The short answer is: not in this case in which Snaden J awarded The Game Meats Company $130,000 damages against Farm Transparency International for trespass but rejected Game Meats’ claim to a Lenah Game Meats constructive trust over the copyright in videos made by Farm Transparency during the trespass. The case also challenges whether the victim of the trespass can get an injunction against communicating the fruits of the trespass.
What happened
Game Meats operates abattoirs, including a halal abattoir at Eurobin.
Farm Transparency is a not-for-profit charity dedicated to educating the public about animal exploitation and the prevention of cruelty to animals.
As one of its directors, Mr Delforce, put it, Farm Transparency’s overarching wish is to “…end all forms of business that involve causing harm to animals”.
To that end, Ms McDonald-Eckersall, its Strategy and Campaigns Director, developed Farm Transparency’s “Shut Down Slaughterhouses” campaign.[1] As part of this campaign, between January and April 2024, Farm Transparency operatives (including Mr Delforce and Ms McDonald-Eckersall) broke into the Eurobin abattoir and installed video cameras to record the animal slaughtering process.
In May 2024, Farm Transparency provided some of the footage from those cameras to the Commonwealth Department of Agriculture as part of a complaint about the nature of Game Meats’ operations.
A few days later, Farm Transparency provided 14 minutes of the footage to Channel 7 which broadcast a story on its Albury station, but without the footage. Farm Transparency also posted the 14 minutes of footage with commentary on its Facebook page and on its website with a press release.
Game Meats obtained injunctions ex parte against the continued publication of these materials. Game Meats then sought injunctions and exemplary damages for trespass, injunctions and damages for contraventions of the prohibitions on misleading or deceptive conduct or the tort of injurious falsehood and, finally, it sought a declaration that a constructive trust arose over the copyright in the footage obtained through the trespass.
The decision
By the time of the trial, Farm Transparency admitted liability for trespass and Snaden J ordered damages totalling $130,000 ($30,000 damages and $100,000 in exemplary damages) for the trespass.
Snaden J, however, dismissed the claims for injurious falsehood, misleading or deceptive conduct and for beneficial ownership of the copyright in the footage as a cinematograph film.
The Lenah Game Meats constructive trust
Lenah Game Meats is authority for the principle that an interlocutory injunction cannot be granted except for the protection of some legal or equitable right or interest.
Similarly to the present case, Lenah Game Meats involved an attempt to stop the broadcasting of footage of the operations of the abattoir obtained through unlawful trespassing.[2] In the course of their reasons, Gummow and Hayne JJ said in obiter at [102] (with the individual agreement of Crennan and Callinan JJ):
A cinematograph film may have been made, as in Lincoln Hunt, in circumstances involving the invasion of the legal or equitable rights of the plaintiff or a breach of the obligations of the maker to the plaintiff. It may then be inequitable and against good conscience for the maker to assert ownership of the copyright against the plaintiff and to broadcast the film. The maker may be regarded as a constructive trustee of an item of personal (albeit intangible) property, namely the copyright conferred by s 98 of the Copyright Act. ….
Snaden J noted, therefore, that whether or not a constructive trust would arise depended very much on the particular facts of the particular case.
His Honour noted that, after Lenah Game Meats, Hall J had refused to find a constructive trust arose of footage and photographs taken by trespassers in Windridge Farm Pty Ltd v Grassi.
In Windridge Farm, Hall J found that the trespassers did not intend to use the footage for publication (but to facilitate an investigation) and there was no evidence of damage resulting from their conduct. At [129], Hall J said:
Apart from the unlawfulness of the entry onto the premises by the defendants, the evidence does not establish the type of circumstances to which Gummow and Hayne JJ in Lenah] adverted. These circumstances include matters which constitute either an invasion of the legal or equitable rights (such as the right to confidentiality) of the owner or occupier of premises or facts that establish a breach of any equitable obligation operating between (in this case) the plaintiff and the defendants at the time the film and the photographs were made or taken.
First, at [174] – [175] Snaden J rejected breach of confidence as a basis for intervention. While breach of confidence could be invoked to restrain the publication of confidential information “improperly or surreptitiously obtained”,[3] Game Meats had not submitted what was depicted in the footage was confidential nor could it realistically do so.[4]
Next, Snaden J considered there might be situations where how the footage had been obtained (his Honour’s emphasis) could give rise to a sufficient equity. At [177], his Honour explained:
But for the absence of authority, I would have been disposed to the view that it should. For the best part of two centuries, courts of equity have been prepared to grant relief against defendants possessed of information obtained by reason of “…a breach of trust, confidence or contract”: Prince Albert v Strange (1849) 1 Mac & G 25; 41 ER 1171, 1178 (Cottenham LC). The fact that information has been obtained through the commission of a crime or tort might not, by itself, suffice to warrant equivalent relief: Lenah, 230–1 [55] (Gleeson CJ); Smethurst v Commissioner of the Australian Federal Police (2020) 272 CLR 177 (“Smethurst”), 219–20 [94] (Kiefel CJ, Bell and Keane JJ). But there is, in my view, much to commend the submission that, subject to discretionary considerations, equity might intervene to grant relief in relation to information that is directly obtained:
(1) as the intended consequence of wrongful conduct; and
(2) for the purposes of using it to visit prejudice upon the victim against whom that conduct was carried out.
For a respondent to realise the benefit that was intended to materialise from conduct of that kind would, I think, aptly be described as unconscionable (or unconscientious: see Lenah, 244–5 [98] (Gummow and Hayne JJ)).
However, Snaden J held that this was not a case where a constructive trust arose.
First, at [179], Snaden J noted that obtaining the footage through trespass had not been sufficient in Windridge and Smethurst. While the absence in Windridge of a purpose to shame or damage the abattoir was a difference to the present case, it was not sufficient. At [180], his Honour concluded:
…. The court should, I think, be very slow to favour a result that deviates from what transpired in those cases in the absence of some clearly apparent distinguishing feature or features.
Secondly, Snaden J was influenced at [181] by the absence of precedent recognising the proposed constructive trust. It was not appropriate for a judge at first instance to indulge “in the kind of ‘bold step’ that trial judges should ordinarily leave for higher consideration”.
Injurious falsehood and misleading or deceptive conduct
The claims for injurious falsehood and misleading or deceptive conduct failed because Snaden J found that the publications did not falsely represent that Game Meats condoned animal cruelty or was systematically cruel to the animals it slaughtered at the abattoir.
The injurious falsehood claim failed for the further reason that Farm Transparency did not make the representations in the publications maliciously. Snaden J accepted that there was no element of personal spite against Game Meats. However, his Honour rejected Farm Transparency’s claim that it did not intend harm to Game Meats. On the contrary, Farm Transparency’s very objective was to shame Game Meats and reduce custom for its products by exposing its production practices.
Even so, this was not enough – the intention to injure had to be without just cause. And that was not the case. At [131], his Honour explained:
The making of each of the Three Publications was effected to further the political ends to which FTI is committed. Whatever might be said of those ends, they cannot be impugned as unjust or improper in any sense recognised by law. It is a feature of societies the world over—and liberal democratic societies in particular—that people with shared ideological, religious, commercial or other values will group together with a view to spreading them or having them lawfully imposed upon others. That reality does not bespeak relevant injustice or impropriety.
Game Meats’ claims would also have run into difficulties proving it had suffered damage. Partly because of the state of its evidence, partly because of the speed with which the trial was brought on including the swift court action to secure interlocutory injunctions and partly because Farm Transparency had undertaken that it would not restore the footage to public view until final determination of the proceeding.
What happened to the injunction
The claims of copyright and injurious falsehood having failed, Game Meats sought an injunction to restrain Farm Transparency from publishing the footage obtained through the trespass. Game Meats argued this was necessary to prevent Farm Transparency from realising the benefits of its trespassing.
The interlocutory injunction was dissolved and no further injunction was granted!
Citing Patrick Stevedores at [33], Snaden J accepted that an injunction might be granted where the damage caused by tortious conduct is ongoing and is “extreme or at all events very serious”.
His Honour noted that Gageler, Gordon and Edelman JJ in Smethhurst had considered the invasion of Ms Smethurst’s privacy provided a sufficient interest for an injunction requiring the police to return her phone and the data it held. The police had seized the phone by executing a search warrant which was subsequently found to be invalid and so committed trespass. However, their Honours were in the minority.
At [204] – [206], Snaden J observed that the majority in Smethhurst, Kiefel CJ, Bell, Keane and Nettle JJ, accepted an injunction could be awarded where the trespass was completed only if its effects were serious and ongoing. Kiefel CJ, Bell and Keane JJ in particular had ruled the trespass did not support an injunction and there was no other right to be vindicated:
The public interest in both the investigation and the prosecution of crime would not suggest as appropriate an order that the information be taken from the [Australian Federal Police (“AFP”)] and given to the plaintiffs. The prospect that criminal conduct may be disclosed is a sufficient reason to decline the relief sought.
In the present case, the acts of trespass – at least as against the Eurobin premises – were well and truly completed although Snaden J considered it was very likely Farm Transparency would engage in similar acts against other premises.
On that basis, his Honour held that further acts of publishing the footage could not be characterised as continuations of the original trespass. And further, his Honour considered Game Meats could not establish the consequences of such publication(s) would be sufficiently serious.
As to the first point, his Honour accepted Farm Transparency’s submission:
It is correct to observe that obtaining of the footage was made possible by the trespass. However, once trespassing, the respondent did not commit any further breach of the law by filming what was there to be observed nor invade any further rights of the applicant. The respondent was not an outlaw whilst trespassing. The law treats the acts of trespass, and filming (even if whilst a trespasser), as distinct and not interrelated. One cannot slide as between those two separate matters, despite them arising from the same factual matrix.
At [214], Snaden J accepted that submission and explained at [215]:
There is a distinction that must be drawn between the commission of the tort—that is to say, the unauthorised entrance by FTI’s agents onto the Eurobin Premises and the installation there of the covert recording equipment that was thereupon installed—and the publishing of information obtained as a result thereof. The latter involves no interference with any legal right that GMC possesses and is not, in and of itself, tortious. The injury that inheres to GMC’s prejudice as a result of the trespasses is, at most, FTI’s possession of the footage; not its publication. (original emphasis)
At [216], Snaden J illustrated his proposition with the analogy that an injunction could not be granted against Mr Delforce or Ms McDonald-Eckersall to stop them telling others what they had seen during their trespasses.
In addition, Snaden J considered Game Meats could not show its injury from further publication would be sufficiently serious. At [214], his Honour explained:
…. If FTI were to publish the footage that it obtained as the fruit of its unlawful trespass, the consequences for GMC are difficult to pinpoint. I would accept, at a level of generality, that they would unlikely be positive. But the extent to which they might sound in immeasurable or extreme damage to GMC’s goodwill would depend on all manner of circumstances, not the least being the manner in which GMC sought to counter any public backlash. I do not consider it possible to conclude that the damage to GMC’s goodwill would be so significant as to clear the hurdle that needs to be cleared.
So, apart from the damages award, Farm Transparency is free to use the fruits of its trespassing with, it appears, impunity.
As a final point, although it was unnecessary to his decision, Snaden J noted he would have rejected Farm Transparency’s argument that its continued use of the footage was protected by the implied constitutional freedom of expression about matters of politics or government.
It might be questioned how allowing a trespasser to continue using the fruits of their trespassing promotes the objectives of the civil prohition on committing a trespass. This appears to be recognised by his Honour’s reaction at [177] “in the absence of authority”. Even so, one might wonder, with respect, whether telling someone what one had seen is comparable in nature and impact to showing a video. One might also wonder whether acts of unrestricted publication are comparable to disclosure to authorities or use in an investigation.
There’s an appeal
Game Meats and Farm Transparency have both appealed (VID 92/2025).
The Game Meats Company of Australia v Farm Transparency International Ltd [2024] FCA 1455 (Snaden J)
- Ms McDonald-Eckersall had previously achieved fame, or notoriety, through the Animal Rebellion campaign which disrupted McDonald’s national supply chain in the UK “costing the company millions”. ?
- Snaden J noted that the injunction rejected by the High Court in Lenah Game Meats was an injunction against the broadcaster. However, the interlocutory injunction against the trespassers themselves was left undisturbed (because they did not appeal). ?
- Citing Gleeson CJ at [34] in Lenah Game Meats. ?
- This conclusion seems to be reinforced by the High Court’s ruling in Lenah Game Meats and the subsequent decision Farm Transparency International Ltd v New South Wales [2022] HCA 23; 277 CLR 537 at [41]; a case involving an unsuccessful challenge to the constitutional validity of sections 11 and 12 of the Surveillance Devices Act 2007 (NSW). ?