Recommendation 10–4 A person should not be able to bring an action under the new tort after the earlier of:
(a) one year from the date on which the plaintiff became aware of the invasion of privacy; or
(b) three years from the date on which the invasion of privacy occurred.
Recommendation 10–5 In exceptional circumstances, the court may extend this limitation period, but the period should expire no later than six years from the date on which the invasion occurred.
10.76 This recommendation aims to balance the interests of both parties to a proceeding, providing adequate time for a plaintiff to appreciate and manage the emotional and financial repercussions of a serious invasion of privacy, while also providing certainty for defendants.
10.77 In most cases, a person whose privacy has been invaded will become aware of the invasion of privacy soon after it occurs. Intrusions upon physical seclusion will often be known immediately. If private information is published in popular media, again the subject of the information will usually know of its publication quite soon. If they wish to bring an action, they should generally do so within one year from the date on which they became aware of the invasion of privacy.
10.78 A reasonable but confined limitation period will protect defendants from claims relating to incidents that occurred years before and where witnesses may have difficulty recalling events. It would be burdensome on defendants if a longer limitation period led to uncertainty and anxiety as to whether they are likely to be sued. Preparing a defence case and calculating the likely cost of litigation and possible remedies may be more challenging the longer a plaintiff takes to initiate proceedings.
10.79 Professor Peter Handford outlines three policy rationales for limitation periods: to protect defendants from claims relating to incidents which occurred years before about which witnesses may have difficulty recalling events or finding records; to encourage quick resolution of litigation; and to provide finality for defendants.
10.80 The recommendation is consistent with the one year limitation period prescribed for actions in defamation. Consistency with the position in defamation law may avoid the risk that plaintiffs will bring multiple actions at different times for overlapping harm. Defamation actions are based on damage to a person’s reputation, a harm which is complete on publication. In some cases, the same publication may be an invasion of privacy because it discloses private information.
10.81 In contrast to actions in defamation, actions in personal injury, which generally have a longer limitation period of three years, are based on injury to the individual which may take longer to eventuate.
10.82 This recommendation is also consistent with the limitation periods in the Privacy Act with respect to when the OAIC can hear complaints. A complaint of privacy interference by an APP entity can be made within 12 months from the date the applicant becomes aware of the relevant act or conduct. The OAIC then has discretion as to whether or not to investigate a complaint of privacy interference made after this date. The OAIC supports the application of a similar limitation period to a statutory cause of action for serious invasion of privacy.
10.83 Several stakeholders supported a one year limitation period, although some said a court should be able to extend the limitation period beyond three years. The New South Wales Law Reform Commission proposed a one year limitation period. Several stakeholders supported a one year limitation period, in line with defamation law. ASTRA argued that a one year limitation period would provide certainty to defendants and encourage the timely and proper administration of justice. Furthermore, ASTRA argued that a short limitation period would prevent plaintiffs from delaying bringing proceedings in order to gain a windfall in damages caused by the accumulation of hurt or distress.
10.84 In some circumstances, a person may not know for some time that their privacy has been breached. Where a plaintiff does not know of an invasion of privacy for some time, the ALRC recommends that they have three years from the date on which the invasion of privacy occurred to bring an action.
10.85 A number of stakeholders said that a one year limitation period was too short, and that the period should run from the date when the plaintiff first becomes aware of the action. The Victorian Law Reform Commission proposed a three year limitation period, consistent with actions for personal injury. Several stakeholders proposed a limitation period of three years from the date when the plaintiff becomes aware of the invasion, expiring no more than six years from the date on which the invasion occurs. SBS said the limitation period should start from the ‘initial publication or disclosure’.
10.86 The limitation periods for the new tort should not start when damage accrued to the plaintiff. Commencing the limitation period from the date when a plaintiff experiences damage or harm as a result of the invasion of privacy, would require a plaintiff to demonstrate damage, thus conflicting with the ALRC’s recommendation that the new privacy tort be actionable per se.
10.87 By way of comparison, defamation actions run from the date of publication. Actions in personal injury commence from the date of discoverability. In NSW, ‘discoverability’ is taken to be from when the plaintiff ‘ought to have known’ that the ‘injury or death concerned has occurred’.
10.88 Some stakeholders argued for much longer limitation periods. One pointed to the six year limitation period for those seeking remedial relief for unlawful interception under s 107B of the Telecommunications (Interception and Access) Act 1979 (Cth). Some stakeholders suggested there should be no limitation period at all. However, the ALRC considers that it is important that there be a limitation period, and that concerns about unfairly denying a person the opportunity to bring an action may be met by allowing the court to extend the limitation period in exceptional circumstances.
Extending limitation period
10.89 The ALRC recommends that, in exceptional circumstances, the court should be able to extend the limitation period to six years, from the date when the serious invasion of privacy occurred.
10.90 Several stakeholders also argued that individuals may be too distressed to turn their minds to bringing legal action to redress the invasion of their privacy. The Law Institute of Victoria (LIV) said that ‘it takes time for people to realise that they have a legal right that has been breached, especially where they have been seriously affected by the breach itself’. It was also submitted that victims of family violence may ‘find it hard to gain the necessary strength and resources to bring an action within a short period. These are some examples of the sort of exceptional circumstances in which a court may extend the limitation period.
10.91 Some stakeholders submitted that a court should only be able to extend the limitation period to three years. Others said the court should be able to extend it further. Some suggested that applications for time extensions were expensive and vigorously fought, and that it would therefore be better simply to make the standard limitation period longer.
10.92 Limitation periods may be extended or postponed at the discretion of a court in a number of circumstances. The Limitation Acts in all Australian jurisdictions allow for the grant of an extension where the plaintiff is a person living with a disability or where there is fraud or mistake. In NSW, most actions are subject to an ultimate bar of 30 years, with some exceptions for actions in wrongful death and personal injury.
10.93 Defamation law provides that a court may allow an extension of up to three years from the date of publication of the defamatory matter, ‘if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within 1 year from the date of the publication’.
10.94 There are many circumstances where courts are asked to consider extensions where it is ‘just and reasonable’ to both parties to a proceeding. Section 23A(3) of the Limitation Act 1969 (NSW) includes a non-exhaustive list of matters that a court may reconsider when extending a limitation period for actions in personal injury. The matters include:
(a) the length of and reasons for the delay on the part of the plaintiff;
(b) the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;
(c) the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;
(d) the duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action;
(e) the extent to which the plaintiff acted promptly and reasonably once he knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;
(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.
Peter Handford, Limitation of Actions: The Laws of Australia (Thomson Reuters (Professional) Australia, 3rd ed, 2012) [5.10.120].
Limitation Act 1969 (NSW) s 14B; Limitation Act 1985 (ACT) s 21B(1); Limitation Act 1981 (NT) s 12(2)(b); Limitation of Actions Act 1974 (Qld) s 10AA; Limitation of Actions 1936 (SA) s 37(1); Defamation Act 2005 (Tas) s 20A(1); Limitation of Actions Act 1958 (Vic) s 51(1AAA); Limitation Act 2005 (WA) s 15.
See, eg, Limitations of Actions Act 1958 (Vic) s 5(1AA); Limitation Act 1969 (NSW) s 18A(2).
Privacy Act 1988 (Cth) s 41(1)(c).
Office of the Australian Information Commissioner, Submission 66.
T Butler, Submission 114; Office of the Victorian Privacy Commissioner, Submission 108; Public Interest Advocacy Centre, Submission 105; Australian Sex Party, Submission 92; Australian Bankers’ Association, Submission 84; S Higgins, Submission 82; Guardian News and Media Limited and Guardian Australia, Submission 80.
NSW Law Reform Commission, Invasion of Privacy, Report 120 (2009) [9.1].
Telstra, Submission 107; ASTRA, Submission 99; ABC, Submission 93; SBS, Submission 59.
ASTRA, Submission 99.
UNSW Cyberspace Law and Policy Community, Submission 98.
N Witzleb, Submission 29.
Victorian Law Reform Commission, Surveillance in Public Places, Report 18 (2010) [7.248] and Rec 33.
Law Institute of Victoria, Submission 96; Women’s Legal Service Victoria and Domestic Violence Resource Centre Victoria, Submission 48; N Witzleb, Submission 29.
SBS, Submission 59.
See, eg, Limitation Act 1969 (NSW) s 14.
Ibid s 50D.
Women’s Legal Services NSW, Submission 115; Public Interest Advocacy Centre, Submission 105; Law Institute of Victoria, Submission 22.
Law Institute of Victoria, Submission 96.
Domestic Violence Legal Service and North Australian Aboriginal Justice Agency, Submission 120.
ABC, Submission 93.
Women’s Legal Services NSW, Submission 115; Public Interest Advocacy Centre, Submission 105; N Witzleb, Submission 29.
See, eg, Law Institute of Victoria, Submission 96.
Handford, above n 75, [5.10.2150].
Limitation Act 1969 (NSW) s 51(2).
Ibid s 56A; Defamation Act 2005 (SA) 2005 s 56A.
Limitation of Actions Act 1958 (Vic) s 27K(2)(b).