Grosse v Purvis - [2003] QDC 151

DISTRICT COURT OF QUEENSLAND

CITATION:

Grosse v Purvis [2003] QDC 151

PARTIES:

ALISON ROBYN GROSSE
  Plaintiff

and

ROBERT JAMES PURVIS
  Defendant

FILE NO:

D110 of 2002

DIVISION:

District Court

PROCEEDING:

Trial

ORIGINATING COURT:

Maroochydore

DELIVERED ON:

16 June 2003

DELIVERED AT:

Brisbane

HEARING DATES:

3-7; 10-12; 18 February; 31 March; 3 April; final written submissions 16 April 2003

JUDGE:

Senior Judge Skoien

ORDER:

Judgment for Plaintiff for $178,000 with interest

CATCHWORDS:

Action for damages for breach of right to privacy, quantum of damages

COUNSEL:

Mr P Dunning for the plaintiff
Mr J Curran for the defendant

SOLICITORS:

Klooger Phillips Scott for the plaintiff  Richard O’Bryen Solicitors for the defendant

The plaintiff’s claim against the defendant is for:-

(a) damages for invasion of privacy;

(b) damages for harassment;

(c) damages for intentional infliction of physical harm to the plaintiff;

(d) damages for nuisance;

(e) damages for trespass;

(f) damages for assault;

(g) damages for battery;

(h) damages for negligence;

(i) a permanent injunction restraining the defendant from touching, approaching, harassing, pestering or communicating with the plaintiff in any way;

(j) a permanent injunction restraining the defendant from visiting or entering upon any dwelling at which the plaintiff resides;

(k) interest;

(l) costs,

and the damages sought are compensatory, aggravated and exemplary.

Index

These reasons are divided into chapters under the following headings:-

Background – paras [3] – [14]

Litigation – paras [15] – [20]

Sexual Relationship Plaintiff/Defendant - paras [21] – [24]

Massage Business – paras [25] – [43]

Peripheral Matters – paras [44] – [60]

Credibility of Witnesses other than plaintiff and defendant – [paras 61] – [152]

Credibility of Plaintiff – paras [153] – [169]

Credibility of Defendant – paras [170] – [176]

Evidence of stalking – paras [177] – [338]

Conclusions on stalking – paras [339] – [341]

Psychological/psychiatric Evidence – pass [342] – [372]

Consequences of the stalking – paras [373] – [385]

Statute of Limitations – paras [386] – [397]

Justification of Defendants Conduct – paras [398] – [414]

Action for Invasion of Privacy – paras [415] – [447]

Action for Harassment – paras [448] – [451]

Action for Intentional Infliction of Harm – paras [452] – [455]

Action for Negligent Infliction of Harm – paras [456] – [458]

Action for Trespass – paras [459] – [462]

Action for Nuisance – paras [463] – [465]

Action for Battery – paras [466] – [468]

Action for Assault – paras [469] – [470]

Compensatory Damages for Breach of Right to Privacy – paras [471] – [475]

Aggravated Damages for Breach of Right to Privacy – paras [476] – [480]

Exemplary Damages for Breach of Right to Privacy – paras [481] – [482]

Total Damages for Breach of Right to Privacy – paras [483] – [484]

Damages for Intentional Infliction of Harm – para [485]

Damages for Trespass – paras [486] – [489]

Damages for Nuisance – para [490]

Injunction – [491]

Conclusion – [492]

Background

The plaintiff was born on 30 August 1949 and thus is now aged 53 years. She was educated to matriculation level in Victoria but passed only the art course. She went to Art College and then married Mr Peter Kerr in 1969, having three children of their own and adopting a fourth. They moved to the Sunshine Coast in the early 1970’s, where they ran a guesthouse.

She then became actively engaged in adult education and put a great deal of effort into the establishment of a Technical and Further Education (“TAFE”) College as well as the betterment of unemployed and homeless youth. Then, especially from about 1992 onward she turned her attention to the establishment of a University on the Sunshine Coast, a goal which was ultimately achieved in 1996.

From about the end of the 1970’s the plaintiff actively worked towards what I gather was a novel scheme to help unemployed youth, attending public meetings and becoming a member of a steering committee. She went to Sydney to engage the support of the ACTU Lend Lease Foundation. As a result, in about 1983 there was incorporated a non-profit company called Sunshine Coast Regional Group Apprentices Ltd which is commonly referred to as “SCRGAL” (and pronounced “scraggle”). The plaintiff became a foundation director of SCRGAL and in about 1992, the chairman of directors. SCRGAL (and other similar bodies) was designed to overcome a perceived difficulty in young people obtaining apprenticeships because of the reluctance of tradespeople, faced with lack of work continuity, to sign articles of apprenticeship for the required period of four years. Since its incorporation SCRGAL has employed many apprentices, placing them with tradesmen engaged in work.

On the evidence given in this trial I am satisfied that the establishment of the TAFE, the University and of SCRGAL on the Sunshine Coast was very much because of the efforts of the plaintiff, in recognition of which she was awarded the Medal of the Order of Australia in 1994. The defendant was one of her sponsors. In his examination in chief he spoke of her contribution to the establishment of the above three institutions in the most glowing terms thus:-

“If it wasn’t for Alison Grosse I wouldn’t have been sitting in the chair I was sitting in. We wouldn’t have a university. We wouldn’t have a TAFE College.”

The defendant was born on 17 December 1940 and is thus now aged 62 years. His training was as an electrician and was later an electrical salesman. He moved to the Sunshine Coast in 1980. In 1984 he became the founding Chief Executive Officer of SCRGAL, later filling the position of its Managing Director, a position he retained until 21 December 2001. There is no dispute that he was a worthy appointment. He quickly got SCRGAL established so that very soon and certainly by the end of its first decade, it was running very efficiently. During that period the plaintiff, as a director, attended meetings as required and her relationship with the defendant was a friendly, professional one. However to a large extent, during the years 1986-1988 she was heavily involved in representing local government at such events as World Expo 88.

The plaintiff’s marriage to Mr Kerr broke up in about 1985 and they divorced in 1988. She remarried to Mr John Jones, a newspaper executive in 1989 and they also divorced in July 1996. However they had fully separated in the matrimonial sense at the end of 1993 although they continued to live together under the same roof until September 1998, that is, even after their divorce. The plaintiff has remained on friendly terms both with Mr Kerr and Mr Jones. On 9 September 2000, the plaintiff married her present husband Mr Rene Grosse, a vegetable farmer. He is considerably younger than the plaintiff.

In 1994 the defendant separated from his wife and that has been the situation since then. They remain on good terms although there have been some matrimonial disputes between them.

In March 1997 the plaintiff was elected a councillor for Division 8 of the Maroochy Shire Council. On 25 March 2000 she was elected Mayor of the Shire, a position which she continues to occupy.

To assist in identifying times, places and events it is helpful to list the parties’ residential addresses and phone numbers. During the following material periods the plaintiff has resided at the following addresses at which the stated land phone lines were connected:-

DATES	ADDRESS	PHONE NUMBERS
Various/Intermittently	19 Cootamundra Drive, Mountain Creek	5477 6524 5477 6523
January 1992 to 29 August 1996	27 Karawatha Drive, Mountain Creek	478 0420 (ph) 478 1504 (fax)
29 August 1996 to September 1999	39 Wharf Road, Bli Bli	5448 5235 (ph) 5448 5231 (ph/fax)
Approximately September 1999 To January 2000	69 Point Cartwright Drive, Buddina	54776396 (plaintiff) 5452 5896 (fax) 5444 5827 (Rae Barry)
January 2000 to June 2000	21/20 Village Green, Buderim Boulevard, Buderim	5476 7821 (ph) 5477 0601 (fax)
11 June 2000 to approximately August 2000	207-209 Lindsay Road, Buderim	5492 8369
July/August 2000 to approximately February 2001	79 Blackall Terrace, Nambour	5476 2513 (ph) 5476 1112 (fax)
Since February 2001	Lot 260 Pryor Road, Verrierdale	5449 1865 (ph)

In addition to those land lines, the plaintiff had, during the stated periods, the use of the following mobile phones:-

DATES	SUBSCRIBER	PHONE NUMBERS
Approximately January 1994 to December 1994	SCRGAL mobile	018 060 848
Approximately January 1995 to December 1996	SCRGAL mobile	019 628 969
Approximately January 1996 to June 2000	SCRGAL mobile	0419 667 520
Approximately May 2000 Onward	Maroochydore Shire Council mobile	0407 678 149

At all material times the defendant lived at 11 Essex Court, Brisbane and made use of the following phones during the stated periods:-

DATE

TELEPHONE NUMBER

    1992 – Present

     5445 3784

    1992 – 1993

     018 713 677

    1993-1994

     018 060 848

    1994 – 2001

     SCRGAL mobile: 0419 662 174

    1988 – 30/8/2000

SCRGAL Switch Board @ Big Top Shopping Centre: 544 2914 & 5443 2144

    30/8/2000 – Dec 2001

SCRGAL Switch Board @ Evans Street: 5443 2914 & 5443 2144

Pre-occupation with her children kept the plaintiff away from active work with SCRGAL until the early 1990’s, when she became the Chairman of the Board. This threw her into close contact with the defendant and each of them agrees that they worked together efficiently and effectively. She described to me her feelings towards him in 1992 as friendly, “like having another brother”, his manner as “very easy-going”.

Litigation

As will appear, relations between the plaintiff and the defendant have gradually soured since 1992, culminating in the issue of those proceedings on 8 April 2002. From the beginning the claim was as set out in para [1] above but the statement of claim (not drawn by Mr Dunning) left much to be desired. There then ensued a number of interlocutory applications, to strike out, for leave to re-plead, for particulars, etc. Ultimately such an application came before me on 11 October 2002 (Mr Dunning by then appearing for the plaintiff). Mr Curran has at all times been counsel for the defendant.

In an effort to get the matter heard as soon as possible I gave leave to re-plead again. On 25 October 2002, recognising the length of the relevant period and the multiplicity of events said to be relevant, I made directions pursuant to rule 367 of the Uniform Civil Procedure Rules limiting the events to be particularised to a representative number and setting the trial for the week commencing 3 February 2003 before me. In the event, the number of sitting days required was not five but thirteen. Both counsel strove to stay within the spirit of my directions.

The overall legal issue which must be answered is first, whether the causes of action relied on (or some of them) exist and, second, whether they have been made out. The factual issues are diverse but broadly speaking are whether the alleged acts of the defendant occurred, and if so, whether they were wrongful or were done with the express or implied consent of the plaintiff or should be regarded as lawful because they were done for the benefit of the plaintiff. Then, of course, there is potentially the assessment of damages, compensatory, aggravated and exemplary.

In her statement of claim and its further particulars the plaintiff alleges a persistent course of loitering by the defendant at or near her places of residence, work or recreation, instances of spying on her private life, instances of unauthorised entry to her house and yard, instances of unwelcome physical contact, instances of repetitious offensive phone calls to her, some at unreasonable times, instances of the use by him of offensive and insulting language to her and instances of his offensive behaviour to her friends and relatives.

The defence generally denies those allegations and where admissions are made of acts of the defendant they are generally alleged to have been innocent. Although the defence does not, to my mind, expressly say so, it seems implicit in it that the defendant also sets up that such of his conduct as was, prima facie, intrusive of the plaintiff’s privacy, was justifiable in that it was done for the protection of the plaintiff’s reputation and career and/or for the protection of the reputation of SCRGAL, in which both had a deep interest. Certainly the defendant’s case was developed that way.

Of necessity the evidence was wide ranging and often consisted of what might at first have been taken to be inadmissible. For example evidence of statements by a party that a phone call which had just concluded was from a particular person was sometimes admitted as part of the res gestae (following the principles laid down by Lord Wilberforce in Ratten v R (1972) AC 3787 at 389-391 requiring the condition of such spontaneity or involvement in the event that the possibility of concoction can be disregarded). Some evidence seeming to be hearsay was admitted as going to the state of belief of the witness. Then there were occasions when objectionable evidence was not objected to, most likely because counsel (both of them experienced) perceived a tactical reason for refraining.

Sexual Relationship, Plaintiff/Defendant

A Christmas break-up party of SCRGAL was held at the end of 1993 and afterwards the plaintiff and defendant left together. They talked of personal relationships and held hands. The plaintiff gave evidence that the defendant displayed a personal interest in her, which made her uncomfortable; the defendant gave evidence that the attraction seemed mutual. The plaintiff said that the defendant asked her to accompany him to a Christmas function in Brisbane on the following Monday and to stay the night which she initially refused but to which she agreed on the Sunday. The defendant said that the plaintiff, who had occasionally hinted at a possible romantic liaison between them, asked him if she could accompany him. In any event they went to Brisbane and spent the night together at the Travelodge where sexual intercourse occurred.

The plaintiff’s evidence was that sexual intimacy between them re-occurred, the total number of acts being not more than six to ten, ending in late 1994 or early 1995 since when it has not occurred. The defendant’s evidence was that it occurred regularly from the beginning of 1994 until the last occasion, 5 January 2000. He said it occurred 35-45 times a year until about 1996 when it tapered off to between once or twice a month; later he said four or five times a month, never less than four times a month.

The plaintiff said she was somewhat reluctant to commence this sexual relationship because, while she understood the defendant’s marital life with his wife to be non-existent, she knew him to be married. She said that she thought his interest in her would pass, but she candidly conceded that she willingly engaged in sexual intercourse on the six to ten occasions when approaches were made to her by the defendant. In cross examination she maintained that even then her feelings for the defendant were never greater than close friendship, and that she did not enjoy their sexual acts.

She said, most emphatically, that she avoided the defendant’s frequent attempts to kiss her and denied that she ever kissed him sexually, something which she said revolted her. The tenor of the defendant’s evidence was that she was at all times a willing, even enthusiastic sexual partner, right up until 5 January 2000. He kept a diary and his evidence was that he made a practice of writing a, “√ ” or “yes” on those days when sexual intercourse between them occurred. The diary evidences many of those notations.

Massage Business

In 1989/1990 the plaintiff undertook a twelve month course with the Swedish Massage Institute and obtained a diploma in that discipline. I understand, and the contrary was not suggested, that to be a recognised form of genuine therapeutic massage. During 1994 she decided to put her training to work to earn an income and so set up the business in a room in the house owned jointly by her and Mr Jones at 27 Karawatha Drive, having obtained the necessary permission of the Shire Council to operate it. She advertised in the local newspaper under the “Therapeutic Massage” column and clients attended the business.

In evidence in chief she said that one client asked her to perform sexual favours and, taking hold of her hand, demonstrated that he sought masturbation. She said she told him she was not interested. She emphatically denied that she ever offered sex in any form to clients of the business. In cross-examination she agreed that clients had propositioned her for masturbation on more than one occasion.

She said that the defendant reacted adversely to the carrying on of the massage business saying that she was risking her reputation and her OAM, that she was under investigation for running a brothel, that he himself had records of clients’ number plates, that unspecified people (“they”) were “on to you”, that a written report had been prepared on her. He said that he had pleaded with people to stop them taking the OAM and that it was up to him to save it. Indeed, she said, he went further and alleged that she had performed sexual intercourse with clients, masturbated them and permitted them to masturbate in her presence. He repeated to her, accurately, a conversation she had actually had with a client. His reports of the identity of clients and description of their vehicles were disturbingly accurate. He insisted that he regale these alleged activities of hers to her. She said that he expressed these concerns and made those allegations daily while the business was in operation, with increasing emphasis. She said that his (or any) allegations of sexual impropriety were baseless.

One night, the plaintiff said, the defendant came to her home with a document (exhibit 5) which was an unsigned purported report of a woman who had come to the massage establishment and talked to her. He said that it was only one of many documents “they’ve got on you” and “they’ve had people in here watching you”. He said “This is just one of heaps of other documents they’ve got on you”. He mentioned a Brisbane solicitor called Peter Maher, the police, and unspecified investigators as people interested in her activities.

Exhibit 5 is a photostat copy of a document dated 19 August 1994 which appears to be in the form of a report from an investigator about the activity of “our female agent”. Immediately I notice that the document has no letterhead or address of any description. It appears to be an entire report but it is unsigned although I consider there is sufficient room for that at the foot of the second, the last, page. In the body of the report the masseuse is reported as saying she permitted clients to masturbate while she looked away, made a reference to Ian Pashen who was said to be starting up a fantasy phone call service and escort agency, and referred to the possibility of the client/agent being a suitable escort for a prominent Caloundra politician called John about whom she made some equivocal remarks, possibly indicating the sexual expertise of John. She said that her husband did not know what went on in the massage room, and winked.

The plaintiff gave evidence of the visit of a young woman client whom she massaged but who, the plaintiff said, seemed more interested in enquiring how she might become a professional escort, a job in which she said big money could be made. The plaintiff said she spoke discouragingly and tried to make light of it although she said it made her quite distressed. It is clear that this client was the agent referred to in exhibit 5.

In cross-examination the plaintiff conceded that she told this client/agent of an occasion when a male client requested masturbation and when he persisted she threw a towel at him and said “I’m sick of this. I’m going out. You do it yourself” and left the room. On her return she said it became apparent that he had been joking and she conceded she probably hadn’t been strict enough, but that it had been a bit of a shock to her. She also conceded that she and the client/agent had discussed a particular male patron of the business as a possible person for the client/agent to take up with and they theorised on his ability as a lover. She said that in the context of their conversation this was “just joking”.

From about this time, the plaintiff said, the defendant would berate and belittle her regularly using such expressions as “you’re sick”; “you need my help; “I’m here for you”; “you’re finished without me”. He spoke of records which had been kept of many car number plates, of lots of records and photographs. He referred to psychiatrists to whom those records had been shown. When she asked to see them he said that he did not have them and that “they” had merely shown them to him. He also mentioned, unfavourably, the name Ian. She had a client called Ian.

Finally, she said, she became so upset with these threats and accusations and the provision by him of many accurate details of her activities that she determined to move the massage business to a medical centre where there would be less likelihood of untrue accusations and the attendance of undesirable clients. She operated the business there for a few months, I gather in 1995.

In cross-examination she recalled that either before or after she moved the business to the medical centre she moved it to the Big Top Shopping Centre in Maroochydore, where SCRGAL had its offices and said that this was at the insistence of the defendant. She said he was obviously anxious to keep an eye on the business. Furthermore, they planned to offer a course of therapeutic massage to be taught at SCRGAL and to that end had advertising material printed. The plaintiff was to be the instructor, in conjunction with a trained nurse. However the plan did not prosper and she kept up the business there only for a matter of weeks before moving to the medical centre. She attended to a total of five clients, two of whom were hers and three were part of the SCRGAL programme.

The defendant in evidence denied that he ever spied on the massage business or made the threats ascribed to him by the plaintiff. To the contrary, he said, the plaintiff boasted to him of the money she was making and once triumphantly waved $600 in notes, saying that it represented only two days work “with extras”. He pointed out to her the possible consequences of these activities (which included the threat to her OAM) and tried unsuccessfully to persuade her to word her advertisements to specify that no “extras” would be available.

He said that the plaintiff actually named men she had provided extras for and specified an Ian Pashen (now deceased), a Rohan Wise, a man from Cadbury’s, an Indian man and an Ian Flett.

In about August 1994, at the Big Top, he said he was accosted by a man whom he recognised as a debt collector who had done some work for SCRGAL, who asked him if he knew the plaintiff. On being told that the defendant did, the man said “Do you realise she’s mixed up in the massage business? Can you get word to her that she’s being watched? Tell her to watch out; it’s a very, very dangerous business and she’s being watched.” A few weeks later he found exhibit 5 in his office, apparently having been pushed under the door. He copied it.

He said he showed exhibit 5 to Mr Wilkinson, SCRGAL’s solicitor, who told him that he had heard the plaintiff had been doing “favours for politicians in the area for some time”. He said that Mr Wilkinson shortly afterwards told him he believed the client/agent to have been an employee of a firm of solicitors, which he named.

It is worthy of mention that when Mr Wilkinson was asked in chief about the occasion when he saw exhibit 5 (some time before 5 July 1999), he said that it was the defendant who emphasised that it established prostitution on the plaintiff’s part. He said that he regarded it as a “fairly bland and at best ambiguous outline of what was going on”. It certainly was not his evidence that he, at any stage, had any information or belief that she was behaving immorally.

According to the defendant, the plaintiff moved the massage business to the SCRGAL premises at the Big Top because, he said, she had become paranoid and felt it would be safer to operate there. He denied he had suggested the move. He said that the room in which she worked was beside his office and lack of soundproofing made it possible to hear what went on there. On one occasion the customer was Ian Flett (whom the plaintiff had told him used to seek masturbation) and the defendant heard him ask the plaintiff for that service. She was unwilling because of the lack of privacy but he persuaded her. The defendant, who then stormed into the room, caught them in the act. In cross-examination it was put to the plaintiff that the defendant objected to her providing “extras” in SCRGAL premises but this Ian Flett incident was not put to her.

When under cross-examination, it was put to the plaintiff that a Rowan Wise acted aggressively towards her and had requested masturbation. She admitted the former (a karate demonstration) but denied the latter proposition.

It was put to her that she had told the defendant that she had masturbated Ian Flett (denied), Mal Pratt (denied), Ian Pashen (denied) and John McGaw (she responded that he had placed her hand on his penis but she removed it within five seconds and declined - see para [26] above). She said that all of these suggestions had first been made to her by the defendant while she was running the business. She said that he reported to her in accurate detail the nature of the propositions, which a few clients (for example John McGaw) had made. She said that the defendant angrily demanded that she masturbate him, which she refused to do.

The evidence on the subject of the massage business was relevant and important because, on the plaintiff’s case it was the beginning of the defendant’s intrusive interest in her private life, of his aggressive denigration of her conduct, of his description of the close interest which unnamed “other people” were taking in her and of his particular role in protecting her. On the defendant’s case it was relevant because it was said to be a course of conduct, which the defendant believed, was likely to react very adversely on the plaintiff (his close friend and lover) and on SCRGAL (their common business interest).

Peripheral Matters

A good deal of the evidence concerned suggestions that the plaintiff (and perhaps also the defendant) had misspent SCRGAL money and misused SCRGAL property for the private advantage of her, of him and also Mr Jones, matters investigated by the Cole Royal Commission. This evidence was designed to attack the credit of the plaintiff, the defendant and Mr Jones. I gained no critical advantage from this aspect of the case which, in any event, touched only lightly on what must have involved very much more complicated circumstances than I was made privy to. Despite this, I propose later to return to some aspects of this evidence.

Another section of the evidence concerned the extent to which the defendant assisted the plaintiff at the elections of 1997 and 2000. While it may be that the defendant’s help for the mayoral election in March 2000 was considerably less than in 1997, there is no doubt that he did assist her materially, at least in the last days of the campaign. I do not see much in this. Whatever view be taken of the relationship between the plaintiff and the defendant, it seems clear that he generally assisted her to succeed in her career moves, at least up to March 2000. The real question, as I see it, relates to their out-of-hours, non-business relationship.

A large number of witnesses were called by the defence who gave evidence of the apparently good relationship between the plaintiff and the defendant at material times. They spoke of them lunching together on working days and generally behaving in an overtly friendly way. Others spoke of their apparent friendship, even affection, on social occasions. Indeed, Mr Malcolm gave evidence of their dancing together at a SCRGAL function (probably in November 1998) in a style, which he described as “dirty dancing”. Mr Manley said that on occasions between November 1994 and November 2002 (he did not identify the particular dates) he saw them socially, looking as if they were “very much in love with each other”. However, he also said that they were acting “very professionally”, a description also used by Miss Bacon (para [135]).

When asked to describe, “dirty dancing”, Mr Malcolm said that they were in a tight clinch with the fronts of their bodies touching. That is to me a reasonable description of dancing as it was practiced by many people for decades, until separate dancing became common in more recent times. I do not think that it was looked on by the participants then as a form of sexual activity. Mr Manley, in elaboration of his assessment of the relationship between the plaintiff and the defendant spoke of their tone of voice, their conversation, holding hands and occasionally dancing. Interestingly, he did not suggest that their dancing was of the type to cause comment of the type Mr Malcolm made. Nor did Miss Bacon, who gave evidence of seeing them dancing together.

In my opinion, the descriptions given by Mr Malcolm and Mr Manley cannot be accepted. They describe the public display of closeness, familiarity, intimacy between the parties, which goes well beyond the evidence of any other witness and more importantly beyond the evidence of the parties themselves. The plaintiff’s evidence was that she did not like familiar physical contact with the defendant and tried to avoid and discourage it. The defendant’s evidence was that there used to be some affectionate physical contact in public but he did not suggest that it was ever extreme and he never said that they ever danced together in a way which would attract a comment of the type made by Mr Malcolm. Nor did he ever say that he and the plaintiff were very much in love. He described a continuing sexual relationship with the plaintiff during which, he said, the plaintiff also bestowed her favours on other men. The tenor of his evidence of his feelings towards her suggested an infatuation rather than love. The plaintiff, of course, said that there was never anything more than close friendship, which included, in 1994, a small number of acts of sexual intimacy.

All in all, I cannot take the evidence of the witnesses referred to in para [46] as establishing very much of relevance. Experience of life teaches us that people, even quite close friends, often have no real understanding of the true relationship between two people who are seen regularly but on only fairly brief, unremarkable, occasions. The fact that two people give an outward show of friendship, even affection, can be very misleading. Indeed, the breakup of a relationship between two people (even, for example, marriage) frequently astonishes their friends who have seen them often and intimately for many years but obviously have not been able to discern a serious deterioration in the relationship.

There is a further complicating feature, which affected many of these witnesses, especially those who gave evidence of the behaviour of the defendant at the Buderim Bowls Club. In general they gave evidence of phone calls received by the defendant which he answered in such a way as to indicate that the caller was the plaintiff. Any opinion they formed of the relationship between the parties could only have been based on what they gathered from the defendant, hardly a dispassionate basis for assessment. For example Mr. Millerick gave evidence that the defendant told him that he and the plaintiff were “a couple”. And, at best, this evidence established that frequently (but over a rather vague period) the inference to be drawn was that the defendant left to have a meal with the plaintiff. That was, as was readily conceded by the plaintiff, the case at least until late 1996, and occasionally later. Those who had seen the events up to late 1996 would no doubt assume that thereafter a phone call received by the defendant, followed by his departure, was just more of the same and it is not difficult to imagine them telling newcomers that the defendant was off to see the plaintiff with whom he enjoyed a close domestic relationship, thereby establishing that as a fact in their minds.

Then there is the well known difficulty experienced by almost all people who are asked to recall, without reference to an aid such as a diary, unremarkable events which occurred well in the past and to identify the period over which they occurred, or in the case of a particular event, the date on which it occurred. It is obvious that if such a person is first approached by one of the parties who lacks the forensic understanding of a lawyer, a leading question can, perhaps quite innocently, put into the mind a period or a date which does not reflect the actual memory of the person.

In my view it is quite likely that such a thing occurred in respect of the evidence of Miss Owen who gave evidence of the receipt by the defendant at his home of a phone call at about 11 pm on Monday 17 April 2000, a date made relevant by other evidence. Her typewritten statement gives that date, but is itself dated 28 February 2003, almost three years later. I found her attempts to explain why the day and date of a fairly unremarkable event would remain so long in her mind to be unconvincing. At the end of cross examination she said:-

“…. If someone walks past me and makes a comment and every other night nothing else happens that’s when I know – that’s why I knew it was a Monday night, probably.”

Then, when asked if she knew what she was doing on 17 April last year she said:-
“The 17^th of April was Easter. I went to – I was in Victoria”.

Reference to my calendar/diary for 2002 satisfies me that 17 April 2002 was not any part of the Easter period, which fell between 29 March and 1 April. So I was not favourably impressed by her ability to recall specific dates and certainly not three years after the event. I cannot accept her evidence of events of the night of 17 April 2000.

The evidence of Miss Owen also referred to another issue raised in the defence, namely an allegation that the plaintiff’s husband Rene Grosse dealt in marijuana. She said that she passed on to the defendant some information on the subject. Her evidence of that information was relevant to the defendant’s state of belief even though the information itself was, as Mr Curran conceded, hearsay. In fact it turned out to be hearsay on hearsay, being what a flatmate told her (Miss Owen) that another person had told the flatmate. Of course it did not go any way to establish the truth of the allegation (of a drug deal) and it seems to me that anyone who was given that information and placed the slightest credence on it would have a very undeveloped sense of fair play and no idea at all of what amounts to hard evidence of a fact.

When Mr Grosse gave evidence he emphatically denied that he was either a drug user or a drug dealer. In cross examination it was not put to him as a fact that he had ever dealt in drugs. He was merely asked whether he had ever smoked cannabis, to which his answer was “No”. But it was not put to him as a fact that he had smoked the drug so it seems clear that Mr Curran did not at that point have any firm instructions of either drug use or drug dealing. Nor did any evidence of either of those activities emerge during the trial despite a particular of the defence alleging sale and supply by him of marijuana. The defendant simply said in cross-examination that he had “some evidence” of Mr Grosse dealing in drugs. In re-examination he conceded that it was hearsay information but supplied no elaboration to indicate the strength of that information as a basis for his belief. He added the comment, gratuitously, that Mr Grosse had introduced the plaintiff’s adopted son to marijuana at the age of 13 and “he’s now schizo”. In the absence of explanation and in the light of his other evidence I assume that also to have been based on hearsay. There was other evidence that the boy’s schizophrenia was inherited.

The evidence of Mr Grosse was that on 30 August 2000 the defendant, in a phone call to the plaintiff also spoke to him and accused him in an abusive voice of being both a drug addict and a drug dealer, warning him that to marry the plaintiff would be her downfall. Further, he said that on two occasions when he was sitting on a side porch of the house at Blackall Terrace (ie between August 2000 and February 2001) he smoked roll-your-own tobacco cigarettes and immediately after each occasion the defendant phoned to say “I’ve seen you, caught you rolling joints and smoking them”, which would indicate that the defendant was spying on the house. Only the evidence of those last two episodes was challenged as a fabrication in cross examination. He also said that on 28 February 2001, when he and the plaintiff were in the SCRGAL office of Mr Williamson to sign some documents the defendant entered, physically assaulted him by pushing a fist into his face and called him a drug dealer and a drug user.

Thus there was not a scrap of evidence given in this trial that Mr Grosse had ever had any connection at all with illicit drugs. Furthermore it is clear that any belief which the defendant may have had on the subject was based solely on rumours. To form such a belief on that basis, to maintain that belief and then to act towards Mr Grosse as he did reflects poorly on the defendant’s credit. Finally, the relevance of this aspect of the case as an attack on Mr Grosse’s credit, there being no suggestion at all that the plaintiff aided, abetted or even knew of any such conduct by him is somewhat puzzling.

Discussion of Mr Grosse leads me to discuss evidence relating to allegations in the defence that he is the father of a child, Taylor, born to Mr Grosse’s daughter, Miss Kerr (formerly Mrs Radke) on 21 January 1993. Miss Kerr’s evidence was that Mr Grosse had been her boyfriend in the late 1980’s. She said that there was in that period a sexual relationship for a couple of years that is, some years before the birth of Taylor. She was asked in cross examination merely:-

“Is it possible that he is the father of Taylor?”

To which she replied:-
“Absolutely not.”

Assuming the topic to be relevant to this action it is significant that Mr Grosse was not asked in cross examination any questions at all on the subject, for example whether he had been intimate with Miss Kerr on any occasion before the birth of Taylor which could have led to conception of the child. Nor was Miss Kerr herself asked anything more than what appears in para [57] above. Evidence was led of opinion held by some people, for example Mr Raynor, that someone, (it was suggested the plaintiff) had some sort of public duty to have the boy’s paternity established by DNA tests. That such a thing was suggested, in evidence was not just irrelevant, but would be repellent to any decent person.

The plaintiff’s evidence suggested that she valued Mr Grosse, above all, as a protector against the defendant’s alleged harassment. I accept that her marriage to Mr Grosse, her daughter’s boyfriend of some ten or eleven years earlier, would be considered by most people to be unusual but I doubt that it would be regarded by fair minded people as scandalous so as to be a worthy subject of disapproval as some witnesses seemed to think. The matter is complicated by the fact that the plaintiff is a political figure and political figures must expect their private lives to be the subject of interest, even scrutiny (provided that scrutiny is reasonable). However the defence, supplemented by the further particulars given, does not seek to justify the behaviour of the defendant critical of Mr Grosse and the marriage on that basis. The defence simply alleges his paternity of the child Taylor without saying why this might be relevant.

There is not a scrap of evidence of that paternity. I am unable to see any basis on which the promulgation or repetition of gossip or rumour about the alleged paternity could in any way reflect credit on those responsible for it or participating in it. In particular the receipt by the plaintiff of exhibit 12, (a document crudely suggesting that Mr Grosse was the father of Taylor) via the defendant and Mr Hulett, could have served no useful purpose and would have been greatly upsetting to any reasonable recipient. The plaintiff said she found it to be most offensive and the implication contained in it, to the best of her knowledge, to be totally untrue. Again, it is difficult to see how, in any event, the question was relevant to the issues in this trial or even to anyone’s credibility.

Credibility of Witnesses other than Plaintiff and Defendant

Many of the witnesses gave evidence on matters which in my view were of no special relevance or gave little assistance on the matters in issue. It is unnecessary to dwell on their evidence or to make findings on their credibility. There were, however, some witnesses whose evidence fell into quite a different category and assisted me not just in making findings of fact, but also in assessing the credibility of the two central characters, the plaintiff and the defendant. I now summarise the evidence of these witnesses, the significance of which, if not immediately obvious will emerge later.

Mr McGrady gave evidence that in mid 2000 he lived at 77 Blackwell Terrace, Nambour beside the house into which the plaintiff and Mr Grosse moved, No 79. About two weeks after that date, at twilight, he saw a man standing inside the driveway of No 79 peering around the corner of the house. He said the security light came on. Speaking from a distance of about 4 metres he asked:-

“Are you all right?”

to which the man replied:
“I’m all right mate; are you?”

and he said he saw the same man at the house a couple of days after the plaintiff had moved out. Soon after, he was shown a photo of a man by Mr Williamson (who gave evidence that it was a photo of the defendant) and identified it as of the man he had seen.

Identification evidence is notoriously suspect but on the balance of probabilities I would have concluded, given the closeness of the two men, the reasonable light conditions, the double sighting and the challenging nature of the response (that being consistent with the nature of the defendant) that the man was the defendant. To put the matter beyond doubt, there is acceptable evidence that the defendant actually admitted it to Mr Williamson. See para [122].

Mr Miguel said he was in the SCRGAL office with the plaintiff in May 1996 when he observed the defendant pressed against the wall just outside the door of the office. This continued, he said, for some ten minutes. When challenged by the plaintiff the defendant briefly came into the office. I accept that evidence. Mr Miguel accepted in cross examination that he had an “amorous relationship” with the plaintiff but no elaboration of that very broad phrase was sought.

Mrs Cansdell said in June 2000 (at a time when the plaintiff, by then the mayor, had made known her aversion to contact with the defendant) she saw the defendant drive at night into the car park of the building where a council meeting was to take place, and take up a park. He drove with the car’s lights off.

Mrs Herbert, a reservations clerk at the Carlton Crest Hotel gave evidence that on 9 June 2000 she sent a fax, which is exhibit 13, which confirmed that the plaintiff was booked to stay at the hotel for the night of 10 June. This was sent at the request of a man who phoned, claiming to be an employee of the plaintiff. He also asked to be told her room number but this was declined on hotel policy grounds. This appeared to annoy him. There is no reason to doubt her evidence, and it is much more probable than not that the man was the defendant.

Detective Constable Lee gave evidence that on 4 April 1999 at 10 pm as a result of a phone call from Mr Lewis, he went to Armour Place, Bli Bli, to a position behind the plaintiff’s house (in Wharf Road). It was raining and he found the defendant, his clothes wet, in a car, who said he had been out walking. At a confrontation shortly afterwards between the plaintiff and the defendant in the Wharf Road house the plaintiff initially told the defendant that she did not want him to come to her house but subsequently the discussion became “clouded” by business discussions. He also gave evidence of the defendant being brought to the Maroochydore police station on the night of 26 March 2000. The plaintiff was also there. Their presence related to a possible complaint of stalking. Mr Williamson phoned and had a lengthy conversation with the detective and, it seems, the plaintiff. Detective Lee did not recall Mr Williamson describing the defendant as his client but had the impression that that was the position. I accept Detective Lee’s evidence.

Mr Binney, on a date he could not recall went to the opening of an advertising agency called Universal Agencies and saw both the plaintiff and the defendant, to whom he spoke separately. The defendant told him that the plaintiff and he were “an item”. I accept Mr Binney’s evidence.

Mr Clatworthy gave evidence that he first met the plaintiff in early 2000 when he was asked by her daughter Paula Kerr (then Mrs Radke) to help in the plaintiff’s mayoral campaign. As a result he became very actively involved with her, seeing her on a virtually daily basis, a frequency which decreased markedly after her election to the mayoralty in March 2000 since when it became occasional phone contacts. He described receiving many phone calls from the defendant of an abusive nature, usually late at night, after 10 pm. These calls decreased marginally up until the time the plaintiff and Mr Grosse became engaged, since when there has been no contact at all.

Mr Clatworthy recalled an incident in which he and the plaintiff were having coffee at the Big Top Shopping Centre when he saw the defendant apparently hiding behind a pillar, watching them. He gave evidence of an evening in February 2000 when he and the plaintiff were on a balcony at his unit and, on leaving, the plaintiff gave him a kiss on the cheek at which the defendant jumped out of bushes in the garden of the unit (an enclosed yard) and said words to the effect of “caught you again”. The defendant abused both of them, actually pushing Mr Clatworthy in the chest. He also told of an occasion before the election when, on leaving Mrs Grosse’s house in Village Green (ie the first quarter of 2000), he found all four tyres of his car let down, a unique event in his experience. That night his phone message bank had a recording of sarcastic laughter on it. When this circumstantial evidence is viewed in the context of the entire evidence, it is impossible to avoid the conclusion that the defendant was responsible for the deflated tyres and the phone call.

Nothing emerged about Mr Clatworthy in evidence which would make me suspect he would be untruthful on oath to help the plaintiff. Indeed when asked, of the defendant:

“Did he make unflattering remarks about Mrs Grosse?”
he said:
“Look, I honestly can’t remember.”

Thus he did not take up the opportunity which was open to him had he been antipathetic to the defendant, or partial to the plaintiff, to give evidence to support her cause.

It is of significance, given that the defendant in his further and better particulars named Mr Clatworthy as one of “the plaintiff’s continuous stream of lovers”, that it was not put to him that he had ever been intimate with the plaintiff. Nor was the plaintiff asked whether she had been intimate with him. Indeed the only evidence of such intimacy comes from an entry in the defendant’s diaries.

Mr Kerr, the plaintiff’s first husband, gave evidence that in July 2000, at the Cootamundra Drive house he spoke to the defendant who showed him a document about bi-polar mental disorder, which he said he had got from Mr Hulett (which was, I conclude, exhibit 11). They disagreed on whether the plaintiff had the condition and an argument developed about the harassment of the plaintiff, which Mr Kerr accused him of pursuing. The defendant claimed not to know where the plaintiff then lived but Mr Kerr’s evidence was that he himself had seen the defendant parked outside the plaintiff’s then residence at Lindsay Road, Buderim, only to drive off when Mr Kerr arrived. He also gave evidence of receiving unsolicited phone calls from the defendant in which the defendant complained of the men the plaintiff was seeing. He also spoke of seeing the defendant driving in the immediate vicinity of the plaintiff’s house. When he was recuperating from illness at the plaintiff’s house in late 1998 he found the defendant’s abusive attitude to the plaintiff annoying to the extent that he would retire to bed and ultimately left the house. In cross examination he said that the plaintiff was expressing concerns about the defendant’s stalking of her during 1998, 1999 and 2000. Mr Kerr struck me as being a dispassionate witness and I accept his evidence.

Ms Flux is the personal assistant to the mayor at the Maroochy Shire Council, a position she held before the plaintiff’s election. She gave evidence of many incoming phone calls on the Council’s land line from the defendant, varying from a few a day to once a week. Obviously these have been since March 2000. On five or six occasions she has observed the plaintiff break down after one of these calls, sometimes culminating in a physical collapse to the floor. She described the plaintiff on these occasions as distraught. On two occasions she has found the plaintiff in a state of collapse in the car park, each time complaining of a phone call from the defendant. Her evidence of the identity of the caller, as stated by the plaintiff, was admitted as part of the res gestae. She also said she saw the defendant at two Council meetings. In cross examination she said that the calls which resulted in the plaintiff physically collapsing occurred during the period of dispute relating to the defendant’s employment at SCRGAL. I saw no reason to reject Ms Flux’s evidence.

Mr Spiller, the Chief Executive Officer of the Maroochy Shire gave evidence of seeing the plaintiff in a distressed state, crying uncontrollably, at least ten times in the first 18 months since her election as mayor, that is, since March 2000. These episodes followed phone calls from, as the plaintiff told him, the defendant. He himself received a phone call at home from the defendant who said that he wanted to meet him to tell him things he should know about the mayor. Mr Spiller declined that invitation. He said that the plaintiff has been an enthusiastic and diligent mayor. In cross examination he said he has never seen the plaintiff become heated or upset in relation to other phone calls. I accept Mr Spiller’s evidence.

Mrs. Barry, the mother of the plaintiff, gave evidence of the plaintiff living with her at 69 Point Cartwright Drive, (September 1999 – January 2000). Late one night in 1999, when Mr Hungerford had called to see the plaintiff, she heard her call out “Come out Robbie, I know you’re there” whereafter she saw the defendant emerge in the back yard. He then talked to the plaintiff in a loud, bossy, belligerent angry voice. In cross-examination she said the defendant had also, on occasions, behaved like a gentleman and had helped the plaintiff, for example, to move house. I accept her evidence.

Mr Hungerford, a farmer, was a constituent of the plaintiff in 1999. He gave evidence that he called to see her at 69 Point Cartwright Drive, about a political problem on (it seems most likely) 14 October 1999. The two of them were looking at plans in the kitchen, when she went to the window and called “Rob, I know you’re out there” and then went outside from where he heard a conversation that was not friendly. The plaintiff and defendant then came inside and “had their issue out”. They were agitated. This was obviously the same occasion as is described in para [76]. I note that although the defendant’s pleadings particularised Mr Hungerford as one of the plaintiff’s “continuous stream of male lovers”, that allegation was not put to him in the witness box.

Mr Lewis, an RSPCA inspector and former New South Wales policeman, met the plaintiff through her participation in an animal welfare committee in late 1998 or early 1999. Very early she expressed concern at being stalked so he inspected the movement activated lights at her house at Wharf Road, Bli Bli (which on the evidence the defendant had installed) and found that the light globes had been unscrewed sufficiently to de-activate them. He recalled another evening at about 8.30, seeing a man in a car parked near her home begin to use a mobile telephone when he and the plaintiff in their car approached her house. At the end of the street he saw the defendant’s car. They then drove to her house and within thirty seconds her phone rang. The plaintiff spoke on the phone, immediately becoming very distressed, and saying loudly “leave me alone Rob, I don’t need this”. He told the plaintiff he was going to take her to a safer place, and they walked outside. As he was seating her in his car the defendant approached, shouting at the plaintiff. He then approached Mr Lewis, shouting at him that he was “a criminal”. Mr Lewis tried to calm the defendant, without success. The defendant threatened physical harm to Mr Lewis, referring to the fact that he, the defendant, had “connections”. He pushed Mr Lewis so hard that he fell back into the door of his car, denting it.

Early in this confrontation, Mr Lewis activated a mini tape recorder in his pocket and after being pushed he produced it, an action which apparently startled the defendant who then withdrew, made a show of noting the number plate of Mr Lewis’s car before driving away. Although the plaintiff was hysterical, she refused to be taken elsewhere and went inside her house. After unsuccessfully attempting to persuade her to phone the police, Mr Lewis left and while driving home he was called on his mobile phone by the defendant who abused him angrily, again referring to his “contacts” and saying “You don’t know what you’ve got yourself into”. Mr Lewis again activated his tape recorder during this phone call.

Mr Lewis said that he then phoned the police to report the matter, but did not take it any further. In the years intervening between that night and being contacted by the plaintiff’s solicitors he has lost or recorded over that tape. In evidence the defendant clearly accepted that Mr Lewis did indeed produce the tape recorder on the night in question.

Mr Lewis said that on a subsequent night, (which other evidence identified as 4 April 1999) at the plaintiff’s Wharf Street house, a phone call was received by her. She became upset, saying, “Rob, leave me along, I don’t want this any more, I can’t cope with this”. Mr Lewis then set off in his car and located the defendant in his car in the street behind the plaintiff’s house. Donning a raincoat (against the pouring rain) he walked up to the defendant’s car where he saw him to be using a phone. He could hear the defendant shouting, using the name “Alison”. The defendant, apparently oblivious of Mr Lewis’s presence, got out of his car and walked into the yard of the house which was immediately behind the plaintiff’s house. Mr Lewis immediately phoned the police and soon after saw the police with the defendant. This was the occasion of which Constable Lee gave evidence (see para [67]). He phoned the plaintiff to tell her what he had seen, advised her to co-operate with the police, and left.

Mr Lewis was also particularised in the defence pleadings as one of the plaintiff’s “continuous stream of male lovers” but he was simply asked by Mr Curran in cross-examination “Did you have a romantic relationship with her” to which his answer was “no”. He confirmed to Mr Curran that his firm advice to the plaintiff was to make a complaint to the police. He also confirmed that he had heard various short phone conversations apparently from the defendant to the plaintiff, which had been cordial.

I saw no reason to reject the evidence given by Mr Lewis.

Mr Jones, the plaintiff’s former (and second) husband gave evidence. He was in the habit of keeping detailed daily diaries and he was able to refer to them in evidence to identify certain events and, helpfully, the dates on which they occurred. I accept that his diary entries were accurate.

At 7.30 pm on 14 June 1995 Mr Jones heard the defendant talking, as if on a mobile phone, outside the house at 27 Karawatha Drive. When he went outside the defendant was not there. He said that the defendant once told him that he wanted the plaintiff to move the massage business to the SCRGAL office. On 18 July 1995, when the massage business had been re-located to the doctor’s surgery at Mountain Creek, he saw the defendant parked over the road apparently observing the surgery. On 23 July 1995, at night, he saw a figure in the side yard of their home consistent with the physique of the defendant. It is significant in relation to his credibility that he declined to identify the man positively as the defendant although the plaintiff did so. On 12 September 1995 at 8.30 p.m. the house security lights came on illuminating the defendant who was on the other side of the fence, apparently watching the house. When the plaintiff challenged him, he ran off.

On 21 May 1966, Mr Jones said, the defendant was a guest in the house. At about midnight there was a shouted exchange between the plaintiff and the defendant. A similar episode occurred on 5 June 1966. Mr Jones intervened and made a personal remark of the defendant to which he replied “I’ll knock your block off, Jones”. He recalled another occasion when a similar altercation involving the three of them resulted in his picking up a chair and the defendant pushing him to the floor. He gave evidence of other, less dramatic, occasions when the conversations became heated. He said that on these occasions the defendant was reluctant to leave. These things happened, it must be remembered, in Jones’s own home. At 8 p.m. on 24 September 1996, Mr Jones said he saw the defendant standing outside their Bli Bli house for no apparent good reason.

On 6 April 1997 at 8 p.m. Mr Jones said he saw the defendant standing outside the front of the house looking at it. At about 8 p.m. on 22 May 1997 he again saw the defendant loitering outside the house. On 22 October 1997 the defendant phoned the house and, the plaintiff being absent, Mr Jones answered. He told the defendant she was at a political meeting in Brisbane. When he looked outside a few times during the night (until the late hours) he saw, on each occasion, the defendant there.

Mr Jones’ 1998 diary records further examples of heated altercations between the plaintiff and the defendant at her residence.

Mr Jones said that on 9 April 1999 at the request of the plaintiff he went to her Wharf Road house (they had by then ceased to live in the same house) where he found her to be very agitated at an event which had occurred concerning the defendant being at or near her house a few nights before (the episode of 4 April 1999 as to which see paras [67] and [81]). They were joined by Mr Hewitt, Mr Manly and Mr Hulett. A discussion took place about the defendant’s fitness to manage SCRGAL. Shortly after Messrs Hulett and Manly left, the plaintiff received a series of phone calls, each of which seemed to upset her greatly. Mr Jones answered one of the calls. It was from the defendant who was very aggressive. I have no doubt that all the calls were from the defendant. The plaintiff said, “I’ve had enough of this”, took an overdose of sleeping pills, collapsed and was taken to hospital where she was admitted, her stomach was pumped and she remained overnight.

It is obvious to me that the events of 4 April (the defendant being apprehended by police near the house after being seen by Mr Lewis to be approaching it via the yard of the house behind), the reaction of the defendant to the calling of the police (abusive of the plaintiff) and the phone calls of the night of 9 April upset the plaintiff greatly. Indeed, these things would have been upsetting to almost anyone. Given that the pills were taken in the presence of others, I consider that the prospects of her dying were remote and I doubt that it was a serious attempt at suicide. However, I accept that it was the act of a woman who had been driven to make a dramatic gesture, a “cry for help” as it is often tritely put. The dramatic extent of the gesture may have been contributed to by the histrionic personality of the plaintiff but it was nonetheless an expression of the anguish she undoubtedly was experiencing.

Mr Jones gave evidence of hearing the defendant’s voice on the plaintiff’s answering machine saying, “We’re watching you Ali”. His diary of 24 March 2000 (when he was living for a brief period at her unit at Village Green) records his being awakened at 12.30 a.m. by the plaintiff talking on the phone, apparently to a friend. He called out “What are you doing Alison?” and heard from outside his bedroom window the defendant’s voice say “She’s fucking Nick Clatworthy, John, that’s what she is doing”. He saw the defendant the next day who said “Sorry about last night, John”.

Mr Jones said that on the night of 25 March 2000 at about 7 pm the defendant phoned him and wanted to give him details of sexual liaisons he said the plaintiff was having. Mr Jones refused to discuss the matter. At about 6.30 p.m. on 22 April 2000 he, the plaintiff and a couple of her relatives walked out of the Village Green unit to see the figure of a man run off. He and the plaintiff followed the man and found it to be the defendant who was squatting behind a parking sign. He said he had come to deliver Easter gifts.

The evidence of Mr Jones, though tested in vigorous cross-examination, did not waver on any point which I thought to be material. He candidly conceded matters which he would not have done had he been so partial to her cause as to be willing to depart from the truth. For example, he said that in 1999, at the Wharf Road house, he saw the two on a bed with the defendant “cuddling” the plaintiff, which in context seemed to be massaging her legs. He agreed that he had frequently advised the plaintiff to cease contact with the defendant. He agreed that the defendant had been active in the mayoral election campaign. To the question “Mr Purvis treated Alison like a proper gentleman should, in your presence” his answer was “mostly”. This answer, favourable to the defendant, suggests impartiality on the part of Mr Jones.

The final question in Mr Jones’s cross-examination followed that exchange. It was “I suggest he invariably did” to which the recorded answer is “yes”. However I cannot accept that as a recanting by him of all of his evidence of the defendant’s aggressive confrontations, of loitering, and of abusive phone calls. It frequently occurs that a witness answers “yes” to a suggestion, meaning no more than an acknowledgment that the suggestion has been put. Whether this answer amounted to more than that was not investigated.

I accept Mr Jones as an important and truthful witness in relation to the matters I have summarised.

The plaintiff’s husband Mr Grosse gave evidence. I have already referred to that part of it which concerned allegations of his involvement in illegal drug production and use and allegations concerning his paternity of the plaintiff’s grandson (paras [54] – [60]). I have rejected those allegations. Of relevance is his evidence (see para [55]) that on two occasions between August 2000 and February 2001 the defendant was apparently spying on the plaintiff’s and his house at Blackall Terrace. He also gave evidence of an occasion in early August 2000 at about 9 pm when he surprised two intruders who had been in the backyard. He gave chase and saw two cars drive off. One of them, he saw, was being driven by the defendant. He also gave evidence of the night of 30 August 2000 (the plaintiff’s birthday) when the two of them were spending the night at the Mercure Hotel at the Gold Coast. At about 10 pm the plaintiff began to receive a succession of phone calls from the defendant (Mr Grosse listened in and identified the voice). He spoke to the defendant himself (see para [55]). All told he said there were about seven calls that night during which he could hear the defendant speaking rudely and aggressively. He recalled an occasion at the Big Pineapple for an Arts Awards night, when he observed the defendant to be constantly staring at her. Mr Grosse’s evidence was not shaken in cross-examination and I accept it.

Mr Wilkinson was a very important witness. He is a solicitor who acted for SCRGAL from about 1993 onward and on 5 July 1999 became employed by SCRGAL as its in-house solicitor a position he retained until 31 January 2003. An objection was taken to his giving evidence on behalf of the plaintiff on the grounds that a solicitor/client relationship existed between them in respect of matters the subject of his evidence. Mr Wilkinson vehemently denied that proposition.

On the evidence it seems that from time to time the defendant told Mr Wilkinson of matrimonial difficulties he was experiencing and, as a favour, he gave him brief pieces of “one off” advice. In 2001 when the defendant received a solicitor’s letter he helped him draft a reply. At that time he said to the defendant “If I’m to do anything about this, you’ll need to give me facts and figures” but he never received them. His name appears as solicitor for the defendant (as purchaser of some real estate) on a contract dated July 1996 but there is no evidence how it came to be there and Mr Wilkinson denied that he ever acted in the transaction. He said that he has never had a file for the defendant as a client for anything, has never rendered an account and never been paid any money by him for professional services rendered.

Mr Wilkinson said he has never given legal advice to the defendant in relation to the plaintiff and any dispute between them. He has on occasions told him not to stalk the plaintiff, but said he did so simply as the solicitor for SCRGAL, being concerned at what might ensue. He said that it was in that capacity that he spoke to Detective Constable Lee on the night of 26 March 2000 when he was phoned by the defendant from the Maroochydore police station in the early hours of the morning in connection with his arrest on suspicion of stalking the plaintiff. He conceded that he could have described himself as the defendant’s solicitor but if he did so he said it was just to facilitate his attempts to extricate SCRGAL, the plaintiff and the defendant from a potentially disastrous situation.

It is not unusual for a lawyer to give off the cuff legal advice to a colleague or friend without any solicitor/client relationship being created. The creation of that relationship depends on the common intention of the parties to enter into a contract, that is, a retainer (44 Halsbury’s Laws of England, 4^th ed. para 83). Generally the retainer relates only to the specific business in hand (Saffron Walden Second Benefit Building Society v. Rayner (1880) 14 Ch.D. 406 at 409, per James LJ). I am of the view that no such intention existed on the part of either of them at any material time in relation to any matter discussed between the defendant and Mr Wilkinson concerning the plaintiff. I might say, in passing, that if the defendant’s vehemently expressed opinion of Mr Wilkinson’s poor performance as the solicitor for SCRGAL over the years was even partly genuinely held by him, it would be astonishing if he ever engaged Mr. Wilkinson to act for him.

If, however, the relationship did exist, privilege only attaches to confidential communications passing between a client and a legal advisor if made for the dominant purpose, either:

(a) to enable the client to obtain, or the advisor to give, legal advice; or

(b) with reference to litigation that is actually taking place or is in the contemplation of the client.

See Heydon, Cross on Evidence, Australian Looseleaf Ed. Para 25210; Esso Australia Resources Ltd v. FCT (1999) 201 CLR 49.

Even if the defendant were the client of Mr Wilkinson, none of the latter’s evidence about what was said to him by the defendant would qualify under (a). On each occasion (except in relation to the arrest on 26 March 2000) the defendant was simply telling Mr Wilkinson of events and there is no suggestion that he was doing so in order to get advice on the relationship between the plaintiff and him. To the contrary, he was boasting. Nor did (b) apply because at the time of each of the discussions no litigation was contemplated.

As to the discussion between the defendant and Mr Wilkinson at the police station on 26 March 2000, two things can be said. First, there does not seem to have been any exchange in order to get legal advice, simply a request for Mr Wilkinson to contact the plaintiff and get her to withdraw the complaint. Second, even if that was an instruction to a solicitor, the privilege was waived by the defendant’s instructions to speak to her and actually pass on to her the matters which he and the defendant had discussed.

With his written submissions Mr Curran forwarded to me two letters which Mr Wilkinson appears to have written on behalf of the defendant in relation to a neighbour dispute about a tree. I assume I was being asked to admit them in evidence. I decline to do that at that stage of the proceedings. In any event they could not establish or tend to establish a solicitor/client relationship in relation to the plaintiff’s current action.

Mr Wilkinson first became aware of allegations by the plaintiff that she was being stalked by the defendant in the latter half of 1998 when she came to his office in a hysterical state. Until then he had observed only a co-operative business relationship between them. But from early 1999 he became increasingly drawn into the deteriorating state of affairs between them.

Mr Wilkinson said the defendant often spoke of the plaintiff in the most glowing of terms, praising her achievements, especially in relation to SCRGAL. At other times, he said, the defendant would describe her to him as disgusting, a woman of low morals or no morals, even a prostitute, using these epithets many times to him. He said that he did not want to marry her, nor live with her, but wanted to live near her so as to be closely associated with her.

Once Mr Wilkinson began to work full time for SCRGAL (July 1999) he developed the habit of phoning the defendant each work morning at 7.30 and each time the defendant would raise what the plaintiff had done the night before, which “they” had reported to him. Sometimes he named and described men she had been with, even socially, in a disapproving way, and often suggested sexual contact. The names Benny Pike and Ian Pashen were often mentioned. The defendant showed Mr Wilkinson a copy of exhibit 5 which the defendant said “they” had commissioned. He said that the defendant’s comment was, “There it is, prostitution. She’s prostituting herself”. On other occasions he referred to her as a prostitute.

During the 7.30 am phone calls the defendant’s language about the plaintiff tended to be very basic, for example “She was fucking ‘(a named man)’ last night”. Frequently the plaintiff would later speak to Mr Wilkinson and would mention the name of her companion of the preceding evening and the venue they had attended which accorded with what the defendant had told him.

The defendant told Mr Wilkinson of the plaintiff’s relationship with Mr Lewis and was obviously hostile to it. He said that he had caused a friend to phone Mr Lewis pretending to be a former colleague from their days in the New South Wales police in Sydney to try to obtain some information about Mr Lewis’s activities as a policeman.

The defendant gave Mr Wilkinson a vehicle registration number and asked him to have a search made to identify the owner of the vehicle. He did so and found it was Mr Hungerford. The defendant said he had seen the car in front of the plaintiff’s house a couple of times.

After the suicide attempt of 9 April 1999 Mr Wilkinson said he was aware that both the plaintiff and the defendant sought counselling. He said that subsequently the defendant reported to him that he had been able to convince the counsellor that it was not he, but the plaintiff, who needed treatment. When asked why he did not simply cut off social connection with the plaintiff he told Mr Wilkinson that he could not, because of his caring and nurturing nature. He said that it was thanks to the efforts of him and “them”, that the plaintiff’s OAM had been saved.

Mr Wilkinson said that the defendant spoke derisively of Mr Jones’s complete inability to prevent him from entering their home and said that he just used to ignore Mr Jones. He boasted to Mr Wilkinson of his courage in physically confronting Benny Pike. When, as he often did, he spoke of “all those men”, Mr Pike’s name was always the first mentioned. The defendant also boasted of physically confronting Mr Lewis, (see para [78]). He told him of his annoyance that when approached by police one night he had been wearing jeans on which the fly had come undone. He told Mr Wilkinson of throwing tennis balls at the plaintiff’s house and of wrapping a toad around a tennis ball which he left near the house of male friend of the plaintiff’s. He described her relationship with Mr Miguel as an example of her “disgusting behaviour”.

There were many occasions, said Mr Wilkinson, of phone calls to him from the plaintiff complaining of some interference from the defendant. When Mr Wilkinson spoke to the defendant to tell him of the complaint, sometimes he would deny it, sometimes he would admit the contact but trivialise it, by not accepting it as a serious matter for complaint.

Mr Wilkinson said he told the defendant “Rob, you are stalking Alison. You’ve got to stop. This is stalking”. The defendant was apparently unconcerned, got off his chair and kicking the two bottom drawers of his filing cabinet said “If ever she came at me with any of that stuff I’ve got enough in there on her to put her away”. He said this interchange occurred more than once, in the latter part of 2000.

Mr Wilkinson said that on one occasion the defendant told him that he looked through the window of the plaintiff’s mother’s house at Point Cartwright Drive and saw her having sexual intercourse with Mr Clatworthy. This is clearly the occasion referred to in the defendant’s diary entry of 17 April 2000, which appears to record an event he observed, even though the defendant gave evidence that the event was merely reported to him. I accept that he told Mr Wilkinson that he himself saw the activity. On this point, I am quite unable to see that the defendant’s home phone records show that he was home all that night. They show calls made on six occasions between 6:00 p.m. and 9:04 p.m. They do not show the defendant to have made these calls. On the evidence there were at least two other people living in the defendant’s residence at that time. Mr Wilkinson told of seeing the defendant on another occasion at the Big Top Shopping Centre, apparently concealing himself behind a pillar and on the arrival of Mr Wilkinson said “She’s over there with Clatworthy”, pointing out the plaintiff and Mr Clatworthy. This is most likely the occasion described to by Mr Clatworthy, see para [70].

Mr Wilkinson gave evidence of driving with the defendant past the plaintiff’s house at Wharf Road, which the defendant identified. He said that he had “some people down there who are friends of mine who sometimes let me know what goes on at Alison’s place”. He also identified places nearby where, he said, he sometimes parked and was able to get to the plaintiff’s backyard. He told Mr Wilkinson of overhearing, from outside her Village Green unit, a phone conversation the plaintiff was having with a friend, Helen McGregor, and repeated the substance to him. Mr Wilkinson later repeated the substance to the plaintiff, who appeared astonished that he knew these facts.

Mr Wilkinson said that the defendant showed him a document he said he had received from Mr Hulett which described the condition known as bi-polar disorder and which he said described the plaintiff perfectly. I am satisfied that was exhibit 11, or a copy of it.

Mr Wilkinson said that in June 2000 the defendant told him of phoning the Carlton Crest and pretending to be the plaintiff’s secretary, to get details of her bookings and of passing the information to Mr Hulett who posted a card to her at the hotel. The defendant’s phone call is no doubt that described in para [66].

Mr Wilkinson said that in about March 2000 the defendant complained to him that he could not locate where the plaintiff was living, other than that she was with her daughter in Lindsay Road Buderim. He complained that the driveways of the houses there were long and sweeping and difficult to see down. He drove Mr Wilkinson to Lindsay Road, stopped, got out, and using a pair of binoculars, apparently looked up one drive. A car driven by Mr Loetsch drove up.

Mr Wilkinson said that he was never aware of any restrictions laid down for the driving of SCRGAL cars. He also said that there would have been very few SCRGAL documents, which necessitated the plaintiff’s signature and could think of none, which would need signing urgently. This is relevant to evidence given by the defendant that he often had to call to see the plaintiff to get SCRGAL documents signed as a matter of urgency.

I have described evidence about alleged SCRGAL defalcations as peripheral [para 44]. However it is noteworthy that according to Mr Wilkinson, on the occasion of the purchase by the plaintiff from SCRGAL of the Cootamundra Drive property, it was the defendant who obtained a valuation to indicate that the price was a fair one, and at the office of the Sunshine Daily Newspaper in late 1999/early 2000, the defendant vigorously defended the propriety of the sale. Mr Wilkinson also denied any knowledge of the plaintiff wrongfully claiming SCRGAL expense money.

Mr Wilkinson gave evidence that he showed a photograph of the defendant to Mr McGrady, (see para [62]). He told the defendant he had done so. The defendant reacted angrily at first but then described with pride how he had not run off, but challenged Mr McGrady. Mr Wilkinson gave evidence in similar terms to the plaintiff and Mr Grosse of the incident on 28 February 2001 in the SCRGAL office (see para [55]).

The SCRGAL employment of the defendant was terminated on 21 December 2001 and that of Mr Wilkinson on 31 January 2003.

In cross examination Mr Wilkinson said that he had acted as the plaintiff’s solicitor on a few occasions. He denied that he regarded the defendant as an enemy and said he is not a personal friend of the plaintiff’s. Much of the cross examination related to matters of SCRGAL business which were relevant to credit. However nothing of particular note was uncovered. I am of the view that so far as the plaintiff and the defendant are concerned he had both their interests at heart because of their positions with SCRGAL but became increasingly conscious of what he judged to be inappropriate behaviour of the defendant which caused him concern and led him to warn the defendant of the possible legal consequences. Ultimately I thought Mr Wilkinson’s credit was unshaken. Much of what he said on the relevant matters could not be mistaken; if they were untrue they would have had to be deliberately untrue. I have no reason to conclude that and I accept the evidence of Mr Wilkinson.

I do not consider that her continued contact with the defendant indicates any willing acceptance of the stalking behaviour. Nor is it possible to believe that the defendant really considered that to be the case. Only if he ignored her complaints and wilfully blinded himself to reason could be have failed to appreciate the effect on her of his stalking conduct. Obsessed though he might have been I cannot accept that he did not know what he was doing, that it was unreasonable, hurtful to the plaintiff, and greatly so. His perseverance with it, I can only conclude, was because he believed that she would ultimately knuckle under, admit the necessity to be controlled by him, and to reject the company of all other men.

I also took it to be part of the defence case that the defendant’s objectionable acts were done only with the intention of protecting her from her own weaknesses and not only for that purpose but also the protection of SCRGAL. I reject that.

Finally I reject the notion that the plaintiff’s bringing this action was in some way an act of revenge or retaliation for the breakdown of a previously happy relationship or for his refusing to help her in obtaining improper SCRGAL expense payments

Action for Invasion of Privacy

Despite the many and varied claims which the plaintiff has made (see para [ 1]) it is clear that the emphasis in these proceedings has been on the conduct of the defendant which has been generally described in the evidence, the submissions and these reasons, as stalking. That conduct is said by Mr Dunning to fall within an actionable civil claim for invasion of privacy.

Surprisingly, “to stalk” and its derivatives in this sense is not yet dealt with by the Oxford English Dictionary (at least, as currently published on the Internet) but the Encarta Dictionary gives it as meaning “to harass” which in turn is defined as “to persistently annoy, attack or bother somebody”. In my opinion, that is the common usage in our community of the word “stalking”.

Unlawful stalking is an offence in Queensland and is punishable, (potentially) by imprisonment (Criminal Code s.359E). It may be helpful to set out material provisions of the Code which deal with the offence.

359 B “Unlawful stalking” is conduct –

(a) Intentionally directed at a person (the “stalked person”); and

(b) Engaged in on any 1 occasion if the conduct is protracted or on more than 1 occasion; and

(c) Consisting of 1 or more acts of the following, or a similar, type –

(i) Following, loitering near, watching or approaching a person;

(ii) Contacting a person in any way, including, for example, by telephone, mail, fax, e-mail or through the use of any technology;

(iii) Loitering near, watching, approaching or entering a place where a person lives, works or visits;

(iv) Leaving offensive material where it will be found by, given to or brought to the attention of, a person;

(v) Giving offensive material to a person, directly or indirectly;

(vi) An intimidating, harassing or threatening act against a person, whether or not involving violence or a threat of violence;

(vii) An act of violence, or a threat of violence, against, or against property of, anyone, including the defendant; and

(d) That –

(i) Would cause the stalked person apprehension or fear, reasonably arising in all the circumstances, of violence to, or against property of, the stalked person or another person; or

(ii) Causes detriment, reasonably arising in all the circumstances, to the stalked person or another person.

Section 359A includes the following definition:

“’detriment’ includes the following –
(a)apprehension or fear of violence to, or against property of, the stalked person or another person;

(b) serious mental, psychological or emotional harm;
(c) prevention or hindrance from doing an act a person is lawfully entitled to do.”

Thus the offence in Queensland of unlawful stalking involves an invasion of the privacy of the victim. The conduct of the defendant, as I have found it, from 1994 onward has included very many acts committed by him (or acts which he obviously counselled or procured), which fall within s.359B of the Code. It may be relevant to note that in perhaps all of the offences contained in the Code in which an individual person would be named in the indictment as the complainant (or victim) an actionable tort is encompassed so that the victim would have the right to sue in the civil court for damages. One might ask why would that not also apply to a new offence like stalking in which the victim suffers personal injury or other detriment?

Counsel have told me that, according to their research, there has been no case in Australia which has expressly given recognition to a right of action for invasion of privacy.

The starting point for an analysis of the relevant elements of a possible tort of invasion of privacy is the decision of the High Court in Australian Broadcasting Corporation v Lenah Game Meat Pty Ltd, (2002) 208 CLR 199. References to the judgment will be to the relevant paragraphs as they appear in the report.

The judgment is a lengthy one which deals with a variety of issues, a number of which are not relevant. However in my view within the individual judgments certain critical propositions can be identified with sufficient clarity to found the existence of a common law cause of action for invasion of privacy. Statements of principle are to be found in those judgments which provide guidance in the formulation of such a cause of action. Academic writings are referred to which also contain statements of relevance.

The Justices who made up the Court in Lenah noted that it has been assumed in Australia, that the High Court decision in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 was authority for the proposition that there was no common law right to privacy which could be enforced by action.

Gummow and Hayne JJ, with whose reasons Gaudron J agreed (at para 78) rejected the suggestion that the High Court’s decision in Victoria Park in fact stood for such a proposition. See generally paras 106–108, 111, 132. Their Honours stated the matter bluntly:-

“Victoria Park does not stand in the path of the development of such a cause of action [of invasion of privacy].” See para 107.

Kirby J said of the decision in Victoria Park that “[i]t may be that more was read into the decision in Victoria Park than the actual holding required.” See para 187. His Honour declined to declare the existence of an actionable right of invasion of privacy, describing it as a difficult question, para 189, but he did not reject the possibility of its existence.

Callinan J did not consider that the decision in Victoria Park ought to continue as authority for the proposition that there is no tort of invasion of privacy in Australia. His Honour arrived at that conclusion on the basis that, at the very least, the case would have been decided differently in 2001 from the way it was in 1937. Indeed His Honour’s reasons probably go so far as to suggest that the case was not correctly decided even by 1937 standards, being “decided by a narrow majority”, and that the reasoning of the minority, especially Rich J, should be preferred. See paras 314-316 and 318-319.

I see nothing in the reasons for judgment of Gleeson CJ to suggest that he in any way differed from the view of the other members of the Court that the decision in Victoria Park presented no bar to the existence of a common law right to privacy in Australia.

As I understand the reasoning of Gummow and Hayne JJ (and therefore Gaudron J) they did not decide that as from the date of their judgment there should be scope for the existence of such a cause of action, which, until a moment before there had not been. Rather, they held that there had been a misunderstanding on this issue since 1937. I consider that Kirby J probably was of a like view and Callinan J decided that, at the least, the matter would be decided differently today.

While neither determinative nor declaratory of the position in Australia, the Court recognised, as a useful starting point, the elucidation of the tort of invasion of privacy as propounded by Professor William Prosser as early as 1960.

Professor Prosser in a paper quoted by Callinan J at para 323 stated it thus:-

“It is not one tort, but a complex of four. The law of privacy comprises four distinct kinds of invasion of four different interests of the plaintiff, which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff, in the phrase coined by Judge Cooley, “to be let alone”. Without any attempt to exact definition, these four torts may be described as follows:
1.Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.

2. Public disclosure of embarrassing private facts about the plaintiff.
3. Publicity which places the plaintiff in a false light in the public eye.
4.Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.”

That categorisation by Professor Prosser was adopted in the treatment of the topic “Privacy” in the Restatement of the Law Second, Torts, 1977, cited by Gummow and Hayne JJ at para 120. Relevant for the purpose of this case are the first three of Professor Prosser’s categories. It is useful to record what is said of them in the Restatement.

The general principle is:-

“One who invades the right of privacy of another is subject to liability for the resulting harm to the interests of the other.”

The tort “Intrusion upon Seclusion” is described as:-

“One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another person or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.”

Conduct identified as “Publicity Given to Private Life” is described as:-

“One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicised is of a kind that

(a) would be highly offensive to a reasonable person, and

(b) is not of legitimate concern to the public”

The actionable conduct described as “Publicity Placing Person in False Light”, is described as:-

“One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if
(a)the false light in which the other was placed would be highly offensive to a reasonable person, and
(b)the actor had knowledge of or acted in reckless disregard as to the falsity of the publicised matter and the false light in which the other would be placed.”

Gleeson CJ at paras 41 et seq also saw the four categories as useful for comparison as to how privacy might develop in the Australian context.

The development by courts in other common law jurisdictions of a common law claim for invasion of privacy was considered useful in forming the development of this area of law in Australia by Gummow and Hayne JJ, (and thus Gaudron J) at paras 112-119 and Callinan J at para 325-327.

In particular each of those Justices referred to the judgment of the English Court of Appeal in Douglas v Hello! Ltd (2001) QB 967 in which each of the three Justices of Appeal strongly suggested that in England the right of an individual person to privacy was a right protected by the civil law.

The Court made clear that the time was now right for consideration as to how and to what extent privacy should be protected at common law in Australia. See the judgments of the Gleeson CJ at para 40 (“the law should be more astute than in the past to identify and protect interests of a kind which fall within the concept of privacy”), of Gummow and Hayne JJ (and Gaudron J) at para 132, and of Callinan J at para 335.

At para 332 Callinan J said “…principles for an Australian tort of privacy…need to be worked out on a case by case basis in a distinctly Australian context.” See also Gummow and Hayne JJ at para 124.

Finally, some members of the Court elucidated certain matters that would constitute an unacceptable invasion of privacy, which are useful to mould the formulation of this common law right. For example Gleeson CJ stated it this way:-

“Certain kinds of information about a person, such as information relating to health, personal relationships, or finances, may be easy to identify as private; as may certain kinds of activity, which a reasonable person, applying contemporary standards of morals and behaviour, would understand to be meant to be unobserved. The requirement that disclosure or observation of information or conduct which would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private.” (para 42), (my emphasis).
“However, the foundation of much of what is protected, where rights of privacy, as distinct from rights of property, are acknowledged, is human dignity.” (para 43)
“A film of a man in his underpants in his bedroom would ordinarily have the necessary quality of privacy to warrant the application of the law of breach of confidence. Indeed, the reference to the gratuitously humiliating nature of the film [being considered in Donnelly v Amalgamated Television Services Pty Ltd] (1998) 45 NSWLR 590] ties in with the first of the four categories of privacy adopted in United States law, and the requirement that the intrusion upon seclusion be highly offensive to a reasonable person.” (para 54), (my emphasis)

Gummow and Hayne JJ, (and Gaudron J) at para 125 offered the following useful guidance:-

“The remaining categories, the disclosure of private facts and unreasonable intrusion upon seclusion, perhaps come closest to reflecting a concern for privacy “as a legal principle drawn from the fundamental value of personal autonomy”, the words of Sedley LJ in Douglas v Hello! Ltd”

More than 15 years ago, Young J in Bathurst City Council v Saban (1985) 2 NSWLR 704 at 708 recognised conduct which would apply by analogy to the instant case as being actionable notwithstanding the decision in Victoria Park.

A helpful statement of principle concerning the development of the common law in this area is to be found in the decision of Jeffries J in Tucker v News Media Ownerhsip Ltd, unreported, High Court, Wellington, CP 477/86 20 October 1986 the text of which is reproduced by McGechan J in a subsequent reported decision bearing the same name, [1986] 2 NZLR 716 at 732. Jeffries J had said:-

“In my view the right to privacy in the circumstances before the Court may provide the plaintiff with a valid cause of action in this country. It seems a natural progression of the tort of intentional infliction of emotional distress and in accordance with the renowned ability of the common law to provide a remedy for a wrong.”

The robustness and vigour of the common law to develop to meet changing circumstances and provide a remedy for wrong is usefully traced, in respect of other aspects of the common law, in particular the development generally of the common law torts from trespass into actions in negligence, and the development of the historic common law right of habeas corpus, by Plucknett (A Concise History of the Common Law, Butterworths, 5^th Ed, 1956 pp57-58 (habeas corpus) and 459-462 (development of tort). I refer to my remarks concerning the relationship between a new criminal offence and a civil right of action at para 420.

It is a bold step to take, as it seems, the first step in this country to hold that there can be a civil action for damages based on the actionable right of an individual person to privacy. But I see it as a logical and desirable step. In my view there is such an actionable right.

Mr Curran rightly pointed out the difficulties in taking the step. What are the essential elements of the cause of action? Are there any special defences which should be allowed?

It is not my task nor my intent to state the limits of the cause of action nor any special defences other than is necessary for the purposes of this case. In my view the essential elements would be:

(a) a willed act by the defendant,

(b) which intrudes upon the privacy or seclusion of the plaintiff,

(c) in a manner which would be considered highly offensive to a reasonable person of ordinary sensibilities,

(d) and which causes the plaintiff detriment in the form of mental psychological or emotional harm or distress or which prevents or hinders the plaintiff from doing an act which she is lawfully entitled to do.

Clearly acts of the type specified in s.359B(c) of the Code (see para [418]) would be actionable behaviour. I have found the defendant to have committed many of such acts, beginning in 1994. The suffering of embarrassment, hurt, distress and, a fortiori, PTSD would be actionable detriment as would enforced changes of lifestyle caused by the intrusion. I have found that the plaintiff has suffered such detriment.

It is unnecessary for me in the circumstances of this case to decide whether a defendant would be liable for negligent acts as opposed to willed acts. The conduct of the defendant which I have found to be proved consisted of willed acts.

It seems to me that a defence of public interest should be available (see Lenah at para 34). No such concept was involved in this case. It is unnecessary for me to decide whether a defence of actual intention to protect, or cause a benefit to, the plaintiff should be a defence, as was argued by the defence in this case because I have expressly found that such an intention did not motivate the defendant. In any event, it could lie uneasily with the element set out in para [444(c)] above.

Action for Harassment

All of what I have said in relation to the tort of invasion of privacy applies, I consider, if the breach amounts to harassment (or stalking) as it has in this case. Indeed, Gummow and Hayne JJ, (and Gaudron J) without dissent from the any other member of the Court, recognised harassment as a possible developing tort, separate and distinct from invasion of privacy. See para 123.

Gummow and Hayne JJ (and Gaudron JJ) saw as useful the discussion on this separate and discreet cause of action for harassment by Todd in his chapter entitled Protection of Privacy in Torts in the Nineties (1977) 174 at 200-204. Todd himself expressly identifies stalking being “…an especially sinister activity” as conduct that would be caught by this cause of action.

Todd formulated the possible cause of action thus:-

“The courts will require evidence of unwanted harassing and annoying conduct which the defendant knows or ought to know will cause fear or distress to the victim and which is of such degree of seriousness that an ordinary person should not reasonably be expected to endure it.”

In this case the cause of action in invasion of privacy has been presented as a case of stalking, with which I regard harassment as synonymous (para [416]). The essentials suggested by Todd are clearly made out but I see no need to decide whether “harassment” is a separate cause of action. I would prefer to regard it as a case of invasion of privacy which is characterised by protracted and persistent conduct on the part of the defendant. Thus, I would consider it to be merely an aggravated form of invasion of privacy.

Action for Intentional Infliction of Harm

The essence of this tort is the wilful act or statement of a person, calculated to cause physical harm to another and in fact causing physical harm to him or her, Fleming, The Law of Torts, 8^th Ed. LBC, 1992 pp 32-34. The principle was established by Wright J in Wilkinson v. Downton [1897] 2 QB 57. The English Court of Appeal upheld that decision. in Jenvier v Sweeney [1919] 2 KB 316. Both of these were subsequently followed in the High Court in Bunyan v Jordan [1937] 57 CLR 1.

The principle propounded in Wilkinson has been reaffirmed recently not only in the context of invasion of privacy (Lenah at 123 per Gummow and Hayne JJ) but more generally (Carrier v Bonham [2002] 1 Qd R 474 at 480-481 per McMurdo P; at 483 per McPherson JA). In Carrier the court held that “calculated” to cause physical harm meant objectively likely to cause it. On the facts as I have found them the defendant committed many such acts.

It is accepted that mere distress is not sufficient to make out the cause of action. There has to be damage in the form of an injury to mental health that is capable of causing a recognisable physical condition, or to put it another way, a psychiatric illness. See generally Fleming, op cit at p34; Balkin and Davis, Law of Torts, 2^nd Ed, Butterworths, 1996 p50.

The PTSD the plaintiff now suffers from represents such physical harm.

Action for Negligent Infliction of Harm

This is matter for the application of first principles of the law of negligence. The law of negligence fixes a defendant with a duty requiring him to conform to certain standards of conduct, recognised by the law, for the purpose of protection of others against unreasonable risks, the duty of care.

Mr Dunning submitted that there could no serious argument that the law would not recognise a duty to conduct oneself in a way that is not highly offensive to privacy and solitude of reasonable people. He referred to Fleming, op cit pp 102-103; Balkin and Davis, op cit p198. He submitted that once it is accepted that such a duty exists again there can be no argument that a foreseeable consequence of a breach of that duty would be an infliction of physical (psychiatric) harm, certainly if the breach is on the scale that it is here.

I have expressly left undecided the effect of negligent acts of such a type (para [446]). The facts of this case do not call for a decision on this alleged curse of action.

Action for Trespass

“The tort of trespass is committed whenever there is interference with possession of land without lawful authority, relevantly, the license or consent of the person in possession.” (TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 [23] per Spigelman CJ (Mason P and Grove J agreeing).

It is not in issue that the plaintiff was in possession of all of the properties in question. She was the owner or part owner of all except the property at 69 Point Cartwright Drive. However, even in respect of that property, she was there caring for her recuperating mother, so she plainly was in possession and in a position to determine who might be allowed or refused entry to the property.

“Every unauthorised entry upon private property is a trespass, the right of a person in possession or entitled to possession of premises to exclude others from those premises being a fundamental common law right.” (Coco v The Queen, (1994) 179 CLR 427 at 435 per Mason CJ, Brennan, Gaudron and McHugh JJ)

On the facts I have found, since 8 April 1996 the defendant trespassed on the plaintiff’s land on thirteen occasions. See paras [234], [238], [240], [246], [249], [251], [259], [271], [285], [287], [296], [300] and [316]. These were occasions on which, on the balance of probabilities I find that he actually entered on the plaintiff’s premises without her authority or the authority of any person legally able to give it.

Action for nuisance

Relevantly for the purposes of this case the essence of the cause of action for nuisance is unlawful interference with the enjoyment of the plaintiff’s land, that is, where her various residences have been situate. See generally Balkin and Davis, op cit at pp 449-450.

What has occurred on the various properties of the plaintiff is properly characterised as “inconvenience materially interfering with the ordinary comfort physically of human existence…according to plain and sober and simple notions among English people.” (Walter v Selfe (1851) 4 DE G & Sm 315 at 322; 64 ER 849 at 852 per Knight-Bruce V-C; adopted in Painter v Reed [1930] SASR 295 at 301-2 per Richards J; Don Brass Foundary Pty Ltd v Stead (1948) 48 SR (NSW) 482 at 486 per Jordan CJ; Munro v Southern Dairies Ltd [1955] VLR 332 at 335 per Scholl J.

The occasions set out in para [462] above are instances of this type of conduct, to which can be added paras [207], [214], [232], [242], [254], [257], [275], [298], [309] and [329] where the evidence does not establish actual entry on the plaintiff’s premises but conduct of the defendant elsewhere which affected her enjoyment of her premises.

Action for battery

Battery is any act of a defendant which directly, either intentionally or negligently causes some physical contact with the plaintiff without the plaintiff’s consent. (Balkin and Davis, op cit p 35.

Administering an unwanted kiss is a recognised actionable battery. (Hughes v Callaghan [1932] GLR 330; Todd, Protection of Privacy, 196).

This action was probably made out but in the overall event it is a matter of de minimus. Any damages to be awarded would be nominal. Unless there is some particular reason for awarding them (and I was referred to none) I see no point in it.

Action for Assault

Assault is substantially the same conduct as battery except that it is the apprehension of contact, rather than contact itself which has to be established. Balkin and Davis, op cit p 45).

I am not prepared to find that the plaintiff ever apprehended contact with her on the occasions when others (for example Mr Jones, Mr Clatworthy and Mr Lewis) were assaulted. She did not give evidence of any such apprehension. The cause of action is not made out.

Compensatory Damages for Breach of Right to Privacy

The most serious aspect of the plaintiff’s detriment is the PTSD which the evidence has established. It has very seriously and adversely affected her enjoyment of life and ability to function as she once did, as I have set out in paras [373]-[385]. It has also reduced her capacity to function in her elected position. While the vagaries of political life are notorious and make it impossible to place much weight on it, I have no doubt that the PTSD will have some adverse influence on her desire and ability to stand for re-election as Mayor (or even councillor) and her likelihood of success. Whatever other career might attract her will to some considerable extent be adversely affected for some time to come, perhaps a long time, so in assessing compensatory damages I make a conservative allowance for future economic loss ($10,000). By way of analogy damages for economic loss can form part of an award for defamation, a very similar type of action to this. See Halsbury’s Laws of Australia, para [145-2700]. I also take into account the likely cost of treatment and medication in the sum of $3,000 (para [354]). See Halsbury, ibid.

Damages in this case are assessable for the PTSD which I have found to have been sustained on 8 April 2000 and therefore unaffected by the Limitation Act. This aspect of assessment is no different from what frequently arises in actions for damages for personal injury. I consider that the prospects are reasonable for the resolution of the PTSD at the end of treatment for, say, another two years, but of course that cannot be guaranteed and the condition may linger. See paras [354] and [358]. But she has suffered this very unpleasant illness now for over three years and in total will probably suffer it for up to five years and perhaps longer.

However, compensatory damages here contain another component, that is, a sum to compensate the plaintiff for the “non PTSD’ suffering. That comprises the range of unpleasant emotions such as upset, worry, anger, embarrassment and annoyance to which I refer to in paras [396] and [397], limited to the period commencing 8 April 1996. These emotions were and are experienced regularly and frequently. Their main period of importance was, I consider, between April 1996 and the onset of the PTSD, which I have set at 8 April 2000. Since then I consider they have been largely subsumed within the PTSD. On the resolution of the PTSD I consider it likely that these experiences will be but a memory, albeit an unpleasant memory, of events extending over seven long years between 1996 and now. That memory is likely to linger and that will be unpleasant.

Compensatory damages do not simply rest with these two components. As in actions for damages for trespass damages for breach of the right to privacy must contain a component for vindicating that right. See TCN Channel Nine, op cit at para 178 where Spigelman CJ accepted that this can be a substantial sum. Similar considerations apply in actions for defamation when compensatory damages are awarded for injured feelings to console the plaintiff and to vindicate her. See Halsbury’s Laws of Australia, para [145-2655]

I assess compensatory damages at $108,000 made up of $50,000 for the PTSD (the component to date being $30,000), $10,000 for future economic loss, $3,000 for the likely future cost of treatment, $20,000 for the non PTSD wounded feelings (the component to date being $15,000) and $25,000 by way of vindicatory damages (the component to date being $20,000, divided into $15,000 for the PTSD and $5,000 for the wounded feelings).

Aggravated Compensatory Damages for Breach of Right to Privacy

This is an appropriate case for aggravated compensatory damages. The remarks of Spigelman CJ in TCN Channel Nine, op cit at para 179 relate to an action for trespass but are appropriate for consideration here – He said that aggravated damages recognise that:-

“the hurt to the feelings, humiliation and affront to dignity experienced by the respondent was aggravated by the way the appellant acted in the course of its trespass”.

Over the relevant seven year period since 8 April 1996 (in this connection no distinction is drawn between the PTSD and the general affront) the defendant, at best, ignored the hurt to the plaintiff’s dignity and at worst, belittled it. His acts were persistent, frequent, regular and often carried out in the presence of others. It has involved allegations of the most hurtful kind which have no doubt spread rumours or at least helped to maintain their currency.

Of particular note is the fact that the defendant’s pleadings maintained, and still maintain, allegations that the plaintiff was immoral in relation to sexual acts she is said to have committed as early as 1994 and in her maintenance of a series of wanton sexual liaisons since. Although his counsel did not pursue that latter aspect other than very cursorily, that did not prevent the defendant himself, in the witness box, from doing so. An example is given in para [174E]. At another point he gratuitously introduced an allegation of a scandalous sexual act between the plaintiff and a well-known politician. All of that was done in the presence of large numbers of the public and the press and received wide publicity. The plaintiff must surely have been deeply offended by it and of course some of the mud will stick.

This aspect of the defence raises by analogy, in actions for defamation, the aggravating nature of the maintenance of an unestablished plea of justification or unsuccessful attacks on the character or credit of the plaintiff. See Halsbury, op cit, para [145-2755].

I take the view that the circumstances demand a very substantial award of aggravated compensatory damages. I assess them at $50,000 with a component to date of $30,000 which is divided between the PTSD component ($20,000) and the non PTSD component $10,000).

Exemplary Damages for Breach of Right to Privacy

Exemplary damages are awarded for “conscious wrongdoing in contumelious disregard of another’s rights” (Whitfield v De Lauret & Co Ltd (1920) 29 CLR 71 at 77). Other expressions used have included “high-handed, insolent, vindictive, or malicious” conduct (Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 129, per Taylor J). They are punitive in nature and include the notion of marking the condemnation of the court for the defendant’s conduct (see XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 at 471, per Brennan J). As a general rule it is available in those torts in which intention is an element (for example, trespass to the person or to land). See Balkin & Davis, op cit, (2^nd ed) 778.

In my view the nature of the defendant’s conduct, restricted to the period after 8 April 2000, attracts a substantial punitive, or exemplary sanction in this form of damages, and I assess them at $20,000.

Total Damages for Breach of Right to Privacy

Thus the plaintiff’s damages under this head are:

(a) Compensatory damages $108,000

(b) Aggravated compensatory damages $ 50,000

(c) Exemplary damages $ 20,000

$178,000

Interest on damages will not run on the components for future economic loss ($10,000), future costs ($3,000) or exemplary damages ($20,000). I consider that the rate should be 2%, by analogy with the accepted rate for damages for past pain and suffering in personal injuries cases. So interest will run on the components which represent damage suffered to date.

(a) on $30,000 at 2% from 8 April 1996 to 8 April 2000;

(b) on $95,000 at 2% from 8 April 2000

Damages for Intentional Infliction of harm

The damages (for the PTSD) are again assessed at $50,000 with again $30,000 as the component to date. Vindicatory damages, aggravated damages, and exemplary damages are also called for but should be assessed at lower figures than in the action for breach of privacy because that action includes greater detriment. I assess $15,000 for vindicatory damages, ($10,000 to date) $25,000 for aggravated damages,($15,000 to date) and $10,000 for exemplary damages. Of course all these sums partly duplicate the damages already assessed for breach of the right to privacy. Interest at 2% would run on $55,000 from 8 April 2000.

Damages for Trespass

The proper approach to the assessment of damages in trespass actions was comprehensively considered by the New South Wales Court of Appeal in TCN Channel Nine, op cit Spigelman CJ, who delivered the reasons of the Court, after considering the authorities on this area of the law, adopted the test for recoverable damages for trespass as being that damage which is the natural and probable consequence of the trespass. Reasonable foreseeability is not a part of the test (at para 100; see generally paras 85-155).

Moreover, the court made clear that is was undesirable to limit or attempt to state the kinds of damages that may be recoverable for trespass and explicitly left open the possibility that psychiatric harm might in certain circumstances be a natural and probable consequence of the trespass. The court, in terms, identified trespassing by a stalker as being trespass of a kind that could give rise to psychiatric harm (at para 106).

General damages for trespass are for the purpose of vindicating the plaintiff’s right to exclusive possession. This is a matter of importance and justifies a substantial award (TCN Channel Nine at para 178). Intrusion into a residence is a matter that justifies the awarding of exemplary damages, ibid at para [186].

There is no evidence of any real damage (in dollar terms) other than emotional upset and annoyance to the plaintiff. In my view compensatory damages for trespass should be assessed at $25,000 ($20,000 to date). This includes vindicatory damages. However, the persistent, offensive and defiant nature of the trespass calls for a substantial increase in that award by a further sum of $25,000 for aggravated damages ($20,000 to date) making a total of $50,000. Again, this is a duplication of part of the award for breach of the right to privacy. Interest would again be allowable at 2% on $40,000 from 8 April 1996.

Damages for Nuisances

This cause of action is made out and the damage is of greater moment than for the trespass because it includes the trespass. I assess compensatory damages at $30,000 ($20,000 to date), this sum to include vindicatory damages and aggravated damages at $30,000 ($20,000 to date), a total of $60,000. Again it is duplication of the larger award. Interest would run on $40,000 at 2% from 8 April 1996.

Injunction

The plaintiff seeks to enjoin the defendant from personally dealing with the plaintiff from visiting her or entering on any dwelling at which she resides. The short answer to this request is that there is no evidence that he is now, or in the future, likely to do that. Indeed on the evidence he has had no real contact with her, other than in relation to these proceedings, since the action began. There is no basis for the making of an injunction. However, given the history of his conduct towards her I will give the plaintiff liberty to apply.

Conclusion

There will be judgment for the plaintiff for $178,000 with interest as set out in para [484]. I grant liberty to the plaintiff to apply for injunctive relief.

CITATION:	Grosse v Purvis [2003] QDC 151
PARTIES:	ALISON ROBYN GROSSE Plaintiff and ROBERT JAMES PURVIS Defendant
FILE NO:	D110 of 2002
DIVISION:	District Court
PROCEEDING:	Trial
ORIGINATING COURT:	Maroochydore
DELIVERED ON:	16 June 2003
DELIVERED AT:	Brisbane
HEARING DATES:	3-7; 10-12; 18 February; 31 March; 3 April; final written submissions 16 April 2003
JUDGE:	Senior Judge Skoien
ORDER:	Judgment for Plaintiff for $178,000 with interest
CATCHWORDS:	Action for damages for breach of right to privacy, quantum of damages
COUNSEL:	Mr P Dunning for the plaintiff Mr J Curran for the defendant
SOLICITORS:	Klooger Phillips Scott for the plaintiff Richard O’Bryen Solicitors for the defendant

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