James v Icon Retail Investments Limited ACN 074 371 207 and AGL Act Retail Investments Pty Limited ACN 093 631 586 Trading as ActewAGL Retail (Energy and Water) - [2023] ACAT 41

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

JAMES v ICON RETAIL INVESTMENTS LIMITED ACN 074 371 207 and AGL ACT RETAIL INVESTMENTS PTY LIMITED ACN 093 631 586 TRADING AS ACTEWAGL RETAIL (Energy and Water) [2023] ACAT 41

GEN 3/2023

Catchwords: ENERGY AND WATER – multiple and consistent noncompliance with the directions of the tribunal over many months – failure to make submissions despite orders – late and inadequate submission of documents – tribunal obliged to resolve matters quickly – erroneous reliance on historic documents that were not appropriately filed with the tribunal or the respondent – respondent prejudiced by noncompliance with tribunal orders – claim dismissed in the interest of justice – claim dismissed for failure to comply with orders of the tribunal
Legislation cited: Utilities Act 2000 s 172
ACT Civil and Administrative Tribunal Act 2008 ss 6, 56

Tribunal:Senior Member S Lancken

Date of Orders:  2 August 2023
Date of Reasons for Decision:      11 August 2023
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          GEN 3/2023
BETWEEN:
ANNIE STEPHANIE BAHIYAH JAMES
Applicant

AND:
ICON RETAIL INVESTMENTS LIMITED ACN 074 371 207 and AGL ACT RETAIL INVESTMENTS PTY LIMITED ACN 093 631 586 TRADING AS ACTEWAGL RETAIL
Respondent

TRIBUNAL:Senior Member S Lancken

DATE:2 August 2023

ORDER

The Tribunal orders that:

The Application be dismissed.

……………………………..
Senior Member S Lancken

REASONS FOR DECISION

In November 2022, the respondent was providing power to the applicant’s home (the Premises).
On or about 22 November 2022 the respondent disconnected power to the Premises.
The applicant lodged a complaint with the respondent in relation to the disconnection and applied to the ACT Civil and Administrative Tribunal (the tribunal) under section 172 of the Utilities Act 2000 in relation to the complaint.
The complaint by the applicant was that the respondent had inappropriately disconnected the power to the premises either in breach of a contract or in breach of the law. The complaint was disputed by the respondent.
The complaint was not resolved between the parties.
On 7 March 2023, the tribunal sent an email to the applicant. That email provided information regarding the process for the applicant to further pursue the complaint in the tribunal. That email included links to templates and advice regarding the processes of the tribunal. That email stated:
I cannot offer you advice. You may attach any annexure to your application, if you wish to do so. There will be further opportunities to provide submissions and any relevant documents you wish to rely on.
On 14 March 2023, the applicant lodged a Hearing Application form with the tribunal. The application form did not attach any documents.
On 17 March 2023, the parties were advised of a Directions Hearing on 4 April 2023.
On 4 April 2023, the following directions were made by the tribunal:
1.       Applicant to file and serve an outline of the claim, setting out what they seek and why, and any evidence they rely on by 2 May 2023;
2.       Respondent is to file anything in reply by 30 May 2023;
3.       Applicant is to file anything in reply by 6 June 2023;
4.       The matter is listed for hearing at 10.00 am on Monday 19 June 2023.
On 3 May 2023, the applicant sought an extension of time to submit evidence. In an email to the tribunal, the applicant said:
We have spoken to Red Energy who is our new energy supplier and our first meter read is not until 7 June 2023. We would like to rely on our energy usages for one part of our application - as such request an extension to submit evidence until 14 June 2023.
The respondent agreed to the extension of the timetable on 3 May 2023 and further directions were made on 8 May 2023 as follows:
1.       The orders of 4 April 2023 are set aside;
2.       Applicant to file and serve an outline of the claim, setting out what they seek and why, and any evidence they rely on by 14 June 2023;
3.       Respondent is to file anything in reply by 12 July 2023;
4.       Applicant is to file anything in reply by 19 July 2023;
5.       The matter is listed for hearing at 10.00 am on Wednesday 2 August 2023.
On 19 June 2023, the Applicant wrote to the tribunal seeking another extension of time to comply with Order 2 of 8 May 2023.
On 21 June 2023, the tribunal sent a lengthy email to the applicant refusing the request for extension of time and confirming the hearing date of 2 August 2023. That email provided reasons why the request for an extension was refused.
On 22 June 2023, the respondent wrote to the tribunal and the applicant foreshadowing an application to dismiss the applicant’s complaint if the applicant did not comply with Order 2 of 8 May 2023 by 23 June 2023.
On 31 July 2023, the applicant sent an email to the tribunal which did not attach any statements, or documents. The email did not set out what the applicant was seeking.
On 1 August 2023, the respondent wrote to the tribunal pointing out the noncompliance by the applicant with the directions of 8 May 2023 and requesting an adjournment of the hearing that was to take place the next day.
The tribunal wrote to the parties on 1 August 2023 advising that the adjournment request would be considered at the hearing the next day.
The parties appeared before the Tribunal on 2 August 2023.
At the date of the hearing, the applicant had not complied with the orders of 8 May 2023.
At the hearing on 2 August 2023, the applicant was represented by her husband.
At the hearing, the applicant submitted that she had operated on an assumption that documents that were supplied to the tribunal before 7 March 2023 would or could be relied on.
The applicant argued that it was difficult to comply with directions because they have five children and run a small business.
The assumption of the applicant in relation to documents supplied to the tribunal before 7 March 2023 was never communicated to the respondent or to the tribunal. It is inconsistent with the directions made on 4 April 2023 and 8 May 2023. It is inconsistent with the requests made by the applicant on three occasions for more time to comply with the directions.
At no time has the applicant articulated to the tribunal or the respondent what is sought from the application. At the hearing, the applicant said that they seek a “set off” against electricity charges levied by the respondent but did not articulate the quantum of that set off. The email sent by the applicant on 1 August 2023 did not advise the quantum of such a set off.
Section 6 of the ACT Civil and Administrative Tribunal Act 2008 (the Act) is as follows:
6 Objects of Act
The objects of this Act are—
(a)to provide for a wide range of matters arising under legislation to be resolved by the ACT Civil and Administrative Tribunal; and
(b)to ensure that access to the tribunal is simple and inexpensive, for all people who need to deal with the tribunal; and
(c)to ensure that applications to the tribunal are resolved as quickly as is consistent with achieving justice…
Section 56 of the Act is as follows:
56 Other actions by tribunal
The tribunal may, by order—
…
(d)take any other action in relation to an application—
(i)that the tribunal considers appropriate; and
(ii)that is consistent with this Act or an authorising law.
Examples
1an order dismissing a proceeding on the withdrawal of the applicant
2an order dismissing a proceeding for want of prosecution
3an order staying an order, pending an appeal
Note 1The tribunal must observe natural justice and procedural fairness (see s7).
The procedures of the tribunal include making directions to ensure that matters are prepared for and proceed to hearing as quickly as is consistent with achieving justice.
In this case the applicant was offered every opportunity to articulate the claim that was being made against the respondent. The applicant has not done so.
The applicant was offered every opportunity to articulate what evidence would be relied on to support the claim. If that evidence was to include documents previously sent to the other party or filed, they did not advise either the tribunal or the respondent which of those documents were to be relied on.
The applicant’s communications when seeking extensions of time demonstrate an understanding of the need to comply with directions and to file evidence. The email to the tribunal of 3 May 2023 is demonstrative of such an understanding.
Managing a family with five children and conducting a small business demands considerable time and resources and involves some stress. The circumstances of the applicant, however, were known to the applicant at the time the application to the tribunal was filed in March 2023 and on each occasion when directions were made. Nothing changed in relation to those circumstances from the time directions were made until 31 July 2023, the day before the hearing when the applicant first purported to comply with those directions.
The applicant did not argue that any emergency or circumstance beyond control prevented compliance with the directions.
In fulfilling its responsibility to achieve justice in a timely manner the tribunal must be fair to both parties.
The history of this matter set out in these reasons demonstrate that the tribunal and the respondent was fair to the applicant in agreeing to extensions of time to comply with directions.
A respondent is entitled to know the case that is to be put against it, including the value of any monetary claim being made. The respondent is entitled to be informed of the case to be made against it in time for it to investigate and respond to any allegations of fact or submissions of the applicant.
It is unfair to the respondent for it to be given little or no opportunity to prepare a response and marshal evidence to answer an application.
The tribunal is obliged to resolve matters quickly. It cannot endlessly offer adjournments or extensions of time to comply with directions for the preparation of a claim where there is not a valid reason for delay and the other party is prejudiced.
Multiple and persistent noncompliance with the directions of the tribunal over many months, and the failure of the applicant to articulate what orders or other relief is being sought from the tribunal, are indicative of a failure by the applicant to properly prosecute the claim/s against the respondent.
The respondent is prejudiced by the noncompliance.
It is in the interests of justice that the application be dismissed.

……………………………

Senior Member S Lancken

Date(s) of hearing	2 August 2023
Applicant:	In person, Matthew James speaking on her behalf
Solicitor for the Respondent:	Ms E Hagerty