Waller v Barrett: Another step towards a right of action for serious invasions of privacy

Throughout 2024, the Australian Government has been progressing various privacy reforms, including the potential introduction of a statutory tort for serious invasions of privacy. This last reform is intended to address a perceived gap in Australian law.

The possibility of a tort of serious invasions of privacy has historically, been left open by superior courts, most notably in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] 208 CLR 199, in which the tort was not recognised by the High Court, but the possibility that it might be recognised in future was not foreclosed.

In the years since Lenah Game Meats, a handful of decisions have reflected conflicting judicial views on whether the Australian law recognises a cause of action of serious invasions of privacy. The most recent decision to grapple with this question, Waller (A Pseudonym) v Barrett (A Pseudonym) [2024] VCC 96, has determined it does. We consider the decision below.

Background facts

In this case all names are pseudonyms.

In 2010 Romy Barrett and his wife, Dianne, were leaving a restaurant when a man leapt out and attacked Romy with a knife. Romy narrowly survived the attack. Dianne was later found guilty of attempted murder, having planned the attack with the perpetrator, her longtime lover. Lynn Waller, the daughter of Romy and Dianne, was 13 at the time. In the years following the attack, Lynn was placed in the care of relatives and was completely estranged from her father. She developed an intense animosity towards him. Relevantly, in the years following the attack, various media outlets published material covering Romy’s story that referred to Lynn. By way of example, a 2012 edition of Marie Claire, included an article entitled “she said she loved me…then she tried to kill me”, which featured photographs of Romy and Dianne and pixelated photos of their children including Lynn.

In early 2014, Romy and Lynn attended a counselling meeting in an effort to reconcile. That meeting ended when Lynn became upset, yelling at Romy “I wish you had been killed” (Romy’s account), or “it would have been easier for me if you had died” (Lynn’s account). The events and consequences of this meeting and would go on to assume a particular importance in the context of the invasion of privacy claims.

In 2014, Romy’s story was published in a book entitled Love You to Death, written by investigative journalist, Megan Norris. As part of the pre-publicity for this book, articles about Romy’s story were published in The Age and The Sydney Morning Herald. In these articles, it was reported that Romy and Lynn had become estranged, and that they had attended a counselling meeting. It was further reported that Lynn had said that she wished Romy had been killed, but had later apologised for the remark. In fact, the Court found that Lynn had never apologised for the remark.

In September 2019, Lynn commenced proceedings against Romy, and made various claims against Romy arising out of the aftermath of the attack, including relevantly, what were referred to as the “publication claims”. These publication claims took issue with certain details relating to Lynn that had been disclosed in the aforementioned media coverage. These claims, made against Romy only (not the relevant media outlets), were made on various bases being breach of confidence, breach of statutory duty, invasion of privacy and negligence.

Breach of confidence claims

Before turning to the tort of invasion of privacy, it is necessary to consider the breach of confidence claims.

Lynn alleged that Romy’s conduct in disclosing various conversations and interactions between them to journalists, as well as the author of Love You to Death, gave rise to breaches of confidence. For example, Love You to Death disclosed that Lynn had said to Romy that she “believed [Romy] could free her mother from prison”. The Court determined that this was disclosed during a private conversation between father and daughter about deeply personal matters and had the necessary quality of confidence. It was thus a breach of that confidence to have disclosed this:

“Private conversations between a father and a deeply-vulnerable and traumatised child about personal matters should not be communicated to the press. Even, or perhaps particularly, by the father. I am satisfied that the existence and content of these conversations was information which had the necessary quality of confidence; and was conveyed in circumstances imparting an obligation of confidence.”

For some matters, the breach of confidence claim did not succeed. For example, the newspaper articles had reported that Lynn had apologised for remarks made during the counselling meeting, but in fact Lynn had never done so. The Court determined that, given the apology never occurred, there was no “information” that could have been wrongfully disclosed. As a beach of confidence claim can only offer redress for the wrongful disclosure of “information”, that claim could not succeed.

If it’s not a breach of confidence, is it an invasion of privacy?

Noting that the “erroneous”, but private, matter of the purported apology could not found a breach of confidence (because it did not constitute “information”), the Court considered whether the disclosure of such a matter could be the subject of redress through an actionable claim for invasion of privacy. Justice Tran framed the question before the Court:

“Lynn did not apologise to Romy after the counselling meeting, and that, accordingly, there cannot have been any breach of confidence in Romy stating that Lynn had apologised to him…Could, perhaps, the condition that there exists in the common law an actionable claim for invasion of privacy fill this gap?”

Lynn argued that the Australian common law should recognise the existence of a tort of invasion of privacy with the following elements based on Grosse v Purvis [2003] QDC 151:

1. A willed act by the defendant;
2. Which intrudes upon the privacy or seclusion of the plaintiff;
3. In a manner which would be considered highly offensive to a reasonable person of ordinary sensibilities; and
4. Which causes the plaintiff detriment in the form of mental psychological or emotional harm or distress, or which prevents or hinders the plaintiff from doing an act which she is lawfully entitled to do.

Why in Waller the Court found an invasion of privacy is actionable

In considering the potential Australian common law recognition of an actionable claim for invasion of privacy, Justice Tran observed from the outset that a defining feature of the common law is its capacity to “shift and develop as judges grapple with the application of existing legal principle to the infinitely varied, human and complex circumstances which come from them”. This development must be in accordance with “the common law method”, and be “incremental” and proceed “logically or analogically from other legal principles, rules and institutions”.

Justice Tran reviewed the current state of Australian common law at the starting point of Victoria Park Racing and Recreation Grounds Company Limited v Taylor and Others (1937) CLR 479. The owners of a racecourse took issue with the defendants having viewed the races from a platform they had built on an adjoining platform. In that case, no general privacy right was recognised. However, Justice Tran noted that Lenah Game Meats, as described above, left open the possibility of the existence of such a tort, and that Victoria Park should not be understood a foreclosing that possibility.

Justice Tran stated that “comfort can be taken from the fact that a tort of invasion of privacy has been recognised in two first-instance decisions in Australia:

1. Grosse v Purvis [2003] QDC 151. The plaintiff sued the defendant in relation to conduct amounting to acts of stalking. Senior Judge Skoien referred to Lenah Game Meats, and observed that statements of principle were to be found in the Courts judgments, providing guidance in the formulation of a cause of action. Senior Judge Skoien determined that while it was “a bold step to take” to recognise an actionable right of an individual person to privacy, such an action should be recognised, and identified the essential elements previously described above. Senior Judge Skoien declined to identify the type of fault required, but did state that there should be a defence of public interest.
2. Doe v Australian Broadcasting Corporation [2007] VCC 281. The plaintiff was raped by her estranged husband and the ABC had broadcast stories identifying her. Section 4(1A) of the Judicial Proceedings Reports Act 1958 (Vic) made it an offence to publish information identifying a victim of a sexual offence. Amongst other claims, the plaintiff brought a claim for breach of privacy. The Court came to the conclusion that this was an appropriate case to respond to the “Invitation” held out by the High Court in Lenah Game Meats, and held that the invasion, or breach of privacy alleged, was “an actionable wrong giving rise to a right to recover damages in tort”.

Justice Tran also referred to Giller v Procopets [2004] VSC 113, in which Gillard J said that “the law has not developed to the point where the law in Australia recognises an action for breach of privacy.” On appeal, the Court concluded it was unnecessary to determine the issue (Giller v Procopets [2008] VSCA 236). Justice Tran also undertook a “whistlestop tour” of United States and UK authority in addition, and then concluded that no binding authority excluded the recognition of a cause of action for invasion of privacy, although there is a need to proceed in this direction with caution.

Justice Tran also drew from authority in respect of the equitable wrong of breach of confidence. In particular, Justice Tran referred to Transparency Farm International Ltd v New South Wales (2022) 403 ALR 1, and specifically the description by Justice Edelman of that equitable wrong as an overarching doctrine encompassing three categories. One such category was said to be private information that is personal in the sense that it concerns dignity of the individual. Justice Tran concluded accordingly that there was already, under the umbrella of breach of confidence, a category of case recognising the value in protecting human dignity protecting information that is “confidential” on the basis of privacy concerns, which is different in scope to what is confidential for the purpose of trade secret claims.

Ultimately, Justice Tran concluded that an action for invasion of privacy forms part of the common law and that this represented a “bifurcation” in relation to breach of confidence between actions which protect confidential trade secrets, in contrast to actions protecting human dignity in privacy. Justice Tran declined to enumerate the elements of the cause of action, identify with specificity any potential defences, or express a view on whether the invasion of privacy is better viewed as an equitable or tortious cause of action. In the result, Justice Tran awarded Lynn $30,000 in damages for invasion of privacy.