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]. 

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In Re Australian Builders Group Pty Ltd [2022] VSC 254 the Supreme Court, per Hetyey AsJ, set aside a statutory demand based on a genuine dispute based on the construction of an agreement and default notice but also by a claim of duress.

FACTS

On or around 1 June 2017 Mind, a not-for-profit organisation providing community-managed specialist mental health services entered into an agreement with Australian Win Win Investment Pty Ltd (‘the landlord’) to lease a property located at 691 High Street, Thornbury, Victoria (‘the property’ and ‘the lease’ respectively) for an amount of $130,000 per annum (approximately $10,833.33 per calendar month) [1].

In early May 2018, Mind and ABG entered into a sublease agreement for the property (‘the sublease’). The parties to the sublease agreed that ABG would pay a reduced amount of rent of $121,000 per annum (approximately $10,083.33 per calendar month) [2].

From February 2019, ABG began to fall into arrears & by 15 April 2021, it owed Mind approximately eight months’ rent, totalling $82,279.92 (‘the arrears’). Pursuant to a repayment deed, ABG agreed to make regular payments of the arrears of $2,500 plus GST, together with interest, per week.

Regarding the repayment Read the rest of this entry »

The Federal Court, per Halley J, set aside a statutory demand in CBS Commercial Canberra Pty Ltd v Axis Commercial (ACT) Pty Ltd, in the matter of CBS Commercial Canberra Pty Ltd [2022] FCA 544 in finding that an offsetting claim constitutes a genuine dispute. It is a very good decision setting out the complications of offsetting claims arising from building contracts relied upon in setting aside a statutory demand which is based on a certificate and judgment obtained under the Security of Payments Act.

FACTS

CBS engaged Axis as a sub-contractor to undertake work at a building site located in Gungahlin in the Australian Capital Territory [12].

The chronological events Read the rest of this entry »

The Federal Court, per Markovic, set aside a statutory demand in Print Mail Logistics Limited v Warratah Investments Pty Ltd [2018] FCA 1618.  It was a very hard fought fight which involved a complex factual situation and difficult legal issues.  Unusually it involved a cross examination of a deponent.  The demand was set aside because of a technical error by the respondent.

FACTS

The parties  were:

• Nigel Benjamin Elias (“Elias”),  director of Print Mail and the sole director of Print Mail Logistics (International) Pty Ltd (PMLI).
• Jennifer Joan Hutson (“Hutson”),  director and secretary of Warratah and sole director of Wellington Capital Pty Ltd (now called Southland Stokers Pty Ltd) (Wellington);
• Mark John Halle (“Halle”), director of Warratah and the chief financial officer of Wellington; and
• Wellcap Holdings Pty Ltd the ultimate holding company of Warratah and  sole shareholder of Wellington [4].

On 5 February 2013 PMLI and MMB entered into a commercial facilities agreement with  MMB makiung a facility of $312,000 available to PMLI to assist with the purchase of a property in 11 McRorie Court, Cambridge, Tasmania (Property) [5].  On 28 October 2013  PMLI and MMB entered into a commercial facilities agreement pursuant to Read the rest of this entry »

The Victorian Supreme Court, per Matthews JR, considered an application to set aside a statutory demand in  Jolimont Heights Pty Ltd v Ryan [2018] VSC 678.

FACTS

Jolimont Heights Pty Ltd (‘JH’), made an application pursuant to s 459G of the Corporations Act 2001 (Cth) (‘Act’) by originating process dated 9 July 2018 to set aside a statutory demand dated 19 June 2018 (‘Statutory Demand’)  [1].

The application was made under s 459H &/or s 459J on the basis:

• there was a genuine dispute as to the existence of the debt
• due to some other reason, being that the Statutory Demand was defective  [2].

In support of its application, JH relied on Read the rest of this entry »

In Re Mossgreen Pty Ltd (in liquidation) [2018] VSC 230 Robson J considered the application of the Australian Consumer Law as against the operation of the Corporations Act and powers of liquidators.

FACTS

The auction house operating through the entity Mossgreen Pty Ltd (in liq) (‘Mossgreen’) went into liquidation on 4 May 2018. Administrators had been appointed on 21 December 2017 [1].

As an auctioneer, Mossgreen held a large quantity of goods (the ‘consigned goods’) belonging to other people (the ‘consignors’) described as being:

(a) goods delivered to it to be auctioned, but which had not yet been auctioned;

(b) goods delivered for auction, but which had failed to sell and which were awaiting collection by their owners; and

(c) goods which, although successfully sold at auction, had not been collected by the successful bidders [2].

which were stored in  three warehouses [3].

Sobraz Pty Ltd (‘Sobraz’), the plaintiff, is the landlord of one of the warehouses, situated at 1 Torteval Place, Clayton [3].

The administrators’ stocktake of the goods cost in excess of $1 million [4]. The administrators sought to levy each consignor with the sum of $353.20 per lot as a condition for releasing the lot to the consignor, asserting an equitable lien [5]. The administrators application for Read the rest of this entry »

Justice Kennedy in In the Matter of Innovateq Pty Ltd [2018] VSC 124 considered an application under section 237 of the Corporations Act for leave to commence proceedings in a derivative action.  Judgments regarding leave applications are relatively uncommon.

FACTS

The proceeding involved two applications:

• leave to the plaintiff pursuant to s 237 of the Corporations Act 2001 (Cth) (Act) to commence court proceedings in the name of Innovateq Pty Ltd (ACN 132 372 242) (Company) against Mr Daniel Phillips (a former employee) and two companies associated with him, Certeq Pty Ltd and Certeq NZ Pty Ltd (Certeq) (Leave Application); and
• for an order that the Company be wound up (Winding Up Application).

The Company, in its capacity as trustee for the Read the rest of this entry »

In Medussa Enterprises Pty Ltd v Nationwide Concrete Pumping Pty Ltd [2017] VSC 275  the Victorian Supreme Court, per Gardiner AsJ, dismissed an application to set aside a staututory demand on the basis that there was no genuine dispute.

FACTS

Medusa claimed Read the rest of this entry »

In Complete Equipment Solutions Pty Ltd v Tesab Engineering Limited (A Company Registered in the United Kingdom, Company No. NI026214) [2016] VSC 253  Associate Justice Randall considered the question of service. This is not a common issue in modern day jurisprudence relating to statutory demands. In this case a failure to comply with the service requirements resulted in the plaintiff’s application being dismissed.

FACTS

The plaintiff, by originating process dated 9 November 2015,  made an application under s 459G of the Corporations Act 2001 (Cth) to set aside a statutory demand dated 14 October 2015 [1]. The court noted, with some annoyance, that the Read the rest of this entry »

Yesterday the Government introduced and read for a first and second time the Health Legislation Amendment (eHealth) Bill 2015.

The Bill is a 126 page behemoth which will warrant close scrutiny.  Briefly it is worth noting some notable features of the Bill:

• Part 3 provides for the collection, use and disclosure of the healthcare identifiers, identifying information and other information. The simplified outline describes the process as:

Read the rest of this entry »