The New South Wales District Court in Kurraba Group Pty Ltd & Anor v Williams [2025] NSWDC 396 considered issues regarding the statutory tort of serious invasion of privacy on 7 October 2025.

FACTS

The relevant parties are:

• the defendant, Williams, is the sole director and secretary of Glexia Pty Ltd, a company that briefly leased premises the subject of a development application brought by the first plaintiff, Kurraba [2].
• Kurraba lodged a development application with the City of Sydney to develop and establish a life science hub in the vicinity of 100 Botany Road Alexandria [10].
• Botany Road development Pty Ltd as trustee for the Botany Road development trust (“BRD”) is the owner of the real property to be developed and is also the company responsible for the development.
• the second plaintiff, Smith, is the sole director and shareholder of BRD [10].

Kurraba publicly announced its intention to lodge the development application in or about 19 and 20 June 2024 [11].  At about that time a property in Wyndham Street was advertised t for short-term rental. BRD exercised an option to purchase the Wyndham Street property. Williams called the real estate agent and said words to the effect that he was interested in leasing the property & was told it was to be sold and knocked down for development[12].

On 26 June 2024 Glexia Pty Ltd entered into a commercial lease for a period of six months commencing on 1 July 2024. Significantly, Williams did in fact vacate the premise on or around 1 January 2025 [12].

The first interaction between the plaintiffs and Williams occurred when Williams texted Smith stating [13]:

“Dear Kurraba Group,

Your development at 100 Botany Road (SD-63067458 /D/2024/937) intends to cause considerable disruption to my business and likely violates numerous laws, regulations, rules, and policy documents.

We intend to oppose the development first by submitting it to the State of New South Wales and the City of Sydney Local Government Area and, if still approved, the Land Environment Court and/or Supreme Court.

I write to establish communications before formal opposition proceedings and litigation to see if there might be a way to resolve these issues amicably, saving us both the immense cost and time of such proceedings.

We have begun retaining experts to develop a more comprehensive opposition package and to impact the various reports you have submitted as part of your package.

I have attached our preliminary submissions, which will be submitted to the State of New South Wales and the City of Sydney on 29 November 2024 unless we reach some agreement to mitigate the impacts on our business.

Regards,

Michael Williams”

On 11 November 2024,  Williams and  Smith had a meeting. Mr Smith states that during the conversation Williams said

“I will be lodging objections to your development. Unless you pay me $50,000, I will not remove any of these objections. If you pay, I will remove the objections. I have current disputes with John Holland, Australia Post and Google. I usually get about $15,000, but I cost them far more in legal fees and in John Holland’s case, it cost them about $700,000.”

Later that day Williams texted Smith:

“This offer is without prejudice, save as to costs. Thank you for meeting. We’ve just commenced litigation against the landlord to stay in the property (see attached). We believe $50,000 is a reasonable amount of compensation to cover our moving and first two months of rent in a new building given the demolition occurring. Should you agree, we will relocate 90 days from the date a deed is settled. I must receive notification by 15 November 2024. Your offer would go a long way in resolving this situation which has put us in a very difficult situation.”[15]

Smith refused this demand [15].

After William’s demand for $50,000 was refused, he began a campaign against both Smith and the development by:

• lodging a 64 page written submission opposing the development and calling on the council to terminate the development [16(a)]
• giving Kurraba a one star Google Review [16(b)]
• making oral submissions to the Central Sydney Planning Committee which was considering the development application where he made serious allegations [16(c)]
• On or after 1 March 2025, Williams created the Kurraba Group Exposed website where  he made a series of allegations “of the gravest kind” against both plaintiffs [16(d)]

The Plaintiffs allege Williams has brought a campaign of extortion for the purpose of obtaining financial benefit sought in exchange for ceasing to publish [2].

DECISION

The plaintiffs’ claims are:

• Smith, brings a claim for:
  • defamation for the publication in 15 publications and for such further publication as may continue to appear [17(a)].
  • tort for serious invasions of privacy, the elements for which are set out in cl 7, Part 2 of Schedule 2 of the Privacy Act 1988.[17(b)]
• both plaintiffs bring a claim for the tort of intimidation [17(c)].

The Court’s jurisdiction and power

Regarding the the court’s power to grant relief under the Privacy Act his Honour stated:

• Clause 23 of Part 2 of Schedule 2 of the Privacy Act includes a notation that “State courts and the Federal Court of Australia have jurisdiction in relation to matters arising under this Schedule (see subsection 39(2) and paragraph 39B(1A)(c) of the Judiciary Act 1903)” [20]
• Section 39(2) of the Judiciary Act 1903 (Cth) provides:

“[t]he several Courts of the States shall within the limits of their several jurisdictions, whether such limits are as to locality, subject-matter or otherwise, be invested with federal jurisdiction, in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it, except as provided in section 38, and subject to the following conditions and restrictions”.

The relevant conditions are that the Commonwealth Parliament could confer original jurisdiction on the High Court to grant relief under the Privacy Act, by reason of s 76(ii) of the Australian Constitution [21].

• the court accepted that the District Court of NSW has the necessary jurisdiction under the Privacy Act to grant relief in relation to the tort of serious invasion of privacy for interlocutory relief as well also apply to final relief, although the precise parameters of power “..will have to await determination for another day”. [22]

Serious question to be tried

The court cited Yap v Matic [2022] WASC 181, at [130], noted that the tort of intimidation has not been litigated extensively in Australia [23].

The elements of the tort are:

1. The defendant has made a demand, coupled with a threat, to either the plaintiff or a third party.
2. The threat is to commit an unlawful act.
3. The person threatened complied with the demand, thereby causing loss to the plaintiff or alternatively was in the position of having to consider doing so in the future. [23]

The court found that the evidence at this interlocutory stage justifying the need for interim relief was that Williams’ conduct was directed at extorting funds from Kurraba and Smith with:

• no legitimate reason for Smith for engaging in this conduct
• Williams boasting of having had success against other large corporations (John Holland, Australia Post and Google), where he engaged in similar conduct,
• his reprehensible attack on the wife of an employee of one of those companies, is the clearest of indications of a serious claim of , based on the tort of intimidation, for both plaintiffs [24].

The court also found there was a serious question to be tried in relation to Smith’s claim of the tort of privacy and referred to the misuse of private wedding photographs,  never intended to be made public, in Douglas v Hello! Ltd [2005] EWHC 786, with this case here, as the Williams and his wife were not public figures and the photographs in question were misused by Smith in that he sought to portray what they depicted as indicating moral delinquency and drunkenness [26].  The Court also noted that  the misuse of private photographs has long been recognised in Australia as being capable of amounting to defamation where they appear out of context (Geyer v Ghosn (No 2) [2020] NSWDC 782), as no question of consent can arise: Breunis v Penthouse Publications Ltd (NSWSC, 15619 of 1992, 20 August 1993, Levine J, unreported) [27].

Relying on  Dhanji J in Richards (a pseudonym) v Jones (a pseudonym), the balance of convenience clearly favoured the plaintiffs noting that Smith’s conduct is not that of journalistic-style investigation, but of extortion [28].

ISSUE

In the normal course courts are reluctant to grant injunctive relief to a plaintiff.  There are strong public policy reasons for that and in many cases it is clear that damages are an adequate remedy.  The facts in this case are extraordinary, particularly as the court regarded some of that behaviour as tantamount to extortion.  The case is interesting in that there is a mix of privacy and defamation claims.  That is not the norm in the UK given both torts are very distinctive.  In Australia the statutory tort makes reference to defamation defences so the distinction is more blurred.

The court’s analysis is very useful for any practitioner wishing to formulate submissions in a privacy proceeding.