JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: WILSON -v- FERGUSON [2015] WASC 15
CORAM: MITCHELL J
HEARD: 2 DECEMBER 2014
DELIVERED : 16 JANUARY 2015
FILE NO/S: CIV 2514 of 2013
BETWEEN: CAROLINE RACHEL WILSON
Plaintiff
AND
NEIL SCOTT FERGUSON
Defendant
Catchwords:
Equity - Breach of confidence - Online publication
Remedies - Injunction - Equitable compensation - Compensation for embarrassment, anxiety and distress
Costs - Indemnity costs
Legislation:
Supreme Court Act 1935 (WA), s 25(1)
Rules of the Supreme Court 1971 (WA), O 34 r 2, O 34 r 4
Result:
Injunction granted
Equitable compensation of $48,404 awarded
Costs awarded
Category: A
Representation:
Counsel:
Plaintiff: Mr B Goldsmith
Defendant: No appearance
Solicitors:
Plaintiff: Goldsmiths Lawyers
Defendant: No appearance
Case(s) referred to in judgment(s):
Ammon v Consolidated Minerals Ltd [No 3] [2007] WASC 232
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199
Australian Consolidated Press v Morgan (1965) 112 CLR 483
Cadbury Schweppes Inc v FBI Foods Ltd (1999) 167 DLR (4th) 577
Coles v Miles [2002] NSWCA 150
Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39
Concept Television Productions Pty Ltd v Australian Broadcasting Corporation (1988) 12 IPR 129
Duchess of Argyll v Duke of Argyll [1967] 1 Ch 302
Farah Constructions Pty Ltd v Say‑Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
Giller v Procopets [2008] VSCA 236; (2008) 24 VR 1
HK Frost Holdings v Darville McCutcheon [1999] FCA 570
Ithaca Ice Works Pty Ltd v Queensland Ice Supplies Pty Ltd [2002] QSC 222
Kwok v Thang [1999] NSWSC 1034
Lord Ashburton v Pape [1913] 2 Ch 469
Moorgate Tobacco Co Ltd v Phillip Morris Ltd (No 2) (1984) 156 CLR 414
Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69; (2001) 208 CLR 388
Pollard v Photographic Company (1888) 40 Ch D 345
Prince Albert v Strange (1849) 1 Mac & G 25; 41 ER 1171
R & I Bank of Western Australia Ltd v Anchorage Investments Pty Ltd (1993) 10 WAR 59
Smith Kline & French Laboratories (Aust) Ltd v Department of Community Services and Health (1990) 22 FCR 73
Smith Kline & French Laboratories (Australia) Ltd (1991) 28 FCR 291
State of Western Australia v Carlino [No 2] [2014] WASC 404
Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S)
Vasco Investment Managers Ltd v Morgan Stanley Australia Ltd [2014] VSC 455
Warman International Ltd v Dwyer (1995) 182 CLR 544
West Australian Newspapers Ltd v Bond [2009] WASCA 127; (2009) 40 WAR 164
MITCHELL J: This case involves a claim by the plaintiff against the defendant alleging breach of confidence. The issue raised is how an Australian court exercising equitable jurisdiction should respond to the publication by a jilted ex‑lover, to a broad audience via the internet, of explicit images of a former partner which had been confidentially shared between the sexual…
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- Wilson v Ferguson [2015] WASC 15
- Case
- [2015] WASC 15
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CaseChat Overview and Summary
The primary legal issues before the court were whether the defendant's publication of the intimate images constituted a breach of confidence and, if so, what remedies were available to the plaintiff. The court had to determine whether the images had a quality of confidence and whether the defendant's actions constituted a misuse of that confidence.
The court found that the intimate images had the necessary quality of confidence about them, as they were explicit and taken in a private setting. The defendant's actions in emailing copies of the videos to himself without the plaintiff's knowledge or consent further confirmed the confidential nature of the images. The court held that the defendant's publication of the images on Facebook amounted to a misuse of the plaintiff's confidence. The court granted the plaintiff an injunction preventing the defendant from publishing the images and awarded equitable compensation for the breach of confidence. The court also ordered the defendant to pay the plaintiff's costs on an indemnity basis.
In summary, the court held that the defendant's publication of intimate images of the plaintiff on Facebook constituted a breach of confidence. The court awarded the plaintiff an injunction, equitable compensation, and costs on an indemnity basis.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Similarly, in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd,[13] Gleeson CJ observed that a private image, surreptitiously obtained, may constitute confidential information. Recognising that no bright line could be drawn between what is private and what is not, he suggested that ''[t]he requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private'.[14] [13] [2001] HCA 63; (2001) 208 CLR 199 [34] ‑ [35].[14] Lenah Game Meats [42]. The principle on which the plaintiff relies was also applied by the Victorian Court of Appeal in Giller v Procopets.[15] In that case the respondent had videotaped the parties engaged in sexual activity in the privacy of a bedroom. Some of the video had been taken without the appellant's knowledge but the appellant was aware of later video recordings. When the relationship ended, the respondent distributed and attempted to distribute copies of the videotape to the appellant's family and others, and sought to persuade the recipients to view what was depicted in the tape. The contentious legal issue in that case concerned whether an action for monetary compensation was established (an issue to which I return below). In reaching an affirmative answer to that question, the Court of Appeal accepted that the publication of the videotape amounted to a breach of confidence.[15] [2008] VSCA 236; (2008) 24 VR 1. For the reasons that follow, the conduct of the defendant in posting the photographs and videos of the plaintiff to his Facebook page, from which they were accessible to a large number of people including employees at the plaintiff's workplace, involved a breach of his equitable obligation, owed to the plaintiff, to maintain the confidentiality of the images. The intimate images of the plaintiff clearly had the necessary quality of confidence about them. The explicit nature of the images was itself suggestive of their confidential character. Intimate photographs and videos taken in private and shared between two lovers would ordinarily bear a confidential character, and be implicitly provided on condition that they not be shown to any third party. In the present case that character was confirmed by the discussions between the plaintiff and defendant, in which the plaintiff emphasised the deeply personal nature of the images. The images were not in the public domain in any sense prior to the defendant's publication of them. Preservation of the confidentiality of the images was clearly a matter of substantial concern to the plaintiff,[16] and would have been regarded as highly offensive to any reasonable person of ordinary sensibilities. The defendant appreciated this.[16] Moorgate Tobacco Co (438). The circumstances in which the defendant obtained the images of the plaintiff were such as to impose on the defendant an obligation of conscience to maintain the confidentiality of the images. The fact that the defendant emailed copies of the sexually explicit videos to himself from the plaintiff's phone without her knowledge or consent would of itself ordinarily be sufficient to import an obligation of confidence. This was confirmed by the plaintiff's reaction to being informed of what the defendant had done, and the defendant's agreement to make sure nobody else saw the photographs.