Applicant 4102023 v ActewAGL Retail (Energy & Water)
[2024] ACAT 61
•21 August 2024
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
APPLICANT 4102023 v ACTEWAGL RETAIL (ENERGY & WATER) [2024] ACAT 61
EW 2023/0410
EW 2023/0411
Catchwords: ENERGY AND WATER – substantial hardship – where Tribunal revoked order that Utility maintain services to premises after customer moved premises – where customer made further application to the Tribunal in relation to her energy and water accounts – whether application is properly characterised as a set aside application – whether respondent is proposing to disconnect customer’s electricity or gas services
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 39
Privacy Act 1988 (Cth) s 6
Utilities Act 2000 Part 12 ss 172, 178, 179, 180, 184, Dictionary
Subordinate
Legislation cited: ACT Civil and Administrative Tribunal Procedures Rules 2020 r 70
Cases cited: Commissioner of Police (NSW) v Deputy State Coroner (NSW) [2021] NSWSC 398
Secretary of the Department of Communities and Justice v X [2019] FamCA 521
Tribunal:Presidential Member J Lucy
Member D Lucas AM
Date of Orders: 21 August 2024
Date of Reasons for Decision: 21 August 2024
Date of Publication: 28 August 2024
AUSTRALIAN CAPITAL TERRITORY) EW 2023/0410
CIVIL & ADMINISTRATIVE TRIBUNAL) EW 2023/0411
BETWEEN:
Applicant 4102023
Applicant
AND:
ICON RETAIL INVESTMENTS LIMITED ACN 074 371 207 AND AGL ACT RETAIL INVESTMENTS PTY LIMITED ACN 093 631 586 TRADING AS ACTEWAGL RETAIL
Respondent
TRIBUNAL:Presidential Member J Lucy
Member D Lucas AM
DATE:21 August 2024
ORDER
The Tribunal orders that:
The applicant is to be referred to as ‘Applicant 4102023’.
There is to be no publication by either party or any other person of the matters contained in the documents filed with the Tribunal or received by the Tribunal for the hearing.
There is to be no public access to the file or to any audio or written records of proceedings.
………………………………..
Presidential Member J Lucy
For and on behalf of the Tribunal
REASONS FOR DECISION
This matter involves a substantial hardship application made by the applicant under Part 12 of the Utilities Act 2000 (the UtilitiesAct) in relation to her electricity and gas usage with the respondents (the Utility). At the hearing of her application, the applicant requested the Tribunal to restore a payment plan which it had previously put in place in relation to her electricity and gas bills.
We dismissed the applicant’s application at the hearing on the basis that the Tribunal does not have power to make any orders under Part 12 of the Utilities Act in the present circumstances. That is because the Utility has not threatened to withdraw gas and electricity services to the applicant’s home and is treating her account as being protected. We encouraged the applicant at the hearing to contact the Utility for the purposes of arranging a payment plan.
These are our reasons for our decision.
Background
In August 2023, the applicant applied to the Tribunal for orders in relation to the withdrawal or proposed withdrawal by the Utility of electricity and gas services to her property. The applicant’s gas service had been disconnected in March 2023 and, according to the Utility’s records, she had not responded to communications from the Utility about this. In her application, she stated that she was struggling financially and had been in an extremely violent relationship since 2017. She also referred in her application to a massive decline in her mental and physical health.
The Tribunal made an interim order on 25 August 2023 directing the Utility not to withdraw the Utility Services and to give the Tribunal its records in relation to the services.
The Utility’s records indicated that, as of 16 October 2023, the applicant’s electricity account balance was $5,242.32 and her gas account balance was $3,647.85.
The Tribunal held a hearing on 18 October 2023.
At that hearing, the Tribunal directed the Utility to discharge $1,000 from the applicant’s electricity debt. It also directed the Utility to maintain the gas and electricity services at the applicant’s premises on condition that she pay the Utility $50 per fortnight for electricity and $10 per fortnight for gas. The Tribunal further ordered that, if the applicant failed to comply with those conditions, the Utility may apply to the Tribunal for revocation of the orders.
The Tribunal corresponded by email with the applicant in February 2024, and she indicated that she had moved address. She provided the Tribunal with her new address on 6 February 2024.
On 7 February 2024, the Tribunal revoked its directions to the Utility not to withdraw gas and electricity services at the original premises.
On 1 March 2024, the Tribunal emailed the applicant, advising her that she would need to reapply to the hardship program should she require the Tribunal’s support. The applicant made a hardship application that day.
On 5 March 2024, the Tribunal wrote to the applicant, describing the application she had made as an application to set aside the Tribunal’s decision to dismiss her hardship application. The Tribunal’s letter indicated that the application to set aside would be considered at a hearing on 27 March 2024.
The applicant did not attend the hearing scheduled for 27 March 2024 and did not attend a further hearing scheduled for 18 April 2024.
The Tribunal wrote to the applicant on 18 April 2024, informing her that, should she wish to make an application to set aside the Tribunal’s refusal to set aside her application, she should complete a hardship application form.
On 19 June 2024, the applicant completed a hardship application form. In that form, she stated:
I had a payment plan set up for previous address but I moved and I want to apply for same agreement but for new address.
When she completed the form, the applicant did not refer to setting aside any previous orders.
On 28 June 2024, the Tribunal wrote to the applicant, informing her that her application to set aside the Tribunal’s decision of 7 February 2024 to dismiss her hardship application for failure to comply with conditions was listed for hearing on 4 July 2024.
The applicant attended the hearing on 4 July 2024, accompanied by her father and her six-month-old baby.
The applicant explained at the hearing that she is a stay-at-home mum. She told the Tribunal about her financial situation.
The applicant also told the Tribunal that, at her previous residence, she was subject to violence and break-ins from her ex-partner, even though he was not living with her. She said she had to keep living elsewhere for her own protection
The Tribunal rang the Utility during the hearing and spoke to an officer in the “Staying Connected” area. The officer explained that the applicant is under the Utility’s Enduring Support Scheme, due to having been the victim of domestic violence. The officer described the applicant’s account as being “protected.” The officer said that the applicant was not currently threatened with disconnection and would not be disconnected if she engaged with the Utility’s program. The officer told the Tribunal that it is possible that the applicant could be disconnected in the future if she did not engage or make any payments. The officer also said that the applicant could enter into a payment plan with the Utility and the amount of repayments would be guided by ongoing usage levels.
Legislative scheme
Part 12 of the Utilities Act[1] provides for the making of complaints to the Tribunal about utilities.
[1] The Utilities Act sections 169-184
A table in section 172 of the Utilities Act provides for the persons who may apply to the Tribunal about specified matters. Relevantly, a “consumer” may apply to the Tribunal in relation to the following complaint: “a utility fails to provide a utility service to consumer or withdraws a utility service from consumer, and failure or withdrawal causes substantial hardship, or is likely to cause substantial hardship, to consumer”.[2]
[2] The Utilities Act s 172, table 172, item 3
A “consumer” is defined in the Dictionary to the Act to mean a customer for the service or an occupier of the customer’s premises and to include an invitee of the customer or occupier.
Although section 172 refers to the withdrawal of a utility service, it is plain from other provisions that this includes an anticipated withdrawal of the service. Section 178(1)(b) provides that the section applies if the Tribunal is satisfied that the respondent to a complaint has caused, or would cause, substantial hardship by failing to provide, or withdrawing, a utility service (emphasis added). Section 179(1) provides that the section applies to “a complaint about the actual or potential withdrawal of a utility service” (emphasis added). Accordingly, reading the provisions harmoniously, a complaint under section 172 extends to a complaint about a proposed withdrawal of a utility service.
The orders the Tribunal may make if satisfied that the respondent has caused, or would cause, substantial hardship by failing to provide, or withdrawing, a utility service include:
(a)directing the respondent not to withdraw the service,[3] with or without an ancillary direction;[4]
(b)directing the respondent to restore a withdrawn service within 24 hours,[5] with or without an ancillary direction.[6]
[3] The Utilities Act s 179(2)(a)
[4] The Utilities Act s 179(3)
[5] The Utilities Act s 179(2)(b)
[6] The Utilities Act s 179(3)
An ancillary direction which the Tribunal may make is that the service not be withdrawn during a stated period or unless the consumer fails to comply with a stated condition.[7]
[7] The Utilities Act s 179(3)
The Tribunal also has powers under Part 12 of the Utilities Act to make a declaration discharging a debt or part of a debt.
Characterisation of the applicant’s applications and Tribunal’s orders
It is necessary to determine whether the applicant’s most recent application to the Tribunal, made on 19 June 2024, is an application to set aside the Tribunal’s orders of 7 February 2024 revoking the directions to the Utility not to withdraw gas and electricity services at her original premises, or a new hardship application.
Where a final order is made in the absence of a party, the Tribunal may set it aside on application by a party or on its own initiative, if it is in the interests of justice to do so.[8] In considering whether to set such an order aside, the Tribunal must take into account the reason why the party was absent from a hearing, whether it might have made a material difference to the outcome if the party had attended and anything else the Tribunal considers relevant.[9]
[8] ACT Civil and Administrative Tribunal Procedures Rules 2020 rule 70(1)-(3)
[9] ACT Civil and Administrative Tribunal Procedures Rules 2020 rule 70(7)
The applications made by the applicant to the Tribunal on 1 March 2024 and 19 June 2024 are not, in our view, properly characterised as applications to set aside the Tribunal’s orders of 7 February 2024 revoking the directions to the Utility not to withdraw gas and electricity services at the original premises. The applicant informed the Tribunal that she had moved in late December to new premises in a different suburb. She had no interest by March 2024 in maintaining services at her former home.
The applications the applicant made to the Tribunal on 1 March 2024 and 19 June 2024 appear on their face to be new applications under section 172 of the Utilities Act in relation to an anticipated withdrawal of a service from a consumer which is likely to cause substantial hardship. They are, in our view, properly characterised as new applications under section 172 of the Utilities Act for orders under section 179 of the Utilities Act, giving a utility a direction not to withdraw the utility service, and possibly for a declaration under section 180 of the Utilities Act, discharging part or all of a debt.
Determination of hardship application
In considering the applicant’s most recent hardship application, made on 19 June 2024, the Tribunal needs to be satisfied that she is a person who may apply to the Tribunal for an order, under section 172 of the Utilities Act. That is, the Tribunal needs to be satisfied that the Utility is proposing to withdraw a utility service from her and that this is likely to cause substantial hardship to her.
The Utility made plain at the hearing that it is not proposing to withdraw a utility service from the applicant because she has been placed within its Enduring Support Scheme. It is prepared to enter into a payment plan with her. In these circumstances, the Tribunal does not have power to make any orders under Part 12 of the Act.
For these reasons, the Tribunal dismissed the applicant’s application as per the order dated 4 July 2024.
Non-publication orders
After the hearing, the Tribunal decided to make orders under section 39 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act), before publishing this decision, to protect the applicant’s privacy.
Section 39 of the ACAT Act confers power on the Tribunal to make orders, on its own initiative, prohibiting the publication of evidence given at the hearing and of matters contained in documents filed with the tribunal or received in evidence by the tribunal for the hearing. Before making the order, the Tribunal must be satisfied that the right to a public hearing is outweighed by competing interests.[10] The right to a public hearing is outweighed by competing interests if the Tribunal is satisfied that the application, or part of the application, should be kept private because the interest of the private lives of the parties require the privacy.[11]
[10] ACAT Act s 39(1)
[11] ACAT Act s 39(5)(b)
We are satisfied that the private life of the applicant requires privacy, and that the right to a public hearing is outweighed by the competing interest in maintaining her privacy.
We take into account, in making the section 39 order, that section 184(1)(a) of the Utilities Act provides that the Tribunal must preserve the confidentiality of information disclosed to, or obtained by, the Tribunal in the exercise of its functions under Part 12, including personal information. ‘Personal information’ is defined in the Dictionary to the Utilities Act by reference to section 6 of the Privacy Act 1988 (Cth). ‘Personal information’ is defined in section 6 of the Privacy Act 1988 (Cth) to mean:
information or an opinion about an identified individual, or an individual who is reasonably identifiable:
(a) whether the information or opinion is true or not; and(b) whether the information or opinion is recorded in a material form or not.
The information the applicant provided to the Tribunal about her personal and financial circumstances is highly sensitive. It is ‘personal information’ because it is information about her (an identified individual). The applicant and her support person and baby were the only persons present at the hearing other than the Tribunal members. Even though we did not make an order that the hearing was a closed hearing, we consider that the information provided was confidential.
Even if we are wrong about this, we would still be satisfied that the right to a public hearing is outweighed by the interests in the privacy of the applicant’s private life. This will often be the case in respect of a hardship application, where an applicant generally provides the Tribunal with sensitive information about the applicant’s financial circumstances and other circumstances of hardship.
We also consider that the Tribunal has an implied incidental power to make orders that the applicant be referred to by a pseudonym and that there be no access to the file or to any records of proceeding.[12] We are satisfied, for the reasons given above, that it is in the interests of justice to make such orders.
[12] See, for example, Commissioner of Police (NSW) v Deputy State Coroner (NSW) [2021] NSWSC 398 at [78]; Secretary of the Department of Communities and Justice v X [2019] FamCA 521 at [62]
For these reasons, we have made the following orders in addition to the order we made at the hearing dismissing the applicant’s application:
(a)the applicant is to be referred to as ‘Applicant 4102023’;
(b)there is to be no publication by either party or any other person of the matters contained in the documents filed with the Tribunal or received by the Tribunal for the hearing; and
(c)there is to be no public access to the file or to any audio or written records of proceedings.
………………………………..
Presidential Member J Lucy
For and on behalf of the Tribunal
| Date of hearing: | 4 July 2024 | |
| Applicant: | In person | |
| Respondent: | Respondent staff in Staying Connected section | |
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