Burton, P.R. & Anor v. Citicorp Finance Pty Ltd & Ors [1987] FCA 255

2S Ss (LIMITED DISTRIBUTION)

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG NO. 43 OF 1987

) ) ) } GENERAL DIVISION ) ) )

EX TEMPORE JUDGMENT

Between: PHILLIP RAYMOND BURTON and NOALA FRANCES BURTON

(Applicants)

And: CITICORP FINANCE PTY. LIMITED (FORMERLY KNOWN AS

PERSON-TO-PERSON FINANCIAL

SERVICES PTY. LTD. ) CITICORP AUSTRALIA LIMITED

and CREDIT REFERENCE ASSOCIATION OF AUSTRALIA LIMITED

(Respondents)

Coram: Ryan J. Date: 16 April 1987

Place: Melbourne

EX TEMPORE REASONS FOR JUDGMENT

In this matter, by notice of motion dated 24 March 1987, the third respondent has sought an order pursuant to 0.20 r.20 of the Rules of this Court that the application be dismissed as against it. Alternatively, it seeks an order for such dismissal in the exercise of the Court's inherent jurisdiction. In the further alternative, it is sought that

the applicants' statement of claim be struck out pursuant to

tJ

0.11 r.16 in that it discloses no reasonable cause of action

or it 1s otherwise an abuse of the process of the Court.

The case pleaded against the third respondent is that in the course of its business as a credit reference agency,

1t published on specified dates to particular companies or

firms, certain statements of and concerning the applicants which had been supplied to the third respondent by the first

or second respondents.

It was first argued for the first respondent in support of its notice of motion that the circumstances disclosed by the statement of claim made applicable the following observations in a joint judgment of Mason ACJ, Wilson, Deane

and Dawson JJ in Yorke v. Lucas (1985) 158 CLR 661 at 666:

"It should be observed at the outset that the facts as found by the trial judge raise the question whether the Lucas company itself was guilty of any contravention of s.52. It is, of course, established that contravention of that section does not require an intent to mislead or deceive and even though a corporation acts honestly and reasonably, it may nonetheless engage in conduct that 1s misleading or deceptive or is likely to mislead or deceive: Hornsby Building Information Centre Pty. Ltd. v. Sydney