Trespass footage must be deleted, but a trust over copyright goes too far

In Farm Transparency International Limited v The Game Meats Company of Australia Pty Ltd [2026] HCA 42, the High Court of Australia unanimously allowed an appeal in part from the Full Court of the Federal Court. Animal-welfare campaigners had trespassed to film inside an abattoir. The Court set aside a declaration that they held copyright in the footage on trust for the abattoir, but held that damages were not enough and ordered them to permanently delete the images they still held. All paragraph references below are to the judgment.

Why it matters: When someone films on private property without permission, the owner may want the footage destroyed and may want to stop anyone else using copies already in circulation. A court can order the trespasser to delete what they still hold if damages will not repair the continuing harm, but transferring copyright so the owner can sue third parties who were never brought into the case goes further than justice between the two parties requires.

At a glance

• Court and level: High Court of Australia (final appeal court), seven justices
• Area of law: Tort (trespass); equitable remedies; copyright
• Decision type: Appeal from the Full Court of the Federal Court, heard 5 May 2026, decided 11 November 2026
• Outcome: Appeal allowed in part (7:0). The constructive trust and assignment of copyright were set aside. A deletion order was made against the appellant, with a temporary publication restraint pending compliance. Trial damages stand
• Reasons: Gordon, Edelman and Steward JJ proposed the orders ([66]–[129]); Gageler CJ and Gleeson J ([1]–[65]), Jagot J ([130]–[185]) and Beech-Jones J ([186]–[207]) agreed
• Costs: each party bears its own costs in the High Court; trial and Full Court costs were remitted ([127]–[128])

🧩 Facts and Issues

Background

The respondent, The Game Meats Company of Australia Pty Ltd ("Game Meats"), operates a licensed abattoir at Eurobin, Victoria, processing game animals for export ([72], [130]). The appellant, Farm Transparency International Limited ("Farm Transparency"), is a not-for-profit charity that seeks to prevent animal suffering ([5], [73]).

On seven occasions between 9 January and 13 April 2024, agents of Farm Transparency entered the premises at night, installed hidden cameras and later retrieved them. Those acts were admitted trespasses, attributed to Farm Transparency ([6], [74]–[75]). Footage was compiled into a film of almost 14 minutes, which the primary judge described as "difficult to watch" and as depicting slaughter in "gruesome detail" ([7]). Farm Transparency sent the film to the Commonwealth Department of Agriculture, Fisheries and Forestry with a complaint, which the Department forwarded to Game Meats, how the trespasses were discovered ([76], [188]). A copy also went to Channel Seven, which ran a story about the contents but did not show the film ([77]). Farm Transparency posted the film on its website and removed it the same day after an interlocutory injunction was granted ([78], [189]).

How the case got here

Game Meats sued for trespass and other wrongs, and sought a declaration that Farm Transparency held copyright in the images on constructive trust for Game Meats ([79]). The primary judge (Snaden J, 19 December 2024) upheld only the trespass claim, awarding $30,000 in general damages and $100,000 in exemplary damages, but refused an injunction and a constructive trust. He found that Farm Transparency would, unless restrained, keep publishing the film to damage Game Meats' business, but he was not satisfied the harm to goodwill was "immeasurable or extreme", and he made no finding that the film clearly showed illegal conduct ([8]–[9], [67], [80]–[82]).

The Full Court (Jackman J; Burley and Horan JJ agreeing, 13 August 2025) allowed Game Meats' appeal, declared a constructive trust over the copyright, directed an assignment, permanently restrained publication (other than to the Department), required deletion of the images, and required an affidavit identifying recipients. Jackman J treated the injunctions as flowing from the trust ([10], [68], [83]–[84], [192]). Farm Transparency appealed. Game Meats, by a notice of contention, sought to keep the injunctions independently of the trust, describing "control of the images" as "the prize in this litigation" ([11], [12], [197]). Friends of the court (amici curiae) warned that a constructive trust could significantly affect third parties not before the Court ([124]).

The issues

The issues were whether damages were an adequate remedy, whether a constructive trust should be imposed over the copyright, and if not, what minimum equitable relief would do justice between the parties.

⚖️ Applicable Law – Legislation, Rules and Principles

• The Federal Court is a court of law and equity (Federal Court of Australia Act 1976 (Cth), ss 21–23) ([1]–[3]).
• Where damages are inadequate, equity may grant a restorative mandatory injunction, requiring the defendant to undo or prevent the continuing effects of a completed wrong ([30]–[32], [96]–[100], [186]).
• Equity grants the minimum relief necessary to do justice between the parties. A constructive trust should not be imposed if other orders can do full justice ([109], [136]–[137]).
• Copyright in a cinematograph film, under the Copyright Act 1968 (Cth), is a negative right to stop others copying, showing or communicating the film. The maker is the owner ([6], [13], [107], [159]).
• The Court may have regard to freedom of political communication and to the interests of affected third parties ([16]–[17], [57], [124]).

📌 Authorities Relied On

• Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, drawing on Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457: four justices suggested in remarks that were not part of the binding decision (obiter dicta) that a constructive trust over a trespasser's copyright might be available. The Court treated that as a possibility, not a rule ([50]–[55], [68], [118]–[122], [203]–[206]).
• Smethurst v Commissioner of the Australian Federal Police (2020) 272 CLR 177 and Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1: an injunction may be granted where damages cannot repair ongoing harm from a tort ([34], [96]–[99], [177]–[178]).
• John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1: affected third parties ought generally to be joined so they can be heard ([124], [138]).
• Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57: the public interest in free speech goes beyond any particular communication ([57]).

🧠 Analysis

Issue

What equitable relief, if any, should be added to the damages already awarded for the trespasses?

Rule

Damages come first. If they cannot put the injured party, so far as money can do, in the position they would have been in had the wrong not been committed, equity may grant a further order. That order must be the minimum needed to do justice between the parties before the court. A constructive trust over copyright is not to be imposed if a lesser order will suffice ([71], [109], [136]–[137], [173]–[175]).

Application

Damages were not enough

The trial awards addressed the trespasses themselves, not the consequences of further publication of the film ([82], [102]). Unless restrained, Farm Transparency would keep publishing the film in order to damage Game Meats' business ([8], [80], [172]). Gordon, Edelman and Steward JJ, and Jagot J, held that harm to Game Meats' goodwill and to the continuation of its statutory licence was likely, real, not trivial, and not adequately met by money. The primary judge's demand for "immeasurable or extreme" damage set the bar too high ([81], [103], [177], [179]–[183]). A restorative mandatory injunction can be granted to reverse or prevent the continuing effects of a completed tort where damages are inadequate, and is not limited to enforcing a continuing legal right ([96]–[100], [186]).

A constructive trust over copyright was a step too far

The question was not whether a constructive trust over the copyright could have been declared, as contemplated in Lenah Game Meats, but whether it should have been ([55]–[56], [68], [165]). No institutional constructive trust arose when the film was made. Unlike stolen property, the copyright was not taken from Game Meats; it arose in Farm Transparency as the maker of the film, under the Copyright Act. Analogies with theft, mistaken payments or failed joint arrangements were not close ([114]–[117], [167]–[168]). A remedial constructive trust remains possible in an appropriate case, but it was not appropriate here ([118]–[122]).

The "prize" of the trust was the ability to sue people who were not parties, including the Commonwealth (through the Department) and Channel Seven, and other recipients who were never joined or heard ([15]–[17], [69], [138]). That went beyond what was needed to do justice between these two parties, and it could interfere with a regulator's functions or a news organisation's use of material already received ([17], [124]–[125], [195]–[196]). Freedom of communication, including on animal welfare as a political concern, also counted against the wider remedy ([16], [57], [60]). This was not a case with no possible public interest in publication, even though the primary judge did not find it "clear" that the film showed illegal conduct ([125], [169]). Intersection with statute, including the Privacy Act 1988 (Cth), was barely explored ([126]). The Full Court inverted the proper sequence, declaring the trust first without asking what minimum order would do justice between the parties ([56], [137], [166], [195]).

The minimum remedy is deletion, not a permanent publication ban

The sufficient order is a restorative mandatory injunction requiring Farm Transparency to delete or destroy all images obtained from the hidden cameras that are in its possession or control, including any copies that later come into its hands; to file an affidavit of compliance within 14 days of each deletion; and, pending compliance, not to publish those images ([61], [71], [105], [185]). A permanent publication ban was unnecessary: Farm Transparency had honoured undertakings during the litigation, and a continuing duty to delete would cover any copies later re-obtained. The discovery affidavit identifying recipients was set aside ([62]–[63], [105]–[106]). The deletion order does not bind the Department or Channel Seven, and it does not stop Farm Transparency making further submissions to the Department or commenting publicly on what the film depicted ([104], [184], [199]).

Conclusion

All seven justices held that the Full Court was wrong to declare a constructive trust and to order an assignment, and that Farm Transparency must nonetheless delete the images it still holds. Differences among the reasons go to emphasis, not to the orders. Beech-Jones J, agreeing in the orders, did not treat Lenah Game Meats as establishing a rule that such a trust arises, or must be imposed, in circumstances such as these ([197], [203]–[206]).

🏛️ Outcome, Orders and Costs

The appeal was allowed in part. The trial awards of $30,000 in general damages and $100,000 in exemplary damages were not disturbed. Each party is to bear its own costs of the High Court appeal ([127]). The Full Court's costs orders of 25 September 2025 were set aside and remitted ([128]).

🧭 Practical Lessons

• For self-represented litigants: Trespass remains a civil wrong even where the entrant believes they are exposing mistreatment of animals or other wrongdoing. A court can award substantial damages, including exemplary damages, and can order destruction of footage still in the trespasser's hands.
• For practitioners: Ask first whether damages are adequate, then mould the minimum equitable relief that will do justice between the parties before the court. Do not reach for a constructive trust over copyright if a deletion order against the defendant will suffice. If the relief will affect third parties, those people generally need to be joined so they can be heard.

🧠 Take-Home Lesson

• Equity can make a trespasser destroy the footage they still hold, if money will not fix the ongoing harm.
• It will not, at least on these facts, transfer copyright so the landowner can control what everyone else does with copies already in circulation.

"A constructive trust ought not to be imposed if there are other orders capable of doing full justice."

This digest is general information about a published judgment, not legal advice. For advice about your own situation, speak to a lawyer, Legal Aid or a community legal centre.