The Court held that there was no reasonable means of preventing the widespread distribution and publication of Woman's Day, the magazine containing the photographs. The fundamental principle was that orders for injunction should only be made where they can be enforceable or where they can reasonably achieve the objective which was intended.
Pembroke J commented that
At a final hearing, the plaintiff may, in due course, be entitled to recover substantial damages for breach of confidence. The issue for me is whether, assuming that there is a serious question to be tried, there is any utility in granting the injunction sought by the plaintiff in the circumstances that have transpired. Those circumstances persuade me that it is now too late to issue the injunction which the plaintiff seeks.
It may well be that the defendant has acted hastily, possibly even flagrantly, knowing of its potential liability to the plaintiff for breach of confidence. I need not decide that. But the practical reality is that no reasonable means of preventing the widespread distribution and publication of the Woman's Day magazine containing the offending photographs was revealed to me.
Indeed, the submissions as to what should be done bordered from time to time on the surreal. Woman's Day has approximately 27,870 subscribers who receive the issue by post. The defendant uses a third party mail house to bag, label and lodge subscription copies with Australia Post. The postal subscription copies were received by the mail house at approximately 9am on 19 July and were lodged with Australia Post at approximately 2.30pm on that day. Those postal subscription copies are in the course of distribution and there is no practical means by which the defendant can retrieve them from Australia Post.
A variety of speculative submissions was put to me as to what might be done to endeavour to prevent the distribution to subscribers of 27,870 copies of the magazine. I cannot see how that can be achieved and I cannot see how I can make any sensible, practical or useful order that might assist that objective.
In addition to the postal subscription process, the Woman's Day magazine is distributed to approximately 5,000 retail outlets across Australia. After copies of the magazine are bound, they are transported by contractors by road to distribution centres in each state to ensure the magazine is available for sale by retailers on Monday morning. Except for New South Wales and Victoria, each distribution centre throughout Australia is operated by an independent contractor and is not controlled by the defendant. At the distribution centres copies of the magazine are packed and labelled for further distribution to individual retailers according to the quantity required by those retailers. Some of those bundles only contain copies of the Woman's Day magazine, but many of them contain a number of different magazines published by various publishers. Furthermore, to make any attempt to stop the process even more difficult, distribution to retailers is carried out by a range of different contractors and sub-contractors, none of whom was able to be identified in the evidence.
The process of distribution has occurred in all States at different rates of progress. In Queensland country areas, copies of the magazine were dispatched to the Queensland distribution centre at approximately 5pm on 19 July. Packing of the magazine into retailer bundles commenced at 11am this morning and the magazine has commenced to be transported from the distribution centre to individual retailers throughout Queensland including in mixed bundles. Naturally, it was not possible to identify the retailers to whom the retailer bundles have been transported. Nor was it possible to identify the contractors and sub-contractors engaged in that process of transportation.Pembroke J went on to state that
I make it quite clear that the conduct of the defendant is disdainful. It clearly puts a premium on its own commercial advantage ahead of the privacy of the plaintiff. I have no doubt that not all publishers would have acted in the same way. This is particularly so given that the licensor to the defendant notified it that it had chosen to withdraw its licence. The licensor assumed wrongly, it now turns out, that the publication of the photographs by the defendant would not subsequently occur.
Pragmatic Considerations
The question which reluctantly causes me to refuse the application is a pragmatic one. There is a fundamental principle under which this Court operates. That principle is that orders should only be made where they can be enforceable; where they can reasonably achieve the objective which is intended. If orders are made which lack utility, the effect will be to reduce the respect of the public for orders of the Court. There is simply no point making orders which are futile in the circumstances.
I do not accept the argument that in some way it is a ground for granting the injunction, that by making orders the Court may at least reduce the number of copies of the magazine containing the photographs which are distributed to the public. On the evidence before me this afternoon, over 100,000 copies of the magazine will be distributed. It is impossible to see how any of them could be prevented from being read and disseminated. If the objective of the plaintiff is to protect her own opportunity to reveal the fact of her pregnancy at a time of her choosing, then that opportunity has been lost by the events which have occurred. There is no point in restraining the defendant from further distributing copies that remain as part of the print run for this issue.
I make it clear that I am abundantly satisfied there is a serious question to be tried as to the plaintiff's underlying cause of action. She will, however, have to address that cause of action in a claim for damages. The conduct of the defendant, having had notice since 18 July of her claim, may well be regarded as exacerbating the situation. It may well enhance her claim for damages. That will be a matter for the judge at a final hearing.
