Financial remedies case including an analysis of matrimonial property regimes and more helpfully a straightforward analysis of the law relating to periodical payments. One of the issues in the case was the weight to be attached to an alleged agreement between the parties that they had adopted a matrimonial property regime of separate property that was made when they married in catalonia. In addition, there was a further express separation of property agreement made in another country but the need for anonymity in the reporting of the case restricts the helpfulness of the comparison. However, mostyn j does provide a helpful review of the type and form of pre nuptial agreement with consideration of the law commission consultation paper no. In addition, the judge reviews his summary in kremen v agrest no.11 financial remedy: non disclosure: post nuptial agreement 2012 ewhc 45 fam of the effect of granatino v radmacher 2011 ac534, sc. 2 2011 ewhc 2878 fam and reproduction in the judgment of a critique on catalan law leads the judge to a conclusion that the court may depart from the default position where it would be unjust to implement it and likely to be so when economic imbalance exists between the parties.

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In considering the applicable principles relevant to capital division, it is held that the principles of sharing and need are likely to be the most applicable and compensation is restricted to exceptional cases as exemplified in mcfarlane v mcfarlane 2006 2 ac 618. Mostyn j concludes, however, that the law relating to an award of periodical payments is not so clear. In analysing the approach to such an award he states that simplicity and clarity are needed in this area just as much in the field of capital division. A periodical payments claim should, the judge held, be adjudged or settled , generally speaking, by reference to the principle of need alone. The judge hereby gives leave for it to be reported in its anonymised form as b v s financial remedy: marital property regime. The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them may be identified by name or location.

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In particular the anonymity of the children and the adult members of their family must be strictly preserved. Case no: fd09d06007 neutral citation number: 2012 ewhc 265 fam in the high court of justice the human rights act 1998 also known as the act or the hra came into force in the united kingdom in october 20. It is composed of a series of sections that have the effect of codifying the protections in the european convention on human rights into uk law. All public bodies such as courts, police, local governments, hospitals, publicly funded schools, and others and other bodies carrying out public functions have to comply with the convention rights.

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This means, among other things, that individuals can take human rights cases in domestic courts they no longer have to go to strasbourg to argue their case in the european court of human rights. The act sets out the fundamental rights and freedoms that individuals in the uk have access to. For more information on where your human rights are set out, who the human rights act applies to, and if human rights can be restricted, see how do human rights work? 74.112 in the absence of a statutory cause of action for serious invasion of privacy, the common law in this area will continue to develop through the australian courts. Whether this evolution results in the recognition of a tort of invasion of privacy, the adoption of the uk’s approach to breach of confidence, a combination of the two, or a rejection of the international trend, is an open question. 74.113 if australian courts follow the uk’s approach of developing the cause of action within the equitable action for breach of confidence, or decide tort law should be the preferred vehicle, they will have to develop the cause or causes of action within the rules of equity and tort. This has an impact on the circumstances that will be recognised as giving rise to the cause of action, and on the remedies available to address the wrong.

74.114 sir roger toulson, co author of a leading text on confidentiality 165 and a judge of the england and wales court of appeal, has highlighted, in the context of the uk’s approach, a limitation inherent in the incremental development of the common law. He identifies an important limitation on the use of breach of confidence to address privacy issues. A consequence of the development of privacy within the action for breach of confidentiality is that it is presently confined to cases involving the use of information of a private nature, whether in word or pictorial form. So however strong and understandable may be the feeling of harassment of a person who is hounded by photographers when carrying out activities of a private nature, and however unacceptable the behaviour of the pack, there will be no cause of action until an intrusive photograph is published. From the viewpoint of the mischief against which article 8 of the human rights act 1998 is aimed, this is illogical. 166 74.115 to put these comments in an australian context, if the uk’s approach applied, the plaintiff in doe v abc would and did on the findings of the trial judge have a recognised cause of action for breach of confidence, but the claimant in grosse v purvis would be without a remedy.

74.116 such constraints can be overcome if a statutory cause of action for serious invasion of privacy is enacted. This avoids the problems inherent in attempting to fit all the circumstances that may give rise to an invasion of privacy into a pre existing cause of action such as breach of confidence or formulating a previously unrecognised cause of action such as the tort of invasion of privacy. Enacting a statutory cause of action also allows for a more flexible approach to defences and remedies.

167 74.117 individuals should be protected from unwanted intrusions into their private lives or affairs in a broad range of contexts, and it is the alrc’s view that a statutory cause of action is the best way to ensure such protection. It forecloses the possibility of australian courts adopting an action in breach of confidence as the primary vehicle to protect an individual’s private life from invasion, and alleviates the necessity of judges taking the ‘bold step’ 168 of formulating a new tort and a lengthy period of uncertainty and inconsistency as the courts refine the law in this area. Further, it does away with the distinction between equitable and tortious causes of action, and between the defences and remedies available under each.

74.118 the alrc supports the view expressed in nswlrc cp1 that the ‘statutory cause of action for invasion of privacy should not be constrained at the outset by an assumption that rules otherwise applicable to torts generally should necessarily apply to the statutory cause of action for invasion of privacy’. 169 in addition, as the nswlrc notes, this approach allows for the consideration of competing interests, including the public interest, ‘that have not traditionally been relevant in the development of tortious causes of action’. 170 74.119 in the alrc’s view, it is also appropriate to set out a non exhaustive list of the types of acts or conduct that could constitute an invasion of privacy. Examples where an invasion of privacy may occur should include where: there has been a serious interference with an individual’s home or family life an individual has been subjected to unauthorised surveillance an individual’s correspondence or private written, oral or electronic communication has been interfered with, misused or disclosed and sensitive facts relating to an individual’s private life have been disclosed. 74.120 in the alrc’s view, the cause of action should not include use of a person’s identity or likeness without consent. It is questionable whether an unlawful attack on a person’s honour and reputation, placing a person in a false light and using a person’s name, identity, likeness or voice without authority or consent are properly characterised as invasions of privacy. It has been argued, at least in relation to false light and appropriation, that such conduct is better left to the law of defamation.

171 the same argument applies to an unlawful attack on a person’s honour and reputation, which clearly falls within the parameters of defamation law. 172 74.121 in lenah game meats, gummow and hayne jj commented on the tenuous nexus between privacy and the appropriation and false light torts. Whilst objection possibly may be taken on non commercial grounds to the appropriation of the plaintiff’s name or likeness, the plaintiff’s complaint is likely to be that the defendant has taken the steps complained of for a commercial gain, thereby depriving the plaintiff of the opportunity of commercial exploitation of that name or likeness for the benefit of the plaintiff. To place the plaintiff in a false light may be objectionable because it lowers the reputation of the plaintiff or causes financial loss or both. The remaining categories of the restatement of the law, 2nd, torts, 1977 us , the disclosure of private facts and unreasonable intrusion upon seclusion, perhaps come closest to reflecting a concern for privacy ‘as a legal principle drawn from the fundamental value of personal autonomy’, the words of sedley lj in douglas v hello! ltd. 173 74.122 it has also been suggested that the appropriation tort is a form of intellectual property, in that it protects a property right as distinct from the privacy of a person.

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Alternatively, an extension of the tort of ‘passing off’, or the development of a ‘right of publicity’, may be a better way to deal with the perceived problem. 174 74.123 it is undesirable for the cause of action to be used as an intellectual property style personality right to protect commercial value. This type of scenario may be illustrated by reference to douglas v hello! 175 where the plaintiffs claimed the privacy of their wedding photographs in order to protect the commercial value of the photographs that they had sold to a rival magazine. Consequently, it is undesirable expressly to include ‘use of another’s name, identity, likeness or voice’ in the list of types of intrusion that will ground the cause of action for serious invasion of privacy. 74.124 circumstances giving rise to the cause of action should not be limited to activities taking place in the home or in private places. Clear lines demarcating areas in which privacy can be enjoyed should not be drawn in advance, since each claim will have to be judged in its particular context. The appropriate test is whether the circumstances give rise to a reasonable expectation of privacy, regardless of whether the activity is in public or private.

Gleeson cj noted that ‘an activity is not private just because it is not done in public’. 176 in the alternative, the fact that an activity takes place in public does not mean that an expectation of privacy cannot arise. A reasonable expectation of privacy did not arise because the photographs were taken in public and disclosed ‘nothing more than could have been observed by an member of the public in newmarket on that particular day’. 178 the activity photographed was in public, but it revealed information about campbell’s health, a category of information that has long been considered sensitive and private. 74.126 one commentator has suggested that a reasonable expectation of privacy may arise in public where a person is involuntarily experiencing an intimate or traumatic experience in public, they are in a place where they reasonably perceive themselves to be reasonably imperceptible, or the defendant has used technological devices to penetrate his or her clothes or other self protection barriers. 179 74.127 while leaving it open to the courts to determine when a reasonable expectation of privacy exists, the alrc supports the narrower view of when a public act can be private, as expressed in campbell rather than the more expansive view of the european courts in cases like von hannover. 180 74.128 the alrc notes the concerns raised by youthlaw, and considers a number of issues related to capacity, young people and privacy in chapters 68 and 69.