Bailey v Veda Advantage Information Services and Solutions Limited

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FEDERAL COURT OF AUSTRALIA

Bailey v Veda Advantage Information Services and Solutions Limited

[2007] FCA 1664

PRACTICE AND PROCEDURE – Representative proceedings – application to strike out paragraphs of pleading – application for summary dismissal – three class actions by individuals claiming that credit information provider had supplied to subscribing credit providers misleading and deceptive and defamatory information concerning their credit worthiness – challenge to identification of group members – challenge to specification of common questions of fact and law – whether pleaded imputations merely repeated express terms – issue whether s 65A of Trade Practices Act 1974 (Cth) provides defence to credit information provider to the claim of contravention of s 52 of that Act.

DEFAMATION – three class actions by individuals claiming that credit information provider had supplied to subscribing credit providers misleading and deceptive and defamatory information concerning their credit worthiness – challenge to identification of group members – challenge to specification of common questions of fact and law – whether pleaded imputations merely repeated express terms – issue whether s 65A of Trade Practices Act 1974 (Cth) provides defence to credit information provider to the claim of contravention of s 52 of that Act.

TRADE PRACTICES – three class actions by individuals claiming that credit information provider had supplied to subscribing credit providers misleading and deceptive and defamatory information concerning their credit worthiness – challenge to identification of group members – challenge to specification of common questions of fact and law – whether pleaded imputations merely repeated express terms – issue whether s 65A of Trade Practices Act 1974 (Cth) provides defence to credit information provider to the claim of contravention of s 52 of that Act.

Held:  certain paragraphs to be struck out and leave to amend granted.

Federal Court of Australia Act 1976 (Cth) ss 31A, 33C, 33H, 33ZF
Trade Practices Act 1974 (Cth) s 65A

Australian Competition & Consumer Commission v Seven Network Limited [2007] FCA 1505 referred to
Bond v Barry [2007] FCA 1484 referred to
Bright v Femcare Limited (2002) 195 ALR 574 cited
Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 cited
Horwitz Grahame Books Pty Ltd v Performance Publications Pty Ltd (1987) 8 IPR 25 referred to
Petrusevski v Bulldogs Rugby League Ltd [2003] FCA 61 cited

ANDREW BAILEY v VEDA ADVANTAGE INFORMATION
SERVICES AND SOLUTIONS LIMITED
NSD 371 of 2007

MELISSA MARIE SZYCZEW v VEDA ADVANTAGE INFORMATION
SERVICES AND SOLUTIONS LIMITED
NSD 368 of 2007

ZASHCA KNOCHELL v VEDA ADVANTAGE INFORMATION
SERVICES AND SOLUTIONS LIMITED

NSD 393 of 2007

LINDGREN J
2 NOVEMBER 2007
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 371 OF 2007

BETWEEN:

ANDREW BAILEY
Applicant

AND:

VEDA ADVANTAGE INFORMATION SERVICES
AND SOLUTIONS LIMITED
Respondent

JUDGE:

LINDGREN J

DATE OF ORDER:

2 NOVEMBER 2007

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The proceeding be listed on Wednesday 7 November 2007 at 9.30 am for the making of orders, including orders as to costs.

Note:    Settlement and entry of…

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Details
Case
[2007] FCA 1664
Decision Date

CaseChat Overview and Summary

The case of Bailey v Veda Advantage Information Services and Solutions Limited involved a dispute between the plaintiff and the defendant credit reporting agency, Veda. The plaintiff sought to challenge Veda's publication of credit information about him, arguing it was misleading or deceptive under section 52 of the Trade Practices Act. Veda moved to have the claim struck out, arguing that the information was exempt from the prohibitions in section 52 by virtue of section 65A of the Trade Practices Act, which provides exemptions for prescribed information providers.

The court had to determine whether Veda's publications of credit information were exempt from the prohibitions of section 52 of the Trade Practices Act under section 65A. The court found that the plaintiffs would be precluded from proving their claim as currently pleaded, as the exemption in section 65A applied to the information Veda published. The court noted that the exemption applied to credit reporting agencies like Veda, which were considered prescribed information providers. The court also found that the plaintiffs needed leave to amend their pleadings to prove a different case, as the exemption in section 65A meant the current pleading would not succeed.

In light of the above, the court proposed to strike out the plaintiffs' amended statement of claim with liberty to amend. The court also proposed to strike out the plaintiffs' claim under section 52 of the Trade Practices Act, as the information in question was exempt under section 65A. The court proposed to grant Veda's costs of the motions. The court urged the parties to seek to agree on the orders to be made.

The court made orders that the proceeding be listed on 7 November 2007 at 9.30 am for the making of orders, including orders as to costs.

Orders

Orders of the court

1. The proceeding be listed on Wednesday 7 November 2007 at 9.30 am for the making of orders, including orders as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

LINDGREN J
If the pleading is not amended, I would propose to grant the relief sought in paragraphs 5 and 6 of the amended notice of motion.CONCLUSION I propose to publish these reasons and give the parties an opportunity to consider them and to address me on the appropriate orders to be made, including orders as to costs. At present I am inclined to the view that certain paragraphs of the proposed further amended application (as at 03.10.07) should be struck out with liberty to amend; that the amended statement of claim (03.08.07) should be struck out in its entirety with liberty to file a further amended statement of claim, and that the respective applicants should pay Veda’s costs of the motions. As noted above at [14], a condition of the applicants’ exercise of the leave to amend would be that the solicitors and counsel for the applicants certify that any amended documents that are to be filed have been carefully checked and found to be correct so far as form is concerned. I would urge the parties to seek to agree on the orders to be made.

Ratio Decidendi

Legal Principle Established

Established by: LINDGREN J

It is plain that on the pleading it is the computer of the credit provider (subscriber) only that is referred to. On the current pleading I would disallow the applicant to attempt to prove under paragraph 18 as presently formulated any different case. The applicant will need leave to amend if he wishes to have the option of proving a different case.CLAIM UNDER s 52 OF THE TP ACT AND THE OPERATION OF s 65A OF THE TP ACT – PARAGRAPHS 5 AND 6 OF THE AMENDED NOTICES OF MOTION By paragraphs 5 and 6 of the amended notices of motion, Veda seeks to have the claims of contravention of s 52 of the TP Act struck out. In this respect the motions raised an interesting and important issue. That issue is whether the claim of contravention of s 52 of the TP Act cannot succeed by reason of s 65A of that Act. So far as relevant, s 65A provides:(1)Nothing in section 52, 53, 53A, 55, 55A or 59 applies to a prescribed publication of matter by a prescribed information provider, other than:(a) a publication of matter in connection with:(i) the supply or possible supply of goods or services;(ii)the sale or grant, or possible sale or grant, of interests in land;(iii)the promotion by any means of the supply or use of goods or services; or(iv)the promotion by any means of the sale or grant of interests in land;where:(v)the goods or services were relevant goods or services, or the interests in land were relevant interests in land, as the case may be, in relation to the prescribed information provider; or(vi)... (b) a publication of an advertisement.(2)For the purposes of this section, a publication by a prescribed information provider is a prescribed publication if:(a)in any case — the publication was made by the prescribed information provider in the course of carrying on a business of providing information; or(b)in the case of a person who is a prescribed information provider by virtue of paragraph (a), (b) or (c) of the definition of prescribed information provider in subsection (3) (whether or not the person is also a prescribed information provider by virtue of another operation of that definition) — the publication was by way of a radio or television broadcast by the prescribed information provider.(3) In this section:prescribed information provider means a person who carries on a business of providing information and, without limiting the generality of the foregoing, includes:(a)the holder of a licence granted under the Broadcasting Services Act 1992; and(aa)a person who is the provider of a broadcasting service under a class licence under that Act; and(ab)the holder of a licence continued in force by subsection 5(1) of the Broadcasting Services (Transitional Provisions and Consequential Amendments) Act 1992; and(b) the Australian Broadcasting Corporation; and(c) the Special Broadcasting Service Corporation.relevant goods or services in relation to a prescribed information provider, means goods or services of a kind supplied by the prescribed information provider or, where the prescribed information provider is a body corporate, by a body corporate that is related to the prescribed information provider.