Decision
169In Lenah Game Meats, Gleeson CJ examined well-established principles concerning confidential material in the context of those proceedings in which the plaintiff had sought injunctive relief. The discussion in that case assists in determining whether there is a basis for granting leave to the plaintiff to include a breach of confidence action in the present proceedings.
170Whilst Gleeson CJ in Lenah Game Meats observed at [34] that equity acts in certain circumstances to protect information imparted in confidence, the Chief Justice also observed:
"The nature of the information must be such that it is capable of being regarded as confidential."
171The issue of the misuse of private information was considered in Campbell v MGM Ltd [2004] 2 AC 457. There it was observed that, unlike the United States of America, there was no over-arching or all-embracing cause of action for "invasion of privacy" in the United Kingdom. It was observed that "protection of various aspects of privacy is a fast developing area of the law". (See discussion of this aspect below).
172It is important at this point to identify the basis upon which the Court is to exercise its discretion in the grant or refusal of an application to amend the pleadings. In Commonwealth of Australia v Verwayen [1990] 170 CLR 394, at 456, Dawson J observed:
"In granting leave to amend, a Court is concerned with the raising of issues and not with their merits. Of course, an amendment which is futile because it is obviously bad in law will not be allowed, but it is no ground for refusing an amendment that it raises a claim or defence which ought not to proceed. That will be an issue upon trial."
173In an application such as the present in determining whether leave should be granted, it is necessary to examine the proposed pleading in order to determine the factual and legal basis upon which the amendment is sought. A pleading is, of course, required to set out in summary form the facts relied upon. The issue, in the present case, is whether the facts as pleaded and particularised are capable as a matter of law of sustaining a cause of action for breach of confidence or for invasion of privacy.
174As noted in the discussion above, the defendant has emphasised that the CCTV images are much like a street scene picture and do not depict the plaintiff engaged in a private activity but consist of images of her entering or leaving a public area of her employer's workplace. In Campbell v MGM, supra, in relation to photographs of the plaintiff, being part of the subject of the plaintiff's action the photographs of her were covertly taken in the street outside the building when she was attending a meeting of Narcotics Anonymous. It was not the taking of the photographs itself which was said to be an invasion of her privacy. The information conveyed by the photographs was nonetheless private information although not private beyond that which was discussed in the article.
175The Court in Campbell v MGM was divided. Lord Hope of Craighead (one of the majority) after referring to the test as to what may be considered to be "private" advanced by Gleeson CJ in Lenah Game Meats at [42] observed that it was important not to lose sight of the fact that the test there set out is not needed where the information can easily be identified as private. It was also necessary to bear in mind the "source" of the information in determining whether the information may be considered to be public or private. (At [94]).
176On the other hand, photographs of a person may not be regarded as either revealing a private matter or as being highly offensive to a reasonable person. As observed in Campbell v MGM: "... the law of privacy is not intended for the protection of the unduly sensitive", at [94]. Gleeson CJ stated in Lenah Game Meats (supra) that the requirement in relation to what may be considered "private" involves a disclosure or observation of or in relation to information or conduct that would be highly offensive to a reasonable person of ordinary sensibilities.
177Mr Tobin in his submissions, referred to a number of authorities. Amongst them was the decision of her Honour, Judge Hampel in the County Court in Victoria in Jane Doe v Australian Broadcasting Corporation and ors [2007] VCC 201. At [110], her Honour observed that the observations in Campbell v MGM and Douglas v Hello! are apposite to the development of the law in Australia as well as the United Kingdom. Her Honour observed that an obligation of confidence extends to a wider range of people than exists in circumstances arising from the duty of good faith applicable to confidential personal information and trade secrets: At [111].
178The following observation made by Her Honour in that case is, in my opinion, apposite to the present case:
"[120] There is a distinction between something which is secret on the one hand, and something which is private, or confidential on the other. It is not necessary for information to be secret, in the sense that it has not been communicated by the person or persons for whom it relates, for it to satisfy the test of private or confidential. As Campbell demonstrates, the fact that other people were aware of the information does not of itself rob it of its private or confidential nature."
179As to the development of the law of liability for unjustified intrusion on personal privacy, whether or not it involves a breach of confidence see: Maynes v Casey [2011] NSWCA 156 at [33] - [35] per Basten JA with whom Allsop P agreed at [1].
180In the present case the source, the purpose and the nature of the photographs of the plaintiff are relevant matters. In considering the present application it may be accepted that the CCTV footage was obtained for the limited purpose of security. In relation to the CCTV surveillance it may be accepted that there existed an element of trust from employees' point of view in the sense that the images would only be used for security purposes. An unauthorised use may, at least arguably at trial, be considered as a breach of the security services arrangement entered into between CBA and Chubb, as well as the trust that employees may be taken as having had in the surveillance of their activities.
181There is sufficient basis to support the plaintiff's case that the images of her were disclosed, published or downloaded.
182So far as the nature of the photographic images of the plaintiff are concerned, the observations made by Lord Hope of Craighead in Campbell v MGM (supra) are instructive. His Lordship observed:
"Ms Campbell could not have complained if the photographs had been taken to show the scene in the street by a passer-by and later published simply as street scenes. But these were not just pictures of a street scene where she happened to be when the photographs were taken. They were taken deliberately, in secret and with a view to their publication in conjunction with the article. The zoom lens was directed at the doorway of the place where the meeting had been taking place. The faces of others in the doorway were pixelated so as not to reveal their identities. Hers was not. The photographs were published and her privacy was invaded." (At [123]).
183In the present case, the plaintiff was confronted by photographic images which depicted her and no other person. She was, accordingly, the sole subject and focus of the photographic images. It is at least arguable that the unauthorised images of her amounted to an interference in what was essentially an activity forming part of her private, though not secret, life associated with her employment. On balance, I have concluded that, having regard to the source of the photographic images, the limited purpose for which they were obtained and the nature of them, I do not consider that, at this stage of the proceedings, it is open to conclude that the cause of action for breach of confidence based on invasion of the plaintiff's privacy would be futile or bad in law: Commonwealth of Australia v Verwayen, supra, at 456.
184A cause of action against each of the defendants based on breach of confidence may raise issues of vicarious liability although, depending upon the facts, not necessarily exclusively so.
185In the written submissions on behalf of the plaintiff dated 17 October 2011 in relation to the defendants' "strike out" notices of motion, the issue of vicarious liability was addressed. In that respect it was submitted that it would be premature to dispose of the question of vicarious liability at this stage. It was noted on behalf of the plaintiff that the defendants were yet to produce to the plaintiff any of the documents which had been subpoenaed and which, in the ordinary course, it was said, would elucidate the precise circumstances in which the offending material was published to the world at large. Further, it was noted that the pleading was only able to allege so much of the relevant facts and matters as are known to the plaintiff. The correspondence in evidence, it was submitted, demonstrated further facts and matters may well be known to one or more of the defendants. The submission was:
"... in those circumstances, it would be unfair to come to a concluded view on the issue of vicarious liability."
(Written Submissions at [37].)
186Whilst I have determined that leave should not be granted to amend the Statement of Claim to include a cause of action for intentional infliction of harm on the basis that vicarious liability in either CBA or Chubb could not arise on that basis, I have considered that, in determining the proper exercise of the power to amend, that a different approach is required with respect to the causes of action framed in negligence (at least in so far as vicarious liability arises in respect of that cause of action) and in respect of a cause of action alleging breach of confidence.
187Any issue as to the vicarious liability of CBA or Chubb in relation to an action based on breach of confidence, is an issue that should be determined on the merits in the light of the evidence as to relevant factual matters and not at the point of determining the grant or refusal of leave to amend.
188On completion of the interlocutory steps, including in particular discovery, any issue of vicarious liability may lend itself to proper determination based on evidence or agreed facts. Whether this is done by the plaintiff electing to seek to have any issue of vicarious liability determined as a separate question, under rule 28.2 of the UCPR is a matter that may at some point require consideration. The relevant principles applicable to the exercise of a discretion under that Part are well-known: Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 at 141 per Giles CJ in Comm Div (as his Honour then was), Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215 at [7]. The decision in Cotton v Hammond [2002] QSC 429 is an example of a case in which consideration was given to a trial of an issue of vicarious liability separate from the trial of all other issues under the equivalent Rules of Court. In that case, the issue was considered with a view to obtaining the relatively speedy determination of the issue thus avoiding costs, the consequence of calling a great deal of evidence and incurring significant costs to no avail should all issues be tried together and the plaintiff fail on the issue of vicarious liability: at [92].
189I accordingly consider that the plaintiff ought to be granted leave to amend the Statement of Claim to include a cause of action based on breach of confidence against both defendants. The proposed cause of action in "privacy" and "breach of confidence" as formulated in the proposed Amended Statement of Claim is, in my opinion, deficient in a number of respects. The proposed breach of confidence cause of action will need to be reformulated and pleaded in accordance with UCPR rules 14.6 and 14.7.
190Section 65 of the Civil Procedure Act 2005 confers a specific power upon the Court to grant leave to amend to include a cause of action that would otherwise be barred under a relevant State limitation provision: Section 65(1). Section 65(2)(c) provides power, after the expiration of the relevant limitation period, to grant leave under s 64(1)(b) (the power to amend documents generally) so as:
65 Amendment of originating process after expiry of limitation period
(1) ...
(2) ...
(a) ...
(b) ...
(c) to add or substitute a new cause of action, together with a claim for relief on the new cause of action, being a new cause of action that, in the court's opinion, arises from the same (or substantially the same) facts as those giving rise to an existing cause of action and claim for relief set out in the originating process. (Amy DL)
191The question in an application to amend is to be answered as a matter of general impression rather than requiring a precise similarity of factual circumstances: Brickfield Properties Ltd v Newton [1971] 3 All ER E 328 at 342. See also McGee v Yeomans [1977] 1 NSWLR 273 at 380; Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 at 171.
192The exercise of the discretion to grant or refuse leave must be in accordance with s 64(2) of the Act and follow "the dictates of justice": ss 58, 57 and 56 of the Civil Procedure Act. I have taken into account the dictates of justice in permitting an amendment by the plaintiff to the Statement of Claim to plead a cause of action based on breach of confidence. I do not consider that the evidence establishes prejudice of such a nature and degree as to require the refusal of the application to amend.