Supreme Court New South Wales

• Medium Neutral Citation: WINDRIDGE FARM PTY LIMITED v GRASSI & ORS [2011] NSWSC 196
• Hearing dates: 6, 7, 8 and 9 September 2010
• Decision date: 28 March 2011
• Jurisdiction: Common Law
• Before: Hall J

Decision

The plaintiff is entitled to an order and judgment for damages as follows:-

(1) General damages: $15,000.00

(2) Special damages, namely, veterinary costs: $1,625.45

• Catchwords: TORTS - trespass to property - defendants trespassed on plaintiff's farm at request of an office of Animal Liberation NSW to investigate conditions in which animals kept - video and photographs taken during the trespass - authorised only for use as material for a veterinarian report and police investigation - no adverse police findings against farm - entry unlawful; INTELLECTUAL PROPERTY - whether copyright subsists in victim over photographs and video film taken during the course of unlawful trespass - defendants' evidence was that there was no intention to publish or profit from or damage plaintiff's reputation through the material - premises mentioned in media by third party Animal Liberation NSW - whether copyright held on constructive trust for plaintiff - whether defendants can be ordered to deliver up film and negatives - whether principle that a trespasser should not enjoy the "fruits of their tort" applied - no intention by defendants to profit from film - no commercial loss or loss of goodwill by plaintiff - photograph and video had no intrinsic value - no basis for a constructive trust; INJUNCTIVE RELIEF - whether court could restrain trespass to the video/photographic "products" obtained during a trespass to land - unconscionability as a ground of relief in equity - whether breach of confidence - video film and photographs not in the nature of confidential information - common law damages adequate remedy - injunctive relief refused; DAMAGES - claim for general damages, special damages, aggravated damages and exemplary damages - no proof of loss or damage to property - nominal damages inappropriate - general damages vindicates plaintiff's right to exclusive occupation award of $15,000 general damages - exemplary and aggravated damages unnecessary in lieu of sabotage or aggravating circumstances - special damages awarded for costs arising from the natural and probable consequences of the trespass - cost of veterinary services check allowed
• Legislation Cited: Copyright Act 1968 (Cth); Prevention of Cruelty to Animals Act 1979 (NSW)
• Cases Cited: ABC v Comalco (1986) 12 FCR 510; ABC v Lenah Game Meats Pty Limited (2001) 208 CLR 199; Aktas v Westpac [2009] NSWCA 9; Andrews v John Fairfax & Sons Limited (1980) 2 NSWLR 225; Black v S Freedman & Co (1910) 12 CLR 105; David Syme & Co Limited v Mather [1977] VR 516; Colombia Pictures Industries Inc v Robinson [1987] 87 Ch 38; Donnelly v Amalgamated Television Services Pty Limited (1998) 45 NSWLR 570; Finesky Holdings Pty Limited v Minister for Transport for Western Australia [2001] WASC 87; Finesky Holdings Pty Limited v Minister for Transport for Western Australia [2002] WASCA 206; Gray v Motor Accident Commission (1998) 196 CLR 1; Healing (Sales) Pty Limited v Inglis Electrix Pty Limited (1968) 121 CLR 584; Lincoln Hunt Australia Pty Limited v Willesee (1986) 4 NSWLR 457; Plenty v Dillon (1990-1991) 171 CLR 635; Port Stephens Shire Council v Tellamist Pty Limited [2004] NSWCA 353; Robb Evans of Rob Evans & Associates v European Bank Limited (2004) 61 NSWLR 75; Roberts v Rodier [2006] NSWSC 282; State of NSW v Ibbett (2005) 65 NSWLR 168; State of NSW v Ibbett (2006) 229 CLR 638; TCN Channel 9 Pty Limited v Anning (2002) 54 NSWLR 333; Uren v John Fairfax & Sons Pty Limited (1966) 117 CLR 118; Vella v Australia & New Zealand Banking Group Limited [2009] NSWSC 123; Wormald v Cole [1954] 1 QB 614; XL Petroleum (NS) Pty Limited v Caltex Oil (Aust) Pty Limited (1985) 155 CLR 448
• Texts Cited: Meagher, Gummow and Lehane's Equity: Doctrines and Remedies (4th ed) (2002)
• Category: Principal judgment
• Parties: WINDRIDGE FARM PTY LIMITED v Mauro GRASSI & ORS
• Representation: P: J R Clarke; D: M A Ashhurst SC/S O'Brien; P: Blake Dawson; D: Galbally & O'Bryan
• File Number(s): 2008/282852

Judgment

1 HIS HONOUR : The plaintiff company is the operator of the Wonga Piggery located on approximately 560 hectares of land on Moppity Road at Young, New South Wales. At all material times it had the exclusive possession of that property.

2 The plaintiff brings these proceedings against three defendants who it claimed entered and trespassed upon the plaintiff's property at night and took photographs and recorded video film in a certain part of the piggery. The trespass, which was admitted by the defendants, occurred on 9 July 2006. The plaintiff complains that the defendant obtained copyright "... in violation of the plaintiff's entitlement to exclusive possession of (its) property": Third Further Amended Statement of Claim, paragraph 5B.

3 There are two matters subjacent to the plaintiff's claim for relief. The first is the fact of the defendants' unlawful entry upon the plaintiff's property. The second is that, whilst unlawfully upon the property, the defendants, without authorisation or permission from the plaintiff, took photographs and video film of the premises and certain aspects of the operations conducted thereon. The video film was subsequently passed on to a Mr Mark Pearson, an Executive Director of Animal Liberation (NSW).

4 The plaintiff maintains that the photographs and the video film were published to persons acting on behalf of Animal Liberation "... for the purpose of alleging that the plaintiff was failing to comply with appropriate standards of maintaining the animals at the piggery and/or for operating the piggery" : Third Amended Statement of Claim, paragraph 6.

5 The plaintiff claims certain orders by way of equitable relief as well as an award of common law damages in respect of the trespass on 9 July 2006.

6 The proceedings were commenced by Summons and on 20 March 2008, the plaintiff filed the original Statement of Claim in this Court on 31 January 2008, which was subsequently amended on a number of occasions.

Facts

7 The primary facts in this matter are not in dispute. They are:-

(1) The plaintiff at all material times owned and operated the Wonga Piggery.

(2) At all material times, the company had exclusive possession of the property.

(3) On the night of the 9 July 2006, the defendants, without the permission of the plaintiff, entered upon the plaintiff's property and recorded video film and took a number of photographic images of a specific area of the piggery. The video film and the images could not have been obtained but for the defendants' trespass.

(4) On 10 July 2006, the defendants gave the video film taken at the piggery to Mr Pearson of Animal Liberation so that he could initiate an investigation. The investigation to be instigated by Mr Pearson involved the supply of the video film to a veterinary surgeon for an opinion on the conditions in which certain sows were maintained and, if considered appropriate, to send the veterinarian report and film to the police to enable them to investigate conditions in which the animals were being kept.

(5) Approximately two months after the trespass, Mr Pearson made a number of statements when interviewed by the media. In some interviews, he impliedly claimed that the plaintiff was breaching the law. On 12 September 2006, in a further interview, Mr Pearson expressly referred to investigations of the plaintiff's piggery.

(6) Police undertook investigations. However, neither police nor the RSPCA took any action against the plaintiff.

8 Although the trespass occurred on 9 July 2006, the plaintiff did not become aware of the fact that it had taken place until approximately two months after the event. On 4 September 2006, police contacted the plaintiff and stated that they had received the video film from Mr Pearson which appeared to depict aspects of the Wonga Piggery. Representatives of the plaintiff viewed the film and confirmed that that was the case. It was only then that the plaintiff realised that a trespass had been committed on its property.

9 There were two aspects of the police investigation. First, an investigation into claims by Mr Pearson that the plaintiff was, in some way, mistreating livestock, namely pigs, on the farm. Second, an investigation into allegations that a trespass had been committed on the plaintiff's property.

10 Police sought information from Mr Pearson to establish the identity of the persons who had trespassed onto the property, but he declined to disclose their names. It appears that the police then determined that they were unable to take the matter any further.

11 The plaintiff applied and obtained orders for preliminary discovery against Mr Pearson. In due course, he disclosed the identity of two persons who had entered the plaintiff's property, namely, the first and second defendants.

12 The plaintiff commenced the present proceedings against the first two defendants and later joined the third defendant after it had been confirmed that there was a third person present.

13 Mr Pearson swore an affidavit on 10 May 2010. He had been employed as an Executive Director of Animal Liberation since 2004 prior to which he had been President for 11 years.

14 He gave an account of having contacted Ms Simpson and Mr Grassi in separate telephone conversations asking them to document conditions of the piggery, particularly the size of sow stalls. He said that Animal Liberation had received some information that pigs were being kept in cramped conditions. He said that he told each of them that he would give any documentation gathered by them to a veterinarian to prepare a report and then would pass the report and documentation on to the police to investigate possible breaches of the Prevention of Cruelty to Animals Act 1979 (NSW).

15 He said that on or about 10 July 2006, he received video tapes from Mr Grassi and Ms Simpson. Exhibited to his affidavit was a copy of the DVD film (Exhibit MP-2). Having viewed the film, he gave a copy of what he described as the edited film to a veterinarian, Dr Mark Simpson, and asked him to provide a report.

16 On 21 August 2006, Mr Pearson said he received an email from Dr Simpson attaching a report. Mr Pearson said that he then telephoned Young Police Service and spoke to Senior Detective Ian Thompson. He asked him to investigate the piggery for possible breaches of the abovementioned Act.

17 Mr Pearson said on the following day, Senior Detective Thompson contacted him and requested a DVD copy of the film and Dr Simpson's report. In due course, Mr Pearson gave him a copy of the edited film and of Dr Simpson's report.

18 Mr Pearson said that, on or about 7 September 2006 he received a phone call from a person who identified himself as an ABC Radio reporter asking him about animal welfare issues at the piggery.

19 The first defendant, Mr Grassi, gave evidence that in early July 2006, he had a telephone conversation with Mr Pearson in which he was informed by Mr Pearson that certain information had been obtained concerning pigs kept at the Wonga Piggery. Mr Pearson asked him whether he would enter the piggery and document the conditions there, particularly, the size of sow stalls. Mr Grassi said that in the telephone conversation, Mr Pearson said to him, inter alia:-

"I'll give any documentation you gather to a veterinarian to prepare a report, and then pass the report and the documentation onto the police to investigate possible breaches of the Prevention of Cruelty to Animals Act."

20 Mr Grassi said that he agreed. He said he attended the Wonga Piggery with the second defendant, Diana Simpson, and the third defendant, Tully James on 9 July 2006.

21 Mr Grassi said that he did not have any physical contact with any pigs before attending the property. He said that before entering it, he went through a disinfecting procedure whereby he washed his footwear in a disinfectant bath to avoid the chance of spreading any communicable diseases to the pigs at the piggery. He said that he saw both the second defendant, Diana Simpson, and the third defendant, Tully James, undertake the same disinfecting procedure.

22 In cross-examination, Mr Grassi said that there was no intention to seek publicity concerning the plaintiff's premises. He agreed that he did not tell Mr Pearson how the video film was to be used or make any statement restricting his use of the video film. However, he maintained that he did not believe that, when he handed the film to Mr Pearson, it would be used for publicity purposes. He stated (t.144):-

"... I didn't think that it had anything to do with public exposure."

23 Mr Grassi said that he no longer had the video film and agreed that he was not prepared to have the video film given to the plaintiff and agreed that was by reason of "the principle" , namely, that it belonged to him. He maintained that the exercise of filming the plaintiff's premises and obtaining the film was not motivated by causing harm to the plaintiff's reputation, stating (t.147):-

"... We never had nothing to do with the reputation of Windridge at all. The whole thing had nothing to do with it."

24 He added, "... The main concern that we had was the animals" (t.148).

25 A little later in cross-examination it was put to him (t.150):-

Q. Is it now a possibility that you will use the video or the photos to draw public attention to the concerns of Animal Liberation?

A. No.

Q. There's no possible chance that you will utilise the video in any way to assist in the aims of Animal Liberation; is that right?

A. That I took, you mean?

Q. Yes.

A. No, I don't have it.

...

Q. What is your answer?

A. No."

26 A little later in cross-examination, he stated that he did not intend to request Mr Pearson to return the video, even though it belonged to Mr Grassi. When it was put to him that he was happy for Mr Pearson to use it for whatever purposes he wanted, Mr Grassi responded, "That's not the case. That's not necessarily true" (t.150).

27 He was later asked (t.150-151):-

"Q. If I told you that he considers it possible that he might make some use of it in the future to draw attention to the issue, public attention, or to educate the public, his words, you would allow that, correct?

A. No, I wouldn't.

Q. You would absolutely tell him not to do that in any way?

A. That's right."

28 The evidence of the defendants was to the effect that, at the time they entered the piggery, it was dark and that none of them saw any quarantine signs or other warnings displayed at the piggery. When they reached a barn or shed, they found the door to it was open. They entered it and Mr Grassi said that he proceeded to record video footage of the conditions in which the pigs were kept including the size of the sow stalls and of the apparent condition of the pigs.

29 Ms James, the third defendant, stated that she was not a member of Animal Liberation at the time of the trespass and has not been a member since that time.

30 Ms James said that she started photographing the pigs and the conditions in which they were kept. She took 47 photographs in total. She said that she did not break any item of property at the piggery and did not see either Mr Grassi or Ms Simpson cause any damage to the property. She subsequently transferred the photographs from her digital camera onto her laptop computer.

31 Ms James said that when Mr Grassi spoke to her in early July 2006, he said to her that documentation obtained concerning the treatment of the pigs would be used for the purpose of Mr Pearson arranging for a veterinarian's report which would be supplied to the police to investigate possible breaches of the Prevention of Cruelty to Animals Act . She stated in cross-examination that she would have been surprised if Animal Liberation had sought to make some other use of the material. It was put to her (t.115):-

"Q. Is it your view that you only authorised it to ever be used for that one specific purpose?

A. Yes."

32 Ms James said that the only photographs she supplied to Animal Liberation were those sent in 2006 which were used in an article that she wrote.

33 She later agreed in cross-examination that when she finally handed over the photographs, they were not being supplied for the purpose of the use by a veterinarian or by police. She re-affirmed that the photographs supplied in 2006, three in all, were only supplied for the purposes of the publication of her article.

34 Ms James' evidence was that, despite attending the Wonga Piggery and taking the photographs, she did not given them or any copies of them to Mr Grassi nor did she ever give them or copies of them to Mr Pearson. She said that subsequently, on or about 29 September 2006, she wrote an article which was published in the 2006 edition of Animal Liberation Release Magazine . A copy of that article was annexed to her affidavit (Annexure A). There was an article in the Release Magazine in relation to pig farming but she said that she did not write the article and she did not consider that it in any way related to the events that occurred at the Wonga Piggery on or about 9 July 2006.

35 Ms James stated that, whilst the article referred to "an unnamed pig producer at Young, NSW" , she did not specifically mention the plaintiff's name. There was no precise description of the location of the piggery referred to in the article. Ms James stated (paragraph 19):-

"It was never my intention in entering the Wonga Piggery and in making the Photographs, to cause any harm to the commercial reputation of the plaintiff."

36 Ms James further said that approximately 12 months prior to swearing her affidavit on 10 May 2010, her laptop computer on which the photographs were stored was infected with a computer virus. The result has been that since that time she said she has been unable to access the photographs or the copy of the article she wrote.

37 In cross-examination, Ms James said that she had moved house "a lot" and did not know where the disc containing the photographs was. She was asked (t.121):-

"Q. You don't know if you have still got a disc of the photographs?

A. Yes.

Q. A minute ago you said you don't have the photographs?

A. I don't know if I do or if I don't.

Q. You have no idea?

A. No.

Q. But at this point, do you suspect that a disc was provided to your legal representatives of the photographs?

A. Yes ..."

38 Mr Grassi's evidence was that, when he gave the video film to Mr Pearson:-

"... I intended it to be used for the purpose of obtaining a report from a veterinarian concerning the welfare of the pigs, and for that report and the Film to then be given to police to investigate conditions at the Wonga piggery in respect of possible breaches of the Prevention of Cruelty to Animals Act (NSW)."

39 Mr Grassi also stated that it was never his intention in entering the Wonga Piggery and in making and distributing the film to Animal Liberation to cause harm to the commercial reputation of the plaintiff. He said it was always his intention to assist police to investigate what he had been informed were possible breaches of the abovementioned Act. Further, his evidence was that he had never authorised the publication, copying or distribution of the video film to any person or its use for any purpose other than that for which he referred in his affidavit, namely, in the investigation of possible breaches. Further, he said that he had never contacted the media or made any public statements to the media concerning either the video film or the treatment of pigs at the Wonga Piggery.

40 Ms Diana Simpson, the second defendant, in her affidavit sworn 7 May 2010, stated that she too recorded some video footage of the conditions in which the pigs were being kept and the size of the sow stalls. She said that she went through a disinfecting procedure whereby she washed her footwear in a disinfectant bath in order to avoid the chance of spreading any communicable disease to the pigs at the piggery. She confirmed that Mr Grassi and Ms James went through the same procedure and also put on a protective bio-security suit. Ms Simpson stated that she recorded video footage of the conditions in which the pigs were being kept, including the size of the sow stalls. She exhibited to her affidavit a copy of the film taken by her (Exhibit DS-2). She said that, on or about 10 July 2006, she gave the film to Mr Grassi. She gave evidence of a conversation with Mr Pearson in early July 2006 in similar terms to that related by Mr Grassi in his affidavit.

41 Ms Simpson's evidence was that when she gave the film to Mr Grassi, she thought that it would be given to Mr Pearson to be used for the purpose of obtaining a report from a veterinarian concerning the welfare of the pigs and for the report and film to be then given to police to investigate conditions at the piggery in relation to possible breaches of the Prevention of Cruelty to Animals Act .

42 Ms Simpson, a member of Animal Liberation since July 2002 (Exhibit B), said that she too had never authorised the publication or distribution of the film to anyone other than Mr Pearson and that she has not approached the media or made any public statements concerning either the video film or the treatment of pigs at the Wonga Piggery.

Issues concerning the relief claimed

43 Once admissions were made by the defendants, there was no longer an issue as to the defendants' trespass onto the plaintiff's property. Mr J R Clarke of counsel who appeared on behalf of the plaintiff, argued that on the basis of the admission by the defendants, his client was entitled to a declaration in the terms of order 1 of the relief sought in the Third Further Amended Statement of Claim. A declaration was sought in the following terms:-

"1. A declaration that, on or about 9 July 2006, each of the defendants, without the consent of the plaintiff, intentionally and wrongfully entered and trespassed upon the land and property at Moppity Road, Young in the State of New South Wales, having Folio Identifier 2/577373 (plaintiff's property)."

44 Mr M A Ashhurst SC, who appeared on behalf of the defendants, took issue with the plaintiff's asserted entitlement to the declaration. He raised the issue of the utility of such a declaration, given that the usual position in a case of trespass is that, subject to proof, damages are the appropriate remedy.

45 Apart from paragraph 1 of the relief claimed in the Third Further Amended Statement of Claim, the plaintiff claimed relief in paragraphs 3, 4, 5, 6, 7 and 8 in the following terms:-

"3. A declaration that each or all of the defendants hold the copyright, conferred by ss.35 and 98 of the Copyright Act 1968 (Cth) ..., in any photographs and cinematograph film (respectively) taken on the plaintiff's property by the defendants when they entered the plaintiff's property on 9 July 2006, on constructive trust for the plaintiff ( the constructive trust claim ).

4. An order that each or all of the defendants assign to the plaintiff, in writing, the legal title to the intellectual property rights in the photographs and the cinematograph film referred to in paragraph 3 above.

5. An order that each or all of the defendants deliver up to the plaintiff the negatives of the photographs and the cinematograph film referred to in paragraph 3 above, and any copies of those photographs or that cinematograph film in the possession, power or control of each or all of the defendants or any other person or entity from whom each or all of the defendants is entitled to seek possession.

6. Alternatively to the relief sought in paragraphs 3, 4 and 5 above, an injunction restraining the defendants, or each of them, from publishing or otherwise disseminating or authorising any other person or entity to publish or disseminate, the photographs and cinematograph film referred to in paragraph 3 above.

7. Damages for trespass.

8. Aggravated and exemplary damages."

46 The Plaintiff's Written Outline of Submissions confirmed that an order was sought that the copyright in the video film and the photographs be held on a constructive or a resulting trust by the defendants for the plaintiff.

47 In developing the submissions for the plaintiff, Mr Clarke adopted the approach of, firstly, dealing with the Court's jurisdiction to order injunctive relief on the basis that many of the cases concerned with what was referred to as the "role of equity in this area" was said to have been considered in the context of the availability of injunctive relief.

48 It was contended for the plaintiff that the jurisdiction of the Court to restrain a trespass on land extended to enjoining the "products" of trespass. Mr Clarke sought to support the contention by the decision in Lincoln Hunt Australia Pty Limited v Willesee (1986) 4 NSWLR 457. In that respect, submissions were addressed to the circumstances in which the concept of unconscionability may be said to form a basis for the grant of injunctive relief as well as the application of the relevant principles enunciated by the High Court in ABC v Lenah Game Meats Pty Limited (2001) 208 CLR 199.

49 Before dealing with the submissions made by both parties on the principles to be applied in the present case in considering the grant of injunctive relief, I set out below certain evidentiary matters.

The evidence

50 The documentation tendered in evidence is substantial. Mr Clarke produced the following bundles of documents:-

(1) A folder containing the plaintiff's pleadings and the affidavit evidence of the parties. The Third Further Amended Statement of Claim and Amended Defence to Third Further Amended Statement of Claim were, by leave, filed during the hearing. The affidavits relied upon by the plaintiff (documents 3 to 12) were also included in the folder.

Copies of the affidavits relied upon by the plaintiff are behind Tabs 3 to 9 and copies of the affidavits relied upon by the defendant are behind Tabs 10 to 13.

(2) A bundle of documents incorporating copies of the exhibits to the affidavit of Sally Alexandra Walker affirmed on 27 May 2009.

51 The plaintiff relied upon two affidavits of Sally Alexandra Walker affirmed on 27 May 2009 and 11 June 2010.

52 Ms Walker worked in a managerial position at Windridge Farm piggery until 11 October 2007.

53 In evidence, she stated that the plaintiff owned and operated a pig farm on approximately 560 hectares on Moppity Road in the Shires of Young and Harden New South Wales under licence from Larkray Pty Limited, a company owned and controlled by the same persons who controlled the plaintiff company.

54 The property is surrounded by a continuous fence. Ms Walker's evidence was that people who do not work at the Wonga Piggery are not permitted to enter it without the express consent and authorization of the general manager of Windridge Farm.

55 Ms Walker stated that the front gate of the piggery was approximately waist height. At night the front gate is locked with a heavy chain and padlock which prevents vehicles from being driven into the property.

56 At night, unless a person had access to the key to unlock the front gate, it was not possible to access the Wonga Piggery without scaling the surrounding fence or the front gate or breaking through the front gate.

57 The plaintiff tendered a diagram (not to scale) of the Wonga Piggery (Exhibit A). According to the evidence, there are three signs affixed to the fence, a weighbridge and the office. These respectively state:-

(1) "Attention: quarantine area. Do not enter past this point. All enquiries should be directed to the office. Visits by appointment only ..." (with the telephone number provided).

(2) "Please direct all enquiries to the office between the hours of 8.00 am to 5.00 pm ..." ( with the telephone number provided).

(3) "Security Notice. This building is under 24 hr video surveillance" .

58 The evidence indicates that adjacent to the office and parking area, there is a high security fence approximately three metres high. That fence separates that area from the sheds where the pigs are kept. Within the security fence are two large gates. Both of them are locked at night with heavy chains and padlocks. At all material times, there was a sign on the first gate in the following terms: "Attention Quarantine Area. Do not enter past this point. All enquiries should be directed to the office. Visits by appointment only ..." with the telephone number specified.

59 The second gate is approximately 20 metres inside the first gate and bears another sign which states "Quarantine Area. Do not enter past this point. Trespassers will be prosecuted" .

60 The high security fence is approximately 30 metres long and joins up on both ends with a second surrounding fence which surrounds the paddock between the road and the sheds where the pigs are kept and is approximately 1.5 metres high. According to the evidence of Ms Walker, the effect of this arrangement is that, between the outside of the property and the sheds where the pigs are kept, there are at least two fences. Exhibit E to her first affidavit is a bundle of 11 photographs depicting the security measures.

61 The doors to the sheds in which the pigs are kept, the evidence establishes, were closed at night and secured with heavy sliding bolts.

62 A security camera was located behind the gates in the large security fence. There were two security cameras on the corners of the office which took footage of the security gates on the other side and the front gate.

63 Ms Walker stated that there was no longer any footage from any of the cameras in existence from the night of 9 July 2006.

64 Ms Walker's evidence established the existence and terms of a staff security policy which was formally communicated to employees of the plaintiff by way of memorandum.

65 The plaintiff also had what was termed a "Gate Policy" whereby the last person to leave the pig sheds, feed mill and workshops in the evening would shut and lock the main security gate. From time to time, reminders concerning the gate policy were distributed to members of staff. During the previous 13 years of employment at Windridge Farm, Ms Walker had observed employees adhering to the gate policy. Both that policy and other security measures are said to apply on weekends as well as weekdays.

66 The plaintiff has retained a security company, SNA Security, to patrol the piggery. That company has conducted patrols of the piggery at random times twice per night. Records of patrols indicate that SNA attended at 9.41 pm on 9 July 2006 and at 12.40 am on 10 July 2006. They indicate that the gates were not open at either of those times.

67 Evidence was given of media interviews conducted subsequent to the trespass.

68 On 7 September 2006, Ms Walker listened to a news report broadcast on the ABC Central and West radio station on that date. In the transcript of the broadcast, the newsreader referred to animal activists recently entering a piggery at Young and filming alleged cruelty. Mr Pearson of Animal Liberation, New South Wales, is reported as saying:-

"Our view is that if there is a criminal act or serious offence ... on a property, that is a breach of criminal law, being the Prevention of Cruelty to Animals Act, it is seen to be reasonable for a person to actually (to) open the door and gather that evidence to be able to expose what's going on."

69 The transcript of a radio broadcast of 8 September 2006 records statements by Mr Pearson which convey the clear implication that there existed a piggery in which the conditions for pigs were deficient and that expert evidence would support that proposition. The transcript of the "Rural Report" on 8 September 2006 recorded, inter alia, Mr Pearson stating:-

"Well, there was a video taken inside a piggery near Young, which depicted scenes which we'd had calls about from probably people who were employed or coming through the place at some stage and they depicted scenes of sows in stalls which were undersized and also lots of stereotypic distress behaviour and I received a video tape marked that that was the piggery depicted and then also the vision showed documentation within the piggery which clearly showed that that was the operation near Young."

70 Mr B A Robertson, Unit Manager for the plaintiff, said that he heard the interview of 8 September 2006 in which Mr Pearson said words to the effect:-

"Windridge Farms mistreats its pigs. In particular, the sow housing at Windridge Farms is cruel."

71 Ms Walker stated that she heard an interview on or about 12 September 2006 involving Mr Pearson which she said was broadcast on ABC Illawarra Radio on that date. The interviewer commenced by stating that the RSPCA had said that it would not be taking any action over alleged mistreatment of animals at the Young piggery. The report stated that Mr Murphy from the RSPCA, New South Wales, said that his officer's report had found no wrong-doing. Mr Pearson is recorded as participating in the interview and stating, inter alia:-

"I'm just puzzled why everybody's so quick to give them the tick when, really, the police haven't given them the complete tick yet. They're still waiting for expert opinions to come back. And nobody would know about Windridge Piggery only for the fact that New South Wales farmers decided to, you know, complain about it.

..."

72 Ms Walker's evidence establishes that the Wonga Piggery held, at the relevant time, Australian Pork Industry Quality Programme (APIQP) QA Certification. She stated that it is a high health status piggery. The certificate certifies that the Wonga Piggery produces safe and wholesome pork and, in conjunction with a third party audit process, encompasses physical, chemical, biological, bio-security and welfare standards.

73 According to Ms Walker's evidence, the high health standards of the Wonga Piggery had been achieved at a considerable cost to the plaintiff over many years.

74 The evidence was that the plaintiff had adopted bio-security/quarantine measures including construction of a special purpose quarantine station to allow for the housing of new breeding stock to protect against the break out of disease. That quarantine station is situated on a property separate from Windridge Farm's other piggeries.

75 The achievement of high health standards of the piggeries by the plaintiff was said to have been achieved by strict adherence to quarantine protocols and, in particular, strict controls on visitors onto the plaintiff's properties including the Wonga Piggery. At the relevant time, visitors were prohibited from entering the piggery without the permission of Mr Hirst, General Manager of the plaintiff.

76 The evidence indicates that the plaintiff's employees have strictly adhered to the Quarantine Rules. The affidavit of Ms Walker sets out detailed protocols and measures designed to ensure quarantine procedures are strictly adhered to. The plaintiff, in particular, has, over the years of operation, provided overalls and boots which all staff and visitors must wear if they wish to enter the piggery sheds. No-one is allowed into the sheds without special protective clothing provided by the plaintiff. All visitor movements have been tracked to prevent a deterioration of the health status of the animals on the plaintiff's piggeries.

77 In consequence of the unauthorised entry by the defendants, Ms Walker said that she took steps to have a veterinary surgeon inspect the animals for signs and symptoms of any disease that may have been brought onto the Wonga Piggery by the unauthorised entry. For this purpose, Agrisol Pty Limited were retained. An invoice for these services dated 11 September 2006 was rendered in the amount of $1,625.45.

78 The evidence also indicates that, as a result of the unauthorised entry, the plaintiff engaged SNA Security to conduct additional patrols at the Wonga Piggery. As at the date of her first affidavit (27 May 2009), the additional security patrols by SNA had cost the plaintiff an additional $125 plus GST per month. A bundle of monthly invoices for patrols undertaken between 1 July 2006 and 30 April 2009 were relied upon as showing an increased cost such patrols from September 2006. The relevant invoices have been paid by the plaintiff.

79 In her affidavit, Ms Walker sought to deal with what is said to be the injury to the plaintiff and its employees. The plaintiff, according to Ms Walker, fosters the well-being of its staff, land, animals, the community and the environment. This is referred to in the affidavit as "the Company Vision" . Support for the same is said to be recorded in various documents identified in the affidavit. According to Ms Walker, she contends that Windridge Farm enjoys a good reputation in the local community. In support, reference was made to a number of newspaper and other articles in relation to the plaintiff's operations.

80 Ms Walker referred to the considerable media and public attention given to the piggery in consequence of the unauthorised entry by the defendants and associated events. Copies of the media interviews referred to above were attached to her affidavit as follows :-

(1) 7 September 2006: Tab I, Affidavit of Ms Walker.

(2) 8 September 2006: Tab J, Affidavit of Ms Walker.

(3) 12 September 2006: Tab K, Affidavit of Ms Walker

81 Mr Hirst was employed as the general manager on Windridge farms between 20 October 1997 and 11 October 2007. He remained employed by Windridge as general manager after 11 October 2007.

82 In his affidavit sworn 27 May 2009, Mr Hirst gave evidence of the quarantine rules which he developed using expert veterinary advice. The protocols restrict access to all of the plaintiff's piggeries. Mr Hirst stated that he developed the Quarantine Rules to ensure that staff and visitors to the piggeries did not transfer diseases from outside the farms to the pigs in the piggeries.

83 The Quarantine Rules required his permission for entry and there is a requirement that those entering must comply with the Rules. Staff have been issued with reminders concerning the necessity for there to be compliance with them.

84 Mr Hirst stated that he experienced extreme stress following the defendants' unauthorised entry.

85 In the defendants' case, Mr Ashhurst read the affidavit of Mr Pearson sworn on 10 May 2010. Mr Pearson stated that he is employed as an Executive Director of Animal Liberation New South Wales since 2004. Prior to that he had been President for 11 years.

86 His evidence was that in early July 2006, he contacted Diana Simpson and Mauro Grassi and, in separate conversations, said words to the following effect:-

"In early July 2006, I contacted Diana Simpson and Mauro Grassi and in separate telephone conversations with each of them I said words to the effect of:

Me: Animal Liberation has received information that pigs are being kept in cramped cages at a piggery in Wonga Road near Young. Can you document the conditions at the piggery, particularly the size of sow stalls? If the sow stalls don't conform with the Code of Practice for Animals for Pigs they might be breaching the Prevention of Cruelty to Animals Act.

I'll give any documentation you gather to a veterinarian to prepare a report, and then pass the report and the documentation onto the police to investigate possible breaches of the Prevention of Cruelty to Animals Act."

87 On or about 10 July 2006, he received video tapes from Mr Grassi and Ms Simpson. These were exhibited to his affidavit (Exhibit MP-2).

88 He stated that he arranged for a DVD copy of what he refers to as the "edited film" to be sent to a veterinarian, Dr Mark Simpson.

89 On 21 August 2006, he received an email from Dr Simpson attaching a report, as he had requested. The opinion, apparently, was based upon him having viewed the edited film.

90 Mr Pearson then made contact with Young Police and requested them to investigate the Wonga Piggery for possible breaches of the Prevention of Cruelty to Animals Act . He subsequently supplied Detective Senior Constable Thompson with a DVD copy of the film and Dr Simpson's report.

91 In about July 2008, Mr Pearson said Animal Liberation received a copy of the police report of an investigation.

92 In acting as he did, Mr Pearson said it was never his intention on behalf of Animal Liberation that any of the conduct he identified would cause harm to the plaintiff's commercial reputation. He stated (paragraph 14):-

"... Rather, my only intention in act on behalf of Animal Liberation was that the conduct referred to above would assist police to investigate possible breaches of the Prevention of Cruelty to Animals Act."

93 Mr Grassi's affidavit affirmed on 10 May 2010 was also read in the proceedings. He stated that he has been a member of Animal Liberation for approximately three to four years.

94 He said that, in July 2006, he had a conversation with Mr Pearson. In paragraph 4 of his affidavit he set out the conversation in the following terms:-

"In about early July 2006 I had a telephone conversation with the executive director of Animal Liberation NSW, Mark Pearson, concerning a piggery in Wonga Road at Young ('the Wonga Piggery') in words to the following effect:

Pearson: Animal Liberation has received information that pigs are being kept in cramped cages at a piggery in Wonga Road near Young. Can you document the conditions at the piggery, particularly the size of sow stalls? If the sow stalls don't conform with the Code of Practice for Animals for Pigs they might be breaching the Prevention of Cruelty to Animals Act.

I'll give any documentation you gather to a veterinarian to prepare a report, and then pass the report and the documentation onto the police to investigate possible breaches of the Prevention of Cruelty to Animals Act.

Me: Yes, I can do that."

95 Mr Grassi said that he subsequently spoke to Ms Tully James, the third defendant, and said to her words to the effect:-

"5. During 2006 I was in a relationship with the third defendant, Tully James. In or about early July 2006, after the conversation with Mark Pearson referred to in paragraph 4 above, I had a conversation with Tully James in words to the following effect:

Me: Do you want to attend the Wonga piggery with me to document the treatment of the pigs there? If we give the documentation to Mark Pearson he'll arrange for a veterinarian's report about the treatment of the pigs, and give the report and documentation to the police to investigate possible breaches of the Prevention of Cruelty to Animals Act.

Tully James: Yes, alright. I'll go with you."

96 As earlier stated, on or about the night of 9 July 2006, Mr Grassi stated that he attended the Wonga Piggery with Ms Simpson and Ms James.

97 He said that when he entered the plaintiff's premises it was dark. He said he did not see any quarantine or other signs or warnings displayed at the Wonga Piggery. He said that when he reached the barn he found the door open and entered. He then recorded video footage of the conditions in which the pigs were being kept including the size of the sow stalls and the pigs themselves.

98 On about 10 July 2006, Mr Grassi gave the film to Mark Pearson. He said:-

"... Based on my conversation with Mark Pearson referred to in paragraph 4 above, when I gave the film to Mark Pearson I intended it to be used for the purpose of obtaining a report from a veterinarian concerning the welfare of the pigs, and for that report and the Film to then be given to police to investigate conditions at the Wonga piggery in respect of possible breaches of the Prevention of Cruelty to Animals Act (NSW)."

Consideration

99 Mr Clarke for the plaintiff sought orders to the effect that the copyright in the video film and the photographs is held on a constructive or a resulting trust by the defendants for the plaintiff, and that such copyright should be transferred to it, together with a consequential order that the film and photographs be delivered up to the plaintiff.

100 Furthermore, or in the alternative, the plaintiff sought an injunction to restrain the defendants from making any further use of the film or photographs.

101 An order for damages was also sought, being an award of general damages as well as consequential damages, aggravated damages and exemplary damages.

102 It was contended that the granting of injunctive relief was not dependent upon the finding of a constructive trust given that the plaintiff has an action against the defendants in trespass.

103 It was submitted that in these circumstances the court has jurisdiction to grant an injunction as part of its jurisdiction to prevent the defendants otherwise being able to gain from their legal wrong. Reference was made in this respect to Meagher, Gummow and Lehane's Equity: Doctrines and Remedies (4 th ed) (2002). The jurisdiction to restrain a trespass to land, it was argued, extended to enjoining the products of trespass. This applied where trespassers intrude onto a person's property and make a film during the trespass. The jurisdiction extended to enjoining the publication of the film, whether or not it constitutes a breach of any duty of confidence.

104 The claim for a declaration of a constructive trust relied upon observations of Gummow and Hayne JJ in Lenah Game Meats (supra) at 246 to 248. The entitlement to an injunction was claimed to arise in accordance with the principles enunciated in Lincoln Hunt (supra) .

105 The evidence of Mr Grassi, Ms Simpson and Ms James, which I accept, establishes the following matters:-

(1) The defendants each acted on Mr Pearson's request to enter the plaintiffs' premises and photographically record conditions of the pigs/sows.

(2) The defendants understood that the request required them to enter the plaintiff's premises without permission and hence would involve a trespass on the plaintiff's property.

(3) The defendants' motivation in agreeing to Mr Pearson's request to enter the plaintiff's premises and take video/photos was upon the basis of Mr Pearson's stated opinion that the stall conditions of sows contravened relevant legislation and were contrary to the animals' welfare.

(4) The purpose of entering the premises and obtaining video material and photos of the stalls was to obtain evidence for an investigation as to the conditions in which pigs were maintained.

(5) The photos/video film, the defendants understood, would be supplied by Mr Pearson and for him to supply to a veterinarian for an opinion on that question.

(6) The defendants did not enter the premises or take the photos/video film for the purpose of harming the plaintiff's reputation or business.

(7) The defendants did not obtain photos/video film for the purpose of publishing them in the media/media release.

106 The evidence of the defendants was that they did not place any express limitation on Mr Pearson's use of the video film. I accept their evidence that they had no plan or intention to use the video film other than as stated above.

107 The Court is vested with power to grant injunctive relief to prevent a continuation or a repetition of legal wrongs by the defendants including trespass to land.

108 The question in these proceedings is whether injunctive relief lies in respect of the photographs and video film taken by the defendants whilst they were unlawfully upon the plaintiff's premises.

Injunctive relief

109 The decision of Young J in Lincoln Hunt (supra) concerned an application for an interlocutory injunction. In that case, the actions of the defendant's film crew, who entered the plaintiff's premises and recorded film in the open lobby of the plaintiff's office, did not involve a breach of confidentiality. In the present case, the defendants' entry in the late hours of the night or early hours of the morning was by stealth as was the recording the sow stalls. However, there was no breach of confidentiality involved in filming either the sow shed or pigs in it.

110 The Court, as Young J noted at 462, has wide powers to restrain material obtained in breach of confidence and indeed power to restrain many forms of unconscionable conduct. His Honour expressed the position in the following terms (at 463):-

"Thus, I am of the view that 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 to make publication unconscionable."

111 In Lenah Games Meats (supra), Gleeson CJ considered the jurisdiction to grant interlocutory injunctive relief in the absence of a legal or equitable cause of action. Specific reference was made to the concept and role of unconscionability in that context. The relevant observations of Gleeson CJ at 218 may be summarised as follows:-

(1) That unconscionability is a concept that may be of importance in considering the nature and existence of the claimed right which a plaintiff seeks to vindicate.

(2) However, it cannot be used to conjure up a right to interlocutory relief where there is no right to final relief.

(3) The role of unconscionability is in the evaluation of the claim to final relief.

(4) In publishing a film known to have been taken as a result of a trespass would not, on that account alone, be unconscionable and should be restrained. A person who comes into possession of information which the person knows to be confidential may come under a duty not to publish it.

(5) The usual elements for an equitable remedy are, first, that the information is confidential, secondly, that it was originally imparted in circumstances importing an obligation of confidence and, thirdly, that there has been, or is threatened, an authorised use of the information to the detriment of the party communicating it.

112 In Lenah Game Meats (supra), it was conceded that the information (in that case as to the processing of possums) was not confidential and it had not been imparted in confidence. The same position, in my opinion, equally arises in the present case. It was not contended, nor in my opinion could it have been contended, that the information contained in the photographs and video film was of a type or character as to make it confidential and, of course, the information was not obtained by the defendants in circumstances importing an obligation of confidence. As Gleeson CJ stated at 223:-

"The slaughtering process is not confidential, and information about it was not obtained in circumstances of trust and confidence, or otherwise importing an obligation of good faith ..."

113 Gleeson CJ at 227 observed that, although the unauthorized filming of what took place were private in a proprietorial sense, not everything that an owner does on his or her land is a private act, "... nor does an act become private simply because the owner of land would prefer that it was unobserved ..." .

114 In Lenah Game Meats (supra), the respondent, the operator of the possum processing facility, contended, as one of its principal arguments, that conduct or threatened conduct of the ABC in publishing the film, known to have been taken as a result of a trespass, was properly to be characterised as "unconscionable" . Unconscionability, if established, was said to provide the ground in equity for the relief claimed in the action.

115 There is judicial support for the proposition that trespassers, if caught in time, could be restrained from publishing film taken during the trespass.

116 In Lincoln Hunt (supra), Young J commenced his analysis, in accordance with practice and principle, by asking, as the first question, what was the plaintiff's "equity" . However, as his Honour considered that damages would provide an adequate remedy, that question in the ultimate disposal of the case did not need to be addressed. However, Young J advanced a tentative opinion at 464:-

"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."

117 As discussed below, the evidence in the present case did not establish, in my opinion, that providing the video film to Mr Pearson for the contemplated use (namely, for investigation purposes) was a publication that could or did affect the goodwill of the plaintiff company.

118 However, returning to the question as to whether or not a trespasser who obtains film during a trespass can be restrained by injunctive relief from publishing it, Gleeson CJ in Lenah Game Meats (supra) indicated that an affirmative answer to the question would be appropriate if a breach of confidence was thereby involved (at 230):-

"... I would give an affirmative answer to the question, based on breach of confidence, provided the activities filmed were private. I say nothing about copyright, because that was not argued. The case was one against the trespassers. That was why exemplary damages were available, and constituted a sufficient remedy."

119 Gleeson CJ also cited a somewhat different case, Donnelly v Amalgamated Television Services Pty Limited (1998) 45 NSWLR 570. That case involved the execution of a search warrant by police who took a video recording of the plaintiff in his underpants, in a bedroom. The video found its way into the hands of a television broadcaster.

120 The question as to whether an interlocutory injunction was available to restrain publication of the video was one requiring attention to the question of the person's privacy and, in particular, whether the privacy had the necessary quality about it to warrant the application of the law of breach of confidence.

121 Following a review of that and other cases, Gleeson CJ in Lenah Game Meats (supra) concluded (at 230 to 231):-

"For reasons already given, I regard the law of breach of confidence as providing a remedy, in a case such as the present, if the nature of the information obtained by the trespasser is such as to permit the information to be regarded as confidential. But, if that condition is not fulfilled, then the circumstance that the information was tortiously obtained in the first place is not sufficient to make it unconscientious of a person into whose hands that information later comes to use it or publish it. The consequences of such a proposition are too large."

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 Mr Pearson. 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.

124 As discussed in greater detail below, I consider, in any event, that damages in the circumstances of the present case provide an adequate remedy.

Copyright and mandatory order for delivery up of video film

125 In accordance with the provisions of the Copyright Act 1968 (Cth), copyright would subsist in the first and second defendants in respect of the video film made or recorded by each of them and, in the case of Ms James, in the photographs taken by her on the plaintiff's premises. In accordance with the provisions of the Act, copyright is personal property and ownership of that copyright vests, in general, in the maker.

126 In Lenah Game Meats (supra), Gummow and Hayne JJ observed that a "cinematograph" film (a term employed in the Act) may have been made, as in the case of Lincoln Hunt (supra), in circumstances involving the invasion of the legal or equitable rights of the property owner or breach of the obligations of the maker to the property owner (at 246):-

"... 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, 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 ..."

127 Apart from the consideration as to the trespass itself, before a constructive trust can arise in respect of 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 Game Meats (supra) concerning the decision in Lincoln Hunt (supra), 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" (at 464).

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 Mr Pearson 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 Game Meats (supra) 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 Mr Pearson were markedly different from those in Lincoln Hunt (supra) in which the very purpose in making the television film was for general publication via the relevant television network.

131 The submission for the plaintiff was that equity will intervene to prevent wrongdoers from enjoying "the fruits of their tort" : Outline Submissions of the Plaintiff at [30]. It was contended that just as equity will act to prevent a thief from enjoying the fruits of crime, so in this case equity would prevent the defendants from retaining the film and photographs. However, I do not accept that what was termed the "theft principle" (plaintiff's submissions at [31]) has application to the facts of the present case.

132 In circumstances established in evidence, the video film and photographs did not and do not of themselves constitute objects that have any intrinsic value. They do not have a value by reason of the fact, for example, that they disclose a trade secret of the plaintiff. They clearly do not and there is no other matter which attaches value to them. For that reason, this is not a case like those in which stolen money is made the subject of a constructive trust as discussed in Black v S Freedman & Co (1910) 12 CLR 105 at 108 to 109 per Griffith CJ and at 110 per O'Connor J. Nor is it a case of stolen property of value which is converted on trust in a manner which is automatic: Robb Evans of Rob Evans & Associates v European Bank Limited (2004) 61 NSWLR 75 at 100 per Spigelman CJ.

133 The evidence in the plaintiff's case, in other words, does not establish that the plaintiff lost anything of commercial or other value by reason of the video film or photographs having been taken and given to Mr Pearson, apart from some expenses for which damages are the appropriate remedy.

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 of 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 Mr Pearson to publish the video film. The evidence was, as earlier stated, that the video film was provided to Mr Pearson 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.

136 In written submissions on behalf of the defendants dated 10 September 2010 in relation to relief claimed in the proceedings, it was noted that, at the end of submissions, the plaintiff sought to amend its Third Further Amended Statement of Claim by including a proposed prayer for relief in the following terms:-

"5A An order that the Defendants and each of them revoke any authorisation given to any person in possession of the photographs and/or the cinematograph film authorising the use, copying, publication or dissemination of the photographs and the cinematograph film referred to in paragraph 3 above."

137 In the further submissions for the defendants it was noted that counsel for the plaintiff advised the Court that the alternative order sought was "an alternative to the constructive trust" orders.

138 The defendants further submissions also noted that this was the first time that the defendants had been made aware of the proposed alternative prayer for relief. Notwithstanding the late application to amend, the defendants did not oppose the amendments sought. The submissions further recorded at [4]:-

"4. ... Further, that although the Defendants doubt that an order in this form could be made by the Court except by consent of the parties, the Defendants do in fact consent to the order being made and have sent a letter to the Plaintiff's solicitors to that effect (see letter attached). Indeed, the Defendants say that such an order is consistent with the Defendants' position throughout these proceedings.

5. The Defendants' position is that this consent order not only makes any consideration of the constructive trust orders unnecessary (which would seem to be common ground) but also makes any consideration of the availability of the 'stand alone injunction' unnecessary as there is no evidence of any risk of the Defendants themselves publishing any of this material so as to enliven the jurisdiction of the Court to grant such an order (assuming that the Court was otherwise entitled to do so)."

139 The form of the proposed alternative order is set out in a document marked MFI 5 in the proceedings.

140 In the letter of 9 September 2010 from the solicitor for the defendants to the solicitor for the plaintiff, it was stated, inter alia:-

"We refer to the handwritten proposed alternative order for relief styled 5(A) handed up by your counsel to Justice Hall this afternoon shortly prior to the Court adjourning, and marked MFI 5.

At that time in response to a question from his Honour, Mr Clarke advised the Court that it was an alternative claim for relief to the claim for a constructive trust.

We are instructed that, without prejudice or admission , our clients consent to the alternative order for relief. We request that you provide us with a proposed Short Minute of the Order to be made by his Honour in Chambers.

Our clients' understanding as a result, is that Prayers 3, 4 and 5 will now fall away 'as a package'."

141 I have concluded that there is no basis for the declaration sought in respect of the copyright of the photographs and video film in paragraph 3 of the Third Further Amended Statement of Claim. Nor has a basis been established for an order for assignment of the legal title to the intellectual property rights in that material as sought in paragraph 4 or for a mandatory order for delivery up of the negatives of the photographs and video film as sought in paragraph 5 of the Third Further Amended Statement of Claim.

142 I accept the submission made on behalf of the defendants that there would be no utility in making a declaration of the fact that the defendants trespassed upon the plaintiff's land as sought in paragraph 1 of the Third Further Amended Statement of Claim, there being no entitlement in the plaintiff to any equitable remedy that would justify the making of a declaration in those terms. As has been noted, the defendants, by admission, have accepted that they had intentionally and wrongfully entered upon and thereby trespassed on, the plaintiff's land.

143 I turn to the question of damages.

Damages

144 The claim for damages, as earlier discussed, was for general damages, aggravated damages and exemplary damages.

145 Whilst a trespasser is liable for any loss he or she causes to the land or the value of the land in question, it was properly acknowledged in the Outline Submissions of the Plaintiff (paragraph 46) that no such loss had been incurred in the present case.

146 The defendants' entry onto the plaintiff's property was wrongful and the plaintiff is, accordingly, entitled to judgment on that basis to an award of damages. Damages represent a vindication of the right of the person who is entitled to exclusive possession to exclude persons, including the defendants, from his or her property: Plenty v Dillon (1990-1991) 171 CLR 635 at 645. In that case, it was also observed by Gaudron and McHugh JJ at 655:-

"... True it is that the entry itself caused no damage to the appellant's land. But 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. Although the first and second respondents were acting honestly in the supposed execution of their duty, their entry was attended by circumstances of aggravation. They entered as police officers with all the power of the State behind them, knowing that their entry was against the wish of the appellant and in circumstances likely to cause him distress ... 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, particularly when the invader is a Government official. The appellant is entitled to have his right of property vindicated by a substantial award of damages."

147 In TCN Channel 9 Pty Limited v Anning (2002) 54 NSWLR 333, a claim was made for damages to trespass to land constituted by a television reporter and cameraman filming on business premises (without permission) and attending to conduct an interview with a view to broadcasting it. The landowner was distressed and claimed damages including hurt to feelings, humiliation, affront to dignity and mental trauma diagnosed as depression and panic disorder.

148 On appeal, Spigelman CJ stated:-

"General damages should reflect the significant purpose of vindicating the respondent's right to exclusive occupation. This requires a substantial award (see Plenty v Dillon at 654-655) per Gaudron J and McHugh J. I would assess such damages at $25,000 (at [178])."

149 The Chief Justice, in that case, also considered that the conduct of the trespassers justified an award of aggravated damages in the amount of $25,000. In awarding that amount, the Chief Justice referred to the hurt to feelings, humiliation and affront to dignity experienced by the respondent as having been aggravated by the way in which the appellant acted in the course of its trespass (at 179):-

"... It confronted the respondent with cameras rolling and indicated clearly that it was filming for purpose of broadcast to the public at large. Further, whether before or after the confrontation with the respondent, it widened the trespass from merely approaching him and felt able to film elsewhere on the property, both in front of the stacks of tyres and in the interview with the truck driver ..."

150 The Chief Justice stated that the conduct on the part of the appellant in that case was such as to justify an award of exemplary damages. A number of additional factors were identified which could support such an award.

151 Mr Ashhurst on behalf of the defendants submitted that, in the absence of proof of actual damage to property, the plaintiff was entitled to recover "nominal damages only" : Defendants' Submissions at [45].

152 Reliance was placed upon dicta in Port Stephens Shire Council v Tellamist Pty Limited [2004] NSWCA 353. In that case, the Court of Appeal awarded an amount of $250 for each instance of trespass. The Defendants' Submissions referred to a number of other decisions, each of which turn upon their own facts.

153 In Finesky Holdings Pty Limited v Minister for Transport for Western Australia [2001] WASC 87, Roberts-Smith J concluded at [262] that an award of $1,000 as nominal damages was appropriate vindication of the plaintiff's right to exclusive possession. The decision was affirmed on appeal: [2002] WASCA 206.

154 In Vella v Australia & New Zealand Banking Group Limited [2009] NSWSC 123, a mortgagee admitted temporarily taking possession of the plaintiff's property pursuant to a claim of right as mortgagee. The mortgage having been fraudulently obtained, there was, in fact, no basis for the bank to claim a right to possession. There was no evidence of actual loss. The Court, Young CJ in Eq (as his Honour then was), awarded nominal damages in the amount of $4,000 (at [88]).

155 It was submitted on behalf of the defendants that, where there was no proof of actual loss caused by trespass, the correct approach was that only an award of nominal damages is available and is appropriate. Reliance was placed upon authorities referred to in the submissions, including in particular, the decision in Tellamist (supra).

156 Reliance was also placed upon dicta of Kitto J in Healing (Sales) Pty Limited v Inglis Electrix Pty Limited (1968) 121 CLR 584 at 607 wherein his Honour stated:-

"The plaintiff, by a cross-appeal, sought verdicts for substantial and not merely nominal damages for the trespasses to land, but the short answer is that these trespasses caused no damage to the plaintiff, and as the circumstances of aggravation were fully allowed in the amount of damages awarded for conversion and trespass the goods, the Court of Appeal was right to allow nominal damages only."

157 The facts in Healing (Sales) (supra) were, however, unique. The plaintiff (Inglis Electrix Pty Limited) was a retailer of electric appliances with shops in various parts of Sydney and in its suburbs. It had entered into an arrangement with Healing (Sales) Pty Limited whereby it procured appliances for sale in its shops. There were certain commercial agreements entered into between the parties, the details of which I need not set out here. Following the appointment of a receiver and manager of the property of Inglis Electrix, Healings (Sales) sent in trucks and men to the plaintiff's stores and, without warning, instructed their crews to pick up all the appliances bearing their brand. A question in the proceedings was their entitlement to do so. Kitto J observed at 606:-

"... The initial entry of the defendant's servants and agents upon each of the relevant parcels of land and the acts they did thereon for the purpose of re-taking possession of the goods which were subject to display plan agreements were all authorised ..., but the acts that they did for the purpose of taking possession of other goods were clearly not. Every step that they took on the plaintiff's lands for the latter purpose was an unlicensed step and therefore a trespass ..."

158 In that case, there was a cross-appeal against the award for nominal damages. However, it is noted that the trespassers caused no damage to the plaintiff and that the circumstances of aggravation had been fully allowed for in the amount of damages awarded for conversion and trespass to goods. In those circumstances, Kitto J stated the Court of Appeal was right to allow nominal damages only.

159 In the present case, it was argued for the defendants that there was no privacy issue to be protected, that is to say, an interest such as the privacy of a person's home. It was said that, applying the reasoning in Plenty (supra), this fact justified a lower award than in cases such as Anning (supra), where the trespass involved in invasion of a natural person's privacy connected with their residence.

160 In the assessment of general damages in the present case, it is, I consider, appropriate to have regard to the following:-

(1) The plaintiff's premises were well secured by fencing and other devices. This, at least in part, was to protect not merely the property, but the operations conducted by the plaintiff which required the adherence to strict quarantine and other regulatory requirements.

(2) The unauthorised invasion of commercial premises of that kind, represented a serious unlawful intrusion into premises upon which specialist commercial operations were being conducted.

(3) The trespass in the present case carried with it a risk or potential for serious harm to the plaintiff's operations.

(4) The unlawful intrusion of the defendants, on the evidence, caused genuine and serious concerns and agitation amongst its staff which was fully justified, having regard in particular to the sensitive and important nature of the commercial operations conducted.

(5) The unlawful invasion was carried out at night in circumstances in which, although security arrangements were in place, the possibility of detection and for taking protective action was limited.

161 I do not consider that it would be appropriate to award nominal damages only. As Spigelman CJ observed in Anning (supra), general damages should reflect the significant purpose of vindicating the plaintiff's right to exclusive occupation. That right is to be seen in context, in particular, having regard to the matters referred to in the preceding sub-paragraphs. I am of the opinion that a substantial award of damages is appropriate. In all the circumstances, I consider that an award of general damages in the amount of $15,000 to be appropriate.

Aggravated and exemplary damages

162 It has been observed that in awarding exemplary damages, a court focuses its attention on the conduct of the trespasser, whereas in awarding aggravated damages, the Court's focus is primarily upon the effect of the trespass on the plaintiff: State of NSW v Ibbett (2005) 65 NSWLR 168, affirmed in State of NSW v Ibbett (2006) 229 CLR 638.

163 The plaintiff claimed an award of aggravated damages. Aggravated damages, as noted in the written submissions for the plaintiff, are given to compensate a plaintiff when the harm done to him or her by a wrongful act was aggravated by the manner in which the act was done: Uren v John Fairfax & Sons Pty Limited (1966) 117 CLR 118 at 149 per Windeyer J; Gray v Motor Accident Commission (1998) 196 CLR 1 at 6 (per Gleeson CJ, McHugh, Gummow and Hayne JJ). Aggravated damages are to be contrasted with exemplary damages, which are to punish the defendant and thereby serve the objects of moral retribution or deterrence: Gray (supra) at 6.

164 In the plaintiff's submissions, it was noted that aggravated damages can be awarded not only for hurt to feelings, but also for damage to reputation: Andrews v John Fairfax & Sons Limited (1980) 2 NSWLR 225 and David Syme & Co Limited v Mather [1977] VR 516.

165 The plaintiff's submissions acknowledge that the issue as to whether a corporation can recover aggravated damages for damage to its reputation is a highly contentious one. However, it relied upon observations of Mahoney JA in Andrews (supra) at 254 to 256.

166 It was also submitted for the plaintiff in the Third Amended Statement of Claim:-

"67. The Plaintiff claims aggravated damages by reason of the conduct of the Defendants in aggravating the injury to the Plaintiff by reason of:-

(1) the nature of the Defendants' conduct in the deliberate, unlawful and criminal trespass onto the property; and

(2) the Defendants' conduct subsequent to the trespass, including in allowing the film and photographs to be used by Animal Liberation (NSW) for its own purposes, and in the manner in which the Defendants have conducted themselves during the course of the preliminary discovery proceedings and these proceedings, by not coming forward and then not admitting the trespass."

167 Evidence was given by employees of the plaintiff company as to the concern and distress that arose as a result of the publicity concerning the piggery. In his affidavit, Mr Robertson expressed his concern that the adverse publicity was an attack on his responsibility and made him apprehensive of any further unauthorised entry. Similar evidence was given by Mr Roger Nott, Manager, in his affidavit affirmed on 27 May 2009 and in the affidavit of Edwina Beveridge also affirmed on 27 May 2009 and that of Mr Andrew Hurst also sworn on that date.

168 I have earlier referred to the evidence of the intention and purpose of the defendants in committing the trespass. The defendants are comparatively young persons who were requested to commit the trespass by a person who was older and who occupied a relatively senior position in the Animal Liberation organisation . In other words, their entry was not one made of their own initiative for the purpose of advancing their own self-interest, but was done in pursuit of action which they wrongly and misguidedly considered to be a justified method of investigation.

169 In entering the premises, the defendants did not damage the property or any object on the property.

170 They also took some precautionary steps by disinfecting their footwear and wearing special suits to avoid the risk of contamination. Those methods adopted fell well short of the high standards that had been implemented by the plaintiff to guard against such a risk. However, fortunately, no contamination occurred.

171 The defendants, as I have earlier stated, were not motivated or did not intend to release the video film or the photographs to anyone other than to Mr Pearson for investigation purposes. They did not give him any instructions or authorisation to release the film or related information to the media or to anyone other than those immediately involved in the investigation including police.

172 The defendants themselves did not disclose to the media or, so far as the evidence goes, to any other person or body than Mr Pearson and Animal Liberation.

173 The evidence does not establish that the plaintiff suffered any pecuniary harm or loss to reputation or goodwill by virtue of the defendants' trespass and related activities. There was no evidence called by the plaintiff to establish any loss of that nature. Accordingly, there is no basis, in my opinion, for damages to be awarded to the plaintiff upon the basis of damage or loss of the plaintiff's standing or reputation.

174 I do not consider that this is a case in which the prerequisites for an award of aggravated or exemplary damages for trespass to land have been established. Reference was made in the course of submissions to a number of cases including XL Petroleum (NS) Pty Limited v Caltex Oil (Aust) Pty Limited (1985) 155 CLR 448. That case involved the deliberate sabotage of an aspect of the operations of the plaintiff company and it was dealt with by a significant award of exemplary damages. It is a case very distant from the circumstances of the present case.

175 The defendants' conduct in the present case did not demonstrate a complete disregard or indifference to the plaintiff or the plaintiff's operations.

176 Although there is some evidence that there was upset and stress caused to employees after they became aware that there had been a trespass some two months or so before, this is not a case in which there is a basis for an award of damages for hurt feelings, humiliation or affront to dignity. In other words, there is no evidence of vindictiveness or malice or of intention to embarrass or inflict hurt or injury.

177 The defendants are not to be excused as being simply idealists or as self-appointed "investigators" pursuant to someone else's suspicion concerning the conditions in which animals were housed. The award of general damages in this case is one, as I have earlier indicated, I consider properly vindicates the invasion of the plaintiff's right to exclusive possession.

178 I accept the submission made on behalf of the defendants that it is an entrenched principle of the law of damages that a corporation, being insensible, cannot be compensated for hurt feelings: ABC v Comalco (1986) 12 FCR 510 and Columbia Pictures Industries Inc v Robinson [1987] 87 Ch 38. See also Aktas v Westpac [2009] NSWCA 9 at [99] per McClellan CJ at CL (Basten and Ipp JJA agreeing) in respect of the principle that a corporation cannot recover damages for hurt to feelings caused by defamation.

Special damages

179 The plaintiff claimed damages in respect of three items:-

(1) Exemplary costs.

(2) Increased security patrols.

(3) Security sensor light.

180 The plaintiff abandoned its claim in respect of (3), the security senor light.

181 In respect of the increased security patrols, the plaintiff claimed an amount from the date of commencement of such patrols to the date of the hearing.

182 It was submitted for the defendants that the extra patrols were not to rectify any damage to the plaintiff's security arising from the trespass. The increased additional security was said to be against future trespasses by unknown persons. Accordingly, it was contended for the defendants that the additional security patrols were not a direct consequence of the trespass, the subject of these proceedings (in the manner that the escape and loss of cattle from a damaged fence was a direct consequence of the trespass in Wormald v Cole [1954] 1 QB 614).

183 The claim made by the plaintiff for additional security patrols was quantified at $137 per month from September 2006 to the date of hearing. A tax invoice from SNO Security was exhibited to the affidavit of Ms Walker dated 27 May 2009 (Annexure AF).

184 The plaintiff relied upon the evidence of Ms Walker to establish both the amounts and the reasonableness and necessity for the additional expenses.

185 I do not consider that Ms Walker's evidence supports the fact that additional security patrols can be said to have been necessitated by or caused by the act of trespass by the defendants. In paragraph 77 of her affidavit, she simply states:-

"Also, as a result of the unauthorised entry, I engaged SNO Security to conduct additional patrols of the Wonga Piggery."

186 She said that, on or about 4 September 2006, she gave instructions to a representative of SNO to the effect:-

"Because of the raid, we want you to conduct patrols of the Wonga Piggery 4 times per night, instead of 2 times per night."

187 Mr Ashhurst argued for the defendants that the additional security patrols were not unlike the concept of "betterment" where the cost of a full replacement of certain property has been effected as a result of damage caused by negligence: Roberts v Rodier [2006] NSWSC 282. He further contended that if, prior to the incident, the plaintiff was only paying for two patrols per night, it was not entitled to an improved service at the expense of the defendants of a third and fourth patrol: "... It would be no different from the Plaintiff building a new fence and claiming the cost of it as a direct result of the trespass" : Defendants' Submission at [42].

188 I do not consider that the claim for the additional patrols, on the limited evidence concerning the perceived need for the additional patrols, can be said to have been the result of the defendants' trespass.

189 In particular, there was no evidence that the plaintiff had received threats or any indication either from Mr Pearson, Animal Liberation or the defendants that further acts of trespass by them or anyone else was in contemplation.

190 Accordingly, the claim for increased security patrols is refused.

191 In relation to veterinary costs, the plaintiff seeks to recover costs associated with a veterinarian's attendance at an inspection of the Wonga Piggery on 11 September 2008.

192 The defendants claim that there is no evidence that this inspection was either required or requested by investigating police. The submission was that the additional cost is not the natural and probable consequence of the trespass. It was submitted:-

"... No explanation has been provided as to why the owners and operators of the piggery could not adequately answer questions from the police or RSPCA concerning their own pig farm practices. As a result, these costs are not compensable as the natural and probable consequence of the trespass in rectifying damage caused by trespass: see Wormald v Cole ..."

193 The plaintiff relied upon the evidence of Ms Walker who said that, on or about 4 September 2006, she contacted Agrisol Pty Limited and retained it to inspect "... the pigs at the Wonga Piggery for signs of disease and to answer questions from the police and the RSPCA ..." (Affidavit of Ms Walker affirmed 27 May 2009 at [76]). Ms Walker annexed a copy of an invoice from Agrisol Pty Limited (Annexure AE to her affidavit). The invoice was dated 11 September 2006 in the amount $1,625.45. The plaintiff has since paid the invoice.

194 It is clear from the terms of the invoice that Agrisol Pty Limited provided a veterinary surgeon to attend at the time of investigations involving the RSPCA and police. It is therefore clear that the attendance was related to the trespass committed by the defendants. According, I consider that it was an expense reasonably incurred by the plaintiff that was rendered necessary by reason of the intrusion into the property by the defendants.

195 Accordingly, this item will be included by way of special damages.

Conclusions

196 The defendants unlawfully entered the plaintiff's property and, whilst present on the property, took video film and photographs.

197 The plaintiff is not entitled to equitable relief as claimed in the Third Amended Statement of Claim.

198 The plaintiff is entitled to an order and judgment for damages as follows:-

(1) General damages $15,000.00

(2) Special damages, namely, veterinary costs $1,625.45

Total $16,625.45

199 I direct the parties to draft a timetable for any submissions on consequential or ancillary matters and to provide short minutes of order to give effect to this judgment. Those matters include the form of orders including, in particular, whether the orders are to be made against the defendants on a basis of joint and severable liability.

Decision last updated: 21 July 2011