A common law action for breach of privacy in Australia?

3.53 A common law tort for invasion of privacy has not yet developed in Australia, despite the High Court leaving open the possibility of such a development in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd in 2001.^[99] A tort of invasion of privacy has been recognised by two lower court decisions: Grosse v Purvis in the District Court of Queensland^[100] and Doe v Australian Broadcasting Corporation^[101]in the County Court of Victoria. However, both cases were settled before appeals by the respective defendants were heard.

3.54 No Australian appellate court has confirmed the existence of this tort, and the judgments of several courts suggest that the common law is unlikely to recognise the tort in the foreseeable future:

• commenting on Grosse v Purvis, Heerey J in Kalaba v Commonwealth of Australia held that the weight of authority was against the proposition that the tort is recognised at common law;^[102]

• in Chan v Sellwood; Chan v Calvert, Davies J described the position on the existence of the tort at common law as ‘a little unclear’;^[103]

• in Sands v State of South Australia, Kelly J stated that ‘the ratio decidendi of the decision in Lenah is that it would require a further development in the law to acknowledge the existence of a tort of privacy in Australia’;^[104] and

• in Giller v Procopets,^[105] the Supreme Court of Victoria Court of Appeal found it unnecessary to consider whether the tort of invasion of privacy exists at common law, having upheld the plaintiff’s claim on the basis of the equitable action for breach of confidence.

3.55 In other cases, the existence of the tort at common law has been left open:

• in Maynes v Casey, Basten J, with whom Allsop P agreed, referring to Australian Broadcasting Corporation v Lenah Game Meats and Giller v Procopets, said that ‘[t]hese cases may well lay the basis for development of liability for unjustified intrusion on personal privacy, whether or not involving breach of confidence’, but held that the facts as found were against the plaintiff;^[106]

• in Saad v Chubb Security Australia Pty Ltd, Hall refused to strike out a claim for breach of confidence, holding that it was not open to conclude ‘that the cause of action for breach of confidence based on invasion of the plaintiff’s privacy would be futile or bad law’;^[107]

• in Gee v Burger, McLaughlin AsJ considered the matter ‘arguable’;^[108]

• in Dye v Commonwealth Securities Ltd, Katzmann J noted ‘that it would be inappropriate to deny someone the opportunity to sue for breach of privacy on the basis of the current state of the common law’;^[109] and

• in Doe v Yahoo!7 Pty Ltd, Smith DCJ said, ‘it seems to me there is an arguable case of invasion of privacy. … I would be very hesitant to strike out a cause of action where the law is developing and is unclear’.^[110]

3.56 The cases suggest that the future development of the common law is, at best, uncertain. Moreover, any significant development of the common law would require litigants with the resources and determination both to initiate proceedings and to take those proceedings through the appeals process. In Goodwin v News Group Newspapers —a case involving a privacy claim against a media defendant in the UK—Tugendhat J noted that

it is essential that the parties to litigation put their evidence and submissions before the court. It is by weighing up arguments and counter arguments that judges are best able to interpret the law. … To the extent that media defendants choose not to submit evidence and argument to the courts, judges will find it difficult to develop the law of privacy to meet the needs of society.^[111]

3.57 There are indications that litigants may prefer to rely on the limited remedies of well-established causes of action, rather than risk the prolonging of proceedings or appeals on uncertain points of law or novel arguments. This is particularly so if the monetary compensation for any new cause of action is not likely to be high.

3.58 However, the dependence on parties to bring their case or assert their defence in court is an inherent feature of the system underlying the development of the common law.^[112] It is unlikely that Australian law on privacy will stand still indefinitely, even if its precise development cannot yet be predicted.