Federal Court of Australia

The Game Meats Company of Australia Pty Ltd v Farm Transparency International Ltd [2025] FCAFC 104

ORDERS

THE COURT DECLARES THAT:

1.    The respondent holds the copyright in the images (and copies thereof) obtained or captured by the respondent between 9 January 2024 and 13 April 2024 at the appellant’s business undertaking conducted at 319 Hughes Lane, Eurobin, Victoria, 3739 (the Premises) (including the 14-minute Footage as defined in the reasons for judgment) on trust for the appellant.

THE COURT ORDERS THAT:

2.    The appeal be allowed.

3.    The cross-appeal be dismissed.

4.    Orders 1, 4 and 5 made on 19 December 2024 be set aside.

5.    The respondent be permanently restrained from publishing (other than to the Commonwealth Department of Agriculture, Fisheries and Forestry) any of the images (and copies thereof) obtained or captured by the respondent between 9 January 2024 and 13 April 2024 at the Premises (including the 14-minute Footage as defined in the reasons for judgment).

6.    Within 7 days, the respondent execute an assignment in writing to the appellant of the copyright in the images (and copies thereof) which the respondent obtained or captured between 9 January 2024 and 13 April 2024 at the Premises, and in the event of any default, the Registrar be directed to execute such a transfer on behalf of the respondent under r 1.37 of the Federal Court Rules 2011 (Cth).

7.    Within 7 days, the respondent permanently delete all images of the appellant’s business undertaking in its possession or control, obtained or captured from the cameras placed in the Premises by the persons who entered the Premises on behalf of the respondent between 9 January 2024 and 13 April 2024.

8.    Within 14 days, the respondent file with the Court an affidavit attesting to:

(a)    the permanent deletion of all images of the appellant’s business undertaking in the respondent’s possession or control, obtained or captured from the cameras placed in the Premises by the persons who entered that location on behalf of the respondent between 9 January 2024 and 13 April 2024; and

(b)    the identity of all persons or entities to whom images of the business undertaking of the appellant at the Premises obtained or captured by the cameras installed by the persons who entered the Premises between 9 January 2024 and 13 April 2024 were provided and the date and time and the means by which such images were provided to such persons or entities.

9.    Until further order, and subject to order 10 below, pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) on the ground that the order is necessary to prevent prejudice to the proper administration of justice:

(a)    Exhibit A1 tendered at trial of the proceedings;

(b)    Exhibit CD5 to the affidavit of Christopher James Delforce affirmed 9 July 2024; and

(c)    any video or images on the Court file, or link to such video or images, depicting events at the Premises between 9 January 2024 and 13 April 2024,

(together, the Confidential Material):

(d)    are to be marked “confidential” and kept in a confidential section of the Court file; and

(e)    are not be published or made available and not be disclosed to any person or entity.

10.    Order 9 above shall not prevent disclosure of the Confidential Material to:

(a)    the appellant, its solicitors and counsel; and

(b)    the solicitors and counsel for the respondent.

11.    The respondent pay pre-judgment interest of $2,010.86 under s 51A of the Federal Court of Australia Act 1976 (Cth) on the amount of $30,000 awarded as general damages for the period from 1 March 2024 to 19 December 2024.

12.    In relation to the question of costs of the proceedings at first instance and of the appeal:

(a)    the appellant file and serve written submissions and any affidavits within 14 days;

(b)    the respondent file and serve written submissions and any affidavits within a further 14 days; and

(c)    the appellant file and serve any submissions and affidavits in reply within a further 7 days.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BURLEY J:

1    I agree with the reasons of Justice Jackman and the orders which he proposes.

Associate:

Dated:    13 August 2025

REASONS FOR JUDGMENT

JACKMAN J:

2    This is an appeal from the decision of the primary judge in The Game Meats Company of Australia Pty Ltd v Farm Transparency International Ltd [2024] FCA 1455 (the Primary Judgment or PJ).

Salient Facts

3    The appellant (GMC) operates a halal abattoir in Eurobin, Victoria, at which it slaughters and processes goats for export under a licence issued by the Victorian government. GMC operates from private premises (the Eurobin Premises) which at all relevant times were secured by means of a six-foot cyclone metal chain and barbed wire fence located around its perimeter. Access to the Eurobin Premises is secured by an electronically-controlled iron gate, which is typically kept closed. The outside of the gate displays signs, one of which states “Restricted Area. Do Not Enter, Authorised Personnel Only”, and another reads “Stop. All Visitors Must Report to the Office”.

4    The respondent (FTI) conducts an animal protection advocacy operation which aims, among other things, to educate members of the public about matters concerning animal exploitation and suffering at farms, slaughterhouses and other commercial businesses.

5    On seven occasions between 9 January and 13 April 2024, FTI’s employees or agents gained access to the Eurobin Premises for the purposes of installing and later retrieving covert video recording equipment. On each occasion, they entered the Eurobin Premises at night by crawling under a section of the perimeter fence without the knowledge or authority of GMC. It was not in contest at the trial that they were trespassing as agents of FTI and with its authority: PJ [6] and [82]. The equipment that they installed was used to obtain footage of activity within the Eurobin Premises. From that footage, FTI created a video of 13 minutes and 57 seconds in duration (the 14-minute Footage).

6    On 3 May 2024, an employee of FTI sent the 14-minute Footage by way of complaint to the Department of Agriculture, Fisheries and Forestry (the Department). On 5 May 2024, an officer of the Department sent a copy of FTI’s complaint to GMC. On 13 or 14 May 2024, FTI sent the 14-minute Footage to a local television news network (Channel Seven), which ran a story about the matters depicted in it on 17 May 2024, although it did not publish the footage itself. On 17 May 2024, FTI uploaded the 14-minute Footage on its website, together with a media release and a number of still images obtained from the 14-minute Footage. On the same day, GMC commenced the present proceedings.

7    An expedited final hearing was conducted on 5–9 August and 3 September 2024 and the Primary Judgment was delivered on 19 December 2024. The primary judge awarded GMC damages in the sum of $130,000, comprising general damages of $30,000 and exemplary damages of $100,000. However, the primary judge held that GMC was not entitled to an injunction to restrain FTI from publishing any of the video footage that it obtained at the Eurobin Premises, and also held that GMC was not entitled to the benefit of a constructive trust over the copyright in the 14-minute Footage.

8    The primary judge found that by sending the 14-minute Footage to Channel Seven and publishing it on the FTI website, FTI sought to subject GMC to a measure of publicity that could only ever have been harmful to GMC, and that those publications were made in pursuance of FTI’s objective to end all forms of business that involved causing harm to animals: PJ [123]. The primary judge held that the making of those publications was actuated by a desire to harm GMC’s business: PJ [128]. Similarly, the primary judge found that FTI’s purpose in seeking to publish the 14-minute Footage was to visit loss upon GMC: PJ [142]. In a later passage, the primary judge found that FTI intended to use the 14-minute Footage in a way that would (or was intended to) harm GMC commercially, that being FTI’s purpose in effecting the trespasses and creating the footage: PJ [165]. The primary judge described FTI’s intention as being to subject GMC to a “public shaming campaign”: PJ [179].The primary judge also found that it was more likely than not that, if it was able to publish the footage that it has obtained, FTI would use (or seek to use) the ensuing publicity to further its objectives, both in terms of its advocacy of “meat-free living” and its ongoing efforts to raise funds in support of its activities: PJ [187].

Should the Court impose a constructive trust over the copyright in the cinematograph film, with ancillary relief? (Grounds 5 and 6)

ABC v Lenah

9    In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199 (ABC v Lenah) at [102], Gummow and Hayne JJ (with whom Gaudron J at [58] and Callinan J at [309] agreed) said that a cinematograph film may have been made 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, and 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. Their Honours said that 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 1968 (Cth) (the Copyright Act). In those circumstances, their Honours said that the plaintiff may obtain a declaration as to the subsistence of the trust and a mandatory order requiring an assignment by the defendant of the legal (ie statutory) title to the intellectual property rights in question, noting that s 196(3) of the Copyright Act provides that an assignment of copyright does not have effect unless it is in writing signed by or on behalf of the assignor.

10    In that passage, Gummow and Hayne JJ used the language of possibility, no doubt because the ultimate decision would depend upon the particular facts of the case and because no contention to this effect had been advanced in ABC v Lenah. However, the passage indicates that there is no objection in legal principle to the imposition of a constructive trust over the relevant copyright which was created by means of unlawful conduct if the circumstances show that it is inequitable and against good conscience for the maker of the film to assert the copyright conferred by statute. The passage was referred to with apparent approval by Kiefel CJ, Bell and Keane JJ in Smethurst v Commissioner of the Australian Federal Police [2020] HCA 14; (2020) 272 CLR 177 (Smethurst) at [84].

11    At footnote 217 of that passage (at [102]), their Honours referred to various authorities collected and discussed in H Laddie, P Prescott and M Vitoria, The Modern Law of Copyright and Designs (2nd ed, Butterworths, 1995) Vol 1 (The Modern Law of Copyright and Designs) pp 582-4, in which copyright, although belonging to an author at law, was regarded as being held on trust by the author for another person. Those authorities establish the availability of a constructive trust where it would be inequitable for the maker to claim copyright over the intellectual property as against a defendant: see The Modern Law of Copyright and Designs at [11.79]; Massine v de Basil [1936-45] MCC 223; Harold Drabble Ltd v Hycolite Manufacturing Co (1928) 44 TLR 264; [1923-28] MCC 322. However, the particular facts of those cases consist of pre-existing relationships between the parties, for example works created by a partnership, a director or employee of a company, or copyright works brought into existence or at the request of or on the instructions of an intended owner who has paid for the making of the work. Whether a pre-existing fiduciary or other relationship between the parties is required for a constructive trust to arise is discussed below. Notably however, despite there being no pre-existing relationship between the parties in ABC v Lenah, the High Court did not dismiss the possibility of a constructive trust arising, in reliance on those authorities. The remedy was not imposed in that case as no claim was made by Lenah as to copyright over the cinematograph film (at [103]).

12    At footnote 218 (at [102]), their Honours referred to Federal Commissioner of Taxation v United Aircraft Corp (1943) 68 CLR 525 (United Aircraft) at 546; Adamson v Kenworthy (1931) 49 RPC 57 (Adamson v Kenworthy) at 72-3; and Sterling Engineering Co Ltd v Patchett [1955] AC 534 (Sterling Engineering) at 544, 548, being cases where a constructive trust was imposed over patents obtained by licensees or employees to remedy legal wrongs, specifically breaches of their obligations to their licensors or employers. These were thus also cases of a pre-existing relationship between the parties.

13    In United Aircraft, an Australian company ascertained special knowledge of the intricate components required to manufacture aeronautical engines from an American company, which were not yet the subject of a legal patent in Australia, and which the Australian company maintained after the termination of the licence between the two companies. The case concerned whether the American company was liable to pay income tax on the royalties paid to it by the Australian company. However, in addressing the separate issue of patent ownership, Williams J said that the American company, despite having no legal interest in the patent under Australian law, could retain a monopoly over the invention by only disclosing the manner of manufacture to the Australian company in such circumstances that it is under an express or implied obligation only to use the knowledge for the purposes for which it has been disclosed (at 546). Justice Williams (at 546) said that if “the person to whom the disclosure has been made wrongly uses the information to acquire letters patent for the invention [including after the termination of the licence], equity will declare that he is a trustee of the letters patent for the person who has made the disclosure, and… will order the defendant to assign the patent to the plaintiff”. Put simply, a constructive trust could be imposed to confer a beneficial interest on a party who otherwise does not have a legal patent.

14    In Adamson v Kenworthy, the defendant, a draftsman, was employed by the plaintiffs. The defendant was instructed to design a crane brake, a branch of work for which he claimed he had not been directly engaged. After initial unsuccessful attempts at the design, two years later, he incorporated a unique resilient disc into the brake, which proved satisfactory. The design was patented in the defendant’s name, who granted a licence to another company for its use. The plaintiff employer claimed that the defendant was a trustee for it over the patented design, and the draftsman’s conduct was in breach of his obligations. Justice Farwell, in the Chancery Division of the High Court, held that the defendant evolved the invention the subject of the patent as a result of instructions given to him by the plaintiffs and in the discharge of his duty. The declarations and injunction were granted, and the beneficial ownership of the patent was assigned to the plaintiff company.

15    Sterling Engineering also concerned the beneficial interest in a patent over inventions created by an employee while in the employ of a company. Lord Reid said, in commenting on the existence of fiduciary relationships, that in relation to anything not covered in an agreement between the company (appellant) and employee (respondent), “the ordinary rule inherent in the parties’ relationship of master and servant must apply, and therefore the patents in question belong to the appellants” (at 548). However (as will be discussed below), it is not necessary for an antecedent fiduciary relationship to be established for such a remedy to be imposed.

16    It should also be noted that at [98], Gummow and Hayne JJ emphasised that the notion of unconscionable behaviour does not operate wholly at large. That is consistent with other statements by their Honours cautioning against general resort being made to the concept of “unconscionability”. In Garcia v National Australia Bank Limited [1998] HCA 48; (1998) 194 CLR 395 at [34], Gaudron, McHugh, Gummow and Hayne JJ said that the statement that enforcement of the transaction would be “unconscionable” is to characterise the result rather than to identify the reasoning that leads to the application of that description, and thus proceeded to analyse analogous circumstances in which that description had been applied. In Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd [2003] HCA 18; (2003) 214 CLR 51 at [43], Gummow and Hayne JJ acknowledged that the uses of the terms “unconscionable” and “unconscientious” in diverse areas may have masked rather than illuminated the underlying principles at stake. Consistently with that caution, and adopting the traditional judicial technique in a common law system, it is important to reason from the established cases where a constructive trust has been imposed in broadly similar circumstances; that is, cases where there is no pre-existing fiduciary obligation which the defendant has undertaken to the plaintiff, but where a constructive trust is imposed in light of the nature of the defendant’s wrongdoing by which the relevant asset has been obtained. Those cases must be approached on the basis that equitable principles, like common law principles, have an inherent capacity to be adapted to different circumstances, particularly having regard to the foundations of equitable principles in notions of unconscionability.

Cases of constructive trusts being imposed where there is no pre-existing fiduciary relationship

17    One line of cases concerns property which is obtained by theft or fraud, in which case equity ordinarily imposes a constructive trust on the thief or fraudulent recipient. That principle was stated in the case of theft by O’Connor J in Black v S Freedman & Co (1910) 12 CLR 105 (Black v Freedman) at 110, and approved by the Full Federal Court in Grimaldi v Chameleon Mining NL (No 2) [2012] FCAFC 6; (2012) 200 FCR 296 (Grimaldi) at [255] (Finn, Stone and Perram JJ). In the case of fraud, the principle was stated by Lord Browne-Wilkinson in Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669 (Westdeutsche) at 716 C–D. The two passages by O’Connor J and Lord Browne-Wilkinson respectively were approved by the New South Wales Court of Appeal in Heperu Pty Ltd v Belle [2009] NSWCA 252; (2009) 76 NSWLR 230 at [92]–[94] and [155] (Allsop CJ, with whom Campbell JA and Handley AJA agreed); Sze Tu v Lowe [2014] NSWCA 462; (2014) 89 NSWLR 317 at [141]–[162] (Gleeson JA, with whom Meagher and Barrett JJA agreed); and Fistar v Riverwood Legion and Community Club Limited [2016] NSWCA 81; (2016) 91 NSWLR 732 at [36]–[39] (Leeming JA, with whom Bathurst CJ and Sackville AJA agreed).

18    It would not be appropriate to describe the conduct of FTI in the present case as fraudulent, given that its purpose was not to deceive GMC (except perhaps in an attenuated sense of the word “deceive”). However, there are strong similarities between the present case and a case of fraud or dishonesty. FTI engaged in a surreptitious intrusion onto and within GMC’s property to gain an advantage which was not lawfully available to it, and to cause detriment to GMC. Further, the primary judge found that in publishing the 14-minute Footage, FTI sought to harm GMC’s business by adverse publicity (PJ [123], [128], [142], [165] and [179]), and to gain advantages for itself and its cause (PJ [187]). Although FTI did so for what it regards as a noble cause, the end does not justify the means. In addition, in the context of making findings in relation to exemplary damages, the primary judge found that FTI’s conduct met the standards of conscious and contumelious disregard for GMC’s rights, or high-handed or deliberate conduct: PJ [236] and [249].

19    Another line of authority for the imposition of a constructive trust where there is no pre-existing fiduciary relationship between the parties arises in the case of a mistaken payment once the recipient knows of the mistake. Lord Browne-Wilkinson in Westdeutsche at 715B–C said that this may well justify the decision (though not the actual reasoning) of Goulding J in Chase Manhattan Bank NA v Israel-British Bank (London) Ltd [1981] Ch 105. That position is now supported by an unbroken phalanx of Australian authority: Wambo Coal Pty Ltd v Ariff [2007] NSWSC 589; (2007) 63 ACSR 429 at [32]–[44] (White J); Shields v Westpac Banking Corporation [2008] NSWCA 268 at [16], [19] and [20] (Hodgson JA, with whom Spigelman CJ and Macfarlan JA agreed); Credit Union Australia Ltd v Lyons [2009] NSWSC 1188 at [29] (White J); Focus Metals Pty Ltd v Babicci [2014] VSC 380 at [111]–[115] and [169] (Sloss J).

20    In the case of receipt of a payment which is known to have been mistaken, the defendant is entirely passive, and does not engage in any conduct to bring about the transaction in question. In that sense, it should be seen as a weaker case for a constructive trust than the circumstances of the present case. As with the case of money obtained by theft or fraud, the asset received by the defendant was previously held by the claimant, rather than being a new asset created by the defendant itself, but in light of the cases to which I now turn, I do not regard that as a point of sufficient distinction with the present case to lead to a different result.

Cases of constructive trusts being imposed over an asset not previously owned by the claimant and without a pre-existing fiduciary relationship

21    A potential ground of distinction lies in the fact that, in the case of fraud or theft, the wrongdoer procures the transfer of pre-existing property owned by the plaintiff, whereas in the present case, the wrongdoer created property which did not previously exist, and over which the law of copyright confers ownership on the wrongdoer. For the following reasons, however, I do not regard that potential ground of distinction as sufficient to deny the imposition of a constructive trust.

22    In the first place, if that were a sufficient ground of distinction to negate the imposition of a constructive trust, that would undermine the very possibility of a constructive trust which the High Court in ABC v Lenah said was potentially available as a matter of principle.

23    I note that the Full Federal Court in Grimaldi at [256] referred to the existence of two relevant categories of cases for the imposition of a constructive trust, namely (1) cases where the property or interest sought to be recovered (or its traceable proceeds) is, or had been, the property of the claimants, and (2) cases where a delinquent fiduciary or a third party participant in fiduciary or trust wrongdoing has derived the property on their own account as a result of their wrongdoing. The second category was expressed as concerning breaches of pre-existing fiduciary duties, which is plainly not the case with respect to FTI. However, the Full Court did not suggest that those two categories exhaust the circumstances in which a constructive trust may be imposed. Rather, the Full Court’s analysis was focused on liability under Barnes v Addy (1874) LR 9 Ch App 244.

24    There is also a separate line of cases where no pre-existing fiduciary duty was found to be owed by the wrongdoer to the claimant, and the property in question was never owned by the claimant. The constructive trust which arose in Pallant v Morgan [1953] Ch 43 was of that nature. Two potential bidders at an auction arranged that only one should bid and the other would be entitled to a portion of the land if the bid were successful, but without agreeing upon the apportionment with sufficient certainty for the arrangement to be contractually binding. Harman J concluded that the bidding party (who succeeded at the auction) held the property on a constructive trust for himself and the other party in equal shares. Plainly the non-bidding party did not have a pre-existing interest in the property, and indeed on the evidence would have been out-bid by the bidding party at the auction if he had participated, and thus would never have had an interest in the property if it were not for the arrangement in question. The case was applied by the UK Court of Appeal in Banner Homes Group Plc v Luff Developments Ltd [2000] Ch 372 (Banner Homes v Luff), in which Chadwick LJ (with whom Evans and Stuart-Smith LJJ agreed) pointed out (at 388F–G) that the plaintiff (ie the non-bidding party) did not suffer any detriment as a consequence of the arrangement not to bid, as he would have been out-bid by the other party. However, the bidding party obtained an advantage from the arrangement in that, by keeping the plaintiff out of the market, he was able to obtain the property more cheaply than if there had been rival bidding by the plaintiff. According to Chadwick LJ, either an advantage to the defendant or a detriment to the plaintiff is necessary to generate the Pallant v Morgan equity, but not necessarily both, and even if both are present they need not correspond (at 398E–399A).

25    The “Pallant v Morgan equity” has been considered as an instance of a constructive trust being imposed where the circumstances in which the defendant obtains control of the property make it unconscionable for him or her thereafter to assert a beneficial interest in the property: Paragon Finance plc v D B Thakerar & Co [1998] EWCA Civ 1249; (1998) 1 ITELR 735; [1999] 1 All ER 400 (Paragon Finance) at 409 (Millett LJ with whom Pill and May LJJ agreed); cited with approval in Banner Homes v Luff at 383–4 and Williams v Central Bank of Nigeria [2014] UKSC 10; [2014] AC 1189 at [11] (Lord Sumption, with whom Lord Hughes agreed).

26    The High Court of Australia considered the decisions in Pallant v Morgan and Banner Homes v Luff in John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; (2010) 241 CLR 1 (French CJ, Gummow, Hayne, Heydon and Kiefel JJ). In that case, the parties had signed a memorandum of understanding (MOU) whereby JACS would seek to obtain an option to purchase land for a new entity, which it would then exercise, and the Club would not seek to buy that land. The Club did not have an ownership interest in the property, apart from being a lessee, prior to the MOU. JACS purchased the option land through its nominee, Poplar, and the Club alleged that Poplar held its interest in the option land on constructive trust for them. The New South Wales Court of Appeal held that a constructive trust arose, however the decision was reversed unanimously by the High Court.

27    The Court of Appeal did not regard the pre-existence of a fiduciary relationship as necessary for its conclusion that a constructive trust should be imposed (White City Tennis Club Ltd v John Alexaner’s Clubs Pty Ltd [2009] NSWCA 114; (2009) 261 ALR 86 at [64], [83] per Macfarlan JA, with whom Giles and Basten JJA agreed) and the High Court did not disagree with that reasoning as a matter of principle (at [78]–[83]). Nor did the High Court disagree with the Court of Appeal’s statement of principle (at [82]) that Pallant v Morgan did not depend on the existence of a contract but upon it being fraudulent of the defendant to set up an absolute title. Rather, the High Court distinguished Pallant v Morgan and Banner Homes v Luff on the facts of the case (at [66]–[69]).

28    The circumstances of the present case are fundamentally different from the Pallant v Morgan line of cases, in that the wrongdoer in the present case did not generate an expectation by its voluntary conduct that it would confer a benefit on the claimant by way of the transaction in question. However, the Pallant v Morgan line of cases does demonstrate that there is no objection in principle to the imposition of a constructive trust merely because there was no pre-existing fiduciary relationship between the parties and the property in question was never owned by the claimant. Further, the moral calibre of the wrongdoing in the present case puts it on a similar moral plane to cases where a constructive trust is imposed on a fraudster or thief, or on the recipient of a payment which is known to be mistaken.

The Reasoning of the Primary Judge

29    Why then did the primary judge not find in favour of GMC? His Honour expressed an intuitive view in favour of GMC (at PJ [177]), in saying that there is 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. (I note that the primary judge’s reference to “information” should more properly have been a reference to property or copyright.) However, the primary judge gave two reasons for finding against GMC.

30    First, the primary judge regarded the case as analogous to Windridge Farm Pty Ltd v Grassi [2011] NSWSC 196; (2011) 254 FLR 87 (Windridge). The primary judge at PJ [164] set out some passages from Windridge, namely [127]–[130] and [134]–[135], dealing with a claim for a constructive trust over copyright in photographs and video footage created by animal rights activists while trespassing on the piggery owned by the plaintiff. Justice Hall found that there was no evidence that the defendants intended any publication of the film or photographs or that they had done so beyond making them available to an animal rights organisation for investigation: Windridge at [128]. Specifically, the film would only be given to a veterinarian for an opinion as to the stall conditions of the pigs: Windridge at [105]–[106]. The defendants had no purpose of publishing the film in the media, or otherwise of harming the plaintiff’s reputation or business: Windridge at [105]. Further, Hall J found no evidence that such publication as was made adversely impacted on the goodwill or standing of the plaintiff: Windridge at [128]. Justice Hall found no evidence of any intention or proposal by the defendants to profit from or otherwise use the films or photographs, or that there was a real risk of harm to the plaintiff in the future through any such use: Windridge at [134].

31    The present case is readily distinguishable on each of those points, as the primary judge acknowledged at PJ [165]–[166]. At PJ [165], the primary judge said that the trespasser here intended to use what was created during the trespass in a way that would (or was intended to) harm GMC commercially, consistently with his Honour’s findings at PJ [123], [128], [142], [165] and [179]. At PJ [166], the primary judge rejected FTI’s submission that its purpose was no more than to investigate GMC’s practices. At [187], the primary judge said that it was more likely than not that, if it were able to publish the video footage that it had obtained, FTI would use (or seek to use) the ensuing publicity to further its objectives, both in terms of its advocacy and its ongoing efforts to raise funds in support of its activities.

32    One additional element of Hall J’s reasoning, however, calls for comment, namely the finding that the video film and photographs in question did not themselves constitute objects that had any intrinsic value, and thus could be distinguished from the case of stolen money being made the subject of a constructive trust as in Black v Freedman: [132]. (The primary judge did not include that aspect of Hall J’s reasoning in his Honour’s extract from the judgment.) With great respect to Hall J, it does not matter whether the advantage which is sought to be (and actually is) obtained by the defendant arises because the asset in question is intrinsically valuable, or if its value is derived only from the particular use to which it is intended to be put by the defendant in accordance with the defendant’s own individual objectives.

33    I note that the primary judge expressed a further possible ground of distinction at PJ [165] and [179], namely that, unlike in this matter, the defendants in Windridge were no longer in possession of the footage. However, the constructive trust which was claimed in Windridge, as in the present case, was over the copyright in the film, not the physical film itself. The copyright remained vested in the defendants in Windridge by force of the Copyright Act, irrespective of whether they still had possession of the photographs and film themselves.

34    The primary judge at PJ [180] also regarded Smethurst as a relevant authority, in that the trespass there was also deliberately committed with the intention of obtaining information for later use against (relevantly) its victim (although not with actual knowledge that it constituted a trespass). That case is, at most, tangential to the constructive trust aspect of the present case. Smethurst concerned the availability of an injunction to compel the delivery up or destruction of materials seized under an invalid search warrant, or to restrain the Commissioner from providing that material to prosecuting authorities. The case did not concern any question of a constructive trust over property derived or obtained from unlawful conduct. The reasons of the majority did take into account the public interest in the investigation and prosecution of crime and hence the disclosure of criminality: see [99]–[104] (Kiefel CJ, Bell and Keane JJ) and [160]–[161] (Nettle J); and see also the dissenting judgments of Gageler J at [133]–[138] and Edelman J at [274]–[279]. However, that is not an element of the present case. As the primary judge indicated (at PJ [107]), FTI made clear at the trial that the Court would not be invited to make findings as to whether there were any breaches of the criminal law depicted in the 14-minute Footage. Further, the primary judge said (at PJ [185]) that his Honour would not accept that the nature of the events depicted in FTI’s footage should serve as a discretionary basis upon which to deny GMC relief in equity, and that conclusion is not challenged by way of notice of contention in this appeal.

35    The second reason given by the primary judge for not finding in favour of GMC on the question of a constructive trust over the copyright was expressed in terms of a perceived absence of precedent. The primary judge said that his Honour “was not taken to any authority to substantiate the proposition that equity might intervene to qualify proprietary interests (including in the nature of copyright) in information obtained as the intended and direct result of tortious or criminal wrongdoing”: PJ [181]. The primary judge decided to refrain from what his Honour referred to as “indulging in the kind of ‘bold step’ that trial judges should ordinarily leave for higher consideration”, referring to Minister for Environment v Sharma [2022] FCAFC 35; (2022) 291 FCR 311 (Minister for Environment v Sharma) at [753]–[754] (Beach J).

36    With respect, there cannot be said to be an absence of authority on the point in light of ABC v Lenah at [102], which recognised the principled nature of the constructive trust over copyright which is sought in the present case. Further, his Honour’s reference to “proprietary interests … in information” raises a false issue. There is a general objection to information being treated as property, in that information is normally open to all who have eyes to read and ears to hear: Boardman v Phipps [1967] 2 AC 46 at 127 (Lord Upjohn). That objection is not absolute and must be heavily qualified in relation to confidential information and trade secrets: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 at [118]. But the relevant property here is copyright over a cinematograph film, not merely information.

37    As to the suggestion that finding a constructive trust over the copyright in this case is too bold a step to be taken by a trial judge, I respectfully disagree. The path was laid by four judges of the High Court in ABC v Lenah. Their Honours were not expressing merely theoretical possibilities but a realistic outcome in an appropriate case. It is difficult to think of a clearer case than this for its application, especially given FTI’s forensic decision not to invite the primary judge to make any findings as to whether any of the events depicted in the 14-minute Footage amounted to breaches of the criminal law. The remarks of Beach J in Minister for Environment v Sharma were entirely appropriate in the context of a claim for a novel (and, for that matter, highly unorthodox) duty of care allegedly owed by the federal Minister for Environment to Australian children when deciding whether to approve an extension of a coal mine to take reasonable care to avoid causing personal injury or death arising from emissions of carbon dioxide. Those remarks are not apposite to the application of a principle which has been found by the High Court to be available.

FTI’s Submissions

38    FTI submits that this Court should not adopt the reasoning in ABC v Lenah at [102]. FTI submits that copyright is not a positive right to do something that is otherwise prohibited, and is not a licence to publish, but is essentially a right to prevent others from doing various things. FTI submits that by the mere act of publishing the footage in this case, FTI would not be exercising any right under the Copyright Act. FTI submits that it has not asserted, and in light of its objectives, would never assert any right under the Copyright Act as against any person. Nor, according to FTI’s submissions, is GMC interested in the exclusive rights under the Copyright Act. FTI asserts that it is exercising a liberty to publish which it claims is a liberty enjoyed by all persons in Australia.

39    Those submissions are misconceived. The nature of copyright in cinematograph films is set out in s 86 of the Copyright Act, namely the exclusive right:

(a)    to make a copy of the film;

(b)    to cause the film, in so far as it consists of visual images, to be seen in public, or, in so far as it consists of sounds, to be heard in public;

(c)    to communicate the film to the public.

Those exclusive rights include the exclusive right to authorise a person to do those acts: s 13(2).

40    FTI has exercised each of those exclusive statutory rights, and intends to do so in the future. GMC seeks to prevent FTI from doing so by way of GMC’s claim to be the beneficiary of a constructive trust over the copyright. The copyright owner is entitled to exercise the rights inherent in its copyright in the 14-minute Footage irrespective of whether it is likely ever to sue other persons for infringement. The attempt to confine the nature of copyright in cinematograph films to the right to sue for infringement is contrary to the express language of s 86. It is also contrary to the way in which those statutory rights are routinely exercised by copyright owners in their day-to-day activities, which do not necessarily involve bringing infringement proceedings.

41    FTI also submits that a constructive trust should not be imposed for the benefit of GMC, in circumstances where GMC’s employees are also likely to suffer from publication of the 14-minute Footage, such as by way of embarrassment, distress and public odium. However, there are no findings (or indeed evidence) to the effect that FTI intended to cause any harm to those employees. Rather, any adverse consequences to GMC’s employees are merely an unintended by-product or side effect of conduct aimed at GMC itself. Nor has FTI committed any legally recognised wrong against those employees. Accordingly, it is entirely appropriate that the constructive trust should be in favour of GMC alone.

Conclusion

42    It follows that the Court should declare that FTI holds the copyright in the images (and copies thereof) which it obtained or captured between 9 January 2024 and 13 April 2024 at GMC’s premises (including the 14-minute Footage) on trust for GMC. Neither the fact that there was no pre-existing relationship between FTI and GMC, nor the fact that FTI created the property in question (rather than obtaining a transfer of it from GMC) provides a valid objection to that conclusion.

43    Certain further relief is also appropriate, flowing from the declaration of a constructive trust. First, it is appropriate to grant an injunction as sought by GMC permanently restraining FTI from publishing (other than to the Department) any of the images (and copies thereof) in question. That injunction is the natural consequence of GMC’s beneficial ownership of the copyright in the images, and its right to call for an assignment of the copyright. Indeed, the analysis in ABC v Lenah (at [102]) was prompted by the issue as to the legal basis for the availability of an injunction restraining publication of materials obtained by trespassers, which was considered by Young J in Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457 at 463–4. Second, FTI should be ordered to assign in writing to GMC the copyright in the video images which FTI obtained, and in default of such assignment, a Registrar of the Court be directed to execute such a transfer on FTI’s behalf pursuant to r 1.37 of the Federal Court Rules 2011 (Cth). Third, there should be orders for the permanent deletion of all such images, together with filing and serving an affidavit attesting to such deletion and disclosing the details concerning the provision of the images to others. Fourth, as an adjunct to those remedies, it is necessary to prevent prejudice to the proper administration of justice to make a suppression and non-publication order under s 37AF of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) in relation to the images obtained by FTI, as otherwise the effect of those remedies could be undermined by a party other than FTI obtaining access to the 14-minute Footage or other images by inspecting the Court file and then publishing that material without GMC’s consent or authority.

44    As those orders provide all the remedies sought by GMC in its notice of appeal, it is not necessary to consider Grounds 1 to 4 which relate to aspects of the law of trespass and the scope of injunctive relief for the tort of trespass.

FTI’s Cross-Appeal: the amount of exemplary damages

45    FTI challenges by way of cross-appeal the quantification of exemplary damages in the amount of $100,000. The notice of cross-appeal seeks an order varying that amount such that FTI must pay to GMC exemplary damages of $30,000. In the course of oral address, FTI submitted that if GMC were to succeed in its argument for an injunction restraining FTI from publishing the 14-minute Footage or for a constructive trust to be imposed over the copyright in the 14-minute Footage, then the deterrent purpose of exemplary damages would largely be achieved by way of those remedies, such that exemplary damages should be in the amount of no more than $10,000.

46    FTI accepts that appellate review of a reward of exemplary damages is constrained by the principles set out in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504–5 (Dixon, Evatt and McTiernan JJ) in relation to the review of discretionary decisions. That concession was well made: Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327 (Rogers) at [62] (Hayne J, with whom Gleeson CJ and Gummow J agreed at [35]); Nationwide News Pty Ltd v Rush [2020] FCAFC 115; (2020) 380 ALR 432 (Rush) at [472] (White, Gleeson and Wheelahan JJ). FTI advances its cross-appeal on the basis that the award of exemplary damages was manifestly excessive. What must be shown is manifest excess, and not just excess: Rogers at [64]; Rush at [472].

47    One matter advanced by FTI may be readily disposed of. FTI submits that an award of exemplary damages usually should not exceed the amount of compensatory damages, which in the present case were assessed as $30,000. Contrary to FTI’s submission, there is no such principle. There is no necessary proportionality between the assessment of exemplary and compensatory damages: Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1 (Lamb v Cotogno) at 9 (Mason CJ, Brennan, Deane, Dawson and Gaudron JJ), approving XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 (XL Petroleum) at 471 (Brennan J). As Brennan J explained in that passage in XL Petroleum, an award of exemplary damages is intended to punish the defendant and deter similar conduct, and thus the relevant considerations are different from those which govern the assessment of compensatory damages.

48    In the present case, the primary judge referred to FTI having accepted that its trespasses onto the Eurobin Premises were relevantly contumelious, and having accepted that FTI intends to effect similar trespasses upon other premises in the future: PJ [242]. The primary judge referred to Mr Delforce’s evidence to the effect that he and FTI intend to continue trespassing upon similar premises in the future despite knowing that pursuing that intention would subject him to the possibility of civil and criminal sanction: PJ [242]. The primary judge rejected FTI’s reliance on penalties available under the Summary Offences Act 1966 (Vic), noting that the individuals who committed the trespasses in the present matter are not the party against whom an award of exemplary damages is sought, and there is not the slightest possibility that FTI would face criminal sanction under that legislation: PJ [248]. The primary judge referred to FTI’s assets of $334,146 as at 30 June 2023 (although I note that its net assets were $309,781) and its profit of $49,241 in the year to 30 June 2023: PJ [254]. The primary judge also referred to FTI’s proven and undoubted ability to raise funds when it needs them, referring to the amount of about $140,000 which it had raised since late May 2024 to cover the legal expenses associated with this matter, the raising of about $150,000 in a short space of time in 2022 to cover expenses associated with other litigation, and another crowd-funding style campaign by which FTI managed to raise over $100,000: PJ [255]. The primary judge also referred to the unrepentant nature of FTI’s conduct and the lack of any expression of remorse: PJ [258].

49    The primary judge considered that exemplary damages in the amount of $200,000 or higher would be “crushing”, but that exemplary damages set at $10,000 would risk being mistaken for “a judicial indulgence”: PJ [261]. The primary judge indicated that an award of exemplary damages should hurt, and it should be made clear that those who prefer the pursuit of their own objectives over their obligation to obey the law should expect to bear a heavy burden: PJ [262]. The primary judge said that an award of exemplary damages should serve as the Court’s attempt to persuade FTI and others like it to abandon their preference for illegality, and yield, like responsible citizens, to the requirements of the law, and should be much more than what a respondent might happily regard as the price of doing business: PJ [262]. Accordingly, the primary judge considered that an award of exemplary damages set at $100,000 was appropriate to achieve that end: PJ [263]. The primary judge said that an award in that sum was a significant imposition, which in the normal course might represent several years’ lost profits or surpluses, noting that FTI might be able to minimise those effects through additional fund-raising: PJ [263]. It is notable that none of the reasoning of the primary judge suggested that exemplary damages should be set at a higher figure than would otherwise be appropriate because of the lack of an injunction or constructive trust.

50    In my view, there is no error in any of the primary judge’s reasoning in relation to the amount of exemplary damages, and nor is that amount excessive, let alone manifestly excessive. I do not regard the declaration of a constructive trust over the copyright in the 14-minute Footage, together with the injunctive and other relief flowing from that declaration of a constructive trust, as having any material bearing on the award of exemplary damages. The constructive trust and injunction pertain to the actual circumstances of the present matter. There is no basis in the evidence or otherwise to think that the grant of that relief will have a material bearing on FTI’s avowed intention to engage in similar conduct in the future. Moreover, FTI does not challenge the reasoning of the primary judge to the effect that the deterrent effect of exemplary damages should be directed not only to FTI but also to others like it: PJ [262]. That reasoning is expressly supported by the unanimous High Court in Lamb v Cotogno (at 10). Accordingly, the cross-appeal should be dismissed.

Interest and Costs

51    On 10 February 2025, the primary judge ordered that any orders as to interest and costs be deferred pending determination of the appeal or further order. It is not clear why the primary judge took that course, which I regard as generally undesirable.

52    As to interest, when the matter was raised at the hearing of this appeal, it emerged that there was no relevant dispute between the parties. Pre-judgment interest on compensatory damages is available under s 51A(1) of the FCA Act from the time when the cause of action arose. The trespasses were committed between 9 January and 13 April 2024, and the parties agreed that for the sake of simplicity, interest should be calculated from 1 March 2024, being roughly the mid-point of that period. It is common ground between the parties that pre-judgment interest is not available in relation to an award of exemplary damages: s 51A(3)(c) of the FCA Act.

53    As to costs, GMC has succeeded in its appeal and FTI has failed in its cross-appeal. In those circumstances, GMC is entitled to an order for the costs of the appeal and cross-appeal. As to the costs of the proceedings at first instance, FTI submits that the parties should have an opportunity to address those costs after judgment has been given on the appeal, suggesting that there may be sensitivities arising from offers of compromise. Accordingly, it is appropriate to set a timetable for the filing of written submissions and any affidavits concerning the question of costs, which I anticipate the Full Court will decide on the papers.

Associate:

Dated:    13 August 2025

REASONS FOR JUDGMENT

HORAN J:

54    I agree that Grounds 5 and 6 of the notice of appeal should be upheld, for the reasons given by Jackman J. The copyright in the images captured by the respondent (FTI) was created in circumstances involving an invasion of the legal or equitable rights of the appellant (GMC), including the latter’s right to exclusive possession of its premises, such that it would be inequitable and against good conscience for FTI to assert ownership of the copyright against GMC in the sense contemplated by Gummow and Hayne JJ (with whose judgment Gaudron J agreed) in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [102]. That approach was supported by Callinan J in his dissenting judgment in Lenah Game Meats at [309], and was implicitly approved in the judgment of Kiefel CJ, Bell and Keane JJ in Smethurst v Commissioner of the Australian Federal Police (2020) 272 CLR 177 at [84]. As is demonstrated in the reasons of Jackman J, it is consistent with equitable principle and previous authority. Accordingly, FTI holds the copyright in the images on a constructive trust for GMC.

55    There may also be some force in one or more of Grounds 1 to 4 of the notice of appeal, by which GMC seeks to challenge the primary judge’s conclusion that it was not entitled to injunctive relief to address the consequences of the trespass committed by FTI. Although the tort of trespass was complete, it is arguable that the possession and use by FTI of the images obtained or captured in the commission of the trespasses at GMC’s premises in order to harm GMC’s business is capable of amounting to ongoing damage that is amenable to injunctive relief in the auxiliary jurisdiction of equity in aid of the common law: see Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at [33] (Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ). In so far as that jurisdiction involves a consideration of whether FTI is bound in conscience to deliver up and not to publish the images, this might be informed by similar considerations to those underlying the imposition of a constructive trust of the copyright in the images.

56    Such an approach arguably finds support in the minority judgments in Smethurst: see at [122]–[123], [129]–[130] (Gageler J), [196]–[197] (Gordon J), [238], [252]–[257] (Edelman J). While the plurality in Smethurst took a different view, their refusal of an injunction on the facts of that case ultimately turned on the plaintiffs’ failure to establish any relevant injury arising from the prospect that the first plaintiff might be investigated for an offence and the use of the information obtained from her mobile phone for the purposes of such an investigation: Smethurst at [72]–[73], [85], [99]–[101] (Kiefel CJ, Bell and Keane JJ). The absence of any relevant prejudice was also an element in the reasoning of Nettle J, who had regard to “the nature, gravity and contumacy of the trespass” and the “extent of the damage that would be inflicted on the plaintiff” if an injunction were not granted: Smethurst at [158]–[160].

57    The outcome in Lenah Game Meats is not fatal to the arguments advanced by GMC on this appeal. In that case, the majority of the High Court upheld the decision at first instance refusing to grant an interlocutory injunction against the Australian Broadcasting Corporation to restrain the broadcast of video footage that had been unlawfully obtained by trespassers and had subsequently come into its possession. It was not alleged that there was any knowing participation by the broadcaster in the relevant wrongdoing — it was not implicated in or privy to the acts of trespass, nor was there any allegation of the tort of conspiracy: Lenah Game Meats at [67], [104] (Gummow and Hayne JJ). As noted by the primary judge (at PJ [201]), an interlocutory injunction granted against the company to whom the trespassers had supplied the video (Animal Liberation Ltd) was not sought to be discharged: see Lenah Game Meats at [70]. The question whether injunctive relief might be available against a trespasser, at least in circumstances where damages are not an adequate remedy, did not directly arise on the facts in Lenah Game Meats.

58    Nevertheless, in the light of the conclusion reached on Grounds 5 and 6, the issues raised by the other grounds are not dispositive of the appeal. In those circumstances, the principle of judicial economy militates against the determination of contested issues about the availability of injunctive relief in the auxiliary jurisdiction of equity to require the delivery up or destruction of the images in the possession of FTI: see Boensch v Pascoe (2019) 268 CLR 593 at [7]–[8] (Kiefel CJ, Gageler and Keane JJ), [101] (Bell, Nettle, Gordon and Edelman JJ). This is not an occasion in which departure from judicial economy will enhance the overall efficiency of the system, whether by reason of the prospect of an appeal being brought by special leave to the High Court or otherwise: cf. Boensch at [8]. Further, the imposition of a constructive trust of the copyright in the images is arguably sufficient to address any ongoing consequences of the trespass, thereby removing any need for a restorative injunction in equity’s auxiliary jurisdiction.

59    I agree with Jackman J that FTI’s cross-appeal against the award of exemplary damages should be dismissed, and with the orders proposed by his Honour on the appeal and cross-appeal.

Associate:

Dated:        13 August 2025