Case Citation:R v Credit Provider [2004] PrivCmrA 7

Subject Heading: Disputed consumer credit default listing / declined to investigate on the basis that the complaint was made more than twelve months after the complainant became aware of the act or practice.

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

Facts: The complainant alleged that a credit provider listed an overdue account (a default) on her consumer credit file despite the fact that it had said that it would cease collection activity. The complainant claimed that the improperly listed default, which had been placed on her file almost four years earlier, had prevented her from obtaining credit and purchasing a home. The complainant sought compensation for financial loss she had suffered as a result the alleged breach of the Act.

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 (section18E(8)(c)).

If a credit provider has reported an individual as overdue in relation to a debt and the individual subsequently pays the debt in full, the credit provider is required by section 18F(3) to inform the credit reporting agency that the individual is no longer overdue, and must do so as soon as practicable.

Outcome: Under section 41(1)(c) of the Act, the Privacy Commissioner may decide not to investigate a complaint about an act or practice if he or she is satisfied that the complaint was made more than twelve months after the complainant became aware of the act or practice.

It was evident from the information supplied by the complainant that she had brought this issue to the Commissioner's attention almost four years after she became aware of the default. It was likely that the evidence in this matter was stale and that key people would no longer be able to recollect the events that had occurred. Consequently, the Commissioner declined to investigate this complaint under section 41(1)(c) of the Act.

OFFICE OF THE PRIVACY COMMISSIONER June 2004