Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd H2/2000 [2001] HCATrans 128 (3 April 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Hobart No H2 of 2000

B e t w e e n -

AUSTRALIAN BROADCASTING CORPORATION

Appellant

and

LENAH GAME MEATS PTY LTD

Respondent

GLEESON CJ

GAUDRON J

GUMMOW J

KIRBY J

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT HOBART ON TUESDAY, 3 APRIL 2001, AT 9.30 AM

(Continued from 2/4/01)

Copyright in the High Court of Australia

MR TOBIN: If your Honours please, may I refer to a passage in Meagher, Gummow and Lehane, paragraph [2107], which is a discussion of "Equitable injunctions in the auxiliary jurisdiction" but which we also rely upon with regard to ultimately the issue of unconscionability. Paragraph [2107] refers to:

The second group of cases within this head of equitable jurisdiction is far more important: injunctions to restrain legal wrongs. It is not every infraction of a legal right or title which will attract the equitable jurisdiction to grant an injunction, but, over the centuries, a large and continually increasing list of legal rights was recognized as suitable for protection by means of an injunction granted by the courts of chancery. It was eventually established that, in order to succeed, a plaintiff would have to prove that he possessed some legal right; that that right was of a proprietary nature; that the right was either threatened or that the right had already been infringed and that the infringement was likely to be continued or repeated; and that damages would not be sufficient . . . These ingredients were, as will be seen, modified almost as soon as they were established . . . The first ingredient . . . simply means that a plaintiff cannot obtain an injunction in aid of a legal right unless he has a legal right. "It is an old mistake to suppose that, because there is no effectual remedy at law, there must be one in equity" . . . Lindley LJ. It is an even more fundamental mistake to suppose that an equity court will grant an injunction to prevent the doing of something which is, or may be thought to be, unjust, dishonourable or snide but which does not amount to any recognized legal or equitable wrong, and against which, as a consequence, a plaintiff has no remedy at law. This is neatly illustrated by the House of Lords decision in White v Mellin - - -

GLEESON CJ: Mr Tobin, I wondered whether you relied on a case - and I think the name of it is Mason v John Fairfax - years ago, in which a leaked document came into the possession of a publishing organisation and, as I recollect the case, and I have not read it recently, the basis on which injunctive relief was ultimately sought and granted was copyright, copyright in the document. If the argument against you is correct, as I would understand it, there would be no necessity to get anywhere near the copyright issues. You would simply say this document had been purloined.

MR TOBIN: Yes. In Commonwealth v John Fairfax, Justice Mason referred to the power to grant an equitable injunction to restrain publication, although if it is the case that your Honour - - -

GLEESON CJ: This the case I am thinking of because Mr Priestley was in it. It is Commonwealth v John Fairfax, yes.

MR TOBIN: Yes. Your Honour, I would understand that the publication of government material forms a separate category. Certainly Justice Mason - I am just trying to turn up the passage, your Honour - applied different criteria and your Honours will recollect in the Spycatcher Case, Attorney-General v Heinemann, when that issue was ventilated in the Court of Appeal proceedings in New South Wales, Justice McHugh referred to the category which covers governmental communications but these are separate. Justice Mason in the High Court in Commonwealth v John Fairfax said that public interest will be the only determining factor, that there is not appropriately an appeal to confidence with regard to government documents, so they could not proceed on the basis simply that these were purloined documents.

GLEESON CJ: But the fact that the entire case was decided with respect to issues of confidentiality and copyright involves a large assumption that I would have thought, if correct, operates in your favour.

MR TOBIN: It operates by the requirement of a cause of action.

GUMMOW J: Which is the point being made in the passage from Meagher, Gummow and Lehane that you have just read.

MR TOBIN: Yes, your Honour. The point that the authors make seems to us to be incontrovertible that - - -

KIRBY J: What is the source of the statutory power in the Supreme Court of Tasmania to grant the injunction?

MR TOBIN: It is referred to in our list of statutes, your Honour. It is the Civil Procedure Act. It is section 11(12).

KIRBY J: Where is that?

MR TOBIN: It is in the annexure - - -

KIRBY J: Yes, I have it. It is all right.

MR TOBIN: Yes. Your Honour will see it is a familiar introduction of the, I think, 1873 sections 23 and 24 from the Judicature Act in Britain into Tasmania. I think that is done in 1932 when the judicature system was introduced. Your Honour, the term "just and convenient" in section 11 of the Tasmanian statute is at one with the verbal formula used in the Judicature Act and which is familiar in the jurisprudence around those words. That is to say, that "just and convenient" does not invite, as it were, open slather with regard to remedies available to the court.

KIRBY J: But these categories have been introduced by judges in different times; they are not in the statute. The statute is conferring a power on a superior court. Normally that power would be given an ample construction.

MR TOBIN: The statute, your Honour, recognised the pre-existing equitable jurisdiction and it conferred that jurisdiction on the court.

KIRBY J: Where is that? It is referring to mandamus, which is the former prerogative jurisdiction. The section talks of mandamus and injunction, so it is not confined to equitable jurisdiction. Why should the statute be glossed to confine it to what the Courts of Chancery formerly developed? This is a conferral on an Australian court of a large jurisdiction.

MR TOBIN: It is the holding of this Court in Cardile's Case that "just and convenient" is to be read within the constraints of the developed judge-made law at the time of the Judicature Act and since.

GLEESON CJ: Well, you could apply it to the power to appoint a receiver. How would you know in what circumstances it is just and convenient to appoint a receiver?

KIRBY J: But what is - "just and convenient" may differ from decade to decade. To gloss the statute and to confine it to what was just and convenient in the 19th century in the Chancery Courts seems to me to be alien to the purpose of the power.

MR TOBIN: Your Honour, that is not in contest that the words "just and convenient" would be used that way but they operate adjectivally with regard to a body of pre-existing and developing law; they do not confer a new jurisdiction on the court. With respect, your Honour, that seems to us, on a reading of Cardile's Case and cases cited there, to be at this stage the finished or resolved determination of the Court.

KIRBY J: It is a question of whether that is part of the holding of the Court in that decision.

MR TOBIN: It is, with respect, your Honour, the judicial view of - - -

KIRBY J: I am just taking you back to the statute. People, especially at the Bar table, do not seem to like statutes. Sometimes it is useful to go back to the statute. The statute has nothing to say about these matters.

MR TOBIN: I accept that, your Honour. Meagher, Gummow and Lehane deal with the introduction of judicature in the early pages, I think 16 - - -

KIRBY J: Yes, but a lot of decisions were made in the last part of the 19th century about appeal. Appeal was then new and the judges were rather antipathetic to it.

MR TOBIN: Yes.

KIRBY J: Now, you just have to be careful that you do not pick up the baggage of centuries and import it through the Judicature Act of the United Kingdom into a statute of an Australian State to deal with the problems that vary from decade to decade. We have new problems now in a new country.

MR TOBIN: I accept what your Honour puts and the context in which the courts will develop the law is, of course, one of the issues before the Court in this case and what we rely upon in the discussion in "Equity: Doctrines and Remedies" is the constraint upon the creation of new causes of action - not the constraint upon it, the unavailability of that as a device other than where you - - -

KIRBY J: That is a different point. That is a point anterior. If you do not need to have the cause of action, then you are in a different realm of discourse. I can fully allow the power of your argument that, given the course of what has occurred, given Taylor's Case, given the statutes in New Zealand, in Manitoba and British Columbia, given the way it has developed, given the federal legislation in this country, that it would not be appropriate for this Court to develop a course of action in privacy at common law. I see the force of that. But, the question is whether when you grant a power to a superior court in terms of a power to grant an injunction which is "just and convenient", this is a statutory injunction and is not encumbered with the baggage of the centuries of the Courts of Chancery of England.

MR TOBIN: Well, your Honour - and I say this with, of course, all respect - we would contest what your Honour puts and it is our contention that the "just and convenient" wording which is taken from the Judicature Act is not constrained by British baggage but is constrained by Australian interpretation - - -

KIRBY J: Yes, but that is historical, you see. When it came in with the Judicature Act, it was natural for the judges of England at that time to bring with them their experience and knowledge and beliefs about what - - -

GUMMOW J: I think it happened the opposite because I think some of the English judges set up the Judicature Act and now it is open go. I think what happened then was it was pulled back and so I think history is actually the opposite.

MR TOBIN: Perhaps the ideals of Greek restraint are more to be seen here than in the English jurisdiction because, your Honours, the - - -

HAYNE J: And at base, the expression "just and convenient" has to be given some content other than the uninformed idiosyncratic view of a particular case.

MR TOBIN: Yes. Your Honours, the passage I was quoting from - I do not want to read too much to your Honours this morning, but it does pick up something that the then Mr Dyson Heydon said in Stein's "Locus Standi" and it reflects the same view. He said, "It is not enough that the plaintiff suffers damage nor that the defendant behaves dishonourably or inconveniently nor that the defendant's behaviour goes close being tortious or superficially resembles some tort without in fact being tortious, hence an injunction did not lie for" then he lists a number if items where injunctive relief was not granted. The authors then refer to Associated Newspapers Group v Insert Media which is on our list.

GUMMOW J: That is Lord Hoffmann's decision?

MR TOBIN: Yes, your Honour. It is a [1988] Ch where - - -

GUMMOW J: Well, he says what you have been saying.

MR TOBIN: He says what - - -

CALLINAN J: Mr Tobin, could I draw your attention to a passage in Taylor's Case, pages 509 and 510 in which Justice Dixon adopts something said by Justice Brandeis who in turn is adopting something said by another judge in the United States, but at the end of the first paragraph on page 510, the passage of which Justice Dixon is approving, seems to draw a clear distinction between interferences between cases in which there is simply an intrusion and cases in which there is an actual physical interference with property.

MR TOBIN: Yes.

CALLINAN J: Now, I know that the passage is dealing with the person who actually interferes, but it seems to me that there may be some significance in the distinction that has been drawn and that it is not a far leap to say, "Well, why should anybody derive any benefit from an unlawful physical interference" because just as Justice Dixon seems to be making it clear that a remedy would go against the person actually interfering.

MR TOBIN: Your Honours, in our submission, the outcome of this matter would be the same if the video camera had not been in the roof with a micro-fibre peeping through a hole.

CALLINAN J: The outcome against your client?

MR TOBIN: The outcome with regard to the legal basis upon which the injunction was granted because the contention behalf of the appellant is that the trespass is complete if the tort of trespass is that which is used to ground the injunctive relief. The tort of trespass is completed on the completion, as it were, of the trespass on the property, when the person leaves the property. Now, the cases that are cited against us deal with that when newspaper reporters are told to get off the property and the tort is completed upon their leaving the property.

If there were another tort, and we have not been invited in the submissions, other than privacy, to consider one, then it may catch what your Honour says, but the case that we are meeting is limited to the tort of trespass and when the matter went on appeal to the Court of Appeal - in the appeal books your Honour will find the notice of appeal by Lenah Meats, page 35 - to answer your Honour Justice Callinan, the brackets of orders sought are 1, about trespass, which would be a civil trespass, I take it - orders 1 and 2 on page 35, and then orders 3 and 4 invoke section 14 of the Police Summary Offences Act - Police Offences Act, section 14B. Your Honour raised this yesterday; my learned friend was going to make available a copy. Maybe he has.

CALLINAN J: I have a copy of it now.

MR TOBIN:

A person shall not, without reasonable or lawful excuse (proof of which lies on him), enter or remain on land, without the consent of the owner or occupier of the land or the person in charge thereof.

CALLINAN J: But, Mr Tobin, you have to be able to say, do you not, that there is no serious question to be tried in relation to this remedy at this stage because Justice Gummow yesterday invited the parties to convert this, as it were, into a final hearing and that was an invitation that was not taken up.

MR TOBIN: Your Honours, if the matter were to go back, if that were to happen, then leave would be sought to introduce some evidence on some issues - some of them were canvassed yesterday.

CALLINAN J: But you could apply at any time for the dissolution of the injunction up to the time of trial, but as for today, you really have to satisfy us, do you not, that there is no serious question to be tried in relation to the matter that the Full Court thought arguable.

MR TOBIN: Yes.

GLEESON CJ: I am surprised that you agreed to that proposition. This was a discretionary remedy, the remedy of interlocutory injunction, and as I understood your argument, you were saying that the discretion was exercised on the basis of an error of law. I do not understand that we are being invited to substitute our own discretion for the discretion of the courts below and if you established that the discretion of the courts below was exercised, or the court below was exercised on the basis of an error of law, then the consequence may be that it would go back to that court for a fresh exercise of its discretion.

MR TOBIN: Yes. What your Honour puts to me is my understanding of the position I am taking, that the matter would not be a matter for your Honours to consider fresh evidence but it would be open - if it were remitted on the ground that the appeal succeeded because their Honours misdirected themselves or operated under an error of law then that would be the consequence - - -

GLEESON CJ: We might come to the conclusion that there was no basis upon which a proper exercise of discretion could have resulted in the grant of an injunction against you or we might come to the conclusion that there is such a basis but that there was an error of law on the part of the court below, or we might come to the conclusion that the court below got it right.

MR TOBIN: Yes.

KIRBY J: Whilst you have Taylor open you will see in Justice Rich's judgment the reference to the Balham Dentist Case. Do you remember that? It is the case where the neighbours of a dentist - rather uncongenial neighbours, one would think - put a series of large mirrors in order that they could look at the dentist in his study and in his surgery and so on and that was held and it was referred to, I think, in Professor Winfield's article, not to give rise to any remedy. Now, obviously, Justice Rich and Justice Evatt found that to be a completely unacceptable outcome and indeed Justice Rich, rather presciently for 1937, said that the prospects of television make our present decision a very important one.

MR TOBIN: Yes.

KIRBY J: It is pretty hard to justify a refusal of an injunction in such a case, is it not?

MR TOBIN: The writing on that case pretty confidently suggests that there would be a remedy in nuisance and it does recommend itself - whether it would be found I am not sure, but it does recommend itself as the sort of remedy that would be available for those seeking an injunction, as an interim measure. If I can, as it were, end this matter before perhaps going to Lange, the respondent's submissions seek to face the consequences of the support for the decision below. If I could refer in particular to the passage of paragraph 28. They say at paragraph 28 that the effect of a series of decisions in England which is based upon concepts of forms of breach of confidence as analysed:

by Phillipson and Fenwick who conclude that an action for breach of confidence is almost indistinguishable from `pure' privacy tort".

Your Honours are invited by the respondent and supported in this by the Attorney-General for the Commonwealth to regard the propositions advanced by them as principal, incremental and in accordance with equitable principle and its adaptation to new circumstances. We would submit to your Honours that there are two errors in that. The first is there must be a recognisable cause of action or a development in a recognised cause of action not a mutation of it, and, secondly, that - - -

KIRBY J: That is not a very helpful metaphor because one person's mutation is another person's development.

MR TOBIN: Why we say a mutation is this, your Honour - - -

KIRBY J: After all, we are all the products of the mutations of genes over millennia, including you and me.

MR TOBIN: We can recognise Cro-Magnon man, your Honour, if we meet him in the street, although we would be his mutation. The development of the tort by means of the application of equitable principles attaching to breach of confidence is simply not appropriate because the breach of confidence principles are developed in the arguments against us, with the exclusion of confidence which is the ground rule for the development of that particular cause of action. What is called an analogy is, in our submission, in fact a mutation, that there is no tort and as then Professor Heydon pointed out, a near tort is not enough to found the jurisdiction for the grant of an injunction.

GLEESON CJ: Mr Tobin, can I ask you a question of fact?

MR TOBIN: Yes, your Honour.

GLEESON CJ: Was there a finding of fact, either at first instance or on appeal, or was there evidence, to establish knowledge on the part of your client of the circumstances in which these images were obtained and in particular of the interference with the physical integrity of the building?

MR TOBIN: The appeal book page 11 in paragraph 6 and the preceding part of paragraph 5 is the evidence of what was known to the ABC and its servants and agents. To answer your Honour, paragraph 6 says simply that:

Ms Tierny -

from the ABC -

told me that she had obtained the tape from a Mr Mark Pearson . . . subsequently had discussions with her about the source . . . that it was received by her from Animal Liberation (NSW) together with a letter or letters on the letterhead of the Second Defendant describing what was on the tape and other material relating to the Plaintiffs processing - - -

The affidavit then continues in paragraph 7. In the proceedings, the ABC would have notice of what was contended for but prior to the filing of the affidavit. Mine is undated, unfortunately - the same day as the application, and I think the application proceeded ex parte, at first instance.

GLEESON CJ: The reason I ask the question is this, organisation, such as your client and its competitors, must frequently obtain material which has been illegally or tortiously obtained in the first place and passed on to them. Sometimes they would know of the illegality or tort, sometimes they would merely suspect the illegality or tort, sometimes they would not have the faintest idea. Are the facts in relation to that question relevant, or were they regarded as relevant in the decision-making process in this case?

MR TOBIN: Your Honour, I will check the transcript of argument below. My recollection from having read it is that that issue was not canvassed but I say that subject to correction. Mr McElwaine does not recollect either it being argued before the court, the subject matter of the knowledge of the ABC of the provenance of this material, other than in the terms of paragraph 6.

GLEESON CJ: Well, presumably, if we are being invited to formulate a principle and especially if we are being invited to formulate a new principle, it is going to have to be expressed in terms that take account of those various possible factual differences.

MR TOBIN: Yes. Your Honours, in that process there was one last judgment in this bracket of matters that I wanted to refer your Honours to. It is a decision called Liberty Lobby and it is a decision of the United States Court of Appeals in the District of Columbia. The Bench was headed by Mr Justice Burger and I am almost sure that it was Warren Burger who became the Chief Justice shortly after. I have not checked the Internet but I think that is the proposition, and there is relevance to my making that point which I will mention latter. If your Honours see the judgment, what had happened is perhaps sufficiently set out on page 491 at the bottom of the left-hand column.

The parties were a lobby organisation and Pearson, who is one of the columnists in regular litigation at this time:

The question here, however, is whether Appellants have made out such a case by their pleadings and evidence. Their complaint alleges that an employee, one Jeremy Horn, in breach of duty and of Appellants' rights, reproduced private documents and delivered copies to others including Appellees who will publish them. Horne admits making copies of various letters and documents which were in his custody while an employee of Appellant Liberty Lobby including publications sponsored by Liberty Lobby and income tax returns of Liberty Lobby. Horne testified in pre-trial depositions that he gave copies of these papers and income tax returns to the FBI and later to Appellees. His testimony was that he did not know whose property these papers were; he refused to answer various questions . . .

[8] Upon a proper showing the wide sweep of the First Amendment might conceivably yield to an invasion of privacy and deprivation of rights of property in private manuscripts. But that is not this case; here there is no clear showing as to ownership of the alleged private papers or of an unlawful taking and no showing that Appellees had any part in the removal of these papers or copies from the offices of Appellants or any act other than receiving them from a person with a colorable claim to possession.

They upheld the refusal of an injunction against publication. The decision was supported by Justice Skelly Wright at 492. In the middle of the right-hand column:

The evidence offered on the application for temporary injunction shows only that a disenchanted employee of Liberty Lobby made copies of documents found in its office and gave the copies to appellees who are newspaper columnists. There is no evidence of complicity between the employee and the columnists in obtaining the copies. Nor is there any evidence that the documents copied are private. Moreover, Liberty Lobby, a corporation, has no claim to "privacy." See W. PROSSER . . . And Carto is its founder, treasurer - - -

GLEESON CJ: Can I ask you what the word "private" means in that connection? Does it mean private property or does it mean confidential?

MR TOBIN: I would understand confidential, your Honour, but it does seem - what would contradict that is the description of the papers including income tax. But it goes on to describe - - -

GUMMOW J: Well, what his Honour is trying to do in that passage, he is excluding conspiracy: "There is no evidence of complicity". Then the next sentence is excluding confidential information. The next sentence he is excluding right to privacy because it is a corporation. He is shutting gates, I think.

MR TOBIN: Yes. Well, your Honours, that was authority in the United States at the Court of Appeals level of the United States judicial system in favour of not granting an injunction if it is not grounded upon a recognised cause of action.

Your Honours, if I could summarise what we say about the issues of both a tort of invasion of privacy and the confidentiality issue, because they are mixed up, and I think they are mixed up in the precise terms of my learned friend's submission, that to recognise the equity would be, in effect, to establish some form of tort of privacy. We say, first of all, your Honours, that corporations are not entitled to the remedy if there be a tort of invasion of privacy.

Second, we say that on the admissions of the respondent, there is absent the necessary element of confidentiality in the material disclosed. They are not private facts in any sense.

Third, your Honours, to return to something your Honour Justice Callinan put to me yesterday, if there be a tort of invasion of privacy and if there be defences to it, and if those defences were to include issues of prior consensual disclosure, for example, then the parties would be in the position of needing or being entitled to lead evidence on that matter.

As your Honour the Chief Justice put to me yesterday, "Is there any evidence of inspectors or others visiting the premises?". If it were the case, the quarantine inspectors and Tasmanian Health Department inspectors and members of the public or members of the press or shareholders in the company were regular visitors to the premises and there was no effort to hide the activity from the parties, then that would be a relevant question.

KIRBY J: But would that not then be tendered in the final proceedings. That is to say, before a decision was made whether the injunction should continue or be dissolved.

MR TOBIN: It does go, however, your Honours, to the question as to whether your Honours can satisfactorily properly deal with the issue of whether there is such a tort, without, as it were, having the factual material from which you could analyse what might be a defence to that tort.

KIRBY J: But is not a special leave question rather than a question of whether or not the matter now being before us, we should say it is right to slam the door? It is not even arguable. It is not even available. I mean that is essentially what you want us to do.

MR TOBIN: We invite your Honours to say that, but to say that it would be an impermissible form of judicial legislation, and I do not say that with disrespect but I say it most forcefully to your Honours. I would understand my learned friend's submissions to recognise that, but in then attempting to formulate a tort, obviously, your Honours, the question that arises, what are the defences. Are we to borrow from the United States an absolute defence available in some circumstances of prior disclosure such as in court cases or the like? Do we have available on behalf of the ABC a defence that might involve an attack upon the private nature of the information along the lines that I have outlined? Your Honours, they seem to be questions that cannot realistically be resolved on appeal.

KIRBY J: Do you tell us that nowhere in the common law world has a tort of privacy been developed by the judges? I understood in the Commonwealth's submission that there is a reference to New Zealand, but we were told yesterday that that is based, as in the Canadian cases, on statute.

MR TOBIN: There is a judgment in New Zealand. Perhaps there are several.

GUMMOW J: It is not based - we were wrongly told, were we not?

MR TOBIN: There is a judgment in New Zealand where the Court said that there was a common law right of invasion of privacy.

GUMMOW J: Several of them.

GLEESON CJ: But there is an anterior question of the meaning of the concept of privacy. Here you have a corporation, as I understand it, carrying on a perfectly lawful business operation, not in any circumstances of secrecy. I do not know how many employees it has. I do not know how many visitors it has. I do not know whether tradespeople come on a daily basis or a weekly basis as well as inspectors.

Now, apart from invoking conceptions of private property, which I understand, what does it mean to say that the way that corporation is carrying on its business is private. What is the meaning of the word "private" in the context of that proposition?

MR TOBIN: Well, your Honour, it would offend in two ways. The first is that if it is postulated that what is depicted is accurate, then privacy is said to attach to something which is true, if I can use the language of "truth" or "falsity", something which is truly depicted, yet, something which is not said in any way to be secret or confidential.

GLEESON CJ: Well, at the moment people start talking about interfering with the physical integrity of the building and committing trespass, they are into the area of rights of private property, which is well-charted territory.

MR TOBIN: Yes. Well, the difficulty in analysing the case with the concession that there is no confidentiality is that that would seem to be the hallmark of what is private. That is, that one is entitled to keep in confidence that which occurs outside the public gaze, and you then may, of course, consent to it not being kept private as the Liberty Case has indicated.

KIRBY J: There may be added an element that it is information of its nature, the disclosure if which will cause hurt or embarrassment or cause the person who is the subject of the information to be regarded in an unfavourable light.

GLEESON CJ: Yes, or be bad for business.

MR TOBIN: Well, the three that his Honour Justice Kirby put to me, yes, because they go to the private individual's realm of protection, but as to business - - -

GUMMOW J: But in New Zealand they put an objective element in it, too. They say, "The matter made public must be one which would be highly offensive and objectionable" -not just to the plaintiff -"highly offensive and objectionable to a reasonable person of ordinary sensibilities."

MR TOBIN: Yes. Your Honour, there is a similar statement in the second restatement of tort law, and the onus of proof rests on the plaintiff to establish that. There is no trace of that in these proceedings, of course, nor would they be; it was not contested.

The heart of the problem, though, your Honours, must be that the word "private" as we use it is attached to the individual's realm of protection. The papers are private to a company for its internal procedures, but that is protected by breach of confidence issues. The privacy legislation and the common law of privacy is directed to individuals, and once one uses it to protect goodwill, one, as it were, starts to undermine the usefulness of the word.

The real issue that is puzzling in these proceedings seems to us to be why an injunction was not sought if there was a cause of action grounded in damages for liable or, perhaps, for injurious falsehood. That would seem to be the natural course to take, and, of course, that course would meet the problems of Bonnard v Perryman and the other cases about libel. But that would seem to be the natural recourse to a party whose goodwill is disparaged by depictions of the manner in which that company slaughters animals. That would seem to us to be the natural reach of the law.

KIRBY J: But is not that against you, because once you concede that a corporation can bring a suit for defamation or injurious falsehood, then you are conceding that they can suffer the same kinds of hurt that it is said an entitlement in privacy would protect.

MR TOBIN: Well, we do not adopt what your Honour puts because the right of privacy does go fundamentally to hurt to feelings, which a company, of course, does not have. So the company's interest in protecting its goodwill is to be found in the statutory protection that we have set out from the Tasmanian Defamation Act based on the Code.

HAYNE J: Well, can the point be tested a little against this kind of example. Your client broadcasts film which says that the respondent "processes", as the word is, "possums", a picture of cuddly little possum. "It does it by traditional abattoir methods". Picture of a pork abattoir. That is, "kills the possums or stuns the possum with captive bold", close-up picture, pig being stunned, "then sticks the beast", picture of pig being stuck, with accompanying soundtrack, what then is the complaint of the respondent if such a broadcast is made?

MR TOBIN: Well, the respondent says, "You depict us as being unreasonably cruel to the animals we slaughter".

HAYNE J: That is defamation or injurious falsehood. Absent defamation, absent injurious falsehood, what is the complaint of the respondent?

MR TOBIN: The complaint is, your Honour, as I would understand it, that a true depiction of the slaughter of animals, to resort to the vernacular, will put people off. That is all it is, that the depiction of the slaughter will be revolting to the public.

HAYNE J: Yes, and it is.

MR TOBIN: And it is. If I could ask rhetorically, and why should the public - if other property rights are respected and other reputation rights are respected, why should the public not know that?

KIRBY J: Well, one might ask, rhetorically, why does your client not go into ordinary abattoirs of the meat that we are all eating, and reproduce that? Why pick on the respondent?

MR TOBIN: I suppose every day has its new sun, and the sun that was rising here was that of Australian wildlife being used commercially for export. If it were koala bears, there might be an even greater burden upon my shoulders, your Honour, but that is the reality. What we say, and we do not say this critically of Lenah Meats, but what we say is that if you want to conduct an abattoir's business, you are not entitled, as it were, to complain if there be a true and lawful depiction of what your business it.

Now, your Honours will know from the notice that is served that we also contend that the error below in failing to take account of the free speech issue - and their Honours robustly rejected that as going to their discretion - must give rise to the application of Lange's Case to the matters that involve the granting or not granting of the injunction. The argument we wanted to put is very brief. It derives from - 189 CLR 567.

KIRBY J: Can I just understand, are you using this principle, the constitutional principle, as a source of restraint in developing a tort of privacy which would necessarily impinge upon the full ambit of the constitutional principle?

MR TOBIN: Yes.

KIRBY J: And it is, therefore, another reason to inhibit, with all the other reasons that you mentioned, the creation of such a tort at this stage in Australia.

MR TOBIN: No. It proceeds on the assumption that your Honours are against us on the questions that I put on cause of action, including the tort of invasion of privacy, but then would consider what was the obligation on the court below in exercising its discretion in the light of Lange's Case.

KIRBY J: Cannot you use it in two ways: first of all to say if a court in Australia is considering the development of a tort of privacy at this late stage, a new factor has entered the equation and that is that any such tort would necessarily within the realm of public discussion run into the inhibitions which Lange and the earlier cases established and, therefore, that is an added reason against judicial invention?

MR TOBIN: Your Honour, I think I would begin at the other end, which is what the evidence dealt with; whether, on the evidence, there was a serious issue to be tried; that the film and its use involved the issue of the freedom of the communication about government or political matters. So we would have to satisfy the first test, that this film which is disembodied in the context of a quia timet injunction from the program and the discussion surrounding it, so that the Court would then have to say what are the circumstances in which we would find that there is a serious issue to be tried as to whether it satisfies the first test at 567 in Lange, and, second, whether the grant given injunction applying a discretion from Lange's Case requires an enumeration of basis upon which the discretion would be exercised.

So that two steps, and I think they are short steps, your Honours, are, first, we contend that the injunction against the use of the film was one which burdened the freedom of communication about government or political matters. To get there, your Honours, we need to refer to the fact that the source of the information was Animal Liberation. That is in the affidavit evidence that I have read. Second, that your Honours are entitled to take judicial notice of the fact that Animal Liberation, under those descriptive words, has had candidates which have contested elections, certainly in the States here. I would understand it to be a notorious fact, but if there is a candidate for the Australian Senate, Professor Peter Singer, prior to this publication in the Victorian division of the Senate elections, that your Honours would be entitled to conclude that the supply of the material by Animal Liberation - - -

KIRBY J: I hope you are not adding facts to the record because we are not allowed to do that.

MR TOBIN: Well, I am inviting your Honours to adopt a generous view as to what is a notorious fact. In other words, if a man's name is on the ballot paper in the State of Victoria or in the State of South Australia, all the adults are going to - - -

KIRBY J: I know Professor Singer and I have never heard that he stood for the Senate, and anyway, he is now in the United States.

MR TOBIN: Yes. He lost, your Honour.

KIRBY J: You are adding more facts.

MR TOBIN: Well, your Honour, I know that notoriety is a dangerous swamp for me to venture into.

The third element the, your Honours, is - and for this we rely on the discussion in Levy's Case especially by Justice McHugh - that the denial of an opportunity to present a political message can operate as a burden within the finding in Lange's Case.

KIRBY J: How would you define the political message in this case?

MR TOBIN: The publication by or at the behest of a political interest group of subject matter within its agenda for legal reform.

GAUDRON J: Well, in any event, it is a licensed - there is material, is there not, that there are licences. It is for export and we know if matters are for export there has to be some form of government regulation and control.

MR TOBIN: Which would be the governmental matter rather than, perhaps, the political matter.

Your Honours, finally, with regard to the constitutional issue, we would say it would be pretty plain that the test to be applied in the granting of a quia timet injunction against publication, if the content, arguably, would fall within the protection of Lange's Case, must be very - the public interest issue, the factors which favour publication, must be stressed very strongly because the operation of the restraint against publication obviously goes to the very heart of the availability of opportunities to engage in political discourse or discourse about governmental matters. We have set out in our written submissions, and I will not revisit them, your Honours, what we say should be the balance. That is, the balance should, in fact, favour publication.

GAUDRON J: Well, now the British courts have developed a particular test in this regard, have they not?

MR TOBIN: From the European Convention.

GAUDRON J: That is based on the European Convention, is it?

MR TOBIN: Yes. But the model that we would - - -

GAUDRON J: There is some statutory provisions in other countries.

MR TOBIN: I have not visited them, your Honour.

GAUDRON J: No. Well, what do you say the test should be rather than just simply saying it should be very high?

MR TOBIN: Well, the bottom of 11 and top of 12 set out three grounds that we say should operate.

GAUDRON J: That is of your submissions?

MR TOBIN: Of our submissions. They suffer from generality, but, for example, "the power is to be exercised with extreme care" is directly from the Church of Scientology.

GAUDRON J: Yes, well that does not take you very far.

MR TOBIN: But, your Honours, in Church of Scientology Mr Justice Needham decided the matter on the question of whether the church, the plaintiff, had put in issue the falsity of the publication. So he applied a very heavy test. I should also say he seemed to adopt unconscionability as a basis, which we challenge, but that - - -

GUMMOW J: It was Justice Hunt, was it not? I do not think it was Justice Needham.

MR TOBIN: Mr Justice Hunt. I was referring to Church of Scientology v Transmedia, Justice Needham's decision in 1987. It is on our supplementary list, your Honour.

The second is that before granting an interlocutory injunction, the courts must balance the rights of free speech with the protection given to the applicant. That was not done in this case, in effect. And then, ordinarily, very strong reasons will be required before the Court can conclude that the interest of the protection of the applicant outweigh those of freedom of speech and an interlocutory injunction will lie where it would have the effect of restraining the discussion in the press of government and political matters.

GAUDRON J: Now, all of those sound nice and discretionary, and seem to leave open the way for idiosyncratic views about what is more important in the situation. The British, as I understand it, have rejected the "arguable case" test in this area, and have gone for "probably succeed" test, is that not right, or "likely to succeed"?

MR TOBIN: I am not aware of that, your Honour. We have footnoted - at page 5 of our submission, your Honour, in reply, footnote 11 is a Times Law Report from 30 January, which is Imutran v Uncaged Campaigns. That is the case, perhaps, your Honour has in mind where they have raised the American sign - - -

GAUDRON J: No, it was not the "trump card" test, as it were, because that seems to me to be not a useful test either. I thought the position had been reached that an injunction which would inhibit free speech would only be granted if the applicant for the injunction was likely to succeed in the action for principal relief.

MR TOBIN: Well, your Honour, the hole this proceeding is that there is no principal relief. There were no damages identified or - - -

GAUDRON J: Yes, but I was just wondering, are you in a position to research where that test came in from?

MR TOBIN: Yes, your Honour.

GAUDRON J: If that is the test, where it came from. I mean, it is not against you at all, and I think it has developed in relation to actions for what is said to be breach of confidence. That would probably be a breach of privacy on the arguments that are now being put in this case.

MR TOBIN: Your Honour, we will have a look at that footnote and see what we can turn up. I must say it is a little - the resources may not be readily available to us over lunch, but we will try, your Honour. Your Honour, they are our submissions.

GLEESON CJ: Thank you, Mr Tobin.

KIRBY J: Could I just ask Mr Tobin, I think you were being a little unfair to Justice Evans because at page 63 and 64 his Honour, at the end of his reasons, does refer to your client's reliance on the well-established rule about great caution, only very clear cases, and over the page he says:

The genesis for the above rule is concern about fettering concepts of free speech and freedom of the media.

So there is no doubt that his Honour, in reaching the view that he did and the order that he did, appeared to take into account the consideration that you are referring to. Maybe he did not express in the way that you are urging, but he certainly had it in mind. When you look to Justice Wright at the end of his reasons on 44, he says that he refers to what he calls "glib chichés" such as "freedom of speech". It is not as if he did not consider it; he expressed a healthy scepticism about it in the context of a case like this, but it is not true to say, I think, that the majority in the Full Court did not have these matters in their minds.

MR TOBIN: Well, we would say they did not apply the principles. The quote from Justice Evans I had in mind, your Honour, is at 64 on the second line. His Honour uses less than dogmatic language, but he says:

The rule has little force in circumstances such as the present where injunctive relief to prevent unconscionable conduct is the only substantive claim I can discern to be available to the appellant.

On our reading of that he, in fact, dismisses it as an operative criterion.

KIRBY J: But you are not saying, are you, that it allows for only one conclusion. You are saying it is a matter that has to be given weight, or do you say that it allows of only one conclusion?

MR TOBIN: No, I do not say there is an absolute rule, but in considering the exercise of the discretion, the Court must, as it were, give proper recognition to what the factor is that it is considering. Glib clichés about freedom of speech is not the proper application of the rules of free speech, and what Justice Evans says there about the rule having little force is, in effect, to dismiss its application. I think, as I said, he does not use dogmatic language, but the effect is to say this rule about freedom of speech, which applies in defamation cases, for example, will not operate where the substantive relief is purely related to unconscionable conduct. That is our interpretation of what has happened, your Honour.

GLEESON CJ: Yes, Mr McElwaine.

MR McELWAINE: If it please your Honours, we support at least to an extent the appellant in the event - - -

GLEESON CJ: Yes, Mr Solicitor.

MR SELWAY: Your Honours, before getting to our primary submission it might be useful to set out what we understand the background to it to be. The facts in this case and the allegations are scanty. It is our understanding of the current law that the respondent is not entitled to a final injunction or to damages on the facts in this case, so far as they are revealed. If the facts were varied or more facts were found it may be that that would change and we make the point in, I think, our footnote 3 that, for example, if the audio of the film showed private conversations, that would be a criminal offence to publish that in this State and that may found, in the appropriate circumstances, an injunction to prevent its publication. That fact is not revealed in any of the material before the Court.

We say that the result is sufficiently clear on current authorities that the respondent was also not entitled to an interlocutory injunction. In any event, so far as one can tell, the Full Court should not seem to approach the matter in determining whether there was a serious question to be tried, but rather approach the matter by determining what the law was and we say fell into error.

In response to that, the respondent and the Commonwealth argued that the current equitable principles on the grant of injunctions should be further developed so as to apply in this case and they do so by trying to draw an analogy between equitable proprietary rights and tort. The respondent also argues that the common law should be developed to recognise the tort of privacy. We say both of those arguments have obvious difficulties, but the South Australian submissions are limited primarily to the effect of the constitutional limitation relating to free speech of Commonwealth political matters.

As to that implication we make three points. The first point we say is that if a statute was enacted which prohibited the publication of a legally obtained video-taped evidence in the circumstances of this case, we would say that statute would be valid. We make that point in paragraph 7 of our written submissions. There are two reasons for it: first we say that on the evidence it cannot be assumed that this is a matter of Commonwealth political interest. We say that, notwithstanding that Animal Liberation seems to have had some involvement in it. Firstly, the involvement seems to be a statement of hearsay in the affidavit of Mr Kelly.

GAUDRON J: But is it not conceded that it was for an export market?

MR SELWAY: Your Honour, there was an export market. The question is, what the publication has to do with that export market, and that, we say, is a question that may require some evidence.

GLEESON CJ: When you say there was an export market, there is not a big local consumption of possum, is there?

MR SELWAY: I do not know, your Honour.

GAUDRON J: I mean, is it not a matter of political or governmental interest - Commonwealth, political or governmental interest, that we are exporting possums?

MR SELWAY: Well it may be, your Honour, but the question - - -

CALLINAN J: Under a Commonwealth government licence, moreover.

GAUDRON J: Yes.

MR SELWAY: Your Honour, the material in the affidavit, if one looks at it, suggests that the process, if it was to show cruelty, involved either an industry code or a State code. There was some suggestions that it may affect markets overseas in a commercial sense, but not in any sense a political sense. There is no evidence that anyone is running a political campaign. I think my learned friend put it as highly as the ABC was operating at the behest of Animal Liberation - ABC might think it is a strange concession - but we would say the absence of evidence in this case operates two ways. It not only operates to assist the ABC in the sense that there was no evidence relating to privacy, but it also operates that there is no evidence to support any claim of political interest. The mere fact that the Commonwealth may have some interest in some aspect of it does not mean that the publication concerned that.

KIRBY J: But, apart from the points that were raised by Justice Gaudron and Justice Callinan of the export quality of it, you cannot really differentiate possums in Tasmania from possums and other native animals throughout the Commonwealth. If there is a public interest issue, it is an integrated public interest and political issue of the export of native animals from Australia.

MR SELWAY: Yes, your Honour, I would agree with that completely. The position we take is that there is no evidence that this is a public interest issue at any level.

GLEESON CJ: You keep referring to the absence of evidence. This is a case in which there are pleadings.

MR SELWAY: Yes, your Honour.

GLEESON CJ: Now, was the statement of defence filed before the application for interlocutory injunction was heard?

MR SELWAY: I am told after, your Honour.

GLEESON CJ: I cannot see any reference - I am open to correction - in the pleadings to this issue.

MR SELWAY: My suspicion is that this issue was thought of when the 78B notice was issued a month or so ago.

CALLINAN J: The defence is really a succession of non-admissions and I think very little else.

MR SELWAY: Yes. The only point we make, your Honours, is there are some matters - my learned friend refers to notorious facts - which are notorious and one can take notice of the fact there is a political issue and political agenda being pursued. We would say this matter does not obviously fall within that category. It may not have required very much evidence, for example by Animal Liberation or others, for it to do so, but there are obvious reasons why, with respect, they did not file affidavits in this matter, because it may have meant one could explore the issues of who broke in and how. In the absence of those affidavits, one cannot leap to the conclusion, we say, that there is a constitutional issue here.

The second matter we say is that in any event, if this were a statute it would clearly fall within the qualification reasonably viewed as adapted to a legitimate object, the legitimate object being, in this case, the protection of the private property of the respondent. Your Honours, the second point we wish to make is that the effect of the constitutional limitation upon the development of judge-made law is quite different from its effect upon statute. Most obviously, the constitutional limitation does not resolve an invalidity, in so far as it applies to common law; rather it affects the development of the common law.

Other principles and objectives are also relevant to that development and because it is judge-made law the development should be orderly, incremental and principled. The result is that the effect of the constitutional implication upon judge-made law is probably less direct and may be more subtle than the effect on legislation. An obvious example is the effect of the qualification reasonably viewed as adapted for a legitimate object. We would say there is no reason why the common law should develop having regard to that limitation. That qualification is a test for determining whether there is a legitimate object or purpose of the legislature. Such a test is required because the court cannot ascertain the subjective intention of the Parliament.

Consequently, the qualification reflects the need for comity between the institutions of government. There is absolutely no reason, we would say, why that qualification should apply to private individuals or corporations. Their subjective purpose can be proved. Different issues arise as to whether their objectives are legitimate or not. We would say, for example, that of the some of the submissions made in this case do not reflect the need closely to distinguish between the effect of the implication upon common law as against statute.

The third point we would make is that the constitutional implication may have the effect of limiting the extent to which the common law or equity can develop. We make that point, your Honours, in paragraphs 12 and following of our written submissions. In particular, we draw attention to the fact that the constitutional limitation says nothing once you are outside the area of the limitation. It does not say, for example, that there should be free speech beyond the area of Commonwealth political matters.

KIRBY J: Except to the extent that there is an integration of federal and State concerns.

MR SELWAY: I am sorry, your Honour, that being understood. But what it does not say is that free speech, in relation to the reporting of the Adelaide Crows football results last weekend is a matter that should or should not be protected. The constitutional implication has nothing whatever to say about that. But, on the other hand, given that the common law must develop in an orderly way, there is the problem of trying to identify a principle whereby political speech is protected and other speech is not. The conclusion we draw from that is that the constitutional limitation may, in fact, make it more difficult to identify an orderly means of developing both the common law and equity.

GUMMOW J: Well, that in a way is why Mr Tobin focused on the particular remedy.

MR SELWAY: Yes, your Honour, we understand the point, but what we say is that if one looks at the constitutional implication it would seem to suggest that for some free speech should be given a wider ambit and I think my friend, Mr Tobin, basically took that submission. We say we cannot see why that is true.

GUMMOW J: But he did not want to get into the substantive doctrine.

MR SELWAY: No. The difficulty we see is that once you have an area, if you like, cut out of the development of the law because of the constitutional implication, it may make it more difficult for the development of other legal remedies within the same broad area. If it please the Court, those are our submissions.

GLEESON CJ: Thank you, Mr Solicitor. Yes, Mr McElwaine.

MR McELWAINE: May it please the Court. Could I first deal with a factual issue which your Honour the Chief Justice raised a few moments ago with my learned friend, Mr Tobin. Your Honour asked whether there was evidence that the ABC knew of the circumstances in which the tape was obtained before the injunction issue? The answer is yes. If you look at my learned friend's chronology and, in particular, if you look at page 15 of the appeal book, your Honours will see set out on page 15 the terms of the undertaking which was given before Justice Evans on 29 March. The order made by Justice Evans on 29 March is at page 14 of the appeal book. It only restrains Animal Liberation and it did not make reference to the ABC, the reason is the ABC proffered an undertaking in writing. The ABC then applied to have the issue litigated before Justice Underwood and he refused to enjoin the ABC. So, I submit, certainly the ABC knew of all of the facts set out in Mr Kelly's affidavit before there was publication.

CALLINAN J: There was one publication, is that right? What date was that?

MR McELWAINE: There has been a very limited publication which occurred on 4 May. What happened is Justice Underwood refused an injunction against the ABC. They intended publishing the next night. The appeal was lodged either the day or the day after Justice Underwood refused the injunction. A stay was sought from Chief Justice Cox, or a further injunction, which he refused from memory, at about 6.30 pm and the film was shown that night on the 7.30 Report.

GUMMOW J: The question is, what did they know when they got the material?

MR McELWAINE: They know only what John Kelly attributes Judy Tierny having said to him in his affidavit. But certainly their degree of knowledge was much greater before they published.

GUMMOW J: Is not all you are saying is that when they eventually put it on the 7.30 Report they had heard all of it gone on in court?

MR McELWAINE: Yes, and when they intended to put it on, on the 7.30 Report, they knew about the essential facts, from my client's point of view: the trespass and the absence of consent.

GUMMOW J: Yes, but what was their knowledge at the time when they received the tape?

MR McELWAINE: The only evidence before the court was what is set out in paragraph, I think it was, 7 of John Kelly's affidavit, which my learned friend referred earlier this morning. That is that Judy Tierny had told him that she had received it from Mark Pearson at Animal Liberation - I will just find that, your Honour.

HAYNE J: It is at page 11, paragraph 6.

MR McELWAINE: Yes, and it is a portion of paragraph 5, because she attended at his office, asked him general questions about his processing operation, produced the video tape, asked him for some comments about it. In particular she asked him whether he was complying with the Animal Welfare code of practice and he said that he was, so one assumes that she had some information that there was perhaps non-compliance.

CALLINAN J: Can I just come back though to what was actually telecast. The matter came before Justice Underwood on 3 May 1999, is that right?

MR McELWAINE: Yes.

CALLINAN J: And his Honour, what, discharged the injunction and the undertakings, did he, on that day?

MR McELWAINE: No. The ABC sought to be released from the undertaking and his Honour refused to replace that with an injunction.

CALLINAN J: Well, did they withdraw their undertakings then?

MR McELWAINE: Yes, because - - -

CALLINAN J: The ABC withdrew its undertaking. His Honour did not grant an injunction. Then there was some publication, is that right? Now, that publication, did it occur on the evening of 3 May?

MR McELWAINE: No, it occurred, from memory, on 5 May, which was two days later.

CALLINAN J: On 5 May. Now, where do we find in the material what was actually telecast on 5 May? I mean, you tell us that it was somewhat less than what the ordinary program would have shown. Where do we find out what - - -

MR McELWAINE: There is no evidence, but it has always been regarded as common ground in the Full Court and in this Court that what was published was but a very small excerpt of the tape that the ABC had.

GLEESON CJ: But, what this case is about is what may be published in the future, not what was published in the past. You are not seeking damages for what was published on 5 May.

MR McELWAINE: Not unless there is a tort of privacy, your Honour, no. Could I next deal with the critical question which your Honour the Chief Justice has posed a number of times, that is, what is the privacy interest sought to be protected? I answer it this way. It is the right to be free of publicity of facts obtained unlawfully.

GLEESON CJ: Obtained by anyone unlawfully?

MR McELWAINE: Obtained by a trespasser, in this case, unlawfully; it could be anyone, yes.

GLEESON CJ: It does not have to be the publisher or an agent?

MR McELWAINE: No.

GUMMOW J: So, what is necessary to draw in the publisher as the defendant? What complicity is required, if any? Or none.

MR McELWAINE: Well, in one case, which I will take your Honour's to, that is Donnelly v Amalgamated Television Services, the Chief Justice in Equity in New South Wales thought it sufficient that there was a knowing participation by the media in an abuse by the police of their powers under a search warrant. In essence what happened - perhaps I should take your Honour - - -

GUMMOW J: But are you saying that that is the requirement? I just want to know - - -

MR McELWAINE: That is one requirement; there might be different requirements in different cases.

GUMMOW J: Well, you cannot write a judgment saying that, I am afraid.

HAYNE J: Is it enough for the plaintiff to say, I did not give permission?

MR McELWAINE: Yes.

HAYNE J: Or must the plaintiff go on to say, I did not give permission and they knew, suspected, believed that I had not? Is that latter element - - -

MR McELWAINE: Yes. In conformity with the confidential information cases, which have restrained third parties, it is a necessary element for the restraint of the third party that the third party knows, or has reasonable grounds for suspecting, that there has been information given in breach of confidence. By analogy with those cases I would say, yes, that is an element.

GLEESON CJ: So, it is the right to be free of publicity of facts which were obtained unlawfully, but the right can only be vindicated either against the person who was responsible for the unlawful obtaining or by somebody who knew or ought to have known of the unlawful obtaining?

MR McELWAINE: That is correct.

KIRBY J: But that cannot be enough. You cannot have it as facts at large. What if they were facts of some illegality on the part of your client or some breach of licences or - you have got to add some quality to the facts that makes them private facts.

MR McELWAINE: That would raise issues of public interest or iniquity again by analogy with the confidential information cases.

GAUDRON J: Why would it not just raise what used to come under the notion of clean hands? Why would equitable relief go in aid of somebody who was breaking the law? That is all you have got to do to deal with that, I think, have you not?

MR McELWAINE: Yes, and, with respect, that is the analysis preferred by your Honour Justice Gummow in Corrs Pavey Whiting & Byrne decision. I appreciate there is a difference in Australian law. Your Honour Justice Kirby has taken a different view in the Spycatcher Case and has put the matter more broadly on principles of public interest.

KIRBY J: It is a long while ago. I do not remember this nuance, but I just cannot accept that it is facts at large. If you are thinking of a tort of privacy then you have got to have some quality of the facts that make them private facts; they cannot be any old facts.

MR McELWAINE: No, but facts obtained through an unlawful intrusion into the seclusion of the plaintiff and the subsequence obtaining of facts and their publication.

HAYNE J: Well, seclusion of the plaintiff carries with it nuances which may be important, they may not be, but do you say that the facts must be private facts or is it any fact?

MR McELWAINE: On the basis of the American cases, public facts do not support a tort. There has to be some privacy to the facts or the facts were obtained by entering into the privacy of the plaintiff, serving the plaintiff in his home, for example.

GLEESON CJ: Now, is privacy conferred by the circumstance that what was going on was going on on private property.

MR McELWAINE: That is an example. The American cases generally say, one has no privacy for what one does in a public case, although there are some cases which have developed exceptions to that and they say, unless, of course, someone was engaged in a private act in the public place. Now, of course, there is a difficulty with that: how can one be engaged in a private act in a public place? The American cases have developed a principle that there must be some reasonable expectation of privacy, which the plaintiff has in order to support the tort.

GUMMOW J: Now, where the plaintiff is a corporation, what is its interest that is being protected other than a commercial one? In other words, if the plaintiff is a corporation, do you not have to have a further element in the tort?

MR McELWAINE: Yes. This was analysed by the English Court of Appeal albeit not in the context of a privacy tort, but in the context of a breach of a broadcasting standard. In R v Broadcasting Standards Commission [2000] EWCA 59; (2000) 3 All ER 989. It is at page 195 of the assembled bundle, which I have made available to the Court. Very briefly what happened in that case is that a television program armed its reporters with secret recording material. They entered into a department store with the intent of disclosing misconduct by the department store, that is selling second-hand goods as new. So there was no entry as such into a private place, but clandestine film was made without the knowledge of the corporation, which was the owner of the business. A complaint was made to the Broadcasting Standards Commission and one of the issues which was dealt with was - - -

GUMMOW J: It is a judicial review application.

MR McELWAINE: Yes.

GUMMOW J: Now what was the administrative decision?

MR McELWAINE: That there was a breach of the broadcasting standards by clandestine filming - - -

GUMMOW J: Or breach of as statute.

MR McELWAINE: There were standards promulgated under the statute. The issue which is dealt with by the Master of the Rolls, that is whether a corporation has a right of privacy, albeit under the standards in that case, is dealt with commencing at paragraph 33 at page 999, where the Master of the Rolls said:

While the intrusions into the privacy of an individual which are possible are no doubt more extensive than the infringements of privacy which are possible in the case of a company, a company does have activities of a private nature which need protection from unwarranted intrusion. It would be a departure from proper standards if, for example, the BBC without any justification attempted to listen clandestinely to the activities of a board meeting. The same would be true of secret filming of the board meeting. The individual members of the board would no doubt have grounds for complaint, but so would the board and thus the company as a whole. The company has correspondence which it could justifiably regard as private and the broadcasting of the contents of that correspondence would be an intrusion on its privacy.

GLEESON CJ: Now that is in development of the proposition at the end of paragraph 32, as I would understand it.

MR McELWAINE: Yes.

GLEESON CJ: So, you begin with a statute, which is being construed. Where do we find the statutory provision and the standard that is promulgated pursuant to that provision?

MR McELWAINE: If your Honour turns back to page 997, you will see the terms of the Code which was set out by the administrative body. It is clause 22 of the Code, which relates to the - - -

GLEESON CJ: Right. Now the standard itself uses the concept of unfairness and the concept of privacy. So this is not a case in which somebody is reasoning from a common law right of privacy to a conclusion.

MR McELWAINE: No.

GLEESON CJ: This is a case where somebody is applying a standard promulgated pursuant to a statute, which is expressed in terms of privacy, and the question of statutory construction that arose was whether or not that comprehended a company.

MR McELWAINE: That is correct.

GUMMOW J: But we find the statute itself, do we not, at 991, in the very first paragraph.

HAYNE J: Between letters f and g.

MR McELWAINE: Yes, I did not put this case up as a case of common law privacy. It is the only case on my research, apart from the American cases which I will take your Honours to about corporations, which has dealt with this issue, about whether a corporation has a right of privacy, if I can express it in that way.

GUMMOW J: It depends what you mean by "right".

MR McELWAINE: Well that is the difficult issue in this case.

GAUDRON J: Well, let us go back a little bit further. Why should there be a right, any right of privacy, in a corporation? Clearly one can see that in the relationships and transactions between people, ordinary people, that there are matters which are essentially confidential or essentially private which, at least, we have traditionally respected - whether or not we have protected it by law is another thing, but at least they have been traditionally respected. You come to the corporation, it is not a person, it is a commercial privilege, it is a bit of paper, ultimately, to which commercial and financial advantage is attached. What more is it? What is there about it that should attract any right of the kind we are now speaking of?

MR McELWAINE: It is, in this case - - -

GAUDRON J: I qualify that by saying, except in situations in which it engages in matters which, in terms or as a necessary inference, you would treat as confidential within the ordinary parameters of the understanding of confidence.

MR McELWAINE: It is, in this case, the occupier of premises which were broken into and where film was taken without its consent and in terms of ordinary tort law we, of course, have no difficulty in affording it a remedy against the trespasser.

GLEESON CJ: Well now that sounds very much like an ascertain of a right of private property and, indeed, your formulation of the concept of privacy is the same; the right to be free of publicity of facts which were obtained unlawfully.

MR McELWAINE: Yes.

GLEESON CJ: You sound as though what you are vindicating is your ownership of those premises or your right of exclusive possession of those premises.

MR McELWAINE: Yes, and the subsequent publication of facts by anyone not limited to the person who conducted the intrusion.

GLEESON CJ: Well if you were vindicating your right of exclusive possession of the premises, you are in a very familiar common law area. Why are we concerned with a new tort of privacy?

MR McELWAINE: It was put up as an alternative to support the order of the Full Court, but I am simply saying that one can reason by analogy from established principles or whether one should ask whether a number of established principles, including trespass, but breach of confidence and so forth - - -

KIRBY J: Yes, but the question is, given that in 1937 this Court declined an invitation to invent or develop the common law to appoint a right to privacy, given that you cannot really point to any other common law country where the step has been taken within, and wholly within, the common law, given that this is a case where it is not a hurt to feelings, a corporation being incapable of having feelings, but a suggested hurt to the property interests of the corporation, why would this be an appropriate case, given all the other problems, for the court to take the step now that was not taken in 1937, having regard to all the intervening steps, including legislative steps, in the meantime?

MR McELWAINE: The problem, I submit, with this Court's decision in Victoria Park v Taylor is that there was no reference to the development of a tort of privacy in accordance with the American model, which had been developed to 1937.

KIRBY J: But that very much developed out of the Constitution of the United States. It was not a pure common law theory. It developed out of notions that the judges found in the Constitution.

MR McELWAINE: Well, as to that, of course the leading case dealing with privacy under the Constitution is Griswald v Connecticut, which was not until either 1965 or 1966, from memory, but way back in 1905 the Supreme Court of Georgia acknowledged that there was a privacy tort for the State of Georgia without reference to those considerations.

HAYNE J: But Victoria Park also owes something the way in which it was pleaded and argued. period.

MR McELWAINE: Yes. It was limited to nuisance and Rylands v Fletcher liability and then copyright.

CALLINAN J: I do not know whether Victoria Park would necessarily be decided the same way today. Information, the value of information today, we would take an entirely different view of that now from what would have been taken of it in the 1930s. I mean, information is enormously valuable in sporting results and sporting events have a commercial value, I would say undreamed of in Australia in the 1930s.

HAYNE J: And might invite the closest attention to whether those items are to be comodified. If they are to be comodified, that may raise the most profound issues or are they to remain in, to use the vernacular, the public domain? Now those are questions of the most fundamental kind, but here, if you say that part of the interest which is being vindicated is the interest in property, does that not shift attention to the level of participation in the breach of that interest? Why does it invite attention or how does it invite attention to "using the fruits of"?

MR McELWAINE: Certainly that is a way to analyse this case and is effectively what Chief Justice Hodgson in Equity did in Donnelly v Amalgamated Television Services in developing the concept of knowing participation in another's wrong and giving effect to another's wrong. I mean, the point was made yesterday that the obvious purpose of the initial trespasser could not have been perfected - - -

GUMMOW J: The knowing participation itself is tortious.

MR McELWAINE: I am sorry, I did not hear that, your Honour?

GUMMOW J: The knowing participation itself is tortious, is it not.

MR McELWAINE: Yes, although on the facts of Amalgamated Television Services v Donnelly, the only knowing participation was taking the tape knowing that it had been obtained in breach of the police powers, but intending to - - -

HAYNE J: But if you cannot get home on established tort, that is, if you cannot establish a sufficient knowing participation, what happens if we accept the invitation you proffer to us? Does it not lead to the inevitable consequence that the moment the possessor of information says, "I did not permit its removal", injunction goes and the consequences for debate, for intercourse of ideas, are virtually throttled. Now, the ship of State may be the only ship that leaks from the top, but much of the political discourse in this country depends upon leak, planted story and the like.

Now, if you say it is enough to demonstrate "I did not permit", the consequence is very large.

MR McELWAINE: Yes, except adopting the American model in Pearson v Dodd, which was referred to your Honours yesterday, the media suggests misconduct, then an injunction would be quite unlikely on public interest or on equity grounds. That, I submit, is the counterbalancing factor to the exercise of the discretion to grant the injunction. But I do not shy away from it in this case from acceptance of the proposition that there is a delicate balancing of interests, even if we do not recognise the tort of privacy, even if we only go as far as saying there is power to enjoin - - -

GAUDRON J: Then there must be cases in which a publisher must know that the nature of the material is such that it is private/confidential and that it is unlikely in the extreme that it could have been obtained legally. Now, that might be one situation, but how far away from that are your submissions?

MR McELWAINE: At the time the injunction was granted, it was refused by Justice Underwood.

GAUDRON J: What is private/confidential about the information, is the first thing?

MR McELWAINE: My submission is that privacy and confidentiality are two different concepts. They certainly overlap, but they are different things.

GAUDRON J: But all you say by privacy is really that it is information unlawfully obtained.

MR McELWAINE: Without consent by fairly unusual means which would not have been made available - - -

GAUDRON J: For information to be private within the debate that is now going on, do you say there needs to be anything more than its having been unlawfully obtained?

MR McELWAINE: No, it has to be a private fact, but not a confidential fact.

GAUDRON J: We go back to it: what is a private fact? Would it be a private fact that your client was conducting an abattoir?

MR McELWAINE: No.

GAUDRON J: Would it be a private fact that it was conducting a possum abattoir?

MR McELWAINE: No.

GAUDRON J: Would it be a private fact that the slaughtering process, is it on a chain and rail process, I do not know, is it - - -

MR McELWAINE: I am conscious of not wanting to put evidence before the Court which was not evidence below.

GAUDRON J: I am asking you to hypothesise. Would it be a private fact that the possums were being slaughtered on the chain and rail?

MR McELWAINE: It would be a private fact of how the respondent was going about its processing operation behind closed doors in the privacy of its own premises.

HAYNE J: Thus, the ABC could not, on "The 7.30 Report", with no vision, run a story which said "The respondent in this case is conducting a killing facility for possums using these methods: (a), (b), (c), (d)".

MR McELWAINE: The injunction has never restrained them from discussing the matter as a matter of public interest. The injunction has only restrained the ABC from using the film and the sound which accompanies the film.

GAUDRON J: Yes.

HAYNE J: What is it that is private that is depicted in the film and the sound?

MR McELWAINE: The processing operation, the plaintiff's employees, the possums, the stunning, the killing room. What the plaintiff does behind closed doors is the plaintiff's business which, in my submission, is entitled to protection from publicity.

GAUDRON J: But, look, on no view is it done behind closed doors. I mean, that is just a metaphor, if you like, and it is not an accurate one. It may be correct to say it is done on private property, but all sorts of people must come and go to this abattoir on a daily basis.

MR McELWAINE: Of course, lawfully invited.

GAUDRON J: So we are not talking about, in the usual expression, "in the privacy of one's own home". We all understand what that means, we are not talking that.

MR McELWAINE: I accept that, your Honour.

GAUDRON J: What are we talking about? We are not talking closed doors.

MR McELWAINE: Well, they are closed to some, but not others.

KIRBY J: It would not be on the rounds of Tasmania's beauty spots. I mean, I think it would have closed doors and only people with a legitimate business would have a right to be in there, and your client would have a right to stop people going in there.

MR McELWAINE: The right of every occupier of land.

GAUDRON J: Yes.

KIRBY J: But the point being made to you is it is really somewhat different to the case of Donnelly that you put before us because Donnelly was a case of an individual and the individual's child had seen a clip of him being shown in his bedroom in his underpants when he was being arrested and somehow that had got from the police to the television station. Now, that gives rise to the private him, the private facts, the embarrassment, the shame, the underpants, that is very much in the realm of privacy; but your corporation is not able to have feelings, its members might, its shareholders, its employees and so on, but the corporation, as such, does not.

MR McELWAINE: I accept that a corporation, as such, does not have feelings, but my submission is that the privacy tort is not limited to redressing hurt to feelings or compensating hurt to feelings. It is to prevent the publication in this case of material obtained by the surreptitious cameras. I mean, the case is clear that Mr Kelly of the corporation would not have given consent to the installation of the surreptitious cameras to film the operation.

GLEESON CJ: Your case amounts to this, does it not: a person who has the right of exclusive possession of land has an equity to prevent publication of information about what is going on on that land, if the information was obtained without the person's permission and if the person, for any reason, does not wish for information to be made public?

MR McELWAINE: Yes.

CALLINAN J: Do you have to go as far as that? Can you not say if the publication of the information caused, on your case so far, incurable harm, incurable loss?

MR McELWAINE: That is an additional element, which I submit strengthens my case, but - - -

CALLINAN J: It also confines it, does it not?

MR McELWAINE: Yes I accept your Honour's comment.

CALLINAN J: In addition to that, in another respect in which you do not have to go quite so far, this was not a case merely of the obtaining of the material without permission. It was a trespass under section 14B, it was illegal under section 14B of the Police Offences Act.

MR McELWAINE: It would be an inescapable inference because of the other evidence about the space invading material in the ceiling.

CALLINAN J: All I am putting to you is that your case is much narrower, perhaps, than the Chief Justice. You do not have to put the case nearly as broadly as the Chief Justice put it to you.

MR McELWAINE: Yes, I am happy to accept your Honour's qualification about that.

GLEESON CJ: That qualifies what you began by telling us was the right to privacy because you said it is the right to be free of publicity of facts which were obtained unlawfully. Do you now say it is the right to be free of publicity of damaging facts which were obtained unlawfully?

KIRBY J: That is what I tried to get you to add an adjective or two to the facts that you were very resistant earlier on.

MR McELWAINE: Obviously I should have taken your Honour's invitation.

GLEESON CJ: That is a pretty major qualification on your original proposition. You now say it is the right to be free of publicity of damaging facts which were obtained unlawfully?

MR McELWAINE: Yes, I now say that, your Honour.

KIRBY J: Why do you not, if you are trying to construct a tort of privacy, say "of private facts", because you have to give some content to why it is the suggested the new tort of privacy, as distinct from something adjunct to the tort of trespass or something adjunct to a conspiracy to trespass, or something adjunct to some other established tort? Why bother to enter this new realm and urge us to do so, without some quality in the facts that invites a new conceptualisation?

MR McELWAINE: I did put the submission earlier, but I say there is a distinction between confidential facts and private facts. I thought I had limited it to private facts and I did so by reference to property and ownership and the right of exclusion, the private facts being what the plaintiff does on its land and who it chooses to see what happens on its land and who it chooses to exclude.

CALLINAN J: You see, I do not myself think that Victoria Park v Taylor has got anything at all to do with a case in which the matter being broadcast has been obtained following or as a result of an unlawful entry upon land. All of the majority judgments in Taylor stress that what was being done was being done an adjoining land, and that there was no interference with, in any way, or entry upon the plaintiff's property.

MR McELWAINE: Yes, and, with respect, that is the precise point which each of the single judges who have considered this issue as against the original trespasser had taken to distinguish Victoria Park.

GAUDRON J: I think I should make it clear, for my part, the difficulty I have is with two things: one, the nature of this information. Let us assume a trespasser stumbled across a country abattoir - definitely a trespasser, but he is lost, he is not doing all that much harm - peaks in, sees that they are slaughtering possums, goes back to wherever and says, "They are slaughtering possums in there". Now, at that point, you would not complain, would you?

MR McELWAINE: Except that the trespasser has learnt a fact by acting unlawfully.

GAUDRON J: Yes, but presumably also it is a fact that you could ascertain by looking at the local council records, could you not?

MR McELWAINE: Well, it would depend what the unlawfulness is, but to follow your Honour's analogy, yes, there are certain types of unlawfulness that could be discovered that way.

GAUDRON J: There are certain types of information, the acquisition of which is not offensive in any way, that is the problem I have. Now, one might find out, if one were curious, from the local council or from the Commonwealth Government, or perhaps neighbours. I mean, it seems to me there has to be something about the information in question that is more than information that is unlawfully obtained, that is to say, if it can be lawfully obtained.

MR McELWAINE: That precise problem has been before the United States Supreme Court in Cox Broadcasting v Cohn, which was the publication of publicly available information, although you had to go looking for it, about the name of the deceased rape victim.

GAUDRON J: Deceased rape victim?

MR McELWAINE: Yes, the rape victim's was published and her father brought an action for breach of his privacy and he ultimately lost before the Supreme Court of the United States. At Cox Broadcasting v Cohn, which commences at page 120 of the volume that I have handed up - - -

GLEESON CJ: What page was that, Mr McElwaine?

MR McELWAINE: Page 120 of my copy volume, your Honour.

GLEESON CJ: Thank you.

MR McELWAINE: In that case, the reporters obtained the deceased rape victim from public records. Her father brought an action under Georgia law for broadcast of that name, claiming that his right to privacy had been invaded by broadcast of his daughter's name. Now, he was ultimately unsuccessful in the Supreme Court of the United States. Could I take your Honours to the opinion of the court, commencing at page 489.

GUMMOW J: They had to decide whether the Georgia statute, which is set out at 471, was valid or not, did they not?

MR McELWAINE: Yes, and in doing so, they had to examine - - -

GUMMOW J: Wait a minute, by what criterion was it said to be invalid?

MR McELWAINE: Because it limited the right of the press to publish publicly available information and it was therefore in breach of the First Amendment.

GUMMOW J: It was the First Amendment as it applied to the State by the Fourteenth, was it not?

MR McELWAINE: Yes. Could I take your Honours to page 489 - - -

GUMMOW J: We do not get very far with the United States decisions unless we understand the framework in which they occur.

MR McELWAINE: Yes, I appreciate that, your Honour.

GUMMOW J: It is not useful to jump right into the middle. Now, which page should we go to?

MR McELWAINE: Page 489.

KIRBY J: We have to be very careful of United States decisions because, by the world standards, they take the most extreme position in relation to the freedom of expression.

MR McELWAINE: Yes, I accept that, your Honour.

KIRBY J: Every other, or virtually every other right, including rights that are recognised in the International Covenant, melts before the flame of the First Amendment. It is just not the law in this country.

MR McELWAINE: No, and it is sometimes useful to look in the dissenting decisions, one of which I will take your Honours to, which provide a more balanced view. But if I could simply draw your Honours' attention to page 489. They set out a reference to the development of the tort, in particular its recognition in Georgia in Pavesich v New England Life, and the court comments that:

These are impressive credentials for a right of privacy, but we should recognize that we do not have at issue here an action for the invasion of privacy involving the appropriation of one's name or photograph, a physical or other tangible intrusion into a private area, or a publication of otherwise private information that is also false although perhaps not defamatory.

They refer to the Georgia statutes and then they say:

the plaintiff claims the right to be free from unwanted publicity about his private affairs, which, although wholly true, would be offensive to a person of ordinary sensibilities. Because the gravamen of the claimed injury is the publication of information, whether true or not, the dissemination of which is embarrassing or otherwise painful to an individual, it is here that claims of privacy most directly confront the constitutional freedoms of speech and press.

That has parallels, I submit, with what happened in this case, that is, the publication of facts obtained unlawfully which may cause damage to the plaintiff.

KIRBY J: But it is talking about "painful to an individual".

MR McELWAINE: I recognise that. A number of American statutes, in particular the New York Civil Rights Law, only confer the right upon individuals, and hence one see, especially in Prosser's 1960 article, he says that the tort is confined to individuals and he refers to three cases in support of that proposition. Perhaps it is an opportune time for me to direct the Court to those cases and explain why, in my submission, they are distinguishable. Could I first take - - -

KIRBY J: The right to privacy that is recognised in the International Covenant and the European Convention is limited to individuals, is it not?

MR McELWAINE: Yes, I accept that.

KIRBY J: It is not available to corporations?

MR McELWAINE: No. Article 17 of the ICCPR specifically refers to an individual.

GUMMOW J: Now, what this case decided appears from Justice Powell's statement at 497, the second paragraph of Justice Powell's concurring judgment. He says:

I am in entire accord with the Court's determination that the First Amendment proscribes imposition of civil liability in a privacy action predicated on the truthful publication of matters contained in open judicial records.

That is what the case decided.

MR McELWAINE: Yes, yes, those facts were in the public domain and that takes me back to the point made by Justice Gaudron. It may well be that facts about unlawfulness or the operation could be obtained from the public domain, in which case the plaintiff would have no complaint.

HAYNE J: That is, do you say, if by searching the AQIS or other records it were possible to discover the killing methods adopted by your client at its abattoir, your client has no claim?

MR McELWAINE: If they were public records.

HAYNE J: That is, if it is possible to search AQIS records to discover the killing methods used.

MR McELWAINE: Yes, there would be no claim for breach of privacy, as I have attempted to formulate it. There might be considerations for breach of confidence if the information was also confidential.

GAUDRON J: Now, what if we go and get a meatworker, not necessarily your client's employee, who can describe in detail what must necessarily happen in the slaughtering of a possum at an abattoir?

MR McELWAINE: In that case, there would have been no intrusion into the seclusion of the property - - -

GAUDRON J: No, there was no intrusion, I know, that is what I am saying. What is the quality of the information at that point?

MR McELWAINE: He speaks generally of abattoirs, rather than the respondent's premises in particular.

GAUDRON J: Put it in context, "This is what must happen at that abattoir".

MR McELWAINE: Then, logically, the plaintiff would have no complaint, as it has been formulated - - -

GAUDRON J: No, the information - - -

CALLINAN J: Is the information not different from the information contained in a film? It is different quality and different kind altogether, is it not? To show something happening is of quite a different quality or character, it seems to me, from somebody saying what happened.

MR McELWAINE: That is exactly what the plaintiff, the respondent has said in this case. The injunction does not prevent discussion of the matter as public interest, the respondent simply says, "Please do not show the film" which was - - -

CALLINAN J: It is visual as well as merely verbal, and, indeed, that is why the ABC wanted it, so that it would have more impact.

GAUDRON J: So we are not talking about information per se, we are talking about image, ultimately.

MR McELWAINE: In this case, yes.

GAUDRON J: No, I think in lots of these cases. The film star's wedding picture, I think we are ultimately talking image.

CALLINAN J: With a bit of gratuitous voice-over perhaps?

MR McELWAINE: It would depend how the reporter put the film together. But I accept that - - -

KIRBY J: Yes, but let us keep our eye on this fact, that my recollection - and this may be something one cannot take into account - is that the criticism of battery hen cages and the fact that hens were required to stand their entire life on a size of an A4 paper became a public controversy and became a matter of moves for change by reason of the images showing what battery hens had to put up with, and is that not the way a free society moves to a higher plane of sensitivity in these matters?

MR McELWAINE: Most certainly, and that is what is protected under the constitutional right to speak freely on that - - -

KIRBY J: But is that not a problem with your client's assertion that you do not want the film to be shown because the image has a higher potency, that it does run into these notions that sometimes it will be abused, as with the film star's privacy and weddings, but sometimes it will be used to move society to a greater compassion to sentient animals?

MR McELWAINE: But, with respect, your Honour, factually that was not this case. That was not pleaded, nor ever suggested in the courts below. There was no affidavit put on about it. There was no cross-examination of John Kelly about it. It is not a factual issue, I submit, that it is open for this court to reach that sort of conclusion on.

GLEESON CJ: Do you have an argument, based not on any tort of privacy, but upon the right of private property, which seeks not the development of the law that you have been talking about so far, but a development in a slightly different direction, that is to say, one that would not treat the tort of trespass or the illegal act of trespass as terminating the moment you leave the premises with the film you came on there to get? In other words, the argument against you is that there is no complicity on the part of the ABC in the tort of trespass, at least no complicity proved in the evidence, and that trespass was completed before the film came into the hands of the ABC. A possible point of view might be that if the trespasser committed the act of trespass for the purpose of filming what was going on and giving it to the ABC, or somebody like the ABC, to publish, it is inappropriate to regard the relevant affront to your right of private property as ceasing the moment the trespasser leaves your premises with the film in his bag.

MR McELWAINE: Yes, I do, and it is put in this way, and it is the first portion of my written submissions: Australian law has reached the point where a number of judges, single judge decisions, have enjoined not repetition of trespass, but publication of the showing of the film obtained as a result of the trespass, and that commences with Lincoln Hunt and goes through to that most recent decision of Tarca in South Australia, Tarca v Hambrook [1995] 86 LGERA 56, which is referred to in my submissions. I submit that the principle of those cases is as set out in Lincoln Hunt, that is, it unconscionable according to - - -

HAYNE J: But why?

MR McELWAINE: I accept "unconscionable" is a label. It is unconscionable because an offence was committed, a trespass was committed, the obvious purpose was to gain publicity and it is therefore unconscionable to simply sit back and say, "Well, we cannot do anything, the film can be shown".

CALLINAN J: Does not the ABC, in showing the film - and I appreciate what the ABC's charter is as a public broadcaster - get a commercial advantage?

MR McELWAINE: Your Honour is much more knowledgeable about that than me, but yes.

CALLINAN J: If it were not the ABC, the channels with which it is in competition - let us assume it was some other broadcaster and nobody suggests the ABC should be set apart, there would be a big commercial advantage in obtaining it and showing it and charging advertisers for the 10 minutes in the commercial hour during which it is being shown.

MR McELWAINE: Most certainly and I do not - - -

CALLINAN J: So it damages your client and it commercially advantages the broadcaster.

MR McELWAINE: Yes, and I - - -

HAYNE J: Now, is that enough? Do you say that commercial advantage plus damage is enough, or is more in play than those two elements?

MR McELWAINE: With the publication of the private fact obtained as unlawfully or as a result of the trespass or - - -

HAYNE J: We are back to private fact. You attach the label, you rightly call it the label unconscionable to the conduct. Articulate for me, if you could, as best you can, what is it that the publisher does wrong by publishing a tape of the kind now in issue?

MR McELWAINE: The knowingly taking advantage of the wrong done to the plaintiff.

GAUDRON J: We would not need to develop the law very far if that was the question. Knowingly taking of advantage of another's wrongdoing is not very far from the situation in which a purchaser buys knowingly from a trustee in breach of trust, for example, for which there had been equitable remedies for a very, very long time. The problem you have is the "knowingly", the "knowingly" at the time at which the tape comes into its hands.

MR McELWAINE: I submit the appropriate time to look at "knowingly" is just before publication because the very nature o these cases is unless the wronged party finds out about it and acts quickly enough, there can be nothing that is done, the film is published and the harm is done and the initial perpetrator's intention is complete. So I submit one has to look at what was the knowledge of the ABC before publication and, clearly, it had full knowledge of all of the circumstances in Mr Kelly's affidavit.

GLEESON CJ: Where is that alleged in the statement of claim?

MR McELWAINE: It is not, your Honour.

GLEESON CJ: This is a case fought on pleadings, is it not?

MR McELWAINE: Except one can have regard to the evidence, not the precise pleading, especially in the hurly-burly, if I can put it at that, of the urgency of an interlocutory application. One can ask whether there is a serious question to be tried, either set out on the pleadings or on the facts as presented to the trial court. I mean, even Justice Slicer, in his dissenting opinion conceded that in my favour.

CALLINAN J: What has put to you is really very, very close to the analogy that Justice Hodgson drew in Donnelly at page 573, where his Honour referred to the publication of documents obtained on discovery. It would be a contempt of court for the party who obtained them on discover to publish them, and his Honour suggests that by analogy - and he refers to some cases - the newspaper, and his Honour does not refer to any knowing publication by the newspaper - but if the newspapers published them - sought to publish them, then they could be enjoined also.

MR McELWAINE: It is, with respect, also very close to the confidential information cases where the famous example, the notes are blown out of the window and are picked up by the innocent passer-by, that is the example given by Lord Gough in the Spycatcher litigation, and equity extends that far to enforce the breach of confidence because it is unconscionable to allow the innocent third party, once they know that it has been obtained by reprehensible means or in breach of confidence to publish. The whole thrust of the first part of my written submissions is that it is but a small step for this Court to confirm the order of the Full Court simply based by analogy to the confidential information process which is the course taken by his Honour Mr Justice Evans in the Full Court.

GUMMOW J: Where do we get to the knowledge, where do we have a finding about that?

MR McELWAINE: It is in the factual sequence that the ABC was served with the affidavit of John Kelly and knew about the circumstances before publication.

CALLINAN J: And made not the slightest attempt to refute what was in that affidavit.

MR McELWAINE: None.

GUMMOW J: When was your cause of action for breach of privacy complete?

MR McELWAINE: It could not be complete until this Court recognised it. I know that is - - -

GUMMOW J: No, just favour me by considering principle for a minute. When do you say the cause of action is complete?

MR McELWAINE: Once the innocent third party knows the circumstances in which the information was obtained.

GUMMOW J: So there was no cause of action completed at the time this statement of claim was filed?

MR McELWAINE: No. That afternoon or the following morning the ABC certainly - I appreciate the problem your Honours identify of not having a cause of action at that time but, of course, the statement of claim was not pleaded as a breach of privacy case, that has been developed as we have moved along.

CALLINAN J: There may have been. The ABC may have known. There is just no evidence on it. The ABC may have known when it received the tape in the mail.

MR McELWAINE: Well, of course, that issue has not been explored and, again, the threshold test is, was there a serious question to be tried?

CALLINAN J: You might be able to ascertain that way interrogatories, what the state of mind of the ABC was on receipt of the - - -

MR McELWAINE: Yes, if we ever get that far in this case. Could I develop the injunction point now? I appreciate I seem to have started at the wrong end of my submissions. There are two cases, one in the New Zealand Court of Appeal and the other recently in the English Court of Appeal, which have developed Lord Brandon's concept in South Carolina that there is jurisdiction to grant an injunction where someone engages in unconscionable conduct. The first case I would like to draw your Honour's attention to is TV3 Network Ltd v Eveready New Zealand, which commences at page 50 of my assembled bundle.

KIRBY J: Was that the basis of Justice Hodgson's decision or did he rely on another tort, the tort of trespass? Was the taking of the film during the intrusion into the person's home for the purpose of arrest found to be unlawful in that case?

MR McELWAINE: Yes, he said it was arguable at the interlocutory level that the police had breached - - -

GUMMOW J: The search warrants, so what they did was wrong.

MR McELWAINE: Yes, the search warrants, that they acted unlawfully.

GAUDRON J: And that Amalgamated TV Services must have known that or must have suspected that. Does it go further than that?

MR McELWAINE: The furthest his Honour's conclusions goes is, I submit, set out at page 575, Donnelly v Amalgamated TV Services. It is about point B on page 575. He talks about restraining the police. He says:

I believe they could in a proper case be restrained, at the suit of the owner of the documents, from later using that information to their own advantage, or to the disadvantage of the owner, or passing the information on to other persons for them to use in that way; and if other persons acquired such information from the police, knowing the circumstances of its acquisition by the police - - -

GUMMOW J: Well, the answer to Justice Gaudron's question is, yes.

MR McELWAINE: Yes.

GAUDRON J: And his Honour puts it at the time of acquisition, not at the time of use?

MR McELWAINE: With that case, yes.

GAUDRON J: Yes.

MR McELWAINE: I was about to take the Court to TV3 Network Ltd v Eveready New Zealand. That was a case where a mandatory injunction was sought for corrective advertising, about a publication by a well-known TV program concerning some smoke detectors manufactured by the plaintiff. Justice Cooke, as he then was, at page 438, analysed the basis of the jurisdiction, commencing at approximately point 45. He said:

Especially since the mingling of law and equity, which is accepted in New Zealand, the remedy of injunction should be available whenever required by justice. To impose - - -

GUMMOW J: What does that mean?

MR McELWAINE: Equity, at its most basic level - - -

GUMMOW J: You are inviting one's intellectual adherence for that proposition. What does it mean?

MR McELWAINE: I submit that equity - - -

GUMMOW J: We all sit here day in, day out, trying to achieve justice and we would like to think we do so. You do not solve cases by just saying that.

MR McELWAINE: No, but you solve cases by - - -

GUMMOW J: Otherwise there would be no legal system.

MR McELWAINE: With respect, I think that all that Justice Cooke, or President Cooke says - - -

GUMMOW J: There would just be a complete wilderness of single instances.

MR McELWAINE: Yes. I accept that the development of equitable jurisdiction must be principled. I do not accept that it is completely open and one can do what they like - - -

GUMMOW J: Just forget about equities for a minute. The criterion is said to be justice at large.

MR McELWAINE: Well, that is what President Cooke said.

GUMMOW J: I know he said it. It does not bind me. Why should I agree with it?

MR McELWAINE: Because I submit that equitable principle is not frozen in time. One has to be - - -

GUMMOW J: Granted that. Of course it is not. No half decent equity lawyer ever suggests it is. The only people who suggest it is are other sort of people, in my experience.

MR McELWAINE: I submit that, bearing that in - - -

GUMMOW J: But how is purely, purely invocation of "justice", per se, a sound source of legal principle?

MR McELWAINE: Well, at the end, justice is are labelled, or injustice, or unconscionability, are labelled - - -

GUMMOW J: Of course it is, for something else.

MR McELWAINE: Yes.

GUMMOW J: What I am trying to get out of you is what is the something else?

MR McELWAINE: The something else is the individual factual circumstances which are presented in the light of today's standards, not those of yesteryear - - -

GUMMOW J: The individual circumstances of the case?

MR McELWAINE: Yes.

GUMMOW J: Well, that is no principle, you see. That is the problem.

MR McELWAINE: Well, I submit that the courts, at least in England, now in New Zealand, had recognised that unconscionability stands alone as a basis to grant equitable relief, albeit in - - -

GUMMOW J: Well, that is rampant judicial imperialism, it seems to me, rampant judicial imperialism.

KIRBY J: Well, it is at one end of the spectrum. At the other end of the spectrum is the Balham dentist. Somewhere in between there must be a principle. What the Court has to have is your help on what the principle is.

MR McELWAINE: I submit that the principle is to go back to the terms of the statute, which your Honour Justice Kirby mentioned earlier - - -

HAYNE J: And that requires the articulation of what is meant by "just" in that circumstance and articulation in terms that permit of intellectual rather than emotional assent.

MR McELWAINE: Yes, I accept that, your Honour.

GUMMOW J: You might accept it, but then you have to try and do something with it to win your case.

MR McELWAINE: Yes, but I go back to Lincoln Hunt, where his Honour made observations which the Court was taken to yesterday. I appreciate your Honour Mr Justice Gummow - - -

GUMMOW J: They suffer from the same vice, it seems to me.

KIRBY J: But conscience and justice are not entirely devoid of emotion, at least in my view. It is the response of an intelligent legal system to something that causes affront and what we are searching for is some formula that will assist beyond just saying, "Well, it is unconscionable", or, "Well, it is unjust".

MR McELWAINE: The problem with adopting a formula is that one makes it today and one finds it does not fit the facts of the next case.

HAYNE J: But you say it is unconscionable. The question is why, and that is not to be answered by simply saying, "Oh, the facts of the case are A to Z, therefore - - -". There is some intellectual principle which leads you to be able to apply this term to the particular aggregation of facts.

MR McELWAINE: Well, in this case, I have fallen into that error again. But, unlawfulness, trespass, wrongs done to fundamental rights of property of the plaintiff and the use of the fruit obtained as a result can, I submit, be properly regarded as unconscionable in accordance with equitable principle. I cannot put it any higher than that. That is as high as the facts permit me to take it.

GLEESON CJ: Is one way of putting your argument to say, there is not the slightest doubt that if Animal - whatever their name is - Animal Liberation Ltd had been apprehended in possession of this tape the moment before they handed it over to the ABC, they could have been restrained by injunction from doing so?

MR McELWAINE: On the state of the existing authorities, that is so.

GLEESON CJ: What is the principle of law that produces the consequence that the moment after they hand it over to the ABC, nobody can stop the publication of the material, the obtaining of which was the purpose of their trespass?

MR McELWAINE: I say there is no principle of law that stands in the way of reaching that conclusion.

GLEESON CJ: Well, that requires you to attend to the role of the ABC. They say, rightly or wrongly, "We did not participate in the trespass. We did not put these people up to it". Perhaps they say, I think they say, "We acknowledge that if we had put these people up to it, we could be restrained by injunction from publishing the material". But the rights of third parties have intervened.

MR McELWAINE: I put it on the same basis as it has been recognised in the confidential information cases that as soon as the third party knows the circumstance in which the confidence was breached; or that the material was obtained by reprehensible means; or what they found in the street did, in fact, blow out of somebody's office window and was not for public consumption, then they can be restrained and it is but a small step, I submit, to say that the ABC can be restrained by analogy in this case.

GAUDRON J: Well, I should like to question the first step in that process without indicating - I do not know what the answer is, but I want a question. I want to ask this. What is it that makes it so certain that equity would intervene to stop the publication in the hands of the trespasser? Now, I think we have to expose that principle before we can take the next step. Why would the injunction go at that stage?

MR McELWAINE: Because it is incidental to the trespass and the claim.

GAUDRON J: No, what is the principle of equity that would make it go?

MR McELWAINE: In that case, equity would be acting in its auxiliary jurisdiction to make effective the remedy at law or make more effective.

GAUDRON J: Well now, so we are hypothesising in this whole debate that damages for trespass, including, I should have thought, the possibility of exemplary damages in this area, is an inadequate remedy.

MR McELWAINE: That is the basis on which the case is - - -

GAUDRON J: Why is it inadequate? We come back, I think, to something else. Why is it that you say damages, including exemplary damages, is inadequate?

MR McELWAINE: Because it is the publication of the information which, according to the affidavit of John Kelly, could have deleterious consequences - - -

GLEESON CJ: Well, it may or may not be inadequate. It may depend upon whether Animal Liberation Ltd has any money.

MR McELWAINE: I think that is a point which his Honour Mr Justice Wright made in the Full Court. There is never any certainty that even if you get to be awarded damages, you will ultimately recover.

GAUDRON J: Now, let us assume that Animal Liberation has a rich patron who said, "I will indemnify you against all the damages". Why do we think that equity would grant the remedy then?

MR McELWAINE: Well, in this case, there is no evidence that Animal Liberation knowingly participated in the trespass either.

GLEESON CJ: We have been assuming that, but Mr Kelly actually addressed this - somebody addressed this problem in an affidavit. I thought that there was affidavit evidence to say, "Damages would not be an adequate remedy because we will never know who did not buy our product".

MR McELWAINE: That is the point I attempted to make. The publication world-wide would have made qualification virtually impossible to - - -

GUMMOW J: The idea is damage to goodwill. Is that the idea?

MR McELWAINE: Yes.

GAUDRON J: It is not damage to property. It is not infringing the property right, the right of real estate, that is in issue here.

MR McELWAINE: No, but it is economic loss.

GUMMOW J: The business activities that you conduct there.

MR MCELWAINE: It is economic loss.

KIRBY J: But there would be ways of proving that, profit before, profit after.

CALLINAN J: Also it could debase the value of the property itself. That was the point that Mr Justice Rich sought to make about the racecourse, and I thought, myself, quite convincingly, in Victoria Park, because the business you carry on in premises, on land, specifically adapted for that purpose, is affected then the value of the premises will be affected.

MR McELWAINE: In fact, the affidavit evidence, I am simply reminding myself, at paragraph 10 of John Kelly's affidavit, where he says it could be potentially catastrophic for its business and business markets, especially in new markets, because of the sensitivity of Asian markets - - -

GLEESON CJ: But do you need to go any further than to say, if a person trespasses and takes an unlawful film of what is going on in somebody's property, damages may or may not be an adequate remedy? It is not self-evident that they always will be an adequate remedy, so the moment you accept the possibility that damages may not be an adequate remedy, you have to pursue the principle further.

MR McELWAINE: Yes, I do.

CALLINAN J: There is another aspect to the damages, too, I would have thought. Can you get exemplary damages in Tasmania?

MR McELWAINE: I have obtained them in one or two cases. They are not run of the mill.

CALLINAN J: They could be enormous if the conduct involved is quasi-criminal or criminal.

MR McELWAINE: Potentially, they could be.

CALLINAN J: Particularly when you have - I mean, and that may depend upon the means of the other party too, of course.

GAUDRON J: When you say it is economic loss, I think we are getting very close to what is the nub of the issue here. Damages in trespass are very likely an inadequate remedy because the interest you are trying to protect is not your interest in real estate but an economic interest - your client is trying to protect an economic interest - and the law has been very shy of protecting economic interests outside a certain category of cases. Now, I think - - -

HAYNE J: Especially where the same damage could be done, or nearly the same damage could be done, by taking a full page ad in the South China Morning Post, saying, "Do you know that the possum meat you eat today was killed in accordance with the following practices?".

MR McELWAINE: Precisely the same, but one might then ask, where did the information come for the article?

KIRBY J: I think this gets back to Justice Callinan's point earlier, that there is something extra in visual images and oral sounds, I think.

MR McELWAINE: A picture speaks a thousand words, as I think - - -

GAUDRON J: Well, I think there is something else though, and that is I think one really has to identify the interest that you want the law to protect. Now, when you talk about a right to privacy, at least with individuals, the interest that you are seeking to protect is, it seems to me, clear enough, it is the right to individual dignity. When you come to this, what is the interest you are seeking to protect? It is a commercial interest, is it not?

MR McELWAINE: Well, first, it is an interest in property, but, secondly, it is a commercial interest.

GAUDRON J: No, trespass will give you a perfectly adequate remedy for the damage to property and may even give you something more than a perfectly adequate remedy in these circumstances.

MR McELWAINE: Yes, the gravamen of harm in the plaintiff's point of view is the damage to economic interests which, on the evidence - - -

GAUDRON J: Yes, but what are those interests? Are they the interests, for example, to exercise a legal right, exploit a legal right, or what is it? It does not seem to me that we are in any of that territory.

MR McELWAINE: I would say it is the goodwill to its business. It is the ability of the business to continue and to generate profit and to expand into new markets. It is intangible property.

GAUDRON J: Yes, it - - -

CALLINAN J: Plus possible damage to the value of the property itself, the actual place where the abattoir - - -

MR McELWAINE: Yes, there might be some economic loss because the factory closes down and has to be sold to a purchaser on a going-concern basis, yes, I accept that.

CALLINAN J: It is not going to have a utility for any other purpose, presumably, without major modification.

MR McELWAINE: One imagines these are specialised facilities, your Honour.

GUMMOW J: Then the question is, there are economic torts, very finely worked out to protect these economic interests. The question then is, why any more? Why should you not just be left to wear this as part of your economic activity?

MR McELWAINE: If your Honours were in favour of upholding the Full Court's decision on the injunction point as a - - -

GUMMOW J: I am just trying to work out what the interests we are talking about, you see. The interest you have in your goodwill is protected in various ways. You want it to be protected in another way.

MR McELWAINE: Yes.

GUMMOW J: The question is, why should the policy of the law go that far?

MR McELWAINE: The law protects economic interests in a large number of ways - - -

GUMMOW J: This is not secret information.

MR McELWAINE: No.

GUMMOW J: It is not a trade secret.

MR McELWAINE: But it has the potential to do real damage if released and published by the media at will, when they like and to whom they like.

GUMMOW J: Yes, that is quite true. The information is quite true.

MR McELWAINE: Truth is not a defence on the American model to an action of privacy.

GUMMOW J: Just forget about that.

CALLINAN J: The other factor is it has value to the appellant. It has commercial value to the appellant.

MR McELWAINE: Then knowingly gaining an advantage, on your Honour's analogy, from the wrong - - -

CALLINAN J: A commercial advantage.

MR McELWAINE: Yes - - -

CALLINAN J: It is worth money to them.

MR McELWAINE: Doubtless it is.

CALLINAN J: And even the ABC, of course, does sell programs to other people and to overseas.

MR McELWAINE: Yes.

KIRBY J: The battery hen farms had commercial value to their owners and yet the truth, in a sense, came out and, as I understand it, it led to various changes, non-battery free-range eggs, free-range chicken, and lots of other benefits, at least in the view of many people in the community. If the facts are true, why would that not be similar here?

MR McELWAINE: It would have been open to the appellant, before the judges at first instance, to put that sort of evidence and say, "Well, either it affects the exercise of your discretion or there is a public interest in exposing what we do, or we can precisely identify the limits of our constitutional protection", but none of that was done in this case.

GAUDRON J: Were you able to prove - when I say "were you", that is not a question, that is a hypothesis - if you were able to prove that the ABC and Animal Liberation had conspired, read "agreed", between themselves that Animal Liberation would go in there and do whatever was necessary to get this film and the ABC would broadcast it, then you would no doubt have a tort which would sound in damages.

MR McELWAINE: Yes, a recognised tort.

GAUDRON J: Yes. We have moved outside that area. What is it that marks off the area to which we should now go, as it were, on your submissions?

MR McELWAINE: If it is charting our course, this Court confines itself to the injunction point, then according to Justice Hodgson in Donnelly's Case, that is the only effective remedy. There is no remedy in damages. That is all the respondent has. If we chart further and take a privacy course, then one ultimately has to consider, "Yes, well, if there is a new tort, there must be damage", that it is a remedy which can be obtained if that tort is committed. That does raise, I acknowledge this, issues of economic loss and whether one should develop the law that far. But I submit that development of the law is in accordance with the values of society. We value privacy.

GUMMOW J: Yes, we also value public discussion, amongst other things, of mistreatment of animals.

MR McELWAINE: And in the constitutional area, the tort would have no area of application and the ABC would be free to publish without fear of being enjoined or without fear of paying large damages if they put facts to that effect before the Court. It would still be open to them, if that was the course taken by this Court - - -

KIRBY J: Why do you need to actually positively prove that? Why would one not infer that, just as earlier, battery hens and pig farms, and so on, became public discussion, nobody had to go to courts and put on extra facts and say, "We are solemnly trying to talk about this". This is just the nature of a free society, that unless there is some rule of law or statute that forbids it, it is all in the open domain, and that is how ideas are progressed, particularly by vivid images.

MR McELWAINE: Yes, and that is how our constitutional representative democracy has developed to date and we - - -

KIRBY J: There are vegetarians in Australian society and they think all organised killing of sentient animals is cruel.

MR McELWAINE: Yes, but also Mr Levy thought that shooting ducks was cruel, but he did not succeed on his absolute right to interfere with that process as a consequence. One must set reasonable limits of regulation. We are now moving on to my point about a balancing of interests. It is a task which is obviously not unfamiliar to this Court, but not unfamiliar, for example, to the Supreme Court of Canada which has had to develop principles about balancing the right of free speech against other rights where people claim to have been wronged.

The case that I have included in my materials about that is Retail, Wholesale & Department Store Union v Dolphin Delivery which is at page 40 of the material that I have handed up. It is only a portion of the decision. This was a secondary picketing case and the issue was whether an injunction could issue to restrain the secondary picketing of the business which was the subject of the pickets. At page 188, in the decision of the Court, given by Justice McIntyre for the entire court, this balancing of interests is referred to, about halfway down, where he says - - -

GLEESON CJ: Could you give that page number again please, Mr McElwaine?

MR McELWAINE: It is page 42 of my bundle; it is page 188 of the decision.

GLEESON CJ: Thank you.

MR McELWAINE: Halfway down, the question is this:

Can an injunction based on the common law tort of inducing a breach of contract, which has the effect of limiting the Charter right to freedom of expression, be sustained as a reasonable limit imposed by law in the peculiar facts of this case?

A little bit further down - in fact, the last paragraph on the page:

From the evidence, it may well be said that the concern of the respondent is pressing and substantial. It will suffer economically in the absence of an injunction to restrain picketing. On the other hand, the injunction has imposed a limitation upon a Charter freedom. A balance between the two competing concerns must be found. It may be argued that the concern of the respondent regarding economic loss would not be sufficient to constitute a reasonable limitation on the right of freedom of expression, but there is another basis upon which the respondent's position may be supported. This case involves secondary picketing -

and then - I have only given your Honours extracts of this decision, at page 44 of my bundle, simply extract the conclusion, which again is in the middle of the page, where his Honour concluded:

I would say that the requirement of proportionality is also met -

that is that it -

is an interim injunction effective only until trial when the issues may be more fully canvassed on fuller evidence. It is my opinion then that a limitation on secondary picketing against a third party, that is, a non-ally, would be a reasonable limit in the facts of this case.

GUMMOW J: Yes, well, this is like New York Times and Sullivan. It is applying a constitutional requirement to the common law.

MR McELWAINE: Yes, and balancing, which is the point that your Honour Justice Kirby was making. There is, of course, a right to debate battery hens and, no doubt, possum slaughtering and, no doubt, animal slaughtering as well. The question is where this Court strikes the balance, having regard to the constitutional imperatives and the importance of free speech. I accept that free speech, of itself, even absent the constitutional concept, is very important in our society.

KIRBY J: Well, I have to tell you that those facts and the fact that this Court, in the constitutional so-called free speech or no inhibition cases, is a factor that is working, in my mind, against innovation against the background of where the law on privacy stands and when one looks at other countries which have introduced either a general tort of privacy by statute, or have developed it in different ways, it has been done by legislatures which can strike this balance or at least give some guidance to courts as to how it can be done.

MR McELWAINE: Except with respect to New Zealand. There is the constitutionally entrenched right of freedom of expression but no constitutionally entrenched right of privacy. There is a privacy Act but it has a fairly narrow sphere of operation and precisely that balancing exercise was undertaken by Justice McGechan in Tucker v News Media Ownership Ltd, which commences at page 69 of my bundle. Now, the New Zealand cases have only developed the tort so far as the publication of the private facts is concerned. That is the second Prosser - - -

GUMMOW J: That is right. That is why it is so important to follow the analysis Justice Gaudron was putting to you. The interest that you seek for protection is fundamentally different.

MR McELWAINE: Yes, I accept that.

GUMMOW J: And it is not one to which the New Zealand courts have adverted.

MR McELWAINE: Except to the extent that they have recognised a tort of privacy on the American model and they are a comparable common law jurisdiction as well.

GUMMOW J: But the Americans do not recognise this value either in their tort of privacy except, possibly, Prosser's category 4 which is really passing-off sponsorship - commercial value.

MR McELWAINE: Perhaps even Prosser's category 3, painting the plaintiff in a false light. I mean, one can imagine that that could cause all sorts of damage including economic damage even if it is not defamatory. Could I simply - I will not read the full passage, but simply direct your Honours' attention to the balancing exercise undertaken, which commences at page 734. It is the last paragraph commencing at line 45 where his Honour balances the need to "preserve freedom of speech" against other interests, and on page 735, concludes, notwithstanding that, that:

The protection of personal privacy is entitled to weight. Whether or not it is an independent right capable of protection by tort action, it is certainly a factor which can be taken into account where appropriate by a Court exercising such a judicial duty as determination of overall justice.

This is a difficult exercise, I concede that.

GUMMOW J: Now, that decision is considered later, is it not, in P v D?

MR McELWAINE: Yes, it is.

GUMMOW J: What happened in the end there is apparent at page 601, paragraph [34].

MR McELWAINE: Yes. in accordance with the American model, "disclosure of the private facts must be a public disclosure", must be "highly offensive", and so forth, but they are requirements for Prosser's second category, not Prosser's first category.

GUMMOW J: All I am saying to you is, that is how far New Zealand has gone at the moment, and no further, and it is not far enough for you.

MR McELWAINE: No, I accept that.

KIRBY J: And in this country the Law Reform Commission proposed a statutory wrong of unfair publication which involved publication of private facts which are very carefully defined defences, and so on, and that was 15 years ago and nothing has been done to implement it - 1979, I think it was.

MR McELWAINE: Well, it was 1979, your Honour.

KIRBY J: It was 20 years ago.

MR McELWAINE: I suppose the ultimate issue is, does one always defer to, in the, perhaps, sanguine expectation, that there will be legislative intervention. Why should that factor inhibit the development of the common law in this....? Ultimately, I suppose, it is a matter for each of your Honours to - - -

GUMMOW J: No one has taken us to the Commonwealth Privacy Act. Is there anything to be gleaned from that?

MR McELWAINE: The Commonwealth Privacy Act is limited to information held by government agencies and quasi-government agencies - - -

GUMMOW J: I appreciate that, yes.

MR McELWAINE: And to credit reporting. It has no wider sphere of operation.

KIRBY J: But it has recently been extended to the private sector and the Privacy Private Sector Act.

MR McELWAINE: Yes, the information privacy principles.

KIRBY J: But it is information privacy.

MR McELWAINE: Yes, not a generalised right of action for invasion of privacy as, indeed, I have set out in my submissions, each of the statutes in each of the States, none of them deal with the hard issue that we have been debating, that is, privacy per se.

GLEESON CJ: Would your case be any different if, instead of this film having been taken by somebody apparently breaking in and doing some damage to the integrity of the building, the film had been taken in a clandestine fashion by somebody who was invited onto the premises and simply took with him a secret device to make films of what went on there. Suppose, for example, that somebody from Animal Liberation, or a person whose sympathies lay with Animal Liberation, was on the premises as a mechanic to fix some machinery so there was no element of trespass involved, would your argument be any different?

MR McELWAINE: Well, I hesitate to agree with your Honour's proposition that there is no element of trespass because some cases have dealt with the proposition about whether if the initial invitee goes totally outside of the terms upon which they were permitted on the land, they would, in fact, become a trespasser. But, no, the short answer is I would say my case is not different because there is still an abuse, albeit a different form of abuse, an abuse of the terms upon which the person was let onto the land and the token of clandestine fell presumably for the same purpose as the person who breaks and enters.

GLEESON CJ: What you are really complaining about in terms of harm is commercial embarrassment, is that right?

MR McELWAINE: And consequent economic loss which could - - -

GLEESON CJ: Yes, the same sort of complaint that a sausage manufacturer might make if somebody filmed the process of sausage making, as Bismarck once remarked.

MR McELWAINE: Yes.

KIRBY J: And yet the use of hidden films in suitcases has been the means by which some of the most terrible wrongs in the world have been revealed, such as the Talibans' treatment of women. Had we had such devices in the 1930s, perhaps the victims who died in the Holocaust may have had their stories on the front pages earlier than they were. So that really one has to be very careful about developing a new tort, which is what you are urging us to do, that is, as all of its parameters are not defined, which could have a chilling effect on what will often, though not always, be embarrassing, invasive but important information.

MR McELWAINE: Yes. I fully accept, as I have set out in my submissions, the importance of exposing misconduct in the public interest if we accept your Honour's analysis in the Spycatcher Case, or iniquity if we accept the analysis of his Honour Justice Gummow and of the Full Court of the Supreme Court of South Australia in the Sullivan v Sclanders' Case because they prefer his Honour Justice Gummow's approach. It would obviously be reprehensible, for example, to restrain the publication of crimes recently committed in Bosnia or Yugoslavia, but there are countervailing public interests. The important factual distinction, I submit, in this case is no evidence at all, in fact refutation, of misconduct or unlawful activity. It takes this case completely outside of those which I would prefer to categorise as standing alone as justifying publication.

The media sometimes says, "We'll publish and be damned", and judges say, "The media is of course subject to the law and that's not quite correct", but they are easy cases where there is a serious misconduct. This might have been an easy case if the evidence was before the court below that there were no proper licences or people who were not properly skilled were doing the work or the food was kept in unhygienic circumstances and it was a threat to public health, that that makes the case a lot easier from that perspective, I submit.

Apart from the constitutional point, that closes my submissions. I would simply prefer to defer to the learned submissions from the Solicitor-General for the Commonwealth unless there is any other matter the Court wishes to raise with me.

GLEESON CJ: Thank you, Mr McElwaine. Yes, Mr Solicitor.

MR BENNETT: If the Court pleases, I propose to deal with three topics. The first is the nature of the rights to an injunction in circumstances where there has been a tort or breach of the law. The second is the extent to which the constitutional right of freedom of political speech impinges on that equitable right. The third, which I will deal with quite briefly, is the question of the new tort of invasion of privacy. In relation to the first two of those submissions, I will be supporting the submissions of the respondent. In relation to the third, I will be supporting the submissions of the appellant.

GUMMOW J: Why do you come here to talk to us about the general law, Mr Solicitor, as an intervener.

MR BENNETT: A number of reasons, your Honour. I have some written submissions I can bring out in relation to this. Under section 78A of the Judiciary Act, once there is a matter arising under the Constitution, the right of intervention is general. The language of section 78A is:

(1) The Attorney-General of the Commonwealth may . . . intervene in proceedings before the High Court . . . being proceedings that relate to a matter arising under the Constitution -

Secondly, the first of the areas on which I propose to make submissions to the Court is an area which is ancillary to the constitutional debate, because one needs to know what the alleged common law equitable rights are in order to understand how the freedom of political communication impacts on it.

Thirdly, the Commonwealth has an interest in general - and this answers your Honour's question why, as opposed to by what right - in the protection of confidential information belonging to the Commonwealth and, conversely, in the principles applicable where information of citizens which is confidential to them needs to be obtained by the Commonwealth. So in both areas on both sides of the controversy, the Commonwealth has a significant interest in the development of legal principles.

KIRBY J: Do you say you have a written submission on this, because I would like to see it. I had not thought of that third point. The Commonwealth's interest is to go back and re-run Commonwealth v John Fairfax and to ensure that these media interests do not get the secrets of the Commonwealth, is that it? I never thought of that. I am glad Justice Gummow asked the question.

MR BENNETT: Your Honours, I have nine copies of the submissions. I did not distribute them because I was hoping not to be asked the question.

HAYNE J: To the extent that you depend upon the first argument, Mr Solicitor, it would seem to me that if you choose to meddle in the litigation, costs ordinarily ought follow that event. If you seek to intervene in the matter generally, then it is a case that the Commonwealth brings its wallet as well.

MR BENNETT: Your Honour, I do not want to spend a lot of time on that issue, but we would submit where additional costs are caused to the parties by an intervention, of course the Court has that power. In this case it is unlikely that significant additional costs would be incurred because I certainly do not propose to be on my feet after 4.15 this afternoon.

GUMMOW J: I thought you were going to say 12.45.

MR BENNETT: I will not say that, your Honour. So the costs incurred to the parties are the fairly minimal costs of dealing with our submissions and so on prior to this hearing. Does your Honour wish me to develop that further?

HAYNE J: It is a matter for you, Mr Solicitor.

MR BENNETT: Your Honours, I only wish to develop it if I am about to be stopped.

GUMMOW J: You did not mention the interests of at least some political officers of the Commonwealth and their rather symbiotic relationship with newspapers and television proprietors. Some people have expressed the view that this country runs on leaks, calculated leaks.

MR BENNETT: That is no doubt a matter that would be taken into account in individual cases in dealing with the principles that flow. The starting point for my first proposition is that where one is dealing with illegally obtained or tortiously obtained information, then equity will protect or prevent where necessary the use of that information by injunction and will do so where necessary in the hands of third parties.

If I can just outline the submission first and then come to the detail of it, it corresponds very closely to what the Chief Justice has put to a number of my learned friends. We then say that because an injunction is always a discretionary remedy, all the matters which have been debated at great length in these proceedings, whether the information is private - whatever that means - whether it is confidential - whatever that means - whether the user is to obtain some economic benefit, whether the loss suffered by the victim is a loss which is effectively compensable by damages, whether the third party has knowledge of the details of the tort or the crime, whether the information could be obtained elsewhere, all those are factors in relation to the discretionary judgment but none of them affect the principle.

GAUDRON J: Does not that rather assume that equity is all discretion and no principle?

MR BENNETT: No, your Honour, because - - -

GAUDRON J: Then I take it at some stage you will tell us what is the relevant equitable principle that is governing this situation?

MR BENNETT: The principle, your Honour, is that where there is a tort or a crime committed, there is power to protect the victim in relation to the consequences of that tort or crime. That is putting it in the most general way.

GAUDRON J: Yes, that much I can understand, but it seems to me in the circumstances of this case there is a clear tort of trespass, the consequences of which are infringement of the.....and the damage to the bearers and what have you. Query is there a tort or crime in taking photographs?

MR BENNETT: The taking of photographs on the facts of this case was enabled by and directly consequential on, and indeed the purpose of, the crime and the tort.

GAUDRON J: One knows that, but I have a lot of trouble with people who keep insisting on taking photographs of me when I particularly loathe that practice. There would be a number of people in this Court to whom I have had to speak severely about this practice on more than one occasion. I do not understand that the law protects me in that regard. I would be grateful to learn that it does and I think one has to distinguish between the trespass and the taking of the photographs.

GLEESON CJ: Your argument is that Justice Gaudron would fail but on discretionary grounds?

MR BENNETT: It would depend on the circumstances. If the photographer was to break into her home and take a photograph there, even if it were the same photograph that could be taken outside her home or in the street, that might be a discretionary reason why one would not grant an injunction, but there would be jurisdiction and power and there is a principle which would permit the granting of the injunction there because of the breaking into her home which would not exist if the photographer merely confronted her in the street. That is the effectual principle.

GAUDRON J: Why would it go the extra distance? I mean, is it because the tort of trespass is inadequate to protect some interest other than the interest in the property?

MR BENNETT: Yes, your Honour.

GAUDRON J: But what is that interest and why is it different when I am in my home, when I am on the footpath, when I am at a social function or when I say, "Please stop it"? What makes the difference?

MR BENNETT: The difference is this, your Honour, and I concede fully that it may well be on the facts I have postulated that an injunction would be refused on discretionary grounds because it could have been obtained aliunde and that is within the equitable principle of damages or inadequate remedy or that there is no irreparable harm or something of that nature, but the underlying legal principle that permits the granting of the injunction, subject to that discretion, or subject to that consideration, is present in order to protect the integrity of private property.

GAUDRON J: No, it is not. It cannot be to protect the integrity of private property. It has got to be about - and even when you give your discretionary considerations, it has got to be about protecting the dignity of the individual. If you think about it you would readily assent that if somebody breaks into my home and finds me doing something that is essentially private - and the picture could not otherwise be taken - an injunction would go, on your argument, but it would be going because there is another interest being protected and it is not simply the interest in your property.

The same would be true if one went into any place which is traditionally thought to be private, like the ladies' room or the gentlemen's room, would it not?

MR BENNETT: In those cases, there are a number of different principles that may come into operation but the principle which arises in this case is simply the principle of dealing with the consequences of the tort.

GAUDRON J: No, it is not the consequences of the tort. The tort was the means to an end. The consequences of the tort, as it is properly understood, well, breaking the land - - -

MR BENNETT: No, it goes further, your Honour. One of the reasons one is entitled to the integrity of one's real estate is that one can do things on that real estate which are not seen by the public. That is one of the purposes of owning real estate. It is one of the rationales behind the law of trespass. The law of trespass is not just to protect the soil from being tamped down when the trespasser steps on it. The law of trespass is to protect the right to go on to that land, it may be something which is a valuable- - -

GAUDRON J: It was to protect possession, ultimately.

MR BENNETT: Yes.

GAUDRON J: It was to protect you against invasion with the aim of obtaining your land from you, I mean, originally.

MR BENNETT: And more than that, your Honour, and to protect your integrity while on your land from assault or burglary or anything else.

GAUDRON J: You did not need trespass to do that. You never needed trespass to protect you from assault.

MR BENNETT: No, your Honour, one did not, but it certainly protected one from the opportunity for assault.

GAUDRON J: It may well be that trespass did serve a subsidiary purpose, but would it be any different if you went into the private area - well, let us say you go into a public place where traditionally there is a degree of privacy. Let us say you go into a public hospital ward, you are not trespassing, it is open to the public, but at that point you photograph people in stages of terminal illness. Would your equity operate at that point?

MR BENNETT: Yes, your Honour, because the licence to enter the hospital would not include a licence to enter for that purpose so one would become a trespasser when one started taking the photographs and so the difficult problem would arise- - -

GAUDRON J: But it would not operate in the Victoria Racing Club situation.

MR BENNETT: No. The Victoria Racing Club situation - the controversy there is whether it is covered by the law of nuisance and it may well be that it is. The discussion about the Balham Dentist Case is a useful example of that. The problem with nuisance is that it requires an act about an adjoining land holder rather than a mere member of the public and the difficult case is this one: suppose there was a window on to the street from the abattoir; there were curtains on the window designed to prevent a view; the curtains had a gap in them and someone standing on the street used a camera to take a picture through that gap. That would be the difficult case.

We do not need to answer that decision today. Whether or not there is a principle that would operate might involve a number of difficulties which your Honours do not need to consider, but here one does not have that problem. Here one has, on the evidence, an admitted trespass, an admitted crime by some person unknown and one has, on the evidence - I do not want to make submissions about the evidence, but on the facts, as found - inferences which can be drawn about whether the appellants knew or ought to have known that some illegal activity had taken place at the relevant time.

Whether what was actually filmed is of particular private, confidential or other value is merely, we would submit, one of the factors which would be taken into account in deciding whether the protection should be given. Let me give a homely example.

GAUDRON J: Why is it relevant even as a matter of discretion?

MR BENNETT: Because, your Honour, an injunction is always discretionary.

GAUDRON J: I know it is always discretionary but that does not mean that everything is relevant and everything is irrelevant to the exercise.

MR BENNETT: No, your Honour.

GAUDRON J: Things become relevant because something makes them so, and I would like to know what it is in law that makes this particular issue relevant to the exercise of the discretion.

MR BENNETT: Perhaps I can answer by giving an example the other way and then by formulating the principle based on the two. Suppose one breaks into a private dwelling house, conceals a camera, but all that one ends up photographing is a door, a normal, standard internal door. One ends up when one takes the camera back with this photograph of the door. That photograph is of no particular intrinsic value, nothing peculiar to the premises about it. But the photographer might choose to use it as an example of photographic art at an exhibition or perhaps in a political advertisement saying "Show the government the door". There might be ways in which it could be used.

If one were to seek an injunction restraining the use of that photograph, the Court would be faced with two principles. It would have to balance vindicating the rights of private property, the discouragement of trespass and crime on the one hand, and the fact that the use was trivial and not capable of doing any damage on the other. They are considerations it would have to balance and they are relevant because they are relevant to the balancing of the question whether a discretionary remedy should go.

GAUDRON J: The premise is that the damages at common law are an inadequate remedy. That is the first bit we get off. We do not seem to be in that category when you talk about the picture of the door.

MR BENNETT: No, your Honour, one is not.

GAUDRON J: We seem to be well outside the parameters.

MR BENNETT: Yes. This is of course, on the way the plaintiff puts its case, a case where one might draw the conclusion that damages were an inadequate remedy. The difficulty of measuring them, the fact that they are overseas, all those - - -

GAUDRON J: Exactly. So the door is not a good example to illustrate your principle.

MR BENNETT: Your Honour, it illustrates it this way, in that it is a case where damages are an adequate remedy because damages are nominal or perhaps exemplary but not affected by the use of the door. So a lot of the matters which I have described as discretionary come under the well-known equitable heading of "Are damages an adequate remedy?", which is of course one of the - - -

GAUDRON J: No, that is not a discretionary matter.

GUMMOW J: That is a basic matter.

GAUDRON J: That is a basic matter. It just seems to me that people have to get out of their minds the idea that everything about equity is discretionary.

MR BENNETT: I do not suggest that, your Honour.

GLEESON CJ: But the principle that you said you were contending for, before you get to the discretion, the basis of the power to grant the injunction was that equity will prevent illegally or tortiously obtained information in the hands of third parties being used to damage the victim.

MR BENNETT: Yes, information or material, your Honour. It may go to something beyond information.

GLEESON CJ: Third parties, as I would understand it, would include fourth parties or fifth parties. In other words, it does not matter how far down the chain.

MR BENNETT: That is so, your Honour.

GLEESON CJ: You have not included in that principle anything about the knowledge of the third party.

MR BENNETT: I do not for this reason, your Honour, that equity already has doctrines that deal with that which would be applied in this area. It does not protect a volunteer, it does not protect someone with notice, it does protect a bona fide purchaser for value without notice. Those principles can be readily applied in this area. Here one has, on the evidence as I understand it, a volunteer who might well be inferred to have notice; might not.

GUMMOW J: There is a discussion about these ideas in Johns v ASC. Do you know that case?

MR BENNETT: Yes, your Honour.

GUMMOW J: About third parties. It is not, as that case points out, automatically that the whole of the structural priorities with real property are immediately translated into this field.

MR BENNETT: No, but that is the sort of principle that would be applied in this area. The principle of equity has already applied. In a sense, when one looks at whether this principle is a development or a mutation - Justice Kirby I think said this morning that one man's development is another man's mutation - one way of looking at it is to imagine - - -

KIRBY J: I would never have used the expression "man".

MR BENNETT: I am sure your Honour did not, and I apologise for it. I think the original quotation from which the expression was derived used the expression "man".

KIRBY J: Earlier times.

MR BENNETT: Yes. If one imagines a square with four quadrants, the top left-hand quadrant is the case where there is a simple breach of confidentiality. One can restrain the person who is going to abuse the confidence. The top right-hand column says, "We extend that to third parties with notice or volunteers" - Prince Albert v Strange, Fairfax and a number of other cases. On the second line, in the left-hand quadrant, one has the Lincoln Hunt-type of case, where there is a crime or tort committed and one restrains the offender or tortfeasor from using what has been obtained. Why is there any difficulty in putting a tick in the fourth box, which is Lincoln Hunt information, in the hands of a third party, as we have done with confidential information in the hands of a third party?

GLEESON CJ: So you are assimilating confidential information and information that has been obtained illegally or fraudulently.

MR BENNETT: Yes, your Honour.

GLEESON CJ: Perhaps you can come back to that at 2.15 pm.

MR BENNETT: Can I just answer your Honour this way, before the break? Assimilating may be the wrong word. Analogy is, perhaps, a better word. What I am submitting is that the general equitable doctrines that let one move from the top left-hand to the top right-hand box, and say once we protect confidential information in the hands of the confinee, we will do so also in the hands of a third party.

GAUDRON J: But we do not say all third parties in that area and we still say something about the nature of the information. If it has too many third parties, it loses its confidentiality and loses its protection.

GUMMOW J: Regardless of whether the third party is a purchaser or not.

MR BENNETT: Well, there are all sorts of principles which apply there. What I am suggesting is- - -

GAUDRON J: And they are not all simply discretions.

MR BENNETT: No, but whatever the principles are, they are well adapted to the Lincoln Hunt-type of protection of illegal or tortious information.

GLEESON CJ: How long do you expect to require for the completion of your submissions?

MR BENNETT: I would think half to three-quarters of an hour, your Honour.

GLEESON CJ: How long do you think you will be in reply, Mr Tobin?

MR TOBIN: Ten to fifteen minutes, your Honour.

GLEESON CJ: The third case in the list, or the third group of cases in the list, will not be taken before 10.15 tomorrow morning. We will adjourn now until 2.15 pm.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

GLEESON CJ: Yes, Mr Solicitor.

MR BENNETT: Your Honours, the point I was making before lunch is that the equitable doctrine which I am describing is necessarily subject to general equitable doctrines which would, of course, qualify it. Laches is one of this example, unclean hands is another, and another is that it will not go if damages are an adequate remedy. There is a good example of that sort of principle, which is relevant to this type of case, in a decision which we have not given your Honours a reference to. It is called Anchor Brewhouse Developments v Berkley House (Docklands) Developments (1987) 38 Build LR 82. It is a decision of Justice Scott in the United Kingdom.

That was a case involving oversailing cranes, where, in order to move materials from the street to a building site, the crane was swivelled over adjoining land, hundreds of feet, no doubt, above the ground, and the adjoining owner was able to obtain an injunction. Of course, there was no damage. The only damage being suffered was the loss of the ability to charge the builder a fee for having the cranes swivel over his property. But the court said the very fact that damages could not be ascertained in that way was the reason why the court would restrain the tort. Now, that is restraining the commission of the tort, rather than pursuing the proceeds, as here.

CALLINAN J: There is a Queensland decision, too: K.D. Morris - - -

MR BENNETT: Yes, that is right.

CALLINAN J: - - - in the 1970s, which is to the same effect.

MR BENNETT: Yes. And there is one in New South Wales called LJP Builders v Howard Chia.

CALLINAN J: K.D. Morris is one of the parties to the Queensland case.

MR BENNETT: I think K.D. Morris was actually cited in the Anchor Brewhouse Case. It is an example of how the general equitable doctrines can apply. There is a special problem in relation to bona fide purchaser for value without notice, because we are not dealing with strictly proprietary rights. That was pointed out by your Honour Justice Gaudron in Johns v ASC [1993] HCA 56; (1993) 178 CLR 408, page 460, and by your Honour Justice Gummow in Breen v Williams (1996) 186 CLR 71, at 129, as well as by Justice Helsham in Wheatley v Bell (1982) 2 NSWLR 544.

The second point I want to make about it is this: that there is some analogy with the equitable doctrine developed by this Court in Black v Freedman & Co [1910] HCA 58; (1910) 12 CLR 105 which is a very early High Court case. That was a case where money was stolen and the thief gave it to his wife, and the Court said - I am sorry, of course, money is different to a property. If property if stolen and given to someone else, it remains stolen property, it remains the property of the owner. But with money, title can pass, and one can get a better title than the transferor. So the ordinary remedy of saying "It is my money" was not available to the plaintiff - put the money in the hands of the wife.

The Court held that the money was affected with a trust. There was a trust, and the trust carried through to the property in the hands of the wife. That is an example of equity developing doctrines to protect property where the common law does not do so, and, it is again - here, the fact that one cannot identify a form of property of the plaintiff which has been taken is one of the reasons why one needs to develop equitable remedies to protect the proceeds of the tort.

GLEESON CJ: But what significance do you attach to the concession that the information is not confidential?

MR BENNETT: None, your Honour. None for this purpose. And what could - - -

GAUDRON J: It is sufficient that it was illegally obtained.

MR BENNETT: Yes, your Honour.

CALLINAN J: Mr Solicitor, is information, with respect, the right description of what we are talking about?

MR BENNETT: No, your Honour, it is not. That is one of the difficulties, and that is why one needs to put the doctrine in slightly more general terms. It is the fruits of a deliberate tort.

CALLINAN J: But transformed into a film. It is not a recitation of facts; it is the making of a visual image of a sequence of events. I do not know whether "information" is necessarily the only, or the correct, term to use in respect of it.

MR BENNETT: It is not a proprietary interest in that sense. The proprietary interest interfered with was the land. One could give other examples. Suppose one had a very large property in Western Australia, say, which was the best place in the world for filming an eclipse, and one could not get as good a view of the eclipse from anywhere in the world except the plaintiff's property, and the plaintiff licenses people to come on to film it, and charges a fee. Someone trespasses on the property and takes a film of the eclipse. No one would suggest the plaintiff owns the eclipse in any sense, but we would submit that the plaintiff would be entitled to relief against the use of the proceeds of the trespass.

Your Honour Justice Gaudron asked me before lunch - although your Honour did not use this word - about the nexus between the trespass to the property and the real interest of the plaintiff which suffered. In my respectful submission, both in the eclipse case and in this case, the nexus is provided by the fact that it is the purpose of the tort to take away something which is of harm to the plaintiff if it is taken away. Either the loss of profit the plaintiff could have made or the revelation of what the plaintiff was doing in private on the plaintiff's own property. Once the tort is directed to that, one has sufficient nexus between the trespass and the interest of the plaintiff. One does not defeat it by saying the damage was to a bit of the ceiling, whereas what the plaintiff is trying to protect is the confidentiality it does not have.

Finally, may I say this, on this point. If one thinks of it, again, in terms of my four boxes - and the box I am trying to establish is the bottom right-hand box, the "information in the hands of third parties obtained by criminal or tortious activity", there are three cases which, we would submit, go a long way towards supporting that right. There are three decisions of State courts: one in South Australia, one in Queensland, one in New South Wales. The one in South Australia is Sullivan v Sclanders [2000] SASC 273; (2000) 77 SASR 419. Your Honours need not go to it - it is there.

That was a case involving a dispute between two factions in a proprietary company. A director who represented one faction was staying in the home of a friend, in London. While he was there, the friend deliberately took him out, away from the house, on some pretext, while the friend's wife, the hostess, went to his briefcase, found some papers about the affairs of the company, photocopied them and sent them to the other faction in the company. It was held that the crime of taking it, or - sorry, the tort of taking and then returning the property, was sufficient to support the equitable relief.

The point about the case is that it is not an abuse of a fiduciary relationship; there is no fiduciary relationship between guest and host. It is rather a deliberate tort, trespass to property - the taking of the papers and returning them, opening the briefcase, and so on - and the abuse of the proceeds is restrained in the hands of the third party. The second is Franklin v Giddins - - -

GAUDRON J: Does not the decision, though, turn upon the confidential nature?

MR BENNETT: That was certainly treated as a factor, yes, your Honour, but it did not need to be, we would submit.

GAUDRON J: Exactly. If it did not need to be, why was it?

MR BENNETT: Your Honour, because courts move slowly and by analogy, and many courts have looked upon that as being a factor.

GUMMOW J: But if you are right, Mr Solicitor, it would have been enough in The Commonwealth v John Fairfax, would it not, that there were breaches of the Commonwealth Crimes Act?

MR BENNETT: Yes, your Honour. Subject to - - -

GUMMOW J: Confidence was not good enough, because it had been booted about, but it would have been enough, irrespective of copyright, that there was the illegal obtaining.

MR BENNETT: Yes. And it was the booting about which caused the first part of the cause of action to fail.

GUMMOW J: But it would not cause your presently advocated cause of action to fail?

MR BENNETT: No, your Honour, it would not. Copyright is a very unsatisfactory remedy in this area. If I have an art collection, and a burglar breaks into my house and photographs two paintings, one of which is still in the copyright and one of which is out of copyright, surely my ability to restrain the burglar or a successor from him showing the photographs of the paintings should not depend on whether the painting is in or out of copyright. It is something I am entitled to keep in my house and show to whomever?

The second case is Franklin v Giddins (1978) Qd R 72. This is a case which is difficult to characterise in the way the court characterised it, but the way the court did characterise it, it fits within what I am submitting for. It was a case where the plaintiff had developed a particular plant - - -

CALLINAN J: A nectarine.

MR BENNETT: Yes, a nectarine. It was before the registration of plant varieties. A person stole some cuttings from his property. The person was on the property lawfully as an employee, but the cuttings were not in his possession in any fiduciary way, and then used the cuttings to make his own nectarines. The plaintiff applied, among other things, for delivery up of the nectarines bred with these stolen cuttings.

One of the issues was that the new nectarines were the property of the thief and his wife, and the question was the extent to which the remedy would go against the wife. The court held, again, that there had been a trade secret stolen and, in the circumstances, equitable relief was available against those people. Again, it is put in the form of trade secret and confidential information which might be questionable, but the case - - -

GAUDRON J: I would have thought this was precisely what you would think was confidential. An employee is entrusted with his employer's information, if you like, to be used for the benefit of the employer. I would have thought this was a classical case for the intervention of equity.

MR BENNETT: His Honour held that it was not, on the facts that he - - -

GAUDRON J: I know, I saw that. But I would have thought it was a classical case for it.

MR BENNETT: Had it been decided on that basis, of course, it would have been different.

CALLINAN J: And, with respect, what her Honour has said is quite correct. The real issue is that case, and the argument, I think, by the defendant was that the defendant owned the wood, the actual fibre, that had been generated by the grafting of the nectarine, and that to give the plaintiff the orders that the plaintiff sought would involve the destruction of property, of actual physical property that was owned by the defendant. I do not think, with respect, that there is a real issue about confidentiality. I think everybody accepted and assumed, as her Honour has said, that naturally it was confidential. I think the ownership of the actual fibre was the matter that was particularly argued in that case.

MR BENNETT: Yes. But again, your Honour, it can be put, we would submit, on the basis of a following through of protecting the plaintiff against - - -

CALLINAN J: It is very like the other case you referred us to, Black v Freedman. Stolen property.

MR BENNETT: Yes.

CALLINAN J: And you might not have even needed the confidentiality.

MR BENNETT: Except they are both cases where the legal title has passed. Or the legal title in what the plaintiff now wants is in the defendant, not the plaintiff.

CALLINAN J: You can never get a legal title to stolen property.

MR BENNETT: You can if it is money, your Honour.

CALLINAN J: Which?

MR BENNETT: Money is different. Because if I steal your Honour's car, it does not matter how far down the line it passes. Subject to statutory protections, your Honour retains title of it. If I steal your Honour's money, and that money passes to third parties and is used for other purposes, it ceases to be your Honour's money. Your Honour could not say, "I have written down the number of the note, that is my ten dollar note, I want it back" - in the hands of some subsequent person. That is the reason why Black v Freedman had to use equitable doctrines. Otherwise, the common law would simply protect it. And the same here; the common law would not have given legal title to the defendant's nectarines to the plaintiff, unless one - - -

GUMMOW J: There was an order made for delivery up or destruction of the trees that had been grown using this stock.

MR BENNETT: Precisely, your Honour, for a number of reasons. First, they were on the defendants' land, and secondly, they are the produce of the stolen goods rather than the stolen goods themselves.

CALLINAN J: Well, this preceded Anton Pilar orders, I think, did it not?

MR BENNETT: Yes. The third case is the one your Honours have been referred to, and that is Donnelly v Amalgamated Television Services Pty Ltd (1998) 45 NSWLR 570, involving the police, using their powers, and the property coming into the hands of a third person, and the third person being restrained from its use. The man being arrested - - -

GLEESON CJ: The Chief Judge in Equity in that case came to the conclusion, as I read his judgment, that because the material in question was of a humiliating nature, it was analogous to confidential information.

MR BENNETT: Yes. But he did not need that, your Honour. If it had simply been the fact that the plaintiff was a well-known public figure being arrested in his home, he had been fully dressed at the time, and the film had been provided by a police officer who had abused his or her powers by taking the film and providing it, in my submission, the remedy would have been available.

KIRBY J: I notice in that case there is a reference to Justice Levine's decision in GS v News Limited. Do you have a copy of that, or not?

MR BENNETT: No, your Honour. The second aspect of the case concerns the constitutional principle. We accept the tests laid down in Lange, and I do not propose to say any more about that; there is no challenge made to it. There are a couple of aspects, though, I would direct your Honours' attention to. The first is that there may be a difference between making a statement and merely recording an event or a thing.

Your Honours will recall, each of the Justices in Levy referred to the fact that what Mr Levy wished to do was engage in non-verbal communication by being filmed tending to injured ducks, perhaps waving dead ducks around, perhaps confronting the duck shooters - but each of those activities was an activity proposed by Mr Levy with a view to communicating non-verbally with a wider audience. It was not a question of simply filming duck shooters doing something, and then using that film - which might have been obtained illegally - in order to support an argument. There is a difference between the two.

It may often be a difficult distinction to draw, but in this case, of course, this is not the making of a political statement by Lenah Meats, or indeed, by anyone. There is a political statement being made, no doubt, by the ABC reporter or presenter, but when she makes her statement on the air, all the film is is a backdrop or a piece of evidence to it. And there must be a question as to how far the freedom of political communication goes in relation to immunising any illegally obtained material a person wishes to use in making a statement, the material not being a statement in its own right. We do not make the submission about how one applies that in this case, but we simply alert the Court to the distinction and the question as to whether one can say that the freedom extends to protect the prop, as well as the speech.

The example of the door, which I gave earlier - a slightly whimsical example - may be a good one here. If the door is filmed as the result of a break and enter, and it is any door, but then a political party wishes to use it in an advertisement saying "Show the government the door", at an election, there is a serious question as to how much protection would be given by the doctrine to the use of the door in that way. We would submit that if there is a principle of equity or, for that matter, of tort, that if there is a principle which protects that film of the door, then the fact that someone wished to use it to say "Show the government the door" would not be sufficient to immunise it. It is a mere prop. The second matter to which we would direct your Honours' attention - - -

GUMMOW J: Third, is it not?

MR BENNETT: I am so sorry, your Honour? Third, is it? Sorry, I may have lost count. Is that in the United States, there are some cases which refer to the relationship between the First Amendment and illegally obtained material of the type involved here, by invading photographers and so on. I just wanted to remind your Honours of two very short passages in cases we have provided. The first is Galella v Onassis [1973] USCA2 663; 487 F 2d 986, a decision of the Court of Appeals from the Second Circuit, in 1972. This involved an injunction obtained by Jacqueline Onassis against a paparazzi-type photographer who had been harassing her, and one of the arguments put up by the photographer was a First Amendment argument. I only wanted to remind your Honours of one very short passage. It is page 7 of 15 of the reports I have given your Honours, which is from - - -

GUMMOW J: Not a report.

MR BENNETT: I am sorry, your Honour?

GUMMOW J: It is not a report.

MR BENNETT: No, it is not a report, your Honour. For that, I apologise and.....the venue. The passage, two thirds of the way down page 7 of 15 is Galella, who was the paparazzo:

does not seriously dispute the court's finding of tortious conduct. Rather, he sets up the First Amendment as a wall of immunity, protecting newsmen from any liability for their conduct while gathering news. There is no such scope to the First Amendment right. Crimes and torts committed in news gathering are not protected. There is no threat to a free press in requiring its agents to act within the law.

There is a similar statement in a case called Dietemann v Time, Inc. [1971] USCA9 946; 449 F 2d 245, a decision of the Ninth Circuit, in 1971. This was the use of a photograph of the plaintiff obtained in his home with a hidden camera, and at page 6 of 9, at the top of the page, this passage appears:

The defendant claims that the First Amendment immunises it from liability for invading plaintiff's den with a hidden camera and its concealed electronic instruments because its employees were gathering news and its instrumentalities "are indispensable tools of investigative reporting." We agree that newsgathering is an integral part of news dissemination. We strongly disagree, however, that the hidden mechanical contrivances are "indispensable tools" of newsgathering. Investigative reporting is an ancient art; its successful practice long antecedes the invention of miniature cameras and electronic devices. The First Amendment has never been construed to accord newsmen immunity from torts or crimes committed during the course of newsgathering. The First Amendment is not a license to trespass, to steal, or to intrude by electronic means into the precincts of another's home or office. It does not become such a license simply because the person subjected to the intrusion is reasonably suspected of committing a crime.

I only give your Honours those references to place them at the other extreme to the statements of the majority of the Supreme Court of the United States in - I am sorry, your Honours, I had the place a moment ago and I have lost it. I will come back to it. It was the case involving some Vietnam disclosures and - - -

HAYNE J: The Pentagon Papers Case?

MR BENNETT: Yes, the Pentagon Papers Case. It is the New York Times, and, I think, another newspaper - I have lost the case at the moment, I am sorry. It was referred to in the appellant's submissions and it is a case containing language very similar to that of Lord Hoffmann, in the case cited today. Those are statements, we would respectfully submit, which are to the extreme of one view in relation to the balancing of the interests of freedom of speech and necessary restrictions. The passages I have read, your Honours, are, I would submit, a balance to those passages. I will have the reference checked, your Honours.

GUMMOW J: Is it New York Times v United States?

MR BENNETT: Yes. That is the one.

GUMMOW J: [1971] USSC 145; 403 US 713?

MR BENNETT: Your Honour, I am not sure - that is the one I have just been given, but I am not sure that is the one I was thinking of. But if your Honour pardons me, I will have the one.

KIRBY J: I notice that in Dietemann that the criterion that the court seems to have adopted is that the activities of the news media "went far beyond the reasonable bounds of news gathering".

MR BENNETT: Yes.

KIRBY J: I wonder if that is - - -

MR BENNETT: That is one way of expressing a balancing test, bearing in mind the First Amendment principles in the United States. I am not concerned with the result in the particular case, I am merely concerned to indicate that there are some dicta in that case which seem fairly extreme, and on the same plane, perhaps, as the remarks of Lord Hoffmann, which were read this morning. But there are statements the other way as well, and there are statements in the middle of the road.

KIRBY J: The passage was actually from Onassis, but it is the more surprising because it is expressed in the context of the First Amendment.

MR BENNETT: Yes. Precisely, your Honour.

KIRBY J: It does seem, if you look at the cases - I mean, if you look at the cases in England about Michael Douglas, and you look at the numerous cases in Australia and one's own experience watching television or reading the news, there does seem to be a phenomenon, which has developed in the last two decades, of so-called investigative journalism, and hidden cameras and intrusions. It would be interesting to compare in one's mind the way in which different societies with different constitutional backgrounds have been responding to this, because there is a limit to which, even in the defence of free speech, this kind of intrusion can be tolerated.

MR BENNETT: Precisely, your Honour. And what we submit is: when one is dealing with principles based on protecting the fruits of the tort of trespass or illegal acts which obtain the information or the images, then, we submit, the second principle in Levy, about being appropriate and adapted, comes into play. The case I was looking for is New York Times Co v United States and United States v Washington Post Co [1971] USSC 145; 403 US 713 (1971). Your Honour Justice Gummow referred me to the correct case but the report I had in front of me was in a different format, and I did not think it was the same case.

Finally, we have made a submission which I will not develop, that in relation to matters of purely State concern, the constitutional principle, so far as it derives from the Federal Constitution, only applies to the extent that there is a reasonable degree of interweaving with federal issues. Whether this case falls within that or not is a matter which has to be judged on the facts of that case. The final matter concerns the creation of the new tort of privacy, and we only want to say three things about it. The points have all been made separately, so I will not develop them.

The first is that this is an area par excellence in which Law Reform Commissions, governments of the State and Federal level, have been looking at, legislating on and dealing with. It is an area of public controversy. It is an area where lines have to be drawn between competing interests. It is par excellence, we would submit, an area where it is difficult, in the face of that legislative enactment as to where lines should be drawn, for the courts to start a priori drawing their own lines.

GAUDRON J: If, however, one goes back to your answer to me about the hospital. You say, no, there is an implied licence and the licence is withdrawn on breach and therefore there is a trespass. Ninety-nine times out of a hundred, there will be an implied licence and you will never need a tort of privacy - if your submissions are accepted. Is that not so?

MR BENNETT: That is the second leg of the submission, your Honour, that it is not necessary because it is almost always covered. There was an example your Honours may have read in this morning's newspaper of an incident which occurred in England yesterday, which might not have fallen within that. That was a case where a member of the Royal Family was tricked by a person into having what she thought was a private conservation; she said some very frank things about some politicians, and the person turned out to be a reporter, who sought to publish the information. That is a case where, I suppose, a tort of privacy might operate, but none of the existing principles probably would. But that is an unusual and specialised type of case. In the vast majority - - -

KIRBY J: It is not all that unusual. People are being tricked all the time, tricked and invaded and abused, and it is all then defended in the name of free speech.

MR BENNETT: And the legislature can protect them As it has done with listening devices legislation, for example. There have been lines drawn in that legislation. The initial legislation generally required - had an exemption if one was a party to the conversation; the modern legislation tends not to have an exemption if one is a party to the conversation. But that is an example of the legislature drawing the lines in relation to the area of privacy.

The third problem with the tort that is proposed is its width and vagueness. There are many, many areas in which it might operate. The confidential conversation or the tricked conversation with a public figure is one example. Another example might be a concealed camera in a public toilet. One can think of all sorts of cases where there may be an invasion of a person's privacy, of one type or another. Other examples concern the disclosure of facts not protected by the law of defamation.

Some of the cases involve jurisdictions where truth alone is a defence. In those jurisdictions, there has been a question of what one does with the person who wants to publish the old skeleton in the closet that is unfairly damaging a person in the public image. The law of defamation - because, in those jurisdictions, truth alone is a defence - does not provide an adequate remedy. Does the law of privacy? That is what has happened in New Zealand, where in that type of case, the tort was developed.

In my respectful submission, the range of areas it can cover is so wide, the degree of certainty of the tort is so vague, it is in most cases not necessary and it is in an area being covered by Law Reform Commissions and legislatures, and, in my respectful submission, it would be inappropriate for this Court to develop a general doctrine of such a tort. It would fall on the other side of Justice Kirby's distinction between development and the mutation. Those are my submissions, your Honours.

GLEESON CJ: Thank you, Mr Solicitor. Yes, Mr Tobin?

MR TOBIN: Your Honours, the submissions on behalf of the respondent and the Attorney-General of the Commonwealth still posit, under two descriptions, what amounts to an innominate tort, or an innominate right, to protect threatened damage to goodwill, and in Moorgate, the Court set its judgment against the existence of such an innominate tort. The heart of the complaint that is made by the respondent and the remedy which is sought by the respondent goes solely to potential damage to goodwill. Stripped of all the other elements, that remains the complaint that is made on behalf of the plaintiff. It is our submission, your Honours, that that does not constitute a sufficient basis in law or equity. Your Honour the Chief Justice - - -

GAUDRON J: It would though, would it not, if there were a conspiracy?

MR TOBIN: I accept that, your Honour, and I - - -

GAUDRON J: Well, then is the law not anomalous, in this respect: that it is perfectly okay if one person does it, but not if two.

MR TOBIN: It would be not okay if one did it either, your Honour, because that would be the tortfeasor, and those who went to assist, in a complicitous way, the tortfeasor in the tortious conduct, would also be liable. That is the present reach of the law. That is, the tortfeasor, the trespasser, is liable not only for the tort of trespass but for what has been called the fruits of the trespass.

Of course, the problem arises if you apply the criteria in breach of confidence cases to these cases, that, on postulating the provenance of the information as being tainted, at each step of the chain of publication and republication of the information, there is an unlawful involvement, as there would be under breach of confidence rules. And we submit, your Honours, that it is not appropriate to give the tick to the right-hand bottom box that Mr Bennett has put before your Honours, because that would constitute a significant change in the law, which, as your Honour Justice Gaudron has put to my learned friend, would constitute in a sense all of the elements of a tort of privacy - I hope I understood what your Honour was putting correctly.

We submit, your Honours, that any equity that attaches to the exclusive possession of the land or the premises should not be understood as extending to information that might be gleaned from a person being on the premises and acquiring the information and wishing to use it, without the permission of the owner, and with the possibility of damage. The reason, your Honours, is this: too commonly, a person enters a property - it does not have to be an investigative journalist, it can be the curious - and may be asked to leave, and dallies awhile - thus being a trespasser - and, in the dallying, sees things that the owner of the property would not wish to be disclosed. On the argument in this case - not confidential or secret, but embarrassing.

If, as he leaves, he is told to keep his mouth shut, he would be under the obligations of an equity or a right asserted by the owner, should he go to the hotel and tell his friends what he had seen. The difficulty, of course, is that information of this kind, not being confidential, not being trade secrets such as in the plant case in Queensland - information of this kind is the common currency of discourse and does not have attached to it any of the indicia of confidentiality that applies in breach of confidence cases in a commercial setting.

It is for those reasons that we respectfully submit, your Honours, that what is being attempted in the argument before your Honours is to establish an innominate tort or an equitable right, not previously recognised, not to be called unfair competition in the Moorgate sense, but unfair disclosure, perhaps, and the consequences of it, we submit, is to directly impede or extend the reach of the law against ordinary freedom of publication. The example from the United States that my learned friend put to your Honours a few moments ago, Dietemann v Time Inc, was a case where the journalists were tortfeasors.

My client accepts, without question, the reach of the law to forbid the publication obtained by tortious means by the news organisations. We invite your Honours to adopt the approach that was exemplified in Pearson v Dodd, for example, or Liberty Lobby, which is to make a clear division between - - -

KIRBY J: It is not a very clear division, though, is it, because the news media themselves will never engage themselves in the trespass, but they might have some corporate associate, they might have the ready willingness to provide money for tapes of this kind. They become the receptacles and the encouragers.

MR TOBIN: The become complicit in the act, your Honour, and would be caught by it, which seems to us to be what Pearson v Dodd says.

CALLINAN J: But short of complicity, if you were to succeed in this case, that would almost be a licence for people who had a cause or view in mind that they thought might be newsworthy, to go out and obtain it, and if they could get away with it, provide it to the media, and for the media, then, with impunity, to publish it to the world.

MR TOBIN: But, your Honours, this case is marked by the fact that the assumed trespasser is not identified. The ABC's conduct is at two removes, that is, the information has entered the mainstream through the trespasser, then through Animal Liberation, then through the ABC. The difficulty of your Honours extending the scope, such as is laid down in Lincoln Hunt, where the tortfeasor alone is liable, to others who receive information along the chain, is that that is not a licence to the trespassers as much as a serious impediment to the way in which news is obtained of the most serious kinds of wrongdoing.

CALLINAN J: To provide a remedy to discourage people from breaking the law in order to get the news is an impediment to news gathering, is that what you putting to me?

MR TOBIN: What I am putting to your Honour is that the present regime whereby news organisations are subject to quite severe limitation upon their lawful conduct by publication - - -

CALLINAN J: What limitations?

MR TOBIN: The limitations which Lincoln Hunt expresses, by way of example. The limitations imposed by breach of confidence law, the limitations at common law by defamation and injurious falsehood. Your Honour, I do not cavil from the consequence of what I put. The plaintiff here has not chosen to sue in defamation, which, as I have put earlier, seems to us to be the obvious remedy for the threat or any damage to goodwill, and that is the obvious recourse in nearly all cases where intrusive observation of what happens is challenged by a plaintiff and comes to the courts. Damages - - -

CALLINAN J: But wait a moment, Mr Tobin. Has the respondent seen the program that was to go to air on the 7.30 Report?

MR TOBIN: Has the respondent? I am sorry - - -

CALLINAN J: Yes.

MR TOBIN: I imagine, your Honour - - -

CALLINAN J: Yes. The report, as it was intended, as was intended to go to air, did not go to air, is that correct?

MR TOBIN: I have no idea, your Honour.

CALLINAN J: We were told that there was no contest that some excerpts were telecast, I think on 5 May.

MR TOBIN: Yes. I think, your Honour, the confusion might be this, that the tape of 10 minutes at the premises, which was simply a video running for 10 minutes showing some animals being slaughtered was - - -

CALLINAN J: What I am putting to you, really, is - let me be quite direct about it - that it may be that had the actual program been telecast in the form in which your client had put it for the telecast, it might have been defamatory and then perhaps the respondent might have sued, but at the stage at which the injunction was sought, the respondent did not know and could not know what form it would take when it was ultimately telecast as part of the 7.30 Report, is that not right?

MR TOBIN: Yes, speculatively, your Honour. I do not know and the respondent does not know whether the program as it was being gotten ready as at that date was good or bad for him.

CALLINAN J: I am only putting that to you as a possible answer to the failure of the respondent at this stage to have sued for defamation, that is all. Taking the action that the respondent took when it did take it may have arrested or intercepted the need to sue in defamation.

MR TOBIN: Your Honour, this is not a good course, if I may put it that way. If a plaintiff seeks a quia timet injunction to enjoin publication, that is, to prior restraint of publication, it is open to that plaintiff on the return date to issue the subpoenas and obtain access, as frequently happens, to the proposed program. If the plaintiff does not choose to do it, that does not deprive it of its right to proceed for defamation on the subpoenaing of the material - - -

CALLINAN J: But do we know that it was in the format that was going to be telecast by it?

MR TOBIN: We do not know that. I do not know it and the court below did not know it. The argument before Mr Justice Underwood is a little confused but it seems to be that the stance taken on behalf of the plaintiff was, "We don't say it's defamatory; we say it merely shows an operation which is probably carried out in every abattoirs throughout this country every day in respect of other animals but obviously people aren't interested in seeing calves and sheep and cows - - -"

CALLINAN J: Mr Tobin, I will not labour it, but what is being spoken about there is what was filmed at the abattoir. What is not being spoken about is the program that your client intended to put to air. We do not know what that is. That is an entirely different thing that is being spoken about.

MR TOBIN: Yes. If that is so, your Honour, what then moved the plaintiff was simply and solely what we have called the seeking of a remedy for an innominate cause of action for unfair disclosure. The interim injunction sought ex parte at page 8 of the appeal book was to restrain:

the first named defendant . . . from publishing or causing to be published or distributed a video or videos showing the plaintiff's brush tail possum processing facilities.

I take that to mean the slaughtering operation. Your Honours, the statement made before the court below as to the nature of the information is of great importance because in the approach to be taken by the court, as I think I have said on a number of occasions, the quality of the information is important. It is neither secret nor confidential; it is commonplace; it is seen, it is said, in every abattoirs every day around the country for the slaughtering of animals. It is not apt to attract any remedy in the court, we submit, by way of injunctive relief, or would it be by way of damages.

Now, your Honours, mention was made of Countess Sophie's interview by a disguised reporter, and if it is of any use, this being a report of kinds from the local newspaper, it does say, "She sought to have the article stopped by legal action but struck a deal to give a frank interview in return for the footage being returned." That may often be, as it were, the nature of transactions of this kind, if that be accurate, between the party who has been filmed or surreptitiously interviewed and the media. That is to say - - -

KIRBY J: It seems hardly likely that she would have expected that her personal comments on the Queen would have become public currency throughout the world. In fact, it seems absolutely inconceivable. It has become the norm, unfortunately, of the media.

MR TOBIN: Yes. Your Honours, the final case I wanted to refer to was United States v New York Times. It was put by Mr Bennett that Dietemann v Time, Inc provides a balance to what were, he thought, extreme statements of Lord Hoffmann and one or other of the justices in the New York Times Case. What Dietemann showed was that there is power to restrain tortfeasors including journalists and they have no recourse to protection in the United States of the First Amendment, nor do they have protection in these courts for that conduct.

Second, your Honours, it is our respectful submission that what is put by Lord Hoffmann, which I quoted this morning from Insert Media v Associated Newspapers, and in R v Central Television, was a statement in the context of obtaining injunctive relief in the absence of a cause of action. In that context, his Honour said, free speech is a trump which always wins. And that, in our submission, seems to be an accurate statement as to the law and the consequences of its enforcement.

KIRBY J: That was a statement that one might have happily embraced a few years back, but we have come to a point, at least in Australia, where people are spied on, illicit cameras are placed, people are tricked into interviews, people are cautious that their telephones may be intercepted, and the result of all that is that people do not enjoy privacy. The common law normally responds to that kind of environment and says, "We will provide remedies, we will provide defences". I mean, the law responds to the situation that has emerged. It was not the situation back in 1937 when this Court considered the Victoria Park Case. It is, alas, the situation today.

MR TOBIN: There would, in our submission, be a battery of legal protections for citizens available across the board in the operation of the law. What is being put to your Honours is a very serious encroachment proposed on behalf of the respondent and the Attorney-General upon the processes whereby whistleblowers and those who have true tales to tell are published to the community at large, and effect great tempering of what can be real iniquities. And that is of course the balance that must be struck.

The value judgments in the New York Times Case range from the leading judgment of Justice Black, where he said, of the decision of the New York Times and the Washington Post to publish purloined government papers, that they and other newspapers should be commended for serving the purpose that the founding fathers saw so clearly. In revealing the workings of government that led to the Vietnam War, the newspapers nobly did precisely that which the founders hoped and trusted they would do. That is high praise from the senior judge leading a strong majority. Against it, the Chief Justice, Chief Justice Burger, was quite appalled, and said:

To me it is hardly believable that a newspaper long regarded as a great institution in American life would fail to perform one of the basic and simple duties of every citizen with respect to the discovery or possession of stolen property or secret government documents - - -

KIRBY J: If only one could draw a line that permitted the true and noble revelation of the truth and distinguish that from the trivia, the merely entertaining or the debasing and the humiliating. If one could draw that line, then there might well be wisdom in the law that results.

MR TOBIN: There is generally more chaff than wheat in the bags at the end of the day, your Honour. That is just one of the realities. And the reason that I refer to the two justices in that Pentagon Papers Case is that the present legal structure, in our submission - this is my final submission, your Honours - provides the balance that Mr Bennett calls for, and the ability to weigh up the competing interests which the courts have been concerned with for years. And that what is proposed as, by a side-wind, the introduction of a quasi-tort of invasion of privacy, simply has the effect of disturbing the balance in a way that the development of the jurisprudence does not require.

GUMMOW J: Now, Mr Tobin, can I ask you a mundane question about costs.

MR TOBIN: Yes, your Honour.

GUMMOW J: It was a term of the grant of special leave that you bear costs in any event.

MR TOBIN: The costs of the respondent, your Honour.

GUMMOW J: In this Court.

MR TOBIN: Yes, your Honour.

GUMMOW J: Now, if you were successful here, is it your position you would still bear, and we would not disturb the adverse costs orders against you in the Supreme Court?

MR TOBIN: I think silence connotes consent.

KIRBY J: That is the view your client takes of people whose privacy is invaded.

GAUDRON J: You do not concede that, do you?

MR TOBIN: I think it is respect for an old chancellor that leads them to adopt that, of course, your Honour. Justice Gaudron did ask about any change in the criteria or the test for injunctive relief. We have copies, your Honour, of Imutran and Uncaged Campaigns, and there is a discussion on pages 4 and 5 of that print out, of the application of a test from the Human Rights Act of the United Kingdom in 1998, the test being "likely to establish that publication should not be allowed". That is about restraint of publications before trial as against the American Cyanamid test, and I think that might be what your Honour had in mind.

GAUDRON J: Yes, that is what I was thinking of, yes. Do you say anything about the appropriateness of that test if you fail otherwise?

MR TOBIN: The Vice-Chancellor said that although counsel thought the test in the Act, the Human Rights Act, imposed a higher standard than American Cyanamid, and theoretically he said he went along with the proposition that it was slightly higher in the scale of probability. He said that:

the difference between the two is so small that I cannot believe that there will be many (if any) cases that would have succeeded under the American Cyanamid -

but failed on section 12 of the Human Rights Act.

GUMMOW J: Which paragraph is this, Mr Tobin?

MR TOBIN: It is 17, your Honour.

CALLINAN J: Is the last case in this Court the Coarse Grains Case or is there some later case in this Court?

MR TOBIN: I think Coarse Grains - Patrick Stevedores, yes.

CALLINAN J: Patrick, yes.

GAUDRON J: Well, no, that was a statutory - - -

CALLINAN J: That was also a Mareva - well, no it was not, was it, but it was statutory, as her Honour points out.

MR TOBIN: However it is framed, your Honour, it is our submission that the bar should be set high. If your Honours please.

GLEESON CJ: Thank you, Mr Tobin. We will reserve our decision in this matter.

AT 3.18 PM THE MATTER WAS ADJOURNED