Case Citation: Q v Credit Provider B [2005] PrivCmrA 16

Subject Heading: Re-listing of an overdue account on an individual's consumer credit information file.

Law: Section 18A of the Privacy Act 1988 (Cth) and section 2.8 of the Credit Reporting Code of Conduct

Facts: Credit provider A listed an overdue account on the complainant's consumer credit information file (credit file). Five years from the original date of the listing the overdue account notation was purged from the credit file in accordance with section 18F of the Privacy Act.

At the time the overdue account was purged it remained unpaid by the complainant. The debt was then sold to credit provider B to whom the debt was assigned. Approximately three months later the same overdue account was re-listed on the complainant's credit file by credit provider B.

Issues: Section 2.8 of the Credit Reporting Code of Conduct (the Code), issued under section 18A of the Privacy Act prohibits the listing of statute-barred debts with a credit reporting agency. Section 2.8 of the Code provides that a credit provider must not give to a credit reporting agency information about an individual who is overdue in making a payment if recovery of the debt by the credit provider is barred by the statute of limitations.

Paragraph 55A of the Explanatory Notes to the Code provides that the prohibition in paragraph 2.8 includes the re-listing of information with the same credit reporting agency after the maximum period permitted for the retention of such information on a credit file has expired.

The Privacy Commissioner investigated the complainant's allegations under section 40(1) of the Act. The complainant lived in a state with a law stating that after six years from the date the cause of action arose, the action could no longer be brought before the Courts. More than six years had passed since the cause of action arose, hence it could no longer be pursued before the Courts. Consequently, under the Code this debt could not be listed on the individual's credit file after six years, even if it had never been listed before. However, it was re-listed again after the maximum period permitted for the retention of such information on a credit file had expired, and after the period of limitation had expired, therefore in breach of the Code.

Outcome: Following the Commissioner's investigation credit provider B acknowledged that it had made an error and that the listing should be removed. Credit provider B contacted the credit reporting agency and instructed the credit reporting agency to remove the listing immediately.

The listing was removed and credit provider B apologised to the complainant for any inconvenience that the listing had caused. The complainant accepted the resolution. The Commissioner then decided under section 41(2)(a) of the Privacy Act to cease investigation of the complaint on the grounds that credit provider B had dealt adequately with the matter.

OFFICE OF THE PRIVACY COMMISSIONER June 2005