An Australian court has, for the first time, made an award of
damages to compensate a plaintiff for "mere distress"
which had resulted from a breach of confidence. On the authority of
this decision, it is no longer necessary to prove an actual
psychiatric injury in order to obtain damages where a duty of
confidence has been breached.
In Giller v Procopets  VSCA 236 (10 December
2008), the Victorian Court of Appeal had to determine (amongst
other issues) whether Ms Giller was entitled to damages for the
distress that she suffered when her estranged de facto husband
tried to show her family and friends videotapes he had made,
initially surreptitiously, of their sexual activities.
The Court of Appeal determined that the existence of
jurisdiction for the court to entertain an application for an
injunction was sufficient also to enliven its power to make an
award of damages, notwithstanding that no such application had been
However, as the trial judge had found that Ms Giller had not
suffered any psychiatric injury as a result of the distribution of
the videotapes, it was necessary for it to determine whether or not
distress alone can be a sufficient basis for damages to be
Although, prior to this case, some views had been expressed that
actions for breach of confidence could be regarded similarly to
actions for defamation - that is, as an exception to the general
rule that damages are not ordinarily recoverable for distress or
injury to feelings – no Australian court had ruled to
this effect. In recent years, however, there have been some UK
decisions in which courts there had awarded damages for distress.
These decisions – which included a claim by a model,
Naomi Campbell, arising from the tabloid publication of her
attendance at a narcotics anonymous meeting and a claim by the
actors Michael Douglas and Catherine Zeta Jones against Hello!
Magazine – were cited by the Court of Appeal.
The members of the Court of Appeal came to the unanimous
conclusion that there should be no barrier to the making of an
order for damages to compensate a claimant for the embarrassment or
distress suffered by reason of a breach of confidence. In doing so,
the Court found that the relevant conduct had been undertaken for
the deliberate purpose of humiliating, embarrassing and distressing
Ms Giller and that it was therefore appropriate to include in the
award a component for aggravated damages.
While no superior court in Australia has recognised the
existence of a tort of "invasion of privacy" (which was
the subject of consideration in the Australian Law Reform
Commission's May 2008 report on Australian privacy laws), and
the Court of Appeal in Giller did not find it necessary to
decide that issue, the ability of plaintiffs who have had their
confidential information published without their consent to secure
awards of damages – including aggravated damages
– may necessitate significant changes to the approaches
taken by, in particular, media organisations when deciding what
they should or should not publish.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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