Icon Retail Investments Limited (ABN 23 074 371 207) and AGL Act Retail Investments Pty Ltd (ABN 53 093 631 586) v Eighani (Appeal)
[2021] ACAT 118
•6 December 2021
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
ICON RETAIL INVESTMENTS LIMITED (ABN 23 074 371 207) AND AGL ACT RETAIL INVESTMENTS PTY LTD (ABN 53 093 631 586) v EIGHANI (Appeal) [2021] ACAT 118
AA 19/2020
Catchwords: APPEAL – energy and water – disclosure of credit information – notice requirement – content of notice – effect of extraneous inaccurate or ambiguous content – exercise of discretion to remedy failure to give notice
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 82
Privacy Act 1988 (Cth) s 21D
Privacy Amendment (Enhancing Privacy Protection) Bill 2012 (Cth)
Utilities Act 2000 s 178
Cases cited:Allesh v Maunz [2000] HCA 40
B&T Constructions (ACT) Pty Ltd v Construction Occupations Registrar and the Owners – Units Plan 3324 [2013] ACTSC 219
Chakravarty & Commissioner ACT Revenue [2013] ACAT 1
Collector of Customs v AGFA-Gevaert Ltd [1996] HCA 36
Connelly v Allan [2011] ACTSC 170
Das v A&A Air-conditioning [2009] ACAT 52
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) [2020] ACAT 39
Excel Intelligent Pty Ltd v Thompson [2018] ACAT 4
Federow v Federow [2011] ACTCA 10
Fox v Percy [2003] HCA 22
Giusida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275
Highrise Concrete Contractors (Aust) Pty Ltd v Commissioner for ACT Revenue [2014] ACAT 31
House v The King (1936) 55 CLR 499
John Flynn Community Group Inc and Flynn Primary School Parents and Citizens Association Inc v ACT Heritage Council [2012] ACTSC 50
Litevale v Lismore City Council (1997) 96 LGERA 91Lukatela v Birch [2008] ACTSC 99
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
R v Lavender [2005] HCA 37
Sarbandi v Sharif [2017] ACAT 57
Secretary, Department of Social Security and Marie Carruthers [1993] AATA 330
SZOFE v Minister for Immigration and Citizenship [2010] FCAFC 79
Tammy Hamers-Coogan v Commissioner for Social Housing in the A.C.T [2011] ACAT 31
The Legal Practitioner v Council of the Law Society of the ACT [2011] ACTSC 207
Tribunal:President M-T Daniel
Presidential Member H Robinson
Date of Orders: 6 December 2021
Date of Reasons for Decision: 6 December 2021
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 19/2020
BETWEEN:
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)
Appellant
AND:
JANYA EIGHANI
Respondent
APPEAL TRIBUNAL: President M-T Daniel
Presidential Member H Robinson
DATE:6 December 2021
ORDER
The Tribunal orders that:
Order 1 of the Orders of 4 June 2020 in matter EW 0448/2019 is amended to include the words “do all things necessary to” after the word “respondent”.
The appeal is otherwise dismissed.
………………………………..
President M-T Daniel
For and on behalf of the Tribunal
REASONS FOR DECISION
This is an appeal against the decision of the Tribunal in 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) [2020] ACAT 39 (Original Decision). In that decision the Tribunal (Original Tribunal) determined that an email sent to the respondent on 31 August 2018 by a debt collection agency engaged by the appellant (the August email) did not comply with certain requirements under the Privacy Act 1988 (Cth) (Privacy Act) and was invalid. As a consequence the Original Tribunal ordered that the appellant remove a default from the credit file of the respondent.
The appellant argues that the Original Tribunal erred in law in concluding that the August email did not comply with the Privacy Act and, accordingly, that there was no proper basis to conclude that the notice was invalid.
Background
The factual findings of the Original Tribunal were not in dispute on appeal. They can be briefly summarised as follows.
The appellant is a utility provider supplying electricity to homes and businesses in the ACT.
On 24 July 2014 the respondent commenced residing at a premises in the ACT. On 19 November 2014 she submitted an online request to open an account with the appellant. Shortly thereafter she entered into a contract with the appellant to be supplied with electricity. She moved out of the premises on 18 December 2015. The account remained open until 1 November 2016 when the appellant closed the respondent’s account because it had opened another electricity account for the same property.
On 8 November 2016 a final electricity bill (final bill) was issued to the respondent in the sum of $1,483.70. It was due for payment on 28 November 2016. The respondent failed to pay the account.
On 19 January 2016 the respondent entered into a payment plan with the appellant to pay for the supplied electricity at the repayment rate of $100 a fortnight. However, she did not make payments in accordance with the plan and the plan was terminated on 11 February 2017.
In May 2017 the appellant engaged a debt collection company, Impact Financial Services (IFS), to commence debt recovery action in relation to the final bill. Thereafter, IFS sent a series of emails to the respondent seeking to recover the debt. The respondent raised a dispute in relation to the debt. The dispute process continued into 2018.
By way of emails dated 2 January 2018 and 1 February 2018, IFS advised the respondent to pay the outstanding debt within seven days, or debt collection may commence and that IFS may be “recommending to our client that the debt be listed as a payment default with credit reporting agencies”. It appears that the appellant then referred the matter to its lawyers.
On 14 March 2018 the appellant’s lawyers sent an email to the respondent (the March email). The March email had a subject line that included the words “Overdue account”, “ACTEWAGL”, the respondent’s account number and the amount outstanding. The March email clearly states that payment of the unpaid bill should be made within 14 days or legal action may be commenced.
On 31 August 2018 IFS sent the August email to the respondent. The email was from “Operations”. The subject line was substantively similar to that of the March email. In full, the email provides (with original formatting and errors retained):
Dear Janya
As we have not been able to contact you (or have lost contact with you) since this debt of $1483.7 was referred to us for collection by ActewAGL Retail - Electricity, we write to write 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 and 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 daysago, 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 lastknown 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)(I) 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.
PAYMENT OPTIONS
BPAY
Biller Code – 242271
Reference number –[redacted by Tribunal]
CREDIT CARD
Secure payment can be made by using the credit card payment facility located at
“ surcharge of 2.5% will apply on American Express credit card payment (s)
CHEQUE OR MONEY ORDER
Reference Number -1706769679
Impact Financial Services
PO Box Q1015
QVB NSW 1230This email is intended solely for the use of the addressee (s) and may contain information which is confidential or legally privileged. If you receive this email and you are not the addressee (or responsible for delivery of the email to the addressee) please disregard the contents of the email & notify the author immediately. Legal professional privilege, any privacy or other rights, are retained by the author and are not waived because you have received this message in error.
The appellant did not contact IFS. Subsequently, on 26 September 2018 Equifax placed a default credit listing on the appellant’s credit file for a debt of $1,483.70.
Section 21D of the Privacy Act prohibits the disclosure of credit information to a credit reporting agency unless the requirements of that section are met. This section provides:
21D Disclosure of credit information to a credit reporting body
Prohibition on disclosure
(1) A credit provider must not disclose credit information about an individual to a credit reporting body (whether or not the body’s credit reporting business is carried on in Australia).
Civil penalty: 2,000 penalty units.
Permitted disclosure
(2) Subsection (1) does not apply to the disclosure of credit information about the individual if:
(a)the credit provider:
(i)is a member of a recognised external dispute resolution scheme or is prescribed by the regulations; and
(ii)knows, or believes on reasonable grounds, that the individual is at least 18 years old; and
(b)the credit reporting body is:
(i)an agency; or
(ii)an organisation that has an Australian link; and
(c)the information meets the requirements of subsection (3).
Note:Section 21F limits the disclosure of credit information if there is a ban period for the information.
(3) Credit information about an individual meets the requirements of this subsection if:
(a)the information does not relate to an act, omission, matter or thing that occurred or existed before the individual turned 18; and
(b)if the information relates to consumer credit or commercial credit—the credit is or has been provided, or applied for, in Australia; and
(c)if the information is repayment history information about the individual:
(i)the credit provider is a licensee or is prescribed by the regulations; and
(ii)the consumer credit to which the information relates is consumer credit in relation to which the provider also discloses, or a credit provider has previously disclosed, consumer credit liability information about the individual to the credit reporting body; and
(iii)the provider complies with any requirements relating to the disclosure of the information that are prescribed by the regulations; and
(d)if the information is default information about the individual:
(i)the credit provider has given the individual a notice in writing stating that the provider intends to disclose the information to the credit reporting body; and
(ii)at least 14 days have passed since the giving of the notice.
(4) Paragraph (3)(a) does not apply to identification information about the individual.
(5) Despite paragraph (3)(a), consumer credit liability information about the individual may relate to consumer credit that was entered into on a day before the individual turned 18, so long as the consumer credit was not terminated, or did not otherwise cease to be in force, on a day before the individual turned 18.
Written note of disclosure
(6) If a credit provider discloses credit information under this section, the provider must make a written note of that disclosure.
Civil penalty: 500 penalty units.
Interaction with the Australian Privacy Principles
(7) If a credit provider is an APP entity, Australian Privacy Principles 6 and 8 do not apply to the disclosure by the provider of credit information to a credit reporting body.
The primary issue before the Original Tribunal was whether the August email satisfied the requirements of section 21D(3)(d) such that the appellant was entitled to disclose credit information to a credit report organisation.
The original decision
The Original Tribunal found that the “purported section 21D notice” (being the August email) contained “inaccuracies” about “critical matters”, in that:
(a)it referred to the wrong legislative basis, purporting to be a notice issued under “section 21D(3)(d)(l) of the Credit Reporting Act”, when the correct provision is section 21D(3)(2)(i) of the Privacy Act; and
(b)the notice states that the [respondent] will be offered “help for the next 7 days”, while section 21D(3)(d)(ii) requires that the notice be given at least 14 days before the disclosure i.e. that there must be 14 days between the notice and disclosure.
Citing these inaccuracies, the Original Tribunal concluded that:
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.[1]
[1] Original Decision at [52]
Accordingly, the Original Tribunal ordered that:
1. 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.
The Appeal hearing
The hearing of the appeal commenced on 20 November 2020. At the outset a Notice of Contention previously filed by the respondent was withdrawn.
During the course of the first day of the hearing, the Appeal Tribunal raised as an issue whether the August email could be considered to be a section 21D notice at all, irrespective of whether it contained inaccurate “critical information”. This was because on an initial reading of the August email by the Appeal Tribunal, it did not seem to contain the statement required by section 21D(3)(d)(i).[2]
[2] A related question also arose as to whether the August email had been given by the credit provider, as required by section 21D(3)(d)(i), or by a third party.
The proceedings were adjourned to 28 January 2021 to enable the parties to make full submissions on the question of whether the August email contained the necessary content.
Both parties filed written submissions, the appellant on 22 January 2021 and the respondent on 21 January 2021.
The hearing resumed on 28 January 2021.
After hearing from the parties, the Appeal Tribunal again reserved its decision.
The role of the Tribunal on appeal
Section 82 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) provides:
(1) An appeal tribunal may, as the tribunal considers appropriate, deal with an appeal—
(a)as a new application; or
(b)as a review of all or part of the original decision on the application by the tribunal.
This appeal proceeded as a ‘review’. The role of the tribunal when undertaking a review was discussed by President Neate in Excel Intelligent Pty Ltd v Thompson [2018] ACAT 4 at [47] to [55] as follows:
47. First, section 79(3) of the ACAT Act provides that a party to an original application may, by application, appeal the decision to the Tribunal “on a question of fact or law.” Although the distinction between a question of fact and a question of law is significant, a satisfactory test of universal application has not been formulated.[3]
[3] Collector of Customs v AGFA-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389, 394. See also John Flynn Community Group Inc and Flynn Primary School Parents and Citizens Association Inc v ACT Heritage Council [2012] ACTSC 50 at [15], [16] (Burns J)
48. As differently constituted Tribunals have observed in previous cases, an appellant does not have standing to appeal as of right and is required to identify question of fact or law. The appellant cannot merely request the re-exercise of a discretion.[4] The purpose of the appeal process is not to allow an applicant to try and have a matter reheard because they do not like the previous decision. If that were so there would be no point in the original hearing.[5]
[4] Chakravarty & Commissioner ACT Revenue [2013] ACAT 1 at [36]
[5] Das v A&A Air-conditioning [2009] ACAT 52 at [19]
49. The reasons for the present appeal are set out in the application for appeal and are quoted at [12]. It appears from the way they are worded, those reasons identify what are most accurately described as questions of fact.
50. Second, in Giusida Pty Limited v Commissioner for ACT Revenue[6](Giusida), Refshauge ACJ considered the principles on which the Tribunal on appeal should act. His Honour repeated his observations in an earlier judgement that an appeal under section 82(a) of the ACAT Act is what is usually called a “hearing de novo” and an appeal under section 82(b) is what is usually called a “rehearing”.[7] In the earlier judgment, his Honour also observed that the Tribunal had held that, on a review under section 82(b), the Appeal Tribunal may receive additional evidence.[8] Although there is no express power to that effect in the ACAT Act, Rule 21(c) of the ACT Civil and Administrative Tribunal Procedure Rules 2009 (No 2) does so provide.
[6] Giusida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275
[7] Giusida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275 at [36], [37], quoting The Legal Practitioner v Council of the Law Society of the ACT [2011] ACTSC 207; (2011) 257 FLR 118 at [13]-[14]
[8] The Legal Practitioner v Council of the Law Society of the ACT [2011] ACTSC 207; (2011) 257 FLR 118 at [61] citing Tammy Hamers-Coogan v Commissioner for Social Housing in the A.C.T [2011] ACAT 31 at [10]
51. In the subsequent case of B&T Constructions (ACT) Pty Ltd v Construction Occupations Registrar and the Owners – Units Plan 3324,[9] Burns J heard an appeal which was dealt with as a review of the original decision of the Tribunal. His Honour described the nature of the appeal based on the fact that all relevant evidence was received by the Tribunal, and no question of the credibility of the witnesses called in the Tribunal arose. The appeal before him largely concerned issues of statutory interpretation, and the parties approached the appeal as a rehearing rather than a hearing de novo.[10]
[9] B&T Constructions (ACT) Pty Ltd v Construction Occupations Registrar and the Owners – Units Plan 3324 [2013] ACTSC 219
[10] B&T Constructions (ACT) Pty Ltd v Construction Occupations Registrar and the Owners – Units Plan 3324 [2013] ACTSC 219 at [13]
52. Burns J noted that the nature of a rehearing is well known. He quoted the following passage from the judgment of the majority of the High Court in Fox v Percy:[11]
[11] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [22]-[23], (Gleeson CJ, Gummow and Kirby JJ); see also Federow v Federow [2011] ACTCA 10 at [7]-[9], Gray P, Penfold J, Nield AJ
The “rehearing” does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits. ... The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to “give the judgement which in its opinion ought to have been given in the first instance”. On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derived from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole. (Citations omitted)
53. Burns J cited and quoted from other judgments about the nature of a rehearing. The following propositions can be drawn from those judgments:
(a)An appeal court (or an appeal tribunal) must determine whether the decision appealed against is wrong because the court at first instance (or an original tribunal) fell into an error of law, made a finding of fact that is clearly wrong or exercised a discretion on a wrong principle or in a way that is clearly wrong.[12]
[12] Connelly v Allan [2011] ACTSC 170 at [12], Refshauge J
(b)Ordinarily, if there has been no further evidence admitted or no relevant change in law, a court in entertaining an appeal by way of rehearing (or an appeal tribunal) can exercise its appellate powers only if satisfied that there was an error on the part of the court below[13] (or an original tribunal).
[13] Lukatela v Birch [2008] ACTSC 99 at [22], Rares J citing Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194, 203 at [14], Gleeson CJ, Gaudron and Hayne JJ
(c)The appellate court (or an appeal tribunal) will give proper allowance to the advantage of the court of first instance (or an original tribunal) who saw and heard the witnesses, so that, ordinarily, facts found based on the assessment of witnesses will not lightly be overturned.[14]
[14] Connelly v Allan [2011] ACTSC 170 at [12], Refshauge J. See also Sarbandi v Sharif [2017] ACAT 57 at [67]-[71]
(d)The appellate court (or an appeal Tribunal) is obliged to conduct a real review of the trial and the reasons of the court of first instance (or an original tribunal).[15]
[15] Connelly v Allan [2011] ACTSC 170 at [13], Refshauge J
(e)In an appeal by way of rehearing, once error below has been found (after making proper allowance for the advantages of the trial judge or original tribunal), the appellate court (or appeal tribunal) can substitute its own decision based on the facts and the law as they now stand.[16]
[16] Allesh v Maunz [2000] HCA 40; (2000) 203 CLR 172, 180-1 at [23], 187 [44]; Lukatela v Birch [2008] ACTSC 99 at [18], [21], Rares J
54. In Giusida, Refshauge J appeared to draw no distinction between the two types of appeal when he observed, in relation to the role of an appeal Tribunal, that:
the very structure of the ACAT would suggest that what is required is a proper review of the decision at first instance before the cost to the parties of having to take the proceedings to this [Supreme] Court is required to be incurred.[17]
55. He continued:
... careful thought and a consideration of the purpose and meaning of an internal appeal strengthens my view that a wider and general power is intended and not one which restricts the original decisions from proper scrutiny.
Thus, while error needs to be shown before the ACAT on appeal will set aside the original decision on the application from which the appeal is taken, it is not required that the error be “manifest”, “obvious” or other than an error discernible by a proper assessment of the evidence and the law. ...
A final comment is necessary. The proceedings before the ACAT on appeal and before me refer at times to the common reference in appellate discourse as to what is “open” to a first instance decision-maker. It seems to me that this is a wide term that needs careful consideration. It also needs to be clear that, if there is an error of fact or law in a finding of the ACAT, then it is not open to it to make such a finding unless the error is not a material one.
The evidence that permits a decision maker to draw a conclusion must have a character of reliability and reasonable substance; it must not be mere evidence, that it is simply what is put before the tribunal.[18]
[17] Giusida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275 at [35]
[18] Giusida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275 at [37]-[40]
The Appeal Tribunal adopts the above approach.
The appellant’s arguments on appeal
The appellant characterised the Original Tribunal’s decision as: the Original Tribunal found that the August email did not meet the requirements of the Act because it contained additional matters, which it called “critical matters”, which in the notice were inaccurate. It says that in doing this, the Original Tribunal fell into error for several reasons.
First, the appellant submitted that what is actually required by section 21D, necessitates a consideration of the provision as a whole and the text actually used in the August email (citing Alcan (NT) Alumina Proprietary Limited v Commissioner of Territory Revenue [2009] HCA 41 at [47]; FCT v Consolidated Media Holdings Ltd [2012] HCA 55). An analysis of the text does not support the conclusions reached by the Original Tribunal about the ‘critical information’. The appellant’s counsel submitted that:
…it is important that the tribunal does consider how that section actually operates and what it actually does as a whole rather than just focusing on any particular provision in how it reads. We say that that is something that the tribunal below didn’t even engage with, how section 21D actually operated and what it actually required.[19]
[19] Transcript of proceedings 20 November 2020 page 19, lines 19 to 23
All that section 21D required, the appellant submitted, was a notice that the appellant intended to disclose information to a credit reporting body if the debt is not paid. The appellant argued that read plainly and fairly, the August email did this. Accordingly, it achieved the purpose underlying section 21D(3)(d)(i), no matter what additional information was in it, and one need look no further.
Second, the appellant submitted that the Original Tribunal fell into error in applying the principle that: “Notices that carry a penalty if not complied with are to be construed strictly where the penalties apply. A penalty applied in this case”.[20] The appellant says that this principle does not apply to the interpretation of a section 21D notice because:
(a)a section 21D notice does not require a recipient to do something to “comply”, and a failure by the recipient to respond to a notice is not a failure to comply with it;
(b)a section 21D notice does not carry or impose any penalty upon the recipient if the notice is not complied with. The penalty identified by the tribunal, being a default listed on the respondent’s credit file, does not arise from non-compliance with the notice, rather it arises from failure to pay the debt.
(c)the cases cited by the Original Tribunal are distinguishable from the present case and do not support the Original Tribunal’s approach. In Carruthers[21] the notice given to the recipient required the recipient provide certain information to a government department if certain events occurred and failure to comply with that notice attracted criminal liability, which is not the case here. Similarly in Highrise Concrete[22] the notice given to the recipient required, again by force of legislation, the recipient to provide certain specified information the failure to do so attracting the sanction. The other cases the appellant contends are distinguishable along similar lines.
(d)The principle cited by the Original Tribunal is that statutes are to be construed strictly when a penalty applies. That principle certainly applies to the interpretation of legislation. However, the Original Tribunal then concluded that ‘notices’ that carry a penalty should be construed strictly. This is, the appellant submits, not correct. Rather, if the principle applies, it applies not to the August email, but to the interpretation of section 21D. Further, it was submitted that Kirby J and Edelman J have made clear that the rule of strict interpretation of statute is a rule of last resort that should apply only where “ambiguity seems intractable”.[23] The Original Tribunal did not identify any ambiguity in the legislation alone or interpretable difficulty in considering section 21D(3) before applying the principle to the notice.
[20] Original Decision at [47]
[21] Secretary, Department of Social Security and Marie Carruthers [1993] AATA 330
[22] Highrise Concrete Contractors (Aust) Pty Ltd v Commissioner for ACT Revenue [2014] ACAT 31
[23] R v Lavender [2005] HCA 37; (2005) 222 CLR 67 at [87]-[95]
In relation to the Original Tribunal’s findings, at [49] of the Original Decision, that the email was erroneous in a critical matter because it wrongly referred to section 23D(3)(I) of the Credit Reporting Act, the appellant says this is of little consequence.[24] The appellant acknowledges that the paragraph reference should be to the Privacy Act, not the Credit Reporting Act, and a lowercase (i), rather than an uppercase (I). However, the appellant submits that there is nothing in substance wrong with that reference. Moreover, the appellant argues there is no evidence that respondent sought advice and no suggestion that she was confused by the reference.
[24] Appellants submissions, pages 20 and 21of the transcript of proceedings 28 January 2021
In relation to the Original Tribunal’s finding that the August email contained a “critical inaccuracy”, because the “notice states that the [respondent] will be offered help for the next 7 days”, the appellant says that section 21D(3)(d) of the Privacy Act merely requires that a period of at least 14 days pass before the default information may be provided to a credit reporting agency. There is no requirement to state this timeframe in the notice and it cannot be considered critical information. What is critical is that the notice state the intention to disclose the credit information which, the appellant submitted, was done in this case.
Further, the appellant says, on a fair reading of the August email the reference to an “offer to help for the next 7 days” is made in reference to the help being available by way of a range of payment offers – that is to say the writer of the letter is offering a period of seven days in which the recipient can request help. It does not suggest that seven days is the period that the appellant will wait before notifying credit reporting agencies.
Moreover, the appellant submitted that even if the notice was required to refer to the 14-day time period, there is no proper basis to conclude in the circumstances of the provision of the August email that such omission and the reference to a seven-day period resulted in invalidity. The appellant noted the long-standing principle that it is not parliament’s intention that every act of noncompliance with a legislative requirement results in invalidity and the intention of the legislation must be examined.[25] When considering whether invalidity results from a defect in a notice, the extent and consequences of the components must be considered.[26] Drawing together these principles, the respondent submitted that the consequences of any deficiency in the August email were not sufficient to invalidate it as a section 21D notice.
[25] see Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
[26] see SZOFE v Minister for Immigration and Citizenship [2010] FCAFC 79
Following this, the appellant also argued that the Tribunal should have regard to the respondent’s circumstances. There was, it was submitted, no proper basis for the Tribunal to conclude that the respondent suffered any practical injustice or any adverse consequences in the reference to the seven day period rather than the 14-day period. She was repeatedly put on notice over a 12-month period of the risk of default information being placed on her credit history that included, as the Original Tribunal observed, emails in January and February. There’s no doubt the respondent received the 31 August 2018 email. She made no attempt to engage with IFS as a consequence to pay the debt or to seek financial assistance. There was no evidence that she did anything in response to the email until 27 September 2018, after the credit information disclosure was made.
Properly, the applicant conceded that its case relies upon the Tribunal accepting that the August email was a valid notice, and that the explanatory material following the asterisks in that email satisfied the requirements of section 21D(3)(d).[27] The appellant did not suggest that the Original or Appeal Tribunal had the power to correct a defective notice.
The respondent’s arguments
[27] Transcript of proceedings 20 November 2020 page 25, lines 9-10
The respondent’s starting position is that the appellant misconstrued aspects of the Original Tribunal’s decision.
The respondent says that at no point did the Original Tribunal assert that section 21D(3)(d)(i) required the inclusion of certain “critical” information. Rather, the Tribunal was concerned about inaccuracies about material matters that were extraneously included[28] in the August email, and the effect that it had on the recipient:
Rather, from a legal perspective, what the tribunal was acknowledging was that the appellant had included information in the notice itself which, to the ordinary reader of the notice, would be considered material or important or critical, and by reason of that information being inaccurate the effect of that was to change the notice from one that is indeed a notice that has a character of a [section] 21D notice into a notice that simply doesn’t have that identity.[29]
[28] Transcript of proceedings 28 January 2021 pages 63-64
[29] Transcript of proceedings 28 January 2021 page 64, lines 39-45
Turning to the notice itself, the respondent agreed with the appellant that all section 21D(3)(d)(i) of the Privacy Act requires the appellant to do is to give to the respondent a “notice in writing stating that the provider intends to disclose the information to the credit reporting body”. However, the respondent submits that the August email does not declare any such intention with sufficient clarity that it can be relied upon as satisfying this requirement.
The respondent submitted that the only comment in the August email that is even vaguely capable of satisfying the requirements of section 21D(3)(c)(i) was the footnote passage following the double asterisk that states:
Pursuant to Section 21D(3)(d)(l) 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.
Without conceding that this passage does meet the requirements of section 21D(3)(d)(i) the respondent then sets out what it says are multiple deficiencies in the August email which undermine the statement.
First, the August email is expressed in a conditional manner that leaves the reader uncertain as to when or if the disclosure might be made. This is said to be particularly so in circumstances where, at the time at which the notice was issued, the respondent was already in default. The respondent had already received debt notices and separate communications from various debt collection and legal entities and had been in dispute for some time, and the statement indicated that a resolution might still be available. The respondent submitted that the language of the August email can be read as suggesting that disclosure would not be made so long as the parties were exploring the resolution of the debt, or the quantum. Indeed, the prominence of the ‘offer of help’ emphasised that the purpose of the August email was to offer assistance to the respondent in relation to the debt, rather than to warn of an imminent disclosure of credit information.
The respondent submitted that a section 21D notice is intended to serve the statutory function of giving the recipient a final opportunity to pay the debt before disclosure is made. However, the August email is drafted in such a way that it alludes to the possibility that the payment default had already been listed, and if listed it encourages the recipient to work with the writer to “get it updated and paid in full”. That the notice suggests that the default information may already have been disclosed only operates to confuse the effect of the notice further. Additionally, the respondent submitted the August email was not clear as to what ‘credit information’ might be disclosed, and also does not specify the specific credit reporting body to which the disclosure of the credit information is proposed to be made. The respondent submitted that the use of the word ‘the’ in section 21D(3)(d)(i) required specificity in these respects.
The respondent submitted the confusion was compounded by the infelicitous placement of the double asterisk leading to the footnoted passage quoted in paragraph 40 above. The respondent submitted that this ambiguity is inconsistent with the appellant’s proposition that the August email constituted a statement or an unequivocal declaration of intention sufficient to engage section 21D.
The respondent agrees with the appellant that a section 21D notice does not need to cite its legislative basis in order to be valid. However, the respondent says that the Original Tribunal’s reasoning does not require this either. Rather, the respondent submits, what the Original Tribunal required was that “consistent with the well-accepted common law principles of construction”, where the appellant chooses to include information not required by the statute the erroneous nature of that information may displace the notice’s character as a notice given under the statute.
The authority cited by the respondent in support of this proposition is Litevale v Lismore City Council (1997) 96 LGERA 91 (Litevale), which concerned the exhibition of a proposed local environment plan. Sheppard AJA stated (at page 112):
…a notice which, because of surplusage or for some other reason, is misleading , or capable of being misleading in a material respect, cannot be a notice under the section, notwithstanding that it contains the required statutory information…It is when material is added that the problem arises. There is then the danger that the notice becomes a notice either of something else or of the required information and an additional matter which may mislead readers into thinking that the proposed change does not involve as much as it in fact does.
Turning to the August email’s “offer of help for the next 7 days”, the respondent submits that the Original Tribunal did not suggest that this was indicative of the time lapse between the disclosure and the notice. The respondent accepted the appellant’s submission that the purpose of the reference to a 7-day notice period was to reflect the appellant’s offer to negotiate an alternative payment arrangement – “In this sense it was a well-intentioned offer to assist the respondent.” The difficulty the respondent submitted is not what the August email says, but what it doesn’t. Objectively understood a recipient of the August email might conclude that if they did not accept the writer’s offer of help, the information would be disclosed after seven days.
The respondent submitted that the statutory purpose of a section 21D notice is to “trigger the statutory right of the credit provider to disclose the customer’s default information to a credit reporting agency, but only after the customer has been given the opportunity to repay the debt the subject of the notice.” This purpose is expressed in the explanatory memorandum to the Privacy Amendment (Enhancing Privacy Protection) Bill 2012 (Cth) which stated that the purpose of the provision is to “provide individuals with one final opportunity to make overdue payments”. The fact section 21D requires at least 14 days to have passed since the giving of information before the default information may be disclosed fortifies the proposition that this is the purpose. The respondent argued that in light of the confusing information in the August email, this purpose was not achieved.
Consideration – the section 21D issue
In the Appeal Tribunal’s view the key issue in this appeal is whether the August email meets the requirements of section 21D(3)(d)(i) of the Privacy Act. If it does not, the respondent had no lawful basis upon which to disclose the credit information. The parties agreed the appeal could be distilled to this critical issue.
For the most part, the legislative requirements are clear.
Section 21D(1) of the Privacy Act provides that a credit provider must not disclose credit information about an individual to a credit reporting body (whether or not the body’s credit reporting business is carried out in Australia). This is the prohibition.
However section 21D(2) provides that subsection (1) does not apply to disclosure of credit information about an individual if, among other things, the credit information meets the requirements of subsection (3). Hence, there is an exception to the prohibition in section 21D(1), but only where the circumstances as provided for in subsection 21D(3) are met.
Subsection 21D(3) then sets out a number of requirements that must be met before an exception is available and a credit information disclosure can be made. The key requirement imposed by section 21D(3)(d)(i) can be broken down into constituent parts as follows:
(a)the credit provider
(b)gives
(c)the individual
(d)a notice in writing
(e)stating that the credit provider intends to disclose
(f)the information
(g)to the credit reporting body.
Section 21D(3)(d)(ii) requires that such notice be provided 14 days before the disclosure of the credit information occurs.
There is no dispute that a notice in writing was given to the respondent. Argument before the Appeal Tribunal centred largely on items (e) and (f).
The appellant says that the original tribunal erred in finding that the August email did not meet the requirements of section 21D(3)(d)(i).
The Appeal Tribunal has given consideration to the arguments of both parties. On balance, we accept the respondent’s arguments as best reflecting the Original Tribunal’s decision.
Where the appellant’s argument is compelling is the submission that the Tribunal erred in finding that “Notices that carry a penalty if not complied with are to be construed strictly where penalties apply. A penalty applied in this case”.[30] We accept that it is not appropriate to characterise the notice as attracting a ‘penalty’, although it may be that case law in this area is relevant by analogy.
[30] Original Decision at [47]
However, even accepting that there was an error of law in relation to this aspect of the decision, we are not satisfied that this is sufficient basis to overturn the original decision. This is because for the reasons set out below we are satisfied that the August email is so deficient that it is not a notice in compliance with section 21D(3)(d)(i) of the Privacy Act.
We think it would be useful to make some broader observations about the operation of section 21D.
Section 21D(3)(d)(i) is not a demanding section. It requires only one thing: that the credit provider provide the debtor with a notice in writing that states words to the effect of: “the credit provider intends to disclose your default information to the credit reporting agency”.
Put simply, the August email does not contain those words, nor any words to that effect. Moreover, we accept the submission of the respondent that it does not express or envisage an intention to disclose the default information. Indeed, it is ambiguous as to whether that disclosure has already taken place.
For example, the opening lines to the email set out that there has been a loss of contact, that the debt is still owing, and then go on to say that entering into a payment arrangement may help the respondent get finance in the future by “stopping this payment being listed as a payment default* … or, if it has already been listed, working with you to get it updated.” Read in context, those opening sentences are not a warning that credit information may be disclosed, but an offer of assistance to prevent that happening, or resolve the issue if it does. No doubt, this was well intended. However, the language reasonably leads to the inference that ACTEW may have listed the debt, or may be considering it, but the debt agency is offering a payment plan that helps in either case.
That the notice is issued by a debt collection agency, rather than ACTEWAGL also potentially confuses the matter. It would not be unreasonable to read the letter as an offer by the debt collection agency to arrange payment, failing which the ACTEWAGL may list the debt. Further, the nature of the debt collection agency’s role in the unfolding events is not clearly specified in the August email. Section 21D(3)(d)(i) on its face contemplates a direct notification from the credit provider to the consumer. As the Original Tribunal pointed out, in todays world of online scams and unsolicited text messages, certainty as to the identity of the entity corresponding with the consumer is very important. If the act of giving the notice is to be outsourced to a third party, the legal authority for the third party to give that notice should in our view be made clear in the notice itself.
The August email is similarly deficient in expressly identifying the credit information which is proposed to be disclosed (although it might be inferred from surrounding content). The August email also gives no indication of which particular credit reporting agency the disclosure will be made to – this information may be important to the consumer in seeking to confirm whether disclosure has been made and to take subsequent steps. We have not considered the effect of these inadequacies in further detail due to our other conclusions.
Turning to the passages under the single asterisk, and the words “what is a payment default”, these appear to be an addendum to the email, appearing under the signature block of the writer. The layout suggests that the information is additional, not the purpose of the email. The paragraphs set out when disclosure can be made, but at no time state that it will be. Again, an inference can reasonably be made that a consequence will be that information may be listed on a credit reporting agency. It does not suggest that ACTEW has yet formed the intention to do that, or that the listing is imminent.
The passage under the double asterisk was relied upon by the appellant as constituting the section 21D notice. We are not persuaded by this argument. One cannot make a document meet a legal requirement by simply saying in the document that it does.
The inadequacies of the August email are further compounded by the fact that the email contained inaccurate information about extraneous matters, including the legislative basis for the disclosure of the information, and the offer of assistance, open for seven days, in the absence of any information about the timeframe for disclosure.
We agree with the submissions of the respondent that the Original Tribunal was not suggesting that the legislative basis of the notice or the 14-day period for disclosure were ‘critical information’ in the sense of needing to be included for the notice to be valid, but rather that the inclusion of this information rendered the notice “misleading and inaccurate”.[31] As is clear from Litevale, even where a statutory scheme does not require that a notice contain certain information, if that information is included, and it is inaccurate, it may mislead the reader into thinking the notice is something it was not.
[31] Original Decision at [51]
We note here that, had the August email contained a clear and unambiguous statement that ACTEW intended to disclose the credit information to the credit reporting agency, then the inclusion of the additional information may have had little consequence for the character of the notice. However, there is no such clear statement, and the additional information does not correct the deficiency but simply adds to reader confusion and gives the August email a character of something other than a section 21D notice.
The Original Tribunal described the August email as an “invalid” section 21D notice. In our view, it is perhaps more accurate to say that the August email in fact does not contain the legislated content and thus was, in law, not a notice for the purposes of section 21D(3)(d)(i) at all. However, the practical consequences of these conclusions are the same in either case. The appellant was prohibited under section 21D(1) of the Privacy Act from disclosing the credit information, and there is no valid notice for the purposes of section 21D(3)(d)(i) that permits an exception.
We turn next to the appellant’s argument that, even if the Tribunal were satisfied that the August email did not satisfy section 21D(3)(d)(i), it should not grant the respondent the relief in the nature of Order 1, on the basis that the deficiencies in the notice do not give rise to any practical unfairness, injustice or adverse consequence.[32]
[32] Transcript of proceedings 20 November 2020 page 13, lines 39-40
In the transcript of the Original Decision, at page 40, line 4, the Senior Member asks the respondent if she received and read the section 21D email. The respondent stated that she did not. There is no suggestion that the respondent was personally misled. Having regard to the history of this matter and the respondent’s interactions with the appellant, its agents and lawyers, it is possible that the respondent was aware that the debt was owed, that ACTEW did not accept that she had a basis to not pay it, and that ACTEW was contemplating reporting the default to a credit reporting agency. It is possible that the lack of a section 21D notice did not cause the respondent any disadvantage, confusion or harm.
Even if the Original Tribunal, or the Appeal Tribunal now on appeal, were satisfied of those facts, we would not interfere with the substance of the Original Tribunal’s orders. This is for two reasons.
First, the prohibition in section 21D is absolute, and the exceptions are enlivened only where the strict requirements for an exclusion set out in that section are made out. Those exclusions require only that there be an appropriate notice. The personal circumstances or knowledge of the respondent are irrelevant to that question.
Second, it cannot be disputed that the Original Tribunal had a discretion as to what orders it should make as a consequence of finding that the Privacy Act had not been complied with. Section 178 of the Utilities Act 2000 provides the discretionary power to make orders, declarations or directions where a utility has contravened Part 3A of the Privacy Act in the course of providing a utility service. How should that discretion be exercised in this case?
The respondent submitted these powers are to be exercised with an awareness of the importance of consumer protection under both pieces of legislation. The appellant submitted that the ability of a credit provider to disclose default information to a credit reporting body also served an important public purpose. Also, the appellant pointed out that because the respondent has now paid the debt, that payment is itself recorded on the credit file.
While there is a public interest in allowing accurate credit information to be available to credit providers, in our view there is a clear legislative intention that such information should only be disclosed in accordance with the mandated process.
It is important that breaches of the legislation are required to be remedied not only for the individual consumer but also at a systemic level this encourages credit providers to incur the administrative costs of ensuring their business processes are compliant. In this case, the orders of the Original Tribunal were to remedy the breach, the impact of these orders on the appellant was not disproportionate and the decision itself may send a message to other credit providers.
For these reasons, we do not think that the Original Tribunal was in error in the exercise of discretion to make the orders the subject of this appeal[33].
[33] Applying the principles set out in House v the King (1936) 55 CLR 499
Indeed, in our re-exercise of that discretion[34], we do not think that the personal circumstances of the respondent, her state of mind, or the lack of any real disadvantage – even if made out – weigh very heavily against the need to remedy the breach and the public interest in encouraging credit providers to meet their legislated obligations.
[34] As a consequence of our finding at paragraphs 58 and 59 of error by the Original Tribunal, and our conclusion that, for different reasons, the August email did not comply with section 21D
Finally, we consider the wording of the Orders appealed from. Order 1 of the Orders of 4 June 2020 requires the appellant to ‘remove the default from the credit file’ and advise the respondent that this has been done. The appellant has pointed out that it does not control the credit file directly. Order 1 might perhaps have been better expressed as requiring the appellant to ‘do all things necessary to remove the default from the credit file’.
The respondent has submitted that there are processes available under the Privacy Act to allow a credit provider to correct information incorrectly disclosed. There was no evidence before the Appeal Tribunal that those processes are ineffective or unavailable in this case.
For the avoidance of doubt, we will make orders amending the wording of Order 1 in this respect, and otherwise dismissing the appeal.
………………………………..
President M-T Daniel
For and on behalf of the Tribunal
| Date(s) of hearing | 20 November 2020, 28 January 2021 |
| Counsel for the Applicant: | Mr N Swan |
| Solicitor for the Applicant: | Ms K Cooke, HWL Ebsworth |
| Counsel for the Respondent: | Mr R Pietriche |
| Solicitor for the Respondent: | Ms Y Fardous, Lehman Walsh |
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