Saad v Chubb Security Australia Pty Limited, t/as, Chubb Security & Anor

(a) The proceedings

1. [1]

   These proceedings were commenced by the plaintiff in the District Court on 18 August 2010 against Chubb Security Australia Pty Limited ("Chubb") and Commonwealth Bank of Australia ("CBA"). The Statement of Claim filed in that Court pleaded a cause of action against both defendants in negligence in respect of the posting on Facebook, the social networking website, in late 2010 of a number of images of her at her workplace taken from CCTV footage recorded by Chubb on security cameras on the premises of CBA.

2. [2]

   The Statement of Claim also alleged that "the publication was defamation" without any proper pleading or particulars of that allegation. The defendants maintained that the proceedings for defamation were out of time, they not having been commenced within the prescribed 12-month limitation period.

3. [3]

   After the commencement of the proceedings, notice was given of the plaintiff's intention to seek an order for leave to amend the Statement of Claim in terms of a document entitled "Amended Statement of Claim".

4. [4]

   CBA was sued in its capacity as the plaintiff's employer at the relevant time. Chubb was sued as a contractor to CBA, in which capacity it provided security services in relation to CBA's premises at Pitt Street, Sydney.

5. [5]

   The plaintiff's case is that Chubb recorded CCTV footage of CBA's employees at a point of entry to and elsewhere on those premises. The allegation was that between July 2002 and October 2006: "... Chubb captured and recorded a large of number of video images of the Plaintiff in the premises" Statement of Claim at [5].

6. [6]

   The plaintiff additionally alleged that there was a "publication" of the video images: "In or around 2007, 76 of those video images ("the video images") were published on social networking site, Facebook ("the publication"). PARTICULARS The video images focussed on the Plaintiff's torso and were accompanied by humiliating commentary" Statement of Claim at [6].

7. [7]

   The plaintiff framed a cause of action against both Chubb and CBA in negligence.

8. [8]

   In support of that cause of action the following particulars of negligence were pleaded: "PARTICULARS OF NEGLIGENCE (a)Failure to take reasonable measures to prevent injury to the plaintiff (b)Failure to have in place a system that prevented misuse of video images (c)Failure to implement a system that prevented misuse of video images (d)Failure to adequately instruct its employees (e)Failure to adequately train its employees (f)Failure to adequately supervise its employees (g)Failure to prevent the publication of private information (h)Failure to conduct inspections (i)Failure to warn the plaintiff of the risk of publication of images"

9. [9]

   The plaintiff pleaded her case against Chubb relying on vicarious liability for the tortious acts of its employees.

10. [10]

    In relation to the publication it was alleged that: "In or prior to December 2007 one or more employees of Chubb were responsible for the publication of the video images. The publication was defamation" Statement of Claim at [9] and [10]. The proposed Amended Statement of Claim records the allegation in the following forms: "[13] On or around 13 December 2007 until on or around 18 January 2008 the defendants by themselves, their servants and agents published of and concerning the plaintiff on the social networking site, Facebook, words and images which are set out in Schedule A and transcribed I Schedule B ('the matter complained of') [13A] The matter complained of was published without the plaintiff's permission on a fake Facebook page in that it was attributed to her and set up without her consent."

11. [11]

    In relation to CBA, the plaintiff's allegation is that the publication occurred as a result of CBA's negligence. The particulars of negligence alleged against CBA were in the same terms as those set out against Chubb and as extracted above.

12. [12]

    The plaintiff also alleged that CBA was vicariously liable for the alleged act of its employees on the basis that it was responsible for the publication of the video images and that such publication was defamatory as follows: "[12] Further or in the alternative, at all material times CBA was liable for the tortious acts of its employees. [13] In or prior to December 2007 one or more employees of CBA were responsible for the publication of the video images. [14] The publication was defamation."

13. [13]

    In the affidavit of Julia Catanzariti, solicitor for the plaintiff, in support of the application to amend, sworn on 20 June 2010, it was stated that the images had been obtained from CCTV footage that had been taken at the premises "in or around 2005" (at [4] of the affidavit).

14. [14]

    The plaintiff's solicitors forwarded to the defendants' solicitors copies of the proposed Amended Statement of Claim. In accompanying letters it was stated that as the District Court did not have jurisdiction to provide some of the relief sought, an application would be made to transfer the proceedings to this Court.

15. [15]

    The plaintiff filed a Notice of Motion in the District Court on 9 May 2011 in which an order was sought to extend time for the bringing of her action in defamation to 18 August 2010 (as noted above, the date on which the Statement of Claim was initially filed in the District Court). An order was also sought for leave to amend the Statement of Claim. The Notice of Motion was supported by the affidavit of Ms Julia Catanzariti sworn 9 May 2011.

16. [16]

    Chubb and CBA also filed applications in the District Court. They were: (i)Notice of Motion filed on behalf of the second defendant (CBA) filed on 13 April 2011. CBA sought an order that the proceedings be dismissed. Alternatively, an order was sought that the plaintiff provide further particulars of the claims in negligence and defamation. (ii)Notice of Motion filed on behalf of the first defendant (Chubb) on 14 April 2011. The following orders were sought: (a)That the Statement of Claim be struck out pursuant to rule 14.28 of the Uniform Civil Procedure Rules 1995 ("UCPR"). (b)In the alternative, the proceedings be dismissed pursuant to Rule 13.4 of the UCPR. (c)In the alternative, that the plaintiff's action in defamation be struck out pursuant to Rule 14.28 or dismissed pursuant to Rule 13.4, and on the basis of s 14B of the Limitation Act 1969. (d)An order for costs.

(b) The plaintiff's employment with CBA

1. [17]

   The plaintiff commenced employment with CBA on 1 July 2002. She continued to work at its premises in Pitt Street, Sydney until she ceased work on 30 January 2006.

2. [18]

   It appears that her employment was formally terminated when she resigned on 12 April 2010.

3. [19]

   In its written submissions, CBA admits that: (1)From 1 July 2003 until about 30 January 2006, the plaintiff was employed by the second defendant and worked at its premises. (2)From 1 July 2003 until about 30 January 2006, Chubb provided security at the premises of CBA. The plaintiff's allegation, as noted above, was that on or about 12 December 2007, 76 images were posted on a Facebook site. She became aware of that fact on 4 January 2008 when a colleague sent her an email querying the Facebook site. The plaintiff forwarded on that email to her Executive Manager, Michael Mynett. Following a formal complaint by her to Facebook, the Facebook site was taken off-line on 18 January 2008.

4. [20]

   The plaintiff alleges that publication of the images on Facebook occurred between 12 December 2007 and 18 January 2008.

5. [21]

   On 1 February 2008, the plaintiff attended Teakle Ormsby Conn, Solicitors (Mr Conn) for the purpose of obtaining legal advice.

6. [22]

   She was paid workers' compensation on and after 19 February 2009 in respect of a depressive illness.

(c) Proposed new causes of action

1. [23]

   Proceedings as noted above were commenced by the plaintiff in the District Court of NSW on 18 August 2010. They were subsequently transferred to this Court on 1 July 2011.

2. [24]

   On 7 June 2011, the plaintiff served a proposed Amended Statement of Claim which included a number of "new" causes of action. She also sought to rely upon alleged breaches by CBA of s 18 of the Workplace Surveillance Act 2005 and Part 3 of the Privacy Act 1988 (Cth). These proposed amendments gave rise to a range of issues which were the subject of detailed primary and supplementary submissions as well as oral submissions.

3. [25]

   On 29 September 2011, the plaintiff served an amended Notice of Motion. This will be discussed below.

(a) The contentions of the defendants

1. [26]

   The first and second defendants contended that: (1)The plaintiff's claim is statute-barred. (2)The plaintiff had failed to properly particularise the imputations relied upon as giving rise to the defamation claim. (3)There is no evidence that the Facebook site was published on the World Wide Web. It was submitted that publication can only exist when it is evident that someone had downloaded and comprehended the defamatory material: Dow Jones & Co Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575 at [44].

2. [27]

   The defendants also submitted that any allegation by the plaintiff that the date of publication persisted until the Facebook site was taken off-line, namely, 18 January 2008, must fail. CBA contended that it had not been established that any continuing publication occurred: Dow Jones v Gutnick, supra, at [44] and [48] and Lakaev v Denny [2010] NSWSC 1480 at [26] to [31].

3. [28]

   Both defendants pleaded a defence under s 14B of the Limitation Act 1969 in respect of the defamation claim.

4. [29]

   They submitted that the Court would not be satisfied that a cause of action in defamation arose any later than 4 January 2008. It was also contended that there was no pleading or assertion or evidence that there had been subsequent publications of the photographs or images allegedly sourced or derived from the CCTV footage.

(1) Limitation provision

1. [30]

   Section 14B of the Limitation Act, is in the following terms: "An action on a cause of action for defamation is not maintainable if brought after the end of a limitation period of 1 year running from the date of the publication of the matter complained of."

2. [31]

   Section 56A of the Limitation Act sets out the conditions on which an extension of the limitation period for an action on a cause of action for defamation may be granted. That section provides: "56A Extension of limitation period by court (1)A person claiming to have a cause of action for defamation may apply to the court for an order extending the limitation period for the cause of action. (2)A court must, if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within 1 year from the date of the publication, extend the limitation period mentioned in section 14B to a period of up to 3 years running from the date of the publication. (3)A court may not order the extension of the limitation period for a cause of action for defamation other than in the circumstances specified in subsection (2)."

3. [32]

   Under s 56D, of the Limitation Act the Court has power to order an extension of the limitation period on application for such an order even though the limitation period has already expired.

4. [33]

   The defendants contended that, by reason of the provisions of s 14B, the claim became statute barred on 4 January 2009. The proceedings, it was noted, were commenced in the District Court on 18 August 2010.

5. [34]

   An application for an extension of time under s 56A must be brought before the expiry of the extended three year period referred to in s 56A(2). In this respect CBA relied upon both the provisions in s 56A(2) and (3) and in relation to those provisions, the observations of Simpson J in Ahmed v Harbour Radio Pty Limited [2010] NSWSC 676 at [26]-[30].

6. [35]

   In support of their limitation defence, the defendants submitted that the plaintiff had not satisfied the provisions of s 56A(2). The plaintiff's Notice of Motion was filed on 9 May 2011. Accordingly it was submitted it was out of time. CBA submitted that any application ought to have been brought on or before 4 January 2011. Failure to do so, it contended, meant that the claim in defamation was not maintainable.

7. [36]

   The defendants additionally submitted that the plaintiff had not satisfied the requirements of s 56A(2) in that she had failed to adequately explain why it was not reasonable for her to commence proceedings within the 12 month period prescribed by s 14B.

(2)Application for extension

1. [37]

   Before considering the provisions that authorise an extension of the limitation period, the following matters are noted: (i)In the Statement of Claim filed on 18 August 2010, the plaintiff alleged that the images were published on the social networking site Facebook, "In or around late 2007". In the proposed Amended Statement of Claim these words are repeated at [6] but at [13] it is alleged that the publication of the images on Facebook occurred "On or around 13 December 2007 until on or around 18 January 2008 ..." (ii)If the period of publication is as stated at [13] of the proposed Amended Statement of Claim, then the one year limitation period would have expired by 18 January 2009. (iii)The prescribed two year limitation period for an application to extend time, on that basis, would accordingly have terminated on 19 January 2011.

2. [38]

   As earlier noted, on 9 May 2011, the plaintiff filed her Notice of Motion seeking an extension of time in respect of the claim in defamation.

3. [39]

   The application for an extension of time under 56A was brought outside a period of three years of 18 January 2008. However, it was submitted for the plaintiff that the Court nonetheless has power to grant an extension having regard to the fact that the Statement of Claim, which purported to include a count in defamation, was brought within that period (on 18 August 2010).

4. [40]

   Section 56A was inserted into the Limitation Act in 2002 by the Defamation Amendment Act 2002. It was then subject to amendment as a package of amendments made by the Defamation Act 2005. These amendments, it has been observed, were adopted as part of a uniform national approach to the law of defamation: Ahmed (supra) at [26]. In Ahmed, her Honour noted that there were material differences in the provisions of s 56A, in contrast to limitation provisions found elsewhere in the Limitation Act. Her Honour observed: "[27] The provision is in somewhat unusual terms, and it is worth taking a moment to paraphrase, and to note what it does not do. It does not, as is usual with limitation extension provisions, confer a discretion on a court to extend a limitation period where, for example, it is just and reasonable to do so, or where it was reasonable for the plaintiff not to have commenced proceedings within the prescribed time. [28] It differs from such provisions in two respects. Firstly, it requires the plaintiff to prove that it was not reasonable to commence proceedings within time; secondly, far from conferring a discretion on the court to extend time if the plaintiff proves that fact, it obliges the court to extend time. Extension, in those circumstances, is mandatory." (Emphasis added)

5. [41]

   A court may not order an extension of the limitation period other than in the circumstances specified in s 56A(2). In Ahmed the Notice of Motion seeking the extension of time was filed within the three year period specified in 56A(2). However, her Honour noted that the amendments made by the 2005 Act, in so far as s 56A is concerned, marked a significant change. The version of s 56A that was repealed by the 2005 Act had provided: "(4)... the court may, if it decides that it is just and reasonable to do so order that the limitation period for the cause of action be extended for such period as it determines..." (Emphasis added) Accordingly, these provisions had prescribed a very different test to that imposed by the existing 56A(2).

6. [42]

   It is necessary to consider how the existing provisions are to be applied. What is clear from the judgment in Ahmed (supra) is that the test is not whether it was reasonable for the plaintiff to have commenced proceedings within the one year period, but whether it would not have been reasonable for the plaintiff to have commenced within the time specified. Simpson J observed the former test has been inverted. The provisions of s 56A accordingly provide that the plaintiff is entitled to an extension of time if it was not reasonable in the circumstances that existed to have commenced proceedings within one year of the publication of the images. In Ahmed (supra) Simpson J observed: "[52] Section 56A entitles the plaintiff to an extension of time if it was not reasonable, in the circumstances that existed, to have commenced proceedings within one year of the publication of the broadcast. One can envisage circumstances in which it would not be reasonable for a plaintiff to commence proceedings within that time. One is where the plaintiff is unaware of the publication. Another is where the plaintiff is unable to identify the publisher or prove publication. (In this regard the obligations of legal practitioners under s 347 of the Legal Profession Act 2004 and the provisions of s 348 thereof are to be borne in mind.) Another circumstance may be where the plaintiff is engaged in non-litigious processes to vindicate his or her rights: see Noonan v MacLennan [2010] QCA 50 at [17]."

(b) Application of the extension of time provisions

1. [43]

   The provisions of s 56A as well as their application were considered in Ahmed (supra) at [27], [28], [39] and [52] to [54]. See also Rayney v Western Australia (No 3) [2010] WASC 83.

2. [44]

   In Ahmed (supra), Simpson J noted that s 56A deals with two matters: (1)It requires the plaintiff to establish that it was not reasonable to commence proceedings within time. (2)Rather than conferring a discretion on the Court to extend time, if the plaintiff proves that fact, the Court is required to extend time. In other words, an extension of time in those circumstances is mandatory.

3. [45]

   Simpson J in Ahmed, supra, at [54],referred to the observations of Malcolm CJ in Rayney v State of Western Australia (supra), in which the Chief Justice stated that the test posed by s 56A presented "a difficult hurdle for a plaintiff to overcome unless there are some unusual circumstances ..." and that it was "... not a burden which is discharged by showing it was not unreasonable to have not commenced within one year".

4. [46]

   In Carey v Australian Broadcasting Corporation [2010] NSWSC 709 at [56] and [57], McCallum J held that the plaintiff's participation in the ABC's internal complaints process did not constitute a reason not to commence defamation proceedings on the basis that the complaints process was not directed to addressing damage to reputation. Her Honour held that a claim in defamation could have proceeded along with the complaints process.

5. [47]

   The test posed by s 56A involves the following propositions: (1)A plaintiff has a positive burden of establishing that it was not reasonable, in the particular circumstances, for him or her to have commenced proceedings within one year of the date of publication of the allegedly defamatory material. (2)A plaintiff would be required to adduce material in evidence for the purposes of discharging that burden. (3)Whether or not evidence in support of an application for an extension of time is sufficient to discharge the burden of proof under s 56A will, depend upon: (a)The nature of the matters established by the evidence; (b)That those matters were of such a nature that they would support a conclusion that it was not reasonable, in the particular circumstances of the case, for proceedings to have been brought or commenced within the one year period. (4)In making a determination under s 56A a court is engaged in the application of a test which is objective and not subjective. Accordingly, a plaintiff's stated belief about a particular matter may well be insufficient in itself to discharge the onus unless circumstances are proved that reasonably caused or gave rise to the plaintiff's belief that it was not reasonable to have commenced proceedings within the stated time.

6. [48]

   In the present proceedings, the defendants argued that, even though the plaintiff may not have known that she had a legal cause of action, she nonetheless had an awareness or knowledge that she had been, on her case, 'wronged' and had a desire to seek some form of redress for the photographs posted on Facebook. In support, reliance was placed upon the following facts: (1)On 16 January 2008 in an email to Holly Roberts, the plaintiff stated, "it's humiliating and degrading". (2)On 17 January 2008 in an email to Facebook, the plaintiff stated, "I'd like to take legal action against the offending person/persons involved. Can you please provide as much information as possible to assist with my civil law suite [sic]". (3)On 18 or 19 January 2008 in an email to Facebook the plaintiff sought information on the number of hits, the email address of the registered account and whether Facebook could prevent the photographs from reappearing.

7. [49]

   The defendants submitted that the inquiries made by the plaintiff seeking information supports an inference that she desired to commence legal proceedings.

8. [50]

   On 1 February 2008, the plaintiff sought legal advice from Mr Conn. It was submitted that it was open to this Court to infer that the plaintiff did not intend to adopt a "wait and see" attitude in pursuing her rights.

9. [51]

   The following matters were relied upon: (1)In a letter from the plaintiff to CBA dated 31 March 2008, she stated that she was reluctant to take any proceedings against her employer. She indicated that she did not wish to pursue any internal review. (2)The letter of 31 March 2008 followed a conference held on 20 February 2008 between the plaintiff, a paralegal in the employee of Mr Conn and Mr Ash of counsel. Mr Ash had been briefed on 12 February 2008. CBA contended that taking into account an email from Mr Ash dated 21 February 2008, it can be inferred that the issue of compensation was discussed at the above conference. (3)In a letter dated 30 April 2008, the plaintiff's solicitors wrote to CBA. The letter stated "Our respective roles can only be limited to advising on the (un)availability of legal redress, perhaps for breach of statutory duty, perhaps for something else". This letter also referred to "the appropriateness of any compensation". The submission for CBA was that the court could infer from the letter that the plaintiff's solicitors had in mind the plaintiff's compensation claim. (4)On 17 June 2008, CBA wrote to the plaintiff's solicitor. The letter was sent to her barrister, Mr Ash, under cover of a letter dated 18 June 2008. (5)Mr Ash, by an email dated 18 July 2008, provided advice on the prospects of a claim for compensation for "mental harm".

10. [52]

    In the submissions for Chubb it was noted that the plaintiff had not given evidence as to what, if any, advice she had received in relation to a potential defamation claim and as to the limitation period that applied to such a claim. There was no evidence that her solicitor or counsel advised her of her rights in relation to a defamation action. It was submitted that advice on a claim in defamation by a competent solicitor and counsel ought be presumed as having been given and based on the facts then known, and that the plaintiff had in fact been advised on that basis.

11. [53]

    It was submitted for Chubb that the asserted failure of the plaintiff's legal representative to provide proper advice ought not result in any loss being borne by it. It was contended in this respect that the plaintiff has recourse against her former solicitors (their insurer) and her former counsel for any failure to advise her on a potential claim in defamation and any lost opportunity by way of compensatory damages.

12. [54]

    It was submitted that the plaintiff had sought legal advice from competent legal practitioners. The email from Mr Ash dated 18 July 2008 demonstrated that he had turned his mind to potential causes of action against the second defendant including a complaint to the Privacy Commissioner under the Privacy Act 1988 (Cth). Obtaining legal advice had not been unusual in the circumstances of this case. An assertion that legal advice to a plaintiff had been wrong it was contended does not constitute a circumstance that satisfies the test in s 56A(2).

13. [55]

    The identity of CBA was, of course, known to the plaintiff. With reasonable inquiry, it was argued, Chubb would have been identified to the plaintiff. Accordingly, identity, it was submitted, was not a ground to establish that it was not reasonable for the plaintiff to have commenced proceedings within the one-year period.

14. [56]

    CBA relied upon the evidence that indicated that the plaintiff became aware of the images on 4 January 2008 after they had been posted online on 12 December 2007. Accordingly, it was argued this is not a case in which it could be asserted that the plaintiff was unaware of the alleged publication.

(c) Decision on the extension of the limitation period

1. [57]

   In relation to the plaintiff's application under s 56A: (1)There is a burden on her to establish the negative proposition - that it was not reasonable to have commenced proceedings within the prescribed time. (2)In light of the short limitation period prescribed (1 year) and the above requirement in s 56A, the burden on a plaintiff requires proof of a ground, or a positive reason, as to why it was not reasonable to commence proceedings within that period. (3)The evidence required to discharge the burden under s 56A needs to identify the circumstances that constitute an acceptable reason or justification for not having commenced proceedings within the 1 year period. (4)The "circumstances" relied upon in support of the application must be objective in nature and not merely a subjective belief of the plaintiff.

2. [58]

   The plaintiff knew in late December or early January 2008 that she had been 'wronged' by the posting of the images and captions. She considered them to be humiliating or insulting. She engaged her solicitor about the matter on 1 February 2008, having written to Facebook on 17 January 2008, stating that she would like to take legal action against the person or persons responsible. It is clear that she had wanted legal redress in the nature of "compensation".

3. [59]

   The plaintiff relies upon the fact that she was not advised of the limitation period.

4. [60]

   There is no evidence as to what legal advice was given to her in the year following the display of the images as to the availability of proceedings including in particular defamation proceedings. It is clear that she had discussed the issue of 'compensation' with her legal representatives in the prescribed 12 month limitation period (in particular on the basis of 'breach of statutory duty'). Mr Ash had also raised the possibility of a complaint under the Privacy Act.

5. [61]

   In Noonan v MacLennan (supra) the provisions of s 32A concerning extension of the limitation period in similar terms to s 56A, Keane JA , as his Honour then was, observes: [22] Consideration of the issue of reasonableness must commence from the position that the Act lays down strict time limits for the commencement of proceedings for damages for defamation. No doubt the legislature was moved to fix these strict limits for good reason. These limits are part of the law of the land to be observed by all persons save where s 32A(2) is engaged. And on any view of s 32A(2) of the Act, it operates by reference to what is reasonable. Mere ignorance of the strict time limits fixed by the Act cannot afford a reasonable basis for not complying with them. Generally speaking, ignorance of the law has never been thought to be a reasonable basis to relieve a person of the consequence of non-compliance with the law.

6. [62]

   No contention has been made on behalf of the plaintiff that legal advice given to her had been incorrect. There may, or may not, have been a view taken by her lawyers, upon a consideration of the facts as then known, that commencement of defamation proceedings should be deferred or not commenced. The fact that the plaintiff had not received advice as to the limitation period alone is not, in my opinion, in itself, sufficient to satisfy the requirement under s 56A. This is particularly the position where the evidence does not otherwise reveal any matters that explain and/or justify the plaintiff in not commencing defamation proceedings within the one year period.

7. [63]

   There is an absence of evidence as to communications, if any, between the plaintiff and her solicitors between June 2008 to 4 June 2009 (the expiration of the limitation period of 1 year from the first posting of the images on the plaintiff's Facebook).

8. [64]

   The evidence suggests that there was little activity on the plaintiff's part after July 2008, until she consulted Dr Bertucen, at her solicitor's request, in April 2009. On 9 July 2009, Mr Moffett of counsel was briefed. The plaintiff's current solicitors were instructed on 24 May 2010. No application for an extension of time was filed until on 9 July 2011. The evidence does not explain the delay between 24 May 2010 and 9 July 2011.

9. [65]

   The plaintiff has not established that it was not reasonable to commence proceedings within time. The requirements for an extension of the limitation period under s 56A(2) have not, in my opinion, been satisfied. The application for an extension of the limitation period must, in my opinion, be dismissed.

10. [66]

    It was argued on behalf of the plaintiff that the second defendant, by its conduct, was estopped from relying on the limitation defence as an answer to the plaintiff's claim in defamation. The submission in this respect was set out in [41] of the Written Submissions on behalf of the Plaintiff dated 17 October 2011. Therein is stated: "... the second defendant, by its undertaking to her and her solicitor, secured the plaintiff's acquiescence in postponing a claim to enforce her legal rights. That undertaking was in the form of a promise to inform her of the progress of the inquiry as a prelude to a possible resolution of a claim for compensation ..." It was submitted that it would be unconscionable for the second defendant to rely upon the expiration of the limitation period in the circumstances deposed to by the plaintiff in her affidavit of 6 October 2011.

11. [67]

    The correspondence between the plaintiff's solicitors and the acting general counsel for the Commonwealth Bank group were attached to the affidavit of Julia Catanzariti sworn 20 June 2011. In particular, Annexure "T" to that affidavit contains a letter from the acting general counsel stating that an investigation into the matter was continuing and the plaintiff's solicitors would be notified when there was any development to report or as soon as there was more to report.

12. [68]

    The correspondence indicates that there was no follow up on behalf of the plaintiff by way of inquiry. I do not consider that in circumstances in which there were no steps taken to commence proceedings until 18 August 2010 that the correspondence by CBA to the plaintiff's solicitors forms the basis for an estoppel based upon the principles in the Commonwealth v Verwayen (1990) 176 CLR 394. At the time that the Bank corresponded there was no clear indication that the plaintiff had decided to commence legal proceedings against CBA rather than pursuing an internal review or grievance process. Further there is no evidence of any material representation or conduct by or on behalf of CBA that induced her to refrain from taking steps to commence legal proceedings in defamation.

Chubb's application for dismissal of proceedings

1. [69]

   The application by Chubb firstly, seeks an order that the proceedings be dismissed under UCPR rule 13.4. An order may be made under that provision in the event that one of three matters are established, namely: (1)That the proceedings are frivolous or vexatious, or (2)No reasonable cause of action is disclosed, or (3)The proceedings are an abuse of the process of the court.

2. [70]

   Chubb also relied upon the provisions of UCPR rule 14.28. Under that rule the court may at any stage of the proceedings order that the whole or any part of the pleading be struck out. Such an order may be made by one or the other on the following three bases: (1)That the pleading discloses no reasonable cause of action or other case appropriate to the nature of the pleading; (2)That the pleading has a tendency to cause prejudice, embarrassment or delay in the proceedings; (3)Otherwise the pleading is an abuse of the process of the court.

3. [71]

   The application by Chubb seeks that the Statement of Claim, as a whole, be dismissed or struck out. The following principles apply to such an application: (i)The power to order the pre-emptory termination of a claim brought to the courts by the striking out of a statement of claim, is one to be used with caution and only in the clearest of cases: Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 536. (ii)The power to strike out certain parts of the claim involves the exercise of a judicial discretion: Wentworth v Rogers (No 5) (supra at 536). It is a discretion which applies to a matter of practice or procedure. On an application for dismissal under rule 13.4, a liberal construction should be given to the challenged pleading in order to justify an order under the rule that the offending pleading must be beyond saving by legitimate amendment: Mutual Life & Citizens Assurance Co Ltd v Evatt (1970) 122 CLR 628 at 631; Brimson v Rocla Concrete Pipes Limited [1982] 2 NSWLR 937. (iii)The court will strike out a statement of claim summarily if it is clear and beyond all doubt that the pleading is hopeless: Kellaway v Bury (1892) 66 LT 599 and 602 per Lindley LJ. (iv)For the power to strike out a statement of claim the pleading must be so bad that no legitimate amendment could cure the defect: Republic of Peru v Peruvian Guano Co Ltd (1887) 36 Ch D 489 and 496. (v)The mere fact that the case is weak and not likely to succeed is not a ground for striking out a validly formulated pleading: Brimson v Rocla (supra) at 942 per Cross J.

4. [72]

   An order under Part 13 Rule 4 is an order that "...the proceedings be dismissed generally or in relation to that claim" whilst an order under rule 14.28 is concerned with pleadings. Accordingly, under rule 14.28 an order may be made that the whole or any part of a pleading be struck out if the pleading can be said to fall within sub paragraphs (a), (b) and or (c) of that rule.

5. [73]

   Where a court has been asked to reject a plaintiff's pleaded case, either under its statutory rules or its inherent jurisdiction, the fundamental principle is that prima facie, a plaintiff is entitled to have his or her case come to trial. Applications to deprive a plaintiff of that right will succeed only in the clearest of cases: Brimson v Rocla, supra. "True, the court will not look merely at the suggested weakness of the plaintiff's case but - though to a less extent - at the suggested strength of the defendant's case; and, true, forensic argument and subsequent judicial reflection are not necessarily inconsistent with a firm conclusion that the cause of action should not be allowed to proceed. But fatal defects in the plaintiff's case must be very clear before the court will intervene in this fashion." (at 944-945).

6. [74]

   Support for the above observations is to be found in the judgment of Dixon J, as he then was, in Dey v Victorian Railways Commissioners [1949] HCA 1; 78 CLR 62 at 91, 92 and in the well-known decision in General Steel Industries Inc Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125 at 128 and 129 where in Barwick CJ observed: "The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion."

7. [75]

   In Agar v Hyde [2000] HCA 41; 201 CLR 552 it was observed by Gaudron, McHugh, Gummow and Hayne JJ at [57]; "Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way."

8. [76]

   The High Court has reaffirmed that formulation in more recent times; Batistatos v Rhodes and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256 at [46], Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 at [24].

9. [77]

   The test to be applied therefore is whether, the claims brought by the plaintiff in the present proceedings are so obviously untenable or groundless that there is "a high degree of certainty" that they will fail if allowed to go to trial; and whether this is one of the "clearest of cases" in which the court may accordingly intervene to prevent the claims being litigated: Shaw v New South Wales [2012] NSWCA 102 at [32].

10. [78]

    I turn to consider the plaintiff's claim in negligence

D. Deficiencies in the plaintiff's pleading

1. [79]

   The Statement of Claim pleads causes of action in negligence against Chubb and CBA in separate counts. As a pleading it is clearly deficient in form in that it does not contain properly formulated causes of action. The Statement of Claim pleads the following as material facts: As regards CBA: (i)The plaintiff's employment relationship with CBA. (ii)That Chubb provided security services in relation to the place of work, by implication pursuant to a contract between Chubb and CBA. (iii)That there was an act or there were acts constituting publication of the identified images. (iv)That an employee(s) of CBA was/were responsible for the act of posting images and captions or commentary on Facebook. (v)That the plaintiff suffered injury, loss and damage as a result of the alleged publication. As regards Chubb: (i)The facts referred to in (i), (ii) and (iii) above. (iv)That the "act", or acts, by way of publication occurred due to the alleged breach of duty of Chubb. (v)That an employee(s) of Chubb was/were responsible for the relevant act or acts. On the above bases it is alleged in the alternative that Chubb or CBA is vicariously liable for the alleged act(s). The Statement of Claim does not identify the person or persons who is/are alleged to have been responsible for the relevant acts. There is as noted above an allegation in the alternative that the person(s) was/were employed by CBA or Chubb.

2. [80]

   The Statement of Claim does not specifically allege that (a) Chubb or CBA was subject to a relevant duty of care, (b) Either defendant were in breach of that duty.

3. [81]

   The Statement of Claim seeks to rely upon the allegation that the publication in question occurred due to the direct negligence of Chubb or CBA and/or that Chubb or CBA was vicariously liable for the tortious acts of its employees. However, it purports to do so by way of a rolled up form of pleading, which is deficient in form and, as noted above, the pleading taken at its highest, by implication only, seeks to raise allegations of duty and breach of duty by Chubb or CBA.

4. [82]

   The Statement of Claim contains an allegation as to causation of damage, namely that the plaintiff suffered injury loss and damage as a result of the alleged negligence.

Grounds for summary dismissal

1. [83]

   On behalf of Chubb it was argued that the Statement of Claim did not plead a viable cause of action on the following grounds:

   1. (1)

      The law of defamation precludes an action in negligence. The cause of action in negligence was misconceived as the damage allegedly flowing from the "publication" of the images can and should be dealt with within the law of defamation. The claim in negligence accordingly should be struck out.

   2. (2)

      The pleading does not identify the alleged perpetrator of the images posted on Facebook.

   3. (3)

      Chubb cannot be tortiously liable for the intentional acts of employees.

2. [84]

   CBA contended that the plaintiff's proceedings against it were not maintainable as there had been no election made pursuant to s 45(1)(b) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (referred below to as "the SRC Act"). The issue of "election" is discussed below.

3. [85]

   The cause of action in negligence pleaded against CBA in the existing Statement of Claim relies upon the same material facts as are pleaded against Chubb. The plaintiff additionally relies upon the existence of an employment relationship between CBA and herself as a relevant fact in addition to the allegation that CBA employed the perpetrator of the relevant acts. CBA denies that it employed the person who was responsible for the Facebook images.

4. [86]

   The Statement of Claim alleges, against both Chubb and CBA, that each failed to put in place safety measures to prevent the misuse of the CCTV material and that each had failed to instruct, train and supervise its employees.

5. [87]

   As indicated above the negligence pleaded against each defendant proceeds upon the basis of both direct and vicarious liability. In this case the plaintiff at least impliedly asserts and relies upon "a system" argument, namely, the alleged failure or omission by each defendant to have adopted and put in place and implemented the various precautions referred to in the particulars.

6. [88]

   I turn to consider the particular grounds argued by the defendants.

Ground 1 - the law of defamation precludes an action in negligence

1. [89]

   In the written submissions for Chubb it was argued that no duty of care, could exist in the relevant circumstances. This contention was put on the basis that to find such a duty "... cuts across the existing legal principles in the law of defamation such that the claim in negligence should not be permitted to stand": First Defendant's Supplementary Submissions at [7].

2. [90]

   The submission in this respect was partly supported by references to the High Court's decision in Sullivan v Moody [2001] HCA 59; 207 CLR 562 and to the approach taken in Caparo Industries plc v Dickman [1990] 2 AC 605 at 617-618.

3. [91]

   Mr Dawson of counsel for Chubb submitted that the "question about coherence of the law" discussed in Sullivan v Moody arises in the present case. He submitted that the damage allegedly flowing from the "publication" of the images can and should be dealt with within the law of defamation and on that basis the claim in negligence should be struck out.

4. [92]

   Support for the submission is said to be found in the cases where courts have been prepared to strike out claims in negligence at an interlocutory stage where the essence of the plaintiff's prospective complaint is that: "... the plaintiff has suffered injury to his or her reputation and hurt through feelings by reason of a publication by a defendant..." at [13].

5. [93]

   It was submitted by Mr Dawson that the duty for which the plaintiff contends in the present proceedings namely, a duty of care to take particular precautionary measures (for safe-keeping of the images) ultimately amounts to an allegation of the existence of a duty to avoid publication of the material. The duty asserted in the present case, it was argued, was not unlike that alleged against the defendants in Gould v TCN Channel 9 [2000] NSWSC 707, which was described there as a duty to: "... develop certain management systems, and exercise certain skills ... and honour certain journalistic codes ..." Had this been done, so the argument ran in Gould, steps would have been followed that avoided any publication of untruths and misrepresentations.

6. [94]

   The decision in that case was based on an application of the principles discussed in Sattin v Nationwide News Pty Ltd (1996) 39 NSWLR 32, which in turn was based upon the approach in Bell-Booth Group Ltd v Attorney-General (1989) 3 NZLR 148.

7. [95]

   The circumstances of the present case, in my opinion, fall outside those that arose in those cases. In Sattin the plaintiff sought leave to file an Amended Statement of Claim setting out particulars in relation to a publication. The particulars of negligence were said to include; "(i)Failure of the photographer to ascertain the marital status of the Plaintiff; (ii)Failure of the Sub-Editor or any other servant or agent employed by the Defendant to ascertain the marital status of the plaintiff prior to the publication of the photo referred to above ..."

8. [96]

   One of the questions in Sattin was whether an award of damages for injury to reputation was available in proceedings based upon an action in negligence. That raised the issue as to whether, in the circumstances of that case, a duty of care was imposed on the defendant newspaper in the publication of the matter of which the plaintiff complained, or whether the plaintiff's remedy in the circumstances of the case had to be found in the law of defamation.

9. [97]

   Levine J in Sattin reviewed at length the relevant authorities which I need not here refer to in detail. However, at the centre of the issue under consideration in that case was the contention of falsity in the published material. Levine J observed: "As I have said the present case is one that does not involve a defence of qualified privilege, comment or justification, and it is one in which the plaintiff is seeking to impose upon the defendant a duty of care not to publish 'untrue' statements." (at 43)

10. [98]

    The allegations contained in the Statement of Claim in the present case, (and in the proposed Amended Statement of Claim), involve circumstances that are materially different from those in Sattin. The plaintiff's allegation is that Chubb, as security provider to CBA, recorded images taken from security cameras installed on the premises. Breach of duty is alleged in Chubb failing to take steps to prevent the misuse of those images and, in particular, in failing to have a system that would prevent any misuse of the video images.

11. [99]

    An additional aspect to the allegations in the present proceedings relates to the written and offensive comments made in relation to the images themselves.

12. [100]

    Accordingly an aspect of the plaintiff's case on breach of duty, on the existing pleadings, is that Chubb failed to secure the CCTV images in a way that prevented them from being accessed and later used for producing images with offensive captions or comments.

13. [101]

    As discussed above the plaintiff also seeks to separately contend that Chubb and CBA are vicariously liable for the publication of the images of the plaintiff with the offensive comments. Whether vicarious liability could arise in CBA or Chubb as an employer, if those facts were proved, is an issue that the defendants dispute.

14. [102]

    In Sattin (supra), the plaintiff had sued for defamation based upon a photograph of the plaintiff in a newspaper article which was published with a caption, which in effect stated the plaintiff, a married woman, had married another man, which in fact was untrue. She pleaded defamation by innuendo; inter alia, the imputation that she was a bigamist.

15. [103]

    She sought to amend the Statement of Claim to include a negligence count, based on stated particulars which included a failure by the photographer, the sub-editor or other employee to ascertain her marital status before publication of the photograph.

16. [104]

    The present case, unlike Sattin, does not involve issues concerning a defence of qualified privilege, comment, or justification. In Sattin the plaintiff was seeking to impose upon the defendant a duty of care not to publish untrue statements.

17. [105]

    Further, the "publication" in Sattin involved a publication by way of a mass communication. In that context issues of freedom of speech and protection of reputation arose. The resolution of those competing interests had to be determined by the law of defamation.

18. [106]

    Accordingly, the proposed amendment in Sattin was found to be directed to the assertion of some type of common law duty of care in effect to, "get publication right" (at 43). In the present case there is neither a likely defence of qualified privilege nor an assertion of a common law duty to ensure that true or accurate information is provided in an instrument of mass communication. Questions of freedom of speech are not involved, nor is there any issue of "truth" involved. It is not a case where issues of public policy concerning a composition by a media publisher relevant to the law of defamation will arise. In other words, "publication" is not asserted in this case to be based on a composition by a media publisher by way of an account for public information.

19. [107]

    As earlier noted, the plaintiff in the present case alleges, in essence, a failure by the defendants to take precautions that would have prevented employees either from having access to the CCTV footage or taking steps to prevent employees or others from engaging in its unauthorised use. Failure to do so, according to the plaintiff's case, left open the prospect of an uncontrolled and scandalous use of the images. CCTV surveillance devices used for security purposes generates images for no other purpose or use than security. The plaintiff's claim in negligence is based upon the proposition that the person or entity that had custody or control of the CCTV material was subject to a duty to ensure that they were not used for unauthorised and/or unlawful purposes.

20. [108]

    In summary, this is not a case in which this action in negligence will involve consideration of competing interests requiring resolution by the law of defamation. It does not fall into that category of case where the tort of negligence is used simply to obtain an award of damages for injury to reputation: see Sattin (supra) at [43]-[44].

21. [109]

    The comments or remarks added to the images do not convey or purport to contain a statement of fact or opinion. On their face they are not of a nature that purport to convey the truth of specific information. In other words the plaintiff's complaint is not that they purport to convey "truth" about her but they were intended as degrading/offensive remarks.

22. [110]

    The plaintiff alleges against Chubb and CBA liability respectively for breaches of duty of care as contractor and employer, in particular a failure to put in place a system or take measures to guard against risk arising from the misuse of images captured by CCTV. The plaintiff's case is not based upon a common law duty of care to publish the truth about a particular matter as in Sattin. The allegations of "duty" are very different in nature.

23. [111]

    Subject to the question of amendment of the Statement of Claim (considered below) in relation to the proceedings against Chubb in so far as they are based upon common law negligence do not claim damages upon a basis that falls within the law of defamation. The application to strike out the Statement of Claim on that basis should accordingly be refused.

Ground 2 - Failure to identify perpetrator

1. [112]

   The fact that the plaintiff has not identified in the Statement of Claim the person or persons who accessed the CCTV film, created the still images, made captions or remarks on them or who posted them on Facebook does not in my opinion provide a basis for striking out the cause of action in negligence. There is no abuse of process or any other ground referred to in the UCPR rule 14.28 arising from the failure to identify the perpetrator(s) in the Statement of Claim. There is some affidavit material that suggests that the identity or identities of the person(s) responsible have been identified by one or both of the defendants. At this point it appears that that fact(s) may be readily established through discovery. Particulars, as necessary, may be sought following discovery.

2. [113]

   The fact that the images of the plaintiff were taken from footage from a CCTV camera utilised by Chubb under its contract with CBA provides a sufficient basis for the allegation that an employee(s) of Chubb was responsible. The only other known party to the surveillance contract was CBA, for whose benefit Chubb managed or administered the surveillance.

3. [114]

   It is not unusual in common law proceedings for an injured plaintiff to be unable to identify in initiating process the person or persons responsible for a particular act or omission (as for example on building or construction sites where a number of contractors were present during the time leading up to the accident).

4. [115]

   Accordingly, whilst there is no suggestion that the plaintiff is presently in a position to identify individual(s) responsible for the alleged acts, in terms of the viability of its claim against Chubb, the plaintiff's pleading does not suffer an incurable defect. The same comment applies to the specific matters referred to in [15] of the written submissions for Chubb.

Ground 3 - Tortious liability of Chubb for intentional acts of employees

1. [116]

   If the plaintiff adduces evidence that the images were displayed by an employee of CBA or Chubb, there will arise for determination whether there is a basis for vicarious liability in either company in relation to such misconduct.

2. [117]

   The plaintiff, however, as earlier stated, does not confine her action framed in negligence on the basis of vicarious liability. The plaintiff also pleads her cause of action against each defendant on a direct liability basis. As discussed above her case in that respect has been framed and proceeds upon the basis that one or other of the defendants failed to ensure, by implementing an appropriate system of safeguards, that the CCTV material was not available or could not be misused.

3. [118]

   There is a real issue between the parties as to whether either defendant could be held vicariously liable for the deliberate or intentional acts of an employee in improperly using CCTV footage as alleged. However, whilst that will be an issue of importance at a final hearing it does not in itself mean that the action in negligence itself is not viable. The question of liability may depend upon whether liability can be established on a "system" basis independently of vicarious liability.

4. [119]

   Accordingly, in those circumstances, there is, in my opinion, no basis for striking out the cause of action in negligence: General Steel Mains, supra.

F. The Civil Liability Act provisions - proceedings against Chubb

1. [120]

   It was submitted on behalf of Chubb that it is difficult to see how the plaintiff meets, even at an arguable level, the conditions imposed on the finding of duty of care, as set out in section 32(1) of the Civil Liability Act 2002, which provides: "A person (the defendant) does not owe a duty of care to another person (the plaintiff) to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken."

2. [121]

   I do not consider that a determination can be made that the plaintiff does not have an arguable case in terms of s 32(1) at this stage of the proceedings. The nature of the alleged "injury" is a matter for evidence. Such evidence will be relevant to the question of "foreseeability" referred to in s 32. The issue at trial will require consideration as to whether it was foreseeable that a female of the plaintiff's age and of normal fortitude, in the circumstances in which images of that person were publicly displayed on Facebook, together with what are contended to have been degrading commentary, would suffer some form of recognised psychiatric illness. There is evidence available from Dr Bertucen as to psychological "injury" having occurred as a result of the images being publicly displayed. Additionally, the plaintiff has, on the basis of the alleged "injury", been paid workers' compensation.

3. [122]

   There is no sound basis, in my opinion, for the submission, by Chubb, that "there is no conceivable basis ... for the conclusion required by s 32(1) ..." The issues under s 32 of the Civil Liability Act are to be determined at least in part as issues of fact in light of evidentiary material adduced led at trial and cannot be determined in this case on a summary disposal basis.

4. [123]

   In the alternative, in the event that Chubb fails on its application to strike out support for the whole of the plaintiff's claim in negligence, it seeks to strike out particulars (i), (j) and (k). As to particulars in (i) the alleged failure to warn the plaintiff of the risks of publication of the images.

5. [124]

   Paragraph 7 of the proposed Amended Statement of Claim sets out particulars of negligence in (a) - (k). I do not consider there is any basis for striking out (i) which was included in the particulars in the Statement of Claim filed on 18 August 2010. Whether that particular could have any application to the circumstances alleged can only be determined in light of evidence adduced in the proceedings.

6. [125]

   Subparagraph (j) alleges failure to prevent breaches of the Workplace Surveillance Act 2005 whilst (k) alleges breach of Part III of the Privacy Act (1998) (Cth).

7. [126]

   It is clear from the plaintiff's proposed Amended Statement of Claim that so far as CBA is concerned the plaintiff does not seek to formulate a cause of action for breach of statutory duty under The Workplace Surveillance Act. It is only relied upon as a particular of negligence. Accordingly, there is no basis upon which the plaintiff should not be permitted to rely upon it for that purpose. It has not been overlooked that s 18 of the Workplace Surveillance Act imposes an obligation on an employer. Chubb not being the plaintiff's employer that provision would not apply to it. It will be necessary to the plaintiff to provide particulars for alleged breach of that Act.

8. [127]

   Similarly, in relation to the particular in relation to (k) although breach of Part III of the Privacy Act is referred to, it is only proposed to be relied upon as a particular to support the cause of action framed in negligence. I am also of the opinion that, on that basis, there exists no reason that would prevent the plaintiff from relying on the particular in (k).

9. [128]

   In so far as the cause of action pleaded against CBA the proposed particulars of negligence in paragraph 11(j) and (k), there is no basis upon which the plaintiff should be prevented from relying upon (j) and (k)

G. The action against CBA - Was there an election by the plaintiff?

1. [129]

   An action for damages by an employee of the Commonwealth does not lie against, the Commonwealth, a Commonwealth authority, a licensed corporation or an employee unless the employee has made an election as specified in the SRC Act.

2. [130]

   CBA relied upon the affidavit of Samuel Kennedy, solicitor, affirmed 13 April 2011. The affidavit principally addresses material matters concerning the making of a claim for workers' compensation and the operation of the SRC Act.

3. [131]

   Mr Kennedy stated that the plaintiff commenced employment with the second defendant on or about 1 July 2003 at the Pitt Street Branch and on or about 30 January 2006 moved to premises of CBA at Olympic Park, Homebush.

4. [132]

   She submitted a workers' compensation claim on or about 12 March 2009: (Annexure "A" to the affidavit). The date of injury or illness first notified was entered as 4 January 2008.

5. [133]

   The plaintiff provided a medical certificate dated 20 February 2009 from Dr Reddy: (Annexure "B" to the affidavit).

6. [134]

   The plaintiff ceased work as a result of her alleged injury on 19 February 2009.

7. [135]

   Mr Kennedy in his affidavit stated that if the cause of action arose prior to 31 March 2008 then State's workers' compensation legislation (particularised in [13] of the affidavit) would apply.

8. [136]

   Mr Kennedy stated that the plaintiff had not satisfied the requirements of Part 5 of the Workers' Compensation Act 1987 (NSW) for reasons set out in the affidavit. If the cause of action arose after 31 March 2008, then the provisions of s 44 and 45 of the SRC Act applied.

9. [137]

   The submissions of both parties proceeded upon the basis that, having regard to the plaintiff's employment with CBA, the above mentioned provisions of the SRC Act applied to the present claim. I have accordingly proceeded upon that basis.

10. [138]

    Section 44 of that Act, so far as it is relevant for present case, provides as follows: Action for damages not to lie against Commonwealth etc. in certain cases (1) Subject to section 45, an action or other proceeding for damages does not lie against the Commonwealth, a Commonwealth authority, a licensed corporation or an employee in respect of: (a) an injury sustained by an employee in the course of his or her employment, being an injury in respect of which the Commonwealth ... would, but for this subsection, be liable (whether vicariously or otherwise) for damages; or ... (2) Subsection (1) does not apply in relation to an action or proceeding instituted before the commencement of this section. (3) ... (4) ... (Emphasis added)

11. [139]

    Section 45 deals with the subject of election by employees.

12. [140]

    The section, so far as it is relevant to the present case, provides: Actions for damages-election by employees (1) Where: (a) compensation is payable under section 24, 25 or 27 in respect of an injury to an employee; and (b) the Commonwealth, ... would, but for subsection 44(1), be liable for damages for any non-economic loss suffered by the employee as a result of the injury; the employee may, at any time before an amount of compensation is paid to the employee under section 24, 25 or 27 in respect of that injury, elect in writing to institute an action or proceeding against the Commonwealth ... for damages for that non-economic loss. (2) Where an employee makes an election: (a) subsection 44(1) does not apply in relation to an action or other proceeding subsequently instituted by the employee against the Commonwealth ... for the non-economic loss to which the election relates; and (b) compensation is not payable after the date of the election under section 24, 25 or 27 in respect of the injury. (3) An election is irrevocable. (4) ... (5) ... (Emphasis added)

1. [141]

   The parties agreed that the Commonwealth legislation and not the State legislation applied in this case (transcript at 18). Its application is based upon the deemed date of injury. (Section 7 of the SRC Act).

2. [142]

   Mr Samuel Kennedy annexed a number of documents to his affidavit affirmed on 13 April 2011. Annexure A to the affidavit is a copy of a claim for workers' compensation completed by the applicant and dated 9 March 2009. The document is date stamped 12 March 2009. The claim form attached a medical certificate, dated 20 February 2009, certifying the plaintiff unfit from 19 February 2009 to 20 February 2009. Section 7 of the SRC Act deems the date of injury to be the date on which the plaintiff sought medical treatment. In this case, the evidence indicates that that date was 19 February 2009. On this basis, the plaintiff accepted as earlier stated that the entitlement to compensation arose under the SRC Act.

3. [143]

   Mr Parker in his submissions for the second defendant, CBA, stated that, apart from any construction that was sought to be placed upon the correspondence in evidence to prove an election in writing, the fact was that the plaintiff did not have any rights to compensation until after the date of the deemed injury. Accordingly it was submitted, the plaintiff did not have any rights to compensation in 2008, being the year in which the correspondence relied upon occurred came into existence. In other words, there was no basis for a deemed injury until after the Medical Certificate dated 20 February 2009. The submission accordingly was: "... the plaintiff could not elect between alternative rights in 2008 as it is hypothesised or advanced by the plaintiff because there just wasn't anything to be dealt with." (T 18 October 2011 at 31)

4. [144]

   In Commonwealth v Flaviano (1996) 40 NSWLR 199 at 203, Sheller JA with whom Meagher and Beazley JA agreed, considered the provisions of ss 44 and 45 of the SRC Act. His Honour stated: "An election is a choice of alternative rights or claims. It may be made expressly or implied from conduct: see R P Meagher, W M C Gummow and J R F Lehane, Equity Doctrines and Remedies ...While in some circumstances the institution of proceedings may be treated as an act of election, strictly speaking it is conduct from which an election may be inferred. Section 45 speaks of the employee electing in writing. I would infer that the employee is required so to express his or her election so that there can be no doubt about the matter. The requirements of the subsection are not met by conduct from which an election could be implied, such as the institution of proceedings to recover damages. That this is so finds support in the language of s 45. Subsection (2) provides that when an election is made, subs(1) does not apply in relation to an action or other proceedings subsequently instituted by the employee against the Commonwealth ... Subsection (4) speaks of any action or proceeding instituted as a result of an election..." (Emphasis added).

5. [145]

   In determining whether an election has been made under the SRC Act, the following matters are to be taken into account: (i)Section 45 prescribes the mode by which an election is to be communicated, namely in writing. (ii)The terms of s 45 make it clear that there is a requirement for an employee to express his or her election with sufficient clarity so that there can be no doubt about the fact that the election has been made. (iii)Conduct from which it might be said an election could be implied is insufficient.

6. [146]

   In the present case, the issue of "election" requires consideration of the written communications annexed to Ms Catanzariti's affidavit. I have considered the individual written communications specifically relied upon in the submissions for the plaintiff in the context of the whole of the correspondence and the written material referred to by Mr Tobin QC in submissions for the plaintiff. In that respect I note: (i)The letter of 31 March 2008 written by Mr Conn went no further than to refer to rights of action for breach of statutory duty that may have been open to the plaintiff. (ii)The letter dated 30 April 2008 written by Mr Conn to the Acting General Counsel for CBA contended: (iii)The letter of 18 June 2008 merely recorded that the plaintiff's instructions were being sought.

   1. (1)

      That it appeared that the unauthorised publication of the plaintiff's "security shots" was indicative of CBA's failure to ensure that the surveillance record was not used or not disclosed for an unauthorised purpose.

   2. (2)

      That the plaintiff had a sense of violation and she had a concern that she was not being kept informed of the investigation being undertaken by CBA.

   3. (1)

      That a meeting would take place at which, inter alia, the appropriateness of compensation would be discussed.

7. [147]

   The making of an election under s 45 is not merely a statutory condition precedent to the commencement of proceedings. It is something without which the employee in question does not have a cause of action: see also Hobbins v Commonwealth of Australia [2003] NSWCA 206 at [19].

8. [148]

   The correspondence does not convey an election in express terms. Nor, in my opinion, does it convey, even in general or broad terms, that the plaintiff had made an election between alternative remedies or claims.

Decision

1. [149]

   The evidence does not establish that the plaintiff made an election in writing pursuant to s 45 of the SRC Act. In particular, the terms of the correspondence relied upon between the plaintiff's solicitor, Mr Conn, the general counsel and the Acting General Counsel, did not constitute an election in writing as the correspondence did not convey that an election had been made by the plaintiff.

2. [150]

   Further, the deemed injury occurred on 19 February 2009. There was no correspondence or other notice in writing of an election following that date.

3. [151]

   Accordingly, the requirement that there be a clear and an unambiguous written election for any cause of action against the second defendant was not satisfied.

4. [152]

   In those circumstances, the plaintiff's claim in negligence against CBA as employer is not maintainable. It follows that an order dismissing the proceedings against the second defendant in negligence should be made on that basis.

H. Proposed amendments to the Statement of Claim

1. [153]

   The plaintiff seeks leave to amend the Statement of Claim for the following purposes: (1)The addition of further particulars of negligence against Chubb paragraphs: [7] (i) and (k), as against CBA [11] (i) and (k) (2)The inclusion of proposed paragraphs: [13], [13A] - [13C], [14A]-[14G] (3)The inclusion of proposed paragraph: [15] - allegations of loss and damage and claims for exemplary, aggravated damages and injunctive relief.

2. [154]

   The proposed Amended Statement of Claim includes a number of deletions from the Statement of Claim that need not be detailed here. Set out below are the proposed new causes of action in paragraphs [13], [13A] - [13C], [14A] - [14G] and [15] of the proposed Amended Statement of Claim. "13On or around 13 December 2007 until on or around 18 January 2008 the defendants by themselves, their servants and agents published of and concerning the plaintiff on the social networking site, Facebook, words and images which are set out in Schedule A and transcribed in Schedule B ("the matter complained of"). 13AThe matter complained of was published without the plaintiff's permission on a fake Facebook page in that it was attributed to her and set up without her consent. 13BThe matter complained of in its natural and ordinary meaning was defamatory of the plaintiff and conveyed the following defamatory imputations a.The plaintiff was a tart. b.The plaintiff was a crude woman lacking modesty. c.The plaintiff was crass in her social conduct. d.The plaintiff aggressively flaunted her sexuality. 13CBy the publication of the matter complained of the plaintiff has been brought into public ridicule and contempt and has suffered and continues to suffer loss and damage to her reputation and has further suffered and continues to suffer injury to her mind and body and financial loss. 14AFurther or in the alternative, the defendants by themselves, or by their servants and agents by publishing the matter complained of on a fake Facebook page attributed to the plaintiff thereby wrongfully engaged in the harassment of the plaintiff ("the harassment") 14BFurther or in the alternative, the defendants by themselves or by their servants and agents by publishing the matter complained of in a fake Facebook page attributed to the plaintiff engaged in wrongful and wilful conduct calculated to cause harm to the plaintiff and as a result of which the plaintiff has sustained serious illness ("the intentional infliction of harm"). 14CFurther or in the alternative, the defendants by themselves or by their servants and agents in the recording and retention of the images of the plaintiff which were obtained by security cameras which were operated by the first defendant with the knowledge and consent of the second defendant at the premises of the second defendant did so in the knowledge that those images were both confidential and, in the circumstances of their being taken, were not to be made available for viewing by members of the public at large but were to be retained solely as information to be kept private and used for security purposes and no other purpose and the defendants in publishing the said images to the world at large thereby wrongfully breached their duty of confidence to the plaintiff ("the breach of confidence"). 14DFurther or in the alternative, the defendant by themselves or by their servants and agents by publishing the matter complained of on a fake Facebook page attributed to the plaintiff thereby appropriated to their own use or benefit the name and likeness of the plaintiff thereby wrongfully invading her privacy ("the first invasion of privacy"); 14EFurther or in the alternative, the defendants by themselves or by their servants and agents by publishing the matter complained of on a fake Facebook page attributed to the plaintiff thereby published to all users of the internet freely able to access photographs and comments concerning the private life of the plaintiff which matter would be highly offensive to a reasonable person and of no legitimate interest to the public thereby wrongfully invading her privacy ("the second invasion of privacy"). 14FFurther or in the alternative, the defendants by themselves or by their servants and agents by publishing the matter complained of on a fake Facebook page attributed to the plaintiff thereby placed the plaintiff in a false light to members of the public which would be highly offensive to a reasonable person and they did so with knowledge of the falsity of the publicised matter and the false light in which they had placed the plaintiff or alternatively with reckless disregard to that falsity thereby wrongfully invading her privacy ("the third invasion of privacy"). 14GBy reason of the facts and matters set out in paragraph 14C, and in using images of the plaintiff taken solely for security purposes and broadcasting it over the internet, the defendants intruded on the plaintiff's seclusion or solitude in a manner highly offensive to a reasonable person. 15By reason of the wrongful conduct set out above, namely negligence, defamation, the first, second and third breaches of privacy, harassment, the intentional infliction of harm, and the breach of confidence, the plaintiff has suffered loss and damage. And the plaintiff claims a.Damages b,Aggravated damages. PARTICULARS The conduct of the defendants was improper or unjustifiable or lacking in bond fides in publishing without her consent to the world at large, with the addition of offensive commentary, security camera images of the plaintiff, and the manner of the publication was at all times such as to entitle the plaintiff to aggravated damages. c.Exemplary Damages d.Injunction PARTICULARS An injunction for the delivery up of the original images and all recordings and copies, both digital and print, of the offending images; and an injunction to restrain the defendants from publication of the said images of the plaintiff and any further images of the plaintiff taken in the workplace other than for the purposes of security. e.Interest f.Costs" (Emphasis added.)

3. [155]

   I will commence by considering the proposed cause of action for breach of confidence/privacy.

Proposed action - breach of confidence

1. [156]

   The pleaded cause of action for "breach of confidence" set out in [14C] of the proposed Amended Statement of Claim is founded on the premise that there existed an obligation of confidence in the first and/or second defendant in relation to the images downloaded onto Facebook.

2. [157]

   The proposed cause of action alleges that the disclosure or publication of the images constituted a breach of a duty of confidence owed to the plaintiff.

3. [158]

   The initial issue is whether or not there is a basis on which the plaintiff should be granted leave to amend her Statement of Claim to include the proposed cause of action.

Plaintiff's submissions

1. [159]

   Mr Tobin relied upon the observations of Gleeson CJ in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2000) 208 CLR 199 at [35] in which the Chief Justice expressed agreement with the proposition stated in Hellewell v Chief Constable of Derbyshire [1995] 1 WLR 804 at 807 as to the invasion of privacy from the use of a telephoto lens: "... the law would protect what might reasonably be called a right of privacy, although the name accorded to the cause of action would be breach of confidence."

2. [160]

   The submissions for the plaintiff proceeded upon the basis that the proposed cause of action is to be seen in light of the observations of the High Court in Lenah Game Meats as to the categories of privacy interests that have been recognised in US jurisprudence. Reference was also made to the varieties of privacy interests that were discussed in the joint judgment of Gummow and Hayne JJ in that case at [120].

3. [161]

   A number of matters were raised on behalf of the plaintiff in relation to the proposed causes of action in paragraphs 14A, wrongful harassment, 14B, intentional infliction of harm, 14C, breach of confidence, 14D, appropriation of the plaintiff's likeness for the defendant's own use and benefit, 14E, publishing photographs and comments concerning the private life of the plaintiff, 14F, publishing photographs and comments of the plaintiff so as to place her in a false light and 14G, intrusion upon the plaintiff's solitude or seclusion: Written Submissions on behalf of the Plaintiff: 17 October 2011 at 5-13 and Plaintiff's Supplementary Submissions: 9 December 2011 at 9 and 11.

4. [162]

   The plaintiff's submissions by reference to the High Court's decision in Lenah Game Meats sought to support the inclusion of causes of action based on breach of confidence and breach of privacy principles and this by reference to "categories of privacy interests" discussed in [8] and [9] of the Plaintiff's Written Submissions (17 October 2011). It was submitted that a claim based on "publicity given to private life" and "publicity placing person in a false light" finds support in the discussion by Gummow and Hayne JJ in Lenah Game Meats of the protection of privacy and the possible availability of a legal remedy to protect "a secluded and private life free from prying eyes ears and publication of others" a reference to s 652A of the Second Restatement referred to in Lenah Game Meats: Plaintiff's Written Submissions at [9].

5. [163]

   In the submissions it was contended that although intermediate appellate courts have not adopted the language of "a tort of invasion of privacy" they have nonetheless recognised the existence of privacy interests, breaches of which are compensable under the general law: Plaintiff's Written Submissions at [11].

6. [164]

   In [13] of those submissions it was argued that the "privacy interests" identified in 14D - 14G of the proposed amended pleading were arguably protected under the following headings: (1) Breach of confidential information as extended to the personal and private life of the plaintiff. (2) Appropriation of the plaintiff's image without consent, not limited to commercial exploitation. (3) Use of confidential information (extended by the Courts to include the personal and the private) to place the plaintiff in a false light.

First defendant's (Chubb's) submissions

1. [165]

   Mr Dawson in the First Defendant's Supplementary Submissions submitted that the plaintiff had not attempted to identify the elements of a tort of invasion of privacy for the purposes of Australian law. Reference was made to shat was suggested to be a reluctance by Australian courts to pursue the development of a tort for breach for privacy. Reference was also made to problems associated with the adoption of what is referred to as the "four American torts" and that there needed to be a case that represented a suitable "vehicle" that properly articulated the proposed cause of action with an attempt to identify the applicable elements of the tort: At [51]. In the course of his submissions Mr Dawson referred to the decision of the New Zealand Court of Appeal in Hosking v Runting [2005] I NZLR 1 in which at [117] the Court set out four elements identified as follows: (i) That the disclosure of the private facts must be a public disclosure and not a private one. (ii) Facts disclosed to the public must be private facts and not public ones. (iii) The matter made public must be one which would be highly offensive and objectionable to a reasonable person of ordinary sensibilities. (iv) The nature and extent of legitimate public interest in having the information disclosed must be weighed. First Defendant's Supplementary Written Submissions at [55].

2. [166]

   Mr Dawson also relied upon the following submissions, which I extract below: [43] While relevant authorities do not, by any means, shut out the possibility of the development at common law of a cause of action for an invasion of privacy or a breach of privacy (see the detailed consideration of the question by Katzmann J in Dye v Commonwealth Securities Ltd [2010] FCA 720 at [273] - [290]), a clear theme emerges from many of the judgments which have considered it. That theme is, it is submitted, that it is very difficult to resolve the substantial definitional problems with which one is confronted in trying to articulate how the tort might operate. [44] For example, in Lenah Game Meats, Gleeson CJ at [41] - [43] identified some of the difficulties, introducing his remarks by saying "... the lack of precision in the concept of privacy is a reason for caution in declaring a new tort of the kind for which the respondent contends." If there is a lack of precision of the concept of privacy, there is an even greater lack of precision in the plaintiff's attempt to plead a cause of action based on a tort of invasion or breach of privacy, rendering the current proceedings an entirely inappropriate vehicle for the asserted tort to be developed. ... [58] While it is not the place of these submissions to attempt to define comprehensively the elements of a proposed tort of invasion of privacy as it might apply in Australia, it is instructive to identify some of the basic concepts which appear to be central to the formulations which emerge from the relevant cases. They include at least the following concepts: a) There must be publicity of some kind (that is disclosure or publication to third parties) of the private information; b) The information said to be private must be factual, that is, true: c) The circumstances must be such that the complainant had a reasonable expectation of privacy; and d) The disclosure or publication of the information to others must be considered by a reasonable person to be highly offensive. ... [60] First, as examined above, there is no actual publication or disclosure - or publicity - pleaded or particularised. ... [61] Secondly, the publication complained of is, on the plaintiff's own case, false. It is clear that the affront to the plaintiff by reason of the publication alleged is by reason of the "humiliating commentary" which accompanied the photo galleries on the false Facebook page, as well as the suggestion that the plaintiff herself had uploaded the material herself and was the author of the commentary. ... [62] Thirdly, a claim based purely upon the publication of the images without the accompanying humiliating commentary would not satisfy the third and fourth concepts. ... [63] It follows that there is no proper basis for an exercise of discretion in the plaintiff's favour to allow her to amend to include the proposed pleading of the tort of invasion of privacy. ... ... [66] In addition to the submission already made, and the adoption of the Court's observations during argument, the first defendant submits that a further reason for refusing leave to amend to include a claim for breach of confidence is that, upon the assumption that the confidential information is said to be the whole of the Facebook material (that is, the photos and the commentary) such a pleading is unsustainable in light of the plaintiff's allegation that the information is untrue. Confidential information must necessarily be true in order to [sic] confidential, [67] Alternatively, if the confidential information is said to be the images alone, it is unsustainable to suggest that information has the requisite quality of confidence.

3. [167]

   Mr Dawson submitted that there is nothing inherently private about the CCTV footage of a person in the common or public areas of a workplace which reveals nothing about that person which anyone who saw the person would not otherwise know: First defendant's Supplementary Submissions at [62]. Publication of the images, in other words, would not amount to a breach of confidence as the information (the images) were not themselves "private" in the relevant sense of that term.

4. [168]

   In the determination of the competing submissions made on behalf of the plaintiff and Chubb it is necessary to take into account the following: (i) Depending upon the circumstances the disclosure of photographic images may, in particular circumstances, be actionable as a breach of confidence: Hellewell v Chief Constable of Derbyshire [1995] 1 W.L.R. 804 at 807. (ii) Where a photograph is taken of a person for use for certain purposes only, the photographer in question who uses a photograph for an unauthorised purpose of his or her own, may be the subject of a claim based on breach of confidence. That situation has arisen in a case where the photographer was hired to take the original photograph: Pollard v Photographic Co (1888) 40 Ch.D 345. (iii) It may be accepted that if a person with a telephoto lens, from a distance, and with no authority, took a picture of another engaged in a private act, the subsequent disclosure of the photograph would amount to a breach of confidence: Hellewell v Chief Constable of Derbyshire, supra, at 807. In such a case the law would protect what has been called a right of privacy although the remedy may be based on a cause of action for breach of confidence. (iv) A remedy may be available against a person for breach of privacy even though that person may not have been subject to a contractual obligation. A duty of confidence may arise out of a relationship between the parties: Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, 291. (v) Where a person takes a photograph of another, even though the consent of that person may not be required there may, in the circumstances, nonetheless exist a restriction on the use of the photograph. Accordingly, the circumstances in which the photograph is taken may, for example, include a situation where the person, the subject of the photograph, had no choice. This would be the case with a CCTV camera operating for security purposes. It is, in my opinion, at least arguable that that is a circumstance that prevents the photographic images taken from the camera from being used for unauthorised purposes. (vi) Although the photographic image may be one of a person, such as the plaintiff, in a public place that would not, in my opinion, necessarily mean that the security company is free to utilise a photographic image taken for a purpose beyond that for which it was taken. (vii) In the latter situation, even though a person entering or leaving a building whose image is captured by a CCTV image is not engaged in a "private" activity, the downloading of still images from the CCTV footage and its use for an improper purpose could be said to constitute an invasion of the subject's right to expect that the CCTV footage be used for one purpose and one purpose only, namely security.

Decision

1. [169]

   In 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.

2. [170]

   Whilst 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."

3. [171]

   The 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).

4. [172]

   It 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."

5. [173]

   In 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.

6. [174]

   As 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.

7. [175]

   The 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]).

8. [176]

   On 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.

9. [177]

   Mr 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].

10. [178]

    The 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."

11. [179]

    As 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].

12. [180]

    In 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.

13. [181]

    There is sufficient basis to support the plaintiff's case that the images of her were disclosed, published or downloaded.

14. [182]

    So 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]).

15. [183]

    In 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.

16. [184]

    A 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.

17. [185]

    In 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].)

18. [186]

    Whilst 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.

19. [187]

    Any 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.

20. [188]

    On 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].

21. [189]

    I 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.

22. [190]

    Section 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)

23. [191]

    The 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.

24. [192]

    The 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.

Proposed action - the tort of intentional infliction of harm or harassment

1. [193]

   In the proposed Amended Statement of Claim, a cause of action framed as the intentional infliction of harm is set out in [14B] of the draft pleading, which is set out above.

2. [194]

   In the written submissions on behalf of the plaintiff dated 17 October 2011, in support of the application to amend, reference was made to the fact that the intentional infliction of harm to an individual as a cause of action is based on the decision in Wilkinson v Downton [1897] 2 QB 57, applied in Bunyan v Jordon [1937] 57 CLR 1. Reference was also made to the decision in Carrier v Bonham [2002] 1 QdR 474 at 480-1, 483.

3. [195]

   In paragraph [5] of the written submissions for the plaintiff it was submitted that, properly analysed, "harassment" may be regarded as a variant of intentional infliction of harm to the individual.

4. [196]

   In the First Defendant's Supplementary Submissions at [32] it was submitted that the question for decision was whether in the circumstances of the case the plaintiff should be given leave to amend her pleadings to include a claim a set out in paragraph [14B] of the proposed amended pleading. It was submitted for Chubb that leave should not be granted.

5. [197]

   In this respect it was submitted: "[34] On the assumption that the plaintiff is able to establish that the 'wrongful and wilful conduct' alleged was the conduct of an employee of the first defendant, the first defendant will only be liable if it can be established that it is vicariously liable for that conduct."

6. [198]

   The first defendant's submissions noted that the conduct which the plaintiff seeks to plead and rely upon was said to be "wrongful and wilful" conduct and being conduct "calculated to cause harm to the plaintiff".

7. [199]

   The submission for Chubb was that, as a matter of law, it is only in limited circumstances that a plaintiff will be entitled to recover on the basis of vicarious liability for an intentional tort (as distinct from negligence). In this respect, reference was made to the observations in New South Wales v Lepore [2003] HCA 4; 212 CLR 511 at [225] - [239].

8. [200]

   It was submitted that in the present case there is no properly articulated basis for an allegation of vicarious liability on the part of Chubb (assuming that the relevant conduct was that of one of its employees) in accordance with principles enunciated in Lepore. The principles in that case were discussed and applied by the Court of Appeal in Nationwide News Pty Ltd v Naidu [2008] NSWCA 377; 71 NSWLR 471. In that case, the respondent, a security guard, was awarded damages in respect of injury to his mental health suffered whilst working for his employer, a security firm at premises operated by Nationwide News Pty Ltd. Due to humiliating and harassing treatment by his supervisor, a senior officer of Nationwide, the security guard suffered psychiatric injury. It was held that Nationwide was vicariously liable for the tortious misconduct of its officer toward the security guard. The Court of Appeal stated that the officer's treatment of the security guard in the course of exercising authority over him in the performance of his duties, was sufficiently connected with the officer's duties to make the corporation vicariously liable for it.

9. [201]

   Beazley JA observed that: "... there must be a sufficient connection with the duties and responsibilities of the employee as employee, for the employer to be vicariously liable. An employer will not be vicariously liable for a wrongful act if it is committed by the employee in what is often described as being 'upon a frolic of his own' ..."

10. [202]

    In Nationwide no error had been found in the trial judge's findings that the officer's conduct was sufficiently connected with his duties. In particular the relevant conduct was part of the manner in which the officer directed the plaintiff/respondent in the performance of his duties.

11. [203]

    In the present case, Mr Dawson on behalf of Chubb, submitted that the conduct of Chubb's or CBA's putative employee could not be said to satisfy the tests for vicarious liability as enunciated by the High Court in Lepore or as enunciated by the Court of Appeal in Nationwide. In that respect it was submitted that there was no basis upon which any of the following matters could be established: (a) That the employee's conduct was so closely connected with his responsibilities as to be in the course of his employment. (b)That the conduct of the employee was the "doing of an authorised act in an unauthorised way" and vicariously liability could be justified "on the basis of ostensible authority." (c) That there was a "close connection" between what was done and what the person in question was engaged to do. The duties of the putative employee could not be said to encompass use of the images and captions as alleged in the Statement of Claim.

12. [204]

    Accordingly, it was submitted that on no basis could the view be formed that an employee of the first defendant (and, it would follow, an employee of Chubb), who it may be assumed obtained images in an unauthorised manner and then posted them on a fake social media page, was acting in the scope of his or her employment.

13. [205]

    I accept the submissions made on behalf of Chubb. The question of the grant of leave turns upon the nature of the allegation sought to be made as the basis for establishing vicarious liability in the defendants, in particular in Chubb - namely an intentional act of an employee, or possibly a former employee, to publish offensive commentary and images of the plaintiff. There was no submission made, nor could there have been, that such conduct fell within any of the circumstances in (a), (b) or (c) in [203] above.

14. [206]

    In the circumstances there does not, in my opinion, exist a proper basis for the grant of leave to amend to include a claim based on intentional infliction of harm. The application to do so must accordingly be refused.

Conclusions

1. [207]

   In relation to the multiple applications I set out below conclusions and orders in relation to each.

(a) Defamation:

1. [208]

   In accordance with the findings set out and discussed above, the plaintiff's proceedings in defamation against her former employer are not maintainable. The proceedings in defamation are statute-barred. An extension of the limitation period is not available as the statutory requirement for an extension prescribed in s 56A of the Limitation Act has not been satisfied.

(b) Negligence

1. [209]

   The proceedings in negligence for personal injury damages are not maintainable against CBA. The plaintiff's proceedings, as the former employee of CBA, are subject to provisions of the SRC Act. Section 44 of that Act applies to proceedings for damages in respect of injury sustained by an employee in the course of his or her employment. The right to claim damages arises where an employee makes an election in writing to institute an action or proceedings against the Commonwealth, a Commonwealth authority or a "licensed corporation". If an election is not made as specified in s 45, then s 44(1) of the above Act prohibits an action for damages. The plaintiff, on the finding made above, did not make an election in accordance with s 45(1). Accordingly, s 44(1) is a bar to the plaintiff's action.

2. [210]

   The plaintiff's application to amend the Statement of Claim to include a cause of action for breach of confidence against the defendants should be granted upon the basis that it would raise a triable claim. Leave to amend may be granted not withstanding expiration of the limitation period: s 65(2) of the Civil Procedure Act 2005.

3. [211]

   I make an order under s 65(2) of that Act granting leave to amend the Statement of Claim to plead an action for breach of confidence against the first and second defendants.

2. Plaintiff's Notice of Motion filed 9 May 2011

1. [212]

   The plaintiff sought an order granting leave to amend the Statement of Claim to specify imputations.

2. [213]

   As the plaintiff's proceedings in defamation are statute-barred and no extension of the limitation period may be made under s 56A of the Limitation Act, there is no basis for the order sought in this Notice of Motion.

3. [214]

   Accordingly an order is made dismissing the above Notice of Motion.

3. Plaintiff's Notice of Motion filed 14 July 2011: Order sought against Chubb.

1. [215]

   The plaintiff sought an order granting leave to file an Amended Statement of Claim to bring in additional causes of action, namely, invasion of privacy, harassment, intentional infliction of harm and breach of confidence.

2. [216]

   Leave to amend the Statement of Claim against Chubb to include a cause of action for breach of confidence should be granted upon the basis that the application to amend raises a triable claim: s 65(2) of the Civil Procedure Act applies.

3. [217]

   The proposed actions based upon an intentional infliction of harm and harassment, on the facts pleaded, could not constitute conduct for which either defendant could be made vicariously liable. The order sought in the above Notice of Motion for leave to file an Amended Statement of Claim to include the above-mentioned proposed causes of action is refused.

4. Chubb's Notice of Motion filed 14 April 2011

1. [218]

   The first defendant, Chubb, sought a strike-out order or an order for dismissal of the Statement of Claim and in the alternative that the claim for defamation pleaded against Chubb be struck out or dismissed.

2. [219]

   In accordance with the determination set out above, the application to strike out or dismiss the pleaded cause of action in negligence is refused.

3. [220]

   The pleading of the cause of action in negligence against the first defendant, however, is defective. Leave is granted to the plaintiff to re-plead her cause of action against the first defendant Chubb in negligence in proper form.

4. [221]

   The plaintiff's action in defamation against Chubb is statute-barred and no extension of the limitation period may be granted under s 56A of the Limitation Act. That action accordingly should be struck out.

5. The plaintiff's Notice of Motion dated 29 September 2011 (unfiled)

1. [222]

   Leave is granted to the plaintiff to file this Notice of Motion in the Registry. Leave is granted to re-list the Notice of Motion.

Order 1: the first defendant (Chubb)

1. [223]

   1.1) On the Notice of Motion filed by the first defendant (Chubb): (i) Order that the plaintiff's claim against the first defendant in defamation is struck out. (ii) The application of Chubb to strike out the plaintiff's cause of action in negligence is dismissed. Leave is granted to the plaintiff to amend and replead the cause of action in negligence in proper form. 1.2) On the plaintiff's Notice of Motion filed on 14 July 2011: (i) An order granting leave to the plaintiff to amend the Statement of Claim to include a cause of action against the first defendant based upon breach of confidence. (ii) The application to amend the Statement of Claim to include causes of action for intentional infliction of harm and harassment is dismissed.

Order 2: the second defendant (CBA)

1. [224]

   2.1) On the plaintiff's Notice of Motion filed on 14 July 2011: (i) Leave is granted to the plaintiff to amend the Statement of Claim to plead a cause of action against the second defendant (CBA) based on breach of confidence. (ii) The plaintiff's application to amend the Statement of Claim to include causes of action for intentional infliction of harm and harassment is dismissed. 2.2) On the Notice of Motion filed on behalf of the second defendant (CBA) and subject to Order in 2.1 above: (i) The plaintiff's claim on the cause of action in defamation is struck out. (ii) The plaintiff's claim on the cause of action in negligence is struck out.

Order 3:

1. [225]

   On the plaintiff's Notice of Motion dated 29 September 2011 (unfiled) leave is granted to the plaintiff to file the Notice of Motion in the Registry. Leave granted to approach the Registrar for allocation of a hearing date in the event that subpoenas referred to in the Notice of Motion have not been complied with.

Order 4:

1. [226]

   The plaintiff's Notice of Motion filed on 9 May 2011 for an order amending the Statement of Claim to specify imputation is dismissed.

Order 5:

1. [227]

   Liberty to the second defendant, CBA, to apply in respect of particulars of claim as sought in its Notice of Motion filed on 13 April 2011.

Order 6:

1. [228]

   Liberty to the plaintiff to apply in respect of orders sought in its amended Notice of Motion dated 29 September 2011 in respect of [3] and [4] therein.

Order 7

1. [229]

   Liberty to the parties to apply in relation to costs.