The Federal Court, and certain other courts besides, has an auxiliary or supplemental jurisdiction to provide an equitable remedy when determining a claim at law. A recent decision of the High Court considered the scope of that power, or, more particularly, the way in which the power should be exercised in limiting any equitable remedy to the minimum required to do justice in the case. In doing so, the High Court has pointed to the relevance of public policy and a consideration of third-party rights when formulating equitable relief.
The facts
On the facts leading to the decision in Farm Transparency International Ltd v The Game Meats Company of Australia Pty Ltd,[1] an animal welfare organisation, Farm Transparency, had accessed an abattoir and obtained footage of the goings-on.
Game Meats, the operator of the abattoir, sued Farm Transparency in the Federal Court for trespass. The Court, on first instance, found that Game Meats had established its case for trespass. While acknowledging that Farm Transparency owned the copyright in the footage it obtained, the Court found that unless permanently restrained from doing so the organisation would seek to publish the footage for the purpose of damaging Game Meats’ business. The judge however refused to grant equitable relief by way of a declaration of trust over the copyright in the footage or by an injunction requiring the destruction of the footage. The judge instead awarded damages, including exemplary damages, holding that such things were the only remedies to which Game Meats was entitled in its action for trespass.
On appeal, the Full Court of the Federal Court upheld the trial judge’s decision but made an additional order declaring that Farm Transparency held the copyright in the footage on constructive trust for Game Meats together with other consequential orders.
Farm Transparency appealed to the High Court, seeking to overturn the declaration of trust over the footage and the other consequential orders of the Full Court.
Before the High Court
The High Court allowed the appeal and varied the orders of the Full Court. In separate judgments but unanimous in the result reached, the Court considered that the ‘sufficient and appropriate equitable remedy’[2] in the circumstances of the case was limited to an injunction requiring Farm Transparency to delete all footage that remained in its possession or control, that being one of the orders made by the Full Court consequential upon its declaration of a trust.
The Chief Justice and Gleeson J, in a joint judgment, identified the issue as concerning
the permissibility and appropriateness of providing an equitable remedy to an injured party, by way of either the declaration of a constructive trust or the ordering of a restorative injunction, to redress ongoing damage which has been found to have resulted from a completed trespass to property which has been found to have occurred.[3]
In considering the scope of equitable jurisdiction to make appropriate orders in a case, their Honours noted that ‘the granting or withholding and conditioning of an equitable remedy is inherently an exercise of discretion’.[4] Their Honours noted that while a constructive trust was available as an equitable remedy such remedy should not be imposed if there were ‘other orders capable of doing full justice’ between the parties.[5]
Their Honours noted:
The consideration is that, in choosing an appropriate equitable remedy from the ‘armoury of equitable remedies’ available to be deployed and in tailoring that remedy to the circumstances of the particular case, a court of equity will seek to ensure that such equitable remedy as it determines to grant is within the ‘limits set by the purpose which it can properly be intended to serve’ and is ‘the minimum relief necessary to “do justice” between the parties’. This means that the court will in principle seek to ensure that such equitable remedy as it grants is no more intrusive on rights and freedoms recognised by the common law than is appropriate to achieve the purpose of its grant.[6]
In formulating an appropriate remedy, their Honours were particularly concerned about a situation where a constructive trust would be injurious to third parties; in addition to the ‘spectre’ of future litigation if the remedy in respect of a constructive trust over the copyright were to stand, it also was the case that ‘[t]he potential impact on the common law freedom of communication of [third parties who might come to access the footage], and in turn on political communication and on the public interest in free speech, cannot be ignored and cannot be gainsaid’.[7] These matters seem to have been part of what their Honours described as the ‘constitutional context’.[8] Justices Gordon, Edelman and Steward, giving a joint judgment, appeared to agree and noted further the ‘complex issues concerning the intersection between general law remedies and statute law’ including, in particular, the (relatively nascent) statutory tort of serious invasion of privacy.[9]
The various separate judgments of the High Court agreed with the orders proposed by Gordon, Edelman and Steward JJ in a joint judgment including, relevantly, an order that in lieu of the Federal Court’s order for a constructive trust over the copyright in the footage there should be an order that Farm Transparency permanently delete or destroy the material it possessed or controlled and which it might come to possess or control in future.
Comment
On one view, the High Court’s decision concerns the formulation of an appropriate response, in equity, to the particular wrongdoing involving the parties: trespass, the obtaining of footage the subject of copyright, the risk of recurring dissemination, and injury to the affected party. The analysis of what would be a remedy sufficient to ‘do justice’ in that case turned on its own facts.
More broadly, however, the Court’s comments about the need to restrict an equitable remedy to whatever would be least intrusive on rights and freedoms, including, here, third-party rights and freedoms, arguably stands for a principle capable of extending to cases involving other forms of wrongdoing, other facts, and other formulations of equitable remedy.
[1]: [2026] HCA 42.
[2]: Ibid [18].
[3]: Ibid [4].
[4]: Ibid [27].
[5]: Ibid [45], quoting John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1, 45 [128].
[6]: Farm Transparency International Ltd v The Game Meats Company of Australia Pty Ltd [2026] HCA 42, [26] (citations omitted) (emphasis added).
[7]: Ibid [60].
[8]: Ibid [57].
[9]: Ibid [126].