Dear Bill and colleagues;
Very interesting decision, thanks for the alert. On my reading stands for the following propositions (among others not of particular interest to this list)
(1) a breach of confidence action is available for breach of privacy in this sort of case (a video showing the plaintiff and defendant man and woman engaged in sexual intercourse was then shown to member's of the woman's extended family)- while this result is "obvious" in terms of UK jurisprudence (esp given the recent Mosely litigation) I don't think it had actually been the basis for a decision of a superior court, certainly not an appellate court at this level, in Australia; of course it is entirely consistent with obiter of the High Court in ABC v Lenah Game Meats from a few years ago;
(2) in these circumstances monetary damages can be awarded for the breach of confidence- again something which is apparently uncontroversial in the UK (witness the parade of UK decisions Neave JA recites where the availability of damages seems not to have even been an issue); but in Australia a finding that both Ashley JA [150] and Neave JA [450], [470] support almost "on eggshells" and with a very wary eye to the current High Court, where sits one of the authors of the major Australian text on equity who has attacked the availability of damages for equitable breaches in various contexts;
(3) not only can ordinary compensatory damages be awarded for this breach of confidence, but an amount of money resembling "aggravated" damages can be awarded- Ashley JA [165], Neave JA [487];
(4) as Bill said, damages for Wilkinson v Downton "intentional infliction of harm" are available in these sort of cases, but according to the majority, only where there is "recognised psychiatric injury"- Ashley JA [172], Neave JA more reluctantly [526]; Maxwell P dissenting on this sole point, would have allowed damages for "mere distress"- see eg [34];
(5) but none of their Honours felt it was necessary to decide whether there was a separate tort action for "breach of privacy"- see [175], [500]. I am not sure whether Jane Doe, an inferior court decision in Victoria which holds there is such an action, is being appealed or not. If so, it will provide the opportunity for comment on this point, I assume.
Regards
Neil F
Neil Foster
Senior Lecturer, LLB Program Convenor
Newcastle Law School
Faculty of Business & Law
MC158, McMullin Building
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931
>>> Bill Madden <bill_madden@optusnet.com.au> 11/12/08 7:53 >>>
The Court of Appeal for Victoria (an Australian state) handed down a
decision yesterday which amongst other things examined the acceptance in
Australia of the tort of intentional infliction of emotional distress.
Over simplifying, the court by majority held that the tort existed but
only could lead to an award of damages if there was psychiatric harm -
more than mere distress. One member of the court was of the view that no
such constraint was needed.
http://www.austlii.edu.au/au/cases/vic/VSCA/2008/236.html
Giller v Procopets [2008] VSCA 236 (10 December 2008)