McQuire v ActewAGL Distribution

[2014] ACAT 40

`

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

MCQUIRE v ACTEWAGL DISTRIBUTION & ANOR
(Energy and Water) [2014] ACAT 40

Case Number   EW 2013/996

Catchwords:       ENERGY AND WATER – complaint against utility – whether jurisdiction to consider complaint – action taken by utility to prune tree to remove interference with electricity network – whether complaint can be heard if damages claimed exceed $10,000

Legislation:Utilities Act 2000, ss 103, 106, 110, 125, 171, 172, 178, 181

ACT Civil and Administrative Tribunal Act 2008, ss 6, 36, 54, 56

Cases:Re North Canberra Community Council and ACT Planning and Land Authority & Canberra District Rugby League Football Club Limited (Administrative Review) [2014] ACAT 1

Text:DC Pearce and RS Geddes, Statutory Interpretation in Australia, seventh edition, LexisNexis Butterworths, 2011

Tribunal:            Mr P. Sutherland - Senior Member
  Ms L. Beacroft - Member

Date of Orders:  3 July 2014

Date of Reasons for Decision:      3 July 2014

AUSTRALIAN CAPITAL TERRITORY    )
CIVIL & ADMINISTRATIVE TRIBUNAL        )       EW 2013/996

BETWEEN:

IAN MCQUIRE

Applicant

AND:

ACTEW DISTRIBUTION LTD (ACN 073 025 224)

AND

JAMENA NETWORKS (ACT) PTY LTD

(ACN 008 552 663) TRADING AS

"ACTEWAGL DISTRIBUTION"

Respondent

AND:

USCHI MCQUIRE

Party Joined

TRIBUNAL:              Mr P. Sutherland - Senior Member
  Ms L. Beacroft - Member

DATE:  3 July 2014

ORDERS

The Tribunal orders that:

1.Upon finding that it has jurisdiction to hear the Application, the matter is to be listed for a further hearing on a date to be advised by the Tribunal.

………………………………..
Mr P Sutherland

Senior Member

for and on behalf of the Tribunal

REASONS FOR DECISION

THE COMPLAINT

1.On 16 January 2013, without notice to the Applicant Mr Ian McQuire, a contractor to ActewAGL Distribution ("ActewAGL") pruned two large claret ash trees in the Applicant's backyard to remove their interference with power lines situated on public land close to the back fence of the property.  A significant amount of foliage was removed from the trees and, as a result, Mr McQuire claimed that he suffered loss in the form of reduced shading of the back yard, reduced privacy for private activities in the back yard, and reduced visual amenity.

2.Mr McQuire complained to ActewAGL seeking, in particular, a half page apology published in the Canberra Times and signed by the Chief Executive Officer of the company.

3.After a lengthy complaint process, ActewAGL declined to make a public apology and, on 3 September 2013, Mr McQuire made a complaint application to the ACT Civil and Administrative Tribunal (the Tribunal) in its role as energy and water ombudsman for the Australian Capital Territory.

COMPLAINT RESOLUTION PROCESS

4.In accordance with its standard energy and water complaint procedures, the Tribunal attempted to resolve the complaint by facilitating communication between Mr McQuire and the relevant utility, ActewAGL Distribution.  The first step in this process was to invite the utility to respond in writing to the complaint.

5.On Monday 14 October 2013, ActewAGL advised that tree limbs had been identified from a helicopter survey as being dangerously close to the High Voltage network, with a minimum distance of 39 cm where a minimum clearance of 2 metres was required.  The tree was identified as a "burner", meaning that it required urgent attention.  An ActewAGL contractor pruned the trees as a matter of urgency, without notice to the property owner, and at the utility's expense.  ActewAGL apologized for any inconvenience or distress that Mr McQuire may have suffered as a result of the matter, but declined to publish an apology in a local newspaper.

6.On 19 October 2013, Mr McQuire advised that he did not accept ActewAGL's response, contending that the utility’s ‘Rambo’ or uncontrolled 'normal practices' were illegal and "I do not want to see them get away with it".

HEARING PROCESSES

7.As it was clear that resolution of the complaint could not be achieved by further discussion between the parties, the Tribunal set the matter down for a conference and directions hearing on 6 November 2013.  At the Directions Hearing, the matter was set down for hearing in late January 2014, with the Applicant directed to provide a quantification of loss and damage by 7 December 2013, and the Respondent to file, not later than 10 business days before the hearing, witness statements, a list of authorities, and a Response to three issues remaining in contention:

(i)whether the clearance work undertaken, and the extent of this work, was authorised by legislation;

(ii)     whether the Respondent's entry onto the land of the Applicant was lawful; and

(ii)the nature and quantum of loss and damage claimed by the Applicant.

8.On 6 December 2013, this Order was amended to set a hearing date of 26 February 2014, with the Applicant to file the quantification of loss by 20 January 2014 and the Respondent to file their Response by 12 February 2014.

9.During December 2013, the Applicant, the Tribunal and the Respondent corresponded about issues of procedure. Among other matters, the Tribunal enquired whether the Applicant’s wife, as a “consumer” in the premises, wished to be joined as a party to the matter. She was to be subsequently joined.

10.On 16 January 2014, the Applicant filed a large number of documents, said to be the quantification of loss and damage required to be filed by 20 January 2014.  The documents included a 2 page summary of views, a quotation for a shade sail ($5,907), photographs and explanations about damage to the tree and shading in the back yard, and medical information about aggravation of prior medical conditions attributed to ActewAGL's actions.  The Tribunal advised the Applicant on 13 February 2014 that these documents provided further evidence and contentions, but did not provide an adequate quantification of loss and damage because the document did not identify specific amounts claimed and the generality of claims exceeded $10,000.  The Tribunal noted that the Applicant's reference to "a figure, say a million dollars and counting", if taken as his claim for loss and damage, would lead to dismissal of the application as an amount greater than $10,000.

11.There was some delay in serving the Applicant's "quantification of loss and damage" on the Respondent, which finally received it on 28 January 2014.  An extension of time for filing of documents was requested by the Respondent.

12.On 6 February 2014, the Respondent sent an email to the Tribunal attaching a document headed "Submission on Jurisdiction" which sought the following "Relief":

a.An order that the hearing listed on 26 February 2014 is vacated and any previous orders are dismissed;

b.An order from the Tribunal that the matter be dismissed under ss 176(1)(a) and (h) of the Utilities Act2000 (the Utilities Act), or ss 36(b) and 54 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act), or s 56(b) of the ACAT Act.

13.On 12 February 2014, the Tribunal issued Orders and Reasons for Decision denying the relief sought (namely summary dismissal of the Application), taking the "Submission on Jurisdiction" as an Application for dismissal of the matter for want of jurisdiction, and stating that this issue of jurisdiction would be heard by the Tribunal at the hearing on 26 February 2014.  Those Orders and Reasons are Attachment B to these Reasons for Decision.

14.On 19 February 2014, a Directions Hearing was held to progress the readiness of the matter for hearing on 26 February 2014.  The Tribunal informed the parties that the hearing on 26 February 2014 would be limited to the issue of jurisdiction, and would not cover the issue of quantification of loss and damage.  Hearing the issue of jurisdiction necessarily involved hearing all of the evidence on the utility's actions on 16 January 2013.  Orders were made concerning quantification of loss and attendance of witnesses.

15.On 24 February 2014, the Applicant filed a five page document which the Tribunal accepted as a satisfactory quantification of loss and damage, being:

Mr McQuire

$6,152:  $5,907 for a shade sail, $165 for a safety assessment of the trees and $80 for a toner cartridge;

$3,200:  loss of privacy on 64 occasions over the next five years @ $50 per occasion;

$600:  compensation for situation of emotional upset @ $50 per month for 12 months.

$9,952:  Total claim for compensation in respect of Mr McQuire.

Mrs McQuire

$5,000:  impact of loss of shading on family and friend gatherings at a bar-b-que, 50 occasions @ $100;

$3,200:  loss of privacy, 64 occasions @ $50;

$1,300:  emotional upset resulting for ActewAGL's actions and flowing over from her husband.

$9,500:  Total claim for Mrs McQuire.

16.On 26 February 2014, the Tribunal conducted a hearing on jurisdiction.  At the Respondent's request, the Tribunal placed a non-publication order on the name of the company contracted by the Respondent ActewAGL to undertake the tree pruning work and the name of the crew leader employed by this company who gave evidence at the hearing.  The Tribunal joined Mrs Uschi McQuire as a party to the matter as she was seeking compensation for loss and damage she suffered as a consumer in the premises.

17.Evidence for the Respondent was given by Mr Clinton McAlister, Manager, Works Enablement, ActewAGL Distribution and by a crew leader employed by a tree service contracted by ActewAGL to trim the trees in question.  The second witness is referred to in these Reasons as "the Crew Leader".  Evidence for the Applicant was given by Mr McQuire and by Mr Patrick Byrne, son-in-law of the Applicant, who assisted the Applicant in trimming the trees on Saturday 11 January 2013.

18.The Tribunal recorded the following Exhibits:

a.      Exhibit R1. LIDAR Defect Data

b       Exhibit R2. ActewAGL Identity Card

c.      Exhibit R3. Google Earth Picture

d       Exhibit R4. Crew Leader's Vegetation Management Card

e       Exhibit R5. Australian Standard 4373-2007 – Pruning of Amenity Trees

f       Exhibit A1. Photograph C8

g       Exhibit A2. Photograph C9

h       Exhibit A3. Photograph C2

i        Exhibit A4. Photograph C5

19.The Tribunal reserved its decision on jurisdiction and ordered the Respondent to make written submissions by 28 March 2014 [sic] with a response (if any) by the Applicant by 28 March 2014.  It also ordered the Respondent to file with the Tribunal a copy of "Australian Standard 4373-2007 – Pruning of Amenity Trees". 

20.On 11 March 2014, the Applicant sent the Tribunal a five page email which was accepted as the Applicant's Submissions.  On 31 March 2014, the Respondent filed Further Submissions on Jurisdiction; Submissions on Alleged Contravention and a Reply to the Applicant's Submissions.

21.On 8 May 2014, the Respondent requested that of the Tribunal delay handing down its decision until on or after 10 June 2014 as counsel for the Respondent would be away from Canberra until then and his presence was necessary to consider a possible appeal.  The Tribunal agreed to this request.

22.On 26 May 2014, the Applicant forwarded an email to the Tribunal advising that he had not received a copy of Exhibit R5 "Australian Standard 4373-2007 – Pruning of Amenity Trees", and raising a number of other matters which make no material difference to these Reasons.  The Tribunal supplied the Applicant with a copy of Exhibit R5 and invited him to make written submissions on the effect of the Standards, within seven days of receipt of the document, if he wished to do so.

23.As discussed below, the Tribunal has concluded that it does have jurisdiction. After the Tribunal's decision on jurisdiction has been published, the Tribunal will conduct a further hearing to consider whether the Respondent contravened the Utilities Act and the quantum of any loss or damage suffered by the Applicant and the Party Joined, if a contravention is found.

LEGISLATION

24.The legislation considered by the Tribunal in this phase of its deliberations is the Utilities Act and the ACAT Act.  Part 7 "Network operations" and part 8 "Protection of networks" of the Utilities Act set out a utility's powers and obligations in relation to maintenance and protection of their network. Part 12 of the Utilities Act provides the Tribunal's jurisdiction and powers in relation to complaints against a utility. Sections 36(b), 54 or 56(b) of the ACAT Act are alternate bases upon which the Respondent contends that the Tribunal does not have jurisdiction to hear this application.

25.The relevant sections of these Acts are set out in Attachment A.

JURISDICTION OF THE TRIBUNAL

26.The Respondent raised several issues relating to the jurisdiction of the Tribunal to hear this matter:

(a)there is no item in Table 172 in section 172 of the Utilities Act which gives the Applicant a right to apply to the Tribunal. In particular, item 5 applies only where there is a contravention by a utility "in relation to its network operations" and in this case the utility's actions were taken under part 8 "Protection of networks" and not under part 7 "Network operations" of the Act (the "network operations" contention).

(b)Item 6 in Table 172 similarly does not give jurisdiction as the actions of the contractor under Part 8 were not undertaken as an "authorised person", appointed under part 7 of the Act (the "authorised person" contention).

(c)the Tribunal does not have jurisdiction where the quantum of a claim is greater than $10,000, because of the monetary limitation in section 181(5)(a) of the Act (the "monetary limit" contention).

The "network operations" contention

25.The Respondent submitted that "relating to its network operations" in item 5 in Table 172 is a specific reference to "network operations" in part 7 of the Act and that item 5 gives the Tribunal jurisdiction only where the alleged contravention is a "network operations" action specifically under part 7. Actions under part 8, which involve protection of the network from interference, are not subject to review by the Tribunal under the Utilities Act. The Respondent contended that the rationale for such an exclusion is recognition that, if a utility's exercise of its powers to act in urgent circumstances under part 8 is questioned, it is not for a tribunal operating within a consumer protection jurisdiction to deal with the matter. The matter is not about consumer protection, it is about community safety and properly falls within the responsibility of the regulator, the Independent Competition and Regulatory Commission.

26.In its Further Submissions, the Respondent analysed the definition and use of "network operations" in part 7 and highlighted section 106(2)(d) which specifically states that maintenance of a network facility (a part 7 activity) includes "action to which a network protection notice relates". A network protection notice is issued under section 125(2) in part 8, which means that some actions a utility undertakes under part 8 are also actions it undertakes under part 7. However, in this matter, the Respondent did not issue a network protection notice; rather it proceeded without a notice in urgent circumstances, which is authorised by section 125(7) of the Utilities Act.

27.Part 7 "Network operations" and part 8 "Protection of networks" have some broadly comparable provisions about work on the network, including provisions for a notice to landholders where vegetation clearance work is required, an opportunity for landholders to undertake the required work, and the capacity for the utility to undertake the work at its own expense and without notice to the landholder in "urgent circumstances". The Tribunal considers that the significant difference between the two parts is that part 7 applies where the utility wishes to initiate work on the network (for example, installation of new infrastructure, maintenance, etc) while part 8 applies where a landholder has caused or permitted interference with the network and remedial work is required. Section 110 "Notice about lopping trees etc. on private land" in part 7 and section 125 "Network protection notices" in part 8 operate in a fairly similar manner, but with some specific differences:

·section110 applies only to vegetation while section125 applies broadly to "a structure or activity", which includes interference by vegetation;

·the notice period in section 110(3)(a) is "at least 7 days" while in section 125(4) it is "no less than 14 days";

·section 110(8) provides that the utility may proceed with the work without notice and at its own expense "in urgent circumstances in which it is necessary to protect" four listed factors (which are very broad in scope). Section 125(7) allows the utility to undertake any necessary protection work without notice and at its own expense, however there is no requirement that there be "urgent" circumstances, that is, a time-critical necessity. The reference to a definition of "urgent circumstances" in section 125(7) brings in the same four factors as section 110(8), however there is no urgency requirement. The reason for this difference in drafting is not apparent.

28.The Respondent's main contention about lack of jurisdiction is based on the use of the phrase "network operations" in item 5 in Table 172. It must be noted that the definition of "network operations" in section 103 is expressed to apply "In this part" and the definition of "network operations" in the Dictionary makes it clear that the definition is "for part 7". Accordingly, the definition in section 103 does not formally apply to restrict the meaning of "network operations" in Table 172. Words in an Act are generally assumed to be used consistently, however this approach is readily rebuttable (Pearce and Geddes, [4.7]). In this case, "network operations" in item 6 in Table 172, could have a construction different to the definition in section 103, if the context so suggests.

29.Section 106(2)(d) refers to "action to which a network protection notice relates" and item 5 in Table 172 refers to "an obligation under this Act in relation to its network operations". In Re North Canberra Community Council and ACT Planning and Land Authority & Canberra District Rugby League Football Club Limited, Professor Spender, Presidential Member, observed that the words "relates to" are words of wide but not unlimited operation.  It must be established that the relationship is a real or genuine one; it is not sufficient that some points of correlation can be found. (at [58])

30.In section 106(2)(d), there is a genuine relationship between the action of issuing a network protection notice under section 125(2) and the action of proceeding without the issue of a notice under section 125(7). In each case, the ultimate outcome is work on the network which can arguably be included as work for "the maintenance of a network facility", pursuant to section 106(2) in part 7 of the Act.

31.In item 5 in Table 172, the relevant "complaint" about a contravention by a utility is "in relation to its network operations". A wide operation of this phrase could encompass the totality of a utility's work carried out on its network, rather than the subset of work carried out under part 7, as defined in section 103.

32.In exercising its functions under part 12 of the Utilities Act, the Tribunal must consider the principle "that the rights of complainants under the Act should be protected" (section 171(b)). This is a clear indication that the Tribunal has a consumer protection role in energy and water complaint matters. This principle should be read in conjunction with the Objects set out in section 6 of the ACAT Act. Together, these statutory prescriptions support the view that the Tribunal is intended to provide an accessible form of dispute resolution for customers and consumers seeking resolution of complaints against energy and water utilities in the ACT. In the Tribunal's opinion, this provides a sufficient basis to determine that the Tribunal has jurisdiction in this matter.

33.The Tribunal considers that the Respondent's contentions on jurisdiction have strength, but on balance finds that it has jurisdiction to accept the Applicant's application under item 5 in Table 172, for the reasons discussed above.

The "authorised person" contention

34.The Tribunal accepts the Respondent's contention that item 6 in Table 172 does not enliven the Tribunal's jurisdiction in this matter. The definition of "authorised person" in the Dictionary applies to all of the Utilities Act and Division 7.4 provides for the appointment and permitted actions of authorised persons. There is, however, no requirement in part 8 that network protection activities must be carried out by authorised persons. Section 125(7) authorises the utility "to do whatever is necessary to stop the interference…" and, in this case, the Respondent entered into a contract with a private company to undertake the work it considered necessary to be done. The Crew Leader was not an "authorised person" and was not required by the legislation to be an "authorised person". There was no "act or omission of an authorised person for a utility" in this matter.

The "monetary limit" contention

35.On previous occasions (but not on this occasion), ActewAGL has argued that the Tribunal has no jurisdiction to accept a complaint where the amount in dispute between the utility and the complainant is greater than $10,000. This is plainly incorrect as section 172 of the Utilities Act does not state a monetary limit for applications. The Tribunal can accept applications involving any amount provided the complainant meets the description in column 2 and the complaint falls within column 3 of Table 172. With any energy and water complaint, the Tribunal can investigate the complaint, assist in communication between the parties and seek to resolve the complaint by agreement between the parties, using ADR techniques. However, if the complaint is not resolved through these processes, a question of the Tribunal's power to determine the complaint arises, and the monetary limit of $10,000 may become relevant.

36.In this matter, the Respondent contended that the Tribunal does not have jurisdiction to hear a matter where the quantum claimed is greater than $10,000. It drew attention to the problems that would arise if parties (who are not necessarily familiar with legal processes) had a sense of expectation that they may be entitled to an amount greater than $10,000 when pursuing a claim under part 12 of the Act.

37.The Tribunal considers that it has jurisdiction in relation to claims greater than $10,000, however, because of the limitation of its power to give a direction for a stated amount of compensation to $10,000, the Tribunal generally should not permit applications to proceed to a hearing where the claim is for an amount greater than $10,000.  There may be special circumstances where this approach would not be appropriate, for example, if the claim included mutually exclusive elements and could not, as a matter of law, result in an order for damages greater than $10,000.  Another circumstance, which does not arise in this matter, may be where the claim involves both an adjustment of an account, for example because the account failed to comply with National Energy Customer Framework (NECF) requirements, and a claim for additional loss and compensation arising from that contravention of the NECF.

38.In this matter, Mr McQuire is seeking compensation of $9,952 and Mrs McQuire (a consumer in the premises who is a Party Joined) is seeking compensation of $9,500. Section 181(1) provides that compensation is paid under the section to a complainant who has "suffered loss or damage because of an act by the respondent". It clearly places a maximum in relation to each complainant's loss, not on the amount of compensation which can be ordered in relation to a particular contravention. Thus, in this matter, the two claims are within the powers of the ACAT.

39.Where a claim is for more than $10,000, and special circumstances do not apply, the ACAT would usually offer the complainant an opportunity to reduce their claim to $10,000 or less, by abandoning the excess above $10,000.  This election would bind the complainant in relation to future actions, whether in ACAT or in the Magistrates Court. 

40.     The Tribunal finds that it has jurisdiction to hear the Application.

………………………………..
Mr P Sutherland

Senior Member
for and on behalf of the Tribunal

ATTACHMENT A

Utilities Act 2000

Part 7Network operations

Division 7.1           General

103Definitions for pt 7

In this part:

…

network operations means work carried out by a utility, or an authorised person for a utility, under this part in the exercise of its functions under this Act.

106Maintenance of network facilities

(1)   A utility may, at any time, maintain a network facility and, for that purpose, do anything necessary or desirable, including, for example—

(a)entering and occupying land; and

(b)undertaking any work of a kind mentioned in section 105.

NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(2)   For subsection (1), the maintenance of a network facility includes, for example, the following work:

(a)the alteration, removal, repair or replacement of any part of the facility;

(b)the provisioning of the facility with material or information (whether in electronic form or otherwise);

(c)inspecting or otherwise ensuring the proper functioning of the facility from time to time;

(d)action to which a network protection notice relates.

(3)   This section has effect in relation to a tree that is a registered tree under the Tree Protection Act 2005 subject to that Act, part 3 (Protection of trees).

NoteUnder the Tree Protection Act 2005, pt 3 it is an offence to damage a registered tree (or do prohibited groundwork in the tree’s protection zone) unless the damage or groundwork is allowed under that Act. Application may be made to the conservator for approval of tree damaging activity or prohibited groundwork (including in urgent circumstances).

110Notice about lopping trees etc on private land

(1)   This section applies to network operations to the extent that they involve—

(a)the felling or lopping of trees on private land; or

(b)the trimming of roots of trees or other plants on private land; or

(c)the clearing or removal of vegetation on private land.

(2)   Before a utility begins such operations, it must give the land-holder notice of the proposed operations.

(3)   The notice—

(a)must be given at least 7 days before the operations begin; and

(b)must indicate the trees or vegetation affected and the activity proposed; and

(c)may require the land-holder to carry out the activity within a stated period; and

(d)if paragraph (c) applies—must contain a statement about the effect of subsection (6); and

(e)if the operations relate to other network operations for which notice is required under this division—may be given in or with the notice of the other operations.

(4)   The land-holder may waive its right to all or part of the minimum period of notice under subsection (3) (a).

(5)   If subsection (3) (c) applies, the stated period within which the land-holder is required to carry out the activity must run for at least 7 days commencing on the day the notice is given to the land-holder.

(6)   If the land-holder does not carry out the activity in accordance with a requirement in the notice mentioned in subsection (3) (c)—

(a)the utility may carry out the activity; and

(b)the reasonable expenses thus incurred by the utility are a debt due to the utility by the land-holder.

(7)Subsection (6) (b) does not apply to a tree or vegetation growing on the land before a network facility was installed on the land.

(8)   In urgent circumstances in which it is necessary to protect—

(a)the integrity of a network or a network facility; or

(b)the health or safety of people; or

(c)public or private property; or

(d)the environment;

subsections (2) and (3) do not apply and the utility may carry out the operations at its own expense.

Part 8Protection of networks

Division 8.1           General

123Meaning of interference

In this part:

interference, with a network or network facility, includes an action that—

(a)    interferes with the safe or efficient operation of the network or facility; or

(b)    inhibits or obstructs lawful access to the network or facility;

or is likely to have that effect.

125Network protection notices

(1)   This section applies if a responsible utility is satisfied that a structure or activity on, under or over land or water interferes, or is reasonably likely to interfere, with the network or a network facility.

(2)   The utility may give the land-holder written notice to take whatever action is necessary to stop the interference with the network or facility, or to remove the likelihood of that interference.

(3)   The notice must—

(a)indicate the structure or activity; and

(b)require the land-holder to take stated action to stop the interference, or remove the likelihood of the interference, within a stated period; and

(c)contain a statement about the effect of subsection (5).

(4)   The stated period must be no less than 14 days starting on the date the notice is given to the land-holder.

(5)   If the land-holder does not comply with the notice—

(a)the utility may do whatever is necessary to stop the interference or remove the likelihood of the interference; and

(b)the reasonable expenses thus incurred by the utility are a debt due to the utility by the land-holder.

(6)   Subsection (5) (b) does not apply to a structure that was, or an activity that commenced, on, under or over the land before the installation of the network or facility to which the interference relates.

(7)   In urgent circumstances, subsection (2) does not apply and the utility may do whatever is necessary to stop the interference or to remove the likelihood of the interference—

(a)without notice to the land-holder; and

(b)at the expense of the utility.

(8)   If—

(a)a utility acts under this section in relation to a structure that was, or an activity that commenced, on, under or over the land before the installation of the network or facility to which the interference relates; and

(b)a person suffers loss or damage because of the utility’s action;

the amount of the loss or damage is a debt due to the person by the utility.

(9)   This section has effect in relation to a tree that is a registered tree under the Tree Protection Act 2005 subject to that Act, part 3 (Protection of trees).

NoteUnder the Tree Protection Act 2005, pt 3 it is an offence to damage a registered tree (or do prohibited groundwork in the tree’s protection zone) unless the damage or groundwork is allowed under that Act. Application may be made to the conservator for approval of tree damaging activity or prohibited groundwork (including in urgent circumstances).

(10)  In subsection (7):

urgent circumstances means circumstances in which it is necessary to protect—

(a)    the integrity of the network or facility; or

(b)    the health or safety of people; or

(c)    public or private property; or

(d)    the environment.

Part 12Complaints to ACAT about utilities

171Principles—pt 12

In exercising its functions under this part, the ACAT must consider the following principles:

(a)that utility services should continue to be provided to complainants suffering financial hardship;

(b)that the rights of complainants under the Act should be protected.

172ACAT applications

A person (the complainant) mentioned in table 172, column 2 may apply to the ACAT in relation to a matter (the complaint) mentioned in column 3 in relation to the complainant.

NoteIf a form is approved under the ACT Civil and Administrative Tribunal Act 2008 for the application, the form must be used.

Table 172ACAT applications

NoteItems 3 to 5 do not apply to NERL retailers (see s 75B).

column 1 item	column 2 complainant	column 3 complaint
1	consumer affected by contravention	contravention of customer contract, or customer retail contract or customer connection contract made under the National Energy Retail Law (ACT), by a utility
2	consumer affected by contravention	contravention of an industry code dealing with utility service standards by a utility
3	consumer	a utility fails to provide a utility service to consumer or withdraws a utility service from consumer, and failure or withdrawal causes substantial hardship, or is likely to cause substantial hardship, to consumer
4	person affected by contravention	contravention of s 51 (Protection of personal information) by a utility
5	person affected by contravention	contravention by a utility of an obligation under this Act in relation to its network operations
6	person affected by act or omission	act or omission of an authorised person for a utility in relation to network operations
7	person on whom charge imposed	capital contribution charge imposed under s 101

178ACAT decisions

(1)   This section applies if the ACAT is satisfied, in relation to a complainant, that—

(a)the respondent has—

(i)contravened a customer contract; or

(ii)contravened section 51 (Protection of personal information); or

(iii)contravened an obligation under this Act in relation to its network operations; or

(b)the respondent has caused, or would cause, substantial hardship by failing to provide, or withdrawing, a utility service; or

(c)an authorised person for the respondent has acted improperly in relation to network operations; or

(d)a capital contribution charge, of an amount of not more than $10 000, imposed by the respondent is excessive.

(2)   Without limiting the orders the ACAT may make, the ACAT may—

(a)for a complaint that a capital contribution charge is excessive—give a direction under section 182 (Reviewable capital contribution charges); or

(b)in any other case—

(i)give the written directions to the respondent that it considers necessary requiring the respondent to remedy the matter mentioned in subsection (1); or

(ii)give another direction under this division; or

(iii)make a declaration under this division.

(3)   A respondent must comply with a direction given to it under this division.

181Payment for loss or damage

(1)If the ACAT is satisfied that a complainant suffered loss or damage because of an act by the respondent, or an authorised person for the respondent, of a kind mentioned in section 178 (ACAT decisions), the ACAT may give the respondent a written direction to pay a stated amount to the complainant for the loss or damage.

(2)The direction may not be given in relation to a punitive amount.

(3)The amount payable under the direction is a debt due to the complainant in whose favour the direction is given.

(4)In giving the direction, the ACAT must take account of the extent (if any) to which the complainant—

(a)caused, or contributed to, the loss or damage; or

(b)obstructed, or interfered with, the exercise of the respondent’s functions under this Act.

(5)   The amount stated in a direction may not be more than—

(a)$10 000; or

(b)if another amount is prescribed by regulation—the prescribed amount.

(6)The registrar must, if asked by the complainant in whose favour a direction is made, give the complainant a copy of the direction certified by the registrar.

Dictionary

authorised person means a person appointed as an authorised person under section 114.

complainant, for part 12 (Complaints to ACAT about utilities)—see section 172.

complaint, for part 12 (Complaints to ACAT about utilities)—see section 172.

consumer, in relation to a utility service, means—

(a)     a customer for the service; or

(b)     an occupier of a customer’s premises to which the service is provided;

customer—see section 17 (Customers).

network facility means any part of the infrastructure of a network.

network operations, for part 7 (Network operations)—see section 103.

network protection notice—means a notice under section 125 (Network protection notices).

occupier, of premises—

(a)for this Act—means a person who has, or is entitled to, lawful possession or control of the premises (whether alone or together with 1 or more other people); or

(b)for part 10 (Enforcement)—see section 150.

ACT Civil and Administrative Tribunal Act 2008

6Objects 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; and

(d)to ensure that decisions of the tribunal are fair; and

(e)to enhance the quality of decision making under legislation; and

(f)to encourage, and bring about, compliance in decision making under legislation; and

(g)to encourage tribunal members to act in a way that promotes the collegiate nature of the tribunal; and

NoteUnless otherwise provided by this Act, the tribunal for the exercise of functions, other than functions in relation to applications, is made up of the presidential members (see s 93).

(h)to identify and bring to the Attorney-General’s attention systemic problems in relation to the operation of authorising laws.

36Applications to be heard

The tribunal must hear each application made to it unless the tribunal—

(a)refuses to hear the application, or part of the application, or dismisses it; or

(b)decides not to hold a hearing.

Note 1The tribunal may refuse to hear an application, or part of an application, or dismiss it under s 32 (2) (a) and (b) and decide not to hold a hearing under s 54.

Note 2The tribunal may make rules to facilitate the early resolution of matters arising in applications, including rules about referring an application to an agency that the tribunal considers is more appropriate to handle the application (see s 25 (1) (c)).

[Section 36 is as amended on 2 April 2014.  The amendments are nor relevant to the contention of the Respondent concerning jurisdiction.]

54Decisions without hearing

(1)   The tribunal may give each party to an application written notice to the effect that—

(a)the tribunal proposes to decide the application without holding a hearing; and

(b)if the party wishes to make representations about the proposal, the party must make the representations within—

(i)21 days after the day the notice is given; or

(ii)if the tribunal decides that a shorter period is required in all the circumstances of the application—the shorter period.

NoteThe rules may prescribe a longer period for making representations (see s 25 (1) (e) and (2)).

(2)   The tribunal may decide not to hold a hearing in relation to the application only if the tribunal—

(a)has given notice under subsection (1); and

(b)has taken into consideration any representations made by a party within the 21-day period or shorter period decided by the tribunal under subsection (1) (b); and

(c)is satisfied that—

(i)it is in the public interest not to hold a hearing; and

(ii)the tribunal has sufficient information to make an informed decision on the application.

NoteThe tribunal must observe natural justice and procedural fairness (see s 7).

56Other actions by tribunal

The tribunal may, by order—

(a)hear an application jointly with another application that arises from the same or similar facts; or

(b)make other orders with the consent of the parties to the application or as the tribunal considers necessary or convenient; or

Example

an order dismissing a proceeding with the consent of the parties to the proceeding

NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(c)amend or set aside a tribunal order if—

(i)the order was made after hearing an application in the absence of a party; or

(ii)the order is in error in relation to an amount or the name or address of a party, and the tribunal proposes to amend or set aside the order only to correct the error; or

(iii)extraordinary circumstances make it appropriate to amend or set aside the order; or

(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

Note 1The tribunal must observe natural justice and procedural fairness (see s 7).

Note 2A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including regulations (see Legislation Act, s 104).

ATTACHMENT B

IN THE ACT CIVIL &               )

ADMINISTRATIVE TRIBUNAL      )  

FILE NUMBER

EW 996 of 2013

IAN MCQUIRE

Applicant

ACTEW DISTRIBUTION LTD (ACN 073 025 224) AND JEMENA NETWORKS (ACT) PTY LTD (ACN 008 552 663) TRADING AS “ACTEWAGL DISTRIBUTION”
Respondent

Tribunal    :       Peter Sutherland, Senior Member

Date          :       12 February 2014

ORDERS

1. The relief sought by the Respondent in its Submission on Jurisdiction dated 6 February 2014 is denied.

2. The hearing on 26 February 2014 at 10:00am will proceed.

3. The Respondent’s Submission on Jurisdiction is to be taken as an Application for dismissal of the matter for want of jurisdiction.

4. The issue of jurisdiction will be heard by the Tribunal at the hearing on 26 February 2014.

.................................

Peter Sutherland
Senior Member

To:    Ian McQuire
         By email

To:    ActewAGL Distribution
         By email

To:    Michael Hope, ActewAGL
         By email

REASONS FOR ORDER

The Tribunal has received a document Submission on Jurisdiction filed by the Respondent Utility on 6 February 2014. In the document, the Respondent claims certain relief based on submissions that the Tribunal has no jurisdiction to hear the matter.

The Tribunal has decided to interpret the document as an Application for the matter to be dismissed without hearing under section 176(1)(a) or 176(1)(h) of the Utilities Act 2000, or in the alternative under s36(b) and s54 of the ACT Civil & Administrative Tribunal Act, or in the alternative under s56(d) of the ACT Civil & Administrative Tribunal Act.

The Tribunal does not accept that a mere claim of want of jurisdiction by a party should lead to a summary dismissal of the matter, other than in very special circumstances. The parties to a matter should have the opportunity to contest jurisdiction and support jurisdiction in a hearing. There are no special circumstances in this case which suggest that summary dismissal is appropriate.

Accordingly, the ‘relief’ sought by the Respondent is denied.

While the Respondent does not make a specific Application that the matter be dismissed for want of jurisdiction, the Tribunal will treat the Submission on Jurisdiction as an Application for dismissal of the matter for want of jurisdiction and will consider this Application in the hearing listed for 26 February 2014.

.................................

Peter Sutherland
Senior Member
12 February 2014