Recent Case decided in Victorian Supreme Court
January 2009 - Case Note
Summary: In a recent decision, the Victorian Court of Appeal found that a breach of confidence claim can give rise to compensatory relief where the plaintiff suffers distress and humiliation but suffers no other loss. The court also considered whether a tort of invasion of privacy should be recognised in Australia, though did not draw any firm conclusions on this point.
This case is important because it confirms that plaintiffs who suffer distress and humiliation from a breach of confidence are able to get compensatory relief. In many cases, particularly non-commercial situations, this may be all that a plaintiff suffers. The case is also important because it provides some further judicial comment on the possible recognition of a tort of invasion of privacy.
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Invasion of Privacy
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Giller v Procopets [2008] VSCA 236 is a recent decision of the Supreme Court of Victoria, Court of Appeal, presided over by Maxwell P, Ashley
and Neave JJA.
The case arose out of a relationship between Ms Giller and Mr Procopets. Evidence led at trial and accepted by the court suggested that it was a tumultuous and abusive relationship. The court found that shortly before their relationship ended, Mr Procopets videotaped himself and Ms Giller having sexual relations on a number of occasions, initially without Ms Giller’s knowledge and later knowingly. After Ms Gillerended the relationship, he then began harassing her. He threatened to show the videos he had made to her family, friends and work colleagues, as well as to other people, in order to embarrass and shame her. The court found that he attempted to carry out his threat, actually succeeding on a number of occasions. Ms Giller claimed to have suffered mental distress as a result of this amounting to a mental illness.
Ultimately it was found by the court that she had suffered distress and humiliation, but had not suffered any mental illness. Ms Giller brought a number of claims against Mr Procopets, including:
- An action for breach of confidence; and
- An action for invasion of privacy.
These claims were run as alternative claims for damages arising out of the unauthorised display of the sexually explicit videos.
Ms Giller argued that, by displaying the videos made in the privacy and within the bounds of their close relationship, Mr Procopets had breached confidence. The trial judge agreed that the information was confidential and that a duty of confidence had been breached.
The trial judge found that if Ms Giller had been able to act in time she would have been successful in getting a court to grant an injunction ordering Mr Procopets not to display the video. Despite this fact, because Ms Giller had not been able to do so before the breach (and for some technical reasons relating to the way the case was pleaded) and due to the fact that the nature of the harm that she had suffered was mental distress falling short of a mental illness, no compensatory remedy was available to her in lieu of an injunction after the fact. Ms Giller appealed.
The Court of Appeal unanimously found that a case for breach of confidence had been made out. It also reasoned that it would be wholly inappropriate for injunctive relief to be available to Ms Giller had she acted in time, but for compensatory relief to be denied to her because she was not able to do so. The Court of Appeal noted that there was an absence of Australian case law on the issue of whether distress and humiliation could alone justify monetary compensation. They cited cases in the United Kingdom which recognised that compensatory remedies were appropriate in these circumstances. They also noted that there was no contrary case authority or legislation in Australia. The Court of Appeal ordered damages against Mr Procopets.
Because the plaintiff had succeeded in making out a claim for breach of confidence regarding the unauthorised display of the videos, the Court of Appeal found it unnecessary to conclusively decide whether a tort of breach of privacy should be recognised under Australian law. Two of the judges did, however, briefly consider the issue.
Ashley JA noted in passing that the legal protections offered in the currently recognised areas of law, including through breach of confidence, have continued to develop to address novel situations such as this. Neave JA commented at length about the development of the tort of invasion of privacy in overseas jurisdictions. Her Honour also referred to
Australian decisions dealing with invasion of privacy claims, as well as to State and Commonwealth law reform reports in this area. Neave JA also pointed to some of the practical difficulties in delimiting how such a tort would apply.
Though neither Ashley or Neave JJA positively found a tort of invasion of privacy to exist, neither referred to any Australian cases authoritatively ruling out such a tort being recognised in the future. While a tort invasion of privacy may not entirely overlay the ambit of situations where breach of confidence would be available, it is likely that it would apply in similar circumstances. In view of this, it would be unlikely to have any direct interaction with State and Commonwealth privacy legislation.
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Further Information
For further information or legal advice on any issues raised in this newsletter contact:
Dr Adrian Hoel on 8684 0214
Senior Solicitor
Alison O'Brien on 8684 0416
Senior Solicitor
The VGSO is the primary source of legal services to the Victorian State Government and its statutory authorities, providing strategic advice and practical legal solutions.
