By: Richard Leder, Georgie Austin, Zoë Burchill and Isabelle Ferrali

Kurraba Group Pty Ltd & Anor v Williams [2025] NSWDC 396

In Kurraba Group Pty Ltd & Anor v Williams [2025] NSWDC 396, the plaintiffs, an Australian company and its Chief Executive Officer, succeeded in obtaining a suite of interlocutory orders designed to bring what they called a ‘campaign of extortion’ by the defendant to an end. Significantly, this is the first time that an application for relief under the recently enacted provisions in the Privacy Act 1998 (Cth), concerning serious invasions of privacy, has been brought.

Background and Key Facts

The first plaintiff, Kurraba Group Pty Ltd (Kurraba), lodged a development application with the City of Sydney to develop and establish the site at 100 Botany Road, Alexandria. Botany Road Development Pty Ltd (BRD) is the owner of the property and is also the company responsible for the development. Nicholas Smith, the second plaintiff, is the sole director and shareholder of BRD.

Part of the property includes premises at 98-100 Wyndham Street, Alexandria, owned by C & A Berk Holding No 2 Pty Ltd (Berk). Significantly, it was advertised for short-term rental at the same time the announcement about Kurraba’s development was made. The defendant, Michael Wiliams, phoned the real estate agent and was informed that the property was to be sold and knocked down for development – hence the short-term rental. With that backdrop, Glexia Pty Ltd, the company of which the defendant was the sole director and secretary, entered into a commercial lease for a period of six months commencing on 1 July 2024.

The first interaction between the parties occurred when Mr Williams sent a text message to Mr Smith which stated:

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.

It should be noted that Mr Williams entered into a short-term lease expiring on 1 January 2025 with no option to renew.

On 11 November 2024, Mr Williams and Mr Smith had a meeting at a restaurant wherein Mr Williams claimed he would be lodging objections to the development, unless Mr Smith paid him $50,000. Mr Williams also claimed to have had success in similar disputes with other corporations including John Holland, Australian Post and Google. During the meeting, Mr Smith encouraged Mr Williams to speak to the current landowners of the premises. Later that day, Mr Williams sent a text message to Mr Smith again asking for $50,000 in compensation. Mr Smith declined the offer.

After Mr William’s demands were refused, he began a campaign against both Mr Smith and the development including, a 64 page written submission opposing the development and a one-star Google review for Kurraba. Additionally, Mr Williams made oral submissions to the Central Sydney Planning Committee of the City of Sydney which was considering the development application and made a website, the Kurraba Group Exposed, where he made serious allegations about the plaintiffs.

Claims and Court Findings

Mr Smith, the second plaintiff, subsequently commenced proceedings alleging serious invasions of privacy, under Part 2 of Schedule 2 of the Privacy Act 1998 (Cth), along with a defamation claim regarding 15 publications. Both plaintiffs, Kurraba and Mr Smith, also brought claims for the tort of intimidation and jointly sought urgent interlocutory orders pending the hearing of their claims.

Significantly, at [25] of Justice Gibson’s decision, her Honour observed there was a serious question to be tried in relation to the tort of privacy for Mr Smith.

By way of context, an individual has a cause of action if another person intrudes upon their seclusion or misuses information relating to them (Privacy Act 1998 (Cth) Part 2 Schedule 2). At [26], Justice Gibson made it clear that the distribution of Mr Smith’s wedding photos by Mr Williams enlivens the tort’s cause of action for the following reasons:

• First, photos of this kind are intended to be ‘as private as possible’ (Justice Gibson at [26] in Kurraba Group Pty Ltd & Anor v Williams [2025] NSWDC 396 citing Justice Lindsay at [66] of Douglas v Hello! Ltd [2005] EWHC 786).

• Second, Mr Smith and his wife were not public figures and had no intention of publishing their wedding photos on mass or to any media organisation. Although not enunciated in the decision in the following words, this point speaks to an important element of the new tort – did the plaintiffs have a reasonable expectation of privacy in the circumstances? It can be inferred from Justice Gibson’s decision that they did.

• Third, the photographs in question, established earlier as being private, were misused by Mr Williams. In the words of Justice Gibson at [26], the defendant ‘sought to portray what they depicted as indicating moral delinquency and drunkenness as opposed to the sanctity of marriage and the ceremonial proceedings attendant thereupon’. This is an important point for practitioners to note as the new tort also requires the invasion of privacy to be both intentional or reckless, and serious.

• Fourth, at [28], Justice Gibson found that the defendant’s conduct is not that of a journalistic-style investigation, but rather, extortion. This finding by her Honour, as succinct as it is, touches on two key parts of the tort, one is an element, and the other is an exemption. Firstly, a key element of the tort is that the public interest in the plaintiff’s privacy outweighs any countervailing public interest. Freedom of the media, as distinct from extortion, is one example of a countervailing public interest. Secondly, and perhaps more significantly given the controversy surrounding its inclusion in the legislation, is Mr Williams’ failure to satisfy the journalism exemption. For this exemption to apply, the defendant must be a journalist (or work for one) and the publication must be considered journalistic material. Mr Williams clearly did not satisfy either of those requirements. Justice Gibson’s analysis provides an important starting point for the application of the journalism exemption and likewise, the application of the public interest test.

Regarding any defences or other exemptions available to the defendant, it was held at [28] of the decision that there was no evidence of any other legitimate reason for the defendant’s conduct in this case.

Orders and Outcomes

Justice Gibson made a number of orders in response to the evidence presented by the parties, including:

• an injunction restraining Mr Williams from publishing any documents (including, without limitation, by way of posting articles on the Internet, posting videos on the Internet, sending a text message, or sending an email) referring to Mr Smith and Kurraba;

• an injunction requiring Mr Williams, within two days of the order, to take all steps to remove from the Internet and/or any social media platform any website, article, advertisement or document referring to or identifying Mr Smith and Kurraba;

• an injunction restraining Mr Williams from repeating or continuing to publish a website, article, advertisement or document referring to or identifying Mr Smith and Kurraba;

• an injunction restraining Mr Williams from inciting, encouraging or otherwise suggesting to any person that such person engage in conduct from which the defendant is, by these orders, restrained; and

• the order to last until the final determination of the proceedings.

Looking Ahead

This is the first time an application for relief under the recently enacted provisions in the Privacy Act 1988 (Cth), namely Part 2 of Schedule 2 of that Act, has been brought. As such, it provides an important starting point for future litigation and judicial consideration. Admittedly, not all claims will resemble that of Mr Smith’s in Kurraba Group Pty Ltd & Anor v Williams, but as noted by Justice Gibson in this decision, the legislation was intended to provide a flexible framework to address current and emerging privacy complaints.

It should be noted that decisions concerning serious invasions of privacy may lack the detail and depth of analysis typically seen in other areas of law. One of the difficulties the Courts may face when describing conduct of this nature is that repeating the information in a judgment may increase the damage caused to a plaintiff. This was the case in this decision with Justice Gibson noting the potential impact of the ‘Streisand effect’, leading her Honour to say as little as possible about the subject matter.

The key takeaways from this decision with respect to serious invasions of privacy can be found in Justice Gibson’s reasoning at [23]-[29]. Practitioners should make note of:

• the type of photograph that was considered private – in this case, wedding photographs of the second plaintiff;

• the fact the second plaintiff and his wife were not public figures;

• the untoward intention of the defendant in publishing the material; and

• the public interest considerations made by Justice Gibson and relatedly, the defendant’s failure to satisfy the journalism exemption.

The decision in Kurraba Group Pty Ltd & Anor v Williams paves the way for future case law in this space. It is without doubt that forthcoming decisions will shed further light on the meaning of the new legislation, in particular, the bounds of the journalism exemption and the public interest element, as Courts will have to balance freedom of expression with an individual’s right to privacy.

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