Serious invasion of privacy in Australia: First court decision under the new Privacy Act tort
Australia’s new statutory tort for serious invasion of privacy is already being tested in the courts.
In Kurraba Group Pty Ltd & Anor v Williams [2025] NSWDC 396, the District Court of New South Wales delivered the first published decision considering the new statutory cause of action introduced by the Privacy Act 1988 (Cth) for serious invasion of privacy. While the decision relates to an interlocutory application rather than a final determination, it provides valuable guidance on how Australian courts may approach claims involving the misuse of private information and the publication of intimate personal material.
The case also demonstrates that courts are prepared to grant urgent injunctive relief where there is evidence of a serious invasion of privacy.
Australia’s statutory tort for serious invasion of privacy
Commencing on 10 June 2025, the Privacy and Other Legislation Amendment Act 2024 (Cth) introduced a statutory tort for serious invasions of privacy.
For the first time, Australian individuals have a direct statutory cause of action where another person intentionally or recklessly commits a serious invasion of their privacy.
To establish the tort, a plaintiff must show that:
the defendant intentionally or recklessly intruded upon the plaintiff’s seclusion or misused the plaintiff’s personal information;
a person in the plaintiff’s position would have had a reasonable expectation of privacy;
the invasion was serious; and
the public interest in protecting the plaintiff’s privacy outweighs any competing public interest, such as freedom of expression or reporting.
The legislation is intended to fill a longstanding gap in Australian law by providing remedies for serious privacy breaches that may not be adequately addressed through defamation, breach of confidence or existing privacy legislation.
The background
The proceedings arose from a dispute concerning a proposed redevelopment in Alexandria, Sydney.
Kurraba Group Pty Ltd, a property development company, and its CEO, Nicholas Smith, commenced proceedings after a tenant occupying premises affected by the proposed development began what the Court described as a campaign involving extensive publications directed at the plaintiffs.
Among other things, the defendant:
lodged extensive objections to the proposed development;
published a one-star Google review;
made public submissions containing harmful allegations about the plaintiffs;
created a website publishing numerous allegations concerning the plaintiffs; and
published private wedding photographs of Mr Smith without his consent.
The plaintiffs alleged that the photographs, which had never been intended for public dissemination, were published in a way designed to portray Mr Smith negatively by implying moral impropriety rather than depicting the private celebration of his marriage.
The proceedings sought urgent interlocutory relief in defamation, intimidation and under the newly introduced privacy tort.
The Court’s approach to the privacy tort
Justice Gibson concluded that there was a serious question to be tried in relation to the statutory tort for serious invasion of privacy.
Importantly, Her Honour acknowledged an issue that is likely to arise frequently in privacy proceedings: that repeating the material complained of in in the proceedings may itself worsen the invasion of privacy.
Accordingly, the Court deliberately limited its description of the material said to constitute the privacy breach.
In considering whether the statutory elements were capable of being established, Justice Gibson observed that:
the wedding photographs were private images that had never been intended for public publication;
weddings are, by their nature, occasions where individuals ordinarily expect privacy;
Mr Smith and his wife were private individuals rather than public figures; and
the photographs had allegedly been used for the purpose of portraying Mr Smith in a false and disparaging light.
These matters were sufficient for the Court to conclude that there was a serious issue to be determined.
Public interest and the journalism defence
One of the notable aspects of the new statutory tort is the requirement that the Court balance competing public interests.
Unlike some overseas privacy regimes, the Australian legislation expressly requires courts to consider whether protecting an individual’s privacy outweighs any competing public interest, including freedom of expression or reporting.
In this case, the defendant sought to characterise aspects of the publications as investigative journalism.
Justice Gibson rejected that contention, observing that the evidence did not support any legitimate journalistic purpose. Instead, Her Honour stated that the conduct appeared to be one of extortion rather than journalism.
This finding was significant in the Court’s assessment of the balance of convenience and the appropriateness of granting urgent relief.
The injunctions granted
The Court granted an injunction pending the final hearing, which included orders restraining the defendant from:
publishing material identifying Mr Smith, Kurraba Group or the proposed development;
republishing or continuing to publish the impugned material;
maintaining online publications referring to the plaintiffs; and
encouraging others to engage in conduct prohibited by the Court’s orders.
The Court also ordered the defendant to remove existing online publications within two days.
These orders demonstrate that courts are prepared to act swiftly where ongoing publications are alleged to cause continuing harm through both defamation and serious invasions of privacy.
Why this decision matters
Although Kurraba Group Pty Ltd & Anor v Williams was an interlocutory decision, it is an important milestone in the development of Australian privacy law.
The judgment provides the first judicial consideration of the statutory tort and offers valuable insight into how courts may approach:
misuse of private photographs;
reasonable expectations of privacy;
balancing privacy against freedom of expression;
applications for urgent injunctions; and
the interaction between privacy claims, defamation and other causes of action.
The decision also suggests that courts will not hesitate to grant urgent relief where private information continues to be published online.
What this means for individuals and businesses
The introduction of the new privacy tort significantly expands the legal options available to individuals whose privacy has been seriously invaded.
It also creates new legal risks for businesses, employers, media organisations and individuals who collect, use or publish personal information. Content published online, including social media posts, websites, emails and photographs, may now expose publishers to liability beyond traditional defamation claims.
Organisations should review their privacy policies, internal procedures and publication practices to ensure they comply with the evolving legal landscape.
Authored by Michael Finch & Darci Collins of HFK Lawyers
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Partner of HFK Lawyers, Michael has been closely involved in delivering results for clients involved in complex litigation and adjudication in both State and Federal Courts, as well as having acted for clients in a number of alternative dispute resolution forums.
Michael is a keen strategist who works to minimise the effects of litigation on his clients.
Michael is highly competent in the areas of building and construction law, insolvency, and defamation. He frequently publishes articles and presents them to industry stakeholders on these topics. As an accredited graduate of the Australian Restructuring Insolvency Turnaround Association, Michael works closely with leading insolvency practitioners. To complement his court experience in dealing with complex corporate insolvency matters, Michael has completed the Advanced Certification in Insolvency, Restructuring, and Turnaround accreditation through ARITA.
Darci Collins is a Law Graduate at HFK Lawyers, working primarily in Defamation and Commercial Litigation. She graduated from Macquarie University in 2025 with a double degree in a Bachelor of Laws and a Bachelor of Arts, majoring in Criminology with a minor in Psychological Science.
Darci brings a focused understanding of reputational harm, contractual disputes, and complex commercial matters. With a precise and analytical approach, she supports clients in managing litigation risks and navigating legal challenges with confidence. Her commitment to clear and effective outcomes ensures support throughout all stages of the litigation process.