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South Australia Supreme Court

Takhar v Animal Liberation SA Inc
South Australia
[2000] SASC 400

Case Details
Printable Version
Summary:   An ex parte injunction was granted against the applicants preventing distribution or broadcasting of video footage obtained while on the respondent's property. The applicants claimed they were not on the land for an unlawful purpose and that they were there to obtain evidence of breaches of the Prevention of cruelty to Animals Act 1985 (SA). The applicants had already distributed the footage to several media outlets. The injunction restraining distribution or broadcasting of the footage, which was applicable to the applicants only, was removed on the balance of convenience as the media outlets were at liberty to broadcast.

Judge Lander J delivered the opinion of the court.


Opinion of the Court:
  1. LANDER J. This is an application by the defendant to discharge an injunction made on an ex parte application by the plaintiffs on 10 August 2000.
  1. The plaintiffs are the owners and operators of chicken farms situated at Wards Belt Road, Gawler.
  1. On the evening/morning of 9/10 August 2000 persons associated with the defendant entered the plaintiffs' premises and chicken sheds situated on those premises and took a video film of the contents of that shed.
  1. They also took some chickens owned by the plaintiffs. They left a note together with cash of $25.00.
  1. Sometime later that day those persons provided video tape to the electronic media. A representative of the defendant also spoke to other members of the electronic media.
  1. On the morning of 10 August 2000 the plaintiffs' solicitors wrote to the defendant in the following terms:

"Animal Liberation SA

22 Franklin Street

ADELAIDE SA 5000

Dear Sirs

Trespass

We act for Pinder and Jaswinder Takhar, the proprietors of the chicken farm situated at Lots 731 and 502 Wardsbelt Road, Gawler in the State of South Australia. Our clients inform us that last night members of Animal Liberation SA committed an act of criminal trespass by breaking and entering sheds located on our clients' farm and unlawfully removing chickens from those sheds. The incident has been reported to the South Australian Police Force and we understand that the Police are currently investigating the issue. Our clients have been informed by media sources that representatives of Animal Liberation SA intend convening a press conference today at which video tapes of last nights break and enter will be shown. In the circumstances, our clients propose to seek an urgent injunction from the Supreme Court of South Australia restraining the publication of any material taken by way of video during the course of last nights illegal break and enter. We request that you confirm by no later than 12.15 pm today that neither Animal Liberation SA nor its servants, agents or employees shall publish, distribute, or otherwise seek to use any of the footage taken during the course of last nights trespass. If we do not hear from you by 12.15 pm today, our clients will have no option but to seek urgent orders from the Supreme Court of South Australia. We await your urgent response. Yours faithfully"
  1. The solicitors received no reply to that letter and accordingly on 10 August 2000 applied ex parte to this Court for and obtained an injunction in the following terms:
"1 That until further order the defendants their servants, agents and associated companies be restrained from a) distributing, publishing, copying or broadcasting a video tape or tapes, or films or other visual images filmed by a trespasser or trespassers showing the plaintiffs business premises at Lots 731 and 502 Wards Belt Road Gawler in South Australia. b) providing any copy of any video tape or tapes, or films or other visual images filmed by a trespasser or trespassers showing the plaintiffs business premises at Lots 731 and 502 Wards Belt Road, Gawler in South Australia to any media or other organisation who may seek to publish or broadcast any such video tape or film. c) deliver up forthwith to the court all copies of video tape or tapes, or films or other visual images filmed by a trespasser or trespassers showing the plaintiffs' business premises at Lots 731 and 502 Wards Belt Road Gawler in South Australia.
  1. The further hearing of the matter was adjourned to 11 August 2000.
  1. In these proceedings the plaintiffs seek a number of declarations in addition to the orders in the nature of permanent injunctions in the terms of the ex parte injunction granted on 10 August 2000. They also seek damages.
  1. The declarations sought include declarations that the defendant committed a trespass upon the plaintiffs' land and during that trespass engaged in unconscionable conduct and by publishing copies of the video tape to other persons also engaged in unconscionable conduct. They also seek declarations that the defendant by its trespass has unlawfully interfered with the plaintiffs' trade and business and that the defendant's unconscionable conduct has also interfered with the plaintiffs' trade and business. A Statement of Claim of sorts was filed after the hearing of this application. That was filed after I had pointed out to the plaintiffs' counsel that no action had been taken to progress this matter since the date of the filing of the summons and this hearing. The Statement of Claim is defective in a number of respects. It does not answer the criticism that the plaintiffs are not progressing this matter.
  1. The defendant responded to the Court's order by producing to the Court five video tapes of which two were master tapes and three were copies. Judge Kelly who granted the original ex parte order continued the injunction until 18 August 2000 and then later until 25 August 2000. The matter came on before a Judge of this Court and after briefly hearing the parties he continued the injunction until a date to be fixed. The matter was not resolved at that time because both parties indicated that they wished to examine the video film and obtain "expert evidence" in relation to it.
  1. The defendant now seeks the discharge of the interlocutory injunction.
  1. In support of this application the defendant has filed an affidavit from a Mr Hahnheuser, who has deposed that he was one of ten person who entered the plaintiffs' premises at about 1.30 am on 10 August 2000.
  1. The reason for entering the premises was that the defendant had received information from a person, whose name Mr Hahnheuser will not disclose, to the effect that the plaintiffs' were operating their business in breach of the Prevention of Cruelty to Animals Act 1985 (the Act).
  1. Mr Hahnheuser has deposed:
"For personal reasons, this person was not prepared to lodge a formal complaint with the Royal Society for the Prevention of Cruelty to Animals SA Inc (RSPCA), which is the organisation with primary responsibility for investigating alleged breaches of the Act or Regulations."
  1. The ten persons associated with the defendant entered the premises for the purpose of obtaining evidence which might be acted upon by the RSPCA. Indeed Mr Hahnheuser said that his purpose was to witness first hand and to document suspected breaches of the Act and to give aid to injured and suffering hens and that he intended to provide the RSPCA and the police with evidence to support a formal complaint.
  1. He said that he entered the premises by stepping over a low wire fence and entered the plaintiffs' sheds through an open door. He said that no property was damaged whilst gaining entry.
  1. Mr Hahnheuser took the opportunity in his affidavit to offer an opinion of law in the following terms:
"In my capacity as an employee of Animal Liberation, I have been required to develop a general knowledge of aspects of the law and I am generally aware of the laws of criminal trespass under s 17 of the Summary of Offences Act 1953. My belief is that members of Animal Liberation were not trespassing on the facility as we were not there for a unlawful purpose. Our purpose was to witness and document suspected breaches of the Prevention of Cruelty to Animals Act (or Regulations) and to then notify relevant authorities."
  1. He said that whilst on the premises no member interfered with the enjoyment of the premises by the operators of this facility and no-one requested them to leave. The fact that they entered unannounced at 1:30 am and that no-one else was present might explain why no-one asked them to leave.
  1. In any event Mr Hahnheuser has deposed that he witnessed numerous matters which he considered to be breaches of the Act and Regulations made under the Act. Whilst there, Mr Hahnheuser and another member of the defendant took video footage of the inside of the facility and the conditions of the birds.
  1. He formed the opinion that the birds were suffering and required urgent veterinary attention. He therefore decided to give aid to some of the suffering hens by removing them from their cages and taking them away. A total of 16 hens were removed for care. He believed that two of them were at risk of dying had they stayed in their cages overnight.
  1. He left $25.00 for the hens that were taken. He said:
"This amount was offered as compensation for the temporary loss of the hens whilst they received veterinary care."
  1. The persons who entered the plaintiffs' premises left at 2.00 am. At 4.30 am a president of the defendant telephoned the RSPCA emergency number to report breaches of the Act. Mr Hahnheuser spoke to an RSPCA inspector who said that an inspection would be carried out sometime that morning.
  1. Mr Hahnheuser also telephoned the police to advise them to secure the facility to avoid the possibility that conditions at the facility would be changed.
  1. He returned to the vicinity of the plaintiffs' premises at 7.00 am. At 9.00 am he witnessed considerable activity in and around the facility. He observed nine cars and one large truck at the facility and he said that a degree of activity appeared to be quite frantic and it also appeared to him that hens were being removed from the sheds.
  1. He said that he subsequently heard on the media that the RSPCA and police attended the facility several hours after his complaint and they recorded eight alleged breaches of minimum cage sized regulations.
  1. At 10.00 am Mr Hahnheuser returned to Adelaide to speak to numerous media representatives who had gathered at the defendant's office. Mr Hahnheuser gave several interviews to representatives of radio, television and media.
  1. At the time of swearing his affidavit on 17 August 2000 he had not been charged by the police in relation to the matter and nor did he expect to be. In that regard he said:
"I do not expect any charges to be laid by the police against any of the members of Animal Liberation who attended the Gawler River Egg facility on the morning of Thursday 10th August. In a similar incident involving Animal Liberation attendance at the premises of a different egg producer (Golden Eggs of Angle Vale) on 2nd August 1999, the evidence obtained by Animal Liberation triggered a successful investigation and prosecution of that producer by the RSPCA. The producer was convicted and fined. In that matter no members of Animal Liberation were charged with any offence (trespass of otherwise). The circumstances of the present case almost identical to that of the Golden Eggs matter last year."
  1. Mr Hahnheuser has sworn three further affidavits which are relied upon by the defendant on this application. In the first of those three further affidavits he denies that any damage was done or any break effected at the time of the entry into the plaintiffs' premises. In the second he viewed a copy of the video tape and identified that part of the tape which he had filmed and another member of the defendant had filmed. In the third affidavit he deposes to retaining a Mr Peter Harvey, Corporate Relations Consultant, with a view to that gentleman providing an expert opinion on the possible or likely impact of the tape on the plaintiffs. He exhibited to that affidavit a letter which he had written to Mr Harvey and Mr Harvey's reply.
  1. I will return to the first two of those further affidavits shortly.
  1. Mr Harvey, who is a corporate relations consultant at Burra in the Mid North of South Australia, has offered "an opinion" as to the suitability of the video for mass media broadcasting. He says the video would be suitable only for television clips and as a background to wider coverage.
  1. Mr Harvey offered the further opinion that the injunction will have heightened the curiosity of the public mass media in relation to this matter and that he would expect with release of the footage the public mass media would pursue the story from their own resources.
  1. Mr Harvey has written the following:
"The video footage focuses upon negative aspects of battery caging, and this should be expected from Animal Liberation, whose charter sets them against perceived ill treatment of all animals. The images in this footage do not surprise in the light of previous television and other public mass media treatment of this subject around Australia. To this extent the images could not be construed as exaggerating."
  1. Mr Harvey goes on to offer the further following opinions:
"There appears to be two key communication issues in this case: Issue 1 - Does the footage constitute harm to the viability of Gawler River Eggs? It is doubtful whether public dissemination of the footage would alone affect retail sales. The only action that might result in substantial hurt to the business would be from relevant government authorities, whose intervention in the public interest in these matters may be denied as a result of the injunction. Issue 2 - Would exposure through the public mass media and other channels escalate public interest in battery caging at egg producing plants? The answer is clearly yes. And in this respect, denial of community interest and awareness and the development of a wider community understanding in the method would violate the public's right to know. In summary there appears no good reason to withhold this footage from the public mass media, government authorities and other interested parties. Gawler River Eggs and their industry organisation would have every right to a place in any debate that ensured, and in the public interest that debate should not be denied."
  1. I will return to Mr Harvey's opinion a little later.
  1. The plaintiffs have filed affidavits upon which they rely to oppose the application presently before the court.
  1. The first plaintiff became aware of the defendant's entry to their premises by a report on the radio to the effect that the Animal Liberation had raided a poultry farm during the previous night. He arrived at his farm at 8.00 am. He said that he noticed that there had been forced entry to one of the sheds. Someone, he said, had cut the welded mesh dividing the upper and lower levels of the shed of a sufficient distance to allow person or persons to enter via the space between the upper and lower levels.
  1. There is a clear conflict between the first plaintiff and Mr Hahnheuser on this topic. I cannot resolve that matter on this application.
  1. When the first plaintiff entered the shed he found a large yellow sign with slogans painted on it. He also found $25 and a note which read:
"$1.90 per chicken plus GST."
  1. The first plaintiff made a number of telephone calls which are not relevant for this matter except that he advised the Gawler Police Station by telephone of "the break in".
  1. The police arrived at the farm at 10.45 am and was shown the mesh to which the first plaintiff referred. Whilst the police were on the premises Mr Masters of the RSPCA attended. The RSPCA finished its review at about 12.30 pm on that day.
  1. The RSPCA investigator advised the first plaintiff that there were problems with eight cages out of a total of 2,520 cages. In respect of those eight cages seven cages were overstocked by one bird, having eight birds instead of seven and in the other cage the combined weight of the birds exceeded the permissible limit.
  1. The first plaintiff asserted, in his affidavit, that it was the defendant and Mr Hahnheuser who were responsible for the trespass which occurred on 10 August 2000 and that the trespass had been carried out intentionally in order to obtain as much media attention as possible in advance of a meeting of Ministers and New Zealand representatives in Brisbane on 17 August 2000. The proposed Brisbane meeting was to discuss the future of battery hen farming in Australia and New Zealand.
  1. The first plaintiff further asserts that part of the video tape depicts premises apart from the plaintiffs' premises. It is asserted that the premises are those of Golden Egg Farms.
  1. The first plaintiff asserted, in his affidavit, that if the defendant was permitted to publish, broadcast or disseminate any video footage or visual imagery taken during the trespass the plaintiffs' business would suffer.
  1. The defendant is a voluntary organisation and the plaintiffs assert that in the hearing before Judge Kelly, Mr Hahnheuser advised the Judge that it had very limited financial means and that it was unlikely to be able to retain a legal adviser because of lack of funds.
  1. The plaintiffs' solicitors wrote to the Environmental Defenders Office seeking confirmation as to the defendant's assets in the event that the defendant became liable to an award of damages.
  1. The defendant has not advised the plaintiffs' solicitors or the court of its assets.
  1. The plaintiffs also engaged "an expert" to review the video tape.
  1. In a letter of instructions to Mr Rann of Rann Communications the solicitors indicated to him that he should assume that part of the video footage was not that of the plaintiffs' premises but indeed of the persons of Golden Egg Farms, one of the plaintiffs' competitors.
  1. In any event they asked of Mr Rann the following questions:
"1 Is a television newsroom likely to broadcast all of the video footage appearing on the enclosed tape? If not, how, in your view, would a television newsroom edit the enclosed footage for broadcast as part of either a nightly newsroom or current affairs program? 2 Having regard to the media publicity which Animal Liberation (SA) Inc has generated subsequent to the incident on 10 August 2000: a) What part or parts of the video footage would the television stations be likely to publish/broadcast? b) Is any such video footage likely to be viewed in a fair and balanced light if it is televised publicly. 3 From a marketing perspective, what impact, if any, do you think the televising of the enclosed video footage or any part thereof will have on our clients' egg farming business? 4 From a marketing perspective, do you consider that the televising of the enclosed footage or any part thereof will have any impact on the egg farming industry generally? 5 Any other observations or comments concerning the video footage which you consider to be relevant having regard to your experience."
  1. Mr Rann was provided with a copy of r 38 and Practice Direction 46.
  1. Mr Rann has addressed all of the matters addressed by the plaintiffs' solicitors and I will attempt to summarise his opinion. First the tape is of exceptionally poor quality and would not be suitable for broadcast under normal circumstances but there is enough material contained within the tape which could be used for media broadcast. An editor may not notice that some part of the tape does not depict the plaintiffs' premises. It is likely that the media would wrongly assume that the tape depicted only the plaintiffs' premises. Any material extracted from the provided footage would be highly damaging to the plaintiffs and the industry generally were it to be published or broadcast. He said:
"It would be difficult for the public at large to gain a fair or balanced view of the issue were extracts from this footage to be released publicly through the media. There is also a significant risk that the material would be kept in the archives of various media organisations and used on future occasions when the issue of chicken farming was raised."
  1. Mr Hahnheuser replied to a claim by the plaintiffs that some part of the video film did not depict the plaintiffs' premises in the second of the three further affidavits to which I have already referred.
  1. Mr Hahnheuser identified that part of the video which he had taken and that part of the video which some other person had taken on 10 August 2000.
  1. He said the remainder of the tape does not relate to the attendance by Animal Liberation of the plaintiffs' egg facility on 10 August 2000 and is not relevant to the current matter.
  1. Mr Hahnheuser was called to give oral evidence on this application. He told the court that no part of the video depicting premises apart from the plaintiffs has been released to the media as part of the plaintiffs' premises.
  1. He said that on 10 August 2000 some five minutes of video footage was released to Channels 2, 7, 9 and 10 which was taken exclusively from the video tape which he had taken of the plaintiffs' premises.
  1. It follows therefore that the three commercial stations and the ABC have been provided with five minutes of the video footage which was taken of the plaintiffs' premises.
  1. The plaintiffs do not seek to restrain the television station from broadcasting that video footage. It seems to me that the current orders do not prevent the television stations from broadcasting that footage. The orders sought would also not prevent the television stations from broadcasting that footage.
  1. Let me say something about the expert evidence.
  1. In my opinion, neither the opinion of Mr Rann nor that of Mr Harvey should be accepted. I am not satisfied that they have been asked to give opinions on a matter which would admit of expert evidence.
  1. An expert is entitled to give evidence by way of an opinion where such opinion is necessary because the court could not be expected to be informed of the matter without the assistance of expert evidence. There must be an organised branch of knowledge or a field of expertise in which the witness is an; Clark v Ryan [1960] HCA 42; (1960) 103 CLR 486.
  1. In my opinion, there is no field of expertise which would qualify for expert evidence in this matter.
  1. In any event I am not satisfied that the assumptions upon which the experts have been asked to give their opinions have been properly articulated. As the assumptions are not clear nor are the opinions.
  1. In my opinion their evidence should be rejected.
  1. The plaintiffs obtained the present orders ex parte. The orders have been continued without the court considering whether the orders are appropriate.
  1. On this application the onus still lies upon the plaintiffs to establish that the orders in paragraphs 1(a) and (b) of the Master's orders of 10 August 2000 should be continued. The plaintiffs accepted that onus.
  1. There are three particular matters which must be inquired into to determine whether or not an interlocutory injunction should be granted. The onus is upon the plaintiffs to establish all three of those matters which are:

1 That there is a serious question to be tried;

2 That the plaintiffs will suffer irreparable injury for which damages will not be an adequate remedy; and

3 That the balance of convenience favours a grant of such an injunction.

  1. In Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148 at 153 Mason CJ said:
"The principles governing the grant or refusal of interlocutory injunctions in private law litigation have been applied in public law cases including constitutional cases, notwithstanding that different factors arise for consideration. 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 a granting of an injunction."
  1. In this matter I am satisfied that there is a serious question to be tried in that, on the evidence as it presently stands, there is a probability that the plaintiffs will succeed in at least one of their claims against the defendant.
  1. It would not be appropriate at this time to say much more about the plaintiffs' claim but it should not be assumed that I agree with the opinion offered by Mr Hahnheuser as to the law.
  1. The criminal law makes trespass a criminal offence. The civil law also recognises trespass as an actionable wrong. A trespass to land becomes actionable if a person enters another person's property without excuse or without the consent or the invitation of the landowner; Entrick v Carrington [1765] 19 Howell State Tr 1029. There does not seem to be any dispute that no invitation was offered nor any consent given. I am not sure that the defendant has offered any excuse that would entitle the defendant to have entered. Even if the defendant asserted that it entered to televise the conditions of the premises and the birds because those conditions were a matter of public importance that may not be enough to justify the entry and relieve the defendant of the consequences; Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457 at 461.
  1. If the plaintiffs were seeking an injunction to restrain a further trespass by the defendant or its members there could be no question but that there was a serious question to be tried. However the injunction which is being sought is not to restrain a trespass but to restrain the defendant from publishing the video tapes to the media or any other organisation.
  1. I think that the court does have power to grant a permanent injunction and therefore an interlocutory injunction in the terms sought where the video tape had been obtained in circumstances amounting to a trespass and the use of that video tape would be unconscionable; Lincoln Hunt Australia Pty Ltd v Willesee (supra) at 463.
  1. In that case at 464 Young J said:
"In the instant case, on a prima facie basis I would have thought that there is a lot to be said in the Australian community where a film was taken by a trespasser, made in circumstances as the present, upon private premises in respect of which there is some evidence that publication of the film would affect goodwill, that the case is one where an injunction should seriously be considered. However, there is a long way to go from that point to the point where the court actually grants an injunction. The court will only grant an injunction if it can be seen that irreparable damage will be suffered by the plaintiff if such an injunction is not given. Such may occur where damages are virtually impossible of quantification. It is not only that the plaintiff merely shows that there is a strong prima facie case that the trespass is committed and that it is the sort of case where the court may grant an injunction, it must also show that irreparable damage is likely to be suffered if an injunction is not granted and the balance of convenience favours a grant of an injunction."
  1. In that case the entry to the premises was by the TV media who had cameras rolling at the time of the entry.
  1. In Emcorp Pty Ltd v Australian Broadcasting Corporation [1988] 2 QdR 169 Williams J granted an injunction where the audio visual material was obtained in breach of the legal rights of the plaintiffs. In those circumstances he said it was appropriate for the court to conclude that the considerations of free speech which would otherwise operate in favour of the media could be discounted.
  1. Injunctions were granted against the Australian Broadcasting Corporation by the Full Court of the Supreme Court of Tasmania in Lenah Game Meats Pty Ltd v Australian Broadcasting Corporation (Supreme Court (Tas) Wright and Evans JJ and Slicer J dissenting, 2 November 1999; Unreported BC990712).
  1. In my opinion, the jurisdiction to grant the injunction exists for the reasons given by Young J in Lincoln Hunt Australia Pty Ltd v Willesee.
  1. In this case the plaintiffs have demonstrated that there is a serious question to be tried.
  1. I turn to the question that if the orders sought were not made the plaintiffs would suffer irreparable injury for which damages would not be an adequate remedy.
  1. I am prepared to infer that the plaintiffs' business would be adversely affected by publicity about the conduct of their business especially if that publicity was accompanied by video footage taken on the morning of 10 August 2000.
  1. I am satisfied that if the orders were not made there is a risk that the video tape or parts of it will be displayed on the electronic media and that such broadcast could cause the plaintiffs serious financial injury.
  1. The plaintiffs would have considerable difficulty, in my opinion, in quantifying the damage which they have suffered by reason of the trespass and the unconscionable use of the video which was taken during the trespass, if in fact the plaintiffs, in due course, succeed. That would not of itself necessarily be enough to say that the plaintiffs would suffer irreparable damage.
  1. If the cause of action was based in trespass the plaintiffs might be entitled to exemplary damages.
  1. However, if the plaintiffs have suffered or will suffer significant damage or become entitled to significant exemplary damages there is no certainty and indeed there is a real likelihood that they will not recover those damages.
  1. I think I may infer from the evidence which is before me that the defendant, which is a voluntary organisation, would not be in a position to meet any claim for damages above a nominal amount if an order for payment of damages was made.
  1. In those circumstances if the plaintiffs become entitled to damages whether compensatory or exemplary it is unlikely that the plaintiffs will be able to recover those damages.
  1. However, if the plaintiffs are entitled to exemplary damages those damages will already have crystallised. Those damages in effect were suffered at the time of the trespass. Therefore in a consideration whether the plaintiffs would suffer irreparable damage if an interlocutory injunction was refused the question of exemplary damages should be put aside because it is unlikely that any further damages would be suffered in respect of the defendant's tort of trespass.
  1. It is also likely that the plaintiffs would have already suffered some part of the damages which would give rise to damages for compensation. They would have already suffered all of the damage occasioned by the trespass itself. If they became entitled to damages for the publication of the video most of that damage has already been suffered. That is so because the videos have already been distributed to four of the television stations in South Australia. Those television stations are perfectly at liberty, as I understand the orders, to further publish the video tapes to the print media and to make them available to the members of the electronic media.
  1. The plaintiffs are therefore not able to show, in my opinion, that they would suffer irreparable damages by reason of being unable to receive damages because of the circumstances of the defendant. The plaintiffs have mainly suffered that damage already.
  1. The balance of convenience is difficult. The plaintiffs seek orders preventing publication to the media of the video footage taken on 10 August 2000. The fact is the media have already been provided with five minutes of the video footage taken at that time.
  1. There is, in my opinion, nothing which would presently prevent the media from publishing that video footage.
  1. In those circumstances there seems to be no reason why the order should be made. The damage has been done. The horse has bolted.
  1. However Dr Baxter, who appeared on behalf of the plaintiffs, argued that further publication should be restrained so as to prevent the video footage coming to the attention of the print media and the radio stations. The video footage would be of little assistance to the radio stations. It is true that the print media do not presently have any of the video footage but there is nothing to prevent the print media approaching the four television stations for a copy of the video which has already been released.
  1. It might be said that the orders which are sought will have little effect.
  1. Another matter that has to be taken into account is the failure of the plaintiffs to file a Statement of Claim prior to this application. Notwithstanding these proceedings were issued on 10 August 2000 the plaintiffs had not filed a Statement of Claim before this application was heard. The plaintiffs filed a Statement of Claim shortly after the hearing of this application but I am prepared to say, even without hearing the defendant, that the Statement of Claim is defective in a number of respects. It is clear to me that the Statement of Claim was filed to answer the criticism that no Statement of Claim had been filed. It does not answer that criticism. The plaintiffs cannot use these proceedings simply as a "stop writ". The plaintiffs are obliged to prosecute these proceedings because the orders they seek are consequential upon them making out some sort of cause of action against the plaintiffs.
  1. What disadvantage would the defendant suffer by the making of these orders? The defendant has already provided copies of that part of the video which it believed important to that part of the media which it believed should receive the video, so in that respect it would not suffer a disadvantage by being prevented from doing so in the future.
  1. However, the terms of the order already made would prevent the defendant from using the video tape for the purpose for which entry was made and for the purpose for which the video was taken. It was the intention of those associated with the defendant to obtain a video for the use in proceedings against the plaintiffs under the Act.
  1. Paragraph 1(c) of the present order would frustrate that purpose because there is no video in the possession of the defendant to allow it to publish the video to any complainant in proceedings under the Act.
  1. Paragraph 1(a) of the order also would prevent the defendant from publishing any copy which came into its hands to any complainant. The only copies which could presently come into its hands would be those in the hands of the media or perhaps the experts.
  1. Whether the video will ever be admissible in proceedings, if indeed proceedings are brought under the Act, is not a matter upon which I need to pass any opinion. There will no doubt be arguments that the circumstances which gave rise to the obtaining of the video would mean that the video should be inadmissible in criminal proceedings; Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54. However that is a long way down the track.
  1. What is presently clear is that if the orders are allowed to stand the defendant will not be able to use the video for the purpose for which they say the video was obtained.
  1. I can summarise the position in relation to balance of convenience. The media already has a copy of five minutes of the video which it is free to publish at any time. The media is also free to copy and further distribute the copies which the media presently has. There is now no confidentiality at all in the information contained on the video. If the order is to continue the defendant will be unable to use the video for the stated purpose for which it was obtained; that is in proceedings under the Act.
  1. There seems to me no longer to be any purpose in the continuation of the orders.
  1. I discharge paragraph 1 of the orders made by Judge Kelly on 10 August 2000.
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