Owens v Barnett (Ruling)
[2013] VCC 133
•8 March 2013
| 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
| SUE OWENS | Plaintiff |
| v | |
| LEONIE BARNETT | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 February 2013 | |
DATE OF RULING: | 8 March 2013 | |
CASE MAY BE CITED AS: | Owens v Barnett (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 133 | |
RULING
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Subject: PLEADINGS – STRIKE OUT APPLICATION
Catchwords: Application to have Statement of Claim struck out – breach of confidence – whether information “private rather than public” – whether Statement of Claim discloses “no real prospect of success”.
Legislation Cited: Civil Procedure Act 2010; Supreme Court Act 1958 (now repealed); County Court Act 1958; Limitation of Actions Act 1958
Cases Cited:Dey v Victorian Railways Commissioners (1949) 78 CLR 62; Sun Earth Homes Pty Ltd & Ors v Australian Broadcasting Commission (1990) 98 ALR 101; Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; Campbell v MGN Ltd [2004] All ER (D) 67 (May); Giller v Procopets [2008] VSCA 236; Norman South Pty Ltd & Anor v da Silva [2012] VSC 477
Ruling: Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | - |
| For the Defendant | Mr B Ryan | Brett R E Ryan |
HIS HONOUR:
1 This proceeding has a fractured and sorry history. The plaintiff, until June 2006, was a legal practitioner.
2 Initially, by her Statement of Claim, she alleged she was entitled to 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 1998 to 2009.
3 The document is rambling in part and in breach of many of the rules of pleadings. By its initial Defence filed 18 January 2012, generally the defendant denied the allegations, and in respect of certain of the causes of action, said they were statute barred pursuant to the provisions of the Limitation of Actions Act 1958.
4 The genesis of the dispute between the parties would appear to be a debt said to be owed by the plaintiff to the defendant for photocopying or printing undertaken by the defendant, as a director of printing business known as “Action Printing”, for the plaintiff over a period up until 2002. The dispute between the parties became particularly acrimonious, with the defendant admitting that over a period between 2002 and 2009, she trawled through the plaintiff’s rubbish bins, seeking documentation either to support the debt, or to investigate the ability or willingness of the plaintiff to pay it. It is difficult to understand how either could be achieved by examining household waste. According to the initial Defence (a rambling and imprecise document itself), 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!
5 In any event, after a range of orders were made by this Court, some by consent of the parties, the plaintiff’s pleading was reduced to the Second Further Amended Statement of Claim[1] in which the plaintiff’s remaining claims are for “breach of confidence” and “intentional infliction of emotional distress”, described respectively in paragraphs 4 to 15 and 16 to 20.
[1]Filed 10 March 2013
6 The Summons before the Court, issued by the defendant, contains no detail as to the orders sought, but seeks that the proceeding be dismissed with costs. The defendant’s submissions focus on the plaintiff’s allegations as to breach of confidence. No part of the application is directed to the intentional infliction of emotional distress part of the claim.
7 The application is supported by two affidavits of Brett Roland Eric Ryan sworn 21 October 2012 and 12 December 2012. Each party filed written submissions.
8 A Statement of Claim must disclose the plaintiff’s cause of action, and identify facts which, at law, substantiate that cause of action, and justify the relief or remedy sought. A Court will only reluctantly strike out a pleading. As Dixon J said in Dey v Victorian Railways Commissioners:[2]
“A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner … with or without a jury. … But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.”
[2](1949) 78 CLR 62 at paragraph [92]
9 In Sun Earth Homes Pty Ltd & Ors v Australian Broadcasting Commission,[3] Burchett J said:
“It would not be conducive to respect for the law to strike out a claim, which was not plainly untenable, before the claimant had had an opportunity to present it properly and to call evidence in its support.”
[3](1990) 98 ALR 101 at paragraph [113]
10 The common law has, of recent times, been somewhat overtaken by statutory provisions.
11 Section 63 of the Civil Procedure Act 2010 provides:
“63 Summary judgment if no real prospect of success
(1)Subject to section 64, a court may give summary judgment in any civil proceeding if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has no real prospect of success.
… .”
12 Section 64 of the Civil Procedure Act 2010 provides:
“64 Court may allow a matter to proceed to trial
Despite anything to the contrary in this Part or any rules of court, a court may order that a civil proceeding proceed to trial if the court is satisfied that, despite there being no real prospect of success the civil proceeding should not be disposed of summarily because—
(a) it is not in the interests of justice to do so; or
(b)the dispute is of such a nature that only a full hearing on the merits is appropriate.”
13 The parts of the Statement of Claim alleging “breach of confidence” may be summarised 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.
14 The plaintiff claims damages for psychological injury, including exemplary damages.
15 The matter of breach of confidence in relation to material obtained, in particular as a result of trespass, was the subject of consideration by the High Court in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd.[4] In that case, the respondent sought an injunction to prevent the broadcast by the appellant of film of the respondent’s operations at a “brush tail possum processing facility”. The film was undertaken unlawfully and surreptitiously by a trespasser who was not party to the application and subsequently provided to the Australian Broadcasting Commission. Gleeson CJ said:
“… 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. … .”[5]
[4](2001) 208 CLR 199
[5]Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (supra) at paragraphs [32]-[34]
16 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.”[6]
[6]Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (supra) at paragraph [39]
17 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.”[7]
[7]Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (supra) at paragraph [42]
18 Similar comments were made by Kirby J.[8]
[8]Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (supra) at paragraph [170]
19 The comments of Gleeson CJ in Lenah[9] received support in the House of Lords in Campbell v MGN Ltd.[10] Lord Hope of Craighead said:
“… If the information is obviously private, the situation will be one where the person to whom it relates can reasonably expect his privacy to be respected.”[11]
[9](supra)
[10][2004] All ER (D) 67 (May) at paragraphs [92]-[96]
[11]Campbell v MGN Ltd (supra) at paragraph [96]
20 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,[12] 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.”
[12]The defendant has not yet filed any Defence to the plaintiff’s Second Amended Statement of Claim.
21 The alleged justification for this exercise, said to be in accordance with legitimate investigation procedures, is a nonsense.
22 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.
23 Initially, there was a view that in a claim for breach of confidence, given its genesis lay in equity, was for injunctive relief only, and did not ground in damages. However, that concept was put to rest in Giller v Procopets,[13] in particular, Neave JA said s38 of the Supreme Court Act supported an award for damages in a breach of confidence case. Even prior to that Section, her Honour noted s62(3) of the Supreme Court Act 1958 (now repealed) did support an award of damages for breach of a right recognised in equity, such as duty of confidence.[14] Section 49 of the County Court Act 1958 provides this Court has the same jurisdiction, in particular to remedy or redress, as the Supreme Court.
[13][2008] VSCA 236
[14]Giller v Procopets (supra) at paragraph [399]
24 In Norman South Pty Ltd & Anor v da Silva,[15] Beach J considered an application by the plaintiff for damages for a breach of confidence in circumstances where emails of a personal nature passed between the second plaintiff and the defendant in the course of a relationship instigated after the parties met at an internet site, VSC 477
25 His Honour referred to the elements necessary for an action of breach of confidence as:
“(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.”[16]
[16]Norman South Pty Ltd & Anor v da Silva (supra) at paragraph [30]
26 His Honour went on to consider the passages to which I have referred in Lenah. He also referred to Theakston v MGN Ltd.[17] That case concerned the publication of video material taken in the course of sexual activities between a prostitute and the plaintiff. The activity was found not to be confidential.
[17][2002] EWHC 137 (QB)
27 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”.[18]
[18]at paragraphs 32-34
28 Arguably then, the elements of breach of confidence are established. I am thus not satisfied, the onus being upon the defendant, that the plaintiff’s action, as remains in the Second Amended Statement of Claim, has “no real prospect of success”. Further, it would not be in the interests of justice to dismiss the plaintiff’s claim.
29 Thus the defendant’s application fails.
30 No part of this ruling is concerned with whether the defendant’s allegation that the plaintiff’s cause of action is statute-barred pursuant to the Limitation of Actions Act 1958 has merit. That will be a matter for the defendant to plead in her Defence to the Second Amended Statement of Claim, and for that issue to be the subject of an interlocutory application before the Court to determine whether the defendant’s limitation point is legitimate, and/or whether the Court ought grant an extension of time to the plaintiff.
31 Further, no part of this ruling should be taken to mean there has been a breach of confidence as alleged. That will be a matter of evidence and determination before the trial judge.
32 I shall hear from the parties further as to consequent orders and directions.
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