Peter A Clarke

The case of Kate Aston being videoed walking out of a bathroom and Nathalie Matthews being concerned about intimate videos she filmed would be made public raises issues of privacy protections in each case and what each could do to protect their privacy. Particularly with the statutory tort of serious invasion of privacy coming into operation on 10 June 2025.

While both factual situations are unique they are not, in broad strokes, all that unusual in privacy law.  The use of videos and cameras used in a setting which should be private and which clearly cause serious distress is not unknown. Many cases, almost invariably resulting in a prosecution, involve the use of a camera/video in a toilet. But there is no hard dividing line taking photos or videos of someone in a toilet and photographing or videoing someone with that same equipment who are leaving a toilet.  The question is whether there is a reasonable expectation of privacy.  In case of someone using the toiletry facilities the answer is clearly yes.  In terms of someone leaving a toilet it is most likely yes.  The distinction is slight.  One can have a reasonable expectation of privacy in a semi public or even public space. In 2008 the UK Court of Appeal in Murray v Big Pictures (UK) Ltd [2008] EWCA Civ 446 found that a child had a right to privacy in a public space. The Mrs Murray in that case writes under the nome de plume of JK Rowling. While the claim was brought on behalf of the Murray’s child the defendant’s interest was more about capturing an image of Mrs Murray with her family, child especially.  While that case focused on the rights of the child the subsequently developed principles apply to adults. It depends on the circumstances.  And those circumstances do not assist someone who intentionally waits outside a toilet and uses the video to catch another on film leaving the toilet.  And then posts that footage on line.  

According to 7 News Ms Aston has commenced legal action. Whether that is a claim in privacy, equity, defamation or any other cause of action is unknown.  

According to the Australian report of the Matthews case the concern is there are intimate videos would be made public and that motivated her to apply for a domestic violence order.  The abuse of intimate videos, previously made consensualy, have been the subject of two superior court decisions in Australia; the Victorian Court of Appeal decision in  Giller v Procopets [2008] 24 VR 1 and the Western Australian decision of Wilson v Ferguson [2015] WASC 15 which I posted on in 2015.  

Either of these cases could be run without the statutory tort of serious invasion of privacy.  With that tort extant and these fact situations commencing after 10 June 2025 the tort is available to either.  The strength of the case depends on all of the facts, not just the media coverage. 

It is interesting to read the heading of a Herald Sun article that legal action on alleged toilet tryst video would expose Carey’s past.  That betrays a lot of misunderstanding of what a privacy action involves as opposed to a claim in defamation.  In defamation damage to reputation is the gist of the action.  In that context matters of Carey’s past may be germaine.  Almost certainly would be. In a privacy claim the issue is an invasion of privacy where there is a reasonable expectation of privacy.  The damages do not go to reputation per se.  They may go to distress and humiliation.  The argument that one’s past would vitiate a reasonable expectation of privacy is novel and probably wrong.  In any event Aston may be the litigant in a non defamation related proceeding and not Carey in which case how would Carey’s past be relevant?  There is a significant lack of understanding within the profession to privacy actions in Australia.  

The report of the Aston situation is covered by a Nine News report which provides:

The woman at the centre of the ‘toilet-gate’ video involving former AFL star Wayne Carey has detailed the immense toll the viral video has taken.

Marketing executive Kate Aston, 38, told the Herald Sun the scandal associated with the alleged toilet tryst has taken an immense toll on her personal and professional life.

“What has happened to me could happen to anyone, and no one should have to go through what I have been put through – the damage, the speculation, the impact on my livelihood, all from the malicious actions of a small few,” Ms Aston, who has denied anything happened in the toilets, said.

“Overnight, from footage of me simply exiting a toilet at a bar, I’ve had my life turned ­upside down.

“From a professional perspective, my ability has been put into question which has had immediate financial ­repercussions, one that is costing me every day with the effects likely to be long term and irreversible … while I appear strong, those closest to me know that my suffering over recent days has been colossal.”

Ms Aston said she will be pursuing legal action after she was filmed at Toorak Cellars in the Melbourne suburb of Armadale last Friday leaving a bathroom about 20 seconds before Carey, 54, walks out.

As the recording unfolds, one voice behind the camera can be heard saying “she looks embarrassed” before a second ponders “what’s he doing in there?”.

“I have been put in this situation simply because of the cyber-bullying actions of other people,” Ms Aston said.

“There needs to be some sort of accountability for their actions.

“The actions of these women have meant my name is now in the public realm, and I am now the subject of immense ridicule. It has already affected my ability to earn an income with other far-reaching negative consequences to come.”

Carey has also hit out at the footage, with the premiership winner demanding action and also labelling it cyber-bullying.

Earlier on Thursday, entertainment reporter Peter Ford questioned Carey’s decision to bring the incident further into the public consciousness when he spoke about it on Sam Newman’s podcast.

“This ‘toilet-gate’ scandal if you like, is it a scandal or is it completely blown up out of all proportion?” Ford asked in a chat with radio station 3AW Melbourne.

“Wayne Carey decided to out himself, which I thought was an interesting choice, he didn’t have to do that and the story probably would’ve been dead by now.

“If you can’t use names, the story kind of peters out. But in this case, Wayne did decide to do it and of course Wayne has got a track record of bad behaviour in the past.

“He’s on the defence now and come out fighting with this case.”

Ford went on to say most people would think “only two things” could be happening in the unisex bathroom and then joined Carey in slamming the action of the women that filmed the incident.

“Two women were there and for whatever reason, they must’ve been having a very dull night, decided they would film the two people,” he said.

“Wayne is demanding action, going to police, calling in lawyers, AFL Players’ Association, he really is fighting back on this one.

“If I was running Toorak Cellars, I certainly would be banning those two women.

“If they’re regular patrons I would be saying ‘please don’t come back’, because to me it crosses a line.

“We have no evidence that anything untoward was happening between those two people.”

Carey, a great of the North Melbourne footy club, has a track record of incidents away from the playing arena.

The most famous was his affair with former teammate Anthony Stevens’ then-wife Kelli, which led to Carey’s sacking from the Kangaroos.

He has also been hit with indecent assault, domestic violence and misdemeanour battery allegations, along with issues with drugs and alcohol, and has been sacked from a number of media roles.

Just last month Carey was filmed in an altercation with a man outside a Melbourne pub.

Ford conceded it was an unpopular opinion, but was opting to support Carey in this latest incident.

“Sometimes it’s not a popular stance to back Wayne Carey, but in this particular case, my gut feeling is he and the mystery woman are the innocent party,” he said.

“Unfortunately, it’s the curse of anyone in the public eye these days, everyone now is an amateur paparazzi and that’s fine, wanting to get selfies and all that.

“But the problem is people also love making moral judgments about famous people and what they’re doing wrong and might be up to behind closed doors and I think this is a classic case of that.”

Carey spoke about the footage with Newman, confirming he had been in contact with Victoria Police and the AFL Players’ Association.

“Annoyed is the wrong word, I’ve gone through 10 different emotions in the last three days,” he said on Newman’s podcast.

“One has been disbelief, that’s not an emotion, but I’ve gone through disbelief, sadness, I’ve gone through anger.

“I’ve had empathy, I’ve had all sorts of things go through this body and this mind.

“This woman has been thrown into this just because I could kick a footy. And you’ve got two vile, disturbing women who want to do this to another woman.

“That’s all they were doing, they were slut-shaming another woman,” he said.

“If two men had done that they would be raked over hot coals, it would be the biggest story going around if that had occurred.

“But because it’s two women doing it to another woman … you don’t know what’s going on, this other woman has had all sorts of stuff going in her life I’ve since found out.”

The former North Melbourne captain said he and his partner, Jessica Paulke, had been in contact with the woman in the video and they had all teamed up to hold those behind the footage accountable.

“I know who they are, the police know who they are, my lawyers know who they are. I have contacted these people just like the footballers have contacted these people because they’ve been abused online,” he said.

“You talk about vile and disgusting, what they have done and who they have affected by a few s**ts and giggles drinking their chardonnay sitting up there doing whatever.

“Once again I’m not going to name them because that would be as pathetic as what they are. I’ll let the law take care of it.”

The Australian article provides:

The ex-partner of former Labor leader Mark Latham says part of the reason she applied for a domestic violence order against him was for fear intimate videos she filmed would be made public, ­including one recorded in NSW Parliament House.

Nathalie Matthews, speaking exclusively to The Australian for the first time since ­accusing the NSW upper house member of domestic abuse, said she believed he issued a subpoena for her ­communications with Wise­Tech founder Richard White in an ­attempt to “intimidate” her into withdrawing the DVO application against him.

“He is trying to silence me and assassinate my character,” she said in the emotional ­interview on Friday.

The Australian this week ­revealed Ms Matthews, who owns an e-commerce global logistics firm, had lodged the DVO application accusing Mr Latham of domestic abuse, including ­defecating on her during sex and driving at her in a car.

Mr Latham has admitted to sending sexually explicit messages to Ms Matthews while on the floor of parliament, but emphatically denies allegations included in the DVO application, and claims they are “absolute rubbish”.

In the application, Ms Matthews included her concerns that Mr Latham would leak intimate videos her.

So when media reports this week revealed Ms Matthews had featured in a sexually explicit video filmed in Mr Latham’s office in NSW parliament, it was one of her worst fears come true.

“The fact that it emerged in the news that there were intimate ­videos in Parliament House of me proves my fears. I said in the DVO that I was scared of these videos coming out, and everyone knows about them,” she said.

“This is the exact reason I went to police for protection, that a private video like this would emerge. They failed to act to protect me.”

However, Ms Matthews said she didn’t want to be drawn “to the lows” that Mr Latham had ventured to this week, and refused to speak about sordid sex claims that had appeared in the media.

Ms Matthews says Mr Latham proposed to her at Sydney restaurant Otto in May last year after more than two years together. Mr Latham, however, has claimed the pair were in a “situationship”.

Asked when the relationship turned sour, Ms Matthews claimed: “His anger is cyclic.”

“There wasn’t a specific time where things went sour, he would get angry and then come back and be really sweet to me,” she alleged. “He’s a master manipulator.”

The Australian has seen a copy of a subpoena issued by Mr Latham’s lawyer, Zali Burrows, to Ms Matthews on Friday as part of Mr Latham’s defence against her DVO application.

Ms Matthews’ emails, texts and OnlyFans direct messages with Mr White – who she connected with on LinkedIn in 2023 after he offered her business ­advice – have been subpoenaed, as well as travel and hotel reservations, booking confirmations and boarding passes in relation to the software mogul after January 1 last year.

She has been subpoenaed for correspondence with Mr White – who was last year accused by ­multiple women of exchanging business advice for sex – in regards to trading shares and a copy of bank statements showing payments Ms Matthews received from him or his company.

Ms Matthews told The Australian she believed Mr Latham had used the subpoena as an opportunity to force her to drop the ­application. “He’s trying to intimidate me to withdraw the DVO,” Ms Matthews said.

The Australian on Friday revealed Mr Latham sent messages to Ms Matthews suggesting Mr White owed her “big money”.

The messages also showed the MP had suggested Mr White would want Ms Matthews to perform oral sex on him to “celebrate” after WiseTech board members quit, leaving him with greater control over the company.

The subpoena also orders Ms Matthews to produce documents relating to her candidate nomination for the Liberal Party in 2021, to produce a copy of her divorce certificate and communications relating to her ex-husband, Ross Matthews.

She is also required to produce correspondence concerning “free accommodation and arrangements for sex” with Bruno and Jean Francois – who, according to the subpoena, own and manage apartments in Phuket, Thailand – and other of her male friends.

Mr Latham on Friday told radio station 2SM he did not know about the DVO application until The Australian put questions to him this week. “The police didn’t proceed with her attempt to get a police AVO,” he said. “Some people say the police throw these things around like confetti. If you can’t get a police AVO then, in the judgment of the police, I’d suggest that there’s not much to it.”

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