Mitchell v Icon Distribution Investments Ltd (ABN 83073025224) and Jemena Networks (ACT) Pty Ltd (ABN 24 008 552 663) Trading as ActewAGL Distribution (ABN 76670568688) (Energy and Water)

[2016] ACAT 157

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

MITCHELL v ICON DISTRIBUTION INVESTMENTS LTD (ABN 83073025224) AND JEMENA NETWORKS (ACT) PTY LTD (ABN 24 008 552 663) TRADING AS ACTEWAGL DISTRIBUTION (ABN 76670568688)
(Energy & Water) [2016] ACAT 157

EW 348/2016

Catchwords:              UTILITIES – electricity – electricity connection service - who is a consumer for Part 12 of the Utilities Act – customer – occupier – invitee – premises – builder is an occupier of premises - electrician entering premises to carry out work is an invitee of occupier - electrician is a consumer

Legislation cited:      Utilities Act 2000 ss 6, 17, 172, 176, Dictionary
ACT Civil and Administrative Tribunal Act 2008, s 26
National Energy Retail Law (ACT) Act 2012 s 5

Cases cited:                 AustralianSafeway Stores Pty Ltd v Zaluzna [1987] HCA 7
  Lipman v Clendinnen [1932] HCA 24

Tribunal:                   President L Crebbin

Date of Orders:           29 December 2016

Date of Reasons for Decision:         29 December 2016

ACT CIVIL & ADMINISTRATIVE TRIBUNAL             

EW 348/2016

BETWEEN:

PETER MITCHELL

Applicant

ICON DISTRIBUTION INVESTMENTS LTD (ABN 83073025224) AND JEMENA NETWORKS (ACT) PTY LTD (ABN 24 008 552 663) TRADING AS ACTEWAGL DISTRIBUTION (ABN 76670568688)

Respondent

TRIBUNAL:             President L Crebbin

DATE:                       29 December 2016

ORDERS

1. The respondent’s application for dismissal of the complaint under section 176(1)(a) of the Utilities Act 2000 is dismissed.

2. The complaint is referred back to the Registrar for directions and to list a final hearing.

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

President L Crebbin

REASONS FOR DECISION

1.Peter Mitchell made an application to the tribunal for determination of a complaint against ActewAGL Distribution (the respondent or ActewAGL) under the Utilities Act 2000 (the Utilities Act).  The respondent says that Mr Mitchell is not a person who can make a complaint under that Act.

2.The respondent asked that the tribunal dismiss Mr Mitchell’s application under section 176(1)(a) of the Utilities Act.[1] I held a hearing on 14 October 2016 to decide this application. The respondent’s representative provided detailed written submissions about the relevant statutory provisions and made oral submissions at the hearing. Mr Mitchell attended the hearing. He was unable to make submissions about the law but answered questions about the events that led to his application to the tribunal.

[1] This section says that the ACAT may dismiss a complaint if it is satisfied that Part 12 of the Utilities Act (that is the Part that allows complaints to be made) does not apply to the matter complained of.

3.Mr Mitchell is a tradesman who is dissatisfied with the respondent’s work on a particular job and with the way in which his complaint about that work was dealt with by the respondent.

4.He contends that he sustained loss because of the respondent’s failure to connect power to a building site when it was meant to do so, and he seeks a payment for that loss. He does not know about the technical requirements of the law or the legal relationships that were created when the events described below occurred. He was simply trying to get his work done using what he understood to be the usual business or trade practice.

5.The information set out in these reasons about the events that give rise to the complaint was provided by Mr Mitchell to the tribunal either in writing in his complaint application or orally at the hearing. The respondent did not contest the facts. They are relatively uncontroversial. I accept the information and to the extent that it is necessary to do so, make findings in accordance with the facts set out.  

What Happened?

6.Peter Mitchell is a licensed electrician. In 2015 he contracted with a builder to get power connected to a site at which a house was being built, and to do all the electrical work for the new house. He regularly gets work from this builder and so the job was important to him. Mr Mitchell does the work necessary to get an electricity connection in place and pays the associated costs. He later invoices the builder for the work he has done and the out-of-pocket expenses incurred.

7.On 30 November 2015 he filled out an ActewAGL form headed ‘Application for service – RFS electrical works request form new and existing installations’.  Mr Mitchell said this is the form that he uses when he wants to arrange for electricity to be connected to a building site, and as far as he knows, is the only form that can be used for this purpose.

8.The form is an important document for the purposes of this case and so it is described in some greater detail below.  

9.Mr Mitchell wrote the name of the builder’s business as the name of the “Customer or business name” under a heading ‘Work Site Address’ and put the work site address on the form. He had no idea who the builder was working for. He did not know if the builder had a contract with the owner of the land to build the house, or if the builder owned the land and was hoping to sell what was built. The site was in the inner north of Canberra and he understood that this was a ‘Knock Down Rebuild’ job.

10.Mr Mitchell ticked a box on the form asking for an expedited connection because, he said, that is what he usually does and otherwise the connection process takes too long. He completed the form to show that he was applying for a new connection to residential premises, that the site was ready for work to commence and that this was an underground service. He indicated that a 3 phase main meter was required and next to a heading ‘Additional comments from Contractor’ wrote “New temp. supply”.

11.He filled in his name and licence number in fields that required information about the “Contractor/Installer”, signed the form, put down his mobile phone number as the contact number and dated the form. He emailed the form to a generic email ActewAGL address in accordance with instructions at the top of the form. He said that this is how he usually completes this form and what he usually does with it.

12.Mr Mitchell paid the respondent a total of $2,232.90 for the new underground service connection and for a new meter on 2 December 2015. The receipt was provided to the tribunal.

13.Mr Mitchell said that the process is that once payment is made the job is scheduled, and a letter sent to the person who submitted the form setting out an appointment date and time for the work to be done. Mr Mitchell said that there is a standard that requires the work to be done within 20 business days. He did not know where the standard was found.

14.Mr Mitchell received a letter by email on 7 December 2016 from ActewAGL Supply Connection Services. The letter was addressed to “Peter” at the work site address. It was marked “Attention: CONTR Peter Mitchell”.  Presumably CONTR is short for “Contractor”. The letter said that an appointment had been booked “as per your completed request for service” for the work to be done at the site at 12:00:00 on 7 January 2016.  The letter did not say anything about a connection contract.

15.To prepare for the service Mr Mitchell had to go to the premises to lay conduit from the power pole to the meter box and provide a draw cable. He had to install a meter box and have it inspected by 7 January 2016. He did these things.

16.He expected that on 7 January 2016 a technician from ActewAGL Distribution would attend the site, pull the cable through the conduit from the pole to the meter box, install the new meter and connect to the overhead power line.

17.Building work was underway at the site with the builder using his own generator while waiting for the electricity connection.

18.On 8 January 2105 the builder called Mr Mitchell to say that the cable had been installed, but there was no meter and no connection.

19.Mr Mitchell telephoned ActewAGL and asked why the work hadn’t been done. He was told that the notes for the job showed that the work that he had to do for the meter to be installed was incomplete. He was told that he needed to finish what was required, pay another fee and that the work would have to be re-scheduled. Mr Mitchell protested. He said he had done what was required and had the work inspected on 6 January by ACT PLA. He asked that the technician be contacted to check what the problem was.

20.In later telephone calls he was told that the notes about the job were mistaken and it was accepted that his preparation work was fine. It was accepted that he had done the work that he had to do on time.  There was no explanation for why the connection was not completed on 7 January by the respondent’s technician. Except for what was said to him during the initial phone call, there was no suggestion that Mr Mitchell had done something wrong. The work still needed to be re-scheduled, but he did not have to pay another fee.

21.He said that at first he was told that the work would be done in the following week. When that didn’t happen he telephoned and was told that the job had been re-scheduled for 2 February 2016. It seems that the job had gone back to the bottom of the list of work to be done. He complained. He was told that the job was on a cancellation list.

22.Mr Mitchell told the tribunal he was concerned that his relationship with the builder would be jeopardised if he could not get the problem fixed. He was required to arrange the connection as part of his contract with the builder. There were penalties to be paid if the work ran late and he was concerned that he might not get future work from the builder if that occurred.

23.He owned his own petrol powered generator and so he took that to the site to use rather than the builder’s generator, until the connection was finalised. He kept the generator supplied with petrol.

24.He told the respondent that he would seek to be reimbursed for the cost of having to use his generator to power the building site. He was told that he could lodge a complaint with ActewAGL’s complaints section.

25.The meter installation and connection was completed on 3 February 2016.

26.Afterwards, Mr Mitchell sent ActewAGL an invoice for $1,782. He calculated this to be the cost of supplying and running his generator at the site for a total of 18 days (the number of business days between the original connection date and the date connection was completed) at a rate of $90 per day plus GST.

27.After some discussion with staff of the respondent, Mr Mitchell was sent a cheque for $300 and was told that because the generator was his own rather than one he had to hire, he should not charge ActewAGL for its use. Mr Mitchell refused the offer and returned the cheque with a letter asking for an explanation of what had happened. He received a letter in reply saying that $300 was all that would be paid and that he had until 30 June to accept the offer. He did not accept the offer.

28.Instead, on 20 July 2016 Mr Mitchell lodged a complaint application with the ACAT.  He did this he said, because the utility told him that the tribunal was the place he needed to approach to have his complaint dealt with.

29.In his application to the tribunal he explained the background set out above (which was not contested by the respondent) and wrote:

Saying that I did not have a direct loss, (the generator) is a tool of the trade and their process for handling the matter makes me infuriated. I was not at fault with the original connection attempted, I chased them repeatedly about when it was going to happen and why it hadn’t happened and advised them of my intention to run a generator and charge for doing so.

30.The tribunal sent the complaint to the respondent for a response. The response said that Mr Mitchell’s complaint was not within the jurisdiction of the tribunal under Part 12 of the Utilities Act. The respondent filed an application dated 21 September 2016 asking that the complaint be dismissed.

The Tribunal’s Jurisdiction

31.Section 172 is in Part 12 of the Utilities Act 2000. It authorises complaints to the ACAT in relation to specific things said to be done, or not done by a licensed utility. The respondent is one of those licensed utilities.

32.The section says:

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

33.The respondent says that Mr Mitchell is not a person covered by any of the items in Table 172 and that the tribunal therefore has no jurisdiction to deal with his complaint, at least under the Utilities Act.

34.I accept that his complaint is not about a capital contribution charge, or the use of his personal information, or about something relating to the utility’s network operations and so items 4 to 7 in Table 172 cannot apply to him.

35.Items 1 to 3 of Table 172 permit a consumer to make a complaint about contravention of certain contracts, or about a failure to provide a service, or about contravention of an industry code relating to utility service standards.

36.The issue is whether Mr Mitchell is a consumer. The respondent’s application contends that Mr Mitchell is not a consumer.

Who is a Consumer for the purposes of Part 12?

37.The term “consumer” is defined in the dictionary to the Utilities Act to mean either a customer or an occupier of a customer’s premises, and includes an invitee of the customer or of the occupier. This definition was in the original Act and has not been amended over the years. The Explanatory Memorandum for the Utilities Bill 2000 does not specifically mention it.

38.The definition is broad – it is not limited to people who have a contractual relationship with the utility to acquire services from the utility. It says:

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;

and includes an invitee of the customer or occupier.

39.Occupier is also defined. The relevant part of the definition is:

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); ...

40.There is no definition of the term ‘invitee’ in the Utilities Act. There is no reported decision considering its meaning in the context of the Table 172 of the Utilities Act from the tribunal or the Supreme Court. The term is not mentioned in the explanatory memorandum for the Utilities Bill 2000.

41.The Macquarie Dictionary defines an invitee as a person entering another’s premises by invitation.

42.In a legal context, it is a term familiar in the law of torts, particularly in relation to the liability of an occupier of land to people entering the land. Before the High Court’s landmark decision in Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7 it was necessary to consider how an entrant on to land should be classified for the purpose of determining the duty owed to that person by an occupier. An invitee was a person invited on to land - either expressly or by inference - by someone in possession of it. The concept particularly applied to a person who entered property for business purposes and was distinguishable from a licensee who entered land with consent, but for their own or social purposes. [2]

[2]    An invitee enters not merely with the consent but upon the invitation of the occupier, express or implied, for a purpose in which the occupier himself has some concern, a pecuniary, material, or business interest. Lipman v Clendinnen [1932] HCA 24 per Dixon J

43.I do not suggest that the term is used in this way in the Utilities Act. The Act commenced well after the Safeway decision made the characterisation of entrants to land as trespassers, licensees or invitees irrelevant. I am satisfied that the ordinary meaning of the word - a person entering another’s premises by invitation - is intended. I note however that I do not believe that an express or specific invitation is required for a person to be an invitee. Invitation can be implied from the circumstances relevant to the person’s presence on the premises. I note also that the term is not limited to natural persons.

44.The definition of premises as including land and place, is also relevant.

Is Mr Mitchell a Consumer?

45.In brief summary ActewAGL contends that Mr Mitchell is not a consumer because he was not the customer for the service, nor an occupier of the premises for the service, nor an invitee of either.

46.The term utility service in the context of electricity is defined in section 6 of the Utilities Act. In this case the service was an electricity connection service.[3]

Is Mr Mitchell the customer?

[3] Section 6 (b)

47.Customer is defined in section 17 of the Utilities Act as a person for whom a utility service (here the electricity connection service) is provided under a customer contract, or a person who has applied for a service to be provided under a customer contract.

48.The term customer contract is defined in the Dictionary to the Utilities Act. The relevant contract is a customer connection contract. For a customer connection contract, the definition calls on other definitions in the National Energy Retail Law. Ultimately, the definition leads to section 5 of the National Energy Retail Law (NERL).

49.The NERL applies in the ACT by virtue of the National Energy Retail Law (ACT) Act 2012. In short, a customer is a person to whom energy is sold for the premises, or who proposes to purchase energy for the premises from a retailer.

50.After considering the web of relevant definitions, I am satisfied that Mr Mitchell was not a customer. He is clearly not a customer as defined in section 5 of the NERL.

51.I do not think that he can be regarded as a customer in accordance with section 17(1)(b) of the Utilities Act only because he applied for a connection service by completing the form referred to in paragraph 7. I am not satisfied that when he completed the form he understood that he was acting as the retail customer’s agent and was applying for a connection service to be provided to the customer under an electricity connection contract on behalf of the customer, with all the rights and obligations that adhere to such a contract.

52.The respondent emphasised that the completion of the form establishes or leads to the formation of a customer connection contract. That is apparent once the model standing offer is read. From this perspective, the form’s primary purpose is to establish a customer connection contract on the model standing terms[4] or to invite ActewAGL to issue a connection offer to the customer so that a customer connection contract can be accepted.[5] Accepting that is correct, the form is poorly designed.

[4] This is the effect of ticking the box requesting an expedited connection

[5] This is the effect of ticking the box for not requesting an expedited connection

53.It was clear during the hearing that Mr Mitchell did not realise that this was the effect of completing the form. He did not consider himself to be an agent for the customer. He didn’t know really who the customer was. Was it the builder who was purchasing electricity for the duration of the construction, or the owner? He did not concern himself with the answer to that question. It was not his intention to enter into a contract on behalf of some other person who proposed to purchase electricity from a retailer for the premises.

54.He was, from his perspective, simply using this form to book an appointment for connection work to be done so that he could, in turn, do the work that he had contracted with the builder to do.

55.He said that as far as he knew, this is the only form that can be used for this purpose. He completed a hard copy form. The form’s heading says “Application for service - RFS electrical works request form new and existing installations” (emphasis added). The content of the form is consistent with it being a form to be used to request that electrical work be undertaken.

56.The form does not have a field that requires identification of the name of the customer who is entering into the connection contract, or of their agent; or fields that require the address or contact details of the customer. In fact, there is no field on the form that clearly identifies the person completing the form.

57.Small print at the top and bottom of the form refers to terms and conditions, and the model standing offer for connection services, but the phrase “connection contract” does not appear anywhere other than in a brief reference on the back of the form.

58.Under the heading “Work Site Address” there is a space to complete the “Customer or Business name”. The inclusion of “Business name” as an alternative is confusing and suggests that the information sought in this section does not need to be about the customer. There is no other reference to the customer on the form.

59.Most of the form seeks technical information about the work requested. At the bottom of the form there are fields for completion of the name of the “Contractor/ Installer” and for the licence number of that person.

60.There is a field for a signature immediately below the name of the contractor. It is set out in such a way that it looks like the contractor or installer is required to sign it - that was how Mr Mitchell understood it. There is nothing to indicate that the signature required is that of the customer, or an agent of the customer. It is true that below the signature block in small print are the words “By signing this I acknowledge and agree to the terms and conditions overleaf and warrant that I am authorised to accept those terms and conditions on behalf of the connection applicant”, but given the rest of the content of the form and the heading of the form, these words lack the clarity one would normally seek for the formation of a contract.  

61.The information required by the form does not readily allow identification of the contracting party for the customer connection contract that is automatically created when an expedited connection is requested.

62.Section 26 of the ACT Civil and Administrative Tribunal Act 2008 provides that the tribunal may inform itself in any way it considers appropriate in the circumstances.

63.To better understand this form and its use I viewed the on-line version of the form. It has the same heading as the hard copy form. The ambiguity is, if anything, greater. On–line, the question “What is this form?” is answered “This form is used for requesting new, temporary or permanent electrical works to your electrical service connection to our Network.”  The answer doesn’t indicate that the form is used to establish a retail customer connection contract.

64.There is no information about who should complete the form.

65.It contains the same “tick a box” selection for an expedited connection and a link to the respondent’s model standing offer but does not have a field requiring that the person completing the form identify the “customer” (or even themselves) in a way that matches the definition of customer under the NERL. It is not possible to identify the contracting parties using this form.

66.The only reference to a customer comes under the section “Work Site Details” where information is requested about the “Customer or business name”.

67.At the end of the on-line form is a section headed “Declaration”. Immediately underneath this heading there are fields requiring information about the Contractor or Installer including their name, postal address and licence number. There are fields for a contact phone number and email address which look like they are meant to relate to the contractor/installer. The last field is a box that has to be checked with the words “I declare the information being provided to ActewAGL is correct”. The way in which this is set out gives the appearance that the declaration has to be made by the installer as the installer, rather than by the customer, or by the installer acting as an agent of the customer.

68.Mr Mitchell said that the process he followed is the usual process followed by an electrician wanting to arrange the work needed for power to be connected to a site. If that is the case, the process is problematic. It is ambiguous and creates uncertainty.

69.The respondent’s representative was uncertain if the design of the form is prescribed by the NERL or related statutory instruments. That seems unlikely to be the case. The design of both the hard copy and on-line form should be urgently reviewed and consideration given to making its purpose and effect clearer and to at least more clearly identify the name of the contracting party, to make it clear that requesting an expedited connection creates a connection contract between the retail customer and ActewAGL and to identify whether the person completing the form is the customer, or a person acting on behalf of the customer.

Was Mr Mitchell the occupier?

70.Mr Mitchell was clearly not an occupier of the premises. He did not suggest that he had lawful possession or control of the premises.

71.Although there was no direct evidence in this case, based on my experience as a tribunal member deciding civil disputes, administrative review applications, and applications for occupational discipline relating to building works and the construction industry, I take official notice that the standard industry practice is that builders have lawful control of premises during the course of construction of a building. In this case, the builder is properly considered to be the occupier of the premises at the relevant time. If the builder was not the owner of the land, the owner may also have been an occupier, but the definition of occupier in the Utilities Act contemplates that there may be more than one occupier at a time.

Is Mr Mitchell an invitee of the occupier of the premises?

72.The respondent says that Mr Mitchell is not an invitee.

73.At paragraph 30(b) of its written submissions the respondent says “The Applicant is not occupying or living at the premises nor is the Applicant receiving the benefit of consuming electricity at the premises as an invitee of the customer or occupier”. This statement is undoubtedly true but it imports limits on the terms “premises” and “invitee” that are not found in the Utilities Act.

74.“Premises” includes land - it is not restricted to a place or building on land.

75.There is no requirement under the Act that an invitee consume electricity. Mr Mitchell contracted with the builder to provide services on the premises. He had to enter the premises in order to carry out the work he was contracted to do. His entry was at the invitation of, and with the implied consent of, the builder. He was an invitee, in the ordinary meaning of that word, of the occupier.  It is also probable that he entered the premises with the implied consent and on the implied invitation of the owner of the premises if that was someone other than the builder.

76.I find that Mr Mitchell was an invitee of the occupier and consequently, he is a consumer.

Is Mr Mitchell a consumer for the purposes of items 1, 2 or 3 of Table 172?

77.The respondent’s written and oral submissions concerned only the issue of whether Mr Mitchell is a consumer and did not traverse the further issues of whether if so, he is affected by a contravention for the purposes of item 1 or 2 of Table 172. The submissions simply asserted that he could not be because he is not a consumer.

78.I note that a copy of the model standing offer for basic connection services effective from 1 July 2016 was attached to the respondent’s written submissions. Clause 4 and attachment 2 deal with the timeframes for commencement and completion of the connection service work. The timeframe for basic connection work for 1 to 4 connections is “Within 20 business days of you notifying us of your acceptance of our connection offer”.  Clause 4 has a number of conditions and qualifications.

79.Because the hearing was restricted to a narrow issue of jurisdiction, I cannot decide now whether or how Clause 4 is relevant to Mr Mitchell’s complaint. Nor can I decide whether there is a relevant industry code that has been contravened or whether the circumstances of this matter can constitute a failure to provide a utility service that was likely to cause substantial hardship to Mr Mitchell for the purposes of item 3 of Table 172. I cannot decide whether any and if so what order should be made under section 178 (ACAT decisions) or section 181 (Payment for loss or damage) of the Utilities Act. The respondent’s representative reminded me during the course of the hearing that I could not stray into consideration of these issues.

80.To ensure procedural fairness the application will need to be re-listed for the hearing of submissions and where relevant, the taking of evidence about the issues. It is not appropriate for that to be done in a piecemeal fashion. The parties should prepare on the basis that all issues may need to be addressed in order to conclude the consideration of Mr Mitchell’s complaint. The application is referred back to the registry to arrange a further listing.

………………………………..

President L Crebbin

HEARING DETAILS

FILE NUMBER:	EW 348/2016
PARTIES, APPLICANT:	Peter Mitchell
PARTIES, RESPONDENT:	ICON DISTRIBUTION INVESTMENTS LTD (ABN 83073025224) AND JEMENA NETWORKS (ACT) PTY LTD (ABN 24 008 552 663) TRADING AS ACTEWAGL DISTRIBUTION (ABN 76670568688)
SOLICITORS FOR APPLICANT	N/A
SOLICITORS FOR RESPONDENT	In house representative
TRIBUNAL MEMBERS:	President L Crebbin
DATES OF HEARING:	14 October 2016