Brandon D. Stewart (Monash Law) and Lucas Clover Alcolea (Monash Law) have posted Game Meats Company of Australia v Farm Transparency International Ltd: Two Wrongs Don’t Make a (Remedial) Right on SSRN. Here is the abstract:
Game Meats Company of Australia v Farm Transparency International Ltd raises important questions about the proper limits of discretionary remedialism in Australia. The case arose after the defendant animal rights organisation published footage of the plaintiff’s commercial slaughterhouse obtained during several unlawful trespasses. The defendant admitted the trespasses and was ordered to pay the plaintiff general and exemplary damages. The primary judge, however, refused to grant any remedy restraining the defendants from publishing the footage in the future. They also refused to impose a remedial constructive trust over the copyright in the footage, as well as consequent relief requiring transfer of rights in the footage and deletion of it. On appeal, the Full Federal Court granted the plaintiff a wide range of equitable remedies, including, a remedial constructive trust over the copyright in the footage, largely based on ‘unconscionability’ and the ‘moral calibre’ of the defendant’s wrongdoing. This article argues that whilst the circumstances in Farm Transparency justified an award of damages in tort, no further remedy was justified or desirable, and the Full Court’s reliance on ‘unconscionability’ or ‘the moral calibre of the wrongdoing’ was misplaced, given the absence of a relevant violated (and unremedied) legal right.
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