Gunning, Patrick --- "Whiskisoda Pty Ltd v HSV Channel Seven Pty Ltd" [1994] PrivLawPRpr 85; (1994) 1(6) Privacy Law & Policy Reporter 110

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Whiskisoda Pty Ltd v HSV Channel Seven Pty Ltd

Supreme Court of Victoria, McDonald J, 5 November 1993

Trespass - hidden television camera - injunction to prevent broadcast

The plaintiff, the occupier of the Santa Fe Gold hotel in Melbourne, offered lunchtime ''nude tabletop dancing'. A journalist and camera crew employed by the defendant (the broadcaster of the Real Life TV program) entered the hotel with a hidden camera and recorded some film depicting the nature of the performance and the presence of male customers. This footage was combined with interviews of a number of persons concerned with the impact of the activity on society in general and women working in the hospitality industry to comprise a story intended to be broadcast. The film did not disclose the facial appearance of the performers or the customers.

The plaintiff alleged that the journalists had ignored a sign which stated that no filming was permitted on the premises and had wilfully and intentionally trespassed. It was further alleged that the plaintiff would suffer irreparable damage were the story to be broadcast. The defendant contended that no sign prohibiting filming was displayed and that the identities of the individuals depicted in the hotel were suppressed.

Held, refusing to grant an interlocutory injunction:

1. The court has the power to grant an injunction to prevent publication of a film taken by a trespasser if a breach of confidence would result or if the circumstances are such that publication would be unconscionable (even if no confidentiality is involved) (Lincoln Hunt (Aust) Pty Ltd v Willessee (1986) 4 NSWLR 457, followed).
2. Although there was a serious issue to be determined in relation to whether the defendant had trespassed, the plaintiff had not established that, on the balance of convenience, the circumstances were such that an injunction should be issued. In particular, the plaintiff would not suffer irreparable damage for which payment of damages would be inadequate if the story were broadcast in the form exhibited to the court.

Comment

This case is the fourth case of its type to be decided in Australia since 1986. The first decision was that of Young J of the Supreme Court of NSW in the Willessee case. It has been followed in each subsequent case (two decisions of the Supreme Court of Queensland regarding the ABC's Investigators program and this decision). For discussion of the issues raised by these cases and ''foot in the door' journalism more generally see Handley RP, ''Trespass to land as a remedy for unlawful intrusion on privacy' (1988) 62 ALJ 216 and Hudson AH, ''Consumer protection, trespass and injunctions' (1988) 104 LQR 18.

Patrick Gunning