Statutory Tort For Serious Invasion Of Privacy

The new statutory tort for serious invasion of privacy represents a significant change to the way that the Privacy Act 1988 (Cth) regulates privacy, who it regulates, and how we think about statutory privacy in Australia. Since the Privacy Act amendments were made with the passing of the Privacy and Other Legislation Amendment Act 2024 (Cth), questions have remained as to how Australian courts would approach the new statutory privacy tort, including what constitutes a "serious" invasion of privacy and the relief likely to be ordered upon such a judicial determination.

Under Part 2 of Schedule 2 of the Privacy Act, an individual has a cause of action in tort against another person if:

1.     the defendant invaded the plaintiff's privacy by doing one or both of the following:
   1.   intruding upon the plaintiff's seclusion;
   2.   misusing information that relates to the plaintiff; and
2.     a person in the position of the plaintiff would have had a reasonable expectation of privacy in all of the circumstances; and
3.     the invasion of privacy was intentional or reckless; and
4.     the invasion of privacy was serious; and
5.     the public interest in the plaintiff's privacy outweighed any countervailing public interest.

The invasion of privacy is actionable without proof of damage.

Those questions are now partially answered with the first published decision applying the new statutory privacy tort with Judge Gibson handing down judgment in the District Court of New South Wales in Kurraba Group Pty Ltd & Anor v Williams [2025] NSWDC 396 on 7 October 2025.

Interestingly, the proceedings were commenced on the defamation list with the plaintiffs making an application on an ex parte basis seeking interlocutory orders for the torts of defamation and serious invasion of privacy (in respect to the second plaintiff, Mr Smith).

The background to the proceedings involved the defendant (Mr Williams) through his company, Glexia Pty Ltd, entering a six month lease for the premises located at 100 Botany Bay Road, Alexandra, and becoming aware of a development application (DA) to redevelop that property proposed to be made by the owner, the first plaintiff (Kurraba Group Pty Ltd) as led by its CEP, the second plaintiff, Mr Smith.

It was alleged that Mr Williams had sent Mr Smith a text claiming that the DA would disrupt his business and breach various laws and advised that he would be opposing the DA. At a meeting on 11 November 2024, the defendant demanded $50,000 from the plaintiffs to remove his objections to the DA, citing his past success with disputes against other large corporations. The behaviour complained of by the plaintiffs concerned:

• posting a one-star Google review of Kurraba;
• making public oral submissions to the planning committee considering the DA containing allegations about the plaintiffs; and
• creating a website, "Kurraba Group Exposed" and publishing a suite of allegations against both plaintiffs, which accused the plaintiffs of broken promises, failed past ventures, financial desperation, deceptive rebranding, questionable qualifications, legal intimidation of critics, conflicts of interest and regulatory dodges.

In respect of the statutory tort for serious invasion of privacy, the defendant's behaviour involved the publication of Mr Smith's (and his wife's) private wedding photographs without his consent and in a manner that sought to imply that the images depicted moral delinquency and drunkenness, rather than the sanctity of marriage.

Judge Gibson found that the conduct of the defendant was such that there was a serious question to be tried in relation to the statutory tort of privacy concerning the second plaintiff (as well as the tort of intimidation and the tort of defamation) and granted urgent interlocutory injunctive relief restraining the defendant from publishing any document about the plaintiffs and requiring the defendant to take down any website, article, advertisement or document about the plaintiffs.

Her Honour found that the wedding photographs were private because the second plaintiff and his wife were not public figures and had no intention of publishing their wedding photos to any media or any other mass publication organisation. Judge Gibson also noted that the defendant misused the wedding photographs by seeking to portray what they depicted indicated "moral delinquency and drunkenness as opposed to the sanctity of marriage and the ceremonial proceedings attendant there upon". In those circumstances, Her Honour considered the balance of convenience favoured the plaintiffs where the defendant's conduct amounted to extortion and as there was no evidence of any other legitimate reason for the defendant's conduct. Judge Gibson considered that the journalism exception was not a valid defence, commenting that "[t]he defendant's conduct is not that of journalistic-style investigation, but of extortion". Her Honour also observed that: "This is clearly the case for interlocutory relief, which is all that concerns this application, and may well also apply to final relief, although the precise parameters of power will have to await determination for another day."

Judge Gibson noted her judgment would say "as little about the subject matter (concerning the invasion of privacy claim) as possible", in recognition of the fact that "merely repeating the false allegations in a judgment can increase the damage".

This first instance decision may well see the statutory cause of action for serious invasion of privacy become common in proceedings previously limited to defamation when the circumstances allow – especially given that the invasion of privacy is actionable without proof of damage and that the maximum damages award for breaches of the statutory tort are $478,550 (or up to the maximum amount of damages for non – economic loss that may be awarded in defamation proceedings under an Australian law).

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.