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[2025] HCA 48
appellant. Special leave to appeal granted; appeal allowed; order 2 made on 24 January 2025 set aside; no order as to costs of the special leave application or appeal.
6 cited instruments linked from this judgment.
The High Court set aside a Northern Territory Court of Appeal order that had dismissed a tenants' judicial review proceeding. The Court of Appeal had earlier declined to accept the referral that would have given it jurisdiction to determine the relevant declaration. Because it had not accepted the referral, it lacked jurisdiction to determine the relief. The High Court did not decide whether the minister's rent determination was valid. The proceeding remained to be dealt with by the Supreme Court of the Northern Territory unless otherwise resolved.
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2,067 words · generated 03/10/2026
The applicants were tenants of three houses in remote communities in the Northern Territory. They were challenging decisions about rent payable by public housing tenants. The particular proceeding in this appeal concerned a ministerial determination made on 1 February 2023, called the “Fourth Determination” in the judgment. It fixed rent under s 23 of the Housing Act 1982 (NT), and, in substance, excluded some communities from earlier determinations. The applicants’ communities were not excluded [2]-[3].
The applicants started the Fourth Determination Proceeding on 31 March 2023. Among other relief, they sought “declaration numbered 1”. That declaration raised whether the Fourth Determination gave rise to a rent increase, or whether an increase in the percentage of income used to calculate rent was unlawful under s 41 of the Residential Tenancies Act 1999 (NT), for tenancy agreements containing a specified rent term [3].
On 30 August 2023, Grant CJ referred that declaration to the Full Court under s 21(1) of the Supreme Court Act 1979 (NT) [4]. When the referral and a related appeal came before the Court of Appeal on 15 November 2023, both sides submitted that the Court should decline the referral. Grant CJ did so. Although there was no formal order declining it, an email from his Associate said that the referral had been declined under s 21(2), and the parties proceeded on that basis [4].
No oral submissions were made about the Fourth Determination Proceeding at that hearing. In reasons delivered on 24 January 2025, the Court of Appeal addressed the proceeding and made an order dismissing the application for judicial review [5]-[6]. The applicants challenged that dismissal order in the High Court.
The High Court’s order was procedural and jurisdictional. It granted special leave, allowed the appeal and set aside the Court of Appeal’s dismissal order [13]. It did not decide whether the Fourth Determination was valid, whether it increased rent, or whether the relevant rent increases were lawful. The Court expressly said that the proceeding remained extant and would need to be heard and determined by the Supreme Court of the Northern Territory unless otherwise resolved [10].
The decisive point was the relationship between ss 15 and 21 of the Supreme Court Act 1979 (NT). Section 15 addresses how the Supreme Court’s jurisdiction, other than its appellate jurisdiction, is exercised: by the Full Court, or, where not expressly assigned to the Full Court, by one Judge. Section 21(1) allows a Judge hearing a proceeding, other than one in the Court of Appeal, to refer the proceeding or part of it to the Full Court. The Full Court may accept, decline or accept only part of a referral [8]-[9].
The Court treated it as undisputed that the Court of Appeal was the Full Court for the relevant statutory purpose. Had it accepted the referral, it would have had jurisdiction to hear and determine declaration numbered 1. But it declined the referral under s 21(2)(b). The High Court concluded: “It follows that the Court of Appeal did not have jurisdiction to hear and determine the relief sought” [9].
That reasoning is narrow and tied to the statutory referral. The Court did not hold that the Full Court lacks jurisdiction over all matters of this kind. Rather, it held that this Court had not accepted the referral that would have provided jurisdiction to determine the referred relief. The parties’ earlier agreement that the referral should be declined, and the absence of oral submissions about the proceeding, form part of the background. The jurisdictional conclusion, however, rested on the statutory position after the referral was declined [4], [9].
The High Court also addressed uncertainty about the scope of the Court of Appeal’s order. The referral covered only declaration numbered 1, but the later order dismissed “the application for judicial review” in the Fourth Determination Proceeding. The Court said it was unclear whether the order dismissed only the referred declaration or all the relief in the proceeding [11]. That question did not need to be resolved. On either possible reading, the Court of Appeal lacked jurisdiction to make the order [12].
The parties agreed that special leave should be granted, the appeal allowed and the order set aside. They also agreed that each should bear its own costs. The High Court made no order as to costs of the application for special leave or the appeal [9], [13].
The judgment applied the existing statutory framework in ss 15 and 21 of the Supreme Court Act 1979 (NT). It did not amend that framework or decide the substantive operation of the Housing Act, the Residential Tenancies Act, or the regulations governing rent. The immediate legal position before the High Court’s decision was that the Court of Appeal had made an order dismissing the proceeding, despite having declined the referral. The High Court set that order aside because the Court of Appeal lacked jurisdiction [6], [9], [13].
After the decision, the dismissal order was no longer in force. The Fourth Determination Proceeding remained on foot, unless otherwise resolved, and the Supreme Court of the Northern Territory remained to hear and determine it [10]. The High Court did not substitute a decision on the validity of the rent determination or grant the declaration sought.
The judgment also makes observations about interpreting court orders. The Court said an order should be sufficiently clear to be complied with and enforced by reference to its text [12]. It added that there is no threshold rule barring consideration of extrinsic context when interpreting a written instrument. For an ambiguous order, the reasons may be relevant; in an appropriate case, the pleadings, evidence and conduct of the case may also be considered [12]. These comments were expressly unnecessary to resolving this appeal, because the jurisdictional defect disposed of it [12].
The reasons are to be read together with the High Court’s related decision in Badari v Minister for Territory Families and Urban Housing [2025] HCA 47, which concerned the validity of earlier rent determinations [1]. This appeal itself did not decide those substantive rent questions.
At [8], the Court explained that ss 15 and 21 work together to allocate the Supreme Court’s non-appellate jurisdiction and to allow a Judge to refer a proceeding or part of it to the Full Court. In plain English, the referral mechanism matters because it is the route by which this particular issue could be placed before the Full Court.
At [9], the Court said: “If the Court had accepted the Referral made by Grant CJ, then the Court would have had jurisdiction to hear and determine the application for declaration numbered 1.” The qualification is important. The Court did not say that merely receiving or discussing the referral was enough. Acceptance was the relevant jurisdictional step.
The same paragraph states: “It follows that the Court of Appeal did not have jurisdiction to hear and determine the relief sought.” In plain English, after declining the referral, the Court of Appeal could not go on to decide the referred matter as if the referral had been accepted. The High Court applied that conclusion to the order dismissing the proceeding.
At [10], the Court said the proceeding “remains extant” and would need to be determined by the Supreme Court unless otherwise resolved. That passage prevents a mistaken reading of the High Court’s result as a final ruling for either side on the rent issue. The appeal removed the dismissal order; it did not resolve the underlying claim.
At [12], the Court observed that orders should be clear enough to be understood and enforced from their text. But it also said there is “no threshold requirement” before extrinsic context can be considered. The translation is that the wording of an order is central, but where the wording is ambiguous, a court may look to reasons and, if necessary, other materials to understand what the order decided. Here, the Court did not finally interpret the order’s scope because it was unnecessary to the outcome.
The central fact pattern is a statutory referral to a Full Court, followed by the Full Court declining that referral, and then purporting to determine the referred matter. In this case, a Judge had referred a particular declaration under s 21(1); the Full Court declined it under s 21(2); and the Court of Appeal later made an order dismissing the wider proceeding [4]-[6].
The decision is most directly relevant where the statutory source of the Full Court’s authority depends on acceptance of a referral, and the record shows that the referral was declined. It also illustrates the importance of identifying exactly what was referred. Here, the referral was of declaration numbered 1, while the eventual order referred more broadly to dismissal of the application for judicial review [3], [11].
A separate, more limited point may matter where the terms of a court order are ambiguous. The judgment says the reasons for judgment can assist in interpreting an order, and that wider material, including pleadings, evidence and the conduct of the case, may be relevant in a given case [12]. The High Court did not apply that approach to reach a conclusion about the exact scope of the order in this case; it left that ambiguity unresolved.
The case does not decide the validity of ministerial rent determinations, the interpretation of s 41 of the Residential Tenancies Act, or the rent consequences of the relevant tenancy terms. Those matters belonged to the still-extant proceeding or the related appeal, not the jurisdictional issue resolved here [1], [3], [10].
The supplied judgment contains no account of later courts applying, distinguishing or otherwise treating Badari. It was decided on 3 December 2025, and the text does not provide any later judicial history. No claim about subsequent treatment can therefore be grounded in this source.
The judgment does identify authorities relevant to its observations on interpreting orders and written instruments. At [12], it cites Hogan v Hinch (2011) 243 CLR 506 and ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 in support of the need for clear court orders, particularly injunctions. It cites Doyle v Commissioner of Police (NSW) [No 2] (2020) 281 A Crim R 357 for the use of reasons when interpreting an ambiguous order, and Owston Nominees No 2 Pty Ltd v Branir Pty Ltd (2003) 129 FCR 558 for the possible relevance of pleadings, evidence and how a case was conducted [12]. The judgment cites those authorities; it does not set out their full reasoning.
The Court also says these reasons should be read with Badari v Minister for Territory Families and Urban Housing [2025] HCA 47, the related appeal concerning three earlier rent determinations [1]. That is a companion decision, not subsequent treatment of this judgment.
The principal open question was the scope of the Court of Appeal’s order. Because the referral related only to declaration numbered 1, but the order dismissed the application for judicial review, it was unclear whether the order extended to all relief in the proceeding or only the referred declaration [11]. The High Court expressly did not resolve the ambiguity, because the jurisdictional defect applied on either view [12].
The underlying proceeding also remained unresolved. The High Court said it would need to be heard and determined by the Supreme Court of the Northern Territory unless otherwise resolved [10]. The judgment does not decide whether the Fourth Determination was valid, whether it produced a rent increase for the applicants, or whether an increase in the percentage of income used to set rent was unlawful under the provisions identified in the declaration [3].
More generally, the decision does not answer how the Northern Territory court would decide the applicants’ substantive claims, or what evidence and arguments would be material to them. Nor does it determine how the interpretive observations at [12] would apply in a case where the scope of an order had to be decided to dispose of the proceeding. Those matters were outside the issue necessary to the High Court’s decision.
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Source: the High Court of Australia (www.hcourt.gov.au). Converted to plain text by ZoeLaw. Not the official version.
HIGH COURT OF AUSTRALIA
GAGELER CJ,
GORDON, EDELMAN, STEWARD AND GLEESON JJ
ASHER BADARI & ORS APPLICANTS
AND
MINISTER FOR HOUSING AND
HOMELANDS & ANOR RESPONDENTS
Badari v Minister for Housing and Homelands
[2025] HCA 48
Date of Hearing: 3 September 2025
Date of Judgment: 3 December 2025
D1/2025
ORDER
Special leave to appeal is granted.
The appeal is allowed.
Order 2 made on 24 January 2025 by the Court of Appeal and the Full Court of the Supreme Court of the Northern Territory be set aside.
There be no order as to costs of the application for special leave to appeal and resulting appeal.
On appeal from the Supreme Court of the Northern Territory
Representation
M L L Albert with M A Benn for the applicants (instructed by Australian Lawyers for Remote Aboriginal Rights)
C L Lenehan SC with R S Amamoo for the respondents (instructed by Solicitor for the Northern Territory)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Badari v Minister for Housing and Homelands
Practice and Procedure – Jurisdiction – Jurisdiction of the Full Court of the Supreme Court of the Northern Territory on referral under ss 15 and 21 of Supreme Court Act 1979 (NT) – Where application for declaration referred for determination by the Full Court – Where the Full Court declined to accept the referral – Where parties subsequently made no submissions to the Full Court regarding application for declaration – Where the Full Court subsequently purported to order that application for declaration be dismissed – Whether the Full Court had jurisdiction to order dismissal of application – Whether regard may be had to extrinsic material in interpreting the Court's order.
Words and phrases – "decline to accept referral", "determination", "extrinsic material", "jurisdiction", "order", "public housing", "referral", "remote communities", "rent", "special leave to appeal", "tenant".
Housing Act 1982 (NT), s 23.
Housing Regulations 1983 (NT).
Residential Tenancies Act 1999 (NT), s 41.
Residential Tenancies Regulations 2000 (NT), Sch 2 cl 2.
Supreme Court Act 1979 (NT), ss 15, 18, 21.
GAGELER CJ, GORDON, EDELMAN, STEWARD AND GLEESON JJ. The applicants seek special leave to appeal from an order of the Court of Appeal and the Full Court of the Supreme Court of the Northern Territory (hereinafter the "Court of Appeal") given on 24 January 2025. On 9 May 2025, the application for special leave was referred to a Full Court to be heard with the related matter in Badari v Minister for Territory Families and Urban Housing ("Badari (D7/2025)"), which concerned the validity of three successive determinations made by the minister responsible for the Housing Act 1982 (NT) (the "Relevant Minister"), pursuant to s 23 of the Housing Act and the Housing Regulations 1983 (NT), as to the amount of rent payable by tenants of public housing. Although this application raises distinct and separate issues of jurisdiction, these reasons should be read together with the reasons of this Court in that related appeal.1
The applicants are tenants of three houses located in remote communities in the Northern Territory. They are also the appellants in Badari (D7/2025).
After the applicants had filed their notice of appeal to the Court of Appeal on 7 December 2022 in relation to the first three determinations (the "COA Appeal"), the Relevant Minister made a further determination fixing rent payable pursuant to s 23 of the Housing Act on 1 February 2023 (the "Fourth Determination"), which in substance excluded a number of communities from the effects of the previous determinations. Since the applicants' communities were not excluded, they commenced a new proceeding in the Supreme Court of the Northern Territory on 31 March 2023, in which they challenged the validity of the Fourth Determination (the "Fourth Determination Proceeding"). Part of the relief sought was the following declaration which came to be described as "declaration numbered 1":
"A declaration of right pursuant to s 18(1) of the Supreme Court Act 1979 (NT) that:
a. part (b) of the Determination of Rent Payable for Dwellings dated 1 February 2023 made by the first defendant ... purportedly pursuant to s 23 of the Housing Act 1982 (NT) does not give rise to any rent increase; and/or
b. any rent increase by way of an increase in the percentage of income used to set the rent to be paid is and was unlawful
having regard to s 41 of the Residential Tenancies Act 1999 (NT) for those tenancy agreements in which the operative rent quantification term is that, or is the same as that, provided in clause 2(2) of Schedule 2 of the Residential Tenancies Regulations 2000 (NT)."
On 30 August 2023, Grant CJ made an order pursuant to s 21(1) of the Supreme Court Act 1979 (NT) that the application for declaration numbered 1 be referred for determination by the Full Court (the "Referral"). On 15 November 2023, both the COA Appeal and the Referral were called on for hearing before the Court of Appeal comprising Grant CJ, Barr J and Huntingford AJ. At that hearing, both the applicants and the respondents submitted that the Court of Appeal should decline to accept the Referral. Grant CJ then stated that he rejected his Honour's own reference. That evening, the lawyers for all parties received an email from the Associate to Grant CJ, which amongst other things said "[t]he reference to the Full Court is declined pursuant to s 21(2) of the Supreme Court Act (NT)". Although no formal order was made declining to accept the Referral, it was not in dispute that the statement by Grant CJ and the note to the parties was sufficient to decline the Referral under s 21(2) of the Supreme Court Act. The parties also proceeded in the Court of Appeal on that basis.
No oral submissions were made to the Court of Appeal about the Fourth Determination Proceeding. The Court of Appeal delivered its reasons on 24 January 2025.2 The Court of Appeal purported to decide not just the Referral, but, on one view, all of the relief sought in the Fourth Determination Proceeding. The reasons stated as follows:3
"As stated at the outset, the second matter to be determined is an adjunct to the appeal from the decision of the trial judge. It is an application for judicial review seeking, amongst other relief, a declaration that the fourth Determination of Rent Payable for Dwellings dated 1 February 2023 made in purported pursuance of s 23 of the Housing Act was ultra vires by operation of s 41 of the [Residential Tenancies Act 1999 (NT)] and cl 2(2) of Sch 2 of the [Residential Tenancies Regulations 2000 (NT)]. It raises the same issues as have been determined above for the purpose of the appeal, and attracts the same findings."
"The application for judicial review of the Fourth Determinations in proceedings 2023-01110-SC is dismissed."
It is that order which is the subject of the present application for special leave.
Section 15 of the Supreme Court Act relevantly provides that "[t]he jurisdiction of the Court, other than its appellate jurisdiction, is exercisable ... by the Full Court; [or] where it is not expressly provided that the jurisdiction of the Court shall be exercised by the Full Court, by one Judge ...". Section 15 is to be read with s 21(1), which permits the Judge hearing a proceeding "not being a proceeding in the Court of Appeal ... [to] refer that proceeding or part of that proceeding to the Full Court". The Full Court may accept, decline, or accept in part only, a reference made pursuant to s 21(1).4
It was not in dispute that the Court of Appeal was relevantly the Full Court for the purposes of s 15 of the Supreme Court Act. If the Court had accepted the Referral made by Grant CJ, then the Court would have had jurisdiction to hear and determine the application for declaration numbered 1. However, pursuant to s 21(2)(b) of the Supreme Court Act, the Court "declined" to accept that Referral. It follows that the Court of Appeal did not have jurisdiction to hear and determine the relief sought. Special leave should be granted and the resulting appeal should be allowed. The parties agree that those orders should be made. The parties also agree that they should each bear their own costs of the special leave application and resulting appeal.
The Fourth Determination Proceeding thus remains extant and will need to be heard and determined by the Supreme Court of the Northern Territory, unless otherwise resolved.
Given that what was the subject of the Referral was only one of the grounds of relief in the Fourth Determination Proceeding, it was unclear whether the order of the Court of Appeal was confined to declaration numbered 1 or whether it extended to all of the relief sought by the applicants in that proceeding.
It is strictly unnecessary to resolve this ambiguity. On any view, as explained above, the Court of Appeal lacked jurisdiction to make the order. Court orders should be drafted in clear and unambiguous terms, so that they can be complied with, and, if necessary, enforced, without the need to consider anything but the text of the order.5 But, as is generally the case with the interpretation of written instruments, there is no threshold requirement before extrinsic context can be considered. Indeed, where an order is ambiguous it may be necessary to consider the reasons of the court so that the court order gives effect to the judgment, being the source of the order.6 And, in a given case, an examination of a wider set of materials may be needed; this might include looking to "the pleadings and, if necessary, the evidence and how the case was conducted".7
a. Special leave to appeal is granted.
b. The appeal is allowed.
c. Order 2 made on 24 January 2025 by the Court of Appeal be set aside.
d. There be no order as to costs of the application for special leave to appeal and resulting appeal.
[2025] HCA 47. ↩
Badari v Minister for Territory Families and Urban Housing (2025) 393 FLR 73. ↩
Badari v Minister for Territory Families and Urban Housing (2025) 393 FLR 73 at 124 [160]. ↩
Supreme Court Act, s 21(2). ↩
This is especially so with injunctions: Hogan v Hinch (2011) 243 CLR 506 at 546 [58]; ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 at 259-262. ↩
Doyle v Commissioner of Police (NSW) [No 2] (2020) 281 A Crim R 357 at 371 [58] and the authorities cited. ↩
Owston Nominees No 2 Pty Ltd v Branir Pty Ltd (2003) 129 FCR 558 at 569 [27] (citations omitted). ↩
Badari
Minister for Housing and Homelands [2025] HCA 48
(2025) 393 FLR 73
(2011) 243 CLR 506
(1992) 38 FCR 248
(2003) 129 FCR 558
Special leave to appeal granted; appeal allowed; order 2 made on 24 January 2025 set aside; no order as to costs of the special leave application or appeal.