Jack v Chief Executive Officer

Jack v Chief Executive Officer (Housing) (No 1) [2021] NTSC 79

IN THE MATTER of a reference of a question of law to the Supreme Court pursuant to s 28(2)(b) of the Northern Territory Civil and Administrative Tribunal Act 2014 (NT)

• [1] The applicant is a tenant of premises at Laramba in the Northern Territory of Australia. The respondent is the landlord of the premises. On 13 October 2020, the President of the Northern Territory Civil and Administrative Tribunal referred two questions of law to the Supreme Court pursuant to s 28(2)(b) of the Northern Territory Civil and Administrative Tribunal Act 2014 (NT). Those questions are:

(a) For the purposes of a tenancy agreement within the meaning of the Residential Tenancies Act 1999 (NT), does the term that arises by virtue of s 48(1) of that Act have the effect on the facts and circumstances of this case that the landlord must ensure that water supplied by others to premises subject to the agreement does not contain levels of uranium that are unsafe for drinking?

(b) Further, or alternatively, for the purposes of a tenancy agreement within the meaning of the Residential Tenancies Act 1999 (NT), does the term that arises by virtue of s 48(1) of that Act have the effect in the facts and circumstances of this case that the landlord must ensure that water supplied by others to premises subject to the agreement is safe for drinking?

• [2] The respondent contends that the facts and circumstances of the case have not been the subject of evidence and findings in proceedings before the Tribunal, and that the reference is therefore premature. The questions arising for preliminary determination are whether there are factual issues relevant to the questions of law which have yet to be determined such that the reference should at this stage be refused; and, if so, which party should pay the costs of the reference.

• [3] The applicant became a tenant of the premises in or about 2010. In March 2020, the applicant was substituted as the applicant in proceedings which had been commenced in the Tribunal under the Residential Tenancies Act. So far as is relevant for these purposes, that application asserted that the only water made available by the landlord at the premises contained concentrations of uranium nearly three times the maximum safe level for ingestion prescribed by the Australian Drinking Water Guidelines, and that the premises were thereby uninhabitable in breach of the term implied by s 48(1) of the Residential Tenancies Act. The Chief Executive Officer (Housing), a corporation sole established under the Housing Act 1982 (NT) to conduct public and social housing functions, was named as the respondent to that application. As stated, the Chief Executive Officer (Housing) is nominally the 'landlord' of the premises for the purposes of the Residential Tenancies Act.
• [4] The application sought the payment of compensation pursuant to s 122 of the Residential Tenancies Act for loss and damage suffered as a result of that alleged non-compliance; and an order requiring the respondent to install a system or filter at the premises to remove uranium from the water emanating from at least one tap in the kitchen to below the maximum safe drinking level set by the Australian Drinking Water Guidelines.
• [5] The application was one of 24 applications of a similar nature which were filed in November 2019. Three of those applications, including the one presently under consideration, were selected as test cases in which the respondent provided discovery of specific categories of document. The three test cases were then set down for hearing in April 2020. As a result of travel and other restrictions which subsequently ensued, that hearing was vacated and the Tribunal made orders for the parties to file written submissions on preliminary issues which could be determined 'on the papers'. Those issues included:

... the question of how the level of uranium in the water at the relevant premises constitutes a breach of the Residential Tenancies Act 1999 and any subsequent remedy available under the Act.

• [6] At that particular stage of the proceedings the applicant was urging the Tribunal to determine all issues in dispute 'on the papers', apart from the final quantum of compensation. Conversely, the respondent submitted that there were no legal questions ripe for determination on a separate basis and 'on the papers', that the Tribunal should not seek to determine any issues separately and in advance of the final hearing, and that the matter should proceed to a final hearing as soon as that became feasible. The Tribunal acceded to the applicant's submission in that respect, at least in so far as the preliminary issues identified were concerned.
• [7] On 1 July 2020, the Tribunal delivered Reasons on a number of what were characterised as preliminary issues. One of the Tribunal's findings was, in effect, that the respondent was not in breach of the term implied by s 48(1) of the Residential Tenancies Act requiring the premises to be habitable. The principal bases for that finding was that water was supplied to the premises by the Power and Water Corporation pursuant to its statutory functions under the Power and Water Corporation Act 1987 (NT), rather than by the respondent, and that the quality of the water was attributable to 'environmental factors emanating from outside the boundary of the premises'. On the Tribunal's reasoning, the respondent could not be in breach of its statutory obligation as landlord to ensure that the premises were habitable by reason of the quality of the water supplied to the premises.
• [8] On 27 July 2020, the applicant commenced proceedings in the Tribunal seeking an internal review of the findings made on 1 July 2020. The parties filed written submissions addressing the water supply issue on 4 and 11 September 2020 respectively. At no point in the course of its written submissions did the applicant contend that further evidence or factual findings were necessary in order to allow the preliminary determination of the landlord's obligation to ensure that the premises were habitable by reason of the quality of the water supplied to the premises. Rather, the applicant pressed for a determination in its favour of the basis that the analysis conducted by the Tribunal at first instance was flawed. The respondent's submissions recognised its earlier opposition to having isolated issues determined on the papers and without a hearing of the factual evidence given the 'risk of fragmentation through multiple appeals and trial proceedings, with all of the associated cost and inconvenience to the parties'. However, the respondent submitted that the Tribunal had already proceeded down that path, that the proceedings had already been fragmented by the application for internal review, and that the appropriate course of action was for the Tribunal in the internal review application to proceed on the same basis without broadening the scope of the proceedings.
• [9] On 13 October 2020, the Tribunal determined to refer the two questions of law to the Supreme Court. In its Reasons for making the referral, the Tribunal noted that the parties were not in agreement as to the course the review proceedings should take. The applicant submitted that the Tribunal should consider both the 'legal question' determined at first instance and the 'factual question' of whether the uranium levels in the water posed a risk to the health and safety of residents. The respondent submitted that the Tribunal should confine its attention to the 'legal question', and then refer the matter back to the Tribunal at first instance if the answer to that question gave rise to a need for any further hearing of factual matters.
• [10] At the directions hearing on 16 September 2020, the Tribunal indicated that it was inclined to refer the 'legal question' to the Supreme Court. The applicant was opposed to a referral, but not apparently on the basis that further evidence or findings of fact were necessary to sustain a referral. The respondent did not actively oppose a referral, but indicated a preference for the Tribunal to determine the 'legal question' by way of internal review. Despite that resistance, during the directions hearing the parties agreed that if the Tribunal were to refer a question of law to the Supreme Court, it should be in the following form:

... whether the respondent's obligations as landlord under the Residential Tenancies Act 1999 (NT) include ensuring that water supplied to premises leased by it to the applicant does not contain levels of uranium that are unsafe for drinking.

• [11] In its subsequent Reasons, the Tribunal noted that the question referred was to be framed slightly differently, and to include an alternative question without reference to uranium levels. The form of the questions ultimately referred are as extracted in the first paragraph of these Reasons.

• [12] When the parties first came before this Court on the reference, counsel for the applicant took issue with the form of the questions referred and foreshadowed an application for judicial review on the basis that the applicant had been denied procedural fairness in relation to the matter. The substance of that complaint was not made entirely clear, but it presumably turned on the inclusion of the formulation 'water supplied by others' in the questions as referred. Counsel for the applicant also contended that the matter was not ripe for reference to the Supreme Court, or further reference to the Full Court. The only factual matter said by the applicant at that stage to be necessary for the conduct of the reference proceedings was whether there was any contractual or financial relationship between the applicant and the Power and Water Corporation. It may be noted in those respects that the gravamen of the Tribunal's decision at first instance was that the water was supplied to the premises by the Power and Water Corporation rather than by the respondent, and the applicant did not contend in the internal review proceedings that further evidence or factual findings were necessary in order to allow the preliminary determination of the question.
• [13] On 19 November 2020, that referral from the Tribunal was referred in turn to the Full Court pursuant to s 21 of the Supreme Court Act 1979 (NT). That reference was initially listed for hearing before the Full Court on 24 February 2021, immediately following the hearing of an appeal by the Court of Appeal in a matter which also involved a question concerning the proper construction of s 48(1) of the Residential Tenancies Act. The same legal representatives were acting for the tenants and landlord respectively in both that appeal and the reference to the Supreme Court.
• [14] On 30 November 2020, 11 days after that further reference was made, the applicant commenced separate proceedings against the respondent by Writ filed in the original jurisdiction of the Supreme Court. Those proceedings effectively sought the same relief which the applicant claimed in the proceedings before the Tribunal. Those proceedings are subject to the related decision in Jack v Chief Executive Officer (Housing) (No 2) [2021] NTSC 81, which was delivered contemporaneously with these Reasons.
• [15] The respondent in these proceedings, which is the defendant in the parallel proceedings commenced in the original jurisdiction of the Supreme Court, filed affidavit material during the course and for the purpose of various interlocutory applications which were prosecuted in those parallel proceedings. One of those affidavits[1] contained the following depositions:

(a) The deponent is employed as the Senior Director of Infrastructure by the Department of Territory Families, Housing and Communities. Prior to commencing in that position he was employed in the water infrastructure division of the Power and Water Corporation between 2008 and 2016.

(b) Through the agency of the Department of Territory Families, Housing and Communities, the Northern Territory Government funds the Power and Water Corporation and its wholly owned subsidiary Indigenous Essential Services Pty Ltd for the delivery of water in remote communities and outstations. That arises under the Department's responsibility for the coordination of funding for the delivery of essential services in 72 remote communities on behalf of the Northern Territory of Australia

(c) The Power and Water Corporation is a government-owned corporation. Indigenous Essential Services Pty Ltd is a fully owned subsidiary of the Power and Water Corporation which has no employees, but which owns the remote utility assets and is responsible for services in remote areas.

(d) If there was an issue with or failure of the water supply to the Laramba community, the Department and the respondent relied on the Power and Water Corporation to rectify it.

• [16] On the basis of those depositions made in the parallel proceedings, on 14 January 2021 the applicant served a Notice to Admit on the respondent in the within reference proceedings. That notice sought admissions consistent with the depositions in the affidavit. When the reference came on for mention on 1 February 2021, counsel for the respondent took objection to the attempt by the applicant to introduce new facts to the reference by way of that procedure. Counsel for the applicant repeated the submission that the proceeding was not ripe for reference to the Supreme Court, and sought to have the reference refused. The applicant also made the point that had the proceedings been transferred pursuant to s 99A of the Northern Territory Civil and Administrative Tribunal Act, the Supreme Court would have been empowered to determine any factual issues necessary. Of course, that submission fails to acknowledge that the applicant did not assert that any further evidence was required for the determination of the 'legal question' in the context of the internal review proceedings.
• [17] However, as matters presently stand, it is plain that the issue of funding arrangements between the Northern Territory Government and the Power and Water Corporation, and its wholly owned subsidiary Indigenous Essential Services Pty Ltd, for the delivery of water to premises at Laramba, requires determinations of fact which may bear on the question to be determined by the Tribunal in the internal review proceedings. Although, for the reasons described in Jack v Chief Executive Officer (Housing) (No 2) [2021] NTSC 81, the respondent has a legal personality which is quite separate to that of the Northern Territory of Australia, and the body politic is not the respondent's 'agent' in any relevant sense, the factual enquiry into funding arrangements for the delivery of essential services to the premises may conceivably inform the question of whether responsibility for the supply of water to the premises may be attributed solely to the Power and Water Corporation rather than to the department with responsibility for the provision of housing in remote communities. That factual enquiry may, in turn, conceivably bear upon the content of the landlord's obligations. For that reason, the appropriate course is to send the reference back to the Tribunal for the purpose of receiving evidence and making factual findings in relation to that and any other necessary issue.

• [18] The applicant seeks an order that the respondent pay his costs of the referral to this Court. That application is made on the grounds that the referral was opposed by the applicant from the time the matter was first raised by the Tribunal on 16 September 2020 on the basis that the Tribunal should make additional factual findings; that the respondent did not object to the referral; that during the course of the reference proceedings the respondent refused to admit that there was no contractual or financial relationship between the applicant and the Power and Water Corporation; and that the respondent's failure to admit the absence of a contractual financial relationship was the 'very issue' first raised by the applicant in this Court in objecting to the referral and which has ultimately led to the refusal of the referral.
• [19] Conversely, the respondent submits that there should be no order as to the costs of the reference proceedings in this Court, with the consequence that each party would bear its own costs of the proceedings. That submission is made on the basis that the proceedings have been concluded before any final determination; neither party could be considered 'successful' in the proceeding; and the refusal of the reference is attributable to a change in the applicant's position.
• [20] A number of observations may be made in relation to those competing submissions.
• [21] First, the applicant did not oppose the determination of the preliminary issue by the Tribunal at first instance 'on the papers'. He did not suggest that any further evidence and/or factual findings were necessary for that purpose.
• [22] Second, the applicant's opposition to the referral of the question of law was not made on the basis that the Tribunal should make general factual findings additional to those made at first instance. The applicant's position was only that the Tribunal should consider the 'legal question' determined at first instance and 'the factual question whether uranium levels in the water at Laramba pose a risk to the health and safety of residents'.
• [23] Third, the respondent did not consent to or otherwise agitate for the referral of the question of law to the Supreme Court. The respondent indicated a preference for the Tribunal to determine the 'legal question' by way of internal review, but did not actively oppose a reference given that the proceedings had already been fragmented by the Tribunal's determination to deal with preliminary issues.
• [24] Finally, the matter of fact initially identified by the applicant as necessary for the determination of the reference was the existence or otherwise of a financial relationship between the applicant and the Power and Water Corporation. For the reasons which have been described, that was not the 'very issue' which led to the refusal of the reference.
• [25] In those circumstances, the appropriate result is that each party should bear its own costs of and incidental to the reference proceedings in the Supreme Court.

1. The Reference of a Question of Law to the Supreme Court made on 13 October 2020 is sent back to the Northern Territory Civil and Administrative Tribunal.

2. There is no order as to costs in these proceedings.

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[1] Affidavit of Lindsay Smith made on 18 December 2020.