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  4. Doe v Yahoo!7 Pty Ltd; Wright v Pagett - [2013] QDC 181

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Doe v Yahoo!7 Pty Ltd; Wright v Pagett[2013] QDC 181

Doe v Yahoo!7 Pty Ltd; Wright v Pagett[2013] QDC 181

DISTRICT COURT OF QUEENSLAND

CITATION:

Doe v Yahoo!7 Pty Ltd & Anor; Wright v Pagett and Ors [2013] QDC 181

PARTIES:

Gladstone D2/2013

JANE DOE
(Plaintiff)

v

YAHOO!7 PTY LTD
(First Defendant)

and

YAHOO! INC
(Second Defendant)
 

Gladstone D3/2013

KERRY GEORGE WRIGHT

(Plaintiff)

v

GEOFFREY PAGETT

(First Defendant)

and

YAHOO!7 PTY LTD

(Second Defendant)

and

YAHOO! INC

(Third Defendant)

FILE NO/S:

Gladstone D2/13 and D3/13

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Gladstone 

DELIVERED ON:

9 August 2013

DELIVERED AT:

Rockhampton

HEARING DATE:

22 July 2013

JUDGE:

Smith DCJ

ORDER:

  1. Application to strike out the Statement of Claim of Jane Doe is granted and the Statement of Claim is struck out.
  2. Application to strike out the claim of Jane Doe is refused.
  3. Application to strike out the Statement of Claim of Kerry Wright is granted and the Statement of Claim is struck out.
  4. Application to strike out the claim of Kerry Wright is refused.
  5. Jane Doe’s application to amend the Statement of Claim and for judgment is refused.
  6. Kerry Wright’s application to amend the Statement of Claim and for judgment is refused.
  7. Actions stayed until the Plaintiffs have complied with Part 1 of Chapter 2 of the Personal Injuries Proceeding Act 2002 (Q).   
  8. I give the parties liberty to apply.
  9. I will hear the parties as to costs.

CATCHWORDS:

PRACTICE PROCEDURE – Application to strike out claims and statements of claim

TORTS – action for breach of confidence – action for breach of invasion of privacy – action for negligence – action for intentional infliction of emotional distress

PERSONAL INJURY – whether Personal Injuries Proceedings Act 2002 (Qld)  applies – whether proceeding is a nullity or irregular

CONSUMER LAW – action for breach of the Fair Trading Act 1989 (Qld)  and Consumer and Competition Act 2010 (Cth)

Broadcasting Services Act 1992 (Cth) Schedule 5 clause 91

Civil Liability Act 2003 (Qld) ss 7, 9, 10, 11, 12

Consumer and Competition Act 2010 (Cth)

Criminal Code 1995 (Cth) s 474.14

Criminal Code 1899 (Qld) s 359B

Defamation Act 2005 (Qld) s 19

Disability Discrimination Act 1992 (Cth) ss 38, 44, 122, 123

Fair Trading Act 1989 (Qld) ss 6, 38, 99, 100

Personal Injuries Proceedings Act 2002 (Qld) ss 6, 7, 9, 18

Sex Discrimination Act 1984 (Cth) ss 28G, 105

Trade Practices Act 1974 (Qld) ss 52, 75B, 84

Uniform Civil Procedure Rules 1999 r 144, 171

ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199

Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364

Boulter v Batten and Anor [2010] QDC 056

Campbell v MGN Ltd [2004] 2 AC 457

Coco v Ord Minnett Ltd [2012] QSC 324

Doe v Australian Broadcasting Corporation & Ors [2007] VCC 281

Douglas v Hello! Ltd [2006] QB 125

Dye v Commonwealth Securities Ltd [2010] FCA 720

Earl v Nationwide News Pty Ltd [2013] NSWSC 839

Gee v Burger [2009] NSWSC 149

Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269

Giller v Procopets (2008) 24 VR 1

Godfrey v Demon Internet Ltd [1999] EWHC QB 244

Grosse v Purvis [2003] QDC 151

Habib v The Commonwealth [2010] FCAFC 12

Hamling v Australia Meat Holdings Pty Ltd (No 2) [2007] 1 Qd R 315

John Fairfax Publications v Hitchcock (2007) 70 NSWLR 484

Jones v Tsige [2012] ONCA 32

Kalaba v Commonwealth of Australia [2004] FCAFC 326

Li Yau Wai v Genesis Films Ltd [1987] HKLR 711 (CFI)

Martens v Stokes & Anor [2013] 1 Qd R 136

Minister of State for Immigration & Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273

Phipps v Australian Leisure and Hospitality Group Ltd [2007] 2 Qd R 555

Platinum United II Pty Ltd & Anor v Secured Mortgage Management Ltd (in liq) [2011] QCA 162

Projects Company No. 2 Pty Ltd v Cushway Blackford & Associates Pty Ltd & Anor [2011] QCA 102

Spencer v Commonwealth of Australia  [2010] HCA 28

Stratton Oakmont Inc v Prodigy Services Co .,1995 WL 805178 (N.Y Sup., Dec. 11. 1995)

Tame v NSW; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317

Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574

Toonen v Australia [1994] PLPR 33

Trkulja v Yahoo! Inc LLC & Anor [2012] VSC 88

Trkulja v Google Inc LLC & Anor (No 5) [2012] VSC 533

Walker-Eyre v Emirates [2012] QDC 364

Woolcock Street Investments Pty Ltd v CDG Pty Ltd and Anor (2004) 216 CLR 515

Yorke v Lucas (1983) 49 ALR 672

COUNSEL:

Mr R Anderson for the Applicant/Defendants

Mr K Wright, self-represented for both Plaintiffs

SOLICITORS:

Burns and Philp as town agents for Addisons for the Defendants

No solicitors for the Plaintiffs

Introduction

  1. [1]
    The parties have agreed that these applications be heard together.
  1. [2]
    This is an application by the Defendants (excluding Mr Pagett) (“Yahoo!”) to strike out the Plaintiffs’ Claims or alternatively the Plaintiffs’ Statements of Claim pursuant to UCPR r 171.
  1. [3]
    There is a cross-application by the Plaintiffs to amend the Statements of Claim and for judgment.
  1. [4]
    I bear in mind that Yahoo! carries the onus of proof in the application to strike out.
  1. [5]
    When considering a strikeout application, I bear in mind that which was stated by Fraser JA in Platinum United II Pty Ltd & Anor v Secured Mortgage Management Ltd (in liq) [2011] QCA 162 at [13], where his Honour said:

“Issues in proceedings should ordinarily be decided at trial and should not be decided summarily unless there is a ‘high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way’ or a ‘demonstrated certainty of outcome.’”

  1. [6]
    The court needs to consider whether the facts pleaded are capable in law of giving rise to the relief sought (Coco v Ord Minnett Ltd [2012] QSC 324 at [18]).
  1. [7]
    In Projects Company No. 2 Pty Ltd v Cushway Blackford & Associates Pty Ltd & Anor [2011] QCA 102 at [27] the Court noted that where the law is uncertain especially in a state of development, it is inappropriate to strike out a claim.
  1. [8]
    In the context of a summary judgment application French CJ and Gummow J in Spencer v Commonwealth of Australia [2010] HCA 28 said at [24]:

“The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. The same applies where such a disposition is sought in a summary judgment application supported by evidence. As to the latter, this Court in Fancourt v Mercantile Credits Ltd said:

‘The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.’

More recently, in Batistatos v Roads and Traffic Authority (NSW) Gleeson CJ, Gummow, Hayne and Crennan JJ repeated a statement by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde which included the following:

‘Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.’”

The Statements of Claim

  1. [9]
    The UCPR r 149 set out the rules as to pleading.
  1. [10]
    It is my opinion that a consideration of the Statements of Claim as a whole are that they are voluminous, unintelligible in parts and do not properly plead the causes of action relied upon.
  1. [11]
    In those circumstances, it is my opinion that the Statements of Claim should be struck out.
  1. [12]
    In my view the proposed amendments do not remedy the situation. I refuse leave to amend the Statements of Claim.
  1. [13]
    Needless to say it follows that I decline to order judgment in favour of the Plaintiffs.
  1. [14]
    However as I have noted above, Yahoo! seeks to strike out the Claims as well because it says that the facts cannot give rise to the causes of action.
  1. [15]
    In order to consider this submission, it is necessary to examine the facts of this case.

Facts

  1. [16]
    Mr Anderson, on behalf of Yahoo!, did not take any point that the facts were not deposed to in an affidavit by the Plaintiffs. He was content for the court to rely upon the documents relied on by the Plaintiff together with appendices attached to further and better particulars.
  1. [17]
    At all material times, Kerry Wright and Jane Doe lived in the Gladstone district.  Yahoo! is alleged to operate the website Yahoo.com.
  1. [18]
    The Plaintiffs allege that individuals can become registered users of this service and can post photographs and comments through the use of a profile on the Yahoo! website. An individual creates a profile page.
  1. [19]
    It seems that Mr Wright and Mr Pagett engaged in a dispute over Mr Pagett’s allegedly unlawfully selling of a book which was written by Mr Wright. Appendix S to the further and better particulars are emails from July 2009 between Mr Wright and Mr Pagett which tend to support this suggestion.
  1. [20]
    On 24 November 2009 an article was written about Jane Doe in The Gladstone Observer newspaper (“The Observer”) (Appendix P to the Plaintiff’s further and better particulars). This article contained a photograph of Ms Doe and noted she had an autoimmune disease. In another internet-based article from The Observer, another photograph of Ms Doe appeared.
  1. [21]
    The Plaintiff alleges Mr Pagett created a profile in the name “Jane Doe” on the Yahoo! website sometime in March 2010. It is alleged that the photograph used on the profile was from The Observer article.
  1. [22]
    Exhibit J of the further and better particulars is a printout of the profile dated 18 March 2010. This noted she had been a member since 14 March 2010. The profile (which changed over time) was used by Mr Pagett to post objectionable comments on various articles on the Yahoo! website. I will set those out.

Comments under the name “Jane Doe”

  1. [23]
    There was an article concerning a blind soldier seeing through his tongue (Appendix I).
  1. [24]
    At 4.05 p.m. on 16 March 2010 “Jane Doe from Gladstone” said “Rob, this soldier should have died on the op table, it was a waste of taxpayers money while there is sick children waiting for heart transplants, kids with cancer ect ect and no money to help them.”
  1. [25]
    At 4.07 p.m. on 16 March 2010 “Jane Doe from Gladstone” said “Rob, no to mention the homeless people that need a hand out while we have this bludger who wants to cause trouble over seas fighting ect, ‘I say oxygen thief’”
  1. [26]
    At 11.11pm on 15 March 2010 “Jane Doe Wright from Gladstone” said, “whichway I will be in Townsville crabbing.”
  1. [27]
    At 11.12 p.m. on 15 March 2010 “Jane Doe from Gladstone” said, “Demi, I would spit on husky for killing innocent men and children.” 
  1. [28]
    At 11.24 p.m. on 15 March 2010 “Jane Doe from Gladstone” said, “Yes, I come from Kidderminster Worcestershire.” 
  1. [29]
    At 11.42 a.m. on 16 March 2010 “Jane Doe from Gladstone” on a Kate Winslet article stated, “I am attractive, gorgeous, beautiful, gracious, busty and full of kisses and cuddles.”
  1. [30]
    At 00:22 on 17 March 2010 “Jane Doe from Gladstone” said, “andrew, speek the english, see see my bou, lonky lay, nee how.”
  1. [31]
    At 14:59 on 17 March 2010 there was a comment by “Jane Doe” on an article concerning Tiger Woods, “I’ll give Tiger a bit of pussie anyday.”
  1. [32]
    At 16:29 on 17 March 2010 “Jane Doe from Gladstone” commented on an article, “Gillard touted as natural successor.”  “Karen C knows all about threats, the filthy slut.” 
  1. [33]
    At 17:27 on 17 March 2010, “Jane Doe from Gladstone” made a comment on the same article:  “Whats a nice girl like me gunna do.. I’m horny as hell today.” 
  1. [34]
    At 17:40 on 17 March 2010 “Jane Doe from Gladstone” made a comment about the same article:  “Just take alook at this body of mine… who wants to lay me out and spread my legs apart” 
  1. [35]
    At 18:32 on 17 March 2010 “Jane Doe from Gladstone” made a comment on the same article, “singleand ugly I agree with you, same can be said about karen c, she thinks she’s just it…I think I will start paying out on her now.”
  1. [36]
    At 21:58 on 17 March 2010 “Jane Doe from Gladstone” made a comment on the same article:  “This story makes me want to finger myself.”
  1. [37]
    At 22:22 on 17 March 2010 “Jane Doe from Gladstone” made a comment on a Michael Clarke story:  “I feel like a bit.” 
  1. [38]
    At 22:26 on 17 March 2010 at 22:26, “Jane Doe from Gladstone” made a comment on the same article, “Whats a girl guuna do with this big thing in my mouth” 
  1. [39]
    At 22:34 on 17 March 2010, “Jane Doe from Gladstone” on the same story, said:  “I’m gunna take my panties off and try this big thing out.. oooooooo so gooooood.”

Comments under the name “Spastic legs”

  1. [40]
    At some stage Mr Pagett changed the name to “Spastic legs” after a complaint from Mr Wright (Appendix J to the further and better particulars).
  1. [41]
    However the profile on Yahoo! kept Jane Doe’s profile photograph and her name.
  1. [42]
    It is noteworthy the evidence suggests the following comments and the profile photograph was kept on the Yahoo! website until 7 February 2011 despite Mr Wright’s complaints to Yahoo!.
  1. [43]
    The following comments were posted by Mr Pagett.
  1. [44]
    At 7.55 a.m. on 23 March 2010 Ms Doe (with the profile photo) commented on a Johnny Depp article, stating, “I would love to be a actor but look at me, wheel chair bound,  lucky bugger.”
  1. [45]
    At 11.03 p.m. on 23 March 2010 Ms Doe (with the same profile photo) commented on a Green Machine article:  “John you r a idiot, you need to see mundine fight. If he came to Makay we would punch the crist out of him.”
  1. [46]
    At 9.19 a.m. on 25 March 2010 Ms Doe (with the same profile photo), with respect to a Hollywood sign article, said:  “Help me to walk.”
  1. [47]
    At 9.20 a.m. on 25 March 2010 Ms Doe (with the same profile photo), with respect to a Siberian article, noted, “My dad turned me into a wheel chair bound prostitute.”
  1. [48]
    At 8.58 p.m. on 9 April 2010 Ms Doe, on a Pauline Hanson article, said:  “Please don’t go Pauline.”
  1. [49]
    At 6.11 a.m. on 11 April 2010, with respect to a Tiger Woods article, (with the same profile photo) she said, “My cous needs help to walk again.”
  1. [50]
    At 11.28 p.m. on 11 April 2010, Ms Doe (with the same profile photo), on a cancer study article, said, “My uncle Kerry has lung cancer,  we think it’s from printing ink.”
  1. [51]
    At 1.06 p.m. on 11 April 2010, Ms Doe commented on a Patrick Swayze article:  “I’ve got an uncle Kerry who drinks brown Muscat every night and acts all tough, belts his wife up and once put his daughter in hospital with broken legs. We’ll all stay away from this family.”
  1. [52]
    At 4.38 a.m. on 12 April 2010, Ms Doe, on an Amy Winehouse article, stated:  “My cousin has more talent than her,  She sings through her @rse.”
  1. [53]
    At 11.37 a.m. on 12 April 2010, Ms Doe (with the same profile photo), with respect to a man having sex with a donkey, said:  “Was the horse under age?”
  1. [54]
    At 8.49 a.m. on 13 April 2010, Ms Doe (with the same profile photo), with respect to an ocean article, stated:  “This is not where Hell is…Hell is in Gladstone Queensland.”
  1. [55]
    At 4.12 a.m. on 14 April 2010, with respect to a Christian music star, Ms Doe (with the same profile photo) stated:  “I think I’m a lesbian…I only have sex with girls too.”
  1. [56]
    At 8.37 p.m. on 23 April 2010, Ms Doe (with the same profile photo), with respect to a man winning a jackpot article, stated:  “I could do with some money for a mak eover.”
  1. [57]
    At 8.41 p.m. on 23 April 2010, with respect to the same article (with the same profile photo), she stated: “Soom in and see how ugly I am, but I do give good head jobs.”

Comments under the name “AR”

  1. [58]
    Mr Pagett also used the name “AR”.
  1. [59]
    More comments were posted under this name.
  1. [60]
    At 10.52 p.m. on 29 March 2010 there was a comment on an article about a teenager chopping off his penis, and she said: “I did the same thing and it put me in a wheel chair.”
  1. [61]
    At 3.50 p.m. on 30 March 2010, there was a comment on a Lady Gaga article: “Help me to get out of this wheel chair Daddy.”
  1. [62]
    At 6.58 p.m. on 30 March 2010, with respect to a cigarette article, she said: “Please don’t spray me I can’t run.”
  1. [63]
    At 8.48 p.m. on 30 March 2010, with respect to an Oscars article, she said: “This is very sad…its not nice to be cheated.”
  1. [64]
    At 7.21 p.m. on 1 April 2010, with respect to an article concerning a food scam, she said: “Take a look at me, skinny legs and arms.”
  1. [65]
    At 9.58 p.m. on 2 April 2010, with respect to a tennis article, she said: “ ahray , I can stand on my two feet, but I’m still megga ugly.”
  1. [66]
    At 9.31 p.m. on 5 April 2010, with respect to a Michael Jackson article, she said: “I can stand on my feet.”
  1. [67]
    At 12.24 p.m. on 7 April 2010, with respect to a suitcase article, she said: “I steal from others all the time,, and get a good laught and the other persons reaction,,. Some jump up and down like a roo,,, ha ha lol.”
  1. [68]
    At 12.24 p.m. on 7 April 2010, with respect to a hoarder article, she said: “I would like to find a new look, it’s not nice to be ugly.”
  1. [69]
    At 3.25 p.m. on 8 April 2010, with respect to a Tiger Woods article, it was said: “I wish I could have a affair but I’m too ugly.”
  1. [70]
    At 12.23 a.m. on 9 April 2010, with respect to an asylum seeker article, she said: “I say let them come in, we need more wogs to finish destroying this country, after all the lebonese have done a good job of it.”

Use of the name “Kerry”

  1. [71]
    Mr Wright also alleges that Mr Pagett used the name “Kerry”.
  1. [72]
    There is an undated comment by “Kerry” on an article called “Madge Puts On Designer Hat”, the comment being: “I’m legless today. Someone give me a push in the right direction. Madonna, you need a new hat.”
  1. [73]
    Kerry commented on a Sandra Bullock article: “Robert, you are a very nasty person. You can laugh now but sooner or later someone will track you down and do something to you. Be very careful.”
  1. [74]
    Kerry further commented on the Sandra Bullock article “Y R people so unkinde 2 1 another.” And “moonbeam r u robert or husky, I know you’re one or the other.”
  1. [75]
    There are some other comments by Kerry particularised in Appendix H to the further and better particulars.

Use of the name “the ugly one”

  1. [76]
    Mr Wright alleges Mr Pagett used this name as well together with the photo of Jane Doe.
  1. [77]
    There was limited evidence of this in the material relied on by the Plaintiffs.

Comments by other users on Yahoo!

  1. [78]
    Appendix D of the further and better particulars contains details of comments by other users of Yahoo! concerning comments made by the Mr Pagett.
  1. [79]
    This shows there was a considerable “grapevine effect” by reason of the comments made by Mr Pagett and published by Yahoo!.

Attempts made by Mr Wright to solve the problem

  1. [80]
    It seems that Mr Wright posted a number of comments on the Yahoo! website warning that Mr Pagett was impersonating Jane Doe (Appendix H to the further and better particulars).
  1. [81]
    By way of example on 18 March 2010 Mr Wright posted a comment on Jane Doe’s profile, noting, “Please note marmajukewishbone is using … [Jane Doe], as an ID in these forums for malicious purposes.” (Appendix J of the further and better particulars.)

Dealings between Mr Wright and Yahoo!

  1. [82]
    Mr Wright alleges that despite his complaints to Yahoo! it was not until February 2011 that the comments were finally removed.
  1. [83]
    The evidence reveals that on 17 March 2010 at 4.25 a.m. Mr Wright emailed Yahoo! advising them that Mr Pagett was using a false identification (Appendix F no 1).
  1. [84]
    Further, on 17 March 2010 at 5.07 a.m. Mr Wright emailed Yahoo! making the same allegation (Appendix F no 2).
  1. [85]
    Yahoo! replied on 18 March 2010 at 1.16 p.m. (Appendix E document 3) in what appears to be an automatically generated message, stating, “Thank you for reporting this user. We will look into it and take the necessary action as defined in our terms of service.”
  1. [86]
    On 18 March 2010 at 11.41 a.m. Yahoo! sent a message in similar terms (Appendix E no 4).
  1. [87]
    On 19 March 2010 at 4.30 a.m. Yahoo! sent another message in similar terms (Appendix E no 5).
  1. [88]
    On 19 March 2010 at 4.57 p.m. Mr Wright wrote back to Yahoo!, complaining again that he and his family were being maliciously abused. He complained that a photograph of Jane Doe was used by Mr Pagett as an ID and he was sending sexually explicit messages to the distress of the family. It was pointed out that he used Mr Wright’s name and his sister Karen’s name. It was noted, “Currently he is using ‘theuglyone’.”  “For a short while he used [Jane Doe’s] photo with this ID.”  He wanted to know why Mr Pagett’s activities in the forums were not stopped (Appendix F no 3).
  1. [89]
    Despite this correspondence as noted above the comments by Mr Pagett continued.
  1. [90]
    At 12.35 a.m. on 22 March 2010 (Appendix E no 7), Duke from Yahoo! wrote to Mr Wright noting it was a violation of the Yahoo! terms of service to send threatening or harassing emails and asking for additional information to evaluate the situation. Duke asks for copies of the complete emails.
  1. [91]
    At 2.05 on 22 March 2010, Mr Wright replied to Yahoo! noting that Duke obviously did not read the email. He pointed out he did not complain about malicious emails from Yahoo!. He pointed out that the ID (currently “theuglyone”) was first listed as [Jane Doe] from Gladstone. Mr Pagett had used a photo of her in his ID, sending sexually explicit messages and derogatory comments to the distress of his family and her friends. He then used the name “Kerry” and then his sister’s name “Karen” and he again used his daughter’s photos with one of his names. Mr Wright asked why they had not removed the ID. He had reported Mr Pagett to the New South Wales Police but had difficulty because Mr Pagett was interstate (Appendix F no 4).
  1. [92]
    At 10.20 a.m. on 25 March 2010, Elmer from Yahoo! wrote to Mr Wright stating he had investigated the problem which had been reported and stated that the problem with the account appeared resolved. An apology was given (Appendix E document 8).
  1. [93]
    On or about 31 March 2010 at 9.58 a.m. (Appendix F document 5), Mr Wright replied noting that Yahoo! had still not acted on the abuse against himself and his family. He pointed out that the ID (currently “theuglyone”) was first listed as [Jane Doe] from Gladstone. Mr Pagett used a photo of her in his ID and he sent sexually explicit messages and derogatory comments. He then used the name “Kerry” and “Karen” and used the photo with one of the other names. Mr Wright asked why the ID had not been removed.
  1. [94]
    At 9.58 a.m. on 31 March 2010 Yahoo! replied in a form answer, noting: “We’re glad to hear that your question has been answered.” (Appendix E document 10). This clearly was non-responsive to Mr Wright’s statement.
  1. [95]
    At 10.37 p.m. on 1 April 2010 (Appendix E document 11), again in a standard form response Yahoo! stated: “Customer inquiry will require some additional research.”
  1. [96]
    At 7.19 a.m. on 8 April 2010 Yahoo! wrote to Mr Wright apologising for the delay and again asked him for copies of the relevant abusive emails (Appendix E document 12). This clearly was non-responsive to Mr Wright’s complaint because he had not complained of malicious emails.
  1. [97]
    At 8.18 p.m. on 8 April 2010 Mr Wright replied to Yahoo!, pointing out that the abuse does not concern abusive emails but identity fraud for the purpose of malicious abuse. He pointed out that the person went under a variety of aliases but his name was Geoffrey Pagett of 14 Kubor Crescent, Whelan, New South Wales. He pointed out that the ID (currently “theuglyone”) was first listed as [Jane Doe] with a photo from the Gladstone Observer. He pointed out that which he had stated in earlier emails. He tried to attach the page he started with but they could not locate the page he started with. He asked Yahoo! to let him know and he would try again (Appendix F no 6).
  1. [98]
    At 7.45 a.m. on 9 April 2010 Yahoo! wrote to Mr Wright again, noting that they would need a signed statement denying involvement with the account as well as a copy of the email (including full internet headers) going out in his name. Again, this did not seem responsive to his complaint because, of course, the complaint was not concerning emails going out in his name.
  1. [99]
    Mr Wright replied (Appendix F document 7) at about 7.45 a.m. on 9 April 2010 that the abuse did not concern abusive emails but identity fraud for the purpose of malicious abuse. He noted that the man was using a variety of aliases on his forum. He repeated that which had been stated in previous email. He asked, “Why haven’t you removed this ID and acted against this abuser?” 
  1. [100]
    Appendix E document 13 appears to be a number of emails from Yahoo! to Mr Wright requesting a faxed statement to Yahoo! Customer Care in California.
  1. [101]
    At 4.18 a.m. on 14 April 2010 (Appendix E document 14), a standard form response from Yahoo! was received by Mr Wright “appreciating a report of possible inappropriate content in Yahoo! profiles”.
  1. [102]
    At 4.54 p.m. on 18 May 2010 Mr Wright wrote to Yahoo! (Appendix F document 8). He noted in this email that Yahoo! had already deleted the profile “Jane Doe from Gladstone”. However, he pointed out he was distressed at the lack of supervision on the site, allowing the person to change their name from “Doe” to “R”, again with [Jane Doe’s], to use this forum to abuse and distress [Jane Doe] and family. He noted, “Unless I constantly check your site, this [abuse] of Yahoo! forums can constantly attack myself (and others) and you do not appear to be doing anything to stop his ongoing activities on your forums.”
  1. [103]
    On or about 29 May 2010 Mr Wright again wrote to Yahoo! noting he had to report the abuse against his daughter and himself on Yahoo!. There was an ID ostensibly of a Brisbane male of the same name and age [as Jane Doe], including a photo of her. This was the third lot of abuse/misrepresentation against [Jane Doe] and himself on Yahoo!. He pointed out that the abuse was being done by Mr Pagett and he pointed out it was distressing that Yahoo! was enabling abuse of his family by this person and was not doing anything to control the malicious activities on its forums.
  1. [104]
    On 31 May 2010 at 6.11 a.m. (Appendix E document 15), Yahoo! wrote to Mr Wright noting that his email had been read and asked for suggestions or comments on ways they could improve their service. It noted that if he was concerned that a particular comment might be in violation of the terms of service he should report the abuse. If he believed [Jane Doe] was being impersonated in a Yahoo! profile, they would need a signed statement from her and provided a fax number in New South Wales.
  1. [105]
    At 2.44 a.m. on 30 May 2010, Yahoo! again wrote to Mr Wright (Appendix E document 16), asking for a signed statement denying involvement with the account.
  1. [106]
    At 8.03 p.m. on 2 June 2010 (Appendix F document 10) Mr Wright wrote to Yahoo! stating that he had already sent the information requested when the abuser listed his ID as “[Jane Doe] of Gladstone” with a photo of her. He pointed out that Mr Pagett only had to change the ID slightly to [AR], using the same photo and engaged in more abuse. He stated, “Surely you should have some mechanism in place to stop this abuse of myself and others.”  He said, “Do you expect me to constantly monitor your forum and repeatedly protest re the abuse because you do not have the appropriate safeguards for a forum of this type?”
  1. [107]
    At 7.21 a.m. on 3 June 2010, Yahoo! wrote to Mr Wright in what seems again to be a form response, noting:  “Thank you for writing to Yahoo! Australia. We would like to assure you that we have investigated your complaint and have taken action per our terms of service. Please understand we are not able to disclose the action taken on another user’s account with a third party. We are unable to make exceptions to this rule.”

Harassing emails

  1. [108]
    At this stage it seems that Mr Pagett sent some harassing emails using a Yahoo! email address to Mr Wright.
  1. [109]
    There is an email (Appendix S) at 6.33 a.m. on 26 June 2010 from [email protected] to [email protected] (Mr Wright’s correct email address) noting:

“I have now blocked you from the emails but you can send your emails to this (my other email address). This is my comedy email address. I contacted the tooth fairy last night re your 25,000 claim against me. She said the three bears would stand as a witness for you, as will Jack and the bean stalk, but we could have a big case because I have asked Laurel and Hardy and Abbott & Costello to be on my side. …  You need to hurry up with this court case as we are going crabbing,  if you have some men in suits pay you a visit don’t fight with them,  they just want to put a white jacket on you and take you to a nice big house. … [Jane] and Lizzie can visit you on weekends and I could even send you a photo of me so you could entertain yourself throwing darts at me. I was just showing my workers your emails to me,. they said cut it out,  they have never laugh so much. …”

  1. [110]
    At 8.40 p.m. on 26 June 2010 Mr Wright wrote to Yahoo!, noting he was again being harassed by Mr Pagett using Yahoo! as a vehicle of abuse. He said that Mr Pagett had set up an email account with Yahoo! using his business name “Wright Publishing”, the email address being “[email protected]”. He pointed out he was the sole owner of Wright Publishing. He pointed out that Mr Pagett was using Yahoo! to attack his family - in particular, [Jane Doe] – setting up at least three false IDs.
  1. [111]
    At about 10.42 p.m. on 28 June 2010 (Appendix F document 12) a similar email was sent by Mr Wright to Yahoo!.
  1. [112]
    At 8.41 p.m. on 29 June 2010, Yahoo! wrote to Mr Wright (Appendix E document 21) thanking him for his correspondence. It was noted:

“After careful evaluation, we have determined that this email did not actually originate from the Yahoo! mail system. It appears that the sender of this message forged the header information to give the impression that it derived from the Yahoo! mail system.”

  1. [113]
    On 15 July 2010 a further email was received from [email protected] by Mr Wright, stating:

“As you can see, I have a new email address. …  In the coming weeks, you will see my new site Kerry Wright  (yes, this is my new name). I will put up a good story about these people (see attachment). Two people can play your game. You will not be a happy person when you read my story. It will have everything about you, Lizzie and the rest of your family, their phone numbers, addresses, etc. …”

  1. [114]
    Attached to the email were various photos of Jane Doe.
  1. [115]
    There was a further email from “[email protected]” to Mr Wright dated 19 July 2010 at 9.17 a.m., stating:  “This is your last chance to remove my name from your site, if not I will proceed with my site ….”  Also there is a statement:  “I know [Jane] will not be a happy little girl when she reads her story.”
  1. [116]
    I should add that Ms Doe in [22] of the further and better particulars alleges Mr Pagett used various other email addresses until 7 April 2013.

Correspondence between Mr Wright and Yahoo!’s corporate counsel

  1. [117]
    It seems that Mr Wright was able to ultimately correspond with Yahoo!’s corporate counsel (Ruth Wong).
  1. [118]
    On 9 July 2010 Mr Wright wrote to Ms Wong (Appendix M) asking her that before they spoke she should read the profiles of the Yahoo! IDs mentioned.
  1. [119]
    In a further email dated 12 July 2010 from Mr Wright to Ms Wong he again pointed out the various false identifications used, all of which published by Yahoo! including  the photograph of Jane Doe.
  1. [120]
    On 12 July 2010 at 4.43 p.m. Ms Wong emailed Mr Wright (Appendix B) stating that Yahoo! would be willing to cooperate provided Mr Wright contacted the police and ask them to serve a warrant on Yahoo! or he initiated proceedings with the local court and served Yahoo! with a court order compelling them to provide him with the information.
  1. [121]
    On 19 July 2010 at 6.07 p.m. Mr Wright wrote to Ms Wong, forwarding a copy of the last mentioned email from Mr Pagett, noting:

“I know he has tried to email me on this matter using his Yahoo! account email address with my business name (Wright Publishing) as I saw it on my server but have his accounts blocked in Outlook Express. Mr Pagett seems to have no difficulty in using Yahoo! to set up accounts to abuse me and now no doubt other family members.”

  1. [122]
    There is a further email from Mr Wright to Ms Wong at 6.40 p.m. on 20 July 2010 noting that he has 40 emails from Mr Pagett on the file.
  1. [123]
    On 21 July 2010 at 6.39 p.m. Mr Wright wrote to Ms Wong, stating that Mr Pagett had used his business name Wright Publishing with the email address “[email protected]”. He forwarded details of the header and presumed Yahoo! would be able to identify who set up the account.
  1. [124]
    Ms Wong by email dated 23 July 2010 at 5.19 p.m. advised that they had taken steps to deactivate all email accounts associated with the user which relate to claims of impersonation. She confirmed it was virtually impossible for them to prevent him from using another computer and setting up a new account with Yahoo! and using a different name.
  1. [125]
    On 23 July 2010 at 6.32 p.m. Mr Wright wrote to Ms Wong and asked whether the identity behind the email accounts was the same as the ID impersonation on Yahoo!7 news.
  1. [126]
    Ms Wong replied at 3.08 p.m. on 26 July 2010 confirming there was a connection between the email accounts and the profile name used on Yahoo!7 news. She noted it was difficult to prevent him from creating new email accounts and setting up similar profile names to post messages on their site.
  1. [127]
    So it may be seen on the evidence that it was ultimately in or about July 2010 that Yahoo! took significant positive steps to deactivate Mr Pagett’s account.
  1. [128]
    Of course as noted earlier some abusive comments were still on the “Spastic legs” profile until February 2011.

Correspondence between Mr Wright and Yahoo! lawyers

  1. [129]
    The plaintiffs refer to correspondence between Addisons and themselves in Appendix A to the further and better particulars.
  1. [130]
    I note that any statement or admission made in connection with the making or acceptance of an offer to make amends is not admissible as evidence (see s 19 of the Defamation Act 1995 (Qld)).

Conclusions on the above

  1. [131]
    The following factual conclusions from the above may be reached on the material so far provided:
  1. (a)
    Mr Pagett misused Jane Doe’s photograph without her consent.
  1. (b)
    Mr Pagett was able to post offensive comments on the Yahoo! website using a false ID without them being removed without complaint.
  1. (c)
    Mr Pagett was able after complaint to change the ID but still use the same profile photo.
  1. (d)
    It was only after the involvement of the Yahoo! corporate counsel in July 2010 (4 months after the first complaint) that Yahoo! deactivated all accounts and emails associated with the user.
  1. (e)
    Despite this the “Spastic legs” site continued until February 2011 (about 12 months) although it is unclear how many people would have seen this.
  1. (f)
    It is clear the comments using Jane Doe’s name and photograph were more sustained and more serious than those involving Mr Wright.
  1. (g)
    There appears to have been no screening and deletion of the offensive comments by Yahoo! prior to the complaints.
  1. (h)
    It does not seem in my judgment that Yahoo! engaged in any intentional conduct. Yahoo!’s systems and its response may have been inadequate but this is a far cry from intention.
  1. (i)
    Mr Pagett on the other hand would have intended his conduct.
  1. [132]
    It seems to me on the material available that the conduct of Mr Pagett may have breached a number of statutes:
  1. (a)
    Section 474.17 of the Criminal Code 1995 (Cth) - using a carriage service to menace harass or cause offence.
  1. (b)
    Section 359B of the Criminal Code 1899 (Qld) - unlawful stalking.
  1. [133]
    It is also possible publication of the material constitutes:
  1. (a)
    Sexual harassment of Jane Doe contrary to s 28G of the Sex Discrimination Act 1984 (Cth) (s 105 appears to extend liability.)
  1. (b)
    Disability discrimination of Jane Doe contrary to ss 39 and 44 of the Disability Discrimination Act 1992 (Cth) (ss 122 and 123 appear to extend liability).

Yahoo! terms of service

  1. [134]
    Mr Wright has also presented the terms of service of the Yahoo! site (Appendix K).
  1. [135]
    These terms of service note that a member agrees not to use the service to upload, post, email, transmit or otherwise make available any content that is “unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libellous, invasive of another’s privacy, hateful or racially, ethnically or otherwise objectionable.” (paragraph 3)
  1. [136]
    There is also a prohibition on impersonating another person. It was also acknowledged that Yahoo!7 may or may not pre-screen content.
  1. [137]
    Paragraph 14 notes that Yahoo!7 may under certain circumstances immediately terminate a Yahoo!7 account and any associated email address.
  1. [138]
    This implies that Yahoo! had the power/technology to close down Mr Pagett’s accounts and associated Yahoo! email addresses. Presumably it could block access from a particular IP address used by him.

Psychological distress

  1. [139]
    It is clear there is evidence both Plaintiffs have suffered emotionally.
  1. [140]
    Mr Wright has tendered a psychological report from Dr Marilyn Fisher, psychologist, dated 4 June 2013.
  1. [141]
    She states that:

“Mr Wright presents as a 66 year old man who is exhibiting symptoms of severe depression and anxiety. When he completed the depression, anxiety and stress scale, the results indicated that he was functioning in the extremely severe range for depression and anxiety and a moderate level of stress symptoms. Mr Wright describes himself over the past year as being very lethargic, frequently weepy, poor sleep hygiene and occasional suicidal ideation. Since the harassment of [Jane Doe] commenced by this individual, he is spending most of his days focussed on these issues to the detriment of other activities in his life.”

  1. [142]
    Dr Grady Baccus, a psychologist, has provided a report with respect to Jane Doe dated 23 October 2012. He confirms that he has been treating Jane since 9 May 2012.

“She suffers from major depression and ongoing anxiety. Her condition has impaired her concentration and attention. Her sleep has been disturbed and she finds it difficult to focus at times. [Jane] has long-term impairment …. Her symptoms followed an invasion of privacy by a man who used her identity on the internet. Over a few months’ period of time [Jane] developed symptoms of post‑traumatic stress syndrome involving intrusive memories of the harassment by this individual. Sexual comments were unjustly attributed to her and displayed in a public forum by the website. Her embarrassment led to intense stress and panic attacks, as well as frequent nightmares. She tries to avoid any situations that remind her of this ordeal. As a result she is not mentally or emotionally capable of defending herself or representing herself in court.”

The Claims

  1. [143]
    The Claim with respect to Jane Doe brings actions against Yahoo! for:
  1. (a)
    breach of confidence;
  1. (b)
    negligence “as per the Civil Liability Act 2003”;
  1. (c)
    misleading conduct as per the Fair Trading Act 1989 (Qld);
  1. (d)
    misleading conduct as per the Customer and Consumer Act 2010;
  1. (e)
    intentional infliction of emotional distress.
  1. [144]
    Ms Doe fails to bring any action against Mr Pagett for reasons which are unexplained.
  1. [145]
    The Claim for Mr Wright brings actions against Mr Pagett and Yahoo! for:
  1. (a)
    negligence “as per the Civil Liability Act 2003”;
  1. (b)
    misleading conduct as per the Fair Trading Act 1989 (Qld);
  1. (c)
    misleading conduct as per the Customer and Consumer Act 2010;
  1. (d)
    intentional infliction of emotional distress;
  1. (e)
    invasion of privacy.
  1. [146]
    In the proposed Amended Statement of Claim for Ms Doe it is proposed that a claim for breach of privacy be added.

The Defendants’ material

  1. [147]
    The affidavit of Ms Munsie discloses that Jane Doe commenced proceedings in the Brisbane Supreme Court on 11 February 2011. The Claim brought in the Supreme Court was in effect a claim for defamation.
  1. [148]
    On 19 May 2011 Peter Lyons J made the following orders with respect to the Claim and Statement of Claim:
  1. (a)
    the Plaintiff have leave to file the Amended Claim and Statement of Claim;
  1. (b)
    parts of the Claim and Statement of Claim be struck out;
  1. (c)
    the court directed the Plaintiff amend the pleading to identify the acts of the first Defendant said to constitute its publication of the material the subject of the Claim, and the Plaintiff was to specifically plead any allegation of malice in accordance with r 150(1) of the UCPR.
  1. [149]
    Nothing further occurred until 13 April 2012 when the Plaintiff filed an application to amend her Claim and Statement of Claim.
  1. [150]
    On 3 May 2012 the Plaintiff’s application was heard by Douglas J. Douglas J dismissed the application and order the Plaintiff to pay Yahoo!7’s costs of and incidental to the application.
  1. [151]
    His Honour ruled that the pleading was not such as was intended by the rules of court or could be used as a basis for running an action in the court. It was a very confusing document.
  1. [152]
    The main problems were prolixity, lack of organisation and inappropriateness to be used as a vehicle for litigation.
  1. [153]
    These comments equally apply to the pleadings in this case.
  1. [154]
    On 13 July 2012 Ms Doe commenced a new proceeding in the Gladstone Registry of the District Court against Yahoo!7.
  1. [155]
    The Claim (tab 13 to Exhibit JMM1) was for invasion of privacy. On 2 November 2012 Yahoo!’s application to strike out the Plaintiff’s Claim and Statement of Claim was successful before his Honour Koppenol DCJ, and the Plaintiff was ordered to pay Yahoo!7’s costs of the application and proceedings to date.
  1. [156]
    Ms Munsie points out that the Plaintiff Jane Doe is represented by Mr Kerry Wright in proceeding D2/13, and he has commenced separate proceedings in his own name (D3/13).
  1. [157]
    In argument before this court, Mr Anderson, on behalf of Yahoo!, took no point that there was any abuse of process by the issuing of the proceedings D2/13 and D3/13.
  1. [158]
    Yahoo!’s primary submission is that there is insufficient evidence to ground any of the causes of action brought by Jane Doe or Mr Kerry Wright.
  1. [159]
    It is therefore necessary to analyse each of the causes of action brought.

Breach of confidence

Submissions

  1. [160]
    Both Plaintiffs have brought an action for breach of confidence.
  1. [161]
    Yahoo! submits that if a claim for breach of confidence exists, then such claims concern allegations that information has been obtained covertly about the private lives of a Plaintiff made public without authority.
  1. [162]
    Yahoo! relies on Campbell v MGN Ltd [2004] 2 AC 457 and Douglas v Hello! Ltd [2006] QB 125. Yahoo! points out that the Statement of Claim makes clear (for example [15](d)) that the information here was put into the public domain by Jane Doe. It is submitted that this is not a case in which the Defendants have obtained information that is confidential to Ms Doe and have sought to use it for their benefit. It is a case in which others have published the material on a platform managed by Yahoo!, but the point is that she herself made aspects of her life public i.e. the photograph. Yahoo! acknowledges there is a debate as to the effect of this as a defence (see for example Earl v Nationwide News Pty Ltd [2013] NSWSC 839).
  1. [163]
    The Plaintiffs submit that the material was not in the public domain. It is submitted the “public domain” defence was rejected in Doe v Australian Broadcasting Corporation & Ors [2007] VCC 281 at [101] to [137].
  1. [164]
    The Plaintiffs submit that the cause of action is available here.

Consideration

  1. [165]
    In ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 the High Court was concerned with a case where trespassers filmed activities in the Respondent Plaintiff’s possum processing factory and the film was published on the ABC. The Plaintiff failed in its application for an injunction. The Plaintiff had alleged it was unconscionable and a breach of confidence for the ABC to publish the film.
  1. [166]
    Gleeson CJ noted that it was not alleged the ABC contravened any statute. He noted that the film did not belong to the Respondent. His Honour accepted that where a photographic image is illegally or improperly or surreptitiously obtained (where it is private) then this may constitute a breach of confidential information (see [34]).
  1. [167]
    His Honour held that a useful practical test of whether something is private is whether the disclosure or observation of the information or conduct would be highly offensive to a reasonable person of ordinary sensibilities (see [42]).
  1. [168]
    Kirby J (who agreed with the majority but for other reasons) held that it would be wrong to hold that a superior court did not have the power to restrain a media defendant from broadcasting illegally acquired material (see [182]).
  1. [169]
    Callinan J in dissent held that once the ABC came into possession of the film, the Appellant and the Respondent came into a relationship of confidence (see [296]).
  1. [170]
    In Campbell v MGN Ltd [2004] 2 AC 457 Naomi Campbell had volunteered information publicly to the media about her private life but untruthfully said she did not take drugs. She was photographed leaving a drug therapy group. The Plaintiff sought damages for breach of confidentiality.
  1. [171]
    The House of Lords found by majority for Ms Campbell.
  1. [172]
    Lord Hope noted at [83] that a duty of confidence will arise whenever the party alleged to be subject to the duty “knows or ought to reasonably know that the other person can reasonably expect his privacy to be protected.”
  1. [173]
    Lord Hope at [94] considered that the test proffered by Gleeson CJ in Lenah Game Meats to be useful in cases where there was room for doubt.
  1. [174]
    Baroness Hale noted at [135] that “an objective reasonable expectation test” is much simpler and clearer than the Gleeson CJ test, noting that in Australia there were no protections like to European Convention on Human Rights. Her Ladyship thought that Gleeson CJ did not intend his test to be the only test (see [136]).
  1. [175]
    Lord Carswell considered it was not necessary to employ the Gleeson CJ test (see [166]. His Lordship thought “it is sufficiently established by the nature of the material that it was private information which attracted the duty of observing the confidence in which it was imparted to the respondents.”
  1. [176]
    In Douglas v Hello! Ltd [2006] QB 125 Michael Douglas and Catherine Zeta-Jones were to be married. They entered into an agreement with a magazine granting it exclusive rights to publish photographs of the wedding. A freelance photographer infiltrated the wedding and took photographs. He sold the right to publish these photographs to the first defendant. The plaintiffs sought damages and a perpetual injunction for breach of confidence.
  1. [177]
    The Court of Appeal dismissed the publisher’s appeal against the finding of liability for breach of confidence.
  1. [178]
    The court at [105] noted that in general once information is in the public domain it will no longer be confidential, although this not always true. The court held with the publication of photographs, there may be “a fresh intrusion of privacy when each additional viewer sees the photograph and even when one who has seen a previous publication of the photograph is confronted by a fresh publication of it.”
  1. [179]
    Doe v Australian Broadcasting Corporation & Ors [2007] VCC 281 concerned a matter where the Plaintiff had been attacked and raped by her husband. The identity of the accused, the Plaintiff and the details of the offences were published on ABC news. This breached s 4(1A) of the Judicial Proceedings Report Act 1958 (Vic).
  1. [180]
    It was held by Judge Hampel that the law of defamation did not cover the field ([64]).
  1. [181]
    On the issue of confidence the Defendants argued that there was no breach of confidence as they did not owe a duty of confidence and the information lost its confidentiality before the broadcasts ([102]).
  1. [182]
    Judge Hampel noted that breach of confidence was a developing area of law and the boundaries may change to reflect changes in society, technology and business practice ([105]).
  1. [183]
    With reference to Campbell v MGN Ltd [2004] 2 AC 457 it was noted that the need for an initial confidential relationship had changed ([107).
  1. [184]
    The fundamental basis of such an action is the protection of “human dignity” ([109]).
  1. [185]
    Her Honour, with reference to Gleeson CJ in Lenah Game Meats where his Honour held “disclosure or observation of information or conduct [which] would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private” stated:

“The essence of what is protected is not highly offensive information or information which has the capacity to reflect discreditably on the person to whom it relates, but highly offensive behaviour, namely publication of information which would generally be regarded as sufficiently personal or confidential to give the person to whom it relates an expectation that it not be disclosed or published without their consent.” ([115]).

  1. [186]
    At [120] her Honour noted that the fact that others were aware of the information about Ms Campbell did not rob it of its private or confidential nature. “It was not whether Ms Campbell’s attendance at NA was known to others, but the personal nature of the information, her right as the person to whom it related to keep it confidential, in the sense of private, and to decide to whom and in what circumstances it should be communicated which the Court found were the determinants of whether the information was to be regarded as confidential ([120]).
  1. [187]
    The statute was an important factor in reaching a determination that the action was available (see [126]).
  1. [188]
    Giller v Procopets (2008) 24 VR 1 was a case where the Respondent without the consent of the Appellant distributed tape of them having sex. She had consented to some of the films but not all of them.
  1. [189]
    All Judges accepted that equitable damages for breach of confidence were available to the Plaintiff.
  1. [190]
    Neave JA at [428] held that the essence of the case if where the Plaintiff has been embarrassed by the exposure of private information.
  1. [191]
    In Earl v Nationwide News Pty Ltd [2013] NSWSC 839 White J considered a situation where the defendant had published details of medical treatment received by the Plaintiff (a professional footballer). An interlocutory injunction had been granted restraining the Defendant from using or disclosing information concerning his medical treatment. An employee of the defendant had copies of accounts from the Plaintiff’s doctor.
  1. [192]
    The Defendants had argued that the Plaintiff’s confidential information had passed into the public domain such that equity should not intervene to extend the injunction.
  1. [193]
    White J at [26] held that he did not consider that the principles concerning the deprivation of a Plaintiff of an equitable remedy because material had passed into the public domain were settled.

Conclusion

  1. [194]
    In this case it is clear that Ms Doe was interviewed and her photograph was published for The Observer article.
  1. [195]
    There is also a suggestion the photograph was on Facebook although I could not find evidence of this in the material.
  1. [196]
    It is my opinion that an action for breach of confidence is a developing area of law. There is certainly a debate about whether the fact that an item is in the public domain provides a defence to such an action.
  1. [197]
    There is no doubt that whilst Ms Doe agreed for her photo to be used for The Observer story she certainly did not agree to Mr Pagett using the photo, assuming her identity and then making the comments he did on the Yahoo! website.
  1. [198]
    It may be argued that the misuse of the photograph and information about Ms Doe constituted a breach of confidence in that the information was converted into something which was offensive without her consent.
  1. [199]
    I note that Rhind J in the Hong Kong Court of First Instance in Li Yau Wai v Genesis Films Ltd [1987] HKLR 711 (CFI) granted damages and issued an injunction where the plaintiff had allowed his photograph to be taken for one purpose and the defendant used it without the Plaintiff’s consent for another.
  1. [200]
    There may be an argument available to the Plaintiffs that between March 2010 and perhaps July 2010 (when Ms Wong appears to have achieved a closedown of Mr Pagett’s email addresses) that there was a breach of confidence by Yahoo! such that damages might be recoverable for a four month period or even the 12 month period or so concerning the “Spastic Legs” profile.
  1. [201]
    I obviously do not express any concluded view about this topic, but it seems to me, in light of the uncertain state of the law and possible arguments available, it is inappropriate to strike out the claims concerning breach of confidence.

Negligence

Submissions

  1. [202]
    Yahoo! submits that the claim for negligence does not plead any facts designed to show that a relationship existed between the Plaintiff and the Defendants sufficient to give rise to a duty of care. It is submitted that no such duty is pleaded in any event nor are any grounds set out upon which negligence is asserted (except as broadly stated in [12] and [18] of Ms Doe’s Statement of Claim). It is submitted that the most informative way Yahoo! was “negligent as per the Civil Liability Act 2003” ([28] of the Statement of Claim), a proposition which cannot be correct because “the Act does not create or confer any cause of civil action for the recovery of damages.”
  1. [203]
    On the other hand, the Plaintiffs submit that the Defendants had a duty of care not to harm the Plaintiffs. The Plaintiffs rely on the decision of Hampel J in Doe v Australian Broadcasting Corporation (supra) at [82]-[100] where it is submitted the court found there is a duty of care owed by a publisher not to cause psychiatric injury as a result of negligent publication of information. It is submitted that the duty was strengthened when the Defendants were notified twice on 17 March 2010 and subsequently by email on the facts that the Plaintiffs were subject of the abuse by Mr Pagett. It was further strengthened when further notification occurred on 18 March 2010. It is therefore submitted that there was a duty of care owed by the publisher to the Plaintiffs.

Consideration

  1. [204]
    The High Court in Tame v NSW; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317 had cause to consider the circumstances in which a duty of care might be owed to avoid psychiatric injury. The following was noted:
  1. (a)
    Gleeson CJ considered that a necessary although not sufficient condition for the existence of the duty of care is reasonable foreseeability of the kind of injury that has been suffered by the person to whom the duty is owed ([12].
  1. (b)
    Gaudron J held that damages are recoverable only for a recognisable psychiatric injury and not for emotional distress ([44)]. Her Honour said at [46] that a duty is only owed to those who are “so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question.”  Her Honour held that the rule was extended in Jaensch v Coffey to people in a “close and intimate” relationship with another who has been negligently injured or killed although not present at the scene.
  1. (c)
    McHugh J held at [71] that absent a pre-existing relationship or knowledge of a Plaintiff’s susceptibility to suffering nervous shock a Defendant only owes a duty of care where the Defendant ought reasonably to have had the Plaintiff or persons in his position in mind when contemplating acting or failing to act.
  1. (d)
    Gummow and Kirby JJ held at [200] that the criterion is one of reasonable foreseeability. Liability is imposed for consequences which the Defendant (judged by the standards of the reasonable man) ought to have foreseen.
  1. (e)
    Hayne J held that foresight of harm was not enough to establish the existence of the duty of care ([250]). There must be features of the facts which sufficiently establish a relationship warranting a finding of the existence of a duty of care ([263]). Unless the Defendant knew or ought reasonably have known that a want of reasonable care may injuriously affect a person whom the Defendant knew or ought to have known was abnormally sensitive then there is no duty.
  1. (f)
    Callinan J at [336] held that foreseeability alone was not sufficient. The relationship of proximity was crucial (see [357]).
  1. [205]
    In Doe v Australian Broadcasting Corporation & Ors (supra) the Defendants argued that no duty of care arose as there was not a sufficient relationship between the parties as to give rise to the duty of care; and public policy considerations pointed against the finding of such a duty.
  1. [206]
    Judge Hampel concluded there was a relationship between the Plaintiff and the Defendants other than as a broadcaster and member of the public ([92].
  1. [207]
    The relationship was one where the publisher had an obligation to comply with the law.
  1. [208]
    In terms of reasonable foreseeability, her Honour noted that there was evidence placed before the court as to any training or procedures as to ensure there was compliance with the law ([96]).

Conclusion

  1. [209]
    Section 7(1) of the Civil Liability Act 2003 (Qld) (“CLA”) provides that the Act does not create or confer any cause of civil action. To that extent the claim is misconceived.
  1. [210]
    Other provisions of the CLA may be relevant. The Plaintiffs will need to give consideration to the application of:
  1. (a)
    ss 9 and 10 CLA when pleading as to the duty of care.
  1. (b)
    ss 11 and 12 CLA when pleading as to causation.
  1. (c)
    Chapter 3 CLA regarding the assessment of damages. In particular the abolition of exemplary, punitive or aggravated damages.
  1. [211]
    It seems to me that it is possible for the Plaintiffs to plead a relationship involving their vulnerability (see Woolcock Street Investments Pty Ltd v CDG Pty Ltd and Anor (2004) 216 CLR 515).
  1. [212]
    It may be difficult for the Plaintiffs to establish that such duty was owed prior to complaints made by them as to publication.
  1. [213]
    They may be on stronger ground after the complaints were made on 17 and 18 March 2010.
  1. [214]
    It also seems that it would be very difficult for Mr Wright to establish as cause of action that he was injured as a result of Ms Doe’s injury. It may be difficult for him to establish psychiatric injury.
  1. [215]
    Once complaints had been made it seems to me that this would provide evidence that a relationship of proximity existed such that a duty of care owed. The Plaintiffs could be said to be sufficiently vulnerable at that stage.
  1. [216]
    It seems to me, based on what Judge Hampel stated in Doe v Australian Broadcasting Corporation & Ors (supra), if properly pleaded there might be a case in negligence as against the publisher.
  1. [217]
    Of course, any such pleading would need to allege the material facts giving rise to the duty of care; the circumstances of the breach of the duty and the damages which resulted from such breach.

PIPA

  1. [218]
    Another issue, though, is the issue as to whether the provisions of the Personal Injuries Proceedings Act 2002 (Qld) (“PIPA”) needed to be complied with prior to the issue of the proceedings.

Submissions

  1. [219]
    Further written submissions were provided by Yahoo! on 29 July 2013 and 2 August 2013 and by the Plaintiffs on 2 August 2013 and 5 August 2013.
  1. [220]
    Yahoo! in its written submissions dated 29July 2013 submitted that PIPA applies to this action.
  1. [221]
    Yahoo! submitted that the decision in Martens v Stokes and Anor [2013] 1 Qd R 136 applies. It submits that none of the exclusions set out in s 6(4) of PIPA apply. It is submitted there has been no waiver under s 18 of PIPA. 
  1. [222]
    Yahoo! in further written submissions submits that no notice under s 9 of PIPA has been given; s 7 of PIPA makes this a substantive law and therefore the claim should be struck out.
  1. [223]
    On the other hand the plaintiffs submitted that:
  1. (a)
    Yahoo! cannot rely on PIPA because they have failed to file a conditional notice to defend (see UCPR r 144).
  1. (b)
    Yahoo! has waived its position.
  1. (c)
    Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364 applies.
  1. (d)
    The failure to comply with pre-litigation procedures was an “irregularity”.
  1. (e)
    In the circumstances the plaintiffs may proceed with their actions.

Consideration

  1. [224]
    In Martens v Stokes and Anor [2013] 1 Qd R 136 the Court of Appeal held that PIPA applied to the appellant’s claim for physical, emotional, psychological and financial injury as against the Australian Federal Police and the Commonwealth of Australia arising from an alleged negligent/malicious police investigation. The Statement of Claim was struck out because of non compliance with PIPA in respect of the claim for personal injuries. However it is to be noted the court did not refer to the decision of Berowra Holdings. 
  1. [225]
    In Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364 the High Court held that the failure to comply with the provisions of the Workers Compensation Act 1987 (NSW) was an irregularity as distinct from a nullity. It was held that proceedings commenced by a worker in contravention of s 151C engaged the jurisdiction of procedural rules of the court in question. “Such proceedings are vulnerable to an application by the defendant to strike out the initiating process would a move for summary dismissal, but they are not a nullity.” (see [36]).
  1. [226]
    In Phipps v Australian Leisure and Hospitality Group [2007] 2 Qd R 555 the Court of Appeal considered an appeal where the trial judge had struck out the plaintiff’s action where there was non-compliance with the pre-court provisions of the Workers Compensation and Rehabilitation Act 2003 (Qld). As with PIPA, s 235 of that Act provided that the relevant provisions were provisions of substantive law. Keane JA after noting that the action was not a “nullity” said at [14] “accordingly, the appellant’s non-compliance with s 275 of the Act in the present case did not mean that it was inevitable that her action should be dismissed.” (also see Hamling v Australia Meat Holdings Pty Ltd (No 2) [2007] 1 Qd R 315.) 
  1. [227]
    The District Court of Queensland has considered the effect of Berowra Holdings in two cases.
  1. [228]
    In Boulter v Batten & Anor [2010] QDC 56, Dorney QC DCJ was concerned with an application to strike out a Claim and Statement of Claim for want of compliance with the Motor Accident Insurance Act 1994 (“MAIA”). In that case the defendants had filed a conditional notice of intention to defend. Dorney QC DCJ noted that in Horinack v Suncorp Metway Insurance Ltd [2001] 2 Qd R 266 it was held that where there was non-compliance with s 37 of the MAIA this meant that the originating process was a nullity. However his Honour also examined Berowra Holdings and Hamling v Australia Meat Holdings Pty Ltd [No 2] [2007] 1 Qd R 315.
  1. [229]
    His Honour ultimately held at [16] that in light of Berowra Holdings “the law in Queensland must clearly be that the relevant non compliance in this proceeding does not lead to a nullity, but rather engages the relevant procedural remedies.”
  1. [230]
    McGill SC DCJ in Walker-Eyre v Emirates [2012] QDC 364 considered an application by Emirates to strike out a claim on the basis of non-compliance with PIPA. His Honour ultimately held that PIPA did not apply to proceedings brought under the Civil Aviation (Carrier’s Liability) Act 1959 (Cth).
  1. [231]
    His Honour then considered the situation if PIPA did apply. His Honour concluded that the action would not have been a nullity but the action should be stayed until there was compliance with Chapter 2 Part 1 of PIPA (see [54]-[56]).  

Conclusion

  1. [232]
    In my opinion PIPA does apply to the claims for damages for personal injuries.
  1. [233]
    Section 6(1) of PIPA provides “This Act applies in relation to all personal injury arising out of an incident whether happening before, on or after 18 June 2002.”
  1. [234]
    The term “incident” is defined in the dictionary as:

“in relation to personal injury, means the accident, or other act, omission or circumstance, alleged to have caused all or part of the personal injury.”

  1. [235]
    The dictionary defines personal injury as:

“personal injury includes—

  1. (a)
    fatal injury; and
  1. (b)
    prenatal injury; and
  1. (c)
    psychological or psychiatric injury; and
  1. (d)
    disease.”
  1. [236]
    In my opinion the claims by the Plaintiffs may fall within psychological and psychiatric injury.
  1. [237]
    Of course Yahoo! took no point in its defence that the pre-action procedures had not been undertaken.
  1. [238]
    Rule 144 UCPR provides inter alia that:
  1. “(2)
    A defendant who proposes to challenge the jurisdiction of the court or to assert an irregularity must file a conditional notice of intention to defend…
  1. (7)
    A defendant who files an unconditional notice of intention to defend is taken to have submitted to the jurisdiction of the court and waived any irregularity in the proceeding.”
  1. [239]
    Section 7(1) of PIPA provides that the provisions of Chapter 1 Part 1, Divisions 1, 1A, 2 and 4 are provisions of substantive as opposed to procedural law.
  1. [240]
    Section 9(1) PIPA provides that:
  1. “(1)
    Before starting a proceeding in a court based on a claim, a claimant must give written notice of the claim, in the approved form, to the person against whom the proceeding is proposed to be started.”
  1. [241]
    Importantly s 18 of PIPA provides that:
  1. “(1)
    A claimant’s failure to give a complying part 1 notice of claim prevents the claimant from proceeding further with the claim unless—
  1. (b)
    the respondent has waived compliance with the requirement; or
  1. (c)
    the court, on application by the claimant—
  1. (i)
    declares that the claimant has remedied the noncompliance; or
  1. (ii)
    authorises the claimant to proceed further with the claim despite the noncompliance.
  1. (2)
    An order of the court under subsection (1)(c) may be made on conditions the court considers necessary or appropriate to minimise prejudice to a respondent from the claimant’s failure to comply with the requirement.”
  1. [242]
    It is my opinion based on the decision of Berowra Holdings Pty Ltd v Gordon that the failure to comply with the pre-action procedures in PIPA amounts to an irregularity. In this case Yahoo! failed to file a conditional notice of defence. There is a positive requirement to do so if the PIPA point was to be taken.
  1. [243]
    In those circumstances it is my opinion that the point may not now be taken.
  1. [244]
    However it my view the pre-action procedures contained in PIPA are very important steps to be undertaken in an action such as the present.
  1. [245]
    Section 4 of PIPA provides:

“4  Main purpose

  1. (1)
    The main purpose of this Act is to assist the ongoing affordability of insurance through appropriate and sustainable awards of damages for personal injury.
  1. (2)
    The main purpose is to be achieved generally by—
  1. (a)
    providing a procedure for the speedy resolution of claims for damages for personal injury to which this Act applies; and
  1. (b)
    promoting settlement of claims at an early stage wherever possible; and
  1. (c)
    ensuring that a person may not start a proceeding in a court based on a claim without being fully prepared for resolution of the claim by settlement or trial; and
  1. (d)
    putting reasonable limits on awards of damages based on claims; and
  1. (e)
    minimising the costs of claims; and
  1. (f)
    regulating inappropriate advertising and touting.”
  1. [246]
    In the circumstances I stay the actions until such time as the provisions of Chapter 2 Part 1 of PIPA are complied with.

Intentional infliction of emotional distress

Submissions

  1. [247]
    Yahoo! submits that the claim under this heading will not succeed because of that which is stated in Giller v Procopets (2008) 24 VR 1. It was further submitted in oral submissions there is no evidence of intentional infliction of emotional distress.
  1. [248]
    The Plaintiffs submit that it is well established in Australia that a Plaintiff who has been harmed and has suffered a psychiatric illness as the result of actions by a Defendant may recover damages (see Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 and Tame v NSW (2002) 211 CLR 317). It is submitted that in those circumstances such an action is available.

Consideration

  1. [249]
    In Grosse v Purvis [2003] QDC 151 Skoien SDCJ held that the essence of this tort was the wilful act or statement of another person calculated to cause physical harm to another. Mere distress was insufficient. There needed to be an injury to mental health e.g. post traumatic stress disorder (see [452] and [454]).    
  1. [250]
    In Giller v Procopets (supra) as noted above the Respondent deliberately distributed the videos. Maxwell P noted at [5] that as a matter of principle compensatory damages for mental distress should be recoverable in a case of intentional conduct.
  1. [251]
    Ashley JA thought there may be such a tort ([154] whilst Neave JA found it unnecessary to decide the point ([471]).
  1. [252]
    But clearly that was a case involving intentional conduct.

Conclusion

  1. [253]
    In my opinion there is a case against Mr Pagett for this cause of action.
  1. [254]
    On the other hand I do not consider there is such an action available against Yahoo!.
  1. [255]
    In my opinion, the cases relied upon by the Plaintiffs are not to the point. In this case, there is insufficient evidence to determine there was an intentional infliction of emotional distress on the Plaintiffs as distinct from Yahoo! acting negligently or incompetently or having insufficient systems to prevent Mr Pagett from acting as he did. I do not believe there are sufficient facts which would enable the court to determine that this tort could be made out.
  1. [256]
    I therefore dismiss this claim as against Yahoo!.

Fair Trading Act 1989 (Qld)

  1. [257]
    There is a claim for misleading conduct pursuant to the Fair Trading Act 1989 (Qld) (“FTA”) (reprint 7G).
  1. [258]
    Section 38 of the FTA at the relevant time reflected s 52 of the Trade Practices Act 1974 (Cth) prohibiting misleading or deceptive conduct.
  1. [259]
    Ms Doe in her Statement of Claim at [32] alleges that the terms of service mislead her into thinking she had no valid legal cause of action against the perpetrator. Further at [33] she alleges that the terms of service mislead her by stating or implying that persons registered did not register anonymously. Similar allegations are made in Mr. Wright’s Statement of Claim (see [56] and [57]).
  1. [260]
    In my opinion it is not possible to link any provisions of the terms of service to any misleading statement as pleaded. Further it would not be possible to prove reliance and consequent damage.
  1. [261]
    There are a number of further hurdles to an action under the FTA.
  1. [262]
    First in order to recover damages the plaintiff needs to be a consumer (ss 99 and 100 FTA). The term consumer is defined in s 6 FTA. There is no evidence that there was any contractual arrangement between Yahoo! and the plaintiffs such that the plaintiffs were consumers.
  1. [263]
    Second to be a part to misleading or deceptive conduct Yahoo! needed to have aided and abetted or have been knowingly concerned in the conduct. The key issue is one of “knowledge.” (see s 5F FTA).
  1. [264]
    A person cannot be convicted of aiding or abetting a contravention unless they know an offence has been committed (see Yorke v Lucas (1983) 49 ALR 672.)
  1. [265]
    In seems clear on the evidence Yahoo!, once it became aware of the conduct attempted to do something about the material albeit unsuccessfully to start with.
  1. [266]
    It is my view that although it may be argued that Yahoo! was negligent, it cannot be said that Yahoo! intentionally aided Mr Pagett.
  1. [267]
    Third I do not consider that the Plaintiffs can establish that Mr Pagett was the agent of Yahoo! (see s 95 FTA).
  1. [268]
    In my opinion, there is no cause of action available here.
  1. [269]
    I therefore dismiss this claim.

Competition and Consumer Act 2010 (Cth) (“CCA”)

  1. [270]
    Yahoo! submits that the basis of this claim appears to be that the Defendant’s terms of service had not been adhered to and these have somehow “misled” the Plaintiff into “thinking she had no valid cause of legal action” and “into the belief that persons registering could be quickly identified” (see [34] and [35]). It is submitted that such a claim is “a nonsense”.
  1. [271]
    The basis of this claim is set out at [259] of this decision.
  1. [272]
    For the reasons set out at [260] I do not consider the claim is justified.
  1. [273]
    As with the FTA claim it seems to me that there are a number of further difficulties with a claim for misleading and deceptive conduct.
  1. [274]
    It must first be appreciated that the CCA commenced on 1 January 2011. The Trade Practices Act 1974 (Cth) (“TPA”) was the governing legislation at the relevant time.
  1. [275]
    Section 52 of the TPA prohibited a corporation from engaging in conduct which is misleading or deceptive conduct in trade or commerce.
  1. [276]
    Firstly and most importantly, it seems clear that the person engaging in such conduct was Mr Pagett and not the Defendants here.
  1. [277]
    In order to “rope in” Yahoo! the Plaintiffs would need to prove that Yahoo! was knowingly involved in the contravention under s 75B TPA (see York v Lucas (supra)). It seems to me that on the material Yahoo! may have acted negligently or incompetently but it cannot be proved that they were knowingly involved in any contravention by Mr Pagett.
  1. [278]
    Second the conduct here was by Mr Pagett who was not an agent of the corporation (s 84 TPA).
  1. [279]
    It would not be possible to find the corporation vicariously liable on the material.
  1. [280]
    I therefore dismiss this claim.

Breach of privacy

  1. [281]
    This action at this point only relates to Mr Wright’s claims as Koppenol DCJ has struck out Jane Doe’s claim under this head.

Submissions

  1. [282]
    It is submitted by Yahoo! that the claim for breach of privacy has no prospect of success. It is submitted there is no binding authority establishing at common law cause of action of this kind (see, for example, John Fairfax Publications v Hitchcock (2007) 70 NSWLR 484 at 515). It is submitted that there is no applicable statute recognising such a claim. It is submitted it is not a developing area of the law. It is submitted there are only two Australian cases in which such an action was established. Both decisions are in inferior courts. Neither has been followed in higher courts. In any event, both cases involved distinctively different facts. In Grosse v Purvis [2003] QDC 151, Skoien DCJ at [444] et seq set out the four principles on which such an action might exist, noting that the acts complained of must be willed in the sense that the person committing the act must do so intentionally. It is submitted no such allegation is made against Yahoo! here.
  1. [283]
    The second example is Doe v Australian Broadcasting Corporation & Ors [2007] VCC 281. It is pointed out that in that case there was publication of personal information which was prohibited by the Judicial Proceeding Reports Act 1958 (Vic). This is not such a case here. Neither case has been followed or applied since then.
  1. [284]
    It is submitted that, to the extent the claim for damages is for a failure to “pre-screen” comments, the Defendants have a complete defence available to them (see cl 91 of Schedule 5 of the Broadcasting Services Act 1992 (Cth)).
  1. [285]
    The Plaintiffs in response submit that certainly insofar as a defamation action is concerned there is no defence of innocent dissemination (Trkulja v Yahoo! Inc LLC & Anor [2012] VSC 88 and Trkulja v Google Inc LLC & Anor [2012] VSC 533). It is submitted that Yahoo! had editorial control over the comments and over users submitting comments to them. Only those people who agreed to the terms of service were selected. The Plaintiffs rely on the New York decision of Stratton Oakmont Inc v Prodigy Services Co.,1995 WL 805178 (N.Y Sup., Dec. 11. 1995).
  1. [286]
    It is submitted that they decided not to exert full editorial control, which is no defence (Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574). The Plaintiffs also rely on Godfrey v Demon Internet Ltd [1999] EWHC QB 244. It is submitted that the decision of John Fairfax v Hitchcock (supra) does not help the Defendants. It is submitted that ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [132] per Gummow and Hayne JJ and [335] per Callinan J suggests that there may be such a tort. The Plaintiffs rely on Grosse v Purvis and noted that Skoien DCJ said that he would not rule out negligence (see [446]).
  1. [287]
    The case of Doe v Australian Broadcasting Corporation & Ors (supra), a case similar to the Plaintiff’s case, is also relied upon. The Plaintiffs also relies on Gee v Burger [2009] NSWSC 149, where McLaughlin J stated that such a tort was arguable (see [53] and [55]).
  1. [288]
    The Plaintiffs also rely on Kalaba v Commonwealth of Australia [2004] FCAFC 763, which they submit would lead one to the conclusion that if there is a faintly arguable case there has been an infringement of the right of privacy, the courts ought not summarily dismiss the action.
  1. [289]
    Further, in Dye v Commonwealth Securities Ltd [2010] FCA 720 it was held that it would be inappropriate to deny someone the opportunity to sue for a breach of privacy on the basis of the current state of the common law.
  1. [290]
    The Plaintiffs then rely upon Minister of State for Immigration & Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273, Toonen v Australia [1994] PLPR 33 and Habib v Commonwealth [2010] FCAFC 12.
  1. [291]
    To my mind such cases are not relevant to the present argument. There is no ambiguous statute to be considered which necessitates reference to Australian treaty obligations.

Consideration

  1. [292]
    The High Court in ABC v Lenah Game Meats (supra) in 2001 did not recognise any tort of invasion of privacy.
  1. [293]
    Gleeson CJ said that there was reason for caution in deciding a new tort of privacy (see [41]).
  1. [294]
    Gummow and Hayne JJ held that although the claim was misplaced, nothing in the reason should be understood as foreclosing a debate as to the creation of such a tort (see [132] also see Kirby J at [189]).
  1. [295]
    Callinan J expressed some “tentative views” on the tort. His Honour ultimately did not rule out the existence of such a tort (see [328]).
  1. [296]
    Grosse v Purvis was decided by the Queensland District Court in 2003. The case involved a persistent course of loitering by the Defendant. There was spying by the Defendant on the Plaintiff. There was unauthorised entry to her house and yard. There was unwelcome physical conduct and offensive phone calls.
  1. [297]
    Skoien DCJ at [442] held that invasion of privacy was an actionable tort.
  1. [298]
    His Honour considered the elements of the tort were ([444]):
  1. (a)
    A willed act by the Defendant.
  1. (b)
    Which intrudes on the seclusion or privacy of the Plaintiff.
  1. (c)
    In a manner highly offensive to a reasonable person.
  1. (d)
    Causing the Plaintiff detriment in the form of mental, psychological or emotional harm or distress.
  1. [299]
    At [446] his Honour found it unnecessary to decide whether the action was available in cases of negligence.
  1. [300]
    Grosse is not the only case in which such a claim has succeeded.  
  1. [301]
    In Doe v Australian Broadcasting Corporation & Ors (supra) in 2007, Judge Hampel found that this action was made out by the Plaintiff.
  1. [302]
    Her Honour held that the invasion or breach of privacy was an actionable wrong ([157]).
  1. [303]
    Her Honour stated at [163]:

“The wrong that was done here was the publication of personal information, in circumstances where there was no public interest in publishing it, and where there was a prohibition on its publication. In publishing the information, the Defendants failed to exercise the care which could be reasonably required of them to protect the Plaintiff’s privacy and comply with the prohibition on publication imposed by s 4(1A).”

  1. [304]
    In Giller v Procopets (supra) Ashley J held that a generalised tort of invasion of privacy was not recognised in Australia ([129]). Neave JA did not need to decide the matter.
  1. [305]
    In Gee v Burger [2009] NSWSC 149 the court was concerned with an application to strike out a claim. McLaughlin AJ did not express a concluded view on the topic (see [55]).
  1. [306]
    The Ontario Supreme Court in Jones v Tsige [2012] ONCA 32 recognised this tort (see [65]).
  1. [307]
    In Dye v Commonwealth Securities Ltd [2010] FCA 720 Katzmann J at [290] said:

“I accept therefore that it would be inappropriate to deny someone the opportunity to sue for breach of privacy on the basis of the current state of the common law…”.

  1. [308]
    Finally in Kalaba v Commonwealth [2004] FCAFC 326 the Full Court noted at [8] that the primary judge was not prepared to “foreclose the possibility of an argument that Australian law should recognise a duty of privacy …”.

Conclusion

  1. [309]
    In this case it appears to me that the comments made by Mr Pagett and published by Yahoo! breached a number of statutes to which I earlier made reference.
  1. [310]
    Having considered all submissions and paying due regard to the decision of Koppenol DCJ, it seems to me that there is an arguable case on invasion of privacy.
  1. [311]
    I would be very hesitant to strike out a cause of action where the law is developing and is unclear. As noted there are two single judge decisions in Australia where the claim has been successful. In neither case was an appeal heard.
  1. [312]
    The cause of action has been recognised in various states of the United States and in New Zealand. 
  1. [313]
    It seems to me the Plaintiffs will have a difficult case in establishing that there is such a cause of action with respect to comments of which they were unaware prior to 17 and 18 March 2010, but once matters were brought to their attention, in my view, Mr Wright’s claim becomes stronger albeit probably for the limited period which I have mentioned.
  1. [314]
    Of course, my decision can only relate to the invasion of privacy claim brought by Mr Wright because if Ms Doe wishes to challenge the decision of Koppenol DCJ, she would need to appeal that decision to the Court of Appeal.
  1. [315]
    I have no jurisdiction to interfere with his Honour’s decision.
  1. [316]
    Yahoo! also relies on Clause 91 of Schedule 5 to the Broadcasting Services Act 1992 (Cth). It may be that this does provide a complete defence to the pre-complaint conduct but I consider this is a matter for pleading in the defence and ultimately a matter for evidence.
  1. [317]
    I therefore do not strike out this claim.

Other cases referred to by the Plaintiff

  1. [318]
    The Plaintiffs relied on a number of other decisions.
  1. [319]
    In Stratton Oakmont Inc v Prodigy Services Co .,1995 WL 805178 (N.Y Sup., Dec. 11. 1995) Judge S. Ain in the Supreme Court of New York considered a case where defamatory statements were made about the Plaintiff on the Defendant’s bulletin board. His Honour held at p3.9 that the distributor could be liable for distributing defamatory material about others
  1. [320]
    In a similar vein were the decisions of Trkulja v Yahoo! Inc LLC and anor [2012] VSC 88 and Trkulja v Google Inc LLC and anor (No 5) [2012] VSC 533. Both cases (not unlike the instant case) considered claims in defamation.
  1. [321]
    Godfrey v Demon Internet Ltd [1999] EWHC QB 244 concerned a claim for defamation involving facts not dissimilar to the instant case.
  1. [322]
    Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 was another case involving a defamation action and the extent of the innocent dissemination defence.
  1. [323]
    All of the above may be relevant to the claims for defamation - not the claims with which I am concerned.

Conclusion

  1. [324]
    In conclusion, I strike out the Statement of Claim of Jane Doe and the Statement of Claim of Kerry Wright.
  1. [325]
    I strike out their claims against Yahoo! insofar as they relate to:
  1. (a)
    Intentional infliction of injury.
  1. (b)
    Breaches of the Fair Trading Act 1989 (Q).
  1. (c)
    Breaches of the Competition and Consumer Act 2010 (Cth).
  1. [326]
    I do not strike out the following claims:
  1. (a)
    Claims by the Plaintiffs for breach of confidence.
  1. (b)
    Claims by Mr Wright against Mr Pagett for intentional infliction of harm.
  1. (c)
    Claims by the Plaintiffs for negligence.
  1. (d)
    Claims by Mr Wright for invasion of privacy.
  1. [327]
    I stay the actions pending compliance with Part 1 of Chapter 2 of PIPA.
  1. [328]
    It seems to me that when the matter returns to the stage of pleading the Statement of Claim (if it does) the Plaintiffs will need to set out the facts I have mentioned at [17]-[128] in the Statements of Claim together with any other relevant facts I have not mentioned.
  1. [329]
    They will need to then plead the elements of each of the cause of action pleading the material facts establishing each element.
  1. [330]
    Then of course the damage alleged to have been suffered and the amount claimed for such damage will need to be pleaded.
  1. [331]
    I give the parties liberty to apply.

Recommendations

Legal assistance

  1. [332]
    As may be seen from these reasons the case is one in which important issues are raised.
  1. [333]
    It is essential that the Plaintiffs be represented- certainly at the least at the pleading stage.
  1. [334]
    I direct that a copy of these reasons be sent to the Bar Association of Queensland with a recommendation that Pro Bono counsel may be engaged.
  1. [335]
    I further direct that a copy of these reasons be sent to the Director of Legal Aid Queensland so that consideration be given to providing the Plaintiffs legal aid for a civil action.
  1. [336]
    I further direct that a copy of these reasons be sent to the Queensland Public Interest Clearing House for consideration of representation of the Plaintiffs.

Supreme Court action

  1. [337]
    It also seems to me that the Plaintiffs would not recover damages in excess of the jurisdictional limit of the District Court. It would seem sensible for the Supreme Court action to be remitted and consolidated with the District Court actions.
  1. [338]
    I will hear the parties on the question of costs.
Close

Editorial Notes

  • Published Case Name:

    Jane Doe v Yahoo!7 Pty Ltd & Anor; Kerry George Wright v Geoffrey Pagett and Ors

  • Shortened Case Name:

    Doe v Yahoo!7 Pty Ltd; Wright v Pagett

  • MNC:

    [2013] QDC 181

  • Court:

    QDC

  • Judge(s):

    Smith DCJ

  • Date:

    09 Aug 2013

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
12 citations
Jump To
Cite 1 - (2001) 208 CLR 199
Cite 2 - (2001) 208 CLR 199
Cite 3 - (2001) 208 CLR 199
Cite 4 - (2001) 208 CLR 199
Cite 5 - (2001) 208 CLR 199
Cite 6 - (2001) 208 CLR 199
Cite 7 - (2001) 208 CLR 199
Cite 8 - (2001) 208 CLR 199
Cite 9 - (2001) 208 CLR 199
Cite 10 - (2001) 208 CLR 199
Cite 11 - (2001) 208 CLR 199
Cite 12 - (2001) 208 CLR 199
Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364
3 citations
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Cite 1 - (2006) 225 CLR 364
Cite 2 - (2006) 225 CLR 364
Cite 3 - (2006) 225 CLR 364
Boulter v Batten [2010] QDC 56
2 citations
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Cite 1 - [2010] QDC 56
Cite 2 - [2010] QDC 56
Campbell v MGN Ltd [2004] 2 AC 457
8 citations
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Cite 1 - [2004] 2 AC 457
Cite 2 - [2004] 2 AC 457
Cite 3 - [2004] 2 AC 457
Cite 4 - [2004] 2 AC 457
Cite 5 - [2004] 2 AC 457
Cite 6 - [2004] 2 AC 457
Cite 7 - [2004] 2 AC 457
Cite 8 - [2004] 2 AC 457
Coco v Ord Minnett Ltd [2012] QSC 324
2 citations
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Cite 1 - [2012] QSC 324
Cite 2 - [2012] QSC 324
Doe v Australian Broadcasting Corporation & Ors [2007] VCC 281
17 citations
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Cite 1 - [2007] VCC 281
Cite 2 - [2007] VCC 281
Cite 3 - [2007] VCC 281
Cite 4 - [2007] VCC 281
Cite 5 - [2007] VCC 281
Cite 6 - [2007] VCC 281
Cite 7 - [2007] VCC 281
Cite 8 - [2007] VCC 281
Cite 9 - [2007] VCC 281
Cite 10 - [2007] VCC 281
Cite 11 - [2007] VCC 281
Cite 12 - [2007] VCC 281
Cite 13 - [2007] VCC 281
Cite 14 - [2007] VCC 281
Cite 15 - [2007] VCC 281
Cite 16 - [2007] VCC 281
Cite 17 - [2007] VCC 281
Douglas v Hello! Ltd [2006] QB 125
3 citations
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Cite 1 - [2006] QB 125
Cite 2 - [2006] QB 125
Cite 3 - [2006] QB 125
Dye v Commonwealth Securities Ltd [2010] FCA 720
3 citations
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Cite 1 - [2010] FCA 720
Cite 2 - [2010] FCA 720
Cite 3 - [2010] FCA 720
Earl v Nationwide News Pty Ltd [2013] NSWSC 839
4 citations
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Cite 1 - [2013] NSWSC 839
Cite 2 - [2013] NSWSC 839
Cite 3 - [2013] NSWSC 839
Cite 4 - [2013] NSWSC 839
Gee v Burger [2009] NSWSC 149
3 citations
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Cite 1 - [2009] NSWSC 149
Cite 2 - [2009] NSWSC 149
Cite 3 - [2009] NSWSC 149
Gifford v Strang Patrick Stevedoring Pty Limited (2003) 214 CLR 269
2 citations
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Cite 1 - (2003) 214 CLR 269
Cite 2 - (2003) 214 CLR 269
Giller v Procopets (2008) 24 VR 1
7 citations
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Cite 1 - (2008) 24 VR 1
Cite 2 - (2008) 24 VR 1
Cite 3 - (2008) 24 VR 1
Cite 4 - (2008) 24 VR 1
Cite 5 - (2008) 24 VR 1
Cite 6 - (2008) 24 VR 1
Cite 7 - (2008) 24 VR 1
Godfrey v Demon Internet Ltd [1999] EWHC (QB) 244
3 citations
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Cite 1 - [1999] EWHC (QB) 244
Cite 2 - [1999] EWHC (QB) 244
Cite 3 - [1999] EWHC (QB) 244
Grosse v Purvis [2003] QDC 151
3 citations
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Cite 1 - [2003] QDC 151
Cite 2 - [2003] QDC 151
Cite 3 - [2003] QDC 151
Habib v The Commonwealth [2010] FCAFC 12
2 citations
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Cite 1 - [2010] FCAFC 12
Cite 2 - [2010] FCAFC 12
Hamling v Australia Meat Holdings Pty Ltd[2007] 1 Qd R 315; [2006] QCA 422
4 citations
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Cite 1 - [2007] 1 Qd R 315
Cite 2 - [2007] 1 Qd R 315
Cite 3 - [2007] 1 Qd R 315
Cite 4 - [2007] 1 Qd R 315
Horinack v Suncorp Metway Insurance Ltd[2001] 2 Qd R 266; [2000] QCA 441
1 citation
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Cite 1 - [2001] 2 Qd R 266
John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484
2 citations
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Cite 1 - (2007) 70 NSWLR 484
Cite 2 - (2007) 70 NSWLR 484
Jones v Tsige [2012] ONCA 32
2 citations
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Cite 1 - [2012] ONCA 32
Cite 2 - [2012] ONCA 32
Kalaba v Commonwealth of Australia [2004] FCAFC 326
2 citations
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Cite 1 - [2004] FCAFC 326
Cite 2 - [2004] FCAFC 326
Kalaba v Commonwealth of Australia [2004] FCAFC 763
1 citation
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Cite 1 - [2004] FCAFC 763
Li Yau Wai v Genesis Films Ltd [1987] HKLR 711
2 citations
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Cite 1 - [1987] HKLR 711
Cite 2 - [1987] HKLR 711
Martens v Stokes[2013] 1 Qd R 136; [2012] QCA 36
3 citations
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Cite 1 - [2013] 1 Qd R 136
Cite 2 - [2013] 1 Qd R 136
Cite 3 - [2013] 1 Qd R 136
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
2 citations
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Cite 1 - (1995) 183 CLR 273
Cite 2 - (1995) 183 CLR 273
Phipps v Australian Leisure and Hospitality Group Ltd[2007] 2 Qd R 555; [2007] QCA 130
2 citations
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Cite 1 - [2007] 2 Qd R 555
Cite 2 - [2007] 2 Qd R 555
Platinum United II Pty Ltd v Secured Mortgage Management Ltd (in liq) [2011] QCA 162
2 citations
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Cite 1 - [2011] QCA 162
Cite 2 - [2011] QCA 162
Project Company No 2 Pty Ltd v Cushway Blackford & Associates Pty Ltd [2011] QCA 102
2 citations
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Cite 1 - [2011] QCA 102
Cite 2 - [2011] QCA 102
Spencer v Commonwealth of Australia [2010] HCA 28
2 citations
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Cite 1 - [2010] HCA 28
Cite 2 - [2010] HCA 28
Tame v New South Wales (2002) 211 CLR 317
3 citations
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Cite 1 - (2002) 211 CLR 317
Cite 2 - (2002) 211 CLR 317
Cite 3 - (2002) 211 CLR 317
Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574
3 citations
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Cite 1 - (1996) 186 CLR 574
Cite 2 - (1996) 186 CLR 574
Cite 3 - (1996) 186 CLR 574
Toonen v Australia [1994] PLPR 33
2 citations
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Cite 1 - [1994] PLPR 33
Cite 2 - [1994] PLPR 33
Trkulja v Google (No 5) [2012] VSC 533
3 citations
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Cite 1 - [2012] VSC 533
Cite 2 - [2012] VSC 533
Cite 3 - [2012] VSC 533
Trkulja v Yahoo! Inc LLC [2012] VSC 88
3 citations
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Cite 1 - [2012] VSC 88
Cite 2 - [2012] VSC 88
Cite 3 - [2012] VSC 88
Walker-Eyre v Emirates [2012] QDC 364
3 citations
Jump To
Cite 1 - [2012] QDC 364
Cite 2 - [2012] QDC 364
Cite 3 - [2012] QDC 364
Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515
2 citations
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Cite 1 - (2004) 216 CLR 515
Cite 2 - (2004) 216 CLR 515
Yorke v Lucas (1983) 49 ALR 672
2 citations
Jump To
Cite 1 - (1983) 49 ALR 672
Cite 2 - (1983) 49 ALR 672

Cases Citing

Case NameFull CitationFrequency
Doe v Yahoo!7 Pty Ltd (No 3) [2013] QDC 1881 citation
The Legal Void: The Implications of Cyber Attacks on Available Causes of Action in Modern Jurisprudence (2025) 2 QLJ 78 2 citations
1

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