Jane Doe v Australian Broadcasting Corporation & Others
Reference:  VCC 281
Court: County Court of Victoria (Melbourne)
Judge: Hampel J
Date of judgment: 3 Apr 2007
Summary: Privacy - Breach of confidence - Rape victim - Identification - Breach of reporting restriction - Breach of statutory duty - Negligence - Measure of damages - Aggravated damages - Exemplary damages
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Instructing Solicitors: McKean & Clark for the Plaintiff; Cornwell Stoddard for the Defendants
The Claimant was a rape victim. Under s.4(1A) Judicial Proceedings Reports Act 1958 it was an offence to publish material likely to lead to the identification of the victim of a sexual assault. The assailant was the Claimant’s husband. On the day of his sentencing, the ABC broadcast 3 news reports about the case. In two bulletins, the defendant was identified by name, and the offences of which he was convicted were described as rapes within marriage. In one bulletin, in addition to this information, the Claimant was identified by name as the victim. She had, after the rape, reverted to her maiden name, and it was that name which was broadcast. The journalist and editor who were responsible for the broadcast both admitted a breach of the Act and apologised to the Claimant. She brought civil proceedings for breach of statutory duty, negligence, breach of confidence and breach of privacy.
(1) Whether a claim for breach of statutory duty was available;
(2) whether the Defendants owed a duty of care to the Claimant and if so, whether that duty had been breached;
(3) whether breach of confidence had been established;
(4) whether a tort of breach of privacy was available in Victoria; and, if liability was established;
(5) the appropriate measure of damages.
(1) Applying Byrne v Australian Airlines (1995) 185 CLR 410, a claim for breach of statutory duty was available as the Claimant was within the class of persons in respect of which the section intended to afford specific protection;
(2) the Defendants owed a duty of care to the Claimant and that duty had been breached by the identification of the Claimant in the broadcasts;
(3) breach of confidence was established. Applying the English development of breach of confidence, the confidence was not destroyed by the fact that a number of the Claimant’s friends and relatives knew that she was the rape victim;
(4) a tort of breach of privacy was available in Victoria; and
(5) the appropriate measure of damages was AU$110,000 general damages (including AU$25,000 for hurt feelings) and AU$124,190 special damages. No award of aggravated or exemplary damages.
In Lenah Game Meats, the High Court did not close the door to the possible development of a law of privacy in Australia. The Judge in this case has taken the opportunity to do so. The analysis of the English case law relating to breach of confidence (and its development to embrace wider privacy interests) is interesting (see §§104-128) but may betray a failure fully to grasp the very real impact Article 8 has had on the development of English Law. It may not be so easy simply to transplant the product of Article 8 on the common law directly into the domestic law of Australia which has no equivalent of the ECHR. The finding of breach of statutory duty (cf. WB v H Bauer Publishing Ltd) and the assessment of damages on the common law basis – rather than equitable compensation – are also worthy of note.