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[2025] ACTSC 122
General information, not legal advice.
Supreme Court of the ACT
2025-03-28
Mossop J
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Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: House v ACT Citation: [2025] ACTSC 122 Hearing Date: 28 March 2025 Decision Date: 28 March 2025 Before: Mossop J Decision: See [28] Catchwords: HUMAN RIGHTS – EXTENSION OF TIME – Where one-year limitation period for starting proceedings against a public authority applies pursuant to s 40C(3) of the Human Rights Act “unless the court orders otherwise” – where leave only required for one paragraph of pleadings and proceedings otherwise commenced within time – whether pleadings adequately allege how breaches of ss 8(2) and 27(2) of the Human Rights Act occurred – effect of adequacy of pleadings on court’s discretion to otherwise order – extension of time not granted – leave granted to file amended pleading Legislation Cited: Court Procedures Rules 2006 (ACT), r 425 Human Rights Act 2004 (ACT), ss 8, 27, 40B, 40C Legislation Act 2001 (ACT), s 145 Cases Cited: Comcare v A’Hearn (1993) 45 FCR 441 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Parties: Paul Girrawah House (First Plaintiff) Leah Matilda House (Second Plaintiff) Australian Capital Territory (First Defendant) ACT Minister for Heritage (Second Defendant) Representation: Counsel S Fitzgerald (First and Second Plaintiff) C Lenehan SC with J Dempster (First Defendant) Solicitors Griffin Legal (First and Second Plaintiff) ACT Government Solicitor (First Defendant) File Number: SC 381 of 2024 MOSSOP J: Introduction
Background
The plaintiffs brought earlier proceedings claiming that the existence of a protocol promulgated by the ACT Executive which recognised the Ngunnawal people as the traditional custodians of the land which is now the Australian Capital Territory involved a breach of ss 27(2) and 40B of the HR Act. Section 27(2) is a provision of the HR Act which says that Aboriginal and Torres Strait Islander peoples must not be denied certain cultural rights. Section 40B is the provision which makes it unlawful for a public authority to act in a way that is incompatible with a human right or fails to give proper consideration to a relevant human right. As a result of the earlier proceedings, the plaintiffs and the Australian Capital Territory entered into a deed of settlement and release on 26 April 2023 (Settlement Deed). In clause 3 of the Settlement Deed, the Territory took on certain obligations, and in clause 4 it gave certain undertakings as to things that it would do.
By an originating claim and statement of claim filed 18 November 2024, the plaintiffs now claim: (a) a declaration that there have been failures to comply with the Settlement Deed in various enumerated respects; and (b) relief under s 40C(6) of the HR Act in relation to various identified alleged contraventions of the HR Act by the Territory and an alleged contravention of the HR Act by the Minister for Heritage.
It is one of the alleged breaches of the HR Act which is the subject of the present application for an extension of time, because the last act which is complained of occurred more than a year prior to the commencement of the proceedings. The allegation that there has been a breach of the Settlement Deed does not require any extension of time. The other allegations of breaches of human rights do not require an extension of time because they are alleged to involve ongoing acts or omissions on the part of the Territory. Application in proceeding filed 28 January 2025
The grounds of the application in proceeding filed 28 January 2025 are: 1. Pursuant to section 40 of the HRA the first defendant is a public authority. 2. Section 40C(3) of the HRA requires a claim against a public authority to be started within 1 year after the day (or the last day) the act complained of happens, unless the court orders otherwise. 3. At paragraph 20 of the plaintiffs Statement of Claim, re-filed on 28 November 2024, the plaintiffs state: “The first defendant has discouraged express recognition of the traditional connection of the Ngambri peoples with the land that is now the ACT”. 4. The plaintiffs rely on acts that occurred over 1 year before proceedings were commenced, namely the following: a. Ministerial Brief dated 24 May 2023 from Executive Group Manager, Strategic Policy to ACT Minister for Aboriginal and Torres Strait Islander Affairs. b. Letter from ACT Minister for Aboriginal and Torres Strait Islander Affairs to Commonwealth Minister for the Public Service dated 13 June 2023. c. Letter from ACT Minister for Aboriginal and Torres Strait Islander Affairs to Commonwealth Minister for Indigenous Australians dated 13 June 2023. d. Letter from ACT Minister for Aboriginal and Torres Strait Islander Affairs to CEO Reconciliation Australia dated 13 June 2023. 5. The plaintiffs have taken ongoing steps in relation to the complaint made in paragraph 20 during the 1 year period since these acts occurred, including: a. On 18 September 2023, by writing to the Government Solicitor in relation to the first defendant’s ongoing breach of the HRA; b. On 21 September 2023, by lodging a Freedom of Information (FOI) request seeking documents in relation to the recognition of our client’s history, of which those documents were not received until 28 November 2023; and c. On 1 March 2024, by writing to the Government Solicitor in relation to their continuing breach of the HRA. 6. The plaintiffs did not become aware of the acts until after they received the documents on 28 November 2023, pursuant to an FOI request. 7. The acts relied on in support of paragraph 20 of the Statement of Claim are all over 1 year old and this issue will not be ventilated if leave is not granted. 8. The acts occurred after the settlement of the earlier proceedings and could not have been raised in that claim.
The second defendant in the claim, the ACT Minister for Heritage, is not affected by the paragraph of the statement of claim the subject of the application for an extension of time. Therefore, the application was contested by the plaintiffs and the Territory as the first defendant.
Relevant provisions of the HR Act
For present purposes, the most relevant provisions are as follows: (a) Section 40B makes it unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right. (b) Section 40C permits a person to commence proceedings claiming that a public authority has acted in contravention of s 40B. (c) The limitation provision is in s 40C(3), which provides: “A proceeding under subsection (2) (a) must be started not later than 1 year after the day (or last day) the act complained of happens, unless the court orders otherwise.” Section 40C(4) accommodates a longer period in certain circumstances where a complaint to the Human Rights Commission has been made (not relevant here). (d) Under s 40C(6), the Supreme Court may grant the relief it considers appropriate except damages. (e) Section 8 of the HR Act provides: 8 Recognition and equality before the law (1) Everyone has the right to recognition as a person before the law. (2) Everyone has the right to enjoy their human rights without distinction or discrimination of any kind. (3) Everyone is equal before the law and is entitled to the equal protection of the law without discrimination. In particular, everyone has the right to equal and effective protection against discrimination on any ground. Examples of discrimination Discrimination because of race, colour, sex, sexual orientation, language, religion, political or other opinion, national or social origin, property, birth, disability or other status. (f) Section 27 of the HR Act provides: 27 Cultural and other rights of Aboriginal and Torres Strait Islander peoples and other minorities (1) Anyone who belongs to an ethnic, religious or linguistic minority must not be denied the right, with other members of the minority, to enjoy their culture, to declare and practise their religion, or to use their language. (2) Aboriginal and Torres Strait Islander peoples hold distinct cultural rights and must not be denied the right— (a) to maintain, control, protect and develop their— (i) cultural heritage and distinctive spiritual practices, observances, beliefs and teachings; and (ii) languages and knowledge; and (iii) kinship ties; and (b) to have their material and economic relationships with the land and waters and other resources with which they have a connection under traditional laws and customs recognised and valued. Note The primary source of the rights in s (2) is the United Nations Declaration on the Rights of Indigenous Peoples, art 25 and art 31. The relevant part of the pleadings
Although, in general terms, the nature of the claim made in paragraph 20 is outlined in the passage quoted earlier, it is important to understand precisely the pleaded claim which is the subject of an application for an extension of time by reference to other paragraphs of the pleadings that give context to paragraph 20: 3. The plaintiffs are Aboriginal peoples who identify as Ngambri (Kamberri) peoples. 4. The Ngambri (Kamberri) peoples have a connection with land in the Australian Capital Territory (ACT) under traditional laws and customs for the purposes of s 27(2) of the HRA, and a traditional affiliation with land in the ACT for the purposes of s 14 of the Heritage Act. … First Defendant’s breaches of the Human Rights Act 2004 (ACT) 20. The first defendant has discouraged express recognition of the traditional connection of the Ngambri peoples with the land that is now the ACT. Particulars Ministerial Brief dated 24 May 2023 from Executive Group Manager, Strategic Policy to ACT Minister for Aboriginal and Torres Strait Islander Affairs. Letter from ACT Minister for Aboriginal and Torres Strait Islander Affairs to Commonwealth Minister for the Public Service dated 13 June 2023. Letter from ACT Minister for Aboriginal and Torres Strait Islander Affairs to Commonwealth Minister for Indigenous Australians dated 13 June 2023. Letter from ACT Minister for Aboriginal and Torres Strait Islander Affairs to CEO Reconciliation Australia dated 13 June 2023. 21. The first defendant continues to exclusively reference the traditional connection of the Ngunnawal peoples with the land that is now the ACT on public signage within the ACT, and fails to refer to the traditional connection of the Ngambri peoples (and other peoples who have a traditional connection) with the land that is now the ACT. Particulars The first defendant continues to display "Welcome to Ngunnawal country" signs, including at the following borders of the ACT: • Federal Highway; • Barton Highway; • Monaro Highway; • Canberra Avenue; • Kings Highway; • Yass Road/Sutton Road. Further, the first defendant displays signs at major landmarks including national parks and other conservation reserves. 22. The first defendant has otherwise failed to recognise the traditional connection of the Ngambri peoples with the land that is now the ACT at all, or when recognising the traditional connection of the Ngunnawal people with the land that is now the ACT. Particulars Examples of this failure include: In a media release dated 21 February 2024 issued by the second defendant in relation to the release of the ACT Heritage Jurisdictional Review Consultation Report, the second defendant stated that the nation's capital was "in the heart of Ngunnawal Country" and did not acknowledge the existence or connection of Ngambri people. The plaintiffs were not consulted when preparing the Design Guides issued by the first defendant, including the Housing Design Guide 2024, the Urban Design Guide 2024, the City Centre Urban Design Guide 2024 and the Biodiversity Sensitive Urban Design Guide 2024. The first defendant consulted with the Ngunnawal people when preparing the publications. The first defendant published stories and artwork by Ngunnawal people on the ACT light rail network which include a statement that "this is the land of the Ngunnawal people", did not invite the Ngambri people to do the same and did not recognise the Ngambri connection to the land that is now the ACT. The Housing Design Guide 2024 includes as Design Element 1.1 ''Ngunnawal Cultural Resonance: The interconnections between Ngunnawal people and all its value past, present and future is a foundational element of planning for the future development of the ACT" whereas no mention is made of the Ngambri people. The first defendant invited the Ngunnawal people to name the new Acton Waterfront, and did not at any time acknowledge or extend this invitation to the Ngambri people. 23. The first defendant's failure to perform the Undertakings in the settlement agreement and failure to comply with the assurance in Schedule 3 of the Deed: (a) undermines the recognition of the plaintiffs' traditional connection with land in the ACT as Ngambri peoples; (b) denies the Ngambri peoples the rights: (i) to maintain control protect and develop their: (aa) cultural heritage and distinctive spiritual practices observances beliefs and teachings; and (bb) languages and knowledges; (ii) to have their material and economic relationships with the land and waters and other resources with which they have a connection in traditional laws and customs recognized and valued. 24. The circumstances of the present facts where acts inconsistent with the recognition, valuing or protection of the plaintiff's cultural heritage rights continue to occur on a regular basis since the Settlement Agreement, examples of which are referred to in paragraph [22] above, the failure to perform the Undertakings in the settlement agreement and the failure to comply with the assurance in Schedule 3 of the Deed are a denial of the plaintiff's cultural rights. 25. In making the decisions and taking the actions referred to above in paragraphs 20, 21, 22, 23 and 24 above, the first defendant contravened s 40B of the HRA by acting in a way that is incompatible with the plaintiffs’ human rights in s 27(2) and s 8(2) of the HRA in failing to give proper consideration to those rights.
Chronology
Submissions
The plaintiffs placed particular reliance upon the fact that the various documents particularised at paragraph 20 only came to their attention as a result of the Territory’s response to a freedom of information request which was answered on 28 November 2023.
The plaintiffs submitted that it is appropriate to grant an extension of time in circumstances where the plaintiffs did not receive the relevant documents until 28 November 2023 and where they had been making complaints about alleged non-compliance with the Settlement Deed since prior to that date. In their 1 March 2024 letter, they also raised with the ACT Government Solicitor the conduct disclosed in the freedom of information documents three months after having become aware of it.
The plaintiffs submitted that the court does not need to undertake a full investigation of the merits of the claim and paragraph 20, but they are not without merit. They drew attention to the link between the requests made by the Ngunnawal community and the actions of the Minister.
The submissions made on behalf of the first defendant were that the plaintiffs have failed to provide a complete explanation for the delay in commencing proceedings in circumstances where they had access to the relevant material from 28 November 2023, were at all relevant times legally represented, and made complaints about those documents on 1 March 2024. The defendant noted the absence of any substantive response to the letter of 22 August 2024, during the period when the current claim was being prepared. It emphasised the significance of the one-year limitation period and the prejudice presumed to arise where that limitation period was not complied with.
The first defendant also asserted that the claim lacked merit because there was “nothing in the contents of the brief or the letters which can establish a contravention of s 40B” or to establish that the first defendant “discouraged express recognition of the traditional connection of the Ngambri peoples with the land that is now the ACT”. It submitted that an inference to that effect is not available on the face of the documents. So far as the operation of s 27(2) is concerned, the first defendant accepted that there has been little judicial consideration of that subsection, but submitted that none of the material upon which the plaintiffs rely raises any tenable case for suggesting that the provision has been contravened.
Consideration
The parties were in agreement that, for the purposes of an extension of time, considerations such as those summarised by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 and Comcare v A’Hearn (1993) 45 FCR 441 were relevant. There was some debate as to the extent to which the merits of the claim could be investigated but it is not necessary, for present purposes, to analyse in any detail the cases on that issue. The relevant matters to consider can, in these circumstances, be described as: (a) the explanation for the delay; (b) the prejudice to the defendant; (c) the merits of the plaintiffs’ substantive claim; and (d) considerations of fairness and the proper administration of justice.
The evidence discloses a partial explanation for the delay. There is a good explanation for the delay up to 28 November 2023. There is not a good explanation for the delay in the period after 1 March 2024, by which time it is clear that the plaintiffs were aware of, and had legal advice in relation to, the documents the subject of paragraph 20. It must be borne in mind, however, that the claim in paragraph 20 is a small part of a larger claim which raises other issues.
The first defendant accepted that there is no relevant prejudice as a result of this aspect of the plaintiffs’ claim being out of time if an extension were to be granted.
So far as the merits of the claim are concerned, it is necessary to have regard to them so far as they may be discerned. There are a number of points that need to be made about the merits of the claim. (a) The fact pleaded is that the first defendant has discouraged express recognition of the traditional connection of the Ngambri peoples with the land that is now the ACT. The defendant is correct to say that the letters, on their face, do not support that allegation. However, it is necessary to read the letters in the context of the ministerial brief which led to their signature. That leaves open a possible finding of fact that the letters were written in response to complaints or requests made by representatives of the Ngunnawal peoples to alter the approach that was being taken by Commonwealth instrumentalities. That would cast a different light upon the otherwise bland text of the letters sent and provides an arguable basis for a conclusion that, rather than simply informing the Commonwealth of the Territory government’s approach, they were intended to deter the Commonwealth from adopting an approach that gave express recognition to the Ngambri peoples, as distinct from an indirect recognition contemplated in the interim Indigenous Protocols which formed part of the Settlement Deed. However, the baldness of the claim, being a single assertion of fact which raises only the contents of the documents and would not permit evidence on the factual circumstances underlying those documents or the likely consequences of them being sent, is notable. (b) The pleaded claim provides only a limited basis for an assertion that the conduct pleaded in paragraph 20 could amount to a breach of s 27(2) of the HR Act. The obligations in s 27(2) are specific ones which arise from the precise language used. As pointed out earlier, the pleadings only disclose facts relevant to a claim that the conduct in paragraph 20 breached the plaintiffs’ rights under s 27(2)(b). The pleadings do not disclose how any identified aspect of s 27(2)(b) could be affected by the writing of letters in the absence of any pleading identifying any actual or possible consequence of the sending of the communications to the Commonwealth. (c) So far as s 8(2) is concerned, although this is pleaded, no declaratory relief is sought in relation to an alleged breach of s 8(2) in the statement of claim or indeed in the originating claim and, as a result, its inclusion is embarrassing in the sense in which that word is used in r 425 of the Court Procedures Rules 2006 (ACT). Had relief been sought, it would have been necessary to plead additional facts in order to permit the first defendant to understand in what way the plaintiffs said that their rights under the paragraph were being infringed. As pointed out earlier, counsel for the plaintiffs accepted that this was an issue that the plaintiffs should be required to remedy. (d) The application for an extension of time arises because both the ministerial brief and the subsequent letters were brought into existence and signed in either May or June 2023. Insofar as the preparation of the ministerial brief and the consideration and signing of the letters were discrete acts relied upon in order to establish a breach of s 27(2), they occurred more than one year prior to the commencement of proceedings. As a consequence, they were captured by the limitation period in s 40C(3). Section 40C(3) refers to the “day (or last day) the act complained of happens”. Thus, if the pleadings are interpreted as alleging discrete acts in May and June 2023, then they are clearly out of time. If, on the other hand, the pleadings were interpreted as alleging the series of acts referred to in paragraphs 20, 21, 22 and 23, as is obscurely suggested in paragraph 24 — then, looked at collectively, the acts were continuing and, hence, the proceedings would be within time. That involves treating the expression “the act complained of” as encompassing all of the acts alleged. The reference to “act” singular includes a reference to “act” plural: Legislation Act 2001 (ACT), s 145. However, notwithstanding the obscurity of some of the language in the pleading, particularly paragraph 24, as pointed out earlier, counsel for the plaintiffs made it clear that paragraph 20 was alleged as a discrete infringement of the rights of the plaintiffs and not a small part of an overall course of conduct which was alleged, as a whole, to infringe the plaintiffs’ rights. Therefore, it is clear that the limitation period is applicable, and an extension of time is required if the claim is to proceed.
I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 4 April 2025
House
ACT [2025] ACTSC 122
(1993) 45 FCR 441
(1984) 3 FCR 344
The relief sought is a declaration under s 40C(6) of the HR Act that the first defendant has contravened s 40B. Separate declarations are sought in relation to each of the matters referred to in paragraphs 20, 21, 22 and 23 of the pleadings.
Several observations can be made about these pleadings: (a) The references at paragraph 4 to “connection with land … under traditional laws and customs” pick up the language in s 27(2)(b) of the HR Act. (b) There are no pleadings relevant to paragraph 20 that assert any facts relevant to a breach of s 27(2)(a). (There is, however, reference to the rights in s 27(2)(a) in paragraph 23, even though there is no earlier pleading of any facts relevant to identifying what “cultural heritage and distinctive spiritual practices, observances beliefs and teachings” or “languages and knowledge” are there referred to.) (c) There is nothing in the pleadings that articulates the link between the conduct alleged at paragraph 20 and the breach alleged at paragraph 25, other than potentially the obscurely-worded paragraph 24, which refers to acts inconsistent with “recognition, valuing or protection of the plaintiff’s cultural heritage rights”. The general reference to “cultural heritage rights” in paragraph 24 does not pick up the language of s 27(2)(b), which refers to “material and economic relationships with the land and waters and other resources”. (d) The allegations in paragraphs 20, 21, 22 and 23 are distinct, and the separate declarations sought in relation to those allegations are suggestive that each reflects a single cause of action. (e) On the other hand, the rather obscurely-worded paragraph 24 could be understood as being a wrapped-up allegation of a course of conduct involving “a denial of the plaintiff’s cultural rights”. However, I note that counsel for the plaintiffs expressly indicated that it was not intended to incorporate the allegation in paragraph 20 in some form of wrapped-up pleading. (f) Paragraph 25 brings all of the different allegations together in a single allegation of a contravention of s 40B. (g) Paragraph 25 bases the claim of acting in a manner incompatible with the plaintiffs’ human rights on both s 27(2) and s 8(2) of the HR Act, even though no declaratory or other relief is sought in relation to any alleged breach of s 8(2). Counsel for the plaintiffs accepted that this was an error in the pleadings.
Proper articulation of the case to be made in pleadings is important in cases alleging breaches of the HR Act because it not only ensures fairness to the other party but also ensures that there is a logical chain of reasoning that links the asserted facts to a breach of the statutory rights in question. The present pleading does not clearly articulate the case to be presented at trial. In summary, in the present case, the claim made at paragraph 20 leaves it unclear as to: (a) what “material and economic relationships with the land and waters and other resources” are alleged; (b) how those relationships are alleged to arise “under traditional laws and customs”; (c) whether the claim at paragraph 20 is asserted as a standalone cause of action or, instead, as part of an overall course of conduct alleged to amount to a denial of the right under s 27(2)(b) (although that has now been clarified orally by counsel); and (d) whether or not s 8(2) of the HR Act has anything to do with the claim and, if so, what (a matter now accepted by counsel as requiring to be remedied).
So far as the administration of justice generally is concerned, it must be borne in mind that: (a) this pleading is one of multiple pleadings alleging a breach of human rights; (b) it alleges facts of very narrow compass; (c) no prejudice is said to arise from it being out of time; (d) no significant consequence for the conduct of any trial is identified; and (e) whether or not the claim is permitted to be made will not affect the need for a trial of the balance of the allegations.
The difficulties with the pleading make it very difficult to determine the merits of the claim. That arises because: (a) the current pleading of paragraph 20 is a bald statement supported only by documentary material; and (b) the facts necessary to be pleaded to articulate what s 27(2)(b) rights are being infringed have not been given.
I accept that the plaintiffs, if given an opportunity, would be able to improve the pleading. That process may, however, expose difficulties for the plaintiffs in articulating a viable cause of action or involve pleading additional facts which alter the significance of the various considerations that go into determining whether an extension of time is appropriate.
Having accepted at least some of the difficulties with the pleadings that I have outlined in these reasons, counsel for the plaintiffs submitted that I should grant an extension of time conditional upon a further pleading being provided. I do not consider that to be an appropriate course because it is not possible to determine in advance the appropriateness of any amendment to the pleadings, and the amendments to the pleadings may alter the considerations relevant to whether or not an extension of time should be granted.
Given the defects in the pleading of the claim in paragraph 20 that I have identified, I consider that the appropriate course is to dismiss the present application, leaving it open to the plaintiffs, if they so wish, to make a further application for an extension of time based upon their amended pleading.
Unless counsel for the plaintiffs says otherwise, I propose to grant leave and direct that the plaintiffs file and serve an amended originating claim and statement of claim along with any further application for an order under s 40C(3) by 17 April 2025. The matter will be listed before the Registrar on 28 April 2025 at 2:30pm for directions, and the Registrar may refer the matter to me if she considers appropriate. So far as costs are concerned, subject to anything that the parties wish to say, I would simply reserve costs of the application and any amendments. [The parties were afforded a further opportunity to be heard.] Orders
The orders of the Court are: (1) The plaintiffs are granted leave and directed to file and serve an amended originating claim and statement of claim and any further application in proceeding seeking an extension of time under s 40C(3) of the Human Rights Act 2004 (ACT) by 17 April 2025. (2) The proceedings are listed for directions before the Registrar on 28 April 2025 at 2:30pm. (3) Parties are directed to confer and attempt to agree upon directions to be made on 28 April 2025 and have leave to provide any proposed directions to the Registrar in advance of that hearing. (4) The costs of the application in proceeding dated 28 January 2025 and the costs thrown away by the amendment of the claim and pleadings are reserved. Note: The Registrar may refer the proceedings to Mossop J on 28 April 2025.