Every so often an appellate court decides a case which appears to bring legal principles into very sharp focus.
One such case was the decision of the High Court of Australia in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199.
An injunction in its most common form is an order by a court preventing someone from doing something. For this reason injunctions play a very important role in the legal system.
Courts are often asked to grant injunctions in situations of urgency. Injunction applicatons are often the “first shot” fired in a legal battle.
The decision in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd is relevant to:-
In a nutshell the case was an attempt to stop the Australian Broadcasting Corporation ("the ABC") from using part of a tape or film in a broadcast.
An unknown person or unknown persons had secretly planted a camera in a abattoir used for the killing of possums. To install the camera the person or persons had entered the abattoir. This amounted to the tort, or civil wrong, of trespass to land.
The recording made with the camera had been passed on to the ABC.
The ABC was proposing to broadcast part of the recording in a program concerning the activities of Lenah Game Meats Pty Ltd ("Lenah") the operators of the abattoir.
The ABC was not implicated in the trespass.
The facts raised some fundamental issues:
Lenah applied to the Supreme Court of Tasmania for an injunction against the ABC.
It should be noted that the case reached the High Court without any Trial being held. This was because the application was for an interlocutory (i.e. preliminary) injunction.
Such applications are generally made to preserve the present position so that a Trial on the merits can take place at a later date. If use of the recording occurred before a final hearing in the court the damage would already have been done.
In short, the application was a preliminary application to the Court.
The case, in a way which is quite unusual, went all the way to the High Court on the preliminary issue of whether the courts below had power to grant an injunction in the circumstances.
Injunction applications are routinely heard by one Judge only.
The Judge who first heard the application of Lenah dismissed it. However the Full Court of the Supreme Court of Tasmania, an appellate court, by a Majority, allowed an appeal against the initial decision.
The High Court decided, by a majority, that the decision of the first Judge and the Judge who had been in the minority in the Full Court of the Supreme Court of Tasmania, was correct.
Lenah had no right to stop the use of the recording because the content of the recording lacked the character of confidentiality which it needed to have in law before Lenah could have a legal right to prevent the use of the recording.
The “crunch” was that since Lenah did not have a right to stop the use of the recording it had no right to an injunction. There was no reason for the court to interfere. There was no right to protect.
The decision re-affirmed the traditional principles which apply to interlocutory injunctions.
Without the ability to point to the infringement of a legal right one does not obtain an injunction. One does not even get to first base.
At pp 217-8 Gleeson, CJ quoted the following passage from a judgment of Mason A-CJ in an earlier case, Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148, at 153, on what must be shown by an applicant for an interlocutory injunction:-
In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction.
This was the approach which Australian Courts had usually taken to injunctions and the High Court re-affirmed its correctness.
It is interesting to note that the Commonwealth Government intervened in the case. It put arguments to the Court.
One cannot help feeling that the arguments of the government were motivated by a kind of anti-whistleblower self-interest. It urged the Judges of the High Court to adopt the view that the fact that information was improperly obtained should weigh heavily against allowing it to be used.
How all-pervasive governments are!
The case was a win for the media. However the outcome could have been very different if the majority of the Judges on the court had regarded the content of the recording as having been confidential in the sense that much material is regarded under the law relating to breach of confidence.
As the cases referred to by the Judges in their judgments show a wide range of material has been treated by the courts as confidential in the requisite sense.
If it had been a trade secret which was being disclosed the result of the case might have been entirely different.
For this reason the decision may not have the positive implications for journalists which it seems to have at first blush.
If you run an abattoir and do not want adverse publicity pay security guards to keep everyone out!
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