Key Takeaways

This case marked the first time in Australia that injunctions have been granted under the newly introduced provisions of the Privacy Act concerning serious invasions of privacy.

Injunctions are already a common form of intervention by Courts for invasions of privacy in England and Wales. Those Courts have for many years considered the concept of ‘reasonable expectations of privacy’ and imposed injunctions to prevent the publication of private information or to otherwise require private information to be taken down. This includes orders preventing the publishing of any documents (including internet posts, texts, emails), take down orders regarding any documents, and orders restraining a person from inciting, encouraging or otherwise suggesting to any other person that such person engage in such conduct.

In this case, the documents of concern were private photographs, being wedding photographs of people that were not public figures.

Background

The Court’s decision outlined the background, based on evidence given only on behalf of the plaintiffs. The Court did not consider any evidence on behalf of the defendant, as the matter was heard ex parte.

Kurraba Group Pty Ltd (Kurraba) lodged a development application in relation to a property owned by Botany Road Development Pty Ltd (BRD). Nicholas Smith is the sole director and shareholder of BRD. Part of the site being developed was advertised for short-term rental at the same time as the announcement of the development application.

The plaintiffs, Kurraba and Mr Smith, alleged as follows:

• The defendant, Michael Wiliams, through his company, entered into a six-month lease agreement, knowing that the property would be knocked down for development following expiration of the lease
• During the lease term, Mr Williams sent a text message to Mr Smith, director of one of companies proposing to develop the land indicating that the development would allegedly disrupt his business, that it violated various laws and that Mr Williams would lodge an opposition to the development
• Mr Williams and Mr Smith then met. Mr Smith alleged that Mr Williams said he would be lodging objections to the development, and that unless he was paid $50,000, he would not remove the objections. Mr Smith alleged Mr Williams had said he ‘usually gets about $15,000’ for withdrawing objections, and in other cases it costs the parties more in legal fees
• Following the meeting Mr Smith alleged that Mr Williams made an offer to accept $50,000 in compensation for the settlement of the matter
• Mr Smith declined the settlement offer, following which Mr Smith alleged Mr Williams then commenced a publicity campaign against Mr Smith and the development, including the following:
  • Mr Williams created a website and made a series of allegations ‘of the gravest kind against both plaintiffs’
  • Mr Williams misused Mr Smith’s private wedding photographs that were never intended to be made public.

Issues

In response to Mr Williams’ actions, Mr Smith applied for an injunction and initiated a proceeding alleging serious invasions of privacy, pursuant to amendments to the Privacy Act which came into effect on 10 June 2025. The implication was that the photographs were published on Mr Williams’ website. The proceeding commenced by the plaintiffs also alleged defamation as well as intimidation.

The District Court of New South Wales determined that there was a serious question to be tried in relation to the invasion of privacy alleged by Mr Smith. The Court found that the photographs in question were misused by Mr Williams in that he ‘sought to portray what they depicted as indicating moral delinquency and drunkenness as opposed to the sanctity of marriage and the ceremonial proceedings attendant thereupon.’

In determining that the balance of convenience also favoured an injunction the Court found that Mr Williams’ conduct ‘is not that of journalistic-style investigation, but of extortion. There is no evidence of any other legitimate reason’ for Mr Williams’ conduct.

The Court determined that the invasion of privacy in this instance was intentional or reckless, and sufficiently serious. Further, the public interest in Mr Smith’s privacy outweighed any countervailing public interest.

The Court ordered injunctions, amongst other orders:

• Restraining Mr Williams from publishing any documents (including, without limitation, by way of posting articles on the internet, posting videos on the internet, sending a text message, or sending an email) referring to Mr Smith
• Requiring Mr Williams to take all steps to remove from the internet and/or any social media platform any website, article, advertisement or document referring to or identifying Mr Smith
• Restraining Mr Williams from repeating or continuing to publish a website, article, advertisement or document referring to or identifying Mr Smith
• Restraining Mr Williams from inciting, encouraging or otherwise suggesting to any person that such person engage in conduct from which Mr Williams was restrained.

Summary

This was the first case in which injunctions were obtained pursuant to new laws relating to serious invasions of privacy. Injunctions are a common form of intervention by the Courts for invasions of privacy in England and Wales. Those Courts have for many years considered the concept ‘reasonable expectations of privacy’ and imposed injunctions to prevent the publication of private information or otherwise require private information to be taken down.

The process to bring Court proceedings and obtain injunctive relief for serious invasions of privacy can be challenging for a plaintiff, who must demonstrate the origin and importance of the information, the nature of the intrusion into seclusion, the potential harm likely to be caused by publication, including the harm to family members.

It is also a public process, which can bring further unwanted and public attention to an issue which the parties would have preferred to have remained private.

A plaintiff will also need to consider whether they have invited publicity and whether, or the extent to which, the information is already public.

Plaintiffs wishing to commence proceedings for serious invasions of privacy should not delay in seeking an injunction. This was an issue for Max Mosley in a previous English matter, when Mr Mosley (former president of the governing body of Formula One) brought an application against News Group Newspapers for breach of confidence and invasion of privacy by its News of the World publication. In Mr Mosley’s matter, the Court declined to issue an injunction, due to the delay in filing. By the time the injunction was filed the video the subject of the invasion of privacy and confidentiality had already been published and widely disseminated. Accordingly, there was little point for the Court to grant an injunction preventing further publication.

Whilst to date most of the attention regarding serious invasions of privacy has focused on journalism and media reporting, this case shows that a serious invasion of privacy can occur in very different contexts. These include data breaches, surveillance and investigations, social media, employment, services including financial services, advertising/ marketing, domestic relationships, property and nuisances and breaches of confidentiality.

Should you wish to discuss this decision, serious invasions of privacy, privacy rights and obligations, and privacy policies please do not hesitate to contact us. We also deliver presentations and training to our clients on privacy laws, serious invasions of privacy, data breaches and the implications of privacy law reforms.

Further information / assistance regarding the issues raised in this article is available from the author, Bill Fragos, Special Counsel, Christina Segaan, Senior Associate, or your usual contact at Moray & Agnew.