Normann Witzleb [PDF 657KB] - Attorney-General's Department

interests, including the public interest in the free flow of information. There are no prima
facie entitlements in this area. The ALRC acknowledges this fundamental difference
between privacy and the interests protected by trespass. Rather than providing for a
separate defence of consent, it considers the existence (or absence) of consent as a
circumstance that affects a person’s reasonable expectation of privacy 104 and the
offensiveness of the defendant’s conduct.
61 Even though consent should therefore not technically be regarded as a defence, it is
appropriate to expect the defendant to plead and, if necessary, to prove that the
plaintiff consented. In the majority of cases, the parties agree on the factual matrix
underlying the consent issue, i.e. on what the plaintiff may have said or done before the
invasion occurred, but differ merely on the legal significance of this conduct, in
particular whether it is sufficient to infer consent. For these cases, it will not matter
whether ‘consent’ is regarded as an ‘essential element of the cause of action’ 105 or a
defence.
62 However, proof of the facts constituting consent (or lack thereof) will sometimes
remain a live issue. In these cases, the NSW proposal is problematic because it turns
the absence of consent into a threshold issue that the plaintiff needs to establish before
his or her action can succeed. In Cornelius v de Taranto, 106 for example, Mrs Cornelius
commissioned Dr de Taranto, a consultant forensic psychiatrist, to prepare a medicolegal
report on her. The defendant prepared the report and then sent copies of it to the
plaintiff’s GP and a consultant psychiatrist. The plaintiff claimed that the defendant
breached her confidence by disseminating the report without her consent. The issue of
whether the plaintiff had indeed given consent to the dissemination of the report was
the ‘crucial question of fact’ 107 in a trial that lasted six days and then went onto
appeal. 108
63 Even though this case was concerned with a breach of confidence, there is no reason
for the privacy action not to follow these established principles on consent. The onus
would then be on a defendant who wishes to rely on consent to plead and, if necessary,
prove it. Indeed, as the NSWLRC recommends that the new statutory privacy action
should not affect breach of confidence and other causes of action at general law, 109 it is
easily imaginable that a plaintiff in the situation of Mrs Cornelius may seek redress
under both causes of action. If the onus in relation to consent differed between both
causes of action and there was insufficient evidence on consent, a plaintiff would win
the confidence claim but lose the privacy action. There does not appear to be any good
reason for such a divergence. The more appropriate approach would be to require a
defendant who seeks to rely on consent to establish the relevant facts and, following
the ALRC proposal, to consider the existence of consent in the context of whether the
plaintiff had a reasonable expectation of privacy.
104 This is also the approach followed in the UK: Murray v Express Newspapers Plc and Big Picture (UK)
[2008] 3 WLR 1360; [2008] EWCA Civ 446, at [36] (Sir Anthony Clarke MR).
105 ALRC Report, at [74.159].
106 Cornelius v de Taranto [2002] EMLR 6; [2001] EWCA Civ 1511.
107 Cornelius v de Taranto [2002] EMLR 6; [2001] EWCA Civ 1511, at [28] (Mantell LJ).
108 At trial, the claimant was awarded £3,750 to compensate her for the injury to feelings resulting from
the unauthorised disclosure, and the appeal against this decision was dismissed.
109 NSW Draft Bill, cl 80.
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