Lindsay, David --- "Protection of privacy under the general law following ABC v Lenah Game Meats Pty Ltd: where to now" [2002] PrivLawPRpr 45; (2002) 9(6) Privacy Law and Policy Reporter 101
[2] The arguments developed in this casenote are explored at greater length ,in Lindsay D ‘Playing possum? Privacy, freedom of speech and the media following ABC v Lenah Game Meats ,Pty Ltd. Part 1: The availability of an interlocutory injunction to prevent publication’ (2002) 7(1) Media & Arts Law Review 1; ‘Part 2: The future of Australian privacy and free speech law, and implications for the media’ (2002) 7(3) Media & Arts Law Review 161. The author is grateful to the editor of the Media & Arts Law Review for agreeing to the use of some material in this article.
[4] The cases included Emcorp Pty Ltd v ABC [1988] 2 Qd R 169 and Rinsale Pty Ltd v ABC (1993) ATR 81-231.
[5] Lenah Game Meats Pty Ltd v ,ABC [1999] TASSC 114. The majority consisted of Wright and Evans JJ.
[6] See, for example, North London Railway Co v Great Northern Railway Co [1883] UKLawRpKQB 111; (1883) 11 QBD 30; The Siskina [1979] AC 210; Cardile v LED Builders Pty Ltd [1999] HCA 18; (1999) 198 CLR 380.
[7] As the joint judgment put it:
Decisions of equity courts are not a wilderness of single instances determined by idiosyncratic exercises of discretion. To utter the undoubted truth that in Australia equitable principles have a dynamic quality is not to deny that it ,is those principles that are decisive [(2001) 185 ALR 1 at 39].
[8] To this effect, Gummow and ,Hayne JJ stated that: ‘the notion of unconscionable behaviour does not operate wholly at large as Lenah would appear ,to have it’: (2001) 185 ALR 1 at 28.
[9] (2001) 185 ALR 1 at 14.
[10] [2000] EWCA Civ 353; [2001] 2 All ER 289.
[11] See Home Office v Wainwright [2001] EWCA 2081 (20 December 2001); Venables v News Group Newspapers Ltd [2001] 1 All ER 908; A v B (a company) [2002] 1 All ER 449; Campbell v Mirror Group Newspapers [2002] EWHC 499 (QB) (27 March 2002).
[12] See Tucker v News Media Ownership Ltd [1986] NZHC 216; [1986] 2 NZLR 716; Bradley v Wingnut Films [1993] 1 NZLR 415; P v D [2000] 2 NZLR 591; Tobin R ‘Invasion of Privacy’ [2000] New Zealand Law Journal 216.
[13] (2001) 185 ALR 1 at 53. The Commonwealth Attorney-General, intervening, made a submission in support of this principle.
[14] In this respect, his Honour stated that ‘[t]he consequences of such a proposition are too large’: (2001) 185 ALR 1 at 17.
[15] At 12.
[16] At 13.
[17] At 29.
[18] At 88.
[19] At 89.
[20] Victoria Park Racing and Recreation Grounds Co Ltd v Taylor [1937] HCA 45; (1937) 58 CLR 479.
[21] (2001) 185 ALR 1 at 38.
[22] His Honour stated that ‘[t]he problem for the respondent is that the activities secretly observed and filmed were not relevantly private’: (2001) 185 ALR 1 at 13.
[23] (2001) 185 ALR 1 at 55.
[24] At 95.
[25] The inadequacies of traditional English causes of action in this respect were first identified in the seminal article that resulted in the development of the US tort of privacy: Warren S D and Brandeis L D ‘The Right to Privacy’ (1890) 4 Harvard Law Review 193.
[26] [2000] EWCA Civ 353; [2001] 2 All ER 289 at 330.
[27] Bok B Secrets Vintage Books New York 1983, pp 5-11.
[28] Allen A Uneasy Access Rowman & Littlefield Publishing Totowa NJ 1988, p 24.