8. Remedies

Updates and background for this project (Digest)

• The Commission’s provisional view
• Damages
• Account of profits
• Injunctions
• Delivery up and destruction
• Declarations
• Proposal 2

THE COMMISSION’S PROVISIONAL VIEW

8.2 In this chapter, the Commission describes the principal remedies available at common law and in equity in order to facilitate a debate as to which of these might be suitable as responses to a proposed statutory cause of action for invasion of privacy. As well, the description of the various remedies, with the accompanying discussion, is intended to elucidate why the Commission is leaning towards recommending making a range of remedies available, an approach described by Justice Mason in Akron Securities v Iliffe as a “remedial smorgasbord”.²

8.3 The justification for providing a list of remedies in the proposed legislation is to enable the court to choose the remedy that is most appropriate in the fact situation before it, free from the jurisdictional restraints that may apply to that remedy in the general law. These restraints have their historical origin in the institutional separation of the courts of equity and the courts of law. For example, an equitable remedy (say, an injunction) is available in support of both equitable rights and legal rights, but, traditionally, is only available in aid of the latter where the legal remedy (usually damages) is “inadequate”.³ By making injunctive relief available as a statutory remedy, it is available free of the restraints that apply to it as an equitable remedy.

8.4 The Commission proposes that the list of remedies should be kept simple, with no statutory prescriptions as to the relationship between them.⁴ This would give the courts the scope to identify and develop in case law the circumstances in which individual remedies should be awarded. This is a proper approach to take in an area as new to NSW law as conferring a statutory cause of action for invasion of privacy on individuals. With time and experience, courts will be in a better position to discern which remedies are most appropriate and constructive in addressing particular categories of invasion of privacy.

8.5 The Commission also proposes that the statutory remedies would operate within the framework of the general law. This means that, as well as the statutory range of remedies made available to the court, all ancillary orders, such as property preservation orders and search orders, would be available. It would also mean that the procedural rules of the general law relating to remedies would apply.

8.6 Although much of the subject matter covered by the Trade Practices Act 1974 (Cth) does not correlate with privacy law, the Act nevertheless provides a good example of the “smorgasbord” approach to providing statutory relief for breaches of that statute. Under the Trade Practices Act 1974 (Cth), the consequences of a contravention of the Act vary according to which Part of the Act has been contravened. Part V governs consumer protection and is the Part that most nearly gives rise to “tort liability” under the Act.⁵ For contraventions of Part V, the Court may grant an injunction under s 80, make an order in an action for damages brought under s 82 or s 87 and/or make such other orders pursuant to s 87 as it thinks appropriate to compensate a person who suffers loss or damage as a result of contraventions of that Act, or that will prevent or reduce the loss or damage. Subsection (2) of s 87 sets out a list of orders from which the Court can choose. These include: a declaration that the contract at the centre of the loss or damage is void; an order varying the contract; an order refusing to enforce any or all of the provisions of the contract; an order for refund of money, return of property and/or compensation for the loss or damage; an order to repair, or to supply parts for, goods at the defendant’s own expense; an order to supply services at the defendant’s own expense; and an order to execute an instrument varying or terminating the creation or transfer of an interest in land.

8.7 The approach that the Commission proposes would not be without constraints. While the court is given wide discretion to select an appropriate remedy, or combination of remedies, from the available range, general principles would preclude the duplication of relief that would result in a windfall to the plaintiff. For example, a plaintiff would be required to elect between damages and an account of profits⁶

DAMAGES

8.8 An order for damages is an order that the defendant pay to the plaintiff as compensation a sum of money assessed by the court. Damages can be awarded for economic as well as for non-economic loss. Damages for economic loss compensate actual monetary loss suffered, and expenditure incurred, by the plaintiff, both past and future. The amount can often be precisely computed, although it can also include compensation for economic loss that cannot be calculated with certainty, such as loss of future earnings. Damages for non-economic loss are not capable of precise calculation and compensate injuries to mind and body, such as pain and suffering, embarrassment, humiliation and injury to feelings.

8.9 It is said that the main function of tort law is to provide compensation if liability is established.⁷ It is well settled that the goal of compensation is to place the person who has been injured, or who has suffered, through the defendant’s fault in the same position (to the extent that money can achieve this) as he or she would have been had the wrong not occurred.⁸

8.10 Without doubt, an order for compensation will be one of the most important remedies to make available to a person aggrieved by an invasion of his or her privacy. While the Commission proposes recommending that damages be one of the remedies available under the proposed legislation, the appropriate application and any restrictions on this remedy need to be worked out. Two principal questions arise:

• Should courts have the power to award exemplary and aggravated damages?
• Should there be a threshold and/or statutory limit on the amount of damages able to be awarded?

8.11 As explained above, the purpose of damages is, generally, to restore the plaintiff’s position, as far as is possible, to that occupied before the wrong occurred. An exception to this purpose is when a court sees fit to award exemplary, or punitive, damages. Exemplary damages are awarded not to compensate the plaintiff, but rather to punish the defendant and deter him or her (and others) from future violations. According to the High Court, the reason for awarding exemplary damages in civil proceedings is to “assuage any urge for revenge felt by victims and to discourage any temptation to engage in self-help likely to endanger the peace.”⁹ Hence, the focus of exemplary damages is the defendant’s conduct, not the plaintiff’s loss.

8.12 Normally, punishment and deterrence is the province of the criminal courts. However, there are occasions when the defendant’s wrongdoing has been so reprehensible that an award of exemplary damages is called for. The level of seriousness has been held by the High Court to be conduct that is “high-handed, insolent, vindictive or malicious or [has] in some other way exhibited a contumelious disregard for the plaintiff’s rights”.¹⁰ It “might also properly include behaviour in wanton or reckless disregard of the plaintiff’s welfare”.¹¹

8.13 What is regarded as the definitive formula, “conscious wrongdoing in contumelious disregard of another’s rights”, was first adopted by Justice Knox in Whitfield v De Lauret & Co Ltd.¹² However, in Gray v Motor Accident Commission, the High Court expressed doubts as to whether a single formula could adequately describe the boundaries of conduct justifying exemplary damages, because the cases in which they have been awarded, ranging from abuse of governmental power, through defamation to assault, are so varied.¹³ The Court held in that case that exemplary damages are available in negligence provided the tortfeasor is guilty of “conscious wrongdoing”.¹⁴

8.14 In our review of anti-discrimination law, the Commission observed that the availability of exemplary damages under statute is diminishing in New South Wales¹⁵ and that their availability in civil actions generally has been criticised.¹⁶ The Commission concluded that exemplary damages should not be available under the Anti-Discrimination Act 1977 (NSW).¹⁷ We similarly concluded in our interim report on surveillance that exemplary damages should not be available under surveillance legislation.¹⁸

8.15 There are substantial doubts as to whether punitive damages have a proper role in civil law. The defendant is punished upon proving a wrongdoing on the civil standard of “balance of probabilities”, which is a lower standard of proof than the criminal one of “beyond reasonable doubt”. This result is considered to be inappropriate and unjust. Critics argue that punishment is more appropriately left to the criminal justice system, which contains appropriate safeguards for defendants.¹⁹ Exemplary damages are also criticised as amounting to an unfair windfall to the plaintiff.²⁰ Consequently, the general trend is to make them unavailable, a trend reflected by the 2002 Civil Liability Act.²¹ We also note that the Defamation Act 2005 (NSW)²² does not allow awards of exemplary or punitive damages. On the other hand, we note that Ireland’s Privacy Bill 2006 proposes allowing an award of exemplary damages.²³

Aggravated damages

8.16 The purpose of aggravated damages is to compensate the plaintiff, as opposed to punishing the defendant. Their focus is therefore on the consequences for the plaintiff of the defendant’s wrongdoing. Aggravated damages are a separate head of compensatory damages and must be specifically pleaded. They are awarded when the harm done to the plaintiff by a wrongful act is aggravated by the manner in which it was done, resulting in injury to the plaintiff’s feelings.²⁴ As the High Court explained in Lamb v Cotogno:

Aggravated damages, in contrast to exemplary damages, are compensatory in nature, being awarded for injury to the plaintiff’s feelings caused by insult, humiliation and the like. Exemplary damages, on the other hand, go beyond compensation and are awarded “as a punishment to the guilty, to deter from any such proceeding for the future, and as a proof of the detestation of the jury to the action itself”.²⁵

Jurisdictional limit on damages

8.18 Should there be a ceiling on the amount of damages, at least for non-economic loss, that can be awarded for invasions of privacy in an action brought under proposed privacy legislation? There are a number of Acts in related areas, and in other jurisdictions, that have taken this approach.

8.19 The Defamation Act 2005 (NSW), for example, limits damages for non-economic loss to $250,000, unless the court otherwise orders.²⁸ Section 34 of that Act provides that there must be “an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded”.

8.20 The Commission recommended in its report on surveillance, Report 98, that the amount of damages that the Administrative Decisions Tribunal (“ADT”) should have the power to grant under the proposed Surveillance Act be limited to $150,000, except in cases where the panel has a District Court judge as its presidential member where the limit should reflect the jurisdiction of the District Court.²⁹ The jurisdictional limit of the District Court is $750,000.

8.21 New Zealand’s Privacy Act 1993 (NZ) governs personal information held by an agency, rather than enacting a statutory tort of privacy. Nonetheless, it is interesting to examine the approach taken under that Act. The Human Rights Review Tribunal³⁰ is empowered to award damages arising from a breach of privacy under the Act for pecuniary loss, loss of any benefit, and humiliation, loss of dignity or injury to feelings³¹ to a limit of $200,000.³²

8.22 More generally, the Civil Liability Act 2002 (NSW) stipulates that the maximum amount of personal injury damages that can be awarded for non-economic loss is $350,000, and this only for “a most extreme case”.³³ Compelling grounds for imposing a jurisdictional limit on damages for invasion of privacy derive from the fact that Parliament has seen fit to impose this limit non-economic loss in personal injury cases. It is difficult to envisage a situation where a person hurt by an invasion of his or her privacy suffers greater loss than the amount awarded for pain and suffering to a person who has (taking an example of a case at the extreme end of the spectrum) been made a quadriplegic as a result of the defendant’s negligence.

8.23 The Commission also notes that statutory thresholds have been imposed in relation to work injuries and motor accident claims. The existence of a threshold can help to discourage frivolous or trivial claims and perhaps should be considered in actions for invasion of privacy. This is an issue on which the Commission would welcome feedback.

ACCOUNT OF PROFITS

8.24 An order for an account of profits gives to the plaintiff any profit the defendant has made from his or her wrongdoing. Justice Windeyer explained the difference between an account of profits and damages in Colbeam Palmer v Stock Affiliates Pty Ltd in terms of the defendant’s gain as opposed to the plaintiff’s loss:

[B]y the former the infringer is required to give up his ill-gotten gains to the party whose rights he has infringed: by the latter he is required to compensate the party wronged for the loss he has suffered.³⁴

8.26 There is no exhaustive judicial categorization of the wrongs that will give rise to an account of profits, but the principal application of the remedy is in equity for breach of confidence, breach of fiduciary duty and infringement of intellectual property.³⁷

8.27 Within the exclusive jurisdiction of equity, there is no doubt that an account of profits is available for breach of confidence, at least where the defendant knowingly committed the breach. (Although it is less certain whether the remedy is available for inadvertent or “innocent” breaches of confidence.³⁸ )

8.28 The purpose of an account of profits is not to punish the defendant, but to prevent his or her unjust enrichment.³⁹ However, in Warman International Ltd v Dwyer, the High Court drew a distinction between the purpose of an account of profits for intellectual property infringement and for breach of fiduciary duty.⁴⁰ While the former focuses on unjust enrichment, in the latter, there appears to be greater emphasis on precluding “the fiduciary from being swayed by considerations of personal interest and from accordingly misusing the fiduciary position for personal advantage”.⁴¹

8.29 In our Report, Defamation, we noted that the availability of the remedy of an account of profits in defamation cases had never been put to the test in Australian law.⁴² We also noted that there was some support for making the remedy available, especially where the defendant has deliberately calculated that the profits to be made from publication outweigh any damages it may have to pay to the plaintiff. Nevertheless, the Commission concluded that, in defamation cases, it should not be generally available because it is not addressed to the purpose of vindicating the plaintiff’s reputation. Further, the Commission considered that the difficulty in calculating quantum introduced uncertainties that could (like large awards of damages) have a chilling effect on freedom of speech.⁴³

8.30 Actions for breach of privacy will not, of course, have as a primary purpose the vindication of the plaintiff’s reputation. Moreover, under our proposed statutory cause of action, freedom of speech will, where relevant, be a factor taken into account not only in the imposition of liability for invasion of privacy but also in the determination of the appropriateness of the remedy in the particular case.⁴⁴ In such a case, the Commission can see no reason why, if it is otherwise appropriate, an account of profits should not be available to the plaintiff. An example may be where a publisher has deliberately calculated that the profits to be made from magazine, newspaper or television revelations about the private life of a particular person outweigh any damages that the publisher may be ordered to pay to the plaintiff. We note that Ireland’s Privacy Bill 2006 includes an account of profits remedy, allowing the court to order that the defendant pay damages equal to any, or any likely, financial gain accruing to the defendant as a result of the breach.⁴⁵

INJUNCTIONS

8.31 Injunctions are remedies usually given in equity or by statute. An injunction is most commonly negative, prohibiting or restraining the defendant from engaging in certain conduct; but can also be positive, requiring the defendant to take some action. In equity, the remedy is not available as of right upon proof of certain elements but is granted in the court’s discretion. An injunction must enforce a legal or equitable cause of action⁴⁶ and “ought to make clear what it is that the defendant is required to do or not to do”.⁴⁷

8.32 The traditional view was that injunctive relief would only be granted if damages are an inadequate remedy.⁴⁸ Lord Justice Lindley in London &Blackwell Railway Co v Cross stated that “prima facie you do not obtain injunctions to restrain actionable wrongs for which damages are the proper remedy”.⁴⁹ There are now doubts as to whether this is an accurate view, even regarding the prima facie position. It is accepted that, in many areas of law, the prima facie remedy for a breach of the plaintiff’s rights will be an injunction. In Beswicke v Alner, the Full Court of the Supreme Court of Victoria held that:

we should give effect to the rule that where the plaintiff has established the invasion of a common law right, and there is ground for believing that without an injunction there is likely to be a repetition of the wrong, he is, in the absence of special circumstances, entitled to an injunction against such repetition.⁵⁰

8.34 Injunctions, including interlocutory injunctions, will often be the most important recourse that an individual has to protect his or her privacy rights. In France, for example, with its fierce protection of privacy, courts tend to prefer to grant specific relief to limit publication and release of information, rather than award damages.⁵³ Irish courts will be given wide injunctive powers when the Privacy Bill 2006 is passed. A court will have the power to grant an order prohibiting the defendant doing anything that it considers would violate the privacy of the plaintiff.⁵⁴ Nonetheless, there is an issue, which should be opened up to debate, as to the extent to which courts should be prepared to prevent publication and circulation of material rather than compensate harm by an award of damages. Before publication is prevented, the courts must consider very carefully the resulting interference with freedom of speech. This issue becomes particularly acute where an interim injunction is sought: if granted, freedom of speech is curtailed even though there has been no final adjudication of the alleged invasion of privacy.

Interlocutory injunctions

8.35 Interlocutory injunctions may be granted to preserve the status quo until the final hearing if the defendant’s alleged wrongdoing, or threatened wrongdoing, will cause irreparable damage to the plaintiff. In American Cyanamid Co v Ethicon Ltd, Lord Diplock said that the purpose of interlocutory injunctions is “to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial.”⁵⁵

8.36 Before it will grant an interlocutory injunction, the court must be satisfied of two things:⁵⁶

• First, the plaintiff must show that there is a sufficient likelihood⁵⁷ that he or she will succeed at trial to justify in the circumstances preserving the status quo pending trial (a “prima facie case”).⁵⁸ The High Court stated, in Beecham Group Ltd v Bristol Laboratories Pty Ltd, that the nature of the rights being asserted by the plaintiff and the likely practical consequences of an injunction will determine how strong the probability of success at trial needs to be.⁵⁹
• Secondly, the court must be satisfied that “the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.”⁶⁰ Some of the key factors that the court will take into account in establishing this balance include: the strength of the plaintiff’s case; hardship that might result to either party, or to a third party; the possibility of irreparable damage or harm to the plaintiff if the injunction is refused; the sufficiency of the plaintiff’s undertaking as to damages should the interlocutory injunction be dissolved; and any delay in applying for the injunction.⁶¹

8.37 The public interest in freedom of expression is potentially important in any proceedings for an interlocutory injunction in cases of invasion of privacy. It may be relevant to the plaintiff’s demonstrating a sufficient likelihood of success at trial to justify in the circumstances the preservation of the status quo. This is particularly so if the statutory cause of action for invasion of privacy requires the court to balance at the outset the asserted privacy interest against the public interest in freedom of speech.⁶² It may also be relevant to the balance of convenience where the grant of an interlocutory injunction would have the effect of acting as a restraint on freedom of expression.

8.38 In Australian Broadcasting Corporation v O’Neill (“O’Neill”),⁶³ the High Court recently considered the effect that prior restraint of publication has on the grant of interlocutory injunctions in defamation cases. The case established that the general principles applicable to interlocutory injunctions, as stated in Beecham, apply in defamation cases.⁶⁴ However, in practice, it will always be difficult to obtain an interlocutory injunction that, in a given factual situation, restrains freedom of speech. In the context of defamation, the application of the organising principles established in Beecham “will require particular attention to the considerations which courts have identified as dictating caution. Foremost among those considerations is the public interest in free speech.”⁶⁵

8.39 In O’Neill, the appellant sought an order from the High Court to have an interlocutory injunction granted in the Supreme Court of Tasmania, and upheld by the Full Court of the Supreme Court, lifted. The injunction was granted in defamation proceedings to restrain the broadcast of allegedly defamatory material. This material was a television program titled “The Fisherman”, which implied that O’Neill, a convicted child killer, was responsible for the unsolved kidnap and murder of the Beaumont children, and the murder of other children. One of the key issues in the appeal was the role of freedom of speech in interlocutory proceedings of this nature.

8.40 Although truth alone is now a defence to defamation under the Defamation Act 2005 (Tas),⁶⁶ this appeal had to consider the law as it was under the Defamation Act 1957 (Tas). That Act provided the defendant with a defence in a defamation action where the defendant could establish that the defamatory matter in issue was true and published for the public’s benefit.⁶⁷

8.41 The High Court disagreed with the decisions of the Tasmanian courts to grant an interlocutory injunction in this case for two reasons.⁶⁸ First, the courts below had failed to give proper account of the public interest in free speech that is basic to the caution with which courts approach prior restraint of publication.⁶⁹ Although they had considered the likelihood of the appellant succeeding at trial by establishing that the defamatory matter was true and was published for the public benefit, the courts below had concluded that it was not for the public benefit, and is contrary to the public interest, for there to be “trial by media”. This, the High Court pointed out, was an error. The criminal trial is not the only context in which matters of the kind in question in the instant case could be discussed. Indeed, it would have been open to a tribunal of fact to find that public discussion of the unsolved disappearance of the Beaumont children, O’Neill’s confession to another murder with which he has never been charged, the possibility of his having committed other unsolved murders and of re-offending, and the controversies concerning release on licence or parole of serious offenders, is for the public benefit.⁷⁰ In any event, “[t]he public interest in free speech goes beyond the public benefit that may be associated with a particular communication”.⁷¹ Once this is realised, it was difficult to understand how suppression of public discussion of the matters in issue in this case could serve the public interest.⁷²

8.42 Secondly, in view of his general character or reputation as a convicted child killer, O’Neill could get no more than nominal damages even if he succeeded in the defamation action. This made any order that curtailed freedom of the press less justifiable and hence, on the balance of convenience, the case against a grant of an interlocutory injunction in O’Neill’s favour was even stronger.⁷³

Undertaking as to damages

8.43 In order to obtain an interim injunction, the plaintiff must also give “the usual undertaking as to damages”, meaning that the plaintiff agrees to submit to an order of the court to pay compensation to any person (not restricted to a party to the action) affected by the injunction if, at the final hearing, it is determined that it should not have been granted.

8.44 The plaintiff’s undertaking to recompense a defendant, or others, affected by an interim injunction if it transpires that it should not have been given, is a practical requirement not to be overlooked. An aspect of the litigation in Douglas and Others v Hello! Ltd illustrates its importance.⁷⁴ In 2000, the plaintiffs were granted an interim injunction restraining unauthorised publication of photographs of their wedding. This injunction was discharged on appeal.⁷⁵ In 2005, the English Court of Appeal found the decision to lift the injunction had been wrong for two reasons.⁷⁶ First, the Douglases had a very strong case for relief. Secondly, insufficient weight had been given to the likely modest level of damages that the Douglases would recover if an interlocutory injunction were refused and publication of the unauthorised photographs went ahead. In fact, the modest damages of £14,600 awarded at trial to the Douglases, while unassailable in principle, were essentially an inadequate remedy for their mental distress (and were no real deterrent to a publisher determined to infringe their privacy). At the interlocutory level, therefore, this likely outcome argued in favour of the grant of an interlocutory injunction as the only satisfactory protection of the Douglases’ privacy. In contrast, “the interests of Hello! at the interlocutory stage, which were essentially only financial, could have been protected by an appropriate undertaking in damages by the Douglases”.⁷⁷

Mandatory orders of correction or apology

8.45 A mandatory injunction could be framed to require a defendant to apologise to the plaintiff or to issue a correction relating to material that has been published. There is a traditional reluctance to make such orders in the law of defamation since compelling the defendant to publish, as his or her own statement, words which he or she may not believe to be true obviously runs into free speech considerations.⁷⁸ However, the New Zealand Court of Appeal has recognised the correction orders may, in principle, be made in cases of injurious falsehood and defamation.⁷⁹

8.46 Although the circumstances in which an apology or correction order is likely to be made available in practice in actions for invasion of privacy would probably be rare in view of the competing interest in freedom of expression,⁸⁰ the Commission sees no reason why such orders should not be available in principle. We are interested in receiving feedback on whether such orders should be listed in any statutory cause of action for invasion of privacy.

DELIVERY UP AND DESTRUCTION

8.47 The availability of an order for the delivery up and destruction of material published in violation of a person’s privacy could have a particular usefulness in the area of privacy. The remedy of delivery up is an equitable remedy administered according to equitable principles.⁸¹ It has commonly been used to order the delivery up and destruction of goods that infringe intellectual property but is also available for breach of confidence. There appears to be no reason why the remedy could not be made available in breach of privacy cases. As is noted in Chapter 5, French privacy law has a long history of offering a similar remedy to persons aggrieved by breaches of their privacy.

8.48 Ireland’s Privacy Bill 2006 empowers the court to make an order that the defendant deliver to the plaintiff any documents, articles, photographs or other material obtained or made as a result of the violation of the plaintiff’s privacy.⁸²

DECLARATIONS

8.49 Courts can, in their discretion, make declaratory orders, which must, however, “be directed to the determination of legal controversies and not to answering abstract or hypothetical questions”.⁸³ The plaintiff must have a “real interest” in seeking declaratory relief and the declaration must produce foreseeable consequences for the parties.⁸⁴ The Commission is provisionally of the view that there is a place for this remedy in actions for invasion of privacy. A declaration that the defendant’s conduct is an interference with the privacy of the plaintiff could, in some cases, be all that is needed to bring about an end to that conduct, or enable settlement of the conflict, or give the plaintiff the vindication that he or she seeks.

PROPOSAL 2

The statute should provide that where the court finds that there has been an invasion of the plaintiff’s privacy, the Court may, in its discretion, grant any one or more of the following:
• damages,including aggravated damages, but not exemplary damages;
• an account of profits;
• an injunction;
• an order requiring the defendant to apologise to the plaintiff;
• a correction order;
• an order for the delivery up and destruction of material;
• a declaration;
• other remedies or orders that the Court thinks appropriate in the circumstances.

1. See Proposal 1, p 160.

2. Akron Securities v Iliffe (1997) 41 NSWLR 353 (Mason P), 364.

3. See M Tilbury, M Noone and B Kercher, Remedies: Commentary and Materials (4th ed, Lawbook Co, 2004), [1.85]. The court of equity determines whether the remedy is inadequate.

4. See, for example, the intellectual property statutes such as the Copyright Act 1968 (Cth), the Patents Act 1990 (Cth), the Trade Marks Act 1955 (Cth) and the Designs Act 2003 (Cth). Compare the Trade Practices Act 1974 (Cth), in which the range of monetary and non-monetary remedies available under the statute are contained in different sections, in particular s 82 and s 87. The exact relationship between the sections is not clear and is a matter of legal debate: see, for example, Murphy v Overton Investments Pty Ltd (2004) 216 CLR 388; I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109.

5. This is particularly so in relation to s 52, misleading or deceptive conduct.

6. For example, Tang Man Sit v Capacious Investments Ltd [1996] AC 514.

7. Harriton v Stephens [2006] HCA 15, [264] (Crennan J). See also Skelton v Collins (1966) 115 CLR 94, 128-129 (Windeyer J).

8. Livingstone v Rawyards Coal Co (1880) 5 App Cas 25, 39.

9. Lamb v. Cotogno (1987) 164 CLR 1, 9-10.

10. Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118, 129 (Taylor J).

11. Backwell v AAA [1997] 1 VR 182, [202].

12. Whitfield v De Lauret & Co Ltd (1920) 29 CLR 71, 77.

13. Gray v Motor Accident Commission (1998) 196 CLR 1, [14].

14. Gray v Motor Accident Commission (1998) 196 CLR 1, [22].

15. New South Wales Law Reform Commission, Review of the Anti-Discrimination Act 1977 (NSW), Report No 92 (1999), [10.44] (“NSWLRC R92”).

16. NSWLRC R92, [10.43].

17. NSWLRC R92, [10.45].

18. New South Wales Law Reform Commission, Surveillance, Interim Report No 98 (2001), [10.56] (“NSWLRC R98”).

19. M Thornton, “Remedying discriminatory harms in the workplace” in R Naughton (ed), Workplace Discrimination and the Law (Centre for Employment and Labour Relations Law, University of Melbourne, 1995), 72.

20. NSWLRC R92, [10.43].

21 See Civil Liability Act 2002 (NSW) s 21.

22 Defamation Act 2005 (NSW) s 37.

23. Privacy Bill cl 8(4).

24 See Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118, 149 (Windeyer J).

25. Lamb v. Cotogno (1987) 164 CLR 1, 8.

26. Defamation Act 2005 (NSW) s 35(2).

27. Privacy Bill 2006 (Ireland) cl 8 (4).

28. Defamation Act 2005 (NSW) s 35.

29. NSWLRC R98, Recommendation 12.

30. Proceedings can be brought before the Human Rights Review Tribunal in respect of an alleged interference with privacy: Privacy Act 1993 (NZ) s 82.

31. Privacy Act 1993 (NZ) s 88.

32. The jurisdiction of the Human Rights Tribunal is limited to that of the District Court: Human Rights Act 1993 (NZ) s 92Q. The jurisdiction of the District Court is limited to $200,000: District Court Act 1947 (NZ) s 29.

33. Civil Liability Act 2002 (NSW) s 16(2).

34. Colbeam Palmer v Stock Affiliates Pty Ltd (1970) 122 CLR 25, 32.

35. Consul Development Pty Ltd v DPC Estates Pty Ltd (1975) 132 CLR 373, 394; Warman International Ltd v Dwyer (1995) 182 CLR 544, 557; Attorney-General v Blake [2001] 1 AC 268, 280.

36. See Tang Man Sit v Capacious Investments Ltd [1996] AC 514.

37. G Jones (ed), Goff and Jones: The Law of Restitution (7th ed, Thomson Sweet & Maxwell, 2006), 34-012.

38. See G Jones, “Restitution of benefits obtained in breach of another’s confidence” (1970) 86 Law Quarterly Journal 463, 487; and see W Covell and K Lupton, Principles of Remedies, (3rd ed, Lexis Nexis Butterworths, Sydney, 2005), [6.11].

39. Dart Industries Inc v Décor Corp Pty Ltd (1993) 179 CLR 101, 114.

40. Warman International Ltd v Dwyer (1995) 182 CLR 544.

41. Warman International Ltd v Dwyer (1995) 182 CLR 544, 557-8.

42. See NSW Law Reform Commission, Defamation, Report No 75 (1995), [6.57] (“NSWLRC R75”).

43. See NSWLRC R75, [6.57].

44. See para 7.38-7.42.

45. Privacy Bill 2006 (Ireland) cl 8.

46. Australian Broadcasting Corp v Lenah Game Meats Pty Ltd (2001) 208 CLR 199.

47. Curro v Beyond Productions Pty Ltd (1993) 30 NSWLR 337, 348; see also Redland Bricks Ltd v Morris [1970] AC 652, 666.

48. Irving v Emu & Prospect Gravel & Road Metal Co Ltd (1909) 26 WN (NSW) 137 (Street J).

49. London &Blackwell Railway Co v Cross (1886) 31 Ch D 354, 369.

50. Beswicke v Alner [1926] VLR 72, 76-77; approved by Dixon CJ (obiter) in Mayfair Trading Co Pty Ltd v Dreyer (1958) 101 CLR 428, 451. Owen CJ added that “[f]or this purpose there is no difference between continuance and repetition”.

51. Evans Marshall & Co Ltd v Bertola SA [1973] 1 WLR 349, 379.

52. M Tilbury, M Noone and B Kercher, Remedies: Commentary and Materials, [8.147]. See Bristol City Council v Lovell [1998] 1WLR 446, 453 (Lord Hoffman), cited with approval by Gaudron, McHugh, Gummow and Callinan JJ in Cardile v LED Builders Pty Ltd (1999) 162 ALR 294, 304-305.

53. See para 5.29-5.31.

54. Privacy Bill 2006 (Ireland) cl 8.

55. American Cyanamid Co v Ethicon Ltd [1975] AC 396, 406. The plaintiff must therefore show that irreparable harm or damage could result if the injunction is refused. Sir Frederick Jordan wrote: “The purpose of an interlocutory injunction is to keep matters in status quo until the rights of the parties can be determined at the hearing of the suit.” Sir Frederick also stated that the power to grant an interlocutory injunction is exercised according to principle, not unguided discretion: F Jordan, Chapters on Equity in New South Wales (6th ed by F C Stephen, Sydney, 1945), 146.

56. Beecham Group Ltd v Bristol Laboratories Pty Ltd (1969) 118 CLR 618.

57. Not that it is “more probable than not”: Australian Broadcasting Corporation v O’Neill [2006] HCA 46, [65] (Gummow and Hayne JJ

58. Australian Broadcasting Corporation v O’Neill [2006] HCA 46, [65] (Gummow and Hayne JJ, with whom Gleeson CJ and Crennan J agreed: at [19]), citing and explaining the use of “prima facie case” in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1969) 118 CLR 618, 622 (Kitto, Taylor, Menzies and Owen JJ).

59. Beecham Group Ltd v Bristol Laboratories Pty Ltd (1969) 118 CLR 618, 622 (Kitto, Taylor, Menzies and Owen JJ); Australian Broadcasting Corporation v O’Neill [2006] HCA 46, [19] (Gleeson CJ and Crennan J), [65] (Gummow and Hayne JJ).

60. Beecham Group Ltd v Bristol Laboratories Pty Ltd (1969) 118 CLR 618, 623 (Kitto, Taylor, Menzies and Owen JJ).

61. W Covell and K Lupton, Principles of Remedies, [8.53].

62. See para 7.45-7.48

63. Australian Broadcasting Corporation v O’Neill [2006] HCA 46 (“O’Neill”).

64. O’Neill [2006] HCA 46, [19] (Gleeson CJ and Crennan J), [73]-[83] (Gummow and Hayne JJ). See also Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153; National Mutual Life Association of Australasia Ltd v GTV Corporation Pty Ltd [1989] VR 747; and Jakudo Pty Ltd v South Australian Telecasters Ltd (1997) 69 SASR 440.

65. O’Neill [2006] HCA 46, [19] (Gleeson CJ and Crennan J). See also at [80]-[82] (Gummow and Hayne JJ).

66. Defamation Act 2005 (Tas) s 25: “It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true”. The change in defamation legislation to allow for truth alone as a defence may have provided an additional reason for not continuing to restrain the broadcast of the documentary in O’Neill [2006] HCA 46, [36] (Gleeson CJ and Crennan J). Compare at [92] (Gummow and Hayne JJ).

67. Defamation Act 1957 (Tas) s 15.

68. O’Neill [2006] HCA 46, [34] (Gleeson CJ and Crennan J).

69. O’Neill [2006] HCA 46, [20]-[32] (Gleeson CJ and Crennan J), [84]-[88] (Gummow and Hayne JJ).

70. O’Neill [2006] HCA 46, [20]-[29] (Gleeson CJ and Crennan J), [84]-[85] (Gummow and Hayne JJ).

71. O’Neill [2006] HCA 46, [31] (Gleeson CJ and Crennan J). See also at [86] (Gummow and Hayne JJ).

72. O’Neill [2006] HCA 46, [24], [31]-[32] (Gleeson CJ and Crennan J), [84]-[88] (Gummow and Hayne JJ).

73. O’Neill [2006] HCA 46, [33], (Gleeson CJ and Crennan J), [89] (Gummow and Hayne JJ).

74. See Douglas and Others v Hello! Ltd [2006] QB 125, [251]-[259].

75. Douglas and Others v Hello! Ltd [2001] QB 967.

76. Douglas and Others v Hello! Ltd [2006] QB 125.

77. Douglas and Others v Hello! Ltd [2005] 4 All ER 128, [259].

78. See NSW Law Reform Commission, Defamation, Report No 75 (1995), [6.55].

79. TV3 Network Ltd v Eveready New Zealand Ltd [1993] 3 NZLR 436. Compare Defamation Act 2005 (NSW), which makes no provision for correction orders or apology as court-ordered remedies.

80. See para 7.26-7.48. Compare J G Fleming, “Retraction and Reply: Alternative Remedies for Defamation” (1987) 12 University of British Columbia Law Review 15.

81. W Covell and K Lupton, Principles of Remedies, [12.0].

82. Privacy Bill 2006 (Ireland) cl 8.

83. Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 582 (Mason CJ, Dawson Toohey and Gaudron JJ).

84. Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 582 (Mason CJ, Dawson Toohey and Gaudron JJ).