By: Patrick Thompson

At a glance

• In Lynn Waller v Romy Barrett [2024] VCC 962, the plaintiff successfully argued that the defendant breached her confidences and invaded her privacy by disclosing private details from counselling sessions to media outlets, leading to damages awarded.
• Judge Tran recognised a distinct cause of action for invasion of privacy in Australian common law, noting that privacy is a fundamental right requiring separate protection from the traditional breach of confidence.
• This case sets a significant precedent for privacy rights in Australia. Whether or not the decision survives appeal, it will contribute to an ongoing public conversation regarding the need for legal protections against non-defamatory yet highly personal disclosures.

Lynn Waller v Romy Barrett [2024] VCC 962

The plaintiff is the estranged daughter of the defendant.

In 2010, the defendant was the victim of a violent stabbing attack in which his throat was cut. His wife at the time (the plaintiff’s mother) was charged with his attempted murder. She had arranged for the attacker, her lover at the time, to murder the defendant. She was convicted and sentenced to 12 years’ imprisonment.

Years passed after the attack. The plaintiff and her father (the defendant) became estranged. She lived with her mother’s family. She took her mother’s side. She made disclosures about alleged sexual abuse by her father before the stabbing. She became deeply mentally unwell. She attempted self-harm. Her father gave interviews, contributed to a book written about his story (Love you to Death: A Story of Sex, Betrayal and Murder Gone Wrong).

The proceedings

The plaintiff sued her father for, inter alia, breaching confidences, invasion of privacy, and negligence in relation to five publications in Marie Claire, The Age, the Sydney Morning Herald, and the book (the publications). The matter was heard in the Victorian County Court before Judge Tran.

The plaintiff also sued for breach of fiduciary duties and restitution for the way the defendant went about accessing his former wife’s property, purportedly on behalf of the plaintiff as well as himself. This casenote will not touch on this aspect of the judgment.

Other causes of action

The plaintiff sued the defendant as to the publications in various ways.

Breach of statutory duty

She first alleged the publications breached an ‘intervention order’ made by the Victorian Magistrate’s Court in 2011. The trial judge accepted the defendant had breached the Court’s orders, but did not accept a breach of these orders conferred a private civil cause of action for damages. Instead, there are specific statutory remedies including criminal punishments.

Negligence – a duty of care not to say harmful things?

The plaintiff also sued in negligence. She accepted the duty of care contended for was novel, but said certain salient features existed, within the meaning of Caltex Refineries (Qld) Pty Limited v Stavar, so as to give rise to a duty of care. The trial judge accepted the defendant knew, or ought to have known, that his daughter might suffer damage if he made the disclosures. But something more than foreseeability was required before a duty of care would be found.

The trial judge was reluctant to find a duty existed, because of the potential widespread precedential nature of such a duty: “For example, is a newspaper to be held liable for publishing some (true, but) detrimental report about a person that they have reasonable grounds for believing will cause that person psychiatric injury? Is a school teacher to be held liable for providing a negative school report; or a public speaker to be held liable for talking of sexual abuse, knowing that a sexual abuse victim in the audience might be triggered as a result?”

The trial judge was unwilling to accept that a duty should be found on the defendant to take reasonable care not to make public statements about his daughter that may cause her psychiatric injury.

Breach of confidence

The plaintiff sued in equity for breach of confidence. The plaintiff had the onus of proving that: (1) there was some information with the necessary quality of confidence, (2) the information was imparted to the defendant in circumstances importing an obligation of confidence, and (3) the defendant used the information in an unauthorised manner.

The trial judge found that certain pieces of information (but not all) in the disclosures had the sufficient quality of confidence, and were disclosed by the defendant in an unauthorised manner. This included information disclosed by the plaintiff in counselling meetings. The trial judge held: “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.” 

The plaintiff’s claim succeeded for breach of confidence. However, her claim succeeded on a narrow basis in terms of only certain information that was true, and did not ‘cover the field’ of her father’s disclosures (some of which were untrue). The question remained whether there exists in the common law an actionable claim for invasion of privacy, which might cover that gap.

The novel tort of privacy

The trial judge noted that while the High Court made comments in Victoria Park Racing and Recreation Grounds Company Limited v Taylor and Others [1937] ALR 597 which strongly suggested a cause of action for breach of privacy did not exist, the High Court had tempered that line of authority in ABC v Lenah Game Meats Pty Ltd [2001] HCA 63. In that case, Gummow and Hayne JJ (with whom Gaudron J agreed) held that Victoria Park does not “stand in the path” of the development of a tort of unjustified invasion of privacy. However, on the facts of that case, the plaintiff (a corporation) had no right to privacy).

The trial judge had regard to other first instance decisions since Lenah which had considered the tort of privacy. It was noted that the concept had received some limited judicial recognition at first instances in two other cases (Grosse and Doe v ABC), and that other decisions which had not recognised the tort had not categorically ruled out its existence.

Her Honour had regard to the tort’s existence in New Zealand, Canada and the United States.

Taking stock of all of these authorities, her Honour concluded that no binding authority excludes the recognition of a cause of action for invasion of privacy and, on the contrary, Lenah Game Meats confirms that the development of a tort of invasion of privacy is open. However: “there is also a thread of caution running through each of the judgments delivered in that case – an emphasis on the need to ensure that any such development be in accordance with the common law method.” 

The trial judge then considered whether the recognition of an actionable wrong of invasion of privacy could be viewed as an incremental development of the existing action for breach of confidence. She concluded that it was in effect just an extension of the existing tort, rather than a new cause of action cut from whole cloth.

Her Honour then went on to consider whether it was desirable that the common law should recognise the tort. She concluded that it was, for the following reasons.

First, it was a category of confidence founded on the fundamental right to privacy, and protected human dignity and autonomy, rights and values. The breach of confidence tort, in its current form, is ill suited to protect of these values. And: “where two categories of case are based on such fundamentally-different underlying values, it makes sense to deal with them quite separately.” 

Secondly, separating the tort of privacy from the tort of breach of confidence would, in Her Honour’s view, bring the law into coherence. There would no longer be a need to strain the meaning of the word “confidential” and “public”, as was done in AFL v The Age (where drug test results were publicised, and which was found to be breach of confidence).

Thirdly, separating the torts would also ensure the principled development of each tort in accordance with the underlying values that underpin both.

Fourthly, further, in Her Honour’s view, the recognition of the tort accords with the shift towards the more explicit international recognition of the importance of privacy as a fundamental human law right.

Fifthly and lastly, the trial judge held that the recognition of the tort would not bring the law it incoherence, or conflict with other causes of action. The tort of defamation and injurious falsehood will protect one’s reputation against false statements. The tort of negligence will protect against the infliction of injury where a duty of care is owed. And equitably actions outside breach of confidence will focus on protecting proprietary interests or the sanctity of certain relationships (like fiduciary ones).

Her Honour concluded:

In conclusion, it should be recognised that an action for invasion of privacy forms part of the common law of Australia. Although historically this action has been housed under the overarching doctrine of breach of confidence, it is better viewed as separate and distinct from the action for breach of confidence. This does not amount to the creation of a tort, but rather a recognition of the bifurcation which has developed in relation to the action known as breach of confidence, between actions which at their heart protect confidential trade information; and actions (available only to natural persons) which at their heart protect human dignity in privacy. It is proposed to elucidate that bifurcation, by renaming the latter category as an action for invasion of privacy.

Judge Tran declined to state the elements of the cause of action, beyond concluding that: it would be available, at a minimum, in circumstances where a defendant discloses or makes public private matters in circumstances that a reasonable person, standing in the shoes of the claimant, would regard as highly offensive.

The trial judge also declined to take a view as to the availability of defences to such a cause of action, preferring them to grow incrementally as cases progress.

Applying these principles to the instant case, Her Honour found that the defendant had breached the plaintiff’s privacy by disclosing what the plaintiff had told him in counselling sessions, even where he had made up / lied about some aspects of the disclosures. Her Honour noted it should not be necessary, to succeed in breach of privacy, to prove that the information disclosed was “true”.

The trial judge awarded the plaintiff $30,000 for the breach of privacy, and $10,000 for damages for breach of confidence. No aggravated or exemplary damages were awarded. In reaching this conclusion she posed the following hypotheticals:

This quote foreshadows another important rationale for extending the action for invasion of privacy in this manner. The world in which we now find ourselves is one of deepfakes, including deepfake pornography; a decline in market share of big media; and the pervasive, “democratising” force of social media. To establish their privacy has been invaded, is a plaintiff to be required to prove that a sex tape is “real”? Must a plaintiff suing because a viral social media post is written concerning their sexual preferences, first establish, by admissible evidence, their sexuality? If the social media post is false, or the video a fake, is a plaintiff’s only recourse the law of defamation? What if the matters disclosed are intensely private, but not defamatory?

Implications

While this is not the only first instance decision in Australia to recognise a tort of privacy (as the judge herself noted), it is the first decision to attempt this so expressly and in such a considered way.

It remains to be seen whether this first-instance decision by a County Court judge will survive scrutiny. However it is still a major development in the law, as it will bring about likely appeals to the Victorian Court of Appeal and, potentially, the High Court, which will be asked to rule on the existence of the tort. Even in the absence of an appeal from this case, the decision can be expected to spark further consideration in other cases, and the issue will likely ventilate its way to the High Court soon enough.

The upshot of such litigation, whatever the result, can be expected to bring about a further public conversation about whether there ought to be a tort of privacy. Even should appellate Courts ultimately reject the reasoning in this case, the issue will return to the public forum, which might ultimately lead to law reform and the potential existence of a statutory right of privacy. This would be consistent with other statutory reforms already on the table: see for example the Privacy and Other Legislation Amendment Bill 2024 (Cth).