Wilson v Ferguson CASE NOTE assignment Notes PDF

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Wilson v Ferguson

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Court- Supreme Court of Western Australia

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Judgement Date- 16/01/2015

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Judges-Mitchell J

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PLAINTIFF- Caroline Rachel Wilson

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DEFENDANT- Neil Scott Ferguson

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Unreported citation- Wilson v Ferguson [2015] WASC 15

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Reported Citation- None found

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Representation- Plaintiff: Goldsmiths lawyers, Defendant: No appearance.

Headnote- Equity — Breach of confidence — Online publication Remedies — Injunction — Equitable compensation — Compensation for embarrassment, anxiety and distress Costs — Indemnity costs

Chain of Litigation1. The Supreme Court of Western Australia had original jurisdiction over the matterJUDGEMENT FOR THE PLAINTIFF. The matter first made it to court based on a writ of summons Summary of Facts The Plaintiff [Wilson] was a 31 yo woman who had never been married. Since May 2011 she worked as a mobile plant operator at the Cloudbreak mine site operated by Fortescue metals group. The plaintiff met the defendant [Ferguson] in May 2011. Bother the P & D were employed at Cloudbreak and worked in the same crew. A romantic relationship began in November 2012. A few weeks following the start of the relationship the P moved into the D’s home in Maidavale. The P & D were the only people who would stay at the D’s house appart from the D’s children from a former relationship. The P paid rent to the D. Both the P & D are fly in fly out workers and worked shifts of 8 days on and 6 days off. They would stay at the D’s Maidavale house every fortnight or so. Both the P & D stayed in different bedroom’s on site and would send eachother photographs of sexual nature depicting eachother naked or partly naked. These photos were sent using mobile phones. The defendant

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initiated the exchanging by sending an explicit photo of himself. The D also took photos of the P without her knowledge or consent. While the photos were taken the P was in a bedroom of the Maida Vale house or in her private room at cloud break. At least one nude video was recorded by the P. The P left her mobile phone in the loungeroom of the Maida Vale house when the D was present. The P left the room and the D handed the P the phone and said that he emailed the videos to himself. The P asked the D to make sure that no one else saw the videos. At the time the D agreed that no one would see the videos. She had evidence of text messages where the D promised the D wouldn’t show his friends or anything like that. Prior to 5 August 2013 the P had never shown the photographs to or videos to anyone other than the D or published them in any way. The P gave evidence that was accepted by the judge and consisted of arguments which the P had with the D where the D threatened to post the videos on facebook and youtube. The P would beg the D not to carry out the threat. On 5 August 2013 the P & D argued via text message, the P suspected the D was cheating on her. At 11.49 am the P sent a D a text message saying that she know the D was cheating on her and she wanted nothing to do with him. After the P sent that message the D posted 16 explicit photographs and 2 explicit videos depicting the P on his Facebook page. The photos and vids were those exchanged between the P & D in the manner described above. The D included the comment ‘happy to help ya boys at home…. Enjoy’. Followed by another post ‘Let this b a fkn lesson... I will shit on anyone who tries to fk me ova. That is all’. The D made the photos and videos to approximately 300 facebook friends, many who worked at cloudbreak. The FB friends could download the photos and distribute them to others At about 5.20pm on 5 August 2013 the P began to receive telephone calls and text messages from friends asking if she had seen what the D had posted on his facebook page. The P did not have a facebook account of her own. At about 6.10 pm the P sent the D a series of text messages begging him to remove the photos and videos down from facebook.Mr Maxwell (gave evidence) saw the photos at about 5.30 pm on the day released. He gave evidence which stated that cloudbreak was a male dominated work place and workers frequently talk about women and look at pornography.

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As a consequence the P could not sleep sleep for about three or four nights, and has slep badly ever since. She had taken sleep aid tablets to help her sleep every night. The P undertook counselling sessions with Carmen Dougall, a psychologist to deal with her emotional reaction of the D’s publication of the videos. The P flew from Cloudbreak to Perth on 6 August 2013. She immediately removed her possessions from the D’s Maidavale house an moved into her parents’ house. She did not return to work until 30 October 2013. As a result of taking time off due to the publication of the photos & vids she lost $13,404 of wages. The D’s employement was terminated with effect from 14 August 2013. Issues 1. Whether the D’s conduct amounts to a breach of confidence 2. If so was the P entitled to an injunction 3. Further, was the P entitled to equitable compensation, including a) compensation for her emotional distress and b) aggravated damages?..... ‘Whether equitable loss can be awarded to compensate a plaintiff for non economic loss comprising the embarrassment and distress occasioned by the disclosure of private information in breach of equitable obligation of confidence. 4. Was the P entitled to costs on an indemnity basis Arguments for the Plaintiff 

[54]The P relies on a principle applied by the Victorian Court of appeal in Giller v Procopets. In that case the respondent had video taped parties engaged in sexual activity in the privacy of a bedroom. The appellant tried to persuade other to view the tape. The Court of appeal accepted that the publication of the videotape amounted to a breach of confidence.

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Elements of an Action in Equity for a Breach of Confidence @ [46] 1. Information was of a confidential nature

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2. That it was communicated or obtained in circumstances importing an obligation of confidence 3. That there was unauthorised use of the information- it was established the D misused the images when he posted them on his facebook page.[59] ‘it is clear that the equitable doctrine may be applied to the images of a person,, even where the images were created by the person sought to be restrained from disclosing the images. Remedies Sought Plaintiff 

Injunction(remedy sought)- The terms of the injuction sought by the P in the writ of summons would restrain the D from publishing ‘any photographs and images’. (1st injunction sought)

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Following the trial the P (by leave) submitted an alternative form of injunction which identified the photos and videos referred to.

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The alternative form proposed by the P was ‘an order restraining the D, either directly or indirectly, from publishing in any form any photographs or videos of the P that are the same or similar to those posted by him on Facebook on or about 5 August 2013 other than:

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As may be required by law;

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To professional advisers for the purpose of obtaining professional advice;

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With leave of this honourable court; or

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With express written consent by the P.

The above injunction was not given The court found that the injunction should… ‘Prohibit the D from publishing photographs or videos of the P engaging in sexual activities or in which the P appears naked or partially naked (including with breasts exposed). Mitchell J ‘Subject to hearing any further submissions as to the precise form of the order, I propose to grant a permanent injunction in those terms’. An injunction was granted. [66] 

The court found 2 concerns with this injunction 1) there is no evidence the that the D is able to the identity of all the photographs of the P which he posted on or about those dates. May present enforcement and compliance with the order. 2) The proposed

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order would restrain publication of not only those photographs and videos posted on facebook on those dates but also photographs and videos which are similar. The proposed order does not indicate the respects in which the photographs and videos must be similar. Equitable Compensation (remedy sought)

Equitable compensation was made available ‘it appears in Australia that eqitable compensation is an available remedy, in an appropriate case, for a breach of an eqitable obligation of confidence’. [68] Mitchell J. refers to Smith Kline & French Laboratories (Aust) Ltd v Department of Community Services and Health- Gummow J referred to the Court’s ‘inherit jurisdiction to grant relief by way of monetary compensation for breach of an equitable obligation, whether of trust or confidence’.

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The P claims what the statement of claim refers to as ‘damages, including aggravated, punitive and special damages. The purpose of equitable compensation for breach of confidence- ‘to put the innocent party in the position he or she would have been in had the misuse of the confidential information not occurred.

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Two issues arose from this remedy. 1) the common law approach that damages for emotional distress falling short of a recognised psychiatric or psychological injury are available in very limited circumstances.2) That equitable compensation in Australian cases has until recently been awarded only to compensate for economic loss. The second of these hurdle are more significant. [72] The court referred to Giller and said that its reasoning cannot be plainly wrong.

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There was an abandoned claim for punitive damages.[67]

Obiter 

[43]The case Commonwealth v John Fairfax & Sons Ltd adopting the language in Lord Ashburton v Pape- The principle is that the court will restrain the publication of any confidential information improperly or surreptitiously obtained or of information imparted in confidence which ought not to be divulged.

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One of the first cases referred to was prince albert v strange- involving the publication of confidential information.

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‘if the images had not been of a private and confidential character then the defendant’s purpose inn publishing them could not have been achieved’. [58]

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It is necessary for the P to show that the disclosure was to her detriment. Ratio?- she has proven that the publication of the images was deeply distressing to her and resulted in her having to take time off work and undertake counselling to assist her dealing with distress. [59]

Rationes/rationale 

[55]- The conduct of the D in posting the photographs and videos on the D’s FB page, from which they were accessible to a large number of people including employees, involved a breach of equitable obligation owed to the P to maintain confidentiality.

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The statements made by the P to the defendant about the about the images prior to their disclosure also made it clear that the images were provided on the basis that they would not be shared with others.[58]

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It is appropriate to award the P equitable compensation for the damage which she has sustained in the form of significant embarrassment, anxiety and distress as a result of the dissemination of intimate images of her in her workplace and among her social group. [85]

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the intimate nature of a personal relationship between two people may give rise to a relationship of trust and confidence such that, without express statement to that effect, private and personal information passing between those people may in certain circumstances be imbued with an equitable obligation of confidence. [51]

Held Mitchell J held1. Publication of explicit photos from ex lover was in breach of an equitable obligation of confidence 2. Appropriate relief was injunction from further publication of the images. 3. Equitable compensationto include an award to compensate for humiliation. Rejected Evidence Steven Maxwell [11]-[13]

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Statement of Steven Maxwell- he said that he overheard conversations in of people in cloudbreak… to use Mr Maxwell’s evidence in that way would infringe on the hearsay rule. [93]

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The third sentence of par 13 of mr maxwell’s statement contains mr maxwell’s lay opinion of the workers at cloudbreak having seen the images and videos. That expression of non expert evidence is not probative of any fact in issue these proceedings I rule it inadmissible on that basis. [97]

Carmen Dougall (Psycchologist) 

Such eveidence could only be admitted based on the expert opinion rule. Evidence of a psychologist will not be expert opinion if it was merely a description of human behaviour about which the court is capable of forming its own view.[101]

Mitchell j Judgement 

Infers from the facts. Infers from the timing of post/ content D posted in anger because of the P’s decision to terminate the relationship. He wanted to embarrass her and make her fold as a human.

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Inferred that the D was aware the P regarded the as private. The D’s conduct indicates that he had knowledge that the P regarded the photos as private.

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Breach of confidence in this case

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Conduct of the D involved a breach of his equitable obligationto maintain confidentiality of the images.

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Confidential Nature of the Images

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Explicit nature of the images suggests they were confidential, taken between lover should only be shared between lovers

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It was implied that neither would show a third party. Would have been regarded as highly offensive to any reasonable person of ordinary sensibilities

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Circumstances which the images were obtained

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The circumstances impose an obligation to maintain confidentiality of the photographs

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Emailed copies of videos without knowledge or consent of the P- sufficient to import an obligation of confidence.

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Nature of the photographs and circumstances obligated that any reasonable person in the shoes of the D would know that the images were for him and not for disclosure to third parties

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Disclosure would Embarrass/distress the P

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Misuse of Images

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D misused images

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Motivated to cause harm to the P for terminating their relations

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P showed that the disclose of content was to her detriment- taking time off work, counselling ect

Damages AwardedThe award should take into account of the fact that the P has NOT sustained a psychiatric injury, and its amount should not be disproportionate to amounts commonly awarded for pain, suffering, and loss of amenity in tortious personal injury cases. In my view an award of $35,000 to which should be added to the P’s economic loss of $13,404. A total amount of equitable compensation that adds up to $48,404. Orders 90

For the reasons set out above, I would make the following orders (subject to considering any further submissions as to their precise form): 1. (injunction)The defendant shall not, either directly or indirectly, publish in

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any form any photographs or videos of the plaintiff engaging in sexual activities or in which the plaintiff appears naked or partially naked (including with breasts exposed) other than: 1a) as may be required by law; 1b) to professional advisers for the purpose of obtaining professional advice; 1c) with leave of this Court; or 1d) with the express written consent of the plaintiff. 0. The defendant pay to the plaintiff equitable compensation in the amount of $48,404.00. 1. The defendant pay the plaintiff's costs of the action, including any reserved costs, to be taxed.” 

The Plaintiff was simply put to the proof of her and was not required to respond to an affirmative defence put up by the defendant.

Cases Applied

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Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S)

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Giller v Procopets [2008] VSCA 236; (2008) 24 VR 1; 40 Fam LR 378; 79 IPR 489; [2009] DFC 95-420; [2009] ALMD 3161; [2009] ALMD 3191; [2009] ALMD 3515; [2009] ALMD 3517

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Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89; 81 ALJR 1107; 2 BFRA 85; 236 ALR 209; [2007] ALMD 5345

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Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services & Health (1990) 22 FCR 73; 95 ALR 87; 17 IPR 545 (FC)

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Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39; 55 ALJR 45; 32 ALR 485 (HC)

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Pollard v Photographic Company (1889) LR 40 Ch D 345; 40 Ch D 345 (CHD)

S 25(10) of the Supreme Court Act 1935 (WA)...