The case discussed involves sensitive and potentially distressing content. Reader discretion is advised.

Whilst the decision is significant, it does not amount to the creation or recognition of a tort of invasion of privacy. Rather, it is a non-superior state court recognising that a separate cause of action for invasion of privacy exists in that state.  The questions become: will this be the start of a new common law cause of action more broadly in Australia? Will a state Supreme Court or the Federal Court apply, distinguish, modify or overrule this decision? 

Additionally, how will this right develop in light of subsequent changes to the Privacy Act 1988 (Cth) which introduced a statutory cause of action for serious invasions of privacy will be one to watch. 

On 2 January, 2010, the defendant, Romy Barrett (a pseudonym) was  violently attacked by  an assailant armed with a knife while departing his birthday celebration with his wife, Dianne. Unbeknownst to Barrett, the assailant was Dianne's lover, and the pair had conspired to orchestrate his murder in pursuit of a future together. Despite sustaining severe injuries, Barrett survived the attack.

The plaintiff, Lynn Waller (a pseudonym) is the estranged daughter of Romy Barrett. Lynn was thirteen years old at the time of her father's attack. With her father hospitalised and mother on remand —later sentenced to 12 years' imprisonment for attempted murder—) she was placed into care. 

Whilst in care, Lynn reported to a child protection worker allegations of sexual abuse by Barrett. As a result, Lynn's mental health suffered and she required hospitalisation after a suicide attempt.

From 2012 onwards, various media publications began reporting Barrett's story, referencing both Lynn and Barrett . Barrett entered into an agreement with an author and publisher to write a book referencing the above and his relationship with Lynn. The book titled "Love you to Death" was published in August 2014. 

Articles promoting the book were published in The Age, The Sydney Morning Herald and a report featured on Channel 7's Sunday Night program. In The Age and The Sydney Morning Herald, Barrett stated that Lynn apologised to him via email following a counselling meeting. Lynn made no such apology. 

Lynn brought proceedings against Barrett for a number of claims, which included for breach of fiduciary duty, breach of confidence, breach of statutory duty, invasion of privacy and negligence for five publications which refer to Lynn. 

With respect to the invasion of privacy claim, the question was whether the statement regarding the apology was a statement made which purported to disclose private information.

Judge Tran found that the incorrect statement that Lynn had apologised to Barrett in a private email to him) did amount to an invasion of privacy: 

Romy [Barrett] purported to disclose the contents of an email written by his estranged and highly vulnerable daughter, and addressed solely to him. His disclosure was to a journalist in circumstances where he must have known that what he said was likely to be published in newspapers of wide circulation. Lynn’s email was frank and highly personal and focused on her desire for a relationship with her siblings. It was incontrovertibly within Lynn’s private sphere. It matters not that Romy [Barrett] incorrectly interpreted and disclosed the substance of Lynn’s communication. If anything, that increased the harm to Lynn, as an apology may be interpreted as an admission of wrongdoing and the only way for Lynn to counter the inaccuracy would be to engage with the press and disclose more of the email. A reasonable person in Lynn’s shoes would have found the disclosure (or purported disclosure) of Lynn’s private email to be highly offensive.  

Accordingly, Lynn was entitled to damages in the amount of $30,000. This amount was calculated having regard to the mental distress Barrett's conduct caused to Lynn. 

In concluding that an action for invasion of privacy is "separate and distinct" from the action for breach of confidence, Tran J turned to a detailed review of Australian case law in relation to the existence of a tort of privacy with an emphasis placed on the following:  

• "The common law allows for the development of legal principle"; 

• "The common law method requires judicial development of the law to be incremental; and to proceed logically or analogically from existing legal principles, rules and institutions"; 

• "No binding authority excludes the recognition of a cause of action for invasion of privacy. To the contrary, Lenah Game Meats confirms that the development of a tort of invasion of privacy is open"; 

• A tort of invasion of privacy has been recognised in two first-instance decisions in Australia [Grosse v Purvis [2003] QDC 151] and [Doe v Australian Broadcasting Corporation [2007] VCC 281]".

Judge Tran also acknowledged the widespread recognition of the existence of a tort of privacy in the legal systems of closely-related common law countries.

On the background of the observations noted above, Tran J considered that "the case for recognising this existing category of case as standalone cause of action, separate and distinct from the action for breach of confidence, is compelling". The key arguments were: 

• Recognising an action for invasion of privacy is consistent with the common law method; 

• Privacy and confidence are two different concepts with fundamentally-different underlying values for "[h]uman dignity and autonomy cannot comfortably sit under the same overarching umbrella as protection of material interests and property rights"; 

• Separating the cause of actions will "enable the future principled development of the cause of action in accordance with those underlying values";  

• It "accords with the shift towards more explicit recognition of the importance of privacy as a fundamental common law right";  

• "There is an increasingly urgent need to protect privacy in the world of telephoto lenses, deepfakes, social media and clickbait"; 

• The argument that the creation of a tort of invasion of privacy should be left to legislature "does not apply with the same force to the recognition of a tort of invasion of privacy"; 

• "An action for invasion of privacy protects a distinct interest, not protected by, or conflicting with, existing torts outside breach of confidence". 

Though the essential elements of the action remain unclear at this stage, Tran J noted  that invasion of privacy does not depend on any requirement that the information disclosed to the public be either true or false:
 
When one considers privacy as not so much protecting specific information, but rather as maintaining opacity, or a private sphere, it follows naturally that a plaintiff ought not be required to prove that the information disclosed concerning their private sphere was, in fact, true. There is nothing in the underlying policy of a tort of invasion of privacy which requires that this be an element. It is but a slight, incremental, development to say that it does not. 

Significantly, it is important to note that during the months after this decision was handed down on 28 June 2024 (published online on 24 October 2024), the Federal Government developed and passed into law the Privacy and Other Legislation Amendment Bill 2024 which, if enacted, seeks to codify a tortious right to privacy. 

In given judgment, Tran J did not: 

• Define the essential elements of an action for invasion of privacy;  

• Determine available defences to such a cause of action; and

• Express a concluded view on the question of whether the action for invasion of privacy is better viewed as an equitable or tortious cause of action. 

Consistent with the thread of caution running through case law that preceded Lynn Waller v Romy Barrett, Tran J cautioned that "an action for invasion of privacy may place on other important common law rights, such as free speech and autonomy of action, an action of privacy must be carefully limited".  It will be interesting to see if and how the development of the statutory right to be protected against serious invasions of privacy will reduce or affect these other rights. What we do know is that the introduction of this new statutory right was not controversial amongst citizens and parliamentarians, and was generally considered overdue.

If you are uncertain about how to navigate invasion of privacy claims and legal requirements, our Digital Governance, Cyber Security & Privacy team is available to assist.

Lynn Waller v Romy Barrett [2024] VCC 962, [315].

The Privacy and Other Legislation Amendment Bill 2024 amending the Privacy Act was assented to 10 December 2024.