Federal Court of Australia
The Game Meats Company of Australia v Farm Transparency International Ltd [2024] FCA 1455
ORDERS
THE GAME MEATS COMPANY OF AUSTRALIA Applicant | ||
AND: | FARM TRANSPARENCY INTERNATIONAL LIMITED Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. There be judgment in part for the applicant.
2. The respondent pay to the applicant damages in the sum of $130,000.00, comprising general damages of $30,000.00 and exemplary damages of $100,000.00.
3. Order 1 of the orders herein dated 8 August 2024 be set aside.
4. Orders 2 and 3 of these orders be stayed until the expiry of the period prescribed by the Federal Court Rules 2011 (Cth) within which any appeal from this judgment is to be instituted.
5. The amended originating application otherwise be dismissed.
6. Within 28 days of these orders (reckoned consistently with r 1.61 of the Federal Court Rules 2011 (Cth)), the parties are to confer and, if possible, agree upon a form of orders appropriate as to interest and costs.
7. In the event that such an agreement is reached, the applicant is to submit the agreed form to the chambers of Justice Snaden and, if considered appropriate, the court will make orders as to interest and costs in chambers.
8. In the event that no such agreement is possible within that time, then:
(a) each party is to forward, promptly thereafter to the chambers of Justice Snaden, a minute of orders that it proposes as to interest and costs; and
(b) the matter will be scheduled for further hearing on a date to be fixed to determine what orders should be made as to interest and costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
SNADEN J:
Part 1: Overview
1 Most people eat meat. At the risk of stating the obvious, their doing so requires the slaughtering of animals and the processing of animal carcasses.
2 In Australia, as in many other parts of the world, that reality has spawned significant commercial meat-processing industries. The end products of those undertakings are retail offerings that bear no visual resemblance to the luckless beasts from which they are harvested. Much as with the electricity that flows when demanded from a household power socket or the petrol that empties from a bowser into a vehicle’s fuel tank, few have occasion to wonder about the constituent processes that must accumulate to make that possible.
3 Perhaps it is better that way. By its nature, commercial meat processing is a gruesome business, no matter how ethically or humanely it is performed. That inescapable truth leads some people to favour the view that the commercial slaughter of healthy animals for human consumption is morally unjustifiable and ought not to occur.
4 That is the assessment (or one of them) of the “Farm Transparency Project”, an animal protection advocacy operation run by the respondent (hereafter, “FTI”). Amongst other things, FTI’s objective is to educate members of the public about matters of animal exploitation and suffering at farms, slaughterhouses and other commercial businesses. As will shortly become apparent, its methods in that regard are not always orthodox.
5 The applicant (hereafter, “GMC”) operates an halal abattoir in Eurobin, Victoria, at which it slaughters and processes goats for export. It is licenced to do so by a Victorian government agency, PrimeSafe, pursuant to provisions of the Meat Industry Act 1993 (Vic). It operates from private premises (hereafter, the “Eurobin Premises”), which it leases from a related entity.
6 On seven occasions between January and April 2024, FTI 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 accessed the premises under cover of darkness, and without the knowledge or authority of GMC’s management. It is not in contest that they were trespassing.
7 The equipment that they installed was used to obtain footage of activity within the Eurobin Premises. Some of that footage depicts what FTI describes as instances of animal cruelty.
8 In May 2024, an FTI employee sent that footage (or some of it) by way of complaint to the Department of Agriculture, Fisheries and Forestry (the “Department”). A copy of that complaint was later forwarded to GMC, at which point GMC became aware of the trespasses described earlier.
9 A few days later—and apparently unhappy with what it perceived was the lack of urgency that had attended the Department’s handling of its complaint—FTI sent the footage (or some of it) to a local television news network (“Channel Seven”), which then ran a story about the matters depicted in it (although it did not republish the footage itself). Later, FTI posted the footage (or some of it) on the internet, together with a press release and some related commentary.
10 It was at about that point that this proceeding was commenced. The matter initially made its way before a duty judge, who granted orders ex parte requiring that FTI refrain from publishing what it had obtained. Those orders were complied with and footage was removed from public access via the internet. The following week, when the matter returned before me, FTI offered undertakings not to publish (other than to the Department) any of the footage that it had obtained from the Eurobin Premises until the application could be finally determined. It was agreed that the matter should proceed to trial on an expedited basis, which the court was able to accommodate.
11 By its amended originating application filed 31 May 2024, GMC moves the court for orders permanently to restrain FTI from publishing any of the video footage that it obtained at the Eurobin Premises, as well as to require that FTI assign to it its copyright therein, and pay damages (including exemplary damages) in tort and pursuant to statute.
12 For the reasons that follow, FTI should pay damages totalling $130,000.00. No injunctive or declaratory relief should issue.
Part 2: The proceeding
13 It is convenient, at this juncture, to say something by way of summary about the parties’ respective cases and the means by which they advanced them.
2.1 The pleadings
14 By its amended statement of claim dated 7 June 2024, GMC presses for relief on four bases.
15 First, it contends that the footage that FTI obtained was obtained in consequence of unlawful (which is to say tortious) trespasses that FTI committed upon its property. It seeks permanent injunctive relief to restrain FTI from publishing it (including mandatory relief to require that it be deleted, as well as general and exemplary damages (at the trial, senior counsel for GMC confirmed that special damages were not sought).
16 Second, it contends that, by providing to Channel Seven the footage that it had obtained and by posting it (and other, related content) to its website and social media, FTI engaged in conduct in contravention of s 18 of the Australian Consumer Law (hereafter, the “ACL”) (in that it was conduct engaged in in trade or commerce that was misleading or deceptive, or likely to mislead or deceive). Again, it seeks permanent injunctive relief to prevent any further publication of the footage that FTI obtained, as well as statutory damages.
17 Third, it contends that the provision and posting of that same material was effected maliciously and in a manner apt to constitute, in each case, the commission of the tort of injurious falsehood. As with the other bases, it seeks injunctive relief permanently to restrain FTI from further publishing any of the footage that it obtained, as well as damages in tort.
18 Finally, GMC presses for equitable relief relating to the copyright that subsists in the footage that FTI has obtained. Specifically, it moves for declaratory relief as to the existence, for its benefit, of a trust comprising of the copyright in that footage; and for mandatory relief requiring that FTI assign that copyright to GMC (and thereafter attend to the deletion of the footage).
19 By its amended defence of 16 July 2024, FTI admits that it committed the trespasses that are alleged against it. Conceptually, it accepts that it should pay general damages; and, depending on the quantum in which those damages are awarded, that there might be an occasion also to award exemplary damages in tort. It opposes the granting of permanent injunctive relief.
20 That opposition rests on three foundations. First, FTI maintains that injunctive relief is only available in trespass to prevent continuing or extreme forms of damage for which a respondent could not adequately account in damages. It submits that the evidence does not presently establish damage of that kind. Second, FTI contends that injunctive relief is not available to protect GMC from the consequences of its own conduct, which it describes as having been non-compliant “…with the applicable Australian Standards”. Third, it submits that injunctive relief of the kind for which GMC moves is unavailable because it would, if granted, impermissibly burden the right that is impliedly conferred upon it by the Constitution to communicate freely about matters of politics or government.
21 FTI otherwise denies that it is liable in tort or under the ACL in the ways that GMC alleges. Specifically, it maintains that none of its conduct to date has involved falsehood or deception; and that its publication of the footage that it obtained was—and, importantly, will be—understood merely as a means of publicising, accurately through video, events that transpired at the Eurobin Premises.
22 As will be seen, the “main game” in this proceeding is the footage that FTI obtained of the Eurobin Premises. FTI wants to be able to publish it; GMC wants the court to prevent it from doing so.
2.2 The trial
23 As has already been noted, the matter was first brought before the court on an urgent basis—indeed, before a proceeding had even been commenced. Ex parte injunctive relief was sought and granted; and FTI duly complied with it. Thereafter, FTI gave undertakings not to publish the footage that it had obtained from the Eurobin Premises (otherwise than to the Department). Initially, that undertaking was given until 5:00pm on Friday, 24 May 2024; later, it was extended until “the determination of this proceeding or further order”. Later still, it was extended to the day that is one business day after the expiry of the period within which any appeal from this judgment must be initiated.
24 Those undertakings (or the earlier of them) were offered on the basis that the matter would be brought to trial on an expedited basis. Upon appropriate enquiries, that was a course that the court was able to accommodate. Relatively standard case management orders were thereafter made and, at the least materially, were complied with.
25 On account of its reliance upon a constitutionally-implied right freely to communicate about matters of politics and government, FTI issued notices pursuant to s 78B of the Judiciary Act 1903 (Cth) to the attorneys-general of the Commonwealth, the states and the territories.
26 The matter was set down for trial commencing on Monday, 5 August 2024. With the parties’ agreement, the court heard evidence over five hearing days, before adjourning to allow them to compile some written closing submissions. Those were then prepared and were the subject of further oral submissions on Tuesday, 3 September 2024.
27 At the hearing of the trial, GMC led oral and affidavit evidence from Mr Eugene Christopher Tomasoni (one of its directors), Mr Darren Webb (its General Manager) and Mr Christopher Wyatt Neville (its solicitor). FTI filed affidavit evidence of Mr Christopher James Delforce (one if its directors), Ms Harley McDonald-Eckersall (one of its employees) and Mr Dennis John Gorlin (a former employee of the Red Stag Deer and Emu Farm, a property adjacent to the Eurobin Premises). Each gave oral evidence, together with a number of additional witnesses whom FTI called on subpoena, namely:
(1) Dr Karl Heinz Christopher Texler, an on-plant veterinarian who works at the Eurobin Premises as an employee of the Department;
(2) Mr Mohammed Hakik, one of the GMC employees who featured in the footage that FTI obtained of the Eurobin Premises;
(3) Mr Matthew Maguire, another GMC employee who features in that footage;
(4) Mr Rick Anthony Cavedon, GMC’s Sales and Production Manager;
(5) Mr Yazan Al-Masri, another of GMC’s employees at the Eurobin Premises;
(6) Dr Ian Waddell, another on-plant veterinarian who worked at the Eurobin Premises; and
(7) Dr Robert Thorold Irwin, another on-plant veterinarian who worked at the Eurobin Premises.
28 For reasons that might be apparent, some of the evidence given by Mr Delforce and Ms McDonald-Eckersall was the subject of objection on the grounds of self-incrimination privilege. It was nonetheless freely given on the basis that certificates would issue, as they later did, under s 128(5) of the Evidence Act 1995 (Cth).
29 As might be imagined, the hearing of the trial involved a significant volume of work that was performed over an unusually short span of time. Although there were occasional (minor) difficulties, the hearing proceeded more or less as a hearing of its kind ordinarily would and should; and I record the court’s gratitude to the parties and their representatives for their efforts in that regard.
2.3 Suppression
30 Throughout the course of the trial, it became apparent that some of the affidavit material that the parties read into evidence contained references that, were they to enter the public domain, might deprive GMC of the prospect of effective relief (in that it might bring to public attention that which GMC hopes to prevent FTI from publishing).
31 Again, the parties approached that reality with appropriate industry and goodwill. Redacted copies of the affidavits in question were prepared and filed, and orders were made under r 2.32 of the Federal Court Rules 2011 (Cth) preventing, in the interim, public access to the non-redacted versions.
Part 3: Factual background
32 Very little of the evidence that the court has received was the subject of contest. It is convenient to map out the facts that it discloses by reference to discrete topics. In what follows, I should be understood to have made factual findings that are consistent with what is described.
3.1 The parties
33 The abattoir that GMC operates at the Eurobin Premises (the “Abattoir”) commenced operations in 1996. It slaughters and processes game animals; predominantly, feral goats that are sourced and transported to it from New South Wales. Typically, in the order of 4,500 goats are slaughtered at the Abattoir each week. The meat that is processed from their carcasses is exported to overseas markets.
34 Eurobin is a small town of approximately 250 residents, located in north-eastern Victoria. The Abattoir is a significant employer in the region, with a staff of approximately 40. Its employees include a production manager, numerous slaughtermen, a maintenance fitter and a full-time truck driver. GMC occupies the premises upon which the Abattoir operates pursuant to a lease arrangement that it has with a related entity, The Emu Company Pty Ltd.
35 The Abattoir is a sizeable concern. In the financial year to 30 June 2022, it generated more than $37 million in revenue.
36 FTI is a company limited by guarantee and incorporated pursuant to the Corporations Act 2001 (Cth). Its primary object is:
…to pursue the charitable purpose of preventing or relieving the suffering of animals, including by:
(a) raising public awareness of animal cruelty and its causes through the promotion and facilitation of public transparency in animal-use industries, and increasing human understanding of the ethical importance of the prevention and alleviation of animal suffering;
(b) providing representation to improve the treatment of animals through the introduction, updating or improvement to relevant law, policy, practice or custom.
37 Mr Delforce is one of FTI’s three directors. He describes FTI’s “overarching wish” as being to “…end all forms of business that involve causing harm to animals”. Inherent in that goal is that abattoir businesses like GMC’s should cease to operate.
38 FTI employs six people. One of them is Ms McDonald-Eckersall, who, at times of present relevance, was engaged in the role of “Strategy and Campaigns Director”. She is the architect of what has come to be known as FTI’s “Shut Down Slaughterhouses” campaign. She describes the purpose of that campaign as being to make consumers “…aware of the realities of how animals are killed in Australia” and to “…expose the realities of how animals are treated in commercial industries to the public, so they can make their own minds up about if they choose to consume those animals.”
3.2 The Eurobin Premises
39 The Eurobin Premises are and, at the times material presently, were secured by means of a six-foot cyclone metal chain and barbed wire fence located around its perimeter. Access to it is gained via an entrance that is (and relevantly was) secured by an electronically-controlled iron gate, which is typically kept closed. The outside of the gate is adorned with a number of signs. One warns that the Abattoir is a “Q Fever risk site”. Another states, “Restricted Area. Do not Enter, Authorised Personnel Only”. Another reads, “Stop. All Visitors Must Report to the Office”.
40 Within the premises is a large building, in which the functions of the Abattoir are carried out. It is fitted with commercial animal processing plant and equipment that conforms to applicable regulations. One section within the building is known as the slaughter area. As its name suggests, it is there that animals are killed. That is achieved by leading them one-by-one from a staging area into a restraining apparatus, whereupon they are “stunned” by means of electric shock. That process is designed to render the animals unconscious, at which point they are hung from a shackle and “stuck”. “Sticking” involves the cutting of an animal’s throat (more specifically, its carotid artery and jugular vein), which results in its bleeding out and, ultimately, its death.
41 As it is export-registered, the Abattoir is required to have on site an “on-plant veterinarian” at any time that animals are slaughtered or processed. “On-plant veterinarians” are engaged by the Department, rather than by GMC. Their role is to inspect animals prior to (and with a view to ensuring their fitness for) slaughter and otherwise to ensure that certain animal welfare standards are met.
42 Those standards are the subject of Australian Standard AS 4696:2007 Hygienic Production and Transportation of Meat and Meat Products for Human Consumption (hereafter, the “Australian Standard”). In addition to the Australian Standard, the Australian Meat Industry Council has conceived the Industry Animal Welfare Standard for Livestock Processing Establishments Preparing Meat for Human Consumption (hereafter, the “AMIC Standard”). Compliance with the Australian Standard is, so the court was told, compulsory for those who operate in the Australian meat industry (such as GMC). Compliance with the AMIC Standard is not.
43 On-plant veterinarians at the Abattoir also participate in periodic animal welfare audits. Each day, before commencement of production, the on-plant veterinarian completes an ante-mortem inspection and assessment of the livestock at hand. Throughout production (approximately every 20 minutes), the on-plant veterinarian completes an inspection and assessment of the livestock “from the stunning and sticking all the way up to when … the carcasses are being put into cold storage”. Each week, the on-plant veterinarian conducts a meeting to address, amongst other things, issues concerning animal welfare. Those meetings are typically attended by GMC’s general manager, production manager, quality assurance manager and occupational health and safety officer. Biannually, auditors employed by the Department conduct an audit, which also delves into GMC’s compliance with applicable animal welfare standards.
3.3 The trespasses
44 Once made aware that FTI had provided to the Department footage of operations at the Abattoir, GMC set about determining how it had been obtained. Upon review of its own security camera footage, it ascertained that the Eurobin Premises had been the subject of seven separate incursions between 9 January and 13 April 2024. Specifically:
(1) at approximately 12:13am on 9 January 2024, three people made their way onto the site, remaining until approximately 2:30am;
(2) at approximately 12:06am on 27 January 2024, two people made their way onto the site and remained there until approximately 3:13am;
(3) at approximately 12:12am on 3 February 2024, three people made their way onto the site and remained there until approximately 3:03am;
(4) at approximately 10:55pm on 17 February 2024, two people made their way onto the site and remained there until approximately 12:01am on 18 February;
(5) at approximately 12:37am on 2 April 2024, three people made their way onto the site and remained there until approximately 2:22am;
(6) at approximately 12:55am on 7 April 2024, two people made their way onto the site and remained there until approximately 1:40am; and
(7) at approximately 12:11am on 13 April 2024, two people made their way onto the site and remained there until approximately 1:22am.
45 Mr Delforce and Ms McDonald-Eckersall were present—that is to say, were trespassers upon the Eurobin Premises—on each of those seven occasions. The identity (or identities) of the third person that attended with them on 9 January, 3 February and 2 April is (or are) unknown. Nothing turns on that.
46 Although the evidence does not disclose (and the matter similarly does not turn upon) precisely what was done or when, it is not controversial that Mr Delforce and Ms McDonald-Eckersall installed a number of video-capable cameras in concealed locations throughout the Abattoir. At least some of the cameras that Mr Delforce installed were installed in ceiling locations, which required the drilling or cutting of holes in those ceilings and the removal of sections of insulation. One such hole was located proximate to a 415-volt power cable.
47 On each of the seven occasions described above, Mr Delforce and Ms McDonald-Eckersall gained access to the Eurobin Premises by crawling under a section of the fence that spans its perimeter. It is not controversial that they did so without FTI’s knowledge and authority, nor that they were (and that, through them, FTI was) aware that they did not have GMC’s permission to enter.
48 Whilst at the Eurobin Premises, neither Mr Delforce nor Ms McDonald-Eckersall took any precautions to sterilise their footwear or otherwise to prevent against the potential spread of disease. Mr Delforce gave evidence that he took some such precautions “before arriving” but it is not clear what they were. Both he and Ms McDonald-Eckersall acknowledged, at least generally, that the Abattoir was vulnerable to biosecurity hazards; although neither took the view that their presence materially increased any biosecurity risk. Mr Delforce had been vaccinated against Q fever (which is a specific biosecurity hazard against which GMC sought to protect the Abattoir, including by imposing limitations upon its access). Ms McDonald-Eckersall had not. As history has it, their incursions onto the Eurobin Premises did not realise any actual biosecurity ramifications.
3.4 The footage
49 Over the three months that spanned the first and last of FTI’s seven incursions onto the Eurobin Premises, the cameras that its operatives installed captured some “14 shifts’ worth” of footage. Although not substantiated by the evidence, counsel for FTI suggested that there was somewhere in the order of “100 hours of raw data”.
50 From that footage, FTI created a separate video of some 13 minutes and 57 seconds in duration. That video (hereafter, the “14-minute Footage”) was received into evidence. It consists of scenes recorded at various times from the various locations within the Abattoir at which FTI’s cameras were installed. A copy of it was sent (or made available) to the Department in May 2024, when FTI’s complaint was made.
51 Whether it depicts instances of animal cruelty or not, there can be no doubt that the 14-minute Footage is difficult to watch. For reasons that might be imagined, I do not consider it necessary to describe in gruesome detail what the footage depicts. It suffices to observe that it shows a number of goats in the final moments of their lives. Some of them are shown exhibiting varying signs of resistance and, perhaps, distress. Some, for example—including some immature animals—appear not to be unconscious (or, perhaps, wholly unconscious) at the point that they are “stuck”. Others are shown being manhandled after escaping from a restraint apparatus (by slaughtermen who, I note with respect, appear to be working as well as they can in obviously challenging circumstances). There is some footage of infant or immature goats who are seen to cry out immediately prior to being stunned; and others that have to be stunned repeatedly after the electric tongs that are used for that purpose appear to malfunction.
52 It will be necessary later to return to the character of the 14-minute Footage.
3.5 The complaint to the Department
53 On Friday, 3 May 2024, FTI (via the agency of Ms McDonald-Eckersall) sent correspondence by email to Mr Adam Fennessy, of the Department and Senator Murray Watt, who was then the Minister with relevant departmental responsibility. Attached to that email was a document headed, “URGENT Formal Complaint: The Game Meats Company, Eurobin” (hereafter, the “DAFF Complaint”). Both the DAFF Complaint and Ms McDonald-Eckersall’s email of 3 May 2024 referred to an internet address, which, when accessed via a web browser, played the 14-minute Footage.
54 It was Ms McDonald-Eckersall who prepared the DAFF Complaint. It was addressed to Senator Watt. Amongst other things, it referred to FTI’s having “…captured disturbing footage taken at The Game Meats Company” and to FTI making its operatives “…available to the regulator in order to verify the veracity of the footage and enable a full regulatory investigation to take place”. There is no doubt that the footage so referred to was the 14-minute Footage.
55 After describing what the 14-minute Footage was said to depict, the DAFF Complaint continued (errors and emphasis original):
5. The severity of these breaches and their disturbing nature calls for nothing less than the immediate suspension of this slaughterhouse’s license to operate while an independent investigation takes place.
6. DAFF sets the licensing conditions for export abattoirs, like The Game Meat company, which require abattoirs to comply with relevant Australian standards and guidelines. The Australian Standard for the Hygienic Production and Transportation of Meat and Meat Products for Human Consumption (AS4696:2007) is one such standard.
7. The evidence described above demonstrates serious contraventions of the Section 7 (Animal Welfare) provisions of the AS4696:2007. The required outcome of Section 7 is “[t]he minimisation of the risk of injury, pain and suffering and the least practical disturbance to animals.”
…
56 Later, the DAFF Complaint contained a table that was described as “Itemised examples of welfare breaches” depicted in the 14-minute Footage.
57 On Sunday, 5 May 2024, Mr Jason Ollington, from the Department, sent a copy of the DAFF Complaint to Mr Rick Cavedon, GMC’s Production and Sales Manager. That appears to be the means by which GMC first came to be aware of the trespasses at its Eurobin Premises.
3.6 Media response
58 Less than two weeks after sending the DAFF Complaint, Ms McDonald-Eckersall sent a copy of the 14-minute Footage to Channel Seven. She was unable to recall precisely when she did so; but it is likely to have been early in the week commencing Monday, 13 May 2024. To that point, the Department had not determined how it might respond to the DAFF Complaint, nor confirmed to FTI (or anybody) that it was progressing any investigation into its substance. Although little, if anything, turns on it, it appears that Mr Delforce and Ms McDonald-Eckersall had, by then, become frustrated that the Abattoir had not faced the immediate or swift repercussions that they felt were appropriate in light of what the 14-minute Footage depicted.
59 On Tuesday, 14 May 2024, GMC got word that FTI might have sent its footage to Channel Seven. On Thursday, 16 May 2024, GMC wrote to the network, alerting it to the unlawful means by which FTI had obtained its footage from the Abattoir and seeking that the network refrain from publishing any story about it without notice to GMC.
60 On Friday, 17 May 2024, discussions ensued as between Channel Seven and a public relations consultancy that GMC had engaged. The latter provided the network with some comments that it could attribute to a spokesperson for GMC, namely:
The Game Meats Company takes the welfare of animals extremely seriously. We have no tolerance for animal cruelty of any kind.
The company, which has been operating for 26 years without incident, has immediately established an independent investigation, and has also obtained veterinary advice.
The investigation is in response to what seem to be a small number of incidents which are of concern and action has been taken by the company, including the removal of two contract workers from their roles.
The company has reported to Victoria Police a series of illegal trespassing incidents and the police are continuing with their investigations.
61 Later that day, the network ran a story during its local Albury news bulletin, which featured excerpts from an interview with Ms McDonald-Eckersall. A transcript of that story (and a video copy of the relevant part of the bulletin—hereafter, the “Channel Seven Story”) were received into evidence and it is convenient here to replicate it (the references to various times appear to be references to the time of the story within the bulletin but nothing turns on them):
04:08 - Nick Hose
Animal rights advocates could face criminal charges after they allegedly broke into a northeast slaughterhouse and filmed, what they call, unethical practices.
04:18 - Nick Hose
The Game Meat Company in Eurobin has reported the trespasses to police and have taken steps to block the publication of the footage.
04:26 - Nick Hose
Seven news has seen the videos showing goats having their throats cut, while they appear to be still alive.
04:31 - Nick Hose
The Farm Transparency Project says this is a breach of the federal government's regulations.
04:37 - Harley McDonald-Eckersall
The footage is extremely hard to watch um, especially the footage showing these newborn goats, who are being left in a room alone for hours, as they cry out in pain.
04:51 - Nick Hose
The department of Agriculture says it's reviewing the accusations levelled at the company and take a zero-tolerance approach to the abuse of animals.
04:58 - Nick Hose
The company also says it takes the welfare of animals extremely seriously and has sacked two contract workers in response to those claims.
05:05 - Nick Hose
It also launched an independent investigation into what they say appear to be a small number of incidents.
62 None of the footage that FTI obtained from the Eurobin Premises featured in the Channel Seven Story.
63 Shortly following the broadcast of the Channel Seven Story, FTI uploaded to its Facebook page a copy of that broadcast video, and to its website a copy of the 14-minute Footage and a number of still images obtained from it. Also uploaded was a press release in the following terms (errors and emphases original):
MEDIA RELEASE: 17 MAY 2024
Baby goats painfully electrocuted and left to suffer at northern Victoria slaughterhouse
• New hidden camera footage from Farm Transparency project shows the brutal slaughter of hundreds of goats at the Game Meats Company abattoir in Eurobin, north-eastern Victoria.
• Footage shows adult goats being wrestled and hit by workers as well as newborn goats left to suffer for hours after being unsuccessfully stunned using painful electric tongs. Many goats display signs of consciousness, including calling out and blinking even after their throats have been slit.
• This is the fourth Victorian slaughterhouse exposed by Farm Transparency Project since January. They’re calling for the immediate closure of the facilities investigated and an urgent state inquiry into the lack of legal protection for animals killed for food.
…
Animal advocacy organisation Farm Transparency Project has released new hidden camera footage, taken during a covert investigation by the group early this year.
The footage was captured at the Game Meats Company, an export approved, multi-species slaughterhouse in Eurobin, north-eastern Victoria. It shows the stunning and slaughter of hundreds of goats. Animals in the footage are seen jumping free of the restraint used to immobilise them before stunning and escaping into the kill room, where other goats are having their throats slit. Several goats show clear signs of consciousness, including blinking, lifting their heads and crying out, even while their throats are being slit and their heads and hooves removed.
Also captured is the slaughter of newborn goats, who are painfully electrocuted after being left in a plastic bucket for hours. One baby goat is captured crying out in pain for over two hours after an unsuccessful stunning attempt left them partially paralysed.
Strategy and Campaigns Director at Farm Transparency Project, Harley McDonald-Eckersall says that, while they have reported the facility to the state and federal authorities, they have little hope that anything will be done.
"This is the fourth Victorian slaughterhouse we've exposed this year and the 17th Australian slaughterhouse we've investigated since March 2023. Each one, we've reported to the relevant authorities, yet barely any action has been taken."
"What is happening at these slaughterhouses is not only immoral, it is illegal under state and federal legislation. The fact that Australian governments are not only ignoring the systemic issues at these facilities but, in the case of Tasmania, rewarding slaughterhouses exposed for extreme animal cruelty with further funding, is sickening and unacceptable."
"If governments don't act soon, citizens may well be forced to take drastic action."
Ms. McDonald-Eckersall refers to the recent decision of the Tasmanian minister for primary industries, Jane Howlett to grant $430,000 to Tasmanian Quality Meats slaughterhouse, despite a 2023 investigation by Farm Transparency Project showing that the facility was killing dozens of week old bobby calves without stunning. This investigation led to the federal department of Agriculture to temporarily ban TQM from slaughtering calves, until they upgraded their equipment.
Contact for interviews:
Harley McDonald-Eckersall, Strategy & Campaigns director: 0480 344 607 | harley@farmtransparency.org
Chris Delforce, Executive Director: 0401 763 340 | chris@farmtransparency.org
64 I should pause to address the references therein to goats showing “clear signs of consciousness”, “newborn goats [being] left to suffer for hours” and the use of “painful electric tongs”. The 14-minute Footage shows what appear to be infant goats being left for periods in a large bucket. Some are seen bleating from time to time, perhaps in physical discomfort (but perhaps for other reasons). The footage also shows attempts being made to stun them with a large set of “electric tongs”. It is plain that they are malfunctioning, as some goats remain conscious after what appears to be an otherwise orthodox stunning process (the malfunctioning appears evident as much from the goats’ continued consciousness as from the confused facial expressions of the operator—when they appear to work properly, the goats are rendered unconscious as good as immediately). As the tongs are applied to them (which is to say, are clamped around their heads or necks), the infant goats bleat in protest or distress—undoubtedly as a result of the obviously foreign nature of what is occurring. FTI’s reference to “painful electric tongs” perhaps involves some measure of supposition; but, in saying so, I should not wish to understate what is plainly not an enjoyable experience for the animals in question. Perhaps also in the realm of supposition, it is unclear to me what the reference in FTI’s press release to a “…baby goat crying out in pain for over two hours after an unsuccessful stunning attempt left them partially paralysed” pertains to. The same might be said of the suggestion that goats show “clear” signs of consciousness at relevant times (though, to be clear, there is reason to think that not all are wholly unconscious at the point that they are “stuck”).
65 At around the time that FTI published its press release, GMC was in the process of obtaining ex parte relief from the court to restrain it from publishing the footage that it had obtained from the Eurobin Premises. The court’s orders were emailed to Mr Delforce and Ms McDonald-Eckersall at around 6:30pm that evening (Friday, 17 May 2024). Upon receipt, FTI took steps to remove from public view the footage and images that it had earlier posted to its website.
66 Thereafter, FTI (presumably through one of Mr Delforce or Ms McDonald-Eckersall) published on social media a post explaining that GMC had commenced legal proceedings against it “…for publishing footage of animal cruelty”. The post went on to articulate what the 14-minute Footage depicts (in terms materially similar to those of the press release referred to above). It continued:
This case couldn’t be more important, but it might get expensive. Our legal team has estimated that we could be facing costs of tens of thousands of dollars.
If you can donate to help us fight back against censorship, please visit our crowdfunder. If you can’t donate right now, please consider sharing so we can reach more people.
…
let's ensure that this shameful action backfires on the slaughterhouse.
67 Separately, FTI also posted to social media a video featuring Mr Delforce and Ms McDonald-Eckersall, explaining in further detail that legal proceedings had been commenced against FTI and that, as a result, the footage obtained from the Eurobin Premises had been removed from its website. In that video, Mr Delforce and Ms McDonald-Eckersall said as follows:
[Mr Delforce]
Last week, we published footage from an investigation at the Game Meats Company, a Victorian slaughterhouse which kills thousands of goats each week, as well as other animals, including deer, emus and ostriches.
Half an hour after we published the footage on our website, we were contacted by lawyers acting on behalf of the slaughterhouse, who served us with a court order to either take the footage down or risk going to prison.
[Ms McDonald-Eckersall]
The footage we shared contains evidence of severe animal cruelty and illegal activity from workers at the slaughterhouse.
Goats are seen being slaughtered while fully conscious, or left to suffer for hours after ineffective stunning. The slaughterhouse itself admitted to Seven news that they fired two workers as a result of the footage, which we provided to the Federal Department of Agriculture as soon as we were able to, alongside a formal complaint.
[Mr Delforce]
At this stage, we have voluntarily taken down the footage in return for a full trial being scheduled as quickly as possible.
We believe the decision to take us to court is the action of those who have been caught treating animals in ways that most Australians would find shocking and unacceptable and who are determined to keep their practices hidden by whatever means necessary.
[Ms McDonald-Eckersall]
We will be proceeding to a full trial at the Federal Court of Australia in early August where we will defend our right to make this footage available to the public and challenge this attempt to censor our publication by the Game Meats Company.
[Mr Delforce]
Thanks to the generosity of our supporters, we have already raised almost $35,000 to help us cover legal costs for this important case. But now that we’re going to trial, we will be facing further costs.
[Ms McDonald-Eckersall]
We’re reaching out to all of our supporters to ask them if they can help us defend the right to publish footage of animal cruelty by donating to our crowdfunder. If you can’t donate or already have, please like share and comment on this post to boost our engagement and help us reach more people.
This case has the potential to have implications for those who investigate, document and report animal cruelty around Australia.
We will both be personally donating to the crowdfunder as well as promoting it through Farm Transparency Project to demonstrate how critical this trial could be for the future of animal protection in this country.
…
3.7 GMC’s response to the DAFF Complaint
68 GMC received a copy of the DAFF Complaint on Sunday, 5 May 2024. Mr Rick Cavedon then forwarded it to GMC’s directors, Mr Tomasoni, Ms Pauline Hohn and Mr Rob Cavedon, under cover of an email in the following terms (errors original):
Good Afternoon Directors,
Please find attached a formal legal complaint regarding the stunning, handling and slaughter of goats at the abattior.
I am concerned with various aspects of the footage.
We will need to conduct a formal investigation and response to Jason Ollington and the department as soon as possible.
Regards
…
69 The following day (Monday, 6 May 2024), GMC’s General Manager, Mr Webb, sent correspondence to Mr Ollington acknowledging receipt of the DAFF Complaint. Excluding formalities, that response was in the following terms (errors and emphases original):
The Game Meats Company of Australia is deeply concerned in relation to the video and report submitted by the Farm Transparency Project to Mr Watt, the video & report has highlighted a number of serious non-compliances that need to be addressed immediately.
TGMC is extremely disappointed and concerned with what was depicted in the footage, nevertheless we acknowledge the evidence. We will endeavour in the immediate future to address every issue raised by the Farm Transparency Project. In doing so we aim to reinforce our total commitment to Animal Welfare and ensure our personnel perform to a standard expected by us and our regulators.
We convened an urgent meeting with management and the board to address the issues raised and undergo a review of processes, equipment design, training programs & personnel with a focus on 3 key findings highlighted: -
1. Stunning & Sticking Stations - Review stunning equipment, process & training ensuring that zero tolerance is always adhered to. Modify & enforce restraint conveyor process and allocate an additional employee into the stunning area to control loading and spacing of goats. Ensure that proper, effective stunning techniques are used, ensure that stun/stick interval is sufficiently short to prevent the regaining of conciseness prior to death and ensure bleeding time is sufficiently long to ensure death prior to any other dressing procedures.
2. Infant Goat Euthanasia - Review practices surrounding the process of infant euthanasia including frequency, restraint and equipment.
3. Goat Load-in - Review practices surrounding the process of handling of downer animal & suspects including prompt euthanasia of downers.
In closing we are committed to adhering to all standards and ensuring that the correct processes are in place and effective, personnel are trained and monitored for compliance.
70 On Tuesday, 7 May 2024, there was an exchange of emails as between Ms Hohn, Mr Webb and Mr Tomasoni. It began with an email that Ms Hohn sent, which relevantly read (errors original):
…[Mr Tomasoni] sent me the Australian Meat industry Council animal welfare standards document. This document is common sense and outlines what we have always expected with regard to our staff and their treatment of the live animals they are handling. Clearly there has been an ongoing breach of these company required standards. [Mr Cavedon] as Production & Sales Manager (Plant Manager up till recently) has a very clear responsibility to ensure the cruel and completely unacceptable behaviour that I viewed in that very confronting video was never allowed to happen, but it did!
The company has now been put at risk as you know. I will never condone cruelty to any animal and as I told [Mr Tomasoni], if I had been at [a meeting earlier referred to] there would have been sacking of those staff involved. I believe the changes being put in place will bring us into a better place with the welfare of the goats bring given priority. It is of paramount importance that surveillance cameras are set up immediately to cover all animal handling areas not covered at the moment. The stunning and sticking areas are not covered and that must be rectified urgently. If staff know their behaviour is always monitored and any deviation from company standards will bring swift action then they will be mindful not to repeat the cruel behaviour shown on the video footage.
…
71 Later that morning, Mr Tomasoni responded in the following terms (errors original):
I agree with you.
Accountability will be addressed once the dust settles, [Mr Webb] along with key personnel have addressed solutions and the easy ones have been implemented . Have spoken to [Mr Webb] this morning and he wants to investigate if it’s possible to change the sticking area this will need Some planning And time.
…
72 That afternoon, Mr Webb again emailed GMC’s directors, setting out some steps that had been or were to be taken as a result of the DAFF Complaint. That email read (in part, errors and emphases original):
…
The management team is doing all it can to be proactive in protecting the business and its employees, not only are we working through the non-compliance issues we are also working through making the site more secure.
…
• Action List – attached is an action list that has a series of actions we are taking; these actions have been assigned to people and where possible have had due dates assigned as well.
• Increased Monitoring & Verification – [Dr Texler] has instigated additional monitoring including stunning & stun/stick time, todays run proves that we can be inside the 10 second target set out in out QA program (Australian Standards 25 seconds) David & Josh have also instigated additional spot monitoring as well.
• Extra Employee at Stunner – The additional employee at the stunner to move stock into the restraint conveyor spaced correctly has mitigated/eliminated goats escaping and or causing havoc allowing the stunner to perform effective and to standard stuns.
…
73 Attached to that email was a document headed “Formal Complaint by Farm Transparency Project – Action List”. It comprised a table listing measures that were to be (and some that already had been) taken, apparently as a result of the DAFF Complaint. Amongst them were (errors and emphases original):
Initial Action
…
• Production Staff Involved – Show footage and…point out the zero tolerance breaches.
• Emergency Toolbox Talk – Bring all production staff up to speed.
…
Stunning & Sticking Stations
• Remove those involved from stunning & sticking.
• Replace stunner & sticking with alternately trained personnel.
• Allocate second person at the stunner station.
…
• Review all stunning & sticking procedures, amend, update include more detail if required.
• Retrain all personal once procedure/s have been completed.
• Reinforcement to follow stunning / sticking training exactly as shown & signed off on.
• Cameras to be installed.
Infant Goat Euthanasia
• Safe handling & euthanasia of infant goats to be written into SOP’s & WI’s, infants must be cradled and handled gently & humanly. When euthanasia of infant goats is required, the sticker will be ready to stick immediately after stunning, infants to be euthanised & sticked one at a time, infant goats are to be euthanised as soon as practically possible.
• Blue drums for temporary infant goat containment to be filled with hay for comfortability.
• Design & manufacture Y-Chute for euthanasia of infant goats.
• Purchase a second stunner specifically for euthanasia of infant goats.
• Camera to be installed.
Goat Load-In
• Purchase of new captive bolt [illegible] x 2
• Create SOP & Training for use of captive bolt.
• Any goat found to be lame or injured is to be euthanised immediately with captive bolt, once euthanasia has occurred and only then can the goat be removed from the area found.
Production Line
• Line speed to be slowed down.
Management Actions
• Draft actions
• Draft Media Release & send to board for approval.
• Respond to DAFF
• Identify additional security measure to increase public safety.
• SOP’s & WI’s to be identified and updated to capture the above.
• Purchase & installation of additional cameras.
• Install locks on all factory doors
• Close off rear access with mesh at the back of factory
• Make access to rear space locable
• Perimiter fencing to be installed & upgraded
74 From the correspondence exchanged internally within GMC—and from the oral evidence given at the trial—it is apparent that several changes were made to the workings of the Abattoir following receipt of the DAFF Complaint. Those depicted in the 14-minute Footage were removed from their roles in the stunning and sticking of animals (some perhaps temporarily or for retraining purposes, it seems). An additional employee was stationed at the restraining station to help prevent goats from escaping the restraint and proceeding into the sticking area. Operating procedures and work instructions were earmarked for review and updating. Perhaps most significantly, closed-circuit surveillance cameras were installed at the stunning station.
3.8 The aftermath
75 It is difficult to say much with any clarity of what has transpired at the Abattoir following the DAFF Complaint (and the so-far-minimal publicity that it appears to have spawned).
76 GMC sought to lead evidence about reduced morale amongst the Abattoir’s staff. Respectfully, I do not consider that much can be made of that evidence (even assuming that it was properly received).
77 There was also some suggestion in the evidence that staff have not taken well to the introduction of permanent (GMC) surveillance cameras. At the hearing, Messrs Tomasoni and Webb maintained that the installation of those surveillance cameras had led to staff shortages, as some workers had refused to work under surveillance. That, in turn they said, had resulted in an overall reduction in the Abattoir’s output. Despite that, the three GMC workers who gave evidence, Messrs Hakik, Maguire and Al-Masri each confirmed that they were either indifferent or felt positively toward the introduction of those cameras.
78 GMC also led evidence about a downturn in production at the Abattoir since FTI’s trespasses came to light. The evidence establishes that there has been such a downturn; but, again, it is difficult to know what might sensibly be made of that for present purposes. There is no obvious basis upon which the court might confidently attribute it to FTI’s conduct.
Part 4: GMC’s causes of action
79 As has already been noted, GMC moves for relief in tort, in equity and pursuant to the ACL. Two claims in tort are pressed: one for trespass and one for injurious falsehood. The claim in equity proceeds on the basis that copyright in the footage that FTI obtained at the Eurobin Premises is held on trust for GMC’s benefit. The claim under the ACL is that FTI has made (and threatens to make or continue making) misleading or deceptive statements, or statements that are likely to mislead or deceive.
80 For the reasons that follow, only the claim in trespass can succeed. There is no occasion to consider what, if any, relief should issue in respect of the other causes of action. I consider it prudent to address the discrete causes of action separately from the question of relief (the latter necessarily being restricted, given the conclusions just stated, to what should sound as GMC’s success on its case in tort for trespass).
Part 5: Trespass
81 GMC’s primary cause of action lies in the tort of trespass. It is alleged—and admitted—that FTI trespassed upon GMC’s premises by means of the seven incursions that Mr Delforce and Ms McDonald-Eckersall (and, on some occasions, at least one other person—all acting on FTI’s behalf and with its authorisation) made onto the Eurobin Premises between 9 January and 13 April 2024.
82 It is not controversial that, during the course of those trespasses, FTI (by the agency of those people, or some of them) installed the camera equipment that was then used covertly to capture the 14-minute Footage. Although, by its defence, FTI denied that those installations were done for and on its behalf, the basis for that denial was not made apparent and it was not obviously persisted with. Indeed, by its submissions, FTI conceded that its agents gained access to the Eurobin Premises “…for the specific purpose of filming events at the applicant’s premises, in pursuit of the political objectives of FTI”.
83 Trespass protects against unauthorised intrusions upon property (whether land or chattels). It subsists in a positive act committed by a trespasser that directly invades, whether by design or negligently, an interest that an applicant has in his, her or its property. In TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333, 346 [58] (Spigelman CJ, with whom Mason P and Grove J relevantly agreed) held:
Persons conducting business on private property are entitled to do so without others intruding for purposes unrelated to the business activities they are conducting. This includes those who wish to enter with a view to publicly exposing aspects of their business.
84 Here, there is no doubt that FTI committed the tort by orchestrating not merely the entry of its agents onto the Eurobin Premises; but also by their placing (and, for a time, leaving) camera equipment at it. I have not understood that latter proposition to be in doubt; but, in any event, it is well-established by authority of long standing: Hudson v Nicholson (1839) 5 M & W 437; 151 ER 185 (Lord Abinger CB, Gurney B and Maule B); Konskier v B Goodman Ltd [1928] 1 KB 421 (Scrutton, Sargant and Greer LJJ); Lord v McMahon [2015] NSWSC 1619 (Slattery J).
85 It follows that GMC has established its cause of action in trespass and is entitled at least to some relief (to the precise nature of which I shall, as indicated, later return).
Part 6: Injurious falsehood
86 A person is liable to a remedy in tort for injurious falsehood at the suit of another if he or she publishes or makes a written or oral statement to a third person about the other person’s goods or business that is untrue; and does so maliciously and in a way that is calculated to (and does) visit actual damage: Ratcliffe v Evans [1892] 2 QB 524, 527-8 (Bowen LJ). In Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 (“Palmer Bruyn”), 404 [52], Gummow J listed the elements of the tort as follows:
(1) a false statement of or concerning the plaintiff’s goods or business; (2) publication of that statement by the defendant to a third person; (3) malice on the part of the defendant; and (4) proof by the plaintiff of actual damage (which may include a general loss of business) suffered as a result of the statement.
87 Presently, GMC contends that all four of those elements are present in the three publications that FTI relevantly made in May 2024—that is to say, in:
(1) its publication of the 14-minute Footage to Channel Seven in the week of 13 May 2024 (above, [58]);
(2) its republication of the Channel Seven Story and some related commentary on its Facebook page on 17 May 2024 (above, [63]); and
(3) its publication on its website on 17 May 2024 of the 14-minute Footage, some still images sourced from it and the press release (above, [63]).
88 For the reasons that follow, I am not persuaded that any of those communications (hereafter, the “Three Publications”) were such as to involve FTI in the commission of injurious falsehoods. To explain why, it is prudent to address three of the four constituent elements of the tort (specifically, the first, third and fourth of the four elements that Gummow J identified in Palmer Bruyn. There is no doubt that each of the Three Publications involved the second element (namely, publication to a third party).
6.1 Falsity
89 By its amended statement of claim, GMC contends that each of the Three Publications, understood according to the natural and ordinary meaning of the words by which it was constituted, was apt to represent, implicitly or otherwise, that GMC:
(1) condones cruelty to animals;
(2) is systematically cruel to the animals that it slaughters at the Abattoir;
(3) is reckless as to the welfare of those animals; and
(4) is uncaring as to their welfare.
90 FTI denies that any of the Three Publications conveyed any of the representations that GMC has sought to attribute to them. Additionally—and on the footing that that primary contention was wrong—it sought to defend their making on the basis that they were not, in any event, false. In other words, it sought to establish, factually, that GMC does condone or turn a blind eye toward cruelty to animals.
91 In that (latter) regard, reliance was placed upon some comments attributable to various GMC personnel. In an email that he authored on 5 June 2024, Mr Webb opined that the concerns that had been raised by the DAFF Complaint were products of “…an ingrained culture based around ‘[i]f we pass the external audit, then everything is ok’ and a number of people running their own race.” Mr Webb continued (error original):
Having never been challenged externally or never challenging their own system & processes over time cemented that culture.
92 Mr Webb accepted under cross-examination that there “may have been” a culture at the Abattoir that “[i]f we pass the external audit, everything is okay”; and, otherwise, did not resile from what he recorded in his 5 June 2024 email. Mr Tomasoni, likewise, accepted that what Mr Webb had said was “true in elements”. They both accepted that at least some of what the 14-minute Footage depicted involved conduct that was inconsistent with GMC’s expectations or standard operating procedures.
93 Other GMC employees who gave evidence at the trial agreed that there was a view (or an “attitude”) at the Abattoir that “if we pass the inspection, it will be okay”; and that it was thinking of that kind that was at least one cause of what the 14-minute Footage depicted. What was meant by “the inspection” was, perhaps not made as clear as it could have been but the gist of the evidence was clear enough: namely, it suggested that some within the Abattoir were not as concerned about animal welfare as they could or perhaps should have been.
94 For immediate purposes, very little can be made of any of that. It is one thing to identify or acknowledge attitudinal or cultural shortcomings amongst members of a workforce (if that is what the evidence summarised above can properly be understood to do); quite another to equate them with some positive state or states of mind that the law might properly attribute to an employer. Even taking the evidence at its highest—which is to accept, for the sake of argument, that some employees at the Abattoir considered animal welfare to be a lower priority than having the company pass an inspection or audit (whatever that might mean or involve in practice)—that could not, properly or by itself, bespeak the existence of some corporate policy or attitude of indifference (or worse) toward animal cruelty.
95 I consider it clear enough from the evidence that GMC cannot credibly be said to condone or be indifferent toward animal suffering. On the contrary, the evidence made clear that GMC management understood, wrongly or otherwise, that the Abattoir operated consistently with its commitment to processing animals as humanely as was reasonably possible (and, in any event, in accordance with applicable regulatory standards).
96 That understanding is consistent with—and is reflected by—the manner in which the Abattoir is managed. It is a condition of its licence that GMC must adhere to the Department’s “Export Meat Systems Audit Program”. Doing so requires that it submit to biannual inspection by departmental auditors, who consider matters that include animal welfare. Additionally (as has been noted already), Abattoir managers meet weekly with the Department’s on-plant veterinarian, where equivalent matters are also discussed. According to Mr Tomasoni, GMC had never before been alerted in those fora to any concerns about animal welfare or cruelty.
97 Further, the evidence made clear that the stunning and sticking of animals at the Abattoir was the subject of regular (although not constant) supervision or inspection by on-plant veterinarians. Again, so far as Mr Tomasoni was aware, there had never been any animal welfare or cruelty issue identified from those supervision or inspection opportunities.
98 Numerically, GMC was at pains to underline that the 14-minute Footage depicted somewhere in the vicinity of 60 animals of the nearly 53,000 that it slaughtered over the period that FTI’s cameras were installed at the Eurobin Premises. Even taking FTI’s claims at their highest, GMC maintains that it could not fairly be said on those numbers to operate indifferently to matters of animal welfare, nor with condoned or systematic animal cruelty.
99 The evidence paints a reasonably clear picture. GMC is a sizeable, professional and reputable undertaking, which, at the very least, strives to operate in accordance with what the law expects (I shall return to the content of those expectations shortly). Any suggestion that it condones or is indifferent to animal suffering is or would be false, as would be the more serious suggestion that it is systematically cruel to the animals that it slaughters.
100 FTI’s better point, it seems to me, concerns whether it can be understood to have represented as much by its having made any of the Three Publications.
101 Lest it not axiomatically be clear, GMC bears the onus of establishing that the Three Publications each conveyed the representations that it seeks to attribute to them: Palmer Bruyn, 406 [58] (Gummow J). Whether each of them did so is a question of fact. The answer to that question turns, in each case, not upon the proper legal construction of the words that were employed; but, rather, upon what the proverbially ordinary and reasonable person would understand them to mean.
102 Such a person:
…is variously said to be of fair to average intelligence, experience and education…[and]…is also taken to be fair-minded and neither perverse, morbid nor suspicious of mind, nor “avid for scandal”.
See: Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496, [75] (Wigney J).
103 Falsehood need not necessarily inhere in an impugned publication’s express words. It may, instead, be inferred from what was said: Gacic v John Fairfax Publications Pty Ltd [2005] NSWSC 1210, [65] (James J); De Kauwe v Cohen (No 4) [2022] WASC 35 (“De Kauwe”), [1187] (Le Miere J).
104 Here, none of the Three Publications can be understood to have conveyed, by implication, any of the imputations that GMC seeks to attribute to them. True it is that they conveyed—expressly to a point but at the very least implicitly—an assertion that instances of animal cruelty had transpired at the Abattoir. Of that there can be little doubt; indeed, that assertion serves as a foundational element of FTI’s defence to what is alleged against it.
105 Whether that assertion is made good by the 14-minute Footage is difficult—indeed, I think impossible—to say. As much is so if for no reason other than that it is difficult to know with precision what does and does not constitute animal cruelty. Used as it was in the DAFF Complaint and several other of FTI’s communications—and, indeed, in the submissions advanced before this court—“animal cruelty” is not a term of art.
106 Initially by its pleading, FTI sought to characterise the events depicted in the 14-minute Footage (or some of them) as involving “…serious acts of animal cruelty”. At the risk of employing an inadvisable metaphor, no meat was attached to those proverbial bones. By its opening written submissions filed prior to the trial, FTI contended that the 14-minute Footage depicted “illegality by [GMC]”, “illegal conduct”, “animal cruelty” and “barbarity”; but, again, no elaboration was offered.
107 By his oral opening of the defence, counsel for FTI undertook to establish, after receipt of the evidence was completed, that the events depicted in the 14-minute Footage (or at least some of them) amounted to “breach[es] of the criminal law under the Prevention of Cruelty to…Animals Act”. Nonetheless, it was made clear that the court would not be invited to make findings to that effect and, true to his word, counsel ultimately declined to extend an invitation of that kind. Whether, as things have panned out, that suggestion ought ever to have been aired is, at least for now, a fray into which I needn’t enter.
108 Having seemingly retreated from its initial suggestions, FTI relies instead upon what are said to be concessions by GMC that some of the events that are depicted in the 14-minute Footage involved non-compliance with applicable regulatory standards. In particular, reference was made throughout the trial to the Australian Standard. Some of GMC’s witnesses—Mr Tomasoni in particular, and Mr Webb—accepted under cross-examination that the 14-minute Footage depicted events that breached “Australian Standards”. Other witnesses—perhaps most notably Dr Texler (whose evidence was given under subpoena issued at FTI’s request)—did not.
109 Neither the content of those standards nor their status or place in the statutory or regulatory architecture within or subject to which the Abattoir operates were made clear; neither in a legal sense (insofar as concerned matters of which the court might properly take judicial notice) nor an evidential sense (insofar as concerned other matters). How the court is to assess what the 14-minute Footage depicts against standards imposed upon GMC by force of law is unclear. It is plain that some of the scenes depicted in that footage were such as to cause some within GMC to consider that something had gone awry in some way or ways; but the evidence was conspicuously lacking in precision.
110 I should not wish that observation to be mistaken for criticism, particularly given the speed with which the matter progressed to trial. Moreover, it is plain that the footage depicts what some within GMC consider is apt to be described as contrary to the Australian Standard. Some might even accept—indeed, I would consider it far more likely than not that some do accept—that it depicted acts of animal cruelty, including acts that were contrary to one or more of GMC’s internal expectations, the Australian Standard and the requirements of the law (possibly including the criminal law) more broadly. What I am to make of those expressions of opinion, however, is regrettably unclear.
111 Perhaps, for present (tort) purposes, it doesn’t much matter. GMC does not contend that any of the Three Publications was such as falsely to represent that there had transpired at the Abattoir instances of animal cruelty (howsoever that might properly be understood). What is alleged is that each falsely represented that GMC condones or is indifferent to such practices, or otherwise is systematically cruel to the animals that it slaughters. There is an obvious and important difference: instances of animal cruelty might transpire at the Abattoir without GMC condoning or turning a blind eye to them; and otherwise than systematically.
112 The court’s focus must remain on what is alleged: namely, that each of the Three Publications falsely represented that GMC condones or is indifferent to animal suffering, or is systematically cruel to the animals that it slaughters. I do not accept that the proverbially reasonable observer would understand any of the Three Publications as conveying, even implicitly, any of those things. At their highest, they convey no more than that certain things occurred at the Abattoir and that those occurrences (or some of them) are apt to be described as having involved acts of animal cruelty. None of the Three Publications can properly be understood to convey that GMC condones or is indifferent (recklessly or otherwise) to animal cruelty; nor that it is systematically cruel.
113 It follows that none of the Three Publications is or was false in any of the ways for which GMC contends. Insofar as concerns its case in tort for injurious falsehood, GMC’s contentions fail at that initial hurdle.
6.2 Malice
114 Even if I am wrong in concluding as I have about the falsity that GMC seeks to attach to each of the Three Publications, I would nonetheless not accept that any of them was actuated by malice on the part of FTI.
115 It has been said of “malice” that “…that ‘weasel word’ has been a source of uncertainty and confusion”: Carolyn Sappideen et al, Fleming’s The Law of Torts (Thomson Reuters, 11th ed, 2024) 922, [28.260]. Perhaps it is true now, as it was a century ago, that the term has been the subject of “regrettable exuberance of definition”: British Railway Traffic & Electric Co Ltd v CRC Co Ltd [1922] 2 KB 260, 268 (McCardie J).
116 In De Kauwe, Le Miere J observed (at [1213], referring to what McCallum J had said in Australand Holdings Ltd v Transparency & Accountability Council Inc [2008] NSWSC 669 (“Australand”), [156]):
…impropriety of purpose is the essence of malice. However, care must be taken when drawing comparisons with the principles applicable in the law of defamation. Where malice is alleged to defeat a defence of qualified privilege in a defamation case, the propriety of the defendant's purpose in publishing the matter complained of is measured by reference to its relevance to the privileged occasion. The existence of a sole or dominant purpose irrelevant to the occasion amounts to malice. The parameters of impropriety of purpose in the context of the tort of injurious falsehood are more elusive.
117 In Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2011] NSWSC 642, McCallum J had occasion to reconsider her earlier observations, noting (at [23]):
In [Australand] (at [156]), I said (perhaps unhelpfully) that the measure of impropriety of purpose in the context of the tort of injurious falsehood is more elusive. On further reflection, there may be some doubt as to what role propriety of purpose plays in the context of injurious falsehood, and perhaps it raises a false issue. The task in that context is to determine whether the relevant false statement was made with malice, that is, with an evil or harmful state of mind towards the plaintiff.
118 Necessarily, malice inheres in the character of a person’s reasons for engaging in conduct. To establish that conduct was engaged in maliciously, there must be something about the state or states of mind that actuated it. In Australand, her Honour referred in that regard (at [159]) with apparent approval to the following passage from JD Heydon, Economic Torts (Sweet & Maxwell, 2nd ed, 1978) at 83:
Malice means one of three things: either personal spite, or an intention to injure the plaintiff without just cause, or knowledge of the falsity of what is said. There has been a great deal of discussion as to which formulation is correct; this has largely been arid, because the precise formulation has hardly ever mattered. The best view now seems to be that any one of the three states of mind will suffice for liability.
119 There is no suggestion presently that FTI (or the human agents through whom it acted) made any of the Three Publications for reasons of personal spite as against GMC (or any of its personnel). Similarly, the evidence as to the state of FTI’s knowledge—established, as I accept that it relevantly would be, through what Mr Delforce and Ms McDonald-Eckersall knew—falls short of establishing knowledge that each of the Three Publications conveyed representations about GMC that were false (assuming, momentarily, that my conclusions to the contrary are wrong).
120 Might it be said, then, that each of the Three Publications was made with an intention to injure GMC without just cause? There are two components to that question: first, was there an intention to injure; and, second, was it actuated without just cause?
121 As to the first, Mr Delforce and Ms McDonald-Eckersall maintained under cross-examination that they did not do what they did for the purposes of harming or shaming GMC. For present purposes, that should be understood to apply as much to the making of each of the Three Publications as to their other activities. It was said, instead, that their purpose was to publicise what they considered to be instances of animal cruelty.
122 GMC is critical of that evidence. By its written closing submissions, it contended as follows (references omitted):
It is disingenuous for both Delforce and McDonald-Eckersall to suggest that they were not trying to harm GMC. Both are experienced animal justice campaigners and are not so naïve as to be innocent or ignorant of the likely adverse commercial and reputational consequences of their conduct which are imposed upon the subjects of their activist campaigns. Their understanding of their conduct and its impact upon GMC is no different.
An illustration of this proposition is seen with McDonald-Eckersall’s evidence: on the one hand, McDonald-Eckersall boasts on the FTI website of her past activism with Animal Rebellion in the United Kingdom and how it disrupted McDonalds national supply chain, costing the company millions (which she acknowledges as ‘an achievement’) and even accepts that it “wasn’t on [her] mind” as to whether she cared that the provision of the video to [Channel Seven] would damage GMC – and yet would not accept that damage to GMC would be a likely consequence of providing the film to [Channel Seven], nor that it was her intention to cause ‘maximum harm’ to GMC, or indeed that she was recklessly indifferent as to whether she caused harm to GMC. McDonald-Eckersall stated that her concern was for the animals – such a statement can be accepted. However the propositions of ‘caring for the animals’ and ‘harming or exposing/shaming GMC’ (either deliberately or recklessly) are not mutually exclusive.
The Court is entitled to reject both McDonald-Eckersall’s and Delforce’s self-serving suggestions that they did not intend to harm GMC (or never really considered whether or not GMC would be harmed) as a result of the publication of the video and related online posts and the media release. Both are experienced and media savvy animal rights activists. The Court is entitled to find (and at the very least infer) that each of Delforce and McDonald-Eckersall knew what they were doing and fully understood the consequences of their actions, which leads to the irresistible conclusion that in providing the video to [Channel Seven] on 14 May 2024 and the subsequent related publications posted on the FTI website (including the media release) and social media on 17 May 2024, FTI was acting in reckless disregard for the consequences of its actions on GMC and more likely was trying to shame and harm GMC as part of its overall ‘end slaughterhouses’ public campaign.
123 I accept those contentions. It cannot seriously be doubted that, by making each of the Three Publications, FTI sought to subject GMC to a measure of publicity that could only ever have been harmful to it. Likewise, it is beyond what could sensibly be doubted to observe that the publications were made in pursuance of FTI’s objective to “…end all forms of business that involve causing harm to animals”.
124 More should be said about that. FTI’s animating purpose is to oppose the commercial slaughtering of healthy animals for human consumption. That mission is not a secret and Mr Delforce, in particular, was admirably clear about it. Under re-examination, he gave the following evidence:
I’ve stated that my and Farm Transparency’s ultimate goal is to shut down slaughterhouses, because there is cruelty inherent, as I said, in the act of [unnecessarily] slaughtering an animal who doesn’t want to die, but I accept that this is not something that is going to happen overnight. It’s not something that’s going to happen in the next few weeks/the next few years. It is a gradual process, and it can only happen because of the public being made aware and choosing to no longer support these industries.
125 He continued:
…it’s not that we want…this particular abattoir shut down immediately. It’s that the ultimate goal is for animal cruelty commercially to be stopped, which will mean slaughterhouses will be shut down, but it’s more about raising public awareness with the view that, ultimately, that is what is going to shut down slaughterhouses including this one.
126 Later, Mr Delforce elaborated upon the concept of “unnecessary slaughter” to which he had earlier referred:
My view is that if – these are – this is not euthanasia. These animals are being killed merely to make a profit. Other – there are other means available of making a profit. There are other means of – there are other diets available. We don’t need to kill animals in order to eat and to survive and to be happy and healthy. We can eat – you know, there are alternative meats available. There are alternative meats of protein – sorry, alternative sources of protein. There’s now a lab-grown meat industry that is starting up where pork is being produced from the cells of animals without having to even kill animals at all. So if you can do that, if you don’t need to kill animals in order to make a living, in order to eat and survive and be healthy, then in my view, it’s unnecessary to be killing animals, especially when there’s a level of cruelty involved, which I maintain that there is.
127 FTI’s objectives (established at least through Mr Delforce) are not ambiguous. It is opposed to people eating meat that is sourced from commercial slaughterhouses (and possibly at all) and its aim is to convince people not to. Success in that sense will necessarily bring about an end to the commercial killing of animals and the closure of businesses such as GMC’s. One of the keys to achieving that goal, so FTI and Mr Delforce reason, is to educate people about the processes that are involved in commercial animal slaughter (in other words, to expose those processes to measures of public “transparency”). Thus are the above extracts from Mr Delforce’s evidence instructive: FTI’s enlivening calculus is that there is “a level of cruelty” that is necessarily inherent in the commercial slaughter of healthy animals for human consumption; and that by bringing that within the realm of public consciousness (specifically, by showing people parts of the processes that are employed to produce the meat that they consume), its goal of “…end[ing] all forms of business that involve causing harm to animals” will more readily be achieved.
128 It is, then, quite unrealistic to suppose that the making of the Three Publications was not actuated by a desire to harm GMC’s business. FTI should be presumed to have intended what was the obvious, known, unavoidable and desired consequence of the conduct upon which it embarked: namely, commercial decay.
129 But that does not suffice to establish malice.
130 FTI’s raison d’être is inherently political. Looking beyond at least some of the means that it employs to achieve them, the desires that animate it are lawful. I am unable to see why the promotion of a lawful political cause by means of a falsity (leaving aside a falsity that is known to be as much) should be thought to be attended by malice. I was not directed to any authority supportive of that proposition and my own researches have failed to identify any.
131 The making of each of the Three Publications was effected to further the political ends to which FTI is committed. Whatever might be said of those ends, they cannot be impugned as unjust or improper in any sense recognised by law. It is a feature of societies the world over—and liberal democratic societies in particular—that people with shared ideological, religious, commercial or other values will group together with a view to spreading them or having them lawfully imposed upon others. That reality does not bespeak relevant injustice or impropriety.
132 I do not accept that FTI’s making of any of the Three Publications was attended by impropriety of purpose sufficient to establish the presence of malice. It follows that GMC’s case in tort for injurious falsehood should fail on the alternative footing that any falsity that was implicit in any of the Three Publications was not maliciously communicated.
6.3 Damage
133 In order that it might succeed on its claim in tort for injurious falsehood, GMC would need, in any event, to establish that it suffered special damage as a result of each or any of the Three Publications.
134 To that end, GMC led evidence about a downturn in production at the Abattoir that coincided, temporally, with the Three Publications. It can be accepted (as has already been touched upon) that there was an observable reduction in the average number of animals processed at the Abattoir per week after the DAFF Complaint was brought to GMC’s attention. To an extent, that downturn appears to pre-date the Three Publications. In the week immediately following the Three Publications, production at the Abattoir was more or less at (and possibly a little above) what appears to have been the average level over the course of the calendar year to that point. Nonetheless, there does appear to be at least some downturn toward the end of May and continuing into June 2024.
135 Whether that might properly be attributed to the making of the Three Publications is very difficult to know. Mr Tomasoni’s evidence was that, in May and June 2024, GMC only employed two halal-certified slaughtermen to work as “stickers”. One of them was injured and the other was, as Mr Tomasoni put it, “implicated in that footage” and, as a result, had been “removed from that position, ASAP”. For at least some time thereafter, it appears that GMC had “…trouble finding anyone working in that position”.
136 Mr Tomasoni also gave evidence (as best that he sensibly could) about a fall in staff morale at the Abattoir after the Three Publications occurred. Leaving aside obvious concerns about admissibility (about which I needn’t elaborate), the suggestion was that staff at the Abattoir thereafter “…felt like they were being victimised”.
137 Whether that can properly be attributed to any of the Three Publications can be doubted. Mr Tomasoni’s evidence was that the closed-circuit television cameras that GMC had installed as part of its response to the DAFF Complaint were unpopular amongst staff. So much was that so, he said, that some workers had refused to work in the Abattoir’s stunning area.
138 In any event, it is not apparent how the downturn in production has impacted upon GMC’s profitability or revenue. One assumes that it hasn’t been positive; but, again, the paucity of evidence makes it difficult to know with any precision what has transpired. Mr Tomasoni’s evidence was that GMC enjoyed loyal supplier and customer bases. It is to be recalled that meat processed at the Eurobin Premises is exported to overseas markets and it is unclear to what extent clients or consumers in those markets might have been exposed to any of the Three Publications.
139 Perhaps because of the speed with which the court was called upon (and with which FTI ultimately undertook) to have the 14-minute Footage removed from public view, it seems that the consequences attaching for GMC to each of the Three Publications have been limited. On such evidence as there is, I do not think that it is possible to identify any calculable special damage that has been visited upon GMC by reason of those publications.
6.4 What about injunctive relief?
140 In addition to damages, GMC seeks auxiliary relief in the form of a permanent injunction to restrain FTI from making any further injuriously false publication of the 14-minute Footage. The case concept is clear enough: it contends that, unless so restrained, FTI will make additional publications of the 14-minute Footage, which will be actionable in tort as malicious, loss-inducing falsehoods.
141 There is no doubt that the court could—and, in the right circumstances, might—intervene to prevent, by injunction, threatened tortious activity, including in the form of injurious falsehoods: Palmer Bruyn, 406 [58] (Gummow J). In order that it might grant discretionary relief of that nature, the court would need to be persuaded that it would be necessary to avoid a species of special damage without which the tort could not be perfected.
142 Had I reached different conclusions as to falsity and malice in this matter, it may be that I might have been disposed to grant injunctive relief as requested. As has already been noted, I consider it tolerably clear that FTI’s purpose in seeking to publish the 14-minute Footage is (and would be) to visit loss upon GMC. That is its reason for being. By its nature, the footage is likely to achieve (or to assist in the achievement of) that goal, regardless of whether or not it depicts what are properly described as acts of animal cruelty. As Gleeson CJ noted in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 (“Lenah”), 221 [25]:
…like many other lawful animal slaughtering activities, the respondent’s activities, if displayed to the public, would cause distress to some viewers. It is claimed that loss of business would result. That claim is not inherently improbable…
143 By way of obvious and wry understatement, his Honour continued:
A film of a vertically integrated process of production of pork sausages, or chicken pies, would be unlikely to be used for sales promotion.
144 I consider that FTI is correct to calculate that the footage that it has obtained at the Eurobin Premises is footage that will assist it in turning people away from the consumption of meat processed by commercial operations such as GMC’s. Had I considered that its publication would have promoted a falsity and been actuated by malice, it might well have been that injunctive relief would have been appropriate. That would likely have been so even in the face of FTI’s contentions about the Constitution’s implied guarantee of free political communication (as to which, see subsection 9.2, below [219]).
6.5 Conclusions
145 I do not consider that any of the Three Publications is actionable as an injurious falsehood, nor that FTI’s undoubted intention to repeat them should attract the relief that is sought. GMC’s claim to relief in tort for injurious falsehood must fail.
Part 7: The Australian Consumer Law
146 Section 18 of the ACL provides:
18 Misleading or deceptive conduct
(1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
…
147 Presently, FTI accepts that it made each of the Three Publications “in trade or commerce”. At issue is whether any of them amounted to conduct on FTI’s part that was misleading or deceptive, or likely to mislead or deceive.
148 Insofar as concerns s 18 of the ACL, there is no point of principle by which the parties are relevantly separated. Whether conduct—in this case, the making or publication of a representation—is misleading or deceptive turns upon the consideration of all relevant surrounding circumstances: Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177, 202 (Deane and Fitzgerald JJ). Insofar as concerns, as here, representations that are made at large to members or sections of the public, the question turns upon the effect that they are likely to have had on a proverbially “ordinary” or “reasonable” person: Campomar Sociedad Limitada v Nike International Ltd (2000) 202 CLR 45, 85 [102] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ).
149 As with its case in tort for injurious falsehood, GMC maintains that each of the Three Publications was misleading or deceptive, or likely to mislead or deceive—and was, as such, made in contravention of s 18 of the ACL—because each conveyed notions that were (and are) false. As with its injurious falsehood case, GMC contends that that falsity inhered in imputations that it condones or turns a blind eye to animal cruelty, or is otherwise systematically cruel to the animals that it slaughters at the Abattoir.
150 I have already concluded that none of the Three Publications was apt to convey any of those imputations: above, [112]. Those conclusions are dispositive as to this aspect of GMC’s case as well. I do not accept that the ordinary or reasonable person would, upon considering those publications, be led to consider anything other than that the conduct that FTI captured in its footage was conduct that occurred at the Abattoir; and that it is or might be apt to be described as having involved acts of animal cruelty. GMC does not contend that imputations of that nature were misleading or deceptive, or likely to mislead or deceive.
151 It follows that there is no occasion to consider the granting of relief under ss 232 or 235 of the ACL (which are directed to the availability of relief in respect of conduct engaged in in contravention of, amongst others, s 18). Had I been drawn to conclude differently, I would have approached the questions of damage and injunctive relief in the same ways as are identified above in relation to GMC’s case in tort for injurious falsehood (above, sections 6.3 and 6.4).
Part 8: Beneficial ownership of copyright
152 In Lenah, the High Court upheld a broadcaster’s appeal from an interlocutory judgment, by which injunctive relief was granted against it at the suit of an abattoir. There, as here, trespassers upon commercial meat processing premises obtained footage, the broadcasting of which the business then sought to restrain. It succeeded in obtaining interlocutory injunctive relief against an animal activist organisation and the broadcaster, into the possession of which the footage had fallen. The latter was set aside after the broadcaster successfully appealed to the High Court.
153 In their joint judgment, Gummow and Hayne JJ had occasion to consider what Young J had said 15 years earlier in Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457 (“Lincoln Hunt”), 463; namely, that injunctive relief might lie to prevent the publication of a video or photograph taken by a trespasser upon private premises “…if the circumstances are such to make publication unconscionable”. In a passage in obiter with which each of Guadron and Callinan JJ separately agreed (respectively at 231 [58] and 320 [309]), their Honours observed (at 246-7 [101]-[103]) (emphases original, references omitted):
101 It may be that the outcome in Lincoln Hunt and subsequent decisions is to be supported upon a basis which, whilst not articulated in those cases, is directly referable to principle. Reference is necessary to various provisions of Pt IV (ss 84-113) of the Copyright Act 1968 (Cth). Copyright subsists in a cinematograph film made in Australia (s 90). The term “cinematograph film” includes the aggregate of the sounds embodied in a sound track associated with the visual images (s 10(1)). The copyright is personal property (s 196(1)). Ownership of that copyright vests, in general, in the maker (s 98). The Copyright Act confers the exclusive right, among other things, to make copies of the film and to broadcast it (s 86).
102 A cinematograph film may have been made, as in Lincoln Hunt, in circumstances involving the invasion of the legal or equitable rights of the plaintiff or a breach of the obligations of the maker to the plaintiff. It may then be inequitable and against good conscience for the maker to assert ownership of the copyright against the plaintiff and to broadcast the film. The maker may be regarded as a constructive trustee of an item of personal (albeit intangible) property, namely the copyright conferred by s 98 of the Copyright Act. In such circumstances, 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. Section 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.
103 In the meantime, the making of any broadcast would be subject to interlocutory restraint, as an invasion of the equitable interest in the copyright of the plaintiff.
154 Presently, GMC contends that the 14-minute Footage (and, perhaps, the unedited imagery from which it was compiled) was obtained in such a way that it would be iniquitous for FTI to assert or retain ownership of the copyright therein.
8.1 Statutory provisions
155 The Copyright Act 1968 (Cth) establishes a suite of rights pertaining to the creation of various literary, dramatic, artistic and other works. The nature of the rights in question depends upon the nature of the work in respect of which they subsist. Part IV of the Copyright Act concerns copyright in sound recordings, cinematograph films, television broadcasts and certain publications.
156 Relevantly for present purposes, s 90 provides as follows:
90 Cinematograph films in which copyright subsists
…
(2) …copyright subsists, subject to this Act, in a cinematograph film if the film was made in Australia.
…
157 There is not presently any doubt that the 14-minute Footage (like the raw footage from which it was compiled) qualifies as a cinematograph film. Section 86 of the Copyright Act identifies the rights that comprise copyright in material of that kind:
86 Nature of copyright in cinematograph films
For the purposes of this Act, unless the contrary intention appears, copyright, in relation to a cinematograph film, is the exclusive right to do all or any of the following acts:
(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.
158 Section 98 of the Copyright Act is headed “Ownership of copyright in cinematograph films”. Relevantly for present purposes, ownership in the copyright that attaches to a cinematograph film vests in its maker. It is not controversial in this matter that FTI owns (that is to say, is the legal owner of) the copyright in the 14-minute Footage (and the raw footage from which it was compiled).
159 Copyright is “…personal property and…is transmissible by assignment, by will and by devolution by operation of law”: Copyright Act, s 196(1).
160 The owner of the copyright that subsists in respect of a cinematograph film is, then, possessed of rights that inhere to the exclusion of others; including the right to broadcast or communicate it to the public. That right may be transferred to another by assignment (for example, by sale or licence—including to a television news broadcaster) or by operation of law.
8.2 Case law
161 So far as the parties’ researches could tell, the observations of Gummow and Hayne JJ in Lenah have not been applied so as to require the assignment of copyright subsisting in a film that was created as the product of a trespass. It has, however, been attempted.
162 In Windridge Farm Pty Ltd v Grassi (2011) 254 FLR 87 (“Windridge”), the New South Wales Supreme Court (Hall J) rejected a contention that a constructive trust arose in respect of the copyright in a film that was created by animal rights activists whilst they were trespassing upon the plaintiff’s property. There, as here, activists made their way unlawfully upon private premises (namely, the plaintiff’s piggery) and, whilst there, took photographs and video footage of what they observed. That material was then provided to an animal rights organisation, apparently for the purposes—indeed, solely for the purposes—of enabling that organisation to obtain a report on the conditions to which animals at the piggery were subjected and, if appropriate, to engage with the police with a view to investigating allegations of animal cruelty.
163 Perhaps a matter of some importance concerns the evidence as to the trespassers’ intentions in creating the photographic and video material that was created. On the evidence, the court was satisfied that they did not intend to publish what they had created, nor otherwise to use it with a view to harming the plaintiff’s business or goodwill. Relevantly, Hall J concluded (at 104 [122]-[123]):
122 It is clear, in my opinion, that on the facts of the present case there was no breach of confidence involved in the actions of the defendants in making the video film and in taking the photographs or in providing the film to [the animal rights organisation]. I accept their evidence that they did not authorise the video film to be made available to anyone other than a veterinarian surgeon and police, in particular, they did not authorise its release to the media. On the facts of the matter, no basis exists for breach of confidence by the defendants.
123 Accordingly, the evidence does not, in my opinion, provide a basis for an equity in the plaintiff which, in accordance with settled practice and principle, is a necessary condition for the grant of injunctive relief.
164 Later, his Honour came to address the plaintiff’s suggestion that copyright in the photographs and video footage was the subject of a constructive trust. His Honour observed (at 105 [127]-[130], 106 [134]-[135]) (emphasis original, references omitted):
127 …before a constructive trust can arise in respect of [the copyright in a] cinematograph film made by a trespasser, it is necessary to determine whether, on the facts of a particular case, a conclusion can be reached as to whether or not it would be inequitable and against good conscience for the maker to assert ownership in the copyright as against the plaintiff claiming relief. Reference was made in submissions to the observations by Gummow and Hayne JJ in [Lenah] concerning the decision in Lincoln Hunt, noting that the film was taken by the trespassing film crew, in the words of Young J, “upon private premises in respect of which there is some evidence that publication of the film would affect goodwill”.
128 The relevant facts in the present case include the following. The premises in question were not residential premises and there was no evidence that the defendants intended any publication of the film (or the photographs) or did publish them beyond making them available to [the animal rights organisation] for investigation. Furthermore, there is no evidence that such publication of the video film and/or the photographs as was made adversely impacted upon either the goodwill or the standing of the plaintiff.
129 Apart from the unlawfulness of the entry onto the premises by the defendants, the evidence does not establish the type of circumstances to which Gummow and Hayne JJ in [Lenah] adverted. These circumstances include matters which constitute either an invasion of the legal or equitable rights (such as the right to confidentiality) of the owner or occupier of premises or facts that establish a breach of any equitable obligation operating between (in this case) the plaintiff and the defendants at the time the film and the photographs were made or taken.
130 In the present case, the circumstances in which the film was made and the photographs taken by the defendants at the request of [the animal rights organisation] were markedly different from those in Lincoln Hunt in which the very purpose in making the television film was for general publication via the relevant television network.
…
134 Further, there is no evidence of any intention or proposal by the defendants to profit from or to otherwise use the films or photographs either directly or indirectly through another. Further, the evidence does not establish that there is a real risk of harm to the plaintiff in the future through any use of the photographs [or] video film. Indeed, as I have indicated, there is no evidence that the defendants intend to use or publish the film or photographs in any way. Further, there is no evidence that the defendants have authorised [the animal rights organisation] to publish the video film. The evidence was, as earlier stated, that the video film was provided to [the animal rights organisation] solely for investigation purposes.
135 The above facts are also relevant to the plaintiff’s claim for any order that the copyright be assigned at law to the plaintiff. I do not consider there has been established in evidence a basis for such an order.
165 The points of distinction that separate the facts in that case from those arising here will be immediately apparent. Unlike in Windridge, the acknowledged trespasser here remains in possession of what was created during the trespass and intends to use it in a way that will (or is intended to) harm GMC commercially. As I have already found, that was FTI’s purpose in effecting the trespasses and creating the footage.
166 As to that, it bears repeating that FTI maintained that its purpose was no more than to “investigate” GMC’s practices. As has already been said, that is an unduly and generously narrow description of FTI’s purpose, which I reject. It should be borne in mind that the initial use to which the footage was put was as the foundation for the DAFF Complaint, by which FTI called for the “immediate suspension” of GMC’s licence to operate. It is clear from FTI’s history and public statements—and more so from the evidence that Mr Delforce gave (above, [124]-[126])—that FTI’s objective was to ascertain whether GMC’s activities were tainted in ways that it could publicise; and, to the extent that it considered that they were, to effect precisely that measure of public exposure.
167 Having said so, it follows that I do not accept the contrary premise advanced on behalf of FTI; namely, that its decision to publish the 14-minute Footage to Channel Seven was made only after the Department failed or refused to act upon what FTI had sent it. As history records, fewer than two weeks passed between the making of the DAFF Complaint and the publication of the 14-minute Footage to Channel Seven (and its subsequent publication on the internet). The suggestion that a Commonwealth government agency might be moved to shut down a substantial commercial undertaking in such a short space of time is self-evidently fatuous; more so considering that it was asked or expected to do so upon material sent to it by committed activists whose interest in presenting a one-sided account could hardly be doubted.
168 Plainly, FTI was moved to send the 14-minute Footage to the Department as an initial (and, if I might say, sensible) step in its campaign. By doing so, it was afforded a veneer of legitimacy that might otherwise have been lacking had it proceeded directly to a process of public shaming. Nonetheless, having regard to the evidence that Mr Delforce gave—not only about FTI’s objectives but also about the incompetence or indifference that he attributes to the Department—I have not the slightest doubt that it was always his intention (and, through him and Ms McDonald-Eckersall, that of FTI) that the footage that was obtained would be made public, at least to the extent that it depicted anything that was considered worthy of publication. That is what FTI exists to do: to create “transparency” as to how commercial meat-processing businesses are run.
169 That very much appears to align with FTI’s history of high-profile activism. The evidence made clear that FTI—particularly via the agency of Mr Delforce—has had occasion to trespass upon many dozens of private premises to obtain footage equivalent to what was obtained here. The evidence was unambiguous (and, indeed, not controversial): the Farm Transparency website contains thousands of videos and images collected at various locations as a result of those trespasses.
8.3 What is the equity?
170 The “fundamental principle according to which equity acts [is] that a party having a legal right shall not be permitted to exercise it in such a way that the exercise amounts to unconscionable conduct”: Legione v Hateley (1983) 152 CLR 406, 444 (Mason and Deane JJ). That principle reflects the Court of Chancery’s animating purpose (or one of them), namely (references omitted):
…the purification of the defendant’s conscience. It was a cathartic jurisdiction. If a person is allowed to remain in possession of property which it is against conscience for him to retain, his conscience will be oppressed; and the court, out of tenderness for his conscience, will deprive him, notwithstanding his resistance, of what is so heavy a burden upon it.
(See: Denis Browne, Ashburner’s Principles of Equity (Butterworth, 2nd ed, 1983), 38-9).
171 In Burns Philp Trustee Co Ltd v Viney [1981] 2 NSWLR 216, Kearney J observed (at 223-4):
The administration of equity has always paid regard to the infinite variety of interests and has refrained from formulating or adhering to fixed universal and exhaustive criteria with which to deal with such varying situations. The approach traditionally adopted by equity has been to retain flexibility so as to accommodate the multitudinous instances in which the fundamental equitable rules fall to be applied.
172 The analysis that follows concerns the existence of an equitable right inhering to GMC’s benefit, the vindication of which might sound in relief of the kind for which it moves in relation to the copyright that attaches to the 14-minute Footage (and the raw footage from which it was created). It is that proprietary interest—copyright—that serves as the subject upon which GMC invites equitable intervention. Perhaps other of FTI’s legal interests could equally have been cast in that role. It seems to me that if it can be said that FTI now finds itself in legal possession of an interest that it obtained in circumstances that warrant equitable intervention, it shouldn’t matter what form that interest assumes. For obvious reasons, though, it is unnecessary that I should approach the identification of a relevant equity otherwise than in the copyright context that GMC has put in focus.
173 In the right circumstances, the receipt of information can bespeak limitations as to its use. Thus, in Seager v Copydex Ltd [1967] 2 All ER 415, Lord Denning spoke of “…the broad principle of equity that he who has received information in confidence shall not take unfair advantage of it”. At the very least, refraining in that regard requires that information so received not be used without consent against the person who supplied it.
174 Here, of course, there was no imparting of information as between GMC and FTI, and plainly no relationship of trust and confidence. Nonetheless, “…the principle of good faith upon which equity acts to protect information imparted in confidence may also be invoked to ‘restrain the publication of confidential information improperly or surreptitiously obtained’”: Lenah, 224 [34] (Gleeson CJ, citing Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39, 50 (Mason J)).
175 Presently, GMC does not submit—indeed, could not realistically submit—that the information that FTI obtained was confidential in nature. There is no suggestion that the events depicted in the 14-minute Footage (or the raw footage from which it was created) are in the nature of trade secrets, nor that there is some other characteristic inherent in them that would suffice to attach some obligation of confidence (as was the case, for example, in Donnelly v Amalgamated Television Services Pty Ltd (1998) 45 NSWLR 570 (Hodgson CJ in Eq)).
176 Instead, it is said that the circumstances in which the footage was obtained were such as to involve a want of conscience sufficient to warrant equity’s intervention. Those circumstances should hardly require restatement. On any view, the footage was the prize that FTI obtained as the intended result of the trespasses that were committed in its name. They were committed so that FTI could obtain footage that it could, at its discretion, later use against GMC. Might that suffice to establish an equity upon which the law should recognise that copyright in what was obtained is held constructively on trust for GMC’s benefit?
177 But for the absence of authority, I would have been disposed to the view that it should. For the best part of two centuries, courts of equity have been prepared to grant relief against defendants possessed of information obtained by reason of “…a breach of trust, confidence or contract”: Prince Albert v Strange (1849) 1 Mac & G 25; 41 ER 1171, 1178 (Cottenham LC). The fact that information has been obtained through the commission of a crime or tort might not, by itself, suffice to warrant equivalent relief: Lenah, 230-1 [55] (Gleeson CJ); Smethurst v Commissioner of the Australian Federal Police (2020) 272 CLR 177 (“Smethurst”), 219-20 [94] (Kiefel CJ, Bell and Keane JJ). But there is, in my view, much to commend the submission that, subject to discretionary considerations, equity might intervene to grant relief in relation to information that is directly obtained:
(1) as the intended consequence of wrongful conduct; and
(2) for the purposes of using it to visit prejudice upon the victim against whom that conduct was carried out.
For a respondent to realise the benefit that was intended to materialise from conduct of that kind would, I think, aptly be described as unconscionable (or unconscientious: see Lenah, 244-5 [98] (Gummow and Hayne JJ)).
178 For at least two reasons, though, that instinct should not presently be indulged.
179 The first is that the characteristics that I would otherwise be inclined to consider as sufficient are no more in play here than they were in Windridge. There, as here, activists intentionally infringed upon the plaintiff’s rights with a view to obtaining information that they otherwise would not have been able to obtain; and did so intending that it should be used to the plaintiff’s prejudice. Perhaps that case may be distinguished by reference to the degree of prejudice intended—in that, unlike in the present matter, there was no intention to wage the kind of public shaming campaign to which FTI intends to subject GMC. Perhaps it may be distinguished on discretionary grounds (in that, unlike in his matter, the defendants in Windridge were no longer in possession of the footage).
180 Similar (though not identical) observations might be made about the circumstances that attended in Smethurst (in that the trespass there was also deliberately (though not knowingly) committed with the intention of obtaining information for later use against (relevantly) its victim). The court should, I think, be very slow to favour a result that deviates from what transpired in those cases in the absence of some clearly apparent distinguishing feature or features.
181 Moreover (and second), the absence of precedent is significant. I 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. Although, by its nature, equitable relief is available generally when circumstances suffice to warrant it, the court should proceed with caution to recognise such circumstances for the first time. At least at first instance, I consider that I should refrain from indulging in the kind of “bold step” that trial judges should ordinarily leave for higher consideration: see Minister for Environment v Sharma (2022) 291 FCR 311, 485 [753]-[754] (Beach J, with whom Allsop CJ and Wheelahan J agreed in the result).
182 Sympathetic though I am to the contrary view, I am not persuaded that GMC can identify an equity sufficient to justify intervention of the kind for which it moves. It follows that I do not accept that there is an occasion to recognise or declare that FTI holds copyright in the 14-minute Footage (or the raw footage from which it was compiled) constructively on trust for GMC’s benefit, nor to grant any ancillary relief in consequence.
8.4 Discretionary considerations
183 Having concluded as I have, it is unnecessary that I should consider whether there are discretionary reasons to decline equitable relief in relation to the copyright that attaches to the 14-minute Footage (and the raw footage from which it was created).
184 Nonetheless, I should wish to make some brief observations in that regard, if only in deference to the parties’ efforts in making the submissions that they made.
185 FTI maintained that GMC ought not to attract relief in equity because “[e]quity will not assist a party with unclean hands and it is a jarring feature of the applicant’s case that it seeks the protection of equity against the dissemination of footage of illegal conduct by it”. As has already been noted, it is not clear that the events depicted in the footage that FTI unlawfully obtained were events that involved “illegal conduct”. I should not wish to be understood as finding that they didn’t; but that is not sufficient for present purposes. On the evidence such as it fell, I 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.
186 Having said that, had it been possible to conclude that the footage depicts unlawful conduct (whether criminal or otherwise), I would readily have accepted that that would be a consideration apt to guide the exercise of the court’s discretion to grant or not grant injunctive relief. Equity would not generally intervene to grant injunctive relief to frustrate the disclosure of conduct that it would be in the public interest to reveal: A v Hayden (1984) 156 CLR 532, 544-5 (Gibbs CJ); Smethurst, 221 [99] (Kiefel CJ, Bell and Keane JJ).
187 FTI further maintains that its motivations are animal welfare-related and that it has no desire to exploit the footage for commercial gain. Perhaps both propositions can be accepted (certainly the first can be). It seems more likely than not that, if it is able to publish the footage that it has obtained, FTI will 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. There might be scope to argue at the margins; but it is difficult to suggest that FTI’s desire to publish the footage that it has obtained is not animated by the pursuit of its own objectives. I am not persuaded that its motives afford some discretionary basis upon which GMC might be denied relief in equity.
188 FTI next submits that the court should decline relief on discretionary grounds in circumstances where the events depicted in the footage could be made the subject of other media, such as sketches or “hyper-realistic cartoon[s]”. It is unnecessary to address such hypotheticals. If there were some suggestion that FTI has, by its unlawful conduct, come to be in possession of material of that kind, it might well be that GMC would have a similar claim to relief in respect of it. The possibility that such material might be created does not stand as a discretionary basis upon which to deny GMC the relief that is actually sought in relation to material that actually exists.
8.5 Conclusions
189 I do not accept that FTI holds copyright in the 14-minute Footage (or in the raw footage from which it was created) on constructive trust for GMC’s benefit. The relief that is sought upon that assertion should and will be refused.
Part 9: Relief in tort
190 It is necessary for attention to return to the relief that should be granted in light of the findings that I have made as to GMC’s case in tort for trespass (being the only cause of action that I am satisfied has been made out on the evidence).
191 GMC submits that it should obtain relief in tort in three forms: first, in the form of permanent injunctions to restrain FTI from publishing or further publishing the footage that it obtained in consequence of its trespasses; second, in the form of general damages; and, third, in the form of exemplary damages.
192 I shall address each head of relief separately.
9.1 Injunctive relief
193 Having established (without resistance) its case in trespass, GMC urges the court to grant injunctive relief to prevent FTI from realising the benefit that it hopes to realise from having gained the footage that it gained.
194 It is, of course, the case that FTI’s trespasses upon the Eurobin Premises are complete and have been since April 2024. There is no suggestion that, unless restrained, FTI will again descend unlawfully upon them in the future (although I consider it clear enough from Mr Delforce’s evidence that that will likely transpire at other commercial premises, in line with FTI’s acknowledged history and commitment to continuing to engage in unlawful conduct in pursuit of the “transparency” that is one of its animating objectives).
195 It is also the case that the 14-minute Footage (and the raw footage from which it was compiled) was obtained or created only because FTI’s agents were able unlawfully to gain access to the Eurobin Premises and install covert recording equipment at the Abattoir without GMC’s knowledge.
196 None of that is controversial. Does it suffice to entitle GMC to injunctive relief of the kind that is sought?
197 In Lincoln Hunt, the Supreme Court of New South Wales (Young J) was called upon to determine an application for interlocutory injunctive relief made by the proprietor of commercial premises onto which an investigative journalist had trespassed for the purposes of creating television footage. The business sought to prevent by injunction the publication of the footage that was created. The court accepted that the footage was obtained in the course of a trespass; but there was no suggestion that it involved any breach of confidence.
198 Young J declined to grant interlocutory injunctive relief on the basis that damages would afford the plaintiff an adequate remedy for the trespass. In the course of so deciding, his Honour observed (at 463-4):
…the Court has power to grant an injunction in the appropriate case to prevent publication of a videotape or photograph taken by a trespasser even though no confidentiality is involved. However, the Court will only intervene if the circumstances are such as to make publication unconscionable…
In the instant case, on a prima facie basis I would have thought that there is a lot to be said in the Australian community where a film is taken by a trespasser, made in circumstances as the present, upon private premises in respect of which there is some evidence that publication of the film would affect goodwill, that the case is one where an injunction should seriously be considered. However, there is a long way to go from that point to the point where the court actually grants an injunction. The court will only grant an injunction if it can be seen that irreparable damage will be suffered by the plaintiff if such an injunction is not given. Such may occur where the damages are virtually impossible of quantification…
199 Twelve years later in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 (“Patrick”), the High Court had occasion to affirm the point of general principle that an injunction might issue in respect of tortious conduct that has completed. Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ observed (at 31 [33]) (references omitted):
A court whose jurisdiction is invoked in a conspiracy case has power to grant an injunction to prevent the completion or effecting of the conspiracy. Where the acts contemplated by the conspirators have all occurred and the tort is complete, the remedy available to an injured plaintiff is ordinarily limited to the recovery of pecuniary damages. But for over a century it has been established that “there is no rule which prevents the court from granting a mandatory injunction where the injury sought to be restrained has been completed before the commencement of the action”. Where the damage caused by tortious conduct is ongoing and is “extreme, or at all events very serious”, a mandatory injunction may issue compelling the wrongdoer to prevent the occurrence of further damage.
200 In Lenah, the High Court considered what Young J had said in Lincoln Hunt. After referring neutrally to Young J’s observations, Gummow and Hayne JJ proceeded to make the observations about copyright that are replicated above (at [153]). Ultimately, the court (by majority) set aside the injunctive relief that had earlier been granted as against the appellant broadcaster. Gleeson CJ, Gaudron, Gummow and Hayne JJ did so on the basis that the respondent abattoir had not identified a legal or equitable right that could have been enforced by final judgment. Kirby J did so on “implied rights” grounds. Callinan J dissented.
201 It is to be recalled that Lenah involved an appeal by a broadcaster into whose possession footage obtained as a result of a trespass had fallen. Injunctive relief granted as against the trespassers was not disturbed.
202 Nearly two decades later, in Smethurst, the High Court again had an opportunity to consider the appropriateness of injunctive relief as a means of addressing tortious misconduct. There, the High Court (exercising its original jurisdiction) declined, by majority, to grant injunctive relief in respect of information obtained from a journalist upon execution of what was, although unknown at the time, later found to be an invalid search warrant. There, as here, there was no suggestion that the information so obtained was confidential; rather, it was simply said that it had been obtained as a direct result of tortious conduct (that is to say, conduct amounting to trespass). Relief was sought in the court’s auxiliary jurisdiction in equity.
203 The submission that was advanced by the plaintiffs in Smethurst bears more than a passing resemblance to GMC’s in this case: it was said that “…an injunction should be granted to reverse or protect them from the effects of the trespass committed as a result of the [search warrant] being invalid”: Smethurst, 206-7 [48] (Kiefel CJ, Bell and Keane JJ).
204 Kiefel CJ, Bell and Keane JJ—who, with Nettle J, formed the majority that declined the injunctive relief that was sought—observed that it is “well settled” that courts will only grant relief in relation to a completed trespass “…if the damage which has occurred is serious or the trespass is continuing in its effects”: Smethurst, 212 [68]. Later (and in relation to what plainly was the purpose that the police hoped to further by execution of the defective warrant), their Honours took the view that it was “…not possible to regard the prospect that one may be investigated for an offence as injury”: Smethurst, 213 [73].
205 Their Honours concluded that no injunctive relief could be granted in respect of the admitted trespass; and that there was no other juridical basis for it in the court’s auxiliary jurisdiction in equity (which is to say, no other legal right in vindication of which such relief might have been warranted). Nonetheless, they went further (at 223 [104]), observing:
The public interest in both the investigation and the prosecution of crime would not suggest as appropriate an order that the information be taken from the [Australian Federal Police (“AFP”)] and given to the plaintiffs. The prospect that criminal conduct may be disclosed is a sufficient reason to decline the relief sought.
206 Nettle J agreed with the orders proposed by Kiefel CJ, Bell and Keane JJ; but for different reasons. His Honour accepted (at 239 [149]) that injunctive relief was theoretically available to compel the return of the information seized upon execution of the defective warrant. Nonetheless, he declined the invitation to grant it on the basis that the information that had been seized was to be used only for purposes that would have been authorised had it been properly obtained: Smethurst, 244-5 [160]-[162].
207 In separate dissenting judgments, Gageler, Gordon and Edelman JJ all favoured the view that, in the circumstances there presenting, injunctive relief was appropriate. Recognising that such relief would be available only to the extent that damages would not afford an adequate remedy, Gageler J observed (at 229-30 [122]-[123]) (references omitted):
122 In circumstances where the AFP continues to hold a copy of the data downloaded by the AFP from Ms Smethurst’s mobile phone through the commission of the trespasses, however, how can damages possibly be an adequate remedy? The essential characteristic of the information embedded in the data as it existed on the mobile phone before the commission of the trespasses was that access to the information was within her exclusive power to control by virtue of her possession of the mobile phone and its location in her home. The information embedded in the data is information to which she alone would continue to control access but for the AFP having trespassed against her. For so long as the information remains in the hands of the AFP, the direct effects of the infringement of her rights to possession of her home and of her mobile phone are serious and ongoing. There being no suggestion that the value of the information embedded in the data to her is wholly commercial, money alone cannot restore her to the position she would have been in had the trespasses not been committed.
123 Had some technologically adept scoundrel forced his way into Ms Smethurst’s home, hacked into her mobile phone, downloaded the same data and refused to give the data back, I cannot imagine that an application by her in the “auxiliary jurisdiction” of equity to aid the common law for an injunction to compel the scoundrel to return the data would be refused on the basis that the trespasses did not have an ongoing effect that was legally cognisable or on the basis that damages were an adequate remedy…
208 Later (at 232 [130]), his Honour sought to identify the “juridical basis” that Kiefel CJ, Bell and Keane JJ had said was missing (references omitted):
The juridical basis for the final mandatory injunction sought by Ms Smethurst lies in its issue within the discretion of the Court being constitutionally appropriate to restore Ms Smethurst to the position she would have been in had her common law rights to control access to her real and personal property not been invaded by the tortious conduct of the AFP in circumstances in which money alone cannot restore her to that position.
209 Gordon J approached her task conscious that the conduct in respect of which relief was sought involved the purported exercise of executive power. Her Honour expressed, at a general level (at 245 [165]), the view that “[t]he law would take a seriously wrong turn if this Court held that it could not grant an injunction to restore a plaintiff, so far as possible, to the position they would have been in had power not been exceeded without the plaintiff demonstrating that, in addition to the excess of power, a private right is also breached by retaining what is seized.” Thus, her Honour’s primary analysis focused upon the fact that the execution of the search warrant in that case was beyond what the respondent was authorised to do.
210 Nonetheless, her Honour was also concerned to examine the availability of equitable relief to address the respondent’s tortious conduct (which is to say, the trespass). Her Honour reasoned (at 257 [196]-[197]) (emphases original, references omitted):
196 …It has long been recognised that invasions of private property may only take place with positive legal authority. The right in aid of which equity would act is the right not to suffer a trespass. It is not necessary to identify a further right or a continuing trespass for equity to intervene in aid of that right not to suffer a trespass, if equity is intervening, against the trespasser, in order to address harm flowing from the trespass. That is the case here, where copying data from Ms Smethurst’s mobile phone and taking the copy of the data were only possible due to the trespass to her goods by the executing officer. Moreover, damages would not restore Ms Smethurst to the position she was in prior to the unlawful exercise of power because the AFP would continue to have a copy of data obtained from her mobile phone.
197 Since damages are not an adequate remedy, equity would seek to restore the position of Ms Smethurst to that prior to the trespass, which extends to a consideration of the consequences of the trespass. In the current age, where information may be as valuable to individuals as property, the law cannot overlook the obtaining of data as a consequence of trespass that falls within the damage suffered as part of the trespass. It is not necessary to establish rights of property in the data itself to reach that conclusion…
211 Edelman J accepted that the plaintiffs were entitled to injunctive relief “…to reverse the consequential effect on Ms Smethurst’s privacy of the tort of trespass”. His Honour was moved so to conclude because he considered that Ms Smethurst’s “…interest in privacy is sufficient to establish that damages would not be adequate”.
212 Presently, GMC maintains that it is appropriate for the court to grant injunctive relief to restrain publication of the footage that FTI created because the damage to its goodwill if publication were to occur would be almost impossible to calculate and very likely beyond what FTI would be capable of paying.
213 FTI submits that injunctive relief is not appropriate because GMC cannot establish “continuing or extreme” damage upon which relief of that kind depends. Moreover, FTI posits that “[i]t is untenable to suggest that publication of footage is the continuation of the trespass”. By its written submissions in closing, it maintained:
It is correct to observe that obtaining of the footage was made possible by the trespass. However, once trespassing, the respondent did not commit any further breach of the law by filming what was there to be observed nor invade any further rights of the applicant. The respondent was not an outlaw whilst trespassing. The law treats the acts of trespass, and filming (even if whilst a trespasser), as distinct and not interrelated. One cannot slide as between those two separate matters, despite them arising from the same factual matrix.
214 I accept those submissions. If GMC is entitled to equitable relief to remedy a legal wrong—here, the admitted acts of trespass—it would need to establish its subjection to ongoing and extreme prejudice of the kind to which the High Court alluded in Patrick. I do not consider that it can do so. If FTI were to publish the footage that it obtained as the fruit of its unlawful trespass, the consequences for GMC are difficult to pinpoint. I would accept, at a level of generality, that they would unlikely be positive. But the extent to which they might sound in immeasurable or extreme damage to GMC’s goodwill would depend on all manner of circumstances, not the least being the manner in which GMC sought to counter any public backlash. I do not consider it possible to conclude that the damage to GMC’s goodwill would be so significant as to clear the hurdle that needs to be cleared.
215 All of that assumes, in any event, that the injury that GMC might suffer if the footage is made public stands as injury suffered as a result of FTI’s trespasses. There is a distinction that must be drawn between the commission of the tort—that is to say, the unauthorised entrance by FTI’s agents onto the Eurobin Premises and the installation there of the covert recording equipment that was thereupon installed—and the publishing of information obtained as a result thereof. The latter involves no interference with any legal right that GMC possesses and is not, in and of itself, tortious. The injury that inheres to GMC’s prejudice as a result of the trespasses is, at most, FTI’s possession of the footage; not its publication.
216 In the right circumstances (discussed above at [176]-[182]), that injury might be amenable to relief in equity as an example of an injury arising from unconscionable or unconscientious conduct of the kind against which equity protects; but that is not what is here in focus. Here, the question is whether equity might afford GMC a remedy (specifically, injunctive relief) on account of its having been subjected to a legal wrong (in the form of a trespass or trespasses).
217 The distinction is perhaps best explained by example. If Mr Delforce or Ms McDonald-Eckersall had, by reason of their trespasses, simply observed what is depicted in the footage, could it seriously be suggested that they might be prevented by injunction granted as a remedy in tort from discussing with others what they saw? I do not consider that it could. Perhaps, as I have explored, there might be a basis in equity for an injunction in those (or other) circumstances; but not for an injunction ancillary to the tort.
218 It follows that I do not accept that GMC is entitled to injunctive relief to address the tortious wrongdoing committed against it. The proper relief to which GMC is entitled in light of the trespasses that it has endured is an order for damages.
9.2 The constitutional defence
219 Having concluded as I have, there is no occasion to address the constitutional basis upon which FTI contended that no injunctive relief could issue. Again in deference to the efforts to which the parties went in addressing the point, I should wish to record only some brief observations.
220 The Constitution (by ss 7 and 24, amongst others) implicitly affords a measure of protection against legislative and executive measures that constrain the exchange of communications about matters of politics or public government: Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. In doing so, it guarantees—to a point—that people within Australia shall be free to receive and disseminate information that enables them to exercise a free and informed choice as electors. That freedom is not unqualified; but, whatever its limits, it endures beyond periods of election campaigning.
221 The right to communicate freely about matters of politics or government that the Constitution implicitly guarantees is one that “…protects the free expression of political opinion…[and] operates as a limit on the exercise of legislative power to impede that freedom of expression”: Brown v Tasmania (2017) 261 CLR 328 (“Brown”), 359 [88] (Kiefel CJ, Bell and Keane JJ).
222 Presently, FTI maintains that “…the rules of equity must conform to the Constitution including the constitutional imperative that there be a sufficient degree of freedom in relation to political and governmental matters to enable the workable functioning of the system of representative and responsible government in Australia”. So far as I have understood it, the contention is that the court ought not to grant injunctive relief to restrain publication of the footage that FTI has obtained because doing so would constrain its ability to communicate about matters of politics or government (specifically, about the practices to which animals are subjected at commercial slaughterhouses) in a way that would be constitutionally impermissible if attempted by legislative or executive action.
223 The implied constitutional guarantee of free political communication “…is not a licence to commit trespass”: Brown, 409 [261] (Nettle J). If there were an occasion here to grant injunctive relief in tort (or, for that matter, in vindication of any other cause of action), there would not be anything implicit in the Constitution to require that it not be granted. The court’s power to grant relief of that nature is not incompatible with the notion of representative democracy created by or implicit in the Constitution. On the contrary, it is very much a feature of it: Lenah, 282 [200] (Kirby J).
224 By its written submissions in closing, GMC contended that (references omitted):
…discretionary injunctive relief in this case will not impose any real or substantial burden on FTI’s ability to engage in expressive political communication about its true areas of interest: namely, the abstract cause of animal rights. FTI has no need to broadcast clandestine films obtained by trespassing on [GMC’s] premises, in order to try to persuade the public of its wider ideological message. Delforce is a seasoned campaigner and film-maker. McDonald-Eckersall is a seasoned campaigner, media strategist and spokeswoman. There are many ways in which they might legitimately seek to influence public opinion without any need to use surreptitious materials obtained from their illegal trespass upon GMC’s property in knowing disregard of the law.
225 Although not to a point that warrants injunctive relief, I accept those submissions. Had it been necessary to do so, I would have been inclined to reject the constitutional defence that FTI advanced.
9.3 General damages
226 By its written closing submissions, GMC helpfully identified a suite of principles relevant to assessing the amount that it should be awarded by way of general damages in tort to compensate it for the trespasses that FTI committed. Those principles were not the subject of contest and it is convenient to replicate them (emphases original, references omitted):
The principles relevant to the award of general damages are well known. First, the tort of trespass is actionable per se. Proof of special damage or loss is not necessary for there to be an award of damages.
Second, general damages ‘should reflect the significant purpose of vindicating the … right to exclusive occupation’.
Third, one considers the duration and extent of the trespass. In a case unlike the present, if the trespass were ‘only for a very short period of time and the physical extent of the entry was quite small’, then the damages might be lower.
Fourth, one takes into account any ‘inconvenience and distress, the length of time the trespass continued, [the defendant’s] recalcitrant attitude and the need to uphold and vindicate a landowner's right to possession.’
Fifth, one considers any benefit obtained by the wrongdoer at the landowner’s expense. This includes wrongful use of exclusive possession (compensated by mesne profits), and also intrusions that do not amount to exclusive possession (such as rights of way or misuse of mineral rights, compensated by wayleaves), or the misuse of chattels. Such damages can be described as ‘restitutionary’.
227 FTI accepts that GMC is entitled to an award of general damages to compensate for the trespasses that were committed against it. It submits that damages in the sum of $21,000.00 are appropriate, a sum at which it has arrived by adjusting for inflation the equivalent sum that was awarded in Windridge.
228 GMC invites the court to award general damages in the range of $125,000.00 to $150,000.00. That range, it says, is appropriate having regard to the following considerations, namely that:
(1) there were repeated trespasses committed over seven separate occasions;
(2) each involved senior personnel of FTI’s;
(3) each lasted for between (approximately) one and three hours in duration;
(4) each involved “a significant penetration of [GMC’s] well secured premises”;
(5) there were ongoing trespasses between January and April consisting of the installation of multiple hidden cameras;
(6) the trespasses wrought actual (albeit not significant) damage to GMC’s premises (in that holes were drilled into the structure);
(7) the trespasses carried with them “real risk[s] to biosecurity”;
(8) FTI “made money from the trespasses”; and
(9) FTI is unrepentant in its desire to publish the footage that it obtained as a result of the trespasses.
229 Insofar as concerns a tortious trespass, general damages are awarded to compensate a victim for the violation of his or her right to exclusive occupation of land or premises. In Plenty v Dillon (1991) 171 CLR 635, Gaudron and McHugh JJ observed (at 654-5):
…the purpose of an action for trespass to land is not merely to compensate the plaintiff for damage to the land. That action also serves the purpose of vindicating the plaintiff’s right to the exclusive use and occupation of his or her land … If the occupier of property has a right not to be unlawfully invaded, then … the “right must be supported by an effective sanction otherwise the term will be just meaningless rhetoric”: “The Right Approach?” Law Quarterly Review, vol. 96 (1980) 12, at p. 14 … If the courts of common law do not uphold the rights of individuals by granting effective remedies, they invite anarchy, for nothing breeds social disorder as quickly as the sense of injustice which is apt to be generated by the unlawful invasion of a person’s rights…
230 Here, I am not persuaded that all of the considerations to which GMC points are apt to inform the court’s assessment of how it has been affected by FTI’s trespasses. It is not apparent, for example, why GMC should be understood to have been affected by the seniority of the personnel that executed the trespasses. GMC did not know their identity until it was disclosed at the trial. Why or how that disclosure might inform the court’s assessment of general damages was not explained and is not apparent.
231 Similarly, the fact that FTI is “unrepentant” about its desire to publish the footage that was obtained, or that it has made (or might make) money from its intrusions, does not obviously bear upon the nature of the trespasses or their consequences for GMC. Both propositions can be accepted; but how that might bear upon GMC in a way that requires some additional compensatory effort is not apparent.
232 Having said that, I accept—indeed, I consider it plainly to be so—that the incursions onto the Eurobin Premises here constitute far greater a violation of GMC’s property rights than did the more limited incursion with which Hall J dealt in Windridge. The repeated nature of the incursions over an extended period and the installation of hidden cameras, in particular, represent particularly egregious escalations relative to that case; and, more to the point, are considerations that should logically sound in a greater award of general damages.
233 I consider that the following considerations should guide my assessment of an award of general damages in this case, namely that:
(1) the Eurobin Premises were well secured in a way that is apt to protect both the property itself and also the Abattoir’s operations (necessitating, as plainly they did, adherence to various regulatory requirements);
(2) FTI’s intrusions onto the Eurobin Premises thus represented serious and determined invasions, which were repeated and regular, conducted late at night over several months;
(3) the trespasses subjected the Abattoir to potentially very serious biosecurity risks, to say nothing of the risks to the individual trespassers themselves (at least one of whom came close to drilling through a high-voltage supply cable); and
(4) the intrusions involved deliberate damage—albeit minor damage—to property.
234 Appreciating that general damages should reflect the significant purpose of vindicating GMC’s right to exclusive occupation of the Eurobin Premises, I consider that an award in the sum of $30,000.00 is appropriate.
9.4 Exemplary damages
235 In addition to its claim for general damages, GMC submits that the court should award it exemplary damages on account of the manner in which FTI’s trespasses transpired. Three questions arise for consideration: what criteria govern the exercise of the court’s power to grant exemplary damages; should they be awarded in this matter; and, if they should, in what amount? I shall address each separately.
9.4.1 Criteria to be considered
236 There is no dispute that the court has a broad power to grant exemplary damages in respect of a tortious trespass: XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 (“XL Petroleum”). That power may be exercised where the conduct in question has involved “conscious and contumelious disregard for the plaintiff’s rights” (see Lamb v Cotogno (1987) 164 CLR 1 (“Lamb”), 9 (Mason CJ, Brennan, Deane, Dawson and Gaudron JJ)) or “high-handed or deliberate conduct” (see Gray v Motor Accident Commission (1998) 196 CLR 1 (“Gray”), 7 [15] (Gleeson CJ, McHugh, Gummow and Hayne JJ)).
237 Exemplary damages are calculated to make an example of a tortfeasor so as to deter, both specifically and generally, similar conduct in the future: Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118, 158 (Owen J). The idea is to cause the wrongdoer to smart: XL Petroleum, 472 (Brennan J). When awarded, exemplary damages are:
…paid in addition to compensatory damages and, in that sense, will be a windfall in the hands of the party who was wronged. Nevertheless, they are awarded at the suit of that party and, although awarded to punish the wrongdoer and deter others from like conduct, they are not exacted by the State or paid to it.
See: Gray, 7 [15] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
238 Exemplary damages “…serve to assuage any urge for revenge felt by victims and to discourage any temptation to engage in self-help likely to endanger the peace”: Lamb, 9 (Mason CJ, Brennan, Deane, Dawson and Gaudron JJ). In Pollack v Volpato [1973] 1 NSWLR 653, 656-7, Hutley JA observed (in the context of exemplary damages fixed by a jury):
There is no tariff or basis for a tariff where a jury is entitled to inflict exemplary damages. Not only is the occasion for the award of such damages rare, but the jury is entitled not only to penalize the defendant for what he did but is entitled to make him an example to others. There can be no fixed scale for such deterrents … The jury has to translate its righteous indignation at the conduct of the defendant into monetary terms appropriate to the local situation…
…
Whereas compensatory damages have to be approached by looking at the situation of the plaintiff in consequence of the wrongful act to which he has been subjected, punitive damages have to be looked at from the side of the defendant. If he is to be punished, it is his proper punishment which provides the basis for the assessment of damages.
239 When fashioning an award of exemplary damages, it is appropriate to take account of a respondent’s means; not simply to ascertain his, her or its capacity to satisfy what is awarded but also to “…show what sum will be a sufficient deterrent against repetition of the conduct that attracts the award”: XL Petroleum, 472 (Brennan J).
240 A defendant’s reasons for engaging in conduct that attracts an award of exemplary damages may be relevant to the amount that should be awarded: Fontin v Katapodis (1962) 108 CLR 177, 187 (Owen J, with whom Dixon CJ agreed). So too may be the availability of criminal penalties: Gray, 15 [46]-[48] (Gleeson CJ, McHugh, Gummow and Hayne JJ); XL Petroleum, 463 (Gibbs CJ).
241 In Adams v Kennedy (2000) 49 NSWLR 78, 86 [35], Priestley JA (with whom Sheller and Beazley JJA agreed) observed:
There is little guidance from the reported decisions on what appropriate amounts of exemplary damages in the present case would be … the question of damages has to be left to the good sense of the court, with the only assistance to the court in its decision being the somewhat opaque rule that the damages must not be out of all proportion in the circumstances.
9.4.2 Appropriateness of exemplary damages
242 FTI accepts that its trespasses onto the Eurobin Premises were relevantly contumelious. It also accepts that it intends, at the least through the agency of Mr Delforce, to effect similar trespasses upon other premises in the future. Mr Delforce’s evidence on that topic was not ambiguous: he has “a long history of trespassing” upon commercial premises in connection with FTI’s undertaking; and he and FTI intend to continue trespassing upon similar premises in the future. He maintains that intention knowing that indulging it would subject him to the possibility of civil and criminal sanction. He considers that conduct of that kind is warranted in order to bring a measure of public “transparency” to the practices of commercial slaughterhouses such as GMC’s.
243 Equivalent observations are available in respect of Ms McDonald-Eckersall. Prior to taking up her role with FTI, she lived and worked in the United Kingdom, at one stage for an organisation called Animal Rebellion. She is on record expressing pride in having been involved in the execution of large-scale acts of civil disobedience, including blockades against a fast-food operator, McDonalds, which disrupted its national supply chain and, so she understands, cost it “millions of dollars”. The evidence is as plain as day: like Mr Delforce, Ms McDonald-Eckersall is a committed activist who regards the invasion of the rights of others and the commission of illegal activity as necessary and justified in the pursuit of her cause.
244 Despite those unmistakeable truths, FTI maintains that the circumstances as they present in this matter ought not to warrant an award of exemplary damages. It is said that the award of general damages will provide the “sting” sufficient to deter similar conduct into the future. Further, FTI highlights that its trespasses were inflicted upon commercial, rather than residential, premises; that “…no material harm was done, [its] purpose was to pursue a political objective, and breaches of animal welfare standards have been exposed and remedied by the applicant”; and that the award of general damages will very likely exceed what might be imposed by way of pecuniary fine under the criminal law.
245 That last submission should be addressed first. Section 9(1)(e) of the Summary Offences Act 1966 (Vic) provides (and provided) as follows:
9 Wilful destruction, damage etc. of property
(1) Any person who—
…
(e) without express or implied authority given by the owner or occupier or given on behalf of the owner or occupier by a person authorised to give it or without any other lawful excuse, wilfully enters any private place…, unless for a legitimate purpose;
…
shall be guilty of an offence.
Penalty: 25 penalty units or imprisonment for six months.
…
246 Prior to July 2024, a “penalty unit” was equivalent to $192.31. Thus, taking each of the 17 individual trespasses (above, [44]-[45]) as attracting a separate pecuniary penalty, the maximum fine that could be imposed collectively upon those who effected them would total just less than $82,000.00 (17 multiplied by 25 multiplied by $192.31). Counsel for FTI supposed that it would be “…difficult to imagine that the respondent would be punished more than $10,000 through the criminal law”, which would be less than what he conceded the court should impose by way of general damages.
247 Naturally, FTI was alive to the prospect that the trespasses could attract a sanction in the form of imprisonment; a sanction that obviously could not be imposed upon it as a body corporate. By what was, with respect, an industrious but somewhat tortured application of the Fines Reform Act 2014 (Vic), it was conceded that a monetary recalculation of such a potential penalty yields something closer to $36,000.00 per offence, rather than the $4,807.75 for which the Summary Offences Act provides (or provided).
248 Again with respect, none of that is particularly instructive. The individuals who perfected the trespasses in this matter are not the ones against whom an award of exemplary damages is sought. Moreover, there is not the slightest possibility that FTI will—assuming even that it could—face criminal sanction under the Summary Offences Act. That that statute envisages relatively modest pecuniary fines for natural persons who commit a trespass may be accepted. But so to accept is not to doubt that the court might impose a substantially greater burden upon bodies corporate in whose name such criminality is knowingly undertaken. That is the task with which the court is presently confronted.
249 I have not the slightest hesitation in concluding that the circumstances in this matter call for a very substantial award of exemplary damages. The trespasses in which Mr Delforce and Ms McDonald-Eckersall (and at least one other person) engaged are among the most obvious examples of intentional wrongdoing that one might imagine. It was, as FTI properly accepts, wrongdoing that was undertaken with contumelious disregard for GMC’s property rights. FTI appears to have reckoned that the movement that it champions excuses it from a basic custom observed throughout the civilised world; that the virtue of its purpose and the “investigations” that it considers that that purpose demands somehow licence the deliberate, persistent, repeated and unrepentant invasion of the rights of others.
250 Of that notion it must unambiguously be disabused.
251 The evidence is very clear: GMC is but one in a long line of victims of FTI’s tortious conduct; a line to which it intends that other businesses should be added as it continues its ongoing campaign against people eating commercially-slaughtered meat. Other businesses have had—and yet others will very likely have—their premises invaded, presumably (as here) in the dead of night by masked vigilantes. They may have (or have had) holes drilled into buildings to accommodate hidden recording equipment, their operations exposed to potentially catastrophic biohazards and their staff unknowingly subjected to covert surveillance—not by accountable public servants acting with legitimate authority but by fanatical strangers who want them to lose their jobs.
252 The general damages that I will impose will not come remotely close to what the court should hope to achieve by way of deterrence of conduct that is very plainly obnoxious to public conscience. I accept that an award of exemplary damages is necessary in this matter to give FTI pause to consider whether it should prefer lawful means of persuasion over those that it employed against GMC. It may well be that that is beyond what the court can realistically hope to achieve; but it is, nonetheless, an aspiration that should inform the relief that should be granted.
9.4.3 What is an appropriate award?
253 In fashioning an award of exemplary damages, it seems to me that the court may be guided by the considerations that are relevant in the analogous realm of civil penalties, particularly those that the High Court identified in Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450 (“Pattinson”). The task is to identify a sum that “…strikes a reasonable balance between deterrence and oppressive severity”: Pattinson, 468 [41].
254 The starting point in that endeavour must be to recognise that FTI is a not-for-profit company limited by guarantee. Although not registered as such, it operates in much the same way as a charity. As at 30 June 2023, it had assets valued at $334,146.00 (up from $274,935.00 at the same point a year earlier). In the year to that date, it turned a profit (or, perhaps, a surplus) of $49,241.00 (improving upon a small loss, or deficit, of just under $3,000.00 the previous year). Almost all of its revenue assumes the form of donations or grants—some from what Mr Delforce described as “an international foundation”; and some from fund-raising within Australia. On any view, FTI’s is neither a large, nor cash- or asset-rich operation.
255 All the same, FTI has a proven and undoubted ability to raise funds when it needs them. Mr Delforce gave evidence (in early August 2024) that it had raised “close to $140,000 since late May” to cover legal expenses associated with this matter. Similarly, he told of efforts in 2022 to raise “somewhere in the vicinity of $150,000 in a short space of time” to cover expenses associated with other litigation, as well as “[o]ne other specific crowdfunding style campaign” by which FTI managed to raise over $100,000.00.
256 That, of course, is consistent with FTI’s charity-like status. It is easy to write FTI off as an organisation of extremists, as senior counsel for GMC occasionally sought to. Perhaps the description is apt; perhaps not. It doesn’t much matter: lest there be any doubt (and I should hope that there is none), the central political objectives to which FTI is committed are lawful, even if the means by which it pursues them occasionally are not. Its aims are no doubt supported by significant numbers of people, the vast majority of whom are unlikely to labour under the same arrogant and mistaken belief that appears to afflict Mr Delforce and Ms McDonald-Eckersall (namely, that their opinions matter more than the opinions of others, sufficiently to justify obvious and serious wrongdoing). The court should remain conscious of that reality when fashioning an award of exemplary damages.
257 I do not consider that GMC’s changes to the way in which animals are slaughtered at the Abattoir—made, as they were, in consequence of what FTI’s footage depicted—bears in any material way upon what an appropriate award of exemplary damages should look like. To say otherwise would be to recognise some justification for FTI’s invasion of GMC’s rights. There is no such justification. FTI is not a statutory body endowed with investigative powers; it is a private advocacy group. It is not authorised by law—or by good conscience or anything else—to invade the premises of others; no matter how well-founded might be the concerns that it hopes to investigate whilst doing so. The seriousness of its invasion of GMC’s rights in this matter is not ameliorated by what it discovered as it was invading them.
258 Perhaps looming largest for present purposes is the unrepentant nature of FTI’s conduct. This is not a case in which a respondent has expressed remorse for its conduct, or given an authentic indication that it does not require a deterrent incentive to refrain from repeating it. On the contrary, FTI has made clear that its law-breaking is a feature of its operations; and one from which it does not intend to retreat in the future. It seems to regard the contumacious disregard of the rights of others as a necessary and justified byproduct of its otherwise lawful advocacy.
259 That, on any view, is a consideration that tends to suggest that more, rather than less, might be necessary to achieve the deterrent effect to which an award of exemplary damages is to be directed. Plainly, a contrite tortfeasor requires less persuasion not to repeat unlawful conduct than does an unrepentant recidivist: see, in a related context, Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (The 250 East Terrace Case) (2023) 299 FCR 334, 354 [78] (Charlesworth, Snaden and Raper JJ).
260 Having regard to the considerations to which I have adverted, GMC submits that exemplary damages in the range of $200,000.00 to $300,000.00 would be appropriate. Having ambitiously submitted that there should be no award of exemplary damages, FTI’s alternative submission is that they “…should not exceed $10,000, to keep in proportion with the criminal law”.
261 There is a significant degree of ambit inherent in both of those contentions. I consider that exemplary damages set at or in excess of $200,000.00 would be crushing; and, in any event, would not strike “a reasonable balance between deterrence and oppressive severity”. Exemplary damages set at $10,000.00 would risk being mistaken for a judicial indulgence, to be purchased as though a pre-Reformation equivalent that absolves FTI of its unlawful conduct.
262 As has been noted, an award of exemplary damages should hurt. It should make 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. It 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. It should be more—indeed much more—than what a respondent might happily regard as the price of doing business.
263 I consider that an award of exemplary damages set at $100,000.00 is appropriate to achieve that end. An award in that sum is a significant imposition; one that, in the normal course, might represent several years’ lost profits or surpluses (accepting, as I do, that FTI might be able to minimise those effects through additional fund-raising). Looked at in conjunction with the award that I will make for general damages, the total sum is very large. It may well be larger still when the costs of the litigation (including any orders that might be made as to costs) are factored in. Regardless, I consider that it is appropriate.
Part 10: Disposition
264 There should be judgment in part for GMC. FTI should pay to GMC the sum of $30,000.00 in general damages, together with the sum of $100,000.00 in exemplary damages. It may be that interest should be payable on the former; but it shall not be payable on the latter: Federal Court of Australia Act 1976 (Cth), s 51A(3). The amended originating application should otherwise be dismissed (with the result that no injunctive or declaratory relief should issue). Unless agreed, it will likely be that further submissions will need to be made as to interest and costs, and the orders that I will make will reflect that reality.
265 I will make final orders to determine so much of the originating application as can be determined without further input from the parties. Those orders will be stayed until the expiry of the deadline for any appeal. Appreciating, as I do, the not insubstantial prospect that they will be the subject of further consideration, it might be necessary later to make further orders by way of stay to preserve the subject matter of any appeal. Given the indications given during the trial, I anticipate that any such orders would be the subject of agreement as between the parties; but, whether that is so or not, the parties shall have liberty to inform my chambers as required.
266 For the avoidance of doubt, it is my intention that the orders to which these reasons relate will finally dispose of the substantive controversy and that any appeal from them should, if lodged within the applicable deadline, be available as of right.
I certify that the preceding two hundred and sixty-six (266) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden. |
Associate:
