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Behind closed doors: A summary of the developments to tortious invasion of privacy in Waller (A Pseudonym) v Barrett (A Pseudonym) [2024] VCC 962

Published on July 4, 2025 by Kate Flanigan and Matilda Lynch

The Victorian County Court’s decision in Waller v Barrett has recognised the invasion of privacy as cause of action available under Australian common law.

This case is a significant step forward for the recognition of a common law cause of action for the invasion of privacy in Australia and comes at a time when there have been related developments in the implementation of a statutory tort for serious invasions of privacy under the Privacy and Other Legislation Amendment Act 2024 (Cth), which introduced several amendments to the Privacy Act 1988 (Cth) (‘the Privacy Act’).

The Claims

The plaintiff, Lynn (a pseudonym) is the estranged daughter of the defendant, Romy (a pseudonym). Romy was married to Lynn’s mother, Dianne (a pseudonym).

The proceedings concern various claims made by Lynn against Romy, categorised by the following headings:

1. The term deposit claims;
2. The County Court judgment claims; and
3. The publication claims.

While the invasion of privacy claim was considered within the publication claims, also summarised below are the term deposit claims and the County Court judgment claims due to the context they provide for the publication claims.

Background

The factual background to this claim is rather unusual. Additionally, her Honour made adverse findings in respect of the reliability of the evidence of both the plaintiff and the defendant; acknowledging that both parties have suffered incredible trauma, but issues with their evidence further added to the factual complexity.

The relevant background can be briefly summarised as follows. Romy was violently attacked by a man with a knife on 2 January 2010 and was fortunate to survive. In October 2011, a jury found Dianne guilty of Romy’s attempted murder – the attacker and Dianne having been secret lovers for 3 years prior to the attack. Dianne was sentenced to 12 years imprisonment with a non-parole period of 9 years.

Lynn and her father Romy had been estranged since the attack, with Lynn living with maternal grandparents after her mother was convicted, and later in foster care.

Lynn subsequently made allegations of sexual abuse by her father Romy. Lynn, who was 13 years old at the time of the attack, had said it would have been easier for her if Romy had died back in 2010.

The Term Deposit Claims

After his discharge from hospital in 2010, Romy engaged lawyers who wrote to the Commonwealth Bank requesting details of the term deposits held in Lynn and her siblings’ names. Romy signed a term-deposit withdrawal request resulting in $20,177.61 being paid into Romy’s account and Lynn’s term deposit being closed.

Lynn argued that she had a claim against Romy for money had and received, as well as a claim for breach of fiduciary duty. Lynn sought orders for the repayment of the principal sum, plus interest.

Her Honour found there was no evidence that Romy had used the money for the benefit of Lynn, despite his contentions. Romy had used the money for his own purposes, including for Lynn’s other siblings (who were living with him at the time). Her Honour found that Lynn had a claim against Romy for return of the principal sum, both:

1. In respect of money had and received, as his actions amounted to a failure of consideration; and
2. Equitable compensation a result of a breach of the fiduciary duty Romy owed to Lynn.

The County Court Judgment Claims

In early 2012, Romy commenced proceedings in the County Court against Dianne, naming Lynn as one of the co-plaintiffs for harm said to have been suffered by Lynn as a result of Dianne’s actions. Lynn was not aware of these proceedings, did not authorise Romy to bring these proceedings on her behalf, and Romy was not appointed as a litigation guardian for Lynn.

In late 2012, judgment was awarded in Romy’s favour in the sum of $2,409,000 and in Lynn’s favour in the sum of $300,000. Romy subsequently took steps to enforce the judgment in his favour against Dianne, but took no steps to enforce the judgment he had obtained in Lynn’s favour. Dianne has since entered bankruptcy.

Lynn claimed that Romy acted in breach of his fiduciary duty, or unconscionably, in enforcing only his judgment against Dianne. Her Honour Justice Tran expressed Lynn to be “walking a curious sort of technical legal tightrope”, in arguing that Romy had no authority to act on her behalf, but also that he breached his duties in not seeking to enforce the judgment on her behalf.

Her Honour found that Romy had, by his actions in assuming to himself the role of Lynn’s agent, created a fiduciary relationship between the parties. Romy was then in a conflict of interest when seeking to enforce the judgments and ultimately preferred his own interests over Lynn’s.

Her Honour awarded equitable compensation for the breach of fiduciary duty “calculated as a rateable proportion” of the amount Romy received through Dianne’s assets, plus interest.

Her Honour found Lynn was not entitled to relief for unconscionability as there was no relevant transaction between Lynn and Romy to vitiate.

The Publication Claims

Between 2010 and 2011, Lynn was named as a protected person on numerous intervention orders (IVOs) against Romy. The final IVO, granted in mid 2011, remained in force.

Romy provided information relating to Lynn for five publications, including three articles, a TV interview and a book published in 2014.

A lot of the information conveyed by Romy in these publications was allegedly imparted during a counselling meeting which Romy and Lynn (along with Lynn’s psychiatrist and foster carer, Romy’s counsellor and two DHS workers) attended in January 2014 with a view to exploring reconciliation.

Lynn claimed that, in divulging such information, Romy:

1. Breached his statutory duty to comply with the IVO;
2. Committed the tort of negligence;
3. Acted in breach of confidence; and
4. Committed the tort of breach of privacy.

Breach of Statutory Duty

Lynn claimed that, in divulging the information which led to the publications, Romy breached the publication and communication conditions of the IVO.

Her Honour found that, although she was satisfied on the balance of probabilities that Romy breached the IVO with respect to some of the publications, she was not satisfied that the Family Violence Protection Act 2008 (Vic) gives rise to a private right of action for damages.

Negligence

Lynn, while conceding that this was a “novel” argument, claimed that Romy owed her a duty to take reasonable care not to make public statements about her that may cause psychiatric injury. She claimed that Romy had breached this duty of care in the disclosure of personal information for the purposes of the publications.

Her Honour found that it was reasonably foreseeable that publicity referring to Lynn would cause psychiatric injury to her. Ultimately, however, her Honour concluded that no duty of care existed in the circumstances of this case. Her Honour was reluctant to find such a duty exists, given the precedential implications of doing so which could extend to a newspaper being held liable for a ‘(true, but) detrimental report about a person that they have reasonable grounds for believing will cause that person psychiatric injury’.

Breach of Confidence

Lynn additionally claimed equitable compensation for breach of confidence. Lynn argued the following necessary elements were made out in respect of the information Romy provided for the publications:

1. There was particular information with the necessary quality of confidence;
2. The information was imparted to the defendant in circumstances importing an obligation of confidence; and
3. The defendant used the information in an unauthorised manner.

Lynn argued that she did not have to establish that she had suffered a psychiatric illness as a result of a breach of confidence.

Her Honour found that some of the information satisfied the necessary elements for breach of confidence. This was found in respect of information Romy disclosed which was imparted by Lynn during the course of the counselling meeting, as well as information imparted by Lynn during conversations occurring at an unknown time but which were “private conversations between a father and a deeply-vulnerable and traumatised child about personal matters”.

Lynn was awarded damages for the breaches of confidence assessed at $10,000, plus interest.

Notably, a breach of confidence was not made out in respect to reporting by Romy in newspaper articles that Lynn had apologised for remarks made during the counselling meeting. The Court found that Lynn had in fact never made those remarks, there was no ‘information’ which could have been wrongfully disclosed to satisfy a breach of confidence. This reporting by Romy of a purported apology formed the basis of the breach of privacy claim.

Invasion of Privacy

The question of an actionable invasion of privacy was posed by Justice Tran as follows ([232]):

I have held that Lynn did not apologise to Romy after the counselling meeting, and that, accordingly, there cannot have been any breach of confidence in Romy stating that Lynn had apologised to him […] Could, perhaps, the condition that there exists in the common law an actionable claim for invasion of privacy fill this gap?

Lynn submitted that the common law in Australia should now recognise the existence of a tort of invasion of privacy. Lynn submitted that the elements, based on the judgment in Grosse v Purvis [2003] QDC 151, were:

1. A willed act by the defendant;
2. Which intrudes upon the privacy or seclusion of the plaintiff;
3. In a manner which would be considered highly offensive to a reasonable person of ordinary sensibilities; and
4. 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.

Her Honour considered the current state of the Australia case law in relation to the existence of a cause of action for invasion of privacy, noting of course that “any such development must be in accordance with the common law method. Judges are not legislatures”.

Following from the High Court’s decision in Victoria Park Racing and Recreation Grounds Company Limited v Taylor and Others (1937) 58 CLR 479, it was generally understood that there was no cause of action for breach of privacy in Australia. However, the subsequent High Court decision of Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] 208 CLR 222 establishes that Victoria Park Racing does not prevent the recognition of an actionable invasion of privacy under Australian common law. While not deciding in favour of the plaintiff’s purported right to privacy in Lenah Game Meats, each of the judgments left open the question of whether such a cause of action might be recognised in the future.

Her Honour also considered other first instance decisions in Australia (Grosse v Purvis [2003] QDC 151 and Doe v Australian Broadcasting Corporation [2007] VCC 281), as well as the existence of a tort of privacy (or similar) in New Zealand, the United Kingdom, Canada and the USA.

Her Honour concluded that “it should be recognised that an action for invasion of privacy forms part of the common law of Australia”, and that this should be viewed as separate and distinct from the action for breach of confidence, rather than under the umbrella of the current action for a breach of confidence ([315]). This is as, despite approaches taken by Courts in the past, ‘human dignity and autonomy cannot comfortably sit under the same overarching umbrella as protection of material interests and property rights. The two are fundamentally different and justify different forms of protection’ ([306]). Notably, Justice Tran declined to express a view as to whether the action for invasion of privacy is better viewed as an equitable or tortious cause of action, finding that whether the action is homed in tort or equity, Lynn was entitled to the relief she sought ([320]).

In applying these principles to the present case her Honour noted that an action for invasion of privacy must be carefully limited so as not to constrain other important common law rights such as free speech and autonomy of action.

In doing so, her Honour found that there was an actionable invasion of privacy in respect of only Romy’s purported disclosure of the contents of an email written by Lynn and addressed solely to him (the purported apology). He disclosed the contents of this email to a journalist “in circumstances where he must have known that what he said was likely to be published in newspapers of wide circulation”.

Her Honour assessed damages for the invasion of privacy at $30,000.

Implications

This case reflects the changing attitude towards the tort of invasion of privacy, which has since been reflected in the amendments to the Privacy Act to introduce a statutory tort of serious invasion of privacy. These amendments came into effect on 10 June 2025.

The decision in Waller v Barrett does not appear to have been the subject of an appeal application, however the issues it deals with, and the recent legislative amendments, will no doubt be the subject of consideration by higher Courts in the future.

Please note that this article does not constitute legal advice. If you are seeking professional advice on any legal matters, you can contact Carroll & O’Dea Lawyers on 1800 059 278 or via our Contact Page and one of our lawyers will be able to assist you.