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Jane Doe v Fairfax Media Publications

Jane Doe v Fairfax Media Publications

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Case Copied 21 December 2018 83 min read

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Supreme Court

New South Wales

Medium Neutral Citation: Jane Doe v Fairfax Media Publications Pty Limited & Anor [2018] NSWSC 1996
Hearing dates: 26 February - 1 March 2018
Decision date: 21 December 2018
Jurisdiction: Common Law
Before: Fullerton J
Decision:
1. Verdict for the defendants.
2. The plaintiff is to pay the defendants’ costs.

Catchwords:
STATUTORY INTERPRETATION - Crimes Act 1900 (NSW) s 578A - meaning of the word “likely” - “real and not remote” chance, or more probable than not.

STATUTORY INTERPRETATION - Crimes Act 1900 (NSW) s 578A - whether mens rea required or whether offence is an offence of strict liability

STATUTORY INTERPRETATION - Crimes Act 1900 (NSW) s 578A - whether breach of s 578A confers a cause of action for damages for breach of statutory duty - constituent elements of an action for damages for breach of statutory duty - legislative intention to confer private right to sue for damages
EQUITY - claim for equitable compensation for breach of confidence - identification of the confidential information - whether the information had the necessary “quality of confidence” - whether the information was imparted in circumstances importing an obligation of confidence.
Legislation Cited: Casino Control Act 1922 (NSW)
Children (Care and Protection) Act 1987 (NSW)
Children (Criminal Proceedings) Act 1987 (NSW)
Children and Young Persons (Care and Protection) Act 1998 (NSW)
Children and Young Persons Act 1989 (Vic)
Children's Court of Western Australia Act 1988 (WA)
Civil Liability Act 2002 (NSW)
Corporations Act 1989 (Cth)
Crimes (Personal and Family Violence) Amendment Bill 1987 (NSW)
Crimes (Serious Sex Offenders) Act 2006 (NSW)
Crimes Act 1900 (NSW)
Criminal Code Act 1924 (Tas)
Criminal Procedure Act 1986 (NSW)
Dangerous Goods Regulation 1978 (NSW)
Evidence Act 1929 (SA)
Evidence Act 1995 (NSW)
Industrial Relations Act 1988 (Cth)
Judicial Proceedings Reports Act 1958 (Vic)
Liquor Act 1912 (Qld)
Overhead Line Construction Maintenance Regulations 1962 (NSW)
Scaffolding and Lifts Act 1912 (NSW)
Serious Sex Offenders Monitoring Act 2005 (Vic)
Strata Titles Act 1973 (NSW)
Taxation Administration Act 1963 (Cth)
Wrongs Act 1958 (Vic)
Cases Cited: Alan Belford Jones; Harbour Radio Pty Ltd; Nationwide News Pty Ltd v R [2008] NSWDC 8
Alcoa of Australia Ltd v Apache Energy Ltd [2012] WASC 209
Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd [2012] NSWCA 430; (2012) 295 ALR 348
Attorney General (NSW) v Winters [2007] NSWSC 1071
Attorney General v Greater Manchester Newspapers (Unreported, England & Wales High Court, Queen’s Bench Division, Dame Elizabeth Butler-Sloss P, 4 December 2001)
Attorney-General for the State of New South Wales v Winters [2007] NSWSC 1071
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63
Australian Securities Commission v Nomura International PLC (1998) 89 FCR 301
Bailey v Hinch [1989] VR 78
Boughey v R (1986) 161 CLR 10; [1986] HCA 29
Briffett v Crown Prosecution Service [2001] EWHC Admin 841; [2002] EMLR 12
Byrne v Australian Airlines Ltd (1995) 185 CLR…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NSWSC 1996
Decision Date: 21 December 2018

CaseChat Overview and Summary

Jane Doe brought an action against Fairfax Media Publications, contending that the publication of her personal information constituted a breach of the statutory duty imposed by section 578A of the Crimes Act 1900 (NSW) and an equitable obligation of confidence. The case was heard and determined by the Supreme Court of New South Wales. The primary focus of the litigation was on the interpretation of the statutory provision, whether it required proof of mens rea, and whether a breach conferred a cause of action for damages. Additionally, the court had to examine the equitable claim, including the identification of confidential information and whether it was imparted in circumstances that imposed an obligation of confidence.

The court's primary task was to interpret the phrase "likely" within section 578A of the Crimes Act 1900 (NSW) and to determine whether the offence required proof of mens rea or was one of strict liability. Furthermore, the court needed to ascertain whether a breach of the section conferred a cause of action for damages for breach of statutory duty and what elements were necessary for such an action. In the context of the equitable claim, the court had to identify the confidential information, assess if it had the necessary quality of confidence, and determine whether it was imparted under circumstances that imposed an obligation of confidence.

The Supreme Court held that the term "likely" in section 578A of the Crimes Act 1900 (NSW) required a "real and not remote" chance, or a probability greater than fifty per cent, rather than merely a possibility. The court found that the offence under section 578A did not require proof of mens rea, making it an offence of strict liability. The court also concluded that a breach of the section did not confer a cause of action for damages for breach of statutory duty, as there was no clear legislative intention to create such a private right. Regarding the equitable claim, the court determined that the information in question did not possess the necessary quality of confidence and was not imparted in circumstances that imposed an obligation of confidence.

Consequently, the court dismissed both the statutory and equitable claims brought by Jane Doe against Fairfax Media Publications. The decision underscored the importance of statutory interpretation and the distinction between criminal offences and civil actions for breach of statutory duty.

Orders