3.52 A common law tort for invasion of privacy has not yet developed in Australia, despite the High Court leaving open the possibility of such a development in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd in 2001. A tort of invasion of privacy has been recognised by two lower court decisions: Grosse v Purvis in the District Court of Queensland and Doe v Australian Broadcasting Corporationin the Country Court of Victoria. Both cases were settled before appeals by the respective defendants were heard. No appellate court has confirmed the existence of this tort.
3.53 Commenting on Grosse v Purvis, Heerey J in Kalaba v Commonwealth of Australia held that the weight of authority was against the proposition that the tort is recognised at common law. In Chan v Sellwood; Chan v Calvert, Davies J described the position on the existence of the tort at common law as ‘a little unclear’. In Gee v Burger, McLaughlin AsJ considered the matter ‘arguable’.
3.54 In Giller v Procopets, the Supreme Court of Victoria Court of Appeal found it unnecessary to consider whether the tort of invasion of privacy exists at common law, having upheld the plaintiff’s claim on the basis of the equitable action for breach of confidence.
3.55 In Dye v Commonwealth Securities Ltd, Katzmann J noted ‘that it would be inappropriate to deny someone the opportunity to sue for breach of privacy on the basis of the current state of the common law’.
3.56 In Maynes v Casey, Basten J, with whom Allsop P agreed, referring to Australian Broadcasting Corporation v Lenah Game Meats and Giller v Procopets, said that ‘These cases may well lay the basis for development of liability for unjustified intrusion on personal privacy, whether or not involving breach of confidence’, but held that the facts as found were against the plaintiff. The trial judge had concluded that he did not consider the defendant’s conduct ‘to be an undue or serious invasion of any right to privacy possessed by the plaintiffs or to be highly offensive to a reasonable person of ordinary sensibility’.
3.57 In Saad v Chubb Security Australia Pty Ltd, Hall J in the NSW Supreme Court considered a claim brought by the plaintiff against her employer and the security firm engaged to monitor the workplace, after CCTV images of the plaintiff at work were posted on a Facebook site, probably by an employee or former employee of the security firm. Ball J refused to strike out a claim for breach of confidence, holding ‘I do not consider that, at this stage of the proceedings, it is open to conclude that the cause of action for breach of confidence based on invasion of the plaintiff’s privacy would be futile or bad law’.
3.58 In Sands v State of South Australia, Kelly J stated that ‘the ratio decidendi of the decision in Lenah is that it would require a further development in the law to acknowledge the existence of a tort of privacy in Australia’.
3.59 Recently in Doe v Yahoo!7 Pty Ltd, Smith DCJ said, ‘it seems to me there is an arguable case of invasion of privacy. … I would be very hesitant to strike out a cause of action where the law is developing and is unclear’.
3.60 The general consensus then is that the likely direction of the future development of the common law is uncertain.
Australian Broadcasting Commission v Lenah Game Meats Pty Ltd (2001) 208 CLR 199.
Grosse v Purvis  QDC 151 (16 June 2003). See also, Des A Butler, ‘A Tort of Invasion of Privacy in Australia?’ (2005) 29 Melbourne University Law Review 352.
Doe v Australian Broadcasting Corporation  VCC 281 (2007).
Kalaba v Commonwealth of Australia  FCA 763 (8 June 2004) 6.
Chan v Sellwood; Chan v Calvert  NSWSC 1335 (9 December 2009) .
Gee v Burger  NSWSC 149 (13 March 2009) .
Giller v Procopets (2008) 24 VR 1.
Dye v Commonwealth  FCA 720 . However, Katzmann J refused leave to the plaintiff to amend her pleadings to include such a claim, on various grounds.
Maynes v Casey  NSWCA 156 (14 June 2011) .
Maynes v Casey  NSWDC 285 (23 December 2010) .
Saad v Chubb Security Australia Pty Ltd  NSWSC 1183 .
Sands v State of South Australia  SASC 44 (5 April 2013) .
Doe v Yahoo!7 Pty Ltd  QDC 181 (9 August 2013) –.