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Date: Wed, 2 May 2007 07:31 From: Neil Foster Subject: Recent minor cases on minor torts
Dear Colleagues Anyone interested in slightly arcane torts (that's everybody, right?) might like to glance over some recent Australian decisions (none at the appellate level, yet) covering malicious prosecution, misfeasance in public office, abuse of process, malicious falsehood, the action per quod servitium amisit, breach of statutory duty, and an emerging tort of breach of privacy: (1) Noye v Robbins; Noye v Crimmins [2007] WASC 98 (30 April 2007) - lengthy trial judgement on matters arising from police investigation of alleged diamond thefts; malicious prosecution (attempting among other things to sort out what the High Court said in A v NSW recently), MPO, abuse of process, malicious falsehood (result was that all actions failed against a police officer who had prosecuted the plaintiff, mainly because he was not malicious; but an action for malicious falsehood succeeded against the member of the public whose apparently false accusations led to the whole thing). (2) Chaina v The Presbyterian Church (NSW) Property Trust [2007] NSWSC 353 (19 April 2007) - action per quod (based on loss of an employee's services) - framed in this way rather than simple negligence to avoid the restrictions in the NSW Civil Liability Act 2002 Part 2 - held that the action was available; it was in fact generally subject to the limits imposed by Part 2 of the CLA, since it was "related to" the death or injury of a person under s 11; but since in the circumstances the claim was made by a company, which as a corporation did not have "gross weekly earnings" as described in s 12 of the Act, the upper limit on recovery of damages for economic loss was not applicable and the company could claim the full value of the loss it suffered due to the injury to its employee. (3) Doe v Australian Broadcasting Corporation [2007] VCC 281 (3 April 2007) - a County Court decision in proceedings where the plaintiff, a victim of rape, had been named on ABC radio reports contrary to a specific statutory prohibition relating to victims of sexual offences; succeeded in an action for breach of statutory duty (the simplest and most obvious claim, in my view) - see [70]-[81]; the Judge also went on, however, to hold that there was now (or should be) an action in tort for breach of privacy (in addition to and distinct from an equitable action for breach of confidence) - see [146]-[164]. The essence of the action (for the purposes of these proceedings, at any rate) seems to be "unjustified publication of personal information" where there is no public interest in publishing, and where there is a prohibition on its publication.
Regards Neil Foster
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