Eighani v Icon Retail Investments Limited (ABN 23 074 371 207) and AGL Act Retail Investments Pty Ltd (ABN 53 093 631 586) Trading as ActewAGL Retail (ABN 46 221 314 841) (Energy and Water)
[2020] ACAT 39
•4 June 2020
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
EIGHANI v ICON RETAIL INVESTMENTS LIMITED (ABN 23 074 371 207) AND AGL ACT RETAIL INVESTMENTS PTY LTD (ABN 53 093 631 586) TRADING AS ACTEWAGL RETAIL (ABN 46 221 314 841) (Energy and Water) [2020] ACAT 39
EW 0448/2019
Catchwords: ENERGY AND WATER – debt owed by energy customer to energy retailer – default listing made – default listing notice included inaccurate information about critical matters – default listing invalid and removed
Legislation cited: Privacy Act1988 (Cth) ss 6Q, 21D
National Energy Retail Law (ACT) 2012
National Consumer Credit Protection Act2009 (Cth) s 5
Utilities Act 2000 s 51
Subordinate
Legislation cited: National Energy Retail Law (ACT) Regulations 2012
Privacy (Credit Reporting) Code 2014 s 9
Cases cited:Highrise Concrete Contractors (Aust) Pty Ltd v Commissioner For ACT Revenue [2014] ACAT 31
London and North Eastern Railway Company v Berriman (1946) AC 278
Secretary, Department of Social Security and Doravelu (Decision No 7952, 13 May 1992, unreported)
Secretary, Dept of Social Security and Marie Carruthers [1993] AATA 330
List of
Texts/Papers cited: Australian Privacy Law And Practice (ALRC Report 108)
Tribunal: Senior Member L Beacroft
Date of Orders: 4 June 2020
Date of Reasons for Decision: 4 June 2020
AUSTRALIAN CAPITAL TERRITORY
CIVIL & ADMINISTRATIVE TRIBUNAL EW 0448/2019
BETWEEN:
JANYA EIGHANI
Applicant
AND:
ICON RETAIL INVESTMENTS LIMITED (ABN 23 074 371 207) AND AGL ACT RETAIL INVESTMENTS PTY LTD (ABN 53 093 631 586) TRADING AS ACTEWAGL RETAIL (ABN 46 221 314 841)
Respondent
TRIBUNAL: Senior Member L Beacroft
DATE:4 June 2020
ORDER
The Tribunal orders that:
By 5pm on 2 July 2020, the respondent remove the default from the credit file of Janya Eighani and advise her by email or letter that this has been done.
By 5pm on 2 July 2020, Janya Eighani pay the respondent the sum of $783.17 being full payment of a debt owed by her arising from her account for the use of electricity at premises in Lyneham ACT in a period ending 1 November 2016.
………………………………..
Senior Member L Beacroft
REASONS FOR DECISION
Summary
The ACT Civil and Administrative Tribunal (the Tribunal) performs the role of Energy Ombudsman for the ACT under the National Energy Retail Law (ACT) 2012 and the National Energy Retail Law (ACT) Regulations 2012. The Tribunal can investigate and determine complaints made by customers and consumers against energy and water utilities licensed in the ACT. This decision concerns a complaint made by an energy customer against an energy retailer, about a default listing placed on the customer’s credit file by the energy retailer due to unpaid overdue electricity charges. The Tribunal makes the orders set out above. Its reasons are set out below. The Tribunal finds that the consumer owes money to the energy retailer. In regard to the default listing, the energy retailer’s debt collection agent issued a purported notice required under the Privacy Act 1988 (Cth) and the Privacy (Credit Reporting) Code 2014 which contained inaccuracies about important matters, and is therefore invalid. For this reason, the default listing needs to be removed.
Background and timeline
On 19 November 2014 Ms Janya Eighani (the applicant) submitted an online request to open an account.[1] The application stated that her date of birth (DOB) was 5 April 1990, which is incorrect. In a later call to the respondent the applicant stated her DOB was 6 February 1990,[2] which is also incorrect. The applicant confirmed in her oral evidence that her DOB is neither of these.[3] The application named her emergency contact, also referred to by the respondent as the other authorised contact for the account, as “Sam”, and his mobile number as well as the applicant’s number were provided. The applicant then entered into a contract with Icon Retail Investments Limited (ABN 23 074 371 207) and AGL ACT Retail Investments Pty Ltd (ABN 53 093 631 586) Trading as ActewAGL Retail (ABN 46 221 314 841) (the respondent) to be supplied with power (electricity).[4]
[1] Respondent’s submission attachment A E177
[2] Respondent’s submission attachment E-E135 voice recording to arrange a payment plan dated 19 January 2016
[3] Transcript of proceedings 9 December 2019 page 25
[4] “Standard Retail Contract for Customers in the ACT and NSW”, Respondent’s attachment B, B1-13
Key contract terms relevant here are as follows:
Term of the Contract
Clause 4.2 (a) (v): the contract ends in a variety of circumstances including when a “different customer starts to buy energy for the premises – on the date that [a different] customer’s contract starts;
Clause 4.2 (c): rights and obligations accrued before the end of this contract continue despite the end of the contract, including any obligations to pay amounts to [the respondent];
Vacating Premises
Clause 4.3 (a): If you are vacating your premises, you must provide your forwarding address to [the respondent] for your final bill;
Clause 4.3 (c): You will continue to be responsible for charges for the premises until your contract ends;
Customers’ General Obligations
Clause 6.2 (a): You must tell [the respondent] promptly if information you have provided to [the respondent] changes, including if your billing address changes;
Billing
Clause 9.1(a): [The respondent] will send a bill to you as soon as possible after the end of each billing cycle, to you at the address nominated by you;
Complaints and Dispute Resolution
Clause 19.1: If you have a complaint relating to the sale of energy by [the respondent] to you…you may lodge a complaint with [the respondent] in accordance with [the respondent’s] standard complaints and dispute resolution procedures;
Late Payment Fees
Clause 10.4 (a): The respondent may charge a late payment fee;
The Respondent’s Obligations
Clause 23.1 (b): Some obligations placed on [the respondent] under this contract may be carried out by another person… If the obligation is not complied with, [the respondent is] still liable to you for the failure to comply with this contract.
From 24 July 2014 the applicant resided at an address in Lyneham, ACT (the property). The applicant moved out of the property on 18 December 2015, as evidenced by rental records provided by a real estate agent.[5]
[5] Applicant’s submission dated 4 November 2019 attachment D, D1-D4
On 19 January 2016 the respondent’s records show that the applicant called to arrange a payment plan. In the recording submitted by the respondent, Ms Eighani agreed to a $100 per fortnight payment plan to commence on Friday 22 January 2016.[6] The applicant stated in her oral evidence that she cannot recall making this call, but “if I did make that phone call, it was perhaps in relation to…the period that I was at the premises.”[7] The respondent’s records show this payment arrangement was put in place on 19 January 2016, i.e. on the day she called. The arrangement was then “broken”, meaning terminated, on 11 February 2016 when the agreed payments were not made.[8] This resulted in the respondent pursuing the debt.
[6] Respondent’s submission attachment E E135 voice recording to arrange a payment plan dated 19 January 2016
[7] Transcript of proceedings 9 December 2019 page 10
[8] Respondent’s submissions attachment G E130
On 1 November 2016 the applicant’s account was closed by the respondent due to a new tenant, a different customer, opening an electricity account for the property.
A final electricity bill, titled “Final Electricity”, was issued to the applicant on 8 November 2016 and was sent to the property. The bill was for the amount $1,483.70, with a due date for payment of 28 November 2016.[9] The amount owing was for electricity used in the billing period 29 July to 1 November 2016. It was also for accumulated unpaid electricity charges set out in bills issued to the applicant at the property for charges dating back to early 2015 – the respondent has issued to the applicant numerous prior bills, numerous “Overdue Notices” and numerous “Disconnection Warning Notices” since early 2015.[10]
[9] Respondent’s submissions attachment D E149-150
[10] Respondent’s submissions attachment F E133 and attachment G E130
The applicant rang the respondent on 18 November 2016, but the account was already closed. The applicant stated in her oral evidence that she recalls making the call, but that it could not have been on that date given she was about to get married.[11] During that call the recording shows that she stated:
I just need you to disconnect my gas and electricity as I have moved out of my last apartment.[12]
[11] Transcript of proceedings 9 December 2019 page 11
[12] Respondent’s submissions attachment C E161
It shows that she did not mention that she had vacated the premises in late 2015 and that she did not provide a forwarding address during that call.[13]
[13] Respondent’s submissions attachment C E161
The applicant contended that during this call she was transferred to the billing section and that section advised her that there were no outstanding charges for her to pay.[14] However, the recording shows that the applicant is told that a final bill will be sent to her and the billing centre will advise her how much the final bill will be, but the recording ends before the transfer to the billing centre is complete.[15] The respondent contends that either she hung up or was disconnected, since there are no records of her having a conversation with the billing section during that call.
[14] Transcript of proceedings 9 December 2019 page 9
[15] Respondent’s submissions attachment C E161
The respondent engaged a debt collection agency in mid-2017, Impact Financial Services (Aust) Pty Ltd (IFS), which followed-up with the applicant by phone and by email. In a phone call from the applicant to IFS on 1 September 2017, the applicant told IFS that she did not want them to call her but to use her email.[16] In September and October 2017 IFS emailed the applicant a copy of the final bill, and also information to access all billing information.[17] On 6 December 2017 the applicant emailed IFS and requested that all future correspondence be sent to her work email, and she provided her updated email address.[18]
[16] Respondent’s submissions attachment H E126
[17] Respondent’s submissions attachment H E123-124
[18] Respondent’s submissions attachment H E117
On 1 September 2017, the applicant advised IFS by phone that the debt was incorrect because she had left the property. IFS, on behalf of the respondent in an email dated 27 November 2017, requested that the applicant provide a copy of the lease to prove she had vacated the property. The applicant’s response was in effect that the onus was on the respondent to establish their case, so she did not supply the lease at that time. In her email to IFS dated 5 December 2017, she proposed that the respondent seek the information from the real estate agent that managed the property when she leased it and gave contacts for that purpose.[19] However, it emerged in the Tribunal proceedings that this agent was not the correct real estate agent for the property.[20] The applicant stated in her email dated 6 December 2017 that it is the respondent’s “duty to gather their evidence… [and] they can contact the agent and get information about the date I vacated the premises”.[21] On 2 January 2018, IFS advised the applicant by email that she needed to provide the lease, and it also advised her to pay the bill within seven days or debt collection would continue, which may include that the “debt be listed as a payment default with credit reporting agencies.”[22] IFS emailed the applicant on 1 February 2018 advising the same.[23]
[19] Respondent’s submissions attachment H E118
[20] Transcript of proceedings 9 December 2019 pages 27-28
[21] Respondent’s submissions attachment H E116
[22] Respondent’s submissions attachment H E114
[23] Respondent’s submissions attachment H E112
In communications with the respondent in May 2019 and also during the proceedings before the Tribunal the applicant contended that she had obtained a copy of the lease and arranged for it to be faxed to IFS on 9 January 2018. However, IFS records do not show receipt of a lease from the applicant, and IFS records do not show that the applicant ever advised them that she had supplied the lease/rental ledger to them. Even after IFS made the further request for the lease in their email to her dated 1 February 2018,[24] the applicant did not confirm with them that she had supplied it. The respondent contended that they only received a copy of the lease/rental ledger on 6 May 2019, which is after the credit default was listed.
[24] Respondent’s submissions attachment H E112
An email purporting to be a ‘section 6Q notice’ was sent by IFS to the applicant on 14 March 2018. This was 471 days after the final bill was issued. This email[25] states:
Dear Janya,
We are writing to you about your $1,483.70 unpaid bill with ActewAGL Retail – electricity which could soon result in legal action.
Impact Financial Services have attempted to contact you a number of times about the bill. But because you have not paid it there could be legal proceedings against you.
Payment of the unpaid bill must be made within 7 days. If you have not paid by then, or made arrangements for payment legal action may be started against you.
Note that legal proceedings can be expensive. If the proceedings are successful, the Court may order that you pay the legal costs of ActewAGL Retail – Electricity, as well as the outstanding bill. It can be a very difficult experience – particularly if you’re a low income earner.
Most people avoid legal action by sorting out the bill straight away and you can too.
Please get in contact with Impact ASAP and make sure you quote 1706769679 in all of your correspondence with them.
[25] Respondent’s submissions email dated 14 March 2018 attachment K
An email purporting to be a ‘section 21D notice’ was sent by IFS to the applicant on 31 August 2018. This was 171 days after the latter purported section 6Q notice was issued.
This email[26] that purports to be a section 21D notice states:
[26] Respondent’s submissions email dated 31 August 2018 attachment L
As we have not been able to contact you (or have lost contact with you) since this debt of $1,483.70 was referred to us for collection by ActewAGL Retail – Electricity, we write to write (sic) for a final time to offer our help for the next 7 days.
With this in mind, help is available by way of range of payment arrangement options that we can tailor to suit your current financial position and capacity to pay.
From as little as $20.00 per week we may be able to help you avoid further collection action and improve your chance of getting finance in the future by either stopping this debt being listed as a payment default* with credit reporting agencies or, if it has already been listed, working with you to get it updated** as paid in full. Remember, it could be a bit embarrassing if your credit application for a new phone, car or furniture is declined because of a Payment Default so please consider our offer of help an contact us now on 1300 799 179 or email us at [email protected]
Regards,
Operations – David
What is a Payment Default?
A payment default is an account of $150 or more that is 60 days or more overdue. For example, if you have a telephone bill of over $150, And it was due, more than 60 days ago, it could be listed on your credit file as a payment default.
Potential credit providers may look unfavourably on applicants with a history of overdue accounts, so it’s a good idea to avoid defaults getting onto your credit file as they may hinder your ability to finance things like cars, mobile phones, furniture etc.
Payment defaults can only be included on your credit file if the credit provider has tried to recover some or all of the overdue amount. This means that they have asked you, either in person (including over the phone) or in writing to your last known (sic) address, to pay the outstanding amount.
If an overdue account is listed on your credit file, the credit provider is required by law to update the listing, as soon as practical, once you’ve paid the overdue amount.
A payment default stays on your credit file for five years, even when you have paid the overdue amount. The fact that an account has become overdue and then been paid becomes part of your credit history.
Pursuant to Section 21D(3)(d)(l) of the Credit Reporting Act please be aware that this statement satisfies the requirement that the credit provider has given the individual a notice in writing that the provider intends to disclose the information to a credit reporting body if the debt is not paid or resolved …
On 26 September 2018, a default credit listing was placed on the applicant’s credit file for a debt of $1,483.70 owed to the respondent for electricity. The default was listed 26 days after the purported section 21D notice was issued.
On or about 6 May 2019, the respondent received from the applicant details which outline the date she vacated the property.
On 7 May 2019, as a ‘goodwill’ gesture, the respondent reduced the amount of the default to be in line with the date the applicant moved out of the property.[27] The default listing was reduced to $783.17 bringing it in line with the date when the applicant moved out of the property.
History of proceedings
[27] Respondent’s submissions attachment N E67-E65
The applicant filed a complaint with the Tribunal on 12 June 2019. The Tribunal completed its investigation of the complaint on 2 August 2019[28] and then provided its report to the parties. A directions hearing was held on 18 October 2019 and a hearing was held on 9 December 2019. Both parties took part in the hearings either in person or by phone.
[28] Hearing Folder–C25-C30 ACAT investigation report dated 2 August 2019
During the hearing the applicant gave oral evidence to support her contentions. She explained that due to the credit default placed by the respondent against her name, she has suffered:
substantial disadvantage, in the sense that my venture couldn’t go ahead, I have incurred costs and time to bring these proceedings … [she has been] unable to obtain any credit.[29]
[29] Transcript of proceedings 9 December 2019 page 8
She summed up her claim as being one in law: “the default was placed without proper procedure being followed, and the fact that I was disputing the invoice.”[30]
[30] Transcript of proceedings 9 December 2019 page 17
She claimed that she was still communicating with the debt collection agency and that the dispute remained unresolved when they placed the default which should have prevented it being placed. She claimed that “the moment the customer is disputing a debt, all collection activities need to be suspended until that dispute is resolved.”[31] She also claimed that the notices did not comply with requirements,[32] i.e. the purported section 6Q notice[33] and the purported section 21D notice.[34]
[31] Transcript of proceedings 9 December 2019 page 7
[32] Transcript of proceedings 9 December 2019 pages 35, 36-37, 39-40
[33] Respondent’s submissions, emailed Notice dated 14 March 2018 attachment K
[34] Respondent’s submissions emailed Notice dated 31 August 2018 attachment L
The respondent claimed the notices were valid. The respondent presented evidence that they had responded to any queries raised by the applicant through the debt collection agency, and that the applicant had failed to respond at all from February 2018 so the debt collection agency proceeded though the steps to place the credit default.[35] At the hearing the respondent clarified that the sum sought by the respondent is $783.17, which is made up of the amount owing in the final bill, being $1,483.70,[36] less an amount of $700.53 applied on 7 May 2019 and described as a “goodwill payment.”[37]
[35] Transcript of proceedings 9 December 2019 pages 35-42
[36] Respondent’s submissions attachment D E150–E 149
[37] Transcript of proceedings 9 December 2019 page 44; respondent’s submissions, attachment N, E67 to E65
At the end of hearing the Tribunal directed that “the parties are at liberty to file and serve final submissions, particularly regarding section 88(3) of the National Credit Code by COB Friday 7 February 2020”. Both parties made further and final submissions, being submissions from the respondent dated 29 January 2020 and the applicant dated 31 January 2020. The key legal issues addressed in those submissions were whether the purported Notices complied with requirements under the Privacy Act1988 (Cth) and the Privacy (Credit Reporting) Code 2014, and also whether the National Consumer Credit Protection Act2009 (Cth) applies in this matter and if so has the respondent complied with its requirements.
Summary of applicant’s claims
The credit default was listed for unpaid overdue electricity charges of $1,483 and the applicant made various claims about why this default should be removed.
The applicant says that she vacated the property in December 2015, which at the hearing was not contested. She stated that around the time she moved out, she notified the respondent of her vacating the property and also of her new address, and was told that no bills were outstanding.[38] She says she did not get the final bill at the time, as it was sent to the property she had vacated.[39] She first became aware of the alleged overdue bill when she was contacted by the respondent’s debt collection agent, IFS.[40] She claims that she was engaging with the respondent through its agent, IFS, as required and regarded the matter as an unresolved “live” dispute.[41] She claims that she provided a copy of the lease as requested by the respondent, faxing it on 9 January 2018, which is before the default was listed.[42]
[38] Applicant’s complaint 12 June 2019 [A5]
[39] Applicant’s complaint 12 June 2019 [A6]
[40] Applicant’s complaint 12 June 2019 [A6]
[41] Transcript of proceedings 9 December 2019, page 33
[42] Applicant’s submissions 4 November 2019, attachment D15-D16; Transcript of proceedings 9 December 2019 page 8
In May 2019, she became aware of a default placed on her credit file. She stated that when she followed-up there were inaccuracies in her file relating to her personal info for e.g. her phone and DOB: at one stage she advised IFS that “I think you’ve got the wrong person”.[43] She claims the respondent should not have listed the default because the bill was being disputed by her. Also, she contends that the respondent did not comply with the Privacy Act1988 (Cth) and the related Privacy (Credit Reporting) Code 2014, or comply with the National Consumer Credit Protection Act 200 and that the respondent is required to comply with the latter.
[43] Transcript of proceedings 9 December 2019 page 33
The applicant seeks orders that within 14 days the default be removed from her credit file by the respondent, and that a letter be provided to her from the respondent confirming that this has been done.
Summary of respondent’s claims
The respondent does not agree to the orders sought by the applicant. The respondent contended that the default on her credit file was not listed in error. The respondent advised that the applicant could have avoided the default being placed if she had:
Closed the account in December 2015 when she vacated and provided a forwarding address [and] actively engaged with IFS and provided the lease agreement prior to the default being listed.[44]
[44] Respondent’s submissions attachment B B138
The respondent claimed that the first contact made by the applicant about her moving from the property was on 18 November 2016, and that there is no evidence in their records that she contacted them about the time she moved out (i.e. late 2015). The respondent relied on terms of the contract that require the applicant to notify the respondent of updated contact details and if she wants the respondent to close the account due to vacating the property. The respondent relied on its records to show that the applicant did not notify the respondent of her vacating the property in late 2015 until December 2016, and she did not provide a forwarding address or contact details until sometime after that. The respondent relied on the terms of the contract and denied that it had a responsibility to seek these from the applicant when she called in late 2016.[45]
[45] Transcript of proceedings 9 December 2019 pages 18-19
Until the applicant contacted them in late 2016, the respondent relied on terms of the contract to contend that she was liable for any charges under the contract. Similarly, it contended that the contract allowed the respondent to send all bills including the final bill and any related default notices to the property (until she updated her contact details), since this was her last known address.[46]
[46] Respondent’s submissions E 184–E185; Transcript of proceedings 9 December 2019 page 18 - 19
After trying to contact her from July 2017, IFS contacted her on 1 September 2017 and invited her to submit a dispute letter. Ms Eighani advised IFS of her email for contact.[47] There followed a series of communications about the applicant providing a copy of the lease to prove she vacated the property when she claimed. The respondent provided its records to show that the lease was not received by them until May 2019, after the default was listed. It had evidence from the real estate agent that the respondent contended showed that the applicant could not have obtained the lease records earlier, or by fax, as the applicant claimed.[48]
[47] Respondent’s submissions attachment H-E126
[48] Transcript of proceedings 9 December 2019 pages 26-27. Respondent’s submissions attachments T-E7 to E6. Respondent’s final submissions 29 January 2020 at [22]-[27]
IFS issued the relevant notices, and then the respondent proceeded to place a default notice on the applicant’s credit file on 6 September 2018.[49] The respondent contended that the applicant’s claim that she was engaging with the respondent through its agent, IFS, as required was not supported by the records, and that she failed to respond to requests from IFS from early February 2018 including the two purported notices, and only responded in September 2018 when she emailed IFS to complain about the default listing.
[49] Respondent’s submissions at [24-31]
It is not contested by the respondent that it provides ‘credit’ in the form of ‘deferred payment’ as described in the Privacy Act1988 (the Act) and therefore that Act applies to it, and it can report overdue payments to a credit reporting agency provided it meets the requirements under that Act.[50]
[50] Respondent’s final submissions at [12-13]
The respondent stated that it met these requirements, and in particular that it sent the required notices under section 6Q and 21D after the applicant failed to pay her outstanding electricity account.[51]
[51] Respondent’s submissions at [24]; Respondent’s final submissions at [13]
The respondent contended that it was not subject to the NationalConsumer Credit Protection Act 2009.[52]
Issues
[52] Respondent’s final submissions at [14]
Should the default on the complainant’s credit file, placed by the respondent due to alleged non-payment of the bill, be withdrawn due to non-compliance with various requirements? Specifically:
(a)Has the respondent complied with the Privacy Act1988 (Cth) and the Privacy (Credit Reporting) Code 2014?
(b)Does the National Consumer Credit Protection Act2009 (Cth) apply to the applicant, and if so has the respondent complied with its requirements?
(c)Are there any other grounds for requiring the respondent to withdraw the default?
Findings
Firstly, the Tribunal makes the observation that the applicant had poor or inaccurate recollections of many facts that were otherwise well evidenced by documents and recordings. The applicant stated she had not been indisposed in any way during the relevant time when asked during the hearing.[53] Some inaccuracies were repeated in her final submissions, following the hearing where these were highlighted to her. For this reason, the Tribunal does not rely on her evidence unless it is well corroborated.
[53] Transcript of proceedings 9 December 2019 pages 42-43
For example, she said that she did not recall submitting details that she provided at the time she opened the account for this property on 18 November 2014, which included a person called “Sam” as her “emergency contact.”[54] Indeed, she stated that she “didn’t know anyone called Sam”, but the respondent’s evidence and records satisfied the Tribunal that “Sam” had called and made a payment against the account of $100 on 26 January 2016.[55] She confirmed at the hearing her correct DOB,[56] yet the online application to open the account records her date of birth as another date[57] and in a call to the respondent she states it as yet another date.[58] She stated that she could not recall ever making a call to arrange a payment plan on 19 January 2016, but a recording of her doing so was submitted by the respondent[59] and the applicant agreed that “it sounds like my voice.”[60] She disputed making the call to disconnect the electricity at the property on 18 November 2016, despite the recording submitted by the respondent[61] for that date – she stated that this could not have occurred because she was married the day after and “there was no time to make a phone call to disconnect the electricity.”[62] She referred the debt collection agency in her email dated 5 December 2017 to the wrong property agent.[63]
[54] Transcript of proceedings 9 December 2019 pages 9-12; Respondent’s submissions attachment A-E177 details recorded when account opened 18 November 2014
[55] Transcript of proceedings 9 December 2019 pages 13-14. Respondent’s submissions attachment D- E153 Bill dated 10 February 2016
[56] Transcript of proceedings 9 December 2019 page 9
[57] Respondent’s submissions attachment A-E177 details recorded when account opened 18 November 2014
[58] Respondent’s submissions attachment E-E135 voice recording to arrange a payment plan dated 19 January 2016
[59] Respondent’s submissions paragraph 14 and respondent’s submission attachment E–E135 voice recording to arrange a payment plan dated 19 January 2016.
[60] Transcript of proceedings 9 December 2019 page 9. Respondent’s submissions attachment E-E135 voice recording to arrange payment plan dated 19 January 2016
[61] Respondent’s submissions paragraph 7. Respondent’s submissions attachment C–E161 voice recording applicant closing electricity account dated 18 November 2016
[62] Transcript of proceedings 9 December 2019 page 11. Respondent’s submissions attachment C-E161 voice recording to disconnect supply dated 18 November 2016
[63] Transcript of proceedings 9 December 2019 page 28. Respondent’s submission attachment H-E118 Debt Collector’s (IFS) records
The Tribunal observed that the applicant made some incorrect general statements. For example, she stated that IFS and the respondent “never responded to any of my emails providing any documents.”[64] But the IFS records show that she was sent the key document and information, being the final bill and information to access her billing history, during this time.[65] Also, she contended in submissions, her oral evidence and her final submission that she replied to emails and requests for information, and that she responded to all correspondence received from the respondent promptly and maintained her position and disputed the debt.[66] However, the evidence shows that she did not reply to many phone calls and some emails made by IFS, the respondent’s agent. The Tribunal finds that she did not reply to a key email sent to her by IFS dated 1 February 2018, two emails containing the purported notices sent on 14 March 2018 and 31 August 2018, or the call made on 13 June 2018 – these were the key communications sent by IFS before the default was placed on 26 September 2018.[67] The Tribunal is satisfied that the latter key communications were sent to the email that she had provided on 5 December 2017 to IFS (as well as being sent to another email she has used), and that the correct number for her work was used for the latter phone call.[68] The applicant only replied to this key chain of emails and calls once the default was listed and she was advised of this, in her email to IFS dated 27 September 2018. This was well canvassed with her at the hearing. Despite this evidence at the hearing, the applicant continued to claim in her final submission that she had replied to at least one of the emailed purported notices, which the Tribunal finds is further reason to find her uncorroborated evidence unreliable.[69]
[64] Transcript of proceedings 9 December 2019, page 8
[65] Respondent’s submissions attachment H E123-124
[66] Applicant’s final submissions, dated 31 January 2020 at [47]
[67] Respondent’s submissions attachment H E109-114. Respondent’s submissions attachments K–E87-86, L – E 84-83. Debt Collector’s Records. Transcript of proceedings 9 December 2019 pages 34-41
[68] Respondent’s submissions attachment H-E117-188 Debt Collector’s Records
[69] Applicants submissions in reply dated 31 January 2020, [28]. Transcript of proceedings 9 December 2019 pages 40-41
The Tribunal is not convinced by the applicant’s evidence that she emailed a rental ledger to IFS on 9 January 2018, based on all the evidence before the Tribunal. The applicant stated that she had obtained rental records from the real estate agent and then arranged to have the rental ledger faxed to IFS on 9 January 2018 – the latter had been requested by the respondent and the rental records were necessary to prove when she had vacated the property. The applicant submitted emails between her and her office service as her evidence – the emails say that an unidentified rental ledger was faxed, but the actual fax report, cover sheet for the fax and faxed material were not submitted.[70] The respondent contended that the latter was not faxed at that time, and provided material from the real estate agent as their evidence.[71] The Tribunal notes that the applicant did not ever email IFS to advise them she had provided the rental records despite the importance of this material; indeed when a further email was sent by IFS to her on 1 February 2018 again asking for the lease the applicant did not reply and advise that she had supplied the rental records.[72] The Tribunal is not satisfied that the rental ledger relevant to this matter was faxed on 9 January 2018 to IFS as the applicant claims, and in any case the Tribunal is satisfied that it was not received by IFS or the respondent at that time.
[70]Applicants correspondence D9-16 emails about faxing rental ledger dated 9 January 2018
[71] Respondent’s submissions attachments Q and R E26-16 evidence submitted by respondent about rental ledger
[72] Respondent’s submissions attachment H, E112
Finally, on the reliability of the applicant’s evidence, the Tribunal observes as follows. The applicant stated that she was told that she owed nothing for electricity charges when she called to close the account in November 2016. But this is not supported by the recording submitted by the respondent.[73] Further, the recording of January 2016 shows that she rang to set up a payment arrangement, so she did know at this time that she owed the respondent for electricity charges.[74] The Tribunal finds it surprising that the applicant would accept that she owed nothing for electricity charges at that time, given the billing history for the period when she was residing at the property shows a history of numerous late payments, late fees and even disconnection notices, with very few payments by her.[75] Her evidence on this point in the Tribunal’s view is not believable.
Has the respondent complied with the Privacy Act1988 (Cth) and the Privacy (Credit Reporting) Code 2014?
[73] Respondent’s submissions attachment C–E161–voice recording from 18 November 2016 applicant closing electricity account
[74] Respondent’s submissions [14] and Respondent’s submission attachment E– E135 voice recording to arrange a payment plan dated 19 January 2016.
[75] Respondent’s submissions attachment G- E130 records for billing of property
The Tribunal finds that some requirements of the Privacy Act 1988 (Cth) (Privacy Act) and the Privacy (Credit Reporting) Code 2014 (Privacy Code) have been complied with by the respondent.
There is no evidence that the applicant updated her contact information prior to the respondent sending the final electricity bill to the property. Therefore, under the terms of the contract and the Privacy Act and the Privacy Code it was appropriate for the respondent to send the final bill to the property.
Importantly, the purported section 6Q and 21D notices were correctly sent to the applicant at her last known address (an email address) which was provided by the applicant to IFS on 6 December 2017. Also importantly, the notices were sent and the default listed within the timeframes required under the Privacy Act and the Privacy Code: the purported section 6Q[76] notice was sent after the debt became overdue, the section 21D notice was sent more than 30 days after the purported 6Q notice was sent, and the default listing was placed after more than 14 days but not more than three months after the section 21D notice was sent.[77] The substance of the purported section 6Q notice meets the requirements of the Privacy Act and the Privacy Code, being a notice “informing the individual of the overdue payment and requesting that the individual pay the amount of the overdue payment.”[78]
[76] Section 6Q Privacy Act 1988 and section 9 of the Privacy (Credit Reporting Code) 2014
[77] Section 21D Privacy Act 1988 and section 9 of the Privacy (Credit Reporting Code) 2014
[78] Section 6Q Privacy Act 1988 and section 9 of the Privacy (Credit Reporting Code) 2014
However, the purported section 21D notice sent by IFS to the applicant on 31 August 2018 contained inaccuracies about material matters and is found by the Tribunal to be invalid. Notices that carry a penalty if not complied with, are to be construed strictly where penalties apply.[79] A penalty applied in this case – if the notice is not complied with, then a person’s credit file has a default placed on it that adversely impacts their access to future credit. In the case Highrise Concrete Contractors (Aust) Pty Ltd v Commissioner For ACT Revenue [2014] ACAT 31 which was confirmed on appeal, a notice was found to be invalid due to it being inaccurate about an important matter contained in it [51]:
Although the Notice … was addressed to the registered address of that company, the substance of the letter refers to another company which is part of the group and with a similar name but a different ABN … Given the primary importance of the Applicant knowing to which company the Notice referred, and the ambiguity that followed from this error in its content, the Tribunal finds that the … Notice issued to the Applicant … is invalid. As in the case of Secretary, Dept of Social Security and Marie Carruthers [1993] AATA 330, in finding the Notice to be invalid the Tribunal’s finding is consistent with the “long standing common law principle that statutes are to be construed strictly where penalties apply [citing Secretary, Dept of Social Security and Marie Carruthers [1993] AATA 330, paragraph 11].
[79] London and North Eastern Railway Company v Berriman (1946) AC 278 at 313; Secretary, Department of Social Security and Doravelu (Decision No 7952, 13 May 1992, unreported; Secretary, Dept of Social Security and Marie Carruthers [1993] AATA 330 at paragraph 11; Highrise Concrete Contractors (Aust) Pty Ltd v Commissioner For ACT Revenue [2014] ACAT 31 at paragraph 51
The purported section 21D notice[80] was inaccurate in two matters. It stated as follows:
Pursuant to Section 21D(3)(d)(l) of the Credit Reporting Act please be aware that this statement satisfies the requirement that the credit provider has given the individual a notice in writing that the provider intends to disclose the information to a credit reporting body if the debt is not paid or resolved.[81]
[80] Section 21D Privacy Act 1988 and section 9–Privacy (Credit Reporting) Code 2014
[81] Respondent’s submissions attachment L–E83-84 emailed Notice dated 31 August 2018
The notice refers to “Section 21D(3)(d)(l)” of the “Credit Reporting Act”, the latter being legislation which is not relevant here and as far as the Tribunal can determine does not exist in Australia. Further, there is no section 21D (3)(d)(l) of the Privacy Act or the Privacy Code, although there is a section 21D(3)(d)(i) of the Privacy Act. In wrongly referring to section 21D(3)(d)(l) of the Credit Reporting Act as the Act relied on to issue and establish the legal authority of the notice, the notice is erroneous in a critical matter. Adding to the confusion caused by this error in the notice, the respondent’s staff were similarly in error at times about the legal basis for the default being listed. For example, when the applicant followed up with the respondent in an email dated 16 April 2019 the respondent’s staff member repeated the error in the purported section 21D notice and stated as follows:
It is ACTEWAGL’s stance that the default was listed in compliance with requirements under the Credit Reporting Act.[82]
[82] Respondent’s submissions attachment M-E81
The Tribunal finds that the notice is invalid due to its inaccurate reference to the legislative basis for the notice. But there was another critical inaccuracy that further supports a finding that the notice is invalid. The notice states that the applicant will be offered help for the next seven days:
as we have not been able to contact you (or have lost contact with you) since this debt of $1,483.70 was referred to us for collection by ActewAGL Retail – Electricity, we write to write (sic) for a final time to offer our help for the next 7 days.[83]
[83] Respondent’s submissions, emailed notice dated 31 August 2018, attachment L
However, under the Privacy Act and the Privacy Code the applicant has 14 days from the date of the section 21D notice before a default can be listed on a credit file,[84] so the wording was misleading and inaccurate.
[84] Section 21D3(d)(ii) of the Privacy Act1988 and section 9 of the Privacy (Credit Reporting) Code 2014
The applicant is a lawyer, and the Tribunal’s view is that this made the accuracy of critical information in the notice especially important since a lawyer is likely to check this information and, if found to be wrong, wonder about the legitimacy of the notice and the debt. Even for a layperson, critical information in the section 21D notice needs to be accurate to enable the recipient to seek advice about the legal basis of the notice and their options. In an age where cyber fraud is present and consumers are asked to be aware of scams, it is especially important that a section 21D notice requiring payment of monies be accurate about critical information. The section 21D notice in this case was not accurate in critical information and is therefore invalid. On this basis, the default from the applicant’s credit file should be removed.
Does the National Consumer Credit Protection Act2009 (Cth) apply to the respondent, and if so has the applicant complied with its requirements?
Given the Tribunal’s findings above, the Tribunal does not need to decide this issue. However, it makes the following findings given the issue was canvassed during the proceedings.
The Tribunal finds the respondent’s arguments persuasive that the National Consumer Credit Protection Act2009 (Cth) (NCCP) and related Codes do not apply to it and therefore are not applicable in this matter.
The respondent contended that the NCCP does not apply for the following reasons:
[The respondent] does not charge, nor is it licensed to charge, the applicant or any other customer for the provision of credit…[C]harging a set late fee or overdue fee is not a charge on credit but rather a fee or charge for not paying the amount of credit on time and is also not caught by the [NCCP]. Moreover, the contract under which the respondent sold electricity to the applicant…is a deemed standard retail contract required [by relevant energy laws i.e. the National Energy Retail Law and the National Energy Retail Rules]…[It] does not allow for the respondent, or any other retailer, to charge energy customers for the provision of credit …Section 51 of the Utilities Act 2000 provides for the protection of personal information [including Codes under the Privacy Act]…The respondent provides credit (deferred payment) as described in the Privacy Act. This allows the respondent to, among other things, participate in the credit reporting regime and gain access to credit reporting systems. It also allows the respondent to report overdue payments to a credit reporting agency…Being a credit provider for the purposes of the Privacy Act does not mean the respondent must comply with the [NCCP].[85]
[85] Respondent’s final submissions at [2-5]
The applicant submitted a contrary argument that at its strongest, in the Tribunal’s view, proposed that a late fee charged by the respondent is a “charge…made for providing the credit” (section 5(1) of the NCCP). However, the Tribunal prefers the respondent’s interpretation on this point and on the issue overall, as set out above. The Tribunal also notes that contracts which are subject to the NCCP are regulated by ASIC, whereas the contract between the respondent and the applicant is regulated by the Australian Energy Regulator.
The law in this area has attracted some criticism. The Australian Law Reform Commission has commented that:
some organisations that are recognised as credit providers for the purposes of the credit reporting provisions of the Privacy Act, are not required to comply with the Consumer Credit Code [the NCCP], which applies to ‘credit providers’ defined more narrowly... The [then] Banking and Financial Services Ombudsman…[has] submitted that access should not be allowed unless the credit that has been provided is regulated credit, as defined in the Consumer Credit Code (the NCCP). In response, utilities companies emphasised their need for credit reporting information.[86]
[86] Australian Law Reform Commission (2010), For Your Information: Australian Privacy Law And Practice (ALRC Report 108), [54.108, 54.115-116]
While there may be policy issues for governments to consider, currently the Tribunal finds that the law is that the respondent is not subject to the NCCP but is subject to the Privacy Act and the Privacy Code.
Are there any other grounds for requiring the respondent to withdraw the default?
The applicant contended that the default was wrongly listed due to errors in her date of birth and in the phone number associated with her by the respondent. However, it is clear to the Tribunal that the applicant herself is responsible for the wrong date of birth being referenced at times (until she corrected it). This error occurred due to the wrong date of birth being provided in the applicant’s original application to the respondent,[87] and she provided the incorrect date of birth in one of her phone calls to the respondent.[88] There was a phone number provided in her original application for “Sam”, and this number was used at times by the respondent to try to contact the applicant and have the debt settled. The Tribunal regards this as appropriate. Importantly, the Tribunal finds that it is clear there is no identity error in this case and that the default has been listed against the correct person who is liable for the debt. The applicant’s submissions in this regard are dismissed.
[87] Respondent’s submissions attachment A E177
[88] Respondent’s submissions attachment E E135 voice recording to arrange a payment plan dated 19 January 2016
The applicant contended that the default should not have been listed because the dispute was still current and unresolved. The Tribunal finds that the applicant stopped responding to the IFS emails from January 2018 until the default was listed in September 2018, and that she did not send the rental records as requested or at least this was not received by the respondent. The applicant cannot unilaterally assert that a dispute is such that a default cannot be listed. If this were to be the case then any consumer by simply asserting there is a dispute and doing nothing else can stop a default being listed, which would be an abuse of consumer protections. A consumer must demonstrate behaviour that is consistent with a dispute being current. The applicant in this case did not demonstrate that behaviour. She was uncooperative and non-responsive from February 2018 until after the default was listed, and the respondent was entitled to proceed to issue the notices and list the default.
The Tribunal makes the observation that the applicant appeared to be under the misapprehension that the respondent alone had responsibilities in regard to the debt. The applicant should have realised, especially given her legal qualifications and experience, that she also had responsibilities under the contract and given the billing history. The applicant’s submissions on this issue are dismissed.
………………………………..
Senior Member L Beacroft
HEARING DETAILS
FILE NUMBER: | EW 0448/2019 |
PARTIES, APPLICANT: | Janya Eighani |
PARTIES, RESPONDENT: | Icon Retail Investments Limited (ABN 23 074 371 207) and AGL ACT Retail Investments Pty Ltd (ABN 53 093 631 586) Trading as ActewAGL Retail (ABN 46 221 314 841) |
COUNSEL APPEARING, APPLICANT | N/A |
COUNSEL APPEARING, RESPONDENT | N/A |
SOLICITORS FOR APPLICANT | Lehman Walsh Lawyers |
SOLICITORS FOR RESPONDENT | Ian Male |
TRIBUNAL MEMBERS: | Senior Member L Beacroft |
DATES OF HEARING: | 9 December 2019 |
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