Greenleaf, Graham --- "District Court finds privacy tort: an Australian first" [2003] PrivLawPRpr 28; (2003) 10(3) Privacy Law and Policy Reporter 41

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District Court finds privacy tort: an Australian first

Graham Greenleaf

The misadventures of the Mayor of the Maroochy Shire, Alison Grosse, have been widely reported in the Australian press, but not the fact that the Queensland District Court is the first Australian court to hold that there is a common law tort of invasion of privacy.

‘It is a bold step to take, as it seems, the first step in this country to hold that there can be a civil action for damages based on the actionable right of an individual person to privacy. But I see it as a logical and desirable step. In my view there is such an actionable right,’ said Senior Judge Tony Skoien in the course of a 109 page judgment. (Grosse v Purvis [2003] QDC 151 (16 June 2003) is available at <www.austlii.edu.au/au/cases/qld/QDC/2003/ 151.html>.)

$178,000 in damages later (compensatory damages $108,000, aggravated compensatory damages $50,000, and exemplary damages $20,000) Australia finally has a decision based on a finding of a separate cause of action of a right of privacy.

In Skoien J’s view the essential elements of the action are:

(a) a willed act by the defendant,

(b) which intrudes upon the privacy or seclusion of the plaintiff,

(c) in a manner which would be considered highly offensive to a reasonable person of ordinary sensibilities, and

(d) 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.

All of these elements were found on the facts. The Court did not consider possible defences except to note that ‘a defence of public interest should be available’ but was irrelevant here.

Skoien J considered that ABC v Lenah (2001) 208 CLR 199 in effect removed Victoria Park Racing and Recreation Grounds Co Ltd v Taylor [1937] HCA 45; (1937) 58 CLR 479 as a barrier to finding such a right. He finds some support in ABC v Lenah, particularly in the judgment of Gleeson CJ, for the approach he takes in formulating element (c) above.

Skoien J has formulated the ‘intrusion’ version of a common law privacy tort in terms somewhat similar to those used by United States decisions and commentators such as Prosser, and by the Hong Kong Law Reform Commission (see (2002) 8(7) PLPR 135), and (at least in relation to element (c)) by members of the High Court in ABC v Lenah.

The future of the case, and the tort

This is of course a decision by a District Court judge. How far is it likely to go in developing the common law of privacy in Australia? Here are a few initial thoughts. The amount of damages at stake should be enough to propel it to the Queensland Supreme Court, and possibly (given the issue) to the High Court. There is no breach of confidence issue in this case (unlike Douglas v Hello! [2000] EWCA Civ 353; [2001] 2 All ER 289 and many other supposed privacy tort cases), so it can’t be sidelined that way.

However, there are alternative grounds found by Skoien J which could be utilised by the Supreme Court to reach findings for the plaintiff sufficient to dispose of the case and justify substantial damages. Skoien J also found for the plaintiff on the following grounds:

• a possible distinct tort of harassment (for which the Court found support from Gummow, Hayne and Gaudron JJ in ABC v Lenah);

• an action for intentional infliction of physical harm (Wilkinson v Downton [1897] EWHC 1; [1897] 2 QB 57) with the physical harm here constituted by the psychiatric illness PTSD (Post Traumatic Stress Disorder);

• trespass to land; and

• nuisance.

Like most ‘privacy torts’ found at first instance, there is therefore a real risk that this one will disappear at the appellate stage. But if we are lucky it may at least result in an interesting discussion of privacy torts in the Queensland Supreme Court.

There is plenty to discuss about this case. Aside from the grounds of liability, the robust approach taken to assessment of damages, if it is sustained on appeal, should signal to a lot of lawyers that privacy litigation is worth considering.

Grosse v Purvis will be the subject of more detailed analysis in the next issue of PLPR. l

Graham Greenleaf, General Editor.