Owens v Barnett
[2014] VCC 2038
•12 December 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
GENERAL DIVISION
Case No. CI-11-04751
| SUZANN (SUE) JANET OWENS | Plaintiff |
| v | |
| LEONIE BARNETT | Defendant |
---
JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9, 10, 11 and 14 April, 5 and 6 May 2014 | |
DATE OF JUDGMENT: | 12 December 2014 | |
CASE MAY BE CITED AS: | Owens v Barnett | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 2038 | |
REASONS FOR JUDGMENT
---
Subject: BREACH OF CONFIDENCE – DAMAGES
Catchwords: Collection and dissemination of the plaintiff’s confidential information – breach of confidence – intentional infliction of emotional distress – equitable relief – assessment of damages for breach of confidence
Legislation Cited: Limitation of Actions Act 1958; Civil Procedure Act 2010; Supreme Court Act 1958 (now repealed); County Court Act 1958; Bankruptcy Act 1966; Magistrates’ Stalking Intervention Orders Act 2008; Prostitution Control Act 1994; Chancery Amendment Act 1858 (Lord Cairns’ Act)
Cases Cited: Owens v Barnett (Ruling) [2014] VCC 133; Norman South Pty Ltd & Anor v da Silva [2012] VSC 477; Giller v Procopets (2008) 24 VR 1; Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 203; Coco v A N Clark (Engineers) Ltd [1969] RPC 41; Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd [1967] VR 37; Smith Kline & French Laboratories (Aust) Ltd v Dept of Community Services and Health (1990) 22 FCR 73; Prince Jefri Bolkiah v KPMG (a firm) [1999] 2 AC 222; Australian Medic-Care Co Limited v Hamilton Pharmaceutical Pty Ltd (2009) 261 ALR; Wilkinson v Downton [1897] 2 QB 57; Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; Doe v Australian Broadcasting Corporation & Ors [2007] VCC 281
Judgment: Judgment for the plaintiff.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | - |
| For the Defendant | Mr B Ryan | Brett R E Ryan |
HIS HONOUR:
1 By Statement of Claim appended to a Writ issued on 4 October 2011 in this Court, the plaintiff sought damages, including aggravated and exemplary damages, for:
·invasion of privacy
·breach of confidence
·intentional infliction of emotional distress
·harassment
·nuisance
·trespass
·theft; and
·negligence
as a result of alleged conduct of the defendant over the period from 1988 to 2009.
2 By its initial Defence filed 18 January 2012, the defendant essentially denied all the allegations and, in respect of certain causes of action, pleaded that they were statute barred pursuant to the provisions of the Limitations of Actions Act 1958.
3 The plaintiff’s claim centred, inter alia, upon the defendant’s admitted behaviour that, over a period between 2000 and 2009, she trawled through the plaintiff’s rubbish bins on a regular basis and extracted documents including –
“… many other invoices, statements of account et cetera sent to the plaintiff by business and professional people including, inter alia, barristers, landscape gardeners, motor mechanics, dentists, accountants and plastic surgeons.”[1]
[1]See Ruling of His Honour Judge O’Neill Owens v Barnett (Ruling) [2014] VCC 133 at paragraph [20]; defendant’s Defence dated 18 January 2012 and Defence to Further Amended Statement of Claim dated 19 April 2013
4 According to the initial Defence, the trawling through the rubbish was said to be “good common practice” in the investigation of motor insurance claims, an industry in which the defendant had been previously employed. The justification advanced by the defendant for the conduct was in connection to a debt said to be owed by the plaintiff to the defendant’s company for photocopying or printing undertaken by the defendant, as a director of a printing business known as “Action Printing”, for the plaintiff over a period up until 2002. The defendant submitted that she was seeking documentation either to support the debt, or to investigate the ability or willingness of the plaintiff to pay.
5 The plaintiff, for her own part, alleges that the animus directed towards her by the defendant in connection with the conduct was far wider than that advanced by the defendant and was connected with the defendant’s alleged intention to curry favour with the plaintiff’s former husband to the defendant’s emotional and financial advantage and to the financial disadvantage of the plaintiff and her children.
6 In due course, after a miscellany of orders were made by this Court, some by consent, the plaintiff’s pleading was reduced to the Second Further Amended Statement of Claim pursuant to an Order made by his Honour Judge O’Neill on 25 February 2013. The plaintiff’s claims therein were reduced to ones for “breach of confidence” and “intentional infliction of emotional distress”, described respectively at paragraphs 4 to 15 and 6 to 20 of his Honour’s Ruling.[2]
[2]Owens v Barnett (Ruling) (supra)
7 By Summons returnable before his Honour Judge O’Neill on 25 February 2013, the defendant sought to have the Statement of Claim struck out with respect to the breach of confidence claim on the basis that the Statement of Claim disclosed “no real prospect of success”.
8 His Honour summarised the allegations concerning “breach of confidence” as follows:
· Between early 1998 and October 2009, the defendant rifled through the plaintiff’s rubbish bins and took away, without permission, various documents including bank records, medical reports, rate notices, Centrelink documents, other general documents including legal documents (“the information”).
· In 2004, the defendant entered the plaintiff’s premises without consent, removed a hard disc drive (“the disc drive”) and downloaded various documents from it, including legal documents (“the disc documents”).
· The information and the disc documents were personal, private or related to the plaintiff’s legal practice.
· The defendant read the information and the disc documents and disclosed the contents to various persons.
· In 2003, the plaintiff delivered documents to the defendant for the purposes of photocopying, which documents were related to her legal practice (“the legal documents”).
· The defendant read the legal documents and provided copies to another person.
· The reading, and the provision to other persons of:
§ the information;
§ the disc documents;
§ the legal documents;
constituted a breach of confidence, as a result of which the plaintiff has suffered injury, and the defeat of a lien held by the plaintiff in respect of a former client’s documents.
9 The plaintiff sought damages for psychological injury, including exemplary damages.
10 His Honour, in dismissing the strikeout application, made the following pertinent findings:
“On the face of it, the documents alleged by the plaintiff to have been obtained by the defendant in the course of trawling through rubbish bins included documents which, on any view, would be seen as private. In particular, they include medical information, bank records and legal documents. … .”[3]
[3]Owens v Barnett (Ruling) (supra) at paragraph [20]
And, further:
“I am satisfied that, at least upon the plaintiff’s pleading, many of the documents obtained by the defendant were indeed private, and thus confidential and in that sense sufficient to sustain a cause of action for breach of confidence.”[4]
[4]Owens v Barnett (Ruling) (supra) at paragraph [22]
11 Relief available in equity was not only by way of injunction but also for equitable damages in a breach of confidence case.[5]
[5]Giller v Procopets (2008) 24 VR 1 at paragraph [399] per Neave JA
12 The ingredients to be proved by the plaintiff for damages for a breach of confidence were recently articulated by Beach J in Norman South Pty Ltd & Anor v da Silva[6] as follows:
“It would be a pointless exercise for a party to come to court and obtain an order protecting confidential information if, in the course of obtaining the order, the information was disclosed in circumstances where it could be re-published. It is for that reason that, in cases of this kind, non-publication orders, in as limited a form as necessary to protect the relevant information or material, are made.”[7]
[6][2012] VSC 477 at paragraph [39]
[7]At paragraph [39]
13 His Honour referred to the elements necessary for an action of breach of confidence as:[8]
“(i) the information in question must be confidential in character: it must have ‘the necessary quality of confidence about it’: Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 203 at 215;
(ii) it must have been imparted in circumstances importing an obligation of confidence: Coco v A N Clark (Engineers) Ltd [1969] RPC 41 at 47; Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd [1967] VR 37 at 40; and
(iii) there must have been an actual or threatened unauthorised use or disclosure of that information: Smith Kline & French Laboratories (Aust) Ltd v Dept of Community Services and Health (1990) 22 FCR 73 at 87 and 111–112; Prince Jefri Bolkiah v KPMG (a firm) [1999] 2 AC 222.”[9]
[8]At paragraph [30]
[9]See Australian Medic-Care Co Limited v Hamilton Pharmaceutical Pty Ltd (2009) 261 ALR, 638-9 [632]. But cf Gurry on Breach of Confidence (2nd Edition) at paragraphs 7.143 – 7.159
14 His Honour Judge O’Neill further stated, at paragraph 27 of his Ruling:
“ As stated, on the face of the pleadings, I have found the documents referred to, at least in large part, are confidential. It is contended by Mr Ryan that there was no imparting of those documents in circumstances where there was an obligation of confidence. I take this to mean that by placing the documents in a rubbish tin, there could be no suggestion they were confidential (setting aside for the moment the hard disc). However, in my view, a person may place confidential documents as waste in the expectation that they will be destroyed or dealt with in some other manner so that they do not become public. Institutions regularly dispose of documents into rubbish disposal facilities without any intention that their confidentiality is waived. On rare occasions, those documents have somehow surfaced (medical records of persons) to the acute embarrassment of the institution and the person whose details have been disclosed. I am of the view that in placing the documents in her rubbish, Ms Owens did not waive confidentiality. In any event, as was said in Lenah:
‘… equity may impose obligations of confidentiality even though there is no imparting of information in circumstances of trust and confidence’.”[10]
[10]Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
15 Following his Honour’s Ruling, the defendant, pursuant to leave granted, filed a Defence to the Second Further Amended Statement of Claim dated 9 April 2013.
16 In essence, the defendant denied any allegations concerning the disc documents or the legal documents referred to above. With respect to the information, the defendant pleaded as follows:
“6. The defendant denies the allegations made in paragraph 4 (a) and 4 (b) of the second further amended statement of claim.
PARTICULARS
a. By 30 September 2002 the plaintiff owed Action Printing a total of $3,159.08 (‘the debt’) for tax invoices rendered for monthly accounts for 30 September 2001, 30 November 2001, 28 February 2002, 26 March 2002 and 30 September 2002.
b. The defendant became concerned that the plaintiff would not pay Action Printing the debt and the defendant actively chased payment of the debt.
c. Between about 1966 and about 1971 the defendant was employed by Club Motor Insurance in various capacities including investigation officer in the claims department dealing primarily with injury claims and during the course of the defendant’s employment it was standard practice to collect the rubbish from the persons making claims in order to assess the bona fides of the claims made.
d. In about late October 2002/early November 2002 the defendant decided to investigate the plaintiff’s conduct respecting [sic] her continued refusal to pay the debt to Action Printing and the defendant commenced collecting the defendant’s rubbish to investigate the ability and the willingness of the plaintiff paying the debt to Action Printing.
e. In the plaintiffs rubbish that the defendant collected the defendant found statements of account that the defendant sent to the plaintiff together with many other invoices, statements of account etc. sent to the plaintiff by others and from these documents the defendant estimated the total indebtedness of the plaintiff at approximately $900,000.00.
f. In about December 2002, after discovering documents in the plaintiff’s rubbish, indicating that a company, Point Corp, was a creditor of the plaintiff for about $2.15 million the defendant became increasingly more anxious about the plaintiff’s ability and willingness to pay Action Printing.
g. The defendant was suspicious of the bona fides of the alleged debt to Point Corp and, after discovering documents in the plaintiff’s rubbish, established that Point Corp … was a fabrication.
h. The plaintiff gave notice of a meeting of the plaintiff’s creditors to be conducted on 27 December 2002 to consider a proposal under the provisions of the Bankruptcy Act 1966 with no notice being given to Action Printing.
i. The defendant attended the plaintiff’s meeting of creditors where the creditors voted down the proposal referred to in paragraph xi.
j. In about early 2003 the plaintiff gave notice of a second creditors meeting which was conducted and was attended, inter alia, by a number of people from ITSA, including Annette Moody.
k. Towards the end of the second meeting of creditors Annette Moody took over the meeting, and told the meeting, inter alia, that the plaintiff, whom did not come to the meeting, appeared to have an intention to enter into a Part X arrangement, but the proposed arrangement appeared irregular and did not to comply with the provisions of the Bankruptcy Act 1966 and required investigation.
I. Annette Moody had the Federal Police investigate the proposed Part X arrangement and the alleged debt to Point Corp.
m. The defendant was contacted by the Federal Police and together with another creditor met the Federal Police, at their request, and provided the Federal Police with documents that the defendant and the other creditor had retrieved from the plaintiff’s rubbish.
n. The Federal Police had many other documents which the defendant sighted and during the course of their investigation the Federal Police told the defendant that they had taken a hard drive from the hard rubbish on the footpath outside … [the plaintiff’s address] and after copying the content of the hard drive had returned it to the location from where they had taken the hard drive.
o. In 2005 whilst Michael Corrigan was pursuing bankruptcy proceedings the plaintiff proposed another composition through David Lofthouse, a Trustee in bankruptcy in which the plaintiff offered to pay creditors 100 cents in the dollar with this offer being made only to creditors nominated by the plaintiff with Action Printing and other creditors excluded.
p. Through the defendant’s continued collection of the plaintiff’s rubbish the defendant discovered the identity of many excluded creditors and the defendant actively sought out proxies who were desirous of defeating the plaintiff’s proposal.
q. The creditors voted down the proposed composition and on 10 May 2005 Federal Magistrate Phipps made a sequestration order against the plaintiff.
r. The plaintiff recommended to her first Trustee in bankruptcy that a proof of debt lodged by Action Printing be rejected.
s. The defendant continued from time to time to collect the plaintiff’s rubbish as the debt to Action Printing remained unpaid.
t. The defendant collected rubbish from 240 litre Council waste bins outside … [the plaintiff’s address] between about late October/early November 2002 and about early 2009 and tapered off collecting the plaintiff’s rubbish from about mid 2008 to about early 2009 as the defendant believed that Action Printing’s debt would be paid.
u. The collection of rubbish by the defendant from the 240 litre Council waste bins outside … [the plaintiff’s address] ceased in early 2009.
v. In early October 2009 the defendant attended outside … [the plaintiff’s address] resulting from a request made of the defendant by Arnold Eaton, a former client of the plaintiff.
w. On the occasion referred to in the preceding paragraph the defendant drove Arnold Eaton to Glenferrie Road, Hawthorn and observed Arnold Eaton inspecting the rubbish outside … [the plaintiff’s address], with no rubbish being taken.
x. The occasion referred to in the preceding paragraph was the last time that the defendant attended outside … [the plaintiff’s address] to inspect or collect the plaintiff’s rubbish.
y. In about mid-2010, at the conclusion of the first bankruptcy of the plaintiff, the first Trustee in bankruptcy admitted Action Printing as a creditor and paid, inter alia, the debt due to Action Printing.
z. At all material times the conduct of the defendant was not intended to harm and/or injure the plaintiff but to investigate the ability and willingness of the plaintiff to pay the Action Printing debt.”
17 By paragraph 11(b) of her Defence, the defendant pleaded:
“The defendant never disseminated any documents that the defendant collected from the plaintiff’s rubbish to any legal practitioner or other person save to the Federal Police who the defendant allowed to take whatever documents they desired to take.”
18 The defendant, however, did not plead that she never disseminated any information from the documents and specifically, pursuant to paragraph 6(p), pleaded:
“Through the defendant’s continued collection of the plaintiff’s rubbish the defendant discovered the identity of many excluded creditors and the defendant actively sought out proxies who were desirous of defeating the plaintiff’s proposal”
and in its terms, raises the inference that information obtained from the rubbish was disseminated to other persons.
Diana Cirona
19 With respect to the dissemination of the information, the plaintiff called to give evidence one Diana Cirona, a Registered Nurse, who was in the employ of her former husband, Dr MacDougall, and who, understandably, did not want to give evidence to this Court because of the highly charged emotional circumstances of the dispute between the parties. Nevertheless, when a Warrant was finally issued directing the New South Wales Police to convey her to Court, she came voluntarily and gave her evidence in what I consider to be a forthright and honest manner.
20 Ms Cirona attested that she had known the defendant and Dr MacDougall (the former husband of the plaintiff) for a number of years. Dr MacDougall had been her family general practitioner and, later, she had worked for him as a Registered Nurse. The defendant and her son had also been a patient of Dr MacDougall. However, in time, the defendant and Dr MacDougall’s relationship changed such that Ms Cirona noticed that the defendant would stay overnight at the general practice, which was also the residence of Dr MacDougall. She also stated that the defendant and Dr MacDougall would go away together for extended periods. Also, the defendant was present throughout the day performing administrative work but ostensibly without pay. Ms Cirona heard the defendant tell Dr MacDougall that the plaintiff was involved in drug smuggling, as was his daughter. She also advised the doctor that the daughter was involved in running a brothel.
21 Ms Cirona witnessed the defendant bring rubbish bags to the practice and place them on the table in the lounge room. The defendant admitted to her that the documents were taken from the plaintiff’s rubbish and the defendant and Dr MacDougall would go through the documents, sorting them out, and trying to piece them together like a “jigsaw puzzle”. In particular, Ms Cirona remembered the defendant removing a yellow envelope and stating that she was going to send it off “to the courts”.
22 Ms Cirona also stated that the defendant admitted taking the computer hard drive from the nature strip with the words, “I’ve got the hard drive off the nature strip”. Ms Cirona also attested to the defendant telling Dr MacDougall that the plaintiff’s children were not his children and they should be DNA tested.
23 In time, Ms Cirona formed the view that the doctor’s mental faculties were waning and she applied for guardianship of his affairs at VCAT. It was her perception at the time that the defendant was “not good for him”, particularly with respect to the stories that she had made up about the plaintiff. It was Ms Cirona’s opinion that the doctor was becoming paranoid in everything. Over a number of years, she heard the defendant allege the plaintiff was involved in criminal activity including brothels. The daughters were also involved and there were connections with the mafia. This happened over a period of time over a number of years up until 2010 when she left the employ.
24 Under cross-examination, she stated that the practice was a very busy surgery but she and the defendant, and Dr MacDougall, would often have lunch and morning tea together and, often, after the surgery closed, there would be a number of conversations.
25 It was put to her that the defendant had never been a patient of the practice, to which she replied that she could remember taking her card out of the filing cabinet and taking it to the doctor. As to her qualifications, she stated that she had also trained in mental health and had certificates to that effect. However, she conceded that her view of Dr MacDougall becoming paranoid was more a lay person’s interpretation.
26 As to whether the defendant and Dr MacDougall had an intimate relationship, she stated that she “saw them kissing once” and heard Dr MacDougall make a comment to the effect that the defendant was “not a bad sort”. They went away together on a number of occasions and were clearly close friends.
27 Ms Cirona stated that the defendant stayed at the Tooronga Road surgery overnight and there was only one double bed on the premises. She confirmed that she heard the defendant say “I’ve taken the hard drive off the nature strip”. She was unable to say exactly when that had occurred.
The Plaintiff’s evidence
28 The plaintiff was married to Dr MacDougall in 1980 and they separated in 1994. There were two children of the marriage born in 1982 and 1984.
29 The plaintiff believed that her husband was exhibiting signs of delusional behaviour at the time of the separation. He accused the plaintiff of being a lesbian and suggested that she had a brain tumour and needed psychiatric help. He threatened to certify her. She asked him to leave, which he did. She was undergoing no treatment at that time. Her former husband, on the other hand, was undergoing psychiatric treatment at the time under the care of a Dr Orchard and a Dr Millington. Although she purported to have no contact with him between 1994 and 2005, she learned from her two children that her former husband had made “bizarre” comments about her, such as that she was a drug dealer.
30 During bankruptcy proceedings against her in 2005 in the Federal Court, she noticed her personal documents appearing which had only been in her personal possession. Examples were medical certificates, rates notices, emails and letters. She reasoned that someone had been taking these documents.
31 Her trustee and bankruptcy interviewed her and asked her if she owned brothels. One of the plaintiff’s daughters had applied for a job as a receptionist for work experience in a brothel. The paperwork concerning the daughter’s application had been in the plaintiff’s possession and she considered at that stage that the documents had been passed on to third parties.
32 The defendant appeared at all her bankruptcy proceedings with a former client of hers, Mr Brian Purton-Smith.
33 It was only in early 2010 that the plaintiff knew the defendant had been taking documents from her rubbish, as this fact was communicated to her by Ms Cirona.
34 The plaintiff had been diagnosed with cancer in 2008 with an uncertain prognosis. Further, she had been diagnosed with a depressive illness in 1999 and had been on medication on account thereof on and off since then. Her treating general practitioner was Dr Jones and he prescribed Cetelophran.
35 On 14 February 2011, the plaintiff applied for an injunction against the defendant under the Magistrates’ Stalking Intervention Orders Act 2008 (exhibit E). The grounds for the application were set out as follows:
“I HAVE KNOWN THE RESPONDENT FOR APPROXIMATELY 5 YEARS. SHE IS THE CURRENT GIRLFRIEND OF MY EX-HUSBAND. I BELIEVE THAT THE RESPONDENT IS HARASSING ME. THE RESPONDENT OVER A 5 YEAR PERIOD, HAS TAKEN THE CONTENTS OF MY RUBBISH BIN. THAT MY PRIVACY HAS BEEN VIOLATED. I HAVE BEEN SUBJECTED TO THESE DOCUMENTS BEING GIVEN TO OTHER PEOPLE.
THE RESPONDENT HAS BEEN REMOVING THE CONTENTS OF MY RUBBISH BINS SINCE AT LEAST 2002 UNTIL 2010. SHE HAS ALSO TAKEN THE CONTENTS OF RUBBISH BINS FROM OTHERS AS WELL. SHE DRIVES PAST MY HOME REGULARLY TO CHECK THE HOUSE. SHE HAS INFORMED OTHERS THAT I AM A DRUG DEALER AND THAT MY CHILDREN ARE NOT THEIR FATHER (sic), THEY ARE PROSTITUTES AND LIARS. THOSE ALLEGATIONS HAVE BEEN CONTINUING FOR YEARS. SHE HAS REMOVED A HARD DRIVE AND TAKEN THE RECORDS STORED AND GIVEN THEM TO ROSS PLOWMAN AND LAWYERS OVER THE PAST 5 YEARS.”
36 On 15 February 2011, an Intervention Order was made against the defendant apparently to the effect that the defendant must not approach the plaintiff or her place of residence or any other place where the plaintiff lives or works.
37 The defendant appealed the Order to the County Court but subsequently withdrew same and paid the plaintiff’s costs of approximately $8,000.
38 The plaintiff stated that she had been deeply distressed by the defendant’s behaviour towards her and considers that she and the plaintiff’s former husband continue to want to cause her harm. She finds the course of conduct “deeply upsetting”. Further, she stated:
“I will never know who the defendant contacted concerning the material in the rubbish bins. She has been making untrue allegations about me.”
39 At some time prior to 2005, her computer hard drive had been deposited by her daughter at the end of her residential driveway. It was left near the rubbish bins. The plaintiff’s residence has no nature strip but the road bitumen is wide enough for a rubbish bin to be placed on the road. Ms Cirona had told her that the defendant had admitted taking the hard drive.
40 Under cross-examination, the plaintiff admitted that a number of invoices had been sent by the defendant’s printing company concerning purported demands for a debt (exhibits 5-13 inclusive). The plaintiff admitted that she was suffering from severe anxiety and depression from February 2008.
41 The plaintiff admitted that her daughter had obtained a certificate of approval under the Prostitution Control Act 1994 to perform work experience in an approved institution (exhibit 18).
42 In June or July of 2005, the plaintiff was cross-examined by barrister, Mr Lapirow, in the Federal Magistrates’ Court concerning her financial affairs. Mr Lapirow produced documents consisting of medical certificates, facsimiles, a number of letters, credit card details, rate notices, medical reports, an application for Centrelink, emails emanating from her legal practice concerning her income, and documents from the trustee in bankruptcy concerning her daughter working in a brothel. All these documents had been in the plaintiff’s personal possession and she believed that they had been taken from her rubbish bin and forwarded to Mr Lapirow.
43 The plaintiff subsequently made a statement to the police concerning the matter. In that statement dated 21 July 2005, the plaintiff alleged the documents had been stolen but she now believed that she had thrown them out in her rubbish.
Lawrence John Robertson
44 Mr Robertson gave evidence that he was presently retired but had previously practised as a financial planner when he gave advice to Dr MacDougall in or about February 2008. Both Dr MacDougall and the defendant attended his office on ten occasions and once in hospital at Dr MacDougall’s bedside. Apart from discussing financial matters at the conferences, both Dr MacDougall and the defendant made statements about the plaintiff to the following effect:
· The plaintiff was an ex-lawyer and extremely litigious.
· The plaintiff had already received greater than her fair share.
· The plaintiff was a drug dealer and had dealt with “white powder in plastic bags”.
· The plaintiff acted with a “tag team” of lawyers at the local synagogue known as “the gog” with the intention of causing harm to Dr MacDougall and there was a conspiracy of “Jews”.
· Both Dr MacDougall and the defendant were “highly derogatory” with respect to the plaintiff’s alleged drug dealing.
· The defendant had conducted “research” in the plaintiff’s rubbish, looking for information against the plaintiff which was to be used by the defendant in a number of court cases over many years.
· One purpose of obtaining the information was to “feed information” into the court cases as part of the legal system.
· The Federal Police had been provided with information.
· An ex-Victorian policeman, Mr Rod Couris, now a lawyer, had been provided with information to be used in connection with a VCAT hearing concerning Dr MacDougall.
· Part of the “research” undertaken in 2009 was to support documentary evidence in a court case in progress in VCAT.
· The defendant stated that not only had she taken rubbish but had taken a piece of computer equipment near the front gate, which was either just inside or just outside same. The equipment yielded information which was relevant in the court case.
· The plaintiff would get her “comeuppance” as she was an undesirable person.
· It was likely that the plaintiff would lose her house as a result of her opponent winning the case at VCAT.
· The defendant needed to be in a de facto relationship with Dr MacDougall in order to be the sole beneficiary of the superannuation trust. On one occasion, she said to Mr Robertson “Viagra helps”; and on another, that they were “life partners”.
45 Under cross-examination, Mr Robertson stated that the ten conferences lasted approximately one-and-a-quarter to one-and-a-half hours each. He confirmed that the defendant had alleged the plaintiff was a drug dealer. Also, she admitted that she would “feed documents” for the purposes of court cases, both in the past and intended to in the future. She also stated that she had supplied information concerning the plaintiff to the Federal Police.
46 Mr Robertson found it hard to believe the allegations made against the plaintiff. He did not consider that she could manipulate a large number of lawyers. When asked whether he believed the plaintiff was a drug dealer, he replied “that is what I heard”.
Dr Michael David Jones
47 Dr Jones, the plaintiff’s treating general practitioner for some fifteen to twenty years, gave evidence on behalf of the plaintiff. On a voir dire, he stated that he had been in general practice for some fifty years and stated that he had seen thousands of patients over that time whom he had treated for depression. He was confident that in all those cases, he had made the diagnosis correctly. He opined that there were many causes of depression and his modus operandi was to take a history from a patient and he would make an estimate based on his clinical experience and training as to whether the history was causally related to the depression.
48 In his evidence, Dr Jones stated that the plaintiff’s depression commenced with her being diagnosed with breast cancer in the past. He then tendered into evidence a report he had prepared dated 22 August 2012,[11] which recited:
[11]Exhibit D
“To whom it may concern
Mrs Owens has been put under considerable mental pressure by Ms Leoni[e] Barnett. On top of this severe problem, Ms Owens has been sick with Cancer of the left breast and a depressive illness.
She feels violated and distressed by the invasion of her privacy.
Mrs Barnett’s conduct has significantly contributed to her anxiety and depression.
Should any of the above need clarification, please feel free to contact me … .”
49 Under cross-examination, Dr Jones conceded that there was no mention of the defendant in his clinical notes. He further conceded that the plaintiff had been suffering from a Major Depression for a long time, at least since 1996. There had been a continuation of her symptoms since that time and they had been essentially the same. The plaintiff was suffering from general anxiety, and the contributing factors were “a lot of reasons”.
50 Dr Jones stated that he had referred the plaintiff to a psychiatrist, Dr Chong, in 2008, who had prescribed Cypramil at that time. Further, in 2008, the plaintiff’s psychological problems were contributed to by her children and drugs, and the state of her marriage. She was also stressed by legal problems.
51 Dr Jones had also referred the plaintiff to psychiatrist, Dr Simon Gillian, who had reported back to Dr Jones on 11 December 2008. Dr Jones conceded, at that time, the main stressor in the plaintiff’s life was breast cancer.
52 Dr Jones recalled the plaintiff advising him about documents being taken from her rubbish bin after 2010, but he was not aware of what had caused this behaviour. He could not remember any further details and had no note of any documents from the rubbish bins after 2010.
53 By consent, the defendant tendered the report of Dr Gillian dated 11 December 2008,[12] which was addressed to Dr Jones in the following terms:
[12]Exhibit 20
“Thanks for your referral of Sue Owens who contacted me at the suggestion of Dr Steve Ellen of the Alfred Hospital C-L Psychiatry Service.
Ms Owens is clearly depressed and in a very difficult situation being a deregistered lawyer with considerable financial stress and has reported having a Grade 3 Breast Cancer, a lumpectomy in August and recently withdrew from chemotherapy. I note your letter made no mention of the cancer.
She attended wearing a head scarf, she was downcast, spoke with normal rate and volume of speech but with a diminished tonal range. Her affect was depressed with decreased reactivity. Her thoughts were ordered and she spoke of hopelessness but with no suicidal ideas. She has poor appetite and sleep and little enjoyment and limited motivation in life. She is continuing to strive for a settlement of longstanding legal disputes.
I have continued the Cypramil that was increased to 80mg when she was in the Alfred and I will see her for supportive therapy on a fortnightly basis.
Thanks again for the referral, however, I should add that much of my work is with adolescents and children but occasionally take on some adults when time permits.”
54 Defence counsel then tendered two reports from psychiatrist, Dr Terry Chong, dated 27 June 2008 and 5 August 2008.[13] The two reports are essentially identical except the second report contains a slightly more fulsome opinion. This report recites:
[13]Exhibit 21
“Diagnosis: Major Depression, chronic.
Many thanks for referring Ms Suzann Owens. I saw her at the Alfred Private Consulting Suite on 11/6/2008.
History:
Ms Owens is aged 61, divorced, lives with her 2 daughters, aged 25 and 23. She is a lawyer but currently not practicing.
Ms Owens suffered a depressive breakdown, treated with antidepressants in 1999. This was associated with a marriage breakdown (1994), court dispute (1994-99) and a family problem (a daughter with heroin abuse). In 2003 she was charged for theft of a client’s money (acquitted in 2007) and it was publicized in the newspaper. The impact of this was devastating. Her depression got worse. She was made bankrupt in 2005 and could not practise.
Currently, Ms Owens complained of ongoing depressed mood, reduced interest/enjoyment of activities, tiredness, a sense of failure/ worthlessness, social withdrawal/reclusion, anxiety, worrying, anger and impaired sleep. She had ongoing legal/financial problems. She was attempting to rescind her bankruptcy. She had treatment with Citalopram (20 mg) 4 capsules a day.
Background:
There was no family history of psychiatric illness. Ms Owens had a difficult childhood. Her parents separated when she was young. She went to boarding school (age 6-13). She felt emotionally deprived and alone. She did well in school and university and became a lawyer. Her age (from age 23-47) was satisfactory until her husband developed paranoia (later in the marriage). She described herself as a very resilient person.
O/E Ms Owens was cooperative. She was anxious and worried. Her mood was depressed. She was not suicidal. She was not psychotic. She asked for treatment. She did not want to change her antidepressants.
Opinion:
Diagnosis: Chronic depression associated with multiple psychosocial problems.
Treatment Plan: Ms Owens wished to stay on her current regime of medications, which she said was beneficial. I suggested additional psychological counselling (for her many psychosocial problems) and a program of activities and exercises. I have perused your treatment plan and I believe it is reasonable.
I reviewed Ms Owens on 16/7/08. Her condition was the same with ongoing stressors in her life e.g. ongoing litigation and financial difficulties.
Ms Owens came on 30/7/08. She was not happy that she had to wait 2 hours on this day. I had a discussion with her and we finally agreed to have her referred to Dr Steven Ellen in Alfred Psychiatry Clinic.”
55 In re-examination, Dr Jones agreed that he had a recollection of complaints being made by the plaintiff to him of harassing conduct by the defendant. He said the depression was multi-factorial but the harassment would “augment it”.
The Defendant’s opening
56 Counsel for the defendant outlined the following elements of the Defence:
(i) the defendant sporadically, between 2002 and late 2009, inspected documents “in situ” and took notes of same “in situ”;
(ii) the information was gathered for the defendant’s own purposes with respect to an outstanding debt to her printing firm;
(iii) it was during the inspections that the defendant discovered “ancillary matters” regarding the debt, including the plaintiff’s indebtedness to other parties;
(iv) the defendant never disseminated items collected to anyone;
(v) the activity of inspection stopped when Action Printing was paid in the bankruptcy in late 2009;
(vi) the defendant did not take the hard drive from the plaintiff’s property in 2002 or at all;
(vii) the defendant had not downloaded any material from the hard drive;
(viii) the Federal Police had taken away the hard drive and returned it to the pavement outside the plaintiff’s residence;
(ix) the defendant had not made any statements to Ms Cirona or Mr Robertson, as alleged by them;
(x) the defendant had not retained any documents which had been copied in her printing business;
(xi) such documents were distributed to no one;
(xii) the defendant was not a patient at any time of Dr MacDougall, only her family members;
(xiii) the defendant had never had an intimate relationship with Dr MacDougall but was a close friend;
(xiv) the defendant had no intention to cause harm or distress to the plaintiff. She only wished to obtain information;
(xv) the defendant denied any measure of injury or distress to the plaintiff on account of accessing her rubbish.
The Defendant’s evidence
57 The defendant gave evidence that she was a retired company director and had carried on the firm of Action Printing with her husband for some forty-one years. The couple had three children aged forty-two, thirty-seven and thirty.
58 The defendant stated that she really did not know the plaintiff and it was her husband who mainly dealt with her at the front of office when conducting their printing business.
59 From the years 2001 to the end of 2002, the firm had conducted printing business for the plaintiff but had never been paid until many years later.
60 Ultimately, a proof of debt amounting to $3,159 was admitted into the plaintiff’s bankruptcy (exhibit 2).
61 The defendant accessed the recycle bin of the plaintiff and discovered that “all our invoices were on top”. She also discovered that invoices sent by other creditors had ended up in the rubbish bin as well.
62 The defendant stated that she had heard about another creditor by the name of Point Corporation being owed over $1 million. She asked another creditor if he had any information about this alleged debt. When she looked in the bins she discovered approximately twelve creditors who were owed $3,000 to $5,000 each.
63 The plaintiff stated that she would access the recycling bin on a Thursday night at approximately 10.00pm on the nature strip outside the plaintiff’s residence. She discovered documents including invoices and final notices throughout the contents. She stated that she took her own documents but only took notes of other creditors without taking their documents. She “phoned a few up”.
64 Some of the people contacted were a mechanic from Box Hill, a dentist by the name of Val Mayhouse, and a person to do with the irrigation of a lawn. She wrote down their names.
65 The defendant denied taking any bags of rubbish from the premises and only took away invoices relating to Action Printing which she showed her husband.
66 The activity of accessing the rubbish continued from 2002 until 2009.
67 The defendant knew Ms Cirona, who worked as a receptionist two to three hours per day, approximately three days per week. The defendant denied taking any plastic rubbish bags into the lounge room of the practice and trying to re-assemble documents like a jigsaw.
68 The defendant denied saying to Ms Cirona words to the effect that there was a Jewish conspiracy of lawyers. She also denied making any comments about the plaintiff’s daughters working as prostitutes in a brothel or any other derogatory remarks about the plaintiff.
69 The defendant admitted that she had attended upon Mr Robertson on approximately ten occasions. She stated, “I sat in [on the conferences] and had no input at all”. The conferences took approximately one hour each. She stated that not much was discussed at all; Mr Robertson had already written proposals concerning shares, stocks and advice. Dr MacDougall would often forget the details. Mr Robertson was told that Dr MacDougall was divorced but “that’s it”.
70 The defendant denied that she was in a de facto relationship with Dr MacDougall, she had her printing business approximately three doors away and she would have morning coffee with him on a regular basis and they had a friendship. They were never intimate and she denied kissing Dr MacDougall.
71 Further, the defendant denied any of the statements being made by either her or by Dr MacDougall in her presence, as alleged by Mr Robertson. In particular, she denied making any statement to the effect that “Viagra helps” or that she and Dr MacDougall were “life partners”.
72 Further, at no time had she made any derogatory statements regarding the plaintiff to Mr Robertson and she had never told Ms Cirona that she had taken the hard drive from the plaintiff’s property. She stated, further, that both Ms Cirona and Mr Robertson were “liars”.
73 In conducting a search of the rubbish, the defendant stated that she had no intention to harm the plaintiff. She just wanted to “get paid”.
74 Under cross-examination, the defendant agreed that she had met Dr MacDougall in Sydney at the time of a medical conference but that she had stayed at her brother’s house. She also admitted that she had travelled to New Zealand with him to attend a medical conference in Auckland and that she had gone away with him twice on weekends.
Dr John Robert MacDougall
75 Dr John MacDougall gave evidence that he was the former husband of the plaintiff and had practised as a medical general practitioner for thirty years until 2009. He agreed that he had employed Ms Diana Cirona as a casual part-time receptionist for two to three hours per day, a total of 15 to 20 hours per week. Her hours had increased in the years 2008 and 2009 because there was more to do. He considered she was like a “naughty schoolgirl” because she would not always obey orders.
76 Dr MacDougall considered that Mr Robertson had prepared “ludicrous documents” with respect to his financial advice and planning. Mr Robertson’s advice was to borrow money for shares so that he could make commissions, whilst he was supposed to be earning profits for the client.
77 Dr MacDougall agreed that he met Mr Robertson on approximately nine or ten occasions but he realised, after a time, that he did not need his financial advice. On no occasion was the plaintiff discussed with Mr Robertson.
78 Dr MacDougall agreed that Ms Cirona had cups of tea with him on a few occasions but there were never any big discussions. The defendant was not a patient of his and he disagreed that Ms Cirona produced the defendant’s medical file on one occasion.
79 Dr MacDougall had known the defendant for approximately thirty years in connection with her printing business and a friendship had developed.
80 The defendant would attend his practice each day at the reception and may share a meal with him or a cup of tea. There were no sexual relations. He described the defendant as his best friend who had saved his life and had saved him from financial annihilation. He denied he had ever slept with her or kissed her and he had not told Mr Robertson or Ms Cirona that he was in a de facto relationship with her. The defendant had never said to Mr Robertson words to the effect that “Viagra helps”.
81 He agreed that the defendant was the sole beneficiary of his superannuation deed from about 29 February 2008. However, Mr Robertson was not involved in that arrangement.
82 Dr MacDougall had stopped practising in 2009 as he was under psychiatric care and was taking an anti-depressant, together with lithium carbonate, Xanax and Lovan.
83 The defendant was made his power or attorney alone in about August or September 2008 or 2009. However, she had never acted on it and it has not been revoked. Recently, the power of attorney has been granted to Mr Herbert and Mr Ryan, counsel in the present proceeding.
84 Dr MacDougall denied making any disparaging comments to Ms Cirona concerning the plaintiff. Further, he stated that the only DNA testing with respect to his daughters was at the request of his own father who had his own doubts.
85 Further, he denied all of the allegations by Mr Robertson as to the disparaging remarks made concerning the plaintiff during the ten conferences. Further, he had never seen the defendant put a plastic bag on a table at his practice and attempt to put together bits of documents like a jigsaw.
86 Further, when he met the defendant in Sydney, she was staying with her brother and he was attending a medical conference. He agreed they had travelled together in New Zealand but, as he was exhausted, she did the driving whilst he slept in the car. He was suffering from chronic fatigue. Further, he admitted that they had spent weekends away at Werribee Mansion but he recalls the defendant driving back to be with her grandson.
87 Under cross-examination, he conceded that the marriage with the plaintiff had been unhappy on a number of fronts.
88 Further, he stated that Mr Robertson had persuaded him to purchase $500,000 worth of shares in which he received huge commissions. Mr Robertson sold his CBA bank shares without permission but he did not know how he did it. He had dealt with Mr Robertson on and off for about five years. When Mr Robertson queried the effect of the defendant being the sole beneficiary of his superannuation fund and asked whether their relationship was sexual, he had replied “No. She is married but she is my best friend”. Further, he stated that he had nowhere else to leave the money.
89 He further confirmed that the defendant was still the sole beneficiary of his superannuation fund and also the sole beneficiary under his Will. This had been the situation since 2008 or 2009.
90 Further, he conceded that he saw the defendant each day from approximately 7.00am until 10.00 or 11.00am, except Sundays. They would go shopping on the weekends but she never stayed overnight.
91 In re-examination, he conceded that because of the non-sexual relationship with the defendant, he needed to resolve the question of her being the sole beneficiary of his superannuation fund. However, this provision had not been revoked yet. He stated that he would “attend to it”.
Final addresses
92 Counsel for the defendant submitted that the breach of confidence case must fail on the following bases:
(a) that the plaintiff had failed to prove what documents had been taken and how they were confidential in nature;
(b) there was no evidence of the precise documents taken or that they had been disseminated;
(c) insofar as Mr Robertson alleged that documents had been used in court cases, no such documents have been identified;
(d) whilst the plaintiff alleges that medical certificates, rate notices and brothel documents had been taken, there was no evidence that such documents had in fact been taken, or the contents disseminated and, if so, when;
(e) insofar as there is evidence that plastic bags were taken to the surgery and documents put together like a jigsaw, there is no evidence as to what happened to them thereafter;
(f) the activities with respect to breach of confidence being statute barred greater than six years prior to the issue of the Writ. An exception to this was with respect to psychiatric injury which relates to discoverability in 2010. It was not submitted that this damage was statute barred;
(g) however, there was no evidence that the plaintiff had suffered any psychiatric injury, as attested by her general practitioner, Dr Jones. In particular, her medication had not been increased after matters had been communicated to the plaintiff by Ms Cirona in 2010. Further, Dr Jones could not recall the plaintiff telling him about the rubbish bins and he had no notes to that effect;
(h) the tort of intentionally causing psychiatric injury had not passed the test of Wilkinson v Downton.[14]
[14][1897] 2 QB 57
93 In any event, there was no evidence, or insufficient evidence, that Ms Cirona had communicated to the plaintiff the adverse comments concerning the plaintiff said to be uttered by the defendant in the presence of Ms Cirona.
Submissions by the Plaintiff
94 The plaintiff submitted that the defendant’s actions towards her were malicious and calculated to cause her psychological harm.
95 There was a breach of confidence by taking plastic bags of rubbish and accessing confidential information which had been intended for disposal by the municipal council pursuant to a contract with the council. There had been no waiver of confidentiality to the council or to third persons.
96 The tort was completed by reading the information and disseminating information to putative creditors at the very least.
97 There was also an inference open that the confidential information had been disseminated on a far wider basis than that admitted by the defendant because of the demonstrated malice towards the plaintiff and because of the carrying on of the activity over a number of years.
98 Both the witnesses, Mr Robertson and Ms Cirona, were more likely to be in the camp of the defendant and were otherwise believable and disinterested parties. Accordingly, their evidence should be accepted.
99 The facts established were such that there had been a trespass committed by the defendant with respect to the confidential documents such as to attract the ingredients of the tort as set out by Gleeson CJ in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd.[15]
[15]Supra
Findings: witnesses
(a) Diana Cirona
100 Ms Cirona was a reluctant witness in this proceeding as she had been an erstwhile employee of Dr MacDougall for a number of years until 2009. Ultimately, a warrant was issued to compel her presence before the Court. Nonetheless, when she attended, her evidence was forthright and honest. She was unshaken by cross-examination. I accept her evidence in its totality.
101 In particular, I accept her evidence that the defendant tipped bags of rubbish on a table at Dr MacDougall’s surgery, such rubbish previously left outside the plaintiff’s residence for the purpose of collection by the municipal council. I further accept that the defendant attempted to piece together documents “like a jigsaw puzzle” and that she carried out this activity in concert with Dr MacDougall. I also accept that she admitted to sending some material in a yellow envelope “to the courts” or to some such similar destination. I also accept that the defendant told her “I’ve got the hard drive off the nature strip”. I accept the defendant’s submission that there is no evidence of dissemination of such material. Further, I am unable to say whether the hard drive had been left “as hard rubbish” or not. I find it hard to understand why it would be left at or near the front gate if it were otherwise. In such circumstances, it is difficult to be satisfied that the plaintiff intended such material to remain confidential.
102 In any event, I accept Ms Cirona’s evidence that the defendant stated in her presence that the plaintiff was involved in criminal activity concerning brothels and that her daughters were similarly connected. I also accept her evidence that the defendant stated that the plaintiff was somehow connected with the mafia. Such statements, I accept, were made in the years 2008, 2009, 2010 and made contemporaneously with the activities of sorting through the rubbish and attempting to re-assemble documents.
103 I also accept her evidence that she witnessed the defendant and Dr MacDougall kissing at least once, and that the defendant stayed overnight at the Tooronga Road surgery in circumstances where there was only one double bed on the premises.
(b) Lawrence John Robertson
104 Mr Lawrence Robertson was a financial planner who had contracted with Dr MacDougall to provide financial advice. He consulted with Dr MacDougall in the company of the defendant on at least ten occasions at his office. I find him to be a witness of truth who was not dented by cross-examination. In particular, I accept his evidence that the defendant and Dr MacDougall made comments to him that the plaintiff, as an ex-lawyer, was litigious and had already had “greater than her fair share”. I accept that they accused her of being a drug dealer who placed white powder in plastic bags in the marital home. I accept his evidence that the plaintiff was alleged to be part of a tag team of a conspiracy at the “gog”, the intention of which was to cause harm to Dr MacDougall.
105 Further, I accept his evidence that the defendant admitted that she was conducting “research” in the plaintiff’s rubbish in an attempt to look for information against the plaintiff which would be of assistance in the running of court cases over many years. I also accept his evidence that the defendant admitted that she not only took rubbish but she took a piece of computer equipment near the front gate, either just inside or just outside same, and that she was able to yield information that was relevant. I accept his evidence that the defendant stated that the plaintiff would get her “comeuppance” and that she was an undesirable person.
106 I further accept the defendant, when queried whether there was an intimate relationship between her and Dr MacDougall such that would justify her being the sole beneficiary of his superannuation fund, she replied “Viagra helps”.
(c) Dr Michael Jones
107 Although he expressed an opinion in writing dated 22 August 2012[16] to the effect that the defendant’s conduct had significantly contributed to her anxiety and depression, he had no clinical notes which would support such an opinion. In particular, he had no note of a specific complaint of the defendant accessing the defendant’s rubbish bins. Perhaps, more importantly, it is clear from the reports of the treating psychiatrists in 2008 that the plaintiff was suffering from a chronic depressive illness prior to the communication by Ms Cirona in 2010. There is insufficient evidence thereafter that there was an identifiable worsening of the underlying condition in medical terms. However, I accept his evidence that he has a memory of the plaintiff complaining to him of the “harassing conduct” of the defendant, and I would accept his observation set out in Exhibit D to the effect that the plaintiff “feels violated and distressed by the invasion of her privacy…and that the plaintiff has been put under considerable mental pressure by (the defendant)”.
[16]Exhibit D
The Plaintiff – Suzann (Sue) Owens
108 Having accepted the evidence of the defendant as admitted in the pleadings and the evidence of Ms Cirona and Mr Robertson, I accept that the substance of these activities were communicated to the plaintiff by Ms Cirona some time in late 2009 or 2010. I also accept that knowledge of these activities caused the plaintiff great distress, embarrassment and humiliation. I am unable to find, however, that she suffered a recognisable psychiatric injury on account of the activities either by way of causation or aggravation thereof. I do accept, however, that she was suffering from a psychiatric condition prior to knowledge of these activities, and I have no doubt that the distress caused to her by knowledge of these activities would have made it more difficult for her to cope with her underlying illness.
109 I also accept that the distress caused to her was extenuated by the knowledge that the defendant had formed such a relationship with her former husband, that the defendant was now the sole beneficiary of the superannuation fund from the medical practice and also the sole beneficiary of Dr MacDougall’s Will, which circumstances effectively disinherited the two children of the marriage.
110 I am satisfied that the plaintiff has established the following facts:
(i) between 2002 and 2009 (“the period”), the defendant collected rubbish in plastic bags from outside the plaintiff’s premises in Hawthorn;
(ii) the defendant took the plastic bags of rubbish to premises where the plaintiff’s former husband carried on a general medical practice and also resided;
(iii) during the period, and in the presence of Diana Cirona, the defendant tried to piece together various documents like a “jigsaw puzzle” in order to reconstitute whole documents (“the activity”);
(iv) the ostensible purpose advanced by the defendant for the activity was to ascertain the level of the plaintiff’s solvency and, specifically, whether she had the means to pay a debt to the defendant’s husband’s printing company of some $3,000;
(v) the defendant disseminated information from the various documents to third persons including creditors of the plaintiff.
111 The plaintiff claims that the defendant’s purpose was far wider than claimed by her and that the defendant engaged in the activity with the intention of causing as much embarrassment to the plaintiff as possible, by the dissemination of the information in the documents to various third parties. Accordingly, she seeks equitable relief from this Court for a breach of confidential information.
112 The plaintiff further alleges that the activity and the dissemination of the information by the defendant was performed with the deliberate intention of inflicting psychological harm upon her and seeks an order for damages accordingly.
113 In order to make out her case that the activity and dissemination was accompanied by a high degree of malice, which was subsequently communicated to her, and thereby heightened her distress, the plaintiff adduced evidence from her former husband’s receptionist/nurse. Ms Cirona gave evidence that she conversed with her employer in the company of the defendant on a regular basis. Ms Cirona further attested that Dr MacDougall regularly denigrated the plaintiff both to her and her employer to the effect asserted earlier (“the allegations”). In particular:
(i) the defendant admitted to Ms Cirona that she had taken the plaintiff’s hard drive at or near the front gate of the plaintiff’s premises;
(ii) at some time prior to 2010, I am satisfied that the defendant was in possession of information from the rubbish bags and information from the hard drive;
(iii) I accept, as a reasonable inference from the evidence of Mr Robertson and Ms Cirona as to the admissions made by the defendant, that it is a reasonable likelihood that the information having been gathered in the manner in which I have found, and accompanied by statements of denigration towards the plaintiff, that the information was likely to have been disseminated to third parties, the extent of which is unable to be ascertained;
114 The plaintiff relies on the following evidence to prove dissemination of the information, and damage caused thereby, which evidence I accept. At some time in 2010, Ms Cirona communicated to the plaintiff the fact of, and the substance of, the allegations, together with the fact of the activity, such that from that time, at least, the plaintiff suffered emotional distress, hurt and embarrassment, based on her belief that the information from her rubbish and hard drive had been disseminated to interested third parties with the intention of causing her harm.
115 In the circumstances of this case, I find that the information contained in torn documents in the green plastic bags was intended by the plaintiff only for collection by the municipal council under terms where it was implicit that the material would be disposed of without publication of the contents of any of the documents to third parties
116 In circumstances where many of the documents were indeed confidential and not intended for publication to third parties, I find that the documents containing the confidential information were taken unlawfully and surreptitiously by the defendant and subsequently disseminated to third parties.
117 In my view, the activities identified and the dissemination of confidential information entitles the plaintiff to equitable relief commensurate with the principles laid down by Gleeson CJ in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd,[17] wherein his Honour stated:
“… The slaughtering process is not confidential, and information about it was not obtained in circumstances of trust and confidence, or otherwise importing an obligation of good faith. The trespassers acted illegally, tortiously and surreptitiously, not merely to obtain the information, but to obtain it in a form calculated to facilitate its public display, and to maximise its potential impact upon those to whom it was ultimately conveyed. It is the conduct of the trespassers in obtaining and recording the information that is said to expose the appellant to restraint upon the use it may make of the product of that conduct.
…
It is clear that there was no relationship of trust and confidence between the respondent and the people who made, or received, the film. It is also clear that if, by information, is meant the facts as to the slaughtering methods used by the respondent, such information was not confidential in its nature. But equity may impose obligations of confidentiality even though there is no imparting of information in circumstances of trust and confidence. … The nature of the information must be such that it is capable of being regarded as confidential. A photographic image, illegally or improperly or surreptitiously obtained, where what is depicted is private, may constitute confidential information. … .”[18]
[17]Supra
[18]Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (supra) at paragraphs [32]-[34]
118 Further:
“… I would regard images and sounds of private activities, recorded by the methods employed in the present case, as confidential. There would be an obligation of confidence upon the persons who obtained them, and upon those into whose possession they came, if they knew, or ought to have known, the manner in which they were obtained.”[19]
[19]Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (supra) at paragraphs [39]
119 Further:
“There is no bright line which can be drawn between what is private and what is not. Use of the term ‘public’ is often a convenient method of contrast, but there is a large area in between what is necessarily public and what is necessarily private. An activity is not private simply because it is not done in public. It does not suffice to make an act private that, because it occurs on private property, it has such measure of protection from the public gaze as the characteristics of the property, the nature of the activity, the locality, and the disposition of the property owner combine to afford. 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 would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private.”[20]
[20]Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (supra) at paragraph [42]
120 Further, I concur with his Honour Judge O’Neill, at paragraph 20 of his decision, wherein he stated:
“On the face of it, the documents alleged by the plaintiff to have been obtained by the defendant in the course of trawling through rubbish bins included documents which, on any view, would be seen as private. In particular, they include medical information, bank records and legal documents. Although it is not entirely clear from the defendant’s Defence filed 18 January 2012,[21] nonetheless she admits that over a period of time she did trawl through the plaintiff’s rubbish and extracted what are said to be –
‘… with many other invoices, statements of account et cetera sent to the plaintiff by business and professional people including, inter alia, barristers, landscape gardeners, motor mechanics, dentists, accountants and plastic surgeons’.”
[21]The defendant has not yet filed any Defence to the plaintiff’s Second Amended Statement of Claim
121 I also consider that the activities complained of satisfy the three criteria set out by Beach J in Norman South Pty Ltd & Anor v da Silva,[22] wherein his Honour said, at paragraph 30:
“(i) the information in question must be confidential in character: it must have ‘the necessary quality of confidence about it’: Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 203 at 215;
(ii) it must have been imparted in circumstances importing an obligation of confidence: Coco v A N Clark (Engineers) Ltd [1969] RPC 41 at 47; Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd [1967] VR 37 at 40; and
(iii) there must have been an actual or threatened unauthorised use or disclosure of that information: Smith Kline & French Laboratories (Aust) Ltd v Dept of Community Services and Health (1990) 22 FCR 73 at 87 and 111–112; Prince Jefri Bolkiah v KPMG (a firm) [1999] 2 AC 222.”[23]
[22](Supra) at paragraph [30]
[23]See Australian Medic-Care Co Limited v Hamilton Pharmaceutical Pty Ltd (supra) at 638-9 [632]. But cf Gurry on Breach of Confidence (2nd Edition) at paragraphs 7.143 – 7.159
122 I adopt his Honour Judge O’Neill’s observations at paragraph 27, wherein he stated:
“… However, in my view, a person may place confidential documents as waste in the expectation that they will be destroyed or dealt with in some other manner so that they do not become public. Institutions regularly dispose of documents into rubbish disposal facilities without any intention that their confidentiality is waived. On rare occasions, those documents have somehow surfaced (medical records of persons) to the acute embarrassment of the institution and the person whose details have been disclosed. I am of the view that in placing the documents in her rubbish, Ms Owens did not waive confidentiality. In any event, as was said in Lenah:
‘… equity may impose obligations of confidentiality even though there is no imparting of information in circumstances of trust and confidence’.”[24]
[24]Norman South Pty Ltd & Anor v da Silva (supra) at paragraphs [32]-[34]
Damages
123 The remedy for breach of confidence is equitable compensation, not common law damages.
124 Defence counsel in this matter relies on the decision of Gillard J in Giller v Procopets,[25] where his Honour stated that equitable compensation did not encompass damages for “distress type injuries”.[26]
[25]Supra
[26]At paragraphs [159]-[170]
125 However, on appeal, three Justices of Appeal held that his Honour had erred:
· in holding that Ms Giller had not sought an injunction against Mr Procopets, she was not entitled to damages under s38 of the Supreme Court Act 1986;
· in holding that Australian law did not permit an award of damages for breach of confidence for mental distress falling short of psychiatric injury.[27]
[27]Giller v Procopets (supra) at [232] per Neave JA
126 Justice Neave, with whom Maxwell P concurred, concluded that Ms Giller should be awarded damages for breach of confidence, either as equitable compensation or under Lord Cairns’ Act. She further concluded that because Mr Procopets breached his duty of confidence with a deliberate purpose – and having the effect of humiliating, embarrassing and distressing Ms Giller – it is appropriate to include a component for aggravation in the award of compensation. She awarded Ms Giller the sum of $40,000, including $10,000 for aggravated damages.
127 It should be noted that Ashley JA agreed that in consequence of the breach, the appellant had suffered distress – which he took to encompass matters such as emotional upset, loss of self-esteem and embarrassment.[28]
[28]Giller v Procopets (supra) at [131] per Ashley JA
128 It should be noted that on the findings of fact by the primary judge, which were not in dispute, that the appellant had not suffered recognisable psychiatric injury, as in the present case.
129 It should also be noted that the primary judge’s findings of fact with respect to the character of both litigants was not in issue. Neave JA repeated same at paragraph 237, to the following effect:
“[Ms Giller] as a witness has no credibility and falls into the category of witnesses whose evidence cannot be accepted unless confirmed by evidence from a reliable and credible source, or admitted or corroborated by false denials of [Mr Procopets]. She is an attractive, intelligent, cunning woman who is manipulative and who will lie, deceive and mislead if it is in her interests, especially her financial interest.”
130 At paragraph 238, her Honour went on to list organisations which Ms Giller had apparently deceived to gain financial advantage (including the Department of Social Security, a childcare centre and two schools). The learned trial Judge highlighted many inconsistencies in her statements to police in her evidence to other proceedings. He also said:
“There were many instances in the proceeding when the plaintiff gave evidence that was hard to accept or unbelievable and, on occasions, was [a deliberate lie]. She is very intelligent, and it was apparent that she on occasions anticipated the cross examination and was prepared to make up a story or speculate to head off the questions. Not only did [Ms Giller] tell lies but she appears to have induced others to tell like lies.”
131 At paragraph 239, in relation to Mr Procopets, the learned trial judge said:
“… [H]e is intelligent, cunning and determined. Equally I am satisfied that he would lie and cheat if he could gain something from it. He also falls into the category of a witness whose evidence the Court would not accept unless confirmed or corroborated in some way by independent evidence, admission or false denials of the other party. There were many instances in his evidence where I am satisfied that he was telling deliberate untruths.”
132 At paragraph 240, counsel for Ms Giller did not challenge the learned trial judge’s findings about Ms Giller’s credibility. He did, however, seek to challenge several findings of fact that his Honour made. Mr Procopets made numerous challenges to his Honour’s findings of fact.
133 The facts which gave rise to the accepted breach of confidence were summarised by Ashley JA, at paragraphs 124 and 125, to the following effect:
“The respondent video recorded he and the appellant engaging in a variety of sexual activities, in the privacy of a bedroom, on 10 occasions between 19 November and 1 December 1996. The learned trial judge found that the appellant was unaware that video recording was taking place on the first five occasions; but that the contrary was the case on the next five occasions. He referred to her “playing up to the camera.
Following more discord between them, the respondent distributed, and attempted to distribute, copies of the video tape to the appellant’s family and others. He sought to persuade the recipient to view what was depicted. At least two people did so. Further, the appellant made statements to various people which inserted or applied that the appellant was an immoral woman. The respondent’s wrongdoing was largely confined to the period between 5 and 7 December 1996. On 10 December, a complaint having been made, he was taken into police custody. The respondent’s wrongdoing was largely quarantined in time. But the appellant, who was made aware of what the respondent was doing, was evidently and understandably embarrassed and upset. That she should have been so affected – although, as the judge concluded, by no means as severely as she claimed – was not surprising. It was not inconsistent with her being ‘a determined woman who was not oversensitive’.”
134 I mention the facts of this case in some detail, not because the litigants before me fit the description of the litigants before the Court of Appeal, but it assists this Court to some extent in attempting to assess damages for the hurt, embarrassment and distress caused by the defendant’s behaviour.
135 A videotape of consensual sexual activity between consenting adults, which is taken over a relatively short period of time and distributed to a limited number of persons, could, in some respects, be considered not as distressing as the activity of sorting through a person’s personal information over a number of years accompanied by similar statements of denigration and immorality.
136 In any event, it is interesting to note that Maxwell P and Neave JA considered that the appropriate sum of damages, including aggravated damages, should be $40,000, whereas Gillard J, at first instance, and Ashley JA, on appeal, considered that $5,000 was an appropriate sum without an award of aggravated damages.
137 Although not disposed to countenance an award for aggravated damages, his Honour Ashley JA did state, at paragraph 159:
“In all, I consider that the appellant should have been awarded equitable damages for mental distress; and that it was permissible to take into account in assessing such damages the manner in which the harm was inflicted by the respondent, in so far as it impacted upon the appellant’s feelings.”
138 I take this to mean that his Honour considered that the primary award of equitable damages could be affected by the behaviour which accompanies the basic breach. One can imagine such a film being shown in a semi light-hearted manner compared to it being shown and being accompanied by denigrating comments relating to immorality.
139 In any event, his Honour stated, at paragraph 160:
“The trial judge would have awarded the appellant $5000 ordinary compensatory damages and $3000 aggravated compensatory damages had he considered it possible to make an award of damages for breach of confidence. Neave JA proposes an award of $40,000 including $10,000 aggravated damages upon this cause of action. In my opinion, an award should be made which reflects the impact of the offending conduct upon the appellant’s mental state, which recognises the likelihood that the manner in which the harm was inflicted probably had a particular impact upon the appellant’s feelings, but which recognises also that the offending conduct occurred over a quite short period of time. The last-mentioned circumstance does not mean, of course, that the appellant’s mental distress was necessarily just as short lived. But the trial judge made some very clear findings – to the effect that the impact upon the appellant of what the respondent did was neither severe nor prolonged. I see no reason to depart from those findings, informed as they were by a long trial in which his Honour had heard the appellant at length. In my view, any award beyond $27,500 – this including an amount of about $7500 for what would be called aggravated damages in an action at law – would step into the impermissible realm of punishment.”
140 On the matter of damages, I should also refer to a decision of her Honour Judge Hampel of this Court in the matter of Doe v Australian Broadcasting Corporation & Ors.[29] In short, the ABC had broadcast the name of a complainant following the conviction of her former husband for rape after they had been separated for some twelve months. Her Honour found that the plaintiff, having suffered a Post-Traumatic Stress Disorder consequential upon the initial rape, had had that condition aggravated and her recovery prolonged because of the broadcasting of her name and the circumstances of the offence. Accordingly, her Honour awarded the plaintiff $85,000 compensation for psychiatric injury caused by the breach of confidence.
[29][2007] VCC 281
141 Of note, her Honour also awarded a further amount of $25,000 as compensation for the “hurt, distress, embarrassment, humiliation, shame and guilt experienced as a result of the broadcast”.[30]
[30]At paragraph [186]
142 In the case before me, I consider that the inference is available on all the evidence that the defendant, in a regular course of conduct over many years leading up to 2010, had wrongfully removed private information from the plaintiff’s rubbish bin in circumstances where the plaintiff could reasonably infer that the defendant wished to cause her, at the very least, embarrassment and distress and, at worst, actual financial harm to the daughters of the marriage.
143 I accept the evidence that the taking, reading and dissemination of the information was also accompanied by statements intended to denigrate the plaintiff such that the extent of her distress and humiliation was amplified compared to the conduct itself.
144 Taking a global approach such as that demonstrated by Ashley JA, where he considered that a global figure of $27,500 would be an appropriate maximum sum, in circumstances where the judicial range of assessment was between $5,000 and $40,000, and taking into account her Honour Judge Hampel’s assessment of $25,000 for humiliation and distress, I consider that an appropriate global award in this case is the sum of $25,000.
Intentional infliction of emotional distress
145 Justice Gillard, in the primary hearing, and Ashley and Neave JJA, considered that damages for this tort are not available in Australia at the present time. Maxwell P considered that the time had arrived where relief could be obtained under this heading. Maxwell P did not purport to award a second amount of damages over and above that awarded for breach of confidence. Even if I was disposed to grant relief under this head, I would not award any extra damages on account thereof either. In any event, I consider that I am bound by the majority decision of the Court of Appeal to the effect that relief at this time is not available in Australia.
146 I shall hear the parties as to any consequential orders.
- - -
0
3
0