Nathan Heberley v ActewAGL Retail & Evoenergy (Energy and Water)
[2022] ACAT 66
•13 July 2022
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
NATHAN HEBERLEY v ACTEWAGL RETAIL & EVOENERGY (Energy and Water) [2022] ACAT 66
EW 244/2021
Catchwords: ENERGY AND WATER – complaint against energy retailer and network operator/distributor (utilities) – high ‘catch-up’ bill – whether utilities were compliant with legal and contractual requirements – energy retailer not compliant with the Utilities (Consumer Protection Code) Determination 2020 and the National Energy Retail Rules
Legislation cited: Utilities Act2000 s 172, 178, 181
Subordinate
Legislation cited: National Energy Retail Rules cl 25 r 31
Utilities (Consumer Protection Code) Determination 2020 cl 5, 8, 8.2, 13, 13.5, 13.10
List of
Texts/Papers cited: Ongoing Market Retail Contract Terms for Small Customers in ACT and NSW cl 23
Tribunal:Senior Member L Beacroft
Date of Orders: 13 July 2022
Date of Reasons for Decision: 13 July 2022
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) EW 244/2021
BETWEEN:
NATHAN HEBERLEY
Applicant
AND:
ICON RETAIL INVESTMENTS LTD (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)
First Respondent
AND
JEMENA NETWORKS (ACT) PTY LTD(ABN 24 008 552 663) AND ICON DISTRIBUTION INVESTMENTS LTD (ABN 83 073 025 224) TRADING AS EVOENERGY (ABN 76 670 568 688)
Second Respondent
TRIBUNAL:Senior Member L Beacroft
DATE:13 July 2022
ORDER
The Tribunal makes the following findings:
(a)The first respondent did not email the letter dated 10 December 2020 to the applicant about the applicant’s meter being inaccessible which was unfair given the circumstances of this case and contrary to clause 5(1) Utilities (Consumer Protection Code) Determination 2020.
(b)The first respondent did not inform the applicant that the credit for waived gas usage costs from May to June 2020 was in part an overcharge despite becoming aware of this which is not compliant given the circumstance of this case with rule 31 of the National Energy Retail Rules or its contractual obligations
The Tribunal orders that:
The matter is adjourned for a further hearing about what order/s should be made given the findings above at 23 September 2022 at 11am.
The applicant is to file and serve any further submissions or evidence relevant to the hearing by 5pm Friday 12 August 2022
The respondents are to file and serve any further submissions or evidence relevant to the hearing by 5pm Friday 9 September 2022
………………………………..
Senior Member L Beacroft
REASONS FOR DECISION
Background
Mr Nathan Heberley (the applicant) complained that laws and related requirements had not been met by his energy retailer, ACTEWAGL Retail (first respondent), and also not met by the relevant network operator/energy distributor Evoenergy (second respondent). His main claim was that he became liable for a significant sum of money for gas usage that he was notified of well after the gas was used by him, when he should have had earlier notice of his gas usage. If he had had earlier notice he contended that he could have changed his energy system and behaviours earlier, thereby reducing or avoiding the high bill for gas usage. He claimed damages for losses due to various non-compliance by the respondents that led to a delay in him replacing the gas system with another energy system and a loss of work earnings, being $4,428.42 in total.[1] He also sought a range of other orders to “protect customers” generally, and in relation to his individual matter including an apology.[2]
[1] Pages 12-13, applicant’s submission dated 2 September 2021
[2] Page 14, applicant’s submission dated 2 September 2021
The respondents contended that they had complied with all relevant laws and requirements and denied his claim for compensation and other orders.
The applicant’s relevant billing and meter reading history is summarised as follows. The energy retailer (first respondent) established an account for the applicant on 2 June 2020.[3] It was provided meter reading data by the network operator (second respondent) and issued the applicant with bills based on these meter readings, the first three bills being of relevance here: [4]
(a)The first respondent issued the applicant’s first bill for his gas account, dated 12/9/2020, in the sum of $579.29, for supply from 5/6/2020 to 9/9/2020, for usage charges based on a meter reading (reading) of 1756 (actual reading on 27/5/2020) and 2169 (estimated reading on 9/9/2020 used following an actual reading of 3670 was found to be invalid by second respondent ), for the period 5/6/2020 to 9/9/2020;
(b)The first respondent issued the applicant’s second bill for his gas account, dated 11/12/2020, in the sum of $222.57, for supply from 10/9/2020 to 10/12/2020, for gas usage based on a reading of 2169 (estimated reading to 9/9/2020 as per prior bill) and 2292 (further estimated reading on 10/12/2020 due to the meter being inaccessible), for period 10/9/2020 to 10/12/2020;
(c)The first respondent issued the applicant’s third bill for his gas account, dated 30/3/2021, in the sum of $2,482.68 that included $2,181.40 for gas usage, for supply from 11/12/2020 to 16/3/2021, for gas usage based on a reading of 2292 (estimated reading to 10/12/2020 as per prior bill) and 4372 (actual reading on 16/3/2021), for the period 11/12/202 to 16/3/2021.
[3] First respondent’s submission dated 22 September 2021, [2-3, 39-42] and related annexures being voice recording dated 2 February 2020 (Annexure A), ‘Welcome Letter’ dated 10 June 2022 (Annexure B) and ‘Ongoing Market Retail Contract Terms for Small Customers in the ACT and NSW’ [Annexure L]
[4] Email from the first respondent to applicant dated 23 April 2021 setting out meter reading information provided by the second respondent; First respondent submission, dated 22 September 2021, Annexures C, F and G
The applicant made a complaint to the first respondent after he received the high bill dated 30/3/2021. During the complaint process the first respondent “on 28 April 2021 …applied a credit in the amount of $246.77 …to waive 264 units of gas for the period May to June [2020]” and it also “on 23/4/2021 applied a goodwill credit in the amount of $50” for any poor customer experience.[5] The matter was referred to the Tribunal for determination following the conclusion of a complaint process that did not resolve the matter.
[5] Email from first respondent to applicant dated 23 April 2021 and first respondents account Notes, Annexures to applicant’s submission dated 2 September 2021; first respondent submission, [12-13] dated 22 September 2022 and email from first respondent dated 24 May 2022 confirming that there was an error in [13] and that ‘2021’ should be ‘2020’
The ACT Civil and Administrative Tribunal (ACAT) has jurisdiction to determine matters set out in section 172, Part 12 of the Utilities Act2000. While the respondents raised a query about jurisdiction early in the proceedings, this was not pursued in their written submissions or at hearing, and on this basis the Tribunal regards jurisdiction as not contested. In any case, the Tribunal finds that the nature of the matter is such that it is within jurisdiction under Items 1 and 2, Table 172, Utilities Act2000: it is about a contravention of a customer contract made under the National Energy Retail Law (ACT) by a utility, and it is also about a contravention of an industry code or codes dealing with a utility service standard by a utility (in this case, the relevant Codes include the Utilities (Consumer Protection Code) Determination 2020 (Consumer Protection Code). Where a contravention is found to have occurred, ACAT has various powers including to issue directions to the utility to remedy the contravention, and to order the payment of damages for loss or damages related to the contravention (sections 178, 181, Part 12). The applicant seeks such orders in this case.
Summary of applicant’s contentions and the respondents’ responses
The matter was complex in that firstly, the applicant raised many concerns, and secondly, the relevant law and requirements that applied are numerous and complex. What follows is a high-level outline of the applicant’s alleged contraventions by the respondent/s as set out in his submissions, followed by a similarly high-level outline of responses by the respondent/s, with key parts of submissions by the parties referenced as necessary.
Issue 1
The applicant claimed that the respondents were “required to provide advice about ‘No Access’ using the agreed communication medium” and they did not. He claimed that in failing to do so they contravened clause 8, Utilities (Consumer Protection Code) Determination 2020 (Consumer Protection Code) which sets out requirements for effective notice to customers or consumers including deemed delivery.[6] He reiterated at the hearing that he had notified the first respondent that he wanted all communications by email and they did not email the letter about ‘No Access” which he said was their “mistake”.[7] The applicant submitted screen shots of his profile and communications preferences held by the first respondent where he had indicated that he preferred to be emailed and had provided his email.[8]
[6] Page 5, applicant’s submission dated 2 September 2021
[7] Transcript of hearing 1 November 2022, page 10
[8] Page 5, Evidence ID 5 and 6, applicant’s submission dated 2 September 2021
Both respondents emphasised that it was the applicant’s duty to allow safe and unhindered access to the meter under their contracts with the applicant and that he had not done so, and that they had not breached any laws or requirements.
The first respondent contended that it promptly sent a letter dated 10 December 2020 to the applicant’s address, notifying the applicant of the meter access issue after it was notified by the second respondent of the meter access issue, and that this was in full compliance with all laws and other requirements.[9] The first respondent’s witness, C Rukavina, ‘Billing and Data Manager’, stated in her written statement dated 24 September 2022 that “where an estimate is due to an access issue, our system triggers a letter to the customer advising of the access issue…[they] are currently sent by post to customers, ACTEWAGL are looking at implementing the ability for these letters to be sent via customer preferred method”.[10]
[9] Paragraph 8 and Annexure E, first respondent’s submission, dated 22 September 2021
[10] Statement of C Rukavina, dated 21 September 2021 [5]
The second respondent contended that it was under no obligation to provide the applicant with a ‘No Access’ notice. It stated that clause 8 of the Consumer Protection Code only applied to notices expressly required under the Consumer Protection Code and a ‘No Access’ notification is not one of those, that it had provided a photo during the proceedings of the meter showing barriers to accessing it taken on 10 September 2020, that it had notified the first respondent that the meter was obstructed and provided the first respondent with an estimate of gas usage. On this basis it contended that it had complied fully with the laws and other requirements that applied to it.[11]
Issue 2
[11] Paragraphs 71-72, second respondent submission, dated 22 September 2021
The applicant contended that the emailed bills did not “clearly state a bill is based on an estimated reading” as required under clause 25 of the National Energy Retail Rules (NERR) in that the text in the email did not state that the bill was based on an estimated reading. He also contended that there should have been an explanation about why an estimate was used.[12] The applicant stated that for “time poor customers” this format encouraged them to accept the email as the bill and to pay using the button in the email, and to miss an opportunity to open the attached pdf bill and thereby find out that it was based on an estimation.[13] The first respondent contended that the relevant document that must comply with clause 25 of the NERR is the actual bill, not the covering email, and that all bills did fully comply.[14] The second respondent contended that it is not responsible for billing the applicant so this contention is not relevant to it.[15]
Issue 3
[12] Transcript of hearing 1 November 2021, page 17
[13] Page 5-6, applicant’s submission dated 2 September 2021
[14] Paragraphs 5-7, 9-10, first respondent submission dated 22 September 2021
[15] Paragraph 74, second respondent submission dated 22 September 2021
The applicant contended that the bill did not contain comparative consumption data and is inconsistent with clause 13.5 2(l) of the Consumer Protection Code.[16] The applicant’s bills dated 12/9/2020, 11/12/2020, and 30/3/2021 each contain a graph titled “Your gas usage”, with the timeframe on the graph starting on September 2020 when the first bill was issued to the applicant, and where an estimate of usage was the basis of a bill then the graph plots the estimate. The bills do not contain a graph titled “Compare your usage to other households in your area”, like that found on the sample electricity bill provided by the applicant.[17]
[16] Page 6, applicant’s submission dated 2 September 2021
[17] Annexure, applicant’s submission dated 2 September 2021
The first respondent was the respondent responsible for billing and contended that the bills were compliant with the law and requirements and that clause 13 of the Consumer Protection Code did not apply to it.[18] It also contended that National Gas Laws and Rules require it to keep confidential gas supply information for a person, it is not allowed under the latter laws and rules to provide comparative data to the applicant in the bill or in another way about the prior occupant of the applicant’s property, and therefore the comparative data is only that available for the applicant which was nil or minimal, with two readings being estimates, for the three bills relevant here.[19]
Issue 4
[18] Paragraphs 21-24, first respondent submission dated 22 September 2021
[19] Paragraphs 33-37, first respondent submission dated 22 September 2021
The applicant contended that the bill dated 30 March 2021 did not list separately the amount to be recovered due to the underestimation of gas usage, or provide an explanation, and was not compliant with clause 13.10(2) of the Consumer Protection Code.[20] He stated that this led to a greater level of bill shock, and caused him to investigate whether there was a gas leak (which there was not) including paying for a plumber to do a check for leaks.
[20] Page 6, applicant’s submission dated 2 September 2021
Regarding the information provided in the ‘catch-up’ bill, the first respondent contended that it had complied fully with relevant requirements and laws and that clause 13 of the Consumer Protection Code did not apply to it.[21] It stated that the March bill was properly issued after a “manual review”, which showed that the two estimates used in the two prior bills were less than actual gas usage and that the March bill was a necessary “back bill or catch-up bill” which included “charges for actual gas consumption not included on previous bills”.[22] When a customer has been undercharged, the first respondent stated that it can recover the amount up to a certain time prior to the customer being notified which it has done in this case.[23] The March bill required payment by 19 April 2021 and there was no overdue amount stated to be due.
Issue 5
[21] Paragraphs 21-24, respondent 1 submission dated 22 September 2021
[22] Paragraph 11, first respondent submission dated 22 September 2021
[23] Paragraph 32, second respondent submission dated 22 September 2021
The applicant contended that the second respondent contravened various requirements when it provided the first respondent with an estimate that was then used in the September 2020 bill. The applicant contended that the second respondent had an actual reading that should have been provided to the first respondent, and that this would have enabled the first respondent to reasonably and reliably base the September 2020 bill on an actual meter reading and therefore meet relevant requirements. The second respondent contended that it complied fully with the law and requirements. It set out in detail the basis in law for its contention that the actual reading in September 2020 failed the required validation requirements including the “high/low tolerance test” and that it was therefore required to provide an estimate to the first respondent .[24] Mr Bruce Anthony Hansen, Group Manager, Gas Networks, Evoenergy (second respondent), submitted a statement setting out the requirements relevant to his issue and how the second respondent had complied with these.[25] Also Mr Marc Flynn, Revenue Data Specialist, Jemena, on behalf of the second respondent, submitted a statement, gave oral evidence and was asked questions by the applicant at the hearing, and in this manner he provided considerable detail about relevant requirements and what had occurred in the applicant’s case.[26]
Issue 6
[24] Paragraphs 77-94, second respondent submission dated 22 September 2021
[25] Statement of B A Hansen, dated 22 September 2022
[26] Statement of Marc Flynn, dated 22 September 2021 and transcript of hearing 1 November 2021, pages 23-42
The applicant contended that the respondents had not acted “ethically, fairly and honestly” in all dealings with him, contrary to clause 5(1) of the Consumer Protection Code.[27] He contended that his various contentions set out above and below demonstrate a pattern of unfairness by the respondents, and that their “approach aims to decrease their risk exposure while anticipating that the applicant will drop their complaint due to the effort required to see it through”.[28]
[27] Page 10-12, applicant’s submission dated 2 September 2021
[28] Page 12, applicant’s submission dated 2 September 2021
The respondents agreed that there may be a possibility of unfairness even if the law and requirements were met by them. But they contended that in this case they complied with laws and requirements which are established in part to safeguard consumers and that there was no unfairness to the applicant.[29]
[29] Transcript of hearing 1 November 2021, pages 11-13
In addition to his contentions set out above, in relation to unfairness and honesty the applicant in summary contended as follows. By not disclosing to him indicators of unusually high gas consumption until March 2021, the respondents unfairly caused him to suffer significant bill shock. They also unfairly prevented him from investigating earlier the possibility of a gas leak. By not providing an explanation for the high March 2021 bill sooner than they did, this required him to unnecessarily pay for a check of his gas appliances by Tuggeranong Plumbing on 31 March 2021 at a cost of $500.50.[30] Further, he contended that the first respondent’s responses in calls between it and him in March 2021 were unfair in that it was suggested to him that the bill was an error and/or there was a leak.[31] He stated that it was unfairly left to him to sort out the March 2021 high bill, including investigating whether there was a gas leak, and then going through a time-consuming and complex process including the tribunal proceedings to find out why the bill was so high.
[30] Tax invoice dated 31 March 3021, Tuggeranong Plumbing, annexure to applicant’s submission dated 2 September 2021
[31] Voice recording of calls on 30 March 2021 and 31 March 2021 provided by the first respondent; First respondent’s account notes, annexures to applicant’s submission dated 2 September 2021
Further, in April 2021 he contended that a credit he received from the first respondent was dishonestly characterised. The applicant was given a credit for waived gas usage between May to June 2020 of $246.77 which it stated was “in order to achieve a favourable outcome, while ACTEWAGL believe the charges and readings to be correct” and as a “good will gesture”.[32] The applicant contended this was dishonest because the credit was required to be made by the first respondent due to it being for overcharging in that it was for gas usage for a period of time prior to when his gas supply commenced on 5 June 2020.[33]
[32] Email from the first respondent to applicant dated 23 April 2021 and first respondent’s account notes, annexures to applicant’s submission dated 2 September 2021
[33] Page 11, applicant’s submission dated 2 September 2021
In summary, the respondents’ contentions in relation to the applicant’s claim that they acted unfairly or dishonestly was that the laws and requirements they are subject to take into account consumer interests and rights. In complying with them as they contended that they did in this case, they contended that they met requirements of ethical, fair and honest behaviour. In particular, the respondents contended that the applicant was always given the appropriate information in the bills, and in other written and oral communications by them.
Findings
Issue 1
Regarding issue 1, the Tribunal finds that the second respondent complied with the relevant law and requirements. However, the Tribunal finds that on this issue the first respondent did not act “fairly” as required under clause 5(1) of the Consumer Protection Code in that it failed to email the letter dated 10 December 2020 to the applicant.
The evidence is that the applicant was invited by the first respondent on its website to state his preferred manner of communication, and in good faith he recorded it with the first respondent, being by email. There was no warning on the relevant webpage to state that the first respondent would not use the recorded communication method for some communications.
It might be argued that the letter was a ‘notice’ required under the Consumer Protection Code and therefore mailing it or delivering it to the applicant’s premises meets all requirements. The Tribunal notes that the deemed delivery provision for ‘notices’ under the latter Code (clause 8.2) (which is mirrored to some extent in clauses of the contracts between the applicant and respondents for e.g., clause 23 of the Ongoing Market Retail Contract[34]) allows for such a finding. However, the Tribunal agrees with the contention of the second respondent (a contention which was not contested by the first respondent) that the letter was not a notice under the Consumer Protection Code,[35] and that clause 8 therefore does not apply to the letter being considered here. It might be also argued that the letter was a ‘notice’ under clause 23 of the Ongoing Market Retail Contract between the applicant and the first respondent and the deemed delivery clause 23(b) applies; however, the argument against this is that there is no reference in that contract to the letter being such a ‘Notice’ and the Tribunal finds that the clause does not apply to it. It might also be argued that the letter was not a requirement and was a courtesy communication and that the first respondent therefore cannot be found to be unfair in not sending it by email. However, the Tribunal finds that in deciding to provide the letter, the first respondent should have used the applicant’s preferred communication being by email, even if it also used post or hand delivery.
[34] Annexure L, first respondent submission dated 22 September 2021
[35] Paragraphs 71-72, second respondent’s submission, dated 22 September 2021
The Tribunal finds that it was reasonable for the applicant to assume that a communication from the first respondent such as the letter dated 10 December 2020 would be emailed to him, even if other methods were also used. However, the letter was posted, but not emailed by the first respondent to the applicant. Consequently, the applicant missed an opportunity on 10 December 2020 to be advised that his meter was unable to be read, that an estimate was being used in the relevant bill, and that he could follow up by sending in a photo of the meter reading.
The Tribunal accepts that in not enabling access to the meter the applicant was in breach of his contractual obligations to each of them, as both the respondents contended. However, this does not remove the requirement for the first respondent to use the applicant’s preferred communication mode, being by email, to communicate with him about his meter not being accessible.
Process is a critical element of fairness. The Tribunal finds that it was unfair to invite the applicant to advise and to register his preferred communication and then not use it, and in a context where there was no warning that this might occur. The unfairness here is due to the first respondent failing to use the process of communication which it had in effect agreed with the applicant.
Otherwise than set out in this section, the Tribunal dismisses the applicant’s contentions about issue 1.
Issue 2
The Tribunal finds that the first respondent was fully compliant with the law and requirements in that it clearly stated on the bills when an estimated reading had been used. The Tribunal does not accept that the covering emails for the bills had to also state that estimated readings were used and does accept that covering emails will have less information than what is on the bills. It is unfortunate that the applicant did not open the attachments, being the bills, but this does not change the latter finding. The Tribunal finds that the second respondent complied with the relevant law and requirements for the reasons it submitted. The Tribunal dismisses the applicant’s contentions about issue 2.
Issue 3
The Tribunal accepts that clause 13 of the Consumer Protection Code does not apply to the respondents. The Tribunal finds that the first respondent was fully compliant with the law and requirements in that it met the applicable requirements to provide comparative consumption data. The Tribunal accepts that the law does not allow for gas usage data of prior occupants of the property to be provided in the applicant’s bill, and that the bill did not need to include data or a graph of comparative usage data with other households like that found on electricity bills to be compliant. The Tribunal finds that the second respondent complied with the relevant law and requirements for the reasons it submitted. The Tribunal dismisses the applicant’s contentions about issue 3.
Issue 4
Regarding issue 4 and the compliance or otherwise of the ‘catch-up’ bill with requirements and laws, the Tribunal finds that the first respondent complied fully with relevant requirements and laws. In particular, the Tribunal finds that clause 13 of the Consumer Protection Code did not apply to it.[36] On this basis, the Tribunal dismisses the applicant’s claims against the respondents in relation to issue 4.
Issue 5
[36] Paragraphs 21-24, first respondents submission dated 22 September 2021; Schedule 3, Consumer Protection Code
The Tribunal finds that the second respondent complied with the law and requirements when it provided the first respondent with estimated readings for bills. The Tribunal finds that the first respondent complied with the relevant law and requirements. The Tribunal finds that both of the respondent’s evidence on this issue was detailed, coherent, and consistent with the law and related requirements, and the Tribunal accepts that evidence. The Tribunal dismisses the applicant’s contentions about issue 5.
Issue 6
The Tribunal finds that there was an instance of the first respondent not acting as required under the Consumer Protection Code, as set out in issue 1 above.
The Tribunal also considered if the characterising of the waived gas usage costs from May to June 2020 as a good will gesture by the first respondent complied with the NERR and its contractual obligations, and also if wrongly characterised whether it acted “ethically” as required under clause 5(1) of the Consumer Protection Code.
In correspondence about the applicant’s claim dated 9 June 2021 the first respondent noted that on “on 28 April 2021 a credit of $246.77 was applied to waive 204 units between May and June”.[37] In an email from the first respondent to the applicant dated 23 April 2021,the first respondent described the credit due to the waiver of gas usage as an act to “reach a favourable outcome”.[38] In a statement of account provided to the applicant by the first respondent the latter credit was described as a “Goodwill Payment Gas ACT”.[39] In the first respondents ‘Account Notes’, the credit about the waiver of the gas usage was described as a “gesture of good will”.[40]
[37] Email correspondence about the waiving of the gas units and meter reading dates, dated 9 June 2021, Evidence attached to applicant’s submission dated 2 September 2021
[38] Email correspondence about the waiving of the gas units and meter reading dates, dated 9 June 2021, evidence attached to applicant’s submission dated 2 September 2021
[39] Statement of account dated 10 August 2021, evidence provided by respondent 1
[40] The first respondent’s account notes, evidence attached to applicant’s submission dated 2 September 2021
However, the Tribunal finds that the credit relates to some overcharging. The applicant’s first bill dated 12/9/2020 showed gas supply charges started from 5/6/2020 and included the charge of $246.77 (which was subsequently credited) for gas usage from actual meter reads of 1756 to 1960. The ‘Account Notes’ contain a note dated 31/3/2021 which states that it was explained to the applicant that the account start date reading on 5/6/2020 was calculated by a ‘work back’ from the actual reading taken on 15/06/2020, and that he was “advised that this is all displayed on his first bill”. [41] However the evidence is that this is not correct. The meter reading 1756 was not a ‘work-back’ estimate; rather, the evidence is that there was an actual meter reading on 27/5/2020 (of 1756) and another actual meter reading on 15/06/2020 (of 1960).[42] In the first respondent’s email to the applicant dated 23 April 2020 this ‘workback’ was not confirmed when more comprehensive information was collated and provided to the applicant. The more comprehensive information provided by the first respondent from 23 April 2021 onwards leads the Tribunal to conclude that the May-June 2020 gas usage which was ‘waived’ included nine days of usage i.e. from 27/5/2020 to 4/6/2020, that is prior to the applicant’s gas supply commencement date and prior to the applicant’s gas account being activated.[43] Therefore the waiver of this gas usage was not wholly for gas used by the applicant, and was in part for “overcharging” by the first respondent.
[41] The first respondent’s account notes, evidence attached to applicant’s submission dated 2 September 2021; voice recording for call 15342 on 31 March 2021
[42] Applicant’s invoice, dated 12 September 2020
[43] Welcome letter dated 10 June 2020, and email correspondence about the waiving of the gas units and meter reading dates, dated 9 June 2021, evidence attached to applicant’s submission dated 2 September 2021
Under the contract the first respondent “must inform [the applicant] within 10 business days of [first respondent] becoming aware of the overcharge” (clause 18.2(b)). This clause reflects rule 31(1) of the NERR:
Where a small customer has been overcharged by an amount equal to or above the overcharge threshold [being $50, rule 31(6)], the retailer must inform the customer accordingly within 10 business days after the retailer becomes aware of the overcharging.
While the applicant did receive a credit in the sum of $246.77 and is not ‘out-of- pocket’ for any overcharge, the ‘informing’ of the applicant by the first respondent that he had been overcharged has never occurred. This requirement is critical to the integrity of the billing system, and wrongly characterising an overcharge as a good will gesture undermines that integrity.
It might be argued by the first respondent that it never became ‘aware’ of the overcharge. However, the Tribunal finds that this is not a sustainable contention. The first respondent undertook many detailed manual reviews of the applicant’s account, including the review that led to the first respondent advising the applicant of a credit of $246.77 in an email dated 23 April 2021. In the Tribunal’s view it is clear from the latter email that the respondent was aware then that applicant’s billing started on 5 June 2020, that the applicant had been billed for gas usage prior to that, and that attention to this circumstance was required. The fact that the respondent never explicitly acknowledged the overcharge in the email of 23 April 2021 or subsequently cannot be the test of whether it became aware of it - to accept this as the test would mean that the party subject to the requirement determines whether it is triggered or not which would defeat the purpose of the requirement. The Tribunal finds that the test of whether the first respondent became aware of any overcharging in this case is whether it collated information that reasonably suggested there is an overcharge. The Tribunal finds that the email dated 23 April 2021 and many subsequent communications from the first respondent to the applicant meet this test and that the first respondent from the 23 April 2021 onwards had become aware that there was an overcharge. However it never informed the applicant of this which is contrary to the NERR and its contractual obligations.
While the applicant contended that this non-compliance by the first respondent was not ethical, and a contravention of the Consumer Code, the Tribunal does not make this finding. The common meaning of ‘ethical’ leads the Tribunal to conclude that a finding of unethical conduct requires there be some moral impropriety on the part of the first respondent. In this case the Tribunal finds that there is no evidence of this.
Otherwise, the Tribunal dismisses the applicant’s claims about issue 6.
………………………………..
Senior Member L Beacroft
| Date(s) of hearing: | 1 November 2021 |
| Applicant: | In person |
| Solicitor for First Respondent: | Ms S Denton , ActewAGL |
| Solicitor for Second Respondent | Mr I Male, ActewAGL |
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