Lynn Waller (A Pseudonym) v Romy Barrett (A Pseudonym) [2024] VCC 962
In brief
The recent County Court of Victoria decision, Lynn Waller (A Pseudonym) v Romy Barrett (A Pseudonym) [2024] VCC 962, suggests the existence of an Australian common law cause of action for invasion of privacy.
The trial judge assessed that the right to privacy is a value distinct to the right to keep information confidential. As a result, she considered that privacy requires separate protection to breach of confidence claims. This brings Australia closer to the accepted position in the UK, US, Canada, and New Zealand.
Regardless of whether the decision is ultimately approved by the higher Courts, it represents a major step toward recognition of the need for legal protections against the unauthorised disclosure of private information. We will continue to watch this space closely, particularly in light of the recently passed Privacy and Other Legislation Amendment Bill (awaiting Royal Assent), which will implement a statutory tort for serious invasions of privacy.
In more detail
Claim
The plaintiff, Lynn Waller, is the estranged daughter of the defendant, Romy Barrett. In 2010, the defendant was the victim of a near-fatal stabbing orchestrated by his then-wife (the plaintiff’s mother), who was subsequently convicted and sentenced to 12 years’ imprisonment. Following the incident, the plaintiff and the defendant became estranged. During the period of estrangement, the plaintiff made allegations of sexual misconduct against the defendant.
From 2012 to 2014, the defendant was involved in five publications which refer to the plaintiff: articles in Marie Claire, The Age, and the Sydney Morning Herald; an interview on Channel 7’s ‘Sunday Night Program’; and a book titled “Love you to Death: A Story of Sex, Betrayal and Murder Gone Wrong.”
As a result of the publications, the plaintiff claimed breach of confidence, breach of statutory duty, invasion of privacy and negligence against the defendant.
Decision
The trial judge found the defendant to be liable for breach of confidence and invasion of privacy. Total damages of AUD 40,000 were awarded across these two causes of action.
Breach of confidence
The plaintiff argued that the defendant disclosed private details from the plaintiff’s counselling sessions to media outlets, which constituted a breach of confidence. The trial judge held that the defendant had committed a breach of confidence in relation to some of these details that had the “necessary quality of confidence” (such as that the plaintiff blamed the defendant for the death of her mother, and that she wished the defendant were dead). Damages of AUD 10,000 were awarded for this cause of action.
Breach of statutory duty
At the time of the publications, the defendant was subject to an Intervention Order (IVO) in favour of the plaintiff. Under this order, the defendant was barred from publishing any material about the plaintiff on the internet, email, or other electronic communication; contacting or communicating with the plaintiff; or having another person to do anything that the defendant must not do under the order. Her Honour held that, although she considered the IVO to have been breached, this was a criminal issue and did not give rise to a private action for damages.
Invasion of privacy
One of the disclosures over which the plaintiff claimed breach of confidence was discovered during the trial to be false. As a result, Her Honour held that the disclosure could not be a breach of confidence. That said, Tran J assessed that the disclosure by the defendant, despite being incorrect, was “frank and highly personal”. He stated that “A reasonable person in Lynn’s shoes would have found the disclosure (or purported disclosure) of Lynn’s private email to be highly offensive.” As a result, he held that the plaintiff had a cause of action for damages for invasion of privacy. Damages of AUD 30,000 were awarded for this cause of action.
Negligence
The plaintiff claimed that the defendant had breached his duty of care as a parent by negligently disclosing personal/private information, which allegedly caused mental harm to the plaintiff. Tran J held that it was not reasonable under the circumstances to impose a duty of care for the defendant not to make public statements that may cause psychiatric injury to the plaintiff.
Cause of action for invasion of privacy
The trial judge assessed that “it should be recognised that an action for invasion of privacy forms part of the common law of Australia.” Rather that creating a new cause of action, her stated intention was to separate the breach of confidence cause of action into:
- Breach of confidence – actions that protect confidential information and trade secrets; and
- Invasion of privacy – actions (available only to natural persons) that protect human dignity in privacy. This cause of action “focuses upon the protection of human autonomy and dignity—the right to control the dissemination of information about one’s private life and the right to the esteem and respect of other people.”
Ultimately, Her Honour assessed that actions for breach of confidence and invasion of privacy protect fundamentally different underlying values, and should therefore be dealt with separately. Her view is that the separation will enable the law to develop coherently and in a way that best protects those values.
Her Honour did not define the essential elements of the action, nor did she consider any of the potentially available defences. That said, she opined that the invasion of privacy action should be available at least where there has been “the making public of private matters in circumstances that a reasonable person, standing in the shoes of the claimant, would regard as highly offensive.”
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Thank you to Hannah Stacey for her assistance in preparing this alert.
