Federal Court of Australia

Australian Security Academy Pty Ltd v Australasian Institute of Chartered Loss Adjusters Pty Ltd (No 2) [2025] FCA 924

ORDERS

THE COURT ORDERS THAT:

1.    The Applicant’s Originating Application dated 12 March 2021 be dismissed.

2.    The Applicant pay the Respondents’ costs, as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ANDERSON J:

1.    Introduction

1    The applicant’s (ASA) claims are based on the publication of an email dated 30 June 2020 at 1.44 pm (30 June Email).

2    Mr Daniel Brennan, an employee of Technical Assessing, a loss adjusting firm, had completed a Diploma of Loss Adjusting from ASA. Mr Brennan applied for membership of the first respondent (AICLA) which is the peak body for loss adjusters in Australia. In response to Mr Brennan’s application for membership, the second respondent (Mr Tony Libke), being the Chief Executive of AICLA at the time, sent the 30 June Email to Mr Brennan and Mr David Cambridge, the managing director of Technical Assessing.

3    The 30 June Email stated, inter alia:

AICLA admittance requirements as outlined in the application form states that studies be completed in the ANZIIF Diploma of Loss Adjusting. I note that your studies are in a non-accredited Diploma course.

4    ASA, by its statement of claim alleges, inter alia, the following:

[3]    From around 30 June 2020, Tony Libke (the second respondent) as the CEO of the first respondent, published an email which the applicant alleges to be defamatory and injurious to their reputation and which contains misleading and false representations attached in (Schedule A).

Particulars

(i)    the email was sent to Daniel Brennan and David Cambridge on 30th June 2020 at1:44pm [sic].

(ii)    further and better particulars will be provided after full and proper discovery and prior to trial.

[4]    The email contained the following (First Publication):

“AICLA admittance requirements as outlined in the application form states that studies be completed in the ANZIIF Diploma of Loss Adjusting. I note that your studies are in a nonaccredited Diploma course.”

Particulars

(i)    The email was read by Daniel Brennan.

(ii)    The email was read by David Cambridge.

[5]    The First Publication was of and concerning the Applicant by reason that the recipient of the First Publication was aware of the following extrinsic facts:

(a)    The subject matter of the email was in relation to the Applicant’s course and accreditation status, and in relation to the admission requirements of the first Respondent.

[6]    By reason of the matters set out below, the First Publication was defamatory of the Applicant in that it meant and was understood to mean that:

(a)    The Applicant is misleading students in relation to the accreditation status of its course.

(b)    The Applicant is not a fit and registered training body in that it falsely declares its course to be registered and accredited when they are not.

(c)    The Applicant falsely declared that its course is nationally recognised and meets the quality assurance standards of the Australian Qualifications Framework.

(d)    The Applicant’s course would not satisfy the criteria for the first Respondent to provide an exemption from the admission requirements of the first Respondent.

(e)    The Applicant’s course was inferior to the first respondent’s course as it would not satisfy the criteria for admission thereto, or for an exemption from its requirements.

Particulars

The Applicant relies on the following extrinsic facts:

(i)    Daniel Brennan is a past graduate of the Applicant’s Loss Adjusting Diploma.

(ii)    David Cambridge is the Managing Director of the business Technical Assessing being of one of the largest employers of Loss Adjusters in Australia.

(iii)    The Defendant is a competitor in that it sells a competing course in Loss Adjusting.

(iv)    The Defendant is the National Body for Industry Accreditation in Loss Adjusting.

[7]    By reason of the publication of the First Publication, the Applicant has been severely injured in their reputation and standing and have thereby suffered loss and damage, and both respondents are liable to the Applicant therefore.

5    The respondents’ amended defence pleads, at [3(b)(ii)], that the publication of the 30 June Email was to convey to Mr Brennan that he failed to satisfy the requirements for membership of AICLA, and to seek further evidence so that the application could proceed. The respondents plead at [3(b)(i)] of their amended defence that Mr Brennan’s application was insufficient because:

(A)    Mr Brennan failed to provide evidence that he had attained the prerequisites for membership which included several possibly applicable pathways including enrolment in or completion of Module LA501 – Introduction to Loss Adjusting from The Australian & New Zealand Institute of Insurance & Finance (ANZIIF) Diploma of Loss Adjusting OR satisfaction of conditions to be awarded by ANZIIF the Diploma of Loss Adjusting by Recognition of Prior Learning (RPL);

(B)    the Membership Application did state that Mr Brennan had completed AICLA’s entrance examination criteria, being Module LA501 – Introduction to Loss Adjusting from The Australian & New Zealand Institute of Insurance & Finance (ANZIIF) Diploma of Loss Adjusting but did not provide any evidence of this such as an academic transcript;

(C)    the only evidence Mr Brennan attached to his Membership Application was evidence that he had completed the Diploma of Loss Adjusting from ASA, being another registered training organisation which, at the time of the Membership Application and 30 June Email, was not accredited by AICLA and did not then meet AICLA’s guidelines for membership;

(D)    the Membership Application put forward a Character Testimonial from Ms Wendy Deaudney on the basis that she was an “AICLA Associate”, however, she was not in fact a member of AICLA.

6    As outlined by the extracts of the statement of claim above, ASA brings a claim against the respondents for defamation in respect of the 30 June Email. ASA also brings claims for misleading and deceptive conduct pursuant to s 18 of the Australian Consumer Law (ACL), and for injurious falsehood in respect of the same email. It is noted that the 30 June Email was published before amendments to the uniform defamation legislation came into force on 1 July 2021.

2.    Background

2.1    Parties

7    ASA is a privately operated registered training organisation (RTO) which provides training in a range of areas, including in the security and insurance industry. ASA’s sole director and shareholder is Mr Michael Evans. He is also ASA’s Chief Executive Officer.

8    AICLA is the professional association for loss adjusters in Australia, New Zealand, South-East Asia and the Pacific region, with over 1000 members. Loss adjusters are the ‘bridge’ between the insurer and the insured, evaluating a claim by reference to its terms and conditions and other matters, and making a recommendation to the insurer.

9    Mr Libke is the former Chief Executive Officer of AICLA. On 27 October 2023, he retired from AICLA as CEO but continues to be engaged by AICLA in a consultant capacity.

10    Mr Libke authored the 30 June Email in his capacity as CEO of AICLA. When the 30 June Email was sent on 30 June 2020 at 1.44 pm, Mr Libke had primary responsibility within AICLA for assessing membership applications.

11    The extract of the respondents’ amended defence also makes reference to the Australian & New Zealand Institute of Insurance & Finance (ANZIIF). ANZIIF is not a party to these proceedings. They are, like ASA, a registered training organisation. ANZIIF provide education, training and professional development services for the insurance and finance industry. Mr Libke notes in his affidavit, at [24], that ANZIIF and AICLA have had a close relationship dating back over 25 years, and that AICLA shares with ANZIIF “complementary goals of enhancing education and training and therefore professional standards for those in the insurance sector”. Mr Libke also states, at [25] of his affidavit, that AICLA supports the educational services provided by ANZIIF, and that this has extended to collaboration in relation to the delivery of course material for the Diploma of Loss Adjusting. Mr Libke states that while AICLA historically drafted its own course materials, it recognised some time ago that it did not have sufficient resources to deliver training and ANZIIF became AICLA’s training delivery partner. Mr Libke described this relationship between ANZIIF and AICLA as “continuing”.

2.2    Witnesses and evidence

12    The parties’ evidence in chief was by way of affidavits which were read and tendered.

13    ASA tendered:

(a)    six affidavits of Mr Evans dated 30 October 2023 (Exhibit A1), 29 November 2023 (Exhibit A2), 26 April 2024 (Exhibit A3), 29 August 2024 (Exhibit A4), 31 October 2024 (Exhibit A5) and 18 February 2025 (Exhibit A6); and

(b)    an affidavit of Ms Nell Robertson, being the Managing Director of G Hughes and Associates, a Chartered Loss Adjuster, dated 29 November 2023 (Exhibit A7).

14    The respondents tendered:

(a)    an affidavit of Mr Libke dated 20 March 2024 (Exhibit R1);

(b)    an affidavit of Mr David Rolf Cambridge, being the managing director of Technical Assessing, dated 28 March 2024 (Exhibit R2); and

(c)    an expert report of Ms Melinda Bowman dated 29 February 2024 (Exhibit R3), a first joint expert report of Ms Bowman and Mr William O’Shea dated 2 July 2024 (Exhibit R4), a second joint expert report of Ms Bowman and Mr O’Shea dated 5 December 2024 (Exhibit R5), and an affidavit of Melinda Bowman dated 31 January 2025 (Exhibit R6); and

(d)    a document at Tab 50.13 of the Court Book, which recorded a response from ASA to a request from one of the experts requesting documents recording the number of annual student enrolments from persons employed by Technical Assessing at ASA, between FY17 to FY23 (Exhibit R8).

15    The respondents also tendered the expert report of Mr O’Shea, who was the expert engaged by ASA, dated 29 November 2023. However, during final address, counsel for the respondents informed me that this exhibit would not be relied upon: T134:21-22.

16    While Mr Evans was cross-examined, Ms Robertson was not required by the respondents for cross-examination. Each of the respondents’ witnesses, Mr Libke, Mr Cambridge and Ms Bowman were cross-examined.

17    Mr Evans, in giving evidence, had a tendency to make speeches rather than to directly answer the question. The impression I gained from observing Mr Evans give his evidence was that he was prone to overstatement and exaggeration when answering questions about the 30 June Email and its effect on ASA. For that reason, I have been cautious in assessing Mr Evans’ evidence when not corroborated by documentary evidence. I accept the evidence of Mr Libke, Mr Cambridge and Ms Bowman as being based on a sound recollection of events that transpired and actions that they had taken such that I find their evidence to be reliable and persuasive.

3.    Facts

18    It is first helpful to outline the membership requirements of AICLA.

19    The membership requirements appear to have been updated on 20 October 2011. At that time, there were three pathways through which a person could become an “affiliate” member of AICLA, as follows:

Affiliate:

A person shall be eligible for admissions or elevation to the class of Affiliate Membership when that person: A

(i) holds at least a Certificate in Loss Adjusting Practice having passed four modules by examination from the ANZIIF Diploma of Loss Adjusting or such other qualification the standard of which the Board of Directors is satisfied is not less than the foregoing requirements; and

(ii) has complied with the requirements of Continuing Professional Development as prescribed by the board

OR: B

(i) has satisfied the conditions to be awarded the Diploma of Loss Adjusting by Recognition of Prior Leaning (RPL)

(ii) has served as a practicing loss adjuster for a minimum of 5 years and

(iii) has complied with the requirements of Continuing Professional Development as prescribed by the Board

OR: C

(i) has a minimum of a degree in Law, Engineering, Accountancy or other specialized discipline to a standard of which the Board is satisfied

(ii) has a minimum of 15 years experience in loss adjusting and at least 5 years as a manager or in a mentoring role; and

(iii) provides written recommendation from the accredited loss adjusting professional body in his/her country to support the application for Affiliate membership.

20    As the above extract illustrates, Pathway B which involved the award of the Diploma of Loss Adjusting by Recognition of Prior Learning (RPL) was agnostic as to where the relevant diploma was obtained.

21    The membership requirements for AICLA were updated in October 2017. Pathway B was updated in the following terms to require the diploma awarded by RPL to be obtained from ANZIIF:

OR: B

(i) has satisfied the conditions to be awarded by ANZIIF the Diploma of Loss Adjusting by Recognition of Prior Learning (RPL); and

(ii) has served as a practicing loss adjuster for a minimum of 5 years; and

(iii) has complied with the requirements of Continuing Professional Development as prescribed by the Board.

22    The membership requirements were not then updated until October 2020 when Pathway B was amended to remove the requirement for the diploma by RPL to be awarded by ANZIIF. The October 2020 version of AICLA’s affiliate membership requirements was in the following terms:

OR: B

(i) has satisfied the conditions to be awarded the Diploma of Loss Adjusting by Recognition of Prior Learning (RPL); and

(ii) has served as a practicing loss adjuster for a minimum of 5 years;

(iii) has served as a member of AICLA for a minimum of 2 years; and

(iv) has complied with the requirements of Continuing Professional Development as prescribed by the Board.

23    Turning back to the matters in the present proceeding, on 4 June 2020, Mr Libke notified Mr Cambridge that his organisation qualified for a bulk subscription arrangement for renewal of AICLA memberships for 2020/2021. Mr Libke sent a list of AICLA members from Technical Assessing and asked Mr Cambridge to confirm if any changes were required to the list.

24    On 29 June 2020, at 12.40 pm, Mr Cambridge sent an email to Mr Libke stating:

Good to speak… Please find attached the revised list. I also understand that Ash will send through the link for applications for Daniel Brennan can become a member once he submits his qualification details.

25    Ash Hockings, an Executive Assistant at AICLA, sent an email to Mr Cambridge at 12.38 pm on 29 June 2020 providing a link to the relevant application form. This link was then forwarded by Mr Cambridge to Mr Brennan via email which stated:

Spoke with Tony Libke at AICLA and you’ll need to apply to become a member first before we renew your annual subscription. The good news is that AICLA for July have removed the application membership fee. Please follow the link and let me know if you have any issues.

26    Mr Brennan responded to Mr Cambridge 40 minutes later stating:

Membership form now submitted to them for review.

27    Mr Brennan’s completed application form included the following:

(a)    In response to the prompt “I have successfully completed (or agree to complete within 6 months of joining) the Institute’s entrance examination criteria, being Module LA501 – Introduction to Loss Adjusting from the Australian and New Zealand Institute of Insurance and Finance (ANZIIF) Diploma of Loss Adjusting”, Mr Brennan marked “Completed”.

(b)    Where the application form required an applicant to provide “Evidence of completion of LA501 – Introduction to Loss Adjusting or evidence of enrolment in LA501”, Mr Brennan provided a copy of his certificate from ASA which confirmed that he had been awarded a Diploma of Loss Adjusting on 26 November 2019. Mr Brennan also attached to his application an academic record of his completed Diploma of Loss Adjusting from ASA.

(c)    Where the application form required details of a “character testimonial”, Mr Brennan provided the details of a Ms Wendy Deaudney of City Wide Talent, as an “AICLA Associate”.

(d)    Under “University Qualifications (if any)”, the only details provided by Mr Brennan were in relation to having obtained a Diploma of Loss Adjusting in 2020 from ASA.

28    Mr Libke does not know Mr Brennan other than in respect of his dealings with him concerning his AICLA membership. Mr Libke’s evidence was that Mr Brennan’s application was deficient because:

(a)    his reliance on ASA qualifications at the date of his application was misplaced because the ASA Diploma of Loss Adjusting was not accredited for AICLA membership admittance requirements at that time;

(b)    whilst he had referred to his completion of ANZIIF Module LA501 (Introduction to Loss Adjusting), Mr Brennan had provided no evidence of having done so as was required on the face of the form;

(c)    he relied on a referee who was not an AICLA member (incorrectly identifying that person as an AICLA Associate) when, at the time, any application had to be proposed by an existing AICLA member.

29    On 30 June 2020, Mr Libke emailed Mr Brennan in relation to his membership application, being the 30 June Email. The subject line of the email was “Application for Membership”. Mr Cambridge was copied into the 30 June Email. The full text of the 30 June Email was as follows:

Hi Daniel,

Thank you for your application for membership of AICLA.

AICLA admittance requirements as outlined in the application form states that studies be completed in the ANZIIF Diploma of Loss Adjusting. I note that your studies are in a non-accredited Diploma course.

To proceed with your application, you will need to show evidence of enrolment in LA501 or evidence of an application for RPL. RPL guidelines are attached.

Please note that Wendy Deaudney is not a member of the Institute, however many of the Technical adjusters are Associates or above of AICLA.

30    I accept that Mr Libke copied Mr Cambridge into the 30 June Email as a courtesy. It was Mr Cambridge who had requested that Mr Brennan become a member, and Mr Cambridge was also Mr Brennan’s employer. Mr Libke’s evidence was that he considered it appropriate to keep Mr Cambridge up to date as to the progress of Mr Brennan’s membership application and remains of this view. I accept that this was the case.

31    Mr Cambridge gave evidence that he expected to be copied into emails from Mr Libke about AICLA membership matters affecting Technical Assessing employees, including Mr Brennan, for four reasons:

(a)    First, Technical Assessing was responsible for paying Mr Brennan’s membership fee, if he met the criteria for membership (although it is noted that in an email from Ash Hockings to Mr Cambridge at 11.23 am on 30 June 2020, it was stated that if Mr Brennan’s membership was approved, there would be no subscription amount payable). Mr Brennan’s application came under the “umbrella” of Technical Assessing and was not made by Mr Brennan in his personal capacity.

(b)    Secondly, as Managing Director of Technical Assessing, Mr Cambridge was and remains responsible for matters affecting all Technical Assessing employees. \

(c)    Thirdly, Mr Cambridge had personally requested that Mr Libke keep him informed as he wanted Mr Brennan to become an AICLA member, similarly to other employees, given AICLA is the industry recognised body for Chartered Loss Adjusters in Australia, as this enhanced the standing of Technical Assessing’s employees in the market.

(d)    Fourthly, any membership issue had the capacity to impact the fees and bulk discount for which Technical Assessing was invoiced, and as Managing Director, Mr Cambridge needed to know about this (however, noting again that Mr Cambridge had previously been advised that no subscription amounts would be payable if Mr Brennan’s application was approved).

32    Mr Cambridge also gave evidence that he thought nothing of the 30 June Email at the time. Mr Cambridge said that all he took from the 30 June Email and being copied into it was that Mr Libke was setting out the requirements which Mr Brennan needed to satisfy so that his AICLA membership application could progress, and that he was pleased to have been kept in the loop by Mr Libke.

33    Mr Libke’s evidence was that every statement he made in the 30 June Email was true, based on the material submitted by Mr Brennan. I accept that Mr Libke’s intention was to help Mr Brennan proceed with his application.

34    While something was sought to be made by ASA that Mr Brennan could have been accepted as a “provisional” member of AICLA upon, among other conditions, a commitment to, within six months, complete Module LA501 – Introduction to Loss Adjusting from the ANZIIF Diploma of Loss Adjusting, I do not make anything of this. In his application form, Mr Brennan explicitly stated that he had completed LA501, but then failed to provide the requisite supporting evidence. It follows that it was plainly appropriate for Mr Libke, as the next steps in progressing Mr Brennan’s application, to reply to Mr Brennan seeking clarification around the inconsistencies in his application. Mr Brennan did, in fact, proceed with his application and, after fulfilling AICLA’s requirements, became an Affiliate Member in June 2021.

35    Immediately following the 30 June Email, there were further exchanges between Mr Libke and Mr Brennan. On 1 July 2020, Mr Brennan wrote to Mr Libke stating:

I can confirm that I have been in the industry for over 20 years.

When I first started with GAB Robins, I completed my certificate IV in general insurance with ANZIIF. I then continued on to start my diploma with them and felt dissatisfied with their education services. I have completed my introduction to Loss Adjusting through ANZIIF, whilst some time ago…

I’m just wondering how I would obtain proof, I did that course my certificate 4 in around 2002.

36    Mr Libke responded later the same day stating:

If you have undertaken studies with ANZIIF, these will also be taken into account in determining your status. Please forward a copy of ANZIIF module results.

37    The following day, on 2 July 2020 at 5.30 am, Mr Brennan sent the following email to Mr Libke:

Good Morning

Thanks for the email.

I have referred this matter to my education provider who are nationally accredited, and received a surprised response. I expect further action will be taken by them

I have forwarded the body of this email to my education provider for further action.

To be hones[t] 17/18 was not the year to be looking

Firstly at that time I was an associate CIP, and 17/18 was the time I left.….

I most definitely have done the first three subjects in the Loss Adjusting Diploma including Introduction to Loss Adjusting and then stopped as I was disgusted with ANZIIF customer service and overall educational services. I therefore found an educator I was happy with, is part of the nationally recognised framework yet its [sic] not acceptable by you guys.

Could you please provide a list of your national accredited educators (I am assuming there is more than one otherwise we are being forced to use a provider we do not want to use which is wrong)

Again I repeat I have completed the Introduction to Loss Adjusting, through the ANZIIF however as this was done many years ago I have no record.

Kind Regards

38    Nothing in the above email suggests that the 30 June Email had any adverse impact on Mr Brennan’s impressions of ASA. Any dissatisfaction was directed towards the respondents together with ANZIIF, in the context of Mr Brennan wanting to become a member of AICLA. It is clear that Mr Brennan regarded ASA quite favourably given his statement “I therefore found an educator I was happy with”.

39    Later on 2 July 2020, at 2.36pm, Mr Libke responded to Mr Brennan’s email stating, inter alia:

Please forward details of the modules you have completed with ANZIIF as previously requested. This information will be available to you by contacting ANZIIF…

Our membership requirements are very specific and are laid out in the membership application, and also as detailed in the attached Qualifications and Rights for Classes of Membership.

If you wish to proceed with your application, please forward evidence of completion of LA501 or evidence of enrolment in the module.

40    Mr Brennan responded around one and a half hours later stating simply:

No worries I shall contact ANZIIF tomorrow

41    The same morning, at 6.19 am (being approximately 1 hour after Mr Brennan’s email to Mr Libke), the administration office of AICLA received an email from Michael Evans of ASA which was also sent and addressed to Mr Brennan. The subject of the email stated “Tony Libke AICLA”. The email stated:

Dear Daniel,

I hope you are well. Tony Libke will be in touch with you today to explain why you alone have been discriminated against by AICLA whilst three institute contacts listed on this page hold my qualification and are members of that association. That is before we even look at the several dozens of other Members who only hold my Diploma qualification on AICLA’s website and do not hold the ANZIIF qualification.

Libke has a history dating back to Ian Lavin’s time as president of doing this and he will be explaining his intentions in doing that again transparently and honestly to his board this week as well.

Tony will also be explaining to his board and the ANZIIF in a transparent and perfectly understandable way why he discriminated against you.

If you have any more discriminatory actions taken against you please let me know, I will pursue it with those in charge there, as to why you are out and from the bottom to the top others are in.

(Emphasis in italics added; the underlining was a hyperlink to the “Institute Contacts” page of the AICLA website).

42    The respondents submit, and I accept, that Mr Evan’s 2 July email illuminates his underlying complaint about the 30 June Email which is that Mr Brennan was being discriminated against by reason of obtaining his Diploma of Loss Adjusting through ASA rather than through ANZIIF. During cross-examination, Mr Evans said that his complaint about the 30 June Email was as follows (at Transcript 57:2-15):

MR BRENNAN: My complaint is, 34 other people before Daniel Brennan, between 2011 and 2020, with my qualification became members of AICLA with no resistance, including the man who became president four weeks after this email was sent. That is my objection… This was singled out, whereas all the others were let through like sorting the male sheep from the female sheep on the farm through the gate. This one, no reference to our rules, state that you can get it within 6 months. There’s your solution, buddy. Easy. It was just non-accredited. Bang.

MS HICKEY: So your complaint is that Mr Brennan was discriminated against: is that it?

MR EVANS: No, I’m not saying that. I’m saying Mr Brennan wasn’t provided with the information explaining the decision which we’ve all seen going through here today, and that’s fair. What has been applied here is missing that.

43    When asked where in the 30 June Email the respondents had disparaged ASA, Mr Evans referred specifically to the statement in the email that Mr Brennan’s studies were in a “non-accredited” course: Transcript 56:15-16, 23-24, 39. While the email made no reference to ASA, Mr Evans stated that it would be understood by persons reading the email that the reference to “non-accredited Diploma course” was a reference to ASA’s course: Transcript 56:11-13.

44    Mr Evans said the reference to “a non-accredited Diploma course” was a negative reference to ASA, and that he had “had enough” of “[t]hem attacking me like this”: Transcript 56:23-39. When it was suggested to Mr Evans that the reference to “non-accredited” would be understood as a course which was not accredited by AICLA in the context of AICLA’s admittance requirements, Mr Evans stated the following (at Transcript 54:13-36):

MS HICKEY: you would understand from that sentence that that sentence is intended to convey information about AICLAs admittance requirements; do you see that?

MR EVANS: Well, that might be his intention – it’s in his head; I don’t know.

…

MS HICKEY: [I]n the second sentence it says:

I note that your studies are in a non-accredited diploma course.

And you, of course, would read that sentence to me[an] that it’s in a course which is not accredited by AICLA?

MR EVANS: No. It says “not accredited”… It doesn’t say by whom. It doesn’t say by AICLA, or by ASQA or by anybody else. It just says “not accredited”… It’s very vague, ambiguous and unclear.

45    It is difficult to understand how Mr Evans contends that Mr Libke’s statements were, in some manner, a generalised statement regarding ASA’s Diploma of Loss Adjusting. The comment “non-accredited” was made specifically in the context of Mr Brennan’s application for membership to the AICLA, and was specifically preceded by Mr Libke’s reference to AICLA’s admittance requirements.

46    Again, while Mr Evans appeared to try and make much of the idea that Mr Brennan could have been accepted as a “provisional” member of AICLA, as if to suggest that Mr Libke’s failure to raise this avenue for membership indicated some ill-intention on Mr Libke’s part to paint ASA’s course as “non-accredited”, I do not make anything of this for the reasons already noted above.

47    Earlier in his cross-examination, Mr Evans conceded that he had taken no steps to find out AICLA’s membership requirements. He said he did not consider them relevant to his business: Transcript 37:13-33. As a consequence, Mr Evans could not have known when, or under what circumstances, the ASA Diploma of Loss Adjusting was recognised by AICLA as part of its membership criteria. As noted above, the ASA Diploma of Loss Adjusting was recognised as part of a pathway to affiliate membership from 2011 to September 2017. However, following the changes made to AICLA’s membership requirements, it was not recognised from October 2017 until the membership requirements were again amended in October 2020.

48    A few minutes after Mr Evans’ email on the morning of 2 July 2020 to AICLA’s administration office and Mr Brennan, Mr Brennan replied separately to Mr Evans in the following terms:

Hi Mate

Wow have I done something wrong

49    Shortly thereafter, Mr Evans responded to Mr Brennan:

No Daniel

You have simply been unfairly discriminated against by Tony Libke.

He will clear that up and you should be a member by the end of next week.

(Emphasis added.)

50    Again, it is noteworthy that Mr Evans maintained the “discriminated” terminology in this email. Mr Evans did not assert that the 30 June Email was defamatory of ASA.

51    Mr Evans at first refused to characterise his complaint about the 30 June Email as being one of the respondents discriminating against Mr Brennan. It was only after being taken to his email dated 2 July 2022 addressed to Mr Libke in which, on three occasions, he referred to Mr Brennan being discriminated against by AICLA, and his separate email to Mr Brennan that morning, that Mr Evans then acknowledged that “discriminated” was “consistent” with his concerns that Mr Brennan was being singled out: Transcript 57:12; 58:1-23.

52    Mr Evans accepted that he was concerned that Mr Brennan had been discriminated against and stated that he was drawing AICLA’s attention to that matter in the hope of resolving “the situation” amicably: Transcript 58:35-39. Mr Evans said that the “situation” was the fact that Mr Brennan had not been accepted for membership of AICLA without reasons or showing him his options: Transcript 58:40-44.

53    On 3 July 2020, Matrix Legal (solicitors of ASA) sent AICLA a Concerns Notice which was addressed to Mr Libke. ASA ultimately instituted proceedings on 12 March 2021, being some 8 months after the 30 June Email was published. This was done without ASA putting Mr Cambridge or Mr Brennan on notice of the proceeding or contacting them at any point in time: Transcript 68:1-20.

54    Mr Libke’s cross-examination was instructive as to what motivated him to send the 30 June Email.

55    Mr Libke said that Mr Brennan's application had not been rejected. The 30 June Email asked for further information to be supplied by Mr Brennan: Transcript 84:6-12, 36-40.

56    Mr Libke, in cross-examination, accepted that when communicating with Mr Cambridge, there was a need to be very careful about the wording used in the email. Mr Libke said that he used the word "non-accredited" in the 30 June Email in the context that it was not accredited as a pathway to membership of AICLA: Transcript 85:27-34. While it was put to Mr Libke that he did not state that the ASA course was non-accredited by AICLA specifically, Mr Libke, in my view correctly, noted that he had referred in the email to AICLA’s admittance requirements which, as outlined in the application form, required studies to be completed in the ANZIIF Diploma of Loss Adjusting: Transcript 87:25-30.

57    Mr Libke rejected that there was an imputation that the person providing the non-accredited diploma course was a “shonk”: Transcript 87:36-37.

58    Mr Libke accepted that the AICLA admittance requirements were changed in October 2020. Mr Libke stated that it was not the case that an applicant would apply for one particular class of membership with AICLA, but rather, AICLA would make an assessment on the evidence provided and would determine whether an applicant qualified for provisional or affiliate membership or whether they didn’t qualify at all: Transcript 88:30-36.

59    Mr Libke accepted that, under the membership requirements that applied until October 2017, a Diploma of Loss Adjusting by RPL awarded by ASA would have been sufficient for the purposes of Pathway B for an affiliate membership of AICLA: Transcript 89:18-35.

60    Mr Libke also accepted that Mr Brennan’s application could have been accepted for provisional membership under the AICLA membership requirements which applied between October 2017 and October 2020, subject to Mr Brennan agreeing to (i) complete Module LA501 from ANZIIF within six months of joining, (ii) complete the four module Certificate in Loss Adjusting Practice within three years of joining AICLA, and (iii) comply with the requirements of continuing professional development as prescribed by AICLA’s board: Transcript 89:46 – 91:7.

61    Again, counsel for ASA sought to make much of the fact that Mr Libke’s response to Mr Brennan did not inform Mr Brennan that while he did not qualify for admission as an affiliate member, that he could qualify as a provisional member if he agreed to the matters noted above. Counsel for ASA persisted with this line of questioning for some time. For the reasons already noted above, in my view, this line of questioning does not lead anywhere.

62    As Mr Libke stated repeatedly in response to the line of questioning, in his application form, Mr Brennan explicitly confirmed that he had successfully completed (rather than intended to enrol or had enrolled in) AICLA’s entrance examination criteria, being Module LA501 – Introduction to Loss Adjusting from ANZIIF’s Diploma of Loss Adjusting. However, Mr Brennan then failed to provide the required evidence of having completed LA501 and instead, provided evidence of having obtained a Diploma of Loss Adjusting from ASA. In the context of the information given by Mr Brennan, and the subsequent material provided by Mr Brennan which failed to support the information in his application form, it was plainly appropriate for Mr Libke to seek clarification from Mr Brennan in respect of the studies he had completed, and to note that studies needed to be completed in the ANZIIF Diploma of Loss Adjusting. Mr Libke specifically stated “[t]o proceed with your application, you will need to show evidence of enrolment in LA501 or evidence of an application for RPL”. As Mr Libke stated, he was not writing to Mr Brennan on the basis that he had applied for affiliate membership or provisional membership, rather, he was writing to Mr Brennan on the basis that he had applied for membership that was yet to be determined: Transcript 93:16-22. As noted above, Mr Brennan, in response to Mr Libke’s email, actually stated that he had completed his Introduction to Loss Adjusting through ANZIIF some time in the past, although it took Mr Brennan an extended period to obtain his academic record from ANZIIF.

63    It is, in my view, quite beside the point that Mr Libke could have theoretically outlined to Mr Brennan the pathways for provisional membership to AICLA given the context of the information contained in the application form to which Mr Libke was responding.

64    Counsel for ASA also suggested to Mr Libke that he could have simply requested evidence of Mr Brennan having completed the relevant ANZIIF course, and did not need to mention the ASA course at all: Transcript 95:39-96:28. Again, this goes nowhere. Mr Libke noted that the ASA diploma was provided as evidence of having completed the relevant ANZIIF course. In this context, it was obviously appropriate for Mr Libke to explain that for the purposes of entry to AICLA, the relevant qualification provided by Mr Brennan was non-accredited: Transcript 95:39-96: 17.

65    Mr Libke accepted that, following the amendments to AICLA’s membership requirements in October 2020, Mr Brennan could have become an affiliate member having been awarded his Diploma of Loss Adjusting by RPL from ASA: Transcript 97:6-7. Mr Libke said that AICLA had never refused membership to people who had completed the ASA course when the AICLA rules allowed them to be admitted: Transcript 98:12-30.

66    Mr Libke was asked in cross-examination why it took so long to approve Mr Brennan’s membership if the membership rules had changed in October 2020. It was put to Mr Libke that he had needlessly delayed Mr Brennan’s application for membership to AICLA. Mr Libke stated that AICLA had responded to Mr Brennan’s application for membership and that it was Mr Brennan’s responsibility to advance his application, rather than for AICLA to “chase up every applicant who may submit something and for [AICLA] to keep records of it”. Mr Libke stated that at the time of Mr Brennan’s application, AICLA directed him to obtain his academic transcript from ANZIIF which Mr Brennan confirmed he was doing: Transcript 101:18-34. It was not until April 2021 that Mr Brennan obtained his academic records from ANZIIF, at which point he provided them to AICLA.

4.    ASA’s submissions

67    Counsel for ASA, Mr Levine, advised me that ASA relied upon its opening written submissions, dated 10 March 2025, together with the short oral submissions made in final address.

68    ASA submit that the 30 June Email was defamatory in that an ordinary, reasonable person reading the email would have understood it to convey the following defamatory imputations:

(a)    (first imputation) ASA is misleading students in relation to the accreditation status of its course.

(b)    (second imputation) ASA is not a fit and registered training body in that it falsely declares its course to be registered and accredited when they are not.

(c)    (third imputation) ASA falsely declared that its course is nationally recognised and meets the quality assurance standards of the Australian Qualifications Framework.

(d)    (fourth imputation) ASA’s course would not satisfy the criteria for AICLA to provide an exemption from the admission requirements of AICLA.

(e)    (fifth imputation) ASA’s course was inferior to AICLA’s course as it would not satisfy the criteria for admission thereto, or for an exemption from its requirements.

69    ASA submit that the above imputations are conveyed by AICLA’s words in the 30 June Email that:

AICLA admittance requirements as outlined in the application form states that studies be completed in the ANZIIF Diploma of Loss Adjusting. I note that your studies are in a non-accredited Diploma course

70    The respondents plead that the contents of the 30 June Email were true and correct and that the alleged defamatory meanings were not conveyed. The respondents also plead the defence of qualified privilege under s 30 of the relevant Defamation Act 2005 which requires the respondents to prove the following matters:

(a)    the recipient had an interest or apparent interest in having information on some subject;

(b)    the matter is published to the recipient in the course of giving to the recipient information on that subject; and

(c)    the conduct of the respondent in publishing that matter is reasonable in the circumstances.

71    In response to the respondents’ reliance on the defence of qualified privilege, ASA submit that the 30 June Email should not have been published to Mr Cambridge or Mr Brennan as they had no interest in receiving information on ASA’s course. ASA submit that Mr Libke could not have believed on reasonable grounds that Mr Brennan and Mr Cambridge had an interest in receiving the information in the email which was volunteered for no apparent reason and had nothing to do with Mr Cambridge in particular, save for the “vague assertion” that Technical Assessing would receive a bulk discount for AICLA membership subscriptions of its employees.

72    ASA further submit that the information in the 30 June Email would not fall within statutory qualified privilege as there is no necessary connection between the imputations and the publication of information that Mr Brennan did not qualify to be a member of AICLA. ASA also submit that the conduct of the respondents in publishing the 30 June Email was not reasonable. ASA submit that Mr Libke should not have sent the 30 June Email to Mr Cambridge and should have spoken to ASA’s sole director, Mr Evans, prior to sending the email. ASA further submit that the 30 June Email will be subject to the qualified privilege only if Mr Libke published the email for the relevant purpose as opposed to an extraneous purpose.

73    The respondents also plead triviality, pleading that if the 30 June Email was defamatory, the circumstances of the publication were such that ASA was unlikely to sustain any harm. ASA submit that the respondents have not made good the defence of triviality, and that the limited number of recipients of the 30 June Email is not decisive in establishing the respondents’ triviality defence. ASA submit that the respondents have not established that there is an absence of a real chance, or the absence of a real possibility, of harm to ASA. It submits that the respondents are required to establish that, at the time of publication, the circumstances were such that ASA was unlikely to suffer any harm.

74    ASA submit that the defence of triviality is not based on the actual harm suffered but the circumstances of the publication, which would include whether the recipient of the 30 June Email would believe the defamatory publication. ASA rely upon the evidence of Mr Evans in his affidavit dated 30 November 2023, that ASA had suffered loss of revenue from the publication of the 30 June Email. ASA also rely upon the affidavit of Nell Robertson, a chartered loss adjuster, that she had deferred making a recommendation to her staff members to enrol in ASA’s Diploma of Loss Adjusting course, pending the outcome of these proceedings, as she needed her staff to be members of AICLA.

75    As to the misleading and deceptive conduct claim, ASA submit that the 30 June Email was published in trade or commerce as Mr Brennan was applying to be a member of AICLA, which would have required the payment of membership fees. ASA also submit that the email was false or misleading as it conveyed that ASA’s course would not satisfy the academic criteria for admission to AICLA.

76    As to the claim of injurious falsehood, ASA submit that the 30 June Email contains a false statement concerning the quality of ASA’s business, that was published to a third party, Mr Cambridge, that caused actual damage which involved malice. ASA submit that it has suffered loss and damage that was the natural and probable result of the 30 June Email, as potential students would choose the ANZIIF course to qualify for membership of AICLA.

5.    Consideration

5.1    Defamation

5.1.1    Threshold considerations

Jurisdiction and publication

77    The respondents did not challenge the satisfaction of the publication test at trial. The claim for defamation is brought under the uniform defamation legislation with the applicable law alleged to be the Defamation Act 2005 (Qld) (DA). Mr Evans read the 30 June Email in Queensland. There is no evidence as to where Mr Brennan was when he read the 30 June Email. The evidence of Mr Cambridge was that it was likely that he read it in Sydney. For the purpose of this proceeding, I am prepared to assume that the applicable law is that of the DA.

Standing to sue

78    ASA is a corporate applicant. This means that ASA has no cause of action for defamation in relation to the publication of a defamatory matter about it unless it was an excluded corporation at the time of the publication: s 9(1), DA. ASA allege that it is an excluded corporation as it has fewer than ten employees: s 9(2)(b) DA. I find on the evidence that ASA did, at the time of the publication on 30 June 2020, have less than ten employees. Mr Evans, in cross-examination, said that he had two employees, Mr Flynn, his national training manager, and his daughter, who worked in administration. Mr Evans said that he had a number of volunteer trainers. I am satisfied that ASA does have standing to sue.

Identification

79    The 30 June Email does not refer expressly to ASA.

80    ASA plead that the email was of and concerning ASA by reason that “the recipient” of the 30 June Email was aware of extrinsic facts, namely:

The subject matter of the email was in relation to the Applicant’s course and accreditation status, and in relation to the admission requirements of the first Respondent.

81    The respondents accept this follows in relation to Mr Brennan as he prepared the application form for membership of AICLA, relying upon the Diploma of Loss Adjusting course he completed at ASA.

82    The respondents submit that it does not follow that Mr Cambridge, when he received the 30 June Email, understood the statement “I note that your studies are in a non-accredited Diploma course” to mean ASA. Mr Cambridge’s evidence was that he didn’t know Mr Evans, and was not aware at the time that ASA ran a course: Transcript 121:5-9.

83    I am not satisfied on the evidence that Mr Cambridge, at the time he received the 30 June Email (cf., at a later point in time, such as when the separate email chain between Mr Brennan and Mr Evans on 2 July 2020 was forwarded to him by Mr Brendan Sears later that day), identified ASA as being the body referred to in the email as providing “a non-accredited Diploma course”.

5.1.2    Imputations not conveyed

84    The natural and ordinary meaning of words may either be the literal meaning or an implied or inferred meaning based on the general knowledge of the ordinary reasonable reader. The general principles were not in dispute between the parties and are conveniently summarised by White J in Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33; [2015] FCA 652, where his Honour listed the principles to be applied in the determination of meanings within publications at [63]-[73] as follows:

(a)    The ordinary reasonable meaning of a matter may be either its literal meaning or that which is implied or inferred by the matter. It includes inferences and conclusions which the ordinary reasonable person draws from the words used. The reader may engage in a certain amount of ‘loose thinking’.

(b)    The ordinary reasonable reader does not look at the matter complained of in isolation but rather in the whole context in which it is published. This can include surrounding circumstances.

(c)    In determining what is reasonable in any case, a distinction must be drawn between what ordinary reasonable readers (drawing on their own knowledge and experience of human affairs) could understand from what the publisher has said in the matter and the conclusion which the readers could reach by taking into account their own beliefs which have been excited by what was published. It is the former, not the latter, which is pertinent.

(d)    The meaning which the respondents intended to convey by the words published is irrelevant to the ascertainment of their natural and ordinary meaning. Similarly, evidence as to the actual understanding of the words by those who read them is immaterial.

(e)    The determination of the natural and ordinary meaning of words involves the application of the ‘single meaning rule’. While words may be reasonably capable of being understood as bearing more than one meaning by different readers, what matters is what the adjudicator at the trial thinks is the one and only meaning that the readers as reasonable people should have collectively understood the words to bear. That is the natural and ordinary meaning of words in an action for libel.

85    I am not satisfied that the 30 June Email conveys any of the imputations alleged by ASA. The imputations alleged do not arise from the text used when read in context. The 30 June Email was Mr Libke’s response to Mr Brennan’s application for membership of AICLA. Fairly read, it was Mr Libke’s response to his assessment of Mr Brennan’s application in which he sought further information from Mr Brennan. The imputations alleged by ASA are strained, forced and do not reflect the natural and ordinary meaning of the words used in the 30 June Email.

86    In respect of the first imputation, it is plain from the surrounding context in which the email was sent, and the 30 June Email itself which explicitly stated “AICLA admittance requirements as outlined in the application form states that studies be completed in the ANZIIF Diploma of Loss Adjusting”, that Mr Libke’s comments in the email were directed specifically at AICLA’s membership requirements. To suggest that Mr Libke’s comment, that Mr Brennan’s studies were in a non-accredited diploma, was to convey that ASA was misleading students in relation to the accreditation status of its course, is to divorce the words “non-accredited” from the entirety of the language and context surrounding it. Mr Libke’s comment regarding ASA’s course being “non-accredited” was specifically in relation to it not being an accredited course for the purposes of AICLA’s membership requirements. So much is plain from the text and context of the email. It was a simple factual statement regarding AICLA’s membership requirements at the time.

87    For the same reasons expressed above in relation to the first imputation alleged, it is also clear that the second imputation and third imputation are not conveyed by the 30 June Email. Again, the imputations which ASA alleges are conveyed require the words “non-accredited” to be read entirely divorced from the broader text and context of the 30 June Email.

88    In respect of the fourth imputation, there is, again, no basis to find that the imputation has been conveyed. ASA has not made clear what particular “exemption” from AICLA’s admission requirements it seeks to rely on, nor how Mr Libke’s comment that the ASA diploma was non-accredited for the purposes of AICLA’s membership requirements says anything about AICLA’s criteria for providing an exemption. In this context, as I’ve already noted in these reasons above, Mr Libke’s response should be understood in the context of Mr Brennan’s application in which Mr Brennan had specifically confirmed that he had completed ANZIIF’s Module LA501, but then failed to provide evidence of having completed that module. In this context, Mr Libke’s response seeking clarification of Mr Brennan’s application can hardly be said to be conveying anything regarding the criteria for AICLA to provide an exemption from its admission requirements.

89    This also leads into the fifth, and the most general imputation alleged, that ASA’s course was inferior to AICLA’s course as it would not satisfy the criteria thereto, or for an exemption. Putting aside that the relevant course is that of ANZIIF, there is no such meaning that can be discerned from the 30 June Email. Mr Libke’s comment, that ASA’s diploma was not accredited in the context of AICLA membership, was a simple factual statement regarding AICLA’s membership requirements made in clarification of the information provided by Mr Brennan in his application form. It was not, as ASA seeks to suggest, a statement as to the quality of ASA’s course. No such meaning is evident from the text and context of the email.

90    To the extent that ASA, or Mr Evans specifically, believed that AICLA’s membership requirements, at the time, reflected adversely as to the quality of ASA’s course, that is an entirely separate matter. The matter before me relates to whether the 30 June Email conveyed that ASA’s course was inferior to AICLA’s, and plainly, it did not.

91    Having determined that the 30 June Email does not convey any of the imputations alleged by ASA, ASA’s defamation claim must fail. It is therefore not relevant to consider the defences of statutory qualified privilege, and triviality which the respondents raised.

5.2    Misleading representations

92    ASA also brings a claim for misleading or deceptive conduct under s 18 of the ACL in respect of the 30 June Email. The representations alleged to be made by the 30 June Email are largely variants of the imputations allegedly conveyed under ASA’s defamation claim. The representations, as particularised under paragraph 8 of ASA’s statement of claim, are as follows:

(a)    The representations were made about a competitor’s course and misleading in that they allege they were “not-accredited”.

(b)    The representations were made that ASA’s course was inferior to AICLA’s course.

(c)    The representations were made that ASA’s course would not satisfy the exemption requirements of AICLA which should have been assessed on a case by case basis.

(d)    The representations were designed to cause damage to ASA’s standing and reputation and induce Mr Brennan into pursuing the course offered by AICLA.

93    To establish a contravention of s 18 of the ACL, which prohibits a person, in trade or commerce, engaging in conduct that is misleading or deceptive or likely to mislead or deceive, ASA must establish first that the relevant representations were made (noting that the nature of the representations alleged do not appear to be explicit from the 30 June Email and therefore, would need to be implied from the 30 June Email), and that the representations were misleading or deceptive or likely to mislead or deceive.

94    No sustainable representation arising out of the 30 June Email has been articulated by ASA. The reasons for this are largely the same as already expressed in respect of ASA’s defamation claim given the representations alleged to be made are largely variants of the imputations ASA alleged.

95    As already noted above, the 30 June Email did not make a generalised statement that ASA’s course was “non-accredited”. Mr Libke’s comment was specifically that ASA’s course was non-accredited for the purposes of AICLA’s membership requirements. In addition, for the reasons provided above, no representation was made by Mr Libke that ASA’s course was inferior to that of AICLA (or more accurately, ANZIIF), and no representation was made as to the exemption requirements for AICLA membership. Further, there is no evidentiary basis to allege that Mr Libke’s purpose of sending the 30 June Email was to cause damage to ASA’s standing and reputation, and to induce Mr Brennan into pursuing the course offered by ANZIIF.

96    Accordingly, ASA’s claim for misleading or deceptive conduct under s 18 of the ACL must fail. It is unnecessary to consider whether the conduct occurred “in trade or commerce”.

5.3    Injurious falsehood

97    ASA had pleaded its claim for injurious falsehood by relying on the same imputations alleged in respect of its defamation claim, pleading that the imputations are false: Statement of Claim, [10]. ASA alleged that the respondents made the injurious imputations maliciously in that they were aware that the imputations were false or, alternatively, were recklessly indifferent to their truth or falsity, and that ASA suffered loss and damage as a result.

98    Gummow J identified the following four elements for a cause of action for injurious falsehood in Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 at [52]:

(a)    a false statement of or concerning the plaintiff’s goods or business;

(b)    publication of that statement by a defendant to a third person;

(c)    malice on the part of the defendant; and

(d)    proof by the plaintiff of actual damage suffered as a result of the statement.

99    As I have found that the imputations alleged by ASA in its defamation claim were not conveyed by the 30 June Email, ASA’s claim fails at the first hurdle.

5.4    Loss and damage

100    Given that I have determined that each of ASA’s causes of action have failed, the question of loss and damage is largely irrelevant. I will however make the following observations in this respect.

101    Ms Bowman was engaged by the respondents as an expert to give evidence regarding whether ASA suffered any loss and damage as a result of the 30 June Email. Ms Bowman is a qualified Chartered Accountant and Managing Director of the Forensic and Litigation Consulting practice at FTI Consulting.

102    Ms Bowman prepared an expert report on loss and damage, dated 29 February 2024, and two joint expert reports with ASA’s expert, Mr O’Shea, dated 2 July 2024 and 5 December 2024.

103    Ms Bowman was cross examined about her independence as an expert witness. It transpired that many years ago, Ms Bowman had attended a course at ASA from which she obtained a “Certificate III in Investigations”. Ms Bowman stated that she likely attended the course sometime between 2011 to 2015, that the course was paid for by her employer at the time, and that she attended the course in-person for one day (or possibly two days at most). From evidence provided by Mr Evans, it appears that Ms Bowman completed the course in May 2016. In her affidavit made on 31 January 2025, Ms Bowman deposed that she did not realise that she had completed a course at ASA, and stated that, at some point, it occurred to her that she had completed a course at ASA (although she could not recall specifically when) but did not mention this to her instructing solicitors as she did not consider it to be relevant to her opinions on the matter. Ms Bowman maintained that the certificate obtained from ASA did not have any impact on her ability to provide an independent opinion on the matter.

104    Counsel for ASA sought to impugn Ms Bowman’s independence as an expert. Ms Bowman accepted that if she had a negative experience with ASA, it could theoretically impact her independence, and that, with the benefit of hindsight, it would have been better to inform her instructing solicitors immediately upon becoming aware of the issue. Ultimately however, I do not accept that Ms Bowman, having attended an ASA course and failing to immediately disclose the course to her instructing solicitors, in any way affected Ms Bowman’s independence as an expert witness nor the opinions which she expressed, which I accept. The evidence makes clear that Ms Bowman attended the course many years ago and has very limited recollection of the course or of any particular experience with ASA. I accept Ms Bowman’s evidence that obtaining the Investigations Certificate from ASA did not have any impact on her ability to provide an independent opinion.

105    Turning now to the joint expert reports, the first joint expert report is dated 28 June 2024. The key takeaway from the first joint expert report is that, in relation to whether the experts were in a position to assess ASA’s relevant loss and damage as a result of the 30 June Email, the experts agreed that whilst ASA suffered a decrease in profits post the issuing of the 30 June Email, this was not representative of loss and damage. The experts agreed that there was insufficient information available to the experts to assess loss and damage, and outlined the further information that would be required to assess the loss and damage of ASA.

106    The second joint expert report, dated 29 November 2024, followed the provision of further information by ASA. In the second joint expert report, the experts noted their agreement that they had not been provided with any documentation which supported that ASA had suffered any loss or damage as a result of the 30 June Email.

107    The reasons for this conclusion were summarised by Ms Bowman as follows, which Mr O’Shea agreed with:

(a)    In relation to requests to provide documents supporting the Applicant’s claim that it ‘lost’ students by reason of the Relevant Email, the Applicant did not discovery any useful documents…;

(b)    The total annual revenue generated by the Applicant from the ‘Diploma of Loss Adjusting’ course (the subject of the Relevant Email) as a percentage of total annual revenue earned by the Applicant across all courses in FY19 and FY20 was only 2%. Further, the student enrolment numbers in the ‘Diploma of Loss Adjusting’ course represented only 1% of the Applicant’s total student enrolment numbers in FY19 and FY20. Accordingly, in FY19 and FY20 (the periods prior to the Relevant Email) the ‘Diploma of Loss Adjusting’ course did not represent a material portion of the Applicant’s revenue, and as a result, did not appear to be a major course offered by the Applicant;

(c)    Both the revenue and student enrolment numbers in relation to the ‘Diploma of Loss Adjusting’ course (the subject of the Relevant Email) increased after the Relevant Email, with the exception of FY23. The FY23 revenue and student enrolment numbers were equivalent to those in FY20, being the period immediately prior to the Relevant Email;

(d)    Mr Cambridge stated that if the Applicant has lost revenue, it was not as a result of his actions or anyone at Technical Assessing. Mr Cambridge stated that he did not discuss the contents of the Relevant Email with anyone; and

(e)    Mr Evans asserts that the loss of income in relation to the Relevant Email was primarily in relation to ‘Certificates 3 and 4 investigative’ courses which are courses usually undertaken in conjunction with the ‘Diploma of Loss Adjusting’ course. However, the student enrolment data analysed in Table 6 above does not support that there is a relationship between student enrolments in the ‘Diploma of Loss Adjusting’ course and the ‘Certificates 3 and 4 Investigative’ courses, as suggested by Mr Evans. Further, Mr Evans did not provide any documents to support his assertion.

108    “Table 6” of the joint expert report, referred to in the extract above, is reproduced below and shows the student enrolment numbers for the “Certificates 3 and 4 Investigative” courses of ASA, compared to those of the Diploma of Loss Adjusting course from FY19 to FY24.

109    On the question of loss and damage, ASA sought to rely on the affidavit of Mr Evans made on 31 October 2024 in which Mr Evans stated, at [6]:

The Applicant’s loss of income was primarily in the loss of students in the Certificate 3 Investigative Services and the Certificate 4 Government Investigation Services which was required for a private investigator’s licences that was an associated qualification normally required to be a loss adjuster for the major insurance companies.

110    In this respect, I accept the reasons expressed by Ms Bowman in the second joint expert report, which Mr O’Shea also agreed with, that the student enrolment data does not support a view that there is any relationship between student enrolments in the Diploma of Loss Adjusting and the Certificates 3 and 4 Investigative courses.

111    With respect to Technical Assessing in particular, in answer to a question during the supplementary discovery process, Mr Evans responded, “[n]o enrolled applicant student, to the best of my knowledge, was a Technical Assessing employee at the time of enrolment between FY17 and FY23”.

112    Additionally, ASA also sought to rely on the affidavit of Ms Robertson. As noted above, Ms Robertson was not required by the respondents for cross-examination, and her affidavit evidence was unchallenged. Her evidence is as follows:

[16]    I need to employ loss adjusters who can become members of AICLA in order for GHA to successfully obtain work from most of the major insurance companies.

[17]    I currently have three staff members who would like to complete a Diploma of Loss Adjusting. However, I am concerned that they may not be accepted as members of AICLA upon completion of such Diploma if it is awarded by the Applicant.

[18]    I have deferred making a recommendation to staff members to enrol for the Applicant’s Diploma of Loss Adjusting for the time being, pending the outcome of these proceedings.

113    I accept the respondents’ submissions that Ms Robertson’s concerns are linked to whether or not her staff may be accepted as members of AICLA upon completion of ASA’s Diploma of Loss Adjusting. I accept that this bears no causal relationship to the pleaded claims.

6.    Disposition

114    The proceeding will be dismissed. The applicant will pay the respondents’ costs of the proceeding.

Associate:

Dated:    12 August 2025