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Telford, Paul --- "Gross v Purvis: its place in the common law of privacy" [2003] PrivLawPRpr 36; (2003) 10(4) Privacy Law and Policy Reporter 66


Gross v Purvis: its place in the common law of privacy

Paul Telford DEACONS

The existence of a common law right of privacy in Australia has occupied some of our more influential legal minds over the last century, including the Australian Law Reform Commission,[1] the Supreme Court of New South Wales[2] and on at least two occasions, various members of the High Court.[3] Since the birth of the modern law of negligence in Donoghue v Stevenson[4] and the increased acceptance of foreign jurisprudence by Australian courts, significant pressure has been applied in favour of acknowledging the tort of invasion of privacy. Against the weight and inevitable momentum of this proposed reform, it is ironic that the ‘breakthrough’ may have come from modest sources — a decision of a trial judge in an inferior Queensland Court.

On 16 June 2003, Skoien DCJ sitting in the Queensland District Court awarded a plaintiff damages (including exemplary and aggravated damages) for breach of privacy interests.[5] This article will examine the judgment and address the relevance of the decision in the context of privacy law reform in Australia.

Background – the tort of invasion of privacy

There exists a general consensus among legal authorities that the common law courts of Great Britain did not recognise a formal right of privacy in individuals, despite the recognition of such rights through both statute and common law in the US.[6] Only recently has this view shown signs of being eroded by the influence of more modern, international doctrines. Sedley LJ in Douglas v Hello! Ltd[7] considered that the law ‘can recognise privacy itself as a legal principle drawn from the fundamental value of personal autonomy’. In a similar way, the common law of Canada does not formally recognise the tort of invasion of privacy, although in Motherwell v Motherwell[8] the Court accepted an argument that the defendant’s activities amounted to an invasion of the plaintiffs’ privacy, however characterised the activity as a form of nuisance rather than a separate tort. New Zealand law recognises the tort of invasion of privacy[9] despite the guarantee of freedom of expression.[10]

Until the decision in Grosse,[11] the common law tort of invasion of privacy has not been expressly recognised in Australia.[12] In Victoria Park Racing and Recreation Grounds Co Ltd v Taylor,[13] the High Court[14] held that the owner and operator of a racecourse could not prevent another party, situated on adjoining land, from observing and broadcasting particulars of events carried out on the racecourse. The case has been regarded as authority for the proposition that the common law of Australia does not recognise a general tort of invasion of privacy. In that respect, it operated as a practical bar to the formulation of any future claim for a period of almost 60 years, although this proposition was discounted by several members of the current High Court in the more recent decision in Lenah Game Meats Pty Ltd v Australian Broadcasting Corporation.[15] In that case, the High Court was required to consider whether a prohibitory injunction ought to have been maintained against a broadcasting corporation, restraining it from airing certain video footage showing operational aspects of an abattoir involved in the processing of brush tail possum carcases. One of the grounds proposed by the abattoir as a sufficient basis for injunctive relief was an actionable invasion of a right to privacy. The only member of the Court to offer some ‘tentative views’ about the prospect of a common law right of privacy was Callinan J;[16] the remainder of the Court dismissing the claim to injunctive relief on grounds that did not necessitate a finding of common law privacy. The views of Callinan J were said to be expressed out of deference to ‘the careful arguments of the parties’[17] and were not necessary to effect the result due to the views his Honour had reached concerning arguments based on unconscionability. On this premise however, Callinan J said:

It seems to me that, having regard to current conditions in this country, and developments of the law in other common law jurisdictions, the time is ripe for consideration whether a tort of invasion of privacy should be recognised in this country, or whether the legislatures should be left to determine whether provisions for a remedy for it should be made.[18]

Grosse v Purvis

The plaintiff was a female shire councillor, heavily involved in the establishment of public facilities on the Sunshine Coast in Queensland, including a TAFE college and a university. For a period of time the plaintiff had been romantically involved with the defendant, both parties having worked together on various community related ventures. From 1992 that relationship soured and in April 2002 the plaintiff commenced a proceeding in the District Court of Queensland, seeking damages pursuant to various causes of action including harassment, nuisance, negligence, trespass to person and the intentional infliction of physical harm to the plaintiff. Of specific relevance to this discussion is the plaintiff’s claim that the conduct of the defendant, generally described in evidence as ‘stalking’, fell within an actionable civil claim for invasion of privacy.

Presiding trial judge, Skoien DCJ, approached this aspect of the claim by first considering the elements of ‘stalking’ as an offence proscribed by ss 359B and 359E of the Criminal Code (Qld). Although the offence is defined without specific reference to the term ‘private’ or any of its derivates, the trial judge made the following connection in respect of the claims of the plaintiff and the evidence concerning the defendant’s conduct:

Thus the offence in Queensland of unlawful stalking involves an invasion of the privacy of the victim. The conduct of the defendant, as I have found it, from 1994 onward has included very many acts committed by him (or acts which he obviously counselled or procured), which fall within s 359B of the Code.[19]

The trial judge noted that, according to the research of counsel appearing for each party, there had been no case in Australia which had expressly recognised the civil right of action for invasion of privacy,[20] and proceeded to examine the claim in light of the decision of the High Court in Australian Broadcasting Corporation v Lenah Game Meat Pty Ltd.[21] Specifically, Skoien DCJ was persuaded by the reasoning of Gummow and Hayne JJ (with whom Gaudron J agreed) that the earlier, seminal decision of the High Court in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor[22] did not preclude the development of a cause of action for invasion of privacy.[23] The trial judge noted that a similar view was held by Kirby J[24] and concluded in respect of the judgment of the Chief Justice that:

I see nothing in the reasons of Gleeson CJ to suggest that the he in any way differed from the view of the other members of the Court that the decision in Victoria Park presented no bar to the existence of a common law right to privacy in Australia.[25]

Having satisfied himself that there was no binding precedent that would otherwise limit his ability to deal with the plaintiff’s claim in tort for breach of privacy, the trial judge then embarked upon the task of elucidation. Principally, this occurred by reference to the statements of the American jurist Professor William Prosser, used as a foundation for s 652A of the Restatement of the Law Second, Torts which identifies four separate categories of tort associated with the notion of privacy:

(1) intrusion upon the plaintiff’s seclusion or solitude, or into his or her private affairs;

(2) public disclosure of embarrassing private facts about the plaintiff;

(3) publicity which places the plaintiff in a false light in the public eye; and

(4) appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.

Skoien DCJ noted that the identification of these categories and their use in formulating an Australian tort of breach of privacy was recognised in Lenah by both Gleeson CJ[26] and Callinan J.[27] In a broader sense, Skoien DCJ was also influenced[28] by the judgment of Gummow and Hayne JJ (and thus Gaudron J) where their Honours recognised the influence of international jurisdictions, particularly the United States ‘which has been treated as the fount of privacy jurisprudence’.[29]

When considering those matters that would constitute an unacceptable invasion of privacy, Skoien DCJ again deferred to the judgments of Gleeson CJ[30] and Gummow and Hayne JJ[31] (and Gaudron J). In addition, the trial judge endorsed the views of Jeffries J in Tucker v News Media Ownership Ltd.[32] With the benefit of these views, Skoien DCJ then proceeded to formulate the following, cumulative test:

It is not my task nor my intent to state the limits of the cause of action nor any special defences other than is necessary for the purposes of this case. In my view the essential elements would be:

(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,

(d) and 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.[33]

The trial judge held that conduct offending against s 359B of the Criminal Code (Qld) (that is, stalking) would be actionable behaviour in terms of the test he formulated for the civil action of invasion of privacy. Having already found that the conduct of the defendant constituted a breach of these stalking provisions, and satisfying himself that the plaintiff had suffered embarrassment, hurt, distress and a post traumatic stress disorder, Skoien DCJ considered that the plaintiff had succeeded in establishing her claim for damages. These were assessed at a total of $178,000, including an amount of $50,000 for aggravated damages and $20,000 for exemplary damages.[34]

The writer argues that privacy is a right that ought to be protected by a cause of action in tort, as opposed to a separate cause of action in itself. It is suggested that a more appropriate vehicle to allow the development of actions for invasion of privacy is the common law tort of trespass. Against this proposition, each of the ‘essential elements’ identified by the trial judge will be considered.

Intentional interference

Skoien DCJ considered that an essential element of the tort of invasion of privacy would involve the intentional acts of the defendant, however his Honour conceded that it was unnecessary for him to consider whether negligent acts would also be sufficient to found a claim, as the acts complained of in relation to the defendant consisted of willed acts.[35]

The writer argues that the tort of invasion of privacy should proceed as an action in trespass; a claim that is actionable per se and available as a result of the voluntary, direct interference by the defendant with the privacy rights of the plaintiff. In England, Lord Denning MR considered that claims in trespass were limited to circumstances where the plaintiff intended the interference, and that a claim for unintended injury must comply with the requirements of negligence.[36] The distinction is less clear in Australia.[37] It appears that an action in trespass may still lie in Australia despite the inability of the defendant to disprove the intentional nature of the interference. This view would afford the tort of invasion of privacy the ability to develop under the guise of an action in trespass. Alternatively, if Skoien DCJ is correct in his Honour’s suggestion that the cause of action must essentially involve the willed act of the defendant, and if the views of Lord Denning prevail, then common law privacy must proceed by reference to negligence.[38] The writer argues that this result would necessarily hinder the cause of action by requiring plaintiffs to establish the existence of a duty of care without the benefit of an otherwise recognised category of duty and would also restrict the cause of action to those plaintiffs capable of establishing a recognised loss.[39]

An intrusion upon the privacy and seclusion of the plaintiff

With respect, Skoien DCJ has purported to formulate a cause of action by reference to one of the more uncertain terms in the English language: privacy. As was noted in Lenah by Gummow and Hayne JJ (and Gaudron J), privacy as an individual right has proven exceedingly difficult to define.[40] Skoien DCJ does not attempt to specifically define what was meant by his use of the term, although in respect of his use of the term ‘seclusion’ his Honour was clearly influenced by the description of ‘intrusion upon reclusion’ contained in the Restatement of the Law Second, Torts as follows:

One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another person or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.[41]

This definition is less than clear. Skoien DCJ refers to ‘privacy or seclusion’ in a manner which purports to differentiate between the two terms, although prefers a description of ‘seclusion’ which is prefaced on the notion of privacy. The writer argues that the approach taken by the trial judge suffers from similar flaws to those identified by the High Court in respect of the English tort of invasion of privacy. In Lenah, Gummow and Hayne JJ (and Gaudron J) referred to the decision of the House of Lords in Douglas[42] and noted:

Further, the necessarily tentative consideration of the topic in that case assumes rather than explains what ‘privacy’ comprehends and what would amount to a tortious invasion of it. The difficulties in obtaining in this field something approaching definition rather than abstracted generalisation have been recognised for some time.[43]

Defining privacy rights has been a perennial problem[44] and involves issues that were dealt with in some detail in the report of the Australian Law Reform Commission on the protection of privacy in Australia.[45] In Lenah, Kirby J noted that the Australian Law Reform Commission had proposed that specific legislation should be enacted which defined the values to be protected, the circumstances of the protection and the defences that would be applicable.[46] This of course has not occurred. Despite the recent private sector amendments to the Privacy Act 1988 (Cth), there remains no statutory definition of privacy in Australia.

Highly offensive to a reasonable person of ordinary sensibilities

This terminology was adopted by the trial judge from the judgment of Gleeson CJ in Lenah,[47] whereby the Chief Justice suggested a non-conclusive test of those circumstances in which the disclosure or observation of information or conduct would offend an individual’s sense of privacy. None of the other members of the Court adopted a similar test. The writer argues that this element is unnecessary, not sufficiently subjective and does not accord with the personal nature of privacy rights.

In Lenah, Gummow and Hayne JJ (and Gaudron J) noted authority from the United States in the following terms:[48]

The tort of invasion of privacy focuses on the humiliation and intimate personal distress suffered by an individual as a result of intrusive behaviour. While a corporation may have its reputation or business damaged as a result of intrusive activity, it is not capable of emotional suffering.[49]

In fact the personal nature of an individual’s right to privacy and its foundation within the notion of human dignity was seen by every member of the Court, other than Callinan J,[50] as an impediment to acknowledging a common law right of corporate privacy. To limit an individual’s ability to claim damages for breach of privacy by reference to some objective standard of sensibility is contrary to the purely subjective nature of the right. Moreover, notions of objective personal sensitivity have recently been discounted by the High Court in relation to claims for pure psychiatric injury.[51] In Tame v State of NSW; Annetts v Australian Stations Pty Ltd[52] Gummow and Kirby JJ rejected the proposition that a plaintiff would be denied recovery unless they are a person of ‘normal fortitude’.[53] Instead, reference to a hypothetical person of normal fortitude is to be considered in the context of determining reasonable foreseeability of harm.[54] However this is in respect of an action in negligence. Again, the writer argues that by treating invasion of privacy as an extension of the actions already available in trespass, objective notions of reasonable foreseeability are not required.

An act which causes the plaintiff detriment

It appears that an essential element of the tort of invasion of privacy, according to Skoien DCJ includes some aspect of damage ‘in the form of mental psychological or emotional harm or distress’.[55] In his text, Professor Fleming notes the development of the law of trespass and its ability to afford redress without proof of actual damage as an incident of the prima facie wrongful nature of the harm.[56] By recognising privacy as a fundamental human right,[57] the writer argues that an invasion of privacy should also be actionable per se. This view accords with the further comments of the trial judge that the cause of action should also be available in respect of conduct ‘which prevents or hinders the plaintiff from doing an act which (he/she) is lawfully entitled to do’.[58] It is suggested that this view is consistent with the provisions of the Privacy Act 1988 which allow for redress and the award of damages for circumstances including ‘injury to the complainant’s feelings or humiliation suffered by the complainant’.[59] It is unlikely that such damages would be compensable in a claim in negligence.[60]

Conclusion

It has been said that common law courts consciously avoid ‘fettering themselves by definitions’.[61] The writer agrees and endorses the view that tort law should be allowed to develop without the unnecessary, arbitrary constraints placed on its power (at times) through the strict operation of precedent. The writer also accepts the compelling view that a tort of invasion of privacy should be developed in Australia.

Whereas the writer applauds the bold step taken by the trial judge in Grosse in recognising an action for damages based on the actionable right of an individual person to privacy, it is suggested that a more practical development would have been to differentiate between privacy as a right and privacy as a cause of action. The decision of Skoien DCJ will not be binding on other State and Territory courts, although it is hoped that his Honour’s lead will be followed with vigour.

Gibbs CJ approached the issue of tort reform by saying that the law needs to proceed ‘step by cautious step’.[62] In the case of the tort of invasion of privacy, this would best be achieved by recognising the tort as an incident of a pre-existing cause of action. It is suggested that the law of trespass affords the most suitable vehicle, by allowing invasions of privacy to be actionable per se without the unnecessary restrictions presented by concepts of reasonable foreseeability and the existence of a duty of care. l

Paul Telford, Senior Associate, Deacons Sydney, Faculty of Law, QUT.

Endnotes

[1]. ALRC Report 22, 1983.

[2]. Bathurst City Council v Saban (1985) 2 NSWLR 704.

[3]. Australian Broadcasting Corporation v Lenah Game Meat Pty Ltd, (2002) 208 CLR 199; Victoria Park Racing and Recreation Grounds Co Ltd v Taylor [1937] HCA 45; (1937) 58 CLR 479.

[4]. [1932] UKHL 100; [1932] AC 562.

[5] Grosse v Purvis [2003] QDC 151

[6]. See Clerk & Lindsell on Torts, (16th ed) London 1989 p 28; John Fleming The Law of Torts (9th ed) Law Book Company Sydney 1998 p 664; cf Prince Albert v Strange (1849) 2 De G & Sm 652.

[7]. [2000] EWCA Civ 353 (21 December 2000) at [126].

[8]. (1976) 73 DLR (3d) 62 (Alta CA).

[9]. P v D [2000] 2 NZLR 591; but see now Hosking v Runting and others (30 May 2003) High Court Auckland Registry, CP 527/02, Randerson J, discussed by Katrine Evans in this issue of PLPR.

[10]. Bill of Rights Act 1990 (NZ).

[11]. Grosse v Purvis [2003] QDC 151.

[12]. In Grosse v Purvis, Skoien DCJ noted at [421] that: ‘Counsel have told me that, according to their research, there has been no case in Australia which has expressly given recognition to a right of action for invasion of privacy’. See also Tom Cruise and Nicole Kidman v Southdown Press Pty Ltd (1993) 26 IPR 125.

[13]. [1937] HCA 45; (1937) 58 CLR 479.

[14]. Latham CJ, Dixon and McTiernan JJ; (Rich and Evatt JJ dissenting).

[15]. (2001) 208 CLR 199.

[16]. At [313].

[17]. At [313].

[18]. At [335].

[19]. [2003] QDC 151 (6 June 2003) at [420].

[20]. At [421].

[21]. (2002) 208 CLR 199.

[22]. [1937] HCA 45; (1937) 58 CLR 479.

[23]. [2003] QDC 151 (6 June 2003) at [425].

[24]. (2002) 208 CLR 199 at [187].

[25]. [2003] QDC 151 (6 June 2003) at [428].

[26]. (2002) 208 CLR 199 at [41].

[27]. At [335].

[28]. [2003] QDC 151 (6 June 2003) at [433].

[29]. (2002) 208 CLR 199 at [119].

[30]. At [42], [43] and [54].

[31]. At [125].

[32]. Unreported, High Court, Wellington, CP 477/86, 20 October 1986. See also [1986] 2 NZLR 716 at 732 per McGechan J.

[33]. [2003] QDC 151 (6 June 2003) at [444].

[34]. Due to the commencement of tort reform legislation in varying jurisdictions, it is unlikely that future awards of exemplary, punitive or aggravated damages will be available: see s 52, Civil Liability Act 2003 (Qld).

[35]. [2003] QDC 151 (6 June 2003) at [446].

[36]. Letang v Cooper [1965] 1 QB 2 at 32.

[37]. See Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614.

[38]. It is suggested that nuisance would also be an inappropriate vehicle due to the plaintiff’s need to identify a particular damage and to demonstrate a substantial and unreasonable interference: see Fleming, above note 6, pp 460–466.

[39]. See Tame v State of NSW; Annetts v Australian Stations Pty Ltd [2002] HCA 35; (2002) 191 ALR 449.

[40]. (2002) 208 CLR 199 at [122]. The authors of the ALRC Report on Privacy made a similar comment: above note 1.

[41]. [2003] QDC 151 (6 June 2003) at [431].

[42]. Douglas v Hello! Ltd [2001] 2 WLR 992; [2001] 2 All ER 289.

[43]. (2002) 208 CLR 199 at [116].

[44]. The Hon Justice Michael Kirby ‘Privacy in the Courts’ [2001] NSWLJ 2.

[45]. Above note 1.

[46]. (2002) 208 CLR 199 at [187].

[47]. At [42].

[48]. At [127].

[49]. NOC Inc v Schaefer 484 A 2d 729 (1984).

[50]. (2002) 208 CLR 199 at [328].

[51]. See Tame v State of NSW; Annetts v Australian Stations Pty Ltd [2002] HCA 35; (2002) 191 ALR 449.

[52]. Above.

[53]. At [199].

[54]. See A Stickley, ‘Negligence: “nervous shock”’ (2002) 23 Qld Lawyer 58.

[55]. [2003] QDC 151 (6 June 2003) at [444].

[56]. Fleming above note 6, p 22.

[57]. (2002) 208 CLR 199 at [187] per Kirby J.

[58]. [2003] QDC 151 (6 June 2003) at [444].

[59]. Section 52(1A).

[60]. See Coates v SGIC (1995) 36 NSWLR 1.

[61]. Victoria Park Racing and Recreation Grounds Co Ltd v Taylor [1937] HCA 45; (1937) 58 CLR 479 at 500-501.

[62]. Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549 at [7].


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