Opinion
Waller v Barrett – at last! The internationally recognised tort of invasion of privacy finally becomes proper Australian law
12th Dec 2024
The case of Waller v Barrett is an intriguing step forward in the common law and for the first time in Australian law establishes the tort of invasion of privacy. It is also a fascinating example of a plaintiff taking a creative and innovative approach to both torts law and equitable remedies. The court also recognised that the landscape of an Australian society is faced with ever-present and expanding social media and AI challenges and that the law must keep up with these issues.
Background to the case
The facts of this case are quite unique. The plaintiff is the estranged daughter of the defendant. In 2010, the defendant was the victim of a violent stabbing attack where his throat was cut. The defendant’s wife at the time (plaintiff’s mother) was charged with his attempted murder, as she had arranged for the attacker, her lover at the time, to murder the defendant. She was convicted and sentenced to 12 years of imprisonment. In the years following the attack, the plaintiff and her father, the defendant, became estranged. The plaintiff lived with her mother’s family, and she took her mother’s side. She also made disclosures alleging that her father sexually assaulted her prior to the stabbing incident. The plaintiff became mentally unwell and attempted self-harm. The defendant gave interviews, contributed to a book written about his story called Love you to Death: A Story of Sex, Betrayal and Murder Gone Wrong.
The plaintiff sued her father for a range of novel torts and equitable remedies including 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 plaintiff also sued for breach of fiduciary duties and restitution for the way in which the defendant went about accessing his former wife’s property, purportedly on behalf of the plaintiff as well as himself.
Breach of statutory duty
Amongst the range of novel arguments being put forward by the plaintiff, she also argued that breach of the Family Violence Protection Act 2008 (Vic) should give rise to a statutory duty and a private right to action for damages. She alleged that the publications breached an ‘intervention order’ made by the Victorian Magistrates’ Court in 2011. Although the Court was satisfied on the balance of probabilities that the defendant breached an IVO with respect to the Channel 7 ‘Sunday Night’ program, The Age article and the Sydney Morning Herald article, the Court was not satisfied that the Family Violence Protection Act 2008 (Vic) gives rise to a private right of action for damages.1
Was there a duty of care owed in negligence not to say harmful things?
The plaintiff also sued in negligence, arguing that a novel duty of care existed regarding a child’s claim against a parent for mental harm caused by negligent disclosure of personal or private information.2
The plaintiff argued that certain salient features existed that gave rise to a duty of care, in accordance with Caltex Refineries Pty Ltd v Stavar. The Court accepted that it was reasonably foreseeable that the defendant publicly referring to the plaintiff would cause psychiatric injury to her. However, ‘reasonable foreseeability is a necessary, but not sufficient criteria for the imposition of a duty to take reasonable care to avoid psychiatric injury’ (Tame v NSW; Annetts v Australian Stations).3
When considering whether it was reasonable to impose a duty of care in the circumstances, the Court was reluctant because of the potential widespread precedential nature of finding such a duty exists.4
‘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 schoolteacher 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.’
Ultimately, the Court was not satisfied that it reasonable to impose a duty of care in these circumstances.5
Breach of confidence
The plaintiff also sued in equity for breach of confidence. The Court 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 Court held that this information had the necessary quality of confidence, and which was impaired in circumstances conveying an obligation of confidence. The counselling session between the father and daughter in the circumstances was by its nature, in its entirety a confidential and intensely private occasion. As such, the plaintiff’s claim succeeded for breach of confidence (but only in relation to certain information). Crucially, the court did not find breach of confidence in respect to the allegation that the defendant stated that the plaintiff had apologised to him.6
Novel tort of privacy
The Court considered whether there could be recognition of the existence in the common law an actionable claim for invasion of privacy, in consistence with the common law method.
As the Court did not find any breach of confidence in the defendant stating that the plaintiff had apologised to him, if this tort of invasion of privacy was recognised, it could provide a remedy for the plaintiff’s hurt and distress in regard to this aspect of the case.
For decades the case of Victoria Park Racing v Taylor was viewed as excluding the recognition of a tort of invasion of privacy under Australian common law. In 2001, in Lenah Game Meats, the High Court considered this question and while no members of the Court explicitly recognised the existence of such a tort, each judgment left open the question of whether such a tort might be recognised in the future. The decision established that Victoria Park Racing does not prevent the recognition of a tort of privacy under Australian common law.7
The Court also thoroughly considered other first instance decisions since Lenah Game Meats which discussed the tort of privacy. In the decisions of Grosse and Doe v ABC, the tort of privacy had received some limited judicial recognition and that other decisions which had not recognised the tort had also not completely ruled out its existence.8 The Court also had regard to the tort’s existence in the UK, NZ, US and Canada.9
In a step forward for the Australian common law, and in light of all the authorities considered, the Court held that no binding authority excludes the recognition of a cause of action for invasion of privacy, and in fact, Lenah Game Meats confirms that the development of a tort of privacy is open. However, the Court did note that ‘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’.10
The Court then looked at 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. The Court concluded that it was in effect just an extension of the existing tort, rather than a new cause of action. Accordingly, the Court considered that it was desirable that the common law should recognise the tort.
When articulating the difference between the new tort and the equitable remedy of breach of confidence, the Court concluded that:
‘ … 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.’ 11
Somewhat unhelpfully, the Court did not attempt to state the elements of the cause of action, except for that it should provide relief ‘at a minimum, in the circumstances where it has been available in the past – that is, the making public of private matters in circumstances that a reasonable person, standing in the shoes of the claimant, would regard as highly offensive.’ 12
The Judge also did not express any views on the question of the availability of defences, or whether this action is better viewed as an equitable or tortious cause of action.13
Conclusion
Ultimately, the Court held that the defendant had breached the plaintiff’s privacy by disclosing what the plaintiff had told him in counselling sessions, even where the defendant had made up or lied about some aspects of the disclosures. Interestingly, the Court noted that it should not be necessary to prove that the information disclosed was ‘true’ to succeed in breach of privacy.
It is worth noting that the plaintiff received other damages in the case for breach of fiduciary duty. However, in respect to the novel tort of invasion of privacy and the equitable remedy of breach of confidence, the Court 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.
Critically, the Court noted:
‘ … the concern of the action for invasion of privacy is not so much protecting private information, but protecting a private sphere within which human dignity and autonomy can be furthered.’14
‘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?’ 15
Go here Waller (A Pseudonym) v Barrett (A Pseudonym) [2024] VCC 962 (28 June 2024) to read the case in full.
The ALA thanks Jeremy King and Sophia Baldi.
This is an edited version of an article first published by Robinson Gill Lawyers
Jeremy King is a Principal Lawyer at Robinson Gill Lawyers. He joined Robinson Gill in 2006 after graduating from Monash University with degrees in Law and Arts. He has a Masters of Law at Utrecht University in the Netherlands specialising in human rights and criminal justice. He is an Accredited Specialist in Personal Injury and the head of the firm’s personal injury law team.
Sophia Baldi is a Law Clerk in the Police and Prisons and Personal Injury teams at Robinson Gill Lawyers. She is currently completing her final year of the Juris Doctor at the University of Melbourne.
The views and opinions expressed in this article are the authors and do not necessarily represent the views and opinions of the Australian Lawyers Alliance.
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1 Waller v Barrett [2024] VCC 962, [188]
2 Ibid, [189]
3 Ibid, [193]-[194]
4 Ibid, [199]
5 Ibid, [199]
6 Ibid, [223]
7 Ibid, [240]
8 Ibid, [250]-[252]
9 Ibid, [259]-[277]
10 Ibid, [278]
11 Ibid, [315]
12 Ibid, [318] citing Lenah Game Meats
13 Ibid, [319]-[320]
14 Ibid, [323]
15 Ibid, [324]
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