expect all relationships to be relationships of confidence. Even in cases in which an obligation of confidence is said to be implied in a contract, it is necessary to ask whether such an implication is reasonable.[58] And it is but a short step from saying that information which is voluntarily imparted must not be released if it would be unreasonable to do so having regard to the circumstances, to saying that information, whether voluntarily imparted or not, which a reasonable person would realise was confidential must also not be publicised. This process of reasoning would, of course, also cover information accidentally obtained.
With the exception of Callinan J,[59] this development of the law in England is completely missed in Lenah. Perhaps this is because of the equally surprising conclusion that LGM’s activities were not confidential and that breach of confidence would have been available ‘[i]f the activities filmed were private’.[60] Even if this statement was prompted by a concession by the appellant,[61] the English case law is by no means as exacting in determining what is private, as the cases referred to above show. In X v Y,[62] presumably the fact that certain persons were infected with HIV was known to a fairly wide circle, including friends, family, hospitals and various medical practitioners and counselling services, but no-one suggested it was not confidential on that account. In Stephens v Avery it was said that ‘[i]nformation only ceases to be capable of protection as confidential when it is in fact known to a substantial number of people’,[63] but no attempt was made to apply this criterion in Lenah. One can only wonder what more would have been needed to show that the activities were ‘private’: surely LGM would not have allowed the unknown trespasser to film the abbatoir if he or she had asked and stated truthfully the purpose for which the film was wanted. LGM would certainly not have permitted Animal Liberation Ltd to film, and the very surreptitiousness of the method chosen to obtain the information shows that the unknown film-maker knew that he or she was filming activities which were, at least with respect to animal rights activists, private and confidential. Animal Liberation Ltd and the unknown film-maker must be somewhat amused by the naivety of the Court in this respect.
It is of course open to anyone to determine who shall receive private information about oneself. One might, for example, tell several friends, but not others, a secret.[64] Hence the presence of workers, inspectors and others at LGM’s abattoir, or the licensing of its operations by a public authority,[65] does not mean that the information concerned had ceased to be private as against unauthorised entrants.[66] Inspectors, workers and the like are not a ‘substantial number of people’.[67] The whole point of privacy is that it is the individual’s choice how wide the circle of the informed shall be, and so disclosure to one is not disclosure to all. Presumably, LGM had no choice but to allow government inspectors to enter its site, and so this cannot be seen as a waiver of confidentiality. It must be hoped that the failed US approach, under which anything which is part of a public record, no matter how obscure, cannot be protected by the tort of privacy, and which therefore permits, for example, the publication of the names of rape victims,[68] is never adopted in Australia. It must be asked when an act would be private under the approach of the Court in Lenah. Why is it that an act does not ‘become private simply because the owner of [private property] would prefer that it were unobserved’?[69] If that is not private, what is? What more does the owner of private property have to do?
LGM’s concession seems even more unjustified if one assumes, as seems reasonable, that none of the authorised entrants to the abattoir, such as employees, were permitted to film the plant’s processes. Certainly, none would have been expected to do so in the ordinary course. The videos produced were therefore not existing information, but entirely new information in pictorial form to which no-one had previously had access and which accordingly should have been recognised as having the necessary quality of confidence.[70] The video is much more media-effective than any possible description of the abattoir in a government document or even an eyewitness description of what occurs there. One wonders whether the ABC would have been quite so keen to run the story if it had had access only to non-pictorial information rather than to a video, or, indeed, why the unknown film-maker simply did not obtain the necessary government documents and present them to the ABC. The reason is obvious, and this shows why the video was completely new and confidential information.
All this is particularly disappointing considering that the leading[71] English case, Argyll, had been referred to with approval by Mason J in an earlier High Court decision,[72] that similar principles have been applied at State Supreme Court level,[73] and that the UK precedents indicate a sensible and logical way in which the law of Australia could be developed in a defensible and incremental fashion so as to provide protection in cases of egregious invasions of privacy. There would have been no need for the creation of a new tort,[74] merely for an old principle to be slightly re-fashioned and UK precedents followed. Certainly, at any rate, such a development should have been left open at the interlocutory stage. The relevance of the UK precedents on telephone tapping and leaks to the media is too obvious to need further discussion. Moreover, these cases highlight the peculiarity of the conclusion that the information obtained from LGM was not confidential. Even taking into account LGM’s concession, the fact that this was not taken up in Lenah is a very serious omission and will not, it is hoped, prevent further development of the law along UK lines. In this respect, Lenah should be regarded as having no status as a precedent, having been decided per incuriam — in ignorance of relevant precedents[75] — and/or as the result of an unjustified concession by LGM.
As has just been discussed, there was at least one way of protecting the privacy of LGM by use of an existing principle of law which is clearly available to corporations. But in Lenah there are dicta suggesting that, if a new tort of invasion of privacy is to be recognised, it will not protect corporations. This would not, it might be hoped, extend to withdrawing from corporations the existing protection offered by breach of confidence, or, indeed, any other remedy.[76]
Gummow and Hayne JJ (with whom Gaudron J agreed) stated that ‘[h]owever else it may develop, the common law in Australia upon corporate privacy should not depart from the course which has been worked out over a century in the United States’,[77] and that, as there is no right of privacy for corporations,[78] there could be none here either. This is because corporations are set up to make money. The law of privacy does not protect the pocketbook, but rather human feelings, which corporations do not possess.[79] In this respect, the case was similar to Victoria Park.[80] Gleeson CJ was more equivocal, holding that, while in some circumstances corporate activity may have the necessary attribute of privacy, it might be ‘incongruous’[81] to apply a concept based on human dignity to a corporation. Kirby J, too, expressed ‘doubt’ as to whether a corporation was entitled to take advantage of any tort of invasion of privacy which might exist.[82] The ‘tentative views’[83] of Callinan J were that he would not ‘rule out the possibility’[84] of a successful privacy claim by a corporation, and that the different political and constitutional history of the US was a ‘good reason for not importing into this country all of the North American law’.[85]
The view that corporations must be ruled out entirely from making a claim based on any emergent tort of privacy should be rejected for a number of reasons. Perhaps the most obvious reason is the incoherence which would be introduced into the legal system by such a rule. As we have just seen, corporations can sue in breach of confidence, which is closely related to — and might even be swallowed up by — any new tort of privacy. With the exception of local councils[86] and possibly political parties[87] and other political entities, corporations can also sue in defamation,[88] a tort which surely has its roots in the need to protect human dignity and feelings but which — like any emergent tort of privacy — might occasionally reflect other values. Such values include preserving one’s reputation, compensation for a plaintiff’s financial loss, and deterring the media and other possible defendants.[89] If corporations could sue in defamation but not in privacy, this would produce the odd result that they could claim damages if false statements were made about them[90] but not if true (but private) statements were made that might also injure their good name[91] or expose them to financial loss.
Privacy is not necessarily a personal right of which only natural persons can take advantage. As Gummow and Hayne JJ recognise,[92] one of the branches of US privacy law prevents the appropriation of a plaintiff’s name or likeness for commercial purposes, and this action is available to corporations.[93] So there is nothing inherent in the nature of privacy which wholly prevents it from being applied to corporations just because they are not natural persons.[94] Indeed, there is at least one US case[95] in which the Restatement’s view on the nonavailability of the privacy tort outside the area of appropriation of name or likeness to which their Honours refer[96] is not followed and in which the right of privacy is extended to corporations (or at least corporate associations such as political parties — the judgment is somewhat ambiguous on this point). Recently, in Savannah College of Art and Design v School of Visual Arts, Inc,[97] a corporation’s interest in keeping documents private was recognised, although admittedly not in tort law.
More broadly, it should be recognised that it is contradictory for the legal system to create fictitious persons and then to use their very fictitiousness as a reason for denying them legal rights. The role played by corporations in our economic system, itself an important part of the social fabric, is of course immense. Corporations should not be seen as some sort of sordid but regrettable fact of life, but as an important and valued means of keeping the economy, and thus broader society, functioning. That being so, they do not deserve to be sidelined from important rights such as privacy. As we shall see when reviewing German case law, this does not mean that corporations are to be placed on the same footing as individuals when it comes to privacy, but they are not to be wholly excluded from privacy protection either. Excluding them entirely means that the deterrent effect of the law — also an important function of the law of torts — is removed with respect to corporations. In this respect, it is possible to distinguish the right of silence, which has no (or very little) deterrent function, from privacy-based rights, and thus to distinguish Environment Protection Authority v Caltex Refining Co Pty Ltd[98] as far as it concerns corporations’ right to silence. In an age of computer hacking and sophisticated industrial espionage, it is not desirable to abandon this deterrent function of tort law.[99] For Animal Liberation Ltd and the unknown film-maker, the message of Lenah is that corporations are fair game and that, provided that the persons actually responsible for filming are not detected, and provided a willing broadcaster is found which is kept in the dark about the process of obtaining the information, a green light will be given for the publication of material obtained by questionable methods.[100]
Corporations, in fact, come in all shapes and sizes, and it is too simplistic to say that their interests are always commercial. Certainly that would not be true of Animal Liberation Ltd in Lenah. One wonders what its attitude to privacy would be if any plans it might have for targeting certain firms, or if its financial accounts or membership lists, were about to be revealed publicly. It is easy to imagine other examples.[101] One need only think of a firm of professionals, architects for example, whose good name — and the good name of its partners, who are natural persons — might be damaged if draft plans of a controversial building were published or internal assessments of others’ work appeared in the newspapers. What about a medical practitioner who has incorporated a medical practice? If, for example, a newspaper proposes to publish confidential patient notes without naming the patients themselves, so that the patients cannot sue, is the company to be left without redress in any new law of privacy simply because of the fact of incorporation? What about a corporation’s tax or bank records — may they, apart from statute, be published, even if there is a general tort of invasion of privacy, simply because they are records of a corporation?[102] Why are the personal feelings of Mr Kelly, one of LGM’s directors, of no account? Any victim of a breach of privacy will be able to empathise with the feelings of betrayal, indignation, violation and offence which Mr Kelly must have felt when he found out that his operations had been secretly filmed for a purpose which he might well have regarded with great hostility.
In short, the ‘one size fits all’ approach to corporations is simply untenable. Even assuming that the US law as described by Gummow and Hayne JJ is in fact the common law of the various States, or of most of them,[103] this rule is part of a broader and disappointing US tendency to lay down in advance strict rules based on the alleged nature of things which turn out, on application to circumstances which were not foreseen when the rule was laid down, to be excessively broad and to leave important interests unprotected (and others too well protected).[104] There is no reason why Australia should follow the US approach.
Nor is the parallel drawn with Victoria Park[105] convincing. In that case, the racecourse owners were concerned to prevent information falling into the hands of a commercial competitor. Conversely, in Lenah, the unknown film-maker and Animal Liberation Ltd did not propose to reuse the information for their own commercial benefit. This makes it clear that LGM’s sensitivity was not just a pocketbook sensitivity as it was for Victoria Park Racing and Recreation Ground (‘Victoria Park’). Victoria Park feared the poaching of its customers by a rival, whereas LGM, rather like a private person doing something on his or her private property which he or she does not wish to become public knowledge, feared the damage to its good name if its activities were publicised. The defendants in Victoria Park simply took information already in the limited public domain and relayed it as received, without any direct purpose of harming the plaintiff at all. But the purpose of the unknown film-maker, and then of Animal Liberation Ltd, was to turn the information received by an intrusion on to LGM’s property, which was never in the public domain to begin with, into a weapon against LGM. This is obviously a much greater wrong, and it cannot be dismissed by calling it a pocketbook sensitivity and grouping it with Victoria Park on this basis. The distinction may be made clearer by stating that Victoria Park might have permitted the defendants in that case to do what they wished to do on payment of a fee, but LGM would never have granted that permission to the unknown film-maker or to Animal Liberation Ltd.[106] At any rate, there is no reason why privacy should not protect the pocketbook to some degree: one reason for not wishing to have private information published is that one might otherwise have to incur the expense of moving interstate or overseas where the information is not known and of finding a new job in the new location.
Rather than adopting a strict rule based on the typical features of corporations, German case law, true to the general preference of that system for considering cases on their merits rather than disposing of them by hard and fast rules, adopts a process of considering claims by corporations on their merits as they arise.
French[107] and Italian[108] law appear to take the same approach, thus making the US approach to corporations appear even more of an anomaly. In conducting a brief review of German case law, we come across further types of corporations which, like Animal Liberation Ltd, cannot be said to be established solely or even at all for the purpose of making money. One need only think of public corporations;[109] associations for promoting the ideals of the United Nations, Amnesty International and other worthy causes; churches; charities; the press; sundry voluntary associations; pressure groups; universities;[110] schools; private scholarship bodies; associations for the advancement of international understanding, public welfare objectives such as the prevention of AIDS, or of scholarship; and so on.[111]
The leading case in Germany involves a building firm, the annual accounts of which were used by a university teacher in class to illustrate the state of a financially parlous enterprise. A panel of the Federal Constitutional Court,[112] upholding a decision of the Federal Supreme Court,[113] held that this semipublic use of information breached the firm’s privacy rights. Although firms did not have quite the same degree of privacy rights as natural persons, they did have a claim to be recognised as ‘an economic enterprise of social value’[114] and to the privacy rights which flowed from that. The authors agree with the fairly widespread criticism of this case[115] that it goes too far, on the facts, in the direction of upholding the firm’s privacy rights,[116] but not with the principle laid down by the Court or its recognition of the firm’s claim to be classified as an enterprise of social value, which is merely another way of describing its interest in its good name. In any case, there are better examples. A subsidiary of the German Railways (‘Railways’), in a case somewhat reminiscent of Lenah, was recently held to have a privacy right which prevented a film team from staging a petty theft in a train and filming the other travellers’ reactions.[117] Although the other travellers consented to the showing of the film, possibly as a result of having been ‘coerced by the media culture’,[118] the Railways did not consent to its premises being used for this purpose. It is easy to imagine that the Railways did not want the experience of travel to become a stage for ‘Candid Camera’ with all the congestion and inconvenience to travellers which this might entail. The Chamber Court[119] accordingly held that corporations were entitled to take advantage of the law of privacy ‘to the extent that they need this legal protection to carry out their functions’[120] — surely a more sensible and more flexible rule than the blanket approach adopted in the US. Even incorporated political parties are protected by this principle, although of course there is a wide margin for public discussion.[121] The press is also protected, as shown by a rather famous case in which Günter Wallraff, an investigative journalist, worked undercover at a well-known tabloid newspaper and attempted to publish what he had discovered about its manner of generating news.[122] It was held that the constitutionally guaranteed right of press freedom included a right to editorial freedom and thus editorial secrecy.[123] The Church is also protected, as shown by a recent case involving an allegation that an archbishop had not acted swiftly enough to deal with an alleged paedophilic priest.[124] The untrue allegations made would, admittedly, be actionable in Australia in defamation, which is open to corporations. Even so, the principle is clear, and it would be easy enough to construct some variation on Lenah involving the church — say, a group of cardinals criticising the Pope on church property, which is secretly filmed[125] — in which privacy rights would be required to vindicate the privacy of the church, which cannot be said to be established for solely economic purposes. Similar examples could be constructed with equal ease to cover schools (as most, if not all, private schools are incorporated), universities, charities and so on. Certainly many very important university administrators would be disappointed to find that they are excluded from privacy protection for their equally important secrets simply because a university is a corporation.
These examples — and there are many more in German case law[126] — could easily be multiplied to show that there is no inevitability, as Gummow and Hayne JJ seem to assume, about the US approach. There is a means of dealing with the phenomenon of corporations and privacy which is sensitive to the fact that corporations come in all shapes and sizes. As part of the social fabric, they deserve some limited rights to privacy without, at the same time, ignoring the fact that there are differences between natural persons and corporations. That being so, it would be wrong to deny the protection of a tort of invasion of privacy to corporations solely because they are corporations.
The refusal of three members of the High Court in Lenah to accept that any new tort of invasion of privacy might extend to corporations is one reason why such a tort should be introduced, if at all, by legislative decision rather than judicial decree. Judges sometimes give way to the temptation to lay down broad and sweeping rules to which everyone is then committed and which cannot easily be changed (unless the legislature can be persuaded to step in) when they prove to be misguided or unfair. Of course, the legislature can make mistakes as well, but as well as being democratically legitimate, and thus susceptible to lobbying by those unfairly treated, it is generally freer with amendments and finetuning than are judges to admit that they got it wrong. Of course, as only three judges supported it, the view that corporations are not entitled to privacy is not binding on any future court. In addition, it is not binding on the legislature. If the legislature sees fit to introduce a new tort of invasion of privacy,[127] it is hoped that the mistakes made by Gummow and Hayne JJ will be avoided.
In other respects, Lenah is a most unsatisfactory case, not only because it leaves unanswered the question of whether a new tort of privacy is created, but, chiefly, because it ignores an obvious opportunity to extend the law of breach of confidence in a small but important way (and without creating, by judicial decree, a full-blown right to privacy). It must be hoped that future courts considering issues of this sort do a more thorough and well-researched job. It is hard to imagine that a generally astute court would have made this mistake if it were not for the concession by LGM that the videotape’s contents were not confidential. In addition, the Court had been invited by LGM to do more than judges can be expected to do in all but the rarest of cases: create a new tort where there was none before.
An interlocutory injunction aims to maintain the status quo until the rights of the parties can be determined at the hearing of the case. Under s 11 of the Supreme Court Civil Procedure Act 1932 (Tas), the Supreme Court of Tasmania had the power to grant an injunction to preserve the subject-matter of the dispute and to prevent the destruction of the rights claimed by the respondent so that the claim in Lenah could be heard. Essentially the High Court judgments involving the interlocutory injunction can be divided into three groups:
Fundamentally, Lenah was a very conservative decision regarding the use of the interlocutory injunction. There are six main, frequently inter-related, comments to be made regarding the approach adopted by the majority.
The first comment is that an extremely strict reading of the ubi jus ibi remedium[128] maxim was applied. The way that Gleeson CJ, Gaudron, Gummow and Hayne JJ read the maxim is that if there is no cause of action there is no remedy. As Gleeson CJ stated:
When a plaintiff applies to the 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.[129]
Subsequently the Chief Justice held that ‘[a] plaintiff seeking an interlocutory injunction must be able to show sufficient colour of right to the final relief, in aid of which interlocutory relief is sought.’[130] In a very similar way, Gaudron J stated:
Because it is a remedy, it is axiomatic that it can only issue to protect an equitable or legal right, or which is often the same thing, to prevent an equitable or legal wrong. ... [LGM] points to no equitable or legal right which is or will be infringed by, nor to any equitable or legal wrong involved in, the publication of that material by the ABC. It is, therefore, not entitled to any legal or equitable remedy, including by way of injunction.[131]
For Gummow and Hayne JJ, the scope of legal and equitable rights for which injunctive remedy is available is broadening. However, for their Honours the basic principle
remains that where interlocutory injunctive relief is sought in a judicature system court, it is necessary to identify the legal (which may be statutory) or equitable rights which are to be determined at trial and in respect of which there is sought final relief which may or may not be injunctive in nature.[132]
Although the precise definition by Gleeson CJ, Gaudron, Gummow and Hayne JJ of the injunction maintained the approach evident in recent cases such as Cardile v LED Builders Pty Ltd,[133] it placed undue emphasis on the necessity of a cause of action. The other members of the Court did not agree with this requirement. For example, Kirby J held that there were four reasons why there should be no such requirement,[134] namely: the nature of the statutory power,[135] the powers of courts,[136] the equitable character of the relief sought,[137] and interlocutory realities.[138]
In addition, another reason why the cause of action requirement of Gleeson CJ, Gaudron, Gummow and Hayne JJ is open to criticism is that it fails to deal with quia timet injunctions, for which no cause of action yet exists despite the courts being prepared to grant such injunctions. Also, it is very static and circular[139] for the Court to decide that no legal obligation had been breached, and that therefore no remedy was available, and there was no legal obligation because there was no remedy available. In the US, the object of the temporary injunction is not to determine contested rights, but rather to prevent a threatened wrong or injury to property or rights until the issues or equities can be determined at a full hearing.[140] The classical accessibility threshold in Canada was lowered by the acceptance of the decision in American Cyanamid Co v Ethicon Ltd.[141] The House of Lords in that case placed greater emphasis on the remedial role of interlocutory injunctions — to maintain the status quo where there is a risk of irreparable harm to the applicant. This ‘serious issue to be tried’ test prevails in Canada, rather than a ‘cause of action’ requirement.[142]
Gleeson CJ, Gaudron, Gummow and Hayne JJ seem to reinstate a version of the old test for the grant of an interlocutory injunction from Beecham Group Ltd v Bristol Laboratories Pty Ltd.[143] This test requires the establishment of a prima facie case, in contrast to the ‘serious issue to be tried’ test from American Cyanamid which is usually adopted now.[144] In Castlemaine Tooheys Ltd v South Australia, Mason ACJ established the test to secure an interlocutory injunction.[145] According to this test, the plaintiff needs to show: (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case with the probability that at the trial of the action the plaintiff will be entitled to relief; (2) that the plaintiff will suffer irreparable injury for which damages will not be adequate compensation unless the injunction is granted; and (3) that the balance of convenience favours the granting of an injunction.[146] The first requirement focuses attention on the cause of action. Even if, contrary to what has been argued previously, LGM could not establish a prima facie case with the probability that at the trial of the action the plaintiff would be entitled to relief, it certainly could have satisfied the Court that there was a serious question to be tried. All that is required to establish a serious question to be tried is that the claim be neither frivolous nor vexatious,[147] and there was nothing in Lenah to indicate that the claim was frivolous or vexatious. This is true even though the decision must involve some assessment of the merits of the claim.[148] But the threshold for this has been described as a ‘low one’.[149] Tilbury has commented that
it is inappropriate to consider in any detail the standard of probability of the plaintiff’s case. It is enough at this stage that it can be said either that the
issue is ‘triable’ or ‘arguable’...[150]
Another problem with the majority approach is that there is ample authority for an interlocutory injunction being granted where the law is extremely uncertain.[151] Surely, in this case the law was sufficiently uncertain, and therefore an interlocutory injunction should have been available.
It is suggested that a better approach is that advocated by McGechan J in Tucker v News Media Ownership Ltd.[152] Where a large part of the plaintiff’s case rests upon the novel tort of invasion of privacy this raises a ‘serious issue to be tried’.[153] Consistent with this approach is the observation of Lehane J in Philips Electronics NV v Remington Products Australia Pty Ltd[154] that in cases involving any degree of complexity it is rare in the extreme that an interlocutory injunction will be refused upon the basis of there not being a serious issue to be tried. Also in American Cyanamid, Lord Diplock noted:
It is no part of the court’s function at this stage of the litigation to try to resolve conflicts of evidence on affidavit ... nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial.[155]
Relying on Derby & Co Ltd v Weldon,[156] Martin has similarly stated that it is not the function of the court at the interlocutory stage ‘to resolve difficult questions of law.’[157] What their Honours did in this case was to confuse the law regarding an interlocutory application with the final determination of the case.
It would be natural to feel some sympathy for their Honours if a complex case meant that there was some automatic right to an interlocutory injunction. However, this is to forget two things. The first is the plaintiff’s undertaking as to damages. This undertaking serves not only to protect the defendant from any harm but, as recognised by Jessel MR, it also protects the court from improper and indiscriminate applications for such orders.[158] The second matter overlooked concerns the court’s examination of the balance of convenience. This is a vital second stage. It is important to remember that at this stage a major disagreement between Kirby and Callinan JJ is evident.
Perhaps Gleeson CJ, Gaudron, Gummow and Hayne JJ found that there was not a serious issue to be tried. That would be consistent with the decision of Megarry V-C who considered ‘an honest but virtually hopeless claim’ should not receive an interlocutory injunction ‘just because it cannot be described as being “frivolous or vexatious” in the accepted sense’.[159] However, if this interpretation is accepted, it must be recognised that there has effectively been a return to a modified prima facie test.
Other jurisdictions have adopted differing approaches to the issue of interlocutory injunctions. According to Dobbs, there are three approaches to the manner in which factors are taken into account when issuing an interlocutory injunction in the US. The first approach utilises unstructured factors, including: (1) whether the applicant has displayed a strong or substantial probability of success on the merits; (2) whether the applicant has shown irreparable harm to itself; (3) whether the preliminary injunction could harm third parties; and (4) whether the public interest would be served by issuing the preliminary injunction.[160] The weight given to these factors is at the judge’s discretion:
The unstructured list invites the judge to exercise her conscience but it does not suggest any particular analysis or reasoning. In particular, the unstructured list does not suggest anything about the relative importance of the irreparable harm as compared to the plaintiff’s chance of winning on the merits.[161]
The second approach utilises structured factors and articulates that ‘even the plaintiff who is not very likely to prevail on the merits, may be faced with such irreparable loss that the preliminary injunction should go.’[162] This requires the plaintiff to show: (1) irreparable; harm and (2) either (a) probable success on the merits; or (b) a balance of hardships tipping in the plaintiff’s favour and a serious question on the merits.[163]
The third approach identified by Dobbs is known as the ‘Leubsdorf rationale and reformulation’.[164] Under this approach, the judge estimates the irreparable loss that would result to each party if the preliminary injunction were either erroneously granted or erroneously denied. The party’s chance of winning at the permanent stage is then estimated. The first estimate is discounted to reflect each party’s probability of success on the merits. If the plaintiff’s discounted irreparable harm is greater than that of the defendant, then the preliminary injunction is granted. Under this system, a plaintiff might be given a preliminary injunction even if the judge thought that the plaintiff had a less than 50 per cent chance of success on the merits if the plaintiff had an enormous irreparable loss at stake while the defendant had little or none.
In Attorney General of Manitoba v Metropolitan Stores (MTS) Ltd,[165] a three-stage test was outlined by Beetz J for the award of an interlocutory injunction in Canada: (1) a serious question to be tried; (2) irreparable harm to the plaintiff not capable of being compensated by an award of damages; and (3) the balance of convenience — ‘a determination of which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory injunction’.[166]
Gleeson CJ, Gaudron, Gummow and Hayne JJ seem to confuse their role. Basically their Honours were deciding whether the cause of action existed. They decided that as there was no cause of action, there could be no interlocutory injunction. But this is not what an appellate court should have done. The court at first instance should have been examining whether there was a ‘serious issue to be tried’; this is what Gleeson CJ, Gaudron, Gummow and Hayne JJ should have been examining. Arguably, the cause of action did not exist when the court of first instance considered the matter. However, the issue before the High Court was whether an interlocutory injunction should have been awarded.
Interlocutory relief is obviously different in nature to final relief. Indeed, Tilbury places the interlocutory injunction under the chapter heading of ‘Urgent Relief’ in his text.[167] However, Gleeson CJ, Gaudron, Gummow and Hayne JJ do not appear to appreciate this distinction.
It is interesting to speculate why the Beecham prima facie test was resurrected by their Honours. Hammond has suggested that the prima facie test was created to unburden an overloaded civil litigation system.[168] He opined that
[c]ounsel began to use the interlocutory injunction as a means of providing a rapid and relatively cheap method of arbitration of disputes. A motion was filed, often by arrangement with the other party, when a dispute arose. Affidavits in support and opposition would be filed; and since the court had to decide whether a prima facie ... case had been made out, in effect a preliminary trial was gained. More often than not, the defendant, having got an indication of the judges’ views, simply abided by the result.[169]
The return of a version of the prima facie test means that the role of interlocutory relief is minimised. This is a major development of the law, as it means the recasting of a whole facet of the legal system. In the US, an interlocutory injunction is preliminary to a hearing on the merits. Its purpose is to prevent a threatened wrong or injury to property or rights until the matter can be determined at the full hearing:
The status quo preserved by a preliminary injunction is the last actual, peaceable, non contested status that preceded the pending controversy, as distinguished from a status suddenly or secretly created by the alleged wrongdoer before the bringing of the suit.[170]
The characteristics of an interlocutory injunction in Canada are the speed of application (they can be obtained at any time of the day), the right to apply ex parte and the possibility of the grant in advance of any final determination of the dispute.[171] The interlocutory injunction is an urgent order protecting rights or property that are threatened with irreparable harm in the time before a proper hearing can take place. As cases such as Greystone Capital Management Inc v Greystone Properties Ltd[172] clearly indicate, the interlocutory injunction cannot be used as a quick way to get a final determination.
Although the reason for the return of a version of the prima facie test is open to question, its return will certainly pose difficulties for further developments in the law, as Lenah has shown.
The approach adopted by Gleeson CJ, Gaudron, Gummow and Hayne JJ does not clearly indicate how interlocutory injunctions work in conjunction with the media or modern-day realities. Certainly the judgment of Kirby J was alive to the issue of the speed of today’s media and his Honour utilises the flexibility of equitable remedies to cope with this reality:
The power of modern media, so important for the freedoms enjoyed in Australia, can sometimes be abused. When that happens, the courts are often the only institutions in our society with the power and the will to provide protection and redress to those who are gravely harmed. Apart from the other cases where a cause of action can be shown to sustain the grant of an interlocutory injunction, in my view a court, such as the [Tasmanian] Supreme Court, has the statutory power to grant an injunction to restrain the use of information which has been obtained by a trespasser or by some other illegal, tortious, surreptitious or improper means where the use of such information would be unconscionable.[173]
The failure of the majority to appreciate fully the realities of the modern media is consistent with the resurrection of a version of the prima facie test.[174] In the US the test pronounced by Leubsdorf would be the most sensitive to the media context, as it allows for a plaintiff who faces enormous irreparable harm, but who has a lesser chance to obtain an interlocutory injunction on the merits of the case.
The judgments of Gleeson CJ, Gaudron, Gummow and Hayne JJ divorce the ‘true injunction’ from ‘other injunctions’.[175] Perhaps Gaudron J put it most
clearly when her Honour stated:
In recent times, the word ‘injunction’ has come to be used to mean any order by which a court commands a person to do or refrain from doing some particular act. Thus, it has come to be used in connection with orders of that kind that are specifically authorised by statute. It has also been used to describe orders which a court makes to protect its own processes such as an asset preservation order (sometimes called a ‘Mareva injunction’) and some anti-suit injunctions.[176]
For some time the High Court has been creating a distinction[177] between injunctions in the true sense (‘true injunctions’)[178] and other judicial orders that are merely called ‘other injunctions’.[179] This distinction did not seem to influence Gaudron J.[180] However, the existence of these two varieties was crucial in the reasoning of Gummow and Hayne JJ. While LGM placed a great deal of importance upon comments by the House of Lords in South Carolina Insurance Co v Assurantie Maatschappij ‘De Zeven Provincien’ NV[181] concerning the role of interlocutory injunctions, their Honours held that the English courts had failed to appreciate the fact that these two varieties of injunctions existed.[182] Consequently, South Carolina Insurance was dismissed as it concerned the second variety of injunction, whereas Lenah involved a true injunction.[183]
The most recent US statement on Mareva injunctions is Grupo Mexicano de Desarrollo SA v Alliance Bond Fund, Inc,[184] which decided that a Mareva injunction is not an interlocutory injunction in terms of the traditional equitable jurisdiction. Mareva injunctions are covered in the Canadian texts under the broader heading of interlocutory injunctions, as are Anton Piller orders and anti-suit injunctions. There does not appear to be a separate ‘true’ injunction in Canada.
The usefulness of the injunction in Australia is limited by the decision in Lenah. According to Dobbs, Owen Fiss argues that in the US there exist structural injunctions, which attempt
to remodel an existing social or political institution to bring it into conformity with constitutional demands. ... restructuring injunctions are typically complex and invasive. They are likely to involve the judge in tasks traditionally considered as non-judicial, that is, less about rights and duties and more about management.[185]
These injunctions are used ‘only as public law remedies for serious and pervasive rights violations’[186] as seen in the famous case of Brown v Board of Education of Topeka, Kansas.[187] It could certainly be argued that structural injunctions are not a positive development and that a middle path exists between the majority approach adopted in Lenah and structural injunctions. This would allow interlocutory injunctions to retain their traditional role of maintaining the status quo.
The origins of s 11 of the Supreme Court Civil Procedure Act 1932 (Tas) can be found in the Judicature Acts[188] in England. Equivalent sections can be found in all Australian jurisdictions.[189] Sub-section 12 of s 11 is the statement that a court can order an interlocutory injunction if it is ‘just and convenient that such order should be made’.[190] According to the majority, this section does not expand the power of the court to award such relief. Gummow and Hayne JJ held that s 11 ‘did not confer on the court power to make an order on the application of LGM other than in protection of some legal or equitable right of LGM which the court might enforce by final judgment.’[191]
However, Kirby J strongly disagreed with this limiting of the section. His Honour held that
it is an oft repeated mistake of lawyers to gloss statutory language with presuppositions derived from pre-existing law. Every court, but particularly a court within the Australian judicature established under the Constitution, must obey, and give full effect to, valid Australian legislation understood according to its terms. This is the starting point for a consideration of the power of the Supreme Court. With respect, it is erroneous to start with Chancery practice, the history of injunctions, or observations of English judges on those subjects. It is equally erroneous to start with the opinions of local judges who have not begun the ‘elucidations’ of their relevant powers, as they should, with the terms of the statute by which those powers are granted.[192]
Such a reading of the section would give the courts much greater power to award the interlocutory injunction. This expansion of the role of the interlocutory injunction would seem to be sensible but the approach of the majority curtails this.
Following Lenah, Australian courts seem to be reverting to a more conservative approach when compared with the US and Canada. The emphasis on a cause of action, rather than a focus on irreparable harm,[193] appears to be a return to a version of the prima facie test in Beecham.[194] The US and Canadian concern with irreparable harm and the balance of convenience allows for judicial discretion in more complex cases. The fast moving context of the media requires consideration of complex matters where the prima facie test is not adequate to give a remedy tailored to the situation. The serious issue to be tried, paired with irreparable harm and the balance of convenience, seems a more sensible approach in a society where the influence of the media and invasion of privacy are becoming more common.
It is clear that the High Court was wrong to refuse an injunction in Lenah. An interlocutory injunction should have been granted, at the very least, to preserve the status quo if there is a prima facie case — although it was argued above that the American Cyanamid test of a ‘serious issue to be tried’ is preferable. As was shown earlier, there was a very good prima facie case on the facts having regard to the most recent case law. Lenah, therefore, is a most unsatisfactory decision in this respect. Its principal redeeming feature is the lack of certainty in some areas of the law caused by the lack of a joint judgment, which at least means that certain incorrect principles of law laid down in the individual judgments are not binding on any courts at all.
GREG TAYLOR[*] AND DAVID WRIGHT[†]
[*] (2001) 185 ALR 1 (‘Lenah’).
[1] ABC Television, ‘Video Raises Questions over Possum Abattoir Practices’, The 7.30 Report, 4 May 1999 <http://www.abc.net.au/7.30/stories/s23927.htm> at 1 October 2002.
[2] Lenah Game Meats Pty Ltd v Australian Broadcasting Corporation [1999] TASSC 114; (1999) 9 Tas R 355 (Wright and Evans JJ; Slicer J dissenting).
[3] See Greg Taylor, ‘Why Is There No Common Law Right of Privacy?’ [2000] MonashULawRw 10; (2000) 26 Monash University Law Review 235. Privacy was not argued as an independent cause of action until Lenah reached the High Court, which explains why the hypothesis was not tested earlier: see Lenah (2001) 185 ALR 1, 21, 23 (Gummow and Hayne JJ), 41 (Kirby J).
[4] Gummow J, Hayne J, Kirby J and Gaudron J.
[5] Gleeson CJ (the doubter) and Callinan J (the possible convert).
[6] Lenah (2001) 185 ALR 1, 17 (Gaudron J).
[7] Ibid 38 (citation omitted) (Gummow and Hayne JJ).
[8] [1932] AC 562.
[9] Lenah (2001) 185 ALR 1, 38.
[10] Ibid.
[11] Ibid 32.
[12] [1984] HCA 73; (1984) 156 CLR 414 (‘Moorgate’).
[13] See International News Service v Associated Press, [1918] USSC 191; 248 US 215 (2nd Cir, 1918).
[14] See, eg, Mabo v Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1.
[15] For a description of the development of a tort of invasion of privacy in the US see Taylor, above n 3, 256–62.
[16] Lenah (2001) 185 ALR 1, 32. See further at 37–8.
[17] Cf Sullivan v Sclanders [2000] SASC 273; (2000) 77 SASR 419, 426 (Gray J) (‘Sullivan’).
[18] The reasons for this are explained in David Anderson, ‘The Failure of American Privacy Law’ in Basil Markesinis (ed), Protecting Privacy (1999) 139, 150–3.
[19] See, eg, Privacy Act 1988 (Cth) (see also Lenah (2001) 185 ALR 1, 30); Surveillance Devices Act 1999 (Vic); Surveillance Devices Act 1998 (WA); Health Records (Privacy and Access) Act 1997 (ACT). On the failure of the Privacy Bill 1974 (SA), see Don Dunstan, Felicia: The Political Memoirs of Don Dunstan (1981) 222; ‘The South Australian Privacy Bill 1974’ (1974) 48 Australian Law Journal 457; John Hurst and Sally White, Ethics and the Australian News Media (1994) 121; Law Reform Committee of South Australia, Interim Report of the Law Reform Committee of South Australia to the Attorney-General Regarding the Law of Privacy (1973).
[20] [1984] HCA 73; (1984) 156 CLR 414, 445.
[21] See below Part III.
[22] Lenah (2001) 185 ALR 1, 55.
[23] [1937] HCA 45; (1937) 58 CLR 479 (‘Victoria Park’).
[24] See Lenah (2001) 185 ALR 1, 12 (Gleeson CJ) (a tort of privacy would be a departure from authority), 31 (Gummow and Hayne JJ) (Victoria Park does not stand in the way), 54–5 (Kirby J) (Victoria Park has produced a common understanding of the legal position, even though that may be reading into it more than it can bear), 91 (Callinan J) (Victoria Park is distinguishable). It will be suggested in Part II(D) below that Victoria Park is indeed distinguishable, but this does not mean that the other opinions are necessarily wrong.
[25] See Transcript of Proceedings, Lenah (High Court of Australia, Gleeson CJ, Gaudron, Gummow, Kirby, Hayne and Callinan JJ, 3 April 2001).
[26] Lenah (2001) 185 ALR 1, 55.
[27] See Australian Law Reform Commission, Privacy, Report No 22 (1983). Justice Kirby was Chairman of the Commission at the time.
[28] Lenah (2001) 185 ALR 1, 13.
[29] Ibid 89.
[30] Ibid 95.
[31] See the interesting and occasionally amusing analysis: ibid 71–80.
[32] [1994] HCA 46; (1994) 182 CLR 104 (‘Theophanous’). It is interesting to compare Deane J’s judgment in Theophanous with Kirby J’s judgment in Lenah (2001) 185 ALR 1, 58–9.
[33] A good example of the dangers posed by Deane J’s approach is found in Ocala Star-Banner Co v Damron, [1971] USSC 33; 401 US 295 (Fla, 1971) (‘Ocala’). See further Charles Black, ‘The Supreme Court 1966 Term’ (1967) 81 Harvard Law Review 69, 165; Michael Chesterman, ‘The Money or the Truth: Defamation Reform in Australia and the USA’ [1995] UNSWLawJl 16; (1995) 18 University of New South Wales Law Journal 300, 307; John Tobin, ‘The United States Public Figure Test: Should It Be Introduced into Australia?’ [1994] UNSWLawJl 14; (1994) 17 University of New South Wales Law Journal 383, 392–6; J Skelly Wright, ‘Defamation, Privacy, and the Public’s Right to Know: A National Problem and a New Approach’ (1968) 46 Texas Law Review 630, 641. For the Supreme Court’s reaction to this criticism, see St Amant v Thompson, [1968] USSC 79; 390 US 727, 731–3 (1968) (White J).
[34] See, eg, Pavesich v New England Life Ins Co, 50 SE 68 (Ga, 1905).
[35] The story of the development of a right of privacy in Germany, together with a comparison with the development in the US and Australia, may be found in Taylor, above n 3, 247–56, 265–74.
[36] For the German law, see Basic Law of the Federal Republic of Germany arts 1 and 2, the latter of which promises a right of ‘free development of [the] personality’. In the US, note a right to the ‘pursuit of happiness’ and similar phrases in the Declaration of Independence (US, 1776) [2]. In the US, courts also employ natural law reasoning.
[37] See Douglas v Hello! Ltd [2000] EWCA Civ 353; [2001] QB 967, 984, 997–1003 (Sedley LJ) (‘Douglas’); Venables v News Group Newspapers Ltd [2001] Fam 430, 461–4 (Butler-Sloss P) (‘Venables’). No attempt is made here to provide a complete list of the growing case law in England. On 14 October 2002, the Englsih Court of Appeal handed down its decision in Campbell v MGN Ltd [2002] EWCA Civ 1373. There was, however, insufficient time to take account of this development here.
[38] Lenah (2001) 185 ALR 1, 13.
[39] As, indeed, was the argument for a public law right of privacy in Carbone v Police [1997] SASC 6088; (1997) 68 SASR 200.
[40] For ease of expression, a minor inaccuracy is present here: breach of confidence, being an equitable principle rather than a legal rule, is not strictly a cause of action. No full-scale attempt is made here to differentiate between equitable and legal possibilities of developing the law, although see Lenah (2001) 185 ALR 1, 103–4 (Callinan J), some of which might be relevant in the consideration of whether any right of privacy should be governed by strict rules or discretionary approaches. One aspect of this is dealt with in below Part IV.
[41] For cases after that statute came into force, see above n 37.
[42] In several recent cases, the authors have gained the impression that some barristers are of the view that the Court is still prepared to be as bold and unorthodox as it was in some cases in the early to mid-90s.
[43] Lenah (2001) 185 ALR 1, 10, 11 (Gleeson CJ). Cf 65 (Callinan J).
[44] Ibid 10 (Gleeson CJ).
[45] And apparently still in the US: see Anderson, above n 18, 166.
[46] See, eg, cases involving medical treatment (Slater v Bissett (1986) 69 ACTR 25, 28–30 (Kelly J); In re C (A Minor) (Wardship: Medical Treatment) (No 2) [1990] Fam 39, 48 (Lord Donaldson MR), 55 (Nicholls LJ)); a case involving pharmaceuticals (R v Department of Health; Ex parte Source Informatics Ltd [2001] QB 424); and cases involving banks (Winterton Constructions Pty Ltd v Hambros Australia Ltd [1992] FCA 582; (1992) 39 FCR 97, 114 (Hill J); Federal Commissioner of Taxation v Australia and New Zealand Banking Group Ltd (1979) 143 CLR 499, 521–3 (Gibbs ACJ), 532 (Mason J); Christofi v Barclays Bank [2000] 1 WLR 937).
[47] Sullivan [2000] SASC 273; (2000) 77 SASR 419, 427 (Gray J).
[48] [1967] 1 Ch 302 (‘Argyll’).
[49] Gavin Phillipson and Helen Fenwick, ‘Breach of Confidence as a Privacy Remedy in the Human Rights Act Era’ (2000) 63 Modern Law Review 660, 671 (emphasis in original). Note, too, the similar views expressed since the publication of that article: Venables [2001] Fam 430, 462 (Butler-Sloss P); A v B [2001] 2 All ER 545 and Campbell v Mirror Group Newspapers Ltd [2002] EWHC 499; (2002) 54 IPR 645. See further the reference, above n 37, to the Court of Appeal’s decision in Campbell v MGN Ltd [2002] EWCA Civ 1373. It is interesting to note that the article by Phillipson and Fenwick was mentioned during argument in Lenah, but this point appears to have been missed: Transcript of Proceedings, Lenah (High Court of Australia, Gleeson CJ, Gaudron, Gummow, Kirby, Hayne, and Callinan JJ, 3 April 2001).
[50] [1988] Ch 449. For the most recent English authority in the area of sexual relationships, see A v B [2001] 2 All ER 545. Note the Court of Appeal’s reference to Lenah (2001) 185 ALR 1, 13 (Gleeson CJ): at 553.
[51] Francome v Mirror Group Newspapers Ltd [1984] 1 WLR 892.
[52] X v Y [1988] 2 All ER 648.
[53] Phillipson and Fenwick, above n 49, 671; cf Gerald Dworkin, ‘The Common Law Protection of Privacy’ [1967] UTasLawRw 4; (1967) 2 University of Tasmania Law Review 418, 440–5. See further Campbell v MGN Ltd [2002] EWCA Civ 1373, [70] (Lord Phillips MR).
[54] See, eg, Lord Ashburton v Pape [1913] UKLawRpCh 80; [1913] 2 Ch 469, 475 (Swinfen Eady LJ).
[55] The example is taken from A-G v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, 281 (Lord Goff). See also Hellewell v Chief Constable of Derbyshire [1995] 1 WLR 804, 807 (Laws J).
[56] Stephens v Avery [1988] Ch 449.
[57] At least it will be reasonable in the general run of cases, which again illustrates the point made here: cf In the Marriage of Gibb [1979] 5 Fam LR 694, 702, 704 (Baker J).
[58] This is, for example, the first part of the first of the five-part test in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266, 283 (Lord Simon, Viscount Dilhorne and Lord Keith).
[59] Lenah (2001) 185 ALR 1, 84–5, 86, 89. Gleeson CJ mentions English law briefly (at 11) but does not deal in any detail with the development of the law outlined by the present authors in the previous paragraph.
[60] Ibid 12. See also: at 16 (Gleeson CJ).
[61] Ibid 10 (Gleeson CJ).
[63] [1988] Ch 449, 454 (Browne-Wilkinson V-C).
[64] Cf Anderson, above n 18, 150.
[65] See Lenah (2001) 185 ALR 1, 9 (Gleeson CJ).
[66] Cf ibid 80–1 (Callinan J).
[67] See Anderson, above n 18.
[68] Ibid 153–8.
[69] Lenah (2001) 185 ALR 1, 14 (Gleeson CJ).
[70] There are at least two very recent English authorities to this effect: Douglas [2000] EWCA Civ 353; [2001] QB 967, 1011 (Keene LJ); Campbell v Mirror Group Newspapers Ltd [2002] EWHC 499; (2002) 54 IPR 645, 652–4 (Morland J). See the reference, above n 37, to the appeal in Campbell v MGN Ltd [2002] EWCA Civ 1373.
[71] See Douglas [2000] EWCA Civ 353; [2001] QB 967, 1000 (Sedley LJ).
[72] Commonwealth v John Fairfax & Sons Ltd [1980] HCA 44; (1980) 147 CLR 39, 51 (Mason J).
[73] Foster v Mountford (1976) 14 ALR 71; G v Day [1982] 1 NSWLR 24; Falconer v Australian Broadcasting Corporation [1992] VicRp 47; [1992] 1 VR 662; Sullivan [2000] SASC 273; (2000) 77 SASR 419 (Sullivan might be distinguishable on other factual bases, but the documents concerned were surreptitiously obtained). See also the references quoted by Callinan J in Lenah (2001) 185 ALR 1, 86
fnn 403–4. Another example is Donnelly v Amalgamated Television Services Pty Ltd (1988) 45 NSWLR 570 (‘Donnelly’). This case is distinguished in Lenah by Gleeson CJ (at 16), and Gummow and Hayne JJ (at 30) on the basis that broadcasting the tape in that case might well have involved knowing participation by the broadcaster in a trespass or abuse of coercive powers. There was no abuse of coercive powers in Lenah, but there was almost certainly a trespass. This distinction collapses, for Lenah was a worse case than in Donnelly where the police presumably did not enter with the intention of providing material to a broadcaster. And surely in Donnelly the participation by the broadcaster consisted of the simple act of broadcasting with knowledge of the breach of the law — as was the case in Lenah: see Lenah (2001) 185 ALR 1, 52, 53 (Kirby J), 87–9 (Callinan J).
[74] Although a more far-reaching view, based in part on the Human Rights Act 1998 (UK) c 42, was expressed in Douglas [2000] EWCA Civ 353; [2001] QB 967, 1001.
[75] There is no reason why even lower courts should not take this view (perhaps more circumspectly than is done here, however), given that the High Court has failed to say anything about the applicability of a particular cause of action or the development of the law rather than basing its ratio on ignorance of a statute or case. Indeed, it might be argued that the former case is not really one of per incuriam at all.
[76] In Lenah, Kirby J briefly cites three cases involving intrusions on the privacy of corporations dealt with under existing law: Lenah (2001) 185 ALR 1, 38, 50–1. As his Honour pointed out in argument, Victoria Park was another case involving a corporation, in which it was not suggested that the status of the plaintiff as a corporation was ‘an easy “knock-out” point’ in favour of the defendants: Transcript of Proceedings, Lenah (High Court of Australia, Gleeson CJ, Gaudron, Gummow, Kirby, Hayne, and Callinan JJ, 3 April 2001). See also Sullivan [2000] SASC 273; (2000) 77 SASR 419.
[77] Lenah (2001) 185 ALR 1, 38.
[78] Restatement of the Law Second, Torts (1977) s 652I (‘Restatement’).
[79] Lenah (2001) 185 ALR 1, 22, 37.
[80] Ibid 22, 31, 32.
[81] Ibid 13.
[82] Ibid 55–6.
[83] Ibid 89.
[84] Ibid 93–4.
[85] Ibid 94.
[86] Ballina Shire Council v Ringland (1994) 33 NSWLR 680, following Derbyshire County Council v Times Newspapers Ltd [1992] UKHL 6; [1993] AC 534.
[87] Goldsmith v Bhoyrul [1998] QB 459 (if applied in Australia).
[88] And in other areas of law which serve to protect privacy, such as trespass, passing off and nuisance.
[89] This point was recognised by Kirby J in argument in Lenah (2001) 185 ALR 1.
[90] Some jurisdictions in Australia require a defendant pleading justification (ie truth) to establish further matters in the nature of public interest in publication, eg Defamation Act 1974 (NSW) s 15. Such statutes have a privacy-protecting function or effect of which corporations can also take advantage.
[91] True statements might also injure a corporation’s good name, eg, if its accounts were published.
[92] Lenah (2001) 185 ALR 1, 37.
[93] Restatement (1977) s 652I.
[94] See also R v Broadcasting Standards Commission; Ex parte British Broadcasting Corporation [2000] EWCA 59; [2001] QB 885. Although this case did not involve the common law, it does show that there is nothing inherent in privacy which prevents it from protecting corporations in some areas.
[95] Socialist Workers Party v Attorney General of United States, 463 F Supp 515, 524 (DCNY, 1978).
[96] Lenah (2001) 185 ALR 1, 37–8.
[97] 515 SE 2nd 370 (Ga, 1999).
[98] [1993] HCA 74; (1993) 178 CLR 477.
[99] Corporations are likely to be the main target of hackers and a principal target of the media.
[100] Cf Lenah [2001] HCA 70; (2001) 185 ALR 152, 87–8 (Callinan J).
[101] See also ibid 13–14 (Gleeson CJ).
[102] Cf Sullivan [2000] SASC 273; (2000) 77 SASR 419. Some existing protection is provided with regard to bank records, including those belonging to corporations (see above n 46). Thus the same difficulty would arise if a general tort of privacy invasion were recognised excepting corporations: has the protection given to corporations evaporated?
[103] As is well known, there is no ‘United States common law’, so it may be that, if the issue were to be dealt with in all States, it might be found that the common law would vary from State to State.
[104] Basil Markesinis, ‘Privacy, Freedom of Expression and the Horizontal Effect of the Human Rights Bill: Lessons from Germany’ (1999) 115 Law Quarterly Review 47, 61–3, provides a brief discussion of the difference between US law and German law in this respect. For examples of the injustices that can be produced by the US approach, see The Florida Star v BJF, [1989] USSC 123; 491 US 524 (Fla, 1989); Ocala[1971] USSC 33; , 401 US 295 (Fla, 1971). Other valuable discussions may be found in Melville Nimmer, ‘The Right to Speak from Times to Time: First Amendment Theory Applied to Libel and Misapplied to Privacy’ (1968) 56 California Law Review 935; Adrienne Stone, ‘The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication’ [1999] MelbULawRw 26; (1999) 23 Melbourne University Law Review 668, 687–91, 694–6.
[105] [1937] HCA 45; (1937) 58 CLR 479.
[106] This point was noted by Hayne J in argument, but curiously was not taken up in his Honour’s reasons.
[107] Étienne Picard, ‘The Right to Privacy in French Law’ in Basil Markesinis (ed), Protecting Privacy (1999) 49, 82–3.
[108] See the list of examples given by Guido Alpa, ‘The Protection of Privacy in Italian Law’ in Basil Markesinis (ed), Protecting Privacy (1999) 105.
[109] No quarrel is sought here with the recognition that, in the public sphere, the law may need to wear ‘different spectacles’: see Lenah (2001) 185 ALR 1, 39 (Gummow and Hayne JJ), 52–3 (Kirby J). However, the point is that not all corporations exist for profit, including public corporations. That being so, a denial of privacy to corporations on the grounds that they exist for economic reasons only will not do. Some corporations exist primarily to serve the public.
[110] For a recent US case involving the privacy of a university, see Felsher v University of Evansville, 727 NE 2d 783, 787 (Ind Ct App, 2000).
[111] The US case in which the right of an association to privacy was affirmed involved a political party: see Socialist Workers Party v Attorney General of United States, 463 F Supp 515 (DCNY, 1978).
[112] (1994) Neue Juristische Wochenschrift 1784. A ‘panel’ is similar in function to the High Court of Australia constituted by two or three justices for the purpose of hearing applications for special leave to appeal.
[113] Ibid 1281.
[114] This phrase in the original (‘soziale[r] Geltungsanspruch als Wirtschaftsunternehmen’: ibid 1784) is difficult to translate verbatim.
[115] Eg Johannes Hager, ‘Schutz einer Handelsgesellschaft gegen die Analyse ihrer Jahresabschlüsse im Lichte der Grundrechte’ ZHR (Zeitschrift für das gesamte Handelsrecht und Wirtschaftsrecht) 158 (1994) 675, with further references.
[116] The main argument made is that the firm’s accounts had been published and that they were disseminated to a fairly small group of people for the generally acceptable aim of education.
[117] (2000) Neue Juristische Wochenschrift 2210.
[118] Anderson, above n 18, 144.
[119] The equivalent of a Court of Appeal for the State of Berlin.
[120] (2000) Neue Juristische Wochenschrift 2210.
[121] (1996) Neue Juristische Wochenschrift 2210, 2515.
[122] (1984) 66 BVerfGE 116.
[123] The legal basis for granting this was the Basic Law for the Federal Republic of Germany art 5(1)(ii), rather than any general privacy provision, but it is clearly an example of privacy protection for a corporation.
[124] (1998) Neue Juristische Wochenschrift-Rechtsprechungs-Report 1175.
[125] To ensure that the problem is not avoided by permitting the cardinals to sue personally, we also assume that they are not identifiable.
[126] Recent examples include [1992–93] AfP 78 (camera team bursting into a legal office); (1999) 138 BGHZ 311 (interview with dissatisfied customers of a travel firm on the latter’s property — held justified); (1998) Neue Juristische Wochenschrift-Rechtsprechungs-Report 1480 (faked satellite impact taken up by newspaper as real news).
[127] This case note is not concerned with this broader question. See, however, Lenah (2001) 185 ALR 1, 54–5 (Kirby J).
[128] ‘Where there is a right, there is a remedy’: Peter Nygh and Peter Butt (eds), Butterworths Australian Legal Dictionary (1997) 1203.
[129] Lenah (2001) 185 ALR 1, 5.
[130] Ibid.
[131] Ibid 17–18.
[132] Ibid 25 (citations omitted).
[133] (1999) 198 CLR 380 (‘Cardile’).
[134] Lenah (2001) 185 ALR 1, 44–5.
[135] Ibid 45. For Kirby J, every court ‘must obey, and give full effect to, valid Australian legislation understood according to its terms ... it is erroneous to start with Chancery practice, the history of injunctions, or observations of English judges on those subjects.’ In addition, Kirby J considered it is ‘equally erroneous to start with the opinions of local judges who have not begun the “elucidations” of their relevant powers, as they should, with the terms of the statute by which those powers are granted.’ Further, it should be noted that an observation in Cardile (1999) 198 CLR 380, 395–6 (Gaudron, McHugh, Gummow and Callinan JJ) was heavily relied on by Gleeson CJ, Gaudron, Gummow and Hayne JJ in Lenah, but Callinan J convincingly explained why the observation in Cardile did not apply: Lenah (2001) 185 ALR 1, 81–3.
[136] That is, where, as here, the powers are conferred in broad terms on a court by Parliament, it is contrary to basic principle to restrict such powers to closed categories.
[137] That is, inflexible rules are contrary to basic equitable principles.
[138] That is, the urgent nature of interlocutory injunctions.
[139] See Michael J Tilbury, Civil Remedies (1990) vol 1, [1005].
[140] American Jurisprudence 2d (2000) vol 42, 564–6.
[141] [1975] UKHL 1; [1975] AC 396 (‘American Cyanamid’).
[142] Jeffrey Berryman et al, Remedies: Cases and Materials (3rd ed, 1997) 748–78.
[143] (1968) 118 CLR 618 (‘Beecham’).
[144] The original prima facie test required the plaintiff to demonstrate a greater than 50 per cent probability of success, whereas the American Cyanamid test requires the plaintiff to show a greater than zero per cent probability of success.
[145] [1986] HCA 58; (1986) 161 CLR 148. The High Court referred to a ‘triable issue’ in Murphy v Lush [1986] HCA 37; (1986) 65 ALR 651, 655 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ).
[146] Recent High Court authority on interlocutory injunctions instead favours a two-stage test (these two stages are the ‘serious question to be tried’ and the balance of convenience): see, eg, Patrick Stevedores Operations (No 2) Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1, 24 (Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ), 60 (Gaudron J), 86 (Callinan J) (‘Patrick Stevedores’); Fejo v Northern Territory of Australia [1998] HCA 58; (1998) 195 CLR 96, 125–6 (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ), 141 (Kirby J).
[147] [1975] UKHL 1; [1975] AC 396, 406–7 (Diplock LJ). See also Philip Morris (New Zealand) Ltd v Liggett & Myers Tobacco Co (New Zealand) Ltd [1977] 2 NZLR 35, 36 (White J); Hogan v Attorney General of Newfoundland (1998) 163 DLR (4th) 672, 684 (Marshall J).
[148] Henry Roach (Petroleum) Pty Ltd v Credit House (Vic) Pty Ltd [1976] VicRp 26; [1976] VR 309, 311 (Lush J); Sony Music Australia Ltd v Tansing (1993) 27 IPR 649, 652 (Lockhart J), 655–6 (French J).
[149] RJR-Macdonald Inc v Attorney General (Canada) (1994) 111 DLR (4th) 385, 402 (Sopinka and Cory JJ). ‘[T]he standard is not, generally, a high one’: Michael Tilbury, Michael Noone and Bruce Kercher, Remedies: Commentary and Materials (3rd ed, 2000) 650 fn 4.
[150] Tilbury, above n 139, [7015].
[151] Eg even where the validity of an Act is in question, an interlocutory injunction can still be issued: Richardson v Forestry Commission (1988) 164 CLR 261, 274–5 (Mason CJ).
[152] [1986] NZHC 216; [1986] 2 NZLR 716.
[153] Ibid 731–3.
[154] (1997) 39 IPR 283, 291.
[155] [1975] UKHL 1; [1975] AC 396, 407.
[157] Jill E Martin, Hanbury & Martin Modern Equity (15th ed, 1997) 754.
[158] Smith v Day (1882) 21 Ch D 421, 424.
[159] Mothercare Ltd v Robson Books Ltd (1979) 5 FSR 466, 473. Interestingly, Tilbury has stated that this decision cannot be supported as ‘the court is concerned only to weed out claims which are illusory’: Tilbury, above n 139, [7015].
[160] Dan B Dobbs, Law of Remedies: Damages, Equity, Restitution (2nd ed, 1993) vol 1, 253.
[161] Ibid 254.
[162] Ibid.
[163] Consolidated Gold Fields PLC v Minorco, SA, [1989] USCA2 371; 871 F 2d 252 (2nd Cir, 1989).
[164] Dobbs, above n 160, 255. This was introduced by John Leubsdorf, ‘The Standard for Preliminary Injunctions’ (1978) 91 Harvard Law Review 525, which received tacit approval by Hoffmann J in Films Rover International Ltd v Cannon Film Sales Ltd [1987] 1 WLR 670, 680.
[165] [1987] 1 SCR 110, 127–9.
[166] This whole equation was labelled the ‘tripartite test’ in Re David Hunt Farms Ltd and Minister of Agriculture (1994) 112 DLR (4th) 181, 185 (Robertson JA).
[167] Tilbury, above n 139, [7006]–[7024].
[168] R Grant Hammond, ‘Interlocutory Injunctions: Time for a New Model?’ (1980) 30 University of Toronto Law Journal 240.
[169] Ibid 251.
[170] American Jurisprudence 2d, above n 140, 565, 565 (citations omitted).
[171] Berryman et al, above n 142, 747.
[173] Lenah (2001) 185 ALR 1, 53.
[174] See Brodie v Singleton Shire Council [2001] HCA 29; (2001) 180 ALR 145 for how the High Court adapts established law to modern realities.
[175] It would appear that both varieties of injunctions are still remedies.
[176] Lenah (2001) 185 ALR 1, 17 (citations omitted).
[177] See, eg, Patrick Stevedores (1998) 195 CLR 1, 32–3 (Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ); Cardile (1999) 198 CLR 380, 399–401 (Gaudron, McHugh, Gummow and Callinan JJ); CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345, 391–2 (Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ).
[178] These have their origins in equity.
[179] These include Mareva, anti-suit injunctions and statutory injunctions, such as those found in the Trade Practices Act 1974 (Cth) s 44ZZD–G.
[180] Gaudron J did, however, recognise that these varieties may have different necessary elements and her Honour also recognised the continuing expansion of the operation of injunctions in public law. See Corporation of the Enfield City v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135, 157–8 (Gaudron J); Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11; (2000) 200 CLR 591, 628–9 (Gummow J); David Wright ‘The Role of Equitable Remedies in the Merging of Private and Public Law’ (2001) 12 Public Law Review 40.
[181] [1987] AC 24 (‘South Carolina Insurance’).
[182] Lenah (2001) 185 ALR 1, 27.
[183] It is noteworthy that other relevant decisions such as Lincoln Hunt Australia Pty Ltd v Willesee [1986] 4 NSWLR 457; Emcorp Pty Ltd v Australian Broadcasting Corporation [1988] 2 Qd R 169; Rindsale Pty Ltd v Australian Broadcasting Corporation [1993] Aust Torts Reports 81-231; Church of Scientology Inc v Transmedia Productions Pty Ltd [1987] Aust Torts Reports 80-101; and Donnelly v Amalgamated Television Services Pty Ltd [1998] 45 NSWLR 570 were disposed of with similar alacrity but not convincingly by Gummow and Hayne JJ: Lenah (2001) 185 ALR 1, 27.
[184] 527 US 308, 327–32 (NY, 1999).
[185] Dobbs, above n 160, 225. See, also, Owen Fiss, The Civil Right Injunction (1978).
[186] Dobbs, above n 160, 226.
[187] [1955] USSC 59; 349 US 294 (Kan, 1955).
[188] Supreme Court of Judicature Act 1873 (Imp) 36 & 37 Vict, c 66; Supreme Court of Judicature Act 1875 (Imp) 38 & 39 Vict, c 77.
[189] Australian Capital Territory Supreme Court Act 1933 (Cth) ss 18–25; Supreme Court Act 1970 (NSW) ss 57–64; Law Reform (Law and Equity) Act 1972 (NSW); Supreme Court Act 1979 (NT) ss 61–8; Judicature Act 1876 (Qld) ss 4–5; Supreme Court Act 1935 (SA) ss 20–8; Supreme Court Act 1986 (Vic) s 29; Supreme Court Act 1935 (WA) ss 24–5.
[190] Supreme Court Civil Procedure Act 1932 (Tas) s 11(12).
[191] Lenah (2001) 185 ALR 1, 30–1.
[192] Ibid 45 (citations omitted).
[193] See, eg, American Cyanamid [1975] UKHL 1; [1975] AC 396.
[*] BA (Hons), LLB (Hons) (Adel), LLM (Marburg), Doktor der Rechte (Marburg), Graduate Certificate in Legal Practice; Barrister and Solicitor of the Supreme Court of South Australia; Lecturer, Law School, The University of Adelaide. Greg Taylor wishes to acknowledge that his research and writing for this case note was supported by The University of Adelaide’s Small Research Grants Scheme.
[†] BEc, LLB (Hons) (Syd), LLM (UBC); Senior Lecturer, The University of Adelaide. David Wright would like to thank Ms Catherine Robson for her research assistance. Both authors would like to thank the anonymous referees for their comments. The text of this case note was completed in February 2002, before the appearance of any further commentary on the case discussed.
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