Editors --- "Recognition of An Action for Invasion of Privacy" [2004] AdminRw 19; (2004) 56 Admin Review 68

• Recognition of an action for invasion of privacy

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Recognition of an action for invasion of privacy

The Queensland District Court has awarded damages for invasion of privacy, which is believed to be the first express recognition of this tort in Australia. In Grosse v Purvis^[1] the plaintiff claimed a range of remedies for the defendant’s alleged behaviour over a number of years, broadly described as stalking. Skoien SJ found many of the allegations to have been made out. His Honour noted that much of the conduct constituted unlawful stalking under Queensland’s Criminal Code. He then analysed the judgments in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd^[2] and concluded that nothing in that decision prevented recognition of an action for invasion of privacy. He went on to outline that action:

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.

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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.

Clearly acts of the type specified in s. 359B(c) of the Code … would be actionable behaviour … The suffering of embarrassment, hurt, distress and, a fortiori, PTSD [post-traumatic stress disorder] would be actionable detriment as would enforced changes of lifestyle caused by the intrusion …

It is unnecessary for me in the circumstances of this case to decide whether a defendant would be liable for negligent acts as opposed to willed acts. The conduct of the defendant which I have found to be proved consisted of willed acts.

It seems to me that a defence of public interest should be available (see Lenah at para 34). No such concept was involved in this case. It is unnecessary for me to decide whether a defence of actual intention to protect, or cause a benefit to, the plaintiff should be a defence, as was argued by the defence in this case because I have expressly found that such an intention did not motivate the defendant. In any event, it could lie uneasily with the element set out in para [444(c)] above.^[3]

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^[1] [2003] QDC 151.

^[2] [2001] HCA 63.

^[3] [2003] QDC 151 at [442] to [447].