Full Case Name:  Windridge Farm Pty Ltd v Grassi

1 HER HONOUR: The defendants’ Notice of Motion, filed on 21 August 2009, seeks leave to file a Further Amended Defence in proceedings brought by the plaintiff in trespass, and in the nature of declaratory and injunctive relief. The Notice of Motion is opposed by the plaintiff.

2 The proceedings arise out of the entry by the defendants onto land leased and occupied by the plaintiff, who conducted the business of a piggery, in July 2006. The defendants went onto the property without the consent of the plaintiff in order to take photographs and film footage of the piggery, in the expectation that the defendants could establish that the plaintiff was failing to comply with appropriate standards for the maintenance and care of the animals.

3 After the defendants left the property, they caused the photographs and film to be shown to representatives of Animal Liberation NSW and to be publicised, thereby intending to provoke a prosecution by the relevant authorities. However, despite an investigation by police and the RSPCA, no action was taken against the plaintiff.

4 The plaintiff commenced proceedings in this Court on 31 January 2008 and later filed a Statement of Claim on 20 March 2008. This Statement of Claim sought aggravated and exemplary damages arising out of trespass. There were various directions hearings over the next five months, culminating in an Amended Statement of Claim on 29 August 2008, which sought declaratory and injunctive relief in relation to the film footage and photographs in the possession of the defendants. In particular, the plaintiff sought an order delivering up the photographs and film to the plaintiff, on the basis that the copyright in those images is held by the defendants on trust for the plaintiff. In the alternative, the plaintiff claimed that the defendants be restrained from any further publication.

5 Such amendments to the Statement of Claim that have occurred since August 2008 have been inconsequential. A Further Amended Statement of Claim was filed on 2 December 2008 in order to join the third defendant whose identity was revealed during discovery, and a Second Further Amended Statement of Claim was filed on 6 July 2009 in order to correct the name of the plaintiff.

6 The Defence filed in the proceedings thus far by all three defendants (on 2 October 2008 and 14 January 2009) were substantially the same, that is, they consisted of bare denials and non admissions. Following a series of unanswered letters to the defendants’ solicitors wherein the plaintiff’s solicitors drew attention to the absence of any substantive defence, the plaintiff ultimately moved on a Notice of Motion filed 2 December 2008 to have the defences struck out pursuant to rule 14.28. The Notice of Motion was heard by James J on 6 April 2009.

7 In the course of his Honour’s judgment, his Honour said :-

There is no doubt that the defence filed on behalf of the defendants was seriously defective. It was reasonable for the plaintiff's solicitors to believe that the defendant's defence would not be limited to simply traversing the plaintiff's claim to possession and that the defendants would wish to raise some affirmative matter by way of defence, the nature of which had not been disclosed in the defence which had been filed. As I have indicated, that belief on the part of the plaintiff's solicitors was well founded. Even if the first order sought in the notice of motion would not have been an appropriate order for the Court to make, in my opinion the second order sought in the notice of motion by way of alternative relief was an appropriate order to seek. The plaintiff's solicitors gave notice on several occasions of their intention to file an application in respect of the defective defence.

8 His Honour directed that the defendants file any amended defence on or before 21 April 2009 and that any matter involving the raising of any affirmative defence should be specifically pleaded.

9 On 21 April 2009 the defendants filed an Amended Defence. Significantly, for present purposes, the defence to the plaintiff’s pleading, that the defendants held the copyright in the photographs and film on trust for the plaintiff (par. 6B of the Further Amended Statement of Claim), was that, in taking the photographs and film footage, the defendants committed no wrong recognisable at law and they denied that they held copyright on trust for the plaintiff.

10 Further directions hearings were held over the following three months, during which the plaintiff was directed to file and serve its evidence by 30 June 2009. It did so. The defendants were directed to file and serve their evidence by 28 July 2009, with the plaintiff to file and serve any evidence in reply by 11 August 2009. The defendants did not comply with that timetable. Discovery is virtually complete and the matter was ready for a date for trial, subject to the defendants filing their evidence.

11 Before proceeding to a consideration of the issues, it is important to appreciate that the claim in trespass is defended simply on the basis that the plaintiff will be put to proof of its entitlement to possession of the property. The defendants admit that they intentionally entered on the land occupied by the piggery without permission. In these circumstances, it may be reasonably assumed that the defendants’ prospects of defeating the plaintiff’s claim on that score are dim.

12 Any restrictions that may be imposed upon the defendants in the future use that might be made of the photographs and film, particularly with respect to the defendants’ links to Animal Liberation, appears to be the most contentious aspect of the litigation. The defendants are in fact funded by Animal Liberation, the Executive Director of which has played an active part in the conduct of the litigation: see Affidavit of Susan Goodman of 28 August 2009, Exhibit SUG 1 tabs 7, 8, 9 and 10.

13 One further observation should be made. The alleged trespass is at the heart of the proceedings. The plaintiff’s claim, that the defendants’ copyright in the photographs and film is held on trust for the plaintiff, turns upon the defendants’ unlawful entry onto the plaintiff’s property, for the purpose of attempting to discredit the plaintiff with respect to the operation of the piggery. This inextricable link between the alleged trespass and the claim for declaratory and injunctive relief, which has been pleaded since August 2008, could not have escaped the defendants’ attention.

14 It is against that background that the application to file a Further Amended Defence, which raises for the first time a positive defence to the plaintiff’s claim for declaratory and injunctive relief, must be assessed. The defendants have been aware of this aspect of the pleadings since August 2008 and were put on notice by James J that an affirmative defence was to be specifically pleaded by 21 April 2009.

The Proposed Further Amended Defence

15 In response to the plaintiff’s pleadings (par. 6B) that :-

by reason of the circumstances pleaded ... above, it is unconscionable and inequitable for the defendants to assert ownership of the copyright .... in [the photographs and the film] against the plaintiff, and the defendants hold such copyright on trust for the plaintiff,

the defendants now plead (par. 6B) that:-

(d) in communicating what they saw taking place upon the land to other persons, including persons acting on behalf of Animal Liberation NSW, they committed no wrong recognizable at law and otherwise rely on the freedom of expression or communication in respect of government or political matters implied in the Constitution of the Commonwealth of Australia recognized in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, and

(f)(iv) they rely on a defence of unclean hands in respect of the poor welfare of pigs kept by the plaintiff at the Windridge piggery, Young, to the extent shown in the Cinematograph Film and Photographs, where that is capable of constituting cruelty within the definition of that term in the Prevention of Cruelty to Animals Act 1979.

16 Section 4(2) of the Prevention of Cruelty to Animals Act provides :-

For the purposes of this Act, a reference to an act of cruelty committed upon an animal includes a reference to any act or omission as a consequence of which the animal is unreasonably, unnecessarily or unjustifiably:

(a) beaten, kicked, killed, wounded, pinioned, mutilated, maimed, abused, tormented, tortured, terrified or infuriated,

(b) over-loaded, over-worked, over-driven, over-ridden or over-used,

(c) exposed to excessive heat or excessive cold, or

(d) inflicted with pain.

17 The proposed Further Amended Defence gives the following particulars of cruelty, namely, that the film depicted pigs experiencing distress and suffering caused by the conditions in which they were kept, including the allegedly inadequate floor area of the stalls, overcrowding, pigs with pressure sores and bursitis resulting from inactivity, excess weight and hard substrate, and pigs with other symptoms said to indicate poor welfare, suffering and distress. It is further particularised that the cage size of the plaintiff’s piggery did not conform to the Model Code of Practice, supported by a finding by the New South Wales Police, inter alia, that "the report found no breaches of the Prevention of Cruelty to Animals Act. Although stall sizes were not the size recommended under the code of practice (pigs), the company managed this problem by placing larger sows in community pens."

18 I note that defendants’ counsel informed the Court, and the defendants’ written submissions confirm, that the defendants seek to establish from the photographs and the film that the conditions under which the pigs were farmed were relevantly cruel, but not by reference to the conditions as they appeared later when the piggery was investigated. It is proposed to call expert evidence in that regard. This aspect of the defence will necessarily cause the plaintiff to seek out and call its own expert evidence. Expert evidence has not previously figured in the proceedings.

19 Further, paragraphs 6B(f)(iv)(c) and 6B(g) plead that :-

The poor welfare of pigs shown in the Photographs and .. Film is capable of constituting cruelty within the definition of that term in the Prevention of Cruelty to Animals Act by the plaintiff in keeping pigs at the Windridge piggery which precludes the plaintiff in good conscience from any relief under a constructive trust in favour of the plaintiff against the defendants as owners of copyright in the Photographs and .. Film.

Otherwise they rely on the freedom of expression or communication in respect of government or political matters implied in the Constitution of the Commonwealth of Australia recognized in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.

The Legislative Framework

20 Section 64 of the Civil Procedure Act 2005 provides :-

(1) At any stage of proceedings, the court may order:
(a) that any document in the proceedings be amended, or

(b) that leave be granted to a party to amend any document in the proceedings.

(2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings.

21 Section 58 of the Civil Procedure Act provides :-

(1) In deciding:

(a) whether to make any order or direction for the management of proceedings, including:

(i) any order for the amendment of a document, and

(ii) any order granting an adjournment or stay of proceedings, and

(iii) any other order of a procedural nature, and

(iv) any direction under Division 2, and

(b) the terms in which any such order or direction is to be made, the court must seek to act in accordance with the dictates of justice.

(2) For the purpose of determining what are the dictates of justice in a particular case, the court:

(a) must have regard to the provisions of sections 56 and 57, and

(b) may have regard to the following matters to the extent to which it considers them relevant:

(i) the degree of difficulty or complexity to which the issues in the proceedings give rise,

(ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,

(iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,

(iv) the degree to which the respective parties have fulfilled their duties under section 56(3),

(v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,

(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,

(vii) such other matters as the court considers relevant in the circumstances of the case.

22 Section 56 relevantly provides:-

(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
(2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.

(3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court.

23 Section 57 provides :-

(1) For the purpose of furthering the overriding purpose referred to in section 56(1), proceedings in any court are to be managed having regard to the following objects:
(a) the just determination of the proceedings,

(b) the efficient disposal of the business of the court,

(c) the efficient use of available judicial and administrative resources,

(d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.

(2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1).

24 The principles enshrined by ss 56, 57 and 58 of the Act operate as a mandatory framework for the determination of pre-trial applications: Dennis v ABC [2008] NSWCA 37 ; Arthur Anderson Corporate Finance v Buzzle Operation Pty Ltd [2009] NSWCA 104 ; Haplin & Ors. v Lumley General Insurance Ltd [2009] NSWCA 372 ; Hans Pet Constructions Pty Limited v Cassar [2009] NSWCA 230. The focus of the Court’s enquiry must be, whether granting leave to amend compromises the just, timely and efficient disposition of the real issues between the parties: see Commissioner of Police for New South Wales v Industrial Commission of New South Wales & Raymond Sewell [2009] NSWCA 198 per Spigelman CJ at [73].

25 Considerations of cost, not just to the parties but to the judicial and administrative resources of the Court, play a significant role in the exercise of the discretion to grant leave. Of course, the exercise of the discretion assumes that the amendment will not be futile, in the sense that it would survive a motion to strike it out.

The Proposed Defence of Unclean Hands and Abuse of Process

26 The defendants contend that it is fairly arguable that, to the extent that the photographs and film over which the constructive trust is claimed by the plaintiff demonstrates that the plaintiff was in fact failing to comply with appropriate standards for maintaining and/or operating the piggery, it constitutes an impropriety with "an immediate and necessary relation to the equity sued for" : Kation Pty Ltd v Lamru Pty Ltd ; Lewis v Nortex Pty Ltd (in liq) [2009] NSWCA 145 per Hodgson JA (Allsop P agreeing). In this respect, it is said that the plaintiff is precluded from claiming in good conscience that the defendants hold copyright in the images on a constructive trust. In other words, it is submitted that the plaintiff comes to equity with unclean hands.

27 Further, it is submitted that, because the relief sought is equitable relief, the plaintiff’s "clean hands" was always an issue in the proceedings. The defendants’ explanation for failing to plead this defence at an earlier time is, in effect, that it did not occur to the defendants’ solicitor until he had read the plaintiff's affidavits, which contained assertions that the plaintiff had not committed any wrongdoing in relation to the welfare of the animals at the piggery.

28 It is difficult to understand how the defendants’ solicitor could not have appreciated from the inception of the proceedings that the plaintiff disputed that its management of the piggery was in any way improper or illegal. The plaintiff’s Statement of Claim of August 2008 referred to the publication of the photographs and film “for the purpose of alleging that the plaintiff was failing to comply with appropriate standards for maintaining the animals at the piggery”. I do not find the defendants’ attempts to justify this aspect of the proposed pleadings very persuasive.

29 There are a number of intermediate steps that are implicit in and necessary to the defendants’ argument. First, the pleading that “the poor welfare of the pigs” is solely attributable to the plaintiff’s conduct or omission assumes that expert evidence is capable of establishing that proposition from an inspection of the photographs and film, without more. Second, the pleading assumes that those images provide a sufficient basis upon which an expert can express the opinion that the condition of the pigs is as a result of treatment by, or omission on the part of, the plaintiff that is capable of constituting cruelty under the Prevention of Cruelty to Animals Act. I remain doubtful that an expert opinion derived in that manner would have the necessary factual basis, but for present purposes I am prepared to assume such evidence is available and admissible. Even so, the proposed defence falls short of alleging that the plaintiff has committed a legal wrong. At its highest, it claims that the plaintiff may have committed a legal wrong.

30 The real difficulty with the defendants’ argument is the lack of the requisite nexus between the right claimed by the plaintiff as the basis for the equitable relief (ownership of the copyright) on the one hand, and the alleged conduct of the plaintiff in conducting the piggery on the other. The former arises out of the defendants’ trespass, which bears no relationship to acts of cruelty allegedly committed by the plaintiff towards the pigs.

31 In Black Uhlans Incorporated v New South Wales Crime Commission & Ors [2002] NSWSC 1060, Campbell J extensively reviewed the authorities on the maxim, including what was meant by “an immediate and necessary relation to the equity sued for”. I gratefully adopt what his Honour said, in particular :-

161 ...., the operation of the maxim is not triggered by any act of wrongful conduct by a defendant, regardless of its nature or connection to the subject matter of the suit.
................................................................................

163 Similarly, Brandeis J has referred to there being a limitation on the types of bad conduct which trigger the operation of the maxim by saying: “Equity does not demand that its suitors shall have led blameless lives”: Loughrin v Loughrin 292 US 216 at 229 (1934). Young J has expressed the limitations on the operation of the maxim by saying, “Unless there is established one of the equitable defences, then general naughtiness or the desire of the court to censor the plaintiff’s conduct, does not enter into the equation when one is considering whether the plaintiff should get relief”: FAI Insurances Ltd v Pioneer Concrete Services Ltd (1987) 15 NSWLR 552, at 554.

.........................................................................

179 If a plaintiff needs to prove his own bad conduct to be able to prove the circumstances which he says entitles him to an equitable remedy, that bad conduct has an immediate and necessary relation to the equity sued for.

32 The following dicta from Isaacs J’s judgment in Meyers v Casey [1913] HCA 50; (1913) 17 CLR 90 ( Rich J agreeing) was also referred to by Campbell J at [170] :-

... the rights asserted by the appellant, namely, membership of the club and public right under the by-laws to enter the racecourse, of course exist, if at all, by reason of circumstances wholly independent of the alleged misconduct; the wrong he complains of, namely, his condemnation by an incompetent and unauthorised tribunal in the one case, and a disregard of natural justice in the other, are equally independent of any misconduct by him. It is therefore impossible to say, in the Lord Chief Baron’s words, that his alleged misconduct has “an immediate and necessary relation to the equity sued for,” or that it was “a depravity in a legal as well as in a moral sense.”
It is altogether different from the cases where the right relied on, and which the Court of equity is asked to protect or assist, is itself to some extent brought into existence or induced by some illegal or unconscionable conduct of the plaintiff, so that protection for what he claims involves protection for his own wrong. No Court of equity will aid a man to derive advantage from his own wrong, and this is really the meaning of the maxim. (at 123-124)

33 I do not accept that anything said by Allsop P and/or Hodgson JA in Kation Pty Ltd v Lamru Pty Ltd ; Lewis v Nortex Pty Ltd (in liq) [2009] NSWCA 145 was intended to dilute the meaning of “an immediate and necessary relation” as discussed in these authorities. The defendants’ submissions seem to suggest that Hodgson JA qualified the requirement by observing that it was not necessary for “the relation [to] be of the nature of contributing to or constituting the equity sued for”. However, that remark must be seen in the context of the facts of that case. The Court found that the relation between fraudulent practices, carried on by two persons over a period of time and later continued by one of them, and the equity sued for was that the practices were conducive to the understatement and disposal of stock in a company, and provided an essential part of the evidentiary material supporting the finding that the equity sued for existed. The Court found that the temporal and evidentiary connection was sufficiently close to justify the application of the unclean hands doctrine.

34 In the present case, the proposition that there is an immediate and necessary relation between the alleged conduct of the plaintiff and the claim for equitable relief may be tested by the following steps. What are the circumstances relied upon by the plaintiff to ground the equitable relief (pars. 4 – 6 of the Statement of Claim)? They are :-

* The defendants trespassed on the plaintiff’s land.
* The defendants took photographs and film footage.

* The copyright in the photographs and film was obtained by the defendants as a result of the trespass.

* The photos and film were published for the purpose of alleging that the plaintiff was mistreating the pigs.

35 Does the plaintiff need to prove that it mistreated the pigs in any way in order to prove these matters? The answer is demonstrably, no. The defendants’ purpose in publishing the photographs and film is admitted by the defendants. In relying upon that motive for the publication, the plaintiff does not, and need not, assert anything in relation to its treatment of the pigs. The defendants’ contention that the doctrine of unclean hands applies in the circumstances of this case must be rejected. I do not regard this proposed defence as arguable.

36 According to the plaintiff, the true explanation for the late introduction of this pleading lies in the very thinly veiled strategy of Animal Liberation to use these proceedings as a platform for the promotion of its campaign against practices in the pig-farming industry, by way of exploring the conditions of the pigs at the plaintiff’s piggery. If I am wrong in reaching the conclusion that this aspect of the proposed pleading has no prospects of success, the plaintiff’s submission that the proposed defence constitutes an abuse of process acquires additional significance, that is, if the submission is made out, it may provide a further basis for refusing leave to amend (s 58(2)(b)(vii) of the Civil Procedure Act).

37 The limits of abuse of process were explored in Williams v Spautz [1992] HCA 34; 174 CLR 509. In the joint judgment, their Honours Mason CJ, Dawson, Toohey and McHugh JJ said at [34] :-

To say that a purpose of a litigant in bringing proceedings which is not within the scope of the proceedings constitutes, without more, an abuse of process might unduly expand the concept. The purpose of a litigant may be to bring the proceedings to a successful conclusion so as to take advantage of an entitlement or benefit which the law gives the litigant in that event.

Later at [39], citing Lord Evershed M.R., in In re Majory (49) (1955) Ch, at pp 623-624, their Honours referred to the general rule:-

that court proceedings may not be used or
threatened for the [predominant] purpose of obtaining for the person so using or threatening them some collateral advantage to himself, and not for the purpose for which such

proceedings are properly designed and exist; and a party

so using or threatening proceedings will be liable to be

held guilty of abusing the process of the court and

therefore disqualified from invoking the powers of the

court by proceedings he has abused.

38 The onus is on the plaintiff to show that the defence of unclean hands is pleaded for the purpose of obtaining a collateral advantage or a benefit not reasonably related to an order that could be obtained in the proceedings : Van Der Lee & Ors v State of New South Wales & Ors [2002] NSWCA 286, per Hodgson JA (Santow JA agreeing).

39 Within the exhibit to the affidavit of Susan Goodman of 28 August 2009 is a document titled "Quarterly Reports to the Christina Fitzsimons Trust" by Mark Pearson. Mark Pearson is the Executive Director of Animal Liberation. The plaintiff became aware that Mr Pearson knew of the identity of the persons who had entered its property and took steps by way of a summons to obtain that information. In due course, Mr Pearson provided the names of two of those persons. The document contains the following :-

I was subpoenaed to the New South Wales Supreme Court to give evidence as to the details of the individuals who allegedly trespassed and provided the evidence that was later given to the police. Interestingly the police refused to give the management a statement to assist their potential bringing of civil trespass charges. It was decided to give information to the piggery management because we decided it would be better to defend them (the trespassers) vigorously against any potential charges. The reason for this decision is that we will be able to call a lot of evidence of how the industry fails to meet its own agreed code standards and how the RSPCA fails to pursue cases of cruelty of undersized stalls particularly after they had won such a case against Boen Boe piggery after I took A Current Affair there in 1998.

40 The exhibit also contains a number of e-mails between 14 March 2007 and 22 July 2008 between Mark Pearson and, variously, members of the committee of Animal Liberation and the individual defendants, wherein the threatened action for trespass by the plaintiff is raised as a matter for urgent discussion before the next committee meeting and a teleconference between Mr Pearson and the defendants is scheduled.

41 The combination of this evidence, together with the admitted facts that Mr Pearson was compelled by the threat of court process to disclose the identity of two of the defendants, that the photographs and film taken by the defendants were given to Mr Pearson and utilised by him to advance the objects of Animal Liberation, and that the defence is being funded by Animal Liberation NSW, found a compelling inference that the proposed pleading of unclean hands is mounted for the purpose of allowing the defendants to explore the conditions in which the pigs are kept by the plaintiff.

42 In this respect, the defendants are using the proposed pleading as a means of obtaining an advantage beyond any that is available under the law and one that is not reasonably related to a judgment in the plaintiff's favour on the issue of trespass.

43 The defendants concede that "there is evidence to suggest that one purpose in defending these proceedings is to raise awareness of the condition of pigs in a commercial piggery, namely the plaintiff's farm." (Defendants’ written submissions in reply) The defendants submit however, that it is not the predominant purpose and that the plaintiff has not discharged the heavy onus it bears to satisfy the Court that there is an abuse of process. Further, it is submitted that the proposed amendment to the defence is for the predominant purpose of "vindicating the defendants in the exercise of their exclusive rights as copyright owners .... , where the imposition of a constructive trust or injunction would deprive or restrain them in the use of those rights."

44 This submission appears to ignore the fact that it is the defendants’ trespass for an ulterior purpose which gives rise to the availability of the equitable remedy sought by the plaintiff. Apart from putting the plaintiff to proof on its occupancy and exclusive possession of the property, the defendants have no arguable defence to the trespass. The plaintiff offered, before the commencement of proceedings by way of Statement of Claim, to settle the matter by the recovery of its costs, an offer that was declined. There has been an attempt at mediation which has failed. The defendants’ entry onto the property was motivated solely by the desire to gather evidence, on behalf of Animal Liberation NSW, of some wrong committed by the plaintiff towards its animals. Given that the relevant authorities failed to prosecute on the basis of that evidence, a remaining avenue is the construction of a defence that is designed to re-agitate that evidence.

45 These factors persuade me to the view that the plaintiff has discharged its onus to satisfy the Court that the proposed amended defence of unclean hands constitutes an abuse of process. This finding constitutes an alternative basis upon which I would refuse the defendants leave to amend.

The Proposed Defence of Freedom of Political Communication.

46 The defendants submit that it is fairly arguable that communications concerning the regulation of animal welfare are protected by the implied freedom of communication with respect to government and political matters. In support of this proposition, they rely upon the dicta of Kirby J (in dissent) in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 281 to 282. Set out below is that part of Kirby J’s judgment that was reproduced by the defendants in their written submissions :-

The regulation of animal welfare within Australia is generally a responsibility of state parliaments and courts. ... The parliaments of the states are provided for in the federal Constitution. Ultimately, they now draw their authority from that Constitution. The states are part of the "indissoluble Federal Commonwealth". The federal Constitution appears to contemplate that state parliaments, by analogy with the federal parliament, will be representative of the people of the state and democratically elected. No other view would be compatible with the exceptional powers afforded to the parliaments of the states in relation to the composition of the senate.
..... broadcasting of ideas about government or politics relevant to the activities of the federal or of a state parliament would fall within the principle expressed in Lange.

47 The defendants characterise the communication of the photographs and film by the defendants to Animal Liberation NSW as matters concerning the regulation of animal welfare. It is further submitted that the regulation of animal welfare is an issue that was already in existence in the proceedings before the application to amend. The first proposition may be self-evident, however the second proposition once again refuses to acknowledge that the plaintiff has only ever taken proceedings for the tort of trespass. There is no aspect of the plaintiff’s pleadings up to the present time, nor is there any aspect of the defendants’ pleadings prior to the application to amend, that puts in issue the regulation of animal welfare generally or pigs in particular.

48 The High Court in Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 held that there existed an implied freedom of political communication but that this entitlement is not freestanding or absolute and extends only so far as is necessary to give effect to those provisions of the Constitution that prescribe the federal system of responsible government. Further, the Court held that the implied freedom will not invalidate a law enacted to satisfy some other legitimate end, provided the law is compatible with the maintenance of the constitutionally prescribed system of government and the law is reasonably appropriate and adapted, or proportional to that end.

49 The first hurdle in the way of the defendants’ argument is the absence of authority in support of the proposition that the communications between the defendants and Animal Liberation NSW are capable of coming within the scope of the principle expressed in Lange, as expounded by Kirby J. in Lenah Game Meats.

50 The latter case involved an application for interlocutory injunctive relief in order to restrain the ABC from distributing, publishing, copying or broadcasting a video of the applicant’s activities in its possum meat processing plant in Tasmania. The video had been obtained by unknown persons who had unlawfully entered onto the premises and passed the film to Animal Liberation Ltd. That organisation subsequently supplied a copy of the film to the ABC. To the extent that a trespass had been committed, the ABC was not complicit in any illegality or impropriety.

51 The High Court determined that an interlocutory injunction was not available in circumstances where there was no serious question to be tried (there being no recognised tort of invasion of privacy available to corporate entities) and therefore no right to final relief. Apart from Kirby J, only Callinan J and Gleeson CJ touched on the subject of the implied freedom of communication. Callinan J expressly disapproved of any extension to a principle with which he fundamentally disagreed, albeit recognising that its existence was established in Lange. Gleeson CJ noted at [20] that :-

The Constitution's protection of freedom of political communication, for example, precludes the curtailment of such freedom by the exercise of legislative or executive power. It restricts lawmaking power and executive action. And, because the common law of Australia conforms to the Constitution, it has an important role in the formulation of common law principle. But it is not a mere balancing factor in a discretionary judgment as to the preferred outcome in a particular case, to be given such weight as to a court seems fit.

52 The following extract from Kirby J's judgment, only part of which is set out in the defendants’ written submissions and reproduced at [46] above, places his Honour’s comments in their appropriate context :-

The regulation of animal welfare within Australia is generally a responsibility of State parliaments and courts. On the other hand, the appellant, as a corporation established under federal law, has powers and responsibilities that extend to facilitating political and governmental discourse throughout the Commonwealth. Common experience suggests that, in Australia, many of the subjects of such discourse extend across State borders. Modern media of communications have reinforced nationwide discussion of matters of general political concern. The parliaments of the States are provided for in the federal Constitution. Ultimately, they now draw their authority from that Constitution. The States are part of the "indissoluble Federal Commonwealth". The federal Constitution appears to contemplate that State parliaments, by analogy with the Federal Parliament, will be representative of the people of the State and democratically elected. No other view would be compatible with the exceptional powers afforded to the parliaments of the States in relation to the composition of the Senate. Moreover, the respondent is engaged in an export business and that business would be damaged by the broadcast of the videotape restrained by the injunction.
In these circumstances, and in respect of the activities of the appellant in this case, I would be prepared to accept, for the purposes of the present appeal, that broadcasting of ideas about government or politics relevant to the activities of the Federal Parliament or of a State parliament would fall within the principle expressed in Lange.

However, this principle does not uphold an inflexible rule. Australian law does not embrace absolutes in this matter. Many regulatory laws, federal and State, continue to operate in ways that are compatible with the representative democracy established by the Constitution. Restrictions, imposed by law, for limited purposes (even where they may incidentally diminish completely uninhibited discussion of issues of government or politics) may yet be compatible with the Constitution. It is only if the law in question is inconsistent with the intended operation of the system of government created by the Constitution that the implied constitutional prohibition has effect.

Conclusion: no invalid law: There is nothing in the general language of the Tasmanian legislation, conferring on the Supreme Court the power to grant interlocutory injunctions, that is inconsistent with the representative democracy created by, or implied in, the Constitution. Nor is this power itself incompatible with the representative democracy created by the Constitution. To the contrary, the power is a feature of that democracy.

Nor, in my view, is the provision of relief by way of interlocutory injunction to restrain the use of information obtained illegally by a trespasser, where such use would be unconscionable, incompatible with the principle in Lange. That principle does not establish a rule expelling all legal restraints. Neither in what this Court said in Lange, nor in what it did there or in Levy v Victoria, is there any support for such an extreme position. It is not one appropriate to the text of, or implications derived from, the Constitution. It is not one compatible with the protection of other values (such as individual reputation) upheld during the entire operation of the Constitution to date. It would not be compatible with the recognition, in statements of fundamental human rights, of values which sometimes compete with free expression (including defence of reputation and privacy) It would be incompatible with the approach taken in other representative democracies similar to our own. (citations omitted and italics not appearing in original) [197] – [201]

53 Further, at [220], Kirby J noted that "this was a matter of federal concern .. because the product involved was wholly exported and the appellant is the national broadcaster, established by federal law with national functions."

54 To the extent that Kirby J. expressed a view in relation to the application of the implied freedom of political communication to matters pertaining to animal welfare, it was a view that was confined to the facts of the particular case. Most importantly, it was a view formulated on the basis that both of the parties to the proceedings were engaged in activities at a federal level. That is patently not the position with respect to the defendants. The evidence before the Court is silent with respect to the activities of the plaintiff, that is, whether the plaintiff exports its products.

55 Furthermore, even acknowledging the theoretical availability of the power to grant injunctive relief in the circumstances of Lenah Game Meats, his Honour was of the view that the type of relief sought by the plaintiff in this case is not inconsistent or incompatible with representative democracy, rather it is a feature of it. His Honour expressly recognised that the grant of an injunction to restrain the use of information such as photographs and film obtained as a result of a trespass, where that use would be unconscionable, was not in any way incompatible with the implied freedom of communication with respect to political matters.

56 In short, Kirby J's judgment in Lenah Game Meats does not support the defendants’ argument on this limb of the proposed defence. The proposed amendment would, in my view, be futile.

Delay

57 The plaintiff submits that the history of the proceedings discloses an element of delay by the defendants in the conduct of their case. The affidavit of Susan Goodman establishes that it took approximately 6 weeks for the plaintiff to properly serve the first defendant with the summons, that it took the first and second defendants over one year to file a properly pleaded defence, that the first and second defendants were over five months late in providing discovery, that the third defendant further failed to provide discovery in accordance with the Court's directions, that the defendants have failed to reply to the plaintiff's letter raising possible defects in the defendants’ discovery and finally, that the defendants have failed to file and serve their affidavit evidence despite being ordered to do so by 28 July 2009.

58 The defendants’ response to these submissions assert that to the extent that there has been delay it has been of a minimal nature and there has been delay on both sides. The defendants are represented by a firm of solicitors based in Melbourne and that has on occasions contributed to the late service and filing of documents.

59 Of more concern however, is the prospect of further delay in the setting of a hearing date, should the defendants be granted leave to amend. I have already adverted to the necessity for both sides to put on expert evidence in the event that the Court is required to decide whether the photographs and film depict any relevant cruelty in the treatment or maintenance of the pigs. I am not persuaded that any of the explanations advanced by the defendants for the failure to plead affirmative defences in compliance with the timetable set by James J are satisfactory.

60 These considerations alone may not have been sufficient to warrant a refusal of leave to amend, had the defendants been able to persuade the Court that the proposed defences were necessary in order to resolve the real issues in the proceedings or that they had any prospects of success. When they are taken into account, together with the conclusions I have reached with respect to the futility of the proposed defences, the outcome is even more compelling.

61 For all of the above reasons, I dismiss the defendants’ Notice of Motion with costs.