Victorian Court Recognises Invasion of Privacy as Actionable Right, Awards $30,000 in Damages

Waller (a pseudonym) v Barrett (a pseudonym) [2024] VCC 962 

Summary  

The Victorian County Court has recognised invasion of privacy as an actionable right under Australian common law which allowed the plaintiff to obtain relief for harm caused by information disclosed but not otherwise captured by alternate causes of action.  

Facts 

The plaintiff is the estranged daughter of the defendant. In 2010, the defendant survived a stabbing attack orchestrated by his then-wife (the plaintiff’s mother). Following this, the defendant shared his story in interviews with various media publications and contributed to a book about the incident. These publications included information about the plaintiff, and she commenced proceedings for breach of statutory duty, negligence, breach of confidence and invasion of privacy. She also sued for breach of fiduciary duties and restitution (not discussed here).  

Decision 

Breach of statutory duty 

The Court held the publications breached a 2011 intervention order, but this did not give rise to damages under section 123 of the Family Violence Protection Act 2008 (Vic).  

Negligence 

The plaintiff brought a claim for mental harm caused by the defendant’s negligent disclosure of her private information. She acknowledged the claim was novel but argued that a duty of care to prevent such harm should be recognised in the circumstances, considering the salient features outlined in Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649. 

The Court accepted it was reasonably foreseeable publicity involving the plaintiff would cause her psychiatric injury however this alone was insufficient, and the Court declined to impose a duty of care, citing the potential for far-reaching precedential consequences. 

Breach of confidence 

The plaintiff sued in equity for breach of confidence. The Court found only some information in the Publications constituted a breach including details from the parties’ counselling sessions. It emphasised that private conversations between a father and a deeply vulnerable child about personal matters should not be shared with the press.  

The claim succeeded on a limited basis and did not cover all of the defendant's disclosures (including the false statement that the plaintiff had apologised to the defendant). The question therefore remained whether there exists an action for invasion of privacy under Australian common law to fill this gap. 

Invasion of privacy  

The Court considered whether, consistently with the common law method, an actionable claim for invasion of privacy could be identified to remedy the plaintiff.  

First, it considered the current state of Australian case law regarding the existence of a tort of privacy. For decades, Victoria Park Racing and Recreation Grounds Company Limited v Taylor and Others (1937) 58 CLR 479 was seen as rejecting the recognition of a tort of invasion of privacy in Australian common law. However, Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] 208 CLR 222 left open the possibility of its future recognition, which has since received limited judicial acknowledgment in Grosse v Purvis [2003] QDC 151 and Doe v ABC [2007] VCC 281. The Court acknowledged the tort had not been definitively ruled out but emphasised the “thread of caution” in Lenah Game Meats and Giller v Procopets (2004) VSC 113, advocating for any development to align with the common law method and encouraging the evolution of existing causes of action [278]. 

Second, the Court reviewed approaches in other common law jurisdictions, noting their recognition of privacy actions offers some guidance but does not justify inventing a new tort and caution is required. Current approaches include: 

  • New Zealand recognises torts of wrongful publication of private facts and intrusion into seclusion. 

  • United Kingdom recognises tort of misuse of private information. 

  • Canada’s views on common law privacy torts vary by province. Ontario specifically recognises the torts of wrongful publication of private facts and intrusion into seclusion. 

  • United States recognises torts of giving publicity to private life and intrusion upon seclusion. 

The Court then examined whether acknowledging a private right of action for invasion of privacy constitutes an 'incremental development' of the breach of confidence action and, if so, whether it should be recognised in Australian common law. 

The Court found that such an action already exists as one of the branches of the equitable doctrine of breach of confidence. Recognising this branch as part of the common law and renaming it as an action for ‘invasion of privacy’ would be an incremental development of the doctrine. Tran J held this does not create a new tort. Rather, it recognises the action which seeks to protect human dignity and privacy as separate and distinct from that which protects confidential trade information. 

Recognising this existing category as a standalone cause of action is compelling because, inter alia, it: 

  • aligns with the common law method; 

  • distinguishes categories with different underlying values; 

  • reflects privacy as a fundamental common law right; 

  • addresses the urgent need for digital-age privacy protection; and 

  • safeguards an interest not protected by existing torts. 

The Court did not define the action’s elements but held relief should apply, at a minimum, to public disclosures of private matters, highly offensive to a reasonable person in the circumstances. It also declined to express a concluded view on whether the action lies in tort or equity, noting there is “some force” in the view the action belongs in tort but historically damages for mental distress have been available in equity [320]. 

Finally, the Court considered whether the action responds to the current situation and found the plaintiff was entitled to $30,000 in damages for the invasion of privacy, regardless of whether the action lay in tort or equity.  

Commentary 

The judgment recognises invasion of privacy as an actionable right under common law, highlighting the importance of protecting human dignity and personal autonomy. It sets a precedent for safeguarding privacy in Australia, particularly in cases where clearly private information is publicly disclosed. However, further consideration by higher courts is required to carefully define its scope. 

In Victoria, section 13 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) protects against arbitrary interference with a person’s privacy by public authorities. There is also no independent cause of action and no right to damages for breach of this right. This case strengthens the protection of the right to privacy in Victoria by providing an action for invasion of privacy which can be brought against private individuals and public authorities. It also provides access to damages providing an effective remedy as required by international human rights law.

Case note prepared by Grace Forbes Law Graduate at Hall & Wilcox 

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