Case: Dun v Macintosh [1906] HCA 24 ; (1906) 3 CLR 1134
Outcome: discussed
appeal to the High Court ( Dun v Macintosh [1906] HCA 24 ; (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. 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). Barton J agreed with the Chief Justice. 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). 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". 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.