Dale v Veda Advantage Information Services and Solutions Limited - [2009] FCA 305 - FCA 2009 case summary — Zoe

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Dale v Veda Advantage Information Services and Solutions Limited

[2009] FCA 305

Federal Court of Australia|2009-07-01

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Federal Court of Australia

Decision date

2009-07-01

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Judgment (68 paragraphs)

[1]

Introduction 1 These reasons for judgment relate to nine proceedings for damages for defamation and negligence that were heard together. 2 The first respondent, Veda Advantage Information Services and Solutions Limited (Veda), was at all material times a "credit reporting agency" and carried on a "credit reporting business" within the meaning of the Privacy Act 1988 (Cth) (Privacy Act). (Veda has had different names in the past, namely, Credit Reference Association of New South Wales Limited, then Credit Reference Association of Australia Limited, then Credit Reference Limited, then Credit Advantage Limited, then Baycorp Advantage Business Information Services Limited. However, I will refer to it as "Veda" regardless of the point in time in question.) Section 11A of the Privacy Act defines a "credit reporting agency" as a corporation that carries on a credit reporting business. Section 6 defines a "corporation" as, relevantly, a trading or financial corporation formed within the limits of Australia. The definition of "credit reporting business" appears at [18] below. 3 In its defence (see [114] below) Veda raised a constitutional issue, as a result of which notices under s 78B of the Judiciary Act 1903 (Cth) were given to the Attorneys-General of the Commonwealth and the States and Territories. Only the Attorney-General for New South Wales sought to intervene. On 13 June 2007 I ordered that he be added as second respondent. 4 Veda's business centred on its operation of a computerised database. That database recorded information concerning the creditworthiness of individuals. Veda's customers were credit providers. Credit providers have an obvious interest in obtaining information touching the creditworthiness of persons who seek credit from them. As subscribers to Veda's system, they: · electronically entered creditworthiness data concerning individuals to whom they had provided credit, directly into Veda's database for the benefit of other subscribers; and · extracted electronically directly from Veda's database for their own benefit creditworthiness data that had been entered into it by other subscribers concerning individuals to whom the latter had provided credit. I discuss the modus operandi of Veda's business in more detail below. 5 On the negligence claim, each applicant complains, in substance, that Veda supplied to one or more of its subscribers inaccurate information concerning the creditworthiness of that applicant, as a result of which he or she suffered loss or damage by being refused credit or losing the opportunity of obtaining credit on more favourable terms. On the defamation claim, the complaint is that Veda published to one or more of its subscribers material, whether accurate or inaccurate, that conveyed imputations defamatory of the applicant. 6 The nine proceedings involved some common issues, but the detailed facts were unique to each case. The hearing was limited to the issue of liability, and consequently so are these reasons. 7 The nine applicants and their respective proceedings are: Applicant Proceeding (1) Cindy Adams NSD 2006 of 2006 (2) Shane Dale NSD 1994 of 2006 (3) Eddie Fisher NSD 2003 of 2006 (4) Jye Marker NSD 1996 of 2006 (5) Tim McGary NSD 2007 of 2006 (6) Dianne Shields NSD 2001 of 2006 (7) Robert Strange NSD 2000 of 2006 (8) Trevor Taylor NSD 2002 of 2006 (9) Aaron Tyndall NSD 2004 of 2006

[3]

The Privacy Act 9 Veda's credit reporting business is heavily regulated by the Privacy Act. Both the applicants and Veda relied on provisions of that Act as relevant to the claims in defamation and negligence. However, the applicants did not sue Veda on a cause of action on the statute, that is to say, for breach of an actionable statutory duty said to be owed to them by Veda. The parties agreed that Reprint 6 of that Act (reprinted on 20 January 2005) was the applicable version. 10 The Privacy Amendment Act 1990 (No 116 1990), which commenced on 24 September 1991, inserted new ss 18A and 18B into Pt III, and a new Pt IIIA (ss 18C to 18V) headed "Credit Reporting". The Privacy Amendment (Private Sector) Act 2000 (No 155 of 2000) inserted the heading "Division 5 - Credit Information" before ss 18A and 18B. 11 Section 3 of the Privacy Actprovides: It is the intention of the Parliament that this Act is not to affect the operation of a law of a State or of a Territory that makes provision with respect to the collection, holding, use, correction, disclosure or transfer of personal information (including such a law relating to credit reporting or the use of information held in connection with credit reporting) and is capable of operating concurrently with this Act. The applicants rely on this provision as showing an intention that the Privacy Act was not to exclude the operation of the laws of the States and Territories under which the causes of action in defamation and negligence exist. 12 The expression "personal information" is defined in s 6 to mean: information or an opinion (including information or an opinion forming part of a database) whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion. 13 Section 18A(1) referred to above provides: The Commissioner must, by notice published in the Gazette, issue a Code of Conduct concerning: (a) the collection of personal information for inclusion in individuals' credit information files; and (b) the storage of, security of, access to, correction of, use of and disclosure of personal information included in individuals' credit information files or in credit reports; and (c) the manner in which credit reporting agencies and credit providers are to handle disputes relating to credit reporting; and (d) any other activities, engaged in by credit reporting agencies or credit providers, that are connected with credit reporting. Section 6 states that the Commissioner is the Privacy Commissioner. The office of Privacy Commissioner is established by Pt IV of the Privacy Act. 14 Subsection (3) of s 18A requires the Commissioner, in preparing the code of conduct, to have regard to: · the "Information Privacy Principles" and the provisions of Part IIIA; · the "National Privacy Principles" and the provisions of Part IIIAA; and · "the likely costs" to credit reporting agencies and credit providers of complying with the Code of Conduct. The Information Privacy Principles are discussed at [61] below and the National Privacy Principles at [62] below. 15 Pursuant to s 18A, the Commissioner issued a Credit Reporting Code of Conduct in 1991 (Code). It became fully operational in February 1992. The Code supplements the provisions of Pt IIIA. Part 1 of the Code deals with "Credit reporting agencies" and Pt 2 with "Credit providers". 16 Section 18B provides that a credit reporting agency or credit provider must not do an act, or engage in a practice, that breaches the Code. Accordingly, a breach of the Code is a contravention of s 18B. 17 It is convenient now to address the definitions of some of the expressions used in ss 18A and 18B. They are also used throughout Pt IIIA discussed below. 18 Sections 6(1) and 11A of the Privacy Act define "credit reporting agency" for the purposes of that Act as a "corporation that carries on a credit reporting business". Section 6(1) defines "credit reporting business" to mean, relevantly: a business or undertaking … that involves the preparation or maintenance of records containing personal information relating to individuals (other than records in which the only personal information relating to individuals is publicly available information), for the purpose of, or for purposes that include as the dominant purpose the purpose of, providing to other persons (whether for profit or reward or otherwise) information on an individual's: (a) eligibility to be provided with credit; or (b) history in relation to credit; or (c) capacity to repay credit; whether or not the information is provided or intended to be provided for the purposes of assessing applications for credit. 19 The word "record" is defined in s 6(1) to mean, inter alia, "a database (however kept)". The term therefore encompasses a computerised database of the kind that is maintained by Veda. 20 It is not in dispute that at all material times Veda was a corporation that carried on a credit reporting business and was therefore a credit reporting agency. It will be noted that the definition of "credit reporting business" is not limited by reference to the form in which the credit information is to be provided to other persons. It therefore embraces the provision of that information by the granting of access to a database containing the information. The granting by Veda of access to its database to credit providers who subscribe to its system forms the basis of the claims made in these proceedings. 21 The expression "credit", which occurs four times in the definition of "credit reporting business" set out at [18] above, is defined in s 6(1) to mean: a loan sought or obtained by an individual from a credit provider in the course of the credit provider carrying on a business or undertaking as a credit provider, being a loan that is intended to be used wholly or primarily for domestic, family or household purposes. Accordingly, the word "credit" may be conceived of as limited to consumer credit. 22 Similarly, s 6 (5A) of the Privacy Act provides: For the purposes of the definition of credit reporting business in subsection (1), information concerning commercial transactions engaged in by or on behalf of an individual is not to be taken to be information relating to an individual's: (a) eligibility to be provided with credit; or (b) history in relation to credit; or (c) capacity to repay credit. 23 Section 6(1) defines "commercial credit" to mean a loan other than a loan of a kind referred to in the definition of "credit". The Privacy Act therefore distinguishes between "credit" and "commercial credit", the former being a loan for consumer purposes and the latter being a loan of any other kind. It therefore seems appropriate to refer to an individual to whom "credit" has been provided as a "consumer", although the Privacy Act does not use that term. 24 It follows from the definition of "credit" that credit does not mean a loan sought or obtained by a corporation, or a loan sought or obtained by an individual from an entity other than a credit provider, or a loan sought or obtained by an individual (a natural person) from a credit provider but for commercial purposes. Although the Privacy Act is concerned with consumer credit, this does not mean that the provision of commercial credit is irrelevant to these proceedings. In particular, some of the defaults that were entered in Veda's database in respect of some of the applicants were defaults under commercial credit arrangements (see [70] ff below). 25 The expression "loan" is defined in s 6(1) to mean a contract, arrangement or understanding under which a person is permitted to defer payment of a debt, or to incur a debt and defer its payment. The definition also identifies particular forms of transaction that are included within the term "loan". 26 Sections 6(1) and 11B define "credit provider". Relevantly, a "credit provider" includes (s 11B): (a) a bank; or (b) a corporation (other than an agency): (iii) a substantial part of whose business or undertaking is the provision of loans (including the provision of loans by issuing credit cards); or (iv) that carries on a retail business in the course of which it issues credit cards to members of the public in connection with the sale of goods, or the supply of services, by the corporation; or (v) that: (A) carries on a business or undertaking involving the provision of loans (including the provision of loans by issuing credit cards); and (B) is included in a class of corporations determined by the Commissioner to be credit providers for the purposes of this Act; ... 27 I turn now to Part IIIA (ss 18C-18V) "Credit reporting" 28 Section 18E(1) provides that a credit reporting agency must not include personal information in an individual's credit information file unless at least one of the conditions set out in the various paragraphs of that subsection is satisfied. Those conditions that are of immediate relevance are the following: (b) the information is a record of: (i) both (A) a credit provider having sought a credit report in relation to an individual in connection with an application for credit or commercial credit made by the individual to the credit provider; and (B) the amount of credit or commercial credit sought in the application; or … (vi) credit provided by a credit provider to an individual, being credit in respect of which: (A) the individual is at least 60 days overdue in making a payment, including a payment that is wholly or partly a payment of interest; and (B) the credit provider has taken steps to recover the whole or any part of the amount of credit (including any amounts of interest) outstanding; or (vii) a cheque, for an amount not less than $100, that: (A) has been drawn by the individual; and (B) has twice been presented and dishonoured; or (viii) court judgments made against the individual; or (ix) bankruptcy orders made against the individual; or (x) the opinion of a credit provider that the individual has, in the circumstances specified, committed a serious credit infringement; or (ba) the information is a record of an overdue payment by the individual as guarantor under a guarantee given against default by a person (the borrower) in repaying all or any [sic - any part] of an amount of credit obtained by the borrower from a credit provider, and the following subparagraphs apply: (i) the credit provider is not prevented under any law of the Commonwealth, a State or a Territory from bringing proceedings against the individual to recover the amount of the overdue payment; (ii) the credit provider has given the individual notice of the borrower's default that gave rise to the individual's obligation to make the payment; (iii) 60 days have elapsed since the day on which the notice was given; (iv) the credit provider has, separately from and in addition to the giving of the notice referred to in subparagraph (ii), taken steps to recover the amount of the overdue payment from the individual. Of the nine applicants, Mr McGary and Ms Shields were guarantors, and therefore persons to whom para (ba) was relevant. Paragraph (b) was relevant to the remaining seven applicants. 29 The Code elaborates on subpara (b)(i) of s 18E(1) by stating that a credit reporting agency recording an enquiry made by a credit provider in connection with an application for credit may include, within the record of the enquiry, a general indication of the nature of the credit being sought. Veda's database recorded enquiries made by credit providers in connection with applications to them for consumer credit or commercial credit by the applicants. 30 The expression "credit information file" is defined in s 6(1) to mean: In relation to an individual, … any record that contains information relating to the individual and is kept by a credit reporting agency in the course of carrying on a credit reporting business (whether or not the record is a copy of the whole or part of, or was prepared using, a record kept by another credit reporting agency or any other person). I referred to the definitions of "record" at [19] above and "credit reporting agency" at [18] above. 31 The expression "serious credit infringement" is defined in s 6(1) to mean: "… an act done by a person: (a) that involves fraudulently obtaining credit, or attempting fraudulently to obtain credit; or (b) that involves fraudulently evading the person's obligations in relation to credit, or attempting fraudulently to evade those obligations; or (c) that a reasonable person would consider indicates an intention, on the part of the first‑mentioned person, no longer to comply with the first‑mentioned person's obligations in relation to credit." Paragraph (c) assumed importance because Veda, and therefore its subscribing credit providers, characterised the act of any individual who had left his or her last known address and could not, after reasonable efforts, be located by the credit provider, as falling within that paragraph. 32 Section 18E(2) provides that a credit reporting agency must not include in an individual's credit information file personal information relating to, relevantly at para (f), the individual's lifestyle, character or reputation. 33 Section 18E(8) provides: A credit provider must not give to a credit reporting agency personal information relating to an individual if: (a) a credit reporting agency is prohibited, under subsection (1), from including the information in the individual's credit information file; or (b) the credit provider does not have reasonable grounds for believing that the information is correct; or (c) the credit provider did not, at the time of, or before, acquiring the information, inform the individual that the information might be disclosed to a credit reporting agency. 34 Certain aspects of the effect of the provisions of s 18E in the circumstances of the present cases are noteworthy. First, the obligation that s 18E(1) imposes on the credit reporting agency is absolute, even though the credit reporting agency will not ordinarily know the facts of the dealings between the credit provider and the consumer (hence, the "primary" obligation imposed on the credit provider by s 18E(8)). 35 Second, under s 18E(1) the relevant time is the time when the credit provider enters the personal information in Veda's database. Under subpara (b)(vi), for example, at that time the personal information must be information that is a record of (consumer) credit that was provided by the credit provider to the individual in respect of which, as at that time, the individual is at least sixty days overdue in making a payment and the credit provider has taken "steps" to recover the whole or any part of the amount of the credit. In the ordinary course, the credit reporting agency will have no way of knowing whether these conditions are satisfied. 36 Third, under subpara (b)(x), at the time of listing, the information must be a record of an opinion then held by the credit provider who entered the information in Veda's database that the individual has, in the circumstances specified in the information entered, committed a "serious credit infringement" as defined in s 6(1) (see the definition of "serious credit infringement" set out at [31] above). In the ordinary course, the credit reporting agency will have no way of knowing whether the credit provider did hold the opinion described in s 18E(1)(b)(x). 37 Fourth, under para (ba), at the time of listing, the personal information must be a record of an overdue payment by the individual as guarantor under a guarantee given against a default by a borrower in repaying all or any part of an amount of consumer credit obtained by the borrower from a credit provider, and all four of the circumstances identified in subparas (i)-(iv) of para (ba) must be satisfied. These include the lapse of sixty days since the day on which the credit provider gave the guarantor notice of the consumer's default and the taking by the credit provider of other steps to recover the amount of the overdue payment from the guarantor. Again, in the ordinary course the credit reporting agency will have no way of knowing if these conditions are satisfied. 38 It is important to recall s 6(1)'s definition of "personal information" (see [12] above). It refers to information whether true or not. The reference to the "information" in the opening words of paras (b) and (ba) of s 18E(1) is a reference back to the "personal information" mentioned in the chapeau to that subsection. The word "record" in paras (b) and (ba) does not, therefore, imply correctness. Accordingly, what paras (b) and (ba) except from the general prohibition in s 18E(1) is information, true or false, that satisfies a description in those paragraphs. That is to say, paras (b) and (ba) are directed to kinds, classes or categories of information, whether the actual information is true or false. 39 Section 18E(1) prohibited Veda from including in its database kinds of information falling outside the kinds described in, relevantly, subpara (b)(vi) and (b)(x) and para (ba) of that subsection. If information, even information that proved to be false, was of those kinds, s 18E(1) did not prohibit Veda from including it in its database. 40 This construction of s 18E(1) is consistent with Veda's lack of means of knowledge of the true facts and with the more extensive obligation imposed on credit providers by s 18E(8) referred to above. It is also consistent with the nature of the obligations respectively imposed on credit reporting agencies and credit providers by ss 18F, 18G and 18J referred to below. 41 The Code provides in cl 1.3 as follows: To ensure that only permitted information is included in a credit information file, a credit reporting agency must take the following steps: (a) Where a credit reporting agency receives information from a credit provider for creation of, or inclusion in, a credit information file, and it appears to the credit reporting agency that the information being supplied by the credit provider may not be permitted to be included in a credit information file, the credit reporting agency must: (i) refuse to accept the information; and (ii) notify the credit provider, in writing, that the inclusion of the information may be in breach of the Act. (b) Where a credit reporting agency becomes aware that information supplied by a credit provider and included in a credit information file appears to be of a type not permitted to be included in the file, the credit reporting agency must: (i) remove the information from the credit information file; (ii) notify the credit provider in writing that the information may not be permitted to be included in the file; and (iii) make a written record of its actions in relation to (i) and (ii) above. Clause 1.3(a) would be enlivened if, for example, it appeared to a credit reporting agency that the information supplied to it by the credit provider may not be of a permitted kind (cf s 18E(1) set out at [28] above). It is an interesting question whether cl 1.3(a) would also be enlivened if it appeared to a credit reporting agency that the credit provider may be prohibited from giving it the information by s 18E(8)(b) or (c). 42 Clause 1.3(b) is concerned with information already included in a credit information file that appears to the credit reporting agency not to be of a kind permitted to be included, and is therefore referable to the obligation imposed directly on the credit reporting agency by s 18E(1) (see [28]-[40] above). 43 Clause 1.4 (discussed at [58] below) expressly addresses the inaccuracy of information in the special circumstances described in that clause. 44 Section 18F(1) provides that a credit reporting agency must delete from an individual's credit information file maintained by the agency any personal information of a kind referred to in, relevantly, s 18E(1)(b), within one month after the end of the maximum permissible period for the keeping of personal information of that kind. Subsection (2) of s 18F defines the "maximum permissible period". For s 18E(1)(b)(vi) information, the period is five years, for s 18E(1)(b)(x) information it is seven years, and for s 18E(1)(ba) information it is five years. The commencement date varies according to the category. 45 Subsection (3) of s 18F obliges a credit provider who has given information to a credit reporting agency that an individual is overdue in making a payment in respect of credit provided by the credit provider, "as soon as practicable" to inform the agency once the individual has ceased to be overdue in making the payment or contends that he or she is not overdue in making it. On being so informed, the credit reporting agency must include in the individual's credit information file a note to that effect: subs (4). 46 Subsection (5) of s 18F provides that where a credit provider ceases to be a current credit provider in relation to an individual, the credit provider must, as soon as practicable, give notice of that cessation to any credit reporting agency that was previously informed that the credit provider was a current credit provider in relation to the individual. 47 Section 18G provides: A credit reporting agency in possession or control of a credit information file, or a credit provider or credit reporting agency in possession or control of a credit report, must: (a) take reasonable steps to ensure that personal information contained in the file or report is accurate, up-to-date, complete and not misleading; and (b) ensure that the file or report is protected, by such security safeguards as are reasonable in the circumstances, against loss, against unauthorised access, use, modification or disclosure, and against other misuse; and (c) if it is necessary for the file or report to be given to a person in connection with the provision of a service to the credit reporting agency or credit provider, ensure that everything reasonably within the power of the credit reporting agency or credit provider is done to prevent unauthorised use or disclosure of personal information contained in the file or report. Clearly, what are "reasonable steps" of the kind referred to in para (a) will depend on all the circumstances, including the respective roles played by credit provider and credit reporting agency. 48 The expression "credit report" is defined in s 6(1) of the Privacy Act to mean: any record or information, whether in a written, oral or other form, that: (a) is being or has been prepared by a credit reporting agency; and (b) has any bearing on an individual's: (i) eligibility to be provided with credit; or (ii) history in relation to credit; or (iii) capacity to repay credit; and (c) is used, has been used or has the capacity to be used for the purpose of serving as a factor in establishing an individual's eligibility for credit. It is not necessary that Veda send a record or information to its subscribing credit providers before it can be said to have supplied them with a credit report. By reference to the definition of "record" as being, inter alia, a database, if Veda "prepares" its database or information and grants access to it to its subscribers, it is in control or possession of a "credit report". Veda does "prepare" the record (database) or information in question. The record or information that an accessing credit provider obtains is not simply that which another credit provider fed into the database. It is a body of data supplied by credit providers (virtually always in the plural) which Veda's computer system has combined and arranged in a composite report. The data will have been entered by subscribers, but Veda, through its computer system, will have composed the data into a new form. 49 Section 18H is directed to ensuring that an individual can obtain access to a credit information file or a credit report concerning him or her. A credit reporting agency in possession or control of such a file must take reasonable steps to ensure that the individual can obtain access to it (s 18H(1)). Similarly, s 18H(2) requires a credit provider or a credit reporting agency that is in possession or control of such a credit report containing personal information concerning an individual to take all reasonable steps to ensure that the individual can obtain access to the report. 50 Finally, subs (3) provides that an individual's rights of access under subs (1) and subs (2) may also be exercised by a person (other than a credit provider, mortgage insurer or trade insurer) authorised in writing by the individual to exercise those rights on his or her behalf in connection with: (a) an application, or a proposed application, by the individual for a loan; or (b) the individual having sought advice in relation to a loan. A company named DR Capital Pty Ltd (DR Capital), which carried on a business of representing persons in their dealings with credit reporting agencies and credit providers, was so authorised by the nine applicants. Richard George Symes, a director of DR Capital, gave evidence in support of the applicants' claims. 51 Section 18J is directed to ensuring that credit information files and credit reports are amended to reflect the true position as known. Subsection (1) of s 18J provides: A credit reporting agency in possession or control of a credit information file, or a credit provider or credit reporting agency in possession or control of a credit report, must take reasonable steps, by way of making appropriate corrections, deletions and additions, to ensure that the personal information contained in the file or report is accurate, up-to-date, complete and not misleading. Subsection (2) of s 18J provides that where an individual requests a credit reporting agency or credit provider to make a correction, deletion or addition to personal information contained in a credit information file or credit report but the credit reporting agency or credit provider does not do so, and the individual requests the credit reporting agency or credit provider to include in the file or report a statement provided by the individual of a correction, deletion or addition sought by him or her, the credit reporting agency or credit provider must take reasonable steps to include the statement that has been provided by the individual in the file or report within 30 days after being requested to do so. 52 Section 18K imposes limits on disclosure of personal information by credit reporting agencies. Relevantly, s 18K(1) provides that a credit reporting agency that is in possession or control of an individual's credit information file must not disclose personal information contained in the file (disclosure to the individual is excepted) unless: (a) the information is contained in a credit report given to a credit provider who requested the report for the purpose of assessing an application for credit made by the individual to the credit provider; or (ab) … ;or (ac) …; or (b) the information is contained in a credit report given to a credit provider who requested the report for the purpose of assessing an application for commercial credit made by a person to the credit provider, and the individual to whom the report relates has specifically agreed to the report being given to the credit provider for that purpose; or … (my emphasis) As indicated earlier, by allowing its subscribers access to its database, Veda did, in my view, give "credit reports" to them for the purposes of the Privacy Act. Paragraph (a) refers to an application for consumer credit. In that case the prior consent of the individual to disclosure is not required. Paragraph (b) refers to an application for commercial credit. In that case the individual's prior consent to disclosure is required, and subs (1A) of s 18K provides that the individual's consent must be in writing unless a certain exception applies. 53 To be distinguished from s 18K(1) is s 18E(8)(c) referred to at [33] above. One effect of s 18E(8) is that a credit provider must not list a default, whether a consumer default or a commercial default, unless the conditions set out in that subsection are met. One of these is that the credit provider informed the individual, before obtaining information from him or her that, relevantly, a default might be listed with a credit reporting agency. No doubt a desirable precaution would be to obtain the individual's signed acknowledgment and consent. Apparently this practice is followed by some credit providers. Section 18K(1), on the other hand, is concerned with disclosure by credit reporting agencies, and requires, as one alternative, the individual's specific consent to a disclosure to a credit provider to whom the individual has applied for commercial credit. 54 Subsection (2) of s 18K prohibits a credit reference agency from disclosing personal information where, generally speaking, the credit reporting agency would be prohibited by s 18E from including the information in the individual's credit information file, or would be required by s 18F to delete it from that file. 55 Subsection (4) of s 18K provides that a credit reporting agency that intentionally contravenes, relevantly, subs (1) or (2) of s 18K, is guilty of an offence punishable, on conviction, by a fine not exceeding $150,000. 56 Section 18M provides that if a credit provider refuses an application by an individual for credit and the refusal is based wholly or partly on information derived from a credit report relating to that individual that a credit reporting agency has supplied, the credit provider must give the individual a written notice stating that the application has been refused; that the refusal was so based; the name and address of the credit reporting agency; and that the individual has a right under the Privacy Act to obtain access to his or her credit information file maintained by the credit reporting agency. 57 Section 18R of the Privacy Act provides: (1) A credit reporting agency or credit provider must not give to any other person or body (whether or not the other person or body is a credit reporting agency or credit provider) a credit report that contains false or misleading information. (2) A credit reporting agency or credit provider that intentionally contravenes subsection (1) is guilty of an offence punishable, on conviction, by a fine not exceeding $75,000. Section 18R(1) imposes an absolute obligation on Veda not to make available to its enquiring credit providers information contained in its database that is "false or misleading". On its face, this provision is to be contrasted with the qualified obligations imposed on the credit reporting agencies by ss 18E(1) and 18G discussed above. However, the provision raises a question of whether information contained in an extract from Veda's database is false or misleading where the enquiring credit provider, being also a subscriber to Veda's system, understands the information to be, and it is in fact, an accurate reproduction of information that had been fed into that database by other subscribing credit providers. Contravention of s 18R(1) is an offence only if that subsection is contravened intentionally. 58 Clause 1.4 of the Code provides: Where a credit reporting agency: (a) becomes aware that information supplied by a credit provider relating to an overdue payment or a serious credit infringement may be inaccurate; and (b) reasonably believes that other credit information files may contain similar inaccurate listings, the credit reporting agency must, as soon as practicable: (i) notify the credit provider concerned, in writing, that it may have listed an inaccurate overdue payment or serious credit infringement against the individual concerned; (ii) request the credit provider to ascertain whether other individuals' credit information files may be similarly affected, and to investigate the accuracy of any overdue payment or serious credit infringement listing in those other individuals' files; and (iii) advise the Privacy Commissioner in writing of the above actions. Clause 1.4 may be compared with cl 1.3 of the Code discussed at [41]-[42] above. 59 In the present cases, Veda became aware that listed particulars of defaults may have been inaccurate as a result of challenges made to their accuracy by the individuals concerned or by DR Capital on their behalf. The gravamen of the applicants' complaint is not that Veda did not respond appropriately or with sufficient speed to the challenges. Their complaint is in respect of the listing of the defaults at all. In any event, any tardiness on the part of Veda would assume relevance only in relation to an inaccurate listing. 60 It remains to refer to the "Information Privacy Principles" and the "National Privacy Principles". 61 The Information Privacy Principles are the privacy principles numbered 1 to 11 set out in s 14 of the Privacy Act. I will not set them out here. Section 13 provides, relevantly, that for the purposes of the Privacy Act, an act or practice is an interference with the privacy of an individual if the act or practice, in the case of an act or practice engaged in by, relevantly a credit reporting agency or credit provider, breaches an Information Privacy Principle in relation to personal information that relates to the individual. 62 The National Privacy Principles are set out in Schedule 3 to the Privacy Act. They impose obligations on "organisations". Section 6C of the Privacy Act defines an "organisation" to mean relevantly, a body corporate that is not a small business operator, a registered political party, an agency, a State or Territory authority or a prescribed instrumentality of a State or Territory. The expression "agency" is defined in s 6 and does not include either a credit reporting agency or a credit provider. The National Privacy Principles therefore apply to Veda: it is an organisation and is not within the exclusion. I will not set out the National Privacy Principles here. 63 Part V (ss 36-70B) of the Privacy Act is headed "Investigations". Section 36, the first section in Div 1 (ss 36-51) in Pt V, provides, relevantly, that, subject to exceptions, an individual may complain to the Commissioner about an act or practice that may be an interference with the privacy of the individual. Clause 3.2 of the Code provides that where a credit reporting agency is unable to resolve a dispute, it must immediately inform the individual concerned of this fact and of the fact that the individual may complain to the Commissioner. 64 Section 40(1) provides that subject to subs (1A), the Commissioner must investigate an act or practice if: (a) the act or practice may be an interference with the privacy of an individual; and (b) a complaint about the act or practice has been made under section 36. Subsection (1A), however, provides that the Commissioner must not so investigate a complaint if the complainant did not first complain to the respondent, unless the Commissioner decides that it was not appropriate for the complainant to complain to the respondent first. 65 Section 41(1) provides, relevantly, that the Commissioner may decide not to investigate, or not to investigate further, an act or practice about which complaint has been made under s 36 if the Commissioner is satisfied that: (a) ... ; [there is no (b)] (c) ... ; (d) ... ; (e) the act or practice is the subject of an application under another Commonwealth law, or a State or Territory law, and the subject-matter of the complaint has been, or is being, dealt with adequately under that law; or (f) another Commonwealth law, or a State or Territory law, provides a more appropriate remedy for the act or practice that is the subject of the complaint. 66 The first section in Div 2 (ss 52-53B) of Pt V, s 52 provides, relevantly, as follows: (1) After investigating a complaint, the Commissioner may: (a) make a determination dismissing the complaint; or (b) find the complaint substantiated and make a determination that includes one or more of the following: (i) a declaration: (A) … (B) … - that the respondent has engaged in conduct constituting an interference with the privacy of an individual and should not repeat or continue such conduct; (ii) a declaration that the respondent should perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant; (iii) a declaration that the complainant is entitled to a specified amount by way of compensation for any loss or damage suffered by reason of the act or practice the subject of the complaint; (iv) a declaration that it would be inappropriate for any further action to be taken in the matter. (1A) The loss or damage referred to in paragraph (1)(b) includes injury to the complainant's feelings or humiliation suffered by the complainant. (1B) A determination of the Commissioner under subsection (1) is not binding or conclusive between any of the parties to the determination. (2) … (3) … (3A) … (3B) A determination may include an order that: (a) an agency or respondent make an appropriate correction, deletion or addition to a record, or to a credit information file or credit report, as the case may be; or (b) … 67 Division 3 (ss 54-55B) of Pt V provides for enforcement of determinations made under s 52. Section 55 provides: Determination under section 52 (1) An organisation that is the respondent to a determination made under section 52: (a) must not repeat or continue conduct that is covered by a declaration that is included in the determination under sub-subparagraph 52(1)(b)(i)(B); and (b) must perform the act or course of conduct that is covered by a declaration that is included in the determination under subparagraph 52(1)(b)(ii). Determination under approved privacy code (2) An organisation that is the respondent to a determination made under an approved privacy code: (a) must not repeat or continue conduct that is covered by a declaration that is included in the determination and that corresponds to a declaration mentioned in paragraph (1)(a); and (b) must perform the act or course of conduct that is covered by a declaration that is included in the determination and that corresponds to a declaration mentioned in paragraph (1)(b). 68 Section 55A provides for proceedings in this Court or the Federal Magistrates Court of Australia to enforce a determination. The section provides in subs (1) for the persons who may commence proceedings for an order to enforce a determination. They include the complainant and, if the determination was made under s 52, the Commissioner. Section 55A provides in subss (2)-(5) as follows: (2) If the court is satisfied that the respondent has engaged in conduct that constitutes an interference with the privacy of the complainant, the court may make such orders (including a declaration of right) as it thinks fit. (3) The court may, if it thinks fit, grant an interim injunction pending the determination of the proceedings. (4) The court is not to require a person, as a condition of granting an interim injunction, to give an undertaking as to damages. (5) The court is to deal by way of a hearing de novo with the question whether the respondent has engaged in conduct that constitutes an interference with the privacy of the complainant. 69 As appears at [90] ff below, I do not find it necessary to address the question whether the provisions in Pt V of the Privacy Act noted above are inconsistent with the continued subsistence of causes of action in defamation and negligence. The provisions are relevant, however, to Veda's contention that the common law did not impose on Veda a duty of care in respect of the accuracy of default listings (see [374] ff below).

[4]

"Consumer Defaults" and "Commercial DefaultS" 70 The expressions "consumer default" and "commercial default" were much used in submissions. They are not used in the Privacy Act. They refer to a default in relation to the provision of (consumer) credit on the one hand and commercial credit on the other (see [23] above). For convenience, I will also use the expressions "consumer default" and "commercial default". 71 Veda frequently submitted in relation to a listed commercial default that the Privacy Act had no application. Veda was pleased to draw attention to the fact that the listed defaults in relation to Dale, McGary and Shields were not consumer defaults but were commercial defaults, with the consequence, so Veda submitted, that the Privacy Act, and, in particular, s 18E(1)(b)(vi) and (x) and (ba) had no application. 72 With respect, this way of describing the position was apt to mislead. 73 I gave a detailed account of s 18E at [28]ff. It was not disputed that Veda was a credit reporting agency to which that section applied. I set out the definition of "personal information" at [12] above. The expression is not defined by reference to "credit", the definition of which (as consumer credit) I set out at [21] above. I set out the definition of "credit information file" at [30] above and the definition of "credit reporting business" at [18] above. 74 The notion of a "credit information file" is central to the operation of s 18E. I will return to that concept below. 75 Section 18E(1) prohibits a credit reporting agency, such as Veda, from including personal information in an individual's credit information file unless the information satisfies para (a), (b), (ba), (c) or (d) of s 18E(1). Subparagraphs (vi) and (x) of para (b) of s 18E(1) and para (ba) of that subsection are all dependent, in various ways, on the notion of "credit". As noted at [20] above, the word "credit" standing alone in the Privacy Act means consumer credit. This is why, by way of reminder, I have sometimes written "(consumer) credit" in these Reasons. 76 Section 18E(1) prohibits a credit reporting agency from including particulars of commercial defaults in an individual's "credit information file", not because of any failure to give a notice or to take recovery steps, but because commercial defaults do not fall within any of the classes of (consumer) credit information referred to in s 18E(1) at all. 77 In a sense it is true that a default in relation to commercial credit does not have to "satisfy" the constraints referred to in subparas (vi) and (x) of para (b) or in para (ba) of s 18E(1) because those provisions refer only to (consumer) credit. However, those provisions identify information which a credit reporting agency is permitted to include in an individual's credit information file, and commercial defaults lie entirely outside the scope of such information. Thus, while it is beside the point for the applicants to complain that the "requirements" of those provisions are not met in relation to a commercial default, it is also wrong to assume that this means that commercial defaults may be recorded in a credit information file regardless of those requirements. 78 It would be possible for me to spend some time discussing what is the "credit information file" of each of the applicants in the context of Veda's electronic database, and the question whether, in contravention of s 18E, Veda included commercial defaults in that credit information file (as distinct from in any "commercial credit information file" that may have existed relating to the same applicant). But on the assumption that Veda contravened s 18E, the question arises where that leads. The applicants do not sue for breach of statutory duty. The gravamen of their defamation claims is that the listed default conveyed the defamatory imputations concerning them that are identified in their respective TFASCs. The gravamen of their claims in negligence is that the listed default was inaccurate. 79 Moreover, even if Veda contravened s 18E by including commercial defaults in the applicant's (consumer) credit information files, I do not know that the applicants would be any worse off than they would have been if Veda had included the identical commercial defaults in "commercial credit information files" that were accessed by enquiring credit providers at the same time as they accessed the (consumer) credit information files. 80 For the above reasons, I do not find it necessary to explore the question whether Veda contravened s 18E by including commercial defaults in (consumer) credit information files that it maintained in respect of the applicants. That is not the pleaded case and it is doubtful that a different pleading of the case would have improved the position of the applicants in the present respect. 81 Before moving from the present issue, I should note, in fairness to Veda, that business records of Veda that are in evidence demonstrate that Veda is well aware of the present distinction. For example, the "Veda Advantage Default Information Guide" states: The foundation of our services is our database: The largest single source of credit information in Australia. Our database contains more than 14 million consumer and 2.8 million commercial credit files. It includes records on the credit activity of Australian individuals, companies and businesses. [my emphasis] The document continues by informing readers of constraints imposed by the Privacy Act on dealings with "an individuals' consumer credit file" (emphasis in original).

[6]

Schedule A set out verbatim certain information that was recorded in the credit information file maintained by Veda in respect of Mr Dale. It showed that Bartercard Ltd Qld (Bartercard) listed a "Clearout (Watched)" default on 20 March 2000, showing an "amount" of $1174. Since the "Latest Date" is also 20 March 2000, we know that Bartercard did not update the listed default. 85 In the case of Dale, Fisher, Marker, Shields and Strange, there was also a Schedule B to the TFASC. In the cases of Adams, McGary, Taylor and Tyndall, there was only a Schedule A. As will be seen below, the Schedules B were also extracts of information recorded in the relevant credit information files. Each Schedule B was identical to the Schedule A annexed to the same TFASC but for one difference: the Schedule B had an additional final line which recorded that the debt in question had a "Status" of "Paid" or "Settled" as at a specified "Status Date". As appears at [96] below, in Mr Dale's case the additional line gave a Status of Paid as at a Status Date of 20 June 2003. 86 Where a TFASC had both Schedules A and B annexed, the TFASC alleged that the material complained of in Schedule A had been published to one or more enquiring credit providers prior to the recording of the payment and that the material complained of in Schedule B had been published to one or more credit providers after the recording of the payment or settlement. 87 The meanings of expressions that were used in the credit information files were to be found in an "Internet User Guide" that Veda provided to its subscribers (Guide). The Guide instructed subscribing credit providers as to the "codes" by which various types of defaults were to be listed and, it follows, by which the listed defaults were to be understood. The expression "Clearout (Watched)" was listed in the Guide under the heading "Commercial Credit Default Report Types". In relation to this expression, the Guide stated: The account must be a confirmed missing debtor e.g. skip or clearout. There must be reasonable efforts made to contact the debtor in person or in writing. You can list a clearout immediately, you do not have to wait the 60 days as long as efforts have been made to prove the debtor is a confirmed missing debtor. 88 The reference to "the 60 days" is explained by the definition of "Payment Default", which was another Commercial Credit Default Report Type that was defined on the same page of the Guide as follows: The account must be 60 days or more overdue and the debtor or debtors must have been sent a written notice advising of the overdue payment, and requesting payment of the amount outstanding. The expression "Repossession Loss (after sale)" was defined on the same page of the Guide as "The amount outstanding after sales of goods". 89 It is convenient to note that the expression "Payment Default" was also listed under the heading "Individual Consumer Credit Default Report Types" in the Guide and was defined there in the same way. The Individual Consumer Credit Default Type that was comparable to "Clearout (Watched)" was "Serious Credit Infringement (Confirmed Clearouts only)". This was defined as follows: Must be a confirmed missing debtor e.g. a skip or clearout. There must be reasonable efforts made to contact the debtor in person or in writing. You can list a SCI [Serious Credit Infringement] immediately, you do not have to wait 60 days as long as efforts have been to prove the debtor is a confirmed missing debtor. No doubt the reason why there is no reference to "serious credit infringement" in the case of the Commercial Credit Default Report Type "Clearout (Watched)" is that the Privacy Act's definition of "serious credit infringement" in s 6(1)(set out at [31] above) relates only to consumer credit. Apparently the author of the Guide considered that in all circumstances, the inability, after efforts, of a credit provider to contact a consumer after he or she had left his or her last address known to the credit provider, would satisfy that definition of "serious credit infringement". There was no Indivdual Consumer Credit Default Type comparable to "Repossession Loss (after sale)". 90 The terms "Paid" and "Settled" are defined in the Guide under the heading "Default Status Types" as follows: Paid A defaulted account, which has been paid in full and is now closed. Settled A defaulted account, which was in default, and a lesser amount has been agreed upon by both parties to be paid as full and final payment.

[7]

91 According to Mr Dale's TFASC, the words and figures or information in Schedule A concerning Mr Dale were published to the following entities on the following dates: (a) 19 October 2000 Direct Mortgage Solutions; (b) 24 November 2000 American Exp New Accts NSW; (c) 25 November 2000 Citibank Limited; (d) 27 November 2000 American Exp New Accounts NSW; (e) 2 January 2001 Citibank Limited; (f) 19 June 2003 S E Rentals Pty Ltd. [3] These particulars are records in Mr Dale's credit information file of occasions on which credit providers, to whom Mr Dale had applied for consumer or commercial credit, accessed his file. I will use the term "enquiring credit providers" to refer to subscribing credit providers who recorded an applicant's application for consumer or commercial credit in that applicant's credit information file. Of course, all six alleged publications of the matter complained of in Schedule A post-dated the date of the listing of "Clearout (Watched)" by Bartercard on 20 March 2000. I will use the expression "listing credit provider" to refer to a subscribing credit provider, such as Bartercard in Mr Dale's case, that listed a default. 92 The matter referred to in Schedule A conveyed the following imputations each of which was defamatory of Mr Dale: 1. That the applicant refused to pay to a creditor a debt of $1,174.00 which he was legally obliged to pay before 20 March 2000. 2. That the applicant had since before 20 March 2000 been unable to pay his debts. 3. The applicant is a credit risk by reason of his continuing failure since 2004 to pay a creditor a debt of $1,174.00 which he is legally obliged to pay despite being sent a written notice by the creditor requesting payment. 4. The applicant had engaged in fraudulently evading his obligations to pay his debts. 5. The applicant is reasonable [sic - reasonably] suspected by a creditor of fraudulently evading his obligation to pay his debts. 6. The applicant is a serious credit risk. 7. That the applicant has taken advantage of his change of address in order to evade his obligations to pay his debts. 8. That the applicant is reasonably suspected by a creditor of taking advantage of his change of address to evade his obligations to pay his debts. [4] 93 Imputations (a)-(c) were conveyed by the natural and ordinary meaning of the matter complained of or with the aid of extrinsic facts known to the persons to whom that matter was published, while imputations (d)-(h) were conveyed with the aid of extrinsic facts known to those persons. 94 The following particulars of extrinsic facts are given: (a) The persons to whom the matter was published were employees or agents of the companies to whom the matters complained of were published. (b) The companies were subscribers of the respondent enabling the companies to have access to its "Business Information Services" products and services including its internet data base. (c) The respondent published to its subscribers an "internet user guide" to enable users to access credit information files including credit information files concerning the applicant. The respondent also conducted training seminars using its internet user guides to train subscribers and users, inter alia, how to access and use credit information files and how to interpret the information on these files and how to provide information to be recorded on those files. (d) Persons accessing the information were required to use operator identification codes, which would be provided to them by the respondent. (e) In the respondent's "internet user guide" the following appears in relation to individual consumer credit default type reports: "Serious credit infringement (confirmed clear outs only)" [The definition from the Guide is set out - see [89] above] "Payment Default" [The definition from the Guide is set out - see [88], [89] above] A default is an account that is usually 60 days or more overdue, where $100 or more is owed for which you have commenced collection action. Once listed with Baycorp Advantage - Business Information Services, the default will remain in file for five years. (p 53) (f) In the respondent's "internet user guide" the following appears in relation to commercial credit default reports: "Clearout (Watched)" [The definition from the Guide is set out - see [87] above] "Payment Default" [The definition from the Guide is set out - see [88] above] A default is an account that is usually 60 days or more overdue, where $100 or more is owed and for which you have commenced collection action. Once listed with Baycorp Advantage- Business Information Services, the default will remain in file for five years. (p 37) (g) The persons to whom the matter was published knew each of the facts referred to in (c) and (f) and were aware [of] and understood the "internet user guide" as a whole. (h) Section 18E(1) of the Privacy Act 1988provides that a credit reporting agency must not include personal information in an individual creditors [sic - individual's credit] information file unless it comes within the circumstances set out in s.18E(1). The only subsection to which the personal information "clearout (watched)" could be authorised is under s.18E(1)(b)(x) which is that the information is a record of "the opinion of a credit provider that the individual has in the circumstances specified, committed a serious credit infringement". Under s 6(1) of the Privacy Act "serious credit infringement" is defined to mean: "an act done by a person: (a) that involves fraudulently obtaining credit, or attempting fraudulently to obtain credit; or (b) that involves fraudulently evading the person's obligations in relation to credit, or attempting fraudulently to evade those obligations; or (c) that a reasonable person would consider indicates an intention, on the part of the first-mentioned person, no longer to comply with the first-mentioned person's obligations in relation to credit." (i) Even if the persons to whom the matter complained of was published was [sic - were] not aware of the precise terms of sections 18E or 6 they knew that "clearout (watched)" meant that the debtor was either engaged in fraudulently evading or attempting to evade his/her obligations to pay her [sic - his/her] debts to the credit provider or that the credit provider had formed that opinion. (j) The persons to whom the matter complained of [was published] knew that a clearout is a default which remains listed on a credit report for seven years, whereas a payment default is removed five years after listing. (k) The persons to whom the matter complained of [was published] knew the New South Wales Consumer Credit Act 1995 which adopts the Consumer Credit Queensland Act states inter alia a credit provider must not begin enforcement proceedings against a debtor in relation to a credit contract unless the debtor is [in] default under the credit contract and the credit provider has given the debtor or any guarantor, a default notice, complying with the section, in turn allowing the debtor a period of thirty days from the date of the notice to remedy the default. 95 Veda further published of and concerning Mr Dale the information in certain credit reports which included the words and figures or, alternatively, the information set out in Schedule B to the TFASC[5]. The following particulars of publication are given: (a) 24 June 2003 Optus Commun Aust NSW; (b) 10 November 2003 CBFC Rentals Pty Limited ... . 96 Schedule B was as follows: SCHEDULE B Account No: 0724019 Account Type: Credit Card Association Code: Principal's Account Latest Subscriber: BARTERCARD LTD QLD Latest Date: 20/03/2000 Latest Amount: $1174 Latest Reason: Clearout (Watched) Original Subscriber: BARTERCARD LTD QLD Original Date: 20/03/2000 Latest Amount: $1174 Original Reason: Clearout (Watched) Status: Paid Status Date: 20/06/2003

[8]

Of course, both of the alleged publications of the matter complained of in Schedule B post-dated the Status Date of 20 June 2003. 97 The matter referred to in Schedule B contained the following imputations each of which was defamatory of Mr Dale: (a) That the applicant had for more than three years refused to pay a creditor a debt of $1,174.00 which he was legally obliged to pay. (b) That the applicant only paid to a creditor the debt of $1,174.00 on or about 20 June 2003 which he had been legally obliged to pay since before 20 March 2000 when the non payment of the debt was made the subject of a credit report about the applicant. (c) That between March and June 2003 the applicant had been unable to pay his debts. (d) That the applicant is a credit risk by reason of the circumstance of his failure to pay a creditor until or about 20 June 2003 a debt of $1,174.00 which he was legally obliged to pay to the creditor before 20 March 2000. (e) The applicant had engaged in fraudulently evading his obligations to pay his debts. (f) The applicant is reasonable [sic - reasonably] suspected by a creditor of fraudulently evading his obligation to pay his debts; and (g) The applicant is a serious credit risk. (h) That the applicant has taken advantage of his change of address in order to evade his obligations to pay his debts. (i) That the applicant is reasonably suspected by a creditor of taking advantage of his change of address to evade his obligations to pay his debts. [6] 98 Imputations (a)-(d) were conveyed by the natural and ordinary meaning of the matter complained of, or alternatively, with the aid of extrinsic facts known to the persons to whom the matter was published. Imputations (e)-(i) were conveyed with the aid of extrinsic facts known to those persons. Mr Dale repeats the particulars of extrinsic facts in para 4 of the TFASC set out at [94] above. 99 Paragraphs 7 and 7A are referable to the way in which information was entered in Veda's database and extracted from it. In all cases it was entered electronically directly by subscribers and extracted electronically directly by them. In some cases, however, it was extracted by the credit provider's computer and not viewed on a screen or otherwise by a human being, but immediately acted upon by reason of a program in the credit provider's own computer. 100 In his affidavit, Adam John Champion, a Solutions Consultant employed by Veda, used the term "System-to-System" to refer to this process. In such cases, where the credit report was adverse, depending on the enquiring subscriber's computer program, the individual's application for credit was automatically rejected, and the rejection letter automatically produced and sent to him or her. Veda's argument was that in these circumstances there was no publication to a human mind and that for this reason one of the essential aspects of the element of publication in the cause of action in defamation was absent. The applicants accept that communication to a human mind is necessary but submit that it should be inferred from all the evidence that such communication took place (I address the present issue in relation to the respective applicants at [154] ff below). Paragraph 7 of the TFASC addresses the System-to-System situation. 101 In other cases, while an operator employed by the enquiring subscriber viewed on the computer screen information extracted from Veda's database, it might be that only a "File Summary" rather than the entirety of the information referred to in Schedules A and B was read. Paragraph 7A of the TFASC addresses this possibility. 102 Paragraphs 7 and 7A of Mr Dale's TFASC are as follows: 7. To the extent, which is not admitted, that it may be found that notwithstanding the information published to the recipients referred [to] in paragraph 3 and 5 it was not read or not read in its entirety by an individual on behalf of the recipients but was interpreted or assessed by a computer which computer recommended any application for credit be declined, the information referred [to] in Schedules A and B conveyed the following imputations. (a) The applicant was a credit risk because of his failure for more than 60 days to pay a debt or debts which he was legally obliged to pay despite being sent a written notice by the creditor advising of the overdue payment and requesting payment of the amount outstanding. (b) The applicant was a credit risk because he drew a cheque for more than $100.00 which was twice presented and dishonoured. (c) The applicant was a credit risk because he was the subject of a court judgement against him. (d) The applicant was a credit risk because he was the subject of a bankruptcy order. (e) The applicant was a credit risk because he was reasonably suspected by a creditor of fraudulently evading his obligations to pay his debts. (f) That the applicant was a credit risk for one or more of the following reasons: (i) His failure for more than 60 days to pay a debt or debts which he was legally obliged to pay despite being sent a written notice by the creditor of the overdue payment and requesting payment of the amount outstanding. (ii) He drew a cheque for more then $100 which was twice presented and dishonoured. (iii) He was the subject of a court judgment against him. (iv) He was the subject of a bankruptcy order. (v) He was reasonably suspected by a creditor of fraudulently evading his obligations to pay his debts. Particulars of Extrinsic Facts The imputations were conveyed with aid of the following extrinsic facts known to the person or persons who knew that the applicant's application had been declined. (a) The only information in the information published wholly or partly based upon which would cause a recommendation [sic] the applicant's application be declined was information that (i) That the applicant had committed a default, namely that the applicant was at least 60 days overdue in making payment to creditor or as a guarantor 60 days had elapsed since notice ... was given to him of a borrower's default that gave rise to his obligation to make a payment to the creditor provider [sic - credit provider] under a guarantee and that the credit provider had taken steps to recover the overdue payments; or (ii) That a cheque for an amount not less than $100.00 had been drawn by the applicant and had twice been presented and dishonoured; or (iii) That there was a court judgement against the applicant; or (iv) The bankruptcy orders had been made against the applicant; or (v) That in the opinion of a credit provider the applicant had in the circumstances committed a serious credit infringement namely had ... fraudulently evaded his obligations to pay his debts; or (vi) One of [sic] more of the above. 7A. If, which is not admitted, the information published to the recipients of and concerning the applicant referred to in paragraph[s] 3 and 5 above was not read in its entirety by an individual on behalf of the recipients and that individual or individuals on behalf of the recipients only read the applicant's name and address, the word 'defaults' and the number next to it in the 'File Summary' as part of the 'Risk OnLine Individual Display', the information so read conveyed the following imputation which was defamatory of the applicant: (a) The applicant was a credit risk because of his failure for more than 60 days to pay a debt or debts which he was legally obliged to pay despite being sent a written notice by the creditor advising of the overdue payments and requesting payment of the amount outstanding. Particulars (a) The File Summary first referred to is the File Summary described in the respondent's "Internet User Guide", and which in version 5.2 dated August 2005 is at page 50. The File Summary secondly referred to as being part of the "Risk OnLine Individual Display" is the File Summary described in the respondent's "Internet User Guide" and which in version 5.2 dated August 2005 is at page 30. (b) The imputation was conveyed by the natural and ordinary meaning of the information or alternatively was conveyed with the aid of extrinsic facts known to the individuals who on behalf of the recipients read the said information. Particulars of Extrinsic Facts Default or payment default means an account which is 60 days or more overdue and the debt or debtors have been sent a written notice advising of the overdue payment and requesting payment of the amount outstanding and where the debt is $100.00 or more collection action has been commenced against the debtor or debtors. 103 By reason of the publication of the matters complained of, Mr Dale was greatly injured in his character, credit and reputation and has suffered and will continue to suffer loss and damage [8]. Mr Dale gives the following particulars of special damages and aggravated damages: Particulars of Special Damages The credit reports were published to credit providers, financiers and/or lenders to whom the applicant had applied for credit, finance or loans and which in reliance upon the credit reports either declined the applicant's application or approved the application at increased financial cost. The applicant claims damages being the additional financial cost incurred by him in obtaining credit, financial loans as a result of the publication, the cost and damage sustained as a result of delays in obtaining credit, finance and loans as a result of the publication of the credit reports. Particulars of Aggravated Damages (a) The applicant's knowledge of the falsity of the imputations. (b) The failure of the respondent to correct the credit report in the matter complained of when requested to do so.[8] 104 Mr Dale's claim in negligence is pleaded in paras 9-11 of his TFASC. Veda owed Mr Dale a "duty of care" in publishing the matter in Schedules A and B to the persons referred to in paras 3 and 5, arising from the following: (a) Sections 18E, 18G, 18J, 18K 18R of the Privacy Act 1988 (Commonwealth) provides that a credit reporting agency (which includes the respondent) must not give to any other person or body a credit report that contains false or misleading information. (aa) The national privacy principles inserted into the Privacy Act 1988 (Commonwealth) with effect from 21 December 2001. (b) The respondent knew or ought reasonably [to] have known that the persons to whom the matter in Schedules A and B was published would rely upon that information in deciding whether to provide credit, finance or loans to the applicant, and, if so, on what terms. (c) The respondent knew or ought ... reasonably [to] have known that if the information published was false or misleading it may: (i) Cause the applicant financial loss. (ii) Lead to the refusal of an application by the applicant for finance or a loan which, had the information been accurate, may have been approved. (iii) Lead to an application for finance or a loan by the applicant ... being approved at additional financial cost to the applicant than would have been the case if the information had been accurate. (d) Part of the Credit Reporting Code of Conduct issued under s.18A of the Privacy Act requires a credit reporting agency, such as the respondent (pursuant to s. 18B), to take steps to ensure that personal information included in the credit information files and credit reports is accurate, up to date, complete and not misleading: the applicant relies upon Part 1 of the Code of Conduct, especially paragraph 1.2, 1.3 and 1.4 thereof. (e) The applicant was vulnerable to economic loss if the respondent's reports to the respondent's subscribers (who were themselves credit providers) contained inaccurate negative information prejudicial to the applicant's credit worthiness. (f) The respondent controlled the databases that were used by the respondent to compile the respondent's credit reports to the respondent's subscribers (who were themselves credit providers) in relation to the applicant's credit worthiness. [9] The TFASC does not spell out the nature of the duty of care alleged, such as whether it was a duty to exercise reasonable care to ensure that particulars of listed defaults were factually correct, or merely to ensure that the database accurately recorded and disclosed to enquiring credit providers the information that listing credit providers had entered. 105 Negligently and in breach of its duty, Veda included in the credit reports it published about Mr Dale inaccurate material that was likely to damage him [10]. According to the particulars provided, it was erroneous to show him as "Clearout (Watched)" or to record that he had defaulted in paying a debt of $1,175 [sic - $1,174] to a creditor. Veda failed to take any steps or any reasonable steps to check the accuracy of the matter in Schedules A and B or whether that matter as contained in the credit reports concerning Mr Dale or the credit information file concerning him held by Veda was in accordance with or in contravention of the Privacy Act. Veda should have implemented a pre-acceptance checklist to be completed by each subscriber before it was permitted to add an alleged default to Veda's database, which checklist should have required the subscriber to indicate that each of the required steps had been taken necessary to show that the requirements of the Privacy Act and the Internet User Guide had been met. Further, Veda did not have any or any adequate measures in place to ensure that every person (principal, servant or agent) who was authorised or permitted to add, update or amend information relating to a person's creditworthiness in Veda's database had been adequately trained in and was competent to apply the correct criteria that had to be satisfied before negative default information could properly be included in Veda's database for future inclusion in its credit reports. 106 Finally, by reason of Veda's negligence and breach of duty, Mr Dale suffered loss and damage "and/or lost the chance of obtaining credit on more favourable terms" [11]. Mr Dale repeats the particulars of Special and Aggravated Damages set out at [106] above.

[15]

112 The defence denies that any of the matters complained of are capable of conveying the imputations alleged or that any of the imputations alleged are capable of being defamatory of Mr Dale. Both of these defences are pleaded in relation to the matter complained of in paras 3, 5, 7 and 7A of the TFASC [(d), (g), (h), (i)]. 113 The defence pleads a substantial defence based on provisions of the Privacy Act. I have summarised the provisions of that Act above and will discuss them further below. 114 First, the defence says that by reason of the provisions of the Privacy Act and the Code, the State and Territory laws, in so far as they purport to provide or create a cause of action in defamation or negligence against Veda, are inconsistent with the Privacy Act and the Code, and are invalid to the extent of that inconsistency by reason of s 109 of the Constitution [(v)(i)]. In so far as Mr Dale relies on any cause of action or matter of defence arising from the common law, that common law is modified by and subject to the provisions of the Privacy Act and the Code [(v)(ii)]. 115 By reason of those matters, Mr Dale has no valid action at law in damages for defamation or negligent breach of duty of care or breach of a statutory duty [w]. Veda has complied with the provisions of the Privacy Act and the Code and is therefore not liable to Mr Dale on any of the causes of action pleaded in his TFASC [(x)]. 116 In so far as it is found (which is denied) that the matter complained of was published in New South Wales, Victoria, South Australia, Western Australia or the territories of the Australian Capital Territory or the Northern Territory, the matter complained of was published on an occasion of qualified privilege [(y)]. 117 In so far as it is found (which is denied) that the matter complained of was published in Queensland or Tasmania, the publication was made in good faith for the protection of the interests of Veda or of some other person, or, alternatively, the publication was made in good faith in answer to an enquiry made of Veda relating to a subject as to which the enquirer had or was believed on reasonable grounds by Veda to have an interest in knowing the truth or, alternatively, the publication was made in good faith for the purpose of giving information to the enquirer with respect to some subject as to which the enquirer had or was believed on reasonable grounds by the person making the publication to have such an interest in knowing the truth as to make Veda's conduct in making the publication reasonable under the circumstances [(z)]. 118 As particulars, Veda states that it relies upon qualified privilege at common law and under s 22 of the Defamation Act 1974 (NSW) (Defamation Act) in so far as it is found that publication took place in New South Wales. 119 Veda elaborates on these particulars in the following seven paragraphs: 9. at or about the time of each of the publications the Applicant was an applicant for credit from a credit provider; (ii) at the time of the publications the Respondent was a credit reporting agency within the meaning of the Privacy Act; (iii) the matter complained of related to the credit worthiness of the Applicant; (iv) the matter complained of was published only to credit providers to whom the Applicant had applied for credit and who were subscribers to the services provided by the Respondent and in the course of the Respondent providing to them services for which they subscribed; (v) at the time of the publications alleged: (A) the Respondent had a social, moral and/or legal duty and interest in receiving the information concerning the Applicant's creditworthiness from credit providers, and in permitting credit providers who were subscribers access to that information; (B) the credit providers who accessed the Respondent's data system and to whom the matters complained of were published had a reciprocal duty and interest in receiving the information concerning the Applicant accessible on the Respondent's data system; (vi) in receiving, storing and making accessible to the credit providers to whom the matters complained of were published, the Respondent complied, where it was applicable, with the provisions of the Privacy Act and Privacy Code of Conduct; (vii) the conduct of the Respondent in publishing the matters complained of was reasonable. 120 In so far as it is found that the matter complained of was published in Queensland, Tasmania, New South Wales or the Australian Capital Territory, publication was made in circumstances in which Mr Dale was not likely to suffer harm as a result [(aa)]. 121 Finally, Veda did not know that the publication in question contained the defamatory material alleged by Mr Dale, or that that material was likely to be defamatory of him, such lack of knowledge was not due to negligence on Veda's part, and as a result Veda is not liable to Mr Dale [(bb)].

[17]

GENERAL NATURE OF THE EVIDENCE and of the size and modus operandi of veda's business 126 Underlying many of the issues raised in the case is the size of Veda's business. The evidence shows that it is by far the largest consumer credit reporting agency in Australia. Its only real competitor, Dun and Bradstreet, is very small by comparison. Veda holds approximately 14.5 million credit information files in respect of individuals, and it holds these files in respect of approximately 98 percent of the "individual credit active population". Approximately 1.2 million credit information files are accessed per month or, expressed in another way, 40,000 per day during a 30 day month, 40,000 per day. For the year ended 30 June 2005, Veda's "Business Information Services" revenue was $122,456,000. 127 No practicable method was suggested by which Veda could itself verify the correctness of the information before it is fed into its database by credit providers. Veda has to rely on its subscribers for the correctness of the listing of defaults. However, the evidence shows: · that in applying to become a subscriber, a credit provider undertakes to Veda to "report default accounts for both business and consumer credit … on a regular basis" and to "comply with all applicable legislation (including any … obligations under the Privacy Act 1988)" and acknowledges that Veda obtains all information on its database from its customer or other third parties and "relies on those suppliers to ensure that the information is accurate"; · that Veda offers to its subscribers "subsidised training" either at Veda's premises or in the subscriber's own office on, inter alia, the Privacy Act and the National Privacy Principles, although it is a matter for subscribers whether to take advantage of this opportunity; · that Veda issues to its subscribers, in addition to the Guide, a "Veda Advantage Default Information Guide" which gives technical instructions as to how to list defaults, offers consultation on the development of training material, facilitation of training programmes and on-going support, and reminds subscribers that the Privacy Act places an obligation on them "to ensure that default information reported to Veda … is correct" and that they "must ensure that the amount of the account reported is correct, and the identity details [they] supply are complete and accurate"; and · that there is a group of Veda employees whose task is to interact with subscribers, answer their questions and assist them. 128 The applicants suggest further steps that they say Veda could and should have taken in order to reduce the risk of error by listing credit providers. I discuss those suggested further steps when dealing with the claims in negligence at [420] ff below. 129 Each applicant, pursuant s 18H of the Privacy Act, authorised DR Capital in writing to exercise the applicant's statutory right of access under that section. As noted earlier, DR Capital was itself a subscriber to Veda's system. By accessing Veda's database, it obtained a printout of an "Individual Consumer and Commercial Report" (ICCR) in respect of each applicant. The ICCRs relating to all applicants were similarly structured and contained the same kinds of data. The headings in the ICCRs included "Summary Information" under which was listed, inter alia, the number of defaults listed in the ICCR; "Commercial Defaults", "Consumer Defaults"; "Consumer Credit Applications", "Commercial Credit Enquiries", and "Consumer Authorised Agent Enquiries". The ICCRs had a "current date" which was the date of the most recent "Consumer Authorised Agent Enquiry" made by DR Capital. 130 By way of example, the ICCR relating to Mr Dale shows that he made a total of eight applications for credit or commercial credit, all of which were dated after the entry of "Clearout (Watched)" by Bartercard on 20 March 2000. The first six were recorded under the heading "Consumer Credit Applications". The remaining two were recorded under the heading "Commercial Credit Enquiries". In chronological sequence the eight were: 19/10/2000 Direct Mortgage Solutions Amount $124,000.00 Real Estate Mortgage 24/11/2000 AMERICAN EXP NEW ACCTS NSW Amount $0.00 Terms 25/11/2000 CITIBANK LIMITED Amount $0.00 Continuing Credit Contract 27/11/2000 AMERICAN EXP NEW ACCTS NSW Amount $0.00 Terms 02/01/2001 CITIBANK LIMITED Amount $0.00 Continuing Credit Contract 24/06/2003 OPTUS COMUNE AUST NSW Amount $0.00 Telecommunications Services 19/06/2003 SE RENTALS pTY lTD Amount $0.00 Leasing 10/11/2003 CBFC LTD SYDNEY NSW Amount $0.00 Director's access

[18]

These records of applications made by Mr Dale say nothing as to the results of the applications. Mr Dale's testimony showed that some were successful and others not. 131 Each applicant administered an interrogatory asking Veda in relation to an attached ICCR relevant to that applicant: Is this an individual consumer and commercial report about [name of applicant] obtained by accessing Baycorp Advantage Business Information Services online credit reporting database? In each case, Veda answered: The report is an individual consumer and commercial report referring to a person named [name of applicant]. The defendant has no knowledge about how the report was actually obtained or by whom. The defendant believes that of several methods of access used by subscribers, the report was obtained by the method accessing the Baycorp Advantage Business Information Services online database by an individual using the internet. 132 With one exception, the evidence in each proceeding comprised an affidavit by the particular applicant and affidavit evidence of: Ross Duncan of Solicitors Litigation Consultancy Services Pty Ltd; Jeremy Douglas-Stewart, Principal Consultant with Privacy Law Consulting Australia; Kosta Patsan; Richard George Symes, a director of DR Capital The evidence of Messrs Duncan, Douglas-Stewart and Patsan was relied on as expert testimony. The evidence of Mr Symes was of his dealings with credit providers and with Veda pursuant to the authorities given to DR Capital by the applicants. 133 The exceptional applicant was Mr Fisher. He did not attend the hearing, and neither his affidavit nor that of Mr Symes filed in his proceeding was read. 134 Veda relied on affidavit evidence given by the following employees or former employees of Veda: Rebecca Ann Barbour, Head of Veda's Call Centres; Matthew John Allison, Veda's Head of Data Management; Eric Janssens, Veda's Head of IT and Data Strategy; Adam John Champion, Solutions Consultant employed by Veda. 135 One aspect of Ms Barbour's evidence is noteworthy. She stated in her affidavit (para 14): All requests and complaints are recorded on Veda's Public Access System (PAS) where Call Centre team members record information. Consumers are advised by Call Centre staff to put any request that Veda investigate an entry on their credit file in writing. Such requests are received by the Call Centre by facsimile transmission, mail and email. Once such a request is received a File Amendment Request record is created on PAS. This involves Call Centre personnel recording on PAS a summary of the request from the consumer and steps taken to investigate the request. The original hard copy of the request from the consumer is retained by Veda for 12 months. After 12 months the hard copy of the request is disposed by Veda utilising security shredding bins. Ms Barbour explained that if the credit provider does not agree with the consumer's version of events, the version tbhat it gives will be recorded by Veda employee in the PAS (paras 20, 21). She said that the PAS records consumers' requests for amendment of their credit information file, and the sending of a copy of their credit information file to them. 136 The PAS was the source of much of the evidence to which I will have occasion to refer on the issue of the accuracy of the information concerning the applicants that Veda made available to enquiring credit providers.

[19]

Some pervasive issues 137 The evidence showed that the effect of a particular listed default in a particular case depended on the procedures and formulas used by the particular credit provider for assessing creditworthiness. However, I accept the obvious: a listed default might well cause, or contribute to causing, a credit provider who read that information to assess the individual as a poor credit risk and to refuse him or her credit or to offer him or her credit on more onerous terms than would otherwise have been the case. 138 The facts throw up the following questions affecting both the claims in defamation and in negligence: 1. Since subscribing credit providers enter information directly by electronic means into Veda's database on the basis that, as the fact is, other subscribing credit providers extract the information directly and by electronic means from the database, can it be said that for the purposes of the law of defamation and of negligence, it is Veda who is supplying to the latter credit providers the information that they obtain? For the purposes of the claim in defamation, the question is whether it is Veda that is "publishing" the matter complained of. For the purposes of the claim in negligence the question is whether it is Veda that is making the representations complained of. It does not necessarily answer these questions that within the terms and for the purposes of Privacy Act, Veda is giving a credit report to enquiring credit provider (see [48] above). 2. As noted earlier, in the case of credit providers that are large organisations, the data that is extracted by the credit provider directly and by electronic means is dealt with according to a computer program with the result that the application for credit is rejected by the operation of that program and not by the intervention of any human mind. Even the letter from the credit provider to the applicant informing him or her of the rejection is electronically generated. In these circumstances, the question arises whether there is independent evidence that any defamatory imputation reached a human mind within the office of the enquiring credit provider. 3. Having regard to the fact that Veda provides its database into which, as is known to its subscribing credit providers, they can enter and extract data directly and by electronic means, and the Privacy Act's allocation of responsibilities as between credit providers and credit reference agencies, does Veda owe a duty of care to applicants for credit in relation to the accuracy of the data? 4. On the assumption that information in an adverse credit report has been taken into account by an enquiring credit provider which in fact refused the individual's application for credit, does this, without more, establish that the adverse report caused loss or damage to the individual? For example, questions arise as to the interest rates and other terms available from the particular credit provider and from other credit providers at the time, the individual's capacity to pay, and so on. The present hearing related to liability only, and therefore I was not called upon to address the fourth question.

[20]

SYSTEM-TO-SYSTEM ACCESS AND OPERATOR REQUESTED ACCESS 139 Mr Champion made an affidavit explaining the way in which subscribers are able to access Veda's database. He was not required for cross-examination. The following account is based on his affidavit. 140 Automated or "System-to-System" access involves the computer system of a credit provider (a) obtaining data from Veda's credit information files by the use of a particular "channel" and (b) using "decisioning software" to analyse the data obtained with other data already held on the credit provider's computer relating to the individual, to generate a decision on the individual's application for credit. The evidence is that large organisations such as banks use System-to-System access. 141 By "Operator Requested" access, on the other hand, Mr Champion referred to a process by which an operator within the enquiring credit provider's office manually requests a copy of a credit information file from Veda's database. He explained that the request may be made and met via a website enquiry (the website being accessible only to Veda's subscribers) or via certain methods of access using "DataLink Mainframe" and "DataLink PC". He said that Operator Requested access will usually result in the operator viewing the credit information file, whereas System-to-System access does not do so. On the basis of this evidence of the "usual", I find that in all cases of Operator Requested access, on the balance of probabilities and in the absence of evidence to the contrary, there was a reading of the matter complained of within the office of the enquiring credit provider. 142 Mr Champion said that in relation to the System-to-System method, it was up to the subscriber how information obtained from the Veda database and sitting in the enquiring credit provider's computer system was accessed, and, in particular, whether it was ever viewed by a human being. Even though no-one may view the information at the outset, that is, when it is first downloaded onto the enquiring credit provider's computer system, someone employed by the enquiring credit provider may do so later, but Veda has no way of knowing whether or not this ever happens. 143 In his affidavit Mr Champion described the different automated System-to-System access channels used by subscribing credit providers in the period between 1999 and 2005. I need not discuss the detail of these channels. 144 I infer that in all cases of System-to-System access, on the balance of probabilities and in the absence to the contrary, the matter complained of was not read within the office of the enquiring credit provider. 145 Mr Champion reviewed the methods of access used by the enquiring credit providers in accessing the credit information files of the nine applicants. In the result, he prepared a table which was annexed to his affidavit. A copy is annexed to these Reasons for Judgment. I will refer to this document as "Mr Champion's Annexure". As can be seen, Mr Champion's Annexure discloses in relation to each applicant which accessings of the database by enquiring credit providers were "System-to-System" and which were "Operator Requested". 146 The cases of Mr Dale and Ms Shields call for special comment. In the case of Mr Dale, the default listing lodged by Bartercard on 20 March 2000 resulted in the creation of a new credit information file. On 2 January 2001, that new file was combined with the earlier one. The accessings by Direct Mortgage Solutions on 19 October 2000, "American Exp New Accts NSW" on 24 November 2000 and 27 November 2000, and Citibank Limited on 25 November 2000 all occurred prior to the merger and related to the earlier file. In those cases the file accessed did not contain the default listed by Bartercard on 20 March 2000 that marked the creation of the second file. 147 Also in relation to Mr Dale, Mr Champion has not been able to locate any record of accesses by Westpac Card Services on 1 July 2004 or by Optus Communications on 1 October 2004 referred to in Mr Dale's TFASC. 148 In relation to Ms Shields, Mr Champion states that he has not been able to locate any record of accesses by Liberty Financial on 16 November 2004, Community First Credit Union on 8 December 2004, or Mortgage House Penrith on 10 March 2005, as referred to in Ms Shields's TFASC. 149 The applicants did not dispute, in relation to all System-to-System accesses referred to in Mr Champion's Annexure, that it is necessary for them to prove, for the purposes of their claims in defamation, that the matter complained of came to a human mind within the office of the enquiring credit provider referred to in the instances of publication identified in the TFASC, and that this is not established by the mere record of the System-to-System access itself. Accordingly, for this purpose the applicants call upon aspects of their own testimony and documents that were produced on subpoena by enquiring credit providers.

[21]

(a) Publication by whom? 150 Veda submits that it was not the publisher of the matter complained of. It submits that it was in the situation of an internet service provider which permits a third party to post information using its server about which it has no knowledge at the times of posting and disclosure. Veda emphasises it did not itself review or edit the defaults listed on its database. Veda relied upon subscribing credit providers to comply with the Privacy Act. Ms Barbour described Veda's role as "reactive" not proactive, that is to say, Veda becomes active only after a complaint has been made. Similarly, Mr Janssens said that the extent of Veda's pre-reporting role related to: the training of subscribers; the provision of the Guide to them on the internet; the terms of the subscription agreement that they enter into with Veda; and some face to face discussion between them and staff of Veda. He explained that if it came to the notice of Veda staff that a bank or other credit provider was not abiding by the conditions, the staff would follow that up to see if there was a flaw in the particular subscriber's processes or systems. The applicants, however, contend that Veda is liable independently of any such awareness and independently of the making of any complaint relating to the listing of a default. 151 Veda relies on a series of authorities that were concerned with internet service providers: Bunt v Tilley [2006] 3 All ER 336; Godfrey v Demon Internet Ltd [2001] QB 201; Cubby, Inc v CompuServe Inc 776 F. Supp. 135 (1991); Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports ¶81-127. 152 I do not accept Veda's submission for reasons which can be stated briefly. Veda knew that particulars of defaults were being listed in its database and were being included in credit reports in terms that Veda had devised and promoted to its subscribers. While Veda did not know that the matter complained of in any particular case was being listed and was later included in a credit report, it knew that matter of that kind was constantly being entered into its database by listing credit providers and supplied from the database in credit reports to enquiring credit providers. The very purpose of the database was to record information of the kind referred to in the Guide. The Guide invited subscribers to enter such types of default as "Payment Default", "Clearout (Watched)", "Dishonoured Cheque", "Judgment Debt Outstanding", "Repossession Loss (after sale)" and "Scheme of Arrangement". Accompanied by their meanings given in the Guide, the terms told against the individual's being a good credit risk. 153 Veda invited its subscribers to list and to extract matters of precisely the kind of which the applicants complain, and Veda acquiesced in their doing so. By its conduct it published to enquiring subscribers such information as they extracted from the database. It "published" that information for the purposes of the defamation claim. In reaching this conclusion I have not found it necessary to embark on a consideration of the question of whether the listed defaults were in fact defamatory.

[22]

(b) Publication to whom? 154 As noted earlier, Mr Champion's Annexure sets out his analysis of the means by which various credit providers to whom the applicants applied for credit accessed the database. As can be seen, the vast majority were "System-to-System". This is consistent with the evidence of Mr Patsan who estimated that about 90% of enquiries of the database were System-to-System. He said that the banks and large corporations would make thousands of enquiries a day whereas hundreds of small finance companies or small businesses offering commercial credit would access the database only, say, once a week. Numerically only 10% of enquiring credit providers, in Mr Patsan's estimation, were responsible for well over 90% of all System-to-System enquiries. 155 The applicants concede that in their defamation claims they must prove that the relevant credit report was read by an individual, ie, that it reached a human mind, at the office of the enquiring credit provider. Where Veda's database was accessed System-to-System, the applicants ask me to infer from evidence given by themselves and documents produced by enquiring credit providers on subpoena, that some individual within the enquiring credit provider's office read the particulars of the default. 156 Veda, on the other hand, submits that it is only in the cases marked "Operator Requested" in Mr Champion's Annexure that there was publication to an individual. In these cases, Mr Champion said that access "would normally involve the full credit information file being displayed on the screen and able to be viewed by the operator". In their submissions the applicants accept that in a case where the enquiring credit provider's operator looked only at the "file summary" [original emphasis], he or she would see only the word "default" [original emphasis]. The word "default" alone is not in any case the matter complained of. However, in all Operator Requested accesses, I infer that the full credit information file was displayed in the absence of evidence to the contrary. 157 The only accesses that were "Operator Requested" in accordance with Mr Champion's Annexure are the following: Dale 19.6.2003 S. E. Rentals Pty Ltd (Veda submits part statute-barred) Fisher 10.12.2003 AAPT Ltd Marker 1.3.2003 Loans by Phone Marker 16.5.2003 Radio Rentals Tamworth Marker 17.9.2003 Loans by Phone Marker 21.9.2004 Heritage B/S Infocentre Qld Marker 14.10.2004 Flying Horse Credit Union (Veda submits part statute-barred) Marker 29.10.2004 Flying Horse CU (Veda submits statute-barred) Marker 30.12.2004 Flying Horse CU Shields 19.8.2002 Cumberland Newspapers NSW Shields 28.4.2005 CMS Asset Solutions Shields 17.5.2005 QPF Finance Shields 19.5.2005 Technology Leasing Ltd NSW Strange 16.3.2005 Bill Rescue (Veda submits part statute-barred) 158 Some of the applicants gave evidence that they were told by someone, such as an officer of an enquiring credit provider, or a broker who had applied for credit on their behalf, in substance, that their application was refused because of an adverse listing in their credit information file maintained by Veda. Veda objected to that evidence. I admitted it, subject to relevance, only as evidence of the fact of the conversations having taken place and of the communication of a refusal, and not as evidence of the facts asserted in the conversation as to the credit provider's reason for refusal: see Evidence Act 1995 (Cth) s 59(1). Senior counsel for the applicants also made it clear that he was relying upon such conversations as evidence only of the making of the applications for credit and of their being declined. 159 The objection, my ruling and senior counsel's acknowledgment were not necessarily repeated every time evidence of the kind mentioned was led, but they were understood to apply in each case. In the accounts of the individual cases given below, I shall refer to the objection, the ruling and the acknowledgment compendiously as the "Hearsay Ruling". 160 I turn now to the nine individual proceedings. In each case there was admitted into evidence an ICCR relating to the particular applicant obtained from the Veda database by his or her authorised agent, DR Capital. 161 In each case, the matter complained of, as pleaded in Schedule A or Schedule B, as the case may be, to the TFASC, accorded verbatim with the ICCR. Accordingly, the various accounts I give below of the matters complained of in the Schedules are also accounts of information recorded in the credit information files concerning the respective applicants.

[23]

(1) Adams 162 Ms Adams's TFASC had only one Schedule, Schedule A. Schedule A reflected a "Consumer Default" in the ICCR relating to Ms Adams. This was that Ms Adams and a co-borrower had entered into a loan contract with "Trendwest South Pacific Fin" (Trendwest) and had made a "Payment Default". Trendwest had recorded this in her credit information file on 30 June 2004. The "Original Amount" was $12,733.00 which was paid by 1 October 2004. The evidence reveals the names "Trendwest Resorts South Pacific Ltd" and "Trendwest South Pacific Finance Pty Ltd". I will use "Trendwest" to refer to either one and to both companies. Trendwest was Australia's largest time share provider. Its business was that of selling holiday credits at or arising out of promotional seminars. 163 The two pleaded publications are as follows: (a) 21 March 2005 ANZ Banking Group PFS OP Sand Tech (ANZ) (b) 4 May 2005 Macquarie Securitized Lending (Macquarie). Both are, of course, after 1 October 2004, and a person reading the full credit information file on either of those dates would have read that Trendwest had been paid by that date. 164 According to Mr Champion's Annexure, both ANZ and Macquarie accessed Ms Adams's credit information by the System-to-System method. Accordingly, publication of the matter complained of to a human mind is not proved unless there is other evidence of it. 165 In her oral evidence Ms Adams said that the ANZ entry of 21 March 2005 represented an application that she made to the ANZ Bank at Coolum for a loan of $10,000 to $15,000 for home renovations. She already had a loan or mortgage to the ANZ Bank. She said that someone from ANZ Bank, Coolum Branch, whose name she could not remember, advised her by telephone that her application was unsuccessful. She was not given a reason. 166 Ms Adams said in her affidavit that subsequently she applied over the telephone to ANZ for finance and Ms Melissa Stroller of ANZ said to her words to the following effect: Are you aware that there is a default listed by Trendwest on your credit report and also there seems to be issues with late payment. It is unclear whether this application was a resumption or continuation of the application of 21 March 2005, or an unrelated application. Ms Adams submits that because there was no additional credit enquiry or application recorded by ANZ, this suggests that the information Ms Stroller gave Ms Adams was information which had been manually recorded into the ANZ system or documentation after Ms Adams made her enquiry to ANZ on 21 March 2005, implying that this must have been read. Veda submits that there is no basis for drawing such an inference. The ICCR in evidence was dated 2 June 2005, and it is unclear when the alleged conversation occurred - indeed, it might have been after that date. Be this as it may, the Hearsay Ruling applies. If Ms Adams wished to prove that Ms Stroller read the default as listed, she should have called Ms Stroller as a witness. 167 In relation to Ms Adams's application to Macquarie, Ms Adams gave no admitted evidence in her affidavit. In oral evidence, she said that she thought that her broker, Stephen Andrews, said that an application that he had made on her behalf had proved unsuccessful because "there was a default on [her] credit" with Trendwest. Assuming that Ms Adams's evidence related to the Macquarie application, the Hearsay Ruling applies. Indeed, Ms Adams's testimony in relation to Macquarie is second-hand hearsay. 168 A difficulty has arisen. Senior counsel for Veda said: We accept that publication is likely to be found in relation to some of the publications. For example, where there is a copy of the credit report in the subpoenaed party's file. Senior counsel want to say, however, that in all cases of System-to-System access, there is "clearly no publication". 169 In fact Macquarie produced documents on subpoena relating to Ms Adams. These included an ICCR dated 4 May 2005 showing the Trendwest default and a copy of a letter dated the next day, 5 May 2005, from Macquarie to Ms Adams advising her that her application had been declined as it did not meet Macquarie's "current credit criteria". As if this were not enough, there is also a file note dated 5 May 2005 linking the ICCR and the rejection letter by referring to the Trendwest default and recording an officer's recommendation of "Decline". 170 The inference seems irresistible that the officer read the listed default. The problem is that neither party referred to this particular evidence in their submissions. If Ms Adams's defamation claim were to go further, I would have given the parties the opportunity to make submissions in relation to this evidence. 171 In the result, but subject always to what is said in the preceding paragraph, there would be no admissible evidence before the Court that the matter complained of by Ms Adams in Schedule A to her TFASC was published to any human mind, and for this reason alone her claim in defamation could not succeed.

[24]

(2) Dale 172 I summarised Mr Dale's TFASC at [82]-[106] above. The relevant adverse entry was a "Commercial Default" entered by Bartercard on 20 March 2000, "Clearout (Watched)". The entry recorded Bartercard as having been paid on or by 20 June 2003. The first six enquiries involved in the publications pleaded in Mr Dale's TFASC were dated from 19 October 2000 to 19 June 2003 and therefore pre-dated Veda's record of payment, whereas the last two enquiries post-dated this record. Mr Champion's Annexure shows that all except two of the accesses were System-to-System. The exceptions are Direct Mortgage Solutions on 19 October 2000 which Mr Champion classified "No Record of Access Found", and SE Rentals Pty Ltd (SE Rentals) on 19 June 2003 which he designated "Operator Requested". 173 As noted at [146], in his affidavit Mr Champion explained why the listing by Bartercard on 20 March 2000 would not have been disclosed in response to the enquiries made by Direct Mortgage Solutions on 19 October 2000, American Express on 24 and 27 November 2000, and Citibank on 25 November 2000. 174 Even if, as Mr Dale submits, Direct Mortgage Solutions was not one of the larger organisations that have computer systems that reject applications automatically, so that the likelihood is that its access was Operator Requested, nonetheless Mr Champion's uncontradicted evidence referred to at [146] above, shows that no one at Direct Mortgage Solutions would have seen the "Clearout (Watched)" annotation. This is supported by an Individual Consumer Report and an Individual Credit Report, both printed on 19 October 2000 and produced on subpoena by Direct Mortgage Solutions, both of which show zero defaults. 175 In relation to the matter complained of in Schedule A and in light of Mr Champion's evidence, I need concern myself only with the enquiries made by S.E. Rentals on 19 June 2003 and Citibank on 2 January 2001. Mr Dale gave no (admitted) affidavit evidence concerning his applications for credit or their rejection. 176 I turn now to the enquiry of the database made by SE Rentals on 19 June 2003. Mr Dale said that he believed that the SE Rentals loan appears to have been approved. He said that he thought it related to the lease of a photocopier. Mr Patsan gave evidence of how the SE Rentals loan "would" have proceeded. He explained that SE Rentals "would be a loan broker or loan originator", and that BankWest was the credit provider. He said that SE Rentals "would" have made the enquiry of the database. 177 Documents in evidence, signed on 8 July 2003, a date shortly after Bartercard was paid, show that the applicant for the credit was Sareena Enterprises Pty Ltd (Sareena) and that Mr Dale was a guarantor. Mr Dale signed on behalf of Sareena (as a director) and also as guarantor. The documents show that the finance was in respect of the leasing by Sareena of a Minolta CF 3102 colour printer and an electronic guillotine from Bank of Western Australia Ltd (BankWest) as owner. Mr Patsan speculated as to steps that BankWest "would" have followed. For example, he suggested that the high interest charged by BankWest to Mr Dale could have been attributable to the "Clearout (Watched)" notification. But he also said "I'm just assuming from here", apparently in reference to documents shown to him in relation to a loan application made to SE Rentals. 178 I do not give any weight to any of Mr Patsan's evidence of what would have happened within SE Rentals or BankWest. We simply do not know the processes followed by them in relation to this particular application because no one from them was called. 179 In oral evidence Mr Dale said that he could not say exactly how he found out about the Bartercard adverse listing but thought that "the salesmen" of photocopiers said to him: look, you know, if we can sort this out we might be able to push it through and I've gone and checked it out so that's when I became aware of it and I had to seek some explanation of what a clearout meant because I didn't understand it. It may be that some unidentified salesman or salesmen of photocopiers read the "Clearout (Watched)" listing but it is not proved that he was or they were an employee or employees of SE Rentals (or of BankWest). Additionally, it is unclear exactly what Mr Dale was told - he said that he made further investigations or "checked it out." In any event, Mr Dale's evidence is hearsay as evidence of the reading by the salesman or salesmen. I should make it clear that I accept Mr Dale's testimony that it was in the course of the SE Rentals transaction that he learnt of the Bartercard listing and that he then promptly paid out Bartercard. The SE Rentals enquiry was made on 19 June 2003 and he paid Bartercard the outstanding amount on or by 20 June 2003. 180 Notwithstanding the above, SE Rentals was an Operator Requested enquiry, and Mr Champion stated in his affidavit that in such a case "normally" the full credit file is displayed on the enquiring credit provider's screen. I infer that there was a reading of the full credit information file by an operator at SE Rentals, who read the "Clearout (Watched)" listing by Bartercard. 181 Mr Dale made no submission on the Citibank Limited enquiry of 2 January 2001, beyond stating that Mr Champion's annexure stated "System-to-System", and gave no oral evidence directed to showing that the "Clearout (Watched)" listing had been read at Citibank. 182 I turn now to the matter complained of in Schedule B that was allegedly published to "Optus Commun Aust NSW" on 24 June 2003 and to "CBFC Rentals Pty Limited" on 10 November 2003. According to Mr Champion's Annexure, both accesses were System-to-System. Mr Dale said that he applied to Optus "to get a phone and pay it off over 24 months" and that he applied to CBFC in connection with the lease of a car. Beyond saying that the Optus application was declined and the CBFC application was successful, Mr Dale's evidence did not advance his case on the question of publication to a human mind. Indeed, in relation to the Optus application, he stated that he was not given a reason for the rejection of his application. Mr Dale made no submissions on the CBFC enquiry. 183 In the result, I find that the only alleged publication which was a communication to a human mind in an enquiring credit provider's office was that relating to SE Rentals. Otherwise, Mr Dale's claim in defamation cannot succeed.

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187 According to Mr Champion's Annexure, all except one of the accesses in Mr Fisher's case were System-to-System. The exception was the access by AAPT Ltd on 10 December 2003 which was Operator Requested. 188 Mr Fisher did not give evidence and Mr Symes's affidavit relating to him was not read. There is therefore no evidence other than documentary evidence relating to applications for credit made by Mr Fisher. 189 Pursuant to subpoena, Optus produced a series of computer screen printouts. They were all headed "Consumer Application 8986-FISHER EDDIE Mr (Declined) 107". It is apparent from the screen printouts that this application consisted of a vertical menu on the left-hand side and a main form area on the right-hand side. A series of tabbed controls, or tabs, appeared across the top of the main form area. In its submission, Veda referred to these tabs as "subject bars." They had the following headings: "General", "Personal", "Address", ""Employment", ""Action Log", "Bureau File" and "Notes". Optus produced computer screen printouts of the information appearing under each tab. 190 Two text-boxes appear under the "Bureau File" tab. The first is headed "Categories", and the second is headed "Category Details". Each has a vertical scroll-bar on the right hand side. The "Category" text box contains a list of items relating to the applicant, including among others "Summary", "Name", "Personal", "Address", "Employment" and "Default". Selecting one of these items brings up corresponding information in the "Category Details" box. Optus did not produce a printout of the information appearing in the Category Details box when the item "Default" is selected. Relevantly, however, Optus produced two screen printouts of the Category Details for the "Summary" item. The first of these lists "1 unpaid default(s)" and "1 unpaid default(s) in last 6 month". The second shows three items in sequence: "1 total unpaid default(s)"; "2,539 dollars of total unpaid default(s)"; and "24 month(s) since last unpaid default". I infer that what appeared on the computer screen referred to the entry in the database on 15 September 2001 by St George Bank which showed an original amount of $2,539. 191 On the question whether I should infer that someone at Optus read the screen, Veda submits that the page 36 screen (that is, the screen printout at page 36 of the exhibit) also shows that the software produced a final decision" of "declined", and submits on this basis (para 43): These printouts confirm the access was automated as stated by Adam Champion. It appears that the information quoted is read by clicking on a subject bar on the screen, so it is not clear that anyone at the time actually read the screens which have now been printed out for the purpose of producing documents in answer to a subpoena. 192 The particular tab that would have had to be clicked on to expose the default was marked "Bureau File" but Mr Champion's uncontroverted evidence is that System-to-System access did not necessitate a reading by any human being of the data obtained by the credit provider's computer from Veda's database. 193 In the absence of any witness from Optus, I do not infer that some person there read the "Clearout (Watched)" listing in relation to Mr Fisher; or even the information listed on Optus's database as to Mr Fisher's defaults. 194 In the result, apart from the alleged publication of the matter complained of in Schedule A to AAPT Ltd on 10 December 2003, I am not satisfied that either the matter complained of in Schedule A or the matter complained of in Schedule B was published to any human mind at the office of any of the enquiring credit providers. I infer that the material complained of in Schedule A was read by some employee of AAPT Ltd as part of the full credit information file displayed on the computer screen there, on or about 10 December 2003.

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(4) Marker 195 Mr Marker's TFASC has both Schedules A and B. Schedule A refers to a "Consumer Default", being a "Payment Default" listed on 19 December 2002. The "Original Amount" is $186.00 and the "Original Subscriber" is "AAPT Credit". The "Latest Amount" (as at 29 July 2004) is $166.00 and the "Latest Subscriber" is "AAPT Ltd". 196 Schedule B is the same as Schedule A except for a notation of "Paid" as at a Status Date of 30 September 2004. 197 Mr Marker pleads twenty six publications of which twelve relate to Schedule A and fourteen to Schedule B. Mr Champion's Annexure omits Schedule A's Ford Credit Australia NSW of 12 April 2003. This was added to the pleading after Mr Champion made his affidavit, as is acknowledged in Mr Marker's submissions. 198 Mr Champion's Annexure lists eighteen accesses as System-to-System and seven as Operator Requested. The publications that Mr Marker submits I should find as established by the evidence and Mr Champion's classification of them are as follows: Schedule A 1 March 2003 Loans by Phone - Operator Requested 16 May 2003 Radio Rentals Tamworth - Operator Requested 17 September 2003 Loans by Phone - Operator Requested 21 September 2004 Heritage B/S Infocentre Queensland - Operator Requested Schedule B 14 October 2004 Flying Horse Credit Union - Operator Requested 29 October 2004 Flying Horse Credit Union - Operator Requested 10 December 2004 Capital Motor Dealer NSW - System-to-System 10 December 2004 Toyota Financial Services - System-to-System 30 December 2004 Flying Horse Credit Union - Operator Requested 10 January 2005 Citifinancial - System-to-System 199 The only affidavit evidence of Mr Marker relevant to publication was the statement in para 26 of his affidavit that on or around June 2004, during one of his unsuccessful applications for finance, he was told that he had a default with AAPT. The Hearsay Ruling applies. Moreover, the ICCR in Mr Marker's case does not disclose any enquiry of the database in June 2004. The enquiries on either side of June 2004 are enquiries made in April and September 2004. 200 In relation to some of the alleged publications, Mr Marker had no recollection, and in relation to others he said only that his application for credit was granted or refused. Asked if he could remember the Loans by Phone application of 17 September 2003, Mr Marker replied: I think the Loans by Phone were, from memory, they come around and have a look at your phone and all that sort of stuff, see, in case you don't pay them they take it and I don't think I went ahead with that, no. 201 Asked about the Loans by Phone application of 1 March 2003, Mr Marker replied: I know what they're about. That's the only way that I do remember it. I don't remember the - you know - until I see it, the date and what I actually went for the loan for. 202 In relation to the application to Flying Horse Credit Union on 14 October 2004 Mr Marker said that he obtained the loan sought. He said that he had a conversation with "Joanne" (he could not remember her second name), the manager of the Flying Horse Credit Union at St Kilda Road Melbourne. He said: I explained and she said that any defaults or anything on there, and I said, Yes, and I showed her what I was doing through DR Capital and Gerard Malouf and that was the only source that I could get that loan at the time because the credit file didn't rectify who I was. This rather confused evidence does not assist Mr Marker to prove that Veda published the matter complained of to Joanne. Apparently Mr Marker did so himself. 203 Mr Marker also gave evidence touching on his applications to Radio Rentals, Heritage BS Info Centre, Flying Horse Credit Union on 29 October 2004, Flying Horse Credit Union on 30 December 2004 and Capital Motor Dealer, Toyota Financial Services and Citi Finance, of which I need discuss only the last three. Mr Marker's evidence in relation to the others does not advance his case on communication to an employee within the credit provider's office. 204 I turn next to the documents that various credit providers produced on subpoena. Mr Marker served a subpoena on Capital Finance Australia Ltd trading as "Capital Motor Dealer NSW". This related to the recorded access by Capital Motor Dealer NSW on 10 December 2004. In response, the addressee produced an internal credit report relating to Mr Marker. It was not entirely in the form of the ICCR that DR Capital obtained relating to Mr Marker, however substantial parts of it were identical to the comparable parts of the ICCR in evidence. I infer that those parts of the internal credit report came from Veda's database. 205 The ICCR in evidence and the internal credit report produced on subpoena both show that "Capital Motor Dealer NSW" accessed the database on 10 December 2004 in connection with a proposed "Chattel Mortgage" for $10,292. The internal credit report sets out the Consumer Default listed by AAPT relating to Mr Marker in the same form as in the ICCR. Importantly, however, it does not record the notation on 30 September 2004 stating "Paid". It also sets out particulars of "Consumer Credit Applications" in the same form as in the ICCR, the latest one in the internal credit report being that made by Mr Marker to Capital Motor Dealer NSW itself on 10 December 2004. 206 The internal credit report contained under the heading "Bureau Score Result" the following: Bureau Score Result ------------------- Relative Risk: 99+ times worse than Credit Advantage average. Scorecard: Value Added Consumer Recommended Action: This application has been scored using the Value Added Consumer bureau scorecard and is compared with the Credit Advantage sub-population. The odds of recording an adverse with Credit Advantage within 12-24 months of a Credit Advantage enquiry is 19:1. Credit Advantage's scores are based on samples of historical information in Credit Advantage's database. Credit Advantage uses reasonable efforts to ensure that samples are statistically valid, and that proven methods are used to develop scores. However, a score is only additional information on which to base a decision. A score is not a replacement for any other information, or for your decision making policies and procedures. Accordingly, Credit Advantage does not accept liability for any lending decision you make using a score. Bureau Score Details -------------------- Bureau Scorecards utilise all available data to calculate a risk estimate. This is based on analysis of the association of all data with future adverse outcomes. The key contributing facts to this score are: Impact on Risk Default recorded Greatly Increases Individual shopping pattern Greatly Increases Enquiries from particular member group Greatly Increases 207 The documents produced by Capital Motors also include a file note, apparently entered manually, which states "Declined - slow credit with TFA, unpaid default". The use of the word "unpaid" confirms that what was read did not include the "Paid" notation referred to at [196] above. 208 I infer that in December 2004 an employee of Capital Motor Dealer NSW read the ICCR Consumer Default listing that had been effected by AAPT Credit on 19 December 2002 for $186 and updated on 29 July 2004 for $166. I do not infer that any employee read the notation of "Paid" that had been entered on 30 September 2004. Therefore it is not established that any employee of Capital Motor Dealer read the matter complained of in Schedule B. 209 The ICCR in evidence shows that on 10 December 2004 Toyota Financial Services accessed the database, entering into it the fact that Mr Marker had applied for credit of $17,277 in respect of an "Account Type" called "Terms". Mr Champion classified this access as System-to-System. 210 Mr Marker served a subpoena on "Toyota Financial Services" relating to its enquiry of his credit information file. A series of computer screen printouts was produced in response. Of particular relevance are the printouts of a window entitled "Bureau Data". Within this window, one of the printouts sets out the AAPT "Consumer Default" in the same terms as in the ICCR. Further screen printouts relating to this window also set out "Consumer Credit Applications", that is to say, accesses or enquiries made by credit providers to which Mr Marker had applied for credit. These entries also accorded with those in the ICCR. A separate entry in a different window under a heading "Application Bureau Results" showed Mr Marker as having one unpaid default. 211 Veda submits: The screens are headed with boxes reporting "result status" as "application declined" which made the decisioning result available to the operator without the need to enquire further. I am not persuaded by this submission. I have no doubt that an employee of Toyota Financial Services read the particulars of the AAPT "Payment Default" on the screen. On one of the screen printouts there is a box with a note typed into it by somebody in relation to the default "To AAPT original date 19/12/02 for $186, latest amount is $166 as of 29/7/04". Clearly, an employee of Toyota Financial Services typed this from Mr Marker's credit information file. 212 Mr Marker served a subpoena on "City Group Pty Ltd" trading as "Citi Financial Services". This related to the access on 10 January 2005 which Mr Champion classified as System-to-System. The addressee produced, relevantly, a single page which contained a summary of the "Original" and "Latest" AAPT listed default of $186 and $166 respectively. The single page is dated 11 January 2005. There is handwriting on it stating "CM states paid off. Was double billed". I infer that "CM" means "customer" or otherwise refers to Mr Marker. I also infer from this note that an employee of Citi Financial in January 2005 read the AAPT listed Consumer Default in the data extracted by Citi Financial from Mr Marker's credit information file. 213 I also infer in the case of all other Operator Requested accesses that some employee of the enquiring credit provider read the matter complained of in Schedule A or Schedule B, as the case may be, by viewing it on the computer screen. 214 In the result, it is proved that the matters complained of in Schedules A and B respectively were communicated to human minds at all of the respective enquiring credit providers as pleaded, with the exception of the alleged publication of the matter complained of in Schedule B to Capital Motor Dealer on 10 December 2004.

[29]

(5) McGary 215 Mr McGary's TFASC has only Annexure A. It particularises a "Repossession Loss (After sale of the item)" entered by "GECOMM DF QLD DF 1040" on 30 July 2004. The amount specified was $16,582. It gives a "Status" of "Settled" as at a "Status Date" of 1 October 2004. Schedule A lists as the original subscriber GECOMM DF QLD DF 1040; but as the latest subscribed GECOMM DJ QLD DF 1040. From the ICCR, I think that the former is correct. I will refer to the listing credit provider as "GE". Although Schedule A to the TFASC is headed "Consumer Default", in the ICCR in evidence, the default was recorded as a "Commercial Default". 216 Mr McGary's TFASC pleads six publications of the matters complained of in Schedule A as follows: (a) 10 May 2005 to the National Australia Bank; (b) 10 May 2005 to the Commonwealth Bank (c) 16 May 2005 to Westpac Card Services (d) 30 May 2005 to the Bank of Queensland; (e) 4 March 2005 to Balmain NB Melbourne (f) 26 April 2005 to Toyota Financial Services 217 Mr Champion's Annexure refers only to the first four of these, no doubt because the last two were added by way of amendment to the pleading after Mr Champion had performed his analysis. According to Mr Champion's Annexure, the first four were all System-to-System accesses. 218 Mr McGary makes submissions in support of only the first four publications and I will ignore the last two. There is no admitted affidavit evidence of Mr McGary relevant to the present issue. 219 DR Capital obtained an ICCR relating to Mr McGary on 6 September 2005 which is in evidence. DR Capital had previously obtained an ICCR relating to Mr McGary on 6 April 2005. Under the heading "Consumer Credit Applications", the ICCR recorded that on 10 May 2005 "NAB New Business" (NAB) entered the fact that Mr McGary was applying for credit under a "Continuing Credit Contract" to the extent of $5,000. In oral evidence Mr McGary said that this related to a written application he made for a credit card. There is in evidence a letter dated 11 May 2005 from NAB to Mr McGary advising him that his then recent application for a credit card had been declined and that the decision had been based wholly or in part on the information contained in a report from Baycorp Advantage Business Information Services. The letter advised how Mr McGary might follow up the matter with Baycorp if he wished to obtain access to his credit information file. 220 Having regard to Mr Champion's evidence in relation to the nature of System-to-System access, I do not infer that any human being at NAB read the particulars of the recorded Consumer Default. The evidence is that it is common for banks and other large organisations to use System-to-System access, according to which their computer system decides the fate of the application for credit, as a result of which a letter is generated to the applicant advising him or her of the result. 221 No relevant evidence was led in relation to the other alleged publications. I do not accept the applicant's submission that an approval indicates that a credit information file was viewed. An "Accept" result like a "Decline" result was automated in the case of banks and large organisations. 222 The evidence does not establish that the data obtained by any of the four enquiring credit providers relating to Mr McGary was communicated to a human mind. Mr McGary's claim in defamation therefore cannot succeed.

[30]

(6) Shields 223 Ms Shields's TFASC has Schedules A and B. Schedule A is wrongly headed "Consumer Defaults". I say "wrongly" because in the ICCRs in evidence the default is listed as a "Commercial Default". DR Capital obtained an ICCR (the "primary ICCR" - see below for other ICCRs in evidence relating to Ms Shields under the name "Dianne Malloch") on 31 August 2005, having earlier obtained one on 17 March 2005. 224 The primary ICCR, and therefore Schedule A, particularised the default as a "Payment Default" recorded by FORD CREDIT NSW on 9 March 2001. The amount shown was $16,598. The "Account Type" was shown as "Leasing" and the "Association Code" as "Guarantor". 225 Schedule B is the same as Schedule A but for the addition of the details: Status: Settled Status Date: 19/07/2004 The Guide defines the "Default Status Type" "Settled" as referring to a "defaulted account" where a "lesser amount has been agreed upon by both parties to be paid as full and final payment". 226 The TFASC gives the following particulars of publication of the matter complained of in Schedule A: (a) 24 December 2001 - National Australia Bank; (b) 22 January 2002 - St George Bank Mort Orig Parramatta; (c) 19 August 2002 - Cumberland Newspapers NSW; (d) 7 April 2004 - GE Capital; (e) 13 April 2004 - GE Capital. The primary ICCR showed that each of these was a consumer credit enquiry except that of Cumberland Newspapers, which was a commercial credit enquiry. 227 The TFASC gives the following particulars of publication of the matter complained of in Schedule B: (a) 28 April 2005 CMS Asset Solutions; (b) 17 May 2005 QPF Finance; (c) 19 May 2005 Technology Leasing Ltd NSW The primary ICCR showed that each of these was a commercial credit enquiry. 228 According to Mr Champion's Annexure, there were two accesses to the database by Technology Leasing Ltd NSW on 19 May 2005, one System-to-System and the other Operator Requested. According to Mr Champion's Annexure, of the remaining accesses, those by Cumberland Newspapers NSW, CMS Asset Solutions and QPF Finance were Operator Requested, whereas those by National Australia Bank, St George Bank and GE Capital (on 7 and 13 April 2004) were System-to-System. 229 There is no admitted affidavit evidence of Ms Shields relevant to the reading of the Payment Default listing by any employee of any of the credit providers. 230 In relation to the National Australia Bank, the primary ICCR showed that on 24 December 2001 National Australia Bank accessed the database in connection with an application for credit on a real estate mortgage to the extent of $200,000. In her oral evidence Ms Shields explained that she had borrowed money from a solicitor over a period of time and that the solicitor had put her into contact with a man named "Richard" at Eagle Finance who assisted her to make an application to National Australia Bank. She said that Richard told her that her application had been refused because of a default notified by Ford Credit. The Hearsay Ruling applies. 231 The primary ICCR showed that on 22 January 2002 St George Bank accessed the database in connection with an application by Ms Shields for credit to the extent of $300,000 on a real estate mortgage. Ms Shields gave evidence that Richard of Eagle Finance made the application on her behalf and told her that it was declined "because of a default by Ford". The Hearsay Ruling applies. 232 In relation to GE Capital, the primary ICCR showed an access on 7 April 2004 and a second access six days later on 13 April 2004, both in respect of an application for finance of $203,000 on the security of a real estate mortgage. 233 Ms Shields said that she applied to GE Capital through a finance broker named Paul Mylotis to whom she was recommended by her accountant. She said that the earlier application was for a refinancing of the mortgage over her house as the solicitor had not yet been repaid. She said that Mr Mylotis told her that because of the Ford Credit default, she would have to pay a certain, higher, interest rate. The Hearsay Ruling applies. As evidence of the reason that moved GE Capital and of GE Capital's imposition of a certain interest rate, Ms Shields's evidence of what Mr Mylotis told her was second-hand hearsay. She said that a couple of weeks later GE Capital approved her application. 234 In relation to the GE Capital application of 13 April 2004, Ms Shields said that that application was for a loan to enable her to acquire equipment for her business, and that she applied for the finance by way of her "home loan". She said that this application, also arranged by Mr Mylotis, was also approved. Ms Shields said that she used the funds obtained from GE Capital to pay out her indebtedness to Ford Credit. 235 Ms Shields submits that because her application to GE Capital was approved, I should infer that someone at GE Capital read her credit information file including the Payment Default that had been listed by Ford Credit. Ms Shields said that in fact she used the funds provided by GE Capital (I assume the $203,000 for which she said she applied), inter alia, to pay out the sum (approximately $16,598) that she owed to Ford Credit. But did she inform GE Capital this was a purpose of her borrowing? If she had done so, this would have interested GE Capital in ascertaining if Ford Credit had listed a default on her credit information file. The admitted evidence does not reveal an answer to the question. Apparently her disclosed purpose was simply to pay off the loan from the solicitor. 236 I do not infer, from the mere fact of approval of the loan, that someone at GE Capital read the particulars of the default listed by Ford Credit. As in the case of all applicants, Ms Shields did not call any witness from any credit provider. 237 The primary ICCR showed that on 19 August 2002 Cumberland Newspapers made a "Commercial Credit Enquiry" of the database in connection with a 30 day account. It will be recalled that this was an "Operator Requested" access. Ms Shields testified that she wanted to do some advertising in the local newspaper of which, apparently, Cumberland Newspapers was the publisher, and it insisted that she pay up front. She said that she was told that the reason was her "Credit Record" or "Credit History". The Hearsay Ruling applies. Cumberland Newspapers was subpoenaed but did not produce a credit report. 238 The primary ICCR also recorded that on 28 April 2005 "CMS Asset Solutions" accessed the database in connection with an application by Ms Shields for credit relating to "Leasing". In oral evidence Ms Shields said that the application to CMS Asset Solutions was for the financing or leasing of a piece of equipment for her business. She said that her application was refused and that someone called "Jim" at CMS Asset Solutions told her that it was refused "because of Baycorp". The Hearsay Ruling applies. 239 The primary ICCR showed that on 17 May 2005 "QPF Finance" accessed the database in connection with an application for commercial credit in connection with a lease. The "Association Code" is shown as "Guarantor". In oral evidence Ms Shields again said that she was looked after by "Jim" who told her that her application to QPF Finance failed "because of Baycorp". The Hearsay Ruling applies. 240 Subpoenas to produce documents were issued on behalf of Ms Shields to both CMS Solutions and QPF Finance. In cross examination, Ms Shields was confronted with documentary evidence that both CMS Asset Solutions and QPF Finance had in fact approved of her applications to them, contrary to evidence she gave in her examination in chief. 241 The documents produced by CMS Asset Solutions also suggest that Ms Shields's application to CMS Asset Solutions was not made through a "Jim" at CMS, but through a broker, "Patrick Graves" of TCBS Finance Pty Ltd. Mr Graves, writing on behalf of Ms Shields to Tim Malafouris of CMS Asset Solutions, informed Mr Malafouris: Please be aware that firstly upon a CRAA check default may be noted upon explanation has been attached. In fact, at that time (28 April 2005) Ms Shields had a default listed by "RSL Com", although it is not shown on all of the ICCRs in evidence (see below) and publication of it is not the subject of the complaint made by Ms Shields in her present proceeding. 242 There are in evidence several ICCRs relating to Ms Shields, some in the name of Dianne Malloch. Mr Champion's affidavit mentions this and the fact that the two credit information files contained cross-references to one another. In a Malloch ICCR of 17 May 2005 produced by QPF Finance in response to a subpoena, the "RSL Com" default is mentioned, but it is not mentioned in the Shields ICCR of 17 May 2005 or in the primary ICCR (of 31 August 2005). 243 CMS Asset Solutions produced no credit report. 244 A handwritten working sheet dated 23 May 2005 was produced on subpoena by QPF Finance. That was six days after its accessing of Ms Shield's credit information file on 17 May 2005. It related to an application by Baby Boomers Face & Body Clinic Pty Ltd and showed "Dianne Maureen Malloch" against "Directors/Guarantors". The sheet noted that there were three defaults that were "Settled/Paid (explanation attached)". The only other documents produced by QPF Finance were a number of ICCRs and Company Reports, all sourced from Veda. These are a Company Report relating to Baby Boomers Face & Body Clinic Pty Ltd and two ICCRs relating to Ms Shields (one in the name of Malloch) dated 17 May 2005 and another such Company Report and two ICCRs dated 3 March 2006. The three dated 3 March 2006 can be disregarded since they post-date the handwritten sheet and therefore could not have contained the "explanation attached". 245 The Company Report dated 17 May 2005 shows no defaults. The Malloch ICCR dated 17 May 2005 shows one default and the Shields ICCR dated 17 May 2005 shows two defaults - a total of three defaults. The Ford Credit default is one of the two listed on the Shields ICCR of 17 May 2005. I infer that the Company Report and the two ICCRs dated 17 May 2005 contained the "explanation attached" referred to in the handwritten working sheet dated 23 May 2005, and that the writer of the working sheet read the details of the listed Ford Credit default. 246 As it turns out, since the access by QPF Finance was Operator Requested, I would in any event have inferred that the credit information file relating to Ms Shields was viewed in full on the screen at QPF Finance. 247 Finally, the primary ICCR showed that on 19 May 2005 "Technology Leasing Ltd NSW" accessed the database in connection with an application by Ms Shields for finance for "Commercial Rental". Against "Association Code" appeared the word "Guarantor". Ms Shields gave oral evidence that that application was made by someone on her behalf and she thought that that person was "Jim". She said that the person told her that her application was "refused because of Baycorp". The Hearsay Ruling applies. 248 The result in the proceeding brought by Ms Shields is as follows: I infer that in the cases of the accesses by Cumberland Newspapers NSW, CMS Asset Solutions, QPF Finance, and one of the two accesses by Technology Leasing NSW on 19 May 2005, the matter complained of was read by an employee of the enquiring credit provider. However, in the cases of the accesses by National Australia Bank, St George Bank, GE Capital (two) and the other (one) of the two accesses by Technology Leasing Ltd on 19 May 2005, it is not proved that the access involved a reading of the details of the default listed by Ford Credit by any one at the enquiring credit provider. Accordingly, Ms Shields's claim in defamation cannot succeed in respect of the latter group.

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(7) Strange 249 Mr Strange's TFASC had both Schedules A and B. Schedule A quoted a Consumer Default. This was a "Clearout (Watched)" listing made by "CITY FIN LCS BRWNPLNS/SNYBNK" on 2 June 2003. The amount shown was $573. As at 11 February 2004 the amount shown was $445. 250 Schedule B was identical to Schedule A except for the addition of: Status: Settled Status Date: 06/04/2005 251 According to the TFASC there were four publications of the matter complained of in Schedule A, as follows: (a) 13 January 2005 - Esanda Dealership; (b) 16 March 2005 - Bill Rescue Pty Ltd; (c) 10 October 2003 - Queensland Police c/u Ltd; (d) 3 March 2005 - Loans by Phone. Mr Strange's submissions do not address (c) above and I will say no more of it. 252 There were allegedly four publications of the matter complained of in Schedule B, namely: (a) 9 May 2005 - Bill Rescue Pty Ltd; (b) 2 June 2005 - GEFCA Branch Channel; (c) 12 July 2005 - ANZ Banking GRP OPS Tech; (d) 20 July 2005 - International Acceptances. Mr Strange's written submissions do not address (a) above. 253 Mr Champion's Annexure does not address the publication to Queensland Police c/u Ltd; Loans by Phone or the Bill Rescue entry of 9 May 2005, perhaps because they were introduced by way of amendment made to the pleading after he had performed his analysis. According to Mr Champion's Annexure, all forms of access were System-to-System except that of Bill Rescue Pty Ltd on 16 March 2005, which was Operator Requested. 254 There is no admitted affidavit evidence of Mr Strange relevant to the issue of the reading of the matter complained of by any employee of any of the credit providers to whom publication was alleged. Such oral evidence as Mr Strange gave that might be said to be relevant to the issue of publication to a human mind was the subject of the Hearsay Ruling. 255 Mr Strange relies on documents produced on subpoena by Esanda Finance Corporation Ltd (Esanda). The subpoena referred to documents relevant to an application for finance made by Mr Strange in or about January 2005. No doubt that date is attributable to the date of 13 January 2005 in para (a) in Schedule A (see [251] above). One of the credit reports produced was dated 9 May 2005 and the other 23 October 2006. There is no credit report on or around 13 January 2005. Veda has suggested that the two credit reports may have been erroneously inserted among the documents produced by Esanda. They are both dated after the Esanda enquiry of 13 January 2005. There is also produced an Esanda 'Credit Application and Assessment Report' prepared on 20 April 2006. Of particular interest is a manually entered note at the bottom, dated 13 January 2005, which states that there are "4 unpaid defaults with City Finance" and a "poor credit history" - although there is no mention of a "Clearout (Watched)". 256 Mr Strange gave no oral evidence relating to the Esanda application. I am not satisfied that the material complained of in Schedule A was published to Esanda Dealership on 13 January 2005 as pleaded. I am therefore not satisfied that any one at Esanda Dealership read the "Clearout (Watched)" entry. 257 Bill Rescue Pty Ltd did not produce any credit report for 16 March 2005, although it produced other documents which were not admitted into evidence. According to Mr Champion's Annexure, however, the access to the database by Bill Rescue Pty Ltd on 16 March 2005 was Operator Requested. In the absence of evidence to the contrary, I infer that an operator at Bill Rescue Pty Ltd's office read the matter complained of on the computer screen. 258 Loans by Phone Pty Ltd produced documents in response to a wide ranging subpoena served by Mr Strange. The documents contained a handwritten note "Client applied on the 2/3/2005. This application was declined on 4/3/2005. Please find attached relevant information. Regards Natasha". Under "Credit History" the document records "Defaults: Northpower 2000 - Paid, Startover 2003 - Paying Off." I infer that the "relevant information" is a document attached headed "Baycorp Advantage Individual Credit Enquiry." Although the words "serious credit infringement" appear, the words "Clearout (Watched)" do not. 259 In relation to the first two alleged publications of the matter complained of in Schedule B, namely, those to GEFCA Branch Channel and ANZ Banking Group GRP OPS Tech, there is no documentary evidence to be considered. Both were System-to-System accesses. I am not satisfied that the matter complained of in Schedule B was read by any person in the office of either one of those enquiring credit providers. 260 In relation to the alleged publication on 20 July 2005 of the matter complained of in Schedule B to "International Acceptances", International Acceptance Pty Limited produced documents pursuant to a subpoena served on it by Mr Strange. They included a document dated 20 July 2005 headed "Consumer Report for International Acceptance interpreted with Lynx from data provided by Baycorp Advantage". This included a reference to the $445 default in question, but no notation of "Clearout (Watched)". Neither an "Australia Personal Loan Verification Form", nor a "Letter of Offer" provided by International Acceptance noted this. Having regard to Mr Champion's evidence concerning System-to-System access, I do not infer that anyone at International Acceptance Pty Limited read the entry of "Clearout (Watched)" relating to Mr Strange. 261 The only publications to a human mind that are proved in Mr Strange's case are the publications to Loans by Phone Pty Ltd on or about 3 March 2005 and Bill Rescue on or about 16 March 2005. Otherwise Mr Strange's claim in defamation cannot succeed.

[32]

(8) Taylor 262 Mr Taylor's TFASC had only one Schedule, Schedule A, which related to an Account Type of "Overdraft". Alliance Factoring was shown as the "Original Subscriber" on 27 May 2002. The "Latest Subscriber", also of 27 May 2002 was shown as "BA Collections Factoring". The Original Amount and the Latest Amount were both $795.00. The "Original Reason" stated was "Clearout watched", but the "Latest Reason" listed simply a "Clear Out." Schedule A included the following notation: Status: Paid Status Date: 08/01/2003 263 The TFASC alleged that publication took place as follows: (a) 28 November 2002 St. George BK Credit Card; (b) 14 January 2004 Telstra Consumer NSW; (c) 21 January 2004 Telstra Mobile NSW. 264 According to Mr Champion's Annexure, St George BK Credit Card NSW accessed the database on 28 November 2002, "Telstra 2" accessed it on 14 January 2004, and "Telstra 51" accessed it on 21 January 2004, in all three instances System-to-System. 265 There is no admitted affidavit evidence by Mr Taylor relevant to the reading by a person employed by a credit provider of the matter complained of. 266 In oral evidence Mr Taylor said that the entry concerning St George Bank related to an over-the-phone application for a credit card. He said that a lady at St George Bank, whose name he could not remember, told him over the telephone that his application for the credit card had been refused because he had a "default listing on [his] CRA". The Hearsay Ruling applies. 267 Similarly, Mr Taylor gave evidence that he applied on 14 January 2004 to Telstra for a home phone and on 21 January 2004 for a mobile telephone. He said in relation to the latter that he filled in an application form at the Rockdale office of Telstra where a sales representative made a telephone call and then told him that his application was declined because of a credit rating on his file. The Hearsay Ruling applies. Mr Taylor did not give any additional evidence in relation to the application on 14 January 2004. 268 In the result I am not satisfied that any person at any of the three credit providers referred to in the allegations of publication read the matter complained of in Schedule A. Accordingly, for this reason alone Mr Taylor's claim in defamation cannot succeed.

[33]

(9) Tyndall 269 Mr Tyndall's TFASC has only Schedule A. The matter complained of in it was the listing by "ALLIANCE FACTORING 8" of a "Payment Default" on 13 September 2002 in respect of an amount of $316. Schedule A included the following notation in the matter complained of: Status: Paid Status Date: 27/09/2002 This shows that the Payment Default appeared for only some 14 days without the "Paid" addition. 270 Mr Tyndall's TFASC alleges the following publications: (a) 15 November 2002 Westpac Nat Telemark Vic; (b) 12 June 2003 WPAC /Challenge/Bank Melb PL; (c) 20 April 2005 - ANZ Bankcards Aust. Vic.; (d) 20 April 2005 - Nat Aust Bank NSW; (e) 25 July 2005 Citibank Unsecured Credit In submissions Mr Tyndall did not press the pleaded publication to Citibank Unsecured Credit on 25 July 2005. 271 According to Mr Chapman's Annexure all of the remaining four accesses were System-to-System. There is no admitted affidavit evidence relevant to anyone at any of the four credit providers having read the matter complained of in Schedule A. 272 Mr Tyndall's written submissions refer, in relation to (b) above, to certain oral evidence that Mr Tyndall gave but that oral evidence related to an application related to (d) above (National Australia Bank). That evidence was no more than that his application had been declined. 273 Mr Tyndall gave oral evidence in relation to the 15 November 2002 "Westpac Nat Telemark Vic" enquiry and the 12 June 2003 "WPAC/Challenge/Bank Melb P/L" enquiry. In relation to the former he said that he applied over the telephone for a personal loan at the Personal Loans Centre of the Westpac Banking Corporation, and after being "put on hold" was told that his application had been declined due to a "credit risk" or "credit default". Mr Tyndall said that he asked the Bank's representative to reconsider but she said that there was a number on the screen that she could not override. The Hearsay Ruling applies. 274 Similarly, Mr Tyndall gave evidence that he telephoned the Westpac Personal Loans Centre on or about 12 June 2003 thinking that since some "twelve months" had passed, the adverse entry may have lost its significance. However, he said that he was again told that his application had been declined due to "credit risk" or "credit default", with a reference number that could not be overridden. Again, the Hearsay Ruling applies. 275 Mr Tyndall gave no oral evidence pertinent to the issue whether the matter complained of came to the mind of an employee at ANZ Bankcards (his written submissions merely note that the access was System-to-System). 276 In the result, I am not satisfied that the matter complained of in Schedule A was published to any employee of any of the credit providers to whom the TFASC alleges it was published. For this reason alone, Mr Tyndall's claim in defamation cannot succeed.

[35]

Qualified privilege 278 I referred to Veda's pleaded defence of qualified privilege at [116] above. The applicants submit that publication by Veda was not made on an occasion of qualified privilege. They rely on Macintosh v Dun (1908) 6 CLR 303; [1908] AC 390. Veda submits that Macintosh v Dun was wrongly decided and should not be followed. 279 In Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366 (Bashford), Gleeson CJ, Hayne and Heydon JJ said in a joint judgment that the principles to be applied in determining whether an occasion of publication was one of qualified privilege are well known. Their Honours referred to Toogood v Spyring (1834) 1 Cr M & R 181 (149 ER 1044) and Adam v Ward [1917] AC 309. They quoted (at [9]) the following oft cited statement made by Parke B in Toogood v Spyring (at 193) (ER 1049-1050): In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the well‑known limits as to verbal slander), and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorized communications, and affords a qualified defence depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits. [my emphasis] Their Honours said (at [9]) that "[r]eciprocity of duty or interest is essential", citing Adam v Ward at 334 where the following statement appears: It was not disputed, in this case on either side, that a privileged occasion is, in reference to qualified privilege, an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential. 280 Their Honours referred (at [10]) to the "very high level of abstraction and generality" in which the principles relating to qualified privilege are stated, and emphasised the need to scrutinise closely the circumstances of each case, the situation of the parties, the relations of all concerned, and the events leading up to and surrounding the publication. 281 At the times of the publications in the present cases, subs (1), (2) and (3) of s 22 of the Defamation Act were as follows: (1) Where, in respect of matter published to any person: (a) the recipient has an interest or apparent interest in having information on some subject, (b) the matter is published to the recipient in the course of giving to the recipient information on that subject, and (c) the conduct of the publisher in publishing that matter is reasonable in the circumstances, there is a defence of qualified privilege for that publication. (2) For the purposes of subsection (1), a person has an apparent interest in having information on some subject if, but only if, at the time of the publication in question, the publisher believes on reasonable grounds that that person has that interest. (3) Where matter is published for reward in circumstances in which there would be a qualified privilege under subsection (1) for the publication if it were not for reward, there is a defence of qualified privilege for that publication notwithstanding that it is for reward. 282 To the extent that publication in Queensland is relevant, Veda relies on s 16 of the Defamation Act 1889 (Qld) which provides, relevantly: (1) It is a lawful excuse for the publication of defamatory matter ............................................................................................................ (d) if the publication is made in good faith in answer to an inquiry made of the person making the publication relating to some subject as to which the person by whom or on whose behalf the inquiry is made has, or is believed, on reasonable grounds, by the person making the publication to have, an interest in knowing the truth; (e) if the publication is made in good faith for the purpose of giving information to the person to whom it is made with respect to some subject as to which that person has, or is believed, on reasonable grounds, by the person making the publication to have, such an interest in knowing the truth as to make the person's conduct in making the publication reasonable under the circumstances; ... 283 Many of the circumstances touching upon publication have already been recounted. There was in evidence a copy of Veda's standard application to become a subscriber, including the conditions of subscription. If a firm or company applying to become a subscriber was a credit provider, it was required to identify the type of credit provided and the credit terms allowed. If the applicant was not a credit provider, it was required to state its reasons for wishing to subscribe. In the present case, it was not suggested that the pleaded publications were to any entities other than credit providers. 284 The conditions of subscription were, relevantly, as follows: Conditions of subscription In making an application to become a subscriber to Veda Advantage Business Information Services Ltd (Veda Advantage) I/we acknowledge and agree to be bound by the conditions of terms and conditions of trade as set out on this application form, as varied from time to time by Veda Advantage by notice in writing to me/us. I/We acknowledge and agree: 1 To report default accounts for both business and consumer credit to Veda Advantage on a regular basis; 2 To pay the prescribed fees of Veda Advantage (including any GST payable), for enquiries made on my/our behalf and for various services applied to me/us such fees to be determined by Veda Advantage from time to time, with such payment to be made by the invoice due date and in a manner determined by Veda Advantage; 3 ... 4 To supply Veda Advantage as requested from time to time with the particulars of persons dealing with me/us in accordance with any applicable legislation and any requirements of Veda Advantage; 5 To respect the sensitive nature of the information that Veda Advantage provides and to comply with all legislation regarding the handling of that information; 6 Not to knowingly seek the disclosure from Veda Advantage of any personal information from any such credit information files kept by Veda Advantage where disclosure of such information would give rise to a contravention by Veda Advantage of the provisions of Section 18K or such other sections of the Privacy Act 1988 (as amended) as may apply; 7 That Veda Advantage obtains all information on its database from its customers or other third parties and relies on those suppliers to ensure that the information is accurate; 8 That Veda Advantage does not independently verify information supplied to it and hence does not guarantee the accuracy of any information supplied to me/us. Veda Advantage is not liable for any claim, loss or damage suffered by me/us resulting from or arising out of any information supplied by Veda Advantage; 9 That Veda Advantage excludes all liability in any course of action whatsoever for loss or damage arising out of or in connection with any decision made using information supplied by Veda Advantage, including without limitation, loss of profits and damage suffered as a result of claims by any third person; 10 To indemnify Veda Advantage in respect of all: (a) demands, claims, actions, proceedings, or suits brought against Veda Advantage, whether in law or equity; (b) liabilities of Veda Advantage; and (c) costs and expenses including legal costs and expenses (on a solicitor and own client basis) incurred by Veda Advantage arising directly or indirectly out of the use or reliance on the information supplied by or through me/us to Veda Advantage which is inaccurate for any reason including because of error or omission; 11 ... 12 To comply with all applicable legislation (including any of our obligations under the Privacy Act 1988) and all other regulatory requirements in using the services; 13 ... 14 ... 15 ... 16 ... 285 Whenever a subscriber listed a default on Veda's database, it did so pursuant to an express contractual obligation (see conditions 1 and 4 listed above). Whenever Veda supplied a credit report by permitting a subscriber to access the database, it did so pursuant to a contractual obligation implied from the terms of the subscription contract and the payment of fees by subscribers to Veda. 286 In the absence of authority constraining me, I would find that: · the enquiring credit providers had a legitimate business interest in receiving particulars of the listed defaults because that information was relevant to their assessment of the creditworthiness of an individual who was applying to them for credit; · by reason of its position as an intermediary custodian of such information received from listing credit providers, Veda had a social or moral duty to pass it on to the enquiring credit providers; · Veda also had a legal (contractual) duty to pass it on to them, but I agree with the applicants that a contract entered into by the intending publisher and recipient of defamatory matter cannot, standing alone, satisfy the element of an interest of the latter in receiving it, otherwise it would be possible for that interest to be "manufactured"; · it is in the interests of would-be borrowers, credit providers and society at large that credit providers be able to take decisions on applications for credit in an informed, speedy and efficient manner; and · it is therefore for "the common convenience and welfare of society" that particulars of the listed defaults be supplied by Veda to the enquiring credit providers. 287 Victor Edwards, Senior Lecturer in the School of Banking at the University of New South Wales provided a report purporting to lay a foundation for the second last finding, but I disallowed it for reasons (not relevance) that I gave at the time. However, I have no hesitation in so finding and, as I indicated at the time, I did not understand senior counsel for the applicants to submit that I should not do so. 288 If Veda were omitted from the arrangement, it could easily be seen that the arrangement was one between a large number of credit providers who were mutually assisting each other's legitimate interests by exchanging information through a computer database. The question arises why the position relating to qualified privilege should be any different from that which it would be if, without the interposition of Veda, the subscribing credit providers were constituted simply as a mutual society of credit providers which maintained the database under the control of an elected committee (see [313] below). 289 I turn now to Macintosh v Dun (1908) 6 CLR 303; [1908] AC 390. 290 In Macintosh v Dun the plaintiffs carried on business in Sydney as general hardware merchants. The defendants were a firm that carried on the business of a trade protection society or mercantile agency under the name "R G Dun and Company". The defendants' business was that of obtaining information with regard to the commercial and financial standing and position of persons, firms or companies trading in New South Wales or elsewhere, and communicating that information confidentially to its subscribers in response to specific and confidential enquiries made by them. The form of the enquiry was a standard form of "Subscriber's Ticket" provided by the defendants to the subscribers, filled in by the subscribers and addressed to the defendants. In response to an application in that form, the defendants supplied reports in relation to the plaintiffs, who sued them for damages as a result of alleged libel. 291 At trial, Cohen J held that the occasion was not privileged. The judgment of the Full Court of the Supreme Court of New South Wales on appeal ((1905) 5 S.R.(NSW) 708) was delivered by Pring J. His Honour thought it obvious that it was for the common convenience and welfare of the trading community that a trader should be able to make enquiries with respect to the financial standing of another with whom he was dealing or about to deal, and that the answers to such enquiries, if given honestly and bona fide, should not subject the giver to an action for defamation (at 717). His Honour added (at 717): If the law were otherwise, the position of traders would be intolerable; their business would materially suffer, and the whole community would in its turn feel the effects of the check thus imposed on trade and commerce. To say that an enquiry respecting the character of a servant is made on a privileged occasion, and that one respecting the character of a merchant with whom another is dealing is not, is to lose sight of a principle of law which regulates privileged occasions. The principle is that the law on such occasions repels the inference of malice. 292 Pring J observed (at 718) that in the ordinary case of enquiries concerning employees, there was "only a moral or social duty" on the part of the person to whom the enquiry was directed, but that in a case such as the one before the Court there was a legal duty on the defendants to afford such information as they possessed. The reference is to the contract between the defendants and subscribers. His Honour continued (at 718): It was, indeed boldly argued that because [the defendants] are paid for their information there can be no privilege. That argument comes to this, that the higher the duty the less the protection. 293 On appeal to the High Court (Dun v Macintosh (1906) 3 CLR 1134) the Supreme Court's decision on the question of privilege was affirmed. In separate judgments, Griffith CJ, Barton J and O'Connor J expressed agreement with Pring J's judgment in the Supreme Court. 294 On appeal, the Privy Council ([1908] AC 390 at 400) referred to the facts that: · the defendants had taken the initiative by formulating and inviting enquiries for information; · the defendants held themselves out as collectors of information about other people that they were ready to sell to their customers; · it did not matter whether the customer dealt across the counter, so to speak, just as and when the occasion arose, or enrolled as a subscriber and paid a subscription fee in advance; · the motive of the defendants was not that of duty but commercial self-interest and the hope and expectation of a profit. 295 Their Lordships identified "the real question" as being whether it was "in the interests of the community" and "for the welfare of society" that the protection that the law gave to communications made in legitimate self-defence or from a bona fide sense of duty "should be extended to communications made from motives of self-interest by persons who trade for profit in the characters of other people" (at 400). Answering this question "no", they added: But information such as that which [the defendants] offer for sale may be obtained in many ways, not all of them deserving of commendation. It may be extorted from the person whose character is in question through fear of misrepresentation or misconstruction if he remains silent. It may be gathered from gossip. It may be picked up from discharged servants. It may be betrayed by disloyal employees. It is only right that those who engage in such a business, touching so closely very dangerous ground, should take the consequences if they overstep the law. 296 The Privy Council's decision has been criticised. In Watt v Longsdon [1930] 1 KB 130 at 148, Scrutton LJ said that the decision "must not be relied on too strongly" in the light of the decision of the House of Lords in London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15 (Greenlands). 297 In Greenlands the House distinguished Macintosh v Dun. The case concerned the London Association for the Protection of Trade (Association) which had over 6,000 members who paid an annual subscription. A member (Kydd) applied to the Association on a form provided by it for information on the commercial standing of a trading company (Greenlands) with which Kydd proposed to deal. The secretary to the Association (Hadwen) applied to a commercial agent and debt collector (Wilmshurst) at Hereford where Greenlands carried on business for such information. Having obtained the information from Wilmshurst, Hadwen passed it onto Kydd. Greenlands sued Wilmshurst, the Association and Hadwen for libel. 298 A jury returned verdicts against all three defendants, finding express malice against Wilmshurst. The Association and Hadwen appealed. The Court of Appeal ordered a new trial as against them. 299 On the further appeal to the House of Lords, Greenlands consented to have the judgment against the Association set aside because it transpired that it was an unincorporated association. 300 The House of Lords upheld Hadwen's defence of qualified privilege. Their Lordships saw the circumstances as being in substance an enquiry made by Kydd of Wilmshurst through the agency of Hadwen. Accordingly, just as such an enquiry by Kydd of Wilmshurst would have attracted qualified privilege, so did the enquiry through the agency of Hadwen. 301 Their Lordships distinguished Macintosh v Dun. Various points of distinction were mentioned: · the defendants in Macintosh v Dun were conducting their business for profit and were wholly unconnected with trade (at 26); · the defendants in Macintosh v Dun acquired their information from all sources (at 26); · no enquirer in Macintosh v Dun could possibly influence in any way the means by which the defendants' enquiries were set on foot (at 27); · the defendants in Macintosh v Dun could not have been regarded as the agents of the enquirer to whom they sold the information acquired (at 27). 302 The point of distinction that seems to be common to their Lordships' speeches is that in Greenlands the Association was an unincorporated not-for-profit association who business was carried on by a committee, which did not operate solely from motives of pecuniary gain, and Hadwen did not act as agent of the Association but as agent of Kydd. 303 Their Lordships emphasised that whether qualified privilege was attracted depended on a close scrutiny of all the circumstances of the individual case. 304 The present cases share some features with both Macintosh v Dun and Greenlands. Like the defendants in Macintosh v Dun: · Veda is motivated by the desire for pecuniary gain; · Veda is not itself in the business of providing credit but is in the different business of collecting and providing, for reward to itself, creditworthiness information sought by credit providers. On the other hand, as in Greenlands: · there is a large number of subscribers whose legitimate business interests are to be served by their obtaining creditworthiness information; · they apply to a central body (the association secretary in Greenlands and Veda in the present cases) for the information they desire. 305 Macintosh v Dun does not represent, even at a minimum,the predominant view of the law in the United States: see 15A Am Jur 2d, Collections and Credit Agencies, s 28 and Petition of Retailers Commercial Agency Inc, 174 NE 2d 376 (Mass., 1961). The United States position is summarised in American Jurisprudence 2d in the paragraph cited (footnotes omitted): Though there is authority to the contrary, reports of mercantile or other credit-reporting agencies, furnished in good faith to one having a legitimate interest in the information, are privileged. On the other hand, the decision in Macintosh v Dun was applied in Canada in Gillett v Nissen Volkswagen [1975] 3 WWR 520; 58 DLR (3d) 104, and see Informa Confidential Reports (Pty) Ltd v Abro, [1975] (2) S.A. 760. 306 In Australia, Macintosh v Dun was distinguished in Howe and McColough v Lees (1910) 11 CLR 361. That was a case of an association of stock salesmen who carried on business in the Bendigo sale-yards, and who, by the rules of the association, had contracted to inform the association's secretary of any person's failure to settle for stock purchased within a stipulated period. 307 The plaintiff, a grazier and stock dealer, sued a firm that had reported him to the secretary who had informed the other members accordingly. The High Court held (4:1) that the occasion was privileged. Macintosh v Dun was distinguished as turning on its own facts. Griffith CJ said (at 371) that the Privy Council had not professed to lay down any new rule, and had thought that the communication complained of was not to be seen as having been made in answer to an enquiry but as information volunteered. The Chief Justice also thought that their Lordships had considered the contract in Macintosh v Dun as "contrary to public policy" (at 371). 308 Barton J agreed with the Chief Justice. 309 O'Connor J also distinguished Macintosh v Dun as turning on the special circumstances under which it was claimed the privilege arose (at 373). His Honour characterised Macintosh v Dun as a case concerning an individual, association or corporation "that makes a business of collecting information about traders' credit and selling it for reward to other traders" (at 373). O'Connor J saw the real ground of the decision as residing in Lord Macnaghten's reference to "the interest of the community" and "the welfare of society" (see [295] above). 310 The evidence shows that Veda was incorporated on 12 December 1967 under the name "Credit Reference Association of New South Wales Limited", as a company limited by guarantee. It has had several changes of name (see [2] above). Until the 1990s it was an unlisted non-profit public company, but it then ceased to be a non-profit entity and also became a company limited by shares and guarantee. As at November 1995 it members were all credit providers. Although the memorandum and articles of association in evidence did not limit the membership to credit providers, I infer from their names that the signatories were in fact all credit providers. Veda's name was then "Credit Reference Association of Australia Limited". 311 Clause 7 of the memorandum of association provided: (1) Each member, and each other person as the Directors determine, may upon agreeing to the terms, conditions and fees determined by the Directors, be entitled to obtain from the Company such information as may be in the possession of the Company, to the extent allowed by the law in any manner prescribed by the Directors as concerns the credit, insurance claims history or any commercial information in relation to any person. (2) The Company shall not be obliged to receive information relating to any person otherwise than from members of the Company, and only to the extent allowed by the law, and in receiving, holding and supplying such information the Company shall at all times be acting as the agent of each member. (3) The member agrees to indemnify the Company in respect of all: (a) demands, claims, actions, proceedings or suits brought against the Company, whether in law or in equity; (b) liabilities of the Company; and (c) costs and expenses including legal costs and expenses (on a solicitor and own client basis) incurred by the Company arising directly or indirectly out of the use or reliance upon information supplied by or through the member to the Company, which is inaccurate for any reason, including because of error or omission. 312 Documents relating to the application for membership made by the Commonwealth Trading Bank of Australia in 1979 are in evidence. Paragraphs 3-6 of the form of application read as follows: 3. I/We shall supply the Association from time to time particulars of all persons trading with me/us in accordance with Schedule A printed overleaf. 4. I/We shall treat all information supplied by the Association in strict confidence and will not divulge it to any other person nor will I/we seek to obtain information from the Association on behalf of another person. 5. I/We acknowledge that the Association does not guarantee the accuracy of any information supplied to me/us and shall not be liable for any claim loss or damage suffered by me/us resulting from any information supplied. 6. In the event of a breach of any of the forgoing conditions the Association will not be under obligation to supply me/us with further information at any time. I need not set out Schedule A, although it is interesting to note para 7 of it: Reason for reporting to the Association; eg bankrupt, clear-out or skip, judgment debt outstanding, … 313 It seems clear that if Veda had remained a mutual association it would have been indistinguishable for present purposes from the Association in Greenlands or from the association of stock salesmen in Howe and McColough v Lees. Senior counsel for Veda informed the Court that Veda "demutualised and became a public company in the late 1990s". He submits that it would be "incongruous" and would be "the sort of thing that brings the common law into disrepute" if such a change in formal status could cause Veda to lose the defence of qualified privilege. 314 The evidence of the "demutualisation" was unsatisfactory. I do not know what changes were made to Veda's constitution. If all the evidence were in, it might reveal that there was originally a prohibition extraneous to Veda's constitution on the distribution of profits to members which was removed upon demutualisation in the 1990s. The memorandum and articles in evidence contain no such prohibition. 315 The evidence is useful, however, for what it suggests rather than for what it proves. Assume a not-for-profit mutual association which changes by adopting Veda's current structure and practice. Credit providers who become subscribers are still contractually bound to list defaulters for the benefit of all other subscribing credit providers. Why, it may be asked rhetorically, should qualified privilege be denied to the public company that, admittedly for profit to itself, facilitates the exchange? 316 I return now to Bashford (see [279] above). 317 In Bashford, the publisher of a trade newsletter was sued for defamation. The High Court held (5:2) that the occasion was one of qualified privilege. The reciprocity of duty or interest necessary to attract the defence existed because only persons responsible for occupational health and safety subscribed to the newsletter and it covered only that subject. The majority rejected a submission that qualified privilege was displaced because the newsletter was published for profit. Their Honours acknowledged that in Macintosh v Dun, the fact that the mercantile agency was in the business of providing information for profit appeared to have been an important consideration leading to denial of the defence of qualified privilege. However, they thought it would be wrong to isolate the element of profit and to conclude that its presence will necessarily always deny the availability of the defence. In relation to Macintosh v Dun, their Honours said (at [16]): ... [F]urther elements were identified: the disclosure of confidential information would be sought, and it would likely be sought by means condemned as at least inappropriate, if not unlawful. While these further considerations were seen as following from the existence of the profit motive, they were considerations critical to the conclusion that the occasion was not privileged. 318 In their joint judgment, Gleeson CJ, Hayne and Heydon JJ thought it important to recognise that the Privy Council in Macintosh v Dun did not endorse the proposition that had been urged in the Full Court that payment for information necessarily denies that the occasion of its communication is privileged (at [20]). Similarly, their Honours considered that the Privy Council did not hold that the voluntary assumption of obligation (whether by contract or otherwise) was necessarily inconsistent with the existence of mutual duty or interest. Their Honours said (at [20]): What distinguished Macintosh from Howe & McColough was the nature of the information conveyed and the manner of its collection. In Macintosh information which included private or confidential material gathered from and about third parties was being conveyed; in Howe & McColough, information about a transaction to which the maker of the statement was a party was passed on. In Macintosh, the fear was that inappropriate methods would be used to assemble the information; in Howe & McColough, the person who made the communication already possessed relevant knowledge. 319 It is noteworthy that s 30(5) of the uniform Defamation Act 2005 now reflects the view expressed in Bashford that the defence of qualified privilege is not defeated simply by the fact that the defamatory matter is published for reward. Following their discussion of Macintosh v Dun, Bashford and the uniform Defamation Act 2005, the learned authors: Trindade, Cane and Lunney, The Law of Torts in Australia (4th Ed, OUP, 2007) have no hesitation in saying that "[t]he communications of credit agencies to their client will therefore now be regarded as being covered by this category of qualified privilege" (at [7.7.4.1.1] p 394). I agree: and consider that s 30(5) reflected, rather than changed, the law in this respect. 320 In any event it is my opinion that Macintosh v Dun is distinguishable from the circumstances of the present cases. It is right to emphasise, as later authorities have done, that the business of the defendants in Macintosh v Dun was one of gathering or collecting information from a range of undisclosed sources. A reading of the creditworthiness reports issued by the defendants (at 5 SR (NSW) 708 at 709-712) bears this out. They were wide ranging and did not identify the sources relied on. Underlying the Privy Council's judgment is the view that it was dangerous to protect "communications made from motives of self-interest by persons who trade for profit in the characters of other people" (at 400). 321 The circumstances of the present cases are vastly different. The subscribers are a closed group of credit providers who have legitimate business interests to be served by their receipt of the personal information touching the seekers of credit that is contained in their credit information files. The credit providers are both the providers and the recipients of the information. The sources of the information are in all cases clearly identified. The Privacy Act protects the individual in the ways described earlier. 322 Moreover, the "convenience of the community" and "welfare of society" must be identified in the circumstances of the time. Macintosh v Dun was concerned with Sydney in 1903. It is difficult to resist the impression that those firms dealing or likely to deal with the plaintiffs were part of a small commercial society and that the defendants would have obtained their information from such sources as they thought reliable within that society. 323 The present case is concerned with the credit seeking population of Australia and the world of electronic communications. Individuals seeking credit are anonymous and the vast majority of credit providers are, generally speaking, not known to each other. The only means by which they can satisfy their legitimate interest in obtaining information as to the creditworthiness of seekers of credit is by a computer database of the very kind that Veda maintains. 324 What I have said is not, of course, intended to mean that the credit information industry should be unregulated. It is, however, to make the point that the convenience of the community and welfare of society at the present time make demands and allowances that are quite different from those appropriate to Sydney in 1903. 325 For the above reasons, I would hold that Macintosh v Dun does not standin the way of Veda's defence of qualified privilege, and hold that all of the credit reports given by Veda in relation to the applicants were published on occasions of qualified privilege. 326 In their submissions the applicants accept, citing authorities, that the statutory defence of qualified protection of interests, on which Veda has pleaded in relation to any publication in Queensland or Tasmania, is informed by the common law defence of qualified privilege. They emphasise that in order to be protectable, an "interest" must go beyond mere curiosity and must be in fact an interest of the kind to which the rules governing qualified privilege at common law refer, and which I have addressed above. The applicants submit that, for these reasons, the defences under s 16(1) of the Defamation Act 1889 (Qld) do not assist Veda. 327 By parity of reasoning, my conclusion is that the statutory defence of qualified protection of interests, like that of qualified privilege, succeeds. 328 For these reason, all of the claims in defamation fail.

[36]

(a) General 329 Except for Mr McGary's proceeding, which was commenced on 25 January 2006, the proceedings were commenced on 16 December 2005. As Veda submits, the application of the limitation defences in the nine proceedings is complicated because: (a) depending on the date of each alleged publication, one of three different manifestations of the relevant section in the Limitation Act 1969 (NSW) (Limitation Act) applied (see [331] ff below); (b) each defamatory imputation in respect of a publication is the basis of a separate cause of action (cf s 9(2) of the Defamation Act) with the consequence that an amendment which adds a new imputation marks the pleading of a new cause of action (in addition to any cause of action in respect of any other already pleaded defamatory imputation arising from the same publication); (c) at the time of the filing of their Amended Statement of Claim in the District Court on 24 March 2006, the applicants in some of the proceedings added imputations; (d) at the time of the filing of the Further Amended Statement of Claim in this Court on 2 April 2007, all applicants added a new set of imputations said to arise in the event that the disclosure of the credit information file which occurred on the date of an alleged publication was System-to-System, and the enquiring credit provider's computer automatically issued a recommendation to decline; (e) at the time of the filing of the Second Further Amended Statement of Claim in this Court on 5 February 2008, all applicants added a new imputation said to arise in the event that at the time of the disclosure of the credit information file on the date of each alleged publication, the relevant person in the office of the enquiring credit provider read only the name, address and word "defaults" on the "File Summary" box displayed on the "Risk On Line Individual Display" screen of the enquiring credit provider's computer; (f) in some of the proceedings, at a certain date the matter complained of was amended by the addition of words such as "Paid" or "Settled", which, in Veda's submission, was a change of substance, and which therefore affected the application of the relevant section in the Limitation Act. 330 Veda's submissions on its Limitation Act defences are set out in tabular form in Schedule B to its submissions. This comprises 16 pages in which Veda refers to the numerous imputations in the nine proceedings, the dates when they were first pleaded, and the Limitation Act provision said to operate in relation to each of them. Except to the extent mentioned below, I have decided not to address Veda's Limitation Act submissions (see [372] below). 331 I turn now to consider the limitation legislation. 332 Up to 17 February 2003 the six-year limitation period under s 14 of the Limitation Act applied to defamation actions. 333 By the Defamation Amendment Act 2002 (NSW) (No 136 of 2002), s 4, Sched 2.2[1], a new s 14B relating specifically to actions in defamation was inserted into the Limitation Act. In the Limitation Annexure, the section is referred to as "s 14B(2003)" and I will also use that expression. Section 14B(2003) provided: (1) Except as provided by subsection (2), this section applies to a cause of action based on the publication of defamatory matter that accrues after the commencement of this section. (2) If: (a) a cause of action based on the publication of defamatory matter that accrues after the commencement of this section is one of two or more causes of action in proceedings commenced by the plaintiff, and (b) each cause of action in the proceedings accrues because of the publication of the same, or substantially the same, matter on separate occasions (whether by the same defendant or another defendant), and (c) one or more of the other causes of action in the proceedings accrued before the commencement of this section, then this Act as in force immediately before the commencement of this section continues to apply to each cause of action regardless of when it accrues. (3) An action on a cause of action to which this section applies is not maintainable if brought after the expiration of one year running from the date on which the defamatory matter was published. The date of commencement of s 14B(2003) was 17 February 2003; see Proclamation dated 12 February 2003 in NSW GG No 45, Week No7. of 2003, dated 14 February 2003 pp 1588-9. 334 The effect of s 14B(2003) is that a one-year limitation period applied where publication occurred after 17 February 2003 (and up to 31 December 2005 - see below), unless the circumstances fell within subs (2), in which case the old six-year limitation period continued to apply. A post-17 February 2003 cause of action can fall within subs (2) only if there is at least one publication of "the same, or substantially the same" matter before 17 February 2003 which is sued on in the same proceeding. 335 A later version of section 14B commenced on 1 January 2006. It provides simply: An action on a cause of action for defamation is not maintainable if brought after the end of a limitation period of 1 year running from the date of the publication of the matter complained of. In the Limitation Annexure, this provision is referred to as "s 14B(2006)" and I will also use that expression. 336 The s 14B(2006) provision can be said to have entrenched the one-year limitation period that had been introduced by s 14B(2003) but without the latter's subs (2) qualification (although the transitional provision appearing in Schedule 5.2[7] to the Defamation Act 2005 (NSW) allows for some savings). Importantly, s 14B(2006) has no application to these proceedings because none of the pleaded publications post-dated 1 January 2006. 337 Veda submits that where an applicant has pleaded both Schedules A and B (Dale, Fisher, Marker, Shields and Strange) the addition of the single line about the payment or settlement of the debt to the matter complained of in Schedule A makes the matter complained of in Schedule B a substantially different matter. Veda submits that this change in substance is reflected in the content of the different imputations which the applicants plead are conveyed by the respective Schedules. Veda submits that, given that the applicants' case is that the alleged recipient was a credit provider assessing the creditworthiness of the applicant, it was a matter of substance that a debt in respect of which the default had been listed, had been paid or settled. 338 Even if the submission noted in the immediately preceding paragraph is not accepted, in Veda's submission at least the following pleaded causes of action are statute-barred: Adams 21.3.2005 ANZ (all imputations in paragraphs 6 and 6A) Adams 4.5.2005 Macquarie (all imputations in paragraphs 6 and 6A) Dale 19.10.2000 Direct Mortgage (all imputations in paras 7 and 7A) Dale 24.11.2000 Amex (all imputations in paras 7 and 7A) Dale 25.11.2000 Citibank (all imputations in paras 7 and 7A) Dale 27.11.2000 Amex (all imputations in paras 7 and 7A) Dale 2.1.2001 Citibank (all imputations in paras 7 and 7A) Dale 19.6.2003 S E Rentals (all imputations in paras 7 and 7A) Dale 24.6.2003 Optus (imputations in paras 6(h) and (i), 7 and 7A) Dale 10.11.2003 CBFC Rentals (imputations in paras 6(h) and (i), 7 and 7A) Fisher 5.10.2001 St George (all imputations in para 7A) Fisher 8.12.2001 GE (all imputations in para 7A) Fisher 17.12.2001 Optus (all imputations in para 7A) Fisher 12.1.2002 Amex (all imputations in para 7A) McGary 4.3.2005 Balmain NB Melbourne McGary 26.4.2005 Toyota Financial Services McGary 10.5.2005 NAB (all imputations in paras 6 and 6A) McGary 10.5.2005 CBA (all imputations in paras 6 and 6A) McGary 16.5.2005 Westpac (all imputations in paras 6 and 6A) McGary 30.5.2005 Bank of Qld (all imputations in paras 6 and 6A) Shields 24.12.2001 NAB (all imputations in para 7A) Shields 22.1.2002 St George (all imputations in par 7A) Strange 10.10.2003 Qld Police Credit Union Strange 3.3.2005 Loans by Phone Strange 13.1.2005 Esanda (imputations 4(c), (h) and (i), 7 and 7A) Strange 16.3.2005 Bill Rescue (imputations 4(c), (h) and (i), 7 and 7A) Strange 9.5.2005 Bill Rescue (all imputations in paras 7 and 7A) Strange 2.6.2005 GEFCA (all imputations in paras 7 and 7A) Strange 12.7.2005 ANZ (all imputations in paras 7 and 7A) Strange 20.7.2005 Int Acceptance (all imputations in paras 7 and 7A)

[38]

340 In response to Veda's Limitation Act defence submission, the applicants argue that all of the amendments to their respective pleadings take effect as from the filing of the original statement of claim (on 25 January 2006 in Mr McGary's proceeding and on 16 December 2005 in the other eight proceedings). The applicants refer to Baldry v Jackson [1976] 2 NSWLR 415 at 419 per Samuels JA, O 13 r 3A of the Federal Court Rules, and Vintage Developments Pty Ltd v GHD Pty Limited (No 2) [2006] FCA 1437 (Vintage). The applicants submit: 28. Where the limitation period of one year applies any pleaded imputation after 16 December 2005 is within time, and in the case of Mr McGary, any publication after 25 January 2006. 29. If there is a publication prior to 16 February 2003 then any subsequent publication will be within time by virtue of the savings provisions under s 14B(2) of the Limitation Act when amended with effect from 17 February 2003. All publications are of substantially the same matter. 30. All causes of action pleaded in defamation are publications within the twelve month period prior to the commencement of the proceedings or they come within the savings provision under s 14B(2) of the Limitation Act. 341 In reply, Veda submits that O 13 r 3A does not avail the applicants because that rule does not override O 13 r 2(3) which makes clear that an amendment out of time will be permitted under O 13 r 7(a) only if the Court grants leave. According to the submission, the Court will grant leave only if sub-rule 7(a) is satisfied and the Court thinks it just to grant leave. 342 According to Veda, the applicants must apply for leave to amend their pleadings, because on the occasion when the TFASCs were handed up in Court Veda reserved its rights in the present respect. The applicants agree that on that occasion Veda's position was reserved. 343 Veda submits that Vintage is distinguishable because the application in that case was an application to amend the capacity in which a party sued under O 13 r 2(6). However, Veda submits that O 13 r 2(6) is also subject to O 13 r 2(3)'s requirement of leave where the limitation period has expired, and that the correctness of Vintage is doubtful because the parties did not refer Her Honour to O 13 r 2(3). 344 The parties' submissions raised two issues for decision. The first relates to the construction and application of s 14B(2003). The second relates to the construction and application of O 13 rr 2 and 3A of the Federal Court Rules. 345 Both issues were argued by reference to general principles, and I will decide them accordingly, leaving it to the parties to apply my decision to the nine individual proceedings.

[39]

Section 14B(2003) 346 Under s 9(2) of the Defamation Act 1974, a cause of action in defamation accrues when a person publishes any matter to a recipient and by means of that publication makes an imputation defamatory of another person. In conformity with this provision s 14B(2003) of the Defamation Amendment Act 2002 (NSW) speaks of the accrual of a cause of action based on the publication of defamatory matter. 347 The date of publication is the date of accrual of the cause of action but a single publication gives rise to as many causes of action as there are defamatory imputations that arise from the matter published. 348 As can be seen from the Limitation Annexure, in many instances the allegation is of publication after the commencement s 14B(2003) on 17 February 2003. An action on any such cause of action is not maintainable if brought after the expiration of one year running from the date of publication unless subs (2) of s 14B(2003) operates. 349 I set out subs (2) of s 14B(2003) at [333] above. The aspect of the proceedings that is important for present purposes is that where there is a cause of action based on a publication of defamatory matter after 17 February 2003 and a cause of action based on the publication of defamatory matter before that date, both sought to be enforced in the same proceeding, the question arises whether, to quote para (b) of subs (2) of s 14B(2003): each cause of action … accrues because of the publication of the same, or substantially the same, matter… [my emphasis] In the present case, the only difference between the two matters published is that the later one includes a "Status" of "Paid" or "Settled" and a "Status Date". That is to say, the later publication informs the reader that as at the date specified as the Status Date, the debt in respect of which the default had been listed had been paid or settled. 350 In my opinion, in these circumstances the matters that have been published on the two occasions are "the same, or substantially the same, matter". Of course, there is a difference, but I do not think this prevents the two matters complained of from being "substantially the same". 351 The pleaded imputations are generally similar for the matter complained of in Schedule A and the matter complained of in Schedule B. Of course, the imputations said to arise from the latter take into account the fact of payment or settlement. 352 There is, of course, a difference as between a reading of the credit information file the day before the date on which the fact of payment or settlement was recorded and a reading of it the day after that date. But an enquiring credit provider reading it the day before would take into account the possibility that the debt claimed to be owing to the listing credit provider will yet be paid or settled, even imminently, and a credit provider reading it the day after will take into account the fact that the claimed debt was outstanding without payment or settlement for the same length of time as that which was taken into account by a credit provider who read it the day before. The difference is that the credit provider reading the matter the day before may take into account the possibility that the claimed debt may never be paid or settled, and will assess as extremely unlikely the possibility that the claimed debt will in fact be paid or settled within a day or two. The later reader, on the other hand, will enjoy all the benefits of hindsight and will know that the claimed debt was in fact paid or settled by the "Status Date" specified. 353 Paragraph (b) of subs (2) of s 14B(2003) speaks of the "matter" that was published. While I do not think that the two published matters under consideration are to be compared only quantitatively, it is difficult to accept that the addition of a single line which converts what was previously a future possibility into a past fact renders the two matters not substantially the same. 354 In terms of the purpose of the Limitation Act, Veda was not disadvantaged. It was already being sued on the publication of matter extracted from a credit information file maintained by it, and the effect of the addition of the later publication was to add a further line of data extracted from the same credit information file. 355 In the result, in my view s 14B(2003) does not apply to causes of action based on the publication of defamatory matter that accrued after the commencement of that section on 17 February 2003, where the only difference between that defamatory matter and the defamatory matter published before 17 February 2003 on which the relevant applicant sues Veda in the same proceeding, is the addition of the line of data referring to payment or settlement.

[40]

Order 13 rr 2 and 3A of the Federal Court Rules 356 Prior to the amendment of the Federal Court of Australia Act 1976 (Cth) (FCA Act) by the insertion of subs (2B) in s 59 by the Law and Justice Legislation Amendment Act 1994 (No 84 of 1994), it was generally accepted that the Court could not, under its rule-making power, deprive a litigant of the benefit of a limitation defence. This idea can be traced back to Weldon v Neal (1887) 19 QBD 394; and see the annotations to O 13 r 2 in Practice & Procedure High Court and Federal Court of Australia at [40,455.15]. 357 Subsection (2B) was introduced into s 59 of the FCA Act on 23 June 1994. It provides: The Rules of Court may make provision for: (a) the amendment of a document in a proceeding; or (b) leave to amend a document in a proceeding; even if the effect of the amendment would be to allow a person to seek a remedy in respect of a legal or equitable claim that would have been barred because of the expiry of a period of limitation if the remedy had originally been sought at the time of the amendment. 358 Pursuant to this amendment, O 13 r 2 was amended on 1 August 1994 by Statutory Rules 279 of 1994. The amendments substituted a new subrule (3) of rule 2 and added new subrules (4), (5), (6) and (7) to that rule. 359 Subrule (3) provides that where an application to the Court for leave to make the amendment mentioned in subrules (4), (5), (6) or para (7)(a) is made after any relevant period of limitation current at the date of commencement of the proceeding has expired, the Court may, nevertheless, grant such leave in the circumstances mentioned in that subrule if it thinks it is just to do so. 360 The relevant provision here is para (7)(a) which provides: An amendment may be made even if the effect of the amendment is to add a new claim for relief or foundation in law for a claim for relief (whether by way of substitution for an existing claim for relief or foundation in law or not) if the new claim for relief or foundation in law: (a) arises out of the same facts or substantially the same facts as those already pleaded to support an existing claim for relief by the party applying for leave to make the amendment; … 361 In the present case the amendment made by pleading a cause of action based on the publication of matter that included a reference to the payment or settlement of the relevant debt does not add a new claim for relief (the claim for relief remains a claim for damages) but adds a new foundation in law for the existing claim for relief. The question is whether that new foundation in law "arises out of the same facts or substantially the same facts" as those already pleaded to support an existing claim for relief by the party applying for leave to make the amendment. 362 Clearly, para (a) of subrule (7) of O 13 r 2 raises a question of comparison generally similar to that raised by s 14B(2003) discussed above. In s 14B(2003) of the Defamation Amendment Act 2002 (NSW) the concept is one of publications on separate occasions of "the same, or substantially the same, matter", and in O 13 r 2(7)(a) it is "arising out of the same facts or substantially the same facts". 363 The applicants rely on r 3A(1) of O 13 which provides: Unless the Court otherwise orders, an amendment of a document that is made under rule 2 … takes effect: (a) if the amendment is made under paragraph 2(7)(b) subrule 2(8) or subrule 3(3) - on the date when the amendment is made; and (b) in any other case - on the date when the document was first filed. 364 Accordingly, unless the Court otherwise orders, an amendment of a pleading in each of these proceedings that is made under rule 2 takes effect on the date when the pleading was first filed. A preliminary question raised by this provision concerns the meaning of "document" in rule 3A. For example, if leave is given to amend a second further amended statement of claim or to file a TFASC, and what happens in either case is that in fact a TFASC is filed, is the filing of that TFASC an "amendment" of the second further amended statement of claim? If so does the amendment take place on the date on which the second further amended statement of claim was filed or the date on which the original statement of claim was filed? 365 I do not intend to address these questions which were not debated. 366 The parties seem to have been at cross purposes. The applicants simply insisted that all amendments that have been made took effect on the date on which the proceeding was commenced which, both parties seem to have accepted, was the date of the filing of the original statement of claim. Veda, however, insisted that r 3A is not applicable unless the applicants have first applied for leave to amend under r 2. I accept Veda's submission in this respect. But it seems that the applicants agree. 367 Rule 3 provides for the circumstances in which a party may, without leave, amend any pleading, and it is not suggested that that rule applied here. It was necessary for the applicants to seek leave to amend under O 13 r 2. 368 If s 14B(2003) had applied, the terms of O 13 r 2 and the exercise of the Court's discretion would have risen for consideration. Veda reserved its position at the time of the filing of the TFASCs in Court and it would have been necessary to examine whether that was the occasion when the supposedly new causes of action were introduced. 369 Vintage does not assist one way or the other. In that case the applicants moved under O 13 r 2 for leave to amend, and regard was had to subrules (3) and (6) of that rule and to rule 3A. With respect, Bennett J correctly observed (at [20]) that the effect of rule 3A(1)(b) was that if the Court did not otherwise order when granting leave to amend under O 13 r 2, the amendment would take effect when the document the subject of the amendment was first filed. 370 Rule 3A is a default provision. When dealing with an application under rule 3 for leave to amend, the Court must bear in mind that unless it orders otherwise, rule 3A will have effect. 371 Since I have decided that s 14B(2003) did not apply, I need say nothing further in relation to O 13 r 2 and 3A of the Federal Court Rules. 372 I propose to say nothing further of Veda's limitation defences because I have decided to dismiss the proceedings on other grounds. A particular reason not to discuss the limitation defences further is that it would be necessary to consider the various times at which the pleaded imputations were introduced (see [329] above), yet I have not embarked on a consideration of the disputed question as to whether all of the pleaded imputations arise (see [277] above).

[42]

Did Veda owe a duty of care to the applicants in relation to the accuracy of the credit reports? 374 I set out at [104] above the facts and circumstances from which, according to Mr Dale's TFASC, the alleged duty of care arose. 375 Unfortunately, the TFASCs do not specify what the alleged duty of care is. The pleadings are that Veda owed to each applicant "a duty of care in publishing the matter" in Schedule A or Schedules A and B, as the case may be, to enquiring credit providers identified in the TFASC. The allegation of breach is that "[n]egligently and in breach of that duty, [Veda] included in the credit reports it published about the applicant inaccurate material that was likely to be damaging to the applicant" (my emphasis). 376 It is not sensible to enquire generally and without qualification whether Veda owed the applicants "a duty of care". It may well be that it owed them a duty to exercise reasonable care to ensure that its computer system was operating correctly, that is to say, correctly recording and giving out the information that was entered into the database by listing credit providers. Again, Veda may have owed the applicants a duty to exercise reasonable care to ensure that data could be extracted only by subscribers. Yet again Veda may have owed a duty to take reasonable care to ensure that the format of the ICCRs, the headings used in them and the classification of data under those headings did not distort the listed defaults. None of these duties of care, however, would serve the applicants who wish to establish that Veda is liable for the accuracy of the data that was made available by the listing credit providers. 377 It is appropriate that I state at once my conclusion: if Veda owed any duty of care to the applicants, it was the antithesis of the duty which the applicants propound. Far from a duty concerned with the accuracy of the particulars of the defaults that the listing credit providers wish to enter, if Veda owed the applicants any duty of care at all it was a duty directed to ensuring that its database accurately reflected and passed on to enquiring credit providers the very particulars of default which the listing credit providers wished to enter in the database. 378 A broad duty to take reasonable steps to ensure that the applicants did not suffer economic loss is untenable. The Privacy Act contemplates that credit reporting agencies will include in an individual's credit information file information of a kind referred to in s 18E(1)(b)(vi)-(x) and (ba) set out at [28] above (including, it will be recalled the opinion of a credit provider that the individual has, in the circumstances specified, committed "a serious credit infringement"). The Privacy Act also contemplates that a credit reporting agency will disclose information contained in an individual's credit information file to credit providers: s 18K of the Privacy Act. The Privacy Act accepts the lawfulness of credit reporting businesses and, if it so happens, the causing of economic harm to the seekers of credit by the carrying on of such a business. (For present purposes I will assume that a denial of credit by any particular enquiring credit provider will necessarily cause the individual economic harm, but I do not in fact accept that this is so). 379 The applicants do not submit that Veda was subject to the broad duty of care that I have described. They quoted from the following summary by McDougall J in OzEcom & Anor v Hudson Investment Group & Ors [2007] NSWSC 719 (OzEcom)at [321] of the elements of the cause of action in negligence causing pure economic loss extracted from recent High Court judgments: (1) Reasonable foreseeability of loss is not of itself a sufficient basis to impose a duty of care: Tame v New South Wales (2002) 211 CLR 317 at 329 [6] (Gleeson CJ; Tame was a case of alleged psychiatric injury, but what his Honour said applies a fortiori to a case of pure economic loss); Sullivan v Moody And Others (2001) 207 CLR 562 at 576 [420] (another case of alleged psychiatric and other injury; the comment just made in relation to Tame applies). (2) Nonetheless, reasonable foreseeability is a necessary condition of duty: Tame at 355 [103] (McHugh J). (3) The absence of reasonable foreseeability negates the existence of a duty of care (following from (2)). (4) A plaintiff's 'vulnerability', in the sense of its inability to protect itself from the consequences of a defendant's want of reasonable care, is an important requirement in analysing whether any such duty of care is owed: Woolcock Street Investments Pty Ltd v CDG Pty Ltd And Another (2004) 216 CLR 515 at 530 [23] (Gleeson CJ, Gummow, Hayne and Heydon JJ). (5) Another important consideration is assumption of responsibility coupled with known reliance: Woolcock Street at 531 [24] (ibid). (6) The existence and terms of any relevant contract may bear upon the existence and content of a duty of care: Astley And Others v Austrust Limited (1999) 197 CLR 1, 22 [47] (Gleeson CJ, McHugh, Gummow and Hayne JJ). To adapt the words of Lord Steyn (with whom the rest of the House of Lords agreed) in Williams And Another v Natural Life Health Foods Ltd [1998] 1 WLR 830 at 857, the role of the law of tort is to fill gaps where other remedies are not available. (7) The relevant statutory and common law context, including the allocation of responsibilities and the provision of remedies, is relevant to the determination, whether a duty of care should be imposed in a particular case: Esanda Finance Corporation Limited v Peat Marwick Hungerfords (1997) 188 CLR 241 at 282 and 286 (Mc Hugh J [sic]); and see Perre And Others v Apand Pty Limited (1999) 198 CLR 180 at 192 [5] (Gleeson CJ; his Honour repeated this sentiment in Tame at 329 [6]), 226 [120] (McHugh J)." As McDougall J acknowledged, the material relevant to the seven headings might overlap to some extent. 380 The seven paragraphs set out above can be summarised as: (1) Reasonable foreseeability of economic loss; (2) Vulnerability of the loss sufferer; (3) Assumption of responsibility coupled with known reliance; (4) The terms of any relevant contract bearing on the supposed duty of care; (5) The relevant statutory or common law context. 381 In Perre v Apand Pty Ltd (1999) 198 CLR 180, a case concerning pure economic loss, Gummow J said (at [198]): The question in the present case is whether the salient features of the matter gave rise to a duty of care owed by Apand. In determining whether the relationship is so close that the duty of care arises, attention is to be paid to the particular connections between the parties. … There is no simple formula which can mask the necessity for examination of the particular facts. 382 In its submissions, Veda summarised " the particular facts" in the present cases as follows: [18] (a) the Respondent operates a credit reporting business regulated by the Privacy Act 1988; (b) the business involves entering into contracts with subscribers for provision to them of the services provided by the Respondent, pursuant to which the subscribers are obligated to report credit defaults to the Respondent by posting such reports on the Respondent's database for the benefit of other subscribers; (c) the legislation places restrictions on the type of credit information which credit providers are permitted to post onto the database and imposes certain obligations on both the Respondent and the credit providers to take steps to ensure the credit information on the credit file was accurate; (d) the Respondent maintains the database but does not control the posting of information onto the database or when the information on credit files is posted onto the database; the manner in which consumer credit information is posted onto the database is controlled by the Act; (e) the Respondent has no contractual or other pre-existing relations with the persons the subject of credit files on the database, and has no knowledge of their personal or financial circumstances; (f) while the subscribers could be said to rely on the credit information which they are provided with, the persons subject to credit files held on the database do not rely on the credit files in any direct or conscious way, though they may be aware of their existence; (g) so far as the evidence in these proceedings revealed, the Applicants did not seek to access their credit files, or concern themselves with their contents, until after they became aware that the files may contain information which was interfering with them obtaining credit; (h) the posting of default information onto credit files can be done via the internet in a manual fashion, but overwhelmingly is done by automated computer downloads with minimal human intervention at the credit provider end and none at the Respondent's end - under either process the Respondent does not see the default information before it is registered onto the credit files; (i) the Respondent has no direct knowledge of the default information which subscribers post on the database - the subscribers are the controllers and source of that information which they create in their own business records; the subscribers have similar, if not more onerous, obligations as to accuracy of the information imposed on them by the legislation; (j) the Respondent does not trigger or control when the access is made to the database; it is a contractual obligation to make the credit information placed on there by credit providers available at all times to other credit provider subscribers; (k) the Respondent does not use the information for any purpose - it is a passive repository for the credit information, akin to a notice board or clearing house for the benefit of third parties; (l) the obligations imposed on the Respondent under the legislation in relation to prevention of inaccurate or misleading credit information are limited to reasonable steps and reacting once it becomes aware of inaccuracies; (m) the purpose of enquiries of the credit files by subscribers is to assist them in assessing credit applications by members of the public; at the time of such credit enquiries the Respondent has no knowledge of the particular application or the reasons for it; (n) a refusal of credit may or may not involve the applicant for credit in suffering financial harm; (o) the Respondent carries out various activities designed to correct alleged inaccuracies in credit information on the database, including training credit provider's employees, audit procedures, and complaints handling and investigation on behalf of members of the public, all within the restrictions on disclosing personal information imposed on the Respondent by the legislation; (p) as the Applicants concede, the provision of credit reporting services by the Respondent is of significant social and economic utility in enabling members of the public to obtain appropriate credit quickly and safely and at reasonable cost. I do not understand the applicants to dispute this summary. 383 Veda responded to the applicants' submissions based on the passage from OzEcom setout at [379] above. I therefore turn now to the five elements summarised at [380] above.

[44]

Vulnerability of the loss sufferer 387 The applicants were not powerless in relation to the information recorded in their credit information files maintained by Veda. Section 18H of the Privacy Act gave them a right of access to their file and s 18J entitled them to have Veda make appropriate corrections, deletions or additions to ensure that information in their file was accurate, up-to-date, complete and not misleading, or, if Veda did not do so, to have it include a statement in their credit information file. 388 Section 18M of the Privacy Act provides that if a credit provider refuses an application by an individual for credit and the refusal is based wholly or in part on information derived from a credit report relating to the individual, the credit provider must notify the individual of the reason for the refusal and the name and address of the credit reporting agency that gave the credit provider the credit report. As well, the notification must inform the individual of his or her right under the Privacy Act to obtain access to the credit information file. 389 Once the individual receives that notification, the way is opened up for him or her to request an alteration by the credit reporting agency under s 18J. 390 Understandably, the Privacy Act does not require the credit provider to accept the correctness of the individual's allegations: the individual's allegations may be unsupported and the listing may be correct. 391 The Privacy Act affords the individual the opportunity of complaining to the Privacy Commissioner who may make a determination of the kind referred to at [66] above. 392 Apart from the provisions of the Privacy Act to which I have referred, I would have characterised the applicants as vulnerable. However, I think that the Privacy Act removes their vulnerability. The Privacy Act establishes a régime that acknowledges that the role of the credit reporting agency is nothing more than a recorder, and that any dispute is between the individual and the listing credit provider. It is not possible for an individual to be refused credit based wholly or in part on information derived from a credit report without the régime being activated. Vis-a-vis the credit reporting agency, the individual is not in a vulnerable position.

[47]

The relevant statutory or common law context 398 In relation to the statutory context, I refer to the account that I gave of relevant provisions of the Privacy Act and of the Code at [9]-[69] above. 399 The provisions reflect an allocation of responsibilities as between credit providers and credit reporting agencies. The responsibility for the accuracy of content is imposed on the credit providers. The reason for this is obvious: it is they, rather than the credit reporting agencies, who know the true facts and supply the information to be recorded in an individual's credit information file. As noted at [39] ff, s 18E(1) does impose a primary responsibility on a credit reporting agency as to the kinds of personal information allowed to be included in credit information files, but responsibility for the accuracy of the information furnished in relation to any particular individual is placed on the credit provider. The credit reporting agency must, however, make a correction once the credit provider has informed it that one is called for. 400 The provisions of the Privacy Act that illustrate the allocation of obligations to which I have referred are illustrated by ss 18E(2), (8); 18F(3), (4), (5); 18J and 18M(1). Perhaps more important than the individual provisions mentioned is the assumption that underlies Part IIIA which is that the credit reporting agency is merely the recipient and distributor of information provided to it by credit providers. 401 The Code is, if anything, more explicit in relation to the allocation of responsibilities. As noted at [15], Part 1 of the Code deals with "Credit reporting agencies". Paragraph 1.2 provides that in order to ensure that personal information included in credit information files and credit reports is "accurate, up-to-date, complete and not misleading" (words taken from s 18J(1) of the Privacy Act), a credit reporting agency must issue to credit providers or other persons supplying it with personal information detailed instructions on the types of personal information permitted to be given to a credit reporting agency. There is no suggestion that the credit reporting agency must go further by intruding into the credit provider's business with a view to ensuring the accuracy of the information supplied. 402 Paragraph 1.3 of the Code is different. It provides that where "it appears to the credit reporting agency that the information being supplied by the credit provider may not be permitted to be included in a credit information file" (my emphasis), the credit reporting agency must refuse to accept the information and notify the credit provider, in writing, that its inclusion may be in breach of s 18E of the Privacy Act. The credit reporting agency's role is reactive. 403 The succeeding paragraphs, 1.4 and 1.5, reinforce this reactive role. They operate where a credit reporting agency becomes aware of certain problems touching information that has been supplied to it by a credit provider. Paragraph 1.4, in particular, deals with a situation where a credit reporting agency becomes aware that such information relating to an overdue payment or a serious credit infringement may be inaccurate. There is no suggestion that the credit reporting agency bears any kind of responsibility for the accuracy of the information at the outset. 404 Part 2 of the Code imposes on credit providers more onerous and direct obligations relating to the accuracy of information recorded in credit information files. 405 I turn now to the common law context. 406 Veda submits that the general law background to Part IIIA of the Privacy Act also tells against the imposition of a duty of care of the kind that the applicants must establish. Veda refers to the law relating to defamation and to statements by the High Court in Sullivan v Moody and Tame v New South Wales (2002) 211 CLR 317, generally to the effect that a duty of care will not be recognised where its recognition would render the common law incoherent. In particular, Veda relies on the defence of qualified privilege claims in defamation - a defence that is made available in the public interest. The defence is made available by the common law when a credit reporting agency provides an inaccurate credit report to a credit provider. It is argued that it would be destructive of that defence if the same common law were to impose a duty of care on the credit reporting agency as the foundation for a liability in negligence. 407 Sullivan v Moody was concerned with notifications by various categories of professional persons to the authorities of suspicions on reasonable grounds that certain offences had been committed against children. Certain medical practitioners and social workers employed by the South Australian Department of Community Welfare issued reports to the authorities that certain children had been sexually abused. The fathers of the children alleged that as a result of negligent examination, diagnosis and reporting by those professional persons, they, the fathers, had suffered shock, distress, psychiatric injury and resultant personal and financial loss. 408 The High Court held that it would be inconsistent with the proper and effective discharge of the professional or statutory responsibilities of those involved in investigating and reporting upon alleged sexual abuse, for them to be subjected to a legal duty to take care to protect persons who were suspected of being the sources of the harm. Their Honours emphasised (at [42]) that foreseeability of harm to the fathers was not sufficient to ground a duty of care. 409 Importantly for present purposes, in their joint judgment Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ said (at [53]-[55]): [53] Developments in the law of negligence over the last thirty or more years reveal the difficulty of identifying unifying principles that would allow ready solution of novel problems. Nonetheless, that does not mean that novel cases are to be decided by reference only to some intuitive sense of what is "fair" or "unfair". There are cases, and this is one, where to find a duty of care would so cut across other legal principles as to impair their proper application and thus lead to the conclusion that there is no duty of care of the kind asserted. [54] The present cases can be seen as focusing as much upon the communication of information by the respondents to the appellants and to third parties as upon the competence with which examinations or other procedures were conducted. The core of the complaint by each appellant is that he was injured as a result of what he, and others, were told. At once, then, it can be seen that there is an intersection with the law of defamation which resolves the competing interests of the parties through well-developed principles about privilege and the like. To apply the law of negligence in the present case would resolve that competition on an altogether different basis [cf Spring v Guardian Assurance Plc [1995] 2 AC 296]. It would allow recovery of damages for publishing statements to the discredit of a person where the law of defamation would not. [55] More fundamentally, however, these cases present a question about coherence of the law. Considering whether the persons who reported their suspicions about each appellant owed that appellant a duty of care must begin from the recognition that those who made the report had other responsibilities. A duty of the kind alleged should not be found if that duty would not be compatible with other duties which the respondents owed. 410 Sullivan v Moody is not on all fours with the present case because it involved a statutorily imposed duty on the professional persons to provide reports. There is no duty imposed by the Privacy Act on Veda to engage in its credit reporting business. 411 Notwithstanding this difference, in my view Sullivan v Moody gives guidance in the circumstances of the present cases. The passage from Sullivan v Moody quoted above is not expressed to depend on the imposition of the reporting duty by statute, or on the "professional" responsibilities of the medical practitioner and social workers. Rather, the passage addresses the relationship between the imposition of a duty of care and the existence of the defence of qualified privilege. 412 Once I have held that even an inaccurate defamatory credit report issued by Veda does not expose it to liability for defamation by reason of the defence of qualified privilege, it would introduce incoherence in the common law to impose a duty of care. Veda would, contrary to the convenience of the community and welfare of society that give rise to the defence, be inhibited in passing on the creditworthiness information in its database to those who have a legitimate interest in receiving it. 413 Tame v New South Wales is the second case relied on by Veda. Ms Tame was the driver of a car that was involved in a traffic accident. She had a nil blood alcohol level, but when completing a report on the accident, a police officer mistakenly recorded that her blood alcohol level was 0.14. While the error was subsequently noticed and corrected, a copy of the uncorrected report was provided to the insurer which was handling Ms Tame's claim against the nominal defendant in respect of the accident. The insurer nevertheless admitted liability. 414 Some time after the accident Ms Tame's solicitor told her about the entry concerning her blood alcohol level in the police report that had been given to the insurer. The police confirmed that the entry was wrong and they apologised. The insurer confirmed that liability for the accident was admitted. Nonetheless, Ms Tame became obsessed with the mistake that the police had made and ultimately developed a psychiatric disorder. She sued the State, claiming that it was vicariously liable for the negligence of the police officer. 415 The High Court held that the police officer had not owed a duty to take reasonable care to avoid psychiatric injury to Ms Tame. 416 At [28], Gleeson CJ stated (citations omitted): 28 … as in Sullivan v Moody, this is a case where the appellant claims to have been injured in consequence of what others were told about her. There is the same intersection with the law of defamation, and the same need to preserve legal coherence ... In the events that occurred, Mrs Tame's reputation was not harmed. But suppose it had been. Then the law would have engaged in an exercise of balancing the rights and responsibilities of Mrs Tame and Acting Sergeant Beardsley by reference to considerations many of which would be rendered irrelevant by the application of the law of negligence. Similarly, Gaudron J stated (at [58] citations omitted): 58 The second matter which indicates that Acting Sergeant Beardsley did not owe a duty of care to Mrs Tame is the fact that the direct cause of her psychiatric illness was not the inaccurate recording of her blood alcohol level, but its communication to others. Thus, in this case as in Sullivan v Moody, "there is an intersection with the law of defamation which resolves the competing interests of the parties through well-developed principles about privilege and the like" ... And as in Sullivan v Moody, "[t]o apply the law of negligence in the present case would resolve that competition on an altogether different basis". At the very least, the law of negligence with respect to psychiatric injury ought not be extended in a disconformity with other areas of the law. McHugh J observed (at [122] and [123] citations omitted): 122 Mrs Tame's psychiatric illness is the product of her concern for her reputation. There is no doubt that the publication of the P4 report to the insurer defamed her. She could have sued for damages for defamation. If successful, she could have recovered all the damages in that action that she sought in the present action including damages for her psychiatric illness. 123 In determining whether Acting Sergeant Beardsley owed a duty of care to Mrs Tame, it is proper to take into account - quite apart from the issue of reasonable foreseeability - that the law of defamation appears a more appropriate medium for dealing with the facts of her case than the law of negligently inflicted nervous shock. Her action arises out of a communication to a third party, her concern is with her reputation and the law of defamation has various defences that reconcile the competing interests of the parties more appropriately than the law of negligence. This Court has already taken the view that, independently of policy issues relevant to the interests of the parties and persons like them, the need for the law to be coherent is a relevant factor in determining whether a duty exists. In Sullivan v Moody, ... the Court said that coherence in the law was a relevant factor in determining whether a duty of care existed. In Sullivan, the Court held that officers of the Department of Community Welfare owed no duty of care to a person affected by a communication made as the result of investigating, under a statutory power, a sexual assault allegation. Finally, Callinan J, (at [323], [325]) stated (citations omitted): 323 Whilst it may be accepted that a plaintiff is entitled to avail herself of whatever remedies are available to her, it is important that a decision and the reasoning leading to it, in an unusual case, which this one is, be in harmony with, so far as is possible, available related causes of action, and the common law as a whole or, as it was put by this Court in Sullivan v Moody, ... that they not offend the "coherence of the law". The facts of this case might conceivably have given rise to actions in negligent misstatement (if that action is not confined to claims for economic loss) and defamation. That these causes of action may also be available on the facts of the case, and would then be governed by special rules affected by policy considerations, is relevant to the question whether the appellant should recover damages for "nervous shock" on the basis of those facts. As to the former cause of action, Barwick CJ in Mutual Life & Citizens' Assurance Co Ltd v Evatt … said: "But I think it is quite clear that the relationship of proximity, adequate for compensation of injury caused by physical acts or omissions, would be inappropriate in the case of utterance by way of information or advice which causes loss or damage. The necessary relationship in that connexion must needs be more specific." … 325 Many controls and special defences, both statutory and at common law, ordinarily operate to restrict claims in defamation; for example, defences of qualified and absolute privilege, and the need for a plaintiff to prove absence of good faith on the part of the defendant. 417 Like Sullivan v Moody, Tame v New South Wales is unlike the present cases in that it was concerned with duties imposed by statute on persons who perform certain functions in the interests of the public or of a cross-section of it (for a recent illustration from the United Kingdom see Jain v Trent Strategic Health Authority [2009] 2 WLR 248). However, I think that the approach taken in Tame v New South Wales is applicable. The defence of qualified privilege is made available because it is seen to be required in the public interest. It would introduce an incoherence in the law to impose a duty of care on Veda directed to the accuracy of its credit reports to enquiring credit providers.

[49]

(a) What was Veda required to do in order to discharge its supposed duty of care? 420 Accepting that Veda was not in a position to know whether the data entered in the database by its subscribers was accurate, the applicants submit that Veda should have taken various steps directed to ensuring that its subscribers themselves entered only accurate information. In particular, the applicants submit that Veda should have insisted on a "checklist" involving several mandatory steps or mandatory fields to be attended to by the computer operator in the listing credit provider's office. 421 The applicants do not submit that Veda, rather than the listing credit providers, should have listed defaults. Veda would still have to depend on subscribers for the correctness of the default data supplied. 422 In my view Veda's supposed duty of care did not require it to introduce and insist upon the checklist procedure suggested by the applicants. 423 The applicants relied on evidence given by their expert witness, Kosta Patsan that Veda could have introduced a "checklist". In substance, Mr Patsan's suggestion was that the operator in the credit provider's office would be required to respond to a number of mandatory queries which would bring home to that person the seriousness of listing a default. For example, the operator would be required to enter the date of the initial default and the date of a warning letter, and to respond to the question whether the individual had entered into an arrangement with the credit provider. 424 Mr Patsan said that the checklist would serve three purposes which he identified in his report as follows: 1) Ensures that the subscriber user need[ed] to enter information (& thus ascertained the information), before entering it into … the Veda database 2) The dates entered would be cross checked automatically against the date of entry, to ensure that the correct number of days had elapsed before a default could be listed 3) Provide Veda with an audit record of information from the subscriber, indicating to Veda from the subscriber that the dates were correct and thus the requirements for listing were met. 425 On the face of his report, Mr Patsan's suggestion does not deal with the more than eighty-five percent of data entries that are totally automated, that is to say, do not involve an operator at all. When this was put to him in cross-examination, he said that when he wrote his report he had had computer-to-computer listings as well as manual listings in mind. It became clear, however, that Mr Patsan had not considered the fundamental and costly restructuring of both the business and computer systems that would be required if a manual element were to be injected into the fully automated default listing procedures used by banks and other large organisations at present. 426 The applicants' case, however, is that Veda should have insisted on a checklist procedure from the outset. It misconceives the applicants' present submission to characterise it as a submission that Veda should have insisted on the injection of a checklist procedure into a fully automated system that was already up and running. Rather, the submission is that Veda should not have countenanced a fully automated system without a manually operated checklist in the first place. 427 In one way or another, the applicants' case in the present respect was that Veda had a duty to ensure that its subscribing credit providers' business systems were such as to ensure that the listing credit providers complied with the Privacy Act by making only accurate listings of defaults. 428 In my view Veda was not subject to such a duty. The Privacy Act demonstrates the dichotomy to which I referred earlier. No doubt credit providers might fail to comply with the Privacy Act or with the Code, but in the light of that dichotomy I do not think the law imposes a duty on Veda to take steps with a view to reducing the number of inaccurate listings, any more than that it imposed a duty on subscribers to take steps with a view to ensuring that Veda complied with requirements that the Privacy Act or the Code imposed on it. This absence of the suggested duty to insist that subscribing credit providers adopt a checklist procedure derives from the scheme of the Privacy Act, but is also supported by the following consideration of the facts as to the inutility of the suggested procedure. 429 Mr Janssens described in his affidavit the manual and automated systems of entering defaults into Veda's database. He said that in the period from 1 July 2000 to 30 June 2007 more than eighty-five percent of defaults were reported via automated systems, the remainder being entered manually by an operator via the web-based system. Mr Janssens described the automated systems for listing of defaults as a System-to-System default loading process which is used by, for example, large banks. He said: For example, large banks will have a system whereby each month all credit accounts on its system which have met the relevant conditions for listing a default entry (e.g. the account is more than 60 days in arrears, is for more than $100 and the relevant notices have been sent) are automatically extracted and the relevant data required by the Veda's system from the credit provider is transmitted to Veda's system… It involves no human interaction or involvement. 430 Mr Janssens identified the steps that would have to be taken to interject into the automated systems a checklist of additional mandatory fields, over and above those that exist already, to be manually completed by an operator. He said that it would be impossible to make the change while maintaining the automated system and that it would require a major restructuring with the co-operation of the credit providers. 431 While Mr Janssens gave detailed evidence of the problems associated with making the change, I do not think that this answers the applicants' suggestion. Their argument is that the checklist should have formed part of the credit providers' systems from the outset. Consideration of any "change" is thus otiose. 432 However, evidence given by Mr Allison does answer Mr Patsan's suggestion. Mr Allison said that automated systems for the listing of defaults already contain checks of the general kind that Mr Patsan advocated. He said that the banks, for example, build their computer systems so that the default data must satisfy all of the required conditions in order to be electronically transmitted, System-to-System, to the Veda database. He said that in these circumstances, and having regard to the great volume of data flowing, it would achieve nothing to require an operator to tick a box to the effect that the conditions had been satisfied. 433 Mr Janssens said: In all of [these] cases there is no person, it is a computer system with an account system. It picks up those accounts that are in arrears for more than 60 days and for which a notice had been sent out. So there is actually not a human being involved in the process of reporting the default. 434 The most that can be said of the applicants' suggestion is that in the case of the less than 15% of the default listings that are effected by an operator over the internet, a checklist might, at least for a while, remind computer operators of the elements constituting the various classes of default. But any problem exists at an earlier stage in the credit provider's system. A requirement that the operator tick "boxes" can only be as reliable as the previous observance of correct procedures by someone else. 435 Having regard to human error, laziness or perversity at the underlying (pre-operator) level, I am not persuaded that an operator checklist is a reasonable precaution or deterrent on which Veda should have insisted. I am certainly not persuaded on the evidence that a checklist for an operator to work through would have led to the non-occurrence of any of the listings of defaults in the cases of the applicants. 436 The applicants have not suggested any reasonable, practicable and effective steps that Veda might have taken to the end of eliminating or reducing inaccuracy in default listings. This also confirms the absence of the relevant duty of care incumbent on Veda.

[50]

(b) Were the respective credit reports inaccurate? 437 The applicants did not call any witnesses from any of the listing credit providers with a view to their giving evidence establishing the incorrectness of their listing of a default. Nor did Veda call any such witness with a view to establishing the correctness of a listing. 438 The applicants bear the onus of proving that a listing was inaccurate as alleged in their TFASCs. They rely on their own evidence and on certain documents that were produced by credit providers in response to subpoenas issued by them. 439 In order to determine whether listed defaults were inaccurate, it is necessary to know the meaning of the expressions by which the defaults were described. The defaults were listed by subscribers and were to be read by subscribers. The primary source of their meanings was the Guide. In addition, I think that inquiring credit providers would understand the listing of the defaults to imply that any applicable provisions of the Privacy Act has been complied with. Subscribing credit providers were part of the credit industry and can be taken to have been familiar with s 18E, the Code and the Guide. They listed defaults and read those that had been listed against that shared background. 440 Of relevance to the nine cases are three classes of default: "Payment Default" (Adams, Fisher, Marker, Shields, Tyndall); "Clearout (Watched)" (Dale, Strange, Taylor) and "Repossession Loss (after sale)" (McGary). I set out the Guide's definitions of these terms at [87] ff above. 441 It is convenient to repeat the definition of "Payment Default": The account must be 60 days or more overdue and the debtor or debtors must have been sent a written notice advising of the overdue payment, and requesting payment of the amount outstanding. I do not think that para (B) of s 18E(1)(b) (see [28] above) adds anything to this meaning because ordinarily at least the taking of steps to recover the whole or any part of the amount of credit would be satisfied by the sending out of the written notice referred to in the definition. I do not think that any additional significance is drawn to either of the "clearout" classes of default from para (c) of the Privacy Act's definition of "serious credit infringement" (see [31] above). 442 Where the person was shown as a guarantor (McGary, Shields), para (ba) of s 18E(1) (set out at [28] above) was an additional source of meaning. That is to say, where the listing showed that the individual's alleged liability was that of a guarantor, it would be understood that para (ba)'s conditions of the giving of notice to the guarantor of the borrower's default, the lapse of 60 days after the giving of that notice, and the taking of steps by the credit provider for recovery of the overdue payment from the guarantor, had been satisfied. 443 I will not address questions of inaccuracy as to the amount entered, except in those cases where it occupied attention in submissions.

[51]

(1) Adams 444 It may be recalled (see [162] above) that Schedule A to Ms Adams's TFASC referred to a "Payment Default". The listing occurred on 30 June 2004. The amount shown was $12,733.00. There was a "Status" of "Paid" as at 1 October 2004. 445 The credit provider that listed Ms Adams's default was "TRENDWEST SOUTH PACIFIC FIN", which is Trendwest South Pacific Finance Pty Ltd (Trendwest). Ms Adams said that her dealings with Trendwest arose out of a time share arrangement to which she (or she and her partner, Allan Warren) subscribed. She said that in 2002 she attended an evening seminar in Brisbane when the time share arrangement was explained to her and she "eventually" signed up. She said she recalled that there was a cooling off period of some ten days. She agreed that she and Mr Warren entered into the arrangement as a "considered" decision. 446 Ms Adams said that her payments were approximately $200 per month. (It appears that they were in fact $236.23 per month.) Ms Adams said that the arrangement did not live up to the representations that had been made at the seminar, in that she was continually told that accommodation that she sought was not available. She said that she met with a representative of Trendwest some time in early 2004 at the Trendwest office in Brisbane and told him that she was dissatisfied and had decided to cease payment. In cross-examination Ms Adams conceded that her understanding at that time was that she had an obligation to continue making the monthly payments. She did not seek legal advice in relation to her decision and did not attempt, through legal proceedings, to have her obligations terminated The man at Trendwest told her something about selling her shares as the way out for her and she told him that she would need time to be able to do that. Ultimately, Ms Adams forfeited her shares. 447 In cross-examination Ms Adams accepted that she had signed a Contract and Mortgage with Trendwest on 17 April 2003. She said that she may have been wrong as in the evidence she had given as to the date of the seminar. 448 There is in evidence a letter dated 9 June 2004 from Trendwest to Ms Adams advising her that her account was $1,353.08 in arrears and required immediate attention. The letter advised that unless the default was rectified within seven (7) days from the date of the letter, Trendwest would exercise its rights under the contract and would like list the default with Veda and that this would have an adverse effect on any future application Ms Adams might make throughout Australia and New Zealand, including any application she might make "for telecommunications". Ms Adams was fairly sure she received that letter and conceded that she appreciated its meaning. She said that she felt she was liable to make the payments if she received the promised services, but she was not prepared to pay if this was not the case, as she had explained to Trendwest. 449 There is in evidence a further letter dated 17 June 2004 from Trendwest to Ms Adams and Mr Warren asserting that the balance owed by them was "168 days delinquent with a past due contract balance of $1,477.38". The letter demanded payment of that amount and threatened that if it was not received or if the addressees did not contact Trendwest and make satisfactory payment arrangements by 24 June 2004, Trendwest would have little option but to record a payment default with Veda. The period of 168 days, or some five and a half months, is consistent with Ms Adams having ceased her payments in January 2004. 450 Ms Adams said she recalled telephoning Trendwest in June 2004, but could not recall the exact date, to say that she would not pay. She said that there were a few letters she received from Trendwest, and that she probably contacted the Trendwest office in response to Trendwest's the letter of 17 June 2004. 451 There is in evidence a further letter dated 15 July 2004 from Trendwest to Ms Adams and Mr Warren. Ms Adams said she remembered receiving it. This letter referred to a "Contract and Mortgage dated April 17, 2003" and asserted that she and Mr Warren were in default, having failed to pay the regularly monthly instalments of $236.23. The letter pointed out that interest at the rate of 14.9 percent per annum calculated on a daily basis was accruing on the balance, and that the balance of principal plus interest as at 15 July 2004 was $12,804.77, in addition to which there was a Late payment and Demand Notice charge of $20. 452 The letter advised that Ms Adams and Mr Warren could remedy the default by paying Trendwest $12,824.77. The letter advised that if payment of that amount was not made within 30 days of the date of the letter, Trendwest would commence enforcement proceedings, including forfeiture of "the mortgaged goods". These were said to be the "Holiday Credits" that Ms Adams and Mr Warren had purchased in "WorldMark South Pacific Club". Finally, the letter advised that if the recipients were unsure about its meaning, they should seek independent legal advice. 453 Ms Adams said she may have had a couple of telephone conversations with Trendwest and always asked for the same person whose name she had forgotten. She said that she told him that she was not going to pay for something that Trendwest had promised she would get but did not receive. In fact she said that she did have one lot of accommodation in 2002 at "Golden Beach, which is local" and a second one, the date of which she had forgotten, also at "the same place, Golden Beach, local". She said that she was "primarily asking for Bali because that is where [she] was doing business" but Trendwest did not meet her request. 454 Ms Adams submits that the payment default of $12,733.00 that was listed on 30 June 2004 represented either a sum that was not owing or a sum for which no demand had been made. As discussed above, the only demands which had been made were for the sums of $1,353.08 and $1,477.38 in the letters of 9 and 17 June 2004 respectively. Ms Adams also submits that her evidence demonstrates that it was wrong to enter "Paid" on her credit report as at 1 October 2004. She additionally submits that the making of this entry was an acknowledgment by Trendwest that nothing was owing; not that some amount that had been owing had been paid. Ms Adams further submits that if there was to be a listing at all, it should have been that of "Default Challenge" because there was a dispute about the sum owing. 455 Ms Adams contends that if the checklist procedure recommended by Mr Patsan had been adopted (see [423] ff above), "Default Challenge" would have been the listing rather than "Payment Default". More generally, Ms Adams submits that the checklist would have focussed attention on s 18E(1)(b)(vi)(B) of the Privacy Act (set out at [28] above) and on the fact (as submitted) that Trendwest had not "taken steps to recover the whole or any part of the amount of credit (including any amounts of interest) outstanding". In Ms Adams's submission, such steps would have included the sale of her holiday credits. Her submission that, within the meaning of this section, she was not overdue in paying a sum of $12,733, seems to be derived from this proposition. 456 Veda submits that the inference is open that the listing was updated to "Paid" following Trendwest's selling "Holiday Credits" forfeited in accordance with Trendwest's letter of 15 July 2004. Contrary to Ms Adams's submission, therefore, Veda submits that "Paid" does not signify an acceptance by Trendwest that nothing had been owing. 457 I accept that Ms Adams's was attempting to give a true account to the best of her recollection, although her recollection of dates and sequences had faded somewhat. 458 The question whether the listing on 30 June 2004 was inaccurate raises questions which can only be resolved finally in litigation between Ms Adams and Trendwest. In Ms Adams's case, as in the others, the evidence gives only a partial picture. 459 It is clear that Trendwest's letters of 9 and 17 June 2004 referred to "arrears" and a "past due contract balance" of $1,353.08 and $1,477.38 respectively. The letter of 15 July 2004 referred to "monthly instalments" of $236.23 and there is no reason to question this amount. The non-payment of $236.23 for five to six months could well give the amounts of $1,353.08 and $1,477.38, particularly if interest and/or other charges are included. 460 The Contract and Mortgage dated April 17, 2003 referred to in Trendwest's letter of 15 July 2004 are not in evidence. For all I know, the contractual arrangement may have been that upon default, the balance of principal and interest fell due, as implied in Trendwest's letter of 15 July 2004. Ms Adams acknowledged that she ceased paying Trendwest in about January 2004. It may be that under the contract between her and her partner and Trendwest, this default led to $12,733.00 of principal and interest being owed by 30 June 2004. 461 Ms Adams had evinced an intention no longer to be bound by her contract with Trendwest. The question is whether, because of Trendwest's failure to make the accommodation in Bali that she sought available to her when she wanted it, there was a breach or wrongful repudiation by Trendwest that entitled Ms Adams to put an end to her contractual obligations to Trendwest. On the state of the evidence, I simply do not know. The terms of the contract between Ms Adams and Trendwest, including the nature of Trendwest's obligations, are not proved. 462 In relation to the meaning of "Payment Default" discussed at [88]-[89] above, Ms Adams's account was apparently 60 days or more overdue and the letters of 9 and 17 June 2004 appear to have satisfied the Guide's requirement that notice be sent. At least, they are not shown not to have done so. Trendwest was apparently entitled to list a "Payment Default" as defined in the Guide. 463 In relation to the question whether s 18E(1)(b)(vi)(B) of the Privacy Act, discussed above at [28] was satisfied, in my view the sending of the letters dated 9 and 16 June 2004 was the taking of "steps to recover" the whole or any part of the amount of credit… outstanding". I see no reason to construe "steps" as referring, for example, only to the institution of some legal or other official recovery proceeding. 464 As subscribers viewing Ms Adams's credit information file would have known, the listing of the amount of $12,733.00 did not imply that that was the amount of the "overdue payment" or "the amount outstanding" of which the debtor had been given written notice. In the Guide, the amount to be entered is referred to as "the amount owed in whole dollars only". The Guide states that the amount may be changed on an updating "if the debt increases from e.g. $1,000-$2,000, and the change can be verified". 465 The status of an account may be updated, for instance to show that a default has been paid. The word "Paid" signifies that a "defaulted account" had been paid in full and was now closed. Payment might be made by the creditor's crediting the amount of the proceeds of sale of a security. 466 I am not satisfied, in the absence from the evidence of the documents establishing the obligations of Trendwest, that it had breached or repudiated its contractual obligations so that Ms Adams was entitled to put an end to hers. It is not shown that the "Payment Default" listing was inaccurate and, indeed, on the evidence before the Court it was probably correct.

[52]

(2) Dale 467 It will be recalled (see [84] above) that in Mr Dale's case, BARTERCARD LTD QLD (Bartercard) listed "Clearout (Watched)" on 20 March 2000. The amount shown was $1174. According to Schedule B to Mr Dale's TFASC, on or by 20 June 2003 that amount had been "Paid". This was a commercial default listing. 468 Since the listed default was a commercial default, s 18E(1) of the Privacy Act did not apply. Nor did the Code. The concept of a "serious credit infringement" was similarly irrelevant. The meaning of "Clearout (Watched)" is to be defined from the Guide alone. This class of Commercial Credit Default Report Type was a "confirmed missing debtor eg skip or clearout" whom there had been reasonable efforts made to contact in person or in writing. 469 It is important, then, to bear in mind that the question is whether Mr Dale has proved that as at 20 March 2000 the criteria contained in this definition from the Guide were not satisfied. 470 In his affidavit, Mr Dale explained that the Bartercard system involved "members" who supplied goods or services or both that were paid for by other members in "Bartercard dollars"; in substance in goods or services or both provided by the other members. He stated that Bartercard took a ten percent fee on all transactions and that it charged a fee for the maintenance of the account, even if it was not used. In his affidavit Mr Dale said that prior to March 2000 and up until 23 October 2003, he "operated a Bartercard on a regular basis", incurred interest and fees even while he was "defaulted", and was never advised of the listing. 471 In a letter dated 20 June 2003 from Bartercard to Mr Dale, Bartercard confirmed that Mr Dale's account was "closed in full and final satisfaction on 20/06/2003 with no further payments required". The letter advised that Mr Dale had "held an active Bartercard account" between August 2000 and December 2001. It should be noted, however, that this was a reference to a new and later account that Mr Dale had established with Bartercard (see [475]-[480] below). 472 In a letter dated 27 October 2003 to DR Capital, Mr Dale's authorised agent, Bartercard explained why it was unable to comply with DR Capital's request made on behalf of Mr Dale that the default be "removed". Bartercard confirmed, however, that the default listing had been updated to "Paid" as at 20 June 2003 when Mr Dale had paid the amount owing. 473 In oral testimony Mr Dale said that he had become a member of the Bartercard "community" when he was operating a Spit Roast catering business in Brisbane and that later he added his "surroundpix.com.au" business to the Bartercard directory. He explained that through the Bartercard directory other members were enabled to use his services as a result of which he would earn Bartercard "credit points", which he, in turn, would be entitled to use in acquiring goods or services from other members. 474 In 1999 Mr Dale progressively relocated from Brisbane to Sydney over a period of some six months. He moved out of the Spit Roast catering business and relocated the Surroundpix business to Sydney. Mr Dale said that he told his Bartercard account manager in Brisbane that he needed "a bit of a breather" from enquiries from Bartercard about the development of his business, while he focused more on the Surroundpix business which would be running from Sydney. His evidence was that he told his Bartercard account manager "I'm going to Sydney… just give me two months and we'll have another chat when I'm all geared up again". Mr Dale said that over the six month period he was travelling between Sydney and Brisbane. He said he eventually sold the Spit Road catering business to his "partner". He said that the name of one of the Bartercard staff to whom he spoke (at the end of 1999) was "Mena". 475 Mr Dale said that Bartercard usually communicated with him by phone and sometimes by email, and that they would send promotional materials by fax. He said that when he moved to Sydney, he continued to receive faxes from Bartercard. He said that "eventually" he re-established contact with Bartercard, which, he said, "seemed a little surprised about" his having relocated to Sydney, "so [he] said 'okay, well, you know, this is where I am and this is what we're doing'". Mr Dale said that it was at this point that he gave them his address in Sydney This evidence, including his use of the word "eventually", suggests an absence of contact apart from the receipt of faxes. 476 Mr Dale said while he was in Sydney he continued to receive from Bartercard statements showing his credit point entitlement and still had his card, but that Bartercard was not procuring any business for him, and he added that he "went to a few people but nothing ever eventuated from that". He said that the statements gave notification of accumulating fees in dollars, but that he did not receive a demand for payment. Mr Dale said that as at the date of the listing on 20 March 2000, he was still "operating with" Bartercard and receiving telephone calls from its representatives, but none of them told him of the "Clearout (Watched)" listing. 477 There are in evidence numerous "tax invoice/statements" issued monthly by Bartercard to Mr Dale. They are dated from 31 March 2000 to 31 July 2003, and are all addressed to Mr Dale at 64 Parramatta Road Glebe NSW 2037. I infer that as at 31 March 2000, Bartercard had Mr Dale's Glebe address. The Bartercard letter dated 20 June 2003 to Mr Dale referred to earlier, however, was addressed to him at 4/48 Washington Street Bexley NSW 2207. 478 There is in evidence a chain of correspondence between Mr Dale and Bartercard, all of which post-dates the listing on 20 March 2000. The first is a fax dated 29 May 2000 from Mr Dale on a letterhead of "Shane Dale - Interactive Design" at 64 Parramatta Road, Glebe, to John Johnson of Bartercard, asking Bartercard to "reactivate" his Bartercard account and undertaking to send "the outstanding amount of $151.11" to Bartercard's Parramatta office "upon confirmation of this fax". He said, however, that his account would "need to be settled with incoming funds from John Serafino, approx $1500 barter" which should "bring [his] account in order". His letter also said that he would like to meet with the addressee to discuss the current business with which (Mr Dale) was involved, which was "Australia's largest internet real estate advertising agency - surroundpix" of which he was the managing director. The word "reactivate" suggests that Mr Dale did not regard his Bartercard account as being active as at 29 May 2000. 479 On 16 August 2000, Jeanette Miller of Bartercard wrote to Mr Dale a letter beginning: Welcome back to Bartercard. We are delighted to have you back as a member and look forward to working with you to create new opportunities for your business. [my emphasis] The letter gave him a new account number, identified his "brokerage" as "Sydney Central", and identified his "trade co-ordinator" as John Johnson. This new account marked a new point of departure in Mr Dale's dealings with Bartercard. The terms of Bartercard's letter suggest that prior to this, Bartercard had ceased to regard Mr Dale as a member. 480 On 9 January 2001 Bartercard wrote to Mr Dale at 64 Parramatta Road Glebe requesting payment of an "amount due" of $98.19. On 31 January 2001 Bartercard wrote to him advising him that it intended to cancel his membership, effective seven days from the date of the letter, and said that this step might result "in a default lodgement with the Credit Reference Association of Australia (CRAA)". It will be recalled that Mr Dale had already been listed "Clearout (Watched)" by Bartercard ten months earlier on 20 March 2000, but in respect of his earlier account. It is important not to overlook the fact that the listing on 20 March 2000 was in respect of that earlier account. 481 On 3 December 2001 Bartercard wrote a letter of demand for payment of certain cash transaction fees, and directing Mr Dale to trade out of his "Trade Debt" on pain of its becoming payable in cash. On 6 March 2002 Bartercard wrote to him referring to the letter of 3 December 2001, demanding payment of the balance outstanding of $1,399.08, and stating that his "credit rating [would] be adversely affected by notification to the CRAA" if he did not pay within seven days. 482 The critical date is 20 March 2000, and the critical question is whether Mr Dale has proved that as that date, it was inaccurate to record in his credit information file that he was a confirmed missing debtor of Bartercard in the sense defined by the Guide. 483 Veda points out that contrary to Mr Dale's submissions, Mr Dale did not say that he informed Bartercard of his new address. The highest that Mr Dale's evidence goes is his telephone conversation with his account manager, referred to above at [474] in which he requested a "breather" for two months. 484 The statements of account in evidence date from 31 March 2000. Veda submits that there is no evidence that Bartercard was aware of Mr Dale's Sydney address prior to the listing on 20 March 2000. As noted above at [475], Mr Dale himself said that he eventually renewed his association with Bartercard and that they appeared surprised about his location in Sydney. Veda submits that this reaction was not one to be expected if Bartercard had previously been given Mr Dale's new address in Sydney, and that it can be inferred that Veda was not aware of his Sydney address prior to the contact. 485 Mr Dale said that he was doing business at 64 Parramatta Road Glebe "probably from December, 99 and onwards". It seems that Mr Dale left his Brisbane address in December 1999 without giving Bartercard his new address at 64 Parramatta Road Glebe, although he did tell Bartercard in a general way that he was moving to Sydney and Bartercard had the Glebe address by 30 March 2000. There is no evidence, as distinct from assertion after the fact, of what attempts, if any, Bartercard made to contact Mr Dale between December 1999 and 20 March 2000. 486 Mr Dale gave evidence that he maintained at least one telephone number during the move, and remained in telephone and fax contact with Bartercard. In his affidavit he said: "My phone numbers, email and fax numbers remained the same". In cross-examination, however, he conceded that some did not remain the same, and it seems that ultimately his evidence was that only one remained the same, although he asserted that Bartercard could have contacted him. 487 In response to a letter from DR Capital, Bartercard asserted that it had sent proper notices of default to Mr Dale but there had been no response from him, and that Bartercard had attempted to contact him by telephone but that the telephone number was disconnected and mail sent to him had been returned. 488 I do not have confidence in Mr Dale's evidence that he was contactable by Bartercard from December 1999 when he moved to Sydney to 20 March 2000 when the listing was made. 489 Mr Dale submits that "there can be no basis" for a submission by Veda that he owed $1174. I do not understand why not. Mr Dale has not proved that he did not owe that amount. 490 In the state of the evidence, and in particular in the absence of any testimony from an officer of Bartercard or contemporaneous documents from Bartercard in the period from December 1999 to 20 March 2000, I am not satisfied that Bartercard did not make reasonable but unsuccessful efforts to contact Mr Dale in person or in writing in that period and did not confirm that he was a missing debtor. Accordingly, I am not persuaded think that it was inaccurate for Bartercard to have listed Mr Dale as "Clearout (Watched)" on 20 March 2000.

[54]

(4) Marker 492 As noted at [195] above, Schedule A to Mr Marker's TFASC refers to a listing by AAPT Ltd of a "Payment Default" on 19 December 2002. The amount shown was $186.00. The listing showed a "Latest Date" of 29 July 2004 and a "Latest Amount" of $166. Schedule B to Mr Marker's TFASC showed a status of "Paid" on or by 30 September 2004. The default was a Consumer Default. 493 Mr Marker submits that on his evidence, which he submits was not seriously challenged, the listed debt was not owed to AAPT, or at the very least that there was a dispute over it. Mr Marker submits that in these circumstances s 18E(1)(b)(vi) of the Privacy Act prohibited the inclusion of that personal information in his credit report. Section 18E is concerned with the inclusion of personal information in an individual's credit information file, not in a credit report relating to the individual. In the present circumstances, however, the credit reports obtained by subscribers will inevitably contain the personal information that is included in the credit information file. Therefore I put the distinction to one side for present purposes. Veda submits in relation to this claim that there is no evidence that Mr Marker was not listed after 60 days of being overdue. This point also seems to go to the requirements of s 18E(1)(b)(vi). 494 Section 18E(1)(b) does not prohibit a credit reporting agency from including personal information that proves to be inaccurate in a credit information file relating to an individual. As I said at [34] ff above, I construe s 18E(1)(b) (and (ba)) as relating to kinds or types or classes of information. Moreover, para (b) (and para (ba)) identify the kinds of personal information that may be included in a person's credit information file. 495 In any event, the correct starting point for dealing with the issue of inaccuracy is to ask what meaning the listing by AAPT would have conveyed to its readership of enquiring credit providers; and the second question is whether assessed according to that meaning, the listing was inaccurate. 496 In relation to the first question, the source of the meaning of "Payment Default" was the Guide. The relevance of s 18E(1)(b)(vi) is triggered when one asks whether the very fact of the listing would have signified to other subscribers that the "Payment Default" also satisfied the requirements of that provision. I think that subscribers would understand that it did. In this way, the statutory provision contributes to the meaning of the listing. 497 In relation to the second question, in his affidavit Mr Marker said that it was in around June 2004 during one of his unsuccessful applications for finance that he was told that he had a debt with AAPT. He said that he telephoned AAPT about the debt and subsequently paid it. It was paid on 30 September 2004. 498 In oral evidence Mr Marker said that in 2002 when he was living with his partner in Tamworth, he was approached by representatives of AAPT who persuaded him to switch his telephone service from Telstra to AAPT. He said that the representatives told him that they would arrange for his disconnection from Telstra's service, and he entered into a contract with AAPT. However, a month later he received a bill from AAPT which was identical to a bill that he received at about the same time from Telstra. Both bills recorded the same calls. This gave rise to a dispute between Mr Marker and AAPT. He said he telephoned AAPT's head office and complained and said that he would not pay. He told AAPT that he no longer wished to be connected through AAPT because it had done the wrong thing by him. Within the next month or two he received a letter of final demand from AAPT so he telephoned again complaining about the double billing. He said that he paid Telstra its bill, and that he received no further bills from AAPT, but remained connected with Telstra from which he continued to receive bills. 499 Mr Marker said that the letter of final demand called for payment of $186. He said that he paid the amount claimed, not because he believed he owed it, but simply to get rid of the default noted on his credit information file. Mr Marker said that he could not recall with any precision when he paid AAPT, although earlier in his examination in chief he had stated that he made the payment about nine months before the debt was listed as "paid" on 30 September 2004. 500 This evidence is at variance with Mr Marker's affidavit evidence that he became aware of the debt around June 2004. The "9 months" evidence suggests that he would have needed to pay it by January 2004. The letter (dated 26 May 2005) from the Portfolio Management Group, which had taken over the handling of the debt from AAPT, states that the debt had in fact been paid on 30 September 2004, although the listing was not updated to show this until some 8 months later, on 26 May 2005. 501 Mr Marker said that with the assistance of Mr Symes of DR Capital, he attempted, after he paid AAPT, to have the "Payment Default" listing removed. On 6 September 2005, DR Capital wrote to Veda asserting that the original listing by AAPT had been "without cause" and requesting removal of it. Veda contacted AAPT which responded to the effect that it could not "verify" the details relating to the listing of the default. Veda removed the listing on 12 September 2005. 502 The uncontradicted evidence of Mr Marker is that it was part of the original contractual arrangement between him and the representatives of AAPT that they (that is, in effect, AAPT) would cause him to be disconnected from Telstra's service. I infer that this undertaking to disconnect him was a condition of his contract with AAPT becoming operative: he would not have wished to take the service from both Telstra and AAPT, and I accept Mr Marker's evidence that the representatives of AAPT, rather than Mr Marker himself, undertook to arrange for cancellation of the Telstra service. 503 On my view of the evidence, Mr Marker did not incur a liability to AAPT and so there was no account that was "overdue" at all, and hence no Payment Default. In the result, I accept that it is established that the listing by AAPT was inaccurate (Veda removed it within six days of its becoming aware of the incorrectness and verifying the position with AAPT).

[55]

(5) McGary 504 As noted at [215] above, Schedule A to Mr McGary's TFASC particularised a listing of "Repossession Loss (After sale of the item)" by "GECOMM DF QLD DF 1040" (GE) on 30 July 2004. This was a commercial default listing. The amount shown was $16,582. As at 1 October 2004, a "Status" of "Settled" was shown. Accordingly, the period during which the alleged debt was listed as outstanding was less than three months. 505 I set out the meaning given in the Guide of "Repossession Loss (after sale)" at [88] above. I will treat the words "of the item" as surplusage that does not affect that meaning. 506 Mr McGary made two affidavits. His affidavit dated 27 February 2008 stated that on 19 July 2004, GE Commercial Corporation (Australia) Pty Ltd (GE), commenced a proceeding against Cycleogical Brisbane City Pty Ltd (Cycleogical), a company with which Mr McGary was associated (he was a shareholder and director), and Mr McGary, in the Magistrates Court of Queensland. The claim was in respect of a Retail Bailment Agreement into which Cycleogical had entered on 11 September 2002 with GE to provide finance for the purchase of stock and in respect of which Mr McGary had given a guarantee. The sum claimed was $15,365.50 plus interest and costs, amounting to a total of $16,581.92. This figure appears to correspond with the sum listed as Mr McGary's default. According to his affidavit, on or about 10 August 2004, Mr McGary filed a notice of intention to defend. On or about 1 October 2004 he settled with GE. As noted below, a deed of settlement appears to have been concluded no earlier than 13 October 2004. 507 In his affidavit dated 14 December 2007, Mr McGary said that GE had claimed some $16,800, but that Cycleogical had disputed this figure, alleging that only around $10,000 was owed. Mr McGary said that to the best of his memory GE never contacted him directly and advised him that he was liable as director, and that GE did not directly or indirectly demand payment from him as director. The Retail Bailment Agreement is not in evidence. In oral evidence, Mr McGary maintained that GE did not make a demand on him for payment pursuant to the guarantee, until it filed its statement of claim. 508 Pursuant to a request by him, Mr McGary received on or about 13 September 2004 a copy of his credit information file from Veda. There is in evidence a copy of a Settlement Deed entered into on or about 13 October 2004, between GE, Cycleogical, Mr McGary and Cycleogical Broadbeach Pty Ltd, by which Cycleogical agreed to pay GE an amount that was less than the sum claimed in the Magistrates Court proceeding. The Settlement Deed stated that upon payment, the proceeding commenced by GE would be discontinued. 509 Mr McGary submits that the evidence shows that GE did not comply with s 18E(1)(b)(ba) [sic - 18E(1)(ba)] of the Privacy Act because GE did not give him notice of Cycleogical's default that gave rise to his own liability. However, that provision is beside the point because s 18E(1)(ba) applies only in relation to consumer credit, and the credit obtained by the borrower, Cycleogical, from GE was commercial credit. 510 Again, it is important to note that in his TFASC, Mr McGary's allegation is that the listing was inaccurate. Has he proved that it was inaccurate for GE to represent on 30 July 2004 that after the sale of goods, he was indebted to GE for $16,582? 511 There was no dispute that Mr McGary guaranteed the obligations that Cycleogical had to GE; that Cycleogical owed GE at least $10,000; and that Mr McGary knew that if Cycleogical failed to pay, he was liable to do so and that GE would look to him for the amount outstanding. He also knew that that amount had been owing for "months" and that it had not been paid by the time Cycleogical commenced legal proceedings in July 2004. By that time, GE had repossessed some of the stock. There was a dispute about the amount of the debt - as noted above, GE commenced a proceeding for $16,581.92; elsewhere in his oral evidence, Mr McGary stated that GE had made a demand on Cycleogical for $15,000, but not for the $10,000 that Cycleogical claimed it owed; and that for this reason neither he nor Cycleogical felt they had an obligation to pay the $10,000. The dispute was ultimately resolved with Cycleogical agreeing to pay GE an amount approximately half way between what GE claimed and what Cycleogical conceded. 512 There is in evidence the course of correspondence between Mr Symes of DR Capital on behalf of Mr McGary and Veda, and of telephone communications between Veda and GE. DR Capital, on behalf of Mr McGary, requested removal of the listing on the ground that a "prescribed notice" had not first been issued to Mr McGary, but as already noted, such a contention misses the point since this was a Commercial Default. 513 When Veda contacted GE, GE's response recorded was, according to Veda's PAS note, "a/c is correctly made". Veda wrote to Mr Symes informing him of the result of Veda's investigation, and there is no evidence that either DR Capital or Mr McGary disputed the outcome. 514 It is not proved that the listing in Mr McGary's case was inaccurate. So far as the evidence goes, it may be that Mr McGary was indebted to GE for $16,582 after the repossession and sale of Cycleogical's goods. Mr McGary's submissions, that no demand was ever made on him as guarantor and that the proceedings were resolved for a lesser sum than that in respect of which the default was listed do not persuade me against this conclusion.

[56]

(6) Shields 515 As noted at [223] above, Schedule A to Ms Shields's TFASC particularised a "Payment Default" (not "Clearout (Watched)" as stated in particular 10(a)) listed by "FORD CREDIT NSW" on 9 March 2001. The amount shown was $16,598. The "Association Code" stated was "Guarantor" and the "Account Type" stated was "Leasing". Schedule B to the TFASC showed a "Status" of "Settled" as at 19 July 2004. This was a Commercial Default listing. 516 Ms Shields gave affidavit evidence that she had been a co-director, with her husband at the time, of a company called Richgrove Holdings Pty Ltd (Richgrove), and had acted as guarantor on applications for finance made by that company. She was co-guarantor with her then husband and co-director, Mr Malloch, in respect of a debt to Ford Credit, which she said was incurred by Richgrove to enable it to acquire a motor vehicle. The full name of the credit provider is Ford Credit Australia Limited, but I am referring to it simply as "Ford Credit". 517 The document containing the Finance Lease in relation to the vehicle and the Guarantee by Ms Shields is in evidence. It is dated 23 May 1997. The lessee is Richgrove. The document includes a declaration co-signed by Ms Shields that the vehicle was being hired wholly or predominately for business purposes. 518 Mr Symes's affidavit and its annexures showed that on 20 October 2000 Ford Credit wrote to Ms Shields advising that Richgrove had overdue payments up to 23 September 2000 of $962.14 and default charges of $111.98, making a total of $1,074.12. The letter asserted that Ms Shields was liable as guarantor if Richgrove could not pay, and advised that if payment was not made within seven days, Ford Credit might, inter alia, notify a credit reporting agency of the overdue payment. Also on 20 October 2000 Ford Credit wrote to Richgrove advising it of the same details of overdue payments and default charges, and giving the same warning concerning notification to a credit reporting agency. 519 Ms Shields knew that her husband (and co-director and co-guarantor) had invited Ford Credit to repossess the car and that he was paying Ford Credit afterwards. 520 On 23 January 2001 Ford Credit wrote to Ms Shields referring to a "repossession" on 19 January 2001 and advising that initial indications showed that a loss would eventuate after the sale of the vehicle. The letter invited Ms Shields to contact the writer to discuss a suitable repayment schedule and stated that it enclosed an "Asset & Liability Statement and Income & Expenditure Forms" for her to complete and return. The letter advised that Ford Credit intended to list the default on Ms Shields's personal file with Veda. 521 On 8 March 2001 Ford Credit wrote to Ms Shields advising that the vehicle had been sold for $21,800 and that the net proceeds of $21,002.50 had been credited to her account, leaving a deficiency of $16,598.06 for which she remained responsible. The letter advised that Ford Credit had lodged a default listing with Veda and transferred the file to Ford Credit's Loan Recovery Department with a recommendation that legal proceedings be commenced unless a mutually agreeable arrangement to pay the shortfall was made and kept. 522 It will be recalled that the listing took place on 9 March 2001 in an amount of $16,598. Ms Shields said that it was the letter of 8 March 2001 that first acquainted her with that figure. The earlier letter of 20 October 2000 had mentioned only $1074.12. The default was listed only one day after the letter of 8 March 2001 and specified the amount of $16,598. As previously observed, the amount mentioned in a listing does not have to be the amount (such as an instalment) in respect of which there was a default. It is not established that as at 8 March 2001 (or 9 March 2001) the amount that Ms Shields would have been liable to pay to clear the account was not $16,598.06. 523 There was an exchange of correspondence between Mr Symes of DR Capital on behalf of Ms Shields and Ford Credit containing assertions and counter-assertions which are not evidence of the facts asserted. 524 In March 2005 Ms Shields authorised DR Capital to represent her. After correspondence with Ford Credit, in which Ford Credit maintained that all required letters were sent to Ms Shields, DR Capital wrote to Veda on 1 September 2005 contending that the default had been listed without cause. The letter complained of a failure by Ford Credit to give to Ms Shields the notice referred to in s 18E(1)(ba)(iii) and (iv) of the Privacy Act and para 2.7 of the Code. In addition the letter alleged breach by Ford Credit of s 18E(8) of the Privacy Act. The letter requested Veda to remove the listing. However, the letter misconceived the position for reasons that I gave at [494] ff above in relation to Mr Marker, and at [509] ff in relation to Mr McGary. The provision allows a credit reporting agency to record, by way of exception to the general prohibition, information of the kind relating to consumer credit. 525 In her oral evidence Ms Shields said that she could not recall seeing the letter dated 20 October 2000 from Ford Credit addressed to her at her residential address. She gave similar evidence in relation to the letters dated 23 January 2001 and 8 March 2001 as well as the letter dated 20 October 2000 to Richgrove, although in some cases she went so far as to deny having seen the letters at all. Ms Shields explained this by saying that her husband had been taking her mail, as she discovered when she ceased to receive her bank statements. She said that she did remember telephoning Ford Credit and saying "We're in trouble and we can't afford to pay". 526 Ms Shields said that she did not dispute that she was liable as guarantor and she accepted that Richgrove's default in paying the leasing charges began in October 2000 (there is an obvious slip or error in the transcript's reference to 2002 at T179.34). She also accepted that the vehicle was repossessed in January 2001 and that there was a loss on the sale by Ford Credit which gave rise to a liability on her part as guarantor. She also agreed that ultimately she did pay the money or a portion of it on 19 July 2004. 527 Ultimately, there is no dispute that Ms Shields owed the money or that it was outstanding for a period well in excess of sixty days. Her complaint is that she did not receive the relevant notices from Ford Credit; but this complaint cannot properly be directed at Ford Credit (and even less so, Veda) given her explanation that her husband/co-director/co-guarantor was taking her mail. She does not dispute that Ford Credit sent the notices to her at her residential address. 528 Ms Shields also suggested that Ford Credit had refused to speak with her when she attempted to contact it, but I agree with Veda that this evidence is at odds with Ford Credit's attempts to contact Ms Shields. She said that she always knew that there were monies outstanding and owed to Ford Credit and she accepted in the witness box that Ford Credit had been attempting to contact her. She said that she had attempted six to eight times to contact Ford Credit in relation to "money" and "the vehicle that had broken down". 529 I also agree that there were significant issues of credibility surrounding Ms Shields's evidence. She gave evidence in chief that an application for credit to CMS Asset Solutions and an application for credit to QPF Finance had each been refused but she conceded in cross-examination that that evidence had been untrue. 530 There may have been some problem with the mail as between Ms Shields and her husband but I am not satisfied that she did not receive the letters from Ford Credit. Even if I am mistaken about this, it is of limited consequence. The notice requirement in s 18E(1)(ba) is not relevant to this commercial default. The Guarantee, by cl 3, stated that Ms Shields's liability was not impaired, released or discharged by the absence of any notice to her. Ms Shields has not led evidence inconsistent with the correctness of the listing. 531 It is not established that the listing by Ford Credit on 9 March 2001 of a Payment Default with an amount shown of $16,598 was inaccurate as alleged in Ms Shields's TFASC.

[57]

(7) Strange 532 I referred to Schedules A and B to Mr Strange's TFASC at [249]-[250] above. Schedule A shows that "CITY FIN LCS BRWNPLNS/SNYBNK" (City Finance) recorded on 2 June 2003 a "Clearout (Watched)" default showing an amount of $573.00. According to Schedule A, as at 11 February 2004 the amount had changed to $445. Schedule B showed that as at 6 April 2005 the "Status" was "Settled". 533 Apparently "City Finance" was a business name of Start Over Finance Pty Ltd, and I will refer to the listing credit provider as "Start Over". 534 In his affidavit of 19 December 2007, Mr Strange said that in or around July 2002 he took out a short term loan with Start Over. The loan contract between Mr Strange and Start Over is in evidence. It provided for 36 weekly repayments, amounting to a total loan repayment period of 252 days. The first payment was due on 24 July 2002, and in oral evidence Mr Strange acknowledged that the loan was due to be repaid fully by around March 2003. In his affidavit, Mr Strange said that he did not default on payment until he encountered marital problems and lost his job, and said that even then, he continued to maintain some form of payment toward the loan. In oral evidence, he said that those events occurred "probably about February 2003", and that he had arranged with Start Over to make the minimum payments as best he could and try to make up the arrears. In about November or December of 2002 Mr Strange moved house within Crestmead, Queensland. In oral evidence he said that he telephoned Start Over, informing them of the move and giving them his new telephone number. He said that he "would assume that [the conversation] would have been November/December of [2002]". 535 Mr Strange said in his affidavit and oral evidence that in or around February 2004 he moved interstate, living temporarily with his parents in Armidale NSW, but that his residential mailing address remained the same address in Queensland. He said that he saw no reason to notify Start Over of the change in his place of residence because the mail (addressed to him at Crestmead) was being forwarded to him at his parents' house and he always received it. He said that his mobile telephone number had not changed at any time. Mr Strange said in his examination in chief that he continued to make payments during this time. He accepted in cross-examination that he defaulted on payments of his loan, and that as at February 2004 he had been in default since March 2003, insofar as he had not paid back the full amount by that date. 536 Mr Strange said that between his relocation within Crestmead in November/December 2002 and February 2004 he had telephone conversations with Start Over concerning some missed payments. He placed those telephone conversations in around early 2004. Mr Strange said that in about February 2004 he received a telephone call from Start Over on his mobile telephone in relation to making a payment on the loan, in which he said the Start Over representative was accusing him of breaching a verbal agreement arising from his previous telephone conversations with Start Over. He refused to give Start Over his parents' address. He said that the telephone conversation became rather heated. He said that his view was that he should not give Start Over his parents' address because he was not residing there permanently. He said in his affidavit that that was the only contact he had with Start Over before it listed "Clearout (Watched)". That listing, however, occurred on 2 June 2003, some eight months before the alleged telephone conversation. Taken to this part of his affidavit in cross-examination, Mr Strange said that it was not correct, then that it was correct, then that he received the telephone call some time after the listing. 537 In Mr Strange's case as in others senior counsel for Veda took the applicant to assertions that were made in replies to letters written by Mr Symes of DR Capital on the applicant's behalf, with a view to showing that the applicant had not, through Mr Symes, denied certain assertions made against his or her interests. In the present case, Start Over's solicitor asserted in correspondence with Mr Symes that his client's instructions were that it had sent Mr Strange several notices to his Crestmead address of its intention to list his default with Veda, none of which notices were returned. 538 I found Mr Strange's evidence in cross-examination unsatisfactory. He repeatedly argued with the cross-examiner and demonstrated an unwillingness to confront and answer the questions that were put to him. He conceded that he received "several telephone calls" from Start Over yet wished to say he was "not necessarily" in default when he instructed Mr Symes to make an offer on his behalf in settlement of "any outstanding debt". He also said that once he learned that Start Over had listed him as a defaulter, he "was less than obliging to repay them". 539 In or about early 2007 Mr Strange obtained from "Baycorp Collections" a copy of a computer printout from its file relating to him. It revealed an entry on 2 June 2003 stating: This client has since left his place of work last week. His home number is disconnected, he was very rude to our employee last week. We have a postal address for him, I have yet to check if he is still at his home. He has had all relevant notices. Final Notice sent to him on 23/09/2002. His postal address is [a GPO Box]. There is no evidence one way or the other as to whether a check was carried out on 2 June 2003 as to whether to Mr Strange was still "at his home". 540 Mr Strange said that his home telephone number at that time was not connected, but that his mobile telephone was working. He said he did not receive a letter dated 23 September 2002 from Start Over - a reference to the letter referred to in the above extract. In his affidavit dated 19 February 2008, he asserted that he was never given any written notice of the intention of Start Over Finance to list him as a default. In his oral evidence, Mr Strange said he could not recall receiving notice from Start Over threatening to list him with Veda (then the Credit Reference Association of Australia) if he failed to pay. 541 Veda's internal records in relation to Mr Strange were very detailed. Unless otherwise indicated, the information referred to in the following eleven paragraphs is based on those records. 542 DR Capital, on behalf of Mr Strange, wrote to Veda on 1 September 2005, alleging that the default had been listed without cause and without the requisite notice being provided. This letter was in evidence. Veda consequently contacted Start Over which replied that the consumer had not been able to be located and that the entry was correct and should remain. 543 On 27 November 2006 Veda received directly from Mr Strange a letter disputing the listing on the basis that Start Over had his current address. Veda again contacted Start Over which confirmed that at the time of the listing mail was being returned, and that the clearout listing was correct and should remain. Veda advised Mr Strange that the listing would remain. 544 On 15 March 2007 Mr Strange took up the matter with "ISS Customer Relations" within Veda. Mr Strange advised that Start Over's Clearout (Watched) listing was incorrect and that he had never received any notice from Start Over. He said that he was providing a letter sent by Start Over to Veda, in which (according to the PAS file note) Start Over advised that the listing should be deleted to resolve the matter. This letter itself is not in evidence. Veda made further investigations with Start Over, which then informed Veda that it "could not substantiate the Clearout… unable to provide copy of the returned mail envelopes". As a result, Mr Strange's credit information file was amended to a "Payment Default" rather than "Clearout (Watched)". Veda advised Mr Strange of this on 16 March 2007, telling him it was unable to delete the listing. Veda said that as the account was 60 days in arrears, "the listing will remain on the file as a payment default". 545 On 13 April 2007 Mr Strange contacted Veda and advised that the amount set out in the listing was incorrect. Veda received a statement from Start Over's solicitor that the amount that was sixty days overdue at the time of the listing was only $390.65. A PAS file note seems to accept that this was correct. The amount was amended to $390 accordingly, and Veda advised Mr Strange of the amendment. 546 Veda submits that the amount listed need not be the amount recoverable at law, and refers to para 55C (pp 355-356) of the Code. That paragraph states, relevantly: "The amount to be reported will not necessarily be the amount recoverable at law, which may be affected by other contingencies not foreseen at the time of reporting". There is no suggestion in Mr Strange's case, however, that it was because of contingencies not foreseen at the time of reporting that the erroneous amounts were recorded. 547 On 14 May 2007 DR Capital made a request pursuant to s 18J(2) of the Privacy Act that there be included a statement on Mr Strange's file reading as follows: Despite, City Finance and their Solicitors instructions to remove the incorrect default from my credit report, Veda Advantage has refused to do so. I am currently seeking legal advice in regards to joining a class action taken by GMP Legal in the Federal Court of Australia against Veda Advantage. DR Capital's letter of request is in evidence. Veda's record states that the note was placed on Mr Strange's credit information file. In cross-examination Mr Symes agreed that the first sentence of his letter was untrue in that neither Start Over nor its solicitors had instructed or requested Veda to remove the listed default. 548 Notwithstanding Mr Symes's concession, I note that there is an entry on Mr Strange's PAS file that Start Over had written requesting that the default be removed. There is also a note in Mr Strange's PAS file, dated 14 May 2007: Recd email from John Brady(solicitor for City Finance). He advised to delete the df as they had conversation with Mr Strange and made it clear that if the matter can be dealt with by the lifting of the default, consumer will sign whatever document either we or you reasonably request him to sign to say that there will be no further action of any sort against his client, City Finance Franchising Pty. 549 On 15 April 2005, Mr Symes wrote to Start Over stating: "We request on behalf of our client that you accept the offer by our client to pay any outstanding debt on the proviso that all default listings are removed from his credit report". 550 On 15 May 2007 Mr Strange contacted Veda indicating that he was not happy with the responses Veda had given him and he asked that his matter be sent to Veda's legal team. On 29 May 2007 Veda sent to Mr Strange the legal team's reply to his further complaints. 551 On 30 May 2007 Mr Strange sent three emails to Veda responding to Veda's correspondence of 29 May. Mr Strange asserted that the listing of "Payment Default" was in error and contrary to a letter sent by Start Over to Veda. 552 On 8 June 2007 Veda's notes state that it wrote to Mr Strange indicating that there was insufficient evidence to establish that error; and, indeed, that Start Over had provided information substantiating the "Payment Default" listing. Veda acknowledged that Start Over had indeed requested the removal of the default, stating "when City Finance requested the removal of the default listing from your file we advised them this could only occur if the default itself had been listed in error, that is, if they had reported an account that was not in arrears at the time of listing. We asked them to give us details about any error that was made." Veda's PAS notes go on to state that no such details had been provided by Start Over. Veda invited Mr Strange to provide it with any further information that might establish that the listing was an error, and it referred him to the office of the Privacy Commissioner. 553 The evidence establishes that Mr Strange borrowed from Start Over in or around July 2002; that from March 2003 he was in default; that as at 2 June 2003 he had left his place of work; that he changed addresses within Crestmead, Queensland; that in or about February 2004 he moved, at least temporarily, to Armidale in New South Wales; and that he refused when requested by Start Over to provide it with his address there. 554 The critical time is 2 June 2003, the date of the listing by Start Over. Mr Strange was changing addresses in 2002 and 2004. I do not have confidence in him as a person who would be diligent in ensuring that Start Over always had his up to date address. It is not enough for a creditor to have a telephone number, facsimile number or email address. Knowing the physical whereabouts of the debtor is important for recovery purposes. 555 It is not established that by 2 June 2003 Start Over had not confirmed that Mr Strange was a missing debtor, notwithstanding reasonable efforts to contact him in person or in writing. It is not shown to have been inaccurate for the Clearout (Watched) listing to have been made on 2 June 2003. However, I accept that it was inaccurate for the amount of $573 (and later $445) to be shown. The Original Amount (and the Latest Amount) should have been only $390.

[58]

(8) Taylor 556 I referred to Schedule A to Mr Taylor's TFASC at [262] above. It shows that on 27 May 2002 BA Collections Factoring entered a Consumer Default of "Clearout Watched", showing an amount of $795.00. The question arises whether this listing was different from the Individual Consumer Credit Default Type "Clearout (Watched)". The entry shows against "Latest Reason" simply the two words "Clear Out". There is no such Individual Consumer Credit Default Type in the Guide. The entry also shows that as at 8 January 2003 the amount had been "Paid". 557 There are two Commercial Credit Default Report Types in the Guide: "Clearout (Watched)" and "Clearout (Not Watched)". There is also an "Individual Consumer Credit Default Report Type" "Serious Credit Infringement (Confirmed Clearouts only)". In my opinion the listings "Clearout watched" and "Clear Out" told enquiring credit providers that as at 27 May 2002 Mr Taylor had cleared out from his address and had been unable to be contacted by BA Collections Factoring, notwithstanding reasonable efforts on its part. Therefore I do not think that "Clear Out" or "Clearout (watched)" bore a meaning significantly different from "Clearout (Watched)". I note that the ICCR in respect of Mr Taylor that is in evidence, from which no doubt Schedule A was derived, listed "Clearout (Watched)" as a Consumer Default by Mr Taylor. 558 The present issue, therefore, is simply whether Mr Taylor has proved that it was inaccurate to record as at 27 May 2002 that BA Collections Factoring had properly satisfied itself that he was a missing debtor. 559 In his affidavit Mr Taylor said that on or around 7 June 2000 he drew three cheques on the ANZ Bank (ANZ) which he understood were presented on 9 June 2000 but not met for insufficient funds in the account. He said that ANZ charged him dishonour fees for an ANZ Savings Account that was overdrawn. Mr Taylor said he did not recall being notified by ANZ that he owed it money. At the time he was living in Queensland. 560 According to Mr Taylor's affidavit in or around August 2000 he relocated to Sydney. On or around 28 November 2002 he applied to St George Bank for a credit card and his application was declined. On or around 9 December 2002 he requested a copy of his credit information file from Veda and received a copy which revealed that he owed ANZ $795.00. 561 On around 2 February 2003 he contacted Alliance Factoring which had acquired the debt from ANZ. On or around 21 July 2003 he paid the debt in full in a sum of $871.28. 562 After making the payment he obtained from Veda on 28 July 2003 a copy of his credit information file which showed a double listing of his debt of $795.00 to Alliance Factoring. He states: The reported amount overdue was in the sum of $795.00 and this was due to a clearout. On 8 January 2003 Alliance Factoring 3 listed a payment default in the sum of $836.00. The listing was amended by Alliance Factoring 3 on 9 January 2003 and reported the amount overdue as $836.00 due to a clearout. 563 Over a period from late July 2003 to 19 March 2004 Mr Taylor requested, obtained and paid for five copies of his credit report which all showed the amount as unpaid. Finally on 30 September 2004 he received a copy of his credit report which showed the amount as paid. Mr Taylor states that if he had known that there was a debt owing to ANZ which was sold to Alliance Factoring, he would have notified Alliance Factoring of his change of address. 564 In oral evidence Mr Taylor said that the overdrawn account was a savings account. He said that he left Queensland and returned to New South Wales to live and went into a branch of ANZ and told it of his new address in Sydney. Mr Taylor produced two sheets being statements of account issued by ANZ to him in relation to an ANZ "Access Cheque" Account in his name, one for the period 21 August 2000 to 21 September 2000 and the other for the period 21 September 2000 to 11 October 2000. There is no reason to infer that the ANZ Access Cheque account was different from the "savings" account to which Mr Taylor referred. Whereas the former shows his Queensland address, the latter shows his Sydney address in the suburb of Cremorne. Both show debit balances. Mr Taylor said that he had obtained these documents from ANZ some time in about 2005. 565 Mr Taylor said that when he drew the cheques, he did not have a facility enabling him to overdraw. He said that his belief was that a customer was not entitled to overdraw on a savings account. 566 On 28 April 2005 Mr Taylor obtained from ANZ a copy of the terms and conditions that had governed his ANZ Access Cheque Account from the time he opened it in 1999. The terms and conditions provide that ANZ does not agree to provide any credit in respect of the account without prior written agreement, and that the customer must not overdraw unless such a credit facility is in place. However, if the customer requests ANZ to allow a withdrawal or payment that would overdraw the account, the request is an offer made by the customer to ANZ for credit equal to the overdrawn amount, and ANZ is not obliged to accept the offer, but may in its discretion do so, by allowing the individual withdrawal or payment to be made. There is provision for the charging of interest in that situation. If ANZ accepts the customer's offer, an independent "credit contract" comes into being. 567 In cross-examination Mr Taylor agreed that he knew in 2000 that his ANZ Access Cheque account was one on which he could draw cheques but he emphasised that he did not have an overdraft facility in place. He said that he did not know of any practice among banks allowing customers to overdraw accounts in the absence of an overdraft facility. He also said that he had not signed any documents pursuant to the Privacy Act about the disclosure of information or giving an authority to another party to make inquiries. However, Mr Taylor conceded that when he was speaking to Mr Symes of DR Capital in November 2004, he was aware that the debt to the ANZ had been incurred in 2000. 568 Importantly, DR Capital's initial letter written on behalf of Mr Taylor to Alliance Factoring on 10 November 2004 said that due to the extremely short time frame in which he had had to move back to Sydney, Mr Taylor had not had time to leave a forwarding address and that he had not been in a state of mind to do so due to illness. The letter also asserted that Mr Taylor had believed at the time that there was no need to notify ANZ of the change of address since "he had no loans or credit cards at the time". Mr Taylor agreed that this letter was written by Mr Symes based on instructions that he (Mr Taylor) had given to him. 569 In cross-examination, however, Mr Taylor said that at the time of instructing DR Capital he had forgotten that he had in fact told ANZ of his forwarding address. He said that it was only when Alliance Factoring told him it had taken an assignment of the debt from ANZ and he saw the ANZ bank statements that he saw to his surprise that he must have notified ANZ of his forwarding address after all. Mr Taylor said that he could not remember actually receiving the bank statements at his Cremorne address and could not recall whether the bank statements came to him at that address. He suggested that his lack of recall might be attributable to his state of ill health at the time. He could not now say whether or not he had read the statements. However, he insisted that he was not aware that he owed ANZ $706.35 until he first received a copy of his credit information file. He said that that was when he learned that Alliance Factoring had acquired the debt from ANZ. As mentioned above, this was in December 2002. Mr Taylor agreed that according to the letter that Mr Symes wrote on his behalf to Alliance Factoring, he had known of the debt to ANZ from December 2002 until it was paid on 14 January 2004. 570 DR Capital wrote to Veda on 1 September 2005 requesting that the "Clear Out" listing be removed because Mr Taylor had not been supplied with the required notice, and because the default had been listed without cause. Veda's PAS notes reveal that Veda contacted Alliance Factoring on 29 September 2005 to investigate DR Capital's claim. Alliance Factoring requested Veda to remove the listing after if had spoken to Mr Taylor, and Veda did so. (Mr Allison testified that if a subscriber tells Veda that a listing is in error, Veda automatically removes it at a charge of $25 to the subscriber.) Veda submits that the fact that Alliance Factoring requested the removal does not itself establish the listing was incorrect. Mr Taylor drew three cheques on his ANZ account on 9 June 2000 which placed the account into overdraft. He moved to Sydney two months later and then did not receive any notices requesting payment. He accepted that he had an obligation to pay ANZ and that the debt was outstanding for over a year. 571 The question which arises for decision is whether it was inaccurate to record on 27 May 2002 that Mr Taylor had cleared out. Do the bank statements establish that ANZ had his correct address as at 27 May 2002? Veda submits that "common experience is that documents presently issued by banks are usually updated with the current details". There is, however, no evidence of this practice before the Court; and if the two statements were indeed issued contemporaneously in 2005, it seems curious that the bank would update one and not the other. 572 I think that Mr Taylor has proved that it would have been inaccurate for the listings "Clearout watched" and "Clear Out" to be made on 27 May 2002. According to the ICCR in evidence relating to Mr Taylor, the listing was in fact "Clearout (Watched)". It was also inaccurate for that class of default to have been listed on 27 May 2002.

[59]

(9) Tyndall 573 Schedule A to Mr Tyndall's TFASC was described at [269]. It refers to ALLIANCE FACTORING 8 having, on 13 September 2002, listed a "Payment Default". The amount shown was $316. According to Schedule A, the debt was paid on or by 27 September 2002. Accordingly, it was listed as unpaid for only some 14 days. 574 Mr Tyndall gave oral evidence that in 1999 he was living at an address in Queanbeyan, where there was a Telstra telephone account in his name. He subsequently moved to an address at Griffith in the Australian Capital Territory, where he lived with some friends. At the time of moving he telephoned Telstra giving his account number and providing Telstra with his new Griffith address to which he requested that all correspondence be forwarded. He stated that he gave money to his flat mate in Queanbeyan who was to pay any outstanding amounts. 575 When he moved into the house at Griffith, ACT there was already a telephone there connected to Telstra, and he phoned Telstra requesting that his name be added to the account as a user, "basically, a resident of the house". At Griffith, Mr Tyndall and his friends received telephone bills from Telstra regularly but Mr Tyndall said he did not receive any bills there in relation to his former Queanbeyan address. 576 Subsequently he moved to an address at Bruce, also in the ACT. He moved in there with a friend and with his girlfriend. As before, he notified Telstra of his new address The telephone there was in his name, while the others were listed as residents. 577 When living at the Bruce address, Mr Tyndall received a reminder or telephone bill in relation to the Griffith address. He said that the reminder said "this is your old bill, please pay that and here's your new one". He said that he and his friends divided it up and that he paid it by the due date which he thought was "September". This testimony is not clear in view of the fact that Mr Tyndall referred to two bills - an old one and a new one. In his oral evidence he said that he rang Telstra and said "Thanks very much, I'll pay it". This suggests that this was a somewhat unusual payment arrangement and therefore that he was referring in his earlier evidence to paying the old bill. 578 Mr Tyndall received shortly afterwards a letter on a black and white letterhead from "Alliance Factoring and Baycorp" asserting that he owed $300 odd for a telephone. He said he thought it must have been for "our previous address"; that is, in Griffith, for which he had already made arrangements to pay Telstra. He said that he and his housemates looked at the bill for that address and thought they would pay it at its due date, and they did so. 579 Later when he was going through receipts relating to the house, he noticed that there was still a Telstra bill. He said that he telephoned Telstra to confirm that he had paid that bill, and said "that now clears [the Griffith address]", and Telstra agreed. He said that he then noticed that the numbers and amounts on it were "different" so he telephoned the number up the top there", which, I assume, was the number of Alliance Factoring. He said he told the person to whom he spoke that he did not know what the bill was for,and that the person told him that the outstanding amount was for a Queanbeyan telephone. The person told him that Alliance Factoring had taken it over from Telstra. 580 Mr Tyndall said that he paid the bill to Alliance Factoring two to three weeks after his initial conversation with the person there. In fact, in a letter to DR Capital dated 8 December 2004, Alliance Factoring notes that he paid it on 26 September 2002. Mr Tyndall said that prior to moving to the Bruce address he had never been called upon to pay any sum in relation to the Queanbeyan address. 581 There is evidence that Alliance Factoring was a wholly owned subsidiary of Veda and that it provided a court enforceable undertaking to the Australian Competition and Consumer Commission on 17 August 2005, later varied on 27 February 2007, concerning its debt collection practices and procedures in attempting to collect debts it purchased from Telstra in 2002 and 2003. The evidence is irrelevant to the issue of accuracy or inaccuracy of a particular default listing. 582 DR Capital wrote to Veda on 2 December 2004 and 1 September 2005 requesting that the default be removed on the basis that Mr Tyndall had not been given due notice and that the default had been listed without cause. The letter of 2 December 2004 stated that the notice regarding the debt was received on 25 August 2002 but the default was listed on 13 September; and that therefore the 30 day notice period specified in the Code had not lapsed. 583 Veda's PAS notes state that on or shortly before 28 September 2005 Veda contacted Alliance Factoring which requested that Veda remove the listing as it had been listed just after correspondence had issued. The "Payment Default" listing was then removed by Veda. 584 The evidence suggests, however, that the listing on 13 September 2002 was correct. Mr Tyndall said that he received a notice from Alliance Factoring about the debt in August 2002. No doubt that was the letter on the black and white letterhead which Mr Tyndall said claimed "$300 odd" for a phone. Although the letter was not produced, Mr Tyndall accepted that it was dated 13 August 2002 and threatened that if the amount of $316 was not paid within fourteen days of that date, the default might be listed with Veda. Mr Tyndall stated that he received the letter on 25 August 2002, a date he recalled because of its proximity to an Australian Rules Football Grand Final. 585 Unfortunately, Mr Tyndall made an incorrect assumption that the letter related to another debt. He said, with commendable frankness: As I said, sir, I honestly thought it was a different Telstra bill and so that's why I put it to the side. 586 He said that he accepted now that he was mistaken about that. He accepted that the amount claimed was owing and that when he paid it on 26 September 2002, it had been outstanding for two years. Accordingly, he accepted that at the time of the listing only some 14 days earlier, he was at least 60 days overdue in paying it: see s 18E(1)(b)(vi)(A) of the Privacy Act. 587 I am not persuaded, in the absence of compelling evidence either way, that Telstra and Alliance Factoring had not by then taken steps to recover the sum of $316 by sending to Mr Tyndall statements of account and letters of demand. Indeed, I accept Veda's submission that the condition laid down in s 18E(1)(b)(vi)(B) of the Privacy Act was also satisfied: see [578] and [584] above. 588 It is not shown to have been inaccurate for Alliance Factoring to have listed the "Payment Default" on 13 September 2002 in respect of the amount of $316.

[61]

Section 109 of the Constitution and the Defamation Act 1974 (NSW) 590 I referred to subpara (v)(i) of Veda's defence at [114] above. That subparagraph is directed to the alleged constitutional invalidity of, relevantly, s 9 of the Defamation Act 1974. The cause of action in defamation arises under that section, although the section invokes terms and concepts that had developed as part of the common law. 591 As noted at [3] above, Veda gave to the Attorneys-General of the Commonwealth, the States and the Territories notice under s 78B of the Judiciary Actof a matter arising under the Constitution or involving its interpretation, as a result of which the Attorney-General for the State of New South Wales sought leave to intervene and was added as second respondent. 592 The notice identified the matter as being: Whether the laws of each state and territory of Australia in so far as they purport to provide or create a cause of action in defamation or negligence against the Defendant, being a credit reporting business within the meaning of the Privacy Act 1988 (Cth) of the Commonwealth of Australia, are inconsistent with the said Privacy Act and specifically with Part IIIA thereof and whether, therefore, each such law is invalid to the extent of the inconsistency by reason of section 109 of the Constitution. 593 Veda filed a Notice of Motion seeking an order that the proceedings be permanently stayed or dismissed. Although the Notice of Motion did not state the ground relied on, apparently it was the alleged s 109 inconsistency. One day of the hearing was set aside to deal with the issue of constitutional invalidity the subject of the s 78B notice and of the motion. On that day counsel appeared for the Attorney-General for New South Wales to contest Veda's submissions. 594 The parties are agreed that I ought not to decide the constitutional question unless I first find that a cause of action under the Defamation Act has been made out. The theoretical availability of such a cause of action does not in itself result in inconsistency for the purposes of s 109: see State of Victoria v Commonwealth (1937) 58 CLR 618. 595 Since I have decided to dismiss all nine proceedings including the claims of defamation, on other grounds stated above, I will say nothing further on the present issue.

Parties

Applicant/Plaintiff:

Dale

Respondent/Defendant:

Veda Advantage Information Services and Solutions Limited

Legislation Cited (13)

Pt IIIA Defamation Act 1974(NSW)ss 9, 22

Defamation Act 1889(Qld)s 16

Defamation Act 1974(NSW)

Trade Practices Act 1974(Cth)

By the Defamation Amendment Act 2002(NSW)

Defamation Amendment Act 2002(NSW)

Privacy Act 1988(Cth)

Limitation Act 1969(NSW)ss 14, 14B

Judiciary Act 1903(Cth)

Corporations Act 2001(Cth)

Evidence Act 1995(Cth)s 59(1).

Defamation Act 2005(NSW)

Federal Court of Australia Act 1976(Cth)

Cases Cited (16)

Dale v Veda Advantage Information Services and Solutions Limited [2009] FCA 305

Privacy Act 1988 (Cth) Pt IIIA Defamation Act 1974 (NSW) ss 9, 22 Defamation Act 1889 (Qld) s 16 Limitation Act 1969 (NSW) ss 14, 14B Federal Court Rules O 13 rr 2, 3A, 7 Adam v Ward [1917] AC 309 cited Baldry v Jackson [1976] 2 NSWLR 415 cited Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366 followed Bunt v Tilley [2006] 3 All ER 336 referred to Cubby, Inc v CompuServe Inc 776 F.Supp. 135 (1991) cited Dun v Macintosh (1906) 3 CLR 1134 discussed Godfrey v Demon Internet Ltd [2001] QB 201 cited Gillett v Nissen Volkswagen [1975] 3 WWR 520; 58 DLR (3d) 104 cited Howe and McColough v Lees (1910) 11 CLR 361 followed Informa Confidential Reports (Pty) Ltd v Abro [1975] (2) S.A. 760 cited Jain v Trent Strategic Health Authority [2009] 2 WLR 248 cited London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15 discussed Macintosh v Dun (1905) 5 SR (NSW) 708 discussed Macintosh v Dun (1908) 6 CLR 303; [1908] AC 390 distinguished OzEcom & Anor v Hudson Investment Group & Ors [2007] NSWSC 719 discussed Perre v Apand Pty Ltd (1999) 198 CLR 180 cited Petition of Retailers Commercial Agency Inc, 174 NE 2d 376 (Mass., 1961) cited State of Victoria v Commonwealth (1937) 58 CLR 618 cited Sullivan v Moody (2001) 207 CLR 562 followed Tame v New South Wales (2002) 211 CLR 317 followed Toogood v Spyring (1834) 1 Cr M & R 181 (149 ER 1044) discussed Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports ¶81-127 cited Vintage Developments Pty Ltd v GHD Pty Limited (No 2) [2006] FCA 1437 distinguished Watt v Longsdon [1930] 1 KB 130 referred to Weldon v Neal (1887) 19 QBD 394 cited

(2004) 218 CLR 366

Cited By (2)

Adelaide Concrete Cutting & Drilling Pty Ltd v Marino

Sarina v O'Shannassy