Waller (a Pseudonym) v Barrett (a Pseudonym)
[2024] VCC 962
•30 June 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
| LYNN WALLER (a pseudonym) | Plaintiff |
| v | |
| ROMY BARRETT (a pseudonym) | Defendant |
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JUDGE: | HER HONOUR JUDGE TRAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 April 2022; 10-11 May 2022; 21-24 and 27 June 2022; 16 August 2022 | |
DATE OF JUDGMENT: | 30 June 2024 | |
CASE MAY BE CITED AS: | Waller (A Pseudonym) v Barrett (A Pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 962 | |
REASONS FOR JUDGMENT
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Catchwords: EQUITY – Breach of fiduciary duty – Where defendant brought action on behalf of plaintiff without authorisation – Where defendant enforced own judgment but not judgment obtained in favour of plaintiff – Whether ratified agency gave rise to fiduciary duties – Whether conflict of interest
RESTITUTION – Money had and received – Where defendant appropriated proceeds of plaintiff’s bank account to own use
PRACTICE AND PROCEDURE – Judgment - Interest – Date from which interest should be awarded - Whether free-standing right to interest on common law claim – Interest rate where breach of fiduciary duty – Whether interest should be compounding
NEGLIGENCE – duty of care – whether parent owes duty to estranged child not to make public statements about child
EQUITY – breach of confidence – where parent makes public statements about child
TORT – breach of statutory duty – whether available where breach of intervention order
TORT – whether tort of invasion of privacy forms part of common law of Australia – where parent makes public statement about child which not accurate
Legislation Cited: Wrongs Act 1958; Supreme Court Act 1986; Penalty Interest Rates Act 1983; Family Violence Protection Act 2008
Cases Cited:Stevens v DP World Melbourne Ltd [2022] VSCA 285; Hospital Products Ltd v United States Surgical Corporation & Ors (1984) 156 CLR 41; Breen v Williams (1986) 186 CLR 71; Paramasivam v Flynn (1998) 160 ALR 203; Healy v Bird [2022] VSC 823; Talacko v Talacko [2009] VSC 579; Hartley Poynton Ltd v Ali (2005) 11 VR 568; Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (No 3) [2003] VSC 244; Cargill Australia Ltd v Viterra Malt Pty Ltd (No 30) [2022] VSC 80; Australia Kunqian International Energy Co Pty Ltd (ACN 153 835 440) v Flash Lighting Company Ltd [2020] VSCA 259; Rossi Recycling Pty Ltd v Buckland Valley Pty Ltd (Costs and Interest) [2023] VSC 628; Weatherbeeta Limited v Hammersmith Nominees Pty Ltd (No 2) [2019] VSC 713; Bullhead Pty Ltd v Brickmakers Place Pty Ltd (in Liq) and Others [No 2] (2019) 58 VR 129; Hagan v Waterhouse (1991) 34 NSWLR 308; Peet Ltd v Richmond (2011) 33 VR 465; Sempra Metals Ltd v Inland Revenue Commissioners [2008] 1 AC 561; Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669; Stephens v Cameron (2021) 65 VR 117; Commonwealth v SCI Operations Pty Ltd (1998) 192 CLR 285; Heydon v NRMA Limited & Ors (No 2) Pty Ltd (2001) 53 NSWLR 600; Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221; Roxborough v Rothmans of Pall Mall (2001) 208 CLR 516; Chow v Yang [2010] SASC 96; Redland City Council v Kozik (2024) 98 ALJR 544; Thorne v Kennedy (2017) 263 CLR 85; Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392; Gardiner v State of Victoria [1999] 2 VR 461; O’Connor v SP Bray Ltd (1937) 56 CLR 464; Doe v Australian Broadcasting Corporation [2007] VCC 281; DOQ 17 v Australian Financial Security Authority (No 3) [2019] FCA 1488; Jane Doe v Fairfax Media Publications Pty Limited & Anor [2018] NSWSC 1996; Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649; Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; Hahn v Conley (1971) 126 CLR 276; Coco v AN Clark (Engineers) Ltd (1968) 1A IPR 587; Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] 208 CLR 199; AFL and Anor v The Age Company Limited & Ors (2006) 15 VR 419; G v Day [1982] NSWLR 24; Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd [1967] VR 37; Campbell v MGN LTD [2004] 2 AC 457; Wilson v Ferguson [2015] WASC 15; Donnelly v Amalgamated Television Services Pty Ltd (1998) 45 NSWLR 570; Grosse v Purvis [2003] QDC 151; Victoria Park Racing and Recreation Grounds Company Limited v Taylor and Others (1937) 58 CLR 479; Ultra Tune Australia Pty Ltd v Cole, Jennifer & Anor (No 3) [2023] VSC 700; Hosking v Runting [2005] 1 NZLR 1; Murray v Express Newspapers Plc [2008] EWCA Civ 446; Duchess of Sussex v Associated Newspapers Ltd [2021] EWCA Civ 1810; Lloyd v Google LLC [2022] 1 All ER (Comm) 1107; Jones v Tsige [2012] ONCA 32; Saltman Engineering Co Ltd v Campbell Engineering Co Ltd [1963] 3 All ER 413; Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd [1967] VR 37; Farm Transparency International Ltd v New South Wales (2022) 403 ALR 1; Douglas v Hello! Ltd (No 1) [2001] QB 967 at 1001; Clubb v Edwards (2019) 267 CLR
Judgment: Judgment for plaintiff
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr I Upjohn KC with Mr P Hamilton | Katherine Moorhouse-Perks |
| For the Defendant | Mr J Stavris | Lim and Tng Lawyers |
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Pseudonym orders have been made which prohibit the publication of the name of the plaintiff or defendant to this proceeding, or any report that identifies the plaintiff. The orders do not prohibit the publication of this judgment, or any part of this judgment. A copy of the orders, and information about whether the pseudonym orders remain in force, may be obtained from the County Court registry.
Table of Contents
Introduction
Factual background to claims
Reliability of Lynn and Romy’s oral evidence
Reliability of Lynn’s evidence
Reliability of Romy’s evidence
The term deposit claims
The parties’ submissions
Claim for repayment of $20,177.61
Claim for interest
Interest pursuant to statute
Interest for breach of fiduciary duty
Interest on money had and received claim
Entitlement to interest
The County Court judgment claims
Background to claims
The parties’ submissions
Breach of fiduciary duty
Unconscionability
The publication claims
Breach of statutory duty
The parties’ submissions
Consideration
Negligence
The parties’ submissions
Consideration
Breach of confidence
The parties’ submissions
Consideration
Table 1: Findings in relation to breach of confidence claim
Additional remarks in relation to confidential information
Tort of invasion of privacy
The parties’ submissions
The question to be determined
The current state of the Australian case law in relation to the existence of a tort of privacy
The approach applied by the common law of the United Kingdom, New Zealand, Canada and the United States
Can the recognition of a tort of invasion of privacy be viewed as an incremental development of the existing action for breach of confidence?
Application to the facts of the present case
Assessment of damages
In relation to specific claims proven
In relation to all Romy’s post-stabbing conduct
Aggravated/exemplary damages
Conclusion
HER HONOUR:
Introduction
1On 2 January 2010, the defendant, who we are calling Romy Barrett,[1] was leaving his birthday celebration at a restaurant, with his arm around his wife, Dianne. As the loving couple approached their car, a man leaped out from behind a car and ferociously attacked Romy with a knife, stabbing him six times and slitting his throat.
[1] Pseudonyms have been used for all family members in this judgment.
2In an incredible stroke of good fortune for Romy, two doctors happened to be nearby. They disturbed the attacker, who fled the scene. The two doctors administered first aid to Romy, and an ambulance was called. Romy was taken to hospital and placed in an induced coma for sixteen days. Had it not been for the serendipitous intervention of the two doctors, it seems unlikely that Romy would have survived this shocking, unprovoked, murderous attack.
3By the time Romy discharged himself from hospital six weeks later, his wife, Dianne, had been arrested and charged with his attempted murder.
4In October 2011, a jury found Dianne guilty of Romy’s attempted murder. She was sentenced by Curtain J on 28 November 2011. The sentencing remarks record that Romy’s attacker and Dianne had been secret lovers for the previous three years. Together, the two had planned Romy’s murder in the hope that, with Romy out of the way, they could start a new life together.
5Dianne was sentenced to twelve years’ imprisonment, with a non-parole period of nine years.
6The plaintiff, who we are calling Lynn Waller, is the daughter of Romy and Dianne. At the time of the attack on her father, she was thirteen years old. After the attack, with her father critically ill in hospital and her mother on remand, she was taken to live with her maternal grandparents. Concerns were raised about the appropriateness of the maternal grandparents’ care. It appeared that they were placing undue pressure on Lynn to support her mother (who at that time was maintaining her innocence). Lynn was removed from their care and placed with her maternal aunt. Ultimately, in April 2012, Lynn was moved to an out-of-home foster care placement in an undisclosed location. Throughout, Lynn has been utterly estranged from her father. To this day, she believes that it would have been easier for her if Romy had died on that terrible day in January 2010.
7In this proceeding, Lynn makes the following claims against her father, Romy:
(a) the term deposit claims: a claim for breach of fiduciary, or money had and received, in relation to a Commonwealth Bank term deposit in Lynn’s name, from which Romy withdrew $20,177.61 on 25 February 2010;
(b) the County Court judgment claims: a claim for unconscionable conduct or breach of fiduciary duty in relation to Romy’s conduct in:
(i)commencing County Court proceedings against Dianne, naming himself and each of his children, including Lynn, as co-plaintiffs;
(ii)obtaining a judgment in that proceeding that Dianne pay him damages in the sum of $2,409,000 and that Dianne pay Lynn damages in the sum of $300,000; and
(iii)enforcing the judgment in his favour against Dianne, but not taking any steps to enforce the judgment he had obtained Lynn’s favour;
(c) the publication claims: claims of breach of confidence, breach of statutory duty, invasion of privacy and negligence in relation to five publications which refer to Lynn:
(i)an article in Marie Claire magazine published in February 2012 (“the Marie Claire article”);
(ii)an article in The Age published on 31 July 2014 (“The Age article”);
(iii)an article in the Sydney Morning Herald published on 2 August 2014 (“the SMH article”);
(iv)an interview with Romy played on the Seven Network on 4 August 2014 in its “Sunday Night” program (“the Ch 7 Sunday Night program”);
(v)a book authored by Megan Norris entitled Love you to Death: A Story of Sex, Betrayal and Murder Gone Wrong, published in August 2014 (“Love you to Death book”).
8As will be apparent, this case comes to the Court on a background of intense and distressing trauma and deep family dysfunction. That background clearly impacted the presentation of both Lynn and Romy in court and their conduct of this litigation. There was palpable, visceral pain on both sides. The Court was tasked with the extremely difficult task of determining the specific claims in this proceeding in a background that was so much larger and more complex than those claims allowed space for, while endeavouring to protect a plaintiff, who everybody agreed was extremely vulnerable, from further harm, and be fair to both parties. There is an artificiality in shoehorning the complexity of that background into existing legal categories, developed to deal with cases so far removed from this one. In the end, though, the Court’s role is limited to determining the legal rights and duties operating between the parties on the claims made, and evidence led, in this proceeding.
Factual background to claims
9After the attack, Lynn’s maternal grandparents moved into the marital home to help take care of Lynn and her two younger siblings. Dianne was arrested on 25 January 2010. Around the same time, Romy’s mother moved into the matrimonial home and Lynn’s maternal grandparents were required to leave. They took Lynn with them.
10In late January or early February 2010, Romy discharged himself from hospital and returned to the marital home to take care of Lynn’s two younger siblings. Lynn was never to return to his care.
11On 24 February 2010, Romy’s lawyers wrote to the Commonwealth Bank stating that they acted on behalf of Romy, and that he was the father of Lynn and her two siblings. The lawyers requested details of term deposits held in the childrens’ names. They were informed there was a Commonwealth Bank term deposit in the name of Lynn, for which Dianne was a signatory. On 26 February 2010, Romy signed a term-deposit withdrawal request on this account for the amount of $20,177.61. He directed that the money be paid into an account in his name. As a result, the term deposit was closed and the total balance of $20,177.61 was paid to Romy.
12In late February/early March 2010, Lynn made reports to a child protection worker that Romy had sexually abused her.
13On 24 March 2010, Lynn went to live with her maternal aunt after concerns were raised about the suitability of her maternal grandparents acting as her carers.
14On 30 March 2010, an intervention order (“IVO”) was granted against Romy, on the application of a member of the Victorian police (“first IVO”). The protected affected family members were named as Lynn and her maternal aunt.
15On 31 May 2011, Lynn’s maternal aunt made an application for an IVO against Romy, naming herself and Lynn as the affected family members. An interim IVO was granted the same day (“second IVO”) and the final hearing was listed for 7 June 2011.
16On 7 June 2011, the Magistrates’ Court granted a final IVO against Romy (“third IVO”), naming Lynn and her maternal aunt as the protected affected family members. The third IVO was indefinite; and remains in force to this day.
17On 28 November 2011, Dianne was sentenced to twelve years’ imprisonment for the attempted murder of Romy. Judge Curtain’s sentencing reasons included reference to the estrangement which had occurred between Romy and Lynn as a consequence of Dianne’s crime.
18The January 2012 edition of Marie Claire[2] included an article entitled “She said she loved me…then she tried to kill me” (“the Marie Claire article”), which featured photographs of Romy and Dianne and pixelated photos of their children (including Lynn). The Marie Claire article included the following passage:
“While [Romy] has custody of the twins, he’s estranged from eldest daughter [Lynn], now 15. She refused to believe that her mother was guilty and begged her father not to press charges. Heartbreakingly, their relationship crumbled and [Lynn] now lives with a maternal aunt. “That has been the most tragic and unbearable part of this whole story,” says [Romy], tearfully….the only reconciliation he hopes for is with [Lynn]”.[3]
[2] The lifestyle, fashion and beauty magazine
[3]Joint Court Book (“JCB”) 220
19In February 2012, the then fifteen-year-old Lynn participated in a Channel 7 news piece, in which she was recorded as having said, in relation to her mother:
“SHE’S BEEN MY BEST FRIEND. SHE’S ALWAYS BEEN THERE FOR ME. ALWAYS.
…
… I JUST WANT THE TRUTH TO COME OUT.
…
… MY MUM WAS SET UP.”[4]
[4]JCB 200
20On 23 February 2012, Lynn was admitted to the Austin Hospital. According to the Discharge Summary, she:
“…was referred for crisis containment by her private psychiatrist Dr Helen Driscoll due to acute exacerbation of PTSD symptoms following seeing her father ([Romy]), who [Lynn] has an intervention order against. … .”[5]
[5]Joint Supplementary Court Book (“JSCB”)` 1248
21She was not discharged until 18 April 2012,[6] when she was removed from the care of her maternal aunt and placed into foster care.[7]
[6]Ibid
[7] Statement of plaintiff, dated 25 September 2020, JCB 134-135, paragraph [15]
22On 1 March 2012, Romy filed a writ in the County Court of Victoria naming himself, Lynn and her two younger siblings as co-plaintiffs; and Dianne as defendant (“the CC proceeding”).
23In about June 2012, Romy filed an amended statement of claim in the CC proceeding.[8] The Amended Statement of Claim included detailed allegations concerning the harm said to have been suffered by Lynn (the named second plaintiff in the CC proceeding) as a result of Dianne’s actions.
[8]JCB 223
24On 26 July 2012, Romy signed a memorandum of agreement with professional author, Megan Norris, and publisher, The Five Mile Press, for the publication of a book telling his story, with 50 per cent of the royalties to be paid to Megan Norris and 50 per cent of the royalties to be paid to Romy.[9] Romy and Norris are named in the agreement as the “Authors”. The agreement included an obligation on Romy and Ms Norris to read and correct all proofs of the book.
[9]JSCB 1346
25In September 2012, Lynn saw a back issue of the Marie Claire article when at the Royal Melbourne Show. Later that day, she was found by her carer coughing and spluttering, after having attempted to choke herself with her scarf.
26On 13 December 2012, Judge Misso gave judgment against Dianne in the CC proceeding:
(a) in favour of Romy in the sum of $2,409.000; and
(b) in favour of Lynn in the sum of $300,000.
27In the note of the judgment,[10] Romy was recorded as having appeared for the plaintiffs, self-represented. There was no appearance recorded for the defendant.
[10] JCB 233
28On 17 January 2013, Romy wrote to the County Court seeking orders transferring three properties held in his and Dianne’s joint names into his sole name in order to enforce the judgment given in his favour in the CC proceeding.[11] He took no comparable steps to enforce the judgment in Lynn’s favour. On 24 January 2023, Judge Kings made an in-chambers order that Dianne transfer her title to three Australian properties to Romy. On 5 March 2013, Judge Misso made an order directing the Registrar to execute the documents necessary to give effect to Judge Kings’ order.
[11]JCB 234
29In about January 2014, Romy and Lynn attended a counselling meeting with a view to exploring a reconciliation (“the counselling meeting”). The counselling meeting was also attended by Lynn’s psychiatrist, Lynn’s foster carer, Romy’s counsellor and two DHS workers. The counselling meeting terminated abruptly after Lynn became upset and yelled at her father, saying either words to the effect of “I wish you had been killed” (Romy’s account) or “it would have been easier for me if you had died” (Lynn’s account).
30Lynn subsequently sent a detailed email to her father on 14 February 2014, in essence explaining why she should be permitted to maintain contact with her two younger siblings.[12]
[12]JSCB 1558
31In August 2014, Romy’s story was published in a book entitled Love you to Death by Megan Norris (“Love you to Death book”). The Love you to Death book included a number of references to Lynn:
(a) “Inside the card, [Dianne] and their 13-year-old daughter [Lynn] had penned birthday wishes. ‘To the coolest dad ever,’ [Lynn] wrote. ‘I wish you the best 44th birthday ever! Enjoy your present … Love’”;[13]
[13]JCB 257
(b) And:
“[Lynn’s] face peered out from a doorway, her brown eyes brimming with tears.
‘I haven’t told her everything,’ [Dianne]’s mum explained tactfully. [Dianne] took her daughter by the hand and led her into the lounge room, where she attempted to explain what had happened to her dad.”’;[14]
[14]JCB 258
(c) And:
“‘Happy birthday, Dad,’ [Lynn] chirped, glancing up from the laptop she was given for Christmas. [Romy] pecked her on the cheek, not surprised to find her tapping away. [Lynn] was already absorbed in some Facebook discussion, no doubt chatting to friends who were intent on updating each other on the finer details of their uneventful lives.”;[15]
[15]JCB 259
(d) And:
“Downstairs, [Lynn] was still mesmerised by the activity on her computer. [Romy] scooted past her in his bike gear and disappeared down the stairs to the garage, where he kept his bike. [Lynn’s] apathy about the morning ride wasn’t such a disappointment. His four-day-a-week regime of running and weight training, which began at 5.30 a.m., had boosted his fitness levels. These days, he could breeze along Melbourne’s bike tracks on his weekends off, notching up over a hundred kilometres without any real effort. Cycling solo meant he could take as long as he liked and travel further. With the city in summer holiday mode for most of January, the streets would be quiet.”;[16]
[16]Ibid
(e) And:
“[Lynn] apprehensively kissed her father’s cheek. ‘I love you, Dad,’ she whispered, trying not to look at the thick row of stitches marking his neck wound. … .”;[17]
[17]JCB 263
(f) And:
“On Monday afternoon, [Romy] phoned [Lynn’s] school, Loyola College, to explain his predicament about the school fees and the missing credit card. The school was sympathetic and said it could wait until he was fully recovered.”;[18]
[18]JCB 264
(g) And:
“The social worker asked if there was anything she could do to help him. There was something, [Romy] said. Since [Dianne]’s arrest, his children hadn’t been to visit him. ‘I want to see my kids,’ he said. ‘Can you help arrange this?’
[Romy] knew that [Dianne’s] father was in denial over his daughter’s role in the attempted murder, and [Lynn] had spoken to him, naively insisting that he do something to get her mother out of jail.
‘I don’t believe my in-laws are telling [Lynn] the true situation,’ he said. His daughter’s distress when they spoke on the phone also indicated she was going to need counselling to come to terms with her mother’s crime.
The social worker organised a family meeting in [Romy]’s room. The meeting passed in a fog for [Romy], who was heavily sedated. ‘Can’t we sort it out when I come home?’ he asked miserably.
‘No,’ chorused [Romy’s family members]. ‘Not if you want to see your kids.’
His family pointed out that [Dianne’s] mother had moved into his home, where she was caring for his three children. She wouldn’t be able to stay there after [Romy] returned home.
The social worker considered the situation and made a suggestion. ‘Would one of you be prepared to move in and take care of the twins?’ she asked.”;[19]
[19]Ibid
(h) And:
“Outside, [Lynn] sat beside the front fence, looking confused and miserable. She was speaking to her father on her mobile. [Romy] tried to reassure her. ‘Your aunts are going to care for you, just until I get home.’ It would only be for a few days, he said. He told [Lynn] how much he loved her.
[Romy’s sister] knelt beside [Lynn], and [Lynn’s cousin] spoke to her cousin in a comforting tone. ‘[Lynn], this is your home. You don’t have to go anywhere. Your dad needs you and wants you to stay. Why don’t you stay here with [your sister] and [your brother]? You have all your things here.’ [Lynn] stared numbly at her feet.
[Lynn’s grandmother] scurried out of the house toward her granddaughter. ‘Come on, [Lynn], hurry up!’ she scolded, tugging the teenager away from the fence. [Lynn] obediently scrambled up and followed her toward a waiting cab. A second cab arrived, and [Dianne’s sister] began to fill it with her sister’s belongings.
[Romy’s sister] raced after [Lynn’s grandmother]. ‘We need to know the twins’ routines,’ she said gently.
[Lynn’s grandmother] turned to her with sorrowful eyes. ‘Please tell [Romy] we have to see the twins,’ she said sadly.
[Romy’s sister] couldn’t help but feel sorry for her. ‘Don’t worry,’ she said reassuringly. ‘[Romy] will let you see them.’ [Lynn] was sitting silently in the back of the cab.
[Lynn’s cousin] called out, ‘Your dad loves you’ as [Lynn] stared from the window. Later, [Lynn] rang her dad at the hospital in tears, her tone accusing. ‘I can’t believe you just did that,’ she sobbed.”;[20]
[20]JCB 265
(i) And:
“He was also desperately trying to hide his distress over [Lynn’s] absence. [Lynn’s uncle] had explained tactfully as he could that [Lynn] had elected to stay with her grandparents. [Romy] later discussed [Lynn’s] refusal to visit with his social worker.
‘[Lynn’s] very vulnerable,’ he said, his face strained. ‘[Dianne’s] family are in denial about her involvement in the attempt on my life and I’m worried that their warped view about what happened will influence [Lynn].’ He’d already lost his wife and marriage. He didn’t want to lose his daughter, but he had no idea what to do.”;[21]
[21]JCB 265-266
(j) And:
“The social worker documented [Romy’s] concerns and her own fears about inappropriate contact between [Dianne] and her daughter. She shared [Romy’s] fears that her grandparents might encourage [Lynn] to form a warped view of the crime.
She noted that [Lynn] was already refusing to participate in counselling with her injured father, and had turned down his request that she visit the hospital with her siblings. The social worker advised [Romy] to keep communication channels open and try to maintain the relationship with [Lynn], who was obviously as traumatised by the effective loss of both her parents as he was by the attempt on his life.
[Romy] had asked his lawyers to investigate counselling for [Lynn] as a victim of her mother’s crime. The social worker agreed to make (sic) determine if help was available.”;[22]
(k) And:
He still missed [Lynn] badly, but he had to accept she might never decide to be a part of his life again. [Romy] was aware that [Lynn] still visited her mother every fortnight in prison, and suspected she still blamed him for the crime her mother had orchestrated. But if [Lynn] one day changed her mind, his new door would remain open.”[23]
[22]JCB 267
[23]JCB 268
32As part of the pre-publicity for the Love you to Death book:
(a) on 31 July 2014, an article authored by Carolyn Webb was published in The Age (“The Age article”);
(b) on 2 August 2014, an article authored by Carolyn Webb was published in the Sydney Morning Herald (“the SMH article”); and
(c) there was a report on the Channel 7 Sunday Night program (“the Ch 7 Sunday Night program”).
33The Age article included the following:
“But a greater pain is the estrangement from his oldest daughter. Just 13 at the time of the attack on January 2, 2010, and staying with her maternal grandparents after [Dianne’s] arrest, she begged him to get her mum out of jail.
In January, after four years of no contact, father and daughter met in the presence of a counsellor, but his daughter broke down, he says, saying ‘that I’m the reason why her mum’s in jail and she wished I got killed’.
[Romy] said his daughter emailed to apologise but there was no further contact.
‘She has been the biggest victim out of this. Such a vulnerable, beautiful age, to go through something like this’.”[24]
[24]JCB 244-245
34The SMH article contained the following:
“… worse than nearly dying in the frenzied stabbing is the estrangement it caused from his oldest daughter, now 18.
She was just 13 at the time of the attack, and soon after [Dianne’s] arrest sobbed hysterically to him on the phone: ‘Mum’s in jail, you have to help her to get out.’
During [Romy’s] recovery, she chose to stay with her maternal grandparents and visited [Dianne] in custody.
[Romy] says his eldest daughter refused to speak to him for the next four years, and became deeply troubled. For the last few years, she has lived with another family. She is now in year 12, studying for her Victorian Certificate of Education.
Father and daughter used to be close: attending AFL games to watch their beloved Carlton, and sharing long bike rides around Melbourne. ‘I’ve lost my daughter,’ [Romy] says. ‘She was such a great student, she was excelling. We had a great relationship,’ he says.
In January this year, father and daughter had a breakthrough meeting, supervised by a counsellor, but it ended badly. His daughter broke down. ‘She said that I’m the reason why her mum’s in jail and she wished I’d got killed.’
He says that she later emailed him an apology, but there has been no further contact and [Romy] won’t push it. He wants her to know that he loves her and he understands why she would feel confused. He sees her as the biggest victim of all.
His daughter is now an adult and can choose whether to see him or not, he says. He can’t see it happening soon, but hopes that one day she will come around. What would he say to her today? ‘I just hope you’re in good spirits and take care, always thinking of you. My door’s always open.”[25]
[25]JCB 252-253
35The Ch 7 Sunday Night program included the following exchange:
“RAHNI SADLER: And worse was to come. Before she was convicted, [Dianne], in an act of pure evil, told their daughter, [Lynn], the same twisted story, convincing the teenager that her father had masterminded his own stabbing to frame her mum. [Lynn] and [Romy] have been estranged ever since.
If [Lynn] is watching this now, what would you like to say to her?
[ROMY BARRETT]: Uh… I hope she’s OK. And, um… ..this is my story. This is the truth. And my door will always be open.”[26]
[26]JSCB 1456
36Lynn turned eighteen on 1 March 2014. These proceedings were commenced on 11 September 2019.
Reliability of Lynn and Romy’s oral evidence
37There was very little dispute between the parties as to the events which gave rise to the claims made by Lynn in this proceeding. Thus, Romy stated in closing submissions:[27]
“The defendant does not deny the conduct or facts of the incidents to which the plaintiff refers. However, the defendant did not engage in any wrongdoing or breach of any duty. …”
[27] Outline of Closing Submissions of the Defendant, dated 26 July 2022, paragraph [3]
38Nevertheless, the reliability of Romy and Lynn’s testimony had some relevance to the issues to be decided in this judgment, for example:
(a) there was some direct conflict in the evidence of Lynn and Romy about what happened at the counselling meeting between Lynn and Romy in February 2014. Lynn claimed (but Romy denied) that the meeting was expressly stated to be confidential. Romy claimed Lynn said words to the effect of “I wish you were dead”. Lynn claimed she actually said words to the effect of “it would be better for me if you had died”;
(b) Romy also submitted that the Court should find that Lynn had disclosed what took place at the counselling meeting to her mother;
(c) Lynn submitted that the Court should not accept Romy’s evidence that he had disclosed that he was estranged from her and that she held an IVO against him, to the County Court prior to obtaining judgment in the CC proceedings, nor that he had disclosed that judgment to the Department of Human Services (as it then was) (“DHS”);
(d) Lynn also submitted that the Court should not accept Romy’s attempt to minimise his role in the making of the publications and should find that Romy was the source of the relevant statements about Lynn in the publications, and particularly should not accept Romy’s evidence that he had disclosed the existence of the IVOs to Megan Norris, or any of the journalists; and
(e) Romy submitted that the Court should not accept that Lynn was unaware of the CC proceedings; and
(f) Romy submitted that the Court should not accept Lynn’s evidence of the severity of her symptoms, particularly over the last few years, and their connection to his conduct.
39Both Lynn and Romy were clearly operating from very powerful and deeply-held narratives concerning their lives and their respective roles in those narratives.
40Lynn, as I have already mentioned, had an intense animosity towards her father. Although this did not form any part of her claim in this proceeding, Lynn maintains that her father sexually abused her prior to the stabbing, and that he stalked and threatened to kill her after the stabbing. She was quite genuine and open in her belief that it would have been easier for her had he died that day.
41Romy’s narrative was of an altruistic victim-survivor ꟷ a selfless and loving husband and father ꟷ who was an innocent victim of the “evil” perpetuated, not just by his wife, but also his in-laws, media and others, yet had worked tirelessly for the rights of victims of crime. His narrative concerning his daughter was less fixed – while his express words spoke of his care and love for her, and belief that she was also a victim, his face, at times, betrayed something more akin to rage than compassion.
42As I will explain further below, after hearing oral evidence, the Court was left with the distinct impression that both parties were shaping and moulding their evidence to maintain their respective narrative, not only to external listeners, but also to themselves. Invariably, this impacted on the reliability of the evidence that they gave. Because there was conflict in the evidence (albeit limited) and a significant attack was mounted by both Lynn and the Romy on the credibility and reliability of their counterpart, it is necessary for the Court to traverse in some detail the evidence of both, and make observations (both general and specific) about their evidence and demeanour when giving evidence. At times, that can feel harsh, given the unmistakeable impact of trauma suffered on both sides. In doing so, the Court is passing judgment only on the specific claims made by Lynn in this proceeding, not on any of the parties or their morality more generally.
Reliability of Lynn’s evidence
43In relation to Lynn specifically, both expert psychiatrists who gave evidence in this proceeding were of the view that Lynn was deeply unwell. She suffers from chronic post-traumatic stress disorder, chronic major depression and an eating disorder, and possibly also a personality disorder with borderline features and psychotic phenomena. She was described by consultant psychiatrist, Dr Nathan Serry, as having a guarded and unfavourable prognosis. She presented in court as highly vulnerable, anxious and emotional. She demonstrated a particularly strong aversion to, and fear of, Romy. As I have mentioned, this fear extended to a belief that Romy was stalking her and had threatened to kill her.
44As recently stated by the Court of Appeal in Stevens v DP World Melbourne Ltd:[28]
“… evidence given by a plaintiff with a mental injury is often affected by the condition from which the plaintiff is suffering (and sometimes in critical respects). For that reason, such evidence may be less reliable than evidence that might be given in another case by a person in normal mental health. Allowances need to be made for such a possibility … Where there is a medical condition which might affect the way in which a witness might give his or her evidence, a court does not merely reject that witness’s evidence because of what is said to be his or her unreliability: a court is duty bound to consider what the balance of the evidence discloses, even if the witness’s evidence cannot be accepted on its own. At the very least the judge should have analysed the effect of the plaintiff’s mental injury (about which there was a consensus of medical opinion), upon the reliability of the plaintiff’s evidence, before concluding that he was a dishonest witness who fabricated critical parts of his evidence.”[29]
[28][2022] VSCA 285
[29] (Ibid) at paragraph [44]
45These cautionary comments are particularly pertinent to the present case.
46Two specific lines of questioning in cross-examination raised concerns as to the credibility and reliability of Lynn’s evidence. First, there was her evidence in relation to her mobile phone records. The background to this evidence is as follows. On 6 May 2023, I made case management orders in the proceeding, requiring Lynn to disclose her telephone numbers and providers between September 2013 and April 2014, and between 1 January 2020 to present, and granting Romy leave to issue subpoenas to produce call charge records in relation to those numbers. In the other matters section of those orders, I directed the following be recorded:
“Other Matters
The Court is of the view that the following documents are relevant and discoverable by the plaintiff:
- Call charge records for the periods 1 September 2013 to 30 April 2014
- Call charge records for the periods 1 January 2020 to present.
The Court expects that the plaintiff will take all reasonable steps within her power to obtain and discover these documents.”
47When Romy endeavoured to subpoena Lynn’s stated provider, Optus, he was informed by Optus that there was no Optus account in relation to Lynn’s current mobile phone number.
48When cross-examined about this issue, Lynn responded with quite specific evidence to the effect that her mobile phone service was provided by Optus; that it was a prepaid account for which she purchased top-ups of approximately $30 every four weeks, either online or from a grocery store when she did shopping; and that the reason Optus had not produced any records in response to Romy’s subpoena was because her number was a special silent number.
A:“… because I have always been with prepaid and I have changed my number regularly because of being stalked and for my privacy reasons, and getting constant phone calls and harassment phone calls and everything, my current number, when I made the prepaid account, I said to them, ‘Look, I want it to be a silent number because I don't want anyone ever being able to access my records on my behalf because I'm scared someone might pretend to be me and then get my location’, and told them that I have an intervention order. So they said, ‘Yeah, we can make a private number and continue to not hold any records on your account of you.’ And like, ever since then I just get prepaid and I top up. So I said to them, ‘I need my court records because it's been requested by a court’ and they said, ‘We will do everything we can to get them to you.’ From May I haven't received an update so I called them again, and I still haven't heard anything. So –
Q:You see - - - ?---
A:They also said to me that when I made the account that they are going to have it under, like, a pseudonym or identify it under like, something else, because of my privacy concerns. They are just going to have no record. I said to them, ‘Despite my concerns like, when I first made it, that I still need the account records because it is going to be subpoenaed’, and they are like, ‘We will do everything we can to get it to you.’”[30]
[30]Transcript (“T”) 260, Lines (“L”) 11 ꟷ T261, L17
49The cross-examination continued:
Q:“Do you get any mail from Optus regarding your telephone number?---
A:No, because I just get prepaid.
Q:So how do you top up your phone?---
A:I do it on-line and just purchase a voucher, or I go and get one from a grocery store when we do our shopping.
Q:How much do you spend on your mobile phone?---
A:On my prepaid?
Q:Yes?---
A:Like $30, top up.
Q:How often do you top up?---
A:Every 28 days.
Q:So $30 is enough to last you 28 days?---
A:Yes, because I'm not very tech savvy, I don't really spend a lot of like – I don't do social media for my privacy and stuff, so I have wifi at home and that gets me by.
Q:You have seen a letter from Optus that says that there is no history of that number being subscribed to Optus?---
A:Yes, that's what they said to me as well, that they won't have any records of my history with them because - - -
…
Q:So she told you that the mobile number has no history as being subscribed to the Optus network?---
A:But I already knew that because I contacted Optus myself, I'm the account holder.
Q:Her Honour asked me to contact Optus and Optus have responded to say that irrespective of whether it is a silent number or not, records would exist for that number?---
A:I told them - because I have had a life-time intervention order that in the past someone has tried to pretend that they've been me to access personal records and I don't want anyone to be able to do that. And I had to show them the intervention order at the time for them to believe me when I made the number, because I have had several numbers from being harassed and stuff in the past.
Q:When did all this happen?---
A:When I made the phone number a few years ago.
Q:When did you get the phone number?---
A:I can't remember how long I have had it for. I have had many.
Q:So you say that the telephone number is not in your name?---
A:It is in my name, I'm the account holder.
Q:So do you get - - - ?---
A:You can't get a phone number without showing a licence, so -
Q:Have you got anything that will show this court that telephone number being registered to your name?---
A:You can call my number, it is my number. And I had to show my SIM - my licence to activate the SIM.”[31]
[31] T261, L22 ꟷ T263, L20
50The proceeding was adjourned to allow Lynn to provide instructions. It was then agreed that the actual SIM card in the plaintiff’s mobile phone would be removed and produced to the Court in the presence of the parties.
51It was a Telstra SIM card.[32]
[32] Exhibit D7 – Picture of micro-sim card provided by Plaintiff emailed to Court on 21 June 2022
52Lynn was asked to explain how she came to give her previous evidence that her provider was Optus on a prepaid account:
“I have always been with Optus, I’m really not technologically savvy at all and this phone was purchased by my partner at the time and he works at a business that sells phones. So I said to him I needed a new phone, I need to change my number. I gave my licence to him at the desk and he set it up for me. He bought me that phone and said, ‘It will just all come through, it will automatically top up.’ And I used to purchase my top ups from the supermarket for Optus ages ago and then this has just been constantly running. … Because on my bank statement when it recharges it doesn’t say – it just says, ‘Top up’, it doesn’t say the business. … .
… I’m sorry for not understanding, and I can be in contact with Telstra to get them. I’m just really not tech savvy, I’m sorry.”[33]
[33] T267, L10 ꟷ T268, L3
53She also explained that she had had this number since March 2019.[34]
[34] T269, L4-6
54Ultimately, Lynn also produced her bank statements. Those statements showed an amount of $45 paid out of her Commonwealth Bank account monthly to “Telstra DDebit”.[35] The words “top-up” did not appear.
[35]Exhibit D15 - Bundle of unredacted bank statements emailed to the Court on 27 June 2022. Tendered as a confidential exhibit
55Lynn’s evidence on this issue was conflicting, implausible and ultimately demonstrably false in significant respects. The conclusion that Lynn has lied under oath in this evidence about her mobile phone provider is compelling. Her evidence (ultimately) was that she has had this number since March 2019, a period of over three years. Yet she gave quite specific evidence that this number was a prepaid account with Optus, for which she purchased top-ups of $30 every twenty-eight days, either online or from a grocery store. This cannot be explained as a mere failure of recollection. Once this evidence was shown to be untrue, she sought to explain it on the basis that she had forgotten because the charge was recorded in her bank statements as “top-up” without reference to any business name. The bank statements, when produced, showed this to also be untrue.
56I find that Lynn lied in her evidence about her mobile phone provider.
57The fact that a witness lies about one matter does not necessarily render the entirety of their evidence unreliable. At times in court there was palpable terror in Lynn’s face when she looked at Romy. Her fear of Romy, and her fear of disclosing personal details to him may have been misguided, but there was nothing to suggest it was anything other than a genuinely, and deeply, felt emotion. Indeed, Romy’s expert psychiatrist, Associate Professor Peter Doherty, relied upon the experience of this fear in his diagnosis of her as suffering from psychotic phenomena. Without more, it might have been possible to explain Lynn’s lies about her mobile phone as having been from the fear of Romy having her personal information, and therefore not generalisable to the reliability of her evidence on other issues.
58However, the ultimate disclosure of Lynn’s mobile phone records led to a second line of questioning in cross-examination – this time concerning her description of her symptoms.
59Prior to trial, Lynn made the following statements concerning her symptoms:
(a) on 20 May 2020, she swore an affidavit in reply to Romy’s application for summary judgment, which she confirmed was true and correct in oral evidence.[36] At the time, Romy had raised concerns as to whether Lynn, was fit to manage her affairs in relation to the proceeding. In this affidavit, Lynn relays the views of consultant neuropsychiatrist, Professor Denis Velokoulis, that she was a “medically, psychiatrically and cognitively well young woman with no evidence of any significant defects”.[37] She did not give any other direct evidence in relation to her then current mental health symptoms;
[36] T82, L4-5
[37] JCB 106
(b) on 25 September 2020, a witness statement was prepared for her, which she confirmed was true and correct in oral evidence (except to the extent that it stated her current age).[38] In the affidavit, she focused largely on the historical impacts of Romy’s conduct on her mental health. She does not give specific evidence of any current symptoms, aside form stating, in the penultimate paragraph of her statement, that:
[38] T82, L11-T83, L6
“As a result of [Romy’s] conduct towards me I have been prescribed a lot of medication which has caused terrible health consequences, including gallbladder surgery due to medication use. As a result of the gallbladder operation I suffer pain when eating and now struggle with an eating disorder”;[39]
[39] JCB 141
(c) on 19 October 2020, Lynn was assessed by video link by Dr Serry, a medico-legal psychiatrist retained by her. He recorded a detailed account of her description of her condition:
“She lives with her foster mother and [she] stated that she struggles with virtually all of the domestic duties. She said that she spends most of her day in bed and she said that she does very little else as she does not have energy. She is able to manage her personal hygiene however.
She said that her social and recreational life is virtually non-existent as she said that she is fearful of going out in case she encounters [Romy]. She said that she only tends to leave the home to go to her GP, and to have contact with her eating disorder team.”[40]
[40]Expert Witness Court Book (“EWCB”) 47
(d) and then under the heading “Psychiatric Impact & Progress”:
“She said that there is virtually no joy in her life although she said that when she was studying law and then when she was working in her articles year, she very much enjoyed the work that she was doing.
[Lynn] stated that she has a non-existent libido and she said that intimacy is a very difficult area for her. Further still, she said that she has had amenorrhoea for the last 12 months.
She said that her energy level is extremely low. She described feeling weak and lethargic and she said that everything is an effort.
…
She has never exercised to excess although did previously go to the gym as a form of stress relief. She said that she no longer has the energy to exercise.
…
In addition to feeling depressed, [Lynn] stated that she feels anxious most of the time and she described having daily panic attacks which can last up to hours. She said that she is never calm and is always on edge. She said ‘I’ve lived in fear for years’. [Lynn] stated that her anxiety is invariably worse when out of home and out of her comfort zone and as such, she tries to avoid going out. She said that she is jumpy and easily startled.
….
She described a pattern of ongoing hypervigilance. There are security cameras where she lives, linked to her phone and the TV, and she said that she can spend hours looking at security footage.
At home, she keeps the doors and windows locked and the shades drawn. She said that she will often keep a knife with her.”[41]
[41]EWCB 48-49
(e) on 6 August 2021, a supplementary witness statement was prepared for Lynn, in which she stated:
“My condition is currently affecting me in the following ways:
a. My depression is really bad. I feel miserable constantly;
b. I lack motivation to do things;
c. I have severe anxiety;
d. I am scared to leave my room and the house;
e.I have very poor sleep and have nightmares. That makes me fatigued during the day, but I don't like sleeping during the day when I am home alone;
f. I suffer from panic attacks;
g. I am scared to read the paper and watch TV, worried about further publicity;
h. I have crying bouts;
i. My self-esteem is very low;
j. I spend most days in bed;
k. My memory is poor;
I. My brain does not activate quickly anymore;
m. I struggle with communication;
n. My bone density is really poor as a result of my eating disorder;
o. I struggle walking long distances because of my bone density;
p. I am in constant pain in my joints;
q. I need help with personal hygiene because of my poor bone density and joints, requiring assistance with showering.
r. I am devastated that I cannot get back to work. I studied hard through the difficult times and now I feel like that was for nothing and that I will never be capable of working again.”[42]
[42]JCB 146-147
In evidence-in-chief she confirmed the correctness of this witness statement, with the following clarifications:
(i)sub-paragraph (d) (“I’m scared to leave my room and the house”) was correct in August 2021, when the witness statement was prepared,[43] but:
[43] T83, L29-31
“I’m currently trying to progress with my eating disorder recovery so therefore I’ve been trying to go for walks, trying to improve my anxiety as I really struggle with that. Trying to slowly reconnect and integrate myself with society”;[44]
[44] T83,L31 ꟷ T84, L4
(ii)sub-paragraph (j) (“I spend most days in bed”) – she said that the same was to be said about that statement; and now “I’m trying to improve my anxiety. Do more things to help my overall health. Going for walks”;[45]
[45] T84, L8-11
(iii)sub-paragraph (n) – her bone density was now gradually improving;[46]
[46] T84, L11-15
(iv)sub-paragraph (q) (“I need help with personal hygiene because of my poor bone density and joints, requiring assistance with showering”) – she now did not “need as much help as what [she] was receiving from [her] foster carer, but to be said, some days are better than others with [her] health”.[47]
[47] T84, L16-19
(f) on 20 December 2021, she was again assessed by video link by Dr Serry. He recorded that:
“Since my previous assessment, [Lynn] stated that she has not had any further periods of hospitalisation. She said that she has not worked in any capacity nor has she studied. She said that she spends most of her time in her room in her bed. She said that she occupies herself, watching TV and she said that she rarely leaves her room. She said that she sleeps during the day, having an inverted sleep pattern. She tends to eat her meals in bed.
She will shower every second day but brushes her teeth daily. She tends to spend most of her time in a T-shirt and tracksuit paints, the same clothing that she wears to bed.
She said that she has no social or recreational life. She does not go shopping and if she requires items, she will ask her foster mother to get them for her. She said that the most that she will do is going and sitting outside when encouraged to do so by her foster mother.
She said that she does not really talk with her foster mother about how she feels as she does not want to burden her. [Lynn] stated that she has no contact with her mother or siblings.
Further still, she said that she has no social contact with anyone. She does not speak with others on her phone nor does she tend to use social media.
…
Since my previous assessment, [Lynn] stated that she has continued to struggle psychologically.
She stated that she feels down all of the time, [Lynn] suggesting that if anything, her level of depression had increased given the fact that she has had to deal with lawyers and has had to read about ‘his’ paperwork. She said that it has all taken a toll. She said that when she was involved in the court issues and had to see ‘him’, it scared her, [Lynn] stating that she had become even more depressed and demoralised.
She said that she no longer has any energy or motivation. She said that there is no happiness and no joy in her life. On a visual analogue scale for mood where zero is the worst [Lynn] has felt and 10 the best, she said that she would be 1/10. She said that there is nothing that she looks forward to.
She said that the biggest disappointment for her is a realisation that she cannot go back to work in law, having worked so hard and for so long.”[48]
[48]EWCB 65-67
Further:
“[Lynn] stated that she is not irritable or short-tempered with others. She said that she does not really have anything to do with people other than for her foster mother.”[49]
[49]EWCB 68
(g) On 22 March 2022, a second supplementary witness statement was prepared for Lynn, in which she stated:
“I have high levels of anxiety, which is getting worse. My depression has worsened. My insomnia has also worsened.
I suffer from frequent panic attacks many times throughout the day and night. I am triggered by thinking about [Romy] and what he did to me. The attacks can last from minutes to an hour. I also get attacks, like thinking about [Romy], or what he has done to me, or feeling that he could be watching me.
I am increasingly depressed. I don't want to do anything any more. I don't care about my life.
I feel traumatised. I have flashbacks of what has gone on to me, including of the trauma associated with having me in the public eye and my personal information revealed.
I am going backwards on my eating disorder. I have very limited appetite, and stress makes it worse. I have lost the joy of food and only eat to get over my eating disorder.
I am getting brain fog a lot and find it hard to communicate with others.
Reading about [Romy] for this proceeding makes me feel down.
I have no happiness or joy in my life. I can't think of anything positive in my life now.
I have poor memory. I am distracted, forgetful and have low motivation.
I am too scared to sleep at night, having broken sleep all night, which means I get little sleep during the night and then sleep a lot during the day.
I have very low self-esteem. I have lost confidence in myself. I am angry and disappointed in what I have become.
I think about ending my life now, although I have not acted on it.
I always feel on edge. I am constantly fidgety and do not feel peaceful.
I am focused on my safety and security. I keep windows and doors closed and curtains drawn. I regularly check the security cameras at home trying to feel safe.
I worry that my health will continue to go downhill.
I rarely have anything to do with people, except for my foster mother.
I think constantly about how terrible [Romy] has been to me and what he has done to me and what he has revealed about me and my private life, trying to ruin my life. [Romy] is still going to the media now, triggering my feelings of what he did to me and said about me, and my private information. I feel like it will never stop and I will constantly get these triggers. Even if I hear [Romy’s] name, it triggers me now.
I still suffer nightmares of [Romy].
.I get flashbacks about all the trauma I have been through.
.I am losing my hair again now because of the stress I am under.
Current treatment
I continue to see my GP regularly about my mental health issues.
I would like to get further psychiatric treatment, but cannot afford it.
I otherwise refer to paragraph 24 of my earlier witness statement at Court Book 147.
Current work status
I am not well enough to return to law, and I am devastated about that. I wanted to get into commercial law. I worked so hard for so long to get a law degree. I cannot concentrate now. I am too fragile now. I am too broken now to be able to hold down any job, let alone a job in the law.
Care Claim
I continue to reside with my foster carer.
Because of my ongoing condition, I rely heavily on her to do the cooking, laundry, and cleaning, such as vacuuming and mopping. These are things that I would be able to do myself if it were not for my ill health described above.
My foster carer also provides me with assistance with doing everyday paperwork tasks.
I rarely leave the house or my room.
I believe that my foster carer provides me with about four hours of care during the week while she is working and an additional six to eight hours on weekends.
I have been receiving this level of care from my foster carer since the significant deterioration of my condition in about May 2020, once I was discharged from hospital.
Prior to that, my foster carer was providing me with some care and assistance, but nothing like the level of assistance I now need.”[50]
[50]JSCB 2008-2011, paragraphs [17]-[47]
60In evidence-in-chief, Lynn stated, in relation to paragraph 44, “[a]gain, with my health and recovery I’m trying to go for more walks and overall improve my health”.[51] She otherwise confirmed this statement was true and correct.[52]
[51] T85, L12-14
[52] T85, L15
61In summary, the state of the evidence prior to the commencement of cross-examination was as follows. In her May 2020 affidavit (at a time when her fitness to provide instructions in the proceeding was under challenge), Lynn did not expressly assert any current symptoms, instead relaying and relying upon a neuropsychiatrist’s opinion that she was a “medically, psychiatrically and cognitively well young woman with no evidence of any significant defects”.[53] She also gave evidence that she was able to graduate with a Bachelor of Laws in 2019 and had commenced her practical legal training.[54] By the time of her September 2020 witness statement, she had completed her practical legal training.[55] Her statement did not go into detail on any current symptoms, other than referring to a gallbladder operation and eating disorder.[56] However, by 19 October 2020, she was telling a medico-legal psychiatrist retained to provide a significant injury certificate,[57] and evidence in relation to diagnosis and causation, that she spent most of her day in bed and only tended to leave the house to go to her general practitioner and have contact with her eating-disorder team.[58] In her witness statement of 6 August 2021, she stated (among other things) that she spent most days in bed, struggled walking long distances and was scared to leave her room and the house.[59] When she was assessed again by Dr Serry on 20 December 2021, she reported that she spent most of her time in her room in her bed and that she rarely left her room. She said that she had no social or recreational life and no social contact with anyone. She said she did not speak to others on the phone, nor did she tend to use social media. She said she did not go shopping and that “the most that she will do is going and sitting outside when encouraged to do so by her foster mother”.[60] On 22 March 2022, she stated, in her witness statement, that her high levels of anxiety were getting worse and she was suffering frequent panic attacks, that she rarely had anything to do with anyone other than her foster mother, and that she rarely left the house or her room.[61] Finally, in evidence-in-chief given in May 2022, she asserted that her affidavits and witness statements were true when made, but that she was currently trying to go for walks and improve her anxiety, although she was still struggling.
[53]JCB 106
[54] Ibid
[55] JCB 132
[56] JCB 141
[57]Required to sue for pain and suffering damages for personal injury under Part VBA of the Wrongs Act 1958
[58] JCB 75
[59] JCB 146
[60]EWCB 65
[61] JSCB 2009-2010
62Initially, when she was cross-examined about her efforts to improve her health and go for walks, she claimed that any improvements had only taken place in the previous few months:[62]
[62] T86-87
Q:“And what about in relation to improving your anxiety and going for walks and leaving the house?---
A:Since recently.
Q:How recently?---
A:A few months.
Q:A few months. Is that January, February, December?---
A:From the start of this year.
Q:From the start of this year. And when you say you don’t need as much help from your carer, that’s at 23Q, you made that amendment. What sort of help do you need from your carer?---
A:It varies. Some days my health is better than others, so it would be assistance with hygiene, washing, primarily things like that.
Q:You see, you made your secondary supplementary witness statement in March this year and you didn’t mention any of those things in that statement, did you?---
A:It was intended to still be concurrent with the previous statement.
Q:Can I suggest to you that your alterations today are as a result of the application last Friday that in fact, you have [told] Dr Serry that you can’t get out of bed and you spend most of your days in bed, and that we subpoenaed your phone records and that will show that you have been leaving the home. What do you say about that?---
A:When I spoke to Dr Serry that’s how much condition was at the time. When I said I was bedridden that is how I was at the time I spoke to him, so it’s been years in fact since that meeting with him.
Q:But you haven’t been bedridden since March, have you?---
A:Some days are better than others with my health, so I do have moments where I am still like that, yes.
Q:So on 22 March when you swore this secondary supplementary witness statement, you said ‘I rarely leave my house or my room’, that was incorrect?---
A:No. Rarely is a very broad term, so as I said, some days are better than others with my health, and I’m trying to improve it.”[63]
[63]T86, L25 ꟷ T87, L26
63Finally, Lynn’s phone records were produced by Telstra and she was cross-examined about them. She was also required to produce unredacted bank statements for the period 28 January 2021 to 27 January 2022. Having regard to this evidence, I am satisfied that:
(a) from 1 January 2020 to 21 June 2022, Lynn made a total of 9,773 voice calls, including 1,394 calls to her ex-partner and 3,381 calls to her maternal aunt. This included calls to her ex-partner and aunt in late 2021, at a time she told Dr Serry she had no social contact with anyone and did not speak to others on the phone, nor did she tend to use social media. When cross-examined about the calls to her aunt, Lynn said “I play games with her regularly so we talk a lot”;[64]
(b) from 1 January 2020 to 21 June 2022, Lynn sent 68,216 SMS messages, which is an average of over 2,000 SMS messages per month;
(c) Lynn made calls from a range of locations across Melbourne, including in the vicinity of Melton West, Mt Cooper, Strathmore Heights and Glenroy,[65] in addition to suburbs closer to her home address. When cross-examined about this, she did not deny travelling to these regions of Melbourne, but claimed it was to visit friends or family members for support and to lie “on the couch feeling sad and scared for myself”;[66]
(d) on 19 October 2020, she was assessed by Dr Serry by videoconference for the purposes of his first report, and told him that she spent most of her day in bed and only tended to leave her home to go to her general practitioner and to have contact with her eating-disorder team. That same day, the phone records show that she made a call from the vicinity of Mt Cooper (near Broadmeadows) in the morning, before making a number of texts, and using data from the vicinity of her home;
(e) on 20 December 2021, she was assessed by Dr Serry for a second time by videoconference. She attended this videoconference from her bed.[67] She told Dr Serry that she spent most of her time in her room in her bed. She told Dr Serry that she had no social or recreational life, she does not go shopping and the most that she will do is go and sit outside when encouraged to do so by her foster mother. She also said she had no social contact with anyone and did not speak with others on the phone. On 18 and 19 December 2021, she was recorded as having sent texts from the vicinity of Mt Cooper and Reservoir East. On 20 December 2021 (the day of the assessment), she is recorded as having sent texts from the vicinity of Ardeer South and West;
(f) Lynn also admitted, in cross-examination, that if she is with a friend, she will go grocery shopping with them.[68] This is confirmed by phone records showing messages sent from locations such as Highpoint, and Lynn’s unredacted bank statements showing multiple grocery and shopping-centre purchases; and
(g) on 14 March 2022 (a bit over a week prior to her final witness statement), Lynn sent texts from the vicinity of Glenroy North, Reservoir East and Fawkner West. When cross-examined about these texts, she admitted to visiting a friend in Bundoora.[69]
[64] T518, L5-6
[65]There was no expert evidence in relation to the interpretation and reliability of the location data in the produced records (understandable given their late production). However, no objection was made to their tender, and several key dates and locations were put to Lynn. She either admitted travelling to the vicinity of the recorded location on the relevant date, or did not deny doing so. I accept that the records provide probative evidence of her general location at the date and time shown.
[66] T531, L27-28
[67] T509, L14-17; T223, L5-6
[68] T531, L31 ꟷ T532, L1
[69] T530, L18-20
64Lynn, nevertheless, maintained she had no social life and spent time with a friend or ex-partner to feel safe. “It’s mostly just to make sure that I’m feeling okay and not alone and scared and having panic attacks all the time”.[70] Even if this were the case, it is not consistent with the history she reported to Dr Serry, or the evidence she gave in this proceeding prior to the production of her phone records, of being an essentially bedridden recluse, barely able to leave the house.
[70]T520, L11-13
65Lynn’s evidence about her level of contact with her mother and other members of her maternal family also raised reliability concerns. The background to this evidence is as follows. Romy has persistently contended that Lynn has brought these proceedings against him as a result of the influence of her maternal family. This was one foundation of his contention, made early in the case management of these proceedings, that Lynn lacked capacity to bring these proceedings. Throughout the proceeding, including during the course of the trial, Lynn has responded by denying that she is unduly influenced by her maternal family.
66During oral evidence, Lynn sought to downplay or avoid questions about her level of contact with her maternal family. She demonstrated a marked reluctance to provide specific evidence about the frequency of her contact with members of her maternal family, preferring general terms like “occasionally” or “infrequently”.[71] She also had a tendency to resort to mantras such as “I was a child”[72] or that she was not “involved” in the prosecution of her mother, when asked about her views as to her mother’s innocence. At times when questioning became particularly challenging, she started crying. However, when she was successfully pressed to provide details, contact with her maternal family, and her mother specifically, actually appeared to be quite regular.[73] Lynn is entitled to maintain contact with her maternal family if she chooses to do so, however, given her evidence to the Court and the history reported to Dr Serry, her doing so undermines the reliability of her evidence.
[71] T134, L29-T135, L15; T218, L31-T220, L2
[72] T96, L6
[73] Compare, for example: T135, L4-12; T218, L31 ꟷ T220, L2; T258, L25-27; T259, L8-12; T509, L18-31
67In relation specifically to her contact with her mother:
(a) when cross-examined about whether she told her mother about the counselling session in February 2014:
(i)she initially denied having contact with her mother, saying she was in an “undisclosed placement”;[74]
[74]T130, L3-4
(ii)she was then shown a contemporaneous case note[75] which recorded she had stated that she had mentioned a meeting with Romy to her mother while on a visit. She started crying. After being given a few moments to compose herself, she said that she would never speak directly with her mother, but would speak in the presence of a case manager;[76]
[75] JSCB 1293
[76]T131, L19-27
(iii)when questioned further, she admitted to having spoken to her mother privately while in prison without the caseworker present, although maintained she had not spoken privately with her mother about the counselling session;[77] and
(iv)ultimately, she admitted that she discussed the counselling session with her mother, but claimed that “I didn’t disclose any confidential information. All I said it was in a way to rekindle but it never happened and that was the extent of the conversation”.[78] She also maintained that she could recall what she told her mother on this occasion because “it was a significant event”[79] – accordingly, her initial denial cannot have stemmed from a lack of recollection;
(b) in relation to her current level of contact with her mother:
(i)she told Dr Serry, in the assessment on 20 December 2021,[80] that she had no contact with her mother and limited contact with her maternal family;
(ii)in cross-examination, she initially said that she would occasionally speak to her mother on the phone to see how she was going, but that was it, and resisted providing any more specificity as to what she meant by “occasionally”;[81]
(iii)when specifically asked, she said that the last time she saw her mother was “[q]uite a few weeks ago”, on an occasion when she went out for coffee for her birthday at a shopping centre. She said that it was with just her mother and her at this meeting;[82] and
(iv)she subsequently admitted that she had gone out for lunch with her mother and others for her birthday on 5 March 2022, and that there were seven people in total in attendance.[83] When asked why she had previously said she had gone out for coffee at a shopping centre, she said “[w]e had a coffee as well”.[84]
[77]T132, L7-18
[78]T132, L22-26
[79]T134, L24-25
[80] JSCB, 1111
[81]T135, L4-20
[82]T135, L22 – T136, L3
[83]T220, L3-9
[84]T221, L31
68The consensus of the medical expert opinion is that Lynn is mentally very unwell. On any view, she has experienced extraordinary trauma at a young age. In this context, the Court has, throughout, endeavoured to deal with her evidence as compassionately as is possible within the bounds of fairness. However, I was left with the distinct impression that many of the answers Lynn gave to questions were made up as she went along. Those answers shifted according to what best suited her case at the time and what was likely to be shown by the documents then in the possession of, or shortly to be obtained by, Romy. These shifts cannot be explained and confined to untruths she thought necessary out of safety concerns.
69In all the circumstances, I have concluded that Lynn’s evidence is not sufficiently reliable to be accepted.
Reliability of Romy’s evidence
70Romy’s evidence must also be viewed with compassion, given the intense trauma of having discovered in 2010 that his wife had arranged for him to be murdered; and having suffered the ongoing trauma of litigation which still, over a decade later, is ongoing. However, he too, was not an impressive witness.
71Romy was prone to bouts of loud, performative crying in the courtroom, particularly during the course of Lynn’s evidence and during the course of his evidence. He made grandiose declarations and speeches, focused on portraying himself as working selflessly for the victims of crime, and was generally unresponsive to the questions asked of him. His evidence was self-serving and melodramatic. It seemed more based on what he believed he would have done given his narrative, rather than genuine recollection.
72In particular, he sought to project an image of himself as a caring parent whose primary concern was protection of his children. However, although his express words spoke of his love for Lynn; his understanding that she was also a victim; and his desire that she have peace,[85] his countenance betrayed a depth of anger towards her, which may well be understandable in the context, but was inconsistent with his express words.
[85] T395, L1-2; T396, L11-16; T397, L20-27; T398, L1-8
73Thus, for example:
(a) on the one hand, he talked of pushing to give Lynn peace,[86] on the other, he brought proceedings in the County Court and named her as joint plaintiff,[87] and invited a journalist to one of the hearings;[88]
[86] T395, L1-2; T397, L23-26
[87] T397, L28 ꟷ T398, L8
[88] JCB 1935
(b) he said he was “disgusted” that Lynn was put on television by her maternal family as a child[89] and claimed that he did not want his children exposed to any publicity;[90] and was acutely aware of the harm any publicity could cause Lynn.[91] However, he apparently could see no wrong in answering questions put to him by journalists about Lynn and his relationship with her; providing the co-author of a book about his life with information, photographs and personal cards concerning the children; and abrogating to publishers’ lawyers the question of whether publication would harm his children;[92]
[89]T396, L31-T397, L3-3
[90] T400, L13-14
[91] T457, L30 ꟷ T458, L1
[92] T455, L18-20
(c) when it suited him, he relied upon the existence of an IVO (and complaints by Lynn that he had breached it). Thus, he relied upon it to explain why he did not repay the money he took from Lynn’s trust account;[93] why he did not seek to enforce the judgment he had obtained in Lynn’s favour in the CC proceeding[94] and why he instructed his lawyer not to respond to enquiries from the Supreme Court concerning funds in Court.[95] He maintained he had disclosed the existence of the IVO to journalists,[96] author Megan Norris,[97] and this court.[98] On the other hand, he commenced proceedings in Lynn’s name in this court when the IVO was in place, and could not see a difficulty with sending a message to Lynn via a journalist;[99] when asked at Dianne’s committal, on 15 March 2011, whether he had ever been placed on an IVO, he refers to an IVO granted back in 2004 and not the first IVO, granted on 30 March 2010;[100] and when asked why he disclosed details of the counselling session to Carolyn Webb, he claimed to not have thought about the IVO at the time;[101]
[93] T419, L16-30; T488, L5-8
[94] T400, L17-23; T469, L9-10
[95] T401, L6-20
[96] T450, L15-18; T451, L4-9
[97] T399, L28-30; T421, L1-2; T421, L10-11; T444, L27-29; T445, L2-6
[98] T398, L14-22; T473, L22-27
[99] T422, L26 ꟷ T424, L3; T462, L16-27
[100]T442, L7-15; T422, L20-22
[101] T439, L18-23
(d) his evidence in relation to provision of the IVO also shifted. For example, at one stage he said he gave Ms Norris a copy of the IVO.[102] At another, he said it was annexed to the Family Court documents and he remembered “telling her there was an intervention order in place”;[103]
[102] T421, L1-2
[103] T444, L27 ꟷ T445, L6. For further accounts, see T450, L15-18; T450, L20-23; T451, L4-9
(e) repeatedly during his cross-examination, he claimed to have told Megan Norris, and the various journalists he spoke to, not to mention the children at all.[104] Yet Romy provided Megan Norris with details about the children, access to court transcripts, Family Court documents and personal cards. He either directly provided photographs of the children, or acquiesced in the provision of photographs of the children. He was provided with a draft of the book which referred to Lynn and the other children. He did nothing to object or complain when these details, which he had provided to journalists, were published.[105] He noted, in relation to Megan Norris, that “[s]he did say she was very kind and cautious to [Lynn] in writing the book”.[106] This evidence is not consistent with him directing the journalists and Ms Norris not to mention his children at all;
[104] T399, L29; T400, L13-14; T430, L7-19; T431, L15-17; T433, L1-3; T445, L30-31; T448, L3-7
[105] T432, L1 ꟷ T433, L29
[106] T421, L15-17
(f) further, his assertion that all he did was innocently answer questions about his daughter and nothing more,[107] was disingenuous at best. He knew he was being interviewed for the purposes of publication. Self-evidently, any answers he gave to questions by journalists and a professional author writing his story were liable to be published. More likely he appreciated that talking about his estrangement from Lynn was likely to attract public interest to his story and he saw nothing wrong with information about that estrangement being published, at his instigation:
Q:“… but you don’t protest?---
A:I didn’t think it was a disaster. She asked me a question about my daughter and how the relationship is going and I answered ‘It’s not going well.’”;[108]
and:
“And I have always said she is estranged from me, that was common knowledge from day one. I mean, I think there was a lot of interest of how she could turn blank to me. … .”;[109]
[107] For example,T439, L7-14
[108] T433, L25-29
[109]T455, L28-31
(g) I accept that Romy placed some limits on his disclosures concerning Lynn and her siblings, but not to the extent that he claimed during the course of cross-examination. Rather, as he at one point (I think honestly) proclaimed during the course of cross-examination, his self-imposed limit was “I never denigrated any of the children, I never spoke about the sex allegations”.[110] He did, however, provide information about the children (including Lynn) to journalists and Megan Norris, with the knowledge and intention that this would result in the information being published. I find his repeated evidence that there should be no mention of the children had no factual foundation. This draws into question the reliability of his evidence more generally.
[110]T431, L19-20
74In all the circumstances, I have concluded that Romy’s evidence is unreliable and I ought not accept it unless corroborated, or there is some other reason to suggest that it is particularly reliable. To the extent of conflict, I prefer the evidence of the non-party witnesses who gave evidence at trial to his evidence.
The term deposit claims
The parties’ submissions
75Lynn claimed that she had causes of action for money had and received, or breach of fiduciary duty with respect to the money which Romy had withdrawn from the Commonwealth Bank term deposit in her name on 25 February 2010. She sought an order for repayment of the money taken, together with compound interest at 8 per cent per annum from 26 February 2010.
“1.No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, not to unlawful attacks on his honour and reputation.
… .”
311Thus, the centrality of the value of privacy has been emphasised in recent High Court decisions, including Clubb v Edwards,[353] in which Kiefel CJ, Bell and Keane JJ said:
“Aharon Barak, a former President for the Supreme Court of Israel, writing extrajudicially, said:
‘Most central of all human rights is the right to dignity. It is the source from which all other human rights are derived. Dignity unites the other human rights into a whole.’
…
[353](2019) 267 CLR 171 (“Clubb”); See also Lenah Game Meats; Smethurst v Commissioner of Police (2020) 272 CLR 177at 200, paragraph [24]
… As Barak said, ‘[h]uman dignity regards a human being as an end, not as a means to achieve the ends of others’. Within the present constitutional context, the protection of the dignity of the people of the Commonwealth, whose political sovereignty is the basis of the implied freedom, is a purpose readily seen to be compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. … .”[354]
[354] Clubb at paragraphs [50]-[51]
312Sixth, there is an increasingly urgent need to protect privacy in the world of telephoto lenses, deepfakes, social media and clickbait. I will return to this issue later in these reasons.
313Seventh, one argument that has been made against the creation of a tort of invasion of privacy is that it is a matter that should be left to the legislature. Although this may be viewed as standing in the way of the creation of a tort of invasion of privacy, the argument does not apply with the same force to the recognition of a tort of invasion of privacy.
314Finally, an action for invasion of privacy protects a distinct interest, not protected by, or conflicting with, existing torts outside breach of confidence. Thus:
(a) the torts of defamation and injurious falsehood protect reputation against false statements;
(b) the tort of negligence protects breaches of duty of care for one another and provides damages for mental distress in only limited circumstances; and
(c) equitable actions outside breach of confidence have, as their focus, protection of proprietary interests or the sanctity of relationships.
315In conclusion, it should be recognised that an action for invasion of privacy forms part of the common law of Australia. Although historically this action has been housed under the overarching doctrine of breach of confidence, it is better viewed as separate and distinct from the action for breach of confidence. This does not amount to the creation of a tort, but rather a recognition of the bifurcation[355] which has developed in relation to the action known as breach of confidence, between actions which at their heart protect confidential trade information; and actions (available only to natural persons) which at their heart protect human dignity in privacy. It is proposed to elucidate that bifurcation, by renaming the latter category as an action for invasion of privacy.
[355]I note that I do not mean to suggest by the use of the word “bifurcation” that there can never be an overlap – a single fact situation may give rise to a complaint both that valuable trade information has been appropriated and that privacy has been invaded, for example where a celebrity seeks to trade on their private information.
316With greatest respect for Senior Judge Skoien, I prefer not to attempt to define the essential elements of this action. There is much merit in Callinan J’s caution that:
“The recognition of a tort of invasion of privacy as part of the common law of Australia does not involve acceptance of all, or indeed any of the jurisprudence of the United States which is complicated by the First Amendment. There is good reason for not importing into this country all of the North American law particularly because of the substantial differences in our political and constitutional history. Any principles for an Australian tort of privacy would need to be worked out on a case by case basis in a distinctly Australian context.”[356]
[356] Lenah Game Meats at 328, paragraph [332]
317I would add that the rationale underlying this caution applies equally to the importation of the essential elements of the tort in the United Kingdom, which was developed in the particular context of the Human Rights Act 1998 (UK).[357]
[357] Cf the indicia relied upon by Judge Hampel in Doe v ABC
318However, relief should continue to be available, at a minimum, in the circumstances where it has been available in the past – that is, the making public of private matters in circumstances that a reasonable person, standing in the shoes of the claimant, would regard as highly offensive.[358]
[358]Lenah Game Meats at 226, per Gleeson CJ; Hosking at paragraph [117]; Wilson at paragraph [56]
319I think it also preferable to leave for others the question of the availability of defences to such a cause of action, including defences which aim to protect other important rights, such as the constitutional right to political free speech. Clearly, any development in this cause of action “would need itself to follow a path consistent with the constitutional guarantee of freedom of political communication”.[359] This may require careful attention to be paid to available defences. However, there has been no suggestion that such a defence would arise in the present case.
[359] Farm Transparency at paragraph [90] (per Gageler J)
320I also respectfully decline to express a concluded view on the question of whether the action for invasion of privacy is better viewed as an equitable or tortious cause of action. There is some force in the view that this action, with its locus being wrong to the person and mental harm, rather than property and relationships, more naturally belongs in the law of tort. However, since Giller, damages for mental distress have been available in equity for breach of confidence. In common law, damages for distress are available in the analogous tort of defamation. Whether this action is homed in tort or equity, Lynn would be entitled to the relief she seeks. Accordingly, it is not necessary for me decide this issue.
Application to the facts of the present case
321What is necessary for me to decide is whether the action for invasion of privacy would respond to the facts of the present case, and particularly to item 3, the statement that Lynn had apologised to Romy. Herein lies the substance in the form, as it were. The separating out, and renaming of, that part of the action of breach of confidence, which is exclusively concerned with individual privacy and therefore human dignity, enables greater focus to be placed on the values and rights underpinning that cause of action, without doing etymological violence to the words “breach of confidence” and “confidential information”.
322This, then, permits one incremental step to be taken. That is, the recognition that an actionable breach of privacy can occur even though the Court is not satisfied that there has been a disclosure of factually-correct “information”. Such an incremental step is not without precedent. Cases concerning images or footage[360] have always fitted awkwardly within the rubric of confidential information. Further, in Campbell, the House of Lords seemed unconcerned by the fact that much of the “information” disclosed as to frequency and duration of treatment and as to whether Ms Campbell was coming or going, was inaccurate. Of far greater concern to the majority was the impact of the material published on Ms Campbell’s privacy and dignity and treatment for drug addiction.
[360] For example, Strange, Campbell and Wilson
323Extending the cause of action in this manner follows naturally from an understanding of the cause of action as based in protection of privacy and human dignity, rather than a quasi-proprietorial understanding of “information” as having economic value and therefore being worthy of protection. As the extracts from academic writings above demonstrate, the concern of the action for invasion of privacy is not so much protecting private information, but protecting a private sphere within which human dignity and autonomy can be furthered. To provide one more pertinent quote from the academic writing:
“… Privacy is a form of opacity, and opacity has its values. We need more shades and more blinds and more virtual curtains. Someday, perhaps, we will look back with nostalgia on a society that still believed opacity was possible and was shocked to discover what happens when it is not.”[361]
[361]Rosen J, The Unwanted Gaze: The Destruction of Privacy in America (1st ed, Random House Inc, 2000); extracted by Callinan J in Lenah Game Meats at 324, paragraph [322].
324This quote foreshadows another important rationale for extending the action for invasion of privacy in this manner. The world in which we now find ourselves is one of deepfakes, including deepfake pornography; a decline in market share of big media; and the pervasive, “democratising” force of social media. To establish their privacy has been invaded, is a plaintiff to be required to prove that a sex tape is “real”? Must a plaintiff suing because a viral social media post is written concerning their sexual preferences, first establish, by admissible evidence, their sexuality? If the social media post is false, or the video a fake, is a plaintiff’s only recourse the law of defamation? What if the matters disclosed are intensely private, but not defamatory? If the action is so limited, an aggrieved person would effectively be placed into a catch 22: to obtain relief they would need to establish the truth of matters said about them, thereby exposing their intimate life even further. Meanwhile, the defendant who makes inaccurate public statements about intensely private matters is in a better legal position (and probably has more “clicks”) than the defendant who properly fact checks and makes only accurate statements.
325Warren and Brandeis put it this way, back in 1890:
“The truth of the matter published does not afford a defence. Obviously this branch of the law should have no concern with the truth of falsehood of the matters published. It is not for injury to the individual’s character that redress or prevention is sought, but for injury to the right of privacy. For the former, the law of slander and libel provides perhaps a sufficient safeguard. The latter implies the right not merely to prevent inaccurate portrayal of private life, but to prevent its being depicted at all.”[362]
[362]Warren SD & Brandeis L, “The Right to Privacy” (1890) 4(5) Harvard Law Review 193 at 193 at 218
326As Tipping J said more recently in Hosking:
“… Privacy is potentially a very wide concept; but, for present purposes, it can be described as the right to have people leave you alone if you do not want some aspect of your private life to become public property. … .
…It is of the essence of the dignity and personal autonomy and wellbeing of all human beings that some aspects of their lives should be able to remain private if they so wish. … .”[363]
[363] At 57-8, paragraphs [238]-[239]
327And, in “A Common Law Tort of Interference with Privacy for Australia: Reaffirming ABC v Lenah Game Meats”:
“Another upshot of the scholarship is that the normative demand for privacy protection in law should not artificially be limited to protection of informational privacy, separately from protection of physical privacy: if there is a normative basis for privacy protection, it underpins both constructions of privacy. The concerns of dignity, autonomy, liberty, psychological well-being and security, intimacy, intellectual development, and social value of privacy, all require adequate protection of both informational and physical activity.”[364]
[364] Gligorijevic J, (2021) UNSW Law Journal, Vol 44, No 2, at 687
328If privacy is understood as a barrier or shield around a person’s private domain, rather than a quasi-proprietorial right over particular information,[365] it is apparent that invasion of privacy does not depend on any requirement that the information disclosed to the public be either true or false – the nub of the harm done is not what was said, but that the private sphere was made public; and the dignity of the person violated.
[365]Compare Douglas, where Michael Douglas and Catherine Zeta-Jones could be viewed as seeking to protect their right to monetise photos of their wedding.
329Further, extending the right to relief in this manner does not unduly threaten the implied constitutional protection of freedom of political communication, or other important common law rights such as freedom of speech. If a right of privacy exists to prevent true publications about one’s private sphere, it can scarcely be an impermissible infringement on free speech to allow a cause of action where untrue publications concerning a person’s private sphere are made.
330I have concluded that it should be recognised that a distinct action for invasion of privacy forms part of the common law. The underlying principle to be protected by this cause of action is privacy and the human dignity that is associated with the maintenance of privacy. When one considers privacy as not so much protecting specific information, but rather as maintaining opacity, or a private sphere, it follows naturally that a plaintiff ought not be required to prove that the information disclosed concerning their private sphere was, in fact, true. There is nothing in the underlying policy of a tort of invasion of privacy which requires that this be an element. It is but a slight, incremental, development to say that it does not.
331Turning back to item 3. Romy purported to disclose the contents of an email written by his estranged and highly vulnerable daughter, and addressed solely to him. His disclosure was to a journalist in circumstances where he must have known that what he said was likely to be published in newspapers of wide circulation. Lynn’s email was frank and highly personal and focused on her desire for a relationship with her siblings. It was incontrovertibly within Lynn’s private sphere. It matters not that Romy incorrectly interpreted and disclosed the substance of Lynn’s communication. If anything, that increased the harm to Lynn, as an apology may be interpreted as an admission of wrongdoing and the only way for Lynn to counter the inaccuracy would be to engage with the press and disclose more of the email. A reasonable person in Lynn’s shoes would have found the disclosure (or purported disclosure) of Lynn’s private email to be highly offensive. I am satisfied that Lynn has a cause of action for damages for invasion of privacy.
332For completeness, I do not consider that the recognition of an action for invasion of privacy extends the availability of relief beyond the items which I have found give rise to a cause of action in breach of confidence, with the addition of item 3. I acknowledge the distress experienced by Lynn at having Romy say anything about her in public. However, in view of the constraints that an action for invasion of privacy may place on other important common law rights, such as free speech and autonomy of action, an action for invasion of privacy must be carefully limited. One must not forget that this was not only Lynn’s story, it was also Romy’s. A significant part of that story was his estrangement from Lynn. It is only where he has transgressed and exposed to the public the plainly private sphere of Lynn (that is, private father/daughter conversations, the counselling meeting and her email to him) that I find there to have been an actionable invasion of privacy.
Assessment of damages
In relation to specific claims proven
333I have found that Lynn has a claim for breach of confidence in relation to disclosure of the following information:
(a) information conveyed to Carolyn Webb and published in The Age and SMH to the effect that there was a counselling meeting at which Lynn said she blamed Romy for the imprisonment of her mother (limited version of item 1);
(b) information conveyed to Carolyn Webb and published in the SMH to the effect that there was a counselling meeting at which Lynn said she wished Romy were dead (limited version of item 2);
(c) information conveyed to Megan Norris and published in the Love you to Death book to the effect that:
(i)Lynn told Romy “Mum’s in jail. You have to help her get out” and “I want everything to be the way it was before. You have to do something!” (item 6);
(ii)Lynn rang Romy “in tears, her tone accusing. ‘I can’t believe you just did that,’ she sobbed” (item 9); and
(iii)Lynn said that she “believed [Romy] could free her mother from prison” (item 12).
334Lynn is not required to establish that she has suffered a diagnosable psychiatric illness as a result of breach of confidence.[366]
[366]Giller
335In evidence, Lynn said that the book impacted her VCE results and she was not able to get straight into a law degree, so commenced a bachelor of legal services degree;[367] although she was admitted to study law eighteen months later, and has since graduated. She has described her constant anxiety that she would be connected to Romy and the stabbing. She said that, in May 2020, she was shown a copy of the Love you to Death book by a co-worker who said, “‘[d]id you know you are in this?’”[368] Shortly afterwards, she said she was admitted to hospital as an inpatient suffering from re-feeding syndrome. She said that she had lost over 100 kilograms over two years and needed to be watched twenty-four hours a day to ensure she did not suffer a heart attack. She said she remained an inpatient until July 2020,[369] has not worked since, and is in receipt of a disability pension.[370] On the other hand, she has also said, in relation to the Love you to Death book, “I have not read the book or the extracts that refer to me as I am anxious that to do so would injure me”.[371]
[367] Supplementary statement of plaintiff, dated 6 August 2021, JCB 144, paragraph [9]
[368] Supplementary statement of plaintiff, dated 6 August 2021, JCB 145, paragraph [17]
[369] Supplementary statement of plaintiff, dated 6 August 2021, JCB 146, paragraph [20]
[370] Supplementary statement of plaintiff, dated 6 August 2021, JCB 146, paragraph [21]
[371] Supplementary statement of plaintiff, dated 6 August 2021, JCB 143, paragraph [6]
336I am, here, concerned with the impact of specific breaches of confidence rather than the existence of the relevant publications as a whole. There was no evidence from Lynn that the fact that Romy had disclosed conversations between them, specifically, was distressing or traumatising for her.
337In any event, I have found that Lynn’s evidence was not sufficiently reliable to be accepted.
338There is contemporaneous evidence that the Love you to Death book impacted Lynn. On 6 August 2014, her psychiatrist, Dr Driscoll, wrote to the Victoria Police about what she described as the devastating impact of the book and surrounding publicity by Romy.[372] Lynn also contacted the Victoria Police on 7 August 2014 to complain, describing Romy’s actions as “a constant distress”.[373] However, given Lynn had not at that time read the book, it cannot have been the specific items which amounted to a breach of confidence which caused this distress. More likely, it was the mere fact that Romy was speaking publicly, and mentioning her.
[372] JCB 270; supplementary statement of plaintiff, dated 6 August 2021, JCB 143-4, paragraph [9]
[373] JCB 271
339I accept that the specific breaches of confidence impacted Lynn, but find that her description of their lasting and repeated impact was overblown. In particular, I do not accept that there was a causal link between her being shown the Love you to Death book and her subsequent admission into hospital, gallbladder surgery and eating disorder. Her own statements on this matter are not reliable (even if this could be proven by lay evidence) and there is no expert evidence to this effect.
340Further, any distress she experienced is more likely to be attributable to the general fact that the defendant was speaking about her, rather than the specific items which I have held to be the subject of the breach of confidence claim.
341Doing the best I can, I assess damages for these breaches at $10,000. I would add to this sum interest under s60 of the Supreme CourtAct from the date of commencement of the proceeding, at the penalty interest rate.
342I have found that Lynn is also entitled to damages for the tort of invasion of privacy with respect to item 3, the apology in the assessment of damages. As with breach of confidence, I find that there is no necessity to prove a diagnosable psychiatric illness to recover damages for this cause of action.
343Lynn has said “[f]or [Romy] to then take on the image of a caring father in the media upsets me so much that sometimes I just wanted to die”.[374] I think it likely there is a significant element of melodrama to this statement. Nevertheless, Romy stating that she had apologised to him, goes directly to this field of pain. It was likely to be interpreted by at least some readers as an acknowledgment by Lynn that she was the wrongdoer in the relationship. The only way to correct this impression would have been for Lynn to herself speak to the press, thus exposing her private sphere to even more publicity. Given this, it was a statement which was likely to be particularly distressing to Lynn. Accordingly, I assess damages for invasion of privacy at $30,000.
[374] JCB 140
In relation to all Romy’s post-stabbing conduct
344For completeness, I consider the damages I would have awarded if I were wrong to reject Lynn’s claims for breach of statutory duty and negligence, and to limit her claim to breach of confidence and invasion of privacy to specific items. Although it is difficult to assess the damages that would follow in this hypothetical situation, without knowing the extent of the breaches which are proven nor the nature of the causes of action established, I will assume that Romy would then become liable for any detrimental impact on Lynn caused by the Marie Claire article, the SMH article, The Age article, the Love you to Death book and the Ch 7 Sunday Night program.
345There is no doubt Lynn genuinely believed all her mental health issues were attributable to Romy. She said, in cross-examination, “[a]ll my stress and mental health issues mostly stem from his conduct towards me, yes”.[375] In her written evidence she explains:
“After the stabbing I was bullied at school for years. I accept that my peers and teachers may have known who I was through the media coverage of my mother’s trial. However, each time [Romy] spoke to the media and referred to our relationship it drew attention to me at school and the bullying would escalate. Commonly, my peers would say to me: ‘you are a murderer just like your mother’. I would be pushed down the stairs and have textbooks and food thrown at me. My peers would throw my belongings on the floor and then flip my desk in front of me.”[376]
[375]T211, T19-21; see also T233, L22-27
[376] Statement of plaintiff, dated 25 September 2020, JCB138, paragraph [31]
346She says she attempted suicide several times because of exposure to media by Romy:
“… When he talked about me in the media I wanted to self-harm … Having to sit by and have [Romy] sell his story and bring me into it ‘using me’ made me very unwell.”[377]
[377] Statement of plaintiff, dated 25 September 2020, JCB139, paragraph [35]
347The symptoms she describes in her supplementary and further supplementary statement provide a devastating picture of incapacity, all of which she attributes to Romy.
348However, she is not an expert witness. Further, I have found her evidence to be not sufficiently reliable to be accepted.
349The parties each called an expert psychiatrist to give evidence in relation to causation. Lynn relied upon Dr Serry. He assessed Lynn twice and wrote three reports.
350Romy relied upon Associate Professor Doherty. He wrote three reports on the basis of a review of the documents. He then assessed Lynn. Although he did not write a review on the basis of this assessment, he stated in oral evidence that it had not changed his views.
351I accept the views of Dr Serry and Associate Professor Doherty in relation to the severity of Lynn’s psychiatric condition. Both were of the view that she had a complex presentation and a guarded and unfavourable presentation. Both would diagnose her with chronic PTSD, chronic major depression and an eating disorder not otherwise specified. Associate Professor Doherty would have added a personality disorder with borderline features and psychotic phenomena. Although Dr Serry did not directly accept this diagnosis, he said he had “no major difficulties” with accepting Lynn had a personality dysfunction of a borderline type.[378]
[378]T282, L1-10
352However, I have significant concerns about the reliability of the expert opinions of both psychiatrists in relation to causation. First, I note that determining questions of legal causation, although often required of an expert medical witness, is not necessarily within the usual diagnostic work of a medical practitioner. In the context of psychiatric injury, it typically requires a complex combination of factual findings (what actually happened); history taking (how did the plaintiff say they were impacted) and objective observations. In relation to factual findings, this is the role of the Court, albeit somewhat inconveniently performed after the relevant opinion is provided. In relation to objective observations and the reliability of any history given, the strength of any conclusions drawn on the basis of one or two zoom conferences may be queried.
353In relation to Dr Serry in particular, although he ultimately ascribed 33 per cent of Lynn’s ongoing psychological harm to Romy, the course of his reports exhibits a marked reluctance to ascribe any specific causal link between what he terms Romy’s “post-stabbing conduct”. Thus, in his first report he provided an opinion in relation to the impact of pre-stabbing events on Lynn’s condition:
“[Lynn] in my opinion has a chronic PTSD, chronic major depression with anxious features and with features of panic, and an eating disorder, not otherwise specified.
I am of the opinion that [Lynn’s] condition arose primarily as a result of the sustained adverse developmental experiences she was exposed to up until about the age of 13.”[379]
[379]EWCB 55
354He was then asked to provide a supplementary report. He opined that “[Romy’s] conduct post-stabbing” had an impact, but described that impact in general terms:
“I am of the opinion that there has been a further and not insignificant contribution to [Lynn] conditions as diagnosed, by [Romy’s] conduct post-stabbing.
The experiences of [Lynn] post-stabbing have in my opinion reinforced and exacerbated the already present distressing pattern of symptoms.”[380]
[380]EWCB 59
355Finally, he was asked to provide a further supplementary report. For the first time, he attributed a specific figure to the impact of Romy’s post-stabbing conduct:
“Apportionment is clearly difficult in a case such as this given the complexities. My best estimate is that approximately one-third (33%) of [Lynn’s] injuries relate to her claim against [Romy], post stabbing.
You have asked for my opinion in relation to why the ‘post stabbing’ proportion is apportioned at one third.
[Lynn] is a particularly vulnerable individual given the nature of the trauma that she was exposed to.
In individuals with a history of trauma, re-exposure to reminders or triggers of the trauma tend to be a central aspect of the symptom profile. [Lynn] in my opinion has tried to shield herself from any contemporaneous connection with what had occurred to her during her developmental years.
The revelation of confidential information and by extension, information with the media/public domain, has in my opinion significantly contributed to [Lynn’s] ongoing level of psychological distress.”[381]
[381]EWCB 61
356Dr Serry maintained, in cross-examination, the validity of his estimate. However, it was apparent that it was more a “best guess” than anything based on a concrete path of diagnostic reasoning. This, in and of itself, may not preclude reliance on his opinion. The assessment of damages, once breach has been established, can be a broadbrush process. However, it has relevance to the reliability of his opinion.
357There were further concerns in relation to the reliability and applicability of Dr Serry’s opinion.
358First, Dr Serry’s opinion was significantly based on his acceptance of Lynn’s description of her history and her current symptoms. I have found that Lynn’s evidence is not sufficiently reliable to be accepted. Further, I have specifically found that statements she made to Dr Serry in relation to her then current symptoms were incorrect. This directly undermines the reliability of the opinions he has expressed. Thus Dr Serry agreed, in cross-examination, that he formed the view that, in October 2020, Lynn spent almost all of her time in her room, and most of that time in bed, and if this was not correct it may change his opinion.[382]
[382] See T342 ꟷ T343 and T348
359Second, it was apparent that Lynn also understated the extent to which she had ongoing conduct with her maternal family.[383] This may have impacted Dr Serry’s rejection of Associate Professor Doherty’s view that the primary cause for Lynn’s condition was the behaviour of her maternal family.
[383]T344, L19-26
360Third, Dr Serry, throughout, used the broad term “[Romy’s] post-stabbing conduct”. It was apparent from Dr Serry’s cross-examination that he was including within “post-stabbing conduct” Dr Serry much more than the media publications and, indeed, that the media publications were not even referred to in his first assessment:
“So from memory, there were descriptions of attempts to contact her to, I think, go to the school where she was at, and issues of that like, and also although I didn’t obtain a history of this in my first assessment, in my second assessment there was reference to issues in the media. Those were primarily the issues which I was referring to.”[384]
[384]T294, L17-23
361Dr Serry’s recollection that Lynn described “post-stabbing conduct” which encompassed much more than media publications is consistent with Lynn’s evidence in her statement dated 25 September 2020. In that statement (among other things) she refers to stalking, taking photographs of her, screaming at her, “poisoning” her siblings against her, and driving past her foster home.[385] For the avoidance of doubt, I am not satisfied on the evidence that any of these events took place and (in any event) they are not within the scope of any claim for damages made in this proceeding. I merely mention is as corroborating Dr Serry’s account that he was told of post-stabbing conduct that extended beyond media publications.
[385] Statement of plaintiff, dated 25 September 2020, JCB 134-135, paragraph [39].
362Associate Professor Doherty was asked to provide a report on the basis of a review of the documents only, without any direct assessment of Lynn. On the basis of that review, he provided a report dated 17 December 2021, in which he concluded that:
(a) “there is no material contribution made by the information about her in the media following the stabbing to the development, maintenance and persistence of her psychological problems and psychiatric conditions”;[386] and
(b) “There is a significant contribution made by the actions of the maternal family that have contributed to the psychological problems and diagnosable psychiatric conditions of [Lynn].”[387]
[386] EWCB 96
[387] Ibid
363I find it extraordinary that such a conclusion could be reached in this “complex case” on the basis of a desktop review alone. Although Associate Professor Doherty subsequently confirmed his opinion after assessing Lynn, having gone into writing on his opinion solely on the basis of a desktop review, there is a risk that any subsequent opinion given after assessment would be influenced by his earlier opinion. Further, it is apparent from his report that, in drawing this conclusion, Associate Professor Doherty made factual assumptions about the accuracy of matters in the documents (for example that her claims of sexual abuse were not substantiated; and as to what he termed “the actions of the maternal family”). Those factual assumptions may well be correct, but have not been proven in evidence.
364I am left without reliable evidence as to causation in support of Lynn’s claim. I note that the person best placed to give evidence in relation to causation was Dr Driscoll, Lynn’s treating psychiatrist, when each of these publications were made. She was not called to give evidence in this proceeding by Lynn and no explanation was given for the failure to do so.
365Lynn’s carer was in court for much of the trial. She could also have given significant relevant evidence in relation to Lynn’s symptoms. However, I accept that given Lynn’s fragile mental state, and her need for her carer’s support in court whenever possible, there is a good reason why she did not do so.
366However, there were also no other lay witnesses called to give evidence to corroborate Lynn’s self-reported symptoms and the timing of those symptoms (despite her giving evidence of contact with friends and family members). No explanation was given for this.
367I am entitled to assume that the evidence of any such witnesses (other than Lynn’s carer) would not have assisted Lynn.
368I have taken into account the objective evidence of timing of symptoms, particularly Lynn’s suicidal behaviour after reading the Marie Claire article. However, I am not prepared to infer from the mere temporal link, that this article materially contributed to an aggravation of her pre-existing psychiatric illness. Lynn engaged in self-harming behaviour on other occasions, both before and after this incident. The incident may have aggravated her pre-existing psychiatric illness. But her behaviour may also have been due to a manifestation of a pre-existing borderline personality disorder.[388] I am not satisfied on the balance of probabilities that the incident caused an aggravation of her pre-existing psychiatric illness.
[388] See Professor Doherty’s opinion, T313, L2-T314, L2
369In all the circumstances, I am not satisfied that Lynn has suffered a recognised psychiatric illness (or, rather, aggravation of an existing recognised psychiatric illness) as a result of the Marie Claire article, The Age article, the SMH article, the Ch 7 Sunday Night program and the Love you to Death book. To the extent that this is a requirement for recovery of damages (as it is, for example, for the tort of negligence),[389] I would not have awarded her damages.
[389] See s75 of the Wrongs Act
370I am also not satisfied that Lynn is entitled to any special damages for medical expenses or loss of income.
371However, I am satisfied Lynn has suffered distress, agitation, anger, stress and distraction as a result of these publications. To the extent that damages are recoverable for these matters, I would have awarded her a total of $60,000 in general damages (inclusive of the amounts already awarded).
Aggravated/exemplary damages
372Lynn also sought aggravated and exemplary damages.
373The amounts I have awarded for breach of confidence and invasion of privacy are calculated having regard to the mental distress caused to Lynn by Romy’s conduct. This has led me to the conclusion that item 3 (the incorrect statement that Lynn had apologised to Romy in a private email to him) should be viewed as particularly distressing to Lynn. The damages awarded for item 3 reflect this finding.
374However, I am not satisfied that, in the particular, tragic circumstances of this case, Romy’s conduct can be viewed as insulting or high handed or committed with malice or contumelious disregard of Lynn’s rights. No further damages should be awarded on this basis.
375Nor am I satisfied that this is an appropriate case for exemplary damages, even if such damages were available.
Conclusion
376I give judgment for Lynn in the following amounts:
(a) equitable compensation (alternatively, money had and received) in the sum of $20,177.61, plus:
(i)interest on $20,177.61, from 26 February 2010 to 10 September 2019 calculated at 4 percent compounding annually ($9,343.24); and
(ii)interest on $20,177.61, from 11 September 2019 to 28 June 2024 at the applicable penalty interest rate (not compounding) ($9,682.53);
(b) equitable compensation in the sum of $105,980.07 plus the following amounts in interest:
(i)$6,086.37;
(ii)$1,306.07; and
(iii)$5,505.56,
Total interest: $12,899
(c) damages in the sum of $40,000, plus interest from 11 September 2019 to 28 June 2024 at the applicable penalty interest rate (not compounding) ($19,194.61).
377I will hear from the parties on the question of costs.
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