Catchwords: ENERGY AND WATER - complaint against utility for unusually high water bill - whether there was an undetected leak - whether there was a fault in the meter - prima facie evidence of supply - Consumer Protection Code 2020 - Water Metering Code 2000 - complaint made out - advice to the Minister on systemic problems

List of Legislation: ACT Civil and Administrative Tribunal Act 2008 ss 9, 105A

Utilities Act 2000 ss 55, 87, 92, 172, 176, 178

legislation cited: Utilities (Consumer Protection Code) Determination 2020

Cases cited: Davey v ActewAGL [2001] ACTESCC 10

John Eder Riley v Garth Christian Seip [2008] ACTSC 72

Waite v Hennah [2021] WASCA 69

1. Pursuant to section 178(2)(b)(iii) of the Utilities Act 2000 the Tribunal is satisfied the applicants' complaint is made out, namely that the respondent has failed to provide them with a bill reasonably or reliably based on a reading of their water meter as required by the Consumer Protection Code.

2. The Tribunal directs the respondent pursuant to section 178(2)(b)(i) of the Utilities Act 2000 to remedy its failure by withdrawing the account issued on 8 January 2021 and accepting in full satisfaction as a reasonable estimate of usage for water consumption charges in the period 14 July 2020 to 14 November 2020 the amount of $480 paid by the applicants.

1. Susan Bennett and Jack Waterford (the applicants) made a complaint on 15 March 2021 about a utility, Icon Water Limited ACN 069 891 960 (the respondent) pursuant to Part 12 of the Utilities Act 2000 (the Utilities Act). On 4 August 2021 the complaint was referred to the Tribunal for hearing.

2. Jurisdiction to hear a complaint application is conferred on the tribunal by section 172 of the Utilities Act which is an authorising law for the purposes of section 9 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act). The Tribunal has power under section 176 of the Utilities Act to dismiss the complaint on various grounds and power under section 178 if it is satisfied in relation to a complaint to give written directions to the respondent.

3. In the reasons below, a reference to 'ACAT' or 'tribunal' refers to the ACT Civil and Administrative Tribunal generally, whereas 'Tribunal' refers to the member who heard the application.

4. The matter was heard on 1 March and 2 March 2022. The Tribunal had before it the documents provided by the respondent concerning the complaint, witness statements and the submissions of the parties. The applicants were self-represented. The respondent was represented by Mr S Taleski of NV Lawyers.

5. The applicants gave oral evidence as did Mr Bradley Porter, a Senior Technical Officer on behalf of the respondent. The applicants and respondent made oral submissions and responded to questions of the Tribunal.

6. At the conclusion of the hearing the Tribunal reserved its decision and indicated it would provide written reasons. These are those reasons.

7. The applicants own and reside at a property in Reid (the property) which is the supply address for the respondent's service. They purchased the property jointly in 2016. On 8 January 2021 the applicants were issued a water and sewerage account for the supply of services at the property which totalled $9,657.38. The account included water consumption charges for the billing cycle 14 July 2020 to 14 November 2020 totally $9,490.53. The applicants dispute this usage. The account remains unpaid. The respondent was directed by the tribunal not to charge interest from the date of issue to the date of decision. The applicants have paid an amount of $480 which they say represents an estimate of their likely usage for the period.

8. The respondent is that part of the ActewAGL Distribution Partnership which is responsible for water and wastewater management in the ACT. Its billing services and accounts are prepared and issued by its parent ActewAGL.

9. Section 172 of the Utilities Act set out as below:

_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.

contravention of customer contract, or customer retail contract or customer connection contract made under the National Energy Retail Law (ACT), by a utility

contravention of an industry code dealing with utility service standards by a utility

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

contravention of s 51 (Protection of personal information) by a utility

contravention by a utility or a regulated utility of an obligation in relation to its network operations under this Act or the Utilities (Technical Regulation) Act 2014

act or omission of an authorised person for a utility or regulated utility in relation to its network operations under this Act or the Utilities (Technical Regulation) Act 2014

10. Section 87(1) of the Utilities Act provides with respect to standard customer contracts:

(1) For this Act, the terms of a standard customer contract for the provision of a utility service by a particular utility are the terms of the contract, as approved or determined from time to time under this division, for the provision of the service by the utility.

11. Section 92 of the Utilities Act provides:

_(1) The terms on which a utility may provide a utility service to a person are - _

(a) to the extent that the service is provided under a negotiated customer contract - the terms of the contract; or

_(b) in any other case - the terms of the standard customer contract for the provision of the service by the utility that apply - _

(i) when the person applies to the utility for the service on those terms; or

(ii) when the service is provided by the utility to the person in the absence of an application by the person.

(2) Where subsection (1) (b) applies, the terms of the standard customer contract constitute an enforceable contract between the utility and the person for the provision of the service.

(a) has no effect in relation to anything occurring before it comes into operation; and

(b) is subject to any variation under section 93; and

(c) is unenforceable by the relevant utility to the extent (if any) to which it does not comply with the requirements set out in section 89 (2) (a) and (b).

12. Section 55 of the Utilities Act provides for the creation of industry codes. Pursuant to that provision, a Consumer Protection Code[1] applicable to, inter alia, the provision of water services and sewerage services, and a Water Metering Code[2] that applies to water utilities specifically have been issued.

13. Clause 13.1 of the Consumer Protection Code provides:

(1) A Utility may issue a Bill to a Customer for the consumption of its Utility services at the Customer's Premises.

(2) Unless the Customer gives explicit informed consent, a Utility must base a Bill on a reading of the Customer's meter, as defined in the relevant Technical Code.

(3) Despite clause 13.1(2), if a Utility is not able to reasonably or reliably base a Bill on a reading of the Customer's meter, the Utility may provide the Customer with a Bill based on estimated consumption, as provided in the relevant Technical Code.

(4) Nothing in this clause shall be taken to prevent a Utility and a Customer agreeing upon a means of calculating the Customer's Bill otherwise than as prescribed under this clause.

14. Clause 15 of the Water Metering Code provides:

If a dispute arises between a Customer and a Water Utility, data stored in the Metering Equipment will be prima facie evidence of water supplied to the Customer.

15. The Water Metering Code defines 'Metering Equipment' and 'Metering Information' as below:

(15) "Metering Equipment" means equipment that measures and records the consumption of water and includes the threads to that equipment as well as the protective surrounds;

(16) "Metering Information" means measurements and recordings taken by Metering Equipment.

16. The matter at issue is the status to be afforded to prima facie evidence of supply drawn from the meter reading as provided in Clause 15 of the Water Metering Code.

17. There is substantial case law with respect to what are usually called averment provisions in legislation. Some guidance as to the regard to be given to a prima facie evidence provision as at issue here can be drawn from the manner in which courts have dealt with similar provisions in motor vehicle law, particularly with respect to matters dealing with ascertaining the speed at which a motor vehicle is driven or the concentration of alcohol in the blood of a driver. The respondent provided a number of such examples which set out the relevant principles.

18. In Waite v Hennah (Waite)[3] the Supreme Court of Western Australia in considering prima facie evidence of the speed at which a vehicle was moving as ascertained by speed measuring equipment said:

80. A prima facie evidence provision ought, ordinarily, to be distinguished from a provision to the effect that a fact is taken to be established unless the contrary is proved. A prima facie evidence provision has a lesser effect. The author of Cross on Evidence identifies two senses in which the term 'prima facie evidence' is used, namely:[4]

1. Prima facie proof of an issue the burden of proof of which is upon the party giving that evidence and where, in the absence of further evidence, the prima facie proof becomes conclusive proof and the party giving it discharges his or her onus.

2. Where a party's evidence in support of an issue is sufficiently weighty to entitle but not to oblige a trier of fact to decide the issue in that party's favour.

81. The author of Cross on Evidence observes that, when used in a statute, the term 'prima facie' evidence usually bears the meaning in [80.1] above.[5] As so read and construed, a statutory provision providing for particular evidence to have the status of 'prima facie evidence' effects no alteration in the legal onus and standard of proof.[6]

19. The Court noted that such additional evidence to displace the proof effected by the prima facie evidence can come from either party.[7]

87. Accordingly, on its proper construction, the 'prima facie evidence' pursuant to s 117(4) is evidence that is sufficient in law on its own to discharge the prosecution's legal onus of proof beyond reasonable doubt of the fact in issue being the speed at which the vehicle was moving at the relevant time. However, if there is evidence (whether advanced in the prosecution or defence cases) that is inconsistent with the fact to be proved by the prima facie evidence - namely the speed at which the vehicle was moving - the trier of fact must determine on the whole of the evidence whether that fact is proved beyond reasonable doubt. The trier of fact may do so taking into account the prima facie proof effected by the prosecution adducing evidence that satisfies the prima facie evidence provision in s 117(4). It will be a matter for the trier of fact to say, on the whole of the evidence, whether the speed of the accused's vehicle is established beyond reasonable doubt. The trier of fact may, but need not, treat the prima facie proof of the speed at which the vehicle was travelling as establishing that degree of proof.

88. The practical effect of the provision will be that the accused may have to adduce evidence - either elicited in cross-examination or given directly by the accused or a witness called on his or her behalf. Otherwise, there being no inconsistent evidence, the prima facie evidence adduced by the prosecution becomes conclusive proof. But at all times the legal burden of proof remains with the prosecution.

21. In John Eder Riley v Garth Christian Seip (Riley)[8] the Supreme Court of the Australian Capital Territory in considering prima facie evidence of the presence of the concentration of alcohol of a driver as ascertained by a breath analysing instrument said:

36. The certificate evidencing the administration of a breath test, as provided for by the RT (A & D) Act, provides prima facie evidence of the presence of the concentration so recorded. It also evidences that the machine producing the result was operating and was operated correctly. There is an evidentiary assumption that the machine will return an accurate result.

37. That evidentiary assumption may be displaced by other evidence which casts reasonable doubt upon it.

41. That is not to assume that, once an adverse result is obtained by breath analysis, the subject of it bears any legal onus of proof to displace it. However, it does cast an evidential burden upon that subject to cast reasonable doubt upon the result so obtained. That evidential burden had not been discharged (see s 58(7) Criminal Code 2002 (ACT) for the meaning of that expression).

22. Drawing from these statements of relevant principles the Tribunal followed this evidential pathway in considering the complaint, hearing:

(a) Evidence of the meter reading as prima facie evidence of water supply,

(b) evidence introduced by the applicants as to their water usage, and

(c) the respondent's further evidence as to water usage.

23. The water and sewerage account issued to the applicants for water consumption on the property for the billing period 14 July 2020 to 14 November 2020 recorded water usage of 1955 kilolitres (kL). Consumption was charged at two levels, $2.46 per kL for the first 0.548 kL supplied on average per day of the billing period and then $4.94 per kL for all water supplied in excess of 0.548 kL on average per day of the billing period.[9] The usage averaged 15.89 kL per day for the billing period of 123 days. This is a large body of water by any measure. The average daily water consumption graph shown in Mr Porter's statement shows a dramatic spike in usage for the billing period and then a return to normal usage thereafter in the next billing period.[10] The applicants sought to visualise 1955 kL in terms of that volume of water being equivalent to filling a 50 metre by 25 metre Olympic swimming pool to an average depth of 1.6 metres.[11] The respondent agreed this was an accurate equivalent of volume but contended it was more useful to visualise the water in terms of usage, which equates to a flow rate over the whole of the billing period of 11 litres per minute.

24. The account issued to the applicants for water consumption charges of $9,490.53, together with supply charges not in dispute, totals $9,657.38.[12]

25. The applicants initially complained about their account to the respondent and the respondent arranged for the testing of their meter by an independent facility. On 6 July 2021 the meter was tested at the PROVE Water Meter Testing Laboratory in Campbellfield, Victoria. A summary of that testing and a Certificate of Accuracy were provided following the testing, and these were made available to the applicants.[13]

26. That summary recorded flow rate tests carried out in accordance with Australian Standard AS3565.4 which show the meter was within specification with readings within -2% and +2% of actual volume at the time of testing.[14] A mechanical inspection of the disassembled meter showed "no mechanical faults were found, and the meter appeared to be in good working order".[15]

27. Mr Porter's evidence was that the respondent had in the order of 130,000 meters in service, of which approximately 95% were of the 20mm type installed on the applicants' property. Such meters are tested prior to delivery by the manufacturer. The subject meter was tested by the supplier Elster on 5 June 2019 prior to installation on 30 August 2019. There is no regime of routine testing of meters in situ. There is a cyclic replacement regime where the meter has been in place for 18 years or has recorded five mega litres whichever occurs first. Meters are also replaced where they fail, usually where they 'lock' and fail to record consumption or operate in a reduced capacity. Mr Porter's evidence was that he recalled only one instance in nine years where a meter failed and recorded more than the volume used.

28. Mr Porter described the process of meter reading. A meter reader would attend the premises, read the cumulative total recorded on the meter index face and enter the reading on a PDA (a personal digital assistant) or another mobile device. It is not in dispute that the meter index was displaying a reading of 2309 kL on 14 November 2020 when inspected. The meter reader would not routinely be aware of the previous reading (which is not recorded on the meter face) and would not be alerted to the spike in usual consumption. The data stored in the meter is simply the cumulative total usage since installation. The previous reading of 354 kL is recorded elsewhere by the respondent and needed to be deducted from the meter reading of 2309 kL to arrive at the usage figure of 1955 kL. An invoice recording the resultant water consumption charges was issued to the applicants on 8 January 2021 by ActewAGL Retail on behalf of the respondent.

29. Given the heightened use, the respondent undertook a check meter reading on 3 December 2020 before issuing the invoice to confirm the reading. It does not appear as if the respondent has any protocols in place to alert consumers to extreme spikes in recorded consumption prior to the issue of an invoice. In this instance the first contact was when the applicants contacted the respondent on or about 11 January 2021. At the respondent's suggestion the applicants did a check themselves for possible leakages against the respondent's High Water Use Checklist[16] and engaged a plumber to attend to do likewise on 14 January 2021.

Evidence introduced by the applicant as to water usage

30. The onus of proof remains at all times with the respondent, but the applicant has an onus, or perhaps more correctly, an opportunity to introduce further evidence to displace the proof effected by the prima facie evidence.

31. Ms Bennett gave evidence that the applicants had purchased the property six years prior and had been living in it for the past four and a half years. Prior to moving in she and her husband had carried out a total rebuild behind the front heritage façade of the house and this rebuild included re-plumbing, installation of a programmable sprinkling system, and installation of two large rainwater tanks which supplied water to all three toilets on the property. She set and used the irrigation system which has five pre-set zones - three popup pulse sprinklers zones for the lawn and two zones with mostly surface piping spraying the gardens. The pre-set was for two days per week, set at 20 minutes for each zone. Her evidence was that in winter months she turned off the programmed pre-set and used the program manually when and if needed. She says when the irrigation system is operating it is impossible to be unaware that it is on because the spray of water is visually obvious and because it makes a distinctive noise.[17]

32. As a consequence of the constraints of COVID-19, Ms Bennett's evidence was that she was present at home to an unusual extent in the billing period 14 July to 14 November 2020. She was only absent between 2 August and 9 September 2020 visiting family in Melbourne. When she returned on 9 September 2020 she was then subject to two weeks quarantine when she was exclusively at home and was monitored by Australian Federal Police visits. She spent a large part of those days in the garden and her evidence was that she noticed no signs of water leakage or running water.

33. Ms Bennett said the average water consumption account for the property since they have lived there has been in the order of $300.[18] The previous highest bill was for $982.24 when they knew their usage was high as it was during a drought, and they were establishing new gardens.[19]

34. Ms Bennett said when she received the respondent's invoice totalling $9,657.38 after its issue on 8 January 2021, she immediately contacted the respondent to dispute the amount. That invoice shows the last bill totalled $218.51. As suggested by the respondent, she checked for any undetected water usage or leakage. She found none. She engaged a plumber, Aurora Facilities Maintenance (Aurora) to search for any leakage or plumbing problem that could explain excessive usage. A report from Aurora dated 14 January 2021 recorded that following pressures tests, the water service on the property was not found to be leaking, nor was the irrigation system.[20] No plumbing work was needed or undertaken.

35. At the time of her contact with the respondent's representative on or about 11 January 2021 Ms Bennett mentioned her neighbour had left a tap running on her own property over a weekend away and some of that water had seeped into the applicants' property causing flooding in a lavender garden bed, in her words "drowning" a number of plants which required replacement. The neighbour later provided advice to the applicants that this resulted in a considerably higher water bill in that billing period.[21] Ms Bennett's evidence was that she related this incident to the representative as an illustration that she was aware that even a weekend of running water would cause flooding and alert her to water leakage. She said this leakage was in no way related to their own water consumption though the respondent's representative mistakenly thought it was.

36. On 9 March 2021 another representative from the respondent (in fact Mr Porter) attended the property and in Ms Bennett's presence carried out an inspection for leaks and conducted pressure test similar to that undertaken by Aurora. The tests again showed no evidence of leakage or meter malfunction.

37. Mr Waterford was joined as an applicant by order of the Tribunal of 4 August 2021. At the request of the Tribunal he also filed a witness statement.[22]

38. Mr Waterford described the "physical geography" of the property noting that the property has been well gardened and cultivated for more than 80 years and sits on a clay bedrock which he estimates is at about a depth of 150cm.[23]

39. Mr Waterford says that for all intents and purposes he too was continuously in residence in the property for the July to November 2020 period, in "effective house-arrest" given his heightened COVID-19 risk.[24] During that time he made regular use of the whole property. He described several "little daily rituals" which meant most areas of the property came to his attention on a regular basis. He went first thing in the morning to the front of the house and collected the papers. He came back to the front of the house later to collect the mail. He fed birds on the ground in front of the veranda during the day and did likewise with parrots in fruit trees at the rear daily. He hung washing on the back clothesline, and did this even when it was raining to avoid using the clothes dryer. He spent a good deal of his time when indoors in the rear wing kitchen-family space which is extensively windowed opening across the whole back garden. His home office and bedroom also face the back lawn. He gave evidence that as a consequence of these "rituals" it would have been impossible for him to have not heard or seen the irrigation system if it was left on given it makes a distinctive audible "throb, throb, throb" sound when operating. He similarly says because of his continuous occupation he saw no unusual water consumption whatsoever either inside or outside the house nor any drips, leaks or malfunctions.[25]

40. Mr Waterford responded to two specific conjectures of the respondent as to the reason for possible excessive water usage. Firstly, the applicants had given evidence that they noted noise in the then newly installed rainwaters tanks in about 2019 and that this was subsequently rectified by a plumber. The respondent had speculated that this noise may have been supplementary mains water flow into the tanks activated because rainwater was low. The respondent's conjecture was that such an event had reoccurred in the billing period. Mr Waterford's evidence was that there was no reoccurrence of any such noise in the subject period, and further he had no knowledge as to whether the water tanks in fact had such a supplementary mains connection function.

41. Mr Waterford also responded to the respondent's conjecture that part of the property's underground water supply may have burst and issued a large volume of water that went undetected underground. Mr Waterford's evidence was that following receipt of the disputed invoice they were thoroughly inspected by Aurora plumbing and the inspection detected no issues that required fixing or repair of any presumptive tear in the underground piping. He said this was borne out when the quantum of the next issued account in January 2021 returned to regular water consumption levels without intervention.

The respondent's further evidence as to water usage

42. The respondent's case was that it was not its place to speculate on how excess water was used or went unnoticed. Nonetheless, the respondent may seek to strengthen its position with additional evidence to bring the prima facie evidence from the meter to the level of conclusive proof sufficient to satisfy the Tribunal on the balance of probabilities. On this basis the respondent provided a number of scenarios as to how it says excess water usage may have gone undetected by the applicants.

43. Mr Waterford's evidence had been that the water tanks had malfunctioned in 2019. In response, Mr Porter said that the cause of this malfunction depended upon how the tanks had been plumbed up. He described what he said was the most common way this is done - namely that if the tank is depleted because of low rainfall a mechanism, usually a changeover valve, is in place to then fill the tank through mains water pressure instead. If this mechanism fails, mains water could still flow into the tank continuously and be discharged into the storm water unnoticed. Though there was no evidence as to whether the rainwater tanks on the property had such a backup, Mr Porter's view was that it would be both unwise and unlikely not to have such a backup given the tanks were being used as the sole flushing source for all three toilets. He said on this basis this conjecture is a plausible explanation for how the excess use went unseen.

44. Additionally, Mr Porter's view was that the irrigation system could produce undetected excess water use. His evidence was that this could either be caused by a burst pipe in the underground system, or an appliance fault at ground level, such as a stuck float valve or a solenoid valve failure. Both of such failures could be intermittent. Such faults could lead to leakage even when the irrigation system was turned off. The resultant water flow could be undetected as the system of irrigation trenches would act as channels and carry water away underground, or it could seep down to other trenches (stormwater, sewerage or water) deeper in the ground that traverse the property. In the respondent's view, this too provides a plausible explanation for undetected excess water use.

The applicants' submissions on the matter at issue

45. The applicants do not accept that the invoiced supply of water was delivered and consumed. They say there was no evidence of leakage in their irrigation system. Similarly, there was no evidence of fault or mains water running into their rainwater tanks. Further, there was no evidence of water running or leaking indoors and the toilets at all times were flushed with tank water. Lastly there was no evidence of lawn or garden bed pooling of water on the property. Ms Bennett's conversation with the respondent's officer about how she had observed pooling resulting from seepage from the neighbour's property flooding her lavender bed was in their submission evidence of how quickly leakage would come to their attention.

46. The applicants submitted that upon receipt of the invoice they inspected closely for leakages. They engaged a plumber to do likewise, who conducted standard volumetric and high flow testing. No fault or leakages were detected. No repairs were needed or carried out. Without any plumbing intervention the water consumption recorded moved back to within its standard range in the next billing period.

47. In the applicants' submission what flows from this is that there never was a delivery of the volume of water invoiced. This leads them to the conviction that there was a meter fault at some time during the July-November 2020 metering period. The applicants do not dispute that the meter was running within acceptable tolerances at the time of testing later in July 2021 but submit this does not discount the possibility of intermittent fault.

48. The applicants say that when clause 15 of the Water Metering Code refers to data stored in the metering equipment being "prima facie evidence of water supplied", 'metering equipment' can only mean its hardware, given the definition specifies "the threads to that equipment as well as the protective surrounds". They say it does not extend to any external source of stored data. The only data drawn from the meter reading on 14 November 2020 was the cumulative usage over the life of the meter displaying on the meter index, namely 2309 kL. It is the applicants' submission that other data stored elsewhere does not have the same status as prima facie evidence, given it needs to be separately drawn upon to calculate the water consumption charge invoiced.

49. The applicants contend the figure of 1955 kL arrived does not constitute prima facie evidence of the water delivered and consumed in the billing period.

The respondent's submissions on the matter at issue

50. The respondent rightly contends it is not required to provide any explanation or prove how the water registered on the meter was used.[26] The respondent says it delivered the invoiced volume of water as passed through and recorded by the meter. This was usage in the billing period of 1955 kL, charged at two specific rates for water supplied on average per day for that period. The respondent says that in spite of this amount of water being "incredibly high" it represents approximately only a third of the water that could have feasibly been supplied to the applicants during the billing period.[27] On Mr Porter's evidence a faulty meter will ordinarily lock and fail to record consumption rather than disengage and free spin to record excessive usage. The mechanical inspection carried out when the meter was tested on 6 July 2021 disclosed no damage to the number wheels or any other fault. The meter was neither faulty then nor was it faulty when read in the previous November.

51. The respondent submits that in the absence of further evidence to the contrary data stored in the meter is sufficient to establish the amount of water consumed during the billing period.[28] The respondent says in this case the prima facie evidence of the meter becomes conclusive proof.

52. The respondent submits the applicants have failed to meet the necessary evidentiary burden to rebut the presumption under clause 15 of the water Metering Code.[29] The respondent says nothing the applicants have raised displaces that proof.

Tribunal's consideration and conclusion on the matter at issue

53. The Tribunal has jurisdiction under section 172 of the Utilities Act to deal with the applicant's complaint. The applicants are complainants with the status to make an ACAT application being "consumer(s) affected by contravention" in column 2 of Table 172 and their complaint is in relation to a "contravention of an industry code dealing with utility service standards by a utility" as per column 3 of Table 172, specifically the Consumer Protection Code.[30]

54. The supply of water services was provided to the applicants on the basis of the terms of the respondent's standard contract and those terms apply as per section 92 of the Utilities Act.

55. The principles drawn from cases such as Waite and Riley are helpful and instructive. A prima facie provision in a statute gives the respondent a (short cut) means by which to the respondent can meet its onus and standard of proof.[31] In the absence of further evidence, the prima facie proof becomes conclusive proof and the respondent has without doing more discharged its onus.[32] If the applicants adduce any 'further proof' to displace this evidence this does not effect any alteration in the legal onus and standard.[33] Though the respondent asserted there was such a shift of onus in its written submissions,[34] it rightly conceded in its final oral submissions that this was not so. Such 'further evidence' must go to the fact to be proved by the prima facie evidence - namely as to the metered amount of water was consumed.[35] The trier of fact must then on the balance of probabilities determine on the whole of the evidence whether that fact is proved.[36]

56. The applicants (and, separately the respondent, but in a contrary fashion) adduced such further evidence. The evidence adduced by the applicants raises for the Tribunal the pertinent question: if the meter has delivered a true reading of consumption where is the evidence of excessive consumption? Using the respondent's High Water Use Checklist as a guide the Tribunal has before it no evidence of new water appliances being installed; nor evidence of known leaks or plumping work; nor evidence of leaky appliances; nor evidence of change in the number of household occupants; nor evidence of new gardens or plantings on the property. Further, there was evidence that the irrigation system, and separately the rainwater tanks, when tested several times after the applicants received the invoice showed no evidence of fault or leakage.

57. Significantly, as the bar graph in Mr Porter's statement[37] starkly illustrates, while there was an extreme spike in the regular metered consumption recorded in the billing period there was then a return to regular consumption in subsequent quarters, without any plumbing repair or intervention.

58. The respondent's view as to where this leaves the prima facie evidence is misplaced. Clause 15 does not set up a rebuttable presumption. As Waite makes clear:

A prima facie evidence provision ought, ordinarily, to be distinguished from a provision to the effect that a fact is taken to be established unless the contrary is proved. A prima facie provision has a lesser effect.[38]

59. The obligation placed on the applicants in such circumstances is not at the level of needing to 'disprove' the prima facie evidence offered by the water meter. Waite speaks rather in terms of the applicants having to adduce evidence inconsistent with the prima facie evidence.[39] Riley likewise makes clear the applicants do not "bear any legal onus to displace it" [prima facie evidence] but rather they are cast an evidential burden that casts doubt on it.[40]

60. Though helpful as to the legal principles, the factual situations in Waite and Riley are not analogous. A water meter is not in the same class of instrument as a breath analysis instrument or a speed measuring gun in its level of calibration or in the adequacy and effectiveness of its testing. Understandably, given the number in circulation in the ACT, water meters are not routinely tested to determine they are correctly calibrated or working correctly except when they fail or are taken out of service and tested.

61. The only other similar case dealing with a complaint as to metered water consumption drawn to the Tribunal's attention was heard by the Essential Services Consumer Council, the body previously invested with jurisdiction, is Davey v ActewAGL.[41] In Davey case, the Council held that the water meter reading should be accepted as an accurate reading of consumption. In that matter the excessive use in dispute was 570 kL, the complainant had been absent from the property overseas for all but nine days of the billing period, and on receipt of the disputed invoice the complainant had taken no steps to have the water service or irrigation system on the property checked for leakages or faults. These factual differences set the current matter apart.

62. At its highest a statutory provision such as clause 15 gives rise in the applicants a burden to adduce evidence inconsistent with the prima facie evidence. It is then for the trier of fact to reach a view on the whole of the evidence.

63. The Tribunal is satisfied that the applicants have met this obligation. They are accepted as witnesses of truth.

64. The applicants' submission that they have put the delivery of the volume of water into contest is accepted.[42] On the whole of the available evidence the Tribunal is not satisfied to the requisite standard that the metered amount of water was consumed.

65. The Tribunal finds that the applicants' complaint is made out.

66. Pursuant to section 178(2)(b)(iii) of the Utilities Act 2000 the Tribunal is satisfied the applicants' complaint is made out, namely that the respondent has failed to provide them with a bill reasonably or reliably based on a reading of their water meter as required by the Consumer Protection Code.

67. The Tribunal directs the respondent pursuant to section 178(2)(b)(i) of the Utilities Act 2000 to remedy its failure by withdrawing the account issued on 8 January 2021 and accepting in full satisfaction as a reasonable estimate of usage for water consumption charges in the period 14 July 2020 to 14 November 2020 the amount of $480 paid by the applicants.

68. The Tribunal notes Mr Waterford's regular outbursts throughout the course of the hearing where his conduct was belligerent, argumentative and bombastic were uncalled for, and provided no assistance to the Tribunal.

69. The respondent met its obligation to assist the Tribunal in reaching the correct and preferable decision through its counsel's thorough and helpful submissions. Mr Porter was a competent and even-handed witness.

70. The Tribunal has an obligation under section 174 of the Utilities Act to advise the Minister and the ICRC of any systemic problems under Part 12 of the Act. This is in addition to its similar and broader obligation under section 105A of the ACAT Act. No such systematic problems were identified. The Tribunal's decision in this matter turns on its own particular facts. The decision does not mean every bill issued by the respondent to a customer above certain multiples of normal usage is suspect. It does not set up an obligation in the respondent to accept every such complaint. The respondent may benefit from having protocols in place where such accounts do arise such that as well as meter reading checks there is more immediate personal contact with the customer to identify all possible sources of excessive usage.

71. The ICRC may benefit from reviewing the "Disputes" section of the Metering Code, principally the effect of Clause 15. The clause as it currently reads affords prima facie status only to the "Metering Equipment" data. The meter is designed only to record and display cumulative usage over the life of the meter. Extending prima facie status to data stored elsewhere, such as consumption recordings from prior readings, would strengthen the effectiveness of the clause in similar disputes.

[1] The Utilities (Consumer Protection Code) Determination 2020 is an industry code determined by the Independent Competition and Regulatory Commission (ICRC) under the Utilities Act. The current code was determined by the ICRC and commenced on 1 July 2020.

[2] By Instrument No. 369 of 2000, the Minister for Urban Services determined the Water Metering Code to be a technical code in accordance with subsection 236(1) of the Utilities Act 2000

[3] Waite v Hennah [2021] WASCA 69

[4] J D Heydon, Cross on Evidence (LexisNexis: Online) at [1600]-[1605]

[5] J D Heydon, Cross on Evidence (LexisNexis: Online) at [1605] fn 4

[6] Citing a series of averment cases in the High Court of Australia

[7] Waite v Hennah [2021] WASCA 69 at [23], [64]

[8] John Eder Riley v Garth Christian Seip [2008] ACTSC 72

[9] Exhibit R1, statement of Bradley Porter dated 20 September 2021 at [13]

[10] Exhibit R1, statement of Bradley Porter dated 20 September 2021 at [16]

[11] Exhibit A3, statement of John Edward O'Brien Waterford dated 23 February 2022 at [3]

[12] Exhibit R1, statement of Bradley Porter dated 20 September 2021 at [4]; exhibit BP-2 pages 37-38

[13] Exhibit R1, statement of Bradley Porter dated 20 September 2021 at [37]; annexure E and annexure F

[17] Exhibit A1, statement of Susan Elizabeth Bennett dated 23 February 2022 at [11]

[18] Exhibit A1, statement of Susan Elizabeth Bennett dated 23 February 2022 at [8]

[19] Exhibit A1, statement of Susan Elizabeth Bennett dated 23 February 2022 at [6]

[20] Exhibit A1, statement of Susan Elizabeth Bennett dated 23 February 2022 at [9]; annexure A

[21] Exhibit A2, applicant's complaint dated on 15 March 2021 from Jack Waterford to ACAT EW complaints at [13]

[22] Exhibit A3, statement of John Edward O'Brien Waterford dated 23 February 2022

[23] Exhibit A3, statement of John Edward O'Brien Waterford dated 23 February 2022 at [11]-[17]

[24] Exhibit A3, statement of John Edward O'Brien Waterford dated 23 February 2022 at [20]-[21]

[25] Exhibit A3, statement of John Edward O'Brien Waterford dated 23 February 2022 at [22]

[26] Respondent's submissions filed 21 September 2021 at [7]

[27] Respondent's submissions filed 21 September 2021 at [9]

[28] Respondent's submissions filed 21 September 2021 at [18]

[29] Respondent's submissions filed 21 September 2021 at [33]

[30] The applicants complain the respondent has not met its obligation under clause 13 to provide a bill which is reasonably or reliably based on a reading of their meter.

[31] Waite v Hennah [2021] WASCA at [85]

[32] Waite v Hennah [2021] WASCA at [80]

[33] Waite v Hennah [2021] WASCA at [81]

[34] Respondent's submissions in respect of the status to be afforded to prima facie evidence filed 21 September 2021 at [9]-[10], [19], [21]

[35] Waite v Hennah [2021] WASCA at [87]

[36] Waite v Hennah [2021] WASCA at [87]

[37] Exhibit R1, statement of Bradley Porter dated 20 September 2021 at [16]

[38] Waite v Hennah [2021] WASCA at [80]

[39] Waite v Hennah [2021] WASCA at [88]

[40] John Eder Riley v Garth Christian Seip [2008] ACTSC 72 at [41]

[41] Davey v ActewAGL [2001] ACTESCC 10

[42] Applicants' submissions in respect of the status to be afforded to prima facie evidence filed 17 February 2022 page 3