After a gap of nearly twenty years, another judge of the County Court of Victoria has recognised the existence of a common law tort for the invasion of privacy in Waller (a pseudonym) v Barrett (a pseudonym) [2024] VCC 962 (‘Waller’). This represents a striking development in the common law of Australia and, notably, arose only weeks before the Second Reading of a Commonwealth Bill that proposes to introduce a statutory tort for serious invasions of privacy into Australian legal landscape.
If the statutory tort becomes law, Judge Tran’s exploration of the scope of ‘privacy’ will at the very least provide an expansive exploration into the reach of the new tort. However, deficiencies in the proposed statutory tort may also mean that the possibility of the tort developing at common law offers a necessary and vital parallel course.
Facts
The claim by the plaintiff, Lynn Waller, eventuated as the tragic and upsetting consequence of a plot that appears lifted from an episode of any daytime soap opera. Romy Barrett and Dianne Barrett were leaving a restaurant one evening in 2010 when Romy was ferociously and unexpectedly attacked by a knife-wielding man. The assailant stabbed Romy six times and slit his throat before fleeing the scene. It was only through the timely first aid of two nearby doctors that the victim was able to survive the vicious ordeal. What quickly emerged, however, was that this was no surprise attacked. Instead, Dianne had arranged the attack, and the stabber was her secret lover, intent upon freeing her to start a new life ([1]-[4]).
In the aftermath of the attack, and with the victim recovering in hospital and Dianne in custody, family of both Romy and Dianne stepped in to assist with the care of the couple’s three children. The plaintiff, Lynn, was the eldest daughter of the couple. When Romy returned home from hospital, Lynn remained with her maternal grandparents. Over time, and following various allegations and the imposition of intervention orders, Lynn and Romy became estranged ([6]).
Media attention was understandably high for details of this ordeal and, in 2012, Romy participated in a series of interviews with news outlets and agreed to co-author a book. The publication of this book in 2014 brought renewed attention and another series of articles, including in The Age and Sydney Morning Herald, that spoke to the details of Romy and Lynn’s difficult relationship and attempts to reconcile that occurred between them in the years since the incident ([18]-[35]).
The claims
Lynn brought a series of claims against her father in the County Court of Victoria. For the purposes of this case note, the relevant claims concerned the publication of the articles and the book. Lynn claimed that Romy had breached his statutory duty to comply with the IVO, had committed the tort of negligence, had acted in breach of confidence, and had committed an invasion of privacy by providing the information to the news providers and for the book ([162]).
Her Honour considered that there was no basis in the family violence legislation for a private right of action for damages following a breach ([181]-[188]). Similarly, it was not considered reasonable to impose a novel duty of care on Romy to not make public statements about his daughter that may cause her psychiatric injury ([200]-[202]). The claim for breach of confidence was more successful and her Honour outlined her reasons in a meticulous and detailed table for finding that there had been a breach for many of the 13 items ([209]). However, her Honour considered that ‘Item 3’, which was a claim by Romy in the news articles that Lynn had apologised to him, did not fall within the equitable action as it was not true and therefore could not constitute confidential ‘information’ ([209]). This represented a ‘gap’ in the doctrine of breach of confidence ([232]), where a statement purported to disclose private information, but was factually incorrect ([238]).
Tort for the invasion of privacy
Judge Tran therefore contemplated whether an actionable claim for an invasion of privacy could fill that lacuna ([232]). Her Honour commenced by exploring the potential for a cause of action to develop at the common law and embarked on a self-described ‘whistlestop tour’ through the history of privacy protection in Australia ([266]), traversing the decision of Victoria Park Racing & Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 that was seen to deny any further development until the arrival of Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, and the development of privacy in the UK, US and New Zealand. Her Honour also took comfort in knowing that there had previously been recognition of the tort in Queensland and Victoria (See Grosse v Purvis (2003) Aus Tort Reports 81-706 and Doe v Australian Broadcasting Corporation [2007] VCC 281). This left Judge Tran satisfied that the common law allows for the incremental development of legal principle and that the development of a tort for invasion of privacy is open in Australia along the same lines as in the UK.
Judge Tran therefore considered that any protection of privacy would have to find its foundation in the equitable action for breaches of confidence. Specifically, the scope for privacy protection is within the ‘third category’ of breach of confidence, as identified by Edelman J in Farm Transparency International Ltd v New South Wales (2022) 403 ALR 1, which protects private information concerning ‘human dignity’ ([293]). Judge Tran reasoned that this category was restricted to individuals, which is in line with High Court authority in Lenah Game Meats, but is broader than an ordinary understanding of ‘confidential’ and allows for different remedies, including for mental distress ([297]). Her Honour therefore concluded that there was a ‘compelling’ case for freeing this category from the broader umbrella of breach of confidence in order to reflect the underlying and distinct ‘value’ that is privacy and allowing the cause of action to better develop in a principled way to protect those values ([298]-[208]). This, in turn, would explicitly recognise privacy as a ‘fundamental common law right’, an ‘increasingly urgent need’ ([310]-[312]).
Her Honour declined to define the essential elements of the action, however she considered that, at a minimum, a remedy ought to be available for ‘the making public of private matters in circumstances that a reasonable person, standing in the shoes of the claimant, would regard as highly offensive’ ([318]). Her Honour also avoided the question of defences or damages.
Applying this to the facts, Judge Tran considered that the ‘incremental step’ available to her was to accept that there could be an actionable breach of privacy where there was the disclosure of factually incorrect information ([322]). Here, her Honour expanded the reach of privacy law in a way that is arguably novel and undoubtedly intellectually scintillating. Judge Tran advocates for an understanding of ‘privacy’ that extends beyond the mere protection of ‘information’ or what was said, and instead encapsulates ‘that the private sphere was made public, and the dignity of the person violated’. That is, that the cause of action is ‘not so much protecting specific information, but rather as maintaining opacity, or a private sphere’ ([330]). This, in turn, could extend to the publication of a person’s sexuality, even if false, or the publication of a deepfake and deepfake pornography ([324]). Thus, the sharing of an email from Lynn by Romy that formed the basis for an incorrect impression that she had apologised to him was a breach of Lynn’s private sphere. After balancing this invasion against Romy’s right to free speech, her Honour awarded Lynn damages of $30,000.
Comment
There are several ways to look at this decision. As noted by Judge Tran in the judgment, there was recognition of a tort for invasions of privacy in the lower courts of Victoria and Queensland over twenty years ago. Another County Court decision does little to advance the cause of action in Australian law, and it obviously remains to be seen if there will be an appeal in this matter such that a superior court will have the opportunity to consider the development of the tort. As a result, the fact that it has taken so long for another case to successfully raise the tort, and a case that involves such outlandish facts, perhaps demonstrates the unlikelihood that there will ever be plaintiffs well-resourced enough to develop the tort at common law. This differs markedly from the UK, where the tort has developed through the dogged litigation of celebrities, models and royals. For a full discussion of why the tort has not developed in Australia, , I refer to David Rolph, ‘Australian Broadcasting Corporation v Lenah Game Meats (2001)’ in Paul Wragg and Peter Coe (eds), Landmark Cases in Privacy Law (Hart, 2023), 131.
This in turn may indicate that the tort will only reasonably develop through the actions of the legislature, especially if it is seen to be so urgently needed. As mentioned at the beginning of this note, this judgment comes at a time when the government is considering submissions on a proposed bill that will introduce a tort for serious invasions of privacy. Judge Tran’s ruling may fall quickly by the wayside or, alternatively, her Honour’s expansion of the ‘sphere’ of privacy may provide a useful precedent for the when a plaintiff can assert that they had a ‘reasonable expectation of privacy’ (the test favoured in the legislation). The conception of privacy favoured by Judge Tran undoubtedly extends beyond any understanding expressed in comparable jurisdictions and holds out the prospect of very flexible cause of action.
Perhaps most encouragingly, further recognition that the tort exists in Australia may demonstrate an alternative and possibly even parallel cause of action for invasions of privacy. The tort proposed by the legislation contains a broad exemption for invasions of privacy in pursuit of ‘journalistic material’ by ‘journalists’ under cl 15 of Schedule 2 of the Privacy and Other Legislation Amendment Bill 2024 . This media exemption will hobble the cause of action before it commences, blocking off many of the claims that have arisen in foreign jurisdictions. This exemption has been broadly opposed by many leading academics and practitioners (including Normann Witzleb, Megan Richardson, Damian Clifford [Submission 12], Emeritus Professor Barbara McDonald and Professor David Rolph [Submission 27], Lisa Archbold, Mark Burdon, Tegan Cohen, Henry Fraser [Submission 34], Michael Rivette [Submission 52] and Dr Michael Douglas [Submission 54] and all available at Submissions – Parliament of Australia). It remains to be seen whether there is the appetite for the Bill to be enacted or if it will ‘cover the field’ for privacy claims. In the event that the Bill is passed in its current form, the recognition that there is a common law remedy already in existence in Australia, and (at this point) without the short-sighted media exemption, means that the development of the common law tort may remain a vital and alternative course of action for the cause of action.
Tom Carmody is an Associate at the Supreme Court of Victoria and an LLM candidate at the University of Melbourne.
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