From: Neil Foster <>
Date: 06/04/2009 06:09:08 UTC
Subject: Credit reports, defamation and negligence

Dear Colleagues;
I promise after this I will stay away from single-judge decisions! But couldn't resist mentioning (esp since the judge concerned does such a good job, in my view) the decision of Lindgren J in the Federal Court in Dale v Veda Advantage Information Services and Solutions Limited [2009] FCA 305 (1 April 2009) Two interesting issues for the price of one case:
(1) Can a credit rating agency (which operates for profit) be liable in defamation at the suit of those given a poor rating? No, mainly because of the defence of qualified privilege- paras [278]-[325]. His Honour discusses the continuing authority of the apparently contrary Privy Council decision in Macintosh v Dun (1908) 6 CLR 303; [1908] AC 390 but concludes (justifiably, I think) that the decision can no longer be regarded as binding, at least in the changed modern conditions of today. (Also some interesting though slightly inconclusive discussion on whether there is "publication" of information for the purposes of defamation where the information is provided "automatically" from one computer to another with no human intervention.)
(2) Could there be a duty of care in the law of negligence? No- paras [374]-[417], for various reasons but in particular heavily influenced by the need to avoid "incoherence" in the law as noted by the High Court in Sullivan v Moody. There is also an interesting comment at [392] that members of the public affected by credit ratings possibly could be said to have been "vulnerable" for the purposes of the law of "negligent economic loss", except that there is now a detailed statutory regime under the Privacy Act which allows them recourse to other methods to correct inaccuracies in their records.
Neil Foster
Neil Foster
Senior Lecturer, LLB Program Convenor
Newcastle Law School
Faculty of Business & Law
MC158, McMullin Building
University of Newcastle
Callaghan NSW 2308
ph 02 4921 7430
fax 02 4921 6931