Case Citation:O v Credit Provider [2004] PrivCmrA 5

Subject Heading: Compensation sought as a result of disputed consumer credit default listing / declined to investigate on the basis that the respondent had not had an adequate opportunity to deal with the complaint.

Law: Section 18E(1)(b)(vi)(A), section 18E(1)(b)(vi)(B) and section 18E(8)(c)) of the Privacy Act 1988 (Cth); paragraph 2.7 of the Credit Reporting Code of Conduct; section 41(2)(b) of the Privacy Act 1988 (Cth)

Facts: The complainant had devoted significant time and resources towards developing a business venture. A finance institution refused his application to finance the venture due to an overdue account (default) listed on his consumer credit file.

The complainant had no knowledge of the default and immediately notified the credit provider of the listing. The credit provider removed the default listing three weeks later.

Several months after the credit provider removed the payment default the complainant wrote to the Commissioner alleging that the credit provider had improperly listed the default and that he had suffered significant financial loss as a result and was seeking compensation on this basis. According to the complainant, he had paid the debt owed to the credit provider and was at no time sixty days in arrears. He alleged that the credit provider experienced a computer error and consequently listed the default.

Although the complainant had contacted the respondent and asked that it remove the default, the documents the complainant provided suggested that the respondent was not aware that the complainant was seeking compensation.

Issues: The Privacy Act permits a credit reporting agency to list a default only if:

• the debt is at least 60 days overdue (section18E(1)(b)(vi)(A)) and;
• the credit provider has taken steps to recover part or all of the amount outstanding (section18E(1)(b)(vi)(B)); in particular, the credit provider must have sent a written notice to the last known address of the individual advising them of the overdue payment and requesting payment of the amount outstanding (paragraph 2.7 of the Credit Reporting Code of Conduct); and
• the credit provider has notified the individual that it may provide information to a credit reporting agency (section 18E(8)(c)).

Outcome: Section 41(2)(b) of the Act, gives the Commissioner a discretion not to investigate, or not to investigate further, an act or practice about which a complaint has been made if he or she is satisfied that the complainant has complained to the respondent about the act or practice and the respondent has not yet had an adequate opportunity to deal with the complaint.

The complainant was contacted and confirmed that he had not advised the respondent of his compensation claim either verbally or in writing. The Commissioner's staff discussed the complaint handling process with the complainant and noted that the respondent was not aware that the complainant was seeking financial compensation. They suggested that it would be beneficial for the parties to attempt to resolve this matter before the Privacy Commissioner became involved. Both parties were happy to do this. For this reason the Commissioner declined to investigate this matter under section 41(2)(b) of the Act on the basis that the respondent had not yet had an adequate opportunity to deal with the compensation aspect of the complaint.

The complainant was informed that if he wished to pursue compensation under the Act he would have to make that request in writing to the respondent and give the respondent thirty days to respond before returning the complaint to the Commissioner. The Commissioner has not been asked to reconsider this complaint.

OFFICE OF THE PRIVACY COMMISSIONER June 2004