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Thank you for providing your email. This allows us to record the number of downloads per resource, and determine its relative reach. Want to receive all the latest Voiceless news plus a discount code for something special? By filling out this form you agree that you are joining Voiceless's mailing list in accordance with our privacy policy. Ibid n 1, Bartnicki v Vopper US Ibid n 1, from Ibid 1, That being so, it would be wrong to deny the protection of a tort of invasion of privacy to corporations solely because they are corporations.
The refusal of three members of the High Court in Lenah to accept that any new tort of invasion of privacy might extend to corporations is one reason why such a tort should be introduced, if at all, by legislative decision rather than judicial decree. Judges sometimes give way to the temptation to lay down broad and sweeping rules to which everyone is then committed and which cannot easily be changed unless the legislature can be persuaded to step in when they prove to be misguided or unfair.
Of course, the legislature can make mistakes as well, but as well as being democratically legitimate, and thus susceptible to lobbying by those unfairly treated, it is generally freer with amendments and finetuning than are judges to admit that they got it wrong. Of course, as only three judges supported it, the view that corporations are not entitled to privacy is not binding on any future court.
In addition, it is not binding on the legislature. If the legislature sees fit to introduce a new tort of invasion of privacy, [] it is hoped that the mistakes made by Gummow and Hayne JJ will be avoided.
In other respects, Lenah is a most unsatisfactory case, not only because it leaves unanswered the question of whether a new tort of privacy is created, but, chiefly, because it ignores an obvious opportunity to extend the law of breach of confidence in a small but important way and without creating, by judicial decree, a full-blown right to privacy. It must be hoped that future courts considering issues of this sort do a more thorough and well-researched job.
In addition, the Court had been invited by LGM to do more than judges can be expected to do in all but the rarest of cases: create a new tort where there was none before. An interlocutory injunction aims to maintain the status quo until the rights of the parties can be determined at the hearing of the case. Under s 11 of the Supreme Court Civil Procedure Act Tas , the Supreme Court of Tasmania had the power to grant an injunction to preserve the subject-matter of the dispute and to prevent the destruction of the rights claimed by the respondent so that the claim in Lenah could be heard.
Essentially the High Court judgments involving the interlocutory injunction can be divided into three groups:. Fundamentally, Lenah was a very conservative decision regarding the use of the interlocutory injunction. There are six main, frequently inter-related, comments to be made regarding the approach adopted by the majority. The first comment is that an extremely strict reading of the ubi jus ibi remedium [] maxim was applied.
As Gleeson CJ stated:. For Gummow and Hayne JJ, the scope of legal and equitable rights for which injunctive remedy is available is broadening. However, for their Honours the basic principle. The other members of the Court did not agree with this requirement. For example, Kirby J held that there were four reasons why there should be no such requirement, [] namely: the nature of the statutory power, [] the powers of courts, [] the equitable character of the relief sought, [] and interlocutory realities.
In addition, another reason why the cause of action requirement of Gleeson CJ, Gaudron, Gummow and Hayne JJ is open to criticism is that it fails to deal with quia timet injunctions, for which no cause of action yet exists despite the courts being prepared to grant such injunctions. Also, it is very static and circular [] for the Court to decide that no legal obligation had been breached, and that therefore no remedy was available, and there was no legal obligation because there was no remedy available.
In the US, the object of the temporary injunction is not to determine contested rights, but rather to prevent a threatened wrong or injury to property or rights until the issues or equities can be determined at a full hearing. Even if, contrary to what has been argued previously, LGM could not establish a prima facie case with the probability that at the trial of the action the plaintiff would be entitled to relief, it certainly could have satisfied the Court that there was a serious question to be tried.
All that is required to establish a serious question to be tried is that the claim be neither frivolous nor vexatious, [] and there was nothing in Lenah to indicate that the claim was frivolous or vexatious. This is true even though the decision must involve some assessment of the merits of the claim. Another problem with the majority approach is that there is ample authority for an interlocutory injunction being granted where the law is extremely uncertain.
Also in American Cyanamid , Lord Diplock noted:. It would be natural to feel some sympathy for their Honours if a complex case meant that there was some automatic right to an interlocutory injunction. However, this is to forget two things. This undertaking serves not only to protect the defendant from any harm but, as recognised by Jessel MR, it also protects the court from improper and indiscriminate applications for such orders.
This is a vital second stage. It is important to remember that at this stage a major disagreement between Kirby and Callinan JJ is evident.
Other jurisdictions have adopted differing approaches to the issue of interlocutory injunctions. According to Dobbs, there are three approaches to the manner in which factors are taken into account when issuing an interlocutory injunction in the US. The first approach utilises unstructured factors, including: 1 whether the applicant has displayed a strong or substantial probability of success on the merits; 2 whether the applicant has shown irreparable harm to itself; 3 whether the preliminary injunction could harm third parties; and 4 whether the public interest would be served by issuing the preliminary injunction.
Under this system, a plaintiff might be given a preliminary injunction even if the judge thought that the plaintiff had a less than 50 per cent chance of success on the merits if the plaintiff had an enormous irreparable loss at stake while the defendant had little or none. Basically their Honours were deciding whether the cause of action existed. They decided that as there was no cause of action, there could be no interlocutory injunction. But this is not what an appellate court should have done.
Arguably, the cause of action did not exist when the court of first instance considered the matter. However, the issue before the High Court was whether an interlocutory injunction should have been awarded.
Interlocutory relief is obviously different in nature to final relief. It is interesting to speculate why the Beecham prima facie test was resurrected by their Honours.
Hammond has suggested that the prima facie test was created to unburden an overloaded civil litigation system. The return of a version of the prima facie test means that the role of interlocutory relief is minimised. This is a major development of the law, as it means the recasting of a whole facet of the legal system.
In the US, an interlocutory injunction is preliminary to a hearing on the merits. Its purpose is to prevent a threatened wrong or injury to property or rights until the matter can be determined at the full hearing:.
The characteristics of an interlocutory injunction in Canada are the speed of application they can be obtained at any time of the day , the right to apply ex parte and the possibility of the grant in advance of any final determination of the dispute. This change, said the courts, reflects the need to protect human autonomy and dignity - "the right to control the dissemination of information about one's private life" Campbell.
This expansion of the concept of breach of confidence beyond pre-existing relationships of confidentiality such as employment and trade secret situations and has allowed UK courts to apply the doctrine to one-off situations of publications of personal information. The obligation of confidence extends to a wider range of people, and is defined by the reference to the circumstances, not a relationship. In the present case, Justice Hampel found three factors which imported an obligation of confidence into the circumstances surrounding the relevant publications:.
Justice Hampel found that the information regarding the sexual assault was clearly private information. ABC only became aware of this information from the remarks of the judge during YZ's sentencing. The effect of section 4 1A of the Judicial Proceedings Reports Act was again to give the information a private character.
Justice Hampel found that each factor alone created an obligation of confidence but the three in combination created "powerful circumstances importing an obligation of confidence" []. Ms Doe therefore had a reasonable expectation of privacy in relation to this information.
Justice Hampel found that in the circumstances Ms Doe's conduct in revealing the relevant information to a number of people close to her was not inconsistent with this expectation of confidentiality. The publication by ABC was therefore in breach of the obligation of confidence which it owed to Ms Doe. Justice Hampel also found that the publication of Ms Doe's personal information constituted a tortious action of invasion of privacy by the ABC. She reviewed the UK cases and noted that the UK had rejected the development of such a cause of action see Wainwright v Home Office [] 3 WAR , instead protecting privacy by the expansion of the doctrine of breach of confidence.
After examining the comments made about a tort of the invasion of privacy in Lenah Game Meats and the subsequent Australian cases of Grosse v Purvis and Giller v Procopets, Justice Hampel took a different approach to the UK courts.
She took what she describes as the:. Justice Hampel decided to take a similar approach to that taken in Grosse v Purvis.
Justice Hampel declined to state what the limits of the doctrine were or define what defences would be available. However, four of the six Judges were inclined to the view that, if a new action for the invasion of privacy was developed in Australian law, it should be limited to protection of the privacy of a natural person as opposed to a company or similar body. As a result of the Lenah case, it was thought that most video recordings were legal with or without consent save for the fact that it is generally illegal to film a person in public where there is an expectation of privacy and filming people in an intimate context is illegal, unless express permission is granted.
The High Court had reason to again consider the legality of covert surveillance, and the potential admissibility of the footage in subsequent court proceedings, in its recent decision of Kadir. The recordings were made by a photographer that was acting on behalf of, and paid by, Animals Australia. Kadir wished to exclude the seven video surveillance recordings from the evidence available to the prosecution at his trial.
Kadir sought to rely on section 1 of the Evidence Act NSW , which relevantly holds that evidence that is obtained improperly or in contravention of an Australian law, is not to be admitted unless on balance it is desirable to be admitted. The High Court determined that there had been repeated, deliberate breaches of the Surveillance Device Act NSW without any attempt having been made to approach the authorities namely, the RSPCA or the police to conduct a lawful investigation.
The Court stated that there is a balancing act in relation to the desirable goal of convicting wrongdoers against the undesirable effect of giving court approval or encouragement to the unlawful conduct of bodies that are not subject to any form of legislative or executive oversight.
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