APPLICANT1 2025161 v ACT RETAIL INVESTMENTS PTY LTD ABN 53 093 631 586 AND ICON RETAIL INVESTMENTS LIMITED ABN 23 074 371 207 TRADING AS ACTEWAGL RETAIL

BETWEEN: APPLICANT1 2025161 First Applicant AND: APPLICANT2 EW 2025161 Second Applicant AND: ACT Retail Investments Pty Ltd ABN 53 093 631 586 and Icon Retail Investments Limited ABN 23 074 371 207 trading as ActewAGL Retail Respondent

TRIBUNAL: Presidential Member J Lucy Senior Member A Nuttall

DATE: 20 June 2025

ORDER The Tribunal orders that:

1. The first applicant is to be referred to as ‘Applicant1 2025161’.

2. The second applicant is to be referred to as ‘Applicant2 2025161’.

3. There is to be no publication by either party or any other person of the matters contained in the documents filed with the Tribunal or received by the Tribunal for the hearing.

4. There is to be no public access to the file or to any audio or written records of proceedings.

……………………………….. Presidential Member J Lucy For and on behalf of the Tribunal REASONS FOR DECISION

Introduction 1. This was an application, by a married couple, for hardship assistance in relation to their gas and electricity accounts.

2. We dismissed the hardship complaint about the gas service, because there was no evidence that the applicants’ gas service was likely to be disconnected. In those circumstances, the tribunal does not have any powers to make orders under the hardship legislation.

3. We dismissed the hardship complaint about the electricity service because one of the applicants earns a very high income. We were not satisfied that the applicants would suffer substantial hardship if the utility provider disconnected their electricity service or that payment of the debt owed on the electricity account would cause them substantial hardship.

Background 4. The first and second applicants are married with two young children and live together at an address in Canberra. The gas and electricity accounts are in the first applicant’s name. The first applicant is not in paid employment, but the second applicant is.

5. On 30 May 2023, the first applicant applied to the tribunal for hardship assistance with her electricity and gas accounts. The respondent utility (ActewAGL) supplies the first applicant with both electricity and gas.

6. In July 2023, the outstanding balance on the first applicant’s electricity account was $4,039.95 and the outstanding balance on her gas account was $778.57.

7. In May 2024, the tribunal’s registry staff requested the first applicant to complete an updated hardship assistance application form. Her husband, the second applicant, then submitted a new application in his name on 25 May 2024.

8. The tribunal appears to have treated the new application as having been made by both applicants.

9. The matter was adjourned several times and came before the tribunal, differently constituted, on 26 February 2025. The material before the tribunal on that date indicated that the outstanding balance on the first applicant’s electricity account was $7,500 and the outstanding balance on her gas account was $918.03.

10. On 26 February 2025, the tribunal discharged the first applicant’s debt on her gas account. It also discharged $4,000 of the first applicant’s debt on her electricity account, conditional upon her paying the first fortnightly instalment of $200 to the respondent utility by 12 March 2025. The tribunal did not have any documentary evidence before it about the applicants’ income. The orders noted that, “if the applicant encounters any further difficulty in paying any of his utility bills, he can file a new application seeking relief for any hardship he then suffers.”

11. A payment of $200 was made on the first applicant’s electricity account on 26 February 2025 and a subsequent payment of $200 on that account was made on 27 March 2025. A credit report dated 12 May 2025 indicates that no other payments were made on that account after the hearing on 26 February 2025.

12. A credit report dated 12 May 2025 for the first applicant’s gas account indicates that no payments were made on her gas account after the tribunal made a declaration discharging her debt on 26 February 2025, with the possible exception of a payment of $150 which was made on that day.

13. On 11 March 2025, the first applicant made another application to the tribunal for hardship assistance in relation to her gas and electricity accounts. That is the application which was before us.

14. On the application form, the first applicant indicated that her husband’s fortnightly wages were $5,600 on average and that her fortnightly expenditure included $1,062 for rent/mortgage and $1,200 for food, as well as credit card repayments of $200, loan repayments of $800 and buy now / pay later repayments of $100.

15. The first applicant provided payslips in support of the application. These showed that, as at 25 February 2025, the second applicant had earned $158,938.39 in the 2024/2025 financial year to date. His gross wages for that fortnight, after superannuation had been deducted, were $7,431.79.

16. ActewAGL provided credit reports to the tribunal. These indicated that, as at 12 May 2025, the first applicant’s outstanding balance on her electricity account was $3835.22 and the average amount of her fortnightly usage was $182. They also indicated that, at 12 May 2025, the amount outstanding on the first applicant’s gas account was $123.18.

17. ActewAGL stated in an email sent to the tribunal dated 11 March 2025 that it could offer the first applicant a payment plan of $466 per fortnight for her electricity account on its hardship program (known as the “Staying Connected program”). That would cover both ongoing usage and repayment of her debt. On 11 March 2025, her debt was $7,300.99 and the fortnightly repayment figure of $466 was based upon that level of debt.

18. ActewAGL did not provide any indication of how much the first applicant would now need to pay on its Staying Connected program, in light of the reduction of her electricity debt by $3,000.

Hearing

19. The matter came before us for hearing on 14 May 2025. The first and second applicants were both named as applicants in the tribunal’s file. However, only the second applicant appeared at the hearing. The second applicant informed us that he was appearing on behalf of himself and his wife (the first applicant). We were satisfied that the first applicant had received notice of the hearing.

20. ActewAGL did not appear at the hearing. Its non-appearance is expressly permitted by rule 144(4) of the ACT Civil and Administrative Tribunal Procedures Rules 2024 which provides: “The respondent is not required to attend the hearing of a hardship application unless directed by the tribunal.”

21. The second applicant took an oath and gave sworn evidence. His evidence included that his income had not changed since February 2025 (the date of the 1 payslips provided to the tribunal).

22. When asked by the tribunal members how payment of the bills could cause him substantial hardship, he said that last year he had “some family obligation back home” and had to return due to his mother’s health. The second applicant did not explain where “home” was, but the tribunal inferred it was in another country. The second applicant said that, while he was away, the bills built up and he could 2 not catch up.

23. When asked why he had only made one payment to ActewAGL of $200 for electricity since the previous hearing, instead of fortnightly payments of $200, he 3 said: So because last month was a very, like, so many long weekend and as a contractor, if I don't show up, I don't get paid. And I have been sick. I had to take two days off last week, so I could ...(inaudible)... The day before yesterday I went to pay $200 but certain things happened yesterday. It's a very nightmare day. I lost my mobile alone with my cards and all and later on I found it. Even I reported to the cops. They came over here and they told that there is some sort of disputed transactions happening. Almost $300 of transactions that happened yesterday. So it didn't quite happen yesterday. I tried to make some payment amount yesterday, but it didn't quite happen.

24. The second applicant said, however, that he could afford to pay $200 per fortnight 4 on his wife’s electricity account. He later said he may be able to pay $500 per 5 month.

Legislative scheme 6

25. Part 12 of the Utilities Act 2000 (the Act) provides for the making of complaints to the Tribunal about utilities.

1 Transcript of proceedings, 14 May 2025, page 4, lines 33-35 2 Transcript of proceedings, 14 May 2025, page 5, lines 8-32. 3 Transcript of proceedings, 14 May 2025, page 6, lines 21-30 4 Transcript of proceedings, 14 May 2025, page 6, lines 34-36 5 Transcript of proceedings, 14 May 2025, page 8, line 28 6 Act, ss 169-184

26. A table in section 172 of the Act provides for the persons who may apply to the Tribunal about specified matters. Relevantly, a “consumer” may apply to the Tribunal in relation to the following complaint: “a utility fails to provide a utility service to consumer or withdraws a utility service from consumer, and failure or withdrawal causes substantial 7 hardship, or is likely to cause substantial hardship, to consumer”.

27. A “consumer” is defined in the Dictionary to the Act to mean a customer for the service or an occupier of the customer’s premises and to include an invitee of the customer or occupier.

28. Although section 172 of the Act refers to the withdrawal of a utility service, it is plain from other provisions that this includes an anticipated withdrawal of the service. Section 178(1)(b) of the Act provides that the section applies if the Tribunal is satisfied that the respondent to a complaint has caused, or would cause, substantial hardship by failing to provide, or withdrawing, a utility service (emphasis added). Section 179(1) provides that the section applies to “a complaint about the actual or potential withdrawal of a utility service” (emphasis added). Accordingly, reading the provisions harmoniously, a complaint under section 172 extends to a complaint about a proposed withdrawal of a utility service.

29. The orders the Tribunal may make if satisfied that the respondent has caused, or would cause, substantial hardship by failing to provide, or withdrawing, a utility service include: 8 (a) directing the respondent not to withdraw the service, with or without an 9 ancillary direction; and 10 (b) directing the respondent to restore a withdrawn service within 24 hours, 11 with or without an ancillary direction;

7 Act, s 172, table, item 3 8 Act, s 179(2)(a) 9 Act, s 179(3) 10 Act, s 179(2)(b) 11 Act, s 179(3)

30. An ancillary direction which the Tribunal may make is that the service not be withdrawn during a stated period or unless the consumer fails to comply with a 12 stated condition.

31. The tribunal also has powers under Part 12 of the Act to make a declaration 13 discharging a customer debt or part of a customer debt. A precondition to the discharge of debt by the tribunal is that “the ACAT is satisfied that payment of a customer debt in relation to residential premises would cause substantial hardship 14 for the customer.”

Does the tribunal have jurisdiction in this matter?

32. In order for the tribunal to have power to make any orders under Part 12 of the Act, it must first be satisfied that the complaint falls within the table in section 172 and is made by a person identified in that table. The relevant category here is: 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

33. We are satisfied that both applicants are “consumers” (within the second column) because the first applicant is a customer for the gas and electricity services and 15 the second applicant is an occupier of the customer’s premises.

34. The tribunal must be satisfied when dealing with hardship complaints, before its power to make orders is enlivened, that “the respondent has caused, or would cause, substantial hardship by failing to provide, or withdrawing, a utility 16 service.”

Gas

35. In relation to the applicants’ hardship claim in respect of the first applicant’s gas service, we are not satisfied that they have established that ActewAGL proposes to withdraw the service. There is no evidence that ActewAGL has sent the first

12 Act, s 179(3) 13 Act, s 180 14 Act, s 180(1) 15 See definition of “consumer” within the Dictionary in the Act 16 Act, s 178(1)(b) applicant a reminder notice or a disconnection warning notice, as required under 17 the National Energy Retail Rules before disconnection can occur. The debt is very low ($123.18). The Australian Energy Regulator’s minimum amount for 18 disconnection is $300.

36. For these reasons, we are not satisfied that ActewAGL has withdrawn or proposed to withdraw the applicants’ gas service. Accordingly, we do not have power to make orders granting relief in respect of the complaint about the first applicant’s gas service.

37. We have dismissed the applicants’ application for hardship assistance in relation to the potential withdrawal of the gas service for this reason.

Electricity

38. There is no evidence that ActewAGL has sent the first applicant a reminder notice or a disconnection warning notice in relation to her electricity service, as required 19 under the National Energy Retail Rules before disconnection can occur. However, the first applicant owes several thousands of dollars to ActewAGL in respect of her electricity account. This means that there is a real possibility that ActewAGL proposed to disconnect the electricity, before the first applicant made her hardship application to the tribunal on 11 March 2025.

39. We might have considered asking the parties for more evidence about threatened disconnection, had we not taken the view that we would not have granted the applicants any relief, even if they could establish that ActewAGL proposed to withdraw the electricity service.

Meaning of “substantial hardship”

40. As indicated above, the gateway to the Tribunal’s power to make orders under Part 12 of the Act is its satisfaction that “the respondent has caused, or would

17 National Energy Retail Rules, rule 111(1)(c) and (d), as applied by National Energy Retail Law (ACT) Act 2012, s 6 (see Legislation Act 2001, s 104(1)) 18 Australian Energy Regulator, AER final decision on the minimum disconnection amount (Web page) <https://www.aer.gov.au/news/articles/communications/aer-final-decision-minimum-disconnection-amount\> 19 National Energy Retail Rules, rule 111(1)(c) and (d), as applied by National Energy Retail Law (ACT) Act 2012, s 6 (see Legislation Act 2001, s 104(1)) cause, substantial hardship by failing to provide, or withdrawing, a utility 20 service.”

41. The phrase “substantial hardship” is used in two contexts in Part 12 of the Act. First, it is used in the context that a complaint under that Part includes that the 21 withdrawal of a utility service would cause “substantial hardship.” This language is echoed in section 172(1)(b) of the Act, which provides that if the tribunal is satisfied that “the respondent has caused, or would cause, substantial hardship by failing to provide, or withdrawing, a utility service,” the tribunal may make orders mentioned in section 172(2).

42. Secondly, the phrase “substantial hardship” is used in relation to the effect which payment of a debt would have on a customer. Section 180(1) provides: If the ACAT is satisfied that payment of a customer debt in relation to residential premises would cause substantial hardship for the customer, the ACAT may, in writing, declare that the debt is discharged in whole or to a stated extent. (emphasis added) 22

43. The term “substantial hardship” is not defined. In Masson v Parsons, Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ said: “a court will not construe a provision in a way that departs from its natural and ordinary meaning unless it is plain that Parliament intended it to have some different meaning”.

44. Dictionary definitions of “hardship” include: (a) (something that causes) difficult or unpleasant conditions of life, or an 23 example of this: economic hardship; 24 (b) a condition of life that causes difficulty or suffering; 25 (c) something that causes or entails suffering or privation;

20 Act, s 178(1)(b) 21 Act, s 172, table, item 3 22 [2019] HCA 21 at [26] 23 Cambridge Dictionary (online) ‘hardship’ <https://dictionary.cambridge.org/dictionary/english/hardship\> 24 Cambridge Dictionary (online) ‘hardship’ <https://dictionary.cambridge.org/dictionary/english/hardship\> 25 Merriam Webster Dictionary (online) ‘hardship’ <https://www.merriam-webster.com/dictionary/hardship\> 26 (d) a condition that is difficult to endure; suffering; deprivation; oppression. 27

45. The term “substantial” means “large in size, value, or importance,” or 28 “considerable in quantity : significantly great.”

46. In our view, without intending to be exhaustive or definitive, the phrase “substantial hardship” in Part 12 of the Act refers to a condition that is significantly difficult to endure and entails significant suffering or deprivation. There are varying degrees of hardship which may be suffered by an individual. The term “substantial” does not require the hardship in question to be extreme, 29 but requires it to be serious or of significance.

Would withdrawal of the electricity service cause substantial hardship?

47. We are not satisfied that ActewAGL would cause the applicants substantial hardship by withdrawing their electricity service.

48. The second applicant has a very high income and uses that income to pay utility bills for the home in which he lives. In light of the second applicant’s evidence that his income had not changed since February 2025, we estimate him to be on an income of over $200,000 per annum. Whilst the applicants have some debts and high regular outgoings, some of these appear to relate to discretionary spending (such as a reported $1,200 fortnightly expenditure on food). This discretionary spending could be reduced without causing them substantial hardship.

49. Further, if their electricity were to be disconnected the applicants would likely be able to open a new account with another electricity provider and continue to be provided with an electricity service, or the first applicant may be able to enter into a payment plan with ActewAGL. Alternatively, the second applicant could apply for an electricity account in his name and the applicants could be provided with

26 Dictionary.com (online) ‘hardship’ <https://www.dictionary.com/browse/hardship\> 27 Cambridge Dictionary (online) ‘substantial’ <https://dictionary.cambridge.org/dictionary/english/substantial\> 28 Powell v Evreniades (1989) 21 FCR 252 29 For a comparable view, see Hill J’s discussion of the term “serious hardship” in Powell v Evreniades (1989) 21 FCR 252 30 electricity in that way. Under section 22(1) of the National Energy Retail Law, a “retailer must make an offer (a standing offer) to provide customer retail services to small customers for whom it is the designated retailer.”

50. For these reasons, we are not satisfied that the applicants would suffer substantial hardship if their electricity service were to be disconnected. This means the tribunal does not have power to make any orders in relation to their hardship application for relief in relation to their electricity service. We have, however, considered whether we would have discharged the first applicant’s debt if we had found that the applicants, or either of them, would suffer substantial hardship if their electricity service were to be disconnected.

Debt discharge

51. The primary relief the applicants sought in relation to their electricity service was a declaration that the first applicant’s electricity debt was discharged. This is a remedy available only to a customer (that is, only available to the first applicant and not to the second).

52. Even if disconnection of the first applicant’s electricity account would cause her substantial hardship (contrary to our finding), we do not consider that the precondition for discharging the first applicant’s debt is fulfilled. That is, we are not satisfied that “payment of a customer debt in relation to residential premises would cause substantial hardship for the customer.”

53. Having regard to the second applicant’s high income, we find that payment of the first applicant’s electricity debt would not cause the applicants substantial hardship, particularly if they paid it off over a period of time. The period the second applicant spent with his sick mother in 2024 has now passed. His evidence is that he continues to earn a very high income. We are satisfied that he could pay the amount offered to the first applicant by ActewAGL on a payment plan, which would now be significantly lower than $466 per fortnight, without either of the applicants suffering substantial hardship.

30 The National Energy Retail Law set out in the schedule to the National Energy Retail Law (South Australia) Act 2011 (SA) is applied as a territory law by National Energy Retail Law (ACT) Act 2012, s 6

54. We also note that the tribunal discharged $3,000 of the first applicant’s electricity debt in February 2025. Had we been satisfied of other matters favourable to the applicants, we would have considered dismissing the matter under section 176(1)(f) of the Act, on the basis that “the matter complained of has already been dealt with adequately by the ACAT.”

Non-publication orders

55. After the hearing, the Tribunal decided to make orders on its own motion under section 39 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act), and pursuant to the tribunal’s implied incidental powers, before publishing this decision, to protect the applicants’ privacy and personal information.

56. Section 39 of the ACAT Act confers power on the Tribunal to make orders, on its own initiative, prohibiting the publication of evidence given at the hearing and of matters contained in documents filed with the tribunal or received in evidence by the tribunal for the hearing. Before making the order, the Tribunal must be 31 satisfied that the right to a public hearing is outweighed by competing interests. The right to a public hearing is outweighed by competing interests if the Tribunal is satisfied that the application, or part of the application, should be kept private 32 because the interest of the private lives of the parties require the privacy.

57. We are satisfied that the private lives of the applicants require privacy, and that the right to a public hearing is outweighed by the competing interest in maintaining their privacy.

58. We take into account, in making the s 39 order, that section 184(1)(a) of the Act provides that the Tribunal must preserve the confidentiality of information disclosed to, or obtained by, the Tribunal in the exercise of its functions under Part 12, including personal information. “Personal information” is defined in the Dictionary to the Act by reference to section 6 of the Privacy Act 1988 (Cth). “Personal information” is defined in s 6 of the Privacy Act 1988 (Cth) to mean: information or an opinion about an identified individual, or an individual who is reasonably identifiable: (a) whether the information or opinion is true or not; and 31 ACAT Act, s 39(1) 32 ACAT Act, s 39(5)(b) (b) whether the information or opinion is recorded in a material form or not.

59. The information the applicants provided to the tribunal about their personal and financial circumstances is sensitive. It is “personal information” because it is information about them (identified individuals). The second applicant was the only person who attended the hearing other than the Tribunal members. Even though we did not make an order that the hearing was a closed hearing, the names of applicants in hardship matters are not displayed in tribunal lists and we consider that the information was provided to the tribunal confidentially.

60. The tribunal also has an implied incidental power to make orders that an applicant be referred to by a pseudonym and that there be no access to the file or to any 33 records of proceeding. We are satisfied, for the reasons given above, that it is in the interests of justice to make such orders.

61. For these reasons, we have made the following additional orders: 1. The first applicant is to be referred to as ‘Applicant1 2025161’. 2. The second applicant is to be referred to as ‘Applicant2 2025161’. 3. There is to be no publication by either party or any other person of the matters contained in the documents filed with the Tribunal or received by the Tribunal for the hearing. 4. There is to be no public access to the file or to any audio or written records of proceedings.

……………………………….. Presidential Member J Lucy For and on behalf of the Tribunal Date(s) of hearing: 14 May 2025 Applicants: Second applicant in person Respondent: No appearance

33 Applicant 4102023 v ACTEWAGL Retail [2024] ACAT 61 at [42]; Council of The Law Society of The Australian Capital Territory v R (a pseudonym) [2025] ACAT 8 at [10]-[20]