The Full bench of the Federal Court in The Game Meats Company of Australia Pty Ltd v Farm Transparency International Ltd [2025] FCAFC 104 upheld an appeal of the decision of Snaden J in The Game Meats Company of Australia v Farm Transparency International Ltd [2024] FCA 1455 where his owner held that video images taken by trespassers were not held on trust for the owner of the property. The balance of the primary judge’s decision was unaffected by the appeal. It is a very significant decision and important for those intellectual property and privacy practitioners.

FACTS

The appellant (GMC):

• operates a halal abattoir in Eurobin, Victoria, which slaughters and processes goats for export under a licence [3].
• operates from private premises (the Eurobin Premises) which:
  • was secured by means of a six-foot cyclone metal chain and barbed wire fence located around its perimeter.
  • was accessible  by an electronically-controlled iron gate, which is typically kept closed.
  • had signs outside of the gate displays signs, which relevantly stated “Restricted Area. Do Not Enter, Authorised Personnel Only”, and  “Stop. All Visitors Must Report to the Office” [3].

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

On seven occasions between 9 January and 13 April 2024, FTI’s employees or agents:

• gained access to the Eurobin Premises for the purposes of installing and later retrieving covert video recording equipment.
• entered the Eurobin Premises at night by crawling under a section of the perimeter fence without the knowledge or authority of GMC.
• were trespassing as agents of FTI and with its authority [5]

The equipment that FTI installed was used to obtain footage of activity within the Eurobin Premises. From that footage, FTI created a video of 13 minutes and 57 seconds in duration (the 14-minute Footage) [5].

On 3 May 2024, an employee of FTI sent the 14-minute Footage by way of complaint to the Department of Agriculture, Fisheries and Forestry (the Department) [6].

On 5 May 2024, an officer of the Department sent a copy of FTI’s complaint to GMC [6].

On 13 or 14 May 2024, FTI sent the 14-minute Footage to a local television news network (Channel Seven), which ran a story about the matters depicted in it on 17 May 2024, although it did not publish the footage itself [6].

On 17 May 2024, FTI uploaded the 14-minute Footage on its website, together with a media release and a number of still images obtained from the 14-minute Footage [6].

On 17 May 2024 GMC commenced the present proceedings [6].

An expedited final hearing was conducted on 5–9 August and 3 September 2024 and the Primary Judgment was delivered on 19 December 2024 [7].

The primary judge:

• awarded GMC damages in the sum of $130,000, comprising:
  • general damages of $30,000 and
  • exemplary damages of $100,000.
• held that GMC:
  • was not entitled to an injunction to restrain FTI from publishing any of the video footage that it obtained at the Eurobin Premises,
  •  was not entitled to the benefit of a constructive trust over the copyright in the 14-minute Footage [7].
• found that by sending the 14-minute Footage to Channel Seven and publishing it on the FTI website:
  • FTI sought to subject GMC to a measure of publicity that could only ever have been harmful to GMC,
  • those publications were made in pursuance of FTI’s objective to end all forms of business that involved causing harm to animals:
• held that the making of those publications was actuated by a desire to harm GMC’s business
• found that FTI’s purpose in seeking to publish the 14-minute Footage was to visit loss upon GMC and harm it commercially,
• described FTI’s intention as being to subject GMC to a “public shaming campaign”:
• found that it was more likely than not that, if it was able to publish the footage that it has obtained, FTI would use (or seek to use) the ensuing publicity to further its objectives, both in terms of its advocacy of “meat-free living” and its ongoing efforts to raise funds in support of its activities [8]
• refused to find that FTI held the video footage on constructive trust for GMC.

The issue of constructive trust was the core of the appeal by GMC.

DECISION

The Full Bench upheld the appeal.

Justices Burley and Horan concurred with Jackman J’s reasons.  

Jackman J reviewed the High Court decision of Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199 (ABC v Lenah) , specifically the judgments of Hayne and Gummow which stated:

• that where a cinematograph film is made in circumstances involving the invasion of the legal or equitable rights of the plaintiff or a breach of the obligations of the maker to the plaintiff 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.
• in those circumstances:
  • the maker may be regarded as a constructive trustee of an item of personal (albeit intangible) property, namely the copyright conferred by s 98 of the Copyright Act 1968 (Cth) (the Copyright Act). 
  • the plaintiff may obtain:
    • a declaration as to the subsistence of the trust and
    • a mandatory order requiring an assignment by the defendant of the legal (ie statutory) title to the intellectual property rights in question, noting that s 196(3) of the Copyright Act provides that an assignment of copyright does not have effect unless it is in writing signed by or on behalf of the assignor [9].
• there is no objection in legal principle to the imposition of a constructive trust over the relevant copyright which was created by means of unlawful conduct if the circumstances show that it is inequitable and against good conscience for the maker of the film to assert the copyright conferred by statute [10]. Jackman noted that the passage was referred to with apparent approval by Kiefel CJ, Bell and Keane JJ in Smethurst v Commissioner of the Australian Federal Police [2020] HCA 14; (2020) 272 CLR 177 (Smethurst) at [84] [10]
• there are authorities which discussed when copyright, although belonging to an author at law, was held on trust for another person such as  where it would be inequitable for the maker to claim copyright over the intellectual property.  Those cases involve pre-existing relationships between the parties, such as works created by a partnership, a director or employee of a company, or copyright works brought into existence or at the request of or on the instructions of an intended owner who has paid for the making of the work. 
• even when there is no pre-existing relationship it is possible a constructive trust may arise. The remedy was not imposed in that case as no claim was made by Lenah as to copyright over the cinematograph film (at [103]) [11]
• unconscionable behaviour does not operate wholly at large as has been stated by the High Court in:
  •  Garcia v National Australia Bank Limited [1998] HCA 48; (1998) 194 CLR 395 at [34], where Gaudron, McHugh, Gummow and Hayne JJ said that the statement that enforcement of the transaction would be “unconscionable” is to characterise the result rather than to identify the reasoning that leads to the application of that description.
  • Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd [2003] HCA 18; (2003) 214 CLR 51 at [43], where Gummow and Hayne JJ acknowledged that the uses of the terms “unconscionable” and “unconscientious” in diverse areas may have masked rather than illuminated the underlying principles at stake [16]. 

His Honour noted that in:

• Federal Commissioner of Taxation v United Aircraft Corp [1943] HCA 50; (1943) 68 CLR 525 (United Aircraft) at 546;
• Adamson v Kenworthy (1931) 49 RPC 57 (Adamson v Kenworthy) at 72-3; and
• Sterling Engineering Co Ltd v Patchett [1955] AC 534 (Sterling Engineering) at 544, 548, 

a constructive trust was imposed over patents obtained by licensees or employees to remedy legal wrongs, specifically breaches of their obligations to their licensors or employers and as such were cases of a pre-existing relationship between the parties [12].

His Honour referred to the line of authorities where:

• property was obtained by theft or fraud and equity ordinarily imposes a constructive trust on the thief or fraudulent recipient and cited TO’Connor J in Black v S Freedman & Co [1910] HCA 58; (1910) 12 CLR 105 (Black v Freedman) at 110, and approved by the Full Federal Court in Grimaldi v Chameleon Mining NL (No 2) [2012] FCAFC 6; (2012) 200 FCR 296 (Grimaldi) at [255] (Finn, Stone and Perram JJ) amongst others [17].
•  a constructive trust will be imposed where there is no pre-existing fiduciary relationship between the parties arises where there has been a mistaken payment and relevantly cited Wambo Coal Pty Ltd v Ariff [2007] NSWSC 589; (2007) 63 ACSR 429 at [32]–[44] (White J) and Shields v Westpac Banking Corporation [2008] NSWCA 268 at [16], [19] and [20] amongst others [19]
•  the Full Federal Court in Grimaldi at [256] found a constructive trust arises where:
  •  the property or interest sought to be recovered (or its traceable proceeds) is, or had been, the property of the claimants, and
  • a delinquent fiduciary or a third party participant in fiduciary or trust wrongdoing has derived the property on their own account as a result of their wrongdoing. 
•  constructive trust exists where there is no pre-existing fiduciary duty owed by the wrongdoer to the claimant, and the property in question was never owned by the claimant and cited Pallant v Morgan [1953] Ch 43 [24].  The “Pallant v Morgan equity” is a constructive trust being imposed where the circumstances in which the defendant obtains control of the property make it unconscionable for him or her thereafter to assert a beneficial interest in the property [25].  The High Court of Australia considered these principles in John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; (2010) 241 CLR 1 (French CJ, Gummow, Hayne, Heydon and Kiefel JJ) [26].

Jackman J said it was important to note that where there is no pre-existing fiduciary obligation which the defendant has undertaken to the plaintiff, but where a constructive trust is imposed in light of the nature of the defendant’s wrongdoing  must be approached on the basis that equitable principles, like common law principles, which have an inherent capacity to be adapted to different circumstances, particularly having regard to the foundations of equitable principles in notions of unconscionability [16].

Jackman stated that:

• FTI did not generate an expectation by its voluntary conduct that it would confer a benefit on the claimant by way of the transaction in question. The Pallant v Morgan line of cases demonstrates that there is no objection in principle to the imposition of a constructive trust merely because there was no pre-existing fiduciary relationship between the parties and the property in question was never owned by the claimant [28].
• the moral calibre of the wrongdoing here puts it on a similar moral plane to cases where a constructive trust is imposed on a fraudster or thief, or on the recipient of a payment which is known to be mistaken [28].
• while the conduct of FTI was not fraudulent, given that its purpose was not to deceive GMC  there are strong similarities between this case and a case of fraud or dishonesty as:
  • FTI engaged in a surreptitious intrusion onto and within GMC’s property to gain an advantage which was not lawfully available to it, and to cause detriment to GMC.
  • that in publishing the 14-minute Footage, FTI sought to harm GMC’s business by adverse publicity and to gain advantages for itself and its cause
  •  FTI’s conduct met the standards of conscious and contumelious disregard for GMC’s rights, or high-handed or deliberate conduct.

Jackman disagreed with the primary judge who held that that finding a constructive trust over the copyright in this case is too bold a step to be taken by a trial judge because:

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

FTI submitted that the Court should not adopt the reasoning in ABC v Lenah at [102] because:

•  copyright is not a positive right to do something that is otherwise prohibited, and is not a licence to publish, but is essentially a right to prevent others from doing various things.
• the mere act of publishing the footage in this case would not be the exercise of any right under the Copyright Act.
•  it has not asserted, and in light of its objectives, would never assert any right under the Copyright Act as against any person.
• GMC is not interested in the exclusive rights under the Copyright Act.
• it is exercising a liberty to publish which it claims is a liberty enjoyed by all persons in Australia [38].

Jackman J regarded FTI’s submissions as misconceived because:

• of the exclusive rights set out in s 86 of the Copyright Act, which include the exclusive right to authorise a person to do those acts: s 13(2). [39]
• FTI exercised each of those exclusive statutory rights, and intends to do so in the future while  GMC seeks to prevent FTI from doing so by way of GMC’s claim to be the beneficiary of a constructive trust over the copyright [40].
• the attempt to confine the nature of copyright in cinematograph films to the right to sue for infringement is contrary to:
  • the express language of s 86.
  • the way in which those statutory rights are routinely exercised by copyright owners in their day-to-day activities [40].
• its submission that a constructive trust should not be imposed for the benefit of GMC, in circumstances where GMC’s employees are also likely to suffer from publication of the 14-minute Footage, such as by way of embarrassment, distress and public odium was made where there are no findings or evidence to the effect that it intended to cause any harm to those employees.  FTI has not committed any legally recognised wrong against those employees [41]

Jackman J found, at [42],  that:

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

The court orders giving effect to the above decision are, relevantly:

1. 5. The respondent be permanently restrained from publishing (other than to the Commonwealth Department of Agriculture, Fisheries and Forestry) any of the images (and copies thereof) obtained or captured by the respondent between 9 January 2024 and 13 April 2024 at the Premises (including the 14-minute Footage as defined in the reasons for judgment).
   6. Within 7 days, the respondent execute an assignment in writing to the appellant of the copyright in the images (and copies thereof) which the respondent obtained or captured between 9 January 2024 and 13 April 2024 at the Premises, and in the event of any default, the Registrar be directed to execute such a transfer on behalf of the respondent under r 1.37 of the Federal Court Rules 2011 (Cth).
   7. Within 7 days, the respondent permanently delete all images of the appellant’s business undertaking in its possession or control, obtained or captured from the cameras placed in the Premises by the persons who entered the Premises on behalf of the respondent between 9 January 2024 and 13 April 2024.
   8. Within 14 days, the respondent file with the Court an affidavit attesting to:

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

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

 

ISSUE

Finally, after 24 years, Gummow and Haynes obiter commentary as to the right to claim constructive trust of video obtained during the conduct of an unlawful action has become law.  It is very important for those practising in privacy or other torts alleging illegal conduct.