Victorian Civil and Administrative Tribunal|2010-12-22

Slater v Veda (Civil Claims) [2010] VCAT 2083 (22 December 2010)

Practice and Procedure - application for claim to be dismissed or struck out for lack of jurisdiction or as an abuse of process - principles to be applied - care to be exercised - allowance for defects to be remedied -tribunal has only jurisdiction conferred by statute - claim struck out where outside jurisdiction or unable to succeed - VCAT Act section 75

Consumer and trader dispute - purchase or supply of goods or services - claimed breach of contract of supply is a consumer and trader dispute - claims not consumer and trader dispute where no purchase or supply of goods or services

Misleading and deceptive conduct - protection accorded an information provider -applicable to credit reference agency - Fair Trading Act 1999, sections 9, 32, 107,108,159

Commonwealth Bank of Australia (ACN: 123 123 124) (withdrawn)

Veda Advantage Information Services and Solutions Ltd (ACN: 000 602 862)

Slater v Veda (Civil Claims) [2010] VCAT 2083

The claim as against the third Respondent is withdrawn.
The fourth Respondent's application for the claim as against it to be struck out is dismissed.
By 31 January 2011, the Applicant may file amended Points of Claim against the fourth Respondent.
The claim as against the second Respondent is dismissed, subject to order 5.
That part of the claim as against the second Respondent which appears in paragraph 19(a) and (e) of the Applicant's Points of Claim dated 7 May 2010 is struck out and the Applicant has leave until 31 January 2011 to file new Points of Claim against the second Respondent concerning the issue raised in those paragraphs.
The second Respondent remains an interested party and the principal registrar is directed to amend the register accordingly.
Costs (including those of the third Respondent) reserved.
The principal registrar is directed to fix a hearing of the claim as soon as possible after 31 January 2011.
Liberty to apply.

On 28 September 2010, I heard the applications of the second, third and fourth Respondents for the Applicant's claims against them to be struck out. The facts as stated to me and apparent from the file were as follows.
In May 2008, the Applicant, who is a barrister, in the course of arranging his professional indemnity insurance with the fourth Respondent, arranged to pay for the insurance by monthly instalments. This apparently involved a loan from the fourth Respondent to the Applicant. He omitted to make some payments under that arrangement, apparently because reminder notices did not reach him. The fourth Respondent after unsuccessful attempts to contact him over the December to January period at the beginning of 2009 placed a default listing with the second Respondent, which runs a credit reference agency. It was some time before the Applicant became aware of this and when he did it was raised by his bank.
On 2 November 2009, the Applicant filed a claim against the bank and the second and third Respondents. Originally he sought injunctive relief. At the first hearing at this tribunal on 12 November 2009, orders were made joining the fourth Respondent. There were a number of directions hearings. The claim was withdrawn as against the bank. The Applicant filed Points of Claim against the fourth Respondent on 7 May 2010 and at the direction of the tribunal a further shorter document summarising his claim against the fourth Respondent on 24 June 2010.
On 9 June 2010, the second and third Respondents applied for the claim as against them to be dismissed. On the same date the fourth Respondent applied for the Points of Claim against it to be struck out.
At the hearing before me on 28 September 2010, the Applicant sought and was granted leave to withdraw the claim as against the third Respondent. The third Respondent asked that the question of its costs be reserved and I so ordered.
There remained for consideration therefore the applications of the second Respondent and the fourth Respondent for the claims against them to be struck out or dismissed.
Following that hearing on 28 September 2010, the second Respondent filed further submissions without leave. The Applicant wrote to the tribunal indicating that he considered the tribunal should ignore those submissions and that he intended to do so. I ordered that the Applicant could file submissions in reply but he has not done so. In those circumstances, I have considered the late submissions, as far as they were relevant.
Before considering the applications for strike out and dismissal, it is necessary to set out how the claim is defined. The Points of Claim filed with the Applicant's claim on 2 November 2009 did not name the fourth Respondent as a party. They named the Applicant's bank, but that part of the claim has since been withdrawn. They also named the second and third Respondents. As against the second Respondent, the Points of claim said:
1. The plaintiff claims loss and damage against the Second Defendant for -
  - (a) the causal and predictable destruction of his banking relationship with the First Defendant caused by the Second Defendants misrepresentation as to the creditworthiness of the plaintiff and/or alternatively negligence by the Second Defendant in making statements without regard as to the truth of their content;
  - (b) Professional time lost by the plaintiff closing his accounts and opening new accounts being half a day at 43300 per day;
  - (c) Pain and suffering, embarrassment and indignation and inconvenience caused by the misrepresentations of the Second Defendant.

The plaintiff claims loss and damage against the second defendant for-
- (a) making a false and misleading statement to the first defendant
- (b) being negligent as to the accuracy of information propagated by it and negligently propagating the same to the second defendant cause the destruction of his banking relationship with the first defendant
- (c) negligently and/or deliberately failing to communicate with or answer correspondence sent it by the plaintiff taking issue with the falsity of information propagated by the second defendant to the first defendant without regard to truth or falsity
- (d) taking the sum of $32.95 from the plaintiff's credit card with no intention of supplying a credit report ordered from the second defendant
- (e) failing and/or neglecting to supply the said credit report in breach of contract
- (f) professional time lost by the plaintiff closing his accounts and opening new accounts being half a day at $3300 per day
- (g) pain and suffering, embarrassment and indignation and inconvenience caused by the misrepresentations of the second defendant.

When the fourth Respondent was joined to the proceeding by order of the tribunal, the Applicant was directed to file Points of Claim against it. He did so on 7 May 2010. These Points of Claim were discursive in nature. They mentioned issues of jurisdiction, contractual privacy, misleading and deceptive conduct and equitable remedies. At paragraph 12 they said "Section 18E (8) (c) of the Privacy Act 1988 codifies this conceptually, but the Privacy Act is worthless as it creates no means of private enforcement. The Privacy Commissioner is impotent. He cannot make any binding determination: section52IB".
Paragraph 33 of the Points of Claim set out the Applicant's claims against the fourth Respondent and paragraph 39 said "The applicant reserves the right to add to these points as discovery progresses..."
On 11 June 2010, the tribunal ordered that the Applicant file and serve a document setting out "clearly what claim is being made against the fourth Respondent, the facts which give rise to the claim and the orders or relief which the Applicant is asking the Tribunal to make or grant against the fourth Respondent".
On 24 June 2010, the Applicant filed the further document, which has been treated as his intended claim against the fourth Respondent. It mentioned breach of an express or implied contractual term, misleading and deceptive conduct, and claimed that the second and third Respondents had aided and abetted the fourth Respondent's alleged breaches of the Fair Trading Act 1999.
In their applications, both the second Respondent and the fourth Respondent relied upon section 75 of the VCAT Act, which relevantly provides:

"(1) At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion-

(a) is frivolous, vexatious, misconceived or lacking in substance; or

Recently, in Worldwide Enterprises Pty Ltd and Anor v Westpac Banking Corporation (Civil Claims) [2010] VCAT 2010, His Honour Vice-President Judge Misso conveniently set out (at paragraph 11) the principles gleaned from various authorities and from cases at VCAT which are to be applied in considering orders under section 75. The principles are relevant to both the application of the second Respondent and that of the fourth Respondent so I set them out in full here as follows:
- The onus is on the respondent to establish that the discretion should be exercised in its favour to either summarily dismiss or strike out all or any part of the proceeding.
- In the discharging of that onus the respondent must establish that there is no real question to be tried or where the tribunal is satisfied that the proceeding is undoubtedly hopeless, obviously unsustainable in fact or in law or bound to fail. Fancourt v Mercantile Credits Pty Ltd [1983] HCA 25; (1983) 154 CLR 87 at 99; Lay v Alliswell Pty Ltd (2001 VSC 385 at paragraph 14; State Electricity Commission of Victoria v Rabel [1998] 1 VR 102, and Forrester v AIMS Corporation [2004] VSC 506

The standard which the respondent must achieve in the discharge of the onus has been variously described as requiring the exercise of great care, it being "clear" that there was no question to be tried; Fancourt (supra) that "great caution" should be exercised by the tribunal in determining whether there is no real question to be tried; Taitapanui v HIA Insurances Services Pty Ltd [2002] VCAT at paragraph 8 that such an application is "a serious matter" and the onus is "a heavy one"; Burke v Victoria [2002] VCAT 1397 at paragraph 3 that the tribunal should be satisfied that it is "very clear indeed" that the claim is hopeless, unsustainable and bound to fail, Arrow International Australia Pty Ltd v Indevelco Pty Ltd [2005] VCAT 306 and that the onus is a "high one" Zaparenko v Perpetual Trustees Victoria Ltd [2006] VCAT 2147 at paragraph 11.
The tribunal is obliged to proceed on the assumption that the applicants will be able to prove each fact alleged in their claim. Klona v Cummins Engine Co Pty Ltd [2002] VCAT 733 .
The application is interlocutory in nature. The tribunal, therefore, should not proceed to entertain an application pursuant to section 75 unless the applicants indicate that the whole of their case is contained in the material which they have put before the tribunal. State Electricity Commission of Victoria v Rabel (supra) .
If the application is based upon the applicant's defective formulation of the claim, then the tribunal must consider that the tribunal is not a court of pleading. A failure to particularise a claim does not of itself give foundation to a finding that the proceeding is frivolous, vexatious, misconceived or lacking in substance or is otherwise an abuse of process. Barbon v West Homes Australia Pty Ltd [2001] VSC 405 at paragraph 16-17.

The fourth Respondent applied for the Points of Claim as against it to be struck out for want of jurisdiction under section 75 of the VCAT Act 1998. It contended that the claim is in effect an attempt to claim for breach of the (Commonwealth) Privacy Act 1988 and that it is without foundation in law.
It is well established that VCAT has only the jurisdiction which is conferred upon it by statute. See for example, Wizardry Kennels v Semtech Breeding Services [2006] VCAT 2368. If indeed the claim is outside the tribunal's jurisdiction then it would be an abuse of process for it to proceed.
The Fair Trading Act 1999 (FTA), under which the claim was made, confers upon VCAT two relevant categories of jurisdiction. In Part 9 of the Act, section 108 provides: that the tribunal may hear and determine a "consumer and trader dispute" -

"108 Settlement of consumer and trader disputes or small claims

(1) The Tribunal may hear and determine a consumer and trader dispute.

(2) The Tribunal may do one or more of the following in relation to a consumer and trader dispute -

(a) refer a dispute to a mediator appointed by the Tribunal;

(i) found to be owing by one party to another party;

(ii) by way of damages (including exemplary damages and damages in the nature of interest);

(d) declare that a term of a contract is, or is not, void;

(e) order the refund of any money paid under a contract or under a void contract;

(f) make an order in the nature of an order for specific performance of a contract;

(j) order a party to do or refrain from doing something.

Example: If the supplier has default listed the purchaser with a credit reference agency in relation to a perceived debt owing, the Tribunal, in addition to declaring that there is no debt owing, may order the supplier to contact the credit reference agency and have the default listing removed from the purchaser's credit record.

(3) In awarding damages in the nature of interest, the Tribunal may base the amount awarded on the interest rate fixed from time to time under section 2 of the Penalty Interest Rates Act 1983 or on any lesser rate it thinks appropriate."

(1) A person who suffers loss, injury or damage because of a contravention of a provision of this Act may recover the amount of the loss or damage or damages in respect of the injury by proceeding against any person who contravened the provision or was involved in the contravention.

(1A) Except in accordance with section 107(3), a person may not recover in the Tribunal an amount for any personal injury suffered.

(2) A proceeding under this section may be brought before the Tribunal or in any court of competent jurisdiction.

(3) A proceeding under subsection (1) must not be commenced more than 6 years after the date on which the cause of action accrued."

Those are the only relevant categories of jurisdiction, so any claim which is neither a consumer and trader dispute nor a claim for breach of a provision of the FTA will not be within the tribunal's jurisdiction.
Section 107 defines "consumer and trader dispute" -

(1) In this Part a consumer and trader dispute is a dispute or claim arising between a purchaser or possible purchaser of goods or services and a supplier or possible supplier of goods or services in relation to a supply or possible supply of goods or services.

(2) For the purposes of subsection (1), a dispute or claim includes any dispute or claim in negligence, nuisance or trespass that relates to the supply or possible supply of goods or services but (except as provided in subsection (3)) does not include a dispute or claim related to a personal injury.

(3) For the purposes of subsection (1), a dispute or claim includes a claim related to personal injury if -

(a) the claim is for an amount not exceeding $10 000; and

(b) the claim relates to a supply or possible supply of goods or services; and

Accordingly, if there is a dispute between the Applicant and the fourth Respondent in relation to the Applicant's purchase of services from the fourth Respondent, then that dispute is a consumer and trader dispute and is within the tribunal's jurisdiction.
The Applicant's claim concerns the publication of information about him, not the insurance provided by the fourth Respondent. The Applicant claims that the fourth Respondent breached an implied term of the contract between them by publishing information about him via the second Respondent that the fourth Respondent breached relevant common law principles applicable to the contract between them by disclosing his confidential information. On the face of it, that is a consumer and trader dispute. It is a dispute which arises in relation to the supply of services by the fourth Respondent. According to the principles outlined above for considering applications under section 75 of the VCAT Act 1998, I should not strike out the claim unless satisfied that it is bound to fail.
The Applicant also claims (in paragraph 21 and following of the points of claim dated 7 May 2010) that clause 7 of his contract with the fourth Respondent, which said that information about his insurance would be provided to the Legal Practitioners Liability Committee and the Victorian Bar, amounted to misleading and deceptive conduct. He said this was so because he was not informed of the possibility of publication to any other party. He claims loss and damage by the publication to other parties. On the face of it, this is a claim under section 159 of the FTA as it alleges loss and damage caused by an alleged breach of the prohibition (in section 9 of that Act) of misleading and deceptive conduct.
Thus, on the face of it, the Applicant's claim against the fourth Respondent is within the tribunal's jurisdiction.
The fourth Respondent contended that the Applicant is in effect attempting to make a claim at VCAT for a breach of the (Commonwealth) Privacy Act 1988. It was common ground that VCAT has no jurisdiction under that Act. The fourth Respondent further contended that the Privacy Act 1988 "covers the field" so that the Applicant is constitutionally barred from making in this tribunal a complaint which could have been made to the Commonwealth Privacy Commissioner.
While the Applicant in his Points of Claim dated 7 May 2010 did, as I have outlined, mention the (Commonwealth) Privacy Act 1988, he referred to it, in my view, as a way of explaining why he was making this application, namely that he considered his rights under that Act to be unenforceable. Whether or not he is correct in that, I was not persuaded that jurisdiction granted to VCAT under the FTA to deal with consumer and trader disputes and breaches of the FTA was ousted by the Privacy Act. Here the applicant claims that the fourth Respondent has breached its contract with him by publishing (or causing to be published) information about him. He is not alleging a breach of the Privacy Act. The claim is for breach of contract and misleading and deceptive conduct.
As to whether the claim against the fourth Respondent is without foundation in law, it is necessary to consider the Points of Claim dated 24 June 2010. The Applicant referred to breach of express or implied terms, disclosure of confidential information in breach of common law obligations under the contract and alleged misleading and deceptive conduct causing loss. He said during the hearing before me that he seeks to amend his Points of Claim to refer to the accuracy of the information published about him.
These elements of the Points of Claim were not aired extensively before me. While I consider that the Applicant has not yet put his claim very clearly, there is sufficient there for his meaning to be understood. I note that the fourth Respondent in its submissions to me did not attempt to address the likely success of those elements of the claim. Neither shall I. It is sufficient to say without expressing any view as to the likely success of those contentions that they are within the tribunal's jurisdiction and that the fourth Respondent has not demonstrated that they are hopeless or bound to fail.
If there were absolutely no legal basis for the claims, I would strike them out, but a brief consideration of the law indicates that the issues raised by the Applicant, depending on the evidence, may be made out. Terms are sometimes implied into contracts in order to reflect the presumed intention of the parties by providing business efficacy, or on the basis of a course of previous dealings, or from custom or usage, or to complete the contract. A term may also be implied without any reference to the intention of the parties, such as a term implied as a legal incident of some contracts, a term implied by a general duty to co-operate, a term implying duties of good faith, fair dealing and reasonableness or a term implied by statute. Similarly, the claim for misleading and deceptive conduct is not obviously an impossible one.
In these circumstances I am not persuaded I should strike out the Points of Claim against the fourth Respondent and will give the Applicant a short period to amend his Points of Claim should he wish to do so.

The second Respondent contended that the tribunal lacks jurisdiction under Part 9 of the FTA because there is no consumer and trader dispute between it and the Applicant.
Apart from purchasing a copy of his credit file from the second Respondent upon discovering that there was a credit default listed with the second Respondent against his name, the Applicant did not purchase any goods or services from the second Respondent. There is no consumer trader dispute without the purchase of goods or services, so it is only that purchase of a copy of his credit file which could be within the tribunal's jurisdiction under Part 9. Any part of the Points of Claim against the second Respondent which does not refer to that purchase must be dismissed for lack of jurisdiction.
The Applicant, in his submissions at the hearing on 28 September 2010, contended that the services purchased from the second Respondent when he purchased a copy of his credit file were subject to implied statutory warranties that the data supplied "would be accurate, would not be negligently complied(sic) or obtained in breach of an obligation of confience (sic), would only be obtained by lawful means, as opposed by breach of confidence or inducement of a breach of contract with a third party by a conflicting contract" or alternatively would be rectified for inaccuracy and carried an implied warranty that they would not be misleading, in breach of confidence, etc.
Essentially, the Applicant contended that his purchase of a copy of his credit file created a duty or warranty or obligation or contractual condition that the second Respondent would supply to him only data which was accurate, not obtained in breach of confidence, etc. There is a logical flaw in this contention. Nothing about the purchase of a copy of material already published can impose such duties, obligations warranties or conditions on the published material already in existence. The premise of purchasing a copy is that the Applicant purchased a copy of whatever information was already in existence and published. His purchase of a copy could not change the nature of what was already published, could not create new duties where there were none before.
The Applicant's claims against the second Respondent were set out in paragraphs 17 and 19 of his Points of Claim (quoted above). They referred in paragraphs 19(d) and (e) to the contract for supply of the Applicant's credit file, but did not suggest how any loss or damage was caused to the Applicant by the alleged breach of that contract. Therefore, although the Applicant is not precluded from filing further Points of Claim on that single issue, the present Points of Claim, interwoven as they are with matters which are outside the jurisdiction of this tribunal, must be struck out.
The Applicant also invoked against the second Respondent the tribunal's jurisdiction under section 159 of the FTA in respect of claims for loss or damage flowing from a breach of the FTA. He alleged misleading and deceptive conduct, which would be a breach of section 9 of the FTA. The second Respondent contended that such a claim could not possibly succeed against it because it was protected under section 32 of the FTA. That section provides -

(1) Sections 9, 10, 11, 12 and 20 do not apply to a publication which is made by an information provider in the course of carrying on the business of providing information unless the publication -

(i) goods or services supplied or the possible supply of goods or services; or

by the information provider or, if the information provider is a body corporate, a related body corporate.

information provider means any of the following -

(a) a person who holds a commercial television broadcasting licence under the Broadcasting Services Act 1992 of the Commonwealth;

(d) any other person who carries on the business of providing information."

The second Respondent submitted that it is an information provider as defined in subsection (2), specifically paragraph (d) and that section 9 of the FTA therefore does not apply to its activities as a credit reporting agency.
The Applicant on the other hand contended that the second respondent is not an information provider as defined. He submitted that section 32(2)(d) should be read ejusdem generis with the preceding paragraphs.
The ejusdem generis rule is conveniently stated in Halsbury's Laws of Australia thus:

"[385-255] While the court will always begin the task of statutory construction with the view that words should be given their ordinary meaning, it is willing to assume that it may have been intended by the legislature that a general word that appears at the conclusion of a list of particular words, forming a class or genus, may well be limited by the words that appear in that class or genus."

The rule is a particular instance of the general rule of statutory construction that words should be read within their context. In TW Morris and Son Pty Ltd v Accident Compensation Commission, TW Morris and Son Pty Ltd v Commissioner of Payroll Tax [1994] VicRp 6; [1994] 1 VR 98, the Court of Appeal said (at page 102) -

"The mere fact that words of seemingly greater width follow in the one expression words of more particular application is itself a context that may be used, in an appropriate case, to restrict the ambit of the wider words: see particularly what was said by Dixon J in Cody's Case [1947] HCA 17; (1947) 74 CLR 629 at 648. The question is really whether, in context, that restricting effect is justified and that is a question that can only be answered case by case, depending upon the particular words that are in issue and the actual context in which those words appear. All words take their meaning from their context, whether in a statute or in a contract and the conclusion that words should be read ejusdem generis is but an application of the wider principle."

Thus while the ejusdem generis rule is useful in statutory interpretation, it is not to be applied universally, but case by case.
The applicant did not venture to name the genus said to be formed by the organisations in section 32(2) (a), (b) and (c). I am not persuaded that they form a genus which excludes the second Respondent. Licensed broadcasters, the ABC and SBS between them publish information on television, radio and the internet. The second Respondent publishes its information to subscribers, presumably electronically, so although it is not a licensed broadcaster it appears to be carrying on the business of providing information in a manner not unlike the organisations described in (a), (b) and (c).
Further, section 32 of the FTA performs in the Victorian legislation a similar function to section 65A in the (Commonwealth) Trade Practices Act 1974 (TPA). It is important to understand that the Commonwealth and State legislation form a scheme, although a loose one in some areas. Part 2 of the FTA (where section 32 appears) and Part 5 of the TPA (where section 65A appears) have more than half their provisions in common. It is safe to assume, if there is nothing in the legislation to the contrary, that the State law is intended to echo the Commonwealth law.
In section 65A, the equivalent defined term to "information provider" in section 32, there a "prescribed information provider", begins with general words "a person who carries on a business of providing information" and ends with the same specific examples: licensed broadcasters etc. Thus in the TPA paragraphs (a), (b) and (c) are examples of the term "information provider" rather than members of a class qualifying the general words.
It would create a very confusing situation for information providers if they were exempted by the Commonwealth legislation from the prohibitions in section 52 (equivalent of Victoria's section 9) but did not receive the same exemption from very similar words in the State legislation. Such confusion can not have been intended by either legislature. Accordingly, this aspect of the legislative context weighs against reading down the general words in section 32(2) (d) to exclude the second respondent.
Some publications by information providers are not covered by the exemption. These are publications described in section 32 (1) (a) and (b) - essentially advertisements or information about the information provider's own business activities or goods or services. The applicant contended that these exceptions applied to the second Respondent's activities concerning him so that it was not able to claim the protection given to information providers by section 32.
The Applicant relied upon a passage in Australian Competition and Consumer Commission v Channel Seven Brisbane Pty Limited [2009] HCA 19 at paragraph 43. My reading of that passage is that it operates against the Applicant's case, indicating that an information provider advertising itself does not receive the protection of section 65A (or by analogy section 32) whereas an information provider otherwise providing information does receive that protection. The full passage from the decision of French CJ and Kiefel J explains very well the purpose of the provision in the legislative scheme. Their honours said:

"42. The purpose of the exemption in s.65A ... was to maintain a vigorous free press as well as to maintain an effective and enforceable TPA. That purpose is served by releasing newspapers and electronic media proprietors, inter alia, from undesirable inhibitions on the provision, by them, of news, information, opinion and comment. Consistently with that purpose information providers are free as part of the function of an independent free press to praise or criticise the providers of goods or services and the quality of what they provide. Where, however, the information provider publishes matter in connection with goods or services which it itself provides, or publishes an advertisement for its own or someone else's goods or services, the rationale of maintaining a free and vigorous press does not require its exemption from the prohibition of misleading or deceptive conduct. The same is true where the information provider promotes the goods or services of a third party pursuant to a contract, arrangement or understanding with that party. It would be true also of publications critical of goods or services provided by competitors of the information provider or of a third party with whom the information provider has a contract, arrangement or understanding.

The rationale for limits upon the exemption should be understood in the light of conditions that must be satisfied before an information provider is liable in respect of misleading or deceptive representations made by a third party and published by the information provider. The publication, by an information provider, of third party statements about goods or services, does not, without more, amount to the adoption or making of those statements by the information provider."
Accordingly, in my view the second Respondent properly contended that it has the benefit of the protection provided by section 32 of the FTA and can not be liable to the Applicant under the Fair Trading Act 1999 for any loss or damage said to flow from any alleged misleading or deceptive conduct in its publications about him.
In summary, with the exception outlined below, the Applicant's claim against the second Respondent is dismissed for lack of jurisdiction in as much as it is based on Part 9 of the FTA. In as much as it is based on the jurisdiction in section 159, it is dismissed as being unable to succeed.
The exception is that the Applicant's claim as against the second Respondent in paragraphs 19 (d) and (e) of the Points of Claim dated 7 May 2010 are merely struck out as being too much entangled with the rest of the claim and for not stating how the alleged damage flows from the alleged breaches. The Applicant is therefore not precluded from filing further points of claim on the issue raised in those paragraphs.
As the second Respondent is a credit reference agency providing services to the fourth Respondent and the claims against the fourth Respondent seek orders that the credit reference information be altered, the second Respondent remains in my view an interested party. I will make orders to that effect so that it may if it so desires attend hearings and make submissions about issues relevant to it.
The parties foreshadowed applications for costs. In that regard, the attention of the parties is drawn to clause 28GG of Schedule One to the VCAT Act 1998 which prohibits costs orders in small claims. To the extent that the present claim is a small claim the tribunal has no power to make orders for costs.
Finally, it is customary in claims for less than $10,000 for the tribunal to keep the number of hearings to a minimum, since multiple hearings in small claims tend to increase disproportionately the time and cost involved for the parties. Accordingly, I will direct that the claim be fixed for hearing as soon as possible after 31 January 2011 with liberty to apply should there be further interlocutory issues.

The claim as against the third Respondent is withdrawn.
The fourth Respondent's application for the claim as against it to be struck out is dismissed.
By 31 January 2011, the Applicant may file amended Points of Claim against the fourth Respondent.
The claim as against the second Respondent is dismissed, subject to order 5.
That part of the claim as against the second Respondent which appears in paragraph 19(a) and (e) of the Applicant's Points of Claim dated 7 May 2010 is struck out and the Applicant has leave until 31 January 2011 to file new Points of Claim against the second Respondent concerning the issue raised in those paragraphs.
The second Respondent remains an interested party and the principal registrar is directed to amend the register accordingly.
Costs (including those of the third Respondent) reserved.
The principal registrar is directed to fix a hearing of the claim as soon as possible after 31 January 2011.
Liberty to apply.

Fair Trading Act 1999

Interest Rates Act 1983

Slater v Veda

At a glance

Court

Decision date

Source

Judgment (55 paragraphs)

Slater v Veda (Civil Claims) [2010] VCAT 2083 (22 December 2010)

Parties

Legislation Cited (3)

Cases Cited (2)